author: SPAETH, Judge:

text:
    451 A.2d 527
    Ronald HOLLY, Mary Holly, his wife, Mark Holly and Diane Chamberlain, Appellants, v. Linda LEWIS.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Oct. 8, 1982.

      Ralph P. Carey, Scranton, for appellants.
    John R. Dean, Montrose, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an action for the partition of real estate. The lower court ordered the property—a 290 acre tract—partitioned one sixth to appellee and five sixths to appellants, appellants to hold their part as tenants-in-common. Although appellants have failed to provide “a short conclusion stating the precise relief sought,” Pa.R.A.P. 2111(a)(7), we assume from their argument, that the property is not capable of division without prejudice to the whole, that they seek an order vacating the lower court’s order and remanding for partition by private sale in accordance with Pa.R.Civ.P. 1563. However, we do not consider appellants’ argument, and intimate no opinion as to its merits, for the lower court improperly found that appellants had elected to retain their interest in the property as tenants-in-common. We therefore remand for further proceedings.

Before this dispute arose, Ronald Holly and his wife, Mary, owned an undivided one-half interest in the property, and Sandford Holly, Ronald’s brother, owned the remaining one-half interest. On November 29, 1977, Sandford died leaving his interest in the property in equal shares to the children of Ronald and Mary Holly: Diane Chamberlain, Mark Holly, and Linda Lewis. On January 8, 1979, Ronald, Mary, Diane, and Mark filed a complaint for partition against Linda, asking

that the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the said real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales of the same may be made by such persons and in such manner as your Honorable Court may direct .... Complaint # 12(b).

On February 8, 1979, default judgment was taken against Linda, and the lower court directed partition, one half to Ronald and Mary, and one sixth to each of Diane, Mark, and Linda. A master was appointed, a hearing was conducted, and the property was surveyed and appraised. The master found that the property was capable of division, without prejudice to or spoiling the whole, into purparts proportionate in value to the respective interests of the several parties. However, the master did not so divide the property, but instead, divided it into two portions, one portion, a sixth, going to Linda and the other portion, five sixths, to Ronald, Mary, Diane, and Mark, to be held by them as tenants-in-common. The basis of this division was the master’s finding that “[o]n December 14, 1979, the Plaintiffs [Ronald, Mary, Diane, and Mark] elected to retain their interests in the real estate as tenants in. common. Therefore, the duty of the Master was to set aside Linda Lewis’s one-sixth share in the property, if possible.” R. 28a. The lower court confirmed the master’s report and entered a decree nisi accordingly. Ronald, Mary, Diane, and Mark filed exceptions. When the lower court dismissed the exceptions and made the decree nisi final, Ronald, Mary, Diane, and Mark took this appeal.

The lower court “shall permit the shares of any two or more co-tenants to remain undivided between them if they so elect by writing filed within such time as the court or master shall direct.” Pa.R.Civ.P. 1565(a). As noted above, here the master found that appellants did so elect. However, we find no evidence of record to support the master’s finding.

The rules distinguish between “property capable of division without prejudice” and “property not capable of division without prejudice.” Under Rules 1560, 1561, and 1562, property capable of division without prejudice “shall be divided” in certain ways. Under Rule 1563(a) property not capable of division without prejudice “shall be offered for private sale confined to the parties,” except, however, “as otherwise provided in Subdivision (b).” Rule 1563(b) provides:

(b) Parties defendant owning a majority in value of the property may object in writing to any sale, requesting that the property be awarded to them at its valuation fixed by the court and that their interests remain undivided. Upon such request the entire property shall be awarded to the parties objecting to sale, as tenants in common, subject to the payment to the parties desiring partition and sale of the amounts of their respective interests based upon the valuation. The amounts due the parties shall be charged as liens upon the property, and be paid in such manner and time as the court may direct.

Here, appellants filed a document entitled “Election of Plaintiffs Under Rule 1563” which read:

TO: PROTHONOTARY
Pursuant to Rule 1563 (Equity) on behalf of the Plaintiffs, RONALD HOLLY and MARY HOLLY, his wife, and MARK HOLLY and DIANE CHAMBERLAIN, you are hereby notified that the said Plaintiffs request that an Award be made reflecting their interest as tenants in common.
You are hereby further notified that any plan for division of the real estate, except pursuant to Rule 1563, will be rejected by the Plaintiffs since the real estate in question is not capable of division without prejudice. Any such plan proposed by the Defendant [appellee, Linda Lewis], or the Master, will be rejected by the Plaintiffs, and the division should be made pursuant to Rule 1563. R. 20a.

This document, no doubt, is the document the master had in mind when he found that “plaintiffs elected to retain their interests in the real estate as tenants in common.” We cannot accept the finding, however.

In the first place, appellants’ election was not under Rule 1565, which, as noted above, provides that co-tenants may elect to have their shares remain undivided. The election was under Rule 1563. And in the second place, the document was a nullity. Under Rule 1563 it is “[pjarties defendant ” who may file an election; appellants are parties plaintiff. Furthermore, Rule 1563 applies only where the property is not capable of division without prejudice. Here, the master found, and the lower court confirmed the finding, the property is capable of division without prejudice. R. 27a. Rule 1563, therefore, did not come into play at all, and the master should have proceeded under Rules 1560, 1561, and 1562 to divide the property in one of the ways specified in those rules.

We must therefore vacate the final decree and remand so that the master may order a proper division of the property. If he deems it necessary, the master may require further testimony. Any party may then file exceptions to that division ordered by the master, and the case shall proceed accordingly. We are aware that in the exceptions already filed, appellants argued that the property is not capable of division without prejudice, and that the lower court has dismissed those exceptions. It might be held, therefore, that the issue of the capability of division has been resolved against appellants, and that we should now review that issue on its merits. We believe, however, that it will be better to permit appellants again to except to the master’s finding that the property is not capable of division without prejudice, for we cannot tell to what extent that finding, and the lower court’s confirmation of it, may have been affected by the master’s and lower court’s mistaken impression that appellants had elected to hold their five sixths interest as tenants-in-common.

The final decree is vacated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    451 A.2d 530
    Theodore FUHRMAN v. Stuart DOLL, Donald E. Wolfgang, Tom K. Doll, Walter Everhart, Richard Everhart, Scott Everhart, Lloyd Kauffman, Ray Sollenberger, Donale E. Wolfgang, Howard D. Hess, Jr., Charles Witmer and Jay Kirchner, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Oct. 8, 1982.

      Daniel W. Shoemaker, York, for appellants.
    No appearance entered nor briefs submitted on behalf of appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of partition entered by the court in Tioga County.

HISTORY OF THE CASE

In 1958 a group of men from York County desired to purchase a hunting camp in Tioga County. When they did so they took title in the names of three of their members “as Trustees for ‘North York Club’ ”. The club had a constitution and by-laws which fixed “the value of said membership” at $200.00. This was later changed to $300.00. In 1974 the club took advantage of an opportunity to purchase an adjoining tract of land, this time taking title in the name of twelve named members as “Trustees for ‘North York Club’ ”. At the same time the three named grantees of the original parcel of land conveyed that parcel to the same twelve and in the same capacity. The twelve grantees included the three “trustee” grantors. Appellee, Theodore Fuhrman, was one of the originators of the club and was one of the twelve grantees in the two 1974 deeds. In 1978 Fuhrman was given notice of his termination from the club and was tendered a check in the sum of $300.00 for the value of his membership.

Fuhrman instituted the present suit in which he sought partition of the real estate. Trial was held before Judge Kemp who decreed that the property was subject to partition. After consideration of exceptions to the decree the court concluded as a matter of law that the twelve grantees in the two deeds were tenants in common and reaffirmed its order of partition. The court further concluded that Fuhrman “is a member of the North York Club, the attempted expulsion from membership being without due process and pursuant to adopted rules and regulations of the by laws”.

On appeal we do not have the benefit of a brief on behalf of appellee. We have therefore examined the complaint and the record to determine the nature of appellee’s claim. In so doing we find that Fuhrman in his complaint sought only the remedy of partition. The issues were not framed, nor was the evidence directed to the general issue of the propriety of Mr. Fuhrman’s expulsion from the North York Club. Moreover, the appellee testified that he did not seek reinstatement as a member. The only question before the Court was whether or not the appellee was entitled to partition.

DISCUSSION

Resolution of the question of entitlement to partition does not simply depend upon whether the ownership of land is as joint tenants or tenants in common, for under Pennsylvania law in proper circumstances property held in either designation may be partitioned. See Larendon Estate, 439 Pa. 535, 266 A.2d 763 (1970); Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); 28 P.L.E. Partition § 22-24; Ladner on Conveyancing in Pennsylvania, Revised Fourth Edition (1979) § 1.06.

Even property held as tenants by the entireties may be partitioned if there has been conduct on the part of one owner which amounts to an offer to terminate the entireties relationship. See Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961); Lindenfelser v. Lindenfelser, 396 Pa. 530, 153 A.2d 901 (1959); DeLuca v. DeLuca, 388 Pa. 167, 130 A.2d 179 (1957).

Nor do we think that the proper analysis in this case is whether or not the property in Tioga County was held in trust by the named grantees. We recognize that many cases deal with the distinction between active and inactive (dry) trusts and hold that if there is an active trust with continuing duties there may be no partition of the title. Ewalt v. Davenhill, 257 Pa. 385, 101 A. 756 (1917); Johnson v. Gaul, 228 Pa. 75, 77 A. 399 (1910); Hutchison’s Appeal, 82 Pa. 509 (1876); Owens v. Naughton, 23 Pa.Super. 639 (1903). Here, however, while the members held the title to the real estate as “trustees for ‘North York Club’ ”, the plain fact is that the North York Club is an unincorporated association and as such it could not hold title to real estate in the name of the organization. Ladner, supra, § 3.10. While the taking of title in the names of individuals as “Trustees” for the North York Club may or may not create a valid legal trust, it, together with the constitution and by-laws makes it apparent that the property was held by the named grantees for the benefit of the present and future membership of the club and was not meant to convey to each grantee all of the rights and incidents of a tenancy in common or a joint tenancy.

The North York Club had a constitution and by-laws which controlled the membership and provided for usage of the Tioga County camp by the club members during the deer season and at other times. It also provided for payment of a certain sum upon death or resignation from the club. Testimony at trial showed that of the twelve named in the deed only seven were still members at the time of trial. An examination of the 1974 deed from the three trustees to the twelve trustees is further evidence of the intention of the members of the club. The deed provides:

The Trustees of the North York Club are authorized and empowered by the by-laws of the North York Club to convey, sell, transfer, rent, release or transact in the property description hereinbefore, provided all the members of the North York Club consent in writing to the action of the trustees.

It is evident that the membership used the “as trustees” terminology in taking title to the club property simply as a convenient designation to express their intent that the property was being held for the benefit of the entire membership and that they were not concerned with the complexities of trust law. The club was formed in 1958 by a group of men who were raised together and desired to have a hunting camp for the benefit of the membership. The members met on a regular basis and would, on occasion, go to the camp to do work. The membership changed from time to time. The by-laws regulated the usage of the camp including a provision for safety rules.

The history of the club, the changes in membership without alteration of the club structure, and the conduct of the affairs of the club lead us to conclude that it is intended that the continued operation and ownership of the camp in Tioga County should not be subject to termination by reason of the will of a single member.

An agreement limiting the right to partition need not be express; it may be implied from the circumstances in which the property was acquired or is held. Shoup v. Shoup, 469 Pa. 165, 170, 364 A.2d 1319, 1323 (1976). As early as Brown v. Lutheran Church, 23 Pa. 495 (1854), our Supreme Court found from the circumstances of the joint ownership of a church and burial grounds by separate religious congregations that an order to partition the real estate was not appropriate. This principle received further recognition in Latshaw’s Appeal, 122 Pa. 142, 153, 15 A. 676 (1888): “. . .. as we have already shown, even admitting the premise assumed, the conclusion is not sound, for, on all authority, this right [partition] may be waived by agreement, express or implied, of the tenants in common.” See also 37 A.L.R. 3rd 962; Duffy v. Duffy, 81 D & C 366 (1951).

Cases dealing with the rights of club members to assert a direct interest in real estate owned by the association also demonstrate that the test to be applied is the intention of the parties as expressed in their agreements, constitutions or rules. See Nesbitt v. Litz Hunting Club, 24 D & C 2d 706 (1960) (membership in organization held not to include right to transfer ownership to another); Dutrow v. Bohn, 15 D & C 2d 779 (1958) (evidence indicated that members were treated as having transferable interest in club assets. There was no constitution or by-laws and “[H]ence a court may consider the manner in which the numbers treated or disposed of their interests in the property as showing their construction and understanding of their respective rights therein”. 15 D & C 2d at 781. Court concluded that each member was considered as having an equal and undivided interest in the leasehold. Partition granted).

We believe that in this case the court erred in entering an order granting partition. An examination of the evidence including the deeds, by-laws and constitution and, importantly, the actions of the club members in dealing with each other and the club’s property at the inception of the association and during its existence, leads us to conclude that there is an implied prohibition against partition at the request of one of the members whose name appears on the deed.

Since this was a suit in partition only, our order is that the decree directing partition be reversed. We make no disposition as to the appellee’s rights, if any, as against the members of the North York Club or its assets.

Order reversed.

      . Justice Woodward, speaking for the court with a wisdom that belongs to the ages, added:
      “Whether there be any other remedy at law for the differences of these tenants in common, it is not our duty t;o inquire, but it may not be amiss to suggest that they can agree on terms of separation, and settle their difficulties among themselves far more advantageously than the law can do it for them.”
      23 Pa. at 501.


author: WICKERSHAM, Judge.

text:
    451 A.2d 533
    COMMONWEALTH of Pennsylvania, Appellant v. Nicholas SHEPPARD.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed Oct. 8, 1982.

      Garold Edward Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jules Epstein, Assistant Public Defender, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge.

On November 19, 1980, Nicholas Sheppard was convicted in a non-jury trial before the Honorable Thomas A. White of the crimes of robbery, theft by unlawful taking or disposition and by receiving stolen property and criminal conspiracy.

On April 22, 1981, Judge White discharged the defendant “under Rule 1100.” We reverse and remand for post-verdict proceedings.

At trial Ann Marie Borget testified that on April 17, 1980 she was coming home from the grocery store, entering her apartment at 45th and Spruce Streets in the City of Philadelphia. She said:

A. Okay. I had my keys and was opening the door. Q. Which door were you opening?
A. The outside door. Well, there’s sort of a vestibule door which requires no keys for entry and then there’s an additional door several feet in front of that which requires a key for entry. I was in the process of opening that door and I felt myself being pushed, but it happened very quickly. Then I was inside the door and someone was hitting my head and then I felt my purse being pulled from my left arm, I think it was, and I dropped the grocery bag which was in the other arm and the people took off and I went upstairs and called the police. Q. Now, other than having the purse pulled from your arm, were you touched in any way?
A. Yeah. The person standing in front of me hit me. I mean I’m not saying he punched me but I felt it was, you know, it was a distraction, and the next thing I knew the purse was being pulled.
Q. Where were you struck?
A. As I remember it, it was very, very quickly and it was on the head and I think on the face, but I’m not sure. I wasn’t punched. It was something else.
Q. And approximately how long after the incident actually took place, the purse snatch took place, did the police come back with your items?
A. Okay. I must have placed the call between 20 of and quarter of eight, and the policeman arrived easily ten minutes, if that.
Q. Is that the first one?
A. First one, and probably no more than five minutes. Q. So, a total of 15 minutes from the incident?
A. Yes, 15 to 20. Perhaps 20.

Record at 38-45.

Prior to trial, on November 3, 1980, a hearing was held before the Honorable Ethan Allen Doty on a Commonwealth petition to extend Rule 1100. The facts revealed that the criminal complaint had been filed April 18, 1980 and the Commonwealth petition to extend was filed October 9, 1980, in timely fashion. James Pabarue, Assistant District Attorney, City of Philadelphia, testified. He said:

Q. Now, Mr. Pabarue, I hand you the Commonwealth’s file in Commonwealth versus Nicholas Sheppard. Did you handle that matter on October the 2nd?
A. Yes, I did.
Q. In what courtroom?
A. Room 432 in front of Judge White.
Q. Did you handle the list of cases listed on October 2nd, room 432?
A. Yes, I did.
Q. How many cases were listed?
A. Somewhere in the neighborhood of twelve to fifteen. Q. Now, did you mark this file in Commonwealth versus Nicholas Sheppard?
A. Yes, I did.
Q. Will you please indicate to the Court how you marked the file, and based on those markings your recollection as to what occurred on that date.
A. Yes, sir.
Your Honor, this case, Commonwealth versus Nicholas Sheppard, was listed as a co-defendant’s case. I believe on the co-defendant’s case there was a defense request for a continuance. I informed Judge White in the morning at the call of the list that our complainant on both cases was on alert. I informed the Judge that I was prepared to sever these cases and proceed with the case of Commonwealth versus Nicholas Sheppard.
Judge White informed me that since I did not have my complainant there in the room available right away to go, that he considered us not prepared. I informed the Court that my complainant would be in in a matter of minutes and I would be able to bring him in. But the Judge ordered the case continued with the co-defendant’s case and gave it a date of 11-10. I asked for the earliest possible date. And before that date was given I asked for the earliest possible date. It was given to me by the court officer after a phone call was made. The case was continued.
This case, Commonwealth versus Nicholas Sheppard, was continued over my objection since I informed the Court that we were ready to proceed, that it was just a matter of bringing our witness in who I contacted before and ascertained was on call.

Record at 4-6.

Mr. Pabarue explained to Judge Doty, in his further testimony, that Ann Marie Borget was his witness and that she was located on the day in question at 548 South 48th Street, Philadelphia, on call. She had been alerted the day before that she would be needed and was on “a half hour call.” Mr. Pabarue testified that she was not feeling well and was home that day, not at work. Record at 9. Following the hearing, Judge Doty stated:

However, the Court finds as a fact that the Commonwealth’s petition was timely filed.
The Court further finds that the run-date for Rule 1100 was October 15, 1980; that the matter was listed July 23, 1980. At that time when it was listed both sides were ready and the Court continued it at 4:30 p.m.
The matter was then listed October the 2nd, 1980, and according to the testimony of Assistant District Attorney Pabarue the Court continued the matter to November the 19th, 1980 in room 432. Apparently this matter had been assigned to Judge White and it was assigned to a date in which Judge White would be in that courtroom.
The Court finds as a fact that the Commonwealth used due diligence in this matter, and therefore the matter is extended until November the 20th, 1980.

Record at 16-17.

When Judge White discharged the defendant “under Rule 1100” on April 22, 1981, he said on the record:

THE COURT: Regarding the 1100 issue, I recall___I can’t say specifically___but I do recall the situation. We had eighteen cases listed that day. I reviewed my file and checked it, and this was a co-defendant case. The case was continued. The co-defendant’s case was continued because of the unavailability of the attorney. The District Attorney wished to sever the case. However, his witnesses were not in the room. [They] were on call, and this is where apparently there’s a difference of agreement between Judges and___as well as between counsel. If a case is called and a witness is not in the room, my contention is the case is not ready___if a witness is not in the room and the witness is on call. As a practical matter, I knew that I was not going to complete my entire list that day. In fact, we completed, if my memory serves me correctly, eight cases. We disposed of eight cases out of eighteen which was a good day’s work, but I don’t recall, frankly, what time this case was marked when I marked it Commonwealth not ready. I know they were not ready in the room at the time the case was first called. I know they were not ready the second time the case was reviewed, but that could have been shortly after the first call that we called it again. I’m trying to reconcile whether that would be due diligence or not.
Regarding the 1100 issue, I guess this is a case that’s going to go on appeal and possibly should be. It is my contention that the Commonwealth is not ready when the witness is not in the room and when a case is called to trial. Especially in our crowded dockets, if the witnesses are not here in the room we can’t go forward with that case and we must, of necessity, go into other cases, otherwise we would never clear our docket.
In my opinion, the Commonwealth did not exercise due diligence and therefore, the defendant is discharged under Rule 1100.

Record at 7-8, 12-13.

The issue presented by this Commonwealth appeal is whether placing a Commonwealth witness on call, so that she would be available for trial within minutes, constitutes a lack of due diligence entitling defendant to a discharge from criminal liability under Pa.R.Crim.P. 1100. We hold that such is not a lack of due diligence; therefore appellant’s convictions for robbery and related offenses will be reinstated and the case remanded for further proceedings consistent with this opinion.

At the first trial listing on July 23, 1980, both the Commonwealth and defendant were prepared for trial but Judge White did not reach the case (Reproduced Record at 6a) (continuance sheet marked. “Both sides ready. Case not reached .. . ”). At defendant’s second trial listing on October 2, 1980, thirteen days before the mechanical Pa.R. Crim.P. 1100 rúndate, Judge White refused to allow the Commonwealth to proceed to trial because it had placed the complaining witness on call. Although the Rule 1100 hearing court found that the Commonwealth had been duly diligent and was entitled to a brief Rule 1100 extension, Judge White ruled otherwise on post-verdict motions and discharged defendant.

Judge White applied the extreme sanction of discharge to express his displeasure with the Commonwealth’s placing its witness on call. The discharge was not mandated by Rule 1100. On the contrary, dismissal serves no purpose under Rule 1100 which, in the absence of “misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused . . . must be construed in a manner consistent with society’s right to punish and deter crime.” Commonwealth v. Genovese, 493 Pa. 65, 72, 425 A.2d 367, 371 (1981) (emphasis added).

Judge White’s use of a Rule 1100 discharge to express his own disapproval of placing witnesses on call is not only inappropriate but also ironic since placing witnesses on call actually serves to forward the goals of Rule 1100. At the post-verdict motions hearing, Judge White admitted that, as to the practice of placing witnesses on call, “apparently there’s a difference of agreement between Judges and—as well as between counsel.” (Reproduced Record at 56a). He also admitted that in finding that the Commonwealth was not prepared because its witness was on call, “I know we’re probably parting hairs there a little bit. ... ” (Reproduced Record at 57a-58a). Nonetheless, he found the Commonwealth not to be duly diligent and invoked Rule 1100’s drastic remedy of discharging this convicted robber.

The well-established practice of placing a witness on call at his or her home or place of business preserves the time, expense, and future availability of the witness. It insures that when the defense is actually ready to proceed to trial, the Commonwealth will be ready, unhampered by disillusioned witnesses who have “given up” on the case and stopped showing up for trial listings.

Clearly then, Judge White erred when he continued the case over Commonwealth objection on October 2nd and assigned as the reason for the continuance that the Commonwealth was unprepared.

As a practical matter, I knew that I was not going to complete my entire list that day. In fact, we completed, if my memory serves [me] correctly, eight cases. We disposed of eight cases out of eighteen which was a good days work, but I don’t recall, frankly, what time this case was marked when I marked it Commonwealth not ready.

Reproduced Record at 56a (emphasis added).

The lower court granted relief on an erroneous legal theory and incorrectly concluded that the Commonwealth was not prepared or duly diligent simply because its complaining witness was on call. When the interest at risk is the public’s right to the imposition of appropriate punishment for defendant’s predatory conduct, the lower court’s eagerness to discharge defendant under Rule 1100 in order to express its disapproval of the Commonwealth’s following the well-established practice of having its witness on call, conveys the unfortunate impression of “[s]trained and illogical judicial construction, [which] adds nothing to our search for justice, but only serves to expand the already bloated arsenal” of criminal defendants. Commonwealth v. Genovese, 493 Pa. at 72, 425 A.2d at 371.

The order of April 22, 1981 is reversed. The convictions of Nicholas Sheppard, appellee, of robbery (No. 836 May Session 1980), theft by unlawful taking and by receiving stolen property (No. 837 May Session 1980) and criminal conspiracy (No. 839 May Session 1980) are hereby reinstated. This case is remanded to the lower court for final disposition of post-verdict motions filed by the defendant and for further proceedings consistent "with this opinion.

McEWEN, J., concurs in the result.

      . Following trial and conviction, counsel for Nicholas Sheppard filed a motion for post-verdict relief alleging an error in the refusal of the court to suppress certain physical evidence, further alleging that the verdict was against the weight of the evidence and further raising the Rule 1100 issue. As the court discharged the defendant on the Rule 1100 issue and did not take up the remaining post-verdict contentions, we remand for further proceedings consistent with this opinion.

      . The pertinent provisions of Rule 1100, entitled Prompt Trial, are as follows:
      (a) (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      (b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

      (c) (1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      (c)(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
      (c)(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.


author: WIEAND, Judge:

text:
    451 A.2d 537
    Robert J. BLAIR, Individually and as a Stockholder of Globe Natural Gas Company, Appellant, v. GUTHRIE DEVELOPMENT CORP., A & R Realty Company, John Kaye, Ann Kaye, Aaron Kaye, Robert Kaye and Globe Natural Gas Company.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed Oct. 8, 1982.

      Anthony H. Chambers, Bradford, for appellant.
    Scott Fergus, Washington, for appellees.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

This is an appeal from an order summarily dismissing an amended complaint in equity. We reverse. The order was procedurally irregular and substantively unwarranted.

An initial complaint, filed by Robert J. Blair, alleged that Globe Natural Gas Company, a corporation in which he was a stockholder, had been defrauded by the manner in which John Kaye, Ann Kaye, Aaron Kaye, Robert Kaye, A & R Realty Company and Guthrie Development Corporation, defendants, had dealt with corporate assets. The complaint was accompanied by a request for a temporary injunction restraining appellees from receiving or disposing of the assets of the corporate parties. The court set a hearing on this request for October 21, 1980. On the day of the hearing, defendants, John Kaye, Ann Kaye and A & R Realty Company, appeared by counsel and filed preliminary objections to the complaint. After the plaintiff, Robert J. Blair, had been heard, the hearing was recessed, and counsel met with the trial judge in chambers. Thereafter, the following order was entered:

ORDER
AND NOW, to-wit, this 21st day of October, 1980, a preliminary injunction is issued in favor of Plaintiff against Defendants in that Defendants, their heirs, agents, employees or assigns shall not convey or attempt to convey any of the realty as described in that deed under date of May 5, 1978 and as recorded in the Recorder’s Office in Deed Book 405, Page 259 and Quaker State Oil Refinery is enjoined from paying any funds unto the Defendants, corporately and individually, in the nature of royalties or otherwise due to production of oil or gas from said premises. The injunction shall exist until November 5, 1980 at which time the Plaintiff shall have either filed an amended complaint prior thereto or elects to argue the preliminary objections of Defendants filed this date. In the event of the former the Defendants shall file an ánswer or preliminary objections and if the latter same shall be argued on November 5, 1980.
In any event the preliminary objections shall be resolved by the court on November 5, 1980 and a hearing date thereafter set on the merits if appropriate.

Pursuant thereto, an amended complaint was filed on October 30, 1980. On November 5, 1980, counsel for John Kaye, Ann Kaye, and A & R Realty Company appeared and, at the time set for hearing, once again filed preliminary objections. These objections raised questions of jurisdiction, moved to strike the complaint on grounds that it had been improperly endorsed, and sought a more specific complaint. A demurrer also requested that the complaint be dismissed because plaintiff had an adequate remedy at law and because his cause of action was barred by the statute of limitations. Counsel for the plaintiff, who had received a copy of the preliminary objections and defendants’ memorandum of law earlier on the same day, objected to arguing the merits thereof immediately and requested time to review the preliminary objections and prepare for argument. His objection was overruled, argument was held, and the court entered an order as follows:

ORDER
AND NOW, to-wit, this 5th day of November, 1980, the preliminary objections of the Defendant are sustained and the complaint is dismissed without prejudice.

Appellant’s first argument on appeal is that it was procedurally improper to entertain argument and decide preliminary objections on the same day on which they were filed. He contends that the procedure followed by the trial court deprived him of the right to file an amended complaint as of course within ten days as provided by Pa.R.C.P. 1028(c). There is considerable merit in this argument, particularly in view of the trial court’s dismissal of the complaint without further leave to amend. However, we do not rest our decision solely on procedural grounds.

The trial court’s order is difficult to comprehend. It purports to dismiss the complaint without prejudice, but it does not contain leave to amend. The court’s opinion does little to enlighten us regarding the intent of the order or the reasons therefor. We have already observed, however, that the preliminary objections, filed by three of the named defendants, alleged only two substantive reasons for dismissing the complaint, i.e., the statute of limitations and an adequate remedy at law. Neither is a valid reason for dismissing the complaint.

The statute of limitations in the instant action is a waivable, affirmative defense and must be pleaded as new matter. Royal Oil and Gas Corporation v. Tunnelton Mining Company, 444 Pa. 105, 107, 282 A.2d 384, 385 (1971); Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969); Mangino v. Steel Contracting Company, 427 Pa. 533, 235 A.2d 151 (1967); Stoltzfus v. Haus, 234 Pa.Super. 46, 50, 334 A.2d 738, 741 (1975); Pa.R.C.P. 1030. It may not be raised by preliminary objections in the nature of a demurrer. Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558, 566 (1982); Reuben v. O’Brien, 299 Pa.Super. 372, 374, 445 A.2d 801, 802 (1982); Stoltzfus v. Haus, supra 234 Pa.Super. at 50, 334 A.2d at 740-741; Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 73, 310 A.2d 277, 280 (1973). The defendants’ preliminary objections raising the statute of limitations, therefore, provided no basis for dismissing the complaint in the instant case.

Similarly, a complaint in equity cannot properly be dismissed because there exists an adequate remedy at law. Such an objection may be raised by preliminary objections, but if they be sustained, the court is compelled by Pa.R.C.P. 1509(c) to certify the action to the law side of the court. In this respect, the court is given no option; certification to the law side is mandatory. 5 Goodrich-Amram 2d § 1509(c):2. See: Klemow v. Time Incorporated, 466 Pa. 189, 194-195, 352 A.2d 12, 15 (1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); Shaffer v. Dooley, 452 Pa. 414, 416, 308 A.2d 597, 598 (1973); Carelli v. Lyter, 430 Pa. 543, 546, 244 A.2d 6, 8-9 (1968); Aughenbaugh v. North American Refractories Co., 426 Pa. 211, 218, 231 A.2d 173, 177-178 (1967); Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966).

Appellees’ preliminary objections have also attacked the form of appellant’s complaint and have raised complex questions of jurisdiction. These matters have not been determined by the trial court. For this reason, and also because the record contains insufficient facts to permit a decision on the jurisdictional issues, we will remand to permit further consideration of such issues by the trial court.

The order dismissing the complaint is reversed; and the case is remanded to enable the trial court to consider and determine, after argument, those preliminary objections which remain undecided. However, appellant may, if he chooses to do so, file an amended complaint within ten days of the filing of this opinion.

      . Three other defendants had not been served with a copy of the amended complaint.

      . Although we do not decide the merits of these preliminary objections, we have experienced considerable difficulty ascertaining the nature of appellant’s cause of action and unravelling the disorganized facts and requests for relief contained in his amended complaint. We also observe that none of the parties are residents of Pennsylvania and that a connection with this state exists only because some of the corporate assets allegedly dealt with fraudulently by the defendants consist of real estate located in Warren County. Surely appellant can state more succinctly and more articulately the facts upon which his cause of action depends, as well as those facts upon which he relies to vest jurisdiction in the courts of Pennsylvania.


text:
    451 A.2d 540
    COMMONWEALTH of Pennsylvania v. Michael FORREST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1982.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Jan. 14, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Michael Forrest, while awaiting trial on a felony charge, was detained in the sixth floor prison ward of St. Luke’s Medical Center in Philadelphia. On January 4,1980, Forrest climbed through a window and attempted to lower himself to the street below on a chain of bedsheets which had been tied together. He didn’t make it. He was charged, tried by jury and convicted of attempted escape. Post verdict motions were dismissed, and Forrest was sentenced to a term of imprisonment. On direct appeal, he contends that the trial court committed error when it (1) denied his request to waive jury trial and be tried without jury, and (2) inadvertently identified for the jury the felony charge on which appellant was being held at the time when he attempted to leave the prison ward of the hospital. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

Appellant’s case had been assigned to the Honorable James T. McDermott for jury trial. When appellant asked if he could be tried without a jury, the trial judge said that he had no prior knowledge of the case and could, therefore, hear it without jury. During a jury waiver colloquy conducted by defense counsel, it was elicited from appellant that he had earlier agreed to enter a plea of guilty to the attempted escape charge. After this information had been imparted to the trial judge, defense counsel asked appellant if he wanted a “fresh judge” to hear the case. Appellant responded in the affirmative. In response to the Commonwealth’s plea that the case be heard that same day, Judge McDermott attempted to have the case reassigned to another courtroom for trial without jury. However, no other judge was available to hear the trial. Therefore, in order to avoid potential prejudice because of his knowledge that appellant had intended to plead guilty, Judge McDermott ordered the case to trial before a jury in his courtroom.

Contrary to appellant’s assertion, the Commonwealth did not insist upon or argue for a jury trial. Its request to the court was that “it get the case on today one way or the other.” Thus, the issue is not whether the Commonwealth has the right to demand a trial by jury. Compare: Commonwealth v. Wharton, 495 Pa. 581, 435 A.2d 158 (1981). The issue, rather, is whether the trial judge abused his discretion when he required appellant to proceed before a jury.

Pa.R.Crim.P. 1101 provides in pertinent part, as follows:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury.

This rule vests discretion in the trial judge. Commonwealth v. Lee, 262 Pa.Super. 280, 290, 396 A.2d 755, 760 (1978). There is no constitutional reason why a court, under appropriate circumstances, cannot refuse a defense request to be tried without jury. Commonwealth v. Garrison, 242 Pa.Super. 509, 514-15, 364 A.2d 388, 390 (1976). Thus, it has been held that a request for a trial without jury may be denied to prevent a “judge shopping” attempt. See: Commonwealth v. Pettiford, 265 Pa.Super. 466, 469, 402 A.2d 532-33 (1979); Commonwealth v. Garrison, supra.

In the instant case there was no abuse of the trial judge’s discretion. Although the trial judge was initially inclined favorably to the request for trial without jury, appellant’s counsel then brought to the judge’s attention certain information which contained the seeds of a subsequent challenge to the judge’s ability to try the case fairly and impartially. See: Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978). Although we hesitate to accept the Commonwealth’s argument and impute “judge shopping” motives to appellant or his counsel, it is certainly correct that the circumstances created by their own conduct were sufficient to justify the trial judge’s decision that appellant should be tried before a jury. This is particularly so where, as here, the trial judge attempted to assign the case to another courtroom for trial without jury but could find none available. See and compare: Commonwealth v. Lee, supra. Moreover, appellant has failed to suggest, much less demonstrate, any prejudice resulting from the trial judge’s decision requiring trial by jury.

The crime of escape may be a third degree felony or a second degree misdemeanor, depending upon the circumstances under which it is committed. 18 Pa.C.S. § 5121(d). Appellant was charged with escape, a felony. In order to establish this offense, the Commonwealth was required to prove an escape while appellant was under arrest for or detained on a charge of felony or following conviction of crime. 18 Pa.C.S. § 5121(d)(l)(i). The evidence was that appellant had been detained on a felony charge.

During jury instructions, the trial judge inadvertently said that appellant had been detained on robbery charges. When this inadvertence was called to his attention, he instructed the jury that there had been no evidence that appellant had been detained on charges of robbery and that the precise nature of the charge was irrelevant except that the Commonwealth was required to prove that appellant had been detained on a felony charge at the time of his alleged escape. Under these circumstances, the trial judge’s inadvertent mis-statement of the evidence was harmless. It did not deprive appellant of a fair trial and does not warrant the granting of a new trial.

The judgment of sentence is affirmed.

POPOVICH, J., dissents.

      . Only five days remained of the 180 days allowed for commencement of trial by Pa.R.Crim.P. 1100.


text:
    451 A.2d 542
    Thelma O’MALLEY, Administratrix of the Estate of William F. Gavulic, deceased; Thelma O’Malley, Administratrix of the Estate of Shirley Ann Gavulic, deceased; Thelma O’Malley, Administratrix of the Estate of Kevin Gavulic, deceased; Thelma O’Malley, Administratrix of the Estate of Brian Gavulic, deceased, and William Gavulic, a minor, by Thelma O’Malley, his maternal grandmother and natural guardian, and Michael Gavulic, a minor by Thelma O’Malley, his maternal grandmother and natural guardian, Appellants, v. The CONTINENTAL INSURANCE COMPANY, a corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Jan. 31, 1983.

      Peter J. Mansmann, Pittsburgh, for appellants.
    John D. Rhodes, Pittsburgh, for appellee.

      Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

This is an appeal from a judgment entered on the verdict of a jury which found that Continental Insurance Company, appellee, had not provided coverage for and was not required to defend the causes of action asserted against its assured by Thelma O’Malley, appellant herein. We affirm.

William and Shirley Gavulic, together with sons Kevin and Brian, died in a fire at their residence which also made orphans of William, Kimberly and Michael. An action in trespass was instituted against C.J. Lazar & Sons Construction, which had installed a water heater in the Gavulic home a short time before the fire. Appellee was Lazar’s liability insurance carrier. Lazar, however, had not purchased “completed operations” coverage. Indeed, this risk was specifically excluded by the terms of the written policy. Contending that the fire had occurred after Lazar completed installation of the water heater, appellee refused to defend the several actions brought against Lazar by Mrs. O’Malley. In an ensuing trial, verdicts totalling $225,000.00 were returned against Lazar. Lazar subsequently assigned his rights under the policy to Mrs. O’Malley, who commenced the instant action against Continental. She sought recovery not only for the policy limits of $20,000.00 but also, based on alleged bad faith on the part of the insurer, the total amounts of the verdicts recovered as well as Lazar’s counsel fees. This second action resulted in a jury verdict for appellee.

Appellant contends that she is entitled to a new trial because of trial error occurring when the court refused to charge as requested in the following submitted point:

Even where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and that the effect thereof was explained to him.

In Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974), this Court held that an insurer has the burden of establishing the insured’s awareness and understanding of an exclusion regardless of the clarity or ambiguity of the policy language. This decision was subsequently followed in Klischer v. Nationwide Life Insurance Co., 281 Pa. Super. 292, 422 A.2d 175 (1980) and Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., 285 Pa.Super. 13, 426 A.2d 680 (1981). In those cases, the Court said:

The major premise upon which Hionis rests is the vast inequality of bargaining power between the insurer and the typical purchaser of insurance. As a direct result of that disparity, the insurer may dictate the terms and conditions of the policy. Whether the policy is clear and precise or whether it is oblique and ambiguous, the disparity between the parties remains the same. Moreover, the insured’s primary interest, which is obtaining the maximum coverage for his insurance dollar, is no less valid when the policy is unambiguous than it is when the policy is obscure. The policies served by Hionis are particularly pertinent when, as here, the insured buys insurance expecting to be covered for certain risks .... Insurers are not unduly burdened by a requirement that they explain the exclusions of their policies to insureds so that the insured can make an informed decision either to assume the excluded risks or to obtain additional insurance to protect against them.

Klischer v. Nationwide Life Insurance Co., supra 281 Pa.Super. at 299, 422 A.2d at 178; Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., supra 285 Pa.Super. at 19, 426 A.2d at 683.

In the instant case, the insurer unequivocally met the burden which these decisions impose. Not only did Lazar intentionally purchase the least expensive coverage available, but he obtained the assistance of his attorney in doing so. His attorney reviewed the complete policy and the coverage afforded thereby and recommended that Lazar buy it. Moreover, Lazar testified regarding that which his insurance agent had told him as follows:

He said while we are on the job it covers everything, but while we were off the job it didn’t.

And Lazar’s son, a partner in the business, gave the following testimony:

[M]y idea of our policy at the time was that we would be covered for full liability, that if anything would happen to anyone on the job while we were working there, you know, that we would have insurance.

When he was asked further, “you knew that if an accident occurred after you were off the job that your insurance would not apply,” he responded: “That’s right.”

In view of this evidence, there was no longer a disputed issue regarding the insured’s knowledge and understanding of the “completed operations” exclusion in the policy. The insured admittedly had been aware of the exclusion and its meaning. Thus, the insurer had met its burden, and there was no need to instruct the jury concerning the rule in Hionis. The jury could now focus more clearly on whether the insured’s operations had, in fact, been completed; and the trial court could adequately charge, as it did:

Now the burden of proving the . . . applicability of an exclusion under the facts is the burden of the defendant. In other words, the defendant raises as an affirmative defense . . . that we are not liable because the policy exclusions and the facts do not warrant recovery, and their burden of proving this to you is by the fair weight or the preponderance of the evidence.

Record, p. 702.

Even if erroneous, however, the omission of the instruction requested by appellant would not have warranted another trial. “Error in the abstract is not an adequate reason to award a new trial .... Before a court will order a new trial, it must conclude that the errors at trial led to an incorrect result.” Warren v. Mosites Construction Co., 253 Pa.Super. 395, 403, 385 A.2d 397, 401 (1978). In view of the testimony of the insureds in the instant case, it can be determined beyond peradventure of a doubt that the verdict was not influenced by a failure of the trial court to charge on the insurer’s burden of proving the insured’s understanding of the policy exclusion.

Appellant next argues that the trial court erred when it refused to withdraw a juror following these remarks made by appellee’s counsel during closing argument:

There are areas within the field of insurance law, within the field of claims adjustment, and within the field of most of the things that you do in your lifetime where you come to an honest decision, I’m right, and you take your position, you take your stand, and you defend your position. And the fact that eight or nine years later because of changes in the law or because of changes in personalities or because of the death of a witness you come into court and someone says, Well, it was even steven and evidence is a little bit more in favor of coverage than it is against so we are going to find yes, there was coverage, they made a mistake. That can happen. That may be happening here, I don’t know, but I hope not.
But George Loutzenhiser was not guilty of bad faith when he wrote his letters of disclaimer. Our position is that there was room for an honest decision by him at that time based on the evidence he then had that there was no coverage and, in fact, we think it’s still a good decision today. But if we’re wrong, we contend that it is not because of anyone’s bad faith. It is very easy in the insurance industry, ladies and gentlemen, for every claims adjuster and every claims supervisor to pay and pay and pay because then there is never any litigation and nobody ever proved you were wrong. No one ever proves you’re wrong if you pay.
And here is a big claim. Here is a claim that can go to hundreds and thousands of dollars. Pay it and be done with it. Make somebody else pay that money in higher premiums later on. Pay it and get rid of it. That’s the easy way.
I suggest to you that the decision of George Loutzenhiser when he disclaimed and the decision of George and Mr. Racanelli when he affirmed the disclaimer and ratified it in January of 72 was a conscientious, deliberate, fair, and reasonable decision and, therefore, if your decision should be in favor of coverage for whatever reason I don’t know at this time, I would ask you to find that the decision was made in good faith and not because of any corrupt motive on the part of these men in an effort to hurt the Lazars or someone else.

(T. 659-661)

“[T]he matter of withdrawing a juror because of the line of argument pursued by counsel in addressing a jury ... is subject largely to the discretion of the trial court [citations omitted]. Whether a court abuses its discretion in refusing to withdraw a juror because of improper remarks of counsel must be determined by the circumstances under which the statement was made and by the precautions taken by the court and counsel to prevent its having a prejudicial effect.” Martin v. Philadelphia Suburban Transportation Co., 435 Pa. 391, 394, 257 A.2d 535, 537 (1969) quoting McCune v. Leamer, 383 Pa. 434, 437-38, 119 A.2d 89, 90 (1956). See also: Smith v. Evans, 421 Pa. 247, 250-51, 219 A.2d 310, 312 (1966); Easter v. Hancock, 237 Pa.Super. 31, 36-37, 346 A.2d 323, 327 (1975). Trial counsel must be expected to advance a spirited argument to support his client’s cause, but he may not take unwarranted liberties with the evidence or arouse prejudices by exaggerated accusations. Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 184-85, 191 A.2d 662, 671 (1963); Easter v. Hancock, supra.

The remarks of counsel in the instant case were prompted by appellant’s claim for damages based on an averment that appellee had been guilty of bad faith in denying coverage. Counsel argued that the decision to deny coverage had been the result of conscientious deliberation and had been made despite a recognition of the potential financial consequences. It was not argued that the jurors would themselves be affected financially in any way by the verdict. The argument was premised upon insurance practices, an issue in the case, and was not calculated to arouse the juror’s prejudices or influence their decision unfairly. In view of appellant’s charge of bad faith and the claim for damages based thereon, we cannot say that counsel’s argument had no place in the closing address. We conclude, therefore, that the trial court did not abuse its discretion in denying appellant’s motion to withdraw a juror.

Judgment affirmed.

      . Thelma O’Malley asserted claims in various representative capacities. In the caption, her representative capacities are identified as follows: THELMA O’MALLEY, Administratrix of the Estate of William F. Gavulic, deceased; THELMA O’MALLEY, Administratrix of the Estate of Shirley Ann Gavulic, deceased; THELMA O’MALLEY, Administratrix of the Estate of Kevin Gavulic, deceased; THELMA O’MALLEY, Administratrix of the Estate of Brian Gavulic, deceased, and William Gavulic, a minor, by THELMA O’MALLEY, his maternal grandmother and natural guardian, and Michael Gavulic, a minor by THELMA O’MALLEY, his maternal grandmother and natural guardian.

      . The policy of insurance was labelled: “Manufacturers’ and Contractors’ Liability Insurance Coverage for premises and FOR THE NAMED INSURED’S OPERATIONS IN PROGRESS.” Specifically, the policy provided:
      The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (a) bodily injury or (b) property damage to which this insurance applies caused by an occurrence ... (R. 493, emphasis supplied).
      Exclusions
      This insurance does not apply ... (m) to bodily injury or property damage included within the completed operations hazard or the products hazard; ...
      Definitions

        “Completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and insured. “Operations” include materials, parts, or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
      (1) When all operations to be performed by or on behalf of the named insured under the contract have been completed.
      (2) When all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
      (3) When the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as part of the same project.
      Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete shall be deemed completed.


author: CIRILLO, Judge.

text:
    451 A.2d 546
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold William JOHNSON.
    Superior Court of Pennsylvania.
    Argued May 3, 1982.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Feb. 2, 1983.

      Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellant.
    John D. Merrick, Public Defender, Marsha A. McClellan, Assistant Public Defender, West Chester, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge.

This is an appeal from an order of the lower court granting appellee’s petition to dismiss, with prejudice, criminal charges against him, discharging him from custody, and denying the Commonwealth’s petition for an extension of time in which to commence trial, both filed pursuant to Pa.R.Crim.P. 1100. For reasons stated herein, we reverse the orders of the lower court, reinstate the informations, and remand the case for trial within 120 days.

On December 23, 1979, a fire occurred behind a bakery in West Chester, Pennsylvania. Appellee, who was suspected of having set this fire, was arrested in New Jersey on January 7, 1980 and charged with arson in connection with another fire that was set on December 31, 1979 in Atlantic City, New Jersey. After the Chester County authorities were notified of appellee’s arrest, they contacted the First Assistant Prosecutor of Atlantic County who informed them that extradition would not be permitted until the conclusion of the proceedings against appellee in New Jersey. On February 7, 1980, after completion of their investigation, Chester County authorities filed a complaint charging appellee with arson and related crimes in connection with the West Chester fire.

Appellee pleaded guilty to the New Jersey charges on March 3, 1980 and a presentence investigation and report was ordered. He was sentenced on April 25, 1980, thus concluding the New Jersey prosecution.

Appellee was returned to Chester County on May 5, 1980, and, on June 6, 1980, entered a plea of not guilty to the charges filed in connection with the West Chester fire. Trial was scheduled for August 18, 1980. On July 31, 1980, the Commonwealth filed a timely application to extend time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). Appellee filed a petition to dismiss pursuant to Pa.R.Crim.P. 1100(f) on August 13, 1980. On September 10, 1980, after a hearing, the Commonwealth’s petition was denied and appellee’s was granted.

The Commonwealth contends that the lower court erred in finding that it failed to prove, by a preponderance of the evidence, that it acted with due diligence to secure appellee’s presence for trial. Commonwealth v. Polsky, 493 Pa. 402, 406, 426 A.2d 610, 612 (1981); Commonwealth v. Kovacs, 250 Pa.Super. 66, 71, 378 A.2d 455, 457 (1977). We agree.

A trial must commence within 180 days of the date upon which a written complaint, charging a defendant with a crime, has been filed. Pa.R.Crim.P. 1100(a)(2). Any period of delay resulting from the unavailability of the defendant is excluded. Pa.R.Crim.P. 1100(d)(1). The period is also subject to an extension upon a showing by the Commonwealth that trial could not be commenced within the prescribed time. Pa.R.Crim.P. 1100(c); Commonwealth v. Roman, 494 Pa. 440, 444, 431 A.2d 936, 938 (1981); Commonwealth v. Williams, 284 Pa.Super. 125, 131, 425 A.2d 451, 454 (1981). A defendant’s incarceration in another jurisdiction may provide a valid reason for granting an extension provided that the Commonwealth sustains its burden of proving that it exercised due diligence in attempting to secure the defendant’s presence at trial. Commonwealth v. Emmett, 274 Pa.Super. 23, 28, 417 A.2d 1232, 1235 (1979); Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192, 194-95 (1978); Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239, 1240 (1976). It is important to note that the Commonwealth is not required to show that it acted with perfect vigilance and punctilious care. It is only necessary that it prove that reasonable efforts were made to procure a defendant’s attendance at trial. Polsky, 426 A.2d at 613, Emmett, 417 A.2d at 1235.

The evidence presented in the instant case clearly shows that the Commonwealth sustained its burden of proving that it acted with due diligence. Its immediate inquiry into the feasibility of extradition proceedings, its justified reliance on the Assistant Prosecutor’s statement that it would be notified as soon as the prosecution was concluded, and appellee’s prompt return to Chester County following the disposition of the New Jersey charges is sufficient to prove, by a preponderance of the evidence, that the Commonwealth acted with due diligence to secure appellee’s presence at trial. Roman, 431 A.2d at 938; Williams, 425 A.2d at 455; Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046, 1049 (1978).

The lower court’s finding, that the Commonwealth’s failure to institute proceedings under the Uniform Criminal Extradition Act was evidence of a lack of due diligence on its part, was incorrect. This action would clearly have been futile in light of the New Jersey authorities’ steadfast refusal to release appellee prior to the conclusion of the criminal proceedings against him in New Jersey. Williams, 284 Pa.Superior Ct. 132, 425 A.2d at 455. In addition, the Commonwealth should not have been penalized for failing to secure appellee’s presence through the Interstate Agreement on Detainers Act. This act could not be employed to gain custody of appellee because it only provides for the extradition of defendants who are serving sentences in other jurisdictions, and not those who are merely incarcerated while awaiting the disposition of criminal charges against them. Commonwealth v. Heath, 288 Pa.Super. 119, 128, 431 A.2d 317, 321 (1981), compare, Commonwealth v. Long, 258 Pa.Super. 251, 392 A.2d 779, 783 (1980).

Therefore, the lower court erred in granting appellee’s petition to dismiss and in denying the Commonwealth’s petition to extend. Compare, Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012, 1014-15 (1978).

The order of the lower court is reversed, the informations are reinstated and the case is remanded for trial.

SPAETH, J., concurs in the result.

      . Appellee’s petition to dismiss was filed pursuant to Pa.R.Crim.P. 1100(f) which provides:
      (f) At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.
      Appellant’s petition for an extension of time in which to commence trial was filed pursuant to Pa.R.Crim.P. 1100(c) which provides:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . Specifically, appellee was charged with Arson, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. §§ 3301(a), (b)(1) and (2); Causing or risking catastrophe, Id. §§ 3302(a) and (b); and Criminal Mischief, Id. §§ 3304(a)(1) and (2).

      . On April 18, 1980, the First Assistant Prosecutor of Atlantic County sent a letter to Chester County authorities confirming his earlier statement that extradition would not be allowed until the conclusion of the proceedings in New Jersey.

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

        (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.
      (2) any period of time for which the defendant expressly waives Rule 1100;
      (i) the unavailability of his attorney;
      (ii) any continuance granted at the request of the defendant or his attorney.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 9121 et seq. Under this act, a state is not obligated to allow extradition of a defendant when it has been requested to do so. Id. §§ 9126(a) and (b), 9140. See also, N.J.S.A. § 2A: 160-27, which makes the same provision.

      . See, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 9101, Art. III(a).


author: CIRILLO, Judge:

text:
    451 A.2d 549
    COMMONWEALTH of Pennsylvania v. David YOST, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1982.
    Filed Oct. 8, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      John R. Merrick, Public Defender, Dennis Daniel Brogan, Assistant Public Defender, West Chester, for appellant.
    Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Chester County, denying the appellant’s Motion to Quash an Information based upon the claim that reprosecution was barred on the basis of double jeopardy.

On March 20, 1980 the appellant, David Yost, drove a car to the Frazer Bowling Lanes in East Whiteland Township, Chester County. The only passenger in the car, Marl Latsha, had arranged to meet a state trooper, working in an undercover capacity, at that location for the purpose of selling methamphetamine, a controlled substance. Police arrested Marl Latsha at the bowling lanes and seized a quantity of methamphetamine from his person. The appellant, who had remained inside of the car during this time, was also arrested. A sawed-off shotgun was found between the appellant’s legs at the time of his arrest, and some shotgun shells and marijuana were also found in the car.

The appellant was charged with various offenses, and subsequently filed a Motion to Suppress the shotgun and methamphetamine, which was denied. The Honorable Dominic T. Marrone thereafter met with counsel in chambers and specifically instructed the assistant district attorney not to let his witnesses mention the marijuana that was found in the car, while testifying in the presence of the jury. However, at trial, one of the Commonwealth’s witnesses remarked that marijuana had been found in the car and a mistrial was granted at the appellant’s request. A Motion to Dismiss the Information was thereafter filed, alleging that any retrial should be barred as violative of the appellant’s constitutional right not to be placed twice in jeopardy. After a hearing, the Honorable Robert S. Gawthrop, III denied the motion by an Order dated January 20, 1981, and this appeal followed.

The constitutional guarantee against double jeopardy protects a defendant in a criminal proceeding against multiple punishments or successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In general, when a mistrial is granted on a defendant’s motion, or with his consent, the principles of double jeopardy do not bar a subsequent reprosecution. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The only exception to the rule permitting retrial is where the defendant’s mistrial request is necessitated by prosecutorial error committed intentionally to force the accused to move for a mistrial, thereby affording the prosecution another, possibly more favorable opportunity to convict. When such governmental overreaching or bad faith is found to exist, the double jeopardy clause will bar a retrial. United States v. Dinitz, supra; Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980).

In the case of Commonwealth v. Clark, 287 Pa.Super. 380, 392, 430 A.2d 655, 661 (1981), this Court (per Judge Price) set out the following guidelines to assist in the difficult determination of whether given conduct is intentional or bad faith overreaching, rather than mere prosecutorial error:

Thus, we hold the following circumstances to be relevant in determining the existence of bad faith intent on the part of the prosecution: (1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of the defendant’s guilt, so that the prosecutor’s misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor’s motives, arid (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant’s prospects for acquittal.

In the instant case, the lower court found that the prosecutor told all of his witnesses who were present when trial commenced, that they were not to mention the marijuana. Trooper Bostick, who had not been present at the start of the trial, was called as the second Commonwealth witness. The trooper testified that when he first went to the appellant’s car, there was a sawed-off shotgun between the appellant’s legs. The prosecutor then asked, “Did you see anything else in the vehicle, in the front section of the vehicle?” The trooper replied, “Not immediately, but after we handcuffed him and restrained him on the car, there were probable marijuana bags, and stuff like that.” Following this exchange, a mistrial was immediately sought and granted.

At the hearing on the appellant’s Motion to Quash the Information, the assistant district attorney who tried the case testified that he interviewed Trooper Bostick prior to the trial and had been told about shotgun shells which were in the car. Thus, in answer to the prosecutor’s question at trial, it was expected that the trooper would say that he found shotgun shells in the car, not that he would mention anything about the marijuana. The prosecutor further testified that he had no intention of causing a mistrial, that there was no advantage to be gained by the Commonwealth in having a mistrial declared, and that, in his opinion, the trial was going well and that he was fully prepared to complete the trial at that time.

In Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980), the Pennsylvania Supreme Court decided that the guarantee against double jeopardy did not bar retrial of the defendant where a mistrial was granted after a prosecution witness impermissibly referred to the defendant’s prior criminal record on direct examination. Further, in Com monwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978), the Court held that retrial was not barred where the prosecutor, in an earlier trial, improperly questioned two witnesses after he had been instructed by the trial court not to pursue a certain line of questioning.

In the present matter, we find that the prosecutor’s actions were not done in bad faith, were not designed to harass and prejudice the appellant’s chances for acquittal, and were not for the purpose of intentionally causing a mistrial. Even if the prosecutor did err in his conduct, the facts of this case do not require the extreme sanction of complete discharge of the information. Accordingly, we affirm the Order of the Court below.

Order affirmed.

      . Methamphetamine is a Schedule II drug under the “Controlled Substance, Drug, Device and Cosmetic Act”. Act of April 14, 1972, P.L. 233, No. 64 § 1, as amended by the Act of November 26, 1978, P.L. 1392, No. 328, § 1; 35 P.S. § 780-104(2)(iii)(4).

      . The appellant was charged with the crimes of conspiracy, possession of an offensive weapon, firearms violation, possession and possession with intent to deliver a controlled substance.

      . An order denying a pretrial motion to dismiss on grounds of double jeopardy is a final, appealable order. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

      . In Commonwealth v. Perry, 270 Pa.Super. 412, 417, 411 A.2d 786, 789 (1979), Judge Price stated:
      “. .. (the Supreme Court) has determined that error on the part of the prosecution resulting in a mistrial acts as a bar to a subsequent retrial only if the error was intentionally committed for the purpose of harassment or prejudice. Mere negligence, even gross negligence, will not bar a second prosecution.” (citations omitted)

      . Prosecutorial misconduct intentionally calculated to trigger the declaration of a mistrial and prosecutorial misconduct undertaken in bad faith to harass the accused, are the two principle types of prosecutorial overreaching as delineated by the Supreme Court. See: Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (fn. 7) (1981).


author:
      JOHNSON, Judge:
      LIPEZ, Judge,

text:
    451 A.2d 552
    COMMONWEALTH of Pennsylvania v. Leroy C. SIEBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1982.
    Filed Oct. 8, 1982.

      John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

On July 31,1980, Appellant was charged with one count of Burglary. Appellant’s guilty plea was received on September 17, 1980; and he was sentenced on April 21, 1981. The court denied Appellant’s motion to withdraw guilty plea and for modification of sentence. This is an appeal from the judgment of sentence. For the following reasons, we affirm.

Appellant presents two issues for our consideration. First, did the lower court err in denying Appellant’s motion to withdraw guilty plea since the court failed to advise Appellant that he was presumed innocent until proven guilty? Second, did the lower court err in denying Appellant’s motion for modification of sentence?

In considering Appellant’s first issue, we must consider not only what the court failed to tell Appellant but also the information that the court conveyed to Appellant regarding the presumption of innocence. The relevant portion of the very thorough and complete colloquy in the instant case consisted of the following dialogue between the judge and Appellant:

If you should elect to plead not guilty, then the court advises you that before you can be convicted, the prosecution will have the burdon [sic] of proving beyond a reasonable doubt your guilt, and before a jury could find you guilty of the charge of burglary, all twelve of them would have to agree that you are guilty beyond a reasonable doubt.
However, if your plea of guilty is accepted, you waived, that is you give up each of the rights that I have just mentioned to you.
Do you have any questions about any of the matters which I have just explained to you?
A. No, Your Honor.
Q. Do you realize that by a plea of guilty, you would be giving up each of those rights?
A. Yes, Your Honor. [Emphasis added.]

Appellant contends that, because the trial judge failed to utter either the phrase, “presumed innocent,” or “presumption of innocence,” the guilty plea colloquy was defective. After a review of previous cases concerning Rule 319, we hold that the colloquy in the instant case was not defective.

In Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), the supreme court stated, “The essential element [of a guilty plea colloquy] is therefore a recorded demonstration that the defendant is fully aware of the ramifications of his action and is entering his plea voluntarily.” Id., 455 Pa. at 200, 316 A.2d at 78. Ingram referred to the comments to Rule 319(a) as “guidelines [which] will serve to protect the rights of defendants while simultaneously facilitating appellate review.” Id., 455 Pa. at 204-205, 316 A.2d at 81.

In Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), the supreme court reviewed a guilty plea colloquy in a case involving charges of murder and conspiracy to murder, in which the trial judge had not even mentioned “malice” much less any of the other guidelines listed in the comment to Rule 319. The supreme court quoted the above-cited passage from Ingram which viewed the comments to Rule 319 as guidelines; and the court proceeded to state, “Failure to satisfy these minimal requirements will result in reversal.”

In Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), the defendant argued that the lower court had erred because the defendant had not been informed of the presumption of innocence. Citing Dilbeck for the principle that the six (6) questions in the comments to Rule 319 are mandatory, the supreme court reversed and remanded for a new trial. Willis was the authority cited by our court in Commonwealth v. Dello Buono, 271 Pa.Super.Ct. 572, 414 A.2d 631 (1979), to reverse and remand a guilty plea colloquy because the defendant had not been informed of the presumption of innocence.

In Commonwealth v. Wyatt, 292 Pa.Super.Ct. 71, 436 A.2d 1009 (1981), a panel of our court was constrained to follow Dello Buono and reverse a guilty plea because the court failed to inform the defendant that he was presumed innocent until proven guilty. MONTEMURO, J., who wrote the opinion for the panel, said it was clear from the record that the defendant’s guilty plea was knowing and intelligent. Id., 292 Pa.Superior Ct. at 73, 436 A.2d at 1010. Although the defendant in Wyatt was not informed of the presumption of innocence, he was advised that the Commonwealth must prove every element of the crime beyond a reasonable doubt. The opinion in Wyatt did not discuss the relation of proof beyond a reasonable doubt to the concept of presumption of innocence. We presume, however, that proof beyond reasonable doubt is not the obverse of presumption of innocence. Unlike Wyatt, in Ingram, Dilbeck, Willis, and Dello Buono, the respective colloquies referred neither to proof beyond a reasonable doubt nor to presumption of innocence. In the instant case, the trial judge informed Appellant not only that the prosecution would have the burden of proving his guilt beyond a reasonable doubt, but also “before a jury could find you guilty ... all twelve of them would have to agree that you are guilty beyond a reasonable doubt.” When the trial judge informed Appellant that the members of the jury must agree before they could find him guilty, the judge was, in essence, informing Appellant that he was innocent until proven guilty. The phrase, “before a jury could find you guilty,” conveys the same idea as the phrase, “presumed innocent.”

Two recent decisions by our court, considering the validity of a waiver of jury trial, have viewed the colloquies in question in light of the intent conveyed rather than requiring that the lower court employ specific words and phrases. Our court en banc decision in Commonwealth v. Fortune, 289 Pa.Super.Ct. 278, 433 A.2d 65 (1981), held that a waiver of jury trial was not defective because the trial judge failed to inform the defendant either that the jury would be composed of his peers or that the jury was composed of members of the community. See Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In Fortune, the trial judge advised Appellant that “12 people . . . would sit as that jury... .” Our court, per HESTER, J., with SPAETH, J., dissenting, held that the “essential ingredients of a jury trial” had been explained to the defendant. The judge’s failure to employ specific words did not constitute error. 289 Pa.Super.Ct. at 290, 433 A.2d at 71.

Commonwealth v. Sanders, 299 Pa.Super.Ct. 410, 445 A.2d 820 (1982), also involved a colloquy pursuant to the waiver of a jury trial. The trial judge in Sanders informed the defendant that “twelve members of the Dauphin County community would come together to decide your guilt or innocence....” Id., 299 Pa.Superior Ct. at 415, 445 A.2d 820. Our court held that the colloquy in question was not defective but that the “essential ingredients” of a jury trial had been explained to the defendant. Id., 299 Pa. Superior Ct. at 413, 445 A.2d 820.

In the instant case, the “essential ingredients” of the presumption of innocence were explained to Appellant. By informing him that the verdict must be unanimous “before a jury could find you guilty,” Appellant was advised that the jury would not even have the power to find him guilty until the condition of unanimity had been fulfilled. Since a person is innocent until he has been found guilty, the foregoing phrase in the instant case conveyed the “essential ingredients” of the concept, presumption of innocence. The court’s instruction in the instant case goes beyond that of the trial court in Wyatt, which advised the defendant only of the need for proof beyond a reasonable doubt. Since the respective trial courts in Ingram, Dilbcck, Willis, and Dello Buono were completely silent regarding the presumption of innocence, the instant decision does not conflict with the aforesaid cases. Likewise, since the colloquy in Wyatt referred merely to the Commonwealth’s burden of proof beyond a reasonable doubt, our decision in the instant case does not conflict with the holding in Wyatt.

As his second issue, Appellant argues that the lower court erred in denying Appellant’s motion for modification of sentence. As rationale for the modification of sentence, Appellant claimed: (1) that he could not receive adequate treatment for his diagnosed drug problem if he were incarcerated in a state prison; and (2) a state prison could not adequately deal with his emotional and psychiatric problems.

Appellant had previously been enrolled in a drug and alcohol treatment center; however, because he violated the rules of that institution, the trial judge imposed a penitentiary sentence. Appellant’s motion for modification of sentence requests the lower court to consider that Appellant violated the rules of the treatment center in order to have increased contact with his sick mother and his pregnant girlfriend. In denying Appellant’s motion for modification of sentence, the lower court considered all of the foregoing factors. We find no abuse of discretion in the lower court’s denial of Appellant’s motion.

For the foregoing reasons, the judgment of sentence is affirmed.

LIPEZ, J., files a concurring opinion.

LIPEZ, Judge,

concurring.

“The ‘presumption of innocence’ is not a presumption at all but simply another way of stating the rule that the prosecutor has the burden of proving the guilt of the accused beyond a reasonable doubt.” McCormick, 2nd Ed., p. 829.

I agree, therefore, that the colloquy here was adequate; and I further agree that the court below was not in error in denying appellant’s motion for modification of sentence.

      . 18 Pa.C.S.A. § 3502.

      . The comments to Pa.R.Crim.P., Rule 319(a), 42 Pa.C.S.A., state in part:
      [A]t a minimum the judge should ask questions to elicit the following information:
      (1) Does the defendant understand the nature of the charges to which he is pleading guilty?
      (2) Is there a factual basis for the plea?
      (3) Does the defendant understand that he has the right to trial by jury?
      (4) Does the defendant understand that he is presumed innocent until he is found guilty?
      (5) Is the defendant aware of the permissible range of sentence and/or fines for the offenses charged?
      (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

      . In Dello Buono, the failure to inform defendant of the presumption of innocence constituted an “additional reason” for reversal. 271 Pa.Super.Ct. at 579, 414 A.2d at 634. The opinion discusses the lower court’s failure to inform the defendant that the verdict of the jury must be unanimous. The “additional reason” of failure to mention presumption of innocence is not discussed by our court’s opinion in Dello Buono.


author: MONTEMURO, Judge:

text:
    451 A.2d 555
    Eileen M. SCHMITZ, v. George F. SCHMITZ, Appellant v. Provident Life & Accident Insurance Company.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed Oct. 8, 1982.

      Stephen Israel, Pittsburgh, for appellant.
    Franklyn E. Conflenti, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing appellant’s preliminary objections to the appellee’s attempted garnishment of the cash surrender value of life insurance policies owned by appellant.

The facts involved in the instant case are not in dispute. Appellant, Dr. George F. Schmitz, and appellee, Eileen M. Schmitz, were married on July 30,1960. Sixteen years later, marital difficulties precipitated appellee to file a complaint for support in the Family Division of the Court of Common Pleas for herself and the couple’s three daughters. On March 10, 1976 a consent order was entered by the court which was subsequently modified on July 27, 1976, reducing appellant’s support payments. This order was later super-ceded by a separation agreement entered into between the parties which settled the disposition of mutual property rights, custody of the children and support of both appellee and the children. The marriage ended with the entry of a decree in divorce on November 10, 1976.

Sometime after the final decree of divorce was entered all three children took up residence with their father in San Antonio, Texas. In light of this development, appellant believed that his support obligations to appellee terminated under the separation agreement and he ceased payments. Pursuant to the Separation Agreement, the matter was then submitted to arbitration on July 28, 1978. The arbitrator found that appellant was still obliged to provide support for appellee but reduced the monthly payments. Appellant refused to abide by that decision. On November 16, 1978 appellee filed suit in the Family Division of the Court of Common Pleas to enforce the separation agreement as modified by the arbitrator’s award. On February 20, 1979 a default judgment was entered against appellant based upon his failure to answer or otherwise plead to the complaint. A final decree was entered on the default judgment requiring appellant to provide appellee with monthly payments as set forth by the arbitrator’s award and to pay over a certain sum due as a consequence of appellant’s noncompliance. To recover on the judgment, appellee initiated execution proceedings and garnished the cash surrender value of two life insurance policies owned by appellant. The appellant responded with preliminary objections to the garnishment which the court below dismissed on December 19, 1979. On January 4, 1980 appellee entered judgment against the garnishee, Provident Life and Accident Insurance Company. Thereafter, by agreement of the parties, the order of the court of December 19, 1979 was stayed and a supercedeas was issued pending this appeal.

The sole contention raised by appellant is that the lower court erred in finding that the cash surrender value of the life insurance policies was property which could be properly subjected to garnishment. We agree and accordingly reverse.

The general rule in a majority of jurisdictions is that the cash surrender value of a debtor’s life insurance policy is merely an optional right which cannot be attached or garnished by a judgment creditor. See 37 A.L.R.2d 268.

Even though a life insurance policy has a cash surrender value which is available to the insured at his option, it is quite uniformly held by the courts that where the insured has not exercised his option to surrender the policy for it cash surrender value, a creditor of the insured cannot obtain such cash surrender value by means of garnishment proceedings, the general view being that where the surrender option has not been exercised there is no such present fixed liability or existing indebtedness on the part of the insurer to the insured as is requisite to the maintenance of garnishment. Id. at 286.

In Pennsylvania, insurance proceeds are specifically exempted from attachment or execution on a judgment under 42 Pa.C.S.A. § 8124(c):

(4) Any amount of proceeds retained by the insurer at maturity or otherwise under the terms of an annuity or policy of life insurance of the policy or a supplemental agreement provides that such proceeds and the income therefrom shall not be assignable.

Appellee argues that since this is a support matter she is not to be considered a judgment creditor and therefore, an exception to the general rule of non-execution on the proceeds of a life insurance policy is applicable. Appellee cites Commonwealth v. Berfield, 160 Pa.Super. 438, 441, 51 A.2d 523, 525 (1947) for the proposition that:

The obligation of a husband to support his wife does not arise in contract and is not a debt; the husband’s liability is imposed by law as an incident of the marital status. And because of the obligation arising from that status and the legal unity of husband and wife, our appellate courts have held that a wife may look to a fund payable to her husband, however, safeguarded by law or by language of its creation, from attachment by others. (Citations omitted).

In the instant case we do not believe the Berfield language is controlling. It must be emphasized that the parties were divorced. There is no longer a legal unity of husband and wife. The obligation here is imposed more so in contract than as an incident arising from the marital status. An absolute decree of divorce terminates the duty of a spouse to support his or her former spouse. Watson v. Watson, 243 Pa.Super. 23, 364 A.2d 431 (1976). Although a separation agreement providing support for a spouse will continue subsequent to a divorce, the obligation is based on a contract. See Cavazza Estate, 169 Pa.Super. 246, 82 A.2d 331 (1951). The legal relationship of marriage has been severed.

Therefore, we find that the Schmitz’ divorce precludes us from applying policy relevant to the marital status. Appellee must be considered a judgment creditor and thus, under Pennsylvania law, her garnishment of the cash surrender value of the two life insurance policies cannot be allowed.

Order reversed.