text:
    454 A.2d 1101
    Michelle A. SHOMPER, Administratrix of the Estate of Marlin S. Shomper, Deceased, v. AETNA LIFE & CASUALTY COMPANY, Appellant and Cross-Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      Nancy Joan Gellman, Philadelphia, for Aetna Life.
    Neil J. Rovner, Harrisburg, for Shomper.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

The order appealed from in this case awarded work loss benefits to the plaintiff, Michelle Shomper, appellee and cross-appellant before this court, but denied her claim for attorney’s fees. Mrs. Shomper’s husband, an uninsured, died after being hit by an automobile whose driver was likewise uninsured. Under the Assigned Claims plan of the Pennsylvania No-fault Motor Vehicle Insurance Act the appellant and cross-appellee, Aetna, was designated as the servicing insurer. The fatal accident took place on December 31, 1977. On August 18, 1978, Mrs. Shomper, as administratrix of the estate of her husband, filed a complaint for survivor’s loss and work loss benefits. Aetna subsequently paid the survivor’s loss benefits but demurred to the complaint with respect to the claim for work loss benefits on the grounds that the estate of a deceased victim was not entitled to work loss benefits under the No-fault Act.

On April 12, 1979, this court decided that the widow of a deceased accident victim was entitled to recover the work loss benefits which her husband would have received if he had been permanently disabled. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). The supreme court’s decision affirming Heffner was filed on September 22, 1980. Following these decisions, Aetna continued to deny the claim for work loss benefits on the ground that it was without proof of the dependency of Mrs. Shomper and the two children of the marriage on the deceased. Then in its answer and new matter, filed in February of 1981, Aetna asserted, inter alia, as its defense, the non-retroactivity of the Heffner decisions.

The trial court, however, disagreed with Aetna on the non-retroactivity question, and found Heffner to be retroactive basing its determination on this court’s statement in Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980), that Heffner decided an issue of statutory construction which is therefore part of the statute from the time of its enactment. We affirm. See Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

The trial court awarded interest on the overdue benefits at the No-fault Act’s rate of 18% per annum, see 40 P.S. 1009.106(a)(2), as of September 14, 1978, the claim for work loss benefits having been made on August 15, 1978. Aetna does not appeal this part of the order.

Lastly, however, the trial court declined to award attorney’s fees to Mrs. Shomper on the grounds that there was no bad faith on Aetna’s part. This decision is appealed by Mrs. Shomper. We reverse.

In Hayes v. Erie Insurance Exchange, 493 Pa. 150, 160, 425 A.2d 419, 424 (1981) the denial, by the trial court and the superior court, of attorney’s fees, which was affirmed by the supreme court, was based on the fact that there was no evidence of bad faith on the insurance company’s part. In Hayes the courts had found that the insurer’s arguments against liability were reasonable. In this case, however, the insurer had a clear directive from first this court and then the supreme court as to its liability. It has persistently refused to pay this survivor the work loss benefits which the appellate courts of this Commonwealth have determined to be provided for in the No-fault Act. This denial of work loss benefits is totally without reasonable foundation. See Baker v. Aetna, supra. See also Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa.Super. 120, 449 A.2d 607 (1982). The order of the trial court awarding work loss benefits and interest is affirmed. The order of the trial court denying Mrs. Shomper’s request for attorney’s fees is reversed and the case is remanded for a determination of reasonable attorney’s fees due Mrs. Shomper because of the continued denial by Aetna of her claim for work loss benefits.

Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982). The Assigned Claims plan is to be found at section 1009.108.

      . This appeal was consolidated for oral argument with, inter alia, Baker v. Aetna Casualty & Surety Co., supra.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    454 A.2d 1102
    Lorraine A. KEATEN, Individually and as Administratrix of the Estate of Julia Iovino Eichler, a/k/a Julia Iovino, Deceased, v. AETNA LIFE & CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    John M. Hickey, Broomall, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This is an appeal by the insurance company (Aetna) from an order in the trial court granting Aetna’s motion to amend its answer and new matter, denying Aetna’s motion for summary judgment, granting appellee Lorraine Keaten’s motion for judgment on the pleadings, and entering judgment for Ms. Keaten for work loss benefits, interest at the rate of 18%, and attorney’s fees, pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act.

Appellee, Ms. Keaten, is the daughter of an automobile accident victim, Julia Eichler, insured by Aetna, who died on October 20, 1977, as a result of the injuries she received in an accident which took place on October 13, 1977. Pursuant to Ms. Eichler’s policy with Aetna, Aetna paid funeral expenses, survivor’s loss benefits, and work loss benefits in the amount of $66.24 for the period from the date of the accident to the date of Ms. Eichler’s death.

On April 12, 1979, this court decided, in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980), that the survivors of deceased accident victims could recover the work loss benefits to which they would be entitled if they were permanently disabled. On October 16, 1979, Ms. Keaten filed a complaint in assumpsit seeking the balance of the work loss benefits she claimed under the No-fault Act as interpreted in Heffner. Aetna’s answer and new matter, filed February 14, 1980, denied liability for work loss benefits. On November 21, 1980, Ms. Keaten filed a motion for judgment on the pleadings citing the supreme court’s decision affirming our decision in Heffner. Aetna accordingly filed a motion to amend its answer and new matter so as to assert as its affirmative defense that the rule of Heffner was not retroactive and therefore did not apply to a case such as this, where the victim died before this court’s decision in Heffner. Aetna also filed a motion for summary judgment.

The trial court’s order in response to these motions was based in part on the superior court’s statement, in Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980), that the Heffner decision did not change the law but merely interpreted the statute, and thus did not create a new right. The trial court based its award of interest at 18% on the No-fault Act and on a decision of the supreme court interpreting the applicable section. The trial court awarded attorney’s fees for the period of time starting when the Daniels decision was filed: “This court further finds that after December 27, 1980, the date the Superior Court’s decision in Daniels was filed, [Aetna’s] refusal to pay these work loss benefits was with absolutely no legal foundation and was totally unreasonable____ Consequently, plaintiff’s counsel is entitled to counsel fees for work performed since December 29, 1980.”

We have this day determined, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), that the decision in Heffner is indeed to be applied retroactively to all cases not barred by the applicable statute of limitations. The order of the trial court finding Heffner applicable and awarding work loss benefits and interest at 18% is therefore affirmed.

In Baker we upheld the trial court’s determination awarding attorney’s fees to the claimant, but vacated the amount of the award and remanded the case for a determination of reasonable fees consistent with that opinion. We therefore affirm the order of the lower court awarding attorney’s fees “in an amount yet to be determined”, but vacate the lower court’s finding that the actions of the defendant were unreasonable only after December 29, 1980, and remand for a reconsideration of appellee’s request for attorney’s fees, consistent with the views expressed in Baker. The trial court is directed further to determine the amount of reasonable attorney’s fees due appellee as a result of Aetna’s continuing denial of the claim and its prolongation of this action through appeal. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . In Daniels this court stated:
      Ordinarily a decision announcing a change in the law will be applied to cases pending on direct appeal. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Commonwealth v. Williams, 232 Pa.Super. 339, 331 A.2d 875 (1974). However, Heffner did not change the law; it rather decided an issue of statutory construction not previously decided by an appellate court. Such an interpretation of legislative intent is regarded as part of a statute from the time the statute was enacted. Harry C. Erb, Inc. v. Shell Construction Co., Inc., 206 Pa.Super. 388, 213 A.2d 383 (1965); Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947). Thus, our decision in Heffner did not create a new right to work loss benefits. That right existed all along.
      283 Pa.Super. at 343, 423 A.2d at 1288.

      . See 40 P.S. § 1009.106(a)(2).

      . Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981).

      . Keaten v. Aetna Life & Casualty Ins. Co., No. 2382 October Term, 1979, slip op. at 4-5 (C.P. Philadelphia County, June 2, 1981).

      . This case and five others were consolidated for oral argument with Baker v. Aetna, supra.


text:
    454 A.2d 1105
    Hester Faye THOMAS, v. AETNA CASUALTY & SURETY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dee. 29, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    Peter T. Campana, Williamsport, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This is an appeal by the insurance company [Aetna] from the order of the trial court denying Aetna’s exceptions to its order entering judgment for Hester Faye Thomas for work loss benefits and interest at the rate of 18% under the Pennsylvania No-fault Motor Vehicle Insurance Act.

Mrs. Thomas’ husband was killed in an automobile accident on August 20, 1978. At the time of the accident the decedent was insured under a contract with Aetna. In response to Mrs. Thomas’ claim under this insurance contract, Aetna took the position that Mrs. Thomas was entitled, as a survivor, to survivor’s loss and funeral expenses only, and not to work loss benefits. It therefore refused to pay any work loss benefits.

In April, 1979, this court ruled that the survivor of a deceased motor vehicle accident victim could recover, under the No-fault Act, the work loss benefits which would be recoverable were the victim permanently disabled. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). Shortly thereafter, Mrs. Thomas filed suit in assumpsit requesting the work loss benefits to which she was entitled. Aetna filed preliminary objections, stating that the No-fault Act did not provide for work loss benefits for the survivors of deceased victims, and citing three common pleas decisions to the effect that the No-fault Act compensates surviving rather than deceased victims as far as work loss benefits are concerned. In a brief in support of its preliminary objections, Aetna explained that it thought the common pleas court decisions in its favor were the proper interpretation of the No-fault Act, rather than this court’s decision in Heffner. The trial court overruled the preliminary objections. By agreement of counsel, in March, 1980, further action on the case was suspended pending the decision of the supreme court in the Heffner case. Following that court’s decision affirming the superior court’s decision in Heffner, Aetna petitioned, in January 1981, to amend its answer to Mrs. Thomas’ complaint so as to raise the defense that the Heffner decisions were not to be applied retroactively, and therefore that Aetna was still not liable for work loss benefits in this case. Aetna also filed a motion for summary judgment based on the contention that Heffner did not apply to motor vehicle accident victims killed before the Heffner decisions, and that, therefore, Mrs. Thomas was entitled neither to work loss benefits nor to the attorney’s fees she requested under section 1009.-107(3) of the No-fault Act.

The trial court denied the motion with respect to the issue of the retroactivity of Heffner, and granted the motion with respect to the claim for attorney’s fees.

We have this day ruled that the Heffner decision is retroactive. See Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982). Accordingly, the order of the trial court, which found the decision in Heffner applicable to this case, and which denied Aetna’s exceptions to the court’s denial of summary judgment in Aetna’s favor, is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . The instant case was consolidated for oral argument with, inter alia, Baker v. Aetna, supra.

      . At oral argument, and in a letter submitted to the court on December 22, 1981, counsel for both sides stipulated that the issue of attorney’s fees was not raised in this appeal. We therefore do not reach this question.


text:
    454 A.2d 1106
    Maria FREEMAN v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    Richard C. Angino, Harrisburg, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This appeal is from an order awarding work loss benefits to appellee under the Pennsylvania No-fault Motor Vehicle Insurance Act [No-fault Act]. Appellee Mrs. Freeman’s husband was injured in an automobile accident, and died as a result of the injuries two weeks later, on September 15, 1978. Mr. Freeman was an uninsured motorist. Allstate therefore was designated as the servicing insurer under the assigned claims plan of the No-fault Act, 40 P.S. § 1009.108. Allstate paid the funeral expenses, hospital expenses and survivor’s loss benefits, but denied payment of work loss benefits. Mrs. Freeman accordingly filed a petition for payment of work loss benefits on November 6, 1980, a few weeks after the supreme court affirmed this court’s decision, filed on April 12, 1979, that the widow of an accident victim was entitled to recover, under the No-fault Act, the work loss benefits which her husband would have received if he had been permanently injured in the accident. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980).

In its answer to Mrs. Freeman’s petition Allstate simply denied liability. The court of common pleas however ordered Allstate to pay the work loss benefits, together with interest at the statutory rate of 18% per annum, see 40 P.S. 1009.106(a)(2). The court denied the petitioner’s request for attorney’s fees, which denial is not before us on appeal.

In its brief to this court Allstate argues that Mrs. Freeman was not entitled to work loss benefits because the Heffner decision is not to be applied retroactively, and also because in her individual capacity Mrs. Freeman is not entitled to work loss benefits since these benefits are the property of the decedent’s estate.

As to the first argument, we have this day decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), that the rule of Heffner is to be applied retroactively to cases not barred by the applicable statute of limitations.

As to Allstate’s second argument, after a careful examination of the record and of the opinion and order of the court of common pleas, we are satisfied that this was raised for. the first time in Allstate’s brief to this court. Pennsylvania Rule of Appellate Procedure 302(a) provides that issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Allstate therefore has waived the issue. However, were it not waived it would lack merit. The No-fault Act specifically intends the “compensation of the economic losses of the survivors of all individuals killed,” 40 P.S. 1009.102(a)(3) (emphasis added), and defines “survivor” in part as the “spouse”, 40 P.S. 1009.103. Compare Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), where this court en banc, HESTER, J., dissenting, declined to rule that recovery of work loss benefits under the No-fault Act should be limited to survivors, which ruling would have barred the right of the deceased victim’s estate to recover work loss benefits.

The order of the lower court awarding work loss benefits and interest at the rate of 18% is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . The instant case was consolidated for oral argument with Baker v. Aetna, supra, and five other cases.


text:
    454 A.2d 1108
    Vivian GILES a/k/a Vivian V. Murray, Administratrix of the Estate of William T. Giles, Deceased, v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 19, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    Herbert H. Yaskin, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

The appellant insurance company [Allstate] appeals from the order of the trial court which awarded payment to its insured, appellee Vivian Giles, of work loss benefits, together with interest at the rate of 18% per annum, pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act [No-fault Act]. The order granted appellee Mrs. Giles’ petition for No-fault benefits which she had filed based on a claim following the death of her son, William T. Giles, who died as a result of an automobile accident which occurred on February 10, 1979, in Colorado, where he was stationed with the United States Army. Mrs. Giles filed her petition on August 8, 1980.

Allstate initially denied any liability, but ultimately settled on the defense that its liability was limited to survivor’s loss benefits because the decision in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), affd, 491 Pa. 447, 421 A.2d 629 (1980) [Heffner], that work loss benefits were to be paid to the survivors of deceased accident victims as well as to permanently disabled accident victims, did not apply retroactively.

The trial court, citing its memorandum opinion in another case , based its decision on the determination that Heffner should be given retroactive effect. It awarded interest at the rate of 18% based on the No-fault Act, but denied the request by appellee for attorney’s fees.

We have this day decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), that the rule of the retroactivity of judicial decisions interpreting statutes should be applied to Heffner. Mrs. Giles is therefore entitled to the work loss benefits she claimed from Allstate, together with interest at the rate of 18%, to be calculated thirty days from when Allstate received reasonable proof of the fact and amount of No-fault Act losses incurred by Mrs. Giles by reason of the death of her son.

The order of the trial court awarding work loss benefits and interest is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. 1009.101 et seq. (Purdon Supp.1982).

      . The initial grounds for denial was that Mrs. Giles’ policy with Allstate did not provide security for her son.

      . I.e., Duross v. Aetna Life & Casualty Insurance Co., No. 1327, December Term, 1980 (C.P. Philadelphia, July 27, 1981).

      . See 40 P.S. § 1009.106(a)(2).

      . The within appeal was consolidated for oral argument with six other cases, including Baker v. Aetna, supra. In addition to the appellant brief filed by Allstate, this court also received a brief filed by the Insurance Federation of Pennsylvania as amicus curiae.

      . At oral argument and by letter to this court dated December 22, 1981, counsel for both sides stipulated that the issue of attorney’s fees was not raised in this appeal.


text:
    454 A.2d 1109
    Janice A. RITTNER Executrix of the Estate of Ernest Rittner, Deceased, and Janice A. Rittner, Trustee ad Litem, Appellee, v. AETNA LIFE & CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    Carol Nelson Shepherd, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

Appellant insurance company [Aetna] appeals from that part of an order of the trial court which awards appellee [Mrs. Rittner] work loss benefits and interest at the statutory rate of 18%, under the Pennsylvania No-fault Motor Vehicle Insurance Act. The trial court’s decision was based on this court’s decision in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980), which held that a widow was entitled to recover the work loss benefits which her husband would have recovered if he had been permanently injured in the motor vehicle accident which took his life.

Mr. Rittner was killed on December 20, 1978, when the car he was driving was struck by another. Our decision in Heffner was filed April 12, 1979. Mrs. Rittner’s petition for No-fault benefits was filed on December 22, 1980. In that petition, counsel for Mrs. Rittner averred that reasonable proof of the fact and amount of loss was supplied to Aetna on or about February 1, 1979. In her petition Mrs. Rittner sought payment of funeral expenses, survivor’s loss, work loss, attorney’s fees, interest and costs. Subsequently the claim for funeral expenses and survivor’s loss was honored by Aetna. But Aetna denied the work loss benefits on the ground that the decision in Heffner should not be applied retroactively. The trial court awarded the funeral expenses, survivor’s loss benefits, work loss benefits and interest at the statutory rate of 18%, but denied the request for attorney’s fees and costs.

Aetna’s argument in the consolidated appeal is based on the assertion that Heffner should not be applied retroactively. We have this day decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), that our decision in Heffner should be applied retroactively. Mrs. Rittner is therefore entitled to recover work loss benefits as provided for by the No-fault Act and by her husband’s insurance policy with Aetna.

The order of the trial court awarding work loss benefits together with interest at the rate of 18% is affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . Subsequently, further such proof was supplied to Aetna on or about January 16, 1981.

      . Mr. Rittner had paid an additional premium for “added loss benefits” which included a higher level of work loss benefits, above the statutory limit of $15,000.

      . Rittner v. Aetna Life & Cas. Ins. Co., No. 3714 December Term 1980 (C.P. Philadelphia County, August 3, 1981).

      . This appeal was consolidated for oral argument with, inter alia, Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

      . The question of the denial of attorney’s fees was not raised before this court. At oral argument, and in a letter submitted to the court on December 22, 1981, counsel for both sides stipulated that the issue of attorney’s fees was not raised in this appeal. We therefore do not reach this question.


author: WICKERSHAM, Judge:

text:
    454 A.2d 1111
    COMMONWEALTH of Pennsylvania v. Shirll JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1982.
    Filed Jan. 7, 1983.

      Charles A. Fitzpatrick, III, Philadelphia, for appellant.
    Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

On August 15, 1980, Shirll Johnson went to trial before the Honorable Kendall H. Shoyer and a jury on charges of theft and robbery, Nos. 1903 and 1904 May Term 1980.

In his opinion filed April 14, 1981, pursuant to Pa.R.A.P. 1925(a), Judge Shoyer summarizes the facts accurately as follows:

This is a ‘granny squad’ case. On April 25, 1980 at around 11:30 p.m. thirty-seven year old Shirll Johnson asked Grandpop Squad decoy Andrew Kalmar, No. 4487, sitting on a milk crate in the 1200 block of Cuthbert Street, Philadelphia, for some money. Cuthbert is a narrow street running parallel to and just south of Arch Street. Kalmer refused, but agreed to give defendant a cigarette. Johnson tried to grab from Kalmar the bundle of decoy play money, wrapped in. currency which he saw attached to Kalmar’s cigarettes with a rubber band. The two men wrestled. Johnson said: ‘Give it up’ as he grabbed the money, swung at Kalmar with his fist, missed and ran. Two back up policemen apprehended the defendant a few seconds later. After a trial before the undersigned and a jury the verdict was guilty of robbery.
Defendant filed two assignments of error in his post verdict motions which, after argument, were dismissed by the Court. This was defendant’s sixth felony conviction and he was sentenced to a term of five to twelve years in prison. From the sentence the instant appeal has been taken.

Lower ct. op. at 1-2.

Appellant argues in his brief that trial counsel was ineffective for failing to raise the issue of entrapment, “the only reasonable and credible defense available to appellant.” Brief for Appellant at 7.

Entrapment is defined as follows:

313. Entrapment
(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.
(c) Exception.—The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.

18 Pa.C.S. § 313.

In Commonwealth v. Lee, 262 Pa.Super. 218, 396 A.2d 724 (1978), appellant was convicted of promoting prostitution, and contended that a new trial was necessitated by the failure of the court below to charge the jury on entrapment:

The pertinent facts are simple. The Reading Police Vice Squad secured the assistance of an auxiliary policewoman, Ms. Donna Bendel, to act as a decoy in their investigations. She was instructed to stand in the area of Seventh and Chestnut Streets in the City of Reading, a section known to have a high incidence of crime. Both parties agree that she is an attractive woman, and her attire on the day in question included a pair of long pants, a white turtleneck sweater and a green T-shirt. Ms. Bendel’s orders were to say nothing until approached, and then merely to reply, ‘What do you mean’ if propositioned.
On March 26, 1976, appellant drove by the decoy, parked his car, and walked back to where she was standing. He then stated that she could earn more money by not walking the streets. She replied, ‘What do you mean,’ and he retorted that she would make more by turning tricks at the Mushroom Plant. She again responded, ‘What do you mean,’ and appellant argued that the career he proposed would be better than standing on a corner. Ms. Bendel then gave a signal to the police officers observing the scene, who apprehended appellant after a brief chase and arrested him.
The defense is available, however, and a jury charge is necessary, only if there is evidence that the defendant was not disposed to commit the crime and that the police conduct was likely to entrap the innocently disposed defendant____ Thus, artifice and strategem are legitimate tactics that may be employed by law enforcement officials to detect and combat crime. Merely affording opportunities or facilities for the commission of a crime by one who already had the criminal intent to engage in such a crime does not defeat the prosecution....
In the instant case, there is no evidence that the police action constituted a method of persuasion that created a substantial risk that persons not otherwise ready to commit the crime would do so. This is not a situation as was presented in Commonwealth v. Clawson, [250 Pa.Super. 422, 378 A.2d 1008], supra. In Clawson, a police informant asked the defendant if he could get a pound of marijuana for an acquaintance. The informant was a friend of the defendant and the latter said he would check on the availability of the drug. Subsequently, the defendant received $170 from the informant, procured the marijuana, and turned it over to the informant. The defendant had never been a drug dealer, did not make a profit on the deal, and testified that he delivered the marijuana only because the informant was a friend. The defendant was convicted of delivery of marijuana, but this court subsequently reversed the judgment of sentence and remanded for a new trial as a result of the failure to give instructions on entrapment.
Unlike Clawson, however, the decoy was here instructed not to initiate conversation with any potential customer, nor to speak at all, save for the non-committal ‘What do you mean.’ She did not quote prices or suggest locations for the proposed work; actions which might conceivably be construed as inducing the crime. Rather, she merely stood silently and allowed appellant to approach her.
There is nothing reprehensible about this procedure, and its use has been sanctioned in other jurisdictions. See, e.g., Williams v. United States, 342 A.2d 367 (D.C. 1975) (no entrapment found in a conviction for solicitation of prostitution when female police decoy said nothing and defendant broached terms for the ‘trick’); State v. Wilson, 41 Wis.2d 29, 162 N.W.2d 605 (1968) (no entrapment when non-uniformed male officer sat in car and was approached by a female who asked him if he wanted a girl and quoted terms for her work). If, as appellant contends, the ploy was infirm because of the decoy’s positioning in a high crime area, the police would be restricted from using efficacious methods of detection precisely in those areas in which crime control is most imperative. To adopt appellant’s argument would lead to just such an absurd result.
The judgment of sentence is therefore affirmed.

Id., 262 Pa.Superior Ct. at 220-223, 396 A.2d at 724-26.

Instantly we have a clear factual situation whereby the police properly used artifice and strategem to detect and combat crime. Officer Kalmar merely afforded opportunities for the commission of a crime by the appellant who clearly already had the criminal intent to engage in such a crime. Under the circumstances here present, entrapment was not an available defense and a jury charge on the same was not necessary or appropriate.

At trial Officer Andrew Kalmar had testified:
Q. Officer, would you describe briefly the function of the Grandpop Squad?
A. Yes. It is a detail composed of four men. We go into high crime areas where street robberies are committed dressed as insurance men, elderly people, whatever the type of crime might be. We go into these areas hoping if there is going to be a robbery that it will be committed on us rather than a citizen.
Q. Now, Officer, on April 25th of 1980 were you working as a police officer that date?
A. Yes.
A. On that day I was dressed as an elderly person. I had on an older suit, a boot on one foot and a hospital shoe on my other foot, a sport coat, a shirt with a sweater over it, and a long three-quarter length black overcoat. I had a hat and my beard was much longer then than it is now.
Q. Now, Officer, after those two men left what, if anything, did the defendant do or say?
A. He then came over to me and he asked me for some money. I told him that I only had enough for bus fare. And then he said, well, give me a cigarette, and I did. I gave him a cigarette.
Q. From where did you produce the cigarette, Officer.
A. The cigarette was in my left front coat pocket.
Q. Did you take out a pack?
A. Yes.
Q. After you gave the defendant this cigarette what, if anything, happened?
A. He stood in front of me and he had his own matches. He lit the cigarette up and he looked around. He looked up and down the street back and forth a few times.
Q. At that point did you see any other persons on the 1200 block of Cuthbert Street?
A. No.
Q. Then what happened?
A. Like I said, he looked around left, right a few times and then I was pushed back, suddenly pushed back against the wall.
Q. By whom were you pushed?
A. By the defendant here.
Q. Which hand did he use to push you?
A. He used his left hand. And at the same time as he pushed me back against the wall, straightening me up he went into my left front coat pocket with his right hand and he took out twelve one-dollar bills.
Q. Did you have those bills loose or how were they in your pocket?
A. The bills were attached with a rubber band which also had some theatrical money inside the bills and they were attached to my cigarettes by a rubber band.
Q. Now, Officer, while we are talking about these bills, was there anything unusual about the dollar bills?
A. The dollar bills were marked with my badge number on them, 4487.
Q. Now, after the defendant went in your pocket—with which hand?
A. His right hand.
Q. —what happened?
A. As he went in and he took the money out of my pocket, I grabbed his hand and he said, ‘Give me a dollar, pop.’
I said, ‘No.’
And then he—I continued holding his hand and he told me, ‘Give it up.’ That was his words, ‘Give it up.’
And at that point with his left hand he swung at my head, which I ducked, and then he pulled away from me and he partially pulled me up off the street and he started to run east on Cuthbert Street.
Q. At that point did the defendant say anything else?
A. No.
Q. He began to run in which direction?
A. I’m sorry. There was—if I might go back a second. There was one other thing that he said. I told him, I said, ‘Please, it’s all the money—’. When I was holding onto his hand, I said, ‘Please, that’s all the money I have.’
And he said, “I don’t give a fuck.’ And that's when he swung at my head.
Q. As he ran off, which direction did he go?
A. He ran east on Cuthbert Street.

Record at 21-22, 29-32.

In Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980), we said:

“This rule calls for an objective evaluation of police conduct to determine whether there is a substantial risk that the offense will be committed by persons innocently disposed. Thus ... it must be shown that the police conduct would have induced an innocent person to commit the crime.” Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979). See Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976); Toll, Pennsylvania Crimes Code Annotated, p. 146 (1974) (Reporter’s Comment: “This section overrules the predisposition test”).

Id., 281 Pa.Superior Ct. at 109, 421 A.2d at 1171.

Moreover, trial counsel’s decision to present a particular defense is a tactical one and counsel is not ineffective so long as his chosen course of action has some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). See also Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) (where it was stated that a reviewing court should not view in hindsight whether one course of action was more reasonable than another). Since proffering an entrapment defense necessarily requires a defendant to admit the crime, counsel could have deemed it more reasonable under the facts here to simply challenge the sufficiency of the evidence. An entrapment defense, in addition to its futility, would have removed this option. Viewing the record, it is clear that trial counsel afforded defendant a reasonable defense effectuating defendant’s best interest.

The final issue raised by appellant is utterly devoid of merit. Appellant suggests that he was compelled by the trial court to be represented by an attorney in whom he had a lack of confidence. The record belies this allegation. Appellant concedes in his brief that “appointed counsel was an experienced and skilled attorney.” Brief for Appellant at 12. At a hearing held August 15, 1980 before Judge Shoyer, the following colloquy took place:

BY THE COURT:
Q. Mr. Johnson, you are represented by the Public Defender’s Office, by Mr. Martin Stanshine, who I know to be competent counsel.
What’s your problem?
A. He told me that this case is real serious and I don’t like the way he was talking. I would like to get a court-appointed lawyer.
Q. Do you have funds to retain your own lawyer?
A. No, I don’t.
Q. Well, we don’t appoint private counsel when we have the Public Defender who is thoroughly experienced and ready to proceed.
A. Well, I don’t like the way he talked to me upstairs. Couldn’t I get another lawyer?
Q. What didn’t you like about the way he talked to you?
A. The attitude he took.
Q. What do you mean by the attitude?
A. You can tell if somebody talks to you real nasty.
Q. Just what did he say?
A. I don’t pay that much attention, but the attitude he took. You know, when somebody takes an attitude.
Q. You will have to be explicit and explain what you mean.
A. Well, I prefer not to have him.
Q. Well, that’s no reason for me to remove him. I know he is competent.
A. I’m not a lawyer. I can’t go into the words.
Q. I know he is competent.
A. Well, that’s you. I don’t want him.
Q. Well, you can get somebody you want that you can pay for.
A. Well, if I have to have him—you say I have to, I have to.
Q. You have to what, Mr. Johnson? I assume you are not a lawyer. Under the law you are entitled to competent counsel. Now, just because you don’t like the counsel or the way he talks to you, approaches you, is not sufficient.
THE DEFENDANT: Will you explain to him upstairs because he might not believe me.
MR. STANSHINE: Explain what I said upstairs? What part?
THE DEFENDANT: The curse words you used.
MR. STANSHINE: Would Your Honor like to hear the curse word I used?
THE COURT: Yes.
MR. STANSHINE: I told him, T don’t want anymore of this bull shit.’
THE DEFENDANT: What do you mean by bullshit?
MR. STANSHINE: When you say ‘Let’s give up, I’m going to be convicted.’ That.
THE DEFENDANT: I didn’t tell you that. I said I’ve been through this before. You don’t consider that coming to me the wrong way?
THE COURT: No, not the way he explained it to me.
THE DEFENDANT: It’s out of my hands. I just said I didn’t want him.
THE COURT: He’s experienced and he has been trying cases for eleven years.
THE DEFENDANT: The way he said it. When people say things the expression on their faces looking directly at him, he didn’t have the expression that he had on his face when he talked to you that he had when he was talking to me.
THE COURT: That’s not sufficient. I’m sorry.
THE DEFENDANT: Okay. If you say so.
THE COURT: You will have an opportunity to participate in the selection of the jury, twelve citizens and two alternates from the City of Philadelphia.
The motion for change of counsel is denied.

Record at 3-6.

Pa.R.C.P. 316 provides:
Rule 316. Assignment of Counsel
(a) In Summary Cases
Counsel shall be assigned in all summary cases to all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed.
(b) In Court Cases
In all court cases counsel shall be assigned prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel.
(c) In all Cases
(i) The court, of its own motion, shall assign counsel to represent a defendant whenever the interests of justice require it.
(ii) A motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons.
(iii) Where counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings upon direct appeal.
(Emphasis added.)

In Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979), we said:

Appellant also contends that he was deprived of his right to counsel when the court refused to replace trial counsel as requested by appellant. Appellant claims such a replacement should have been made because the attorney-client relationship deteriorated due to counsel’s advising appellant to plead guilty, and because both appellant and counsel joined in the motion for replacement. It is well established that an indigent is entitled to free counsel, but not entitled to free counsel of his choice, see Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968), and although the right to counsel is absolute, there is no absolute right to a particular counsel. See United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir.1969), cert. denied 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). Upon appellate review, we are mindful that the decision whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court, Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975), and as such, should not be overturned unless we find an abuse of that discretion.

Id., 265 Pa.Superior Ct. at 447, 402 A.2d at 522-23.

Instantly, we find no abuse of discretion.

Judgment of sentence affirmed.

      . Appellant sets forth the statement of questions involved as follows:
      I. Did defense counsel's failure to raise the defense of entrapment constitute ineffective assistance of counsel in violation of appellant’s constitutional rights?
      II. Did the trial court’s denial of appellant’s motion for change of attorney, deprive appellant of his constitutional right to effective assistance of counsel?
      Brief for Appellant at iii.

      . Though not raised previously, this issue has not been waived. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
      We have recently held that newly appointed or retained counsel must raise on appeal the ineffectiveness of his predecessor trial counsel or that claim will be deemed waived. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975); Commonwealth v. Strachan, 460 Pa. 407, 333 A.2d 790 (1975); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). The rule that emerges from these cases is that ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant.

        Id., 472 Pa. at 276-77 n. 6, 372 A.2d at 695 n. 6.


author: McEWEN, Judge:

text:
    454 A.2d 1117
    Andrea W. MAHONEY, Appellant, v. Felty A. FURCHES and Lula Belle Furches.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed Jan. 7, 1983.
    Petition for Allowance of Appeal Granted April 15, 1983.

      Sam Ferguson Musser, Lancaster, for appellant.
    David E. Wagenseller, Lancaster, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here review an appeal from the order of the Common Pleas Court of Lancaster County by which the learned Judge Wilson Bucher sustained the preliminary objection of appellee in the nature of a demurrer and decreed that the terms of the mortgage between appellant-mortgagor and appellees-mortgagees preclude the payment in advance of the entire principal balance together with interest. We affirm.

The sole question set forth in the brief of appellant is: When a mortgage provides for annual payments of $19,-000.00 on principal and also provides for an annual interest payment, but specifies no term for the mortgage, may the mortgage debt be paid in full at any time?

We observe preliminarily that the provisions of the Act on Maximum Interest Rates are not pertinent to our study for the reason that the prohibition of prepayment penalties refers only to residential mortgage obligations:

§ 405. Prepayment penalty prohibited
Residential mortgage obligations contracted for on or after the effective date of this act may be prepaid without any penalty or other charge for such prepay-payment at any time before the end of the period of the loan.

The pertinent mortgage in the amount of $363,120.80 upon 154.68 acres is not a “residential mortgage” as that term is defined by the Act.

We note that both appellant and appellees invite our attention to certain of the principles pronounced in Ladner on Conveyancing in Pennsylvania:

If the mortgage debt is ‘payable within’ a stipulated time, ordinarily it may be paid (with interest accrued to the date of payment) at any time within that period desired by the mortgagor, although the mortgagee cannot require such payment until expiration of that time period. But in the case of an installment mortgage (in which the principal debt is payable ‘within’ a fixed time, but in period installments instead of in one lump sum), whether the unpaid balance of principal may be paid before it is due depends upon the size of the installments. If they do not aggregate the total principal debt by the expiration of the term (e.g., a $2,500 debt to be paid within five years, with $25.00 monthly installments of principal to be paid), the amount of each periodic installment stipulated is the minimum which the mortgagor must pay, but is not the maximum which the mortgagee is required to accept. Hence, the mortgagor may pay off the mortgage debt at any time within the term. But if the installments are so calculated as to equal the principal sum, with interest, at the expiration of the term, the installments are both the minimum required to be paid and the maximum required to be accepted; and the mortgagor is not entitled to prepay the balance of principal without the consent of the mortgagee, (footnotes omitted). Ladner on Conveyancing in Pennsylvania, Revised, Vol. 2, § 12.09(b), p. 13 (Clark, Ladner, Fortenbaugh & Young ed. rev. 4th ed. 1979).

Two of the decisions of this court upon this issue were studied by the Supreme Court of Connecticut when that court in Dungan v. Grzybowksi, 165 Conn. 173, 332 A.2d 97 (1973), concluded that a mortgagor could not, without a prepayment clause, compel a mortgagee to accept full payment of the balance of the principal, including accumulated interest due, before the due date of the mortgage and explained:

As one text writer explains the custom of denying prepayment rights, ‘[t]his freedom of the mortgagee from anticipation is of increasing value as the mortgage becomes more and more an investment instrument, designed to secure a regular flow of income. Current institutional mortgages customarily exact substantial amounts as conditions of accepting prepayment.’ 3 Powell, Real Propery p. 656 n. 4. In contrast, a mortgage note designed primarily to give the lender security for the timely repayment of his money at a profitable rate of interest, will more likely contain a prepayment clause without a penalty attached. The object of the clause is generally to encourage repayment, whereas in absence of such a clause, courts tend to construe the mortgage note as intended to secure regular investment income to the mortgage over a definite period of time. Compare, as examples of the first instance, ... Beth-June, Inc. v. Wil-Avon Merchandise Mart, Inc., 211 Pa.Super. 5, 233 A.2d 620, with ... Hensel v. Cahill, 179 Pa.Super. 114, 116 A.2d 99, as examples of the latter____

Dungan v. Grzybowski, supra, 165 Conn. at 176-177 n. 2, 332 A.2d at 99 n. 2. (citations omitted).

As our distinguished colleague Judge Harry A. Montgomery declared in Beth-June, Inc. v. Wil-Avon Merchandise Mart, Inc., 211 Pa.Super. 5, 9, 233 A.2d 620, 622 (1967), “[w]hen the payment of principal is due, depends upon the wording of the mortgage and of course the intention of the parties thereto. Hensel v. Cahill, 179 Pa.Super. 114, 116 A.2d 99 (1955).” This court there studied a mortgage agreement that expressed the amount of the monthly payments, as well as the date upon which the final monthly payment was due, but recited immediately prior to the date of the last monthly payment, “if not sooner paid”. The court held that such a phrase had independent significance and reflected that it was the intention of the parties to provide for the prepayment of the principal.

This court in Hensel v. Cahill, supra, studied a mortgage calling for the repayment of the sum of $2,000.00 with interest at 5% payable “within fifteen (15) years in monthly installments of $15.82 each.” The monthly payments of $15.82, if made according to the terms of the mortgage, would have discharged the obligation, principal and interest at 5%, in precisely fifteen (15) years from the date of the mortgage. The terms of the mortgage contained no provision that allowed prepayment. The mortgagor contended that the mortgagee was obliged to satisfy the mortgage at any time on payment of the balance of unpaid principal with interest to the date of payment. The mortgagee asserted that the mortgage was purchased “ * * * on the basis of obtaining an investment that would continue during the period provided in the mortgage, and if the mortgage is now paid off the Estate will be obliged to reinvest the proceeds most likely in Government Bonds and will lose the benefit of the interest rate of the mortgage.” Hensel v. Cahill, supra, 179 Pa.Superior Ct. at 116, 116 A.2d at 100. This court held:

In our view [the mortgagor] could not have compelled the satisfaction of the mortgage at any time on payment of the balance of principal with interest to the date of payment. The mortgage was payable ‘within fifteen years’ but by its terms specified exactly how it was to be paid within that period. The monthly payment of $15.82 was both the minimum required and the allowable maximum which the [mortgagee] was obligated to accept. Hensel v. Cahill, supra, 179 Pa.Superior Ct. at 116, 116 A.2d at 100.

Appellant contends that the “term” of the obligation is neither expressly nor impliedly specified in the mortgage agreement. We, however, agree with the finding of the hearing court that “the term of the obligation is implicitly expressed in the provision requiring $19,000.00 to be paid per year until the principal debt is paid in full.” (emphasis supplied).

Appellant proceeds to argue that the mortgage agreement would allow her to pay each specified periodic payment at any time throughout the specified payment period, since the final payment could be made any time between the first and last day of the twentieth year, rendering it impossible to determine when the mortgage term will end. We reject this contention as determinative of her claim that the mortgagor can compel the mortgagee to accept at any time the payment of the full balance of principal with interest only to the date of payment.

Appellant asserts that it was error for the hearing judge to conclude that it was “the parties’ intention that the mortgage be paid at the rate of $19,000.00 annually, and that the annual payment of $19,000.00 be both the minimum required and the allowable maximum which the defendants were permitted to collect.” Appellant argues that the phrase “payable at the rate of $19,000.00 annually” expresses only an intention of the parties that such a sum was the minimal amount that had to be paid.

The thrust of the effort of the hearing court must be to determine the “intention” of the parties to the mortgage agreement. There is here, however, no clear expression of that intent. It is to be noted, however, that the terms of the mortgage agreement provide for: (1) equal principal payments (2) to be made over twenty (20) years, albeit the final payment is of a reduced amount, and (3) an annual payment of interest on the unpaid balance. The selection by the parties of the figure of $19,000.00 as the installment of principal paid each year reflects an intention to provide for payment of such a sum of principal annually through the life of the mortgage, even though the final payment would not be equal to that amount. It merits reiteration that the document under study contains no clear language that would provide for prepayment nor even phrases or terms from which an inference of a prepayment privilege can be argued. Accordingly, we will not disturb the conclusion of the hearing judge that the parties did not intend to provide for prepayment of the obligation and that, therefore, the terms of the mortgage preclude prepayment.

While we conclude that the mortgagor cannot compel the satisfaction of the. mortgage at any time by the mere payment of the balance of principal with interest to the date of payment, in the absence of any clause that permits such prepayment, it would be neither practical nor equitable and, in fact, would be a violation of public policy as a restraint upon alienation, if we were to preclude the satisfaction of this mortgage once the mortgagor has provided for a method of prepayment that enables the mortgagee to reap all the benefits of the bargain including, of course, insulation of the mortgagee from such adverse tax consequences as may follow the prepayment. Appellant in her Statement of the Case does refer to the rejection by the mortgagee of an offer by the mortgagor to have a bank guarantee payment of the mortgage in return for an agreement by mortgagees to release portions of the mortgaged premises as requested by the mortgagor; appellant has not, however, in the within declaratory judgment action proceeded upon the theory that a mortgagee should be compelled to satisfy the mortgage as soon as the mortgagor, as borrower, has enabled the mortgagee, as lender, to attain all of the benefits of the bargain.

Order affirmed.

CAVANAUGH, J., concurred in the result.

      . 41 P.S. § 101 et seq. (Purdon 1982).

      . 41 P.S. § 405 (Purdon 1982).

      . 41 P.S. § 101 (Purdon 1982).


author: HOFFMAN, Judge:

text:
    454 A.2d 1121
    COMMONWEALTH of Pennsylvania v. Jeremiah RUMSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Jan. 7, 1983.

      Francis M. Walsh, Assistant Public Defender, Norris-town, for appellant.
    Joseph J. Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in upholding the constitutionality of section 308 of the Pennsylvania Crimes Code limiting the defense of intoxication in criminal proceedings. Finding the statute constitutional, we affirm.

Appellant, an inmate at Graterford prison, was arrested on November 15, 1978 for allegedly assaulting prison guards by swinging a sharpened scissors at them. He inflicted no injury. At trial, appellant attempted to introduce evidence that he had been drunk on bootleg wine and thus unable to form the requisite criminal intent for assault by a prisoner, 18 Pa.C.S.A. § 2703 (“intentionally and knowingly”), or aggravated assault by attempt to inflict serious bodily injury, id. § 2702; 901 (“intentionally”). Relying upon section 308, the lower court refused the intoxication evidence, and found appellant guilty of aggravated assault, assault by a prisoner, recklessly endangering another person, and simple assault. It denied his post-trial motions, and imposed sentence, prompting this appeal.

Appellant contends that § 308 limiting the defensive use of voluntary intoxication evidence is unconstitutional. The statute provides:

Neither voluntary intoxication nor drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

Act of April 7, 1976, P.L. 72, No. 32, § 1, immediately effective; 18 Pa.C.S.A. § 308 (Supp.1974 to 1981). If read literally as an evidentiary rule merely precluding evidence of intoxication without redefining the mens rea element of crimes, this statute may be subject to attack as: (1) a legislative invasion of the Supreme Court’s constitutional prerogative to make rules of evidence, Pa. Const, art. V, § 10(c); (2) barring the use of relevant evidence without sufficient justification, see Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and (3) allowing convictions without proof of all elements of the crime beyond a reasonable doubt, see Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). These particular constitutional objections however, are not dispositive of the constitutionality of the statute. Legislative enactments are presumed valid, and will be stricken only if incapable of a constitutional construction. Appellant thus carries the heavy burden of demonstrating that the challenged statute clearly, plainly, and palpably violates the United States or Pennsylvania constitutions. Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981). Viewed in the light most favorable to constitutionality, it is apparent that in amended § 308 the legislature in effect redefined the mens rea element of intentional or knowing crimes to include those cases when the putative offender performed the criminal act but was unable to form the criminal intent otherwise required solely because he was voluntarily drunk or drugged. See Pa. Supreme Ct. Commission on Standard Jury Instructions, Draft Report at 2 (April 24, 1976) (suggesting this interpretation). Cf Commonwealth v. Pickett, 244 Pa.Superior Ct. 433, 368 A.2d 799 (1976) (amended § 308 is not just a procedural rule because in effect it punishes acts that would not have been criminal under prior § 308 or would have been punishable only as lesser crimes). Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a permissible part of the legislature’s role in the “constantly shifting adjustment between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man.” Powell v. Texas, 392 U.S. 514, 536, 88 S.Ct. 2145, 2156, 20 L.Ed.2d 1254, 1269 (1968). In light of the history and nature of the voluntary intoxication defense and the purpose of a mens rea element in crimes, we are satisfied that the legislature has acted within permissible constitutional bounds in enacting amended § 308.

Although voluntary intoxication has never been a complete defense that would exonerate or excuse a crime, e.g. Commonwealth v. Gordon, 490 Pa. 234, 416 A.2d 87 (1980); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970); see Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981) (collecting cases), it has often been recognized as so debilitating to an actor’s mental processes as to undermine his ability to form certain types of mens rea. Thus, many jurisdictions, including Pennsylvania, permit the introduction of voluntary intoxication evidence to negate the mens rea element of at least certain crimes. See Commonwealth v. Bridge, supra (citing 18 jurisdictions and earlier Pennsylvania cases).

Pennsylvania’s response to the problem of the intoxicated offender and the defensive use of voluntary intoxication evidence has varied dramatically and unpredictably. Before 1971, several lower courts admitted intoxication evidence to negate the specific intent element of many crimes. E.g., Commonwealth v. Bell, 189 Pa.Superior Ct. 389, 150 A.2d 174 (1959) (burglary). In 1971, our Supreme Court declared voluntary intoxication evidence to be inadmissible to negate the mens rea element of any crime except premeditated murder. Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971). The Court reversed itself in 1975, holding that, for pre-Crimes Code offenses, voluntary intoxication evidence could negate the mens rea element of any specific intent crime. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). Meanwhile, the legislature had enacted the Crimes Code, effective June 6, 1973. The first version of the Code adopted the position of the Model Penal Code drafters, that “evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense.” Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973; 18 Pa.C.S.A. § 308 (repealed). Our courts interpreted this section to allow the admission of voluntary intoxication evidence to negate the elements of “intentionally” or “knowingly,” 18 Pa.C.S.A. § 302, for any Crimes Code offense. E.g., Commonwealth v. Santiago, 489 Pa. 527, 414 A.2d 1016 (1980) (to negate “intentionally” element of robbery); Commonwealth v. Grassmyer, 266 Pa.Superior Ct. 11, 402 A.2d 1052 (1979) (to negate “knowingly” element of endangering the welfare of children, but not to negate “recklessly” element of aggravated assault when injury actually inflicted). However, in 1976, the legislature enacted the amended version of § 308 declaring voluntary intoxication evidence legally irrelevant to the issue of intent, and admissible only when offered by the defendant and “relevant to reduce murder from a higher degree to a lower degree of murder.” Act of April 7, 1976, P.L. 72, No. 32, § 1, immediately effective; 18 Pa.C.S.A. § 308. Our courts promptly applied this statute. E.g., Commonwealth v. McConnell, 292 Pa.Superior Ct. 160, 436 A.2d 1201 (1981) (voluntary intoxication evidence may not be used to negate “intentionally” element of retail theft); Commonwealth v. Boyd, 271 Pa.Superior Ct. 88, 412 A.2d 588 (1979) (not to negate “intentionally” elements of robbery underlying second degree murder nor of conspiracy). See Commonwealth v. Ruff, 266 Pa.Superior Ct. 497, 405 A.2d 929 (1979) (may reduce murder from first to third degree, but may not negate “malice”—reckless disregard of human life—element of third degree murder).

Our courts’ and legislature’s varying approach to the defensive relevance of voluntary intoxication is not atypical. At common law, the problem of the intoxicated offender greatly influenced the development and definition of the mens rea elements of crimes. “The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender,” as courts attempted to reconcile the “conflicting feelings of sympathy and reprobation” for those who commit crimes while intoxicated. People v. Hood, 1 Cal.3d 444, 82 Cal. Rptr. 618, 462 P.2d 370 (1969) (TRAYNOR, C.J.). In addressing the relation of various mens rea elements to voluntary intoxication, the Model Penal Code drafters articulated the following justification:

[W]hen purpose or knowledge, as distinguished from recklessness, is made essential for conviction, the reason very likely is that in the absence of such states of mind [1] the conduct does not present a comparable danger, as in burglary or theft; or [2] that the actor is not deemed to present as significant a threat, as in treason and perhaps first degree murder; or, finally, [3] that the ends of legal policy are served by bringing to book or subjecting to graver sanctions those who consciously defy the legal norm.

Model Penal Code, Comments to § 2.08 at 7-8 (Tent. Draft No. 9, 1959). The drafters concluded that voluntary intoxication could negate these mental elements because they embodied “the basis of law’s concern,” and thus the reason for their non-existence should be “immaterial.” Id. at 8.

The Pennsylvania legislature’s departing from the drafters’ conclusion is a policy judgment bearing a rational relation to demonstrated facts and permissible social goals. Although the Crimes Code, by establishing a range of related lesser crimes for most criminal acts, reduces the likelihood of unjustified complete acquittals for the voluntarily intoxicated offender—as feared by the court in Commonwealth v. Tarver, supra—the legislature could nonetheless reasonably decide that a return to the Tarver position of allowing voluntary intoxication only to reduce the degree of murder, see Commonwealth v. Bridge, supra, was an appropriate adjustment to the scheme of criminal liability in the Crimes Code. That amended section 308 adopts the Tarver position does not undermine its constitutionality because Tarver was overruled on non-constitutional grounds. See Commonwealth v. Graves, supra (overruling Tarver). Although mere overindulgence or intoxication are not so morally reprehensible as consciously inflicting injury upon another, the legislature may emphasize concerns other than moral culpability in determining the elements of a crime. Powell v. Texas, supra. For instance, in upholding the constitutionality of strict liability crimes, the U.S. Supreme Court noted that the legislature may balance the hardship to offenders against that to victims, and impose responsibility upon those with a better opportunity to prevent the proscribed consequences. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). That the hardship to victims is considerable is well-demonstrated. Drunk or otherwise intoxicated persons have been shown to commit nearly half the violent criminal acts that come to the attention of the police. More, Legal Responsibility and Chronic Alcoholism, 122 Am.J.Psych. 748, 753 (1966) (64% of felons arrested during study in Cleveland had urine alcohol level of 0.10 percent or higher; in 44% of murders in Philadelphia during study both victim and offender had been drinking; many offenders were chronic alcoholics similar results in foreign studies). Voluntary intoxication is within the control of the actor, and thus, as our courts have often noted, it is a defense peculiarly subject to fabrication and false claims. See Commonwealth v. Bridge, supra; Commonwealth v. Ingram, supra. Unlike the defenses of insanity or diminished capacity, it does not result from a disease or defect of the mind, but rather from a state that is voluntarily self-induced, and thus curtailment of the defensive relevance of voluntary intoxication does not run afoul of the equal protection or cruel and unusual punishment clauses. See Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979). See generally, Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Although full exposure to criminal liability may seem unduly harsh to the inexperienced actor who cannot anticipate the effects of alcohol or drugs, and ignores the disparity between those who harbor criminal intent before becoming intoxicated and those who decide upon a criminal act only after falling into that state, such unfairness as exists may be mitigated through the court’s discretion to impose less than the maximum sentence. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). In light of these circumstances, the legislature could reasonably conclude that the criminal law’s goals of just retribution, deterrence, preventing recidivism, and rehabilitation would be better achieved by exposing voluntarily drunk or drugged offenders to more serious criminal liability through the redefinition of the mens rea element effected in amended § 308. Accordingly, we find 18 Pa.C.S.A. § 308 constitutional, and thus affirm the judgment of sentence.

Judgment of sentence affirmed.

       We need not reach the question of mental disease resulting from habitual long term abuse of drugs or alcohol. We are concerned here with an acute episode. See Commonwealth v. Hicks, 483 Pa. 305, 311 n. 5, 396 A.2d 1183, 1186 n. 5 (1979).


text:
    454 A.2d 1125
    Stanley P. BROZANA, Jr., Appellant v. Dr. John L. FLANIGAN, Jr., Dr. Edward W. Cubler, and the Pottsville Hospital and Warne Clinic.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1982.
    Filed Jan. 7, 1983.

      Edward F. Silva, Philadelphia, for appellant.
    Wiley P. Parker, Lebanon, for Flanigan, et al.
    No appearance entered nor briefs submitted on behalf of Pottsville, et al., appellees.

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

Appellant contends that the lower court erred in several evidentiary rulings and in its charge to the jury. Finding no merit to these contentions, we affirm.

Appellant was admitted to Pottsville Hospital on September 14, 1974 for treatment of wounds caused by the accidental discharge of his .41 caliber magnum pistol. The bullet had entered the rear of his right leg, below the knee, exited the front, four inches lower, and then struck the middle toe of his foot. Appellee, a general surgeon at Pottsville Hospital, prescribed a passive treatment of appellant’s wound. Appellant subsequently became dissatisfied with the treatment and lack of progress, and on October 5, 1974 obtained a transfer to Reading Hospital. There, his gangrenous leg was amputated below the knee twelve days later. Appellant brought this action against appellee alleging negligence and malpractice in the treatment of his wounds. Following a lengthy trial, the jury determined that appellee had been negligent in his treatment of appellant, but that his negligence was not a substantial factor in the loss of appellant’s leg. Following the denial of post-trial motions and the entry of judgment , appellant brought this appeal.

Appellant challenges several of the lower court’s evidentiary rulings. “The general rule is that questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists.” Westerman v. Stout, 232 Pa.Superior Ct. 195, 202, 335 A.2d 741, 745 (1975). Appellant contends first that the lower court erred in permitting appellee’s expert to testify to the success rates of arteriografts generally and in cases of arteriosclerotic blockage. One of appellant’s theories of appellee’s negligence was the failure to perform an arteriogram, a test that would have indicated damage to the arteries and the need for an arteriograft to restore the blood flow to the lower leg. In response to that contention, appellee’s expert testified to reasons why arteriografts are not always successful and opined that under the circumstances of this case, there was no chance for a successful graft. We agree with the lower court that the expert’s testimony was relevant to the determination of whether appellee’s actions increased the risk of harm to appellant’s leg and was thus, admissible. Similarly, the witness’s discussion of arteriografts in cases involving arteriosclerotic blockage was not improper. The witness readily admitted under cross-examination that appellant, a 22 year old man, gave no indication of arteriosclerosis and that the reference to arteriosclerotic blockage had been only illustrative. The lower court acted well within its discretion in permitting the witness to explain his testimony through the example.

Appellant challenges the.lower court’s refusal to limit appellee’ cross-examination of him. Appellant testified in pretrial depositions that none of the physicians at Reading Hospital had ever discussed with him his treatment at Pottsville Hospital. During trial, he testified on cross-examination that an unnamed doctor or intern had told him on his admission to Reading Hospital that “they waited too long to send you down here.” (N.T. at 163). Appellee immediately cross-examined him further on the inconsistency with the deposition testimony. During rebuttal, appellant testified additionally that appellee’s expert, who had treated appellant at Reading Hospital, told him several weeks after the amputation that the leg may have been salvageable if appellant had come to the Reading Hospital sooner. (N.T. at 569). Appellee again sought to cross-examine appellant as to the inconsistency between this testimony and that given in the deposition and earlier at trial. Appellant contends that the lower court erred in permitting this questioning. A party who testifies “may be cross-examined freely as to any matter relevant and material to the issues.” Jess v. McMurray, 394 Pa. 526, 527, 147 A.2d 420, 421 (1959). The credibility of a witness on dispositive facts is always at issue. Cf. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). The jury was entitled to hear appellant’s explanation of his prior failures to recount the conversation. His faulty memory or lack of candor were certainly relevant to the jury’s determination of his credibility. Appellant’s contention that the cross-examination was unfair and improper because he had earlier refrained from testifying about the conversation because it was hearsay is disingenuous. Appellant was asked by appellee on cross-examination whether he had had any conversations with the Reading doctors about his treatment at Pottsville. Appellee could hardly have objected to the hearsay answer he requested. Moreover, appellant readily divulged the hearsay statement allegedly made by the unnamed doctor or intern at the time of his admission to Reading. Further, appellant explained that he had only recently recalled the conversation. Under these circumstances, it was within the lower court’s discretion to permit appellee to probe appellant’s inconsistent statements, and thus, we find no error.

Appellant contends finally that the lower court erred in its charge on causation. Specifically, appellant contends the following charge misstates his burden of proof:

If you find that the defendant was negligent, whether his negligence was a substantial factor in the loss of the leg, or whether his negligence increased the risk of the loss of the leg and substantially caused that loss. These are things which you have to determine.

Appellant argues that he need not prove that appellee’s actions “substantially caused” the loss, but only that it was a substantial factor in causing the loss. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Although we agree that the excerpted portion of the charge is not entirely accurate, “we must not take the challenged words or passage out of the context of the whole charge, but must look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” McCay v. Philadelphia Electric Co., 447 Pa. 490, 499, 291 A.2d 759, 763 (1972), quoting Whitner v. Lojeski, 437 Pa. 448, 454, 263 A.2d 889, 892 (1970). Earlier in its charge, the court stated:

Negligent conduct is the legal cause of an injury when it is a substantial real factor in bringing about the harm to the plaintiff. (605)
If he proves negligence and proves that the negligence was a substantial cause of the injury, then he has made out a case where he can recover. (605-06)
If you are satisfied from the evidence that [appellee] was negligent as I have defined that term, and if you are also satisfied from the fair weight of the evidence that his negligent act or omission increased the risk that the plaintiff would lose his leg, then you would find that such increased risk was a substantial factor in causing the loss of the leg. (606)
If you are satisfied from the evidence the [appellee] was negligent, and that his negligence first of all was a substantial factor in the loss of the limb, or if you find that his negligence increased the risk that the plaintiff would lose his leg, and that such increased risk was a substantial factor in causing the loss of the leg, then your verdict would be in favor of the plaintiff. (607-08)
[Appellant] claims that these items of neglect increased the risk that his right lower leg would have to be amputated and that such neglect or increased risk were substantial factors in causing the loss of the leg. (609)

(Emphasis added). Taken as a whole, the charge correctly informed the jury that appellee could be found liable if his negligence either was a substantial factor in bringing about the loss of appellant’s leg or increased the risk of losing the leg and that increased risk was a substantial factor in the loss of the leg. See Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981); Hamil v. Bashline, supra; Hoeke v. Mercy Hospital of Pittsburgh, 299 Pa.Superior Ct. 47, 445 A.2d 140 (1982); Restatement (Second) of Torts (1965) § 323(a). Moreover, the jury verdict was in the form of special interrogatories and the jury specifically answered “no” to the third interrogatory that asked “Did the negligence of [appellee] increase the risk that [appellant’s] leg would be lost and was the increased risk a substantial factor in causing the loss of [appellant’s] leg?” Accordingly, we find that the jury was properly instructed, and therefore affirm the order and judgment of the lower court.

Affirmed.

      . Appellee contends that this appeal should be quashed because appellant’s notice of appeal was filed 56 minutes before the praecipe to enter judgment. On May 18, 1981, appellee mailed a copy of his praecipe to enter judgment and his certification of mailing to appellant. Appellant received the documents in Philadelphia on May 19, 1981 and thereupon mailed his notice of appeal to the Schuylkill County Prothonotary that same day. The notice of appeal arrived at the Prothonotary’s office the next day and was time-stamped 56 minutes before appellee’s praecipe to enter judgment. Appellee argues that the appeal is thus premature. We shall not construe the rules of appellate procedure so strictly. See Pa.R.A.P. 105(a) (rules shall be liberally construed). Appellant waited until he received a copy of appellee’s praecipe to enter judgment pursuant to Pa.R.Civ.P. 237 before sending his own notice of appeal. We shall not hold appellant responsible for the unexplained delay in appellee’s praecipe reaching the Prothonotary’s office. Moreover, the official docket entries indicate that the praecipe was filed and judgment entered prior to the filing of the notice of appeal. Under these circumstances, we find that appellant has sufficiently complied with the requirements of Pa.R.A.P. 301, and the matter is properly before us.

      . Appellant contends also that the lower court erred in charging (1) that a physician is not to be held responsible if he followed the course of treatment advocated by a considerable number of his bretheren; and (2) that the degree of care to be exercised by a physician is that exercised by physicians in the same locality. We need not address the propriety of those instructions. The challenged instructions go only to appellee’s duty of care and not to whether his violation of that duty was a substantial factor in the loss of the leg. The jury, in finding appellee negligent, found that appellee had not met even these lesser standards of care. Nonetheless, it found that this negligence was not a substantial factor in the loss of the leg. Accordingly, because the challenged instructions, even if erroneous, were not relevant to the jury’s finding on causation, appellant was not harmed.


author: PER CURIAM:

text:
    454 A.2d 1128
    COMMONWEALTH of Pennsylvania v. Joseph Jude OLIVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 8, 1981.
    Filed Jan. 7, 1983.
    Joseph Jude Oliver, appellant, in pro. per.
    George Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   PER CURIAM:

We here review an appeal from the order of the Common Pleas Court of Berks County dismissing the petition of appellant captioned “Petition For Rule To Show Cause Why Incomplete Written Court Opinion Should Not Be Stricken In Its Entirety To Be ReWritten Or Correction Made By Way Of Addendum.” We are compelled to quash this appeal since the order appealed from is clearly interlocutory.

After trial, but prior to any sentencing proceeding, the Honorable Judge Frederick Edenharter issued the following Order, from which appellant brings this appeal:

ORDER
AND NOW, April 15, 1981, upon consideration of the within ‘Petition For Rule To Show Cause Why Incomplete Written Court Opinion Should Not Be Stricken In Its Entirety To Be Re-Written Or Correction Made By Way Of Addendum’ filed by Joseph Jude Oliver, Defendant in the above-captioned matter, the said petition is dismissed. The Clerk of Courts is directed to forward a copy of this Order and Petition to the following:
District Attorney of Berks County
A. Joseph Antanavage, Esq.,
Standby Counsel for Defendant
Joseph Jude Oliver, Defendant

Appellant has filed a pro se Notice of Appeal to this court. Our study of the record reveals, however, that a final judgment of sentence has never been imposed. As a result, the order appealed from is not a final order and we, therefore, quash this appeal. See Pa.R.A.P., Rules 301, 341, 42 Pa.C.S.A.; Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Nugent, 291 Pa.Super. 421, 435 A.2d 1298 (1981).

      . We quash this appeal without prejudice to any of the rights of appellant to undertake appeal proceedings when judgment of sentence has been entered.


author: CERCONE, President Judge:

text:
    454 A.2d 1129
    Charles D. RODGERS and Rose M. Rodgers, His Wife, Appellants, v. Leo J. YODOCK, Jr., William J. Yodock, John N. Yodock, Donald Martz, Partners Yodock Bros. Homes a/k/a Yodock Brothers Mobile Home Sales.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed Jan. 14, 1983.
    Frederick M. Stanczak, Bloomsburg, for appellants.

      John M. Kuchka, Berwick, for appellees.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellants, Charles D. Rodgers and his wife, Rose M. Rodgers, take this appeal from the order of the lower court staying writ of execution and levy. Because we find the order at issue to be interlocutory, we quash this appeal.

This action had its inception as a suit in assumpsit. Plaintiffs-appellants filed suit against Leo J. Yodock, Jr. and his partners, appellees herewithin, to recover their purchase money for a mobile home. The jury returned a verdict, which in effect was a recission of the contract between the parties. The verdict provided:

AND NOW, to-wit: Feb. 21, 1975, We, the jurors empaneled in the above entitled case, find a verdict in favor of Charles D. Rodgers and Rose M. Rodgers the return of the sum of the full purchase price of $5554.00 plus 6% simple interest of $666.48. Trailer to be returned to Yodock Brothers.

Subsequently, appellants filed a praecipe for a writ of execution, and the writ was duly entered. Shortly thereafter, appellees filed a petition to stay and set aside execution, alleging that appellees had tendered a cashiers check in the full amount of the verdict, but appellants refused the check. Whereupon, the court granted appellees petition to stay and the court entered this order.

“AND NOW, January 21, 1981, for the reasons set forth in the opinion of even date filed in the above-captioned matter,
“IT IS ORDERED that the writ of execution and levy heretofore issued or made in the above-captioned matter be and the same are hereby set aside.
“IT IS FURTHER ORDERED that further execution process may be undertaken by the plaintiffs unless, no later than thirty (30) days after the date of the filing of this order:
(a) The plaintiffs shall deliver or tender the delivery to the defendants of the mobile home which is the subject of the above-captioned suit, and,
(b) The defendants shall, upon such delivery or tender of the aforesaid, forthwith pay, in cash, by bank money order or by cashier’s or certified check, the amount set forth in the verdict of February 21, 1975, plus costs, to the plaintiffs’ counsel.
“In the event that the defendants shall fail to make payment as heretofore ordered and the plaintiffs shall have complied therewith and execution process is again instituted, the writ of execution shall be restricted to the amount of the said verdict.”

It is from this order that appellants are attempting to appeal.

The jurisdiction of this Court is set forth by the Judicial Code which provides in relevant part:

The Superior Court shall have appellate jurisdiction of all appeals from final orders of the court of common pleas____
The Judicial Code, the Act of 1976, July 9, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (1981).

An exception to this general rule is allowed for by the Judicial Code, which says:

An appeal authorized by law from an interlocutory order in a matter shall be taken to the appellate court having jurisdiction of final orders in such matters.
The Judicial Code, the Act of 1976, July 9, P.L. 586, No. 142, § 2, as amended by the Act of 1978, April 28, P.L. 202, No. 53, § 10(2), 42 Pa.C.S. § 702(a) (1981).

The Rules of Appellate Procedure provide that an interlocutory appeal as of right may be taken from specified types of orders. Pa.R.App.P. 311. An order staying execution is not among these particular interlocutory orders.

Appellants, however, refer us to the case of National Council of Junior Order v. Roberson, 214 Pa.Superior Ct. 9, 248 A.2d 861 (1969), wherein we held that an order indefinitely staying a writ of execution is final and appealable. Appellants assert that the herewithin order acts as a permanent stay. But as the Supreme Court said in Cherry v. Empire Mutual Insurance Company, 417 Pa. 7, 11, 208 A.2d 470, 471 (1965), “[W]hether or not a stay of execution is ‘final’ and, therefore, appealable depends upon the reason for which it was ordered.” In other words, the language of the stay itself must be examined.

In the instant case, it is clear that the stay was meant to be in effect only for thirty days. In relevant part, the order provided “that further execution process may be undertaken by the plaintiffs unless, no later than thirty (SO) days after the date of the filing of this order... ”, appellants return the mobile home and appellees return the money. (Emphasis added). By its order, the court was giving the parties thirty days to voluntarily satisfy the verdict. However, if the parties did not act within the specified thirty days, then the stay was of no further effect and plaintiff-appellants could undertake “further execution process.” The court’s order of stay was by its very terms of a brief and definite duration, i.e. an interlocutory order. Accordingly, appellants’ appeal must be quashed as being from an interlocutory order.

Appeal quashed.

       The authority of a court to stay a writ of execution is set forth in Pa.R.Crim.Pro. 3121, which, in relevant part provides:
      (b) Execution may be stayed by the court as to all or any part of the property of the defendant upon its own motion or application of any party in interest showing
      (1) a defect in the writ, levy or service; or
      (2) any other legal or equitable ground therefor.
      (c) In an order staying execution the court may impose such terms and conditions or limit the stay to such reasonable time as it may deem appropriate.


author: WIEAND, Judge: McEWEN, Judge,

text:
    454 A.2d 1131
    HOLT HAULING AND WAREHOUSING SYSTEMS, INC., Appellant, v. ARONOW ROOFING COMPANY.
    Superior Court of Pennsylvania.
    Argued March 30, 1982.
    Filed Jan. 14, 1983.

      Arnold Levin, Philadelphia, for appellant.
    Saul Doner, Philadelphia, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

Holt Hauling and Warehousing Systems, Inc. (Holt) has appealed from an order dismissing an action in assumpsit against Aronow Roofing Company (Aronow) on grounds that the court lacked “in personam jurisdiction over [Aronow].” The action was commenced by the issuance of a summons served on Aronow by certified mail, return receipt requested, directed to Aronow’s office and principal place of business in Camden, New Jersey. Aronow is a New Jersey corporation. Holt is a Pennsylvania corporation with principal place of business in Gloucester, New Jersey. These facts are contained in a subsequently filed complaint which alleges .that Holt has been damaged by Aronow’s breach of a contract to place a new roof on Holt’s building in Gloucester, New Jersey.

Preliminary objections were filed by Aronow alleging, inter alia, that the trial court lacked jurisdiction because the agreement had been executed in New Jersey, performance was to take place in New Jersey, and the places of business of both parties were located in New Jersey. Holt’s answer to Aronow’s preliminary objections admitted these facts but countered that Aronow regularly and systematically did business in Pennsylvania and, therefore, was properly subjected to suit in Pennsylvania. See: 42 Pa.C.S. § 5301(a)(2). Aronow caused its preliminary objections to be listed for determination; and the trial court, without receiving evidence, sustained Aronow’s objections to the court’s jurisdiction and dismissed the complaint. An opinion filed pursuant to Pa.R.A.P. 1925(a) suggests that Holt failed to “meet its burden and show” that Aronow regularly and systematically did business in Pennsylvania. Hence, the order dismissing the complaint. This was error.

Where a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., 261 Pa.Super. 84, 87, 395 A.2d 954, 955 (1978) citing Monaco v. Montgomery Cab Co., 417 Pa. 135, 140, 208 A.2d 252, 255 (1965); Pa.R.C.P. 1017(b)(1). If an issue of fact is raised by the preliminary objections, “the court shall take evidence by depositions or otherwise.” Pa.R.C.P. 1028(c). In such a situation the court may not reach a determination based upon its view of the controverted facts, but must “resolve the dispute by receiving evidence thereon through interrogatories, depositions or an evidentiary hearing.” Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). Accord: Telstar Corporation v. Berman, 281 Pa.Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa.Super. 66, 68, 412 A.2d 577, 578 (1979); Lox, Stock & Bagels, Inc. v. Rotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, 257 Pa. Super. 45, 49, 390 A.2d 238, 240 (1978); Greene v. Liebergott, 235 Pa.Super. 475, 477, 344 A.2d 501, 502 (1975); Schaffer v. Batyko, 227 Pa.Super. 62, 65, 323 A.2d 62, 63-64 (1974); Luria v. Luria, 220 Pa.Super. 168, 171, 286 A.2d 922, 923 (1971). The failure of the parties to provide the evidence necessary for a proper determination of the issue does not excuse the court from further inquiry. Thus, it was incumbent on the court below to take evidence to resolve the dispute. See: Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502. Accord: Schaffer v. Batyko, supra 227 Pa.Super. at 65-66, 323 A.2d at 63-64. Luria v. Luria, supra 220 Pa.Super. at 170-171, 286 A.2d at 923-924. Moreover, it was not Holt but Aronow who, as the moving party, bore the burden of supporting its objections to the court’s jurisdiction. Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 955; Liggitt v. Liggitt, 253 Pa.Super. 126, 131, 384 A.2d 1261, 1263-1264 (1978); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 516-517, 313 A.2d 281, 284 (1973); Lewandowski v. General Telephone Company, 223 Pa.Super. 476, 480, 302 A.2d 478, 480 (1973).

The record in this case does not contain evidence from which it can be determined that Aronow was not systematically doing business in Pennsylvania as Holt has alleged. Therefore, a remand is necessary to allow the parties a reasonable period of time within which to present evidence by deposition, interrogatories or otherwise which will allow a determination of the factual issues raised by Aronow’s preliminary objections and Holt’s answer thereto. Envirosystems Corporation v. Weinhardt, supra 271 Pa. Super, at 68, 412 A.2d at 578; Lox, Stock & Bagels, Inc. v. Kotten Machine Co. of California, Inc., supra 261 Pa.Super. at 88, 395 A.2d at 956; Laffey v. Lehigh Valley Dairy Cooperative, supra 257 Pa.Super. at 49-50, 390 A.2d at 240; Greene v. Liebergott, supra 235 Pa.Super. at 477, 344 A.2d at 502; Szekely v. Abilene Flour Mills Company, 211 Pa.Super. 442, 446, 237 A.2d 242, 244 (1967).

Order vacated and record remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The majority expresses its view in fine and careful fashion but I respectfully dissent. The plaintiff corporation maintains a principal place of business in New Jersey, the defendant is a New Jersey corporation, the contract under which the dispute arose was executed in New Jersey and the work to be performed under the contract was to be performed in New Jersey.

The Philadelphia County Common Pleas Court dismissed the suit by sustaining the preliminary objections of the defendant to the jurisdiction of the Pennsylvania Courts, presumably because it concluded the forum for this litigation should be in New Jersey. I am not prepared to declare that decision was error.

The majority is quite correct that the pertinent statute confers jurisdiction of this suit upon the courts of this Commonwealth were it to be shown that the corporate defendant carries on “a continuous and systematic part of its general business within the Commonwealth.” 42 Pa.C.S. § 5301.

Since it was the plaintiff corporation which pleaded that the defendant corporation systematically did business in Pennsylvania and was, therefore, properly subjected to suit in Pennsylvania, it was, therefore, the duty of the plaintiff corporation to schedule a hearing to present such evidence as it deemed adequate to prove that allegation. The plaintiff did not do so but I do not agree that when the litigant so fails it becomes the responsibility of the court to prod a party into the presentation of evidence. When the matter was called for disposition, the posture of the record of the case was such that the court had no alternative but to dismiss the suit. For that reason, I would affirm.

      . Aronow also attempted to raise in preliminary objections the defense of the statute of limitations. A waivable statute of limitations is properly pleaded as new matter and should not be raised in preliminary objections. Stein v. Richardson, 302 Pa.Super. 124, 139, 448 A.2d 558, 566 (1982); Pa.R.C.P. 1030, 1017(b)(4).

      . 42 Pa.C.S. § 5301 provides in pertinent part as follows:
      (a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person ... and to enable such tribunals to render personal orders against such person ...:
      (2) Corporations.—
      (iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.
      (b) Scope of jurisdiction.—When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section