author: HOFFMAN, Judge:

text:
    462 A.2d 255
    COMMONWEALTH of Pennsylvania v. James Edward OWENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed June 24, 1983.

      Louis Andrew Yuhn, York, for appellant.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CERCONE, P.J., and CIRILLO, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from appellant’s convictions of simple assault, indecent assault and attempted rape. Finding appellant’s several contentions without merit, we affirm the judgments of sentence.

Appellant was arrested on August 7, 1978 and charged with attempted rape, indecent and aggravated assault, and two counts of simple assault. He pled guilty on January 22, 1979 to simple and indecent assault and the Commonwealth agreed to nolle prosse the remaining charges. On February 6, 1979, however, appellant withdrew his plea and on March 21, the case proceeded to trial on all charges. The lower court dismissed the aggravated assault charge and the jury found appellant guilty of the other charges. Post-verdict motions were denied and on May 29, 1979, appellant was sentenced to five-to-ten years for attempted rape and a consecutive one-to-two year term for the second count of simple assault. After trial counsel failed to file a timely appeal, appellant petitioned for Post Conviction Hearing Act (PCHA) relief alleging counsel’s ineffectiveness. Following a hearing, the lower court permitted present counsel to file this instant appeal.

Appellant contends that the evidence was insufficient to convict him of attempted rape. A person is guilty of committing rape if by forcible compulsion he engages in sexual intercourse with a person who is not his spouse. 18 Pa.C.S.A. § 3121. Sexual intercourse, “in addition to its ordinary meaning includes intercourse per os or per anus, with some penetration however slight.” 18 Pa.C.S.A. § 3101. A person commits criminal attempt when, “with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901. When an appellant challenges the sufficiency of the evidence supporting his conviction, we must accept as true all of the evidence upon which the finder of fact could properly have reached its verdict and give the Commonwealth the benefit of all reasonable inferences arising from that evidence. Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 454, 419 A.2d 544, 546 (1980). So viewed, the facts are as follows: On August 7, 1978, appellant and his seven-year old victim were walking through an alley to a nearby candy store when appellant struck her, causing her nose to bleed. Appellant then pushed the child into a garage at the end of the alley, held her, pulled down her pants and unzipped his own. At this point a neighbor who had seen appellant push the child down the alley, entered the garage and tried to intercede. Appellant pushed the neighbor away, struck her and left the garage with the child. The neighbor followed him to the alley, whereupon he struck her again, saying that the child was his own. Shortly thereafter the woman’s son shouted that the police were coming and appellant fled, leaving the child behind.

Appellant contends that upon finding one candy store closed, he and the child walked through the alley toward another store. He concedes that he struck both the child, out of frustration, and the neighbor who tried to help. He does however, deny that any indecent or sexual assault occurred.

“It is the exclusive province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded their testimony; Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). Furthermore, the trier of fact is free to accept all, part or none of the testimony of any witness. Commonwealth v. Oates, 448 Pa. 486, 490, 295 A.2d 337, 339 (1972). Here, the evidence indicates that appellant struck the child, forcibly led her into the garage, removed her clothing and was about to sexually assault her when a woman entered the garage and aborted the attempt. In so doing, the jury could certainly have inferred that appellant made a “substantial step toward the commission” of a rape. 18 Pa.C.S.A. § 901(a). Accordingly, we find the evidence sufficient to convict appellant of attempted rape.

Appellant contends next that he was not brought to trial within the 180 days required by Rule 1100. Specifically, he alleges that the Commonwealth’s petition to extend was not timely filed. The complaint was filed on August 7, 1978, causing the original rúndate to fall on February 5, 1979. On November 28, 1978, appellant requested and received a continuance to the January, 1979 term, beginning on January 15. On January 22, however, appellant entered a guilty plea, only to withdraw it on February 16. That same day, the lower court granted the Commonwealth’s petition to extend and appellant was tried on May 21-22, 1979. Under Rule 1100(d)(2), in effect at the time, 18 of the 48 days comprising appellant’s continuance are excluded from the time calculated. Therefore, the new rúndate was February 23, 1979. Because the Commonwealth filed its petition to extend on February 16, we find its request timely and appellant’s contention without merit.

Appellant alleges next that the lower court erred in finding the seven-year old victim competent to testify.

The competency of youthful witnesses is to be determined in the discretion of the trial judge after an inquiry as to mental capacity. For such a witness to be competent there must be (1) a capacity to communicate, including an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe and remember the occurrence, and (3) a consciousness of the duty to speak the truth.

Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959). In the instant case, the lower court explored the victim’s conception of truth, her ability to understand and answer questions and her capacity to remember events, and thereby ascertained her competence to testify. We do not find any abuse of discretion in its assessment.

Appellant asserts next that he was entitled to an adverse inference charge because one of the Commonwealth’s witnesses failed to testify. An adverse inference may be drawn when a party fails to call a particular witness within its control. Commonwealth v. Harley, 275 Pa. Superior Ct. 407, 413, 418 A.2d 1354, 1357 (1980). There are, however, exceptions to that rule:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining the unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. the witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Id. Here, the Commonwealth failed to call the neighbor’s ten-year-old son who had phoned the police. The District Attorney informed the court that the witness was available if defense counsel wanted to cross-examine, but that after interviewing him and discovering that he did not remember the incident, she felt that all “he could offer is the fact that he did call the police.” (N.T. March 22, 1979 at 96-97). Based on this offer, the lower court could reasonably have determined that the witness was available to both parties, that the Commonwealth had satisfactory reason for failing to call him and that his testimony would be unimportant and somewhat cumulative. We therefore agree with the lower court that an adverse inference charge was not necessary.

Appellant contends also that trial counsel was ineffective for failing to interview and call witnesses he had identified. Counsel will be deemed effective if “we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Trial counsel testified at the PCHA hearing that throughout the pre-trial stage appellant insisted that he did not want any witnesses called because “people did not want to get involved and ... he didn’t want to get them involved.” (N.T. May 20, 1980 at 28). Appellant cannot complain about trial strategy upon which he insisted. We agree with the lower court’s assessment that trial counsel acted reasonably and afforded appellant effective assistance on this issue.

Finally, appellant alleges that the lower court erred in failing to state its reasons for and to reconsider the sentence imposed. The lower court is required to place on the record the reasons for the sentence. Pa.R.Crim.P. 1405(b). Imposition of sentence, however, is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion or an error of law. Commonwealth v. Morrison, 265 Pa. Superior Ct. 363, 374, 401 A.2d 1348, 1354 (1979). An abuse of discretion occurs if a sentence exceeds the statutory limit or is manifestly excessive. On May 25, 1981, the lower court, forgetting that appellant had been found guilty of attempted rape, sentenced him on the assault charges. Upon realizing its mistake, the court withdrew the sentence. On May 29, after the court resentenced him to seven-and-one-half-to-fifteen years on the attempted rape charge, defense counsel informed the court that ten years was the statutory maximum for criminal attempt. The court then imposed a final sentence of five-to-ten years for attempted rape to run consecutive with a sentence of one-to-two years on one count of simple assault. At each step in appellant’s sentencing the lower court explained its reasons for imposing sentences and for vacating faulty ones. The court sentenced appellant in light of his prior record, his status as a parolee on a similar charge at the time of this offense, and the age of the victim. Accordingly, we find no abuse of the court’s sentencing discretion.

Finding no merit in appellant’s numerous contentions, we affirm the judgments of sentence.

Affirmed.

      . For sentencing purposes, the lower court merged one count of simple assault and indecent assault into the attempted rape charge.

      . Rule 1100(d)(2) as it existed in 1978 said:
      (d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;

      . Even if the original rúndate of February 5 still prevailed, it would be unreasonable to have required the Commonwealth to bring appellant to trial by that date, when he did not withdraw his plea until February 16.


source: Caselaw Access Project

license: Public Domain

text:
    462 A.2d 259
    COMMONWEALTH of Pennsylvania v. Thomas E. UNGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 28, 1983.
    Filed June 24, 1983.

      David Kostka James, III, Gettysburg, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
    Before CERCONE, P.J., and CIRILLO, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court, in vacating his original sentence and imposing a longer minimum, placed him in double jeopardy. We find this contention without merit and, accordingly, affirm.

On November 25, 1981, appellant pled guilty to criminal trespass. Sentencing was postponed to January 14, 1982, pending a pre-sentence investigation. At sentencing, the lower court imposed a sentence of six months-to-five years. After the court explained the sentence and appellant’s rights, the Commonwealth asked the court to reconsider the sentence in light of a letter written by appellant the previous July, in which he threatened the prosecuting officer. Thereafter, the court vacated its pronounced sentence, and resentenced appellant to two-and-one-half-to-five years imprisonment. Appellant filed a motion for reconsideration of sentence that was not acted upon by the court. This appeal followed.

Appellant alleges that he was twice placed in jeopardy because of the modification of sentence. We disagree. “[0]ral statements made by the judge in passing sentence, but not incorporated in the written judgment signed by him, are no part of the judgment of sentence.” Commonwealth v. Foster, 229 Pa. Superior Ct. 269, 271, 324 A.2d 538, 539 (1974). In addition, an “initial oral pronouncement of sentence ... [is] not a ‘sentence imposed’ for purposes of double jeopardy.” Commonwealth v. Hodge, 246 Pa. Superior Ct. 71, 81, 369 A.2d 815, 820 (1977). A violation of the double jeopardy clause occurs if the sentence is increased after the defendant has begun serving it. Commonwealth v. Allen, 443 Pa. 96, 104, 277 A.2d 803, 806 (1971) (emphasis added).

Here, the court orally sentenced appellant and advised him of his post-sentence rights. Immediately thereafter, the District Attorney expressed his dissatisfaction with the sentence and showed the lower court a letter written by appellant strongly threatening the prosecuting officer. The court then called appellant back to the bench, vacated the original pronouncement, and imposed the longer minimum term. Only the second sentence was entered into the record and signed by the court. Not only was the lower court’s original sentence oral, but appellant had not yet left the courtroom to begin serving his sentence.

We cannot say, therefore, that the initial sentence was actually “imposed” and, accordingly, find that the lower court’s resentencing did not place appellant in double jeopardy.

Affirmed.

      . The Commonwealth maintains that the time between the two pronouncements of sentence was less than 15 minutes.

      . Appellant’s reliance on Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A.2d 407 (1971) and Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A.2d 422 (1971), is misplaced. In Davy the defendant received a two-year suspended sentence and was placed on probation. Nine months later, after a probation violation, he was resentenced to two consecutive terms of one-to-two years. The resen-tencing was improper because the defendant had already begun serving the lesser sentence, and increasing the sentence punished him twice for the same offense. In Jackson, the court imposed a five-year probation and ordered restitution to an assault and battery victim. Some time later after new counsel informed the court that it could not order restitution in an assault case, the court vacated the original sentence, and imposed an increased sentence of eleven-and-one-half-to-twenty-three months. In Jackson and Davy, in contrast to the instant case, the defendant had already begun to serve a sentence that clearly had been "imposed” by the court.


author: CERCONE, President Judge:

text:
    462 A.2d 261
    Samuel L. LONGENECKER and Agnes L. Longenecker, His Wife, v. Richard MATWAY and Edward Matway, Appellants.
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1982.
    Filed July 1, 1983.

      George Retos, Jr., Washington, for appellants.
    Amy Marie Tonti, Washington, for appellees.
    Before CERCONE, President Judge, and WIEAND and BECK, JJ.
   CERCONE, President Judge:

Appellants, Richard Matway and Edward Matway, take this appeal from the decision of the court below construing against appellant the terms of a stipulation, entered into between appellants and appellees, Samuel L. Longenecker and his wife, Agnes L. Longenecker. Finding no error in the court’s interpretation, we affirm.

Appellants were the owners of an automobile dealership in Rostraver Township, Westmoreland County, operated under the name of Rem Ford. In connection with this business, appellants leased certain property from appellees. On April 29, 1980, appellants notified appellees of their intentions to vacate the premises. Whereupon, appellees filed a complaint and confession of judgment against appellants, in response to which appellants agreed to and did enter into a stipulation with appellees to settle the dispute. On January 30, 1981, the stipulation was approved by the court and an appropriate order was filed. Despite the stipulation, appellees subsequently petitioned the court to release escrow funds and for a judgment against appellants because it was claimed that appellants failed to comply with the terms of the stipulation. A hearing was held on this matter on April 20, 1981.

Specifically, the point at issue, and the only one which we are now asked to examine, turns on the interpretation of the term “all parts department furniture”, an element of the stipulation agreement between the parties. In relevant part, the stipulation agreement provided:

4. Upon vacation of the premises, the Plaintiffs [Ap-pellees] agree that the personal property and improvements listed on the attached December 9, 1980 letter from George Retos, Esquire to Phillip J Binotto, Jr., Esquire shall remain on the premises. Defendants [Appellants] represent to Plaintiffs that the aforesaid leasehold improvements are all in a good and working condition, and shall remain in said condition until the premises are vacated.
5. The parties agree that the term “office furniture” as set forth in the aforesaid December 9, 1980 letter shall include the following specific items:
A. A desk and two chairs in each of the three closing offices.
B. Two desks and four chairs in the main office.
. C. One desk credenza and five chairs in the General Manager’s office.
E. One desk and two chairs in the Sales Manager’s office.
F. One desk and one chair in the Parts Department’s office.
It is understood and agreed that the Defendants may remove from the premises four or five filing cabinets containing clients’ files and that the Defendants may leave in the automotive parts bins, all of the parts which they hold on consignment with Ford Motor Company. It is understood that said parts are being left at the Plaintiffs’ premises at the sole risk of the Defendants and that any and all expense associated with the removal of said parts shall be borne by the Defendants. It is understood and agreed that said parts shall be removed with sixty (60) days from the execution of the within Stipulation, (emphasis added.)

The letter of December 9,1980, incorporated by reference in the Stipulation, contains this provision: [Appellant-defendants] are willing to do the following:

2. Allow the following leaseholds and improvements to remain on the premises:
a. Three hydraulic floor hoists;
b. Nine light poles and lights;
c. Building alarm system;
d. Concrete curbs;
e. Outdoor building lights;
f. Parts department lights;
g. Service department lights;
h. Service department air lines;
i. Two air compressors;
j. Two office air conditioners;
k. All office furniture;
l. All parts department furniture;
m. Approximately $2000 worth of heating oil.
Please note that these leaseholds and improvements would not include parts, shop tools and equipment, and the office machines, (emphasis added.)

Appellants argue that the term “parts department furniture”, which is listed among the items to be turned over to appellees, should not be construed to include parts storage bins. Basically, parts storage bins are large shelves, on the order of bookshelves, used for the storage of spare automobile parts. Appellants contend that these storage bins are equipment, not furniture, and as such, under the terms of the agreement, are to be kept by appellants.

Aside from the testimony of the respective parties in which each advanced his own interpretation, the only evidence was the agreement itself. The lower court interpreted this agreement in appellee’s favor—i.e. that parts department furniture which was to be given to appellees does include the automotive parts bins. We see no reason to reverse this decision.

It is well established that the parties, by stipulation, are free to bind themselves on all matters not affecting jurisdiction and prerogatives of the court and that the court has the power to enforce stipulations. Chamberlin of Pittsburgh, Inc. v. Fort Pitt Chemical Company, 237 Pa.Superior Ct. 528, 352 A.2d 176 (1975) (allocatur denied February 23, 1976); Council of Borough of Monroeville v. Al Monzo Construction Company, 5 Pa.Cmwlth. 97, 289 A.2d 496 (1972). Generally, in the construction of stipulations, the rules for construction of contracts are applicable, with the primary rule being to ascertain and give effect to the intention of the parties. 83 C.J.S. Stipulations § 11a (1953). The court having jurisdiction of the subject matter of the litigation may specifically enforce the agreement, and its findings when confirmed by the court en banc, have the weight of a jury’s verdict and will not be disturbed on appeal. Woodbridge et ux. v. Hall, 366 Pa. 46, 76 A.2d 205 (1950).

In the instant case, the court’s conclusions are consistent with the terms of the stipulation. In one paragraph of the stipulation, the parties agreed that appellants could leave “in the automotive parts bins [ ] all of the parts which they hold____” However, it was further agreed that “said parts shall be removed within sixty (60) days from the execution of the within Stipulation.” No mention is made of the removal of the parts bins along with the removal of the automotive parts themselves, and the apparent implication is that the parts bins are to remain on the premises of the landlord. Additionally, it must be remembered that it was appellant’s counsel who authored the letter of December 9, 1980, incorporated into the stipulation, in which was listed the improvements which were to remain on the premises. Among these improvements was “[a]ll parts department furniture.” Rules of construction require that written instruments be strictly construed against the drafter thereof. Central Transportation, Inc. v. Board of Assessment Appeals of Cambria County, 490 Pa. 486, 417 A.2d 144 (1980); Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968); Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966). Accordingly, we find no error in the court’s conclusion that appellees are correct in claiming that the automotive parts bins were to be left on the premises as items of parts department furniture.

Affirmed.


text:
    462 A.2d 264
    COMMONWEALTH of Pennsylvania v. Solomon A. MURRAY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed July 1, 1983.
    Solomon A. Murray, appellant, in propria persona.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CERCONE, President Judge:

Solomon A. Murray, Jr., was convicted by a jury of murder in the first degree and was sentenced on August 12, 1976, to serve a life term of imprisonment. Counsel other than trial counsel presented his direct appeal to our Supreme Court, which affirmed per curiam on June 22, 1977. Soon after, appellant, represented by yet another attorney, filed a petition under the Post Conviction Hearing Act, in which he alleged trial counsel’s ineffectiveness in various respects and infringement of his right against self-incrimination. The lower court denied the requested relief without a hearing. The Supreme Court affirmed the lower court without reaching the merits of appellant’s contentions. That court, in an opinion by then Mr. Justice O’Brien (with Mr. Justice Pomeroy concurring in order of affirmance and Mr. Justice Roberts, Manderino and Nix dissenting) concluded that appellant’s counsel on direct appeal, in failing to allege trial counsel’s ineffectiveness, waived the issue. And, as appellant did not allege appellant counsel’s ineffectiveness for failing to do so in the PCHA petition then before the Supreme Court, appellant had preserved no cognizable issues on appeal.

Appellant then filed a second P.C.H.A. petition, by yet a fourth attorney, in which he alleged ineffectiveness of trial, appellate, and first PCHA counsel. The lower court also denied that petition without a hearing on December 7, 1981, and adopted the Answer of the Commonwealth as “completely, accurately and authoritatively disposing of all issues raised.”

The Post Conviction Hearing Act was designed to give a convicted defendant a final opportunity to vindicate his constitutional right to due process of law to the extent that questions raised had not been previously adjudicated or waived. Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976). There is no question that the issues which appellant raises have not been finally litigated or waived, since appellant has properly alleged the existence of extraordinary circumstances to justify his failure to raise the issues previously. 42 Pa.C.S.A. § 9544(b)(2).

Moreover, appellant is entitled to a hearing on his petition if it alleges facts that, if proven, would entitle him to relief. 42 Pa.C.S.A. § 9549(a). Appellant alleges seven specific instances of trial counsel’s ineffectiveness. These include (1) counsel’s refusal to present a defense; more specifically, to pursue appellant’s intoxication at the time of the incident as a way to negative the specific intent required for first degree murder; counsel also refused to call four defense witnesses, some of whom would have established the fact of appellant’s intoxication; (2) the fact that counsel refused to cross examine a majority of the Commonwealth’s witnesses; (3) counsel’s failure to object to a Commonwealth witness’s reference to appellant’s post arrest silence; (4) counsel’s failure to inform appellant of his right to assist in jury selection; (5) failure to object to certain of the Commonwealth’s hearsay evidence; (6) counsel’s introduction of hearsay which was prejudicial to appellant; and (7) counsel’s failure to impeach a particular Commonwealth witness. Appellant also alleged the ineffectiveness of all counsel subsequent to trial counsel for their failure to allege their ineffectiveness.

It is well settled that

counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.... (Emphasis in original.) Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

However,

It is only when the claim which was foregone was of arguable merit that we must make an inquiry into the basis for [post-trial counsel’s] decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).

Our review of the trial record persuades us that some of appellant’s allegations are well-founded and may constitute reversible error.

However, even if error was committed, the appellate court must examine counsel’s basis for not objecting because failure to object does not necessarily constitute ineffectiveness. Commonwealth v. Zimmerman, 264 Pa.Superior Ct. 307, 312, 399 A.2d 1064, 1067 (1979).

Because appellant has never been granted a hearing on his Post Conviction Hearing Act allegations, we reverse the order of the lower court and remand for an evidentiary hearing on appellant’s petition. Jurisdiction is relinquished.

      . 473 Pa. 317, 374 A.2d 534 (1977).

      . 42 Pa.C.S.A. § 9541, et al.

      . Ineffective counsel constitutes such “extraordinary circumstances” as will justify the failure to raise issues previously. Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).


author: CAVANAUGH, Judge:

text:
    462 A.2d 265
    COMMONWEALTH of Pennsylvania v. Ronald FULTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 10, 1982.
    Filed July 1, 1983.

      Richard H. Knox, Philadelphia, for appellant.
    Eric I.B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant Ronald Fulton was convicted, following a non-jury trial, of attempted robbery, criminal conspiracy, and possession of an instrument of crime. Post-verdict motions were denied and appellant was sentenced to one- and-one-half to five years imprisonment for attempted robbery; five years probation for conspiracy, to be served concurrently with the term of imprisonment; and five years probation for possession of an instrument of crime, to run consecutive to the term of probation imposed on the conspiracy charge. Appellant now alleges that the lower court erred in convicting and sentencing him for three separate inchoate crimes, all of which were designed to culminate in the commission of the same crime. We agree and, therefore, vacate the judgments of sentence on the conspiracy and possession charges.

The evidence presented at trial disclosed that on January 19, 1980, at 9:00 p.m., appellant entered a McDonald’s restaurant on Market Street in Philadelphia. He vaulted over the counter into the service area, pulled from his coat a small caliber handgun, pointed it at the manager, and directed the manager to come toward him. The appellant fled when the manager signaled an employee to activate an alarm. Appellant was apprehended approximately one block from the restaurant within moments of the attempted robbery.

Appellant’s conviction and sentence for attempted robbery, criminal conspiracy, and possession of an instrument of crime was clearly improper under 18 Pa.C.S.A. § 906, which states:

§ 906. Multiple convictions barred
A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973. All three of the crimes involved here are inchoate crimes under chapter nine of the crimes code and all were designed to culminate in the commission of the same crime, to wit, the robbery of the McDonald’s restaurant. The Commonwealth’s contention that the conviction for attempted robbery is really a conviction for robbery under 18 Pa.C.S.A. § 3701, and thus is not governed by § 906, is without merit. It is true that appellant was charged with robbery and that robbery, by definition, includes a threat of force made during an attempt to commit a theft, 18 Pa.C.S.A. § 3701(a)(l)(ii) and (a)(2). However, the court, in convicting appellant, stated that it found him guilty of attempted robbery. Appellant’s counsel interrupted and said, “Attempted robbery, your Honor?” and the court replied “Yes.” Furthermore, the court indicated on the information charging appellant with robbery that appellant was adjudicated guilty as to attempted robbery; and at the time of sentencing, the court clearly indicated that appellant was being sentenced on a conviction of attempted robbery. The Commonwealth at no time objected or inquired of the court as to whether the conviction was one for robbery or attempted robbery. We will not permit it to contend now that the court meant to convict appellant of robbery rather than attempted robbery.

Nor do we agree with the Commonwealth’s contention that this case is controlled by Commonwealth v. Zappacos-ta, 265 Pa.Super. 71, 401 A.2d 805 (1979), in which we refused to apply § 906 to convictions for both conspiracy and possession of instruments of crime because the conspiracy charge related to a burglary which had been completed at the time the appellant was found to be in possession of instruments of crime. Unlike the burglary in Zappacosta, the robbery of the McDonald’s in the instant case was never successfully completed. The instant case is, instead, controlled by cases in which we have applied § 906 to prevent conviction on charges of both possession of instruments of crime and attempt. See Commonwealth v. Bey, 306 Pa.Super. 288, 452 A.2d 729 (1982); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981).

It is clear that under § 906 and the current case law interpreting that statute, only one of the convictions imposed in the instant case can be permitted to stand. Commonwealth v. Bey, 306 Pa.Super. 288, 452 A.2d 729 (1982); Commonwealth v. Riquelmy, 303 Pa.Super. 403, 449 A.2d 750 (1982); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981); Commonwealth v. Martinez, 293 Pa.Super. 260, 438 A.2d 984 (1981); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). We have the option to either remand for resentencing or to amend the sentence directly. 42 Pa.C.S.A. § 706, Commonwealth v. Bey, supra; Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). We will exercise our discretion to amend the sentence directly and affirm the one and one-half to five year prison sentence imposed on the attempted robbery conviction. The judgments of sentence for conspiracy, which was to run concurrently with the prison term, and for possession of an instrument of crime, which is a lesser offense, are vacated.

Judgment of sentence for attempted robbery affirmed. Judgments of sentence for criminal conspiracy and possession of an instrument of crime vacated.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 907.

      . Although this issue was not raised at the time of sentencing or in post-verdict motions, the legality of a sentence can never be waived and the issue is, therefore, properly before us at this time. Commonwealth v. Martinez, 293 Pa.Super. 260, 438 A.2d 984 (1981); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981).

      . We disagree with the Commonwealth’s contention that there is no such crime as attempted robbery under Pennsylvania law. See, e.g., Commonwealth v. McDuffie, 499 Pa. 325, 453 A.2d 331 (1982); Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981); Commonwealth v. Thompson, 302 Pa.Super. 19, 448 A.2d 74 (1982); Commonwealth v. Garrison, 292 Pa.Super. 326, 437,A.2d 407 (1981); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Lauer, 18 D & C 3d 157 (1981).


text:
    462 A.2d 267
    William E. RIKER, Individually and as Parent and Natural Guardian of William E. Riker, Jr. and Denise K. Riker, Minors, v. Bernard V. DiGIACOMO and County of Montgomery. Appeal of Bernard V. DiGIACOMO.
    Superior Court of Pennsylvania.
    Argued March 2, 1983.
    Filed July 1, 1983.

      Bernard Y. DiGiacomo, Norristown, appellant, in propria persona.
    Margaret Mary Maguire, Norristown, for appellee.

      Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

The issue on appeal is the propriety of the trial court’s order sustaining preliminary objections and dismissing a complaint which sought to join the County of Montgomery as an additional defendant. Appellant DiGiacomo is an attorney. He was sued by William E. Riker individually and as parent and natural guardian of his minor children William E. Riker, Jr. and Denise K. Riker. Attorney DiGia-como had acted as counsel in an adoption proceeding wherein Riker’s two children had, with Riker’s consent, been adopted by his friends Joseph and Anna Mae Avery. A final decree in that matter was entered. Thereafter problems arose with respect to the Averys’ care of the children. Riker then sought to regain custody of his children and, after a hearing, was successful in having the court vacate the decree which had terminated his parental rights and enter an order restoring custody to him.

Riker’s suit against DiGiacomo claimed that the attorney had failed to properly advise him of all the ramifications of the adoption proceedings, and that as a result he had to undergo certain expenses to regain custody of his children. The complaint also sought damages for mental and psychological ills associated with the consequent experience. In a separate count, Riker, as parent and natural guardian of the children, sought damages for their emotional trauma caused by the attorney’s alleged neglect. After some further pleading, not here pertinent, DiGiacomo filed the present second amended complaint against the County of Montgomery. In it appellant complained that the County, through its Child Welfare Service, contested Riker’s attempt to have the adoption order vacated and to regain custody of the children, and that it was the agency which was responsible for removing the children from the custody of the adopting parents, and resisting return of the children to Riker. Appellant concluded by claiming that the County was liable “solely or jointly and severally liable or liable over to the defendant” for damages. The court sustained preliminary objections to this complaint on the ground that it failed to state a cause of action.

Our inquiry is guided by a liberal precept. If there exists any doubt as to whether the averments of the complaint would permit recovery if ultimately proven, the preliminary objection should not be sustained. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); King v. U.S. Steel Corporation, 432 Pa. 140, 247 A.2d 563 (1968); Eckrich v. DiNardo, 283 Pa.Super. 84, 423 A.2d 727 (1980); McClimans v. Barrett, 276 Pa.Super. 557, 419 A.2d 598 (1980); Wells v. Pittsburgh Board of Public Education, 31 Pa. Cmwlth. 1, 374 A.2d 1009 (1977). Approached from this standpoint we think the lower court too narrowly read the complaint when it found that the appellant’s allegations failed to set forth a cause of action upon which relief could be granted. The rule governing the right to join additional defendants is Pa.R.C.P. 2252(a):

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

The rule provides for joinder by a party of an additional defendant under a variety of theories including: one who may be (1) alone liable or (2) liable over to him or (3) jointly or severally liable with him on the cause of action declared by the plaintiff or (4) liable to the joining party on a cause of action arising out of the transaction(s) forming the basis of the plaintiff’s complaint. The trial court found that appellant’s complaint pleaded a series of negligent acts toward the Averys, the adopting parents, and since the Averys were not parties to the suit it did not state a cause of action as to the County and, also, that the remaining averments cited negligence as to Riker which came after the Orphans’ Court decree which terminated Riker’s parental rights. In neither instance, the court concluded, was there a breach of duty, for as to one theory it claimed negligence as to a non-party and as to the other there was no duty to Riker as a non-parent.

However, DiGiacomo’s complaint alleges that the County contested Riker’s efforts to have the adoption decree vacated and contested plaintiff’s claim to custody and control of the minor children and that this was the cause of the plaintiff’s damage. Faced with Riker’s claim that he was misled into agreeing to the original adoption we cannot say without a doubt that there is no basis for claiming that the county did not breach a duty by the claimed wrongful resistence to Riker’s attempts to restore his parental rights. While there was in fact an order terminating parental rights, appellant may be able to show at trial that the county acted unreasonably in giving rise to the circumstances wherein Riker was improperly or unduly impeded in his efforts to regain custody of his children. Moreover, Riker, now restored as the legal as well as natural parent of his two children, in a separate count in his complaint claimed damages on their behalf alleging mental and psychological injury as a result of the removal of custody from the Averys and refusal to return the children to Riker. Even if it was clear beyond a doubt that the County could have no duty to Riker because his parental rights had been terminated at the time of the relevant events, it cannot be concluded that there was no breach of duty to the two children whose claim Riker asserts in a representative capacity.

It is true that both the underlying complaint and the complaint to join the additional defendant are somewhat imprecise and vague and cover a complex series of events out of which less than routine legal relationships and consequent duties are somewhat problematically formulated. However, considering the mandated standard, and recognizing that we are reviewing a dismissal at the very threshold of the appellant’s joinder, we think that the court erred and, therefore, reverse the order granting the preliminary objections and remand the case for further consistent proceedings.

Order reversed.

Jurisdiction is relinquished.


author: WIEAND, Judge:

text:
    462 A.2d 270
    COMMONWEALTH of Pennsylvania v. Mark CASSIDY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1983.
    Filed July 1, 1983.

      Frank H. Morgan, Jr., Ardmore, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Mark Cassidy was tried by jury and convicted of third degree murder, recklessly endangering another person and criminal conspiracy in connection with the shooting death of Vincent Esposito. His post verdict motions were denied, and concurrent terms of imprisonment were imposed for third degree murder and conspiracy. In this direct appeal from the judgment of sentence, Cassidy contends: (1) that the evidence was insufficient to sustain the convictions; (2) that his confession was involuntary and should have been suppressed; (3) that the trial court erred in permitting bullets, properly received in evidence, to be taken into the jury deliberation room; and (4) that alleged hearsay testimony was improperly received. There is no merit in any of these contentions. The opinion of the learned trial judge, The Honorable Anthony J. Scirica, has ably and carefully analyzed the first three of appellant’s claims, and there is no need to add thereto or repeat his analysis here. Our discussion, therefore, is confined to appellant’s contention that extrajudicial statements were improperly received in evidence.

Appellant contends specifically that the trial court erred in allowing Commonwealth witnesses to testify about a conversation which took place on the afternoon of the shooting. The conversation, to which appellant, his co-conspirators and the witnesses were privy, centered upon the fact that the victim had been harassing one of the co-conspirators. The witnesses testified that during the course of the conversation, the alleged conspirators had spoken of taking retaliatory action against the victim. This, appellant argues, took place prior to the commencement of the alleged conspiracy and, therefore, constituted inadmissible hearsay. The trial court agreed that the evidence was hearsay but held it admissible under the exception to the hearsay rule which permits statements by one co-conspirator during the continuation of a conspiracy. Although we are unable to agree with the trial court’s reasons for receiving this evidence, it seems clear that the evidence was admissible. This Court will affirm the trial court’s decision if the result is correct on any ground, without regard to the grounds on which the trial court relied. Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981); Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980); Commonwealth v. Hinton, 269 Pa.Super. 43, 48-49, 409 A.2d 54, 57 (1979).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Darden, 311 Pa.Super. 170, 175, 457 A.2d 549, 551 (1983); Commonwealth v. Perry, 279 Pa.Super. 32, 37-38, 420 A.2d 729, 732 (1980); Commonwealth v. Rhodes, 272 Pa.Super. 546, 554, 416 A.2d 1031, 1035 (1979); Commonwealth v. Strunk, 256 Pa.Super. 213, 215, 389 A.2d 1089, 1090 (1978). When an extrajudicial statement is offered for a purpose apart from proving the truth of its contents, it is not hearsay and is not excluded under the hearsay rule. Commonwealth v. Darden, supra. See: Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980) (out-of-court statement offered to explain course of conduct is not hearsay); Commonwealth v. Perry, supra 279 Pa.Super. at 38-39, 420 A.2d at 732.

In the instant case, the out-of-court statements were not hearsay. They were not offered by the Commonwealth to prove the truth of the matters asserted, but rather as circumstantial evidence of the formation and existence of a conspiracy. “[0]ut-of-court statements of conspirators are often admitted as circumstantial evidence of their participation in a conspiracy.” Binder, The Hearsay Handbook § 5.2 (1982 Supplement). See also: United States v. Bobo, 586 F.2d 355, 371-372 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979). The statements presented by the Commonwealth in this case demonstrated the circumstances under which the participants in the shooting came together and formed a conspiracy or unlawful confederation. “It was competent for the Commonwealth to show how the various defendants became associated, and it was proper to show the background of the arrangement which resulted in this prosecution.” Commonwealth v. Berman, 119 Pa.Super. 315, 325-326, 181 A. 244, 248 (1935). See also: Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

Because testimony of the inculpatory conversation between the alleged conspirators was offered not for the truth of the matters asserted but to establish the formation of a conspiracy, it was properly received.

The judgment of sentence is affirmed.

      . The recklessly endangering conviction was held to merge in the murder conviction for sentencing purposes.

      . Michael Joseph Curry, who was present, testified as follows:
      Q. Mr. Curry, who was present during this conversation about Vinnie Esposito?
      A. Myself, Mark Cassidy, Billy Fields and Chuck Fields.
      Q. Mr. Curry, who became involved in the conversation about Vincent Esposito?
      A. We all were.
      Q. What were you talking about, about Mr. Esposito?
      A. About how he was harassing Billy so much and slicing up his tires and—
      THE COURT: Keep your voice up.
      A. (continuing) Somebody mentioned about breaking his legs and his arms, but nothing was said about killing him or anything there.
      Q. Did Mark Cassidy ever say anything to Billy Fields about Esposito?
      A. Billy came along and said that he wished somebody would take care of him, and Mark volunteered.
      Q. Can you explain how that took place, what was done?
      A. Well, Billy—we were all talking about it and Billy said, "I wish somebody would take care of him.” Mark volunteered himself.
      Q. What did he say?

        A. That he would do it for him, he would take care of him for him. N.T. pp. 161, 163, 164.
      Barry Fields testified as follows:
      Q. Mr. Fields, when the subject of Vincent Esposito was brought up, who was present?
      A. William Fields, Mark Cassidy, Mike Curry, Charles Fields and myself.
      Q. Were any other members of your family present?
      A. My kids were in the yard, but they didn’t hear anything.
      Q. Where did the conversation take place? Where were these individuals, physically?
      A. We were sitting at the picnic table in my yard, on the right side.
      Q. Did you remain present during the whole time that these individuals were seated together?
      A. No.
      Q. What were you doing?
      A. I was in and out of the house, after a couple of beers, or the phone rang a couple of times.
      Q. While you were in the company of those four individuals, was the name Vincent Esposito brought up?
      A. Yes.
      Q. Who brought up the name?
      A. William Fields?
      Q. Now, how was the name Vincent Esposito brought up by your brother, William?
      A. He said that the guy had cut up—
      MR. MORGAN: Objection.
      THE COURT: The objection is overruled.
      BY MR. RYAN:
      Q. Go ahead, please.
      A. He said that the guy had cut up some more of his tires the night before.
      THE COURT: Excuse me, by "the guy”—
      THE WITNESS: Vincent Esposito had cut his tires.
      BY MR. RYAN:
      Q. Did anyone else become involved in this conversation about Vincent Esposito?
      A. Yeah. I said to my brother Billy, I said, "Why don’t you just break the guy’s legs,” because this had gone on for, I don’t know, six months, eight months. I really got tired of hearing it. Because, you know, Carol came to the house, to my house with Billy, and she would call her husband [Vincent Esposito], set up meetings to meet him, and she would take Billy. They were constantly fighting each other.
      Q. This particular day, did the other three individuals who were present, take part in this conversation concerning Vincent Esposito?
      A. Yes. Charles said, "Why don’t you break his arms, too?”
      Q. Who was present when this took place?
      A. The five of us.
      N.T. pp. 117-119.


text:
    462 A.2d 272
    COMMONWEALTH of Pennsylvania v. Robert M. TAVIANINI, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 2, 1983.
    Filed July 1, 1983.

      Leonard N. Zito, Bangor, for appellant.
    John F. Spirk, Jr., Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

Robert M. Tavianini was convicted of operating a motor vehicle at a speed of 95 miles per hour in violation of the 55 miles per hour speed limit established by the Vehicle Code, 75 Pa.C.S. § 3362(a)(2). After a post trial motion in arrest of judgment had been denied, Tavianini appealed to this Court contending that the district justice had violated Pa.R. Crim.P. 55-2(a) by failing to hold a trial within ten days after the entry of Tavianini’s plea of not guilty. We affirm the judgment of sentence.

Pa.R.Crim.P. 55 is applicable to trials in summary cases following commencement of the action by issuing a citation. It provides as follows:

The issuing authority, upon receiving a plea of not guilty, shall:
1. Make note thereof upon the docket and fix a time certain for trial.
2. Notify the defendant and the police officer of the day and hour fixed for the trial as follows:
(a) If the defendant appears personally, the issuing authority shall set security and fix the day and hour for trial which shall be not less than three nor more than ten days after his appearance, unless extended for cause shown, or unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the police officer.
(b) If the defendant enters his plea by mail, he shall be notified of the day and hour fixed for his trial by certified mail, return receipt requested. The date set shall be not less than twenty days from mailing of said notice of trial, unless the issuing authority fixes an earlier date upon request of the defendant or his attorney, with the consent of the police officer.
(c) Advise the defendant that if he fails to appear for trial, he shall be deemed to have consented to a trial in his absence, and if he is found guilty, the security which he has posted shall be forfeited. (Emphasis added.)

Following the issuance of a citation in the instant case, appellant appeared before the issuing authority on July 7, 1981. On that day, he entered a plea of not guilty, and the district justice fixed July 24, 1981 as the date for trial. The record does not disclose the reason, if any, for the district justice’s inability to schedule the trial within ten days. The record also does not disclose that appellant objected to a trial date seventeen days after the entry of his plea. At the time of trial before the district justice, however, he moved to dismiss the action because of an alleged violation of Pa.R.Crim.P. 55-2(a). His motion was denied by the district justice who, after hearing the evidence, found appellant guilty. The alleged untimeliness of the trial was preserved in an appeal to the Court of Common Pleas of Northampton County and in a post trial motion in arrest of judgment after appellant had been adjudged guilty following trial de novo.

Pa.R.Crim.P. 55, unlike Pa.R.Crim.P. 1100, does not provide for dismissal or for any other specific remedy if a trial is not held by the issuing authority within the time allowed. In this respect, Rule 55 is like Pa.R.Crim.P. 57(b)(l)(i) which regulates summary proceedings following the issuance of a summons and which requires a trial in not less than three nor more than ten days after a defendant has appeared and entered a plea of not guilty.

In Commonwealth v. Brogan, 270 Pa.Super. 197, 411 A.2d 248 (1979), where trial had not been held in compliance with Pa.R.Crim.P. 57(b)(l)(i), this Court held that discharge of the defendant was not an appropriate remedy “absent a showing of prejudice.” The decision in Brogan is controlling of the instant appeal. See also and compare: Commonwealth v. DeCosey, 246 Pa.Super. 412, 371 A.2d 905 (1977). Although the date fixed for appellant’s trial before the district justice was seventeen days after his appearance to enter a plea of not guilty, the delay was not so egregious as to compel appellant’s discharge absent a showing of prejudice. Appellant has not demonstrated that he has been prejudiced in any manner. He was not incarcerated during the delay, was not hampered in gathering evidence and, in fact, did not object to the trial date set by the district justice until he appeared on that date ready to proceed to trial. Under these circumstances, the trial court correctly held that substantial compliance with Rule 55 had been achieved and that appellant’s discharge was not warranted.

Judgment of sentence affirmed.

      . A petition for allowance of an appeal to the Supreme Court was denied on December 28, 1979.


author: JOHNSON, Judge:

text:
    462 A.2d 274
    GENESIS LEASING COMPANY, INC. v. Philip L. MINCHOFF and Violet Minchoff, Jointly and Individually and t/a Minchoff's Sanitation, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed July 1, 1983.

      William R. Mosolino, Orwigsburg, for appellants.
    Frank A. Baker, III, Allentown, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from an order granting summary judgment in favor of appellee, Genesis Leasing Co., Inc. (Genesis), against appellants, Philip L. Minchoff and Violet Minchoff (Minchoffs), owners of Minchoffs Sanitation. We reverse.

On May 31, 1978 and June 26, 1978, Genesis and the Minchoffs entered into leases whereby the Minchoffs secured the use of two sanitation trucks for their business. The leases on each truck provided that the Minchoffs would make regular monthly payments of $1,053.40 and taxes, and $1,035.00 and taxes. Neither lease specified a lease period, rather they provided that either Genesis or the Minchoffs could terminate the leases upon appropriate written notice. The leases stated that the title to both trucks remained with Genesis, not the Minchoffs. They further provided that the Minchoffs bore all costs of maintenance, repair and insurance. The leases also provided that upon termination, for any reason, that the trucks were to be sold and the proceeds of sale to be added to the Minchoffs reserve on the vehicles. If the reserve exceeded the original cost of the vehicle to Genesis, then the Minchoffs were entitled to a refund of the excess. If there was a deficiency, the Minchoffs had to make up the deficiency.

On September 26, 1980, Genesis filed a complaint in assumpsit alleging that the Minchoffs had ceased making the payments required by the leases. Genesis sought $80,-888.18 in damages plus interest.

The Minchoffs filed an answer admitting that they had executed the leases with Genesis. However, they denied any liability to Genesis. In their answer, they incorporated by reference, a second complaint they had filed against Merkin Body and Hoist Co. (Merkin). This second complaint alleged that the Minchoffs had purchased the sanitation trucks from Merkin, and that the trucks were not merchantable or fit for the particular purpose for which they were purchased. Additional averments in this second complaint asserted that Genesis financed the purchases with two leases. In New Matter, the Minchoffs averred that they had purchased the trucks from Merkin, and again incorporated by reference the second complaint.

In its reply to New Matter, Genesis denied that the Minchoffs purchased the trucks from Merkin, and averred that it had purchased the trucks from Merkin and leased them to the Minchoffs.

On February 6, 1981, Genesis filed a motion for summary judgment, supported by affidavit as to the damages due. The Minchoffs answered the motion expressly raising the Motor Vehicle Sales Finance Act (MVSFA) as a defense. The trial judge, without discussion, found the MVSFA to be inapplicable. By order dated September 14, 1981, the trial judge granted Genesis’ motion for summary judgment. This appeal followed.

The scope of our review of an order granting summary judgment pursuant to Pa.R.Civ.P. 1035 has been summarized in Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 421 A.2d 747 (1980) as follows:

Pennsylvania Rule of Civil Procedure 1035 provides that summary judgment is to be entered only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”... The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether this burden has been satisfied, the court must examine the record in the light most favorable to the non-moving party.... The court is not to resolve any genuine issue of material fact; its sole responsibility is to determine whether such an issue exists. Moreover, the court should enter summary judgment only when the case is clear and free from doubt....

Id., 280 Pa.Superior at 334, 421 A.2d at 749-750 (citations omitted).

Genesis argues that it is entitled to judgment as a matter of law for two reasons. First it asserts that the Minchoffs failed to raise the MVSFA as a defense in its answer. Second, it argues that the MVSFA applies only to consumers, i.e., private individuals who purchase a motor vehicle for use for personal, family, or household purposes. We disagree.

The Minchoffs in their New Matter averred that they purchased the two sanitation trucks from Merkin. In further answer, they incorporated by reference pursuant to Pa.R.Civ.P. 1019(g) a second complaint in assumpsit against Merkin as New Matter. The second complaint contained short and concise statements of the material facts underlying the breach of warranty defense they assert against Genesis. Furthermore, the Minchoffs were not required to specifically plead the provisions of the MVSFA. See Godina v. Oswald, 206 Pa.Super. 51, 211 A.2d 91 (1965). See also 2 Goodrich Amram 2d § 1019(a):9. The averments incorporated by reference from the second complaint, if proven, may support the application of the MVSFA.

Regarding Genesis’ second argument, we find ample indication that the legislature did not limit the scope of the MVSFA to individuals who purchase motor vehicles for personal, family or household use.

When interpreting a statute, the court must ascertain and effectuate the intent of the legislature. 1 Pa.C.S.A. § 1921(a). In determining that intent, every provision of the statute must be given effect. Id. When the words of a statute are clear, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. Id. § 1921(b).

Genesis argues that the MVSFA was not intended to apply to motor vehicles purchased by business entities for use in their commercial ventures. It relies upon the Declaration of Policy in the Act which uses the word “consumer.” 69 P.S. § 602. However, the MVSFA has a definition section. That section does not define the word “consumer,” leading us to believe that it is not an integral part of the legislative scheme. The term “installment buyer” or “buyer” is defined therein. The court finds the definitions of these terms to be a clearer indication of whom the provisions of MVSFA were intended to benefit. The MVSFA defines the term “installment buyer” or “buyer” as: “the person who buys, hires, or leases a motor vehicle under any installment sales contract____” Id. § 603(3). The word person is defined as including “an individual, partnership, association, business corporation... or any other group of individuals however organized.” Id. § 603(2). We note additionally that we have not found any indication in the act that its applicability is subject to limitation by the particular purpose for which the motor vehicle is used. It is clear from the broad definition of “installment buyer” and “person” that the MVSFA applies when a business entity purchases a motor vehicle under an installment sales contract for its business use.

The remaining consideration in determining whether the MVSFA is applicable to the instant case is whether the transaction between the Minchoffs and Genesis constituted a sale of the sanitation trucks or whether the parties intended a mere lease arrangement. The MVSFA was intended to correct abuses in installment sales under “fictional instruments” in the form of bailment leases. M.M. Waterbor, Inc. v. Livingood, 179 Pa.Super. 610, 117 A.2d 790 (1955). Should it be determined that the transaction between Genesis and the Minchoffs constituted a mere lease arrangement, then, of course the provisions of the MVSFA, which regulate the installment sale of motor vehicles, are not applicable to this case. Id.

In M.M. Waterbor v. Livingood, supra, we analyzed this issue in a context similar to that presented instantly. In Waterbor, the lessor, a member of the Hertz system of car rental organizations, rented passenger automobiles and trucks to approved applicants. It also bought automobiles to the applicant’s specifications and rented them. The lessor purchased an Oldsmobile to the lessee’s specifications and rented it to him. Under the lease, the Oldsmobile was rented to the lessee for an indeterminate period of time. The lease also permitted the lessee the option to purchase the Oldsmobile. The lessor brought an action to recover damages under the lease. The lessee defended on the grounds that the lease was unenforceable under the MVSFA. After examining the transaction, this court concluded that the lease was not a fictional instrument used to effect an installment sale of the Oldsmobile. The court stated further that the lease would become an agreement of sale only if the lessee had elected to purchase the Oldsmobile.

In the instant case, neither party filed affidavits or other supporting documents detailing facts that indicate the nature of the transaction between them. All that is before us is the bare lease and the Minchoffs’ bare allegations that the transaction was a sale. Genesis, as the party moving for summary judgment, has the burden of showing that it is entitled to judgment as a matter of law and that no genuine issues of material fact exist. To do this, Genesis had to submit affidavits or other evidence in support of its motion, in order to dispel, at least preliminarily, the existence of any genuine factual issues. Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). Absent further factual development of the nature of the transaction, we cannot say that this case is clear and free from doubt, warranting the entry of summary judgment.

Accordingly, we reverse the order of September 14, 1981 from which an appeal was taken at No. 2669 Philadelphia, 1981. The appeal at No. 2997 Philadelphia, 1981 is dismissed as being moot.

POPOVICH, J., concurs in the result.

      . The trial court granted summary judgment by order dated September 14, 1981. The Minchoffs filed exceptions on September 24, 1981, and filed notice of appeal to Superior Court on October 14, 1981 from the entry of summary judgment. Genesis praeciped for entry of judgment on October 23, 1981, and the Minchoffs filed a second notice of appeal from the entry of judgment. These circumstances resulted in this appeal receiving two Superior Court docket numbers, which were consolidated for disposition on appeal.

      . Act of June 28, 1947, P.L. 1110 No. 476, as amended, 69 P.S. § 601 et seq.

      . Rule 1019(g) states in pertinent part that: "A party may incorporate by reference any matter of record in any State ... court of record whose records are within the county in which the action is pending ____” Both complaints discussed above in the text were filed in Schuylkill County. The incorporation by reference was therefore proper under the rules.

      . Statutory Construction Act of 1972, P.L. 1339, No. 290, § 3.

      . Compare Smith v. Gold et al., 4 Pa.D. & C.2d 745 (C.P.Phila.1955) (where the court concluded that the parties intended a sale).


author: POPOVICH, Judge:

text:
    462 A.2d 278
    COMMONWEALTH of Pennsylvania v. Lawrence BOLDING, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed July 1, 1983.

      Louis Sherman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

We affirm the Order of the Court of Common Pleas of Philadelphia County denying appellant’s, Lawrence Bold-ing’s, Post-Conviction Hearing Act (PCHA) Petition. 19 P.S. §§ 1180-1 et seq., as amended; reenacted as 42 Pa.C. S.A. §§ 9541-9551.

On appeal, appellant asserts, in essence, that his plea of guilty to kidnapping, conspiracy and theft by extortion was invalid, and, therefore, subject to being withdrawn for failure to comply with the mandates of Pa.R.Crim.P. 319(a) and Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Additionally, appellant, by way of analogy to the 180-day time requirement applicable to Rule 1100 cases, argues that the PCHA'court’s failure to hold a hearing on his PCHA petition within 180 days—it was held 195 days after it was filed—justifies a “dismissal” of the charges or his “release” from custody since the delay was not attributable to the defense and counsel for appellant strenuously objected to the delay. (Appellant’s Brief at 9)

Our review of the guilty plea colloquy indicates that the accused was informed of the following:

1) the elements of the offenses. (RR. 13)
2) the permissible range of sentence for each offense. (RR. 14)
3) the right to a jury trial. Id.
4) the plea had to be made of one’s own free will, absent any threats, and without the inducement of any promises to be valid. (RR. 16)
5) by pleading guilty, appellant gave up his right to have the Commonwealth establish his guilt beyond a reasonable doubt. (RR. 15 & 18)
6) by pleading guilty, appellant gave up his right to confront his accusers. (RR. 16)
7) by pleading guilty, appellant would automatically be in violation of his parole, the consequences of which he would have to take up separately with the Parole Board in contradistinction to the sentence entered instantly. (RR. 17 & 18)
8) the grounds for which an appeal from the plea of guilty could be taken. (RR. 17)
9) the factual basis for the plea. (RR. 19-23)

Furthermore, at the time set for sentencing, appellant acknowledged awareness that he need not have taken the stand in his own defense, and that his presumption of innocence had dissipated with the entry of the guilty plea. (N.T. 3/15/76 at 5 & 6) Also, prior to the conclusion of the sentencing proceeding, appellant’s own counsel informed him of the right to appeal, the time period within which such an action had to be taken and the right to the assist-anee of counsel to perfect the appeal. Appellant stated he understood such rights. Id. at 19. Nonetheless, no appeal was filed.

It was not until three years had elapsed, August 16, 1979, that appellant filed a pro se PCHA petition. The sole block checked off in the “relief” section of the petition was the one that appeared next to the statement: “A plea of guilty unlawfully induced[.]” (Appellant’s PCHA petition at 2) At appellant’s request, (private) counsel was appointed and an amended PCHA petition was submitted. Allegations and factual accountings were made therein that are almost identical to those appearing in appellant’s appellate brief. However, conspicuously missing from all of the appellant’s supportive evidence respecting the withdrawal of his plea is the claim linking the entry of the alleged defective plea with an ineffectiveness of counsel assertion. See Commonwealth v. Miller, 495 Pa. 177, 433 A.2d 1 (1981); Commonwealth v. Dimitris, 484 Pa. 153, 398 A.2d 990 (1979); Commonwealth v. Maute, 263 Pa.Super. 220, 397 A.2d 826 (1979).

In fact, at the PCHA hearing, appellant admitted that when he answered “Yes” to the question of whether the plea he was entering was “of [his] own free will,” it was true. (PCHA Hearing Tr. p. 19) Further, after the plea was entered, appellant testified that he never communicated to his counsel that he “didn’t want to go through with the guilty plea[.]” Id. at 21-22. However, appellant testified that the affirmative answers he gave at the sentencing proceeding, which, in effect, supplemented what transpired at the plea proceeding, concerning his “understanding” of the “presumption of innocence,” “right to remain silent” and “right to present a defense” were not true. Id. at 28-30. Notwithstanding such averments, appellant, after being advised of his right to appeal with the assistance of counsel and the time frame within which such an action had to be taken (N.T. 3/15/76 at 19), failed to contact his attorney to perfect an appeal. See, e.g., Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981). This was confirmed by guilty plea counsel. (PCHA Hearing Tr. p. 43)

Next, we observe that a letter, written by the appellant and dated 3 days after the plea was entered, was read into the PCHA hearing record and contained the following:

I submit this letter to you [—Attorney Donald Moser, appellant’s guilty plea counsel—] for three purposes. Number one, to thank you for your fine representation at my trial. I believe you delivered and fought my case to the best of your ability. Sorry to say we couldn’t have met under more pleasant circumstances. Nevertheless, thank you. Id. at 36.

Moreover, appellant also testified that he was “satisfied with the representation that Mr. Moser had given [him] even after the plea of guilty and the sentencing[.]” Id. at 34. In other words, appellant had no intentions of withdrawing his plea or taking an appeal, for, as he put it, “After talking to Mr. Moser [following sentencing,] I assumed it was the best of two evils. It could have been worse. I looked at it like that.” Id. at 38.

Before deciding if appellant’s claim attendant to his requesting withdrawal of his guilty plea has merit, logically, we need to determine whether the petitioner has waived his claim. Commonwealth v. Porta, 297 Pa.Super. 298, 301, 443 A.2d 845, 847 (1982), petition for allowance of appeal denied September 1, 1982. In accordance with the dictates of Porta, we see that Section 4 of the PCHA provides in pertinent part: “(b) For the purposes of this act, an issue is waived if: (1) The petitioner knowingly and understanding^ failed to raise it and it could have been raised ... on appeal ____(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.” 19 P.S. § 1180-4(b)(l) & (c) (Supp. 1978-79); see Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972) (Section 4 presumption is constitutional).

This Court, in Commonwealth v. Flynn, 295 Pa. Super. 513, 442 A.2d 256 (1982), was addressing a similar question and responded in a fashion that is relevant here; namely:

Instantly, such presumption has not been rebutted since there has been no proof that appellant’s withdrawal of his appeal was anything but a ‘knowing and understanding’ one. Commonwealth v. Via, [445 Pa. 373, 316 A.2d 895 (1974) ]. Furthermore, where, as here, appellant has been represented by private counsel every step of the appeal process, in the absence of proof of extraordinary circumstances, see Section 4(b)(2), such a waiver is considered binding. See Commonwealth v. Sheid, [443 Pa. 82, 278 A.2d 160 (1971)]; Commonwealth v. Johnson, 433 Pa. 582, 252 A.2d 641 (1969).

Id., 295 Pa.Superior at 520, 442 A.2d at 260. Although instantly Lawrence Bolding took no appeal, whereas in Flynn the accused withdraw his appeal, the principles just cited apply with equal force to both situations. See Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979); Commonwealth v. Dimitris, supra; Commonwealth v. Hankins, 261 Pa.Super. 264, 396 A.2d 389 (1978). Appellant, represented by counsel other than guilty plea counsel throughout the post-guilty plea process, has failed to rebut the presumption of a knowing and intelligent waiver of his right to appeal on any basis, let alone on an allegation of “extraordinary circumstances.” Commonwealth v. Newell, supra; Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); see also Commonwealth v. Flynn, supra; Commonwealth v. Hankins, supra; Commonwealth v. Porter, 256 Pa.Super. 163, 389 A.2d 651 (1978) (even where a petitioner alleges facts that, if proven, would entitle him to relief, the petition may still be dismissed if the issue could have been raised previously and the petitioner does not allege extraordinary circumstances justifying his failure to do so) and compare with Commonwealth v. Lowry, 260 Pa.Super. 454, 394 A.2d 1015 (1978). Accordingly, we need not enmesh ourselves in an examination of appellant’s protestations since we find such complaints waived. See Commonwealth v. Ray, supra; Commonwealth v. Hankins, supra; Commonwealth v. Porter, supra.

Order affirmed.

      . Even if, for the sake of argument, we were to find no waiver, the colloquy conducted at the guilty plea hearing satisfies us that appellant entered a knowing, intelligent and voluntary plea. Cf. Commonwealth v. Anthony, 307 Pa.Super. 312, 321 & 322, 453 A.2d 600, 604 & 605 (1982) ("It would approach absurdity for us to here rule that the failure of the trial judge to advise [appellant] of the need for jury verdict unanimity rendered the colloquy inadequate, defective and void____ Appellant does not indeed, could not-argue that he would not have pleaded guilty had he known a jury verdict was required to be unanimous. There is not even a suggestion or a hint of prejudice and we cannot, therefore, rule the colloquy defective.”), allocatur granted May 13, 1983 [No. 49 Eastern District Appeal Docket 1983]. As for appellant’s contention that the court’s failure to conduct a hearing on his PCHA petition within 180 days after it was filed justifies his discharge, we note, as is the case in dealing with Rule 1100 claims, appellant needs to show how "he was prejudiced by the court’s action.” Commonwealth v. Fairley, 298 Pa.Super. 236, 242, 444 A.2d 748, 751 (1982); Commonwealth v. Walls, 303 Pa.Super. 284, 290 n. 13, 449 A.2d 690, 693 n. 13 (1982). Appellant has failed to do so here. Thus, he is entitled to no relief. Cf. Commonwealth v. Sweitzer, 261 Pa.Super. 183, 187 n. 2, 395 A.2d 1376, 1378 n. 2 (1978) ("Appellant also contends that he was denied due process because the post-conviction hearing court took one year to dispose of his petition after the hearing---- In this appeal, counsel for appellant cites no cases for this claim, and we find no merit in it.”).


author: PER CURIAM:

text:
    462 A.2d 281
    In re ADOPTION of J.J.A., III and D.A.A. Appeal of J.J.A., Jr.
    Superior Court of Pennsylvania.
    Submitted May 6, 1981.
    Filed July 1, 1983.

      James W. Wilson, Philadelphia, for appellant.
    Mr. & Mrs. James Hoffman, participating parties, in propria persona.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   PER CURIAM:

Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983) requires that this case be remanded for reconsideration under the clear and convincing evidence standard.

Order vacated, and case remanded. Jurisdiction is not retained.


text:
    462 A.2d 281
    Leland E. SMITH, Appellant, v. CROWDER JR. COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1982.
    Filed July 1, 1983.

      Harry A. Dower, Allentown, for .appellant.
    James Bernard Martin, Allentown, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   PER CURIAM:

This case is before the Court on the appeal of Leland E. Smith from an order of the trial court dismissing his petition for the appointment of appraisers to value the shares of stock that he owns in Crowder Jr. Company, appellee. The Honorable Donald E. Wieand, now a Judge, of this Court, determined, after a hearing, that appellant was not entitled to relief as a “dissenting shareholder” under § 515 of the Business Corporation Law (BCL), 15 P.S. § 1515. On appeal, appellant argues that the “ultimate issue ... is whether or not [he] is entitled to the rights and remedies of a dissenting shareholder under the” BCL. After careful review of the record and briefs and consideration of the oral arguments presented on behalf of the parties, we agree with Judge Wieand and adopt the opinion filed by him in the trial court.

Leland E. Smith has filed a petition alleging that he is a dissenting shareholder and entitled to the appointment of appraisers to determine the value of the shares of stock which he owns in Crowder Jr. Company. We conclude, after hearing, that he is not a dissenting shareholder under Section 515 of the Business Corporation Law, 15 P.S. § 1515, and that, in any event, his petition is not timely filed. Therefore, we must deny the requested relief.

Crowder Jr. Company, hereinafter “Crowder,” was incorporated under the laws of the State of Delaware on January 10, 1920. On or about September 18, 1967, petitioner purchased 540 shares of the corporation’s stock from a third person. He was elected to the Board of Directors on April 22, 1968. On December 16, 1970, the Board unanimously adopted a resolution to domesticate the corporation in Pennsylvania, effective the beginning of 1971, and to dissolve the corporation in Delaware, effective the end of 1970. The resolution also provided that the Pennsylvania corporation should have the same powers as the Delaware corporation. Smith not only voted in favor of the resolution but he, together with his fellow directors and stockholders, consented in writing to the resolution.

At the time of adopting the resolution, the matter of cumulative voting was not specifically discussed. Smith, however, was an experienced stockbroker and knew that under applicable provisions of law in Delaware, the corporation did not enjoy the right of cumulative voting. In the articles of domestication in Pennsylvania a specific provision was inserted which negated cumulative voting. This was made necessary because, under Section 505 of the Business Corporation Law as amended and in effect at the time of domestication, shareholders enjoyed the right of cumulative voting in the election of directors unless contrary provisions were included in the articles of incorporation. See: Act of July 20, 1968, P.L. 459, No. 216, § 28, 15 P.S. § 1501. The domesticated corporation was intended to retain the same noncumulative voting which had existed in the prior Delaware corporation.

Following domestication of the corporation, Smith was elected annually to the office of director until 1979. In those years, directors were elected by a process wherein each shareholder cast one vote for each share of stock. Only five persons were nominated to fill the five seats on the Board, however, and cumulative voting was not a matter of dispute. At the annual meeting of April 23, 1979, Smith failed of election to the Board. Thereafter, on May 14,1979, he made a demand for payment of the fair value of his shares, contending that he was a dissenting shareholder because of his disagreement with the provision in the articles of domestication which denied him the right to cumula-te his votes. When agreement concerning the fair value of Smith’s shares was not forthcoming, a petition for the appointment of appraisers was filed.

The Business Corporation Law, in Section 810, 15 P.S. § 1810, provides in part:

“If any amendment to the articles shall ... eliminate cumulative voting for directors of a business corporation, the holder of any outstanding shares the ... cumulative voting rights of which are so cancelled, affected or eliminated, who shall object to such amendment and comply with section 515 of this act, shall be entitled to the rights and remedies of dissenting shareholders therein provided.”

Section 515 of the Business Corporation Law, 15 P.S. § 1515, establishes a procedure to protect the rights of dissenting shareholders. By way of summary, it requires the dissenting shareholder to vote against the amendment of the articles and to make a written demand for the value of his shares within twenty (20) days after the date of the vote approving such amendment. If agreement as to the value of his shares is not reached, a dissenting shareholder may demand proceedings to value his shares at any time “after sixty days and within ninety days after the date” on which the amendment became effective.

In the instant case, the petition is defective for several reasons. In the first place, petitioner consented in writing to the domestication of the corporation in Pennsylvania with full awareness that it was to have the same powers as it had had in Delaware. He neither voiced disagreement with the articles of domestication nor gave written notice of dissent to them or to the clause precluding cumulative voting. Moreover, it is difficult to perceive how the articles of domestication can be considered an “amendment” eliminating cumulative voting. The corporation never in its existence in Delaware enjoyed cumulative voting, and the clause in question was essential to continue noncumulative voting under different provisions of the Pennsylvania Business Corporation Law. Thus, there was no “amendment” eliminating cumulative voting, but merely a provision by which the corporation continued, as in the past, without a right of cumulative voting.

The articles of domestication became effective on January 1, 1971. A written objection to the absence of cumulative voting and a demand for the fair value of petitioner’s shares, made for the first time in 1979, were too late. The petition, therefore, was untimely and must also be rejected for this reason.

In reaching these conclusions we have rejected petitioner’s testimony that he was not aware that the articles of domestication denied to him the right to cumulate his votes and believed subjectively, despite his consent to the domestication of the corporation with the same powers it had had in Delaware, that he acquired cumulative voting rights after domestication. He conceded that he had been familiar with the laws of Delaware and Pennsylvania as they pertained to cumulative voting, knew that the Delaware corporation did not enjoy cumulative voting, and consented to a plan of domestication that would enable the Pennsylvania corporation to have the same powers as the Delaware corporation. In addition, he conceded specifically that he had seen and examined the clause of the articles which precluded cumulative voting at least two or three years before filing the instant petition but did not dissent or make claim for the value of his shares. Not only did he not dissent, but he continued to vote his shares of stock noncu-mulatively and remained on the Board of Directors until April 23, 1979. It was not until that date, after petitioner had been defeated in his bid for re-election to the Board, that he gave written notice of dissent. These are not circumstances recommending relief under Section 515.

We have also rejected petitioner’s argument that somehow his rights were enlarged because of a hiatus which occurred when the Delaware corporation was dissolved on December 22, 1970, nine days before domestication in Pennsylvania. If a corporation was newly organized in Pennsylvania on December 31, 1970, petitioner could have acquired no rights as a dissenting shareholder.

These rights accrue only upon “amendment” of the articles to eliminate cumulative voting. There is no comparable right needed in the case of a newly organized corporation whose articles contain an express provision that its shareholders shall not enjoy the right to cumulative their votes.

Our conclusion is consistent with, although not necessarily controlled by, Section 505(B) of the Business Corporation Law, as amended by the Act of July 20, 1968, 15 P.S. § 1505(B), which provides:

“The shareholders of a business corporation not incorporated hereunder, the shareholders of which were not entitled to cumulate their votes for the election of directors at the date the corporation became or becomes subject to the provisions of this act, shall be entitled so to cumulate their votes only if and to the extent its articles so provide.”

(Footnote omitted.)

Appellant also argues, on appeal, that the trial court erred in dismissing his claim for “untimeliness” because appellee had never pleaded the defenses of Laches or the statute of limitations. Since appellant is not a “dissenting shareholder” under § 810 of the BCL, this argument is moot. Such an argument, moreover, is based on a misconception of Judge Wieand’s statement “that, in any event, [appellants] petition is not timely filed.” This conclusion is an alternative holding that even if appellant were a “dissenting shareholder” he was not entitled to relief because he failed to comply with the procedural time requirements contained in § 515 of the BCL. While we also agree with this determination, we prefer to base our order on the ground that appellant is not a “dissenting shareholder.”

Order affirmed.


text:
    462 A.2d 284
    In re ADOPTION OF N.N.C. Appeal of S.C. In re ADOPTION OF S.R.C. Appeal of S.C.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1982.
    Filed July 1, 1983.

      Daniel Lee Haller, Aliquippa, for appellant.
    Robert J. Masters, Beaver Falls, for participating party.
    Before HESTER, BECK and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from a July 28, 1980 Order terminating appellant’s parental rights pursuant to section 311(1) of The Adoption Act of 1970. P.S. § 311(1).' Section 311(1) provides that parental rights may be terminated if “[t]he parent by conduct continuing for a period of at least six months ... has refused or failed to perform parental duties.”

A recent opinion of the United States Supreme Court, Santosky v. Kramer, Commissioner, Ulster County Dept. of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), raised the burden of proof in involuntary termination of parental rights cases from a “preponderance of the evidence” standard to one of “clear and convincing evidence,” and a unanimous en banc opinion of this Court, In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983), recently held “that the higher burden of proof required by Santosky must be applied to all cases which had not been finally decided on appeal at the time the Santosky opinion was filed, and that cases pending on appeal at the time Santosky was filed must be remanded to the trial court for further proceedings.” At, 313 Pa.Superior 316, 459 A.2d 1247.

The M.E.T. Court clearly specified the procedure to be followed by the lower court upon remand:

We do not ... feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by the Appeals Court of Massachusetts in Custody of A Minor (No. 1), 13 Mass.App. 1088, 436 N.E.2d 172, app. den., 368 Mass. 1105, 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court that it determine, after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary. We feel that this procedure adequately protects the parents’ right to ensure that findings of parental unfitness are made on the basis of clear and convincing evidence.11

At, 313 Pa.Superior 316, 459 A.2d 1247.

Accordingly, we vacate the Order of July 28, 1980 and remand for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of July 24, 1970, P.L. 629, No. 208, Art. 111, 311(1). Section 311(1) of The Adoption Act of 1970 was incorporated into The Adoption Act of 1980, Act of October 15, 1980, P.L. 934, No. 163. 23 Pa.C.S.A. § 2511(a)(1).

      . In the instant case, the lower court noted “that the careful and individualized scrutiny which the Pennsylvania Supreme Court requires lower courts to give each case of involuntary termination belies respondent’s argument that the weakest standard of proof is acceptable in such cases." Lower court opinion at 11. We cannot conclude, however, that the lower court applied the constitutionally required “clear and convincing evidence” standard, and we .therefore must remand in light of Santosky and M.E.T.