author: POPOVICH, Judge: CIRILLO, Judge,

text:
    489 A.2d 845
    COMMONWEALTH of Pennsylvania v. Charles Jefferson SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed March 1, 1985.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence in which appellant, Charles Smith, entered pleas of guilty to robbery, aggravated assault, and disorderly conduct. We reverse and remand for proceedings consistent with this opinion.

In this appeal, appellant raises one issue. He contends that his sentence is excessive because it “was nearly three times greater than the maximum sentence recommended under the guidelines for an ‘aggravated’ range.” Brief for the Appellant at 2.

Appellant received a term of imprisonment of not less than five years nor more than ten years on the robbery conviction; a consecutive term of imprisonment of not less than six months nor more than one year on the disorderly conduct conviction, and a term of probation of ten years on the aggravated assault conviction, which was to run concurrent with the robbery conviction.

At the outset, the prosecution contends that the issue is waived because “[a]ppellant waited until the 28th day after the imposition of sentence to file his motion.” Brief for the Prosecution at 3.

However, the record shows that appellant’s counsel made the following statement at the sentencing hearing after being informed of his appellate rights:

MR. BOYD: Your honor, at this time inasmuch as the Court’s minimum sentence on the robbery is three and a half times the maximum of the aggravated circumstances for a guideline score of seven, with no prior record, the Defendant wishes to orally make a motion to modify this sentence, which will be reduced to writing. N.T. 6/27/83 at 11. (emphasis added).

The trial court responded in the following manner:

“THE COURT: You may do so and I have stated the reasons on the record, and I will place those reasons— again in the guidelines report. And they are basically that the Defendant has a history of assault, that he is before the Court — two assault charges. And that the assault charges stem from a needless, senseless act of assault, which took place after the primary robbery had taken place.” Sentencing Transcripts at 11-12.

Under these facts, we cannot assume that appellant's decision to reduce his petition to writing late was done in a knowing, intelligent, and ^ voluntary manner particularly when the record indicates that the court granted appellant permission at sentencing to “orally make a motion to modify sentence, which will be reduced to writing.” Id. Thus, we will consider appellant’s motion as if it had been filed timely. See Commonwealth v. Thomas, 301 Pa.Super. 333, 337, 447 A.2d 994, 996 (1982) (where appellant was led to believe that his appeal would be timely if filed within 30 days of the disposition of his motion to challenge his sentence instead of from the date that his sentence was imposed, his appeal would be considered as if timely filed). We have said that:

“[t]he purpose of a petition for reconsideration is to afford the sentencing court an opportunity prior to appellate review, to correct any errors that may have occurred at sentencing.” Commonwealth v. Burtner, 307 Pa.Super. 230, 235, 453 A.2d 10, 12 (1982) (citations omitted).

See Pa.R.Crim.P. 1410 (“petition to modify should be filed within 10 days of the date that sentence is imposed”).

In the instant case, the trial court was not deprived of that opportunity since it had “an opportunity prior to appellate review to correct any errors that may have occurred at sentencing.” Id. See Commonwealth v. Gordon, 329 Pa.Super. 42, 49, 477 A.2d 1342, 1345-6 (1984) (“the trial court lacks jurisdiction to modify a sentence once the 30 day period for filing an appeal has passed.”).

Appellant is arguing that the new sentencing guidelines were not followed, and that the matter should be remanded because the court “gave no reasons why the sentencing guidelines were not imposed.” Brief for Appellant at 2.

We must remand the matter because the sentencing proceedings were defective.

The appellant was sentenced on June 27, 1983, which was after the effective date of the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, 42 Pa.C.S. § 9721 (effective July 22, 1982). Recently, this Court applied the new guidelines and said the following:

Initially, we note that there are two sets of “guidelines” for imposition of sentence. The earlier legislative “guidelines” are actually factors to be considered in weighing sentencing alternatives found in the Sentencing Code, 42 Pa.C.S. § 9701, and deal in general with the alternatives of (1) probation; (2) determination of guilt without further penalty; (3) partial confinement; (4) total confinement and (5) a fine. 42 Pa.C.S. §§ 9721 to 9726. As noted in Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979):
In imposing sentence the court “must not overlook pertinent facts, disregard the force of the evidence, commit an error of law ... or inflict punishment exceeding that prescribed by statute.” Commonwealth v. Knight, supra, 479 Pa. [209] at 212, 387 A.2d [1297] at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, supra, Commonwealth v. Riggins, supra [474 Pa. 115, 377 A.2d 140 (1977)]. (emphasis added).
* * * * * *
The guidelines promulgated by the Pennsylvania Commission on Sentencing are set forth in the Pennsylvania Code and found at 42 Pa.C.S. § 9721. They were adopted by the legislature on May 14, 1982, to become effective on July 22, 1982. The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth. Accordingly, the guidelines set forth the minimum range, aggravated minimum range and mitigated minimum range of sentence for the offenses dealt with in the sentencing range chart. The sentence range chart deals with specific offenses and the range of sentence for that offense considering “the offense gravity score” and “prior record score” as well as “weapon enhancement”, if applicable. The sentencing guidelines now include specific as well as general standards which must be considered by the trial court.
In every case where sentence is imposed the court must state on the record at sentencing the reasons for the imposition of the sentence. This rule is applicable whether or not the sentence imposed is within the specific guidelines established by the Pennsylvania Commission on Sentencing. Commonwealth v. Royer, 328 Pa.Super. 60, 66, 476 A.2d 453, 455 (1984).

The underlying crime for which appellant was sentenced stemmed from appellant's entrance into a Turkey Hill Minit Market at 3:50 in the morning in Lancaster, Pennsylvania on December 8, 1982. While appellant was in the store, he struck the cashier about the face and neck areas and attempted to commit a robbery.

Appellant demanded money and received approximately sixty dollars in cash. The victim sustained serious bodily injury and had to be admitted to the hospital to have extensive medical attention.

In the instant case, there is no issue regarding whether the trial court complied with the first set of general guidelines as set forth in Commonwealth v. Riggins, supra. Instead, we are confronted with a question about the specific standards which must be considered by the trial court.

The record shows that appellant entered pleas of guilty to felonies of the second degree, robbery and aggravated assault. The simple assault charge was reduced to disorderly conduct, a misdemeanor of the third degree.

The procedure for determining the guideline sentence is set forth as follows in Section 303.2:

(1) Determine the prior record and offense gravity scores as described in §§ 303.7 and 303.8 (relating to prior record score and offense gravity score) except where the current conviction is for “Driving Under the Influence” under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance).
(2) Refer to the Sentence Range Chart in § 303.9 (relating to sentence range chart) except in cases of “Driving Under the Influence” under 75 Pa.C.S. 3731 (relating to driving under the influence of alcohol or controlled substance); in which case, refer to § 303.5 (relating to driving under the influence of alcohol or controlled substance).
(3) Determine if aggravating or mitigating circumstances apply, as described in § 303.3 (relating to aggravating or mitigating circumstances).
(4) Select a sentence from the Sentence Range Chart as listed in § 303.9 (relating to sentence range chart) except where the current conviction is for “Driving Under the Influence” under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance); in which case, apply the provisions of § 303.5 (relating to driving under the influence of alcohol or controlled substance).
(5) Determine if a deadly weapon was used in the offense and apply the provisions of § 303.4 (relating to deadly weapon enhancement).

First of all, the trial court stated that it would “not be considering the juvenile record of the appellant”. Sentencing Hearing at 4. The court also said that the appellant “has no prior criminal record as an adult”. Id. at 7. However, the court noted the following:

“while [appellant] was in the military service he spent thirteen and one-half months in prison for assault of a fellow enlisted man. And this is based on an admission of his own made to the investigating officer who did the pre-sentence report. This was a crime of violence, which placed people’s lives in danger and created a risk of bodily injury, serious bodily injury, and in this particular case, even the possibility of death.” Id.

The sentencing guidelines define a prior conviction in the following manner:

“A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.” § 303.7(g).

By appellant's own admission, he had a prior criminal record when he was nineteen years of age while serving in the armed forces.

In determining, the second aspect of the guidelines sentence, the offense gravity score, we note that the robbery score has been “subcategorized and scored by the Commission according to the particular circumstances of the offense.” § 303.8(b). In this subsection, “[t]he court determines which score applies in certain cases,” e.g., possessing instruments of crime, burglary, involuntary deviate sexual intercourse, and a former convict not to own a firearm. Id. The relevant sections of the robbery score are as follows:

CRIMES CODE OFFENSES
18 Pa.C.S. § Offense Title Statutory Classification Offense Gravity Score
3701(a)(1)(i) Robbery (inflicts serious bodily injury) F1 9
3701(a)(1)(ii) Robbery (threatens another with or intentionally puts him in fear of immediate serious bodily injury) F1 7
3701(a)(1)(iii) Robbery (commits or threatens immediately to commit any F1 or F2) F1 7
*3701(a)(1)(iv) Robbery (inflicts bodily injury) F2 6
*3701(a)(1)(iv) Robbery (threatens bodily injury or intentionally puts him in fear of immediate bodily injury) F2 5
3701(a)(1)(v) Robbery (physically takes or removes property by force, however slight) F3 5

303.8(d).

The court did not articulate at sentencing which offense gravity score was applicable; however, the court stated that the robbery offense initially charged was a felony of the first degree although appellant eventually entered a plea to a felony of the second degree. According to this scenario, the applicable offense score would be six (6).

As a next step, we must determine according to Section 303.2(3) if aggravating or mitigating circumstances are present. These circumstances have been defined according to Section 303.3 in the following manner:

§ 303.3 Aggravating or mitigating circumstances.
When the court determines that aggravating or mitigating circumstances warrant:
(1) It may sentence:
(i) within the aggravated or mitigated range provided in § 303.5 (relating to driving under the influence of alcohol or controlled substance) when the current conviction is for “Driving Under the Influence”; or
(ii) within the aggravated or mitigated range provided in § 303.9 (relating to sentence range chart) for all other convictions; and
(2) it shall state the reasons therefore on the record.

The third step is to refer to the sentence range chart which is set forth in § 303.9. The relevant range chart is as follows:

Offense Prior Aggravated Mitigated
Gravity Record Minimum Minimum Minimum
Score Score Range * Range * Range *
* WEAPON ENHANCEMENT: At least 12 months and up to 24 months confinement must be added to the above lengths when a deadly weapon was used in the crime
** These offenses are listed here for illustrative purposes only. Offense scores are given in § 303.7.

303.9(b).

In selecting a sentence from the sentence range chart as listed in § 303.9, we note that the court did not assign a score for a prior record. However, in this case, the aggravated minimum range is the same for a prior record score of zero (0) or one (1). Thus, the applicable aggravated minimum range from the chart is twelve to eighteen months imprisonment (12-18). The court sentenced appellant, Charles Smith, to a minimum term of five years in prison, which exceeds the sentencing guidelines. The court did not find that appellant possessed a deadly weapon, and as a result, the sentence could not be enhanced for this reason.

Because the court imposed a sentence outside of the guidelines, we must resort to Section 303.1 which provides:

“(h) In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record and disclose in open court at the time of sentencing a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from this chapter.” (emphasis added).

In determining whether the court complied with the contemporaneous written statement requirement, we have said that:

“two issues are raised: (1) was the statement of the court made at sentencing in the defendant’s presence, and recorded, a ‘contemporaneous written statement’; and if so then, (2) is the statement sufficient to meet the requirements of the act. The first issue deals with the meaning of ‘contemporaneous written statement’, which requirement is mandatory and ‘not discretionary.’ Commonwealth v. Love, 295 Pa.Super. 276, 280, 441 A.2d 1230, 1232 (1982).” Commonwealth v. Royer, 328 Pa.Super. 60, at 68, 476 A.2d 453, at 457.

The trial court in sentencing appellant gave his reasons for imposing sentence at the sentencing proceedings, in appellant’s presence, which were transcribed and made a part of the official record. Under such circumstances, we have held that “the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constituted a ‘contemporaneous written statement’, within the meaning of the Act.” Id.

With respect to whether the statements which were made by the trial court at sentencing were sufficient within the meaning of the Act, we have stated that “at the minimum, the court must indicate that it understands the sentencing guideline range, in those cases in which the court deviates from the guidelines.” Id. Additionally, the court must state that the record must include “at least in a summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Id.

The only references to the range of permissible sentences were made by appellant’s attorney. In discussing the aggravated assault charge, the attorney stated the following:

“I’d like to state that this is a, I believe, a seven on the sentencing guideline under the aggravated assault section, and Mr. Smith is cognizant of what he is doing and regretful for what he did.” Sentencing Transcript at 5. Later in the proceedings, appellant’s attorney referred

again to the range of sentencing:

“MR. BOYD: Your Honor, at this time, inasmuch as the Court’s minimum sentence on the robbery is three and a half times the maximum of the aggravated circumstances for a guideline score of seven, with no prior record, the Defendant wishes to orally make a motion to modify this sentence, which will be reduced to writing.” Sentencing Transcript at 11.

The court responded in the following manner:

“THE COURT: You may do so and I have stated the reasons on the record, and I will place those reasons— again in the guidelines report. And they are basically that the Defendant has a history of assault, that he is before the Court — two assault charges. And that the assault charges stem from a needless, senseless act of assault, which took place after the primary robbery had taken place.” Sentencing Transcript at 11-12.

We find that because the “court did not advise the defendant what the sentencing guidelines provided as far as the range of sentence and did not state why he deviated from the sentencing guidelines”, we must vacate and remand for resentencing. Commonwealth v. Royer, 328 Pa.Super. at 71, 476 A.2d at 458.

This case demonstrates the importance of providing a contemporaneous written statement which indicates the range of sentencing. The appellant’s attorney referred at sentencing to an offense gravity score of seven. However, this would have been the correct score if appellant had been sentenced to a felony of the first degree. See Section 303.8 of the sentencing guidelines. The trial court stated and the record shows that appellant “pled guilty to a robbery [under 18 Pa.C.S.A. § 3701(a)(1)(iv) ], which is a felony of the second degree”. Sentencing Transcript at 6. In view of this discrepancy, the record begs for clarification regarding the possible range of sentences. The record is deficient for this reason and also because the court failed to state why it had deviated from the guidelines.

Case is remanded for resentencing. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

A remand for resentencing in this case is inappropriate because the sentencing judge’s statement of his reasons for imposing five to ten years for robbery and aggravated assault, instead of the 18 months suggested by the Sentencing Code Guideline Chart (204 Pa. Code § 303, reprinted in 42 Pa.C.S. § 9721), was sufficient and does not show an abuse of discretion.

It is my opinion that the Code Guidelines are guidelines, and nothing more. The sentencing judge is not strictly bound to follow them because they were intended to be an advisory tool and not general sentencing law. The sentencing statute allows the judge a broader discretion than a mere mechanical application of the code’s guideline chart.

The guiding principle of sentencing, according to the statute, is “that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). The only limitation on this general principle is the requirement that “where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guideline.” Id. Thus, the sentencing statute clearly provides that a judge may deviate from the Code Guidelines within his sound exercise of discretion as long as he gives his reasons in writing.

The majority’s ground for remand is that while the sentencing judge did state why he imposed five to ten, he failed to relate how he incorporated a consideration of the Code Guidelines into his decision. On the contrary, the judge’s consideration of the guidelines is readily apparent. In choosing not to follow the guidelines the judge obviously considered that in light of the defendant’s general tendency toward violence the general directive of 9721(b) controlled instead of the guideline chart.

The judge’s articulated reasons for imposing a particular sentence should reflect the judge’s consideration of the sentencing code, the circumstances of the offense, and the character of the offender. Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). In stating his reasons, the judge took note of the defendant’s violent tendencies as evidenced by his juvenile record, military record, and the way he wantonly inflicted harm after he had already completed a robbery. The judge thus concluded that the guideline minimum sentence of eighteen months was inadequate for the protection of the community.

An abuse of discretion standard for sentencing review has traditionally been applied in Pennsylvania in accordance with the statutory mandate set forth in § 9721. A sentencing court must consider any information in the record that bears upon the degree of punishment and must clearly examine the facts and circumstances of the crime and the character and background of the defendant, and in doing so must not overlook pertinent facts, disregard the force of evidence, or commit error of law. Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982). The general principle of the sentencing statute contemplates that it is not an abuse of discretion to impose sentence upon consideration of all the facts, even if this entails deviating from the guidelines. I respectfully dissent from the order to remand for resentencing.

      . 18 Pa.C.S.A. § 3701(a)(1)(iv).

      . 18 Pa.C.S.A. § 2702(a)(1).

      . 18 Pa.C.S.A. § 5503.

      . Section 303.8 is set forth in the following format:
      § 303.8 Offense gravity score.
      (a) An offense gravity score is given for each current conviction offense. It ranges from 1-10.
      (b) Offenses under the following provisions are subcategorized and scored by the Commission according to the particular circumstances of the offense. The court determines which score applies:
      18 Pa.C.S. § 907 (relating to possessing instruments of crime)
      18 Pa.C.S. § 3502 (relating to burglary)
      18 Pa.C.S. § 2702 (relating to aggravated assault)
      18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)
      18 Pa.C.S. § 3701 (relating to robbery)
      18 Pa.C.S. § 6105 (relating to former convict not to own a firearm, etc.)

        18 Pa.C.S. § 6106 (relating to firearms, not to be carried without a license)
      18 Pa.C.S. § 6108 (relating to persons to whom delivery shall not be made) ,,
      (c) Offenses which are not listed in subsection (d) are scored as follows:
      Felony I 7
      Felony II 6
      Felony III 4
      Felonies not subclassified by the General Assembly 4
      Misdemeanor I 3
      Misdemeanor II 2
      Misdemeanor III 1
      Misdemeanors not classified by the General Assembly 1

      . If the court considered appellant to have a prior record at all, it would have had to calculate the number of points which were to be assigned in order to arrive at the sentencing range in accordance with Section 303.7. However, because the record fails to contain any information which would support a prior record score of greater than one, we have given the trial court the benefit of the doubt in our analysis and have assumed that either the court assigned a score of zero or one. However, because the sentencing range is the same for either score, our remand does not depend upon this factor alone.

      . Section 303.4 provides:
      (a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.
      (b) There shall be no such enhancement for convictions: under 18 Pa.C.S. § 2702(a)(4) (relating to aggravated assault); of violations of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6120; under 18 Pa.C.S. § 907 (relating to possessing instruments of crime); under 18 Pa.C.S. § 908 (relating to prohibited offensive weapons); or of any other offense for which possession of a deadly weapon is an element of the statutory definition.

      . 18 Pa.C.S.A. 3701(b) provides:
      "(b) Grading — Robbery under subsection (a)(1)(iv) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.”
      As a felony of the second degree, the appellant could have been sentenced to a maximum term of not more than ten years imprisonment and fined not more than $25,000. See 18 Pa.C.S.A. §§ 1103 and 1101(1).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    489 A.2d 853
    COMMONWEALTH of Pennsylvania, Appellee, v. John H. TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 17, 1984.
    Filed March 8, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   CAVANAUGH, Judge:

This is an appeal from the judgment of sentence entered on February 9, 1982, in the Court of Common Pleas of Allegheny County by the Honorable Samuel Strauss. Appellant was sentenced to a term of imprisonment of not less than two years or more than four years for violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant avers on appeal 1) that the trial court erred in denying appellant’s pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 1100, and 2) that the trial court erred in denying appellant’s request to suppress alleged statements made by him to the police at the time of his arrest because the Commonwealth failed to provide him the mandatory discovery required under Pa.R.Crim.P. 305(B)(1)(b). We affirm.

Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss and bases this contention on the Commonwealth’s alleged failure to exercise due diligence in bringing him to trial within 180 days as required by Pa.R.Crim.P. 1100. The pertinent facts relating to this contention are not in dispute.

Appellant was arrested on August 29, 1980, and charged with violating the Uniform Firearms Act, 18 Pa.C.S. § 6101 et seq. Appellant was subsequently incarcerated in a federal penitentiary in Morgantown, West Virginia, on an unrelated charge. Under Rule 1100(a)(2), the trial was to commence within 180 days from August 29, 1980, the date on which the complaint against the appellant was filed, or February 25, 1981. Trial was listed to commence on January 29, 1981, well within the 180 day limit. However, the trial did not commence on that day because appellant had escaped from the federal correctional facility in Morgantown, West Virginia on December 25, 1980. At the time of his escape, appellant knew that trial was listed for January 29, 1981. He then fled to Canada where he was apprehended on January 15, 1981. It was not until February 13, 1981, however, that he was returned to federal custody at Buffalo, New York. He was not returned to Pennsylvania or to the federal institution in West Virginia where the Commonwealth previously knew it had access to him. On February 6, 1981, the Commonwealth filed a petition to extend the time to commence trial pursuant to Rule 1100(c). On February 11, 1981, defense counsel filed an answer opposing the grant of this petition. The order was granted by the Honorable Ronald E. Dauer on February 19, 1981. This order stated that appellant “shall be tried not later than 45 days after [his] return to Pennsylvania.”

On June 23, 1981, the Commonwealth filed a Writ of Habeas Corpus ad prosequendum requesting the extradition of appellant from Buffalo, New York, to stand trial in Pennsylvania. Pre-trial proceedings commenced on July 29, 1981, and trial commenced the following day before the Honorable Samuel Strauss, clearly within the 45 days permitted by the order of February 19, 1981. Appellant was found guilty, and this appeal followed.

Appellant argues that the Commonwealth owed a duty to exercise due diligence to bring him to trial but that instead it waited several months from the time the extension order was granted to do so even though it was within the Commonwealth’s power to procure his return prior to that time. Appellant contends that the Commonwealth’s duty to exercise due diligence should be implied or read into Judge Dauer’s order of February 19, 1981. The Commonwealth, on the other hand, argues that it had no duty to exercise due diligence because the order did not explicitly require it.

Under Rule 1100, the Commonwealth has 180 days in which to bring the defendant to trial. However, Rule 1100 is tolled under the following circumstances:

Rule 1100. Prompt Trial
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.
(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.

Rule 1100(c)(3) and (d)(1) expressly require that the Commonwealth exercise due diligence to bring the defendant to trial in order to toll the Rule. Although Rule 1100(d)(3)(i) (the unavailability of the defendant or his attorney) does not explicitly require due diligence, it has been held that a showing of due diligence by the Commonwealth is necessary before a defendant will be labelled “unavailable.” We shall first examine whether the order in question was properly granted.

The Commonwealth is under no duty “to file a petition for an extension of time when the delay is caused by the unavailability of the defendant”, but rather, the extension is “automatic”. Commonwealth v. Wright, 260 Pa.Super. 341, 394 A.2d 582 (1978); see also Commonwealth v. Richbourgh, 246 Pa.Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Williams, 284 Pa.Super. 125, 425 A.2d 451 (1981). But c.f. Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982) (a petition to extend time was not deemed improper though appellant was said to be “unavailable”).

In the instant case, it may be said that appellant was unavailable when the Commonwealth petitioned for the extension. He had been missing from the correctional facility in West Virginia for over a month, and had not as yet been turned over to federal custody. There were also charges pending against him in Canada and West Virginia which would militate against his availability to stand trial here at the Commonwealth’s convenience. The Commonwealth’s petition averred appellant’s unavailability and Judge Dauer apparently accepted the veracity of this averment when he granted the order.

We do not fault the Commonwealth or Judge Dauer for erring on the side of caution, however, in respectively seeking and granting the extension order in question. At the time the Commonwealth petitioned for the extension, appellant had already been apprehended in Canada and there may well have been a question as to whether he would be “available” in the near future. A defendant’s right to a speedy trial should never be dispensed with lightly, and so, rather than dismiss the order as “improperly granted”, we believe that the Commonwealth exhibited laudable caution in petitioning for the extension in this instance.

Having thus concluded that the order was not improperly granted, we further conclude that the duty to exercise due diligence should not be implied or read into it. We do not, however, base this decision solely on an explicit reading of the words of the order itself. While it was permissible for the Commonwealth to rely on an explicit reading of the order and to thus conclude that it owed no duty to exercise due diligence, our holding would be the same even if the order had never been granted. The underlying reason that the Commonwealth owed no duty to exercise due diligence was that the appellant in this case committed a willful act in dereliction of a serious societal duty after having been subjected to process of court. A sound reading of the cases decided under Rule 1100 compels this conclusion and our explanation follows.

In analyzing whether an appellant’s speedy trial rights have been violated for failure to bring him to trial within 180 days, we must seek guidance in authority beyond the nearest desk calendar. One case of recent vintage is Commonwealth v. Crowley, 502 Pa. 393, 402, 466 A.2d 1009, 1014 (1983), where Justice Hutchinson, writing for the majority, stated: “The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice.”

Turning to the instant case, the appellant was incarcerated in a federal correctional facility, knew that society ordained that he stay there, knew the date of his trial listing, but escaped nonetheless. His failure to appear for trial on the date set is strongly analogous to the situation where a defendant is released on bail and is duly notified of the date of his arraignment, but fails to appear for the arraignment. In both cases the defendants have committed willful acts in dereliction of a serious societal duty after having been subjected to the process of the courts of this Commonwealth. There exists a consistent and thoughtful line of cases dealing with the bail situation, just described. We believe that the rationale applied in those cases should apply with at least equal force to the instant case.

A distinguished member of this line of cases is Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978). We find its rationale extremely helpful in deciding the case before us and believe that the words of its author, Justice (now Chief Justice) Nix, are relevant to the issue confronting us.

Where a defendant undertakes to accept the status of bail during the pendency of court proceedings he assumes the responsibility of making himself available for any court appearances required of him in connection with the action, upon receipt of reasonable notice. To focus solely upon the conduct of the Commonwealth not only ignores the defendant’s dereliction of an obligation, but also places him in the position of possibly benefitting from his own wrongdoing. Where the delay results from the defendant’s willful failure to appear at the appointed time it is obviously not the type of harm envisioned in the protections sought to be afforded by the speedy trial guarantee. To the contrary, the delay is directly attributable to the fact that he was in a bail status, and not in custody, and that he deliberately abused that prerogative ... In applying the due diligence requirement as to service of a warrant of arrest we recognized that it was the obligation of the police to notify the accused of the issuance of the warrant. Commonwealth v. Mitchell, [472 Pa. 553, 372 A.2d 826] supra. An accused, unaware that process has been issued against him, has no obligation to make himself available. Employing a due diligence criteria in such a situation provides the basis for attributing to the accused any delay that results in his apprehension. Where, however, the accused is aware of his obligation to appear and fails to do so, he may legitimately be held accountable for any resultant delay. Restated, where a warrant of arrest is involved the requirement of due diligence in the service of process is required before blame can be assigned to the suspect. Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.
We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during the period of his absence.

Commonwealth v. Cohen, 481 Pa. at 354-56, 392 A.2d at 1330-31. See also Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Commonwealth v. McCulley, 270 Pa.Super. 115, 410 A.2d 1276 (1979); Commonwealth v. Schwartz, 304 Pa.Super. 125, 450 A.2d 133 (1982); Commonwealth v. Snyder, 280 Pa.Super. 127, 421 A.2d 438 (1980); Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982); Commonwealth v. Blackwell, 312 Pa.Super. 117, 458 A.2d 541 (1983); Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982); Commonwealth v. Bennett, 320 Pa.Super. 150, 466 A.2d 1362 (1983).

The analogy we draw between the instant case and Cohen and its progeny is soundly supported in case law and in reason. It is the purpose of Rule 1100 to serve the interests of both the defendant and society. See Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). The Commonwealth is always obligated to exercise due diligence to bring the accused to trial after a warrant has been issued against him, at least until the accused is subjected to the process of the courts of this Commonwealth. Rule 1100(d)(1) requires that in order for the Commonwealth to exclude the period of time between the filing of the written complaint and the defendant’s later arrest, it must be shown that the Commonwealth acted with due diligence in searching for him.

An important distinction is illustrated by comparing the facts of Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981), and Commonwealth v. McCulley, 270 Pa.Super. 115, 410 A.2d 1276 (1979). In Polsky, the defendant had voluntarily absented himself before the complaint was filed. There, the Commonwealth had a duty to act with due diligence to secure his return to Pennsylvania. In McCulley, on the other hand, the Commonwealth had no duty to exercise due diligence in locating and bringing to trial a defendant who failed to appear for trial after he had been apprehended, arraigned, and notified of the trial date. In the latter case, the defendant was subject to the process of court, while in the former, he was not. “An accused, unaware that process has been issued against him, has no obligation to make himself available. Employing a due diligence criteria in such a situation provides the basis for attributing to the accused any delay that results in his apprehension.” Commonwealth v. Cohen, 481 Pa. at 355, 392 A.2d at 1330.

Due diligence is not needed pursuant to a warrant-less arrest but is needed where an arrest is sought pursuant to a warrant. In the latter situation, “disruption of employment, curtailment of associations, subjection to public obloquy, and creation of anxieties” are important concerns favoring the exercise of due diligence. Commonwealth v. Mitchell, 472 Pa. 553, 561, 372 A.2d 826, 830 (1977). These are concerns which should matter little in the instant case where the appellant voluntarily absented himself from prison after having been subjected to process of court.

Once the accused is subject to process of court, a willful act in dereliction of duty is a forfeiture and serves to negate any duty the Commonwealth has to exercise due diligence in bringing him to trial. “While Rule 1100 is a shield to protect defendants from undue procrastination in the commencement of proceedings against them, we refuse to overextend the protections afforded by that Rule in a manner that would enable it to be used as a sword to allow the accused to benefit from his own misconduct.” Commonwealth v. Brightwell, 486 Pa. 401, 408, 406 A.2d 503, 506 (1979). See also Commonwealth v. Guldin, 502 Pa. 58, 463 A.2d 1011 (1983).

That the willfulness of a defendant’s actions should matter in an analysis of a defendant’s speedy trial rights is given articulation within Rule 1100 itself. Under Rule 1100, 1) where a defendant waives the Rule (see Rule 1100(d)(2)) and, 2) where continuances are granted at the request of the defense (see Rule 1100(d)(3)(ii)), the Commonwealth is not required to exercise due diligence in order to toll the Rule.

Numerous cases concern a circumstance which bears a facial similarity to the instant case: the situation where the accused is incarcerated in a different jurisdiction and the Commonwealth is inactive in seeking his return for trial. Mere incarceration in another jurisdiction does not excuse the Commonwealth from exercising due diligence in bringing a defendant to trial. Rule 1100 will be tolled when the defendant is “unavailable” according to 1100(d)(3)(i), but a defendant will not be classified as “unavailable” absent a showing of due diligence by the Commonwealth. See Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Commonwealth v. Alexander, 318 Pa.Super. 344, 464 A.2d 1376 (1983); Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978); Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976). In these cases, the defendants committed no willful act in dereliction of a serious societal duty after having been subjected to the process of court. The Commonwealth simply allowed the defendants to remain in the custody of another jurisdiction while it stood idly by. The 180 day “clock” ticked away nevertheless.

Similarly, there are opinions which deal with the situation of a defendant being placed in another jurisdiction’s custody after first having been incarcerated in this Commonwealth. Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977); Commonwealth v. Clark, 248 Pa.Super. 184, 374 A.2d 1380 (1977). Once again, the taint of a volitional act in dereliction of a duty is missing and, as in the previous situation, Rule 1100 will not be tolled.

Despite appellant’s escape, he would have us hold that the Commonwealth violated its duty of due diligence. The adoption of this position would be tantamount to tossing the authority we have cited onto a scrapheap of judicial indifference. To hold that the appellant in the instant case is entitled to the same standard of due diligence that we would afford an appellant who accepts his confinement without flight or one who diligently appears for his arraignment is contrary to reason and authority.

Even if the trial record illuminated the facts as to whether or not the Commonwealth exercised due diligence, we would not consider the record as to this issue because no such duty was owed. Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982).

We can only assume that because trial was listed for January 29th, it would have commenced on that date had appellant not escaped. Appellant was ultimately apprehended, it is true. But the apprehension was not accomplished by instrumentalities of the Commonwealth. Appellant’s apprehension and subsequent imprisonment in New York were surely not volitional acts on his part, but they resulted, from a volitional act of a serious nature — his escape of December 25, 1980.

Assuming that the revised 180 day period was to expire on April 13, 1981 (see footnote 3), and that the Commonwealth waited until June to file for his extradition even though the appellant may have been “available” earlier, this entire period shall be charged to the appellant. “It is obvious that in many cases the defendant, by his unavailability, can occasion a delay which is much greater than the actual time of his unavailability. The rule charges this delay to the defendant.” Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982). See also Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983).

Finally, we observe that there are indeed cases which can be read to be at odds with our present analysis. In Commonwealth v. Goodman, 260 Pa.Super. 266, 393 A.2d 1256 (1978), it was held that the Commonwealth was required to exercise due diligence in securing the return of a defendant who escaped after having been subject to the process of court. Rule 1100 was not tolled, according to this decision, because of the Commonwealth’s failure to exercise due diligence.

Goodman cites two cases in support of its holding, Commonwealth v. McCafferty, 242 Pa.Super. 218, 363 A.2d 1239 (1976), and Commonwealth v. Kovacs, 250 Pa.Super. 46, 378 A.2d 455 (1977). Both have been dealt with previously in this opinion. Both involve defendants who were either placed or allowed to remain in confinement in other jurisdictions. They had not voluntarily absented themselves in flagrant violation of a serious societal duty. Thus, both are distinguishable from the Goodman facts. Furthermore, Goodman does not cite Commonwealth v. Cohen, supra, or any of the cases decided under its authority in discussing this issue. And, of course, the case precedes the Supreme Court’s opinions in Commonwealth v. Crowley (supra) and Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) where Justice Hutchinson wrote:

It is evident from the record of the Rule 1100 hearing that the constitutional standard for a speedy trial has been met in this case, and we now decline to exercise a stopwatch approach to the definition of “due diligence”. Therefore, we hold the court en banc acted incorrectly in separately metering each step in the pre-trial process against the due diligence standard. Rule 1100 provides an overall standard of 180 days, not separate standards for each step. Its due diligence exception should be measured against the whole not its separate parts.

Terfinko, 504 Pa. at 392, 474 A.2d at 279.

These opinions are representative of our Supreme Court’s developing philosophy with respect to the interpretation of Rule 1100.

In one respect, Goodman is distinguishable from the instant case. In the instant case, the Commonwealth was granted an order extending the time to commence trial. This order allowed the Commonwealth to await the appellant’s return to the Commonwealth before it was required to try him. No such order was present in Goodman. Notwithstanding this distinction, and in light of the other authority we cite here, we do not believe that Goodman dictates a result different from the one we now reach.

While we would hope that our law enforcement officials would engage every escaped convict in assiduous pursuit, we hardly think that society’s interests would be well served by ordering the appellant’s discharge in this case. In determining whether to confine or discharge an appellant under Rule 1100, we must refrain from using an atomic-precision clock lest we sacrifice justice in the process.

Mr. Taylor has had his day in court, and for the reasons stated above, we hold that his trial was commenced in a timely fashion and that his rights under Rule 1100 have not been violated.

Appellant also alleges that a new trial should be granted because the Commonwealth introduced an allegedly inculpatory statement against him without providing him mandatory discovery pursuant to Rule 305(B)(1)(b).

The allegedly inculpatory statement was made at the time of appellant’s arrest. Appellant was leaning against a building. Near him was a parked car with its engine idling. One of the arresting officers testified that upon his arrest, appellant indicated a desire to have the officer turn off the car’s engine. The officer testified that the appellant said either “shut my car” (sic) or “I want to shut my car off.” This testimony conflicted with that of the appellant who claimed that he had said “shut the car off.” The appellant now asserts that the Commonwealth’s failure to provide the contents of the officer’s testimony as part of mandatory discovery warrants the granting of a new trial.

It is appellant’s contention that the car’s impoundment and the issuance of a search warrant were apparently accomplished in the belief that the car belonged to the appellant. The search resulted in the finding of illegal firearms within the car.

We fail to see how a discrepancy between the words “my” and “the” could warrant the granting of a new trial in this case. Appellant was leaning against a building, perhaps ten feet from the vehicle in question. The engine was idling at the time. Upon being arrested, appellant expressed a desire to have the engine turned off. Under the circumstances, it matters not if appellant believed he had said “the” car even though the officer testified that the appellant had said “my” car. The inference that the car was his or was in his control was so overwhelming that we need delve no further into the murky recesses of this contention.

Under Rule 805E, it was within the trial court’s discretion to admit the officer’s statement even if the discovery Rule was violated. Whatever inculpatory content may have been associated with the officer’s statement, it was at most only minimally more harmful to appellant than the statement appellant testifies to having made.

For these reasons, we affirm the judgment of sentence.

      . Because neither the appellant nor the Commonwealth contend to the contrary, for purposes of this appeal we shall treat the appellant’s incarceration in West Virginia up until December 25, 1980, the same as we would had the appellant been incarcerated in this Commonwealth.

        . Rule 1100. Prompt Trial
      (a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . The appellant’s brief is somewhat confusing in this respect. The brief states that the Commonwealth waited five months from the time the order was granted until it filed extradition papers to secure appellant’s return. In fact, the order was granted February 19, 1981, and the Commonwealth filed extradition papers on June 23, 1981. Furthermore, the appellant concedes that his unavailability due to his escape resulted in a new "run” date (the last date on which the Commonwealth could bring the defendant to trial within 180 days) of April 13, 1981.

      . Technically, the two sections seem to refer to different sorts of "due diligence." 1100(c)(3) requires that the Commonwealth show that the trial could not be commenced within the prescribed period despite due diligence by the Commonwealth. 1100(d)(1) seems to require due diligence in searching for the defendant. In fact, the “due diligence” required of the Commonwealth by these two sections (and also the due diligence required pursuant to Rule 1100(d)(3)(i)) are generally not distinguished in the opinions interpreting the Rule. The due diligence required is due diligence in bringing the defendant to trial either within the prescribed period, or if due diligence was exercised to

        no avail, then as quickly as possible after the 180 day period has passed.

      . The comment to this rule formerly required a showing of due diligence but at present does not.

      . See Commonwealth v. Pichini, 308 Pa.Super. 425, 454 A.2d 609 (1982). The defendant’s "unavailability” in Pichini was not due to a willful dereliction of a duty.

      . Justice Zappala, dissenting in Commonwealth v. Terfinko, 504 Pa. 385, 394, 474 A.2d 275, 279 (1984) wrote: "Rule 1100 was promulgated to ensure a defendant’s right to a speedy trial and to avoid a case-by-case review to determine whether that right has been violated. Consistently, this Court has ignored the clear mandate of Rule 1100 by a course of judicial amendment without formally adopting or repealing an existing Rule.” Whether or not the Supreme Court "has ignored the clear mandate” of the Rule is not for us to say. We note only the trend upon which our Supreme Court has embarked in laying less stress on an absolute adherence to the 180 day period and more on a determination that justice be served. See Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) and Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983).

      . Rule 1100 is tolled in a variety of instances where the defendant’s actions, or the actions of his attorney, contribute to delay in commencing trial, even in the absence of willfulness. See Commonwealth v. Jackson, 262 Pa.Super. 151, 396 A.2d 690 (1978) (the appellant’s attorney’s thirty-nine day vacation was excluded from the 180 day period); Commonwealth v. Bearish, 321 Pa.Super. 541, 468 A.2d 1121 (1983) (appellant’s vacation time excluded); Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980) and Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976) (delay caused by appellant’s hospitalization is excluded). This line of cases includes among those instances giving rise to excludable time occurrences which are not "willful" derelictions of a duty. Occurrences such as the hospitalization of a defendant cannot be attributed to willful dereliction but Rule 1100 is tolled nonetheless because the delay emanates from the defendant, and the Commonwealth has not caused it. In Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979), the Supreme Court of this Commonwealth wrote: "The concern of the Rule is the delay in the commencement of trial and section (d) seeks to prevent the Commonwealth from being accountable for those delays in the commencement of trial where they result from actions properly attributable to the defense.” Morgan, 484 Pa. at 123, 398 A.2d at 974-75.
      Thus, the delay need only be "attributable to the defense” to excuse the Commonwealth from the duty to exercise due diligence. However, where the defendant acts in willful dereliction of a serious societal duty, and this willful dereliction results in a delay in the commencement of trial, the scales of justice will tip that much further against any right he may have had to complain about the resulting delay.

      . It appears to us that the Goodman court separately metered each step in the pre-trial process — a practice that the Terfinko court held to be incorrect.

      . The other opinion we find troubling is Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1983). We note that the troubling language there is dicta and that the holding itself is not unsound. The pertinent facts are as follows. Appellant, having been arraigned and admitted to bail, failed to appear for the preliminary hearings scheduled for January 11. The delay that followed was clearly attributable to appellant. Preliminary hearings were scheduled for March 10 and April 7, but on both occasions the court found they were not held due to a lack of due diligence by the Commonwealth. We fail to see how the duty of due diligence, once discharged (because of appellant’s failure to appear), again became a binding obligation on the Commonwealth. In any event, we do not believe that the rationale employed in Ressler survives the one espoused in the recent case of Commonwealth v. Terfinko, supra. It appears to us that the Ressler court, like the Goodman court, has engaged in "separately metering each step in the pre-trial process" — a practice now forbidden by Terfinko.

      . B. Disclosure by the Commonwealth
      (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      (a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
      (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth;

      . The officer testified that appellant was "beside” the car while appellant testified he was ten feet from it.

      . E. Remedy
      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.


text:
    489 A.2d 862
    ESTATE OF Francis A. McKENNA a/k/a Rev. Francis A. McKenna, Deceased. Appeal of Robert KEATING.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1984.
    Filed March 8, 1985.

      John A. Prodoehl, Jr., Media, for appellant.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Reverend Francis A. McKenna died on December 21, 1981, leaving a last Will and Testament dated February 15, 1979. Under item SECOND of his Will, the Testator bequeathed $2,000.00 and his chalice to the Society for the Propagation of the Faith. He also bequeathed $5,000.00 to his friends, William and Eleanor Casey, under item THIRD, and $10,000.00 to Oliver Keating under Item FOURTH. In item FIFTH, Father McKenna gave and bequeathed “all of my personal property of whatever kind and wherever located to my grandnephew, Robert Keating ...” In Article SIXTH he directed that all of his residuary estate was “to be divided equally between the Sacred Heart Cancer Home of Philadelphia, Pennsylvania [and] the Little Sisters of the Poor of Philadelphia, Pennsylvania”.

Father McKenna’s estate amounted to approximately $169,000.00 and consisted mainly of securities such as savings certificates, United States Treasury Bonds and cash. The only items of tangible personal property listed in the inventory filed with the Register of Wills consisted of his 1977 Plymouth Volare automobile valued at $2,300.00 and his chalice valued at $200.00. The decedent owned no real estate at the time of his death or when he executed his last will in 1979.

The Executor, Reverend John J. Kilgariff, filed his first and final account with the Orphans’ Court Division of the Court of Common Pleas of Delaware County and the account was stated to September 16, 1982. The statement of proposed distribution requested that $2,000.00 be paid to the Society for the Propagation of the Faith and that $10,000.00 be awarded to Oliver Keating. It was further requested that personal property consisting of the 1977 Plymouth Volare be awarded to Robert Keating. The statement concluded with the request that one-half of the residuary estate be awarded to Sacred Heart Cancer Home a/k/a Sacred Heart Free Home For Incurable Cancer and one-half to the Little Sisters Of The Poor a/k/a Little Sister’s Holy Family Home For The Aged. Audit notice letters were sent to all beneficiaries and the Attorney General of Pennsylvania as parens patriae. In the statement of proposed distribution the executor alleged that the estate was not subject to Pennsylvania inheritance taxes. Robert G. Keating filed objections to the account and requested that all assets in the estate be distributed to him under article FIFTH of the decedent’s will. A hearing was held in the Orphan’s Court Division at which time the appellant amended his objections and claimed that instead of being entitled to all of Father McKenna’s estate, he was entitled to all of the estate after payment or distribution of the bequests in items SECOND and FOURTH. The court below filed an adjudication dismissing Mr. Keating’s objections and directed distribution as follows:

Society for the Propogation of the Faith Chalice and $2,000.00
Robert Keating 1977 Plymouth Volare
Oliver Keating $10,000.00
Sacred Heart Cancer Home One-half of the balance of principal and income.
Little Sisters Of The Poor One-half of the balance of principal and income.

Exceptions were filed to the decree nisi and denied. The account was confirmed absolutely and an appeal has been taken to this court.

We must determine what the testator meant when he bequeathed all of his personal property to the appellant in article FIFTH. The polestar in the interpretation of any will is the intent of the testator which must be gathered from the entire will. Benson Estate, 380 Pa. 213, 110 A.2d 412 (1955). “To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding the execution of the will and other facts bearing on the question.” Sykes Estate, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978). In the ascertainment of a testator’s intent, a clause in a will must not be read in isolation but rather in the context in which it appears. Zerbey Estate, 313 Pa.Super. 297, 459 A.2d 1237 (1983). See also Clark Estate, 359 Pa. 411, 59 A.2d 109 (1948); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968). Further, in interpreting wills “the law will impute to the testator’s words such meaning as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice.” Umberger Estate, 369 Pa. 587, 592-3, 87 A.2d 290, 293 (1952). When the court can ascertain the intent of the testator with reasonable certainty through examination of the will itself, it generally does not look to matters external to the will. Kelly Estate, 473 Pa. 48, 373 A.2d 744 (1977). “Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, ... it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent.” Taylor Estate, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978).

Our first inquiry is whether the testator’s intent can be ascertained with reasonable certainty from within the four corners of the will. If so, extrinsic evidence would not be admissible to aid in the interpretation of the will. In items SECOND, THIRD, and FOURTH of his will, the testator made specific bequests of sums of money and in item SECOND he also bequeathed tangible personal property, his chalice. In Item FIFTH he bequeathed all of his personal property to his grandnephew, Robert Keating. In item SIXTH he provided that “[a]ll the rest, residue and remainder of my estate” was to be divided equally between two charities. Decedent owned no real estate when he made an earlier will in 1972 which we shall further discuss, and when he changed it by his last will in 1979. He owned no real estate when he died in 1981. If he intended to bequeath all of his personal property, both tangible and intangible, to his grandnephew, Robert G. Keating, by virtue of item FIFTH, then items SECOND, THIRD, FOURTH and SIXTH of his Will would have no meaning, as there would be nothing left in the decedent’s estate to pass under these items. This was the interpretation that the appellant originally gave to the will when he filed objections to the executor’s account.

A second interpretation of the will, and the one that appellant now espouses, is that the testator intended to make the bequests in item SECOND, THIRD and FOURTH and it was intended that the appellant should receive all of the rest of the decedent’s personal property, including intangible personalty, such as certificates of deposit, cash, stocks and bonds. This interpretation would, in effect, make item FIFTH a residuary clause, since the decedent had no real estate at the time he made his two wills and at his death. This would then nullify the decedent’s residuary clause as set forth in item SIXTH of his Will. The court below adopted a third interpretation that it was the intention of the testator to bequeath the gifts of money and tangible personalty set forth in items SECOND, THIRD and FOURTH of his will and further to bequeath to the appellant all of his tangible personal property, other than the chalice which he specifically bequeathed to the Society for the Propagation of the Faith, and the residue of his estate was to pass under item SIXTH to the two charities named therein.

In ordinary circumstances, the reference to all personal property would refer to all the personalty in which the decedent had an interest at the time of his death, whether it is tangible or intangible. Personal property in the ordinary sense includes stocks, bonds and cash. Lewis Estate, 407 Pa. 518, 180 A.2d 919 (1962). In fact, personal property generally means anything except real estate. McGlathery Estate, 311 Pa. 351, 166 A. 886 (1933). Appellant relies heavily on Putt Estate, 67 Schuylkill L.R. 17, 19, (1971) in which the Orphans’ Court of Schuylkill County stated:

When testator bequeathed all his “personal property of whatsoever nature and kind and wheresoever located” he used as broad a terminology as he could possibly have used.

In the instant will, however, the use of the term “personal property” was ambiguous and subject to various interpretations. As noted in Lewis Estate, supra, while the term personal property generally includes intangible as well as tangible property, it is not always so. In Lewis a bequest of “all my personal property except as otherwise specified” was interpreted as including only tangible personal property which was not otherwise bequeathed and did not include intangible property, as cash and securities. Similarly, in Plank Estate, 63 Dauphin County Rep. 3 (Dauphin County 1952), the reference to personal property in a will was limited to tangible personal property.

In the instant will, the use of the phrase “all of my personal property of whatever kind and wherever located” was ambiguous because of bequests to others of personal property, and the presence of a residuary clause which would have been redundant, had the appellant’s interpretation of the will prevailed. Every word and clause in a will must be given effect if reasonably possible, and the court cannot ignore language of the testator, except where the language of the entire will demonstrates that the language in question was inadvertently used and did not express the testator’s true intent. Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980). The use of the term “personal property” may not have been intended to be used in its broadest sense and extrinsic evidence was admissible to show the circumstances existing when the testator made his will.

The court below found that the decedent’s will was ambiguous and that it was proper for the scrivener, John J. D’Angelo, Esquire, to testify concerning the testator’s intent when he made his will. Mr. D’Angelo had prepared a will for Father McKenna in 1972. In 1979 the testator returned a copy of the will to Mr. D’Angelo with changes made on it and requested that his attorney make the noted changes which he did, and he mailed the new will to Father McKenna, as he told him that he was unable to come into his lawyer’s center city law office.

Mr. D’Angelo recalled his conference with Father McKenna in 1972 in connection with the will that he prepared for him at that time. He wanted his nephew, Robert C. Keating, the appellant herein, to have his car, religious books, television and stereo equipment and items of a religious nature. He absolutely did not discuss giving money, bank accounts or securities to his nephew. With respect to the residuary clause, Mr. D’Angelo testified:

A. He indicated to me that he had stocks, bonds and securities and that he wanted those stocks, bonds and securities sold within a short time after his death and to use the money to pay the specific requests [sic] that he had enumerated in the will and to give the rest of the money to the charities that we enumerated in the residuary clause.
Q. At that time they were what charities?
A. The Little Sisters of the Poor which was a favorite charity of his, the Sacred Heart Home for Incurable Cancer which was also a favorite charity and the Holy Redeemer Hospital which he had an affection for at that time.
A. So therefore it was your interpretation that the gifts, that the personal property consisting of the stocks, bonds and other securities were not included in the gift to Robert?
A. That’s right.
Q. What, if anything, was to be included in the gift to Robert?
MR. PRODOEHL: Objection:
THE COURT: Overruled.
THE WITNESS: Father McKenna indicated to me that he had a car. He wanted Robert to have that car. He had, I remember we had a discussion about religious books. He wanted him to have those books, his television, his stereo equipment.
BY MR. MOORE:
Q. Did he discuss—
A. Two missals, other items of a religious nature, crucifixes, and I think he told me a special crucifix of his [sic] type. That’s what he referred' to.
Q. Did he discuss giving money or bank accounts or securities to Robert?
A. Absolutely not.

The testimony of the scrivener was properly admitted. Where language of the testator is unimpeached, but equivocal or ambiguous, declarations of the testator’s intent are admissible for purposes of interpretation. Logan v. Wiley, 357 Pa. 547, 55 A.2d 366 (1947). Declarations alleged to have been made by the testator to the scrivener of his will are not admissible to alter or add to the terms of a will where a will is clear and unambiguous. Kelly Estate, 473 Pa. 48, 373 A.2d 744 (1977). If the will is ambiguous on its face, the court may look to extrinsic evidence to aid in interpretation. MacFarlane Estate, 313 Pa.Super. 397, 459 A.2d 1289 (1983). In that case the testator left “all my tangible personal property” to his wife. He bequeathed his residuary estate to the Pittsburgh National Bank, as trustee, which contended that the decedent’s gold and silver coins valued at some $19,000.00 should be placed in a trust established under the will. The argument was that the testator considered the coins to be an investment or cash and therefore constituted intangible personal property. We held that since the testator’s language was not ambiguous on its face, oral testimony could not be used to prove the testator’s intent, and the coins were bequeathed to testator’s wife and did not pass into the trust. The court held that there was no doubt but that gold and silver coins were included within the meaning of “tangible personal property”. In our case, the problem is whether intangible personal property is included within the term “personal property” as used in testator’s will in item FIFTH and we have seen that the will is ambiguous in this respect.

We are satisfied that the circumstances surrounding the testator’s will clarify the ambiguity found in the use of the phrase “all of my personal property” and that he intended the appellant to receive all his tangible personalty, other than his chalice, and that the residue of his estate, which is clearly the bulk of his estate, was to go to the two charities named in item SIXTH.

Order affirmed.

      . Article NINTH of Father McKenna’s will provided:
      NINTH: My Executor is directed within thirty (30) days after my death to secure all stocks, bonds and other types of securities which are held in my name and are located in a safe deposit box No. 17 at Industrial Valley Bank at State and Sproul Roads, Springfield, Pennsylvania. The proceeds of the sale of said stocks, bonds and securities are at once to be deposited in my savings account with the P.S.F.S. Bank in order to make the necessary cash disbursements aforementioned.

      . The statement of proposed distribution does not refer to the chalice that was bequeathed to The Society for the Propagation of the Faith and the account does not indicate that it was distributed to the Society. If this has not already occurred, the chalice should be given to The Society for the Propagation of the Faith.

      . The bequest of $5,000.00 to William F. Casey and Eleanor Casey lapsed as both beneficiaries predeceased the testator and the anti-lapse provision of 20 Pa.C.S. § 2514 does not apply to them.

      . At the hearing the following colloquy took place between Mr. Obert (counsel for the charities) and Mr. Prodoehl (counsel for the appellant):
      MR. OBERT: If your Honor please, for the record and in response to counsel’s statement, Robert Keating is claiming the entire estate, one hundred percent, including all of the tangible and intangible assets of the estate and including the chalice which was given to The Society for the Propagation of the Faith.
      MR. PRODOEHL: That was a mistake on my part, sir.
      MR. OBERT: It is a matter of record.
      MR. PRODOEHL: I’m now withdrawing it.

      . In Plank Estate, supra, the testatrix stated “Item V. All my personal property of every kind and description which I shall own at the time of my death, I direct my executor or executrix to do as he or she desires and at his or her discretion." 63 Dauphin County Rep. 4. The will provided that the "remainder of my property” shall be distributed in equal shares among named nieces and nephews. The court noted at page 5.
      The phrase ‘all my personal property’ occurring in the first sentence of Item V, cannot literally and technically mean what it says, for the reason that Items II, III and IV dispose of some personal property, to-wit: an aggregate of $1,800. The phrase 'all of my personal property’ certainly does not include this $1,800 given to others. The inconsistency is apparent. And if this inconsistency exists as to cash, why should we assume that it does not exist as to other forms of personal property, save personal effects? Certainly no mention is made of stocks, bonds or securities, a species of property owned by the decedent.

      . Father McKenna’s will of February 25, 1972, divided his residuary estate equally between Sacred Heart Cancer Home, Little Sisters of the Poor and Holy Redeemer Hospital. In the will in question, Holy Redeemer Hospital was deleted.

      . This case illustrates the need of counsel in drafting a will to use clear and precise language to set forth the testator’s intent. If counsel had merely stated in item SIXTH that testator bequeathed all of his tangible personal property, not otherwise disposed of by the will, to his grandnephew, Robert Keating, all of the difficulties in interpreting this will that we have encountered would have been avoided.


text:
    489 A.2d 868
    Roman MATUSZ, Appellee, v. SAFEGUARD MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1984.
    Filed March 8, 1985.

      James T. Moughan, Philadelphia, for appellant.
    David E. Robbins, Broomall, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   CAVANAUGH, Judge:

At issue is the question of whether the Pennsylvania Insurance Guaranty Association is liable for attorney’s fees, costs and interest assessed against an insurance company which was later suspended from its business operations as the result of an order of the Pennsylvania Insurance Commissioner.

Appellee, Roman Matusz, sought personal injury protection benefits from Safeguard Mutual Insurance Company and received an award in arbitration for lost wages and medical expenses, as well as counsel fees and costs. Thereafter, on May 29, 1979, the Insurance Commissioner of Pennsylvania issued an order which suspended the business operations of Safeguard, and at the same time sought an order directing him to liquidate the company. This was contested and it was not until April 21, 1982 that the order declaring Safeguard insolvent was entered by the Commonwealth Court. Safeguard thereby became an “insolvent insurer” under The Pennsylvania Insurance Guaranty Association Act, Act of November 25, 1970, 40 P.S. § 1701.-103(6). The Association (PIGA) thus assumed certain obligations with respect to claims against Safeguard. Thereafter, counsel for Matusz pursued his claim against PIGA. While PIGA agreed to pay the amount of medical expenses and wage losses, they refused to pay the amount awarded for attorney’s fees and costs and also resisted the claim for interest at eighteen percent calculated from the period of thirty days after the due submission of supporting documentation for the work loss and medical expense claims. The trial court heard this dispute on a stipulated set of facts and awarded the counsel fees and expenses and interest to appellee. The present appeal is from this determination.

The claim for eighteen percent interest is made pursuant to the “overdue” provision of the No-fault Motor Vehicle Insurance Act of 1974, 40 P.S. § 1009.106(a)(2) and the attorney’s fees and costs were awarded pursuant to § 1009.107 of the same Act. There is no present quarrel with the assessment of these ancillary awards as against Safeguard — the issue relates only to PIGA’s responsibility.

There is nothing in the Pennsylvania Insurance Guaranty Association Act which explicitly bears upon the entitlement of the claimant to interest or attorney’s fees and costs properly assessed under the No-fault Act. The purpose of the PIGA is stated, in part:

§ 1701.102 Purposes
The purposes of this act are:
(1) To provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims, and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer;

The scheme of PIGA is to assess insurers who write property and casualty insurance policies in Pennsylvania in order to create a fund which, under certain restrictions, is to be made available “to make payment to the extent of covered claims of an insolvent insurer existing prior to the determination [of the insolvency of the insurer]____”40 P.S. § 1701.201(b)(1)(i). In accordance with this obligation, PIGA shall:

(ii) Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if that insurer had not become insolvent.

As noted, PIGA is obliged to make payment to the extent of “covered claims,” which is, in turn, defined to include an unpaid claim “which arises under a property or casualty insurance policy of an insolvent insurer____” 40 P.S. § 1701.103(5)(a). PIGA concedes that under the above statutory scheme “it steps into the shoes” of the insolvent insurer but only to the extent of their obligations on “covered claims” and that a “covered claim” is only one which arises under the policy. It is argued that the attorney’s fees arise not from the policy but from the provisions of the No-fault Act as a result of Safeguard’s unreasonable denial of the claim.

Initially, we do not see Greenfield v. P.I.G.A., 256 Pa.Super. 136, 389 A.2d 638 (1978) relied upon by PIGA as being of significant authority. Greenfield deals with attorney’s fees for services to the insolvent insurance company while the present claim is for fees for services to the claimant against the insurer, which we have demonstrated has its basis in the No-fault Act and grows out of assertions of a rightful claim under the policy. The same argument, that is, that the obligation arises not under the policy, but by reason of the No-fault Act, is made with respect to interest payments, and appellant seeks to draw support from our decision in Sands v. P.I.G.A., 283 Pa.Super. 217, 423 A.2d 1224 (1980). Although in Sands we did indeed state that PIGA is not the “legal successor” to the insolvent company and that it is required to pay only to the extent of covered claims, we simply held that it was obliged to pay on the verdict against the insolvent company only to the extent of the insolvent’s policy and that covered claims were defined to exclude any amount in excess of the applicable policy limits. Since the payment of interest would have exceeded this limit, it was disallowed. We therefore do not see Sands as controlling the present issue.

Referring to the statutory definition of a covered claim, we see that it is one “which arises under” [an insolvent insurer’s policy]. The statutorily imposed attorney’s fees, costs and interest can easily be said to “arise under” what was admittedly a validly asserted claim against Safeguard.

If we interpret the PIGA Act and No-fault Insurance Act as relating to the same class of persons — victims of accidental injuries, they would be construed in pari materia and the two statutes should be construed as one. 1 Pa.C.S.A. § 1932, Statutes in Pari Materia. Thus, provisions of the no-fault law for the payment of counsel fees, costs and interest can be read in concert with the PIGA provision which states as its purpose “To provide a means for payment of covered claims, ... and to avoid financial loss to claimants ... as a result of [insurer] insolvency,” thus requiring that we allow for the payment of such additional benefits to the claimant. Moreover, one can assume that the insurer faced with insolvency is more likely to resist the payment of claims, thereby delaying the payment of the claims and often forcing the claimant to secure counsel to assert the claim. Under these circumstances, fees and interest clearly arise out of the claim and must be recouped in order to allow the claimant to “avoid financial loss” as a result of the insolvency. The law creating PIGA provides that the association shall be “deemed the insurer” and have “all rights, duties, and obligations of the insolvent insurer.” To now deny appellee properly assessed attorney fees, costs and interest would, we think, improperly excuse PIGA from its full statutorily imposed duties and obligations.

Finally, any argument that the payment of interest is a penalty and thus should be strictly construed is refuted by Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981) where the Supreme Court stated “[w]hether the 18% interest is a ‘penalty’ (it is not____)” 493 Pa. at 154, 425 A.2d at 421.

We disagree, however, that PIGA should he responsible for the payment of interest during the pendency of the insolvency proceedings and after Safeguard’s suspension. While it may fairly be said that PIGA should be deemed the insurer (Safeguard) to the extent of its obligation on the covered claims and, therefore, must bear the cost of the insurer’s refusal to timely pay the claim, it would, on equitable principles, be unfair to fix upon PIGA interest for the period of the insolvency proceedings, a period during which neither Safeguard nor PIGA could pay the claim.

Affirmed in part and reversed in part. Remanded for the entry of judgment calculated in accordance with this Opinion. Jurisdiction relinquished.


author: WICKERSHAM, Judge:

text:
    489 A.2d 871
    Harold H. HOGG, Harold H. Hogg, Inc., Clearview Associates, James Hogg and David Hogg, Ruth Hogg and York County Industrial Development Authority, Appellants, v. GEORYN VENTURES, LTD. v. KUHN REALTY, INC., Arthur S. Kuhn, Kenneth A. Kuhn and Nancy Kuhn Fodor.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed March 8, 1985.
    Petition for Allowance of Appeal Denied Aug. 19, 1985.

      Steven M. Carr, York, for appellants.
    John H. Chronister, York, for Georyn, appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WICKERSHAM, Judge:

Harold H. Hogg, Harold H. Hogg, Inc., Clearview Associates, James Hogg, David Hogg, Ruth Hogg, and York County Industrial Development Authority appeal from the order of the Court of Common Pleas of York County refusing their request to dismiss the action brought against them by Georyn Ventures, Ltd.

Appellants accurately summarize the procedural history of this case, as follows:

On December [21], 1979, Plaintiff-Appellee Georyn Ventures, Ltd. (hereinafter “Georyn”) filed a complaint in assumpsit against Defendants-Appellants Harold H. Hogg, Harold H. Hogg, Inc., Clearview Associates, James Hogg, David Hogg, Ruth Hogg, and York County Industrial Development Authority (hereinafter “Hogg”).
On September 18, 1980, Georyn belatedly filed an application for an extension to certify the case for trial under the then-existing Pa. Supreme Court Order regarding prompt certification for trial of civil cases, known as the “240-Day rule,” 486 Pa. XXXVI. On September 30,1980, Defendants filed an answer opposing the application for an extension and further prayed that the complaint be dismissed.
On January 29, 1981, the Honorable Joseph E. Erb refused and denied Georyn’s motion for an extension. The Court, however, did not order that the action be dismissed. On February 27, 1981, Georyn filed a notice of appeal to the Superior Court and on March 6, 1981, the Pennsylvania Supreme Court vacated the “240-Day Rule.” On April 7, 1981, Judge Erb issued an ex parte order setting aside its January 29, 1981 order in light of the vacation of the ‘240-Day Rule.’
On May 7, 1981, Hogg, filed a petition reasserting its demand that the complaint be dismissed, which was opposed by Georyn. By order dated June 5, 1981, the Court below again set aside its order of January 29, 1981 and refused to dismiss the action.
On November 4, 1982, Judge Erb, in response to a petition by Defendants, issued a rule to show cause why the action should not be dismissed in light of the Commonwealth Court’s decision in Adams v. Solanco School District, 68 Pa. [Commw.] 343, 449 A.2d [115] (1982). By an order dated April 7, 1983, the Court denied and refused the request to dismiss the action.
On April 26, 1983, the Court issued an order certifying the case for an interlocutory appeal by permission under 42 Pa.C.S.A. § 702(b). On May 5, 1983, Defendants filed a petition for permission to appeal with the Superior Court, which petition was granted by a per curiam order dated December 6, 1983.

Brief for Appellants at 3-4.

The question before us on appeal is whether the lower court erred in refusing to dismiss appellee’s action pursuant to the 240-Day Rule. The 240-Day Rule, which was promulgated by the Pennsylvania Supreme Court on November 19, 1979, provided in pertinent part:

1. Prompt Certification for Trial
(a) In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1, 1980, such documents must be filed not more than 240 days after the action is commenced.
(b) Prior to the expiration of the period limited in Paragraph (a), any party may apply for extension of such period. The application must be served on all other parties and must set forth the grounds for the request and the length of extension required. The court may grant the extension only upon finding good cause. The order of extension, if any, shall set forth the new date for certifying trial readiness, which may be sooner than that requested, but may not be later.
(c) If the documents are not filed within the time limits above, the court, with or without motion by any party, shall require that good cause by shown why the case should not be dismissed for want of prosecution.

Reprinted in 486 Pa. XXXVII.

This rule was vacated by the supreme court on March 6, 1981.

The lower court found that dismissal under the 240-Day Rule required two procedural steps: “First, the Court’s being requested to extend the period of time within which to bring an action to trial, and second, the Court’s dismissal of an action for want of prosecution.” Lower ct.op., 4-7-83, at 3. Instantly, the court refused to extend the period of time within which to certify as ready for trial, but did not dismiss the action. The plaintiff appealed to our court. While this appeal was pending, the Pennsylvania Supreme Court vacated the 240-Day Rule. The lower court then held that since the instant action was never dismissed while the 240-Day Rule was in effect, the court does not have authority to dismiss the action now. We agree.

The 240-Day Rule was a per se rule of dismissal giving trial courts the authority to dismiss civil cases upon compliance with the procedure set forth in the rule. Instantly, the court never dismissed appellee’s case pursuant to the rule. Obviously, the court cannot now dismiss the case pursuant to a rule which is no longer in effect.

Appellants argue, however, that Adams v. Solanco School District, 68 Pa.Commw. 343, 449 A.2d 115 (1982) is controlling and that appellee’s action must be dismissed in accordance with that case. In Adams, the commonwealth court held that the Pennsylvania Supreme Court’s order of March 6, 1981 vacating the 240-Day Rule was not to be given retroactive effect. While we agree with the outcome of the Adams case, the decision therein is not applicable to the case at bar. In Adams, the trial court had dismissed the plaintiffs’ action prior to the supreme court’s order vacating the 240-Day Rule. Instantly no order of dismissal has ever been entered. Again, we find that, regardless of what the lower court could have done at an earlier time, the court cannot now dismiss appellee’s action pursuant to a rule that is no longer in effect.

Order affirmed.

      . Appellants separate this issue into three distinct questions:
      A. Whether the Commonwealth Court’s decision in Adams v. Sotanco School District requires a dismissal of Plaintiffs' actions.
      B. Whether the instant action must be dismissed because of the Plaintiffs’ noncompliance with the 240 day rule. .
      C. Whether the 240 day [rule] required two procedural steps: first, a ruling on an extension, and second, a ruling on dismissal.
      Brief for Appellants at 2.

      . Appellants’ third issue questions whether such a two step procedure is actually required. We do not herein decide whether such a procedure was required by the rule. Nevertheless, we find that Judge Erb’s interpretation of the requirement of the rule was neither illogical nor unreasonable. Thus, we find no abuse of discretion in Judge Erb’s decision to employ the two-step procedure. See Johnson v. Keystone Ins. Co., 299 Pa.Super. 187, 445 A.2d 517 (1982) and Drakes Mills Dev. Co. v. Northwest Pa. Bank & Trust Co., 295 Pa.Super. 487, 441 A.2d 1338 (1982), for cases involving review of dismissals on the basis of the 240 Day Rule in which an abuse of discretion standard was applied.

      . In their brief, appellants argue that the lower court would have dismissed the case while the rule was still in effect if appellee had not filed a premature appeal to this court on February 27, 1981. We note, however, that appellants took no steps to quash the allegedly premature appeal or otherwise request the matter be remanded to the lower court for further proceedings, such as a petition to dismiss. Having failed to take, any steps to challenge appellee’s allegedly premature appeal, appellants cannot now complain that the rule was vacated while it allowed the appeal to remain pending.


author: BROSKY, Judge: SPAETH, President Judge,

text:
    489 A.2d 873
    Henrietta THORNTON, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1984.
    Filed March 8, 1985.
    Petition for Allowance of Appeal Denied Aug. 9, 1985.

      Anthony J. Seneca, Washington, for appellant.
    William M. Radcliffe, Uniontown, for appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   BROSKY, Judge:

The appeal was taken by the plaintiff in this case from the trial court’s order of March 31, 1983, which denied plaintiff’s motion for summary judgment, and granted defendant’s motion for summary judgment. Appellant argues that the trial court erred in refusing to award No-Fault benefits to her. We affirm.

As the trial court noted in its opinion, there was no dispute as to the facts. Appellant was injured at her place of employment, the New Stanton Volkswagen Plant, when she was struck by an automobile which was being driven by another employee inside the Emissions Building from the warm up booth to the emissions testing booth. Appellant was walking to the coffee break area at the time she was struck. The lower court entered summary judgment against appellant, ruling that appellant was not a “victim”, “an individual who suffers injury arising out of the maintenance of use of a motor vehicle,” since “maintenance or use of a motor vehicle” “does not include conduct within the course of business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises____” Section 103 of the Act. We agree with the lower court’s finding that this case falls within the above exclusion.

The word “servicing” is not defined in the No-Fault Act. One of the definitions of the word “service” provided in Webster’s unabridged Third New International Dictionary, however, is “action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something____” It seems clear to us that the vehicle in question was being “serviced” at the time of the accident, “within the course of a business,” since it was being tested and prepared for use as a vehicle for the transportation of people. In addition, we note that the definition of the phrase “maintenance or use of a motor vehicle” includes the language “as a vehicle.” This is an important part of the definition. At the time of the accident, the vehicle was not being operated in typical fashion for the transportation of persons, but was being moved from one place of servicing to another. The Act’s Findings and Purposes, Section 102, speaks of “the transportation of individuals by motor vehicle over ... highways.” Considering the Act as a whole, we believe that the interpretation given the Act by the lower court was correct. The No-Fault Act was not intended to cover an employee of a car manufacturer who is injured on the employer’s premises by another employee who is merely moving the car within a building from one servicing booth to another.

Judgment affirmed.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

I concur in the majority’s order because, in my view, a vehicle not yet released from the factory is not yet a “motor vehicle” within the No-Fault Act. This was not the trial court’s view, but a correct decision will be sustained if it can be sustained for any reason. Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955).

      . Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.-101 et seq.

      . Appellant actually divides her argument into three parts. We find it unnecessary to treat each part as a separate issue. Furthermore, we find appellant's third issue — whether or not appellant herself was "in the process of performing any functions of ... servicing ... the vehicle" — to be totally meaningless.

      . "Servicing,” of course, is merely the gerund of “service,” and means "the act of providing service.”

      . See Monaghan v. Pa. Mfrs’. Ass’n. Ins. Co., 301 Pa.Super. 419, 447 A.2d 1037 (1982).