author: MONTGOMERY, Judge:

text:
    446 A.2d 1330
    REDMOND FINISHING COMPANY, INC., Appellant, v. Alan GINSBURG and Sheila B. Ginsberg, his Wife, and Alpha Gamma, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1982.
    Filed June 18, 1982.
    Petition for Allowance of Appeal Denied Oct. 15, 1982.

      Howard M. Spizer, Scranton, for appellant.
    Mark Steven Love, Stroudsburg, for appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal was filed by the Plaintiff-Appellant, Redmond Finishing Company (hereinafter referred to as “Redmond”) after the lower court sustained a preliminary objection asserted by the Defendant-Appellees, and dismissed the action with prejudice. This case was commenced as an action in equity in the lower court by Redmond, seeking to have a constructive trust imposed upon certain real estate in Monroe County, which had allegedly been transferred by the Appellee Alan Ginsburg to the Appellee Alpha Gamma, Inc.

This litigation is but the latest in a series of actions which have been instituted as a result of the business transactions and activities of Alan Ginsburg. Of particular significance to our analysis of the issues presented by this appeal is a separate Monroe County action commenced in equity at No. 218 January Term, 1978. That case was instituted by Alan Ginsburg, seeking an accounting and the appointment of a receiver to manage the business affairs of Redmond during the pendency of certain other litigation then pending in the State of New York. In response, Redmond filed an answer as well as a counterclaim which alleged, inter alia, that Alan Ginsburg had fraudulently misappropriated in excess of One Million ($1,000,000.00) Dollars from Redmond. Alan Ginsburg filed a preliminary objection in the nature of a demurrer to Redmond’s counterclaim. The Monroe County Common Pleas Court, by the Honorable James R. Marsh, President Judge, dismissed the preliminary objection, finding that the demurrer had no merit because Redmond’s misappropriation counterclaim bore a direct relation to the issues presented in the complaint in that case, and thus was properly assertable in the equity action under Pennsylvania Rule of Civil Procedure 1510(a).

As set forth above, Redmond initiated the instant action seeking to have a constructive trust imposed upon real estate which had allegedly been transferred by Alan Ginsburg to the Appellee Alpha Gamma, Inc. That corporation was purportedly controlled by Mr. Ginsburg. Of particular significance, we note that Redmond’s complaint asserts that the properties in issue were purchased with the funds, approximately over One Million ($1,000,000.00) Dollars, which Ginsburg had allegedly misappropriated from Redmond. The Appellees, by their preliminary objection, contended that this action should be dismissed because Redmond had earlier elected to pursue a monetary remedy, concerning the alleged misappropriation by Alan Ginsburg, in the counterclaim Redmond asserted in the litigation already pending at No. 218 January Term, 1978.

The lower court found merit in the Appellees’ contention, and we detect no error in the conclusions reached. It is certainly clear that the Appellant has made an election to try to seek a remedy for the losses it suffered, in alleged misappropriations by Alan Ginsburg, in the claim for monetary damages it previously asserted in the counterclaim. When a claim at law, arising out of the same controversy and covering the same issues, is already pending before the court, a subsequent complaint in equity may be properly dismissed. This is because there is in existence for the pleading party a full, complete and adequate non-statutory remedy at law. See Myshko v. Galanti, 453 Pa. 412, 309 A.2d 729 (1973), cited by the lower court, where an analogous situation was presented, and where a similar conclusion was reached by our Supreme Court. We find the holding in that case to be controlling here.

The Appellant seeks to distinguish the instant situation on the grounds that: (1) there are additional parties named as defendants here—Shiela B. Ginsburg and Alpha Gamma, Inc.; and (2) the other case involves a claim for money damages while the instant one involves a request for a constructive trust. We find such distinctions to be irrelevant. Redmond’s effort, in both cases, has been to remedy the losses it allegedly suffered as a result of misappropriations by Alan Ginsburg. Once it chose to follow the path of a damage claim, it foreclosed a subsequent effort to pursue the same remedy in an equity action.

We find that the lower court properly concluded that the Appellant, in asserting its earlier counterclaim had made an election of remedies, and essentially bound itself to the proposition that it has an adequate, non-statutory remedy at law. Thus, the lower court’s dismissal of the Appellant’s action was correct.

Affirmed.

      . Rule 1510, concerning counterclaims, provides:
      (a) A defendant may plead as a counterclaim only a cause of action, whether equitable or legal, which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose. A counterclaim shall not be subject to the objection provided in Rule 1509(c).
      (b) A counterclaim shall be pleaded and tried as an action in equity.


source: Caselaw Access Project

author: MONTGOMERY, Judge: SPAETH, Judge,

license: Public Domain

text:
    446 A.2d 1332
    COMMONWEALTH of Pennsylvania, v. Edward J. BULOVAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed June 18, 1982.
    Reargument Denied Aug. 24, 1982.
    Petition for Allowance of Appeal Denied Dec. 3, 1982.

      Burton A. Rose, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

Appellant Edwárd Bulovas was convicted, following a jury trial, of rape, involuntary deviate sexual intercourse, criminal conspiracy and kidnapping. Following the denial of post-trial motions and sentencing, he filed a direct appeal. This court affirmed per curiam the judgment of sentence. Commonwealth v. Bulovas, 251 Pa.Super. 592, 381 A.2d 892 (1977). Appellant’s Petition for Allowance of Appeal was denied by our Supreme Court on May 2, 1978. On December 12, 1978, Appellant filed a Petition under the Post-Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq. Following a hearing, the Honorable Edward J. Blake denied the requested relief, and Appellant filed the instant appeal.

The incident for which Appellant was convicted began when his co-defendant John Horan abducted a sixteen-year-old girl at gunpoint. He dragged her into a car where Appellant was waiting. After driving to an isolated area, both men forced her to commit oral intercourse and raped her. Approximately four hours after the initial abduction, the victim was released.

Horan was tried, convicted and sentenced prior to Appellant’s arrest. Following his sentencing, Horan gave a statement to Detective Nicholas Bratsis, identifying Appellant as his co-defendant. Horan then testified against Appellant at his trial.

The sole claim on this appeal is that Horan’s testimony was induced by a Commonwealth promise to write a letter to the parole board verifying Horan’s cooperation and that this “promise” had been concealed from the jury. We disagree and affirm.

In the PCHA proceeding, Appellant had the burden of proving grounds for relief. Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Commonwealth v. Stokes, 294 Pa.Super. 529, 440 A.2d 591 (1982). Assistant District Attorney Michael Stiles testified at the PCHA hearing that:

. . . there was nothing we could do about the sentence, he had already been sentenced .... I recall in essence telling him that this was the right thing for him to do. I told him if he testified, there was nothing I could about the sentence. The only thing I might be able to do is write to the Parole Board at the time that he was being considered to tell them in fact that he had testified .... N.T. 44-45.

Appellant’s attorney testified that his recollection was hazy but that he did recall trying to obtain a commitment from the District Attorney’s Office that would be of greater benefit to his client. N.T. 16-17.

At most, this evidence establishes that the District Attorney’s office might have agreed to confirm that Horan testified against Appellant, a fact which Horan could easily have made known to the parole board without any assistance whatever from the District Attorney’s office. We agree with the trial court that this evidence is insufficient to show that any promises or threats were made to Horan to induce his testimony against Appellant.

Affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I do not agree with the majority that appellant’s claim is without merit. On the contrary, I find it persuasive, and believe that we should reverse the order of the lower court and grant a new trial.

Appellant’s claim is that he was denied a fair trial because the jury was not told that an assistant district attorney had promised appellant’s co-defendant, John Horan, to write a favorable letter to the parole board if he testified against appellant. The lower court rejected appellant’s claim, on the following reasoning:

The defendant also contends that a witness who testified against him at trial, one, John Horan, changed his testimony as a result of a “deal” being offered by the District Attorney. There is absolutely no merit to this contention. Mr. Horan was a co-defendant who had testified at trial and denied any complicity in the crimes charged. Nevertheless, he was convicted and sentenced. He received a prison sentence of no less than seven and one-half nor more than fifteen years.
Thereafter, and we might add well after the period when the court had the power to alter the defendant’s sentence, the co-defendant, Horan, agreed voluntarily to testify at Petitioner’s trial. Horan did so testify and implicate the Petitioner in the crimes charged. It is quite clear from a multitude of witnesses called at the evidentiary hearing before us that there was no deal, no agreements, no threats, no coercion involved. Mr. Horan came forward to testify for his own motives, but not as a result of any promise made by the District Attorney’s Office. Indeed, as stated hereinabove, the co-defendant, Horan, had already been sentenced and that sentence could not be changed legally at the time Horan testified or indicated to the District Attorney’s Office that he would testify against the Petitioner herein.
Slip op. at 4-5.

Although the majority subscribes to this reasoning, I cannot.

First, the reasoning suggests that the lower court did not understand appellant’s claim. If appellant were claiming that the quid pro quo for Horan’s testimony was a promise to request a short sentence, then, to be sure, the fact that Horan had already been sentenced when he testified against appellant would be relevant. For then it could be said that Horan’s testimony had not been induced by the promise. Since he had already received a long sentence, he would know, when he testified, that the assistant district attorney’s promise had been worthless. But appellant does not claim that the quid pro quo was a promise to request a short sentence. He claims that the quid pro quo was a promise to send a favorable letter to the parole board. The fact that Horan had already been sentenced when he testified against appellant is therefore irrelevant. Since Horan had been sentenced, the assistant district attorney could not promise a short sentence. But he could promise a favorable letter, which might result in Horan’s early release from prison. The issue is whether that promise induced Horan’s testimony against appellant at trial.

Second, the Commonwealth argues that appellant “presented no evidence that [the assistant district attorney] even wrote such a letter to the Parole Board ... or that the Board ever received such a letter . . . . ” Brief for Commonwealth at 6. This argument equally misses the point, which is not whether the Commonwealth kept its promise to Horan but whether by making the promise it induced him to testify.

Finally, appellant’s claim is supported by the record. Indeed, I agree with appellant’s statement in his brief that the conclusion of the lower court was in disregard of the testimony. Appellant’s Brief at 13.

At the hearing before the lower court it was uncontroverted that an assistant district attorney had met with Horan and had told him that if he testified against appellant, a favorable letter would be written to the parole board. The assistant district attorney himself, Michael Stiles, who was then Chief of the Felony Jury Unit, testified that a meeting with Horan, his counsel, Richard DiMaio, and another assistant district attorney took place in his City Hall office, N.T. 1/3/80, 43, for the purpose of getting Horan to testify against appellant because Horan “was important to the case.” Id. 48. Recounting his recollection of the meeting, Mr. Stiles said:

Q. Do you recall what if anything you said to Mr. Horan concerning his testimony at the trial of Edward Bulovas?
A. My recollection is that this was after the time that Mr. Horan had been tried, after the time that Mr. Horan had been sentenced. There was indication given to me that Mr. Horan had named Mr. Bulovas as the responsible party in this matter and I was bringing him down to see whether he would testify against Mr. Bulovas. I in essence asked him that. I recall Mr. Horan initially complaining about that he got a long sentence, that his wife was probably going to leave him, that he would have trouble, might have, probably be endangered in prison if he testified. I have a recollection, a specific recollection of telling him that I didn’t really feel sorry for him as a result of what he had done to the complainant in this case, that there was nothing we could do about the sentence, he had already been sentenced. If he was worried about his security or safety, that we had had other persons in prison testify against defendants and we’ve been able to protect them and I recall trying to appeal to him that if there was someone else responsible for this as well as he, that he should not be the only person in jail. In fact, I recall in essence telling him that this was the right thing for him to do. I told him if he testified, there was nothing I could do about the sentence. The only thing I might be able to do is write to the Parole Board at the time that he was being considered to tell them in fact that he had testified, if he did agree to testify. And I have a recollection of telling him that I didn’t even know whether that would affect the parole decision but if he did that, we’d do that. And I recall him at the end of the meeting, I don’t know whether he left and came back or not, but I recall him just telling me that he would testify. He looked up and he was sort of a pathetic figure, if I recall. He seemed to me to be acting as though he was going to do the right thing, that he would testify, not to worry about it. I even recall saying something like, well, we have to know and you can’t change your mind. Before trial we have to know if you’re firm about this and he said yes, don’t worry about it, he would testify.
Id. 44-45 (emphasis supplied).

Mr. Stiles’s testimony was corroborated by Horan’s counsel, Mr. DiMaio:

Q. And can you recall the substance of that meeting?
A. Yes. The substance of the meeting was that the District Attorney’s office really didn’t have anything to offer him. He had already been sentenced. I don’t recall how much time had elapsed but it was well over the period of time in which we could go back to Judge Guarino and get the sentence changed. And as I recall, the most that could be offered was some consideration, some letter that would be sent to the Parole Board in favor of Mr. Horan as far as his parole status was concerned and something almost in terms of—I’m a little bit hazy on this—almost an implied threat that had he not testified, that perhaps a letter could be sent indicating that he was not cooperating with the Commonwealth, although I’m not sure whether that was actually said or I felt that that could have been a possibility. As I attempted to reap some type of commitment from the District Attorney’s office which would be of greater benefit to John Horan other than a letter to the Parole Board so that we could get back in front of Judge Guarino, have me attempt to have Judge Guarino consider the sentence, although the law doesn’t actually provide that, if the District Attorney’s office didn’t interpose an objection, it could have been done. As I understand, it’s been done in the past. However, Mr. Stiles was not agreeable to that so it was simply left with the idea that we would do you the favor of sending a letter to the Parole Board in your behalf if you testified and if you didn’t testify, you know, I don’t know that anything was going to happen.
Id. 16-17.

On cross-examination Mr. DiMaio commented further on what he regarded as the assistant district attorney’s implied threat that if Horan did not testify against appellant, an un favorable letter would be sent to the parole board:

Q. And during the course of the conversation when Mr. Horan was present was he told by either of the Assistant District Attorneys or one of them that the only thing that they could do for him would be to write to the Parole Board?
A. Yes.
Q. And would it be accurate to say that Mr. Horan was present when it was indicated to him by either one of the Assistant District Attorneys that if he did not cooperate that they would write to the Parole Board anyway and oppose parole?
A. I’m not sure whether this was something that Mr. Stiles said. Again, I’m not sure or if it was something that was implied from what he said or something that I inferred or whether or not there was any kind of threat to that effect. I simply don’t recall.
Q. We don’t want you to put a label on it, but would it be correct to say at least from the general conversation, from the tone of the conversation, you as a practitioner inferred that that was what either or both were saying to Mr. Horan and to you?
[An objection was overruled.]
A. Yes.
Id. at 31-32.

It is settled that due process is violated where an offer of leniency made in exchange for a witness’s testimony is not made known to the jury. In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), a co-defendant testified against his accomplice that he had not been made a promise in return for his testimony when in fact the prosecutor had offered to recommend reduction of his sentence. The Court there said:

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.
Id. at 269, 79 S.Ct. at 1177.

Similarly, our Supreme Court has held that due process requires that the Commonwealth disclose an offer of leniency made to a witness in exchange for his testimony. Com monwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978). When such an offer has been made but denied at trial, “rudimentary demands of justice dictate that a defendant’s conviction be reversed and a new trial granted . . . . ” Id., 477 Pa. at 238, 383 A.2d at 911. Accord, Commonwealth v. Kurtz, 219 Pa.Superior Ct. 1, 280 A.2d 410 (1971) (prosecutor had duty to disclose offer of lenience made to accomplice, for knowledge of offer may affect jury’s evaluation of credibility of witness).

This principle is especially compelling where, as here, the witness’s testimony is crucial to the Commonwealth’s case. The record shows that without Horan’s testimony, the only evidence linking appellant with the crime was the victim’s uncertain identification of him. She had been unable to identify appellant with confidence at a line-up, at which she picked out appellant but said, “I don’t know. Number 2 sort of looks like him. But I don’t know.” N.T. 9/20/76, 1.120 (testimony of victim); N.T. 9/22/76, 3.19 (testimony of officer at line-up). She had also been unable to identify appellant in a photo array a few months after the incident. N.T. 9/22/76, 3.44 (testimony of Detective Bratsis). Appellant’s defense was that he had been wrongly identified, N.T. 9/22/76, 3.99 (closing argument of defense counsel), and in support of this defense there was evidence that Horan had a motive to lie, for his brother, who resembled appellant, had been involved with appellant’s wife before her marriage to appellant. 9/21/76, 2.142-2.144. In response to appellant’s defense, the prosecutor emphasized in her closing argument that Horan “had nothing to gain in this case,” N.T. 9/22/76, 3.131, and that “he has already been sentenced, and he had already been serving that sentence, and in no way could his testimony here, in any way, affect that sentence, and, in fact, he was sentenced before he ever talked to Detective Bratsis, and his sentence was never changed by the Court.” Id. 3.125. See also, id. 3.126, 3.127, 3.128, 3.131. This argument might not have been so persuasive if the jury had known of the Commonwealth’s promise to Horan that if he testified against appellant, a favorable letter would be sent to the parole board, perhaps resulting in his early release from prison.

I should reverse and grant a new trial.

      . The Commonwealth argues that appellant has waived this claim for failing to present it on direct appeal or in his PCHA petition. I do not agree. Nothing in the record suggests that appellant knew of the Commonwealth’s promise to Horan in time to raise the issue on direct appeal. It was the Commonwealth’s duty to disclose this promise at trial. Commonwealth v. Kurtz, 219 Pa.Superior Ct. 1, 280 A.2d 410 (1971). Not having done so, it is in no position to argue that appellant should be penalized for learning about the promise only afterwards. Also, contrary to the Commonwealth’s assertion, the claim was raised in appellant’s PCHA petition. Petition at 2.

      . At trial, Horan denied the fact that any promises had been made to him. N.T. 9/21/76, 2.104.


text:
    446 A.2d 1337
    COMMONWEALTH of Pennsylvania v. Paul Gary HASTINGS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1982.
    Filed June 18, 1982.
    Petition for Allowance of Appeal Denied Oct. 8, 1982.

      John Louis Lachall, West Chester, for appellant.
    Joseph W. Carroll, III, Deputy District Attorney, West Chester, for Commonwealth, appellee.
   MONTGOMERY, Judge:

Appellant Paul Gary Hastings was convicted of third degree murder and possession of an instrument of crime following a jury trial before the Honorable John M. Wajert. The trial court granted appellant’s Motion for a New Trial. Upon reargument before the court en banc, however, all post-trial motions were denied. Following sentencing, appellant filed this direct appeal. We reverse and grant appellant a new trial.

Appellant was arrested and charged with the shooting death of his wife Margaret. They had been experiencing serious marital difficulties for some time. Appellant’s inability to deal with these problems necessitated psychiatric treatment, which included two commitments to Delaware State Hospital, one commitment to Sheppard Pratt Hospital, Baltimore, and two stays at private institutions, After appellant' shot his wife, he turned the gun on himself, blowing away his jaw, chin, teeth, cheeks, nose and part of his tongue. Appellant did not deny shooting his wife. His defense was that, at the time of the shooting, he was insane under the M’Naghten test.

Appellant, through counsel, requested that the trial court explain in its instructions to the jury that, if they found him not guilty by reason of insanity, the trial court could direct the Commonwealth to petition for appellant’s commitment to a state mental institution. The trial court refused to do so and the jury found appellant guilty of third degree murder. Fifteen days after this verdict, the Supreme Court of Pennsylvania decided, in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), that such an instruction is required when insanity is raised as a defense. On the basis of Mulgrew, Judge Wajert granted appellant’s Motion for a New Trial. On reargument, the court en banc held that Mulgrew should not be applied retroactively and denied appellant’s post-trial motions. We disagree and reverse.

The Commonwealth first argues that appellant’s failure to take a specific exception to the charge has waived this issue. We disagree. Appellant timely filed the requested point for charge and the trial court refused it. Appellant also preserved the issue in his post-trial motions. This is sufficient to preserve the issue for our review. Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975).

The precise issue was decided by our Supreme Court in Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). In Brown, the Supreme Court stated:

“Because appellant’s conviction was not yet final at the time Mulgrew was decided, . . . [he] is entitled to a new trial with an appropriate jury instruction. ...” Commonwealth v. Brown, 494 Pa. 380, 382-83, 431 A.2d 905, 906 (1981).

The Commonwealth argues however that Brown is not applicable to the instant case. In Brown, unlike here, the prosecutor suggested, in his closing, that a verdict of not guilty by reason of insanity would result in putting Brown back on the street. The Commonwealth claims that the decision in Brown resulted from this misleading remark by the prosecutor. The majority opinion, however, neither states nor implies that such is the case. Rather, the basis of the Court’s decision is that “a court . . . must apply the law as it exists at the time of its decision.. . . ” Commonwealth v. Brown, 494 Pa. 380, 384, 431 A.2d 905, 907 (1981). The long line of cases cited in Brown all stand for this proposition that, when the law is changed while a case is pending on appeal, the new law must be applied. Appellant is entitled, under Brown, to a new trial with the correct instruction.

Judgment of sentence vacated and case remanded for a new trial. We relinquish jurisdiction.

      . Because of our disposition on this issue, we do not reach the other issues raised by appellant. These are: (1) that the charge to the jury incorrectly stated that they had to find appellant incapable of knowing what he was doing to find him insane; and (2) that the jury should have been told they could return a “mercy” verdict of voluntary manslaughter.

      . The Commonwealth buttresses its claim by citing the concurring opinion of Justice Nix. Since Justice Nix felt compelled to set forth this reasoning in a separate opinion, we cannot agree that it in any way formed the basis of the majority opinion.


text:
    446 A.2d 1339
    UNIVERSITY OF DOMINICA, Appellant, v. PENNSYLVANIA COLLEGE OF PODIATRIC MEDICINE.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1982.
    Filed June 18, 1982.

      William S. Greenawalt, New York City, for appellant.
    David N. Hofstein, Philadelphia, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal was filed by the Plaintiff-Appellant, the University of Dominica, after the lower court sustained preliminary objections, filed by the Defendant-Appellee, and dismissed the Appellant’s Complaint. The lower court’s action was based upon its finding of merit the Appellee’s contention that the Appellant lacked the capacity to sue in our Commonwealth, as it did not possess a required Certificate of Authority. We can discern no error in the lower court’s conclusion.

From our review of the pleadings, it appears that the Appellant is a foreign corporation, organized and existing under and pursuant to the laws of Dominica, one of the Leeward Islands of the West Indies group. It instituted suit in the lower court as an action in assumpsit against the Appellee, the Pennsylvania College of Podiatric Medicine, which is a Pennsylvania corporation. The complaint asserted that the Appellee educational institution had breached an oral promise to provide instruction services to certain of the Appellant’s students. We note as particularly significant that the complaint averred that the Appellant “. . . is registered to do business in the Commonwealth of Pennsylvania.” The Appellant’s assertion that it was “registered” to do business in our Commonwealth was challenged in the preliminary objections filed by the Appellee. Maintaining that there was no such “registration”, the Appellee argued that the Appellant was therefore not entitled to maintain its action in the courts of our Commonwealth.

The record indicates that after the preliminary objections were filed, the Appellant filed an application with the Secretary of State requesting a Certificate of Authority to do business within the Commonwealth. Because the Appellant represented itself as an institution of higher learning, its application was forwarded to the Department of Education. After appropriate consideration, the Secretary of Education declined to extend approval, and the application was denied. The lower court withheld action on the preliminary objections until the application was denied, and thereafter issued its order sustaining the preliminary objections, based upon the factual averments set forth in the pleadings, as well as deposition testimony and other evidence made a part of the record by the parties.

We first examine the Appellant’s contention that it is not doing business in our Commonwealth, and therefore can maintain this action without a Certificate of Authority to do business from the Department of State. The Appellant only took this position after it failed in its attempt to obtain a Certificate. Initially, we must take cognizance of the Appellant’s admission in its answer to the truth of the averment in the Appellee’s preliminary objection that: “At all times relevant hereto, plaintiff was and is doing and transacting business in the Commonwealth of Pennsylvania.” Further, the deposition testimony of an officer of the Appellant reflected that the Appellant has actively solicited students in Pennsylvania and has maintained a working business relationship with several hospitals in our State. More specifically, some of the Appellant’s students have served so-called “clinical rotations” in Pennsylvania hospitals with which the Appellant had established agreements. The Appellant was negotiating with other hospitals in the Commonwealth for clinical rotations and educational services for its students, for which the Appellant would pay the hospitals involved.

The test of whether a corporation is “doing business” in the jurisdiction is a question of fact, to be resolved on a case-by-case basis. Wenzel v. Morris Distributing Co., 439 Pa. 364, 266 A.2d 662 (1970). The Appellant’s admssion of that status in its answer to the preliminary objections is clearly binding and cannot be ignored. See Grubbs v. Dembec, 241 Pa.Super. 18, 359 A.2d 418 (1976). In light of that and of the other factors noted above, we believe that the facts presented clearly justify the finding by the lower court that the Appellant was “doing business” in our Commonwealth. We therefore reject the Appellant’s initial claim of error.

It is also argued that the Appellant will be deprived of its right to due process of law, and interstate commerce will be unduly burdened if it is denied access to our Pennsylvania courts for this action. We can dispose of these contentions without extensive analysis. The Supreme Court of the United States has long held that an individual state may require registration and impose reasonable regulations on foreign corporations, doing business within its jurisdiction, without violating Constitutional principles. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 19 L.Ed. 357 (1868). Moreover, the Court has upheld the denial of access to a state court by a foreign corporation, engaged in business within the state, which had failed to obtain the required qualification from the state’s appropriate authorizing agency. See Eli Lilly & Co. v. Sav-on Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961); Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227 (1944). These holdings are controlling and we therefore reject the Appellant’s arguments as to Constitutionality.

The order of the lower court is affirmed.

      . The Appellee placed reliance upon the similar provisions of two separate statutes. The Act of May 5, 1933, P.L. 364, art. X, § 1014, as amended, 15 P.S. § 2014, which relates to regular corporations, provides, in pertinent part: “No foreign business corporation transacting business in this Commonwealth without a certificate of authority shall be permitted to maintain any action in any court of this Commonwealth until such corporation shall have obtained a certificate of authority.” The Act of November 15, 1972, No. 271, § 8141, 15 Pa.C.S.A. § 8141, applying to foreign corporations not-for-profit, states in relevant part: “No nonqualified foreign corporation doing business in this Commonwealth within the meaning of Subchapter B of this chapter (relating to qualification) shall be permitted to maintain any action in any court of this Commonwealth until such corporation shall have obtained a certificate of authority.” The Appellee logically asserted that whether the Appellant was a profit or non-profit foreign corporation was not important as it required a Certificate of Authority to maintain suit in either event.

      . The lower court was justified in delaying action on the preliminary objections. It has been held that a foreign business corporation which instituted suit prior to obtaining a Certificate of Authority may nevertheless be permitted to continue such litigation if it becomes properly qualified under the Statute while the case is then still being prosecuted. However, the court may not grant relief or otherwise conclude the case in favor of the non-registered plaintiff foreign corporation if it remains non-qualified. Compare Empire Excavating Company v. Maret Development Corporation, 370 F.Supp. 824 (W.D. Pa.1974) and International Inventors Incorporated, East v. Berger, 242 Pa.Super. 265, 363 A.2d 1262 (1976).


author: PER CURIAM:

text:
    446 A.2d 1341
    Sylvia and Theodore OSTROFF, Individually and as Administrators of the Estate of Marlene Ostroff, Deceased v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1981.
    Filed June 18, 1982.

      John G. Jenemann, Philadelphia, for appellant.
    Jerome M. Dubyn, Philadelphia, for appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Appellees filed a petition to compel arbitration pursuant to an uninsured motorist provision of an insurance contract. The petition averred that appellees’ daughter was killed in an automobile accident and the responsible operator was only insured for $15,000. Appellant filed an Answer and New Matter denying that decedent had underinsured coverage. Petitioners filed a reply arguing that the coverage was a question of law to be decided by the arbitrators and that such arbitration was required under the arbitration clause in the insurance contract. Without conducting a hearing, the lower court directed appellant to appoint an arbitrator. This appeal followed.

This court, sitting en banc, recently held that such a claim under an uninsured motorist provision, should not proceed to arbitration. White v. Concord Mutual Ins. Co., 296 Pa.Superior Ct. 171, 442 A.2d 713 (1982). However, this current case is different in one important aspect. The arbitration provision under review provides for arbitration of disputes involving an underinsured motorist as well as an uninsured one. The issue is not whether a party may recover from his own carrier’s uninsured provision when the responsible party’s coverage proves to be inadequate. Instead, the question is whether he had underinsured coverage. That issue is to be resolved by arbitration. Compare White, 296 Pa.Superior Ct. 178, 442 A.2d at 716.

Order of the lower court is affirmed.


text:
    446 A.2d 1342
    Ruth Grace S. WEST v. Sidney WEST, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed June 18, 1982.

      Carolyn E. Temin, Philadelphia, for appellant.
    William D. Parry, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from an “INTERIM ORDER” compelling appellant to pay appellee $180 “per week for support and maintenance .. . until further ORDER.” Appellant contends that the order is final and appealable. See, e.g., Paul v. Paul, 281 Pa.Superior Ct. 202, 209, 421 A.2d 1219, 1223 (1980). Appellee contends, however, and we agree, that the order is not final and that the appeal is interlocutory and must be quashed.

“The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975). If the practical effect of an order is to put an appellant out of court by precluding him from presenting the merits of his claim, the order is appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Toll v. Toll, 293 Pa.Superior Ct. 549, 555, 439 A.2d 712, 715 (1981). The order appears final insofar as it compels appellant to pay support, but it also “invite[s] him back into court,” Conaway v. 20th Century Corp., 491 Pa. 189, 196, 420 A.2d 405, 409 (1980) (order dismissing complaint “in accordance with . .. opinion” that invited reconsideration was not final), for the “completion of testimony.” The order was captioned “INTERIM ORDER,” and, although that label alone does not justify a conclusion that the order is not final, there are ample indications in the record that both attorneys and the court contemplated further proceedings before entering a final support order. See N.T. August 18, 1981 at 93-101, R.29b-37b (counsel indicating desire to call additional witnesses; discussing propriety of “Interim Order” with court). Moreover, the lower court’s opinion articulates its motivation for entering the subject order:

Our decision to enter the order appealed from was predicated upon an evaluation of the testimony deceived at the June 10th hearing and the fact that nearly a year had passed since the petition was filed without final disposition of the matter. .. . Our award was entered in an effort to afford temporary relief while reserving the right to later abrogate it, in the event that the [appellant] proved the award to be unjustified. It is our belief that in the event that an interim order of the kind is proved to have been erroneously entered, [appellant] could seek a credit for those sums paid when the equitable distribution claim was heard.
It is apparent that the “Interim Order” [was] entered without prejudice to the party’s [sic] right to continue litigating the issue at the next hearingf.]

Although the lower court’s order could have been more explicit, we are satisfied that the practical effect of the order was not to preclude appellant from presenting the merits of his claim to the court. Consequently, because we conclude that the order was not final, we must quash the appeal as interlocutory.

Appeal quashed.


text:
    446 A.2d 1343
    BALBOA INSURANCE COMPANY, Appellant, v. Robert C. AMITY and Patricia Ann Amity, his wife.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed June 18, 1982.
    Petition for Allowance of Appeal Denied Jan. 6, 1983.

      Kim Darragh, Pittsburgh, for appellant.
    Harry Stump, Pittsburgh, for appellees.

      Before WICKERSHAM, WIEAND and BECK, JJ.
   PER CURIAM:

This is an appeal from an order sustaining preliminary objections by way of a demurrer and dismissing a petition for declaratory judgment and injunctive relief concerning an uninsured motorist claim. Appellee Robert C. Amity was injured July 20, 1978 in a motorcycle accident with a third party who was insured by Allstate Insurance Company. Allstate paid the limit of their client’s policy, $15,000 to the Amitys in settlement of the Amitys’ claims against the third party.

The Amitys then brought a claim pursuant to their uninsured motorist coverage against their own insurance carrier, appellant Balboa Insurance Company (hereinafter Balboa), alleging that the third party was an uninsured motorist for that portion of their claim in excess of $15,000. The claim was denied by Balboa and the Amitys then invoked the arbitration provision in their policy. Both the Amitys and Balboa appointed an arbitrator. Subsequently, the Amitys filed a petition asking the lower court to appoint the third arbitrator which was opposed by Balboa in an answer with new matter on the basis that Robert C. Amity was not injured by an uninsured motorist. Judge Louis S. Farino appointed the third arbitrator in an order dated March 24, 1980.

Balboa then filed an action in federal court requesting a declaratory judgment and an injunction as to further proceedings by the arbitrators. Reasoning (i) that Balboa’s federal suit was an attempt to forum shop in contravention of 28 U.S.C. § 1446(b) (1970) and (ii) that the parties involved, the issues raised, and the facts presented in Balboa’s federal action were identical to those in the state proceeding, on November 13, 1980, the federal court remanded the case to the court of common pleas where it was assigned the same docket number given to the Amitys’ prior petition for the appointment of the third arbitrator.

Balboa then filed a petition for a declaratory judgment that Robert C. Amity’s injuries suffered on July 20, 1978 were not inflicted by an uninsured motorist and requesting an injunction barring further proceedings by the arbitrators. The Amitys filed preliminary objections by way of a demurrer to the petition. On December 15,1980, Judge Bernard J. McGowan entered an order sustaining the Amitys’ preliminary objections by way of a demurrer and dismissing Balboa’s petition for a declaratory judgment and for an injunction. An application for a stay of the arbitration proceedings was granted on February 4,1981 by the Superior Court after having been previously denied by the lower court.

Appellant Balboa frames the first of the questions involved as follows:

Can a motorist be held to be an uninsured motorist, under the terms of the policy in question, where admittedly he carries at least the minimum limits of liability coverage mandated by the law of Pennsylvania, and the appellee has been paid those limits in settlement of his case against the motorist?

Brief for Appellant at 2.

Instantly, the insurance policy in question defines an “uninsured motor vehicle” as:

(1) a motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such motor vehicle; or
(2) a hit-and-run motor vehicle ....
It is agreed that the term ‘uninsured motor vehicle’ includes a motor vehicle with respect to which there is a bodily injury liability insurance policy applicable at the time of the accident, but the company writing the same is or becomes insolvent.

The above-quoted definition is substantially similar to that of an “uninsured automobile” contained in Title 31, Pennsylvania Code, Section 63.2, and as contained in the insurance policy considered in White v. Concord, 296 Pa.Super. 171, 442 A.2d 713 (1982). In White we stated:

Appellant points out that because other persons were injured in the accident there was less than $15,000 in coverage available to him from each policy. It may be granted that because of this fact, appellant did not recover an amount equal to the minimum amount of coverage required by Pennsylvania law. Thus it may be said that as to appellant, the automobiles involved in the accident were ‘underinsured,’ or ‘partially’ or ‘inadequately’ insured. However, it does not follow that therefore the automobiles were ‘uninsured.’
On its face, ‘uninsured’ cannot mean ‘underinsured’ or ‘partially’ or ‘inadequately’ insured. If understood as a layman would understand the terms, ‘uninsured’ means ‘no insurance,’ while ‘underinsured’ means ‘some insurance but not enough.’

Id., 296 Pa.Super. at 173, 442 A.2d 713.

In accord with White we now hold that although the Amitys may have suffered injuries as a result of a collision with an underinsured motorist they may not recover against Balboa under the uninsured motorist provision of their insurance policy.

Appellant Balboa frames the second question involved as follows:

Is such a question subject to the provisions of the arbitration clause in the uninsured motorist endorsement of appellee’s policy issued by appellant, or is it a question for the courts to decide?

Brief for Appellant at 2.

While generally the application or construction of an uninsured* motorist clause which provides for arbitration of disputed claims is within the exclusive jurisdiction of the arbitrators, the courts will take jurisdiction of such a dispute if the claimant attacks a particular provision of the clause as being contrary to a constitutional, legislative, or administrative mandate, or against public policy, or unconscionable. White v. Concord, supra, 296 Pa.Super. at 174, 442 A.2d 713. As was mentioned previously the definition of an “uninsured motor vehicle” in the policy presently considered is substantially similar to that of an “uninsured automobile” as defined in the Pennsylvania Insurance Commissioner’s regulations at 31 Pa.Code § 63.2 and as contained in the insurance policy considered in White. As in White we are faced with a claim by an insured that a vehicle which was insured according to the Insurance Commissioner’s regulations was nonetheless uninsured according to the requirements of the Act of August 14, 1963, P.L. 909, as amended, 40 P.S. § 2000(a) which requires uninsured motorist protection in motor vehicle liability insurance policies. It follows, therefore, that the Amity’s claim is but another way of saying that the Insurance Commissioner’s regulations are contrary to the statute. Jurisdiction, in the instant case, is therefore properly in the court rather than in the arbitrators.

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

      . The instant case is distinguishable from Runewicz v. Keystone Ins. Co., 476 Pa. 456, 383 A.2d 189 (1978) wherein the supreme court upheld an arbitrator’s award. Although the underlying issue concerning underinsured motorists is essentially the same in both cases, in Runewicz the insurance company proceeded to arbitration without objection while instantly Balboa opposed the appointment of the third member of the arbitration panel in its answer with new matter.


author: CIRILLO, Judge: POPOVICH, Judge,

text:
    446 A.2d 1346
    COMMONWEALTH of Pennsylvania v. Charles M. DAWSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed June 18, 1982.

      Steven Kocherzat, Beaver, for appellant.
    John Lee Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant, Charles M. Dawson, appeals from the judgment of sentence entered against him on January 28, 1981. He was found guilty by a jury on October 28,1980 of two counts of aggravated assault, four counts of simple assault, and two counts of recklessly endangering another person. Appellant was sentenced to not less than one nor more than two years imprisonment on one aggravated assault conviction and, on the other aggravated assault conviction, he was sentenced to three years probation to commence consecutively after imprisonment. The trial court denied appellant’s motions for new trial and in arrest of judgment. This appeal followed.

Appellant presents two issues for our review: (1) the trial court abused its discretion in furnishing the jury, pursuant to its request, with a written statement defining the statutory elements of the crimes charged, and (2) the trial court abused its discretion in not giving the jury a statement defining self-defense since the trial court complied with the jury’s other request.

In regard to appellant’s first contention, Rule 1114 of the Pennsylvania Rules of Criminal Procedure provides:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or the indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial court deems proper.

In the instant case, shortly after the jury began its deliberations, the jurors sent a hand-written request to the trial court for clarification of the crimes charged. The request read: “we need written definitions of aggravated assault, simple assault, and recklessly endangering.” The trial court held an in-chambers conference with both the prosecutor and defense counsel concerning this request. The trial court felt that it was appropriate to comply with the request because there was a large amount of repetition and overlapping of particular elements of the crimes, and the absence or addition of an element made it difficult to differentiate one crime from another on the basis of memory alone. The court proposed sending to the jury a list of the elements of the various crimes charged in the information. Defense counsel objected that this statement would prejudice appellant, and that the jury would place undue emphasis upon it. After noting defense counsel’s objection on the record, the trial court sent the jury the following statement which was typed on a plain, white sheet of paper:

“Counts One and Two—Aggravated Assault
Intentionally, knowingly, or recklessly causing serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life.
Counts Three and Four—Aggravated Assault
Intentionally or knowingly causing bodily injury to another with a deadly weapon.
Counts Five and Six—Simple Assault
Intentionally, knowingly or recklessly causing bodily injury to another.
Counts Seven and Eight—Simple Assault
Negligently causing bodily injury to another with a deadly weapon.
Counts Nine and Ten—Recklessly Endangering
Recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury.”

The case of Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406, (1976) first addressed the issue of whether the trial court erred in sending out a written set of possible verdicts with the jury. In Baker, ten instructional questions, prepared by the trial court, were given to the jury, and the following is an example of the type of instructions:

5. Did the defendant with malice kill the decedent deliberately by design, even if the design was formed very shortly before the killing? If so, you should find the defendant guilty of murder in the first degree.

Id., 466 Pa. at 396, 353 A.2d at 413 (note 11).

The Supreme Court of Pennsylvania held that the trial court in Baker had not abused its discretion in sending the instructions out with the jury. However, the Court went on to hold that the inherent dangers of such a statement given to the jury outweighed the possible benefit to be derived from it, and, that in the future, this practice should not be followed.

In a similar case, Commonwealth v. Kelly, 245 Pa.Super. 351, 369 A.2d 438 (1976), the trial judge prepared and sent out with the jury a verdict slip which contained a brief summary, next to each bill of indictment number, describing the factual situation out of which each count arose. Our court held that, although the brief factual statement was not exactly neutral on its face, it was not prejudicial to appellant, and, the trial court did not abuse its discretion in sending it out with the jury. The Supreme Court of Pennsylvania affirmed Kelly, 484 Pa. 527, 399 A.2d 1061 (1979) and likewise concluded that the trial court did not abuse its discretion in concluding that there was a need for the identifying notations:

The notations themselves, while not ideally drawn, were nevertheless in essence neutral and viewed in the context of the court’s instructions not suggestive or prejudicial. Unlike Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976), the language on the verdict slip here is not a condensed and potentially misleading statement of the court’s instructions.
Nonetheless, it is not inappropriate to observe as a general prudential principle that identifying notations which are not completely neutral create a potential for prejudice. It is therefore desirable for trial courts in the exercise of their discretion: (1) to determine after consultation with counsel whether, due to the complexity of the charges and the nature of the trial, there is a clear need for identifying notations on a verdict slip to avoid confusion by the jury concerning the issues before it; and, (2) if such a clear need appears, to determine, after conferring with counsel, the text which best preserves the impartiality of the verdict slip.

Id., 484 Pa. at 528-29, 399 A.2d at 1061-2.

After conferring with counsel, the trial court in this case correctly concluded that the jury was confused as evidenced by its request for the definitional statement. If jurors are to attend to their duties conscientiously and render a verdict which is fair, based on their recollection of the facts and understanding of the law as it applies to the immediate facts before them, then, non-prejudicial, supplemental clarification should be given to them when it is requested. In this case, a definite need for supplemental instructions was shown. The statement, as prepared by the trial court, amounted to simple definitions of the elements of the crimes charged. It neither phrased the elements of the crimes in potentially misleading questions as in Baker, nor restated the facts in conjunction with the elements as in Kelly. Therefore, the test as set forth in Kelly was followed by the trial court in this case, and we find no error in the trial court’s approach.

Appellant’s second contention is that the trial court abused its discretion in not giving the jury a statement defining self-defense since the trial court complied with the jury’s other request. Defense counsel requested the trial court to give to the jury a written definition of self-defense. The jury did not request the definition.

The scope of supplemental instructions given in response to a jury’s request rests within the sound discretion of the trial judge. He may properly confine supplemental instructions to the particular question asked by the jury despite a defendant’s request for additional instructions. Commonwealth v. Haddle, 271 Pa.Super. 418, 422, 413 A.2d 735, 738 (1979).

The trial court, in its charge to the jury, properly addressed appellant’s assertion of self-defense. Appellant does not claim that the trial court’s charge was erroneous. We, therefore, find that the trial court did not abuse its discretion in not repeating appellant’s assertion of self-defense in supplemental instructions.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. The majority concludes that the trial court’s actions were proper when it sent written instructions, requested by the jury during deliberations, of the elements of the crimes charged but refused appellant’s request to send out a statement of the elements of self-defense. This was reversible error.

In Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976), a plurality opinion, our Supreme Court discussed the practice of sending out a written set of possible verdicts with the jury. Our Supreme Court, per Justice NIX, stated the following:

“The obvious danger in such a practice is that the jurors may tend to overemphasize the importance of the matters touched upon within such a memoranda and possibly ignore the totality of the oral charge.” Commonwealth v. Baker, Id., 466 Pa. at 396, 353 A.2d at 413 (1976) (Emphasis added). See generally, Annot., 91 A.L.R.3d 382 (1979).

In view of the above, it is apparent that even if the court had the authority to send out “instructions” to the jury, it was improper for the court to only allow the jury to have the definitions of the crimes and to deny them access to the “totality of the . .. charge”, which, of course, would have included a charge on appellant’s defense of self-defense. Thus, the trial court’s action “may [have] tended to overemphasize” the elements of the crimes charged when it granted such a partial request—thereby, deemphasizing appellant’s defense.

Additionally, the majority states that the trial court’s sending of the “list of the elements of the various crimes charged in information” to the jury was a “non-prejudicial, supplemental clarification”. See at 85 and 87. This writer, however, considers the listing sent by the court in the instant case as equivalent to allowing the jury to receive a “copy of the information or indictment,” a practice which is specifically prohibited by Rule 1114 of the Pennsylvania Rules of Criminal Procedure.

Rule 1114 and the commentary which accompanies that rule provide as follows:

“RULE 1114. Material Permitted in Possession of the Jury
Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.
Comment: This Rule substantially changes the former law in many Pennsylvania counties by prohibiting the jury from receiving a copy of the indictment (or information) during its deliberations, see Commonwealth v. Schwartz, 178 Pa.Super. 434, 115 A.2d 826 (1955). The Rule also prohibits the jury from taking into the jury room any written confession of the defendant.
In Commonwealth v. Pitts, 450 Pa. 359, 363 n. 1, 301 A.2d 646, 650 n. 1 (1973), the Court noted that ‘it would be a better procedure not to allow exhibits into the jury room which would require expert interpretation.’
Adopted Jan. 24,1968. Eff. Aug. 1,1968. Amended June 28, 1974. Eff. Sept. 1, 1974.” (Emphasis added).

With this in mind, we must remember that an information or indictment “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Accord Commonwealth v. Carter, 482 Pa. 274, 277, 393 A.2d 660, 661 (1978).

The plain, typed, white sheet of paper which was sent to the jury in the instant case also was similar in form and content to an information. That paper stated the following:

“Counts One and Two—Aggravated Assault
Intentionally, knowingly, or recklessly causing serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life.
Counts Three and Four—Aggravated Assault
Intentionally or knowingly causing bodily injury to another with a deadly weapon.
Counts Five and Six—Simple Assault
Intentionally, knowingly or recklessly causing bodily injury to another.
Counts Seven and Eight—Simple Assault
Negligently causing bodily injury to another with a deadly weapon.
Counts Nine and Ten—Recklessly Endangering
Recklessly engaging in conduct which places or may place another person in danger of death or serious bodily injury.”
Majority’s Slip Opinion at 1347.

It is obvious that the statement by the trial court is merely a recounting of the language found in the Pennsylvania Crimes Code. See 18 Pa.C.S.A. §§ 2701(a)(1) and (2) (simple assault), 2702(a)(1) and (4) (aggravated assault), and 2705 (recklessly endangering another person). Instead, the majority ignores the mandate of Rule 1114 saying that the “statement as prepared by the trial court, amounted to simple definitions of the elements of the crimes charged.” At 87. (Emphasis added). What the majority ignores is the fact that such “simple definitions” are also the kind of verbiage contained in most criminal informations, which again is prohibited material under the Rule. See Pa.R. Crim.P. 225(b) (“The information . .. shall be valid and sufficient in law if it contains ... a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint. ... ”)

Interesting enough, the majority justifies the court’s action in denying appellant’s request to allow the jury to receive a statement defining self-defense (1) by relying on the principle that the scope of supplemental instructions rests within the sound discretion of the trial court, and (2) by stating that the “trial court, in its charge to the jury, properly addressed appellant’s assertion of self-defense.” At 88. This writer, however, cannot subscribe to the majority’s bootstrap logic. To begin with, the majority assumes without explanation that the statement sent to the jury was a properly written “instruction ”. However, the instruction is not representative of those approved by our jurisdiction.

However, even accepting the majority’s argument that the statement was a form of an instruction, it was nonetheless incomplete. A federal circuit court in addressing this issue stated the following:

“No doubt instructions which [the trial court] reads and hands over to the jury may make a stronger impression than other instructions which are not reduced to writing. This difference may or may not be important. When the judge thinks that it is likely to distort the charge as a whole..., he may solve the problem by declining to give or by declining to hand over any written instructions, or by reducing his entire charge to writing and reading it to the jury.” Copeland v. United States, 80 U.S.App.D.C. 308, 152 F.2d 769 (1945), cert. denied, 328 U.S. 841, 66 S.Ct. 1010, 90 L.Ed.(2d) 1815 (1945).

In view of the above language, it is no consolation to the appellant that the court covered the charge of self-defense in the oral charge when it also emphasized in a written statement that he was charged with ten counts of assault-related crimes. Hence, I must dissent.

      . The two victims of the assaults suffered multiple lacerations after being knifed by appellant during a street fight.

      . At sentencing, the trial court merged the convictions of simple assault and recklessly endangering another person into the aggravated assault convictions.

      . At this time, this writer need not decide whether a properly written instruction is among those materials permitted to be taken out with the jury upon retiring for deliberations because, in any event, the trial court had no authority to send out the abbreviated information-type document.


author: BECK, Judge:

text:
    446 A.2d 1350
    COMMONWEALTH of Pennsylvania v. Martin Lee MICHAEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed June 18, 1982.

      Gibson Smith, York, for appellant.
    Theodore B. Smith, III, Assistant District Attorney, Car-lisle, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

Appellant was charged with violation of the Vehicle Code, as amended, 75 Pa.C.S.A. § 101 et seq., when a Police Officer observed him driving a heavily laden dump-truck which bore a registration sticker appropriate for a small pick-up truck. The Officer, trained in the State Police Course in weights and measures, directed appellant to proceed to a nearby weighing station of a feed plant and to drive the truck onto the scale. An employee of the plant activated the automatic scale equipment which produced both a digital read out and a ticket stamped with the weight. The results indicated the truck weighed 25,640 pounds, 14,460 more than the 11,000 pounds for which it was registered.

Appellant was issued two citations for, and subsequently convicted of, violation of the Vehicle Code, Section 4942(a), [overweight], 75 Pa.C.S.A. § 4942(a), and Section 1304(e) [improper inspection], 75 Pa.C.S.A. § 1304(e). These citations bore the address and number of the magisterial district in which they would be filed, but did not contain the name of the district magistrate. At the time of the incident, the elected district magistrate was under suspension and another district magistrate had been assigned temporarily.

Appellant contends that the citations were fatally defective on the ground that they did not contain the name of the district magistrate.

In support of this contention appellant cites, Pa.R.Crim.P. 53(a) “provides for the form of the citation (under notice):

The Original copy of this citation will be filed before the issuing authority whose name and address is listed above.”

However, Pa.R.Crim.P. 52 A.2. provides with respect to citations: “The copy delivered to the Defendant shall contain notice . . . that the original copy of the citation will be filed before the issuing authority of the magisterial district named in the citation, whose address shall be contained in the citation...” Rule 52 A.2. does not require that the specific name of the district justice appear on the citation, but only that the Defendant's copy contain the magisterial district and address.

Further, Pa.R.Crim.P. 52 B. states:

Additional information may be contained in a citation to assist a police organization issuing the citation or the issuing authority with whom it is filed in the performance of their respective functions. Failure of any person to make and complete such additional information shall not affect the validity of the citation or a prosecution commenced thereby.

In the instant case, appellant’s rights were not prejudiced. He knew where and when he must appear, and what steps to take properly to respond to the charges. It is not a statutory requirement that the name of the district justice appear on the citation.

Therefore, Sections 52 A.2. and 53(a) read together compel the conclusion that the name of the issuing authority falls within the category of additional information, and its absence does not render the citations invalid.

Secondly, the appellant argues that the convictions should not stand as the weighing of the truck was conducted or participated in by a person not qualified under Section 4981(a) of the Vehicle Code, 75 Pa.C.S.A. § 4981(a), provides:

Any police officer is authorized to require the driver of any vehicle or combination to stop and submit the vehicle or combination to be measured and weighed. Weighing may be done by using either portable or stationary scales. The measurements and weighing shall be conducted by qualified personnel who have been trained in the use of weighing and measuring equipment in a training program approved by the Department of Agriculture.

The employee of the plant in which the scales were located and who activated the mechanism had not completed a training course approved by the Department of Agriculture.

However, the Police Officer was fully qualified under the Vehicle Code, and it was he who directed the truck driver to proceed to the weigh station, supervised the process and recorded the result.

The purpose of the training requirement in Section 4981 is to insure accurate weighing, which when portable scales are used require specific skills and training.

In the instant case, the weighing was a fully automatic process performed on a permanent scale and conducted by an experienced employee together with a qualified police officer. There is no reason to think that the weighing was inaccurate, or that it was inconsistent with the intention of Section 4981.

The opinion of the lower court is affirmed.


author: HOFFMAN, Judge: VAN der VOORT, Judge,

text:
    447 A.2d 259
    COMMONWEALTH of Pennsylvania v. Keith REISS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1981.
    Filed Feb. 26, 1982.
    Reargument Denied July 19, 1982.
    Petition for Allowance of Appeal Granted Nov. 5, 1982.

      Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.
    William Platt, District Attorney, Allentown, for Commonwealth, appellee.

      Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in: granting the Commonwealth’s petition for an extension of time for the commencement of trial under Pa.R.Crim.P. 1100(c); and, alternatively, admitting evidence of a photographic identification by a Commonwealth witness. For the reasons that follow, we reverse and remand for a new trial.

I

Appellant was arrested on June 29, 1978, pursuant to a complaint filed on June 27, 1978. Consequently, under rule 1100(a), appellant’s trial should have commenced on or before December 26, 1978. Following three brief defense-requested continuances and a preliminary hearing, appellant was held for trial. On October 3, 1978, the Commonwealth filed an information charging appellant with robbery, simple assault, theft by unlawful taking or disposition, receiving stolen property, felonious restraint, false imprisonment and two counts of kidnapping. Appellant was arraigned nine days later. On November 13, 1978, the scheduled trial date, appellant timely filed his omnibus pre-trial motion and notice of alibi defense. On November 15, 1978, the Commonwealth requested a continuance to investigate appellant’s alibi defense, which, apparently, rested upon two witnesses from Arkansas. Citing appellant’s continuances and the need to investigate his alibi defense, the Commonwealth petitioned on November 20, 1978 for an extension of time under rule 1100(c). Following a hearing on January 18, 1979, the lower court granted the Commonwealth’s petition and the case proceeded immediately to trial. A jury found appellant guilty of robbery, simple assault, theft by unlawful taking and felonious restraint. Following the denial of post-verdict motions and imposition of sentence, appellant took this appeal.

Appellant contends that the lower court erred in granting the Commonwealth’s petition for an extension of time to commence his trial. We disagree. “A court may grant the Commonwealth an extension of time for trial if it finds that ‘trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.’ Pa.R. Crim.P. 1100(c).” Commonwealth v. Miller, 270 Pa.Superior Ct. 178, 182, 411 A.2d 238, 240 (1979). Moreover, it must be established “that trial is scheduled for the earliest date consistent with the court’s business.” Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976). The Commonwealth has the burden of proving by a preponderance of the evidence that these two requirements have been satisfied. Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979). “In reviewing a determination that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Hill, 290 Pa.Superior Ct. 399, 401, 434 A.2d 813, 814 (1981). Read in this light, the record reveals that the Commonwealth was forced to reschedule appellant’s preliminary hearing three times because of his inability to secure counsel. Although those defense-requested continuances are not excludable under rule 1100(d), they may be considered in determining whether the Commonwealth has been duly diligent in bringing appellant to trial. Commonwealth v. Brant, 272 Pa.Superior Ct. 135, 140, 414 A.2d 707, 709 (1979); Commonwealth v. Mancuso, 247 Pa.Superior Ct. 245, 253-54, 372 A.2d 444, 448 (1977). Appellant’s trial was scheduled to commence on November 13, 1978, well within the prescribed period. On that day however, appellant filed notice of an alibi defense, listing his two witnesses as residents of Little Rock, Arkansas. The Commonwealth promptly requested a continuance and subsequently petitioned for an extension of time to commence trial in order to investigate appellant’s alibi. Because there were no more criminal trial sessions scheduled for the remainder of the year, the lower court rescheduled the case for the January trial session. We are satisfied that the record adequately shows that the Commonwealth was duly diligent in bringing appellant to trial. The initial delays were caused by appellant’s requests for continuance. The Commonwealth’s subsequent requests for continuance and extension of time to investigate appellant’s alibi defense were certainly reasonable considering the time the Commonwealth first learned of it, the location of the witnesses in Little Rock, Arkansas, and the lack of criminal trial sessions the remainder of the year. We are also satisfied that the lower court scheduled the case for the next criminal trial session.- Consequently, the lower court did not err in granting the Commonwealth an extension of time for commencement of appellant’s trial.

II

At trial, the Commonwealth elicited evidence concerning a photographic identification of appellant. The following exchange took place between the prosecutor and the victim:

Q. Now on that same date, the date of the incident, were you with Investigator Haller back at the police headquarters?
A. Yes.
Q. And was anyone with you from your family when you were with Investigator Haller?
A. My parents.
Q. And did you, did Investigatory Haller show you a packet of photographs?
A. Yes.
Q. And, from those photographs, did you select any one photograph?
Q. Whose picture did you pick out of the packet?
A. Keith Reiss.

(N.T. January 18, 1979 at 11-12). Similarly, the following exchange occurred between the prosecutor and the investigating officer:

Q. Now on the date of the incident, that being April 23rd, did you show [the victim] some photographs?
A. Yes I did.
Q. How many photographs did you show him?
A. I showed him two packets of photographs. Fifty per pack.
Q. Approximately one hundred photographs?
A. Yes sir.
Q. Did he pick out any photographs of the person being responsible for the robbery?
A. Yes.
Q. Whose photograph did he pick out?
A. Keith Reiss.

(N.T. January 18, 1979 at 68-69). Additionally, in summarizing the evidence to the jury during its charge, the lower court specifically referred to the testimony regarding the photographs. (N.T. January 22, 1979 at 15).

It is well settled that with limited exceptions not applicable here, “the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972). “Once it is determined that a jury could reasonably conclude from the photographic reference prior criminal activity on the part of the defendant prejudicial error has been committed.” Id., 448 Pa. at 182, 292 A.2d at 375. Having reviewed the record, we must conclude that the jury could have inferred prior criminal activity on the part of appellant from the disputed testimony and court’s summation. Contrary to the assertions of the Commonwealth and the lower court, these were not merely passing references. See, e.g., Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974). On three separate occasions, the jury was informed of the display of photographs to the victim by Investigator Haller at the police station shortly after the incident took place. The victim was shown two packs of pictures, fifty per pack, and there was no explanation by the Commonwealth as to how these pictures came into the possession of the police. Under strikingly similar circumstances, this Court held “one would be quite naive to believe the jury could not reasonably infer the photographs were ‘mug shots.’ ” Commonwealth v. Dickerson, 267 Pa.Superior Ct. 492, 494, 406 A.2d 1149, 1150 (1979). Accordingly, we must reverse the lower court and grant appellant a new trial.

Judgment of sentence reversed and case remanded for a new trial.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting.

The majority here holds that if during a trial three references are made to a photographic identification of the defendant he or she must be awarded a new trial. I respectfully disagree.

Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972) rejected a per se rule requiring a new trial whenever a photographic identification is mentioned before a jury. A reviewing court must instead look to the record to see if a jury was prejudiced against the defendant by such references. The question becomes whether a juror could reasonably infer that an accused had engaged in prior criminal conduct. Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974). I find that Commonwealth v. Krasner, 285 Pa.Superior Ct. 389, 427 A.2d 1169 (1981) (En Banc, with Dissenting Opinion by Spaeth, J., joined by Cercone, P. J., dissenting on other grounds) should control here.

In Krasner, the Commonwealth twice elicited testimony regarding such an identification. This Court noted that there was no indication that the pictures were mug shots or obtained from a police file. The Court held that except for the fact that they were displayed by a police officer the photographs did not link the defendant to any prior crime. The current appeal is very similar. Nor do I believe that a jury could reasonably infer prior criminal conduct from the fact that the identification occurred at a police station. Contra, Commonwealth v. Dickerson, 267 Pa.Superior Ct. 492, 406 A.2d 1149 (1979) (Three Judge Panel, Per Curiam). The only distinction between this case and Krasner is the lower court’s mention of the photographic identification in its summation of the evidence. I do not believe that this third reference, by the court, requires a result contrary to the result in Krasner. But see, Craft, supra.

In the current appeal approximately 200 pages of testimony were taken over the two days and the court’s charge to the jury consists of an additional thirty-one (31) pages. I fail to understand how these three brief references, out of almost 250 pages of notes taken, requires the grant of a new trial. See Commonwealth v. Wilson, 238 Pa.Superior Ct. 340, 357 A.2d 163 (1976). Accordingly, I would affirm the judgment of sentence.

      . The 180 day period expired on Sunday, December 24, 1978. In computing time, “[w]henever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from computation.” 1 Pa.C.S.A. § 1908; Pa.R. Crim.P. 2.

      . Because we hold that the Commonwealth had been duly diligent, we need not determine whether appellant waived any rule 1100 objection by acquiescing in the granting of the continuance beyond the prescribed period. See Commonwealth v. Favors, 273 Pa.Superior Ct. 109, 416 A.2d 1113 (1979).

      . The dissent asserts that the instant case is controlled by our recent en banc decision in Commonwealth v. Krasner, 285 Pa.Superior Ct. 389, 427 A.2d 1169 (1981). In Krasner, the witness was shown six or seven pictures, by contrast, the witness here was shown two packets of fifty pictures each. Moreover, the jury was told that the identification took place “back at police headquarters.” (N.T. January 18, 1979 at 11). Consequently, we conclude that this case is distinguishable from Krasner and, instead, is controlled by Allen and Dickerson.

      . Because of our disposition of this appeal and the unlikelihood of the Commonwealth’s purported misconduct reoccurring at appellant’s retrial, we do not express any opinion as to the merits of appellant’s final contention. Commonwealth v. Shomaker, 293 Pa. Superior Ct. 78, 87 n.3, 437 A.2d 999, 1003 n.3 (1981).


author: HESTER, Judge:

text:
    447 A.2d 263
    The FIRST NATIONAL BANK OF LANCASTER COUNTY, Formerly known as The First National Bank of Strasburg, Appellant, v. Kenneth L. BREWER, Sr. and Marie E. Brewer, Husband and Wife. The FIRST NATIONAL BANK OF LANCASTER COUNTY, Formerly known as The First National Bank of Strasburg v. Kenneth L. BREWER, Sr. and Marie E. Brewer, Husband and Wife. Appeal of Howard W. SEIPLE, Trading as George Seiple & Son.
    Superior Court of Pennsylvania.
    Argued June 23, 1981.
    Filed April 30, 1982.
    Reargument Denied July 21, 1982.
    Petition for Allowance of Appeal Denied Nov. 15, 1982.

      Mark S. Sigmon, Bethlehem, for appellant (at No. 315).
    Thomas L. Walters, Easton, for appellant, (at No. 316) and for participating party (at No. 315).
    Elwood M. Malos, Easton, for appellee (at No. 316).
    Before HESTER, CAVANAUGH and DISALLE, JJ.
   HESTER, Judge:

This appeal concerns the Sheriff’s Schedule of Distribution of the proceeds from the sale of real estate formerly owned by Kenneth L. Brewer, Sr. and Marie E. Brewer, his wife. Exceptions to the Schedule of Distribution were filed by appellant First National Bank of Lancaster County (Bank of Lancaster) and appellant Howard W. Seiple, trading as George V. Seiple & Son, pursuant to Pa.R.C.P. 3136, 42 Pa.C.S.A. Following discovery, the Court of Common Pleas of Northampton County denied and dismissed the exceptions and affirmed the Sheriff’s Schedule of Distribution, on January 12,1981. The appeals of the Bank of Lancaster and Seiple have been consolidated for our disposition.

The Brewers had the following judgments entered against them in Northampton County:

1. Judgment in favor of Howard W. Seiple, filed July 31, 1969, at No. 737, May Term, 1969, and revived on June 26th, 1974, at No. 286 May Term, 1974.
2. Judgment in favor of Howard W. Seiple, filed September 28th, 1972, at No. 245 August Term, 1972 and revived July 29th, 1977, at No. 891 May Term, 1977.
3. Judgment in favor of Howard W. Seiple, filed September 28th, 1972, at No. 246 August Term, 1972, and revived July 29th, 1977, at No. 890 May Term, 1977.
4. Judgment in favor of The First National Bank of Lancaster County, filed June 11th, 1973, at No. 110 May Term, 1973.
5. Judgment in favor of Howard W. Seiple, filed June 26th, 1974, at No. 287 May Term, 1974.
6. Judgment in favor of First Valley Bank filed April 28th, 1976, at No. 303, April Term, 1976.
7. Judgment in favor of Greenberg filed December 10th, 1976, at No. 566 October Term, 1976.
8. Judgment in favor of First National Bank of Lancaster County, filed February 14th, 1977, at No. 225 January Term, 1977.

On August 1,1977, the Bank of Lancaster filed a Praecipe for Writ of Execution on its judgment dated June 11, 1973, which resulted in a Writ of Execution being issued against the personal property of the Brewers.

On September 1, 1977, the Brewers, trading and doing business as Meadow Valley Dairy Farms filed a Petition for an arrangement under Chapter XI of the Federal Bankruptcy Act. Pursuant to this Petition, on October 6, 1977, the Bankruptcy Court issued notice for the first meeting of creditors. This notice also contained a statement that:

“The filing of the petition by the debtors above named operates as a stay of the commencement or continuation of any court or other proceeding against the debtors, of the enforcement of any judgment against them, any act of the commencement or continuation of any court proceeding commenced for the purpose of rehabilitation of the debtors or the liquidation of the debtors or the liquidation of their estate, as provided by Rule 11-44.”

The Petition filed by the Brewers listed the Bank of Lancaster, Seiple and The First Valley Bank as creditors. On October 20th, 1977, the Bank of Lancaster filed a proof of claim with the Federal Bankruptcy Court for the sum of $100,181.21.

The Bank of Lancaster caused its judgment dated June 11, 1973 to be revived by the filing of a praecipe on June 14, 1978.

On December 14, 1978, the Federal Bankruptcy Court entered an Order on a Trustee’s Petition which authorized the trustee to sell the real estate of the Brewers at public sale, subject to confirmation, with the sale to be held on January 13, 1979. However, on May 23, 1979, the Federal Bankruptcy Court denied the confirmation of the sale of the bankrupt’s estate and entered an Order of Abandonment.

On December 15, 1977, Seiple filed proof of claims on its aforementioned judgment notes with the Bankruptcy Court. Seiple allegedly did not receive notice of the Bankruptcy Court’s Order of Abandonment of May 23, 1979, until September 13, 1979. On September 14, 1979, the aforementioned Seiple judgments were revived.

The Schedule of Distribution filed by the Sheriff of Northampton County listed the priority of judgments for distribution as follows:

George V. Seiple & Son, Inc., 891 May Term, 1977, revived, $3,226.05.
Harold Seiple, trading as George V. Seiple & Son, 890 May Term, 1977, revived, $6,065.85.
Balance to First Valley Bank under judgment filed April 28th, 1976, $90,516.58.

On appeal, Seiple contends that its judgment, filed July 31,1969, at No. 737 May Term, 1969, and revived on June 26, 1974, at No. 286 May Term, 1974, is entitled to priority over the judgment of The First Valley Bank. Similarly, the Bank of Lancaster argues that its judgment filed June 11, 1973, at No. 110 May Term, 1973, is entitled to priority over the judgment of First Valley Bank.

Both appellants concede that the judgments at issue were not revived within the normal five year period specified by Section 2 of the Judgment Lien Law of 1947, Act of July 3, 1947, P.L. 1234, 12 P.S. Section 878 (repealed).

Both appellants advance alternative arguments in support of their position that they are entitled to priority over First Valley Bank. As a result of our disposition of this case, we will address only one issue.

Both appellants contend that the filing of the Petition for an arrangement under Chapter XI of the Federal Bankruptcy Act by the Brewers of September 1, 1977, acted as an automatic stay and suspended the five year period for the revival of the judgments through May 23, 1979, when the Bankruptcy Court denied confirmation of the sale of the Brewers' real estate and entered an Order of Abandonment with respect thereto.

We agree; and, therefore, reverse.

By order of October 6, 1977, the Federal Bankruptcy Court issued a notice for a first meeting of creditors concerning the Brewer Chapter XI Reorganization, which specifically operated “. . . as a stay of the commencement or continuation of any court or other proceeding against the debtors, of the enforcement of any judgment against them, any act of the commencement or continuation of any court proceeding commenced for the purpose of rehabilitation of the debtors or the liquidation of their estate. .. ”

Section 391 of the Bankruptcy Act, 11 U.S.C., Section 791, which was in effect at the time, provided:

“All statutes of limitations affecting claims provable under this Chapter and the running of all periods of time prescribed by Act in respect to the commission of acts of bankruptcy, the recovery of preferences and the avoidance of liens and transfers shall be suspended while a proceeding under this Chapter is pending and until it is finally dismissed.”

Similarly, the rules of bankruptcy procedure concerning Chapter XI proceedings provided:

PETITION AS AUTOMATIC STAY OF ACTIONS AGAINST DEBTOR AND LIEN ENFORCEMENT
“(a) Stay of Actions and Lien Enforcement. A petition filed under Rule 11-6 or 11-7 shall operate as a stay of the commencement or the continuation of any court or other proceeding against the debtor, or the enforcement of any judgment against him, or of any act or the commencement or continuation of any court proceeding to enforce any lien against his property, or of any court proceeding, except a case pending under Chapter X of the Act, for the purpose of the rehabilitation of the debtor or the liquidation of his estate.
(b) Duration of Stay. Except as it may be deemed annulled under subdivision (c) of this rule or may be terminated, annulled, modified, or conditioned by the bankruptcy court under subdivision (d), (e) or (f) of this rule, the stay shall continue until the case is closed, dismissed, or converted to bankruptcy or the property subject to the lien is, with the approval of the court, abandoned or transferred. ... ” Rule 11-44.

Until the Bankruptcy Court entered its Order of Abandonment on May 23, 1979, the revival of appellants’ liens was prohibited by federal law. More importantly, the revival of said liens during this period would have had no legal purpose or effect, if the Bankruptcy Court had confirmed the trustee’s sale of the real estate at issue, pursuant to its Order of December 14, 1978.

The effect of the Federal Bankruptcy Law is also consistent with Pennsylvania law as expressed by the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, effective June 27, 1978, as amended, 42 Pa.C.S.A. Section 5535(b), which states:

“Stay of Matter,—Where the commencement of a civil action or proceeding has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action or proceeding must be commenced.”

Although this Section of the Judicial Code was not in effect on Monday, June 12,1978, which normally would have been the last day for the Bank of Lancaster to revive its judgment pursuant to the Judgment Lien Law of 1947, this Section of the Judicial Code was in effect on May 23, 1979, when the Bankruptcy Court entered its Order of Abandonment.

Therefore, a combined interpretation of the Federal Bankruptcy Law and the Judicial Code, under the circumstances of this case, serves to suspend the five-year revival period from September 1,1977 through May 23,1979. Accordingly, the liens of both appellants are entitled to priority over the judgment lien of First Valley Bank.

First Valley Bank argues that Norristown Federal Savings & Loan v. Erwin (Appeal of Natoli), 186 Pa.Super. 81, 140 A.2d 458 (1958) held that a bankruptcy proceeding does not suspend the obligation to file a Writ of Revival. However, we find Natoli distinguishable. In that case, the lower court held that two judgments filed by Natoli against the debtor had lost their priority because they had not been revived. The judgments in question had been entered on November 5, 1949. On June 22, 1954, the debtors entered into a voluntary bankruptcy and the real estate in question was listed in the schedule of assets. Subsequently, the referee in bankruptcy abandoned the real estate and permitted a foreclosure on a mortgage against the real estate. The real estate was sold by the Sheriff. The issue presented before the court was whether the lien of Natoli’s judgments were indefinitely preserved by an adjudication of the debtors’ bankruptcy notwithstanding the fact that the lien had not been revived and that the real estate was thereafter sold by a mortgage foreclosure in state court. We held that the filing of the bankruptcy petition did not indefinitely preserve the lien of Natoli’s judgments. We rejected Natoli’s contention that the filing of the bankruptcy permanently fixed the status and priority of the judgment debtors’ lien creditors as of the time of the filing of the bankruptcy petition. We also noted that, at the time the bankruptcy referee had abandoned the real estate, the lien on Natoli’s judgments had already expired.

With respect to the Bank of Lancaster, it had revived its lien prior to the Abandonment Order of May 23,1979. With respect to the Seiple lien, the Judicial Code, 42 Pa.C.S.A. Section 5535(b) was in effect on June 25, 1979 (which was five years after its judgment was revived on June 26, 1974).

Reversed and remanded to the lower court with instructions to amend the Sheriff’s Schedule of Distribution, consistent with this Opinion.

DISALLE, J., did not participate in the consideration or decision of this case.

      . June 14, 1978 was a Wednesday.

      . If appellants are correct, these judgments would exhaust the balance of the Schedule of Distribution.

      . The repealed section has been replaced by the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A Section 5526(1).

      . Therefore, the filing of the Brewer Petition on September 1, 1977, automatically stayed the commencement or continuation of any efforts to enforce appellants’ liens against the Brewers, as a matter of federal law.