author: MONTGOMERY, Judge:

text:
    516 A.2d 770
    COMMONWEALTH of Pennsylvania, Appellee, v. Paul KAMENAR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Oct. 21, 1986.

      Bruce A. Antkowiak, Pittsburgh, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Appellant, Paul Kamenar, files the instant appeal following the denial of post-trial motions, and the imposition of a judgment of sentence upon his conviction on a charge of recklessly endangering another person. Numerous claims of error are raised on appeal.

The procedural and factual history of this case are somewhat unusual. The Appellant, a former police officer of the Kennedy Township Police Department, in Allegheny County, was originally charged with 110 counts of criminal violations. At a jury trial held in the case, the lower court, acting upon a defense motion, dismissed 106 of the counts at the close of the Commonwealth’s presentation of its evidence. The jury considered the four remaining charges, which were conspiracy, recklessly endangering another person, official oppression, and solicitation. The jury returned a verdict finding the Appellant guilty on the conspiracy and recklessly endangering another person counts. The Appellant thereafter submitted a motion for a new trial and/or in arrest of judgment. While the motion for a new trial was denied, the trial court granted the motion for arrest of judgment as to the conspiracy charge. The Appellant was thereafter sentenced on the single recklessly endangering charge, and this appeal followed.

A generalized and much condensed recitation of the facts will suffice for purposes of considering the matters pertinent to the disposition of this appeal. In essence, the record indicates that in approximately April, 1983, the Kennedy Township Police Department began to receive complaints of various types of incidents arising in a residential area of the municipality. Many such complaints came from Darlene Barron, a resident in the area. The reports included several involving incidents of gun shots in the area, over a period of several months. Surveillance of the area, especially near Ms. Barron’s home, was conducted on several occasions by police officers. On January 21, 1984, a Kennedy Township police officer conducting such surveillance from inside a residence next door to the Barron dwelling, observed someone discharge a hand gun out of the rear window of Ms. Barron’s home, and into a wooded hillside behind it.

After obtaining a search warrant, the police searched the Barron residence, recovered a firearm and ammunition, and placed Ms. Barron under arrest. During questioning by police, and again at trial, Ms. Barron related that she had been having an intimate relationship with the Appellant, and that he had purportedly provided ammunition, induced her to fire the gun into the hillside, and to make false reports, as part of a scheme to discredit his superior, the Chief of Police of the Kennedy Township Police Department.

As noted earlier, the Appellant raises numerous contentions of error, seeking the reversal of his conviction and judgment of sentence. Inter alia, he contends that the evidence was insufficient to support the charge of recklessly endangering another person. We find merit in that contention.

The charge of recklessly endangering another person is described in the Crimes Code, 18 Pa.C.S. § 2705, as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

The Appellant’s conviction and judgment of sentence may only be upheld if his conduct falls within the reasonable parameters of Section 2705. Of course, it is well established that the evidence is considered to be sufficient if it supports the verdict beyond a reasonable doubt, when construed in a light most favorable to the Commonwealth, with all proper inferences drawn to favor the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). A conviction, however, cannot be sustained upon mere conjecture or suspicion, and all the elements of the crime charged must be proven. Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983).

The recklessly endangering count upon which the Appellant’s conviction was based relates to the episode in which the single shot was fired by Ms. Barron from the rear window of her residence, into the hillside behind her home, on January 21, 1984. The police officer who observed the shot being fired, Officer Schelling, testified that he was at that time making his surveillance from inside the residence next door to Ms. Barron’s home. The officer was not able to actually identify the person who shot the gun, as from his vantage point he could only see an arm and hand extended from the window of Ms. Barron’s home, holding the gun which fired at the hillside.

This officer was asked for a physical description of the area including the Barron residence. He testified that there were no dwellings behind the Barron home, but rather that neighboring homes were on either side of the Barron property. All of the homes were in a valley or gully. Behind the residence of Ms. Barron, in the direction in which the shot was fired, a hillside arose at a 45 degree angle, approximately 75 feet upward to a tree line. The tree line was the border of a wooded area, apparently a plateau, at the top of the hill. There were no dwellings in this wooded area. Beyond this wooded area, from the direction of the back of the Barron residence, a hillside sloped downward, towards another residential area, and a highway.

The Appellant contends that there was no evidence that the shot which was fired by Ms. Barron on January 21, 1984 placed or may have placed any other person in danger of death or serious bodily injury, as required under the recklessly endangering statute set forth above. Even reviewing the facts in a light most favorable to the Commonwealth, and giving it the benefit of all inferences, we are constrained to agree with the Appellant’s reasoning. The evidence of record indicates that Ms. Barron discharged the weapon into a hillside which arose behind and above her home, which was not a place where any dwelling, other structure, or any other person was known to be located. From the description of the area, it appears that it would have been impossible for Ms. Barron to fire a gun in the direction of the hillside and possibly strike anyone other than a person on the hillside, or possibly at the edge of the tree line at the top of the hill, which was 75 yards above and behind her home.

The only person shown by the evidence to be in the area was the police officer who observed the shot being fired. At the time, this officer was located inside of a residence which was beside, but not behind the Barron dwelling. The lower court specifically resolved any issue regarding whether or not this officer was ever in a position to be endangered by Ms. Barron’s shot that day. In that regard, although the lower court refused to sustain a defense motion for a demurrer and for directed judgment on the recklessly endangering count upon which the Appellant was convicted, the trial judge did grant a demurrer as to another count relating to that incident, and stated: “ ... the court finds that Officer Schelling was never placed in danger and the Count is overpled.”

It is evident that there is a complete absence of evidence that Ms. Barron’s single discharge of the weapon out of the back window of her home, and into the hillside behind it, on January 21, 1984, placed or may have placed any other person in danger of death or serious bodily injury. While her conduct may have comprised some other offense, in the absence of evidence that Ms. Barron’s shot that day endangered or may have endangered another person, the Appellant’s conviction of recklessly endangering, based upon that incident, cannot be sustained. Compare Commonwealth v. Smith, 301 Pa.Super. 142, 447 A.2d 282 (1982); Commonwealth v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129 (1981); Commonwealth v. Baker, 287 Pa.Super. 39, 429 A.2d 709 (1981).

In light of our conclusion that there was insufficient evidence presented to sustain the specific charge of recklessly endangering upon which the Appellant was convicted, we deem it unnecessary to discuss any of the Appellant’s many remaining contentions of error. We must hold that the lower court erred in denying the defense motions for demurrer and/or directed verdict as to the recklessly endangering count based upon the January 21, 1984 conduct of Ms. Barron, and in thereafter denying the defense motion for arrest of judgment after the jury verdict was rendered on that count.

Accordingly, the judgment of sentence is vacated, the Appellant’s conviction is reversed, and he is discharged.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    516 A.2d 772
    Linda ROCCA, Appellant, v. PENNSYLVANIA GENERAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 10, 1986.
    Filed Oct. 24, 1986.

      Dennis Veneziale, Philadelphia, for appellant.
    Roger J. Harrington, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying a petition to compel arbitration by the appellant, Linda Rocca. We reverse.

The facts of record indicate that the appellant was a passenger in a vehicle which collided with another vehicle. The second driver’s insurance limited recovery to $25,-000.00, which was ultimately secured by the appellant in an out-of-court settlement. However, because the injuries sustained exceeded the policy limits of the second driver’s insurance, the appellant filed a claim with her parents’ insurance carrier, which provided for underinsured motorist coverage. This policy was issued by the appellee, Pennsylvania General Insurance Co., and listed the appellant as a named insured on the declaration sheet.

When the appellee refused to honor the appellant’s claim, the appellant notified it of her selection of an arbitrator to activate the dispute-resolution process afforded by the terms of the policy of insurance. Because the demand for arbitration was not answered, the appellant filed a petition to appoint arbitrators with the Court of Common Pleas. See 42 Pa.C.S. §§ 7305, 7342 (Supp.1986).

The appellee’s response, in the form of an answer and new matter, contended that the petition was “premature” in that the appellant, under the terms of its policy, was “required to pursue a claim against the [driver of the vehicle she was a passenger in] prior to bringing th[e] underinsured claim, because nothing [was] payable under th[e] endorsement[] until Petitioner ha[d] exhausted her claims against the tortfeasors who had liability insurance.” The court below agreed and entered an order confirming the denial of the petition. This appeal was timely filed and is properly before us. See 42 Pa.C.S. § 7302(a).

The sole issue raised relates to whether a claimant can compel an insurer to arbitrate a claim for benefits, in accordance with the terms of a policy, if the policy requirement of exhaustion of remedies — the “limits of liability” under any other applicable bond or policy — has not been first sought.

To begin with, it is settled law in this jurisdiction that when a party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the question of (1) whether an agreement to arbitrate was entered into and (2) whether the dispute involved comes within the ambit of the arbitration provision. See, e.g., Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975).

Instantly, the agreement to arbitrate is activated if the insurer and insured/person “do not agree: 1. Whether that person is legally entitled to recover damages ...; or 2. As to the amount of damages[.]” (See Exhibit B, page 6) Nevertheless, the appellee launches a three-pronged assault in support of its belief as to the prematurity of the arbitration demand by the appellant.

First, the appellee asserts that because the appellant’s entitlement to recovery is linked to her suit against the driver of the vehicle in which she rode (see note 2, supra), the arbitrators would be precluded from deciding what amount would be due the claimant under the terms of the underinsured motorist endorsement, which reads:

We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.

Essentially, we interpret the appellee’s argument to be a dispute over the “amount of damages” due the claimant, a topic specifically reserved in the arbitration section of the policy to a panel of arbitrators for resolution. (See Reproduced Record at 14a) This, necessarily, undermines the second of the appellee’s contentions, couched in terms that, procedurally, the language of the insurance contract required the appellant to pursue other policies of applicable insurance as a precondition to filing a claim with it. Absent this course of events, the appellee continues, the authority of the court below was properly invoked to hold in abeyance the appellant’s resort to arbitration as a method to resolve the dispute. We disagree on the basis of Harleysville Mutual Insurance Co. v. Medycki, 431 Pa. 67, 244 A.2d 655 (1968) and statutory law.

In Harleysville, an insured had submitted a claim under the uninsured motorist section of his policy. However, he refused to execute certain papers and supply the insurer with copies of legal documents evidencing a suit against the alleged uninsured motorist, as required by the terms of the policy. Instead, he filed a demand for arbitration with the American Arbitration Association (AAA) in accordance with the arbitration provision of his policy.

The insurer informed the insured that, because of his violation of the policy, his claim would not be processed. This same reason was given to the AAA regarding the claimed insurance owed, and was the basis for the insurer’s belief that the AAA had no jurisdiction to hear the claim. Further, the insurer filed a complaint in equity to enjoin the arbitration pending a judicial determination of the validity of the disclaimer of coverage, or, in the alternative, to halt the arbitration “until such time as [the insured] supplied [the insurer] with the information called for under the policy.”

The insured’s preliminary objections were sustained and the complaint was dismissed. On appeal, the Supreme Court framed the issue as one of whether the arbitration clause contemplated a resolution of the dispute. Since the policy concededly provided for uninsured motorist coverage, the Court had only to decide whether the insured’s alleged forfeiture of his right to the protection of the policy, by virtue of some non-compliance with provisions of the document, was a proper subject of review for the arbitrators. In concluding that the arbitrators possessed such competence, the Court stated its rationale in a manner which we find to be instructive:

... appellant argues that the arbitrator should not be permitted to decide an issue which has bearing upon all of the coverages of the policy, and that the arbitration should not be permitted to proceed until all conditions precedent to an action against the company have been fulfilled. While it is true that the notification provision of the policy is applicable to all of its coverages, and while it is also true that the policy states that: “No action shall lie against the company, unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy * * * ”, it must be borne in mind that the arbitration provision applies only to the uninsured motorists coverage. It follows, therefore, that with respect to that coverage, a dispute involving proper notification or compliance with policy provisions is to be determined by arbitration and not judicially. The arbitrator, in short, can determine not only whether the insured has forfeited his coverage, but also whether he has complied with the conditions precedent to any right against the carrier.

431 Pa. at 73, 244 A.2d at 657-58.

At bar, as in Harleysville, the insurer urges that the non-compliance with certain prerequisites set forth in the policy (there, the submission of loss reports and signed documents; here, the exhaustion of other applicable liability policies) forecloses the matter from proceeding to arbitration.

However, one must not lose sight of the fact that the arbitration provision here embraces a determination of a claimant’s entitlement to (all) damages — which would include those sought under the “Underinsured Motorist” provision of the policy, as well as the amount involved. The two are intertwined and are affected by the satisfaction of the remedies afforded (by other applicable bonds or policies) to the claimant. Ergo, it necessarily follows that, with regard to the damages and the efforts of the claimant against other sources to satisfy the same, adherence to policy language is to be decided in the context of arbitration and not in a judicial forum. Id.; Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); cf. Wolf v. Baltimore, 250 Pa.Super. 230, 234, 378 A.2d 911, 913 (1977) (“... to be consistent with the general policy favoring the arbitration of contractual differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute.” (Citation omitted)). We find the discussion renders meritless the last prong of the appellee’s argument advising against the case proceeding to arbitration, which relates to its “right” to have its liability reduced by all sums paid the appellant by those legally accountable under principles of tort law.

The arbitrators can always set-off the amounts received by the appellant when, and if, an award is made. The arbitrators may determine that the conditions precedent under the policy have not been satisfied, and thus abate the right to obtain damages until the contractual sine qua non has been met. However, it is for the arbitrators, and not the court, to decide whether the procedural requisites have or have not been satisfied.

As always, the arbitration agreement controls the scope of authority wielded by the arbitrators. Here, the agreement does not specify that the arbitrators shall have no jurisdiction over procedural matters dealing with the abeyance of damage disputes, and we will not impose such a limitation where none exists in the agreement. See Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976).

Further, we deem it appropriate to mention the preference accorded to the resolution of procedural matters by arbitrators by the United States Supreme Court in Wiley & Sons v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964):

Once it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration, “procedural” questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.

Accord School District of the City of Duquesne v. Duquesne Education Association, 475 Pa. 279, 380 A.2d 353 (1977); Kardon v. Portare, supra; Shaler Area Education Association v. Shaler Area School District, 61 Pa.Cmwlth. 211, 433 A.2d 168 (1981).

The last remark we wish to make in support of our ruling draws its strength from the Uniform Arbitration Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S. § 7301 et seq. Neither the litigants nor the court below refer to its impact on the case.

Of relevance to us is Section 7304, which has been made specifically applicable to common law arbitration (see 42 Pa.C.S. § 7342(a)(Supp.1986)) and provides in unequivocal terms that a “court shall order the parties to proceed with arbitration” when an application to compel arbitration shows an agreement to arbitrate and the opposing party is shown to refuse to so proceed. 42 Pa.C.S. § 7304(a). The only way to circumvent the path leading to arbitration is by “showing that there is no agreement to arbitrate.” If this transpires, then the court is empowered, if it wishes, to order a stay of the arbitration proceedings. 42 Pa.C.S. § 7304(b). Otherwise, the course is clearly marked, and it leads directly to the arbitrators’ door.

We have already recounted instantly the existence of an agreement to arbitrate between the parties. This, when coupled with a determination that the condition precedent of exhaustion of remedies/other policies or bonds is a matter for the arbitrators to resolve, leads inexorably to a conclusion requiring a reversal of the court’s order denying the appellant’s petition to compel arbitration. See 42 Pa.C.S. § 7304; Harleysville, supra.

Order reversed. Jurisdiction is relinquished.

      . The declaration page of the policy of insurance listed the appellant as a named insured, that coverage included “underinsured motorists” and that evidence of the same was discernible from endorsements made to the policy and appearing on the bottom lefthand corner of the declaration sheet. One of the endorsements was listed as PP0311, which referred to the “Underinsured Motorist Coverage” purchased in the amount of $300,000 and reproduced in the record at page 44a.

      . We would also observe that the appellee, and the court alike, would have us hold that the appellant must await the outcome of her suit against the driver of the vehicle in which she was a passenger (satisfy this condition precedent) before the insurer is required to arbitrate her claim. This information is garnered from the appellee’s brief at page 3, wherein it is written that the appellant has instituted suit against the driver of the vehicle in which she was a passenger in the Court of Common Pleas of Bucks County at No. 85-000642-052. The suit is not yet resolved.

      . Parenthetically, we would note that if recovery were secured against the appellee, it would always have recourse through its subrogation or indemnification provisions in the policy to recoup that which it paid out to the appellant.


author: WICKERSHAM, Judge:

text:
    516 A.2d 1187
    Patricia DiNARDO and Joseph DiNardo, H/W, Appellants, v. CENTRAL PENN AIR SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued May 15, 1986.
    Filed Sept. 19, 1986.
    Reargument Denied Nov. 10, 1986.

      Stuart Fiel, Philadelphia, for appellants.
    Byrna S. Greenblatt, Philadelphia, for appellee.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order dated October 17, 1985, granting appellee’s petition to open/strike the default judgment entered against it. We reverse.

On or about February 14, 1984, it is alleged that Jere H. Sweigart, an employee of Central Penn Air Services, appellee herein, was operating a company truck in a negligent and reckless manner, and further, that the truck collided with an automobile that Mrs. DiNardo, appellant, was operating at the Philadelphia International Airport. Thereafter, appellants filed a civil action sounding in negligence against appellee and its employee on November 23, 1984. Service of the complaint was made on Mr. Sweigart on December 6, 1984. Service was returned non est inventus, however, upon appellee, Central Penn Air Services. Unable to personally serve appellee, a petition for alternative service of process was filed by appellants pursuant to local rule. By order dated January 31, 1985, the lower court granted the petition thereby allowing service upon appellee by regular mail, certified mail, and posting of a sheriffs notice. Appellants were successful in serving appellee by registered mail, the return being dated February 22, 1985.

Upon appellee’s failure to respond, appellants served a Pa.R.C.P. No. 237.1 notice upon them. Still receiving no response, appellants filed a praecipe to enter default judgment against Central Penn Air Services on May 16, 1985. A judgment by default was thereafter entered against appellee. On August 12, 1985, appellee filed a petition to open/strike the default judgment; appellants filed an answer thereto. By order dated October 17, 1985, the lower court ultimately granted the petition and opened the default judgment. Appellants timely appealed from the order pursuant to Pa.R.A.P. 311(a)(1).

Appellants raise three issues for our review and consideration:

I. Was the record ripe for judicial determination when the court below considered the petition to open/strike [the] default judgment despite the fact that no depositions were taken?
II. Was the petition to open/strike [the] default judgment “promptly” filed so as to satisfy that element of the tripartite test regarding the opening of a default judgment?
III. Was an adequate excuse for the failure to timely answer the complaint plead and proven so as to satisfy that element of the tripartite test regarding the opening of a default judgment?

Brief for Appellant at 3.

‘[O]ur scope of review on appeals from the lower court’s grant or denial of a petition to open judgment is very narrow. A petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court’s discretion in either opening or refusing to open a judgment ..., will not be disturbed on appeal unless the lower court has committed a manifest abuse of discretion or an error of law.’

Lazzarotti v. Juliano, 322 Pa.Super. 129, 133, 469 A.2d 216, 218 (1983) (citation omitted). “Because the decision whether to open a judgment is an equitable one, it depends on the particular facts of each case; there are no bright line tests, Quatrochi v. Gaiters, 251 Pa. [Super.] 115, 380 A.2d 404 (1977), and the cases are not easy to reconcile. Duffy v. Gerst, 286 Pa.[Super.] 523, 429 A.2d 645 (1981).” Provident Credit Corp. v. Young, 300 Pa.Super. 117, 124, 446 A.2d 257, 261 (1982).

Appellants contend that the court acted prematurely in granting appellee’s petition to open without first considering proof of the petition’s averments.

It is well settled that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof____ Pa.R.C.P. 209 provides the procedure for establishing such proof. Pursuant to Rule 209, the petitioner must either take depositions on disputed factual issues or ordér the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer.

Lazzarotti v. Juliano, supra, 322 Pa.Superior Ct. at 134, 469 A.2d at 218 (1983) (citations and footnote omitted) (emphasis in original). The record before us indicates that appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions, or order the cause for argument on petition and answer. Neither did appellant, as respondent, take a rule on appellee to show cause why he should not either proceed to take depositions or order the cause for argument on petition and answer. It is recognized that “Rule 209 place[s] no time limits on either party to proceed, and until either party [takes] action ... or until some other force spurred matters along, the court could not properly act on [the] petition.” Triffin v. Thomas, 316 Pa.Super. 273, 279-80, 462 A.2d 1346, 1349-50 (1983) (footnote omitted). Accord Maurice Goldstein Co., Inc. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977) (Rule 209 places no time limit on parties to take action).

For Pa.R.C.P. No. 209 to be applicable, there must exist disputed factual issues. It is the position of appellee that the answer to its petition to open was replete with admissions and conclusions of law but did not contain a single denial of a material fact. Pa.R.C.P. No. 1029(b) mandates that “[a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication.” We must determine whether appellants have met their burden thereunder. An independent review of the petition and answer reveal that appellants failed to specifically, or by necessary implication, deny averments in the petition to open. Therefore, there being no disputed factual issues, Rule 209 is inapposite to this action. We find that the petition was ripe for review by the court below.

Appellants next attempt to pursuade us that the petition to open was not “timely” filed and that appellee did not plead or prove an adequate excuse for its delay. “The law does not establish a certain number of days which constitutes a cutoff point between a prompt filing of a petition to open and one which is not timely filed.” King v. Evans, 281 Pa.Super. 219, 224, 421 A.2d 1228, 1230 (1980). “In short, there is simply no ‘magic’ number which will determine whether a petition is timely or not.” Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 120, 419 A.2d 688, 690 (1980). In some cases it is evident that the petition to open has been promptly filed. See Penneys v. Richard Kastner Co., Inc., 297 Pa.Super. 167, 443 A.2d 353 (1982) (allocatur denied) (3 days); Cruse v. Woods, 279 Pa.Super. 242, 420 A.2d 1123 (1980) (6 days); Quaker Transit Company, Inc. v. Jack W. Blumenfeld and Company, 277 Pa.Super. 393, 419 A.2d 1202 (1980) (4 days); DiNenno v. Great Atlantic and Pacific Tea Co., Inc., 245 Pa.Super. 498, 369 A.2d 738 (1976) (15 days).

Instantly, however, appellee did not file its petition to open until eighty-eight (88) days after entry of judgment against it. The record indicates that the default judgment was entered on May 16, 1985, and apparently notice of same was received by appellee’s insurer on June 26, 1985. See Brief for Appellee at 14. The petition to open was filed on August 12, 1985. Appellee avers, and the lower court found, that its interests were being protected by the insurer and therefore, it possessed a justifiable excuse for its delay. We disagree.

The lower court cites Autologic Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362 (1984), in support of its finding of a reasonable excuse for delay. Autologic did indeed acknowledge that a default attributable to an insured’s belief that his legal interests were being protected by his insurance company is a justifiable excuse. The court went on to say, however: “if the insured fails to inquire of the insurer as to the status of the case after events have occurred which should have reasonably alerted the insured to a possible problem, the insured is precluded from asserting a justifiable belief that its interests were being protected.” Id., 333 Pa.Superior Ct. at 176-77, 481 A.2d at 1363 (emphasis in original). Appellee was in receipt of a letter addressed from private counsel to its insurer urging a quick response to “avoid a default judgment.” Thereafter, appellant served appellee by mail with a Rule 237.1 notice on March 28, 1985.

[W]e see no reason why, at the very least, [appellee] would not have sought assurances from its insurance carrier that it was being represented. Certainly, this notice should have indicated to appell[ee] that there was some possibility that the insurance company was not aware of the complaint. Indeed, such inquiry is precisely the response intended by Pa.R.C.P. 237.1, which mandates that notice of the praecipe for entry of a default judgment be sent to the party against whom judgment is to be entered and to his attorney, if any.

Id., 333 Pa.Superior Ct. at 177, 481 A.2d at 1363-64.

We find, therefore, that appellee did not act in a manner which would enable it to justifiably rely upon legal representation by its insurance company. Appellee’s failure to answer the complaint was not due simply to the failure of its insurance company, but also to Central Penn’s failure to seek reassurances that actions were being taken on its behalf after events had occurred which should have reasonably alerted it that a problem existed.

Having found no justifiable explanation as to appellee’s failure to answer or otherwise plead, we hold that the petition to open, filed eighty-eight days after entry of the default judgment, was not promptly filed. See Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) (55 days — not promptly filed); Texas and Block House Fish and Game Club v. Bonnell Run Hunting and Fishing Corp., 388 Pa. 198, 130 A.2d 508 (1957) (27 day delay excessive); Quatrochi v. Gaiters, supra (court abused discretion in granting petition to open filed 63 days after notice of default judgment); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977) (47 day delay not timely); Carducci v. Albright Galleries, Inc., 244 Pa.Super. 48, 366 A.2d 577 (1976) (54 days); Smith v. Tonon, 231 Pa.Super. 539, 331 A.2d 662 (1974) (3 week delay not timely).

We hold that the lower court abused its discretion in granting appellee’s petition to open. We, therefore, reverse the order of October 17, 1985.

Order reversed and judgment reinstated.

      . The record reflects that Central Penn Air Services, Inc. had liquidated its assets and ceased doing business as Central Penn on or about March 3, 1984.

      . A default judgment was entered against Jere H. Sweigart on April 18, 1985, as well. Mr. Sweigart is not party to this appeal.

      . Appellant raises issue with the fact that counsel for the appellee executed the verification of the petition to open without any explanation as to the source of his information or why the verification was not made by a representative of appellee in violation of Pa.R.C.P. No. 1024(c). We feel that counsel for appellee has not satisfied the requirements of Pa.R.C.P. No. 1024(c) but will not address the issue further in light of our disposition of this case.

      . Appellee contends that the complaint served on February 22, 1985, was sent to the company’s president, who forwarded the complaint to his personal counsel. This attorney, in turn, sent the complaint to Active Insurance Services, agent of Home Insurance Company, appellee’s insurer. By letter dated March 4, 1985, appellee’s president’s personal counsel instructed the insurer that it was expected to undertake defense of the complaint and that action should be taken “quickly" on appellee's behalf “in order to avoid a default judgment.” See Appellee’s Exhibit B (apparently received by appellee as stamped on March 5, 1985).

      . The record does not reflect how appellee’s insurer received notice of the default. We can only infer, based upon the record before us, that the Rule 237.1 notice addressed to appellee reached them at one point in time and was forwarded to the insurer, as were previous pleadings.


text:
    516 A.2d 1191
    Robert C. NAGLE, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted June 2, 1986.
    Filed Oct. 20, 1986.

      Donald F. Smith, Jr., Reading, for appellant.
    James M. Lillis, Reading, for appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   WICKERSHAM, Judge:

In July of 1976 plaintiff-appellant Robert C. Nagle was injured in an accident when he was attempting to attach an automobile to a tow truck. The automobile was struck from behind by a vehicle operated by one Jeffrey T. Shealer, an employee of Tecnad Enterprises. The vehicle operated by Shealer was owned by Larry J. Weller, but was allegedly being operated without permission.

Appellant, who was at the time a member of his father’s household (Charles F. Nagle) requested uninsured motorist benefits from appellee Allstate Insurance Company, which insured Charles’s vehicles. Allstate refused to submit to arbitration or to appoint an arbitrator, and denied any uninsured motorist benefits to appellant. The lower court, by the Honorable W. Richard Eshelman, denied a petition to compel Allstate to submit appellant’s claim for uninsured motorist benefits to arbitration. This appeal followed, and the issue is stated as:

III. Whether Robert C. Nagle is entitled to have his claim for uninsured motorist benefits arbitrated as provided by the insurance contract despite his having entered into settlement without the consent of the uninsured motorist insurer?

Brief for Appellant at 3.

In his memorandum opinion dated March 12, 1986 Judge Eshelman gives us the further facts:

Plaintiff responded by commencing the within action in equity by writ of summons against defendant. Plaintiff then filed a petition to compel arbitration. Defendant alleged in its motion to dismiss plaintiff’s petition, which accompanied defendant’s answer to the petition, that settlements were entered into by plaintiff with Weller and Tecnad without defendant’s consent thereby precluding uninsured motorist coverage under the Uninsured Motorist Act, 40 P.C.S.A. Sec. 2000(e)(2). In plaintiff’s answer and new matter in response to defendant’s motion to dismiss, plaintiff admitted that he entered into agreements of settlement for one thousand dollars each with Weller and Tecnad after naming them as co-defendants with Shealer in an action of trespass arising from this accident (i.e., No. 127 August 1978, Berks County), and that plaintiff had prosecuted the action in trespass to judgment against Shealer for two hundred thousand dollars. Defendant had neither consented to the action in trespass against Shealer, Weller and Tecnad nor to plaintiff’s settlement of claims against Weller and Tecnad.
After argument and consideration of briefs filed, the court denied plaintiff's petition to compel arbitration and granted defendant’s motion to dismiss plaintiff’s petition. Upon praecipe by plaintiff, judgment was entered in the within action based on the final order entered January 2, 1986. Plaintiff argues that the court committed error by failing to compel arbitration because the insurance contract, which is the basis of this action for uninsured motorist benefits, provides that a disagreement as to the right to receive benefits is to be submitted to arbitration.

Lower ct. op. at 2.

Judge Eshelman then concluded that:

The uninsured motorist benefits coverage required by the Uninsured Motorist Act does not apply to “bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor.” 40 P.C.S.A. Sec. 2000(e)(2). The Pennsylvania Superior Court has held that this section precludes recovery of uninsured motorist benefits from the insurer if the insured enters into a settlement without the insurer’s consent. Cotton v. Insurance Company of North America, [344 Pa.Super. 602,] 497 A.2d 254 (1985). Admittedly the Cotton case did not involve a request for arbitration but rather a claim under the Pennsylvania Assigned Claims Plan. However, the legal principle involved in Cotton is equally applicable to the present case. It is undisputed that the plaintiff entered into settlements with Weller and Tecnad, who may have been legally liable for bodily injuries sustained by plaintiff. “The conclusion is therefore inescapable that [plaintiff’s] settlement precluded them from receiving ‘[t]he coverage required by [the Uninsured Motorist Act].’ ” Id., 344 Pa.Superior Ct. at 604, 497 A.2d at 255.
By virtue of his settlements with Weller and Tecnad, and prosecution of Ms claim against Shealer to judgment, plaintiff was precluded from receiving coveraA' under the uninsured motorist clause of his policy due to 40 P.C.S.A. Sec. 2000(e)(2). Therefore there was no issue to submit to arbitration. Accordingly plaintiff’s petition to compel arbitration was properly denied.

Lower ct. op. at 3-4.

In Cotton v. Insurance Co. of North America, 344 Pa.Super. 602, 497 A.2d 254 (1985), speaking through former President Judge Spaeth, we said:

This appeal is from an order granting summary judgment. Appellants were uninsured passengers in an uninsured motor vehicle when it collided with an insured motor vehicle. Upon application to the Pennsylvania Assigned Claims Plan, appellee was designated appellants’ assigned obligor. Subsequently, without appellee’s knowledge, appellants entered into a settlement agreement with the driver of the insured vehicle. The trial court held that under the Uninsured Motorist Act, 40 P.S. § 2000(e)(2), appellants’ settlement precluded their recovery of uninsured motorist benefits from appellee. We agree, and therefore affirm.

The Uninsured Motorist Act provides in part:

(e) The coverage required by this section does not apply:
(2) To bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor. 40 P.S. § 2000(e)(2).
Appellants were to have received uninsured motorist benefits from appellee. Thus appellee was to have provided “[t]he coverage required by this section.” It is undisputed that appellants entered into a settlement with an insured driver, i.e., with a “person who may [have been] legally liable” for the “bodily injuries] sustained by the insured[s].” The conclusion is therefore inescapable that appellants’ settlement precluded them from receiving “[t]he coverage required by [the Uninsured Motorist Act].” See 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under pretext of pursuing its spirit.”). See also In re Fox’s Estate, 494 Pa. 584, 431 A.2d 1008 (1981); Salvado v. Prudential Property and Casualty Insurance Co., 287 Pa.Super. 304, 430 A.2d 297 (1981).
Appellants argue that despite the plain words of the statute, they are entitled to receive uninsured motorist coverage because, in their view, the statute is meant to preclude settlements with uninsured motorists only. Appellants reason that such an interpretation would not prejudice appellee’s subrogation rights, and they rely upon cases that have held that only settlements with uninsured motorists are precluded.
In its opinion, the trial court, per DOTY, J., noted that the purpose of section 2000(e)(2) is to protect the subrogation rights of the insurer. We agree and are unable to understand appellants’ argument that the construction they urge would not prejudice appellee. If appellee had paid appellants uninsured motorist benefits, it would then have been entitled to seek recovery of the amounts so paid from the drivers involved in the accident. In attempting that recovery it would no doubt have been confronted by the insured motorist’s refusal to pay anything more on the ground that as a result of a joint tortfeasor release between him and appellants, he had been “forever discharge[d]” “from any and all actions, causes of action, claims, demands____” arising out of the accident. While it is true that appellee might still have sued the uninsured motorist, we may assume that its chance of recovering from the uninsured motorist would be less than its chance of recovering from the insured motorist.

Id., 344 Pa.Superior Ct. at 603-04, 497 A.2d at 254-55.

We agree with Judge Eshelman that Cotton controls the instant case. While it appears that appellant’s claim for uninsured motorist benefits must ultimately fail, he still contends that the lower court should have referred his claim to arbitration. Cotton did not involve a request for arbitration and is thus of little benefit to our determination of whether arbitration should have been compelled.

Appellant’s argument seems to be bolstered by our recent decision in McGinley v. Allstate Insurance Co., 352 Pa.Super. 139, 507 A.2d 420 (1986). In that case, the insureds were injured in a motor vehicle accident and wished to make a claim pursuant to the uninsured motorist coverage of their policy with Allstate. They filed a petition for appointment of an arbitrator, which was denied by the lower court. Our court reversed, holding that the lower court’s denial of the insured’s petition to name an arbitrator was improper following the showing of a valid contract of insurance between the parties which contained an agreement to arbitrate the application or construction of the uninsured motorist clause.

We held in McGinley that the question of whether an arbitrator should have been appointed was controlled by 42 Pa.C.S. § 7304. “[Section 7304] is clear. Uninsured motorist claims, if agreement cannot be reached by the parties, must be submitted to statutory arbitration____ When the parties have agreed to resolve all disputes by arbitration, arbitration is the procedure which must be followed.” Id., 352 Pa.Superior Ct. at 143, 507 A.2d at 422, quoting Cunningham v. Prudential, 340 Pa.Super. 130, 134-35, 489 A.2d 875, 878 (1985).

The arbitration clause in McGinley and the arbitration clause in the instant case differ in one important aspect, however. Instantly, the arbitration clause states in pertinent part:

If We Cannot Agree
If we or you don’t agree on your right to receive any damages or the amount, then upon the written request of either the disagreement will be settled by arbitration. Arbitration will take place under the rules of the American Arbitration Association unless we or you object. Then, you’ll select one arbitrator and we will select another. The two arbitrators will select a third. If they can’t agree on a third arbitrator within 30 days, the judge of the court of record in the county of jurisdiction where arbitration is pending will appoint the third arbitrator. You will pay the arbitrator you select and we will pay the one we select. The expense of the third arbitrator and all other expenses of arbitration will be shared equally____

R.R. at 36a (emphasis added).

As we noted in Gentile v. Weiss, 328 Pa.Super. 475, 477 A.2d 544 (1984), if the contract calls for arbitration under the rules of the American Arbitration Association, then the statutory provisions of the Uniform Arbitration Act, including section § 7304, are not applicable.

“The Arbitration Act [42 Pa.C.S. § 7301 et seq.] does not apply unless it is expressly or impliedly provided for by the parties and its procedures are followed.” Runewicz v. Keystone Insurance Co., 476 Pa. 456, 460, 383 A.2d 189, 191 (1978) (footnote added). Its provisions are applicable “only if the arbitration agreement specifically refers to the Act or there is other evidence, subsequent to the agreement, that the parties expressly or implicitly agreed that it should apply.” Hart v. State Farm Mutual Automobile Insurance Co., 288 Pa.Super. 53, 57, 431 A.2d 283, 285 (1981), overruled on other grounds, White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713, aff'd, 500 Pa. 103, 454 A.2d 982 (1982). See also: Gallagher v. Educator and Executive Insurers, Inc., 252 Pa.Super. 414, 417, 381 A.2d 986, 987 (1977). Here, neither the agreement to arbitrate nor any subsequent agreement between the parties provided for statutory arbitration. Common law principles, therefore, were applicable. Campbell-Ellsworth, Inc. v. Holy Trinity Serbian Orthodox Church-School Congregation, 233 Pa. Super. 126, 336 A.2d 346 (1975). Moreover, the parties in the instant case agreed that the arbitration was to be held according to rules of the American Arbitration Association; and they agreed to be bound by the result. This “constitutes failure to follow the procedures of the Arbitration Act and [is], therefore, inconsistent with it so as to be sufficient in itself to make the arbitration at common-law.” Runewicz v. Keystone Insurance Insurance Co., supra, 476 Pa. at 461, 383 A.2d at 191.

Id., 328 Pa.Superior Ct. at 479, 477 A.2d at 545-46.

Therefore, the provisions of section 7304 are not applicable to the instant agreement.

Nonetheless, it appears that despite appellant’s inability to recover uninsured motorist benefits due to Cotton, supra, we are constrained to hold that the matter should have proceeded to arbitration pursuant to appellant’s request. The insurance contract between the parties plainly required that disputes over uninsured motorist coverage be submitted to arbitration. The parties clearly had a dispute over whether appellant was entitled to such benefits. Therefore, in accordance with the policy language, arbitration became compulsory at the request of either party.

Even though this is a case involving common law arbitration, making McGinley, supra, nondispositive, there is a long line of caselaw holding that even in dealing with common law arbitration, questions concerning the application or construction of the uninsured motorist clause fall within the exclusive jurisdiction of the arbitrators. See, e.g., Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978) (broad power of arbitrators has been repeatedly recognized in uninsured motorist cases, and their decision is final as to whether conditions precedent for coverage have been complied with, whether claim is barred by statute of limitations, whether injured party is included among those covered, and whether motorist is in fact uninsured); Borough of Ambridge Water Authority v. J.Z. Columbia, 458 Pa. 546, 328 A.2d 498 (1974) (same); Allstate Insurance Co. v. McMongale, 449 Pa. 362, 296 A.2d 738 (1972) (issue of whether policy which provided for arbitration of disputes arising under uninsured motorist coverage was in force on day of accident was itself subject to arbitration under such provisions); Harleysville Mutual Insurance Co. v. Medycki, 431 Pa. 67, 244 A.2d 655 (1968) (dispute over whether insured has forfeited his right to coverage because of non-compliance with provisions of policy is a matter for arbitration); National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968) (all disputes arising under uninsured motorist coverage are covered by arbitration agreement and should be determined by arbitration); White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713 (1982), aff'd, 500 Pa. 103, 454 A.2d 982 (1982) (questions under uninsured motorist clause with an arbitration provision are within exclusive jurisdiction of arbitrators); Reinhart v. State Automobile Insurance Association, 242 Pa.Super. 18, 363 A.2d 1138 (1976) (same); Webb v. United Services Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974) (same). Accordingly, we reverse the order of the court below.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellant instituted suit against Shealer, Weller, and Tecnad. Shealer was denied coverage by his own insurer as well as by the insurer for the Weller vehicle. Because of the denial of coverage to Shealer, appellant claimed uninsured motorist benefits from appellee Allstate. Without the consent of Allstate, appellant entered into a settlement with Weller and Tecnad. The case proceeded against Shealer, and a judgment was eventually obtained against him.

      . The Petition to compel Arbitration provided:
      1. That [appellant] is an individual who resides at 914 Hearthstone Lane, Sinking Spring, Berks County, Pennsylvania.
      2. That the Defendant, Allstate Insurance Company (hereinafter referred to as “Allstate”) is an insurance company with a principal office located at the Sears Department Store, Berkshire Mall, Woodland Road, Wyomissing, Berks County, Pennsylvania.
      3. That the Defendant is engaged in the Commonwealth of Pennsylvania in the business of writing insurance and issuing insurance policies and entering into insurance contracts, and specifically engages in the business of insuring individuals under uninsured motorist coverage.
      4. That on or about July 24, 1976, your Petitioner was attaching a 1967 Pontiac Station Wagon to a tow truck on Lancaster Avenue, Reading, Berks County, Pennsylvania, at the intersection with the West Shore Bypass.

        5. That at the aforesaid time and place, an automobile driven by Jeffrey Thomas Shealer collided with the rear of the aforesaid 1967 Pontiac, thereby causing it to collide with your Petitioner which resulted in serious injuries to him.
      6. That at the time of the aforesaid collision, Jeffrey T. Shealer was an insured under an automobile liability policy issued by Aetna Casualty and Surety Company.
      7. That the Aetna Casualty and Surety Company has denied coverage to Jeffrey T. Shealer for the aforesaid collision, but a suit concerning Aetna’s denial of coverage is pending before this Court at No. 375 April, 1983 and the issue of coverage being provided by Aetna has not yet been resolved.
      8. That at the time of the aforesaid collision, your Petitioner resided with his father, Charles F. Nagle, at 321 Pershing Boulevard, Reading, Berks County, Pennsylvania.
      9. That on the date of the aforesaid collision, Charles F. Nagle had an automobile insurance policy with Allstate on three vehicles. This policy provided Fifteen Thousand Dollars ($15,000) per individual, Thirty Thousand Dollars ($30,000) per accident in uninsured motorist coverage.
      10. The Defendant has a copy of the policy issued to Charles F. Nagle and is familiar with the contents of it. This policy is incorporated herein by reference.
      11. That the aforesaid Allstate policy defines an "uninsured motor vehicle” as including a land motor vehicle of any type to which a bodily injury liability policy applies at the time of the accident but the insuring company denies coverage.
      12. That your Petitioner has requested payment of the uninsured motorist coverage on the three vehicles covered by the policy issued to Charles F. Nagle.
      13. Damages resulting from the injuries suffered by your Petitioner in the aforesaid collision greatly exceed the total of the uninsured motorist coverage provided by Allstate in the policy issued to Charles F. Nagle.
      14. That the Defendant has denied your Petitioner’s claim for benefits under the uninsured motorist coverage.
      15. That the dispute between the Petitioner and the Defendant comes within the class of disputes, which under the arbitration clause of the contract, must be submitted to arbitration. That on June 22, 1984, counsel for your Petitioner requested the Defendant to appoint an arbitrator in order to resolve the issue.
      16. The Defendant has refused to appoint an arbitrator and persists in its refusal to submit the dispute to arbitration.
      17. Any party aggrieved by the failure, neglect and refusal of another to perform under a written agreement for arbitration is entitled to petition the Court of Common Pleas for an Order to Show Cause why such arbitration should not proceed in the manner provided for in such agreement.
      WHEREFORE, your Petitioner prays your Honorable Court to grant a rule upon the Defendant to show cause why the Petition To Compel Arbitration should not be granted and to grant any additional remedies to which the Plaintiff may be entitled.
      Brief for Appellant at 3a-6a.

      . See also Littlejohn v. Keystone Insurance Co., 353 Pa.Super. 63, 509 A.2d 334 (1986) (insured who entered into a settlement agreement with tortfeasor without written consent of insurer precluded from recovering uninsured motorist benefits).

        Compare Sparler v. Fireman’s Insurance Co. of Newark (J. 75028/85, filed April 8, 1986) involving a suit to recover underinsured coverage benefits and where appellant had previously granted a general release to the tortfeasor. We held that while a general release to a tortfeasor is not so broad as to release the insurer as well, the policy itself contained restrictive language which discharged the insurer’s obligation to pay underinsurance benefits.
      In this case, however, the release executed by appellant did have an adverse effect on appellant’s rights to recover under his policy. Certain restrictive language in appellant’s policy rendered the release fatal to appellant’s recovery from appellee. This policy was made part of the record below and included in a section (Part 6) entitled “Uninsured (and Underinsured) Motorists.” Part 6C stated: C. RESTRICTIONS ON YOUR UNINSURED MOTORISTS COVERAGE
      We do not cover:
      ******
      (a) any person if that person or the legal representative settles the bodily injury claim without our written consent.
      Appellant in fact did not receive the written consent of the appelleeinsurer before settling with the tortfeasor. Thus, the release of the tortfeasor served to excuse the appellee from paying underinsured benefits, as the appellant failed to satisfy the restrictive terms of the policy.

        Id. at slip op. at 2. We note that the policy in the instant case contained similar language stating that coverage did not apply to any person insured who makes a settlement without the insurer’s written consent. R.R. at 35a. However, the decision in Sparler is inapposite in any event because the Sparler case involved a claim for underinsurance motorist benefits, not uninsured motorist benefits, and thus the provisions of the Uninsured Motorist Act, which control the instant decision, were not applicable in Sparler. We note that reargument of Sparler before the court en banc was granted on June 16, 1986.

      . 42 Pa.C.S. § 7304 states in pertinent part:
      § 7304. Court proceedings to compel or stay arbitration
      (a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.
      ******
      (e) No examination of merits. — An application for a court order to proceed with arbitration shall not be refused, nor shall an application to stay arbitration be granted, by the court on the ground that the controversy lacks merit or bona fides or on the ground that no fault or basis for the controversy sought to be arbitrated has been shown.


author: HOFFMAN, Judge: HESTER, Judge,

text:
    516 A.2d 1197
    COMMONWEALTH of Pennsylvania v. Raymond W. PETERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted July 21, 1986.
    Filed Oct. 22, 1986.

      Vincent P. Difabio, Philadelphia, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s plea of guilty to two charges of possession of a controlled substance with intent to deliver, one charge of possession of a controlled substance, and one charge of criminal conspiracy. Appellant contends that the lower court erred when it failed to consider any factor other than the nature of the crimes charged when sentencing him. We find that this contention has merit and, therefore, reverse the judgment of sentence and remand the case for resentencing.

Appellant was arrested after the sale of hashish and marijuana to an undercover police officer. See Lower Court Opinion at 1. Following appellant’s arrest, a search warrant was procured for his home, and a small amount of marijuana was seized. Appellant entered a plea of guilty to the above charges and was sentenced to terms of imprisonment of one-to-two years on each of the possession with intent to distribute charges and a six-to-twelve month term of imprisonment on the possession charge. Sentence was suspended on the criminal conspiracy charge. All sentences were to be served consecutively, for an aggregate sentence of two-and-one-half-to-five years imprisonment. A timely motion to reconsider sentence was filed and denied. This appeal followed.

Appellant contends that the lower court erred in failing to consider factors other than the nature of the crimes involved in sentencing him. We agree. The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court, and it will not be disturbed on appeal unless the sentence exceeds the statutory maximum or is so excessive so as to constitute a manifest abuse of discretion. Commonwealth v. Sanders, 339 Pa. Superior Ct. 373, 381, 489 A.2d 207, 211 (1985). However, a sentencing court must consider the history, character, and condition of the defendant and not only the nature and circumstances of the crime in imposing sentence. 42 Pa.C. S.A. § 9725. See also Commonwealth v. Arent, 352 Pa.Superior Ct. 520, 523, 508 A.2d 596, 597 (1986). Additionally, the court must consider the rehabilitative needs of the defendant, the need for the protection of the public as well as the gravity of the offense. Commonwealth v. McCall, 320 Pa.Superior Ct. 473, 480, 467 A.2d 631, 634 (1983). A statement by a sentencing court in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing. See Commonwealth v. Holler, 326 Pa.Superior Ct. 304, 308, 473 A.2d 1103, 1106 (1984).

A review of the transcript of the sentencing hearing reveals that appellant had no prior criminal record, a good work history and an excellent relationship with his young son. See N.T. January 13, 1986 at 1-15. However, the sentencing court based its sentence totally upon the nature of the crimes charged. At sentencing, the court stated its reasons for the sentence, in part, as follows:

Drugs are a blight, they’re a curse on society, and I know that there are many people out there who are weak and who use drugs and alcohol, who can’t really help themselves. Then there are those who pander to the drug users____ You haven’t assisted the police and, naturally, human nature being what it is, I’m curious to know how many sales you made before you were arrested. Because you had to have been in the business to have attracted Detective Kuter to you.
One is in the business, and one stays in the business. And one’s name gets circulated, and then it eventually gets to the ears, and the eyes and ears of those who are charged with the responsibility of either restricting or stopping it, if possible.
Drugs are a blight because it leads to so many other crimes, the whole gamut, starting with theft, including the woman who was in here before you came into court. You were sitting the courtroom. It includes assaults, it includes deaths. Miami is just rampant with killings that go on as a result of Colombians, and Equadorians, and Cubans, aided fully and abetted by the Americans with the drug business.
And hardly a week goes by when I don’t pick up the paper and read where somebody is caught speeding up and down one of our super highways with twenty, thirty, forty pounds pounds of methamphetamine, marijuana, heroin, you name it, and there it is.

N.T. January 31, 1986 at 42-44. Additionally, the sentencing court made no mention of the sentencing guidelines and their relevance to this case. The record does not contain a completed guideline sentence form.

Because we find that the sentencing court abused its discretion by focusing on the nature of the crimes involved and not discussing other factors in sentencing appellant, we reverse the judgment of sentence and remand the case for resentencing.

Judgment of sentence is reversed. Case remanded for resentencing. Jurisdiction is relinquished.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully Dissent. I would affirm on the opinion of the trial Judge, The Honorable Horace A. Davenport.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    516 A.2d 1200
    COMMONWEALTH of Pennsylvania v. John FERGUSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 30, 1986.
    Filed Oct. 27, 1986.

      Barry L. Adelman, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

John Ferguson was tried nonjury and was found guilty of robbery and criminal conspiracy in connection with the armed robbery of a gasoline station in Philadelphia. Post-trial motions were denied, and sentence was imposed. On direct appeal, Ferguson contends that the evidence was insufficient to sustain the convictions for robbery and conspiracy and argues that trial counsel was ineffective. We perceive no merit in these contentions and affirm the judgment of sentence.

In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence thus viewed is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Campbell, 353 Pa.Super. 178, 179, 509 A.2d 394, 395 (1986); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984). See also: Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984).

On the evening of December 31, 1980, appellant and three other persons drove to 48th and Chestnut Streets in Philadelphia, where they parked near an Arco service station. Appellant remained in the automobile with its motor running while the others approached the service station. There, they robbed the attendant at gunpoint and locked him in the bathroom. The men thereupon returned to the car where Ferguson was waiting. Appellant drove to the home of his sister, where the four men divided the money taken from the service station.

This evidence was sufficient to support a finding that appellant had agreed to promote, facilitate and encourage the robbery of the Arco service station and that he had participated actively in committing the robbery. Indeed, it had been he who initiated the criminal activity by suggesting that “he knew where to get some money.” Ferguson drove the car, parked it a short distance from the gasoline station, and remained in the automobile with the engine running while his co-conspirators held up the station attendant. “[T]he driver of a ‘get away’ car can be found guilty ... if it is reasonable to infer that he was aware of the actual perpetrator’s intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime.” Commonwealth v. Wright, 235 Pa.Super. 601, 605-606, 344 A.2d 512, 515 (1975). See also: Commonwealth v. Perry, 334 Pa.Super. 495, 483 A.2d 561 (1984) ; Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983); Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975). Here, the evidence established without any reasonable doubt that appellant was a knowing participant in the robbery of the Arco station.

Appellant maintains that the record is “replete with inconsistencies” and that a conviction based on inconsistent testimony cannot be sustained. He argues that two of the Commonwealth’s witnesses contradicted each other. However, a review of the record discloses only different recollections of the events preceding the robbery. These inconsistencies were so minor as to have no effect on the fact finder’s ability to determine appellant’s part in the robbery. They do not render the evidence insufficient to support a finding of guilt. The mere existence of a conflict in the details of the Commonwealth’s case was not fatal. Commonwealth v. Smith, 502 Pa. 600, 607, 467 A.2d 1120, 1123 (1983); Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053 (1977); Commonwealth v. Maute, 336 Pa.Super. 394, 406, 485 A.2d 1138, 1145 (1984).

Appellant argues also that the Commonwealth witness, Kevin Davis, admitted using drugs prior to the robbery and that, therefore, his testimony should have been found unreliable. Issues of credibility are solely within the province of the trier of fact. Commonwealth v. Pettus, 492 Pa. 558, 561, 424 A.2d 1332, 1334 (1980); Commonwealth v. Brown, 336 Pa.Super. 628, 634, 486 A.2d 441, 444 (1985) ; Commonwealth v. Trignani, 334 Pa.Super. 526, 543, 483 A.2d 862, 871 (1984); Commonwealth v. Croll, 331 Pa.Super. 107, 116-117, 480 A.2d 266, 271 (1984); Commonwealth v. Sample, 321 Pa.Super. 457, 466, 468 A.2d 799, 803 (1983).

The Commonwealth produced at trial a member of the District Attorney’s staff who testified that appellant, during a prior trial involving another crime, had admitted his participation in the robbery of the Arco service station. Appellant contends that his trial counsel was constitutionally ineffective for failing to object to this testimony.

When faced with an allegation that trial counsel rendered ineffective assistance, a court must first determine whether the issue underlying the claim is of arguable merit and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the interest of his client. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). See: Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983).

Here, there is no arguable merit in appellant’s contention. His prior admission, whether judicial or extrajudicial, was admissible as an exception to the hearsay rule. Commonwealth v. Boyle, 498 Pa. 486, 499, 447 A.2d 250, 256 (1982); Commonwealth v. Glass, 486 Pa. 334, 347, 405 A.2d 1236, 1243 (1979) (plurality opinion); Commonwealth v. Cristina, 481 Pa. 44, 53, 391 A.2d 1307, 1311 (1978) (plurality opinion), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975); Commonwealth v. Darden, 311 Pa.Super. 170, 174, 457 A.2d 549, 551 (1983). The protection of the Fifth Amendment against self-incrimination was waived when appellant voluntarily gave testimony in the prior proceedings. “The fact that [appellant] ... exercised his right of silence during the second trial did not insulate him from the consequences of his earlier testimony. It has long been recognized that testimony from an earlier trial may be introduced in the prosecution’s case against a defendant regardless of whether that defendant takes the stand or not in the second proceeding.” Commonwealth v. Boyle, supra, 498 Pa. at 497, 447 A.2d at 256. See: Commonwealth v. Doughty, 139 Pa. 383, 21 A. 288 (1891); Commonwealth v. House, 6 Pa.Super. 92 (1897). When appellant took the stand in the prior proceedings without asserting his privilege against self-incrimination, he thereby waived the privilege as to the testimony given, and that testimony could be used against him in a subsequent trial. Heller v. United States, 57 F.2d 627 (7th Cir.), cert. denied, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298 (1932). Counsel was not ineffective for failing to make a meritless objection to the receipt of appellant’s prior admission of guilt as evidence in the case sub judice.

The judgment of sentence is affirmed.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I agree that the judgment of sentence should be affirmed and support the majority’s analysis on the sufficiency issue. I write separately, however, because I would find no arguable merit to Appellant’s ineffectiveness claim on the grounds that Appellant’s prior testimony in another case was admissible as a declaration against his penal interest. Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975); Commonwealth v. Ayala, 277 Pa.Super. 363, 419 A.2d 1187 (1980); Cf., F.R.Evid. 804(b)(1).

Not all declarations against penal interest are per se admissible. Such declarations must be made under circumstances that provide a considerable assurance of reliability recognizing the inherent unreliability of a confession exculpating possible accomplices at no cost to the declarant. Ayala, 277 Pa.Superior Ct. at 368, 419 A.2d at 1189.

In this case an assistant district attorney, who questioned Appellant in a separate criminal proceeding, made reference to the gas station robbery for which Appellant was charged in the instant case and Appellant admitted in the prior proceeding that he was the getaway driver.

This statement, in my view, was made by Appellant under circumstances which provided a considerable assurance of reliability since it directly implicated Appellant in the commission of a crime. The ineffectiveness claim, therefore, has no arguable merit since the contested statement was admissible under the declaration against penal interest exception to the hearsay rule.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 903.

      . Appellant argues that the trial court erred in failing to grant either a new trial or an arrest of judgment. He has failed to recognize the distinction between evidentiary weight and evidentiary insufficiency. See: Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Where the evidence is insufficient to sustain the verdict, the proper relief is to discharge the appellant, not to grant a new trial. A new trial is appropriate when the verdict is contrary to the weight of the evidence. Commonwealth v. Merrick, supra. While appellant has requested either arrest of judgment or a new trial, the record is clear that appellant is not entitled to relief of either type.


author: WIEAND, Judge:

text:
    516 A.2d 1203
    COMMONWEALTH of Pennsylvania, Appellant, v. Isabel PURNELL, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Isabel PURNELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Oct. 27, 1986.

      Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellant in No. 3262 and appellee in No. 3388.
    Gwendolyn Bright, Assistant Public Defender, Philadelphia, for appellant in No. 3388 and appellee in No. 3262.

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

The trial court denied a Commonwealth petition to extend the time for commencing trial and dismissed criminal charges of aggravated assault and related offenses on grounds that the Commonwealth had violated Pa.R.Crim.P. 1100. On the same day, the court denied a motion to dismiss which had been filed by the defendant, Isabel Purnell, alleging double jeopardy and a violation of 18 Pa.G.S. § 110. The Commonwealth appealed from the order dismissing the charges, and the defendant filed a cross-appeal from the order refusing to dismiss on the alternate grounds. We reverse the order dismissing the charges and remand for further proceedings. The order refusing to dismiss on double jeopardy grounds or on grounds that 18 Pa.C.S. § 110 had been violated will be affirmed.

On January 22, 1983, Purnell was arrested for disorderly conduct after she had shouted and disrupted the efforts of police officers who were attempting to arrest her companion, a Mr. Steplight. Purnell was taken into custody and transported to the police station where, upon arrival, she threatened a police officer and kicked him in the groin, causing serious injury. A criminal complaint was filed the same day; it charged Purnell with aggravated assault, simple assault and terroristic threats. The mechanical rúndate for Rule 1100 purposes, therefore, was July 21, 1983. A preliminary hearing was originally scheduled for February 7, 1983, but it was continued until February 15, 1983 at Purnell’s request. The preliminary hearing was held on February 15, and Purnell was bound over for court.

Trial was scheduled for May 9, 1983. On that date, the Commonwealth appeared and was prepared to proceed to trial. Purnell, who was on bail, failed to appear, and a bench warrant was issued for her arrest. On May 12, 1983, the Commonwealth filed a petition requesting an extension pursuant to Rule 1100(c). Purnell was found on July 12, 1983; and at a bench warrant hearing held the same day, the warrant was lifted and trial was rescheduled for August 8, 1983. This, the court determined, was the earliest possible date on which trial could be held. On July 19, 1983, three days prior to the original Rule 1100 rúndate, the Commonwealth amended its prior petition for an extension. A hearing on its amended petition was also scheduled for August 8, 1983.

On August 8, 1983, both parties appeared before the Honorable William J. Manfredi. The Commonwealth was then prepared to proceed with trial. However, it was unaware that a motion to dismiss on the basis of 18 Pa.C.S. § 110 had been filed by the defense. This motion, according to a stamped copy produced by Purnell at the time of hearing, had been filed in the Clerk’s Office on May 3, 1983. This motion, however, was not made a part of the Clerk’s record of this case, and the Assistant District Attorney was unaware of it until she arrived in court on August 8. Having been surprised by this additional motion, the Commonwealth requested a continuance to explore with its witnesses the circumstances relied upon by the defense to support its motion to dismiss. The trial court granted the Commonwealth’s requested continuance, and the case was rescheduled for November 3, 1983, which was certified as the earliest available date.

On November 3, 1983, the parties appeared before the Honorable John L. Braxton for hearing on pre-trial matters and also for trial. Judge Braxton denied the Commonwealth’s request for an extension and directed that the defendant be discharged. The request of the defendant for dismissal on grounds of a Section 110 violation, however, was denied.

The original rundate in this case was extended from July 21, 1983 to July 29, 1983 by virtue of the eight day delay caused by a defense requested continuance of the preliminary hearing. See: Pa.R.Crim.P. 1100(d)(2); Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982). The delay caused by Purnell’s failure to appear for trial on May 9, 1983 was also excludable. This delay, consisting of the ninety-one (91) days between May 9 and August 8, 1983, caused the rúndate to be moved back to October 28, 1983.

Under Rule 1100(d), the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such unavailability. Commonwealth v. Robinson, 498 Pa. 379, 384, 446 A.2d 895, 898 (1982) (sixteen day delay occasioned by need to put case on backup status behind two other cases at conclusion of defense continuance excludable); Commonwealth v. Millhouse, 470 Pa. 512, 518, 368 A.2d 1273, 1276 (1977). Thus a defendant, by his unavailability, may occasion a delay greater than the actual time of his unavailability. Commonwealth v. Colon, [317 Pa.Super. 412, 423, 464 A.2d 388, 394 (1983) ]; Commonwealth v. Perry, 296 Pa.Super. 359, [362,] 442 A.2d 808, 810 (1982).

Commonwealth v. Gorham, 341 Pa.Super. 499, 503-504, 491 A.2d 1368, 1370 (1985). Purnell’s trial would have commenced on May 9, 1983 had it not been for her failure to appear. That failure necessitated a rescheduling of the trial for August 8, 1983, the earliest date available after the bench warrant had been lifted. The entire period of this delay was caused by appellee’s unavailability and is, therefore, attributable to her and excludable. See: Commonwealth v. Robinson, supra; Commonwealth v. Gorham, supra; Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984); Commonwealth v. Bankston, 332 Pa.Super. 393, 481 A.2d 672 (1984); Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615 (1982); Common wealth v. Perry, supra; Commonwealth v. Chapman, 271 Pa.Super. 473, 414 A.2d 352 (1979). Thus, the Rule 1100 rundate was automatically extended to October 28, 1983.

On November 3, 1983, the trial court denied the Commonwealth’s petition for an extension of time because, it concluded, the Commonwealth had failed to exercise due diligence. The lack of due diligence, the court held, had occurred when, on August 8, 1983, the attorney for the Commonwealth declined to argue Purnell’s motion to dismiss under Section 110 of the Crimes Code without prior notice and requested a continuance. The Commonwealth contends that this was error. We agree.

The Commonwealth has the burden of proving by a preponderance of the evidence that it has met the requirements of Rule 1100(c), i.e., that despite the exercise of due diligence it was unable to bring the [defendant] to trial within the prescribed period. Commonwealth v. Akridge, 275 Pa.Super. 513, 419 A.2d 18 (1980). However, the preponderance of the evidence standard is the least burdensome standard of proof known to the law. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). In reviewing the [trial] court’s ruling that the Commonwealth has or has not met its burden of proving due diligence we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which is uncontradicted. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981).

Commonwealth v. Wroten, 305 Pa.Super. 340, 344, 451 A.2d 678, 680 (1982).

In the instant case, the record shows that the Commonwealth was ready to proceed to trial on August 8, 1983. On this date, however, the Commonwealth learned for the first time that there was an outstanding, but unserved, motion to dismiss. Through the fault of neither party, the trial court found, the Commonwealth had not received prior notice of Purnell’s motion. Under these circumstances we are unwilling to hold that the Commonwealth was required to proceed with immediate argument without opportunity to prepare. The District Attorney’s decision to request a continuance in order to prepare cannot be equated with a lack of due diligence. On the contrary, the Commonwealth’s request for a continuance in order to prepare was both reasonable and appropriate, and the petition for an extension of time should have been granted. The order dismissing under Rule 1100, therefore, must be reversed.

In a cross-appeal, Purnell contends that the trial court erred when it denied her motion to dismiss the charges on the basis of double jeopardy and/or 18 Pa.C.S. §110. We conclude that the issue is not one of double jeopardy but an issue arising under Section 110 of the Crimes Code. This issue was correctly decided by the trial court.

Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials____ “The compulsory joinder rules set forth in ... section 110 were designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.”

Commonwealth v. Webster, 323 Pa.Super. 164, 175, 470 A.2d 532, 537-538 (1983), quoting Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983) (numerous citations omitted). See: Commonwealth v. Bradfield, 352 Pa.Super. 466, 576, 508 A.2d 568, 574 (1986); Commonwealth v. Meyers, 345 Pa.Super. 520, 525-526, 498 A.2d 945, 948 (1985). In Commonwealth v. Hude, supra 500 Pa. at 491, 458 A.2d at 181, the Supreme Court stated that “in defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.” Offenses are “logically related” where they involve “ ‘a substantial duplication of factual, and/or legal issues.’ ” Id., quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. of Pitts.L.Rev. 275, 286-287 (1973).

In the instant case, Purnell was arrested for disorderly conduct after she had disrupted the efforts of Officer Zafirino to arrest Anthony Steplight. A police transport wagon was then called to the scene of the arrest, and Purnell and Steplight were both transported to the station-house. Upon arriving at the station and after being removed from the transport wagon, Purnell allegedly threatened and assaulted the wagon crew officer who had attempted to escort her into the police station. The officer assaulted by Purnell had not been present when Purnell was initially arrested but had been called to the scene after the arrest had been made for the purpose of transporting Purnell and Steplight to the stationhouse. Also, the officers who had effected Purnell’s arrest were not present at the stationhouse when the alleged assault occurred. Thus, the acts resulting in separate prosecutions had occurred at different locations, before different witnesses, and involved different victims. The factual issues are, therefore, separate and distinct, as are the legal issues. We conclude that under these circumstances the charge of disorderly conduct, to which Purnell entered a plea of guilty on February 23, 1983, was not part of the same criminal episode as the conduct resulting in charges of aggravated assault at the police station. See: Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981) (section 110 did not require single trial of charges arising from two stabbings occurring twenty minutes apart, but at different locations and involving different victims).

The order denying a motion to dismiss on the basis of 18 Pa.C.S. § 110 is affirmed. The order dismissing charges on the basis of Pa.R.Crim.P. 1100, however, is reversed, and the action is remanded for further proceedings. Jurisdiction is not retained.

      . The record is unclear as to whether these were separate orders or whether both motions were disposed of in a single order. We will, therefore, consider the defendant’s appeal as a cross-appeal, which was timely filed in accordance with Pa.R.App.P. 903(b).

      . Appellee was charged separately with the misdemeanor of disorderly conduct stemming from her disruption of the efforts of the police to arrest her companion. On February 23, 1983, appellee entered a plea of guilty to this charge and was sentenced to pay a fine.

      . The motion also is not a part of the record forwarded to this Court for review.