author: BROSKY, Judge:

text:
    551 A.2d 1112
    Abdullah Haneef IBN-SADIIKA, Appellant, v. Kim Wm. RIESTER, Esquire and Law Firm.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1988.
    Filed Dec. 20, 1988.

      Abdullah Haneef Ibn-Sadiika, appellant, in propria persona.
    Charles K. Mulzet, Pittsburgh, for appellee.
    Before BROSKY, MONTGOMERY and HOFFMAN, JJ.
   BROSKY, Judge:

This is an appeal from the Order of April 26, 1988, docketed April 28, 1988, which sustained appellees’ preliminary objections, in the nature of a demurrer, dismissing appellant’s complaint with prejudice.

Appellant now alleges that the trial court erred: (1) in sustaining appellees’ demurrer, and dismissing appellant’s complaint with prejudice; (2) in concluding that appellant failed to demonstrate in his complaint, that counsel did not exercise ordinary skill and knowledge, and that counsel’s negligence was the proximate cause of damage to appellant; (3) in concluding that appellant sought damages for reasons all related to the error of counsel in placing an incorrect docket number on appellant’s Superior Court appeal; and (4) in concluding that appellant’s complaint failed to state a cause of action against appellees.

Upon review of the record, and the briefs submitted on behalf of the parties, we fail to find merit to appellant’s contentions, and affirm the dismissal of the complaint.

Appellant was convicted of first degree murder and robbery on June 27, 1985. His court-appointed trial counsel was appellee Kim Riester, Esq., of the appellee law firm of Scott, Vogrin, and Riester. After proceeding to the penalty phase, the jury informed the trial court on June 28, 1985, that they were hopelessly deadlocked as to whether to impose the death penalty, and the court set the penalty at life imprisonment.

Untimely post-trial, and supplemental post-trial, motions, were filed, bearing an incorrect docket number. The trial court, however, heard argument upon the motions, and denied them. The official judgment of sentence was entered on February 7, 1986, and a timely appeal to this court followed.

Included in the record on appeal was a stipulation between appellee Riester and the assistant district attorney, that an incorrect docket number had been placed upon various documents, including appellant’s various post-trial motions, which had resulted in their omission from the record. A panel of this Court, however, refused to consider any of the issues raised on appeal, as the post-trial motions had not been properly filed with the clerk of courts, in violation of 42 Pa.C.S. § 2756(a)(1). The Supreme Court denied allocatur.

Thereafter, on February 2, 1988, appellant filed a pro se complaint against appellees, alleging malpractice, breach of contract, and negligence. Appellees responded by filing preliminary objections, including a demurrer, to each of these three counts. The demurrer was granted, and appellant’s complaint was dismissed with prejudice on April 26, 1988. This timely appeal followed.

The appellate court’s scope of review upon an appeal from the sustaining of preliminary objections in the nature of a demurrer, is well established. The question presented is, whether, upon the facts averred in the complaint, taking all material facts and reasonable inferences deducible from those factors as true, the law says with certainty that no recovery is possible, ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 138, 504 A.2d 281, 283 (1986), citing Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983). A demurrer should be sustained and the complaint dismissed only in cases that are clear and free from doubt, ei bon ee baya ghananee, supra; Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803, 804 (1983). Any doubt should be resolved in favor of overruling the demurrer. ei bon ee baya ghananee, supra; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36, 38 (1982).

We note at the outset that, as in his complaint, appellant’s brief contains no argumentation whatsoever in support of any theory of recovery against appellee law firm based on the actions of appellee Riester. When an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived. Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1341 (1987); Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 126 n. 2, 459 A.2d 765, 771 n. 2 (1983). As such, no cause of action remains as to appellee law firm.

We also note that appellant has not raised any specific challenge to the dismissal of his breach of contract count, and has waived that challenge as well. Pa.R.A.P. 2116(a); Rago v. Nace, 313 Pa.Super. 575, 578, 460 A.2d 337, 339 (1983); Pelagatti, supra; Giant Markets, supra.

What remains, then, is appellant’s argumentation pertaining to the dismissal of his malpractice and negligence claims.

A suit for legal malpractice is, in reality, a suit for professional negligence. See Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10, 13 (1986). As such, for purposes of our discussion infra, we shall treat appellant’s malpractice and negligence counts as one count, and determine whether, when taken together with the more general counts of appellant’s complaint, appellant’s contentions on appeal to the effect that his complaint was sufficient, contain any merit. To this end, we shall be treating contentions (1), (2), and (4) as one challenge to the trial court’s dismissal of a sufficient complaint, and shall discuss contention (3) within that context.

The three elements of a cause of action for professional negligence (or legal malpractice) are: (1) the employment of the attorney or other basis for his duty to act as an attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. Trice, supra; Duke & Co. v. Anderson, 275 Pa.Super. 65, 71, 418 A.2d 613, 616 (1980); Schenkel v. Monheit, 266 Pa.Super. 396, 405 A.2d 493, 494 (1979). Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation. Brock v. Owens, 367 Pa.Super. 324, 328-329, 532 A.2d 1168, 1170 (1987); Trice, supra; Duke, supra.

Appellant’s contentions (1), (2) and (4), are essentially alleging that the trial court mistakenly held that the complaint did not contain any facts to support elements (2) and (3). Contention (3) is, in that context, a challenge to the trial court’s finding that appellant’s sole allegation in support of element (2), was the incorrect docketing, which, according to the trial court, had no bearing upon the dismissal of appellant’s appeal of his conviction.

We begin, then, with a discussion of element (2), the failure of appellee counsel to exercise ordinary skill and knowledge, as it relates to contention (3).

Upon doing so, we find that appellant is correct in his assertion that the trial court misperceived the import of the docket number question. Clearly, the stipulation by counsel did not alter the Superior Court result; our Court did dismiss the appeal for failure to file post-trial motions properly with the clerk of courts.

Furthermore, appellant is also correct in his assertion that his complaint enumerated other acts in support of element (2), such as the failure of appellee counsel to subpoena helpful witnesses and make various objections at trial to damaging Commonwealth evidence.

As such, we do, for the limited purpose of determining whether element (2) was sufficiently pled, find merit to contention (3>, and hold that appellant set forth sufficient facts in support of element (2).

It is only the presence or absence of element (3), pertaining to damages and proximate cause, which remains for our determination.

When it is alleged that an attorney has committed professional negligence and caused damage to his client as a result, nominal damages, speculative harm, or the threat of future harm, do not provide the basis for a cause of action: there must be proof of actual loss. Trice, supra; Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56, 57 (1984). The test for determining whether damages are remote or speculative does not concern whether the amount can yet be calculated, but deals with the more basic question of whether there are identifiable damages; it is the fact of damages, rather than the amount that is the key inquiry. Cohen v. Pelagatti, 364 Pa.Super. 573, 528 A.2d 657, 658 (1987); Mariscotti, supra.

Appellant argues that he did, indeed, plead identifiable damages, in the form of false imprisonment and intentional infliction of emotional distress, as proximately caused by appellee counsel's negligence.

That incarceration constitutes actual, identifiable damage, has been established in a series of cases pertaining to professional negligence. See Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 524 A.2d 980, 983 (1987); Moore v. McComsey, supra. Hence, we find no difficulty in concluding that the complaint avers an actual loss in averring false imprisonment.

Similarly, it has been held that the tortious infliction of emotional distress may also constitute actual harm in a professional negligence suit. See ei bon ee baya ghananee, supra, 350 Pa.Superior Ct. at 138-141, 504 A.2d at pp. 283-84.

It is with respect to the matter of proximate causation, however, that we find fault with the complaint.

Proximate cause has previously been defined by our Court in the following manner:

... The question of foreseeability is not to be confused with the question of legal or proximate causation. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194, 1197 (1984). Even where harm to a particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and that conduct is the eause-infact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a “proximate” or “legal” consequence naturally flowing from the wrongdoer’s misconduct. See Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672, 676 (1986); see also Palsgraf[v. Long Island R. Co.], supra [248 N.Y. 339], 162 N.E. [99] at p. 103 [ (1928) ]. To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiff’s harm.

Alumni Ass’n v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095, 1098 (1987).

Hence, to support a showing of “proximate causation”, appellant would have had to allege how appellee’s negligence was a substantial factor in bringing about his incarceration and emotional distress, or, more simply put, how, had appellant’s appellate rights been properly preserved, he would have been successful at the post-trial and/or appellate stage. Brock, supra; Trice, supra.

Appellant’s complaint contains no averments whatsoever as to how, or upon what ground, he would have been successful in securing a new trial, or arrest of judgment, and, presumedly, his freedom from prison, and from the emotional distress accompanying incarceration.

As such, we now find that element (3), damages proximately caused by the alleged professional negligence, was not sufficiently pled, and, at the very least, the trial court acted correctly in sustaining the demurrer.

Appellant, however, has also argued that any defects in his complaint are capable of being remedied. Therefore, he states, the trial court should not have dismissed his complaint with prejudice, but should have granted him leave to amend.

The right to amend should be liberally granted, absent an error of law or resulting prejudice to an adverse party. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600, 602 (1983); Pa.R.C.P. 1033. However, the right to amend is not absolute. Where the initial pleading reveals that the complaint’s defects are so substantial that amendment is not likely to cure them, and that the prima facie elements of the claims asserted will not be established, the right to amend is properly withheld. See Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833, 837 (1983); also see Behrend v. Yellow Cab Company, 441 Pa. 105, 271 A.2d 241, 243 (1970). Furthermore, the decision to grant or deny leave to amend is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion. Junk v. East End Fire Dep’t, 262 Pa.Super. 473, 396 A.2d 1269, 1277 (1978).

Our review of the complaint convinces us that the trial court did not abuse its discretion in denying leave to amend. Appellant’s allegations concerning witnesses that should have been called, and evidence that should have been objected to, are appallingly vague and conclusory. Even in our liberalized system of fact pleading, greater specificity is required. Feingold v. Hill, 360 Pa.Super. 539, 521 A.2d 33, 38 (1987); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498, 505 (1974); Pa.R.C.P. 1019(a). Moreover, appellant’s brief does not contain any additional factual averments, demonstrating how appellee counsel’s above omissions affected the outcome of appellant’s trial, or would have provided a basis for post-trial relief. As such, we are given no reason to believe that amendment would cure the defects in this complaint. See, Feingold, supra, 360 Pa.Superior Ct. at 551, 521 A.2d at p. 39.

In light of the foregoing, we now find that the trial court’s dismissal of appellant’s complaint with prejudice, was not an abuse of discretion.

ORDER AFFIRMED. JURISDICTION RELINQUISHED.

      . Appellant’s brief, as well as his reply brief, have been submitted pro se.

        . Moreover, such a challenge would have been without merit. It has already been established that a contract of employment does not exist between a defendant and court-appointed counsel, and that a legal malpractice action against court-appointed counsel will lie only in trespass. Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841, 843 (1983).

      . While, as appellees’ brief highlights, appellant should have pled all allegations pertaining to professional negligence, including special damages related thereto, in one count, in keeping with Pa.R.C.P. 1020, we elect to take a more liberal approach to appellant’s inartful pleading, in light of its pro se nature. See ei bon ee baya ghananee, supra, 350 Pa.Superior Ct. at 140, 504 A.2d at p. 284.

      . It is not in dispute that element (1) was set forth by the allegations of appellant’s complaint. An attorney’s status as court-appointed provides the "basis for duty” for purposes of element (1). Reese v. Danforth, 486 Pa. 479, 484-485, 406 A.2d 735, 737 (1979).

      . While out Court also could have dismissed the motions based on untimeliness alone, the docketing error was the fatal blow to appellant’s appeal upon which our Court relied.

      . In the ei bon ee baya ghananee case, appellant, in his pro se complaint, alleged that his attorney had negligently failed to protect his appellate rights, thereby causing him injury in the form of “great pain and mental anguish”. Our Court held that such averments of mental distress, alone, were sufficient to preclude the sustaining of a demurrer.
      We are wary of the position taken in ei bon ee baya ghananee, as the portions of the complaint quoted in the opinion do not demonstrate that appellant averred facts setting forth why he would have prevailed in the underlying litigation if his counsel had not been negligent. See Brock, supra; Trice, supra; Duke, supra. However, at the very least, ei bon ee baya ghananee is distinguishable in that appellant therein did allege bodily harm as flowing from the emotional distress; at a minimum, there must be pled some injury to the person that may later be verifiable by expert medical testimony. See Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 995 (1987). Appellant here pled no identifiable physical injury to his nerves or otherwise capable of expert confirmation.


source: Caselaw Access Project

author: BROSKY, Judge: JOHNSON, Judge,

license: Public Domain

text:
    552 A.2d 254
    Della C. LASTOOKA and Francis R. Scholl and Anthony P. Picadio, Co-Executors of the Estate of John M. Lastooka, Deceased, Appellants, v. AETNA INSURANCE COMPANY. Della C. LASTOOKA and Francis R. Scholl and Anthony P. Picadio, Co-Executors of the Estate of John M. Lastooka, Deceased, v. AETNA INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 30, 1988.
    Filed Nov. 15, 1988.
    Reargument Denied Jan. 9, 1989.

      Anthony P. Picadio, Pittsburgh, for Lastooka, et al.
    John Edward Wall, Pittsburgh, for Aetna Ins. Co.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   BROSKY, Judge:

This is a consolidated appeal from a summary judgment granted in part in a declaratory judgment action instituted by appellants, Lastooka, Scholl and Picadio, co-executors of the estate of John Lastooka, after the deceased was killed in an automobile accident. These appellants sought a declaration of insurance coverage rights based upon a business auto policy in existence at the time of the fatal accident.

Two issues have been raised for resolution on appeal: (1) was the decedent covered under the uninsured motorist provisions of the policy even though he was not occupying a covered auto at the time of the accident? and (2) was decedent entitled to stack insurance coverage? The trial court found that uninsured motorist coverage applied to the accident but that stacking of coverage was not permissible. Appellee, Aetna Insurance Company, in a cross-appeal, appeals the finding that coverage applied in the first instance. We will refer to Aetna as appellee throughout this opinion. We affirm in part and vacate in part.

The following facts are of relevance to our decision: On February 5, 1985, John Lastooka was fatally injured in a motor vehicle accident while riding as a passenger in a car driven by Sharon Kentros, who was uninsured. At the time of the accident the deceased was the owner of Ram Construction Company, a sole proprietorship. All of Ram Construction’s business vehicles, as well as the family’s personal automobiles, were titled under the name of Ram Construction and insured under a business auto policy issued by Aetna. The total number of vehicles insured at the time of the accident was 28, five of which were the personal vehicles of the family members. All insurance premiums were paid by the deceased personally through a company account. Effective February 25, 1984, the endorsement to the policy had been amended to include John Lastooka and Della Lastooka as named insureds. The named insureds had already included John M. Lastooka d/b/a Ram Construction Company, Ram Construction Company and Ram Management Corporation.

We agree with the trial court’s conclusion that uninsured motorist coverage existed despite the fact that appellants’ decedent was not occupying a “covered auto” at the time of the accident. This Court previously found coverage to apply under similar facts in the case of Estate of Rosato v. Harleysville Mut. Ins., 328 Pa.Super. 278, 476 A.2d 1328 (1984). There we stated “[t]he fact that the decedent was not occupying a vehicle covered under appellant’s policy at the time of the accident is not determinative.” Id., 328 Pa.Superior Ct. at 289, 476 A.2d at 1334. Appellee argues, however, that Rosato did not consider the effect that a schedule of coverages section in the policy had upon the determination that coverage existed.

Under the policy found in this case, there is a “schedule of coverages and covered autos” which designated that uninsured motorist coverage had been purchased, but more important to appellee’s argument was the fact that the “covered autos” box was coded as covering “owned autos only”. Appellee argues that this designation requires a finding that uninsured motorist coverage applied to the deceased only while in an owned auto. We disagree.

The page of the policy on uninsured motorist coverage contains a section entitled “who is insured” and states “1. You or any family member. 2. Anyone else occupying a covered auto ...” The policy does not read “you or any family member while occupying a covered auto” which is how appellee, in essence, asks us to interpret the provision. Contrast this with the provisions in the policy on liability coverage which, under the “who is insured” section, states that “you are an insured for any covered auto.” If the uninsured motorist section is read as urged by appellee, the first classification, known as a class one insured, would be superfluous. Coverage would simply apply to any person occupying the vehicle whether or not they be a named insured or otherwise. However, under developed case law the class one status is crucial to determining the right to stack coverages, and cannot be simply disregarded. See Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). Furthermore, it is difficult to project how this coverage could be purchased under appellee’s urged reading. There is a code for “any auto” which could, supposedly, have been designated in the uninsured motorist block. However, this event would literally have qualified the second enumerated class of covered individuals, listed above, to read “anyone else occupying any auto”. Of course, this renders appellee’s urged reading somewhat absurd.

We find the stacking issue to be a bit more complicated; nevertheless, we must applaud the detailed history and analysis of the cases on the stacking issue contained in appellants’ brief. Clearly, not all the questions in this area have been resolved to a satisfactory degree, and some can be easily interpreted to conflict with one another to a certain degree. However, the statements of this Court suggest an adoption of the position that stacking of coverage is not allowable as to coverages on corporate fleet vehicles, even for class one insureds. See Miller v. Royal Insurance Company, 354 Pa.Super. 20, 510 A.2d 1257 (1986) (for an express holding to this effect), Boris v. Liberty Mutual Insurance Co., 356 Pa.Super. 532, 515 A.2d 21 (1986) and Thompson v. Royal Insurance Co., 361 Pa.Super. 78, 521 A.2d 936 (1986).

As noted by appellant, the above cases can be distinguished factually. For instance, it appears that the cases declining stacking of coverage involve claimants who were claiming coverage only on the basis of occupying the insured vehicle, and thus were not truly class one insureds. In contrast, the insured in this case not only was a named insured but also paid the premiums. However, the broader proposition, that uninsured motorist coverage cannot be stacked under a corporate fleet policy, is adopted throughout these cases and clearly runs contrary to appellants’ position. We feel constrained to follow the principle established in this line of cases even though a strong argument can be made to support appellants’ position.

We do not believe, however, that our determination that stacking is not available as to coverage of vehicles in the corporate fleet ends the inquiry on stacking. Coverage was also provided, in the present case, for five vehicles which, although titled in the name of Ram Construction, were stipulated by the parties to be vehicles used by the family members for personal purposes. Despite the fact that all of the vehicles, 28 in all, were under the same policy, apparently the vehicles covered were of two separate classes, personal use and business use. This is not an uncommon scenario in small businesses and corporations which are owned by a small number of people. We think that Miller controls with regard to stacking coverage of the Ram Construction fleet; however, the reasoning of Miller does not compel the same result as to coverage on the personal vehicles of the family members.

The commonly cited reason for disallowing stacking of coverage on a corporate fleet is that it would unreasonably extend the potential liability of the insurer by covering a potentially large number of vehicles and drivers and would thus be beyond the reasonable expectations of the insurer and the policyholder. See Miller, 354 Pa.Super. at 23, 510 A.2d at 1259. The same cannot be said in the context of coverage of personal use vehicles where the class one insureds are finite and readily discernible in number as are the number of vehicles covered. Furthermore, the right to stack such coverage is well settled in the common personal use vehicle situation. See Rosato and Contrisciane, supra. Consequently, it can be expected or at least foreseen that such coverage will apply to those vehicles.

The policy in question here covered 28 vehicles in total, 23 of which were used in the business and five others which were the personal vehicles of the deceased, his wife and three daughters. Appellants’ decedent paid the premiums for the coverage of all of the vehicles, both business and personal, albeit from a Ram Construction account. Consequently, the policy could be thought of as being a combined business/personal auto policy. Appellee insurance company was aware, or should have been aware when the named insureds of the policy were amended to include John and Della Lastooka, that the policy had or was taking on a personal nature in addition to whatever purely business nature it may have previously had. There would appear to be no dispute that had the appellee insured the five personal use vehicles on a separate personal policy appellants would be entitled to stack coverages on those autos. See, Rosato, supra. We believe the same result must be reached here where both personal and business use vehicles are insured under the same policy. We cannot read Miller to indicate that the title of the policy will control the stacking issue but rather see the nature of the policy and that which it insures to be the controlling factor. Here, although the policy was called a “business auto policy” and covered a fleet of business vehicles, it also provided coverage for a distinctly different class of vehicles as well, that being the family’s personal vehicles. Consequently, we would conclude that Miller and its progeny require disallowance of stacking of coverage of the corporate fleet vehicles but not coverage on personal use vehicles where both are covered under one policy.

For this reason, we vacate that part of the judgment regarding stacking to the extent it disallows stacking of coverage on the personal use autos and remand for entry of an appropriate order. The judgment is affirmed as to its determination that coverage applies.

Judgment affirmed in part, vacated in part and remanded.

JOHNSON, J., files dissenting opinion.

JOHNSON, Judge,

dissenting:

I join so much of the majority opinion as would affirm the trial court’s finding that plaintiff’s decedent is entitled to recover under the uninsured motorist insurance endorsement of the policy although he was not occupying an owned auto at the time of the accident. Estate of Rosata v. Harleysville Mutual Insurance Company, 328 Pa.Super. 278, 476 A.2d 1328 (1984).

I dissent from that portion of the majority decision that would vacate that part of the trial court order which denies the stacking of coverages. The majority seeks to distinguish Miller v. Royal Insurance Company, 354 Pa.Super. 20, 510 A.2d 1257 (1986) on the basis that “the cases declining stacking of coverage involve claimants who were claiming coverages only on the basis of occupying the insured vehicle, and thus were not truly class one insureds.” Majority opinion, at page 412.

The Miller court expressly stated that the trial court in the case before it had determined that Miller was a class one insured. The court further indicated that the issue before it was “whether a ‘class one’ insured may stack coverages under a fleet policy,” 354 Pa.Super at 23, 510 A.2d at 1258, a question that had not been reached in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984).

The fact that the parties in the appeal before us may have stipulated that five vehicles were used by family members for personal purposes would not be sufficient to permit stacking in my view, in the face of the clear holding in Miller that coverages under a fleet policy may not be stacked. Id., 354 Pa.Superior Ct. at 23, 510 A.2d at 1258.

The majority seeks to distinguish Miller by referring to the unreasonable extension of potential liability arising from a potentially large number of vehicles and drivers under a commercial fleet policy. Yet it is exactly this distinction which was expressly rejected by our court in Miller.

I find the opinion of the distinguished trial judge, the Honorable Marion Finkelhor, to be completely dispositive of the only two issues on this appeal. Her reliance on Estate of Rosata and on Miller, as well as on Boris v. Liberty Mutual Insurance Co., 356 Pa.Super. 532, 515 A.2d 21 (1986) is well founded. I would affirm the order granting summary judgment on the stacking issue.

Hence, this dissent.

      . Contrary to the assertions of our dissenting colleague, we do not attempt to distinguish Miller on the basis that “the cases declining stacking of coverage involve claimants who were claiming coverage only on the basis of occupying the insured vehicle, and thus were not truly class one insureds.” Dissenting opinion at p. 415. Indeed, we accepted the rather broad statement made in Miller regarding stacking of coverage under corporate fleet policies, majority opinion p. 412, while candidly acknowledging, and perhaps despite, appellants’ convincing demonstration of the above point.
      Appellants appear to be correct in their assertion. Boris states unequivocally that the claimant was not a class one insured, Thompson indicates that the claimant was not a named insured and Miller is actually inconclusive on the matter. Although the Miller opinion, in conclusory fashion, states that the claimant was a class one insured, it is not apparent, from the facts given in the opinion, how the panel made this determination. It does not appear that the claimant in Miller was a named insured, or a family member of a named insured. (The standard qualifications for class one status.)
      However, the claimant was the wife of a corporate officer thus leaving open to speculation the possibility that the panel found the claimant a class one insured based upon part of the unanswered question posed in Contrisciane, that being, whether the officers of a corporation are class one insureds under a policy issued in the name of the corporation. See, Contrisciane, 504 Pa. at 338-339, 473 A.2d at 1010. Regardless of the panel’s reasoning for finding the claimant a class one insured in Miller, there is absolutely no indication that the claimant there was a named insured who paid the premiums. This is the point made by the appellants and is indeed relevant under the case law. For instance, in Contrisciane our Supreme Court stated that one of the reasons for allowing the stacking of coverage is "that the intended beneficiary of an uninsured motorist policy is entitled to multiple coverages when multiple premiums have been paid.” 504 Pa. at 338, 473 A.2d at 1010. The Court went on to state (with regard to class two insureds):
      A claimant whose coverage is solely a result of membership in this class has not paid premiums, nor is he a specifically intended beneficiary of the policy. Thus, he has no recognizable contractual relationship with the insurer, and there is no basis upon which he can reasonably expect multiple coverage.
      Id., 504 Pa. at 338-339, 473 A.2d at 1010-1011. Appellants’ assertion is that the cases declining stacking involved claimants who were not specifically intended beneficiaries, nor did those claimants pay the premiums.
      The present claimant was an intended beneficiary and, at least-arguably, can be said to have paid the premiums. We acknowledge the distinction between the present case and those cited above. However, we feel compelled to follow Miller because the principle is stated so broadly and unequivocally. Yet, we find the present case to be different in another material respect, that being that the policy covers both corporate fleet vehicles and personal use vehicles. Hence, the result reached below, we believe, is in keeping with the principles established in Miller as well as in Contrisciane.

      . The stipulation, at paragraph 5 states merely that: “Five of these autos were personal for Mr. Lastooka, his wife and their three daughters."


author: PER CURIAM: CIRILLO, President Judge, POPOVICH, Judge,

text:
    552 A.2d 258
    John CERESINI and Julia Ceresini, Appellees, v. VALLEY VIEW TRAILER PARK, Ephrata, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed Dec. 21, 1988.

      Christopher S. Underhill, Lancaster, for appellants.
    Eric J. Swan, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.
   PER CURIAM:

This appeal is from a judgment which assessed delay damages against appellant Valley View Trailer Park. In assessing damages, the trial court sought to comply with the requirements of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1850 (1986), and the present appeal focused on the proper interpretation of that case as it modified the provisions of Pa.R.C.P. 288. On November 7, 1988, while this matter was still pending in this court, our Supreme Court rescinded Rule 238 governing Damages for Delay in an Action for Bodily Injury, Death or Property Damage and on the same date promulgated a new Rule 238, effective immediately. The new Rule 288 applies to “actions pending on or after the effective date of this rule in which damages for delay have not been determined”.

In determining whether the new Rule 238 applies to the matter pending before us, we are guided by Pa.R.C.P. 52 which states:

Rule 52. Effective Date.
Application to Pending Actions
(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.
(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. (Emphasis added).

See also, Sherry v. Trexler Haines Gas, Inc., 373 Pa.Super. 330, 541 A.2d 341 (1988).

The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule. A reading of Craig v. Magee Memorial Rehabilitation Center, supra, reveals the intent of the Supreme Court that its decision (involving Rule 238) should apply to cases “pending in the courts of this Commonwealth” where the issue of the delay damage aspect of the damage award has been preserved. Since we must assume that the new Rule 238 is simply the embodiment of the changes contemplated by our Supreme Court in Craig we see no reason why the scope of its effectiveness should be different from that enunciated in Craig. See also, Pivirotto v. City of Pittsburgh, 515 Pa. 246, 528 A.2d 125 (1987). Not to apply new Rule 238 to cases pending in the appellate courts where the propriety of delay damages entered by the court below is at issue would require a strained reading of new Rule 238 which states that it applies to “actions pending on or after the effective date of this Rule in which damages for delay have not been determined.” (Emphasis added). Unless delay damages have not been initially determined by the court below, there would be no basis on which the matter could be before us for review. The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case.

Moreover, whether or not we apply the new Rule 238 to cases on appeal, the result is the same for if we were to ask if the lower court properly complied with the requirements of Craig, logically we would be compelled to find that the new Rule 238 is a specific promulgation of the Supreme Court’s intention as set forth in the Craig opinion.

The dissenting opinion by President Judge Cirillo also determined that the trial court has imposed delay damages precisely in accordance with new Rule 238, even though it did not have the benefit of the Rule when it made its award. We disagree with the conclusion. New Rule 238 is quite complex and differs from the prior rule in a number of respects including the monetary formula for the calculation of damages. We believe the court must consider the entire rule in order to correctly ascertain delay damages and the court below must consider it in assessing damages. Since the delay damages assessed in this case have not been finally determined, we remand to the trial court for assessment of delay damages in accordance with Pa.R.C.P. 238, effective November 7, 1988.

JUDGMENT REVERSED.

JURISDICTION IS NOT RETAINED.

CIRILLO, President Judge, and POPOVICH, J., files dissenting opinions.

McEWEN, J., did not participate in the consideration or disposition of this appeal.

CIRILLO, President Judge,

dissenting:

I must respectfully dissent.

The amendments to Rule 238, upon which the majority relies in remanding this case for a redetermination of delay damages, were promulgated by the supreme court in the wake of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), which held invalid on due process and equal protection grounds the mandatory provisions of former rule 238. These amendments, by their terms, are applicable only in cases “in which damages for delay have not been determined.” Pa.R.C.P. 238(f). In this case, delay damages were determined — by the trial court. I believe the majority ignores the plain meaning of this section in remanding this case for treatment under the new rule on the basis that such damages have not been “finally determined.” Had this result been intended, the language of the rule would have made it clear. Compare Craig, 512 Pa. at 65-66, 515 A.2d at 1353 (delineating prospective effect of that decision).

This is not to say, however, that the promulgation of the new rule has no effect upon our disposition of this appeal. In adopting new rule 238 as a cure for the constitutional infirmities addressed in Craig, the supreme court has given us guidance in interpretation of that decision which we may not ignore. Clearly, the supreme court is of the opinion that due process and equal protection are satisfied by a prejudgment interest rule which, although fault-based, assesses a penalty upon defendants based only upon a determination as to whether plaintiffs have been at fault in delaying resolution of a dispute. For us to interpret Craig as appellants would have us do, that is, to require the trial court to make a determination as to the extent of defendant’s fault in causing delay and to assess delay damages only for that delay, would fly in the face of the explication of Craig that is implicit in a new rule 238. Because the trial court here made its finding of fault precisely as the new rule and, by implication, Craig would require, and because appellant has challenged only the fault-finding process employed by that court, I would conclude that the judgment entered in the trial court must be affirmed.

I do not reach this conclusion with complete equanimity, however, and I feel constrained to point out what I see as serious constitutional problems with the new rule, and with interpreting Craig as the supreme court has intimated we must. It seems to me that the supreme court is authorizing the punishment of defendants qua defendants. Although that court evinced concern in Craig over the fault of defendants in assessing delay damages against them, merely subtracting plaintiffs time from the overall delay has the result of charging defendants with delay which was the fault of neither party. In doing so, it makes defendants culpable for the simple reason that they have chosen to defend their case. Clearly, this court is constrained to follow Craig as the supreme court intended it, and, here, no constitutional challenges to the old rule were raised. It is my belief, however, that the problem merely lies dormant.

I therefore conclude, albeit with reservations, that the judgment of the trial court should be affirmed.

POPOVICH, Judge,

dissenting:

I cannot join the Majority in what I perceive to be an unnecessary remand to afford the trial court the opportunity to calculate delay damages under the new Pa.B.Giv.P. 238, which became effective November 7, 1988.

In the “Explanatory Comment” following the new Rule 238, the purpose of subdivision (f), which provides that the revised Rule applies to all pending actions in which the issue of damages for delay has been determined, is explained; to-wit:

The purpose of this [subdivision (f) ] is to indicate that the rule applies to pending as well as future actions but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig [v. McGee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986),] case. Once damages for delay have been determined under Craig, those proceedings are final and are not to be reopened under this rule.

(Emphasis added)

The Majority offers that a remand is necessary “[sjince the delay damages assessed in this case are ... not in precise accordance with the new Rule 238____” To the contrary, however, the Comment to new Rule 238 directs that its provisions are not to be applied “to pending actions in which damages for delay have been determined under the provisions and procedures of the Craig case.” No mention is made that compliance has to be with the provisions of new Rule 238 to avoid a “pending” case from being “reopened” and scrutinized under the new Rule’s requirements.

Prior to the promulgation of the November 7, 1988 Rule 238, this en banc Court had “determined” the delay damages question in the case at bar, and we did so “under the provisions and procedures of the Craig case”, as did the trial court. Therefore, because the delay damages issue had been resolved, consistent with the Comment to Rule 238, this case should not be subject to being reopened in the name of new Rule 238.

If the Pennsylvania Supreme Court, speaking through the Civil Procedural Rules Committee via the Comment to Rule 238, intended all delay damages cases to comply with the dictates of new Rule 238, it could have done so easily by directing that all pending actions involving delay damages be controlled by the new Rule 238. It chose not to do so, and this leads this writer to conclude that the Supreme Court did so to exclude from the ambit of new Rule 238 those cases, albeit pending, wherein the damages for delay have been assessed under the Craig ruling. Such cases (“proceeding”) are final and are not susceptible to being reopened under the guise of new Rule 238.

Accordingly, for the reasons stated herein, I respectfully dissent to the Majority’s remand of this case, a procedure which will unnecessarily protract the resolution of an issue which has consumed, already, too much of the judiciary’s time and energy.


author: WIEAND, Judge:

text:
    552 A.2d 261
    In re Janet Lynn MILLER. Appeal of Lorraine MILLER & Charles Miller.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1988.
    Filed Dec. 29, 1988.

      Sheila J. Fisher, Lancaster, for appellants.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The appeal now being considered by this Court was taken from an order which continued custody of a dependent child in the Lehigh County Office of Children and Youth Services (CYS), reduced the number of authorized visits by the biological parents, and allowed the termination of support services for the parents. The parents contend that the trial court failed to make adequate findings, as required by 42 Pa.C.S. § 6351(f), and that the court’s order was not in the best interests of the child. We find no merit in the parents’ arguments and affirm the order of the trial court.

Janet Lynn Miller was born June 5, 1986 to Charles and Lorraine Miller. She was the Millers’ third child. The first child had been taken from the Millers and placed in foster care by CYS in 1972 because of the mother’s intellectual limitations, her lack of parenting skills, and also because of suspected child abuse. The second child born to the Millers had been taken from the hospital upon birth and placed directly in foster care. Therefore, CYS was familiar with Lorraine Miller’s intellectual limitations and her inability to parent even before Janet Lynn was born. Upon Janet Lynn’s birth, support services were immediately instituted to help the mother with basic parenting skills. Visiting nurses went to the home three times a week to assist in bathing and feeding the child. A representative of Home Start Services spent an hour a week with the mother to assist her in basic child care; and the Wiley House Parents Sponsorship Program also sent a woman who visited the home two or three times a week. Finally, a caseworker from CYS remained in touch with the parents and visited once a week.

Janet Lynn Miller was adjudicated dependent on February 20, 1987, when she was eight months old. Under the court’s order, physical custody was to remain with the child’s parents, conditioned upon their properly feeding, bathing, and caring for their infant daughter. Although full support services continued, the mother nevertheless experienced serious difficulty in providing basic child care. The infant was not being bathed properly, was being fed irregularly, and was being given foods which were either inappropriate or spoiled.

On April 20, 1987, the child was removed from her parents’ home on an emergency basis because she was not being fed properly. Thereafter, the services of Wiley House and the Visiting Nurses were discontinued, but the Home Start worker continued to visit the home to assist the child’s mother in learning basic child care skills. On May 4, 1987, an agreed order was entered which continued the child’s dependency status and her placement in foster care. Visitation for the parents was arranged as follows: one hour per week to be spent at the Easter Seal Society’s Infant Stimulation Program to assist the parents and child to deal with the child’s developmental delay; one hour per week at CYS with the active participation of a Home Start Worker; and one hour per week at CYS to be observed by agency caseworkers. The order also provided that the mother was to participate in a specialized counseling program sponsored by the Mental Health/Mental Retardation Center in order to learn basic skills such as personal hygiene, cooking and washing clothes.

On July 2, 1987, another agreed order was entered which continued the child’s dependency status and her placement in foster care. The parties also agreed to enlarge the visitation between parents and child at CYS. This was intended to permit greater opportunity to evaluate the progress, if any, which the parents were making in learning child care skills.

On October 30,1987, a review hearing was held. At that hearing, testimony was received from Dr. Gerald A. Zimmerman, a psychologist affiliated with the Wiley House Child and Family Guidance Center. He said that the father had a dependent personality and the mother, who is mildly retarded, had deficiencies in her ability to think and to parent children. In his opinion, to teach the mother care-taking skills and the development of appropriate expectations for the child would require supervision for as much as sixteen hours a day. Another expert, Edward R. Dubin, a licensed psychologist, testified that although the parents had made some progress in learning basic parenting skills, their progress was too slow to enable them to keep pace with the changing needs of the maturing child. He opined that the parents would never learn sufficient parenting skills to allow them to regain custody of their child. He recommended that services intended to aid in the achievement of that goal be terminated and that visitation be reduced.

A social worker who had observed the visitations testified that the mother had been “extremely rough” with the child. The witness voiced a fear that the mother would unintentionally hurt the child. She reported that the parents had failed to respond in a meaningful way when the child placed inappropriate objects in her mouth. She also testified that on one occasion a caseworker had found it necessary to intervene because the child had been choking, and on another occasion she herself had had to intervene because the child was frightened and screaming. Finally, she expressed alarm because of the parents’ apparent lack of concern regarding the sanitary condition of food which they gave to the child.

The court also received testimony from Frances Sonne, Esquile, who was the court appointed guardian ad litem for the child. She confirmed that the mother had given the child food which had fallen on the floor and that she used unnecessary force in handling the child. She recommended that custody remain in CYS and that the parents’ visits with the child be reduced.

The trial court found that the child continued to be dependent and directed that her custody remain in CYS. The court also ordered that Home Start support services be terminated and that the parents’ visits be reduced to one hour every other week. The parents appealed this order but withdrew the appeal after the court set an additional hearing at which the parents were to be permitted to present evidence to refute evidence of their lack of parenting skills.

The additional hearing was held on January 6, 1988, at which time the parents offered testimony from the mother’s occupational therapist, a developmental psychologist who had observed the parents while another child had been present in their home, and the father’s cousin who had observed the parents and child in the cousin’s home. In rebuttal, testimony was received from Edward Dubin and a CYS caseworker, both of whom had observed a visitation between the parents and their child on the preceding day. Dubin said he observed the mother give the child a bottle which had been in a trash can with a dirty diaper, rock the child while holding a cup of hot coffee, and allow the child to walk while holding a fork. He said the mother used nonsense speech and did not engage in meaningful talk capable of aiding the child’s language development. Although jonceding that the mother appeared to love her child, he said that she was basically insensitive to the child’s needs. The social worker related the stressful situations which appeared to develop between parents and child and said that she had had to intervene when the mother attempted to give the child food to which, as the mother had been told repeatedly, the child was allergic.

The trial court found the witnesses produced by CYS to be more credible than those called by the parents. On January 12, 1988, the court entered an order which, consistently with its earlier order, terminated the services of Home Start and reduced the parents’ visits to one hour every other week. It was from this order that the parents appealed.

Under the Juvenile Act, a child may be adjudicated dependent when it is established by clear and convincing evidence that he or she is without proper parental care and such care is not immediately available. See: Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 494, 519 A.2d 456, 459 (1986); Matter of Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983). Even a child who has been adjudicated dependent, however, may only be removed from his or her parents in cases where there is a clear necessity for such removal. In the Interest of Ryan Michael C., 294 Pa.Super. 417, 421, 440 A.2d 535, 536 (1982); In the Interest of K.B., 276 Pa.Super. 380, 393, 419 A.2d 508, 515 (1980). Following such a removal, issues of custody and visitation must be determined according to the child’s best interests. In re E.F.V., 315 Pa.Super. 246, 255, 461 A.2d 1263, 1268 (1983); In re Bennage, 303 Pa.Super. 318, 320, 449 A.2d 707, 708 (1982).

The Juvenile Act, at 42 Pa.C.S. § 6301 et seq., offers no guidance regarding the duration of support services. Because of its command to preserve family unity whenever possible, the Superior Court has held that “when there are inadequacies in the child’s home ... [the state agency should] take the steps necessary to instruct the parents in the skills needed, and provide follow-up supervision in the home, where feasible.” In the Interest of Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979). However, the Court has also recognized that such services are costly and that an agency’s resources are not unlimited. In the Interest of M.A., 365 Pa.Super. 179, 183, 529 A.2d 31, 33 (1987).

Because of a concern for continuing family relationships, courts have been hesitant to deny parents regular visits with their children unless such visits will be gravely detrimental to the child. See: In re: the Matter of Lisa and Cynthia, 287 Pa.Super. 255, 260, 429 A.2d 1197, 1199 (1981); Commonwealth ex rel. Sorace v. Sorace, 236 Pa.Super. 42, 44, 344 A.2d 553, 554 (1975).

It must be remembered, however, that a child is a ward of the state, which may take the child away from its parents where the welfare of the child so demands. “When a child is treated cruelly or is exposed to immoral or debasing conditions or is being neglected to its detriment it is the right and duty of the state, acting through its courts, to transfer the child’s custody to persons who will treat the child in such a manner as to foster its well-being and promote its health and happiness.” In re E.F.V., supra 315 Pa.Super. at 255, 461 A.2d at 1268, quoting Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 92-93, 66 A.2d 300, 304 (1949). While a permanent plan is being developed for such a child, a court may appropriately suspend visiting rights of the parents. If such a plan is not pursued or if parental rights are not terminated, the matter of visiting privileges may be reopened. In re E.F.V., supra.

In this case, the parents do not challenge the trial court’s determination that their infant daughter remains dependent. They question only whether there was an adequate basis for the court’s finding that it would be in the best interests of the child to continue out-of-home placement, reduce parental visits, and terminate support services to the biological parents. It is always hard for a court to terminate or limit parental rights. Nevertheless, after having made an independent review of the record in this case, we perceive no basis for interfering with the order entered by the trial court. The parents’ demonstrated lack of parenting skills, including prolonged inability to properly feed and safely supervise the child, has made it essential that custody of Janet Lynn remain in CYS. Moreover, because all efforts to impart parenting skills to the parents have failed, we cannot say that it was an abuse of discretion for the trial court to terminate additional support services. Similarly, we find no abuse of discretion in the trial court’s decision to limit parental visits to one hour every other week. The order does not terminate parental visits. It continues to provide for “regular visitation” and has merely reduced the extent thereof in view of the withdrawn support services and the absence of further need to supplement and evaluate the parent-child relationship.

The Juvenile Act enumerates factors to be considered at a review hearing as follows:

(f) Matters to be determined. — At each disposition review hearing, the court shall:
(1) determine the continuing necessity for and appropriateness of the placement;
(2) determine the extent of compliance with the service plan developed for the child;
(3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;
(4) determine the appropriateness and feasibility of the current placement goal for the child; and
(5) project a likely date by which the goal for the child might be achieved.
(g) Court order. — On the basis of the determinations made under subsection (f) and other relevant evidence, the court, in addition, shall:
(1) determine whether the child:
(i) should be returned to the parents, guardian or other custodian;
(ii) should be continued in placement for a specified period; or
(iii) because of the child’s special needs or circumstances, should remain in placement on a permanent or long-term basis; and
(2) order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child.

42 Pa.C.S. § 6351(f), (g). Our review confirms that the trial court complied with the requirements of this section. The circumstances which necessitated the child’s placement have not been alleviated, and it may now be advisable to consider an alternate, permanent plan for the child. While an alternate plan is being developed, the court could, as it did, reduce parental visits and terminate support services, while continuing the child in the custody of CYS.

ORDER AFFIRMED.


author: CIRILLO, President Judge:

text:
    552 A.2d 265
    Earl H. JAMISON v. CONCEPTS PLUS, INC. and Michael G. Lamelza, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed Dec. 29, 1988.

      William J. Brennan, King of Prussia, for appellants.
    William J. Bolla, Doylestown, for appellee.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County entering judgment in favor of the plaintiff and against the defendants in the amount of $64,-125.00. We affirm.

On December 28, 1982, appellee Earl Jamison executed an agreement of sale with appellant Concepts Plus, Inc. (“Concepts”) for the purchase of a 1.1 acre tract of land in Solebury Township, Bucks County. The contract price was $67,500.00. Jamison paid the entire purchase price as a downpayment pursuant to the agreement of sale. Defendant Michael G. Lamelza guaranteed the obligation of Concepts to return the deposit money if Jamison was unable to secure the necessary permit from township authorities.

Pursuant to Paragraph (b) of the agreement of sale, Jamison was responsible for obtaining from the Solebury Township Board of Supervisors all necessary approvals and permits for the subdivision of the land. In addition, Paragraph (b) provided that defendant Concepts “will cooperate with Buyer in all ways reasonable for Buyer to obtain subdivision approval(s).” Paragraph 5(f) of the agreement provided that “In the event final settlement cannot be made by December 31, 1984 because of Buyer’s inability to obtain final subdivision approval, as aforesaid, then all monies paid by Buyer to Seller shall be refunded to him with simple interest at the rate of ten (10%) percent per annum.*” The asterisk referenced at the end of Paragraph 5(f) provided that defendant Michael G. Lamelza, a principal of Concepts, personally guaranteed the return of monies to Jamison pursuant to the terms of Paragraph 5(f).

Prior to execution of the agreement, engineers of Concepts prepared the subdivision plan. Jamison made application to the Solebury Township Board of Supervisors for approval of the preliminary plan, and he hired John A. VanLuvanee, Esq., to represent his interests during the application process.

On September 20, 1983, the Solebury Township Board of Supervisors met and denied the subdivision application. Neither Jamison nor his attorney were at this meeting. The decision denying the plan was issued on September 29, 1983, and a copy was mailed to Jamison’s counsel on October 5, 1983. Had Jamison wished to appeal this decision, the Pennsylvania Municipalities Planning Code would have required that such an appeal be filed within thirty days of the decision.

In September and October of 1983, Jamison and his attorney became aware that Concepts was in default of the mortgage, and that the mortgagee, Gertrude Bouchayer, had either threatened to institute, or had instituted, foreclosure proceedings against Jamison. Jamison’s counsel recommended against appealing the Board’s decision. Thus, final subdivision approval was never obtained, and Jamison demanded of both Concepts and Mr. Lamelza the return of his deposit plus ten percent interest from December 28, 1982. The appellants denied this request.

Jamison filed suit to recover the downpayment pursuant to the terms of the agreement. The appellants contend that they are not liable for the return of the down money because Jamison failed to exercise “due diligence” in obtaining approval of the subdivision plan. The trial court found that there was no express requirement in the contract obligating Jamison to exercise due diligence, nor could that requirement be implied. The trial court relied upon the case of Hanna v. Tremarco Corp., 31 D. & C. 2d 161 (1963), to support its finding.

Preliminarily, we note that appellate courts are not bound by decisions of the courts of common pleas. City of Philadelphia v. Price, 419 Pa. 564, 215 A.2d 661 (1966). In Hanna, the plaintiffs executed and delivered to defendant Tremarco Corporation an option to purchase land for use as an automotive service station at a price of $30,000.00. Gulf, acting as agent and attorney in fact for Tremarco, applied for a building permit from the building inspector. Four months passed and Tremarco was unable to secure a building permit. Tremarco advised the Hannas that it was extending the time for settlement pursuant to the terms in the option. Two months later, the building inspector denied the building permit, and the application was considered further by the Forest Hills Borough Council. The borough council also denied the permit. Thereafter, Tremarco, through Gulf, surrendered its rights under the option and refused to go through with the purchase, and the borough council rezoned the property from “commercial” to “residential” classification. Id. at 162-163.

The Hannas filed suit against defendants Tremarco and Gulf, claiming that the option agreement required them to take legal action to attempt to compel the borough to issue a building permit. The plaintiffs claimed that, although there was no express provision to this effect, this obligation was imposed upon the defendants by implication from the terms of the contract. The agreement stated that:

should the TREMARCO CORPORATION fail to secure such licenses and permits as it may require for the use of said property in its business, then, at any time before the date of final settlement, it shall have the right to surrender its rights hereunder and receive back the consideration hereunder.

The court disagreed with the Hannas, and pointed out that any obligation on the part of Tremarco to use its best efforts or to exercise due diligence in obtaining a building permit was “significantly absent” from the agreement. Id. at 165.

In the instant case, the relevant clauses in the agreement of sale are as follows:

5. SPECIAL CLAUSES
(b) Buyer shall be responsible for obtaining all necessary approvals and permits for the subdivision of the subject premises from the balance of Seller’s lands, Seller will cooperate with Buyer in all ways reasonable for Buyer to obtain subdivision approval(s).
# $ sje :j« sjs
(e) Final settlement shall be made within sixty (60) days after Buyer has obtained final subdivision approval from the Township of Solebury, but not later than 12/81/84. (f) In the event final settlement cannot be made by 12/31/84 because of Buyer’s inability to obtain final subdivision approval, as aforesaid, then all monies paid by Buyer to Seller on account of the purchase price shall be refunded to him with simple interest at the rate of ten (10%) percent per annum.
# * * # # *

(emphasis supplied).

Appellants Concepts and Michael G. Lamelza claim that the language of the contract implies an obligation of “due diligence” upon Jamison in his attempt to obtain subdivision approval. They argue that because Jamison took no action in correcting the application or filing a new application, and because he did not go back before the Board “to challenge or even question the Board regarding any of the reasons given for its rejection of the application[,]” he violated this implied obligation of due diligence. Appellants analogize to case law imposing an obligation upon the buyer to exercise due diligence in the context of a mortgage contingency clause in a contract for the sale of real estate, and rely upon the case of Newman v. Sablosky, 268 Pa.Super. 85, 407 A.2d 448 (1979). In Newman, this court stated:

Agreements of sale subject to a condition precedent of obtaining adequate financing are valid and binding. Such an agreement, however, imposes a requirement of diligent and good faith effort on the part of the purchaser to secure the proper financing.

Id., 268 Pa.Superior Ct. at 89, 407 A.2d at 451. See generally J. Calamari and J. Perillo, The Law of Contracts §§ 11-1 — 11-41 (2d ed. 1977).

Appellants also rely upon the case of Stabile v. McCarthy, 336 Mass. 399, 145 N.E.2d 821 (1957). In that case, as in the case at bar, the parties entered into a contract for the sale of real estate, and the plaintiff/buyer sought cancellation of the contract and the return of his deposit money. The agreement of sale contained the following provision:

This agreement is subject to the right of the buyer in the event that he shall have been unable to obtain the approval of the Wilmington Planning Board of his proposed subdivision of the ... premises prior to the date ... set for performance ... at his option to cancel this agreement and claim the return of his deposit, in which event this agreement shall terminate without further obligation on the part of either party____

The plaintiff caused an engineer to prepare a subdivision plan. The plan, as introduced into evidence, still had “considerable engineering work ... to be done” on it before it could be presented for the board’s approval. The plaintiff failed to go forward with his plan because percolation tests were so poor “that he didn’t believe the plan could be accepted.” The court stated:

The parties quite clearly intended a binding contract to purchase not a mere option in the plaintiff to purchase without any obligation of affirmative action on his part. If the parties had intended no obligation on the plaintiff to take action they could have used a clause in the special provision importing no suggestion of obligation, inability or impossibility, or could have made the vendor’s obligation to convey and the vendee’s obligation to purchase “subject to” the granting of approval instead of making inability to obtain planning board approval a condition precedent to the exercise of the right to cancel.

Id. at 403, 145 N.E.2d at 823. The trial judge found that the plaintiff was entitled to recover the deposit, based upon the court’s finding that the site was condemned by the sanitarian.

The Massachusetts appellate court disagreed, and concluded that the trial judge misapprehended the evidence when he based his conclusion that the plaintiff was excused from further effort (to obtain approval of a plan) upon some supposed ruling given to the plaintiff by the sanitarian. The court found that the sanitarian had had only one conversation with the plaintiff, and that the conversation had occurred prior to the percolation tests. The court stated that there was “no evidence ... to warrant a finding that the plaintiff made a reasonable effort to obtain ... approval,” and that no ruling by the sanitarian gave the plaintiff any excuse for inaction. Id. at 402, 145 N.E.2d at 823. The court found that although the special provision contained “no express requirement ... that the plaintiff use reasonable efforts to obtain approval, the absence of such an express requirement, even if found in other analogous provisions of the contract, is not significant here, where the circumstances make it plain that reasonable efforts must be made by the plaintiff before his right of cancellation arises.” Id. at 403-04, 145 N.E.2d at 824. Thus, the Stabile court characterized “reasonable efforts” by the plaintiff/buyer in obtaining subdivision approval as a condition precedent to the plaintiff/buyer’s right of cancellation, and found that a duty was implied and imposed upon the buyer to exercise reasonable efforts. Otherwise, as the court noted, the contract would be reduced to a mere option.

In the instant case, the trial court stated:

We find that Mr. Jamison was under no efforts (sic) to exercise “due diligence” or to use his “best efforts” in obtaining the subdivision approval____ The plaintiff was under no obligation to proceed with due diligence to obtain subdivision approval in the first place. Since the plaintiff was under no such obligation initially, we cannot find that such an obligation arose once the subdivision approval had been denied.

(emphasis supplied). Although we agree with the result reached by the trial court, as will be discussed below, we cannot agree with the premise of the trial court’s reasoning — that Jamison was never under any obligation to initiate subdivision approval proceedings. Further, we do not join in the trial court’s apparent characterization of the agreement between the parties as a mere option, which is unilateral and imposes no obligation upon the optionee. In our judgment, the instrument before us is an executory contract for the sale of land, imposing mutual obligations upon the parties.

The parties here intended a contract for the sale of real estate. The agreement was entered into with the understanding that both parties were firmly committed to the performance of the agreement provided that cooperation would be forthcoming from the borough council. The buyer has wisely protected himself, with the seller’s consent, against the possibility that he is unable to obtain the license. In so doing, however, Jamison has impliedly promised to make a diligent and good faith effort to bring about the happening of the condition to his promise. Following the general principles of contract law, we observe that if no duty is implied or imposed upon the buyer in this situation, there is no contract. The buyer’s promise or obligation is illusory. If in fact Jamison was under no obligation initially to proceed with approval proceedings, then the language of the contract is rendered meaningless. Jamison would have bound himself to nothing, and performance would be left to his whim — “I will if I want to.” As one author has noted: “[T]he practice of making promises will lose much of its effectiveness in an economic order of co-operation and exchange if promises are to be performed only when it suits the promisor’s convenience.” Patterson, Constructive Conditions in Contracts, 42 Colum.L.Rev. 903, 953 (1942).

In a leading case in this context, Judge Cardozo stated: It is true that [plaintiff] does not promise in so many words that he will use reasonable efforts____ We think, however, that such a promise is fairly to be implied. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.

Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91, 118 N.E. 214 (1917).

In the case before us, the contract specifically stated that the “Buyer shall be responsible for obtaining all necessary approvals and permits for the subdivision of the subject premises____” Under these circumstances, as in the analogous situation of a mortgage contingency clause, we find no significance in the absence of words such as “due diligence,” “reasonable efforts,” or “best efforts.” The statement that “Buyer shall be responsible for obtaining all necessary approvals and permits for the subdivision” cannot reasonably be interpreted, as the trial court states, to mean that Buyer was “under no obligation” to do anything. We must hold the promisor to the reasonable meaning of his or her words in order to protect the needs of society and trade as well as the promisee’s justified reliance upon a promise. See 1 Williston, Contracts §§ 21, 35 (3d ed. 1957); see also Slater v. Pearle Vision Center, Inc. 376 Pa.Super. 580, 546 A.2d 676 (1988) (where it is clear that an obligation is within the contemplation of the parties at the time of contracting or is necessary to carry out their intentions, the court will imply the obligation even where the contract itself is not ambiguous); Gallagher v. Upper Darby Township, 114 Pa.Commw. 463, 471-72, 539 A.2d 463, 467 (1988) (same); cf. Funke v. Paist et ux., 356 Pa. 594, 52 A.2d 655 (1947) (contract for sale of realty was contingent upon obtaining approval of zoning board for use of dwelling house as dental office; purchaser sent letter giving full disclosure of his intended use, and board replied stating that no formal approval was required; held: contingency clause was sufficiently complied with and purchaser was entitled to specific performance); Burke v. General Outdoor Advertising Co., 110 Pa.Super. 343, 168 A. 334 (1933) (in a lease agreement dispute, the court held that the question of whether lessee applied for permit in good faith was a question of fact).

In Di Benedetto v. Di Rocco, 372 Pa. 302, 93 A.2d 474 (1953), the parties entered into a contract for the sale of real estate. The agreement of sale provided: “In the event the buyer cannot make the settlement, he may cancel this agreement.” Id., 372 Pa. at 303, 93 A.2d at 474. The Pennsylvania Supreme Court reasoned that the word “cannot” meant objective inability, rather than subjective unwillingness. Id., 372 Pa. at 304, 93 A.2d at 475. Likewise, we find the word “inability” in the agreement of sale before us to mean objective inability, rather than subjective unwillingness or an absence of any obligation whatsoever.

As we stated above, despite our disagreement with the trial court’s reasoning, we believe the trial court has reached the correct result. In its Memorandum and Order Disposing of Post Trial Motions, the trial court stated that:

[E]ven were one to apply a standard of due diligence or good faith, or reasonable conduct, we do not believe that a purchase of real estate which requires subdivision approval further requires a buyer to appeal from an adverse decision of the Township authorities.

We agree. Appeal of an adverse decision extends well beyond sufficient compliance with the contingency clause, or a good faith effort to obtain a permit, license, or subdivision approval from township or municipal authorities. Here, the trial court made the following findings of fact with respect to Jamison’s efforts to obtain subdivision approval: pursuant to the agreement of sale, Jamison caused appearances to be entered before the township planning commission and the township board of supervisors; Jamison made application for approval of a preliminary plan of subdivision; Jamison hired an attorney to represent his interests before the township and the various boards and agencies in connection with the subdivision application. These facts are fully supported by the record, and therefore we see no need to remand for a determination of whether Jamison made a reasonable effort to obtain subdivision approval pursuant to the agreement of sale. Jamison’s efforts, although not successful, were sufficient to establish due diligence.

Appellants also claim that it was prejudicial error for the trial court to refuse to allow their expert witness to testify at trial. Appellants have not included this issue in their motion for post-trial relief. We therefore find appellants have waived appellate review of this issue. Pa.R.A.P. 227.1

ORDER AFFIRMED.

       The return of monies to Buyer pursuant to the terms hereof shall be guaranteed personally by Michael G. Lamelza, principal of Concepts Plus, Inc.

      . The Stabile court concluded that a finding of reasonable efforts, whether express or implied in the contract, was a question for the trier of fact. Based upon the record, the court concluded there was insufficient evidence to warrant a finding that the plaintiff had made reasonable efforts to obtain subdivision approval. Id. at 402, 145 N.E.2d at 823.


author: BECK, Judge:

text:
    552 A.2d 270
    COMMONWEALTH of Pennsylvania v. Gary W. KIESSLING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 26, 1988.
    Filed Dec. 27, 1988.

      G. Scott Gardner, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
    Before ROWLEY, DEL SOLE, and BECK, JJ.
   BECK, Judge:

The issue on appeal is whether a search warrant which misidentifies the location of the premises to be searched in a multi-dwelling building is invalid. Under the circumstances of this case, we find that the warrant was not invalid and affirm the trial court’s denial of the appellant’s suppression motion.

Gary Kiessling appeals a judgment of sentence imposed following his convictions for possession of cocaine, possession with intent to deliver cocaine, and possession of marijuana.

At the time of the search which led to his arrest, Kiessling lived in a house divided into a top floor and a bottom floor residence. Kiessling lived in the first floor residence. The search warrant issued in this case described the dwelling to be searched as follows:

The home is divided into two dwellings. The owner named Eisworth resides in the bottom, and Gary Kiessling resides in the top. Entrance is gained to the Kiessling dwelling by a door on the outside located on the north of the home ... After entering the door, a stairway leads up to the Kiessling dwelling.

Kiessling attempted to have the evidence seized from his residence suppressed based upon the fact that the warrant mistakenly stated that he lived on the second floor of the dwelling when in fact he resided on the first floor. The trial court held that despite the slight error, the warrant was sufficiently specific and therefore valid. Furthermore, the court noted that the execution of the warrant was constitutional as the officers, upon realizing the error, proceeded directly to the Kiessling residence on the first floor.

The Fourth Amendment standard under which we review the warrant is whether the officers’ error in obtaining and executing the warrant was reasonable under the circumstance. On appeal, Kiessling does not address the reasonableness standard but urges that any warrant which incorrectly describes a premises is invalid. Citing Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469 (1987), appellant argues that a search warrant for a multiple-unit dwelling is invalid for lack of specificity where it fails to describe the particular room or sub-unit to be searched with sufficient definiteness to preclude the search of other units.

A recent United States Supreme Court case illuminates the standard to be used in reviewing the validity of a search warrant and the execution thereof in a multi-dwelling housing unit. Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). In Garrison, police officers obtained a warrant to search the person of one McWebb and “the premises known as 2036 Park Avenue third floor apartment,” for controlled substances and related paraphernalia. When police arrived at the door of the building, they encountered McWebb who escorted them to the third floor. Once there, they entered and began to search an apartment where they found controlled substances. As soon as police discovered that the apartment they were searching was not McWebb’s but Garrison’s they ceased their search. The information available to the officers at the time the warrant was issued indicated that McWebb alone occupied the third floor apartment, when in reality both McWebb and Garrison occupied separate dwellings on the third floor.

Before the United States Supreme Court Garrison argued that the items seized from his apartment should have been suppressed as the warrant was too broad and did not grant the officers the authority to search his apartment. First, the Court addressed the validity of the warrant itself. The Garrison Court instructed that the validity of the warrant as to the identification of the premises must be tested by the information that the officers disclosed, or should have disclosed, to the issuing magistrate when they applied for the warrant. The Garrison Court found that the warrant was valid when issued because it was based upon information the police could reasonably believe. Such information led police to the conclusion that there was only one apartment on the third floor. The court noted that the police had made a reasonable investigation, including verification of information obtained from a reliable informant, an exterior examination of the building and an inquiry from the utility company which serviced the building.

We point out that the Warrant Clause protection of the Fourth Amendment is aimed at preventing general searches which may be exploratory in nature. Traditional Fourth Amendment protections are not violated, however, where the error in the warrant is minimal and is based on information that the police after reasonable investigation reasonably believed to be accurate.

[w]e must judge the constitutionality of their [the police’s] conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued. Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing magistrate.

Garrison, 480 U.S. at 85, 107 S.Ct. at 1017.

The Garrison Court also considered whether the execution of the warrant was proper. The Court concluded that the search of Garrison’s apartment was proper as the officers’ failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Furthermore, once the officers realized that there were two units on the third floor, they discontinued the search of Garrison’s apartment. The Court stated:

... the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. 480 U.S. at 88, 107 S.Ct. at 1019.

Applying the Garrison analysis to the instant case, we first consider whether the warrant itself was valid. Here, as in Garrison, there is no claim that the warrant failed to describé adequately the “persons or things to be seized ... or that there was: no probable cause to believe that those things might be found in the place to be searched.” Id. at 85, 107 S.Ct. at 1017. Rather, Kiessling asserts that the warrant wap invalid because it failed to adequately describe the place 'to be searched. We conclude, as did the Court in Garrison, that the factual mistake on the face of the warrant did I not operate to invalidate an otherwise valid warrant.

The Garrison court stated:

While the police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants. 480 U.S. at 87, 107 S.Ct. at 1018.

In Commonwealth v. Kaplan, 234 Pa.Super. 102, 339 A.2d 86 (1975), a panel of this court considered a mistake on a warrant very similar to that in the instant case. In Kaplan, appellant challenged the validity of a warrant which described the premises to be searched as “# 1821 Pine Street, 3rd Floor Front — 3 story brick building.” His challenge was based upon the fact that his apartment, the only one searched, was actually the third floor rear apartment in a four story building. The panel held that “a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid.” 234 Pa.Super. at 104, 339 A.2d at 88. In addition, under Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119 (1963), it is not necessary to set forth the exact location of an apartment within a building in the search warrant. As was concluded in Kaplan, the fact that Kaplan’s apartment was the only one searched, despite the slight error on the warrant, supported the conclusion that the description of the premises in the warrant was sufficient to enable the police to search the correct apartment.

Under the Garrison analysis, once the reviewing court determined that the warrant itself was valid, the next question is whether the execution of the warrant was proper. In Garrison, the Court held that the officers acted reasonably in executing the warrant. They began their search in conformity with the valid warrant, and when they discovered the mistake on the warrant, they immediately discontinued their search. Unfortunately for Garrison, the officers had already found the contraband. As the execution of the warrant under the facts in Garrison was held to be constitutional, there is no question as to the constitutionality of the execution of the warrant in the instant case.

In this case, the officers realized the mistake on the warrant almost immediately. When they reached the second floor residence specified on the warrant, they became aware of the fact that Kiessling’s residence was located on the first floor. They then proceeded to Kiessling’s residence to begin the search. It is clear that under these facts, “the officer’s conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” 480 U.S. at 88, 107 S.Ct. at 1019.

Since we conclude that the warrant was valid when issued, and that the execution of the warrant was proper, we affirm the order of the trial court.

The order of the trial court is affirmed.


author: McEWEN, Judge:

text:
    552 A.2d 273
    COMMONWEALTH of Pennsylvania v. Madeline FARMER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1988.
    Filed Dec. 30, 1988.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before McEWEN, MGNTEMURO and KELLY, JJ.
   McEWEN, Judge:

Appellant has undertaken this direct appeal from the judgment of sentence to a term of not less than thirty days nor more than twenty-three months, imposed by the distinguished Judge Lawrence E. Wood after appellant pleaded guilty to the offense of driving while under the influence of alcohol. 75 Pa.C.S. § 8781.

Initially, we must determine whether this appeal is properly before us. Appellant was sentenced on January 22, 1988, but in a timely motion to modify sentence, pursuant to Pa.R.Crim.P. 1410, requested that the court vacate the judgment of sentence pending a ruling upon the motion. The court, however, did not vacate the judgment of sentence, but scheduled a hearing upon the petition for February 18, 1988. The motion for reconsideration of sentence was denied on February 18, 1988, and appellant filed a notice of appeal from the judgment of sentence on March 9, 1988.

The Superior Court, on May 81, 1988, entered an order quashing the instant appeal as untimely since it had been filed more than 80 days after the imposition of sentence. This Court, however, on July 12, 1988, in response to a petition to reinstate the appeal, reinstated the appeal with a direction to the parties to address the jurisdictional issue of the timeliness of the appeal.

Appellant concedes that an appeal must be filed “within thirty days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 908(a). Appellant contends, however, that the following statements of the trial court extended the effective date of the sentence, for purposes of appeal, to February 21, 1988. This argument is based upon the following exchange between counsel and the court:

THE COURT: All right, And I can adjust the beginning point of that sentence if it’s going to be helpful here.
MR. BOYER: Sir, I guess what I need to request is that bail be continued pending the filing of a motion for reconsideration and discuss the prospects of an appeal with Ms. Farmer.
THE COURT: Mr. Kane, any objections there?
MR. KANE: No, sir.
THE COURT: All right. I will continue bail pending a motion for reconsideration, but understand all that has to be concluded within 30 days or the sentence automatically commences at the end of that time.
MR. BOYER: I understand.

Appellant argues that this exchange continued the time for appeal, and relies upon Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). In Martin,

[tjrial commenced on February 10, 1984, before a judge and a jury on the driving under the influence charge, and before the same judge without a jury on the driving while suspended charge. On February 13, the jury was charged and sent out to deliberate. In the interim, further testimony was heard on the driving while suspended offense before the judge alone. The appellant was found guilty by the judge on this count and was immediately sentenced to ninety days imprisonment, plus a $1,000.00 fine. The court then deferred] the effectiveness of the sentence for ten days or until February 23. Subsequently, the jury returned a verdict of guilty on the DUI charge.

Commonwealth v. Martin, supra, 346 Pa.Superior Ct. at 133, 499 A.2d at 346 (emphasis supplied). Post-verdict motions were subsequently filed by Martin and denied, and sentence was imposed on July 24, 1984, both as to the DUI charge and “reaffirmed” as to the driving under suspension charge.

Martin filed a notice of appeal on August 7, 1984, within thirty days of the sentencing hearing of July 24, 1984. While the Court in Martin observed that “appellant should have filed his notice of appeal for that [driving while under suspension] judgment of sentence within thirty days of February 23, 1984”, this statement was merely dicta since the court did not quash the appeal.

Moreover, the facts of Martin do not bear any resemblance to the facts of the instant case. Appellant in this instance was not found guilty but rather entered a plea of guilty. Post-verdict motions, therefore, could not be filed by appellant, either before or after the imposition of sentence. Moreover, appellant was aware of the 30 day time period within which to file an appeal as is evidenced by her request, in her Rule 1410 motion, that the court vacate the judgment of sentence pending a ruling upon the motion. “The mere scheduling of a hearing on a Rule 1410 motion does not affect the running of the time for appeal. Since the appeal lies from judgment of sentence the lower court cannot extend its time to consider a Rule 1410 motion unless it first vacates the judgment of sentence in question. It cannot simply extend the time for appeal. See Pa.R. Crim.P. 1410, Comments.” Commonwealth v. Leonard, 308 Pa.Super. 292, 294, 454 A.2d 136, 137 (1982) (emphasis supplied).

The trial court in the instant case did not vacate the judgment of sentence, but did, in fact, deny the Rule 1410 motion prior to the expiration of the appeal period. Appellant could have filed her notice of appeal simultaneously with her Rule 1410 motion or immediately following the denial of her Rule 1410 motion. She did neither. Nor may it be said that by the order of accommodation continuing bail and extending the time within which appellant was to report to begin serving her sentence, did not mislead appellant as to the time within which an appeal had to be filed.

We are, therefore, constrained to quash this appeal as untimely.

APPEAL QUASHED.

      . We would note that the Criminal Procedural Rules Committee’s proposed Rule 1410 would resolve the procedural complexities attendant to cases such as Martin. See: Pennsylvania Bulletin, Vol. 18, No. 34, August 20, 1988.