author:
TAMILIA, Judge:
      KELLY, Judge,

text:
    612 A.2d 1077
    COMMONWEALTH of Pennsylvania v. Torrence EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1992.
    Filed Aug. 25, 1992.

      Robert M. Barrett, Pittsburgh, for appellant.

      James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

Torrence Edwards appeals from the December 16, 1991 Order denying his petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq., hereinafter PCRA.

We recite the facts contained in the PCRA court’s Opinion as an accurate history of the events leading to this appeal.

On March 17, 1986, Petitioner was charged by Criminal Information at CC8605668 with two counts of Receiving Stolen Property, one count of Criminal Attempt (Theft) and one count of Criminal Conspiracy. On August 26, 1986, Petitioner entered a guilty plea to all charges. On that same date, Petitioner was sentenced to 7 to 23 months incarceration on the charge of Criminal Attempt, 7 to 23 months incarceration on one count of Receiving Stolen Property and five years probation on the second Receiving Stolen Property count. No further penalty was imposed on the remaining charge. The sentences were consecutive and the aggregate sentence was 14 to 46 months incarceration with five years probation. No Post-Trial Motions were filed.
On January 8, 1987, Petitioner was paroled for the balance of the maximum sentence of the Criminal Attempt count. On June 3, 1987, Petitioner was paroled for the balance of the maximum sentence on count two, Receiving Stolen Property.
During Petitioner’s parole period, he was charged with Receiving Stolen Property, Unauthorized Use of an Automobile and Possession of Instruments of Crime at CC8040680. On February 7, 1989, Petitioner entered a guilty plea to those charges before the Honorable Joseph H. Ridge. Petitioner also entered a guilty plea to simple Assault before the Honorable Raymond A. Novak on May 5, 1989 at CC8813094.
On July 6, 1989, Petitioner again appeared before this Court as a convicted violator of his probation and parole. The Court revoked his probation and sentenced him, with respect to the probation violation, to 2 to 7 years incarceration. The Court took no action with respect to the parole violation. No Motion to Modify Sentence was filed and no direct appeal from the judgment of sentence was taken.

(Slip Op., Horgos, J., 2/6/92, pp. 1-2.) On November 11, 1989, appellant filed a pro se PCRA petition which was subsequently amended by court-appointed counsel, Robert Barrett. The PCRA petitions raised issues concerning the validity of his August 26,1986 guilty plea and the effectiveness of counsel at the July 6, 1989 probation revocation. Appellant also argues the court erred by revoking his probation on July 6, 1989. At the PCRA hearing conducted on December 16, 1991, appellant failed to appear, although his counsel was present, and no testimony was offered in support of the petitions’ allegations. The court, therefore, denied the amended petition and this appeal followed.

To obtain PCRA relief a petitioner is required to plead and prove, by a preponderance of the evidence, his conviction or sentence resulted from one or more enumerated errors or defects in the proceedings. In light of the fact no evidence was offered at the PCRA hearing and because this Court’s scope of review is limited to determining whether the PCRA court’s findings were supported by the record and its Order is free of legal error, we question whether this Court is empowered to review proceedings wherein no evidence was presented, effectively placing us in the position of factfinder. Nevertheless, in the interest of judicial economy we will address the merits of appellant’s arguments.

Appellant avers he is entitled to PCRA relief because he entered his plea of guilt on the basis of trial counsel’s representations there were no available defenses to the crimes with which he was charged and he would receive a maximum sentence of seven (7) to twenty-three (23) months.

The withdrawal of a guilty plea after sentencing will be permitted upon a showing of severe prejudice to the appellant in the form of “manifest injustice” which can only be shown when the plea is involuntary. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Disappointed expectations as to the sentence imposed do not vitiate guilty pleas. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976). Appellant pled guilty in open court after an extensive oral colloquy and after having completed and signed a written colloquy wherein he swore he was satisfied with counsel’s representation and no promises had been made to induce his guilty plea. Appellant filed neither a motion to withdraw his guilty plea nor a direct appeal from judgment of sentence. No evidence has been offered to support appellant’s contention his plea was anything other than voluntary and knowing. We find the written and oral colloquies refute appellant’s allegation his plea was involuntary. Accordingly, we find this argument without merit.

Appellant’s ineffective assistance of counsel argument is likewise devoid of merit. Appellant argues he was denied effective assistance of counsel by trial counsel’s unlawful inducement of a plea of guilt, and counsel’s failure to file motion to withdraw the guilty plea, seek a modification of his sentence or file a direct appeal from judgment of sentence. We disagree.

Counsel is presumed to be effective and the burden of proving ineffectiveness rests on the defendant. Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989). To establish ineffectiveness the appellant must first prove the issue, argument or tactic foregone by counsel had arguable merit. Commonwealth v. Tressler, 526 Pa. 139, 584 A.2d 930 (1990). If the claim is devoid of merit, the inquiry ceases. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If the claim possesses merit appellant must show counsel’s course of action had no basis designed to effectuate appellant’s interests, and defendant must demonstrate how he was prejudiced by the ineffectiveness. Commonwealth v. McConnell, 404 Pa.Super. 439, 591 A.2d 288 (1991).

Having found appellant’s plea to have been voluntarily offered, we dismiss appellant’s first ineffectiveness claim without discussion.

As to counsel’s failure to withdraw the guilty plea or file post-sentence motions and/or a direct appeal, appellant’s argument is limited to the bald averment “[t]he failure of counsel to undertake such actions has no legitimate basis and has deprived the Appellant of the preservation of such issue and appellate review thus resulting in prejudice to the Appellant.” (Appellant’s brief at p. 9.) This contention, without supporting argument and evidence or PCRA hearing testimony in support thereof, must likewise fail. See Dauphin Deposit Bank & Trust Co. v. Pifer, 383 Pa.Super. 275, 556 A.2d 904 (1989) (Claims presented in boilerplate fashion are not preserved for review). See also Pa.R.A.P. 2119.

Finally, appellant argues the court erred by revoking his probation where evidence failed to demonstrate probation was not an “effective vehicle to accomplish a deterrent against future anti-social conduct.” (Appellant’s brief at 10.) Appellant does not argue he did not violate the terms of his probation, rather he avers an extension of his probation, rather than incarceration, was the appropriate remedy for his violation.

The purpose of a probation revocation hearing is to ascertain if the defendant’s conduct supports a finding probation remains an effective vehicle to accomplish rehabilitation and prevent continuing anti-social conduct. Commonwealth v. Schatzel, 297 Pa.Super. 7, 442 A.2d 1185 (1982). The Honorable Robert P. Horgos found incarceration was the appropriate remedy and reasoned, inter alia:

You have shown a disregard for the system in that whatever break the court attempts to give you, you don’t benefit by it. We put you in a minimum security place; still didn’t help you out. The court warned you repeatedly. You came back again. Not only violated each of them. You went before Judge Ridge and Judge Novak. Now you get involved with violent offenses of assault. Assaultive behavior. Before it was just thievery of automobiles, which is progressing, and other thievery as well.
The court feels that the court has to fashion a sentence that protects society as well as takes into consideration that you violated two paroles each of them seven to 23 months consecutive period. So the court would be remiss if it did not give you more than what you received the previous time.
Now, the court feels your rehabilitative needs cannot be served by probation. It has to be done through incarceration. The character is such as the court just does not believe even after you finish this sentence that you won’t be out doing the same thing again.

(Probation Violation Hearing, 7/6/89, p. 10.)

The probation revocation hearing transcript indicates the court properly disclosed in open court its reasons for imposing sentence following revocation of probation. See Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990). Because the record reveals the trial court did not abuse its discretion, we will not disturb the two to seven year term of incarceration imposed July 6, 1989.

Based on the foregoing reasons of law and fact, we affirm the December 16, 1991 Order denying appellant’s request for post-conviction relief.

Order affirmed.

Concurring statement by KELLY, J.

MONTGOMERY, J., concurs in the result.

KELLY, Judge,

concurring:

While I agree with the result reached by the majority, I am compelled to note the following. First, I must respectfully disagree with the majority to the extent it questions this Court’s ability to review PCRA proceedings “wherein no evidence was presented.” Majority Opinion at 3. Given that this Court is empowered to review PCRA petitions wherein an evidentiary hearing was not even granted, see Commonwealth v. Weddington, 514 Pa. 46, 522 A.2d 1050 (1987), it would appear to me that we are authorized as well to review any petition such as this in which a hearing was granted but no evidence presented. The failure to present evidence at such a hearing does not, in my opinion, place us in the role of fact finder during appellate review, but rather simply indicates that the burden of proof incumbent upon any defendant properly granted an evidentiary hearing has not been overcome.

Such is this case herein. By failing to appear at the evidentiary hearing, appellant effectively lost whatever chances he had had to successfully establish that his counsel had so ineffectively served him during his guilty plea as to sufficiently undermine the reliability of the truth-determining process. See Commonwealth v. Thomas, 396 Pa.Super. 92, 99, 578 A.2d 422, 425 (1991) (“Under the PCRA, a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type ‘which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilty or innocence could have taken place.’ ”). Hence, I concur.

      . I note in passing that I would consider appellant’s challenge to the imposition of sentence for violation of parole unreviewable at this stage in the proceedings. Appellant does not dispute that he actually violated parole. Rather, appellant argues only that the sentence imposed for such a violation was an abuse of discretion. Such an issue is not cognizable under the PCRA. See Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    612 A.2d 1081
    WILLIAMSPORT NATIONAL BANK v. Wayne E. SHREY, J.J. Heavy Repair, Incorporated and Charles Hall, d/b/a Halls Marine. Appeal of J.J. HEAVY REPAIR, INCORPORATED.
    Superior Court of Pennsylvania.
    Argued June 4, 1992.
    Filed Sept. 10, 1992.
    Scott Williams, Williamsport, for appellant.
    Thomas A. Marino, Williamsport, for Williamsport Nat. Bank, appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order entered which declared that appellee’s security interest in the property in question had priority over the claim of appellant. Appellant raises the following issues on appeal: (1) whether the trial court erred in finding that appellee has a security interest in the property in question; (2) whether the trial court erred in finding that appellee was an “owner” of the property in question; and (3) whether the trial court erred in finding that the appellee did not impliedly consent to the repairs done to the property in question. For the reasons set forth below, we reverse.

On January 31, 1990, appellee, Williamsport National Bank, lent $25,000.00 to Wayne Shrey. In exchange, Shrey executed a Promissory Note wherein he agreed to repay the principal sum of $25,000.00 on or before January 31, 1991, together with interest due monthly, at the rate of 12% per annum. To secure payment of the money he owed, Shrey also granted to appellee a security interest in, among other things, two motors and a 1988 31-foot custom built Marlin boat and a trailer. Appellee’s security interest in the trailer was perfected by the notation of its lien on the certificate of title thereto. According to appellee, its security interest in the boat was perfected by an existing financing statement filed on April 15, 1988 and also by a financing statement filed on February 13, 1990.

In February 1990, Shrey failed to make the monthly interest payment as it became due. Thereafter, Shrey continued to fail to make timely payments as provided for in the loan agreement. When Shrey failed to correct his default, appellee attempted to repossess the collateral securing the loan.

At this point, appellee learned that the boat and trailer were in the possession of appellant, J.J. Heavy Repair, Inc. The boat had been in the possession of J.J. since November 19, 1989. On that day, Mr. Shrey was involved in a one vehicle accident while towing the boat and trailer. The boat and trailer were both damaged to the point that Shrey could not move them from the scene. As a result, Shrey called J.J. and requested that they tow the boat and trailer to their garage. The boat remained in the garage for several months and in April 1990 J.J. started to repair the boat per Mr. Shrey’s request. The motors, the bank discovered, were in the possession of Hall’s Marine.

The bank asked Shrey, J.J. and Hall to deliver its collateral to it. When all three refused, appellee instituted a replevin action on May 14, 1991 to recover the collateral pledged as security for the $25,000 loan. On May 28, 1991, appellee filed a Motion for a Writ of Seizure. Thereafter, appellee and Hall agreed on a settlement regarding the motors in Hall’s possession. J.J., however, filed an answer and counterclaim asserting that it had a superior possessory lien on the boat as a result of the repair work it had done on the boat.

On August 8, 1991, after a hearing on appellee’s Motion for a Writ of Seizure, the trial court granted the motion. On September 4, 1991, a default judgment was entered against Mr. Shrey for failing to answer the Complaint. Thereafter, on September 11 and 12, 1991 a hearing was held to determine the priority of appellee’s and appellant’s security interest in the boat. On September 12, 1991, the trial court ordered that appellee’s security interest in the boat was superior to J.J.’s possessory lien, except as to the towing charges incurred on November 19, 1989. The basis for the trial court’s decision was that J.J. did not receive consent from the bank, the holder of a security interest in the boat, prior to doing the repair work on the boat. It is from this order which appellant now appeals.

On appeal, appellant raises three separate issues regarding the trial court’s findings relating to appellee’s security interest. On appeal, however, we address only the issue relating to the trial court’s finding that J.J. did not receive consent from the bank prior to doing repairs to the boat. The trial court stated that since the bank, the holder of a perfected security interest in the boat, did not consent to the repair work done to the boat by J.J., its security interest had priority over J.J.’s repairman’s lien. Since we find, however, that such consent is not needed under the Uniform Commercial Code, we reverse.

In reaching its decision, the trial court followed the opinion of the Pennsylvania Supreme Court in Associates Financial Services v. O’Dell, 491 Pa. 1, 417 A.2d 604 (1980). In O’Dell the supreme court held that

Whenever a workman or artisan, by his labor or skill, increases the value of personal property placed in his possession to be improved he has a lien upon it for his proper charges until paid, but in order to charge a chattel with his lien, the labor for which the lien is claimed must have been done at the request of the owner or under circumstances from which his assent can be reasonably implied. It does not extend to one not in privity with the owners.

Id., 491 Pa. at 4-5, 417 A.2d 604 (quoting Meyers & Bro. v. Bratespiece, 174 Pa. 119, 121, 34 A. 551, 551 (1896). This decision, however, was decided under the common law rather than under the Uniform Commercial Code. As is apparent from note 1 of the opinion, the court relied upon the old Uniform Commercial Code and its accompanying Pennsylvania Bar Association Notes in reaching its decision. See 12A P.S. § 9-310. These notes, however, analyzed the common law, and the decisions, such as Meyers & Bro. supra, prior to the enactment of the U.C.C. in Pennsylvania. Under the U.C.C. and the Comments to it, however, a different result is mandated.

13 Pa.C.S.A. § 9310 provides
When a person in the ordinary course of his business furnishes services or materials with réspect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

The purpose of this section is to ensure that “liens securing claims arising from work intended to enhance or preserve the value of the collateral take priority over an earlier security interest even though perfected.” 13 Pa.C.S.A. § 9310 Comment 1. The intended effect of § 9310 is to make

the lien for services or materials prior in all cases where they are furnished in the ordinary course of the lienor’s business and the goods involved are in the lienor’s possession. Some of the statutes creating such liens expressly make the lien subordinate to a prior security interest. This section does not repeal such statutory provisions. If the statute creating the lien is silent, even though it has been construed by decision to make the lien subordinate to the security interest, this Section provides a rule of interpretation that the lien should take priority over the security interest.

Id. at Comment 2.

In the instant case, J.J. is claiming a common law possessory repairman’s lien. Since this is a lien created by rule of law, 13 Pa.C.S.A. Section 9310 governs the outcome of the case. The record establishes that J.J. did not receive the implied or express consent of the bank before doing the repair work to the boat. Under the common law, this failure to receive the bank’s consent would be fatal to J.J.’s claim that his lien was superior to that of the bank. See Meyers v. Bratespiece, supra. Under the U.C.C., however, no consent is needed in order to obtain a possessory lien. As aptly stated by the Supreme Judicial Court of Maine:

To read in Section 9-310 the limitational requirement of the common law that the perfected security interest holder must have given consent to the repairs before the common law mechanics lien can arise would practically deprive that section of the Act of any meaningful effect, since there would be few, if any, cases where such advance consent would be present.

General Motors Acceptance Corporation v. Colwell Diesel Service and Garage, Inc., 302 A.2d 595, 599 (1973). Similarly, in Nickell v. Lambrecht, 29 Mich.App. 191, 185 N.W.2d 155 (1970), the Michigan Court of Appeals held that:

It would subvert the apparent purpose to adopt the view of those pre-code cases that prefer the conditional sales vendor to the repairman and to hold for the plaintiff in this case on the ground that he did not consent to the creation of the repairman’s lien and, thus, no lien arose at common law. To so hold would be to emphasize, to the exclusion of all other considerations, the retention by the plaintiff of title and might revitalize formalisms eliminated by the code. This would be contrary to main threads of the code: the de-emphasization of title in favor of a functional approach and the elimination of distinctions in the law’s treatment of security interests based on their form.

See also Manufacturers Acceptance Corp. v. Gibson, 220 Tenn. 654, 422 S.W.2d 435 (1967) (wherein it was held that claims arising from work intended to enhance or to preserve the value of the collateral would take priority over an earlier security interest, even though perfected, and even though the artisan’s services or materials were furnished without the knowledge or approval of the secured party.) The following courts have also found that the common law lien of a repairman was entitled to priority under the U.C.C. over a previously perfected security interest: National Bank of Joliet v. Bergeron Cadillac, Inc., 66 Ill.2d 140, 5 Ill.Dec. 588, 361 N.E.2d 1116 (1977); Krueger v. Texas State Bank, 528 S.W.2d 121 (Tex.Civ.App.1975); Corbin Deposit Bank v. King, 384 S.W.2d 302 (Ky.1964); and Gables Lincoln-Mercury, Inc. v. First Bank and Trust Company of Boca Raton, 219 So.2d 90 (Fla.App.1969).

The implications of failing to follow the U.C.C. as explained above would seriously impede upon the ability of repairmen, such as J.J., to exist in today’s commercial market. The ability of the repairman to protect himself by seeking the permission of a lienholder is commercially unrealistic. Unlike the O’Dell case, the instant case does not involve a motor vehicle which is required to have a certificate of title indicating the existence of any encumbrances. Rather, this case involves a boat, which is not even required to have a certificate of title. Thus, contrary to the situation in O’Dell, the repairman cannot protect himself by merely checking the title for indebtedness. Rather, the repairman would have to check to see if any financing statements were filed giving anyone security in the boat. Checking for a recorded financing statement could end up being a cumbersome task. To be completely protected, the repairman would necessarily have to check for a financing statement in the county in which the boat owner lives (or with an out of state debtor, in the office of the prothonotary where the boat is kept). See 13 Pa.C.S.A. § 9401. Imagine the situation where a Pennsylvania boat owner takes his boat to Florida for a fishing trip. While in Florida, the boat breaks down and the owner takes the boat to a repair shop in Florida. Must the Florida repairman go to Pennsylvania, to the county where the boat owner lives, go to the office of the prothonotary, and check to see if a security interest has been recorded? Suppose the boat breaks down on Friday afternoon, does the boatowner have to wait until Monday morning so that the repairman can check the office of the prothonotary? Even if the repairman finds a recorded financing statement, and can identify the secured party, what steps must he then take to get permission to complete the repairs? If the secured party has more than one office, which office must the repairman get permission from? Furthermore, what type of permission need the repairman get? A verbal approval on the telephone? A written approval? And who must the repairman get the approval from? From anyone in the office? Clearly, such a result would impede upon the repairman’s ability to function and exist in today’s commercial market. This type of absurd situation is exactly what Section 9310 is designed to prevent, and demonstrates the necessity of following the rule that gives repairmen priority, regardless of whether or not they receive permission from a secured party.

Accordingly, in keeping with the intended purpose of Section 9310 and the law among the various other jurisdictions cited herein, we now hold that the common law repairman’s lien given by rule of law within the purview of Uniform Commercial Code § 9310 has priority over a prior security interest, even if perfected, regardless of whether or not consent for the repairs was given by the holder of the security interest. Thus, in the instant case, we find that as a result of the repair work J.J. performed on Mr. Shrey’s boat, he acquired a common law possessory lien in the boat. This lien, under 13 Pa.C.S.A. § 9310, takes priority over the security interest of Williamsport National Bank, whether or not that interest was perfected.

Order reversed.

      . This financing statement was not part of the trial court record, and thus cannot be considered on appeal.

      . In O'Dell the court also held that the holder of a perfected security interest is an "owner” of the collateral, and thus must consent to the repair work.

      . Although appellant argues that the bank impliedly consented to J.J.’s repair work, we find this argument to be without merit. The trial court found, and we agree, that there was no evidence that the bank consented to the work. In any event, in light of our holding in this case, the issue of whether the bank consented to the repairs is not germane to the priority determination.

      . We note that one of the main purposes of the Uniform Commercial Code is “to make uniform the law among the various jurisdictions.” 13 Pa.C.S.A. § 1102(b)(3).

      . In light of our holding today, we find it unnecessary to decide whether the trial court erred in finding that the bank’s security interest in the boat was perfected.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    612 A.2d 1085
    COMMONWEALTH of Pennsylvania v. Leroy BRANCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1992.
    Decided July 16, 1992.

      James R. Michael, Uniontown, for appellant.
    Ralph C. Warman, Dist. Atty., Uniontown, for Com. appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a trial court which has accepted a guilty plea, subject to review following preparation of a report by the Probation Office, can subsequently reject the plea and the agreement on which it was based. Appellant contends that the trial court’s subsequent rejection of guilty pleas to charges alleged in three separate informations violated principles of double jeopardy. For the reasons which follow we reject this argument and affirm the order of the trial court which denied appellant’s motion to dismiss.

Leroy Branch was charged at No. 824 Fayette County, 1989, with criminal conspiracy, burglary, theft by unlawful taking and receiving stolen property. Identical charges arising from a separate incident were lodged against him at No. 826 Fayette County, 1989. Finally, at No. 403 Fayette County, 1990, he was charged with harassment, disorderly conduct and retail theft. Pursuant to plea agreement, Branch agreed to plead guilty to the theft charges contained in informations Nos. 824 and 826 of 1989 and to the harassment and disorderly conduct charges at No. 403 of 1990. In exchange for pleas of guilty to these charges, the Commonwealth agreed to nol pros the remaining charges and recommend that appellant be sentenced to serve concurrent one to two year terms of imprisonment for the two theft charges and to payment of a fine for harassment and disorderly conduct.

On April 3, 1991, a guilty plea hearing was held before the Honorable William J. Franks. During the hearing, the terms of the plea bargain and the factual bases for appellant’s pleas of guilty were recited on the record and reviewed. At the conclusion of the hearing, the following occurred:

THE COURT: All right. We’ll permit the guilty pleas at this point, but we have serious reservations on these charges, Mr. Michael, I’ll tell you right now. These are very serious offenses, especially the robbery and the house burglary. But, at this point, if the defendant wants — wishes to plead pursuant to the plea bargain, he may do so; but Mr. McFadden, we would like to have your report as soon as you can on this matter.
MR. McFADDEN [Probation Officer]: We’ll do that, Your Honor.
THE COURT: All right. Thank you very much.
MR. MICHAEL [Defense Counsel]: Thank you, Your Honor.
THE COURT: Were you privately retained, Mr. Michael?
MR. MICHAEL: Court appointed, Your Honor.
THE COURT: Court appointed in this case?
MR. KORNER [Assistant District Attorney]: Pleas have been entered, Your Honor.
THE COURT: Mr. Branch, you know that by signing those papers in handwriting, you’ve pleaded guilty to the crimes that we talked about, pursuant to the plea bargain; do you understand that?
THE WITNESS: Yes, sir.
THE COURT: All right. We’re not saying that we are going to accept the plea bargain right now. We’ll have our Probation Office going to check into these and after we have his report we’ll decide whether or not you’ll be sentenced in accordance with the plea bargains.
MR. MICHAEL: Is there a sentencing date to be set, Your Honor?
THE COURT: No, it will be set — scheduled but we’ll try to let you know prior to the sentencing date.
MR. KORNER: Thank you, Your Honor.
MR. MICHAEL: Thank you, Your Honor.

THE COURT: You’re welcome.

Subsequent to the guilty plea hearing, the trial court entered the following order:
AND NOW, this 9th day of April, 1991, it is hereby ORDERED and DIRECTED that the plea bargains in the above-entitled cases are REFUSED. It is further ORDERED and DIRECTED that the District Attorney shall place these cases on the May, 1991 Criminal Jury Trial List.

On October 4, 1991, appellant filed a motion to dismiss the prosecutions at Nos. 824 and 826 of 1989 and No. 403 of 1990. This motion was denied by the trial court on December 12, 1991, and the present appeal followed.

The appeal is properly before this Court. In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), the Supreme Court held that a defendant may file an immediate appeal from an order of the trial court denying a pre-trial motion to dismiss on double jeopardy grounds so long as the trial court has not made a written finding that such an appeal would be frivolous. In the instant case, the trial court has made no finding that an appeal would be frivolous; and, therefore, the appeal is properly before this Court.

“The constitutional prohibition of double jeopardy consists of three separate guarantees: (1) It protects against a second prosecution for the same offense after acquittal. (2) It protects against a second prosecution for the same offense after conviction. (3) It protects against multiple punishments for the same offense.” Commonwealth v. Labelle, 397 Pa.Super. 179, 189, 579 A.2d 1315, 1320 (1990) (en banc), allocatur granted, 527 Pa. 623, 592 A.2d 43 (1991), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665 (1969). See also: Grady v. Corbin, 495 U.S. 508, 516, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548, 561 (1990); Commonwealth v. Kemmerrer, 526 Pa. 160, 163 n. 4, 584 A.2d 940, 942 n. 4 (1991); Commonwealth v. Tarver, 493 Pa. 320, 324-325, 426 A.2d 569, 571 (1981); Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971).

Appellant contends that it is the second of these double jeopardy guarantees which is implicated in the instant case. Specifically, he contends that when he entered pleas of guilty on April 3, 1991 to charges contained in the three criminal informations here at issue, jeopardy attached with respect to those charges. Therefore, appellant’s argument continues, when the trial court subsequently rejected the pleas and ordered that he stand trial on all charges, the court violated his constitutional right not to be tried a second time for the same offenses.

“The entry of a plea of guilty is not only the commencement of the guilt-determining process, but is, if accepted, a final determination of guilt.” Commonwealth v. Lewis, 295 Pa.Super. 61, 65, 440 A.2d 1223, 1225 (1982) (en banc). Therefore, when a trial court accepts a defendant’s guilty plea jeopardy attaches. Commonwealth v. Arelt, 308 Pa.Super. 236, 241, 454 A.2d 108, 111 (1982); Commonwealth v. Potosnak, 289 Pa.Super. 115, 124, 432 A.2d 1078, 1082 (1981). See: 18 Pa.C.S. § 109(3); Commonwealth v. Caden, 326 Pa.Super. 192, 197, 473 A.2d 1047, 1049 (1984). See also: United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 168, 112 L.Ed.2d 133 (1990); United States v. Cruz, 709 F.2d 111, 112-114 (1st Cir.1983); United States v. Jerry, 487 F.2d 600, 606 (3d Cir.1973).

The cases from the several jurisdictions which have interpreted the double jeopardy effect of a guilty plea have been summarized in the following manner:

Generally, a valid plea of guilty to an indictment, information, or complaint, with its entry on the record, is jeopardy, which attaches when the plea is accepted. Rejecting a guilty plea after acceptance and setting the case for trial constitutes double jeopardy. Accused will be protected from a subsequent prosecution for the same charge even though the plea of guilty was not followed by judgment and sentence or judgment was suspended or the prosecution was dismissed without the consent of accused.
However, even if jeopardy attaches at the time of acceptance of the plea, it does not attach irrevocably and may be released if there is manifest necessity. Also, a tendered but unaccepted plea of guilty does not place accused in jeopardy, and an unlawful guilty plea is null and therefore does not bar a second prosecution for the same offense. Thus, if a court lacks jurisdiction to accept defendant’s plea or if the plea violates any statute, then the plea and sentence will not bar reprosecution.

22 C.J.S. Criminal Law, § 223, at pp. 271-272 (footnotes omitted). See, e.g.: United States v. Cruz, supra (double jeopardy violated where, after accepting defendant’s guilty plea, trial court subsequently rejected plea based solely on information in pre-sentence report); United States v. Hecht, 638 F.2d 651 (3d Cir.1981) (double jeopardy violated where, after accepting defendant’s guilty plea, trial court vacated the plea after erroneously concluding that there was no factual basis for the plea).

As applied to the instant case, the relevant inquiry is whether the trial court, in fact, accepted appellant’s tendered pleas of guilty at the hearing on April 3,1991. If the court accepted appellant’s pleas, jeopardy attached and, absent manifest necessity, the court could not subsequently reject the pleas and order appellant to stand trial on the same charges. However, if the court did not unconditionally accept appellant’s pleas of guilty, then jeopardy did not attach, and appellant may properly be required to stand trial on the criminal charges to which he attempted to enter pleas of guilty.

After careful review of the guilty plea proceeding which occurred on April 3, 1991, we conclude that the trial court did not unconditionally accept appellant’s pleas of guilty. Rather, because the court was concerned with the seriousness of the charges against appellant, it deferred a final decision whether to accept or reject the bargain by which appellant was to enter pleas to lesser offenses until an investigation had been made by the Probation Office and reviewed by the court. Because appellant’s guilty pleas were never unconditionally accepted by the trial court, therefore, jeopardy did not attach.

Our conclusion is aided by the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Sanchez, 609 F.2d 761 (5th Cir.1980). There, the defendant, who had been charged with distributing heroin, tendered a plea of guilty to the lesser offense of possession of heroin. The District Court stated that it would “temporarily” accept the defendant’s plea pending study of a probation report. When the court later rejected the plea, the defendant asserted that his plea of guilty to the possession charge precluded his subsequent trial for distribution of heroin. In rejecting this argument, the Court of Appeals reasoned as follows:

“The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings.” United States v. Jorn, 1971, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 553. That policy has not been offended in this case: no final judgment was entered on the lesser included offense, Sanchez has not been subjected to the harassment of successive prosecutions and there is no question of multiple trials or multiple punishments. Because the judge made it clear that she was taking the agreement under advisement, jeopardy did not attach and she acted within the bounds of her discretion in rejecting the agreement and the plea after full consideration of the case.

United States v. Sanchez, supra, 609 F.2d at 763 (emphasis added).

So too in the instant case, the trial court did not accept appellant’s guilty pleas unconditionally. Instead, the court made it clear that it had reservations about the terms of the plea agreement and would not determine finally whether it would accept guilty pleas to the lesser offenses until after the Probation Office had made an investigation and reported to the court. Because the allowance of appellant’s entry of guilty pleas did not constitute an unconditional acceptance of the guilty pleas, therefore, the trial court could subsequently reject the terms of the plea bargain and require that appellant be tried on all charges.

Order affirmed.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring.

I agree with only so much of the Opinion of my learned colleague as concludes that the most distinguished trial court, the Honorable William J. Franks, did not unconditionally accept the defendant’s pleas of guilty. This being the case, we should limit our analysis to the application of the statutory law to the facts of this case.

Judge Franks directs this court to 18 Pa.C.S. § 109 as the correct source of double jeopardy analysis in this Commonwealth. That section provides, in pertinent part:

§ 109. When prosecution barred by former prosecution for the same offense
When a prosecution for a violation of the same provisions of the statutes is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in ... a plea of guilty accepted by the court, [emphasis added].

Judge Franks succinctly summarized his reasoning as follows:

We hold that a fair reading of the above-quoted provision shows that defendant has not been convicted of any of the crimes charged. It is true defendant did enter pleas of guilty pursuant to a plea bargain; however, those pleas were not accepted in this Court. Unless the pleas are accepted, there is no conviction. 18 Pa.C.S.A. § 109(3). Because there was no prior conviction, prior acquittal, or the possibility of being subjected to multiple punishments for the same offense, jeopardy has not attached.

Opinion, Franks, J., filed December 13, 1991, page 4.

On this appeal, Leroy Branch, through his counsel, seeks to persuade this court that the basic issue to be determined is whether or not “a plea was entered.” Brief for Appellant, Summary of Argument, page 5. In the argument section of his Brief, however, Branch fails to distinguish between the “entry” of a guilty plea and its “acceptance” by the court. That distinction is crucial. I agree with Judge Franks that Branch is not in danger of being put twice in jeopardy by virtue of his tendering guilty pleas as the pleas were not accepted and, consequently, no conviction resulted.

I conclude that this appeal is controlled by the plain meaning set forth in 18 Pa.C.S. § 109(3). I also conclude that the plea in this case was tendered, but not accepted. Therefore, I would not find occasion to cite cases in this, or other jurisdictions, which consider factual circumstances involving accepted pleas. Nor would I speculate on whether acceptance of a plea to a lesser offense might carry with it an implied acquittal of a greater offense.

On this submitted appeal, I would agree with my colleagues that the order denying Branch’s motion to dismiss on double jeopardy grounds must be affirmed. I therefore concur in the result.

      . Branch also completed and signed an extensive written guilty plea colloquy in which he indicated that he was aware of and understood the rights he would be giving up by pleading guilty.

      . As a part of his plea agreement, appellant also agreed to plead guilty to robbery and conspiracy charges at No. 1037 Fayette County, 1989. These charges, however, are not at issue in the instant appeal. In fact, appellant was tried and convicted of the charges at No. 1037 of 1989 prior to his filing of the motion to dismiss the prosecutions at Nos. 824 and 826 of 1989 and No. 403 of 1990, which are the subject of the instant appeal. Although this conviction was appealed, appellant did not contend that his conviction at No. 1037 had violated principles of double jeopardy.

      . Branch also attempts to argue that the trial court erred by refusing to dismiss the charges against him on grounds that the period within which the Commonwealth was required to bring him to trial under Pa.R.Crim.P. 1100 had expired. In a pre-trial appeal pursuant to Commonwealth v. Brady, however, a defendant will not be permitted to “piggyback” non-double jeopardy issues. See: Commonwealth v. Tabb, 491 Pa. 372, 375 n. 2, 421 A.2d 183, 185 n. 2 (1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981). A trial court’s denial of a motion to dismiss pursuant to Rule 1100 is an interlocutory order and, hence, not immediately appealable. See: Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. McPherson, 368 Pa.Super. 274, 276-278, 533 A.2d 1060, 1061-1062 (1987); Commonwealth v. Bennett, 236 Pa.Super. 509, 345 A.2d 754 (1975).

      . If the guilty plea is withdrawn voluntarily by a defendant, double jeopardy will not preclude a subsequent trial. See: Commonwealth v. Ellis, 398 Pa.Super. 538, 557, 581 A.2d 595, 604 (1990) (en banc), appeal granted, 528 Pa. 636, 598 A.2d 992 (1991); Commonwealth v. Arelt, supra. See also: United States v. Jerry, supra.

      . It is questionable, in any event, whether acceptance of a plea of guilty to a lesser offense carries with it an implied acquittal of the greater offense. Therefore, it can be argued that jeopardy did not attach to any charge except the lesser offense to which the guilty plea was tendered. See: United States v. Cruz, supra at 114; Commonwealth v. Newmiller, 487 Pa. 410, 413, 409 A.2d 834, 835-836 (1979); Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) (Opinion in Support of Affirmance per Nix, J.), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980). See also: United States v. Hawes, 774 F.Supp. 965, 969 (E.D.N.C.1991) (jeopardy attaches only to those counts of indictment to which defendant pleads guilty); Commonwealth v. Potosnak, supra (same).


author: PER CURIAM:

text:
    612 A.2d 1354
    Ronald Elwood JUSTICE v. Bonita Jean JUSTICE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1992.
    Filed July 24, 1992.
    Reargument Denied Sept. 28, 1992.

      Gretchen S. Reed, Beaver, for appellant.
    Barris Siegel, Rochester, for appellee.
    Before MONTEMURO, HESTER and BROSKY JJ.
   OPINION

PER CURIAM:

This appeal concerns the trial court’s authority to vacate a final divorce decree. The sole issue raised on appeal is whether the trial court had the authority to vacate a divorce decree so as to permit appellant to assert economic claims arising from her marriage although no petition to reconsider or modify the decree was timely filed or considered.

The facts of this case are as follows: On July 28, 1986, Ronald Justice, appellee, filed a complaint in divorce, and on the same date appellant, Bonita Justice, through her previous counsel accepted service. The complaint asserted no economic claims. On March 10, 1987, with leave of the court, appellant’s counsel withdrew his appearance. On January 17, 1990, with leave of court, appellee amended his complaint, and filed an affidavit under § 201(d)(1) of the Divorce Code. Appellant was served with this amended complaint on January 26, 1990, and on the same day, appellant’s present counsel entered her appearance on behalf of appellant.

On March 20, 1990, appellee’s counsel notified appellant’s counsel of his intention to request a divorce pursuant to 23 P.S. § 201(d)(l)(i). On May 7, 1990, after appellant failed to file any responsive pleadings in this action, appellee secured entry of the decree pursuant to § 201(d)(l)(i). Since appellee’s complaint did not assert any economic claims and appellant failed to respond to the complaint, the entry of the decree effectively foreclosed appellant’s ability to make a claim for economic relief arising from the marriage. See infra 23 P.S. § 401(j). On May 16, 1990, appellant filed a petition for rule to show cause why the divorce decree should not be vacated. The trial court heard this motion on July 20,1990. On September 25,1990, the trial court issued an order vacating the divorce decree, and on October 24, 1990, the trial court granted appellee permission to take an interlocutory appeal.

On March 5,1991, this Court denied appellee’s petition for relief. Stating in a per curiam order:

The trial court found that it had the power to vacate the decree beyond the thirty days provided by 42 Pa. C.S.A. § 5505 because within the thirty-day period the court granted a rule to show cause why the decree should not be vacated, thus tolling the thirty-day period under Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982). Unless a party appeals or the court expressly grants reconsideration within thirty days of the entry of judgment, the judgment becomes final and not subject to modification for less than extraordinary cause; the granting of rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Luckenbaugh v. Shearer, 362 Pa.Super. 9, 13, 523 A.2d 399, 401 (1987) (en banc), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988); accord Valentine v. Wroten [397 Pa.Super. 526], 580 A.2d 757 (Pa.Super.Ct.1990), petition for allowance of appeal filed, No. 973 E.D. Allocatur Docket 1990 (Pa. Oct. 31, 1990) [appeal denied, 527 Pa. 650, 593 A.2d 422 (1991)]; Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989) (stating Luckenbaugh has overruled Kern, so that granting a rule to show cause is insufficient to toll the thirty-day jurisdictional period).

Justice v. Justice, No. 441 Misc. Docket (Pa.Super. March 5, 1991). In light of our per curiam order, appellee moved for the trial court to rescind its prior orders vacating the decree, and reinstate the Decree of Divorce. On July 3, 1991, the trial court granted appellee’s motion, and it is from this order of reinstatement that appellant now appeals.

Appellant concedes that a petition to open or vacate the divorce decree was not timely filed and considered within the 30 day period provided in 42 Pa.C.S.A. § 5505. Furthermore, appellant’s counsel concedes that the reason the economic claims were not presented in a timely manner was due to counsel’s inadvertence. Appellant nonetheless asserts that economic justice requires us to remand the case so that she can present her economic claims. After a review of the case law interpreting the Divorce Code, we are constrained to disagree with appellant and affirm the order of the trial court.

Once the divorce decree became final, appellant lost her right to raise any economic claims arising from the marriage. As the Divorce Code makes clear:

Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those rights which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b) or (b.l). All duties, rights, and claims accruing to either of said parties at any time heretofore in pursuance of the said marriage, shall cease and the parties shall, severally, be at liberty to marry again in like manner as if they had never married, except where otherwise provided by law.

23 P.S. 401(j); See Bastion v. Bastion, 324 Pa.Super. 569, 472 A.2d 226 (1984).

Thus, a divorce decree must be either vacated or opened in order for the trial court to consider appellant’s economic claims. The trial court has the inherent power to modify, rescind, or reconsider an order within 30 days of its entry for any reason based on the suggestion that equity has not been served. 42 Pa.C.S.A. § 5505. “The court’s exercise of its power under § 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte, or may be invoked by a request for reconsideration filed by the parties, and the court’s decision to decline to exercise such power will not be reviewed on appeal.” See Anderson v. Anderson, 375 Pa.Super. 341, 544 A.2d 501 (1988) (court rescinded divorce decree six days after its entry where spouse failed to file any responsive pleadings due to her indigence and her counsel’s recent appointment).

The trial court’s broad discretion is lost, however, if the court fails to act within 30 days. After this 30 day period, an order can only be opened or vacated if there is fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.” Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335, 337 (1986) quoting Klugman v. Gimbel Brothers, Inc. 198 Pa.Super. 268, 272, 182 A.2d 223, 225 (1962). “An oversight by counsel in failing to appeal does not constitute “extraordinary cause” which permits a trial court to grant relief from a final judgment entered in a contested action.” Simpson supra, 350 Pa.Super. at 245, 504 A.2d at 338.

In the present case, it is undisputed that the trial court did not reconsider the entry of the divorce decree within 30 days of its entry. Furthermore, appellant does not claim any extraordinary cause. Therefore, as we stated in our March 5,1991 order, the trial court lacked authority to open or vacate its divorce decree under 42 Pa.G.S.A. § 5505.

In addition to the trial court’s inherent authority to rescind, modify, or reconsider its orders, the legislature has also provided trial courts with additional equity powers in divorce proceedings:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or connected with the disposition of the cause.

23 P.S. § 401(c). One of the purposes of the Divorce Code is to “effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6).

The equitable powers of the court are not without limits. The circumstances under which a court may exercise its discretionary power to open or vacate a decree are delineated in § 602. Section 602 provides:

§ 602. Opening or vacating divorce decrees
A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within 5 years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequences of precluding a fair hearing or presentation of one side of the case.

Thus, “section 602 sets out clear evidentiary requirements which must be met by the parties before the court may exercise its authority to open, vacate, or strike a divorce decree, and the court’s exercise or refusal to exercise its authority under that section is reviewable on appeal.” Anderson supra, 375 Pa.Superior Ct. at 348, 544 A.2d at 505 “The intent of § 602 was thus to codify the extraordinary circumstances which will outweigh the interests of the parties and the court in finality, and delimit the time periods which within such circumstances must be established.” Id.

In accordance with § 602, the only basis for vacating a decree within 30 days is intrinsic fraud. Beyond the 30 day limitation period a party must show extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent from the record. In McEvoy v. Quaker City Cab, 267 Pa. 527, 110 A. 366 (1920), our Supreme Court first distinguished intrinsic fraud from extrinsic fraud.

By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise or compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970 (1891)]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed up, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462 [89 P. 906 (1907)].

Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 243, 502 A.2d 185, 188 (1985) quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920).

Thus, the Divorce Code makes clear that beyond 30 days, a decree cannot be vacated absent fraud which is collateral to the proceedings. Naturally, when assessing whether the movant has proven the existence of extrinsic fraud, this Court focuses on the actions taken by the prevailing party.

For example, in Fenstermaker, counsel for the parties attempted to resolve the marital property issues prior to the entry of the divorce decree. While the parties were in the process of negotiating a property settlement, appellee filed and was granted a divorce pursuant to § 201(d). Relying on appellee’s intention to finalize their property settlement, appellant did not appeal the decree. The trial court found that the representations made by counsel amounted to extrinsic fraud. This court affirmed the trial court’s finding of extrinsic fraud stating, “[i]n light of the continued representations to appellee evidencing his ‘intention’ to finalize their property settlement, the court did not err in finding extrinsic fraud upon which a petition to vacate the decree could be granted. Appellee did not have the opportunity to litigate these economic claims.” Fenstermaker, 348 Pa.Super. at 248, 502 A.2d at 190.

In Foley v. Foley, 392 Pa.Super. 9, 572 A.2d 6 (1990), an unrepresented wife entered into a property settlement agreement which purported to settle all of the economic claims arising from the marriage. In accordance with this agreement, she received $1,500 and her husband received $200,000. Approximately fifteen months after the entry of the final divorce decree, wife filed a motion to vacate the decree alleging that she was intimidated into entering into the property settlement. The trial court granted the wife’s motion because, “the actions of appellant did intimidate appellee to the extent that she was fearful of undertaking any effort to secure the economic justice to which she was entitled, and concluded that because she was thereby denied an opportunity for a fair trial, [the wife] had established the existence of extrinsic fraud.” Id., 392 Pa.Superior Ct. at 14-15, 572 A.2d at 9

The husband appealed claiming, inter alia, that the wife “failed to establish that appellant engaged in extrinsic fraud which is a condition precedent to vacating a divorce decree.” Id., 392 Pa.Superior Ct. at 11, 572 A.2d at 7. Specifically, the husband/appellant claimed that the trial court erred in finding that intimidation amounts to extrinsic fraud. After a review of the record, this court found that there was an ample factual basis to support the trial court’s finding of intimidation. Furthermore, since this intimidation prevented the wife from asserting her economic claims, the Foley court determined that extrinsic fraud encompasses the husband’s activity.

Judge Popovich, in dissent, acknowledged that duress constitutes extrinsic fraud; however, found that the wife failed to demonstrate that “appellant’s actions prevented her from coming forward with her [economic claims].” Id., 392 Pa.Superior Ct. at 19, 572 A.2d at 10. Thus, Foley stands for the proposition that the definition of extrinsic fraud extends to the situation where one party coerces another into relinquishing their economic claims arising from the marriage.

In Ratarsky v. Ratarsky, 383 Pa.Super 445, 557 A.2d 23 (1989), this court again had occasion to determine if a divorce decree should be vacated because of extrinsic fraud. In Ratarsky, appellee contended that appellant committed extrinsic fraud by concealing the value of a marital asset. This court held that even assuming appellant concealed the value, his action did not amount to extrinsic fraud. The court found that the property settlement was entered into after extensive negotiations, and that trial counsel had an opportunity to assess the value of the assets and simply failed to do so. After discussing the necessity that appellee prove extrinsic fraud, the court found that, “[c]ertainly, the appellee’s trial counsel’s performance cannot be imputed to the appellant and labeled as fraud.” Id., 383 Pa.Superior Ct. at 452, 557 A.2d at 26. See also Holteen v. Holteen, 413 Pa.Super. 591, 605 A.2d 1275 (1992) (mistake regarding value of marital residence does not provide a basis for opening or vacating a decree after 30 days of its entry).

The present facts are readily distinguishable from Fenstermaker and Foley, or any other authority finding extrinsic fraud, because appellant does not assert any wrongful conduct or actions taken by appellee. Without such conduct, the trial court does not have authority to vacate a final decree. While § 602 distinguishes between extrinsic and intrinsic fraud, it still requires fraud. Although it is true that counsel's inadvertence was extrinsic or collateral to the divorce proceedings, it was not fraud. See Ratarsky supra. While the trial courts have equitable powers in divorce proceedings, they do not extend to ignoring the limited circumstances set forth in § 602 in which a final divorce decree can be vacated. Thus, we are constrained to find that appellant has failed to meet her burden of proving extrinsic fraud, or otherwise state a valid basis for which the divorce decree can be vacated.

Order affirmed.

      . § 201. Grounds for divorce
      (d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
      (i) the respondent does not deny the allegations set forth in the affidavit.
      This section is now 23 Pa.C.S.A. § 3301(d)(l)(i).

      . This séction is now 23 Pa.C.S.A. § 3503.

      . This Court, on March 27, 1991, again issued an order denying appellee’s appeal.

      . Section 5505 provides:
      Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

      . This section is now 23 Pa.C.S.A. § 3503.

      . Appellant also argues in her brief that in accordance with Pa.R.C.P. 126, we should liberally construe § 5505 in order to effectuate economic justice. This argument is without merit. A rule of procedure can not be used to extend a limitation period set forth in the Judicial Code in the name of liberal construction. As we instructed the parties in this case on March 5, 1991, absent extraordinary cause, neither this court nor the trial court have discretion to ignore the limitations set forth in the Judicial Code. See, Anderson v. Anderson, 375 Pa.Super. 341, 544 A.2d 501 (1988); Smith v. J.C. Giuffre Medical Center, 366 Pa.Super. 321, 531 A.2d 438 (1987).

      . This section is now 23 Pa.C.S.A. § 3332.

      . The type of conduct displayed by the husband is illustrated in Judge Popovich’s dissent:
      Appellee testified appellant "ordered" her not to see an attorney. She contends appellant would make statements to the effect that "people in his state of mind have murdered their family. They’ve shot their wives.” She stated appellant threatened to "tell a lot of my personal business ... [to] people I didn’t want to know, especially my children." Appellee testified that on one occasion, appellant "hit [her] with an open hand." Appellee also alleged that appellant ran her off the road while she was driving her car, an that he wrote a biblical message concerning adultery on her bathroom mirror. In addition, after the date of separation, appellant, on several occasions, stayed at the marital residence over appellee’s objection.
        Foley, supra, 392 Pa.Superior Ct. at 19, 572 A.2d at 11-12 (citations omitted).

      . This panel is aware that a panel of this court in Hilliard v. Hilliard, — Pa.Super.-, 606 A.2d 1235 (1991) has defined extrinsic fraud so as to include negligence by one’s own counsel. After a careful review of this Memorandum decision, we have respectfully declined to adopt the result reached by that panel. K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981) (Memorandum opinions of the Superior Court carry no precedential weight).