text:
    452 A.2d 1
    Michael TANKLE, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and United States of America, Intervenor.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Sept. 10, 1982.
    Reargument Denied Nov. 19, 1982.

      Edward F. Chacker, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for Prudential, appellee.
    Freddi Lipstein, Washington, D.C., for participating party.
    Before CERCONE, P.J., WICKERSHAM and VAN der VOORT, JJ.
   WICKERSHAM, Judge:

The issues in this appeal involve the application of the Pennsylvania No-fault Motor Vehicle Insurance Act to a person on active duty in the United States military service. The United States has also intervened in this appeal in order to assert its interests as the provider of appellant, Michael Tankle’s, medical care.

The facts in this case may be summarized as follows. Michael Tankle sustained serious injuries in an automobile accident which occurred in Pennsylvania on August 5, 1975. At the time of the accident, Tankle was on active duty in the United States Navy, and he had a no-fault motor vehicle insurance policy issued by Prudential Property and Casualty Insurance Company (hereinafter Prudential). Tankle’s medical expenses resulting from the accident totalled $23,-483.55. In addition, Tankle’s wages and allowances during the period which he was unable to serve due to his medical treatment and recuperation amounted to $16,948.75. The United States assumed all of Tankle’s medical expenses and paid Tankle his wages and allowances during the period which he was unable to serve.

Tankle submitted a claim to Prudential for no-fault benefits. Prudential refused to pay Tankle’s claim, and Tankle filed a complaint in assumpsit against Prudential on October 5, 1977. After the pleadings were closed, both Tankle and Prudential filed motions for summary judgment. On November 8, 1979, the lower court entered an order sustaining Prudential’s motion for summary judgment and denying Tankle’s motion for summary judgment. This appeal followed.

In his complaint against Prudential, Tankle sought judgment for his medical expenses and for his wages and allowances for the period during which he was unable to serve. The lower court determined that Tankle was not entitled to judgment on either ground. The court below reasoned that because Tankle received free medical care as well as wages during the period of his disability he suffered no “net loss” as defined by the No-fault Act in section 206. The statute provides:

(a) General.—Except as provided in section 108(a)(3) of this act, all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act and except those medicare benefits to which, a person’s entitlement depends upon use of his so-called ‘life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because- of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.

40 P.S. § 1009.206(a) (footnotes omitted).

The Commonwealth Court decided an analogous case in Erie Insurance Exchange v. Sheppard, 39 Pa.Commw. 30, 394 A.2d 1075 (1978). In Erie Insurance Exchange a civilian government employee sought recovery of sick pay as here Tankle seeks recovery of wages. The Commonwealth Court held that sick pay given to a government employee was not deductible under section 206(a) of the Act. In reaching this result the court held that the words “all other benefits . .. from any government” take their meaning from and are restricted by the enumerated benefits such as social security, workmen’s compensation and temporary disability insurance. Sick pay was distinguished from the listed benefits by its exhaustability: social security is a lifetime benefit, while sick pay will run out.

The distinction between exhaustible and lifetime benefits was critical to the Third Circuit’s decision in Heusle v. National Mutual Insurance Company, 628 F.2d 833 (3d Cir.1980). The plaintiff in Heusle was on active duty with the Ú.S. Coast Guard when she was injured in-an-automobile accident. Heusle sued to recover her medical expenses, most of which were paid by the government. The district court denied Heusle’s claim on the ground that payment of medical expenses is a benefit deductible under section 206(a). The court of appeals affirmed, noting that the payment of medical expenses was an inexhaustible benefit. Erie Insurance Exchange was distinguished because the sick pay benefits were exhaustible.

The rationale of both Erie Insurance Exchange and Heusle is that inexhaustible benefits such as payment of medical expenses are deductible under section 206(a) while exhaustible benefits such as sick pay are not. Following this rationale we hold that Tankle cannot recover his medical expenses which were paid by the government. Tankle could have had medical bills paid without limit and this benefit should be deducted from the loss Tankle suffered. See Heusle, supra. The trial court correctly granted summary judgment against Tankle on this issue.

Yet Tankle may have suffered a work loss. He contends, without citing supporting authority, that the wages he received while disabled will be subtracted from his retirement pay. If this is true, the wages are not an inexhaustible benefit deductible under section 206(a) of the No-fault Act. Summary judgment against Tankle on the work loss issue was incorrectly granted.

Tankle also argues that the two year statute of limitations of the Act does not bar his action even though suit was filed more than two years from the date of the accident. The No-fault Act places varying time limitations on actions to recover benefits in section 106(c). Section 106(c)(1) provides:

(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

40 P.S. § 1009.106(c)(1) (emphasis added).

In this case, Tankle has not received no-fault benefits for his alleged loss, which certainly arose otherwise than from death. It is clear, therefore, that he could commence an action within two years after he knew or should have known that the loss was caused by the accident, but in no event could he sue more than four years after the accident. Id.

A recent case, Myers v. USAA Casualty Insurance Company, 298 Pa.Super. 366, 444 A.2d 1217 (1982), discussed the meaning of “loss” in the context of section 106(c)(1). In Myers the court said: “We believe that ‘loss’ as that term is defined in the No-Fault Act must be equated with the common law concept of breach of contract because until such breach occurs, the claimant does not know that he has incurred any economic detriment.” Id. 298 at 374, 444 A.2d at 1221. Here, Tankle alleges that Prudential refused to pay his claim on June 21, 1977. Under the Myers rule Tankle then had two years from that date to start suit. Tankle filed his complaint on October 5, 1977, well within two years from June 21, 1977.

The United States intervened in this appeal and argues that it should be entitled to recover from Prudential the medical expenses that it paid on Michael Tankle’s behalf. We believe that the issues raised by the United States were fully considered and correctly decided by the United States Court of Appeals for the Third Circuit in Heusle v. National Mutual Insurance Company, supra. In Heusle the court held that the United States had no basis in federal law or the No-fault Act itself for recovery of medical expenses paid on behalf of a member of the armed forces. Id. at 836-39. Further discussion by our court is not warranted.

Order granting summary judgment against Tankle as to recovery of medical expenses is affirmed; order granting summary judgment against Tankle as to recovery of work loss is reversed. The case is remanded for proceedings consistent with this opinion.

Order affirmed in part and reversed in part.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . The motion for summary judgment filed by Michael Tankle was limited to the issue of liability. Prudential framed its request for summary judgment as follows:
      (1) The plaintiff has not sustained a ‘net loss’ for medical care which has been paid by the United States Government within the meaning of Section 206 of the Pennsylvania No-Fault Motor Vehicle Insurance Act, and defendant is not obliged therefore to make a second payment of said medical expenses to the plaintiff.
      (2) The plaintiff has not sustained a ‘net loss’ for periods of disability where his salary as a member of the United States Navy has contained within the meaning of Section 206 of the Pennsylvania No-Fault Motor Vehicle Insurance Act, and defendant is not obliged therefore to make a second payment of said salary to the plaintiff.

        (3) If the court should determine that points one and two should be resolved in favor of the plaintiff then partial Summary Judgment should be granted in favor of the Defendant and against the plaintiff for all benefits under the Pennsylvania No-Fault Motorist Insurance Act claimed as incurred, or owing, in periods prior to the two year period which elapsed prior to the institution of suit.

      . Two recent decisions of this court are distinguishable because both involve application of different portions of section 106(c). In Sa-chritz v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa.Super. 483, 439 A.2d 678 (1981) the court was called upon to interpret the following portion of § 106(c)(1): “If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits ... may be commenced not later than two years after the last payment of benefits.” 40 P.S. § 1009.106(c)(1). Because the claimant in Sachritz had been paid some work loss benefits, she could not bring a suit for post-mor-tem work loss benefits more them two years from receipt of the last benefit payment. Sachritz, supra, 293 Pa.Superior Ct. at 485, 439 A.2d at 679. In Tankle’s case, no-fault benefits have not been paid; therefore, the portion of § 106(c)(1) discussed in Sachritz is not applicable here.
      Nor is Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 301 Pa.Super. 146, 447 A.2d 284 (1982), dispositive of the case before us. In Guitón the insurer argued that § 106(c)(2), which provides: “If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits ... may be commenced not later than two years after the last payment of benefits.”, barred a survivor’s action for work loss benefits when the survivor had received survivor’s benefíts more than two years before suing for work loss benefits. The court held that § 106(c)(2), which governs suits for further survivor’s benefits cannot preclude a suit for work loss benefits. Tankle survived the accident therefore no survivors benefits were paid; accordingly, the portion of § 106(c)(2) considered in Guitón is inapplicable here.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    452 A.2d 4
    GORDON WAHLS COMPANY v. Roger W. LINDE, Christopher W. Kellogg, and Graphic Search Associates, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1982.
    Filed Oct. 22, 1982.

      Edward C. German, Philadelphia, for appellants.
    Jerrold Moss, Media, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   SPAETH, Judge:

This is an appeal from an order upholding the validity of a covenant not to compete and granting an injunction. Appellants argue (1) that the covenant is unenforceable because it was not supported by consideration; (2) that appellee, as appellant’s employer, has no “protectible” interest that enforcing the covenant would uphold; and (3) that the injunction is overbroad. The first two arguments are without merit, but we believe that the injunction is overbroad and therefore remand for further proceedings.

-1-

Appellee, Gordon Wahls Company, is an employment agency specializing in finding executives for companies in the printing industry. Appellants are former employers of Wahls. Appellant Roger W. Linde went to work for Wahls in May 1970, and appellant Christopher W. Kellogg, in October 1975. In February 1982 they left Wahls and set up a competitive business of their own, appellant Graphic Search Associates.

During his employment with Wahls, Linde signed three employment agreements. The third agreement was signed April 18, 1973, and is the agreement that Wahls seeks to enforce. It contains a covenant that for one year after Linde’s employment with Wahls ends, Linde will not compete with Wahls in twenty one specified states and the District of Columbia. The covenants in the two earlier agreements had no express geographical limit. The third agreement also increased Linde’s commission, and provided disability benefits. The increase in Linde’s commission was announced before the agreement was executed, specifically, on April 2, 1973.

The agreement that Wahls seeks to enforce against Kellogg was signed January 14, 1976. It contains the same convenant as the Linde agreement. It also provided that effective January 2, 1976, Kellogg’s compensation was converted from a salary—to a commission—basis, required thirty days’ notice of termination, and provided long-term disability benefits.

Appellants’ argument that their covenants were not supported by consideration is that the April 2, 1973, announcement of Linde’s commission increase, and the January 2, 1976, effective date of Kellogg’s going onto commissions, created preexisting obligations. If, appellants reason, Wahls was already obliged to increase their compensation, before the agreements were signed, their promises in those agreements not to compete were not induced by any undertaking that constituted a detriment to Wahls, and, therefore, were not supported by consideration.

This argument is without merit, for two of its predicates are unfulfilled.

First, appellants did not establish that before the agreements were signed, Wahls in fact incurred binding obligations to increase their compensation. The fact that Linde’s increased commission was announced before he signed his agreement was not enough to show a binding obligation. Neither was the fact that Kellogg’s agreement provided that the effective date of his increased compensation was a date prior to the date of the agreement itself.

Second, even if appellants had established that Wahls had incurred prior binding obligations to increase their compensation, their reliance on the preexisting duty rule to defeat the enforceability of the restrictive covenants would be misplaced. As the lower court found, each agreement represented “fresh” consideration, apart from the increase in compensation. Linde’s prior restrictive covenant was reduced in scope; Kellogg became entitled to thirty days’ notice of termination; and both men were provided disability benefits.

-2-

Appellant’s argument that Wahls has no “protectible” interest that enforcing the covenant would uphold is also without merit. Appellants do not dispute that they were employed by Wahls as “search consultants,” and that as such, they dealt directly with Wahls’s clients. Persons who deal successfully with their employer’s clients may help develop good will, and the employer’s interest in preserving that good will is sufficient to justify the enforcement of a covenant not to compete. John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976).

-3-

Appellants argue that the injunction issued by the lower court is overbroad by reason of the underscored language:

ORDERED . . . that Defendants . . . are hereby enjoined from placing, or attempting to place, candidates for employment with any company and from attempting to find employees for any company, (a) if either Defendant Linde or Kellogg received a job order from, or made a referral to, such company while employed bv Plaintiff .... (Emphasis added.)

This argument is in three parts.

First, appellants say that the injunction prohibits them from doing business with a company with which Linde last had contact twelve years ago. We read the injunction the same way. Linde was employed by Wahls for twelve years, and the injunction prohibits appellants from doing business with a company from which a job order was received “while [either appellant was] employed by” Wahls. Appellants argue that this is top broad a prohibition. We believe that this argument has some force. The purpose of the restrictive covenant that the injunction enforces is to prevent appellants from exploiting the good will they developed as a result of their personal contacts with Wahls’s clients. These contacts may no longer have any vitality. For if they were made a good many years ago, as to some of the clients at least, the persons with whom they were made may no longer be working, with the result that appellants may not be known to the clients, and therefore may not be in a position to take advantage of their past contact with the clients.

Appellants next object to the injunction’s prohibition that they do business with any company to which either of them “made a referral.” Again, we believe that appellants’ argument has some force. The injunction does not include a definition of “referral.” It might be understood as including an unsolicited mailing to a company. But if there was no response to the mailing, it seems unlikely that appellants could as a result of it have developed any good will. Especially is this so if the mailing was as long as twelve years ago. To prohibit appellants now from doing business with a company that received such a mailing would serve to punish appellants rather than to protect any legitimate interest of Wahls.

If an unsolicited mailing did produce a response, the situation would be different, for then, as a result of subsequent dealings, some good will might have developed, which appellants may fairly be prohibited from exploiting.

Appellant’s final argument is that the injunction is overbroad because it prohibits them from doing business with any company for which either of them attempted but failed to find an executive. This argument has no merit. Good will may be developed from an attempt, even if it proves unsuccessful.

We shall not ourselves try to modify the injunction. In the first place, the parties may themselves be able, in light of this opinion, to agree upon a modification. If that is not possible, the lower court should conduct a further hearing. On the record as it stands, we cannot say how the injunction should be modified, for we do not know how realistic are the dangers, pointed out by appellants, of overbroad prohibition.

The decision of the lower court is affirmed except that the case is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


author: CAVANAUGH, Judge:

text:
    452 A.2d 7
    COMMONWEALTH of Pennsylvania, v. Richard J. CORISH, Jr., Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Richard J. CORISH, Jr.
    Superior Court of Pennsylvania.
    Submitted May 11, 1982.
    Filed Oct. 22, 1982.

      Timothy John O’Connell, Harrisburg, for Corish, appellant (at No. 92) and appellee (at No. 112).
    Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellant (at No. 112) and appellee (at No. 92).
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This case involves cross-appeals taken from an order denying appellant Richard Corish’s motion to quash an information but granting his motion to suppress the results of a blood test. We now reverse that portion of the order which denies the motion to quash and dismiss the Commonwealth’s appeal concerning the suppression of evidence as moot.

On June 25,1979, appellant was involved in an automobile accident which resulted in the death of a passenger riding in the vehicle which appellant was operating. Police Officer Brian'Greenway was called to the scene to investigate the accident. Appellant, who was in a semi-conscious state, was transported to a hospital, where blood was withdrawn by the emergency room physician at the request of Officer Green-way. Officer Greenway had received the results of the blood test and had completed his investigation of the accident by July 3, 1979. On that date, after conferring with a member of the district attorney’s staff, he filed a summary citation for reckless driving against appellant. He intended to file charges of operating under the influence, homicide by vehicle, and involuntary manslaughter but he failed to do so at that time because the District Justice was out of town.

On July 16, 1979, appellant pled guilty to the reckless driving charge and paid a fine and costs. On July 17, 1979, Officer Greenway first swore out warrants for appellant’s arrest on the charges of operating under the influence, homicide by vehicle, and involuntary manslaughter. Appellant filed a pre-trial motion to quash the information, alleging that prosecution on these charges would violate the decision in Commonwealth v. Campana, and the provisions of 18 Pa.C.S.A. § 110.

Campana and 18 Pa.C.S.A. § 110 require that all charges arising out of a single criminal episode, even where the episode gives rise to both summary and indictable offenses, must be brought in a single proceeding. The court below denied appellant’s motion to quash because “none of the evils that Section 110 were designed to eliminate are present in the instant Case.” Lower court opinion at 4. Our disposition, however, is controlled by this court’s holding in Commonwealth v. Breitegan, 276 Pa.Super. 181, 419 A.2d 155 (1980). In Breitegan, we reversed an order which denied a motion to quash an information charging a defendant with misdemeanors arising out of a fatal accident where the complaints on which the information was predicated had been filed after appellant had entered pleas of guilty to three summary offenses arising out of the same accident. We held that Campana and Section 110 barred prosecution of the misdemeanor offenses. That decision is clearly dis-positive of the instant appeal.

Our holding that appellant can not be prosecuted on the charges involved in this appeal renders moot the Commonwealth’s cross-appeal from that portion of the lower court’s order suppressing evidence relating to the blood test performed on appellant.

The order denying the motion to quash is reversed and the information is quashed. The Commonwealth’s appeal is dismissed as moot.

      . 452 Pa. 233, 304 A.2d 432 (1973); vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).


author: McEWEN, Judge:

text:
    452 A.2d 9
    COMMONWEALTH of Pennsylvania v. Thomas WARNER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed Oct. 22, 1982.

      Mitchell Scott Strutin, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

We here review an appeal from the judgment of sentence imposed after appellant pleaded guilty to rape, robbery, involuntary deviate sexual intercourse and burglary and was sentenced to terms of imprisonment totaling of from fourteen to thirty years. We affirm.

The statement of facts provided by the Commonwealth at the guilty plea proceeding indicates that the eighteen-year-old appellant entered the home of the fifty-year-old complainant without her consent where, after a struggle, she became the victim of acts of robbery, rape and deviate sexual intercourse by the rectum; as a result, she suffered a cut lip, a head lump, a bruised right eye and hip, a gashed, swollen and bruised left leg and soreness of the neck, uterus and uterus lining which required hospital treatment and has resulted in a lasting eye condition. When the police attempted to arrest appellant within an hour of the attack, appellant fled the police, was wounded when struck by a shot fired by a pursuing policeman and, shortly after his apprehension and subsequent to the required warnings, told an investigating detective “that he was sorry for what he had done, and wished that he had died.”

Appellant subsequently pleaded guilty and was sentenced to terms of a total of from fourteen to thirty years. Twenty-one days after the sentence was imposed, appellant filed a pro se appeal from the judgment of sentence. He had not, however, prior to that time filed any motion to modify sentence or motion to withdraw his guilty plea.

The brief of appellant sets forth the following assertions:

I. Appellant is entitled to a vacation of sentence and a remand to the lower court since he was not informed of the consequences of failing to file a petition to withdraw guilty plea pursuant to the Pennsylvania Rules of Criminal Procedure.
II. The lower court erred in accepting appellant’s guilty plea which was not knowingly and intelligently entered since he did not fully comprehend the elements of the crime of robbery.
III. The lower court erred in imposing an illegal' sentence.

The initial assertion of appellant requires an examination of Pennsylvania Rules of Criminal Procedure 321 and 1405(c) which provide:

Rule 321. Challenge to Guilty Plea
(a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.
* * * * * *
Rule 1405. Sentencing Proceeding
At the time of sentencing, the judge shall:
* *is * * * *
(c) Advise the defendant on the record:
(1) of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided free counsel;
(2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);
(3) of the ten (10) day time limit within which such motions must be filed;
(4) that the defendant is entitled to be represented by counsel in preparing and litigating such motions; and
(5) that only claims raised in this court may be raised on appeal[.]

It is well established that the failure of an appellant to comply with the foregoing procedure, by neglecting to first petition the lower court to withdraw the guilty plea, constitutes an automatic waiver of the right to challenge the voluntariness of the plea on direct appeal. Commonwealth v. Smith, 248 Pa.Super. 392, 375 A.2d 154 (1977). It is just as clear that a petitioner shall not be deemed to have waived this right to question the validity of a guilty plea on direct appeal unless the record demonstrates that appellant had been apprised by the lower court or his counsel of the right to petition to withdraw his guilty plea, of the right to the assistance of counsel in filing such a petition and of the consequences of not filing such a petition. Commonwealth v. Brandon, 485 Pa. 215, 401 A.2d 735 (1979); Commonwealth v. Crawford, 285 Pa.Super. 169, 427 A.2d 166 (1981); Commonwealth v. Arndt, 269 Pa.Super. 578, 410 A.2d 852 (1979); Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978); McCusker v. Commonwealth, 485 Pa. 313, 402 A.2d 500 (1977).

The Common Pleas Court informed appellant of his appellate rights in the following portion of the guilty plea colloquy (N.T. pp. 23-25):

BY THE COURT:
Q. However, Mr. Warner, you have indicated it is your intention to plead guilty, which means that no trial would take place. All that is going to happen is that the assistant district attorney is going to read a summary of the police report. So, you see, basically, no mistakes can be made because, in effect, there won’t be any trial. So that our appellate rights to appeal are limited to three issues.
Let me explain to you what those are. The first issue you could appeal is whether or not this Court has jurisdiction to hear your case. Now, jurisdiction is nothing more than another way of saying or asking does Judge DiBona have the power or the authority to hear this case. I assure you that I am a judge of the Court of Common Pleas. Further, if the facts of this case took place in Philadelphia, I do have the authority to hear this case. So that your right to appeal the question of jurisdiction is very limited; do you understand that?
A. Yes, Your Honor.
Q. Another right you may appeal is whether or not the Court imposes an illegal sentence. Now, I have explained the sentences to you, and if I were to go beyond the limits that I have explained to you, that would be an illegal sentence. Now, when you do come back to me at some future time for sentencing, your attorney will be here, the assistant district attorney will be present. So, they sort of act as a check upon me to be sure that I do not impose an illegal sentence. So that right is also very limited; do you understand that?.
A. Yes, Your Honor.
Q. The third right that you may appeal is whether or not your plea of guilty is voluntary. In other words, is the plea that you are entering in this case of your own free will, after having been advised of all your Constitutional Rights.
So, these are the three issues, Mr. Warner, that you can appeal after you enter a guilty plea; do you understand that?
A. Yes, Your Honor.
Q. I want to point out that before you can file an appeal on any of these three issues, you must first file with the Court a petition to withdraw your guilty plea; do you understand that?
A. Yes, Your Honor.

The sentencing judge made the following statements to appellant at the time that sentence was imposed (N.T. pp. 15-16):

THE COURT: Mr. Warner, at the time you entered your guilty plea, we explained your appellate rights. However, before you can file an appeal, you must first file with the Court a petition to withdraw the guilty plea. You also have 10 days to file a petition to have me reconsider the sentence I have just entered. If you can’t afford an attorney for any of the purposes that I have mentioned, the Court will appoint one to represent you.
Do you have any questions?
MR. WARNER: No, Your Honor.

Appellant here asserts “the record in the instant case is devoid of warnings to appellant of the consequences of his failure to file a petition to withdraw his guilty plea or appeal prior to challenging its validity, . . . ”. This contention would appear to overlook the following statements of the court to appellant:

Q. I want to point out that before you can file an appeal on any of these three issues, you must first file with the court a petition to withdraw your guilty plea; do you understand that?
A. Yes, your honor. (Page 25 of transcript of Guilty Plea Hearing conducted on 12/13/79).
Q.....However, before you can file an appeal, you must first file with the court a petition to withdraw the guilty plea..... Do you have any questions Mr. Martin?
A. No, your honor. (Transcript of Sentencing Hearing conducted on 2/27/80).

Appellant fervently argues that the decision of this court in Commonwealth v. White, 277 Pa.Super. 109, 419 A.2d 685 (1980), aff’d, on other grounds, 295 Pa.Super. 13, 440 A.2d 1198 (1982) requires this court to remand the case so as to enable appellant to file a nunc pro tunc petition to withdraw his guilty plea. As appellant notes in his brief “nowhere in the record in White did the sentencing court or counsel advise appellant that he could not attack the validity of his plea on appeal unless he petitioned to withdraw the pleas”; in addition, the sentencing court in White did not make clear that the court would appoint counsel to assist appellant in connection with the petition to withdraw the guilty plea. However, as the foregoing excerpts from the record indicate, the sentencing judge here did not commit either omission.

We are compelled to the conclusion that appellant was apprised of the consequences of failing to file a petition to withdraw his guilty plea and, therefore, that he intelligently and knowingly waived that right by a failure to undertake such an effort within ten days of the imposition of sentence.

While the other assertions of appellant become moot as the result of our decision that appellant has waived his right to direct appeal, our study of the case leads us to conclude that, in any event, there was no merit to either of the remaining claims of error.

A scrutiny of the transcript of the hearing at which appellant entered his guilty plea shows the careful inquiry conducted by the court to be certain that the conduct of the defendant constituted robbery and that the defendant understood the basis for and nature of the charge.

Nor do we accept the assertion that the imposition of separate and consecutive sentences for the crime of rape and the crime of involuntary deviate sexual intercourse was illegal. The record clearly reflects that appellant attempted by force to enter both the rectum as well as the vagina of the victim. These are separate, distinct acts which, under Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1981) are separate, distinct charges for which separate sentences may be imposed. See also, Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982).

Judgment of sentence affirmed.


author: POPOVICH, Judge:

text:
    452 A.2d 13
    COMMONWEALTH of Pennsylvania, Appellant, v. Albert E. LEWIS, III. COMMONWEALTH of Pennsylvania v. Albert E. LEWIS, III, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1982.
    Filed Oct. 22, 1982.
    Petition for Allowance of Appeal Denied Feb. 23, 1983.

      Leonard J. Frawley, Assistant District Attorney, Towan-da, for Commonwealth.
    David B. Keeffe, Sayre, for Lewis.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

On August 25, 1980, appellee, Albert E. Lewis, III, was arrested and charged with four counts of corrupt organizations (18 Pa.C.S.A. § 911(b)(1), (2), (3), and (4)), 113 counts of commercial bribery and breach of duty to act disinterestedly (18 Pa.C.S.A. § 4108(c)) and 113 counts of tampering witTr records or identification (18 Pa.C.S.A. § 4104). Similar charges were also brought against one George Ardrey, an employee of North American Car Corporation, who had allegedly awarded his company’s contracts to Lewis in return for kickbacks from the income that a trucking company owned by Lewis would earn from those contracts. Mr. Ardrey was tried and acquitted of all charges. Thereafter, appellee filed a pretrial motion to dismiss the charges against him on grounds of collateral estoppel. Following a hearing on the motion to dismiss, the lower court granted appellee’s motion and issued an order on May 4, 1981, dismissing all of the aforesaid counts. The Commonwealth filed a timely appeal to this court. We reverse.

The illegal payments alleged to have been made by Mr. Lewis to Mr. Ardrey are identical in days and dates to those charges for which Mr. Ardrey was tried and acquitted in March, 1981. Mr. Ardrey had not been charged with tampering with records or identification. However, a conviction of appellee on these counts would also depend on the existence or non-existence of the alleged bribery scheme.

Appellee contends that, because of Mr. Ardrey’s acquittal, the Commonwealth is precluded from re-litigating the factual issue of whether or not the bribery scheme existed and whether or not payments were made since those same issues were adversely determined against the Commonwealth in the first trial. “[Collateral estoppel is issue preclusion. It seeks to prevent relitigation of a finally litigated issue in a subsequent proceeding between the same parties whether the same or different evidence is to be introduced.” Commonwealth v. Hude & Klinger, 492 Pa. 600, 617, 425 A.2d 313, 322 (1980). The requirement of mutuality of estoppel, or identity of parties, has been eroded by judicial decisions. The lower court cited Blonder-Tongue v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Oldham v. Pritchett, 599 F.2d 274 (8th Cir.1979); and Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), in holding that mutuality was not a prerequisite to appellee’s use of collateral estoppel in this case. The Pennsylvania courts have also made exceptions to the technical requirement of mutuality where collateral estoppel or res judicata (claim preclusion) are sought to be invoked. See Posternack v. American Casualty Company, 421 Pa. 21, 218 A.2d 350 (1966); Stephenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), cert. denied 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (1965).

The lower court relied extensively on Commonwealth v. Hude & Klinger, supra, where two defendants were charged with perjury for allegedly lying on the witness stand in earlier jury trials in which they both had been acquitted. The Supreme Court held that the credibility of these defendants had already been decided when they denied committing the offenses for which they were charged and the juries chose to believe these denials. In its analysis of Hude & Klinger the Pennsylvania high Court relied on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where the United States Supreme Court held that collateral estoppel is part of the Fifth Amendment’s guarantee against double jeopardy and is applicable to the states through the Fourteenth Amendment. In the instant case, the lower court felt that collateral estoppel was applicable since the issue of giving or accepting bribes is substantially identical in both the Ardrey case and the Lewiscase, and because the Commonwealth had a full and fair opportunity to litigate the issues in the earlier case before a final judgment on the merits was entered. At the May 4, 1981 hearing on appel-lee’s motion to dismiss, the assistant district attorney assigned to both the Ardrey and Lewis cases testified that the two key witnesses who testified in the Ardrey case would also be the chief witnesses in the Commonwealth’s case against Mr. Lewis. (N.T. May 4,1981, p. 16, 17).

The comparison between Hude & Klinger and the situation we are now presented with is appealing, but there is an important distinction between the two cases with which the lower court did not come to terms. Hude & Klinger involved later prosecutions of the same parties, not, as is presented instantly, prosecution of different parties arising out of the same transaction or occurrence. Although the lower court cited cases which make exceptions to the mutuality rule, those cases are all on the civil side. This appeal is based solely on the question of whether or not the doctrine of nonmutual collateral estoppel should be extended to criminal prosecutions, a question of first, impression for the Pennsylvania courts.

The United States Supreme Court was recently confronted with this precise issue in a case whose facts are strikingly similar to the instant case. In Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), the United States Supreme Court refused to extend the doctrine of nonmutual collateral estoppel to criminal prosecutions. Standefer was indicted on four counts of making gifts to an agent of the Internal Revenue Service in violation of 18 U.S.C.A. § 201(f), and on five counts of aiding and abetting a revenue officer in accepting compensation in addition to that- authorized by law, in violation of 26 U.S.C.A. § 7214(a)(2) and 18 U.S.C.A. § 2. Prior to the filing of these indictments the I.R.S. agent was acquitted of some of the violations for which Standefer was accused of aiding and abetting. For this reason, Standefer filed a motion to dismiss the counts charging him with aiding and abetting those offenses which the I.R.S. agent had been acquitted of. The Court, in distinguishing between civil cases and criminal cases, stated:

“This, however, is a criminal case, presenting considerations different than those in Blonder-Tongue or Parklane Hosiery. First, in a criminal case, the Government is often without the kind of ‘full and fair opportunity to litigate’ that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution’s discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, cf. Fed.Rule Civ. Proc. 50; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, cf. Fed.Rule Civ.Proc. 59; and it cannot secure appellate review where a defendant has been acquitted, (cite omitted). . . .
The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the supression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime ‘whose rights were (not) violated.’ (citations omitted). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted. . ..
Finally, this case involves an ingredient not precise in either Blonder-Tongue or Parklane Hosiery: the important federal interest in the enforcement of the criminal law. Blonder-Tongue and Parklane Hosiery were disputes over private rights between private litigants. In such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the court with repetitive litigation ....
In short, this criminal case involves ‘competing policy considerations’ that outweigh the economy concerns that undergird the estoppel doctrine, (citations omitted)” Standefer, supra, 100 S.Ct. at pp. 2007, 2008.

Appellee argues that the Sltandefer case is inapposite to the case at bar because no evidence was suppressed nor excluded in the case of Commonwealth v. Ardrey, there was no evidence admissible against one defendant that was admissible against another, the weight of the evidence in the case of Commonwealth v. Ardrey was not in favor of the Commonwealth, and because the Commonwealth elected to try the case of Commonwealth v. Ardrey before the case of Commonwealth v. Lewis. Although these circumstances are not insignificant, we remain pursuaded by the policy considerations that influenced a unanimous Supreme Court to limit nonmutual collateral estoppel to civil cases. In Standefer, as to two specific payments, the I.R.S. agent tried in the earlier case was convicted of receiving something of value “because of any official act performed ... by him,” 18 U.S.C. § 201(g), but was acquitted of receiving “any fee, compensation, or award ... for the performance of any duty,” 26 U.S.C. § 7214(a)(2). The Supreme Court could not explain these seemingly irreconcilable determinations and found this inconsistency to be reason, in itself, for not giving preclusive effect to the earlier acquittal. Standefer, supra, 100 S.Ct. at 2007 n. 17. The Court stated that, “this case does no more than manifest the simple, if discomforting, reality that ‘different juries may reach different results under any criminal statute. This is one of the consequences we accept under our jury system.’ Roth v. United States, 354 U.S. 476, 492, n. 30, 77 S.Ct. 1304, 1313 [n. 30], 1 L.Ed.2d 1498 (1957).” Id. 100 S.Ct. at 2008, 2009.

Although a jury acquitted Mr. Ardrey of accepting any bribes, it is not inconceivable that another jury may convict appellee of paying bribes. We hold that the Commonwealth’s interest in enforcing the criminal laws of this state outweighs the policies underlying the doctrine .of collateral estoppel.

Reversed and remanded for trial.

      . The brief that defense counsel submitted to the lower court in support of appellee’s motion to dismiss failed to distinguish or even cite Standefer. The Commonwealth did not file a brief in opposition to the motion to dismiss. The ensuing opinion of the lower court also failed to mention the Standefer case. This Court is of the belief that had the lower court been apprised of Standefer, this case would already have been tried.

      . Although the key witnesses in both cases are the same, see f.n. 1, supra, it should be noted that the assistant district attorney representing the Commonwealth in both prosecutions is of the opinion that certain “fairly substantial” statements allegedly made by Mr. Lewis, but excluded as hearsay at the trial of Mr. Ardrey, would come in as evidence in the trial of Mr. Lewis as the statements of a party opponent. (N.T. May 4, 1981, pp. 20, 21).


author: O’KICKI, Judge: SPAETH, Judge,

text:
    452 A.2d 16
    MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1979.
    Filed Oct. 22, 1982.

      Kenneth A. Clouse, Media, for appellant.
    Robert N. Speare, Media, for appellee.
    Before SPAETH, CAVANAUGH, O’KICKI, JJ.

       President Judge JOSEPH F. O’KICKI of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

This case comes before us on appeal from an Order of the Court of Common Pleas of Delaware County granting Defendant/Appellee’s Motion for Summary Judgment in a suit in assumpsit, and denying Plaintiff/Appellant’s Motion for Summary Judgment in the same suit. Jurisdiction is conferred upon the Superior Court by the Act of 1970, 17 P.S. Section 211.301.

Appellant, Michigan Millers Mutual Insurance Company, at all times relevant to the instant case, was the insurance carrier for an individual named Timothy J. Malloy. Appel-lee, United States Fidelity and Guaranty Corporation, at all times relevant to the instant case, was the insurance carrier for the Dan Malloy Company. Appellant’s Complaint in Assumpsit in the trial Court arose from a prior lawsuit in which Timothy Malloy was a defendant and Dan Malloy Company was an additional defendant. That case resulted in a jury verdict in favor of those plaintiffs against both the defendant, Timothy Malloy, additional defendant, Dan Mal-loy Company, with liability over from the defendant, Timothy J. Malloy, to the additional defendant, Dan Malloy Company. The jury verdict, rendered on May 15, 1969, was in the amount of $8,000.00—$7,000.00 for the minor plaintiff and $1,000.00 for the parents and natural guardians of the minor plaintiff.

The Appellant herein, Michigan Millers Mutual Insurance Company, insurance carrier for the defendant, Timothy J. Malloy, subsequent to the aforesaid jury verdict, paid the entire amount to the plaintiffs plus costs in the amount of $284.20. The verdict was thus satisfied and a Praecipe to enter judgment upon the verdict against Dan Malloy Company was entered.

Thereafter, Michigan Millers. Mutual Insurance Company instituted this action seeking to recover from United States Fidelity and Guaranty Corporation either the entire amount of the verdict and costs paid by Michigan Millers Mutual Insurance Company on behalf of the defendant, or in the alternative, to recover contribution from United States Fidelity and Guaranty Corporation. Michigan Millers Mutual Insurance Company filed a Motion for Summary Judgment against United States Fidelity and Guaranty Corporation and they, in turn, filed a Motion for Summary Judgment against Michigan Millers Mutual Insurance Company. The trial Court, by an Order dated October 24, 1978, denied Appellant’s Motion for Summary Judgment and granted Appellee’s Motion for Summary Judgment. Michigan Millers Mutual Insurance Company appeals this Order.

Three issues arise:

1. Was Michigan Millers Mutual Insurance Company a volunteer when it satisfied the verdict?

2. Is United States Fidelity and Guaranty Corporation entitled to a judgment as a matter of law if Michigan Millers Mutual Insurance Company voluntarily satisfied the verdict?

3. Is Michigan Millers Mutual Insurance Company entitled to contribution albeit a volunteer as per case authority or statutory interpretation?

In our determination of the first issue, we must agree with Appellant, Michigan Millers Mutual Insurance Company. Appellant had a duty to satisfy the verdict even though there was no contract, as such, between the two Insurance Companies. Michigan Millers Mutual Insurance Company had not only a moral duty to satisfy the verdict, but also a legal duty—it did have a secondary duty to protect its insured upon failure of United States Fidelity and Guaranty Corporation to discharge its duty. As the Restatement of Restitution, Sections 2 and 162 at page 654 states:

“.. . where the plaintiff is not officious, and he uses his property or his property is used in discharging the obligation of another, or a lien upon another’s property, he is entitled to reimbursement and is entitled to the remedy of subrogation to obtain reimbursement ... He is not officious where he was under a duty to make the payment as for example where he was a surety.”

Here the actions of Appellant were not officious and the enrichment of Appellee was unjust. As such, it is subject to the remedy of subrogation and indemnity.

The insured here paid premiums for a policy covering personal injury suits. The Insurance Company (i.e. Appellant) had a moral and legal duty to defend and indemnify its insured. Failure in this duty would have subjected the insured—actually an innocent third party—to more expense and more litigation. Thus, Appellant, did indeed have a duty to protect its insured, albeit not the primary duty.

In considering the second issue presented, we agree with United States Fidelity and Guaranty Corporation. Michigan Millers Mutual Insurance Company would certainly not be entitled to recover from Appellee if in a volunteer status or if in a volunteer status without more (emphasis, ours). Campbell v. Foster Home Association, 163 Pa. 609, 30 A. 222 (1894); Home Owner's Loan Corp. v. Crouse, 151 Pa.Super. 259, 30 A.2d 330 (1943); First Federal Savings and Loan Association v. Reedy, 35 Pa.D. & C.2d 299 (1964); Wilier v. Millersburg Trust Company, 48 Pa.D. & C.2d 149 (1969). However, Michigan Millers Mutual Insurance Company, is not a volunteer under the instant facts.

A right to contribution may be enforced either at law or in equity. Greenwald v. Weinberg, 102 Pa.Super. 485, 157 A. 351 (1932). Although it has been stated time and time again that subrogation will not be decreed in favor of a mere volunteer, who, without moral or legal duty to do so, pays the debt of another, we, in this case, look closely at those two words, “moral” and “legal” duty. As a surety here, Michigan Millers Mutual Insurance Company was indeed under both a moral (as insurer) and legal (as verdict loser) duty to the McQuades due to the outcome of the jury trial. This has been a recognized principle of law dating from the year 1894 where at 163 Pa. 609, 30 A. 222, in the case of Campbell v. Foster Home Association, it was stated:

“Subrogation will not be decreed in favor of -a mere volunteer who without any duty, moral or otherwise pays the debt of another. It will not arise in favor of a stranger but only in favor of the party, who on some sort of compulsion, discharges a demand against a common debtor.” (emphasis ours).

Again, this first case, in enunciating that principle, speaks to “duty”. We find here that Michigan Millers Mutual Insurance Company had a moral and legal duty to satisfy the judgment since Appellee, United States Fidelity and Guaranty Corporation, refused to do so. (United States Fidelity and Guaranty Corporation readily admits such on p. 7 of its submitted Brief.) As Anstine v. Pennsylvania R. Co., 352 Pa. 547, 43 A.2d 109, 160 A.L.R. 981 (1945) states directly on point:

“In such a case, it is true that as a result of the payer’s act, the other is enriched, but the enrichment is not unjust. This is true not only where the person who is making the payment did so with the intention to make a gift to the other, but also where he intended to obtain reimbursement from the other, if the payment was officiously made.”
“On the other hand, where the plaintiff is not officious, and he uses his property or his property is used in discharging the obligation of another, or a lien upon another’s property, he is entitled to reimbursement and is entitled to the remedy of subrogation to obtain reimbursement ... He is not officious where he was under a duty to make the payment as for example where he was a surety.” (emphasis ours).

The usual method of enforcing a right of subrogation, by an' action in assumpsit, is still available to the Insurance Company involved. Fox v. Balodis, 37 Pa.D. & C.2d 14 (1965). We, therefore, feel that this action in assumpsit was an open channel for Michigan Millers Mutual Insurance Company to pursue.

“Contribution, in the often quoted phrase of Lord Chief Baron Eyre, is bottomed and fixed on general principles of justice and does not spring from a contract, although a contract may qualify it” . .. (citation omitted). The obligation, it is said, arises from “the equitable principle that ‘in equali jure, the law requires equality’ ...” (citation omitted). That doctrine has so long been part of the law that persons engaged as co-obligors in the absence of express understanding otherwise, are held to have dealt with it as an implied term in their relations. It is applied in Pennsylvania, both in equity and at law. Greenwald, supra, [102 Pa.Super.] at p. 488 [, 157 A. 351]. (Although dealing with negotiable instruments, this case can be analogized as on point to the case before us).

As a final point, Michigan Millers Mutual Insurance Company attempted to preserve and protect itself and its rights by filing an Order to mark the judgment in the original action to the use of the defendant. “Those who are in the situation of surety ... who do not by paying preserve and protect some interest in their own property . .. are not within the equity of subrogation.” Martin v. National Surety Corporation, 437 Pa. 159, 262 A.2d 672 (1970). By reverse logic in applying Martin, id, Michigan Millers Mutual Insurance Company is therefore “within the equity of subrogation.”

Reversed and Remanded for appropriate hearing.

CAVANAUGH, J., concurs in the result.

SPAETH, J., files a concurring opinion.

SPAETH, Judge,

concurring:

I agree with the result reached by the majority, for appellant was not acting as a volunteer when it paid the entire judgment; it had at least a duty to pay as a secondary insurer. See Dominski v. Garrett, 276 Pa. Superior Ct. 18, 419 A.2d 73 (1980).

Moreover, the equities, which are properly considered here since subrogation is based on equitable principles, are in appellant’s favor. Dominski v. Garrett, supra; Associated Hospital Service of Philadelphia v. Putsilnik, 262 Pa. Superior Ct. 600, 396 A.2d 1332 (1979). There were two insurance companies, appellant and appellee, only one of which was the primary insurer. Appellant believed it might have at least a secondary obligation, and appellee denied coverage altogether. In this situation, appellant paid the entire amount before its dispute with appellee was settled, rather than force the insured to go uncompensated in the interim. On these facts, the lower court found that appellant had acted as a volunteer when it paid the judgment because appellee was in fact the primary insurer. This result is clearly inequitable, for not only is appellee released from an obligation that was its primary responsibility, but appellant is penalized for good faith conduct that resulted in the insured being completely and promptly paid.

I therefore concur in the order reversing the order of the lower court.


author: PRICE, Judge:

text:
    452 A.2d 19
    GRANT SERVICE COMPANY, INC., Appellant, v. Harold LEVY and Adrienne P. Levy.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Oct. 29, 1982.

      Walter W. Rabin, Philadelphia, for appellant.
    Harold Levy, Philadelphia, appellant, in pro. per.
    Albert C. Oehrle, Norristown, for Adrienne Levy, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PRICE, Judge:

This is an appeal from a judgment n.o.v. entered in this action of mortgage foreclosure in favor of the appellee Adrienne P. Levy. We reverse and remand for consideration of the pending motion for new trial, on which we express no opinion.

In mid-1968, International Gas Light, Inc. (“IGL”) found it needed financing and sought such financing from appellant, Grant Service Company (“Grant”). (R. 101a-102a). To secure this financing, Grant sought and received the personal guaranty of Harold Levy, appellee. (R. 149a). To secure that guaranty, Harold Levy and his wife, Adrienne Levy, executed a mortgage in favor of Grant on their personal residence. (R. 350a-357a). Both said mortgage and said guaranty expressly secured “advances made or to be made or credit given or to be given or other financial accommodations from time to time afforded [to IGL].” The mortgage given expressly secures “all obligations set forth in that certain Guaranty Agreement dated June 6,1968.” (R. 352a). While no copy of the 1968 Guaranty Agreement was available below, both parties agreed that it contained the following language:

This guaranty shall be a continuing, absolute and unconditional guaranty and shall remain in full force and effect until written notice of its discontinuance shall be actually received by [Grant].

In 1971, IGL secured further financing from Grant. Grant also secured a new guaranty agreement from Harold Levy at this time. (R. 377a). IGL shortly thereafter instructed Grant to use some of the 1971 funds to pay off the remaining 1968 debt and Grant did so. (R. 376a).

Appellee's contended below that notice had been sent to Grant discontinuing the 1968 guaranty agreement before the 1971 financing was extended. (R. 166a-168a). The evidence was-uncontroverted, however, that no such notice was ever received by Grant.

The court below found that there was a novátion in 1971 (R. 412a) and implicit therein was a finding that the parties to the 1971 agreements specially intended those 1971 agreements as a complete substitute for all and any prior agreements. In so finding, we hold the court .below erred.

In First Pa. Bank, N.A. v. Triester, 251 Pa.Superior Ct. 372, 380 A.2d 826 (1977), this court considered the law regarding novations at some length:.

The elements.of a novation are clearly stated in Wright v. Hanna, 210 Pa. 349 [59 A. 1097]: ‘The displacement and extinction of the prior contracts, a sufficient consideration, and the consent of the parties thereto.’ (citations omitted) (emphasis added).

Triester, supra, 251 Pa.Superior Ct. at 382, 380 A.2d at 830-831. In Citizens’ Bank of Wind Gap v. Lipschitz, 296 Pa. 291, 145 A. 831 (1929), the court held:

There is a legal presumption that the substituted paper is not taken in discharge, but is received as collateral security for the payment originally undertaken: (citations omitted) (emphasis added).

Id., 296 Pa. at 294, 145 A. at 832.

In Triester, supra, this court noted that the burden of overcoming that presumption and of showing such intention is upon the one who claims to be released, and concluded:

[wjhether there has been a novation is ordinarily a question of fact (citations omitted), and though the burden of proof is upon the one so claiming, and he must prove a special agreement for substitution, yet this may be established by evidence of an express understanding to this effect, or by circumstances showing such assent: Parish Mfg. Co. v. Martin-Parry Corp., 285 Pa. 131 [131 A. 710], (emphasis added).

Triester, supra, 251 Pa.Superior Ct. at 382, 380 A.2d at 831-832.

This case presented a question of fact upon which appel-lees bore the burden of proof; therefore judgment n.o.v. was altogether impermissible since the jury was free to conclude that appellees’ evidence was not credible. Whether appel-lees carried their burden of proof on this factual issue was clearly for the jury alone to decide.

In short, the jury could have found that the appellees simply did not prove any “special agreement for substitution” as required by Triester, Wind Gap, and Parish, supra. There was ample evidence supporting the jury’s implicit finding that there was no such agreement.

As this court pointed out in Stephens v. Carrara, 265 Pa.Superior Ct. 102, 401 A.2d 821 (1979), in considering a motion for judgment n.o.v.,

[T]he court must accept as true all facts and proper inferences from testimony which tend to support the contentions of the party against whom the motion [for judgment n.o.v.] has been made, and further, must reject all testimony and inferences to the contrary.

Id., 265 Pa.Superior Ct. at 105, 401 A.2d at 822.

Applying this rule to the case at bar, the judgment n.o.v. cannot stand.

The order of April 16, 1980 entering judgment n.o.v. is reversed. The matter is remanded for the trial court’s action on the outstanding motion for a new trial upon which we express no opinion and do not retain jurisdiction.

      . Appellee Harold Levy has filed no papers in this court. As such the judgment below is final as to him.

      . While it was contested below whether appellee Adrienne Levy had in fact executed the mortgage, the jury, by bringing back a verdict in favor of Grant and against said appellee, must necessarily have resolved this factual issue against said appellee and in favor of Grant.

      . Mortgage, (R. 350a); 1971 Guaranty Agreement. (R. 377a). (It was testified that this agreement was the same as the 1968 Guaranty Agreement.) (R. 236a).

      . 1971 Guaranty Agreement. (R. 377a).

      . R. 238a-240a, 243a-244a, 246a-250a, 255a-257a, 263a-266a, 268a, 275a, 281a-282a.


author: JOHNSON, Judge:

text:
    452 A.2d 22
    COMMONWEALTH of Pennsylvania v. Sherrill HOBSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1981.
    Decided Oct. 22, 1982.

      R. Bruce Ralston, Butler, for appellant.
    John H. Brydon, District Attorney, Butler, for Commonwealth, appellee.

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

Appellant has appealed from his convictions for escape, implements for escape,, theft, recklessly endangering another person and criminal conspiracy.

The following facts are established by the record. The instant charges arose from Appellant’s escape from the Butler County Jail on February 28, 1976 while incarcerated on robbery charges. He was found guilty of all of the instant charges and after the presentation and denial of post-verdict motions, Appellant was sentenced. Appellant’s convictions, on direct appeal to this court, were affirmed by Per Curiam Order. Commonwealth v. Hobson, 259 Pa.Super. 602, 393 A.2d 1277 (1978), petition for allowance of appeal denied Nov. 27, 1978.

On February 1, 1979 Appellant filed, pro se, a P.C.H.A. petition alleging that his sentence for escape and implements for escape was illegal. The trial court appointed counsel for Appellant, and counsel then filed a Petition for Correction of Sentence. After a hearing on May 6, 1980 concerning the sentencing issue, the trial court issued a memorandum and order correcting Appellant’s sentence on August 28, 1980. Neither Appellant nor his counsel received notice of the proposed issuance of this order and no hearing occurred on that date. Appellant has appealed from that order pro se and new counsel has been appointed.

Appellant raises three issues on appeal, namely: (1) was Appellant properly sentenced on August 28, 1980, (2) was Appellant denied effective assistance because of P.C.H.A. counsel’s failure to assert all issues contained in the petitions and, (3) was Appellant denied his rights under P.C.H.A. for the failure of the trial court to hold a full evidentiary hearing on the issues other than sentencing.

The first issue concerns the propriety of the trial court’s correction of Appellant’s previous sentence. Appellant alleges that the requirements of Pa.R.Crim.P. 1405 were not met, i.e., requiring the presence of the defendant at the time of sentencing and a statement on the record of the reasons for sentence. We agree.

The trial court is empowered to modify a sentence ■only if it notifies the defendant and the district attorney of its intention to do so. Commonwealth v. Horsman, 239 Pa.Super. 534, 361 A.2d 433 (1976). It is well-established that a criminal defendant and his attorney should be present during all aspects of sentencing. See Pa.R.Crim.P. 1405, Commonwealth v. Reed, 254 Pa.Super. 461, 386 A.2d 41 (1978); see also Commonwealth v. Parker, 277 Pa.Super. 234, 419 A.2d 748 (1980); Commonwealth v. Yoder, 249 Pa.Super. 389, 378 A.2d 350 (1977).

Therefore, the sentence for escape and implements for escape is vacated and the case remanded for resentencing.

Concerning Appellant’s second and third issues, no evidentiary hearing has been held since the filing of Appellant’s various P.C.H.A. petitions, except for the May 6, 1980 hearing at which only the sentencing issue was presented. There is no indication in the record as to whether the trial court considered its Order of August 28, 1980 to have eliminated the need for any further hearing on Appellant’s P.C.H.A. petitions. It is clear that a determination must be made, concerning the other issues raised in Appellant’s P.C. H.A. petitions. Those issues must either be held to have been waived or must be decided on the merits by the trial court. See Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981).

We therefore remand the case to the trial court for an evidentiary hearing on the issues, other than the legality of sentence, contained in Appellant’s P.C.H.A. petitions. If the trial court considers those issues to have been waived by Appellant’s P.C.H.A. counsel failing to file an amended P.C.H.A. petition after his appointment, then the trial court shall determine whether the P.C.H.A. counsel was ineffective for failing to assert these issues.

Sentence for escape and implements for escape dated August 28, 1980 is vacated and the case remanded for resentencing and for an evidentiary hearing on the outstanding P.C.H.A. petition issues, consistent with this opinion.

      . 18 Pa.C.S.A. § 5121(a).

      . Id., § 5122.

      . Id., § 3921.

      . Id., § 2705.

      . Id., § 903.

      . During the pendency of Appellant’s direct appeal, Appellant filed various motions and petitions pro se, including a Post Conviction Hearing Act (P.C.H.A.) petition pursuant to the Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. These were properly dismissed by the trial court due to the pendency of Appellant’s direct appeal.

      . On April 16, 1979 Appellant filed, pro se, a Supplement in Amendment to Petition filed under the Post Conviction Hearing Act alleging his prior counsel’s ineffectiveness concerning certain issues at trial and on direct appeal.


author: WICKERSHAM, Judge:

text:
    452 A.2d 236
    M. LONDON, INC., Lewis Feldman and Jennie Feldman, H/W, Paul London, Executor of the Estate of Louis London and Celia London v. FEDDERS CORPORATION and Fedders-Norge Eastern Distributing, Inc. Appeal of UNITED NATIONAL INSURANCE COMPANY, Amherst Insurance Company and Northeastern Fire Insurance Company of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued April 21, 1982.
    Filed Sept. 17, 1982.
    Reargument Denied Nov. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Harry P. Begier, Jr., Philadelphia, for appellants.
    William D. Parry, Philadelphia, for London, appellees.
    Roger J. Harrington, Philadelphia, for Fedders, appellees.
    August J. Lacko, Philadelphia, for amicus curiae.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

This is an appeal from a trial court order denying a petition to intervene brought by United National Insurance Company, Amherst Insurance Company, and Northeastern Fire Insurance Company, of Pennsylvania (hereinafter the insurance companies). The pertinent facts are as follows. A retail store, owned by M. London, Inc., (hereinafter London) and insured by the appellant—proposed intervenor insurance companies, was extensively damaged by fire on November 24, 1974. London presented claims for the damage to the store to the insurance companies which were settled for a total of $55,034.62.

London conducted an investigation into the cause of the fire and concluded that it was the result of a defective refrigerator manufactured and distributed by Fedders Corporation and Fedders-Norge Eastern Distributing, Inc., (hereinafter Fedders). London brought suit against Fedders on May 9, 1975, alleging damages of over $150,000.00. The insurance companies presented a petition to intervene in the suit on August 23, 1977, which was denied on March 8, 1978. An appeal from the order denying the petition to intervene was filed by the insurance companies with the superior court on March 23, 1978, and a petition for supersedeas was filed in the lower court on May 10, 1978. The lower court denied the petition for supersedeas on June 15,1978; the insurance companies then filed an application for stay with the superi- or court. On July 31, 1978, the superior court denied the insurance companies’ application for stay with a per curiam order. -

A jury trial was held in the underlying action on November 6, 1978; the jury returned a verdict in favor of the defendants Fedders. Judgment was so entered on March 29, 1979.

Initially, we note that we may address the issues of appealability and jurisdiction sua sponte. MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976). Although generally an appeal will not lie from an order refusing leave to intervene (see Boise Cascade Corporation v. East Stroudsburg Saving Associations, 300 Pa.Super. 279, 446 A.2d 614 (1982)), such an order is appealable if a contrary conclusion would effectively preclude much of the relief sought by the appellant. Marion Power Shovel Co. v. Fort Pitt Steel, 285 Pa.Super. 45, 48 n. 2, 426 A.2d 696, 697-98 n. 2 (1981).

The appellant insurance companies seek a reversal of the order of the lower court dismissing their petition for intervention, and a new trial in the action against Fedders. If the instant appeal were to be quashed the insurance companies’ claims against Fedders would be effectively precluded as their claims, brought as subrogees, are entirely derivative from that brought by London. “As a subrogee derives his right to recovery from the injured party, the prohibition against splitting of actions is no less binding where the interest of a subrogee is involved.” Travelers Insurance Company v. Hartford Accident and Indemnity Company, 222 Pa.Super. 546, 549, 294 A.2d 913, 915 (1972). The insurance companies have presented us with an appealable order.

The appellant insurance companies frame their first question involved as follows:

Does a subrogating insurance carrier have a right to intervene in its insured’s action against a potential tort-feasor to recover for loss and damage, for which the subrogating insurance carrier has already, in substantial part, paid its insured?

Brief for Appellants at 2.

Whether to allow intervention is a matter within the discretion of the court below, absent a manifest abuse of that discretion. Marion Power Shovel Co. v. Fort Pitt Steel, supra. An abuse of discretion is more than just an error of judgment. A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will. Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981).

Pa.R.C.P. No. 2329, concerning the actions a court may take on a petition for intervention, provides, in pertinent part:

[A]n application for intervention may be refused, if
(2) the interest of the petitioner is already adequately represented; or
(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.

Here, the lower court found that intervention by the insurance companies would not materially improve their position. The lower court noted that the insurance companies had not attempted to intervene until more than two years after London brought the suit, and that London and Fedders were ready to proceed to trial while the insurance companies had not yet begun discovery. Additionally, the lower court found that the insurance companies’ interest would be adequately represented since any award in the suit would have to exceed the insurance companies’ subrogation rights before London could recover.

We find no abuse of discretion by the lower court in denying the insurance companies’ petition to intervene. The petition was filed over two years from the date on which suit was commenced, at which time the original parties were ready to proceed to trial. To have allowed intervention would have been to countenance undue delay in the trial of the matter. Counsel for the proposed intervenor insurance companies was informed of London’s representation by counsel and intention to seek reimbursement for damages in excess of those paid by the insurance companies by a letter dated April 22, 1975 (Reproduced Record at 138a) and yet took no action against the alleged tortfeasors, Fedders, and did not petition to intervene in the instant suit until August of 1977. We reject the insurance companies’ argument and find that their intervention would have unduly delayed trial of the underlying suit.

The appellant insurance companies frame their second issue involved as follows:

May a subrogating insurance carrier be represented, without its consent, in an action brought by its insured against a potential tortfeasor?

Brief for Appellants at 2.

The insurance companies mis-state the issue in alleging that they were represented without their consent in the instant action. As noted previously in this opinion, the insurance companies did not file their petition to intervene until over two years had elapsed from the filing of the complaint; at that time the addition of the proposed interve-nors would have unduly delayed trial in contravention of Pa.R.C.P. No. 2329(3). We reject the argument of the insurance companies and affirm the order of the lower court.

Order affirmed.

WIEAND, J., concurs in the result.


text:
    452 A.2d 238
    COMMONWEALTH of Pennsylvania, Appellant v. Kenneth MARTIN.
    Superior Court of Pennsylvania.
    Argued April 23, 1982.
    Filed Sept. 17, 1982.
    Reargument Denied Nov. 29, 1982.
    Petition for Allowance of Appeal Denied Feb. 11, 1983.

      David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellant.
    Michael Marino, Norristown, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

This case involves a Commonwealth appeal from an order of the Honorable William T. Nicholas, dated September 29, 1981, dismissing the criminal charges against Kenneth Martin pursuant to Pa.R.Crim.P. 1100. For reasons set forth hereinafter, we reverse and remand for proceedings consistent with this opinion.

On May 8,1981 a preliminary hearing was held before the District Justice Donald Riehl, King of Prussia, Montgomery County at which hearing Lillian Wolfberg gave the following sworn testimony:

Q. Mrs. Wolfberg, where do you live?
A. 241 Murray Drive, King of Prussia.
Q. Directing your attention to May 24th, 1979, did something unusual occur at your apartment that day?
A. Yes, that is the day that the apartment—my mother was staying with us at the time.
Q. What is your mother’s name?
A. Her name is Fanny Chait.
Q. And how old is your mother?
A. She is past ninety now but she was eighty-eight years of age at the time.
Q. When you left your apartment that morning who remained there, if anyone?
A. My mother.
Q. And she was alone?
A. She was alone. She was supposed to have gone home that afternoon and then she stayed in the apartment to pack her belongings and she was supposed to be taken home that afternoon.
Q. Now, sometime that morning did you have occasion to call home, your home?
A. Yes, we did call about eleven o’clock.
Q. Did you go home?
A. Yes, immediately after the phone call.
Q. And when you went home what did you observe? A. My mother, I will never forget the way she looked and the hurt and what they did to her.
Q. How did she look?
A. She was in the state of shock. Her hands were swollen because she tried to release herself. She was tied up with the TV cord and she tried to release herself and as a result she had torn every blood vessel in her wrist and she was shaking and the place was in shambles. The entire apartment was in shambles and it was the most shocking thing I have ever observed.
Q. You indicated things were missing. What did you find missing?
A. Everything that I had in the way of sterling; everything that I had in the way of jewelry. Being in the business, my husband has given me some beautiful things that had a lot of sentiment. I had a lot of things given to me by my grandmother that were irreplaceable and other things people and the family had given me, things that were irreplaceable.
Q. Did you estimate the total value of your loss of the things taken?
A. Anywhere between forty and fifty thousand dollars, maybe more.

Record at 4r-9.

Martin was charged in separate bills of information with robbery, burglary and criminal conspiracy along with simple assault and recklessly endangering another person. On September 15, 1981 a hearing was held at the Montgomery County Courthouse before the Honorable Anthony J. Scirica at which point Steven T. O’Neill, Esquire, assistant district attorney related to the court the following facts:

MR. O’NEILL: Thank you, Your Honor.
The offenses are alleged to have occurred on May 24, 1979. A Criminal Complaint was drawn up against the Defendant and filed on June 8, 1979. The Defendant was arrested by the Tredyffrin Township Police Department in Chester County, on June 8, 1979, but not on our Complaint, on the Complaint from Chester County burglaries.
At that time, the Defendant was granted bail. He made bail on June 9, 1979, and that was the last that was ever seen of the Defendant until March 20, 1981, at which time he waived extradition from Texas. He was transported back to the Commonwealth on March 27, 1981, by the Chester County Sheriffs.
From my calculations, Your Honor, the 180th day from the date the Complaint was filed on June 8, 1979, would have been December 5, 1979. It will be the Commonwealth’s allegations in a petition to be filed that the Defendant was, in fact, unavailable from June 9, 1979, to March 20, 1981, and he was then physically in the Commonwealth on March 27, 1981.
The 180th day from March 20, 1981, is September 16, 1981, and the 180th day from March 27,1981, is September 23, 1981. With both of those dates in mind, the Defendant’s trial was scheduled 15 days after arraignment, so as to give him time for discovery to be provided and also for any further Omnibus Pre-Trial Motions on behalf of the Defendant to be filed by Mr. Marino.
The case was scheduled for trial today, September 15, 1981. The Commonwealth is prepared to proceed with trial today.

Record at 2-5 (emphasis added).

Trial did not commence, however, on September 15, 1981 because defense counsel was engaged in a trial in the Eastern District of Pennsylvania. After further discussion between court and counsel, Judge Scirica continued the case until September 30, 1981. (Record at 9.)

Defense counsel became available and the matter was called to trial before Judge Nicholas on September 28, 1981 at which time he heard a petition to dismiss under Pa.R. Crim.P. 1100(f). At the conclusion of the hearing on September 29,1981, Judge Nicholas entered an order of dismissal. The lower court concluded that the Rule 1100 rúndate was September 24, 1981, and, consequently, since the case was called for trial four days later dismissed the charges.

The defendant stipulated at the hearing on the Motion to Dismiss that the Commonwealth had exercised due diligence in attempting to locate him and that he was ‘unavailable’ for purposes of Rule 1100(d)(1), for the entire time from June 8, 1979, the date of the Complaint, to March 20, 1981, the date of his waiver of extradition. [N.T. 5, 9/29/81]
The precise issue thus presented is at what point does the mandatory period in which to commence trial under Pa.R.Crim.P. 1100 begin to run?
The Commonwealth contends that it should begin to run on March 27, 1981, the date on which the defendant was actually returned to Pennsylvania. The defendant contends, and, for reasons which will be more fully explained later, this Court held, that this time calculation must begin with the defendant’s waiver of extradition on March 20, 1981. Since the Commonwealth never filed a Petition to Extend the Time for Trial under Pa.R.Crim.P. 1100(c), this difference of seven days in fixing the starting point for the Rule 1100 calculation becomes critical.
The Court concluded that the Commonwealth had 180 days from March 20, 1981, the date of the waiver of extradition or until September 16, 1981, in which to bring the defendant to trial. This was by virtue of the defendant’s unavailability up to the point of the waiver of extradition. The additional eight days, from September 15 to September 22, during which defense counsel was engaged in another trial in Federal Court, must be excluded due to his unavailability. [Rule 1100(d)(1) ]. Thus, the outside ‘run-date’ for Rule 1100 was September 24, 1981. The Commonwealth must either have brought the defendant to trial by September 24, 1981, or filed a Petition to Extend the Time for Trial under Pa.R.Crim.P. 1100(c). It did neither. Regrettably, the Court was therefore compelled to dismiss the charges.

Lower ct. op. at 3-4.

Justice Kauffman, speaking for the supreme court, recently stated that:

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).

In Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), the supreme court held that in order to avail itself of an exclusion, under the speedy trial rule, of periods of delay for which defendant or his attorney should be deemed responsible, the Commonwealth has a burden of proving, by a preponderance of evidence, the unavailability of the defendant or his attorney and due diligence on the part of the prosecution in attempting to locate and apprehend the defendant.

The Commonwealth submits and we agree that in any fugitive situation there are two discernible periods of unavailability. One is the period prior to location of the defendant and the second period of unavailability is after his location is known but prior to his subsequent return to the state. Each period provides a specific exclusion under Pa.R. Crim.P. 1100(d)(1) of which the Commonwealth may avail itself if it acts diligently in apprehending and returning the fugitive.

The period of time between a defendant’s waiver of extradition and his subsequent return to Pennsylvania may be held ultimately excludable if the Commonwealth demonstrates due diligence in effectuating that return. Here the Commonwealth has shown due diligence. Part and parcel of contesting extradition is that portion of time which involves the return of the fugitive after the extradition contest has been resolved; either through an ultimate waiver or after an order of the court granting extradition. With the seven (7) days in question being excludable, no petition pursuant to Pa.R.Crim.P. 1100(c) would be necessary. In Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981), the court stated:

In order for time during which a defendant is incarcerated in another jurisdiction to be excluded pursuant to Pa.R.Crim.P. 1100(d)(1), the Commonwealth must prove by a preponderance of the evidence that, despite due diligence, the presence of the defendant could not be secured. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977).
A review of the record evinces a finding of due diligence by the Commonwealth in attempting to acquire custody of appellant for prosepution in Pennsylvania.

Id., 494 Pa. at 445-46, 431 A.2d at 938 (emphasis added).

Thus, the seven (7) days being excludable, the Commonwealth would not have to file a petition for extension of time pursuant to Rule 1100(c).

In Commonwealth v. Blackburn, 272 Pa.Super. 1, 414 A.2d 638 (1979), a complaint was filed on September 7, 1975, and a detainer was lodged against the defendant who was then in custody in Ohio. The defendant pled guilty in Ohio on February 4, 1976; he was sentenced to incarceration. Extradition proceedings were begun after that date and the defendant was ultimately returned to Pennsylvania exactly four (4) months later on June 4,. 1976. The trial court held the defendant was unavailable until June 4, 1976.

The complaint was issued and a detainer lodged against the defendant by the Commonwealth of Pennsylvania on September 7,1975. At this time, the defendant was being held by Ohio authorities awaiting trial for robbery in that jurisdiction. The defendant plead guilty to that charge on February 4,1976; he was sentenced; and he was incarcerated. Extradition proceedings were then instituted and the defendant was returned to this jurisdiction on June 4, 1976. On June 12, 1976, a pre-trial motion to quash the information based on a Violation of Pennsylvania Rules of Criminal Procedure, Rule 1100 was argued and denied. The pretrial hearing judge determined that the period of time during which the defendant was held in Ohio was such that it should be excluded from the one hundred and eighty day time period of Rule 1100 because of the unavailability of the defendant. The lower court concluded that due diligence was exercised in returning the defendant to Pennsylvania and that under the circumstances, no violation of defendant’s right to a speedy trial occurred. The trial commenced on November 24, 1976, and ended December 1, 1976.
The second issue we address is whether the pre-trial hearing court erred in not quashing the bill of information and, consequently, whether the defendant’s right to a speedy trial was denied by the failure of the Commonwealth to diligently extradite him from the State of Ohio. We find that the defendant was not denied his right to a speedy trial. Under Pa.Rules Crim.P. 1100(a)(2):
Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
Pa.Rules Crim.P. 1100(d)(1) further provides, and is applicable to this case,
In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney.
Since the defendant was detained in Ohio on robbery charges when the complaint was issued, and was not returned to the Commonwealth of Pennsylvania until June 4, 1976, the pre-trial hearing on June 12, 1976, was not unreasonable delay. In addition, the trial commencing on November 24, 1976, was within the one hundred eighty (180) day period. Tt is axiomatic that all periods of delay beyond the mandatory period must be either excluded from the computation of the period or justified by an order granting an extension pursuant to the terms of Rule 1100 if the Commonwealth is to prevail.’ Commonwealth v. Dozier, 258 Pa.Super. 367, 373, 392 A.2d 837, 840 (1978), Commonwealth v. Shelton, 469 Pa. 8, 14-15, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O’Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976). The pre-hearing judge determined that there had been no violation of the one hundred eighty (180) day rule; and, the court excluded the time the defendant was in Ohio from computation. Under Rule 1100, trial commences when the lower court calls the case for trial. The defendant was present on June 4,1976. Trial commenced within the one hundred eighty (180) day period.

Id., 272 Pa. at 4-6, 414 A.2d at 639-41. (Emphasis added)

In Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981), the court said: “Common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal under Rule 1100 when he voluntarily absents himself from this jurisdiction, refuses to return, and due diligence by law enforcement authorities fails to secure his return.” Id., 493 Pa. at 407-8, 426 A.2d at 613.

More recently, in Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), the supreme court stated:

Aside from preventing unnecessary prosecutorial delay, Rule 1100 serves the valid and important purpose of ensuring that an accused, often incarcerated, is not for any reason made to wait indefinitely for commencement of his trial. It would be senseless, however, for us to release criminal defendants without trial, or worse, after conviction, unless the Commonwealth’s explicit duty under the Rule clearly has been violated.... Discharging this defendant, a convicted first degree murderer, for the Commonwealth’s failure to observe at most a technical requirement which had never been clearly articulated by this Court would do nothing to protect the rights of criminal defendants and would totally disregard the rights of society.
Accordingly, we reject appellant’s contention that he has been denied a speedy trial as guaranteed by Rule 1100.

Id, 495 Pa. at 499, 434 A.2d at 1201.

Order reversed and the case remanded for further proceedings consistent with this opinion.

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

        (b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

      (c) (1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. '
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:
      (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
      (2) any period of time for which the defendant expressly waives Rule 1100;
      (3) such period of delay at any stage of the proceedings as results from:
      (i) the unavailability of the defendant or his attorney;
      (ii) any continuance granted at the request of the defendant or his attorney.