author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    637 A.2d 1364
    FIRST EASTERN BANK, N.A. v. The CAMPSTEAD, INC. and Colorado, Inc., and Standard Retail Sales, Inc. Appeal of FRONTIER COUNTRY REALTY, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed March 1, 1994.

      Scott A. Ruth, Milford, for appellant.
    Jan S. Lokuta, Milford, for Symar Management, participating party.

      Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal we are required to determine the effect of a failure to give notice of a continued sheriffs sale of real estate to a terre tenant. Because the notice requirements of the Rules of Civil Procedure were not complied with, we hold that the sale must be set aside.

On December 13, 1983, Campstead, Inc. executed and delivered to First Eastern Bank a mortgage on 18.71 acres of land in Pike County to secure a loan of seventy-five thousand ($75,000.00) dollars. The mortgage was duly recorded. Campstead subsequently sold 2.457 acres, which First Eastern Bank released from the lien of its mortgage. Thereafter, Campstead conveyed the remaining 16.235 acres to Standard Retail Sales, Inc. This tract was not released from the lien of the mortgage and remained subject thereto. When Standard Retail Sales subsequently sold 11.003 acres, however, this portion was released from the lien of the mortgage. When the mortgage went into default on or about June 15, 1990, only 5.232 acres remained subject to the mortgage, and it was against this tract that mortgage foreclosure proceedings were commenced.

The same tract of 5.232 acres was sold for nonpayment of taxes by the Pike County Tax Claim Bureau; and on November 12, 1990, a deed therefor was executed and delivered to Frontier Country Realty, Inc. (Frontier). The deed was recorded on the following day.

On December 19,1990, First Eastern Bank issued execution against the tract of 5.232 acres, but the writ failed to name Frontier as a terre tenant. A sale scheduled for February, 1991, was continued, and a continued sale on March 20, 1991, was stayed in response to a petition by Frontier. Following hearing, however, the petition was dismissed by the court on July 22, 1991. A petition to reissue the writ of execution was thereafter filed by First Eastern Bank, and a sheriffs sale was scheduled for December 11,1991. Although Frontier was still not named as terre tenant, it was given notice by letter that the sheriffs sale had been scheduled for December 11, 1991. When A1 Saggese, an officer of Frontier, appeared at the time of the sale on December 11, however, he learned that the sale had been continued. Wdien he inquired about a later date, he learned that a date certain had not been set. Later, the continued sale was rescheduled for January 29, 1992. Notice of this sale, however, was not given to Frontier. Saggese, according to the uncontradicted testimony, learned of the continued sale on January 28, 1992, and appeared at the time of the sale on January 29, 1992. He did not bid at that time, and the real estate was sold to First Eastern Bank.

On February 27, 1992, Frontier filed exceptions to the sale and also a petition to set aside the sale. On September 11, 1992, First Eastern Bank assigned its interest in the real estate and mortgage to Symar Management, Inc. (Symar), which was substituted for First Eastern as a party to the pending litigation. The trial court subsequently held a hearing; but, on November 20, 1992, the court dismissed Frontier’s exceptions and petition to set aside the sheriffs sale. The sole reason given for its decision was that Saggese had been present at the sale on January 29, 1992. Frontier appealed.

Appellee filed a motion to quash Frontier’s appeal on grounds that appellant’s brief failed to comply with the appellate rules. The deficiencies in appellant’s brief, however, are not of a type which would impair appellate review. In the exercise of our discretion, therefore, we will deny appellee’s motion to quash the appeal. See, e.g.: O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 433, 567 A.2d 680, 681-682 (1989). See also: Thomas v. APSCUF, 101 Pa.Commw. 174, 176-177, 485 A.2d 903, 904-905 (1985). Contrary to appellee’s suggestion, moreover, we have been supplied with transcripts of hearings held in the trial court.

Pa.R.C.P. 3129.1 requires a plaintiff who pursues a writ of execution against real property to file an affidavit setting forth, to the best of the affiant’s knowledge or information and belief, the owner or reputed owner of the real property and every other person who has a record interest in the property. “A terre tenant is ‘... one who purchases and takes land subject to the existing lien of a mortgage or judgment against a former owner.’ ” Marra v. Stocker, 532 Pa. 187, 190 n. 4, 615 A.2d 326, 327 n. 4 (1992), quoting Black’s Law Dictionary at p. 1642 (4th ed. 1968). A terre tenant is entitled to receive notice of a sheriffs sale of real estate. Pa.R.C.P. 3129.1 and 3129.2. Frontier was a terre tenant who was entitled to notice of the sheriffs sale in the instant case. Despite its entitlement to notice, the record is clear that First Eastern Bank failed to include Frontier in its affidavit and that throughout most of these proceedings, Frontier was not given the formal notices required by the rules pertaining to sheriffs sales.

Although an officer of Frontier was present at the sale which was scheduled for December 11, 1991, the sale was not held. It was continued indefinitely, and no date certain was then set for the continued sale. By the provisions of Pa. R.C.P. 3129.3, therefore, a new notice of the rescheduled sheriffs sale was required. Such notice, however, was not given to Frontier. The notice, therefore, was defective.

The notice requirements of Pa.R.C.P. 3129.1, 3129.2, and 3129.3 were intended to protect fundamental rights of due process by insuring that persons with an interest in real estate would receive adequate notice before being deprived of their property. Cf. Meritor Mortgage Corp.—East v. Henderson, 421 Pa.Super. 339, 342, 617 A.2d 1323, 1325-1326 (1992); Scott v. Adal Corp., 353 Pa.Super. 288, 299-300, 509 A.2d 1279, 1285 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987). Because notice is “the most basic requirement of due process, [it] must ‘be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. The form of notice required depends on what is reasonable considering the interests at stake and the burdens of providing notice.’ ” Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 469, 487 A.2d 1372, 1377 (1985), citing Pennsylvania Coal Mining Assoc. v. Insurance Dept., 471 Pa. 437, 452-453, 370 A.2d 685, 692-693 (1977). Here, the interest at stake was the potential loss of the title to real estate, and the burden of providing adequate notice was slight.

Appellee argues, however, that appellant cannot complain about the lack of notice because a corporate officer, in fact, was present at the January 29th sale. It relies upon a decision of the Commonwealth Court which, in In re Tax Claim Bureau of Lehigh County, 1981 Upset Tax Sale, 96 Pa.Commw. 452, 507 A.2d 1294 (1986), allocatur denied, 514 Pa. 640, 523 A.2d 346 (1987), interpreted a similar notice requirement contained in the Real Estate Tax Sale Law. The Court held that a petitioner who had had actual notice of the date and time of a postponed sale was not entitled to have a sale set aside because he had failed to receive the formal notice required by the statute. The Court said:

The deprivation of a property right by adjudication must be preceded by notice and an opportunity to be heard. Otherwise it is a deprivation of property without due process of law. Grace Building Co. v. Chester County Land Corp., 19 Pa.Commonwealth Ct. 269, 339 A.2d 161 (1975). It is the notice which is indispensable to due process. Whatever mechanism is used, it must be reasonably calculated to apprise the interested parties of the pendency of the action and to afford them the opportunity to present their objections. This is why strict compliance [with the formal notice requirement] is required. Grace; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); First Pennsylvania Bank, N.A. v. Lancaster County Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983).
But to require strict compliance where, as here, owner had notice, in fact is to exalt form over substance, and ignores the purposes of the [notice] requirement.

Id. at 455-456, 507 A.2d at 1296. See also: Casaday v. Clearfield County Tax Claim Bureau, 156 Pa.Commw. 317, 627 A.2d 257 (1993).

The fallacy in this reasoning, if followed, is that the uniformity of the rule will be destroyed in favor of any form of notice so long as the person entitled to receive notice actually becomes aware of the sale. However, even if we were to agree that evidence of actual notice may, in some cases, excuse compliance with the formal notice requirements contained in the Rules of Civil Procedure, the circumstances of this case are inadequate to excuse the requirement of notice of a continued sheriffs sale as required by Pa.R.C.P. 3129.3. Here, appellant, at best, learned of the sheriffs sale at the proverbial eleventh hour, so that, as it argues, its ability to protect its interest may well have been impaired.

We conclude, therefore, that the trial court erred as a matter of law when it held that the failure to adhere to the notice requirements of Pa.R.C.P. 3129.3 did not render the sheriffs sale defective merely because an officer of the corporate terre tenant appeared and was present at the sale, having learned of it fortuitously on the day preceding the sale.

Appellee’s motion to quash is denied. The order of the trial court is reversed, and the case is remanded for the entry of an order setting aside the sheriffs sale and requiring a new sale with notice to all interested parties in accordance with the applicable Rules of Civil Procedure. Jurisdiction is not retained meanwhile.

OLSZEWSKI, J., files a concurring statement.

OLSZEWSKI, Judge,

concurring:

I concur with my colleagues that the sheriffs sale must be set aside for lack of proper notice. When the Commonwealth exercises its sovereign power to extinguish property rights, strict compliance with the notice requirements set forth in our rules of civil procedure is especially important. I am also satisfied that Frontier’s actual notice, coming only the day before the sale, was insufficient to allow Frontier to meaningfully participate in the sheriffs sale. To hold otherwise would prejudice Frontier.

When, however, actual notice is ample, and lack of formal notice works no prejudice, we should not demand strict compliance with procedural rules for their own sake. As a general matter, we interpret our rules of civil procedure liberally, “to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P., Rule 126, 42 Pa.C.S.A. Where appropriate, we may “disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Id. This approach does not countenance the wholesale derogation of our procedural rules, but does allow us to bend them just a little where the interests of justice demand. I would not surrender this flexibility in favor of a uniform policy of super-strict compliance with procedural rules, when such compliance would only be pointless and burdensome.

      . Pa.R-C.P. 3129.3 is as follows:
      RULE 3129.3 POSTPONEMENT OF SALE. NEW NOTICE
      (a) Except as provided by subdivision (b) or special order of court, new notice shall be given as provided by Rule 3129.2 if a sale of real property is stayed, continued, postponed or adjourned.
      (b) If the sale is stayed, continued, postponed or adjourned to a date certain within one hundred days of the scheduled sale, and public announcement thereof, including the new date, is made to the bidders assembled at the time and place originally fixed for the sale, no new notice shall be required, but there may be only one such stay, continuance, postponement or adjournment without new notice.

      . 72 Pa.S. § 5860.602.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    637 A.2d 1367
    Emir A. ZIKRIA, Appellant, v. ASSOCIATION OF THORACIC AND CARDIOVASCULAR SURGEONS, P.C., A Pennsylvania Corporation, Siroos Samadani, an Individual and William H. Miller, an Individual.
    Superior Court of Pennsylvania.
    Argued Jan. 4, 1994.
    Filed March 7, 1994.

      Frank Yourick, Pittsburgh, for appellant.
    Michael J. Bruzzese, Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and BECK and JOHNSON, JJ.
   BECK, Judge.

In this wrongful discharge case, the substantive issue is whether the trial court erred in dismissing the tortious inference with contract and intentional infliction of emotional distress counts of a complaint filed by plaintiff-appellant Emir A. Zikria against defendants-appellees, Association of Thoracic and Cardiovascular Surgeons, P.C., Siroos Samadani, and William H. Miller. Prior to addressing that issue, however, we must consider whether the order appealed from is a final and appealable order.

The factual and procedural context of this case can be succinctly described. Appellant Zikria, a medical doctor, is a former employee of appellee Association of Thoracic and Cardiovascular Surgeons, P.C. (hereinafter “ATCS”). Zikria was also an officer and shareholder of ATCS. Co-appellees Samadani and Miller are also doctors who are both employed by and officers and shareholders of ATCS.

In the first count of Zikria’s complaint, he alleged that he was wrongfully discharged as an employee of ATCS and was underpaid during his last year at ATCS, all in breach of various contracts he had allegedly entered into with ATCS. The first count named ATCS and both individual appellees as defendants. In the second count, against the individual appellees only, Zikria alleged that Samadani and Miller had tortiously interfered with his contractual relations with ATCS. In the final count, Zikria asserted a cause of action for intentional infliction of emotional distress against all three appellees. All three counts were premised on the same recitation of facts—basically, Zikria alleged that ATCS, Samadani and Miller had wrongfully excluded him from the activities and revenues of ATCS and, eventually, from the practice of medicine as an employee of ATCS.

Appellees filed preliminary objections to counts II and III of the complaint, which appellant thereupon amended. The preliminary objections were renewed and, ultimately, the trial court granted the objections and entered an order dismissing counts II and III of the amended complaint. This timely appeal followed.

Few principles of Pennsylvania law are clearer or more firmly established than that which states that an order dismissing some but not all counts of a multi-count complaint is interlocutory and not immediately appealable. See, e.g., Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). It is the exception to this principle that has resulted in a legion of inconsistent determinations. The exception provides that such an order is appealable if the dismissed count or counts state causes of action separate from the remaining counts. Id.; Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (en banc). In determining whether a dismissed count states a separate cause of action, we ask whether the dismissal of that count has put the plaintiff out of court on all theories of recovery against a given defendant for a given loss. Motheral, 400 Pa.Super. at 415, 583 A.2d at 1184 (quoting Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987)).

Although the Supreme Court of Pennsylvania has now amended the Rules of Appellate Procedure so as to eliminate the need to employ these principles in future cases, the amended rules apply only to orders entered in matters commenced after July 6, 1992, and to orders entered on or after March 1, 1994, regardless of when the proceeding was commenced. See Pa.R.A.P. 341 & Per Curiam Order of the Supreme Court dated January 10,1994. Since this proceeding was commenced in 1991 and the order in question was entered before March 1, 1994, the new rules do not apply and we must decide this matter under the appealability principles set forth above.

The order in question dismissed both plaintiffs tortious interference with contractual relations count and his intentional interference with emotional distress count. Thus, plaintiff was left with his breach of contract action only. We consider the appealability of the dismissal of each count separately.

As to the tortious interference count, we find the trial court’s order to be interlocutory and not presently appealable. This count pleads the same facts as does the breach of contract count, with the addition of certain allegations of malicious intent by the individual defendants. The damages sought are also the same in both counts, except that appellant also sought punitive damages for tortious interference. The individual defendants are named in both counts. Clearly, appellant is seeking to recover for the same harm or loss in both counts—that is, for the loss of the opportunities and revenues which his continuing participation in ATCS would have yielded him.

In a highly similar case, a panel of this court recently decided that the dismissal of a count for tortious interference which merely rephrases an existing breach of contract count is not a final appealable order. Fink v. Delaware Valley HMO, 417 Pa.Super. 287, 612 A.2d 485, 489 (1992). Moreover, the Fink court noted that the addition of a request for punitive damages in such a situation does not create a separate cause of action. The court stated:

In Bash v. Bell Telephone, 411 Pa.Super. 347, 601 A.2d 825 (1992), we determined that a claim for punitive damages was not final and appealable because the contract action remained unresolved. We reasoned that “where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if appellant is successful in his cause of action of breach of contract does the measure of damages become relevant.” Id. at 352-53, 601 A.2d at 828 (citations omitted).

Thus, the fact that appellant’s tortious interference count, which merely is a restatement of his breach of contract count, contains a plea for punitive damages does not convert that count into one that sets forth a separate cause of action. Therefore, the appeal from the trial court’s dismissal of appellant’s tortious interference count must be quashed.

In contrast, we find that insofar as the trial court’s order dismissed appellant’s intentional infliction of emotional distress count, the order is final and appealable. Although this count is also premised on the factual allegations underlying the breach of contract count, we nevertheless are compelled by our case law to find that it seeks recovery for a distinct kind of harm or loss and, therefore, sets forth a separate cause of action. See Britt v. Chestnut Hill College, 429 Pa.Super. 263, 632 A.2d 557 (1993) (count pleading intentional infliction of emotional distress seeks recovery for physical and emotional harm, which is distinct from harm identified in defamation count); Fink, supra (intentional infliction count seeks recovery for harm distinct from that identified in breach of contract count).

We now turn to a consideration of the trial court’s decision to dismiss appellant’s intentional infliction count on the ground that the allegations of this count were insufficient as a matter of law to set forth a cause of action for intentional infliction. We agree. Liability for this tort hinges upon “outrageous” conduct by the defendant:

It has not been enough that the Defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Lazor v. Milne, 346 Pa.Super. 177, 180, 499 A.2d 369, 370-71 (1985) (quoting Restatement (Second) Torts, § 46, comment d). It is for the court to make the initial determination whether the defendant’s conduct can reasonably be considered to be so outrageous as to permit recovery. Id.

Clearly none of the allegations contained in appellant’s complaint describe conduct by the appellees that even approaches the type of behavior that might give rise to liability for intentional infliction of emotional distress. This is a straightforward business dispute, a breach of contract case, and no more. It is precisely the type of case in which courts have so frequently held that no recovery for emotional distress is permitted. See, e.g., Rodgers v. Nationwide Mutual Insur. Co., 344 Pa.Super. 311, 496 A.2d 811 (1985).

The appeal from that portion of the trial court’s order that dismissed count II, tortious interference with contractual relations, is quashed. The portion of the trial court’s order that dismissed count III, intentional infliction of emotional distress, is affirmed.

      . We note that the Supreme Court of Pennsylvania has never adopted Section 46 of the Restatement of Torts, which describes the tort of intentional infliction of emotional distress, as part of the law of this Commonwealth. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). In the instant case, we decide only that even if a cause of action for intentional infliction of emotional distress were cognizable in this Commonwealth in a proper case, this case would not meet the minimal requirements of such a cause of action.

      . Appellant cites MacGregor v. Mediq, Inc., 395 Pa.Super. 221, 576 A.2d 1123 (1990), for the proposition that wherever a complaint pleads both a breach of contract action and another action sounding in tort, then a cause of action for intentional infliction of emotional distress can also be asserted. We have reviewed MacGregor and find no such holding, or even a suggestion of such a holding, in the court’s opinion. MacGregor
        held only that a careful review of the complaint filed in that case revealed that the plea for damages for emotional distress was intended to follow plaintiff’s allegations of negligence and fraud and was, therefore, properly pleaded. Id. at 229, 576 A.2d at 1127.


author: ROWLEY, President Judge:

text:
    637 A.2d 1371
    Paul Richard STARR and Deanna Dell Starr, Appellants, v. O-I BROCKWAY GLASS, INC. Paul Richard STARR and Deanna Dell Starr, Appellants, v. O-I BROCKWAY GLASS, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1993.
    Decided March 8, 1994.

      David S. Pontzer, Ridgway, for appellants.
    George Crompton, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   ROWLEY, President Judge:

Paul and Deanna Starr, plaintiffs in the trial court, appeal from two orders of the court. In the first order, the motion for summary judgment of O-I Brockway Glass, Inc. (“O-I Brockway”), defendant in the trial court, was granted; in the second order, the Starrs’ petition to amend their complaint was denied. Upon careful consideration, we reverse the first order and vacate the second order.

This action arose out of a disputed contract between the Starrs, husband and wife, and O-I Brockway. On June 20, 1989, the parties entered a contract whereby the Starrs would sell land, upon which they were operating a trailer and recreation vehicle firm, to O-I Brockway. Of note, the contract provided as follows:

The purpose for which Buyer is purchasing Sellers’ property is to construct a warehouse on Sellers’ property. In order to construct the warehouse, Buyer is also purchasing additional property adjacent to Sellers[, the Berlin property.] ... The sale that is subject to this Agreement is fully conditioned on Buyer’s ability to purchase and close on the Berlin property as well as proceed with the construction of the warehouse.... Said ability to purchase and close on the Berlin property, as well as the ability to proceed with construction of the warehouse, shall be determined by the Buyer in its sole discretion.

Agreement of Sale, 6/20/89 at 6. The contract also specified a closing date, referred to as a “settlement” date, of August 1, 1989 or a “time being agreed to be of the essence.” Id. at 5.

The Starrs allege that on the date the contract was made, an agent for O-I Brockway requested the Starrs to immediately vacate the premises by evicting tenants residing thereon and making inventory storage available for O-I Brockway. The Starrs complied with this request, after having informed the agent that the request would require the Starrs to drastically reduce their own inventory and lose discounts and inventory for future sale. The Starrs claim that “[i]n compliance with the request ..., [they] did not place early orders for inventory and thus substantially reduced the goods which they had to sell” and suffered monetary losses. First Amended Complaint at 2.

O-I Brockway has not acted on the contract, and apparently no longer intends to purchase the Starrs’ property. O-I Brockway explains that “[i]n the past three and one-half years, ... relying on both the contingencies inherent in the agreement and [the Starrs’] failure to assert claims on the agreement, [O-I Brockway] has taken significant steps away from the plan envisioned and embodied in the agreement [and ... ] no longer has options to pursue construction and development as called for in the agreement.” Brief of O-I Brockway in Opposition to Petition for Leave to Amend Complaint, 2/12/93 at 3. Based on the fact that the sale was conditioned on O-I Brockway’s ability to purchase the “Berlin” property and to proceed with construction of a warehouse, O-I Brockway has characterized the contract as completely discretionary and the non-performance of the contract as “solely at O-I’s discretion.” Appellate Brief of O-I Brockway at 14.

In their first amended complaint, the Starrs requested recovery for losses sustained as a result of making their property immediately available to O-I Brockway. On December 23, 1992, the Starrs petitioned to amend their first amended complaint in order to assert two additional theories of recovery: i) specific performance and ii) recovery of the total contract price. As stated above, the parties are here on appeal following the trial court’s denial of the Starrs’ petition to amend their first amended complaint and the court’s grant of O-I Brockway’s motion for summary judgment.

O-I Brockway requested summary judgment based, in part, on the assertion that the parol evidence rule bars the consideration of the oral request made of the Stairs by the agent of O-I Brockway to immediately vacate their property. The trial court agreed with O-I Brockway and reasoned that the language of the contract governed, specifically that the transfer of property was contingent on O-I Brockway’s ability to procure property from a third party; evidence suggesting that O-I Brockway was taking immediate possession of the property would have the effect of altering the contract’s terms and therefore could not be considered under the parol evidence rule.

Before we consider the issues raised on appeal, the legal effect of the contract in this case needs clarification. We acknowledge that the transfer of property as contracted by the parties was contingent on O-I Brockway’s ability to procure the property of a third party. Even so, this did not make the decision whether to perform the contract solely at O-I Brockway’s discretion as O-I Brockway suggests. This is not a case where the contract was illusory, such that O-I Brock-way had the unfettered choice of whether to perform and the absolute, arbitrary right to cancel the agreement without further liability.

O-I Brockway was charged by the contract with determining whether it was able to purchase the property from the third party. If the Starrs had initially brought action against O-I Brockway to compel the purchase of their property, O-I Brockway could have successfully defended the suit only by proving that it was unable to complete the transaction with the third party, not merely that it did not desire to do so. DiBenedetto v. Di Rocco, 372 Pa. 302, 304-05, 93 A.2d 474, 475 (1953) (confirms mutuality of obligation). O-I Brockway was under no duty to ensure that the third party transaction take place, but a court would “supply a term imposing on [O-I Brockway the] duty to make reasonable efforts” to bring about the transaction. Restatement of Contracts 2d, Contractual Obligations § 225 comm, d, illus. 8; see also Id. at § 205 Duty of Good Faith and Fair Dealing (duty of good faith in the performance of a contract). Ergo, O-I Brockway misperceived its duties under the contract if it believed, as asserted, that “[t]he Starrs had no foundation for a claim seeking specific performance of a contract that was completely discretionary.” Appellate Brief of O-I Brockway at 14.

With the legal effect of the contract in mind, we consider the issues pursued on appeal. First, the trial court concluded that, if the alleged oral request by the agent of O-I Brockway had the effect of imputing a term of immediate possession in the contract, the oral request altered the contingency term stated in the contract and therefore could not be considered under the parol evidence rule. We disagree.

If an agent for O-I Brockway did in fact request the immediate vacation of the Starrs’ property, and the Starrs complied to their detriment with this request in order to accommodate O-I Brockway’s expressed need for immediate storage space, O-I Brockway cannot now assert the parol evidence rule to preclude evidence of its own request as altering the “contingency” language in the contract. The doctrine of equitable estoppel provides that “the voluntary conduct [i.e., the request] of a party” may preclude him “from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” Black’s Law Dictionary (1979) at 483; e.g. Doppler v. Doppler, 393 Pa.Super. 600, 574 A.2d 1101 (1990) (equitable estoppel “prevents a party from taking a position that is inconsistent with a position previously taken which is disadvantageous to the other”). The Starrs have alleged facts which warrant the opportunity to prove that equitable estoppel prevents O-I Brockway’s assertion of the parol evidence rule.

Even so, the parties dispute the material fact of whether an agent of O-I Brockway actually requested the Starrs to immediately vacate their property. In contrast, because the trial court concluded that evidence of the request was barred by the parol evidence rule, it determined that there was no disputed issue of material fact. In light of the erroneous basis for the trial court’s determination and in accordance with our standard of review, we find that the trial court committed an error of law and that summary judgment was improperly granted. Melat v. Melat, 411 Pa.Super. 647, 654-55, 602 A.2d 380, 384 (1992) (summary judgment standard of review).

On remand, the Starrs can attempt to prove that the alleged request was made and may argue for the application of equitable estoppel. “ “Whether an estoppel results from established facts is a question for the determination of the court: ... It is for the jury to say whether alleged remarks were made, but it is for the court to decide whether they are susceptible of the inferences attributed to them. That statements should give rise to an estoppel they must be clear and reasonably certain in their intendment.’ ” Nesbitt v. Erie Coach Company, 416 Pa. 89, 96, 204 A.2d 473, 476 (1964) (citation omitted) (remanded for factual finding of whether alleged remarks were made).

Next, with respect to the appeal from the court’s denial of the Starrs’ petition to amend complaint, the court stated: “having granted the Defendant’s Motion for Summary Judgment, we believe that it would be improper to permit the Plaintiffs [sic] to amend their Complaint at this point.” Opinion of the Trial Court on Plaintiffs’ Petition to Amend Complaint at 2. Because we reverse the grant of summary judgment, the basis for the trial court’s denial of the petition to amend is now absent. Therefore, we vacate the order denying the petition to amend and remand to permit the trial court to reconsider the merits of the petition, without prejudice to the rights of the parties to appeal from any adverse order.

Order granting motion for summary judgment reversed. Order denying petition to amend complaint vacated and case remanded for further proceedings consistent with this opinion.

      . "The general rule ... is that parol evidence of a contemporaneous oral agreement is not admissible to alter, vary, add to, modify, or contradict a written instrument complete within itself unless the oral agreement was omitted through fraud, accident, or mistake.” Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991). This is particularly true if the oral agreement "would naturally and normally have been contained in the written agreement.” Id. The "written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution.” Id.

      . "Words of promise which by their terms make performance entirely optional with the 'promisor' whatever may happen, or whatever course of conduct in other respects he may pursue, do not constitute a promise.'' Restatement of Contracts 2d, Meaning of Terms, § 2 comm, e. Rather, if the provisions of a contract are optional with the promisor, the contract is termed “illusory” and the promisee is not “justified in an expectation of performance.” Id.; see also Geisinger Clinic v. Di Cuccio, 414 Pa.Super. 85, 606 A.2d 509 (1992) ("If the promise is entirely optional with the promisor, it is said to be illusory and, therefore, lacking consideration and unenforceable.”)

      . The Starrs indirectly make this argument on appeal, and assert the following facts in support: ‘‘[w]hether the condition [of performance] occurred or not was in the sole discretion of O-I Brockway.... O-I Brockway made an oral request of Starr that they turn the ... area over to O-I Brockway immediately. Starr complied with this request and gave O-I Brockway possession of the real estate.... Further, Starr submits that the use of the oral request of O-I Brockway, which was the reason for Starr to vacate the real estate, created a new promise invoking reliance and entitling Starr to damages under the contractual theory of promissory estoppel.... This promise could reasonably be expected to induce Starr to vacate on the reasonable belief that O-I Brockway would proceed to final settlement.” Appellate Brief of the Starrs at 18, 19, 20 (emphasis added).
      Equitable estoppel does not apply in this case as an affirmative defense which would have to be specifically pled; rather, it is being asserted against the defendant/appellee O-I Brockway to preclude it from raising the "defense” of the parol evidence rule. See Paul v. Lankenau Hospital, 375 Pa.Super. 1, 543 A.2d 1148 (1988) (“plaintiff may use it to preclude a defense from being raised”), affirmed in part, reversed in part 524 Pa. 90, 569 A.2d 346 (1990), reargument denied.


author: HESTER, Judge:

text:
    638 A.2d 217
    FISCH’S PARKING, INC., Vena Associates, Inc., v. INDEPENDENCE HALL PARKING, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1993.
    Filed Jan. 13, 1994.
    Reargument Denied March 22, 1994.

      Bruce W. Kauffman, Philadelphia, for appellant.
    Jeffrey Bates, Philadelphia, for appellees.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Don Tesauro t/a Independence Hall Parking, Inc. appeals from the October 13, 1992 judgment entered by the Philadelphia Court of Common Pleas following a trial by jury. In this breach of contract action, Anthony V. Vena, the principal partner of Vena Associates, Inc, formerly known as Fisch’s Parking, Inc., appellee, was awarded the sum of $135,000 plus prejudgment interest. Appellant argues that appellee was precluded from being paid a sales commission upon the sale of appellee’s property due to the fact that appellant was not a licensed real estate broker. We are constrained to disagree.

Appellee instituted this action alleging that the parties entered into a Consulting Agreement (hereinafter the “agreement”), whereby appellee promised to contribute his expertise in managing parking lots in order to assist appellant in promoting the sale of a large parking lot located near Veteran’s Stadium in Philadelphia (hereinafter the “property”). Appellant then refused to pay appellee his fee after the property was sold, claiming that appellee acted as a real estate broker without a license and was precluded from being paid due to the provisions of 63 P.S. § 455.101 et seq., the Real Estate Licensing and Registration Act (hereinafter the “Act”). The trial court determined that appellee assisted in the sale but that the Act, which precludes non-real estate brokers from recovering commissions, did not apply.

The record viewed in the light most favorable to appellee as the verdict winner reveals the following. Appellant desired to sell the property. However the property was subject to easements and other restrictions which limited its attractiveness to developers. Appellant did not wish to reveal his financial records and therefore, he solicited appellee’s assistance due to appellee’s well-recognized expertise in parking lot management, whereby appellee could vouch for potential cash revenue from operation of the property as a parking lot to prospective purchasers. Moreover, appellant was aware that appellee had many contacts in the parking lot business. Appellant wanted to avoid paying both a broker and a consultant. However, he also wished to avoid paying appellee either a fixed fee or an hourly wage in the event a sale of the property was not consummated. Therefore, the parties agreed that appellee would receive five percent of the selling price of the property. The agreement, which was encaptioned “Consulting Agreement,” was executed by both parties.

In interpreting an agreement, the court must first look to the intent of the parties. Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986). In Raiken v. Mellon, 399 Pa.Super. 192, 198, 582 A.2d 11, 13 (1990), we stated:

When the words of a contract are clear and unambiguous, the intent of the parties is to be discovered from the express language of the agreement. [Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986) ], citing Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).
Where ambiguity exists, however, the courts are free to construe the terms against the drafter and to consider extrinsic evidence in so doing. Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986).

Instantly, the agreement was entitled “Consulting Agreement,” yet it required appellee to assist appellant in promoting the sale of the property and locating prospective buyers. We conclude that there is an inherent ambiguity in the language of the agreement. Therefore, we find the intent of the parties properly was explored through evidence extrinsic to the agreement. Rusiski v. Pribonic, supra.

Appellant regarded the agreement as an exclusive sales listing agreement of limited duration. He asserts appellee never informed him that he did not possess a real estate broker’s license, yet the agreement required him to assist in promoting the sale of the property. Moreover, appellant claims it is incredible that he would need consulting services from appellee concerning how to paint parking place stripes, regulate the flow of cars, or the types of signs since appellant had operated parking lots for decades. Appellant essentially asserts that he received nothing of value from appellee’s consulting services in that appellee did not provide valuable advice, produce a suitable buyer, or aid in any manner in the sale of the property. Finally, appellant contends that the agreement was terminated. First, he testified that he informed appellee that “It was long enough ... and that our deal is off,” and appellee said, “don’t worry about it.” Notes of Testimony (“N.T.”), 5/4/92, at 2.711. He further testified appellee, “never told me to send him a letter. He said, “don’t worry about it. Forget it.” Id. Second, the agreement, by its own terms, was to remain in effect for 180 days until terminated by the parties after 180 days had elapsed.

Appellee contends that he provided valuable consulting advice under the agreement in connection with analyzing the customer base, vehicle flow, placement and type of signs, parking lot security, and cash management to improve revenues. He maintains that he assisted in creating the parking lot management lease which ultimately was utilized by the purchaser, Dr. Richard Salkind, to obtain revenue by subcontracting the operation of the property as a parking lot from the time Dr. Salkind bought the property until he could make alternate arrangements. Appellant also received a commission under that leasing agreement. Nevertheless, appellee claims his advice was of value in the sale to Dr. Salkind since Dr. Salkind might not have purchased the property without assurance of achieving a positive cash flow by leasing its operation. Appellant also testified that although appellant indicated he wished to cancel the agreement, appellee asked him to send a cancelation letter. N.T., 5/1/92, at 106.

While acknowledging that a significant portion of his task was to find and introduce potential buyers, appellee denied that his commission was tied in any fashion solely to producing a suitable buyer. He claims he contributed a great deal of time and effort to this project to the exclusion of his own business. He notes that he did not represent himself to be a real estate broker, and he specifically informed appellant he was not licensed as real estate broker. Appellee further asserts that appellant encouraged him to continue to perform even after the agreement of sale had been signed, and that appellant did not terminate the agreement in writing as required by the agreement. Appellee also argues that appellant always was represented by an attorney, and this agreement was a consulting arrangement and not a disguised broker’s agreement. The jury credited appellee’s version of the facts, and this appeal followed.

Appellant contends that he is entitled to a judgment notwithstanding the verdict due to the fact that the court erred in not applying the Act to bar appellee from recovering commissions. Our standard of review for an appeal from a judgment notwithstanding the verdict is clear. In Olson v. Dietz, 347 Pa.Super. 1, 10, 500 A.2d 125, 129 (1985), we stated:

A judgment notwithstanding the verdict may be entered only in a clear case, Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa.Super. 60, 459 A.2d 409 (1983), and is proper only where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984). Judgment n.o.v. should not be entered in cases where the evidence is conflicting upon a material fact. Burg v. Aberman, 183 Pa.Super. 1, 128 A.2d 179 (1956). In considering such a motion, a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 417 A.2d 1196 (1980).

Initially, we note that whether the Act applies is a question of law. See Golibart v. Reamer, 415 Pa.Super. 623, 610 A.2d 56 (1992) (seller of shares in a real estate development project was barred from recovery without a real estate license by the Act as a matter of law). Appellant contends the facts in this case make it clear that appellee was involved principally in promoting the sale of land. He asserts that the fact that appellee also held himself out as a consultant and provided advice regarding parking revenues does not alter the fact that he promoted the sale of real estate which has been held to be encompassed by the Act since we have construed it broadly. Id. (fee earned for any act assisting in bringing parties together in a real estate transaction implicates the Act). Appellant further asserts that no two reasonable minds could differ that appellee’s employment in this case was to find prospective buyers and “the mere introduction of two willing parties comes within the purview of the statute.” Harrison v. Soffer, 221 Pa.Super. 275, 282, 289 A.2d 752, 756 (1972). Moreover, he asserts that the Act does not require that one hold oneself out as a broker for the Act to apply. Burke v. Israel, 264 Pa.Super. 286, 399 A.2d 779 (1979). Hence, appellant contends the Act clearly applies and requires appellee to be licensed to be entitled to payment. We disagree.

Initially we note that 63 P.S. § 455.201, which defines acts which constitute acting as a real estate broker, provides:

“Broker” Any person who, for another and for a fee, commission or other valuable consideration:
(1) negotiates with or aids any person in locating or obtaining for purchase, lease or acquisition of interest in any real estate;
(2) negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for any real estate;
(3) manages or appraises any real estate;
(4) represents himself as real estate consultant, counsellor, house finder;
(5) undertakes to promote the sale, exchange, purchase or rental of real estate: Provided, however, That this provision shall not include any person whose main business is that of advertising, promotion or public relations; or
(6) attempts to perform any of the above acts.

The record viewed in the light most favorable to the verdict winner reveals no evidence that appellee ever held himself out as a real estate broker on behalf of appellant as required by 63 P.S. § 455.201(4). He specifically informed appellant that he was not licensed as a real estate broker and did not give advice regarding the suitability of the property or the price, but confined himself to communicating information between the parties. Similarly, section 455.201(3) is not relevant.

Further, we find that 63 P.S. §§ 455.201(1) and (2) do not apply since appellee did not engage in negotiations regarding the sale. The agreement entitled appellee to payment of a fee if the sale were consummated, but was not dependent upon whether appellee produced a suitable buyer, as most real estate broker’s commissions are normally structured. See Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962) (a nonexclusive real estate broker was entitled to a commission where he produced a willing and able buyer pursuant to his contract with the seller before being notified a sale already had occurred). Instantly, appellee had no contact whatsoever with Dr. Salkind until after the agreement of sale was executed. His commission was not tied to producing a buyer, but rather, payment for his services was contingent on a sale without any other restrictions. Thus, we agree with the trial court that appellee’s commission was not tied to negotiating a sale as required for the application of 63 P.S. §§ 455.201(1) and (2).

We further conclude that section 455.201(5) of the Act also does not apply, since appellee specifically was retained for his expertise in managing parking lot operations, a skill which would not be shared by most real estate brokers. See General Aggregate Corp. v. LaBrayere, 666 S.W.2d 901 (Mo.App.1984) (fee for a geological expert retained to assist novice in purchase of a quarry operation was not precluded by prohibition of commissions to an unlicensed real estate broker). In the instant case, appellee was a consultant encouraged to locate buyers and help promote the sale of the property as part of his consulting services. We do not agree that the fact that he endeavored to find buyer's automatically implicates the Act when other services are involved, even though we construe the Act more broadly than does Missouri. Although a sale might not occur without some information about the cash revenue from the parking business, his commission was not contingent on obtaining a suitable buyer, but was tied to the occurrence of a sale.

Contrary to appellant’s argument, we attach importance to the fact that the parties labeled the agreement as a consulting agreement. All of the cases cited by appellant in which we opined that the Act extended to promoting a purchase or sale of a business also involving land, provided that the prospective commission expressly was made contingent on finding a suitable buyer. None involved providing other distinct services such as consulting. Moreover, the agreement provided that appellee was entitled to be paid for his services, if a sale occurred. There were no other restrictions. On this basis we believe the cases cited by appellant applying the Act to the sale of land and which also included providing other services, are distinguishable and not applicable. See Brown v. Kleinfelter, 267 Pa.Super. 144, 406 A.2d 560 (1979) (sale of a business accompanied with the sale of land); Burke v. Israel, 264 Pa.Super. 286, 399 A.2d 779 (1979) (sale of coal and land); Burns v. Gartzman, 139 Pa.Super. 453, 11 A.2d 708 (1940) (sale of a restaurant and the land on which it stood). Consequently, we are not persuaded that the instant case is a situation in which no two minds could differ that the consulting agreement was a broker’s agreement in disguise. Thus, we reject appellant’s assertion that the trial court erred in denying him judgment notwithstanding the verdict through application of the Act.

Next, appellant argues that he is entitled to judgment notwithstanding the verdict since appellee produced no evidence that he was the procuring cause of the sale which would entitle him to a commission. Since we previously determined that the trial court correctly found that appellee’s commission flowed from his consulting services which were made contingent on the sale, and not for procuring a suitable buyer, this argument clearly is inapposite.

Appellant next argues appellee waived or was estopped from claiming payment of his commission since he failed to appear at the closing. Appellant relies upon Wilson v. Franklin, 282 Pa. 189, 127 A. 609 (1925), where we opined that a broker cannot recover where he failed to notify the seller of his claim to a commission by producing a suitable buyer prior to closing although he had ample time to do so, and the seller paid a commission to another broker, and Doppler v. Doppler, 393 Pa.Super. 600, 574 A.2d 1101 (1990) (claimant equitably estopped from enforcing a partition agreement where he failed to make a claim at closing and attempted to assert his claim twenty years later).

We find these cases do not apply since the testimony establishes that appellee notified appellant of his claim. Appellee also requested the date of closing from appellant, but appellant deliberately did not inform appellee about the correct date of the closing uritil after it occurred. Appellee made his claim in writing, and we find no requirement that he must personally attend the closing in order for his claim to be valid. Further, the fact that appellee’s fee was made contingent upon a sale does not necessarily mean that it is an item which must be included in the closing as a possible hen and may not be settled independently between the owner and the consultant. Accordingly, we conclude appellant had not demonstrated that he is entitled to a judgment notwithstanding the verdict through waiver or estoppel.

Appellant’s last two arguments relate to jury instructions. He first argues that he is entitled to a new trial alleging that the trial court’s instructions to the jury were inadequate. Our standard of review for claims that a jury instruction legally is inadequate is clear. In N.C. Quandel Co. v. Slough Flooring, 384 Pa.Super. 236, 240, 558 A.2d 99, 101 (1989), we stated:

When a challenge is made as to the sufficiency of a charge to the jury, our function as an appellate court is to examine the charge in its entirety against the background of the evidence to determine whether error has been made which prejudices the complaining party. Unless we conclude that the charge as a whole was erroneous and may have prejudiced the appellant, we will not reverse for isolated inaccuracies. In making such a determination, we are careful to construe the offending portions in their proper context.

Appellant asserts that the jury instructions were inadequate and that the trial court erred in not submitting several critical factual issues to the jury. Instantly, he contends that the trial court improperly refused to instruct the jury that appellee was precluded from recovering if it found that: (1) the consulting agreement did not constitute an exclusive listing agreement, and without an exclusive arrangement, appellee could not recover since he neither assisted in procuring nor convinced Dr. Salkind to purchase the property; and (2) appellee waived his claim since he did not attend the closing. Without such instructions, appellant posits that the jury made its decision without critical guidance on relevant legal principles.

We find the trial court did not err. First, the issues regarding whether the agreement constituted an exclusive listing agreement and whether appellee found or convinced Dr. Salkind to purchase the property, were rendered irrelevant once the trial court determined that the consulting agreement entitled appellant to recover whether or not he procured Dr. Salkind. Similarly, we also previously found that the trial court correctly decided that appellee’s failure to appear personally at the closing did not bar his claim. Consequently, there was no need to instruct the jury regarding these issues.

Finally, appellant argues that trial court erred in giving the jury a misleading and confusing verdict sheet. Appellant contends the verdict sheet precluded the jury from addressing the issue of whether the agreement was understood by the parties to be terminated when appellant notified appellee orally that he wished to cancel the agreement. Further, he asserts the verdict sheet avoided forcing the jury to decide whether the agreement expired on its own terms. Instead, the verdict sheet asked the jury to decide only: “Do you find that a consulting fee agreement existed between plaintiff and defendant?” This one question, appellant argues, misled and confused the jury since the parties agreed the contract had been formed and the issue instead was whether the agreement had been terminated. We do not agree.

Appellant is not entitled by right to special findings of fact. In Century 21 Heritage Realty v. Bair, 386 Pa.Super. 373, 378, 563 A.2d 114, 116 (1989), we stated:

Generally, a trial judge in Pennsylvania may grant or refuse a request for special findings on the basis of whether such would add to the logical and reasonable understanding of the issue. We will not disturb a trial judge’s decision to grant or refuse the request absent an abuse of discretion. Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 445-56 n. 4, 393 A.2d 1188, 1190 n. 4 (1978); Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376 (1984); Walsh v. Pennsylvania Gas & Water Co., 303 Pa.Super. 52, 449 A.2d 573 (1982).

Furthermore, we agree with the trial court that the various issues and arguments regarding when and how the consulting agreement would be terminated were set forth clearly in the court’s instructions. The jury was informed, inter alia, that:

A contract may be terminated by the expiration of a reasonable time, by the expressed terms of the contract or by express or implied agreement of the parties. If you find that the contract was terminated by any of these methods, then you should find in favor of the Defendant. On the other hand, if you find that the contract was not terminated, then you know you should find in favor of the Plaintiff. A contract can terminate if it is not performed within a reasonable time. If you find that the property or the business was not sold after a reasonable amount of time had elapsed, then you should find for the Defendant. Otherwise, you should find for the Plaintiff.
Members of the jury, Mr. Vena contends that the contract between he and [appellant] was the written agreement that you’ve seen on the easel. If you find that the agreement was the contract between the parties, you may also look to the terms of that agreement to determine whether or not a contract was terminated. The agreement provides that the agreement may be terminated upon [thirty days] written notice. That provision, however, may be waived by the actions of the parties.
If you find that the agreement between the parties was the agreement that you’ve seen on the easel, and if you find that the written notice to terminate was waived and that the parties did terminate the agreement, then you should find in favor of the Defendant. On the other hand, if you find that the agreement was not terminated, then your verdict should be in favor of the Plaintiff.

The above instruction presented the jury with all of the considerations to determine whether the agreement was terminated. Obviously, if it were terminated, the agreement would no longer be in existence, and the jury would not have found in favor of appellee. These instructions were complete, guided the jury’s deliberations very clearly, and there was no need for special findings on these issues.

Judgment affirmed.

      . We note that appellant filed appeals from both the September 29, 1992 order denying post trial motions and the October 13, 1992 judgment, which are misidentified in the caption.


author: HOFFMAN, Judge: McEWEN, Judge,

text:
    638 A.2d 224
    Scott SCHRIVER, Appellant v. Candy MAZZIOTTI.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1993.
    Filed Feb. 1, 1994.
    Reargument Denied April 5, 1994.

      James A. Nettleton, Jr., Lancaster, for appellant.
    Joan E. London, Reading, for appellee.

      Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the March 1, 1993 order granting appellee’s, Candy Mazziotti, motion for summary judgment. Appellant, Scott Schriver, presents the following issues for our review:

1. Whether the Court of Common Pleas of Berks County, Forrest G. Schaeffer, P.J. erred by entering Summary Judgment on behalf of defendant, where the defendant was the movant and her witnesses did not establish the salient facts upon which the court relied in dismissing plaintiff’s case for failure to demonstrate a good faith effort at having defendant served with a complaint prior to the running of the statute of limitations?
2. Whether the Court of Common Pleas of Berks County, Forrest G. Schaeffer, P.J. erred by granting summary judgment under Lamp v. Heyman under the circumstances of this case?

Appellant’s Brief at 3. For the reasons that follow, we affirm.

On March 14, 1989, a collision occurred between a vehicle driven by appellee and a vehicle in which appellant was a passenger. Appellant allegedly suffered personal injuries as a result of the accident. By letter dated June 18, 1990, appellant’s counsel informed appellee that he had been retained to represent appellant. Appellant’s counsel requested appellee to forward a copy of the letter to her insurance carrier. Appellant’s counsel also by letter dated June 18, 1990 informed appellee’s insurance company, Allstate, advising them of appellant’s desire to recover compensation for his injuries. By letter dated July 10, 1990, a claims representative for Allstate, Michael Spengler, communicated with appellant’s counsel requesting medical information about appellant’s injuries. Communication between appellant’s counsel and Mr. Spengler continued over several months, but no settlement could be agreed upon. By letter dated January 23, 1991, appellant’s counsel informed Allstate that litigation would be commenced in the instant action and enclosed a courtesy copy of the complaint.

On January 24, 1991, a complaint was filed with the Berks County’s Prothonotary’s Office. Enclosed with the complaint was the filing fee of $60.50 and the sheriffs service fee of $27.08. It is the local practice in Berks County to require a sheriffs instructions form to be completed to effectuate service. Eleanor Dachowski, of the Berks County Sheriffs Department, testified that she received the copy of appellant’s complaint on January 25, 1991. However, as there was no sheriffs instruction form, she waited several days to see if it would be forwarded. When she did not receive the instructions form, she sent a letter to appellant’s counsel along with a blank sheriffs instruction form on January 29, 1991. On March 21, 1991 the instructions form was received by Ms. Dachowski. Service was attempted by the sheriffs office on March 26, 1991, but could not be completed. Service was finally effected on April 2, 1991, however, the statute of limitations on the action had run out on March 14, 1991. On January 19, 1993, appellee moved for summary judgment, which was granted by order dated March 1,1993. This timely appeal followed.

Appellant first argues that the court erred in granting summary judgment as appellee did not establish the facts upon which the court based its decision granting summary judgment. Specifically, appellant contends that as appellee did not establish that appellant failed to follow the proper procedure for effecting service in Berks County, the court erred in making this determination. We disagree.

Initially, we note that this Court’s scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

In the instant case, appellant presented evidence that a complaint was filed with the Berks County’s Prothonotary’s Office and that enclosed with the complaint was the filing fee of $60.50 and the sheriffs service fee of $27.08. However, appellant does. not even allege on appeal that a sheriffs service form was completed and filed along with the complaint in this particular matter.

Plaintiffs are required to make a good faith effort to notify a defendant of a commenced action. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986); Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The purpose behind this requirement is “to avoid the situation in which a plaintiff can bring an action, but by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.” Lamp, 469 Pa. at 478, 366 A.2d at 899. Thus, the Court in Lamp held that a “writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id. The Court characterized such unacceptable conduct as follows:

“depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.”

Id. at 472, 366 A.2d at 866.

A plaintiff will, therefore, fail to satisfy the good faith requirement when he takes affirmative steps to prevent service on a defendant. Gould v. Nazareth Hosp., 354 Pa.Super. 248, 511 A.2d 855 (1986). Additionally, “At a minimum, the good faith effort required in Lamp v. Heyman, supra, mandates compliance with the Pennsylvania Rules of Procedure, and importantly, local practice.” Feher by Feher v. Altman, 357 Pa.Super. 50, 55, 515 A.2d 317 (1986); Green v. Vinglas, 431 Pa.Super. 58, 635 A.2d 1070 (1993). Moreover, when “a praecipe is filed but the writ is not served the burden is on the plaintiff to show that he made a good faith attempt to have the writ served.” Feher by Feher, at 55, 515 A.2d at 319. The same burden applies when a complaint is filed but service is not effected. See Pannill v. Seaborne, 278 Pa.Super. 562, 420 A.2d 684 (1980); Sanders v. State Farm Automobile Insurance Co., 424 Pa.Super. 372, 622 A.2d 966 (1993).

In the instant case, a complaint was filed with the prothonotary, but appellee was not served. Therefore, the burden was on appellant to produce evidence that he complied with local procedural rules to effectuate service. Appellant however has not even alleged that he delivered the appropriate instructions form to effectuate service under Berks County local rules when he initially filed his complaint in this particular matter. Additionally, appellant failed to return the service instructions form mailed to him for almost two months.

Viewing the evidence in the light most favorable to appellant, there is no material question of fact as to whether appellant complied properly with local procedure. Thus, the trial court could properly conclude that appellant had failed to comply with local procedural rules and therefore had not made a good faith effort to effect service.

Appellant next argues that the circumstances of this case make the application of Lamp inappropriate. Specifically, appellant argues that as a result of the correspondence between appellant’s counsel and the insurance adjuster for Allstate, appellee' suffered no prejudice as a result of the failure to be timely served with the complaint. Appellant cites Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990), allocatur denied, 526 Pa. 636, 584 A.2d 319 (1990), and Hoeke v. Mercy Hospital, 254 Pa.Super. 520, 386 A.2d 71 (1978), as supporting this position.

In Leidich, the plaintiffs counsel filed a writ of summons and instead of allowing it to be delivered by the prothonotary to the sheriff for service pursuant to the local practice, took possession of the writ himself, and sent it to the defendant by first class mail. The court noted that:

(1) one’s “good faith” effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis; and
(2) the thrust of all inquiry is one of whether a plaintiff engaged in a “course of conduct” forestalling the legal machinery put in motion by the his/her filings.

Leidich, 394 Pa.Super. at 311, 575 A.2d at 918. The court then stated:

[W]e find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit ... More importantly, consistent with Lamp’s teachings, we cannot in good conscience equate the plaintiffs attorney’s actions -with a course of conduct which served to stall, “the machinery of justice.”

Leidich, at 313, 575 A.2d at 919.

In Hoeke, the plaintiffs filed the wrong praecipe and consequently the prothonotary issued a technically defective ■writ. The court declined to sustain the defendant’s preliminary injunction’s finding that appellant’s had received notice, albeit technically defective notice, before the statute of limitations ran.

Both Leidich and Hoeke indicate that when the plaintiff attempts to give notice to the defendant, and does so, albeit in a technically defective fashion, and the plaintiff has not engaged in conduct to forestall “the machinery of justice”, our court’s will find that the statute of limitations has been tolled and allow the action to proceed.

In the instant case, however, appellant never sent notice, technically defective or otherwise, to appellee within the limitations period. His forwarding to appellant’s insurance carrier of unfilled courtesy copy of the complaint is not equivalent to service. More importantly, appellant’s conduct amounted to forestalling the machinery of justice and therefore belies any assertion that appellant made a “good faith” effort to serve appellee. Appellant’s initial attempt at service was ineffective because of his failure to follow the appropriate local procedure. Moreover, when appellant was then presented with an opportunity to effectuate proper service he failed to act in a timely fashion. This we conclude does not amount to a “good faith” effort to give notice to appellee. See Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986) (counsel’s initial delay of eight days in paying sheriffs fee and providing sheriffs instructions attributable to lost file and subsequent one month delay due to forgetfulness did not amount to good faith effort to serve process). Therefore, we conclude that the trial court correctly applied Lamp, to the facts of the instant case. Accordingly, the order of the trial court is affirmed.

Affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting.

The author of the lead opinion provides an insightful and persuasive expression of view, and I differ with neither the actual scenario depicted by that opinion, nor with the legal principle upon which it relies. However, I am obliged, most respectfully, to this statement of dissent since I differ with the application of that prevailing principle to the facts of this case. The chronology of the pertinent events well serves an analysis:

March 14, 1989 The accident underlying the suit occurs.
June, 1990 Counsel for appellant commences negotiations with Allstate Insurance Company, the carrier for appellee.
January 22, 1991 Counsel for appellant forwards to the Prothonotary by mail (1) a complaint, (2) a check in the amount of $60.50 for payment of the filing fee of the Prothonotary, and (3) a check in the amount of $27.08 in payment of the fee for service of the complaint by the Sheriff. Counsel fails to comply with the Berks County requirement that a particular form concerning service be presented to the Sheriff with the other material.
January 23, 1991 Counsel for appellant forwards to Allstate Insurance Company a copy of the Complaint which had been forwarded to the Prothonotary to commence this suit.
January 24, 1991 The Prothonotary receives the foregoing materials.
March 14, 1991 The two-year statute of limitations applicable to the suit initiated by appellant against appellee expires.
March 21, 1991 Counsel for appellant (1) files with the Prothonotary a praecipe to reinstate the Complaint, and (2) delivers to the Sheriff the form required in Berks County.
April 2, 1991 The Sheriff completes service upon appellee.

The lead expression quite appropriately relies upon the decisions of this Court in Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986), and Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and on the declaration that a complainant must refrain “from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Lamp v. Heyman, supra at 478, 366 A.2d at 899. It merits mention that appellant here, unlike the complainant in Lamp who proceeded by writ of summons, filed a complaint which fully expressed the nature and details of the cause of action, and, further unlike the complainant in Lamp, provided for delivery of a copy of the complaint to the sheriff for service and delivered to the sheriff a check in payment of the fee for service. Thus, appellant did not engage in the particular conduct which the Supreme Court specifically described as serving “to stall in its tracks the legal machinery”.

The author of the lead opinion also conducts a quite scholarly examination of the decision of this Court in Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990), allo. denied, 526 Pa. 636, 584 A.2d 319 (1990). I quickly accompany the author as his examination moves to a bright focus upon the following portions of that decision of this Court:

(1) one’s “good faith” effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis; and (2) the thrust of all inquiry is one of whether a plaintiff engaged in a “course of conduct” forestalling the legal machinery put in motion by his/her filings.

Leidich v. Franklin, supra at 311, 575 A.2d at 918.

[W]e find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit.... More importantly, consistent with Lamp’s teachings, we cannot in good conscience equate the plaintiff attorney’s actions with a “course of Conduct which serve[d] to stall” the machinery of justice.

Leidich v. Franklin, supra at 313, 575 A.2d 914. The illumination there provided compels me, however, to conclude:

That the several steps undertaken by appellant in this case qualifies as a “good faith” effort.
That the defect in service did not affect any substantial right of appellee.
That the lethargic presentation of the appropriate form to the sheriff, in light of all the other steps completed by counsel for appellant, does not demonstrate “a course of conduct which serve[d] to stall in its tracks the legal machinery he has just set in motion”.

Thus it is that I would reverse the order of the trial court and restore to appellant the right to his day in court.

      . Nor am I persuaded that the decision of this Court in Green v. Vinglas, 431 Pa.Super. 58, 635 A.2d 1070 (1993), controls disposition of the instant appeal since there exists an essential factual disparity between the two cases, specifically, the plaintiff in Green (1) did not commence the litigation until the terminal breath of the statute of limitations, (2) commenced the litigation by summons and not by complaint, (3) commenced the litigation in a form of quite uncertain venue, and even then (4) failed to conform to local practices with regard to the payment of the fees due the sheriff. Thus, there was valid and abundant basis for the conclusion in Green that the plaintiff fell short of a “good faith” effort to notify the respondent of a lawsuit.


author: JOHNSON, Judge.

text:
    638 A.2d 229
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel G. SMIRGA. COMMONWEALTH of Pennsylvania, Appellant, v. Darlene BONETTI. COMMONWEALTH of Pennsylvania, Appellant, v. Dawn M. DABULIS.
    Superior Court of Pennsylvania.
    Submitted Dee. 1, 1993.
    Filed March 2, 1994.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Patrick J. Thomassey, Monroeville, for Smirga, appellee.
    John Elash, Pittsburgh, for Bonetti, appellee.
    Michael Machen, Pittsburgh, for Dabulis, appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   JOHNSON, Judge.

On these consolidated appeals, we are asked to consider whether the Administrative Judge of the Criminal Division of the Court of Common Pleas of Allegheny County lacked jurisdiction to act upon motions for a new trial or in arrest of. judgment on appeals from summary convictions brought more than five years following conviction. We find that the procedure for reinstating the right to file a statutory appeal was followed in none of these three cases. We also conclude that the trial court erred in attempting to grant relief without the presentation of any evidence to support appellants’ unsworn allegations. Accordingly, we reverse the orders which either granted the motion in arrest of judgment nunc pro tunc, arrested judgment and ordered a new trial, or granted the motion for a new trial, respectively.

PROCEDURAL HISTORY

The certified record in each of these three appeals is devoid of any information concerning proceedings within the office of the issuing authority, the district justices. Each appeal involves an original charge of retail theft. There are no summary citations, complaints, or magistrate’s papers included within the records certified by the Allegheny County Clerk of Courts. The procedural data set forth in this decision are taken from the unsworn motions which led to the orders now under review.

COMMONWEALTH Y. SMIRGA—

NO. 667 PITTSBURGH, 1993

In 1985, Daniel G. Smirga was charged with the summary offense of retail theft. Smirga pled guilty before District Justice Georgina Franci on August 17, 1985. No appeal was taken. On March 30, 1993, counsel for Smirga filed a Motion in Arrest of Judgment and/or New Trial Nunc Pro Tunc. On April 15, 1993, the Honorable Robert E. Dauer issued an order arresting judgment in the case. Upon denial of the Commonwealth’s Motion for Reconsideration, this appeal followed.

COMMONWEALTH V. BONETTI—

NO. 755 PITTSBURGH, 1993

In January, 1982, Darlene Bonetti was charged with the summary offense of retail theft. On March 4, 1982, Bonetti was found guilty and paid a $51 fine. No appeal was taken. On February 19, 1993, counsel for Bonetti filed a Motion for New Trial and Arrest of Judgment. On April 19, 1993, Judge Dauer granted the motion. Upon denial of the Commonwealth’s Motion for Reconsideration, this appeal followed.

COMMONWEALTH V. DABULIS—

NO. 756 PITTSBURGH, 1993

Dawn Dabulis was charged with the summary offense of retail theft on June 17, 1987. She was found guilty and, on August 10, 1987, paid the fine and costs totalling $76.50. No appeal was taken from the conviction. On March 29, 1993, counsel for Dabulis filed a Motion for New Trial and/or Arrest of Judgment. Judge Dauer denied the motion on April 12, 1993, the order denying relief being placed upon an identical copy of the original motion, except that the copy bears a filing date of April 12, 1993, and does not bear the signature of counsel, Michael J. Machen, Esquire. Judge Dauer granted a Motion for Reconsideration filed April 20, 1993, and remanded the case to the district justice for a new hearing. Upon denial of the Commonwealth’s Motion for Reconsideration of the Order Granting Motion for New Trial, this appeal followed.

FACTUAL BACKGROUND

In one appeal, the motion for new trial alleges that the defendant has worked as a security guard at an institution of higher learning in the Pittsburgh area and that the defendant’s retail theft conviction was uncovered when application was made for an opening as a police officer and a background check was instituted. Defendant alleges denial of the promotion and loss of the security job for providing false information to the institution.

In another appeal, defendant has been employed by a Pittsburgh law firm and had applied for entry into law school. Defendant alleges that the retail theft conviction may block acceptance to law school. At the time of the conviction, defendant was 17 years old, did not appear -with counsel, and was unaware of the consequences of a guilty plea.

In the third appeal, the defendant alleges that the fine was paid without representation by counsel, without defendant being appraised of appeal rights, and without understanding the effect of paying the fine. The motion alleges that defendant has had no further contact with the criminal justice system, and that the retail theft conviction has “prevented Defendant from securing certain employment on numerous occasions.”

QUESTIONS PRESENTED

The Commonwealth presents two issues for our consideration. The first question asks:

I. Whether the Court of Common Pleas lacked jurisdiction to arrest judgment and/or grant new trials in the present cases?

Subsumed under that question are the two issues:

A Whether a motion for new trial and/or arrest of judgment is not a proper motion to challenge the voluntariness of a guilty plea to a summary offense at the District Justice level? and
B. Whether the Administrative Judge of the Court of Common Pleas of Allegheny County, Criminal Division, has jurisdiction to act upon appeals from summary convictions?

The second question presented for our consideration is:

II. Whether the retail theft defendant/appellants in the trial court failed to offer adequate proof in support of their requests for relief?

In Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990), this Court set forth, once again, the general rules governing appeals to courts of common pleas from summary convictions. We there said:

The appropriate method of challenging the propriety of a summary conviction, whether after hearing or by plea, is by a timely appeal to the court of common pleas pursuant to Pa.R.Crim.P. 86. Such an appeal must be taken within 30 days of the sentence and when perfected the appeal is heard de novo by the Court of Common Pleas. Rule 86(g) provides that such an appeal is the exclusive means of challenging a summary conviction.

Id. at 567, 568 A.2d at 1318. We went on to state, with respect to the timeliness requirement:

Our Court has held that “[i]n proper cases, where a party has been prevented from appealing by reason of fraud or a wrongful or negligent act of a court official, the court may allow enlargement of time for appeal or appeal nunc pro tunc. It is obviously appellants’ burden, however, to show such mitigating circumstances.” Furthermore, the party seeking leave to appeal nunc pro tunc must establish that they acted promptly to assert such a right upon learning of the existence of the grounds relied on for such relief.

Id. at 568, 568 A.2d at 1318-19 (citations omitted).

Rule 86 of the Pennsylvania Rules of Criminal Procedure expressly provides, in pertinent part, as follows:

RULE 86. APPEALS FROM SUMMARY JUDGMENTS
(a) When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the conviction or other final order from which the appeal is taken. The notice of appeal shall be filed with the officer of the court of common pleas designated to receive such papers.
‡ ‡ K'
(f) When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. In appeals from summary proceedings arising under the Motor Vehicle Code (Title 75 of Pennsylvania Consolidated Statutes) or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. Unless the presence of the law enforcement officer is waived in open court by the defendant, the failure of the officer to appear and testify shall result in a dismissal of the charges.
(g) This rule shall provide the exclusive means of appealing from a summary conviction. Courts of common pleas shall not issue writs of certiorari in such cases.

An examination of each of the motions originally filed in the Criminal Division of the Court of Common Pleas of Allegheny County reveals that no defendant sought a trial de novo. More to the point, Allegheny County has established a procedure governing appeals from adjudications of the district justices. Rule 68.1 of the Allegheny County Local Rules of the Criminal Division as adopted March 6,1986, effective April 28, 1986, expressly provides:

RULE 68.1 Statutory Appeals
All appeals filed pursuant to Rules 67 and 68 of the Rules of Criminal Procedure from adjudications by the several district justices in Allegheny County or by the magistrates of the .Pittsburgh City Court finding a defendant guilty of summary offenses under the Crimes Code or the Motor Vehicle Code shall be filed with the Office of the Prothonotary of the Court of Common Pleas of Allegheny County in Room 516, Courthouse; such appeals shall be referred to as “statutory appeals.”
(a) The prothonotary shall maintain a separate docket and numbering system for statutory appeals.
(b) The prothonotary shall issue a subpoena for the appearance of the affiant/prosecutor and, upon written request, any other material -witness whose appearance is deemed necessary by the parties.
(c) All statutory appeals shall be heard by the Administrative Judge of the Civil Division or his designee.
(d) All parties and such witnesses as are under subpoena shall appear, with or -without counsel, at 9:30 A.M. on the date set for hearing at the courtroom of the judge designated to hear the matter.

We are constrained to conclude that these matters could only have been heard by the Administrative Judge of the Civil Division or that judge’s designee, by virtue of the Rules of the Criminal Division itself. We take judicial notice of the fact that at no time material to the three appeals now before us had the Administrative Judge of the Civil Division designated the most distinguished Administrative Judge of the Criminal Division to hear any statutory appeals. For this reason alone, we would be required to reverse the orders which sought to grant new trials or arrest judgment.

An appeal taken more than 30 days past the entry of the judgment will be granted only where extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to the appealing party has occurred. Commonwealth v. Jarema, 404 Pa.Super. 121,123-24, 590 A.2d 310, 312 (1991); Commonwealth v. Liptak, 392 Pa.Super. 468, 472, 573 A.2d 559, 561 (1990), overruled on other grounds, 533 Pa. 549, 554, 626 A.2d 138, 141 (1993). In Commonwealth v. Bassion, supra, 390 Pa.Super. at 569, 568 A.2d at 1319, we emphasized that the giving of incorrect and inaccurate information to an accused by a District Justice or her staff may, if established, constitute a breakdown in the court’s operation warranting the allowance of an appeal nunc pro tunc.

In the three appeals now before us, none of the summary conviction defendant/appellants presented any evidence in support of their requests for relief. The trial court acted solely on the untested allegations contained in the motions, none of which contained a verification as required by Pa.R.C.P. 1024. We need not decide whether the allegations included in the motions, if presented to the trial court in conformity with the applicable rules, would, if proven, constitute grounds for relief. Allegations regarding difficulties in securing or retaining employment or in gaining admission to a particular school constitute collateral consequences, at best, to the summary convictions now before us. We have said:

One can possibly contemplate many collateral consequences that may flow from a criminal conviction. To permit an appeal period to be extended whenever a defendant has failed to contemplate or has not been judicially .advised of all collateral consequences of a conviction would be unrealistic and would, to a large extent, nullify established appeal periods. We conclude, therefore, that a failure to anticipate collateral consequences is an inadequate basis on which to allow an untimely appeal.

Commonwealth v. Englert, 311 Pa.Super. 78, 82-3, 457 A.2d 121, 123-24 (1983); accord Commonwealth v. Nicholas, 405 Pa.Super. 242, 249, 592 A.2d 98, 101 (1991), appeal denied, 529 Pa. 647, 602 A.2d 858 (1992).

The Commonwealth has asked this Court to provide guidance on the issue of delay, should these matters be remanded for further proceedings. We decline to speculate whether evidence that might be placed before the trial court in the course of a de novo appeal would rise to a level of such prejudice as to bar relief. We are satisfied that the procedure utilized thus far has not been in accordance with established rules. Nevertheless, we would not foreclose the right of each defendant to first plead, and then seek to prove in an evidentiary hearing, that the facts which initially prompted the submission of a motion for new trial may form the basis for establishing a breakdown in the operation of the courts justifying the allowance of an appeal nunc pro tunc.

Accordingly, we reverse all three of the orders from which these consolidated appeals have been taken and remand the cases to the trial court for the purpose of holding evidentiary hearings on the defendants’ requests to be allowed to appeal nunc pro tunc, provided petitions for such relief are filed within sixty days of the remand of the record in these cases. See Commonwealth v. Bassion, supra, 390 Pa.Super. at 570, 568 A.2d at 1319.

Orders Reversed. Cases Remanded. Jurisdiction Relinquished.