author: CERCONE, Judge: WICKERSHAM, Judge,

text:
    479 A.2d 517
    Richard A. SLAYBAUGH and Jean T. Slaybaugh, Husband and Wife, and Steven A. Slaybaugh and Judy L. Slaybaugh, Husband and Wife, and Mt. Ridge Farms, Inc., Appellants, v. James NEWMAN, Individually, Boyd Sieg, Individually, A1 Flickinger, Individually, Shirley Nace, Individually, Joseph A. Myers, Individually, and Joseph A. Myers Real Estate, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed June 8, 1984.

      Kenneth Lee Rotz, Gettysburg, for appellants.
    Daniel M. Frey, Hanover, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the sustaining of a demurrer to plaintiffs’ complaint in trespass. Plaintiffs, appellants herein, are purchasers of real estate and defendants are five real estate salespersons and their employing agency. Appellants sued them for fraud and conspiracy arising out of their purchase of a certain tract of land in Adams County. The parties were before this Court once before when the trial court, pursuant to preliminary objections by appellees, dismissed the amended complaint for having been filed two days late. We reversed and remanded because we found no prejudice to the defendants because of the late filing. On remand, the court dismissed the complaint for failure to state a claim upon which relief could be granted.

The question here is whether a cause of action for fraud and civil conspiracy will lie against real estate salespersons and brokers who by withholding a particular piece of information, induced a purchaser of land to buy more land than he originally intended, resulting in an additional real estate commission.

Appellants were interested in purchasing farms numbered 2 and 3 of three contiguous tracts being farms numbered 1, 2, and 3, (hereafter nos. 1, 2 and 3) owned by persons named Carey, who are not parties to this suit. Each appellee is alleged to have represented to appellants that because the vendors did not want to be “stuck” with no. 1, it must be sold with nos. 2 and 3 as a unit. Because appellants were desirous of acquiring nos. 2 and 3, and only because of appellees’ representations, appellants reluctantly purchased no. 1 also. Subsequently, appellants learned that a third party, the Lobaughs, had made an offer to purchase no. 1, which offer was pending at the time of the negotiations between the parties regarding nos. 2 and 3. Newman, an appellee, then offered to act as listing agent in selling the unwanted no. 1 to the Lobaughs, who were assisted by appellee Flickinger. Appellants demand damages in excess of $10,000, plus punitive and exemplary damages for appellants’ losses allegedly incurred by having been induced to purchase no. 1. Appellants’ theory of the case is that this transaction was part of a conspiracy by appellees to cheat and defraud appellants out of their property and out of an additional sales commission for the sale of no. 1. Appellants contend that the offer by Lobaughs to purchase no. 1 was deliberately withheld from the owners the Careys, who paid a commission to appellees when appellants purchased all three farms; then, Newman “helped” appellants sell the unwanted farm to a purchaser whom he had “waiting in the wings.” The amended complaint alleges that what Newman told appellants about the terms of sale which the Careys demanded was false, and that Newman knew or should have known that the Careys were interested or were willing to sell the three farms in separate transactions, as long as they were not “stuck” with no. 1.

The facts and all reasonable inferences therefrom have been admitted by appellees’ demurrer. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974). In determining whether they are sufficient to state a cause of action, we are guided by the rule that a demurrer may be sustained only in clear cases, and all doubts must be resolved in favor of the sufficiency of the complaint. Martin v. Little, Brown and Company, 304 Pa.Superior Ct. 424, 428-9, 450 A.2d 984, 987 (1981). A demurrer will be sustained only where a plaintiff’s complaint or pleading shows with certainty that upon the facts averred therein, the law will not permit the plaintiff to recover. Matschener v. City of Pittsburgh, 36 Pa.Cmwlth. 69, 387 A.2d 954 (1978).

The lower court dismissed appellants’ complaint for failure to state a claim upon which relief may be granted because it reasoned that appellees were pursuing a legitimate business right, and cannot be found to have engaged in fraud, citing Howard v. Flanigan, 320 Pa. 569, 573, 184 A. 34, (1936). (We assume the legitimate business right to which the court referred was the procurement of real estate commissions.) As for the allegation of conspiracy, the court relied on Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979), for the proposition that (1) proof of malice, intent to injure, is essential in proof of civil conspiracy, and that (2) unlawful intent must be without legal justification. In both torts, the court reasoned that because appellees were seeking only a commission incident to their position in the real estate business, the law would permit a recovery neither for fraud nor conspiracy. We agree with the court’s order insofar as the conspiracy counts are concerned; however, with regard to the fraud counts, we are constrained to reverse and to grant appellants their day in court.

For a cause of action in civil conspiracy to succeed, it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

Applying this definition to the instant facts in the complaint, appellants have not shown in what way the appellees acted in concert. Appellants have failed to allege in what way the appellees combined or agreed, with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Appellants allege in their lengthy complaint the same behavior, of misrepresentation of the Carey’s terms as to farm no. 1, as exhibited by each and every appellee. However, appellants fail to establish how each individual allegation of fraud was part of a combination or agreement. In the case of Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714 (1958) averments that defendants’ actions regarding land specified for the planting of seedlings and the one report they made jointly to the Commonwealth concerning asserted disposition of the seedlings, supported a reasonable inference that the defendants acted in concert with the common purpose of defrauding the Commonwealth for their personal gain. Such an inference is absent in this case. Thus, the order sustaining the demurrer as to civil conspiracy is affirmed.

On the other hand, the averments of the complaint as to fraud do set forth a cause of action and appellants should be given an opportunity to substantiate them.

The essential elements of a cause of action for fraud are (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient on the misrepresentation; and (5) damage to the recipient as the proximate result, (citations omitted.) Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971).

Each salesperson is alleged to have represented to appellants that it was necessary for them to purchase all three farms as a unit, when according to appellants, the truth was that it made no difference to the Careys how the farms were sold, as long as they were not “stuck” with no. 1. And, in fact, the salespersons knew of persons who were offering to purchase the unwanted tract alone, which would have satisfied the Careys. Appellees counter that a person cannot be held liable for fraud if he or she is lawfully pursuing a legitimate business interest, citing Howard v. Flanagan, 320 Pa. 569, 184 A. 34 (1936). Additionally, appellees contend that it must follow that it was not a misrepresentation by appellees to inform appellants that in order to purchase nos. 2 and 3, they would have to purchase all of the farms being sold by Careys despite the fact appellants were not offering to buy no. 1 separately. Ap-pellees also argue that because the nature of the instrument involving farm no. 1 was an offer to purchase it, rather than an executed agreement of sale, that it is a plausible inference that the Careys rejected the Lobaugh’s offer in their desire to sell all three farms as a unit. The trial court also relied on this allegation to find that there was no prior agreement to sell no. 1.

In O’Callaghan v. Weitzman, 291 Pa.Superior Ct. 471, 436 A.2d 212 (1981), the court described as “well-settled” the principle that “the deliberate nondisclosure of a material fact amounts to a culpable misrepresentation no less than does an intentional affirmation of a material falsity.” Id., 291 Pa.Superior Ct. at 475, 436 A.2d at 214. The salespersons in the instant case are alleged to have kept from appellants a piece of information which they possessed by reason of their positions. Furthermore, appellants allege appellees knew that appellants were including no. 1 in their transaction only in order to acquire the other two tracts on the basis of appellees alleged representation that appellants had to buy all three parcels. We are not persuaded by the appellees’ reasoning that their behavior cannot be considered a misrepresentation since appellants were not offering to buy no. 1 separately. The fact that the Lobaugh’s offer to purchase farm no. 1 had not evolved into a sales agreement and the inferences to be drawn thereby, should be reserved for consideration at trial. Appellants have the burden of producing substantiating evidence to prove the fact that there were buyers for farm no. 1 who were known to appellees, but whom appellees refused to disclose. If the Careys rejected the Lobaugh’s offer, then appellees will properly present this fact as a defense in their responsive pleadings. But such an inference is not for our speculation at this point.

Moreover, we cannot agree that if a legitimate business interest is being pursued, that a person so acting cannot be liable for fraud. Such a blanket justification for any and all means to achieve business advances which are one’s legitimate interest seems to us to ignore the equally legitimate interest of the party with whom one is doing business. Additionally, the elements of fraud admit of no such justification. In fact, the trend appears still to be in the opposite direction, as in the well-known deterioration of the harsh maxim caveat emptor.

Our Commonwealth Court acknowledged this trend toward a more flexible, less formalistic duty to disclose in the context of an appeal from the revocation of real estate brokers’ licenses by the State Real Estate Commission in Matter of Real Estate License No. R.B. -001518-A, 47 Pa.Cmwlth. 236, 241, 407 A.2d 922 (1979). In that case, evidence established that a real estate salesman was informed by the seller of property that it had been vandalized; yet, the salesman only called his broker, taking no steps to inform the buyers who had negotiated a sales agreement prior to the vandalism. After the closing, the buyers took possession and discovered the damages themselves. While the Commonwealth Court refused to affirm the Commission’s finding that the petitioners had a misrepresentation, and this only because the sales agreement did not appear of record thereby precluding the Court from determining the element of inducement, the Court did state

We do not mean to suggest, however, that real estate brokers and salesmen owe no duty of candor towards buyers and other third parties outside of the normal seller/broker relationship. On the contrary, real estate brokers and salesmen may be held accountable in damages by third party purchasers for misrepresentation including the failure to disclose material information. See Shane v. Hoffmann, 227 Pa.Superior Ct. 176, 324 A.2d 532 (1974); cf. Young v. Dept. of Public Instruction, 105 Pa.Superior Ct. 153, 157, 160 A. 151, 153 (1932) (under the Act [Real Estate Brokers License Act of 1929, as amended, 63 P.S. § 431, et seq.), a broker’s responsibility “for knowingly making any substantial misrepresentation is the same whether they be made to his principal or to any other person, if they are made in an attempt to effect a purchase or sale of real estate for another person.”

The Court also, in dictum, made note of § 551 of the Restatement (Second) of Torts (1977) as applicable to that case. It says that a party to a business transaction has a duty to disclose

facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the others, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of these facts. Restatement (Second) of Torts (1977) § 551(2)(e).

We feel that Comment 1 expresses adequately why the instant action in fraud should proceed.

The continuing development of modern business ethics has, however, limited to some extent this privilege to take advantage of ignorance. There are situations in which the defendant not only knows that his bargaining adversary is acting under a mistake basic to the transaction, but also knows that his adversary, by reason of the relations between them, the customs of the trade, or other objective circumstances, is reasonably relying upon a disclosure of the unrevealed fact if it exists. In this type of case good faith and fair dealing may require a disclosure.

The complaint sets forth that appellants did not want farm no. 1. They incurred added expense because they purchased it. They purchased it, according to the complaint only because they were induced by appellees’ representation that the Careys would sell the three farms only as a unit. Appellants contend that this statement was made only to generate an additional sales commission, and that buyers were available who would have purchased farm no. 1 directly from the Careys. Appellants finally allege that the arrangement, contrary to appellees’ representation, would have been acceptable to the Careys since, then they would not have been “stuck” with farm no. 1. We find that these factual allegations make out a case of fraud.

Therefore, order of the lower court sustaining appellees’ demurrer is affirmed as to the civil conspiracy counts and reversed as to the fraud counts. Case remanded for further proceedings. Jurisdiction relinquished.

WICKERSHAM, J., filed a dissenting statement.

WICKERSHAM, Judge,

dissenting:

I would affirm on the opinion of President Judge Keith B. Quigley.

      . Slaybaugh v. Newman, 295 Pa.Superior Ct. 222, 441 A.2d 429 (1982).

      . Appellee Sieg is sued as part of the alleged conspiracy to cheat and defraud appellants in his capacity as salesperson for the Cunning-hams, who also entered into Articles of Agreement with appellants for the purchase of farm no. 1. Shirley Nace, another salesperson is named as participating in the same alleged scheme.

      . Nothing can be created out of nothing. [Lucretius: De rerum natura I]


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    479 A.2d 522
    COMMONWEALTH of Pennsylvania v. Robert LARK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1983.
    Filed June 15, 1984.

      Timothy J. Savage, Philadelphia, for appellant.
    Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   CAVANAUGH, Judge:

This is an interlocutory appeal by the appellant, Robert Lark, from the lower court’s order denying his Motion to Dismiss the Bills of Information on Double Jeopardy Grounds. We affirm.

An examination of the record reveals the following. At a jury trial before the Honorable Theodore B. Smith, Jr., the Commonwealth presented its case against the appellant on charges of murder, possessing instruments of crime, prohibited offensive weapons, and terroristic threats.

One of the Commonwealth’s witnesses, policeman Barry Wilson, was called to testify by the Commonwealth, upon the judge’s request. The prosecutor diligently attempted to alert Judge Smith to potential problems in calling Wilson at that time, and requested a discussion at sidebar with the court to explain these problems, but the request was refused. The circumstances under which Wilson was called as a witness is described in the following excerpt from the trial record.

THE COURT: Have you another witness, short witness?
MR. CAMPOLONGO: I don’t think that our next one will be all that short, sir. So it may be—
THE COURT: Well, don’t you have any witness we can use fifteen minutes because we did not give this jury the opportunity to work?
MR. CAMPOLONGO: I know, sir.
THE COURT: Is there any witness that you have just of any short duration? We can interrupt. Bring the next witness in. Next witness.
MR. CAMPOLONGO: May I see your Honor at side bar.
THE COURT: No. Call your next witness.
MR. CAMPOLONGO: There may be a problem, sir. The next witness—
THE COURT: There may be a problem? Call the next witness. We’ll iron out the problem.
MR. CAMPOLONGO: Very well, your Honor. Policeman Barry Wilson.
I believe this witness will be out of turn, sir. I must tell your Honor—
THE COURT: That doesn’t matter.
MR. CAMPOLONGO: Very well, sir.
THE COURT: Lawyers may call witnesses in or out of turn as you well know.

The assistant district attorney began questioning Wilson about his official duties as a member of the police stakeout unit. Thereafter, the prosecutor narrowed his line of questioning to Wilson’s specific duties on the date of appellant’s arrest, January 9, 1980. While the prosecutor was in the midst of this line of questioning, Judge Smith interjected himself into the inquiry and conducted the following colloquy with the witness.

BY MR. CAMPOLONGO: [Assistant District Attorney]
Q. Well, how did you happen to be in that area? Why were you detailed to that area of the electric company in North Philadelphia?
MR. SAVAGE: Objection.
THE COURT: Where was this electric company in North Philadelphia?
THE WITNESS: This was at Broad and Tioga.
THE COURT: Broad and Tioga?
THE WITNESS: Yes, sir.
THE COURT: Why were you there?
THE WITNESS: Our superiors had received information from—
THE COURT: Well, never mind what the information is. As a result of the information, why were you there?
THE WITNESS: We were there anticipating a holdup.
THE COURT: I see.
MR. SAVAGE: Objection, sir, and my motion.
THE COURT: I’ll sustain the objection. I expected the answer to be Robert Lark. That’s what he said initially. (Underscoring added).

The trial court then gave the jury instructions to disregard the last comment of the witness, Policeman Wilson. A recess was called, whereupon defense counsel, out of the jury’s presence, moved for a mistrial on the basis that the prosecution asked a question which he knew would elicit an answer prejudicial to appellant, and which could have been avoided. Judge Smith found the risk of prejudice flowing from the witness’s disclosure to be too great to be cured by the cautionary instruction to the jury, which he had given sua sponte. That is, the sum of Wilson’s testimony was that he was executing a stakeout because the police had reason to believe appellant was about to commit an offense, i.e., robbery, other than those for which he was standing trial. Therefore, the motion for mistrial was granted.

Appellant argues that retrial will violate the double jeopardy clause because there was requisite prosecutorial misconduct so as to bar retrial, and, therefore, appeals from the order denying his Motion to Dismiss. In support of his motion for dismissal, appellant contends that the prejudice caused by Wilson’s testimony was deliberately provoked by the Commonwealth’s attorney either (1) to invite mistrial of a weak case and obtain a more favorable opportunity to prosecute successfully on a later occasion, or, (2) in bad faith to harass and prejudice the defendant in the eyes of the jury.

The lower court opinion correctly set forth the proper authority by which the present motion is governed.

In Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), the Supreme Court of Pennsylvania said,

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First, there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, supra [424 U.S. 600] at 611, 96 S.Ct. [96 S.Ct. 1075] at 1081 [47 L.Ed.2d 267 (1976) ]. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, supra [432 U.S. 23] at 32, 97 S.Ct. [2141] at 2147 [52 L.Ed.2d 80 (1977) ]; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Id., 490 Pa. at 341, 416 A.2d at 500.

Appellant attempts to show prosecutorial misconduct on both of the grounds enunciated in Commonwealth v. Starks, supra. He does so by arguing that Judge Smith’s questions were the logical outgrowth of the prosecutor’s earlier line of questioning, which the prosecutor knew would inevitably lead to objectionable testimony. Thus, the contention is that the prosecutor “set the stage” for the court’s inquiry, and, therefore, he must accept the responsibility for the question and answer which caused the mistrial. However, appellant does not show how the intent to provoke a mistrial can be imputed to the district attorney, vis-a-vis Judge Smith’s question and answer. The relevant portion of the prosecutor’s earlier questioning that allegedly “set the stage” appears in the record as follows:

Q. [Assistant District Attorney] What assignment did you receive?
A. [Policeman Wilson] I was assigned—
MR. SAVAGE: Objection.
THE COURT: What’s your objection?
MR. SAVAGE: It’s irrelevant as to what his testimony is in this case.
THE COURT: I don’t know whether it’s relevant or not. You may renew your objection if it turns out to be and take the proper step. You are overruled. You may answer.
THE WITNESS: We were — had a plainclothes assignment that day in regards to Mr. Robert Lark.

Appellant disregards the fact that the prosecutor’s original question, “What assignment did you receive?”, did not elicit the objectionable response that was obtained by Judge Smith’s question. There is no question that the witness was called to give relevant and admissible evidence as to the apprehension of Lark. Defense counsel did object to the question originally asked by the prosecutor, but the basis for that objection was that it was irrelevant, which objection was overruled. Logically, it would be reasonable for defense counsel, the prosecutor, and Judge Smith to expect the same answer, not a different one, where a question was rephrased at a later point in questioning the same witness. Therefore, we find that appellant’s contention that Judge Smith’s question was imputable to the assistant district attorney is wholly meritless. To extrapolate further, as appellant does, and contend that not only was Judge Smith’s question imputable to the prosecutor, but that it was asked in order to invite a mistrial of a weak case or, in bad faith to harass or prejudice the defendant, is equally meritless. See Commonwealth v. Mitchell, 488 Pa. 75, 84, 410 A.2d 1232, 1237 (1980) (court rejected claim that prosecutor’s legitimate question was a ploy to elicit inadmissible and prejudicial testimony).

Furthermore, appellant’s contention that the prosecutor deliberately provoked a mistrial of a weak case in order to obtain a more favorable opportunity to prosecute on a later occasion is not supported by the record. The evidence simply does not support an inference that the Commonwealth would desire to invoke a mistrial because its case was weak. See Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981). The Commonwealth was prepared to call two witnesses to testify that appellant admitted to each of them that he murdered the robbery victim, Tae Bong Cho, who was the principal witness against him in a robbery charge. There was additional evidence that appellant had been convicted in absentia (after breaching a condition of bail) of the robbery of Cho. Additionally, the trial court opined that the evidence was circumstantially sufficient “to establish a design by defendant to defeat the earlier charge [robbery] against him by any means, and to obstruct justice even if by physical violence.” Lower court opinion at 3. Even considering appellant’s challenge to the credibility of the two witnesses, the lower court concluded that in view of all the evidence, the questionable credibility would not be nearly so “fatal a weakness as to prompt the Commonwealth’s deliberately seeking to have its case aborted.” Id. at 4. After careful examination of the record, we find no error in the lower court’s conclusion.

Appellant also argues that evidence of the prosecutor’s past conduct directed toward the appellant was relevant to demonstrate his bad faith motivation. However, since we find no basis for double jeopardy as alleged, any past conduct of the prosecutor toward this appellant is irrelevant.

Order affirmed.

      . The appeal from the Order denying appellant’s Motion to Dismiss is as an interlocutory appeal as of right pursuant to Pa. R.A.P. 311(a)(5).

      . The denial of a pretrial application to dismiss an information on the ground that the retrial will violate the defendant’s right not to be placed in double jeopardy may be appealed before the retrial is held. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Ross, 295 Pa.Super. 409, 441 A.2d 1298 (1982); U.S. Const. Amend. 5, Amend. 14; Pa. Const. Art. I, § 10.

      . 18 Pa.C.S. § 2502.

      . 18 Pa.C.S. § 907.

      . 18 Pa.C.S. § 908.

      . 18 Pa.C.S. § 2706.

      . The Commonwealth asserts that the appropriate standard for determining prosecutorial misconduct in this case is that announced in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). That case definitively states that the "circumstances under which such a defendant [a criminal defendant who successfully moves for a mistrial] may invoke the bar of double jeopardy in a second attempt to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Thus, Oregon v. Kennedy, supra, effectively strikes one of the two grounds under Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), upon which a defendant may assert prosecutorial misconduct. That is, after Oregon v. Kennedy, an allegation of prosecutorial misconduct predicated on the ground of conduct undertaken in bad faith to prejudice or harass the defendant, absent a showing of intent to provoke a mistrial by the prosecutor, is deficient.
      The order denying appellant’s application to dismiss was handed down on March 30, 1982. The appeal of that order was perfected on April 2, 1982; Oregon v. Kennedy was decided on May 24, 1982. The determination of whether a new constitutional rule should be applied retroactively is a matter of judicial discretion, August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981). Our court has decided to apply Oregon v. Kennedy, supra, prospectively. See Commonwealth v. Riffert, 322 Pa.Super. 230, 469 A.2d 267 (1983); Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983); Commonwealth v. Arelt, 308 Pa.Super. 236, 454 A.2d 108 (1982); Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983); Commonwealth v. Freedman, 317 Pa.Super. 207, 463 A.2d 1158 (1983). However, we do not know whether our Supreme Court will retain Commonwealth v. Starks, supra, as the applicable standard in Pennsylvania. In a case factually similar to the one at bar, Commonwealth v. Beaver, supra, this court held that Oregon v. Kennedy is not applicable and is not retrospective where the appeal was perfected prior to the Oregon v. Kennedy decision and the motion was decided under the pre-Oregon v. Kennedy standard. In light of Commonwealth v. Beaver, supra, it is evident that the court below used the proper pre-Oregon v. Kennedy standard in considering prosecutorial misconduct. However, even if the Oregon v. Kennedy standard were applied, appellant’s contention would be meritless for the reasons set forth in this opinion.


author: ROWLEY, Judge:

text:
    479 A.2d 526
    COMMONWEALTH of Pennsylvania, Appellant, v. Lee Charles BROADWATER.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed June 15, 1984.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.

      Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellant.
    Timothy J. Reese, Lancaster, for appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth from the trial court’s order granting appellee’s claim for relief pursuant to the Post Conviction Hearing Act (hereinafter “PCHA”). Appellee, Charles Broadwater, filed a PCHA petition claiming that ineffective assistance of trial counsel resulted in: 1) his entry of a guilty plea that was not knowingly and voluntarily tendered, and 2) impropriety in the sentencing procedure. The PCHA court granted relief in the form of vacating appellee’s sentence and granting him a new trial. The Commonwealth has appealed. We reverse.

On March 5, 1972, several hours after killing a man in Schuylkill County, appellee was stopped by police officers in Lancaster County because of his erratic driving. He was given a citation for “underage drinking”. During the course of the officers’ investigation, appellee managed to disarm the police officers and confiscate their weapons. He then forced the two officers to drive him around Lancaster County while he sat in the back seat of their vehicle pointing one of the loaded revolvers at the backs of their heads. Later that morning, however, the officers subdued appellee and placed him under arrest. Subsequently, appel-lee was charged in Lancaster County with kidnapping, pointing a deadly weapon, violation of the Uniform Firearms Act and two counts of robbery.

Appellee, on September 17,1973, immediately prior to the commencement of trial, entered a counseled guilty plea in Lancaster County to the charges of (1) pointing a deadly weapon, (2) one count of armed robbery, and (3) kidnapping. The plea was entered as part of a plea bargain whereby the Commonwealth agreed to nol prosse the additional charges of robbery and violation of the Uniform Firearms Act. Immediately after entry of the plea, appellee was sentenced. He was sentenced to five to ten years imprisonment for robbery; one to two years imprisonment for kidnapping (consecutive); and one year for pointing a deadly weapon (concurrent). The Lancaster County sentence for robbery was made consecutive to a ten to twenty year sentence for murder imposed by the Court of Common Pleas of Schuylkill County.

Appellee filed a pro se PCHA Petition on March 25, 1981, claiming that ineffective assistance of counsel resulted in an unlawfully induced guilty plea. On March 26, 1981, new counsel was appointed to represent appellee. A hearing on the petition was held on December 8, 1981. Three months later appellee became eligible for parole from his Schuylkill County sentence. Following the vacation of his sentence in Lancaster County, appellee was released on bail on the Lancaster County charges and was released on parole from the Schuylkill County sentence.

The Commonwealth claims on appeal that the trial court erroneously allowed appellee to withdraw his guilty plea in light of the court’s finding that trial counsel was not ineffective. Therefore, the Commonwealth contends, appel-lee was entitled at most to relief in the form of resentenc-ing, and not to relief in the form of withdrawal of his guilty plea.

It is well settled that where a guilty plea has been entered, all grounds of appeal are waived except challenges to the voluntariness of the plea and the jurisdiction of the court. Charges of ineffectiveness of counsel in connection with a guilty plea serve as a basis of relief only upon a showing of a causal nexus between the alleged ineffectiveness and the entry of an unknowing or involuntary plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978); Commonwealth v. Williams, 496 Pa. 486, 437 A.2d 1144 (1981); Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340 (1983).

The test of trial counsel’s ineffectiveness is also well established. The initial inquiry is whether the matter counsel is charged with failing to pursue had arguable merit, and if so, whether counsel’s failure to pursue it had some reasonable basis. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Fultz, supra; Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. McFadden, 300 Pa.Super. 299, 446 A.2d 624 (1982).

Instantly, the trial court, while granting appellee the relief of vacating his sentence and a new trial, concluded that the plea colloquy met pre Ingram Standards, and also determined “that counsel’s alleged ineffectiveness was not the cause of [appellee’s] guilty plea” (Opinion, at 2). The PCHA court granted the relief, however, on the basis of four factors: (1) its opinion that the plea colloquy contained a garbled statement about the maximum possible sentence; (2) a pre-sentence report was never produced, and if it had been produced it might have reduced the sentence; (3) the age of the accused, which was nineteen at the time of the sentencing; and (4) the failure of the record to show a “proper allocution”. Reasons (2), (3) and (4), obviously, refer only to the validity of appellee’s sentence. Reason (1) is the only one that has any relevance to the validity of the plea.

We note that none of these issues is waived, as the Government contends, for failure to file post-sentence motions or take a direct appeal. Although, generally, issues that could have been raised on direct appeal and are not so raised are considered waived, the waiver rule does not apply when the issues are incorporated in a petition for PCHA relief grounded on ineffectiveness of counsel. Commonwealth v. Dimitris, 484 Pa. 153, 398 A.2d 990, on remand 267 Pa.Super. 137, 406 A.2d 556 (1979); Commonwealth v. Belleman, 300 Pa.Super. 209, 446 A.2d 304 (1981). Here, effectiveness of prior counsel is being raised at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the accused. Therefore, there is no waiver. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Pittman, 295 Pa.Super. 234, 441 A.2d 436 (1982).

In reviewing the PCHA court’s grant of relief, we must determine whether the court’s determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Stanton, 294 Pa.Super. 516, 526, 440 A.2d 585, 590 (1982); see also Commonwealth v. Costanzo, 309 Pa.Super. 267, 455 A.2d 153, 154 (1983). We therefore review the record to see whether it supports the trial court’s determination that appellee was entitled to vacation of his sentence and a new trial.

We find that the court erred in setting aside appellee’s plea and granting him a new trial. Trial counsel was not ineffective with respect to appellee’s entry of a guilty plea but, even assuming such ineffectiveness, the trial court correctly determined such ineffectiveness did not cause appellee’s plea to be entered. In addition, we are not persuaded that trial counsel was ineffective for failing to secure and present a copy of a pre-sentence report, prepared in Schuylkill County, to the sentencing judge in Lancaster County. Consequently, the PCHA court erred in vacating appellee’s sentence.

[61 Initially, we point out that appellee, as a result of a plea bargain, entered a plea of guilty to a series of violent crimes on September 17, 1973, more than ten years ago. Some seven and one-half years later, on March 25, 1981, appellee, for the first time, challenged the validity of his plea and sentence and the constitutional effectiveness of his counsel. In Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), Mr. Justice (later Chief Justice) Roberts, in a concurring opinion joined by then Chief Justice O’Brien and Justice (now Chief Justice) Nix, expressed the opinion that an unexplained delay of three years and seven months by appellant in challenging his guilty plea barred consideration of his claim on the merits. Id., 498 Pa. at 354, 446 A.2d at 597. Where, as here, the delay is twice as long, we find appellee’s challenge to the entry of his guilty plea clearly unreasonable. Recognizing, however, that Justice Robert’s opinion in Shaffer did not command a majority of the Supreme Court, we consider the merits of appellee’s claim.

In considering a petition to withdraw a guilty plea after sentencing, it is well established that there must be a “showing of prejudice on the order of manifest injustice” before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). A more substantial burden must be sustained when an attempt to withdraw a guilty plea is made after sentencing, as opposed to before sentencing, because of the recognition that a plea withdrawal can be used as a sentence-testing device. Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982); Commonwealth v. Starr, 450 Pa. at 489, 310 A.2d at 594.

Appellee’s PCHA petition alleged that his guilty plea was not validly tendered because it was not knowing and voluntary. At the guilty plea colloquy, the following exchange between the trial judge and appellee ensued:

THE COURT: On these various charges of Robbery, Robbery carries a penalty of a maximum penalty of ten thousand dollars fine and twenty years in jail, do you understand that?
DEFENDANT: Yes, sir.
THE COURT: That could be imposed on each count and with reference to each of these charges they could be consecutive and not concurrent as to each other and also to any charges for which you are now serving a sentence, do you understand how a sentence can be imposed?
DEFENDANT: Yes, sir.
THE COURT: Or you could have the maximum sentence which I am going to inform you as one to two years which I have determined that would be the maximum sentence, do you understand that?
DEFENDANT: Yes, sir.
THE COURT: On pointing a deadly weapon the maximum under our Act of Assembly is five hundred dollars fine and one year in jail, do you understand that?
DEFENDANT: Yes, sir.
THE COURT: Mr. Broadwater, are these pleas that you are making today or this plea of guilty which you are asking the Court to accept, is that your own free will and desire and is it voluntarily and intelligently made by you with the advice of counsel?
DEFENDANT: Yes, I talked to my attorney and we decided it would be the best thing.
THE COURT: Are you satisfied with the services rendered to you by Mr. Patton, your defense counsel?
DEFENDANT: Yes, sir, I am.

N.T. September 17, 1973 at 5-6.

We are not required to review challenges to a guilty plea colloquy merely to determine whether all “legalistic formulations” have been complied with. Technicalities are not to be exalted over substance. On the contrary, the focus of the inquiry is whether, in fact, the accused was misled or acted under the influence of inaccurate or incorrect information. That determination is to be made on the basis of all the information disclosed by the record. When we review the proceeding passage from the colloquy, it is clear that appellee understood that there was a possibility that his sentence for robbery could be ten to twenty years imprisonment added to the sentence he was then serving on other charges.

If we were to limit our review, as appellee urges, to the one emphasized question and answer, we could not fault the trial court’s conclusion that there may have been some uncertainty concerning the possible maximum sentence. However, we are to examine the entire record. In view of the totality of the circumstances disclosed therein, it is clear that there was no confusion, uncertainty or misunderstanding on the part of appellee. Later in the proceedings, the judge again asked appellee if he understood his rights, and appellee then questioned the trial judge. In his question, appellee showed that he had correctly computed his total Lancaster and Schuylkill County sentences as being sixteen to thirty-two years imprisonment. His continued silence for over seven (7) years in light of his immediate understanding of not only his Lancaster County sentence but its impact on his Schuylkill County sentence substantially weakens his present claim that he misunderstood. Appellee understood that he was pleading guilty to three charges. His trial counsel testified, without contradiction, that he had, prior to the plea hearing, gone over with appellee each charge, including, inter alia, the possible maximum sentence for each. It is clear to us, that under the total circumstances disclosed by the entire record, that the emphasized question and answer refer only to the kidnapping charge and, furthermore, that appellee understood it. In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Commonwealth v. Rodgers, 465 Pa. 379, 350 A.2d 815 (1976); Commonwealth v. Enty, 442 Pa. 39, 271 A.2d 926, cert. denied 402 U.S. 913, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971); Pa.R.Crim.P. 319. The validity of a plea should be determined by examining the totality of the circumstances surrounding the entry of the plea. Commonwealth v. Shaffer, 498 Pa. at 350-351, 446 A.2d at 595; Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536, 538 (1982).

The transcript of the plea colloquy herein shows that appellee was aware of the nature and elements of the charges against him and the consequences of those charges. Before discussing the possible range of sentences, the judge described each offense seriatim, and listed the facts underlying the offense in relation to the charge against appellee. Appellee argues that the judge’s explanation of the minimum and maximum sentences led him to believe that he could be sentenced to a maximum of one to two years for the offenses charged. This argument fails. Although the judge’s explanation of the potential sentences for each offense may have been confusing, we do not perceive that his statements actually misled appellee regarding his sentence. The judge advised appellee that the sentences could run consecutive to each other on each charge and further, that they could be consecutive to the sentence he was then serving pursuant to his conviction in Schuylkill County. Moreover, it is clear that appellee understood the possible range of sentences since he himself accurately described the number of years for which he could be imprisoned as ranging from sixteen to thirty-two years in his interrogatory to the judge at the close of his hearing. If he was confused about the entry of a guilty plea, the sentence imposed, or the conduct of his attorney, evidence of his concern is certainly not contained in the record of his hearing. Indeed, the transcript of the colloquy demonstrates that he was satisfied with the services of his attorney. See Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980).

On the record of this case, we find an absence of that manifest injustice required to justify the withdrawal of a guilty plea after sentencing. Consequently, the contention that trial counsel rendered ineffective assistance by failing to challenge the plea must necessarily fail. Trial counsel, arguably, could have challenged the guilty plea colloquy as not complying with guidelines set forth in Pa.R.Crim.P. 319 and case law before Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). See Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241 (1971). Nonetheless, in light of our disposition of this claim, counsel’s failure to pursue such a challenge certainly had a reasonable basis. Therefore, the PCHA court erred in granting appellee a new trial on the basis of the record in this case. Moreover, we find the court’s grant of a new trial inconsistent with its specific determination that trial counsel’s ineffectiveness did not cause appellee to enter an unknowing and involuntary plea.

We next address trial counsel’s alleged ineffectiveness regarding his failure to present a pre-sentence report that had been prepared in Schuylkill County, to the sentencing judge in Lancaster County. After appellee entered his plea, the sentencing judge asked defense counsel about the pre-sentence investigation and report in Schuylkill County. Counsel replied that he did not have a copy of the report and that he was uncertain as to whether he had access to it. Counsel requested that sentencing be deferred so that the judge could review the report and he stated that he would attempt to obtain it. He admitted that he had not read the report and that he was not sure whether it was beneficial. The transcript of the hearing indicates that trial counsel advised the judge of appellee’s background, including his problems with alcohol abuse. Counsel also advised the judge that he had seen several psychological reports that had been prepared by the doctor who had performed psychological tests on appellee in Schuylkill County, but that the reports did not reveal a psychosis that would justify a plea of not guilty by reason of insanity. The judge indicated that he viewed the report and sentence in Schuylkill County as a matter separate from that in Lancaster County and he stated further that it was unlikely that anything in the report could change his evaluation since he was aware of appellee’s background. As a result, he did not . defer sentencing until he had an opportunity to review the report, nor did he order an independent investigation in Lancaster County. Instead, he proceeded to sentence appellee on the pending counts.

We analyze appellee’s claim that trial counsel was ineffective for failing to present the pre-sentence report to the judge in the same manner as a claim that trial counsel was ineffective for failing to call a particular witness or produce certain evidence at trial. The failure to call witnesses is not per se ineffectiveness of counsel. Commonwealth v. Robinson, 487 Pa. 541, 546, 410 A.2d 744, 746 (1982). In order to establish that trial counsel was ineffective for failing to call a certain witness, it must be shown not only that counsel had knowledge of the alleged witness, but also that the missing testimony would have been helpful. See Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982) and cases cited therein.

In this case, the record at the PCHA hearing and the transcript of the plea colloquy reveal that counsel knew that a pre-sentence report had been prepared in another county and he was aware of its general contents. However, counsel had not read the report and thus, he was not certain that its contents would have been beneficial regarding the sentencing of appellee in Lancaster County. At the PCHA hearing, counsel testified that he felt it was in the discretion of the trial judge as to whether the report was necessary.

Trial counsel’s failure to present the pre-sentence report on appellee’s behalf could constitute ineffectiveness only if the contents of the report could have influenced the trial judge to impose a lesser sentence. However, the pre-sen-tence report was not introduced into evidence at the PCHA hearing, nor did appellee state in what manner the pre-sen-tence report could have aided his case. The record is devoid of a positive demonstration that the pre-sentence report could have effected the terms of sentence imposed. Under these circumstances, we cannot find that trial counsel was ineffective for failing to present the report to the sentencing judge. See Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Therefore, appellee’s sentence in Lancaster County was proper and will not be vacated.

Order reversed.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.

      . Our review of the record in this case reveals that counsel properly advised the sentencing judge that appellee was only nineteen. Furthermore, the record does not demonstrate that appellee was denied his right of allocution prior to sentencing. Thus, counsel could not have been ineffective regarding these claims, and neither claim was sufficient to justify the grant of PCHA relief.

      . It is within the discretion of the trial judge to order a pre-sentence investigation, and at the time appellee was sentenced, there was no requirement that the judge place upon the record his reasons for dispensing with the pre-sentence investigation and report, nor was there a requirement that the judge provide an on-the-record rationale for sentencing. See Commonwealth v. Frankhouser, 491 Pa. 171, 420 A.2d 396 (1980).


author: WIEAND, Judge:

text:
    479 A.2d 534
    Dante G. BERTANI, Receiver of B & R Lumber Company, and William G. Boyle, Executor of the Estate of Edgar W. Rugh and Ailsa P. Rugh, Assignees v. C.E. BECK and Amoco Production Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed June 15, 1984.
    Reargument Denied Aug. 17, 1984.
    Petition for Allowance of Appeal Denied April 4, 1985.

      James R. Cascio, Somerset, for appellants.
    James R. Mall, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

The decision in this case rests upon the interpretation to be placed upon paragraph 6 of an oil and gas lease covering 13,604 acres of land in Clinton and Centre Counties. The lease, negotiated by C.E. Beck, agent for Amoco Production Company (Amoco), and executed on October 26, 1977, required Amoco to pay an initial consideration therefor of $13,604. In addition, Amoco was to pay royalties consisting of one-eighth (⅛) of the net proceeds derived from extracting and marketing certain enumerated minerals. Although the term of the lease was stated to be ten years, paragraph 6 provided:

If operations for drilling are not commenced on the leased premises, or on acreage pooled therewith as above provided, on or before one year from this date, this lease shall then terminate as to both parties unless Lessee on or before the expiration of said period shall pay or tender to Lessor, or to the credit of Lessor in Mellon Bank at Ligonier, Pennsylvania 15658 or any successor bank, the sum of Thirteen Thousand, Six Hundred and Four Dollars ($13,604.00), hereinafter called the “delay rental” which shall extend for twelve (12) months the time within which drilling operations or mining operations may be commenced. Thereafter, annually, in like manner and upon like payments or tenders the commencement of drilling operations or mining operations may be further deferred for periods of twelve (12) months each during the primary term. Drilling operations or mining operations shall be deemed to be commenced when the first material is placed on the leased premises or when the first work, other than surveying or staking the location, is done thereon which is necessary for such operations. (Emphasis added)

It is undisputed that neither drilling nor mining operations were commenced within the first year. It is also clear that a “delay rental” was not paid before the expiration of the first year.

The owner of the demised premises was B & R Lumber Company, a corporation owned by Ailsa P. Rugh (53.846%) and the Estate of Edgar Rugh, deceased (46.154%). On November 18, 1977, Dante G. Bertani became receiver of the corporation by agreement. Because the lease had been negotiated and executed on behalf of the corporation by Ailsa Rugh alone prior to appointment of the receiver, Bertani determined that he should obtain from the Court of Common Pleas of Westmoreland County a decree confirming the lease. This caused delay. While the confirmation proceedings were pending, the first year of the lease expired without the commencement of drilling or mining by the lessee. The court, when it ultimately decreed confirmation, left it to the parties to make their own agreement regarding the uncertainty and delay which had been caused by Bertani’s refusal to proceed without court confirmation. The corporation’s interest in the lease was subsequently assigned to Ailsa Rugh and the Estate of Edgar Rugh, deceased, in shares consistent with their respective interests in the corporation. Continuing negotiations pertaining to the amount of delay rentals to be paid proved unsuccessful.

On or about November 1, 1979, Amoco tendered separate drafts to the lessors in the total amount of $20,405 as payment of delay rentals due under paragraph 6 of the lease agreement for the years 1978-79 and 1979-80. This amount reflected a credit for a delay of six months, which Amoco contended had been caused by the confirmation proceedings instituted by the receiver. The lessors refused this tender and insisted upon payment in full ($27,208) for two years’ delay. When Amoco refused to pay the amount demanded, the lessors commenced an action in assumpsit to recover $27,208. Extensive discovery, which demonstrated the facts aforesaid, was followed by cross motions for summary judgment. The trial court concluded that Amoco was obligated by the terms of the lease to pay delay rental for two years and, therefore, entered summary judgment in favor of the lessors. Amoco appealed. We reverse.

A summary judgment may be granted under Pa.R.C.P. 1085(b)

if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

In determining whether summary judgment shall be entered, the following principles have application:

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa.Super 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Shader v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297-298, 467 A.2d 330, 333 (1983). See: Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983). In an action based upon interpretation of a lease agreement, where the terms are unambiguous, summary judgment is appropriate. See: Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672, aff’g 14 D. & C.2d 459 (1958). See generally: Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982).

The unambiguous language of paragraph 6 established that the lease would terminate on October 26, 1977 unless drilling or mining commenced prior thereto or, in the alternative, Amoco paid prior thereto the sum of $13,604 as “delay rental.” If neither of these events occurred, the lease was to terminate. In that event, the initial payment of $13,604 was forfeited, and neither party had any further obligation under the lease. The lease did not require Amoco to pay delay rentals. If it failed to do so, the only effect was a termination of the lease. After the lease had been terminated, Amoco was not required to make any further payments. Therefore, the trial court was clearly in error when it caused judgment to be entered against Amoco for $27,208, representing “delay rental” for two additional years.

It is correct, of course, that Amoco attempted to revive the lease agreement by tendering the sum of $20,405, which it deemed a fair compromise of the dispute concerning delay and monies due. This tender, however, was rejected by the lessors. Consequently, the attempted revival of the lease was unsuccessful. The tender of $20,405 did not constitute either a promise to pay or an estoppel requiring future payment of monies under the defunct lease agreement.

In Glasgow v. Chartiers Oil Co., 152 Pa. 48, 25 A. 232 (1892), the Supreme Court had occasion to interpret the following clause in an oil and gas lease:

Provided, however, that this lease shall become null and void and all rights hereunder shall cease and determine, unless a well shall be completed on the premises within one month from the date hereof, or unless the lessee shall pay at the rate of one hundred dollars monthly in advance for each additional month.

There, as here, the lessors argued that the language of the clause required the lessee to pay monthly “delay rentals.” The Supreme Court held that the clause did not impose upon the lessee an obligation to make monthly payments. The Court said:

There is no express covenant, promise or undertaking by the lessee to be found anywhere in the agreement. A covenant to operate within a reasonable time might be implied from the nature of the instrument, but the lessee has been careful to make no express promise to operate the lease, or to do anything towards the development of the land. If he does nothing, the penalty for his inaction is fixed. It is the forfeiture or loss of his rights under the agreement. But, if he thinks it an object to do so, he may prevent the assertion of this forfeiture by paying one hundred dollars in advance of the first day of the next month after the date of the contract, and, upon such payment, the right of forfeiture is postponed one month. This he may do month after month as long as he pleases, or until the end of five years. If, however, he puts down no well during the first month, and pays no money in lieu of it, his rights are at an end, and the lessor may assert the forfeiture.
[The legal effect of the term] is to confer on the [lessee] the right to explore for oil on the tract described. If he does not exercise this right within one month, it is lost to him, unless he chooses to pay one hundred dollars in advance as the price of another month’s opportunity to explore. If he does exercise it, and finds nothing, he is under no obligation to continue his explorations. If he explores and finds oil or gas, the relation of landlord and tenant or vendor and vendee is established, and the tenant would be under an implied obligation to operate for the common good of both parties, and pay the rent or royalty reserved. In this case, he did nothing in the way of development, and, after the payment of one hundred dollars per month for the delay, for a short time, he ceased to pay.
The [lessor] contends that, because [lessee] might pay under the terms of the contract, he may be compelled to pay. But payment was the means provided by the contract by which the exercise of the right of the lessor to assert a forfeiture could be postponed. If the lessee did not wish to postpone the exercise of such right, he had only to refrain from making the payment____ Unfortunately for the plaintiff in this case, he has no covenants on which to sue.

Id., 152 Pa. at 51-52, 25 A. at 232 (emphasis added). The same interpretation has been given to similar forfeiture clauses in other leases. See: Hays v. Forest Oil Co., 213 Pa. 556, 62 A. 1072 (1906); Jackson v. American Natural Gas Co., 31 Pa.Super. 408 (1906); McKee v. Colwell, 7 Pa.Super. 607 (1898). Compare: McMillan v. Philadelphia Co., 159 Pa. 142, 28 A. 220 (1893) (despite limitations on lessees’ duty to pay, the language of the lease demonstrated clearly that lessees had undertaken an obligation to commence operations or pay).

The language of the agreement in the instant case is unambiguous. The facts, moreover, are undisputed. Neither the lease agreement nor Amoco’s conduct was sufficient to create an obligation to pay delay rentals. Paragraph 6 of the lease was intended to confer upon Amoco the right to explore for the presence of minerals. If none were discovered, Amoco was free to allow the lease to be forfeited by the expedient of not paying a “delay rental.” If Amoco wished to postpone the forfeiture, however, it could do so by paying a delay rental before the yearly period had expired. Paragraph 6 was not a covenant to pay “delay rental.” It did not create a right in appellees to insist upon being paid delay rental. The option was vested in Amoco. When it did not make the payment provided in paragraph 6, the lease was terminated. Thereafter, it could be revived only by mutual agreement. That no such agreement was reached is undisputed.

Judgment reversed and now entered in favor of appellants.


text:
    479 A.2d 537
    In re Rodney J. CUMMINGS ESTATE. Appeal of Kenneth CUMMINGS, Executor.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1984.
    Filed June 22, 1984.

      Melvin E. Newcomer, Lancaster, for appellant.
    Robert A. Longo, Lancaster, for participating party.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROWLEY, Judge:

Kenneth Cummings (appellant), who is one of the brothers of decedent, appeals from the judgment entered in favor of Patricia Schwartz Cummings (Patricia), appellee, for a statutory share of the decedent’s estate as his surviving common-law wife. Appellant is named both as a beneficiary and the executor of the estate in decedent’s last will and testament. The only question before us is whether the trial court erred in determining that a common-law marriage existed between appellee and the decedent. Upon a thorough review of the record in this case, we reverse.

Rodney J. Cummings died testate on June 24, 1979. His will, dated February 5, 1973, named his brother, Kenneth Cummings, as Executor and left his estate to his three brothers, including appellant, in equal shares. Patricia filed an election to take a statutory share of decedent’s estate under the Probate, Estate and Fiduciaries Code, 20 Pa.C.S.A. § 2203, on September 17, 1979. The appellant then filed a petition to vacate the spousal election and a hearing was held on April 9, 1981 before the Court of Common Pleas in Clinton County, at which time witnesses testified for both parties.

The factual findings of the trial court are undisputed on appeal. Patricia met Rodney Cummings in 1972 on a blind date during the time that both parties resided in Lancaster County, Pennsylvania. The parties continued dating until December 1974, when Patricia moved into decedent’s residence in Manheim, Lancaster County, along with her two sons. The Court specifically found that the parties were not married to each other when Patricia moved into Rodney’s residence. Furthermore, the court found that they did not hold themselves out as husband and wife during the time they lived in Manheim. On August 9 or 10, 1975, Patricia and Rodney dined out at the Mansion House Restaurant. In the course of their conversation, Rodney remarked that it had been three years since they had met, that he was happy, and that he felt like he was a married man. He then gave Patricia a diamond ring, which she accepted and he told her to wear it whenever she left the house.

Decedent was employed with Pennsylvania Power and Light Company (PP & L) and worked primarily in Clinton County, although he returned to his home in Manheim on weekends. In 1977, decedent purchased a home in Renovo, Clinton County, titled in his own name. He telephoned Patricia and stated: “I bought you a home.” Patricia voiced her resistance to the idea of moving to Clinton County but Rodney insisted: “You are my wife. You are going to move.” Thereafter, Patricia moved to Rodney’s newly acquired home in Renovo with her two sons and they resided there until Rodney’s death. While they lived in Renovo, Rodney introduced Patricia as his wife in conversations with George R. Schroat, an employee of PP & L, William W. Hepner, a neighbor for whom Rodney did yard work, and Paul F. Maxwell, the football coach at the school that Patricia’s sons attended. Two of decedent’s co-workers at PP & L, Leroy Hack and Jonathan Rishel, were aware that Rodney and Patricia were not legally married. However, both workers stated that Rodney often referred to Patricia as “my wife” or “my woman” and that he referred to Patricia’s sons as “my boys”. Mr. Rishel encouraged Rodney to solemnize the marriage but Rodney’s response was: “I don’t need a piece of paper to prove I’m married. I am married.”

However, Rodney told his brother Kenneth Cummings, on numerous occasions, that he was not married to Patricia. The last time he told Kenneth that he was not married was on June 1, 1979, when he returned to Lancaster County for a relative’s funeral. On the day of the funeral, Rodney also told his father Richard Cummings, as he had on other occasions, that he was not married to Patricia and that he did not intend to marry her. Patricia received benefits from the Pennsylvania Department of Public Welfare from 1969 until 1977 when she moved to Clinton County, at which time she withdrew her claim. Patricia would have been ineligible for welfare benefits if she were married. While Patricia resided with Rodney, she continually received welfare benefits for her children, and on May 3, 1979, she signed a review form from the Department of Public Welfare wherein decedent was referred to as her “paramour”. During the entire time Patricia lived with Rodney, they did not have joint checking or savings accounts and Patricia did not change her name on her driver’s license, voter registration, auto registration or social security cards. Furthermore, Rodney filed United States Individual Income Tax Returns for the years 1975 through 1978 listing himself as an unmarried head of household and in 1978 he completed a credit application wherein he indicated that he was not married.

In its conclusions of law, the trial court determined that the parties entered into a common-law marriage when they moved to Renovo, Clinton County in 1977. The court held that the parties cohabitation and reputation as husband and wife in the Renovo area raised a presumption that they entered into a marriage contract. Accordingly, the court found that Rodney’s statements to Patricia that he bought her a home and she was his wife, corroborated by the parties cohabitation and reputation in the community, established their intent to enter into a marriage relationship. The court did not perceive that the evidence offered at the hearing that contradicted the existence of a common-law marriage was sufficient to rebut the presumption of marriage.

Appellant argues alternatively: 1) that no presumption of common-law marriage was created by evidence of the parties’ cohabitation and reputation under the circumstances of this case, and 2) that if the evidence was sufficient to raise a presumption of marriage, the presumption was rebutted by evidence that the decedent never intended to be married to appellee. We find appellant's first argument to be persuasive.

Our scope of review in an appeal from the final decree of the orphans’ court is very narrow. The findings of the court, supported by competent evidence of record are entitled to the weight of a jury’s verdict; such findings are controlling and the court’s decree should not be reversed unless the court abused its discretion or committed an error of law. Adoption of S.H., 476 Pa. 608, 611, 383 A.2d 529, 530 (1978); see Hankin v. Hankin, 279 Pa.Super. 179, 196, 420 A.2d 1090, 1099 (1980). The resolution of conflicts in the evidence presented is for the trier of fact. In Re Estate of Garges, 474 Pa. 237, 243, 378 A.2d 307, 310 (1977). We recognize that the decree of the orphans’ court may not be disturbed unless the court applied an incorrect legal standard, see Adoption of S.H., supra. However, we note that whether a person has been legally married to another is a mixed question of law and fact. See Baker v. Mitchell, 143 Pa.Super. 50, 55, 17 A.2d 738, 741 (1940).

Under Pennsylvania law, marriage is a civil contract. No specific form of words is required to create the contract; all that is necessary is “proof of an agreement to enter into the legal relationship of marriage at the present time.” Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171 (1980); In Re Estate of Garges, 474 Pa. at 241-242, 378 A.2d at 308-309. See Gower Estate, 445 Pa. 554, 284 A.2d 742 (1971). Our courts will find a valid marriage if there is sufficient evidence to prove that it was the parties intention to enter into a marriage relationship. In Re Estate of Stauffer, 315 Pa.Super. 591, 462 A.2d 750 (1983); Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. 541, 544-545, 547, 345 A.2d 914, 915-917 (1975). Because of the problems of proof associated with establishing the existence of a marriage contract, our courts have developed certain presumptions.

Constant cohabitation of a man and woman together with a general reputation as husband and wife in their community raise a presumption that the parties have contracted marriage. In Re Estate of Garges, 474 Pa. at 241, 378 A.2d at 309; Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). See VanBrakle v. Lanauze, 293 Pa.Super. 276, 438 A.2d 992 (1981). However, the presumption is rebuttable and it “will wholly disappear in the face of proof that no marriage existed.” Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. at 544, 345 A.2d at 915. Moreover, a presumption of marriage based on cohabitation and reputation will not arise where the parties admit that they lived together unmarried up to the time of the alleged agreement to create a marriage relationship. See Stevenson’s Estate, 272 Pa. 291, 297, 116 A. 162, 164 (1922). Where a relationship between a man and a woman is “illicit and meretricious” in its inception, it is presumed to so continue during the cohabitation of the parties. That presumption will be rebutted only if the consent of both the parties to enter into a valid marriage is established by clear and convincing evidence. Stauffer Estate, 372 Pa. 537, 539, 94 A.2d 726, 727-728 (1953); Commonwealth ex rel. DeMarco v. DeMarco, 166 Pa.Super. 69, 71, 70 A.2d 384, 386 (1950). See In Re Estate of Garges, supra; Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa.Commw. 481, 279 A.2d 372 (1971). Finally, a claimant who asserts the existence of a marriage bears the burden of proving by clear and convincing evidence that a change in the meretricious status occurred. See e.g., Commonwealth ex rel. DeMarco v. DeMarco, supra; In Re Estate of Garges, supra.

In this case, the trial court determined that the parties were not married to each other when Patricia moved into Rodney’s house in Manheim in 1974. That finding was amply supported by the record. Indeed, Patricia testified that they were only living together when she resided with Rodney in Manheim in 1974, and that she did not feel married at that time. The trial court further determined that the words spoken between Rodney and Patricia at the Mansion House Restaurant in 1975 were insufficient to establish a common-law marriage and that conclusion has not been challenged. It is clear then that Rodney and Patricia lived together unmarried, for a number of years at the outset of their relationship; thus, their relationship began meretriciously. See Baker v. Mitchell, 143 Pa.Super. at 56, 17 A.2d at 741. Accordingly, we find that the trial court committed an error of law in concluding that the cohabitation of Patricia and Rodney, together with the fact that they were known to some people as husband and wife after they moved to Clinton County in 1977, raised a presumption that the parties entered into a marriage contract at that time. On the contrary, there is a presumption that the parties continued to live together unmarried. The burden was on appellee to rebut that presumption by presenting clear and convincing evidence that her relationship with decedent had been converted into a valid marriage. Moreover, the trial court was compelled to view the purported marriage agreement with heightened scrutiny, since appellee claimed that she was entitled to share in the distribution of decedent’s estate in derogation of the terms of his will. Applying these legal principles to the facts in this case, we find that appellee failed to meet her strict burden of proving that the parties status changed upon their move to Clinton County in 1977.

Although Rodney told Patricia that he bought her a home and that she had to move because she was his wife, these statements, by themselves, do not establish a present agreement to marry. See e.g., Commonwealth ex rel. DeMarco v. DeMarco, supra. The only other evidence offered to support a determination that the parties intended to establish the relationship of husband and wife was the evidence concerning their reputation as man and wife. This evidence was limited to the testimony of two of decedent’s co-workers, Patricia’s sons’ football coach, and two other casual acquaintances. On the other hand, there was substantial competent evidence that the parties acted in a manner that was inconsistent with the existence of a marriage agreement.

Rodney told Patricia that he bought her a home, however, he titled the house in his name only. Although Patricia discontinued her claim for welfare benefits from the Pennsylvania Department of Public Welfare when she moved to Renovo, she did not inform the Department that she was married. Indeed, on May 3, 1979, shortly before Rodney’s death, she signed a review form from the Department wherein she referred to decedent as her “paramour.” Less than one month before Rodney’s death, he told his brother and his father that he was not married to Patricia. In response to his father’s question whether he intended to marry Patricia, Rodney stated; “No way.” (RR. 152). Patricia and Rodney did not maintain joint checking and savings accounts, nor was there evidence that either party was listed as a beneficiary on an insurance policy executed by the other. Compare, In Re Estate of Garges, supra (common-law marriage corroborated by evidence that the parties took out life insurance policies naming each other as spouse-beneficiaries); Stauffer Estate, supra (common-law marriage supported by evidence that parties resided together 13 years, took title to real estate as husband and wife as tenants by the entireties, and wife took out life insurance policy naming husband as beneficiary). Moreover, Rodney filed federal income tax returns listing himself as unmarried during the entire time he lived with Patricia. In addition, Rodney indicated that he was not married on a credit application completed in 1978. Compare Commonwealth ex rel. McDermott v. McDermott, supra (agreement to establish the legal relationship of husband and wife was supported by evidence that wife was named as beneficiary on husband’s insurance policies and pension plans and that parties filed joint tax returns claiming married status).

On the basis of these undisputed facts, we find that appellee failed to satisfy her strict burden of proving by clear and convincing evidence that she and Rodney entered into an agreement to establish a marriage relationship. The corroborative evidence offered by appellee to prove that a common-law marriage took place was far outweighed by contrary evidence that Rodney and Patricia did not intend to enter into the legal relationship of marriage.

Judgment reversed.

Jurisdiction relinquished.

      . The Court also found that neither party had been previously married to anyone else.

      . Although this strict burden of proof was formulated in early case law, we are convinced that it is equally compelling at present, given the legal significance of the marriage relationship as compared with the nature of a casual agreement to live together for the sake of companionship and shared expenses.

      . Our courts have regarded common-law marriage as a fruitful source of fraud and perjury and, thus, the law imposes a heavy burden on one who grounds a claim upon the existence of a common-law marriage. Estate of Gavula, 490 Pa. at 540-541, 417 A.2d at 171; Osterling’s Estate, 323 Pa. 23, 27-28, 185 A. 790, 792-793 (1936). This is especially true where the lips of one of the parties are sealed by death and the marriage contract is asserted as the basis of a claim to share in the distribution of the decedent’s estate. Estate of Gavula, supra; Manfredi Estate, 399 Pa. at 292, 159 A.2d at 701; Osterling’s Estate, supra. In such a case, courts will examine the purported marriage contract with great scrutiny. Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. at 551, 345 A.2d at 918.


text:
    479 A.2d 544
    GRAND LODGE OF PENNSYLVANIA INDEPENDENT ORDER OF ODD FELLOWS by Fred M. SEE, Edward W. Brinkley, Substitute For Charles Moses, Deceased, and Willis G. Robinson, Trustees Ad Litem, Appellants, v. VAN CAMP LODGE NO. 140 IOFF, and Odd Fellow Hall Association of Bloomsburg, Pennsylvania, A Non-Profit Corporation and Robert G. Seagers, John E. Beagle, Wilman Kitchen, James G. Law, Harold Moyer and Paul Sharpless.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed June 22, 1984.
    Petition for Allowance of Appeal Denied Oct. 3, 1984.

      Felix DeGuilio, Pittsburgh, for appellants.
    Gailey C. Keller, Bloomsburg, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Van Camp Lodge No. 140, Independent Order of Odd Fellows, an unincorporated association (Lodge 140) and The Odd Fellows Hall Association of Bloomsburg, Pennsylvania, a Pennsylvania non-profit corporation (Hall Association) sold Lodge 140’s meeting hall without the approval and consent of the Grand Lodge of Pennsylvania, Independent Order of Odd Fellows (Grand Lodge). The Grand Lodge thereupon caused Lodge 140 to be suspended and commenced an action in equity to impose a trust upon the proceeds of the sale. When the trial court held that the Hall Association was not bound by the by-laws of the governing body and that the Grand Lodge was not entitled to assert any rights to the proceeds of the sale of the meeting hall, this appeal followed. We reverse.

The meeting hall had been acquired in 1928. Title to the real estate was immediately placed in the Hall Association. The first floor of the building was leased for commercial purposes; the second floor was leased as residential apartments; and the third floor was used as a meeting hall and for miscellaneous purposes by the members of Lodge 140. On September 29, 1979, the building was conveyed to Dennis and Cynthia Williams. When, in June, 1980, the Grand Lodge learned that the building had been sold without its prior approval and suspected that the proceeds were to be distributed to and among the remaining members of Lodge 140, the Grand Lodge suspended the local lodge’s charter on July 3, 1980. The books, records, rituals, etc. of Lodge 140 were surrendered to the Grand Lodge, but the members of Lodge 140 determined to deliver the proceeds of the sale to the Bloomsburg Hospital. This action was commenced to recover those proceeds.

The Independent Order of Odd Fellows is an international benevolent association structured in a three tiered hierarchy of lodges. The Sovereign Grand Lodge is the international governing body which has promulgated the General Laws of Odd Fellows under which all subordinate lodges exist. The Sovereign Lodge chartered the Grand Lodge of Pennsylvania, which has jurisdiction over local lodges in Pennsylvania. Lodge 140, in turn, was chartered as a subordinate lodge by the Grand Lodge.

The Code of General Laws adopted by the Sovereign Grand Lodge on September 15,1915, as revised in 1925, was in existence at the time the meeting hall was purchased by Lodge 140. Relevant sections of Chapter 12, entitled “Property,” provided as follows:

Sec. 853. The subordinate bodies of the Order shall have the right to own and hold, for the uses and purposes of the order, both real and personal property, subject to such regulations and conditions, not inconsistent with the laws of the Order as may be prescribed by the respective Grand Bodies having jurisdiction over them.
Sec. 854. No subordinate body of the Order shall have power or authority to dispose of its real or personal property and dissipate or distribute the same for the purpose of defeating the reversionary interest of the Grand Body, having jurisdiction over it, in such property, nor shall a subordinate body have power or authority to sell, convey or otherwise dispose of its real or personal property except for the purpose of applying the proceeds thereof to the uses and purposes of the Order.
Sec. 856. All real and personal property owned by a subordinate body of the Order, shall, in the event that such subordinate body, whether incorporated or unincorporated, shall become defunct, pass to and vest in the Grand Body having jurisdiction over such subordinate.

Relevant sections of the Sovereign Grand Lodge’s Constitution and Code of General Laws, dated 1977 and in effect at the time when the Bloomsburg meeting hall was sold, were also introduced into evidence. They were similar to the general laws in effect when the meeting hall was purchased but contained additional language clarifying the subordination of local lodges to the general laws of the order. The Constitution of the Grand Lodge, dated 1931, was received into evidence and relevantly provided:

b. Lodge Funds are trust funds and must be collected and disbursed in accordance with the provisions of the General Law of the Order and the Constitution and ByLaws of the Lodge. They cannot be divided among the members. Should a subordinate or Rebekah lodge dissolve or surrender its Charter, or the lodge be dissolved by the Grand Lodge or the Board of Grand Officers and its Charter be revoked or reclaimed by the Grand Master, such lodge shall be defunct and all the funds, paraphernalia, books, papers and other property of such lodge shall revert to and become the property of this Grand Lodge. In accordance with the General Laws of the Order and
the Act of Assembly of June 20th, 1883, P.L. page 132, and such fund shall become a part of the Defunct Lodge Fund and be used as provided for in Articles XI and XII of this Constitution.

Finally, the Constitution of Lodge 140, approved by the Grand Lodge in 1931, provided in relevant part as follows:

Art. XXIII. Sec. 2. Lodge monies are trust funds and ... any division of the funds of the Lodge is illegal and will be regarded by the Grand Lodge as a breach of trust. Sec. 3. The Lodge has jurisdiction over its financial affairs so long as it acts in obedience to the provisions of its warrant or dispensation and to the provisions of this Constitution, to the Law of the Order, and to the mandates of the Grand Lodge____
Art. XXIV. Should this Lodge become defunct or surrender its charter, or its charter be declared forfeited, it shall be the duty of the Noble Grand, ... to immediately deliver to the Grand Master, ... every species of property and assets — including the Charter and all books, papers, funds, and property of every description belonging to the Lodge ... and such funds, moneys and all effects of a defunct Lodge shall be disposed of by the Grand Lodge as it may direct.

These provisions were binding upon the members of Lodge 140, a subordinate body. See: Pennsylvania State Camp, Patriotic Order Sons of America v. Washington Camp No. 250, 385 Pa. 503, 506, 123 A.2d 705, 707 (1956); Nokomis Tribe No. 307, Improved Order of Red Men of Pennsylvania Dissolution Case, 331 Pa. 53, 54-56, 200 A. 23, 24-25 (1938); Carlin v. Ancient Order of Hibernians, 54 Pa.Super. 512, 524 (1913). See also: Grand Lodge of New Hampshire, I.O.O.F. v. Union Lodge No. 32 of Deerfield, New Hampshire, I.O.O.F., 111 N.H. 241, 279 A.2d 590 (1971); Grand Lodge of I.O.O.F. of New Jersey v. Wieland Lodge No. 113, I.O.O.F., 93 N.J.Eq. 129, 115 A. 205 (1921).

The trial court found that the Grand Lodge had failed to prove its by-laws as they existed in 1928 and concluded, therefore, that Lodge 140 was not required to recognize the Grand Lodge’s claim to its assets. This was erroneous. When Lodge 140 adopted a constitution containing the provisions of the general laws of the Grand and Sovereign Grand Lodges, it ratified the constitution and by-laws of the parent organizations as they then existed. Even if the provisions regarding the Grand Lodge’s property rights were not previously binding upon Lodge 140, they became binding by virtue of this ratification. Polish Falcons of America v. American Citizens Club for Poles of Natrona, 338 Pa. 218, 220-221, 13 A.2d 27, 29 (1940). See also: Grand Lodge of New Hampshire, I.O.O.F. v. Union Lodge No. 32 of Deerfield, New Hampshire, supra. General laws of the Sovereign Grand Lodge were also applicable. These laws have at all times, then and now, provided the machinery necessary for administering funds collected from defunct lodges for the benefit of those members who wished to continue as members of the Odd Fellows. The decisions are uniform that the general laws of the order under such circumstances are superior to the wishes of the members of subordinate bodies and determinative of the rights in and to property owned by such subordinate bodies. See: Pennsylvania State Camp of The Patriotic Order Sons of America v. Washington Camp No. 669, 385 Pa. 501, 123 A.2d 707 (1956); Pennsylvania State Camp, Patriotic Order Sons of America v. Washington Camp No. 250, supra; Pennsylvania State Camp, Patriotic Order Sons of America v. Washington Camp No. 135, 385 Pa. 492, 123 A.2d 701 (1956); Nokomis Tribe No. 307, Improved Order of Red Men of Pennsylvania Dissolution Case, supra; Grand Castle, Knights of Golden Eagle v. Taylor, 278 Pa. 9, 122 A. 210 (1923); Grand Lodge of New Hampshire, I.O.O.F. v. Union Lodge No. 32 of Deerfield, New Hampshire, I.O.O.F., supra; United States Sav. Bank of Newark v. Schiller Lodge No. 66, F. & A.M., 117 N.J.Eq. 460, 176 A. 330 (1935). This principle is embodied in the Act of June 20, 1883, P.L. 132, § 1, 10 P.S. § 111.

It is argued, however, that these principles are not determinative because in this case the building was owned by the Hall Association, a separate corporation. There is no merit in this contention. The Hall Association is wholly owned by Lodge 140 and is merely one of its assets. The charter of the Hall Association provided that its purposes were “to provide, erect and furnish a Hall or suitable building or buildings in the town of Bloomsburg, Pa. for the accommodation of various lodges and encampments of the Independent Order of Odd Fellows established or to be established there, or to lease suitable buildings for said purposes.” The charter provided further that “[t]he membership of this Association shall consist of members of the Van Camp Lodge No. 140 of Bloomsburg, Pa.” Both Lodge 140 and the Hall Association adopted names suggesting an Odd Fellows affiliation. The Hall Association did not charge and Lodge 140 did not pay rent for use of the building. Moreover, the Hall Association held no meetings, conducted no elections, and had no board of directors. It seems clear, therefore, that Lodge 140 could not and did not put title to its real estate beyond reach of the internal laws of the Sovereign Grand and Grand Lodges merely by creating a separate corporation which held title to its real estate. The issue is not one of piercing the corporate veil, as appellees seem to think, but ultimate and actual ownership of assets. The corporation and its assets, including the meeting hall, were owned by Lodge 140 and its members. Therefore, the hall could be disposed of only in accordance with the internal laws of the Order. Disposition of the subordinate body’s property in accordance therewith could not be avoided by placing title to the property in a separate, wholly owned corporation.

It has also been argued that Lodge 140 is not defunct but merely suspended and that, therefore, it can distribute its assets to whomever it selects. This argument also lacks merit. If the members of the lodge cannot divide the property upon dissolution, it certainly may not do so while it remains in existence. Sale of the real estate owned by a lodge cannot properly be effected without approval of and consent by the Grand Lodge. It would be an absurdity to believe that the members of the subordinate body could defeat the trust imposed upon their assets by simply selling those assets and dividing the proceeds before surrendering their charter and ceasing to exist. See: Grand Lodge of Independent Order of Odd Fellows v. Baker, 192 Pa.Super. 14, 159 A.2d 552 (1960).

Lodge 140 has now ceased to exist, and appellees are not attempting to establish a new lodge. Therefore, the assets held by the Hall Association must be channelled in accordance with the purpose for which they were accumulated. They must be transferred to the parent body, in this case the Grand Lodge, to be used to continue the purposes of the Order of Odd Fellows. The rights of the Bloomsburg Hospital, although appealing, are derivative of and no greater than the rights of the individual members of Lodge 140. Because the Hospital’s claim to the proceeds is dependent upon the wrongful attempt by the members of the lodge to divert the lodge’s assets from the parent organization, the Hospital’s claim must yield to the superior rights of the Grand Lodge.

Reversed and remanded for the entry of a decree in accordance with the foregoing opinion.

      . The statute provides:

        The funds and effects of unincorporated associations for benevolent, charitable or beneficial purposes, constituted or organized under any warrant or charter granted by any association recognized or acknowledged as the parent or superior body, where the rules and regulations of such parent or superior body require that, upon the dissolution, expulsion, surrender of warrant or charter, or vacation of the same by such parent or superior body, the moneys, property and effects of such subordinate association shall be delivered and paid to the parent or superior body, are hereby declared to be trust property, and it shall be unlawful for any such subordinate association to divide or distribute the moneys, property or effects, or any part thereof, to and among the members of such subordinate association, or any member thereof, either directly or indirectly, or by way of donation; but all such moneys, property and other effects of such subordinate associations, upon the dissolution, expulsion, surrender of warrant or charter, or vacation of the same by the parent or superior body for which they have obtained the warrant or charter, under which they have been constituted or organized, shall be paid and delivered to the proper officers of such parent or superior body; and in case any such subordinate association shall or may have made any division or distribution of the moneys, property or effects held by such subordinate association, or any part thereof, to or among the members thereof, or any number of them, either directly or indirectly, the principal officers or trustees of the parent or superior body, to the use of such parent or superior body, may recover such moneys, property or other effects so divided or distributed contrary to the provisions of this act, from the person or persons to whom the same, or any part thereof, shall or may have been paid or delivered; and the several courts of equity of this commonwealth are hereby vested with full power and authority to enforce the provisions of this act, as in other cases within their jurisdiction. And the said parent or superior body to whom any moneys, property or other effects of such subordinate association shall be paid and delivered, shall take and hold the same for the purposes and intents for which they were received and held by such subordinate associations: Provided however, That all suits commenced or brought to enforce the provisions of this act shall be commenced or brought within two years next after the time when such division or distribution shall have been made. 1883, June 20, P.L. 132, § 1.