author: TAMILIA, Judge: ROWLEY, Judge,

text:
    522 A.2d 80
    Gregory L. SUTLIFF v. Carlene S. SUTLIFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Filed March 4, 1987.

      Ronald Katzman, Harrisburg, for appellant.
    Bonnie D. Menaker, Harrisburg, for appellee.
    Before WICKERSHAM, ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This is a direct appeal of an Order of contempt entered against appellant/mother for failing to comply with a partial custody Order which was last amended on April 3, 1984. Appellant was fined $250.00.

This appeal involves the youngest child of the now divorced parties, Laura Sutliff, born February 10, 1973, who is currently a seventh grade student residing with her mother, the appellant. Appellee/father resides in the same borough as his daughter and appellant, approximately one mile from appellant’s home. While the parties have four children from their marriage, the present appeal only concerns the partial custody rights with respect to Laura.

The original partial custody Order was entered by Judge Sheely, on February 25, 1982, and with respect to Laura ordered:

3. Petitioner [/father] shall have visitation with Laurie every Thursday evening from 5:30 p.m. to 8:00 p.m., commencing March 4, 1982, and on alternating Saturdays from 12:00 p.m. noon until 6:00 p.m., commencing Saturday March 6, 1982. Petitioner shall pick up Laurie at her home and return her after visitation.
Respondent [/mother] shall have the children ready and prepared to make the visits on the times indicated above____

Subsequently, on April 2, 1982, appellee filed a petition for contempt relative to the partial custody Order. During a collateral hearing between the parties, Judge Sheely entered on April 12, 1982 an Order which modified the prior visitation Order, dated February 25, 1982, “based on the stipulation of counsel presented at this time.” With respect to Laura that stipulation provided:

3. The Order relative to Laurie, Paragraph 3 of the original Order [dated February 25, 1982], shall continue as set forth and the Court to encourage both Laurie and her mother to continue the visits, and in the event that some occasion does come up which requires a change in the date or time of the visit, that Mr. Sutliff be given advance notice and be permitted to change the date or time and to have a substitute visit. (Emphasis added).

A contempt hearing was held on January 27, 1983 without result. In furtherance of appellee’s April 2, 1982 petition for contempt, appellee filed a petition for determination of petition for contempt, enforcement, and expanded visitation privileges on April 4, 1983, which was dismissed, after hearing, by Order dated April 3, 1984. This April 3, 1984 Order amended the previous Order entered by stipulation of the parties dated April 12,1982. With respect to Laura, the amending Order reads as follows:

Paragraph three is amended to read that the petitioner and natural father shall have partial custody of Laurie on alternating Saturdays from 1:00 p.m. to 7:00 p.m., commencing Saturday, April 7, 1984. The petitioner shall also have partial custody every Tuesday evening, from 5:30 p.m. to 8:00 p.m., commencing Tuesday, April 10, 1984. Or if Tuesday does not suit both parties, then on Wednesday evenings at the same times.
This order has been entered after talking in chambers with Laurie with counsel present for both parties. No testimony by the parents has been taken in connection with this order, as the court does not feel that additional testimony from the parents at this time would be required.

Appellee’s third petition for contempt and enforcement Order and a modification of custody was filed on or about November 15, 1985. It is from the April 4, 1986 contempt Order rendered in response to this petition that appellant now appeals. In his April 4, 1986 Order, Judge Sheely found as a fact that appellant/mother had “not encouraged” Laura to visit with her father and that appellant left it up to Laura whether Laura would make any visits with her father. Based upon these findings the lower court adjudged appellant in contempt, fining her $250.00, and reinstated the prior custody Order of April 3, 1984 in its entirety.

Appellant correctly argues that the trial judge improperly prevented cross-examination of Laura during the April 4, 1986 hearing. With regard to custody and visitation actions, Pa.R.C.P. 1915.11(b) provides:

The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record. (Emphasis added).

As noted in the 1981 Explanatory Note to Pa.R.C.P. 1915.-11, in Gerald G. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981), we have prescribed the procedure for the interrogation of children who are the subject of a custody action. “[W]hen a hearing judge interviews a child in a custody case, certain procedures must generally be met: (1) counsel must be present; (2) counsel must have the opportunity to question the child; and (3) the testimony must be transcribed and made a part of the record.” Id., 284 Pa.Superior Ct. at 505, 426 A.2d at 161; see Nemeth v. Nemeth, 289 Pa.Super. 334, 433 A.2d 94 (1981).

Here, Judge Sheely correctly allowed counsel for both parties to be present during his examination of Laura, which was transcribed and is a part of the record, as well as the parties themselves. (H.T., 4/4/86, p. 74). However, after finishing his examination, Judge Sheely refused to allow counsel for appellant to question Laura, even after appellant’s counsel’s request to do so:

[THE COURT:] What did your mother tell you?
[LAURA:] She says I can do what I want to do?
[THE COURT:] That’s enough. You may step down. Go on out.
MR. KATZMAN: Your Honor, I have additional questions to ask.
THE COURT: You’re not going to ask her any questions. I’m going to reinstate this order. Next time she doesn’t visit, you’re going to jail.

(H.T., 4/4/86, p. 77). The procedure conducted by the hearing court clearly infringed upon appellant’s counsel’s right to interrogate Laura and failed to develop a complete record for appellate review. Therefore, based on this finding, we vacate the April 4, 1986 contempt Order and remand for further proceedings in accordance with this ruling.

While it would be improper for us to address appellant’s arguments concerning the lower court’s abuse of discretion in weighing the circumstances surrounding the visitation, we find that appellant has raised a number of other issues which can be addressed at this time.

Appellant argues that because the lower court’s Order failed to provide any possibility or opportunity of appellant purging the contempt, the lower court’s action must be defined as “indirect criminal contempt,” rather than “civil contempt.” We disagree. The controlling factor of whether the contempt is civil or criminal in nature is the dominant purpose and objective of the court’s Order. Simply stated:

If the dominant purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a proceeding for criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to enforce compliance with the decree of the court are civil in nature. The purpose of a civil contempt proceeding is remedial, and judicial sanctions are employed (1) to coerce the defendant into compliance with the court’s order, and (2) in some instances to compensate the complainant for losses sustained. (Emphasis omitted).

Brocker v. Brocker, 429 Pa. 513, 522, 241 A.2d 336, 340 (1968), cert. den., 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969); Bruzzi v. Bruzzi, 332 Pa.Super. 346, 481 A.2d 648 (1984). Here, the contempt Order’s purpose is to protect the best interest of the child Laura and benefit the appellee, not to vindicate the authority of the court, and is therefore civil in nature.

Alternatively, appellant claims that if viewed as civil contempt, the lower court is “clearly wrong” because it did not include the required condition whereby appellant could purge herself. While such a condition is a traditional descriptive feature of civil contempt, Bruzzi, supra, we hold that under 23 Pa.C.S.A. § 4346 when imposing a contempt fine for noncompliance with visitation or partial custody the Order need not specify a condition which, when fulfilled would result in the purging of the contempt.

As noted earlier, the basis for the contempt Order was the lower court’s finding that appellant/mother had “not encouraged” Laura to visit with her father and that appellant left it up to Laura whether Laura would make any visits with her father. Appellant argues that because neither the original custody Order nor the subsequent amending Orders state that the appellant must “encourage” her daughter to visit with her father, appellant has not violated a court Order in failing to so encourage. We cannot review the lower court’s determination of a lack of encouragement on the part of appellant without a complete record, for which we have remanded for further proceedings, however, we will address appellant’s argument that a party can only be held in contempt if the Order he is held to have violated clearly and precisely defines the required behavior, which behavior in this case refers to a duty of appellant to “encourage” Laura to visit with her father in accordance with the custody Orders.

In Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 416, 487 A.2d 11, 14 (1985), we set forth the four elements necessary to support a finding of contempt under 42 Pa.C. 5. A. § 4132(2):

1. The order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited.
2. The contemnor must have had notice of the specific order or decree;
3. The act constituting the violation must have been volitional; and
4. The contemnor must have acted with wrongful intent.

See also Weingrad v. Lippy, 300 Pa.Super. 76, 79, 445 A.2d 1306, 1308 (1982). None of the custody Orders in this case specifically or clearly state that appellant must “encourage” her daughter to visit. The original custody Order of February 25, 1982 mandated that appellant “shall have the children ready and prepared to make the visits on the times indicated” in the Order. But a requirement of “ready and prepared” is far different from a requirement of “encourage”, which appellant was found in contempt for failing to do. We understand the lower court’s belief that visitation must be forced in this case less future efforts by appellee to visit and develop a relationship with Laura be thwarted, (Slip Op. at 3), but we cannot ignore the basic elements to support a finding of contempt. Thus, based on the existing custody orders on record in this case, we hold that appellant/mother cannot be held in contempt for failing to encourage Laura to visit with her father.

We feel the lower court’s actions in Mellott v. Mellott, 328 Pa.Super. 200, 476 A.2d 961 (1984) are particularly instructive and applicable to the present case. In Mellott, the lower court acknowledged that the mother was not complying with its original custody Order by amending that Order to state, in part:

It shall be the obligation of the mother to have the children ready for such visits and to encourage them to participate in the plan hereby ordered. While in the presence of the children neither of the parents shall make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one whom the children should respect and love. (Emphasis added)

Id., 328 Pa.Superior Ct. at 202, 476 A.2d at 962. We found this amendment to be proper use of the lower court’s discretion. This type of language allows for a requirement of encouragement which is definite, clear and specific, and leaves no doubt in the mind of the person to whom it was addressed of the conduct prohibited.

Accordingly, for the reasons stated above, this case is remanded for a new hearing with respect to the examination of the child, Laura; and with respect to the issue of contempt, we reverse the lower court’s determination that appellant/mother can be held in contempt of court, based on the existing custody Orders on the record, for failing to “encourage” Laura to visit with appellee. Jurisdiction relinquished.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

I dissent from the majority’s finding that the trial court’s preclusion of cross-examination of the parties’ minor child, Laura Sutliff, requires us to vacate the court’s order and remand the case so that appellant may cross-examine Laura.

Based on the trial court’s familiarity with the case and the parties, I find that the ruling, if error, is harmless. A party is entitled to a fair hearing, not a perfect one. To constitute reversible error, a ruling on evidence must be not only erroneous, but harmful to the party complaining. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965). In reviewing a finding of contempt, this Court places great reliance on the sound discretion of the trial court. Mellott v. Mellott, 328 Pa.Super. 200, 476 A.2d 961 (1984); Commonwealth ex rel. Ermel v. Ermel, 322 Pa.Super. 400, 469 A.2d 682 (1983). In the present case, Judge Sheely has presided over all custody matters between the parties, including: 1) extensive hearings before the original custody order was entered and in response to appellee’s first petition for contempt; 2) he has spoken with Laura and allowed her to be cross-examined before amending the original custody order for the second time, and 3) held an extensive hearing on appellee’s third petition for contempt during which both parties testified as did appellee’s present wife and Laura. See slip op. at pp. 1 & 5. Given Judge Sheely’s knowledge of the case, we should be especially careful to defer to his ruling.

The majority emphasizes that the lack of cross-examination of Laura prejudices appellant because it is unclear whether appellant encouraged Laura to visit with appellee. Because I do not read Judge Sheely’s order and opinion as basing his finding of contempt on appellant’s failure to encourage visitation, I cannot agree that the court’s ruling merits remanding the case. The order of April 4, 1986 states that the court found as a fact that appellant “let it up to her daughter to decide if she will make any visits with her father.” The order for visitation required that appellant have Laura “ready and prepared to make the visits on the times indicated____” By allowing Laura to decide whether she wished to visit with her father, appellant failed to have her “ready and prepared” to visit with her father and created the impression with Laura that she did not have to obey an order of court which the child was subject to. Appellant thus willfully failed to have Laura “ready and prepared” for the visits and it was this action by appellant that the trial court based its finding of contempt upon. Therefore, appellant’s inability to cross-examine Laura on whether she was “encouraged ” to visit her father would not alter the finding that appellant was in contempt of the trial court’s previous order.

Lastly, the order appealed from reveals that the trial court did not “fine ” appellant for her contemptuous behavior; instead, the court ordered her to pay $250 on account of appellee’s counsel fees. The present case is similar to Mellott v. Mellott, supra, except for the assessment of counsel fees. In Mellott, the trial court acknowledged that the mother was not complying with its order concerning the father’s visitation rights with the parties’ minor children in the manner that the court intended. However, instead of finding the mother in contempt, the trial court clarified and expanded its order.

For these reasons, I would affirm the trial court’s order.

      . Judge SHEELY has presided over all custody matters between the parties as well as every other issue arising out of their divorce proceedings.

      . An appeal from this Order was filed by appellant but was later withdrawn and discontinued by appellant.

      . The official docket entry shows that the petition was filed, but groups the petition with the Order Scheduling Hearing on the petition, which Order was filed December 11, 1984.

      . We note, however, that the hearing judge did hold extensive hearings before the originál custody Order and in response to appellee's first petition for contempt. Additionally, the hearing judge spoke to Laura in chambers, on the record, and with cross-examination by counsel for both parties on April 3, 1984, before amending the original custody Order for the second time. Finally, in response to appellee’s third petition for contempt, the April 4, 1986 hearing was extensive, involving testimony by both parties, appellee’s present wife, and Laura before rendering the present contempt Order now on appeal. After thorough review of the transcripts of these proceedings, we find that the only deficiency in the record for appellate review is the preclusion of cross-examination of Laura during the April 4, 1986 hearing.

      . Section 4346 was in full effect at the time of the April 4, 1986 hearing and Order in question, and reads in full as follows:
      § 4346. Contempt for noncompliance with visitation or partial custody order
      (a) General rule. — A party who willfully fails to comply with any visitation or partial custody order may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punished by any one or more of the following:
      (1) Imprisonment for a period not to exceed six months.
      (2) A fine not to exceed $500.
      (3) Probation for a period not to exceed six months.
      (b) Condition for release. — An order committing a person to jail under this section shall specify the condition which, when fulfilled, will result in the release of the obligor.
      1985, Oct. 30, P.L. 264, No. 66, § 1, effective in 90 days.

        See also Pa.R.C.P. 1915.12(d) and comment thereto.

      . Interpreting § 4131 renumbered as § 4132 and amended Dec. 20, 1982, P.L. 1409, No. 326, Art. II, § 201 eff. in 60 days.

      . Appellee points to the word “encourage” appearing in the parties stipulation — incorporated by reference in the April 12, 1982 modifying Order — as proof that the appellant’s argument is specious and that the court had in fact ordered appellant to “encourage” her daughter to visit with her father. However, as used in the stipulation the word “encourage” was in reference to the lower court’s encouraging Laura and appellant to continue the visits, not the court’s ordering appellant to encourage Laura to visit.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    522 A.2d 85
    Richard J. MIESEN, Appellant, v. Susan FRANK.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed March 6, 1987.

      Lawrence F. Flick, Norristown, for appellant.
    Frederick Cohen, Norristown, for appellee.
    Before CAVANAUGH, WICKERSHAM and McEWEN, JJ.
   WICKERSHAM, Judge:

Richard J. Miesen appeals from the order of the Court of Common Pleas of Montgomery County dismissing his complaint in equity.

Appellant and appellee, Susan Frank, were formerly husband and wife. Prior to their divorce in June of 1976, the parties entered into a separation agreement which contained, inter alia, the following provisions:

TWELFTH: Husband hereby acknowledges that he does not intend to support the three above named minor children. In the event Wife should remarry or desire that her parents adopt said children, Husband hereby gives his consent to the adoption of said children by wife’s then present husband or parents, provided said party or parties agree in writing that Husband shall have reasonable and liberal visitation rights with each child as long as said visitation does not interfere with the social and educational requirements of each said child. Husband declares that he does not want to be financially or in any other manner responsible for the support of the said three minor children, and that he desires indemnification from Wife and her estate for any claims of support or financial responsibilities by said children. Husband further declares that he agrees to consent to the adoption of said children in order to obtain Wife’s indemnification for support. Should Husband withhold his consent to the adoption of any of the children or should he make any claim to their custody or to their property at any time, the said Agreement of indemnification shall be cancelled and be null and void and of no effect, and Wife and her estate shall no longer be obligated to indemnify him and he shall be liable for their support.
Thirteenth: It is specifically and mutually understood and agreed that Husband shall' pay nothing for the support of the parties’ above named three minor children, but Husband shall carry for the benefit of his minor children Blue Cross and Blue Shield medical insurance or insurance of a comparable nature. Wife shall be solely responsible for the support of the parties’ three children. Wife hereby indemnifies Husband for any amounts of support claimed by said children against Husband and hereby binds her estate, executors, administrators, [], personal representatives or assigns by such indemnification should any such claims be made by said children after her death.

R.R. at 17a-18a.

In 1981, appellee found herself in financial difficulty and she filed a child support petition against appellant on behalf of their three minor children. On August 20, 1981, the lower court entered an order directing appellant to pay $250.00 per week in support. Significantly, appellant did not appeal this order and has in fact been making the required payments.

In March of 1985, appellee filed a petition for an increase in the payments due to the costs of the children’s private schooling, high medical bills, and psychotherapy. The hearing officer recommended that appellant pay all of the schooling costs and half of the unreimbursed medical expenses, along with the $250 per week payment he was already making. This recommendation was entered as a court order on November 19, 1985. Appellant filed exceptions to the order and the matter was pending before the lower court at the time of this appeal.

On August 19, 1985, four years after the support order was entered, appellant filed a complaint in equity seeking specific performance of the indemnity provision in the parties’ 1976 separation agreement. He alleged that appellee had violated her agreement not to seek child support and thus, under paragraph 13 of the agreement, she owed him $53,000.00, the amount of support he’d paid since the August 1981 support order. On September 4, 1985, appellee filed preliminary objections to the complaint. On May 29, 1986, after argument, the lower court issued an order sustaining appellee’s preliminary objection in the nature of a motion to strike due to a lack of conformity to law, and dismissed appellant’s complaint with prejudice. Appellant then filed this timely appeal.

The sole issue raisedJbefore us is:
Whether a contract by one party to indemnify another for any payments of child support such party may become obligated to pay is enforceable against the indemni-fier?

Brief for Appellant at 1. The parties advise us that this precise question has not been addressed previously by our appellate courts.

Our courts have long held that parents have a positive duty to provide care, control, and subsistence for their children, as well as a duty to love, protect, and support the child. Petition of Lutheran Children and Family Service of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618 (1974); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). This duty to support applies to both parents; both parents bear an equal responsibility for supporting their children in accordance with the capacity and ability of each to do so. Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985).

Furthermore, it is well-settled that one parent cannot contract away the right of his or her child'to seek adequate support from the other parent. Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985); Abarbanel v. Weber, 340 Pa.Super. 473, 490 A.2d 877 (1985); Commonwealth ex rel. Shoemaker v. Coulson, 335 Pa.Super. 626, 485 A.2d 70 (1984); Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984).

Contracts between husband and wife, if fairly made, are generally considered binding as to them, although legally ineffective to oust the jurisdiction of the court in a support action____ A mother cannot, by contract, bargain away the right of her minor child to adequate support from the father, regardless of the validity of the agreement as between the parents themselves.... In each case it is for the court to determine whether or not the terms of the agreement are reasonable, made without fraud or coercion, and have been carried out in good faith.

Commonwealth ex rel. Bortz v. Norris, 184 Pa.Super. 594, 596, 135 A.2d 771, 773 (1957), quoting Commonwealth ex rel. Heller v. Yellin, 174 Pa.Super. 292, 295, 101 A.2d 452, 454 (1953) (citations omitted).

In accordance with the precedents set forth in the above cases, we must agree with the lower court that appellant’s attempt to require indemnification from appellee for any child support payments must fail. To require appellee to repay appellant all the support payments he has made and will make in the future would undermine his legal duty to support his children to the best of his ability. As a result, the indemnification clause would defeat the purpose of child support payments for the welfare of the child; the money appellant contributed towards his children’s support would end up back in his own pocket. This attempt to shirk his legally mandated duty we cannot allow. Compare Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 172 N.E.2d 283, 210 N.Y.S.2d 520 (1960) (a parent who places himself in a position of indemnitor will be a dubious champion of his child’s rights); Ohio Casualty Insurance Co. v. Mallison, 223 Or. 406, 354 P.2d 800 (1960) (indemnification agreement between parent and tortfeasor is void as against public policy since child would then be unlikely to pursue his rights).

A child has a right to be supported by his or her parents. We cannot permit a parent to indirectly remove that right by a contractual indemnification agreement between himself and his former spouse. Thus, we hold that the indemnification provision contained within the parties’ 1976 separation agreement is void as contrary to Pennsylvania public policy.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . Even if we did not find the indemnification clause to be void as contrary to public policy, we would find this particular indemnification clause to be unenforceable as based on illegal consideration. In Gorden v. Cutler, 324 Pa.Super. 35, 53, 471 A.2d 449, 458 (1983), our court recognized that a contract in which the parent of a child agrees to that child's adoption by another in consideration of monetary benefits to himself is void as against public policy. See e.g., Savannah Bank & Trust Co, v. Hanley, 208 Ga. 34, 65 S.E.2d 26 (1951); Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980). In the instant case, appellant consented to his children's adoption, by any future husband of appellee or by her parents, in return for appellee's promise to indemnify him for their support. The monetary benefits from this arrangement clearly flow to appellant, not to his children. Thus, under the rationale of the Gorden court, the indemnification provision is based on illegal consideration and is therefore unenforceable.


text:
    522 A.2d 88
    Edmond J. TESSIER and Regina Tessier, Appellants, v. Peter and Jean PIETRANGELO and Central Exterminating Company.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1986.
    Filed March 6, 1987.

      Gary R. Block, West Chester, for appellants.
    JoAnne W. Rathgeber, Trevose, for appellees.
    Before WICKERSHAM, McEWEN and BECK, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order entered on May 15, 1986, by the Honorable Isaac S. Garb, President Judge of the Court of Common Pleas of Bucks County, denying appellants’ application to reactivate this case which was terminated by local rule. We reverse.

On May 5, 1981, appellants, Edmond J. and Regina Tessier, filed a complaint alleging that appellees concealed termite damage in the home sold to them. Appellees, Peter and Jean Pietrangelo, countered with preliminary objections to the complaint on June 5, 1981. Appellants then filed an answer to the preliminary objections as well as a supporting memorandum.

No further action occurred until September 30, 1983, when a termination notice issued pursuant to Bucks County R.C.P. 900 was mailed to appellants. Thereafter, on November 7, 1984, the action was terminated by the court due to inactivity. The appellants filed an application to reactivate the matter on August 23, 1985. The lower court denied same citing appellants’ failure to explain the period of inactivity before the notice of termination was mailed and the failure to act promptly after the notice was mailed in support of its order. Appellants filed a timely appeal from this order.

On appeal appellants raise the following issues:

A. The trial court erred in refusing to grant buyers [sic] application to reactivate their cause when the buyers promptly filed their application after discovery of the termination and when the sellers failed to present evidence of prejudice.
B. The Honorable Trial Judge erred in failing to grant the buyers the right to oral argument prior to the entry of an order.

Brief for Appellant at 3.

Appellants’ second issue calls upon us to determine whether Bucks County C.P.R. 266 conflicts with Pa.R.C.P. No. 211 so as to render the local rule ineffective and unenforceable:

It is without dispute that a local court has the right to promulgate local rules of procedure. Ricci v. Ricci, 318 Pa.Super. 445, 447, 465 A.2d 38, 39 (1983); 42 Pa.C.S. § 323. It is equally well settled that ‘[t]he application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule[,] and we will interfere only where the court commits an abuse of discretion.’ Gutman v. Rissinger, 334 Pa.Super. 259, 264-265, 482 A.2d 1324, 1327 (1984), quoting Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 355, 476 A.2d 1366, 1369 (1984). Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. To the extent that they are not consistent with state procedural rules, local rules are invalid and cannot be followed.

Davison v. John W. Harper, Inc., 342 Pa.Super. 560, 563, 493 A.2d 732, 734 (1985).

Instantly, the Bucks County local rule dispenses with oral argument on all motions, rules, preliminary objections, motions for summary judgment, etc., except “oral argument as may be required by the Judge.” This is in direct conflict with the clear and unambiguous language of Pa.R.C.P. No. 211 which provides for a right to argue any motion by a party or his attorney. The local rule is thus invalid and cannot be followed.

In choosing to ignore appellants’ praecipe for oral argument entered on May 9, 1986, and, instead, proceeding in the summary fashion prescribed by local rule in denying oral argument, the lower court has violated the express mandate of Pa.R.C.P. No. 211. Order vacated, and the case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Bucks County C.P.R. 900 was enacted pursuant to Pa.RJ.A. 1901 and is substantially similar to the suggested local rule. J. 88046/1986.

      . Bucks County C.P.R. 266' provides in pertinent part as follows: Rule 266. Disposition of Motions, Rules, Preliminary Objections and Other Miscellaneous Applications.

      (a) All motions, rules, preliminary objections, motions for summary judgment, and other miscellaneous applications which do not require action by a court en banc shall be submitted to and decided by the judge to whom the case has been assigned or, if none, the motion judge, and shall not initially be placed upon the argument list.

      (b) Subject to the provisions and requirements of Pa.R.C.P. 209, and Bucks County Civil Procedural Rule 209*(c), when the matter is ready for decision the moving party shall, by praecipe filed with the Clerk of the appropriate division of the Court, order the same to be submitted for disposition by the judge to whom the case has been assigned....
      ******
      (d) At the expiration of ten full days following the filing by the moving party of the praecipe mentioned in sub-section (b) of this rule, the Clerk shall forthwith deliver the whole record together with the file, the briefs of memoranda of law, to the judge to whom the case has been assigned or the motion judge, as the case may be.
      (e) In the event that the moving party does not comply with the provisions of subsection (b) of this rule, any other party may by praecipe filed, request the Court to dismiss the application of the moving party, provided, however, that ten days written notice of the intent to file such application shall be given to the moving party during which period of time the moving party shall have the opportunity to come into compliance with the requirements of sub-section (b).
      (f) The matter shall be disposed of by written order, forthwith or after such further proceedings including oral argument as may be required by the judge. If the judge in his discretion deems it desirable to refer the matter for decision by a court en banc, he shall direct that the case be placed upon the argument list, and it shall thereafter proceed as under Bucks County Civil Rules 210 *(a) or *(c), the judge fixing the time and order of filing of briefs.
      Note: Rule 266 as amended June 2, 1972, effective July 1, 1972; Rule 266(a) further amended November 26, 1975; further amended July 19, 1976, effective immediately and applicable to actions then pending. — Ed. (Emphasis added).

      . Pa.R.C.P. No. 211 provides:
      Rule 211. Oral Arguments
      Any party or his attorney shall have the right to argue any motion and the court shall have the right to require oral argument. With the approval of the court oral argument may be dispensed with by agreement of the attorneys and the matter submitted to the court either on the papers filed of record, or on such briefs as may be filed by the parties____
      Adopted Sept. 8, 1938, effective March 20, 1939. Amended and effective April 18, 1975. (Emphasis added)..

      . In light of our disposition of appellants’ second issue we do not expressly address their first. However, upon remand, appellants will be required to satisfy standards for reactivation of their complaint which was dismissed for inactivity required under Pa.R.J.A. 1901 and its local rule progeny. Thus, appellants must satisfy the lower court that: (1) the application to reactivate the matter was timely filed; (2) the reasons for inactivity are reasonably explained; and (3) facts constituting a meritorious cause of action have been alleged. Haefner v. Sprague, 343 Pa.Super. 342, 494 A.2d 1115 (1985).


author: BROSKY, Judge:

text:
    522 A.2d 90
    COMMONWEALTH of Pennsylvania v. Bob MICHEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1986.
    Filed March 6, 1987.

      Thomas S. Kubinski, Erie, for appellant.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order denying appellant’s motion for reconsideration of an order holding appellant, Robert Michel, Sheriff of Erie County, in contempt of court and ordering him to pay a fine of $50.00.

Appellant raises two issues for our consideration: (1) Does the evidence establish that Bob Michel wrongfully and intentionally disobeyed or neglected the lawful process of the court or that he committed a volitional act which he should reasonably have been aware was wrongful? and (2) Does the evidence establish that Bob Michel can be held guilty of criminal contempt of the lawful process of the court for actions committed by one of his employees?

After careful consideration we find that the holding of appellant in contempt of court under the facts of this case was erroneous. Accordingly, we reverse.

The relevant facts as gleaned from appellant’s brief and the hearing transcript indicate that: On June 17, 1986, Deputy Sheriff Joseph Cherico, a 19 year veteran of the Erie County Sheriff’s Department, was assigned to Courtroom Number 3, Judge Connelly’s courtroom, and was made responsible to escort criminal defendants to and from the courtroom for their hearings on that date. A schedule was given to Cherico by Chief Deputy Dylewski which showed the name of the defendant and the time at which he should arrive in the courtroom. The schedule showed that a person named Lynn Liptak was to be present in Courtroom 3 at 1:30 p.m. and that Gary Frame was to be present at 2:30 p.m. Cherico escorted Liptak to the courtroom at 1:30 p.m. and after the hearing escorted her back to the prison. Cherico testified that he then pulled a schedule from his back pocket and checked to see if another defendant was scheduled at 2:30 p.m. His testimony was that there was no defendant listed on the schedule for 2:30 p.m. Cherico attributed absence of a 2:30 p.m. defendant to the fact that he kept his daily schedules in his pocket and probably accidentally pulled out the wrong daily schedule. Upon his late arrival in Courtroom 3, Cherico stated, “This is not my regular courtroom and I am getting things by bits and pieces.”

In any event, neither Cherico nor Gary Frame were present in Courtroom 3 at 2:30 p.m. Judge Connelly’s office called Dylewski at the Sheriff’s Office and informed her of this fact and Dylewski immediately paged Cherico to the Sheriff’s Office. Dylewski began to make alternative arrangements to have the defendant escorted to Courtroom 3. Just as she did so, Cherico arrived at the Sheriff’s Office and Dylewski ordered him to go immediately to the prison to pick up Gary Frame and escort him to Courtroom 3. Cherico arrived with Frame at Courtroom 3 at 2:45 p.m.

Two or three minutes after Cherico left the Sheriff’s Office for the prison, Bob Michel arrived at the Sheriff’s Office and was informed of the problem in Judge Connelly’s Courtroom. Michel was told that Cherico was on his way to the prison to escort Frame to the courtroom. Almost simultaneously, an emergency call was made to the Sheriff’s Department regarding a possible problem in another courtroom whereupon appellant left to take care of that problem. Upon his return to the Sheriff’s Office about half an hour later, Michel found the Court Order holding him in contempt of court and fining him Fifty Dollars ($50.00) for failure to have Gary Frame in Courtroom 3 at 2:30 p.m.

Prior to this incident, Judge Connelly had complained to Sheriff Michel about tardy appearances by his employees on two different occasions. The first was January 6, 1986 and the second was on March 19, 1986 when a deputy was four minutes late for a hearing. After the March 19, 1986 incident, Judge Connelly informed Sheriff Michel that he would be held in contempt of court the next time one of his deputies was late for a court appearance.

Michel made a departmental reprimand against the deputy who was late on March 19, 1986. He then held a departmental meeting with all of his employees in attendance and informed them that neither he nor the judge would accept late appearances in court by the deputies and that if he were held in contempt of court by the judge they would suffer severe and strict discipline up to the point of termination of their employment.

There were no further late appearances by deputies in Judge Connelly’s courtroom until June 17, 1986.

This court has recently defined and expounded upon the concept of criminal contempt and said:

A direct criminal contempt consists of misconduct of a person in the presence of the court, or disobedience to or neglect of the lawful process of the court, or misbehavior so near thereto as to interfere with the immediate business of the court. The essence thereof is that the misconduct constitutes a direct affront to the dignity and authority of the court so that punishment is required to preserve the efficacy of the judicial system and the administration of justice. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980).

Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11 (1985). Additionally, in that case, the court reiterated the four criteria necessary to support a finding of contempt under 42 Pa.C.S. § 4131(2):

1. The order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited.
2. The contemnor must have had notice of the specific order or decree;
3. The act constituting the violation must have been volitional; and
4. The contemnor must have acted with wrongful intent.

Prior decisions of this and our Supreme Court have discussed the third and fourth elements of a volitional act with wrongful intent. In Commonwealth v. Washington, 466 Pa. 506, 508, 353 A.2d 806, 807 (1976), our Supreme Court stated “there is no contempt unless there is some sort of wrongful intent” and found that a defendant in a criminal action had been improperly held in contempt when he failed to appear in court at the appointed time due to oversleeping. In re James, 307 Pa.Super. 570, 453 A.2d 1033 (1982), found a similar result where an attorney was also late due to oversleeping. Weingrad v. Lippy, 300 Pa.Super. 76, 445 A.2d 1306 (1982), found a contempt charge reversed when imposed upon an attorney who delivered points for charge to a judge 23 minutes late. The evidence indicated that the appellant in that case had instructed his secretary to come in at 8:00 a.m. so the points could be typed and delivered to the court at 9:00 a.m. Upon arriving at court at 9:00 a.m. and finding that his points for charge had not been delivered, appellant phoned his secretary to have her deliver them at once.

In contrast, in Matter of James, 323 Pa.Super. 149, 470 A.2d 174 (1984), we affirmed the appellant attorney’s contempt for failure to appear in court at an appointed time when the tardiness was a direct result of his decision to see his client in jail. In that case we found the appellant’s act volitional, or knowingly made, and found imputed intent by virtue of the substantial certainty that the appellant’s action would result in his being tardy.

When the above cited cases are considered, it becomes apparent that the holding of appellant in contempt in this case was improper.

Initially, we must say that the holding of an individual in contempt for the actions of a third party would appear inappropriate and, therefore, unsupportable unless the individual conciously directed the third party to act as he did and possessed such authority over the third party that he could compel compliance with the directive. Perhaps then the act of a third party could be imputed to the directing party. However, even then it would be necessary to find wrongful intent. In the present case, the actions of appellant cannot be found either volitional or committed with wrongful intent. Consequently, the four necessary factors for finding an individual in contempt are not met. Sheriff Michel had no knowledge of his deputy’s failure to take the criminal defendant to the courtroom, took no steps to prevent the defendant’s appearance nor is there evidence of any intent to not present the defendant to the court on time.

While this court admires Judge Connelly’s desire to run an efficient courtroom, the exercise of greater discretion would have been more appropriate here. We in the judiciary cannot allow our zealousness to protect the court’s integrity to lead us down a path of unbridled oppression over those who perform functions for or appear before the court, lest our own actions go further to tarnish and impugn the integrity and reputation of the court than the negligent oversights of those whom we seek to hold in contempt.

Under the facts of the present case, we cannot find any indication of volition or willfulness on appellant’s part. Indeed, holding the Sheriff in contempt for negligently performing a function for the court seems quite incongruous to us. When a Sheriff performs the function of escorting prisoners or witnesses to and from court, he, not being an adversary or party before the court, would appear to be part of the court itself. Certainly the court cannot be thought of being comprised only of the judge himself. When such an individual acts deliberately and defiantly against the Court, perhaps, he could no longer be thought of as part of the court and the holding of such a person in contempt would seem to be within a judge’s discretion. However, when such an individual is held in contempt for an oversight while performing a court function, it is tantamount to the court slapping one hand with the other and makes little sense. Although appellant was fined only fifty dollars, the severe aspect of this case is that Sheriff Michel has had criminal sanctions imposed upon him. We hold that such action cannot be sustained under the circumstances in this case.

For the reasons set forth herein, the order of court denying appellant’s motion for reconsideration and ordering appellant to pay a fifty dollar fine is reversed.

Order reversed, jurisdiction relinquished.

      . This section is referenced to by the trial judge and reads:

        The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
      (2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.

      . Appellant argues that the first two criteria enumerated in Fensta-maker, above, are not met because there was no court order or decree issued which had been violated. Judge Connelly made quite clear that Michel would be held in contempt if his deputies were tardy with a witness or defendant. We have found no cases which indicate whether the order violated under this section must be a written one. However, similar to our decision in Weingrad v. Lippy, 300 Pa.Super. 76, 445 A.2d 1306 (1982), we do not believe there is a need to address this issue as we find that the third and fourth elements have not been met. Note, however, that in Matter of James, infra, we upheld the holding of an attorney in contempt for tardiness where there was not present a written order or decree. In that case the presiding panel of this court did not discuss the four enumerated criteria.


author: JOHNSON, Judge:

text:
    522 A.2d 94
    Domenic A. MACIOCE, and Anita M. Macioce, Appellants, v. Peter M. GLINATSIS, d/b/a Merchandise Distributors, also known as Merchandise Distributors of Large, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1986.
    Filed March 4, 1987.

      Michael I. Markowitz, Pittsburgh, for appellants.
    Vincent R. Baginski, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

We are asked to construe Pennsylvania Rule of Civil Procedure 2959(f) and determine whether a lien obtained by confession of judgment may be impaired, upon a stay of execution, by granting a judgment debtor access to certain garnisheed bank accounts without substitution of security. We think not, and reverse the order granting such access.

A complaint for confession of judgment was filed by Domenic A. Macioce and Anita M. Macioce (hereinafter the Macioces) against Peter M. Glinatsis. Pursuant to the Macioces’ complaint a confession of judgment was entered in the amount of $19,762.50. The Macioces filed a praecipe for a writ of execution upon the judgment and a writ was subsequently issued thereon naming Pittsburgh National Bank as garnishee. The writ was sent to the Sheriff of Westmoreland County who was directed to serve the writ and copies of interrogatories on the garnishee. The trial court thereafter issued a rule to show cause why the judgment entered by confession should not be opened. Pittsburgh National was served with the writ of execution and the interrogatories.

On February 8, 1985, the trial court issued an order granting a stay of execution on the judgment by confession and the sheriff’s sale and granting Glinatsis access to his accounts at Pittsburgh National Bank. On that same date the trial court vacated its first order of February 8, 1985 to the extent that Glinatsis was granted access to his Pittsburgh National accounts. On February 13, 1986 an order was entered which vacated the last order of February 8, 1985 and reinstated the first order of February 8, 1985 which granted Glinatsis access to his Pittsburgh National accounts and stayed the execution of judgment and sheriff’s sale. On February 21, 1985 Pittsburgh National filed its answers to the interrogatories and stated therein that it was not holding the Glinatsis accounts, pursuant to the order of February 13, 1985. Subsequently the Macioces filed a petition for reconsideration of the order of February 13, 1985 and a timely appeal from that February 13 order to this court.. On May 5, 1986 the trial court entered an order making absolute the rule to show cause opening the judgment and admitting Glinatsis to a defense.

In light of the order of May 5, 1986 opening the judgment, we will initially consider whether this appeal is moot. The basis of appellant’s argument is that the trial court improperly granted the appellee access to his bank accounts while the proceedings to open the judgment were pending. The fact that the judgment was subsequently opened appears to undermine any argument that the court’s conduct during the pendency of those proceedings was improper. However, in Adams v. James L. Leeds Company, 189 Pa. 544, 42 A. 195 (1899) our Supreme Court did consider the question of whether the trial court erred in setting aside an execution and attachments on an appeal from an order opening judgment. In Leeds, supra, the court affirmed the order opening the judgment while reversing that part of the order setting aside the execution and attachments. Thus under Leeds, it does not appear that this appeal is moot.

On appeal the Macioces raise two arguments for our consideration, (1) whether the order dissolving the lien of attachment on Glinatsis’ bank accounts was a violation of Pennsylvania Rule of Civil Procedure 2959(f), and (2) whether the order dissolving the lien of attachment on Glinatsis’ bank accounts was contrary to law where it was entered during the pendency of proceedings limited to opening the judgment entered by confession.

Appellants argue that the order in question violates Pa.R. C.P. 2959(f) because by allowing Glinatsis access to his Pittsburgh National accounts the court effectively dissolves the lien of an attachment obtained under the confession of judgment. The Rules of Civil Procedure provide that:

The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

Pa.R.C.P. 2959(f).

In support of their argument appellants point to the fact that the order of February 13, 1985 was entered during the pendency of the proceedings to open judgment.

The language of Rule 2959(f) clearly provides that the lien of the judgment or attachment shall be preserved during the pendency of the proceedings to open the judgment. While the trial court may stay execution pending the decision on the petition to open, the filing of the petition to open judgment does not impair the lien of the judgment. The comments to Pa.R.C.P. 2959(f) specifically indicate that:

An order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding. 7 Stand.Pa.Prac. 172, 174 §§ 138, 142. To the contrary an order of court striking a judgment annuls the lien of the judgment or of any execution issued on it. 7 Stand.Pa.Prac. 244 §§ 223, 224.
However, the mere filing of a petition to open or strike a judgment does not affect the lien of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on the petition. Subdivision (f) has been added to Rule 2959 to restate this principle.

Explanatory Notes — 1979 to Pa.R.C.P. 2959(f). While we are aware that these comments to the rules are not binding, we may use them as an aid when interpreting the meaning of the rules. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982). A review of earlier case law demonstrates that Pa.R.C.P. 2959(f) restates a principle of long standing in this Commonwealth that a judgment does not lose its status by being opened and it is still a lien. Markof-ski, et ux. v. Yanks, 297 Pa. 74, 146 A. 569, (1929) Giles v. Ryan, 317 Pa. 65, 176 A. 1 (1935); Sanctis v. Lagerbusch, 213 Pa.Super. 483, 249 A.2d 919 (1968). Metropolitan Federal Savings and Loan Association of Eastern Pennsylvania v. Bailey, 244 Pa.Super. 452, 368 A.2d 808 (1976). In Rochester Machine Corporation v. Mulach Steel Corp., 287 Pa.Super. 270, 430 A.2d 280 (1981), reversed on other grounds, 498 Pa. 545, 449 A.2d 1366 (1982), this court found that Pa.R.C.P. 2959(f) clearly stated the procedures to be used by a court when opening a judgment. Relying on the language of Rule 2959(f) the court concluded that a judgment remains effective even after it has been opened, unless it is struck by order of court.

In seeking to reverse the order of February 8, 1985 granting the appellee access to his bank accounts, appellants also argue that the order in question is beyond the scope of the court’s power according to prevailing caselaw in this Commonwealth. We find this argument to be without merit. In Adams v. James L. Leeds Co., supra our Supreme Court said that:

The opening of a judgment which is a lien on real estate does not destroy or impair the lien, nor does it necessarily affect the lien of a levy made upon personalty under an execution issued on the judgment. The liens in either case may and should be continued pending the determination of the issues relating to the validity of the judgment, and to the nature and amount of the indebtedness represented by it.

Id., 189 Pa. at 547, 42 A. at 196. In that case the court affirmed the trial court’s decision to open the judgment but found erroneous its decision to set aside the execution and attachments as it deprived the plaintiff in the judgment of the security of the liens on the personalty. See also McIlvain v. James L. Leeds Co., 189 Pa. 638, 42 A. 307 (1899).

In staying the execution of the judgment and sheriff’s sale and granting the appellee access to his bank accounts, the trial court found that the appellee had business and personal assets, other than the bank accounts, sufficient to support a judgment in favor of appellants. Opinion, 7/22/86 at 1-2. Consequently, the court found the bank accounts in question to be unnecessary security. As authority for its action the trial court relied upon this court’s decision in Highway Equipment Company v. Hamlin Coal Company, 230 Pa.Super. 311, 326 A.2d 570 (1974).

In Hamlin Coal, supra we considered whether the trial court had erred in opening a default judgment and refusing to set aside garnishments and attachments entered upon the judgment which was opened. This Court affirmed the order opening the judgment and reversed the order refusing to set aside a lien of attachments. We found that since an order opening a judgment is interlocutory, the trial court retained the authority to control the judgment, garnishments, attachments and executions entered on that judgment.

Contrary to appellant’s assertion, Hamlin is not inconsistent with the decision in Leeds. In Leeds the question was not one of the trial court’s authority to act. The question addressed by the court in Leeds was whether the court abused its discretion in setting aside an execution and attachment where the court’s action deprived the plaintiff in the judgment of the security afforded him by liens upon personalty belonging to the defendant. The supreme court determined that the plaintiff was entitled to the security afforded by the liens, pending the proceedings upon the opened judgment, unless other equivalent security was substituted for it and approved by the court.

Other than its broad finding that the appellee had other personal and business assets sufficient to support a judgment, the trial court in the instant case does not appear to follow the course set forth by the supreme court in Leeds.

Consequently, to the extent that the order in question stays the execution on the judgment and sheriff’s sale, we affirm. However, we reverse that part of the order granting the appellee access to the garnished Pittsburgh National accounts, since adequate substitute security was not provided. We reinstate that part of the February 8, 1985 order which denied Glinatsis access to his garnished Pittsburgh National Bank accounts.

Order affirmed in part and reversed in part.


author: BECK, Judge:

text:
    522 A.2d 97
    Charles G. ROSS and Mildred G. Ross, His Wife, Appellants, v. GULF OIL CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed March 13, 1987.

      Joseph J. Musto, Wilkes-Barre, for appellants.
    Ronald V. Santora, Wilkes-Barre, for appellee.
    Before WICKERSHAM,  McEWEN and BECK, JJ.

       This Decision was rendered prior to the resignation of Judge Wicker-sham.

   BECK, Judge:

The issue on appeal is whether a lessor may eject a lessee when the lessee engages in unlawful activity on the leased premises and the lease is silent as to the remedy available. The lower court held that the lessor could not prevail in an action for ejectment. We affirm.

There is no dispute as to the material facts in this case. In 1966 the Rosses, who are the appellant-lessors, entered into a lease with Gulf Oil Corporation (“Gulf”). Gulf leased the premises in question for a term of fifteen years. The lease included three five-year renewal options. Under the lease, Gulf made substantial improvements which included the building of a service station. With certain exceptions, all improvements made by Gulf revert to the lessors upon termination of the lease. Under the lease Gulf agreed to hold the lessors harmless for damages caused by the negligence or fault of Gulf, its sublessees or assigns, in the operation of the service station. The issue before us arises because the lease is silent as to rights and remedies available to the lessor in the event that lessee engages in unlawful activity on the leased premises.

In 1978, Gulf drilled a bore hole into an abandoned coal mine beneath the surface of the premises in order to discharge sewage accumulated at the service station. The Rosses repeatedly requested that Gulf cease this method of discharge and offered an alternative means of sewage disposal on their adjacent property. Gulf continued to dump the sewage into the mine.

In 1981, the Rosses commenced this action in ejectment. They averred that Gulfs method of sewage disposal was unlawful, and that they suffered damages including embarrassment and exposure to potential liability for the cost of cleaning up the pollution which may occur in public waters as a result of Gulfs sewage disposal method. At trial, the Rosses produced evidence showing that Gulfs sewage disposal activity was unlawful. Gulf did not present contradictory evidence. Without specifying the statutes violated the trial court determined that Gulfs activity was unlawful. The court, nevertheless concluded that the Rosses could not prevail in an action based on ejectment. We agree.

The Rosses alleged that Gulfs conduct amounted to a misdemeanor violation of the Pennsylvania Anthracite Coal Mine Act, 52 Pa.Stat.Ann. § 70-524 (Purdon 1966); and a violation of the sewage permit requirement, Pa.Stat.Ann. tit. 35 § 750.7(a) (Purdon 1977). They also allege that the sewage pollution affects public waters in violation of Pa. StatAnn. tit. 35 § 691.401 (Purdon 1977). These violations result in a public nuisance. Id., Pa.Stat.Ann. tit. 35 § 750.14 (Purdon 1977); Pa.Stat.Ann. tit. 35 § 691.602 (Pur-don Supp.1986). None of these statutes provide a lessor with the remedy of ejectment against a lessee who violates them.

Noting that the lease is silent on the question and that the statutes do not provide an ejectment remedy for the lessor, we examine the law applicable to the instant case. A lease is in the nature of a contract and is controlled by principles of contract law. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). If the rights, duties and remedies of the lease are to be extended beyond the clear meaning of the lease, the burden is on the party so claiming to show that the parties intended such extension either by provisions of the contract or by implication. Harnish v. Shannon, 12 Pa. D. & C.2d 54, 60, 64 (1957), aff'd, 392 Pa. 419, 141 A.2d 347 (1958) (per curiam).

The Rosses argue that under the common law a tenant’s use of leased premises in violation - of the law justifies termination of the lease and permits the lessor to eject the tenant. In essence they argue that under common law Gulf has breached the lease. We do not agree.

The Rosses rely on Burke v. Bryant, 283 Pa. 114, 128 A. 821 (1925). The Burke case was decided by the Pennsylvania Supreme Court during the prohibition era and involved tenants whose activity on the premises violated the National Prohibition Act commonly known as the “Volstead Act”, ch. 85, 41 Stat. 305 (1919) (repealed ch. 740, 49 Stat. 872 (1935)). The Court affirmed the termination of the lease because the Volstead Act itself contained a provision permitting a landlord to terminate a lease for violation of the act. We emphasize that the determinative factor in Burke was the forfeiture provision of the Volstead Act. The Court did not consider whether in the absence of a statute providing for forfeiture the landlord could eject a tenant for unlawful activity. The holding in Burke is therefore inapposite.

The Rosses urge us to rely on dicta in Burke to affirm their position:

If violators of the law were permitted to remain in possession, enforcement would be rendered increasingly difficult, whereas if the premises are returned, the maintenance of the public morality is secured. It is very important that a lawless occupant should be completely ejected by a law-abiding lessor.

283 Pa. at 119, 128 A. at 823.

We decline to rely on this quoted dicta and note that it is not stated as an independent proposition of law but in support for the Court’s conclusion affirming the Court’s termination of the lease based on the violation of the Volstead Act. The parties to a lease must be able to rely on the terms for which they bargained in an arms-length transaction. The lease in the instant case is not a form lease, but an individually tailored and negotiated document. For example, the Rosses desired to protect themselves against damages caused by Gulf on the premises. They therefore negotiated a hold harmless clause. If they desired to protect themselves from unlawful activity on the part of Gulf, they could have made provision therefor in the lease agreement. See Wissahickon Realty Corp. v. Boyle, 385 Pa. 198, 122 A.2d 720 (1956).

If the lease is silent as to the consequence of unlawful activity, neither party should be able to point to the violation to support their voiding the lease unless a statute or ordinance so provides. If a landlord could eject a tenant for every violation of the law, then a landlord could purposefully seek out a tenant’s minor infraction in order to eject one tenant in favor of a prospectivee, perhaps higher paying tenant. For example, a tenant who failed to shovel snow from his sidewalk would be subject to ejectment. Or the landlord could threaten ejectment as a coercive ploy in the renegotiation of an option to lease, thereby procuring more favorable terms for himself. A tenant, especially one who makes considerable improvements on his property, could lose the bargain of the lease if he could be ejected for an infraction of the law, however minor.

Since the building on the property reverts to the Rosses upon termination of the lease, ejectment would permit the Rosses to obtain the service station built by Gulf years before Gulf’s last option expired. The Rosses could then rent the premises with the service station and would perhaps be in a position to receive a windfall.

We note that we do not leave the Rosses without a remedy. See 202 Marketplace v. Evans Products Co., 593 F.Supp. 1133 (E.D.Pa.1984). They have remedies specified in the lease including remedies for damages based on the “save harmless” clause in the lease. Protected by the “save harmless” clause, the Rosses will not ultimately suffer damages from any required pollution clean-up. They also may pursue statutory remedies such as the remedy in Pa.Stat.Ann. tit. 35 § 691.601 (Purdon 1977), which provides that if the Department of Environmental Resources fails to act, a person having an' interest adversely affected by the violation of the statute may commence judicial action against the violator in order to abate the nuisance or against the Department of Environment. Resources to compel enforcement.

Order affirmed.

      . The common law has implied a covenant in a lease and then permitted forfeiture upon breach only in a very narrow factual context; that is when the lessee denies title in the lessor. Institute of Protestant Deaconess v. Lingenfelser, 296 Pa. 493, 146 A. 123 (1929), Jones v. Stiffler, 137 Pa.Super. 133, 8 A.2d 455 (1939). We do not find this proposition of law applicable.

      . The Burke dicta is supported by Restatement (Second) of Property, § 12.5(1) (1977).


text:
    522 A.2d 100
    FARABAUGH CHEVROLET-OLDSMOBILE, INC., Appellant, v. COVENANT MANAGEMENT, INC., John A. Salathe and Darcy C. Salathe.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1986.
    Filed March 13, 1987.

      Richard F. Flickinger, Ligonier, for appellant.
    Charles P. Falk, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Farabaugh Chevrolet-Oldsmobile, Inc., (Farabaugh), commenced an action against Covenant Management Inc., (Covenant) and John & Darcy Salathe. When the case was called for trial Covenant and the Salathes were present, but Farabaugh failed to appear. The court granted the motion of Covenant and the Salathes for a nonsuit under Pa.R.C.P. 218. Farabaugh later commenced a second action based on the same claim. The court granted the motion of Covenant and the Salathes for judgment in their favor but denied their counterclaim for attorney’s fees. Farabaugh appeals to this Court and argues that the nonsuit entered against it in the first case was a voluntary nonsuit and that as such it should have been permitted to commence the second suit.

When this appeal was called for oral argument on December 17, 1986, counsel for Farabaugh did not appear and did not communicate any reason for not being ready to proceed to the court. Counsel for Covenant and the Salathes was present and was granted leave to proceed ex parte. Although we could dismiss this appeal as of course, pursuant to Pa.R.A.P. 2314, we deem it appropriate to respond to the contentions set forth in Farabaugh’s brief.

In its argument in its brief before this Court, Farabaugh relies upon Scharf v. Richard DeCou Company, 320 Pa. 552, 183 A. 41 (1936). The plaintiff in Scharf commenced an action to recover for personal injury sustained in an accident. Both plaintiff and his counsel failed to appear in court when the case was called for trial. Plaintiff later moved to take off the nonsuit. The motion was refused and from that refusal plaintiff did not appeal. Plaintiff later instituted a second suit based upon the same accident. Defendant petitioned for judgment against plaintiff on the ground that the matter was res judicata. The lower court ruled in defendant’s favor. The Supreme Court of Pennsylvania reversed. The supreme court found that res judicata did not apply because plaintiff had not had his day in court and would not be deprived of it under the circumstances of that case. One of these circumstances discussed by the court was that plaintiff’s counsel explained to the court his failure to appear.

In the case at bar, Farabaugh offers no explanation of its failure to appear when the first case was called for trial. Farabaugh never sought to have the trial court remove the nonsuit. Thus it not only offers no explanation for its failure to this Court, but did not even attempt to offer one to the trial court.

If a party submits a motion to the trial court to take off a non-suit and" fails to provide the court with a satisfactory excuse for being unprepared, the court can properly refuse to take off the nonsuit. Snyder v. Port Authority of Allegheny County, 259 Pa.Super. 448, 393 A.2d 911 (1978).

Thus, if Farabaugh had moved in the trial court to take off the nonsuit it would have been required to present the court with a satisfactory excuse for the failure to appear when the case was called. What Farabaugh attempts to do now is to bypass that step, commence a second action and when confronted with Covenant and Salathes’ motion for entry of judgment, offer no explanation for its prior failure to appear.

We agree with Farabaugh that res judicata is not a bar to its claim, since there was no adjudication on the merits. Scharfv. Richard DeCou Company, 320 Pa. 552, 183 A. 41 (1936). Farabaugh also attempts to characterize the nonsuit entered below as a voluntary nonsuit, so that it can avail itself of Pa.R.C.P. 231. This rule allows a plaintiff to commence a second action upon the same cause of action following a voluntary nonsuit upon payment of the costs of the former action. Pa.R.C.P. 231(a). However, Pa.R.C.P. 218, under which the nonsuit in this case was entered, provides:

When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion.

Pa.R.C.P. 218. The rule thus does not refer to a non-suit, such as the one entered here, as a voluntary non-suit. Farabaugh presents this Court with no case law, nor has our research disclosed any which would require that such a non-suit be classified as a voluntary non-suit for Rule 231 purposes. Since Farabaugh has in no way explained its failure to appear in the first case, and never even moved in the lower court to take off the non-suit, we believe the trial court properly entered judgment in favor of Covenant and the Salathes.

Order entering judgment in favor of Covenant and the Salathes affirmed.