text:
    504 A.2d 925
    Charles R. PASTERNAK, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed Jan. 31, 1986.

      Mark F. Geary, Pittsburgh, for appellant.
    Frank M. Gianola, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER,. JJ.
   WIEAND, Judge:

Charles R. Pasternak was injured when, on June 13, 1977, his motorcycle was struck by an automobile owned and operated by Robert A. Heckman. Heckman’s liability carrier paid $15,000, its policy limits, in settlement of Pasternak’s claim. Pasternak then filed a claim against his insurance carrier, State Farm Mutual Automobile Insurance Company, under the uninsured motorist provisions of the policy. State Farm denied the claim. Pasternak then requested arbitration pursuant to policy provisions by which the parties had agreed to resolve their disputes by statutory arbitration. A hearing was held before arbitrators on July 29, 1980. At the hearing, the parties specifically agreed that the Arbitration Act of 1927 was applicable to and controlling of the proceedings. In January, 1981, the arbitrators awarded Pasternak the sum of $45,000. The trial court, on petition of State Farm, set aside the award on December 22, 1983. It did so because the award was contrary to law. The court held that the uninsured motorist feature of the policy did not have application where the third party motorist was “underinsured.” Pasternak appealed.

The contract between the parties, as we have observed, provided for arbitration under the Act of 1927. At the hearing before arbitrators the parties also agreed that the arbitration was being held under the Act of 1927. By the time the award was entered in January, 1981, however, the Act of 1927 had been repealed and replaced by the Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq. We conclude that under these circumstances, the Act of 1927 was nevertheless controlling. See: Vogel v. National Grange Mutual Insurance Co., 332 Pa.Super. 384, 386-387 n. 2, 481 A.2d 668, 669 n. 2 (1984) (law extant at time cause of action arises governs subsequent arbitration). See also: McDonald v. Keystone Insurance Co., 313 Pa.Super. 404, 407 n. 3, 459 A.2d 1292, 1294 n. 3 (1983). Therefore, the trial court could set aside or modify the award as being contrary to law. See: Act of April 27, 1927, P.L. 381, No. 248, § 11(d), 5 P.S. § 171(d); State Farm Mutual Automobile Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978).

Even if we look to the Uniform Arbitration Act to determine our scope of review, the result must be the same. Section 501(b) of the Uniform Arbitration Act of October 5, 1980, P.L. 693, which has been reprinted as part of the Historical Note at 42 Pa.C.S. § 7302, provides as follows:

The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
(1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration.
(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.

The standard of review is set forth in 42 Pa.C.S. § 7302(d)(2) as follows:

Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

Where, as here, there is an agreement to arbitrate which was made prior to the effective date of the Uniform Act and which provided for statutory arbitration, and where the parties expressly agreed that arbitration should proceed in accordance with the Act of 1927, an award entered pursuant to such arbitration could properly be modified or corrected by a court for an error of law.

In the instant case, the arbitrators determined that inasmuch as the tortfeasor, Heckman, had been “underinsured” as to the full value of appellant’s damages, he was “uninsured” for purposes of applying State Farm’s policy providing uninsured motorists benefits. This was contrary to law. See: Davis v. Government Employees Insurance Co., 500 Pa. 84, 454 A.2d 973 (1982); Bromley v. Erie Insurance Group, 322 Pa.Super. 542, 469 A.2d 1124 (1983); Ragin v. Royal Globe Insurance Co., 315 Pa.Super. 179, 461 A.2d 856 (1983); McDonald v. Keystone Insurance Co., supra; Young v. United States Fidelity & Guaranty Co., 299 Pa.Super. 237, 445 A.2d 542 (1982). See also: Safeco Insurance Co. of America v. Wetherill, 622 F.2d 685 (3d Cir.1980); Travelers Insurance Co. v. McDermott, 499 F.Supp. 1016 (E.D.Pa.1980); Prudential Property & Casualty Insurance Co. v. Pont, 489 F.Supp. 9 (E.D.Pa.1979).

Therefore, the trial court was required to correct the arbitrators’ award. Although the trial judge’s order “vacated” the award, it is clear that he did not intend to vacate the award in the manner provided in 42 Pa.C.S. § 7314. Instead, he “corrected” the award for an error of law and denied appellant’s right to recover uninsured motorist benefits. This becomes quite clear when one compares the trial judge’s opinion with the pertinent sections of the Uniform Act. The award was contrary to law and subject to correction; it was not a product of defective or unlawful proceedings rendering it subject to being vacated.

Appellant argues also that the award should not have been “corrected” because at the time it was entered it was not contrary to law. It was not until sometime thereafter, he suggests, that the appellate courts refused to apply “uninsured” motorist coverage to “underinsured” motorists. We reject this argument. The interpretation of the term “uninsured” has not changed. Neither the statute nor the decisions of the appellate courts have ever equated “underinsured” with “uninsured.” Therefore, appellant’s argument that the Supreme Court’s holding in Davis v. Government Employees Insurance Co., supra, should not be applied retroactively is misplaced. The law in this Commonwealth has never been that a driver whose insurance coverage is insufficient to fully compensate for the injuries caused by his negligence was “uninsured” to the extent of the insufficiency. While the appellate courts of this Commonwealth had not yet ruled on the issue at the time that the arbitrators’ decision was made in this case, it is clear that the law has always been contrary to the award made by the arbitrators.

The order of the trial court is affirmed.

      . The arbitrators “stacked” the coverages on three vehicles.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    504 A.2d 927
    COMMONWEALTH of Pennsylvania, Appellee, v. Regis BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1985.
    Filed Jan. 31, 1986.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

Regis Brown was tried nonjury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1). After the guilty verdict had been recorded, Brown requested orally that he be placed in the ARD program. His request was denied because it was untimely. In post-trial motions, Brown repeated his request that he be included in the ARD program and alleged that his pre-trial counsel had been ineffective for failing to file a pre-trial motion to compel the District Attorney to nominate him for the ARD program. The post-trial motions were also denied, and Brown was sentenced to pay a fine and undergo imprisonment for not less than forty-eight hours nor more than six months. On direct appeal from the judgment of sentence, Brown argues that his pre-trial counsel was ineffective for failing to move pre-trial to compel his acceptance into the ARD program and that the trial court, in any event, committed error in refusing to compel the district attorney to accept him into the ARD program in response to his post-trial request. We reject these arguments and affirm the judgment of sentence.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the Supreme Court considered whether a person charged with driving while under the influence of alcohol might be admitted into an ARD program over objection by the district attorney. The Court held that “no criminal defendant, including a person charged with drunk driving, may move his own admission to ARD.” Id., 508 Pa. at 312, 495 A.2d at 936. Instead, the Court concluded, the several district attorneys “have the sole discretion ... to move for the admission of a defendant into ARD.” Id., 508 Pa. at 306, 495 A.2d at 932.

[T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

Id., 508 Pa. at 310, 495 A.2d at 935. See also: Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979), appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980). Cf. State v. Dalglish, 86 N.J. 503, 506, 432 A.2d 74, 75 (1981) (prosecutorial decision denying admission into pretrial intervention program subject to review for patent and gross abuse of discretion, i.e., subverting the goals underlying the pretrial intervention program).

There was no abuse of discretion by the District Attorney of Allegheny County in this case. Although his thought processes do not appear on the record, two significant facts do appear. While appellant was awaiting trial on the instant charges, he was again arrested and charged with driving while under the influence of alcohol. Appellant concedes that his second arrest may have been a proper reason for refusing to admit him to the ARD program, but argues that this impediment was removed post-trial when he was acquitted in a separate trial. The ARD program, however, is a pre-trial diversionary program; and it is not available in lieu of sentencing after a defendant has been tried and found guilty. The pre-trial decision of the district attorney to withhold ARD for appellant does not appear to have been based upon improper considerations. It appears, rather, to have been based upon considerations of public protection and an unlikelihood that appellant would benefit from participation in the ARD program. Not only was there evidence of a second arrest while appellant was awaiting trial, but there was also a suggestion, contained in a pre-sentence investigation and referred to at sentencing, that appellant had once before been admitted to the ARD program. Under these circumstances, it cannot be said that the District Attorney’s decision was subject to reversal for abuse of discretion.

Appellant’s present counsel, who was also trial counsel, was not the same attorney who represented appellant during pre-trial negotiations with the district attorney regarding appellant’s participation in the ARD program. Through present counsel, appellant contended in post-trial motions and contends now on appeal that pre-trial counsel was ineffective for failing to file a pre-trial motion to compel the district attorney to nominate appellant for ARD. It is readily apparent, however, that there is no merit in this contention. As we have seen, appellant had no right to demand participation in ARD; the decision was discretionary with the District Attorney of Allegheny County. Commonwealth v. Lutz, supra. A petition to compel the District Attorney to nominate appellant for ARD, therefore, would have been unavailing. Counsel will not be deemed ineffective for failing to file a nonmeritorious motion. See: Commonwealth v. Bradley, 326 Pa.Super. 262, 473 A.2d 1082 (1984); Commonwealth v. Kenney, 317 Pa.Super. 175, 463 A.2d 1142 (1983). See also: Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984); Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984).

The brief filed in this Court may conceivably be interpreted as implying that present counsel was also ineffective for failing to file a motion prior to trial to compel appellant’s acceptance into the ARD program. Because we have decided this issue in the context of pre-trial counsel’s stewardship, however, it is not necessary to remand so that appellant can employ new counsel. Compare: Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984). With respect to any duty on the part of present counsel, the issue is moot. Commonwealth v. Belmonte, 349 Pa.Super. —, —, 502 A.2d 1241, 1250 (1985) (Opinion by Tamilia, J.).

The judgment of sentence is affirmed.


author: BECK, Judge:

text:
    504 A.2d 930
    COMMONWEALTH of Pennsylvania v. Richard WHITE, a/k/a Richard Mangham, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1985.
    Filed Jan. 31, 1986.

      Paulette J. Balogh, Assistant District Attorney, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

On appeal appellant raises a single challenge: whether the trial court erred by refusing to instruct the jury that a mandatory sentence (under 42 Pa.C.S.A. § 9712(a)) would be imposed upon appellant if he was found guilty.

The jury found appellant guilty and the court imposed the mandatory sentence. The appellant’s attorney had requested that the jury be informed that guilt carried with it the mandatory sentence. The trial court refused to so inform the jury.

We find that the trial court was correct. The function of the jury is to determine guilt or innocence. According to the Pennsylvania Supreme Court “the jury has nothing to do with the punishment of an offense, ... [i]n all other instances, punishment is a matter solely for the court and not for the jury to know or consider during its deliberations.” Commonwealth v. Lucier, 424 Pa. 47, 49, 225 A.2d 890, 891 (1967). See also Commonwealth v. Waters, 334 Pa.Super. 513, 522, 483 A.2d 855, 860 (1984); Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 457, 418 A.2d 493, 496 (1980).

Visible possession of a firearm is not an element of a crime punishable under § 9712. Commonwealth v. Wright, 508 Pa. 25, 35, 494 A.2d 354, 359 (1985); Commonwealth v. Norris, 346 Pa.Super. 351, 355, 499 A.2d 644, 647 (1985). Defendants charged under § 9712, therefore, have no right to a trial by jury to determine the application of the act. Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887, 889 (1985); Commonwealth v. Cofoni, 349 Pa.Super. 407, 503 A.2d 431 (1986). Accordingly, the trial court in the case sub judice did not err in refusing the appellant’s requested instruction.

Judgment of sentence affirmed.


author: JOHNSON, Judge:

text:
    504 A.2d 931
    COMMONWEALTH of Pennsylvania v. Michael BARANIAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 12, 1985.
    Filed Jan. 31, 1986.

      Joseph B. Policicchio, Somerset, for appellant.
    George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.

      Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This case comes before us on appeal from the judgment of sentence entered against Appellant, Michael Baraniak, on May 8, 1984. For reasons hereinafter set forth, we affirm the judgment of sentence for burglary, vacate the judgment of sentence for indecent assault and attempted rape, and remand for resentencing on the conviction for attempted rape.

Appellant contends: (1) that the trial court incorrectly construed 42 Pa.C.S. § 9727 (Disposition of persons found guilty but mentally ill) as mandating the maximum period of probation; (2) that the trial court erred by sentencing Appellant on the charge of indecent assault, which merges with the charge of rape; and (3) that the sentences of incarceration and consecutive probation of long duration are too severe.

Susan Kacsur, the victim of the June 5,1983 incident, met Appellant in approximately December of 1982. She dated Appellant on several occasions thereafter, but found him to be very possessive, often telephoning her as many as three times a day. At one point Appellant asked Ms. Kacsur to marry him, but she refused his proposal.

At approximately 9:30 p.m. on the evening of June 4, 1983, Appellant paid an uninvited visit to the Kacsur home. Appellant was very upset with Ms. Kacsur, telling her that she was “no good,” and “a Daddy’s girl” and that she “would never be anything.” Appellant stayed approximately 15 minutes, leaving when Ms. Kacsur’s parents returned home.

Thereafter, in the early morning hours of June 5, 1983, Appellant climbed through the kitchen window of the Kacsur family home, and entered Ms. Kacsur’s bedroom. Upon awakening, Ms. Kacsur observed Appellant standing, almost naked, in her room. Appellant then removed the remainder of his clothing, pinned Ms. Kacsur down, kissed her, pulled and ripped her clothing and attempted to have intercourse with her.

Hearing her screams, Ms. Kacsur’s parents came to her aid. Mr. Kacsur called the Somerset Borough Police, who arrived almost immediately and took Appellant into custody.

Following a jury trial, Appellant was found “guilty but mentally ill” of the offenses of burglary, criminal trespass, attempted rape and indecent assault. The trial judge then molded the verdict to read “guilty but mentally ill” on the charges of burglary and attempted rape.

At the time of sentencing, the court found that Appellant was severely mentally ill, but that he was in remission from that condition and not severely mentally disabled within the meaning of 42 Pa.C.S. § 9727(a). The court found, further, that Appellant was in need of continued treatment on an outpatient basis and sentenced Appellant to four months to two years’, less one day, imprisonment on the charge of indecent assault; to twenty years’ consecutive probation on the burglary charge; and to ten years’ concurrent probation on the attempted rape.

Appellant timely filed a motion for modification of sentence which was, subsequently, denied. This appeal followed.

Appellant contends that the trial court incorrectly construed Section 9727 as mandating the maximum period of probation. We disagree.

42 Pa.C.S. § 9727(f) provides:

(f) Probation.—
(1) If an offender who is found guilty but mentally ill is placed on probation, the court may, upon recommendation of the district attorney or upon its own initiative, make treatment a condition of probation.
(2) Reports as specified by the trial judge shall be filed with the probation officer and the sentencing court. Failure to continue treatment, including the refusal to take such drugs as may be prescribed, except by agreement of the sentencing court, shall be a basis for the institution of probation violation hearings. The period of probation shall be the maximum permitted by law and shall not be reduced without receipt and consideration by the court of a mental health status report like that required in subsection (c).
(3) Treatment shall be provided by an agency approved by the Department of Public Welfare or, with the approval of the sentencing court and at individual expense, by private agencies, private physicians or other mental health personnel. A mental health status report, containing the information set forth in subsection (c), shall be filed with the probation officer and thé sentencing court every three months during the period of probation. If a motion on a petition to discontinue probation is made by the defendant, the probation officer shall request a report as specified from the treating facility.

When interpreting a statute we are guided by the “plain meaning” rule of construction. 1 Pa.C.S. § 1903; Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). The plain words of a statute cannot be disregarded where the language is free and clear from all ambiguity. Hyser v. Allegheny County, 61 Pa.Commw. 169, 434 A.2d 1308 (1981).

Section 9727(f)(2) clearly states that “[t]he period of probation shall be the maximum permitted by law....” It is Appellant’s position, however, that the requirement of maximum probation set forth by Section 9727(f)(2) is tailored for those situations where the mental status, prognosis and future of the offender are uncertain and that, in such cases, probation of long duration allows the court the opportunity to follow the progress of the defendant and to discontinue probation when the court determines that the offender can function in society without court supervision.

Foremost among the rules of statutory construction is the rule that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). See also Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982). However, where, as here, the words of the statute are clear and free from ambiguity, the letter of that statute may not be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). See also Salvado v. Prudential Property and Casualty Insurance Company, 287 Pa.Super. 304, 430 A.2d 297 (1981).

Section 9727(f)(2) unambiguously provides that the period of probation shall be the maximum permitted by law. The word “shall” is generally regarded as imperative, Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 417 Pa. 299, 208 A.2d 271 (1965), although it can also, at times, be regarded as directory. Matter of Columbia Borough, 24 Pa.Commw. 190, 354 A.2d 277 (1976).

While the word “shall” might, in a proper setting, be interpreted as permissive, the word “may” can never be given the imperative meaning. Weiner v. Hospital Service Plan of the Lehigh Valley, 187 Pa.Super. 244, 144 A.2d 575 (1958). Thus, a closer look at Section 9727(f) demonstrates that under Section 9727(f)(1), “[i]f an offender who is found guilty but mentally ill is placed on probation, the court may ... make treatment a condition of probation;” and, under Section 9727(f)(2), “[f]ailure to continue treatment, including the refusal to take such drugs as may be prescribed, except by agreement of the sentencing court, shall be a basis — ” (Emphasis added.) In view of the legislature’s careful use of the terms “may” and “shall” in the very section, and subsection, in question it seems clear, and thus we hold, that the inclusion of “shall,” when referring to the obligation of the court to assign the maximum period of probation permitted by law, was intended to convey the lack of court discretion in that regard. See Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982).

Having determined that the court was obligated to impose the maximum period of probation permitted by law, we look to see whether the probationary terms ordered by the court were, in fact, proper.

Burglary is a felony of the first degree, 18 Pa.C.S. § 3502, punishable by a term of imprisonment not to exceed twenty years. 18 Pa.C.S. § 1103(1). Attempted rape is a felony of the second degree, 18 Pa.C.S. §§ 3121, 905(a), punishable by a term of imprisonment not to exceed ten years. 18 Pa.C.S. § 1103(2). Probationary terms may not exceed the maximum term for which a defendant could be confined. 42 Pa.C.S. § 9754(a); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Thus, in the instant case, the terms of probation imposed upon Appellant by the trial court — twenty years’ probation on the conviction for burglary and ten years’ concurrent probation on the conviction for attempted rape — were entirely in keeping with the mandate of 42 Pa.C.S. § 9727(f)(2), that the period of probation, where treatment has been ordered, shall be the maximum permitted by law.

Because we have concluded that the maximum period of probation permitted by law is mandatory, we need not address Appellant’s contention that evidence presented at the sentencing hearing should have been sufficient to enable the court to impose a shorter probationary period. Nor do we reach any conclusion with regard to what type of “report as specified by the trial judge” may be necessary to satisfy the mandate of Section 9727(f)(2).

Appellant also contends, and the Commonwealth agrees, that the trial court erred when it sentenced Appellant on the charge of indecent assault which merges with, and is a lesser included offense of, attempted rape. We agree. See Johnson v. Commonwealth, 499 Pa. 380, 453 A.2d 922 (1982); Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983). Appellant suggests that the indecent assault sentence should be stricken off, and the attempted rape sentence affirmed, so that the sentence would be simply a term of probation of ten years concurrent with the probationary term imposed as to the burglary charge. Appellant offers no support for such a proposition, however. We agree with the trial court that the motion for modification of sentence on this ground should have been granted by vacating the sentences on indecent assault and attempted rape and, instead, sentencing Appellant on the charge of attempted rape to a term of incarceration of not less than 4 months nor more than 2 years less one day, thus resulting in the same aggregate sentence on all charges. See Opinion, 1/10/85 at 2-3. See also Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). We, therefore, vacate the judgment of sentence imposed upon Appellant for indecent assault and attempted rape, and remand for resentencing on the conviction for attempted rape.

Appellant argues, finally, that the sentences, of incarceration and consecutive probation of long duration were too severe, given Appellant’s lack of a prior criminal record, his mental condition at the time of the offense and testimony at sentencing regarding the effect of such a sentence upon Appellant’s then mental condition.

We are vacating the judgment of sentence for indecent assault and attempted rape, and remanding for resentencing on the conviction for attempted rape; we, therefore, take no position regarding Appellant’s contention that the sentence of incarceration for indecent assault, and consecutive sentence of probation for attempted rape, were too severe. Regarding the sentence of probation for burglary, we have herein held that, according to the mandate of Section 9727(f)(2), the court was obligated to impose the maximum period of probation permitted by law. This the court did. However, pursuant to Section 9727(a), the court could have sentenced Appellant to a term of incarceration on the conviction for burglary. The court, in its discretion, did not do so. We fail to perceive that, under the circumstances, the sentence of probation imposed upon Appellant was too severe.

Judgment of sentence for burglary is affirmed. Judgment of sentence for indecent assault and attempted rape is vacated, and the case is remanded for resentencing on the conviction for attempted rape.

      . 42 Pa.C.S. § 9727.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 3503(b)(1)(i) and (iii).

      . 18 Pa.C.S. § 3121(1).

      . 18 Pa.C.S. § 3126.

      . 42 Pa.C.S. § 9727(a) provides:
      § 9727. Disposition of persons found guilty but mentally ill
      (a) Imposition of sentence — A defendant found guilty but mentally ill or whose plea of guilty but mentally ill is accepted under the provisions of 18 Pa.C.S. § 314 (relating to guilty but mentally ill) may have any sentence imposed on him which may lawfully be imposed on any defendant convicted of the same offense. Before imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally disabled and in need of treatment pursuant to the provisions of the act of July 9, 1976 (P.L. 817, No. 143), known as the "Mental Health Procedures Act.”


text:
    504 A.2d 935
    Paul C. COOKE, Jr., Appellant, v. TRAVELERS INSURANCE CO. and Fireman’s Insurance Co. of Newark, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Feb. 13, 1986.

      James V. Fareri, Stroudsburg, for appellant.
    Edward H. McGee, Allentown, for appellees.

      Before WIEAND, CERCONE and ROBERTS, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether the trial court erred when it held as a matter of law that no-fault work loss benefits could not be recovered by a claimant who sustained injuries when he fell while descending from a tank truck which he had mounted for the purpose of priming a pump thereon. We conclude that the court’s ruling must be reversed.

An action in assumpsit was instituted by Paul C. Cooke, Jr., the appellant, for the purpose of recovering work loss benefits from Fireman’s Insurance Company of Newark (Fireman’s), the appellee, which had written the insurance on the truck. After all of the evidence had been presented to a jury, the trial court granted a motion for directed verdict in favor of Fireman’s on the grounds that Cooke had not been a “victim” of an accident within the terms of the Pennsylvania No-fault Motor Vehicle Insurance Act. Post-trial motions were denied, and judgment was entered in favor of Fireman’s. Cooke appealed.

Paul C. Cooke, Jr., was employed as a laborer by the Nyleve Company at a construction project in Yardley, Pennsylvania. On September 11, 1981, he was using a power saw to cut concrete on a bridge which spanned the Delaware River. The blade of the saw was cooled by water funnelled from a water tank situated on a flatbed truck. When Cooke found himself in need of water, he drove the truck across the bridge into New Jersey, intending to get water from the Raritan Channel. Although the tank was equipped with a self-priming pump, on this occasion the pump’s self-priming mechanism did not work properly. Therefore, in order to prime the pump, Cooke climbed onto the water tank and poured water into a hose attached to the tank. He testified that he “got the thing running all right ... and I went to get down, and this is when I slipped ... when I slipped, I was standing on a pipe, off the bed of the truck ... I fell, and I hit my chest on the chest bone on this pipe, and from there, I continued to fall down, and hit the bed of the truck, or the side of the truck....” (Record, p. 21a).

The No-fault Motor Vehicle Insurance Act, at section 201(b), 40 P.S. § 1009.201(b), provides as follows:

If the accident resulting in injury occurs outside of this Commonwealth, a victim ... is entitled to receive basic loss benefits if such victim was or is:
(1) an insured; or
(2) the driver or other occupant of a secured vehicle.

When the words of a statute are clear and free of ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Statutory Construction Act, Act of Dec. 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S. § 1921(b). Section 103 of the No-fault Act defines “victim” as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” “Maintenance or use of a motor vehicle,” in turn, “means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include ... conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.” “The word ‘alight’ means ‘to spring down, get down, or descend (as ... from a vehicle)....’” Dull v. Employers Mutual Casualty Co., 278 Pa.Super. 569, 572, 420 A.2d 688, 689 (1980), quoting Webster’s Third New International Dictionary 1561 (unabridged 1967).

On a motion for directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is made and must accept as true all evidence which supports that party’s contention and must reject all adverse testimony. East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa.Super. 464, 468, 484 A.2d 797, 798 (1984), quoting Lattanze v. Silverstrini, 302 Pa.Super. 217, 220, 448 A.2d 605, 606 (1982); Heffner By Heffner v. Schad, 330 Pa.Super. 101, 105, 478 A.2d 1372, 1374 (1984); Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892-893 (1984); Beary v. Pennsylvania Electric Co., 322 Pa.Super. 52, 56, 469 A.2d 176, 178 (1983). A directed verdict may be granted only where the facts are clear and there is no room for doubt. East Texas Motor Freight, Diamond Division v. Lloyd, supra, 335 Pa.Superior Ct. at 468, 484 A.2d at 799, quoting Lattanze v. Silverstrini, supra; Beary v. Pennsylvania Electric Co., supra.

Cooke testified on direct examination that he slipped and fell as he started to descend from the truck. From this evidence a jury could have found that Cooke was “alighting” from the truck when he fell. Therefore, the trial court erred by holding as a matter of law that appellant was not a victim of an accident arising out of the use or maintenance of a motor vehicle. The entry of a directed verdict in favor of the no-fault carrier must be reversed.

Reversed and remanded for a new trial. Jurisdiction is not retained.

CERCONE, J., did not participate in the decision of this appeal.

      . The complaint also named as a defendant the Travelers Insurance Company, but this claim was settled prior to trial.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . The truck was owned by Wilmer R. Schultz, Inc., a Pennsylvania corporation.

      . 40 P.S. § 1009.103.

      . Although there was evidence from which a jury could have found that appellant fell while he was siphoning water into the tank on the truck, this evidence at best created an issue of fact for the jury to resolve.


text:
    504 A.2d 937
    Leo CLYMIRE and Rita Clymire, his wife v. David L. McKIVITZ, Robert McKivitz and Jeanne M. McKivitz, and Household Finance Consumer Discount Company. Appeal of Rita CLYMIRE.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed Feb. 3, 1986.

      Gilbert H. Ludwig, McKeesport, for appellant.
    Alden E. Bowen, Pittsburgh, for David McKivitz, appellee.
    Thomas J. Michael, Pittsburgh, for McKivitz, appellees.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

This is an appeal from an order striking a default judgment entered against David L. McKivitz. The judgment was entered after McKivitz had failed to answer a complaint filed against him and his parents by Leo and Rita Clymire. We agree that the record does not support the default judgment and, therefore, affirm.

On June 1, 1984, Leo and Rita Clymire, husband and wife, caused a summons in equity to be issued against David L. McKivitz, Robert McKivitz and Jeanne M. McKivitz. The summons was served by Joseph Panucci, Sr., an adult person, who, on June 18, 1984, handed a copy of the writ of summons “to Robert McKivitz, an adult person and being one of the Defendants and a member of the family with which said Defendants reside.” Panucci, according to his affidavit, left additional copies with Robert McKivitz for the other two named defendants. On August 2, 1984, an appearance was entered on behalf of Robert and Jeanne McKivitz. No Appearance, however, was entered on behalf of David L. McKivitz. A multi-count complaint was filed by the Clymires on August 31, 1984. In this complaint they alleged, inter alia, that David McKivitz was indebted to them on a promissory note given in payment of the purchase price of a tract of real estate which McKivitz had purchased from them and subsequently conveyed to his father, Robert McKivitz. The latter, in turn, had allegedly placed title in the names of himself and his wife as tenants by the entireties, all before the promissory note had been paid by David McKivitz or reduced to judgment. The complaint, although endorsed with a notice to plead, did not contain a notice to defend as required by Pa.R.C.P. 1018.1. The record also does not disclose that the complaint was ever served on David L. McKivitz.

On September 21, 1984, preliminary objections were filed on behalf of Robert and Jeanne McKivitz. No pleading, however, was filed on behalf of David McKivitz. On November 19, 1984, the Clymires caused a default judgment to be entered against David McKivitz for failure to file an answer. Pursuant to praecipe, the prothonotary assessed damages on the second count of the complaint in the amount of $6,087.50. Damages on the third and fourth counts were to be determined by the court after hearing.

On December 6, 1984, David McKivitz filed a petition to strike the default judgment which had been entered against him. He alleged that the judgment was defective because (1) the complaint had not been endorsed with a notice to defend; (2) because he had not been served with a copy of the complaint; and (3) because he had not been a member of his parents’ household when the summons had been served upon his father, Robert McKivitz. Following argument, the trial court sustained the petition and struck the default judgment. The Clymires appealed. After an appeal had been filed, the trial judge prepared and filed an opinion in which he stated that his reason for striking the judgment had been that the record did “not show that David McKivitz was personally served with the writ of summons and does not show his residence....”

The law pertaining to the striking of judgments was reviewed in Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980) as follows:

A petition to strike a judgment is a common law proceeding. Hamborsky v. Magyar Presbyterian Church, 78 Pa.Super. 519, 522 (1922), and operates as a demurrer to the record, Advance Building Services Co. v. F. & M. Schaefer Brewing Co., 252 Pa.Super. 579, 582 n. 3, 384 A.2d 931, 932 n. 3 (1978), citing, Master Homecraft Co. v. Zimmerman, 208 Pa.Super. 401, 222 A.2d 440 (1966). Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will 'not be considered, and if the record is self-sustaining, the judgment will not be stricken. Cameron v. Great Atlantic and Pacific Tea Co., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979); Advance Bldg. Services Co. v. F. & M. Schaefer Brewing Co., supra; Metropolitan Federal Savings & Loan Ass’n of Eastern Pennsylvania v. Bailey, 244 Pa.Super. 452, 368 A.2d 808 (1976)....

Id., 279 Pa.Superior Ct. at 375, 421 A.2d at 247. See also: Parliament Industries, Inc. v. William H. Vaughan & Co., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983); Haggerty v. Fetner, 332 Pa.Super. 333, 343, 481 A.2d 641, 646 (1984); Ruehl v. Maxwell Steel Co., 327 Pa.Super. 39, 42, 474 A.2d 1162, 1163 (1984); Podolak v. Artisan’s Valve Repair, Inc., 323 Pa.Super. 232, 234, 470 A.2d 567, 567 (1983).

The record in this case is fatally defective. In the first place, the record does not disclose that the complaint was ever served upon the appellee, David L. McKivitz. Assuming, without deciding, that the summons was properly served upon him by leaving a copy thereof with his father, that service, i.e., of the writ of summons, did not excuse the need to serve the complaint after it had been filed. A writ of summons is “only a simple notice to the defendant that the plaintiff has instituted suit against him and that the defendant is ‘required to defend or a default judgment may be entered against’ him. [It] does not create a judgment by default for want of an appearance. The default judgment may be entered ... only as authorized by Rule 1037.... Indeed, [the service of a writ of summons] imposes no duty whatever upon the defendant until the plaintiff files and serves his complaint, to which the defendant will be required to plead, if it is properly endorsed.” 1 Goodrich-Amram 2d § 1007:4. (emphasis added). The record in this case does not disclose that the complaint was ever served upon David McKivitz. This is a fatal defect.

Appellees’ default judgment against David McKivitz is also defective because the complaint failed to contain a notice to defend as required by Pa.R.C.P. 1018.1. Where, as here, the complaint does not contain a notice to defend, the defendant is under no obligation to file an answer, and a default judgment for want thereof is not authorized. Pa.R. C.P. 1037(b). See also: Hutchko v. Coll, 103 Montg.Co.L.Rep. 235, 237 (1977). Cf. Lewandowski v. Crawford, 208 Pa.Super. 365, 222 A.2d 601 (1966).

In view of appellants’ failure to serve upon appellee a complaint containing a notice to defend, the default judgment for failure to file an answer is defective, and the trial court properly caused it to be stricken. In view of these defects, which are apparent on the face of the record, it is unnecessary to consider appellee’s objection that the writ of summons was improperly served upon him by leaving a copy for him at the home of parents with whom he did not reside. We observe, however, that if service of the writ of summons was improper for this reason, the defect is not apparent on the face of the record.

Our decision is based upon defects apparent from the face of the record and does not depend upon facts dehors the record. Therefore, any deficiency in the verification attached to appellee’s petition to strike is of no consequence. Verification of a petition is required only where the petition contains allegations of fact which do not already appear of record. Pa.R.C.P. 206.

Order affirmed.

      . These preliminary objections were dismissed by the trial court on November 1, 1984.

      . The praecipe for judgment contained a copy of a notice of intention to enter default judgment, the original of which allegedly had been directed to David McKivitz at the home of his parents, Robert and Jeanne McKivitz.

      . The manner of service is established by Pa.R.C.P. 1027 as follows: A party filing a pleading, other than a complaint by. which an action is commenced or a complaint used as alternative process as provided by Rule 1010(e), shall forthwith serve it on every other party
      (1) by leaving a copy for or mailing a copy to him at the address endorsed on an appearance or prior pleading of the party, but if there is no such endorsement, then

      (2) by leaving a copy for or mailing a copy to him at the residence or place of business of the party or the address of the party’s attorney of record, but if there is no such residence or place of business and no attorney of record, then
      (3) by leaving a copy for him with the prothonotary of the court in which the action was commenced for the use of the other party, (emphasis added).

      . The verification attached to appellee’s petition to strike the judgment was signed by appellee’s attorney. In reliance upon Pa.R.C.P. 1002, which suggests that verification by a party’s attorney is not authorized, appellants filed preliminary objections to appellee’s petition to strike. These preliminary objections were dismissed by the trial court.


author: CIRILLO, Judge:

text:
    504 A.2d 940
    COMMONWEALTH of Pennsylvania v. Mark HAMMOND, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed Feb. 3, 1986.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, BECK, and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Allegheny County. Following a trial by jury, appellant Mark Hammond was found guilty , of robbery; post-verdict motions were denied. Hammond received a prison term of twenty-four to forty-eight months. We affirm.

Appellant urges three trial court errors. First, he contends the jury was improperly coerced into reaching a guilty verdict. He next maintains the jury was improperly instructed on the meaning of “reasonable doubt.” Finally, appellant argues that the trial court abused its discretion in applying the “deadly weapon enhancement” provision of the Sentencing Guidelines, 42 P.C.S. § 9721.

After the jury returned with its initial guilty verdict, the jurors were polled at defense counsel’s request. It was discovered that two of the jurors disagreed with the verdict. Consequently, the trial judge re-instructed the jurors and sent them back to deliberate further. They came back with a verdict of guilty. Appellant urges that the instructions given prior to the second round of deliberations were coercive in violation of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). Specifically, appellant finds such coerciveness based on three sentences included in the judge’s instructions: “You cannot be discharged from your duties until you have reached a unanimous verdict; ... each juror should not hesitate to re-examine his or her own view; ... come back with a verdict.”

If the statements relied upon by appellant were the sum total of the judge’s instructions, we might find coerciveness. However, as appellant himself points out, we cannot base a finding of error on isolated sentences that are without any context; it is the effect of the jury charge as a whole that is controlling. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Melendez, 326 Pa.Super. 531, 474 A.2d 617 (1984). When the jury instructions are read as a whole, it is clear that the dissenting jurors were not coerced into adopting a view not truly their own. The judge stated repeatedly that the jurors should not give in to their peers simply for the sake of ending the trial: "... none of you should surrender an honest conviction ... merely for the purpose of reaching a verdict.” While this might not be quite as strong as stating outright that jurors are free to disagree, such explicit language is not a necessary part of the jury instructions. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965).

Appellant maintains, however, that even when taken as a whole, the instructions had a coercive effect in light of the late hour of the day at which the jury was sent back to deliberate further. We disagree. As the trial judge observes in his opinion, the trial lasted for less than one day, and the jury had been out for only two hours. This was hardly a situation in which the jury was obviously deadlocked beyond hope. In sum, we find no defect in the jury instructions.

Appellant next argues that in its second charge to the jury, the trial judge improperly defined “reasonable doubt” to the prejudice of appellant. After explaining that it was incumbent upon the Commonwealth to prove appellant guilty beyond a reasonable doubt, the judge concluded, “If the Commonwealth does not meet its burden, then you should find him [appellant] not guilty.” (emphasis supplied). In appellant’s view, the judge’s failure to use the word “must” instead of “should” was error.

Again, we must consider the jury charge as a whole. The charge explains at considerable length that appellant shall be found not guilty unless each and every juror can assert, without a doubt that would cause him or her to hesitate in the conduct of his or her own affairs, that appellant was guilty as charged. We also note that Black’s Law Dictionary, Fifth Edition, defines “should” as implying a duty or obligation. The judge was therefore free to use the term, since he may use his own definition so long as it aptly sets forth the law. Commonwealth v. Melendez, supra. Taken as a whole, the charge sufficiently stated the applicable standard.

Finally, we consider appellant’s contention that the trial court erred in considering the “weapons enhancement” provision of the Sentencing Guidelines, 42 P.C.S. § 9721. Appellant maintains that the jury’s verdict of guilty of robbery does not necessarily mean the jury believed appellant had a gun at the time of the crime, since the victim may have feared bodily injury at the hands of appellant and his cohorts even if they were unarmed.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), our Supreme Court considered a separate but similar sentencing provision, 42 P.C.S. § 9712, which dictates a minimum mandatory sentence of five years for certain enumerated crimes committed with a firearm. The Court held that possession of the weapon was not itself an element of the crime charged, and only comes into play at the sentencing stage. Thus, there is no due process violation in applying the less demanding “preponderance of the evidence” standard in ascertaining whether the accused possessed a firearm at the time of the crime. See also Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985).

We find the same reasoning applicable here, especially since the provision in § 9721 is not as harsh as the § 9712 mandate considered in Commonwealth v. Wright, supra. Possession of a firearm is not an essential element of robbery, 18 P.C.S. § 3701, the crime of which appellant was convicted. Such weapon possession may thus be analyzed under the “preponderance of the evidence” test.

The victim testified that appellant possessed a firearm at the time of the incident. A police officer testified that the victim told him of this weapon shortly after the crime. Nothing was offered to negate this testimony. Appellant urges that the gun was never produced at trial; however, we agree with the trial judge that it would be absurd to require such proof in light of the ease with which a weapon can be discarded. Under the preponderance of the evidence standard, we are satisfied with the trial court’s conclusion that appellant did possess a firearm. Thus, 42 P.C.S. § 9721 was properly invoked.

The judgment of sentence is affirmed.

      . For this reason, we reject appellant’s wholesale reliance on Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). Since the instructions must be read as a whole, we cannot simply compare isolated sentences; the same words can be coercive in one context and proper in another.


text:
    504 A.2d 942
    MEYERS PLUMBING AND HEATING SUPPLY COMPANY, Appellant, v. Felix CASTE.
    Superior Court of Pennsylvania.
    Submitted Nov. 25, 1985.
    Filed Feb. 3, 1986.

      Marvin J. Apple, Pittsburgh, for appellant.
    Michael A. Stone, Pittsburgh, for appellee.
    Before CIRILLO, BECK and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from an order striking a mechanic’s lien. We affirm.

At the time this dispute, arose, the appellee, Felix Caste, was the owner of a 49 acre tract of land on which he planned to have 42 townhouses built. Appellee entered into an agreement with C & G Plumbing (C & G) for plumbing work to be furnished in connection with the townhouse project. The appellant, Meyers Plumbing and Heating Supply Company, extended credit to C & G for the purchase of plumbing materials that were used on the project. Prior to completion of their work, appellee Caste requested that C & G leave the site; therefore the contract was never completed. This fact is important insofar as it impacts on the basis of the claim. See generally, Fisher Sprinkler Co., Inc. v. Ide, 305 Pa.Super. 554, 451 A.2d 1015 (1982) (contractor sought to recover for labor and materials on a contract which he was barred from completing).

After filing the requisite notice, pursuant to 49 P.S. §§ 1501 and 1502, appellant filed a mechanic’s lien against the property and townhouses that constituted appellee’s project. The lien described the townhouses as a “building or structure [which] is a construction of 42 residential units located at Wyman Road, Whitehall Borough, Allegheny County, PA.” Although there are 42 townhouses, the lien still uses a singular subject and verb. The 42 units reportedly “consist of six (6) or eight (8) unit buildings.” Attached to the lien was a partial set of invoices which listed the type of material taken, and the amount charged by C & G.

This case comes before us on appeal from an order of the trial court granting appellee’s petition to strike the mechanic’s lien claim. Two issues are presented for our review: 1) whether appellant’s claim has not been apportioned as required by Section 306 of the Mechanics’ Lien Law of 1963, 49 P.S. § 1306(b); and 2) whether the claim did not include a detailed statement of the materials furnished by the appellant as required by Section 503 of the Mechanics’ Lien Law of 1963, 49 P.S. § 1503(6).

I

The first issue hinges on the interpretation of the word “plant” as used in 49 P.S. § 1306(b). Appellant argues that the statute permits one lien to be filed against the 42 townhouses which are the focus of the lien in this case. Appellee maintains that the statute does not permit a single lien to be filed against the 42 townhouses involved herein. Section 1306(b) requires that separate claims be filed against more than one “business or residential plant.” The word “plant” is not defined in the statute and no recent appellate court cases have construed Section 1306(b). We can, however, turn to several trial court opinions which have considered the issue. The present version of 1306(b) is based on Section 12, Act of 1901, 49 P.S. §§ 54, 55. The latest amendment of the statute was enacted in 1963.

One of the more recent trial court cases that has interpreted the current version of 1306(b) is Waite, Jr. v. Schneider, 57 D. & C.2d 788 (1972). In Schneider, the trial court considered the issue of whether Section 1306(b) required more than one lien claim to be filed when more than one townhouse was the focus of the lien. The case involved a drywall subcontractor who had filed a mechanic’s lien against 12 two-story townhouses. The court held that “a group of townhouses is not a residential plant within the meaning of the act.” Id. at 792. The Schneider court also observed the guidance offered by the comment following Section 1306(b), which provides:

The section is clarified to apply to both business or residential plants. Previous decisions under Section 12, Act of 1901, which used only the word “plant,” held that it was applicable only to structures used to carry on trade or business. The use of the words “residential plant” is not intended to change the previous law that a single claim cannot be filed against an entire row of separate residential dwellings. Todd v. Gernert, 223 Pa. 103 (1909) [sic], 72 A. 249.

(Emphasis added).

The Todd case involved a single claim under the 1901 Act for labor and materials. The single claim was filed against three separate dwelling houses. The Todd court held that three separate dwelling houses were not a “plant” for purposes of the 1901 Act.

Although the majority of commentaries and cases discuss the word “plant” in the context of the 1901 Act as opposed to the 1963 version, they are nonetheless helpful for our statutory analysis. (See Annot., 15 A.L.R.3d 73, 236 (1967); 23 P.L.E., Mechanics’ Liens § 23; 53 Am.Jur.2d, Mechanics’ Liens § 198 (1970); 20 Standard Pennsylvania Practice 2d, Mechanics’ Liens § 105:104. In Goodyear v. Emele, 13 North Co.R. 103 (1912), 15 A.L.R.3d 73, 236-37 (1967), the court considered whether the statutory term “plant” applied to a double house with a continuous roof. The structure was divided by a party wall, had no connecting openings, and had separate entrances and exits. The court held that the description of “plant” was not applicable; therefore, a “single mechanic’s lien could not be filed against this entire ‘structure’ or double house.” 15 A.L.R.3d 73, 237 (1967). The court pointed out that “the term ‘residential plant’ did not mean two or more houses built together at the same time, but meant a dwelling house and ... garage ... or some similar building being necessary and used for the convenience of the dwellers in the residence.” 15 A.L.R.3d at 237. Cf West Philadelphia Brick Co. v. J.D. Johnson & Co., 3 Pa.Super. 220 (1897) (interpretation of 1806 Act).

Some cases have given importance to the number of contracts involved in the supply of labor or materials. That is, the number of contracts may help to determine the applicability of the word “plant” as well as the existence of a single unit building. For example, in Bossen v. Nocella, 16 D. & C.2d 158 (1956), a contractor filed a single lien against 20 lots for material supplied for the construction of 20 separate houses pursuant to two contracts. The court held that a single lien in this scenario was fatally defective “because the group of dwelling houses could not properly be regarded as constituting a ‘plant’ ” within the meaning of the 1901 Act. Id. at 160, citing Michael Roofing Co. v. Macrides, 54 Lanc. 79 (1954).

In Schively v. Radell, 227 Pa. 434, 76 A. 209 (1910), where the owner of two lots made separate contracts for the buildings on each lot, the court addressed the issue of whether a subcontractor could file a single lien against two structures on two different lots. 0The court held that the 1901 Act did not permit one claim to be filed against two structures for materials furnished under more than one contract. See generally, Union Savings & Building Assn. v. Vahle, 235 Pa. 435, 84 A. 407 (1912) (better practice is to aver in a claim that several buildings are intended to form one plant); Pierce, Butler and Pierce Mfg. Co., Inc. v. Rogers, 60 Pa.Super. 293 (1915) (court may inquire into justness of apportioned claim); Sumption v. Rogers, 53 Pa.Super. 109, aff'd on other grounds, 242 Pa. 348, 89 A. 121 (1913) (discussion of apportioned claims); Fotheringham v. McPherson, 17 D. & C.2d 199 (1957) (interpretation of the term “plant” as used in the 1901 Act).

The foregoing discussion and authority support our conclusion that appellee’s several buildings, constituting the 42 unit townhouse project, are not subsumed by the term “plant” within the meaning of 49 P.S. § 1306(b). In addition, we find that it remains logical as well as grammatically correct to avoid the application of the singular word “plant” to more than one townhouse. See generally, Commonwealth v. Patchet, 284 Pa.Super. 252, 425 A.2d 798 (1981) (court must give effect to the obvious meaning of clear and unambiguous statutory language); 1 Pa.C.S.A. § 1921(b). Based on this reasoning, it is necessary to regard each townhouse in the housing project as a “residential plant” for purposes of 49 P.S. § 1306(b). Therefore, we affirm the finding of the trial court that the appellant failed to comply with 49 P.S. § 1306(b).

II

The second issue presented for our review concerns whether appellant conformed with 49 P.S. § 1503(6). We considered the interpretation of that statute in Fisher Sprinkler Co., Inc. v. Ide, 305 Pa.Super. 554, 451 A.2d 1015 (1982), wherein we examined the efforts of a contractor who sought to recover for labor and materials on a contract which, as in the case sub judice, he was barred from completing. In this context, it was stated that “Under the Mechanics’ Lien Law, a complaint that contains a general statement of labor and materials provided under a contract is only permissible where a contractor seeks to recover a sum of money established by a contract.” Id., 305 Pa.Superior Ct. at 559, 451 A.2d at 1018 (Cirillo, J., dissenting). In the Fisher case, the contractor filed a lien against the one building in which he performed his work. The majority found that the contractor satisfied the specificity requirements of the Mechanics’ Lien Law. See generally, Rush v. Able, 90 Pa. 153 (1879) (detailed itemization needed); Fitzpatrick v. Howes, 76 D. & C. 543 (1951) (failure to separate labor and materials renders claim defective); 23 P.L.E., Mechanics’ Lien § 26; 20 Standard Pennsylvania Practice, Mechanics’ Lien § 105:131. Cf Marchak v. McClure, 176 Pa.Super. 381, 108 A.2d 77 (1954) (substantial compliance with Act is sufficient).

Application of the foregoing supports our finding that the trial judge did not abuse his discretion in ruling that the appellant did not comply with Section 1503(6) in light of appellant’s failure to include all invoices for the material that he supplied on credit.

ORDER AFFIRMED.

      . 49 P.S. § 1306 provides:
      § 1306. Consolidation or apportionment of claims
      (a) Consolidation of Claims. Where a debt is incurred for labor or materials furnished continuously by the same claimant for work upon a single improvement but under more than one contract, the claimant may elect to file a single claim for the entire debt. In such case, “completion of the work" shall not be deemed to occur with respect to any of the contracts until it has occurred with respect to all of them.
      (b) Apportionment of Claims. Where a debt is incurred for labor or materials furnished by the same claimant for work upon several different improvements which do not form all or part of a single business or residential plant, the claimant shall file separate claims
        with respect to each such improvement, with the amount of each claim determined by apportionment of the total debt to the several improvements, and in such case, the amount of each separate claim may be less than five hundred dollars ($500), provided that the total debt exceeds five hundred dollars ($500). In no other case shall an apportioned claim be allowed. 1963, Aug. 24, P.L. 1175, No. 497, art. Ill, § 306.
      (Emphasis added).
      49 P.S. § 1201(1) defines the word improvement. 49 P.S. § 1201(1) provides:
      § 1201. Definitions
      The following words, terms and phrases when used in this act shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:
      (1) "Improvement" includes any building, structure or other improvement of whatsoever kind or character erected or constructed on land, together with the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended.

      . § 1503. Contents of claim
      The claim shall state:
      (1) the name of the party claimant, and whether he files as contractor or subcontractor;
      (2) the name and address of the owner or reputed owner;
      (3) the date of completion of the claimant's work;
      (4) if filed by a subcontractor, the name of the person with whom he contracted, and the dates on which preliminary notice, if required, and of formal notice of intention to file a claim was given;
      (5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished;
      (6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof;

      (7) the amount or sum claimed to be due; and
      (8) such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them. 1963, Aug. 24, P.L. 1175, No. 497, art. V, § 503. (Emphasis added).
      Comment — Joint State Government Commission 1964 Report
      Adapted from Section 11, Act of 1901, as amended 1905, April 17, P.L. 172, 49 P.S. 53. The requisites of the contents of the claim have been enlarged and clarified. Clauses (4) and (5) of this section restore in part the averments required to be set forth by the Act of 1901 prior to its amendment by the Act of 1905, supra. The provision in clause (4) requiring the setting forth of the dates of the preliminary notice and of the formal notice of intention is new and was not required by the Act of 1901, as amended. See Hamilton v. Means, 155 Pa.Super. 245, 250 (1944) [sic], 38 A.2d 528.


author: WICKERSHAM, Judge:

text:
    504 A.2d 1256
    Gilbert LOMBARDO v. Carmella DeMARCO, Vincent DeMarco, Marian F. Carbo, Nicholas A. Carbo, John B. Carbo, Paul J. Carbo, Peter A. Carbo, Margaret Carbo Hallman, Joseph Uriani, George Uriani, Rose Uriani Troilo, Carol Stahl, Dorothy Pascale, Rose Carbo, Florence Stansbery, Louis Parente, Jr., Isabella P. Cipollini, Joseph Parente, Marlene P. Lepone, and Lester Parente. Appeal of Vincent DeMARCO.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Dec. 30, 1985.
    Reargument Denied Feb. 25, 1986.

      Howard R. Golde, Bala Cynwyd, for appellant.
    Frank L. Caiola, Norristown, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

Vincent DeMarco, one of twenty-one co-owners of three tracts of land in West Norriton Township, Montgomery County, filed this lone appeal from an order directing partition of the tracts.

The real property in question was owned at one time by the parties’ common ancestor, Mary DeMarco. After her death in 1960, title to the property passed in equal shares to her seven children: Carmella DeMarco, Vincent DeMarco (appellant herein), Anna Carbo, Mary Uriani, Clara Lombardo, Florence Stansbery, and Rose Párente. Because Rose Párente predeceased her mother, however, Rose’s share of the property was divided equally among her six children. Since that time, Anna Carbo, Mary Uriani, and Clara Lombardo have also died, each leaving their respective one-seventh interest to their children. All of the parties own their respective interests as tenants in common.

On September 29, 1983, Gilbert Lombardo, one of Mary DeMarco’s grandchildren and owner of an undivided one-twenty-first interest in the real estate, filed a complaint in equity seeking partition of the property. He named as defendants the twenty other relatives upon whom interests in the property had passed. One of those relatives, his uncle Vincent DeMarco, filed preliminary objections to the complaint. The objections were overruled and various pleadings followed. On June 22, 1984, the lower court issued a rule upon Mr. DeMarco to show cause why a decree in partition should not be granted after a hearing on July 25, 1984. That hearing culminated in an order on October 15, 1984, directing partition and specifying the shares going to each of the twenty-one parties. This order

AND NOW, this 15th day of October, 1984, after hearing in open court, and upon receipt of Findings of Fact and Conclusions of Law it is
ORDERED, ADJUDGED and DECREED that partition be made of the lands mentioned and described in the complaint among the parties therein named in proportion to their respective interests therein, as follows:

VINCENT DEMARCO 1/7

JOSEPH URIANI 1/21

GEORGE URIANI 1/21

ROSALIE URIANI TROILO 1/21

NICHOLAS A. CARBO 1/49

(M.) ROSE CARBO 1/49

JOHN B. CARBO 1/49

MARIAN F. CARBO 1/49

PAUL J. CARBO 1/49

PETER A. CARBO 1/49

MARY CARBO HALLMAN 1/49

CAROL STAHL 1/21

DOROTHY PASCALE 1/21

GILBERT LOMBARDO 1/21

FLORENCE D. STANSBERY 1/7

CARMELA DEMARCO 1/7

was reduced to judgment on November 9, 1984, whereupon Mr. DeMarco filed this timely appeal. None of the other parties have appealed.

Appellant raises seven issues before us:

1. Did the lower court insure [appellant] an adequate opportunity for discovery?
2. Should the lower court have granted [appellant] a full trial in this case?
3. Should the lower court have permitted cross-examination of a witness regarding matters relating to a title search?
4. Did the plaintiff have an absolute right to partition in this case?
5. Was the order directing partition an unnecessary infringement upon the property rights of [appellant]?
6. Did the plaintiff come “unclean hands?” before the lower court with
LOUIS PARENTE, JR. 1/42 plus 1/168
ISABELLA CIPOLLINI 1/42 plus 1/168
JOSEPH PARENTE 1/42 plus 1/168
LESTER PARENTE 1/42 plus 1/168
MARLENE LEPONE 1/42
7. Did the lower court properly balance the equities in this case?

Brief for Appellant at 4.

The scope of appellate review of a decree in equity is particularly limited and such a decree will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Daley v. Hombaker, 325 Pa.Super. 172, 472 A.2d 703 (1984); Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982). The test is not whether we would have reached the same result on the evidence presented, but whether the judge’s conclusion can be reasonably drawn from the evidence. In re Estate of Tippins, 487 Pa. 107, 408 A.2d 1377 (1979); Hoffman v. Gekoski, 250 Pa.Super. 49, 378 A.2d 447 (1977). Where a reading of the record reasonably can be said to reflect the conclusions reached by the lower court sitting in equity, we cannot substitute our judgment for that of the lower court. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). The findings of the chancellor will not be reversed unless it appears that he clearly abused his discretion or committed an error of law. Id. Where, as here, however, the chancellor merely made conclusory findings, and made no specific findings of the important underlying facts necessary to support the ultimate conclusions, we must make an independent scrutiny of the record to determine whether these underlying facts are present. Lewkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971).

With this limited scope of review in mind, we have reviewed the record and will address each issue seriatim.

First, appellant complains that he was not given an adequate opportunity for discovery. Pa.R.C.P. No. 4001 provides that, except in a number of situations not relevant here, discovery is available in any civil action or proceeding at law or in equity. The rules do not establish a timetable for discovery, however, other than that the parties may proceed simultaneously with discovery and they may use methods of discovery in any order. Pa.R.C.P. No. 4007.3. It is the job of the trial court to oversee discovery between the parties and therefore, it is within that court’s discretion to determine the appropriate measures necessary to insure the adequate and prompt discovery of matters allowed by our rules. Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 473 A.2d 139 (1984).

Appellant argues that the thirty-two day period between issuance of the rule and the hearing date was an insufficient time to conduct discovery. We find, however, that appellant’s alleged lack of time for what he terms “adequate” discovery was not entirely court-made. Appellant argues that the petition filed on June 22, 1984, resulting in the rule to show cause and the setting of the July 25, 1984 hearing date, indicated that the pleadings had been closed. Consequently, he argues that he had only thirty-two days to pursue discovery. We disagree. Discovery is available to any party in a case long before the pleadings are closed. The only requirement is that the discovery must be in aid of proceedings already commenced, i.e. there is no pre-action discovery. Discovery is even available early in the case if necessary to enable a party to prepare his pleadings, assuming that the action has been commenced and that the party can show that the requested information is relevant. See generally, 6 Standard Pennsylvania Practice 2d §§ 34:4, 34:5.

The instant complaint was filed on September 29, 1983, signaling the commencement of the case. Appellee’s reply to the new matter in appellant’s answer was filed on April 3, 1984, signaling an end to the pleadings. See Pa.R.C.P. Nos. 1017(a), 1026. Even if appellant did not begin discovery until after the pleadings were closed, a typical but unnecessary practice, he had about three and a half months in which to conduct discovery. We cannot say that this was an unreasonable time in a case such as this, in which there was virtually no dispute over the identity of parties or what interests each had in the real estate in question. Furthermore, appellant does not provide us with what other discoverable information he wanted to obtain; he alleges only that the time was inadequate for him to engage in full and free acquisition of relevant pretrial information needed by him to fully and fairly prepare his defense. Finally, we note that while appellant complained at the hearing on July 25 about a lack of time for discovery, the record reveals no request by him either during the hearing or preceding the hearing for a continuance so he could have more time for discovery. Without such a request, we can hardly say that the lower court erred in not allowing more time for discovery.

Second, appellant complains that the lower court failed to give him a full trial on the issue of partition. Appellant is correct; he did not get a full trial, but rather a hearing on partition. We are not persuaded, however, that this was error.

Pa.R.C.P. No. 1557 states in pertinent part:

If the court determines that there shall be partition because of a default or admission or after a hearing or trial, the court shall enter an order directing partition which shall set forth the names of all the co-tenants and the nature and extent of their interests in the property.

We interpret this rule to clearly allow the lower court to make an order of partition following one of four events: a default, an admission, a hearing, or a trial. Assuming no default or admission, either a hearing or a trial is appropriate. The lower court herein chose the setting of a hearing in which to hear this case, at which witnesses were presented and testimony was taken. The decision on whether to have a hearing or a trial is discretionary with the trial judge, and we can find no abuse of that discretion herein.

Third, appellant claims error in the lower court’s refusal to allow him to cross-examine a witness concerning a material and relevant matter. The witness was a title researcher and the “material and relevant matter” concerned a title search of the real estate done in June 1981. During direct examination, the witness stated in response to a question asked by appellee’s counsel, that he had performed two title searches on the property, one in 1981 and one in 1984. Further direct questioning centered on the 1984 search. On cross-examination, appellant’s counsel asked for whom the witness had conducted the 1981 search. Counsel for appellee objected on the grounds of relevancy, but before the judge ruled, the witness answered that the 1981 search had been done for a Mr. Apt. After some additional testimony, the following exchange took place:

[COUNSEL FOR APPELLANT]: Why would Mr. Apt want a title search, and how does it relate to Mr. Lombardo and this hearing?
A. That, I will explain to you.
[COUNSEL FOR APPELLEE]: I object.
THE COURT: He has no way of knowing why somebody else did something.
[COUNSEL FOR APPELLANT]:
Q. Why is it that Mr. Lombardo found out about this title search, when, in fact, you did it for Mr. Apt?
[COUNSEL FOR APPELLEE]: I object to that question.
THE COURT: How does he know how Mr. Lombardo found out about it?
[COUNSEL FOR APPELLANT]: Is the objection overruled then, or sustained?
THE COURT: Objection sustained.
[COUNSEL FOR APPELLANT]: All right.

N.T. at 41-42. Appellant’s counsel then dropped this line of questioning and went on to the subject of the 1984 search.

Control of the scope and manner of cross-examination are within the sound discretion of the trial court and the court’s ruling thereon will not be reversed on appeal absent a clear abuse of that discretion or an error of law. Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984); Commonwealth v. Brown, 329 Pa.Super. 85, 477 A.2d 1364 (1984); Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). Furthermore, even if a ruling is erroneous, the error is not grounds for reversal unless it results in apparent injury. Commonwealth v. Hinton, 269 Pa.Super. 43, 409 A.2d 54 (1979). After examining the quoted testimony, however, we find neither abuse of discretion nor error of law. Why. a third party, unrelated to the instant litigation, wanted a title search done of the property three years earlier is possibly an interesting question, but it is hardly relevant to the 1984 title search done for this litigation. Furthermore, the witness could have no firsthand knowledge of why Mr.. Apt wanted the title search; he would only be able to guess at the reason, or at the most, repeat what, if anything, Mr. Apt told him. Therefore, we find no error in the lower court’s ruling.

The remaining four issues deal more specifically with the granting of the order of partition. Appellant argues that appellee had no absolute right to partition; that the order was an unnecessary infringement upon appellant’s property rights; that appellee had “unclean hands”; and that the court did not properly balance the equities of the case. We find all these issues to be meritless.

“Partition is a possessory action; its purpose and effect being to give to each of a number of joint owners the possession he is entitled to of his share in severalty.” Fry v. Stetson, 370 Pa. 132, 135, 87 A.2d 305, 307 (1952), quoting Johnson v. Gaul, 228 Pa. 75, 77 A. 399 (1910). It is an adversary action and its proceedings are compulsory. Seiders v. Giles, 141 Pa. 93, 21 A. 514 (1891). The rule is that the right to partition is an incident of a tenancy in common, and an absolute right. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976); Caldwell v. Snyder, 178 Pa. 420, 35 A. 996 (1896). See also, Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973) (partition is normally a matter of right); Hyatt v. Hyatt, 273 Pa.Super. 435, 417 A.2d 726 (1979) (appellant had an absolute right to seek partition).

Appellant cites a lower court case, Duffy v. Duffy, 81 D. & C. 366 (C.P.Mont.1951), in which it was stated that partition, like all equitable relief, is a matter of discretion in the chancellor and when a case is presented where equity would demand that partition be refused, the chancellor can do so. While we need not follow the Duffy decision, of course, we are not in total disagreement with its holding. We can envision a possible refusal to partition under certain circumstances, e.g., where the rules of civil procedure are not followed, where the parties are not all before the court, where the legal title to the land is unclear, where the interests of each party cannot be determined, where there was a waiver of, or an agreement concerning the right to partition, or where a decree in partition would violate public policy. See, e.g., Brown v. Lutheran Church, 23 Pa. 495 (1854) (partition of a burial ground denied on ground of public policy). The instant case, however, is free of these defects, and it is hardly one in which partition violates public policy. Appellee complied with rules concerning partition. He also introduced testimony as to the nature of the interest of each of the twenty-one parties and proved that the property was held by the parties as tenants in common. All parties but appellant, either through expression or inaction, appeared to be in agreement with appellee’s petition. The request for partition was properly made by appellee, who had a right to obtain that relief. This is not a case in which the equities demand that partition be refused.

Nor do we agree that the order of partition was an unnecessary infringement upon appellant’s property rights. While we sympathize with appellant, an elderly man who, as his attorney states, wants only “to be left alone and to enjoy his property,” a co-tenant does not possess the right to tie the hands of a fellow co-tenant from realizing his undivided property interest.

The right to have partition of property is one of the longstanding rules of property ownership under which persons acquire and continue to hold ownership of real estate in common with other persons, and its existence and the right to resort to it are necessary to prevent such ownership from becoming, in many cases, entirely useless and burdensome, for without it, one tenant in common could, by his unwillingness or inability to act, entirely deprive his cotenants of the benefits of ownership.

23 Standard Pennsylvania Practice 2d § 122:15 (footnote omitted). Appellant admits that there is no appellate authority in Pennsylvania to the effect that severe hardship, inconvenience, or pecuniary or other injury to a co-tenant (none of which was proved by appellant below) would be sufficient to prevent partition of real property. We decline to make such a rule at this time.

Appellant also argues that because appellee came before the court with “unclean hands,” the lower court should not have granted the equitable relief of partition. It is well-established that one who seeks equitable relief must enter the courtroom with clean hands. Harbor Marine Co. v. Nolan, 244 Pa.Super. 102, 366 A.2d 936 (1976). The application of the clean hands doctrine to deny such relief is within the discretion of the chancellor, and in exercising his discretion the chancellor is free not to apply the doctrine if a consideration of the entire record convinces him that an inequitable result will be reached by applying it. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976).

After a careful reading of the record, however, we do not believe that appellee’s hands were unclean. Appellant suggests that all twenty defendants were not advised of this proceeding. The record clearly shows, however, that appellee sent the required notice of the lawsuit to all parties. Appellee’s assertion that all parties except appellant were in agreement that partition and sale should take place was essentially correct. At the hearing, the legal representative for two of the defendants stated that while they did not necessarily agree that the property should be sold, they did not oppose partition, which is the only real issue at this stage of the case. We do not consider the above to rise to the level of purposeful misrepresentation to the court. We view in the same manner the testimony by appellee’s witness concerning the June 1984 title search. While we agree that appellee should not have stated in answer to interrogatories filed in April 1984, that he had completed an exhaustive title search, such a search was completed in June 1984, one month prior to the hearing. We see no harm to appellant by this misstatement, especially since the title and the shares of ownership were never seriously in question.

Finally, we are unconvinced that the lower court failed to properly balance the equities in this case. While the court’s opinion is brief, we have carefully reviewed the record and the applicable law, and we have considered appellant’s well-stated arguments. We have concluded that the lower court’s direction of partition of the property is supported by the evidence. Because there was neither abuse of discretion nor error of law, we affirm the order of partition.

Order of partition affirmed.

      . Louis Parente, Jr., Isabella Cipollini, Joseph Parente, Marlene Le-pone, and Lester Parente are the surviving children of Rose Parente. A sixth child, Anthony Parente, is deceased, and his proportionate share of the property was distributed among four of his siblings.

      . Rose Carbo, Maryanne Carbo, Nicholas Carbo, John Carbo, Paul Carbo, Peter Carbo, and Margaret Hallman are the children of Anna Carbo. Joseph Uriani, George Uriani, and Rosalie Troilo are the children of Mary Uriani. Carol Stahl, Dorothy Pascale, and Gilbert Lombardo are the children of Clara Lombardo.

      . The order stated in pertinent part:

      . Appellant filed neither exceptions nor a motion for post-trial relief in the lower court. We do not find, however, that on appeal his issues have been waived for the failure to ask for such post-trial relief. Under the Pennsylvania Rules of Civil Procedure, no exceptions may be filed to an order directing partition. Pa.R.C.P. No. 1557. Therefore, he would not be required to file a motion for post-trial relief under Pa.R.C.P. No. 227.1 either. Rather, an appeal may be taken as of right from an order directing partition. Pa.R.A.P. No. 311(a)(6). See Grubbs v. Dembec, 241 Pa.Super. 18, 359 A.2d 418 (1976) (rule providing for appeal from a partition action does not mandate an appeal, but makes it optional with the dissatisfied party whether to appeal the order preliminarily, or whether to proceed with the partition action and appeal from the final decree). Since there exists this interlocutory right of appeal from an order directing partition, appellant’s subsequent entry of judgment on that order was an unnecessary step in perfecting his appeal. We will ignore this procedural irregularity however, because the notice of appeal was filed well within the 30-day period following the order directing partition. See Pa.R.A.P. No. 903(a).

      . We note that there is appellate caselaw which states that although actions in partition are brought in equity, actions for sale and division of proceeds under 68 P.S. § 501 may not be avoided by such equitable defenses such as unclean hands. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). Since there is no statute involved in this case, however, we will address appellant’s unclean hands issue.


author: CAVANAUGH, Judge:

text:
    504 A.2d 1262
    Joan E. GORNIAK, Appellee, v. Michael E. GORNIAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 12, 1985.
    Filed Jan. 10, 1986.
    Reargument Denied March 12, 1986.

      William R. Cunningham, North East, for appellant.
    Charles D. Agresti, Erie, for appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   CAVANAUGH, Judge:

This case involves a petition for divorce filed by Joan E. Gorniak against her husband, Michael E. Gorniak. A master’s hearing was held at which the testimony apparently' was stenographically reported. The master’s report on page 28 directed that “stenographic costs for the master’s hearing” be shared equally between the parties. The master made findings of fact and recommended that a divorce be granted. He further made recommendations as to equitable distribution of marital property. The plaintiff and defendant filed exceptions to the master’s report. The court below in an opinion by Fischer, J. denied all exceptions and adopted the master’s recommendations as the order of the court. The defendant below, Michael E. Gorniak, appealed to this court.

The record as transmitted to this court does not contain a transcript of the proceedings before the master. In a divorce case it is the responsibility of this court to make a de novo evaluation of the record of the proceedings and to decide independently of the master and the court below whether there is a legal cause of action. Mott v. Mott, 308 Pa.Super. 1, 453 A.2d 1038 (1982); Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980). We are unable to properly review the record in a divorce case where there has been no transcript of the proceedings below. Moslen v. Moslen, 260 Pa.Super. 508, 394 A.2d 1042 (1978). In the case before us we have no transcript of the proceedings before the master and the docket entries indicate that none was filed in the court below. Pa.R.C.P. 1920.53 provides inter alia:

Rule 1920.53. Hearing by Master. Report
(a) In an action in which the action of divorce or for annulment and any claim which may be joined under the Divorce Code are heard by a master,
(1) the master shall file the record and a transcript of the testimony together with the report and recommendation within twenty days after the hearing in uncontested actions and, in contested actions, within thirty days after the receipt of the transcript by the master, and
(b) In an action in which the claim of divorce or annulment is contested, the master’s report shall contain findings of fact, conclusions of law and a recommendation. A transcript of the testimony, the exhibits, pleadings and other papers in the action shall be attached to the report. (Emphasis added.)

We must assume that the proceedings were steno-graphically recorded as the master directed that the stenographic costs be divided between the parties. Stenographic notes of testimony must be taken in any trial where factual issues are involved. Revocation of Restaurant Liquor License v. Commonwealth, 64 Pa. Commonwealth 566, 441 A.2d 491 (1982).

The Pennsylvania Rules of Appellate Procedure, Rule 1911, requires that “the appellant shall order any transcript required” and sets forth the form of order for transcript. Neither the docket entries, the notice of appeal or any other document in the record indicates that an order for transcript was filed. Pa.R.A.P. 1911(d) provides that “If the appellant fails to take the action required by these rules ... for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal. ” (Emphasis added.)

The appellant contends in his brief that the appellee was not the innocent and injured spouse and “in fact, her conduct was more outrageous than defendant’s ...” (Appellant’s brief page 5). The appellant also contends that the court below erred in accepting the valuation of the defendant’s business and in awarding alimony and counsel fees to the appellee. It is impossible for us to resolve the conflicting assertions before us without the benefit of the transcript of the proceedings. Since the appellant has not complied with the Rules of Appellate Procedure and we have no record before us on which to conduct our review, we shall dismiss the appeal.

Appeal dismissed.

      . Pa.R.A.P. 1922 provides:
      Rule 1922. Transcription of Notes of Testimony
      (a) General rule. Upon receipt of the order for transcript and any required deposit to secure the payment of transcript fees the official court reporter shall proceed to have his notes transcribed, and not later than 14 days after receipt of such order and any required deposit shall lodge the transcript (with proof of service of notice of such lodgment on all parties to the matter) with the clerk of the trial court.