text:
    449 A.2d 642
    COMMONWEALTH of Pennsylvania v. Bernard O’BRIEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed Aug. 13, 1982.

      John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

      Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

Appellant was found guilty by a jury of the offenses of aggravated assault, possession of an instrument of crime, and disorderly conduct. He was also found guilty by the court of the summary offense of public drunkenness. He argues, first, that the lower court erred in reading to the jury an incorrect point for charge submitted by the Commonwealth, and second, that he was improperly convicted of disorderly conduct as a misdemeanor of the third degree because the information only charged him with disorderly conduct as a summary offense. We find that the opinion of the lower court adequately disposes of appellant’s first argument. However, we agree with appellant’s second argument and therefore we vacate the judgment of sentence for disorderly conduct and discharge appellant as to that offense.

A purported variance between the indictment and the offense proved will not be fatal to the Commonwealth’s case unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof, or otherwise impairs a substantial right of the defendant. Commonwealth of Pope, 455 Pa. 384, 317 A.2d 887 (1974). Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense. Commonwealth v. Wolfe, 220 Pa. Superior Ct. 415, 289 A.2d 153 (1972).

Count 4 of the information charged appellant as follows:

And the District Attorney of the County of Luzerne further charges that Bernard O’Brien on the day and the year aforesaid, in said County, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, did make unreasonable noise on Searle Street, Pittstown, and used obscene language.

This was a charge of disorderly conduct as a summary offense, defined by 18 Pa.C.S.A. § 5503(a) as follows:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise
(3) uses obscene language, or makes an obscene gesture;

Disorderly conduct

... is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist.
18 Pa.C.S.A. § 5503(b).

Since no such intent or persistence, was alleged in the information, appellant was not charged with disorderly conduct as a misdemeanor of the third degree. Nevertheless, the lower court, in instructing the jury, defined the charge against appellant as disorderly conduct as a misdemeanor of the third degree; that is to say, the court told the jury that in order to find appellant guilty of disorderly conduct, it had “[to] be satisfied that the following three elements have been proven beyond a reasonable doubt”—the court then going on to say that these elements were unreasonable noise or obscene language; intent to cause public inconvenience; and “that [appellant] did so with the intent to cause substantial harm or serious inconvenience and that he persisted in such disorderly conduct after reasonable warning or request to desist.” N.T. 156-57.

The maximum penalty upon conviction of a summary offense is imprisonment of not more than ninety days, 18 Pa.C.S.A. § 1105, and a fine of $300, 18 Pa.C.S.A. § 1101(6). The maximum penalty upon conviction of a misdemeanor of the third degree, on the other hand, is one year imprisonment, 18 Pa.C.S.A. § 1104(3), and a fine of $2,500, 18 Pa.C. S.A. § 1101(5). This difference in potential penalty is so substantial that had appellant been aware from the trial’s inception that the jury would be at liberty to convict him of a misdemeanor, he might well have altered his trial strategy. Pa.R.C.P. 229 provides that the court “may allow an information to be amended when there is a defect in . .. the description of the offense .... Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.” The Commonwealth, however, never moved to amend the information.

The judgment of sentence for disorderly conduct is vacated and appellant is discharged as to that offense; otherwise, the judgment of sentence is affirmed.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    449 A.2d 644
    CITIZENS NATIONAL BANK OF EVANS CITY, Appellant, v. E. H. BILOWICH CONSTRUCTION CORPORATION, Edward H. Bilowich, an individual and Shirley Bilowich, an individual.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed Aug. 13, 1982.

      Richard L. McCandless, Butler, for appellant.
    James K. O’Malley, Pittsburgh, for appellees.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   HESTER, Judge:

E. H. Bilowich Construction Corporation (hereinafter “Corporation”) was incorporated in 1969 and is solely owned by Edward H. Bilowich, President. Shirley Bilowich, his wife, is the secretary of the Corporation. Beginning in 1971, the Corporation conducted its banking business with the Citizens National Bank of Evans City (hereinafter “Citizens”). Between 1971 and 1974 the Corporation had a line of credit with Citizens in varying amounts with the largest line being $150,000.00.

In 1973, Citizens’ loan officer in charge of the Bilowich account was James Streily. Thereafter, Mr. Streily assisted the Corporation in obtaining bid and performance bonds in connection with its construction operations. Mr. Streily became personally involved in the Corporation’s activities. He used the Corporation’s office and obtained building materials through the Corporation for his own use without reimbursing the Corporation.

Testimony appears in the record to the effect that, when the Corporation wanted to secure a bond in 1975, Mr. Streily sought compensation for rendering that service.

At approximately the same time, in June of 1975, a judgment note, which is the subject of this appeal was signed by Mr. Bilowich. It was allegedly signed in blank form, and it was not explained to him. A chattel mortgage and a second judgment note were also executed by Mr. Bilowich. These documents were also signed by Lena Buzanoski, the office secretary of the Bilowich Corporation. Miss Buzanoski testified that she forged the signature of Mrs. Bilowich to all three documents, under the direction of and in the presence of Mr. Streily. Miss Buzanoski also testified that she did not inform Mrs. Bilowich that she had forged her signature to these documents until May of 1978. However, Mr. Bilowich was apparently aware of the forgery as early as December of 1975. A handwriting expert also testified that the signature was a forgery, and this fact remains undisputed.

These loan documents, which established a line of credit for the Corporation up to $110,000.00, were dated June 13, 1975. The judgment note was entered in the Prothonotary’s Office in the Court of Common Pleas of Butler County on June 16, 1975 in the amount of $110,000.00 against the Corporation and against Mr. & Mrs. Bilowich individually. Notice of entry of the judgment was mailed to the business address of the Corporation by the Prothonotary on June 17, 1975. At the time, the Corporation owed Citizens $71,000.00. In June of 1975, the Bank advanced additional monies to the Corporation, so that the total loan to the Corporation was $110,000.00. Based upon a subsequent note date December 13, 1975, which was never recorded, the line of credit was increased to $150,000.00, but only a total of $135,000.00 was borrowed as of December 24, 1975. The Corporation repaid no monies on the principal amount of the loan from June 13, 1975 until July 13, 1976, when it paid $10,000.00. $15,000.00 was repaid on August 9, 1976, and $5,000.00 was repaid on September 13, 1976. When the Corporation sold a house on July 27, 1977, the interest was brought current and $10,-000.00 was paid on principal, leaving a balance of $100,000.00 plus interest from that date. No additional payments of interest or principal were made after that date.

On May 8, 1978, the Corporation and Mr. and Mrs. Bilowich filed a Petition to Strike Off and/or Open Judgment, and a Rule was issued against Citizens to show cause why said judgment should not be striken or opened. With respect to Mrs. Bilowich, the Petition alleged that her signature was a forgery. With respect to the Corporation and Mr. and Mrs. Bilowich, the Petition alleged that the note was executed by Mr. Bilowich in blank, was completed out of his presence in an unauthorized manner and was procured by material misrepresentations. The Petition further alleged that the note was improperly filed since it did not authorize a confession of judgment except upon default or maturity. The Petition further alleged that judgment was confessed for an improper purpose; that no default had occurred; to injure the credit of the Corporation thereby forcing the Corporation and Mr. Bilowich, to tender illegal consideration to Mr. Streily in return for his obtaining bonds required in the operation of the Corporation, and further, in retaliation for the refusal to pay illegal remuneration to Streily.

Following six full days of testimony, the Court of Common Pleas of Butler County, opened the judgment as to all defendants on August 26, 1980. Citizens filed the within appeal.

With respect to the opening of a judgment by confession, Pennsylvania Rule of Civil Procedure 2959(e), 42 Pa.C. S.A., states, inter alia, “If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.”

A petition to open a judgment by confession must be filed promptly and must aver a meritorious defense. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 438 A.2d 600 (Pa.Super., 1980); Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 392 A.2d 784 (1978); Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977).

Initially, Citizens challenges the promptness of the filing of the Petition. It argues that the Petition was not filed until two years and 11 months following the entry of the judgment by confession on June 13, 1975. With respect to Mrs. Bilowich, this challenge is without merit, since her forged signature on the judgment note renders it a nullity and without legal effect. Harris v. Harris, 428 Pa. 473, 239 A.2d 783 (1968). Furthermore, she apparently was unaware of the forgery until May of 1978, when the Petition was filed.

With respect to the Corporation and Mr. Bilowich, by the Bank’s own admission, all obligations of the Corporation were current as of July 27, 1977. The parties continued to conduct business throughout the remainder of 1975 and all of 1976. Accordingly, under these circumstances, there would appear to be no reason why appellees would contest the judgment until after July 27, 1977, or until the Bank attempted execution on the judgment. Furthermore, when Mr. Bilowich asked Streily about the judgment, according to his testimony, Streily replied, “Don’t worry about it. It doesn’t mean a thing.” Mr. Bilowich further testified that he consulted several attorneys to represent him concerning negotiations with the Bank. One attorney refused to represent him because of his personal business dealings with the Bank. Another attorney did conduct negotiations with the Bank and was able to obtain a release of certain property from the judgment. However, this attorney was not willing to handle any other litigation against the Bank. Finally, Mr. Bilowich retained counsel from Allegheny County.

Under these circumstances, we agree with the lower court that the Petition was promptly filed.

Especially in light of the allegations contained in the Petition concerning Mr. Streily, and in light of the fact that the parties continued to engage in business and the Corporation was current on its obligations as of July 27, 1977, we hold that the lower court did not abuse its discretion in entertaining the Petition to Open.

We also hold that the petition avers a meritorious defense with respect to all three appellees.

With respect to Mrs. Bilowich, there can be no doubt that the evidence concerning the forgery of her name, in a jury trial, would be submitted to the jury. Reliance Insurance Company v. Liberati, 489 Pa. 591, 414 A.2d 1049 (1980); First Pennsylvania Bank, N.A. v. Lehr, supra. With respect to Mr. Bilowich and the Corporation, we have previously held that “. . . one who signs a note containing blanks, impliedly authorizes the obligee to fill in the blanks.” M. H. Davis Estate Oil v. Sure Way Oil, 266 Pa.Super. 64, 72, 403 A.2d 95, 99 (1979). However, in that same case, we noted that, “Whether a fraud has been committed is almost always a question of fact for the jury, provided, however, that the evidence meets the so-called higher ‘equitable standard’ of proof, that is to say it is ‘clear, direct, precise, and convincing’. Kadilak’s Estate, 405 Pa. 238, 174 A.2d 870 (1961).” 266 Pa.Superior Ct. at 68, 403 A.2d at 97.

As a result of Rule 2959(e), the Court is prohibited from “weighing” the sufficiency of the evidence. Lehr, supra, 438 A.2d at 602. In the instant case, the petition avers a meritorious defense concerning the issues of fraud and forgery, so that the lower court did not abuse its discretion in opening the judgment. (See Judge Cavanaugh’s Dissent in Lehr, supra, 293 Pa.Superior Ct. at 202, 438 A.2d at 607; Price v. Geller, 292 Pa.Superior Ct. 455, 437 A.2d 763 (1981).)

Furthermore, in the instant case, the “subject matter of defense is attached to the judgment or the consideration on which it rests [Citations omitted].” Bell Federal Savings and Loan Association v. Laura Lanes, Inc., 291 Pa.Superior Ct. 395, 401, 435 A.2d 1285, 1288 (1981); Kardos v. Morris, 470 Pa. 341, 368 A.2d at 660.

Therefore, on the basis of our narrow scope of review, Lehr, supra, 293 Pa.Superior Ct. at 193, 438 A.2d at 602, we affirm the lower court’s decision.

      . Under the circumstances of this case, we do not address any issue concerning whether Mrs. Bilowich would be estopped from denying that the signature was authentic. If the Corporation’s secretary had executed her name, as a convenience, or with her knowledge or authorization, our decision may be different. However, the testimony in the instant case reveals that the signature was forged in the presence of the Bank’s lending officer. Furthermore, it would seem to be standard lending procedure to require that all obligors execute a note in the Bank’s presence.


text:
    449 A.2d 648
    The CITIZENS NATIONAL BANK OF EVANS CITY, Appellant, v. E. H. BILOWICH CONSTRUCTION CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed Aug. 13, 1982.

      Richard L. McCandless, Butler, for appellant.
    James K. O’Malley, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   HESTER, Judge:

Reference is made to a separate Opinion of this Court involving The Citizens National Bank of Evans City and the E. H. Bilowich Construction Corporation (hereinafter “Corporation”). See Citizens National Bank of Evans City, Aplnt. v. E. H. Bilowich Construction Corporation, Edward H. Bilowich, an individual and Shirley Bilowich, an individual, No. 899 Pittsburgh, 1980, 302 Pa.Super. 193, 449 A.2d 644 (1982). Although the instant appeal also involves the Bank and the Corporation, the facts and issues presented must be addressed separately. On September 19, 1978, the Bank filed a short form complaint against the Corporation confessing judgment on a mortgage note executed by the Corporation on June 30, 1971 in the original amount of $25,000.00. The complaint alleged a default in the payment on said note for nine months, with $20,800.78 being due thereon including attorney’s commission, late charges and costs of suit. On October 18, 1978 the Corporation filed a Petition to Open the Judgment alleging two meritorious defenses as follows:

(1) “that the principal balance, late charges, interest and attorney’s commissions claimed are inaccurate and excessive.”
(2) “that [the Bank] is indebted to [the Corporation] in a sum far in excess of the amount claimed by [the Bank] in this second confession of judgment. Said claim arises out of the same series of transactions and occurrences between the parties.”

The second alleged defense makes reference to the Corporation’s complaint in trespass against the Bank, alleging “a scheme to deceive, defraud and extort money and favors from [the Corporation] which caused [the Corporation] to be unable to sell real estate, damaged its reputation and credit rating, [rendering it] unable to obtain bonds for its normal work, unable to transact business in its normal fashion, and to have lost a substantial amount of business thereby damaging [the Corporation] in excess of $200,000.00.” This second alleged defense is the subject of the other appeal involving the Bank and the Corporation above-referenced.

The lower court opened the judgment by a memorandum and order which simply made reference to the other action between the Bank and the Corporation.

We hold, as a matter of law, that this unliquidated claim does not constitute a set-off to the mortgage note at issue. The subject matter of the defense to a judgment by confession must be attached to the judgment or the consideration on which it rests. Bell Federal Savings and Loan Association v. Laura Lanes, 291 Pa.Super. 395, 401, 435 A.2d 1285, 1288 (Pa.Super.1981); Kardos v. Morris, 470 Pa. 337, at 341-342, 368 A.2d 657 at 660 (1977).

The facts and issues involved in the other appeal between the Bank and the Corporation occurred in 1975 and thereafter. The judgment note at issue in the instant appeal was executed on June 30,1971. There is no issue concerning the nature or execution of the mortgage note. Nor is there any issue concerning the consideration on which it rests. Therefore, it was error for the lower court to open the judgment confessed on the mortgage note against the Corporation solely on the basis of its reference to the issues involved in the other appeal between the Bank and the Corporation.

Concerning the other defense raised by the Petition, the amount of principal in default and the amount of late charges, interest and attorney’s fees authorized on the face of the mortgage note should be objectively ascertainable.

Reversed and remanded to the jurisdiction of the lower court with instructions to determine the amount of principal in default as well as the amount of late charges, interest and attorney’s fees authorized on the face of the mortgage note and with further instructions to deny the Petition to Open said judgment.


text:
    449 A.2d 649
    COMMONWEALTH of Pennsylvania v. Robert Irvin WALTERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed Aug. 13, 1982.

      Alphonse P. Lepore, Jr., Uniontown, for appellant.

      Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   HESTER, Judge:

Appellant Robert Irvin Walters was convicted by a jury of murder of the first degree and criminal conspiracy. Post-trial motions were denied and appellant was sentenced to life imprisonment for the murder conviction and a consecutive prison term of five (5) to ten (10) years for the conspiracy conviction. The facts and issues involved in the instant appeal are almost identical to those involved in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). Both cases concern the killing of Charles Jacob Lowry. The principal Commonwealth witness in both cases was Thomas Harry Colvin, who had previously pled guilty to third degree murder of the victim. Colvin testified that the appellant contacted him to arrange for the killing of Lowry for $1,500.00. He further testified that he and Contakos killed Lowry on October 6, 1977.

Initially we will address the issues presented which are the same issues which were presented to the Supreme Court in Contakos, supra. Following our full review of the record and the lower court’s opinion, and viewing the evidence in the light most favorable to the Commonwealth, we agree that “. . . the testimony of Colvin alone is sufficient to establish all of the elements of both murder of the first degree and criminal conspiracy.” Contakos, supra, 492 Pa. at 469, 424 A.2d at 1286.

As in Contakos, appellant also challenges the jurisdiction of the lower court and contends that the charges must be dismissed due to the fact that neither of the Informations had been personally signed by the district attorney. Both Informations were rubber stamped with the district attorney’s signature. However, as in Contakos, both Informations were also marked “approved 12/20/78 R.C.W.” Ralph C. Warman was the Assistant District Attorney of Fayette County assigned to the case. Under these circumstances, the approval of the Informations against appellant satisfies the Judicial Code and Pennsylvania Rule of Criminal Procedure 225(b). Contakos, supra, 492 Pa. at 469-470, 424 A.2d at 1286-1287. See also Commonwealth v. Dupree, 290 Pa. Super. 202, 434 A.2d 201 (1981); Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981).

As in Contakos, appellant also challenges the lower court’s refusal to order the pre-trial discovery as request by appellant. Appellant requested the production and disclosure by the Commonwealth of certain investigatory notes which were taken by the prosecuting officer when he interviewed Commonwealth witnesses.

In Contakos, supra, 492 Pa. at 472, 424 A.2d at 1287, the Supreme Court held:

“While a defendant may be seeking only notes of inter- ' views with a Commonwealth witness, those portions of the notes which contain either verbatim, or substantially verbatim, statements which are relevant to the matter being tried should be available ...”

Accordingly, in Contakos, the Supreme Court remanded the case to the lower court to allow the appellant the opportunity to review the notes in question so as to enable him to present an argument concerning which notes could have been used by the appellant. The Supreme Court stated:

“After appellant reviews the notes in question, the hearing court should determine if the Commonwealth’s failure to produce the notes was harmless error. If the Commonwealth fails to establish beyond a reasonable doubt that the error was harmless, the court should grant appellant a new trial. [Citations omitted]. If the court determines the error was harmless, it should reinstate the judgment of sentence. Following the court’s ruling, a new appeal to this Court may be taken.” 492 Pa. at 472-473, 424 A.2d at 1288.

Appellant also asserts that the lower court erred in denying his pre-trial motion for change of venue and his request for a continuance for the purpose of permitting appellant to undergo a psychiatric examination in order to determine his ability to effectively assist his counsel at trial. Contakos was tried shortly before appellant, and appellant claims that he could not receive a fair trial by an impartial jury in Fayette County as a result of the publicity surrounding the Contakos trial. Additionally, on December 6, 1978, in an unrelated case, appellant entered pleas of guilty to 47 separate Informations charging him with burglary. He remained in the Fayette County Jail until his trial in early April of 1979. Appellant argues that, as a result of his incarceration, he was suffering from “emotional stress” which rendered him unable to assist in the preparation of his defense.

Following our full review of the record and the lower court’s opinion, we are convinced that the lower court did not abuse its discretion in denying appellant’s motion for a change of venue and his motion for a continuance. Commonwealth v. Howard, 466 Pa. 445, 353 A.2d 438, 439 (1978); Commonwealth v. Riddick, 232 Pa.Super. 333, 334 A.2d 705, 706 (1975). In the instant case, following a voir dire, a jury of twelve members and two alternates were seated and accepted by both the Commonwealth and the defense. No juror was selected who asserted that he had previously formed an opinion of the accused’s guilt or innocence as a result of any pre-trial publicity. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

As stated by the lower court:

“The trial judge had ample opportunity to observe defendant during the trial and to focus on his capacity to understand and defend. Defendant testified in his own behalf and answered with clarity and comprehension the questions addressed to him. Defendant maintained the dignity of the proceedings by doing nothing to disrupt trial and appeared to be able to make basic decisions with his attorney as to the course of his defense. In view of such conduct, defendant’s request for a psychiatric examination was properly refused. Commonwealth v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419, 421 (1980).

Judgment of sentence vacated and case remanded to the jurisdiction of the lower court for proceedings concerning the investigatory notes, with the same instructions as ordered by the Supreme Court in Contakos, supra, 492 Pa. at 477, 424 A.2d at 1288.


author: CAVANAUGH, Judge:

text:
    449 A.2d 652
    BITO BUCKS IN POTTER, INC. v. NATIONAL FUEL GAS SUPPLY CORP., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1981.
    Filed Aug. 13, 1982.

      Daniel F. Glassmire, Coudersport, for appellant.
    D. Bruce Cahilly, Coudersport, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

This is an appeal from a decree of the Court of Common Pleas of Potter County, sitting in equity, which determined the rights of the respective parties under a right of way agreement over certain private land. The propriety of such determination is now before us.

The facts are as follows. In April of 1973, Richard Way was employed by the appellant, National Fuel Gas Supply Company (National), to gain the necessary right-of-ways and easements over seven miles of private lands in order to lay its proposed pipeline. Mr. Way initiated negotiations with Penn Valley Resorts, Incorporated (Penn Valley), appellee’s predecessor in title, to obtain a right-of-way and easement across Penn Valley’s land. During these negotiations, Penn Valley was represented by its corporate president and largest stockholder, Edward Clancy. On April 18, 1973, Mr. Clancy signed, as witnessed by William J. Mullins, Jr., corporate secretary, the following “Right of Way and Easement”:

FOR AND IN CONSIDERATION of One and no/100 (1.00) Dollars to it in hand paid the receipt of which is hereby acknowledged, Penn Valley Resorts, Inc., . . . does hereby grant to the Sylvania Corporation, ... its successors and assigns, a permanent, exclusive right of way and easement, for the laying, maintaining, operating, replacing, altering, changing the size, relocating and moving, at any time and from time to time, of one or more pipe lines . . . together with the right of unimpaired access to said pipeline and the right of ingress and egress on, over, and through Grantor’s above described land for any and all purposes necessary and incident to the exercise by said Grantee of the rights granted hereunder, . ..
The right of way and easement shall be Sixty-six (66) feet in width. Grantor covenants and agrees that it will not impound water or construct buildings or structures of any type whatsoever on the above-described right of way strip. This shall be a covenant running with the land and shall be binding on Grantor, its heirs and assigns.
In addition to the above consideration, Grantee agrees to repair or to pay any actual damages which may be done...
If the Grantee exercises the right herein granted, it shall pay the Grantor as additional consideration for the grant hereunder the sum of Nine & 50/100 Dollars for each rod length of the first pipeline and a like additional consideration for each rod length of each additional pipeline from time to time laid pursuant hereto, and the Grantee to pay such additional consideration in lieu of any vendor’s lien in respect thereto. In case no pipe is laid thereon and/or such payment per rod is not made within two years from the date thereof, this grant shall thereupon cease and determine. . . .

Within two years, on October 3, 1974, National, through its subsidiary, Sylvania, paid One thousand six hundred and ninety-one (1,691.00) dollars to Penn Valley under the terms of the right of way and easement agreement. In August, 1976, appellee’s agents inspected the Penn Valley tract, prospective to its acquisition. In September, 1976, appellant’s surveyors staked out the Penn Valley tract easement. On December 28, 1976, appellee, Bito Bucks in Potter, Inc., (Bito Bucks) acquired by deed a portion of the Penn Valley tract subject to the right of way and easement dated April 18, 1973.

Following the receipt of a thirty day notice of entry from National, Bito Bucks filed an action in equity for an injunction to permanently enjoin National from entering appellee’s land to construct a pipeline because an ambiguous forfeiture clause terminated its right of way and easement.

In case no pipe is laid thereon and/or such payment per rod is not made within two years from the date hereof, this grant shall thereupon cease and determine.

The lower court agreed with appellee that the forfeiture clause was ambiguous. After a full evidentiary hearing, the lower court held that, although the appellant proved through his witnesses that each of the parties to the right of way and easement agreement held the same mutual understanding that the forfeiture clause requires National to either lay the pipeline or pay the roddage within two years, the subjective intent of the parties required that National lay the pipeline and pay the roddage within two years of the agreement. Thus the lower court granted the permanent injunction and this appeal followed.

Appellant contends that the evidence of the discussions prior to and at the execution of the right of way and easement agreement and the subsequent conduct of the parties, demonstrate that the roddage payment of $1,691.00 perfected a perpetual easement in National and failure to lay the pipeline within two years did not cause a forfeiture of National’s easement rights. We agree and thus reverse the order of the lower court.

It is settled, that the same rules of construction apply to deeds granting easements as to contracts generally. Sigal v. Manufacturer’s Light and Heat Co., 450 Pa. 228, 299 A.2d 646 (1973); Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35 (1947).

The basic rule of construction for interpreting contracts was recently restated in Felmont Oil Corporation v. Cavanaugh, 300 Pa.Super. 520, 525, 446 A.2d 1280, 1283 (1982) (J.1431/1978), quoting Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 386, 170 A.2d 97, 98-99 (1961):

In construing a deed or contract, certain general principles must be kept in mind. First, it is the intention of the parties at the time of entering thereto that governs, and such intention is to be gathered from a reading of the entire contract. In addition, “ ‘contracts must receive a reasonable interpretation according to the intention of the parties at the time of executing them, if that intention can be ascertained from this language. Where the language of a contract is contradictory, obscure and ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary and such as prudent men naturally execute, while the other makes it inequitable, unusual or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. If one construction would make it unreasonable which another would do justice to both parties, the latter will be adopted.’ ” (citations omitted) (emphasis in original).

We agree with the lower court that the forfeiture clause of the right of way and easement agreement is ambiguous. The inartful use of the conjunction “and/or” leads to two equally possible constructions: (1) that the pipeline must be laid and the roddage payment made within two years; or (2) that if either the pipeline is laid or the roddage payment is paid, then a perpetual easement was created. Thus, the lower court properly admitted oral testimony, not to vary the terms of the agreement, but to ascertain the mutual understanding of the parties.

Once parol evidence is admitted, the intent of the parties as well as the credibility of the witnesses, becomes a question of fact to be determined by the fact finder. A lower court’s finding relevant to persons’ intent will not be overturned on appeal unless the record contains convincing evidence which has been capriciously disregarded and which is inconsistent with the lower court’s findings. Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969); Hankin et al. v. Goodman, 432 Pa. 98, 246 A.2d 658 (1968).

Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 288, 294, 310 A.2d 331, 334 (1973) (emphasis added).

However, we must conclude here that the trial judge’s construction of the forfeiture clause is neither reasonable nor supported by the evidence since it clearly disregarded the intention of the parties.

The testimony of Richard Way, employee of National was as follows:

By Mr. Embser (for National):
Q. Now, was there a discussion prior to the execution of this agreement with regard to the clause included in the agreement which reads in case no pipe is laid thereon and/or such payment is not made within two years of the date hereof, this grant shall thereupon cease and determine?
A. Yes.
Q. And what was that discussion?
A. Well, I discussed that along with every paragraph or every clause in the right of way or easement agreement with every landowner and the way it was discussed with everyone was that we would have two years in which to either pay the roddage figure which was set forth in the paragraph or lay the pipeline. If neither was done, the right of way would become null and void.

N.T., February 25, 1980, p. 5-6. (emphasis added).

Further, the cross examination of Mr. Way by Mr. Cahilly (for Bito Bucks) was as follows:

Q. Mr. Way, did I understand now that you specifically discussed with Mr. Clancy the meaning of the phrase and/or and what you understood its legal effect had in the document you were asking him to sign?
A. Yes.
Q. And do I understand you did explain to him that your company would have two years to do one of three things, pay him the roddage, lay the pipeline, or do both?
A. The way I actually explained it was that we would have two years in which to pay the roddage or lay the pipeline is the best I recall.
Q. But either/or?
A. Yes.
Q. And did you explain to him that upon the event of either of those occurring that the easement agreement that you are asking him to sign would be perpetual in terms of existence?
A. For so long as it was used for the purpose granted.

N.T., February 25, 1980, p. 11-12.

Mr. Way succinctly summarized his understanding of the forfeiture clause that:

“[As] plain and simple as best I can put it, it was stated that we would have two years under this right of way as it stood and within that time period we would■ either have to pay that roddage if we didn’t in fact lay the pipeline.”

N.T., February 25, 1980, p. 17. (emphasis added).

The testimony of Frank McGuire, Vice President, shareholder and a director of Penn Valley was as follows:

By Mr. Embser:
Q. [I am] going to show you a copy or the agreement and ask you if at that time the business where the right of way agreement calls for payment and/or placement of the pipe within two years was discussed?
A. Yes, it was.
Q. And how was this explained to you?
A. Well, we were told that the gas company would either pay us within two years for the right of way or they would put the pipeline in and pay us, was our understanding. But we would be paid for the right of way within two years either way.
Q. Now, and was that your understanding of that clause?
A. Yes.
Q. And did you discuss this with other officers of the corporation?
A. With Ed [Clancy, corporate president],
Q. And was the corporation in agreement with this interpretation of the clause?
A. Yes, we were.

N.T., February 25, 1980, p. 32.

Mr. McGuire also testified as to his understanding of the conversations at the time of the execution of the agreement:

[that] as close as I can get to it and remember the conversation is that Mr. Way was trying to explain to us that we were either going to get our money for the right of way within two years or we get it sooner if they start laying pipe sooner than that.

N.T., February 25, 1980, p. 39.

Finally Mr. McGuire testified concerning his understanding of the effect of the roddage payment of $1,691.00 in October of 1974:

A. [that] I understood that they had a right of way then.
Q. Was this to be a permanent right of way?
A. Yes. .

N.T., February 25, 1981, p. 33.

Since the objective intent of the parties as expressed in the right of way and easement agreement was ambiguous, the lower court should have looked to the subjective intent of the parties to the agreement through parol evidence. Our review of the record clearly demonstrates that the lower court disregarded the construction of the forfeiture clause the parties had agreed to. The subsequent conduct of the parties following the signing of the right of way and easement agreement remains uncontradicted as evidence of the parties’ true intention. Penn Valley’s acceptance of the check in October, 1975 and its failure to object when National, surveyed and staked the easement with notices of National’s intent to lay the pipeline, indicate that the parties intended that the payment of the roddage created a permanent easement for National.

Since the forfeiture clause is ambiguous and the parties’ mutually understood that the payment of the roddage payment would create a perpetual easement, the order of the lower court is reversed.

Reversed.


text:
    449 A.2d 656
    COMMONWEALTH of Pennsylvania v. Michael J. RUSINKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 16, 1981.
    Filed Aug. 13, 1982.

      Joseph F. Iracki, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, WATKINS and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

Appellant Michael J. Rusinko has taken this appeal from the trial court’s denial, without a hearing, of his Post Conviction Hearing Act (PCHA) petition. We find that the trial court erred in summarily dismissing appellant’s petition and we therefore reverse and remand for an evidentiary hearing.

Appellant pled guilty on September 17, 1979, to one count of indecent assault, one count of escape, and four counts of burglary. Pursuant to a plea negotiation, the Commonwealth nol prossed two other charges. No petition to withdraw the guilty plea was filed. On November 1, 1979, appellant was sentenced to consecutive terms of two and one-half to five years imprisonment on two of the burglary charges. Sentence was suspended on the remaining charges. No direct appeal was taken from the judgments of sentence.

The PCHA petition which is the subject of this appeal was filed on September 10, 1980. Appellant has alleged in this petition that his trial counsel was ineffective for failing to file an appeal in spite of appellant’s request that he do so and that his guilty plea was unlawfully induced by his counsel’s promise that any sentences imposed would run concurrently. After hearing oral argument of counsel on October 22, 1980, the trial court dismissed appellant’s petition as frivolous and denied a hearing under the PCHA.

The Commonwealth claims that appellant has waived his right to challenge the validity of his guilty plea. It is true that the validity of a guilty plea should normally be challenged by way of a petition to withdraw the plea or by direct appeal. It is clear, however, that where an appellant also claims ineffective assistance of counsel resulting in denial of appellate rights, he has not waived his right to challenge his plea. Since appellant has alleged that his trial counsel failed to file an appeal after appellant requested him to do so, his right to challenge the guilty plea has not been waived. Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982); Commonwealth v. Peele, 291 Pa.Super. 84, 435 A.2d 231 (1981); Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Farnwalt, 286 Pa.Super. 559, 429 A.2d 664 (1981); Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979); Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978).

As stated above, appellant claims that his guilty plea was unlawfully induced by his counsel’s promise that any sentences imposed would run concurrently. The sentences actually imposed were to run consecutively. Even though appellant stated during the guilty plea colloquy that his plea was not induced by any promises regarding sentencing, the record does not clearly refute his claim that the alleged promise was made. We have held in many cases that under these circumstances, an evidentiary hearing should be held by the PCHA court to determine whether the guilty plea was, in fact, unlawfully induced. Commonwealth v. Henderson, supra; Commonwealth v. Peele, supra; Commonwealth v. Paige, supra; Commonwealth v. Farnwalt, supra; Commonwealth v. McCall, supra; Commonwealth v. Strader, supra.

For the reasons stated above, we reverse the order dismissing appellant’s PCHA petition and remand with the following instructions. The court should conduct an evidentiary hearing to determine whether appellant did, in fact, request his trial counsel to file an appeal challenging the validity of his guilty plea. If the court finds that he did not make such a request, then it should dismiss the PCHA petition for appellant will have waived his right to challenge his guilty plea. Commonwealth v. Paige, supra. If, however, the court finds that appellant did make such a request, then it should permit him to file a motion to withdraw the plea nunc pro tunc, Commonwealth v. Clark, 296 Pa.Super. 315, 442 A.2d 786 (1982), and an evidentiary hearing should be held on that motion to determine whether appellant’s guilty plea was, in fact, unlawfully induced.

      . New counsel was appointed to represent appellant on this PCHA petition.

      . We also refuse to find waiver based on an apparent earlier attempt to obtain relief via a PCHA petition. The record does not contain any earlier PCHA petition. Nor does the list of docket entries indicate the filing of any such petition. The record does, however, contain a letter dated December 4, 1979, addressed to the appellant and signed by the trial court judge, in which the judge stated that he was returning the PCHA petition “sent to me in the matter of your recent sentences,” because he found it to be frivolous. Appellant mailed from prison on December 20, 1979, a “notice of appeal” to The Superior Court from this “dismissal.” The Superior Court docket shows that the “notice of appeal” was filed on January 9, 1980. This court dismissed the appeal as untimely filed on January 18, 1980. The December 4, 1979 letter from which appellant had attempted to take an appeal was not even filed with the lower court prothonotary until January 23, 1980, several days after this court had dismissed the appeal. The entries of record certainly indicate a lack of adherence to procedural rules not only on the part of appellant, who was acting pro se, but by the lower court as well. It is impossible for us to even determine what appellant alleged in that “petition”. It is clear from the record that no hearing was ever held on the merits of his allegations. It would certainly be unjust for us to find waiver on the basis of this ill-fated attempt to challenge his guilty plea.


author: BROSKY, Judge: MONTGOMERY, Judge,

text:
    449 A.2d 658
    Franklin W. JUDGE, Appellant, v. CELINA MUTUAL INSURANCE COMPANY. Franklin W. JUDGE v. CELINA MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Dec. 28, 1982.

      Edwin Krawitz, East Stroudsburg, for Judge, appellant (at No. 502) and appellee (at No. 503).
    Bernard M. Billick, Stroudsburg, for Celina, appellant (at No. 503) and appellee (at No. 502).
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal arises out of a suit filed by Franklin W. Judge against his insurance company, Celina Mutual Insurance Company (Insurance Company), concerning the Insurance Company’s liability to Judge under an insurance policy purchased by Judge to protect himself from loss due to fire on property he owned in Stroudsburg, Pennsylvania. The lower court entered a verdict in favor of Judge in the amount of $23,500. Judge filed exceptions claiming that the damages awarded were too small. The trial court, sitting en banc, dismissed the exceptions. This appeal followed in which Judge complains that the damages awarded were inadequate. The Insurance Company has filed also an appeal in which it asserts that Judge should have been precluded from recovery because he failed to file a proof of loss form according to the policy’s requirements, that he failed to adequately protect the damaged property, that Judge’s expert witness was not qualified, and that the Insurance Company should have been permitted to offset damages through a defense of salvage value. We reverse and remand in the Judge’s appeal and affirm in the Insurance Company’s appeal.

Judge was a tenant in a building which was completely destroyed by fire on November 27, 1977. Judge owned a restaurant in the building where he sold pizza. The restaurant was operated by Ronald Joachim, Judge’s brother-in-law, from whom Judge purchased the business and equipment in 1977 for $45,000. Judge was a full-time bus driver in New York City, New York at the time of the fire. Judge became aware of the fire shortly after it occurred. He notified the Insurance Company immediately thereafter. The Insurance Company then engaged an adjuster, Claude Martin Company, to adjust the loss. Judge and Joachim contacted William Dagger, an employee of Claude Martin Company. Dagger eventually gave Judge an inventory form and requested him to prepare an inventory of the damages and to return the form to him. Dagger told Judge that he would not hold him to the 60-day limitation in the policy for filing a proof of loss form. Judge mailed the form to Dagger on February 7, 1978.

Dagger visited the burned-out building three days after the fire occurred and on eleven subsequent occasions. The trial court reviewed the evidence produced by the parties and determined that the insured property was a total loss. The Insurance Company never submitted any evidence about the salvage value, if any, of the property. Judge presented evidence as to the value of his lost property in the form of testimony of Ronald Joachim. Joachim was shown to be familiar with the pizza-selling business. He was shown to be schooled in the value of pizza making equipment. He was very familiar with this business, having formerly owned it and being' the current operator.

The record indicates that the property was boarded up from the date of the fire until March or April of 1978. There is no evidence of any pilferage or vandalism occurring on the property. As we stated, Dagger was able to inspect the damage on twelve occasions. He never testified that the property was not secured properly.

The record reveals that the original cost of the equipment used in the business was $23,692.04. Judge testified that of the $45,000 purchase price that $25,000 was allocated to the purchase of the equipment. Joachim testified that the value of the equipment had appreciated, raising its current value to $33,073. Judge also stated that the value of supplies lost in the fire was $3,500. Joachim testified further that when he sold the business to Judge he had expended $8,000 on improvements on the property. Judge, who was the tenant at the time of the fire, had not made any further improvements, but presumably the cost of these improvements was included in the $45,000 purchase price he had paid Joachim. The lower court held that as the policy only covered improvements made by the tenant, that Judge was not covered for the $8,000 in improvements. The court decided that the “actual cash value” of the equipment was $20,000. It awarded damages of $23,500. The value of the lost equipment and lost supplies.

The Insurance Company asserts that Judge should be barred from recovery because of his failure to file a proof of loss form within 60 days of the fire. In Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), our Supreme Court held that a delay in notification of loss will be excused if there has not been a lack of due diligence. The court also required that the Insurance Company prove that it was prejudiced by the delay if it is to be relieved of liability. While we believe this principle is applicable to the failure of Judge to file a proof of loss statement within 60 days, the Insurance Company, clearly, has not been prejudiced. It had ample opportunity to inspect the burned building. It was told that the loss was total and Judge provided it with a statement of what equipment was in the building, mailed within 72 days.

Next, the Insurance Company claims that the property was not adequately secured after the fire. This contention is not supported by the record. The building was locked and boarded up for six to seven months after the fire. The insured is only required to secure the insured premises for a reasonable length of time so that the insurer can check them. The insured is not obliged to secure the property for an indefinite period of time. Obviously, in the instant case, the insured property was secured for a reasonable length of time. The insurer’s adjuster was able to inspect the premises twelve times. The record gives no indication that the property was not secure for a reasonable period of time. Cf.: Isaac et al. v. Donegal and Conoy Mutual Fire Insurance Company, 308 Pa. 439, 162 A. 300 (1932).

The Insurance Company claims that it should have been able to avoid liability at least in part because of the salvage value of the property. The defense of salvage value arises from the insurance contract and, as such, is an affirmative defense which must be properly pleaded in new matter. Matthews v. Malloy, 217 Pa. Super. 338, 272 A.2d 226 (1970). An affirmative defense not properly pleaded is waived. Pa.R.C.P. 1030. The Insurance Company has waived this contention.

Judge asserts that the damages assessed in this case aré incorrect. He claims he should be permitted significantly higher damages. The trial court stated in its opinion that:

The plaintiff’s testimony is that the supplies destroyed by the fire were valued at $3,500. This testimony is not disputed and we have no basis on which to reject this figure. It does not appear to be unreasonable. We know that the bulk of the insured property when new, cost $23,692.04 and that it was five years old. We further know that some eleven months before the fire the Plaintiff testified that he paid $25,000.00 for it, which price included some additional equipment which Joachim purchased after he bought the pizza restaurant from Pappas. We further are aware that at the time of the fire second hand equipment had, due to inflation, a strong market at high prices. We further are aware that the Appellate Courts have often stated that the actual cash value of the insured property is the measure of damage and not its market value. It is our considered judgment and so we find that the actual cash value of the destroyed property, exclusive of supplies, was $20,000.

(Trial Court Opinion pages 14-15.)

The trial court’s understanding of the term “actual cash value” is not correct. In Commercial Union Assurance Co. v. Pucci, 523 F.Supp. 1310, 1319 (W.D.Pa.1981), the court stated:

The policy that Commercial Union issued to the Puccis read in pertinent part that “this Company’s liability for loss ... shall not exceed . . . the actual cash value of that part of the building structure damaged or destroyed.” Def.Exh.C. The Pennsylvania Supreme Court has stated that “[ajctual cash value in a policy of insurance means what it would cost to replace a building or a chattel as of the date of the fire.” Fedas v. Insurance Company of Pennsylvania, 300 Pa. 555, 562, 151 A. 285, 288 (1930). We have found no Pennsylvania case that conflicts with the law as stated in Fedas or that calculates the cost of repair as of the date of the judicial award rather than as of the date of the loss.

Our Supreme Court in Fedas v. Insurance Company of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930), discussed the difference between market value and actual cash value. It said:

Generally speaking, “actual cash value” does not mean market value as the term is understood. “Market value,” as here urged embodies what a purchaser willing to buy feels justified in paying for property which one is willing but not required to sell. “Market value” includes factors of time, place, circumstance, use, and benefit; depreciation is included, but one figure is the result of these considerations, the price to be paid, ordinarily actual cash value has no relation to any of these factors; it is value under all times, such as the cost of manufacturing or building or book value. The policy intended something different from market value; the latter includes “depreciation,” while the “actual cash value” of the policy is to be diminished by “depreciation.” Actual cash value in a policy of insurance means what it would cost to replace a building or chattel as of the date of the fire.

The insurance policy in the instant case provides that the Insurance Company will be liable for the “actual cash value” of property damaged by fire. We are obliged to reverse and remand the order of the trial court as to the amount of damages. The trial court failed to determine the liability of the Insurance Company in accordance with our Supreme Court’s decision in Fedas.

Order reversed in part and remanded for proceedings consistent with this opinion, and affirmed in part.

MONTGOMERY, J., files concurring and dissenting opinion.

MONTGOMERY, Judge,

concurring and dissenting:

I must respectfully dissent as to the order for a new trial. I find no basis in the record for the holding by my Brethren that the trial court committed error in its findings and verdict with respect to damages. It is asserted in the Majority Opinion that the lower court misunderstood the term “actual cash value”. The record clearly refutes such a conclusion.

The lower court cited and correctly explained Fedas v. Insurance Company of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930), which is the lead case in our Commonwealth defining what is meant by “actual cash value”. The lower court recognized the distinction between “market value” and “actual cash value” enunciated by our Supreme Court in that case.

Of course the lower court, sitting without a jury, is given quite broad discretion in fixing damages in a case such as this. I can find no abuse of that discretion in the award of damages in the amount of $23,500.00. The amount of that verdict seems fair and reasonable in light of the evidence presented and I believe that no ground exists for disturbing it on this appeal.

I note my agreement with my Brethren in the Majority that there is no merit in any of the remaining contentions offered by either of the parties in their separate appeals in this case. However, I must dissent as to the order for a new trial. I would affirm the order of the lower court.

      . It is not clear in the record whether and when the Insurance Company received the inventory form from Judge. The trial court held that it was mailed. We see no reason to disturb this finding. We must, therefore, presume it was received. Berkowitz v. Mayflower Securities, Inc., 455 Pa. 531, 317 A.2d 584 (1974). The Insurance Company’s mere denial of receipt is insufficient to refute the presumption. The record is clear that Judge’s attorney, Edwin Krawitz, mailed a copy of the inventory to Dagger on February 22, 1978, which was received.

      . We are satisfied that Joachim was qualified to testify as to the value of the equipment. While Joachim was not the current owner of the equipment, he was the former owner and current operator of the restaurant. We are satisfied that Joachim was competent to testify as to the value of the equipment. See: Commonwealth v. Warlow, 237 Pa.Super. 120, 346 A.2d 826 (1975).

      . Judge complains that the Insurance Company was liable for $18,-000 in improvements made by Joachim. The insurance policy specifically provides that the insurer is only liable for improvement and betterments made by the “tenant.” Judge did not make the improvements. Thus, he is excluded from coverage. Judge does not argue in his appeal that the exclusion was not explained to him. Kelmo Enterprises v. Commercial Union Ins., 285 Pa.Super. 13, 426 A.2d 680 (1981). Accordingly, we do not consider this issue. On remand, the trial court shall not include these alleged damages in its award.

      . This distinction was recently reiterated by the Federal District Court in Commercial Union Assurance Co. v. Pucci, 523 F.Supp. 1310 (W.D.Pa.1981).

      . The trial court’s findings, which were approved by the court en banc, carry the same weight as a jury verdict. Darlington Brick and Clay Products Co. v. Aino, 225 Pa.Super. 186, 187, 310 A.2d 401, 402 (1973).


author: BROSKY, Judge:

text:
    449 A.2d 662
    COMMONWEALTH of Pennsylvania v. Albert GLOVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1982.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Granted Nov. 4, 1982.

      George B. Angelí, Port Allegheny for appellant.
    Marion E. Mac Intyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

Appellant was convicted of aggravated assault and battery on October 7, 1976. Post-trial motions were filed in October, 1976, but were withdrawn in April, 1977. On April 20, 1977, appellant was sentenced to a term of imprisonment of 18 to 36 months. On April 27, present counsel entered his appearance on appellant’s behalf. A motion to vacate sentence was filed and former counsel withdrew his appearance in May, 1977. On May 25, 1977, the motion to vacate sentence was granted and post-trial motions were reinstated. Appellant was released on bail.

The parties agree that argument was held on the post-trial motions in July, 1977. However, the court apparently did not take any action on the motions following argument. In February, 1978 appellant’s counsel wrote to the judge who had heard the argument on the motions and inquired as to their status. Appellant claims that reargument was held on the motions in the spring or summer of 1978; appellee seems uncertain as to whether such an argument was held.

In any case, no action was taken by the court on the motions until July of 1980 at which time another judge was assigned to dispose of the matter. Appellant states that his counsel made inquiry as to the motions in the period 1978-1980, but the record discloses no written evidence of such an inquiry. No motion to dismiss was filed until August 27, 1980. That motion was denied in February, 1981 and oral argument was again held on the post-verdict motions on March 25,1981. The motions were denied on April 28, 1981. Appellant was sentenced on June. 24, 1981 and this appeal followed.

The primary issue before us is whether the charges against appellant should be dismissed because of the lower court’s delay in disposing of his post-trial motions and in sentencing him. Appellant claims that dismissal is justified on the grounds that his constitutional rights to due process and speedy trial were violated and because the lower court failed to comply with Pa.Rule of Criminal Procedure 1122. Appellant also argues that the verdict as to aggravated assault was not supported by sufficient evidence. We affirm the judgment.

In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), our Supreme Court noted that the question of whether the Sixth Amendment speedy trial right extends to sentencing has not been settled. The court did, however, assume arguendo that such a right exists. See also: Pollard v. U.S., 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). We will follow the approach taken in Pounds and turn now to the factors to be considered in determining whether the speedy trial right has been violated.

The principal factors to be considered are length of delay, reason for the delay, assertion of the right, and resulting prejudice to interests protected by the right to speedy trial. Pounds, supra, 490 Pa. at 627, 417 A.2d at 599.

In the present case, post-trial motions were reinstated in May, 1977. Sentence was not imposed until June, 1981. The delay was certainly sufficient to trigger further inquiry.

As to the second factor, reason for the delay, the record is devoid of explanation. The lower court judge who denied appellant’s motion for dismissal was unable to find the reason for the delay, and, the Commonwealth offers no explanation. Based on this lack of information, we are unable to evaluate the reason for delay. However, we do note that unlike the situation in Pounds, we have no reason to believe that the delay was caused by appellant. This fact, or more precisely, absence of evidence of fault on appellant’s part, also distinguishes this case from our decision in Commonwealth v. Hill, 282 Pa.Super. 462, 422 A.2d 1385 (1980), and Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981).

The next factor to be considered is whether appellant asserted his speedy trial right. Here, as in Pounds, no formal assertion of the right was made during most of the delay. Indeed, more than three years passed before a motion to dismiss (the first motion filed in regard to this question) was filed. The Pounds court found that letters sent to the court did not constitute a formal petition. This result is especially called for in the present case in which the only letter of record merely inquired as to what decision had been reached on the motions—no assertion of constitutional rights was made.

Finally, we turn to a consideration of whether appellant was prejudiced by the delay. In Pounds at 490 Pa. 629, n. 10, the court outlined the interests which the speedy trial right protects. They are: prevention of oppressive pretrial incarceration, minimization of an accused’s anxiety and concern and limitation of the possibility that the defense will be impaired.

Appellant was free on bail following the reinstatement of the post-verdict motions.

He does claim, however, to have suffered anxiety and concern because of the delay. Specifically, Mr. Glover says that he was unable to plan his future, that marriage plans could not be made and that he suffered anxiety which accompanies public accusation. As to the last mentioned concern, we note that early sentencing would not have itself altered the public’s view of appellant. We do recognize that he may have been uncertain as to his future, but see no demonstration of the degree of anxiety which is of constitutional proportions. Certainly, balancing his uncertainty was Mr. Glover’s opportunity to remain free on bail.

Appellant also argues that should this case be remanded for new trial, his defense would likely be impaired for the lapse of time. However, because appellant’s argument in support of new trial does not warrant remand, we cannot find him prejudiced in this regard.

We certainly do not condone the delay that occurred in this case. The court has a responsibility to dispose of post-trial motions and sentence promptly. However, application of the aforestated principles leads us to conclude that appellant’s constitutional rights were not violated. We base our decision on the lack of prejudice shown by appellant and on his failure to assert his rights for three years. Under these circumstances, we will not dismiss the charges.

We reach a similar decision as to appellant’s claim that the lower court’s failure to comply with Pa.Rule of Crim.Procedure 1122 calls for dismissal of the charges.

Certainly, the court did not comply with Rule 1122 which provides in pertinent part:

All motions for a new trial and motions in arrest of judgment shall be decided within thirty days after argument except under unusual circumstances.

However, since we have found that appellant has not demonstrated prejudice from the delay in sentencing, we also conclude that he was not prejudiced by the delay in disposition of his post-trial motions.

Again, we do not condone violation of court rules, but we do not believe that dismissal is mandated in this case.

We turn finally to appellant’s claim that his conviction of aggravated assault is not supported by the evidence. He bases his argument on testimony given by the victim of the crime, who said that he did not consider the injuries he received to have been serious.

In answering a claim that a verdict is not supported by sufficient evidence, we must view the evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).

Aggravated assault is defined in relevant part as:
(a) Offense defined—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

Act of October 1, 1980, P.L. 693, as amended; 18 Pa.C.S. § 2702.

As the statute makes clear, a person can be found guilty of aggravated assault if he attempts to cause serious bodily injury.

The victim in this case testified that three men repeatedly hit him in the head with their fists and kicked him. We agree with the lower court’s conclusion that under the circumstances the jury could have inferred that the defendant attempted to cause serious bodily injury to the victim.

The victim’s testimony as to the extent of his injury, the weight of which is for the jury to determine, may have suggested that the injury actually incurred was not serious bodily injury. However, even if the jury reached that conclusion, it could still have found that the defendant attempted to cause such injury.

The case is clearly distinguishable from Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), in which the court found evidence that defendant struck one blow to the victim’s head was, without more, insufficient to support a finding of intent to inflict serious bodily injury.

In this case, on the other hand, the jury could have found the requisite intent in the fact that the appellant struck the victim repeatedly and did not act alone. Three men attacked him. Their disproportionate strength and repeated blows distinguished this case from Alexander, supra.

Judgment of sentence affirmed.

WIEAND, J., concurs in result.

      . In Pounds, supra, 490 Pa. at 631 n. 11, 417 A.2d at 601 n. 11, the court said that the same considerations applicable in the context of a speedy trial claim are applicable to a claimed due process violation based on delays in proceedings.

      . Appellant’s sole argument in support of new trial is that the verdict is supported by insufficient evidence. We will discuss this issue briefly later in our opinion.


author: McEWEN, Judge:

text:
    449 A.2d 666
    DUNCAN-LAGNESE AND ASSOCIATES, INCORPORATED, a Pennsylvania corporation, Appellant, v. The STONEY CREEK VALLEY SEWER AUTHORITY, Borough of Indian Lake, the Borough of Shanksville and the Township of Stoney Creek.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Dec. 6, 1982.

      William S. Smith, Pittsburgh, for appellant.
    James Rill Cascio, Somerset, for Borough of Indian Lake, appellee.
    Kim Richard Gibson, Somerset, for Borough of Shanks-ville, appellee.
    William L. Kimmel, Somerset, for Tp. of Stoney Creek, appellee.

      Before HESTER, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

We here consider an appeal from an Order of the Common Pleas Court of Somerset County which sustained the preliminary objections of the Borough of Indian Lake, the Borough of Shanksville and the Township of Stoney Creek and dismissed the complaint as to those three municipal defendants. We affirm.

The three municipalities formed the Stoney Creek Valley Sewer Authority (hereinafter Authority) so as to enable the municipalities to construct a sewage system and thereby comply with requirements of the Department of Environmental Resources acting pursuant to the Clean Streams Act. The plaintiff corporation entered into a contract with the Authority for the performance of certain engineering services in connection with the desired sewer system. The Authority negotiated a loan of $300,000 from the First National Bank of Somerset County, so as to enable the Authority to provide for payment to-plaintiff for its services. The Authority was able to secure the loan only after it had entered into an agreement with tlie three municipalities that the three municipalities would, in the event that the Authority was, on October 1, 1978, in default on the loan from the bank, purchase the final plans and specifications prepared for the Authority by the plaintiff.

The plaintiff acknowledges that there was no contract between the plaintiff and any of the three municipalities alleged in the complaint and here argues that the plaintiff was an intended third party beneficiary of the agreement between the Authority and the three municipalities that the three municipalities would purchase the plans and specifications from the Authority in the event of a default by the Authority upon the loan to the Authority from the bank..

The Pennsylvania Supreme Court in Spires v. Hanover Fire Insurance Company, 364 Pa. 52, 56-67, 70 A.2d 828, 830-31 (1950) expressed the still prevailing principle that the intention of the parties to a contract to create a third party beneficiary must be clearly expressed in the contract:

To be a third party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third person that the latter should be a beneficiary, but both parties to the contract must so intend and must indicate that intention in the contract; in other words, a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; the obligations of the third party must be created and must affirmatively appear in the contract itself, (emphasis in original).

While certain authorities propose to eliminate the requirement that the intent to benefit a third party be expressed in the contract itself and propose to permit the intent of the parties to be determined from the circumstances surrounding the contract as well as from the contract itself, the Supreme Court has not as yet rejected the principle of Spires, supra. The Restatement (Second) of Contracts § 302 (1979), has adopted this less rigid requirement:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and
s(: * sfc * *
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

While the Pennsylvania Supreme Court appears disposed to adopt the view of the current Restatement, see Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976); Silverman v. Food Fair Stores, Inc., 407 Pa. 507, 180 A.2d 894 (1962), that disposition has been displayed in cases where neither the construction of the contract nor the circumstances under which it was made would permit the court to conclude that the parties to the contract intended to benefit a third party and it was, therefore, not necessary for the court to express abandonment of Spires.

As for this court, our eminent President Judge William F. Cercone has expressed in a fervent dissent that the less severe standard should be adopted—

In light of the overwhelming weight of authority eschewing any requirement that the writing affirmatively establish the intent to benefit a third party, the lower court’s entry of judgment on the pleadings of the defendant was error and should be reversed. Hillbrook Apartments, Inc. v. Nyce Crete Company, 237 Pa.Super. 565, 582, 352 A.2d . 148, 156 (1975).

—but the majority of this court was not inclined to discard the Spires rule and noted:

As sympathetic as we may be to the defense’s position, we are not free, as an intermediate appellate court, to overrule the decisional law enunciated by the Supreme Court of Pennsylvania. Id., 237 Pa.Superior Ct. at 573, 352 A.2d at 152.

Certain of the decisions of this court since Hillbrook Apartments indicate that this court may share the disposition of the Supreme Court to discard the requirement in Spires, but have declined to do so either by reason of the restriction expressed by the majority in Hillbrook Apartments or by reason of the failure of litigants, who assert third party beneficiary status, to establish evidence sufficient to permit reasonable reliance that the promisee and promisor intended to create a third party beneficiary.

Somerset County Common Pleas Court Judge Norman A. Shaulis reflects in his able Opinion a thorough analysis of the provisions of this contract as well as a studied application of the law to the contract and we agree with his determination.

We perceive the most relevant factors for our consideration and disposition to be:

The contract in quite clear and certain terms expresses in Article X the purpose of the contract when it states:
It is understood and agreed by the parties hereto that the Authority may assign all its right, title and interest in and to this Agreement to the Lending Bank as security for the loan which the Authority will make with said Lending Bank for the purpose of meeting its obligations under the Engineering Agreement and other related obligations, and the Municipalities hereby consent to said assignment and agree to pay or cause to be paid all moneys payable hereunder on their respective behalf on or before October 1, 1978 in accordance with said assignment.
The intention of the municipalities to provide assurance to the bank is clearly expressed.
The expectation of the municipalities that the Authority would provide for payment to the engineer from the loan is clearly expressed but the municipalities do not express an intention to confer a third party right upon the engineer; in fact, the purpose of the loan was to enable the Authority to meet “its obligations under the Engineering Agreement and other related obligations ...” Paragraphs 30 and 38 of the complaint of plaintiff allege the “stated intent” of the parties was to make the plaintiff a third party beneficiary but the plaintiff alleges only that this stated intent is expressed in the contract. The contract on its face and by its very terms, however, contradicts the conclusion that plaintiff expresses in paragraphs 30 and 38 of the complaint, as the hearing judge has already so perceptively noted.
Plaintiff does not allege that the intention of the parties to make the plaintiff a third party beneficiary can be shown by the circumstances surrounding the contract.

We, therefore, affirm for the reason that the contract upon which plaintiff sues contradicts upon its face plaintiff’s theory of claim and for recovery, making it unnecessary for the courts to demonstrate that the law as stated by the Supreme Court in Spires produces a different result from the law reflected as the apparent disposition of the Supreme Court in Rapistan.

Order affirmed.

      . The remaining defendant, Stoney Creek Valley Sewer Authority, filed preliminary objections which the court denied. The Authority could not appeal from the interlocutory order of denial and, therefore, that portion of the Order of the Court of Common Pleas is not subject to review by this court.


author: CIRILLO, Judge:

text:
    449 A.2d 669
    COMMONWEALTH of Pennsylvania v. Paul SHOEMAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1982.
    Filed Aug. 13, 1982.
    Petition for Allowance of Appeal Granted Nov. 4, 1982.

      Philip T. Medico, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, for appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant, Paul Shoemaker, entered pleas of guilty on September 21, 1981 to the charges of robbery and attempted escape. He was sentenced to incarceration at the State Correctional Institution at Camp Hill for an indefinite minimum time period up to a maximum of six years. Appellant filed a petition for modification of sentence which was denied on October 7, 1981. This appeal followed.

On April 16, 1981, appellant and an accomplice entered a grocery store and demanded money from the store clerk. Appellant threatened to kill the clerk. Appellant and the accomplice then removed cash and food stamps from the cash register. On July 4, 1981, appellant attempted to escape from the Luzerne County Juvenile Detention Center. On July 20, 1981, the charges against the appellant were transferred to the criminal division of the Court of Common Pleas of Luzerne County.

Appellant alleges that: (1) the lower court erred by failing to impose a minimum sentence upon appellant, and (2) the sentence is excessive because it was imposed without regard to his character or the circumstances of the offenses.

We address appellant’s first contention only because we find merit in it. The sentencing code provides: “The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b). In regard to this first contention, our Court, in Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 555, 557, 419 A.2d 596 (1980), held that:

Preliminarily, however, we note that the sentence provides for a maximum term only, and not a minimum. Since the sentence appears to be illegal we have examined the issue of legality of the imposed sentence sua sponte, as we are permitted to do. Commonwealth v. Betoni, 254 Pa.Super. 26, 27-28, 385 A.2d 506, 507 (1978). We first ascertain that there is a line of cases which have held sentences similar to the ones on appeal not to be in compliance with the sentencing code and have thus remanded for resentencing. . . It seems to us that the better interpretation of the sentencing statutes is to require the fixing of a minimum sentence (even one day) as well as a maximum (emphasis supplied). . . This interpretation is more in keeping with the policy of having the full sentencing responsibility lodge with the trial court and it eliminates any “construction” of sentences by appellate courts.

In Aeschbacher, appellant pled guilty to aggravated assault at eighteen years of age, and while he was not sentenced to a minimum term of imprisonment, he was sentenced to a maximum term of six years imprisonment at the State Correction Institution at Camp Hill.

Appellant in this case was transferred to adult status and treated as such in the criminal division of the Court of Common Pleas of Luzerne County. Appellant was age seventeen at the time he pled guilty and when he was sentenced. He could have been treated as a juvenile pursuant to 42 Pa.C.S.A. § 6302 (the Juvenile Act), but he was not. When a juvenile is transferred to the criminal division of the lower court, the provisions of the Juvenile Act are no longer applicable to him. 42 Pa.C.S.A. § 6355. Additionally, the State Correctional Institution at Camp Hill is a proper facility only for the incarceration of adults. In the Interest of Scott W., 250 Pa.Super. 226, 229, 378 A.2d 909, 910 (1977). “. . . After a juvenile has been certified for trial as an adult, he must be treated as an adult and accorded the rights thereof.” (citation omitted) Commonwealth v. Bane, 272 Pa.Super. 160, 162, 414 A.2d 1056 (1979).

In conclusion, as in Aeschbacher, we believe that the lower court should have sentenced the appellant to both a minimum and maximum term of incarceration in accordance with the sentencing code; and in light of the facts that he was treated as an adult and sentenced to an adult facility.

Judgment of sentence vacated and the case is remanded for resentencing.

      . Act of 1976, June 24, P.L. 425, No. 102, § 1; 18 Pa.C.S.A. § 3701.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 901; Id., 18 Pa.C.S.A. § 5121.

      . Act of 1953, July 29, P.L. 1447, § 1; 61 Pa.C.S.A. § 485.

      . We note that this issue was not raised in appellant’s petition for modification of sentence.

      . Act of 1980, Oct. 5, P.L. 693, No. 142, 401(a).

      . Act of 1978, April 28, P.L. 202, No. 53, 22.

      , Act of 1978, April 28, P.L. 202, No. 53, 30.