text:
    513 A.2d 434
    McKEESPORT NATIONAL BANK, Appellant, v. Lowell M. ROSENTHAL and Georgia Rosenthal and Wilfred Weiss and Lila L. Weiss, Appellees.
    Superior Court of Pennsylvania.
    Argued March 28, 1986.
    Filed July 23, 1986.

      Walter F. Baczkowski, McKeesport, for appellant.
    Janice L. Morison, Pittsburgh, for Rosenthal, appellees.
    Gayle L. Godfrey, Pittsburgh, for Wiess, appellees.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Where the obligation of a surety is absolute and unconditional, is it subject to extinguishment or reduction because the obligee has failed to exercise diligence in collecting accounts receivable which have been assigned by the principal debtor as security for the indebtedness? The trial court held that the creditor’s failure to exercise diligence to enforce the accounts receivable constituted a defense to the surety’s liability. Therefore, the court opened a judgment confessed against the surety after a default by the principal debtor. We reverse.

North American Trading Company (NATCO) is a Pennsylvania corporation which is wholly owned by Lowell M. Rosenthal, who serves as corporate president, and Wilfred A. Weiss, who acts as secretary-treasurer. Rosenthal and Weiss executed a written agreement guaranteeing repayment of all sums advanced and to be advanced by McKees-port National Bank to NATCO. In July, 1982, the bank extended to NATCO a line of credit for $200,000.00, in exchange for which NATCO executed and delivered to the bank a promissory note. NATCO and Indiana Boneless Beef Distributors, Inc., another corporation owned by Ro-senthal and Weiss, also assigned accounts receivable to the bank to secure the loan. A default in repayment occurred in the summer of 1984, and the bank made a demand on Rosenthal and Weiss for payment. When payment was not forthcoming, judgment was confessed against them on August 31, 1984 for $169,500.00, plus interest and attorney’s fees, as authorized by their written agreement. On September 21, 1984, petitions to open or strike the judgment were filed. In defense of their liability, Rosenthal and Weiss alleged that the bank had not been diligent in collecting the accounts receivable which had been assigned as security for the loan. The trial court concluded that, if proved, this would constitute at least a partial defense to the assumed liability of Rosenthal and Weiss and opened the judgment. The bank appealed.

A petition to open judgment is an appeal to the equitable powers of the court. As such it is committed to the sound discretion of the hearing court and will not be disturbed absent a manifest abuse of discretion. Lincoln Bank v. C. & H. Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982). A judgment taken by confession will be opened in only a limited number of circumstances, and only when the person seeking to have it opened acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury.

First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 506 Pa. 439, 442-443, 485 A.2d 1086, 1088 (1984). That appellees’ petition was promptly filed is not disputed. Rather, the issue in the trial court was whether Rosenthal and Weiss had alleged a meritorious defense to their contractually assumed obligation to pay the indebtedness owed by their corporation.

Appellees’ evidence showed that appellant bank had been aware in June, 1984 that NATCO was experiencing financial difficulties. Despite this knowledge, the bank did not attempt to collect the accounts receivable which had been assigned to it as collateral security for NATCO’s indebtedness. The failure to proceed diligently, the trial court held, was at least a partial defense to appellees’ agreement to pay the moneys owed by their corporation.

The contract between the parties states specifically that it “is intended to be a contract of suretyship, upon which each of the [appellees] intend to be legally bound.” As a general rule, a creditor has a “duty not to impair the security in its control which may have provided the means of satisfying the debt ... [and] must not prejudice the right of the surety to resort to the security when the surety pays the debt and becomes entitled to subrogation.” First National Consumer Discount Co. v. McCrossan, 336 Pa.Super. 541, 548, 486 A.2d 396, 399 (1984). See: Franklin Savings & Trust Co. v. Clark, 283 Pa. 212, 129 A. 56 (1925); Fegley v. McDonald, 89 Pa. 128 (1879). “[U]nder certain circumstances, if the creditor [does] not exercisef] reasonable (due) diligence in preserving the security, then the obligation of the [surety is] ... reduced to the extent that [he was] injured.” First National Consumer Discount Co. v. McCrossan, supra 336 Pa.Super. at 550, 486 A.2d at 400-401, citing Restatement of Security § 132 (1941); 72 C.J.S. Principal & Surety § 197; 38 C.J.S. Guaranty §§ 7, 61. However, where the guaranty is absolute and unconditional and does not require the creditor to take any action to preserve the security, the creditor’s failure to do so will not relieve the surety’s obligation to pay upon default. See: First National Consumer Discount Co. v. McCrossan, supra; Continental Leasing Corp. v. Lebo, 217 Pa.Super. 356, 272 A.2d 193 (1970); Ford Motor Credit Co. v. Lototsky, 549 F.Supp. 996 (E.D.Pa.1982); Paul Revere Protective Life Insurance Co. v. Weis, 535 F.Supp. 379 (E.D.Pa.1981), aff'd, 707 F.2d 1403, 1405 (3d Cir.1982).

The surety agreement executed by Rosenthal and Weiss provided that they “warranted] and [became] surety for the punctual payment at maturity ... of each and all loans, advances, credits and ... all other indebtedness of every kind ... owing to [appellant] by the Borrower____” The contract further stated that the surety “waive[d] ... presentment, demand, protest and notice of dishonor of any and all of said instruments hereinbefore referred to, and likewise waive[d] demand for payment and notice of nonpayment of any and all loans, advances, credits and other obligations hereinbefore referred to, and promptness in commencing suit against any party thereto or liable thereon and/or in giving any notice to or of making any claim or demand hereunder upon the [appellees].” Furthermore, appellees expressly “consented] and agreed[d] that [appellant could] at any time ... in [its] discretion ... exchange, release and/or surrender all or any of the collateral security, or any part or parts thereof ... without notice to or further assent from [appellees], who ... agreed[d] hereby to be and remain bound upon this guaranty, irrespective of the existence, value or condition of any collateral and notwithstanding any such change, exchange ... [or] re-lease____” (emphasis added).

We conclude from the language of the written agreement that appellees’ duty to repay the loan, in the event of default by the principal obligor, was absolute and unconditional and did not depend upon an inability to realize satisfaction from the collateral. Thus, the obligee was not required to look to the accounts receivable pledged as security before demanding payment from the surety. It must necessarily follow, therefore, that it was not a defense to the surety’s obligation that the obligee failed to move promptly to collect those accounts receivable which had been assigned to it as security for the principal indebtedness.

Appellees rely upon a decision of this Court in Girard Trust Bank v. O’Neill, 219 Pa.Super. 363, 281 A.2d 670 (1971) to support their argument that they should be relieved of their assumed liability to the extent that the bank could have satisfied the principal indebtedness from the accounts receivable. That decision, however, did “ ‘not at all address itself to the issue of unconditional suretyship agreements’ ” and, therefore, is inapposite. See: First National Consumer Discount Co. v. McCrossan, supra 336 Pa.Super. at 551, 486 A.2d at 401, quoting The Paul Revere Protective Life Insurance Co. v. Weis, supra at 385.

We conclude, for these reasons, that the trial court was in error when it held that the bank’s failure to act promptly to pursue collection of the accounts receivable constituted a defense to the surety’s obligation to make payment upon default of the principal obligor.

The order opening the judgment is reversed.

      . Although an assignment of accounts receivable was executed, it does not appear that copies of the corporate accounts receivable were ever delivered to the bank or that the debtors were given notice of the assignment.

      . Both corporations are now insolvent.

      . The evidence did not show and the trial court did not hold that the value of the accounts receivable had been impaired by the bank’s failure to act promptly to collect them. When the corporations went into bankruptcy, however, the accounts receivable were seized by the trustee.

      . Weiss’ petition to open the judgment contained an averment that his signature had been forged on checks used to draw on the line of credit which had been advanced to NATCO by the bank. The evidence showed, however, that the use of corporate checks to draw on the account had been duly authorized and that no objection had been communicated to the bank during the several years in which statements of the loan account had been sent to NATCO. This averment, therefore, was inadequate to constitute a defense to Weiss’ guarantee to repay moneys advanced by the bank to NATCO.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    513 A.2d 437
    CRAIG COAL MINING COMPANY, Appellant, v. Frank ROMANI, a/k/a Francis Romani, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 1, 1986.
    Filed July 23, 1986.

      Stephen Israel, Pittsburgh, for appellant.
    Marvin Schreiber, Pittsburgh, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This appeal lies from an Order granting summary judgment.

Appellant, Craig Coal Mining Company, through its president, Robert Woods, contracted with appellee, Frank Roma-ni, for the sale of a “4500 Manitowac Dragline”, a piece of machinery used in strip mining. The agreement was based on a mailgram offer of sale to appellee wherein time was made of the essence in performance of both buyer’s and seller’s obligations. The acceptance contained a date certain for the closing, at which appellant was to transfer clear title to the machine. This required delivery of a release of lien from the bank holding paper on appellant’s equipment.

Four days prior to the closing, appellant, unknown to appellee, filed a petition for bankruptcy. Woods appeared at settlement without the necessary documents, appellee refused to pay for the dragline, and also for some other equipment ancillary to the dragline received by him prior to the bankruptcy. Appellant then instituted suit for breach of contract against appellee who in turn moved, successfully, for summary judgment. The judgment order was thereafter vacated as to the dragline attachments, and reinstated as to the dragline itself.

The issue presented is whether

bankruptcy provide[s] an automatic stay wherein performance of contractual obligations are forbidden until the court orders performance through the trustee or debtor-in-possession, at which time both parties to the contract must perform or be in breach.

Appellant’s brief at V.

We first note the standard to be applied in assessing the propriety of a summary judgment.

When reviewing the grant of summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. In order to uphold a grant of summary judgment, the record must demonstrate both an absence of genuine issues of material fact and an entitlement to judgment as a matter of law.

Chicarella v. Passant, 843 Pa.Super. 330, 340, 494 A.2d 1109, 1114 (1985) (citations omitted).

None of the facts, as summarized above, are in dispute. It is only appellant’s assumptions as to the course of events dictated by the law which are now in question.

Appellant argues that the bankruptcy acted as a supervening factor, excusing its failure to timely perform by rendering such performance impossible. At the same time it is contended that all other obligations of the parties, particularly those of appellee, remained intact pending court decision on the matter, and resumption, by a trustee, of activity on appellant’s behalf.

In support of this freeze frame approach, appellant cites 11 U.S.C.S. § 362 which provides, when a bankruptcy petition has been filed, for an automatic stay of proceedings, “including arbitration, license revocation, administrative, and judicial proceedings. Proceedings in this sense encompasses civil actions as well, and all proceedings even if they are not before governmental tribunals.” Comment to 11 U.S.C.S. § 362.

Subsection (a)(3), to which appellant specifically refers, prevents “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” When read in pari materia with the other sections of the statute, it becomes clear that this subsection does not encompass the execution of a previously formed compact, which cannot fall within the “proceedings” rubric of the Section as a whole.

Further, it is generally well settled that “insolvency or bankruptcy of a party does not operate to relieve him from the obligation to perform a contract.” 17 Am Jur 2d Contracts § 415 (1964). See also J. Murray, Murray on Contracts § 180 (1074).

Bankruptcy, as a condition personal to the promisor and not inherent in the act to be performed, is considered subjective impossibility. 17 Am Jur 2d Contracts § 415 (1964). It is a question of “I can’t do it”, rather than, as appellant suggests, “It can’t be done.” See generally B’s Company Inc. v. B.P. Barber Assoc., Inc., 391 F.2d 130, 137 (4th Cir.1968).

The Restatement (Second) of Contracts, in Comment (e) section § 261,,

recognizes that if the performance remains practicable and it is merely beyond the party’s capacity to render it, he is ordinarily not discharged, but it does not use the terms “objective” and “subjective” to express this. Instead, the rationale is that a party generally assumes the risk of his own inability to perform his duty. Even if a party contracts to render a performance that depends on some act by a third party, he is not ordinarily discharged because of a failure by that party because this is also a risk that is commonly understood to be on the obligor.

The transfer of title under the contract here in question is conditioned upon appellant’s acquisition of a release from the lienholder. However, under the provisions of the lien document termed the “Credit Facility”, the buy back figure for the dragline was not broken out from the aggregate amount owed by appellant on its real estate and equipment. In addition, prepayment of the debt, wholly or in part, was specifically disallowed.

Appellant argues that his failure to deliver the release as promised became irrelevant in light of the bankruptcy. However, no attempt had been made to secure a written confirmation of the release prior to the filing of the petition, although the time limitation had been set by appellant’s own offer. Therefore, appointment of the trustee, which did not occur until two (2) weeks subsequent to the termination date specified by the offer, solved nothing. The court will not remake a contract simply to comport with an appellant’s somewhat cavalier attitude toward contractual responsibility, nor may one party ignore agreed upon terms with impunity.

Manifestly, a plaintiff cannot prevail in an action for non-performance of a contract if he alone is responsible for the non-performance.

17 Am Jur 2d Contracts § 425 (1964). Appellant may not, in fact, take advantage of an insurmountable obstacle placed, by himself, in the path of the other party’s adherence to an agreement. By preventing performance he also excuses it. Pittsburgh Die Sinkers Lodge No. 50 of International Die Sinkers Conference v. Pittsburgh Forgings Co., 255 F.Supp. 142 (1966). See also Hetkowski v. School District of Borough of Dickson City, 141 Pa.Super. 526, 15 A.2d 470 (1940).

We find therefore that the lower court correctly decided upon appellee’s entitlement to summary judgment with respect to the dragline itself, as a matter of law.

However, the court was divested of jurisdiction once the appeal was lodged, Pa.R.A.P. 1701, rendering it powerless to vacate any part of the original summary judgment order, and making any further orders nugatory. In order to rectify the procedural impasse this creates, we now vacate the portion of the summary judgment order affecting the dragline attachments, and remand for further proceedings on that matter alone.

Affirmed in part, vacated in part. Remanded for proceedings concerning the dragline attachments. Jurisdiction is relinquished.

      . § 362. Automatic stay
      (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title [11 USCS §§ 301, 302, 303], or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3) ) [15 USCS 78eee(a)(3) ], operates as a stay, applicable to all entities, of—
      (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title [11 USCS §§ 101 et seq.], or to recover a claim against the debtor that arose before the commencement of the case under this title [11 USCS §§ 101 et seq.];
      (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title [11 USCS §§ 101 et seq.];
      (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
      (4) any act to create, perfect, or enforce any lien against property of the estate;
      (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title [11 USCS §§ 101 et seq.];
      (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title [11 USCS §§ 101 et seq.];
      (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title [11 USCS §§ 101 et seq.] against any claim against the debtor; and
      (8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.

      . § 261. Discharge by Supervening Impracticability
      Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.


author: TAMILIA, Judge:

text:
    513 A.2d 440
    Mary A. GULENTZ, Administratrix of the Estate of James P. Gulentz, Deceased v. SCHANNO TRANSPORTATION, INC. and Todd A. Trice. Appeal of SCHANNO TRANSPORTATION, INC.
    Superior Court of Pennsylvania.
    Argued April 16, 1986.
    Filed July 24, 1986.

      P. Christian Hague, Pittsburgh, for appellant.
    Cyril T. Garvey, Sharon, for Gulentz, appellee.
    P. Raymond Bartholomew, Sharon, for Trice, appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

Before this Court is an appeal from the granting of summary judgment to Todd Trice and partial summary judgment to Mary Gulentz. Also before us is a motion to strike portions of appellee’s designation of additional contents of reproduced record.

This case arises from a 1980 accident in Ohio. The decedent, James Gulentz, was one of three passengers in an auto operated by Todd Trice. A collision occurred between the car and a tractor trailer operated by Wayne Fosdick. The tractor was owned by B & C Trucking and the trailer by Schanno Transportation, Inc.

After the accident, Fosdick, Schanno and B & C Trucking filed a personal injury and property damage action against Trice in Ohio. In July of 1983, a jury verdict for Trice resulted, with the jury stating in responses to interrogatories that Trice was not negligent and Fosdick was negligent. (80 C.V. 1999 C.P. Portage County Ohio).

In June of 1981, Mary Gulentz, as administratrix of the estate of James Gulentz, commenced wrongful death and survival actions in Mercer County against Fosdick, B & C Trucking, Schanno Transportation, Inc. and Trice. Fosdick, B & C and Schanno filed preliminary objections raising the question of jurisdiction and the court sustained the objections. On appeal to this Court we reversed in part finding jurisdiction to exist as to Schanno and remanded for further proceedings. (Gulentz v. Fosdick, 320 Pa.Super. 38, 466 A.2d 1049 (1983)).

Following remand, Trice filed an answer and new matter in which he alleged the verdict in the Ohio action collaterally estopped Schanno from litigating the relative negligence of Trice and Schanno.

Appellant Schanno in reply to new matter admitted that a jury rendered a verdict for Todd Trice but denied any implication that it was responsible for any negligence of Fosdick, claiming he was an independent contractor. (Reply to New Matter of Defendant Trice, filed 3/9/84).

Subsequently, Gulentz orally moved for partial summary judgment contending the issue of liability of Schanno had been determined in the Ohio litigation. Trice also orally moved for summary judgment on the same basis.

The lower court in an Order issued December 31, 1984 granted Trice’s motion dismissing him as a defendant. The court also granted partial summary judgment to Gulentz on the sole question of the negligence of Fosdick. Both were based on the prior Ohio litigation. Judgment was entered on the Trice portion and an appeal filed; Schanno was granted a motion to certify the partial summary judgment as to Gulentz, in order to obtain an immediate appeal. A petition to appeal was then granted by this Court.

Appellant later filed a motion to strike portions of appel-lee’s Designation of Additional Contents of Reproduced Record on the grounds it was not part of the lower court record.

In this adjudication we will address both the motion to strike and the issues raised on appeal.

Appellant maintains the trial court erred in granting summary judgment citing four specific instances.

The first basis for challenging the lower court’s ruling also provides the basis for the petition to strike. Appellant contends the summary judgment was based on matters not part of the record, specifically the Ohio cases. It is argued that neither party filed properly authenticated copies of any Order rendered in Ohio before summary judgment was granted and in addition the filing of the Ohio judgments on January 15, 1985 was improper because the court no longer had jurisdiction after the filing of an appeal January 9, 1985.

We do not agree with appellant’s/petitioner’s argument and think the Ohio judgments were properly considered by the lower court and made part of the record.

In reaching this decision we first note that in appellant’s reply to New Matter of Todd Trice (filed March 9, 1984) the existence of the jury verdict in favor of Trice was admitted. This admission was part of the record before the court when it granted summary judgment.

It is correct that a court may not ordinarily take judicial notice in one case of the records of another case. Naffah v. City Deposit Bank et al., 339 Pa. 157, 13 A.2d 63 (1940); Woolard v. Burton, 345 Pa.Super. 366, 498 A.2d 445 (1985). However, it has been held in situations dealing both with preliminary objections and summary judgments that this does not hold true where the facts are admitted. Thal v. Krawitz, 361 Pa. 178, 63 A.2d 33 (1949); Walker v. Ohio River Company, 428 Pa. 552, 239 A.2d 206 (1968); Callery v. Mun. Authority of Township of Blythe, 432 Pa. 307, 243 A.2d 385 (1968); Woolard, supra.

The sufficiency of a complaint which refers to a separate and distinct proceeding is determined by a consideration of all relevant matters therein set forth. Castle View Burial Park v. Bell Telephone Co., 367 Pa. 289, 293, 80 A.2d 699, 701 (1951). We would hold this equally applicable to the admission in the present case.

At no time does appellant/petitioner challenge the validity or the existence of the foreign judgments but rather raises a procedural defect in support of exclusion. We think the trial judge properly considered the Ohio litigation involving Fosdick on the basis of the admission by appellant. In addition Pa.R.A.P. 1926 provides a basis for the inclusion by the trial court of the judgments in the record. It would also provide a basis for action on the part of this Court to include the relevant documents. In this instance since the existence and validity of the judgments is undisputed, in the interest of judicial economy such action would be warranted.

Therefore we deny the petition to strike and find appellant’s first argument to be without merit.

Appellant next maintains the trial court erred in determining that appellee could assert collateral estoppel under Ohio law even though she was not a party to the litigation and in applying Pennsylvania law to the collateral estoppel issue rather than Ohio law.

The lower court determined that there was no conflict between Pennsylvania and Ohio law under the facts of the case and applied the law of the forum. The court relied on Estate of Ellis II, 460 Pa. 281, 333 A.2d 728 (1975) to support its determination that mutuality is not a requirement to raising collateral estoppel in Pennsylvania. The requirements as set forth are that the party against whom the estoppel is invoked be the same, the issue be identical, the previous judgment be final on the merits, and the party had a full and fair chance to litigate the issue in the prior action. Ellis, supra; Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983). We agree that this is a proper statement of the law in Pennsylvania. See also Temporaries, Inc. v. Krane, 325 Pa.Super. 103, 472 A.2d 668 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984).

The interpretation of Ohio law is at the core of appellant’s argument for they assert mutuality is required under Ohio law, insisting the court erroneously interpreted Hicks v. De La Cruz, 52 Ohio St.2d 71, 369 N.E.2d 776 (1977) which broke from the strict mutuality rule. Appellant cites Goodson v. McDonough Power Equipment, Inc., 2 Ohio St.3d 193, 443 N.E.2d 978 (1983) to support the contention that Hicks, supra, should be narrowly construed to the facts therein.

The lower court specifically addressed the application of Goodson and determined that the policy considerations which prompted the decision were not present in this case. In Goodson, the court refused to permit a plaintiff to use collateral estoppel against a lawn mower manufacturer based on a design defect. The court held the use of collateral estoppel would violate due process since it could not be foreseen that the issue would subsequently be utilized collaterally and the party had little knowledge or incentive to litigate fully and vigorously due to the circumstances presented therein. Goodson, supra at 201, 443 N.E.2d at 986.

In the present case the court determined appellant knew that if it lost the Ohio case, damage suits would be forthcoming from the passengers in the car. Thus the court held this to be a situation where Ohio courts would not require mutuality. We agree. The Goodson court recognized and affirmed the decision in Hicks, supra, which focused on the party defendant’s clear opportunity to have his day in court so as to fully litigate the issue. Once this was found, collateral estoppel was deemed proper without mutuality. The chief concern in Goodson in refusing to follow Hicks was that the injuries resulted from distinct underlying incidents, Goodson, supra at 203, 443 N.E. at 988.

We think the court was correct in its analysis and determination that no conflict between Pennsylvania and Ohio law exists in this case. Application of Pennsylvania law was thus proper.

Next, appellant argues that because the prior case was tried under a contributory negligence theory, it is not proper to grant summary judgment in a case that would be tried under comparative negligence. Again Goodson, supra, is cited for language that where the same rules of law were not applicable, collateral estoppel would not apply.

We do not agree with this contention. The reference to exclusion of collateral estoppel in Goodson because of differences in state law as to theories of negligence was part of a listing of various factors which would influence the court in determining whether mutuality was required. The lower court here did a similar evaluation of factors and properly found no need to require mutuality.

The decision relied on by the lower court in granting summary judgment made a specific finding as to the negligence of Fosdick and the non-negligence of Trice. This finding is significant for whether the case was tried under a contributory or comparative negligence theory the result would be the same since no negligence was attributed to Trice.

Appellant’s last two issues are also without merit. First it is asserted that the answers to special interrogatories on the Ohio litigation indicating Trice was not negligent and Fosdick was negligent are alternative findings and thus should not be given preclusive effect. We do not share appellant’s view for we find the answers were necessary determinations in a case tried under contributory negligence.

Finally appellant maintains the court improperly relied upon separate litigations involving two of the other passengers, because the cases were not final. We find the court did not rely upon these cases in applying collateral estoppel but looked to them in support of the argument that Ohio courts would not strictly enforce the mutuality rule. (Opinion, Stranahan, filed Jan. 17, 1985 pp. 9-10).

In light of the preceeding discussion, it is our determination that the summary judgment granted to Todd Trice and appealed at No. 83 Pittsburgh, 1985 is affirmed. The partial summary judgment granted to Mary A. Gulentz and appealed at No. 1137 Pittsburgh, 1985 is also affirmed.

No. 83 Pgh. 1985 judgment is affirmed.

No. 1137 Pgh. 1985 judgment is affirmed.

      . The cases in question are: Fosdick v. Trice, C.P. Portage County, Ohio, 80 C.V. 1999 (1983); Timothy Scott, et al. v. B & C Trucking, Inc., et al., 82 C.V. 0921 (1984); Bryan G. Haun v. B & C Trucking, Inc., et al., 82 C.V. 1169 (1984).

      . Rule 1926. Correction or Modification of the Record
      If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questons as to the form and content of the record shall be presented to the appellate court.

      . Timothy Scott, et al. v. B & C Trucking, Inc., et al, supra; Bryan G. Haun v. B & C Trucking, Inc., et al., supra.


author: BROSKY, Judge:

text:
    513 A.2d 445
    COMMONWEALTH of Pennsylvania v. Vincent EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1986.
    Filed July 28, 1986.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, JOHNSON and LIPEZ, JJ.
   BROSKY, Judge:

This appeal is from the judgment of sentence imposed after appellant was found guilty in a bench trial of unauthorized use of an automobile. Appellant’s sole contention is that the stop of the automobile he was driving was improper and, thus, that the trial court erred in refusing to suppress evidence seized as a result of that stop. We agree with appellant, and, accordingly, vacate the judgment of sentence and remand this case for a new trial.

Appellant was arrested on February 5, 1985 and charged with theft, receiving stolen property and unauthorized use of an automobile. Prior to trial, appellant litigated a motion to suppress physical evidence on the ground that it was fruit of an illegal stop. The trial court denied the motion on May 2, 1985 and the case proceeded immediately to a bench trial. The trial judge found appellant guilty only of the charge of unauthorized use of an automobile. Appellant timely filed post-verdict motions which were denied by the court below. On July 30, 1985, appellant was sentenced to twelve months probation. This appeal timely followed.

. Appellant contends that the trial court erred in denying his suppression motion.

In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976) (footnote omitted).

Viewed in that light, the record reveals the following: On February 5, 1985, at 2:30 a.m., Philadelphia Police Officer William Humes observed appellant driving a 1984 Toyota Célica. The officer observed that the metal and plastic surrounding the car’s headlights were twisted up and that there was a large scrape on the driver’s side which extended from the front fender to the rear fender.

Because the car was new and the damage appeared to be fresh, the officer stopped the vehicle pursuant to a policy of the Philadelphia Police Department to stop cars with such damage to determine whether an accident report, if necessary, was filed. Appellant was unable to produce a driver’s license and registration when asked to do so by Officer Humes. The officer then had a computer check run on the vehicle and was informed that the car was owned by Hertz Rent-a-Car Company. Although appellant had told Officer Humes that the car was a rental, he could not produce any documents showing that he had rented the vehicle. The officer then placed appellant under arrest and impounded the car. When Hertz was later contacted by the officer, it informed him that the automobile had not been rented, but had been removed from the Hertz garage at the Philadelphia International Airport.

Appellant contends that the suppression court erred in concluding that, under the foregoing facts, appellant’s Fourth Amendment rights were not violated by the stop of the automobile. The court below concluded that Officer Humes had a reasonable suspicion that appellant had violated the Motor Vehicle Code and, therefore, that an investigatory stop was justified under the Fourth Amendment. Appellant argues that as a matter of law, the facts available to the officer could not support a reasonable suspicion that appellant had violated the Motor Vehicle Code. We must agree with appellant.

An individual has a reasonable expectation of privacy in an automobile and when a vehicle is stopped by a police officer, a seizure within the meaning of the Fourth Amendment has occurred. Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985).

[Ejxcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Id., 348 Pa.Superior Ct. at 312, 502 A.2d at 224 (emphasis added), quoting Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979); see also, Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973).

Thus, “police may stop an automobile if they reasonably suspect a possible violation of the Vehicle Code ...” Commonwealth v. Burrell, 286 Pa.Super. 502, 429 A.2d 434 (1981) (citations omitted). A court may not conclude that a police officer had a reasonable suspicion of unlawful activity unless the officer relied on specific and articulable facts which together with the rational inferences from those facts, reasonably warranted the intrusion. Commonwealth v. Mayo, 344 Pa.Super. 336, 496 A.2d 824 (1985).

In the instant case, Officer Humes stopped the car solely on the basis of the damage to it he had observed. He suspected from the fresh damage that the car might have been in a type of accident required by the Motor Vehicle Code to be reported and that it was possible that appellant had failed to report such an accident.

We agree with appellant that the officer’s suspicion cannot be considered a reasonable one within the meaning of Mayo, supra. The conclusion that appellant violated the Motor Vehicle Code only follows from the articulated fact of the fresh damage to the car if the damage to the car was caused of a type required by the Motor Vehicle Code to be reported and if appellant did not report the accident.

While §§ 3744-3746 do require many types of vehicular accidents to be reported to the police, there are certainly a myriad of ways an automobile could sustain even severe body damage which would not require notification of the police. Owners can damage their cars in their driveways or garages or their cars can be struck while parked in lots or on the street. In such cases and, indeed, in any case of an accident which does not involve damage to another’s vehicle or property or injury or death, §§ 3744-3746 create no duty to report the accident to the police. Thus, vehicle stops based solely on the presence of fresh damage to the cars would include such a number of presumably innocent persons as to approach the type of subjectively administered, random basis for stopping vehicles and interrogating drivers that is prohibited by the Fourth Amendment.

Even assuming that a reasonably sufficient number of cars with fresh damages will have been in accidents requiring notification of the police, motorists involved in such accidents do not violate the Motor Vehicle Code unless they fail to report such accidents. While it logically follows that a driver has to have been in an accident in order to have not reported it, we hardly believe that the mere occurrence of an accident supports a reasonable suspicion that the driver failed to report the accident.

Thus, given the at best tenuous relationship between the presence of fresh damage to a car and a conclusion that an accident required to be reported has occurred and the near absence of any relationship between such damage and a conclusion that the driver did not report an accident required to be reported, we hold that the damage to the car driven by appellant did not reasonably warrant the intrusion of an investigatory stop.

Our conclusion is not affected by the fact that it is the policy of the Philadelphia Police Department to stop cars with fresh damage to them. The police cannot constitutionalize otherwise unconstitutional actions of police officers simply by making such actions department policy.

We conclude, therefore, that the suppression court erred in denying appellant’s motion to suppress physical evidence, i.e., the automobile as fruit of an illegal stop. Accordingly, we vacate the judgment of sentence and remand this case for a new trial at which the Commonwealth will not be permitted to introduce the illegally seized evidence.

Jurisdiction relinquished.

JOHNSON, J. concurs in the result.

      . 75 Pa.C.S. §§ 101-9901.

      . The Motor Vehicle Code in Section 6308(b), specifically authorizes a police officer to stop a vehicle when he has “articulable and reasonable grounds to suspect a violation” of Title 75.

      . Circumstances in which vehicular accidents must be reported to the police are enumerated in 75 Pa.C.S. §§ 3744-3746.
      Section 3744 provides that the driver of any vehicle involved in an accident resulting in injury or death to any person or damage to any vehicle or other property which is driven or attended must give his name, address, vehicle registration number, and other information to any person injured in the accident or to the driver or occupant of any vehicle or property damaged in the accident. The driver must give the same information to any police officer who is present at the scene of the accident or who is investigating the accident. In the event that no police officer is present at the accident scene and none of the persons entitled to the information are in condition to receive it, the driver must report the accident to the police department and provide the police with the above-mentioned information. Section 3745(a) requires that the driver of a vehicle which collides with and causes damage to an unattended vehicle or other property must either: (1) immediately locate and notify the owner; or (2) attach written notice to the vehicle or property giving the driver’s name, address, etc. and notify the police. Section 3746(a) requires that the driver of a vehicle involved in an accident must immediately notify the police if the accident results in either: (1) injury or death to any person; or (2) damage to any vehicle to the extent that it cannot be driven under its own power "without further damage or hazard to the vehicle, other traffic elements, or the roadway, and therefore requires towing."

      . The Commonwealth also argues that the police department policy was intended in part to combat an alleged high incidence of drunk drivers leaving accident scenes. Although Officer Humes did make a reference to drunk drivers at the suppression hearing, upon questioning by the court, he stated that the actual purpose of the department policy was to determine whether or not an accident had been reported. In any event, fresh damage above to a car could hardly support a reasonable suspicion that the driver was drunk.
      The Commonwealth finally contends that the damage to the car provided a reasonable suspicion of hidden damage to its safety and operability. We note first that Officer Humes did not articulate this possibility at the suppression hearing nor did the Commonwealth present any evidence at the suppression hearing to indicate that the type of damage to the car was likely to cause or have such hidden defects. Without such evidence, this Commonwealth’s logic would allow the police to stop every damaged car on the road on the possibility that such cars contain hidden safety defects.
      We must thus conclude once again that damage alone to an automobile does not support a reasonable suspicion that the Motor Vehicle Code has been violated.

      . As this Court observed in Tarbert, supra, nonarbitrary, systematic programs of checking vehicles or drivers, e.g., roadblocks or weighing stations, in which vehicles are stopped absent any articulable suspicion of wrongdoing have been held to pass federal constitutional muster. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Commonwealth v. Nase, 14 D & C3d 592 (1980); State v. Kirk, 202 N.J.Super. 28, 493 A.2d 1271 (1985). We do not find and the Commonwealth has never contended that the police department’s “policy” is equivalent to such a systematic program.


text:
    513 A.2d 448
    Donna P. REITMEYER v. Robert J. REITMEYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1986.
    Filed July 28, 1986.

      Madeline H. Lamb, West Chester, for appellant.
    John J. Teti, Jr., Thorndale, for appellee.
    Before BROSKY, JOHNSON and LIPEZ, JJ.
   BROSKY, Judge:

This appeal is from the order modifying a previous support order and requiring appellant to pay $15 per week for the support of his daughter.

Appellant contends that: (1) the original support order should have been vacated as to appellant’s daughter when she became 18 years old because of her failure to comply with Pa.R.C.P. 1910.3 (1) and (4); (2) he was deprived of his right to due process by not being afforded a hearing on whether support for his daughter should have been vacated when she reached the age of 18, (3) the court below did not apply the correct method of determining child support; (4) there was not sufficient evidence on the record to support the finding of the court below that the payment of child support would not cause an undue hardship to appellant; (5) there was not sufficient evidence on the record to support the findings of the court below as to the net incomes of the parties; (6) the court below abused its discretion in failing to modify the original support order as to appellant’s daughter.

We agree with appellant’s third contention and, for the reasons that follow, vacate the order of the court below and remand this case for a recalculation of appellant’s support obligation.

Appellant and appellee were divorced in December, 1970. On November 1, 1971, an order was entered which provided that appellant pay 30 dollars per week for the support of his two minor children, Debra and Bryan.

Debra became 18 years old in March, 1982. In June of 1982, appellant spoke by telephone with the Domestic Relations Office of Chester County, which, after contacting appellee, informed appellant that he had to continue to pay support for the benefit of Debra because she was still in college.

Appellant continued to make his support payments until the Fall of 1984 when his second wife, whom he had married in December, 1970, and with whom he had had two children, became ill with cancer. At that time, he fell behind in his support payments and consulted counsel.

Counsel, in September, 1984, filed a petition to terminate or modify and to remit arrearages. A hearing was held before a hearing officer on February 26, 1985. At the hearing, appellee presented a petition to modify support which included a request that Debra be allowed to intervene in the action to enforce her right to support.

At the conclusion of the hearing, the hearing officer recommended that appellee’s petition be dismissed; that the January 24, 1972 support order be vacated as of August 1, 1984, as to appellant’s son, Bryan, who had become 18 in July, 1984 and was living at home and working; that the order be otherwise modified to 15 dollars per week for Debra retroactive to August 1, 1984; and that any arrear-ages that would be created by these recommendations be remitted.

Appellant timely filed exceptions to the hearing officer’s recommended order. Appellee filed no exceptions to the recommendations. On August 25, 1985, the court below dismissed appellant’s exceptions. This appeal timely followed.

Appellant first contends that no order continuing support should have been entered because neither appellee nor Debra brought an action to continue support when Debra became 18 in 1982 and because appellee did not comply with Pa.R.C.P. 1910.3(4) when, in response to appellant’s 1984 petition, she filed her petition in which she sought to have support continued for Debra. Implicit in appellant’s argument is the point that the January 24, 1972 order of support was no longer effective as to Debra after she became 18. We must disagree with appellant.

We note preliminarily that:

It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchinson v. Hutchinson, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).

Stump v. Church, 333 Pa.Super. 166, 169-70, 481 A.2d 1358, 1360 (1984), quoting, Lederer v. Lederer, 291 Pa.Super. 22, 24-25, 435 A.2d 199, 200-201 (1981).

In the instant case, the parties in 1971 had entered into a stipulation which provided that “the Father shall pay the sum of Thirty Dollars ($30.00) per week for the support of two minor children, until the children become of age or self-supporting.” However, the order of support entered by the court below on January 24, 1972, neither set forth the settlement agreement in full nor incorporated it by reference. The order merely stated that the court had considered the parties’ stipulation and upon such consideration was ordering that appellant “henceforth pay to Clide L. Kahler, Chief Probation Officer of Chester County, the sum of thirty dollars ($30.00) per week for the support of his two minor children.”

Thus, the 1972 order did not terminate by its own terms as to Debra when she became 18, but obligated appellant to keep making the payments called for by the order until such time as he filed a petition to modify that order and proved that there had been a substantial change of circumstances. See Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985). When Debra became 18, there was, therefore, no need for appellee to file, with Debra’s written consent, a petition to continue support, see Pa.R.C.P. 1910.3(4), or for Debra to file an action in her own right to continue support, see Pa.R.C.P. 1910.3(1).

Appellant also contends that he was deprived of his right to due process by not being afforded a hearing on whether support for his daughter should have been vacated when she became 18. Appellant’s argument appears to be that because an employee of the Domestic Relations Office told him that he would have to keep paying support for Debra despite the fact that she was 18, he was somehow denied a hearing on the question of whether the support order should have been vacated as to Debra.

Appellant’s argument misses the point that the court below did not act to continue support for Debra without giving appellant a hearing. As discussed previously, the support obligation of appellant simply continued beyond Debra’s eighteenth birthday under the 1972 support order in conjunction with which appellant had been given a hearing.

The fact that appellant’s telephone request to the Domestic Relations Office to drop Debra from the support order was refused also does not establish that appellant was denied due process. All that appellant had to do to have been afforded a hearing on the question of whether the support order should be modified because Debra had turned 18 was to (as he eventually did) file a petition to modify the order. See Pa.R.C.P. 1910.18. The fact that appellant was unrepresented by counsel at the time of his request and apparently did not know of his opportunity to be heard on the question of his support obligations hardly establishes that he was denied such an opportunity.

Appellant next contends that the court below erred in not applying the standard set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent’s total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent’s total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.

In Stump, supra., this Court considered a case in which the appellee had sought the termination of a support order as to one of his children who had reached the age of 18, had graduated from high school and was attending a preparatory school. We held that the guidelines set forth in Melzer were to be used in the calculation of child support in that situation, with the added proviso that the amount of support determined by using the Melzer guidelines must not cause an undue hardship on the supporting parent.

Thus, in the instant case the court below should have used the Melzer guidelines as a framework for its decision. We must agree with appellant that the court did not do so, nor did it make all of the factual determinations necessary to an application of the guidelines. The court below failed to determine the parties’ reasonable living expenses and, thus, could not have been able to determine appellant’s ability to suppport Debra. See Melzer, supra. Moreover, while the court below states that its independent calculations confirm the parties’ incomes as found by the hearing officer, it does not state what these incomes are, and the hearing officer’s findings do not appear in the record before us. Under these circumstances, we believe we must remand this case for the court to make the determinations necessary to an application of the Melzer formula. The amount of support thus arrived at should be used by the court as a framework for its decision, keeping in mind the rule that any support ordered may not result in undue hardship to appellant. The court may, of course, take further testimony in order to aid it in making these determinations.

Order vacated. Case remanded for proceedings consistent with our opinion. Jurisdiction relinquished.

      . Pa.R.A.P. 1910.3 provides the following in relevant part:
      An action shall be brought
      (1) by a person, including a minor spouse, to whom a duty of support is owing, or
      (4) by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.

      . Even if the parties’ 1971 agreement had been incorporated in the 1972 order, it is arguable that appellant would have been obligated to pay $30.00 per week until both of his children were no longer minors. Such a conclusion would follow from the facts that the agreement did not specify how much of the $30.00 was to go to each child and that the agreement called for the payment of $30.00 per week until "the children become of age.”

      . We note the enactment of H.B. 98 as amended on October 8, 1985, effective January 6, 1986, which amended Title 23 Pa.C.S., to add § 4322 which provides:
      § 4322. Support guidelines.
      The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention.
      We do not believe this statute has superseded Melzer in child support cases, but rather find it to be consistent with that case. The considerations set forth in the statute are precisely those which Melzer held that the courts of common pleas must use in formulating support orders.

      . These findings do appear in appellant’s reproduced record. A reproduced record is, however, not part of the record on appeal, see Pa.R.A.P. 1921, and, therefore, the findings may not be considered by us. See Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). We do note for the benefit of the court below that appellant would appear to be correct that the findings of the hearing officer as to the parties’ incomes are not supported by the record.

      . Although appellant argues that there was no finding of Debra’s reasonable needs, the court below did, in fact, make such a finding and that finding is supported by the record.

      . Given our disposition, we find it unnecessary to address the other issues raised by appellant.


author: WATKINS, Judge:

text:
    513 A.2d 453
    COMMONWEALTH of Pennsylvania, Appellant, v. Marion SIMMONS.
    Superior Court of Pennsylvania.
    Submitted April 22, 1986.
    Filed July 28, 1986.

      Thomas L. Kearney, Assistant District Attorney, York, for Commonwealth, appellant.
    Raymond R. Smith, York, for appellee.

      Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an Order entered April 16, 1985, in the Court of Common Pleas of York County granting appel-lee-defendant’s motion for a new trial.

Appellee was convicted by a jury of two counts of rape, two counts of statutory rape and two counts of indecent assault. The victim was the appellee’s twelve year old stepdaughter who lived with the appellee and his wife, the victim’s mother.

Appellant, the Commonwealth in this appeal, presents the following questions:

1. Whether evidence of sexual conduct with another which demonstrates a witness’ bias, interest, or prejudice or which attacks the witness’ credibility is admissible despite the Rape Shield Law?

2. Whether the requirements for the introduction of evidence tending to show sexual conduct with another have been met in this case pursuant to Commonwealth v. Black, 337 Pa.Superior Ct. 548, 487 A.2d 396 (1985)?

This Court held in Commonwealth v. Black, supra:

[Ijnsofar as the Rape Shield Law purports to prohibit the admission of evidence which may logically demonstrate a witness’ bias, interest, or prejudice or which properly attacks the wittness’ credibility, it unconstitutionally infringes upon an accused’s right of confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

This Court, in holding that the Rape Shield Law may not be used to exclude relevant evidence showing the witness’ bias or credibility, also emphasized that not all such evidence is necessarily admissible. Rather, a hearing should be held to determine (1) whether the proposed evidence is relevant to show bias or motive or to attack credibility, (2) whether the probative value of the evidence outweighs its prejudicial effect and (3) whether there are alternative means of proving bias or motive or to challenge credibility. Commonwealth v. Black, supra, 337 Pa.Superior Ct. at 557-558, 487 A.2d at 401.

A hearing was held in the court below to determine the admissibility of certain testimony with respect to the victim. The trial court, in its opinion dated August 22, 1984, stated that:

The defendant testified that he wants to testify at trial that in October of 1983 while the victim was being interrogated by her mother in the house where the defendant, the victim’s mother and the victim lived concerning the rumor that the victim was pregnant, that it was then for the first time that the victim accused the defendant of sexual misconduct with her.

Following the hearing, the court below concluded that the testimony proposed to be admitted by the appellee was not admissible and appellee was precluded from testifying to it. However, in an Opinion and Order dated August 16, 1985, on appellee’s Motion for a New Trial, the court below reversed its earlier decision stating that:

While we held at the time of the in camera hearing that the proposed evidence was not for the purpose of showing bias or ulterior motive on the part of the victim, we now believe we were wrong and that we would have held differently if we had had the benefit of the Black and Lee opinions. (Commonwealth v. Lee, Pa.Superior Ct., 293 Hsbg., 1983 (1985)). Thus, we now hold that the probative value of the proposed testimony of the defendant outweighs the prejudicial effect it may have on the Commonwealth’s case.

In Black, supra, this Court noted that the evidence in that case was offered to reveal a specific bias against and hostility toward the appellant and a motive to seek retribution by perhaps, false accusation. 337 Pa.Superior Ct. at 552-555, 487 A.2d at 398-399 (emphasis ours).

The offer of appellee in the case sub judice fails to reveal any bias against or hostility toward appellee or any motive to seek retribution against appellee. Appellee also argued that the testimony was needed to show that the victim was not credible because of the length of time it took to reveal the act. The victim testified at trial as to when she first told her mother of the rape. Further the trial court instructed the jury on the delay in reporting the incident and the question of credibility.

Accordingly, we conclude that the court below erred in granting appellant’s motion for a new trial.

Order reversed and case remanded for sentencing.


author: POPOVICH, Judge:

text:
    513 A.2d 455
    Harold LEFCOURT, a/k/a Hal Lefcourt v. Seymour SHORE and Bunny Shore, H/W, Appellants.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed July 31, 1986.

      William E. Benner, Doylestown, for appellants.
    Robert L. White, Langhorne, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of $19,800.00 entered following a jury trial against the appellants/defendants, Seymour and Bunny Shore. We affirm.

We are asked to review the denial of the appellants’ motion for a new trial and/or judgment n.o.v. In doing so, as to the judgment n.o.v. claim, we first must view the evidence, as well as any reasonable inferences that can be drawn therefrom, in a light most favorable to the verdict-winner. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982), allocatur denied.

The record reveals that in early April of 1982 Mrs. Shore contacted Mr. Lefcourt, the public relations officer for Bucks County and someone she and her husband had known for some 25 years, to ask him to do what he could to stop an organization from buying a piece of property (known as the Klein Building) and starting a business that would compete with their operation (a flea market known as Super Flea, Inc.). Lefcourt agreed to act on their behalf, but he wanted to be paid a fee for his services. Mrs. Shore stated that her accountant (Arthur M. Pollock) would draft a letter to that effect and mail it to him for his perusal. Such a letter, dated May 12, 1982, was forwarded to Lefcourt and provided, in relevant part:

Dear Harold:
I have been authorized by my client the “Shores” to offer to you, for them, the following financial arrangements for your services in regard to the ... [Klein] property.
Should your efforts result in the “Shores” obtaining a lease on the ... [Klein] property, the “Shores” will pay to you a fee equal to ten percent (10%) of the first year lease rental exclusive of any rent paid for utilities, taxes, insurance or maintenance, etc. over a twelve month period from the date of execution of the lease.
* * * * * *
Should you have any questions in regard to this matter, please give me a call.

Prior to receipt of the letter, Lefcourt had completed a meeting with the township manager and secured the address of a New Jersey-based group (counselled by a Mr. November) interested in the property. He also learned that the group had merely made “an inquiry” and not a proposal. Upon communicating these facts to Mrs. Shore, Lefc-ourt outlined what he intended to do, i.e., he was going to get in touch with the people involved and “discourage them from coming in initially”. Additionally, this was the first he learned that the Shores desired ownership of or a lease to the Klein Building. He informed Mrs. Shore that he would use, as he put it, his “public relations efforts” to help in this endeavor since he knew the owner of the building (a Mesh-ulam Riklis, Chairman of the Board of Rapid American Corporation).

Soon after Lefcourt’s conversation with Mrs. Shore, Mr. November was phoned several times. During the course of these calls, Lefcourt advised November of the Shores’ position, and their willingness to take the matter to court if need be to postpone the New Jersey group’s securement of the property in question. November, in turn, informed Lefcourt that he represented a corporation with two million dollars in assets and it was prepared to make a “serious proposal and they were negotiating ... with Rapid American”. When Lefcourt sought to have a meeting and discuss the Klein issue even further, Mr. November acknowledged his acceptance at first, but, thereafter, the concern waned and Lefcourt heard from him no more.

Sometime in May of 1982, Lefcourt brought into the picture a Mr. DeMauro, the division manager for a real estate concern known as “Previews”. Lefcourt told De-Mauro that he represented the Shores and asked whether DeMauro would accept them as clients. It appears that DeMauro held the exclusive listing on the Klein Building at various times for Rapid American. Lefcourt knew this from his dealing in 1981 with Rapid American, on behalf of the Bucks County Commissioners, in regard to the same piece of property.

When the question of the payment of any commission or referral fee came up, Lefcourt gave the name of Matthews and White as the law firm he was associated with in this area of public relations, and to which such matters should be directed. DeMauro arranged to forward any commissions due, as a result of any agreement between the Shores and Rapid American, to the law firm.

By letter dated June 10, 1982, Pollock asked Lefcourt to arrange a meeting with Riklis. Lefcourt called DeMauro and told him, as the realtor, to contact Mr. Ackerman, a vice-president in charge of real estate for one of Rapid American’s wholly-owned subsidiaries and the son-in-law of Riklis. Mrs. Shore was informed of the arrangements being made.

A meeting in New York was conducted, either in the latter part of June or in the early part of July of 1982. Because Lefcourt was not able to attend, DeMauro asked, inasmuch as it was Lefcourt’s responsibility to represent the Shores’ public relations interest by establishing a link to Riklis, to have a letter of introduction for the Shores prepared by Lefcourt. This occurred (see Exhibit P-4) and was felt by DeMauro to be necessary since the November group, “based on their numbers and their history of operations[, was] a stronger client or prospect to purchase or lease the situation than the Shores at that time____” Even Mr. Ackerman acknowledged his discussions with the November group, through a New York amalgam of individuals, and the consideration given to all interested parties involved in acquiring the Klein property.

After the meeting in New York, but before July 5, 1982, Mrs. Shore phoned Lefcourt to say, “... you have to do something, we want to move in September with a date ... Could you please call your friend Meshulam and tell him.” Lefcourt phoned Riklis’ office and spoke to his secretary about the Shores’ request and asked if anything could be done. The next thing Lefcourt knew, the Shores were making improvements to open in September. A lease had been obtained by the Shores, with the first ten months rent being credited by Rapid American toward the costs expended by the lessees to renovate the Klein property. Lefcourt received an invitation to attend the grand opening.

By October of 1982, Lefcourt had yet to receive any remuneration for his services. When he inquired about his 10% fee, which he calculated to be $19,200.00 (10% of the $192,000.00 yearly rent due Rapid American), the Shores scheduled a meeting for November 3 or 4 to discuss payment.

The Shores, and another interested party in the joint venture, queried Lefcourt as to what he had done, if anything, to facilitate the leasing of the Klein property. As far as the Shores were concerned, Lefcourt had not lived up to his part of the bargain in failing to attend the meetings in New York with Rapid American and not having Riklis present during these sessions. But, when Lefcourt recounted what he had done (behind the scenes), the Shores conceded that they owed him something and offered to pay him $3,200.00.

Lefcourt, indignant over the whole turn of events, left and, thereafter, commenced the present law suit. After a three-day trial, a jury found in favor of Lefcourt and awarded him $19,800.00. This timely appeal followed.

Of the three issues raised by the Shores, we find it necessary to address only one, and do so because of its novelty in this jurisdiction. The remaining issues were properly dealt with by the trial court in its opinion to us, and we adopt it as our own for allocatur purposes.

To start with, the Shores admit that subsection (5) of the Real Estate Licensing and Registration Act (63 P.S. § 455.201) exempts an individual dealing in public relations from having to meet the licensing requirements of this Commonwealth so as to entitle him/her to receive compensation normally reserved for those engaged in the field of brokering real estate.

However, the Shores argue, the exemption to the licensing stricture is lost when a public relation’s person does something other than promote his client’s real estate. They believe that “when a public relation’s person is involved in negotiating with or aiding any other person in obtaining real estate, ... that falls under subsection 1 and the exemption does not apply.” (Emphasis added) Thus, they urge, Lefcourt was acting as an unlicensed “real estate broker” in violation of the Act, and this licensure deviation relieved them of the obligation to pay him anything.

The definition portion of the Act reads:

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

63 P.S. § 455.201.

Giving subsection (5) a common-sense interpretation, as gleaned from the scheme of the Act at large and the provision in particular (see 1 Pa.C.S. §§ 1921,1922), we read its plain language to embrace the use of an individual’s talents in the area of public relations, be they for the benefit of a client-lessor/lessee or seller/buyer. As astutely discerned by the trial court, this extrapolation is feasible “because the [subjection talks about sale or purchase so it is talking about both sides of the transaction.” Accordingly, we find Lefcourt’s conduct insulated from assault and not violative of the licensing portion of the Act.

To explicate, Lefcourt was employed by Bucks County as a certified public relations counselor, and he maintained his own public relations firm as well. Because it was common knowledge in the community that he was friends with Riklis and was a person who could “control the destiny of things”, it was in this posture that the Shores approached Lefcourt to “ask him if he could arrange a meeting with Meshulam Riklis.” He was to use his “best efforts” to accomplish this task so that the Klein Building could be attained, but “he was not to obtain it.” This would be left to others, as confirmed by the Shores’ accountant, Pollock. In particular, Pollock testified that Lefcourt was “being asked to promote the Shores’ interest with Mr. Riklis”, and to bring to the Shores “his background and experience.” As for how Lefcourt intended to carry-out this public relations project, neither Pollock nor the Shores were privy to the specifics involved. Mrs. Shore stated it this way:

... he was going to do what he could to get the building. He didn’t tell us where he was going or when he was going [,] but he said he was going to do different things to get us the building.

To the same effect, Pollock remarked:

... he [Lefcourt] was going to use his efforts to obtain it. Now, whether it meant going to the president of the company or maybe sometimes you are better off talking to a secretary or to a vice-president and if the results are accomplished for my client then I feel that the letter [of introduction prepared by Lefcourt and given to DeMauro] served its purpose.

Even the realtor, engaged to help the Shores formalize the proposal to present to Rapid American, stated that Lefcourt was representing the Shores’ public relations interest in the transaction.

The fact that Lefcourt may not have been present or involved in the meetings leading up to the acquisition of the property does not diminish his role in getting the matter on track and moving the parties, vital to the success of the project, together. Curiously enough, Lefcourt’s lack of involvement in the negotiations is at the crux of the Shores’ complaint that a fee need not be paid. However, this exact lack of involvement renders the appellation of “real estate broker” inapposite to Lefcourt so as to enhance his claim as a public relations man for the Shores. See generally Wilkins v. Heebner, 331 Pa.Super. 491, 480 A.2d 1141 (1984).

Under the law of contracts, we believe that Lefcourt is entitled to payment for his services. First, the Shores offered Lefcourt a fee for aiding in the proposed securement of the Klein property, the specifics of which were never itemized. Second, Lefcourt accepted the offer. Third, Lefcourt provided consideration in the form of services outlined supra. Therefore, we find the agreement, reduced to writing on May 12, 1982, is enforceable so as to entitle Lefcourt to compensation. See Corbin on Contracts, §§ 2-7 (1952). Likewise, in conjunction with the appropriate standard of review (see McDevitt v. Terminal Warehouse Co., supra), we have examined the Shores’ motion for new trial and find it to be unpersuasive.

Judgment affirmed.

      . We would add, since it is not discussed in the earlier part of the opinion, that Lefcourt testified that he phoned Ackerman in the initial stages of the venture. He was told then by Ackerman not to bring anyone to him (Rapid American) who did not have the financial resources to complete the proposed deal.


text:
    513 A.2d 459
    DAUPHIN DEPOSIT BANK AND TRUST COMPANY v. William B. TENNY and Shirley A. Tenny, his Wife and Wm. B. Tenny, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued May 21, 1986.
    Filed July 31, 1986.
    Petition for Allowance of Appeal Denied Jan. 27,1987.

      William B. Tenny, Camphill, appellants, in pro. per.
    James D. Flower, Lemoyne, for appellee.

      Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellants appeal a final Order, dated July 8, 1985, granting summary judgment for appellees and denying the relief requested by appellants.

This case has a long and complicated procedural history which involves numerous journeys through the appellate courts. On July 16, 1974, William B. Tenny, Inc. (corporation) executed a mortgage for $80,000 to appellee, Dauphin Deposit Bank and Trust Company. On February 9, 1977, appellee initiated foreclosure proceedings against appellant corporation. Appellant filed an answer admitting default but contesting the reasonableness of a demand for attorney’s commissions. Dauphin Deposit Trust Co. v. Tenny, 27 Cumberland L.J. 356, 357 (1977). The lower court in that case found that appellants admitted the existence of the mortgage and its terms and conditions and the court concluded the attorney’s fees were reasonable. Appellant’s appeal to this Court was dismissed. Appellee entered judgment against appellant and issued a writ of execution. The corporate property was purchased by appellee on June 15, 1978 at a sheriff’s sale.

On July 3, 1978, Mr. Tenny filed a mechanic’s lien against the corporate property and on July 14 he filed a petition to set aside the sheriff’s sale. On July 31, 1978, the sheriff’s deed to the corporate property was delivered to appellee. On December 5, 1978, the lower court ordered the striking of the mechanic’s lien and dismissed the petition to set aside the sheriff’s sale, finding that Mr. Tenny was not a party in interest to the corporate foreclosure. Mr. Tenny then appealed the lower court Orders striking the mechanic’s lien and dismissing his petition to set aside the sheriff’s sale of the corporate property; the Superior Court affirmed the Orders, in separate actions, and the Supreme Court refused allocatur.

On December 12, 1978 appellee filed a complaint and amended complaint to quiet title and obtain possession of the corporate property. Appellee brought the quiet title action against the appellant corporation and joined the individual appellants because they appeared to be in actual possession of part of the premises.

After a non-jury trial the lower court held appellee was entitled to a judgment for possession. Appellants’ exceptions were denied and appellants again appealed, and again the Superior Court affirmed the lower court. Our Court held the individuals did not have standing as parties in interest to prosecute the appeal because the issue concerning the mortgage, mortgage foreclosure, sheriff’s sale and quiet title action involved the corporate property. As to the issues raised by the corporation as appellant, our Court held collateral estoppel barred the corporation from relitigating the validity of the mortgage and dismissed the corporation’s challenges to the sheriff’s sale.

On January 7, 1985, appellee filed for a writ of possession for the corporate property. On February 4, 1985, appellants filed a petition for declaratory judgment and other relief. In their petition for a declaratory judgment, the appellants urged that the mortgage instrument involving the corporate property be declared void and all actions brought under it barred. Appellants first argued they had paid the mortgage debt on the corporate property, but that appellee had failed to enter satisfaction. Appellants next asserted appellee forged the mortgage and note by adding the corporation as obligor. Appellee answered the petition for declaratory judgment and then, on March 20, 1985, moved for a summary judgment arguing that the validity of the corporate mortgage had been determined in a prior action and the individual appellants had no standing to challenge the corporate mortgage foreclosure.

On July 8, 1985, the lower court granted appellee’s motion for summary judgment, and denied appellants’ requested relief. The court held that appellants had admitted the validity of the corporate mortgage in a prior action, the Superior Court had previously held the individual appellants lacked standing to challenge the foreclosure proceeding, and the corporate appellant was collaterally estopped from challenging the foreclosure. The Order granting summary judgment also dismissed appellants’ petition for declaratory and other relief. Exceptions to this Order were filed on July 15, 1985 and denied on August 30, 1985. Appellants now appeal the July 8 Order.

A motion for summary judgment can be granted only if the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court should accept as true all well-pleaded facts and admissions of record, but should resolve any doubts as to the existence of a genuine issue of material fact against the movant. Ammerman v. Lush, 236 Pa.Super. 231, 345 A.2d 271 (1975). On appeal from summary judgment, this Court must examine the record in the light most favorable to the non-movant, the appellants. Augostine v. Pa. National Mutual Casualty Ins. Co., 338 Pa.Super. 15, 487 A.2d 828 (1984).

Appellants contend the trial court erred in granting summary judgment because there are genuine issues of material fact. However, the factual disputes appellants contend exist are not material. Appellants argue there are two questions at issue: 1) whether the full amount due upon the corporate mortgage bond has been paid, and 2) whether the mortgage bond held and produced by the appellee is a forgery.

As pointed out by the lower court and by this Court in an earlier appeal, these questions are no longer proper subjects for litigation. Both questions were determined in the initial corporate mortgage foreclosure action when appellants “admitted the existence of the mortgage, the terms and conditions thereof, and their default thereunder”. Dauphin Deposit Trust, supra. Thus, in a prior action appellants conceded the validity of the mortgage. Appellants are now estopped from asserting the mortgage is somehow defective. See Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983).

Appellants’ assertion of lack of subject matter jurisdiction appears to stem from the contention that the mortgage is a forgery. Although appellants are correct in stating that subject matter jurisdiction is never waived, we find no support for the suggestion that any of the courts which have heard argument on this case have lacked subject matter jurisdiction.

We have examined the other contentions made by appellants, thoroughly reviewed the record and the Opinion of the lower court, and conclude the remaining issues raised by appellants are without merit. Appellants allege the lower court misunderstood their arguments and therefore misstated the issues and misapplied the law. This allegation is unsupportable.

Appellants also argue the lower court abused its discretion by failing to grant their request for a jury trial. Because there were no genuine issues regarding material facts and appellee was entitled to judgment as a matter of law, a jury trial was not an option for appellants.

While we have dealt with the issues presented by appellants as on the merits, we have done so only because appellant is pro se and we wish to make clear to him the insufficient legal basis for his claim. This matter should and must be quashed because the appeal was untimely. Although the Order of July 8, 1985 appears to have been a final Order, no appeal was taken at that time. Rather, exceptions were filed. See Reed v. Pa. National Mutual Casualty Insurance Co., 342 Pa.Super. 517, 493 A.2d 710 (1985) (appellant was not required to file exceptions to trial court’s Order granting judgment on the pleadings where trial court, in ruling that appellant’s action was barred by statute of limitations, did not go beyond the pleadings). And see Burkhart v. Brockway Glass Co., 352 Pa.Super. 204, 507 A.2d 844 (1986), involving an appeal from denial of exceptions to summary judgment); Hunter v. Employers, 347 Pa.Super. 227, 500 A.2d 490 (1985) (appeal from Order vacating summary judgment); Williams v. Dobransky, 304 Pa.Super. 483, 486-487 n. 4, 450 A.2d 1015, 1016-17 n. 4 (1982) (Re: exceptions to summary judgment). An appeal lies directly from a summary judgment.

We also note that in their docketing statement, appellants indicated that there are related matters pending. We note the pending appeal at Tenny, et ux. v. Mihalich, et ux., No. 710 Hbg., 1985, from an Order entered September 30, 1985 by Judge Sheely in an action to quiet title at No. 2621 Civil Division, 1984 in the Court of Common Pleas of Cumberland County.

Since we have reviewed the issues raised by the appellants as to their merits, which are the same issues involved in the pending action, although the form of the action is different, we would refer this Opinion to the panel of this Court which will review that matter for its consideration.

For the above-stated reasons, the appeal is quashed.

Appeal quashed.

      . On September 5, 1974, William B. and Shirley A. Tenny as individuals executed a mortgage for $100,000, also to Dauphin Deposit Trust Co. The September 5, 1974 mortgage is not a subject of this dispute, although its terms are tangentially related. See Footnote 2. Both mortgages were foreclosed simultaneously.

      . The corporate mortgage contained a provision for an attorney's commission of five per cent of the principal sum of the mortgage. The personal mortgage of September 5, 1974 contained a similar provison for fifteen per cent. Both mortgages were in default when appellee foreclosed. Appellants asserted the fifteen per cent and five per cent provisions were unreasonable.

      . Appellants contend 21 P.S. §§ 687 and 703 create a bar to actions and that this bar relates to the courts’ subject matter jurisdiction. However, § 687 provides that a bar to further action is created after "due proof” is offered that the full amount of the mortgage has been paid. The point is, again, that this issue is no longer a proper subject for litigation.