author: ROWLEY, Judge:

text:
    569 A.2d 951
    McKEESPORT BEER DISTRIBUTORS, INC., Appellant, v. ALL BRAND IMPORTERS, INC.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1989.
    Filed Jan. 10, 1990.
    Reargument Denied Feb. 26, 1990.

      William Stang, Pittsburgh, for appellant.
    Roslyn M. Litman, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   ROWLEY, Judge:

McKeesport Beer Distributors, Inc. (McKeesport), filed an action in equity to enjoin All Brand Importers, Inc. (ABI), from terminating McKeesport's distributing rights agreement with ABI and to recover damages for expenses and costs incurred as a result of ABI’s allegedly wrongful conduct. The trial court denied McKeesport’s request for a preliminary injunction and, following a hearing, entered a decree nisi in favor of ABI. McKeesport filed exceptions, which the trial court considered and denied. A final decree was entered and McKeesport filed this appeal. After careful review of the record and the arguments of counsel, we reverse the final decree of the trial court and remand for further proceedings.

McKeesport is a licensed importing distributor of beer, malt, and brewed beverages, pursuant to the Pennsylvania Liquor Code, 47 P.S. § 4-431. As an importing distributor, McKeesport distributes approximately 1.3 million cases of beer and 70,000 half barrels of beer per year to over 300 retailers. ABI, an exclusive distributor of certain brands of beer and malt beverages, is licensed to distribute its products in Pennsylvania pursuant to § 4-444 of the Liquor Code, 47 P.S. § 4-444. ABI and McKeesport entered into a distributing rights agreement on November 10, 1982, giving McKeesport the exclusive right to distribute ABI’s products in Westmoreland, Washington, Fayette, and Greene counties in their entirety, and in a portion of Allegheny County. The only written evidence of the agreement is a letter from ABI to the Pennsylvania Liquor Control Board (PLCB) dated November 10, 1982, filed pursuant to § 4-431 of the Liquor Code. The letter sets forth the boundaries of the territory assigned to McKeesport.

On October 7, 1985, ABI notified McKeesport by letter that it intended to terminate their agreement because McKeesport had made out-of-territory sales of ABI products. On October 12, 1985, McKeesport again sold an ABI product outside of its designated geographic territory. In a certified letter dated November 6, 1985, ABI notified McKeesport of its intention to terminate the agreement, giving 90 days written notice as required by § 4-492(19) of the Liquor Code, 47 P.S. § 4-492(19). On December 14, 1985, . McKeesport made another out-of-territory sale. There is no evidence that any subsequent out-of-territory sales occurred. During the period from March 1985 through December 14, 1985, there was a total of sixteen separate incidents of out-of-territory sales of ABI products by McKeesport.

In the instant case, the trial court found that the distributing rights agreement between ABI and McKeesport was memorialized by a letter sent from ABI to the PLCB and filed pursuant to the Liquor Code, that ABI provided no written contract and did not discuss the terms of the agreement with McKeesport, and that the only terms or conditions of the agreement between ABI and McKeesport were those set forth in the letter to the PLCB. The trial court held that ABI’s termination of the agreement was valid, as the out-of-territory sales constituted “good cause” for termination and they could not be “cured.”

Our scope of review of an adjudication in equity is well settled. The chancellor’s findings of fact are to be accorded the weight of a jury verdict and will not be reversed on appeal if the evidence is adequate to support them and if they are not founded upon erroneous inferences and deductions or errors of law. Roberts v. Estate of Barbagallo, 366 Pa.Super. 559, 567, 531 A.2d 1125, 1129-30 (1987). Conclusions of law, however, may be reviewed at the liberty of the appellate court. Presbytery of Beaver-Butler v. Middlesex, 507 Pa. 255, 266, 489 A.2d 1317, 1323 (1985), cert. denied, 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985). Facts supported by the record are binding. Id.

McKeesport challenges the trial court’s adjudication by asserting that good cause for the termination was lacking, inasmuch as the out-of-territory sales were “inadvertent” and constituted only .005% of its total volume of sales. In addition, McKeesport argues that because another ABI distributor was also making out-of-territory sales, but ABI did not terminate the other distributor’s agreement, ABI is barred from terminating McKeesport’s agreement in light of § 4-431(d)(l) of the Liquor Code, which requires that all distributing agreements of a particular distributor be substantially similar as to terms and conditions. Finally, appellant asserts that, as permitted under 47 P.S. § 4-492(19), it cured its improper behavior by stopping all out-of-territory sales within 90 days of the November 6, 1985 letter from ABI.

To evaluate the first of appellant’s claims, we note that §§ 4-431(d)(l) and 4-492(19) of the Liquor Code provide that distributing rights agreements shall not be terminated without good cause. “Good cause” is defined as follows:

“Good cause” shall mean the failure by any party to an agreement, without reasonable excuse or justification, to comply substantially with an essential, reasonable and commercially acceptable requirement imposed by the other party under the terms of an agreement.

47 P.S. § 4-431(d)(l). The trial court found that the only written evidence of the parties’ agreement was ABI’s letter of November 10, 1982 to the PLCB. That letter sets forth the geographical boundaries of McKeesport’s distributorship. The trial court also found, and it was undisputed, that on 16 occasions McKeesport sold ABI products outside the geographical limits of its distributorship. While we agree with McKeesport that the volume of the out-of-territory sales was minimal in comparison to the total volume of its sales, we find no error in the trial court’s conclusion that these sales, which continued over a period of 10 months, constituted good cause to terminate the agreement. The sales were a substantial violation of the commercially acceptable requirement and statutorily required condition in the parties’ agreement that McKeesport’s distributorship would be limited to a certain geographical area.

McKeesport also argues that ABI should be equitably estopped from terminating McKeesport’s agreement since ABI did not treat McKeesport the same as at least one other ABI distributor who not only engaged in out-of-territory sales, but who did so with the knowledge and consent of ABI in violation of § 4-431(d)(l) of the Code. Section 4-431(d)(l) provides in pertinent part as follows:

All distributing rights as hereinabove required shall be in writing, shall be equitable in their provisions and shall be substantially similar as to terms and conditions with all other distributing rights agreements between the manufacturer giving such agreement and its other importing distributors____

We agree with the trial court that because McKeesport failed to prove that ABI, by act or representation, had induced McKeesport to believe that its agreement would not be terminated if it engaged in out-of-territory sales, McKeesport’s claim of equitable estoppel was meritless. Curran v. Eberharter, 361 Pa.Super. 65, 521 A.2d 474 (1987), alloc, denied, 515 Pa. 613, 530 A.2d 867 (1987).

Finally, McKeesport contends that the trial court erred in not finding that ABI’s termination of the distribution agreement violated the Liquor Code’s requirement that an importing distributor be given ninety days in which to rectify an alleged deficiency. That requirement is set forth in § 4-492, as follows:

(19) [It shall be unlawful] [f]or any manufacturer or any officer, agent or representative of any manufacturer to modify, cancel, terminate, rescind or not renew, without good cause, any distributing rights agreement, and in no event shall any modification, cancellation, termination, rescission or nonrenewal of any distributing rights agreement become effective for at least ninety (90) days after written notice of such modification, cancellation, termination, rescission or intention not to renew has been served on the affected party and board by certified mail, return receipt requested, except by written consent of the parties to the agreement. The notice shall state all the reasons for the intended modification, termination, cancellation, rescission or nonrenewal. The distributor or importing distributor holding such agreement shall have ninety (90) days in which to rectify any claimed deficiency, or challenge the alleged cause.

47 P.S. § 4-492(19) (emphasis added). The trial court held that the 90-day-notice provision was not applicable to McKeesport because there was no way to “cure” the out-of-territory sales. Moreover, the court noted, McKeesport continued to engage in out-of-territory sales after the 90-day notice was given.

ABI expands upon the trial court’s conclusions by arguing on appeal that the effect of the disjunctive language in § 4-492(19) (“ninety (90) days in which to rectify any claimed deficiency, or challenge the alleged cause”) is to divide reasons for termination into two categories: 1) deficiencies, which can be rectified; and 2) other causes, which cannot be rectified, but can only be challenged. An exam-pie of a deficiency, ABI argues, is offered in § 4-492(19) itself in a subsequent reference to the failure of a distributor to have an adequate warehouse or adequate equipment. Such a condition, according to ABI, can be rectified because it can be put right in the future, whereas a violation of the Liquor Code such as out-of-territory sales cannot be rectified because it cannot be undone. ABI argues that McKeesport’s only choice in the latter situation was to challenge the assertion that any such violations had occurred, and since McKeesport admitted that it made the out-of-territory sales, it was without further recourse under § 4-492(19).

After carefully considering the trial court’s ruling and ABI’s arguments in support thereof, we are constrained to disagree with both the arguments and the ruling. In interpreting the 90-day notice provision of § 4-492(19), we are directed to ascertain and give effect to the intention of the General Assembly, and in doing so to presume that the General Assembly intended the entire statute to be effective and certain, and did not intend an absurd or unreasonable result. 1 Pa.C.S. §§ 1921(a), 1922(1), (2). In light of these precepts, we cannot accept the argument that the General Assembly, having otherwise addressed the rights and duties of importing distributors in considerable detail, intended to distinguish between curable and non-curable reasons for termination, but did so by implication only. It will produce a more certain and reasonable result, we think, to read the disjunctive provision of § 4-492(19) as giving the distributor 90 days in which to do one of two things: 1) if the reason for the intended termination is admitted, to rectify the deficiency; or 2) if the reason for the intended termination is disputed, to challenge the assertion of good cause.

Our interpretation is supported by the following paragraph, from which ABI draws its “examples” of a deficiency:

If the notice states as one of the reasons for the intended modification, cancellation, termination, rescission or renewal [sic] that the importing distributor or distributor’s equipment or warehouse requires major changes or additions, then if the distributor or importing distributor shall have taken some positive action to comply with the required changes or additions, the distributor or importing distributor shall have deemed [sic] to have complied with the deficiency as set forth in the notice. The notice provisions of this section shall not apply if the reason for termination, cancellation or nonrenewal is insolvency, assignment for the benefit of creditors, bankruptcy, liquidation, fraudulent conduct in its dealings with the manufacturer, revocation or suspension for more than a thirty (30) day period of the importing distributor or distributor license.

47 P.S. § 4-492(19). We do not read the first sentence of this paragraph as offering examples of a remediable deficiency, but rather as addressing situations in which it would be unreasonable to expect a deficiency to be remedied within 90 days. The second sentence of the paragraph specifies those situations in which the distributor will not be afforded the benefit of 90 days notice prior to termination. Read in its entirety, this paragraph sets forth two exceptions to the general application of the 90-day-notice provision. To infer that there is a third, implied exception-situations in which the distributor is allowed 90 days notice but can only challenge, not rectify, the reasons for termination — would violate the principle that where some things are specifically designated in a statute, things not so designated should be understood as having been omitted. Omodio v. Aetna Life and Casualty, 384 Pa.Super. 544, 545, 559 A.2d 570, 571 (1989).

Furthermore, we do not view McKeesport’s “deficiency” as being any less “curable” than others. In Matt Lamb & Sons, Inc. v. Christian Schmidt Brewing Company, 336 Pa.Super. 341, 485 A.2d 836 (1984), appellant Schmidt appealed the continuation of an injunction granted to appellee Lamb to prevent Schmidt’s attempted termination of Lamb’s distribution agreement. As “good cause” Schmidt had cited five alleged deficiencies: 1) failure to use best efforts in sales; 2) failure to make maximum use of product identification; 3) failure to cultivate all trade outlets in the assigned area; 4) failure to participate in Schmidt sales promotion activities; and 5) failure to maintain adequate sales records. This Court agreed with the chancellor’s finding that good cause was wanting because the five alleged deficiencies were, for various reasons, refuted by the record. With regard to the second of the alleged deficiencies just cited, this Court noted that “Lamb notified Schmidt two weeks after the letter listing the deficiencies [and giving 90 days notice] that all uniformed personnel now bore Schmidt identification.” Id., 336 Pa.Superior Ct. at 352 n. 4, 485 A.2d at 842 n. 4. Lamb’s failure in the past to have its drivers wear Schmidt identification on their uniforms could not be undone, but Lamb was able to rectify the deficiency by having its drivers begin to wear uniforms bearing Schmidt identification. It is similarly impossible for McKeesport to undo its past failure to confine its sales to its assigned territory, but it is possible for McKeesport to rectify the deficiency by ensuring that out-of-territory sales do not continue to occur.

Having determined that the deficiency was one which could be rectified, we turn to the question of whether the deficiency was in fact rectified. ABI asserts that it was not, inasmuch as McKeesport made at least two out-of-territory sales after being notified of the intended termination of the agreement. The trial court made the following findings of fact on this point:

9. ABI sent McKeesport a letter dated October 7, 1985, notifying McKeesport of its intent to terminate the distributing rights agreement because of McKeesport’s out-of-territory sales of ABI products.
10. Subsequently, ABI notified McKeesport by certified letter dated November 6, 1985, which letter was received by McKeesport, that it (ABI) was terminating the distributing rights agreement between the parties because McKeesport was selling ABI products outside the territory designated by ABI in the distributing rights agreement. Said termination was to be effective ninety (90) days after the date of this notice.
11. McKeesport made at least one (1) out-of-territory sale, in October, 1985, subsequent to the date of the October 7, 1985 letter from ABI. Further, McKeesport made at least one (1) out-of-territory sale in December of 1985, which was subsequent to the November 7th letter sent by ABI.

Finding of fact no. 8 lists these final sales as having occurred on October 12 and December 14, 1985. As these findings indicate, we have evidence of only one out-of-territory sale by McKeesport after its receipt of the 90-day notice contained in the second letter. As for the reasons why McKeesport was not immediately able to end its out-of-territory sales, a subsequent finding of fact is instructive:

13. Beer and Lottery Store and Mall Beverage [the stores to which the last two out-of-territory sales were made] are in McKeesport’s territory for most brands of beer, but not for ABI products. McKeesport sold approximately 300 to 600 cases of beer per week to the Beer and Lottery Store and approximately 300 to 600 cases of beer per week to Mall Beverage. During a twelve (12) to fourteen (14) month period from the end of 1984 to the end of 1985, McKeesport sold a total of 69 cases of ABI products to these two (2) outlets.

It is not unreasonable to assume, as McKeesport suggests in this appeal, that where distributorships overlap, customers such as Beer and Lottery Store and Mall Beverage might become confused as to which brands of beer could be bought from McKeesport and that McKeesport personnel might become confused as to which brands of beer could be sold to those stores. To remedy the problem, McKeesport would have to implement procedures to ensure that its employees would know precisely which brands could bé sold in a given location. McKeesport’s last out-of-territory sale occurred on December 14, 1985, 38 days after ABI gave notice of intended termination in 90 days. The PLCB agent who checked McKeesport’s records through March of 1986 uncovered no further out-of-territory sales. In light of the particular facts and circumstances of this case, we conclude that McKeesport effectively rectified within 90 days the deficiency cited by ABI and, therefore, that the trial court erred in concluding that ABI’s termination of the distributing rights agreement with McKeesport was valid.

ABI contends that if we determine that ABI’s termination of its distributing rights agreement with McKeesport was not valid under §§ 4-431(d) and 4-492(19) of the Liquor Code, as we have done, we must then consider ABI’s constitutional challenge to those statutory provisions. ABI argues that §§ 4-431(d) and 4-492(19) allow for discriminatory treatment between non-Pennsylvania manufacturers and distributors and Pennsylvania manufacturers and distributors, as the latter are not required to show good cause when terminating distribution agreements. Therefore, according to ABI, those provisions violate the Commerce Clause of the federal Constitution, the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution, and Section 32 of Article III of the Pennsylvania Constitution, which prohibits “special laws” regulating trade or manufacturing. After reviewing the record, however, we find no indication that notice has ever been given to the Attorney General of Pennsylvania, as is required by Pa.R.C.P. 235 and Pa.R.A.P. 521 of any party challenging the constitutionality of a statute in a matter in which the Commonwealth is not a party. Accordingly, we find that ABI has waived this issue. Faust v. Messinger, 345 Pa.Super. 155, 159, 497 A.2d 1351, 1352 (1985), appeal dismissed, 514 Pa. 286, 523 A.2d 741 (1987).

Final decree reversed and case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Although the trial court’s finding of fact no. 7 gives a figure of 7,000 half barrels rather than 70,000, the trial court's citation to the transcript suggests that the trial court was accepting the figure of 70,000 half barrels offered by Alfred Cecchini, former president of McKeesport, and that the figure of 7,000 half barrels was a typographical error.

      . Except for an out-of-territory sale in March 1985, evidence of these out-of-territory sales by McKeesport was uncovered by an agent of the PLCB who examined McKeesport’s invoices for the period from August 1985 through March 1986. N.T. at 186-87.

      . Our finding in this regard makes it unnecessary for us to consider the trial court’s rationale that there was good cause to terminate the agreement because the out-of-territory sales constituted a violation of § 4-431(b) of the Liquor Code. We note, however, that in the appropriate action brought by the Liquor Control Board against McKeesport for violation of § 4-431(b), McKeesport argued, as it does in the present case, that it had engaged in only an inadvertent or de minimus infraction. Commonwealth, Pennsylvania Liquor Control Board v. McKeesport Beer Distributor, Inc., 120 Pa.Cmwlth. 554, 549 A.2d 256 (1988). The Commonwealth Court reversed the trial court’s ruling that such an "unintentional minor misdelivery,” id. at 557, 549 A.2d at 257, should not be punished under the Liquor Code. Id. at 558, 549 A.2d at 258.

      . The exact nature of McKeesport’s disparate treatment claim, as presented in its brief on appeal, is unclear. Although the brief does not mention the disparate treatment claim in terms of an equitable estoppel argument, an equitable estoppel claim based on the disparate treatment theory was presented to and addressed by the trial court. Insofar as McKeesport is arguing on appeal that the alleged disparate treatment precludes a finding of good cause to terminate its agreement, we note simply that McKeesport offers no authority for the proposition that where a manufacturer should have terminated an importing distributor’s agreement for a specified cause, but did not, § 4 — 431(d)(1) bars the manufacturer from terminating the agreement of a second importing distributor on the basis of that same cause.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    569 A.2d 964
    COMMONWEALTH of Pennsylvania v. Curtis G. JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1989.
    Filed Feb. 13, 1990.

      Sondra R. Rodrigues, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order denying appellant’s motion to withdraw his plea of nolo contendere after imposition of sentence. For the reasons that follow, we affirm.

Appellant, Curtis G. Jackson, pled no contest to charges of rape, unlawful restraint and possessing an instrument of crime in connection with an incident that occurred on April 4, 1987. On that date, a woman was abducted and raped at knifepoint in the back seat of a rental automobile. The victim identified appellant as the perpetrator of these crimes. After accepting appellant’s plea, the lower court sentenced him to serve concurrent terms of incarceration of two and one-half (2V2) to five (5) years for unlawful restraint, two and one-half (2V2) to five (5) years for the possession of an instrument of crime, and ten (10) to twenty (20) years on the rape charge. After sentencing, appellant filed a motion to withdraw his plea along with a motion to modify sentence. The lower court denied both motions without a hearing.

Represented by new counsel in the instant timely appeal, appellant presents the following issues for our consideration: (1) whether the lower court committed abuse of discretion by denying, without a hearing, appellant’s motion to withdraw his plea where the court accepted the plea as voluntary, knowing and intelligent even though appellant was under the influence of potentially mind-altering drugs and his judgment may have been impaired; and (2) whether appellant received ineffective assistance of counsel where (a) he could not effectively communicate with trial counsel, and (b) trial counsel failed to file a motion to withdraw appellant’s plea before sentencing.

Appellant first argues that he should have been permitted to withdraw his nolo contendere plea after sentencing because it was not voluntary, knowing and intelligent as a result of the “potentially mind-altering drugs” he was taking. Withdrawal of a guilty plea after sentencing will only be permitted in this Commonwealth upon a showing of prejudice amounting to manifest injustice. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984); Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 723 (1989); Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), allocatur denied, 515 Pa. 620, 531 A.2d 428 (1987). Such a rule prevents potential abuse of the plea as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). A plea rises to the level of manifest injustice when it is entered into involuntarily, without understanding the nature of the charges, without knowledge of the factual basis of the charges, because of threats or coercion, because the prosecutor did not recommend a plea-bargained sentence, because the bargained-for sentence was not imposed, or because an accused proclaims his innocence. Id. An on-the-record inquiry is required to insure that the accused understands the crimes with which he is charged and the rights which are waived. Pa.R. Crim.P., Rule 319(a), 42 Pa.C.S.A.; Commonwealth v. Glaze, 366 Pa.Super. 517, 522, 531 A.2d 796, 798 (1987). As previously stated, appellate review of a nolo contendere plea is the same as for a guilty plea. Commonwealth v. Jackson, supra.

Appellant has not contended that the illness for which he was taking medication made him incompetent to enter a knowing, voluntary and intelligent plea. Rather, he argues that the medication he was taking interfered with his capabilities. The mere fact that a defendant was under medication at the time of his plea does not, of itself, entitle him to withdraw his plea. Commonwealth v. Hazen, 315 Pa.Super. 557, 462 A.2d 732 (1983). In Hazen, a panel of this court found that a sedated patient competently entered his plea where the lower court stated he showed no signs of being influenced by medication at the plea hearing, and where the colloquy transcript showed he cogently answered each question addressed to him. Id., 315 Pa.Superior Ct. at 563, 462 A.2d at 735.

Our inspection of the plea hearing transcript reveals that the trial court was completely informed regarding the nature of appellant’s alleged illness or condition. The trial court explicitly discussed the prescription drugs appellant was taking at the time he entered his plea. Appellant stated that he had no problems understanding the trial judge. At no time during the colloquy did appellant give any indication that he failed to understand the court’s explanation of the rights he was waiving by entering a nolo plea, nor does the record indicate that appellant was unable to follow the proceedings. Rather, appellant consistently responded in an appropriate manner to all questions posed by the lower court. We note that appellant has not pointed to a specific matter which he did not understand and which would have caused him to assert his right to a trial. Further, it is clear from the transcript that the trial judge was convinced appellant’s plea was valid. Appellánt simply has not demonstrated that a manifest injustice has occurred in the instant case. We therefore affirm on this issue.

Appellant next alleges that he received ineffective assistance of counsel because he was not able to effectively communicate with trial counsel, and because trial counsel never filed a motion to withdraw appellant’s plea. The burden of establishing ineffective assistance of counsel rests upon the appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant’s obligation is to demonstrate both that “the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987) (emphasis in original).

The initial inquiry in an ineffectiveness claim is always “whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.” Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). If this threshold is met, it must next be determined whether the particular course followed by counsel had no reasonable basis designed to effectuate his client’s interests. Id. The final inquiry is to establish the precise manner in which counsel’s commission or omission prejudiced the appellant. Id. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Id.; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Appellant bases his claim that he could not effectively communicate with his attorney on the fact that appellant told the lower court judge at the plea colloquy that he was unable to understand his attorney on that day. However, a fair review of the entirety of the exchange between the court and appellant, indicates that appellant could understand the proceedings and was able to communicate with the court and with counsel:

By the court:
Q. Are you today, right now, under the influence of any medicines, or drugs or [sic] of any kind?
A. I’m taking medication at the — at Holmesburg, affect my mood. [Sic.]
Q. What are you taking?
A. Haldol and Congentin.
Q. Prescribed by the doctors there?
A. Yes.
Q. Have you had any problems understanding me?
A. No.
Q. Do you know why you’re here?
A. Yes.
Q. Do you know what you’re charged with?
A. Rape.
Q. .Have you had any problems understanding your attorney today, Mr. Stewart, understanding what he’s talking about and things like that?
A. Yes.
Q. You have had problems?
A. No, well, you know, the decision wasn’t this sudden.
Q. I understand that. Have you had any problems talking about what’s going on?
A. No.

N.T. 2/8/88 at 3-4. Appellant demonstrated that he was cognizant of the import of the colloquy by questioning the judge about the circumstances under which a jury could be disqualified or discharged, and by requesting that the court halt the proceedings to permit a private consultation with trial counsel. Id. at 12 and 17. We see no indication in the colloquy transcript that appellant was unable to communicate with counsel on the day of the plea hearing. Nor has appellant offered sufficient additional or alternative facts to substantiate his assertion of ineffectiveness under the standard delineated by Commonwealth v. Durst and Commonwealth v. Pettus, supra.

The second part of appellant’s ineffectiveness claim is that trial counsel failed to file a motion to withdraw appellant’s plea before sentence was imposed. The trial court may, in its discretion, allow a defendant to withdraw a guilty plea prior to sentencing for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea. Commonwealth v. Shaffer, supra 498 Pa. at 345, 446 A.2d at 593. Such a request should be liberally allowed because a guilty plea involves the waiver of many constitutional rights. Id. at 346, 446 A.2d at 593. The existence of substantial prejudice to. the Commonwealth is the crucial factor in determining whether to allow a presentence plea withdrawal. Commonwealth v. McLaughlin, 469 Pa. 407, 412, 366 A.2d 238, 241 (1976).

Assuming, arguendo, that appellant has advanced a claim of arguable merit, he has still failed to demonstrate that counsel’s course of conduct had no reasonable basis designed to effectuate his client’s interests as required by Commonwealth v. Durst, supra. The evidence which the Commonwealth was prepared to present at trial was indeed formidable. The rape victim had positively identified appellant via photographic array and at a police line-up. Further, the victim remembered the license number of the vehicle in which she was raped. The automobile rental agent who conveyed this car to appellant was not only ready to testify to that fact, but also that appellant took possession of the vehicle prior to the time of the rape and did not return it until after the rape. Additionally, the Commonwealth had extensive medical evidence taken immediately following the complainant’s rape.

We note that appellant does not allege that he ever asked counsel about the possibility of withdrawing his plea prior to sentencing nor does he contend that he ever requested counsel to make such a motion. We therefore conclude that appellant has failed to demonstrate that counsel lacked a reasonable basis for his course of conduct and we uphold the action of the trial court on this issue.

Order affirmed.

      . Denial of a motion to withdraw a guilty plea post-sentence is appealable. See Pa.R.A.P., Rule 343, 42 Pa.C.S.A. and Pa.R.Crim.P., Rule 321, 42 Pa.C.S.A. Appellate review of a nolo contendere plea is treated in the same fashion as is a guilty plea. Commonwealth v. Jackson, 376 Pa.Super. 433, 546 A.2d 105 (1988).

      . 18 Pa.C.S.A. § 3121.

      . Id. § 2902.

      . Id. § 907.


author: HOFFMAN, Judge:

text:
    569 A.2d 968
    Michael D. MOFFATT, a Minor, by his Parents and Natural Guardians, David and Cynthia MOFFATT, and David and Cynthia Moffatt, in their own Right v. James BUANO. Appeal of Charles W. GARBETT.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed Feb. 6, 1990.

      Edwin J. Strassburger, Pittsburgh, for appellant.
    Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order below dated September 22, 1988 holding appellant in direct summary criminal contempt and fining him $2000.00. Appellant contends that the court erred in holding him in contempt under 42 Pa.C.S.A. §§ 4132(1) and (3). For the reasons that follow, we agree and reverse the order below.

On September 22, 1988, appellant, Charles W. Garbett, Esquire, was called to the chambers of the Honorable Glenn McCracken Jr., President Judge of Lawrence County. Appellant was unaware of the reason he had been summoned, as, at that time, he had no matters pending before President Judge McCracken. Appellant appeared at chambers, and asked the purpose of the conference. He was advised that the purpose would be fully explained at a conference in the courtroom. In the hallway, on the way to the courtroom, the court administrator heard appellant call President Judge McCracken an “asshole.” President Judge McCracken did not hear the comment in the hallway. Upon entering the courtroom, President Judge McCracken ordered appellant to repeat his comment, and appellant repeated the remark. President Judge McCracken then held appellant in contempt of court and ordered appellant committed to the Lawrence County Jail. Appellant questioned President Judge McCracken's impartiality, and requested a hearing before another judge, and was refused. Appellant was given an opportunity to purge the contempt by apologizing. Appellant “apologized,” by saying, “I was instructed to repeat the remark that I made. I repeated that remark. If it was offensive to Mr. and Mrs. Moffatt [plaintiffs in the underlying action] I certainly apologize.” N.T. September 22, 1988 at 4. Because appellant did not apologize directly to the court, the court continued to sentence him to jail. Appellant again requested a hearing before another judge and again was refused. The court immediately proceeded to hold a contempt hearing and held appellant in direct summary criminal contempt. Appellant was ordered to pay a fine of $2000.00. The order was reduced to writing and filed on September 29, 1988. This appeal followed.

Trial courts have an inherent power to impose summary punishment for contempt of court. That power however is restricted by 42 Pa.C.S.A. § 4132. In an opinion, filed May 30, 1989, the court explained that it held appellant in contempt based on 42 Pa.C.S.A. § 4132(1) and § 4132(3). These sections provide in relevant part:

The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
* # * * * *
(3) The misbehavior of any person in the presence of the court thereby obstructing the administration of justice.

Id. §§ 4132(1), (3). Appellant argues that the court erred in holding him in contempt under (1) § 4132(1) because that section does not apply to attorneys and (2) § 4132(3) because he did not possess the requisite intent to obstruct justice nor did an obstruction of justice occur.

In its opinion, the trial court held that appellant was properly held in contempt under either of the sections cited above. Appellant first argues that he could not properly be held in contempt under subsection (1) because he was not an “officer” of the court for purposes of the section. Prior to 1981, there had been conflicting authority on whether attorneys are officers of the court for purposes of this section. However, in Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981) our Supreme Court noted that:

the great weight of authority, both state and federal, supports the construction of our more recent cases that attorneys do not fall within the purview of subsection (1).

Id. at 495 Pa. 632 n. 7, 435 A.2d at 583 (1981) (citing cases) (construing prior § 4131(1)) (emphasis added). Accordingly, the court’s contempt order cannot be upheld on § 4132(1).

Appellant next argues that the trial court erred in holding him in contempt under § 4132(3) because he did not possess the requisite intent to obstruct the judicial process nor did an obstruction of justice occur. Our Supreme Court consistently has held that:

subsection 3 requires proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the court, (3) committed with intent to obstruct the proceedings, which (4) obstructs the administration of justice. Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981); Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981); Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981); Matter of Nugent, 494 Pa. 2, 427 A.2d 1154 (1980); Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980) (plurality); In re Cogan, 485 Pa. 273, 401 A.2d 1142 (1979); Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978) (plurality); In re Johnson, 467 Pa. 552, 359 A.2d 739 (1976). Moreover, the Pennsylvania summary contempt statute has been interpreted to require that in order “[f]or conduct to constitute an obstruction of the administration of justice, it must significantly disrupt judicial proceedings.” Matter of Campolongo, supra 495 Pa. at 633, 435 A.2d at 584 and cases cited therein.

Commonwealth v. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983) (construing prior section 42 Pa.C.S.A. § 4131(3)).

The contempt order in the case at bar was based entirely on appellant’s reference to the judge as an “asshole.” Appellant initially made the comment in the hallway. There is no evidence that appellant made this remark with the intent to obstruct justice. Appellant made the remark in the hallway, and although the remark was made in the court’s presence, we note that the court was unaware of the remark. See N.T. September 22, 1988 at 5. Moreover the remark clearly did not obstruct justice because court was not in session, nor were any judicial proceedings in progress.

Appellant, of course, repeated the remark, on the record, in the courtroom. However, when appellant repeated the remark, he did so only after the court ordered him to do so. See Id. at 1. Again, there is no evidence that the remark was made with the intent of obstructing justice or that it actually obstructed justice. Although President Judge McCracken understandably may have taken offense at appellant’s remark, upon learning of it, personal offense does not raise an improper comment to the level necessary to hold one in criminal contempt. As the Honorable Donald E. Wieand has noted:

[m]ere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court. In the Matter of Campolongo, supra 495 Pa. at 633, 435 A.2d at 584; Commonwealth v. Garrison, 478 Pa. 356, 373, 386 A.2d 971, 979 (1978). Inappropriate and even ill-mannered conduct which does not obstruct or delay the trial “falls short of that misbehavior which may be punished under [42 Pa.C.S. § 4131(3)].” Commonwealth v. Rubright, supra 489 Pa. at 364, 414 A.2d at 110.

Commonwealth v. Restifo, 339 Pa.Super. 225, 229, 488 A.2d 633, 635 (1985). Moreover, the United States Supreme Court stated:

Judges are supposed to be [persons] of fortitude, able to thrive in a hearty climate. Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.

In the Matter of Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, 711 (1972). Here appellant’s offensive references to the judge were childish and unprofessional. However, because the references did not obstruct the administration of justice, the references clearly were not such as to justify a finding of direct summary criminal contempt.

Because the record does not support a conviction for contempt, we reverse the order of the trial court and discharge appellant.

Order reversed. Appellant discharged.

      . Appellant also contends that he was deprived of his constitutional right to be judged by a neutral and dispassionate judge as required by Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Because of our disposition of appellant’s first claim, we need not address this issue.

        . In the order, the court did not impose a term of imprisonment. In its opinion, the court noted that a term of imprisonment would have been inappropriate because a jail sentence is only for contempt committed in open court. See 42 Pa.C.S.A. § 4133.

      . Current § 4132 was previously found at 42 Pa.C.S.A. § 4131. The section was renumbered on December 20, 1982.


text:
    569 A.2d 971
    Albert R. McCORMICK, Jr., and Brian J. McCormick and Stephen S. McCormick, a Minor by His Parent and Natural Guardian, Mary J. McCormick, Appellants, v. NORTHEASTERN BANK OF PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Submitted May 20, 1987.
    Filed Feb. 15, 1990.

      John Molnar, Bangor, for appellants.
    Charles P. Eyer, Stroudsburg, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order dated September 22, 1986, dismissing appellants’ motion for post-trial relief. The motion for relief was filed after the trial court dismissed appellant’s wrongful garnishment action against appellee, Northeastern Bank of Pennsylvania (hereinafter “Northeastern”). Appellants contend that the trial court erred in dismissing their action because the court erroneously required them to show that Northeastern knowingly garnished their bank accounts in order for them to prove that Northeastern violated their right to procedural due process. For the following reasons we affirm.

The relevant facts are as follows: On August 15, 1974, Pulmac, Inc. (hereinafter “Pulmac”), by Walter E. Olenick, Sr., President, executed a judgment note in the amount of fifty-five thousand dollars ($55,000) to be payable to the order of appellants Albert R. McCormick, Jr., Brian J. McCormick and Stephen S. McCormick. The appellants were ages 20, 15 and 8, respectively, at the time of the execution of the note. The consideration for the note was the sale of corporate shares that were partially owned by appellants’ mother. No monetary payments passed between appellants and their mother for the judgment note. Walter Olenick, Sr., is the designated trustee for appellants. On or about February 25, 1977, Northeastern Bank of Pennsylvania attempted to execute a judgment against appellants’ parents by seeking to garnish $10,622.24 from Pulmac. On or about June 3,1977, Northeastern sought to garnish another $11,298.48 from Pulmac. Pursuant to the first garnishment, Pulmac made payments from appellants’ funds to Northeastern that totalled $10,317.75 between November, 1977 and June, 1979. At the time the payments were made, Olenick, in addition to being appellants' trustee, was the legal representative of both Pulmac and appellants’ parents.

On April 21, 1980, appellants filed the instant action in trespass against Northeastern, alleging wrongful garnishment of certain of their bank accounts to pay their parents’ judgment debts. On May 30, 1984, the Court of Common Pleas of Monroe County issued an order stating that, by agreement of the parties, the case would be tried on the basis of stipulated facts, interrogatories and depositions. The stipulation of facts was filed on February 26,1985. On February 12, 1986, after hearing argument in the case, and considering the stipulation of facts, interrogatories and depositions, the trial court entered an opinion and order dismissing appellants’ action. In making its decision, the court reasoned that Northeastern could not be liable because the evidence failed to establish that Northeastern was aware that its actions had resulted in the garnishment of funds that were not held in its judgment debtor’s name. Appellants timely filed a motion for post-trial relief on February 24,1986, requesting that the trial court reconsider its decision. The trial court entered an order dismissing appellants’ motion for post-trial relief on September 22, 1986. Appellants filed a notice of appeal from that order to Superior Court on October 17, 1986. Initially, we quashed the appeal because we found it to be “an appeal from the lower court’s granting of a preliminary objection and dismissing complaint.” We granted reconsideration sua sponte and quashed again because the appeal was untimely. Our Supreme Court granted appellants’ petition for allowance of appeal, found that the appeal was timely, and remanded the case to us for disposition on the merits.

Appellants’ claim below was based upon their allegation that Northeastern wrongfully garnished their accounts because appellants were not properly notified prior to the garnishment. On appeal, they contend that the trial court erroneously required them to show that Northeastern had knowingly garnished their bank accounts, in order to prove that Northeastern’s garnishment was wrongful. Appellants thus suggest that we should hold that a garnishor violates a party’s right to due process, and therefore becomes liable for wrongful garnishment, regardless of whether he is aware that his attempt to execute a judgment has resulted in the seizure of funds from someone other than his judgment debtor. As a general matter, of course, due process requires that a party who is to be deprived of property in a legal action have notice of the action and the opportunity to air his views before that action takes place. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Comm. v. Thompson, 444 Pa. 312, 281 A.2d 856 (1971). Our research, however, reveals no cases, and appellants have cited none, that require a garnishor to give notice to a garnishee of whose existence he is unaware. Indeed, the only authority cited by appellants in support of their claim that appellee had a duty to notify them of its garnishment of their funds is the plurality opinion in Gulf Mortg. & Realty Inv. v. Alten, 286 Pa.Super. 253, 428 A.2d 978 (1981). We agree with the trial court that Gulf is readily distinguishable. In Gulf a creditor who had obtained a judgment sought to garnish accounts that were in the name of both the creditor and his wife. The wife challenged the garnishment by filing a petition to quash the writ because she had never been notified or had a hearing. The trial court dismissed the petition. On appeal, however, we held that the seizure without notice or hearing violated the wife’s due process rights. In this case, the trial court distinguished Gulf on the ground that there was no evidence that Northeastern knew it was garnishing appellants’ funds instead of those of the party against whom it had obtained judgment. The trial court thus properly recognized that Gulf does not support the proposition that a judgment creditor is liable regardless of its knowledge that it is garnishing a person’s funds.

The question whether a garnishor must have knowledge that the funds of a person other than its judgment debtor have been used to satisfy the garnishment in order to be liable for wrongful garnishment is one of first impression in Pennsylvania. Examination of the general principles and policies underlying tort liability convinces us that the trial court’s decision not to impose liability absent such knowledge should be upheld. As noted by Professors Prosser and Keeton:

The common thread woven into all torts is the idea of unreasonable interference with the interests of others____ The tort-feasor is usually held liable for acting with an intention that the law treats as unjustified, or acting in a way that departs from a reasonable standard of care____
Society has a two-fold interest in such a case. First, society has an interest in having any single dispute between individuals resolved fairly and promptly. Second, society has an interest in the outcome because of the system of precedent on which the entire common law is based____ There is good reason, therefore, to make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future____
The prophylactic factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm. Not infrequently one reason for imposing liability is the deliberate purpose of providing that incentive.

W. Prosser, W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on The Law of Torts 6-25 (W. Keeton 5th ed. 1984) [hereinafter “Prosser and Keeton ”].

Here, a close examination of the record and stipulated facts reveals that the conduct of Northeastern is not the sort of unreasonable conduct that could be discouraged by the imposition of tort liability. There is no evidence that the procedures employed by Northeastern in seeking to satisfy its judgment against appellants’ parents were improper, or that Northeastern was aware or should have been aware that the funds it received were appellants’ property. Specifically, the record reveals that, after obtaining its judgment against appellants’ parents, Northeastern properly served Pulmac with interrogatories pursuant to Pa.R.C.P. 3144, in order to determine whether Pulmac possessed funds in the name of appellants’ parents. Olenick’s failure to respond to those interrogatories within twenty days after service resulted in Pulmac being garnished under Pa.R.C.P. 3146(a)(1), which is invoked by the garnishee’s failure to respond to interrogatories. The Rule places the burden on the garnishee to prove that it does not possess any of the judgment debtor’s assets. Olenick should have responded to the interrogatories and asserted that he was not in possession of any funds belonging to appellants’ parents. His failure to do so resulted in Pulmac’s being garnished as if it was in possession of funds belonging to appellants’ parents, Northeastern’s judgment debtors. The decision to satisfy that garnishment out of appellants’ funds was Olenick’s alone, and there is no evidence that Northeastern was aware that the funds were taken from accounts other than those controlled by appellants’ parents. Northeastern, which was unaware of the 1974 alleged conveyance of the subject funds to appellants, neither sought the funds in appellants’ names nor directed Olenick to pay it from anything other than funds held by Olenick on behalf of appellants’ parents. Indeed, Northeastern’s only action relevant to appellants was the filing of interrogatories to determine whether the funds Pulmac held belonged to its judgment debtor. That action was proper under the circumstances, and certainly does not represent a departure from a reasonable standard of care.

We find further support for our conclusion that Northeastern’s conduct was not tortious by noting that a rule that requires a judgment creditor to be aware that the funds from which his garnishment is satisfied are not those of his judgment creditor before imposing liability for wrongful garnishment is consistent with the “prophylactic” purpose of tort law. As noted above, the law of torts is designed to prevent prospective tortfeasors from acting unreasonably in violation of others’ rights. This idea is often expressed in terms of a “duty of care” owed to the person whose rights the tortfeasor is alleged to have violated. See generally, Prosser and Keeton, supra § 53 at 356-58. In order for the law to reform or prevent such unreasonable conduct, it follows that the duty the law imposes itself must be reasonable and foreseeable. In this case, however, a rule imposing liability when a judgment creditor is unaware of the identity of the party whose funds are used by a garnishee to satisfy judgment would be unworkable. Appellants in the instant case were aggrieved not when Northeastern sought garnishment, but when their representative, Olenick, misappropriated their property to satisfy the judgment. Northeastern had no control over the actions of Olenick. To hold Northeastern responsible for the actions of appellants’ own representative, when Northeastern does not have the ability to reform his conduct, would be to impose a form of strict liability. This we are unprepared to do.

In summary, we hold that a garnishment creditor cannot be liable for wrongful garnishment if the creditor followed the proper procedure for obtaining the garnishment, and was unaware that the funds it received in satisfaction of the garnishment belonged to someone other than its judgment debtor. Here, Northeastern did not violate a reasonable standard of care by intentionally disregarding the issue of who owned the funds in question, because Northeastern served Olenick with interrogatories in an effort to determine whose funds he held. Northeastern was unaware that the funds it garnished belonged to anyone other than its judgment debtor, and was not responsible for Olenick’s actions in utilizing appellants’ funds to satisfy the garnishment. On such a record, we agree with the trial court that Northeastern cannot be liable to appellants for wrongful garnishment.

For the above-stated reasons, we affirm the order of the trial court.

Order affirmed.

JOHNSON, J., concurs in the result.

      . The parties stipulated that no determination would be made regarding whether this arrangement was a fraudulent conveyance.

      . The judgment arose from a lawsuit based upon debts previously owed Northeastern by appellants’ parents.

      . Specifically, our Supreme Court noted that, as a general matter: “it is the order of the trial court disposing of a motion for post-trial relief that has been reduced to judgment which comprises the final order in the case from which an appeal must be filed within thirty days." The Court also noted that "[a]lthough ... the decision of the trial court dismissing appellants' motion for post-trial relief was not reduced to judgment by praecipe of either party as required by Pa.R.A.P. 301, in the interests of judicial economy, we shall ‘regard as done that which should have been done.’ ” 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989) (citation omitted).

      . We should note that the duty to notify that appellants ask us to impose does not have support in the Rules of Civil Procedure. Under the Rules governing garnishment activities, a garnishor needs only to notify the garnishee and garnishment defendants. See Pa.R.C.P. 3108, 3111. Because Northeastern sought the property of appellants’ parents, appellants were not entitled to notice at all under the Rules.

      . The panel opinion in Gulf was authored by Judge Hester. Judges Spaeth and Cavanaugh concurred in the result.

      . The trial court also distinguished this case from Gulf because appellants here waited two years and five months from the beginning of their injury before bringing their suit, whereas appellant in Gulf brought her action promptly. Based upon this distinction mentioned by the trial court, appellants now suggest that the trial court dismissed their action in part because it was untimely. Appellants then argue that such a dismissal would clearly be improper because the issue of timeliness is an affirmative defense that appellees waived. Although the trial court distinguished this case from Gulf on those grounds, appellants overemphasize the role the trial court's determination regarding timeliness played in its decision. The court clearly based its decision on its determination that Northeastern had no duty to notify appellants of its garnishment of their funds because Northeastern was unaware that the funds held by Pulmac belonged to appellants. For reasons set out later in this opinion, we agree with that distinction.

      . The fact that appellants cannot recover against the garnishor does not, of course, affect their potential claims against other parties. In particular, we note that appellants may have had a cause of action against their trustee. Cf. Garden City Shopping Center v. Super Gen. Stores, 29 Pa.D & C 3d 319, 335 (C.P.Allegheny Co.1982) (knowing garnishee releasing funds to garnishor ignorant of potential third party claims to funds may be liable to third party claimant).


author: TAMILIA, Judge:

text:
    569 A.2d 975
    Pennie A. EACHES, Appellant, v. Kenneth STEIGERWALT. COMMONWEALTH of Pennsylvania v. Eric ORTIZ. Appeal of Zoraida ACEVEDO.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed Feb. 15, 1990.

      Keylee L. Swalm, Allentown, for appellants.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

The instant cases have been consolidated on appeal as they each contain the identical controlling issue. This Court will address them together, after first setting forth their individual procedural histories.

Eaches v. Steigerwalt

On November 10, 1987, appellant Pennie Eaches filed a petition for relief pursuant to the Protection From Abuse Act against Kenneth Steigerwalt. Although required to do so by the Act, appellant did not file an affidavit stating she did not have funds available to pay the costs of filing and service. Notwithstanding this defect, appellant’s petition was accepted for filing and service without payment of the $40.50 filing fee, in what appellant claims was routine practice at the time in Lehigh County for persons seeking to proceed in forma pauperis in protection from abuse actions. Following an ex parte hearing the same day, the court entered a temporary Order directing Steigerwalt to refrain from abusing, harassing or threatening appellant, and ejecting him from her premises. A full hearing was scheduled for November 17, 1987, and personal service of the temporary Order and notice of hearing was made on appellant by the Lehigh County sheriff on November 12, 1987. Appellant did not appear for the scheduled final hearing November 17, 1987, and her counsel requested a continuance, which was granted, extending the hearing and the temporary Order until November 24, 1987. Appellant again did not appear on November 24, 1987, and her counsel requested the matter be dismissed; accordingly, the court entered a verbal Order dismissing appellant’s petition under the Protection From Abuse Act.

On December 10, 1987, the court entered a written Order dismissing appellant’s petition, and further ordering any unpaid filing fees and sheriff’s costs be paid by Lehigh Valley Legal Services, Inc., appellant’s counsel. Following counsel’s motion to reconsider, the court entered a new Order on January 6, 1988, directing any fees and costs be paid by appellant.

Commonwealth v. Ortiz; Appeal of Acevedo

On December 8, 1987, appellant Zoraida Acevedo filed a petition for relief under the Protection from Abuse Act against her husband, Eric Ortiz, without payment of costs, on the basis of her averment in the petition itself that she did not have the funds available to pay the costs of filing and service. Nonetheless, as with appellant Eaches, the petition was accepted for filing and service without payment of the $40.50 filing fee. Following an ex parte hearing on the same day, the court entered a temporary Order against Ortiz, directing him to refrain from abusing, harassing or threatening appellant, and ejecting him from her premises. A full hearing was scheduled for December 15, 1987, and personal service of the temporary Order and notice of hearing was made on appellant by the Lehigh County sheriff on December 11, 1987. On December 13, 1987, the Allentown police, at appellant’s request, executed a criminal complaint for indirect criminal contempt before a district justice, alleging Ortiz violated the temporary Order. Following a series of continuances, the final hearing was entered against Ortiz, and he was sentenced for criminal contempt, based upon his guilty plea. On February 7, 1988, a second criminal complaint for indirect criminal contempt was executed before a district justice against Ortiz. Ortiz was arrested and arraigned on February 7, 1988, and given personal, verbal notification of the contempt hearing scheduled for February 11, 1988.

Neither appellant nor Ortiz appeared at that hearing, whereupon the court dismissed the complaint, directing costs be paid by appellant. On February 22,1988, appellant filed a motion to reconsider averring neither she nor her counsel had received notice of the February 11, 1988 hearing, and requesting any fees and costs be imposed on Ortiz, who also did not appear at the February 11 hearing. On March 10, the court entered an Order directing that costs be borne equally by appellant and Ortiz.

DISCUSSION

The instant cases present this Court with a single issue: may costs be assessed against a litigant for failure to appear at a protection from abuse hearing, where the litigant’s very failure to appear precludes the court from holding a hearing to determine the litigant’s ability to pay? We agree with the thorough and well-reasoned analysis of the hearing court, and “find that the law, equity, as well as policy considerations, including the efficiency of judicial administration, each require a ‘yes’ answer to the question presented.” (Slip Op., Gardner, J., 9/14/89, p. 13.)

It need not be stated at great length, for it is patently evident, how the failure of appellants to appear'.for their hearings needlessly burdened the judicial system, and as a result, tax payers, making repayment of a portion of these costs appropriate. “In these days of burgeoning case loads and systemic delays, it is a shameful waste of a precious and limited judicial resource — that is, time — to demand and reserve a slot of judicial time, to the exclusion of other litigants, and then fail to keep the appointment.” (Slip Op. at 14.)

In the absence of any specific statutory mandate to the contrary, and as we have discovered no case law in support of appellants’ position, we find the court acted within its discretion in imposing costs upon appellants for failing to pursue the litigation they instituted, both in the cases at bar and as a general matter of justice.

We must note the distinction being made in this case, for which purpose we again cite with approval the Opinion of the hearing court:

Penalizing a complainant by imposition of costs for failing to pursue her action in an appropriate fashion should not be confused with the separate concept of excusing an indigent complainant from payment of the filing and service costs necessary to institute the action. The former imposes costs; the latter excuses costs. The former penalizes and deters complainant for failing to act appropriately as a litigant; the latter benefits her. The former is in the discretion of the court; the latter is obligatory upon the court if complainant sustains her burden of establishing her entitlement thereto. Finally, as we have seen, the former is based upon general statutory language, equitable principles and appellate authority, none of which requires a hearing. The latter is based upon a specific section of the Protection From Abuse Act, which requires a hearing.
The Protection From Abuse Act was enacted in 1976 and amended in 1978 and 1988. The 1978 amendment to section 10184(b) of the act was in effect at the time complainants failed to appear for their hearings on November 24, 1987 and February 11, 1988, respectively. At those times, this section provided as follows:
(b) If the plaintiff files an affidavit stating that he or she does not have funds available to pay the costs of filing and service, the petition shall be filed and service shall be made without payment of costs and leave of court to proceed in forma pauperis shall not be required. When the petition is filed without payment of costs, the court shall determine at the hearing on the petition if the plaintiff is indigent. If the court finds that the plaintiff is not indigent the court may order the plaintiff to pay the court costs.
This indigency hearing requirement never comes into play under the facts of the two cases before this court. Because we proceeded to assess costs in these matters under the costs-as-penalty concept, not under section 10184(b), no hearing was required to ascertain complainants’ ability to pay. Indeed, if such a hearing were required as a prerequisite for the imposition of costs in this situation, a court could never penalize a complainant for failing to appear at a hearing, because no hearing could be held on this issue in her absence.

(Slip Op. at pp. 18-20; emphasis in original; footnotes omitted.)

As we find the court properly imposed costs against appellants, an application of section 10184(b) of the Protection From Abuse Act prior to assessing costs was unnecessary, and this Court need not discuss further that aspect of appellants’ claim.

This Court is not unsympathetic to the plight of complainants who are victims of abuse, have limited financial resources and, as appellants argue, are fearful or lack the continuing courage to pursue legal actions they have instituted.' However, such sympathy for one group of persons does not outweigh our concern for the judicial system as a whole, nor does it stir within us the desire to encumber the courts with additional processes unimagined by the legislature in enacting the Protection Prom Abuse Act. Appellants had the option whether to institute protection proceedings, which they did without costs. That they later chose not to go forward was also their option, and the court’s imposition of a portion of the costs incurred was neither paradoxical nor an abuse of discretion.

Orders affirmed.

      . Act of October 7, 1976, P.L. 1090, No. 218, § 1 et seq., 35 Pa.S. § 10181 et seq.

      . 35 Pa.S. § 10184(b), as amended June 23, 1978, P.L. 513, No. 81, § 1; April 20, 1988, P.L. 355, No. 56, § 3.

      . Instead appellant averred in the petition itself she was unemployed, receiving public assistance in the amount of $450 per month, and did not have the funds available to pay filing or service costs.


author: POPOVICH, Judge:

text:
    569 A.2d 1373
    Edmund J. BROKANS, Administrator of the Estate of Baby Girl Smith, Deceased, Appellant, v. Joseph L. MELNICK, M.D. West Park Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued June 21, 1989.
    Filed Dec. 20, 1989.
    Reargument Denied Feb. 28, 1990.

      Gerry Woods, Philadelphia, for appellant.
    James M. Penny, Jr., Philadelphia, for Melnick, appellee. Robert E. Hall, Philadelphia, for West Park Hosp., appellee.
    Before McEWEN, POPOVICH and MELINSON, JJ.
   POPOVICH, Judge:

Herein, our Court is presented with the opportunity to determine whether a total stranger to a decedent and his or her heirs can qualify as a “fit person” who is entitled to be granted letters of administration pursuant to 20 Pa.C.S.A. § 3155(b)(5). After lengthy consideration of the facts and relevant case law, we are convinced that we are entirely within our authority in holding that the Register of Wills’ act of granting letters of administration to appellant was void ab initio, and, consequently, Administrator Edmund J. Brokans lacked the capacity to sue on behalf of the estate.

The facts of this case merit in depth recitation. In West Park Hospital, on September 12, 1984, Dr. Joseph L. Mel-nick, M.D. performed an elective abortion upon Tina Marie Smith who was then thirteen years of age. Attorney Brokans alleges that, at the time the abortion was performed, Tina Marie was within the third trimester of her pregnancy. Appellant further contends that the fetus, known as Baby Girl Smith, was delivered viable. In fact, he contends that the fetus survived outside the womb for approximately one and one-half hours after the abortion and that Dr. Melnick and the Hospital’s staff failed to provide Baby Girl Smith with proper medical care.

Judged from the investigative log of the Philadelphia Medical Examiner, these facts gave rise to a cause celebre in the Philadelphia area. The log is replete with requests from strangers who wanted to be responsible for the burial or cremation of the body, including a request from appellant on September 21, 1984.

On September 11, 1986, one day shy of the second anniversary of Baby Girl Smith’s death, Attorney Brokans designated himself as administrator of the baby’s estate and instituted this action by writ of summons. On the same day, Attorney Brokans petitioned the Register of Wills of Philadelphia County for the grant of letters of administration for the estate of Baby Girl Smith. In his petition for letters of administration, Attorney Brokans stated:

Petitioner after a proper search has ascertained that decedent left no will and was survived by the following spouse and/or heir(s): None are known, except for the mother, an unidentified juvenile whose interests are adverse to those of the estate and who renounced any claim to the decedent’s body at the time of burial. Two years have passed and no other person has applied to administer the estate. Petitioner is a member of the Pa. Bar (Atty ID # 34373), is a fit person to administer the estate, has no interest adverse to the estate, seeks no compensation and seeks appointment in order to preserve and pursue any claims by the estate before the statute of limitations expires. A Death Certificate and Medical Examiner’s summary have been requested and will be filed when received. As evidence of death, attached are copies of news clippings.

Based on the foregoing, letters of administration were granted to Attorney Brokans on September 12, 1986. On July 29 and July 30, 1989, ten months after being granted letters of administration, Attorney Brokans, pursuant to Pa.R.C.P. 2205, notified Willie Mae Smith, the mother and legal guardian of Tina Marie, that wrongful death and survival actions had been filed on behalf of her daughter and the father of Baby Girl Smith. The record does not indicate whether notice was ever given to the named father, Anthony Troy. To date, the minor mother, grandmother and father of Baby Girl Smith have taken no action regarding the administration of the child’s estate.

On June 26, 1987, Attorney Brokans filed his original complaint against Dr. Melnick and West Park Hospital, alleging negligence in the failure of Dr. Melnick and the West Park staff to provide proper medical care to the viable fetus. In response, Dr. Melnick and West Park Hospital filed preliminary objections which, inter alia, challenged Attorney Brokans capacity to sue on behalf of the estate under Pa.R.C.P. 1017(b)(5). Attorney Brokans then filed an amended complaint to which similar preliminary objections were again filed.

In response to the objections, Attorney Brokans contended not only that he was the proper party to sue but also that appellees lacked standing to challenge his capacity to sue. Further, he argued that the Common Pleas Court was without jurisdiction to set aside his appointment as administrator because granting of letters of administration is a judicial act which may not be set aside in a collateral proceeding.

After many months of legal maneuvering, the lower court, by order dated December 6,1988, granted the preliminary objections of West Park Hospital and dismissed Attorney Brokans’ amended complaint against both defendants. The court determined that Attorney Brokans was not the proper party to bring suit under the Wrongful Death and Survivor Acts, 42 Pa.C.S.A. §§ 8301, 8302, rather Tina Marie Smith, mother of the decedent, was the proper plaintiff. Specifically, the lower court stated:

That the mother of the decedent has shown no interest in this case must be accepted as a fact for the purposes of the motions before us. In fact, in his petition for grant of Letters of Administration, Plaintiff averred that after a proper search he ascertained that the decedent left no will and was survived only by a mother whose interests were adverse to those of the estate. Since she is the Estate under the Statute, her interests cannot be adverse to anyone. Moreover, the petition itself does not identify the mother or any heirs of the decedent. Nor, at no time before filing his petition for grant of Letters of Administration, did Plaintiff notify Tina Marie Smith or her mother, Willie Mae Smith, of his intention to seek appointment as Administrator of the Estate of Baby Girl Smith. The purpose and legislative intent of the Wrongful Death and Survival Acts is to benefit the surviving family and rightful beneficiaries. That purpose is not advanced by the facts of this case.

Trial Court opinion, p. 2.

Thereafter, Attorney Brokans filed a motion for reconsideration which was denied, and this appeal followed.

The court below specifically did not address the issue of whether the grant of letters of administration to Attorney Brokans was void ab initio, stating “This Court is mindful of the line of cases that hold that an appointment of an administrator for an estate is a judicial function that cannot be attacked collaterally.”

Ordinarily, the granting of letters of administration by the Register of Wills is a judicial act, and the remedy of an aggrieved party is to appeal to the Orphans’ Court, rather than a collateral attack in the Court of Common Pleas. Freer’s Estate, 353 Pa. 351, 353, 45 A.2d 47, 49 (1946); West v. Young, 332 Pa. 248, 249, 2 A.2d 745, 746 (1939). However, as the discussion infra will demonstrate, the Philadelphia Register of Wills’ grant of letters of administration was void ab initio. Consequently, we will permit collateral attack on the decree granting letters to appellant since a void decree can be attacked at any time, in any court. In re Murray’s Estate, 158 Pa.Super. 504, 510, 45 A.2d 411, 415 (1946).

In Pennsylvania, the person entitled to letters of administration is determined by the application of 20 Pa.C.S.A. § 3155(b) which provides:

(b) Letters of administration. — Letters of administration shall be granted by the register, in such form as the case shall require, to one or more of those hereinafter mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuary estate under the will.
(2) The surviving spouse.
(3) Those entitled under intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons.
(6) If anyone of the foregoing shall renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding clause.

Appellant contends that he qualifies as a “fit person” since he is over eighteen years of age and a member in good standing of the Pennsylvania Bar Association. See also, 20 Pa.C.S.A. § 3156, Persons not qualified. Thus, appellant contends that the Register of Wills has the discretion to grant him letters of administration. Such is clearly not the case. Our Supreme Court, in Friese’s Estate, 317 Pa. 86, 176 A. 225 (1936), specifically stated:

Historically, the right of administration was placed on the ground of interest in the estate. Early judicial construction of the act of 1832 stated: ‘The right to administration is put expressly on the ground of interest, on the reasonable presumption that the person most interested to increase the estate is the most competent to administer.' In re Ellmaker’s Estate, 4 Watts 34, 38. The same principles are expressed by Justice Woodward in Kellberg’s Appeal, 86 Pa. 129, 133, and in In re Appeal of Anna B. Sieber, 1 Penny. 191. It was reiterated in Reamer’s Estate, 315 Pa. 148, 172 A. 655, where we held that one who has no financial interest in an estate has no standing to nominate an administrator for it (emphasis added).

Herein, we again reiterate the principle that one who has no interest in an estate has absolutely no standing to nominate an administrator for it It logically follows that, instantly, appellant had no standing to petition for letters of administration for an estate in which he admittedly has no financial interest, nor marital or consanguineous relationship. Consequently, we find that the Register of Wills had no authority to grant letters to the appellant and, thus, the grant was a void act.

This is not to say that a stranger can never be appointed administrator of the estate of a decedent who dies intestate. In fact, 20 Pa.C.S.A. § 3155(b)(5), which allows “Other fit persons” to be appointed administrator, was enacted to permit strangers to administer the estate under specific circumstances. Those situations fall generally into two categories — the first being when the proper parties to be granted letters under § 3155(b)(l)-(4) have interests adverse to one another and an impartial stranger must be appointed to administer the estate, Schmidt’s Estate, 183 Pa. 129, 38 A. 464; Warner’s Estate, 207 Pa. 580, 57 A. 35; Friese’s Estate, supra, 176 A. 225; and the second being when a party entitled to administer the estate renounces his right to administration in favor of a stranger, 20 Pa.C.S.A. § 3155(b)(6).

The facts before us fall into neither “stranger” category. Here, the Register of Wills appointed a complete stranger without any financial, blood or marital interest in the estate as administrator when the decedent’s mother, father and grandmother survived the child. The Register failed to hold a hearing regarding appellant’s assertion that the interests of the intestate heirs were adverse to the estate. Further, there is no evidence that the interests of the respective heirs are hostile to one another. Importantly, the intestate heirs have not expressly renounced their right to administer the estate.

In addition to the bar to granting letters of administration to the appellant, i.e. his lack of interest in the estate, we note the numerous defects in his original petition upon which the letters were granted, and we strongly admonish the Philadelphia Register of Wills for summarily granting such a woefully lacking petition. The most glaring example of the petition’s inadequacy is the fact that it was granted without the benefit of a death certificate; rather, the letters were granted based on newspaper clippings. This brings to mind immediately the statement made by Mark Twain in a telegram to the Associated Press upon learning of a news-report of his untimely demise: “The report of my death was an exaggeration.” Oxford Dictionary of Quotations, Oxford University Press, 3rd Edition, 1980, 554:22.

Further, the letters were granted without actual notice to the minor mother, father or grandmother of the child. Actual notice to the mother and grandmother was not given until July 29, 1987, almost eleven months after the letters were granted. The father has yet to receive actual notice. Constructive notice through publication was not given until November 24 and December 1 and 8, 1986, almost two months after the letters had been granted. See In re Coolidge’s Estate, 60 Lanc.Rev. 97, 15 Fiduciary 404 (1966) (register should give notice to heir prior to grant of letters); In re Frantz’s Estate, 32 D. & C.2d 351, 14 Fiduciary 93 (1964) (letters granted without renunciations or notice to heirs of equal rights void and revoked). See also 20 Pa.C. S.A. § 3162 (personal representative, immediately after the grant of letters, shall cause notice thereof to be given). We also note that, in the publication notice of his appointment as administrator, appellant erroneously labelled himself as executor.

In addition, the names of the mother, father and grandmother did not appear in the petition although their names appear throughout the Department of Public Health, Office of the Medical Examiner’s records which were created almost two years earlier at the time of death. See 20 Pa.C.S.A. § 3153(2). Thus, appellant’s statement that “[AJfter a proper search ..., [no heirs] are known, except for the mother ...” was a blatant falsehood. Moreover, appellant’s statement that the mother was an “unidentified juvenile whose interests are adverse to the estate ...” was a self-serving conclusion of law which could only be determined after a factual hearing. Likewise, appellant’s contention in his petition that he is a “fit person” to administer the estate was a conclusion of law which the Register of Wills, not the petitioner, should have made.

In conclusion, we find that Register of Wills’ grant of letters of administration to appellant, a stranger to the estate and all persons associated with it, was void ab initio. Appellant admittedly had no financial, marital or consanguineous interest in the estate. As jurists, we can not turn our eyes away from such a flagrant abuse of judicial authority, and, consequently, we will permit appellees to attack the appointment collaterally. Moreover, regardless of appellant’s perception of the nobility of his purpose and motive for asserting himself as administrator, we see him for what he is, the quintessential officious intermeddler. In fact, appellant, by usurping the true heirs’ right to select the administrator of the estate of which they are the ultimate beneficiaries, has come extremely close to violating the Professional Code of Ethics by arrogating to himself rights not available to him.

Order affirmed.

MELINSON, J., concurs in the result.

      . Herein, we affirm the decision of the lower court. However, our decision rests upon grounds other than those employed by the court below which we may do since appellees raised the issue of appellant’s capacity to sue in the court below. Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 495 A.2d 203 (1985); Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984). While we do not affirm on the reasoning of the trial court, we do not find it in error as the court’s general theory that the purposes of the Wrongful Death and Survival Acts are not furthered by this action is sound.

      . This allegation is supported by the Coroner’s postmortem report which states that the fetus’s physical characteristics were consistent with that of a fetus of approximately thirty-two weeks gestation.

      . It is undisputed that the fetus when aborted was viable. The postmortem report indicates the cause of death was the deprivation of resuscitation and life support following an induced delivery.

      . The public was informed of the particulars of this case through television, radio and newspaper accounts.

      . In addition, West Park Hospital requested discovery pursuant to Pa.RX.P. 209 in order to support its contention that Attorney Brokans lacked capacity to sue.

      . Those cases which hold that the Register of Wills’ grant of letters is a judicial act not subject to collateral attack are readily distinguishable on their facts from the case at bar. As a rule, those cases so holding deal with a collateral attack on the grant of letters to a person who is entitled to letters under 20 Pa.C.S.A. § 3155(b)(l)-(4), (6), by a person who is also entitled to letters but was not granted letters. Instantly, as the discussion infra will explain, Attorney Brokans was not entitled to letters as he was a complete stranger without any interest in the estate. Moreover, appellees would have no standing to challenge appellant’s appointment before the Orphans’ Court for the same reason that we find appellant had no standing to petition to become administrator. See discussion, infra.

      . We note that this case interpreted the Act of 1917. However, the provisions of that act and the present version thereof which are pertinent to the case before us have not changed in substance.

      . This idea is further supported by our Supreme Court’s holding in Friese's Estate, 176 A. 225, that the Register of Wills may exercise discretion in appointing an administrator within a class of persons eligible for appointment but cannot ordinarily violate the order outlined by legislation. Therefore, the Philadelphia Register of Wills erred in granting letters to appellant without at least holding a hearing when the Register was specifically informed in appellant’s petition that the child was survived by her mother who, even assuming arguendo that appellant could legally obtain letters, had priority to the letters pursuant to 20 Pa.C.S.A. § 3155(b)(2).

      . Only in the absolute absence of kin or creditors may any fit person be appointed. Frick’s Estate, 114 Pa. 29, 6 A. 363. However, even when no heirs or creditors exist, the Register pf Wills should deny a complete stranger’s petition for letters since the Commonwealth of Pennsylvania has sole remaining intestate interest in the estate, 20 Pa.C.S.A. § 2103(6), and is entitled to letters of administration, 20 Pa.C.S.A. § 3155(b)(3). Thus, upon denial and subsequent appeal to the Orphans’ Court, the Court will have the power to appoint a proper administrator after a hearing.

      . Appellant contends that the fact that the heirs have not specifically excepted to appellant's appointment as administrator acts as their renouncement in his favor. However, we will not allow a true heir’s mere silence to confer authority upon a stranger's appointment, especially when the heir is a minor. Ordinarily, renouncement is an affirmative act which certainly cannot be effected through silence. See generally Weidner’s Estate, 39 Pa.Super. 120, 124 (1909).

      . We take this opportunity to alert the Legislature, the Pennsylvania Supreme Court and local rules committees to the absolute ease with which letters of administration may be obtained in the hope that new standards will be enacted. Though we presume our brethren act legally, the current method of granting letters of administration is ripe for the perpetration of fraud upon an estate. As this case demonstrates, at least in Philadelphia, a complete stranger to an estate can obtain letters of administration without so much as a hearing to determine whether the information supplied in his petition is true. It is entirely conceivable that a n’eer-do-well could obtain letters based upon a fraudulent petition, use the letters of administration to withdraw funds from the decedent’s bank account and quietly abscond with the estate before the true heirs or the Commonwealth even learn of the decedent's death. While we do not herein propose a new system for granting letters — that is not our function — we are certain that allowing a clerk in the local register’s office to grant a petition, without so much as a cursory investigation into the veracity of the averments in the petition, does not adequately protect the interest of heirs or the Commonwealth.

      . In addition, the mother’s and grandmother’s address and phone number are given in the Medical Examiner’s record.


author: PER CURIAM:

text:
    570 A.2d 86
    COMMONWEALTH of Pennsylvania v. John ROSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1989.
    Filed Feb. 12, 1990.

      Harvey L. Anderson, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, BROSKY and WIEAND, JJ.
   PER CURIAM:

John Ross was tried nonjury and was found guilty of robbery, a felony of .the first degree, in violation of 18 Pa.C.S. § 3701(a)(1)(h), criminal conspiracy in violation of 18 Pa.C.S. § 903, and possession of an instrument of crime in violation of 18 Pa.C.S. § 907(a). A motion for post-trial relief was denied, and Ross was sentenced to serve a term of imprisonment of not less than five (5) years nor more than ten (10) years for robbery and to concurrent, lesser terms for criminal conspiracy and possessing an instrument of crime. On direct appeal from the judgments of sentence, Ross contends that (1) the evidence was insufficient to show a criminal conspiracy, and (2) the evidence was insufficient to show a robbery which was a felony of the first degree in violation of 18 Pa.C.S. § 3701(a)(1)(h) and showed no more than a violation of 18 Pa.C.S. § 3701(a)(l)(iv), which is a felony of the second degree. As such, he contends, his offense did not implicate the mandatory sentence provisions of 42 Pa.C.S. § 9713(a), which are applicable to certain enumerated crimes committed “in or near public transportation." Finally, he argues that if the mandatory sentence statute is applicable, it is unconstitutional because it violates due process and equal protection guarantees and also the constitutional proscription against cruel and unusual punishment. We find no merit in these arguments and affirm the several judgments of sentence.

The evidence has been recited fully in the opinion of the learned trial judge, and there is nothing to be gained by repeating it here. Suffice it to say that it was sufficient to show that appellant, by the use of an upraised knife, had threatened his victim with serious bodily injury. This is a felony of the first degree in violation of 18 Pa.C.S. § 3701(a)(l)(ii). The proper focus under this section is the type of bodily harm threatened. We look at the defendant’s intent and actions and not necessarily on the subjective state of mind of the victim. Commonwealth v. Thomas, 376 Pa.Super. 455, 460, 546 A.2d 116, 118 (1988) (en banc), allocatur denied, 520 Pa. 616, 554 A.2d 509 (1989). Since the evidence showed that appellant in this case intended to and in fact did threaten his victim by an upraised knife, it is not a defense to a charge under subsection (ii) of the robbery section that only the threatened person’s companion, who was assaulted simultaneously by a second robber, actually saw the knife.

Similarly, we rely on the trial court’s review of the evidence in determining that it was adequate to show appellant’s participation in a conspiracy to rob the two women who were waiting for the Broad Street subway.

Appellant’s contention that the mandatory sentence provisions of 42 Pa.C.S. § 9713(a) violate concepts of due process has previously been before the Superior Court, and the constitutionality of the statute has been upheld. See: Commonwealth v. Sargent, 349 Pa.Super. 289, 503 A.2d 3 (1986). See also: Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) (42 Pa.C.S. § 9712, requiring a mandatory sentence where defendant is in visible possession of a firearm, does not violate due process); Commonwealth v. Sanders, 380 Pa.Super. 78, 551 A.2d 239 (1988), allocatur denied, 522 Pa. 575, 559 A.2d 36 (1989) (statute is not vague or overbroad). Similarly, the statute has been held not to violate principles of equal protection. See: Commonwealth v. Jones, 374 Pa.Super. 431, 543 A.2d 548 (1988), allocatur denied, 522 Pa. 574, 559 A.2d 35 (1989).

Finally, appellant makes the bald suggestion — he offers no argument and cites no cases — that the provisions of 42 Pa.C.S. § 9713(a) serve to impose cruel and unusual punishment. Although this section of the statute has not been reviewed previously to determine whether it violates the constitutional proscription against cruel and unusual punishment, other statutes imposing similar mandatory sentences under other aggravating circumstances have been upheld. See: Commonwealth v. Howard, 373 Pa.Super. 246, 540 A.2d 960 (1988) (mandatory minimum sentence of five years required by 42 Pa.C.S. § 9712 for use of visibly possessed firearm does not constitute cruel and unusual punishment); Commonwealth v. Arnold, 356 Pa.Super. 343, 514 A.2d 890 (1986) (mandatory minimum sentence of five years required by 42 Pa.C.S. § 9718 for rape of child under sixteen (16) years is not cruel and unusual punishment). See also: Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985) (mandatory sentence provisions of drunk driving law, 75 Pa.C.S. § 3731 et seq., do not impose cruel and unusual punishment). The result in the instant case could not be otherwise. The mandatory minimum sentence required by 42 Pa.C.S. § 9713(a) does not exceed the maximum sentence authorized by 18 Pa.C.S. § 106(b)(2) for all felonies of the first degree.

In view of precedential authority to the contrary, appellant’s boilerplate averments of unconstitutionality cannot prevail. The mandatory sentence provisions of 42 Pa.C.S. § 9713(a) are constitutional.

The judgments of sentence are affirmed.