author: WIEAND, Judge:

text:
    497 A.2d 938
    Paul E. COURTNEY, Esquire, Louis J. Mercandante, Jr. and Ben J. Mauro, individually and trading as Northview Estates Development Company, Appellees, v. RYAN HOMES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Decided Aug. 16, 1985.

      George R. Specter, Pittsburgh, for appellant.
    Scott L. Melton, Conway, for appellees.
    Before BROSKY, WIEAND and LEDERER, JJ.

       The Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

This is an appeal from an order denying a petition to strike and/or open a judgment entered by confession pursuant to a warrant of attorney contained in a mortgage note on which the petitioner was admittedly in default. Because the judgment is not defective and because the petitioner failed to show facts constituting a meritorious defense to the indebtedness, we affirm. However, we agree with the appellant that the court erred when it rendered an advisory opinion regarding the amount of land subject to the lien of the judgment.

On November 3, 1977, Ryan Homes, Inc. (Ryan) paid $10,000.00 for an option to buy two tracts of land in the Borough of Economy, Beaver County, from Paul E. Courtney, Esquire, Lewis J. Mercandante, Jr. and Ben J. Mauro, trading as Northview Estates Development Company (Northview Estates). The option agreement provided that if Ryan exercised its option, it would purchase the entire tract consisting of 123.44 acres for a consideration of $2,700.00 per acre. Ryan exercised the option, and closing was held on June 13, 1979. Ryan paid to Northview Estates the sum of $86,656.96 on account of a total purchase price of $333,299.87 and received a credit for the prior payment of $10,000.00 made as consideration for the option. A purchase money mortgage and accompanying note were executed by Ryan in favor of Northview Estates for the unpaid balance of $236,642.91. The note contained a schedule of payments requiring Ryan to pay three annual installments of $78,880.97 each on the first, second and third anniversary dates of the closing, with interest payable quarterly at a rate of seven percent per annum. The note contained a confession of judgment clause as follows:

In case default be made in the payment of the within obligation or any other sum due hereunder or under the aforesaid mortgage and maker fails to cure such default after receiving thirty (30) days’ written notice thereof, maker hereby empowers any attorney of any court of record within the United States of America to appear for maker and, with or without declaration filed, confess judgment against the Undersigned in favor of any holder hereof, for the unpaid balance of the principal debt together with all other sums due hereunder, costs of suit and an attorney’s commission of Five Hundred Dollars ($500.00) or five percent (5%) of the total indebtedness, whichever is smaller, on which judgment or judgments one or more executions may issue forthwith upon failure to comply with all of the terms and conditions of this note and the aforesaid mortgage. Maker hereby forever waives and releases all errors in said proceedings, waives stay of execution, the right of inquisition, and extension of time of payment, agrees to condemnation of the mortgaged premises levied upon by virtue of such execution, and waives all exemptions from levy and sale of the mortgaged premises that now is or hereafter may be enacted into law.

Clauses in both the mortgage and note provided that Ryan’s liability was limited to the amount which could be recovered from the real estate securing the mortgage obligation and that Ryan should not be liable for any deficiency therein. The mortgage also provided for releases of real estate from the lien of the mortgage at the rate of one acre for each $2,700.00 paid. Specifically, the mortgage recited:

It is the understanding and agreement between the parties that the mortgagor shall be entitled from time to time during the term of this Mortgage, to have portions of the mortgaged premises released from the lien of this Mortgage as hereafter provided. The Mortgagor, having paid unto the Mortgagee a sum equal to twenty-nine percent (29%) of the total price of the mortgaged premises upon the delivery hereof, the Mortgagee shall at the request of the Mortgagor at any time following the recording of this Mortgage, in consideration of said prior payment and without further consideration release that part of the mortgaged premises selected by the Mortgagor (hereinafter called the “initially released parcel”), provided that said part of the mortgaged premises so selected shall consist of one (1) parcel containing twenty-nine percent (29%) of the total acreage of the mortgaged premises.
The Mortgagee shall, from time to time during the term of this Mortgage, at the request of the Mortgagor and upon the payment by the Mortgagor of a release price per acre of an amount determined by dividing the total number of acres of the mortgaged premises into the total consideration paid therefor released from the lien of this Mortgage additional portions of the mortgaged premises selected by the mortgagor.
The Mortgagor may, in making principal payments due under this Mortgage, defer the selection of that part of the mortgaged premises which the Mortgagor would be entitled to have released.

On the first anniversary, Ryan paid $78,880.97, the full installment then due. When this was added to the amount paid at closing, the total amount paid on account of principal as of June 13, 1980 was $175,537.93. The unpaid balance, therefore, was $157,761.94. On January 26, 1981, Ryan requested and received from Northview Estates a release of 21.2066 acres. This was almost forty-four acres less than the 65 acres Ryan was entitled to have released pursuant to the mortgage provision requiring releases of one acre for each $2,700.00 paid on account of the total purchase price. Release of the remaining acreage was deferred. On June 12, 1981, one day before the second anniversary of the mortgage, Ryan requested the release of an additional 43.798 acres from the lien of the mortgage. The second annual installment of $78,880.97 due on June 13, 1981, however, was not paid when due. Therefore, North-view Estates refused to sign the release which it received from Ryan. Ryan has not made any further payments, and Northview Estates has refused to release any land in addition to the 21.2066 acres released on January 26, 1981.

On January 13, 1983, Northview Estates filed a complaint in equity in the Court of Common Pleas of Beaver County, at No. 53 of 1983 D.S.B., to recover damages from Ryan for breach of contract, unjust enrichment and waste. Ryan filed a counterclaim requesting an order directing performance of the release provisions of the mortgage. Both the complaint and counterclaim are undecided and still pending in the Court of Common Pleas of Beaver County.

On January 25, 1983, Northview Estates gave Ryan written notice that Ryan was in default of payments required by the note and stated that if default were not cured within thirty days, judgment would be confessed for the unpaid balance. When payment was not made, Northview Estates filed a complaint in confession of judgment for $172,066.09, and judgment was confessed pursuant to the warrant of attorney contained in the note. The complaint averred that Ryan had defaulted in payment according to the terms of the note and had failed to cure the default within thirty days after receipt of written notice.

One month later, Ryan filed a petition to strike and/or open the judgment. After submission of briefs, but without hearing, the trial court, by order and opinion dated January 30, 1984, denied Ryan’s petition. Ryan thereupon filed an appeal. The appeal was discontinued when the court granted reconsideration. When, after reconsideration, the court again denied relief, the present appeal was filed.

A review of the record discloses no record defect in the judgment. No particular words or phraseology are required to enter judgment by confession; it is the substance and not merely the form which is important. Stein v. Penncrest Construction Corp., 280 Pa.Super. 560, 565, 421 A.2d 1074, 1076 (1980). The complaint and confession of judgment, although combined in one document, were substantially in the form required by the applicable rules of civil procedure. Moreover, when Ryan executed the note, it expressly waived and released errors in the procedure used to confess judgment. “[W]hile such release does not cure the defect of a lack of authority to confess the judgment, it does waive the right to attack mere irregularities in the proceeding [, i.e., procedural defects,] apparent in the record.” West Penn Sand & Gravel Co. v. Shippingport Sand Co., 367 Pa. 218, 222, 80 A.2d 84, 86 (1951). See also: Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 385, 465 A.2d 5, 7 (1983); Stein v. Penncrest Construction Corp., supra, 280 Pa.Super. at 566, 421 A.2d at 1077; Green Ridge Bank v. Edwards, 247 Pa.Super. 231, 240, 372 A.2d 23, 27 (1977). The trial court properly refused to strike the judgment.

“It is well-established that our scope of review on appeals from the grant or denial of a petition to open a judgment by confession is very narrow. Such petitions are appeals to the equitable and discretionary powers of the trial court, and absent an abuse of discretion or manifest error, we will not disturb its decision.” City of Pittsburgh v. Allegheny County Distributors, Inc., 339 Pa.Super. 109, 111, 488 A.2d 333, 334 (1985) (citations omitted). See also: Lazzarotti v. Juliano, 322 Pa.Super. 129, 133, 469 A.2d 216, 218 (1983); Lincoln Bank v. Kelly, 282 Pa.Super. 261, 267-268, 422 A.2d 1106, 1109 (1980). In order for a petition to open a judgment by confession to prevail, the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Young v. Pileggi, 309 Pa.Super. 565, 568, 455 A.2d 1228, 1229 (1983). See also: Lambakis v. Exar, 340 Pa.Super. 483, 488, 490 A.2d 882, 884 (1985). Evidence of a meritorious defense must be such as would create an issue requiring submission to a jury. Hamilton Bank v. Rulnick, 327 Pa.Super. 133, 137, 475 A.2d 134, 136-137 (1984). The right to enter judgment on a note is a question governed by the intent of the parties. See: Fidelity Bank v. Gorson, 296 Pa.Super. 1, 6, 442 A.2d 265, 267-268 (1982). The defense must be a valid defense to the entry of judgment under the terms of the instrument which contains the warrant of attorney. See: Haggerty v. Fetner, 332 Pa.Super. 333, 481 A.2d 641 (1984).

The confession of judgment clause contained in the instant mortgage note authorized confession of judgment “[i]n case default be made in the payment of the within obligation or any other sum due hereunder or under the aforesaid mortgage and maker fails to cure such default after receiving thirty (30) days’ written notice thereof____” (emphasis added). Judgment was to be entered “for the unpaid balance of the principal debt together with all other sums due hereunder____” (emphasis added). Ryan admitted that it was in default of the mortgage note. It also did not deny that it had received written notice of default at least thirty days prior to entry of judgment. The default, moreover, has not been cured. There is no dispute that as of June 13, 1982, the date final payment was due, appellant was in default under the terms of the note in the amount of $157,761.94. Northview Estates, therefore, was authorized to confess judgment against appellant for the full amount remaining unpaid, together with interest and attorney’s fees. Ryan has failed to aver any valid defense to the debt owed under the note or to Northview Estate’s right to judgment therefor.

Appellant argues, however, that the lien of the judgment includes too much land. Approximately 43 acres should have been released, Ryan argues, and should not have been subjected to the lien of the judgment. This issue was not properly a part of the proceeding to open judgment.

A mortgage and an accompanying note are separate obligations. The note is evidence of the debt; and the mortgage provides collateral security for the debt. Haggerty v. Fetner, supra, 332 Pa.Superior Ct. at 342, 481 A.2d at 646. “The holder of a bond and mortgage can proceed in rem or in personam to enforce his claim. He may proceed by an action of mortgage foreclosure or by an action on the bond [or note] which the mortgage secures.” Bank of Pennsylvania v. G/N Enterprises, Inc., 316 Pa.Super. 367, 371, 463 A.2d 4, 6 (1983) (citations omitted). As a general rule, a judgment entered by confession on a mortgage note or bond, unlike a judgment in mortgage foreclosure, is general and is not restricted to the mortgaged premises. It is a judgment against the maker of the note personally. Id., 316 Pa.Superior Ct. at 371, 463 A.2d at 6.

It is true, of course, that the note and mortgage in this case limit Ryan’s liability to the amount which can be realized from the mortgaged premises. Even though the amount which Ryan may ultimately be required to pay is limited, the right of Northview Estates to confess judgment for the entire amount due has not been impaired. Judgment may be confessed for the full amount due, and with respect to that amount Ryan has no defense.

Whether Ryan is entitled to have additional land released from the lien of the mortgage and/or judgment is not determinative of the validity of the judgment confessed by Northview Estates. A determination of the amount of land which Ryan is entitled to have released is not a necessary part of a proceeding to open the judgment. If the dispute regarding the release of land is not resolved in separate proceedings, it may become an issue if and when Northview Estates attempts to execute upon the judgment. “As security, the creditor has a right to as large collateral, and as many different forms of it, as the parties chose to contract for. That is a matter with which the court cannot interfere.” Fidelity Bank v. Gorson, supra, 296 Pa.Super. at 5, 442 A.2d at 267, quoting Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau, 153 Pa. 488, 492, 26 A. 220, 220 (1893). A determination of the collateral which secures the judgment indebtedness is not properly a part of the proceedings instituted by Ryan to open the confessed judgment. This judgment, as we have observed, was properly entered by confession, and the judgment debtor, i.e., Ryan, has failed to show that it has any defense thereto. Therefore, the court properly refused to strike or open the judgment.

The trial court erred, however, when it attempted to determine by dictum that Northview Estates had been relieved of its contractual obligation to release land by Ryan’s default in making payments required by the mortgage. When the court attempted to do so, it rendered an opinion that was advisory only; it was unnecessary to the issue then before the court. Courts are not instituted to render advisory opinions. Schoenbrun v. Nettrour, 360 Pa. 474, 476, 61 A.2d 868, 869 (1948). We will not compound the error committed by the trial court by conducting appellate review of the trial court’s advisory opinion. Whether Ryan is entitled to receive a release of additional land pursuant to agreement of the parties is an open question which can only be determined in appropriate proceedings. The trial court’s dictum regarding that separate issue does not establish the law of the case. Cf. Pierro v. Pierro, 434 Pa. 131, 132, 252 A.2d 652, 653 (1969).

The order refusing to strike or open the judgment is affirmed but without prejudice to appellant’s right to litigate in separate proceedings (1) the effect of its default upon the provisions of the parties’ agreement regarding the release of land and (2) the amount of land on which appellees can execute to enforce their judgment.

      . Although Ryan had mailed the request for release on June 12, appellees contend that they received the letter and proposed release some time after June 13.

      . Northview Estates contends that if it releases the land requested by Ryan, the value of the remaining land will be inadequate to secure the unpaid balance of the mortgage.

      . The judgment was itemized as follows:
      Principal Sum $157,761.94
      Interest 13,804.15
      Attorney Fees 500.00
      TOTAL $172,066.09


source: Caselaw Access Project

author: ROBERTS, Judge:

license: Public Domain

text:
    497 A.2d 1332
    Paul J. ZANINE and Nancy Zanine, his wife, Appellants, v. Robert A. GALLAGHER, Jr., Alexander J. Stockard, Scott A. Herrick, Hamilton Stockard, Candy Walters, Joseph Glennon and Henry Walters.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed July 26, 1985.
    Reargument Denied Oct. 7, 1985.

      Alexander A. DiSanti, Media, for appellants.
    James P. Gannon, Media, for appellees.
    Before MONTEMURO, ROBERTS and BLOOM, JJ.

       Judge Louis A. Bloom, Senior Judge of the Court of Common Pleas of Delaware County, Pennsylvania, is sitting by designation.

   ROBERTS, Judge:

Appellant Paul Zanine and his wife, Nancy, sued appellee Robert Gallagher for injuries allegedly caused by appellee’s negligence in inducing appellant, a police officer, to engage in a high speed automobile chase. A jury found appellant to have been 51% negligent and appellee to have been 49% negligent, and judgment was consequently entered in favor of appellee. See 42 Pa.C.S. § 7102(a). Appellants now challenge the trial court’s denial of their motions for judgment notwithstanding the verdict and for a new trial. Because we believe appellants have neither alleged nor proven sufficient facts to establish a cause of action against appellee for negligence, we affirm.

On December 18, 1977, appellant was assigned to patrol the Brookline-Oakmont section of Haverford from midnight until 8 a.m. Before beginning his shift, he was advised of a recent increase in car thefts and thefts of parts from parked cars in this section of Haverford.

Around 2 a.m., while driving east on Eagle Road in the business district of Oakmont, appellant saw a number of youths, including appellee, standing behind a parked car. On seeing appellant’s squad car, the youths jumped into the parked car and sped away through a red light, with appellee at the wheel. Believing that the youths had committed a crime, appellant radioed the police station of this series of events, turned on his emergency lights and siren, and pursued appellee onto Darby Road.

The chase proceeded on Darby Road, a two-lane highway with many sharp curves and blind turns, at speeds of about 80 miles per hour, until appellee lost control of his car and crashed into an embankment. Appellant managed to stop his vehicle about 6 feet from appellee’s car. No one was seriously injured.

Shortly after the crash, other police cars arrived on the scene in response to appellant’s radio message and helped appellant take appellee and his passengers to the nearby Haverford police station. About 10 minutes after arriving at the station, appellant began experiencing severe chest pains and nausea, which were later diagnosed as symptoms of an acute heart attack. Appellants brought the present action to recover damages resulting from the heart attack, which they allege was caused by appellee’s negligence in fleeing appellant.

Two grounds for relief are asserted on this appeal. First, appellants contend that they were entitled to judgment notwithstanding the verdict because the evidence presented at trial failed to establish that Paul Zanine was contributorily negligent. Alternatively, appellants argue that they are entitled to a new trial because the court erred in refusing to instruct the jury that a party may be found contributorily negligent only as to risks he could reasonably foresee incurring as a consequence of his actions. Since appellant did not suspect that he might have heart trouble, appellants insist that he could not have reasonably foreseen the kind of injury he suffered, and therefore cannot be considered contributorily negligent. We believe the trial court correctly refused to grant relief, not because appellant was contributorily negligent, but because the evidence presented by appellants does not establish actionable negligence on the part of appellee as a matter of Pennsylvania law.

Appellee’s conduct may have been “negligent”, in the sense that it displayed carelessness, recklessness, or inadvertence, but proof of such conduct does not suffice to establish a cause of action in negligence. Three elements must be proven to establish such a cause of action: a duty of care on the part of the alleged tortfeasor in regard to the plaintiff; a breach of that duty; and a showing that the plaintiff’s injuries were proximately caused by the breach. See Leoni v. Reinhard, 327 Pa. 391, 393, 194 A. 490, 491 (1937). Since our courts have emphasized that there can be no negligence where there is no duty of care, see, e.g., Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971), it behooves us to consider how the existence of such a duty may be established.

“Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time____” Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983). Where, as here, the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. See Gerdes v. Booth & Flinn, Ltd., 300 Pa. 586, 591, 150 A. 483, 485 (1930). The scope of this duty, however, is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case. See Paulscak v. Hoebler, 330 Pa. 184, 190-92, 198 A. 646, 650 (1938) (citing cases); Restatement (Second) of Torts § 284(a) (1965).

By speeding away from appellant’s squad car, appellee undeniably created a variety of risks to appellant and to others. The law clearly states, however, that appellee may be held liable only for those risks a person in his position could reasonably have foreseen. We do not believe that the risk that appellant would have a heart attack due to the stress of chasing appellee was such a risk. See W. Prosser, Law of Torts 146-47 (4th ed. 1971) (characterizing the risk that a driver might have a heart attack while at the wheel as one that would not reasonably be anticipated). Consequently, we find that appellee owed appellant no duty of care in the circumstances of this case.

We do not believe that Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) requires us to find a cause of action on the present facts. In cutting the impact rule away from the body of Pennsylvania jurisprudence, the Niederman court was modifying the law of negligence with regard to proximate cause, not with regard to the duty of care. See Niederman, 436 Pa. at 403-05, 261 A.2d at 84-85. Niederman, therefore, does not affect our holding here.

Given our determination that appellee owed no duty to appellant, we need not address appellants’ claims concerning contributory negligence. See, e.g., Gilbert v. Korvette’s, Inc., 457 Pa. 602, 604 n. 5, 327 A.2d 94, 96 n. 5 (1974) (appellate court may affirm on any proper ground).

Order affirmed.

      . Nancy Zanine’s claim in this case is confined to loss of services and loss of consortium; she was not involved in the events leading to her husband’s injury. In light of our disposition, “appellant” here refers solely to Paul Zanine.

      . Alexander J. Stockard, Scott A. Herrick, Hamilton Stockard, Candy Walters, Joseph Glennon, and Henry Walters, who were passengers in Robert Gallagher’s car during the chase that led to appellant’s injury, were also defendants in the present action. Since they have not filed appellate briefs with this court or otherwise participated in the present appeal, our discussion will proceed as though Robert Gallagher had been the only defendant.


author: OLSZEWSKI, Judge:

text:
    497 A.2d 1335
    COMMONWEALTH of Pennsylvania v. John Stephen ZAENGLE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Aug. 16, 1985.

      Taylor P. Andrews, Public Defender, Carlisle, for appellant.
    Kevin A. Hess, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI, and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

By order of the Supreme Court, 508 Pa. —, 497 A.2d 1330, this case has been remanded for proceedings consistent with Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). Frisbie holds that, where legislatively authorized, the imposition of multiple sentences upon a defendant whose single unlawful act injures multiple victims is legal. In the instant case, appellee driving drunk killed three people. The test of legislative authorization under Frisbie looks to the language of the statute defining the offense. See id., 506 Pa. at 466, 485 A.2d at 1100 (comparing the language of 18 Pa.C.S. Sec. 2705 with that of 18 Pa.C.S. Sec. 2707 and 2710). The operative language in 75 Pa.C.S. Sec. 3732 penalizes “(a)ny person who unintentionally causes the death of another person.” (Emphasis added.) Applying the Frisbie analysis to the facts of this case, we conclude that the legislature did authorize multiple sentences for multiple deaths resulting from a single violation of 75 Pa.C.S. Sec. 3732. Accord Commonwealth v. Zaengle, 332 Pa.Super. 137, 141, 480 A.2d 1224, 1228 (1984) (Olszewski, J., dissenting).

The sentences imposed by the trial court are reinstated.


author: MONTEMURO, Judge:

text:
    497 A.2d 1336
    Robert DILLON, a minor by his P/NG, Diane DILLON and adoptive parent and guardian, Thomas Dillon and Diane and Thomas Dillon in their own right, Appellants v. The NATIONAL RAILROAD CORPORATION (AMTRAK) and Consolidated Rail Corporation (Conrail) and Southeastern Pennsylvania Transit (SEPTA) and City of Philadelphia and Andrew L. Lewis, Jr. and Joseph L. Castle, Trustees of the Reading Company and Robert W. Blanchette, R.C. Bond and J.H. McArthur, Trustees of Penn Central Transportation Company and Fairmount Park Commission and Louis Thornton Klauder, t/a Louis T. Klauder & Associates.
    Superior Court of Pennsylvania.
    Argued Nov. 23, 1983.
    Filed Aug. 23, 1985.

      Robert J. Murphy, Philadelphia, for appellants.
    Charles T. Roessing, Philadelphia, for appellees.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   MONTEMURO, Judge:

This matter is before us on the appeals of plaintiffs below from the lower court’s orders of March 2, 1982, and April 8, 1982. The order of March 2, 1982, both denied appellants’ motion for an extension of time in which to respond to a motion for summary judgment by appellees, the trustees of the Reading Company, and granted the motion for summary judgment as unopposed by appellants. The order of April 8, 1982, denied appellants’ motion for reconsideration of the March 2, 1982, order.

We initially note that, while it is procedurally permissible for a party to appeal a lower court’s order and at the same time request the lower court itself to reconsider such order, Pa.R.A.P. 1701, a subsequent denial of reconsideration by the lower court is not an appealable order. Geek v. Smeck, 275 Pa.Super. 259, 418 A.2d 711 (1980); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977). Rule 1701 contemplates that when a motion for reconsideration is denied, the prior appeal retains its validity; however, when reconsideration is granted, the prior appeal becomes inoperative and appeal time will run anew after the lower court reconsiders the merits of the claim and enters a new order. Thus, it is clear that the lower court’s April 8, 1982 order refusing reconsideration is not reviewable on appeal, and the appeal from that order is dismissed. Since appellants fortuitously filed a direct appeal from the prior order of March 2, 1982, that appeal retains its validity and is properly before us.

Two issues are presented in the appeal from the lower court’s order of March 2, 1982: whether the lower court erred in denying appellants’ motion for an extension of time in which to respond to appellees’ summary judgment motion, and whether the lower court erred in granting the motion for summary judgment.

The underlying facts are as follows: On August 14, 1976, appellant, Robert Dillon, then aged thirteen, climbed a fifty (50') foot signal bridge on the Fox Chase branch of the commuter rail system in Philadelphia. The signal bridge had been modified for the electrification of the trains, and appellant, Robert Dillon, came in contact with one of the electrical lines. He received an electrical shock, fell from the signal bridge, and consequently suffered injuries including the amputation of his right leg above the knee.

The appellants, Robert Dillon, and his parents, filed suit on December 7, 1977, against: appellees, several other railroad entities, the City of Philadelphia and the Fairmount Park Commission. Liability against appellees was predicated on Reading Company’s ownership, possession, control, operation, and maintenance of the signal bridge and the land upon which the signal bridge was located. Appellees joined as an additional defendant, Louis T. Klauder and Associates, the engineering firm which had designed, constructed, and installed the electrical modifications to the signal bridge.

Extensive discovery ensued, as is evidenced by thirteen pages of docket entries. On December 18, 1981, appellees filed the instant motion for summary judgment. The basis for the summary judgment motion was that, pursuant to the federal Regional Rail Reorganization Act (hereinafter “Act”), all right, title and interest in Reading Company’s rail properties were conveyed to Conrail on April 1, 1976. This conveyance took place over four months prior to the accident of appellant, Robert Dillon. Appellees argued that since all theories of liability advanced against them were premised on Reading Company’s ownership or possession of the property, and since Reading company neither owned nor possessed the property as of the date of the accident, they were entitled to summary judgment in their favor.

Appellants contend that they duly prepared a response to appellees’ summary judgment motion, in accordance with local rule. Inexplicably, appellants’ response was never received by the lower court. A pre-trial conference was held on January 27, 1982, at which time appellants learned that appellees’ summary judgment motion remained unopposed. No further action was taken by appellants until eight days later, on February 4, 1982, when appellants filed both a motion to extend the time in which to respond to appellees’ summary judgment motion, and an answer and opposing affidavit to appellees’ motion for summary judgment. On March 2, 1982, the lower court entered its order denying the motion to extend, and granting summary judgment in favor of appellees.

The first issue presented in this appeal is whether the lower court erred in denying the motion to extend, thereby deciding the summary judgment motion without consideration of appellants’ tardy answer and opposing affidavit thereto. Specifically, appellants argue that under Pa.R.C.P. 1035(b), they had until the day the order was entered in which to file their answer and opposing affidavit; thus, Philadelphia Co. R.C.P. 140 relied on by the lower court is invalid in that it is inconsistent with the Pennsylvania Rules of Civil Procedure.

Counties possess authority to make rules for the operation of their own court systems. 42 Pa.C.S. § 323; Byard F. Brogan, Inc. v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983). Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983); appeal denied, 319 Pa.Super. 227, 465 A.2d 1313 (1983), Miller v. Hild, 303 Pa.Super. 332, 449 A.2d 714 (1982). A local rule will be held invalid if it abridges, enlarges, or modifies substantive rights of the litigants. Miller, id.

As noted in footnote three, supra, Philadelphia Co. R.C.P. 140 requires that a party opposing a motion file an appropriate response within twenty days; if there is no such response filed within the time provided, the matter is treated as uncontested. Here, the summary judgment motion was filed on December 18, 1981. Under the local rule, therefore, appellants had until January 7, 1982, in which to file their appropriate response.

Pennsylvania Rules of Civil Procedure 1035(b) provides that where a motion for summary judgment is filed, “[t]he adverse party, prior to the day of hearing, may serve opposing affidavits.” (Emphasis added). Appellants reason that where, as here, the summary judgment motion is decided without hearing, Pa.R.C.P. 1035(b) should be interpreted to allow the adverse party, to file its opposing affidavits up until the day of disposition. Appellants conclude that the local rule is inconsistent with such an interpretation, and is, therefore, invalid.

We refuse to accept appellants’ interpretation of Pa.R.C.P. 1035(b), and, consequently find no conflict with the local rule. While Pa.R.C.P. 1035(b) does not address the situation where there is no hearing on the summary judgment motion, it would be impractical to allow an opposing affidavit to be filed at any time until the entry of the order. In our view, the benefit which accrues to both the opposing party and the lower court would be vitiated if the time for filing was permitted to remain indefinite. Pa.R.C.P. 1035(b) sets forth a definite filing deadline for cases where a hearing is held—it does not follow that where no hearing is held, the time for filing is indefinite. Instead, it is reasonable to adopt a definite time period in instances where no hearing is held. Thus, the Philadelphia county rule requiring opposing affidavits to be filed within twenty (20) days of the summary judgment motion, is, under the circumstances, compatible with, rather than contradictory to, Pa.R.C.P. 1035(b).

Appellants present an additional argument with regard to the lower court’s denial of their motion to extend. They assert that the lower court abused its discretion in light of their allegation that they had prepared and delivered for filing a timely appropriate response to the summary judgment motion.

“The lower court may extend or refuse to extend the time within which to meet a filing requirement so long as the action taken does not amount to an abuse of discretion which causes manifest and palpable injury to one of the parties.” Byard F. Brogan, supra, 501 Pa. at 241, 460 A.2d at 1096. We find no abuse of discretion here. The motion to extend was not filed until twenty-eight (28) days following the expiration of the time for filing an appropriate response to the summary judgment motion. Appellants did not adequately explain their failure to file their answer and opposing affidavit in a timely fashion, and even after they were informed of the unopposed status of the summary judgment motion, they delayed another eight (8) days before filing the motion to extend and answer, and opposing affidavit. Furthermore, the thrust of both the motion to extend and the opposing affidavit concerned documents which were discovered by appellants only four (4) days prior to the filing of the motion to extend and opposing affidavit.

Moreover, we perceive no injury to appellants by the lower court’s refusal to extend the time for filing and accept the submitted opposing affidavit. Although the motion for summary judgment was treated as uncontested, summary judgment was not automatically entered in favor of appellees. The lower court properly reviewed the record before it to determine whether there was a genuine issue of material fact and whether appellees were entitled to judgment as a matter of law. The answer submitted by appellants did not dispute the operation of the federal Act which transferred the right, title and interest of all of Reading Company’s rail properties to Conrail. Instead, the answer maintained that judgment should not be entered in favor of appellees because newly-discovered documents revealed that: (1) Reading Company had designed, constructed and installed the electrical modification to the signal bridge; and (2) at the time of the accident, Reading Company leased the rail facilities concerned from the City of Philadelphia. These documents were incorporated into the answer by the opposing affidavit. In effect, therefore, appellants attempted to show that there remained disputed issues of fact regarding whether or not Reading Company was liable for negligent design, construction, and installation; or, as a possessor of land.

Even if the lower court had considered such documents, however, they would have had no effect on the grant of summary judgment in favor of appellees. Assuming that factual issues were apparent with regard to appellees’ negligent design, construction, and installation, this cause of action had not previously been pled against appellees, but was a totally new theory of liability. Until the filing of appellants’ motion to extend and opposing affidavit, appellees’ liability had been predicated solely on Reading Company’s status as the owner or possessor of the railroad properties. In actuality, appellants were relying on a new cause of action against appellees without first obtaining leave of court to amend their complaint. Thus, factual issues pertinent to liability under this unauthorized theory were irrelevant to the lower court’s summary judgment determination.

Similarly, the document purporting to expose the Reading Company as leasee of the rail properties at the time of the accident would not have influenced the entry of summary judgment. Reading Company’s position as owner or possessor of the rail properties at the time of the accident was exactly the question before the lower court; i.e., what effect the federal Act had on all of Reading Company’s rights, titles, and interests in its rail properties. The lease agreement, being an interest by Reading Company in rail property, would be subject to the operation of the federal Act.

Accordingly,' we find that the lower court’s refusal to extend the time in which appellants had to file their opposing affidavit did not constitute an abuse of discretion causing manifest and palpable injury to appellants.

The second issue raised on appeal is whether the lower court erred in granting summary judgment in favor of appellees. Appellants present two arguments to attack the summary judgment: that the motion for summary judgment was not timely filed “so as not to delay trial”, Pa.R. C.P. 1035(a); and that summary judgment was granted on the basis of deposition testimony of the moving party, in violation of the rule established in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). We find no merit to either contention.

Pennsylvania R.C.P. 1035(a) permits a party to move for summary judgment “[ajfter the pleadings are closed, but within such time as not to delay trial____” The motion for summary judgment was filed December 18, 1981. At that time, the case was specially listed for trial on January 4, 1982. The lower court considered the motion for summary judgment on the merits. Since the function of a summary judgment motion is to avoid a useless trial, Rose v. Food Fair Store, Inc., 437 Pa. 117, 262 A.2d 851 (1970); William J. Heck Builders, Inc. v. Martin, 315 Pa.Super. 395, 462 A.2d 253 (1983), and such a result was achieved here, we find no error in the lower court. In addition, our research has uncovered only one instance of reversal of the entry of summary judgment due to untimeliness—where summary judgment is requested after the commencement of trial. William J. Heck Builders, Inc., supra. This is not the situation before us.

Appellants’ final argument involves the rule set forth in Nanty-Glo, supra. As extended to summary judgment motions, the rule provides that “testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.” 2 GOODRICH-AMRAM 2d § 1035(b):4. Appellants assert that the summary judgment motion was supported only by oral testimony, the credibility of which was a matter for determination by the jury.

Appellants’ position is erroneous. Appellees’ motion for summary judgment was based upon the applications of federal law—oral testimony in the form of depositions by Reading Company employees was merely corroborative of the operation of the federal Act. Since it is undisputed that appellant, Robert Dillon’s, accident occurred on August 14, 1976, and Reading Company was one of the rail entities subject to the federal Act, it was a purely legal interpretation of the federal Act that all rail properties of Reading Company were conveyed to Conrail on April 1, 1976. Therefore, Nanty-Glo, id., had no applicability to the instant case and does not bar the entry of summary judgment.

Accordingly, the lower court’s order of March 2, 1982, is affirmed. The appeal from the lower court’s order of April 8, 1982, is dismissed.

      . Although technically there are three appeals before us rather than two, the third appeal results merely from an amended notice of appeal, and is substantively identical to the first appeal from the lower court’s order of March 2, 1982.

      . Act of January 2, 1974, Pub.L. 93-236 Title I, § 101 et seq., 45 U.S.C. § 701 et seq.

      . Philadelphia Co. R.C.P. 140 provides in pertinent part:

        (C) Response Requirements.

      Any party opposing the relief requested must file with the Motion Clerk, not later than 5 P.M. on the date contained in the letter of transmittal required by Section (B) hereof [a date not later than twenty (20) days of filing date of the motion], the appropriate response____
      The Motion Clerk may, upon written request, extend the time limit to respond for a period not to exceed ten (10) days. If there is no response within the time provided, the matter shall be treated as uncontested.

      . Curiously, both the motion to extend and the answer to the summary judgment motion were premised on documents, the existence of which appellants did not discover until February 1, 1982.

      . In the instant case, appellants filed an answer, with an opposing affidavit attached thereto, and a memorandum of law in response to appellees' motion for summary judgment. In its opinion written pursuant to Pa.R.A.P. 1925, the lower court alternatively refers to appellants’ "answer" or "response” as having been filed late. We note that if the "appropriate response" required by Philadelphia Co. R.C.P. 140 is considered something more than the "opposing affidavit” required by Pa.R.C.P. 1035(b), the local rule may be deemed invalid as being inconsistent with the requirements of Pa.R.C.P. 1035(b). See 2 GOODRICH AMRAM § 1035(b):l. However, that issue is not before us as the lower court rejected the entire “response” or "answer” filed by appellant, which necessarily included the opposing affidavit. In any event, appellants’ claim of invalidity goes to the timing requirements of the local rule, and does not address the actual document to be filed. See discussion infra.

      . The court quashed this second appeal "[s]ince the subject of the within appeal was also the subject of an appeal as of No. 1852 Philadelphia, 1981, and since that proceeding has been concluded by the entry of an Opinion, the within appeal is quashed as moot.”

      . We observe, however, that a contradiction would exist in a situation where a motion court adhered to the twenty (20) day limitation, even when a hearing on the summary judgment motion was scheduled for a later date. However, we are not confronted with such a situation.

      . Early on in this litigation, appellees themselves joined Louis T. Klauder and Associates on this basis of liability. No other party filed any claims against Louis T. Klauder and Associates, and so the entry of summary judgment in favor of appellees also relieved Louis T. Klauder and Associates of liability.

      . Further, it is probable that the statute of limitations on such a cause of action had already passed. The electrical modification was done in the "early 1960’s," and a twelve year statute of limitations applied. 42 Pa.C.S. § 5536.

      . Appellees state that the listing of January 4, 1982, was only on a “back-up” basis.


author: POPOVICH, Judge:

text:
    497 A.2d 1342
    Helen WOJCIECHOWSKI and Charles Wojciechowski, Her Husband, Appellants, v. William MURRAY, Court Administrator of Lackawanna County and the County of Lackawanna.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Aug. 23, 1985.

      Frank J. Muraca, Scranton, for appellants.
    Paul J. Gelman, Philadelphia, for appellees.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is a consolidated appeal from the January 10, 1985 judgment entered following the granting of the preliminary objections in the nature of a demurrer and the motion for judgment on the pleadings of the defendants-appellees, County of Lackawanna and William Murray, Court Administrator of Lackawanna County, respectively. We vacate and remand.

As is our function upon an appeal from a decision of the lower court sustaining the preliminary objections in the nature of a demurrer to the plaintiffs complaint, the appellate court must accept as true every relevant fact sufficiently averred in the plaintiffs complaint together with every inference favorable to the plaintiff which is fairly deducible therefrom. 16 Standard Pennsylvania Practice 2d, § 91:61 at 484-86 (1983).

In passing on the propriety of the entry by the lower court of the judgment on the pleadings, we, as an appellate court, must accept as true, for purposes of review, the factual allegations in the plaintiffs complaint, and from such an inquiry determine whether or not the action of the court below was based on a clear error of law, or whether there were facts disclosed by the pleadings which ought to be passed on by a jury. 16 Standard Pennsylvania Practice 2d, § 91:63 at 489, 490 (1983).

In compliance with the aforesaid, we see that in Helen and Charles Wojciechowskis’ complaint in trespass, filed February 22, 1984, the plaintiffs alleged that Helen had filled out a jury service questionnaire mailed to her by William Murray. Therein, Helen had written that “she could not serve on the jury panel for medical reasons----” (Paragraph 5) Her doctor attested to the same. However, despite the return of the questionnaire with the excuse by her doctor that she had an “unstable cardiac condition”, Helen was called for jury service. A second attempt by Helen’s doctor to have his patient excused also proved unsuccessful. In this communique the doctor informed the Court Administrator’s Office that a nurse should be made available in the courtroom and that arrangements should be made for a possible emergency transfer to a hospital should Helen “suffer one of her unpredictable cardiac spells in court.” (See Exhibit “B”)

On March 23, 1981, Helen appeared for jury duty and was selected to hear a criminal case. She goes on to aver that “[o]n March 25, 1981, as a result of jury service aforesaid, ... [she] suffered a heart attack and was immediately hospitalized at the Community Medical Center, Scranton, Pennsylvania.” (Paragraph 10) Helen attributed her heart attack to the “negligence and carelessness of the Defendant, County of Lackawanna, by and through its agent, servant, workman or employee, Defendant, Court Administrator” on the following grounds:

A) failing to excuse Helen ... from jury service after her return of the questionnaire form;
B) failing to excuse Helen ... from jury service after her physician ... corresponded with the Court Administrator;
C) failing to excuse Helen ... from jury service at the time of voir dire;
D) failing to promulgate policies, guidelines, standards or procedures for excusing jurors from service; and
E) being otherwise negligent, careless and reckless.

(Paragraph 11) In turn, Helen’s husband sought the recoupment of damages for the defendants’ negligence and carelessness in causing the “deprivation] of the assistance and society of his wife____” (Paragraph 19)

In March of 1984, after the completion of interrogatories, Lackawanna County and William Murray submitted preliminary objections in the nature of a demurrer and a motion for judgment on the pleadings, respectively.

In the case of Lackawanna County, it read Helen’s complaint as alleging the “negligent infliction of emotional distress”. Accordingly, it went on to contend that since Helen had failed to state that the “defendants acted intentionally to injure” her, she had neglected to state a claim upon which relief could be granted. As for plaintiff-husband’s claim, the County continued, his derivative suit had to fail with the denial of his wife’s claim.

William Murray, on the other hand, requested a grant of his motion on the grounds that: 1) he, as Court Administrator, was immune from suit for the actions complained-of; 2) plaintiffs had not stated a claim upon which relief might be granted; and 3) plaintiffs’ action was barred by the statute of limitations, 42 Pa.C.S.A. § 5522(b)(1).

The trial court issued an opinion and order granting Lackawanna County’s preliminary objections. However, the relief was predicated upon the trial court’s sua sponte recognition that, because the County was a “local agency” (see 42 Pa.C.S.A. § 8501), the body politic was immune from suit under the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541. Shortly thereafter, the trial court issued an order encompassing William Murray’s motion upon the plaintiffs’ notation that the initial order neglected to cover the Court Administrator’s request for relief.

At the outset, we wish to state that, in the face of a defective record, we are hampered in our effort to render a prudent decision.

In general, we observe that the trial court failed to comply with its statutorily created obligation to set forth in an opinion “the reasons for the order” granting William Murray’s motion for judgment on the pleadings. Pa.R. App.P. 1925(a). In particular, we are compelled to note our disapproval of the trial court’s sua sponte reference to and use of the Political Subdivision Tort Claims Act “as a basis for the present cause of action to be dismissed.” Especially is this so in the absence of Lackawanna County’s reliance upon such an immunity statute to skirt liability. The reasons against endorsing such a gratuitous act were cogently stated in Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985), wherein the trial court’s denial to the plaintiffs of the opportunity to retain an additional defendant in a personal injury case, because it felt that any verdict brought in by the jury in favor of the plaintiffs would have been time-barred, was held to be “presumptive”. Additionally, we observed that the statute of limitations was a defense which should not be addressed by a trial court sua sponte. Rather, the defense had to be pleaded. Also, as is germane herein, we went on to write:

Instantly, it is undisputed that Rightly[-additional defendant] has neither entered an appearance nor has he, as a result, raised any objections or defenses to his inclusion in the suit. Therefore, since Rightly has failed to act, it is not the responsibility of the trial court to act as his advocate and proffer a defense to the plaintiffs’ request to seek an amendment to their complaint.

343 Pa.Super. at 594, 495 A.2d at 955 (Emphasis added).

In the same vein, we admonish the trial court here for raising a defense on behalf of the appellee/Lackawanna County, and, in essence, acting as its advocate. Such is not the function of a jurist. Cf. Moore v. Mobil Oil Co., 331 Pa.Super. 241, 283, 480 A.2d 1012, 1034 (1984) (Dissenting Opinion by POPOVICH, J.) (“We[, i.e., the courts,] should not act as attorneys for the Prosecution and find new issues unless we do the same for the appellant.” (Citation omitted) ).

We do not find persuasive the argument of counsel for Lackawanna County that if a remand takes place it assuredly will raise the Political Subdivision Tort Claims Act as a defense. Consequently, in reliance upon Parish v. Seitz, 314 Pa. 319, 171 A. 586 (1934), Lackawanna County requests this Court to overlook the procedural irregularity and, in the interest of judicial economy, sustain the actions of the trial court.

We decline Lackawanna County’s invitation to give tacit approval to a practice hereinbefore criticized. See, e.g., Moore v. Mobil Oil Co., supra; Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983); Edward M. v. O’Neill, 291 Pa.Super. 531, 436 A.2d 628 (1981).

Also, we find Parish distinguishable in that the Supreme Court there noted, in responding to the plaintiff’s claim that the trial court could not grant the defendant’s motion for a nonsuit because the motion had been waived upon the defendant’s presentation of evidence, that:

Even if the action had been tried to a verdict for plaintiff, it would have been the duty of the [trial] court to enter judgment for the defendant’s n.o.v.

314 Pa. at 320, 171 A. at 587. Thus, the Parish Court observed that the plaintiff “was not barred” by the grant of the nonsuit.

Instantly, in contrast to Parish, the trial court would not have had the “duty” to grant the preliminary objections of the appellee absent the filing of a defense of governmental immunity pleading. See Dash v. Wilap Corp., supra. Accordingly, the appellants should be given the opportunity to respond (which they have not done specifically in their brief to us) to the governmental immunities contentions. As much was stated by Commonwealth Court in Gubernick v. City of Philadelphia, 85 Pa.Cmwlth. 397, 481 A.2d 1255 (1984).

In Gubernick, the petitioners were granted no-fault benefits after being struck by a Philadelphia police vehicle. The City of Philadelphia appealed. The circumstances prompting a remand were stated by Commonwealth Court as follows:

On appeal, the City contends that the Political Subdivision Tort Claims Act[] controls this action to the exclusion of the No-fault Act.
* sfc * Hs * *
A review of the record reveals that the City of Philadelphia did not, in its argument before the court below, address the issue of whether the Political Subdivision Tort Claims Act controls in this case. Ordinarily, questions not properly raised below will not be considered by this Court on appeal. Muehleisen v. State Civil Service Commission, 66 Pa. Commonwealth Ct. 95, 443 A.2d 867 (1982), aff'd 501 Pa. 335, 461 A.2d 615 (1983). However, when an issue which the Court sees as paramount is not addressed by the parties, it will not decide the case sua sponte but will allow the parties an opportunity to address that issue. Harris v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 317, 444 A.2d 807 (1982). We therefore remand this case to the common pleas court for determination of which law controls and disposition of the Gubernicks’ position in accordance with that law.
Vacated and remanded.

85 Pa.Cmwlth. at 399-400, 481 A.2d at 1256-1257 (Footnotes omitted).

In the spirit of Gubernick, we remand to allow the parties to argue their respective positions to the trial court, in accordance with accepted principles of pleading.

The fact that the trial court addressed the governmental immunities precept as to Lackawanna County, sua sponte, does nothing to alter our ruling. See generally Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540 (1985). We conclude, therefore, that a remand is necessary not only to rectify the initial impropriety engaged in by the trial court, but we do so to secure the benefit of the trial court’s rationale for its order granting William Murray’s motion for judgment on the pleadings. We welcome and value the insight of the trial court on an issue that has received sparse consideration by our appellate courts.

To remedy the wrongs present in the case at bar, we vacate and remand for proceedings consistent with the opinion herein written. Jurisdiction is relinquished.


text:
    497 A.2d 1346
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary T. FOOKS.
    Superior Court of Pennsylvania.
    Submitted June 20, 1985.
    Filed Aug. 23, 1985.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Alexander Hemphill, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Philadelphia County discharging the appellee, Gary F. Fooks, for violation of Pa.R. Crim.P. 1100. We reverse.

The facts with which we need to be concerned start with the Commonwealth’s filing of its petition to extend the trial date of Mr. Fooks on September 19, 1984, which was two days after the mechanical run-date under Rule 1100 had expired.

Of equal interest here is the fact that on September 9, 1984, after informal discovery was completed, the court below scheduled a half-day bench trial for December 17, 1984. This was the earliest possible date, consistent with the court’s business, that the case could be tried. The record indicates, however, that no objection was lodged by the defendant or his counsel to this scheduling, despite the fact that the trial date was beyond the Rule 1100 run-date.

It was not until the date set for trial (December 17th) that the defendant’s Rule 1100 rights came under scrutiny. The issue surfaced rather fortuitously after the court had conducted a jury waiver colloquy with the defendant, and the Commonwealth had asked to call its first witness.

Although the defendant’s counsel stated he had no pretrial motions to dispose of at the commencement of the proceedings, thereafter, he moved to have the record show, and, thus, protect his client’s Rule 1100 rights, that he felt the 4-5 months the Commonwealth’s witness/victim was in the hospital was “not an excuse for extending the rule.” To put the matter in perspective, the court decided to list the history of the case on the record. In the course thereof, it noted that the Commonwealth’s petition to extend was signed by the court two days after the run-date (see note 1, supra). Thereafter, the court cautioned the Commonwealth that it “ha[d] to get some excludable time, at least two days of excludable time chargeable to the defense in order to make the filing date timely.”

It was the court’s position that, absent excludable time, the Commonwealth’s late filing meant that it would be “out of court.” The Commonwealth disagreed and presented a three-fold argument to support its belief that the defendant should be tried.

First, the Commonwealth averred that the defendant’s failure to file a written motion in opposition to its petition, as well as his counsel’s statement at the start of the proceedings that there were no pre-trial motions to be disposed of, rendered the extension question moot, and it could not be resurrected sua sponte by the court.

Second, the Commonwealth stated that the absence of any pre-trial motion by the defendant, in conjunction with his being colloquied by the court and the Commonwealth calling its first witness resulted in a commencement of trial, and, as a result, constituted a waiver of any Rule 1100 claim.

Third, the Commonwealth proffered that the defendant failed to object at the September 4, 1984 proceeding to the trial being set beyond the run-date (to December 17, 1984) was, in its view, silent acquiescence to the extension under Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).

On appeal, the Commonwealth has elected to rest its case on the single argument, appearing at page 8 of its brief, that:

DEFENDANT WAS IMPROPERLY DISCHARGED UNDER PA.R.CRIM.P. 1100 SINCE DEFENSE COUNSEL’S ORAL “MOTION TO DISMISS” WAS MADE AFTER TRIAL COMMENCED. THE COMMONWEALTH, THEREFORE, IS ENTITLED TO TRY DEFENDANT FOR SHOTGUNNING THE COMPLAINANT.

Since the point in the judicial process where trial is considered to have begun has yet to be decided under the circumstances presented to the Court here, we will discuss the subject as a logical lead into the propriety of the discharge.

[11 In Pennsylvania, the prohibition of double jeopardy, as it relates to subsequent prosecutions, attaches in a non-jury situation when the court has begun to hear evidence. Commonwealth v. Arelt, 308 Pa.Super. 236, 241, 454 A.2d 108, 111 (1982), citing Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) (Per Nix, J., with two Justices concurring), cert. denied, Klobuchir v. Pennsylvania, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980), reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980).

However, trial begins for purposes of Rule 1100 when the jury is empaneled or voir dire or any other substantial step of trial has begun. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977). This concept has its roots in the Concurring Opinion of then Chief Justice Eagen in Lamonna. Our Supreme Court has recently reaffirmed this tenet in Jones v. Commonwealth, 495 Pa. 490, 495-496, 434 A.2d 1197, 1199-1200 (1981); viz.:

In determining when a trial “commences” for Rule 1100 purposes, this Court has been guided by the comment drafted by the Criminal Procedural Rules Committee:
It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.
Pa.R.Crim.P., Rule 1100 comment. (Emphasis supplied). In an often cited concurring opinion in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), former Chief Justice Eagen discussed the meaning of this comment:
The words ‘some other such’ immediately preceding ‘first step in the trial’ clearly indicate that the events specifically referred to in the comment are to be considered first steps in a trial for the purposes of Rule 1100, see Commonwealth v. Boyle, [470] Pa. [343], 368 A.2d 661, 666 (1977), even though not all of these events are, strictly speaking, directly involved with the determination of guilt or innocence. For example, if a case were called to trial and after determining the parties were present, the trial Judge held a hearing on a Suppression Motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principle concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the Court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt determining process is a ‘first step’ in the trial for the purposes of Rule 1100.
473 Pa. at 260, 373 A.2d at 1361 (Eagen, C.J., concurring).

We conclude that, under the particular circumstances here, the trial in the present case commenced on December 17, 1984. In doing so, preliminarily, we look to the record and find a sheet documenting the progress of the appellee’s trek through the judicial process. In the third quadrant therein is written:

Informal Discovery Complete
Waiver trial—V2 day
E.P.D.
By the Court
[Initialed signature of Judge DiNubile]

The document was dated 9/14/84. It listed the names of the court clerk, the Judge, the court stenographer, counsel for the appellee (Attorney Hemphill), and in the square reserved for “ADA” (Assistant District Attorney) was written the word “new”. Also appearing on the form, in a block reserved for such information, is the time 12/17/84. This date was the earliest possible date that the trial court could hear the appellee’s case. This was confirmed by the trial court at the December 17th proceeding, wherein it stated:

THE COURT: ... [The appellee’s case] was held for court on July 17, and the arraignment date was held on July 31, 1984. At the arraignment, the matter was listed for pretrial before me. My earliest date was 9/4/84. The pretrial is normally within a couple of weeks of the arraignment. The reason it was five weeks from the arraignment in this instance was that I was on vacation in August, and, therefore, I listed all cases that normally would have been pretried before me in August for another date, the day after Labor Day, September 4, 1984. On 9/4/84, the case was then listed for pretrial before me. Discovery was complete. It was to be a half-day waiver, and it was listed for this date, which was my earliest possible date consistent with my schedule. I list my own cases in this program, so today was the earliest possible date.

(N.T. 11-12) The appellee’s counsel, who was the same throughout, did not object to the trial court’s recitation of the chronology of the case.

Accordingly, we find that the declaration of the jurist, who presided over both the informal pre-trial discovery proceeding and the December 17th proceeding, that the case had been listed for the “earliest possible date” on his trial calendar meets the requirement of Rule 1100(c)(4) that any scheduled trial date after the expiration of 180 days need be “the earliest date possible”. See Commonwealth v. Jackson, 336 Pa.Super. 486, 490, 485 A.2d 1186, 1188 (1984) (Concurring Opinion by McEWEN, J.).

Consistent with the aforesaid, we have no reservation in holding that the appellee had ample notice that on December 17, 1984, the court had listed his case for a one-half day trial, to be preceded by a waiver of his right to a jury. This is confirmed by the following. One, the court’s initial inquiry of counsel for the appellee as to his desire to dispose of any pre-trial motions before continuing on. Counsel answered, “No, sir”. Two, the court, thereafter, conducted a jury waiver colloquy of the appellee lasting 6V2 pages. Three, the court crier read each of the four bills of information to the appellee, after which the appellee was asked how he pleaded. He answered to each question, “Not guilty”.

A jury waiver form was signed by all concerned. It was after this point that the assistant district attorney asked, “Your Honor, may I call my first witness, Charles Rowe?” The court responded, “Certainly”. Prior thereto, however, the assistant district attorney wanted the record to reflect that the defendant had been notified that the Commonwealth intended to proceed under Section 9714, 42 Pa.C. S.A., to secure a mandatory sentence following conviction for aggravated assault.

It was only after all of the preceding had transpired that counsel for the appellee announced that he wanted to preserve his client’s Rule 1100 rights. And, then, he remarked that his complaint related solely to the exclusion of time attributed to one of the Commonwealth’s witnesses, while in the hospital, from the running of the 180-day time under the Rule. In other words, it was the court that embarked on a record inquiry of the timeliness of the Commonwealth’s petition to extend.

In fact, it was the court which engaged the Commonwealth in oral argument, covering some 26 pages in the transcript, over the legal effect of the purported late filing of the Commonwealth’s petition to extend. The appellee’s contribution to this discourse came in the form of a response denying his absence at a preliminary hearing and deferring to the court’s knowledge on the law as to Rule 1100 in rebutting the arguments advanced by the Commonwealth.

We have stated on previous occasions, in the civil area of the law, which is equally applicable here, that our courts should refrain from acting as advocates for either side in a litigation. See, e.g., Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985); Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985). It is for the parties to present their respective positions on an issue. As tempting as it may be to speak for one of the parties in the hope of expediting the resolution of the matter, we serve only to cloud the role of the court as an impartial arbitrator of fact and the author of the ultimate conclusions of law when we deviate from our role.

Under the functional approach announced in Commonwealth v. Lamonna, supra, we have no hesitation in holding that the facts at bar, i.e., the reservation of the jury waiver to the time of trial, the appellee’s counsel’s denial of the disposition of any pre-trial matters at the commencement of the December 17th proceeding, the jury waiver colloquy, the appellee’s arraignment and the Commonwealth’s allowance by the court to call its first witness, reflects the “substantial” commitment of the court’s time and resources contemplated by Rule 1100 and our interpretations thereof.

The fact that the guilt-determining process was interrupted by the Commonwealth’s wish to state for the record its seeking of a mandatory sentence does not alter our determination. Since there is no evidence that the Commonwealth acted for the purpose of delay, and, therefore, to the extent that Rule 1100 was designed to prevent unnecessary prosecutorial delay, the imposition of the trial court’s drastic sanction here would serve no valid purpose. See Jones v. Commonwealth, supra.

Accordingly, the appellee’s failure to file a timely motion to dismiss prior to the commencement of trial renders his Rule 1100 claim waived, and, in effect, supercedes any alleged impropriety on the part of the Commonwealth. We find nothing in the law requiring the prosecution to perforce file a petition to extend or suffer the discharge of the defendant notwithstanding the defendant’s failure to file a motion to dismiss. See generally Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984); Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977); Commonwealth v. Gunther, 299 Pa.Super. 432, 445 A.2d 831 (1982).

Under these circumstances, we are of the view Fooks failed to raise the issue of an alleged violation of Rule 1100 until after his trial had started, and, thus, the issue is waived. See Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). To compound this waiver is the fact that appellee’s motion to dismiss was orally made, a practice which is not condoned in this jurisdiction. See, e.g., Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); Commonwealth v. Vecchione, 327 Pa.Super. 548, 476 A.2d 403 (1984). Further, it is not contended that the opportunity to file a motion to dismiss did not exist previously, or that the grounds for the motion were unknown, nor could the record support such a contention.

No other issue, other than the one treated herein, having been raised by the parties before this Court, see Commonwealth v. Drake, supra; Pa.R.App.P. 1115(a)(3), we reverse the order of the court below discharging the defendant. Jurisdiction is relinquished.

MONTEMURO, J., concurs in the result.

      . The computer read-out captioned “Criminal Transcript—Philadelphia Municipal Court” lists the date the complaint was filed as 3/19/84. However, the face of the “Complaint” indicates it was not issued ("filed") by the Judge of Municipal Court, according to his signatured-date, until 3/20/84. Nonetheless, the point to be made is that the Commonwealth’s petition to extend was filed late, be it by one or two days.


author: HESTER, Judge:

text:
    497 A.2d 1351
    Anna FAUST, Appellant, v. Joseph L. MESSINGER, Thomas Snyder and R. Benay Snyder.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Aug. 23, 1985.

      Dwight L. Danser, Easton, for appellant.
    Joel M. Scheer, Easton, for appellees.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

Appellant, a grandmother, has appealed from an order which denied her visitation rights with her grandson following his adoption. Said order also refused to reopen the proceeding which had resulted in his adoption by appellees. Her claims are based on: 1) the fact that the boy’s father killed his wife (the boy’s mother and the appellant’s daughter), 2) the allegedly intentional and malicious acts of appellees in withholding from her the child’s whereabouts as well as the pendency of the adoption proceeding, 3) the Custody and Grandparents Visitation Act [CGVA], 23 P.S. § 1001 et seq., which permits a grandparent to seek visitation of a grandchild under certain circumstances applicable to appellant, and 4) her lack of notice of the adoption proceeding which she claims violated procedural due process requirements. Despite these factors, we affirm.

BACKGROUND

Michael Snyder was born on October 6, 1979, to Joseph Messinger and Sheila Messinger. Joseph Messinger killed Sheila on June 1, 1982, and was duly convicted and sentenced to serve five to fifteen years for the aggravated manslaughter of his wife. In late 1982, Michael, then three years old, was adopted by the Snyders in a proceeding wherein Joseph Messinger relinquished his parental rights to the boy.

Approximately a year and a half later, the appellant, Anna Faust, Sheila Messinger’s mother, learned of her grandson’s whereabouts and the fact of his adoption. She filed both a complaint for custody and a petition to intervene in the adoption nunc pro tunc. At the close of the pleadings, the matters were consolidated and upon motion for judgment on the pleadings, the court dismissed her claim for custody and her request to intervene in the adoption proceeding. She has appealed from the order of dismissal.

ADOPTION

Appellant argues that appellees maliciously hid the child’s whereabouts from her, intentionally concealed from the adoption court her known interest in her grandson’s custody, and failed to notify her of the adoption proceeding. Coupled with these inequities, appellant claims that the adoption violated procedural due process requirements by terminating her rights without giving her notice of the hearing. The CGVA entitles a grandparent to seek visitation rights to a child whose parent is deceased, 23 P.S. § 1012, and an independent right to seek visitation of a child who has resided with the grandparent for twelve months or more, 23 P.S. § 1014, both of which grounds apply in this case. An adoption decree terminates the visitation rights of a grandparent regardless of their basis, 23 P.S. § 1015, so appellant claims a due process right to notice of the hearing which terminated her rights.

She bases this claim on Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972), which holds that procedural due process entitles a person whose rights may be affected by an action to be heard, and to enjoy that right, he must be notified of the proceedings. In addition, when a legally protected interest is created by statute, the provisions of the statute must be examined to determine whether or not due process applies. Ingram v. O’Bannon, 534 F.Supp. 385 (E.D.Pa.1982). It is axiomatic that the due process clause does not create the right but protects the right created by statute or other legal basis.

In this case, appellant does not rely on a right created by the Adoption Act, 23 Pa. § 2101 et seq., conceding that as a grandparent she was not entitled to notice under the provisions of the Adoption Act. Her claimed entitlement comes from the CGVA, which permits a grandparent to seek visitation but terminates grandparental visitation rights upon adoption. Two reasons compel us to deny the appellant’s due process argument.

First, it amounts to a claim that the CGVA is unconstitutional for failing to establish notice provisions which satisfy due process requirements. Such a claim is barred because it does not comply with the provisions of Pa.R. Civ.P. 235 and Pa.R.A.P. 521, requiring notice to the attorney general of a constitutional challenge to a statute. See Matter of Adoption of Christopher P., 480 Pa. 79, 90, 389 A.2d 94, 100 (1978).

Second, the entitlement claimed by appellant does not amount to one which must be protected by the due process clause. It is an entitlement only to seek visitation which will be granted or denied as the best interests of the child dictate, 23 P.S. §§ 1012, 1014. Prior to his adoption, while the statute entitled her to do so, appellant did not institute an action for visitation of her grandson, nor does she explain her failure to do so.

Even if she had obtained a visitation order prior to the adoption proceeding, however, she would stand in the same position. Under the CGVA, both the incipient right to seek visitation and any visitation rights already established by court order are extinguished upon the adoption of the child, 23 P.S. § 1015. Such evanescent rights, first protected by statute in 1982, 23 P.S. § 1001 et seq., are not ones which activate the procedural protections of the due process clause. The limited, transitory nature of grandparental visitation privileges set forth in the statute convinces us that the privileges may properly be terminated in an adoption, just as all familial ties between an adoptee and other blood relatives are severed, without notice and without hearing.

VISITATION

If appellant’s right to intervene in the adoption proceeding is denied, she claims that she is nevertheless entitled to seek visitation under the CGVA. Her argument is that since the adoption cut off her visitation rights and she “never received any notice concerning the adoption, she should continue to enjoy the benefits and rights conferred upon her by the ... Act.” Brief for Appellant at 13. After rejecting appellant’s constitutional attack on the Adoption Act, we cannot sustain her attack on the CGVA provision which terminates grandparental visitation when a child is adopted. Having held that appellant was not entitled to notice of the adoption proceeding, and thus accepting its validity, we necessarily accept the consequence: appellant’s statutory entitlement to seek visitation with her grandson ended when the adoption decree was granted.

The policy which dictates this apparently harsh result is well established. The entire body of law pertaining to adoption harmonizes in order to place an adopted child in the shoes of a natural child in all legal respects, failing only to alter the biological makeup of the child. The intention and result of the law is to enfold an adopted child in his new family so as to be indistinguishable from his new siblings in every possible respect.

Rights of inheritance are changed; parental and filial rights and duties are altered; birth records are substituted; adoption records are impounded. In every possible respect, all family relationships are thus reestablished within the adopting family and all ties with the natural family are eradicated.

“In Pennsylvania a valid adoption severs the child from its natural family tree and engrafts it upon that of its new parentage. Thereafter the child attains the status, in law, of a natural child of the adopting parents: Cave’s Estate, 326 Pa. 358, 192 A. 460 [1937].”
It is our opinion that adoptive or natural parents should have the right to select the persons with whom their child will associate as long as they properly perform their duties to the child. To take this right away from proper parents would not be for the best interest of the child.

Commonwealth ex rel. Dogole v. Cherry, 196 Pa.Super. 46, 48, 173 A.2d 650, 651 (1961). We believe that these adoptive parents should also be permitted to select the persons with whom the child will now associate in order to effectuate his best interests.

Order affirmed.

      . Her ignorance of the child’s whereabouts, rather than preventing the commencement of a custody action, would have rendered court sanetioned discovery measures in a pending action particularly valuable to her.


text:
    497 A.2d 1354
    Jay G. OCHROCH and Joan Ochroch, His Wife, Appellants, v. Mojtaba KIA-NOURY and Gloria Kia-Noury, His wife.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Aug. 30, 1985.
    Petition for Allowance of Appeal Denied Jan. 7, 1986.

      Gilbert Newman, Philadelphia, for appellants.
    Leigh P. Narducci, Norristown, for appellees.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal by appellants, Jay G. Ochroch and Joan Ochroch, from a final decree of the Court of Common Pleas of Montgomery County. The following factual background as found by the chancellor below is unchallenged by appellants:

Appellants and appellees, Mojtaba Kia-Noury and Gloria Kia-Noury, are adjoining landowners in Abington Township. In January, 1975, appellees constructed an in-ground swimming pool. In connection with the construction thereof, appellees erected a chain-link fence between the two properties and built up the grade and slope of the ground with fill and debris. The chancellor found that the fence and landfill encroached upon appellants’ property. The fill, which is visible from appellants’ pool and tennis area, was composed of, among other things, iron pins, lumber, stumps, tar paper, cinderblocks, concrete, stones and various items of rubbish and was covered with weeds and shrubs. The chancellor further found that the fill extended onto appellants’ property “to the extent of one hundred (100) feet in length, ten (10) feet in width (at its widest point) and five (5) feet in height”. The chancellor viewed the property and ordered, inter alia, that appellees remove the chain link fence which also encroached upon appellants’ property and further that

... defendant remove all debris in and upon the fill encroachment including, but not limited to, such items as iron pins, lumber, stumps, tar paper, cinderblocks, concrete, stones, weeds and rubbish
[and] ... re-grade the fill encroachment and the embankment of which it consists, and that she replant pachysandra. Evergreen shrubbery currently growing on the embankment need not be removed.

(Decree Nisi, Lowe, P.J.)

In other words, whereas appellees were required to remove the fence, they were merely ordered to “improve the appearance” of the landfill because

the relatively de minimis harm to plaintiffs’ property caused by that encroachment is outweighed by the potential cost of removal and the danger that defendant’s swimming pool would thereby lack sufficient lateral support.

(Adjudication, p. 7, Lowe, P.J.)

Appellants filed exceptions to the Decree Nisi. After argument, the exceptions were dismissed; and on December 13, 1984, the Decree Nisi was entered as a final decree. Appellants claim that the chancellor below erred in holding that the de minimis doctrine is applicable to an encroachment case where the party alleging harm did not consent or acquiesce in the encroachment and that the chancellor, in fact, erred in initially characterizing the encroachment as “de minimis” or trivial. We reverse.

Equity is the special forum for relief where there has been a trespass or nuisance of a continuing and permanent character.

Denhart v. Valicenti, 157 Pa.Super. 143, 145, 41 A.2d 884, 885 (1945).

Our scope of review in equity matters is a limited one. The chancellor’s findings of fact, affirmed by the court en banc, have the effect of a jury verdict and will not be reversed on appeal if adequate evidence is presented to support them and they are not premised on erroneous inferences and deductions or an error of law. (cites omitted) Thus, our function is not to substitute our view for the chancellor’s but, rather, to determine whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor (cites omitted). Nevertheless, conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning for (sic) underlying facts and not involving a determination of credibility of witnesses are reviewable.

Dailey’s Chevrolet v. Worster Realties, Inc., 312 Pa.Super. 275, 458 A.2d 956, 959 (1983). Appellees have no right at law or in equity to occupy or appropriate land that does not belong to them. See Scoppa v. Myers, 341 Pa.Super. 61, 491 A.2d 148 (1985); Pile v. Pedrick, 167 Pa. 296, 31 A. 646 (1895). Moreover, it has been held that

“[t]he question of expense or damage cannot be considered. The aggrieved property owner’s right is absolute. However hard his acts might be regarded, he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is entitled to a decree. The rule in such case is founded on sound reason. If damages may be substituted for the land, it will amount to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation. Here is a wrongful invasion of a positive right to real property.

Dodson v. Brown, 70 Pa.Super. 359, 361 (1918) (emphasis added). See also Ventresca v. Ventresca, 182 Pa.Super. 248, 253, 126 A.2d 515 (1956). It appears that

[i]n the improvement of their own property defendants have actually appropriated a portion of plaintiff’s land. A mandatory injunction to prevent the wrongful invasion of plaintiff’s right to the use of their property is proper.

Denhart, 157 Pa.Super. at 146, 41 A.2d 884.

There are cases where courts of equity have refused to compel removal of erections placed by defendant upon land of his adjoinder, but in every one it will be found that equitable considerations prevailed to stay the hand of the court, and remit the party injured to his remedy at law ... Neither laches, inducement, nor acquiescence on the party of the plaintiffs is alleged; nor was the trespass even an act of inadvertence or mistake on the part of defendants. Baugh v. Berdoll, 207 Pa. 420, 422 [76 A. 207] (1910) (emphasis added)

See also Soifer v. Stein, 101 Pa.Super. 135 (1930). Implicitly, the courts in Baugh and Dodson v. Brown, supra, held that there was no restriction on the plaintiffs’ recovery since there were no “laches, inducement or acquiescence.” This differs from the more recent case of Yeakel v. Driscoll where the court held that the encroachment of a fire wall was de minimis, applying the doctrine espoused by the chancellor below in the instant case, “de minimis non curat lex,” which means that “a court will not grant equitable relief to a plaintiff who seeks a decree which will do him no good but which will work a hardship on another.” Yeakel v. Driscoll, 321 Pa.Super. 238, 467 A.2d 1342, 1344 (1983). The court in Yeakel based its decision on facts indicating the plaintiffs acquiescence, express consent, as well as her actual utilization of the offending encroachment. Moreover the Yeakel panel noted that the chancellor below found no nexus between the plaintiffs asserted water problems and the encroaching fire wall so that removal of the firewall would not correct the plaintiffs alleged problem. The court held “Thus, the only benefit to be gained by plaintiff is to preserve her exclusivity to her two inches of property by forcing defendant to remove the fire wall from its present location.” Yeakel, 321 Pa.Superior Ct. at 243, 467 A.2d at 1344. Further support for its holding was found in the pertinent city codes which require a fire wall. The court therefore held that relocation of the fire wall would do plaintiff no good and be a hardship on the defendant. Indeed, the wall protected both parties.

In the instant case, there was no acquiescence, no consent, no appropriation, no utilization of the land fill. We further note that the encroachment was not so trivial in effect that appellants will fail to realize a benefit by removal of the fill since their rights to exclusive ownership and domain will be preserved and protected. The aesthetic value of their property will presumably be improved, and the parcel may be landscaped to their taste and whim.

When one intrudes upon the land of another, the latter has a choice of remedies; he may compel a withdrawal of the intruder, or he may regard the intrusion as a permanent trespass ... Except he has [sic] forfeited his right to the former remedy by conduct which would make its enforcement inequitable, he cannot be denied his privilege to pursue it.

Baugh v. Bergdoll, 227 Pa. 420, 423, 76 A. 207 (1910) (emphasis added).

Accordingly, we hold that the chancellor below erred, and we reverse the order of the lower court and remand for entry of an order consistent with this opinion.

Order reversed, case remanded and jurisdiction relinquished.


text:
    497 A.2d 1357
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert FLUELLEN.
    Superior Court of Pennsylvania.
    Submitted May 21, 1985.
    Filed Aug. 30, 1985.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Anthony D. Jackson, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

In this appeal we consider whether the trial court abused its discretion in sentencing appellee, Robert Fluellen, by unreasonably deviating from the Pennsylvania Sentencing Guidelines. We agree with appellant, Commonwealth of Pennsylvania, vacate the judgment of sentence and remand for resentencing.

On November 4, 1983, defendant/appellee was found guilty by a Municipal Court Judge of possession of a controlled substance, manufacturing a controlled substance with intent to deliver and conspiracy. He was sentenced to two and one-half to five years imprisonment on the delivery charge, a consecutive five year term of probation for conspiracy and a suspended sentence on the charge of possession.

Fluellen appealed and was tried de novo in the Philadelphia Court of Common Pleas on February 8, 1984. The Commonwealth established at trial that appellee sold three bags of cocaine to an undercover narcotics officer introduced to appellee by an informant. A search following appellee’s arrest yielded 18 additional plastic packets of a white powder containing cocaine and one packet containing quinine and reducing sugar. Fluellen was again adjudged guilty of possession of a controlled substance and manufacturing a controlled substance with intent to deliver, but acquitted of conspiracy.

On May 1, 1984, appellee was sentenced to time served (approximately six months) to twenty-three and one-half months incarceration, to be followed by three years probation and inpatient drug rehabilitation. The Commonwealth filed a petition for reconsideration of sentence on May 11, 1984. However, neither the official court file nor the lower court docket entries revealed that such a motion had been filed. For this reason, the trial court held that the Commonwealth waived its argument that the sentence imposed unreasonably deviated from the sentencing guidelines.

A copy of the petition for reconsideration of sentence, revealing its date stamp of May 11, 1984, by the Clerk of Quarter Sessions, is included in the record before us. It is accompanied by a stipulation to correct the record by the district attorney and counsel for appellee, in which the above facts are set forth. We find that appellant has sufficiently preserved this issue for our review.

One other preliminary procedural matter requires comment. The Commonwealth initiated this appeal by filing a notice as required by Pa.R.A.P. 902. Before proceeding to the merits, we must determine whether or not there is a substantial question that the sentence imposed is inappropriate under the sentencing guidelines.

[Although the Commonwealth, in seeking to appeal from the discretionary aspects of a sentence, may initiate such an appeal by merely filing a notice as required by Pa.R. A.P. 902, the appellate court, before proceeding to the merits of the issue raised by the appeal, must determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines.

Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985). As our review of the record convinces us that a substantial question exists in this case, we will permit the Commonwealth’s appeal. Id.

Although appellee’s juvenile record has been destroyed, his adult record begins shortly after his eighteenth birthday. Three of appellee’s seven prior arrests (six of which were for drug-related offenses) resulted in convictions. As the prior convictions are classified as felony drug offenses, they each represent two points in the prior record score, resulting in a total prior record score of 6. Further, since cocaine is a Schedule II drug, 35 Pa.C.S. § 780-104(2), and appellee has three prior convictions for the manufacture, delivery or possession with intent to manufacture or deliver a controlled substance, 35 Pa.C.S. § 780-115 applies, resulting in an offense gravity score of 6. The Commonwealth asserts that with these scores, the relevant range under the sentencing guidelines is a minimum sentence of 33 to 49 months imprisonment, an aggravated range of 49 to 61 months imprisonment, or a mitigated sentence of 25 to 33 months imprisonment.

As noted supra, the lower court sentenced appellee to time served (six months) to twenty-three and one-half months. On the basis of the record before us, we find that the sentence is outside the guidelines and is unreasonable. 42 Pa.C.S. § 9781(c)(3). As this court recently stated,

The guidelines channel sentencing discretion and focus appellate review which is available to both parties, on the reasonableness of deviations from the presumptively appropriate range of sentences. In sum, only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.

Commonwealth v. Hutchinson, 343 Pa.Super. 596, 599, 495 A.2d 956, 958 (1985) (emphasis added).

A reading of the sentencing transcript, and the supplemental opinion filed January 23, 1985, reveals that the lower court was chiefly concerned with Mr. Fluellen’s drug addiction. Although drug rehabilitation programs are available within our penal institutions, the trial judge in this case apparently doubts their effectiveness. This observation, though perhaps warranted, is insufficient to support the sentence imposed herein.

Robert Fluellen, at 37 years of age, was convicted on drug charges four times, and prior to the instant conviction had never been sentenced to a period of incarceration. (Reproduced Record at 6-7a, 15a). By his own admission, he participated in drug programs before, without success. Appellee admitted to participation in one such program at the sentencing hearing, while the Mental Health Evaluation done by the Department of Probation referred to “a number of Methadone programs.” (Reproduced Record at 18a). In response to questioning by the court, Fluellen revealed that not only did he use cocaine and heroin while on methadone, but he also sold it. (Sentencing Transcript at 17-18). We agree with the following observation by the Commonwealth.

Defendant has participated unsuccessfully in drug rehabilitation programs in the past. He has violated probation in the past. These measures have proven completely ineffective in curing [him] or stemming his propensity to crime. The Pennsylvania Commission on Sentencing implicitly has recognized the potential failure of light sentences in demanding that a significant sentence be imposed for a fourth drug offense.

In sum, in light of the availability of inpatient drug rehabilitation programs within our penal institutions, and because this is the only reason offered by the court in support of the sentence imposed, we believe there exists no adequate reason for deviating from the guidelines under the circumstances of this case, “and, most certainly, the sentence depreciates the seriousness of the offense.” Commonwealth v. Hutchinson, supra, 343 Pa.Superior Ct. at 600, 495 A.2d at 958. Therefore, we find that the court’s failure to follow the sentencing guidelines constitutes an abuse of discretion. Accordingly, we vacate and remand for resentencing.

Jurisdiction Relinquished.

      . On January 23, 1985, the lower court, motivated by the above-described stipulation of counsel, filed a supplemental opinion in which it addressed the merits of the issue raised by the Commonwealth.

      . Appellee could have received up to ten years imprisonment under the statutory provisions. See 35 Pa.C.S. §§ 780-113(f)(2) and 780-115(a).

      . In response to the assistant district attorney’s suggestion that appellee could receive rehabilitation for his drug addiction while incarcerated, the trial judge stated,
      My concern is how good are the programs, the drug treatment programs that they have in the institution that he would be sent to?
      I know the State institutions are not all that great and the local institutions are not as good as the State institutions in terms of inpatient—it’s going to be inpatient drug rehabilitation.
      (Sentencing Transcript at 5).