author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    494 A.2d 443
    Ronald C. BARNHART, Appellant, v. Alma P. BARNHART. Ronald C. BARNHART v. Alma P. BARNHART, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed June 7, 1985.

      Jordan D. Cunningham, Harrisburg, for appellant (at No. 166) for appellee (at No. 180).
    Theodore B. Smith, III, Carlisle, for appellant (at No. 180) for appellee (at No. 116).
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WICKERSHAM, Judge:

This appeal and cross-appeal result from an order of the Court of Common Pleas of Cumberland County divorcing the parties, distributing their property, and granting alimony to wife.

Ronald Barnhart [hereinafter “husband”] and Alma Barn-hart [hereinafter “wife”] were married on February 16, 1960 and were separated on June 26, 1979, when husband left the marital home. On April 28, 1981, husband filed a divorce complaint, in which he requested the equitable distribution of their property. On May 7, 1981, wife filed an answer and counterclaim seeking alimony pendente lite, counsel fees, costs and expenses, and alimony. Following a hearing on April 23, 1982, the Honorable Harold E. Sheely entered an order in favor of wife for alimony pendente lite and counsel fees. A master’s hearing was held on June 9, 1982. The master filed her report on August 9, 1982, to which wife filed exceptions. Following argument before the court en banc, the Honorable George E. Hoffer issued an order and opinion partially granting and partially denying wife’s exceptions. Husband now appeals from that order and wife cross-appeals. Husband questions the grant of alimony to wife; wife questions the court’s failure to include husband’s pension as marital property; and both parties question the division of the marital home. Neither party disputes the granting of the divorce itself.

First, both parties, for different reasons, are unhappy with the lower court’s equitable distribution of the marital home. The master and the lower court both found that, by an oral agreement at the time of separation, husband agreed to relinquish his rights and interest in the marital residence in return for his wife’s promise never to proceed against him for support. In accordance with this agreement, husband conveyed his interest in the home by deed in July 1979, and wife withdrew her pending claim for support shortly thereafter. When making this agreement, the parties did not speak directly to each other, but used an intermediary, Claire Swauger, wife’s son from a previous marriage, who testified to the circumstances of the agreement.

The lower court found that the property distribution agreement between the parties in July or August 1979 was well supported by the evidence. Wife had little choice but to accept the home and she lost nothing by her promise not to proceed with a support action against her unemployed husband. The master recommended that the transfer of marital assets pursuant to the separation agreement be approved by the court as an equitable distribution of marital property. The court disagreed, however. In September 1980, husband returned to work and because wife was experiencing serious financial difficulties, she began a new support action in October 1980, which eventually resulted in a bi-weekly support order being entered against husband. The lower court found that by successfully prosecuting a support action, wife abrogated the distribution agreement. As a result, the marital home returned to the status of marital property, which the court then distributed to the parties as tenants in common, with exclusive possession in wife for as long as she shall live there. If wife decides to sell the home, the proceeds are to be divided equally between the parties.

In determining the propriety of property distribution and of alimony, we use the abuse of discretion standard of review. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.

Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984).

After careful consideration, we are not persuaded by wife’s arguments (1) that the conveyance of the home to her by husband was not the result of an agreement, but was a gift, and thus not marital property subject to distribution, or (2) that wife should have received the entire home as a result of equitable distribution. Neither are we persuaded by husband’s argument that the separation agreement should be specifically enforced, despite wife’s breach of that agreement. We suspect husband’s desire to have us declare the home non-marital property and thus not subject to equitable distribution relates more to his desire to avoid alimony than a true disinterest in owning half of the home. The lower court clearly examined the factors under section 401(d) of the Divorce Code, and we see no abuse of discretion in his distribution of what he determined to be the parties’ sole asset — the marital home.

Second, husband questions the grant of alimony to wife, claiming that the court abused its discretion by not considering whether there was an actual need for it. The master found that wife possessed sufficient property to provide for her reasonable needs, based upon the master’s recommendation that wife retain complete and sole ownership of the home, and thus denied alimony. In contrast, the lower court, in distributing the home as marital property rather than as separate property, held that wife lacked sufficient property to provide for her reasonable needs and because of her physical infirmities, was unable to support herself through appropriate employment. Thus, the court felt that an award of alimony was appropriate.

The record discloses that wife is 50 years old and husband is 49 years old. Wife is totally disabled as a result of three strokes,. The resulting serious physical disabilities discount the possibility of future employment. She receives a social security disability pension of $318.00 per month. She receives an additional $160.00 per month in food stamps because the parties’ 19 year old son, his wife, and baby also reside in the marital home. Her expenses amount to approximately $568.00 per month. Husband is in good health and earns $24,000.00 per year as a government employee. His net pay is approximately $607.00 per week, including a 7% deduction for retirement benefits. His income safely exceeds his expenses, which he shares with his employed girlfriend. Husband left wife to cohabit with this long-time girlfriend. Wife’s only asset is half of the marital home with the accompanying debt of the mortgage. Husband is virtually debt-free. Considering the above in light of section 501 of the Code, we cannot say that the lower court abused its discretion in awarding $90.00 per week alimony to wife.

Finally, wife complains that the lower court erred in finding that husband’s pension, acquired during marriage and prior to separation, was not marital property subject to equitable distribution. We find her position to have merit.

Section 401(e) of the Divorce Code, 23 P.S. § 401(e), defines marital property as “all property acquired by either party during the marriage,” and before separation. There are a number of statutory exceptions, but a pension is not one of them. Husband does not question that during the marriage and prior to separation, approximately $12,000.00 in vested pension funds accrued. He does not even contest that such pension funds accrued during the marriage are subject to equitable distribution. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984); Willkow v. Willkow, 26 Pa.D. & C.3d 74 (1983); Sorbello v. Sorbello, 21 Pa.D. & C.3d 187 (1981). His position is that because the pension no longer existed at the time the divorce complaint was filed, it could not be distributed as part of an order of equitable distribution. Husband left wife in June 1979, at which time he quit his job with Sperry-Univac, withdrew his $12,000.00 pension, and used the money to pay some debts and his expenses from June 1979 until September 1980, when he again became employed. His divorce complaint was filed in April 1981.

While both the master and the lower court excluded the pension from marital property since it was no longer in existence, we find that this exclusion is in direct conflict with the equitable distribution sections of the Divorce Code. Such a rule would completely nullify the protection of the marital property distribution provisions of the Code since it would mean that any property acquired during marriage and subject to equitable distribution could be removed from such distribution by a spouse merely consuming it after separation and before the divorce. We cannot allow a spouse to so easily defeat the purpose and spirit of equitable distribution.

Thus we find that the lower court erred in failing to include the value of husband’s pension as an element of marital property. It is therefore necessary for us to remand to enable the lower court to determine the proper distribution of the pension under section 401(d) of the Code. We recognize that this additional element may very well result in a reevaluation of the other economic issues herein.

Affirmed in part and reversed in part. This case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority that the trial court did not abuse its discretion by making an award of alimony or by including the marital home for purposes of effecting equitable distribution of marital assets. I am also agreed that the case may be remanded to permit the trial court to consider whether the husband’s pension was marital property. I disagree, however, with the majority’s conclusion that the trial court must find the pension to be marital property.

When Ronald Barnhart terminated his employment with Sperry-Univac in June, 1979, he withdrew his pension, which then had an approximate value of $12,000.00.. He used some of this money to pay an encumbrance on a Dodge automobile which, pursuant to agreement, he then transferred to his wife. She traded the Dodge for another car, which was subsequently repossessed. The balance of the pension fund was used by Barnhart to support himself until he obtained other employment in September, 1980. This action in divorce was not commenced until April 28, 1981. The trial court held that the proceeds of the pension had been expended and were no longer in existence at the time of the divorce action. Therefore, the court held, they did not constitute marital property. The majority holds that the trial court erred and that the pension proceeds were marital property for purposes of equitable distribution. I would hold that the record is inadequate to permit such a determination.

Section 401(e) of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. § 401(e), provides as follows:

For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(5) Property which a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.

It is clear that the proceeds of Barnhart’s pension were disposed of prior to commencement of the present divorce action. Whether this money is nevertheless to be deemed marital property must be determined, therefore, according to whether “disposition” was made “in good faith” and “for value.”

The majority’s concern that a spouse not be permitted unilaterally to remove property from availability for equitable distribution by consuming the property after separation and before divorce is alleviated by the requirements of “good faith” and “for value.” Without proof that the property was disposed of in good faith and for value, the property is subject to equitable distribution. The purposes and spirit of equitable distribution are more nearly preserved by applying and following this clear mandate of section 401(e)(5).

The trial court made no findings other than that the pension proceeds were not in existence. The sum of $1,300.00, according to the testimony, had been used to pay an encumbrance on a motor vehicle, and the vehicle had then been transferred to appellee. On the surface, at least, this disposition would seem to have been “in good faith” and “for value.” The indication is that the balance of the pension fund was used by Barnhart to support himself until he obtained new employment with the United States Government in September, 1980. Assuming, without deciding, that the balance of this money was disposed of for value, there remains to be determined whether disposition was accomplished in good faith.

Upon remand, I would direct the trial court to take testimony and make findings as to whether the.proceeds of Ronald Barnhart’s pension fund were disposed of “for value” and “in good faith.” To the extent that they were disposed of for value and in good faith, those moneys are not to be deemed marital property for purposes of effecting equitable distribution. If any portion thereof was not disposed of for value and in good faith, however, that portion must be deemed marital property and is subject to equitable distribution.

      . The original opinion and order from which the parties appealed was issued on December 29, 1982. On January 4, 1983, the lower court entered an order vacating the order of December 29, 1982, because husband had not complied with an April 28, 1981 order directing payment of counsel fees before any final decree could be entered. Apparently, husband then paid the counsel fees because on April 15, 1983, Judge Hoffer issued another order, reinstating the order of December 29, 1982.

      . Husband also agreed to convey and did in fact convey to wife a 1975 automobile. This conveyance has not been contested by either party in these appeals.


source: Caselaw Access Project

author: DEL SOLE, Judge: JOHNSON, Judge,

license: Public Domain

text:
    494 A.2d 447
    COMMONWEALTH of Pennsylvania v. Allen MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed June 7, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

The following issues are presented for our review: 1) Whether Appellant should have been charged and convicted of retail theft, 18 Pa.C.S. § 3929, instead of theft, 18 Pa.C.S. § 3921, and receiving stolen property, 18 Pa.C.S. § 3925; and 2) Whether there was sufficient evidence to convict for third degree felony robbery as defined in 18 Pa.C.S. § 3701(a)(l)(v). For the following reasons, Appellant’s conviction for robbery is reversed and the case is remanded to the trial court for resentencing on Appellant’s remaining convictions.

The facts in the instant case are undisputed. On February 25, 1982, Appellant entered a supermarket in Philadelphia, walked to the meat counter, picked up a “family-sized” steak and shortly thereafter placed the steak under his jacket. As Appellant proceeded to exit the supermarket with the concealed steak, a plainclothes store security guard, who had witnessed Appellant’s activities, approached Appellant and identified himself. The Appellant then threw the steak to the floor and attempted to flee. Before Appellant could escape, he was restrained by the security guard at which time a struggle ensued in which the guard was injured. Appellant was taken into police custody at the supermarket and charged with third degree felony robbery, theft, receiving stolen property and simple assault. On August 12, 1982, Appellant was found guilty on all counts, and following the denial of post-verdict motions was sentenced to two concurrent terms of probation. This timely appeal ensued.

The first issue raised by Appellant may be disposed of summarily. This Court has held on at least two occasions that a defendant charged with theft by unlawful taking waives the contention that he or she should have been charged with retail theft when the defendant fails to make a pretrial application to quash the information on that basis. Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980); Commonwealth v. Williams, 252 Pa.Super. 587, 384 A.2d 935 (1978). A review of the record reveals that while Appellant did file an omnibus pretrial motion nowhere in that motion did he move to quash the theft and receiving stolen property charges in the information on the grounds that he should have been charged with only retail theft. Thus, this contention is waived.

Appellant’s second contention is not as easily disposed. At issue is the interpretation of section 3701(a)(l)(v) of the Pennsylvania Crimes Code, 18 Pa.C.S. § 3701(a)(l)(v), which is a portion of the statute defining the crime of robbery. Section 3701 of the Crimes Code defines robbery as follows:

§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
(b) Grading. — Robbery under subsection (a)(l)(iv) is a felony of the second degree; robbery under subsection (a)(l)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.

18 Pa.C.S. § 8701.

Appellant contends that a conviction for third degree felony robbery under section 3701(a)(l)(v) requires that the theft of property be from the person of another and that the stolen property, the steak, was not taken from another’s person including the person of the security guard. Appellant further argues that the property must literally be taken from the person’s body and not merely from the presence of the person or from an area under the person’s control. Appellant also contends that the force requirement of section 3701(a)(l)(v) was not met since the assault of the security guard was not done in the commission of the theft but rather in the flight after Appellant abandoned the stolen property. For these reasons then Appellant argues that the evidence was insufficient to sustain a conviction for third degree felony robbery.

Conversely, the Commonwealth contends that section 3701(a)(l)(v) does not require that the property be taken from the person’s body but that a conviction can be maintained so long as the property was taken from the person’s presence or an area under the person’s control. The Commonwealth argues that the steak was taken in the presence of the security guard or at least was taken from an area under his control and that these facts are sufficient to satisfy the “taking from the person” requirement. In addition, the Commonwealth takes the position that the force requirement of section 3701(a)(2) which permits force used in the flight after a theft to satisfy the force requirement for robbery even if force was not used in the actual commission of the theft. While we agree that Appellant’s literal interpretation of the phrase “taking from the person of another” must be rejected, we simply cannot agree with the Commonwealth that the steak in this case was taken from the person of another justifying a conviction under section 3701(a)(l)(v). Accordingly, Appellant’s robbery conviction must be reversed.

Before addressing the merits of the above issue, we note the following. First, the interpretation of the phrase “taking from the person of another” is a case of first impression under the Pennsylvania Crimes Code. While there are Pennsylvania appellate decisions which address a similar issue involving the common law crime of robbery and while it will be seen that those decisions are helpful, we are not expressly bound by those holdings. Second, in interpreting the phrase “taking from the person of another” under section 3701(a)(l)(v), we are aware that we are bound to accept the plain meaning of a statute and are not free to discard that plain meaning to achieve some desired result. 1 Pa.C.S. § 1928(b)(1). However, it is well settled that strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s intent should be disregarded. Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974). In addition, this Court has held that good sense and practicality are always a consideration in statutory construction and that a penal statute should receive the most reasonable and sensible interpretation. Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). With these considerations in mind, we now address the issue at hand.

Appellant urges this Court to adopt the literal or plain meaning of the phrase “taking from the person of another” by limiting it to taking from a person’s body. However, such an approach is extremely narrow and not a reasonable interpretation of that phrase. While there is no legislative history on the enactment of section 3701(a)(l)(v) and no case law under section 3701(a)(l)(v), there is case law in Pennsylvania pertaining to common law robbery which holds that a robbery may be committed by a taking from the presence of control or another as well as from the person’s body. Commonwealth v. Crow, 303 Pa. 91, 154 A. 283 (1931); Commonwealth v. Dantine, 261 Pa. 496, 104 A. 672 (1918). We find this case law applicable in light of the Pennsylvania Supreme Court’s recent holding in Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984), that section 3701(a)(l)(v) is a reinstatement of the common law standard for robbery in addition to the other statutorily created categories of robbery. The common law approach is also persuasive because common sense dictates that a person need not be in actual physical possession of property to have it taken from his person and we can envision numerous hypothetical situations to which such an approach would apply. The issue, however, in the instant case is whether the observance of a theft in a retail store of store property by a store security guard or employee per se satisfies the requirement of a “taking from the person of another” under section 3701(a)(l)(v). We cannot interpret section 3701(a)(l)(v) so broadly.

It is readily apparent that the most common crime intended to fall under section 3701(a)(l)(v) is purse snatching, while it certainly is not the only scenario which could come under that statute. In the instant case, there was no purse snatching nor any type of similar situation, but simply a theft in a retail store observed by a store security guard. Were we to adopt the Commonwealth’s proposed interpretation of the phrase “taking from the person of another” as it applies to the fact in the instant case, it would lead to the absurd result that a robbery would result every time a retail theft is observed by a store security guard or employee. Such an occurrence is simply not a robbery as contemplated under section 3701(a)(l)(v). Retail theft cannot become robbery merely because someone to whom property is entrusted observes a theft of that property. This is not to say that there can never be a robbery under section 3701(a)(l)(v) arising out of a retail theft. We hold only that there was no robbery under the facts as presented to this Court.

In conclusion, because we find that the Commonwealth has failed to show that there was a “taking from the person of another” it has failed to prove all the elements for robbery under section 3701(a)(l)(v). Thus, Appellant’s conviction for robbery must be reversed. However, since we have determined that Appellant’s convictions for theft and receiving stolen property must stand and because Appellant did not challenge his simple assault conviction on appeal, we remand for resentencing on those convictions.

Appellant’s conviction for robbery is reversed and the case is remanded to the trial court for resentencing on Appellant’s convictions for theft, receiving stolen property and simple assault. Jurisdiction is not retained.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring:

I join in the Court’s determination that appellant has waived his right to argue that he should have been charged with retail theft, rather than with theft by unlawful taking. I also join in the conclusion that the facts here involved are insufficient to sustain a conviction for robbery under 18 Pa.C.S. § 3701(a)(l)(v).

Since the undisputed facts of this case do not involve the physical taking or removal of property from the person of another by force, but involve merely a simple case of shoplifting, I would reverse without seeking to define the parameters within which a conviction under § 3701(a)(l)(v) might, in the future, be sustained.

I join in the reversal of the robbery conviction and the remand for resentencing.

      . Since we find that there was no "taking from the person of another" under 18 Pa.C.S. § 3701(a)(l)(v), we need not address the issue of whether Appellant’s assault of the security guard would satisfy the force requirement under section 3701(a)(l)(v).

      . There is a fuller discussion of the crime of common law robbery and the enactment of the robbery statute under the Pennsylvania Crimes Code and specifically the enactment of 18 Pa.C.S., § 3701(a)(l)(v) in Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984).

      . We are precluded from considering whether the facts in the instant case would satisfy the elements for a robbery conviction under any of the other enumerated classes of statutory robbery because Appellant was charged only with third degree felony robbery at trial. Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979).


author: JOHNSON, Judge:

text:
    494 A.2d 451
    Leon M. MARTIN, Appellant v. ITM/INTERNATIONAL TRADING & MARKETING LTD., William M. Erbe and David F. Dunn.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed June 7, 1985.

      William J. Cassidy, Lancaster, for appellant.
    Harry A. Dower, Allentown, for appellees.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Leon M. Martin, seeks review of the trial court’s order which granted Appellees’ motion to strike Appellant’s complaint.

On April 22, 1982 Appellant and Appellee, ITM/International Trading & Marketing, Ltd. (hereinafter “ITM”) entered into an agreement calling for Appellant to advance $18,000 to ITM for the specific purpose of purchasing gold bars. In return, Appellant was to receive a demand note for the sum advanced, plus the right to receive a return on his investment of 25% of the profit. The agreement contained, inter alia, the following language:

14. If any dispute should arise under this Agreement that the parties themselves do not settle, the dispute shall be submitted to binding arbitration under the Rules of the American Arbitration Association to be held in Philadelphia, Pennsylvania.

R. at 12a.

Appellant advanced the $18,000 to ITM, but sought to withdraw his acceptance on January 3, 1983 by sending, pursuant to Section 207(m) of the Pennsylvania Securities Act of 1972, a Notice of Withdrawal which demanded the return of his “$18,000 plus $1,500 additionally lost plus interest” (R. at 13a). ITM refused and Appellant filed his complaint in the Court of Common Pleas of Lehigh County.

ITM moved to strike Appellant’s complaint. The motion was granted. The trial court, in its order striking the complaint, cited paragraph 14 of the agreement in question and concluded that the dispute should be resolved in the first instance through arbitration.

On appeal, Appellant contends that an agreement to arbitrate issues involving alleged violations of the Pennsylvania Securities Act of 1972 is unenforceable and violative of the Act. Under the facts presented, we agree.

Section 507 of the Pennsylvania Securities Act (70 P.S. § 1-507) states:

Any condition, stipulation or provision binding any person acquiring any security to waive compliance with any provision of this act or any rule or order hereunder is void.

Appellant argues that this section invalidates any arbitration clause in an agreement which is covered by the Pennsylvania Securities Act.

Before addressing the question of the applicability of the arbitration clause, we must first determine whether the agreement in question is a “security” and thus covered by the Pennsylvania Securities Act of 1972. Section 102(t) of the Act [70 P.S. § l-102(t) ] defines “security” in the following manner:

“Security” means any note; stock, treasury stock; bond, debenture; evidence of indebtedness; share of beneficial interest in a business trust; certificate of interest or participation in any profit-sharing agreement; collateral trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting trust certificate; certificate of deposit for a security; limited partnership interest; certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as or having the incidents of a “security”; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. All of the foregoing are securities whether or not evidenced by written document. “Security” does not include: (i) any beneficial interest in any voluntary inter vivos trust which is not created for the purpose of carrying on any business, or (ii) any beneficial interest in any testamentary trust, or (iii) any insurance or endowment policy or annuity contract under which an insurance company admitted in this State promises to pay a sum of money (whether or not based upon the investment performance of a segregated fund) either in a lump sum or periodically for life or some other specified period, or (iv) any certificate issued under section 809 of The Insurance Company Law of 1921, act of May 17, 1921 (P.L. 682), as amended. (Emphasis added).

This definition of “security” is very similar to the definitions of a “security” which are set forth in the Securities Act of 1933 and the Securities Exchange Act of 1934. Both of these Federal acts also define the term “security,” in part, as meaning an “investment contract”.

No Pennsylvania appellate case has held that an agreement similar to the instant agreement is an “investment contract” and thus a “security” under the Pennsylvania Securities Act of 1972. We can derive some guidance from Federal case law, however.

The Supreme Court, in S.E.C. v. Howey, 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244, 1249 (1946), set forth the following classic definition of an “investment contract” under the 1933 Act:

[A]n investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party ...

See also Lino v. City Investing Co., 487 F.2d 689 (3rd Cir.1973).

In the instant case, Appellant invested $18,000 in the hope of receiving 25% of the profits. He was not required to perform any duties and the April 22, 1982 agreement specifically indicated that he was not a partner. (R. at 18a). We are convinced that, on these facts, the agreement between Appellant and ITM is an investment contract and, therefore, a “security” under the Pennsylvania Securities Act of 1972.

We now turn to Appellant’s argument that paragraph 14 of the April 22, 1982 agreement is unenforceable because of Section 507 of the Pennsylvania Securities Act. Section 507 is practically identical to Section 14 of the Securities Act of 1933 which states:

Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this title or of the rules and regulations of the Commission shall be void.

15 U.S.C. § 77n. Section 14 of the Securities Act of 1933 was at issue in our supreme court’s decision in Moran v. Paine, Webber, Jackson & Curtis, 422 Pa. 66, 220 A.2d 624 (1966). That case involved a dispute over a margin account where the margin agreement stated that disputes arising out of the contract would be determined by arbitration. Both parties agreed to proceed with arbitration to resolve the dispute. It was not until Mrs. Moran, the plaintiff, received an unfavorable decision that she first argued that the arbitration clause in the margin agreement was void and unenforceable. While our supreme court did uphold the arbitration award, the court’s holding was based on the plaintiff’s voluntary agreement to proceed with the arbitration process with knowledge that the dispute could be resolved in a court of law rather than before a board of arbitration.

The Moran court, however, did cite with approval the United States Supreme Court decision in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). Wilko held that agreements for future arbitration of disputes arising under the Securities and Exchange Act of 1933 are void as contrary to the purposes of the Securities Act. See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Moore, 590 F.2d 823 (10th Cir.1978); Miller v. Schweickart, 405 F.Supp. 366 (D.C.N.Y.1975).

In the instant case, since Appellant never sought to have this dispute arbitrated, the language in Section 507 of the Pennsylvania Securities Act precludes arbitration absent voluntary agreement of the parties to the contrary. Paragraph 14 of the April 22, 1982 agreement is, therefore, unenforceable under Section 507 of the Pennsylvania Securities Act.

Reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of December 5, 1972, P.L. 1280, No. 284, as amended (70 P.S. § 1-207).

      . 15 U.S.C. § 77(b)(1).

      . 15 U.S.C. § 78c(a)(10).


author: POPOVICH, Judge: SPAETH, President Judge, CAVANAUGH, Judge,

text:
    494 A.2d 454
    Emily KEIPER, Surviving Spouse and Heir of Leon L. Keiper, Deceased, for the Use of Leon L. Keiper (Dec’d), Ray B. Keiper (Dec’d), Joye Keiper, Allen A. Keiper (Dec’d), Glendo-ra G. Keiper, Fame Keiper Elwine, Individually and as Heirs of Sarah A. Keiper (Dec’d), Appellants at No. 3040, v. Burton H. KEIPER, Deceased, and William Elwine, Executor of the Estate of Burton H. Keiper, Deceased, Appellants at No. 3284.
    Superior Court of Pennsylvania.
    Argued May 7, 1984.
    Filed June 7, 1985.

      Mark S. Love, Stroudsburg, for appellants (at No. 3040), for appellees (at No. 3284).
    Anna C. Tiracchia, Stroudsburg, for appellant (at No. 3284).
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, CIRILLO, MONTEMURO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This appeal presents the narrow issue of whether a premature entry of confession of judgment renders the judgment void or merely voidable. We hold that the defect is voidable, and, under the circumstances of this case, must reverse the action of the lower court in striking the judgment.

This matter involves cross-appeals, one from the order granting the petition to strike the judgment, and the other from the lower court’s order dismissing the petition to open the judgment.

The somewhat unusual facts are these: On December 22, 1944, judgment was confessed and entered on the following note:

$15,800.00 East Stroudsburg, Pa., Dec. 22, 1944 1 year after date I promise to pay to the order of Leon L. Ray B. Joye J. Allen A. Glendora G. and Fame Keiper and my wife Sarah A. Keiper Fifteen Thousand Eight Hundred Dollars at the
EAST STROUDSBURG NATIONAL BANK without defalcation for value received, and if not paid upon maturity.....hereby authorize the Prothonotary to enter judgment for said sum with costs and Attorney’s commission, and do hereby waive the right of inquisition, exemption and stay of execution.
Burton H. Keiper [L.S.]
-[L.S.]

We emphasize to the reader that the prothonotary was authorized to enter judgment only if the sum was not paid upon maturity, i.e. one year later, and it is undisputed that the judgment was indeed entered prematurely. Three amicable revivals were filed subsequently, and a partial release from judgment was filed enabling the original debtor to convey certain real estate. Burton H. Keiper died on July 3, 1977. When plaintiff filed a praecipe for a writ of revival, only then, after 34 years of record, was the judgment attacked. After an answer and preliminary objections by the parties, judgment was entered against the defendants on the Writ of Revival. In the meantime, however, defendants filed petitions to open and to strike the judgment. Finally, on November 18, 1981, the lower court dismissed the petition to open judgment for lack of an explanation for the delay in filing the same, but the court did grant the petition to strike the judgment holding that the prothonotary acted without authority since there was no — and could not be at that early stage — affidavit of default. Moreover, the court held that the defective judgment was not susceptible to curative amendment, and, by necessary implication, the judgment was void — not merely voidable — when prematurely entered 37 years earlier, three amicable revivals notwithstanding. The lower court also ruled that laches was not a defense since a void judgment is a nullity without legal effect. In dismissing the petition to open, however, it was held that defendants made no attempt to explain the delay in presenting it.

The court below in its comprehensive opinion examined the cases which bear on our conclusion instantly. Nevertheless its analysis of the effects of a defective judgment exposes once again the difficulty in resolving the issue, a difficulty which seems always to arise out of the rather imprecise use of words in describing a judgment being assailed. By labelling a judgment “defective” or “irregular” or “invalid” one does not dispose of the ultimate issue of whether the defect, irregularity or invalidity renders the judgment void or voidable, but rather merely begs the question.

Instantly, it is conceded that the judgment having been entered prematurely was defective on its face. The defect is clear, but is it a defect that renders the judgment void, that is, of no effect, potency or value, irretrievably and incurably lost? Or is the judgment rendered merely voidable at the instance of the defendant?

We hold that established precedent mandates an affirmative response to the latter question.

Apparently the leading case which has been cited over the years with approval is Osterhout v. Briggs, 37 Pa.Super. 169 (1908). There, as here, judgment was confessed on a note prior to maturity although the warrant authorized confession of judgment only after maturity. One day after maturity plaintiff again confessed judgment and at the same time filed a praecipe for a writ of scire facias. Defendant thereupon filed his motion to strike both judgments, and both judgments were stricken. On appeal this court ruled as follows:

The first judgment having been prematurely entered was irregular and voidable at the instance of the defendant, and the appellee having proceeded in the proper manner to avoid this judgment, it was properly stricken off: Eddy v. Smiley, 26 Pa.Superior Ct. 318; Allen v. Krips, 119 Pa. 1 [12 A. 759]. The action of the plaintiff in causing the first judgment to be entered was a complete execution of the power conferred by the warrant of attorney and resulted in the entry of an actual judgment in a court having jurisdiction of the subject-matter; this judgment it is true was irregular and voidable at the instance of the defendant only, but it was not absolutely void, and as against parties other than the defendants it was not even voidable; Crosby v. Massey, 1 P. & W. 229; Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Pa. 272; Harres v. Commonwealth, 35 Pa. 416; Kohler v. Luckenbaugh, 84 Pa. 258; Harper v. Biles, 115 Pa. 594 [8 A. 446]. The power conferred by the warrant of attorney was exhausted by the entry of the first judgment, although that judgment was irregular and liable to be defeated by the defendants in case they took proper action to that end and did not estop themselves by acquiescence. The second judgment was, therefore, likewise irregular and the court below committed no error in striking it off; Philadelphia v. Johnson, 23 Pa.Superior Ct. 591; s.c. 208 Pa. 645. (Emphasis supplied) Id. at 170, 171.

Precisely one year later, our Supreme Court, faced with a closely similar fact situation to Osterhout in Commonwealth v. Massi, 225 Pa. 548, 74 A. 419 (1909), confirmed the correctness of Osterhout:

In the present case the court below relied also upon Osterhout v. Briggs, which does rule this case very closely. The facts are very much the same, except that the judgment there was entered on an ordinary judgment note, while here it is on a bail bond.

We see no merit in the suggested distinction that the judgment in the case at bar was void, and not voidable merely. It was voidable; but, if the defendant had not raised the question that it was prematurely entered, it would have stood upon the record as a valid judgment. As regarded parties other than the defendants, it was not even voidable. This principle is clearly set forth in the opinion of the Superior Court in Osterhout v. Briggs, 37 Pa.Super.Ct. 169, supra, and is sustained by the cases there cited. Id. 74 A. at 420. (Emphasis supplied)

Subsequently, International Harvester Co. v. Tuscarora Township, 43 Pa.Super. 410 (1910) and Pasco Rural Lighting Co. v. Roland, 88 Pa.Super. 245 (1926) relied on Osterh-out for the proposition that a premature entry of judgment renders the judgment voidable only.

However, we do not arrive at our decision without addressing and distinguishing the seemingly conflicting language and conclusion in Sterling Electric and Furniture Co. v. Irey, 189 Pa.Super. 450, 150 A.2d 363 (1959) where the court, rather ingenuously one might observe, said, “We feel that the law is too well settled for any lengthy discussion of the subject.” There the question before this court was whether a judgment entered on a note authorizing entry of judgment in event of default was void where no averment of default was filed and the date of payment as provided in the note was not reached. This court in Sterling held that there must be an averment of default before the warrant to confess judgment can be exercised and a valid judgment entered. Later in the brief opinion, this court said that laches do not run against a void judgment.

Thus, it is clear that the Sterling court incorrectly characterized the defective judgment there as a void judgment rather than a voidable judgment. But the issue in Sterling was not dependent on whether the defect rendered the judgment void or voidable because the parties seeking the striking of the judgment were the defendants, and the void/voidable distinction was of no moment to them. The question hinged on whether there was a defect on the record by virtue of the absence of an averment of default, a defect vulnerable to an attack by the debtor. Instantly, the defendants are not the original debtor. However, this does not foreclose the estate of the decedent/Burton H. Keiper from presenting a defense on his behalf as a party litigant.

Continuing, we see that in Sterling, this court properly affirmed the striking of the defective judgment not because the judgment was void (as it was there unfortunately but irrelevantly labelled) but because the defect rendered the judgment voidable at the instance of the defendant.

This vital distinction vividly appears in Industrial Valley Bank and Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499; 428 A.2d 156 (1981) where again the issue was whether a claimed default was a condition precedent to the entry of confessed judgments. In reaffirming the principle that a judgment entered prior to default without an averment thereof when the warrant requires such is invalid, nowhere in this court’s opinion are the words void and voidable used. For the proper disposition of the issue in Voluck, the distinction between a void and voidable judgment was not necessary; whether there was a defect in the judgment was the crucial inquiry. So that, as to these defendants, if it were determined that a defect was apparent on the record, the judgments would have been stricken and opened, respectively.

We conclude, therefore, that in 1944 when judgment was entered admittedly prematurely, the invalidity or defect rendered the judgment voidable at the instance of the obligor. In like fashion, the amicable actions reviving the voidable judgment would preclude the original obligor/decedent from asserting, as a defense warranting a motion to strike, the premature entry of judgment. Cf. Wilkes-Barre Deposit & Savings Bank v. Hermann et al., 334 Pa. 560, 565, 6 A.2d 496, 498 (1939) (“Here the delay has been more than twelve years; two amicable sci. fa.’s have been executed by appellee[/co-obligor]. * * * The doctrine of laches should be applied. * * * By the issuance of a sci. fa. and judgment thereon, or by the filing of an amicable sci. fa., the validity of the original judgment by confession is recognized and, in the absence of strong equitable requirements, its voidable character is lost.”).

As stated in Osterhout, the premature entry of judgment was voidable and subject to “be[ing] defeated[/stricken] by the defendants[/original debtors] in case they took proper action to that end and did not estop themselves by acquiescence,.” Here, the successor in interest to the original debtor’s defense, the estate of the decedent, is foreclosed/estopped, as the decedent would be, from attacking the validity of the initially voidable judgment because of “acquiescence” in the form of the several agreements to revive the confessed judgment of 1944. Wilkes-Barre Deposit & Savings Bank v. Hermann et al., supra. The lower court’s order being to the contrary, it is hereby reversed and the judgment is reinstated.

Whether the denial of petition to open judgment was a proper one is accordingly easily resolved. Here we apply the time-honored test cited in Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967), i.e., 1.) the petition must have been promptly filed; and 2.) a meritorious defense must have been averred. Instantly, notwithstanding the defendants’ awareness of the judgment for almost three decades no adequate excuse has been offered for the long delay in filing the petition to open judgment. Consequently, we find no abuse of discretion by the court below in denying the petition to open.

Order reversed in part and affirmed in part.

SPAETH, President Judge, files a concurring opinion, joined by WIEAND, J. and MONTEMURO, J.

CAVANAUGH, J., files a concurring and dissenting opinion.

SPAETH, President Judge,

concurring:

I agree that the order denying the petition to open should be affirmed, and on this issue I join the majority. I also agree that the order granting the petition to strike should be reversed, but my reasons for this conclusion differ from the majority’s.

In concurring in Tice v. Nationwide Life Insurance Co., 284 Pa.Super. 220, 425 A.2d 782 (1981), I expressed the opinion that our decision in a case such as this should not depend upon whether the judgment is characterized as “void” or “voidable.” I recognize that for many years our decisions have depended — as both the majority’s opinion and Judge CAVANAUGH’S concurring and dissenting opinion do depend — on how the judgment is characterized. As the Restatement (First) of Judgments (1942) codified the prevailing view, a void judgment, that is, one rendered by a court lacking jurisdiction or concerning which certain procedural requirements are lacking, is a legal nullity for all purposes and subject to direct or collateral attack at any time. Id. at § 11. See also Romberger v. Romberger, 290 Pa. 454, 457, 139 A. 159, 160 (1927) (void judgment is “a mere blur on the record [which it is] ... the duty of the court of its own motion to strike off, whenever its attention is called to it.”); Centennial Bank v. Germantown-Stevens Academy, 277 Pa.Super. 134, 139, 419 A.2d 698, 700 (1980) (“Where a judgment is confessed against a party who has not authorized the same, ... the judgment is void. Being void it is a nullity and without legal effect.”); 10 Standard Pennsylvania Practice 405 (“[a] void judgment is a nullity and has no legal effect.”) Nevertheless, the better approach, I suggest, is the approach proposed by the drafters of the Restatement (Second) of Judgments (1982). They propose that judgments should not be automatically avoided simply as a consequence of being labelled “void,” but rather that

... the judgment may be subject to avoidance and hence being treated as a legal nullity, depending on the nature of the defect concerning the particular requirement, the opportunity that the complaining party had to challenge the defect, and whether there has been reliance on the judgment since its rendition.
Id. at Ch. 2, 19.

The drafters explained this substantial shift from the approach taken by the drafters of the Restatement (First) by noting that although the approach they proposed was more “complex”, “[t]his complexity reflects not uncertainty about the importance of finality but recognition that a broad array of circumstances can be relevant in deciding whether the point of finality should be deemed to have been reached.” They continued:

The question of validity comes up only if the plaintiff, at least assertedly, has done something seriously wrong in attempting to pursue a legal remedy (failing to give proper notice, choosing the wrong court, etc.). Furthermore, the question comes up in connection with an attack on a judgment only if the defendant has omitted to raise the defect until after judgment had been rendered. Thus, both sides may have blundered. In the cases involving such situations, there are often indications that presentation of the merits was also mishandled. Not infrequently, the question of validity is evidently being litigated by a successor to the counsel who was originally involved. The point of all this is that the question of validity often arises in a context in which there is also serious doubt about the quality of the adjudication in other respects. As a result, it often can be said with equal meaning that a judgment ought to be avoided because it is invalid and that it ought to be regarded as invalid because it should be avoided. It seems better frankly to recognize this relationship than to attempt wholly to isolate the concept of validity as such.
Id. at Ch. 2, 20.

The Restatement (Second) thus would require that a court determine the effect of a judgment not by deciding whether to call it “void” or “voidable,” but rather by deciding, upon an analysis of all surrounding circumstances, whether the law ought to recognize the judgment as final.

I remain of the opinion that we should adopt the approach proposed by the Restatement (Second). Doing so, I have no difficulty in concluding that the judgment here should be recognized as final, which is to say, that the petition to strike it should have been denied. Whether or not the prothonotary’s premature entry of the judgment was a substantial defect, the judgment should be recognized as final both because of the length of time it went unchallenged, and because of the manifest acquiescence by defendants’ decedent in its validity. The original note was signed on December 12, 1944, and it was, by its terms, to mature one year later. Judgment was confessed and entered the same day. (R.R. at la, 7a) Only in 1978, thirty-four years later, and one year after defendants’ decedent died, did defendants first challenge the validity of the judgment. (R.R. at 17a) Prior to that date, however, defendants’ decedent had consented three times, without litigation, to the revival of the judgment. (R.R. at 2a— 1/9/50; 3a (4/18/68); 4a (1/18/73)). In addition, he had sought and received a partial release from the judgment one year prior to his death, to enable him to convey land encumbered by the note. (R.R. at 4a, Brief for Plaintiff at 4) On none of these four occasions was any attack made on the validity of the original judgment. In these circumstances, plaintiffs reasonably relied on the validity of the judgment, and it ought not “be subject to avoidance and ... treated as a legal nullity.” Restatement (Second) of Judgments, supra at Ch. 2, 19.

Accordingly, I should affirm the trial court’s order denying the petition to open but reverse its order granting the petition to strike.

WIEAND and MONTEMURO, JJ., joins this concurring opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I join in the majority’s affirmance of the order by the court below denying the petition to open judgment. I dissent from that part of the majority opinion reversing the order striking the judgment. The majority finds that the entry of judgment prior to default was merely voidable, and not void and that the court below erred in striking the judgment. The majority relies on several early cases decided in the period from 1908 to 1926. The court dismisses the decision in Sterling Electric and Furniture Co. v. Irey, 189 Pa.Super. 450, 150 A.2d 363 (1959) by observing that the Sterling court “incorrectly characterized the defective judgment there as a void judgment rather than an voidable judgment.” The majority does acknowledge that there is “seemingly conflicting language and conclusion” in Sterling, supra.

The recent decision in Centennial Bank v. Germantown Stevens Academy, 277 Pa.Super. 134, 139, 419 A.2d 698, 700 (1980), summarizes the situation before us as follows:

Where a judgment is confessed against a party who has not authorized the same, however, the judgment is void. Being void, it is a nullity and without legal effect. Hence, the passage of time does not enter into a consideration of its validity. For this reason, laches does not prevent appellant from attacking the judgment. Haverford Township School District v. Herzog, 314 Pa. 161, 171 A. 455 (1934); Romberger v. Romberger, 290 Pa. 454, 139 A. 159 (1927); Peoples National Bank of Reynoldsville v. D. & M. Coal Co., 124 Pa.Super. 21, 187 A. 452 (1936). See also: Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 391 A.2d 614 (1978).

In the instant case the original judgment entered in 1944 was invalid as there had been no default when it was entered. In Kolf v. Lieberman, 282 Pa. 479, 128 A. 122 (1925) the written obligation contained a warrant authorizing entry of judgment “after default”. Judgment was entered without an averment of default. The Supreme Court held that the judgment should have been stricken and stated at 282 Pa. 482, 128 A. 123: “[I]n entering judgment under a warrant of attorney it is a well-settled rule that the authority given thereunder must be strictly followed or judgment cannot be sustained.” Although one may authorize entry of judgment by confession “he is certainly entitled to have the exercise of the power confined most strictly to the terms of the authorization so as to prevent its misuse or abuse.” Park-Main Co. v. Fayette National Bank and Trust Company, 397 Pa. 75, 79, 152 A.2d 714, 716 (1959). See also Sterling Electric and Furniture Co. v. Irey, 189 Pa.Super. 450, 150 A.2d 363 (1959). A court is bound to strike off a judgment improper on its face as an abuse of the authority of the warrant. Grady v. Schiffer, 384 Pa. 302, 121 A.2d 71 (1956). As noted in Industrial Valley Bank and Trust Company v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 503, 428 A.2d 156, 159 (1981): “If a warrant of attorney in a confession 'of judgment clause authorizes entry of a judgment by confession only after default, a judgment entered prior to default or without an averment of default is invalid.” (Emphasis added). The entry of the judgment in this case was invalid and the defense of laches does not apply to the petition to strike. Centennial Bank v. Germantown Stevens Academy, 277 Pa.Super. 134, 419 A.2d 698 (1980).

I would hold that the entry of a judgment by confession prior to the maturity of a note, where the confession clause authorizes entry of judgment if not paid upon maturity, renders the judgment void. In such circumstances the defense of laches, an equitable defense, is not applicable to a petition to strike, and the court below properly granted the petition to strike.

Accordingly, I would affirm the order of the court below in its entirety.

      . The plaintiffs below, Emily Keiper, surviving spouse and heir of Leon L. Keiper, deceased, for the use of Leon L. Keiper, deceased, Ray B. Keiper, deceased, Joye Keiper, Allen A. Keiper, deceased, Glendora G. Keiper, Fame Keiper Elwine, individually and heirs of Sarah A. Keiper, deceased, have appealed from that part of the order striking the judgment. The defendants below, Burton H. Keiper, deceased, and William Elwine, Executor of the Estate of Burton H. Keiper, deceased, have appealed from that part of the order dismissing the petition to open. Since both plaintiffs and defendants below have filed cross appeals, in order to avoid confusion we will refer to the parties as plaintiffs and defendants rather than as appellants and appellees in this opinion.

      . Albeit the defendant/executor is not the original debtor, this fact is not dispositive of whether he can act now on behalf of the decedent.
      It must be conceded that Burton H. Keiper was a party to the action begun in December of 1944 with the confession of judgment. Consequently, at the time of Burton’s death, the cause of action involving him had commenced. Given the aforesaid, we go on to observe that under Pa.R.Civ.P. 2351, a "successor” is defined as anyone "who by operation of law, election or appointment has succeeded to the interest or office of a party to an action." (Emphasis added) Further, Pa.R.Civ.P. 2352(a) and (b) provides the method for the substitution in a "pending action” of a "successor” to a "party to a pending action."
      In the case at bar, because William Elwine is the personal representative of the estate of Burton H. Keiper, he is clearly a "successor” to an interest of Burton in a "pending action” so as to permit him to assert any defense which could have been proffered by the decedent/Burton H. Keiper. Compare Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); First Nat. Bank of Verona v. Walsh, 349 Pa. 241, 37 A.2d 130 (1944).

      . The necessary implication of the Voluck decision is that had there been a pre-condition of default, the defect would have rendered the judgment voidable and would have been stricken at the instance of the defendants. This court used the word "invalid”, a comprehensive adjective that does not differentiate as to whether the invalidity renders the judgment void or voidable.

      . Since I do not rest my decision on whether the judgment here is characterized as "void” or "voidable,” see infra, I do not address the issue of whether we ought to reconsider the rule that laches may not run against a void judgment. See, e.g., Strickler v. United Elevator Co., 257 Pa.Super. 542, 391 A.2d 614 (1978).

      . This is the designation of the parties chosen by the majority. At 258 n. 1.

      . The trial court relied on Green Ridge Bank v. Edwards, 247 Pa.Super. 231, 372 A.2d 23 (1977) (SPAETH, J.), where we held that a subsequent revival of a "void” judgment cannot render the judgment enforceable. This is but a corollary of the rule that a void judgment is a legal nullity for all purposes. When, however, as I believe we now should do, we rest our decision not on whether we label a judgment "void,” but rather upon an examination of all the circumstances of the judgment, then a defendant's acquiescence in the validity of the judgment becomes a relevant consideration, just as does the length of time the judgment has remained unchallenged. See Restatement (Second) of Judgments, supra at Ch. 2, 19-20.

      . In the instant case, when the judgment was entered there was no averment of default and none could properly have been filed. "Legal authorities dating back to the early days of the Commonwealth” have pointed out the necessity of an averment of default. Roche v. Rankin, 406 Pa. 92, 96, 176 A.2d 668, 671 (1962). “If the warrant of attorney authorizes the entry of judgment ‘after default’ it is necessary to file an averment of default before the entry of judgment.” Rose v. Cohen, 193 Pa.Super. 454, 459, 165 A.2d 264 (1960).


author: POPOVICH, Judge:

text:
    494 A.2d 461
    COMMONWEALTH of Pennsylvania v. William Donald REIDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed June 7, 1985.
    Petition for Allowance of Appeal Denied Dec. 10, 1985.

      William D. Reider, appellant, in propria persona.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County summarily denying appellant’s, William Donald Reider’s, fourth Post-Conviction Hearing Act petition. 19 P.S. § 1180-1 et seq., as amended 42 Pa.C.S.A. §§ 9541-9551. We affirm.

As seems to be the case with most multiple PCHA petitions, the result we reach requires a sifting through a maze of petitions and unsuccessful appeals peppered with claims of ineffectiveness. The present case is no exception.

Our analysis begins with appellant’s plea of guilty to rape, indecent assault and involuntary deviate sexual intercourse on March 14, 1978, in Dauphin County. On May 8, a sentence of 8-20 years imprisonment was imposed. No appeal was taken. Rather, on June 6, appellant filed a pro se PCHA petition. Counsel from the public defender’s office was appointed and submitted an “Application For Reconsideration of Sentence” on June 7 claiming, in part, that:

2. On May 8, 1978, after review of a pre-sentence investigation report which had been requested by Cumberland County authorities when Petitioner faced similar charges in that county, Petitioner was sentenced [in Dauphin County] ... to a term of imprisonment of not less than eight (8) nor more than twenty (20) years.... 3. ... the pre-sentence report prepared at the direction of Cumberland County contained misinformation which was detrimental to him, and that a separate report should have been prepared for use in Dauphin County.

In response, the Commonwealth noted that appellant had “fail[ed] to allege what misinformation appeared in the Cumberland County Pre-Sentence report”, and sought to have the application denied. The PCHA court did deny the relief requested by order dated June 12.

Undeterred, counsel from the public defender’s office filed an amended PCHA petition seeking, this time, to have the plea withdrawn. The claims related to prior counsel’s “assurances]” to appellant that “he would receive the same sentence from th[e Dauphin] Court as he had received in Cumberland County ... [and] that his attorney did not exercise his right to discovery under Pennsylvania Rule of Criminal Procedure 305 and that, had he done so, certain pre-trial motions could have been filed.” The June 29 amended PCHA petition was denied on July 24.

On August 21, 1978, appellant filed an appeal from the dismissal of his second PCHA petition. Thereafter, on November 9, 1978, appellant sought the appointment of private counsel to aid in his appeal since a conflict of interest with counsel from the public defender’s office was alleged. The court complied. The end result was a remand by Superior Court directing that:

The lower court shall appoint counsel to represent appellant, and shall conduct a hearing at which the court shall consider: first, the allegations in appellant’s first petition that guilty plea counsel was ineffective; and second, the allegations in appellant’s second petition, as it may be amended, that guilty plea counsel was ineffective, to the extent that the court determines that appellant’s failure to include these allegations in his first petition is attributable to the ineffectiveness of appointed counsel who represented appellant on his first petition.

Commonwealth v. Reider, 267 Pa.Super. 359, 366, 406 A.2d 1081, 1085 (1979) (Footnote omitted).

Pursuant to Reider, the lower court appointed private counsel and ordered that an evidentiary hearing be held to review “the ineffectiveness of trial counsel in all respects as asserted by Reider in both his PCHA petitions.” See Memorandum and Order of Judge Lipsitt dated September 5, 1979, at page 2. Toward that end, appellant and his guilty plea counsel gave testimony.

During the course of guilty plea counsel’s testimony, he recalled receiving a letter from appellant, after sentence had been imposed, dated May 19, 1978, and marked Commonwealth’s Exhibit No. 3. A portion of the letter was read into the record and revealed the following concerns of appellant regarding the sentence; to-wit:

“Dear Mr. Goldstein, after reading my pre-sentence investigation, I now realize why I got eight to twenty years. There were a couple lies [sic] and anything that would have been in my favor was held out of the pre-sentence altogether.”

Guilty plea counsel noted that he “responded to that letter.” However, we have no insight as to what was communicated to appellant regarding the allegedly “couple lies” in the presentence report. Further on in his testimony, guilty plea counsel admitted that he first learned of appellant’s prior criminal record “during the Cumberland County trial”, which took place prior to the Dauphin County proceedings. Guilty plea counsel was quick to point out, however, that “[t]hey were minor offenses regarding check cashing ... problems in Ohio____” So, except for the Ohio charges, the only record Mr. Reider had, at least as far as guilty plea counsel knew, related to the sex offenses brought in Cumberland and Dauphin Counties.

The thrust of the PCHA hearing dealt with claims of guilty plea counsel’s ineffectiveness, all of which were asserted in hopes of invalidating the Dauphin County plea. Thus, it was in this context that mention was made of the presentence report. From our review of the record, the accuracy of the report was discussed purely to reconstruct what transpired after the entry of the plea, and not as a basis for assailing guilty plea counsel’s stewardship. This fact is borne out by the content of the PCHA court’s opinion denying appellant’s contentions, i.e., no reference is made to the correctness of the presentence report in responding to each of appellant’s allegations seeking to have counsel labelled ineffective and his plea invalidated. This is consistent with appellant’s efforts to have the plea, and not the sentence, revoked under the guise of ineffectiveness.

Following the denial of appellant’s PCHA petition, counsel filed an appeal. During the pendency of the appeal, appellant submitted another pro se PCHA petition contending that “false information was contained in [his] pre-sen-tence investigation ... which lead the Honorable ... William W. Lipsitt to misinterpret the said information.” The petition was denied as “premature”, and, as an aside, the court remarked that the same issue had been raised in appellant’s application for reconsideration of sentence. In both instances the court observed that the petitioner failed to allege what misinformation appeared in the presentence investigation.

Even after this Court affirmed the lower court’s order, see Commonwealth v. Reider, 306 Pa.Super. 629, 452 A.2d 66 (1982), appellant filed his fourth pro se PCHA petition attacking the competency of all of his prior attorneys. He states it as follows:

Bruce D. Foreman, the defendant’s Court-appointed counsel in the defendant’s second PCHA Petition, was ineffective for failing to raise the defendant’s allegation that Mr. Goldstein [ — guilty plea and sentencing counsel] failed to move that information in the pre-sentence report was in error. Mr. Foreman further was ineffective for failing to raise the issue that Ms. Zilli [ — 1st PCHA counsel] was ineffective for not properly investigating the same. And finally, Mr. Foreman failed to raise the same in the defendant’s appeal to the Superior Court of Pennsylvania and/or the Supreme Court of Pennsylvania. Although it might be stated that since Mr. Foreman failed to raise the same in the lower Court, he did not have jurisdiction to raise the issue in the Superior Court; but in light of the fact that the defendant did raise the issue in his PCHA Petition, counsel’s responsibility was to develop and investigate the issue, therefore Mr. Foreman must be held as ineffective for not raising the issue that the pre-sentence report contained false and/or misleading information.
lie $ * * * #
The defendant will point out, and show, in this petition, what false or misleading information was contained in the defendant’s presentence investigation report.
* # * Sit * #
Concerning the false or misleading information in the presentence investigation, the defendant would refer this [PCHA] Court to Exhibit G attached hereto (Transcript of Sentencing Proceedings, dated May 8, 1978, 7 pages). On page 3 of this exhibit (G), lines 15 and 16, the Honorable Judge states: “Do you know that he [appellant] has a rather extensive record which does involve sexual overtones?” After the defendant informed his Counsel (Mr. Goldstein) that he had no prior sexual charges or convictions, other then [sic] that presently in Cumberland County, and counsel referring the same information to the Court, the Honorable Judge then stated (lines 22 thru 24): “Perhaps that is it. The presentence was taken from Cumberland County. I thought that I saw something differently here.” Then the Court states (page 3, line 30, and page 4, lines 1 thru 5): “I have in my notes, and I don’t know — I just know that he had eight arrests and seven convictions. Now, I notice that this is on the report again. I don’t know whether this includes everything in Cumberland County and Dauphin County. That’s what I have in my report, that he has eight arrests and seven convictions.”
# * # * # *
* * * The defendant submits that he has only one prior conviction which was in the State of Ohio (insufficient check charge) which did not include any sexual overtones. Since the defendant has never seen the exact presentence report that th[e] Court used in the defendant’s case, the defendant ... refer[s] to a ... copy of the presentence report from Cumberland County, since Dauphin County’s report was derived from the same. Attached is Cumberland County’s presentence report marked Exhibit H (6 pages).
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The defendant submits that with the above, the presen-tence investigation report as written prejudiced the defendant, and that the information that the Honorable Judge Lipsitt had, stated that the defendant had eight prior arrests and seven prior convictions, all of which had sexual overtones, when infact [sic] the defendant had no prior sexual charges, had a detrimental effect in the outcome of the defendant’s sentence.
With all of the above, the defendant submits that he should be resentenced without the use of false or misleading information.

Without the appointment of counsel, the PCHA court, by opinion and order dated September 7, 1983, denied appellant’s petition. In doing so, the PCHA court conceded “us[ing] the presentence report prepared in Cumberland County.” Thereafter, an appeal was perfected.

Counsel for appellant challenges the competency of his predecessors in failing to question the purportedly inaccurate presentence report. He seeks a remand for either re-sentencing or an evidentiary hearing on appellant’s PCHA petition.

At first blush, it may appear that appellant’s Dauphin County sentence was the product of impermissibly tainted information. In fact, if nothing more appeared of record other than what has been recounted to this stage of the opinion, we would be inclined to grant appellant the relief he seeks and remand for resentencing on the strength of those cases he cites to us, e.g., Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Commonwealth v. Maxwell, 280 Pa.Super. 235, 421 A.2d 699, 703 (1980) and Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980). However, a close reading of the cases cited, in conjunction with the facts at bar, leads us to a different conclusion.

For example, a reading of Townsend, Maxwell and Cowan reveals that all make mention of the impropriety of sentencing an accused on the basis of “untrue” or “inaccurate” information. What appellant neglects to point out, and what we find to be pivotal, is the fact that in each of the three cases the element of “reliance” by the sentencing court as to the untrue or inaccurate information was required as a precondition to remanding for resentencing. Our Supreme Court has stated it thusly:

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

Commonwealth v. Bethea, 474 Pa. 571, 580, 379 A.2d 102, 106-107 (1977).

In accordance with Bethea’s standard directing us to “review all of the judge’s comments”, we have examined the sentencing transcript, as well as the opinion of the most recent PCHA court, to ascertain if the judge, who in this instance happens to have presided over both proceedings, relied upon misinformation.

No one disputes the reference by the sentencing court to appellant’s multiple arrests (8) and convictions (7). However, of importance here is the fact that such criminal activity, be they true or fabricated, had no impact upon the ultimate sentence imposed. To illustrate, at the time set for sentencing, the court noted that as to the Dauphin County offenses (rape, involuntary deviate sexual intercourse and indecent assault),

The serious part of this case was that [appellant] forced these acts by the use of a gun. I don’t know which was worse the rape or the involuntary deviate sexual intercourse. Both acts were both just repulsive that I don’t see how the Court can take it lightly. It really just cannot.
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I see no reason at all why the sentence that I have in mind should not be imposed. I can’t imagine a worse rape or involuntary deviate sexual intercourse.

Albeit the court may have been aware of the complained-of information, we are not persuaded, from a reading of the entire sentencing record, that the court relied upon such information in entering the sentence it did upon appellant. This conclusion is reinforced by the court’s denial of any such impact in its opinion dismissing appellant’s fourth PCHA petition, wherein it wrote:

Nevertheless, regardless of the [presentence] report, ... the sentences as imposed were fair and were based on justifiable reasons.
His [appellant’s] conduct in the cases for which he was sent to prison warranted the sentences imposed. Any errors in the presentence report were certainly not of such nature as to have any effect on the sentences as given.

Thus, in light of the judge’s express statement that the claimed errors in the presentence report had no “effect on the sentences as given”, appellant’s challenge to the order of the PCHA court falls short of its mark. Cf. Commonwealth v. Brown, 328 Pa.Super. 215, 220, 476 A.2d 969, 971 (1984) (“... in light of the trial judge’s express statement that he looked exclusively to the evidence ‘without any reference to any other question’ dealing with appellant’s arrest record in rendering his verdicts, appellant’s claim cannot prevail. See Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983).”).

Accordingly, finding that appellant’s PCHA petition revolves around challenges to his sentence, our conclusion that no error was committed by the sentencing court renders meritless appellant’s ineffectiveness of counsel claims and dispenses with the need to remand for either re-sentencing or an evidentiary hearing on his PCHA petition.

Order affirmed.

LIPEZ, J., concurs in the result.

      . This being the first occasion appellant is represented by counsel other than counsel whose stewardship is being assailed, the matter is properly before us for review. See Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982). Further, any prejudice appellant may have suffered by having his PCHA petition dismissed without the prior appointment of counsel has been remedied by, the assignment of appellate counsel to assist him in his appeal. It requires mentioning that nowhere does appellate counsel complain of her inability to examine the entire record relating to appellant’s case, nor does she ask for a remand to allow her ample time to file a proper appeal embracing all relevant claims associated with her client’s case.
      Rather, from a review of the brief filed by appellant’s counsel, we perceive no shortcomings or hastiness in the preparation of the brief. Accordingly, this lends support to our review of the appeal without the need for a remand. See Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983).


author: PER CURIAM:

text:
    494 A.2d 467
    COMMONWEALTH of Pennsylvania v. Michael Robert WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1984.
    Filed May 10, 1985.
    Petition for Allowance of Appeal Granted Dec. 27, 1985.

      Albert P. Massey, Jr., Paoli, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CIRILLO, BECK and CERCONE, JJ.
   PER CURIAM:

Appellant was convicted of arson endangering persons, arson endangering property, burglary, theft by unlawful taking, theft by receiving stolen property, criminal conspiracy and three counts of criminal attempt — criminal homicide. The court sentenced appellant to ten (10) to twenty (20) years on the arson counts; five (5) to ten (10) years on the burglary conviction, and five (5) to ten (10) years on each of the three attempt counts. All sentences were to run consecutively for an aggregate term of thirty (30) to sixty (60) years. Sentence was suspended upon the theft by unlawful taking and conspiracy counts. The court found that receiving stolen property merged with the other theft count. Appellant then perfected this appeal.

On appeal, appellant raises three contentions, each challenging in some way the legality of the multiple sentences imposed. Appellant’s first argument is that his convictions for Arson Endangering Persons merged, for sentencing purposes, with his three convictions for Criminal

Attempt (Criminal Homicide). The merger question has always been a difficult one to resolve. The test for determining whether one offense merges with another for sentencing purposes was initially outlined in the Pennsylvania Supreme Court case Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-5, 21 A.2d 920, 921 (1941):

The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in the same transaction’ but is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are ‘successive’ does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge as, e.g., larceny is merged in robbery, and assault and battery is merged in murder, or they may be two distinct crimes which do not merge. (Emphasis in original).

In order for one crime to necessarily involve the other, the essential elements of one must also be the essential elements of the other. Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981). See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We must, then, examine the statutory elements of the crimes involved. Arson Endangering Persons, a felony of the first degree, occurs when a person “intentionally starts a fire or causes an explosion, whether on his own property or that of another, and thereby recklessly places another person in danger of death or bodily injury.” 18 Pa.C.S.A. § 3301(a) (1973). Criminal Attempt occurs “when, with intent to commit a specific crime, [a person] does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901. “A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 Pa.C.S.A. § 2501(a).

In merger of sentence cases, we not only focus on the commonality of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed both criminal acts with the same essential elements necessary to commit both crimes, in which case there will be a merger and only a single sentence may be imposed. Commonwealth v. Cadogan, 297 Pa.Super. 405, 443 A.2d 1185 (1982). The facts of the present case which must be set forth before the merger issue can be finally and fully decided are as follows. The appellant shared an apartment in West Chester County, Pennsylvania with one Gerald Jones. Shortly after midnight, on April 2, 1978, the appellant and Jones walked from their apartment to a house some four to five blocks distant, the residence of James and Eleanor Latta, and their son Peter. Upon arriving at the Latta house, the defendant cut the wires connecting the Latta telephone to a utility pole, removed a screen from a window on the first floor, and gained access to the interior of the house through the window. During all of this, the Lattas were upstairs asleep.

While inside the house, Jones asked the appellant if anyone was home and he replied affirmatively. When Jones asked appellant what would happen if someone came downstairs, appellant replied that he would kill them. In his possession, appellant had a nine-inch hunting knife.

From the house, appellant and Jones appropriated a quantity of personal property belonging to the Lattas, left the house with the property, returned to their apartment, and there deposited the property. The appellant and Jones then returned a second time to the Latta house on foot, again gaining access through the same window, and repeated their earlier activities, taking personal property from the house to their apartment.

Intending to return to the Latta house for a third time, the appellant awakened one Darrell Hopkins who was then sleeping in appellant’s apartment and the three departed, again entering the Latta house through the window. Appellant then told Jones that he intended to set the house on fire, as the Lattas were “going to pay for what was happening” to appellant’s brother.

The three selected additional property and Jones and Hopkins left the house carrying such property with them and waited on the street for appellant, who remained inside.

Appellant thereupon went to the basement of the house and started a fire under a table, in or near a box of kindling. He then joined his companions on the street, advising them that he had started a fire. The three then departed for the apartment with the additional loot.

The Lattas were awakened by the persistent barking of the family dogs and the smoke alarm. Although the three Lattas escaped unharmed, the house was extensively damaged.

Applying the merger principles as previously set forth, we hold that the lower court erred in imposing separate sentences for the crime of arson endangering persons and for each of the criminal attempt (criminal homicide) crimes. After the Commonwealth had completed its proof of the crime of attempted murder, it also completed its proof for the crime of Arson Endangering Persons.

As appellant himself revealed, he intended to set the house on fire to retaliate against the Lattas; they were “going to pay for what was happening” to appellant’s brother. The arson and attempted homicide are not separate crimes. The facts establish that, in practical effect appellant committed but one single criminal act. We note additionally that in his instructions to the jury the Judge limited the crime of Criminal Attempt Homicide to Attempted Murder of the First Degree. According to the statutory section for Murder of the First Degree, 18 Pa.C.S.A. § 2502(a), “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” With this in mind, the Judge instructed that before the jury could convict appellant of attempted murder of the three victims that they were required to find by proof beyond reasonable doubt that appellant, by starting the fire, specifically intended to murder each one of the victims.

As the crimes merge for sentencing we vacate the judgments of sentence as to the Criminal Attempt and Arson Endangering Persons. Because it is not clear from the record whether the imposition of the three sentences for criminal attempt (criminal homicide), the lesser crime, influenced in some way the sentence imposed for Arson Endangering Persons we remand for sentencing on the arson conviction. See Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980); Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Judgments of sentence for Criminal Attempt (Criminal Homicide) and Arson Endangering Persons are vacated. Case is remanded to the lower court for resentencing on the arson conviction. Jurisdiction is relinquished.

      . The court found that the two arson counts merged.

      . This case has taken a tortured route to this court. For the sake of this appeal we need not review the intervening procedural maze between appellant’s conviction and our present review.

      . According to 18 Pa.C.S.A. § 905, Grading of Criminal Attempt, “attempt [is a crime] of the same grade and degree as the most serious offense which is attempted ... An attempt ... to commit murder of the first degree or a felony of the first degree is a felony of the second degree.” Instantly, the attempt was to commit murder of the first degree. The record establishes the requisite specific intent to kill. See Commonwealth v. Ash, 482 Pa. 590, 394 A.2d 479 (1978). Therefore, the grading for each of appellant’s three attempt (criminal homicide) convictions is that of a felony of the second degree. Moreover, the trial judge limited his instructions to the jury upon the crime of criminal attempt (criminal homicide) to attempted murder of the first degree.

      . Although appellant’s brother was then hospitalized, there is no testimony or other evidence in the record connecting such circumstances to the Lattas.

      . The other issues raised by appellant which we need not address are: Whether the imposition of sentences for Criminal Attempt (Criminal Homicide) and Arson Endangering Persons violated 18 Pa.C.S.A. § 906.
      Whether imposition of three individual sentences for Criminal Attempt (Criminal Homicide) was unlawful.

      . Although the court below held that two of the arson counts merged, the recent Pennsylvania Supreme Court case of Commonwealth v.

        Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), proves the court wrong. Frisbie holds that the imposition of multiple sentences upon a defendant whose single unlawful act injures multiple victims is not violative of the double jeopardy clause of the Fifth Amendment. Frisbie, of course, is also applicable to the criminal attempt charges.


author: SHIOMOS, Judge:

text:
    494 A.2d 470
    Frederick J. BAIER, Appellee, v. Anna P. BAIER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed June 7, 1985.
    James L. Beck, Pittsburgh, for appellant.

      Robert B. Marcus, Pittsburgh, for appellee.
    Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   SHIOMOS, Judge:

Following refusal of the Commonwealth of Pennsylvania Public School Employee’s Retirement System (Retirement System) to participate in a property settlement agreement, appellant filed a petition for equitable relief which was denied on September 14, 1983. Appellant’s exceptions to the court’s denial were dismissed on October 7, 1983, and this appeal followed on October 18, 1983.

Appellee filed a letter stating that he does not contest appellant’s efforts in seeking enforcement of the property settlement agreement.

The parties were divorced on May 6, 1983, and a property settlement agreement was incorporated into the divorce decree. Pursuant to the terms of that agreement, the appellee was to pay alimony to the appellant; his obligation to pay was secured by a promissory note. Appellee pledged his pension account with the Retirement System as collateral to secure the note.

The issue presented to us is whether 24 Pa.C.S.A. § 8533 prohibits the pledge of a pension account with the Commonwealth of Pennsylvania Public School Employee’s Retirement System to secure an obligation to pay alimony?

We adopt the majority opinion of Justice Larsen in the recent case of Young v. Young, 507 Pa. 70, 488 A.2d 264 (1985). While the Young case dealt with the obligation to pay alimony rather than equitable distribution, it is the opinion of this Court that all of the essential elements are the same.

Therefore, the order of the lower court dismissing appellant’s exceptions is reversed and the case remanded for further proceedings consistent with this position.


author: DEL SOLE, Judge:

text:
    494 A.2d 471
    Frank ZOTTOLA and Virginia Zottola, his wife, and Mario Zottola and Janet Zottola, his wife, v. Arthur VENTURINO and Lucy Venturino, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed June 14, 1985.
    W. Thomas Laffey, Jr., Pittsburgh, for appellants.

      Before DEL SOLE, HESTER and FEENEY , JJ.

       Judge John M. Feeney, Judge of the Court of Common Pleas of Allegheny County is sitting by designation.

   DEL SOLE, Judge:

The present dispute centers around a parcel of land located in Hampton, Pennsylvania, which was determined to belong to the Zottolas (% interest) and the Venturinos, Appellants (Vs interest). The Zottolas built a garage on the property, and dissension developed between the parties. The disagreement resulted in the Zottolas filing a complaint in equity requesting partition of the property held as joint tenants with Appellants. A counter-claim was filed by Appellants on May 7, 1982, under Pa.R.C.P. 1556. After the court held a preliminary hearing, an Order was entered on June 24, 1983, and was labeled “Findings”, and ordered that the land be partitioned according to the separate interests of the parties and also required a private sale under Pa.R.C.P. 1558. The Appellees, following Pa.R.C.P. 1563(b), filed an objection to the private sale on July 5,1983. As the majority owners of the property, the Appellees requested that the property be awarded to them subject to payment to Appellants of their share of the garage and land’s valuation. Appellants took no action from the June 24 Order (either party may take a direct appeal as of right from an order directing partition, Pa.R.App. 311(a)(6), but no exceptions are permitted, Pa.R.C.P. 1557.) The court, in essence, granted Appellee’s objections on August 30, 1983, by issuing the “Final Decree” in which the property was awarded to the Appellees providing that payment was made to the Appellants for the valuation of their share which the court would determine. Neither party took an appeal or filed exceptions from the August 30, 1983 Order. After Appellants refused to accept payment from the Appellees, injunction proceedings were instituted. The Court, on November 21, 1983, ordered Appellees to make full and final payment through the Prothonotary. On December 21, the appeal was taken by the Venturinos from the November 21 Order. The merits of the appeal do not address the injunction Order dated November 21, instead, Appellants attack the Final Order of August 30 which awarded the property to the Appellees. Appellees have made a motion to this Court to quash the appeal as untimely under Pa.R.App.P. 903 (appeal as of right must be taken within 30 days of the challenged order).

In support of the timeliness of their appeal, the Venturinos maintain that there was no proper Decree Nisi or adjudication issued in compliance with the Partition Procedure Pa.R.C.P. 1570 and Equity Procedure Pa.R.C.P. 1517 Because the final decree was entered without affording the parties the opportunity to file exceptions or to correct court errors, they argue, the final decree is a nullity and can be challenged at any time. They cite, Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974), for the proposition that the final decree must be vacated and the case remanded when a proper Decree Nisi was never issued.

It appears from the relevant case law that two distinct resolutions have been adopted by the Pennsylvania Courts. In Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976), upon which the Appellants rely, the Supreme Court of Pennsylvania reviewed the substantive issues on direct appeal where no Decree Nisi had been entered under Pa.R.C.P. 1517. The requirement of filing exceptions to the Decree was, therefore, excused. In Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968), the Chancellor also did not file a Decree Nisi. The Court found that because of the lack of the Decree, no exceptions were filed, and the court had no opportunity to correct its errors prior to the entry of the final decree. On direct appeal, the Supreme Court vacated the Decree and remanded for the court to prepare an adequate adjudication under Pa.R.C.P. 1516-17. This Court noted a possible difference in the two lines of cases in Cornell v. D’Italia, 287 Pa.Super. 233, 429 A.2d 1186 (1981): Derry dealt with administrative agency action while In re: Involuntary Termination of Parental Rights, 487 Pa. 387, 409 A.2d 404 (1979) and Community Sports, Inc., supra., were actions in equity cases, and the court remanded for entry of a Decree Nisi. In all of these cases, however, direct and timely appeals were taken to the Superior Court. The instant case presents a situation where the Final Decree was entered on August 30, 1983, but the appeal was not taken until December 21, 1983, well after the thirty day appeal period had passed. We are constrained to hold, therefore, that because Appellants did not complain of the improper procedure used by the trial court within 30 days from the final decree, but instead objected when the order was being enforced, we have no jurisdiction to decide the merits. We agree with Appellees that all parties were informed that the August 30,1983 Order was intended to be final. Appellants took no action either by filing post-trial motions, motion for reconsideration or taking a timely direct appeal to this court. Therefore, Appellees motion to quash the appeal is granted.

Appeal quashed.

      . A proper Decree Nisi would meet the requirements of both rule 1517 and 1570. The partition rules are actions in equity. Rule 1551 incorporates 1570 the equity requirements of Rule 1517 into Rule by reference. Goodrich-Amram 2d. Standard Pa. Practice, Rule 1570: 1, p. 574.