author: JOHNSON, Judge: POPOVICH, Judge, BROSKY, Judge,

text:
    444 A.2d 160
    COMMONWEALTH of Pennsylvania v. Paulette DeCARO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed April 12, 1982.

      Robert Scandone, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before BROSKY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

For the reasons given below, the denial by the trial court of the motion to suppress is affirmed. The case is remanded to the lower court with directions to entertain appellant’s motion for modification of sentence nunc pro tunc.

Paulette DeCaro was tried in the Municipal Court of Philadelphia County on charges of possession with intent to deliver a controlled substance and knowing and intentional possession of a controlled substance. The drugs consisted of about 855 pills and 2 vials. The municipal court judge found her guilty and sentenced her to two years’ probation and a $5,000.00 fine.

Appellant filed an appeal for a trial de novo in the Court of Common Pleas. See Pa.R.Crim.P. 6006. After a non-jury trial, she was found guilty of the charges against her, and sentenced, after denial of post-trial motions, to a term of imprisonment for not less than llVz months and not more than 23 months. It is from this sentence that she appeals.

Appellant’s first allegation of error concerns the fact that the sentence imposed in the Court of Common Pleas at the trial de novo was greater than the sentence imposed at the first trial in Municipal Court. Appellant asks us to apply the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to this situation, rather than the rule of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), which is what our case law has applied hitherto.

The Pearce case applies specifically to sentences imposed following retrial after a prior conviction has been overturned on appeal because of error tainting the first trial. The Colten case applies where there is a two-tiered system, involving speedy disposition of certain criminal offenses at the first level, as is the system in Philadelphia. See Pa.R.Crim.P. 6000-6013. The United States Supreme Court specifically stated in Colten that the Kentucky trial de novo system did not present the hazards calling for the restraints which the Court had required in Pearce. See 407 U.S. at 119, 92 S.Ct. at 1961, 32 L.Ed.2d at 595. The Pearce requirements are:

whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

North Carolina v. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. The reason for this is primarily to protect the defendant from any vindictiveness on the part of the judge at the second trial. In Colten the Court found that there was not a likely danger of such vindictiveness in the Kentucky two-tier system. The Court said:

The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.
We note first the obvious: that the court which conducted Colten’s trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court’s work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance.

Colten v. Kentucky, 407 U.S. at 116-117, 92 S.Ct. at 1960, 32 L.Ed.2d at 593.

In Pennsylvania, we held, in Commonwealth v. Moore, 226 Pa.Super.Ct. 58, 312 A.2d 422 (1973), petition for allowance of appeal denied, May 17, 1976, that Colten applies to Pennsylvania, and that the reasoning therein is the law of Pennsylvania. See also Commonwealth v. Possinger, 264 Pa.Super.Ct. 332, 399 A.2d 1077 (1979); Commonwealth v. Clay, 230 Pa.Super.Ct. 157, 326 A.2d 513 (1974), petition for allowance of appeal denied, January 2, 1975.

Appellant urges us to apply Pearce rather than Colten because, in particular, she took her appeal from the Municipal Court in order to relitigate a motion to suppress which had been denied in the Municipal Court. The Pennsylvania Supreme Court, in a case subsequent both to Colten and to Moore, Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976), held that the rule that pre-trial decisions, such as a motion to suppress, at the Municipal Court level, cannot be relitigated during the Common Pleas trial de novo was not unconstitutional. The issue, then, is whether the loss of the right to relitigate a motion to suppress at a trial de novo makes for a significant difference between the Kentucky and the Philadelphia two-tier systems, such that the rule in Commonwealth v. Moore (Colten applies in Pennsylvania) should no longer stand.

Appellant argues that there are three basic differences between the Kentucky system approved in Colten and the system in Philadelphia: (1) in Colten a prison sentence was not involved, but merely a fine; (2) the right to trial in Kentucky involves a completely fresh determination of guilt or innocence which is allegedly now lacking in the Philadelphia system since suppression motions cannot be relitigated; (3) in Kentucky there is a right to trial by jury at the first level, which is not the case in the Philadelphia system.

As to the first difference, i.e. the penalty involved, the Supreme Court in Colten, though it mentioned that the defendants in Pearce had received longer prison sentences after reconviction, did not say that it was the nature of the penalty which called for the rule. It was in the motivation for the increased penalty that the danger lay:

Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to insure “that vindictiveness against a defendant for having successfully attacked his first conviction . .. [would] play no part in the sentence he receives after a new trial...” and to ensure that the apprehension of such vindictiveness does not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. ...” 395 U.S. at 725 [89 S.Ct. at 2080], 23 L.Ed.2d at 669.

Colten v. Kentucky, 407 U.S. at 116, 92 S.Ct. at 1960, 32 L.Ed.2d at 593.

As to the second difference, i.e. Kentucky’s clean slate at the second level, Pa.R.Crim.P. 6010 provides that on appeal the matter shall be treated in the same manner as any other court case. Therefore, theoretically, the Pennsylvania system, like the Kentucky system, gives the defendant a fresh start. The motion to suppress is a pretrial procedure in Pennsylvania, see Pa.R.Crim.P. 306, and its denial is final and binding, see Pa.R.Crim.P. 323(j). Upon conviction of the defendant, the denial is appealable. See Commonwealth v. Kaschik, 235 Pa.Super.Ct. 388, 396 n. 7, 344 A.2d 519, 524 n. 7 (1975). Our Supreme Court said in Harmon:

Moreover, appellee has failed to establish any deprivation of an accused’s substantive rights that would result under General Court Regulation 72-7.[] Both Municipal and Common Pleas Courts are bound by the same law and apply the same standards in ruling upon the merits of the suppression motion. The judges of both courts are trained in the law and their decisions are subject to review on post-trial motions and upon appeal to the appellate tribunals of this Commonwealth. Our interpretation of the rule places the accused, who first appeared in the Municipal Court, on the same plane as the individual whose case was initiated in the Court of Common Pleas. In both situations the pre-trial decision cannot be relitigated during the Common Pleas Court trial, and in each instance the accused must demonstrate in post-trial and/or appellate proceedings that error below occurred. We are therefore satisfied that General Court Regulation 72-7 does not transgress any constitutional provision and, therefore, is valid.

Commonwealth v. Harmon, 469 Pa. at 498, 366 A.2d at 899 (footnotes omitted). Furthermore, this difference again is not one wherein lies a danger of judicial vindictiveness such as is described by the Supreme Court of the United States in Pearce.

As for the third difference i.e. trial by jury at the first level, the Philadelphia rules provide, in order that there be no violation of the constitutional right to trial by jury, that a defendant must be informed that he may appeal for trial de novo before a jury. Pa.R.Crim.P. 6006(a)(2). He is not forced to content himself with a trial without a jury. The right to appeal to Common Pleas is absolute. We do not see that having only one jury trial in Philadelphia, in contrast with the two in Kentucky, creates a risk that the second judge will vindictively impose a stiffer sentence.

Accordingly, we decline to follow appellant’s suggestion that we apply Pearce to Philadelphia’s system. The reasoning in Harmon makes it quite clear that the difference between the two-tier systems discussed is not of a dimension such as to effect the quality of justice dispensed in Philadelphia. The reasoning in Colten applies to the situation in Philadelphia despite the lack of the right to relitigate the motion to suppress. Further, the law of sentencing procedures in Pennsylvania contains adequate protection for defendants undergoing sentencing. If the Common Pleas Courts follow the requirements of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. .345, § 1; 42 Pa.C.S.A. §§ 9701-9781 (Pamph.1981), and of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), defendants being resentenced after a trial de novo are sufficiently protected.

We therefore conclude that there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures were complied with.

Appellant challenges the sentence imposed, claiming that it is excessive. This leads us to a consideration of the sentencing hearing conducted by the Common Pleas judge. It is well-settled law that the sentence imposed upon a convicted defendant is within the broad discretion of the sentencing judge. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Campolei, 284 Pa.Super.Ct. 291, 425 A.2d 818 (1981). The sentencing judge must, however, comply with Pa.R.Crim.P. 1405, with the standards of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), with the factors in 42 Pa.C.S.A. § 9725, and also with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), giving reasons on the record for his choice of sentence.

The transcript of the sentencing hearing shows that the judge took into consideration the Sentencing Code guidelines and gave reasons for his choice of sentence. He also notified appellant of her right to appeal to this court within thirty days. He neglected, however, to inform appellant of her right to file a motion to modify sentence within ten days, as he is required to do by Pa.R.Crim.P. 1405(c), supra.

No motion was filed by appellant for reconsideration by the trial court of the sentence imposed. Pa.R.App.P. 302(a) provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. To preserve the issue of excessive sentence the correct procedure would have been to have filed a written motion to modify sentence in accordance with Pa.R.Crim.P. 1410. Failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself. See Commonwealth v. Walls, 248 Pa.Super.Ct. 335, 375 A.2d 125 (1977), aff’d, 481 Pa. 1, 391 A.2d 1064 (1978).

In Commonwealth v. Koziel, 289 Pa.Super.Ct. 22, 432 A.2d 1031 (1981), we remanded to the lower court with directions to entertain the appellant’s motion for modification of sentence nunc pro tunc. See also Commonwealth v. Rush, 281 Pa.Super.Ct. 92, 421 A.2d 1163 (1980).

Accordingly, because of the trial court’s failure to inform appellant of her right to file a motion for modification of sentence, and of her obligation to do so within ten days, we shall remand this case to the lower court. The lower court will entertain appellant’s motion for modification of sentence nunc pro tunc.

Appellant’s next two assignments of error concern the motion to suppress. The scope of our review of an order of the suppression court is limited to a determination of whether the record supports the factual findings of the court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). We consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the whole suppression hearing record, remains uncontradicted. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Stamm, 286 Pa.Super.Ct. 409, 429 A.2d 4 (1981).

Appellant claims that the execution of the warrant was not in accordance with Pa.R.Crim.P. 2007 which requires that the police give the defendant the opportunity to surrender the premises voluntarily before they enter. This issue was litigated in the municipal court, in the context of the motion to suppress, and subsequently in the Court of Common Pleas in the context of the post-trial motions.

The testimony at the suppression hearing shows that the police took with them one Sadusky, a defendant on another charge who knew appellant and who had agreed to have appellant open her door to him for the benefit of the police. The front door was reinforced by an iron gate opening outwards. When appellant opened the door to Sadusky, át least one police officer yelled out “police” and “we have a warrant”. A police officer standing with Sadusky grabbed the iron gate to prevent it from being slammed shut, and the other two police officers ran in, while appellant stood there, doing and saying nothing. The police had seen another person in the house, and rushed through the house to prevent disposal of any controlled substance, showing the warrant to appellant later. The judge, on the basis of Commonwealth v. Regan, 254 Pa.Super.Ct. 555, 386 A.2d 89 (1978), found that Sadusky was being used as a ruse to get the door open and that there was no violation. We see no error in the conclusion drawn by the judge from the facts. The crucial issues are authority, purpose and entry, Commonwealth v. McCarthy, 257 Pa.Super.Ct. 42, 390 A.2d 236 (1978). The police announced their authority and purpose and though they rushed in quickly there was no forced entry. There was no violation of appellant’s rights in the execution of the warrant.

Secondly, appellant alleges error with respect to the affidavit on which the warrant was based. She claims that because she was not allowed to review all records testified to by the affiant in showing the reliability of the informant, the requirements of Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973) were not satisfied. Hall requires that a defendant at a suppression hearing be afforded the opportunity to test the truthfulness of the recitals in the warrant alleging the informant’s reliability. Id., 451 Pa. at 208, 302 A.2d at 346. To achieve this, the defendant must be allowed meaningful cross-examination of the police officer-affiant at the hearing. Id. Mere allegations of the informant’s reliability are insufficient. 451 Pa. at 207, 302 A.2d at 345.

At the suppression hearing defense counsel requested the court term and docket numbers of earlier criminal proceedings which allegedly resulted from information supplied by the informant whose information was the basis of the warrant in this case. Then, in the post-trial motions hearing defense counsel claimed that he should have been shown all warrants resulting from the informant’s previous information.

From the record of the suppression hearing we see that the hearing had been recessed in order that defense counsel be given citations to other criminal cases alleged in the warrant. There was an in camera hearing on the Hall motion. Most importantly, there was cross-examination of the police officer-affiant. Lastly, there was discussion between defense counsel and the trial judge as to what the Hall case requires. There is no error in the judge’s determination as to what Hall requires. Defense counsel was granted what Hall requires. There was no error in not granting him extra time to review the records. The denial of the motion to suppress is affirmed.

There was no error per se in the trial court’s imposition of a greater sentence than that imposed in Municipal Court. However, the case is remanded to the lower court in order that the lower court entertain a timely motion for modification of sentence nunc pro tunc. Appellant will have ten days, from the filing of the record and this opinion in the lower court, in which to file a motion for modification of sentence in the lower court. Jurisdiction is not retained by this court.

POPOVICH, J., files a concurring opinion.

BROSKY, J., files a dissenting opinion.

POPOVICH, Judge,

concurring:

I agree with Judge Johnson’s reasoning that the holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) is applicable to the two-tier system in Philadelphia, notwithstanding the absence of an accused’s right to relitigate in a trial de novo in the Court of Common Pleas the denial of his motion to suppress by a Municipal Court. See Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). Additionally, and more importantly, I agree that “there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures are complied with.” (Emphasis added) (Footnote omitted) Commonwealth v. DeCaro, 298 Pa. Super. 32, 42, 444 A.2d 160, 165 (1982).

However, I write separately to point out that the latter statement overrules our holding in Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422 (1973). In Moore, the question posed was:

“whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.” (Emphasis added) Id., 226 Pa.Super. at 60, 312 A.2d at 422.

To start with, the Court in Moore found the Kentucky system, as discussed in Colten, to be indistinguishable from the Philadelphia system. Consistent therewith, the Court went on to hold that, unless the appellant appealing a summary judgment to a higher court alleges error in regard to the prior summary offense and in the sentence imposed by the municipal court, the reasoning supporting Colten rather than that supporting North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) was applicable and governing. In other words, the Moore Court was stating that the trial judge’s reasoning for increasing a sentence after retrial was not required to “ ‘be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding^]’ ” Commonwealth v. Moore, supra, 226 Pa.Super. at 60, 312 A.2d at 423, unless, as just stated, the appellant alleged error attendant to the summary proceedings and the sentence imposed by the municipal court. In light of our Supreme Court’s ruling in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the promulgation of the Sentencing Code (42 Pa.C.S.A. § 9701 et seq. (Pamphlet, 1981)), such statement can no longer be considered to be a viable tenet in the law.

Furthermore, I find that Riggins and the Sentencing Code are sufficient safeguards to assure that any sentence imposed, regardless of whether it be entered after a trial de novo from a summary offense or following a retrial, comports with the dictates of due process and is not constitutionally infirm.

BROSKY, Judge,

dissenting:

The majority holds that the fact that the de novo court is bound by the decision of the suppression court in the Municipal Court does not necessitate us finding that the system involved herein is different than that found in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). I do not agree. I would hold that the suppressibility of presumably critical evidence has been litigated by a different court than that reaching the decision upon which the appellant herein was sentenced and as such that the de novo court has not, in its fullest extent, engaged in a de novo determination. It is not uninfluenced by the decision of the municipal court. Thus, the two-tier system herein is distinguishable from that found in Colten. Accordingly, I would hold that the de novo court is obliged to sentence DeCaro to no more severe a sentence than that she received in the Municipal Court unless it finds there is “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original (Municipal Court) sentencing proceeding.” North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, 670 (1969). I would remand to the trial court for proceedings consistent with this opinion.

      . The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended; 35 P.S. § 780-113(a)(30) (Purdon 1977).

      . 35 P.S. § 780-113(a)(16).

      . Pa.R.Crim.P. 6006 provides in relevant part:
      Rule 6006. Notice of Right to Appeal and Guilty Plea Challenge Procedure

      Immediately after the imposition of sentence, the judge shall inform the defendant:
      (a) in the case of a trial and verdict of guilty,
      (1) of the right to appeal for trial de novo within thirty (30) days without costs,
      (2) of the right to jury trial on appeal, and
      (3) that the charge on which the defendant was found guilty in the Municipal Court will be considered by the district attorney as the basis for the preparation of an information after the filing of the notice of appeal____

      . The precise holding was as follows:
      It is our holding that where as in the instant case, defendant takes an appeal as of right from a summary judgment, without allegations of error, to a higher court before which his case is tried de novo without reference to the prior summary proceeding and without reference to the sentence imposed by the municipal court, the reasoning supporting Colten v. Kentucky rather than that supporting North Carolina v. Pearce is applicable and governing.
      226 Pa.Super.Ct. at 63, 312 A.2d at 424.

      . In Commonwealth v. Moore, 226 Pa.Super.Ct. at 61, 312 A.2d at 424, this court stated that the two systems are indistinguishable. Then in Commonwealth v. Neal, 258 Pa.Super.Ct. 375, 383, 392 A.2d 841, 846 (1978), this court stated that the holding in Harmon that the term “trial” does not include pre-trial motions has no effect on the basis of our holding in Moore. In Neal we affirmed a conviction after a non-jury trial at which the defendant had appeared in prison clothes. A six-justice Supreme Court reviewed Neal. Three justices would have dismissed the appeal, three justices would have reversed the Superior Court. The Court did not discuss the issue of greater sentence. Commonwealth v. Neal, 493 Pa. 335, 426 A.2d 576 (1981), reargument denied May 11, 1981.

      . Pa.R.Crim.P. 6010 provides:
      Rule 6010. Procedure on Appeal

      The District Attorney upon receiving the notice of appeal shall prepare an information and the matter shall thereafter be treated in the same manner as any other court case.

      . Pa.R.Crim.P. 323(j) provides:
      0) if the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its suppressibility.

      . The regulation provides:
      Motions to suppress shall be heard on the same day and immediately prior to the Municipal Court trial. The judge hearing the motion to suppress shall hear same as a Common Pleas Court Judge. In the event such motion is denied and defendant convicted on appeal to the Common Pleas Court, the motion may not be reinstated as part of the appeal.

        See Commonwealth v. Harmon, 469 Pa. at 493-494, 366 A.2d at 897.

      . See note 3 supra.

      . The writer of this opinion does not presume to overrule this court’s holding in Commonwealth v. Moore. The question before the court in Moore was “whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.” 226 Pa.Super.Ct. at 60, 312 A.2d at 422. The issue as presented by appellant in her appeal in this case is identical.
      In Moore this court held that where a defendant takes an appeal as of right, without allegations of error, to a higher court for a trial de novo, the rule of Colten, rather than that of Pearce, applies. In other words, the de novo court does not need to state on the record facts occurring since the first sentence which justify a greater sentence.
      This is what we hold in this case, reaffirming the holding in Moore, and declining to accept appellant’s suggestion that the rule of Commonwealth v. Harmon makes for a difference between the Philadelphia and the Kentucky system in Colten such that Pearce should apply.
      Judge POPOVICH reads Moore as holding that the Colten rule applies unless the appellant alleges error by the Municipal Court. In the Philadelphia system allegation of error is immaterial. The appeal to Common Pleas is an absolute right. This writer reads any qualification in Moore as restricting the holding of Moore to cases involving automatic appeals such as are provided for in the Philadelphia system, rather than to cases where the appellant alleges error by a lower court in his/her appeal to a higher court. Judge POPOVICH seems to read Moore to say that if in appealing to Common Pleas from Municipal Court the appellant asserts error by the Municipal Court, Pearce should apply, and if the appellant merely appeals as of right without complaining of error, Colten should apply. This writer does not read Moore as making such a distinction.
      This writer qualifies the holding in this case (that there was no error in the Common Pleas court imposing a greater sentence) with the proviso that, Colten and Pearce issues aside, the de novo court must impose a sentence in accordance with the Sentencing Code and with Riggins, the rules of which are subsequent to Moore. Any case law regarding sentencing prior to Riggins is presumably still good law in so far as it does not conflict with the law of Riggins. As appellant’s second argument is an excessive sentence argument, once the greater sentence issue is disposed of, there must nevertheless be an analysis under Riggins of the sentencing procedure followed in Common Pleas.
      The writer of this opinion agrees wholeheartedly with Judge POPOVICH that Riggins and the Sentencing Code are sufficient safeguards to assure that sentences imposed violate no constitutional rights. See at 165. Nothing in this opinion should be construed otherwise.

      . Pa.R.Crim.P. 1405 provides:
      Rule 1405. Sentencing Proceeding

      At the time of sentencing the judge shall:
      (a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;
      (b) state on the record the reasons for the sentence imposed;
      (c) advise the defendant on the record:
      (1) of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided with free counsel;
      (2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);
      (3) of the ten (10) day time limit within such motions must be filed;
      (4) that the defendant is entitled to be represented by counsel in preparing and litigating such motions; and
      (5) that only claims raised in this court may be raised on appeal;
      (d) require that a record of the sentencing proceedings be made and preserved so that it can be transcribed as needed. The record shall include:
      (1) the record or any stipulation made at a pre-sentence conference; and
      (2) a verbatim account of the entire sentence proceeding.

      . 42 Pa.C.S.A. § 9721(b) provides, for example, in part, that:

        The court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.

      . 42 Pa.C.S.A. § 9725 provides:
      § 9725. Total confinement

      The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant is necessary because:
      (1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
      (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
      (3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

      . Pa.R.Crim.P. 1410 provides:
      Rule 1410. Motion to Modify Sentence

      A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

      . Pa.R.Crim.P. 2007 provides:
      Rule 2007. Manner of Entry Into Premises

      (a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his immediate forcible entry.

        (b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
      (c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search.

      . Such conclusion is predicated upon the unequivocal statement in Moore that:
      “It is our holding that where, as in the instant case, defendant takes an appeal as of right from a summary judgment, without allegations of error, to a higher court before which his case is tried de novo without reference to the prior summary proceeding and without reference to the sentence imposed by the municipal court, the reasoning supporting Colten v. Kentucky rather than that supporting North Carolina v. Pearce is applicable and governing.” (Emphasis added in part) Commonwealth v. Moore, supra, 226 Pa.Super. at 63, 312 A.2d 424.
      Additionally, it is interesting to observe that the prosecution in Moore contended “that the North Carolina v. Pearce decision ha[d] no applicability where the second sentencing [was] by a different court after trial de novo as of right without allegation of error.” (Emphasis added) Id., 226 Pa.Super. at 61, 312 A.2d at 423.
      Parenthetically, based on the preceding, if an accused were to “allege error” in his appeal de novo from a summary conviction and the sentence entered by the Municipal Court, then, according to Moore, upon subsequent conviction and the imposition of an increased sentence in the Court of Common Pleas, the rationale supporting Pearce would apply. That is:
      “ ‘reasons [for the increased sentence] must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.’ ” Id., 226 Pa.Super. at 60, 312 A.2d at 423.
      I cannot subscribe to such a view, inasmuch as our Supreme Court’s pronouncement in Commonwealth v. Riggins, infra, and the Legislature’s enactment of the Sentencing Code precludes the issuance of an arbitrary and capricious sentence.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    444 A.2d 170
    COMMONWEALTH of Pennsylvania v. George L. CORSON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1982.
    Filed April 12, 1982.
    Petition for Allowance of Appeal Denied Sept. 27,1982.

      Robert D. Gleason, Johnstown, for appellant.
    Dennis M. McGlynn, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

The appellant, George L. Corson, Jr., entered a plea of guilty to third degree murder before Judge Eugene Creany in the Court pf Common Pleas of Cambria County. On February 10, 1981, appellant was committed to the Western Correctional, Diagnostic and Classification Center located at the State Correctional Institution, Pittsburgh, Pa., for a term of not less than 10 years nor more than 20 years. Thereafter, on March 10, 1981, appellant filed an appeal to this Court from the judgment of sentence. Pa.R.App.P. 903(a). We affirm.

Before deciding the merits of appellant’s claim attendant to the original sentence imposed, we find it necessary to discuss the assertion in appellant’s brief, which is not disputed by the Commonwealth, that the instant appeal is also from the lower court’s order denying appellant’s “Motion To Modify Sentence.” To start with, our perusal of the record indicates no notice of appeal being filed from the order denying said Motion.

Even if, arguendo, we were to agree that such appeal was perfected by the accused, it would have to be dismissed. To explicate, prior to the appeal from the judgment of sentence, appellant submitted, on February 20,1981, a timely motion to modify the sentence. Pa.R.Crim.P. 1410. Pursuant thereto, the lower court issued an order dated February 23, 1981 that, inter alia, “[a] hearing on the merits of [appellant’s] Petition [Motion] shall be heard on the 11th day of March, 1981 .. .. ” (Record No. 33) From an order dated March 11, we learn that the matter of the modification of sentence was heard, but that the lower court made no “disposition] of this motion.” (Record No. 35) Rather, another proceeding (“hearing”) was conducted on July 7, 1981, at which time counsel for appellant argued in favor of having the sentence reduced. On August 26, 1981, the lower court issued an order, accompanied by an Opinion, denying appellant’s Motion.

It cannot be discounted that the lower court did not vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under Pa.R.App.P. 1701. See Comment to Pa.R.Crim.P. 1410. Hence, the 30-day period for appeal ran continuously. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1021 (1978). As a result, the sentencing court had only 30 days from the imposition of sentence within which to act to modify the sentence. See Comment to Pa.R.Crim.P. 1410; see also 42 Pa.C.S.A. § 5505 (Pamphlet, 1980); Pa.R.App.P. 1701. Consequently, the lower court did not have jurisdiction over the case so as to conduct a hearing (on July 7,1981) regarding the merits of appellant’s motion for modification of sentence some four and one-half (4V2) months after the Motion was filed (on February 20, 1981). Ibid. Ergo, appellant’s March 10, 1981 notice of appeal was not rendered inoperative. See, e.g., Commonwealth v. Dorman, 272 Pa.Super. 149, 151 n. 2, 414 A.2d 713, 715 n. 2 (1979); Comment to Pa.R.Crim.P. 1410; Pa.R.App.P. 1701(b)(3). Therefore, since there is no evidence of record that an appeal was filed from the August 26, 1981 order, we dismiss that portion of appellant’s case and treat the instant appeal as one taken solely from the judgment of sentence. See generally Commonwealth v. Lee, 278 Pa.Super. 609, 420 A.2d 708 (1980).

Appellant’s appeal centers around the argument that the lower court, in imposing sentence, “did not fulfill the requirements of Com[monwealth] v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977)” and acted arbitrarily and capriciously. We disagree.

It is well settled that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). Of course, the sentence must be within the statutory limits, see 18 Pa.C.S.A. §§ 1103 & 2502(c) (Supp.1981-82), and should require confinement that is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. See 42 Pa.C.S.A. § 9721(b) (Pamphlet, 1980); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980). If the sentence issued is within the statutory limits, as is the case here, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973).

At the hearing, appellant’s counsel conceded that his. client’s plea to the stabbing death of a cab driver, perpetrated during the course of a robbery, was “a serious matter and that the court ha[d] been in receipt of a great abundance of material, testimony and statements that g[a]ve the court a good background into the particulars of this offense.” (N.T. 2/10/81 at 4) However, counsel urged the court to take the following factors into consideration, which a review of the record indicates it did, in determining what the sentence should be:

1) the psychiatric or psychological background of the defendant (he suffers from a schizoid personality defect which was exacerbated by a continuous pattern of alcohol and drug abuse);
2) the age of the defendant (he was 21 at the time of sentencing); and
3) the defendant “exhibited] remorse and regret” for the tragedy that occurred.

When the accused was afforded the opportunity to speak, he echoed his attorney’s sentiments.

In determining the length of sentence, the trial judge did not look solely to the nature of the criminal act. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Quite the contrary, in compliance with Pennsylvania’s individualized sentencing system, Commonwealth v. Riggins, supra, the judge considered the particular circumstances of the offense, the accused’s age, education, history of drug and alcohol abuse, see Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) cert. denied, 483 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978); Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d 53 (1948); Commonwealth v. Ziomek, 291 Pa.Super. 251, 435 A.2d 894 (1981), and the pre-sentence report. See Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981). Moreover, the judge’s reasons for the sentence imposed were adequately stated on the record. (N.T. 2/10/81 at 11-13); see Commonwealth v. Riggins, supra. In fact, the reasons given reveal an appreciation by the sentencing judge of appellant’s “serious past history of psychiatric and emotional disturbance,” which, if not treated by total confinement in a correctional institution, would expose the appellant “to the possibility of committing another crime.” (N.T. 2/10/81 at 12) Therefore, we are unable to conclude, as appellant would have us do, that the sentence is manifestly excessive or that it “is arbitrary, capricious and violates due process consideration of the United States Constitution, as well as similar provisions of the Pennsylvania Constitution.” (Appellant’s Brief at 7)

Judgment of sentence is affirmed.

      . We observe that the dismissal of this portion of the appeal is not prejudicial to appellant’s case, for the issues raised therein are the same as those posed in his appeal from the judgment of sentence, which we are addressing. (See Appellant’s Brief at 4 & 5) Also, we mention for edification purposes that Pa.R.App.P. 1701(b)(3) was adopted to afford “a party seeking reconsideration to file an application for reconsideration below and a notice of appeal[.]” See Note to Rule 1701. However, it was not intended that both actions would be reviewed on appeal; rather, depending upon the circumstances of the case, only one action would survive. See Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977).

      . We note that pursuant to Pa.R.App.P. 1701, unlike Pa.R.Crim.P. 1410, the lower court’s granting of a reconsideration motion tolls the appeal period, in addition to rendering inoperative a notice of appeal filed concerning the order for which reconsideration has been granted. See Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., 296 Pa.Super. 62, 442 A.2d 296 (1982).
      In order to cause a notice of appeal from a judgment of sentence to be rendered inoperative under Rule 1410, the lower court, which also considers a motion to modify the sentence, is required to vacate the sentence within thirty days of the date judgment is entered. Otherwise, the lower court loses jurisdiction over the matter. See Comment to Pa.R.Crim.P. 1410.

      . We hear this case pursuant to our powers as set forth in 42 o Pa.C.S.A. § 742 (“The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas .... ”).


author: MONTGOMERY, Judge:

text:
    444 A.2d 173
    Kathleen WELLONS v. METROPOLITAN LIFE INSURANCE COMPANY. Appeal of Nancy Theresa WELLONS and Marshall Lee Wellons, III.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed April 12, 1982.

      Bonnie Brigance Leadbetter, Philadelphia, for appellants.
    Neil H. Stein, Philadelphia, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order of the lower court refusing to allow the filing of exceptions nunc pro tunc by the Appellants, against whom a verdict was entered following a non-jury trial. We are presented initially with a question of whether or not the order from which the appeal arises was final and appealable. Assuming that an appeal properly lies, we are presented with the substantive issue of whether or not the lower court committed reversible error in denying the application to file post-trial exceptions nunc pro tunc.

The record shows that the Plaintiff-Appellee, Kathleen Wellons, brought suit in assumpsit against Metropolitan Life Insurance Company to obtain the proceeds of an insurance policy issued by Metropolitan on the life of her late husband, Marshall Lee Wellons, II. The Appellee was the beneficiary of the policy, but a question arose as to her entitlement to the proceeds since she had fatally shot the decedent. Metropolitan denied payment on the basis of the Slayer’s Act, Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 8801 et seq. Metropolitan filed a petition for interpleader, placing the proceeds of the policy into an interest bearing account. The decedent’s children by a prior marriage, Nancy Theresa Wellons and Marshall Lee Wellons, III, the Appellants herein, were interpleaded and subsequently filed a claim, through their mother and natural guardian, for the proceeds.

Motions for summary judgment were filed by each party, but both were denied by the lower court. The case came to trial in January, 1981, before the Honorable Thomas A. White. The sole issue before the Court was whether or not the Slayer’s Act precluded any recovery by the Plaintiff-Appellee. The Court concluded that it did not and on January 26, 1981, Judge White entered a verdict in favor of the Plaintiff-Appellee. On January 28, 1981 the verdict was docketed. It appears that counsel for the Appellants received notice of the lower court’s verdict on January 29, 1981. No exceptions were filed by the Appellants within ten days of the notice of the verdict, the time period permitted under Pa.R.Civ.P. 1038(d). On February 13, 1981, Appellants’ counsel requested leave to file exceptions nunc pro tunc. The lower court denied that request and the instant appeal was thereafter timely filed from that order.

During the course of oral argument before this Court, a question was raised as to whether or not the instant appeal arose from an appealable final order. Leave was permitted to the parties to brief this issue, and both have subsequently submitted statements of legal position to us. Both assert that the instant appeal arises from an appealable order, and we agree with that position. As a practical matter, the lower court’s denial of the request to file exceptions nunc pro tunc had the effect of putting the Appellants out of court. Such circumstances create an appealable order. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). In Seven Springs Farms, Inc. v. King, 269 Pa. Superior Ct. 361, 409 A.2d 1363 (1979), our Court noted that we had previously quashed a direct appeal, on the merits, by the appellant because timely exceptions had not been filed subsequent to the entry of a judgment. A motion to file exceptions nunc pro tunc was thereafter filed by the appellant and denied by the trial court. When that latter order was appealed, our Court considered the issue of whether the lower court had abused its discretion in denying the request to proceed nunc pro tunc. In the instant case, the same situation is apparent. We are not called upon here to address the merits of the Appellants’ substantive claims, as such merits were not made the subject of timely exceptions. We are merely called upon to rule upon the propriety of the lower court’s denial of a request to file a late appeal. Our review of that issue is clearly a proper exercise of our appellate authority.

We next consider the second issue before us, concerning the question of whether the lower court committed reversible error in its denial of the request by the Appellants to file exceptions nunc pro tunc. It is clear in the record that the only reason that exceptions were not timely filed in the instant case was the inadvertence of counsel who represented the Appellants at that time. Moreover, as the Appellants properly admit in their brief to this Court in the instant appeal: “Here, counsel erred by filing exceptions four days late. The reason for this blunder does not appear of record ...” Thus, Appellants offer no grounds other than neglect for the failure to file timely exceptions, and merely argue that they will be greatly prejudiced in these circumstances if they are not permitted to proceed nunc pro tunc.

It is well-established that contentions of the prejudice are insufficient to support the granting of the relief sought by the Appellants in the circumstances of the instant case. In Seven Springs Farms, Inc. v. King, supra, we stated:

“The critical issue is appellant’s failure to file exceptions to the Court’s verdict. In requesting that she be allowed to file exceptions nunc pro tunc, appellant has not demonstrated any reasons why her previous failure to file exceptions should be excused. . . . Based upon the present record, we agree with the lower Court that the failure to file timely exceptions or to move to file late exceptions must be attributed to mere inadvertence, which is not a sufficient excuse.” (Citations omitted) 269 Pa.Superior Ct. at 362, 409 A.2d at 1364.

The Supreme Court addressed the same issue in E. J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 615, 381 A.2d 441, 444 (1977), where the Court stated:

“Having concluded that in appropriate circumstances a trial court may extend the 20-day period of Rule 1038(d), it remains to be seen whether good and sufficient reasons for doing so existed in the instant case. No excuse was given by appellant for failing to file exceptions to the decision of Judge Gates. The failure was explained, however, by the frank acknowledgment of “inadvertence”. Speaking for the court en banc below, Judge Gates noted:
“We have intentionally avoided a discussion of the reason plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have done so for the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our Supreme Court, then they might as well not have any rules at all.’ (Record at 57(a))
We agree with the court below that the appellant, Mrs. Paul’s has failed to present any legally cognizable reason for the failure to comply with Rule 1038(d). We therefore find no abuse of discretion in the lower court’s refusal to allow the untimely filing of exceptions.”

In view of the well-established law which is applicable in these circumstances, we conclude that the lower court did not commit an abuse of discretion in the denial of Appellants’ request to be permitted to file exceptions nunc pro tunc.

Affirmed.

      . Rule 1038(d) was amended on April 21, 1977, to change the period for the filing of exceptions from twenty (20) days to ten (10) days, with the change effective ninety (90) days after April 30, 1977.


author: VAN der VOORT, Judge:

text:
    444 A.2d 176
    Mary Pagel BEWLEY, Appellant, v. AETNA LIFE & CASUALTY.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed April 12, 1982.

      Albert Schlessinger, Philadelphia, for appellant.
    Joseph C. DeMaria, Philadelphia, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from a dismissal with prejudice of a Complaint filed by the appellant under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009, on the ground that the appellant had not commenced her action within the time period allowed by Section 106(c)(1) of that Act. The appellant contends that this defense had been waived because not properly pleaded and, if properly pleaded, that it was misapplied in this case.

The automobile accident out of which the appellant’s claim arose occurred on August 11, 1975, while appellant was driving an insured car of her employer on her employer’s business. On August 18, 1975, appellant filed an application with the appellee for basic loss benefits for work loss under the No-Fault Motor Vehicle Insurance Policy of her employer. On November 20, 1975, the appellee paid the appellant $249.33 by check in discharge of her claim.

On January 24, 1979, appellant commenced the present action by a Summons in Assumpsit to recover further basic loss benefits for work loss under the No-Fault Act. Her Complaint was filed on March 5,1979. In it she asserts that, as a result of the accident and resulting injuries, she sustained a further loss of employment income from March 10, 1976 through July 1, 1978, amounting to $1,035 per month, against which she credits Workmen’s Compensation benefits received at the rate of $690 per month, resulting in a net loss claim of $9,401.

On March 21, 1979, the appellee filed its Answer to the Complaint, including under the heading of “New Matter” the defense that the Complaint had not been brought within the time permitted by Section 106(c)(1) of the No-Fault Act, paraphrasing the first sentence of the Section as applicable. The draftsman of the Answer was apparently unaware of the earlier payment of benefits.

The time limitation on actions to recover benefits are set out in the statute, 40 P.S. 1009.106(c)(1) as follows:

Section 106. Payment of claims for no-fault benefits
(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

On October 5, 1979, the appellee filed a Motion to Dismiss the Complaint with prejudice because it was filed more than two years after November 20, 1975, the date on which she received the earlier payment of benefits, again citing Section 106(c)(1) of the No-Fault Act.

The appellant filed an Answer to the Motion averring that the issue raised by the Motion had not been pleaded in appellee’s Answer to the Complaint under the heading of “New Matter” as required by P.R.C.P. 1030. The appellee filed a Reply which included a request that it be permitted to amend its allegations under “New Matter” to conform to the position taken in its Motion to Dismiss.

Oral argument was heard by the Court on October 15, 1979 at which time the request to amend was renewed orally. On November 8,1979, the Court granted the Motion to Dismiss the Complaint, but took no action on the Motion to Amend. This appeal followed.

The appellant contends that the appellee has waived the two-year limitation rule which runs from the date of the original payment because this defense had not been pleaded properly under “New Matter”. She also contends that the Statute of Limitations should not run from the date of the first payment because that payment should not have been made. Appellant makes a third argument that the second sentence of Section 106(c)(1) of the No-Fault Act should be read independently of the first sentence in such a way as to permit her to file her second claim at any time within four years of the date of the accident. We find no merit in any of these positions.

We believe that the issue of whether appellant’s suit was brought within the time period authorized by Section 106(c)(1) of the No-Fault Act was adequately raised in appellee’s Answer to the Complaint under the heading of “New Matter”. That portion of the pleading read:

New Matter
8. The cause of action sued upon occurred on August 11, 1975.
9. This lawsuit was commenced on January 24, 1979, three years, five months and thirteen days after the said occurrence.
10. Pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, No. 176, 40 P.S. 1009.106(c)(1), an action to recover no-fault benefits for loss arising other than from death may be commenced not later than two (2) years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known that the loss was caused by the accident, or not later than four (4) years after the accident, whichever is earlier.
11. The losses alleged were known to the Plaintiff to have been caused by the accident as of the date of the same, namely, August 11, 1975.
12. Defendant is, therefore advised and believes that this claim is barred by the aforesaid section of the No-Fault Act, Act of July 19, 1974, No. 176, 40 P.S. 1009.-106(c)(1).

No mention was made of the earlier payment of benefits, probably because it was overlooked.

While Paragraph 10 under “New Matter” avers that appellant’s action was barred by the first sentence of Section 106(c)(1), the concluding Paragraph 12 pleads the broader defense “that this claim is barred by the aforesaid section of the No-Fault Act, Act of July 19, 1974, No. 176, 40 P.S. § 1009.106(c)(1).” This is quite sufficient to raise the issue of timeliness under either of the limitations set out in Section 106(c)(1). The lower Court would have acted helpfully had it put the issue to rest by allowing the amendment of Paragraph 10 under “New Matter”, but it was not necessary.

The appellant’s second contention is that the initial payment to her was made by mistake and as a consequence should not be the starting point of a two-year time limitation on filing a further claim. The initial No-Fault payment was paid as compensation for work loss during the two-week period immediately following the accident. Appellant now claims that this loss was recoverable under Workmen’s Compensation and should therefor have been declined by the appellee.

The factual assumption of that argument would appear to be incorrect. No Workmen’s Compensation was allowable for the first seven days of disability, 77 P.S., § 154, and thereafter recovery was limited to two-thirds of the wages lost, 77 P.S., § 511, leaving the balance as a recoverable item under No-Fault Insurance. Indeed the appellant’s Complaint is based upon her asserted right to recover the difference between Workmen’s Compensation payments and lost wages.

Furthermore, the language of Section 106(c)(1) of the No-Fault Act measures the Statute of Limitations on a second claim from the last payment on the earlier claim and affords no basis for making a collateral attack on the first payment. Even if the initial payment had been made by mistake, the appellant ratified it by initiating the request for payment, receiving the money, and keeping it. She makes no claim that the appellee acted fraudulently or in bad faith in honoring her first claim.

Appellant’s final argument that the Statute should be construed so as to authorize suit at any time within four years of the accident is answered by the plain wording of Section 106(c)(1). In each of the two sentences of that section, the legislature has mandated a two-year Statute of Limitations, dating the first from the time the claimant knew that she had suffered loss and starting the second from the last payment under a prior claim.

The action of the lower court in dismissing the Complaint was correct.

Order affirmed.


text:
    444 A.2d 179
    Clifford FAY, Trustee Ad Litem for Orchard West Homeowners Association, an Unincorporated Association, Appellant, v. BOHLIN & POWELL, a Professional Corporation, Peter Q. Bohlin and Richard E. Powell, a Partnership t/a Bohlin & Powell, and Peter Q. Bohlin and Richard E. Powell, Individually, and The Troup Fund, Inc.; Valbeth, Inc.; Mushal Construction Co., Inc.; and E. W. Roberts Son, a Business Entity.
    Superior Court of Pennsylvania.
    Argued May 11, 1981.
    Filed April 12, 1982.

      William F. Anzalone, Wilkes-Barre, for appellant.
    Arthur Silverblatt and Anthony B. Panaway, Wilkes-Barre, for Bohlin & Powell and Roberts Sons, appellees.
    Thomas E. Roberts, Wilkes-Barre, did not file a brief on behalf of Troup Fund, appellee.
    Michael A. Shucosky, Wilkes-Barre, for Valbeth, appellee.
    Before MONTEMURO, HOFFMAN and VAN -der VOORT, JJ.
   VAN der VOORT, Judge:

The Orchard West Homeowners Association (hereafter referred to as Association) is an association acting through a Trustee ad Litem. The Association filed a complaint in assumpsit and trespass, and an amended complaint, against a group of architects; builders; a roofing contractor and the seller seeking damages in the sum of $150,000 for defects in the Association’s main roof.

Bohlin and Powell (the architect) and E. W. Roberts Sons (the roofer) filed preliminary objections in the nature of a demurrer and a motion to strike contending that the Association has not established that it is “the real party in interest”, as required by Pennsylvania Rules of Civil Procedure, Rule 2002. The lower court sustained the preliminary objections and dismissed the complaint.

Conceding that the Association was correct in instituting litigation in the name of a Trustee ad Litem under Rule 2152, Pennsylvania Rules of Civil Procedure, Judge Toole’s opinion held that the Association must establish that it had the right to institute such an action against the appellees. The court then reviewed the pertinent paragraphs of the complaint. Clifford Fay was named Trustee ad Litem. The Association was defined as an unincorporated association composed of various owners of townhouses, condominiums and/or apartments located in Newberry Estate. The action was claimed to have been “brought by virtue of the authority given to the Association pursuant to the Declaration of Covenants.” Copies of the instruments by which each member acquired their interests were incorporated by reference. (Amended Complaint, paragraphs 1-4).

The court found “nothing in the Declaration of Covenants which would grant to the Association . . . the right to institute an action in court.” (Opinion, p. 13) Judge Toole then concluded that “a mere allegation setting forth the ownership interest of each member of the Association” was insufficient to confer legal standing on the Association to bring suit on behalf of its members. A panel of this court recently held in 1000 Grandview Association, Inc., v. Mt. Washington Associates, et al., 290 Pa. Superior Ct. 365, 369, 434 A.2d 796, 798 (1981) on facts similar to the present case, that “an association may have representational standing to assert the rights of its individual members, if it alleges an immediate, direct and substantial injury to any one of them.” 1000 Grandview Association established the legal principle applicable to the present case. Paragraph 11 of the amended complaint avers that within one to two years after the Association’s members acquired their interests, the main roof of the development was found to be defective. Such allegation is a sufficient averment of standing for the Association to bring its action.

The demurrer filed by Valbeth, Inc. (averred successor to seller and contractor) was sustained because: (1) the lower court held that the Association had no legal standing to maintain its action; and (2) that the allegations directed against Valbeth constituted only conclusions of law, not supported by averments of fact.

Paragraphs 25 through 27 of the amended complaint avers that Valbeth had assumed the liabilities of the builder and seller of Orchard West.

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. [Citations omitted] In order to sustain the demurrer, it is essential that the plaintiff’s complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).
Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).

We note that the question of whether Valbeth did assume such liabilities involves a mixed question of fact and law. While there are no averments as to when, and by what means this assumption of liability was accomplished, we find that there is a sufficient statement of an assumption of liability to withstand a demurrer. The factual specifics behind the averment of assumption of liability can be procured by motions for more specific averments or through discovery.

The order dismissing the amended complaint is reversed, and the amended complaint is reinstated, with leave to any party defendants to pursue motions for more specific averments and discovery.


author: PER CURIAM:

text:
    444 A.2d 181
    COMMONWEALTH of Pennsylvania ex rel. Andrea TOSE, v. Leonard H. TOSE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1982.
    Filed April 12, 1982.

      Richard M. Heller, Media, for appellant.
    Jean B. Green, Norristown, for appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   PER CURIAM:

In September, 1978, the Court of Common Pleas of Montgomery County issued an Order obligating the appellant/husband to pay his wife/appellee support in the amount of $55,000 per annum. Subsequently, in 1980, the husband filed a complaint and then an amended complaint in divorce. A divorce decree was entered in the Court of Common Pleas of Delaware County on December 12, 1980. Following the entry of the divorce decree, the husband filed a petition for termination of the support order.

On April 30, 1981, the Montgomery County Court of Common Pleas denied the husband’s petition, pending determination of two appeals filed by the wife to this court in which she appealed from the Delaware County divorce decree granted to her husband and also from the dismissal by the Court of Common Pleas of Montgomery County of her complaint in divorce (filed in 1971) and the entry of a judgment of non pros against her with respect to that complaint. It is the denial of the husband’s petition for termination of the support order which is the subject of this appeal.

The Superior Court, in orders filed on January 19, 1982, affirmed the two judgments which were the subject of the wife’s appeals. See Tose v. Tose, 270 Pa.Super.Ct. 420, 411 A.2d 790 (1982) at No. 2421 Philadelphia, 1980 and Tose v. Tose, 270 Pa.Super.Ct. 420, 411 A.2d 790 (1982) at No. 2870 Philadelphia 1980.

Accordingly this appeal is rendered moot. It is well established in this jurisdiction that courts of appeal will not decide moot questions. In re Gross, 476 Pa. 203, 382 A.2d 116 (1978); State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Super. 212, 421 A.2d 1224 (1980). We therefore remand the case to the Court of Common Pleas for further proceedings consistent with the two decisions of this Court entered on January 19, 1982.


author: SPAETH, Judge:

text:
    444 A.2d 666
    Myron H. TOMB, Jr., Bernard K. Bruns and Joseph J. Exton, individuals, v. Mary E. LAVALLE, trading as Lavalle's Bar, an individual, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Nov. 6, 1981.
    Reargument Denied March 3, 1982.
    Petition for Allowance of Appeal Denied May 25, 1982.

      Gregory A. Olson, Indiana, for appellant.
    Thomas W. Trimm, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from a decree in equity ordering specific performance of an oral agreement to sell a liquor license. Appellant argues first, that the agreement is unenforceable because a liquor license is “goods” within the definition of section 2-105 of the Uniform Commercial Code, 13 Pa.C.S.A. § 2105, and the statute of frauds contained in section 2-201, 13 Pa.C.S.A. § 2201, has not been satisfied, and second, that even if the agreement is enforceable, the liquor license was not proved to be of such peculiar value as to be the proper subject of a decree ordering specific performance. We have concluded that a liquor license is not “goods” within article 2 of the Uniform Commercial Code, and that the lower court properly ordered specific performance. We therefore affirm.

-1-

The chancellor’s findings, which were adopted by the court en banc, may be summarized as follows. Appellees and appellant met in November 1977 to discuss the sale of appellant’s liquor license. Appellees orally offered to buy the license for $65,000, the money to be placed in escrow with appellant’s attorney on February 1, 1978. Appellant orally accepted this offer but resisted appellees’ attempt to reduce the agreement to writing, saying that her word was her bond and the deal would be off if the agreement were reduced to writing. Appellees sold some real estate to raise the $65,000, and on February 1, 1978, and thereafter, they were ready, willing, and able to perform their side of the agreement. Meanwhile, however, appellant had agreed to sell the license to another party for $75,000.

In her answer to appellees’ complaint seeking specific performance of their agreement, appellant denied that any agreement had been made but also alleged that the oral agreement pleaded was for the sale of goods for more than $500 and that enforcement was therefore barred by the statute of frauds, contained in section 2-201 of the Uniform Commercial Code. Appellant then moved for judgment on the pleadings. The lower court held, in an opinion accompanying its order denying the motion, that section 2-201 did not apply because the liquor license was not within the term “goods” as defined by section 2-105.

The Code defines “goods” as
all things . . . which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities . . . and things in action.. . . U.C.C. § 2-105, 13 Pa.C.S.A. § 2105.

The lower court noted that'whether a Pennsylvania liquor license was “goods” within this definition was a question of first impression. In finding that a liquor license was not goods, the court relied principally on two cases that have held that radio station broadcasting licenses are not goods. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974); Foster v. Colorado Radio Corporation, 381 F.2d 222 (10th Cir. 1967).

Appellant argues that even if the radio license cases were correctly decided, a liquor license differs from a radio broadcasting license in ways that require a different result. It is true that the attributes of a liquor license are established by state law. Thus it is conceivable that a liquor license issued by one state might be within the term “goods,” while a license issued by another state was not. However, appellant does not cite us to any case from any jurisdiction holding a liquor license to be within the term “goods,” nor have we found such a case. On the contrary, it appears that whenever, it has been necessary to characterize a liquor license under the Uniform Commercial Code, the license has been held to be a general intangible. E. g., Bogus v. American National Bank of Cheyenne, Wyoming, 401 F.2d 458 (10th Cir. 1968) (Wyoming law); In re Coed Shop, Inc., 435 F.Supp. 472 (N.D.Fla.1977), aff’d, 567 F.2d 1367 (1978) (Florida law); Queen of the North, Inc. v. LeGrue, 582 P.2d 144 (Alaska 1978). These cases are consistent with cases from still other jurisdictions that, without specific reference to the Uniform Commercial Code, have described liquor licenses as intangibles. E. g., Roehm v. County of Orange, 32 Cal.2d 280, 196 P.2d 550 (1948); Provident Co-operative Bank v. James Talcott, Inc., 358 Mass. 180, 260 N.E.2d 903 (1970); City of Minneapolis v. Schutt, 256 N.W.2d 260 (Minn.1977). Furthermore, appellant does not point to any attribute of a Pennsylvania liquor license indicating that it should be described differently from liquor licenses issued by other states, nor can we imagine such an attribute. The lower court was right when it held that a liquor license is not “goods” within article 2 of the Uniform Commercial Code and that the statute of frauds in section 2-201 of the Code, 13 Pa.C.S.A. § 2201, therefore does not apply to the sale of such a license.

-2-

Appellant argues that before the lower court could issue a decree requiring specific performance of the oral agreement to sell the liquor license, it had to find that under the Quota Act, another liquor license was not available to appellees.

It is settled that specific performance is an appropriate remedy where the subject matter of an agreement is an asset that is unique or one such that its equivalent cannot be purchased on the open market. Pichler v. Snavely, 366 Pa. 568, 79 A.2d 227 (1951); Cochrane v. Szpakowski, 355 Pa. 357, 49 A.2d 692 (1946); Simcoe v. Huszar, 10 D. & C.3rd 298 (1979). A liquor license has been recognized as such an asset. Pichler v. Snavely, supra; Cochrane v. Szpakowski, supra. It is not necessary for a court to make a specific finding that another liquor license is not available before ordering specific performance of an oral agreement to sell a particular license. Our Supreme Court has taken judicial notice of the fact that liquor licenses are limited in number and hence not readily available:

“Furthermore, this contract involves the transfer and ownership of a retail liquor license, the value of which cannot be accurately determined in an action at law. It seems unrealistic to us to close our eyes to the fact that under the Act of June 24, 1939, P.L. 806, the Quota Act, 47 P.S. § 744-1001 et seq., new retail liquor licenses cannot be issued by the Board [Liquor Control Board] in the City of Pittsburgh because the number allowed by that Act is greatly exceeded by the existing licenses. This gives to the license here involved a peculiar value depending upon the business ability and the popularity of the owner, which cannot be accurately or adequately measured or compensated for in an action at law.” Cochrane v. Szpakowski, supra, 355 Pa. at 362, 49 A.2d at 694 (quoting the decision of the chancellor).

The lower court in the present case adopted the rationale of Cochrane and found the liquor license in question to be a unique item, not easily replaceable, and one for which mere monetary compensation would be inadequate. We agree.

Affirmed.

      . The Pennsylvania version of the Uniform Commercial Code defines a general intangible as “[a]ny personal property (including things in action) other than goods, accounts, contract rights, chattel paper, documents and instruments.” 13 Pa.C.S.A. § 9106 (emphasis added). A 1972 amendment to the Code, which was not adopted in Pennsylvania, added “money” to the list of specific exclusions. U.C.C. § 9-106.

      . The Uniform Commercial Code definition of “general intangible” is contained in the part of the Code dealing with secured transactions. Among the cases cited above it has been held that under the laws of Alaska, Florida, and Wyoming a security interest may be recognized in a liquor license. We express no opinion as to whether the Liquor Code would permit recognition of a security interest in a Pennsylvania liquor license. Compare 47 P.S. § 4 468 with Bogus v. American National Bank, supra. We note, however, that if it does not, the rights of the holder of a liquor license are correspondingly fewer, and the license would seem to be, if anything, less like article 2 “goods,” not more.

      . Appellant did not argue in the lower court or to us that any statute of frauds other than section 2-201 of the Code, 13 Pa.C.S.A. § 2201, should apply to the sale of a liquor license. Our consideration has been limited to the issue presented to us. Pa.R.A.P. 302.

      . Act of June 24, 1939, P.L. 806, 47 P.S. § 744-1001 et seq., repealed in part by Act of April 12, 1951, P.L. 90, art. IX, § 901. See 47 P.S. § 4-404 et seq.; 47 P.S. § 4-472.2.


text:
    444 A.2d 669
    COMMONWEALTH of Pennsylvania v. J. Michael WILLIAMSON. Appeal of George MILLER.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed Dec. 29, 1981.
    Petition for Allowance of Appeal Denied March 25, 1982.
    George Miller, Lock Haven, appellant, in pro. per.
    Frederick D. Lingle, District Attorney, Lock Haven, for Commonwealth, appellee.

      Before SPAETH, BECK and MONTEMURO, JJ.
   PER CURIAM:

Appellant attempted to bring private criminal complaints against a former District Attorney for refusal to prosecute prior private criminal complaints filed against others by appellant. The current District Attorney refused to prosecute, and appellant pursued his right under Pa.R.Cr.P. 133(B) to submit the disapproved complaint to the Court of Common Pleas for review. The Court of Common Pleas disapproved the complaints, finding them without any legal basis for prosecution, and the complainant appealed.

Appellant has previously litigated the same question before this court. In Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980), appellant herein sought reversal of the very action by the former district attorney which he has now sought to have prosecuted as criminal. The Court of Common Pleas and this court held that Mr. Williamson had acted completely within his authority and in accordance with the law, and that there had been no abuse of discretion.

We affirm the order of the lower court.


author: LIPEZ, Judge: WICKERSHAM, Judge,

text:
    444 A.2d 670
    COMMONWEALTH of Pennsylvania v. Frederick Weiler BLADY, a/k/a Frederick Weiler Brady, a/k/a Frederick William Brady, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed Feb. 5, 1982.

      Robert N. Bryan, Honesdale, for appellant.
    Stephen G. Bresset, Assistant District Attorney, Hones-dale, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of arson-endangering property, 18 Pa.C.S. § 3301(b)(1), risking catastrophe, 18 Pa.C.S. § 3302(b), and criminal mischief, 18 Pa.C.S. § 3304(a)(1). Post-verdict motions were filed and denied, and judgment of sentence entered. In this appeal from that judgment of sentence, we reverse and grant a new trial, because we agree with defendant’s contention that the court below erred in admitting testimony concerning an arson defendant committed in New Jersey in 1965 as substantive proof of the crimes charged in this trial.

The charges in this trial arose out of a fire on October 5, 1978 at the Petto Allen Inn in Honesdale, Pennsylvania. A detective from the Morristown, New Jersey police department testified that on December 21, 1978 defendant confessed to setting this fire. The Commonwealth then attempted to elicit from the detective testimony concerning defendant’s arson conviction in New Jersey for á fire he confessed to setting at the Hotel Revere in Morristown on May 22, 1965. Over defense objection, the court below admitted this testimony.

The general rules applicable to testimony of this type have been stated by our Supreme Court:

It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind. Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 786 (1971) [sic]; Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336 (1955). The general rule, however, allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (8) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Commonwealth v. Fortune, supra; Commonwealth v. Wable, supra. Thus, although the law does not allow use of evidence which tends solely to prove that the accused has a “criminal disposition,” evidence of other crimes is admissible for certain purposes if the probative worth of this evidence outweighs the tendency to prejudice the jury.

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981).

The Commonwealth argues that the similarities between the 1965 New Jersey fire and the 1978 Pennsylvania fire were so great as to show a distinctive modus operandi. Commonwealth v. Morris, supra, specifically formulated the requirements for admissibility of such evidence as follows:

As Professor McCormick explains, a distinctive and unusual “modus operandi” appears where “crimes of the accused [are] so nearly identical in method as to earmark them as the handiwork of the accused.” He adds a further clarification:
Here much more is demanded then [sic] the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual or distinctive, as to be like a signature.
McCormick on Evidence, § 190 at 449 (2d Ed. 1972). The Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others. See, Commonwealth v. Fortune, supra.

Id., 493 Pa. at 176, 425 A.2d at 720-21. Cf. Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 480, 427 A.2d 1385, 1388 (1981).

The Commonwealth relies on the following similarities in the evidence concerning the 1965 and 1978 fires: (1) the defendant was angry before the fires were started; (2) defendant was a resident at each hotel at the time it had the fire; (3) both hotels were old and had wooden floors, on which the fires were started in a pile of papers; (4) defendant returned to his room after each fire; (5) after returning to his room, defendant attempted to help others get out of the hotel; and (6) after both fires, defendant re-entered the hotel after initially leaving. Defendant responds by pointing out some dissimilarities, but even without considering these, we do not believe the Commonwealth’s six similarities are a sufficiently distinctive modus operandi to constitute defendant’s “signature.” Only the third even relates to the manner of commission of the crime, and lighting a pile of papers on a wooden floor is hardly a distinctive method of setting fire to an old building.

The fourth, fifth and sixth similarities are conduct the defendant would be equally likely to engage in, whether he had set the fires or not. The fact that the defendant was angry at the time of both fires is at least of some help to the Commonwealth’s position, but in neither case was the defendant angry at anyone or anything connected with the hotel. Essentially, the Commonwealth contends that the defendant’s unique “signature” consists of being a hotel resident, who is angry at something unrelated to the hotel at the time the hotel has an arson committed by very common means. This is not such a high correlation in details as to make it very unlikely that anyone other than the defendant could have committed the crime, as required by Commonwealth v. Morris, supra.

The connection between the fires is further weakened by the fact that they took place thirteen years apart in two different states. Of course, we agree with the Commonwealth’s assertion that the length of time between incidents is merely a factor to be weighed in light of the circumstances of each case. See Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191-92 (1977), reh’g den’d. The Commonwealth’s copious brief discusses numerous cases, in some of which the prosecution was permitted to show prior criminal activity occurring even more than thirteen years before the crime for which the defendant was being tried, but all these cases involved clearly distinguishable facts.

In Commonwealth v. Patskin, 372 Pa. 402, 413, 93 A.2d 704, 710 (1953), evidence that the defendant had beaten his wife was admissible as evidence of motive and malice against the same victim when he was accused of murdering her seventeen years later. The “modus operandi” exception was not involved. Cf. Commonwealth v. Ulatoski, supra. In United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973), evidence was admitted that six infants under the defendant’s care had died of cyanosis as much as twenty-four years before the infant cyanosis murder with which she was charged, but the court specifically grounded admissibility on the great number of similar incidents involved. In People v. Peete, 28 Cal. 306, 169 P.2d 924 (1946), the allowance of evidence of a 1920 murder to prove the defendant committed a 1944 murder, was based not only on stronger similarities than we have between the fires in this case, but also on the fact that the defendant in Peete had been in prison from shortly after the 1920 murder until shortly before the 1944 murder. We shall not discuss the many other cases cited by the Commonwealth. Many involve much shorter time intervals, and all are factually distinguishable, like Patskin, Woods and Peete.

Judgment of sentence reversed, and a new trial ordered.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I dissent because I find that the lower court properly admitted the testimony at trial concerning the arson which the defendant committed in New Jersey in 1965 as substantive proof of the crimes charged in the instant case. I agree with the Commonwealth that the similarities between the 1965 New Jersey fire and the 1978 Pennsylvania fire, as delineated on page 672 of the majority opinion, were so great as to show a distinctive modus operandi and for that reason, the New Jersey fire was admissible as evidence against the defendant.

The fire in the instant case occurred in the early morning of October 5, 1978 at Petto Allen Motor Inn in Honesdale, Pennsylvania. At trial, Robert W. Kinsman, Chief of Honesdale Fire Department, testified that the fire in question originated in a pile of bundled newspapers in an enclosed area under the central stairwell of the hotel. N.T. at 11-13. The hotel was old, N.T. at 19, and the steps were made of a wood frame. N.T. at 12. Mr. Kinsman testified that while he was trying to control the fire, he observed the defendant coming down the central stairway alone and that the defendant told Mr. Kinsman that if he were given a mask, he would help get the people out of the hotel. N.T. at 14. Mr. Kinsman also testified that he later heard one of the residents of the hotel thanking the defendant for his assistance on the morning of the fire. N.T. at 15.

Delvina M. Smith testified that she was the defendant’s girlfriend in September, 1978, N.T. at 62-63, and that during the time which they spent together, he was drinking quite a bit. N.T. at 64. She testified that in the last week of September, she attempted to break off her relations with the defendant and that on the morning of October 5,1978, at approximately 1:30 a. m., the defendant tried unsuccessfully to reach her by telephone. N.T. at 64-65. Ms. Smith was at home at the time, but her son answered the phone and informed the defendant that she was not there. N.T. at 64-65. Ms. Smith further testified that she picked up the receiver and heard the defendant, who sounded upset, talking to her son and that after this phone call, she left the phone off the hook to avoid talking to the defendant. N.T. at 65.

Charles F. Johnson, an arson and fire investigator with the Morristown Police Department in New Jersey, interviewed the defendant on December 21, 1978, concerning the fire in Honesdale, and he testified at trial as follows:

Q What, if anything, did the Defendant say concerning his involvement with the fire at the Petto’s [sic] Allen Inn on October 5, 1978?
A He admitted to me that he set the fire.
Q Did he give you any reason as to why he lit the fire?
A Yes, sir, he was mad and he had been drinking. He was mad at a young lady that he couldn’t reach on a phone.
Q Did he say how the fire started?
A Yes, sir, he threw a cigarette into some paper that was in a little closet under a stairwell of the main stairway going up to the Hotel.

N.T. at 75.

Police Officer Johnson, who had investigated the New Jersey fire in 1965 to which Defendant Blady had pled guilty, gave the following testimony as to the circumstances of the New Jersey fire:

Q [D]id you handle an arson investigation in the State of New Jersey at that time?
A Yes, sir, I did.
Q Where was this?
A Hotel Revere.
Q Where is that located?
A Morristown, New Jersey.
Q What type of a building is it?
A It is a hotel.
Q What type of structure?
A It is a wooden structure; it is a wooden type structure, three stories.
Q Can you give us an indication of the age of this structure?
A The building was over a hundred years old at that time.
Q During the investigation of that fire did you have an occasion to interview the Defendant?
A Yes, sir, I did.
Q Did he admit to you whether or not he set that fire?
A Yes, sir, he did. He gave me a full confession.
Q Did he tell you how and where he set it?
A Yes, sir.
Q And, what he started it with?
A Under the stairwell with papers and a match.
Q Did he tell you why he set it?
A Yes, he was mad at the way; he was mad at the way he was living and he had been drinking.
Q Where was the Defendant living at the time that he set that fire?
A At the same hotel.
Q The same hotel?
A Yes, sir.
Q After setting the fire what did his statement reflect that he did?
A He went down and woke everybody up on the first and second floors and went out and pulled the alarm, went back in and tried to assist the firemen in getting the rest of the people out of the building.

N.T. at 77-78, 79.

As the majority stated in its opinion (quoting Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 720, 721 (1981)), “a distinctive and unusual ‘modus operandi’ appears where ‘crimes of the accused [are] so nearly identical in method as to earmark them as the handiwork of the accused’ ” and that “[t]he Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried.” At 671-672. I conclude that the similarities between the New Jersey fire and the Pennsylvania fire show two crimes which are so nearly identical in method as to earmark them as the handiwork of the defendant. I also find that the remaining contentions of appellant, namely his confession should have been suppressed as a product of coercion and because of violation of the “six-hour rule” of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), are without merit. I would affirm the judgment of sentence.

      . While the appeal is properly before us because judgment of sentence was entered, the trial judge did not file an opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). There is no point in remanding for an opinion, however, since the trial judge had left the bench by the time this appeal was heard. Cf. Nigrelli v. Cody, 281 Pa.Super.Ct. 156, 161, n.2, 421 A.2d 1195, 1198, n.2 (1980), rearg. den’d.

      . Because of our disposition, we need not consider defendant’s other claims for a new trial: (1) that his confession should have been suppressed as a product of coercion; and (2) that his confession should have been suppressed because of violation of the “six-hour rule” of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Cf. Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980), rearg. den’d (1981) (involving same defendant, but different fire).

      . The Commonwealth’s brief also makes frequent mention of the “common scheme” exception, which is easily confused with the “modus operandi” exception, courts and litigants frequently using one phrase when they mean another. See, e.g., Commonwealth v. Kjersgaard, 276 Pa.Super.Ct. 368, 372-75, 419 A.2d 502, 504-05 (1980). Some factual situations do implicate both, but the two exceptions are quite distinct. The distinction can be easily illustrated. This case, for example, could involve the common scheme exception if there were evidence that both hotels were owned by the same person, and that defendant held a long-standing grudge against that person. There is no such evidence here, however, or any other evidence of a common scheme, and therefore we shall not discuss this exception in the text, despite the numerous references to it in the Commonwealth’s brief.
      At one point in the court below, the prosecution also made mention of the so-called “identity” exception, but as McCormick has observed, “[A] need for proving identity is not ordinarily of itself a ticket of admission, but that the evidence will usually follow, as an intermediate channel, some one or more of the other theories here listed. Probably the second (larger plan), the third (distinctive device) and the sixth (motive) are most often resorted to for this purpose.” McCormick on Evidence (2d ed. 1972) § 190, p. 451 (footnote omitted). See also United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973).

      . Although Morris involved joinder of charges for trial, the Court adopted the same standards as applies to admissibility of prior criminal acts under the “modus operandi” exception, so the Morris formulation of that standard is directly applicable here.

      . Dissimilarities on which defendant relies are: (1) in one case, defendant was angry at a girl friend, while in the other, he was angry at the world in general; (2) one fire was started with matches, the other by throwing a cigarette; (3) one fire was set in a closet, and the other was not; (4) one fire was in the first floor lobby, the other in the basement; and (5) an alarm was pulled in one case, but not the other.