author: WIEAND, Judge:

text:
    537 A.2d 857
    LEZZER CASH & CARRY, INC., Appellee, v. AETNA INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1987.
    Filed Feb. 17, 1988.

      Joan A. Yue, Philadelphia, for appellant.
    Joseph P. Green, Bellefonte, for appellee.
    Before ROWLEY, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Shaffer Gordon Associates (SGA) contracted with Pennsylvania Housing Partners (PHP) to act as the general contractor to construct the Daniel Scott Commons, a housing project in Chester, Delaware County. The project was being financed in major part by the Department of Housing and Urban Development (HUD) pursuant to a loan agreement which required the contractor to obtain a payment bond. This bond was purchased from Aetna Insurance Company on September 22, 1982. It named SGA as principal, Aetna as surety, and PHP as obligee. Prior to the start of construction, SGA obtained approval from HUD to name Oreland Housing, Inc. (Oreland) as subcontractor. Oreland entered a purchase order with Independence Homes, Inc. (Independence) for the materials necessary to the framing of the building. Independence, in turn, contracted with Lezzer Cash & Carry, Inc. (Lezzer) for the purchase of certain building materials required by Independence in performing its contract with Oreland. At the same time as this contract was in effect, Lezzer was supplying materials to Independence on five other projects for which SGA was the general contractor. Lezzer completed all deliveries to the Scott project by February 8, 1983. In late February or March, 1983, Lezzer’s sales manager called representatives of SGA and Aetna by telephone on several occasions to tell them that Lezzer had not received payment from Independence. In April, 1983, Independence sent to Lezzer a check which purported to be in payment for all materials supplied to the Scott project. When deposited, however, the check was returned for insufficient funds. On May 16, 1983, Lezzer for the first time sent written notice to Aetna that it was looking to Aetna to pay the invoices for materials which it had supplied to the Scott project.

When payment was not forthcoming, Lezzer filed a civil action against Aetna to recover the cost of such materials, and, following trial without jury and the determination of post-trial motions, recovered a judgment in the amount of $51,834.09 plus interest. On appeal, Aetna contends that the trial court erred by (1) determining that Lezzer was within the class of claimants protected by the bond, and (2) holding that oral notice was adequate compliance with the condition precedent of the bond which required written notice within ninety (90) days after the last of the materials had been furnished.

The bond defines a claimant whose claim will be honored as

one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract.

On the basis of this definition, Aetna argues that Lezzer was not a claimant who is within the class of persons protected by the payment bond. Because Lezzer did not have a contract with SGA or with a subcontractor of SGA, Aetna argues, payment of Lezzer’s claim is not guaranteed by the bond.

Section 2(a) of the Miller Act, 40 U.S.C.A. § 270b(a), contains the same limitation on the right to recover as that specified in the Aetna bond. Therefore, we look to and find instructive those federal court decisions which have interpreted the Miller Act. In United States ex rel. K & M Corp. v. A & M Gregos, Inc., 607 F.2d 44, 46-47 (3d Cir.1979), the Court of Appeals for the Third Circuit defined the significance of section 270b(a) as follows:

On any construction contract with the United States exceeding $25,000 in amount, the Miller Act requires the prime contractor to execute a bond “for the protection of all persons supplying labor and materials.” 40 U.S.C. § 270a(a)(2) (1976). Any protected supplier of materials or labor may sue on the bond for amounts due him. Id. § 270b(a). But the Act imposes limitations on this right. A person “having a direct contractual relationship with a subcontractor” but no privity of contract with the prime contractor may sue only if he gives the prime contractor notice of his claim within ninety days of the completion of his work. Id.

The Supreme Court, and prior to its decision a majority of the federal circuits, read this last provision as limiting the right to sue on a payment bond to persons with a direct contractual relationship with either the prime contractor or a subcontractor, and it read the term “subcontractor” as meaning first-tier subcontractor. J.W. Bateson Co. v. United States ex rel. Board of the Trustees of National Automatic Sprinkler Industry Pension Fund, 434 U.S. 586, 98 S.Ct. 873, 55 L.Ed.2d 50 (1978). See also In re Garden State Erectors, Inc. v. A. Leo Nash Steel Corp., 599 F.2d 1279 (3d Cir.1979).

We agree that Bateson rules out a holding that the court may look to the functions carried out by contracting parties, rather than to the position they occupy in the contractual structure, to identify the first-tier subcontractor. In Bateson, the court of appeals had ruled that a certain company, formally a second-tier subcontractor, should be deemed a first-tier subcontractor on the basis of its close and substantial working relationship with the prime contractor. The Supreme Court found this reasoning inconsistent with the language and legislative history of the Miller Act. 434 U.S. at 593-94, 98 S.Ct. 873. The clear import of Bateson is that Congress imposed a structurally defined limitation on the right to sue on a payment bond, which was not to be overstepped by a functional examination of the relationships of the contracting parties.

See also: United States ex rel. Metal Manufacturing, Inc. v. Federal Insurance Co., 656 F.Supp. 1194, 1199-1200 (D.Ariz.1987).

In the instant case, Lezzer had contracted with Independence, which had contracted with Oreland. Oreland was the subcontractor who had contracted with SGA, the general contractor. Thus, Lezzer was not in a direct contractual relationship with SGA or a subcontractor of SGA; Lezzer was, rather, a third-tier subcontractor. On the surface, therefore, it would appear that Lezzer is not one of those whose claims for materials was protected by the bond issued by Aetna.

The trial court held, however, that Independence was a first-tier subcontractor and that, therefore, Lezzer was a materialman who had a direct contract with a subcontractor, i.e., Independence. This finding is not supported by the record. The evidence discloses unequivocally that Lezzer had sold materials to Independence which, in turn, had contracted with Oreland, the first-tier subcontractor, to furnish and deliver to the job site all materials necessary for framing the buildings, including interior partitions and floor framing, exterior walls and roofs, wooden stairs, and windows.

In applying this limitation on the right to recover, the federal courts have created exceptions in cases where it is appropriate to pierce the corporate veil, i.e., where two corporations in the contractual chain are alter egos. See: United States ex rel. K & M Corp. v. A & M Gregos, Inc., supra at 47-48. See also: Glens Falls Insurance Co. v. Newton Lumber & Manufacturing Co., 388 F.2d 66 (10th Cir.1967), cert. denied, 390 U.S. 905, 88 S.Ct. 821, 19 L.Ed.2d 873 (1968); Continental Casualty Co. v. United States ex rel. Conroe Creosoting Co., 308 F.2d 846 (5th Cir.1962). Based on these decisions, Lezzer argues before this Court that SGA, the general contractor, and Oreland, the subcontractor, were alter egos and should be treated as one general contractor. The record, however, is inadequate to permit such a determination.

Although the record is clear that there were separate contracts (1) between SGA and Oreland, and (2) between Oreland and Independence, the trial court found that SGA and Oreland shared the same office and telephone. However, the trial court found no further facts relevant to this issue and concluded that “[s]ince we have found that Independence was a subcontractor in its relation to the Scott Project, it is not necessary to determine whether Oreland was the alter ego of SGA for purposes of determining Independence’s status under the Bond.”

We have made an independent examination of the record and conclude therefrom that the evidence is insufficient to support a determination that the corporate veil should be pierced.

[The] legal fiction of a separate corporate entity was designed to serve convenience and justice, Great Oak Building and Loan Assoc. v. Rosenheim, 341 Pa. 132, 19 A.2d 95 (1941), and will be disregarded whenever justice or public policy demand and when the rights of innocent parties are not prejudiced nor the theory of the corporate entity rendered useless. Gagnon v. Speback, 389 Pa. 17, 131 A.2d 619 (1957). We have said that whenever one in control of a corporation uses that control, or uses the corporate assets, to further his or her own personal interests, the fiction of the separate corporate identity may properly be disregarded. Watercolor Group, Inc. v. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976).

Ashley v. Ashley, 482 Pa. 228, 237, 393 A.2d 637, 641 (1978); Chambers v. Todd Steel Pickling, Inc., 323 Pa.Super. 119, 129, 470 A.2d 159, 164 (1983). See also: Rinck v. Rinck, 363 Pa.Super. 593, 526 A.2d 1221 (1987). In the instant case, there is no evidence of common ownership or interlocking boards of directors of the two corporations. Moreover, there is no evidence of fraud, illegality, or wrongdoing. Finally, there is no need to pierce the corporate veil in order to avoid injustice. As to the corporate enterprises of SGA and Oreland, whatever their relationship may be, both Aetna and Lezzer are not involved. On the contrary, both are innocent parties. Aetna issued a payment bond as requested by SGA and included therein terms which were satisfactory to SGA, the principal, and PHP, the obligee. Lezzer entered a contract to sell materials to Independence, with whom it had been doing business on prior occasions. It did so with knowledge of or the ability to learn the terms of the payment bond which had been issued by Aetna. As between Aetna and Lezzer, both innocent parties, there was no reason to pierce the corporate veils of SGA and Oreland in order to alter the terms of the bond which Aetna had agreed to write to protect designated subcontractors and materialmen.

Moreover, Lezzer failed to comply with the notice requirements of the bond. As a general rule, a surety is obligated only to the extent provided in the agreement of suretyship. See: Peter J. Mascaro Co. v. Milonas, 401 Pa. 632, 166 A.2d 15 (1960); Miller v. Commercial Electric Construction, Inc., 223 Pa.Super. 216, 297 A.2d 487 (1972); General State Authority v. Sutter Corp., 44 Pa.Cmwlth. 156, 403 A.2d 1022 (1979); 35 P.L.E. Suretyship §§ 52, 58. “Ordinarily, a creditor is not bound to give the surety notice of the principal debtor’s default, and a surety will be discharged upon the creditor’s failure to notify the surety of such default only if the contract of suretyship requires that notice of default be given.” 35 P.L.E. Suretyship § 79. In the instant case, the bond required notice. It provided as follows:

3. No suit or action shall be commenced hereunder by any claimant:

a) Unless claimant, other than one having direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer.

This court has upheld reasonable notice provisions contained in surety bonds and has determined the rationale for doing so as follows:

[T]he requirement of notice is a sensible and necessary provision, one which has been recognized by legislatures and courts. Its purpose, which is to permit general contractors to make payments to subcontractors without fear of subsequent suits by material suppliers who have not made their claims known, is vital for the protection of contractor and surety. The lower tier, materialman on the other hand, has the obligation to inspect the law and bond and is afforded ample opportunity to furnish notice of default. Having failed to comply with the reasonable condition precedent as to notice, the appellee’s claim should not be allowed.

Barati v. M.S.I. Corp., 212 Pa.Super. 536, 542-543, 243 A.2d 170, 174 (1968). See also: Scranton School District v. Casualty and Surety Co. of Hartford, 98 Pa.Super. 599 (1930). In Morefield Communications, Inc. v. Pursel Con struction Co., Inc., 359 Pa.Super. 514, 519 A.2d 470 (1986), we enforced a similar notice provision. We held that a materialman, who had given written notice on the ninety-sixth day following the furnishing of the last of the materials for which the claim was being made, was not entitled to recover against a surety whose bond had required written notice within ninety days.

Here, written notice undeniably was not given within the ninety day period specified in the bond. However, Lezzer had called SGA and Aetna by telephone and had related that it did not receive payment for the materials supplied to Independence for use on the Scott Project. Based on these telephone calls, the trial court found that Aetna had had actual notice of Lezzer’s claim within the ninety day period. Moreover, since the only reason for the notice provision contained in the payment bond was to ensure that there would be evidence of the giving of the required notice, the court held, the notice condition of the bond had been satisfied. Aetna concedes the telephone calls but challenges the trial court’s conclusion that Lezzer had complied with the condition of the bond. It argues that oral notice does not satisfy a provision which specifically requires written notice, and, further, that the oral notice which Lezzer did give failed to convey the fact that a claim was being made against SGA and/or Aetna, as required by the terms of the bond.

We are unable to find any appellate decisions in this Commonwealth resolving the precise issue presented by this case. In interpreting notice provisions in the past, we have looked for guidance to the body of federal case law which has evolved under Section 2(a) of the Miller Act. See: Morefield Communications, Inc. v. Pursel Construction Co., Inc., supra, 359 Pa.Superior Ct. at 517, 519 A.2d at 471. Section 2(a) of the Miller Act provides:

(a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under sections 270a to 270d of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop [sic] addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.

40 U.S.C.A. § 270b(a) (emphasis added). This notice provision is similar to the one contained in the payment bond which is at issue in this case. The only substantial difference is that the Miller Act notice is to be given to the general contractor only; whereas, under the payment bond at issue in this case, notice may be given to any two of either the principal (general contractor), the owner (obligee), or the surety.

Under federal case law the giving of written notice, as specified in section 2(a) of the Miller Act, has been held to be a condition precedent to the right of a supplier to bring an action on a payment bond. Bowden v. United States ex rel. Malloy, 239 F.2d 572 (9th Cir.1956), cert. denied, 353 U.S. 957, 77 S.Ct. 864, 1 L.Ed.2d 909 (1957). The Bowden court stated specifically that:

We think the teaching of the cases which have dealt most soundly with questions regarding the sufficiency of notice when it is required to be given by Section 270b(a) may be fairly summarized as follows: The giving of the written notice specified by the statute is a condition precedent to the right of a supplier to sue on the payment bond; the writing must be sent or presented to the prime contractor by or on the authority of the supplier; and the writing must inform the prime contractor, expressly or by implication, that the supplier is looking to the contractor for payment of the subcontractor’s bill.

Id. at 577 (footnote omitted). See also: Liles Construction Co. v. United States ex rel. Stabler Paint Manufacturing Co., Inc., 415 F.2d 889, 890 (5th Cir.1969); United States ex rel. Automatic Sprinkler Corp. of America v. Merritt-Chapman & Scott Corp., 305 F.2d 121, 123 (3d Cir.1962); T.F. Scholes, Inc. v. United States ex rel. H.W. Moore Equipment Co., 295 F.2d 366, 369 (10th Cir.1961); United States ex rel. American Radiator & Standard Sanitary Corp. v. Northwestern Engineering Co., 122 F.2d 600, 602 (8th Cir.1941); United States ex rel. Tecot Electric Supply Co. v. New Amsterdam Casualty Co., 185 F.Supp. 316, 317 (E.D.Pa.1960).

The specific question regarding whether oral notice by telephone can satisfy the written notice requirement under section 2(a) of the Miller Act was addressed by the United States District Court for Delaware in United States ex rel. Excavation Construction, Inc. v. Glenn-Stewart-Pinckney Builders and Developers, Inc., 388 F.Supp. 289 (D.Del.1975). The court concluded that telephone conversations did not satisfy the written notice requirement of the Miller Act. See also: United States ex rel. Fordham v. P.W. Parker, Inc., 504 F.Supp. 1066, 1070 n. 3 (D.Md.1980). The court reasoned:

It is true that the Act is entitled to a liberal construction and application to give effect to the Congressional intent of protecting those whose labor and materials go into public projects. MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890 [893], 88 L.Ed. 1163 (1944). However, “such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.” MacEvoy Co. at 107, 64 S.Ct. at 893. Accordingly, the Supreme Court has found that the Act provides a broad but not unlimited protection and one such limitation is that materialmen such as the use plaintiff here must give the “statutory notice” of their claim to bring suit on a payment bond. United States v. Carter, 353 U.S. 210, 217, 77 S.Ct. 793 [797], 1 L.Ed.2d 776 (1957). Thus, ... courts have continued to interpret the statutory requirement of written notice as a condition precedent to bringing suit in spite of a general policy of giving the Act a liberal construction.
The purpose for the statutory requirement that the notice be in writing is to prevent misunderstanding between the parties and to afford certain minimal evidence of communication between the parties. Coffee v. United States, 157 F.2d 968, 969 (C.A.5, 1946) and Apache Powder Company v. Ashton Co., 264 F.2d 417, 421 (C.A.9, 1959). Hence, the elimination of a requirement of any written form of notice in a case where the receipt and content of notice is disputed would tend to emasculate the clear intent of the statute to avoid such disputes. See United States v. F.A. Baehner, Inc., 326 F.2d 556, 558 (C.A.2, 1964).

United States ex rel. Excavation Construction, Inc. v. Glenn-Stewart-Pinckney Builders and Developers, Inc., supra at 296-297. In the same case, the court specifically rejected an argument that undisputed oral notice would relieve the claimant from the condition requiring written notice. The court concluded that “[w]ritten notice would evidence the nature of the communication and shed light on the context in which any information about the claim was given,” and would, further, indicate whether or not the general contractor could justifiably conclude that the communication was merely an attempt by the materialman to solicit the general contractor’s help in collecting from the subcontractor or formal notice by the materialman of an intent to collect directly from the general contractor and its surety. Id. at 297.

The notice requirement imposed by the Miller Act must apprise the general contractor of the amount of the claim and that the supplier or materialman is looking to the general contractor or its surety for payment. See: United States ex rel. San Joaquin Blocklite v. Lloyd E. Tull, Inc., 770 F.2d 862, 865 (9th Cir.1985); United States ex rel. Kinlau Sheet Metal Works, Inc. v. Great American Insurance Co., 537 F.2d 222, 223 (5th Cir.1976); United States ex rel. J.A. Edwards & Co. v. Thompson Construction Corp., 273 F.2d 873, 876 (2d Cir.1959), cert. denied, 362 U.S. 951, 80 S.Ct. 864, 4 L.Ed.2d 869 (1960). The communication in the instant case not only was not in writing, but it recited only that Lezzer had been supplying materials to Independence and that it had not been paid by Independence. The occurrence and the content of the several telephone conversations are undisputed. See: Trial Court’s Findings of Fact 30-35. At no time did Lezzer orally inform SGA and Aetna of either the amount of the claim or that Lezzer was in fact asserting a claim under the payment bond. Thus, even the oral notice upon which Lezzer relied was inadequate to comply with the notice required by the bond. It did not put Aetna on notice that a claim was being made against the surety bond or inform Aetna of the amount of the claim.

Despite the inadequacy of the notice, the trial court held that the oral conversations complied with the notice condition of the bond because they provided Aetna with knowledge of a potential claim. We disagree with the trial court’s analysis. In analyzing the notice requirement under the Miller Act, the court in Bowden v. United States ex rel. Malloy, supra, stated:

A brief letter from the supplier to the prime contractor will make certain and unambiguous the rights and liabilities of all concerned — the supplier, the prime contractor, and the surety. We do not believe that Congress intended to have it held that such little expenditure of effort is too much diligence to require of a supplier in order that he may secure his right of action on the payment bond.

Id. at 578 (footnote omitted). Although we acknowledge that the Miller Act is not directly applicable to the payment bond at issue in the instant case, the fact that the notice provision of that bond is substantially similar to section 2(a) of the Miller Act is of assistance to us in interpreting the language of the bond in the instant case. Moreover, the reasoning of the federal courts is persuasive. Such an interpretation will not only bring Pennsylvania in line with the federal decisions, but it will be consistent with the general rule in this Commonwealth that a surety is only obligated to the extent set forth in its agreement. See: Peter J. Mascaro Co. v. Milonas, supra; Miller v. Commercial Electric Construction, Inc., supra; General State Authority v. Sutter Corp., supra; 35 P.L.E. Suretyship §§ 52, 58. The notice provision at issue here stated specifically that written notice within the ninety day period was a condition precedent to Aetna’s liability on the bond. We are obliged to enforce the terms of the agreement. We may not impose upon Aetna an obligation to answer for the debts of another when its agreement specifically excludes claims by materialmen who have not contracted with the general contractor or a first-tier subcontractor and who have not given notice of their claims as required by the bond. This is peculiarly so where, as here, the payment guaranteed by Aetna, i.e., payment by the general contractor to the first-tier subcontractor and, in turn, by the first-tier subcontractor to the second-tier subcontractor, had been made and the default by the second-tier subcontractor in failing to pay its materialmen was not a risk included within the guarantee afforded by the terms of the bond. For all these reasons, we are constrained to conclude that the trial court erred when it found that Lezzer was a party entitled to recover on the payment bond issued by Aetna to SGA in connection with the Scott Project.

Judgment reversed and now entered in favor of appellant.

      . It appears that Independence had already been paid for the materials sold and delivered by Lezzer to the Scott project.

      . Aetna also contends that the trial court erred when it held that payment was an affirmative defense which was waived by not being pleaded and then refused to allow an amendment to Aetna’s answer to allege payment. In the same vein, Aetna contends that Lezzer failed to prove that it had not been paid for materials supplied to the Scott project. We find no merit in appellant's arguments. Payment is an affirmative defense which must be pleaded. See: Pa.R.C.P. 1030; Schmidt v. Paul, 377 Pa. 377, 105 A.2d 118 (1954); Arabian American Oil Co. v. Kirby & Kirby, Inc., 171 Pa.Super. 23, 90 A.2d 410 (1952). Moreover, it is difficult to find an abuse of discretion in the denial of a request to amend the pleadings which is made for the first time after the conclusion of the trial and more than a year and a half after the original answer had been filed. See: Solomon v. A. Julian, Inc., 304 Pa.Super. 119, 450 A.2d 130 (1982); Dale v. Crawford, 274 Pa.Super. 483, 418 A.2d 509 (1980). Finally, a review of the record discloses evidentiary support for the trial court’s finding that Independence did not pay Lezzer for the materials supplied. However, Independence had been paid for such materials by Oreland.

      . The notice provision at issue in Morefield Communications, Inc. v. Pursel Construction Co., Inc., 359 Pa.Super. 514, 519 A.2d 470 (1986), provided as follows:
      No suit or action shall be commenced hereunder by any claimant: (a) Unless claimant, other than one having direct contract with the Principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant ... furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished ... Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety....

        Id., 359 Pa.Superior Ct. at 516-517, 519 A.2d at 471.

      . A similar provision is found in section 194 of Pennsylvania’s Public Works Contractors’ Bond Law, which provides:
      § 194. Actions on payment bonds; service of notice
      (a) Subject to the provisions of subsection (b) hereof, any claimant who has performed labor or furnished material in the prosecution of the work provided for in any contract for which a payment bond has been given, pursuant to the provisions of subsection (a) of section 3 of this act, and who has not been paid in full therefor before the expiration of ninety days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he claims payments, may bring an action on such payment bond in his own name, in assumpsit, to recover any amount due him for such labor or material, and may prosecute such action to final judgment and have execution on the judgment.
      (b) Any claimant' who has a direct contractual relationship with any subcontractor of the prime contractor who gave such payment bond but has no contractual relationship, express or implied, with such prime contractor may bring an action on the payment bond only if he has given written notice to such contractor within ninety days from the date on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished.
      Notice shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business or served in any manner in which legal process may be served in the manner now or hereafter provided by law for the service of a summons, except that such service need not be made by a public officer.
      Act of December 20, 1967, P.L. 869, § 4, 8 P.S. § 194.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    537 A.2d 866
    COMMONWEALTH of Pennsylvania v. Richard WIENCKOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1987.
    Filed Feb. 17, 1988.

      Aaron C. Finestone, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County challenging the conviction of Richard Wienckowski by a jury for possession of an instrument of crime, simple assault, involuntary deviate sexual intercourse, and kidnapping. C. Van Young-man, Esquire, represented Wienckowski at trial and subsequently filed post-verdict motions challenging the weight and sufficiency of the evidence. Aaron Finestone, Esquire, represented Wienckowski on these post-verdict motions, and supplemented them with post-verdict motions alleging ineffective assistance of counsel. An evidentiary hearing was held on the ineffectiveness issue. Shortly thereafter, the post-verdict motions, both initial and supplemental, were argued, briefed, and denied.

On the lesser charges of simple assault and possession of an instrument of crime, Wienckowski was sentenced to identical one-to two-year periods of incarceration to run concurrently with a six- to fifteen-year sentence on the involuntary deviate sexual intercourse conviction. On the kidnapping charge, he received a sentence of four to fifteen years to run consecutively with the sentence on the sex offense, bringing his period of incarceration to a total of ten to thirty years. Counsel filed a motion to reconsider sentence in which he argued merger and challenged the imposition of consecutive sentences. The trial judge granted him limited relief by suspending the sentence for simple assault on the grounds of merger and reimposing the same sentence on the other convictions.

On appeal, Wienckowski raises three issues with respect to his conviction and sentencing. First, he argues that his trial counsel was ineffective in: (1) giving an inadequate opening statement; (2) bringing out damaging evidence which had not been introduced by the Commonwealth; and (3) attacking Wienckowski’s character during closing argument and pronouncing him guilty of crimes for which he had not been charged. Wienckowski’s second contention is that the trial court’s verdict was based on insufficient evidence or was contrary to the weight of the evidence, due to the lack of credibility of the complaining witness. The appellant’s final contention is that the trial court erred in imposing consecutive sentences. We affirm.

Ineffectiveness of Counsel

In any ineffectiveness of counsel claim, the standard for determining counsel’s ineffectiveness is based upon the presumption of competent stewardship, and the burden of proving otherwise is on the defendant. See Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987).

To make out a valid claim of ineffectiveness of counsel, then, a defendant must first demonstrate that the underlying issue is of arguable merit. If so, inquiry must then be made into whether the course of action chosen by counsel was not reasonably designed to protect the defendant’s best interests. Id. Finally, the defendant must show that he was actually prejudiced by his counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The first ineffectiveness claim raised by Wienckowski is that his counsel improperly prejudiced his case by failing to make an adequate opening statement. Specifically, Wienckowski contends that the opening statement failed: (1) to provide the jury with the opportunity to establish a rapport with counsel; (2) to apprise the jury of the defense theory of consent; and (3) to instruct the jury to look for any inferences of consent which, appellant believes, could be drawn from both complainant’s mode of dress and her demeanor.

This argument fails for one very simple reason. The function of the opening statement is not an evidentiary one; rather, its purpose is merely to inform the jury about the case, to provide them with some background, and to present what each side intends to prove. See Commonwealth v. Saltzberg, 358 Pa.Super. 39, 516 A.2d 758 (1986). There is no requirement in Pennsylvania that the defense attorney use the opening statement to establish a “rapport” with the jury. Instead, Pennsylvania courts consider such questions as the contents of an opening statement, or even whether to use one at all, to be matters of trial strategy best left to trial counsel. Commonwealth v. Tarver, 253 Pa.Super. 185, 384 A.2d 1292 (1976).

In the case at bar, trial counsel indicated at the ineffectiveness hearing that, due to the fact that his investigations into the case produced no evidence suggesting that the victim was, in fact, a prostitute, he believed that the best course of action would be to admit what was unavoidable (the identification of the parties to the incident) and to avoid any accusations that the victim was a prostitute or of such ilk until such time as he could hear her testimony. In light of the fact that the victim was a twenty-six-year-old retarded woman of unpredictable disposition, we believe such an action to have been reasonably designed to effectuate the best defense possible under unpredictable circumstances.

We similarly do not find that the failure to preview the use of the consent defense in the opening statement prejudiced the defendant. Because the entire body of the case was the word of the complainant against the word of the defendant, all relevant facets of the consent defense were made abundantly clear by the defendant’s trial testimony. An alternative approach in the opening statement may have been no more effective in the long run, but the appellant cannot avail himself of such hindsight analysis. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

In a closely related issue, Wienckowski claims that his defense counsel was ineffective in failing to “develop” evidence later at trial as to what the victim wore and how she was “hanging out” on the corner. This argument, although briefed and argued before the trial judge, was not memorialized in post-trial motions. For this reason, the trial judge considered it waived, citing Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). In his brief, however, Wienckowski argues this issue anew without providing any legal argument suggesting that this issue should be treated as anything other than waived. Consequently, we likewise consider the issue waived.

Wienckowski makes additional ineffectiveness claims which merit the same treatment. Specifically, he alleges that his counsel was ineffective in: introducing evidence concerning the defendant’s gun; stipulating to hearsay evidence; failing to object to hearsay testimony; and failing to pursue the issue of identification.

Wienckowski’s final claim of ineffectiveness is that the closing argument employed by counsel unduly prejudiced him in the eyes of the jury. Specifically, Wienckowski objects to counsel’s remarks that his client was a “bad person” and was guilty of crimes for which he had not been charged. At the ineffectiveness hearing, trial counsel indicated that he had done so in an attempt to ensure that the jury would divorce from their consideration of his guilt on the charges brought any emotional reaction to his client’s testimony that he believed he was hiring a prostitute whose earnings he later stole.

In addition, trial counsel indicated that, by expressing distaste to the jury for his client’s “seamy” lifestyle, he was establishing common ground with the jury and demonstrating that it was possible to both be shocked by the defendant’s professed lifestyle and yet still reach a verdict of not guilty on the crimes charged. As the trial judge noted, the admission of “peccadillos” against the defendant’s obvious interest is also a legitimate method of demonstrating his honesty, since a person who is lying would ordinarily place himself in the best light possible.

Clearly, then, the actions of the trial counsel had a reasonable basis designed to effectuate the appellant’s best interests. It follows that any prejudice that can be drawn from the counsel’s characterization of his client fell short of constituting reversible error. Cf. Commonwealth v. Zimmerman, 351 Pa.Super. 5, 504 A.2d 1329 (1986) (counsel’s characterization of his case as “gruesome” and his admonitions that the jury should not confuse the client with his counsel held insufficient to merit reversal).

Sufficiency and Weight of the Evidence

The second argument raised by Wienckowski is that the verdict was based on insufficient evidence, or, in the alternative, it was contrary to the weight of the evidence. Evidence is legally sufficient to support a verdict if, when viewed in the light most favorable to the Commonwealth and making all the reasonable inferences flowing therefrom, the fact finder could find each element of the offense beyond a reasonable doubt. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). Evidence is adequately weighty if it is not so contradictory, uncertain, or tenuous that the verdicts based upon it would shock the conscience of the court. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986).

The testimony of the victim presented the jury with a very detailed and consistent account of the events of July 28, 1984. On that night, the victim, a mentally retarded young woman, had just exited a 7-Eleven convenience store on her way back to her friend’s home a few blocks away when Wienckowski accosted her. He forced her into his cab at knife-point, handcuffed her to the steering column, and engaged her in a sadistic and protracted course of sexual abuse.

The only challenge Wienckowski makes to the sufficiency of the evidence at trial is that the verdict was based upon testimony which, he contends, was not credible. It is Pennsylvania law, however, that the trier of fact is free to believe all, part, or none of the evidence adduced at trial. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986). Thus, even uncorroborated testimony of a prosecution witness may be sufficient to convict, despite contrary evidence from the defense, if the trier of fact finds the former credible.

The only possible inconsistencies Wienckowski charges to the victim’s testimony concern trivial matters connected to the series of events that were the basis of the criminal charge only in an incidental fashion. For example, at the preliminary hearing, the victim testified that she was abducted after leaving the convenience store. At trial, she testified that she was abducted before entering the store. She was also confused as to whether she had or whether anyone had given her car fare after Wienckowski had released her. As the trial judge properly noted, no person who had undergone such a traumatic experience can be expected to recount trivial details of the eleven-hour incident in sequence each time she tells of the incident. It is only when contradictory evidence is substantial and goes to a material issue so that it tends to undermine the integrity of the verdict that the court, feeling the pangs of conscience, should intervene to take from the jury its fact-finding role. Commonwealth v. Yocum, 274 Pa.Super. 533, 418 A.2d 534 (1980). Consequently, since the testimony of the complainant was sufficient to prove every element of every crime, we find that testimony sufficient to support the verdict.

Wienckowski’s challenge to the weight of the evidence produced at trial fails for a similar reason. Appellate courts are reluctant to entertain challenges to the weight of evidence, when such action would require them to assess the credibility of the testimony offered at trial from a “cold record.” See, e.g., Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). In any event, other than pointing out very minor inconsistencies in the complainant’s testimony, Wienckowski has failed to produce any' valid argument suggesting that the victim’s testimony should be considered so uncertain as to cause the subsequent verdict to shock the court’s conscience. Consequently, we agree with the trial judge’s holding that the evidence at trial was sufficiently weighty to convict Wienckowski.

Consecutive Sentence

The appellant’s final argument, as written in the “Statement of Questions Involved” in his brief, is “[d]id the lower court err in imposing consecutive sentences?” In multiple conviction cases arising out of one incident, the decision whether to run multiple sentences concurrently or consecutively is discretionary. Commonwealth v. Mueller, 274 Pa.Super. 397, 418 A.2d 465 (1980); cf. 42 Pa.C.S. § 9757. The appellant has failed, however, to set forth a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Because the absence of such a concise statement was brought to this court’s attention in accordance with Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), we must consider that absence to constitute a substantial defect in appellant’s brief. Consequently, we will not address the merits of this issue on appeal.

The defendant raises two additional sentencing claims in the “Argument” section of his brief that are not specifically mentioned in his “Statement of Questions Involved.” Because the first of these issues, that the sentence was “unduly harsh,” involves a discretionary aspect of sentencing, we consider it to be waived. See Pa.R.A.P. 2116(a); Commonwealth v. Evans, 332 Pa.Super. 301, 481 A.2d 625 (1984) . We cannot so easily dispense with the second issue. In that argument, the Wienckowski contends that the involuntary deviate sexual intercourse conviction should merge with the kidnapping conviction for sentencing purposes, as involving one single transaction. This is a challenge to the legality of the sentence and cannot be waived. See Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921 (1985) . Consequently, we will address it on appeal.

Before a court may find that separate statutory offenses merge, it must determine not only that the crimes arose from the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil. Commonwealth v. Williams, 344 Pa.Super. 108, 126-128, 496 A.2d 31, 41-42 (1985). Thus, if a defendant commits several discreet criminal acts, he may be punished separately for them regardless of their close relationship in a single criminal episode, “as long as each act is a separate injury in itself.” Id. Further, if the defendant’s conduct consists of a single physical episode, the merger doctrine does not bar separate punishments if there are substantially different Commonwealth interests at stake. See, e.g., Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987).

In applying this test to the facts, it is clear that the offenses do not merge. In the first place, the kidnapping of the complainant was not a prerequisite to the subsequent involuntary deviate sexual intercourse. Once a defendant commits a crime, he will not be permitted to escape liability for additional crimes under the guise that they were committed in the same criminal transaction. See, e.g., Commonwealth v. Gray, 339 Pa.Super. 385, 489 A.2d 213 (1985). Furthermore, even if this court were to hold that the two offenses did, in fact, arise out of the same transaction, the offenses would not merge because kidnapping and involuntary deviate sexual intercourse offend fundamentally different Commonwealth interests.

Judgment of sentence is affirmed.


author: BECK, Judge: DEL SOLE, Judge,

text:
    537 A.2d 871
    COMMONWEALTH of Pennsylvania v. William MacSHERRY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Feb. 16, 1988.

      James G. Barnes, Assistant Public Defender, Doylestown, for appellant.
    James C. Dalton, Assistant District Attorney, Doylestown, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   BECK, Judge:

Appellant was found guilty at a trial de novo on November 8, 1985. He filed a “Motion in Arrest of Judgment” on November 18, 1985. Although this original post-verdict motion suggested that appellant might file additional reasons after the notes of testimony were transcribed, the record does not reveal that he sought or received permission from the trial court to do so. Nevertheless, on April 17, 1986, appellant filed a “Supplemental Motion for a New. Trial and in Arrest of Judgment.”

We first address whether the additional issues raised in appellant’s supplemental post-verdict motions are preserved for our review. Appellant filed his supplemental post-verdict motions more than five months after the verdict. A defendant normally has ten days to file post-verdict motions. Pa.R.Crim.P. 1123(a). The trial court considered all of appellant’s post-verdict motions, including all the supplemental motions. A trial court’s acting on untimely filed post-verdict motions, however, does not preserve for review issues raised in those motions. Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983).

We note that in a significant number of criminal cases appealed to this court, the records show that a defendant files post-verdict motions (often boilerplate) which include a statement to the effect that “defendant reserves the right to file supplemental post-verdict motions after the filing of the trial transcript.” We find no support in the law or court rules for such a “right,” absent an express grant of permission from the trial court. The last sentence of Rule 1123(a) states: “If the grounds asserted do not require a transcript, neither the filing, argument, nor hearing of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.” This sentence implies that the trial court may allow filing of delayed post-verdict motions if the grounds require waiting for the transcript. In 1983 this court noted the ambiguity in the Rule and invited its amendment:

No doubt some assignments of error, especially to rulings on evidence and the charge, can be made specific only by reference to the transcript, but counsel shouldn’t need the transcript to say in what respect the evidence was “insufficient” or why the verdict was “against the weight of the evidence.” In any event, counsel may, after reviewing the transcript obtain leave to supplement boiler-plate assignments with specific ones. (It is to be hoped that the Procedural Rules Committee will re-examine Rule 1123; its ambiguities have generated quite unnecessary litigation. The procedure by which assignments may be added to a post-verdict motion might well be spelled out.)

Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268, 1273-74 (1983) (en banc) (emphasis added). Although the Rule was amended in 1985 to require specificity in post-verdict motions, the Rule still fails to spell out a procedure for supplementing post-verdict motions.

In a recent case, the Superior Court clarified the steps an appellant must take to preserve issues raised in supplemental post-trial motions. “[Permission must be requested and granted on the record before supplemental post-trial motions may be filed.” Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987) (emphasis omitted).

In the instant case, the record does not show that appellant was granted permission to file untimely post-verdict motions. Thus, appellant’s “Supplemental Motion for a New Trial and in Arrest of Judgment” was not timely filed and preserves no issues for our review.

Next, we consider the effect of appellant’s original “Motion in Arrest of Judgment,” which was timely filed. Appellant’s motion states the charge against him, and then appellant moves the Court to arrest the judgment against him and assigns the following reason therefore:

1. The verdict was against the weight of the evidence in that the Commonwealth failed to establish that the defendant’s license was in fact subject to a driving under the influence related suspension on the date on which the defendant was cited for operating a motor vehicle while under driving under the influence related suspension.

We find that this motion is boilerplate and preserves no issue for our review. Holmes. The motion is defective in several respects. First, although the motion purports to say more than simply “the verdict was against the weight of the evidence,” the rest of the sentence merely recites the elements of the offense and thus fails to specify why the verdict was against the weight of the evidence. In Holmes we gave this example of such a specific motion: “that the identification testimony was so vague, and the alibi testimony so powerful, that the verdict shocks the conscience.” 315 Pa.Super. at 267, 461 A.2d at 1273. Second, appellant has muddled the distinction between evidentiary weight and sufficiency by raising a weight of the evidence claim in a motion in arrest of judgment. See Commonwealth v. Whiteman, 336 Pa.Super. 120, 123-26, 485 A.2d 459, 461-62 (1984). The proper procedure to challenge the weight of the evidence is by a motion for a new trial. Holmes, 315 Pa.Super. at 260, 461 A.2d at 1270. Third, if the motion preserves any issue for review, it would not be either of the issues in appellant’s statement of questions presented in his brief to this court.

Appellant’s Statement of Questions Presented is as follows:

A. Did the lower court err in applying 75 Pa.C.S. § 1541, by finding the appellant guilty of driving under suspension/driving under the influence related, when the statute clearly states that suspension commences only after the license is surrendered to the state, and at the time of the appellant’s arrest, he had not yet surrendered his license?

B. Did the lower court err in finding the appellant guilty of driving under suspension/driving under the influence related in violation of 75 Pa.C.S. § 3731(e)(6), when the court agreed with the Pennsylvania Department of Transportation’s policy of extending a one month suspension indefinitely until the license is ultimately surrendered to the state?

These are not challenges to the weight of the evidence. See Commonwealth v. Nelson, 514 Pa. 252, 523 A.2d 723 (1987); Commonwealth v. Stambaugh, 355 Pa.Super. 73, 512 A.2d 1216 (1986); Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985). Thus, we conclude that appellant has preserved no issues for our review.

Although we find waiver, we choose to consider an issue of statutory interpretation in response to the dissent which addresses the merits. Appellant claims that although he received notification to surrender his license, his license was not suspended because he never surrendered it. Appellant bases his contention on his interpretation of 75 Pa.Cons. StatAnn. § 1541(a):

§ 1541. Period of revocation or suspension of operating privilege
(a) Commencement of period. — The period of revocation or suspension of the operating privilege shall commence on the date on which the driver’s license was surrendered to and received by the court or the department, as the case may be. The period of revocation or suspension of a nonresident licensed driver or an unlicensed driver shall commence on the date of conviction, on a date determined by the department in accordance with its regulations. The department may, upon request of the person whose license is suspended, delay the commencement of the period of suspension for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license has been suspended.

75 Pa.Cons.Stat.Ann. § 1541 (Purdon 1977) (amended 1986).

This section is ambiguous. It could mean, as the dissent asserts, that a driver’s operating privilege is not under suspension until he returns his license to PennDOT, however long that may take. It could also mean that the driver’s operating privilege is suspended on the date set by PennDOT but that the prescribed period of suspension does not commence running (for the purpose of crediting the driver against the term of suspension and thus moving the driver closer to restoration of the privilege) until he returns his license to PennDOT. When faced with the interpretation of an ambiguous statute, we must ascertain and effectuate the intention of the legislature. 1 Pa.Cons.Stat.Ann. § 1921(a) (Purdon Supp.1987); Commonwealth, Dept. of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987).

The Statutory Construction Act sets out the factors to be considered in ascertaining legislative intent:

§ 1921. Legislative intent controls

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such statute.

McFarren, 514 Pa. at 415, 525 A.2d at 1187 (quoting 1 Pa.Cons.Stat.Ann. § 1921(c) (Purdon Supp.1987)).

In interpreting the legislative intent, we may presume that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa. Cons.Stat.Ann. § 1922 (Purdon Supp.1987).

We read Section 1541 of title 75 together with Section 1540. Section 1540 provides:

§ 1540. Surrender of license.
(a) Conviction of offense. — Upon a conviction for any offense which calls for mandatory revocation in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver’s license then held by the defendant and shall forward the driver’s license together with a record of the conviction to the department.
(b) Suspension of operating privilege. — Upon the suspension of the operating privilege of any person by the department, the department shall forthwith notify the person in writing to surrender his driver’s license to the department for the term of suspension.

75 Pa.Cons.Stat.Ann. § 1540 (Purdon 1977) (amended 1985 & 1986). The purpose and remedial objective of these provisions is to provide PennDOT with a means to suspend the operating privilege it has granted to a Pennsylvania driver and thus to keep that driver off Commonwealth roadways.

The dissent’s interpretation would mean that a dangerous driver could delay indefinitely the beginning of his suspension by simply refusing to return his license, and thus continue to pose a hazard to other travelers on our highways. Such an unreasonable result could not have been intended by the legislature.

We are persuaded in this regard by the reasoning of Judge Biester of the Court of Common Pleas of Bucks County in Commonwealth v. Trunzo, 20 Pa.D. & C.3d 738 (1981). In Trunzo, the driver did not return his license and claimed he had not received notice of the suspension because he had moved without notifying PennDOT of his new address and the notice was sent to his old address. Judge Biester concluded:

If one applied literally the thesis of defendant, a contumacious driver could, by failing to apprise the Commonwealth of any change of address, completely escape for an indefinite period of time the effect of the order of suspension. In fact this case defendant did not surrender his operator’s license until March of 1980 virtually a year after the effective date of the suspension. The court does not believe that this was the intention of the legislature and rather determines that section 1541(a) simply prescribes [notwithstanding the use of the word “commence”] the method of computation by which the ultimate termination of the period of suspension may be established____ We cannot believe that the legislature intended to reward a stubbornly evasive operator under these circumstances by permitting him through his own illegal and evasive conduct to avoid the impact of the suspension for an indefinite period of time____

20 Pa.D. & C.3d at 742-44 (footnote omitted).

This court has recently affirmed a conviction for the offense of driving while operator’s privilege was suspended where the defendant had not returned his license to Penn-DOT. Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987).

Further, the General Assembly, apparently aware of the ambiguity of sections 1540 and 1541, amended them, effective February 9, 1987. The relevant provisions are now as follows:

§ 1540. Surrender of license
(a) Conviction of offense. — Upon a conviction by a court of competent jurisdiction for any offense which calls for mandatory suspension in accordance with section 1532 (relating to revocation or suspension of operating privilege), the court or the district attorney shall require the surrender of any driver’s license then held by the defendant and shall forward the driver’s license together with a record of the conviction to the department. The suspension or revocation shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.
(b) Suspension or revocation of operating privilege.— Upon the suspension or revocation of the operating privilege of any person by the department, the department shall forthwith notify the person in writing at the address of record to surrender his driver’s license to the department for the term of suspension or revocation. The suspension or revocation shall be effective upon a date determined by the department or the date of surrender of the license to the department if that date is subsequent to the department’s notice to surrender the license, whichever occurs first. Upon surrender of the license, the department shall issue a receipt showing the date that it received the license.
§ 1541. Period of revocation or suspension of operating privilege
(a) Commencement of period. — The period of revocation or suspension of the operating privilege shall commence as provided for in section 1540 (relating to surrender of license). No credit toward the revocation or suspension shall be earned until the driver’s license is surrendered to the department, the court or the district attorney, as the case may be. A nonresident licensed driver or an unlicensed driver shall submit an acknowledgment of suspension or revocation to the department in lieu of a driver’s license. The department may, upon request of the person whose license is suspended, delay the commencement of the period of suspension for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license has been suspended.

75 Pa.Cons.Stat.Ann. §§ 1540(a), (b), 1541(a) (Purdon Supp. 1987) (emphasis added). These provisions now make clear that the legislature intends to encourage suspended drivers to return their licenses to PennDOT before the beginning of the term of suspension by providing that return of the license begins the running of the term. This is new language, but not a new policy. Former Section 1541(a), although ambiguous, has the same meaning. Thus, since appellant never returned his license, the period of the suspension of his operating privilege commenced on the effective date set in PennDOT’s letter of October 9, 1984, that is, on November 12, 1984.

Based on our finding of waiver, we do not address other substantive issues which appellant raises.

Judgment of sentence affirmed.

DEL SOLE, J., files dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent. Unlike the majority, I would find that the Appellant has preserved his claims for appellate review and therefore would reach the merits of his contentions.

Appellant was found guilty at trial on November 8, 1985. He filed a “Motion in Arrest of Judgment” on November 18, 1985. The motion assigned the following reason for seeking arrest of judgment:

The verdict was against the weight of the evidence in that the Commonwealth failed to establish that the defendant’s license was in fact subject to a driving under the influence related suspension on the date on which the defendant was cited for operating a motor vehicle while driving under the influence related suspension.

It is the majority’s opinion that the above motion is boilerplate and preserves no issue for review and furthermore that the Appellant has confused the distinction between evidentiary weight and sufficiency by raising a weight of the evidence claim in a motion in arrest of judgment. I disagree. I have examined the Appellant’s post-trial motions and find that a substantive reading of his claim leads to the inescapable conclusion that his challenge satisfies the requirements set forth in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Additionally, the defendant raised this issue during the trial. (N.T. 9-11). Clearly, the trial court was made aware of the defendant’s contention as required. The defendant’s motion claims that the Commonwealth failed to prove his license was suspended on the day he was charged with driving under suspension. That is not boilerplate and specifically raises the issues before us.

Therefore, I find it necessary to discuss the merits of the Appellant’s claim. This is an appeal from a judgment of sentence following a conviction for driving with a suspended license. I would reverse.

The Appellant was charged with driving under the influence and placed in ARD on September 20, 1984. One of the conditions of his ARD placement was a thirty day suspension of his motor vehicle driver’s license.

The Pennsylvania Department of Transportation sent Mr. MacSherry the following notice on October 9, 1984:

As a result of the order from the Court of Bucks County, your driving privileges are being suspended for a period of 1 month as mandated by section 3731(E)(6)(H).
In order to comply with this suspension/revocation, you are required to return any current driver’s license, learner’s permit and/or temporary driver’s license (camera card) in your possession no later than the effective date listed below. Failure to comply with this notice shall result in this bureau referring this matter to the Pennsylvania State Police for prosecution under section 1571(A)(4) of the vehicle code.
You will not be permitted to operate a motor vehicle until you meet all requirements as stated above. Please allow five to seven days for license to be returned to you.
Effective date 11/12/1984 12:01 a.m. Credit will not begin until license is received by bureau.

This notice was received at the home of the Appellant’s mother from which the Appellant had recently moved. Appellant testified at trial that his mother told him about the notice in a telephone conversation, but that he never actually saw the notice. Appellant never surrendered his driver’s license as required.

On March 6, 1985, the Appellant was stopped by a police officer while he was driving a car with an expired inspection sticker. The officer discovered that Mr. MacSherry had received the notice of October 9, 1984 but had not surrendered his license. The Appellant was then cited for driving under suspension and subsequently convicted of this offense by the Court of Common Pleas of Bucks County.

On appeal Mr. MacSherry argues that he was not driving under suspension on March 6, 1985. He claims his. license had never been suspended because he never surrendered it. He bases this argument on the language of 75 Pa.C.S.A. § 1541(a) which provides:

§ 1541. Period of revocation or suspension of operating privilege.
(a) Commencement of period. The period of revocation or suspension of the operating privilege shall commence on the date on which the driver’s license was surrendered to and received by the court or the department, as the case may be. The period of revocation or suspension of a nonresident licensed driver or an unlicensed driver shall commence on the date of conviction, or in the case of a revocation or suspension without a conviction, on a date determined by the department in accordance with its regulations. The department may, upon request of the person whose license is suspended, delay the commencement of the period of suspension for a period not exceeding six months whenever the department determines that failure to grant the extension will result in hardship to the person whose license is suspended. (Emphasis added).

75 Pa.C.S.A. § 1541(a).

The Appellant argues that by statute a driver license suspension does not begin until the license is surrendered. Clearly, this is the plain meaning of the words contained in 75 Pa.C.S.A. § 1541(a).

The Commonwealth claims that MacSherry’s position that his conviction cannot stand because he failed to return his license is implausible. The Commonwealth argues that if we accept the Appellant’s argument the department would be at the whim of the offender in that the suspension would start, if ever, at the Appellant’s convenience.

I do not find that the Commonwealth’s argument is persuasive. The motor vehicle code provides the department with other means to enforce an order to surrender a license.

The notice which was sent to Mr. MacSherry on October 9, 1984 by the department warned him that his failure to surrender his license could lead to prosecution under 75 Pa.C.S.A. § 1571(a)(4). This section provides that it is unlawful for any person to fail or refuse to surrender a driver’s license to the department upon lawful demand. Mr. MacSherry has not been prosecuted under this section.

The department may also order the police to seize a license. The record in this case shows that a police pick up of Mr. MacSherry’s license was ordered by the department on December 11, 1984. The record does not reveal why this pick up was not completed. Further, the license can be withheld at the time of renewal for the appropriate period.

I find that the Appellant’s argument is a sound one. The plain meaning of § 1541 of the motor vehicle code is that the suspension commences when the license is surrendered. In this case the Appellant did not surrender his license and so his suspension had not begun when he was cited for driving under suspension. I would therefore reverse the judgment of sentence. The department had means at its disposal to enforce the surrender of the Appellant’s license in order to commence his period of suspension. A conviction for driving under suspension was not an appropriate means.

Also, it must be pointed out that in no event could an operator extend the period of noncompliance with the order to return his license beyond the time for renewal of the license. Certainly when the operator’s license is to be renewed, the Commonwealth could have under the then existing statute, refuse renewal for the suspension.

The majority cites the revised language in §§ 1540 & 1541 and cavalierly states: “the General Assembly apparently aware of the ambiguity of §§ 1540 & 1541, amended them,”. Certainly, the language found in § 1541 holding that the period of revocation or suspension commences on the date which the license was surrendered to the court or the department is not ambiguous. More specifically, the amendments to the statutes indicated in the majority, all of which occurred after the charges were filed in this case and after the violation alleged occurred, clearly indicate the General Assembly’s intent to correct an anomaly in the law by providing that upon conviction of an offense with a mandatory suspension that the court shall confiscate the license immediately at the time of the conviction or, in cases where the department notifies of a suspension that the suspension begins on the date set by the department but does not end until the appropriate time expires following receipt of the license. That is the way the law presently reads, it is not the way the law was at the time of the defendant’s arrest.

How the majority finds an ambiguity in clear language of the statute and attempts to bolster its ambiguity argument by citing sections of amended statutes which clearly change the law is beyond me. For these reasons I must dissent.

      . It seems to this author that the better policy would be not to require a separate request for permission to file supplemental post-trial motions. Such a step is a needless burden on the judicial system in a situation where appellant has reserved the right to file supplemental post-trial motions, the appellant does so timely and the trial court decides the post-trial motions. However, the requirement is part of the procedural law of this Commonwealth until it is modified by court rule or decision.


author: POPOVICH, Judge:

text:
    537 A.2d 878
    Ernest and Vivian JACKSON, Appellants, v. MODERN MAILERS, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1987.
    Filed Feb. 16, 1988.

      P. Joseph Nicola, Philadelphia, for appellants.
    Nathaniel Ehrlich, Philadelphia, for appellee.
    Before BECK, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which granted the motion for summary judgment which was filed by appellee-defendant, Modern Mailers, Inc. We affirm in part and must remand in part for the reasons herein stated.

Appellants-plaintiffs, Ernest and Vivian Jackson, raise the following issues: (1) whether the complaint which was filed on October 21, 1983, was within the statute of limitations and had the effect of tolling the statute; and (2) whether the complaint which was filed on October 21, 1983, sufficiently notified appellees of the existence of a claim against it to permit appellants to proceed with the subsequently filed complaint of June 4, 1985.

The facts in this case set forth the following scenario:

On June 2, 1982, appellants instituted an action by filing a writ of summons against the appellee for injuries sustained on January 5, 1982, when the car driven by Ernest Jackson allegedly lost control during the time that Jackson was driving down the service road. The appellee’s driveway collapsed, and the asphalt dropped causing Jackson’s vehicle to lose control.

The appellee filed a rule to file a complaint upon the appellants, and a non pros was entered six months later, on May 6, 1983. Subsequently, on October 21,1983, appellants filed a trespass action listing the same court term and number as the action which was non prossed.

On February 13, 1985, appellants then filed a motion to compel answers to interrogatories against the appellee. Two months later, the trial court entered an order denying the motion because the docket entries were identical to the action which was non prossed. Appellants appealed, and we quashed the appeal. Jackson v. Modern Mailers, Inc., 364 Pa.Super. 654, 525 A.2d 822 (1987).

On May 24, 1985, a petition to open non pros was filed, which was denied. Another appeal followed, and we quashed.

On June 4, 1985, appellants filed another complaint under a different court term and number. However, this complaint asserted the same theories and injuries and was based upon the same events as were set forth in the October, 1983, complaint. On September 19, 1986, appellee filed a motion for summary judgment which was granted on February 2, 1987. This appeal followed.

We affirm in part and must reverse in part.

We recognize the following principles:

When an action is dismissed, with prejudice, for failure to prosecute a claim, it is contemplated that that action is terminated unless the plaintiff takes positive steps to reinstate the cause of action within the applicable period of the statute of limitations. As the Commonwealth Court explained in Thompson v. Cortese, 41 Pa.Commw. 174, 398 A.2d [1079] (1979), when an action is dismissed with prejudice for failure to prosecute a claim, it is not a denial of relief to the plaintiff because it is not an adjudication on the merits; rather, it means only that the plaintiff whose complaint is thus dismissed cannot reinstate that complaint unless he first petitions the court to exercise its discretion to remove the non pros and establishes certain facts. Id. at 178, 398 A.2d at 1082. See also Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Company, 298 Pa.Super. 454, 444 A.2d 1272 (1982). The underlying reasons for such a policy are clear-prompt, final conclusion of pending matters, and removal from the docket of cases which would otherwise clutter it for an unreasonable length of time. Cf. Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Company, supra. Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 549, 496 A.2d 1240, 1242 (1985).

In this case, the trial court correctly concluded that the two year statute of limitations in this case bars the appellants’ action. 42 Pa.C.S.A. § 5524. This issue has been the subject of previous opinions of this Court, and we again conclude that appellants’ action is barred. As the trial court aptly stated, “notice in fact founded upon a nullity in the law cannot be denied to be an effective basis for nullifying” the statute of limitations. Trial Court’s Opinion of April 7, 1987 at 3.

For the reasons set forth in the trial court and in the prior opinions of this Court, appellants are not entitled to relief.

Appellee also requests that this Court award counsel fees pursuant to Pa.R.A.P. 2744 which provides:

If an appellate court shall determine that an appeal is frivolous, it may award as further costs an attorney fee of $25 and damages at the rate of 6% per annum in addition to legal interest.
See also 42 Pa.C.S.A. § 2503(9) and 42 Pa.C.S.A. § 1726(1) and (3).

According to appellants, counsel fees should not be awarded because their filing of a new complaint under a different term and number presented a different issue not previously addressed by this Court.

Contrary to appellants’ argument, we have previously ruled upon the legal effect of a judgment of non pros and have said:

The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations. Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770 (1976); Bucci v. Detroit Fire and Marine Insurance Co., 109 Pa.Super. 167, 167 A. 425 (1933).
Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 497, 445 A.2d 1237, 1239 (1982).

Because of the settled nature of the legal issue presented and because of appellants’ two previous appeals to this Court regarding the same cause of action, we conclude that the instant appeal is frivolous and that counsel fees should be awarded.

The order is affirmed in part, the matter is remanded in part for the determination of counsel fees. Jurisdiction is relinquished.

      . We note that in August of 1987, this Court granted appellants' petition for leave to file a reply brief.


author: MONTGOMERY, Judge:

text:
    537 A.2d 881
    James REMAS, Appellee, v. DUQUESNE LIGHT COMPANY, a Corporation, Appellant, v. GREGG SECURITY SERVICES, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed Feb. 16, 1988.

      Amy S. Cunningham, Pittsburgh, for appellant.
    Anne F. Duggan, Pittsburgh, for Gregg, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from a lower court Order which granted Preliminary Objections in the nature of a demurrer, and dismissed a Complaint to Join an Additional Defendant. The case began with a Complaint filed by Plaintiff-Appellee James Remas against Defendant-Appellant Duquesne Light Company, a Corporation (hereinafter referred to as “Duquesne”). That Complaint asserted that the Plaintiff had suffered a fall and injuries in the course of his duties, while walking as a security person on Duquesne’s property. The Plaintiff attributed his fall and consequent injuries to the alleged failure by Duquesne to properly maintain and to clear ice and snow from the area where he fell, and to other related acts of purported negligence by the Defendant relating to the conditions which prevailed in the area of his fall. At the time of his accident, the Plaintiff was an employee of the Appellee Gregg Security Services, Inc. (hereinafter referred to as “Gregg”). Duquesne sought to bring Gregg into the action as an Additional Defendant. Gregg filed the Preliminary Objections which led to the lower court Order dismissing Duquesne’s Complaint to Join Additional Defendant. This appeal followed.

In the recent case of Leach v. Hough, 352 Pa.Super. 213, 507 A.2d 848 (1986), our Court discussed the guidelines applicable in the review of an appeal such as this. We pointed out that an appellate court reviewing the grant of a demurrer must accept as true all well-pleaded material facts in the complaint, as well as all inferences which may be reasonably deduced therefrom. However, we noted that unjustified inferences and conclusions of law may not be drawn from the face of the complaint. The court ruling on the demurrer may not supply facts missing from the complaint, but may only consider those matters as arise out of the complaint. Finally, we stated the well-established rule that if there is any doubt about whether the preliminary objections should be granted, the doubt should be resolved in favor of overruling the demurrer.

The Complaint to Join Additional Defendant in this case recited the following: It first asserted that Duquesne and Gregg had entered into an agreement whereby the latter would provide security guard services to the former at various facilities. That agreement required Gregg to furnish and maintain certain types of insurance, and contained a hold-harmless and indemnity provision. Further, it contained detailed safety requirements applicable to Gregg and specifications as to the type of services to be provided. It was claimed that Gregg violated its agreement with Duquesne by failing to provide proper equipment to its personnel assigned to Duquesne, and failed to assign personnel who met the specifications set forth in the agreement. Finally, while denying liability to Mr. Remas, Duquesne maintained that if it were held liable to him, Gregg would be liable to Duquesne for indemnification, pursuant to the agreement between them.

The agreement between Duquesne and Gregg was attached as an exhibit to the Complaint to Join Additional Defendant. The indemnity provision of that agreement, which is significant in our resolution of the instant appeal, provided, in relevant part:

INDEMNIFICATION — To hold harmless and indemnify the Company from and against any liability, loss, damages, cost and expense which the Company may suffer from any claim, demand, action, suit or cause of action which may be made or had against the Company by reason of any act committed by the Contractor, its agents, servants or employees other than an act performed by the Contractor, its agents, servants or employees at the specific instruction of the Company.

The lower court examined Duquesne’s Complaint to Join Additional Defendant in light of the Pennsylvania Workmen’s Compensation Act, which provides immunity for a statutory employer from suit in situations such as the one presented in the instant case, except where the employer has expressly agreed to indemnify a third party subjected to claims by an injured employee. The specific statutory restriction is set forth in the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(b), which states:

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Numerous cases have recognized this rule. See, for example, Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983).

The lower court determined that the indemnity clause in the Duquesne-Gregg agreement did not constitute an agreement by Gregg to indemnify and hold Duquesne harmless in the event Duquesne’s negligence caused injury to a Gregg employee, within the contemplation of the Workmen’s Compensation Act. We agree. The Act requires an express provision for the statutory employer to assume an indemnity obligation in such circumstances. Such contractual undertakings were discussed in Gerard v. Penn Valley Constructors, Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985). There we pointed out that an asserted indemnification contract will be carefully scrutinized and is subject to strict construction. On that point, see also Employers Liability Assurance Corporation v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966). Such scrutiny and strict construction in the instant case leads to the strong conclusion that Gregg did not expressly agree, in the indemnity clause quoted above, to waive its statutory protection, and to assume unlimited liability for damages arising from harm suffered by its own employees as a result of the neglect of Duquesne. The indemnity clause in issue in this case simply does not contain such an undertaking by Gregg.

With regard to the other grounds asserted by Duquesne in its Complaint, concerning purported violations by Gregg in failing to properly equip its personnel and assigning employees who failed to meet contractual specifications, we find no grounds for allowing Duquesne to join Gregg in the instant suit as an Additional Defendant. The provisions of the Workmen’s Compensation Act are clear in stating that the only basis for holding a statutory employer liable in these circumstances is if it has expressly agreed to bear liability for such damages, contribution or indemnification. As we have found, no such express undertaking is present in this case. The contract language concerning Gregg’s equipment and personnel obligations certainly could not be construed as an indemnity undertaking or an assumption of liability by Gregg for harm to employees caused by conduct of Duquesne. Accordingly, we find no error in the lower court’s Order granting Gregg’s Preliminary Objections and dismissing Duquesne’s Complaint to Join Additional Defendant.

The Order of the lower court is hereby affirmed.

      . In view of this disposition, there is no need that we address Duquesne’s contention that the lower court should have permitted the pleading of details concerning Gregg’s insurance coverage requirements in the Complaint to Join Additional Defendant.