author: MONTEMURO, Judge:

text:
    482 A.2d 625
    NEW HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, formerly Wyomissing New Home Federal Savings and Loan Association v. Joseph A. TRUNK, and Barry J. Tierney and Rosaura F. Tierney, Appellants.
    Superior Court of Pennsylvania.
    Argued March 7, 1984.
    Filed Sept. 28, 1984.

      John L. Sampson, Lancaster, for appellants.
    Paul K. Allison, Lancaster, for appellees.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

This is an appeal from the Judgment of the Court of Common Pleas of Lancaster County granting summary judgment in favor of the plaintiff below, New Home Federal Savings and Loan Association (hereafter New Home), and against defendants below, Joseph A. Trunk, Barry J. Tierney and Rosaura F. Tierney. The action was for the foreclosure of a mortgage on the ground that Trunk breached the mortgage agreement. The pertinent facts are as follows:

On February 23, 1979, Trunk purchased 276 W. Walnut Street, Marietta, Pennsylvania, as his residence for the sum of twenty-eight thousand ($28,000.00) dollars. Trunk paid twenty-eight hundred ($2800.00) dollars toward the purchase price and borrowed the balance, twenty-five thousand, two hundred ($25,200.00) dollars from New Home. As security for the loan, Trunk executed a mortgage in favor of New Home. The loan was payable over a term of twenty-five (25) years at an interest rate of ten percent (10%) per annum. Trunk lived in his new home until October, 1979, when he moved to Philadelphia to accept a new job.

Trunk attempted to sell his home outright, but he could not find a buyer. He rented the home from October, 1979 to February, 1981. On February 21, 1981, Trunk entered into an Installment Agreement for the Sale of Real Estate with the Tierneys. Under this agreement, Trunk agreed to sell the property to the Tierneys for the sum of thirty-three thousand, nine hundred ($33,900.00) dollars, payable in the following manner: (1) the Tierneys would pay Trunk one thousand ($1000.00) dollars upon the signing of the agreement; (2) two thousand ($2000.00) dollars at settlement, on or before April 1, 1981; (3) the balance of thirty thousand, nine hundred ($30,900.00) dollars, with interest at twelve percent (12%) per annum, payable in monthly installments of three hundred seventeen dollars and eighty-four cents ($317.84) beginning May 1, 1981 and continuing for three years to May 1, 1984; at which time the entire unpaid principal balance would then be due. Upon payment of the principal balance on May 1, 1984, Trunk was to deliver a deed to the Tierneys.

Thereafter, Trunk continued to make timely monthly mortgage payments to New Home, which New Home continued to accept. The Tierneys maintained the property as required and paid all taxes and fire insurance premiums.

On April 29, 1981, after New Home became aware of the installment sale agreement, New Home notified Trunk by letter that he was in default of the mortgage and it intended to foreclose. New Home’s letter stated “Your mortgage is in default because you sold the mortgaged property without obtaining our prior written consent.”

The present action was commenced on September 10, 1981. After the close of pleadings, various depositions were taken. New Home then filed a motion for summary judgment, which was countered by a summary judgment motion filed by Trunk and the Tierneys. The issues raised by the parties were thoroughly briefed and argued. On June 23, 1982, the court granted summary judgment in favor of New Home, and against Trunk and the Tierneys. This appeal followed.

Summary judgments are governed by Pa.R.C.P. 1035(b) which provides that a summary judgment will be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Such a disposition is appropriate only in those cases which are clear and free from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). “[T]he court must accept as true all well pleaded facts in the non-moving party’s pleading, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom.” Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 596, 422 A.2d 625, 630 (1980). The burden of showing there is no genuine issue of material fact and that there is entitlement to judgment as a matter of law is on the moving party. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977).

The appellants raise several grounds upon which they assert that the trial court’s judgment was in error. After careful review of the record of the lower court proceedings, we find these allegations to be without merit.

Initially, we will address the appellants’ assertion that the due-on-sale clause in the mortgage agreement is invalid as an unreasonable restraint on alienation. It is specifically asserted that the installment sale agreement, which was found to violate the due-on-sale clause, did not impair New Home’s security, and that New Home’s only motivation for enforcing the clause was to reinvest the loaned funds at a higher rate of interest. The appellants’ argument parallels an argument pursued to a successful conclusion in the California Courts. See Wellenkamp v. Bank of America, 21 Cal.3d 943, 148 Cal.Rptr. 379, 582 P.2d 970 (1978); Tucker v. Lassen Savings and Loan Association, 12 Cal.3d 629, 116 Cal.Rptr. 633, 526 P.2d 1169 (1974).

In Tucker, a case entailing essentially the same facts as those.herein, the court concluded that an executory conveyance via an installment sales agreement transferred an equitable interest in the property; that the transfer of the equitable interest violated the due-on-sale clause in the mortgage; but that the due-on-sale clause was an unreasonable restraint on alienation. The court expressly rejected the lender’s argument that its interest in maintaining its portfolio at current interest rates justified any restraint on alienation resulting from enforcement of the due-on-sale clause upon execution of an installment land contract.

The Tucker doctrine reached its zenith when the California Supreme Court in Wellenkamp v. Bank of America, supra, extended it from installment land contracts to outright sales. The Wellenkamp court, applying the reasoning utilized in Tucker, concluded that the due-on-sale clause, which was “legitimately designed ... to protect against impairment to the lender’s security that is shown to result from a transfer of title ...” Wellenkamp, supra, at 952, 148 Cal.Rptr. at 385, 582 P.2d at 976, could not be used as a device to maintain its investment portfolio at current interest rates.

The appellants invite us to apply the principles of Tucker and Wellenkamp to the facts of the present case. They point out that in this Commonwealth a restraint on the alienation of property will be enforced only if it is reasonable and limited. Lauderbaugh v. Williams, 409 Pa. 351, 186 A.2d 39 (1962). They contend that a due-on-sale clause, enforced only to maintain investment portfolios at high interest rates, and not to prevent the impairment of security, is not a reasonable and limited restraint on alienation.

New Home counters with several arguments. It asserts that the due-on-sale clause is not an unreasonable restraint on alienation as defined under both Pennsylvania law, Lauderbaugh v. Williams, supra, and the Restatement of Property § 406 (1944). See also, Ministers & Missionaries Benefit Board v. Goldsworthy, 253 Pa.Super. 321, 385 A.2d 358 (1978). Accord, Lipps v. First American Service Corp., 223 Va. 131, 286 S.E.2d 215 (1982). It further seeks to differentiate Tucker and Wellenkamp on the basis that those decisions were based in part on a California statute forbidding unreasonable restraints on alienation. Finally, New Home asserts that the doctrine of federal preemption precludes this court from holding that the due-on-sale clause is an unreasonable restraint on alienation. This final assertion is based on the decision of the United States Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Certainly, prior to de la Cuesta, this issue was one of substantial disagreement. See, id. at 151 n. 9, 102 S.Ct. at 3021 n. 9.

The decision in de la Cuesta, handed down five days after the trial court’s decision in the present action, specifically held that a due-on-sale clause, identical to the one in issue herein, was enforceable by federal savings and loan associations and that any State law to the contrary was preempted by the regulation of the Federal Home Loan Bank Board (FHLBB). The FHLBB, an independent federal regulatory agency vested with the authority to administer the Home Owners Loan Act of 1933, 48 Stat. 128, as amended 12 U.S.C. § 1461 et seq., is empowered to prescribe rules and regulations for the “organization, incorporation, examination, operation and regulation of associations to be known as ‘Federal Savings and Loan Associations.’ ” 12 U.S.C. § 1464(a).

Pursuant to its statutory authority, the FHLBB promulgated a regulation in 1976 governing due-on-sale clause. 12 C.F.R. § 545.11(f) (1980) recodified 12 C.F.R. § 545.8-3(f) (1982), which states in relevant part:

[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as [otherwise] provided in ... this section ..., exercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.

This regulation was held to preempt conflicting state restrictions on the due-on-sale practices of federal savings and loan associations based, in part, on the FHLBB’s declaration of intent in the “preamble accompanying final publication of the due-on-sale regulation ... that, the due-on-sale practices of federal savings and loans be governed 'exclusively by Federal law.’ ... '[FJederal associations shall not be bound by or subject to any conflicting State law which imposes ... different due-on-sale requirements” Id. at 147, 102 S.Ct. at 3019.

All parties agree that New Home is a federal savings and loan association within the purview of the FHLBB, and subject to its rules and regulations. Those regulations require that the mortgage instrument evidencing the security interest be enforced according to its terms. The Supreme Court’s decision in de la Cuesta makes the FHLBB’s regulations paramount over any inconsistent state laws which might derogate from the terms of the mortgage. This court is thereby precluded from holding that a due-on-sale clause in a mortgage instrument evidencing a mortgage given to a federal savings and loan is invalid as an unreasonable restraint on alienation.

We do not decide, inasmuch as the question is not before us, whether a due-on-sale clause would be found invalid in another case where the federal regulation was not applicable; that is where a federal savings and loan was not involved. That decision must be left until another day.

The appellant also asserts that the due-on-sale clause is unenforcible as a contract of adhesion. This assertion is one which pits the terms of the mortgage instrument against the laws of this Commonwealth. Thus, it is evident that once again the doctrine of federal preemption prevents us from derogating from the terms of the mortgage. The appellants further assert that the determination of whether the due-on-sale clause is a contract of adhesion is a question of fact which will preclude the entry of summary judgment. While the question of whether a contract of adhesion is present here may be a question of fact, Commonwealth v. Monumental Properties, Inc., 10 Pa.Commw. 596, 314 A.2d 333 (1973), aff'd, in part and rev’d in part, 459 Pa. 450, 329 A.2d 812 (1974), remand., 26 Pa.Commw. 399, 365 A.2d 442 (1976). It is not a question of material fact for the reason that even if a contract of adhesion existed, the doctrine of federal preemption would still prevent this court from finding the clause unenforceable. Consequently, the appellants cannot prevail on this issue.

The appellants argue that the installment sale agreement is “subordinate” to the due-on-sale clause of the mortgage held by New Home; i.e. it falls within exception (a) to the due-on-sale clause (See n. 1 supra, at 396) arid consequently does not trigger the operation of the due-on-sale clause.

The flaw in the appellants’ argument stems from the manner in which they have framed it. They assert that “[t]he executory installment sales agreement created a lien or encumbrance upon the subject property which, being junior to the lien of the mortgage on the same property, is expressly excluded from the due-on-sale clause in this case.” Appellants’ brief at 5. Their argument that an installment sales agreement merely creates a lien or encumbrance upon the property is based on this court’s decision in Anderson Contracting Co. v. Daugherty, 274 Pa.Super. 13, 417 A.2d 1227 (1979), appeal dismissed, 492 Pa. 630, 425 A.2d 329 (1980). They assert that Anderson stands for the proposition that an installment sale agreement is the same as a residential mortgage which is secured by a lien on real property as defined in Act No. 6 of Jan. 30, 1974, P.L. 13, § 101 et seq., 41 P.S. § 101, et seq.

In Anderson, the vendor under an installment contract for the sale of real estate brought an action in ejectment against the vendee under the contract, alleging failure to make required payments. A judgment was confessed and execution proceedings were initiated. The matter was before this court on appeal from an order denying the vendee’s petition to cure default, to stay execution, and to open or strike the judgment.

The vendee asserted a right to cure his default in accordance with the provision of Act No. 6; especially Section 404 of that Act, 41 P.S. § 404, which provides that a party defaulting on a residential mortgage obligation has until one hour before the commencement of bidding at a judicial sale to cure that default. The court held:

It is our opinion that the rights and remedies provided by Act No. 6, in particular, the cure provisions in Section 404 of the Act, 41 P.S. § 404, should not be denied to a class of Pennsylvania home purchasers solely because this obligation to pay the balance of the purchase price is evidenced and secured by a land installment contract as opposed to some other transaction also designed to create a security interest in real estate.

Id., 274 Pa.Superior Ct. at 22-23, 417 A.2d at 1232.

The scope of the decision in Anderson was to define the relationship between a vendor and vendee who contract for the sale of real property via an installment sales agreement; for example, Trunk and the Tierneys. The decision of the court was to equate the relationship of vendor-vendee with that of mortgagee-mortgagor, to equate the installment sale contract with a residential mortgage; and to equate the interest retained by the vendor (legal title) with a “lien or encumbrance.” By employing this legal fiction, which the court expressly limited to “the purpose of Act No. 6,” id., 274 Pa.Superior Ct. at 19, 22, 417 A.2d at 1230, 1232, the court was able to extend the remedies available to a defaulting residential mortgagor to defaulting vendees under installment sales agreements.

However, Anderson does not give the appellants relief in the present instance for two reasons. First, Anderson does not define the interest transferred to the vendee, rather it defines the interest retained by the vendor. Consequently, it is inapposite herein where the question to be determined is whether the interest transferred to the Tierneys was a “lien or encumbrance.” Second, the Anderson court expressly limited the scope of its decision to “the purposes of Act No. 6.” Herein, we are interpreting the provisions of a mortgage instrumént between New Home and Trunk, not the installment sales agreement between Trunk and the Tierneys. The situations are entirely different. For both of the above-stated reasons we concluded that Anderson is inapplicable.

The question before us is a narrow one: Is the interest transferred to the Tierneys a “lien or encumbrance?” To resolve that question, it is necessary to examine the Tierneys interest vis-a-vis the entire bundle of rights associated with the ownership of property.

For all intents and purposes, the respective interests of New Home, Trunk and the Tierneys collectively equal the entire bundle of rights in the property. New Home has a mortgage on the property granted to it by Trunk. “A mortgage is in essence a defeasible deed, requiring the grantee [mortgagee] to reconvey the property held as security to the grantor [mortgagor] upon satisfaction of the underlying debt or the fulfillment of established conditions.” Hahnemann Medical College and Hospital of Philadelphia v. Commonwealth, 52 Pa.Commw. 558, 564, 416 A.2d 604, 607 (1980); see also, Schwoyer v. Smith, 388 Pa. 637, 131 A.2d 385 (1957); Girard Trust Co. v. City of Philadelphia, 369 Pa. 499, 87 A.2d 277 (1952).

Trunk, as mortgagor “remains the owner of everything not conveyed away by the mortgage,” Peoples-Pittsburgh Trust Co. v. Henshaw, 141 Pa.Super. 585, 15 A.2d 711, 714 (1940), “He retains the possession, if not in default, and can grant it [away] ...” Id. The mortgagor has legal title which is not divested by the grant of a mortgage. Lunnen v. Hunter, 348 Pa. 402, 35 A.2d 292 (1944).

In the present case, Trunk transferred an interest to the Tierneys. That interest included the right to immediate possession, use and occupancy of the premise, and the obligation to insure and maintain the premises. The Tierneys also have, subject to the contingency that they make all monthly payments and tender the final balance on May 1, 1984, the right to have legal title to the property conveyed to them. Cf. Realty Investments, Inc. v. Harris, 166 Pa.Super. 211, 70 A.2d 427 (1950).

The interest transferred to the Tierneys, therefore, encompasses several rights and obligations, which we conclude are not a “lien or encumbrance,” and consequently, the transfer of that interest triggered the due-on-sale clause.

The lower court, in deciding that the interest transferred was not a “lien or encumbrance,” relied on Williams v. First Federal Savings and Loan Association, 651 F.2d 910 (4th Cir.1981). In Williams, a mortgagor, whose mortgage was held by a federal savings and loan association and whose mortgage instrument contained a due-on-sale clause identical to that at issue herein, transferred her residential property by means of an elaborate scheme of transactions which essentially put her property into a trust with herself as trustee. The use of the land was sold by means of a “Contract to Purchase by Assignment the Beneficial Interest in a Land Holding Trust.” The mortgagor/trustee retained legal title, the purchasers of the beneficial interest took possession of the property. The Williams court held that the beneficial interest transferred by the mortgagor/trustee to the purchasers was not a “lien or encumbrance” in that it was not for the purposes of securing an obligation; rather the beneficial interest was the right to “enjoy the structure as their home.” The court held that the complicated maneuverings did not prevent operation of the due-on-sale clause.

Although the present situation is mechanically different, the result is the same. Trunk has transferred a beneficial property interest to the Tierneys. This interest, as viewed in the context of the full bundle of rights associated with property ownership, is something more than a “lien or encumbrance.” The due-on-sale clause prohibits the transfer of property interests by the borrower, except for certain excluded transactions, without the lender’s written consent. We therefore hold as a matter of law, that the property rights transferred by an installment sales agreement are not a “lien or encumbrance” for the purposes of paragraph 17, and consequently will trigger the operation of the due-on-sale clause.

The appellants’ next contention is that the April 29, 1981, notice of intention to foreclose sent by New Home to Trunk was defective in that it was not in compliance with paragraph 17 and 18 of the mortgage instrument. We will consider this argument in conjunction with appellants’ fourth argument that the notice was defective in that it failed to comply with Act. No. 6 of July 30, 1974, P.L. 13 § 101 et seq., 41 P.S. § 101 et seq. and specifically Section 403 of that Act, 41 P.S. § 403, setting forth the information required in a notice of intention to foreclose.

The April 29, 1981 notice sent by New Home was essentially as follows:

This is a notice of default and of our intent to foreclose on your mortgage. Please read all of this notice.
We hold a PROMISSORY NOTE which is signed by you, dated February 23, 1979, in the original principal amount of $25,200.00. We also hold a MORTGAGE ON YOUR HOUSE AT THE ABOVE ADDRESS, securing the Note. Your mortgage is in default because you have sold the mortgaged property without obtaining our prior written consent as required by the mortgage. We hereby declare that all sums secured by the mortgage are immediately due and payable. The total amount you now owe is $24,647.79.
Payment must be made by CASH, CASHIER’S CHECK, OR CERTIFIED CHECK.
Payment must be made at the office OF New Home Federal Savings and Loan Association at 14 North Sixth Street, Reading, Pennsylvania, or if payment is made within thirty-five (35) days after the date of this letter, by mail addressed to New Home Federal Savings and Loan Association, P.O. Box 37, Reading, Pennsylvania.
If we do not receive the required payment within thirty-five (35) days after the date of this notice, we may without any further notice to you, do any of the following:
1. We may begin legal proceedings to foreclose the mortgage, in which proceedings the Sheriff may sell your house.
2. We may take possession of your property and proceed to have you ejected from the property.
3. We may sue you personally for the said unpaid principal balance and all other sums due under the mortgage. WARNING: If you pay the amounts due more than thirty-five (35) days after the date of this letter and our lawyers have started legal proceedings, you may have to pay additional foreclosure expenses, including court costs and attorney’s fees.

The thrust of appellants’ argument is that the notice was defective because it was sent after, rather than prior to acceleration as required by paragraph 18 of the mortgage instrument. Derivatively, the appellants’ argue that the notice also violated 41 P.S. § 403(a) and (c)(2) and (3), in that the notice was sent after acceleration, erroneously stated the nature of the default and did not advise Trunk of his right to cure the alleged default.

We note initially that we do not believe that the language of paragraph 18 is dispositive of the notice requirement herein. Paragraph 17 of the mortgage instrument states that upon breach of the due-on-sale clause,

“Lender may, at lender’s option, declare all sums secured by this Mortgage to be immediately due and payable____ If Lender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by paragraph 18 hereof.” (Emphasis added).

The remedies permitted by paragraph 18 are judicial foreclosure and the recovery of costs. These remedies must be distinguished from other provisions of paragraph 18 which are directed toward the notice requirements where the Borrower has breached his obligation to pay monies due and other obligations.

Appellants would have us make all of the provisions of paragraph 18 applicable where the Borrower has breached the due-on-sale clause: We decline to do so. In Village Beer and Beverage Company, Inc. v. Cox, 327 Pa. Super. 99, 475 A.2d 117 (1984), we stated:

In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties bearing in mind the objects manifestly to be accomplished. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). Where the words of the contract are clear and unambiguous, the intent of the parties must be determined from the agreement itself. Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). One part of a contract cannot be so interpreted as to annul another part, but, rather, writings which comprise an agreement must be interpreted as a whole. Shehadi v. Northeastern National Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304 (1977). Ambiguous language in a contract is to be interpreted most strongly against the party who selected the language. West Penn Realty Co. v. Acme Markets, Inc., 224 Pa.Super. 202, 303 A.2d 836 (1973).

Id., 327 Pa.Superior Ct. at 107, 475 A.2d at 121. Herein, there is no ambiguity in the language of either paragraph 17 or 18. Paragraph 17 states that when the Borrower breaches the due-on-sale clause, the Lender may declare all amounts immediately due and payable; and further states that upon the Borrower’s failure to pay, the Lender may avail itself of the. remedies in paragraph 18, without any further notice. Paragraph 18, among its provisions, sets forth various remedies at the Lender’s disposal. Paragraph 17 incorporates only these remedies, and not as appellants suggest, the various provisions relating to acceleration and notice.

Our conclusion is buttressed by relevant case law. Paragraph 18 calls for notice to be given in accordance with the applicable law; in this case 41 P.S. § 403. The appellants argue that the notice violated not only the terms of the mortgage instrument, but also Section 403. Again, we must disagree.

In Ministers and Missionaries Benefit Board of American Baptist Church v. Goldsworthy, supra, this court held that a notice of intent to foreclose was not violative of Section 403, despite the fact that it lacked certain information required by Section 403(c)(3), (4), (5), and (6). In Goldsworthy, the mortgagor had sold the property outright and foreclosure was based on, inter alia, a due-on-sale clause. The court stated:

This ability to prevent foreclosure and avoid acceleration, however, is distinctly delimited; it necessarily presupposes the existence of a default curable in the prescribed manner. Therefore, where acceleration is predicated upon default which cannot be cured, the reason for, and necessity of this information disappears.
Although Section 404 does not specify the type of default which may be cured, we agree with appellee that this section relates almost exclusively to monetary defaults. Thus to cure a default, subsection [404](b) directs that the mortgagor “pay or tender” all delinquent sums, together with reasonable fees and costs, and any late penalty, and that the mortgagor “perform any other obligation which he would have been bound to perform. ...” Clearly, appellant could cure a default resulting from nonpayment of principal and interest. Equally clear, however, is the fact that appellant could not cure a default based on conveyance of the premises in violation of the mortgage agreement. And, if mortgagors have already transferred the premises, any information as to their right to transfer is unnecessary. Based on the foregoing, we conclude that appellee’s letter of July 28, 1975 provided all of the information required to comply with Section 403.

The appellants attempt to distinguish Goldsworthy by pointing out that it involved a direct sale whereas this case involved an installment sale. The appellants assert that where an outright sale has occurred, the default cannot be cured; but where an installment sale has occurred the default could be cured, if, for example, the Tierneys agreed to breach the installment sales agreement. We reject this distinction as being too speculative. Goldsworthy makes it clear that Section 403 is applicable where the mortgagor has defaulted on his obligation to pay overdue sums to the mortgagee. That situation is not present herein. The premise of Goldsworthy is more applicable herein since the default cannot be cured by Trunk acting alone, but rather requires some action by the Tierneys. This court could hardly sanction a requirement that a Lender advise a Borrower to breach a contract with a third party in order to cure a mortgage default.

Having decided that the appellants’ arguments are without merit, the judgment of the lower court is affirmed.

Judgment affirmed.

      . 17. Transfer of the Property: Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17, and if Borrower's successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note.
      If Lender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by paragraph 18 hereof.

      . The appellants assert that the issue of federal preemption is not properly before this court inasmuch as it was not raised by the parties below. However, we disagree with appellants’ conclusion, despite the trial court’s declaration that, ”[n]one of the parties addressed the issue of Federal preemption in their briefs or at oral argument.” Lower Court Opinion, at 25, n. 11. In fact, the issue was presented to the lower court, albeit indirectly. Cases cited by both the appellants and New Home discuss and-or rely on the preemption doctrine. New Home also attached cases to its brief in support of its motion for summary judgment which discuss federal preemption. Finally, we note that despite its disavowal, the trial court decided in favor of New Home on this issue principally because it found that federal law prevailed over inconsistent State law. In doing so, the lower court relied on Federal cases which had applied the preemption doctrine.

      . Section 403 states in pertinent part:
      (a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section.
      (c) The written notice shall clearly and conspicuously state:
      (1) The particular obligation or real estate security interests;
      (2) The nature of the default claimed:
      (3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money, if any, must be tendered to cure the default;
      (4) The time within which the debtor must cure the default;
      (5) The method or methods by which the debtor’s ownership or possession of the real estate may be terminated; and
      (6) The right of the debtor, if any, to transfer the real estate to another person subject to the security interest or to refinance the obligation and of the transferee’s right, if any, to cure the default.

      . 18. Acceleration; Remedies. Upon Borrower’s breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender prior to acceleration shall mail notice to Borrower as provided by applicable law specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date of notice is mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the breach is not cured on or before the date specified in the notice, Lender at Lender’s option may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand and may foreclose this Mortgage by judicial proceeding. Lender shall be entitled to collect in such proceeding all expenses of foreclosure, including, but not limited to, reasonable attorney’s fees, and costs of documentary evidence, abstracts and title reports. (Emphasis added).

      . Paragraph 14 sets forth the proper manner by which notice is to be sent.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    482 A.2d 634
    William QUINN, Appellant, v. BY-PASS GARAGE, INC. d/b/a By-Pass Trailer Sales and Prudential Property & Casualty Insurance Company v. COACHMAN INDUSTRIES, INC.
    Superior Court of Pennsylvania.
    Argued June 6, 1984.
    Filed Sept. 28, 1984.

      Dale G. Larrimore, Philadelphia, for appellant. •
    David J. Otis, Media, for appellee.
    Before SPAETH, President Judge, and TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that he is entitled to basic loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act (the No-Fault Act), 40 Pa.S.A. § 1009.101 et seq., for injuries sustained when he fell while alighting from a pull-down bunk bed inside his motor home. We disagree and, accordingly, affirm the lower court’s order granting summary judgment in favor of appellee.

The facts on the record are as follows: On or about March 10, 1981, appellant leased a Coachman Recreational Vehicle from By-Pass Garage, Inc., d/b/a By-Pass Trailer Sales. At that time, appellant was a named insured under appellee Prudential Property & Casualty Insurance Company’s policy, which had been issued in accordance with the No-Fault Act. On the evening of March 17, 1981, appellant and his family were returning to Pennsylvania from a vacation in Florida when he parked their recreational vehicle for the night in a campground near Dillon, North Carolina. Appellant paid an overnight rental fee and was assigned a parking space. He hooked up their camper to the campground waste line for sewage disposal. For sleeping quarters, appellant pulled down the bunk bed above the driving area of the vehicle. His wife and children slept in other bunk beds in the rear of the vehicle. The camper remained stationary throughout the night. The next morning, appellant allegedly fell while climbing out of the upper bunk bed, thereby injuring himself. Appellant filed a complaint on November 24, 1982, alleging, inter alia, that benefits were due him from appellee pursuant to his Prudential policy. On November 29, 1983, appellee filed a motion for summary judgment, which the lower court granted on December 12, 1983. This appeal followed.

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). It is to be granted only in the clearest of cases. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979); Pa. Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commonwealth Ct. 88, 91-94, 434 A.2d 1327, 1329-30 (1981). In the instant case, the issue presented is whether the aforementioned accident is covered by the No-Fault Act.

Under Section 103 of the No-Fault Act, a covered “Victim” is defined as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle”. 40 Pa.S.A. § 1009.103. The term “Maintenance or use of a motor vehicle” means “maintenance or use of a motor vehicle as a vehicle. . . .” Id. (emphasis added). Although the word “vehicle” is not defined in the No-Fault Act, the Act adopts by reference, see id. (definition of “Motor vehicle”), the definition found in the Pennsylvania Vehicle Code. Section 102 of the Vehicle Code defines “Vehicle” as “Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks”. 75 Pa.C.S.A. § 102 (emphasis added). Under this definition, the recreational motor home in the instant case qualifies as a motor vehicle. The crucial question, then, is whether this motor home was used “as a vehicle” within the meaning of § 102 of the No-Fault Act at the time of the accident.

We find Crusco v. Insurance Company of North America, 292 Pa.Superior Ct. 293, 437 A.2d 52 (1981), to be dispositive. In Crusco, the plaintiffs decedent was killed when an explosion occurred in the parked motor home she was occupying. Gas had leaked from the line to the refrigerator in the motor home and the explosion happened when the oven was lit during the preparation of dinner. The plaintiff brought suit to recover benefits under a policy issued pursuant to the No-Fault Act and the lower court granted summary judgment to the defendant insurance company. On appeal, this Court affirmed, holding that the decedent was not the victim of a motor vehicle accident under the No-Fault Act. We reasoned that “[t]he use of the refrigerator and stove in the preparation of a meal is not a use as a device of transportation.” Id., 292 Pa.Superior Ct. at 298, 437 A.2d at 54. We stated that the No-Fault Act “mandate[s] that the accident result from the use of the vehicle as a vehicle.” Id., 292 Pa.Superior Ct. at 297, 437 A.2d at 53 (emphasis in original). See also Camacho v. Nationwide Insurance Company, 314 Pa.Superior Ct. 21, 460 A.2d 353 (1983) (no-fault benefits denied for injuries sustained when occupant of another vehicle threw explosive device into insured’s vehicle; incident resulted from intentional tort only incidentally involving a motor vehicle); Howe v. Harleysville Insurance Company, 313 Pa.Superior Ct. 65, 459 A.2d 412 (1983) (no-fault coverage denied when hunter, who mistakenly believed motor vehicle was deer, shot at vehicle and injured vehicle passenger; connection between injury and insured vehicle was nothing more than mere chance or happenstance).

In the instant case, it is clear from the facts that appellant was using the motor home as an overnight lodging at the time of the accident rather than as a device for transportation. Like the refrigerator and stove in Crusco, supra, the bunk bed had been built into the camper to serve a function other than transportation, namely, as sleeping accommodations, and was actually being used for that purpose at the time of the incident. Therefore, the motor home was not being used as a vehicle and appellant cannot be considered a motor vehicle accident victim within the intended meaning of the No-Fault Act. “[The No-Fault Act] was not intended to be a panacea for all injuries that could be traced to a motor vehicle no matter how far removed from the actual operation of such vehicle.” Monaghan v. Pennsylvania Manufacturers Association Insurance Company, 301 Pa.Superior Ct. 419, 424, 447 A.2d 1037, 1040 (1982) (footnote omitted).

Accordingly, we affirm the December 12, 1983, order granting summary judgment in favor of appellee.

Affirmed.

      . Crawford v. Allstate Insurance Company, 305 Pa.Superior Ct. 167, 451 A.2d 474 (1982), cited by appellant, is distinguishable. In Crawford, the plaintiff was walking along railroad tracks when he was struck from behind by a pickup truck which had been specially converted to run on rails. We held that such a truck was a vehicle within the definition of the Vehicle Code and the No-Fault Act. The issue in Crawford, therefore, involved the nature and the location of the vehicle at the time of the accident. In the instant case, however, the issue involves the use to which the vehicle was put and the connection between that use and the resulting injury. In this way, the instant case is legally indistinguishable from Crusco v. Insurance Company of North America, 292 Pa.Superior Ct. 293, 437 A.2d 52 (1981).

      . Alternatively, appellant alleges that he is entitled to recover benefits under the terms of his Prudential insurance policy. We disagree. Contrary to appellant’s assertion, we find that exclusion (k), titled “Parked Camper Vehicles, Etc.”, was applicable at the time of his injury. This exclusion, for "any person while maintaining or using a motor vehicle while located for use as a residence or premises[,]“ was clearly intended to apply to the situation in the instant case.


author: CERCONE, President Judge:

text:
    482 A.2d 637
    In the Interest of JAMES JOHN M., a Minor. WALTER GEORGE M., v. ANNA MARIE M., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1982.
    Filed Sept. 28, 1984.

      W. Patrick James, Johnstown, for appellant.
    Stephen L. Dugas, Johnstown, for appellee.
    Before CERCONE, President Judge and WIEAND and BECK, JJ.
   CERCONE, President Judge:

This appeal is taken from the order of the Court of Common Pleas of Cambria County granting custody of James John M., a ten year old boy, to his father; Walter George M., the instant appellee. Appellant, Anna Marie M., the maternal grandmother of James and the person with whom he has resided since the death of his natural mother in December, 1974, argues that the hearing judge below erred in framing the custody issue pending before the court in terms of the absence of convincing reasons why appelleefather should be deprived of his prima facie right to custody of his child. In addition, appellant urges that the record contains factors overlooked by the hearing judge which afford the court with convincing reasons why custody of the child should remain with appellant.

James is the sole child resulting from the marriage of appellee and the late Barbara M., appellant’s daughter. James was born on September 24, 1971 and resided with his parents until the death of his mother on December 15, 1974; circumstances indicated that her death may have been caused by strangulation. Immediately subsequent to his mother’s death, he lived with his parents’ neighbors, but since that time James has resided continuously with appellant.

On February 3, 1975, appellant filed a petition with the Court of Common Pleas of Cambria County for award and confirmation of custody, to which appellee responded with a habeas corpus petition. The petitions were consolidated by the lower court which, after conducting a hearing, entered an order, dated March 22, 1976, continuing the custody of James in appellant subject to the visitation rights conferred upon appellee.

Subsequently, on August 31, 1976, appellee married his present wife, Deborah N., who had custody of two young children from a previous marriage. From this union was born a child, Michael.

Following his marriage to Deborah N., appellee, on December 17, 1977, filed a petition for a rehearing with the lower court. The court conducted two hearings and ruled, on June 2, 1978, that convincing reasons remained to justify the belief that James’ best interests would be served by denying appellee’s petition and by continuing custody in appellant, maternal grandmother. Appellee appealed from that decision to the Superior Court. We remanded the case with instructions that the court below render a more detailed opinion. Pursuant to our directive, the court conducted yet another hearing on August 8, 1979, ruling upon the conclusion of that proceeding that custody of James should continue to reside in his grandmother.

Finally, the matter was placed once again in the hands of the Court of Common Pleas of Cambria County when both appellant and appellee filed petitions for rehearing. Having conducted the requested hearing, the lower court, by order and opinion dated August 27, 1981, ruled that James’ best interests could be adequately accommodated in the households of either appellant or appellee, but that, insofar as appellant failed to advance convincing reasons why appellee should be deprived of his prima facie right to the custody of his child, James M. should reside with appellee. The instant appeal then followed.

Our scope of review in custody cases was recently examined in In Re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) where an en banc panel of our Court held that a broad scope of review is to be applied. Therein, we suggested four stages for examining custody matters namely: 1.) the procedural stage, where the appellate court determines whether the trial court has made a complete record and filed a comprehensive opinion; 2.) the fact-finding stage, where the appellate court examines the trial court’s findings of fact to determine if they are supported by the record; 3.) the conclusion of law stage, where the appellate court determines whether the trial court has committed an error of law; and 4.) the inferences and deductions stage, where the appellate court reviews those inferences and deductions drawn from the facts as found by the trial court, but is not bound by them as it is bound by the trial court’s factual findings. In Re Donna W, supra, 325 Pa.Superior Ct. at pp. 51-56, 472 A.2d at pp. 641-643. Having applied a broad scope of review instantly, and having considered the case in light of these four stages, we find no error of any kind and affirm the order entered below. Following is a detailed explication of appellant’s arguments and our resolution of them.

Appellant’s allegation that the hearing judge below improperly framed the issue for resolution in the present custody dispute is without merit. It is true, as appellant notes, that our Supreme Court’s opinion in Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), rejected a formulation of the issue in terms of the absence of any evidence that a parent has forfeited his or her prima facie right to custody of a child. Our review of the thorough opinion of the hearing judge in the instant case persuades us that appellant has misread the reasons cited by the lower court as support for its decision.

In resolving this custody dispute between a parent and a third party, the hearing judge applied the proper standard of proof as set forth by our court in In Re Custody of Hernandez, 249 Pa.Super.Ct. 274, 376 A.2d 648 (1977), and adopted by our Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). That is, the parents’ right to custody will be forfeited only if convincing reasons “appear that the child’s best interest will be served by an award to the third party.” In such instances, the evidentiary scale favors the parent. What the hearing judge must do is to hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to tip the scale down on the third party’s side. In Re Custody of Hernandez, 249 Pa.Super.Ct. at 286, 376 A.2d at 648, see also Ellerbe v. Hooks, 490 Pa. at 367, 416 A.2d at 513-14. Instantly, the hearing judge found that appellant failed to advance any convincing reasons why appellee should be deprived of his prima facie right to custody of young James. In no way can the lower court’s formulation of the test be justly viewed as emphasizing the respective rights of the opposing parties to the detriment of the childs best interests, nor tending to preclude a custody award to appellant-grandmother in the absence of evidence tending to prove appellee-father’s dereliction. See n. 2, supra. The court’s analysis focuses at all times on the best interests of the child and on third party appellant’s failure to sustain her burden of demonstrating with “convincing reasons” that those interests would be furthered by an award of custody of James to her. Because the lower court’s inquiry comports in every respect with the holdings of prior cases regarding the standard of proof to be carried by third parties who seek to divest parents of the custody of their children, we reject appellant’s argument to the contrary.

Appellant also argues that the hearing judge overlooked certain factors which provide convincing reasons why custody of James should continue to be vested in her. Specifically, appellant compares the facts of the instant case to those which confronted our Supreme Court in Albright v. Commonwealth ex rel. Fetters, supra, wherein the Court ruled that the “chaotic conditions” to which the children in that case had been exposed throughout their lives as a result of the marital difficulties suffered by their parents, together with the fact that the grandparent’s home constituted the sole stable factor in their lives, justified an award of custody of the children to the grandparents. On this point, appellant identifies the following factors: 1) the suspicious nature of her daughter’s death and the allegation that appellee was in some way responsible and 2) the fact that appellee’s second wife has been diagnosed as suffering from cancer. These factors, argues appellant, offer convincing evidence as to the chaotic conditions to which James will be subject should his father be awarded custody. Moreover, appellant states that because she has provided James with a stable home environment since his mother’s death in 1974, it would not serve the child’s best interests to remove him now from her care and custody.

Initially, we note that little persuasive force in this case attaches to the fact that James, however happily, has resided with appellant during the preceding seven and one-half years. Although there is no doubt that stability plays a key role in the development and welfare of a child, and that in determining who should be given custody of a child it is necessary to consider how long the child lived with the third party, it is equally certain that such an investigation is grossly incomplete unless account is taken of all evidence, in particular, the reasons why the child has stayed so long with the third party. In re Hernandez,, supra, 249 Pa.Super.Ct. at 297, 376 A.2d at 660. The fact that a child has not lived with a parent for a considerable time will not alone defeat a parent’s right to custody. Id. The reason for this rule is obvious: “[t]o hold otherwise would be to enable the third party to defeat the child’s parent by force — by keeping possession of the child, and by prolonging that possession by litigation.” Id. The record in the case at bar discloses that with the exception of the short period of time immediately following the death of Barbara M., during which time appellee voluntarily relinquished his custody of James, appellee has been consistent and purposeful in his attempts to regain custody of his son.

The procedural history of this case substantiates that appellant’s custody of young James since 1974 results not from appellee’s neglect of his son, but rather from the custody litigation which began almost immediately after the death of Barbara M.

As for appellant’s suspicion that appellee is somehow responsible for her daughter’s death, the lower court concluded that there was nothing in the record to support this allegation and that appellee has never been implicated in connection with this suspicion.

Equally speculative is appellant’s assertion that the cancer diagnosis of the condition of appellee’s second wife, Deborah, creates the potential for a disruptive home life. Although Deborah testified at one of the hearings that she was diagnosed as suffering from a malignant tumor and that, as a consequence, had undergone a radical hysterectomy on February 1, 1980, she also stated that, there has been no indication since the surgery that the disease is presently active or likely to reactivate. Moreover, she stated that it was no longer necessary for her to receive medication or radiation in connection with the surgery, and, that although she does take medication for a kidney infection, she is in no way incapacitated. We do not find the factors enumerated by appellant to be “chaotic conditions” in the Albright sense which would deprive appellee of custody.

We believe that there is ample support in the record for the ruling of the lower court. As the hearing judge noted in his opinion, appellee and his wife, Deborah, together with their three children, reside in a three-bedroom duplex house which is large enough to accommodate at least one additional child. At the hearing conducted by the lower court on January 30, 1978, appellee stated that he and his wife are members of the United Brethren Church and that they attend services virtually every Sunday. Appellee testified that although he and his wife are members of the Protestant faith, they would nevertheless permit young James to continue with his Catholic school training which was initiated by appellant, until the boy is mature enough to make his own decisions concerning religious affiliation and practices. Appellee further stated that he and his family have included James in weekend family outings such as fishing, camping and boating trips, and that the boy felt comfortable in the presence of the family members. Appellee testified that although he often gives gifts to his son, he does not actually render financial support for the child’s upbringing because appellant-grandmother refuses to accept any money from him.

Although appellee stated during the January 30, 1978 hearing that he was then unemployed and receiving public assistance, the testimony elicited at subsequent hearings disclosed that his financial status has steadily improved. As of May 27, 1981, the date of the last hearing, appellee was employed at the municipal garage in Johnstown, had recently been promoted to assistant chief mechanic, was earning over $12,000 annually, and was no longer receiving public assistance. The record also reveals that appellee is covered by a Blue Cross health insurance plan. Appellee testified that such coverage would extend to his son, James, as well, should he be granted custody of the child.

The testimony of appellee’s wife at the various hearings corroborated the testimony of her husband. She stated that she did no work other than that which she performed as a housewife. She testified that although she and her husband do not provide financial support for James, they nevertheless do furnish him with some clothing. She noted that her husband treats all the children well and that he treats James as an equal with the other children. This, testimony of appellee’s wife was notably forthright and convincing, particularly as to her perception of and apparent concern for the particular needs of James.

Appellant testified at the January 30, 1978 hearing that her home is a three-bedroom house and is occupied by herself, her son, Tom, Tom’s son, Tommy, a minor granddaughter, Lisa, and James, who has his own bedroom. She stated that she had James baptized as a Catholic, attends church services with him on a regular basis, and has enrolled him in a Catholic grade school. Her income consists of monthly Social Security payments which total approximately $800, rent paid to her by her son, Tom, in the amount of $200 per month, and rental income generated by investment property in the sum of $260 per month.

The testimony elicited from several expert witnesses during the various hearings affords us no basis to reverse the decision of the lower court. Dr. Lawrence Timens, a psychiatrist employed by the Somerset State Hospital and the City-County Clinic in Johnstown, examined appellant and James on two occasions and appellee and his wife a single time. Although prior to his examination of appellee and his wife he recommended that the child be permitted to continue residing with appellant, he concluded subsequent to his visit with the appellee and his wife that they were capable of proper parenting. Robert Novotny, in addition to finding that the appellee had the financial wherewithall to support a fourth child, also reported appellee’s home as clean, well-kept and suitable for James. Dr. James N. Shinder, Clinical Director and psychologist for the Cambria County City-County Clinic in Johnstown, testified that based upon his two interviews with James M. and his review of the case background, he believed that the child lacks a true maternal figure and the spontaneity of a happy child.

Although for her part, appellant has established that her income and home are more than adequate to provide for James’ needs, and that James himself has thrived under her care and custody, we nevertheless believe that she has fallen short of satisfying her admittedly heavy burden of advancing convincing reasons why James’ best interests require that he remain in her custody. We agree with the lower court that on the basis of the facts in the instant case, there was no convincing evidence that James’ physical, intellectual, moral and spiritual needs would not be fully served by a grant of custody to either appellant or appellee. As a result, we now rule, as did our Supreme Court in Ellerbe v. Hooks, supra, that:

where circumstances do not clearly indicate the appropriateness of awarding custody to a non-parent, we believe the less intrusive and hence the proper course is to award custody to the parent or parents.
... [o]ur determination today is only an appropriate recognition that the blood relationship of parenthood has traditionally served and continues to serve as our society’s fundamental criterion for allocating control over and responsibility for our children, and that without some showing of harm, the courts should not interfere with that arrangement.

490 Pa. at 369, 416 A.2d at 514-515.

Order affirmed.

WIEAND, J., concurs in the result.

      . The Albright Court stated that
      "[s]uch a formulation tends to focus the inquiry on the respective rights of the contesting parties whereas the real issue is the best interest of the children involved. Restated, the standard in this area is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.” Commonwealth v. Albright, 491 Pa. at 328, 421 A.2d at 161. (Emphasis added).

      . Appellant phrases her argument as follows:
      (1) The hearing judge erred in framing the issue in terms of the absence of any convincing reasons why the father should be deprived of his prima fade right to custody of his child.
      This issue should have been framed in terms of whether convincing reasons appear that the best interests of the child will be served by awarding custody to someone else, in this case, the maternal grandmother.

      . It is worthy of note that nearly three years earlier, at a hearing conducted on August 8, 1979, Robert Novotny, a caseworker supervisor at the Cambria County Children and Youth Center, testified that despite the fact that appellee was then unemployed and receiving income of only $676 per month, he was, nonetheless, financially able at that time to provide for James.

      . We are not troubled by the fact that custody of James had been awarded to appellant by the lower court on three occasions prior to its rendering of the instantly-challenged opinion and order. The original petition for confirmation of custody, filed by appellant in February, 1975, was granted by the lower court on the basis of the respective circumstances of the parties then existing. However, subsequent rehearings granted pursuant to petitions filed both by appellant and appellee were conducted by a second judge for the purpose of appraising the changes in appellee’s circumstances. We believe that the record affords abundant evidence that since the lower court’s initial determination that James should remain in the custody of his grandmother, there has been a steady rise in the social and financial stability of the father’s new family so as to justify the conclusion that, at the present time, the father is an equally good candidate for a custody award as is the grandmother.


author: HESTER, Judge: SPAETH, President Judge,

text:
    482 A.2d 643
    COMMONWEALTH of Pennsylvania, Appellant v. Joseph M. LAFTY.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1984.
    Filed Sept. 28, 1984.

      Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Gilbert E. Toll, Philadelphia, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO, BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Appellee, Joseph M. Lafty, was charged with simple assault, aggravated assault, possession of an instrument of crime-generally, possession of an offensive weapon, and criminal conspiracy as a result of the severe beating of Ronald Thomaston on June 8, 1979 on an elevated public transportation platform at Kensington and Allegheny Avenues in Philadelphia. Appellee accosted the victim uttering a disparaging racial remark and then proceeded to beat him with a “two by four” board. The victim did not provoke the actions of appellee and his companions. Mr. Thomaston underwent surgery on his right elbow, casts were applied to his fractured arms and he remained in Germantown Hospital for ten days. His arms were fractured as he repelled blows to his head and rib cage.

Following a non-jury trial on January 30, 1980, appellee was found guilty of aggravated assault and criminal conspiracy. Appellee’s post-verdict motions alleged that the trial court erred in granting the Commonwealth’s petition for an extension of the trial date under Pa.R.Crim.P. No. 1100. On July 15, 1980, following a brief hearing, the lower court agreed with appellee that his speedy trial rights were violated. Accordingly, appellee was discharged. The Commonwealth filed this appeal.

Criminal charges were filed against Mr. Lafty on the day of the crime, June 8, 1979. As a result, the original estimated run-date for trial under Rule 1100(a)(2) was December 5, 1979. The preliminary hearing was scheduled for June 13, 1979; however, a continuance to July 13, 1979 was necessary due to the victim’s unavailability as he remained a patient at Germantown Hospital. The preliminary hearing did take place on July 13, 1979, and appellee was bound for court on all charges.

On September 18, 1979, the first trial date, appellee requested a continuance in order to locate a defense witness. This was granted and trial was continued to October 29, 1979. On this latter date, trial was again continued to December 11, 1979; the complainant was undergoing oral surgery and was unable to appear. Recognizing that the December 11th date extended beyond the original estimated run-date, the court questioned appellee as to whether he was willing to waive his rights under Rule 1100. Appellee agreed to do so and signed a boiler-plate written form to memorialize the waiver.

On December 11, 1979, the complainant arrived late for court. He was not available earlier that day; therefore, trial was continued for a third time. On the following day the Commonwealth filed a petition for extension under Rule 1100(c), alleging that fifty-four days were excludable from the one-hundred-and-eighty-day period between the filing of the complaint and commencement of trial, and that it had exercised due diligence in promptly prosecuting appellee. The lower court conducted a hearing on this petition for an extension on January 14, 1980. Oddly enough, appellee did not file an answer and accompanying motion to dismiss in response to that petition until January 18, 1980, four days following the hearing. In extending the run-date to January 28, 1980, the court agreed that fifty-four days were excludable. Trial was scheduled for and did commence on January 30, 1980, two days beyond the recomputed run-date. The court believed that January 30th was the earliest available date for trial despite the Commonwealth’s exercise of due diligence.

The Commonwealth’s primary contention on appeal is that appellee waived his right to speedy trial. With respect to this waiver argument, the Commonwealth contends 1) that appellee did not pursue his Rule 1100 rights at any time during the pre-trial stage; 2) that appellee raised no objection at the hearing on the petition for an extension while the lower court re-computed the run-date as January 28, 1980; 3) that appellee insufficiently raised a brief and general objection to the lower court’s finding of due diligence at that hearing; and 4) that appellee’s answer and motion to dismiss, containing specific objections to the run-date extension and the Commonwealth’s allegation of due diligence, were not filed until four days following the Rule 1100 extension hearing. The Commonwealth further alleges that it exercised due diligence throughout the proceedings; therefore, any delays in instituting trial were not attributed to its preparation.

As we are aware of the opinion that the Commonwealth continuously exercised due diligence in attempting to bring appellee to trial, it is not necessary to address whether appellee waived his Rule 1100 rights. The order is therefore reversed, judgment of sentence is reinstituted and the matter remanded for resentencing.

Although Rule 1100(a)(2) requires the commencement of trial no later than one hundred and eighty days following the filing date of the written criminal complaint, certain days can be excluded from this period so that trial may actually occur beyond one hundred and eighty days from the filing date. This proviso is set forth in Rule 1100(d) as follows:

(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of defendant or his attorney.

The first trial continuance was granted at appellee’s request. For the purpose of giving appellee an opportunity to locate a defense witness, trial was continued from its original date of September 18, 1979 to October 29, 1979. Under the present wording of Rule 1100(d), the entire forty-one day period from September 18th to October 29th would be excludable from the run-date calculation. However, the lower court properly excluded only eleven days due to the fact that Rule 1100(d)(2), as it existed at the time of the lower court proceedings, provided for the exclusion of any period resulting from “any continuance in excess of 30 days granted at the request of the defendant or his attorney, provided that only the period beyond the 30th day shall be excluded.” The eleven-day exclusion moved the run-date to December 16, 1979.

The lower court excluded an additional forty-three days from the period for commencement of trial as a result of appellee’s signing a written waiver of Rule 1100 rights on October 29, 1979. This waiver contained standard preprinted language and provided blank spaces for the original run-date, reasons for the continuance, and extended date for trial. Although the form was executed by appellee, his counsel, the prosecutor and the presiding judge, none of the blank spaces was completed. Apparently, the lower court did not consider that a critical defect; instead, the court looked to the colloquy conducted at the time the waiver was signed to determine whether the waiver was intelligently, knowingly and voluntarily made. With the addition of these forty-three days, the run-date became January 28, 1980. We agree with appellee that the validity of this written waiver is in question. We need not, however, address this issue. We are satisfied, given the December 16th run-date, that the Commonwealth presented a timely petition to extend and attempted with due diligence to bring appellee to trial prior to the actual trial date of January 30, 1980.

In reviewing whether a lower court properly ruled that the Commonwealth has or has not met its burden of proving due diligence in a Rule 1100 extension hearing, we are limited to considering evidence presented by the Commonwealth and uncontradicted evidence presented by the defendant. Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596 (1982); Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981). To carry its burden of proving due diligence, the Commonwealth must do more than merely allege due diligence. Evidence must be presented and allegations proven. Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978); Commonwealth v. Porter, 251 Pa.Super. 346, 380 A.2d 812 (1977).

Here, the Rule 1100 extension hearing on January 14, 1980 did not consume more than five minutes. In fact, no testimony was presented; only the statements of the court, defense counsel and prosecutor appear of record. Nevertheless, evidence of due diligence was elicited as the court read notations from the record. In doing so, it noted 1) a continuance of the preliminary hearing from June 13, 1979 to July 13, 1979 due to the complainant’s hospital confinement; 2) the defense request for a trial continuance from September 18, 1979 to October 29, 1979; 3) a second trial continuance from October 29, 1979 to December 11, 1979 as a result of the complainant’s oral surgery; and 4) the trial continuance from December 11, 1979 to January 30, 1980 due to the complainant’s late arrival in court. These court notations were not challenged by appellee.

In Commonwealth v. Bright, supra, this Court was similarly confronted with reviewing an extension hearing where the defendant offered no evidence and the Commonwealth simply offered notations of record made earlier by the court upon granting two continuances due to the unavailability of the complainant on one occasion and the arresting officer on another. In near categorical fashion, the Bright court upheld the sufficiency of court notations in lieu of testimonial or other evidence to demonstrate the Commonwealth’s exercise of due diligence. See also Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977) and Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977).

The Bright position was maintained by this Court in Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983). Four prior listings and accompanying court notations were reviewed by the hearing judge at the extension hearing. Each of the listings respited in a continuance of the trial date. Once again, the Harris court, in similarly terse fashion, recognized the propriety of a hearing court in using court records in determining due diligence.

It enhances our disposition of the instant matter to consider the treatment which Bright and Harris accorded other issues following their recognition of the sufficiency of court notations. For example, in Bright, the first continuance was granted to accommodate the vacationing complaining witness’. When the arresting officer went on vacation, a second continuance was granted. It was of no consequence to the Bright court that a witness’ unavailability was the result of “vacation, illness or other reasons____” So long as the witness’ unavailability is through no fault of the Commonwealth, a finding of due diligence is warranted and an extension of trial is proper. Here, trial was continued when the complainant was undergoing oral surgery and again when he was late for trial. Insofar as the surgery and tardiness were not due to the Commonwealth’s failure to subpoena or notify the complainant of trial, there was no evidence of lack of due diligence. Furthermore, there was no evidence that the Commonwealth knew or had reason to know that the complainant would be unavailable on those two trial dates.

Also, in Harris and Bright, no evidence was submitted by the defendant at the extension hearing. Instead, the defendant asserted quite generally that the Commonwealth did not demonstrate due diligence. Here, upon the hearing court’s pronouncement of the January 31, 1979 extension date, appellee’s counsel retorted: “I object to the finding of due diligence.” N.T. p. 3, January 14, 1980. This too amounts to nothing more than an innocuous objection to the court’s reliance on notations of record. It is evident, then, that where due diligence is founded upon uncontroverted matters of record, appellate review will result in affirmance. Commonwealth v. Kite, 321 Pa.Super. 411, 468 A.2d 775 (1983).

In finding the Commonwealth to have exercised due diligence, we note the Pennsylvania Supreme Court’s policy consideration in Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981):

In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crimes and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308, note 4 (1979). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth. Commonwealth v. Genovese, 493 Pa. at 70, 425 A.2d at 370.

Accordingly, we reverse, reinstate the judgment of sentence and remand for sentencing. Jurisdiction relinquished.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

I do not agree with the majority’s conclusion that the Commonwealth’s extension petition was properly granted. In my view the Commonwealth failed to prove that it was entitled to an extension. However, I believe that appellee has waived the insufficiency of the Commonwealth’s proof. I also find no merit in appellee’s argument that his counsel was ineffective. I therefore concur in the majority’s order.

-1-

The majority states that upon application for extension of the Rule 1100 run date, the Commonwealth need not prove that the scheduled trial date is the earliest date available unless the extension is sought on the basis of judicial delay. At 434 n. 1. This statement is contrary to my understanding of the requirements of Rule 1100. Although Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), was a case of judicial delay, the rule it announced was a general rule, applicable to all cases:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 221-222, 364 A.2d at 1349-1350.

Thus the Commonwealth must always prove both its due diligence and that the trial was scheduled for the earliest date consistent with the court’s business. The proviso does not limit the earliest date requirement but instead adds to that requirement the further requirement that when the Commonwealth claims judicial delay, its proof must meet certain standards. This interpretation has been applied in practice, see Commonwealth v. Donaldson, 334 Pa.Super. —, 483 A.2d 549 (1984) (en banc); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981), and is included in Rule 1100 itself, Pa.R.Crim.P. 1100(c)(4). I find no authority for the majority’s position, and note that the majority cites none. It therefore is necessary, I submit, to consider whether the Commonwealth did meet the earliest possible date requirement.

When trial was continued on December 11, 1979, the trial date was continued to January 30, 1980. The majority opinion remarks that the judge who presided over the extension hearing on January 14, 1980, and who granted an extension, “believed that January 30th was the earliest available date for trial____” At 645. Not only do I find no such statement by the judge in the extension hearing transcript, there is no evidence on the basis of which the judge could have made this statement. The Commonwealth did not present any testimony to show that the assistant district attorney who was present on December 11 asked for the earliest possible date; nor was there any testimony concerning scheduling procedures; nor was the judge asked to take judicial notice of scheduling procedures or court backlog.

At the extension hearing, the judge recited the history of the case from the court file. There is a note on the form showing the history of the case that on December 11 “Comm wit Fta” (the Commonwealth witness failed to appear) and that the case was continued to January 30, and there is a copy of a bench warrant issued on December 11 to the complaining witness, but there is no notation anywhere that January 30 was the earliest possible date. Nor is there any transcript of the December 11 proceeding at which the continuance was granted, so it is not possible to find that at that proceeding the assistant district attorney asked for the earliest possible date for trial.

Given the Commonwealth’s failure to prove at the extension hearing that January 30 was the earliest possible date for trial, the extension was improper. It follows that appellee was not timely tried. For if one assumes that the extension court’s calculation of excludable days was correct, the amended run date was January 28, and appellee was not tried until January 30.

-2-

Although I believe that appellee was tried beyond the Rule 1100 run date, I should not order him discharged, for I believe that appellee has waived any objection to being tried beyond the run date.

The first instance of waiver may have occurred on December 11 when, we may assume, appellee and his counsel heard that trial was rescheduled for January 30 — a date beyond the Rule 1100 period. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981). However, since no transcript of the December 11 proceedings is in the record, waiver cannot be found because it is the Commonwealth’s burden to prove that appellee knowingly and voluntarily waived his Rule 1100 rights. See Commonwealth v. Donaldson, supra.

There is a transcript of the January 14 extension hearing. It reveals that the judge recited the history of the case from the court file, calculating the number of excludable days as he went along. Appellee did not object to the judge’s finding that forty-three days were excludable as a result of the continuance from October 29, 1979, to December 11, 1979, and did not argue that his signed waiver covering that period was defective. Nor did appellee object when the judge added to these forty-three days eleven days as excludable because of a defense continuance and then recalculated the run date as January 28. There being no objection by appellee, I should hold that he cannot now challenge the propriety of the January 28 amended run date. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978); Commonwealth v. Burton, 246 Pa. Super. 498, 371 A.2d 946 (1977).

Anticipating that this court might so hold, appellee points to the fact that at the start of the January 14 hearing, his counsel stated: “We have an answer we will have to file. It’s not objected to.” N.T. 1/14/80 at 2. This answer was filed four days later. Appellee argues that the Commonwealth should be charged with waiver, the theory being that since the Commonwealth did not dispute the statement by appellee’s counsel that an answer would be filed late, it cannot now object to the lateness of the answer, and that when the answer is considered, it shows that appellee did contest the validity of the October 29 waiver, demanded that the Commonwealth prove the factual averments in the extension petition, denied that Commonwealth witnesses were unavailable, and moved for discharge. This argument has no merit. The purpose of filing an answer is to put the Commonwealth to its proof; the purpose of an objection is to bring a point of argument before the court. Neither of these purposes can be accomplished by an answer filed after the hearing, and the court could not rule on appellee’s motion for discharge when it was never presented during the hearing. The Commonwealth’s agreement that it would not challenge the late filing of an answer could only have meant that it would not argue that the defendant had consented to the extension requested in the petition to extend, and that it would therefore prove its case. See Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977) (failure to contest petition for extension results in waiver of right to contest extension on merits); Commonwealth v. Johnson, 261 Pa.Super. 327, 396 A.2d 422 (1978) (same). Here, as discussed, the Commonwealth did undertake to prove its case, by reference to notations in the court’s file and appellee’s signed waiver. The time for appellee to object to that proof was when it was presented, not by answer filed afterwards.

Appellee did make one objection to the Commonwealth’s proof. After the judge amended the run date to January 28, he granted the Commonwealth’s petition for an extension, setting the extension date as January 30, and then changing it to January 31, with the statement, “I rule there was due diligence on the Commonwealth’s part.” N.T. 1/14/80 at 3. As I have stated in the first section of this opinion, I believe this was error because the Commonwealth had to prove not only its due diligence but also that when the case was continued on December 11 to January 30, January '30 was the earliest possible date for trial. Appellee, however, did not make that objection but only objected to the finding of due diligence, and that objection, I believe, had no merit. The preliminary hearing was delayed one month because the complainant was in the hospital; appellee was granted a forty-one day continuance to obtain witnesses, and under Rule 1100 as it then existed, only eleven of those days were automatically excludable; and the continuance granted on December 11 resulted from the complaining witness’s absence. None of these occurrences suggests any fault, or lack of diligence, on the part of the Commonwealth.

-3-

There remains to be considered, on my view of the case, appellee’s argument that to the extent his Rule 1100 contentions have been waived, he was denied his right to representation by effective counsel. Appellee is represented on appeal by counsel other than trial counsel, and this issue has been raised at the earliest opportunity, so it is properly before us. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

In Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), the Supreme Court stated that:

When defense counsel fails to object to a Commonwealth petition for an extension of time, we will not discharge the defendant unless he has been deprived of his underlying right to a speedy trial under either the Sixth Amendment to the United States Constitution or Article 1, Section 9 of the Pennsylvania Constitution. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Such a failure to assert a basic constitutional right is likely to also involve an additional Sixth Amendment denial of the basic right to effective counsel. The present failure to assert a prophylactic rule when noncompliance with it could have arguably been remedied does not.

Id., 502 Pa. at 404-405, 466 A.2d at 1015.

The present case is one in which the noncompliance by the Commonwealth “could have arguably been remedied.” Indeed, it seems to me just the sort of case the Supreme Court had in mind. For if appellee had made the objections that I believe he could have made but has waived because he did not make, I have very little doubt that the Commonwealth could have successfully responded, either by asking the judge to take judicial notice of scheduling procedures or to permit it to offer testimony on those procedures. I should find, therefore, that counsel was not ineffective.

I concur in the majority’s order reversing the trial court’s order, reinstating the conviction, and remanding for imposition of sentence.

      . Contrary to appellee’s position, the Pennsylvania Supreme Court decisions in Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979) and Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), are not applicable. Those opinions provide for the Commonwealth's proof, prior to a grant of a petition to extend the trial date, of its exercise of due diligence and that the actual trial date is the earliest date available. This two-pronged burden of proof applies only where delay is judicially-caused. There is no evidence here of judicial delay.

      . The entire transcript is as follows:
      MS. WIDMAN: [counsel for appellee] We have an answer we will have to file. It’s not objected to.
      THE COURT: This is Commonwealth versus Lafty. The complaint date is 6-8-79. The run date is 12-5-79. On 6-13, the complainant was in the hospital; no excludable days. On 7-13, the defendant was held for Court. On 7-27, there was a bail arraignment. On 9-18 to 10-29, a defense continuance. The defense needed a witness; 11 excludable days. 10-29, Commonwealth witness was ill.
      MS. FLEISHMAN: [assistant district attorney] Commonwealth witness was ill, and defendant waived Rule 1100.
      THE COURT: Yes; we have a waiver in the file.
      (Waiver shown to counsel)
      THE COURT: That’s 43 excludable days; October 29 to December 11. On 12-11, Commonwealth witness arrived late. A total of 54 excludable days added to the run date of 12-5-79 would project an amended run date of 1-28-80. The Commonwealth’s petition was timely filed on 12-12-79. I rule there was due diligence on the Commonwealth’s part, and the extension date is 1-30-80.
      MS. FLEISHMAN: Your Honor, the trial date is 1-30.
      THE COURT: I’ll extend it to 1-31.
      MS. WIDMAN: I object to the finding of due diligence. Would Your Honor grant us a must be tried on this case? Judge Wallace granted a must be tried.
      THE COURT: Must be tried.
      N.T. 1/14/80 at 2-3; RR. 15a-16a.
      This transcript is not included in the record as transmitted to us, but it is included in the Reproduced Record filed by the Commonwealth as appellant, and appellee has not questioned its accuracy.

      . I agree that appellee’s October 29, 1979, Rule 1100 waiver is of questionable validity, at 646, but, like the majority, I need not address this issue.

      . See note 1, supra.


author: HESTER, Judge:

text:
    482 A.2d 651
    COMMONWEALTH of Pennsylvania v. Ronald McCLEARY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Sept. 28, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Marilyn Woolery, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence entered May 4, 1982, and the order dated July 9, 1982, denying a motion for reconsideration of sentence in the Court of Common Pleas of Erie County, Pennsylvania. Appellant, Ronald McCleary, was charged under two separate informations. Pursuant to plea arrangements between appellant’s trial counsel and the District Attorney’s Office, appellant entered guilty pleas to two counts of burglary and to one count of robbery. Appellant was sentenced on the first burglary count to two to four years imprisonment, and to a concurrent sentence of two to four years for robbery. The court further sentenced appellant to a period of five years consecutive probation. Appellant was serving a ten-year probation from Allegheny County at the time of the within incidents.

Appellant contends that counsel provided ineffective assistance at the entry of the guilty plea as well as at reconsideration of sentence, and that the sentencing court abused its discretion in imposing an excessive sentence. These allegations are completely lacking in merit, however, the appeal is untimely; it will be quashed.

The procedural facts are as follows: Appellant entered pleas of guilty on March 9, 1982. Sentence was imposed on May 4, 1982. On May 6, 1982, appellant filed an application to the court to reconsider his sentence. This application was denied on July 9, 1982. The present appeal was taken July 28, 1982.

The issue before us is whether a motion for reconsideration of sentence extends the 30-day appeal period. This issue was recently addressed by this Court in Commonwealth v. Hoskins, 329 Pa.Super. 226, 478 A.2d 45 (1984), wherein we ruled that it does not. See Commonwealth v. Villaloz, 303 Pa.Super. 518, 450 A.2d 47 (1982); Common wealth v. Lee, 278 Pa.Super. 609, 420 A.2d 708 (1980). When an appeal has been filed untimely, the defect is jurisdictional and may be raised by this Court sua sponte. Neither party here raised the issue of timeliness. Commonwealth v. Katz, 318 Pa.Super. 282, 286, 464 A.2d 1343, 1345 (1983).

Appellant did not file a timely notice of appeal within the 30-day period. The notice of July 28, 1982 was filed beyond the permissible period as judgment of sentence was imposed on May 4, 1982. The fact that appellant filed the motion for reconsideration of sentence did not extend the time for taking an appeal. See Commonwealth v. Jones, 307 Pa.Super. 558, 453 A.2d 1028 (1982); Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978).

The general rule is that when a defendant appeals from a judgment of sentence, the time for appeal runs from the date the court imposes sentence, informs the defendant of his right to appeal within 30 days, and enters judgment on the docket. Commonwealth v. Cavanaugh, 500 Pa. 313, 315, 456 A.2d 145, 146 (1983). Our review of the sentencing proceedings reveals that when he was sentenced on May 4, 1982, appellant was advised of his right to appeal. Also, judgment was entered on the docket.

For the foregoing reasons, the appeal was untimely filed. Appeal quashed.

      . The first information, No. 39 of 1982, charged appellant with the crimes of burglary, robbery, theft by unlawful taking or disposition, crimes committed with a firearm, and recklessly endangering another person. The second information, No. 197 of 1982, charged appellant with burglary and theft by unlawful taking or disposition.

      . Our decision to quash this appeal does not affect the timeliness of raising ineffectiveness; this appeal proceeding will not serve as the earliest opportunity to raise ineffectiveness of prior counsel.

      . Pa.R.A.P. 903(a) states that the notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.”

      . The Comment to Pa.R.Crim.P. 1410 states that the mere filing of a motion for modification of sentence does not affect the running of the 30-day period for filing a timely notice of appeal. See Commonwealth v. Leonard, 308 Pa.Super. 292, 454 A.2d 136 (1982).

      . At the sentencing proceedings, Mr. Connelly, appearing for the Commonwealth, and Mr. McCleary, appellant, had the following exchange:
      CONNELLY: Mr. McCleary, even though you pled guilty, you have a right to appeal the guilty plea and the sentence of this Court, if you so desire, do you understand that, sir?
      McCLEARY: Yes.
      CONNELLY: If you wish to take an appeal to the Superior Court, you must do so by filing a notice of appeal with the Clerk of Courts Office within the Erie County Courthouse within 30 days of todays [sic] date. Should you fail to file the notice within the 30 days, you would waive, or give up your right of appeal, do you understand that, sir?
      McCLEARY: Yes, sir, I do.

        CONNELLY: You, also, sir, have a right, if you wish, to challenge the entry of your plea of guilty. You may do so by making a written request to withdraw that plea of guilty within 10 days of today’s date____ If you do not ... you would lose your right to have the plea withdrawn at a later time, do you understand that, sir?
      McCLEARY: Yes sir, I do.
      (N.T. May 4, 1982, pp. 2-3).