author: ROBERTS, Judge:

text:
    528 A.2d 198
    Father James MAMALIS v. ATLAS VAN LINES, INC. McClain Moving Co. Appeal of ATLAS VAN LINES, INC.
    Superior Court of Pennsylvania.
    Argued March 10, 1987.
    Filed June 24, 1987.

      Charles J. Bogdanoff, Philadelphia, for appellant.
    Kenneth S. Siegel, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and ROBERTS, JJ.

       This decision was rendered prior to the death of Justice Roberts.

   ROBERTS, Judge:

The issue in this appeal is whether an agent and its vicariously liable principal are “joint tortfeasors” within the meaning of the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. § 8321 et seq. Under the Act “joint tortfeasors” are “two or more persons jointly or severally liable in tort for the same injury to persons or property,” § 8322. Release of one joint tortfeasor does not discharge other joint tortfeasors unless the release so provides, § 8326. Because we believe that the Legislature intended to keep separate the vicarious liability of a principal from the joint liability of concurrent tortfeasors, we conclude that a vicariously liable principal and agent are not “joint tortfeasors” under the Act. Release of the agent thus precludes further recovery against the principal. We vacate the order and reverse the judgment.

Acting under the apparent authority of Atlas Van Lines (“Atlas”), McClain Moving Company (“McClain”) contracted with Father James Mamalis to ship his personal belongings from Philadelphia to Fairview, New Jersey. McClain loaded Mamalis’ property onto a van, then removed the van to its place of business for delivery the following day. That evening the van caught fire, destroying most of Mamalis’ possessions.

Mamalis brought actions in replevin and trespass against McClain and Atlas Van Lines to recover for the damage resulting from the fire. The complaint against Atlas alleged that Atlas was liable through the conduct of its agents, and included a count in assumpsit alleging that Atlas, through its agents, violated its carriage contract.

Three years after the actions were brought, Mamalis settled his claim against McClain for $25,000, and released it from further liability. The written release agreement purported to preserve Father Mamalis’ claim against Atlas and provided that “the amount of damages which Mamalis may recover from the other tortfeasors shall be reduced by the pro rata share of the consideration paid under this release.” Shortly thereafter, McClain filed for bankruptcy. Atlas then moved for summary judgment, contending that the release of the agent McClain extinguished the entire claim and discharged its liability as principal. It renewed its motion before trial, and again on motion for directed verdict. The trial court disagreed and submitted the case to the jury, which returned a verdict for Mamalis in the amount of $84,402.70.

Appellant once again renewed his claim on motion for post-trial relief. See Pa.R.Civ.P., Rule 227.1. Relying primarily on Bausewine v. Norristown Herald Inc., 351 Pa. 634, 41 A.2d 736 (1945), the trial court held that principal and agent are severally liable and thus fall within the Uniform Act’s definition of “joint tortfeasor.” Since release of one joint tortfeasor does not discharge others under the Act, Atlas’ liability to Mamalis was not discharged. The court also analogized to contract law, under which release of one obligor does not discharge other obligors, even when the co-obligors are principal and agent. See Joseph Melnick Building & Loan Association v. Melnick, 361 Pa. 328, 64 A.2d 773 (1949); Singer v. Ritter, 167 Pa.Super. 154, 74 A.2d 520 (1950). On the premise that principal and agent were “joint tortfeasors,” the trial court reduced the verdict by $25,000, the amount of consideration paid by the agent for the release. See 42 Pa.C.S.A. § 8326. It also calculated delay damages and prejudgment interest of $44,382.54 to arrive at a total verdict of $103,785.24.

The doctrine of vicarious liability allows an injured party to impute to a principal the tortious conduct of an agent, Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 559, 499 A.2d 282 (1985), even though the principal did not commit the act causing the injury. The theory justifying this liability is that between two innocent parties, the risk of injury lies more appropriately with the one who sponsors and benefits from the actions of the actual tortfeasor, rather than with the one injured by those actions. See Aiello v. Ed Saxe Real Estate, Inc., supra. The vicarious nature of a principal’s liability “does not mean that the master in such case is only secondarily liable. He is made primarily liable and the injured party may sue either (principal or agent) as he elects,” Betcher v. McChesney, 255 Pa. 394, 396, 100 A. 124 (1917). Still the agent is ultimately responsible for his own conduct, and the law ameliorates the harshness of the vicarious liability doctrine by allowing the principal to seek indemnity from the agent. See Builders Supply Co. v. McCabe, 366 Pa. 322, 326, 77 A.2d 368 (1951); Ragan v. Steen, 229 Pa.Super. 515, 526, 331 A.2d 724 (1974).

A claim of vicarious liability depends on the life of the claim from which it derives. See East Broad Top Transit Co. v. Flood, 326 Pa. 353, 355-56, 192 A. 401 (1937); Skalos v. Higgins, 303 Pa.Super. 107, 113, 449 A.2d 601 (1982). Termination of the claim against the agent extinguishes the derivative claim against the principal. Moreover, a claim of vicarious liability is indivisible from the direct claim since both are based on the act or acts of only one tortfeasor. In Betcher v. McChesney, supra, our Supreme Court recognized the derivative, indivisible liability of a principal for the tortious conduct of its agent. The Court held that a plaintiff who obtains a judgment against an agent may not recover further from a principal whose liability is merely vicarious:

If (the agent) answered over to the plaintiff for his negligence, that put an end to the defendant’s liability, for plaintiff was entitled to nothing but compensation for his injuries, once for all. ... [I]n this case the law gives the right of election, the party may sue either master or servant, the one for actual negligence, the other for imputed negligence, but it by no means follows that if he sue the one and obtain judgment that he can afterwards sue the other on the ground that he had not realized on the judgment obtained.

The rules of vicarious liability respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available or has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover.

The system of contribution among joint tortfeasors, of which the Uniform Act’s apportionment rules are a key component, has arisen completely apart from the system of vicarious liability and indemnity and meets an entirely distinct problem: how to compensate an injury inflicted by the acts of more than one tortfeasor. Unlike the liability of a principal, the liability of a joint tortfeasor is direct (because the tortfeasor actually contributed to the plaintiffs injury) and divisible (since the conduct of at least one other also contributed to the injury). Builders Supply Co. v. McCabe, supra is a classic example of the difference between the two systems. There, a northbound truck and an eastbound car entered an intersection almost simultaneously. The truck swerved to avoid a broad-side collision with the car, only to proceed head-on into an oncoming vehicle. After the oncoming driver obtained a judgment against the owner of the northbound truck, the Supreme Court rejected the owner’s effort to get indemnity from the eastbound driver. The Court distinguished a principal’s vicarious liability for the acts of his agent, then explained:

In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.

366 Pa. at 328, 77 A.2d 368. Clearly, the northbound and eastbound drivers were “joint tortfeasors” and the only remedy available between them would be contribution.

In this case, Atlas committed no tort, but was liable only because the law imputed to it McClain’s tortious conduct. When plaintiff released McClain, his derivative claim against Atlas was thus extinguished. The written release agreement, to which Atlas was not a party, is thus incapable of reserving claims against a vicariously liable principal. Appellee points out that in Betcher v. McChesney, supra, the Court allowed discharge of the principal only after a judicial determination of plaintiff’s damages. But survival of a claim against a principal turns merely on whether the underlying claim against the agent was terminated, not on how it was terminated or on whether a court has assessed the adequacy of compensation. Even among joint tortfeasors, our Supreme Court recently found no basis “in reason or experience” for the assumption “that a jury verdict more accurately measures the tortfeasor’s obligation than that which is agreed upon between the parties,” Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1, 3 (1987).

Like the north and east bound drivers in Builders’ Supply, the defendants in Bausewine v. Norristown Herald, Inc., supra were “joint tortfeasors” despite the existence of an agency relationship between them. Bausewine was a libel action against a corporate defendant and its president in which our Supreme Court held that discontinuance against the president did not discharge the corporation. The Court wrote that “Norristown Herald, Inc. was the master and Strassburger, its servant. With the defendants in that relationship, it was a mistake of law for the plaintiff to treat them as joint tortfeasors. Their torts were several,” 351 Pa. at 638, 41 A.2d 736. Unlike Father Mamalis’ claim, Bausewine’s claim against Norristown Herald was not based on vicarious liability, but rather on the corporation’s own direct, injury-causing conduct. Both Strassbur-ger and the newspaper published defamatory material about Bausewine. When Bausewine discontinued Strass-burger, a compensable injury caused by the corporate defendant still remained. But when Mamalis released McClain, no compensable injury remained. Thus, the torts of master and servant in Bausewine were indeed “several,” simply because each committed a tort. But this record reveals no evidence of an affirmative act which would make this principal’s liability anything other than vicarious. The weight of any dicta in Blum v. Goldman, 366 Pa. 527, 531, 79 A.2d 248 (1951) falls under the same distinction. See also East Broad Top Transit Co. v. Flood; Skalos v. Higgins, supra.

The derivative nature of a principal’s liability for the torts of his agent makes inapposite the trial court’s analogy to the law of contracts. The contracts rule does not discharge co-obligors upon the release of one obligor. Each obligor under a contract has independently consented to the obligation. Thus, unlike a tort claim against a principal, a contract cause of action against an individual obligor does not depend on the status of a separate claim.

Moreover, the rule allowing a contract obligee to proceed against an agent for an undisclosed principal after disclosure and discharge of the principal stems from a rationale wholly unrelated to the doctrine of vicarious liability. As the court in Melnick, supra made clear:

A person who enters into contractual obligations with an agent, where the agent is acting for an undisclosed principal, may enforce his claim against the agent because he has acted upon the agent’s credit As this Court said in Beymer v. Bonsall, [79 Pa. 298 (1875)] supra, p. 300: ‘Undoubtedly an agent who makes a contract in his own name without disclosing his agency is liable to the other party. The latter acts upon his credit and is not bound to yield up his right to hold the former personally, merely because he discloses a principal who is also liable.’

361 Pa. at 338, 64 A.2d 773.

By providing that the release of one joint tortfeasor does not discharge other joint tortfeasors unless the release so provides, the Uniform Act reverses a common law rule which discharged all joint tortfeasors upon the release of one of their number. The discharge of Atlas here does not follow from this rule, but from well-settled principles of agency and tort law. The concept of joint tortfeasorship, in either common law or statutory form, does not apply to claims involving a principal’s vicarious liability for the torts of its agent. The order of the court of common pleas is vacated and its judgment reversed. Jurisdiction relinquished.

      . The parties apparently agreed that, for the purposes of moving Mamalis’ property, McClain was not operating under Atlas’ actual authority. McClain’s apparent authority to act for Atlas was contested at trial. Viewed in a light most favorable to appellee, the evidence was sufficient to sustain the jury’s finding that McClain had apparent authority. Under a contract between the two, McClain was allowed to use the Atlas name for promotional purposes and required to emblazon its equipment with the Atlas logo. True to this agreement, McClain’s employees answered the telephone by saying "McClain Moving Company, Atlas Van Lines” and drove vans with Atlas’ logo painted on the side.

      . Betcher was cited with approval in Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510 Pa. 1, 22, 507 A.2d 1 (1986).

      . The separateness of the two systems is supported by the Uniform Act itself, which "does not impair any right of indemnity under existing law,” 42 Pa.C.S.A. § 8323. Appellee argues that the General Assembly’s failure to adopt a recommended amendment to this subsection implicitly acknowledges the existence of a hybrid compensation system which would allow both contribution and indemnity in certain situations. We refuse to infer the legislature's intent to so dramatically revise the tort compensation system from its mere failure to act. Moreover, the amendment merely purports to clarify the distinction between contribution and indemnity, not to alter the existing separate systems or to provide additional rights. See Commissioners’ Comment to Uniform Contribution Among Tortfeasors Act (U.L.A.) § 1(f); Craven v. Lawson, 534 S.W.2d 653, 656 (Tenn.1976).
      There would be no recovery in this case even if we were inclined to find that the legislature has authorized combination of the contribution and indemnity systems. Plaintiff argues that McClain’s pending bankruptcy at the time of the release left him with a "Hobson’s choice,” since the automatic stay provisions of the Federal Bankruptcy Code, 11 U.S.C. § 362, would have precluded him from proceeding to trial and obtaining a judgment against McClain. The existing rules, without adjustment, protect plaintiffs interests, since appellee could have obtained full judgment against Atlas, without regard to McClain’s financial status, and allowed Atlas to contemplate the effect of McClain’s bankruptcy in its cross-claim for indemnity.

      . Unfortunately for the northbound driver, Builders Supply was decided under Ohio law which at that time recognized no right of contribution between joint tortfeasors. The northbound driver was thus left without remedy to reduce the judgment against him, 366 Pa. at 335-36, 77 A.2d 368. Cf. Ohio Rev.Code Ann. §§ 2307.31, 2307.32.

      . Indeed, Norristown Herald recognized its joint responsibility and unlike the northbound driver in Builders’ Supply who incorrectly sought indemnity, requested only contribution from Strassburger, 351 Pa. at 637, 41 A.2d 736.

      . Our disposition makes it unnecessary to reach the other issues raised.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    528 A.2d 203
    William L. KNECHT, Trustee in Bankruptcy for Donald J. Trevino, t/b/a Don’s Wood Products v. CITIZENS & NORTHERN BANK. Appeal of Donald J. TREVINO, d/b/a Don’s Wood Products.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1987.
    Filed June 23, 1987.

      John P. Campana, Williamsport, for appellant.
    William F. Campbell, Jr., Wellsboro, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order of September 3, 1986, granting appellee’s motion for summary judgment. As we conclude that the pleadings and affidavits on file demonstrate that appellee is not entitled to judgment as a matter of law, we reverse.

Donald Trevino, t/d/b/a Don’s Wood Products, instituted this action on May 18, 1984, against Citizens & Northern Bank, appellee. On August 13, 1985, appellee’s preliminary objections to that complaint were granted on the basis that it failed to set forth a claim upon which relief could be granted, and Trevino was granted leave to file an amended complaint. In the meantime, the trustee in bankruptcy for Trevino, appellant, intervened as plaintiff.

Appellant filed an amended complaint, which contains the following allegations. In 1981, Trevino operated a pallet-manufacturing and logging business, for which appellee lent him $100,000.00. Of that amount, $88,672.34 had been loaned on the basis of unsecured timber notes. In 1982, Trevino needed an additional $80,000.00, and appellee agreed to lend him $17,500.00, the balance to be financed through the Small Business Administration (“SBA”). Ap-pellee, acting as Trevino’s agent, completed the SBA application, but, he alleges, without his knowledge increased the requested amount from $62,500.00 to $151,172.34, the difference to be used to repay to the bank the unsecured timber notes. Although the loan was refused in January, 1983, Trevino alleges he was not informed of the reason for refusal until November of that year. Trevino further alleges that at that time, Joseph Migliorino, an SBA official from Wilkes-Barre, told him that “but for” the increase in the amount requested, the loan would have been approved. In the meantime, Trevino went bankrupt as the result of his failure to obtain financing.

Appellee denied all the material allegations of the amended complaint, contending that Trevino reviewed and signed the application, which it never altered, that it was not acting as Trevino’s agent in assisting him with the application, and that the loan was refused due to Trevino’s failure to supply adequate financial information to the SBA. Attached as an exhibit to the answer was the letter from the SBA to the bank delineating the reasons for the loan refusal:

The information submitted on January 10, 1983 in connection with your request for SBA to guarantee 90% of a loan to the subject has been carefully reviewed.
Our review of the information submitted reveals many noticeable deficiencies which preclude our accepting the application for processing.
The financial information submitted with the application is without merit. No lender, including this Agency, can perform a thorough and meaningfull [sic] credit analysis of a loan package when such financial information submitted is based on estimates.
Further, the bulk of the request is to refund several loans at your bank. It is not the intention of SBA’s lending programs to bail out banks and/or other creditors who are in a position to substain [sic] a loss thereby transferring the potential loss to government hands.
Additionally, considerable supplementary data was not submitted with the application. However, the above areas of concern, i.e. the lack of accurate financial information precludes consideration and we determined that it was not necessary to delay further.
We would not wish to review this request further without audited financial statement and fully completed loan applications.
We regret our inability to be of assistance to you in this matter. Enclosed herewith is the information previously submitted.

Reproduced record at 33a. Appellee also alleged that Trevino received a copy of the SBA letter in January, 1983.

Appellee filed a motion for summary judgment, with the affidavit of Joseph Migliorino attached. Migliorino denied making any direct statements regarding the reason the SBA loan had been refused. He also noted that he would have no knowledge of the reason since the loan was processed through a branch of the SBA with which he had no affiliation. Supplemental reproduced record at SRRA 30-81.

The trial court granted appellee’s motion for summary judgment on the basis that appellant failed to provide any support for his allegation that the alleged tortious conduct forming the basis of his cause of action (alteration of the loan amount requested) had caused the harm (loan refusal).

The principles applicable to summary judgments are as follows:

Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party. It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party.

Melmed v. Motts, 341 Pa.Super. 427, 429-30, 491 A.2d 892, 893 (1985) (citations omitted).

Under this standard, we accept as true the following denied, but unrebutted, allegations in appellant’s amended complaint. Appellee, while acting as Trevino’s agent, and without his knowledge, intentionally increased the requested loan amount for its benefit in order to satisfy the timber notes. Trevino was not made aware of the reasons for the loan denial set forth in the January 17, 1983 letter from the SBA to appellee-bank. He would have provided the omitted financial information requested in the letter had he known of its contents. Finally, Trevino would not have gone bankrupt had he received the SBA financing.

Appellant takes the position that his complaint sets forth a cause of action under general agency principles. Section 378 of the Restatement (2d) of Agency at comment d provides that a gratuitous agent is subject to the same duties of loyalty as that of a paid agent. Those duties include acting solely for the benefit of the principal in all matters relating to the agency. Id. at § 387. Agents are subject to liability both for loss caused by breach of duty and for breach of contract in accordance with the principles stated in the Restatement of Contracts. Id. at §§ 400, 401.

Thus analyzed, appellee would be liable, as agent, for breach of its duty of loyalty; breach being the act of altering the loan amount for its benefit and to the detriment of Trevino, the principal.

Appellee counters that whether the cause of action set forth in the amended complaint is analyzed under agency principles or otherwise, the essential fact remains that the record does not permit the inference that the SBA loan would have been granted had the loan amount been the lower amount as alleged by appellant.

Appellant’s amended complaint sets forth but one factual allegation regarding this element of the cause of action. Paragraph twelve states, “The plaintiff learned from an SBA official, Joseph Migliorano, that but for the increased amount, the loan would have been granted.” By affidavit, Migliorino denied making that exact statement.

His affidavit set forth the additional information that he was a Business Development Specialist with the Wilkes-Barre office of the U.S. Small Business Administration, his primary responsibility being to manage the delivery of training and counselling services for small business and small business persons; that on or about December 8, 1983, he and Mr. Bailey and Dr. Lynch, members of Service Corps of Retired Executives, met with appellant Trevino. They listened to the business problems then being experienced by Trevino and counselled him relative to these problems. Migliorano also averred that Trevino did not have a copy of the complete loan agreement or the letter declining the loan; that based on the information submitted to him, he indicated to Trevino that he could only speculate as to why the loan had been declined, but perhaps one reason might be that the loan application included a request to refinance unsecured loans held by Citizens and Northern Bank; that SBA regulations prohibited a bailout of a bank which is in a position to sustain a loss.

In response to appellee’s motion for summary judgment, exhibits and affidavits, appellant provided no affidavits, depositions or exhibits.

The sole issue for our determination is whether the trial court correctly entered summary judgment. As we stated in Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659-60 (1984) (emphasis deleted):

“In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.”

Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). We note initially that

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading but his response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Pa.R.Civ.P. 1035.” Marchese v. Marchese, 457 Pa. 625, 628, 326 A.2d 321, 322 (1974).

However,

“Of course, mere failure to file counter affidavits does not assure that summary judgment will be granted to the moving party. The moving party’s evidence must clearly exclude any genuine issue of material fact.”

Aimco Imports v. Industrial Valley Bank, etc., 291 Pa.Super. 233, 435 A.2d 884, 886 (1981). A motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on its pleadings, unless a genuine issue of fact is made out in the moving party’s evidence taken by itself. Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977).

The mere fact that a party fails to submit counter-affidavits does not automatically render summary judgment appropriate under Pa.R.Civ.P. 1035(d). It is preliminarily imperative that the moving party’s affidavit evidence clearly dispel the existence of any genuine factual issue as required by Rule 1035(b) and Marchese v. Marchese, supra. The exhibits and affidavits submitted by appellee do not satisfy this requirement.

Appellant alleges his application to the Small Business Administration was to be for a loan of $62,000.00, and that the amount was increased by an officer of the bank to $150.000.00 without his knowledge or consent. Appellee denies this.

Appellant alleges the $88,000.00 addition to the loan application was to be used by appellee-bank to repay his unsecured timber notes, and that this was one reason the application was turned down. Appellee denies this.

The SBA, by letter to appellee-bank dated January 17, 1983, advised that the SBA was precluded from accepting the application for processing for several reasons. Paragraph four of the letter states,

Further, the bulk of the request is to refund several loans at your bank. It is not the intention of SBA’s lending programs to bail out banks and/or other creditors who are in a position to substain [sic] a loss thereby transferring the potential loss to government hands.

The balance of the letter sets forth the need for accurate financial information, audited financial statement, fully completed loan applications, and a meaningful credit analysis. The application could not be reviewed without this information. The letter does not indicate that it was copied to appellant. He contends he never received a copy, but learned in February, 1983, that the loan had been refused but was never told the reason, and was thus denied the opportunity to meet the requirements set forth in the letter and submit an amended application. Appellee alleges he did receive a copy of said letter.

Appellant alleges that appellee was acting as his fiduciary agent and breached the trust imposed upon it. Appellee denies this.

Appellant alleges that he learned from Joseph Migliorino that but for the increased amount, the loan would have been granted. Appellee submitted an affidavit of Mr. Migliorino wherein he stated he met with appellant on December 1, 1983, along with two members of the Service Corps of Retired Executives at which time they listened to appellant’s business problem, and provided him with counsel. He stated appellant did not have a copy of a complete loan application submitted to the S.B.A. nor the letter declining the loan. Mr. Migliorino stated he never told appellant, “but for the increased amount, the loan would have been granted” or make any similar statement.

In his affidavit, Mr. Migliorino further said: “I stated that perhaps one reason for the decline might be that, according to Mr. Trevino, the loan application included a request to refinance unsecured loans held by Citizens and Northern Bank. I explained to Mr. Trevino that SB A regulations prohibit a ‘bailout’ of a bank which is in a position to sustain a loss.”

All of the foregoing contradictions demonstrate the existence of genuine issues of material fact.

We are of the opinion that the within situation is more appropriately governed by the maxim that doubtful cases should go to trial. Gaul v. City of Philadelphia, 384 Pa. 494, 121 A.2d 103 (1956).

Reversed and remanded for further proceedings consistent with this opinion.

      . Although not addressed by appellant, we recognize that theories of liability contemplated by the Restatement of Agency have been recognized in Pennsylvania. See Buchanan v. Brentwood Federal Savings & Loan Ass’n, 457 Pa. 135, 154-55, 320 A.2d 117, 128 (1974); Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 422, 244 A.2d 22, 25 (1968); Sylvester v. Beck, 406 Pa. 607, 611, 178 A.2d 755, 757 (1962); Claughton v. Bear Stearns and Co., 397 Pa. 480, 488, 156 A.2d 314, 320 (1959).


author: ROWLEY, Judge:

text:
    528 A.2d 207
    Gregg A. LANGLEY, Appellant, v. Geno TIBERI and Jean Tiberi, his wife.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1987.
    Filed June 22, 1987.

      Vincent J. Roskovensky, II, Uniontown, for appellant.
    Samuel J. Davis, Uniontown, for appellees.
    Before ROWLEY, OLSZEWSKI, and CERCONE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a judgment entered in favor of defendants-appellees and against plaintiff-appellant. The critical fact that prompted initiation of the action by appellant was the conversion, by appellees, of a corn crop planted and cultivated by appellant. In March, 1980, the parties entered into an oral agreement whereby appellant was permitted to plant and cultivate a crop of corn on approximately ten acres of appellees’ land. In lieu of paying a specific sum of money as rent for the use of appellees’ land, appellant agreed to clear the brush and undergrowth from an adjacent orchard on appellees’ land containing approximately one acre.

Appellant planted and cultivated a crop of corn on the leased ten acres. However, though anpellees specifically called appellant twice, once in the end of June, 1980, and once in the middle of September, 1980, and requested that he clear the orchard as promised, appellant never did so. Thereafter, appellees sold the corn from the ten acres to a third party. The third party paid $400 and cleared the orchard as compensation for his purchase of the corn.

Appellant then instituted this action seeking damages for the conversion of his corn crop. The trial court, sitting without a jury, determined that appellant had breached his agreement with appellees, by failing to clear the orchard, and was thus not entitled to any damages. After the denial of his post-trial motions and entry of judgment against him, appellant filed this timely appeal.

Appellant raises two issues on appeal. First, he contends that the trial court misapplied the law when it found that he was not entitled to any recovery. Second, appellant claims that the trial court erred in permitting appellee Geno Tiberi to testify regarding his conversation with Mr. Skochelak, the third party. Appellant seeks to have the trial court’s judgment reversed and judgment n.o.v. in the amount of $4450 entered in his favor. In the alternative, he seeks to have the case remanded to the trial court for a new trial.

Our standard of review in considering appellant’s first issue is “to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law.” Buchanon v. Century Federal Savings and Loan Ass’n of Pittsburgh, (No. 505 Pittsburgh, 1984, p. 8, filed February 10,1987) [Available on WESTLAW, PA-CS database]. Further, the trial court’s findings in a non-jury trial “must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record.” Id. at 8-9.

After a thorough review of the record, we find sufficient evidentiary support for all of the trial court’s Findings of Fact. However, upon consideration of the trial court’s application of the law to these facts, we find that it has erred. Therefore, we must reverse the judgment.

The trial court determined that “A person who willfully refuses to perform his part of a bargain cannot look to the Court to enforce his rights at the expense of the party he has willfully wronged.” Opinion, p. 3. Appellant concedes that he failed to perform as promised. However, the trial court has overlooked the type of action before it. Neither party has made a claim for damages for breach of contract. Rather, appellant instituted the law suit to recover damages based on conversion, a civil action, until recently designated an action in trespass. The issue that now presents itself is whether appellant’s breach of the oral lease is a complete defense to an action for conversion. We find that in these circumstances, it is not.

“A conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.” Gottesfeld v. Mechanics and Traders Insurance Co., 196 Pa.Super. 109, 115, 173 A.2d 763, 766 (1961) [quoted with approval in Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 725 (1964)]. The “chattel” alleged to have been converted is the corn crop. Both parties claim an interest in the crop. Appellant alleges that the crop was his personal property. Appellees claim that because of appellant’s failure to perform his part of the bargain, he had no interest in the crop and therefore, they were justified in removing it.

We note that the agreement between the parties was actually an agricultural lease. The only unusual factor involved in this case was appellees’ preference that the “rent” be the clearing of their land rather than payment in cash. Thus, principles of landlord-tenant law are applicable.

The rights to an agricultural crop have previously been discussed by this Court in Commonwealth v. Peterman, 130 Pa.Super. 497, 198 A. 687 (1938). There the Court held that “growing crops, unlike trees or other natural products of the earth, are personal property.” Id., 130 Pa.Superior Ct. at 499, 198 A. at 688. The Court further held that in the absence of an agreement to the contrary, the tenant is entitled to the way-going crop. Id. Though the crop at issue in the instant case was not “way-going,” we find that the same policy applies. Appellant, as tenant of the land and cultivator of the crop, had the right to reap it and take it away.

In so holding, we do not disregard the fact that appellant failed to clear appellees’ land as promised and thus remains liable to appellees for the unpaid “rent.” We emphasize only that when an agreement between two parties involves the leasing of land, any disputes arising thereunder must be resolved in accordance with landlord-tenant principles. Traditionally, “a lease has always been regarded primarily as a conveyance rather than a contract____” Murray on Contracts, § 183 (2d edition, 1974). Further, promises made under leases have been treated independently so that the failure of one party to perform has not excused the other party from performing. Id.

Nonetheless, appellees argue and the trial court agreed that appellant’s non-payment of the rent justified a forfeiture of the lease which resulted in the loss of all rights to the corn crop. We disagree. Under the circumstances of this case, there is no authority for such a conclusion. The law in this Commonwealth regarding forfeitures is quite clear. We first note the “well settled doctrine that forfeitures are odius and must be strictly construed.” Elizabethtown Lodge No. 596 v. Ellis, 391 Pa. 19, 26, 137 A.2d 286, 290 (1958) (citations omitted). Further, “the right to declare a forfeiture must be distinctly reserved,” Thomson v. Christie, 138 Pa. 230, 249, 20 A. 934, 935 (1890), and, “the result of enforcing a forfeiture must not be unconscionable.” Id.

Based on the uncontradicted evidence in the record before us we find that an oral lease existed, that it contained no provision for a forfeiture, that the net value of the corn crop was $4,112 (R.R. at 24), and that the value of personal services to appellees in clearing the land was $50 (Id. at 25). Under these facts appellant’s failure to clear the one acre of land does not justify or warrant a forfeiture of the entire lease.

In this Commonwealth, the rights and liabilities accruing under a lease are governed by the Landlord and Tenant Act, 68 Pa.S. §§ 250.101 — 399.18. Any claims that appellees had against appellant should have been asserted in accordance with the provisions of the Act. Our review of the Act discloses no authorization for the conversion of a tenant’s crop by the landlord upon the tenant’s failure to pay the rent. Rather, the landlord’s remedy lies in an action in assumpsit under the Landlord-Tenant Act and, until recently, by distraint. Accord Commonwealth v. Peterman, 130 Pa.Super. 497, 198 A. 687 (1938) (a landlord’s redress for breach of a tenant’s duty in not exercising good husbandry is in a civil cause, not by confiscation of the tenant’s rights in the crop).

“It is an elementary principle of law that an aggrieved party may not vindicate the wrong done him by breaking the law himself.” Shared Diagnostic Services v. Henning-sen, 602 F.Supp. 428, 430 (E.D.Pa.1984). We thus find that the trial court erred as a matter of law in permitting appellant’s breach to negate his rights as well as appellees’ duties under the lease. As such we do not reach the merits of appellant’s second issue.

Judgment reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . The Pennsylvania Landlord-Tenant Act also defines agricultural crops, whether harvested or growing, as personal property. 68 Pa.S. § 250.102(4).

        . Moreover, even in the event of a forfeiture, the tenant does not necessarily lose the right to remove his personal property from the premises. See 49 Am.Jur.2d Landlord and Tenant, § 1053 (1970).

      . The provision giving a landlord the power to distrain property when the tenant is in arrears, 68 Pa.S. § 250.302, has been declared unconstitutional by this Court in Allegheny Clarklift, Inc. v. Woodline Industries of Pennsylvania, Inc., 356 Pa.Super. 269, 514 A.2d 606 (1986).


author: DEL SOLE, Judge:

text:
    528 A.2d 210
    COMMONWEALTH of Pennsylvania v. Michael ATKINSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1987.
    Filed June 23, 1987.

      S. Sanford Kantz, New Castle, for appellant.

      Angelo A. Papa, Assistant District Attorney, New Castle, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

For our consideration is an appeal from the judgment of sentence entered following Appellant’? conviction for the first degree murder of Kathy Kadunce and the third degree murder of her daughter, Dawn Kadunce. Appellant was sentenced to life imprisonment for the first degree murder conviction. For the third degree murder conviction Appellant received 10 to 20 years of incarceration to run consecutive to the first degree murder sentence. This timely appeal ensued.

By his brief, Appellant raises seven instances of error allegedly committed at the trial court level. They are:

1. Where appellant is arrested outside of the jurisdiction of the arresting officers, which officers are not in “hot pursuit”, is such an arrest illegal, thus necessitating the suppression of all statements and confessions taken as a result?
2. Where appellant is arrested and gives statements of confessions more than six (6) hours after said arrest and is not arraigned until approximately twenty-five (25) hours after said arrest, should said statements or confessions be suppressed?
3. Where statements are taken subsequent to an arraignment which was unnecessarily delayed, and such statements are clarifications of previous statements given prior to arraignment in violation of Davenport, must said statements be suppressed?
4. Where the Appellee causes delays in bringing Appellant to trial and petitions for an extension of time but fails to show due diligence, did the court below err in granting said petition and denying Appellant’s petition to dismiss under Pa.R.Crim.P. 1100?
5. Did the court below err in not granting the appellant a change of venue?
6. Where during the course of the trial a spectator, in full view of the jury, attempted to influence their decision by making several thumbs down motions, did the court below err in not granting Appellant’s motion for a mistrial?
7. Where appellant was convicted m October 6, 1980, and more than five (5) years elapsed before he was sentenced on April 15, 1986, to life imprisonment, was the appellant denied his right to a speedy trial in violation of the sixth amendment?

I.

Initially, we find that absent from Appellant’s post-verdict motions is the assignment of error advanced in Appellant’s first issue, supra. It is well-established that only issues included in post-verdict motions are preserved for appeal. Commonwealth v. Mason, 327 Pa.Super. 520, 476 A.2d 389, 396 (1984). See Commonwealth v. Pierce, 272 Pa.Super. 392, 416 A.2d 97, 99 (1979). Accordingly, Appellant has failed to preserve this issue for appellate review.

II.

Appellant contends that certain oral and written statements given by him should have been suppressed since they were the products of unnecessary prearraignment delay in violation of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In that bellwether decision, our supreme court ruled that all statements made by an accused after arrest, but before arraignment, are inadmissible when arraignment is not held within six hours of arrest. Id. at 471 Pa. at 286, 370 A.2d at 306. See Pa.R.Crim.P. 123 (setting forth prearraignment procedure where warrant of arrest is executed outside judicial district of issuance). See also Commonwealth v. Feighery, 354 Pa.Super. 1, 510 A.2d 1248 (1986) (Davenport six-hour rule expressly held applicable to Rule 123).

Appellant argues that the Davenport mandate was violated insofar as 25 hours elapsed between the time, of his arrest and subsequent arraignment. For purposes of a Davenport analysis, we must first establish at what point Appellant was arrested. An arrest constitutes “any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest”. Commonwealth v, Woodson, 342 Pa. Super. 392, 493 A.2d 78 (1985), quoting Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982). Instantly, Appellant had already been incarcerated for a different offense at the time the warrant for his arrest on the Kadunce murders was issued. Given the fact that Appellant was already restricted, we must evaluate all of the surrounding circumstances in order to set the exact time of arrest. Commonwealth v. Crissy, 304 Pa.Super. 38, 42, 450 A.2d 89, 91 (1982). “Whether an arrest had occurred depends upon the impression conveyed to the person detained, not upon the officers’ subjective intention.” Commonwealth v. McManus, 353 Pa.Super. 355, 359, 509 A.2d 1314, 1316 (1986).

When an arrest occurs is a factual determination to be made by the suppression court. In reviewing such decisions, we are bound by the factual determinations as supported by the record. Moreover, we may consider only the Commonwealth’s evidence and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. McManus, supra, 353 Pa.Superior Ct. at 358-359, 509 A.2d at 1315; Commonwealth v. Crissy, supra, at 450 A.2d at 90. With these principles in mind, we turn to the factual findings rendered by the suppression court.

By his Memorandum Opinion, dated December 17, 1981, the suppression judge held that Appellant was under arrest for the Kadunce murders when the arrest warrant was read to him in the Butler County Jail at 9:00 a.m., February 11, 1980, for Davenport rule purposes. Under this view, there was no violation of the Davenport decision since Appellant was arraigned by 11:00 a.m. that morning. (M.O., 12/17/81, 2-3). We have painstakingly reviewed the record, and after affording proper consideration to the evidence, conclude that the suppression court’s findings are adequately supported.

The transcript of the suppression hearing shows that Appellant was first questioned about the Kadunce murders in the middle of January 1980 while he was incarcerated in the Lawrence County Jail. (N.T., 8/29/80, 3). Towards the end of January, Appellant told the police that he had driven the “actors”, in his car, to the Kadunce residence on the day the murders occurred. (N.T., 8/29/80, 9, 22). Subsequently, Officer Abraham, of the New Castle Police Department, made arrangements to have Appellant transported from the Lawrence County Jail to the Butler County Jail because Appellant felt that his physical well-being was in jeopardy. Officer Abraham testified that he had no further contact with Appellant until February 10, 1980.

On February 9, 1980, an arrest warrant was issued for Appellant. Officer Abraham visited Appellant at the Butler County Jail at approximately 10:00 a.m. the next morning. (N.T., 8/29/80, 26, 33). During that visit, Appellant gave an oral statement. (N.T., 8/29/80, 33). When asked if Appellant was told that he was under arrest for the Ka-dunce murders at that time, Officer Abraham related the following testimony:

Q. Did you advise him that he was under arrest for the murder of Kadunces?
A. I told him that we were going to be presenting him the arrest warrant as soon as we can make arrangements to transport him back.
Q. Okay. Then did you advise him of the warrant prior to taking that oral statment, or afterwards?
A. I advised him when we first started that he would be arrested on it.
Q. Was it your intent to advise him that he was at that particular time not arrested but would be at a later time?
A. I — well, I sort of hinted in a roundabout way, I told him he would be arrested, but there was a copy at the desk that we would be using as a detainer.
Q. Did you ever show him that warrant?
A. No, I didn’t.
Q. Did you ever show him the complaint, or anything?
A. No, I didn’t.

(N.T., 8/29/80, 26-27, 35-36).

The morning conversation was concluded by Officer Abraham with the advice that Appellant should consider his predicament and perhaps contact his attorney. (N.T., 8/29/80, 37). The police returned to meet with Appellant approximately at 6:00 or 7:00 p.m. that evening, at which time a taped statement was taken. (N.T., 8/29/80, 38-39). During this meeting, the warrant was neither shown to, or discussed with, Appellant. (N.T. 8/29/80, 39).

The following morning, February 11, 1980, the police returned to the Butler County Jail around 9:00 a.m. Appellant was shown for the first time the warrant for his arrest. (N.T. 8/29/80, 43). Appellant was arraigned on the murder charges and was then returned to the jail by 1:00 p.m. that afternoon. (N.T. 8/29/80, 43).

The record supports the suppression court’s finding that Appellant was arraigned within the six-hour time limit set forth in Davenport. Preliminarily, we note that Appellant’s arrest was the culmination of a month-long series of interviews with the police concerning his role in the Kadunce murders. The record shows that the police treated Appellant fairly during the course of the investigation and scrupulously honored his constitutional rights.

On February 10, 1980, the day before Appellant was actually arrested, he was notified that he would soon be served with the arrest warrant, in fact, Appellant was advised to evaluate his situation and perhaps contact an attorney. However, Appellant was neither told that he was under arrest nor shown the arrest warrant. The testimony rendered by Officer Abraham clearly illustrates that Appellant was only put on notice that his arrest was imminent.

Contrary to Appellant’s position, this notification cannot be construed to constitute a “neat bit of psychological coercion and durress used by the officers.” (Appellant’s Brief, 22). This theory is particularly untenable given the fact that Appellant was afforded the opportunity to contact an attorney but chose not to do so at that time. Rather, we regard the police’s actions as means to merely prepare Appellant for the ensuing course of events. Accordingly, we are convinced that Appellant could not have concluded he was under arrest for the murders at any time prior to February 11, 1980, at 9:00 a.m., when he was actually served with the warrant. The attendant circumstances to the arrest simply do not support a contrary conclusion. Thus, we find no abuse of discretion committed by the suppression court in refusing to suppress Appellant’s oral and written statements.

III.

Based upon our disposition of Appellant’s Davenport claim, we need not address the merits of Appellant’s third assignment of error.

IV.

Appellant contends that the Commonwealth failed at the Rule 1100 extension hearing to prove due diligence and that the trial court erred in granting the Commonwealth an extension of time within which to commence trial. Our task in analyzing whether an extension of time was properly given involves a determination of whether: 1. trial could not be commenced within 180 days despite the Commonwealth’s due diligence; and, 2. trial was scheduled for the earliest, possible date consistent with the court’s business. Commonwealth v. Fortune, 346 Pa.Super. 465, 468, 499 A.2d 1094,1095 (1985). It is the Commonwealth’s duty to meet this burden of proof by a preponderance of the evidence. Commonwealth v. Lamb, 309 Pa.Super. 415, 423, 455 A.2d 678, 682 (1983). So, too, we are mindful that the decision by the trial judge to permit the Commonwealth a time extension is discretionary. Absent an abuse of such discretion we shall not disturb decisions of this nature. Commonwealth v. Lohr, 503 Pa. 130, 140, 468 A.2d 1375, 1380 (1983). With these principles in mind, we turn to the instant facts.

The complaint charging Appellant with the Kadunce murders was filed on February 9, 1980. Thus, the 180th day would have expired on August 7, 1980. However, on July 14, 1980, the Commonwealth filed it “Application for Order to Extend Time of Trial”. By this petition, it was alleged that, despite due diligence by the Commonwealth, trial could not be commenced within the 180-day period inasmuch as the duplicity and complexity of pre-trial motions filed by Appellant had entailed lengthy conferences and proceedings which, as of that date, were not completed. Following a hearing on the Rule 1100 issue, the trial court granted an extension until September 30, 1980.

The chronology of the pre-trial activity of this case is quite complicated. We have reviewed the transcript of the hearing on the Commonwealth’s motion to extend as well as the various pre-trial documents filed by both parties with the trial court. After this arduous task, we agree with the trial court’s conclusion that the Commonwealth had exhibited due diligence throughout the pre-trial phase of the case and that trial could not commence within the 180-day period. We base our determination largely upon the insightful Opinion of March 4, 1986, filed by the Honorable Glenn McCracken, Jr., which capsulizes the relevant facts involved. For this reason, we need not repeat that thorough analysis. However, we do find it beneficial to incorporate herein Judge McCracken’s discussion regarding the Commonwealth’s diligence during the pre-trial stage of Appellant’s case:

Stipulations were filed on June 17 regarding discovery. To illustrate what matters were covered at that time, we note from the record that the following was agreed to: that the defendant has made no confession, that the defense had received a copy of the autopsy report, that no murder weapons had been tested, that various objects found at the scene of the crime would be provided to defense counsel for inspection, the same provision would be made with regard to items seized from defendant’s car, and that various statements from witnesses would also be supplied. Thus, while there was disagreement on certain items, it is clear that the District Attorney had provided and was prepared to provide much of what the defense was seeking. We cannot conclude that the position taken by the District Attorney was either dilatory or in bad faith. (We would note, in fact, that when the Commonwealth filed its answer to defendant’s request, it requested a conference to resolve the discovery issues.) We next examine the record of the discovery hearing that was held on July 9. The District Attorney, occupied with another murder case in another courtroom, obtained a continuance thereof in order to attend the hearing, at which time the various disputes regarding evidence to be supplied to the defense was resolved. Our examination of the record does not lead us to find any lack of due diligence or lack of good faith on the part of the District Attorney.
At the extension hearing on August 14, the Commonwealth presented evidence that: this case involves two defendants; (N.T. August 14, p. 26) between 17 and 20 witnesses were called at the preliminary hearing (id. p. 27); the police continued to interview witnesses after the preliminary hearing (id. p. 28); between 75 and 100 potential witnesses were interviewed (id. p. 28); the police had between 15 and 20 witness statements (id. p. 28); the prosecuting police officer had worked almost every day and had spent much of his free time on the case (id. p. 29); he had attended several court hearings on discovery and had met several times with counsel for great lengths of time (id. pp. 31-32); defense counsel had been given the names of people interviewed and written statements of witnesses who testified at the preliminary hearing (id. p. 32); evidence had been displayed to co-defendant’s counsel (id. p. 32); another date was set up to complete the task at which 50 or 60 photos were shown, at which time all of defendant’s questions had been answered (id. p. 34); the District Attorney was compiling a package of all statements which had been finished except for one statement obtained on the date of the hearing (id. p. 35); between 30 and 35 new witnesses had been interviewed since the grand jury (p. 43); the material to be shown defense counsel under the order of July 9 was at the police station to be seen, but a month had elapsed before anyone came to review it (id. pp. 47-48); and discovery conferences with counsel were held at the end of June and the beginning of July (id. p. 52). It was stipulated at the hearing that no answer to the Bill of Particulars was needed as the answers were incorporated in the notes of testimony (id. pp. 75-77). Docket entries of the case were admitted (id. p. 78). It was established that discovery conferences had been held on June 10 for three hours (id. pp. 84-85) on June 11 for two hours (id. p. 85) on June 12 for IV2 hours (id. p. 85) and again on June 17 from 5:00 to 8:00 p.m. (id. p. 90). There was an agreement to show counsel for both defendants all the evidence at one time after the Atkinson transcript had been prepared (id. pp. 94-95) and it was established that between 11 and 15 hours, exclusive of court time, had been spent on discovery (id. p. 108). After a careful review of the record, we are satisfied that the Commonwealth was duly diligent with regard to the discovery process. The delay of trial was caused by the nature of the case which involved a large number of witnesses (about 75), the volume of evidence in which two persons were charged with a double murder and pre-trial motions filed by defendant and the good faith disagreement regarding discovery.
In addition, there was an ongoing investigation right up to the day before the hearing on August 14, thus showing that the District Attorney’s office was constantly occupied with preparing the case for trial. When we consider that the District Attorney requested a hearing on the discovery issue, and considering as well the time he spent meeting with counsel for both defendants, we think it would be totally unreasonable and unrealistic to find a lack of due diligence. We therefore conclude that the Commonwealth met its burden of proving that the trial could not begin within the 180-day period despite due diligence of the Commonwealth, and that the order granting an extension was proper.
We note that the discovery process closely paralleled that of the co-defendant Costal whose trial did not commence until 338 days after his arrest. Costal’s Rule 1100 issue, raised post trial, was decided adversely to him by this court. The Superior Court found Costal’s Rule 1100 argument to be without merit without any discussion thereon. Commonwealth v. Costal, [351 Pa.Super. 200, 505 A.2d 337] No. 586 Pittsburgh, 1983, filed February 19, 1986.

Accordingly, we find that the trial judge exercised proper discretion in granting the Commonwealth an extension of time in which to commence trial.

Y.

Appellant argues that the trial court erred in refusing to grant his motion for a change of venue due to prejudicial pretrial publicity. An application for a change of venue is addressed to the sound discretion of the trial judge, and the exercise of such discretion shall not be reversed on appeal absent a finding of its abuse by the court. Commonwealth v. Bradfield, 352 Pa.Super. 466, 481, 508 A.2d 568, 575 (1986).

Ordinarily, one who alleges that he/she was denied a fair trial because of pre-trial publicity has the burden of showing actual prejudice in the empanneling of the jury. Commonwealth v. Cooke, 342 Pa.Super. 58, 63, 492 A.2d 63, 65-66 (1985). However, our Supreme Court has recognized instances where pre-trial publicity is so pervasive and inflammatory that the defendant’s burden of proving actual prior prejudice is obviated. Pre-trial prejudice is presumed if: “(1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting, officer reports.” Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187 (1985) (citations omitted). The publicity must be so extensive and pervasive, without sufficient time between publication and trial for the prejudice to dissipate, that the community must be considered to have been saturated with it. Ibid.

Publicity related to the Kadunce murders began on or about July 11, 1978, the date of the murders. After a few weeks, news coverage on the deaths subsided and then picked up again in mid-February 1980 when Appellant and his co-defendant were formally charged with the homicides. The thrust of Appellant’s claim of community prejudice centers on what he characterizes as “inaccuracy and conjecture on the part of the various reporters”. (Appellant’s Brief, 45). In particular, Appellant draws our attention to two news reports which occurred in the beginning of April, 1980. The first of these reports was broadcasted on April 8, 1980. This story intimated that the murders were connected somehow with satanic cults and that Appellant and his co-defendant were homosexual lovers. In addition, it was indicated that Appellant had been observed leaving the scene of the murders covered with blood. (N.T., 8/29/80, 84-85).

The second of these news stories was televised on April 10, 1980. Similar to the first report, this account described the brutality of the murders and stated that the two defendants were devil worshippers and homosexual. Appellant specifically alleges that this report was prejudicial insofar as it related that District Magistrate Howard Hanna, who arraigned the two men, remarked that the men were, in his opinion, sick men. (N.T., 8/29/80, 89-91).

It is clear to us that the language found in these newscasts raises a number of red flags suggesting inherently prejudicial publicity. However, our analysis does not end at this juncture. The dissemination of such publicity does not automatically cause the presumption that a fair trial cannot be held. Commonwealth v. Romeri, 504 Pa. 124, 135, 470 A.2d 498, 503 (1983). We are cognizant that the critical factor in finding presumptive prejudice is whether the inherently prejudicial material in the news reports at issue was “recent” and “pervasive”. Id. at 504 Pa. at 134, 470 A.2d at 503, quoting Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Thus, we must determine whether there has been a “cooling off period” between the publicity and the beginning of trial. Ibid., quoting Casper, supra, at 481 Pa. at 154, 392 A.2d at 293.

We are satisfied that there was a sufficient “cooling off period” during which any prejudice caused by the newscasts was dissipated. The two reports were televised at the beginning of April 1980. Trial did not commence until September 15,1980. Thus, there was a period of more than 5 months in which the taint engendered by the sensational reports could subside. See Commonwealth v. Pursell, supra, at 508 Pa. at 222, 495 A.2d at 188 (six-month cooling off period found to be sufficient to dissipate prejudice). Moreover, news coverage appearing after April 1980 was sporadic and merely traced the pre-trial progress of the case. Although the record does not contain these news accounts, the trial court found them to be “factual and objective”. (Memorandum Opinion, 12/17/81, 4). Likewise, we note that, other than challenging the prejudicial impact of the April 1980 reports, Appellant does not contend the balance of the news coverage afforded the Kadunce murders was inflammatory. Under these circumstances, we find that the trial court did not abuse its discretion in denying Appellant’s motion for a change of venue.

VI.

Appellant posits that the trial court erred in refusing to grant a mistrial after a spectator, in full view of the jury, allegedly made a “thumbs down” gesture. A mistrial is appropriate “only when an incident is of such a nature that its unavoidable effect is to deprive appellant of a fair trial”. Commonwealth v. Chestnut, 511 Pa. 169, 176, 512 A.2d 603, 606 (1986), quoting Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982). The decision to declare a mistrial is vested within the sound discretion of the trial court. Absent flagrant abuse of discretion, such decisions will not be disturbed on appeal. Commonwealth v. Thomas, 346 Pa.Super. 11, 17, 498 A.2d 1345, 1348 (1985).

In the area of bystander misconduct, it is within the purview of the trial judge’s discretion to determine whether the defendant was prejudiced by the spectator’s behavior. Commonwealth v. Styles, 494 Pa. 524, 529, 431 A.2d 978, 981 (1981). In the case sub judice, we cannot agree with Appellant’s position that his right to a fair and impartial trial was irretrievably lost. The record illustrates that, after being notified of the spectator’s gesture, the trial judge immediately took steps to determine the impact this behavior had on the jurors. (N.T., 10/1/80, 488). The trial court proceeded to question each juror as to whether or not the bystander’s motions had any influence on them. The jurors responded negatively. Thereafter, a motion was presented to the trial court by defense counsel for a mistrial. This motion was denied by the trial judge who noted:

THE COURT: Well, I would put on the record that in addition to the jurors’ answers to my questions, which appear in the black and white record, my observance of their demeanor, and the way they reacted when they were asked about this, the Court is satisfied that they not only all said they weren’t influenced by it, but we think that we are satisfied of their sincerity and the fact that they weren’t effected [sic] by it; and so we will deny that motion for a mistrial.

(N.T., 10/2/80, 557-58).

From these circumstances, we are of the opinion that the trial court did not abuse its discretion in denying Appellant’s motion for a mistrial. In fact, the record demonstrates that the trial judge conscientiously guarded Appellant’s right to a fair and impartial trial.

VII.

Appellant claims that he was denied the right to a speedy trial, as provided for under the Sixth Amendment, insofar as 5 years, 6 months, and 9 days elapsed between the jury’s guilty verdict and the date of sentencing.

Our Supreme Court has enunciated a test by which to determine whether a defendant’s constitutional speedy trial right has been violated. It must first be determined whether the delay itself is sufficient to trigger further inquiry. If so, the reviewing court will balance the length of the delay with the reason for delay, the defendant’s timely assertion of the right to a speedy trial, and the resulting prejudice to the interests protected by the Sixth Amendment’s right to a speedy trial. Commonwealth v. Glover, 500 Pa. 524, 529, 458 A.2d 935, 937 (1983), citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In the case at bar, we find that the 5V2 years delay in sentencing merits further inquiry by this Court. The second factor to be considered is the cause of the delay. The record shows that the Commonwealth did not attempt to delay the sentencing phase of Appellant’s case. Rather, a myriad of occurences transpired following Appellant’s conviction that collectively caused the lengthy delay. Initially, trial counsel was disbarred which necessitated his successor to review over 3,000 pages of testimony in order to proficiently defend his client. However, the transcribed record was not made available to counsel until August 26, 1981, almost a year after the jury’s verdict. However, Appellant’s new counsel was also disbarred but failed to notify Appellant of this fact. Thus, nothing was done on Appellant’s behalf until April 28, 1984, on which date Appellant was appointed his third counsel. It took nearly five months for the files and transcripts to be delivered to Appellant’s new counsel for review and preparation of post-trial motions. However, Appellant did not have the benefit of this counsel for long since counsel withdrew in December of 1984 due to a conflict caused by third counsel’s subsequent employment at the Public Defender’s Officer. Finally, present counsel was appointed to represent Appellant. Argument on the post-trial motions was postponed until August of 1985 so that a proper review of the record could be conducted.

It is patently clear that the inordinate delay in sentencing was caused by the fact that Appellant had numerous attorneys representing him and the exorbitant amount of time that passed before Appellant’s files were passed to each attorney. The bulk of this delay occurred for 3 years, during which, second counsel made no efforts to properly represent Appellant at the post-trial stage. The delay was not occasioned by a deliberate attempt by the Commonwealth to hamper Appellant’s defense. In fact, the 5V2 year deal was caused by negligence on the part of Appellant’s attomies. For this reason, the responsibility for this lapse in time does not weigh heavily against the Commonwealth for purposes of this analysis. Commonwealth v. Glover, supra, at 500 Pa. at 528, 458 A.2d at 937.

The next factor to be considered is whether Appellant made a timely assertion of his right to a speedy trial. We note from the record that Appellant made no attempt, prior to sentencing, to allege this infraction of his Sixth Amendment rights. Furthermore, when his oral motion to dismiss the charge for lack of speedy sentencing was denied, Appellant did not advance this claim in a motion to modify sentence. Thus, it cannot be said that Appellant made a timely assertion of his right to a speedy sentencing.

The final factor to be considered deals with whether the delay resulted in any prejudice to Sixth Amendment interests. “The particular interests that the Sixth Amendment was designed to protect are the following: to prevent oppressive pre-trial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired.” Commonwealth v. Glover, supra, at 458 A.2d at 937, citing U.S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The last of these interests is of particular importance. Ibid. Other than citing the length of the delay in sentencing, Appellant has not supplied this Court with an indication as to how he has been prejudiced. The record reveals that, at the time Appellant was sentenced, he was serving a sentence of 41/2 -9 years incarceration for rape and had never applied for parole even though his minimum had expired. We note, too, that the period of delay in sentencing did not exceed the collective minimum term of imprisonment to which he was sentenced for the charges sub judice. Thus, any claim of prejudice under these circumstances must fail.

After balancing the preceding four factors, we conclude that Appellant was not denied his right to a speedy trial. The cause for the delay was directly related to Appellant’s counsels’ actions, not dilatory tactics employed by the Commonwealth. Further, Appellant did not seek to assert his right for a speedy trial in a timely fashion. Finally, Appellant has not convinced us that he was in any way prejudiced by the delay.

Judgment of sentence affirmed.

      . Appellant argues that 30% of the jurors called were dismissed due to having formed opinions. We do not consider this aspect of his argument inasmuch as the record, as sent to this court, does not contain a transcript of the voir dire proceedings. "[F]actual allegations, de hors the record, cannot be considered by a reviewing court and the practice of asserting facts in an appellant’s brief, which allegations do not appear in the record, has recently again been condemned" by our Supreme Court. Commonwealth v. Pursell, supra, at 508 Pa. at 222-223, 495 A.2d at 188 (citations omitted).


author: JOHNSON, Judge:

text:
    528 A.2d 219
    COMMONWEALTH of Pennsylvania, Appellant, v. Amos CLEVELAND.
    Superior Court of Pennsylvania.
    Submitted April 22, 1987.
    Filed July 1, 1987.

      Gaele M. Barthold, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Robert R. Redmond, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Following a non-jury trial, appellee was convicted of knowing or intentional possession of a controlled substance and manufacture, delivery or possession with intent to manufacture or deliver a controlled substance. Post-trial motions were denied and appellee was sentenced to a term of incarceration of IIV2 to 23V2 months followed by 10 years probation. As a condition of parole/probation appel-lee was ordered to complete at least one year in-patient drug treatment, unless the court ordered differently. The sentence was to run concurrently to the sentence appellant was already serving for robbery. After the Commonwealth filed a petition to reconsider and modify sentence the court vacated the sentence. The court later denied the Commonwealth’s petition and re-imposed the above sentence. The Commonwealth appeals to this Court from the judgment of sentence and raises one issue:

DID THE SENTENCING COURT UNREASONABLY DEVIATE FROM THE SENTENCING GUIDELINES IN SENTENCING DEFENDANT, A PREVIOUSLY CONVICTED MURDERER AND ROBBER, TO A SENTENCE MORE THAN FOUR YEARS BELOW THE MINIMUM GUIDELINES FOR THE SALE OF HEROIN?

Before we can reach the merits of the issue of the appropriateness of the sentence we must determine whether there exists a substantial question that the sentence imposed is not appropriate under the sentencing code, 42 Pa.C.S. § 9701 et seq.. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987. If the Commonwealth demonstrates such a question then it can invoke this Court’s jurisdiction and obtain appellate review of the trial court’s exercise of discretion in sentencing a defendant. Tuladziecki, id.

In compliance with Pa.R.A.P. 2119(f), the Commonwealth sets forth in a separate section of its brief a concise statement of the reasons upon which it relies for allowance of appeal with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). The Commonwealth states:

Defendant was convicted of selling heroin. Although the pre-sentence investigation predicted recidivism, and despite defendant’s record (which includes convictions for murder, robbery and aggravated assault), the sentencing court imposed a sentence of iV-h to 23V2 months, to run concurrently with an earlier sentence, and 10 years probation. Since defendant was already incarcerated on another, lengthier sentence, the instant penalty is, in effect, purely probationary.
The sentencing court gave no proper consideration to the protection of the public, the nature and circumstances of the crime, defendant’s history and characteristics, the pre-sentence investigation, or the sentencing guidelines. The sentence imposed also depreciates the serious nature of the defendant’s crime. See 42 Pa.C.S.A. §§ 9721, 9722, 9725. Thus, the sentence below raises a substantial question as to whether the general scheme established by the Sentencing Code has been followed. The Court’s review of this sentencing appeal is, therefore, appropriate.

Given the appellee’s record and the seriousness of the crime, the actual sentence imposed by the trial court raises a substantial question as to whether the scheme, as a whole, established by the sentencing code has been compromised. We believe there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Accordingly, we grant allowance of the appeal, and proceed to examine the merits of the Commonwealth’s argument about the sentence.

In reviewing a sentence the legislature has mandated that we shall vacate the sentence and remand the case to the sentencing court with instructions if we find that the court sentenced outside the sentencing guidelines and that the sentence is unreasonable. 42 Pa.C.S. § 9781(c). The legislature has provided that:

In reviewing the record the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

The trial court found the offense gravity score for delivery of heroin to be (8) eight and appellee’s prior record score to be (6) six. Accordingly, the minimum range under the sentencing guidelines, 204 Pa.Code § 303.1 et seq., is 66 to 90 months, the aggravated minimum range is 90 to 112 months, and the mitigated minimum range is 50-66 months. The sentence imposed by the trial court of IIV2 to 23lk months is thus outside the guidelines. We must determine whether such sentence is unreasonable.

The first area which we must address is the nature and circumstances of the offense and the history and characteristics of the defendant. Evidence presented at trial established that a police narcotics officer watched appellee sell several bags of heroin to another man in an abandoned Philadelphia building in the late morning hours of June 23, 1983. The record shows that appellee has been previously convicted on twelve separate occasions as an adult. These convictions include murder in the second degree, robbery, theft, aggravated assault and battery, assault and battery, larceny, possession of a controlled substance as well as other drug related offenses. The convictions date as early as 1958. Appellee has exhibited disrespect for the court system and failed to appear for sentencing before Judge Braxton on a prior robbery conviction. Appellee is currently 50 years old. The record reveals appellee was a heavy drinker and that he had a heroin addiction which grew into a $200 a day habit. Appellee has been offered treatment for the addiction from at least two treatment facilities. The record evidences a lifestyle of drugs and crime of considerable duration.

The second factor which we must consider is the opportunity of the sentencing court to observe appellee, including any presentence investigation. Keeping in mind the fact that the trial court did in fact observe appellee, we are confronted by the conclusion reached in the pre-sentence investigation, which was before the court, that:

The Defendant does not appear to be one who is motivated toward improving his position in life. Despite the drug programs which were afforded him in the past while he was on Parole and Probations for the State the Feds and the City of Philadelphia he has nonetheless continued on his patterned adult anti-social criminal behavior. One can only assume judging from the Defendant’s record that upon his release from custody his chances of recidivism will be great.

The mental health evaluation evidences that appellee does not have a major mental illness. The medical doctor who prepared the report concluded that there was no psychiatric reason which would interfere with the sentencing process.

The third factor that we must consider is the findings upon which the sentence was based. At the resentencing hearing the court presented various reasons for the lenient sentence. These included:

1) . The quantity of the sale was small
2) . The appellee’s age (now 50)
3) . The appellee’s support obligation to his children
4) . The fact that appellee had never had drug in-patient rehabilitation
5) . The fact that incarceration would create a hardship for appellee.

Finally, we must consider the sentencing guidelines. As we have already discussed even the mitigated minimum range provided by the guidelines of 50-66 months greatly exceeds the HV2 to 23 V2 month sentence which appellee received. Appellee was thus sentenced not just outside the guidelines, but grossly outside of the guidelines.

Taking into consideration these four areas which the legislature has mandated that we regard in reviewing the record, we inexorably are led to one conclusion: the sentence imposed by the trial court is unreasonable and appellee must be resentenced.

In reaching this conclusion we are mindful of the great discretion vested in the trial court which allows it to tailor a sentence suited to the particular needs of a defendant. In this case the sentence is so extraordinarily lenient that it cannot stand in light of the record. In appellee’s favor certainly is the fact that the court had an opportunity to observe him and perhaps to be convinced of the hardship a longer sentence would impose on his children. Similarly, another factor which calls for leniency is that appellee apparently has not been involved in an in-patient drug rehabilitation program. Also, the court seemed to be convinced by certain expert testimony that in light of appellee’s age, he was “aging out”, i.e. that this type of criminality could be expected to diminish as appellee grows older.

Considering all of these things, and with all deference due to the trial court’s judgment, we cannot ignore the fact that appellee was convicted of selling heroin. He has a prior record for drug related and violent crimes, not the least of which include murder, aggravated assault and battery and robbery. His sentence of 1IV2 to 23V2 months was concurrent to the sentence he had already received for a prior conviction of robbery. In effect he received no new time for selling heroin. While the factors relied upon by the trial court may have justified sentencing within the mitigated minimum range, we see nothing which justifies the sentence actually imposed.

Accordingly, we vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

      . Act of April 14, 1972, P.L. 233, No. 64; 35 P.S. § 780-113(a)(16).

      . Act of April 14, 1972, P.L. 233, No. 64; 35 P.S. § 780-113(a)(30).