author: MONTEMURO, Judge:

text:
    458 A.2d 946
    Thomas S. CHRISTO and Blanche Greenberger, Appellants v. BRITTANY, INC., v. Antoinette B. TCHIRKOW, individually and as Executrix of the Estate of Edgar G. Tchirkow, Deceased; and Drusilla M. Goll and William A. Rennekamp, Executors of the Estate of Phoebe M. Rennekamp, Deceased for Phoebe M. Rennekamp, individually and as Executrix of the Estate of William A. Rennekamp, Sr., Deceased; Tuscany, Inc., Brittany, Inc., and Maple Heights Corporation, v. MAPLE HEIGHTS CORPORATION, v. TUSCANY, INC.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed March 4, 1983.
    Reargument Denied May 13, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      John E. Evans and James W. Daub, Pittsburgh, for appellants.
    Scott E. Henderson and Maurice A. Nernberg, Jr., Pittsburgh, for appellees.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the lower court’s orders granting summary judgment in four consolidated cases in favor of defendants, owners of certain apartment buildings, and against plaintiffs, real estate brokers, claiming entitlement of brokerage fees.

The appellants herein, plaintiffs below, Thomas S. Christo and Blanche Greenberger [hereinafter Christo and Greenberger respectively] are real estate brokers in Allegheny County. The appellees herein, defendants below, include Antoinette Tchirkow and Phoebe Rennekamp [hereinafter Antoinette and Phoebe] who are shareholders, in varying proportions, of the three defendant corporations—Brittany, Inc., Tuscany, Inc., and Maple Heights Corporation [hereinafter Brittany, Tuscany and Maple Heights respectively]. Each corporation was owner of one apartment building— The Brittany, The Tuscany and the Normandy, respectively.

In September, 1975, following the death of Edgar Tchirkow (and many years after the death of William Rennekamp), Antoinette and Phoebe decided to put the buildings up for sale. Antoinette retained attorney Maurice Nernberg to advise her concerning the sale. Attorney, Frank Mast, was retained by William Rennekamp to assist and advise Phoebe concerning the sale.

In October, 1975, appellant Christo, a friend of the late Edgar Tchirkow, approached Antoinette inquiring about the purchase of the buildings. Christo asserted that he wished to purchase the buildings for himself. He was referred to Nernberg to whom he made an offer of $1,350,000.00 which was rejected. Nernberg then provided financial information regarding the building to Christo by letter. The letter ended with the following provision. “REQUESTED PRICES ARE NET—SELLERS WILL PAY NO COMMISSIONS, NOTE: These documents are for private use only, and may not be shown other than for your use as a principal.”

Christo subsequently made a second offer to purchase the buildings for $1,450,000.00; this, too, was rejected since no offer of less than $1,550,000.00 net to the owners would be considered.

At this point Christo began looking for a buyer who would pay the figure demanded by the owners. Christo contends that he did this at the behest of Mast. Specifically, he asserts that in December, 1975, he saw Mast at the Duquesne Club eating lunch and Mast said “Tom, get yourself an offer of fifteen-five for the package. You’re going to make yourself a deal.” The appellees dispute this assertion stating that all dealings with Christo were based on the assumption that he was acting for himself only, not as a broker for third parties. The issue is further clouded by contradictory statements of appellant Christo given during his depositions on August 3, 1976. For example:

Q. All right. Now, tell me again, Mr. Christo, what they stated with respect to your trying to get somebody to buy these building?
A. Well, they told me that it would have to be cash, there would be no strings attached to them, it would have to be net and thereafter, I listed the services of Mrs. Blanche Greenberger.
Q. Let’s go back, Mr. Christo. Who told you this?
A. What do you mean, “Who told me this”?
Q. Well, you testified that you were told, I gather, to find a buyer. Is that correct?
A. I tried to find a buyer. They didn’t try to find a buyer.
Q. Did they request that you do that?
A. No.
Q. They did not request it. You were just doing this on your own. Is that correct?
A. Sure.
Q. All right. N.T. p. 20

And also:

Q. Did you tell Mrs. Greenberger about who you were representing?
A. I told her the buildings were available. I didn’t represent anybody. I knew they were available and there had to be an offer made for fifteen-five, $1,550,000. That would be the only offer that would ever be considered.
Q. But you didn’t tell Mrs. Greenberger that you were the agent for the seller?
A. I was not an agent for the seller.
Q. Did you ever tell Mrs. Greenberger that you were an agent for the seller?
A. Not being in the real estate business, Mrs. Henderson, you probably wouldn’t know the ethics among real estate people. We talk to each other about deals, you understand what I mean, and that’s how we do business.
Q. Well, did you ever tell Mrs. Greenberger that you were an agent for the corporation which owned the buildings?
A. No. I told her I was not an agent. N.T. pp. 24-25

And further:

Q. In paragraph nine of your complaint it is stated that you were authorized to list the buildings for sale. Is that correct?
A. I didn’t get that.
Q. Well, look at paragraph nine, which is in front of you, Mr. Christo.
A. Yes.
Q. Do you see the part in the fourth line regarding “to list for sale”?
A. Well, they did not actually list these properties. They told me about them, I knew about them. I was just trying to find a buyer. That’s all.
Q. They didn’t tell you to list them for sale. Is that correct?
A. I don’t know what you mean by listing.
Q. I’m asking you, it’s in your complaint.
A. Well, when they talk about properties like this, they really list them with you.
Q. Did you ever have a listing agreement with Maple Heights Corporation?
A. No.
Q. Did you have any written agreement with either the Tuscany or Brittany Corporations?
A. I didn’t have no listing period.
Q. Did you ever tell Mrs. Greenberger that you had a listing?
A. I told Mrs. Greenberger about the buildings. I told her that they were available. I didn’t have a listing or contractual relation between the seller or the properties we listed with me in any way. I told her about them and she went out and got a buyer.
Q. Did you have any understanding with Mr. Mast regarding any commission you might get?
A. No commissions were ever discussed. N.T. pp. 40, 41

And further:

Q. Did you ever become an agent of the corporations for the purpose of selling these buildings?
A. No.
Q. Did you ever become an employee of the corporations for the purpose of selling these buildings?
A. No.
Q. Did you ever become an agent for Mr. Mast for the purpose of selling the buildings?
A. No.
Q. Or Mr. Nernberg?
A. No. I was not considered an agent.
Q. Who were you representing when the offer was made by Mr. Zytnick?
A. Well, it was an understanding between myself and Mrs. Greenberger.
Q. What was that understanding?
A. That we were to be co-brokers to sell these properties and that culminated the offer or brought upon the offer. N.T. p. 69

And finally:

Q. Was there anything else that was said during those conversations?
A. No. Not that I recall.
Q. Did Mr. Mast say anything about your authority in this matter?
A. My authority was never questioned as long as we got a million, five-fifty.
Q. What was you authority, sir?
A. I had no authority of any kind. I was just acting on my own. N.T. p. 73.

In any event, Christo enlisted the services of appellant Greenberger as a co-broker. In March, 1976, Mrs. Greenberger and her associate produced a prospective buyer, Allan Zytner. Before the owners would allow Zytner to inspect the buildings, Christo and Greenberger were required to sign a letter disavowing any agency relationship with the owners and agreeing to indemnify the owners for any commission payments for which they might become liable.

Zytner then offered to purchase the buildings. He signed a short form sales agreement and tendered a check payable to Thomas S. Christo in the amount of $50,000.00 in “hand money”; both of which were delivered to Christo who relayed them to Mast. Subsequently, the offer to buy was rejected by the owners, who had received other offers for more money.

Christo and Greenberger then brought actions in assumpsit and trespass against the individual and corporate defendants alleging in one count a breach of a brokerage contract, and in a second count that each defendant corporation tortiously interfered with plaintiffs contractual relationship with the other two corporations. After extensive discovery, defendants filed motions for summary judgment in each action. After a hearing, the lower court granted summary judgment in favor of the defendants and plaintiffs appealed.

Appellants contend that the summary judgment was improperly granted because a genuine issue of material fact exists as to whether or not a brokerage contract between Christo and the defendants is extant. Christo asserts such a contract was created by the alleged requests of Mast subsequent to the rejection of Christo’s offers to purchase the properties. The entire issue is complicated by the contradictory statements made, by appellant Christo, in his deposition and by the letters signed by Christo and Greenberger disavowing any contractual relationship with the appellees.

A summary judgment can only be granted in cases where there is no genuine issue of any material fact and where the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. In determining whether there is a dispute of material fact, the court must take that view of the evidence most favorable to the non-moving party, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, and thus placing the burden of proving the absence of any factual issue on the moving party. Badami v. Dimson, 226 Pa.Super. 75, 310 A.2d 298 (1973).

The appellees’ motions for summary judgment were premised upon the absence of any brokerage contract between Christo or Greenberger and the appellees. To substantiate this contention they relied principally on the admissions in the deposition testimony of Christo and the letters of Chris-to and Greenberger denying any brokerage relationship.

It is clear that the appellants, Christo and Greenberger, must be able to prove that either an express or implied brokerage contract existed between themselves and appellees in order to maintain a viable cause of action. This is because any acts performed by the appellants as mere volunteers will not entitle them to a recovery. Our Supreme Court stated in Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962):

In this area of the law certain principles are well established: (1) a broker cannot recover a commission, even though he brought the seller and buyer together, unless he can prove a contract of employment, express or implied, oral or written, between himself and the buyer (or seller) or an acceptance and ratification of his acts by the buyer (or seller): (2) in the absence of an exclusive agency, if the actions of a broker constitute the efficient cause of the production of a buyer (or seller), he is generally entitled to his commission even though the sale was finally concluded or completed by the seller (or buyer) himself, or another broker; (3) the mere fact that a broker has carried on negotiations with a prospective buyer (or seller) does not entitle the broker to a commission unless his efforts constituted “the efficient procuring cause of the sale,” ... (footnotes omited) (emphasis added).

Id., 407 Pa. at 55-56, 180 A.2d at 249. See also Re Trust of Coho, 421 Pa. 448, 219 A.2d 657 (1966); In Re Follansbee’s Estate, 161 Pa.Super. 31, 53 A.2d 864 (1947).

Therefore, in the present case our inquiry is focused upon whether or not Christo and Greenberger’s allegations of a brokerage contract based upon the alleged requests by Mast to procure a purchaser are sufficient to create a genuine issue of material fact and thus withstand appellees’ motions for summary judgments. We find they are not.

If our decision were based solely upon the restaurant conversation between Christo and Mast, quoted supra, we would be required to reverse the lower court’s decision and allow this case to proceed to trial since the question of whether Mast’s alleged request created a contract is one for the fact finder to determine. However, we find that the relationship between the appellants and appellees at the times relevant to this cause of action is controlled by the letters of Christo and Greenberger of March 9, 1976, to Frank Mast quoted supra.

Regardless of whatever effect Mast’s request made in December, 1975 had, it is clear that at the relevant time, that is, prior to and at the time of the prospective purchaser’s offer to purchase the apartment buildings, the understanding of the parties was that no brokerage contract existed between appellants and appellees.

Furthermore, the letters not only militate against a finding of a brokerage contract, but also contraindicate the existence of any acceptance or ratification of appellants’ acts by appellees. Axilbund v. McAllister, supra.

Because there was no contractual arrangement between the appellants and appellees we must conclude that appellants were acting as mere volunteers with respect to the procurement of a purchaser of appellees’ properties, or that they ultimately sought remuneration from the purchaser. In any event, the lack of any issue of material fact and law relevant herein requires a finding that judgment was properly granted in favor of appellees.

Accordingly, we affirm the orders of the lower court.

      . Antoinette Tchirkow and Phoebe Rennekamp were named as defendants, both in their own right and as the respective executrixes of their deceased husbands, Edgar Tchirkow and William Rennekamp. Phoebe Rennekamp has also died in the course of this litigation and her interest is currently represented by appellees, Drusilla Goll and William Rennekamp.

      . The letter dated March 9, 1976, addressed to Frank Mast, Esq., and Joseph D. Shuman, Esq., signed by Thomas S. Christo stated:
      Gentlemen:
      Mr. Maurice A. Nernberg, Jr. previously furnished me with certain financial statements relating to the operation of the apartment buildings known as the Tuscany (Washington Road, Mt. Lebanon), the Brittany (Brownsville Road, Brentwood) and the Normandy (Fifth Avenue, Pittsburgh). Such statements were furnished to me as a prospective purchaser of these properties. Accordingly, I have not been and am not now retained by you, your clients, Mr. Nernberg, or his clients to represent anyone of you in attempting to sell such real properties or the stock of the corporation which own such real properties.
      Blanche Greenberger, with whom I have been associated in prior real estate transactions, has advised me that a client of hers is willing to make an offer to purchase such real properties for the sum of 81,550,000 on an "as is” basis. It is expressly understood that you, your clients, Mr. Nernberger and his clients have not and will not make any representations and warranties with respect to these properties, other than the ownership thereof. The price of $1,500,000, payable to your clients, will be net of all commissions, fees or transfer tax stamps, inasmuch as the purchaser will pay all transfer taxes and any and all commissions and fees.
      I do hereby represent and warrant that the only parties who have acted as brokers, agents or finders in connection with this proposed transaction are Mrs. Greenberger and myself. Accordingly, Mrs. Greenberger and I agree and do hereby indemnify you, your clients, Mr. Nernberg and his clients, against any liability for commissions and fees which may be payable to any party whatsoever who may have acted or may act as a broker, agent or finder in connection with this transaction, and do further indemnify you, Mr. Nernberg, your clients and Mr. Nernberg’s clients against all costs (including legal fees), loss, damages or expenses which may arise by reason of the assertion of any claim against any of such parties for any such commissions and fees. This letter does not constitute an offer to purchase and any such offer shall be embodied in a formal Agreement of Sale in which Mrs. Greenberger’s client will also represent that he has not dealt with anyone other than Mrs. Greenberger and me as brokers, agents or finders in connection with this proposed transaction and he will indemnify you, Mr. Nernberg, your clients and Mr. Nernberg’s clients against such liabilities as are described in the preceding sentence.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    458 A.2d 951
    COMMONWEALTH of Pennsylvania v. Larry GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1982.
    Filed March 25, 1983.

      Gilbert E. Toll, Philadelphia, for appellant.
    Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

We here review an appeal brought by appellant from a judgment of sentence to a term of imprisonment of from eighteen to thirty-six years, imposed after he entered a guilty plea to five charges of robbery, three charges of conspiracy, one charge of unlawful restraint, two charges of assault and one charge of possession of instruments of crime. Appellant contends: (1) that the sentence imposed was illegal; (2) that the sentence imposed was an abuse of discretion; and (3) that the sentencing judge erred by failing to conduct a hearing upon the motion of appellant to withdraw his plea of guilty. We find no merit to these contentions and, accordingly, we affirm.

Appellant, in the company of two other men and a woman, traveled from Washington, D.C. to a house in Philadelphia where a craps game was being held. Appellant and the two other men each used a gun to threaten six participants in the craps game while proceeding to strike three of the players and rob four of them. Appellant and one of the other robbers, while in flight from the craps game, robbed at gunpoint another individual of the sum of $275.00. When police pursuit began, appellant and his accomplice, with threats and pointed gun, forced their way into the car of another individual. Defendant was subsequently apprehended after further chase during which he pointed his gun at pursuing policemen.

The distinguished Philadelphia County Common Pleas Court Judge Judith J. Jamison sentenced appellant to serve a term of imprisonment of from ten to twenty years on one of the bills that charged robbery of a participant in the craps game and to serve a consecutive term of imprisonment of from ten to twenty years upon the bill that charged robbery during the flight and escape. This latter sentence was subsequently, in response to an application by defendant for reconsideration of sentence, reduced to a term of from eight to sixteen years. The sentences imposed on other bills were either suspended or made concurrent and the total term of imprisonment of from eighteen to thirty-six years was to run concurrently with a federal sentence confronting appellant.

Appellant initially argues that the sentence was illegal and in support thereof he relies on the following statute:

§ 9757. Consecutive sentences of total confinement for multiple offenses.
Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.

It is the contention of appellant that this statute directs that his aggregate minimum sentence should not exceed one-half of the longest maximum sentence on any one count and he concludes that the correct sentence should have been ten to thirty-six years. We reject this contention. We are compelled to apply the “plain meaning” rule to this statute. See 1 Pa.C.S. § 1903; Commonwealth v. Mumma, 489 Pa. 547, 552, 414 A.2d 1026, 1029 (1980). The plain meaning of the statute is that the aggregate minimum sentence must not exceed one-half of the aggregate maximum sentence. See Blackwell v. Commonwealth, 36 Pa. Commw. 31, 387 A.2d 506 (1978). It is difficult to understand how any other meaning could be proposed.

The next challenge to the sentence is the contention that the sentencing judge failed to indicate the minimum sentence to be imposed for the total of all offenses. This observation is clearly incorrect. When Judge Jamison imposed the sentence on February 4, 1981, she specifically stated that the sentence was a minimum of twenty to forty years, (N.T. 2/4/81 at 20) and, in fact, appellant himself stated that the sentence was twenty to forty years (N.T. 2/4/81 at 26). The judge once again repeated the aggregate minimum and aggregate maximum on February 26, 1981, at the conclusion of the hearing upon the petition of appellant for reconsideration of sentence (N.T. 2/26/81 at 11). There simply is no basis for this assertion.

We next address the contention of appellant that it was error for the sentencing court to impose consecutive sentences for two robberies. Appellant bases this contention on his conclusion that there was only one robbery committed by appellant. It seems, however, that this is a misstatement since the record makes clear that the consecutive sentence was for a separate and distinct act of robbery by appellant during his flight with an accomplice from the earlier robberies. (N.T. 11/10/89 at 44-45; N.T. 2/4/81 at 20). The mere fact that the two robberies occurred in close proximity to each other did not preclude the imposition of consecutive sentences. Commonwealth v. Mayo, 273 Pa. Super. 383, 385, 417 A.2d 701, 702 (1980).

Ancillary to the thrust of the preceding argument is the contention of appellant that consecutive sentences should not be imposed on a defendant for two or more crimes. In support of this theory, appellant urges this court to adopt provisions of the Model Penal Code of the American Law Institute and provisions of the 1968 Approved Draft of the American Bar Association Standards for Sentencing Alternatives and Procedures in place of the following Pennsylvania statute which authorizes consecutive sentences:

§ 9721. Sentencing generally
(a) General Rule.—In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.

“The unambiguous language of [this section] empowers a sentencing court to fashion a sentence which includes one or more of five alternative punishments and permits these punishments to be imposed consecutively or concurrently.” Commonwealth v. Pierce, 497 Pa. 437, 440, 441 A.2d 1218, 1219 (1982). (footnote omitted). Where the relevant statute is so clear, and where the sentencing judge complied with the statute, it is vacuous to argue that the sentencing judge abused her discretion when she followed the Pennsylvania statute instead of alternate proposals for legislation.

An examination of the record reveals that the sentencing judge secured all of the pertinent information and reports, that she studied all of these materials, that there was full discussion among all concerned parties at each of the hearings and that the reasons for the sentences imposed are clear. We cannot accept the contention that the sentencing judge abused her discretion. See Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wiggins, 274 Pa.Super. 617, 418 A.2d 577 (1980); Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978).

Appellant next contends that the Common Pleas Court was obliged to conduct a hearing upon his application to withdraw his guilty plea. We disagree. The record reveals that appellant entered a guilty plea to various charges on November 10, 1980 and was sentenced on February 4, 1981. Appellant thereafter filed a motion for reconsideration of sentence and on February 26, 1981, a hearing was held and the sentence was reduced. The appeal to this court from the judgment of sentence was filed on March 3, 1981.

When appellant was sentenced on February 4, 1981, the court advised him, inter alia, of (1) his right to seek a reconsideration of sentence, (2) his right to seek to withdraw his guilty plea and (3) if he sought such relief from the Common Pleas Court but was unsuccessful, of his right to seek appellate relief. Appellant exercised his right to have the sentence reconsidered and, as a result, the court reduced the sentence twenty-two days after the original sentence had been imposed; but appellant failed to initiate any procedure to withdraw his guilty plea at the time that he exercised his right for sentence reconsideration, failed to engage in such an effort between the time that he sought reconsideration of sentence and the time that sentence was reduced and failed to undertake such an effort prior to the time that he lodged his appeal with this court on March 3, 1980.

The record reflects that on May 6, 1981, more than three months after sentence was imposed and appellant was advised of his appellate rights, and two months after appellant initiated his appeal to the Superior Court, the sentencing judge conducted a hearing to further advise appellant of his appeal rights. A pro se motion to withdraw the guilty plea was filed on May 13, 1981, but the hearing judge properly ruled that she was without jurisdiction to conduct a hearing on the motion since sole jurisdiction was in the Superior Court by reason of the appeal that had been undertaken to this court. See Pa.R.A.P., Rule 1701, 42 Pa.C.S.A.; Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982). The conscientious effort of the sentencing judge to scrupulously safeguard the rights of appellant cannot be considered as creating in appellant a substantive right to have the Common Pleas Court consider so tardy an application to withdraw a guilty plea.

It is apparent that appellant took his appeal to this court without first challenging the validity of the guilty plea in the Common Pleas Court. Pennsylvania Rule of Criminal Procedure 321, 42 Pa.C.S.A. prescribes the proper procedure for challenging a guilty plea and mandates that a petition to challenge- the guilty plea be filed with the trial court within ten days after sentencing. Thus, generally, the failure to so challenge the plea constitutes a waiver of the right to challenge the plea on direct appeal. In a case where a defendant has not first challenged the validity of the plea in the trial court, however, “we have refused to impose a waiver where it has not been shown on the record that the defendant was aware of the consequences of not filing post-verdict motions.” Commonwealth v. Reed, 488 Pa. 221, 224, 412 A.2d 477, 479 (1980) (emphasis in original). “[A] defendant cannot effectively waive his right to assail the validity of his guilty plea on direct appeal unless the record demonstrates that he knowingly and intelligently waived such right. In particular, the record must affirmatively establish that the defendant had been advised of his right to file a petition to withdraw his plea and the consequences of his failure to do so.” Commonwealth v. Crawford, 285 Pa.Super. 169, 185, 427 A.2d 166, 174 (1981).

We conclude (1) that appellant was aware both of his right to file a petition to withdraw his guilty plea and of the consequences of a failure to do so and (2) that he waived this right to challenge his guilty plea. The sentencing judge at the time of the imposition of sentence supplied to appellant the advice required by Rule 1405(c). It is true that the record reflects that while the sentencing court did advise appellant of the right to challenge the guilty plea and his right to appeal to this court, the court failed to state that a guilty plea challenge had to be initiated within ten days. Nonetheless, it was certainly made clear that in order to challenge the guilty plea on appeal, appellant had to first file a motion in the Common Pleas Court to challenge the validity of the guilty plea. We conclude that appellant was not misled by the failure of the sentencing judge to specify the ten day limitation upon any effort to withdraw the guilty plea for the reasons that (1) appellant full well realized that such an effort had to at least be undertaken prior to the time that he engaged in the appeal to this court and (2) appellant made no such effort to withdraw the plea until May 13, 1980, some ninty-nine days after sentence had been imposed and more than two months after the appeal to this court was taken. Thus, appellant has waived his right to challenge the validity of his plea on direct appeal.

While the posture of this appeal does not enable us to address the issue of whether appellant should be permitted to withdraw his guilty plea, we have, of course, undertaken a quite thorough study of the entire record so as to enable careful consideration of the assertions of appellant and it seems appropriate to observe that our study of this case does not reveal any basis upon which appellant should be permitted to withdraw his plea. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). The law of this Commonwealth is clear that:

When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, however, it is well-established that ‘a showing of prejudice on the order of manifest injustice,’ Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified. See also, Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979); Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978); Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977); American Bar Association Standards for Criminal Justice, Pleas of Guilty, Standard 14-2.1 (2d Ed. 1980). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence-testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594 (1973). If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.

Id., 498 Pa. at 346, 446 A.2d at 593.

It remains for the appellant to pursue Post Conviction Hearing Act proceedings for a determination of his claim that his guilty plea was invalid by reason of the ineffectiveness of his counsel. Counsel for appellant acknowledged as much when he noted during the discussion with the court on June 17, 1981, that any proceeding upon the motion of appellant to withdraw his guilty plea was “in effect an early PCHA hearing.”

Judgment of sentence affirmed.

      . Since the pertinent statute was enacted into law and is clear in expression and obvious in meaning, it would serve no purpose to review the claims of appellant that are based upon alternate proposals for legislation that have not been enacted.

      . Although at a June 17, 1981 hearing the judge refers to a pro se motion of May 13, 1981 which challenged the guilty plea, there is no evidence of such a motion in the record now before us.

      . At the June 17, 1981 hearing appellant was represented by counsel who had been appointed as appellate counsel.

      . Rule 321. Challenge to Guilty Plea
      (a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.
      (b) The motion shall be disposed of promptly.
      (c) The trial court may schedule a hearing on the motion and shall determine whether the motion shall be argued before one judge alone or before a panel of judges sitting as a court en banc. Whenever a single judge hears the motion alone, the judge may make any ruling that could be made by a court en banc.

      . Pennsylvania Rule of Criminal Procedure 1405(c), 42 Pa.C.S.A., provides, in pertinent part, that at the time of sentencing, the judge should advise the defendant on the record of the following:
      (1) of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided free counsel;
      (2) of the right to file motions challenging the propriety of the sentence (and, in the case of a plea of guilty, the validity of the plea or the denial of a motion to withdraw the plea);
      (3) of the ten (10) day time limit within which such motions must be filed;
      (4) that the defendant is entitled to be represented by counsel in preparing and litigating such motions; and
      (5) that only claims raised in this court may be raised on appeal.

      . It is to be noted that appellant proceeded in timely fashion to seek a reduction in sentence even though the sentencing judge did not specify the existence of a similar ten day limitation upon that effort.


text:
    458 A.2d 956
    DAILEY’S CHEVROLET, INC., now by change of name, Dailey Enterprises, Inc., and Dave Hallman Chevrolet, Inc. v. WORSTER REALTIES, INC., and Vincent Worster, Appellants.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed March 25, 1983.

      Robert C. Ward, Erie, for appellants.
    William C. Sennett, Erie, for appellees.
    Before CERCONE, President Judge, and BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case was initiated in the court below with the filing of a Bill in Equity in the Court of Common Pleas of Erie County, in which the plaintiffs, Dailey Chevrolet, Inc. (herein Dailey), and its lessee, Dave Hallman Chevrolet, Inc. (herein Hallman), alleged that the defendants, Worster Realties, Inc. and Vincent Worster (collectively referred to herein as Worster), were causing immediate and irreparable injury to them through the blocking of certain real property. The action complained of was the parking of four (4) semi-trailers by Worster along its property in such a manner as to block ingress and egress by Dailey-Hallman, to the various parcels of the Dailey-Hallman property. Following an initial hearing before the Honorable Lindley L. McClelland on the granting of a preliminary injunction, Worster agreed to “voluntarily” cease certain actions complained of “while the parties attempted to resolve their differences.” Settlement efforts failed and subsequently testimony was taken by deposition, and the testimony, exhibits and trial briefs were submitted to Judge McClelland for decision. Thereafter, the court entered an Adjudication and Opinion together with a Decree Nisi in favor of Dailey-Hallman. Worster then filed exceptions to the Conclusions of Law and Decree Nisi, and the matter was argued before the court en banc, consisting of Judges McClelland, William E. Pfadt and Richard L. Mygaard. The en banc court entered an Order dismissing Worster’s exceptions and directed that a Final Decree be entered in accordance with the Decree Nisi. Worster then filed this appeal from the en banc order of the court below. For the reasons which follow, we affirm.

Dailey is the owner of certain real property located in the City of Erie on the east side of State Street, bounded on the west by State Street, on the south by East 21st Street, on the east by French Street and on the north by railroad tracks of the N.Y.C. & St. L. Railroad also known as the Norfolk and Western Railroad Company, at East 19th Street. Assessment maps showing the property and identified as Exhibits “A” and “C” as attached to the original Bill in Equity in this case provide an excellent visual illustration:

From 1931 to 1974 Dailey operated a Chevrolet automobile and sales service agency on the property. The commercial complex occupied by Dailey was gradually expanded as more parcels (parcels 2-9 as shown on Exhibit “C”) were added from 1945 to 1965. The entire parcel was leased to Hallman by lease dated July 15, 1974. It continues to be operated as a Chevrolet sales and service agency by Hall-man. The 1974 lease from Dailey to Hallman contains the following specific description of the property included in the lease:

It is the intention of the parties hereto to include in this Lease all property owned by Dailey’s Chevrolet, Inc. and located in the City of Erie, Pennsylvania, on both the West and East sides of State Street, and bounded on the south by 21st Street, on the west by Peach Street, on the east by French Street and on the north by the N.Y.C. and St. L.R.R. tracks and right of way and being all of the property in the City of Erie currently utilized by Landlord in the conduct of its motor vehicle business.

The Worster (referred to in Exhibit “A”) property in question herein is a narrow strip of land running from the East 19th Street railroad tracks south to 21st Street, midway between State Street and French Street. The Worster strip of land bifurcates the Dailey-Hallman property. The Worster property is referred to in the brief filed by both sides as the “brewery-railroad” property because it is a narrow strip of land approximately 15 feet in width at its narrow portion which contains a railroad spur track line running south from the East 19th Street railroad tracks to the property formerly owned by Erie Brewing Company and now leased by Worster from the Erie County Industrial Development Authority, the record owner.

Worster acquired the brewery-railroad property as a part of the acquisition from Erie Brewing Company in 1979 of a larger piece of property immediately to the south of the Dailey-Hallman property, and separated therefrom by East 21st Street. Vincent Worster, president of Worster, testified that he was aware of the use of the brewery-railroad property by Hallman when he purchased the property in 1979. Mr. Worster stated that he discussed the use of brewery-railroad property by Dailey-Hallman with officials of Erie Brewing Company who stated “they had always allowed Dailey-Hallman to use the property.”

The Dailey-Hallman testimony indicated that Dailey had used or utilized the brewery-railroad property for ingress and egress, for access to later acquired property and buildings, for parking and other miscellaneous uses from prior to 1940 until 1974. Furthermore, Dailey witnesses testified to various improvements to the brewery-railroad property including installation of flood lights; repairs to a wooden ramp on the property; construction of a wooden ramp; construction of a fence; and asphalting of a portion of the premises at street level.

In 1963, Dailey and the Erie Brewery Company executed a lease of the brewery-railroad parcel providing for annual rental payments of $12.00 plus reversion of all leasehold improvements to the lessor at the expiration of the lease. The lease was duly executed by officials of Dailey and the Brewery and the annual rental payments continued at least until 1974, past the expiration date of the lease.

In February, 1980, Wórster parked four empty semi-trailers at various locations on the brewery-railroad property with the intent and effect of preventing the use of that property by Dailey-Hallman. Mr. Worster testified that the parking of the trailers so as to block Dailey-Hallman for ingress and egress to their property and buildings was done “to get Dailey Enterprises’ attention.” Mr. Worster was attempting to sell the brewery-railroad property to Dailey and admitted that he knew that the parking of the semitrailers would block access across the brewery-railroad property by Hallman.

On these facts the court below found an irrevocable license based on the permissive use granted to Dailey and the reliance placed upon that use in making improvements and purchasing other properties appurtenant to the brewery-railroad tract.

Worster contends that the court below erred in:

1) concluding that an irrevocable license had been established by Dailey-Hallman on the facts presented;
2) that even if an irrevocable license was proven, its legal effect was terminated by Dailey entering into a ten-year lease (beginning in 1963) of the same property;
3) assuming that the license was terminated by the lease, it could not be restored absent new action or money expended in reliance on it subsequent to the lease term, and
4) that even if the lease failed to terminate the license, Dailey’s subsequent lease of the properties to Hallman did not transfer its license to use the brewery-railroad property.

Our review on this appeal involves the following considerations:

Our scope of review in equity matters is a limited one. The chancellor’s finding of fact, affirmed by the court en banc, have the effect of a jury verdict and will not be reversed on appeal if adequate evidence is present to support them and they are not premised on erroneous inferences and deductions or an error of law. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976); Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 244 A.2d 22 (1968). Thus, our function is not to substitute our view for the chancellor’s but, rather, to determine whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor. Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978); Payne v. Kassab, 468 Pa. 226, 361 A.2d 263 (1976). Nevertheless, conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning for underlying facts and not involving a determination of credibility of witnesses, are reviewable. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); In Re Estate of Thomas, 463 Pa. 284, 344 A.2d 834 (1975)

Krosnar v. Schmidt Krosnar McNaughton, 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980)

Ordinarily a license is merely a “personal or revocable privilege to perform an act or series of acts on the land of another.” Hennebont Company v. Kroger Company, 221 Pa.Super. 65, 69, 289 A.2d 229, 331 (1972). However, in Pennsylvania, a license will become irrevocable if the licensee expends money or labor in reliance on the permitted use.

In Pierce v. Cleland, 133 Pa. 189, 197-98, 19 A. 352, 353 (1890), the Supreme Court stated that an irrevocable license, “while not strictly an easement, is in the nature of one. It is really a permission or license, express or implied, to use the property of another in a particular manner, or for a particular purpose. Where this permission has led the party to whom it has been given, to treat his own property in a way in which he would not otherwise have treated it, as by the erection or construction of permanent improvements thereon, it cannot be recalled to his detriment.” See also Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966); Thompson v. McElarney, 82 Pa. 174, (1876); Messinger v. Washington Township, 185 Pa.Super. 554, 137 A.2d 890 (1958).

Harkins v. Zamichieli, 266 Pa.Super. 401, 406, 405 A.2d 495, 498 (1979). The irrevocable license is premised upon equitable considerations in the application of the law of equitable' estoppel, and as an adjunct to this application, it is well settled “that successors-in title take subject to an irrevocable license if they had notice of the license before purchase.” Harkins v. Zamichieli, supra, 266 Pa.Superior at 407-408, 405 A.2d at 498; Leininger v. Goodman, 277 Pa. 75, 120 A. 772 (1923); Messinger v. Washington Township, supra.

The decision of the court below is adequately supported by Dailey witnesses who testified that in reliance on the uninterrupted right to use the brewery-railroad property for ingress and egress, Dailey purchased additional property adjacent to the brewery-railroad property, specifically parcels 2 through 9 as identified on Exhibit “C” to the Bill in Equity, supra. In continued reliance on the right to use the brewery-railroad property for access, ingress and egress, Dailey acquired parcel No. 2 in 1962 and performed extensive repairs and renovations thereto at a cost in excess of $100,000. Moreover, in continued reliance on the right to use the brewery-railroad property, Dailey acquired every parcel on French Street between the East 19th Street railroad tracks and East 21st Street, all of which property was geographically separated from the main Dailey property by the brewery-railroad property. A Dailey witness testified that the total cost of the acquisition, demolition, resurfacing and improvements to the French Street property was between $225,000 and $250,000. Also, improvements to the brewery-railroad property itself were made by Dailey as substantiated by testimony previously set forth in this opinion. Further, Mr. Worster, in his deposition testimony, stated that he was aware of Dailey’s use of the brewery-railroad property before he purchased it. He was told so by the Erie Brewing Company. On the basis of these facts we cannot say that the court below misapplied the law in finding an irrevocable license.

Additionally, we do not believe that the 1963 lease entered into between Dailey and the Erie Brewery Company terminated the previously established license. Worster argues that the lease superseded Dailey’s rights and that subsequent expenditures made in reliance on the use were necessary to reestablish the irrevocable license. However, it was not inconsistent or contrary to the rights held under the license for Dailey to enter into a lease. A lease generally entitles a lessee to more rights (such as exclusive possession, see Sparrow v. Airport Parking Co. of America, 221 Pa.Super. 32, 289 A.2d 87 (1972)) than held as a licensee and we believe that the lease, far from terminating Dailey’s irrevocable license, merely granted additional possessory powers to that which was already held. The license, which came into effect before 1963, was not extinguished.

Worster contends that Margolin v. Pennsylvania Railroad Company, 403 Pa. 195, 168 A.2d 320 (1961), supports his argument, i.e., that the lease terminated any irrevocable license held by Dailey. In Margolin, the appellants argued that they held an irrevocable license to a certain piece of property, which had been torn down and for which they were seeking damages, impliedly arrising from a written agreement. The Supreme Court rejected the appellants’ argument:

Appellants also contend that irrespective of the written agreement of 1901, they acquired the asserted right of an irrevocable or executed license by prescription. This is equally without merit. The undisputed facts belie the existence of such a right. In addition, these parties, or their predecessor in title, stipulated and defined their rights and obligations in a writing of their own making. The rights acquired are defined in the contract. Witman v. Stichter, 1930, 299 Pa. 484, 149 A. 725. It just cannot be ignored and treated as nonexistent. By its terms the parties involved are bound. The contract itself is completely inconsistent with the existencé of an irrevocable license by prescription and no matter how you evaluate this situation, any existing rights must basically and fundamentally be derived therefrom.

Margolin v. Pennsylvania Railroad Company, supra 403 Pa. at 199, 168 A.2d at 322. Worster’s argument is that Margolin requires us to say that the lease agreement defines Dailey’s rights.

This case, however, is distinguishable. In Margolin, the parties’ rights were created by contract and that contract served as the measuring stick to determine the bounds of those rights. The contractual parameters being set, there simply was just no room to infer from the circumstances of that case that an irrevocable license by prescription had been established. Since the right to use in Margolin was created by the contract, the subsequent permitted use pursuant thereto could not be characterized as prescriptive. In the instant case, Dailey’s permitted, continuous use of the property for 30 years prior to the lease agreement, with substantial reliance on that use in effectuating expenditures, firmly established their rights. We cannot discern either an express or implied destruction of Dailey’s previously held interests. Therefore, we cannot say that the lease in any way altered or extinguished Dailey’s rights to use the brewery-line railroad property in the manner shown.

Further, the fact that Dailey is leasing this property to Hallman does not affect the right-of-way. Dailey still owns the property which is being operated for the same business and in substantially the same manner as under Dailey Chevrolet. Under such circumstances, Worster is estopped to deny the existence of the license and its use by Hallman pursuant to the leasing arrangement entered into with Dailey.

Affirmed.

      . It is interesting to note here that Worster purchased the property with full notice that Dailey-Hallman were "always allowed” to use the right-of-way by the previous owner and lacked any knowledge concerning the lease.
      Q. (Mr. Dunn) Now prior to purchasing this property, did you become familiar with the use of the railroad track portion of the property you bought?
      A. (Mr. Worster) Yes I did.
      Q. And did you make an inquiry as to that use?
      A. I made an inquiry of the realtor as to whether the property was leased or was not leased, or if it was being used as a matter of courtesy.

        Q. Did you also make an inquiry from your counsel in buying the property as to the status of its title?
      A. Yes, I inquired from you, you know, if there was a clear title, and the answer was, "Yes, there was.” There were no leases on record. (Emphasis added)
      Q. When did you become aware of the fact that the railroad property was a part of the Brewery Property?
      A. From the time that we started to leave the building, because we had a right of first refusal in our lease, in October of ’78.
      Q. So you knew, then, from October of ’78, when you first started occupying the building, that the railroad property, which is north from East 21st Street, was a part of the Brewery Property.
      A. That is correct sir.
      Q. And did you inspect the railroad property at all?
      A. I walked across it, sir.
      Q. So you were aware of the use by Hallman Chevrolet at that time?
      A. That is correct sir.
      Q. And were you aware of the existence, at that time, of the paved crossing across the railroad?
      A. Yes sir
      Q. Did you make any inquiry at Hallman Chevrolet about that use?
      A. No. I did not, sir.
      Q. Did you make any inquiry from Dailey, either Mr. Dailey or Dailey Enterprises, concerning their use of that property?
      A. No I did not.
      Q. Did you inquire of the officials of the brewery concerning the use of the property by Hallman or Dailey?
      A. Yes I did, sir.
      Q. And of whom did you inquire?
      A. It would either have been Cliff Magenau (phonetic) or the president of the Erie Brewing, which—
      MR. DUNN: It would be Mark Magenau or Cliff Bracken.
      A. Okay, I’m sorry. That’s correct.
      Q. So you inquired of either Mr. Magenau or Mr. Bracken concerning that use by Hallman and/or Dailey?
      A. Yes sir.
      Q. And what did they tell you?

        A. That they had always allowed them to use the property because the only use they had for the property was to get an occasional railroad car in and out and that the Chevrolet Agency had always been very cooperative in moving cars so the railroad trains could pass over it.

      Q. Did they indicate to you for how long the Chevrolet Agency had used the property?
      A. No sir.
      Q. Did you know how long the Chevrolet Agency had been in existence at that location?
      A. Not in specific number of years, no sir.
      Q. You did know, did you not, that it had been there over a long period of time? ,,

        A. Yes sir.
      (Emphasis added)
      (Tr. June 13, 1980, pp. 4, 5, 16-18)


author: CAVANAUGH, Judge:

text:
    458 A.2d 962
    Rose KELLY, Appellant, v. Robert J. DORAN and Mary G. Doran, his wife and Charles Dorkey, Trading as Charles E. Dorkey, Jr., Realtor.
    Superior Court of Pennsylvania.
    Argued June 8, 1982.
    Filed March 31, 1983.

      Donald B. Pritchard, Jr., Norristown, for appellant.
    Lawrence F. Flick, Norristown, for appellees.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   CAVANAUGH, Judge:

In this case the appellant, Rose Kelly, signed an agreement of sale dated June 4, 1978, under which she was to purchase a house located in Ardmore, Montgomery County, Pennsylvania, for the price of $52,000. Settlement was to be held on or before July 12, 1978. Unfortunately, the appellant was unable to obtain a mortgage and the sale was not completed. The sellers, the appellees herein, Mr. and Mrs. Robert J. Doran, refused to return the appellant’s deposit of $5,200 and she commenced an action in assumpsit. A hearing was held before a board of arbitrators and the appellant was awarded $5,746. The assumpsit action was commenced not only against the appellees but also against their real estate agent, Charles E. Dorkey, Jr.. The action against Mr. Dorkey was settled after payment of the deposit monies plus interest into court. Mr. and Mrs. Doran appealed to the court of common pleas from the award of arbitrators and the matter was heard before Stanziani, J. and a jury. Following the close of the appellant’s case, the court below granted the appellees’ motion for compulsory non-suit. The appellant’s motions to take off the non-suit and for a new trial were denied and she has appealed to this Court.

The law with reference to the entry of a compulsory non-suit is clear. “In reviewing the entry of a compulsory non-suit, it is well established that the non-moving party is entitled to a favorable view of the evidence and all reasonable inferences arising therefrom. That party is to receive the beneficial resolution of any conflicts which may exist in the evidence and a non-suit should be awarded only in clear cases.” Brennan v. Reed, Smith, Shaw & McClay, 304 Pa.Super. 399, 450 A.2d 740, 741, 742 (1982). When a compulsory non-suit is entered the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. See West Mountain Poultry Company v. Gress, 309 Pa.Super. 361, 455 A.2d 651 (1982). Reviewing the evidence in the light most favorable to the appellant the following facts develop. On June 4, 1978, the appellant, Rose Kelly, entered a written agreement of sale with Mr. and Mrs. Robert J. Doran, for the purchase of a house located in Lower Merion Township, Montgomery County, for the price of $52,000. The real estate agent for the appellees was Charles E. Dorkey, Jr. The agreement of sale contained a mortgage contingency clause under which the sale was subject to the appellant obtaining a mortgage in the amount of $46,800. The mortgage contingency clause stated, inter alia:

2. Should Buyer be unable to obtain a written commitment for a mortgage loan on the terms set forth above, Buyer shall advise Seller or his agent, hereafter referred to as Seller in writing by registered or certified mail (return receipt requested) on or before June 30, 1978 of such condition.
3. If Buyer fails to make application for such mortgage loan or to notify Seller of his inability to obtain a written commitment as herein set forth, or fails to execute any application for such mortgage loan at Seller’s request, the condition and contingency provided for shall no longer prevail and this Agreement shall be and remain in full force and effect according to its terms in the same manner as if the condition and contingency were not a part hereof.

The agreement of sale provided for the return of the appellant’s deposit money in the event a mortgage could not be obtained, subject to the condition in the agreement of sale set forth above.

The appellant made a timely application for a mortgage with the Commonwealth Federal Savings and Loan Association. During the week of June 26, 1978, Mr. Dorkey called the Commonwealth Federal to determine the status of the mortgage application. He was advised that some of the papers needed to complete the application had not been received. This caused him concern because the settlement date of July 12, 1978, was rapidly approaching and the mortgage was necessary to complete settlement. Mr. Dorkey testified that he was not concerned that the appellant’s mortgage would be rejected, but he was anxious that all the papers be submitted. In late June, 1978, Mr. Dorkey telephoned the appellant and told her not to worry and that everything had been taken care of. He told her, however, that the mortgage definitely wouldn’t be through by the end of June but that “he had notified the sellers and they knew that she wouldn’t have the mortgage by the end of June, but that they were still trying to have settlement ... by July 12, 1978.” He also asked the appellant if she was interested in some drapes and a refrigerator that were in the house and she told him that she was not.

In early July Mr. Dorkey was still working on obtaining the mortgage from Commonwealth Federal Savings and Loan. He called the appellant on July 7, 1978, and told her that there was a “little problem” with the mortgage and most likely it wouldn’t be through by July 12th, and that the appellant would be given a two week extension in which to hold settlement. During the week of July 11, 1978, Mr. Dorkey made at least two telephone calls to the Commonwealth Federal to see if the mortgage committee had approved the appellant’s mortgage. On July 17, 1978 the Commonwealth Federal advised Mr. Dorkey that the Committee had rejected the mortgage. He notified the appellees that the mortgage application had been rejected and in a further attempt to save the sale he called the Mainline Federal Savings and Loan Association but was unable to obtain a mortgage.

Between July 7, 1978 and July 17, 1978 appellant could not reach Mr. Dorkey to discuss the situation with him. On July 17, 1978, he telephoned her and told her that the mortgage application was turned down because of false information which she put on the mortgage application. Appellant then called Mrs. Doran to request that her deposit be returned and she was told by Mrs. Doran that it would not because the appellant lied. On August 2, 1978 the appellant sent a certified letter to the appellees advising them that she could not obtain the mortgage. When the appellees refused to return the deposit money the instant action was commenced.

With respect to the alleged misinformation on the mortgage application the appellant was able to explain the statements she made and ultimately her mortgage application was rejected for insufficient income.

There is no doubt that the appellant did not notify the appellees or their agent by registered or certified mail on or before June 30, 1978, that she could not obtain the mortgage. The issue before the court below was whether there was a waiver of this requirement in the circumstances of this case where the sellers and their agent knew by June 30, 1978 that as of that date she had not obtained the mortgage and yet gave every indication that the settlement would still be held and that there was no real problem. Further, appellees’ agent gave the appellant a two week extension in which to hold settlement in order to give her additional time to obtain the mortgage. As of June 30, 1978, there was obviously no desire on the part of the appellees’ agent to have the appellant notify the appellees in writing that she could not obtain the mortgage. All parties, including the appellant, the appellees and the appellees’ real estate agent were most desirous of not having the sale fall through. The appellees’ agent was still working towards obtaining the mortgage approval and even went to the Mainline Federal in an unsuccessful attempt to obtain a mortgage.

The appellant was not familiar with agreements of sale although certainly Mr. Dorkey, appellees’ agent, was. Although all parties knew by June 30, 1978, that appellant could not obtain a mortgage by that date, the appellees’ real estate agent called the appellant and told her that the appellees were still striving for a July 12th settlement. Appellant could reasonably assume that she was not being led into legal quicksand which would place her in the dilemma of (1) notifying the sellers by June 30, 1978 in writing and by certified mail that she had not obtained the mortgage which they already knew and thereby terminating the sale, or (2) going beyond the June 30, 1978 date in an attempt to obtain the mortgage and complete settlement by July 12th, and thereby losing her deposit of $5,400 if she could not obtain the mortgage. Of course, this choice was not presented to the appellant and it was for the jury to determine in the circumstances whether the appellees by their conduct and that of their real estate agent waived the requirement of written notice by June 30, 1978.

The court below in its opinion correctly stated the law that judgment of non-suit may be granted only in clear cases. The court went on to state that “false information submitted on the mortgage application led to a failure to obtain a mortgage by June 30” and that therefore the appellant should have given written notice by June 30, 1978. However, the appellant explained the statements that she made in the mortgage application and it was for the jury to determine if strict compliance with the terms of the contract had been waived. There were factual questions raised and “a compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.” Paul v. Hess Brothers, Inc., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973). In this case we cannot say without any doubt that there is no alternative except the literal enforcement of the harsh forfeiture provisions set forth in the agreement of sale.

Order reversed and compulsory non-suit removed. A new trial is granted to the appellant.

      . With respect to seeking a mortgage from Mainline Federal, Mr. Dorkey testified as follows:
      A. Right. It was important—it was important for all parties that the settlement take place, really. Mrs. Kelly needed a house and the Dorans needed to sell their house, and if there was some way that something could be salvaged out of it, it’s to the best interests of all parties.

      . Appellant testified that when she called Mrs. Doran, she asked her why the sellers would not return her deposit money. Appellant’s testimony was: "she said because you lied, and slammed the phone in my ear.”
      It was not until later that the appellees raised the issue of noncompliance with the mortgage contingency clause. As stated in Warner Company v. MacMullen, 381 Pa. 22, 28, 112 A.2d 74, 77, 78 (1955):
      It is a firmly established principle, founded on the doctrine of equitable estoppel, that a refusal to perform the obligations of a contract on the ground of a specific breach assigned as the reason for such refusal, constitutes a waiver of all other breaches then known to him;1 where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his mind, to the detriment and disadvantage of the other party, and seek to justify his action by advancing some other reason.


author: WICKERSHAM, Judge:

text:
    458 A.2d 966
    COMMONWEALTH of Pennsylvania v. Anthony MENGINIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 22, 1982.
    Filed March 31, 1983.
    Petition for Allowance of Appeal Denied July 22, 1983.

      Stephen H. Serota, Philadelphia, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WICKERSHAM, Judge:

This appeal arises from Anthony Menginie’s challenge to his conviction on several counts of receiving stolen property and various other offenses. Specifically, Menginie was charged with receiving stolen property, possessing instruments of crime, tampering with records, dealing in vehicles with removed or falsified identification numbers, and removing or falsifying vehicle identification numbers, as well as drug related offenses. Before trial, Menginie’s counsel filed an omnibus motion pursuant to Rule 306 of the Pennsylvania Rules of Criminal Procedure.

The omnibus motion sought the suppression of physical evidence and any statements made by Anthony Menginie. After a hearing, the Honorable R. Barclay Surrick granted the motion to suppress a statement Menginie made but denied the motion to suppress physical evidence. The case was tried before the Honorable Henry Y. Scheirer and a jury; Menginie was convicted of the theft related offenses with which he had been charged, but was acquitted of the drug charges.

Post-trial motions for a new trial and in arrest of judgment were filed, alleging several errors in the suppression hearing and at trial. The court denied the post-trial motions and sentenced Menginie to an aggregate term of imprisonment of from two to five years as well as payment of a fine and restitution. This appeal timely followed.

On March 30, 1979 officers from the Upper Darby Police Department responded to a reported shooting at 214 North Linden Avenue, Upper Darby. Anthony Menginie was found bleeding on the lawn of a house several door's away from 214 North Linden Avenue. Menginie told the police that he had been shot by his brother Russell Menginie and that Russell was in the house at 214 North Linden.

When the police entered the house they saw Russell Menginie slumped against the wall in an upstairs hallway, with a handgun at his side. Unaware at the time that Russell Menginie had died from a self-inflicted gunshot wound, a police officer kicked the gun away from Russell Menginie. The gun landed in a bedroom and the officers entered the bedroom to secure the gun.

Once inside the bedroom the officers saw a scale and containers holding a white substance.. The officers on the scene called for assistance from one Officer Ceceóla, a narcotics officer of the Upper Darby Police Department. Officer Ceceóla suspected that the white powder was either methamphetamine or cocaine and obtained a search warrant. This warrant authorized a search of the premises for drugs, drug paraphenalia and other evidence indicating that 214 North Linden Avenue was used to distribute drugs.

As they executed the first warrant the police discovered numerous motorcycles and motorcycle parts. They also found an improperly removed serial number plate from a Harley-Davidson motorcycle, an open certificate of title for a Harley-Davidson motorcycle and a notary public seal issued to an unknown person who did not live at 214 North Linden. The Upper Darby police concluded that the premises were also the site of a motorcycle “chop shop” and called in the Pennsylvania State Police. State police troopers agreed that they had found a chop shop and obtained another warrant. The second warrant authorized a search of the premises for stolen motorcycles and motorcycle parts, tools used to remove vehicle identification numbers and documents relating to traffic in stolen motorcycles.

While executing the first search warrant, the local police also found a home safe. The police obtained a search warrant for the safe and discovered nearly $18,000 in cash in the safe. Menginie was tried, convicted and sentenced; this appeal followed.

Menginie’s first issue is:

Was the initial search warrant vitiated due to material misstatements in the probable cause section?

Menginie believes that two errors in the first search warrant required suppression of all evidence seized under the warrant. The probable cause section of the warrant states that two bodies were found inside 214 North Linden Avenue and that the search was conducted at 10:20 P.M. In fact, only one body was found in the house and the warrant was issued at 10:47 P.M. Menginie argues: “The only logical explanation for the misplaced body ... would be to provide adequate probable cause for [the police] to enter the front bedroom in case his “on sides kick” of the gun into the bedroom was rejected as a basis for probable cause to enter the front room and discover its contents.” Brief for Appellant at 1-2.

Menginie has waived this issue. In Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979) the appellant claimed that a search warrant used to obtain hair, blood and fingernail scrapings from him was invalid because factual assertions made in the warrant were patently false. The supreme court held that Stickle “made no effort in his pretrial “Motion to Suppress” to apprise the suppression court of specific factual falsities contained in the warrant and, therefore, has not preserved this issue.” Id., 484 Pa. at 97, 398 A.2d at 961. Similarly, Menginie’s omnibus pretrial motion did not apprise the suppression court of the specific factual falsities he now argues invalidate the first search warrant. Thus, under the authority of Stickle, supra, Menginie has not preserved this issue for review.

Yet even if Menginie’s motion had properly preserved his claim he would not be entitled to relief because of errors in the warrant. Contrary to appellant’s above quoted assertion there is another explanation for the error in the affidavit. One of the police officers who swore out the warrant testified at the suppression hearing and indicated that the affidavit’s mention of two bodies was an error. The suppression court was, of course, free to accept the police officer’s explanation that the statement about two bodies was simply a mistake.

Further, the mere presence of an error in the probable cause affidavit does not invalidate a search warrant. As this court said in Commonwealth v. Zimmerman, 282 Pa.Super. 286, 295-96, 422 A.2d 1119, 1124 (1980) (citations omitted):

In order to secure a valid search warrant, an affiant must provide a magistrate with information sufficient to persuade a reasonable person that there is probable cause for a search. The information must give the magistrate the opportunity to know and weigh the facts and to determine objectively whether there is a need to invade a person’s privacy to enforce the law. In [Commonwealth v.]D’Angelo [437 Pa. 331, 263 A.2d 441 (1970)], the court held invalid a search warrant based upon the affiant’s misstatement of a fact. Later cases have held, however, that misstatements of fact will invalidate a search warrant and require suppression of the fruits of the search only if the misstatements of fact are deliberate and material. A material fact is one without which probable cause to search would not exist.

In this case the presence or absence of an additional body inside the house was not a material fact. After their initial lawful entry to 214 North Linden the police were entitled to retrieve Russell Menginie’s weapon from the room where it landed; once the police saw substances which appeared to be drugs in that room they had probable cause to support issuance of a search warrant for drugs irrespective of how many bodies were in the house.

Menginie’s second issue is:

Was there a reasonable justification for the issuance of a nighttime search warrant?

Menginie asserts that the first search warrant was issued at 10:47 P.M. and argues that the police officers did not satisfy the requirements for a nighttime search. The Pennsylvania Rules of Criminal Procedure prohibit a nighttime search unless the affidavits show reasonable cause for a nighttime search. Pa.R.Crim.P. 2003(c). The affidavits supporting this search warrant stated that other persons had access to the house at 214 North Linden; Menginie argues that this statement does not satisfy the “reasonable cause” requirement of Pa.R.Crim.P. 2003(c).

Menginie’s failure to present a proper suppression motion has resulted in a waiver of this issue as well. The only portion of Menginie’s suppression motion which even arguably raises the issue of an improper nighttime search is found at part 11(c) of the motion. Part 11(c) of the suppression motion stated: “An illegal search was conducted of premises 214 Linden Ave., Darby, Pennsylvania, at which time alleged contraband was observed and later confiscated.” This conclusory statement does not satisfy the requirements of Pa.R.Crim.P. 323(d), which provides: “The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.”

The instant motion clearly does not state with specificity and particularity the grounds for suppression or describe the facts and events underlying the grounds for suppression. We agree with the view expressed by Justice Larsen in his plurality opinion in Commonwealth v. Dobson, 486 Pa. 299, 304, 405 A.2d 910, 913 (1979):

At a minimum, the ‘specificity’ and ‘particularity’ demands of Rule 323(d) required that, in order to have preserved the issue of the admissibility of the physical evidence, appellant would have had to have set forth in his motion, and have, argued at the hearing, the fact that a seizure of the evidence had occurred pursuant to a search warrant and the grounds now asserted that the seizure was invalid because probable cause for the warrant had been solely on illegally obtained statements. See Commonwealth v. Baylis [477 Pa. 472, 384 A.2d 1185 (1978)], supra (post-McCutchen case where appellant, who failed to move to suppress on the grounds that he was a minor and was not accompanied by parents or a guardian, was held to have waived this claim even though validity of statement was raised generally); Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978) (appellant challenged validity of Miranda waiver, but not on specific grounds that he should have been rewarned of his Miranda rights periodically; this issue held waived).

In this case, then, Menginie should have set forth in his motion the fact that a seizure of evidence had occurred pursuant to a search warrant and the grounds now asserted that the seizure was invalid because the requirements for the issuance of a nighttime search warrant were not met.

In any event, this issue was meritless. As this court stated in Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980) the affidavit for a nighttime search warrant must show both probable cause and some reason why the search cannot wait until morning. Id., 279 Pa.Superior at 292, 420 A.2d at 1340. The affidavit here showed probable cause to search the house for drugs and gave an excellent reason why the search could not wait until morning. When other persons have access to a house containing readily moveable evidence such as drugs there is reasonable cause not to delay a search. See e.g., Commonwealth v. Prokopchak, supra, 279 Pa.Superior at 292-93, 420 A.2d at 1339-40.

Moreover, the evil Pa.R.Crim.P. 2003(c) was designed to prevent was not present in this case. The comment to rule 2003(c) provides: “The requirement of a showing of reasonable cause for a nighttime search highlights the traditional doctrine that nighttime intrusion into a citizen’s privacy requires greater justification than an intrusion during normal business hours.” The privacy of the citizen in his home at night was not violated in this case, for the only surviving resident of 214 North Linden, Anthony Menginie, was in the hospital and not at home.

Menginie’s third issue is:

Whether the testimony of Police witnesses was so incredulous as to vitiated [sic] findings of probable cause which sustained various searches and seizures?

Menginie argues that at both the suppression hearing and the trial the Commonwealth’s witnesses gave testimony that “contained more convenient coincidence than can be believed.” Brief for Appellant at 6. This argument is meritless; it is for the suppression court and trier of fact to determine the credibility of witnesses.

Menginie’s fourth issue is:

Did the search warrants unconstitutionally condone an exploratory search of the entire house and adjacent building?

Menginie asserts that because Pa.R.Crim.P. 2005 requires that a search warrant shall name or describe with particularity the place to be searched, the warrant authorizing a search of 214 North Linden and its garage allowed an exploratory search. Again, this argument has no merit. The police had probable cause to believe that the premises at 214 North Linden were being used in drug trafficking. The warrant in issue describes the place to be searched with sufficient particularity to satisfy Pa.R.Crim.P. 2005.

Menginie’s fifth issue is:

Should items seized by Officer Ceceóla have been suppressed due to his failure to secure a warrant prior to conducting his search?

Menginie contends that after the police officers first saw drugs in the bedroom they had to obtain a warrant before calling for the assistance of Officer Ceceóla, the narcotics officer. Therefore, all evidence seized pursuant to the warrant obtained by Officer Ceceóla should have been suppressed.

The Upper Darby police officers who responded to the report of a shooting were legitimately in Menginie’s house; they discovered substances they took to be drugs in plain view. The police did not have to obtain a warrant before requesting the help of an officer expert in drugs. Officer Ceceóla merely confirmed that the substances in plain sight were illicit drugs and then sought a search warrant.

Menginie’s sixth issue is:

Should motorcycle parts and related items seized by State Police have been suppressed for the failure to secure a warrant prior to instituting a search?

The reasoning supporting this argument is similar to that advanced under Menginie’s fifth issue. The motorcycle parts were discovered by the police as they executed the first search warrant, which allowed them to search for drugs. After the local police found large numbers of motorcycle parts they called in officers of the state police. The state police then obtained another warrant and conducted a further search. Menginie contends that the state police should have obtained a warrant before they inspected the discoveries of the local police.

We reject this argument. The local police found motorcycle parts while they were conducting a valid search pursuant to a warrant. Surely they did not have to obtain another warrant merely to ask the assistance of the state police in their investigation. When it became apparent to the state police that there was criminal trade in motorcycle parts they properly obtained a warrant to seek evidence of the illicit activity.

Menginie’s final issue is:

Should seizure of a safe from the premises been suppressed due to the overly hard nature of the warrant and due to lack of probable cause?

As the Upper Darby police searched 214 North Linden Avenue they found, and seized, a safe. A warrant was obtained before the safe was opened. Menginie again argues that the requirement of our Rules of Criminal Procedure for a particular description of the place to be searched was violated. It was reasonable for the police to get a warrant before searching the safe, because they had probable cause to believe that drugs or money or both were in the safe. The warrant was supported by probable cause and satisfied the particularity requirements of the rules. Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . Menginie’s entire suppression motion was:
      OMNIBUS MOTION
      Petitioner Anthony Menginie, by his Attorney, Stephen H. Scrota, Esquire, seeks the following relief under Rule 306 of the Pennsylvania Rules of Criminal Procedure.
      (I) Suppression of Evidence
      (a) Physical evidence illegally and wrongfully obtained.
      (b) Statements of defendant (if any)
      (II) The evidence was obtained in violation of the constitutional rights of the defendant in that:
      (a) Defendant’s arrest was illegal
      (b) He was arrested without probable cause.
      (c) An illegal search was conducted of premises 214 Linden Ave. Darby, Pennsylvania at which time alleged contraband was observed and later confiscated.
      (d) Assuming arguendo that the search was not illegal, motorcycles, motorcycle parts, tools, equipment etc. confiscated were not apparently contraband on its face and should not have been confiscated.
      (e) Defendant’s statement was the product of physical or psychological coercion.
      (f) Questioning of the defendant was not preceded by adequate warnings.

      . After Menginie’s conviction, but before sentencing, he petitioned the court seeking a return of property allegedly belonging to Menginie. The petition was denied and an appeal was taken to this court. See Commonwealth v. Menginie, 312 Pa.Super. 293, 458 A.2d 966 (1983). The appeal from the order denying Menginie’s petition for the return of property was not consolidated with the present appeal from the judgment of sentence.

      . In the interests of brevity we here point out that this analysis applies equally to Menginie’s remaining issues. We discuss the merits of the rest of his contentions only to indicate that Menginie would not have been entitled to relief even if his contentions had been properly set forth in a suppression motion and thus preserved for appellate review.


text:
    458 A.2d 972
    Rochelle Levin HOVAV, Appellant, v. Yerucham HOVAV.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1982.
    Filed March 31, 1983.
    Petition for Allowance of Appeal Denied Aug. 1, 1983.

      Michael J. Rotko, Philadelphia, for appellant.
    Bruce L. Goldenberg, Norristown, for appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   WICKERSHAM, Judge:

This case arises out of a custody dispute between Rochelle Levin Hovav and Yerucham Hovav, who are the parents of two minor children. On November 23, 1981, Rochelle Hovav filed a complaint in divorce against Yerucham Hovav in the Montgomery County Court of Common Pleas. The divorce complaint contained a petition for custody of the couple’s children. A custody hearing was scheduled before the Honorable Horace A. Davenport on August 18, 1982.

Both Rochelle and Yerucham Hovav were present at the hearing and were represented by counsel. Judge Davenport took no testimony at the hearing but decided, on the basis of the Uniform Child Custody Jurisdiction Act, that his court was without jurisdiction to hear the case. This appeal was taken; appellate briefing and argument followed on an expedited basis.

Rochelle Levin left her home in Pennsylvania and went to Israel. While in that country she met Yerucham Hovav, and the two were married on May 25, 1975. Rochelle and Yerucham Hovav had two children: Adam, a son born on September 23, 1976 and Adi, a daughter born on February 2, 1979. The family lived on Kibbutz Negbe.

Relations between husband and wife deteriorated and the couple separated, although both remained on the kibbutz. Rochelle Hovav wanted to return to the United States so the children could visit with their maternal grandparents. As part of the arrangements for this visit Rochelle and Yerucham Hovav signed an agreement which provided, inter alia, that Rochelle Hovav would not begin divorce proceedings in thé United States, that the children would be returned to Israel and that custody of the children would be decided by an Israeli court.

Within several weeks, of her return to Pennsylvania, Rochelle Hovav began divorce and custody proceedings. Yerucham Hovav sought a determination of the custody issue in Israel. At a custody hearing the Israeli court heard testimony from Yerucham Hovav, the children’s paternal grandfather, a kibbutz official, and the children’s kindergarten teachers. Custody of the children was given to Yerucham Hovav.

Rochelle Hovav’s first issue is:

Whether the lower court’s refusal to hear testimony on the merits of Appellant’s custody petition resulted in an insufficient record thus precluding review by this Court?

Brief for Appellant at 3.

Rochelle Hovav states that this court’s review of custody decisions is of the broadest type and that to facilitate this review a hearing judge must conduct an extensive inquiry and support his decision by a full discussion of the evidence. Here, the lower court took no testimony on the merits of the mother’s custody petition; Rochelle Hovav contends that the lower court’s decision must therefore be reversed and remanded for further proceedings.

It is of course true that there can be no effective review of the merits of a lower court’s custody determination without a complete record and a comprehensive opinion from the lower court. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). Yet in this case, the lower court’s decision went not to the merits of Rochelle Hovav’s petition, but rather to its jurisdiction to hear the petition at all. The UCCJA provides that where the existence or exercise of jurisdiction is questioned, the case shall be handled expeditiously. 42 Pa.C.S. § 5366. Accordingly, the lower court correctly decided the jurisdiction issue before examining the merits of the case. There was enough information before the lower court to enable it to decide the question and it is not necessary to remand for further proceedings on this issue.

Rochelle Hovav’s second issue is:

Whether, in a child custody case, it was proper for the lower court to refuse jurisdiction without considering the best interests of the children?

Brief for Appellant at 3.

Rochelle Hovav believes it was error for the lower court to decide a question of jurisdiction without reference to the best interests of her children, Adam and Adi. The question before the court was not, however, who should have custody of the children but whether the court had jurisdiction over the custody dispute. Both the UCCJA and Pennsylvania case law support the decision of the court below to decline to exercise jurisdiction.

The Act provides that:

The general policies of this subchapter extend to the international area. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

42 Pa.C.S. § 5365. See also, Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982).

Here, the lower court had before it a custody decree issued by an Israeli court. The Israeli decree states, and Rochelle Hovav does not deny, that she had reasonable notice of and an opportunity to be heard at the Israeli proceedings, an opportunity she did not avail herself of. Even though Rochelle Hovav did not appear in the Israeli court, the foreign court’s decision was not conditioned on her mere absence. The Israeli court heard testimony from witnesses who knew the children and made its decision to further the best interests of the children. Therefore, under 42 Pa.C.S. § 5365 and § 5354, the lower court properly refused to exercise jurisdiction over this case.

Case law interpreting the UCCJA and applying the Act to international custody disputes is in accord with refusal to take jurisdiction. In Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (1980), our supreme court held that under the UCCJA our courts must recognize valid custody decrees from foreign nations, absent a showing (based on evidence not previously considered) that conditions in the custodial household are physically or emotionally harmful to the children. Id., 492 Pa. at 185-86, 423 A.2d at 334. See also, Commonwealth ex rel. Piggins v. Kifer, 285 Pa.Super. 206, 427 A.2d 185 (1981). Here, of course, because the mother has physical custody of the two children, it is unlikely that she would argue that the custodial household is harmful to Adam and Adi. The mother did not even allege in her custody petition that the father’s custody would be harmful to the children. Without even a bare allegation that Yerucham Hovav’s custody would be harmful to Adam and Adi the trial court correctly refused jurisdiction.

Rochelle Hovav’s third issue is:

Whether, the lower court failed to apply the provisions of the Uniform Child Custody Jurisdiction Act which would have lead to its assumption of jurisdiction in this matter.

Brief for Appellant at 3.

Rochelle Hovav argues that the lower court should have assumed jurisdiction under 42 Pa.C.S. § 5344. That section of the Act provides that a court has jurisdiction over a child custody dispute if,

(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with the Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;

Under this section of the Act a court cannot assume jurisdiction unless the child and at least one contestant have a significant connection with the Commonwealth and there is available in Pennsylvania substantial evidence concerning present or future care of the child. Unless these requirements are satisfied there is no authority for a court to take jurisdiction under 42 Pa.C.S. § 5344.

In this case, the requirement that the child and one contestant have a significant connection with Pennsylvania was not satisfied. Rochelle Hovav, who is now a resident of this state, has a significant connection with the Commonwealth. Yet the children, Adam and Adi, do not have such a connection. The two children were born in Israel and have spent most of their lives in that country. Were it not for Rochelle Hovav’s decision to keep the children in this state instead of returning them to Israel, the factor connecting the children to Pennsylvania would have been their brief visit with their maternal grandparents. Because of the tenuous connection between this Commonwealth and the Hovav children, the jurisdictional test established by 42 Pa.C.S. § 5344(a)(2)(i) was not met.

Despite her failure to satisfy even the first part of the jurisdictional requirements of the Act, Rochelle Hovav argues that the court below erred by not taking testimony as to whether substantial evidence concerning the present or future care of the children was available in this state. We reject this contention. The jurisdictional requirements of the statute, found at 42 Pa.C.S. § 5344(a)(2)(i) and (ii) are conjunctive; there must be a significant connection between the child and one contestant and this Commonwealth and substantial evidence concerning the children’s care must be available in this Commonwealth. There was no error in the lower court’s decision not to take testimony as to the availability of evidence concerning the children’s current care.

Rochelle Hovav’s fourth issue is:

Whether the lower court erred in affirming the Israeli Court’s jurisdiction based upon an agreement between the parties which of questionable validity.

Brief for Appellant at 3.

Rochelle Hovav argues that “[t]he lower court cannot summarily confer jurisdiction upon the Israeli court on the basis of a parental agreement where no testimony was allowed as to the agreement’s validity.” Brief for Appellant at 17. As Rochelle Hovav concedes, the agreement between Rochelle and Yerucham Hovav is part of the record in this case, nevertheless, Rochelle Hovav asserts that she signed the agreement under duress.

It is true that the lower court opinion (which was not available when briefs were prepared under an expedited schedule) refers to the agreement between Rochelle and Yerucham Hovav. Yet the lower court based its decision not on the agreement, but upon its interpretation of the Act, Pennsylvania case law and the existence of an Israeli custody order. There was no error.

In her supplemental brief Rochelle Hovav argues that the lower court abused its discretion by invoking principles of comity and deferring to the judgment of the Israeli court. Rochelle Hovav contends that the Israeli judgment rests upon religious and nationalistic principles rather than on the best interests of the children. We again note that the ruling in Zaubi, supra, is that our courts must recognize valid foreign custody decrees unless there is a showing that conditions in the custodial household would be harmful to the children. It is true that the Israeli decree cites religious principles but the decree also states that under both civil and religious law “there is an overwhelming principle which is the good of the child.” R.R. at 29A. The Israeli court opinion points out that religious law supports the concept of deciding custody issues with reference to the best interests of the children. Under Zaubi, supra, the lower court correctly refused to modify the Israeli decree.

Order affirmed.

      . The Uniform Child Custody Jurisdiction Act is found at 42 Pa.C.S. § 5341 et seq. and will be referred to as either the UCCJA or the Act.

      . Appellants were also permitted to file a supplemental brief. This supplemental brief essentially reiterates the contentions advanced in the first brief filed.