author: HESTER, Judge.

text:
    635 A.2d 170
    In the Matter of LUIS R., Angel M. and Melissa C. Appeal of LUIS C.
    Superior Court of Pennsylvania.
    Submitted Sept. 13, 1993.
    Filed Dec. 6, 1993.

      Barry Greenspan, Philadelphia, for appellant.
    Carolyn O’Garro-Moore, Philadelphia, for participating party Dept, of Human Services.
    Ellen Ceisler, Philadelphia, for participating parties' Luis R., Angel M. and Melissa C.
    Jay H. Ginsburg, Norristown, for participating party Bionette R.
    Before WIEAND, CIRILLO and HESTER, JJ.
   HESTER, Judge.

Luis C. appeals from the order dated September 16, 1992, which continued the dependency of his children, Luis, Angel, and Melissa, suspended his visits with them, and changed the goal of the family service plan to adoption. We affirm.

Luis was born on June 3, 1987, to appellant-father and Bionette R., Mother. Both parents were fifteen years old at the time of Luis’s birth. Angel was born on July 18, 1988, and Melissa was born on April 2, 1990. On October 24, 1990, the Department of Human Services (“DHS”) found Luis, Angel, and Melissa in the care of Bionette’s mother, Obedelia R. Mother’s whereabouts were unknown; appellant was incarcerated at the time. The home in which the children were found had been cited for code violations which were deemed an emergency and health hazard, and the dwelling had been declared unfit for human habitation by the Department of Licences and Inspections. Luis and Angel were placed together in a foster home, and Melissa was placed separately. The children were adjudicated dependent on November 14, 1990, and continued in foster care at that time.

In December, 1990, appellant, who had been released from prison in November, 1990, and Mother agreed to and signed the individual service plans which had been developed for the children. One of the requirements of the plan was for both parents to obtain drug treatment. Appointments were made for a drug and alcohol treatment program in December, 1990, but both parents failed to attend. Another appointment was made for January 17, 1991; again, appellant did not attend.

In February, 1991, appellant was incarcerated again. He was released to a halfway house six months later, at which time a visit with the children occurred on August 13, 1991. A visitation schedule was established for appellant and visits were set for August 29, September 12 and 26, and November 12, 1991. Appellant failed to appear at any of the scheduled visits. Appellant also had failed to attend GED and drug and alcohol treatment programs, two requirements of the individual service plans for the children.

Appellant absconded from the halfway house in September, 1991, and was incarcerated again by December, 1991. On March 2, 1992, DHS filed a motion for a goal change to adoption. At a hearing held June 12, 1992, the parties stipulated to the facts as set forth in the motion for goal change, which we summarized above. Notes of Testimony (“N.T.”), 6/12/92, at 2. The motion for goal change was granted as to Mother and continued as to appellant, to allow him the opportunity to produce evidence of efforts made while incarcerated to comply with the individual service plans’ objectives.

A hearing was held on September 16, 1992, following which the common pleas court granted the motion for goal change to adoption. This appeal followed the denial of a motion to reconsider.

It is well-settled that:

The standard of review which this Court employs in cases of dependency is broad. In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977)____ [W]e will not overrule [the trial court’s] findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).

In the Interest of C.S., 397 Pa.Super. 519, 522-23, 580 A.2d 418, 420 (1990); see also In the Interest of R.C., 427 Pa.Super. 196, 628 A.2d 893 (1993). “While our standard of review in dependency cases is generally quite broad, we must defer to the fact finding of the hearing judge who had the opportunity to observe and rule upon the credibility of the witnesses and parties who appeared.” In re S.M., 418 Pa.Super. 359, 362, 614 A.2d 312, 313 (1992).

Appellant argues that DHS failed to explore placement of the children with relatives in Puerto Rico in violation of the requirement of reunification of the family set forth in the Juvenile Act, 42 Pa.C.S. § 6301 et seq. We examined the significance and interaction of the family service plan and designated goal established for a dependent child in In re Interest of M.B., 388 Pa.Super. 381, 386-87, 565 A.2d 804, 807 (1989), where we stated:

[T]he importance of the service plan and the goal it identifies for the child involved cannot be overemphasized. As we recently noted in an article appearing in the Children’s Rights Chronicle, produced by the Juvenile Law Center:
... the family service plan is the key to the dependency process. It provides a social work tool which spells out a goal and everyone’s tasks in reaching toward that goal. All parties to the plan should participate in its formation so that they understand the problems facing the family and also understand what is expected of them to remedy those problems.
By documenting what the parents, agency and other players in the process need to do, the FSP [the plan] is also legally valuable when efforts fail to reunify a family.... the lawyers should elicit testimony so that the court sees a parent’s performance in reference to the guidelines spelled out through the FSP tasks. The court can thus determine when efforts toward reunification have been made but because of repeated lack of cooperation or failure, the necessary tasks cannot be performed and the goal should be abandoned.
Remarks of Sam Magdovitz of Juvenile Law Center, reprinted in Children’s Rights Chronicle, Volume Six, No. 3, at 1 (1987-88).

The trial court disagreed with appellant’s claim, as do we. By granting the goal change to adoption, the trial court has determined that adequate services have been provided to appellant, but he nonetheless is incapable of caring for his children and therefore, adoption is appropriate. A review of the record reveals that a myriad of interventions were arranged for appellant so that he could achieve the goals outlined in the family service plans. Appellant refused to cooperate and participate in any of the programs offered to him, which was the only mechanism by which he could have ameliorated the conditions and climate which lead to the determination of dependency of his children and their placement in foster care.

There is no basis for appellant’s argument that according to Pennsylvania regulations governing the placement of children in foster homes, there is a sequential hierarchy of goals which must be identified by the agency. 55 Pa.Code § 3130.67(b)(9) sets forth the permissible goals for a child in placement:

§ 3130.67 — Placement Planning.
(a) Except for emergency placement, the county agency shall prepare an amendment to the service plan prior to placing a child.
(b) The amendment to the service plan shall include the following for each child placed:
(9) An identification of one of the following goals for the child in placement:
(i) Return to own home.
(ii) Placement in the home of another relative.
(iii) Adoption.
(iv) Placement with a legal guardian.
(v) Independent living.
(vi) Long-term placement.

It is clear that one goal is not mandated over another; nor does the language of the regulation require that each goal be implemented in the order in which they are listed.

Furthermore, appellant has misrepresented in his brief the availability of relatives to care for his children and the availability of this information to DHS at the time the motion for goal change was presented. N.T., 9/16/92, 46-54. There is no requirement that DHS or the trial court engage in an exhaustive investigation into appellant’s family before changing the goal to adoption. Moreover, once appellant provided information concerning family members, DHS did take action to ascertain the feasibility of placing the children with them by ordering an investigation and home study through an interstate compact. Id. at 48-49. It is clear that the trial court evaluated all of the factors impacting on this determination and concluded that adoption is the most appropriate goal for these children.

Our comments regarding appellant’s claim that he was not afforded an opportunity to satisfy the goals of the family service plans can be brief. Our review of the record reveals that DHS provided appellant with countless opportunities to meet the goals of the family service plans, all to no avail. We reject appellant’s excuse that because he was incarcerated for a significant period, there were no services available to him in prison which would have enabled him to meet the goals of the family service plans. We agree with appellee and the trial court that appellant was provided with a plethora of services when he was not incarcerated which he totally ignored. He failed even to visit with his children when he had the opportunity. Finally, appellant’s actions in applying to a drug rehabilitation program and writing four letters inquiring about his children in the spring of 1992, all actions initiated after the goal change motion had been filed and nearly two and one-half years after his children had been placed in foster care, are prime examples of “too little, too late.” The trial court reasonably regarded these last minute, half-hearted actions with skepticism.

Appellant’s final argument is that the child advocate should have acted as legal counsel to the children and instead, acted as guardian ad litem. We agree with the trial court that since the child advocate fulfilled its duty to assert the children’s best interests, there was no error.

Order affirmed.

      . Luis was mother's second child.

      . The living conditions of the family were of heightened concern to DHS in light of the fact that the family previously had utilized illegal electric and gas connections which resulted in a fire in 1988 in which Mother’s first child, also named Melissa, and two of Mother's siblings perished.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    635 A.2d 173
    GENERAL EQUIPMENT MANUFACTURERS, Appellee, v. WESTFIELD INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1993.
    Filed Dec. 6, 1993.

      James R. Cooney, Pittsburgh, for appellant.
    Valerie A. Gatesman, Pittsburgh, for appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   KELLY, Judge.

In this opinion, we are called upon to determine whether the trial court properly held that a subcontractor, who was unable to complete a subcontract due to the general contractor’s dismissal from the project by the owner, was required to prove the amount of labor and materials supplied to the project, rather than the reasonable cost of completing the subcontract, when attempting to recover payment for unpaid invoices from the general contractor’s surety pursuant to a labor and materials payment bond. We are also called upon to determine whether the trial court properly excluded, as irrelevant, evidence pertaining to the percentage of the subcontract completed before the general contractor’s dismissal from the project and the amount of the money the subcontract or was paid to complete the subcontract by a different general contractor. We hold that the trial court did not err regarding the subcontractor’s burden of proof for recovery of unpaid invoices pursuant to a labor and materials payment bond, nor did it commit error in its evidentiary rulings. Thus, we affirm the judgment entered in favor of General Equipment Manufacturers Inc. (GEM) for $92,221.53.

The relevant facts and procedural history of this case are as follows. On May 23, 1985, Coco Brothers, Inc. (Coco Brothers) entered into a contract with the School Board of Pittsburgh (School Board) to renovate the Oliver High School. The appellant, Westfield Insurance Company (Westfield) furnished Coco Brothers with the statutorily required labor and material payment bond (payment bond). Coco Brothers employed numerous subcontractors to assist with the renovation of the school building, including GEM. Pursuant to the terms of its subcontract with Coco Brothers, GEM was to furnish and install all of the wood casework for the project in accordance with the plans and specifications contained in the construction contract between Coco Brothers and the School Board for the sum of $240,000.00. GEM performed the work under its subcontract with Coco Brothers in stages from August, 1986 to March, 1987. GEM’s first two deliveries of casework to the project were acceptable to both Coco Brothers and the School Board; however, GEM’s third delivery of casework was initially rejected by the School Board and subsequently remedied by GEM. Additionally, during this time period, Coco Brothers received instructions from the School Board to delete three classrooms from the renovations. Coco Brothers received a credit for these deletions.

In March of 1987, Coco Brothers was dismissed as general contractor by the School Board together with all of its subcontractors, including GEM. At the time of Coco Brothers’ termination as general contractor by the School Board, GEM had already billed Coco Brothers $106,552.00 for work and materials provided to the project. Coco Brothers paid GEM $28,065.00, leaving an unpaid balance of $78,486.00.

After Coco Brothers’ departure from the job site, the School Board requested a credit from Coco Brothers for the work that had not been completed. Coco Brothers in turn requested a credit from each of its subcontractors. GEM offered Coco Brothers a $123,000.00 credit which in turn was passed on to the School Board without objection.

Coco Brothers’ dismissal from the job site caused it to institute a law suit against the School Board; however, the common pleas court refused to proceed with the action because Coco Brothers’ construction contract with the School Board contained a compulsory arbitration clause. Coco Brothers then initiated proceedings pursuant to the construction contract’s arbitration clause. At the arbitration, John Coco, Jr. testified that Coco Brothers owed GEM money. During this time period, Coco Brothers’ attorney, Maurice Nernberg, sent GEM’s counsel, Thomas H. Welsh, a letter stating that the arbitration proceeding between Coco Brothers and the School Board was going very well so far and that hopefully Coco Brothers would be able to pay GEM’s invoices without any unnecessary expense to GEM. This letter also thanked GEM for its forbearance in bringing a claim on the bill while Coco Brothers was proceeding with its arbitration against the School Board. The arbitration panel subsequently awarded Coco Brothers $467,582.92 plus $28,054.98 for a total award of $495,637.89, an amount considerably less than the nearly $900,000.00 it had been seeking. In the interim, GEM had become a subcontractor to Coco Brothers’ replacement on the Oliver High School renovation project, the McAnallen Corporation. Under its contract with the McAnallen Corporation, GEM was paid $172,000.00 for completing the wood casework for the Oliver High School renovation project.

After the completion of the arbitration proceedings between Coco Brothers and the School Board, GEM demanded from Coco Brothers payment of the $78,486.40 unpaid balance. Coco Brothers refused to pay the outstanding balance alleging it had not received proper credit from GEM for the deletions from the project and back charges imposed by the School Board for GEM’s defective work. GEM then sought payment from Westfield pursuant to the payment bond. When West-field refused to pay, Gem filed a complaint against Westfield asserting it was entitled to payment of the $78,486.40 unpaid balance pursuant to the terms of the payment bond.

In its complaint, GEM asserted that it had completed thirty-three percent of the work under the subcontract. This assertion was specifically denied by Westfield. During discovery, Westfield submitted interrogatories and requested production of documents pertaining to the calculation of GEM’s invoices to Coco Brothers. When GEM filed objections to Westfield’s interrogatories and request for production of documents, Westfield presented a motion to compel discovery before the Honorable Bernard J. McGowan. Judge McGowan denied Westfield’s motion to compel discovery. The case was then scheduled for jury trial before the Honorable Frederic G. Weir. Before trial, both parties presented several motions in limine. Westfield’s first motion in limine sought to limit GEM’s damages to thirty-three percent of the $240,000.00 contract price ($80,000.00) minus the $28,065.60 in payments that its principal, Coco Brothers, had already made to GEM. Westfield’s second motion in limine sought to preclude GEM from referring to other lawsuits that had arisen from Coco Brothers’ failure to pay other subcontractors from the project. Both of Westfield’s motions in limine were denied by the trial court.

GEM also presented two motions in limine. In its motions in limine, GEM sought to exclude from evidence as irrelevant any reference to GEM’s subsequent contract with the McAnallen Corporation for the completion of the Oliver High School renovation project and any reference to Coco Brothers’ lawsuit against GEM alleging abuse of process and wrongful use of civil proceedings. Both of GEM’s motions in limine were granted by the trial court.

At trial, GEM presented the testimony of its president, James T. Majure. Mr. Majure testified that three invoices for the work completed had been sent to Coco Brothers, on August 20, 1986 for $27,514.00, September 26, 1986 for $3,670.00 and January 16, 1987 for $73,368.00. Mr. Majure also testified that Coco Brothers had made payments of $24,762.60 and $3,303.00 for the first two invoices while withholding ten percent which was to be paid to GEM upon the completion of the entire project. Mr. Majure further testified that Coco Brothers had failed to make any payment for the third invoice of $73,368.00. Finally, Mr. Majure testified Coco Brothers owed GEM a total of $78,486.40, stating this figure included the unpaid third invoice and the ten percent which had been retained from Coco Brothers’ two previous payments to GEM. GEM also presented the testimony of H. Edward Vero and Robert Capo of the School Board. Both Mr. Vero and Mr. Capo testified that GEM’s work on the project was not the subject of any back charge that was imposed upon Coco Brothers by the School Board. At the close of GEM’s case, Westfield moved for a compulsory non-suit asserting GEM had failed to make a prima facie case because it had failed to prove the cost of completing the work. The motion for compulsory non-suit was denied by the trial court.

Westfield then presented its case in which it attempted to present evidence pertaining to the difference between the $123,000.00 credit for unfinished work that GEM had given to Coco Brothers and the $172,000.00 it was paid by the McAnallen Corporation to complete the wooden casework for the project. The trial court refused to admit this evidence ruling that it was the subject of GEM’s motion in limine which excluded all evidence pertaining to the subsequent contract between GEM and the McAnallen Corporation as irrelevant. At the close of its case, Westfield moved for a directed verdict. Westfield’s motion for directed verdict was denied by the trial court. The jury returned a verdict in favor of GEM for $78,486.40. The verdict was then molded by the trial court to include interest. Post-trial motions were denied. This timely appeal followed.

On appeal, Westfield raises the following issues for our review:

1. DID APPELLEE FAIL TO PROVE A PRIMA FA-CIE CASE, SINCE IT OFFERED NO EVIDENCE OF THE REASONABLE COST TO COMPLETE THE UNFINISHED WORK?
2. WAS THE VERDICT CONTRARY TO APPELLEE’S JUDICIAL ADMISSIONS?
3. DID THE COURT ERR IN EXCLUDING EVIDENCE OF THE PERCENTAGE OF COMPLETION AND THE REASONABLE COSTS OF COMPLETING THE WORK?
4. DID THE COURT ERR IN REJECTING EVIDENCE AND DISCOVERY REGARDING THE COMPONENTS OF APPELLEE’S BILLS?
5. DID THE COURT ERR IN WITHDRAWING APPELLANT’S DEFENSES FROM THE JURY?
6. DID THE COURT ERR IN PERMITTING APPELLEE TO SUBMIT EVIDENCE OF OTHER LAWSUITS FILED AGAINST APPELLANT?

(Westfield’s Brief at 3).

In its first issue on appeal, Westfield contends that GEM failed to prove a prima facie case because it failed to offer any evidence relating to the reasonable cost of completing the unfinished work. Westfield argues that a contractor who is prevented from completing performance on a contract through no fault of his own is entitled to recover the contract price less the reasonable cost of completing the work. Westfield asserts that because GEM failed to prove the reasonable cost of completing the work, it did not make out a prima facie case, thus entitling Westfield to a judgment notwithstanding the verdict. We disagree.

A suretyship is evidenced by a contract and represents a three-party association where a creditor is entitled to performance of a contractual duty by the principal debtor or alternatively, if the debtor defaults, by the debtor’s surety. Continental Bank v. Axler, 353 Pa.Super. 409, 510 A.2d 726 (1986), appeal granted, 516 Pa. 626, 532 A.2d 437 (1987), appeal dismissed, 518 Pa. 58, 540 A.2d 267 (1988). A surety may usually assert any defense of which his principal could take advantage. McShain v. Indemnity Ins. Co. of North America, 338 Pa. 113, 12 A.2d 59 (1940). Where the condition of a construction bond is that the obligor not only agrees that the contractor will fully perform his contract according to its terms, but will also pay “all lawful claims of subcontractors, materialmen, and laborers for labor performed and materials furnished in the carrying forward, performing or completing of said contract,” the subcontractors, materialmen, and laborers are donee beneficiaries, and each can maintain an action on the bond to recover the amount due him for work done and materials furnished. Commonwealth ex rel. Schnader v. Great American Indemnity Co., 312 Pa. 183, 167 A. 793 (1933). When determining the liability of a surety on a public construction surety bond, the proper place to start is the bond itself because the true intent and meaning of the instrument are the primary determinates of the extent of liability. Salvino Steel & Iron Works Inc. v. Fletcher & Sons Inc., 398 Pa.Super. 86, 580 A.2d 853 (1990), appeal dismissed, 529 Pa. 62, 601 A.2d 806 (1992). A surety is not liable on a bond unless it appears that the work unpaid by the principal was completed pursuant to the contract that the bond purports to cover. Commonwealth, to use of Sgarlat et al. v. Blockberger, 324 Pa. 370, 188 A. 523 (1936); Commonwealth, to use, v. Hartford Acc. & Ind. Co., 306 Pa. 513, 160 A. 113 (1932); Commonwealth v. R.L. Bonham Co., 297 Pa. 514, 147 A. 611 (1929).

Instantly, the payment bond issued by Westfield as surety for Coco Brothers specifically states:

“NOW, THEREFORE, the condition of this obligation is such that if the said Contractor shall promptly make payment of all just claims for materials or machinery furnished and labor supplied or performed in the prosecution and completion of the work to be done under the terms of said contract, or any amendment or extension thereof, or addition thereto, to every person, firm, copartnership, association, or corporation, who, whether as subcontractor or otherwise, has furnished, materials or the use of machinery or supplied or performed labor in the prosecution of said work, whether or not the said materials or use of machinery or labor entered into and became component parts of the work or improvements contemplated in said contract, then this obligation shall be void; otherwise it shall be and remain in full force and effect.
“Every person, firm, copartnership, association or corporation who, whether as subcontractor or other furnished materials or supplied or performed labor or furnished machinery for use in the prosecution of the work as provided, and who has not been paid therefore, may sue on this bond in accordance with the provisions of (a) to School Code of 19/.9, as amended and/or (b) the Public Works Contractor’s Bond Law of 1967, as amended, as the case may be; provided, however, that the School District shall not be liable for the payment of any costs or any suit.

(Emphasis added). Under this payment bond, the subcontractor (GEM) is entitled to payment for only the labor and materials supplied in the prosecution of the work. Thus, it was GEM’s burden to prove the amount of labor and materials supplied to the project that remained unpaid before Coco Brothers’ departure from the project in order to be entitled to recovery under the payment bond. Therefore, Westfield’s insistence that GEM was compelled to show the reasonable cost of completing the work that remained under the subcontract when Coco Brothers was removed as general contractor is misplaced and is applicable only in situations where a general contractor is wrongfully removed from a project by the owner. See Hottinger v. Hoffman-Henon Co., 303 Pa. 283, 154 A. 598 (1931).

GEM met its burden of proving the amount of labor and materials supplied through the testimony of its president, James Majure, and the two representatives of the School Board, H. Edward Vero and Robert Capo. GEM also presented evidence which proved that Coco Brothers had failed to pay for $78,486.00 of the labor and materials supplied to the project while Coco Brothers was the general contractor. Thus, due to Coco Brothers’ failure to pay for $78,486.00 worth of the labor and materials supplied to the project operated under its direction, GEM was entitled to payment from the surety, Westfield, pursuant to the payment bond. Accordingly, GEM met its burden of proof for seeking payment of the outstanding balance for labor and materials supplied to Westfield’s principal, Coco Brothers, and West-field’s motion for judgment notwithstanding the verdict was properly denied by the trial court.

In its second issue on appeal, Westfield contends that GEM’s allegation in its complaint that it had completed thirty-three percent of its subcontract with Coco Brothers constituted a judicial admission. Westfield argues, therefore, that GEM was only entitled to recover one-third of the subcontract price ($80,000.00) less the payments Coco Brothers had already made to GEM ($28,065.60), for a maximum total recovery of $51,034.40. We disagree.

A judicial admission is an express waiver made in court or preparatory to trial by a party or the party’s counsel, conceding for the purpose of trial, the truth of the admission. Jewelcor Jewelers & Distributors v. Corr, 373 Pa.Super. 536, 542 A.2d 72 (1988). The mere fact that a party expressly or impliedly makes an admission in the pleadings does not entitle the admission to be considered as such until it is placed on the record. Karnofsky Bros. v. Delaware & Hudson Co., 274 Pa. 272, 117 A. 783 (1924); Farbo v. Caskey, 272 Pa. 573, 116 A. 543 (1922); Maryland Casualty Co. v. Specht, 83 Pa.Super. 429 (1924); Jameson v. Jameson, 80 Pa.Super. 254 (1922). In order to take advantage of the admission contained in the pleadings, the specific paragraphs of the pleadings in which the allegations appear must be offered into evidence. Discovich v. Chestnut Ridge Transp. Co., 369 Pa. 228, 85 A.2d 122 (1952). Such admissions are properly placed in evidence when the specific parts of the statement, together with the defendant’s answers not denying the averments, are offered into evidence. Semple v. Kramer, 83 Pa.Super. 161 (1924). An allegation in a pleading which is specifically denied in a defensive pleading does not constitute a judicial admission and may not be admitted into evidence. Kann v. Bennett, 223 Pa. 36, 72 A. 342 (1909); Daniels v. Atkins, 95 Pa.Super. 86 (1928).

In the instant case, Westfield, in its answer, specifically denied GEM’s averment that one-third of the subcontract had been completed while Coco Brothers was the general contractor of the project. Westfield further asserted in its answer that GEM had only completed twenty-five percent of its subcontract with Coco Brothers. Accordingly, GEM’s averment that it had completed thirty-three percent of the subcontract cannot constitute a judicial admission which would limit GEM’s recovery to one-third of the subcontract price minus the payments Coco Brothers had already made to GEM. Therefore, the trial court properly denied Westfield’s motion in limine to limit GEM’s recovery to $51,034.40.

Westfield, in its third issue on appeal, maintains that the trial court committed error by excluding all evidence pertaining to either the percentage of the work completed on GEM’s subcontract with Coco Brothers or the reasonable costs of completing the work after Coco Brothers left the project. Specifically, Westfield asserts that it should have been permitted to cross-examine GEM’s president, James Majure, regarding the percentage of the subcontract completed by his company. Westfield further asserts that it should have been permitted to introduce into evidence the fact that GEM offered Coco Brothers a credit of $123,000.00 for the work deleted under its subcontract with Coco Brothers while receiving $172,000.00 from Coco Brothers’ replacement as general contractor on the project, the McAnallen Corporation, for the same work. Westfield claims that such evidence was highly relevant to the amount due to GEM under its subcontract with Coco Brothers and its improper exclusion entitles Westfield to a new trial. We disagree.

Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Leonard v. Nichols Homeshield Inc., 384 Pa.Super, 1, 5, 557 A.2d 743, 745 (1989); Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). Relevance is a threshold consideration in the determination of the admissibility of evidence. Whyte v. Robinson, 421 Pa.Super. 33, 38, 617 A.2d 380, 383 (1992); Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 618, 537 A.2d 334, 338 (1988). Pennsylvania trial judges enjoy broad discretion regarding the admissibility of potentially misleading and confusing evidence. Whyte v. Robinson, supra at 38, 617 A.2d at 383; Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984).

As stated earlier, under its claim pursuant to the payment bond, GEM was only entitled to recover from West-field for the labor and materials it had supplied in the prosecution of the work for which it had not already received payment from Coco Brothers. Thus, evidence concerning what percentage of the subcontract GEM had completed, how much of a credit GEM gave Coco Brothers for work uncompleted under the subcontract, and how much GEM was paid by the McAnallen Corporation for the uncompleted work on the project was irrelevant to the issue of whether GEM had in fact supplied the labor and materials to the project for which it was claiming that Coco Brothers had failed to pay. Because the admission of such evidence was not relevant to the issue of whether GEM had supplied labor and materials to the project while Coco Brothers had been the general contractor for which it had not been paid had the potential to mislead and confuse the jury regarding the issue before it, we find no abuse of discretion in the trial court’s determination to exclude this evidence.

In its fourth issue on appeal, Westfield contends that after the trial court rejected its attempt to present evidence regarding GEM’s percentage of completion on its subcontract and the reasonable costs of completing the work, the trial court erroneously refused to permit Westfield to present evidence on these same issues through the cross-examination of GEM’s president, James Majure. Westfield argues that the trial court erred by refusing to allow it to cross-exam James Majure regarding the various components of GEM’S invoices to Coco Brothers and whether he had brought to records supporting GEM’s invoices to court. Westfield further argues that the invoices in and of themselves did not constitute adequate proof that there was an unpaid balance on the invoices due to GEM. Finally, Westfield further asserts that Judge McGowan committed reversible error by denying West-field’s motion to compel GEM to produce all of its records pertaining to the calculation of its invoices to Coco Brothers.

The scope and limits of cross-examination are within the trial court’s sound discretion, and the exercise of that discretion will not be reversed in the absence of a clear abuse of discretion or an error' of law. In re Townsend’s Estate 430 Pa. 318, 241 A.2d 534 (1968); Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). In setting limits on cross-examination, the trial court may consider whether the cross-examination would be likely to confuse or mislead the jury. Commonwealth v. Monroe, 373 Pa.Super. 618, 542 A.2d 113 (1988), appeal denied, 522 Pa. 574, 559 A.2d 36 (1989); Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982). The defendant should never be permitted to put in his defense under the cover of cross-examination. In re Rogan’s Estate, 404 Pa. 205, 171 A.2d 177 (1961). A witness can be contradicted only on matters germane to the issue being tried, and the test of materiality of a fact brought out on cross-examination is whether the party cross-examining would be entitled to prove it as part of his own case. Herr v. Erb, 163 Pa.Super. 430, 62 A.2d 75 (1948). Where direct testimony of a witness has been ruled out, the adverse party cannot be permitted to introduce such evidence under the pretense of cross-examining his adversary’s witness. Commonwealth v. Roth, 71 Pa.Super. 71 (1919).

Instantly, the trial court properly refused to permit Westfield to present evidence regarding the percentage of the subcontract which GEM had completed and the cost of completion through the cross-examination of James Majure that had been excluded in the pre-trial motion in limine. Because Westfield was not entitled to present this evidence directly as part of its own case, the trial court properly precluded West-field from introducing this evidence under the guise of its cross-examination of James Majure.

Additionally, Westfield’s claim that GEM has relied upon unsupported invoices as its basis to recover on the payment bond is disingenuous. Our review of the record indicates that GEM relied not only upon the testimony of James Majure in support of its claim that it was entitled to payment for unpaid balance of the work that it had completed under the subcontract, but also supported its claim with the testimony of two representatives of the School Board. Moreover, GEM also presented evidence from the transcript of the arbitration between Coco Brothers and the School Board in which John Coco, Jr. admitted that his company owed GEM for unpaid work. Thus, we hold that Westfield’s claim that GEM has sought payment through the use of unsupported invoices to be without merit.

Westfield’s final assertion in its fourth issue on appeal is that Judge McGowan committed reversible error by denying Westfield’s motion to compel production of all GEM’s records pertaining to the preparation of the invoices that it sent to Coco Brothers for payment. Westfield contends that the requested documents were relevant to the amount of money GEM claimed it was due, as well as to Westfield’s defense that the invoices were excessive in relation to the work actually completed under the subcontract.

We note that it is the duty of the appellant to supply this Court with a record which is sufficient to permit a meaningful appellate review. School District of Aliquippa, et al. v. Maryland Casualty Company, 402 Pa.Super. 569, 575, 587 A.2d 765, 768-69 (1991). A failure by the appellant to insure that the original record certified for appeal contains sufficient information to conduct a meaningful appellate review constitutes a waiver of the issue sought to be reviewed. Burns v. Kabboul, 407 Pa.Super. 289, 313 n. 1, 595 A.2d 1153, 1165 n. 1 (1991). The Pennsylvania Rules of Appellate Procedure provide specific steps that are to be taken in absence of a transcript to a proceeding which is the subject of an appeal. Pa.R.App.P. 1923 instructs an appellant as follows:
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
The purpose of Pa.R.App.R. 1923 is to provide a reviewing court with an “equivalent picture” of the proceedings when there is no transcript of the proceedings. Oblon v. Ludlow-Fourth Corp., 406 Pa.Super. 591, 604-05 n. 9, 595 A.2d 62, 69 n. 9 (1991); Commonwealth v. Buehl, 403 Pa.Super. 143, 148 n. 7, 588 A.2d 522, 524 n. 7 (1991).

Boyle v. Steiman, 429 Pa.Super. 1, 6, 631 A.2d 1025, 1030 (1993).

Instantly, Westfield has neither furnished a transcript of the oral argument of its motion to compel production of documents before Judge McGowan nor attempted to reconstruct these proceedings in accordance with Pa.R.App.R. 1923. Thus, this Court is without a clue as to what transpired at the oral argument or upon what basis Judge McGowan denied Westfield’s motion to compel the production of documents while directing GEM to answer Westfield’s second and third interrogatories by utilizing the transcript of the arbitration proceeding between Coco Brothers and the School Board. Accordingly, absent a transcript of the proceedings before Judge McGowan or a Pa.R.App.R. 1923 summary of those proceedings, this Court is without an adequate record to decide whether that Judge McGowan erred by denying West-field’s motion to compel the production of documents and this issue has been waived for the purposes of appeal.

In its fifth issue on appeal, Westfield maintains that the trial court erred by failing to instruct the jury regarding the various defenses it raised to GEM’s claim at trial. Specifically, Westfield submits that the trial court improperly failed to instruct the jury that GEM had only completed twenty-five percent of its subcontract with Coco Brothers, that the School Board has asserted a $30,000.00 back charge against Coco Brothers for GEM’s defective work, that Westfield was entitled to receive the difference between the $123,000.00 credit it received from GEM and the $172,000.00 GEM received from the McAnallen Corporation for the completion of the same work, and that Westfield was entitled to an additional credit of $9,200.00 for other deleted work. Finally, Westfield asserts that the trial court also erred by instructing the jury that it was obligated to award GEM “all or nothing” of its claim. Thus, Westfield concludes that due to the trial court’s erroneous jury instructions, it is entitled to a new trial.

The purpose of charging the jury is to clarify the issues which the jurors must determine. Wood v. Smith, 343 Pa.Super. 547, 550, 495 A.2d 601, 603 (1985). In determining whether to reverse a jury verdict due to an erroneous jury charge, an appellate court must look at the jury charge as a whole; if the charge inaccurately describes the law, there is error. Reilly by Reilly v. Southeastern, Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Summit Fasteners Inc. v. Harleysville Nat. Bank, 410 Pa.Super. 56, 599 A.2d 203 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902 (1991). Alleged errors in the jury instructions must be considered in relation to the entire charge and in light of the evidence presented. Clayton v. Sabeh, 406 Pa.Super. 335, 594 A.2d 365 (1991), appeal denied, 529 Pa. 639, 600 A.2d 1257 (1991). In order to constitute reversible error, a jury instruction must not only be erroneous, but must also be harmful to the complaining party. Summit Fasteners Inc. v. Harleysville Nat. Bank, supra 410 Pa.Super. at 62, 599 A.2d at 206; Jistarri v. Nappi, 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1983).

Our review of the record indicates that Westfield’s claims that the trial court failed to instruct the jury regarding its defenses to GEM’s claim are dependent either upon West-field’s unsupported allegation that GEM was responsible for Coco Brothers’ failure to recover all that it had claimed it was due in its arbitration proceeding against the School Board or upon evidence that had been properly excluded through GEM’S pre-trial motions in limine. Additionally, our review of the record reveals that the trial court did not, as Westfield claims, instruct the jury that it must decide GEM’s claims on an all or nothing basis. Rather, the trial court properly instructed the jury that it could, if it were so inclined, reach a compromised verdict. (N.T. 3/16/90 at 369). Thus, we hold that Westfield’s assertions that the trial court erroneously instructed the jury are without merit.

In its final issue on appeal, Westfield contends that the trial court committed error by permitting GEM to cross-examine Westfield’s witness, John J. Coco, Jr., regarding Coco Brothers’ failure to pay other subcontractors on the project. Westfield argues that the trial court improperly allowed GEM to introduce during its cross-examination of John Coco, Jr. evidence that other subcontractors on the project had brought lawsuits to recover payment for unpaid work and that in these lawsuits Westfield was asserting the same defenses to their claims as it was alleging against GEM’s claim. Westfield maintains that any reference to other pending judicial proceedings to show that a party is litigious or fails to honor its obligations constitutes reversible error. Thus, Westfield concludes that it is entitled to a new trial due to the erroneous admission of this evidence.

Where a party is called as a witness by his adversary, as on cross examination, leading questions may be put to him, and there may be drawn from him any facts or admissions which weaken his case or strengthen his adversary’s case. Brubaker’s Administrator v. Taylor, 76 Pa. 93 (1874). See also 42 Pa.C.S.A. § 5935. The witness is considered as if originally offered and examined on his own behalf and his testimony may be contradicted by proof of inconsistent declarations made out of court without giving him an opportunity of explaining. Id.; Kimble v. Wilson, 352 Pa. 275, 42 A.2d 526 (1945); Cronkite v. Trexler, 187 Pa. 100, 41 A. 22 (1898). Evidence of similar acts or transactions is inadmissible when irrelevant to the issues in the case. Steinberg v. M. Nathan & Bro. Inc., 300 Pa. 496, 150 A. 899 (1930); Veit v. Class and Nachod Brewing Company, 216 Pa. 29, 64 A. 871 (1906); Caulfield v. Aetna Life Ins. Co. of Hartford Conn., 144 Pa.Super. 257, 19 A.2d 575 (1941). Thus, the law will not consider evidence that a person has done a certain act at a specific time as probative of a contention that he has done a similar act at another time. Roney v. Clearfield County Grange Mut. Fire Ins. Co., 332 Pa. 447, 3 A.2d 365 (1939); Jamestown Iron and Metal v. Knofsky, 302 Pa. 483, 154 A. 15 (1930); Keiter v. Miller, 111 Pa.Super. 594, 170 A. 364 (1934). While the commission of an act charged cannot be proved by showing the commission of a like act at a different time, an exception to this rule exists where knowledge or intent is a material fact to be proved. Baumeister v. Baugh & Sons Co., 142 Pa.Super. 346, 353, 16 A.2d 424, 427 (1940); Keiter v. Miller, supra 111 Pa.Super. at 596, 170 A. at 365. Under such circumstances, evidence of similar acts or transactions is admissible when relevant to prove an issue in the case. Laney v. Columbia Natural Gas Co., 305 Pa. 527, 158 A. 266 (1931). Accordingly, evidence of a course of conduct or dealing followed by a person may be admitted to prove that he acted in accordance with it on a given occasion, provided such a course of conduct or dealing is shown to have been continuous and systematic. Pennsylvania Company v. Philadelphia Electric Co., 331 Pa. 125, 200 A. 18 (1938); White v. Rosenthal, 173 Pa. 175, 33 A. 1027 (1896).

Instantly, during its cross-examination of John Coco, Jr., GEM elicited evidence that Coco Brothers had previously admitted in its arbitration proceeding with the School Board that it owed GEM and other subcontractors for labor and materials supplied to the project. GEM further elicited testimony from John Coco, Jr. that, after Coco Brothers had received an arbitration award which was significantly less than it had sought, it changed its position regarding the subcontractors’ claims against it and asserted that it owed the subcontractors nothing, thus compelling the subcontractors to file lawsuits in order to' be paid for labor and materials that Coco Brothers had previously maintained the subcontractors had supplied to the project. Accordingly, this evidence was properly admitted by the trial court as it tended to both weaken Westfield’s case and strengthen GEM’s case, see Brubaker’s Administrator v. Taylor, supra, while establishing a continuous and systematic course of dealing by Coco Brothers and Westfield with the subcontractors whose outstanding claims for unpaid labor and materials supplied to the project were involved in the arbitration proceeding between Coco Brothers and the School Board.

Based upon the foregoing, the judgment for $92,221.53 entered in favor of GEM is affirmed.

Judgment affirmed.

      . This case was originally appealed to this Court on August 31, 1990. A panel of this Court transferred the case to the Commonwealth Court because the appeal involved the application and interpretation of the Public Work’s Contractors’ Bond Law and the bond requirements of the School Code of 1949. See General Equipment v. Westfield Ins., 405 Pa.Super. 550, 592 A.2d 1349 (1991). On April 22, 1993, the Commonwealth Court entered an order transferring the case back to this Court. Because neither party has objected to the exercise of jurisdiction by this Court, our jurisdiction has been perfected and thus we may address the merits of this appeal even though exclusive jurisdiction is vested in another appellate court. See 42 Pa.C.S.A. § 704(a); Pa.R.App.P. 741(a); General Equipment v. Westfield Ins., supra (Brosky, J. dissenting).

      . A witness may be questioned as if on cross-examination when his interest is adverse to the party calling upon him to testify. Gaul v. Consolidated Rail Corp., 383 Pa.Super. 250, 556 A.2d 892 (1989) appeal denied, 524 Pa. 621, 571 A.2d 383 (1989). Instantly, because John Coco, Jr.’s employer, Coco Brothers, is ultimately liable to its surety, Westfield Insurance Company, for any judgment rendered in favor of GEM, John Coco, Jr. was properly called upon as a hostile witness and correctly questioned as if on cross-examination. See Dinger v. Friedman, 279 Pa. 8, 13-14, 123 A. 641, 642-43 (1924).


author: OLSZEWSKI, Judge:

text:
    635 A.2d 186
    Jeffrey D. HILL, Appellant, v. Ralph W. THORNE, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Dec. 9, 1993.

      Jeffrey D. Hill, appellant, pro se.
    Joseph D. Smith, Williamsport, for appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   OLSZEWSKI, Judge:

Jeffrey Hill appeals an order dismissing his complaint against attorney Ralph Thorne. The trial court dismissed the complaint for Hill’s failure “to conform to the Pennsylvania Rules of Civil Procedure.” In examining the trial court’s rather summary opinion accompanying the above order, we have some difficulty determining exactly how Hill failed to conform to the rules. The trial court does refer us to an opinion in a different action by Hill, in which that court more thoroughly set forth its reasons for dismissing the action. See Hill v. Holland, et al., 414 Pa.Super. 675, 599 A.2d 706 (1991). We have obtained a copy of this opinion, and can now proceed to address Hill’s pro se appeal.

Hill’s present action appears to be a malpractice claim against one of his court-appointed attorneys, Ralph Thorne. In addressing another appeal of Hill’s, we discovered that Thorne had managed to get this Court’s affirmance of Hill’s criminal convictions reversed by the Pennsylvania Supreme Court. Despite this unusual success, Hill alleges malpractice, arguing that Thorne should have procured a complete dismissal, not merely a remand for a new trial.

We also cannot help but note that Hill has filed numerous suits against not only his court appointed counsel, but district attorneys, judges and other county officials. Most of Hill’s handwritten motions, appeals, etc. show little respect for judicial officers, but fire insults and invective in every direction. In the present appeal, Hill describes the Lycoming County Court of Common Pleas as a “Legalized Mafia.” Hill’s preferred epithet for this Court is “you sanctimonious hypocrites.” The essence of Hill’s appeal seems to be that “[t]he prothonotary, the sheriff, and the judge along with the defendant who is an officer in their court don’t want me feeding the crooked Lycoming County kangaroo court anymore crow, so they conspired to stop me and are currently involved in shirking responsibility for their dirty, devious political chicanery and skullduggery.” Appellant’s brief at 4. At least Hill is a colorful writer.

But our task is to determine if the lower court erred in dismissing Hill’s complaint. The trial court apparently based its dismissal on two grounds: lack of jurisdiction for failure to properly serve process, and failure to state a cause of action. We will address the service of process issue first.

I.

Our review of the record before us indicates that Hill attempted to begin this action by sending (via certified mail) copies of his complaint, with instructions for service, to both the prothonotary and the sheriff. The prothonotary apparently lost the original complaint, but later was given a copy by defendant Thorne. The prothonotary did not forward a copy of the complaint to the sheriff for service. Meanwhile, the sheriff did not regard the complaint which Hill mailed directly to him as process which he was required to serve. Hence, original process was never served on defendant Thorne by the sheriff, as required by Pa.R.C.P. 400.

Hill argues that under Pa.R.C.P. 205.1, he could properly file his complaint and commence legal proceedings by sending copies to the prothonotary and sheriff by certified mail. It is not his fault, Hill contends, if the prothonotary refuses to forward copies to the sheriff, and the sheriff refuses to serve anything which doesn’t come from the prothonotary. We agree.

Even if Hill’s style of litigation might strike one as distasteful or annoying, he has a constitutional right to be heard in our courts. Article I, § 11 of the Pennsylvania Constitution provides:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

It is difficult to determine from the record before us exactly why Hill’s complaint was never served by the Lycoming County Sheriff. The trial court’s opinion merely tells us that “[t]he record does not show a return of service by the Sheriff.” Hill provides us with bits of affidavits and testimony which support his contention that the prothonotary refused to forward any of his complaints to the sheriff, and the sheriff refused to serve anything not forwarded from the prothonotary. The record also discloses that the Lycoming County Sheriff never notified Hill of the success or failure of service, pursuant to Pa.R.C.P. 405(g). Hill has also provided us with returns of service from Centre and Mercer Counties, to show that he has had no problems getting process served there. Finally, Hill argues that in the face of repeated inaction by the prothonotary and sheriff, he did the only reasonable thing: he served defendant Thorne directly by certified mail. Indeed, the record indicates that when the prothonotary lost Hill’s complaint, Thorne produced a copy to replenish the prothonotary’s files.

In its opinion, the trial court offered no response to Hill’s contention that the sheriff consistently refused to serve process for him. Rather, the trial court opined that since Hill was proceeding pro se, he must be “encountering difficulties in mastering and complying with the Rules of Civil Procedure.” Trial court opinion, 4/15/92 at 2. The trial court, without specifying precisely what procedural rules Hill disregarded, dismissed his complaint on this basis.

We are mindful of our caselaw holding that the service requirements of Pa.R.C.P. 400 be strictly followed. See, e.g. Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966). But our review of the record, such as it is, convinces us that Hill is quite familiar with our procedural rules, and has done everything he can to comply with them. We have held that untoward circumstances, such as interference by a third party which prevents delivery of process to the sheriff, can excuse a plaintiff from the strictures of Rule 400. Sweet v. Ayres, 277 Pa.Super. 236, 419 A.2d 749 (1980). Here, it appears that the prothonotary did not properly handle Hill’s complaint by delivering it to the sheriff for service. When a constitutional right is at stake, we cannot avert our eyes to the apparent “untoward circumstances” which have prevented Hill from obtaining proper service of process.

At this point we might remand and order the sheriff to properly serve Hill’s complaint, so as to bring Thorne into the trial court’s jurisdiction. In some circumstances, however, interests of judicial economy allow us to “regard as done that which ought to have been done.” McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254, n. 1, 561 A.2d 328, 330, n. 1 (1989). Here, defendant Thorne has received a copy of the complaint via certified mail, a practice which constitutes proper service in other circumstances. See Pa.R.C.P. 403. In order to better secure a just, speedy and inexpensive determination in this action, we will regard Hill’s personal service as satisfactory, since it is at most a technical defect of procedure which does not affect the substantial rights of the parties. See Pa.R.C.P. 126; Pa. Const. Art. I, § 11. We therefore reverse the trial court’s order dismissing Hill’s complaint for improper service.

II.

It appears that the trial court, by reference to an earlier opinion, also bases its dismissal on Hill’s failure to state a cause of action in his complaint. The notion of an indigent criminal defendant suing his court-appointed counsel for malpractice may strike us as impudent, but such a cause of action has been recognized by this Court. Quick v. Swem, 390 Pa.Super. 118, 568 A.2d 223 (1989) (convicted criminal defendant’s suit against public defender for legal malpractice not barred by the Post Conviction Relief Act, 42 Pa.C.S.A. § 9542, et seq.).

In order to plead legal malpractice, Hill’s complaint must allege the three necessary elements of this cause of action: “(1) the employment of the attorney or other basis for a duty on the part of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence by the attorney which was the proximate cause of damage to the plaintiff.” Quick, supra, at 121, 568 A.2d at 224 (citations omitted). Where these allegations are adequately set forth, a pro se complaint will not be dismissed just because it is not artfully drafted. See ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986). Any doubts about sustaining preliminary objections in the nature of a demurrer should be resolved in favor of overruling the demurrer. Id. at 138-39, 504 A.2d at 283.

We have obtained a copy of Hill’s handwritten complaint in this matter, and we must disagree with the trial court’s summary conclusion that it fails to state a cause of action. Unlike Hill’s other court papers which have come before us, this complaint is organized, polite, understandable and thorough. Hill devotes one section to each of the three elements of his malpractice claim. Most of the factual allegations are supported by citations to earlier court documents and transcripts. Some of Hill’s claims sound vague or mysterious, but Hill presents several straightforward claims which, if proven true, would establish a claim for legal malpractice.

The best evidence that Hill has stated a cognizable claim in his complaint is the complaint itself:

LEGAL MALPRACTICE COMPLAINT
I, Jeffrey D. Hill, the plaintiff in the above-captioned matter, respectfully present the following in my legal malpractice action against the defendant, attorney Ralph W. Thorne:
1. Attorney Ralph W. “Pat” Thorne was ordered by the Pa.Supreme Court-MD at the end of January 1989 to file a brief on my behalf for 1988 Pa.Supreme Court-MD# 28 Appeal Docket by the beginning of March 1989. He was • my court-appointed appellate counsel for the 1988 Pa.Supreme CourL-MD-# 28 Appeal Docket.

Hill thus satisfies the first element of a malpractice claim, by alleging that defendant Thorne had a legal duty to represent him. The complaint continues:

2. Attorney Ralph W. “Pat” Thorne failed to exercise ordinary skill & knowledge possessed by an average attorney in his representation of me in 1988 Pa.Supreme Couri>MD#28 Appeal Docket.
A. He failed to thoroughly review the stewardship of his predecessors & raise all instances of ineffectiveness of prior counsel (trial & appellate).
B. He failed to raise issues of arguable merit along with the ineffectiveness of trial and 1st appellate counsel for failing to pursue these issues of arguable merit

At this point, Hill sets forth more than ten specific allegations, organized into categories. Some of the factual allegations are difficult to understand, but others, such as Thorne’s failure to challenge allegedly perjured testimony, are clear and supported by citations to trial transcripts. Hill also alleges some very specific legal omissions, the most central being Thorne’s failure to object to testimony under the “Incontrovertible Physical Facts Rule of Evidence.” Hill has thus satisfied the second element of a legal malpractice claim: specifically alleging how his attorney failed to exercise ordinary skill and knowledge.

Finally, Hill alleges in his third section that Thorne’s failure to get his case dismissed for the above reasons “has resulted in my prolonged incarceration & irreversible harm to my reputation as well as my wrongful imprisonment” ... and “mental, physical, & psychological harm & suffering to me.” Hill thus satisfies the third element of a legal malpractice claim: that his attorney’s negligence has proximately caused him damages.

We must disagree with the trial court that Hill’s complaint is too vague and disorganized to state a cause of action. On the contrary, Hill’s complaint is both concise and highly specific, and alleges all the elements which at that time were necessary to state a claim for legal malpractice. This Court has allowed far more imprecise complaints to survive a demurrer. See ei bon ee baya ghananee, supra. The order dismissing Hill’s complaint for these reasons must therefore be reversed, and Hill’s action must be remanded for further proceedings.

III.

We note that our Supreme Court has recently changed the requirements for pleading a legal malpractice claim against one’s criminal defense counsel. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993). Now, in order to bring a malpractice action against his defense attorney, a criminal defendant/plaintiff must establish the following elements: (1) the employment of the attorney; (2) reckless or wanton disregard of the defendant/plaintiff s interest by the attorney; (3) but for the attorney’s conduct, the defendant/plaintiff would have obtained an acquittal or a complete dismissal of the charges; (4) as a result of this failure to acquit or dismiss, the criminal defendant/plaintiff suffered damages; and, (5) defendant/plaintiff has pursued post-trial remedies and obtained relief based upon the attorney’s error. Id. at 250-51, 621 A.2d at 115.

A new rule of law, such as the new pleading requirements announced in Bailey, supra, normally applies retroactively, though the choice is one of judicial discretion and must be made on a case-by-case basis. See Blackwell v. Commonwealth State Ethics Commission, 527 Pa. 172, 183, 589 A.2d 1094, 1099 (1991). In determining retroactivity, we are to consider (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule. Id.

The new, more rigorous pleading requirements of Bailey are designed to serve numerous purposes. By reducing the threat of subsequent malpractice liability, criminal defense attorneys will be better able to represent their clients fearlessly and independently; they will be less likely to compromise their professional judgment and cater to their clients’ potentially unwise demands. Qualified and capable attorneys will not be discouraged from engaging in criminal defense work. Also, public policy should not allow an actually guilty defendant to profit from his crime by attacking peripherally negligent aspects of his defense attorney’s performance. The heightened pleading standards also discourage frivolous litigation, while leaving intact the criminal defendant’s access to other systemic remedies, such as appeals and post-conviction proceedings. See Bailey, supra 533 Pa. at 245-48, 621 A.2d at 112-13.

At least some of these purposes will be well served by applying the new Bailey standard to the present case. Also, by allowing Hill the opportunity to amend his complaint upon remand, he will not be prejudiced by his previous reliance on the older pleading standard. Nor will the administration of justice be unduly burdened by retroactive application of the new Bailey standard, since we are remanding for further proceedings in this case. Therefore, in accordance with our general policy that new appellate rules of law should be applied retroactively, and after considering the specifics of the case before us, we choose to apply the pleading requirements set forth in Bailey to the present case.

The order dismissing Hill’s complaint is reversed, and this case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Our Supreme Court has recently changed the requirements for pleading legal malpractice against a criminal defense attorney. See Bailey v. Tucker, infra. Our present task, however, is to determine if Hill’s complaint was properly dismissed under the pleading standard then in effect.

      . See Maurice H. Brown, Pennsylvania Evidence, A Handbook (1949) at 8. The rule states that a jury will not be permitted “to find as a fact that which is contradicted by the incontrovertible physical facts and hence cannot be true.” Hill alleges that testimony about his altercation at the Muncy Post Office which resulted in his arrest and conviction (and for which Thorne was representing him on appeal) was physically inconsistent with the layout of the Post Office vestibule doors. Hill argues that Thorne should have used this evidentiary rule to get his case dismissed, or at least to get a special jury charge. Had Thorne done so, Hill argues, the testimony of the Commonwealth’s chief witness would have been stricken, or at least called into doubt, and Hill would not have been falsely convicted and imprisoned for a crime he alleges was a frame-up. Hill thus satisfies the requirement that the negligence alleged be the proximate cause of the plaintiff’s injuries. See Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988).

      . To avoid statute of limitations problems, trial courts are directed to reserve their rulings on a defense attorney’s demurrer until the criminal defendant/plaintiff s post-conviction proceedings have been resolved. Id.., n. 13. Even if the criminal defendant/plaintiff does establish ineffective assistance of counsel through the post-trial remedy process, this is not enough in itself to establish the requisite level of culpable conduct now required for a malpractice action. Id., n. 14.


author: ROWLEY, President Judge:

text:
    635 A.2d 191
    MIDWAY TERRACE, INC. v. Cliff FOLEY and Cheryl Foley, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Dec. 16, 1993.

      Zenford A. Mitchell, Aliquippa, for appellants.
    Kathleen J. Poulos, Beaver, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and JOHNSON, JJ.
   ROWLEY, President Judge:

Cliff and Cheryl Foley appeal from the final decree granting appellee Midway Terrace, Inc., possession of Lot 19 in Midway Terrace Mobile Home Park and finding appellants liable for rent and late charges in the amount of $3,562.00. Appellants raise the following issues in this appeal: (1) whether the trial court erred in failing to find that appellee violated section 398.4 of the Mobile Home Park Rights Act (“the Act”), 68 P.S. § 398.1 et seq., by charging appellants full rent for a lot space which is approximately one-half the size of other lots in the park; (2) whether the trial court erred in failing to find that appellants were only required to pay one-half the rent claimed by appellee after accepting appellee’s “counter-offer” in that regard; and (3) whether the trial court lacked subject matter jurisdiction over this action where appellee failed to give proper notice, as required by the Act, before commencing eviction proceedings. After reviewing the record and considering the parties’ arguments, we affirm the final decree.

On January 5, 1990, appellee filed a complaint against appellants with a district justice of the peace seeking judgment for possession and rent due. The district justice found in favor of appellants, and appellee filed an appeal in the Court of Common Pleas. After a bench trial, the trial court issued a decree nisi granting appellee possession of Lot 19 in its mobile home park and directing appellants to pay the rent due and late charges. On January 27, 1993, the trial court denied appellants’ post-trial motions and entered a final decree. Appellants then filed this timely appeal.

We adopt the following findings of the trial court as they are supported by the record:

1. The Plaintiff, Midway Terrace, Inc., operates a Mobile Home Park known as Midway Terrace Mobile Homes Park, in New Sewickley Township, Beaver County, Pennsylvania.
2. The Park consists of 24 lots with roads, water treatment facilities, water distribution facilities, sewage disposal and electric utility distribution system and facilities.
3. The Park was never formally laid out and the size of the lots therein vary.
4. The Defendants, Cliff Foley and Cheryl Foley, have had possession of Lot 19 in Midway Terrace Mobile Home Park since 1986 pursuant to the lease.
5. The Defendants have occupied a mobile home on Lot 19 since 1986. The title certificate of the mobile home is in the names of the mother and step-father of the Defendant, Cheryl Foley.
6. At the time the Defendants, were married, they could not purchase the mobile home with installment payments because they had no credit history.
7. The down payment on the Defendants’ mobile home was made by the mother and step-father as a wedding gift. The Defendants have an oral arrangement with the mother and step-father under which the Defendants make monthly payments to them in the amount of the loan payments the mother and step-father contracted for. When all payments have been made, the title certificate to the mobile home is to be transferred to the Defendants.
8. The Plaintiffs Vice President and Manager of the Mobile Home Park, Emil Vild, prepared a written lease for Lot 19 which the Defendants signed on January 4, 1988. (Plaintiffs Exhibit 1).
9. The lease was for a term of one year ending December 31, 1988 for $1,560.00 payable in monthly installments of $130.00 and contained a provision converting the terms to month to month at the expiration of the initial term, reserving to the Plaintiff the right to increase the rent upon thirty (30) days advance notice.
10. At the time the lease was negotiated, there was no discussion between the parties as to the size of Lot 19 and the writing does not describe Lot 19 in any manner other than lot number.
11. Sometime in June 1988, a dispute occurred between the Defendants and the tenants occupying adjoining Lot 23 as to the location of the boundary line between the two lots.
12. The Park Manager, Emil Vild, resolved the dispute by placing a stone marker to establish the boundary line. As a result of Mr. Vild’s action, the size of Lot 19, as it had been used by the Defendants before the dispute, was reduced. The size of Lot 19 has been approximately one-half the size of other lots in the park since that time.
13. Following the establishment of the boundary line, Mr. Vild unilaterally reduced the monthly rent on Lots 19 and 23 to one-half. He sent a notice to the Defendants (Defendants’ Exhibit A) that, effective July 1, 1988, their monthly payment would be $64.50, including charges for refuse removal, water monitor and discount.
14. By written notice, the Defendants were advised by Mr. Vild that future rent would be determined by ‘home count’ and not lot size. The notice indicated that, effective September 1, 1989, the Defendants’ rent would be the same as other home owners in the park — $144.00, including refuse charge. The notice as [sic] mailed by Certified Mail and the Return Receipt was signed by the Defendant, Cheryl Foley, and delivered on July 29, 1989.
15. The Defendants paid $67.00 in early September 1989 to the Plaintiff.
16. By written notice dated September 15,1989, (Plaintiffs Exhibit 13), Mr. Vild advised the Defendants they failed to pay rent or related charges for the month of September in the amount of $67.00 and they would be evicted if the sum was not paid within thirty (30) days.[] The notice was mailed by Certified Mail and the Return Receipt was signed by the Defendant, Cheryl Foley and delivered on September 16. 1989.
17. Following receipt of that notice, the Defendants made an additional payment to the Plaintiff in September in the amount of $67.00.
18. The Defendants paid no rent in October 1989 because they had paid $67.00 twice in September, contending the Plaintiff could not charge the same rent as a full lot when their lot was about one-half size.
19. Commencing November 1989 and each month thereafter down to the present time, the Defendants’ monthly rental payments have been one-half of that charged by the Plaintiff to all other mobile home owners leasing lots in the Park.
20. On December 6,1989, Mr. Vild mailed written notice to the Defendants by Certified Mail, Return Receipt Requested, postage prepaid, that they had not paid rent or related charges for the month of November 1989 in the amount of $154.00 and would be evicted if that sum was not paid within thirty (30) days. (Plaintiffs Exhibit 4).
21. Plaintiffs Exhibit 4 was returned January 5, 1990 by the Postal Service undelivered after notices to the Defendants on December 6, December 11 and December 21, 1989 and January 4, 1990.
22. On January 4, 1990, Mr. Vild mailed a written second notice to the Defendants by Certified Mail, Return Receipt Requested, of non-payment of rent and that eviction proceedings were being commenced against them immediately. The notice was delivered to the Defendants on January 5, 1990.
23. On January 5, 1990, the Plaintiff filed its Complaint against the Defendants with District Justice Lewis E. Kirchner seeking judgment for possession of Lot 19 and for rent due to that date in the amount of $365.00.
24. The amount of the Plaintiffs monthly rental charges has no relationship to the sizes of lots in the Park but is directly related to other factors such as the cost of providing and maintaining roads, lighting, water service, mail boxes, utilities and similar services to tenants in the park as well as the number of persons residing on the lots in the Park.
25. The Plaintiffs decision to charge the Defendants the full rather than one-half the monthly rent was not made for the purpose of forcing the Defendants to move from the Park.
26. Each time the Plaintiff increased monthly rental charges in the Park since September 1, 1989. [sic] the increases were uniform throughout the Park and the required notices were given prior thereto.
27. The Defendants have not paid rental and late fees claimed by the Plaintiff to be due in the amount of $3,562.00 as of June 1992.

Adjudication (Kunselman, J.), 7/30/92, at 1-5 (footnote added).

Appellants first contend that appellee failed to comply with the Act by charging them full rent for a lot which is approximately one-half the size of other lots in the park. The section of the Act upon which appellants rely provides, in relevant part, “All rules or rental charges shall be uniformly applied to all mobile home residents or prospective mobile home residents of the same or similar category.” 68 P.S. § 398.4 (emphasis added). Appellants argue:

The Appellants in this case are not and cannot be considered as being in the same category as other mobile home residents in the same park. The Appellants are denied one half Qk) the same property interest as other residents in the same park, and therefore, cannot be considered equal to other residents receiving double the Appellants [sic] space at the same rent demanded by the Appellee. The Appellee’s charges cannot be uniform if the Appellants are not of the same category as other residents of the park who receive double the space at the same rent.

Appellants’ Brief at 15.

Our review of the statutory language and the legislative history, as well as our review of similar statutes in other states, provides no guidance as to what the legislature meant by the phrase “mobile home residents or prospective mobile home residents of the same or similar category.” However, we conclude that the legislature did not intend to require mobile home park owners to base their rental charges on the same square footage cost for all of the lots in the park.

First, when attempting to ascertain the intent of the legislature, we may consider the purpose of the statute, as well as the mischief to be remedied and the object to be obtained. See 1 Pa.C.S. § 1921(c). With this in mind, we consider the following:

The purpose of [the Mobile Home Park Rights Act] is to give special protection to mobile home owners in mobile home parks. One reason for the distinction between mobile home park owners and other landlords is the hybrid type of property relationship that exists between the tenant who owns the home and the landlord who rents only the lot on which the mobile home sits. In most instances, a mobile home owner in a park is required to remove the wheels and anchor the home to the ground in order to facilitate connections with electricity, water and sewerage. Thus it is only at substantial expense that a mobile home can be removed from a park with no ready place to go. The legislature, while recognizing the right of the mobile home park owner to establish and publish reasonable rules and regulations relating to tenants in the park, has sought to prevent arbitrary evictions at a substantial expense to park residents.

Malvern Courts, Inc. v. Stephens, 275 Pa.Super. 518, 522, 419 A.2d 21, 23 (1980) (footnote omitted). The result sought by appellants, that is, a requirement that park owners base rental charges on the square foot area of each lot, will in no way further the goal of preventing arbitrary evictions and the resulting expenses to park residents.

Moreover, we presume that the Legislature “does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1). If we were to conclude that the legislature intended that rental charges vary among lot sizes, absurd and unreasonable results could follow. First, the evidence reveals, and the trial court found, that appellee’s rental charges are not related to the sizes of the lots, but rather, to factors such as “the cost of providing and maintaining roads, lighting, water service, mail boxes, utilities and similar services to tenants in the Park as well as the number of persons residing on the lots in the Park.” Trial Court Opinion at 5. There is no evidence in the record from which we could conclude that the size of the lot is a relevant basis upon which to calculate rent. Therefore, to conclude that rent must vary with the size of the lot would be unreasonable.

In addition, we agree with appellee that absurd consequences would result because the courts “would be required to adjust and calibrate the mobile home lot rents of ‘mobile home park residents’ omthe basis of lot size and other attributes of desirability.” Appellee’s Brief at 18. While appellants wanted to pay less rent because of their lot size, another resident might want to pay less rent because of the location of his or her lot. Similarly, other residents might want to pay less rent because they have unsatisfactory views, or they live in high traffic areas, or they are subject to undesirable noises or odors because of the locations of their lots. There are a multitude of factors upon which residents could argue that rent should be based. The Act does not require owners of mobile park homes to evaluate those factors and calculate rent accordingly.

Furthermore, the legislature specifically stated that rules and rental charges shall be uniformly applied to residents or prospective residents of the same or similar category. If the legislature had intended that rental charges be based on physical characteristics of mobile home park lots, it could have required that rules and rental charges be uniformly applied to all mobile home park lots of the same or similar category. The Act does not set forth factors which park owners must take into consideration in determining rental charges. The Act only requires that mobile home park owners not discriminate among residents or prospective residents of the same or similar category. Contrary to appellants’ assertion, the Act does not require park owners to distinguish among residents who lease different sizes, shapes and locations of lots.

Additionally, although the Act prohibits owners or operators of mobile home parks from applying rules and rental charges differently among residents of the same or similar category, it does not require the converse. That is, the Act does not require owners or operators to apply rules and rental charges differently among residents of different categories, as long as residents of the same or similar category are treated the same. Therefore, contrary to appellants’ assertions, the Act does not require park owners to calculate rent for each lot based on the square foot area of the lot.

In conclusion, we do not construe the phrase “residents of the same or similar category” to relate to the size of the residents’ lots. Appellee was therefore not required to reduce appellants’ rent, and appellants were not excused from paying full rent for their lot.

Appellants next argue that the trial court erred in failing to find that they were only required to pay one-half rent after they accepted appellee’s counter-offer in that regard. Their reasoning is as follows:

When the Appellee offered one half of the space at one half the rent that was originally proposed to the Appellants in their January 4, 1988 lease agreement on June 20 [sic] 1989 ..., the Appellee made a counter-offer in [sic] which the Appellants had the power to accept or decline.... The Appellants accepted the Appellee’s counter-offer and performed on that agreement by paying one half of the rent of other mobile home residents in the park. The Appellee attempted to rescind the lease contract between the parties on July 28, 1989, and proposed a new offer to the Appellants.
However, the Appellants never accepted the Appellee’s new offer issued July 28, 1989. Instead, the Appellants made a counter-offer to the Appellee by sending a one half rent payment on September 1, 1989. This amount was accepted by the Appellee....

Appellants’ Brief at 16-17 (footnotes omitted). Appellants’ argument is meritless for the following reasons.

As an initial point, we agree with the trial court’s conclusion that “[w]hen the lease was negotiated, the parties did not bargain for a lot of any particular size.” Adjudication at 18. The record reveals that appellee agreed to lease Lot 19 to appellants and that there was no discussion as to the size of that lot. Cheryl Foley herself testified that the size of the lot was never discussed, that she did not inquire about the size of the lot, and that the adjacent lot was already occupied when she and her family moved onto Lot 19. The only discussion which occurred prior to the dispute with regard to the size of the lot was when Mrs. Vild told appellants where to cut the grass.

Additionally, appellants’ characterization of appellee’s unilateral decrease in the rent as a counter-offer which they accepted is misplaced. The lease clearly provided that at the expiration of its one-year term, the tenancy would be deemed a month to month tenancy and that appellee would have the right to increase the rent upon thirty days advance notice. At the time appellee decreased the rent, appellants were occupying their lot as month to month tenants. Appellee was not required to obtain their permission or agreement to either decrease or increase the rent. When appellee unilaterally decreased the rent, there was no binding contract between the parties with regard to the amount of the rent subsequent to December 31, 1988. Similarly, when appellee increased the rent in September of 1989, appellants’ agreement with the new rental charge was not required. Accordingly, appellee had the authority to increase the rent in September of 1989 pursuant to the lease agreement. By increasing the rent in September of 1989, as it was entitled to do, appellee was not making an offer to appellants. Therefore, appellants’ payment of only one-half the rent was not a “counter-offer” which appellee accepted. We reject the assertion that appellee was required to forego the one-half payment in order to preserve its claim for full payment where appellee clearly pursued that claim.

Furthermore, we disagree with appellants’ contention that the trial court erroneously relied on Reading Terminal Merchants Ass’n v. Samuel Rappaport Assocs., 310 Pa.Super. 165, 456 A.2d 552 (1983). This Court’s discussion in Reading Terminal provides support for the trial court’s decision. See Adjudication at 18-21. Appellants’ mere assertion that that case is distinguishable because it involved commercial rather than residential leases is conclusory and unpersuasive.

Finally, appellants contend that the trial court did not have subject matter jurisdiction over this action because appellee did not comply with the notice provisions of the Act. Because we conclude that proper notice was given to appellants, we need not decide whether an owner’s failure to comply with the notice provisions of the Act divests the court of jurisdiction over an eviction action.

Section 398.3 of the Act, entitled “Evictions,” provides in relevant part the following:

(a) A mobile home resident shall only be evicted for any of the following reasons:
(1) Nonpayment of rent.
(b) A mobile home resident shall only be evicted in accordance with the following procedure:
(2) Prior to the commencement of any eviction proceeding, the mobile home park owner shall notify the mobile home park resident in writing of the particular breach or violation of the lease or park rules by certified or registered mail, (i) In the case of nonpayment of rent, the notice shall state that an eviction proceeding may be commenced if the mobile home resident does not pay the overdue rent within 20 days from the date of service if the notice is given on or after April 1 and before September 1, and 30 days if given on or after September 1 and before April 1 or an additional nonpayment of rent occurring within six months of the giving of the notice may result in immediate eviction proceedings.

68 P.S. § 398.3.

The record reveals that on September 16, 1989, appellants received from Mr. Yild a notice stating that they had failed to pay rent or related charges for the month of September in the amount of $67. The notice further stated: “You will be evicted if this sum is not paid within [20] [30] days, or if you again fail to pay rent when due within (6) months of this notice.” As appellants’ observe, the notice sent by Mr. Vild did not specify whether they would be given a twenty day or a thirty day cure period. Nonetheless, under the circumstances of this case, the notice was not invalid due to Mr. Vild’s failure to specify a cure period of either twenty days or thirty days. Appellants were clearly under notice that they could be evicted if they again failed to pay their full rent within the following six-month period.

After receiving the notice on September 16, 1989, Mrs. Foley sent another payment of $67. Although appellants contend in their appellate brief that that payment was rent for the month of October, that assertion is belied by Mrs. Foley’s testimony that she sent the second $67 payment in order to pay full rent in September. Nonetheless, appellants are not entitled to relief regardless of whether they intended the second payment in September to be for September’s rent or for October’s rent. If the second payment was for the rest of September’s rent, they cured their default. However, they failed to pay any rent in October and they failed to pay their full rent in November and December. If, on the other hand, the second payment in September was for October’s rent, appellants not only failed to cure the default, they also failed to pay full rent in October, November, and December. Within six months of the receipt of the notice on September 16, 1989, appellants again failed to pay their full rent. Therefore, they were subject to immediate eviction proceedings.

Although Mr. Vild subsequently sent another notice on December 6, 1989, entitled “First Notice of Rent Non-Payment,” stating that appellants would be evicted if November’s rent was not paid within thirty days or if they again failed to pay their rent within six months, that notice was unnecessary under the Act. Because appellants again failed to pay their full rent within six months of receipt of the notice on September 16, 1989, appellee was entitled to commence eviction proceedings immediately.

Furthermore, appellants cannot successfully argue that they were misled by the notice Mr. Vild sent on December 6, 1989, because it was returned to Mr. Vild when appellants failed to respond to the four notices sent by the post office. For these reasons, appellants were properly notified on September 16, 1989 that if they again failed to pay their rent within six months they would be evicted. When appellants again failed to pay their full rent, appellee properly commenced eviction proceedings against them. Because proper notice was given on September 16, 1989, the question of whether jurisdiction is lacking when proper notice is not given, although interesting, is moot.

For the above reasons, we affirm the final decree in favor of appellee.

Final decree affirmed.

      . For the sake of accuracy, we note that the notice stated that appellants would be evicted if the amount was not paid within either twenty or thirty days.

      . We note that appellants do not claim that they were provided with less of these services than other residents.

      . The notice was apparently drafted so that it could be used throughout the year as it provided for both twenty day and thirty day cure periods. However, Mr. Vild failed to specify which period was applicable.

      . Mr. Vild’s failure to specify either a twenty day or a thirty day cure period would be relevant if the twenty day cure period applied and appellants paid their rent between the twentieth day and the thirtieth day. In that situation, appellants could argue that they had not been given proper notice that they were required to pay their overdue rent within twenty days. However, in the present case, appellants never paid their overdue rent, and eviction proceedings were not commenced for more than three months after appellants received the notice on September 16, 1989.