text:
    452 A.2d 820
    COMMONWEALTH of Pennsylvania, Appellant, v. Dale R. MILLER.
    Superior Court of Pennsylvania.
    Submitted May 24, 1982.
    Filed Nov. 19, 1982.

      Stuart Mark Bliwas, Assistant Attorney General, Harrisburg, for Commonwealth, appellant.
    David Alvin Whitney, Ridgway, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

The Commonwealth appeals here from an order issued in the Elk County Court of Common Pleas. That order sustained an appeal from a conviction in Magistrate’s Court for purchasing a hunting license when hunting privileges were revoked. The issue presented here is the validity of a supersedeas of the license revocation. The court below held that the supersedeas was effective and thus enforcement of the revocation was barred. However, since the court did not have jurisdiction to issue the supersedeas, it was of no effect, revocation enforcement was permissible, and we reverse.

The Pennsylvania Game Commission contends, correctly, that exclusive jurisdiction over appeals from its orders lies with the Commonwealth Court. Therefore, they argue, a supersedeas of the license revocation issued by a court other than the Commonwealth Court is void and the Commission is free to enforce the revocation.

This case has an involved procedural background. In April, 1979, the Pennsylvania Game Commission revoked the hunting and trapping privileges of appellee, Dale Roger Miller, for two years. In May of that year, Miller appealed the revocation order to the Elk County Court of Common Pleas. On May 14, President Judge Greiner set a hearing date and granted a supersedeas of the revocation pendente lite. The Commonwealth filed a motion to dismiss on June 21, 1979, based on a lack of jurisdiction in the Court of Common Pleas. The following day, an order was issued by President Judge Greiner transferring the appeal to Corn-monwealth Court. On August 16, 1979, Miller purchased a hunting license.

On January 31, 1980, a citation was filed with Justice of the Peace Friedl of Elk County against Miller for violation of § 316(g) of the Game Law: purchasing a hunting license while his hunting privileges were revoked. At a hearing on May 8, 1980, Miller was found guilty and fined $40 plus $16 costs.

Miller appealed this conviction to the Court of Common Pleas. On October 9, 1980, President Judge Greiner entered an order sustaining the appeal on the basis that the superse-deas he had granted on May 14, 1979 was in effect at the time of the violation on August 16. The Commonwealth’s appeal from that order is now before us.

Two incontrovertible statements of law combine to determine the decision in this case. First, the Court of Common Pleas had no jurisdiction to hear the appeal of the license revocation. Second, any act taken by a court without proper jurisdiction is null and void.

When a Judge exercises a power not conferred upon him by law, his act is more than a mere irregularity, which can be waived by Defendant; it is a nullity.

Moschzisker, Ch.J., Commonwealth v. Hall, 291 Pa. 341 at 354, 140 A. 626 at 631 (1927).

The supersedeas issued by President Judge Greiner was, therefore, without legal force; it could not halt the Game Commission or the Justice of the Peace from enforcing the revocation; nor could it protect Miller in his unauthorized purchase of a new license.

We are not unmindful of the potential for a certain unfairness in allowing a person to be punished by one court of the Commonwealth for acting within bounds made permissible by another court of this Commonwealth. Here, Miller could have believed that the supersedeas made it lawful for him to purchase the license. Indeed, a Common Pleas President Judge thought that the supersedeas was in force on August 16 and that the purchase of the license was consequently lawful. Nonetheless, other considerations must prevail.

An important principle of our constitutional form of government is that organs of the government must not arrogate to themselves powers which have not been lawfully assigned to them. The legitimacy of governmental acts must- be preserved; and this is advanced by treating as void all illegitimate governmental acts. A proper functioning of this system in the courts mandates the strict disapproval of judicial acts committed outside their jurisdictional sphere. They are to be given no legal effect.

We reverse and remand for trial de novo in the Court of Common Pleas.

      . We are aware of the jurisdictional question that surfaces in this appeal. At first blush, it appears this case should be before the Commonwealth Court: 42 Pa.C.S.A. § 762(a)(2).
      However because appellee failed to object to this court’s lack of jurisdiction, our jurisdiction has been perfected, and we have discretion either to decide the case on the merits or transfer it to Commonwealth Court. 42 Pa.C.S. § 704(a); Pa.R.A.P. 741(a); Commonwealth v. Sensi, 287 Pa.Super. 452 at 454, 430 A.2d 691 at 692 (1981).
      We follow the same line of reasoning as was used in Sensi, but come to the opposite conclusion due to the particularities of this case. While this case does seek the enforcement of a regulation— usually a matter in which the Commonwealth Court is well versed— the sole issue in this case is the legal effect of a supersedeas issued by a Common Pleas Court without valid jurisdiction.
      For this reason, and also as a matter of judicial economy, we exercise our discretion and retain jurisdiction.

      . 42 Pa.C.S.A. § 763.

      . This was pursuant to the Game Law, Act of 1937, P.L. 1225, as amended, 34 P.S. § 1311.315(1).
      Appellee has not filed a brief in this case.

      . That appeal was eventually dismissed as of course due to Miller’s failure to file his brief and reproduced record.

      . A court always has jurisdiction to determine whether it has jurisdiction. . During the period of such a determination, a supersedeas issued by the court will be valid even if it subsequently determined that the court had no jurisdiction to hear the case on its merits. Commonwealth v. Ryan, 459 Pa. 148, 327 A.2d 351 (1974). This was not the situation here. President Judge Greiner was considering the jurisdiction issue only for one day, June 21, and that issue had not even been raised on May 14 when the supersedeas was issued. Even if the contrary were true, it would no longer have been so on August 16 when Miller bought the license. By that time, the case had already been transferred, for lack of jurisdiction, to the Commonwealth Court.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    452 A.2d 822
    COMMONWEALTH of Pennsylvania v. Randolph W. ALBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 25, 1982.
    Filed Nov. 19, 1982.

      Joseph Scott O’Keefe, Norristown, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This appeal arises from the defendant’s summary offense conviction June 30, 1981 at a trial de novo in the Common Pleas Court of Philadelphia for violating Section 3102 of the Pennsylvania Motor Vehicle Code.

First, the defendant alleges that his conviction is invalid because he was charged with violating one section of the code, Section 3102, but was actually convicted of violating another provision of the code, Section 6308. Second, the defendant alleges that there was insufficient evidence to support his conviction.

For the following reasons, we quash this appeal instead of addressing the above issues on their merits.

The general rule is that “a defendant may appeal only from a final judgment of sentence and an appeal from any prior order will be quashed as interlocutory.” Commonwealth v. Myers, 457 Pa. 317, 319, 322 A.2d 131, 132 (1974); Commonwealth v. Nugent, 291 Pa.Super. 421, 423, 435 A.2d 1298, 1299 (1981).

As we pointed out in a recent case, entry of the judgment of sentence is a two-step process involving both imposition of sentence and entry on the docket. Commonwealth v. Nugent, supra, 291 Pa.Super. at 425 n. 8, 435 A.2d at 1300 n. 8.

In the case at bar, it is apparent that only the second step was taken.

A docket entry dated June 30, 1981 indicates that the defendant was adjudged guilty and was to pay $44 in fines and costs. However, nothing in the record shows that the trial judge sentenced the defendant in court or executed an order for judgment of sentence. Therefore, no judgment of sentence has been entered, no final order has been issued, and we are without jurisdiction to hear this appeal.

Furthermore, if we possessed the jurisdiction to hear this case, we would remand because of the court below’s failure to instruct the defendant on his right to file post-verdict motions under Pennsylvania Rule of Criminal Procedure 1123(c).

That rule states:

(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of the right to file post-verdict motions of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.

The Comment to Rule 1123 is explicit that “[p]ost-verdict motions must be decided before sentencing, because the appeal lies from the final order of the trial court, which ordinarily includes sentence.”

Confusion about whether or not Rule 1123 applies to de novo trials in summary cases was recently resolved by the revision of the Comment to Rule 1123 by the Supreme Court, and by our decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

The revised Comment states, “This rule is intended to require post-verdict motions in the court of common pleas after a finding of guilt at a de novo trial in a summary case.” In Koch, our court reached the identical conclusion.

Therefore, the defendant must be given a chance to file post-verdict motions under Rule 1123 before sentencing occurs.

Appeal quashed.


author: BROSKY, Judge: BECK, Judge,

text:
    452 A.2d 824
    Daniel R. STRATFORD v. John E. BOLAND and Dauphin County Industrial Development Authority. Appeal of John E. BOLAND.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 18, 1983.

      Jerome T. Foerster, Harrisburg, for appellant.
    Albert Z. Bogert, Mechanicsburg, for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

Appellee Stratford commenced this action by filing a mechanic’s lien claim alleging that appellant Boland owed him $9,881.54 as payment for architectural services rendered by Stratford. Prior to trial, the parties agreed that upon entry of a bond in the amount of $11,881.54, the lien would be stricken off and fully discharged as a lien against the property. The bond was filed and the lien was discharged. A trial was held and the jury returned a verdict in favor of appellee in the amount of $7,200. Motions for new trial and judgment n.o.v. were filed and denied and this appeal followed. We reverse.

Appellant contends that Mr. Stratford did not meet his burden of proof at trial and that, in any case, appellee could not properly file a mechanic’s lien in this case because the underlying contract was not made with the owner of the subject property.

We can readily dispense with appellant’s claim that a mechanic’s lien could not have been properly imposed on the property because the contract in question was not made with the property’s owner.

Although the contract was made before appellant acquired an interest in the property, the lien claim was filed after he had acquired an equitable interest in it.

The contract upon which Mr. Stratford bases his claim was made with the person, who at the time the lien was filed, had equitable interest in the property. An equitable interest is such that its holder is considered an owner for purposes of the Mechanic’s Lien Law. See 49 P.S. § 1201, defining “owner”; McClure v. Fairfield, 153 Pa. 411, 26 A. 446 (1893). We believe that since Mr. Boland was the owner at the time the lien was filed, and was the person with whom Mr. Stratford contracted, that the claim could be validly filed against his property. In this respect, we agree with Edwards v. Stevens, 4 Pa.D. & C.3d 137 (1977) (citing Weaver v. Sheeler, 124 Pa. 473, 17 Atl. 17 (1889)), which held that ownership at the time of the filing of the lien was sufficient if the then owner had contracted with the claimant.

We turn now to appellant’s second claim. To recover under the Mechanic’s Lien Law as an architect, Mr. Strat-ford must have proven that pursuant to his contract with Mr. Boland, he played a supervisory role in the construction.

The Mechanic’s Lien Law provides a right to a mechanic’s lien to a contractor who is owed a debt for labor or materials furnished in the erection or construction, or alteration or repair of property. 49 P.S. § 1301.

The act includes in its definition of contractor:
architect[s] who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair.

The lien claim filed by Mr. Stratford contained the allegation that the agreement was an oral one which provided that he would perform the following services: drafting and preparation of architectural drawings; architectural services and the observation of the construction thereof. (Emphasis added.)

Appellee argues that use of the word, “observation” instead of “supervise” does not preclude a finding that he in fact contracted to and did supervise the job. We agree that the choice of words in itself need not be dispositive if the claim is substantively that he supervised the work pursuant to contract. However, his allegation that he “observed” construction itself does not denote that he played any active role during construction. It certainly does not suggest that he “had or exercised the charge and oversight of” the construction. (See definitions of “supervise” and “superintend”, Webster's Seventh New Collegiate Dictionary.)

Furthermore, even if we were to ascribe to appellee’s pleading an allegation that he supervised the work, we would nevertheless find that the allegation was not proven at trial.

We, of course, will view the evidence in the light most favorable to appellee, the verdict winner. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979).

In his brief, appellee outlines the several services he performed for appellant. They apparently included, in addition to the preparation of drawings, visits to the site prior to building, attendance at a zoning board meeting and attendance at a post-construction tour. None of the activities, however, constitutes the management of the actual construction of the building. In that regard, appellee cites visits he made to the site during construction. His testimony was that he “periodically” made inspections during construction and that his usual procedure is to visit a site once a week. He could not recall the dates or number of visits he made.

The comment to 49 P.S. § 1201(4), definition of contractor, states that it was intended to declare and clarify existing decisional law. The note refers specifically to Alan Porter Lee, Inc. v. Du-Rite Products Company, Inc., 366 Pa. 548, 79 A.2d 218 (1951).

In Alan Porter, the Supreme Court said that an architect cannot maintain a mechanic’s lien merely for drawing plans. The result is otherwise, however, if

he is employed to be on the ground during the erection of the building, to make designs for every part, to direct the execution of the same by the various mechanics, to examine the material employed, to advise with the owner of the building in contracting for every portion of the work or materials, to. examine all accounts, etc.

Id., 366 Pa. at 551, 552, 79 A.2d at 219. See also Cotter v. McArdle, 423 Pa. 632, 223 A.2d 718 (1966) (dissent by Roberts, J.).

The Alan Porter opinion cited with approval the following summary of the law. “He [an architect] can recover for his plans and drawings in this proceeding only because of the fact that they are incidental to and enhance his work of superintending and supervising the actual construction. Id. 366 Pa. at 552, 79 A.2d at 220. The court found testimony by the architect that he “inspected” the site to see if construction conformed to the drawings and conferred with the contractor to be “meager” and insufficient to be considered. supervisory.

Based on the afore discussed testimony, we too find insufficient evidence of supervision to satisfy the demands of the Mechanic’s Lien Law.

We have considered only the evidence supporting the verdict as we must in reviewing the denial of a motion for judgment n.o.v. See Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). Even considering it in the light most favorable to the verdict winner, we have found it insufficient. Finding this to be the case, we reverse and order imposition of judgment n.o.v. See Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970).

Judgment reversed and case remanded for new trial. This court relinquishes jurisdiction of this case.

McEWEN, J., concurs in result.

BECK, J., files concurring opinion.

BECK, Judge,

concurring:

The initial issue for consideration in the present action is the effect of the parties’ agreement to substitute a bond for a mechanic’s lien claim which had been entered upon appellant Boland’s real estate. In accordance with the agreement, the bond was filed and the lien was stricken. The legal effect of this substitution is covered by the Mechanics’ Lien Law of 1963 (49 P.S. § 1510) which states that the entry of security in proper amount entitles the owner to have the mechanic’s lien discharged, and the release of the premises follows as a matter of course. See also 12 Standard Pa. Practice, Mechanics’ Lien, 51 at 201-2 (rev. ed. 1964); Sulzer v. Ross, 12 Pa.Super. 206 (1899); Schellenbetrager v. O’Donnell, 44 Pa.Super. 43 (1910).

Since the lien against appellant’s property was discharged, it is not necessary to reach the question whether appellee Stratford, who has a claim for reimbursement for architectural services, meets the requirements of “Contractor” within the meaning of the statute.

The question which remains, however, is whether Strat-ford, who has sued upon the mechanic’s lien in his pleadings, can recover in contract without having averred contract in those pleadings. While it is true that a creditor may pursue the ordinary remedy of a creditor by bringing an action on the debt, since the remedies of the lien and the action on the debt are concurrent and cumulative, in this instance appellee Stratford has not proceeded correctly. In Rees, Weaver and Co. v. M.B.C. Paper Mill Corp., 267 Pa.Super. 148, 406 A.2d 562 (1979) this Court held that an action based on an unperfected mechanic’s lien claim was properly stricken, and the matter was not required to be treated as an action in assumpsit.

Appellant argues finally that its action was in assump-sit, and that for this reason the lower court should not have stricken the judgment as based on an unperfected mechanics’ lien claim. The record belies this argument. Appellant’s complaint is captioned: “Action to Obtain Judgment upon Mechanics’ Lien Claim.” An action to obtain judgment upon a mechanics’ lien claim is an action in rem, not a personal action on a contract. Costanzo v. Chianese, 177 Pa.Super. 414, 110 A.2d 802 (1955); Hoffman Lumber Co. v. Mitchell, 170 Pa.Super. 326, 85 A.2d 664 (1952); Comment to 49 P.S. § 1702 (1965). While an action in assumpsit for labor and materials and an action to enforce a mechanics’ lien claim for the same labor and materials are concurrent and cumulative remedies, appellant chose to pursue only the latter remedy. Appellant having made this choice, the lower court properly struck off the claim, since “[t]he proceeding for enforcement of the lien is entirely dependent upon the existence of the lien, and if there is no lien, or it is divested or stricken off, the enforcement proceeding falls with it.” 12 Stand.Pa. Prac.—Mechanics’ Lien § 223 at 204 (rev. ed. 1964).

We point out, however, that a compulsory nonsuit in proceedings to enforce a lien does not bar a subsequent action on the debt. A plaintiff who fails to recover on a mechanic’s lien because of a defect in the lien may resort to an action in debt against the same defendant. 12 Standard Pa. Practice, Mechanics’ Lien § 51, at 205; Contractors Lumber and Supply Co. v. Quinette, 185 Pa.Super.Ct. 66, 137 A.2d 841 (1958).

      . Appellee argues that because the lien was discharged prior to trial, he need not have complied with this requirement of the Mechanic’s Lien Law. He suggests that his burden was limited to those facts he would have to prove in an assumpsit case. The lower court opinion suggests that it, too, believes that the discharge of the bond effected such a change.
      In Scheilentrager v. O’Donnell, 44 Pa.Super. 43 (1910), this court explained that when a bond is filed, the averment in the lien, affidavit and bond constitute the statement of plaintiffs claim. The Schellen-trager court said that judgment and execution would follow as in an action at common law. However, we do not believe that resort to common law procedures as to judgment changes the substantive burden of proof borne by a plaintiff. The Scheilentrager opinion suggests to us that since the claim is contained in the lien it is substantively the same claim that a plaintiff would have to prove if a bond was not entered.
      See also Rees, Weaver & Com., Inc. v. M.B.C. Paper Mill Corp., 267 Pa.Super. 148, 406 A.2d 562 (1979), where we rejected a claim that an action captioned “Action to Obtain Judgment upon Mechanic’s Lien Claim” was actually an assumpsit action. We noted that the appellant in that case chose to pursue only the mechanic’s lien claim, although an assumpsit claim could have been pursued.
      Here, appellee chose to pursue a mechanic’s lien claim with its advantage to him of the lien on the subject property. That lien was replaced by a bond, but the nature of the action was not changed. Only the res was changed. It would be unfair to permit appellee to benefit from the lien and bond, and not have to meet the special burdens of the law that convey those benefits.

      . Act of August 24, 1963, P.L. 1175, No. 497; 49 P.S. § 1101, et seq.

      . We note that when the mechanic’s lien was discharged, the claim remained on the judgment index. Since the discharge of the lien should ordinarily result in striking the claim on the index, we con-elude that failure to strike the claim was an irregularity that should be overlooked.


author: WIEAND, Judge:

text:
    452 A.2d 827
    COMMONWEALTH of Pennsylvania v. Frank GRABOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1982.
    Filed Nov. 19, 1982.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Vram Nedurian, Jr., District Attorney, Media, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Frank Grabowski was convicted in separate trials of theft by receiving a stolen 1977 Chevrolet pickup truck and dealing with a 1978 Cadillac Seville with falsified numbers. On direct appeal, he contends that the evidence was insufficient to sustain these convictions. He also contends that the falsified Cadillac vehicle identification number (VIN) was obtained by police as a result of an unlawful search and that the number, as well as evidence seized pursuant to a search warrant issued thereafter, should have been suppressed. There is no merit in these contentions, and the judgment of sentence, therefore, will be affirmed.

When appraising the sufficiency of evidence, we apply a two-step analysis. First, we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict. Next, we inquire whether that evidence, together with all reasonable inferences drawn from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Carter, 304 Pa.Super. 142, 450 A.2d 142 (1982); Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Allen, 287 Pa.Super. 88, 94, 429 A.2d 1113, 1115 (1981).

A Chevrolet truck owned by Acme Newspaper Company was stolen from Acme’s parking lot in Lower Merion Township, Montgomery County, sometime between December 29, 1978 and January 2, 1979. Subsequently, the truck was observed by witnesses in the possession of appellant. On March 7, 1979, a state policeman observed the vehicle on Baltimore Avenue in East Lansdowne, Delaware County, where it had been parked in close proximity to appellant’s apartment. It then bore Pennsylvania license plate number CB-41314. This registration had been issued for a 1965 Ford pickup truck registered in the name of Frank Grabow-ski. The validating sticker on the license plate had been backed with metal and appeared to have been cut from another license plate. A subsequent search of appellant’s apartment produced the keys to the Chevrolet truck and also the registration and certificate of title for the aforementioned 1965 Ford truck. Appellant was not an employee of Acme Newspaper Company and had not been authorized to use its truck.

To prove theft by receiving stolen property, the Commonwealth was required to prove beyond a reasonable doubt that there had been a theft of the truck, that appellant had possession of the truck, and that appellant knew the truck had been stolen or had reason to believe that it had probably been stolen. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Harrison, 289 Pa.Super. 126, 132, 432 A.2d 1083, 1086 (1981); Commonwealth v. Worrell, 277 Pa.Super. 386, 390, 419 A.2d 1199, 1201 (1980), aff’d, 493 Pa. 215, 425 A.2d 741 (1981); Com monwealth v. Phillips, 258 Pa.Super. 109, 112, 392 A.2d 708, 709 (1978). Guilty knowledge, of course, may be established by circumstantial evidence. Commonwealth v. Williams, supra 468 Pa. at 365-66, 362 A.2d at 248-9; Commonwealth v. Henderson, 451 Pa. 452, 455, 304 A.2d 154, 156 (1973); Commonwealth v. Harrison, supra 289 Pa.Super. at 135, 432 A.2d at 1088; Commonwealth v. Worrell, supra 277 Pa.Super. at 391, 419 A.2d at 1201.

The evidence in the instant case was sufficient to prove that appellant had received the Chevrolet truck knowing that it had been stolen or having reason to believe that it had probably been stolen. A jury could infer guilty knowledge beyond a reasonable doubt from the circumstances surrounding his possession of the truck.

The 1978 Cadillac Seville had been taken by appellant to a Sunoco Service Station in East Lansdowne, Montgomery County, where it was left with the proprietor for purposes of finding a buyer. Appellant told the proprietor that the car was owned by a leasing company and gave the proprietor a set of keys and a purported owner’s card. The card appeared to have been issued by the State of New Jersey in the name of “Walter Camper” of Cherry Hill, New Jersey, as owner. Appellant said that he wanted a price of $10,000 for the vehicle. Dennis Harding saw the vehicle, made an offer to buy it, and took it to his shop in order to examine the car more closely. He observed that the manufacturer’s number on the pollution sticker attached to the door post had been partially removed or obliterated. Consequently, he called the state police, made arrangements for them to examine the car and returned it to the Sunoco Station, telling the proprietor that a state trooper would probably arrive later to look at the car.

When Trooper Bollman arrived, he also observed a defaced environmental sticker on the door post. He observed additionally that the vehicle carried New Jersey license plates, number 246-KN6, and that the final digits of the public VIN, which was on the dashboard and visible through the window, were 452749. Bollman then requested that the Cadillac be placed on a lift; and when the proprietor complied, he used a mirror to observe the confidential VIN on the underside of the vehicle. This number did not coincide with the VIN that had been open to view on the dashboard. Instead, the final digits were 452438.

A 1978 Cadillac Seville, VIN 65938Q452438, had been owned by MTM Leasing Corporation of Pennsauken, New Jersey. It had carried New Jersey license plates, number MTM-100, and had been leased to Steven Brownstein, Nar-beth, Pennsylvania on January 22, 1979. This vehicle had been stolen from an apartment complex in Lower Merion Township, Montgomery County, on February 21, 1979.

Further investigation disclosed that the plate bearing the false VIN had been attached to the dashboard by rivets other than those used by the manufacturer. A statement of origin for the vehicle, used to obtain the attached license from the State of New Jersey, was found to contain fictitious information. It recited that the vehicle had been sold by Center City Cadillac, Philadelphia, to Walter Camper, 328 Greenwood Road, Cherry Hill, New Jersey on February 21, 1979. This address was found to be non-existent. Furthermore, the vehicle in question had never been delivered to Center City Cadillac or sold by it to anyone named Walter Camper.

The Vehicle Code, at 75 Pa.C.S.A. § 7103, provides:

(a) A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission, knowing that an identification number has been removed or falsified, is guilty of a misdemeanor of the third degree.
(b) A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission with knowledge that an identification number has been removed or falsified with intent to conceal or misrepresent the identity thereof, is guilty of a felony of the third degree.

Knowledge that an identification number has been removed or falsified is essential to a conviction for violating this section of the statute. Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A.2d 737 (1940). As in cases for receiving stolen property, however, the necessary mens rea can be shown by circumstantial evidence. Cf. Commonwealth v. Williams, supra; Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116; Commonwealth v. Harrison, supra; Commonwealth v. Worrell, supra; Commonwealth v. Stevenson, 242 Pa.Super. 31, 363 A.2d 1144 (1976). The circumstances surrounding appellant’s attempt to sell the Cadillac, including as it did, appellant’s statement to the service station proprietor that the vehicle was owned by Walter Camper, the fact that such purported owner was fictitious, and a partially obliterated number of the vehicle’s readily observable pollution sticker, were sufficient to permit the fact finder to infer the necessary guilty knowledge by appellant.

Appellant argues, however, that the discovery of a falsified VIN was the product of an illegal search and should have been suppressed. The Fourth Amendment of the Constitution prohibits only unreasonable searches and seizures. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To constitute a “search” within the Fourth Amendment, police activity must intrude upon an area or concern wherein the appellant harbored a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Layman, 290 Pa.Super. 244, 434 A.2d 735 (1981).

In general, one’s expectation of privacy in connection with an automobile is significantly less than that relating to one’s home or office. South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Commonwealth v. Holzer, 480 Pa. 93, 103, 389 A.2d 101, 106 (1978). And, “where the alleged illegal activity does not invade the interior of the car, the chances are even greater that no expectation of privacy has been infringed.” Id., citing Commonwealth v. Mangini, 478 Pa. 147, 156-57, 386 A.2d 482, 486-87 (1978).

The examination of the exterior of an automobile is not, for purposes of the Fourth Amendment, a “search”; and generally a warrant therefor is not required. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Commonwealth v. Mangini, supra 478 Pa. at 157, 386 A.2d at 487; Commonwealth v. Best-Bey, 258 Pa.Super. 478, 393 A.2d 459 (1978). See generally Commonwealth v. Mimms, 471 Pa. 546, 555 n. 1, 370 A.2d 1157, 1161 n. 1, reversed and remanded on other grounds, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Nix, J., concurring and joined by O’Brien, J.) See generally Commonwealth v. Vernille, 275 Pa.Super. 263, 271 n. 2, 418 A.2d 713, 717 n. 2 (1980).

Whether the inspection of vehicle’s VIN by police constitutes a “search” has frequently been decided by the federal courts. The Court of Appeals for the Fifth Circuit has determined that “the examination of a vehicle for the purpose of inspecting the VIN plates or identification-number inscriptions is not a search for purposes of the Fourth Amendment,” provided there are “legitimate reasons to suspect criminal activity [is] afoot.” United States v. Forrest, 620 F.2d 446, 454-55 (5th Cir.1980). See: United States v. Duckett, 583 F.2d 1309 (5th Cir.1978); United States v. Sherriff, 546 F.2d 604 (5th Cir.1977), reh. denied, 549 F.2d 204 (5th Cir.1977); United States v. Williams, 434 F.2d 681 (5th Cir.1970), cert. denied, 401 U.S. 1011, 91 S.Ct. 1262, 28 L.Ed.2d 547 (1971); United States v. Polk, 433 F.2d 644 (5th Cir.1978); United States v. Johnson, 413 F.2d 1396 (5th Cir.1969), on rehearing, 431 F.2d 441 (5th Cir.1969). Most circuit courts which have addressed the issue are in accord. See: United States v. Brown, 535 F.2d 424 (8th Cir.1976) (with legitimate reasons, checking confidential VIN under the car is not an unreasonable search); United States v. Ware, 457 F.2d 828 (7th Cir.1972), cert. denied, 409 U.S. 888, 93 S.Ct. 139, 34 L.Ed.2d 145 (1972) (no warrant required to check confidential VIN even after towing car to police garage); United States v. Zemke, 457 F.2d 110 (7th Cir. 1972), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972). See also: United States v. Powers, 439 F.2d 373 (4th Cir.1971), cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971) (inspection of a VIN, where there is a legitimate reason to do so, is a reasonable search); United States v. Self, 410 F.2d 984 (10th Cir.1969).

Similarly, those state courts which have addressed the issue have held that there is no reasonable expectation of privacy in connection with a vehicle’s VIN, particularly where the vehicle need not be opened to inspect it. In People v. Brooks, 405 Mich. 225, 274 N.W.2d 430 (1979), the Supreme Court of Michigan ruled that checking a confidential VIN under a car, without entering it, even after bringing it to the police garage, was not a search: “There is no reasonable expectation of privacy in the VIN itself. All such numbers are on the outside of the automobile, or they are in plain view. No entry is required to read the VIN. The means taken by police to read this VIN did not invade a constitutionally protected area.” 405 Mich, at 244, 274 N.W.2d at 436. In Wood v. State, 632 S.W.2d 734 (Tex.Cr.App.1982), the Texas court held that even opening a car door to view a VIN, when the officer is legitimately on the property where the car is parked, is not a search within the Fourth Amendment; and if it were a search, it would be a reasonable one. The Supreme Court of Illinois has held that once an officer has a reasonable suspicion, his examination of a VIN, by opening a door is a reasonable search, if a search at all. People v. Wolf, 60 Ill.2d 230, 326 N.E.2d 766, cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975). And in Commonwealth v. Best-Bey, supra, our own Court held that the owner of a vehicle had no reasonable expectation of privacy with respect to the VIN of a vehicle parked in an open space.

Moreover, as Judge Popovich observed in Commonwealth v. Prengle, 293 Pa.Super. 64, 67 n. 3, 437 A.2d 992, 994 n. 3 (1981), “any claim to a reasonable expectation of freedom from government intrusion into a stolen vehicle would be ludicrous.” See also: Commonwealth v. Freeman, 295 Pa. Super. 467, 472, 441 A.2d 1327, 1329-30 (1982).

We find the reasoning of these decisions persuasive. Not only are they determinative of this appeal but they verify the validity of the statutory provision in Pennsylvania which authorizes police officers to inspect any vehicle in any public garage or shop for the purpose of finding stolen vehicles. 75 Pa.C.S.A. § 6308(c).

When appellant delivered the vehicle and its keys to the proprietor of the service station with instructions to find a buyer, the custodian had authority to allow other persons to examine the vehicle. Thus, he could permit a potential buyer to remove the vehicle from the service station for purposes of test driving it and for examining it more carefully. Similarly, he was authorized to assent to a policeman’s request to examine the underside of the vehicle to ascertain the confidential VIN.

We conclude, therefore, that the examination of the Cadillac in order to determine and compare the public and confidential VINs did not constitute an unreasonable search in violation of appellant’s Fourth Amendment rights. It follows also that the conflicting VINs thus derived could be used in the search warrant affidavit to corroborate information given to police by an unnamed informant regarding appellant’s attempt to sell a stolen car. Where, as here, police investigation had corroborated the information imparted by an informant, the informant’s credibility was established. See: Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974); Commonwealth v. Billock, 221 Pa.Super. 441, 289 A.2d 749 (1972). An examination of the affidavit discloses that in all respects the warrant to search appellant’s apartment was based on adequate probable cause.

The judgment of sentence is affirmed.

      . All charges were contained in one information and initially tried together. A jury found Grabowski guilty of theft by receiving the stolen 1977 Chevrolet truck (18 Pa.C.S.A. § 3925) but could not agree upon a verdict on charges arising from an attempt to sell the Cadillac Seville. In a second trial on the latter charges, the court sustained a demurrer to the charge of theft by receiving the stolen Cadillac Seville, and the jury found Grabowski guilty on the charge of dealing in automobiles with removed or falsified numbers. See: 75 Pa.C.S.A. § 7103.

      . Section 6308(c) of the Vehicle Code of June 17, 1976, P.L. No. 81, 75 Pa.C.S.A. § 6308(c) provides:
      “Any police officer or authorized department employee may inspect any vehicle in any public garage or repair shop or on the premises of any dealer, salvor, scrap metal processor, or other public place of business for the purpose of locating stolen vehicles or parts. The owner of the garage or repair shop or the dealer or other person shall permit any police officer or authorized department employee to make investigations under this subsection.”


text:
    452 A.2d 833
    Evan H. BODEN and Joseph B. Buzard, Appellants, v. Edwin W. TOMPKINS, II.
    Superior Court of Pennsylvania.
    Argued March 29, 1982.
    Filed Nov. 19, 1982.

      George Stenhach, Coudersport, for appellants.
    Gordon J. Daghir, St. Marys, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal it is alleged that Pa.R.C.P. 218, the so-called “240 Day Rule”, now vacated, was invalid because it constituted judicial legislation and was in conflict with Rule 1901 of the Rules of Judicial Administration. We are unable to consider these issues, however, because the appeal was not timely filed and must be quashed.

The order dismissing appellants’ action was entered on March 2, 1981. A Notice of Appeal was not filed until June 12, 1981, more than three months after the order had been entered. This was untimely. See: Pa.R.A.P. 903(a).

Appellants seek to avoid the thirty day limit on the right of appeal by identifying the order appealed from as that which was entered on May 22, 1981. The latter order, however, merely dismissed an application to reconsider the order entered March 2, 1981.

“ ‘Pennsylvania case law is absolutely clear that the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is not reviewable on appeal.’ ” Geek v. Smeck, 275 Pa.Super. 259, 261, 418 A.2d 711, 712 (1980) quoting Provident National Bank v. Rooklin, 250 Pa.Super. 194, 202, 378 A.2d 893, 897 (1977), allocatur denied, 250 Pa.Super. XXXV (1977). Accord: Hesson v. Weinrebe, 288 Pa.Super. 216, 218, 431 A.2d 1015, 1016 (1981); Grady v. Grady, 280 Pa.Super. 266, 267, 421 A.2d 715, 716 (1980); Fingles v. Green, 269. Pa.Super. 131, 134, 409 A.2d 99, 100 (1979).

Moreover, it is well settled that the “mere filing of a petition for reconsideration or rehearing from an order of a Court of Common Pleas does not operate to toll the appeal period.” In re Kemmerer, 46 Pa.Cmwlth. 455, 456, 405 A.2d 1108, 1109 (1979). Accord: Erie Human Relations Commission ex rel. Dunson v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982); Penjerdel Refrigeration Corporation, Inc. v. R.A.C.S., Inc., 296 Pa.Super. 62, 63, 442 A.2d 296, 297 (1982); Scoumiou v. United States Steel Corporation, 293 Pa.Super. 254, 257-259, 438 A.2d 981, 982-983 (1981) ; Hesson v. Weinrebe, supra 288 Pa.Super. at 218, 431 A.2d at 1016; Fingles v. Green, supra 269 Pa.Super. at 134-135, 419 A.2d at 101; Provident National Bank v. Rooklin, supra 250 Pa.Super. at 197-198, 378 A.2d at 894; Pa.R. A.P. 1701(b)(3).

It was the earlier order filed on March 2, 1981 from which the appeal should properly have been taken. An order dismissing a complaint with prejudice ends the litigation, disposes of the entire case and puts the litigant “out of court.” Such an order is, therefore, final and appealable. See: Alessandro v. State Farm Mutual Automobile Insurance Company, 487 Pa. 274, 279, 409 A.2d 347, 349 (1979); Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-545 (1978); Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also: Miller v. Hild, 303 Pa.Super. 332, 449 A.2d 714 (1982) (appeal from order dismissing case for failure to comply with local “240-Day Rule”); Johnson v. Keystone Insurance Co., 299 Pa.Super. 187, 445 A.2d 517 (1982) (appeal from order dismissing complaint for failure to comply with “240-Day Rule”); Drakes Mills Development Company v. Northwest Pennsylvania Bank and Trust Company, 295 Pa.Super. 487, 441 A.2d 1338, (1982) (appeal from order dismissing complaint for failure to comply with “240-Day Rule”); Shapiro v. Albright, 287 Pa.Super. 414, 430 A.2d 672 (1981) (appeal from order dismissing complaint for failure to comply with Montgomery County Local Rule 302(d)).

In the instant case, appellants did not file an appeal within thirty days of the entry of the order dismissing their complaint with prejudice. Their petition for reconsideration, which did not toll the appeal period, was denied by the lower court. Therefore, we are without jurisdiction to entertain the instant appeal and have no recourse but to quash it.

It is so ordered.

      . The 240 Day Rule was promulgated by the Pennsylvania Supreme Court on November 19, 1979, No. 161 E.D. Misc. Docket and was found as a footnote to Pa.R.Civ.P. 218 (1980 ed.), reprinted in 486 Pa. XXXVII. The 240 Day Rule was vacated by order of the Supreme Court on March 6, 1981, 11 Pa.B. 1015. The 240 Day Rule provided:
      IN RE: PROMPT CERTIFICATION FOR TRIAL OF CIVIL CASES ORDER
      Effective November 19, 1979
      AND NOW, this 19th day of November 1979, effective immediately, pursuant to authority conferred upon the Supreme Court of Pennsylvania by Article V, Section 10 of the Constitution, in order to expedite the prompt and proper movement and disposition of civil cases in the trial courts of Pennsylvania, it is ordered that:
      1. Prompt Certification for Trial
      (a) In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1, 1980, such documents must be filed not more than 240 days after the action is commenced.

        (b) Prior to the expiration of the period limited in Paragraph (a), any, party may apply for extension of such period. The application must be served on all other parties and must set forth the grounds for the request and the length of extension required. The court may grant the extension only upon finding good cause. The order of extension, if any, shall set forth the new date for certifying trial readiness, which may be sooner than that requested, but may not be later.
      (c) If the documents are not filed within the time limits above, the court, with or without motion by any party, shall require that good cause be shown why the case should not be dismissed for want of prosecution.
      (d) For purposes of this order
      (i) Documents required to signify that a case is ready for trial include certificates of readiness, praecipe for trial or other writing required by local rule.
      (ii) A civil action is commenced when the first praecipe for writ or complaint is filed.
      (iii) Notwithstanding any other local rule or practice, civil actions shall be processed under Paragraph (c) in order of their commencement.


text:
    452 A.2d 835
    FIRST MORTGAGE COMPANY OF PENNSYLVANIA, v. Milton J. CARTER, and Patricia E. Carter; Jerome J. Weingarten and Dorothy I. Weingarten, a/k/a Dorothy S. Weingarten, Victor Henry Associates, Inc. Appeal of Milton J. CARTER and Patricia E. Carter and Jerome J. Weingarten and Dorothy I. Weingarten a/k/a Dorothy S. Weingarten.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1982.
    Filed Nov. 19, 1982.

      Walter D. Campbell, Levittown, for appellants.
    Richard F. Stern, Jenkintown, for appellee.

      Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

After a loan transaction has been completed and the borrowers’ corporate nominee has thereafter made a total of twenty-one monthly repayments of principal and interest, can the borrowers defend an action in assumpsit for the defaulted, unpaid balance by contending that the lender failed at settlement to make certain disclosures in the manner required by the loan agreement? We conclude that where, as here, the borrowers have failed to show any damage as a result of the lender’s technical and insignificant omissions, they cannot avoid liability by rescinding the transaction. A judgment entered in favor of the lender for the unpaid balance of the loan, therefore, will be affirmed.

In January, 1975, Jerome J. Weingarten and Milton J. Carter associated with Larry Levine in a partnership for the purpose of purchasing a business being operated in Fairless Hills, Bucks County, under the name of the “Singer Company.” Initial efforts to obtain a loan to finance the purchase price were unsuccessful, but eventually a loan commitment was obtained from First Mortgage Company of Pennsylvania, the appellee. Thereafter, an agreement to purchase the business was entered, and a corporation, known as “M and J Sales and Service, Inc.”, was formed to take title. At settlement the funds necessary to complete the transaction were advanced by appellee for use by M and J Sales and Service, Inc., and the borrowers agreed to repay the loan at the rate of $1,206 per month for eighty-four months. The loan was secured in part by second mortgages on residences owned by Carter, Weingarten and Levine. After twenty-one payments on account of the loan had been made, the loan went into default. On February 10, 1977, Levine paid $20,000 to appellee and, with the consent of all parties, was released from further liability. An action in assumpsit was commenced against Carter and Weingarten and their wives for the unpaid balance, together with interest and attorney fees. Their answer to the complaint included a counterclaim, which contained averments that they were entitled to rescind the loan transaction without making repayment. The action was tried non-jury and resulted in a decision in favor of the appellee-lender for $88,914.57. Exceptions thereto were dismissed, and judgment was entered on the decision of the trial court.

On appeal, it is contended by appellants that the trial court erred in refusing to find that the lender had failed to comply with provisions of the federal Truth in Lending Act of 1968, 15 U.S.C. § 1601 et seq. It is contended that this Act, although inapplicable to loans made for use by a corporation, was made applicable to the instant loan because of the following language contained in appellee’s letter of commitment:

“It is understood and agreed by the parties hereto that, while the written loan transaction is exempt from the provisions of the 1968 Consumer Trade Protection Act, commonly known as ‘Truth in Lending’, in that it is a loan to a corporation, the aforesaid loan will be consummated in accordance with all the provisions of the aforesaid ‘Truth in Lending Act’ ”.

Appellants argue, as they did in the court below, that appellee failed to consummate the loan transaction in accordance with the Truth in Lending Act. The loan disclosure statement, they contend, did not correctly label or disclose the amount financed, did not with sufficient accuracy describe the annual interest rate, did not recite the total sum of the monthly payments, failed to print required disclosures with sufficient conspicuousness, and contained various alleged ambiguities. They also contend that not every guarantor received a copy of the loan disclosure statement. The trial court found that minor technical violations had occurred but that appellants failed to prove that any loss or damage had resulted therefrom. In the absence of harm, the court refused to allow rescission or award damages to appellant.

The doctrine of substantial performance has been developed by the courts as an instrument of justice intended to avoid forfeiture because of technical, inadvertent or unimportant omissions. It is “ ‘intended for the protection and relief of those who have faithfully and honestly endeavored to perform their contracts in all material and substantial particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent or unimportant omissions or defects.’ ” Schlein v. Gross, 186 Pa.Super. 618, 624, 142 A.2d 329, 333 (1958) quoting Morgan v. Gamble, 230 Pa. 165, 175, 79 A. 410, 414 (1911). Accord: Sgarlat v. Griffith, 349 Pa. 42, 46, 36 A.2d 330, 332 (1944); Barraclough v. Atlantic Refining Co., 230 Pa.Super. 276, 282, 326 A.2d 477, 480 (1974); Charles A. Klinges, Inc. v. Camblos Construction Corp., 194 Pa.Super. 585, 591, 168 A.2d 916, 918-919 (1961); Mort Company v. Paul, 167 Pa.Super. 532, 534, 76 A.2d 445, 446 (1950); Willard Sales & Service, Inc. v. Stevens, 167 Pa.Super. 621, 623, 76 A.2d 225, 227 (1950); P.L.E. Contracts § 351. This does not mean that a contracting party can fulfill his contractual obligation by less than full performance. It does mean “ ‘that an omission, both trivial and innocent, will sometimes be atoned for by the allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture . . . We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence. Then only can we tell whether literal fulfillment is to be implied by law as a condition. This is not to say that the parties are not free by apt and certain words to effectuate a purpose that performance of every term shall be a condition of recovery. That question is not here. This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance of the default is grieviously out of proportion to the oppression of the forfeiture.’ ” Sgarlat v. Griffith, supra 349 Pa. at 47-48, 36 A.2d at 333, quoting Cardozo, J., in Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 243-244, 129 N.E. 889, 890-891, 23 A.L.R. 1429, 1431-1432 (1921). Accord: Jackson v. Richards 5 & 10 Inc., 289 Pa.Super. 445, 456, 433 A.2d 888, 894 (1981); Jennings v. Erie County League of Civic Organizations, 180 Pa.Super. 398, 401-402, 119 A.2d 608, 610 (1956). See also: Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 491, 261 A.2d 319, 325 (1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970); Greentree Borough v. Tortorete, 205 Pa.Super. 532, 535, 211 A.2d 76, 78 (1965).

We conclude that where, as here, the benefits of substantial performance have been voluntarily accepted with knowledge that there have been omissions in achieving strict performance, the party accepting performance will be precluded from setting up such omissions as a defense to repayment of the loan that was made. See: Orner v. McCauley, 274 Pa. 380, 383, 118 A. 316, 316-317 (1922); Fulton v. Miller, 254 Pa. 363, 98 A. 1065 (1916). The loan agreement was fully executed. Final settlement was held, the proceeds of the loan were advanced and distributed, and executed security documents were delivered, all without complaint. Appellants used the money to purchase a business, and title thereto was passed to their corporation. For more than twenty-one months their corporate nominee had the use of appellee’s money without any expression of dissatisfaction regarding the circumstances under which the appellee had performed its agreement to advance moneys with which to complete the transaction. Only when the business proved less successful than anticipated and the corporation defaulted in repaying the loan did appellants suggest that in making the loan appellee had failed to comply with certain technical requirements specified by the loan agreement. These omissions, the trial court found, were technical and trivial. Indeed, they were so trivial and immaterial that appellants were unable to show that any damages had been caused thereby.

Appellants contend that the Truth in Lending Act permits rescission and provides for civil penalties in the event of uncorrected violations even where there has been no resulting loss. See: Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Griggs v. Provident Consumer Discount Co., 680 F.2d 927, 930 (3rd Cir.1982); Dixey v. Idaho First National Bank, 677 F.2d 749 (9th Cir.1982); Rudisell v. Fifth Third Bank, 622 F.2d 243 (6th Cir.1980); Gennuso v. Commercial Bank & Trust Co., 566 F.2d 437 (3rd Cir.1977); Sosa v. Fite, 498 F.2d 114, 117-118 (5th Cir.1974). However, the Truth in Lending Act is inapplicable to determine the remedies available to the parties for breach of contract. The parties’ loan agreement provided only that the loan would be “consummated” in accordance with the Truth in Lending Act. Their agreement was specific in defining their intent. It did nothing more than specify the manner in which the loan was to be processed and consummated. It did not purport to provide remedies for breach which were inconsistent with general principles of contract law; and the trial court declined to find such an intent on the part of the parties to the contract. We perceive no basis for concluding otherwise.

The judgment is affirmed.

      . In Weingarten v. First Mortgage Company of Pennsylvania, 466 F.Supp. 349 (E.D.Pa.1979), it was specifically held that the instant transaction was exempt from the provisions of the Truth in Lending Act. See: 15 U.S.C. § 1603(1). See also: Poe v. First National Bank of DeKalb County, 597 F.2d 895 (5th Cir.1979).


text:
    452 A.2d 838
    Lillian Ruth GOLDBERG, Appellant, v. Albert W. GOLDBERG.
    Superior Court of Pennsylvania.
    Argued March 30, 1982.
    Filed Nov. 19, 1982.

      Stephen G. Brown, Philadelphia, for appellant.
    Gilbert I. Yaros, Philadelphia, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal from a judgment entered on a non-jury verdict in favor of Albert W. Goldberg, appellee, in an action brought by his wife, Lillian Ruth Goldberg, the appellant herein, to recover counsel fees incurred in a prior action in equity. In the prior action, Mrs. Goldberg had been successful in setting aside a deed which purported to convey her interest in real estate owned by her and her husband as tenants by the entireties. Because it is clear that counsel fees cannot be recovered in the instant action, the judgment will be affirmed.

It is unnecessary that we decide whether a wife was entitled to recover counsel fees from her husband under the substantive law applicable at the time appellant brought her action in equity to protect and preserve her interest in real estate owned by the entireties. Even if we assume—we do not decide—that appellant had a valid claim for counsel fees, it is clear that her claim cannot support the present action. Counsel fees cannot be sued for separately from the principal claim. Separate suits constitute an impermissible splitting of but one cause of action. Leomporra v. American Baking Co., 198 Pa.Super. 545, 549-50, 178 A.2d 806, 807 (1962).

A separate action to recover damages for fraud, moreover, would be barred by the statute of limitations contained in the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[9], effective June 27, 1978 (current version at 42 Pa.C.S. § 5527). The act of fraud relied upon by appellant to support her claim for damages in the nature of counsel fees was admittedly known by appellant in May, 1968. The instant action for damages was not commenced until May 26, 1976, eight years later.

It is clear, therefore, that appellant cannot recover counsel fees in this action, and judgment was properly entered in favor of appellee.

The judgment is affirmed.

      . The Judicial Code of 1976, at 42 Pa.C.S. § 2503, effective June 27, 1978, now allows the recovery of a reasonable counsel fee “as part of the taxable costs of the matter” by the following persons:
      (1) The holder of bonds of a private corporation who successfully recovers due and unpaid interest, the liability for the payment of which was denied by the corporation.
      (2) A garnishee who enters an appearance in a matter which is discontinued prior to answer filed.
      (3) A garnishee who is found to have in his possession or control no indebtedness due to or other property of the debtor except such, if any, as has been admitted by answer filed.
      (4) A possessor of property claimed by two or more other persons, if the possessor interpleads the rival claimants, disclaims all interest in the property and disposes of the property as the court may direct.
      (5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.
      (6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter.
      (7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

        (8) Any participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court.
      (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
      (10) Any other participant in such circumstances as may be specified by statute heretofore or hereafter enacted.


text:
    452 A.2d 840
    COMMONWEALTH of Pennsylvania v. John PRICE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied March 30, 1983.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

John Price entered a plea of guilty to a general charge of criminal homicide in exchange for the Commonwealth’s agreement not to seek a death sentence. An evidentiary hearing was held to determine the degree of guilt and also, by agreement, to determine the issue of guilt or innocence on a separate charge of recklessly endangering the decedent’s brother. Price was found guilty of murder in the first degree and guilty also of recklessly endangering. He was sentenced to prison for the term of his natural life; and a concurrent term of not less than one nor-more than two years was imposed for recklessly endangering. On direct appeal, Price is represented by new counsel who argues: (1) that the evidence was insufficient to sustain a finding of murder in the first degree, and (2) that trial counsel was ineffective. There is no merit in these contentions; and, therefore, we affirm the judgment of sentence.

Murder in the first degree is defined as causing the death of another human being by “any .. . kind of willful, deliberate, and premedidated killing.” 18 Pa.C.S. § 2501(a), 2502(a). On appellate review, “we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact .... To do so would require an assessment of the credibility of the testimony and that is clearly not our function.” Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982), quoting Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). Rather, we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, determine whether there, was sufficient evidence to enable the trier of the facts to find every element of the crime beyond a reasonable doubt. Commonwealth v. Pronkoskie, supra, 498 Pa. at 248, 445 A.2d at 1204; Commonwealth v. Hudson, 489 Pa. 620, 625, 414 A.2d 1381, 1384 (1980); Commonwealth v. Horsey, 481 Pa. 470, 472, 393 A.2d 1, 2 (1978). See also: Commonwealth v. Gordon, 490 Pa. 234, 236, 416 A.2d 87, 88 (1980); Commonwealth v. Ash, 482 Pa. 590, 394 A.2d 479 (1978).

In the instant case, appellant killed an unarmed Edward Stern at or about 5:00 o’clock, P.M., on May 14, 1980, by pumping four rifle shots into Stern’s body while Stern was standing on a public street in the City of Harrisburg. Appellant contended, in an effort to obtain a reduction in the degree of the crime, that he had been intoxicated. His evidence and also that of the Commonwealth showed that he had been drinking. However, drinking and intoxication are not synonymous terms. A defendant must be overwhelmed or overpowered by alcohol to the point of losing his or her faculties so as to be incapable of forming a specific intent to kill before an act of murder will be reduced to murder in the third degree. Commonwealth v. Reiff, 489 Pa. 12, 15, 413 A.2d 672, 674 (1980); Commonwealth v. Duncan, 437 Pa. 319, 322, 263 A.2d 345, 347 (1970); Commonwealth v. Barnosky, 436 Pa. 59, 62-63, 258 A.2d 512, 514 (1969); Commonwealth v. Walters, 431 Pa. 74, 82-83, 244 A.2d 757, 762 (1968). See also: Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981).

There was ample evidence from which the trial judge could find that appellant was not so overwhelmed by alcohol as to be unable to form a specific intent to kill. Earlier the same day, appellant and Edward Stern had been present during and, ultimately drawn into, an altercation at Peter Pope’s bar in Harrisburg. Stern and his brother thereafter purchased a half pint of liquor which they were drinking when appellant, who had also been drinking, approached and requested money. When they refused, appellant was overheard to make a threat to kill Edward Stern. At or about 3:00 o’clock, P.M., appellant drove a vehicle without incident and, later, took a short nap at the home of his sister. He returned on foot shortly before 5:00 o’clock, P.M., found Edward Stern and his brother, John, talking with Willie Jackson, and, without a word, fired six shots at the victim at close range. He then turned to John Stern, pointed the rifle at him and said: “I’ll send you to hell too with your brother.” Willie Jackson, who observed the entire incident, testified that appellant had been drinking but was not drunk.

Appellant was arrested at his mother’s home at 7:50 o’clock, P.M., by Officer Larry Bender, who testified that appellant was not drunk. Prior to his arrest, appellant had told his sister that he “shot a guy” and intended to turn himself in. Although appellant was advised by the police of his Miranda rights while he was at his mother’s home and again on the way to the police station, he repeated voluntarily and without interrogation of any type, “I hope the old man is dead.” During the trip to police headquarters, appellant also swore, gestured, and said: “I should have killed that mother-fucker.” At that time, he had full control of his faculties. After appellant had been arraigned, he offered to show police where the gun could be found. Again he said that he “should have killed the man.”

This brief review of the evidence demonstrates clearly that there is no basis for disturbing the trial court’s finding that appellant’s act of shooting Edward Stern was done willfully and was accompanied by a fully formed intent to kill.

“It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable.” Commonwealth v. Musi, 486 Pa. 102, 107, 404 A.2d 378, 380 (1979).

However, “[bjefore inquiring into these claims we must determine whether the claim which counsel is charged with failing to pursue was a frivolous one. See: Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977). ‘Only if the claim which was foregone was of arguable merit must we inquire into counsel’s reason for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).’ Commonwealth v. Gasper, 262 Pa.Super. 141, 396 A.2d 685 (1978).” Commonwealth v. Miller, 293 Pa.Super. 281, 284-85, 438 A.2d 995, 996 (1981).

Several of appellant’s claims of ineffective assistance are so lacking in arguable merit that discussion is unnecessary. The information was in fact signed by the District Attorney; and, therefore, a claim that trial counsel was ineffective for failing to contend otherwise in a motion to quash the information is certainly frivolous. The same is true of appellant’s complaint that counsel failed to file a direct appeal.

Appellant contends that counsel was ineffective for failing to object to the court’s imposing a separate sentence on the information charging reckless endangerment. Contrary to appellant’s contention, the conviction for recklessly endangering did not merge in the murder for purposes of sentencing. The reason is simple. These crimes involved not only separate acts but separate victims as well. It was Edward Stern who was killed; it was his brother, John, who was endangered by appellant’s pointing the gun at him and threatening him after Edward had been shot.

Appellant also contends that trial counsel was ineffective because he entered no objection to the fact that the guilty plea colloquy was conducted by the attorney for the Commonwealth. This, too, is lacking in merit. The comment to Pa.R.Crim.P. 319(a) suggests: “It is advisable that the judge should conduct the examination of the defendant. However, paragraph (a) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge.” The colloquy was full and complete and demonstrated that appellant’s plea was entered knowingly, intelligently and voluntarily. It was not rendered inadequate because it was conducted by the District Attorney.

Appellant contends that his plea of guilty was involuntary and trial counsel ineffective because the plea was induced (1) by counsel’s recommendation to plead guilty in exchange for a promise to forego the possibility of a death penalty, and (2) counsel’s opinion that the court, sitting without a jury, would more likely find him guilty of murder of the third degree because of evidence of intoxication. There is no basis for concluding that counsel’s advice was not designed to serve the best interests of his client. Moreover, “reliance on counsel’s advice as to the likely consequences of a guilty plea does not render the plea involuntary and is not grounds for the withdrawal of a plea.” Commonwealth v. Harris, 286 Pa.Super. 601, 608, 429 A.2d 685, 688-89 (1981), citing Commonwealth v. Williams, 442 Pa. 431, 433-34, 275 A.2d 103, 105 (1971).

At the degree of guilt hearing, the Commonwealth introduced evidence of the oral statement made by appellant while he was being transported to police headquarters and while he was assisting the police to find the murder weapon. Appellant now contends that trial counsel should have moved to suppress the inculpatory nature of the statements. In fact, such a motion was filed but was abandoned when a negotiated plea was entered. We conclude that the motion lacked arguable merit and pursuit thereof would have been fruitless.

After appellant had been arrested, he was twice advised of his rights under Miranda. His statements about the victim were not the result of police questioning. They were spontaneously and voluntarily uttered without solicitation or coercion of any type. Such statements were clearly admissible against him at trial. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Commonwealth v. Wray, 296 Pa.Super. 379, 382, 442 A.2d 819, 820 (1982); Commonwealth v. Whitman, 252 Pa.Super. 66, 380 A.2d 1284 (1977). Therefore, counsel was not ineffective for failing to pursue a pre-trial application for suppression.

Appellant next contends that counsel should have requested the trial court to order a pre-trial mental examination. However, the guilty plea colloquy discloses a knowing and intelligent plea of guilty to murder, and appellant does not allege either a failure to understand the proceedings or an inability to cooperate with counsel. His contention, made in a vacuum and without semblance of support from the record, is insufficient to warrant remand for an evidentiary hearing.

Finally, appellant contends that after sentence had been imposed his counsel failed to discuss with him a motion to withdraw the guilty plea. This contention also lacks merit. In the first place, the record discloses that the sentencing judge did advise appellant of his right to file a motion to withdraw his plea. Nevertheless, appellant did not request counsel to file such a motion. He does not contend that he was unaware of this right but only that counsel did not discuss such a request with him. Secondly, the withdrawal of a plea of guilty after sentence has been imposed will be allowed only where substantial prejudice amounting to manifest injustice has been shown. Commonwealth v. Harris, supra 286 Pa.Super. at 609, 429 A.2d at 689; Commonwealth v. Ammon, 275 Pa.Super. 324, 329, 418 A.2d 744, 747 (1980). Appellant does not allege such prejudice, and our review of the record discloses none.

The judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 2705.


author: CIRILLO, Judge: CAVANAUGH, Judge,

text:
    452 A.2d 844
    COMMONWEALTH of Pennsylvania v. Charles STRICKLAND, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1982.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 22, 1983.

      Christopher G. Bokas, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County, denying the appellant’s Petition for Relief under the Post Conviction Hearing Act.

On April 5, 1971, the appellant, Charles Strickland, was arrested by Philadelphia police and charged with the murder of one George Smith. The appellant confessed the murder to police shortly after his arrest. Subsequently, the appellant’s trial counsel, A. Benjamin Johnson, filed a Motion to Suppress the confession as involuntary. On September 27, 1971, following an evidentiary hearing, the motion was denied by the Honorable James T. McDermott.

The appellant’s trial before the Honorable Gregory G. Lagakos and a jury commenced on June 23, 1972. At the trial the Commonwealth introduced the appellant’s confession as well as a letter written by the appellant to his uncle, in which he expressed concern about the police locating a .25 caliber gun. On July 7, 1972 the jury returned a verdict of guilty of murder in the first degree. Motions for a New Trial and in Arrest of Judgment were filed and argued before a court en banc. These post-trial motions were denied and thereafter the court imposed a sentence of life imprisonment upon the appellant.

The appellant, represented by trial counsel, filed a direct appeal to the Supreme Court of Pennsylvania. That Court found that the trial court had employed an improper standard in determining whether the appellant had standing to contest the admissibility of the self-incriminating letter. Therefore, the Supreme Court remanded the case to the trial court for an evidentiary hearing consistent with its opinion. Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379 (1974).

In accordance with the mandate of the Supreme Court, an evidentiary hearing was held before the Honorable David N. Savitt on January 17, 1975. The appellant was represented at the hearing by Mr. Johnson. On January 23, 1975 Judge Savitt denied the appellant’s Motion to suppress the letter. No appeal was taken from that decision.

On December 6, 1979 the appellant, represented by Joel S. Moldovsky, filed a Petition for Relief under the Post Conviction Hearing Act. On May 28, 1981, following a hearing before the Honorable Edward J. Blake, relief was denied. New counsel was appointed and this appeal followed.

The appellant’s first contention on appeal is that the assistant district attorney made prejudicial and improper remarks to the jury during his closing argument. .

Our Supreme Court has stated:

Even where the language of the prosecuting attorney is intemperate, uncalled for and improper, a new trial is not required unless “its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.”

Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615 (1980), Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).

Specifically, the assistant district attorney remarked in his closing argument to the jury:

And this human life wasn’t taken as in sickness. It was taken by a self-appointed executioner sitting in this courtroom. He has judged and decreed who is going to live and who is going to die.

This reference to the appellant as an “executioner”, though improper, was supported by the evidence and was not so prejudicial as to make it impossible for the jury to render a true and proper verdict. See: Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978); also, Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980).

The assistant district attorney further stated in his closing argument at trial:

I’ll tell you at least my feelings as to motive... He was probably dealing in drugs at the time this homicide took place. And what happened was he probably sold some bad narcotics to George Smith. . . Maybe he did go back to this defendant’s grandmother’s apartment. Maybe he did say something about drugs. This defendant saw him on the street a couple months later. Nobody threatens anybody, so he shot him.

The prosecutor is permitted to argue facts of record and legitimate inferences therefrom. Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979). Appellant’s counsel, in his closing argument, devoted considerable time to the issue of drugs, including the relationship of drugs to the instant murder. The assistant district attorney’s remarks were merely a rebuttal to opposing counsel’s statements, and therefore were proper. See: Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980).

Moreover, after objection by defense counsel, the trial judge immediately cautioned the jury that their recollection of the evidence would control. Later, the court instructed the jury to disregard anything they may have heard about drugs. It is well-settled that juries can be trusted to follow the trial court’s instructions. Parker v. Randolph, 442 U.S. 62, 75, fn. 7, 99 S.Ct. 2132, 2140, fn. 7, 60 L.Ed.2d 713 (1979). Thus, the cautionary instructions of the trial judge were sufficient to assure the appellant a fair and impartial trial. E.g., Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980).

The prosecutor also made the following comment in his address to the jury:

You have Louise Stratford who . . . points out the defendant as the one that opened the door, made a comment, fired the shot that killed George Smith, and came outside and saw nothing. I don’t think there’s any problem as to the guilt of the defendant.

The appellant contends that this statement constituted error because it conveyed the notion that Louise Stratford saw the appellant fire a shot. However, the trial judge corrected any misapprehension that the jury might have had when he told the jury that Louise Stratford had not seen the appellant fire the fatal shot and, in fact, there were no eyewitnesses. See: Commonwealth v. Rawls, supra; Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980).

We therefore conclude that this argument of the appellant is without merit.

The appellant next contends that the lower court improperly admitted an incriminating letter that he wrote to his uncle while he was incarcerated, awaiting trial in the instant case. In the letter the appellant stated, “. . . I cannot afford to have that ’25 automatic in the wrong hands which would be the police.” Police confiscated the letter from the uncle’s apartment as they searched it, pursuant to a warrant, for narcotics. The appellant contends that the letter should have been suppressed because the warrant did not adequately describe the premises to be searched or items to be seized, was stale when executed, and was not issued upon probable cause.

In the case of Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980), our Supreme Court stated the following:

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this Court must “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” (citations omitted)

491 Pa. at 368, 421 A.2d at 181. The Court in Davis went on to hold that credibility determinations are the sole province of the fact finder, and the fact finder is free to believe all, part of, or none of the defendant’s testimony. Id.

The warrant in question authorized the search of “707 Jessup Place, 3rd floor apt., right side of hall”, occupied by “a Negro male known as Rivet.” The record indicates that the search comported with the information set forth in the warrant. Thus, it is apparent that the warrant description was not unduly vague so as to render the warrant invalid.

Likewise, even though the warrant did not specify that a letter was to be seized, the letter was properly confiscated in the course of the search. Judge Savitt found that the police were properly in the uncle’s apartment and the letter was lying open on a bureau top in plain view. Thus, under the “plain view” doctrine, the letter did not require a separate warrant before it could be expropriated. Harris v. U.S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), Commonwealth v. Mitchell, 489 Pa. 537, 414 A.2d 1021 (1980).

The appellant contends that the warrant was stale, and therefore invalid in that there was an interval of seven days between its issuance and execution. However, the appellant’s failure to raise this allegation at any time prior to this appeal constitutes a waiver under the Post Conviction Hearing Act, absent a showing of “extraordinary circumstances” justifying the failure. The appellant has not alleged the existence of any such extraordinary circumstances and this claim is therefore waived. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978).

The suppression court also found that there was ample probable cause for the issuance and execution of the warrant. An affidavit, based on an informant’s tip, established that the appellant’s uncle was engaged in a continuous criminal activity, the sale of narcotics. The uncle’s illicit enterprise suggested that at any time he probably would have drugs in his apartment. The information concerning the on-going operation supports the conclusion that probable causé existed for the warrant. We find that the warrant was constitutionally valid and that the incriminating letter was properly seized and admitted into evidence.

The appellant further contends that his confession should have been suppressed due to psychological coercion and an impermissible pre-arraignment delay, in violation of Pa.R. Crim.P. No. 118, and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

A confession will be deemed voluntary if, considering the totality of the circumstances, the Court finds that it was the product of an essentially free and unconstrained choice. Commonwealth v. Eackles, 286 Pa.Super. 146, 151, 428 A.2d 614, 617 (1981). The appellant arrived at the Police Administration Building at 10:25 A.M., at which time he indicated a willingness to cooperate. He did not give a formal statement to police until 9:25 P.M. However, virtually all of the delay was justified for reasons approved by our courts. Also, the record reveals that the appellant was not questioned constantly without respite, was apprised of his constitutional rights, repeatedly made voluntary disclosures, was alert and responsive to questions and appeared quite calm. Under the circumstances, we find that the confession was not coerced or obtained after an unnecessary delay, and therefore was properly admitted.

The appellant also contends that he was effectively denied his right of appeal. The P.C.H.A. Court specifically rejected this claim of the appellant, finding that he had knowingly and voluntarily waived his appellate rights. This finding involved a credibility determination and is amply supported by the record. We, therefore, find this allegation to be without merit. E.g. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981).

Finally, the appellant contends that he was denied his right to effective assistance of counsel in this matter. Counsel is presumed to be competent and the burden is on the defendant to show otherwise. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). So too, counsel will not be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Barren, 273 Pa.Super. 492, 417 A.2d 1156 (1979). We have found the issues raised by the appellant in this appeal to be without merit. Therefore, trial counsel was not ineffective for failing to pursue them.

Additionally, we note that the appellant waited almost five years from the time Judge Savitt rendered his decision in this case, until he filed a Petition for post-conviction relief. A lapse of time in filing a P.C.H.A. Petition is a factor in assessing its merit. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Ferguson, 257 Pa.Super. 497, 390 A.2d 1347 (1978).

Moreover, this Court has recently stated, “Ineffective assistance of counsel has become the last ditch ploy of defendants in criminal cases and should not be encouraged.” Commonwealth v. Alberts, 285 Pa.Super. 10, 12, 426 A.2d 678, 679 (1981).

Accordingly, we affirm the Order of the Court below.

Order affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I concur in the result reached by the majority because I do not feel that appellant has set forth any ground which would entitle him to the relief requested.

I strongly disagree, however, with the majority’s statement that the record amply supports the PCHA Court’s finding that appellant knowingly and voluntarily waived his appellate rights. Id. at 849. The record does not support such a finding. In fact, the testimony presented at the PCHA hearing clearly indicates that appellant and his family reasonably believed, until 1977, that appellant’s trial counsel, Benjamin Johnson, had appealed from the lower court’s determination following the January 23, 1975 remand hearing.

Appellant testified at the PCHA hearing as follows:

Q. When the remand hearing was over on January 23, 1975 the Judge found facts against you and made reference to the right of appeal. What if any discussion did you have with Mr. Johnson about that appeal?
A. Well, after Judge Savitt made his ruling Ben Johnson said to me that he would appeal the case.
Q. Back to where?
A. To the Supreme Court, yeah.
Q. There was never any question as to whether or not you wanted him to or if he would agree to?
A. No, that’s the only thing that cooled me out, my composure. He said he was going to appeal it to the Supreme Court.

N.T. March 19, 1980 at 100-01. And on cross-examination:

Q. Sir, you said after the hearing before Judge Savitt, after the hearing on January 23rd, Mr. Johnson told you that he was going to appeal.
A. Yes.
Q. Did Mr. Johnson say at that time you would have to pay him any more money?
A. No money was mentioned.
Q. No money was mentioned?
A. No.

N.T. March 19, 1980 at 115-16.

Between 1975 and 1977, appellant wrote “a couple of letters” to Mr. Johnson inquiring as to the status of his appeal, but the letters were not answered. Finally, he wrote directly to the Pennsylvania Supreme Court. The Supreme Court prothonotary informed him, by way of a letter dated August 24, 1977, that there was nothing pending in the Supreme Court on his behalf. Appellant then asked his father and his fiancée, Debbie Seals, to visit Mr. Johnson and find out what was being done on his case. Mr. Johnson informed appellant’s father that he was still owed $1200 for work already performed and that he would not do anything further on the case until that money was paid.

On August 1,1978, Debbie Seals paid Mr. Johnson $1200 in cash and was given a receipt which stated that the money was “for services rendered, and to proceed to the Supreme Court.”

In July of 1979, appellant again wrote to the Supreme Court. Again, he was informed, by way of a letter dated July 12, 1979, that there was nothing pending on his behalf in the Supreme Court. In October 1979, appellant retained new counsel, who filed the PCHA petition which is the subject of this appeal.

Nothing in Mr. Johnson’s testimony contradicts the testimony given by appellant, his father, and his fiancée. Mr. Johnson testified as follows:

Q. Do you recall following that hearing, which occurred in 1975, whether or not Mr. Strickland asked you to resubmit his case for appeal to the Supreme Court?
A. Well, I don’t think there’s any question that Mr. Strickland wanted me to resubmit his case.
Q. He did want you to?
A. Yes. I think that during that period of time Mr. Strickland’s father had hired me and he was unavailable. There was already some funds due me still from my working the appeal and the hearing. I think it was approximately $1200 which was ultimately paid to me and I said that I could just not afford to go back before the Supreme Court on my own unless I received some funds and there were no funds available at that time.
Q. Did you convey that to Mr. Strickland following the hearing before Judge Savitt?
A. I don’t have any actual recollection of doing so.
Q. But at some point it was conveyed to him or his family that you were not going to prosecute the appeal because funds were due you?
A. Right.

N.T. March 24, 1980 at 140-41 (emphasis added).

Mr. Johnson’s testimony is that appellant was informed at some point that his appeal would not be pursued until Mr. Johnson was paid. Unfortunately, “some point” was apparently in 1977, long after the period for filing an appeal had expired. Appellant clearly did not knowingly and voluntarily waive his appellate rights.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1; 19 P.S. §§ 1180-1 et seq.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended by the Act of April 28, 1978, P.L. 84, No. 39, § 1; 18 Pa.C.S.A. § 2502(a).

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended by the Act of March 26, 1974, P.L. 213, No. 46, § 2; 18 Pa.C.S.A. § 1102.

      . The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. 11, § 202(1); 17 P.S. § 211.202(1), was the source of the Supreme Court’s jurisdiction. That Act has since been repealed and Supreme Court jurisdiction in a matter such as the present one is now governed by the Act of July 9, 1976, P.L. 586, No. 142 § 2, as amended by the Act of October 5, 1980, P.L. 693, No. 142, § 216(c); 42 Pa.C.S.A. § 722.

      . The decedent was killed by a bullet fired from a .25 caliber gun.

      . Pa.R.Crim.P. 323(i) provides the following:
      At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

      . Pa.R.Crim.P. 323(h) provides the following:
      The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. The defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.

      . The appellant’s uncle, Robert Johnson, was also known as “Rivet”.

      . Act of January 25, 1966, P.L. (1965) 1580, § 4; 19 P.S. § 1180-4(b).

      . Pa.R.Crim.P. No. 118 adopted January 31, 1970, effective May 1, 1970; renumbered as Rule 130 and amended September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980.

      . The delay included transporting and processing the appellant, a period of 5 hours and 50 minutes for the administration of polygraph tests, 40 minutes for two meals, and 2 hours and 45 minutes for interviews. The unexplained delay of less than 2 hours was not an “unnecessary delay” under Futch. See: Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975).

      . The record indicates that A. Benjamin Johnson, appellant’s trial counsel, told the appellant and his family that he would not perfect the appeal because funds were still due him from his prior representation of the appellant in this case. Further, the appellant knew he had a right to court-appointed counsel but did not seek such assistance in perfecting his appeal.