author: DiSALLE, Judge: SHERTZ, Judge:

text:
    439 A.2d 1214
    Susan SAUERS, individually and on behalf of all persons similarly situated, Appellant, v. PANCOAST PERSONNEL, INC., Snelling and Snelling, Inc., R. E. Lowe and Associated, Inc. t/d/b/a Shilowe Personnel Systems, George T. Moray, t/d/b/a Career Personnel Service, Interstate Business Systems, Inc. and June Franell, t/d/b/a Franell Personnel Consultants. Elva M. NOVELLI, William Poloka, Harald Brinke, Michael Halyko and Vincent McStay, individually and on behalf of all persons similarly situated, Appellants, v. PANCOAST PERSONNEL, INC., Snelling and Snelling, Inc., R. E. Lowe and Associated, Inc., t/d/b/a Shilowe Personnel Systems, George T. Moray, t/d/b/a Career Personnel Service, Interstate Business Systems, Inc., and June Franell, t/d/b/a Franell Personnel Consultants.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1981.
    Filed Jan. 8, 1982.
    Petition for Allowance Denied May 26, 1982.

      Joseph M. Zoffer, Pittsburgh, for appellants.
    Jon G. Hogue, Pittsburgh, for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   DiSALLE, Judge:

On January 28,1976, appellants brought a class action suit against appellees-employment agencies with whom appellants had contracted for the purpose of finding employment. This appeal arises from a lower court order dismissing the complaint as to the defendant Snelling and Snelling, Inc. (hereinafter Snelling), based upon its conclusion that Snell-ing had not been served with the complaint.

On February 3, 1976, service of the complaint was made upon a person in charge of the office of a Snelling licensee in Monroeville, Pennsylvania. Appellants contend that this constituted proper service on Snelling. Appellants argue that the licensee was an agent of Snelling with actual authority to accept service on Snelling’s behalf. As authority for this contention, appellants cite Pa.R.C.P. 2180(a)(2), which authorizes service of process upon a corporation by having the sheriff hand a certified copy of the complaint “to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity. . . . ” Alternatively, appellants contend that the licensee was vested with apparent authority to act as Snelling’s agent. Snelling denies any agency with the Mon-roeville licensee.

The lower court found that Snelling first received notice of this suit on January 19, 1979, when the attorney who initially had entered his appearance for all of the defendants mailed to Snelling a copy of a Petition to Withdraw Appearance as its counsel because of its failure to participate in the suit or to remit its share of legal fees. On May 25, 1979, Snelling, through other counsel, filed a Special Petition to Intervene, which contained Preliminary Objections raising the issue of improper service. Following discovery and a hearing, the lower court sustained Snelling’s Preliminary Objections.

It is clear from a reading of the license contract that the licensee was without actual authority to act as Snelling’s agent. Paragraph 9 of the contract states:

This agreement is one of license only and Licensee is not hereunder authorized to act for or on behalf of SNELL-ING in any matter whatsoever. ... In granting this license SNELLING does not authorize or empower Licensee to use SNELLING’S name in any capacity other than is provided herein, nor to sign SNELLING’S name to any contracts, documents, bills, notes, checks, drafts, leases, bonds, mortgages, bills of sale or any other instrument in writing, or to hold itself out as a general or special agent, officer, director or partner of SNELLING. Licensee shall represent that it is doing business as a licensee under the trade name and style of “Snelling and Snelling” or as a licensed member of the SNELLING System, ....

The argument that the licensee had apparent authority to receive service on Snelling’s behalf must also be rejected. Apparent authority exists when the principal has led a third party into believing that the licensee was the principal’s agent. Apex Financial Corp. v. Decker, 245 Pa. Super. 439, 369 A.2d 483 (1976). Restatement (Second) of Agency § 8 (1958). This did not occur in the instant case. Paragraph 21 of the licensee’s answer to appellants’ complaint states, in pertinent part:

It is admitted that Snelling and Snelling is an employment agency engaged in the business specifically defined in paragraph 2 of the complaint, but it is denied that this defendant has offices at 607 Washington Road, Pittsburgh, Allegheny County, Pennsylvania 15228. On the contrary, the franchise Snelling and Snelling Agency specifically dealing with plaintiff Elva M. Novelli was licensed as Pittsburgh Personnel Services t/a Snelling and Snelling, located at 7651 Oliver Plaza, Pittsburgh, Pennsylvania 15222, and that all matters relating to this plaintiff were confined to this separate franchise entity, and legal liability, if any, would rest in said licensee only. (Emphasis added.)

Appellants, therefore, had notice that service had been made upon a licensee of Snelling, and not on Snelling. Cf. Delaware Valley Surgical Supply Co. v. Geriatric and Medical Centers, 450 Pa. 239, 299 A.2d 237 (1973) (service upon the parent corporation held not to constitute service upon wholly owned subsidiary corporations); Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967) (service upon the distributor-independent contractee held not to constitute service upon the manufacturer-contractor); Botwinick v. Credit Exchange, 419 Pa. 65, 213 A.2d 349 (1965) (service upon a wholly owned subsidiary corporation held not to constitute service upon the parent corporation).

Appellants also argue that Snelling has waived the defense of improper service by failing to raise the same in the original Preliminary Objections which were filed when their suit was first instituted. This is obviously without merit. A party cannot be held to pleading requirements when it has not received notice of the filing of the suit in the first instance.

Order affirmed.

SHERTZ, J., files a dissenting opinion.

Decision was rendered prior to DiSALLE and SHERTZ, JJ., leaving the bench of the Superior Court.

SHERTZ, Judge:

In considering whether the trial court properly sustained preliminary objections raising a question of jurisdiction, our scope of review is limited to whether the jurisdictional issue was properly decided. Wechsler v. Newman, 256 Pa.Super.Ct. 81, 87, 389 A.2d 611, 614 (1978). Because I believe the court below had jurisdiction over appellee, Snelling and Snelling, Inc. (“Snelling”), I would hold that the trial court erred in sustaining Snelling’s preliminary objections and dismissing it as a party defendant. Accordingly, I respectfully dissent from the conclusion reached by the majority.

Unquestionably, Snelling was entitled to notice of the action against it. Notice is a basic requirement of due process. Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 452, 370 A.2d 685, 692 (1977). Moreover, to be adequate, notice must be

reasonably calculated ... to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such a nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In the instant case, the method by which appellants effected service of process upon Snelling comported both with the requirements of due process and with the mandates of Pa.R.Civ.P. 2180(a)(2).

After reviewing the record, I am in agreement with the majority’s conclusion that Pittsburgh Personnel Services, trading as Snelling and Snelling (“PPS”), the Snelling licensee, was without express authority to act as Snelling’s agent. I part company with the majority, however, with respect to its conclusion that apparent authority was not present. Apparent authority is the “power to bind a principal which the principal has not actually granted but which he leads persons with whom his agent deals to believe that he has granted.” Revere Press, Inc. v. Blumberg, 431 Pa. 370, 375, 246 A.2d 407, 410 (1968). See also Apex Financial Corp. v. Decker, 245 Pa.Super.Ct. 439, 443, 369 A.2d 483 (1976). In determining the existence of apparent authority, the test is whether a person of ordinary prudence, diligence and discretion would have both a right to believe, and an actual belief, that the agent possessed the authority he purported to exercise. Id., 245 Pa.Super. at 443, 369 A.2d at 486.

Appellants contend that Snelling led job seekers, including appellants, to believe that they were dealing, not with a local independent employment agency, but with Snelling and Snelling, Inc., a nationally established and well-known corporation, or with one of its agents. They further claim that they had a right to believe, and did believe, that PPS, upon whom process was served, was authorized to accept service on behalf of Snelling. Thus, appellants argue that, because apparent authority existed, service upon PPS, the Snelling licensee, constituted service upon Snelling and Snelling, Inc.

Snelling, on the other hand, argues that no apparent authority existed. To buttress this contention, Snelling points to a clause in its “license agreement” with PPS which states that the licensee is not authorized to act on behalf of the licensor. However, “the fact that the franchise agreement expressly denies the existence of an agency relationship is not in itself determinative of the matter.” Drexel v. Union Prescription Centers, 582 F.2d 781, 786 (3d Cir. 1978). See also Drummond v. Hilton Hotel Corp. 501 F.Supp. 29 (E. D. Pa.1980). Rather, it is the nature and extent of the control, as established by the practice of the parties, that is controlling. Id.

An examination of the terms of the license agreement indicates that Snelling retained and exercised the right to control both the manner in which PPS conducted its business and the representations that PPS made to prospective clients. The following provisions included in the license agreement, are indicative of the nature and extent to which Snelling retained and exercised the right to control its licensee, PPS:

1. The licensee acknowledges that it is desirous of becoming part of the International Snelling System. (Introduction—paragraph 3).
2. Snelling “grants to the licensee” the perpetual right ... to be identified as a member of the Snelling System . . . . ” (paragraph 1(a)).
3. The licensee may not change its location without Snelling’s written approval, (paragraph 1(a)).
4. The licensee may use no name or service mark other than “Snelling and Snelling.” (paragraph 1(c)). (emphasis added)
5. The licensee may not change its corporate name without Snelling’s written approval, (paragraph 1(d)).
6. The licensee must commence operations within 90 days from the date of the agreement, (paragraph 1(g)).
7. The licensee must use training manuals provided by Snelling. The manuals are to remain the property of Snelling. (paragraph 2(a)).
8. The licensee must train each employee in the methods and techniques developed by Snelling. (paragraph 2(c)).
9. The licensee must strictly follow and comply with the procedures, methods and standards set forth in the Snelling training manuals, (paragraph 2(d)).
10. Snelling and Snelling shall receive from the agency seven percent (7%) of the agency’s gross receipts from the operation of its business, payable monthly, (paragraph 3(b)).
11. The licensee must maintain its office in keeping with the standards established by Snelling. (paragraph 4(a)).
12. The licensee shall file with Snelling a monthly report indicating the name, address, employment date and job classification of each person hired during the preceding month. In the event an employee is terminated, the report must also include the date and reason for the termination, (paragraph 4(b)).
13. The licensee shall provide monthly reports, regarding its business operation for the preceding month, on forms prescribed by Snelling for that purpose, (paragraph 4(c)).
14. The licensee must present invoices, on forms prescribed by Snelling, for services rendered, (paragraph 4(d)).
15. Licensee shall send to Snelling, on the last business day of each week, or if requested by Snelling shall send to it on a daily basis, a copy of each job order received by Licensee, from employers, which shows a salary or potential earning capacity of $7,500 per year or more. Licensee shall not distribute such job orders to anyone other than Snelling or Snelling’s designee and Licensee shall not be entitled to any remuneration for placements made on such job orders by other Snelling licensees, (paragraph 4(e)).
16. Licensee shall keep true and correct business records and books of account and shall establish and maintain such records in accordance with normally accepted methods and procedures of accounting, (paragraph 4(f)).
17. The agency must keep its books and records open to Snelling and subject to Snelling’s inspection. It must also furnish to Snelling, upon request, copies of its corporate stock transfer records and books, (paragraph 4(g)).
18. The licensee must have an annual audit made and
must furnish to Snelling, without charge, a copy of such certified audit, (paragraph 4(h)). /
19. The licensee shall promptly supply, on Snelling’s request, net cash receipt figures for the period beginning June 1 and ending May 31 of each year, (paragraph 4(i)).
20. The licensee must use only the standard form of reports, stationery, and other printed material uniformly prescribed by Snelling for use by members of the Snelling System, (paragraph 6(a)).
21. The agency must advertise in the yellow pages of the telephone directory serving its area by placing “at least a one-inch in-column advertisement in form prescribed by Snelling.” (paragraph 6(b)).
22. The agency is precluded from engaging either directly or indirectly in any temporary help service business or from being associated with any such business, unless it obtains a separate license to do so from Snelling. (paragraph 7(a)).
23. The licensee may not be employed by, or associated in any way with, any personnel or employment agency other than as a Snelling licensee during the term of the agreement, (paragraph 8(a)).
24. The licensee, in consideration of the value of the Snelling name and of Snelling’s reputation, may not for two years following termination of the agreement engage in a similar business within ten miles of any Snelling office, (paragraph 8(b)).
25. The licensee must maintain in effect at all times during the term of the agreement certain insurance policies, naming Snelling as an additional insured, (paragraph 10(a)).
26. The licensee must deliver to Snelling evidence of insurance coverage and must promptly notify Snelling of any and all claims against the licensee and/or Snelling under the insurance policies, (paragraph 10(b)).
27. If the licensee fails to perform any of its obligations, Snelling shall have the right to terminate the license by giving the licensee ten days’ written notice, (paragraph 11(a)).
28. The agency is obliged to recognize that its personnel consulting and employment agency business is “one of a large number of Snelling businesses .. . . ” (paragraph 11(f)) (emphasis added).
29. The licensee may not assign or transfer its shares of stock without Snelling’s prior written approval, (paragraph 14(a)).
30. The licensee shall not merge, consolidate or reorganize its business without the prior written consent of Snelling. (paragraph 15(a)).

The foregoing list of provisions, which is by no means exhaustive, affords ample evidence of the comprehensive control that Snelling retained over PPS. Moreover, such an all encompassing degree of control supports the conclusion that persons of ordinary prudence, diligence and discretion would be led to believe they were dealing with an agent or employee of Snelling when dealing with PPS.

It is clear that, because of the necessity to protect “product, service, know-how and name. . .,” private franchising, a multi-billion dollar enterprise, could not thrive if franchisors/licensors did not maintain some control over franchisees/licensees. Singleton v. International Dairy Queen, Inc., Del., 332 A.2d 160, 162 (1975). However, when the control retained by the licensor becomes as all-embracing as it is here, and when the licensor can dictate virtually every aspect of the licensee’s business operation as it can here, a third person may justifiably and reasonably believe that the licensee is the agent of the licensor, at least for service of process purposes.

Having concluded that PPS was Snelling’s agent within the meaning Pa.R.Civ.P. 2180(a)(2), I turn now to a determination whether Snelling was served at an “office or usual place of business.” A corporation that is doing business within a county for venue purposes is not necessarily subject to service under Rule 2180. Sullivan v. Harleysville Insurance Co., 16 D. & C.3d 34, 38 (1980). Whether Snelling was properly served at its office or usual place of business depends on the type of activity it conducted in Allegheny County, which, in turn, rests on an analysis of the relationship between PPS and Snelling. See Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 190, 240 A.2d 505, 513 (1967). See also Pyle v. Pennsylvania National Insurance Co., 11 D. & C.3d 663, 671 (1979). Because I conclude that PPS was Snelling’s agent, rather than an independent contractor, and because PPS was doing business on behalf of Snelling in an office in Allegheny County, there is sufficient evidence to support the conclusion that the PPS office was an “office” and “usual place of business” of Snelling. Myers, 429 Pa. at 190. 240 A.2d at 513.

Such being the case, service of process upon Snelling was accomplished by delivery of process to “an agent ... at any office or usual place of business of the corporation.. .. ” Thus, Snelling was properly served.

The peculiar circumstances of the instant case give added weight to such a conclusion. Appellants filed their original complaint on or about January 28, 1976. Service was made upon Snelling and Snelling, Inc. on February 3, 1976, by hand delivery of a copy of the Writ of Summons and Complaint to Toni Page, a person in charge of PPS, a Snelling licensee. On February 17, 1976, Paul G. Kachulis, Esquire, entered an appearance as counsel for, and filed preliminary objections on behalf of, all defendants, including Snelling and Snelling, Inc., none of which raised lack of personal jurisdiction over Snelling. Subsequently, on June 3, 1976, the trial court dismissed the preliminary objections, and defendants were directed to file their Answers.

More than seven months thereafter, on January 5, 1977, defendants, including Snelling and Snelling, Inc., filed their Answer. On February 28, 1977, class certification was granted and the trial court rendered a non-jury verdict for all defendants. On March 22, 1977, the trial court dismissed plaintiffs’ exceptions. Judgment was entered for defendants on May 9, 1977, and an appeal was taken to this court on May 10, 1977.

On July 12, 1978, the Superior Court reversed the trial court and held for all appellants. Novelli et al. v. Pancoast Personnel, Inc. et al., 257 Pa.Super.Ct. 450, 390 A.2d 1323 (1978). The Supreme Court denied appellees’ Petition for Allocatur on November 21, 1978.

On January 16, 1979, Attorney Kachulis filed a Petition to Withdraw his Appearance for certain defendants, including Snelling and Snelling, Inc. On May 24, 1979, Snelling, through Jon Hogue, Esquire, filed a Special Petition to Intervene, which included preliminary objections raising, for the first time, the questions of improper service and lack of personal jurisdiction. Following extensive discovery, oral argument was had on June 25, 1980. On July 8, 1980, the trial court sustained Snelling’s preliminary objections and dismissed Snelling as a defendant. This appeal followed.

Inasmuch as this action was commenced in early 1976, appellees had every reason to believe that Snelling had been properly served until May 24, 1979, more than three years later. The majority cites paragraph 21 of the licensee’s answer to appellants’ complaint as evidence of the fact that appellants had notice that proper service had not been made upon Snelling. At 1215. I disagree. This paragraph is nothing more than a statement that Snelling and Snelling, Inc. would not be liable for any wrongdoing of its licensee. It does not address the issue of improper service. Moreover, since lack of personal jurisdiction was not raised in the preliminary objections filed on Snelling’s behalf in February, 1976, that defense was waived. Encelewski v. Associated East Mortgage Co., 262 Pa.Super.Ct. 205, 210, 396 A.2d 717, 719 (1978). See also Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 190, 240 A.2d 505, 513 (1967). Thus, appellants were entitled to conclude either that Snelling had been properly served or that any objections to personal jurisdiction had been waived.

The conclusion reached by the trial court, and approved by the majority, works severe and irreparable harm upon appellant class which, though blameless, is left without recourse against Snelling inasmuch as the statute of limitations has run. I am unable to subscribe to such an uncalled-for and unwarranted result, especially since, if Snelling had no actual notice of this law suit, blame therefore must rest squarely on its shoulders. Paragraph 9(a) of the license agreement states that:

•. . . Licensee agrees to indemnify and hold SNELLING harmless from any and all claims, suits, demands or other causes of action, including reasonable attorneys’ fees and expenses in defending the same, which may arise or be asserted against SNELLING by reason of the operation of Licensee’s business or by reason of Licensee’s use of SNELLING’S name.

Thus, it is clear that Snelling anticipated or, at the very least, considered the possibility that suit might be brought against it as a consequence of the business activities of PPS. It could and should, therefore, have required PPS to provide prompt notification of any such suit, particularly inasmuch as Snelling specifically employed such a safeguard in connection with similar eventualities. For example, paragraph 10(b) of the license agreement requires that the “Licensee shall promptly notify Snelling of any and all claims against Licensee and/or Snelling under said policies of insurance.” PPS knew, or through the exercise of reasonable diligence could have known, that Snelling had not been separately served with process. In spite of such knowledge, PPS, for approximately three years, instructed and/or permitted counsel it had retained to hold himself out as representing Snelling. Yet, PPS apparently took no steps to bring any of this information to Snelling’s attention. Given the nature and extent of Snelling’s bargained for control over PPS, and the constant exercise thereof, any dereliction by PPS and the consequences thereof, if any, ought not be visited upon Appellants. Rather, they are matters for Snelling and PPS to resolve inter se.

I would- therefore reverse the order of the trial court.

      . In addition, the licensee, in compliance with Pennsylvania law, had placed on public file with the Department of Labor and Industry a document that identified licensee as an independent entity, separate and distinct from Snelling as licensor.

      . Neither can appellants rely upon the principle of estoppel because they have failed to prove that Snelling, by culpable negligence, permitted licensee to exercise powers not granted it. Apex Financial Corp., supra.

      . Pa.R.Civ.P. Rule 2180(a)(2) reads:
      (a) Service of process within the county in which the action was commenced shall be made upon a corporation or similar entity by the sheriff of that county by handing an attested or certified copy of the process, as prescribed by Rule 1008,
      ******
      (2) to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity ....


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    439 A.2d 1220
    COMMONWEALTH of Pennsylvania, v. Alonzo WATTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 16, 1981.
    Filed Jan. 8, 1982.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.

      Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Appellant contends that trial counsel was ineffective in failing to prepare his defense adequately, and interview and call at trial potential defense witnesses. Because we cannot determine whether counsel had a reasonable basis for not pursuing these claims, we must vacate the judgment of sentence and remand for an evidentiary hearing.

It is well settled “that newly appointed or retained counsel must raise on appeal the ineffectiveness of his predecessor trial counsel or that claim will be deemed waived.” Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n.6, 372 A.2d 687, 695 n.6 (1977). See also Commonwealth v. Webster, 490 Pa. 322, 324, 416 A.2d 491, 492 (1980). Because this appeal presents the first opportunity for appellant’s current counsel to challenge previous counsel’s stewardship, appellant’s allegations of ineffectiveness are properly preserved for appellate review. “[CJounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). We cannot determine from the present record whether counsel had a reasonable basis for his lack of preparation and trial conduct. Consequently, we must vacate the judgment of sentence and remand for an evidentiary hearing. Commonwealth v. Hubbard, supra, 472 Pa. at 278, 372 A.2d at 696; Commonwealth v. Twiggs, 460 Pa. 105, 106, 111, 331 A.2d 440, 443 (1975). If the lower court finds that counsel was ineffective, then it should grant appropriate relief. If, however, it finds that counsel was not ineffective, then it should reinstate the judgment of sentence. Following that determination, either party may appeal as allowed by law.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

      Appellant contends also that he should be discharged because the information upon which his conviction rests was endorsed with a “rubber stamp” contrary to our decision in Commonwealth v. Emanuel, 285 Pa. Superior Ct. 594, 428 A.2d 204 (1981) (invalidating conviction because information had not been “signed by an attorney for the Commonwealth”). “[U]nder the state of the present law, appellant’s failure to file a pretrial motion to quash the information constitutes a waiver of his right to assert this impropriety in any subsequent proceeding.” Commonwealth v. Harper, 292 Pa. Superior Ct. 192, 197 n.5, 436 A.2d 1217, 1220 n.5 (1981) (citations omitted).


text:
    439 A.2d 1222
    In re Robert MILLER, Jr., a Minor. Appeal of the COMMONWEALTH of Pennsylvania. In re Curtis BUSH, a Minor. Appeal of the COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1981.
    Filed Jan. 8, 1982.

      Michael E. Moyer, Assistant District Attorney, Allentown, for Commonwealth, appellant.
    Paul A. McGinley, Allentown, for appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

This is a consolidated appeal by the Commonwealth from an order by the court below granting the appellees’ motions to suppress certain inculpatory statements. On appeal, the Commonwealth makes several contentions of error by the court below in the granting of these motions. For the reasons discussed below, we do not agree and, accordingly, we affirm.

The essential facts of the case are as follows:

On November 4, 1979, Trooper Ralph Fiorenza of the Pennsylvania State Police was called to investigate an incident at 4315 Clearview Drive, Allentown, Pennsylvania. While there, the Trooper determined that an explosive had been placed in a mailbox at that address causing damage to the mailbox. The owner, Frederick Magruder, had chased the actor or actors and had suffered some ailment. (Mr. Magruder subsequently died as a result of a heart attack suffered during his chase.)

While conducting his investigation, Trooper Fiorenza talked to a Mark Verzino. Verzino told Trooper Fiorenza that he knew two boys, one named “Bushy,” who had been talking about buying firecrackers at the bus stop earlier in the week. Verzino pointed out the two boys’ respective houses, those being the residences of the two juveniles who are the appellees in the instant appeal.

Trooper Fiorenza went first to the Bush residence. The Trooper knocked on the door, was met by the elder Mr. Bush (father of the appellee herein), identified himself and was admitted into the house by Mr. Bush. The Trooper told Mr. Bush that a mailbox had been exploded; that the owner had chased the actor or actors; and that the owner had been stricken in some way as a result. The Trooper asked to talk to Curtis, which he did after the boy was summoned by his parents.

Curtis, his father, his mother, and Trooper Fiorenza were seated in the Bush living room. The Trooper told Curtis what had happened and asked Curtis if he knew anything about the incident. Curtis denied any knowledge.

Without giving any warnings concerning Miranda rights to either Curtis or his parents, the Trooper proceeded to question the boy and elicit (admittedly with the help of the boy’s father) an inculpatory statement and a forfeiture of the remaining supply of Curtis’ fireworks.

Trooper Fiorenza then went to the Miller residence. He approached the garage and saw appellee Robert Miller’s father inside. Trooper Fiorenza was admitted to the garage, identified himself and explained the circumstances to him. Mr. Miller then hollered into the house and Robert came out. Mr. Miller told Trooper Fiorenza to tell Robert what had happened. Trooper Fiorenza again related the facts and Robert’s father stated to Robert, “You’re not involved in this, are you?” Robert told his father he was indeed involved. The father asked Robert if he had any firecrackers and told Robert to get the firecrackers. Robert returned with firecrackers and turned them over to Trooper Fiorenza. Trooper Fiorenza then left the Miller house.

At no point in either case were Miranda warnings given to the juveniles or their parents. At no point did Trooper Fiorenza know or tell the participants that Mr. Magruder had died. Although the only evidence Trooper Fiorenza had that Mr. Magruder had actually suffered a heart attack came from a Mrs. Gehran (who spoke to Trooper Fiorenza when he returned to the crime scene after talking with the juveniles), it is clear from the record that the Trooper was fully aware of the potentially serious nature of the charges, and yet failed to administer the appropriate warnings. Indeed, it was the finding of the court below that the actions of Trooper Fiorenza were sufficient to constitute “interrogation” in both cases, thereby triggering the need for Miranda warnings.

On March 7, 1980, petitions of delinquency were filed against Robert Miller, Jr., and Curtis Bush, charging them with criminal mischief, conspiracy, and involuntary manslaughter. Both juveniles filed pre-trial motions seeking to suppress statements made by them. On April 21, 1980, the Honorable John E. Backenstoe of the Court of Common Pleas of Lehigh County, granted the juveniles’ motions to suppress those statements, based on the above-mentioned finding of “interrogation” and on Pennsylvania’s long-standing history of affording an extra measure of protection to juveniles under circumstances such as the instant action. This appeal followed. '

On appeal, the appellant raises a number of minor contentions based on the facts of the case, and one major one, based on an apparent new trend in the law pertaining to the Miranda rights of juveniles. The essence of the factual, or factually-related, contentions of the Commonwealth is that the court below erred in its finding that an “interrogation” had taken place and that Miranda warnings were therefore required. Specifically, the Commonwealth contends that the court erred in its application of the guidelines concerning the need for Miranda warnings found in our holding in Commonwealth v. Anderson, 253 Pa.Super. 334, 385 A.2d 365 (1978) in that the focus of the instant investigation was not sufficiently sharp here and, more importantly, that there was not a sufficient degree of deprivation of liberty of movement, real or perceived. Also, the Commonwealth seeks to avoid the necessity for Miranda warnings on the ground that it was the parents of the appellees, not Trooper Fiorenza, who conducted the questioning that led to the confessions.

After a careful review of the briefs, the record, and the cases cited by both sides, we must reject the factually-related contentions of the appellant. For one, a review of the record reveals conflicting testimony as to who actually conducted the questioning. It is our belief that the court below, as trier of fact, must have resolved this dispute in favor of the appellees in order to reach the result that it did. Certainly, the court did hold that Trooper Fiorenza made pointed and accusatory statements sufficient to warrant its holding that the interrogations were so custodial as to require warnings. The court even held that the trooper had threatened appellee Bush with a polygraph test, thereby implied by restricting his freedom. Surely such a finding would exclude placing the “blame” on the parents for their initial cooperation. Faced with lengthy and often conflicting testimony in this area, the court below found as it did on these factually-related points, and cannot be reversed absent clear error or abuse of discretion. We find no such error sufficient to reverse.

Appellant’s most serious contention on appeal centers on its allegations that the law relevant to this type of case has changed and that, as a result, juveniles are no longer absolutely entitled to an extra measure of protection where Miranda rights are concerned. We must concede that there may generally be some merit to this contention. The possible change is very recent, however, and the matter is definitely not settled yet here in Pennsylvania. For that reason, and for the reason that the cases supporting appellant all deal with situations where at least some warnings were given (unlike the instant interrogations wherein none were given), we must reject appellant’s contention in this area also.

As mentioned earlier, it has long been the law in Pennsylvania that “the circumstances surrounding a juvenile’s confession must be examined with greater scrutiny than that of an adult,” Commonwealth v. Cobbs, 452 Pa. 397, 404, 305 A.2d 25, 28 (1973). According to the Cobbs court, this extra measure of protection has been based largely on decisions of the United States Supreme Court dating back to 1948, including, of course, the landmark case of In Re Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 1453, 18 L.Ed.2d 527 (1967). During the 1970’s numerous cases came down from our Supreme Court fleshing out the higher standard of care regarding juvenile confessions. See, e.g., Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). In 1978, the rights of juveniles in this area reached their high water mark in our Commonwealth in the case of Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978). In Barnes, our Supreme Court reaffirmed the following prerequisites to a juvenile’s waiver of his or her Fifth or Sixth Amendment rights:

1. the juvenile must be given the opportunity to consult with an adult;
2. the adult must be one who is genuinely interested in the welfare of the accused juvenile;
3. the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile;

Commonwealth v. Barnes, supra, 482 Pa. at 560, 394 A.2d at 464, citing Commonwealth v. Smith, supra, 472 Pa. at 500-02, 504, 372 A.2d 797 (Emphasis added). The court in Barnes added a fourth requirement that the mandatory consultation be a meaningful one, Id.; hence the reference to a “high water mark” in this area.

Clearly, the rule in Barnes, which is a per se one, was not followed in the instant interrogation. No warnings whatsoever were given, much less an opportunity for consultation prior to the confession. The Commonwealth contends, however, that the standard announced in Barnes is no longer the law in this area, citing Fare v. Michael C, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) and its progeny. In Fare, the U.S. Supreme Court held that a minor’s request for his probation officer was not a per se invocation of his Miranda rights and reversed a California court’s decision to grant a motion to suppress. While this decision was based largely on the fact that a probation officer is ultimately a representative of the state, and not of the juvenile, it cannot be ignored that the impact of Fare is a major stepping-back in the long-standing federal basis for “juvenile” rights to consultation with an adult. Indeed, the U.S. Supreme Court recently vacated our holding in Commonwealth v. Henderson, 266 Pa.Super. 519, 405 A.2d 940 (1978) [stressing the juvenile’s absolute right to consultation prior to waiver] with instructions to reconsider in light of Fare. Commonwealth v. Henderson, 446 U.S. 905, 100 S.Ct. 1829, 64 L.Ed.2d 256 (1980).

The Commonwealth relies heavily on these two decisions of the U.S. Supreme Court as indicating that the pendulum has swung back in this area of the law. While we must concede that this may well be the case, we must also point out that an erosion of the right to consultation is not an erosion of the right of the accused juvenile to at least be informed of his Miranda rights. Nor is it necessarily an erosion of the rule calling for greater scrutiny of the circumstances of a juvenile’s confession as opposed to those of an adult’s. Quite simply, the instant case may be distinguished on the basis that no warnings were given regardless of any concomitant right to consultation with an interested adult. Furthermore, especially since juvenile law is a matter primarily of state concern, it may ultimately be held that the state law underpinnings (particularly those found in our State Constitution) of the per se right to meaningful consultation before waiver of Miranda rights are sufficient to keep it alive in Pennsylvania despite the decision in Fare. Hence, we would not agree that Henderson has been overruled.

Along these lines, there is a recent case, not cited by either side on appeal, which deserves comment. In Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1981), our Supreme Court, for the first and only time, retreated from the per se nature of our right to consultation rule. This would seem to comport with the Commonwealth’s position regarding a shift in the law, although Veltre also involved a situation wherein at least some basic warnings to the juvenile were given. The precedential value of Veltre is dubious, however, since it involved an evenly split court, and since it was in fact the first and only such departure (made primarily on the basis that the particular defendant was so “street-wise” and experienced with the law that he was capable of waiving his rights on his own). Furthermore, the opinion in Veltre clearly reaffirmed another principle of long-standing—that a judge’s decision regarding an alleged waiver of a juvenile’s Miranda rights be made with reference to the totality of the circumstances. Clearly, the court below in the instant action did properly consider the to tality of the circumstances surrounding the subject interrogations and found due care for the juveniles’ rights lacking. We see no reason to reverse that finding.

For the reasons stated above, the Order of the court below granting the motions to suppress is hereby affirmed.

VAN der VOORT, J., notes his dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 18 Pa.C.S.A. § 3304(a), (b).

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 2504.

      . In summary, these guidelines are:
      1. police “focus” on a particular person will not require Miranda warnings before police interviews with that person.
      2. actual police custody or restriction of freedom in any significant way prior to, or during, the interview requires that the person be advised of his Miranda rights.
      3. a suspect actually may be in custody even if the police have not taken him to a police station or formally arrested him.
      4. custodial interrogation occurs when a suspect is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.

      . We would note at this point that we agree with Justice POMEROY in his dissent in Barnes that the per se rule goes too far. Nevertheless, like the trial court below, we are compelled to follow it as the law applicable here.

      . It is our understanding that our State Supreme Court has since granted allocatur on Henderson. It is our hope that on reconsideration, the right to consultation rule, which has been clouded by this recent vacating by the U.S. Supreme Court and by the recent split decision in Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1981) (discussed at Note 9 and accompanying text infra), will be made clear once again.

      . See Note 7 supra.

      . See Footnote 7 supra.

      . We are hard-pressed to see how anyone, especially a juvenile, could knowingly and voluntarily waive rights of which he is not even made aware.


text:
    439 A.2d 1226
    Anthony L. CENTRONE, M. D., Appellant, v. Arthur TUCHINSKY, Debby Tuchinsky, Martin G. Miller and Jean Aboyan. Anthony L. CENTRONE, M. D. v. Arthur TUCHINSKY, Debby Tuchinsky, Martin Miller and Jean Aboyan. Appeal of Arthur TUCHINSKY and Debby Tuchinsky.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1981.
    Filed Jan. 8, 1982.
    Albert M. Sardella, West Chester, for appellant (at No. 2183) and for appellee (at No. 2184).
    Lawrence Aglow, West Chester, submitted a brief on behalf of Tuchinsky, appellants (at No. 2184) and for appel-lees (at No. 2183).

      Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   PER CURIAM:

These are cross-appeals from a final Order awarding plaintiff/appellant a verdict in the amount of $10,000. However, we cannot reach the merits of the case.

On September 20, 1979, the lower court, after a non-jury trial, found for the plaintiff in the amount of $42,000 plus interest and costs. On September 24, 1979, judgment was entered for that amount on the docket. On September 28, 1979, exceptions to the Order were filed, and subsequently on May 20, 1980, the court en banc sustained in part and dismissed in part the exceptions.

An appeal does not lie until a court en banc has ruled upon the exceptions to the trial court’s adjudication. See Slotsky v. Gellar, 455 Pa. 148, 314 A.2d 495 (1974). Judgment was entered before the court ruled upon the exceptions. The entry of judgment was premature and, therefore, it is void.

Accordingly, the appeals are quashed.

PRICE, J., did not participate in the consideration or decision of this case.


author: CERCONE, President Judge:

text:
    439 A.2d 1227
    COMMONWEALTH of Pennsylvania v. John FAY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 29, 1981.
    Filed Jan. 14, 1982.

      Kenneth W. Johnson, Rockwood, for appellant.
    George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.
    Before CERCONE, President Judge and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, John Fay, Jr., takes this appeal from the order of the court below denying appellant relief under the Post Conviction Hearing Act (PCHA). For the reasons set forth below, we find that the court erred and we reverse.

On December 22, 1972, a criminal complaint was filed in Somerset County against appellant charging him and two others with the offenses of armed robbery and conspiracy stemming from the holdup of a supermarket. Several months later, when appellant’s case was called for trial, it was learned that appellant was then in a federal penitentiary serving a sentence of five to fifteen years for bank robbery, whereupon appellant’s case was continued. Subsequently, appellant was temporarily transferred from the federal penitentiary to the Cambria County jail because appellant was at that time awaiting trial in Cambria County on a charge of criminal homicide. Appellant’s homicide charge had not yet gone to trial when, on February 25,1974, appellant was transferred to Somerset County for trial on the instant charges. On this date, appellant entered a plea of guilty.

During the guilty plea colloquy, the court advised appellant of the possible sentence which he might receive, saying, “Now that offense [armed robbery] carries with it a maximum fine of $10,000.00, or imprisonment of not more than twenty years, or both.” However, the court did not advise appellant that his sentence in this case might run consecutively with the sentence he was then serving on the federal conviction. Appellant did, in fact, receive a sentence of five to fifteen years to run consecutively with his federal sentence. Appellant took a direct appeal in which he challenged the legality of the sentence but did not raise the issue as to whether or not the guilty plea colloquy was defective. Appellant’s sentence was affirmed by this Court. Commonwealth v. Fay, 232 Pa.Superior Ct. 724, 334 A.2d 307 (1975).

Thereafter, appellant, by new counsel, filed the herewithin PCHA petition in which he alleges that his appellate counsel, who was the same attorney who represented appellant at trial, was ineffective for failing to raise the issue regarding the adequacy of the guilty plea colloquy. A hearing was held on this petition and the court found that the guilty plea colloquy was not defective.

Before this Court decides the merits of this petition, we must first address ourselves to the procedural problems which accompany this case. At the time that appellant filed his petition, appellant was incarcerated in federal prison. Section 3 of the Post Conviction Hearing Act stated, then as now, that to be eligible for relief under this legislation, the petitioner must show, inter alia, “that he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or on parole or probation.” A procedural situation comparable to appellant’s was presented to this Court in Commonwealth v. Ditmore, 242 Pa.Superior Ct. 248, 363 A.2d 1253 (1976), where a PCHA petitioner was then incarcerated in West Virginia. We held that the petitioner in Ditmore failed to meet the eligibility requirements of section 3. We find the same to be true of appellant’s case.

However, this does not leave appellant in limbo, so to speak, until he begins serving his sentence in Pennsylvania. In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Supreme Court ruled that a petition which does not meet the eligibility requirements of the PCHA might be treated as a common law petition for writ of coram nobis. On this point the Court wrote:

The intent of the Act, however, was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment, whether in prison or on porale (sic) or probation. All claims previously cognizable on a common law writ, in circumstances not covered by the terms of the Act, may still be litigated by means of the common law writ. Merely because one is not incarcerated, on parole or probation does not per se preclude a collateral attack on his conviction.

Id., 446 Pa. at 39, 285 A.2d at 467 (citations omitted) (emphasis added). The Sheehan Court also expanded the scope of a writ of coram nobis in Pennsylvania from being restricted to challenges on the validity of a judgment based on facts not previously before the court, to include matters of law. On the authority of the Sheehan decision, we conclude that appellant’s petition is properly before this Court as a writ of coram nobis.

We now turn to the merits of appellant’s petition. Appellant argues that his guilty plea colloquy was defective in that the court failed to fully apprise appellant of the permissible range or sentences, or, more specifically, that appellant’s sentence on the state charges could be consecutive with his sentence on his federal convictions. Pa.R. Crim.P. 319(a) provides:

Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understanding^ tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant’s behalf.

The mandatory nature of Rule 319 was clearly established in Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Other cases indicated that six specific areas of inquiry must be explored, including whether the defendant is aware of the permissible range of sentences and fines for the offenses charged. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). In Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209, 1210, 1211 (1978), the Supreme Court noted that an assurance that the defendant fully comprehends the maximum punishment that might be imposed for his conduct “is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware or misinformed as to such a critical fact.”

The ABA Standards Relating to Pleas of Guilty (2nd ed 1980), Standard 14-1.4 in relevant part provides:

(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:
(i) the nature and elements of the offense to which the plea is offered;
(ii) the maximum possible sentence on the charge, including that possibly from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration.

While there are no decisions in Pennsylvania which directly deal with the issue now before this Court, this issue has been raised in other jurisdictions. In particular, the case of United States v. Myers, 451 F.2d 402 (9th Cir. 1972) presents a fact situation which is the mirror image of that now before this Court. In Myers, the defendant was in state custody at the time he pleaded guilty to federal charges. The Myers Court was asked to construe the meaning of Rule 11, a rule which is comparable to Pa.R.Crim.Pro. 319, and which requires that a guilty plea not be accepted by the court unless “made voluntarily with understanding of the nature of the charge and the consequences of the plea.” A particular federal statute made a consecutive sentence highly probable since the statute provided that a federal sentence shall not commence until the individual arrives at federal prison. Under these facts the Myers Court ruled that the defendant’s plea was not voluntarily and understandingly made because the accused was not told of the possibility of consecutive sentences. The Court compared the defendant’s situation with that of an accused who is statutorily ineligible under federal law for probation or parole, a fact of which the accused must be informed before a guilty plea may be validly accepted. See e.g. Berry v. United States, 412 F.2d 189 (3rd Cir. 1969). The Myers Court therefore, reversed and remanded for a new trial.

We find that the reasoning in the Myers case can be applied to the instant appeal. In view of the Supreme Court’s directive in Kulp, we conclude that appellant’s guilty plea was not knowingly and understanding^ entered since he was not fully apprised of the maximum punishment that was possible.

Reversed and remanded for a new trial.

      . The Post Conviction Hearing Act, 1966, Jan. 25, P.L. (1965) 1580, § 1, 19 P.S. §§ 1180-1 et seq., as amended by Act No. 1980-77.

      . In Ditmore, the Court did not reach the merits of the petitioner’s collateral attack on his conviction because the Court found that the issue which the petitioner was attempting to raise had previously been litigated in his direct appeal.


author: SPAETH, Judge: SHERTZ, Judge,

text:
    439 A.2d 1230
    COMMONWEALTH of Pennsylvania, v. Mark A. MACHI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Jan. 14, 1982.

      Karl W. Wiedt, III, Pittsburgh, for appellant.
    Kamali Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for operating a lottery. Appellant argues that he was not tried within the period required by Pa.R.Crim.P. 1100. We have concluded that he was not, and therefore order him discharged.

The complaint was filed on February 28, 1978. A timely motion to suppress was filed, and was scheduled to be heard “on the date of trial, immediately prior to trial.” Order of Court dated June 1,1978 (not included in reproduced record). Trial was scheduled for July 17, 1978, and on that date the lower court heard the motion to suppress. The central issue concerned the constitutionality of the Pittsburgh Police Magistrate’s Court, a question then pending before the Supreme Court. The lower court states that it “postponed the commencement of trial at the request of defense counsel and upon agreement by the Commonwealth and Defendant until a decision was rendered by the Supreme Court . . . . ” Slip op. at 4. The run date for the 180-day period was August 27, 1978. About six months later, on January 24, 1979, the Supreme Court upheld the constitutionality of the Magistrate’s Court. Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, cert. denied, 442 U.S. 918, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1979). A month later, on February 28, 1978, which was 365 days after the complaint had been filed, appellant was tried by a judge sitting without a jury—the same judge as the judge who heard the motion to suppress—and was convicted. At no point did the Commonwealth petition for an extension of time.

The Commonwealth argues that for Rule 1100 purposes, appellant’s trial commenced at the beginning of the suppression hearing on July 17, 1978, something over a month before the run date.

Rule 1100 does not speak directly to this argument, providing only that “[f]or the purposes of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial.” However, our interpretation of this provision is aided by the Comment, which we adopted in Commonwealth v. Byrd, 250 Pa.Superior Ct. 250, 378 A.2d 921 (1977), rem’d on other grounds, 493 Pa. 178, 425 A.2d 722 (1981). Accord, Commonwealth v. Kluska, 484 Pa. 508, 399 A.2d 681, cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78 (1979); Commonwealth v. Brown, 264 Pa.Superior Ct. 127, 399 A.2d 699 (1979); Commonwealth v. Taylor, 254 Pa.Superior Ct. 211, 385 A.2d 984 (1978); Commonwealth v. Jackson, 262 Pa.Superior Ct. 151, 396 A.2d 690 (1978). The Comment provides in pertinent part:

It is not intended that preliminary calendar calls should constitute commencement of a trial. A trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire, or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony or to some other such first step in the trial.

In discussing this definition of “commencement of a trial,” Chief Justice EAGAN in Commonwealth v. Lamonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (concurring opinion), concluded that the language “first step in the trial” means “the beginning of any stage which leads directly into the guilt-determining process.” This conclusion became part of the test formulated by us in Commonwealth v. Dozier, 258 Pa.Superior Ct. 367, 392 A.2d 837 (1978), where we said:

Thus, a hearing on a motion will mark the commencement of a trial under Rule 1100 only if (1) the accused is adequately warned that the hearing has been reserved until the time of trial and (2) the hearing actually leads directly into the guilt-determining process.

Id., 258 Pa.Super. at 371-2, 392 A.2d at 840.

Here the first part of the Dozier test was satisfied, for as noted above, on June 1, 1978, the lower court ordered that the motion to suppress was to be heard “on the date of trial, immediately prior to trial.” Cf. Commonwealth v. Jackson, supra 262 Pa. Super, at 157 n. 4, 396 A.2d at 693 n. 4, (notation in record found inadequate “to advise appellant here that his suppression motion would signal the commencement of his trial”); Commonwealth v. Dixon, 262 Pa.Superior Ct. 161, 396 A.2d 695 (1978) (remand to determine whether defendant or his attorney had received notice of petition for an extension). The issue is whether the second part of the Dozier test was also satisfied.

In considering this issue in other cases, we have said that a suppression hearing will be found to have lead directly into the guilt-determining process only if it triggered a substantial commitment of the court’s time and resources to a determination of the defendant's guilt. Commonwealth v. Bethel, 261 Pa.Superior Ct. 231, 234, 396 A.2d 372, 374 (1978). We have consistently refused to find such a triggering event or direct lead-in where a substantial period had elapsed between the end of the suppression hearing and the beginning of the actual trial. Commonwealth v. Brown, 264 Pa.Superior Ct. 127, 399 A.2d 699 (1979) (250 days between suppression hearing and trial); Commonwealth v. Taylor, 254 Pa. Superior Ct. 211, 385 A.2d 984 (1978) (173 days between suppression hearing and trial); Commonwealth v. Haddad, 256 Pa.Superior Ct. 176, 389 A.2d 658 (1978) (250 days between suppression hearing and trial); Commonwealth v. Griffin, 257 Pa.Superior Ct. 153, 390 A.2d 758 (1978) (62 days between suppression hearing and trial); Commonwealth v. Bethel, supra (16 days between suppression hearing and trial. Here the period between the suppression hearing and the trial was 185 days, not so long as the periods considered in Brown and Haddad, but a little longer than the period in Taylor and a great deal longer than the periods in Griffin and Bethel. We therefore conclude that the second part of the Dozier test was not satisfied.

The correctness of this conclusion is confirmed by a review of cases in which we have held that the Dozier test was satisfied. In each such case the actual trial was so soon after the suppression hearing that the two could be viewed as a unified whole. Commonwealth v. Whitner, 278 Pa.Superior Ct. 175, 420 A.2d 486 (1980) (jury selection immediately after suppression hearing); Commonwealth v. Kluska, supra (trial began day after completion of suppression hearing); Commonwealth v. Wharton, 250 Pa.Superior Ct. 25, 378 A.2d 434 (1977) (jury selection began day after completion of suppression hearing); Commonwealth v. Fisher, 244 Pa.Superior Ct. 361, 368 A.2d 762 (1976) (trial began two days after completion of suppression hearing).

Our conclusion that appellant’s trial did not commence with the suppression hearing does not, however, end our inquiry. The lower court found, although the Commonwealth did not request or argue for the finding, that

trial commenced on July 17, 1978 with the suppression hearing and was interrupted and delayed at the request of defense counsel. Accordingly, defendant waived his right to a speedy trial under Rule 1100 ....
Slip op. at 4.

This finding is facially appealing, for a defendant may not benefit from a delay that he has caused. Commonwealth v. Gallo, 276 Pa.Superior Ct. 562, 419 A.2d 601 (1980). However, Rule 1100 protects a fundamental right personal to the accused. Commonwealth v. Guldin, 278 Pa.Superior Ct. 69, 419 A.2d 1360 (1980). Therefore, either a signed statement or an on-the-record colloquy is necessary before waiver by the accused may be found. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1980). See also, Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980); Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). Here there was neither a signed statement nor an on-the-record colloquy. Indeed, the only evidence of record appears at the conclusion of the suppression hearing, when the following occurred:

THE COURT: Will there by any argument?
MR. WIEDT: Yes, sir.
(Arguments held off the record)
THE COURT: We will continue this until we get the briefs and the other things, and we will wait to see what happens.
Record at 57a.

Accordingly, we are unable to uphold the lower court’s finding that appellant waived his Rule 1100 rights.

Our discussion might end at this point. Given the lower court’s opinion, however, we have examined one further aspect of the case. As we noted in our statement of the case, in its opinion the lower court explains the delay between the completion of the suppression hearing and the actual trial by saying that it “postponed the commencement of trial at the request of defense counsel and upon agreement by the Commonwealth and Defendant until a decision was rendered by the Supreme Court [in Paulinski] ...” Slip op. at 4. This statement, we believe, requires some comment, for otherwise our decision may be misunderstood.

As we have already indicated, the record does not support the court’s statement that its postponement of the commencement of trial was “upon agreement by the Commonwealth and Defendant.” We may assume that appellant, as the defendant, was present, and therefore heard the court say, “We will continue this until we get the briefs and the other things, and we will wait to see what happens.” However, mere silence by a defendant when a continuance is granted does not constitute agreement, or waiver. Commonwealth v. Frazier, 278 Pa.Superior Ct. 247, 420 A.2d 523 (1980); Commonwealth v. Garrison, 277 Pa.Superior Ct. 18, 419 A.2d 638 (1980); Commonwealth v. Brown, 264 Pa.Superior Ct. 127, 399 A.2d 699 (1979).

Nor is it evident from the record that the postponement of the commencement of trial was “at the request of defense counsel.” Instead, the record indicates that the postponement was by mutual agreement. Specifically, when the trial began, the lower court said, in rejecting defense counsel’s Rule 1100 argument:

We heard all the testimony on the Motion to Suppress in our case, and the only reason we did not proceed was because you, the Defense Counsel, Mr. Corbett [for the Commonwealth] and I all agreed that we would not do anything at all about this matter until such time as the Supreme Court acted.
Record at 67a.

Also, in this regard, it may be noted that the Commonwealth did not argue at trial, and does not argue now, that defense counsel requested a continuance or was otherwise responsible for the delay. To the contrary, in replying to defense counsel’s Rule 1100 argument, the Commonwealth argued:

We would argue that the delay, any delay in this case was caused by the court, should be viewed as Court delay, should not be charged to the Commonwealth, and therefore, the 180 days should again continue to run from the date that Your Honor set this trial and denied the Motion to Suppress, which I believe you have already done. R. 65a (emphasis added).

The judgment of sentence is reversed and appellant discharged.

SHERTZ, J., files a concurring opinion.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

SHERTZ, Judge,

concurring:

I agree with the result reached by the majority. However, rather than reach the issue of whether or not Appellant was tried within the period mandated by Rule 1100, Pa.R.Crim.P., I would affirm on the basis of insufficiency of the evidence.

The. test of sufficiency of evidence is whether, accepting as true all the evidence presented by the prosecution and all reasonable inferences therefrom, which if believed, the jury could properly, base its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime.

Commonwealth v. Smith, 283 Pa.Super.Ct. 360, 365, 423 A.2d 1296, 1298 (1981).

Instantly, Appellant was found guilty of operating a lottery. At the time of his arrest, numbers slips indicating a total play of more than $3,000, together with currency totalling from $1,600, were discovered in Appellant’s possession. These alone, however, were not sufficient to convict Appellant. As this Court stated in Commonwealth v. Lane, 242 Pa.Super.Ct. 283, 363 A.2d 1271 (1976):

In Commonwealth v. Bondi [217 Pa.Super. 133, 269 A.2d 398] supra, the defendant was found to be in possession of a card with 43 bets on it. In spite of the large number of bets, this Court held that without evidence as to whether the card was a writer’s card or a player’s card, the defendant’s conviction for operating a lottery could not be sustained. In the present case, there was simply no evidence as to whether the slips possessed by appellant were those of a writer or those of a player. Normally the Commonwealth presents testimony of an officer familiar with lottery operations as to whether the slips possessed were writer’s slips .... However, the lack of such testimony was fatal in this case.

Id., 242 Pa.Super. at 287, 363 A.2d 1273 (citations omitted). The same evidentiary deficiency was present and is similarly fatal in the instant case. Accordingly, I concur.

      . Appellant also argues that the Pittsburgh Police Magistrate’s Court is without power to issue search warrants, so that his motion to suppress should have been granted, and that the Commonwealth failed to establish that he was operating a lottery. Appellant’s Brief at 6. We do not reach these issues.

      . In Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), a two and one-half year period intervened between the suppression hearing and the trial. However, in that case the Commonwealth had appealed the grant of a motion to suppress. The Supreme Court held that the appeal was an “automatic supersedeas of the operation of Rule 1100,” Id, 495 Pa. at 498, 434 A.2d at 1200-01, because its effect was to deprive the lower court of jurisdiction to proceed with the trial. Here, in contrast, the Commonwealth took no action that could be considered the functional equivalent of filing for an extension of time, and jurisdiction remained with the lower court at all times.

      . “Unified” in a chronological sense. In a functional sense, a suppression hearing cannot “lead into” the guilt-determining process because it is not part of that process but is simply a way of administering the exclusionary rule. 3 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.2 (1978). Referring to the distinction between a suppression hearing and a trial, the United States Supreme Court has said:
      We must remember also that we are not dealing with the trial of the criminal charge itself.... The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment.

        McCray v. Illinois, 386 U.S. 300, 307, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62 (1967).

      . Pursuant to 18 Pa.Cons.Stat.Ann. § 5512 (Purdon 1973).


author: SPAETH, Judge:

text:
    439 A.2d 1235
    In re Appointment of a Guardian of the Person for Raymond KATIC, a minor. Appeal of Child, by Drew GRIVNA, his guardian.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1981.
    Filed Jan. 14, 1982.

      llene W. Shane, Pittsburgh, for appellant.
    John B. Nicklas, Jr., Pittsburgh, submitted a brief on behalf of Swiger, participating party.
    Bruce Woodske, Pittsburgh, submitted a brief on behalf of Stahl participating party.
    Before SPAETH, HESTER and SHERTZ, JJ.
   SPAETH, Judge:

This is an appeal from an order appointing a guardian for a minor alleged to be incompetent. Since the order was entered ex parte and without notice or hearing, the lower court had no jurisdiction over the alleged incompetent. We therefore reverse and remand for further proceedings.

On May 23,1980, C. Eugene Swiger, Executive Director of the Southwest Communities Mental Health and Mental Retardation Centers, filed a petition asking the lower court to appoint a guardian for the person of Raymond Katie. The petition alleged that Raymond was 13 years old; that he had been under Southwest Communities’ supervision since September 1979, and had been “temporarily placed” with Victor and Marilyn Stahl as “host parents”; that he suffered from “profound mental retardation” and a severe hydrocephalus that might require operative procedures on short notice; that he was “so mentally defective and incompetent that he is unable to make proper decisions necessary for his health, safety and welfare, and is accordingly in need of a guardian of his person”; and that if an emergency operative procedure were necessary, his parents’ consent could not be obtained because they lived in Oklahoma.

On June 9, 1980, the lower court, ex parte, and without notice to Raymond or a hearing, appointed Mr. Swiger guardian of Raymond’s person and authorized and directed him “to consent to such necessary operative procedure” as the doctors in charge of Raymond might deem “in the best interests of protecting [Raymond’s] health, safety and life.”

On June 17, 1980, a request for reconsideration and preliminary injunction was filed on Raymond’s behalf. On June 25, the lower court heard argument. It was argued that the order of June 9 should not have been issued without notice to Raymond and a hearing, and also, that the court should consider appointing the Stahls as Raymond’s guardians as more personally interested in him and in a better position to make decisions about his welfare. At the conclusion of the argument the lower court denied the request for reconsideration and preliminary injunction, expressing the view that notice was not required. N.T. 6/25/80 at 5, and that “guardianship [should be] based on an agency rather than an individual,” id., at 22.

The Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 101, et seq., prescribes the procedure that must be followed before a court may find a person domiciled in Pennsylvania to be incompetent and appoint a guardian of his person or estate. The Code requires that “[n]otice of the petition and hearing shall be given in such manner as the court shall direct to the alleged incompetent . . . and to such other parties as the court may direct.” 20 Pa.C.S.A. 5511(a). Thus, while the court may determine the manner of giving notice, it may not dispense with notice, which must be given to the alleged incompetent, before the hearing. If no notice is given, the court is without jurisdiction to enter a decree of incompetency. In Hicks Estate, 414 Pa. 131, 199 A.2d 283 (1964), the proceeding was under the Orphans’ Court Act of 1951, P.L. 1163, 20 P.S. § 2080.704, which provided that jurisdiction of the person should be obtained by citation. The petition seeking to have the appellant declared incompetent and to have guardians appointed of her person and her estate did not pray for the issuance of a citation, and no citation was issued and served on the appellant, although her doctor read the petition to her. In reversing the decree of incompetency, the Supreme Court said:

In the absence of service of citation upon appellant or general appearance on her behalf, all that transpired below was without jurisdiction over her person and was, therefore a nullity. The decree of incompetency, without actual jurisdiction over appellant lacks validity and binding effect. Accordingly, it was error to dismiss the petition and to refuse to vacate the adjudication of incompetency and the orders enlarging the record.
Id., 414 Pa. at 135, 199 A.2d at 285.

See also Rosini Estate, 426 Pa. 220, 223, 232 A.2d 191 (1967).

We must therefore reverse and remand for further proceedings, to be conducted in accordance with the Probate Code.

It is so ordered.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

      . Appellant has argued that an adjudication of incompetency without notice or a hearing violates rights guaranteed by the Fourteenth Amendment. Since we have concluded that notice and a hearing are . required by the Probate Code, we do not consider this argument. Appellant has also argued that the lower court abused its discretion in failing to make factual inquiry regarding the identity of the guardian. We express no opinion on who should be guardian, if it is determined that Raymond is incompetent. That may, and should, be inquired into at the hearing required by the Probate Code.


author: MONTEMURO, Judge:

text:
    439 A.2d 1236
    CAMBRIA SAVINGS AND LOAN ASSOCIATION v. The ESTATE of Francis L. GROSS, Deceased by Dorothy M. Gross, Administratrix and Dorothy M. Gross, In Her Own Right. CONTRACTOR INDUSTRIES AND ACCEPTANCE CORPORATION and Hyman Datz, Individually.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed Jan. 14, 1982.

      James W. Carroll, Jr., Pittsburgh, for appellant.
    Robert C. Riethmuller, Pittsburgh, for Cambria Savings, appellee.
    David F. Alpern, Pittsburgh, for Contractor, et al., appel-lees.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

INTRODUCTION

This appeal originated as an assumpsit action filed by plaintiff-appellee Loan Association, which had become the assignee of a contract originally executed by defendants-appellants (purchasers of aluminum siding) and additional defendants (the contractor who installed the improvement).

The court below instructed the jury extensively concerning the possibility of finding the contract a nullity and then finding the value of the work to be due and owing on a theory of quasi-contract and unjust enrichment. This theory then became the basis of the opinion of the court below. Upon review of the record, however, we find that this contract remained in force and effective until, under the terms of the contract, an event occurred which discharged the appellants’ duties. Therefore, we reverse and remand to the lower court for entrance of judgment n. o. v. in accordance with this opinion.

FACTS ON THE RECORD

The operative facts are not in dispute. The husband-purchaser had had a health problem and was at home recuperating and anticipating his return to work when he was approached by a contractor on the subject of aluminum siding for his home. The purchasers, husband and wife, discussed the improvements with contractor’s agent, Mr. Datz, and agreed on the work and the price, but took precaution of adding the following clause:

This contract null and void if customer cannot get disability and death and sickness insurance. Customer to pay for insurance.

It is undisputed that “customer” was intended to mean husband-purchaser, Mr. Gross. The contract was signed October 6, 1971. It was in combination with an agreement which assigned the debt to plaintiff Loan Association.

Mr. Datz then dialed an insurance agent, Mr. Mulligan, and introduced him by telephone to Mr. Gross, who inquired into the necessary insurance. Mr. Gross thereafter sent a check to Mr. Mulligan to initiate placement of the insurance.

A couple of days after the contract was signed, the contractor’s crew pulled up to the property to begin the work. Mr. Gross went out and told the men not to start the job as he had not yet received his insurance. A few days later the crew reappeared, and again Mr. Gross refused to permit them to start. The workmen asked to use the telephone and talked with agent Datz, who then had a conversation with Mr. Gross. Mr. Mulligan, the insurance man, then called. After this contact, Mr. Gross permitted the work to begin. The siding was in place approximately one week after the signing of the contract. (R. N.T. 69-73).

Mr. Gross returned to his job on November 1, 1971, but actually put in only ten days of work before becoming permanently disabled (N.T. 73-74). He remained unemployable until his death by suicide in 1979 (N.T. 79). While still working, on November 10, 1971, Mr. Gross signed a Completion Certificate. The language, as quoted in court, reads as follows:

Do not sign this certificate until the dealer has completed the work and/or delivered the materials in accordance with the terms of your contract or sales agreement. (N.T. 83).

Mr. Datz testified that there was no problem whatsoever in receiving this signature, although the Completion Certificate was “the most difficult thing in the world” to obtain if even “the most minorest problem” existed (N.T. 114).

On December 23, 1971, Mr. Gross was informed that he was denied the disability insurance, and his check was refunded. The insurance agent testified that there was no predictable waiting period for insurance, but that there was a requirement that the purchaser must know within six months. (R. Deposition, 37). He also explained that a person who qualifies at date of application should be covered despite later disability, but that a person already disabled and out of work for the foreseeable future would not be eligible for a policy. (R. N.T. 151).

Mr. Casselhoff, President and major stockholder of the additional defendant, acknowledged that he knew of the handwritten clause in the contract “immediately”, and that it was his decision to send the crew out to do the work. When asked why he had made that decision, he replied:

A. Well, at that time, we had contacted Mr. Mulligan for the insurance, and Mr. Gross was satisfied that we were complying to the terms of the contract.
Q. What conclusion did you draw from his acquiescence?
A. I drew the conclusion, of course, that he was satisfied that we were fulfilling the contract.
Q. Whether or not there was insurance?
A. Right. (N.T. 160).

Later, under cross-examination, Mr. Casselhoff also admitted that he never received a written or oral waiver of the clause concerning disability insurance. (N.T. 165-66).

Mr. Datz, the agent with whom the purchasers dealt, asserted that in his experience customers sometimes waived a condition, but when pressed he admitted that Mr. Gross had never done so.

Q. So isn’t it true, Mr. Datz, that with this clause in the contract and insurance still not obtained, you went ahead and authorized the company to do this work?
A. Mr. Gross authorized us to go ahead and do this work, sir. . . . Subsequent to his conversation with Mr. Mulligan.
Q. Right. And this was while there was a clause in the contract that said if he cannot get disability insurance, it would be null and void?
A. Mr. Gross’ knowledge, yes, sir.
Q. And with your knowledge?
A. Yes.
Q. And you realized that it could happen that you could put the siding up and this contract would be null and void?
A. I assume something could happen like that, sure.
(N.T. 131-32).

DISCUSSION

Restatement of Contracts 2d at § 224 defines “condition” as follows:

§ 224. Condition Defined
A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.

The Reporter’s Note following § 224 then discusses the replacement of the former terms “condition precedent” and “condition subsequent.” Conditions precedent are now referred to simply as “conditions”, and the section also abandons the use of “condition” as the term that makes an event a “condition.” “Condition” now refers only to the event itself. “Conditions Subsequent”, always a confusing terminology, are now dealt with under § 230, entitled “Event that Terminates a Duty.”

The Reporter’s Note also states that a contract may be “inartistically drafted” to state that the agreement “shall not come into existence until Event A occurs.” However,

... it is better to view a contract as already in existence, but with the parties’ respective performances subject to the specified event . . . Restatement of Contracts, 2d, § 224, Reporter’s Note at p. 164. ALI (1981).

When the contract is regarded as in force, the new Restatement gives guidance as to when duty under the contract may be extinguished. As already noted, this is a revised approach to the concept formerly entitled “condition subsequent.”

§ 230. Event that Terminates a Duty
(1) Except as stated in Subsection (2), if under the terms of the contract the occurrence of an event is to terminate an obligor’s duty of immediate performance or one to pay damages for breach, that duty is discharged if the event occurs.
(2) The obligor’s duty is not discharged if occurrence of the event
(a) is the result of a breach by the obligor of his duty of good faith and fair dealing, or
(b) could not have been prevented because of impracticability and continuance of the duty does not subject the obligor to a materially increased burden.
(3) The obligor’s duty is not discharged if, before the event occurs, the obligor promises to perform the duty even if the event occurs and does not revoke his promise before the obligee materially changes his position in reliance on it.

An analysis of the preceding wording from the Restatement leads us to conclude that the handwritten clause on the contract which is the subject of this litigation, though ambiguous in some respects, clearly refers to an event “not certain to occur”, but which “must occur before performance is to become due.” The event described, therefore, fits the definition of a “condition.”

The event provided for in the contract terms was a negative condition—a failure to obtain disability insurance, which would terminate the duties under the contract. The event thus, not only fits the definition under § 224, supra, but also that of § 230, supra, and becomes an Event that Terminates a Duty, formerly a “Condition Subsequent.”

Furthermore, the contract was in existence from October 6, 1971. The “inartistic” draftsmanship did not prevent the contract from being valid throughout the time that performance was due. Mr. Casselhoff and Mr. Datz testified that they regarded the contract as in force, and that Mr. Gross also considered it to be in force. Further, all parties knew no waiver had been made and that it was conceivable that the insurance would not be approved. Mr. Gross’s act in signing the completion certificate certainly indicates that he did indeed see the contract as still in force as of November 10, 1971.

Consequently, what we have here is not a void contract, but rather a contract that continued in force until an event constituting a condition of the contract occurred to terminate a duty. The work in this instance was not performed in a legal vacuum which justifies an analysis in quasi-contract for value of the work. The lower court’s instructions to the jury on that point were misleading and resulted in an incorrect finding on that point.

Examination of § 230 (2), the provision in which exceptions to the general rule on discharge are set forth, cannot apply here. The “impracticability” must be shown by the obligee. See Note after § 230, Restatement of Contracts, 2d at 190. The contractor here has never claimed a necessity for completion of the work at an early date. Clearly, it was perfectly practical to wait a couple of months to see whether the insurance would be forthcoming. “Continuance of the duty” against the obligor, Mrs. Gross, is not a minor matter, easily discharged. Mrs. Gross has proceeded in forma pau-peris with the help of Legal Aid. The award of three thousand, six hundred thirty-five dollars and ninety cents ($3,635.90) does subject her to “a materially increased burden.”

Also, the provision of § 230 (2)(a) is not brought into play under the instant facts. There is no allegation of bad faith, and the record certainly reflects good faith behavior by the purchasers.

As shown in the testimony cited supra, § 230 (3) cannot apply either. Both the contractor and his agent honestly admit that Mr. Gross never orally or in writing promised to pay for the work whether he received his insurance or not. The obligee, in this instance, the contractor, did materially change his own position by performance, but not on the strength of any promise by the obligor.

Examination of the wording of the clause does not help us to determine whether the parties originally intended the clause as a condition precedent to any performance, or an event that eventually terminated a duty of performance. The ambiguity must be resolved by the court upon review of the facts.

Certainly, Mr. Gross by his actions, appears to have originally interpreted the clause to mean that his own obligation to obtain insurance was a condition precedent to all other performance by either party. Mr. Casselhoff, however, seems never to have regarded the obtaining of insurance as a condition precedent. He was aware “immediately” of the existence of the clause, but twice sent his crew to perform; and, in the end, he rendered performance within one week of signing of the contract. Consultation between Mr. Gross and Mr. Datz and Mr. Mulligan resulted in a change of action on Mr. Gross’ part, indicating his acceptance of the clause as a condition subsequent or an event causing termination of his duty of payment.

This court therefore finds that the ambiguity inherent in the wording of the clause was at this time resolved by the partes, and that the contractor, under the terms of the existing contract, assumed the risk that after his performance had been rendered, the condition provided as a termination of the duty of his obligor could occur.

Subsequent events, as we have seen, left the purchaser disabled, unhireable, and uninsurable. The failure to obtain disability insurance is no reflection, therefore, of bad faith, but a clear impossibility.

The events of this case were fully covered under the terms of the contract. This is not, in fact, a case of unjust enrichment upon which a quasi-contractual right can be raised in law. The parties made a bargain and its terms were complied with, until, upon the happening of a specified event, the purchaser was released from his duty of payment.

Appellant’s brief cites numerous cases supporting the proposition that courts will not rescue parties from the harsh results of their freely contracted agreements. See, e.g., Third National Bank and Trust Co. of Scranton v. Lehigh Valley Coal Company, 353 Pa. 185, 44 A.2d 571 (1945); Durham Terrace Inc. v. Hellertown Borough Authority, 394 Pa. 623, 148 A.2d 899 (1959).

Subsequent events have made the contractor’s bargain a poor one. However, he knew when the clause was written into the agreement that he had conceded something unusual to his customer as a part of the bargaining process. He also knew, and admits he knew, that Mr. Gross never promised to waive the written condition, and that it was possible that the work could be done and yet the insurance refused. The injury the contractor and its assignee, the Savings and Loan Association, have suffered, is not through a failure of duty of the purchasers, but from their own risks freely assumed under the contract.

Therefore, this court must reverse the holding of the court below and remand so that a judgment non obstante veredic-to may be entered.

PRICE, J., did not participate in the consideration or decision of this case.

      . Although appellees argue that Mr. Gross could have obtained insurance at a higher premium, the testimony of the insurance agent makes it clear that the chances of a disabled and unemployed person obtaining disability insurance are non-existent.