author: BECK, Judge:

text:
    515 A.2d 956
    Robert J. TRIFFIN t/a General Funding, Appellant, v. INTERSTATE PRINTING CO., INC. and Girard Bank.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed Sept. 29, 1986.

      Henry H. Janssen, Philadelphia, for appellant.
    Warren T. Pratt, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

The issue presented is whether funds of a bankrupt on deposit in a bank are immune from execution by a secured creditor where the Bankruptcy Court has expressly permitted the secured creditor to enforce any security interest he may have in the bankrupt’s property under state law.

Appellant Triffin became a secured creditor of Interstate Printing Co., Inc. (“Interstate”) by virtue of a Security Agreement between the parties executed on January 15, 1981. Pursuant to the Security Agreement, Interstate granted Triffin a security interest in “ ... all ... assets now owned or hereafter acquired; and all proceeds of such assets” of Interstate. This interest secured the repayment by Interstate of all monies then owing or in future owed by Interstate to Triffin. On May 15, 1981, Interstate gave Triffin a promissory installment note in the principal amount of $60,000. The note provided that in the event of default by Interstate, Triffin could confess judgment against Interstate for the balance due.

In May 1983, Interstate filed a petition in bankruptcy under Chapter 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of Pennsylvania. In August 1983, Interstate opened two bank accounts with appellee Girard Bank (subsequently rechartered as Mellon Bank (East) National Association) (the “Bank”). By order of the Bankruptcy Court dated September 7, 1983, the automatic stay imposed by Section 362 of the Bankruptcy Code was lifted as to Triffin. The Bankruptcy Court’s order permitted Triffin to “enforce any security interest in the debtor’s property which he may have under state law.”

In accordance with the order of the Bankruptcy Court, and in compliance with the confession of judgment rules, Pa.R.C.P. No. 2950 et seq., Triffin filed a complaint in confession of judgment in the amount of $72,000 in the Philadelphia Court of Common Pleas at September Term 1983, No. 2874 and caused judgment to be entered against Interstate. Interstate did not object and has never objected to the entry of the confessed judgment.

On September 19, 1983, seeking to execute his judgment by attaching Interstate’s accounts at the Bank, Triffin filed a praecipe for a writ of execution and served the writ along with interrogatories in attachment on the Bank. Pa.R.C.P. Nos. 3103, 3111, 3145.

In answer to both these and Triffin’s later filed supplemental interrogatories, the Bank admitted having funds of Interstate on deposit. Triffin then moved for entry of judgment on the pleadings under Pa.R.C.P. 3145(a).

In its answer to this motion, the Bank opposed attachment of the accounts, claiming that these accounts were not subject to attachment except pursuant to order of the Bankruptcy Court because they were, in the Bank’s terms, “debtor-in-possession” accounts. The lower court ordered depositions to determine whether the accounts were “debt- or-in-possession” accounts. A deposition of a bank official was taken and certain documents were produced. After the deposition transcript and documents were filed with the court, the court denied Triffin’s motion, and in its order stated that it appeared that the “account at issue is a Debtor-in-Possession account and therefore not subject to attachment____” This timely appeal followed.

Initially, we must determine the propriety of the Superior Court’s jurisdiction. We conclude that pursuant to Pa.R.A.P. 311(a)(2), the matter is ripe for appellate determination and, therefore, the Superior Court’s assertion of jurisdiction is proper.

Rule 311(a)(2) authorizes appeals from interlocutory orders that either do or refuse to modify, confirm or dissolve attachments or similar matter affecting the possession or control of property. The Bank asserts that the order of the trial court did not accomplish any of the results contemplated by Rule 311(a)(2). We find that the Bank’s assertion is incorrect.

To comply with Rule 311(a)(2), Triffin sought judgment on the pleadings which, if granted, would have confirmed Triffin’s attachment.

In opposing Triffin’s motion for judgment on the pleadings, the Bank was seeking to have the trial court refuse to confirm the attachment by not entering judgment against the garnishee Bank. This was the heart of the dispute that the lower court’s order resolved against Triffin and the court did so only after permitting discovery of the facts pertinent to whether the Interstate accounts could be attached. There was no further action required by the court. The court had all relevant facts before it when it denied Triffin’s judgment on the pleadings, thereby refusing to confirm the attachment. Pa.R.A.P. 311(a)(2). Therefore, Triffin’s appeal from the court’s denial of judgment on the pleadings falls squarely within Pa.R.A.P. 311(a)(2), as an action refusing to confirm an attachment.

Turning to the substance of this appeal, Triffin argues that the order of the Bankruptcy Court subjected the accounts to attachment by Triffin. The Bank, on the other hand, asserts that the accounts are the property of Interstate’s bankruptcy estate and as such are not subject to attachment.

The Bank maintains that since Interstate is a debtor-in-possession of its bankruptcy estate and, as such, generally has all the rights and powers and must perform all the duties and functions of a trustee of the bankrupt’s estate, 11 U.S.C.A. §§ 1101(1), 1107(a), the Bankruptcy Code requires the Bank to turn over those accounts only to Interstate as debtor-in-possession. Id. § 542(b).

The Bank relies on Georgia-Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983). In that case, appellant was the debtor-in-possession of a bankrupt contracting firm. Prior to filing for bankruptcy, the general contractor and two property owners had entered into construction contracts. Under these contracts, the owners were indebted to the general contractor. The general contractor was in turn indebted to its materialmen.

After the general contractor filed for bankruptcy, the materialmen claimed that the money due the contractor from the property owners was in fact directly payable to the materialmen, since it was allegedly subject to a state law constructive trust in their favor. The bankruptcy court rejected the materialmens’ claims and ordered that the owners pay the money directly to the debtor-in-possession. One of the owners complied. The other owner and the materialmen appealed to the district court which reversed the bankruptcy court. Id. at 963-65.

On appeal by the debtor-in-possession, the Court of Appeals for the Fifth Circuit reversed the district court and held that the remaining owner was obligated to pay the debtor-in-possession. In so holding, the Fifth Circuit opined that even if the funds were subject to a constructive trust,

... [the debtor-in-possession] had a legal interest in the property so impressed, which was thus property of the estate, § 541(a)(1), required to be turned over to it, § 542(a), (b), subject to the bankruptcy court’s power to recognize the suppliers’ equitable interest, § 541(d) or to issue [a] protective order prohibiting or conditioning its use if a cash equivalent, § 363(c)(3), (4) and § 541(d). Georgia-Pacific [the owner], a debtor of Sigma [the debt- or-in-possession], could not refuse to pay over sums due to the estate and to which the estate had legal title on the contention that some other [entity] had a priority or a constructive trust claim to these sums superior to that of Sigma____ It is for the bankruptcy court, not a stakeholder with possession of the assets in which the debtor has at least a legal interest, to determine such contentions.
Accordingly, the district court was in error in not requiring Georgia-Pacific to turn over to Sigma ... the sums owed by it to Sigma for contractual services performed. If indeed all or part of the money so owed was subject to a constructive trust in favor of the suppliers ..., the bankruptcy court would be required to recognize those equitable interests and, perhaps, the debtor-in-possession’s sole permissible administrative act with regard thereto would be to pay over or endorse the sums due to the beneficial owners of the property.

Id. at 968.

We find that rather than establishing the Bank’s duty to pay the funds in Interstate’s accounts only to Interstate, Georgia-Pacific supports precisely the opposite conclusion. As the above-quoted language clearly indicates, it is not for a creditor or a debtor of the bankrupt estate, nor for the debtor-in-possession itself, to determine to whom funds allegedly owed to the estate are to be paid. This is within the exclusive purview of the bankruptcy court. Crucial to the instant case, therefore, is the order of the Bankruptcy Court permitting Triffin “to enforce any security interest in the debtor’s property which he may have under state law.” Indeed, the record before this Court does not indicate that Interstate appealed the Bankruptcy Court’s order or opposed Triffin’s confession of judgment against Interstate.

In other cases decided by the courts of this Commonwealth involving a conflict between the execution and attachment procedures available under state law and the control of property of a bankrupt vested in the receivers or trustees thereof, our courts have held that the execution process cannot proceed except upon order of the court controlling the bankruptcy proceeding. See, e.g., Thompson v. McCleary, 159 Pa. 189, 28 A. 254 (1893) (execution against property held by receivers set aside and judgment debtor expressly directed to proceed in bankruptcy court to enforce rights in property of bankrupt); Davis Coal & Coke Co. v. Hess, 30 Pa.Super. 193 (1906) (suggesting in dictum that state court should stay execution process pending bankruptcy court’s resolution of judgment debtor’s application for permission to proceed with execution). This precedent demonstrates that Triffin proceeded in precisely the correct manner by obtaining permission of the Bankruptcy Court to enforce his interest in Interstate’s property and only then commencing execution proceedings in the court below.

In attempting to avoid Triffin’s execution of his judgment, the Bank has refused to recognize the order of the Bankruptcy Court. It resists the attachment of Interstate’s accounts because it perceives that it would create for itself potential liability to the bankrupt’s (Interstate’s) estate. We find the Bank is under a duty to recognize the Bankruptcy Court’s order. Triffin’s action in executing on his judgment was proper under state law. Under the facts of this case, we conclude that the accounts are not immune from attachment in execution because of the Bankruptcy Court’s order. To hold otherwise would place Triffin, a judgment creditor who has complied with the requisites to perfect his claim, in a juridical limbo despite the Bankruptcy Court’s order permitting him to pursue that claim in accordance with state law.

We point out that the Bank’s characterization of the accounts as “debtor-in-possession” accounts has no legal significance. The Bank has not pointed to any order of any court or any provision of any law requiring it to so characterize these accounts. Thus, the characterization serves only as an internal aid to the Bank and reflects the fact that the depositor has filed for bankruptcy.

The Bank’s attempt to avoid attachment is violative of the order of the Bankruptcy Court which expressly granted Triffin the right to pursue state remedies and removed him from the constraints of the Bankruptcy Code’s stay provisions. In all respects, Triffin’s right to attachment of Interstate’s accounts on deposit with the Bank is valid. Therefore, the trial court erred in denying Triffin’s motion for judgment on the pleadings.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . It should be noted that Interstate itself has never actively participated in the attachment proceedings. Interstate’s only participation occurred in connection with Triffin’s Petition for Equitable and Supplemental Relief in Aid of Execution, filed September 20, 1983, one day after issuance of the writ of execution. The Petition requested, inter alia, an order directing Interstate to deposit all funds it received thereafter in its accounts at the Bank, to refrain from making any payments to anyone in future and to produce to Triffin all of Interstate’s original records, including accounts receivable ledgers, and all of its assets. Although not reflected on the docket, the record contains a stamped filed timely answer by Interstate to the Petition. In its answer, Interstate objected to the attachment of the accounts at the Bank on the ground that they were debtor-in-possession accounts not subject to Triffin's security interest. Two weeks later, the Bank answered the Petition in substantially the same manner as had Interstate. Although on October 28, 1983 the lower court entered an order denying the Petition, the court later agreed to reconsider the Petition. On March 23, 1984, the lower court ordered that in connection with its reconsideration of the Petition, depositions be taken. This order was later modified when, Triffin having moved for judgment on the pleadings, the court ordered that the depositions be taken in connection with its consideration of that motion.

      . Pa.R.C.P. No. 3145(a) provides: "The procedure between the plaintiff and the garnishee shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action."

      . Pursuant to Pa.R.C.P. No. 3111(b) it is contemplated that the garnishor, Triffin, will secure a judgment against the Bank, the garnishee, prior to the garnishor’s execution upon the debtor’s (Interstate's) property held by the Bank. Triffin sought such judgment when it moved for judgment on the pleadings.

      . Technically the action taken by Triffin constitutes a garnishment rather than an attachment. Attachment refers to a creditor’s seizure of property in the hands of the debtor to collect a debt. Garnishment refers to a proceeding through which a creditor collects his debt out of property of the debtor in the hands of a third party. Rule 311(a)(2) refers specifically to attachment and also to “[sjimilar matter affecting the possession or control of property.” We conclude that whether the action is attachment as the trial court refers to it or garnishment, the appealability of the matter is controlled by Rule 311(a)(2).

      . In Pennsylvania, a creditor-debtor relationship is established between a depositor and a bank when deposits are made with a bank.
        See Prudential Trust Company’s Assignment, 223 Pa. 409, 72 A. 798 (1909). The Bank argues that under the Bankruptcy Code, Interstate’s creditor status against the Bank made the money on deposit with the Bank the property of the bankruptcy estate. See 11 U.S.C. § 541(a)(6), (7).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    515 A.2d 960
    Ruby A. JOHNSON v. John E. JOHNSON and Eva Lou Winters Johnson, Executrix. Appeal of Eva Lou Winters JOHNSON, Executrix.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed Sept. 29, 1986.

      James D. Jordan, Media, for appellant.
    Leonard J. Tripodi, Media, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   PER CURIAM:

In 1981 appellee, Ruby Johnson, obtained a judgment against John E. Johnson, her former husband, for non-payment of support. The judgment was not paid. On October 26, 1984, John’s father died. His father’s will, which was admitted to probate on November 5, 1984, contained a specific bequest to John of $6,000. On November 30, 1984, Ruby filed a praecipe for a writ of execution on the 1981 judgment in the amount of $9,558.11 against Eva Lou Winters, the executrix of John’s father’s estate. At the same time, Ruby filed interrogatories which were served on the executrix together with the writ on December 3, 1984. On December 10, 1984, John filed a renunciation and disclaimer of his interest under his father’s will. On January 15, 1985, the executrix filed answers to the interrogatories in which she asserted that because of John’s renunciation and disclaimer, he had no interest in the estate.

Ruby petitioned for a Rule to Show Cause Why the Answers to Interrogatories Should Not Be Stricken As Contrary to the Law. A “hearing” consisting exclusively of oral argument was held on May 13, 1985. On August 2, 1985, the court entered an order which recited that upon “the Petition and Briefs of the parties, there being no facts in dispute, it is ORDERED that the Answers to the Interrogatories are hereby stricken as legally inaccurate and judgment is entered against [the executrix] ... in the amount of $6,000.00 together with such interest and/or costs as allowed by statute____” The order was accompanied by an “Opinion and Judgment.” On August 9, 1985, the executrix filed a motion entitled “Motion for Post-trial Relief” in which the only issue raised was her claim that the trial court erred by failing to address the issue of the effective date of the disclaimer. By order dated September 20, 1985 and filed September 25, 1985, the trial court dismissed the exceptions. The court further directed that “Upon praecipe of the plaintiff, the Office of Judicial Support shall enter the prior Order as a final Order and Judgment.” On October 3, 1985, judgment was entered, and on October 11, 1985, the executrix filed a notice of appeal from the Order entered on September 25, 1985 and the judgment entered on October 3, 1985.

Because an appeal was not filed from the August 2, 1985 order and within 30 days thereof, we must quash this appeal.

The Rules of Civil Procedure for the Enforcement of Money Judgments do not provide for the filing of a Rule to Show Cause Why Interrogatories Should Not Be Stricken. The Rules provide that the procedure between the plaintiff and the garnishee “shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action. Pa.R.C.P. 3145(a). In her Rule to Show Cause, Ruby Johnson sought to have the court decide, based solely on the interrogatories and the answers thereto, that the executrix was holding assets of John Johnson. Construing the interrogatories filed by Ruby Johnson as a complaint and the answers to interrogatories filed by the executrix as answers, we conclude that Ruby Johnson’s Rule to Show Cause was actually a Motion for Judgment on the Pleadings.

Pa.R.C.P. 3147 permits the trial court to enter judgment on the pleadings for the plaintiff and against the garnishee for the property of the defendant in the garnishee’s possession provided that the money judgment so entered does not exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs. The August 2, 1985 order made in response to the argument on the Rule, which actually was a Motion for Judgment on the Pleadings, satisfied the requirements of Rule 3147 for a judgment on the pleadings. The court specifically stated in the order that “judgment is entered against the garnishee” and that it was entered in the amount of $6,000 plus interest and costs but “only to the extent that a sum would have become payable, but for the disclaimer, as determined by the Orphan’s Court and not to exceed $6,000 [the amount of the legacy] and such interest and costs as allowed by law.” Thus the requirements of Rule 3147 that judgment be entered, that it be for the property in the garnishee’s possession, and that it be for no more than the amount of the judgment which the plaintiff has against the defendant, were all satisfied by the August 2, 1985 order. Therefore, we hold that the order of August 2,1985 was a judgment on the pleadings pursuant to Pa.R.C.P. 3147.

A judgment on the pleadings is a final and appealable order, Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984), and a judgment on the pleadings under Pa.R.C.P. 3147 is also a final, appealable order, 9 Goodrich Amram 2d § 3147:4, because it has the effect of terminating the litigation and putting the party against whom the judgment is entered permanently out of court. See: Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) (order terminating the litigation and putting party out of court is final order.) See also: U.S. National Bank in Johnston v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Rossi Estate, 354 Pa.Super. 124, 511 A.2d 219 (1986) (orders granting preliminary objections in the nature of a demurrer are final and appealable.) In this case, when judgment was entered on August 2, 1985 against the executrix for $6,000, representing John Johnson’s legacy in the possession of the executrix, the executrix was out of court and Ruby Johnson could have executed on the judgment. Therefore, the order of August 2, 1985 was final and appealable. Any appeal therefrom had to be filed within 30 days. Pa.R.A.P. 903(a).

The appeal was not filed until October 11, 1985 after the trial court had ruled on the executrix’s post-trial motions. There is no provision in the Rules of Civil Procedure for the Enforcement of Money Judgments for filing post-trial motions to the entry of judgment against the garnishee. Moreover, there was never any trial in this case; judgment was entered prior to trial. Therefore, it was improper for the executrix to file post-trial motions, and the filing of such motions did not extend the time in which an appeal could be filed. See: Geek v. Smeck, 275 Pa.Super. 259, 418 A.2d 711 (1980); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977) (filing a petition for reconsideration or rehearing, even when it is the appropriate procedure, does not extend the time in which an appeal must be taken from summary judgment.) Because the instant appeal was not filed within 30 days of the August 2, 1985 order entering judgment on the pleadings, we are without jurisdiction to consider the appeal.

Appeal quashed.

      . Although in her appellate brief at 2, the executrix states that she is appealing “from the Final Order filed on or about the 2nd day of August, 1985,” her notice of appeal states that the appeal is from both the Final Order entered on September 25, 1985 and the judgment entered on October 3, 1985.


author: WICKERSHAM, Judge:

text:
    515 A.2d 963
    Gregory T. GREENWOOD, Appellant, v. Kristen HILDEBRAND.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed Oct. 1, 1986.

      David L. Lutz, Harrisburg, for appellant.
    James L. Goldsmith, Harrisburg, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

Gregory T. Greenwood appeals from the judgment entered in his favor by the Court of Common Pleas of Dauphin County following a trial by jury in this personal injury action.

On July 24, 1981, appellant, then a summer intern at the Lebanon Veterans’ Administration Hospital, Lebanon, was travelling east on West Chocolate Avenue (U.S. Route 422) in Hershey. He was stopped in a line of traffic at a red light when his vehicle was rear ended by a vehicle driven by appellee, Kristen Hildebrandt. As a result, appellant’s vehicle was forced into the rear of the vehicle preceding it. Appellee admitted that she failed to see appellant’s vehicle or stop in time, although there was conflicting testimony at trial as to how fast she was travelling at the time of the collision.

As a result of the impact, appellant was forced forward into the steering wheel and dashboard, suffering injuries to his neck, left shoulder, and left arm. Shortly after the accident, appellant drove to the Hershey Medical Center, where he was treated and released. Appellant was seen on three other occasions at the Hershey Medical Center during the remainder of the summer of 1981, each time as an outpatient. At the conclusion of the summer, appellant returned to Ohio where he resumed his graduate studies at Bowling Green State University. There he sought further treatment for his injuries from various medical personnel. Eventually a diagnosis of thoracic outlet syndrome was made, and in October 1982, appellant was hospitalized for five days to undergo an unsuccessful rib resection. Thereafter he continued to receive periodic inpatient and outpatient treatment in both Bowling Green and Indianapolis, Indiana, where he moved in August 1988.

On July 22, 1988, appellant commenced the instant suit for damages stemming from the injuries he had received in the accident. A jury trial held from March 4-6, 1985 resulted in an award in his favor in the amount of $7,500.00. On March 15, 1985, appellant filed a motion for a new trial, which was denied on July 1, 1985. Following the entry of judgment on the verdict, appellant filed this timely appeal.

Appellant raises the following three issues before us:

1. Did the trial court err in ruling that Dr. Greenwood was not a domiciliary of Ohio, thereby excluding evidence of Dr. Greenwood’s total medical expenses recoverable under Ohio law?
2. Did the trial judge err in finding that a damage award of $7,500 was not inadequate as a matter of law?
3. Did the trial judge err by striking portions of Dr. Perry Eagle’s deposition testimony?

Brief for Appellant at 3.

Appellant first argues that the lower court erred in finding him a domiciliary of Kentucky, a no-fault state which disfavors double recovery, rather than Ohio, which allows such recovery.

Section 110(c) of the now repealed Pennsylvania No-fault Motor Vehicle Act contains the choice of law provisions for determining the rights of an accident victim injured in Pennsylvania, but domiciled in another state, to sue in tort. It states: “The right of a victim ... to sue in tort shall be determined by the law of the state of domicile of such victim.” 40 Pa.C.S. § 1009.110(c)(2); Bell v. Santiago, 351 Pa.Super. 431, 506 A.2d 424 (1986). The lower court ruled that appellant was a domiciliary of Kentucky on the date of the accident, and therefore, his right to sue in tort was governed by Kentucky law. We agree.

The issue of domicile is a mixed question of law and fact reviewable by an appellate court. Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); McLarin v. McLarin, 350 Pa.Super. 153, 504 A.2d 291 (1986). Domicile is a relationship which the law creates between an individual and a particular locality or country. The question of domicile is to be determined by the law of the forum, in this case, Pennsylvania. See 25 Am.Jur.2d Domicil § 3 (1966). A domicile of origin is that which one acquires at birth; it is presumed to continue until another domicile is affirmatively proved. In re Estate of McKinley, 461 Pa. 731, 337 A.2d 851 (1975). It is well-settled that a minor child has the same domicile as his or her parents. Coombs v. Coombs, 225 Pa.Super. 304, 303 A.2d 498 (1973). When a child reaches majority, he or she may acquire a new domicile by voluntarily establishing a new residence with the present intention to make it either his or her permanent home, or his or her home for the indefinite future. Shishko v. State Farm Insurance Co., 553 F.Supp. 308 (E.D.Pa.1982), aff'd, 722 F.2d 734 (3d Cir.1983); In re Estate of McKinley, supra; McKenna v. McKenna, 282 Pa.Super. 45, 422 A.2d 668 (1980). Thus, the terms domicile and residence are not interchangeable; unlike residence, which is a physical fact, domicile is a matter of intention. Laird v. Laird, 279 Pa.Super. 517, 421 A.2d 319 (1980). Because domicile continues until a new domicile is established, an individual asserting a change of domicile has the burden of proving it. Shishko v. State Farm Insurance Co., supra. This burden entails proving by clear and convincing evidence, residence in a new locality with present intent to make that residence a permanent home, coupled with the manifested intent of abandoning the former domicile. In re Estate of McKinley, supra; McLarin v. McLarin, supra; Zinn v. Zinn, 327 Pa.Super. 128, 475 A.2d 132 (1984).

At the time of the accident in 1981, appellant was a 26 year old graduate student at Bowling Green State University in Ohio (“B.G.S.U.”). His family had resided in Indiana until appellant was in high school, at which time the family moved to Kentucky. Thus, Kentucky became appellant’s domicile in 1971. After graduation from high school in Kentucky in 1973, appellant left to attend DePauw University in Indiana, spending most of his summers back in Kentucky. Appellant testified that he still considered Kentucky to be his home during college. In 1978, appellant began his graduate studies in Ohio, but resided for brief periods of time in Connecticut, Kentucky, Indiana, and Pennsylvania before obtaining his degree in 1983. At that point, appellant, who had married in 1982, and his wife moved to Indianapolis, Indiana, where they resided at the time of trial.

When appellant moved to Ohio in 1978, he satisfied the first requirement of domicile—he had taken up residence in Ohio before the accident. We are not convinced, however, that he possessed the second requirement of domicile—intent. It is apparent that appellant took up residency in Ohio for the purpose of attending graduate school. He testified that the sole reason he was in Ohio was to attend B.G.S.U. and that it was not his intention to remain in Ohio after he had graduated. Less than two months prior to the accident, appellant applied to the Kentucky Higher Education Assistance Authority for a guaranteed student loan, listing his permanent home address as Frankfort, Kentucky. A section of that application was completed by B.G.S.U., and it also listed appellant as a Kentucky resident. Furthermore, appellant continued to use his Kentucky driver’s license and receive mail at his parent’s home in Kentucky.

We note that in 1980, appellant applied for and was granted a waiver of the non-resident fee at B.G.S.U. In order to obtain such a waiver, however, he needed to demonstrate only that he had lived in Ohio for twelve consecutive months and that no part of his financial support had been provided by non-Ohio residents. Such conditions are not necessarily indicative of domicile. Likewise, the fact that appellant voted, paid taxes, and had a bank account in Bowling Green is more indicative of residence than of domicile.

As stated above, the acquisition of a domicile of choice requires both physical presence and an intent to remain permanently or indefinitely. McKenna v. McKenna, supra. Since the concept of change of domicile requires some free exercise of will on the part of the person involved, id., out-of-state students generally have been viewed as temporary residents who are located in the state only for the duration and purpose of their studies. 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3619 (1984). Such an out-of-state student is presumed to lack the intention necessary to establish a new domicile. Shishko v. State Farm Insurance Co., supra. Appellant herein did not meet his burden of proof by clear and convincing evidence that he had made Ohio his new domicile. Therefore, we must agree with the lower court that appellant’s domicile was still Kentucky at the time of the accident. Accordingly, the instant action was governed by the law of Kentucky, and the lower court did not err by refusing to instruct the jury under the law of Ohio.

Next, appellant argues that even if he was a Kentucky domiciliary, the court erred in excluding evidence of his total medical expenses. The lower court determined that since Kentucky law provided for $10,000.00 in basic reparation benefits, that amount should be subtracted from the total medical expenses, and not offered into evidence for the jury's consideration. Again, we agree.

Once the court decided that appellant was domiciled in Kentucky at the time of the accident, section 110(c)(2) of our No-fault Act provides that his right to sue in tort should be determined by the law of Kentucky. Like Pennsylvania prior to the repeal of the No-fault Act, Kentucky has abolished tort liability to the extent that basic reparation benefits (i.e., basic loss benefits) have been paid to a victim of an automobile accident.

[I]t is clear to us that under the Kentucky No-Fault Act, an injured party is not entitled to an award of damages from the defendant in the trial on liability for any item of damages which was compensated by BRB [Basic Reparation Benefits]. KRS 304.39-060(2)(a) provides:
Tort liability with respect to accidents occurring in this commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is “abolished, ” for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneconomic detriment qualifies under subsection (2)(b) hereof.

Progressive Casualty Insurance Co. v. Kidd, 602 S.W.2d 416, 417-18 (Ky.1980); Fann v. McGuffey, 534 S.W.2d 770 (Ky.1975). Since appellant has received, or is entitled to receive, basic reparation benefits of $10,000.00 under his father’s Kentucky automobile insurance policy, he is precluded by Kentucky law from recovering the same amount from appellee. As clearly enunciated by the Supreme Court of Kentucky, double recoveries by an injured party are disfavored. See, e.g., Progressive Casualty Insurance Co. v. Kidd, supra; United States Fidelity & Guaranty Co. v. Smith, 580 S.W.2d 216 (Ky.1979); State Farm Mutual Automobile Insurance Co. v. Fletcher, 578 S.W.2d 41 (Ky.1979).

Appellant asserts, however, that even if he is precluded from recovering the $10,000.00 paid as basic reparation benefits, he is still entitled to submit to the jury the full amount of his medical bills, $13,929.99, which include the $10,000.00 no-fault payment, as evidence of pain of suffering. Appellant cites Kentucky caselaw which permits the admission of medical bills to prove the extent of pain and suffering. See Barnes v. Jones, 351 S.W.2d 506 (Ky.Ct. App.1961).

The lower court denied admission of the entire amount of medical bills, because it held that under Pennsylvania caselaw, the dollar amount of medical services provided is not probative of the degree and extent of pain and suffering experienced by the victim and thus the medical bills incurred by that victim are irrelevant and inadmissible as evidence to measure pain and suffering. See Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). Clearly, Pennsylvania and Kentucky have different laws regarding the admissibility of medical bills which are not recoverable under their no-fault acts. The question then becomes which state’s evidence law is applicable—Pennsylvania’s or Kentucky’s? While the lower court was required to follow Kentucky law to determine what could be properly sought and recovered at trial, we agree that it is the evidentiary law of Pennsylvania which governs. See Restatement (Second) of Conflict of Laws § 138 (1971) (local law of the forum determines admissibility of evidence); 16 Am.Jur.2d Conflict of Laws § 131 (1979) (questions of evidence are governed by the law of the forum). Compare Bell v. Santiago, supra (while right of victim of motor vehicle accident to sue in tort shall be determined by law of his domicile, when tort action is brought in a Pennsylvania court, Pennsylvania statute of limitations and its interpretation as to when and how it begins to run, will be applied).

Therefore, evidence as to the amount of medical bills paid by no-fault insurance was not admissible to prove pain and suffering and the court properly excluded such evidence.

In his second issue, appellant contends that the $7,500.00 verdict in his favor was inadequate as a matter of law. After careful consideration of the record, the briefs of the parties and the applicable law, we find that the opinion of the learned trial Judge, The Honorable Warren G. Morgan, has thoroughly and correctly addressed this issue and we see no need to discuss it further.

Finally, appellant argues that the court erred in striking certain portions of a defense witness’s deposition testimony. Pursuant to Pa.R.C.P. No. 4020(a)(5), the lower court admitted the deposition testimony of Dr. Perry Eagle at trial. Before it was read to the jury, however, the trial court deleted from the record all references to insurance or insurance companies made by Dr. Eagle. Appellant contends that the court erred in not admitting Dr. Eagle’s testimony verbatim.

The general rule in Pennsylvania is that reference to insurance coverage held by one of the parties to an action will be excluded where such reference would be irrelevant and prejudicial. Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971); Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., 317 Pa.Super. 513, 464 A.2d 440 (1983), aff'd, 504 Pa. 618, 476 A.2d 350 (1984); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). This “ ‘collateral source’ rule was intended to avoid precluding a claimant from obtaining redress for his or her injury merely because coverage for the injury was provided by some collateral source, e.g. insurance.” Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. at 623, 476 A.2d at 352. The rule is intended to prevent a wrongdoer from taking advantage of the fortuitous existence of a collateral remedy. Id. Although it is unclear whether, under the facts of this case, the collateral source rule would even apply, since appellant was not the alleged wrongdoer, we find no harm in the court’s exclusion of the testimony.

In the instant case, appellant does not argue that the deleted references to insurance prejudiced him in any way, but rather that the court erred by editing the exact answers given by Dr. Eagle in response to appellee’s counsel’s questions. His contention is that when a party asks its expert witness a question, the answer must be accepted as is; the asking party cannot be permitted to modify its expert’s answers. Appellant does not support his contention by reference to any caselaw, however, and we can find absolutely no prejudice to appellant resulting from the editing. We note that only six phrases, all concerning insurance coverage, were striken in the forty-three page deposition, and even with the deletions, the testimony was easily readable and understandable. Since the deletion of the witness’s references to insurance neither changed the substance or content of the witness’s testimony, except to exclude the prejudicial and irrelevant references to insurance, nor prejudiced appellant in any way, we find no error in the trial court’s compliance with the “collateral source” rule.

Finding appellant’s issues to be meritless, we affirm the judgment of the court below.

Judgment affirmed.

      . The driver of the third vehicle, William J. Bohm, III, of State College, was not a party to this suit.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 to 701, 40 P.S. § 1009.101 et seq, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . We note that the court did state to the jury that the $3,929.99 of medical bills admitted represented the unpaid medical expenses of appellant.

      . Pa.R.C.P. No. 4020(a)(5) states:
      Rule 4020. Use of Depositions at Trial
      (a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
      (5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.


author: HESTER, Judge:

text:
    515 A.2d 969
    COMMONWEALTH of Pennsylvania v. Charles R. BOMBOY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 11, 1986.
    Filed Oct. 1, 1986.

      Michael T. Hudock, Public Defender, Mifflinburg, for appellant.
    Graham C. Showalter, Lewisburg, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Appellant appeals from the judgment of sentence entered upon his conviction of writing fourteen bad checks. He challenges the trial court’s finding that the Commonwealth exercised due diligence in searching for him while he eluded arrest, justifying an extension of his trial date under Pa.R. Crim.P. 1100. He also challenges the court’s interpretation of Rule 1100(c) which allowed the Commonwealth to file a petition for extension more than 180 days after the complaints were issued. We are persuaded that the painstaking analysis of President Judge James F. McClure, Jr., is correct, and affirm.

Complaints were issued against appellant on November 23, 1981, for writing bad checks. He was arrested on May 7, 1982, 165 days later. On June 1,1982, 190 days following issuance of the complaints, the Commonwealth filed a petition for extension of time under Rule 1100 due to appellant’s unavailability between November 23, 1981, and May 7, 1982. A hearing was held on the contested petition and the trial court held that the petition for extension was timely under Rule 1100(c), and the Commonwealth exercised due diligence in apprehending appellant, thereby justifying an extension of the Rule 1100 run-date. Following conviction, sentencing and post-trial proceedings, appellant continues to press his Rule 1100 arguments.

It is clear that the Commonwealth proved due diligence in its efforts to apprehend appellant between December 4, 1981, and May 7, 1982. The Commonwealth’s efforts are well-documented in the record and in the Rule 1925 opinion of President Judge McClure. Appellant, assisted by his wife, willfully and repeatedly eluded the constable who attempted to serve a summons upon him. On numerous occasions, the constable sought appellant at his house, “staked out” the residence, questioned relatives and neighbors, looked for appellant’s car, questioned merchants and bankers, and enlisted the aid of other law enforcement authorities, including the state police, who finally arrested appellant, hiding in a closet. These efforts suffice to establish that the Commonwealth exercised due diligence in attempting to apprehend appellant. Commonwealth v. Cottman, 327 Pa.Super. 453, 458, 476 A.2d 40, 42-43 (1984); Commonwealth v. Winn, 327 Pa.Super. 296, 475 A.2d 805 (1984); Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982).

The more difficult issue is whether the Commonwealth may file a Rule 1100 petition for extension more than 180 days after issuance of a complaint, when the basis for the extension is the unavailability of the defendant. Rule 1100(c)(1) provides: “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.” (Emphasis added). Appellant argues that the emphasized portion of the rule, as interpreted by the Pennsylvania Supreme Court in Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979), makes the June 1, 1982 petition untimely, requiring his discharge. Morgan stated that:

However, a request for an extension under section (c) must be made to the court prior to the expiration of the prescribed period under the Rule. Thus, even if this record might have met the requirements for the grant of such an extension, that avenue is not here available to the Commonwealth since it failed to attempt to pursue this course prior to February 2, 1976.

Morgan, supra, 484 Pa. at 126, 398 A.2d at 976. Appellant believes the Commonwealth must file its petition for extension prior to the expiration of 180 days after issuance of a complaint.

The Commonwealth argues that the trial court was correct in holding otherwise. We agree that neither Morgan, supra, nor Rule 1100(c)(1) proscribes the procedure which was followed in this case.

Rule 1100(a) normally requires a trial to commence within 180 days from the date a complaint is filed, but is tempered by subsection (d)(1) which states: “In determining the period for commencement of trial, there shall be excluded therefrom: (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.” In appellant’s case, the 153 days between December 4, 1981, and May 7, 1982, are excluded under subsection (d)(1), so the run-date for his trial was automatically extended to October 22, 1982. The Commonwealth’s petition for extension, filed June 1, 1982, was well within the period for commencement of trial, as required by subsection (c)(1).

The seemingly contrary language quoted from Morgan, supra, followed the holding that there was no excludable time in that case, and the Commonwealth’s Rule 1100 application filed after the run-date was, of course, untimely. In Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), quoted in Morgan, supra, the court, referring to Rule 1100, stated:

Whether or not an application for an extension is timely filed is determined by computing the amount of time which has lapsed from the filing of the complaint to the date on which the Commonwealth files its application, less any periods which are properly excludable pursuant to section (d) of the Rule.

Id., 469 Pa. at 15, 364 A.2d at 697 (emphasis added).

Moreover, since Morgan, this court has repeatedly deemed Rule 1100 applications to be timely even though filed more than 180 days after the complaint, when time was excludable under subsection (d). See, e.g., Commonwealth v. Casper, 327 Pa.Super. 362, 475 A.2d 840 (1984); Commonwealth v. Winn, supra; Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982); Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979). Accordingly, we affirm the trial court’s conclusion that the Commonwealth’s Rule 1100 application was timely due to the period excludable pursuant to subsection (d)(1).

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    515 A.2d 971
    COMMONWEALTH of Pennsylvania v. Ronnie PEPPERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 21, 1986.
    Filed Sept. 30, 1986.

      James R. Rosato, Jr., Assistant Public Defender, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WATKINS, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery, conspiracy, and escape. Appellant contends that the trial court erred in (1) denying his pre-trial motion to suppress evidence seized as the result of an illegal arrest, and (2) denying his motion to sever trial of the escape charge from trial of the charges of robbery and conspiracy. We disagree and, for the following reasons, affirm.

The lower court stated the facts as follows:

On June 7, 1985, at approximately 3:15 A.M., a Turkey Hill Minit Market located in Hummelstown, Pennsylvania was robbed at gunpoint by two black males. A few minutes after this incident, Roger Olinger observed a white, mid-1970’s model Dodge or Plymouth with heavy body damage parked in the right hand berm of the road facing oncoming traffic. Mr. Olinger stopped at the Turkey Hill store and discovered that the store had been robbed. Officer Scott Dimmick of the Hummelstown Borough Police was called to the scene. Mr. Olinger gave the officer a description of the car that he noticed on the way to the market and Officer Dimmick relayed the description of the car and the suspects over the police radio.
Officer Kenneth Beard of the Swatera Township Police Department heard the description of the suspect vehicle and later observed what he believed to be the suspect vehicle travelling west on Route 322 in Swatara [sic] Township. He informed Officer Dimmick that he was following the suspect vehicle and asked for assistance ____ When Officer Beard noticed another police car, he activated his emergency lights and siren. As the suspect vehicle came to a stop, both occupants exited and started to run away. Officers Simmons and Zimmerman apprehended the defendant who was immediately placed under arrest.

Lower Court Opinion at 1-2. Appellant was arrested in Harrisburg. Id. at 4.

Appellant first contends that the lower court erred in denying his motion to suppress evidence seized as the result of an unlawful arrest because the arresting officer arrested him outside of his primary jurisdiction. We disagree. The Municipal Police Jurisdiction Act (“Act”), 42 Pa.C.S.A. §§ 8951-8954 provides in relevant part:

(a) General rule—Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
* * * * * #
(3) Where the officer has been requested to aid or assist any local, state or federal law enforcement officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.

42 Pa.C.S.A. § 8953(a)(3). Our appellate courts have not yet had an opportunity to address the application of subsection (3). After reviewing the record in the instant case, we hold that the arresting officer acted properly in arresting appellant outside of his primary jurisdiction because he had “been requested to aid or assist [a] local ... enforcement officer.” Id. Here, Officer Dimmick broadcast a description of the robbery suspects over the police radio. N.T. November 20, 1985 at 11. Several minutes later, Officer Beard had a conversation with Officer Dimmick over the radio regarding his observation of the suspect vehicle. Officer Dimmick told him that there was a good chance that it was the vehicle involved in the robbery. Id. at 73-74. Officer Beard began to follow the suspects. He arrested them within the city limits of Harrisburg. This testimony shows that Officer Beard was acting in response to a local officer’s request for aid. Officer Dimmick’s purpose in broadcasting the description was to alert officers in the area to be on the lookout for the suspects. Appellant also argues that an officer from Hummelstown lacks the authority to request an officer from Swatera Township to arrest someone in Harrisburg. Officer Beard testified, however, that he did not stop the vehicle within his primary jurisdiction because he was waiting for assistance for his own protection. Id. at 74. Were we to accept appellant’s argument, we would be requiring that the police officer either end his pursuit at the border of his primary jurisdiction, or arrest the suspects at a time when he had no back-up. The statute does not require this. See 42 Pa.C.S.A. § 8953(a)(3). Because the evidence shows that Officer Beard was acting in response to a local officer’s request for aid, we conclude that he properly pursued the suspects into Harrisburg and that the arrest was lawful within the meaning of § 8953(a)(3).

Even if we concluded that the arrest was illegal because it was extraterritorial, under these circumstances, the suppression of evidence “would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.” Commonwealth v. Saul, 346 Pa. Superior Ct. 155, 162, 499 A.2d 358, 361 (1985) (quoting U.S. v. Searp, 586 F.2d 1117, 1123 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979)), allocatur denied. In Saul, this Court held that the suppression of evidence obtained by a municipal police detective’s investigation beyond his primary jurisdiction would not be the proper remedy for such misconduct. Id. Similarly, the remedy would be improper when an officer makes an arrest outside of his jurisdiction in contravention of the Municipal Police Jurisdiction Act. Thus, the trial court correctly denied appellant’s motion to suppress the evidence.

Appellant next contends that the trial court erred in denying his motion for severance of the escape charge from the charges of robbery and conspiracy, thereby denying his right to a fair trial. Appellant does not dispute the trial court’s finding that in a case involving a robbery charge, evidence of the defendant’s subsequent escape is admissible. Commonwealth v. Smith, 250 Pa. Superior Ct. 460, 378 A.2d 1239 (1977). Rather, appellant argues that evidence of the robbery would not be admissible in a trial on the charge of escape. Escape is defined as follows:

A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

18 Pa.C.S.A. § 5121(a). Appellant asserts that in an escape case, the jury is not required to know the exact nature of the prior crime in order to conclude that the defendant was in “official detention.” He maintains that knowledge of the armed robbery charge severely prejudiced the jury against him.

The grant or denial of severance or the consolidation of charges for trial is a matter of discretion with the trial judge, and his decision will be reversed only for manifest abuse of discretion, or prejudice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Larkins, 302 Pa.Super. 528, 449 A.2d 42 (1982); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982).
The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper ... if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. (Citations omitted).
Commonwealth v. Galloway, id., 302 Pa.Super. at 154, 448 A.2d at 573 (quoting Commonwealth v. Terrell, 234 Pa.Super. 325, 328, 339 A.2d 112, 114 (1975). See also, Commonwealth v. Boyd, 315 Pa.Super. 308, 461 A.2d 1294 (1983); Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983).

Commonwealth v. Thomas, 328 Pa. Superior Ct. 393, 399-400, 477 A.2d 501, 504-05 (1984).

Although appellant is correct that the Commonwealth need only inform the jury of the general nature of the offense for which a defendant was being held at the time of the escape, Commonwealth v. Markle, 245 Pa. Superior Ct. 108, 369 A.2d 317 (1976), we hold that the introduction at trial of the specific offense for which appellant was being held was not unduly prejudicial. Because the second requirement for proper consolidation, that the elements of the two crimes must be easily separable in the minds of the jury, was also met here, we conclude that the lower court did not abuse its discretion in refusing to sever the charges.

For the above-stated reasons, we affirm the judgment of sentence.

Affirmed.

       We note that this was appellant’s only argument before the trial court regarding the severance issue, and that he does not renew it on appeal. Because appellant did preserve the broader issue of whether the charges were properly consolidated, and the trial court addressed the issue in its opinion, however, we will address the contention here.


author: MONTGOMERY, Judge:

text:
    515 A. 2d 974
    William MILLER & Adele L. Miller, H/W, Appellants, v. PAPARONE CONSTRUCTION COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Submitted July 14, 1986.
    Filed Oct. 6, 1986.

      Arthur Matusow, Philadelphia, for appellants.
    Lewis Katz, Philadelphia, for appellee.
    Before McEWEN, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from a judgment in favor of the Defendant-Appellee in a suit which alleged the breach of a contract for the construction of a residence by the Appellee for the Plaintiff-Appellants. The dispute centers around the fact that the Appellee used a different color of brick for the exterior of the home than that which had been chosen by the Appellants. The case was tried before the lower court, without a jury, and a verdict was rendered for the defense. Post-trial exceptions by the Appellants were considered and dismissed, and this appeal was filed after judgment was entered for the Defendant-Appellee.

The sole contention of the Appellants is that the lower court erred in allegedly considering and accepting facts and evidence not agreed to by the parties and not included in an agreed stipulation. The record shows that the parties submitted a written “Stipulation of Facts” to the lower court. This Stipulation, which contained no preamble, stated:

“1. On or about July 25,1977, plaintiffs and defendant entered into a contract in writing wherein Plaintiffs agreed to purchase and defendant agreed to sell a new dwelling. A copy of the agreement of sale is attached hereto, made a part hereof, and marked Exhibit ‘A’.
“2. Settlement was scheduled to take place on or about November 11, 1977.
“3. The agreement provided for an eighteen (18) day extension so that settlement was due no later than November 29, 1977.
“4. The agreement provided that plaintiffs would have the right to select various interior and exterior colors, including the right ,to select the colors for the siding, shingles, exterior wood and exterior brick.
“5. In accordance with the agreement plaintiffs made the various color selections, and chose dark ketchum, natural mortar, Rake, as the color of the exterior brick.
“6. On November 28, 1977 husband plaintiff was advised by defendant that everything was on schedule.
“7. On November 30, 1977 wife plaintiff was advised by defendant that defendant was going to substitute light ketchum brick for the dark ketchum brick chosen by plaintiffs.
“8. On November 30, 1977 husband plaintiff advised defendant that the substitution was improper, that the intended substitution would be in violation of the contract, and that the same was not acceptable.
“9. On November 30, 1977 plaintiffs sent a telegram to defendant instructing defendant not to use light ketchum brick, that the same was not plaintiffs’ choice, and that the same was not acceptable as authorized. A copy of said telegram is attached hereto, made a part hereof, and marked Exhibit ‘B’.
“10. Despite these instructions, defendant bricked the property with the substituted brick, and as a result thereof, the agreement was terminated.
“11. Plaintiffs contend that under the agreement of sale, defendant did not have the right to substitute a different color brick (Agreement of Sale, paragraph 6), and further that defendant violated the agreement by failing to go to settlement within the time set forth in the Agreement of Sale and subsequent extension thereto.
“12. Defendant contends that it had the right to make the substitution under the Agreement of Sale (paragraph 7) and there was no violation and therefore no right to terminate the Agreement.
“13. The parties have agreed to damages in the event the Court should find in favor of Plaintiffs.”

This Stipulation was signed by the respective attorneys for the parties. As indicated in the body of the Stipulation, the relevant sales agreement and related documents were attached as an exhibit, as was a copy of a telegram sent by the Plaintiffs to the Defendant, stating that the substitution of different color bricks was not authorized or acceptable.

When the trial judge rendered his verdict in the case, he did so by issuing a written Memorandum opinion, in which he set forth the basic conclusion that the substitution of the different color brick by the Defendant was not a material breach of the contract between the parties. In the Memorandum, the trial judge also discussed the facts of the case. In so doing, he mentioned several facts which were clearly not derived from the Stipulation of the parties. For instance, the Memorandum stated that the Plaintiffs were advised by the Defendant that the color of brick they had originally chosen was unavailable, and that the Plaintiff-husband, an attorney, had admitted in a deposition that he had reviewed the contract before signing it and found no problems with it. It is evident that the facts set forth in the lower court’s Memorandum which were not a part of the Stipulation between the parties were derived from a memorandum with exhibits submitted by the Defendant’s attorney prior to the verdict.

In their post-verdict exceptions, the Plaintiffs maintained, inter alia, that the court erred in considering facts not a part of the Stipulation between the parties. The trial judge, who sat as the court en banc, issued an Opinion rejecting these exceptions. In that Opinion, he explained that contemporaneous with the submission of the Stipulation by the parties, he had been provided with a copy of correspondence by Plaintiffs’ counsel, which indicated that matters other than those listed in the Stipulation might be presented in memorandums which each of the parties planned to file with the court. The court explained that this letter from Plaintiffs’ attorney contained the agreement of the parties regarding the Stipulation, and that it did not limit the court to consideration of the facts of the Stipulation alone as a case stated. See County of Allegheny v. Allegheny County Prison Employees’ Independent Union, 53 Pa.Cmwlth. 350, 417 A.2d 864 (1980) for an explanation of the case stated, and the procedure to be followed.

In its Opinion dismissing the Appellants’ post-verdict exceptions, the lower court also declared that it had rendered its decision based upon the terms of the sales agreement between the parties and the law of contracts. Apparently, the lower court therein was indicating it did not rely upon any of the facts outside of the Stipulation. However, in the same paragraph of its Opinion, the lower court indicates some reliance upon the alleged fact that the Defendant advised the Plaintiffs that the color of brick they chose was unavailable. This fact was not set forth in the Stipulation.

After thorough consideration, we must reject the contention of the Appellants. They have never established that the parties agreed that the Stipulation contained the only facts which the lower court could consider. The Stipulation itself does not contain any statement which indicates that no other facts could be considered by the lower court or that the parties had agreed on a case stated procedure. See Wedgewood Associates v. Caln Township, 54 Pa. Cmwlth. 557, 422 A.2d 1190 (1980). The letter from Appellants’ attorney which was sent to the Court contemporaneous with the submission of the Stipulation, referred to in the lower court’s Opinion and reproduced in the Appellants’ printed record submitted to this Court, is certainly subject to differing interpretations on this question. While it does refer to the submission of a memorandum of law by each side prior to the verdict, rather than a submission of additional factual matters, its meaning is not free of ambiguity on that point. The briefs of the parties on appeal also refer to other correspondence from both parties to the lower court, prior to the verdict, which pertained to the question of whether or not it had ever been agreed that the Stipulation had been intended to set forth all of the facts which the lower court could consider in rendering a verdict. There is nothing in the record which convinces us that there is any basis to find that the lower court abused its discretion in determining that factual matters other than those in the Stipulation might be submitted by the parties in connection with their memorandums. In essence, the lower court was faced with conflicting assertions by the parties as to the scope of their Stipulation. We cannot hold that reversible error occurred in the court’s finding that the written Stipulation was not intended by both parties to present a case stated to the court.

Finally, we deem it noteworthy to mention that the Appellants have not raised any issue on appeal regarding the lower court’s basic legal conclusion that a substitution of exterior brick colors on the house by the Defendant builder was not a material breach of contract. We do not address that interesting question, and this decision should not be read as a holding that such a substitution could not be a material breach of contract. The Appellants have merely sought a new trial upon the assertion that the trial judge erred in considering facts outside of the Stipulation in rendering his verdict. Because we find no basis for reversal on that point, we must reject the appeal.

Affirmed.

      . In the briefs submitted to this Court, the parties continue to strongly dispute whether or not there was any agreement to limit the lower court’s fact-finding inquiry to the facts set forth in the Stipulation.

      . We do not comment upon the procedural propriety of the receipt of evidence in such circumstances by the lower court. Such an issue has not been raised by the Appellants on this appeal. We do note that the additional matters considered in this case were some pages of a pretrial deposition of Plaintiff-husband, and an opinion of the Federal District Court dismissing a similar action between the parties based upon a determination that jurisdiction of the dispute did not lie in the Federal Court.


author: BROSKY, Judge:

text:
    515 A.2d 977
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles Joseph OELER, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1986.
    Filed Oct. 2, 1986.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Gary G. Gentile, Pittsburgh, for appellee.
    Before BROSKY, MONTGOMERY and HESTER, JJ.
   BROSKY, Judge:

This appeal is from the order granting appellee’s petition for writ of habeas corpus and dismissing the case against appellee.

Appellant, the Commonwealth, contends that: (1) the court below erred when it ruled that the complaint against appellee was not timely filed; and (2) even if the complaint was not timely filed, the complaint should not have been dismissed because appellee did not show any prejudice to his rights resulting from the untimely filing.

We agree with the Commonwealth’s first contention and, accordingly, reverse the order of the court below and reinstate the complaint against appellee.

On February 23, 1985, appellee was arrested for driving under the influence. Appellant was then released from custody. A complaint was filed against appellee on February 28, 1985. On April 12, 1985, a preliminary hearing was held before a district magistrate. At that time, appellee moved to dismiss the complaint on the basis that it was untimely filed under Pa.R.Crim.P. 130(d). The district justice denied the motion and held appellee for court. After the Commonwealth charged appellee by information with the offense of driving under the influence, he filed, on May 2, 1985, a motion for a writ of habeas corpus. A hearing was held on May 8, 1985, at which time the court below granted appellee’s motion on the basis that the complaint had been untimely filed under Pa.R.Crim.P. 130(d). This appeal timely followed.

The Commonwealth first argues that the court below erred when held that the complaint had been untimely filed. Pa.R.Crim.P. 130 provides in relevant part that:

Rule 130. Procedure in Court Cases Initiated by Arrest Without Warrant
(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Since, in the instant case, the arresting officer followed the procedure of Rule 130(b) on February 23, 1985, Rule 130(d) required that a complaint be filed within five days of that date. The lower court in holding that the complaint was untimely filed stated the following:

For the purpose of Rule 130 the Commonwealth had five full days to issue the complaint and summons. Those days were February 23, 24, 25, 26 and 27.
The complaint and summons were not issued until February 28, the sixth day. For this reason this Court had no choice but to grant the relief requested by Defendant. The Commonwealth, however, contends that Rule 130(d)

should be construed according to 1 Pa.C.S. § 1908, and that if it is so construed, the filing of the complaint on February 28 did not violate Rule 130(d). We agree with the Commonwealth on both points.

1 Pa.C.S. § 1908 provides the following:

Computation of time
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

(emphasis added).

The Rules of Criminal Procedure are to be construed “as nearly as may be in consonance with the rules of statutory construction,” Pa.R.Crim.P. 2. Moreover, both this Court and our state Supreme Court have construed time periods for a speedy trial under Pa.R.Crim.P. 1100 in accordance with § 1908. See Commonwealth v. Wade, 457 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982). Thus, we have no hesitation whatsoever in agreeing with the Commonwealth that the time period of Rule 130(d) should be construed according to § 1908.

In the instant case, such a construction requires that the five day time period of Rule 130(d) be computed so as to exclude the day of appellee’s release, February 23, 1985. Thus, a timely filing could have been made on any one of the five succeeding days, February 24 through February 28. Since the complaint was filed on February 28, we agree with the Commonwealth that it was filed within the five day period specified by Rule 130(d).

We must, therefore, conclude that the court below erred in granting appellee’s petition for writ of habeas corpus and dismissing the case against him. Accordingly, we reverse the order of the court below and reinstate the complaint against appellee. Jurisdiction relinquished.

      . The Commonwealth may appeal from an order discharging a defendant upon a writ of habeas corpus. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980).

      . We note that in another Commonwealth appeal involving Rule 130(d), Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985), this Court made a statement which appears to be inconsistent with computing the time period of the rule in accordance with § 1908. The Court stated the following in its recitation of the facts:

        Appellee-Revtai was arrested on May 25, 1983 and charged with driving under the influence. 75 Pa.C.S.Sec. 3731. Appellee was not immediately taken before the issuing authority, but was released without arraignment pursuant to Pa.R.Crim.P., Rule 130(b), 42 Pa.C.S. A complaint was filed on May 31, 1983 six days after the arrest.

      (emphasis added).
      However, May 30, 1983, the last day of the time period as calculated pursuant to § 1908, was Memorial Day, a legal holiday. Under § 1908, it therefore should have been omitted from the computation. Thus, if the time period of Rule 130(d) is calculated in accordance with § 1908, May 31, 1983 was the fifth rather than the sixth day after the arrest.
      The Commonwealth, however, did not raise in Revtai the issue of the proper method of computing the time period. Rather, it contended only that the case should not have been dismissed because the defendant had failed to demonstrate any prejudice to his rights from the untimely filing. Thus, even if the Revtai court had been aware that the complaint had been timely filed under Rule 130(d) as construed in accordance with § 1908 (it may not have been so aware since the issue was not raised), it could not have reversed the lower court’s order on that basis. See Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976) (courts may not raise issues sua sponte). The Revtai court’s passing remark that May 31, 1983 was the sixth day after the arrest was, therefore, at most dicta and was not impliedly a binding holding that the time period of Rule 130(d) should not be construed in accordance with § 1908.

      . Given our resolution of this issue, we need not address the second issue raised by the Commonwealth. We note that that issue was decided contrary to the Commonwealth in Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985) and Commonwealth v. Press, 493 Pa.Super. 507, 493 A.2d 705 (1985). However, our Supreme Court granted petitions for allowance of appeal in both of those cases and the issue is now pending before that Court. The issue is also before an en banc panel of this Court in Commonwealth v. Schimelfenig, No. 2392 Philadelphia, 1985 (argued 6/30/86).


author: ROWLEY, Judge:

text:
    515 A.2d 980
    WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION v. Marc D. STEIN and Sandra S. Stein, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed Sept. 29, 1986.

      Edwin W. Robey, Washington, for appellants.
    David S. Posner, Washington, for appellee.

      Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a summary judgment entered in favor of Washington Federal Savings and Loan Association (Association), appellee, against Marc D. and Sandra S. Stein, appellants, in a mortgage foreclosure action. The Steins argue that 1) there are disputed issues of material fact to be decided and therefore summary judgment should not have been granted, and 2) their counterclaim was appropriate in a mortgage foreclosure action and raises issues of fact that preclude the entry of summary judgment. Having reviewed the record and considered the arguments advanced on behalf of the parties, we affirm the summary judgment of mortgage foreclosure.

“A motion for summary judgment may properly be granted only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 123, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 480-482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1971).” Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109-110 (1983). However, parties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. Pfaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979). The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted. Pfaff v. Gerner, supra.

Considered in light of the foregoing principles, the record discloses the following facts. On May 29, 1980, the Steins executed and delivered to the Association a thirty-year mortgage in the amount of $55,000. The real estate covered by the mortgage was a tract of land situate in Nottingham Township, Washington County. The mortgage was payable in monthly installments and granted the Association the right to accelerate the entire balance due during any default by the Steins. The mortgage and its accompanying note also provided for the payment, in the event of an action to collect the balance due, of a “reasonable” attorney’s fee. The Steins failed to make the payments required by the mortgage and note, however. On December 21, 1982, the principal balance due the Association was in excess of $55,000. As a result, the Association filed its first mortgage foreclosure action against the Steins on December 27, 1982.

Apparently as a result of negotiations between the parties, the Association, on July 7, 1983, extended to the Steins a written “offer” to reinstate the mortgage. The offer contained provisions for the payment of all delinquent interest, then in excess of $12,000, the forgiveness of late charges, and the payment of attorney’s fees and costs incurred by the Association in the foreclosure proceeding. The offer also contained a provision for the release from the lien of the mortgage of lots subsequently sold by the Steins. The offer provided that the Association should be paid “the greater of $5,000 or an amount sufficient to keep the loan balance at 80% of a new appraisal (to be done by the [Steins] at [their] cost).” Finally, the offer specifically provided that it would not extend beyond September 2, 1983, at which time a sheriff sale was scheduled.

The record then shows that from July 7, 1983 until May 29, 1984 a total of 14 “payment credits” were posted to the Stein’s account. These payments include one for the delinquent interest referred to in the Association’s “offer.” However, the last payment on account of the mortgage was received by the Association on May 29, 1984. No payments were received after that date. On March 19, 1985, the Association instituted the instant action in mortgage foreclosure. All required notices of intent to foreclose were given by the Association in August of 1984.

In its complaint the Association averred that the amount due was in excess of $53,000 which included late charges, interest, and an attorney’s commission of 5% in the amount of $2,558.42. The Association’s demand was for the amount due plus interest and costs “and foreclosure of the property.” The Steins filed an answer containing new matter and a counterclaim. The Association filed a reply to the new matter and counterclaim. The Association filed a reply to the new matter and counterclaim. After the pleadings were closed the Association filed its motion for summary judgment. Submitted with the motion was an affidavit of the Association’s treasurer who stated that he was responsible for the Loan Servicing Department and was familiar with the matters set forth in his affidavit. Included in the affidavit were a loan payout statement as of June 4, 1985, a loan payment history of the Stein’s mortgage account, and a copy of the July 7, 1983 “offer.” The Steins filed no counter-affidavits, depositions, answers to interrogatories or admissions. The trial court on July 26, 1985, granted the Association’s motion and directed that “summary judgment is entered in favor of Washington Federal Savings and Loan Association against the defendants, Marc D. Stein and Sandra S. Stein, his wife.’’ The judgment as entered by the trial court did not determine the amount due.

The trial court in entering summary judgment for the Association found that the Steins were ten months in arrears at the time the action was instituted and concluded “that the [Steins] have asserted no cognizable defenses on their behalf which would excuse their obligation under the mortgage.” On appeal the Steins argue that their answer to the Association’s complaint, as well as the 31 additional paragraphs contained in their new matter and counterclaim, “are replete with disputed material facts” which prevent the entry of summary judgment. However, the only “disputed fact” specifically addressed by the Steins in their argument is the amount claimed by the Association for attorney’s fees. In their answer to the complaint, they allege that the Association’s claim of 5% for attorney’s fees in this proceeding is unreasonable. This averment, they argue, creates a genuine issue as to a material fact which bars the Association’s right to summary judgment.

The Stein’s reliance upon the pleadings is misplaced. Pa.R.C.P. 1035(d) specifically provides that they may not rest upon the averments contained in the pleadings. In order to properly raise a genuine issue of fact, the Steins had the burden to present “facts” by counter-affidavits, depositions, admissions, or answers to interrogatories. In Pfaff v. Gerner, supra, the Supreme Court considered a similar situation. In that case the buyer filed an action for specific performance of a contract to sell real estate. The pleadings raised genuine issues of fact. After the pleadings were closed, the sellers (defendant) moved for summary judgment and filed with their motion the affidavit of a title officer who was present at the time of settlement. The Court noted that the buyer did not present any affidavits or other evidence in response to the title officer’s affidavit. The trial court, relying on the title officer’s affidavit, entered summary judgment in favor of the sellers. On appeal, the Supreme Court held that the entry of summary judgment was proper. The Court pointed out that the buyer in that case was prohibited from relying on the allegations contained in his complaint. It noted that “[p]leadings are not” acceptable as proof of facts and the requirements of Rule 1035(d) are strict. In resolving the appeal, the Court “examined all uncontroverted facts contained in the pleadings and the title officer’s affidavit.” [Emphasis added.] Likewise, in Younginger v. Heckler, supra, this Court said “an adverse party may not rest on the mere allegations or denials of his pleadings, but must respond by evidence which sets forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if otherwise appropriate, may be entered against him.” 269 Pa.Super. at 450-451, 410 A.2d at 342. Here, as in Younginger, the Steins did not offer any evidence to contradict the affidavit filed by the Association’s treasurer. That uncontradicted evidence and the uncontradicted averments in the pleadings fully support the trial court’s conclusion that the Steins are in default and that there are no genuine issues of material fact on the question of the Association’s right to a judgment of mortgage foreclosure.

The Steins also argue that their counterclaim creates genuine issues of fact for determination at trial. In their counterclaim they seek money damages on three grounds. First, they aver that while they were in default prior to the institution of the first mortgage foreclosure action the Association had agreed to refrain from instituting that action while a law suit filed by the Steins against the sellers of the property covered by the mortgage was pending. They allege that the institution of the first foreclosure action constituted a breach of that agreement and resulted in them incurring and paying unnecessary costs and fees to the Association. Secondly, the Steins claim that the Association had agreed by its offer of July 7,1983, to release for a total payment of $5,000, the two lots subsequently sold by them; however, the Association required the payment of $5,000 for the release of each lot. This, they claim, constituted a breach of their reinstatement agreement with the Association and resulted in damage and injury to them. Finally, they allege that on two occasions subsequent to June 1984, they had offered to pay “substantially” the amount of the delinquent payments then due. They aver that the Association’s refusal to accept those payments resulted in the institution of the present foreclosure action which again results in the unnecessary expense to them of fees and costs.

The trial court in discussing the Stein’s counterclaim referred specifically only to the alleged breach of the reinstatement agreement. The court held that “this claim is not sufficiently connected to the mortgage note as to permit [the] Court to resolve this issue in the present proceedings____” On appeal, the Steins urge that the reinstatement agreement was part of or incident to a “recreation” of the mortgage in the summer of 1983. Again, however, the Stein’s argument is based solely on disputed, factual averments contained in the pleadings. Their argument concerning their counterclaim has no more support in the Associations’ affidavit ana the uncontroverted facts contained in the pleadings than does their argument regarding attorney’s fees.

In conclusion, considering the uncontested affidavit filed by the Association’s treasurer and the uncontradicted averments contained in the pleadings, the Stein’s default is clear and the Association is entitled as a matter of law to foreclose on the subject property. There are no genuine issues of material fact raised in the affidavit or the uncontroverted pleadings. Therefore, the summary judgment of mortgage foreclosure in favor of the Association and against the Steins is affirmed. .

      . The Association argues that many of the arguments now advanced by the Steins are barred by the doctrine of res judicata as a result of a summary judgment of mortgage foreclosure entered in its favor in 1983 in the first mortgage foreclosure action. However, the record of that action is not included in the record certified to us in this appeal. The Association has attached to its brief an appendix that purports to be the record of the first foreclosure action, but since it is not properly before us we have not considered it in reaching our decision in this case.