author: CIRILLO, Judge.

text:
    653 A.2d 688
    FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Diane J. STRAUSSER. FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Norman PERLBERGER. FIRST WISCONSIN TRUST COMPANY v. Diane J. STRAUSSER and Norman Perlberger v. MIDLANTIC HOME MORTGAGE CORP. Appeal of Norman PERLBERGER.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1994.
    Filed Jan. 27, 1995.

      James C. Schwartzman, Philadelphia, for Diane J. Strausser.

      Norman Perlberger, pro se.
    Mark J. Udren & Francis S. Hallinan, Philadelphia, for First Wisconsin Trust Co.
    Before WIEAND, CIRILLO and TAMILIA, JJ.
   CIRILLO, Judge.

Presently before this court are three separate appeals, all of which concern the same facts, parties and issues. Consequently, for reasons of judicial economy, we will consolidate these actions for purposes of this decision pursuant to Pa. R.A.P. 513.

On November 30, 1987, Appellants, Norman Perlberger (Perlberger) and Diane J. Strausser (Strausser), executed and delivered a promissory note to Appellee’s predecessor-in-interest, Midlantic Home Mortgage Corporation (Midlantic), in the principal sum of of $310,000.00. This amount was to be paid in equal, consecutive monthly installments of principal and interest over a thirty (30) year term commencing January 1, 1988. The rights under the note were eventually assigned to Plaintiff-Appellee, First Wisconsin Trust Company.

On the same date, Defendant-Appellants executed a mortgage on the premises at 309 Milford Road, Lionville, Pennsylvania (“mortgaged premises”) as security for the note. The mortgage was also assigned to Plaintiff-Appellee. Less than four years after executing the note and mortgage, Appellants defaulted in the payment of the monthly installments, as payments due May 1,1991, and each month thereafter, remain unpaid.

Subsequently, Plaintiff-Appellee notified Appellants of then-default and its intention to foreclose on the mortgage. Since the Appellants failed to cure the default and reinstate their mortgage, or pay off the outstanding balance of the loan, Appellee instituted a mortgage foreclosure action against Appellants on March 16, 1992. Appellee also instituted a separate action on the promissory note against Appellants on March 24, 1992 in order to obtain an in personam judgment against Appellant mortgagors so as to cover a possible mortgage foreclosure deficiency.

Strausser appeals from the order entered in the Court of Common Pleas of Chester County (No. 92-02583) granting summary judgment for Plaintiff-Appellee, First Wisconsin Trust Company (First Wisconsin), in the mortgage foreclosure action instituted by First Wisconsin (No. 03870 PHL 93). Strausser raises one issue for our review:

Whether the trial court erred in granting Summary Judgment for Appellee, finding that Appellant [Strausser] had no legal defenses, where Appellant had submitted her verified Complaint against co-defendant [Perlberger] in Appellant’s Answer and New Matter which set forth defenses that struck to the validity of the Mortgage?

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

In First Wisconsin’s mortgage foreclosure action against Strausser, the trial court held that there was no genuine issue as to any material fact and that First Wisconsin was entitled to judgment as a matter of law. In reaching this conclusion, the trial court found that Strausser’s responsive pleading was deficient under Pa.R.C.P. 1029. Rule 1029 provides in part:

(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.
(c) A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.
Note
Reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false. See Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978).

The trial court found that Strausser’s answers to the allegations in First Wisconsin’s Complaint amounted to nothing more than general denials and demands for proof under Pa.R.C.P. 1029(c). As such, the purported denials are deemed admissions pursuant to the provisions of 1029(b) and Cercone, supra. After a review of the record, we agree.

For example, First Wisconsin alleged in paragraph six of its complaint that the total amount due on the mortgage was $349,829.96. Strausser simply denied this as a conclusion of law. This court has held, however, that, in. mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts. New York Guardian Mortgage Corp. v. Dietzel, 362 Pa.Super. 426, 429, 524 A.2d 951, 952 (1987). Our rationale in Dietzel is applicable to the present case. In Dietzel we stated, “[unquestionably, apart from appellee, appellants are the only parties who would have sufficient knowledge on which to base a specific denial.” Id. at 429, 524 A.2d at 952. Further support for this approach is found in the note to subsection (c) of Rule 1029 which provides that “reliance upon subsection (c) does not excuse a failure to deny or admit factual allegations when it is clear that the pleader must know if the allegations are true or not.” City of Philadelphia v. Hertler, 114 Pa.Commw. 475, 482, 539 A.2d 468, 472 (1988) (emphasis added). We agree with the trial court that this particular denial by Strausser, as well as her remaining general denials to First Wisconsin’s complaint, essentially constituted admissions.

In addition, Strausser, in her New Matter to First Wisconsin’s Complaint, refers to her Complaint against Perlberger and admits that she signed an agreement to purchase the mortgaged premises and that on November 30, 1987, she “closed on the Lionville house.” Strausser Complaint, ¶¶ 28-29. This directly contradicts her denial of these facts which were asserted by First Wisconsin in paragraphs three and four of First Wisconsin’s Complaint.

In Strausser’s New Matter, she claimed that her civil action against Perlberger provided an affirmative defense to First Wisconsin’s mortgage foreclosure action. Specifically, Strausser alleges that, at the time she executed the note and mortgage, Perlberger had taken advantage of her while the two were involved in a romantic relationship and who, through manipulation, fraud and deceit, pressured her into purchasing the mortgaged premises.

The trial court dismissed Strausser’s affirmative defense because it concluded that counterclaims and affirmative defenses in a mortgage foreclosure action can only be brought if they are a part of, or incident to, the creation of the mortgage. The trial court cited Chrysler First Bus. Credit Corp. v. Gourniak, 411 Pa.Super. 259, 601 A.2d 338 (1992). The trial court’s conclusion was only partially correct.

While it is true that Pa.R.C.P. 1148 and Goumiak provide that a defendant in a mortgage foreclosure action can only plead a counterclaim which arises from the same transaction or occurrence from which the plaintiffs action arose, we specifically stated in Goumiak that Rule 1148 only governs counterclaims in mortgage foreclosure actions and does not govern the pleading of a new matter. Gourniak, 411 Pa.Super. at 267, 601 A.2d at 342. Nevertheless, we find that Strausser’s affirmative defense raised in her New Matter is without merit as it pertains to this case.

Strausser claims that the defenses of duress, fraud and unjust enrichment, resulting from Perlberger’s alleged influence over her, “strike at the' validity of the Mortgage.” The cases relied on by Strausser to support this position, however, are inapposite.

Appellant Strausser refers this court to Fleet Real Estate Funding v. Smith, 366 Pa.Super. 116, 530 A.2d 919 (1987) and First Federal Sav. & Loan Ass’n. of Pittston v. Reggie, 376 Pa.Super. 346, 546 A.2d 62 (1988). In Fleet, this court reversed the granting of summary judgment in favor of a mortgagee and found that a genuine issue of material fact, concerning the mortgagee’s alleged failure to adequately service the mortgage in compliance with the Federal Housing Administration, precluded summary judgment. Fleet, supra, 366 Pa.Super. 116, 530 A.2d 919. In Reggie, this court vacated an entry of summary judgment in favor of the mortgagee where there existed a material fact as to whether the mortgagee made material misrepresentations in order to induce the debtors to refinance. Reggie, supra. In Fleet and Reggie, as in other cases precluding summary judgment in favor of the mortgagee, summary judgment was not permitted because a genuine issue of material fact existed as to the improper conduct of the mortgagee. Fleet, supra; Reggie, supra; see also Comm. School Employee’s Retirement Fund v. Terrell, 399 Pa.Super. 328, 582 A.2d 367 (1990) (holding that a genuine issue of material fact, as to whether mortgagee complied with forebearance provisions of the Department of Housing and Urban Development handbook, precluded summary judgment); Union Nat’l Bank of Little Rock v. Cobbs, 389 Pa.Super. 509, 567 A.2d 719 (1989) (holding that genuine issues of material fact as to whether lender complied with mortgage servicing provisions of Veterans Administration Lenders Handbook precluded summary judgment).

In this case, Strausser’s allegations of wrongdoing are directed at Perlberger and not at First Wisconsin. Strausser’s affirmative defense, therefore, is without merit.

Finally, the trial court properly determined that Strausser’s contention set forth in her New Matter that the court lacks jurisdiction over her has been waived. Bergere v. Bergere, 364 Pa.Super. 100, 527 A.2d 171 (1987) (holding that preliminary objection is the exclusive means by which to raise the question of in personam jurisdiction and the failure to do so constitutes waiver). Thus, the trial court did not err in granting summary judgment against Strausser. Hetrick, supra.

Next, Perlberger appeals from the order entered in the Court of Common Pleas of Chester County (No. 92-02583) granting summary judgment for First Wisconsin in the second mortgage foreclosure action which was instituted by First Wisconsin (No. 01475 PHL 94). Perlberger raises five issues for our review:

(1) Did the trial court commit error of law by deeming as admissions certain denials to complaint averments?
(2) Did the trial court commit error of law by determining as a matter of law that there existed no genuine issue of material fact?
(3) Did the trial court commit error of law by granting summary judgment prematurely, prior to the taking of discovery?
(4) Did the trial court commit error of law by failing to consider plaintiff-appellee’s duty to mitigate damages and failure to do so?
(5) Did the trial court commit error of law by failing to construe the record in the light most favorable to the non-moving party?

Perlberger contends that the trial court erred when it found that his responsive pleading to First Wisconsin’s Complaint was deficient under Pa.R.C.P. 1029. After a review of the record, we agree with the trial court that Perlberger’s responses amounted to nothing more than general denials which are considered admissions under Pa.R.C.P. 1029(b), the note to Rule 1029(c), and Cercone, supra.

In addition, Perlberger, in his answer to Appellee’s Complaint, admitted that he was delinquent in the mortgage payments. Paragraph six of the Complaint alleges that the total amount due on the mortgage is $349,829.96. Perlberger’s response provides:

6. Admitted in part, denied in part. While the Note requires said payment, answering Defendant has been unable to perform his obligations because of the actions of the Defendant, Strausser, and the bad faith actions taken by additional Defendant, Midlantic Home Mortgage Corporation.

Summary judgment is properly granted in mortgage foreclosure actions where the mortgagor admits that he is delinquent in mortgage payments. Dietzel, 362 Pa.Super. at 429, 524 A.2d at 952. Perlberger’s response clearly reveals that he is delinquent in mortgage payments and that the total amount due on the mortgage is $349,829.96. Therefore, the trial court did not err in granting summary judgment against Perlberger. Hetrick, supra; Dietzel, supra.

Perlberger’s attempts to prevent the entry of summary judgment by passing this responsibility to Strausser and Midlantic are futile. First, Perlberger alleges conduct on the part of Strausser which, he believes, should render her solely liable to First Wisconsin. Perlberger’s argument is without merit. A mortgagor’s claim that another party is primarily liable, and that the mortgagee should collect from that other party before attempting to collect from this mortgagor, is a conclusion of law which will not raise a genuine issue of material fact in order to preclude summary judgment in a mortgage foreclosure action. First Mortgage Co. of Pennsylvania v. McCall, 313 Pa.Super. 54, 58, 459 A.2d 406, 408 (1983).

Second, as to Perlberger’s counterclaims against First Wisconsin’s predecessor-in-interest, Midlantic, the trial court properly determined that counterclaims in mortgage foreclosure actions can only be brought if they are a part of, or incident to, the creation of the mortgage itself. Gourniak, supra, 411 Pa.Super. 259, 601 A.2d 338. In Gourniak, we held that Pa.R.C.P. 1148 would only permit a counterclaim which arises from the same transaction or occurrence from which the plaintiffs action arose. We stated, “[t]his counterclaim is ... not part of or incident to the creation of the mortgage because the alleged facts giving rise to this counterclaim occurred after the parties were in default of the mortgage.” Gourniak, 411 Pa.Super. at 266, 601 A.2d at 342. In this case, as in Gourniak, Perlberger’s counterclaims against First Wisconsin’s predecessor Midlantic are not part of or incident to the creation of the mortgage because the alleged facts which give rise to his counterclaims occurred after the creation of the mortgage and after Perlberger and Strausser were in default of the mortgage.

Perlberger next claims that it was error for the trial court to grant summary judgment where no discovery had yet been conducted. We disagree. This court is unsympathetic to Perlberger’s concerns as the record shows that almost two years had passed between the filing of his answer to First Wisconsin’s complaint and First Wisconsin’s filing of its motion for summary judgment, without any effort on the part of Perlberger to conduct discovery. If Perlberger, who is an attorney, felt that discovery was so vital to his case, then he could have taken many different steps to effectuate that goal.

Perlberger next claims that it was error for the trial court not to consider First Wisconsin’s duty to mitigate damages. Since this claim arose after the creation of the mortgage and after Appellants were in default of the mortgage, it does not preclude the entry of summary judgment. Pa.R.C.P. 1148; Gourniak, supra.

After reviewing the record, we find that Perlberger’s last contention, that the trial court erred by not construing the record in the light most favorable to the non-moving party, is meritless. Accordingly, the trial court did not err in granting summary judgment in favor of First Wisconsin and against Perlberger. Hetrick, supra.

Next, we address Perlberger’s appeal from the order entered in the Court of Common Pleas of Chester County (No. 92-02910) granting summary judgment in favor of First Wisconsin in the promissory note action (No. 03907 PHL 93). On appeal, Perlberger raises the same issues as those raised in the previous case regarding First Wisconsin’s summary judgment in the mortgage foreclosure action. Similarly, Perlberger’s arguments and citations presented in his brief on these issues are almost identical to those presented in his previous case on appeal. Moreover, Perlberger makes no- effort to distinguish this promissory note action from the previous mortgage foreclosure action. Accordingly, we find, for the reasons previously presented by this court, that the trial court did not err in granting summary judgment in favor of First Wisconsin.

Orders affirmed.

      . Pa.R.A.P. 513 provides, in part: “[W]here the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal.”

      . In addition, the Restatement (Second) of Contracts § 177 cmt. c illustrates that Strausser’s claims are, as a matter of law, inapplicable to the present case. Comment c provides:
      c. Undue influence by a third person. If a party’s assent [i.e. Strausser’s] has been induced by the undue influence of a third person [i.e. Perlberger] rather than that of the other party to the contract [First Wisconsin], the contract is nevertheless voidable by the victim, unless the other party [i.e. First Wisconsin] has in good faith either given value or changed his position materially in reliance on the transaction. The rule is similar to that for misrepresentation (see Comment c to § 164) and duress (see Comment b to § 175).
      Restatement (Second) of Contracts § 177 cmt. c (1981).
      Strausser’s claims are inapplicable to this case because even if Perlberger induced Strausser’s assent it is clear that Midlantic, First Wisconsin’s predecessor, either gave value or materially changed its position in reliance on the transaction as it extended a loan to Appellants.
      Also, concerning Strausser’s unjust enrichment claim, the existence of the written note and/or mortgage agreement precludes a claim of unjust enrichment. See Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980) (holding that a written or express contract between parties precludes a claim of unjust enrichment).

      . Whether Strausser’s claims of duress, fraud and unjust enrichment against Perlberger have merit is not presently before this court.

      . In support of her argument that the trial court erred in granting summary judgment in favor of First Wisconsin, Strausser places great weight on the fact that the trial court denied First Wisconsin’s motion for summary judgment in its promissory note action against Strausser (No. 92-02910). Her argument is as follows:
      The trial court corrected its error in this case[, the mortgage foreclosure action,] within the context of the Note Action where [it] ... denied Appellee’s Motion for Summary Judgment.... Since the Court ... denied Appell[ee]’s Motion for Summary Judgment in the Note Action on April 25, 1994 and had granted Summary Judgment in Mortgage Foreclosure on November 15, 1993, it is only logical to presume that the Court was attempting to correct a previous error.
      Strausser’s brief at 8-9.
      Strausser’s argument is without merit. First, the Honorable Thomas E. Gavin entered summary judgment against Strausser in the mortgage foreclosure action and the Honorable Lawrence E. Wood denied summary judgment in favor of Strausser in the promissory note action. Therefore, these orders concerning summary judgment were entered by two different judges, thus negating the argument that one particular judge decided to correct his prior erroneous decision. This court does not accept Strausser’s contention that a judge in one action would attempt to correct what he believed to be an incorrect result entered by another judge in an entirely different action.
      In addition, an action on a promissory note and an action in foreclosure are two different actions, which would reasonably explain the alleged inconsistencies. In a promissory note action, an in personam judgment is sought. In a mortgage foreclosure action, however, the action is strictly an in rem proceeding. Pa.R.C.P. 1141 provides:
      (a) As used in this chápter[ regarding mortgage foreclosure,] 'action' means an action at law to foreclose a mortgage upon an estate, leasehold or interest in land but shall not include an action to enforce a personal liability.
      (emphasis added). See also Dietzel, 362 Pa.Super. at 431, 524 A.2d at 953 (holding that ''[a]n action in mortgage foreclosure is strictly an in rem proceeding, and the purpose of a judgment in mortgage foreclosure is solely to effect a judicial sale of the mortgaged property”). This too could explain the alleged inconsistency.

      . Perlberger instituted a civil action against Midlantic on May 7, 1992, claiming breach of warranty and contract, tortious interference with contract, intentional infliction of emotional distress, and bad faith for, inter alia, interfering with Perlberger’s ability to gain title to the deed of the mortgaged premises and to resolve this mortgage foreclosure situation.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    653 A.2d 696
    COMMONWEALTH of Pennsylvania, Appellant, v. Jason Michael PROCTOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed Jan. 19, 1995.
    Merritt E. McKnight, Dist. Atty., Lock Haven, for the Com., appellant.
    Stephen C. Smith, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge:

This case involves a challenge to the order of the Court of Common Pleas of Clinton County by the Commonwealth regarding the grant of the appellee/Jason Michael Proctor’s motion to suppress.

In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963), the Commonwealth was granted the right to appeal the grant of a suppression motion. In doing so, the Commonwealth was told simply that it was to plead that its case against the defendant would be substantially handicapped or terminated if the suppression order were to stand. These sentiments were echoed by the same Court in Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), with the caution that the Commonwealth’s “certification” that its case would be terminated or substantially handicapped without reversal of the suppression order was “uncontestable.” In fact, the “certification” was held to, “in and of itself, precipate[] and authorize[] the appeal. * * * Such certification [wa]s required as a means of preventing frivolous appeals and intended solely for delay.” Id. at 543—46, 486 A.2d at 385, 386.

The Dugger Court’s directive has been interpreted by this Court to require that the order appealed be quashed where no certification of termination or substantial impairment of prosecution is alleged; to-wit:

... the Dugger Court pointed out that the Commonwealth’s good faith certification that a suppression order terminates or substantially handicaps its prosecution is a condition precedent which “precipitates and authorizes the appeal.” In other words, as we interpret Dugger, because certification is the predicate for an appeal, i.e., authorizes it, the absence of such a certification by the Commonwealth “as to the impact of the suppression order upon its case” subjects the appeal to being quashed. See Dissenting Opinion by Justice Hutchinson in Commonwealth v. Duncan, 514 Pa. 395, 410, 525 A.2d 1177, 1184 (1987); cf. Commonwealth v. Conway, 368 Pa.Super. 488, 490-91, 534 A.2d 541, 542 (1987) (“... our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution.” (Citation omitted; emphasis added)); Commonwealth v. Hoffman, 367 Pa.Super. 79, 532 A.2d 463 (1987) (Statement that the suppression order substantially handicapped the prosecution properly invoked the jurisdiction of the Superior Court to entertain the appeal from an otherwise interlocutory order).
As an intermediate appellate court acting under the auspices of the Pennsylvania Supreme Court, in regard to maintaining and effectuating the decisional law of this jurisdiction, we find that the Commonwealth’s failure to satisfy the “prerequisite” for invocation of appellate jurisdiction to review a suppression order enunciated in Bosurgi and clarified by Dugger requires that we quash the Commonwealth’s appeal. Stated otherwise, the Commonwealth has failed to comply with the dictates of Dugger by not “certifying” (either at the hearing granting the motion to suppress or in its brief filed with this Court) that “the suppression order terminate[d] or substantially handicap[ped] its prosecution.” Accordingly, we have no “jurisdiction” to hear the Commonwealth’s appeal and must quash to implement the Supreme Court’s objective in requiring such a certification, i.e., a means to prevent frivolous appeals or appeals intended for delay. Dugger, supra; Commonwealth v. Hunsberger, 358 Pa.Super. 207, 309-11, 516 A.2d 1257, 1258 (1986).

Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553, 554-555 (1988) (Emphasis in original; footnote omitted); cf. Commonwealth v. DeMarco, 396 Pa.Super. 357, 578 A.2d 942, 945 (1990) (Dugger’s certification of termination or substantial handicap of the case may be filed at “anytime” prior to the quashal of the Commonwealth’s appeal).

At bar, we are dealing with a criminal case which transcends the interests of the immediate parties, i.e., the case impacts upon the citizenry of this Commonwealth. As such, “we do not believe the interests of public justice would be best served by penalizing the citizens of this Commonwealth for the district attorney’s failure to comply with an essentially pro forma requirement of Dugger’s certification]. This omission may be properly corrected on appeal.” Commonwealth v. Frankenfield, 410 Pa.Super. 377, 599 A.2d 1346, 1348 (1991).

Toward that end, we direct that the Commonwealth file with this Court, within fifteen (15) days of the filing date of this Opinion, a certification explaining that the suppression order substantially handicaps or will, in fact, terminate the prosecution. Non-compliance with this Court’s order shall result in the present appeal being quashed by this Court. Id. Panel jurisdiction is retained.


author: HESTER, Judge: BECK, Judge,

text:
    653 A.2d 697
    Beth GADON, Appellant, v. The CHASE MANHATTAN BANK, (USA). Lawrence and Deborah GILBERT and David A. Thompkins, Appellants, v. GREENWOOD TRUST COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1993.
    Decided Jan. 5, 1995.

      Michael D. Donovan, Haverford, for appellants.
    Jeffrey S. Saltz, Philadelphia, for appellees.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

In this consolidated appeal Beth Gadon, Lawrence and Deborah Gilbert, and David A. Thompkins, who are plaintiffs in separate actions, appeal from the March 11, 1993 orders entered in both cases. In those orders, the trial court dismissed their complaints. Appellants instituted their separate actions against The Chase Manhattan Bank, (USA), and Greenwood Trust Company, both state-chartered banks in Delaware (appellees). In their respective actions, appellants claimed that appellees illegally overcharged them with late charges and contingent fees on their unpaid credit card balances in violation of Pennsylvania usury laws. Appellees filed preliminary objections, asserting that the complaints failed to set forth claims upon which relief could be granted since the relevant state law was preempted by federal law. The trial court agreed and dismissed the complaints. We reverse.

The allegations in the complaint are as follows. Appellants are holders of Discover and Visa credit cards issued by appellees. After accepting and using the credit cards in Pennsylvania, appellants were late in paying the monthly minimum installments on the accounts. As a result, their succeeding monthly billing charges reflected the imposition of “late charges.” These late charges were added to the unpaid balance reflected on appellants’ monthly billing statements and interest then was charged on the resulting balance.

Appellees are state-chartered banks in Delaware. Appellees issue their credit cards pursuant to cardmember agreements to customers nationwide, including residents of Pennsylvania. Appellees impose separate late payment charges if the minimum payment due is not paid within twenty days after the payment due date in any month. According to the cardmember agreements, failure to pay the minimum payment by the monthly due date puts the customer in default and triggers the late payment contingent charge. Appellees, however, do not include the late charges in the disclosure of annual percentage rate in their cardmember agreements, monthly billing statements, application forms or national advertising. In fact, appellees separately identify the late payment charge in the cardmember agreements and separately identify finance charges and late charges. The payment of a late charge is not a condition for the extension of further credit by appellees, and does not, in itself, affect appellees’ decision to further extend credit to individual cardholders.

Appellants alleged that the penalty fees imposed constitute interest charges exceeding the limits delineated by Pennsylvania statutory and common.law (set forth, inter alia, in the Pennsylvania Goods and Services Installment Sales Act, 69 P.S. § 1101 et seq., the Pennsylvania Banking Code of 1965, 7 P.S. § 101 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.). They further claim that such contingent and penalty charges are not included within “interest” as that term is defined in section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U.S.C. § 1831d (“DIDA”) or under federal common law. Hence, appellants claim there is authority for finding that late penalties and contingent fees are included in calculating the overall interest charged to a loan under limits set by state law but are not preempted by DIDA, or the Truth in Lending Act, 15 U.S.C. § 1601, et seq.

Appellees contend we should apply a federal circuit court opinion, followed by every other state court which has addressed this issue, wherein the court found that federal law regulating the maximum interest that can be charged by banks permitted them to charge the highest rate they are allowed to charge by the law in the state in which they are located. This holding was premised on the court’s finding that Congress intended for federal banking law to preempt state usury laws. See Greenwood Trust Co. v. Massachusetts, 971 F.2d 818 (1st Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993).

We disagree. We conclude that we are bound by our recent en banc decision in which we addressed essentially the same issues which are raised in the instant case. See Mazaika v. Bank One, Columbus, N.A., 439 Pa.Super. 95, 653 A.2d 640 (1994). Therein, we found that reliance on Greenwood Trust Co. v. Massachusetts, supra, was misplaced since Congress defined the term “interest” narrowly in section 85 of the National Bank Act, 12 U.S.C. § 85, and therefore, did not express an unequivocal intent to occupy the field generally so as to preempt state usury laws altogether. The definition of interest used when addressing federal preemption must be that described in federal law and not state law since Congress cannot delegate the federal preemptive legislative power over the states to one state. Although Mazaika involved national banks, its holding that interest is defined narrowly applies by analogy to appellees as state banks in this case since the definition of the highest interest allowable set forth in both section 85 of the National Bank Act, 12 U.S.C. § 85, and DIDA virtually is identical. Section 1831d of DIDA, in pertinent part, provides:

In order to prevent discrimination against State-chartered insured depository institutions, including insured savings banks, or insured branches of foreign banks with respect to interest rates ... such State bank or such insured branch of a foreign bank may ... take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at a rate of not more than 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where such State bank or such insured branch of a foreign bank is located or at the rate allowed by the laws of the State, territory, or district where the bank is located, whichever may be greater.

Yet, neither statute undertakes to include the contingent contractual late penalty charges at issue within its numerical definition of “interest.” Therefore, our holding in Mazaika that state usury law is preempted only to the extent of the narrow definition of interest is controlling.

Judgment reversed. Case remanded. Jurisdiction relinquished.

BECK, J. files a Concurring Opinion.'

BECK, Judge,

concurring.

I join the majority opinion. I write separately only to make clear the analogy by which Mazaika v. Bank One, Columbus, N.A., 439 Pa.Super. 95, 653 A.2d 640 (No. 0231 Philadelphia 1993, filed December 14, 1994) (en banc) applies to this case.

In Mazaika, the defendants were national banks, and as such were governed by the National Bank Act, 12 U.S.C. § 85 (“NBA”). The NBA authorizes the exportation of the national bank’s home state “interest” to other states such as Pennsylvania. In our decision in Mazaika we held, however, that federal law — the NBA — did not preempt all state consumer protection and usury laws limiting the charging of penalties and late fees. Instead, the term “interest” as used in the NBA means the percentage rate of interest charged to the loan and nothing more, notwithstanding any broader meaning the national bank’s home state may allow. Mazaika, supra at 101, 653 A.2d at 646.

In this case, the defendants are federally insured state chartered institutions, and as such are governed by the Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U.S.C. § 1831d (“DIDA”). The usage of the term “interest” in this federal statute is the same as in the NBA. By analogy to our preemption analysis in Mazcdka, then, DIDA’s exportation authority preempts Pennsylvania’s definition of “interest” only narrowly. Notwithstanding the existence of broader home state definitions of “interest,” Pennsylvania’s laws on penalties and late charges still control these banks when they do business in Pennsylvania.

I therefore would reverse the lower court’s decision to the contrary.

      . We note that The Chase Manhattan Bank formerly was a federally chartered banking association until June 21, 1990.

      . 12 U.S.C. § 85, in pertinent part, similarly provides:
      Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidence of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more....


text:
    653 A.2d 700
    COMMONWEALTH of Pennsylvania, Appellee, v. Minguel MONTAVO, a/k/a Minguel Montano, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 30, 1994.
    Decided Jan. 10, 1995.

      John H. Moore, Erie, for appellant.
    William R. Cunningham, Dist. Atty., Erie, for Com., appellee.
    Before POPOVICH, SAYLOR and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from judgment of sentence entered in the Court of Common Pleas of Erie County, following appellant’s conviction on charges of possession of cocaine with intent to deliver and criminal conspiracy. Herein, appellant, Minguel Montavo (a/k/a Minguel Montano), presents the following questions for our review: A) Whether the suppression court erred in refusing to grant appellant’s motion to suppress physical evidence; and B) Whether the trial court erred in permitting the affiant, Anthony Bozich, to testify as to his opinion that the defendants were engaged in drug trafficking? Having reviewed the record and the parties’ briefs, we agree with the lower court’s disposition of appellant’s suppression motion. However, we find that the lower court erred when it permitted Pennsylvania State Trooper Anthony Bozich to testify that, in his opinion, appellant and his co-defendant were engaged in drug trafficking. Accordingly, we reverse and remand for a new trial.

The relevant facts, as set forth by the trial court, are as follows:

[SJometime in November of 1992, Pennsylvania State Trooper Anthony Bozich became aware that the individuals living at 2320 German Street, Erie, PA, were allegedly involved in the distribution of crack cocaine. Trooper Bozich learned the identities of the individuals residing at 2320 German, those persons being Miguel Montano, Francisco Heredia, Carmen Feliciano, and Ms. Feliciano’s children. From then on, sporadic surveillance of Montano and Heredia was conducted. Montano and Heredia were seen meeting with various person for short periods of time on the street, in parking lots, and in apartment buddings. These meetings occurred in areas of the city which are known for drug trafficking.
On January 13, 1993, surveillance was again conducted on Montano and Heredia. The men were followed as they left the residence, and were seen at the following locations: Jethro’s Club Steakhouse, Twenty Grand Cafe, 16th and Holland Streets, Country Fair at 26th and East Avenue, and the 16th Street projects. Again, [Montano and Heredia] were seen at these locations for relatively short periods of time. Later that evening, the Strike Force returned to the residence and retrieved two bags of garbage from the front of the residence, at curbside. During trial, Heredia indicated that he took the garbage out that night. A search of the garbage produced rectangular-shaped tape (which was testified as being consistent with the packaging of large amounts of cocaine), and sandwich baggies with the corners cut off. A field test was conducted on the baggie corners, and the results provided the basis for a search warrant. The following day, January 14, a search warrant was executed. Upon arriving at the residence, the Strike Force observed Montano and Heredia leaving the residence. After approaching [Montano and Heredia] and advising them of the search warrant, all parties entered the residence, whereupon they encountered Ms. Feliciano and the children. The search of the home and persons therein yielded the following:
1. Two pagers with a telephone area code of 215.
2. Identification cards of Carmen Feliciano.
3. Paper with the name Heredia on it.
4. An application for a duplicate driver’s license in the name of Heredia.
5. An express mail receipt.
6. Certificate of title of 1981 Toyota Coupe in the name of Heredia.
7. Social Security card of Miguel Montano.
8. A digital scale which was uncovered from the basement floor.
9. Two vibrating digital beepers (GTE Motorola beepers).
10. An address book.
11. A photo identification depicting Heredia; however, in the name of Carlos Santos.
12. Money transfer receipts.
13. $1,460.00 from Montano’s bedroom.
14. $300.00 from a pair of men’s pants.
15. Glad sandwich baggies with the corners removed in some.
From a shed which was located within the premises’ curtilage, two mason jars of cocaine were recovered. Trooper Mark Schau testified that upon arriving at the residence and executing the warrant, there was only one set of footprints going from the house to the shed and back (there was snow on the ground at this time). The only other notes of importance are that during the search, Heredia gave the Strike Force a false name when asked, and that [Montano and Heredia] were read their rights in both English and Spanish.

Trial Court Opinion, February 28, 1994, at 3-5.

Thereafter, appellant was charged with one count of possession of a controlled substance with the intent to deliver and one count of criminal conspiracy. A jury trial was held on September 21-23, 1993, resulting in a finding of guilt on both charges. Appellant was sentenced to a term of seven-to-ten-years imprisonment for possession with intent to deliver to be served concurrently to a term of five-to-ten-years imprisonment for conspiracy. Post-trial motions were filed and denied. This timely appeal followed.

Appellant first contends that the trial court erred in denying his motion to suppress the physical evidence seized, as a result of the search of the first floor of the 2320 German Street residence as there was not sufficient probable cause to support the search warrant. We disagree.

It is well-settled that Pennsylvania has adopted the “totality of the circumstances” approach in determining whether a search warrant is supported by probable cause. See Commonwealth v. Davis, 331 Pa.Super. 285, 293, 480 A.2d 1035, 1039 (1984). See also Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). With this standard of review in mind, we will assess appellant’s claim.

After a careful review of all of the information contained in the affidavit of probable cause, we find that the affidavit was sufficient to support • the warrant allowing a search of 2320 German Street. Appellant resided at 2320 German Street. The record demonstrates that there was information provided by several confidential informants indicating drug trafficking between 2320 German Street and 17th Street. In addition, an informant actually witnessed two sales of cocaine at 2320 German Street. During one of these sales, the informant received information that sales were regularly conducted at 2320 German Street and that there was a connection between the drug activity at 17th Street and the drug activity at 2320 German Street. While the information obtained from the confidential informants related to events occurring more than a month before the search warrant was requested, as the information indicates continuous drug activity, this passage of time becomes less significant. See Commonwealth v. Ryan, 300 Pa.Super. 156, 170, 446 A.2d 277, 284 (1982) (“Properly recited facts indicating activity of a protracted and continuous nature make the passage of time less significant”) (citation omitted).

Moreover, the information from the confidential informants was corroborated by surveillance of the occupants of 2320 German Street on January 13, 1993, as well as the search of the contents of the garbage bag left in front of the German Street residence. Specifically, the occupants of 2320 German Street were seen proceeding to the 17th Street residence and returning to the 2320 German Street residence several times. In addition, they were seen in a bar where drug trafficking commonly occurs. Finally and most importantly, the garbage bag belonging to the occupants of 2320 German Street contained traces of cocaine as well as drug packaging material consistent with the sale and distribution of cocaine. Since there was sufficient information in the affidavit of probable cause to support a search of the 2320 German Street residence, we find appellant’s suppression claim to be without merit.

Appellant next contends that the trial court erred in allowing an expert witness for the Commonwealth to state his opinion that appellant was involved in drug trafficking. We agree with appellant and are convinced that Trooper Bozich should not have been allowed to testify concerning a matter which was beyond the scope of his qualification as an expert and which was not beyond the ken of lay jurors. Accordingly, we reverse and remand for a new trial because of the severely prejudicial effect of permitting the arresting officer to state expressly that he was convinced that appellant was involved in narcotics trafficking.

The record reveals that after Trooper Bozich recited his experience and training in narcotics investigation, the Commonwealth offered “Trooper Bozich as an expert witness in the packaging and/or distribution of crack cocaine ... ”. N.T., 9/22/93, p. 28. Defense counsel stipulated to the trooper’s qualifications and stated, “As far as the packaging of cocaine, I have no problem with him testifying as an expert.” The Commonwealth then proceeded to ask Trooper Bozich a series of questions concerning an area known as 16th and Division, also known as Lake City Dwellings, Twenty Grand Cafe and Jethro’s Steakhouse. Trooper Bozich testified that all three areas were known to be areas with a high volume of drug trafficking. N.T., 9/22/93, pp. 32-33. Trooper Bozich also testified that on the five or six occasions which he conducted surveillance of appellant’s residence during November and December of 1992, he witnessed appellant and one of his co-defendants travel to those narcotics-trafficking locations on several occasions. N.T., 9/22/93, pp. 32, 34. The trooper stated that appellant and his co-defendant would park and meet with individuals on the street, in the yards or inside an apartment at Lake City Dwellings. N.T., 9/22/93, p. 34.

After his brief testimony concerning his personal surveillance of appellant and his co-defendant, Trooper Bozich was asked the following question by the prosecutor: “Based upon your observations at the Twenty Grand Cafe, Jethro’s Steakhouse and/or 16th or 17th and Division and also based upon your experience in undercover narcotics work, were you able to formulate an opinion as to what their activities were?” N.T., 9/22/93, pp. 34-35. Defense counsel immediately objected but was overruled. The following exchange then occurred:

The prosecution: In case you don’t remember the question, let me back up. Based upon your visual observations of [appellant] and [his co-defendant] at location that your told the jury that you observed them, based upon the fact that you indicated that all of those locations, Jethro’s, Twenty Grand Cafe, 16th and 17th and Division are known drug trafficking areas, were you able to formulate an opinion as to whether or not the defendants Montano and Heredia’s activities during the months of December and November of ’92 were inconsistent or consistent with drug trafficking?
Trooper Bozich: Mostly because the only places we ever saw them go were those places, it was my opinion they were probably involved in the trafficking of drugs.

N.T., 9/22/93, pp. 37-38.

Defense counsel again objected to the testimony, and the trial court instructed the jury as follows:

The court: I’m going to caution the jury, it’s his opinion. He saw no drug trafficking. He didn’t witness any dealing or anything like that, he’s just stating that this is his opinion. Now, whether or not you want to take that opinion into consideration because he’s an expert witness in other things doesn’t necessarily mean you have to, but I will tell you this, that in my final charge, I will tell you how to deal with ah expert witness. So I have cautioned you now on this. He’s just saying as far as he’s concerned, it’s consistent with drug trafficking. He cannot identify that these people were actually trafficking in that, and that will be a case of final argument.

N.T., 9/22/93, p. 38.

Trooper Bozieh subsequently testified on direct as an expert on the packaging, distribution and manufacture of cocaine and crack cocaine. He specifically testified that the amount of cocaine, the type of packaging materials and other paraphernalia seized at appellant’s residence were consistent with drug distribution. Trooper Bozieh also explained how crack cocaine is derived from powdered cocaine. No objections were lodged against this expert testimony.

Eventually, on cross-examination, Trooper Bozieh testified that appellant and his co-defendant would generally stay at the locations for only short periods of time. N.T., 9/22/93, pp. 89, 91. Further, on cross-examination, he testified that he never witnessed appellant or his co-defendant give anything to anyone at those locations and, likewise, never saw them receive anything from anyone at those locations. N.T., 9/22/93, pp. 91-92.

It has long been established that expert opinion testimony is proper only where the formation of an opinion on the subject sub judice requires knowledge, information or skill beyond what is possessed by the ordinary juror. Commonwealth v. Carter, 403 Pa.Super. 615, 617-18, 589 A.2d 1133, 1134 (1991), citing Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Brown, 408 Pa.Super. 246, 249, 596 A.2d 840 (1991). Matters of common knowledge may not be the subject of expert testimony. Further, when the matter can be described to the jury and the evidence evaluated by the jury without the assistance of one claiming to possess special expertise, expert testimony is inadmissible. Carter, 403 Pa.Super. 617, 589 A.2d at 1134. Although an expert witness may testify to an ultimate issue of fact, such testimony should be permitted only in those instances where the admission will not cause confusion or prejudice. Brown, 408 Pa.Super. 250, 596 A.2d at 842. Significantly, expert testimony should not invite the jury to abdicate its responsibility to ascertain and assess the facts and, instead, defer to the expert’s opinion. Carter, 403 Pa.Super. 617, 589 A.2d at 1134, citing Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988) and Seese, supra, 512 Pa. 439, 517 A.2d 920. This is especially true when the expert witness testifies as an eyewitness in the case and then, applying his special expertise, expresses an opinion as to an ultimate issue of fact. See, Carter, supra, 403 Pa.Super. 615, 589 A.2d 1133; Davis, supra, at 518 Pa. 77, 541 A.2d 315; Seese, supra, at 512 Pa. 439, 517 A.2d 920.

Instantly, we find it was error to permit Trooper Bozich to testify that appellant’s and his co-defendant’s travels to drug trafficking areas indicated that they were involved in narcotics dealing. We are convinced that the testimony was beyond the scope of Trooper Bozich’s qualification as an expert. The lower court apparently recognized this fact when it gave the jury a cautionary instruction which seems to have told the jury that the opinion was not given as an expert. See, N.T., 9/22/93, p. 38, infra. However, we are unconvinced that the court’s instruction alleviated the prejudice created by Trooper Bozich’s opinion.

More importantly, Trooper Bozich was the eyewitness to the actions of appellant and his co-defendant, in addition to being the Commonwealth’s expert. He testified that he saw appellant and his co-defendant in areas known for drug trafficking, and, based on that fact alone, he opined that appellant and co-defendant were involved in drug-dealing. We see no need for expert testimony at that juncture in the trial since the facts could have been easily assessed by ordinary lay persons. Simply put, special knowledge was not required to determine whether travelling to areas known for drug dealing was consistent with the activities of narcotics dealers. Trooper Bozich’s expert opinion at that point in the trial impermissibly encouraged the jurors to defer to his expertise as a narcotics detective, rather than assess the credibility and import of his eyewitness testimony. Cf., Car ter, supra (expert testimony erroneously admitted where police officers were eyewitnesses to drug transaction and experts on drug trafficking and testified that the events that they witnessed were consistent with drug trafficking).

In sum, we reverse and remand for a new trial. We hold that Trooper Bozich’s opinion that appellant and his co-defendant were drug dealers simply because they were seen in drug trafficking areas was beyond the scope of his expert qualifications. Further, we are convinced that Trooper Bozich’s expert testimony was unduly prejudicial because it prompted the jury to accept his opinion regarding the ultimate issue of fact rather than assess his eyewitness testimony. Laymen certainly could have assessed the eyewitness testimony of Trooper Bozich and inferred that such evidence was indicative of drug dealing without the assistance of an expert.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . 35 Pa.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903.

      . We note that the search warrant covered the first floor of the 2320 German Street residence as well as the curtilage and outbuildings of that address.

      . We note that appellant was tried with his two co-defendants, and all three counsel concurred in stipulating to Trooper Bozich's qualifications.

      . We note that Trooper Bozich’s expert opinion that the packaging, paraphernalia, and quantity of cocaine seized from appellant and his co-defendants was consistent with distribution is not the subject of this opinion since that testimony was clearly admissible. See, Commonwealth v. Campbell, 418 Pa.Super. 391, 614 A.2d 692 (1992); Commonwealth v. Brown, 408 Pa.Super. 246, 252, 596 A.2d 840 (1991); Commonwealth v. Robinson, 399 Pa.Super. 199, 582 A.2d 14 (1990).


author: BECK, Judge:

text:
    653 A.2d 706
    COMMONWEALTH of Pennsylvania v. Donald Carlos URRUTIA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 19, 1994.
    Decided Jan. 27, 1995.

      Diane L. Morgan, Public Defender, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before BECK, HUDOCK and HESTER, JJ.
   BECK, Judge:

The issue we decide, inter alia, is whether evidence of related prior bad acts is admissible where appellant has been charged with stalking. 18 Pa.Cons.Stat.Ann. § 2709(b). We find the evidence of related prior bad acts admissible, and we affirm the judgment of sentence.

Appellant Donald Urrutia was found guilty of terroristic threats and stalking. He was involved in a long term relationship with the victim, Denise Thompson. After having two children, the parties ended their relationship. Following the break-up the trial court granted Thompson’s petition for a Protection From Abuse Order (“PFA Order”). At least twice, Urrutia came to Thompson’s home where he exhibited violent behavior, and in one instance he injured a neighbor’s child. On the day of his arrest, Urrutia again came to Thompson’s residence, becoming violent and threatening to kill her. Urrutia fled when the police arrived but returned later when he believed the police had gone. In fact, the police had merely circled the block and arrested Urrutia after he again exhibited explosive behavior.

After a jury trial Urrutia was convicted of stalking and terroristic threats. He was sentenced to eleven and one half (11/t) to sixty (60) months for stalking and a concurrent probationary term of five (5) years for terroristic threats. Urrutia chose not to file post trial motions and this appeal followed.

Urrutia argues that the evidence is insufficient to support his conviction for stalking. More specifically, he asserts that evidence of the two prior violent episodes were inadmissible as prior bad acts. These incidents occurred after the couple’s relationship ended and before Urrutia was arrested. We disagree.

Pennsylvania enacted a stalking statute because of the growing perceived need to provide increased protection against certain types of predatory behavior. Stalking often is a precursor to increased violence and even homicide. Law enforcement officials view stalking as an early warning of future violence against the victim. In an effort to protect victims, the legislature sought to provide early intervention and possible deterrence. Therefore, Section 2709 of the Crimes Code relating to harassment, was amended to add section 2709(b) defining stalking.

The stalking statute was part of a larger legislative initiative encompassing both civil and criminal enactments. In addition to creating the crime of stalking, the legislature included stalking as a crime for which protective orders may be issued. 18 Pa.Cons.Stat.Ann. § 4954(1). Also, legislation provided that the police are authorized to arrest a suspect “without warrant upon probable cause whether or not the violation is committed in the presence of a law enforcement officer.” 18 Pa.Cons.Stat.Ann. § 4955(b).

Stalking conduct also provides the basis for the issuance of a civil PFA order. 23 Pa.Cons.Stat.Ann. § 6108(a)(9), and police are authorized to arrest a suspect “without warrant upon probable cause whether or not the violation is committed in the presence of the police officer.” 23 Pa.C.S.A. § 6113. The legislative scheme, both criminal and civil, was an attempt to interrupt as early as possible the escalating cycle of violence. With this background in mind we address the substance of this appeal.

Urrutia first challenges the sufficiency of the evidence supporting his conviction for stalking. The standard of review used to determine the sufficiency of the evidence is well established.

The established test is whether, viewing all the evidence admitted at trial, together with all reasonable inferences which can be drawn therefrom, in the the light most favorable to the Commonwealth, the jury (or the court as fact finder) could have properly found that each element of the offense was proven beyond a reasonable doubt. While reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from the facts and circumstances proven in the record, and must be of “such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt.” The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review.

Commonwealth v. Scott, 409 Pa.Super. 313, 597 A.2d 1220 (1991) (citations omitted).

Section 2709(b) of the Crimes Code defines stalking:

(b) Stalking.-A person commits the crime of Stalking when he engages in a course of conduct or repeatedly commits acts towards another person, including following the person without proper authority, under circumstances which demonstrate either of the following:
(1) an intent to place the person in reasonable fear of bodily injury; or
(2) an intent to cause substantial emotional distress to the person.

18 Pa.Cons.Stat.Ann. § 2709(b).

Urrutia first asserts that the evidence is insufficient to prove beyond a reasonable doubt that he engaged in a “course of conduct” for purposes of section 2709(b). Course of conduct is defined in section 2709(f) as “a pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.” 18 Pa.Cons.Stat.Ann. § 2709(f). Appellant’s argument is meritless.

The Commonwealth produced ample evidence that Urrutia’s conduct constituted a course of conduct as defined in § 2709(f). The evidence shows that Urrutia was involved in at least two similar violent episodes against the victim prior to the incident on the day of his arrest, and that Thompson procured a PFA Order to protect herself and her children from Urrutia’s ongoing abuse. Additionally, on the day of his arrest Urrutia accosted Thompson not once but twice, fleeing when the police first arrived and returning when he thought the coast was clear. Drawing all reasonable inferences in favor of the Commonwealth, we conclude that the evidence is sufficient to prove beyond a reasonable doubt that Urrutia engaged in a course of conduct as defined in the statute.

Urrutia’s more pivotal argument is that evidence of the two violent episodes before the day of his arrest were inadmissible because they were evidence of prior bad acts. The admissibility of evidence is a matter for the sound discretion of the trial court. An appellate court may reverse only where the.trial court abused its discretion. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989).

Prior bad acts generally are not admissible, especially for the purpose of showing the defendant’s bad character or propensity to commit crime. Billa, supra. This general rule is subject to numerous exceptions, one of which is to show the defendant’s intent. Id.; Commonwealth v. Schwartz, 419 Pa.Super. 251, 263, 615 A.2d 350, 356 (1992), alloc. denied, 535 Pa. 617, 629 A.2d 1379 (1993).

In the instant case, prior bad acts were properly admitted to establish Urrutia’s intent to stalk his victim. The testimony permitted the inference that Urrutia intended to cause Thompson to fear for her physical safety or intended to cause her emotional distress.

Alternatively, the bad acts were also admissible to show a “course of conduct,” an element of the crime. In this case the prior bad acts establish the course of conduct. In Commonwealth v. Evans, the court examined the admissibility of prior bad acts to prove the existence of a course of conduct for harassment. 299 Pa.Super. 529, 445 A.2d 1255 (1982). The court noted that proof of a course of conduct “undermines the appellant’s contention that the reviewing court is precluded from examining the testimony elicited regarding matters that occurred prior to ... the date of the complained of conduct.” See also Commonwealth v. Schnabel, 236 Pa.Super. 280, 284, 344 A.2d 896, 898 (1975) (evidence of single act of misconduct insufficient to establish “course of conduct” element of harassment); Commonwealth v. Showalter, 231 Pa.Super. 278, 283, 332 A.2d 456, 458 (1974) (evidence of prior violence against prosecutrix admissible as demonstrating overall scheme of harassment).

Course of conduct by its very nature requires a showing of a repetitive pattern of behavior. Therefore, where evidence of prior bad acts is necessary to establish the pattern, the evidence is admissible.

Urrutia also challenges the trial court’s admission of evidence of the civil PFA Order. He argues that such evidence is irrelevant and unduly prejudicial. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992). Relevant evidence is usually probative. However, to be admissible its probative value must outweigh its prejudicial effect. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). The PFA order is obviously relevant and probative on the question of intent and course of conduct. The purpose of the PFA Order was to bring “about a cessation of abuse of the plaintiff....” 23 Pa.Cons.Stat. Ann. § 6108(a). Being relevant and more probative than prejudicial, the evidence was properly admitted.

Urrutia next challenges the discretionary aspects of his sentence. A review of the discretionary aspects of sentencing is not available to an appellant as of right, and this court may only reach the merits of . such an appeal where it appears that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.Cons.Stat.Ann. § 9781(b). What constitutes a substantial question must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

Urrutia claims that the trial court did not adequately consider various mitigating factors when crafting his sentence. In particular, he suggests that the court did not give adequate weight to his good work history, his concern for his children, and the fact that on one occasion the victim assaulted him. An allegation that a sentencing court “failed to consider” or “did not adequately consider” certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. McKiel, 427 Pa.Super. 561, 629 A.2d 1012 (1993); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). Such a challenge goes to the weight accorded the evidence and will not be considered absent extraordinary circumstances. McKiel, 427 Pa.Super. at 564, 629 A.2d at 1013. We find that Urrutia’s argument does not raise a substantial question.

Urrutia finally challenges the trial judge’s refusal to recuse herself from the case, alleging that because the trial judge had herself been the victim of harassment and stalking she was unable to preside over this case in a fair and impartial manner. Urrutia argues that the trial court’s decision violated Canon 3(C)(1) of the Pennsylvania Code of Judicial Conduct. Canon 3(C)(1) states that “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.”

In Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 219-20, 489 A.2d 1291, 1298-99 (1985), the Pennsylvania Supreme Court set forth the standards applicable when a charge of disqualification is alleged against a trial judge.

It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events, and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and without prejudice because we recognize that our judges are honorable, fair and competent. Once this decision is made, it is final and the cause must proceed. The propriety of this decision is grounded in abuse of discretion and is preserved as any other assignment of error, should the objecting party find it necessary to appeal following the conclusion of the cause.
If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so, the alleged disqualifying factors of the trial judge become moot.

Id. at 221-22, 489 A.2d at 1300 (emphasis in original). In the current case, Urrutia raised the question of the trial judge’s partiality prior to trial. The judge addressed Urrutia’s concerns and concluded that she was fully capable of presiding in a fair and unbiased manner. It therefore falls to this court to determine whether the trial was fair and impartial. If the trial was fair, any allegations of bias are moot. Id.

Urrutia raises no claim of bias as to the conduct of the trial. The only allegation of bias relates to the severity of his sentence. However, Urrutia’s sentence falls within the sentencing guidelines and presents no evidence of bias on the part of the trial judge. Therefore, Urrutia’s charge of bias fails.

Judgments of sentence affirmed.

      . Pennsylvania’s stalking law became effective June 23, 1993. Because the incidents resulting in Urrutia’s arrest occurred in July of 1993, the statute is applicable in this case.

      . Under Pa.R.Crim.P. 1410, effective January 1, 1994, a defendant is not required to file post-trial motions in order to preserve issues on appeal.

      . • California enacted the first stalking statute in 1990, and by 1994 forty-eight out of fifty states had similar laws on the books. M. Katherine Boychuk, Are Stalking Laws Unconstitutionally Vague or Overbroad, 88 Nw.U.L.Rev. 769 n. 1 (1994).

      . We note that stalking statutes in numerous jurisdictions have been challenged as being unconstitutionally overbroad or vague. See, e.g., Pallas v. State of Fla., 636 So.2d 1358 (Fla.Dist.Ct.App.1994); People v. Heilman, 25 Cal.App.4th 391, 30 Cal.Rptr.2d 422 (1994). However, the constitutional issue is not before us.

      . Urrutia also argues that the evidence is insufficient to support his conviction for stalking because he had a "legitimate purpose” in going to Thompson’s home; that purpose being to see his children. However/ it appears that Urrutia has confused the elements of stalking with the elements of harassment. The crime of harassment requires, among other things, that the Commonwealth prove that the action complained of had no legitimate purpose. 18 Pa.Cons.Stat.Ann. § 2709(a)(3); see also Commonwealth v. Evans, 299 Pa.Super. 529, 535, 445 A.2d 1255, 1258 (1982). Because the crime of stalking has no such requirement, Urrutia's argument is without merit.

      . As a preliminaiy matter we note that Urrutia has failed to provide a "Statement of Reasons Relied Upon for Allowance of Appeal,” in compliance with Pennsylvania’s Rules of Appellate Procedure. Pa. R.App.P. 2119(f). However, because the Commonwealth has failed to object to the defect, we need not dismiss the issue on this ground. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987).

      . Urrutia also suggests that the sentencing court erred by not ordering a pre-sentence investigation report. We point out that Urrutia waived the pre-sentence report and elected to be sentenced immediately. He also asserts error because the trial court did not place on the record sufficient reasons for his sentence. However, appellant’s brief does not develop this issue and it is waived.