author: BROSKY, Judge.

text:
    619 A.2d 762
    In re ESTATE OF Elisha B. BROWN, Deceased. Appeal of: David B. ADAMS, Administrator D.B.N.C.T.A. of the Estate of Elisha B. Brown.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1992.
    Filed Jan. 26, 1993.

      Thomas A. James, Jr., Bloomsburg, for appellant.
    Peter J. Hill, Bloomsburg, for Mifflinville United Methodist Church, participating party.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This appeal is from the Order of the court of common pleas of Columbia county, Orphans’ Division, revoking letters of administration granted to appellant and removing appellant as the administrator d.b.n.c.t.a. of the Estate of Elisha B. Brown, deceased.

Appellant maintains that the Orphans’ Division erred in revoking letters of administration on the basis that administration of the Estate had been complete, that appellant was not a fit person to administer the Estate and that appellant is disqualified from acting as Administrator on the basis of self-dealing.

The facts, as gleaned from the Opinion of the trial court, appear to be as follows: The decedent, Elisha B. Brown, (the decedent), died testate in 1885, and his Will was probated that same year. On May 4, 1992, appellant petitioned the Register of Wills of Columbia County for letters of administration d.b.n.c.t.a. In his petition, appellant averred that he sought appointment as administrator d.b.n.c.t.a. for the purpose of securing a reversion of real estate deeded by the decedent to the Mifflinville United Methodist Church (the Church) located in Columbia County because the Church had violated the terms of the said deed. As a consequence of the breach of the terms of the said deed, title to the real estate reverted to the estate of the decedent.

The Opinion of the trial court states that appellant filed an action against the Church at No. 322 of 1990 in the Columbia County court of common pleas to quiet title to this property and that appellant claims that he obtained a judgment by default against the Church in this action and that he therefore asserts a superior title to the real estate involved. The trial court then goes on to state in its Opinion that summary judgment had been granted in this same action in favor of the Church, thus dismissing appellant’s claim to the said real estate. In its petition to revoke the letters of administration granted to appellant, the Church refers to the action in quiet title filed at No. 322 of 1990, but states that judgment on the pleadings was entered in favor of appellant. The petition also refers to another action filed by appellant at No. 640 of 1992 in the Columbia County court of common pleas against the Church seeking title to the said real estate by virtue of the reversion referred to in the deed. No disposition of this action is alleged by the Church, and the trial court in its Opinion makes no reference to it. Hence, we have a record before us which makes reference to two related causes of action not before us and which contains conflicting and incomplete versions of events surrounding the grant of letters of administration. Unfortunately, we have no record support for the facts surrounding these two causes of action as recited in the Opinion of the trial court, and these facts cannot become part of this record by virtue of the trial court’s reference to them in its Opinion. See Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983). Moreover, the record before this court does not contain any testimony from any of the interested parties because, apparently, the trial court did not hold a hearing on the Petition to remove. Rather, it disposed of the matter on the basis of petition and answer. Therefore, we will make our disposition based upon what we have been able to piece together as undisputed from the meager record before us, including the Opinion of the trial court, and the Briefs of the parties to this appeal.

The Church filed its Petition to remove appellant as administrator d.b.n.c.t.a. pursuant to Section 8182 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 3182, alleging that appellant has an interest adverse to that of the Estate. The interest which the Church alleges to be adverse is appellant’s ulterior desire to transfer the real estate involved to himself rather than to protect the property from a use or uses other than that set forth in the testamentary deed. An Answer consisting of general denials of the averments of the Petition was filed by appellant.

The trial court based its decision to remove appellant as administrator upon two assumptions. First, the court reasoned that since the decedent passed away more than one hundred years ago, “it is safe to concluded [sic] that [the administration of the estate] was completed long before 1992.” Opinion, p. 1. The court reached this conclusion even though the records of the Register of Wills of Columbia County failed to disclose evidence of any administration. As an alternative ground for removal, the court concluded that appellant was engaged in obvious self-dealing by having himself appointed as administrator so that he could attempt to divest the estate of any interest in the subject real estate by having the court declare him the owner of the property. The court considered appellant’s conduct in attempting to gain title to the real estate in question by attempting to thwart the interests of the Estate to be a classic example of self-dealing. The court relied upon In re Estate of Banes, 452 Pa. 388, 305 A.2d 723 (1973) for the proposition that a fiduciary/administrator need not act fraudulently for the purpose of self-dealing. Instead, the test is “whether the fiduciary had a personal interest in the subject transaction of such a substantial nature that it might have affected his judgment in material connection.” At 396, 305 A.2d at 727, citing Downing Estate, 162 Pa.Super. 354, 57 A.2d 710 (1948); emphasis in original. The court also cited In re Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1978), as authority for the removal of an administrator/fiduciary who had engaged in self-dealing.

We agree that the trial court was correct in revoking letters of administration d.b.n.c.t.a. granted to appellant and in removing him as administrator d.b.n.c.t.a. of the Estate of the decedent. However, the inconsistencies in the record before us coupled, with the lack of an evidentiary basis for so concluding that appellant was engaging in self-dealing or that the Estate had indeed completed administration long before 1992, compels us to affirm for a reason different from that relied upon by the trial court. See, e.g., Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987). Our independent search through the Probate, Estates and Fiduciaries Code has disclosed the following for our enlightenment. Section 3152 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 3152, states: “Letters testamentary or of administration shall not be granted after the expiration of 21 years from the decedent’s death, except on the order of the court, upon cause shown.” No one disputes that the decedent passed away more than one hundred years ago in 1885. Thus, it was substantially after the passage of twenty-one years that the Register of Wills issued letters of administration to appellant on the Estate of the decedent.

At this juncture, we need to admonish counsel that it is the appellant’s responsibility to provide the appellate court with a complete record for review. See, e.g., Pagesh v. Ucman, 403 Pa.Super. 549, 589 A.2d 747 (1991). The Petition for letters of administration d.b.n.c.t.a., which would reveal the reason for which appellant sought appointment as administrator of the estate of the decedent well in excess of twenty-one years after the decedent’s death, is not included as part of the record certified to us. See note 1, supra at p. 763. Therefore, we are unable to determine, in the absence of the Petition from the certified record, whether appellant has shown cause for the grant of letters in excess of the statutory period. We are able, however, to ascertain from the Opinion of the trial court, the parties’ Briefs and the Petition to remove that appellant’s reason was to secure a reversion of the subject real estate. Needless to say, this reason, standing alone, is not determinative of cause shown. Since, as we have noted earlier, the record in this case is meager, we must conclude, based upon the parties’ arguments in their appellate Briefs to this court, the information contained in the Opinion of the trial court and the Petition to remove, to which appellant responded only in terms of general, rather than specific, denials, that appellant has not shown cause for the grant of letters in excess of the period prescribed in Section 3152.

This situation is unlike that occurring in In re Schulz’ Estate, 374 Pa. 459, 98 A.2d 176 (1953). There, the supreme court directed the appointment of an administrator d.b.n.c.t.a. to administer the estate of the decedent who passed away in 1917 because the then appointed administrator/trustee, who had since died, improperly acquired all the interests of the beneficiaries in the subject real estate, including his brother’s interest as a life tenant, without the appointment of guardians for the minor remaindermen, the children of the life tenant, and without notifying all the remaindermen children of his proposed acquisition of their interests, even though their father assigned his life interest to the administrator/trustee. The court in Schulz held that the appointment of an administrator d.b.n.c.t.a. was necessary in order to effectuate the sale of the real estate involved if no family settlement entered into by all interested parties, including the remaindermen, was made as to how the real estate would be divided among the heirs of the decedent.

Similarly, in In re Treat’s Estate, 341 Pa. 342, 19 A.2d 354 (1941), pursuant to an earlier but similar version of Section 3152, 20 P.S. § 342, Act of June 7, 1917, P.L. 447, § 2(b), the supreme court affirmed an Order directing the Register of Wills to issue letters of administration d.b.n.c.t.a. to Marine Bank for the estate of a decedent who had passed away in 1913 on the basis that the first executrix was deceased and had not during her tenure as executrix administered unpaid notes as part of the decedent’s estate. The court held that due cause had been shown by the Bank/petitioner for the grant of letters to determine if the decedent’s estate still had funds owed to it, i.e., the unpaid notes given to the decedent by his son.

In sum, we affirm the Order removing appellant as administrator d.b.n.c.t.a. of the decedent’s Estate for having failed to show cause why his appointment was necessary outside the period prescribed by Section 3152.

Order affirmed.

      . The record certified to this court does not contain appellant’s petition requesting letters of administration, nor does it contain a copy of the deed conveying the subject real estate to the Church. Neither the Opinion of the trial court nor any other document included with the certified record impart to us the nature of the violation causing reversion of the subject property to the decedent’s estate.

      . Both appellant and the Church have filed reproduced records with this court which contain, inter alia, a copy of the complaint in quiet title filed at No. 640 of 1992, with accompanying Exhibits of a copy of the testamentary deed from the executor of the decedent’s Estate to the Trustees of the Church, a copy of a final decree filed at No. 322 of 1990, and a purported, written copy of the decedent’s Will. The supplemental reproduced record filed by the Church includes, inter alia, a copy of the Answer and New Matter of the Church filed at No. 640 of 1992, appellant’s Answer to the New Matter, a typewritten copy of the purported Will of the decedent and a copy of appellant's petition for letters d.b.n.c.t.a.
      We are unable to consider the reproduced documents relating to the actions filed at No. 322 of 1990 and No. 640 of 1992, because, first, they are not part of the record in this case but, rather, are filed to causes of actions which are not presently before this court. We may only consider on appeal facts appearing in the record certified to this court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Secondly, with respect to the Petition for grant of letters of administration, a document not filed of record does not become part of the certified record by the mere expedient of reproduction. Pittsburgh’s Airport Motel, Inc. v. Airport Asphalt & Excavating Co., 322 Pa.Super. 149, 469 A.2d 226 (1983).

      . The only two applicable sections under which appellant could be removed are Section 3182(1) or (5). Section 3182(1) calls for removal of a personal representative who, inter alia, wastes or mismanages the estate. Section 3182(5) mandates removal when, for any reason, the interests of the estate are likely to be jeopardized if the personal representative is not removed. Section 3182(2) is inapplicable because appellant has not been adjudged a lunatic, a habitual drunkard or a weakminded person. Similarly, appellant has not become incompetent by reason of illness or mental incapacity to administer the estate. Section 3182(3). Finally, appellant has not moved his residence outside the Commonwealth, nor does he have an unknown place of residence in this Commonwealth. Section 3182(4).

      . The Church has raised the applicability of this section for the first time in its appellate Brief. Appellant argues that this argument has been waived because it was not presented in the trial court. Appellant concedes, however, that the requirements of this section have otherwise been met. Although the applicability of Section 3152 was not raised in the trial court, as noted in the text, supra, our independent search through the Probate, Estates and Fiduciaries Code has disclosed the existence of Section 3152.

      . Because of our disposition, we need not consider appellant’s claim that he was a fit person to administer the estate pursuant to 20 Pa.C.S.A. § 3155(b)(5), relating to persons entitled to be granted letters of administration.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    619 A.2d 766
    COMMONWEALTH of Pennsylvania v. Mark MUKINA, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed Jan. 27, 1993.

      William P. Weichler, Erie, for appellant.
    Patrick M. Carey, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ. ■
   HESTER, Judge:

Mark Mukina appeals the judgment of sentence of six to twenty-four months imprisonment which was imposed after a jury convicted him of one count of driving while under the influence of alcohol. This was appellant’s fourth conviction for driving while under the influence and his fifth arrest for that crime. We reject appellant’s contention that his conviction of driving under the influence with a blood alcohol content in excess of .10 percent is infirm because the Commonwealth failed to relate back his blood alcohol content test readings to the time that he was driving. Instead, based upon the reasoning of Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), we conclude there was sufficient evidence for the jury to determine that appellant was driving with a blood alcohol content of .10 percent or greater, We affirm.

Pennsylvania State Police Trooper Richard E. Gemmell testified that at 12:25 a.m. on June 20, 1991, he and his partner, Trooper Gregory A. Walton,- were patrolling Route 6N in Edinboro. One mile before the intersection of Drake Town Road and Route 6N, they started following a white General Motors mini van. They followed the van for approximately one mile, and it was being driven erratically. The vehicle was weaving back and forth and on “three occasions the vehicle did cross the double yellow line of the highway.” Notes of Testimony, 2/7/92, at 22. They stopped the van and found that appellant was the sole occupant and driver. The Troopers detected a “strong odor of alcoholic beverage” on appellant’s breath and notieed that he had “slurred speech” and “glassy, bloodshot eyes.” Id. at 22-23.

The officers asked appellant to exit the car and perform field sobriety tests. He failed them, was given Miranda warnings, and was placed under arrest and immediately transported to Millcreek Community Hospital for blood extraction. The blood sample was drawn at 1:26 a.m., one hour after appellant was driving. Appellant’s blood alcohol content was .204 percent, more than twice the legal limit.

Appellant cross-examined the Commonwealth’s expert toxicologist, Dr. Kenneth Walter Simkowski, extensively about the blood alcohol content test. Dr. Simkowski admitted that the test would not measure a person’s blood alcohol content one hour prior to when the blood was drawn, that a second test was not administered, and that if a second test had been administered, it would have established whether appellant’s blood alcohol content was rising or falling.

Based on this evidence, the jury convicted appellant of driving while under the influence to a degree which renders the person incapable of safe driving, 75 Pa.C.S. § 3731(a)(1), and driving while under the influence with a blood alcohol content of .10 percent or greater, 75 Pa.C.S. § 3731(a)(4). This appeal followed imposition of the described sentence.

Appellant contends that based on Jarman and Modaffare, his convictions are infirm. In Jarman, a state trooper noticed that one of the headlights of the defendant’s car was extinguished. The defendant was driving steadily within his lane and was not traveling too fast or too slow. The trooper pulled over the defendant’s car and detected alcohol on his breath. Appellant’s performance on the field sobriety tests was slightly substandard. He was transported to a hospital, and one hour after the defendant exited his vehicle, his blood was drawn. His blood alcohol content was .114 percent.

The Supreme Court observed that in order to be convicted under section 3731(a)(4), one’s blood alcohol content 'while driving must be .10 percent or greater. The Court determined that the jury lacked a sufficient basis to convict the defendant under section 3731(a)(4) since the Commonwealth’s expert failed to relate back the test results to the time that the defendant was driving. The Court based its decision on the fact that the test result barely exceeded the .10 percent level and that the time lapse between the driving and the taking of the sample was not insignificant. The Court also observed that the expert admitted that the laboratory’s blood testing equipment had a margin of error of plus or minus 10%, which would have placed the defendant’s blood alcohol level as low as .104 percent at the time that the sample was drawn. Finally, the defendant testified that he had his last drink during a time which would have meant that his blood alcohol content was rising between when he was driving and when the sample was drawn. This evidence was not contradicted. The Court concluded that under those circumstances, the inference of guilt was too weak to sustain the conviction under section 3731(a)(4).

In Modajfare, the defendant struck a parked car. Two hours after the accident his blood sample was taken, and he had a blood alcohol content of .108%. The physician who drew the blood sample testified that a person’s blood alcohol level fluctuates so that the level rises after drinking until a peak is reached and then declines. He admitted that the defendant’s level may have been rising during the time of the accident and when the sample was drawn. Once again, the Court concluded that the expert testimony on the issue of blood alcohol content at the time that the defendant was driving was ambiguous and left open to speculation whether a violation of section 3731(a)(4) occurred. Specifically, the Court’s conclusion rested on the fact that the result of the test exceeded the legal limit by only a small amount, and the time lapse between when the defendant was driving and when the blood was drawn was significant.

In both Jarman and Modajfare, the Court limited its holding to the facts presented. Furthermore, and highly relevant to the present case, the following language appears in both opinions:

In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.

Commonwealth v. Jarman, supra, 529 Pa. at 96, 601 A.2d at 1230-1231; see also Commonwealth v. Modaffare, supra, 529 Pa. at 105-06, 601 A.2d at 1235 (where the Court used identical language except that it characterized the two-hour delay between the driving and the extraction of the blood sample as a “significant” delay).

Herein, the blood alcohol content reading was more than double the legal limit. Further, the one hour delay between when the sample was taken and when the defendant was driving was not viewed as significant by the Supreme Court in Jarman, it was viewed as “not insignificant.” Moreover, the decision in Jarman rests upon two key factors not present in this case. First, the expert in Jarman admitted that his equipment had a margin of error which would have placed the defendant’s blood alcohol content within .004 percent of the legal limit at the time the defendant was driving. Second, the uncontradicted evidence was that the defendant’s blood alcohol content would have been rising between the time that he was driving and when the sample was drawn.

Herein, appellant’s blood was significantly more than the legal limit, the one hour delay between when he was driving and when the sample was taken is not substantial, and there was no evidence that his blood alcohol content was rising. We therefore conclude that the inference of appellant’s guilt was not weak, and there was sufficient evidence to support appellant’s conviction under section 3731(a)(4). Also compare Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992) (relation-back testimony required since .1488 percent was not a substantial departure from .10 and evidence established that defendant’s blood alcohol content was rising between driving and blood extraction).

Appellant’s second argument relates to the form of the trial court instructions. As we conclude that the trial court correctly disposed of that issue, we reject this argument based on its opinion dated April 6, 1992, at pages three to four.

Judgment of sentence affirmed.


text:
    619 A.2d 769
    PRIME MEATS, INC., an Ohio Corporation v. William YOCHIM and Patrice Yochim, Appellants, v. VERNICK FINANCIAL SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed Jan. 27, 1993.

      See also 416 Pa.Super. 659, 601 A.2d 1303.
    Gary H. Nash, Erie, for appellants.
    Edwin W. Smith, Erie, for appellees.

      Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   HESTER, Judge:

William and Patricia Yochim appeal from the order of the Court of Common Pleas of Erie County denying them class certification. After scrutinizing the uncontroverted testimony of appellants, it is clear that they were unable to establish the common law elements of fraud. Specifically, they failed to prove misrepresentation of a material fact and justifiable reliance upon that misrepresentation. As a finding of fraudulent conduct is a prerequisite to invoking the Consumer Protection Law under which appellants appeal, and as this is the basis upon which appellants assert their ability to represent the proposed class, we must affirm the order denying certification.

On March 12, 1987, appellants purchased a food contract and a service contract from appellee, Prime Meats, Inc., a retailer of food to consumers. The food contract consisted of a six-month supply of meat which would be custom-cut as per appellants’ specifications and delivered to their home, and reorder assistance was given when requested by the customer. In addition, if the order was not to the customer’s satisfaction, if the ordered items were not delivered, or if the quality was not as expected, generally, the company would replace the order. Also, if the purchasers should relocate before the completion of .the contract, it would be transferred to a similar company in the customer’s new location. As an added service to the customer, the delivery person would unload the meat order and pack it in the customer’s freezer before leaving. Customers were given the opportunity to renew the food service contract at the end of the six-month period.

The service contract was a separate agreement between appellants and appellee. It, too, offered a quality guarantee and assurance that the delivery driver would pack the customer’s order in their freezer upon arrival. Additional services were: a twenty percent discount on the price of the order; replacement meat if the order spoiled due to to freezer malfunction; repair service on freezers owned by customers, as long as the units were ten years old or less; repair service on all freezers sold by appellee; and delivery of “loaner” freezers while repairs were made to a customer’s freezer. In addition, the contract provided a guarantee against food order price increases for twenty-four months.

The price of the food contract was $720. Financing was arranged for appellants by appellee through Vernick Financial Corporation. After financing, the total amount owed by appellants was $758.22. The price of the service contract was $999. At a 17.995% interest rate, the total amount financed by appellants for the service contract was $1196.64. It lasted for ten years, after which time the customer could renew for $19.95 a year. Appellants were told that by law, they had three days to cancel the contracts.

At the hearing, appellants testified that they understood their right to cancel either or both contracts but that the method of cancellation was unclear. They testified that no misrepresentations were made to them during the sale of the contacts, and that the contracted services were performed as promised. Finally, appellants testified that they were told that only freezers ten years old or less would be covered, and that the salesman told them that their freezer was at least sixteen years old. Nonetheless, appellants testified that they purchased the $999 service agreement specifically for the freezer service guarantee. Appellants clearly reiterated their knowledge that their freezer was not warranted, Notes of Testimony, 5/24/91, at 9, 18, and 19. Specifically, Mrs. Yochim testified that after the contracts were signed, but prior to the salesman’s departure, the salesman reiterated the fact that their freezer was not covered by the service contract because it was approximately sixteen years old. While Mr. Yochim testified on the other hand, that upon reflection, he felt that even if his freezer had been covered, and even if Prime Meats had come to his home to repair it on multiple occasions, regardless of how many times the meat had been cut to his specifications or replaced, and regardless of the discount, he “felt the price was too high for what [they] received.” Reproduced Record (“R.R.”), at 181.

On May 24, 1990, Prime meats filed a collection suit against appellants, seeking payment on the unpaid balance of $759.62 on the service contract. Appellants responded by filing an answer, new matter, and a counterclaim against Prime Meats. In the counterclaim, appellants’ alleged that the contract was “unconscionable” as it was excessive in price for the services provided. They also alleged numerous other violations of interstate and consumer acts. Specifically, they claimed that the contract was printed in small print, it did not contain an easily detachable notice of cancellation, and that appellee had failed to complete a portion of appellants’ contract. Appellants sought to establish a proposed class of individuals consisting of all other Pennsylvania customers of appellee who had signed retail installment agreements with it and had financed those retail agreements through Vernick Financial Services, Inc., or any other financial institution through which financing was arranged directly or indirectly by appellee from July 25, 1984, through the date of the filing of their complaint, May 24, 1990. In addition, appellants joined Vernick Financial Services, Inc., the financing agency for the Prime Meat contract, as an additional defendant in the class action counterclaim.

On October 30, 1990, after appellants had filed preliminary objections, the trial court ruled, “Unconscionability may be used as an affirmative defense by the defendant but not for affirmative relief on the counterclaim.” R.R. at 63. Consequently, appellants filed an amended claim seeking to raise unconscionability as an affirmative defense under the Pennsylvania Unfair Trade Practices Act. Prime Meats filed an amended complaint seeking to limit the legal theories for the creation of appellants’ class to specifically pleaded provisions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPA”), 73 Pa.C.S. § 201-1 et seq. In response, appellants alleged that Prime Meats was guilty of unconscionable and unfair pricing practices under UTPA. In addition, they averred that Prime Meats had violated two specific violations of the Federal Trade Commission Trade Regulation Rule concerning cool-off periods for door-to-door sales, 16 C.F.R. 429, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S. § 201-7. On February 25, 1991, the trial court ruled that the parties “shall have the right to re-submit the issues raised in other pretrial motions. These objections may be re-submitted at a later time in the form of objections to certification of class, motions for summary judgment or motions for partial summary judgment.” R.R. at 102.

After a period of discovery, appellants moved for class certification. Appellees, who opposed certification, argued that appellants had failed to prove the prerequisites which are necessary to a class action. After briefs were filed, and arguments were heard, the court issued its order denying certification of appellants’ proposed class on March 12, 1992. Appellants filed a motion for consolidation of all pending collection actions. On December 20, 1990, the hearing court issued an order which consolidated specific cases and stayed collection activity by appellees during the pending class action certification process. Appellees’ request for bond pending the stay was denied by the hearing court on January 14, 1991. Consequently, appellees appealed both the December 20, 1990 order and the January 14, 1991 order. On October 22, 1991, we quashed the appeal. This appeal from the order denying class certification followed.

Appellants’ only argument on appeal is a challenge to the order denying them the permission to proceed as a class. Specifically, they charge that appellees are guilty of fraudulent conduct and unfair trade practices because they charged an unconscionable sales price for the service agreement. They argue that the unconscionable sales price constitutes unfairness in violation of Federal Trade Commission (“FTC”) standards. Before addressing the merits of appellants’ claim, we look to Pa.R.C.P. 1702 for the prerequisites of a class action.

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. Adopted June 30, 1977, effective Sept. 1, 1977.

Further, to determine whether the representative parties adequately will represent the class under Pa.R.C.P. 1702(5), we must look to the criteria set forth in Pa.R.C.P. 1708 which provides:

In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth in subdivisions (a), (b) and (c).
(a) Where monetary recovery alone is sought, the court shall consider
(1) whether common questions of law or fact predominate over any question affecting only individual members;
(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
(ii) adjudications with respect to individual members of the class would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
(5) whether the particular forum is appropriate for the litigation if the claims of the entire class;
(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate class actions;
(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
(b) Where equitable or declaratory relief alone is sought, the court shall consider
(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class.
(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b). Adopted June 30, 1977, effective Sept. 1, 1977.

It is well-settled in the law, that an appeals court will give “appropriate deference” to the findings of the hearing court with regard to class certification. Janicik v. Prudential Insurance Co. of America, 305 Pa.Super 120, 127, 451 A.2d 451, 454 (1982). “ ‘Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class.’ ” Id., quoting Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Therefore, our standard of review mandates that we not overturn the hearing court’s ruling absent an abuse of discretion. Hayes v. Motorists Mutual Insurance Company, 370 Pa.Super. 602, 537 A.2d 330 (1987).

In this appeal, the only dispute addressed is appellants’ ability or lack thereof to represent the class. Appellants argue that appellees specifically-violated the catch-all provision of 73 Pa.C.S. § 201-2(4)(xvii) which prohibits “[e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” (emphasis added). In section (59) of their class action allegations, appellants define fraudulent conduct as follows: “(a) Charging an unconscionable sales price for the service agreement to all customers constitutes an unfair trade practice, (b) Charging an unconscionable sales price for the service agreement constitutes ‘unfairness’ in violation of Federal Trade Commission Standards.” R.R. at 83-84. While prohibited from asserting a claim of unconscionability for affirmative relief on their counterclaim, appellants seek, on appeal, to raise the issue as the means by which they may be afforded affirmative relief under UTPA. These claims regarding the unconscionable sales price were the crux of appellants’ counterclaim in which they alleged that appellees had engaged in fraudulent conduct. Appellees argue that appellants are not capable of properly representing a class of individuals because the value of the service agreement would vary with the level of service utilized by each customer. It is upon these issues that this appeal focuses.

Appellees challenge appellants’ contention that common issues of fact predominate with regard to the alleged unconscionable fee charged by appellees for the service contract, while appellees stress the UTPA requirement that appellants prove fraudulent conduct to maintain a cause of action. In Rizzo v. Michener, 401 Pa.Super. 47, 61, 584 A.2d 973, 980 (1990), we recognized:

“[T]he key to invoking § 201-2(xvii) of the Consumer Protection Law is fraud ... Actual fraud has five elements which must coalesce. There must be (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damages to the party defrauded as a proximate result.”

We have determined therefore, that in order to recover under 73 Pa.C.S. § 201-2(4)(xvii), the elements of common law fraud must be proven.

However, in support of their contention as to the existence of fraud in this appeal, appellants seek to convince us that there exists a statutory fraud—one presumably where there exists no need to prove the five well-settled elements. Instead, appellants argue that the fundamental purpose of the catch-all provision in the statute “is to create enforceable unfair trade practice violations that do not require proof of common law fraud.” Appellants’ brief at 11. In support of their contention, appellants rely upon Commonwealth v. Monumental Properties, 459 Pa. 450, 329 A.2d 812, (1974). Appellants maintain that Monumental Properties clearly paves the way for the recognition of a new legal concept—statutory fraud. Specifically, they refer to the following language: “Since the Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense, it is to be construed liberally to effect its object of preventing unfair or deceptive practices.” Id., 459 Pa. at 460, 329 A.2d at 817 (emphasis added).

We believe the above language was not an attempt to redefine the common law principle of fraud. Rather, it was a reference to the numerous legislative attempts to thwart fraud. This is readily evident from a telling footnote in the opinion.

The classic examples [of legislative attempts to prevent the exploitation of unfair advantage in market transactions] are the statute of frauds, ...; the statute of limitations, ...; the statute of wills,....
Modern instances of legislative attempts to remedy fraudulent dealings include the Securities Act of 1933, ...; Securities Exchange Act of 1934, ...; Uniform Fraudulent Conveyance Act, ...; Pennsylvania Securities Act of 1972,.....

Id., 459 Pa. at 458, 329 A.2d at 816.

At no point in the opinion, however, does the Supreme Court redefine fraud. The Court merely states that as a society, we recognize the existence of fraud, and we have enlisted the services of the legislature to find the means by which it may be deterred. In fact, the Court chose to include a portion of the House Conference Report which accompanied the original passage of the Federal Trade Commission Act. It states:

It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specially defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task.

Id., 459 Pa. at 463, 329 A.2d at 818, quoting H.R.Conf.Rep. No. 1142, 63d Cong., 2d Sess. 19 (1914). Clearly, the legislature and the courts recognize that havoc would reign supreme if an attempt was made to create a statutory fraud.

We now proceed to determine whether appellants have satisfied the UTPA requirement and have proven the existence of fraudulent conduct on the part of Prime Meats. Initially, we note that the common law elements of fraud require that a purchase must have been made in reliance upon a misrepresentation or other alleged deceptive practice, resulting in a detriment to the individual consumer. Clearly, the existence and subsequent proof of the existence of common law fraud or of reliance, generally, would require an individual determination as to each potential class member.

In Klemow v. Time Incorporated, 466 Pa. 189, 352 A.2d 12 (1976), the Pennsylvania Supreme Court recognized the well-settled conclusion that fraud is an inappropriate vehicle upon which to predicate a class action. After urging the appellant in that case to proceed individually, the Court went on to note:

Plaintiff attempts to assert a cause of action for fraud. The successful maintenance of a cause of action for fraud includes, inter alia, a showing that the plaintiff acted in reliance on the defendant’s misrepresentation.... Because such a showing would normally vary from person to person, this cause of action is not generally appropriate for resolution in a plaintiff class action. Thus, a plaintiff might choose to proceed individually....

Id., 466 Pa. at 197, 352 A.2d at 16. See also Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973); Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); Edelson v. Bernstein, 382 Pa. 392, 115 A.2d 382 (1955).

In the present case, much testimony was devoted to the establishment of the variances in the value of the service contract. Appellants testified that the value of the contract would be different for individual purchasers depending, in part, on how often the purchasers availed themselves of the services offered under the contract, and in part and upon the duration of the accompanying food service contract. Specifically, when asked by opposing counsel if the value or benefit to each of the individuals in the proposed class would vary in accordance with how often the service agreement was used, Mrs. Yochim replied, “Yes.” R.R. at 167. However, it is not on this portion of the testimony upon which we rely in affirming the order. We find more revealing the testimony of the parties which uncontrovertibly refutes the existence of the threshold element in maintaining a cause of action for fraud— misrepresentation. When asked if any misrepresentations were made to her at the time of purchase, Mrs. Yochim replied, “No.” R.R. at 159. Mr. Yochim testified, “My complaint now is that I felt that after receiving the service and, of course, the meat and whatever they provided, that it [the price of the service contract] was too high a price.” R.R. at 178. Later in his testimony, Mr. Yochim admitted, “If we had purchased more food and continued purchasing meat, the value of the plan would have changed.” R.R. at 182. He also denied that any misrepresentations had been made to him at the time of purchase. If, indeed, there was fraudulent conduct by appellee, appellants are incapable of asserting commonality-

Therefore, since UTPA requires that an individual asserting a claim must prove fraudulent conduct, and as proof of fraudulent conduct necessitates proof of the existence of a misrepresentation and reliance upon that misrepresentation, we find that appellants are not suitable representatives for the class based upon their own admissions that no misrepresentations were made to them during the sale of the service agreement. As a consequence, appellants assertions of fraud will not support a class action against appellees.

Order affirmed.

      . Appellants testified that while they fully understood that they had the right to cancel the contract within three days following the sale, they made no attempt to cancel within the time allowed by law.

      . On appeal, these issues were not raised. Appellants choose to argue only their position with regard to the "catch-all" provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa.C.S. § 201-2(4)(xvii) which requires proof and pleading of fraud. Appellants’ brief at 7.

      . Issues relating to these provisions were not argued on appeal.

      . Pa.R.C.P. 1702(4) is at issue on appeal.

      . This is the section upon which the hearing court relied in denying certification.

      . Appellants unsuccessfully urge this court to dispense with the requirement of reliance. The basis of their argument lies in their contention as to the existence of statutory fraud and its definition as any unfair act or practice. Since we have dispensed with that claim, and as common law fraud requires proof of detrimental reliance, we will not address the context of appellants' second issue.


author: HOFFMAN, Judge:

text:
    619 A.2d 775
    Jacob HORNUNG, Appellant, v. SCHAUSEIL INSURANCE ASSOCIATES, INC., Edmund and Dorothy M. Schauseil, Peter DePaul and Nevis DePaul.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed Jan. 28, 1993.

      Jonathan Petrakis, Valley Forge, for appellant.
    Dion G. Rassias, Blue Bell, for appellees. (Submitted).
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order granting appellees’ preliminary objections in the nature of a demurrer as to Counts IV, V and VI and as to all counts in the complaint regarding appellees Dorothy M. Schauseil and Nevis DePaul. Appellant presents the following questions for our review:

I. Where a shareholder’s Complaint establishes that a corporation is wrongfully withholding 50% of his ownership interest therein and has refused shareholder’s request for an accounting, are such facts sufficient to state a cause of action for an accounting and other equitable relief?
II. Where a shareholder’s Complaint establishes that a corporation is wrongfully withholding 50% of his ownership interest therein and the officers and directors have refused to explain their actions or cooperate with shareholder, are such facts sufficient to support claims against the individual officers and directors?

Appellant’s Brief at 2. For the following reasons, we quash in part and affirm in part.

On September 28, 1990, appellant filed a complaint against appellees containing the following counts: (1) conversion; (2) breach of contract; (3) breach of fiduciary duties; (4) review of corporate actions pursuant to 15 Pa.C.S.A. § 1793; (5) request for custodian pursuant to 15 Pa.C.S.A. § 1767(a)(2); and (6) an accounting. On November 21, 1991, appellees filed preliminary objections in the nature of a demurrer as to all counts in the complaint. Appellant filed a response on January 22, 1992. On January 29, 1992, the lower court granted appellees’ preliminary objections and dismissed appellant’s complaint. Appellant filed a petition for reconsideration which was granted on February 10, 1992. Subsequently, on March 13, 1992, the lower court granted appellees’ preliminary objections to appellant’s complaint in part as to (1) Count I, paragraph 20, (2) Counts IV, V and VI, and (3) all counts in the complaint against appellees Dorothy M. Schauseil and Nevis DePaul. Appellant’s timely appeal followed.

In light of the procedural posture of this appeal, we must first determine whether the trial court’s partial grant of appellees’ preliminary objections is an appealable final order. Only an order which effectively puts the litigant out of court is considered final and appealable. See Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981) (citations omitted).

With respect to Dorothy M. Schauseil and Nevis DePaul, appellant is ‘out of court’ as all counts against them have been dismissed. See U.S. Nat. Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985) (“[T]he dismissal of a complaint as to one defendant upon its preliminary objections is a final and appealable order.... ”). Hence, that part of the trial court’s order dismissing all counts against Dorothy M. Schauseil and Nevis DePaul will be reviewed on appeal.

However, our analysis does not end here. Regarding the other appellees, the lower court dismissed only Counts IV, V and VI. In general, “an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.” Praisner v. Stocker, 313 Pa.Super. 332, 337-38, 459 A.2d 1255, 1258 (1983) (citations omitted).

However, where separate and distinct causes of action have been joined in one complaint, a judgment entered on one or more of those causes of action is final and appealable because it terminates the litigation upon a separate cause of action and puts the litigant “out of court” on that cause of action. On the other hand, an order dismissing one or more counts of a multi-count complaint which merely sets forth alternate theories of recovery is interlocutory and not appealable because the plaintiff can still proceed to a determination on an alternate theory.

Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 416-17, 589 A.2d 252, 254 (1991) (citations omitted). Because Counts IV, V and VI are not separate and distinct from the remaining causes of action, they are interlocutory and not appealable.

Counts IV and V request relief under 15 Pa.C.S.A. §§ 1793 and 1767(a)(2) of Pennsylvania’s Associations Code. In Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990), appeal denied, 528 Pa. 611, 596 A.2d 157 (1991), this court held that when one count of a multi-count complaint is dismissed and that count sets forth a cause of action based upon statutory law, the mere fact that the other counts have not been dismissed will not preclude us from addressing an appeal of the dismissal. Id. 397 Pa.Super. at 150, 579 A.2d at 975. See also Hardy v. Pennock Ins. Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987). Fundamental to our decision in Gotten was that appellant’s claim requested relief under a specific statute for violations of that statute. By definition, such relief is unique and, hence, we found the statutory claim to be immediately appealable.

In the instant action, however, appellant’s statutory claims request no more than alternative methods of review of the claims raised in Counts I, II and III. 15 Pa.C.S.A. § 1793 provides, in pertinent part:

Upon application of any person aggrieved by any corporate action, the court may hear and determine the validity of the corporate action.... If it is determined that no valid corporate action has been taken, the court may order a meeting to be held in accordance with section 1792 (relating to proceedings prior to corporate action).

Id. In Count IV, appellant requests that, pursuant to section 1793, the court determine whether he is entitled to the relief requested under Counts I, II and III. Not only is this relief not provided for by section 1793, but such relief will be provided for by the trial court’s review of the claims presented in Counts I, II and III. Since it is not a separate and distinct cause of action, the dismissal of Count IV is not appealable.

15 Pa.C.S.A. § 1767(a)(2) provides the following:

(a) [U]pon application of any shareholder, the court may appoint one or more persons to be custodians of and for any business corporation when it is made to appear that:
(2) in the case of a closely held corporation, the directors or those in control of the corporation have acted illegally, oppressively or fraudulently toward one or more holders or owners of 5% or more of the outstanding shares of any class of the corporation in their capacities as shareholders, directors, officers or employees!.]

Id.

In Count V, appellant requests that a custodian be appointed under section 1767 to review the actions of the corporation and thereby resolve the issues raised in Counts I, II and III. Again, appellant does not plead a separate cause of action. He merely requests that the issues raised in Counts I, II and III be reviewed by a court-appointed custodian. As mentioned above, the issues in Counts I, II and III will be decided at trial. Accordingly, the dismissal of Count V is interlocutory and not appealable.

Finally, in Count VI, appellant requests that the trial court order an equitable accounting regarding appellant’s stock ownership in Schauseil Insurance and any improper actions taken by appellees. In Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), this court stated that when recovery on a particular claim is predicated upon whether a plaintiff is successful on one or more of his remaining causes of action, dismissal of that claim will not put the plaintiff out of court and, hence, such a dismissal is not appealable. Id. at 342, 459 A.2d at 1260 (“In cases such as these the plaintiff is not out of court when one of several counts has been dismissed, and it is procedurally preferable to delay appellate review until the entire action has been determined.”).

Where an accounting sought is premised upon undisputed terms of an agreement, the complaining party is entitled to pretrial discovery on the question of the amount due. Gibson v. Botti, 334 Pa.Super. 275, 279-80, 482 A.2d 1332, 1334 (1984). However, where liability is disputed, the party bringing the action must first establish some type of obligation or underlying premise which would entitle that party to an accounting. Id.

In the instant action, appellant’s entitlement to an accounting is premised upon many'disputed facts: whether appellant is entitled to 10% ownership of the corporation and whether appellees committed various improper acts which allegedly diminished the value of the company. Since these issues are both determinative of Count VI and essential elements of the remaining counts, the trial court’s dismissal of Count VI is interlocutory and not appealable.

We now proceed to appellant’s appeal regarding that part of the trial court’s order granting a demurrer to all counts as to appellees Dorothy Schauseil and Nevis DePaul. An order granting preliminary objections in the nature of a demurrer will be upheld where, admitting all well pleaded facts and all inferences reasonably deduced from those facts as true, appellant has clearly failed to state a claim on which relief may be granted. Philmar Mid-Atlantic v. York St. Assoc. II, 389 Pa.Super. 297, 300-301, 566 A.2d 1253, 1254 (1989). Mere conclusions of law will not be sufficient to plead a cause of action. Id. at 300, 566 A.2d at 1254. In the instant action, appellant’s pleadings named Dorothy Schauseil and Nevis DePaul as directors and officers of Schauseil Insurance Associates, Inc. However, since appellant failed to plead any specific facts showing that Dorothy Schauseil and Nevis DePaul knowingly participated in the wrongdoing alleged in the complaint, appellant’s claims were properly dismissed. See Chester-Cambridge Bank & Trust Co. v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943); Moy v. Schreiber Deed Sec. Co., 370 Pa.Super. 97, 535 A.2d 1168 (1988).

Accordingly, we quash this appeal to the extent that it is from that part of the order dismissing Counts IV, V and VI and we affirm that part of the order dismissing all counts against Dorothy Schauseil and Nevis DePaul.

Appeal quashed in part and order affirmed in part.

      . Clearly, the only relief available under this section is the court's grant of a mandatory corporate meeting where there has been inappropriate corporate action.

      . To the extent that the trial court's order dismissed that part of Count V, Paragraph 36 requesting that the trial court "appoint one or more persons to be custodians of Schauseil Insurance Associates, Inc. and control ... the sale of that entity to the other [appellees,]” the order is final and appealable. Appellant’s Complaint, 9-28-90, at 8 (emphasis added). However, the trial court's dismissal of this claim was proper. Since the sale of Schauseil Insurance had already occurred, there was no basis for the trial court to appoint a custodian to "control” the sale of the company.

      . As we stated earlier, we affirm that part of the order dismissing appellant's request of custodial control over the sale of the corporation in Count V, Paragraph 36.


author: HUDOCK, Judge:

text:
    619 A.2d 779
    Robert A. LYNN and Dolores M. Camacho, Appellants, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Jan. 28, 1993.

      Lee Albert, Philadelphia, for appellants.
    Christine M. Brenner, Philadelphia, for appellee.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

Robert Lynn and Dolores Camacho (Appellants) appeal from the order of the trial court granting summary judgment in favor of Prudential Property and Casualty Insurance Company (Appellee) regarding all claims Appellants had against Appellee. We affirm.

The parties stipulated to the facts pertinent to the case: On December 5, 1989, Appellant Robert Lynn and Appellee entered into a contract of insurance which provided, inter alia, first party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). The contract of insurance was effective from that date until June 5, 1990. Appellant Robert Lynn paid a premium of $553. The premium was calculated to provide first party coverage under the MVFRL at the time the parties entered into the contract.

On May 2, 1990, Appellants were injured in a motor vehicle accident in Philadelphia. At the time of the accident, Appellant Robert Lynn was the owner and operator of the car in which Appellant Dolores Camacho was riding as a passenger. As a result of the accident, Appellant Robert Lynn and Appellant Dolores Camacho incurred certain medical expenses. Appellants made proper applications for first party benefits to Appellee pursuant to the above contract of insurance. Appellee paid or challenged these medical bills pursuant to 75 Pa.C.S. § 1797(a) & (b) (Purdon Supp.1992).

On August 22, 1990, Appellants filed a lawsuit for payment of those medical bills which were either not paid or challenged by Appellee. Subsequently, compulsory arbitration was held which resulted in an award for Appellants. Appellee appealed this award to the trial court. The parties entered into a stipulation of fact and thereafter filed cross-motions for summary judgment. Following oral argument and clarification of the order, the trial court entered an order granting Appellee’s motion for summary judgment as to all claims brought by Appellants. This appeal followed.

On appeal, Appellants claim that the trial court erred in granting Appellee’s motion for summary judgment. Our standard utilized when reviewing such claims is well-settled:

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment is to be entered 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 of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party. Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court’s responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless
the case is free from doubt. Tom Morello Construction Company, Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980); Amabile v. Auto Kleen Car Wash, supra; McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969).

Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). With these standards in mind, we shall review the following two claims of alleged trial court error in granting Appellee’s summary judgment:

1. Whether 75 [Pa.C.S.] [§] 1797(a)(b), effective April 15, 1990 shall not be applied retroactively to a contract in effect prior to the April 15, 1990 [MVFRL] Amendments?
2. Whether 75 [Pa.C.S.] [§] 1797(a)(b) violates the Contract Clauses of the Consitutions [sic] of the United States and Commonwealth of Pennsylvania, where the act impairs a contractual right entered into prior to the enactment of the statute.

Appellants’ Brief at p. 3.

The trial court found no merit in Appellants’ first claim since the regulations implementing Section 1797 clearly state that the new amendments were applicable to medical services rendered after April 15, 1990. Because the motor vehicle accident in which Appellants were injured occurred on May 2, 1990, approximately seventeen days after the amendments went into effect, and medical services were rendered thereafter, the trial court found that Section 1797 was not applied retroactively. We agree.

In reaching its determination, the trial court cited the following regulation:

[Section 1797] applies to payments by property and casualty insurers for medical treatment or services rendered on or after April 15, 1990, for the treatment or care of persons covered by automobile insurance, regardless of ivhen the accident or incident resulting in the need for medical care occurred or when the claim was filed.

31 Pa.Code Ch. 68, § 1(a) (emphasis added). In concluding that Section 1797 was applied prospectively, the trial court stated, “[T]hus, the critical date which triggers application of § 1797 is the date when the medical services were rendered, on or after April 15,1990, even if the accident occurred, or the pertinent policy was issued, prior to April 15, 1990.” Trial Court Opinion at p. 5 (emphasis added). That part of the Pennsylvania Code emphasized above does not discuss the effective date of the amendments in regard to when the •pertinent policy was issued. This brings us to a more fundamental issue stated in Appellants’ second issue enumerated above.

The Contract Clauses of the United States and Pennsylvania Constitutions protect contracts freely arrived at by the parties from subsequent legislative impairment or abridgement. First National Bank of Pennsylvania v. Flanagan, 515 Pa. 263, 528 A.2d 134 (1987); Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 187 A. 481 (1936); Ministers and Missionaries Benefit Board v. Goldsworthy, 253 Pa.Super. 321, 385 A.2d 358 (1978). The trial court found, citing both Pennsylvania Medical Society v. Foster, 137 Pa.Cmwlth. 192, 585 A.2d 595 (1991), and Keystone Bituminous Coal Association v. Nicholas DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), for the proposition that the Contract Clauses do not prevent the state from exercising police powers for protection of the public which is paramount to any rights under contracts between individuals, that the amendments to the MVFRL, including Section 1797, were “designed to reduce the cost of providing private passenger automobile insurance in Pennsylvania and provides mechanisms to pass those cost savings from insurance companies to insurance consumers.” Trial Court Opinion at pp. 7-8 (citing Pennsylvania Insurance Department Proposed Regulations, May 18, 1991). The trial court further found that the changes to Section 1797 in no way impaired Appellee’s basic obligation under the policy to provide Appellants with first-party benefits of $10,000. While we find such a conclusion to be overly generalized, for the reasons stated below, we find that the trial court properly granted summary judgment.

A later law cannot abridge a party’s rights under a prior contract; only substantive laws that are in effect when parties enter into the contract are implicitly incorporated into it. Second Federal Savings and Loan Association v. Brennan, 409 Pa.Super. 581, 598 A.2d 997 (1991). However, the Contract Clauses of the state and federal constitutions do not preclude the legislature from passing laws which impose new procedures on the enforcement of substantive rights. First National Bank of Pennsylvania v. Flanagan, supra. Thus, we must determine whether the amendments to Section 1797 infringe upon the substantive rights of Appellant Robert Lynn under his contract of insurance.

At the time Appellant Robert Lynn entered into a contract of insurance with Appellee, Section 1797 read as follows:

A person or institution providing treatment, accommodations, products or services to an injured person for any injury covered by medical or catastrophic loss benefits shall not make a charge for the treatment, accommodations, products, or services in excess of the amount the person or institution customarily charges for like treatment, accommodations, products and services in cases involving no insurance.

Section 1797 now reads:

(a) General rule.—A person or institution providing treatment, accommodations, products, or services to an injured person for any injury covered by liability or uninsured and underinsured benefits or first party medical benefits, including extraordinary medical benefits, for a motor vehicle described in Subchapter B (relating to motor vehicle liability insurance first party benefits) shall not require, request or accept payment for the treatment, accommodations, products or services in excess of 110% of the prevailing charge at the 75th percentile; 110% of the applicable fee schedule, the recommended fee or the inflation index charge; or 110% of the diagnostic-related groups (DRG) payment; whichever pertains to the specialty service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services at the time the services were rendered, or the provider’s usual and customary charge, whichever is less.
... Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider’s full charge and the amount paid by the insurer.
(b) Peer review plan for challenges to reasonableness and necessity of treatment.—
(1) Peer review plan.—Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services.
(7) Determination in favor of insurer.—If it is determined by a PRO or court that a provider has provided unnecessary medical treatment or rehabilitative services or merchandise or that future provision of such treatment, services or merchandise will be unnecessary, or both, the provider may not collect payment for the medically unnecessary treatment, services or merchandise. If the provider has collected such payment, it must return the amount paid plus interest at 12% per year within 30 days. In no case does the failure of the provider to return the payment obligate the insured to assume responsibility for payment for the treatment, services or merchandise. (Emphasis supplied).
Appellants claim that these amendments allow
the insurance company to alter the manner of payment of the insured’s claims for medical expenses by altering the rules for customary charges for treatment which are covered by the insurance company and instituting a peer review plan for challenging the reasonableness and the necessity of treatment. These amendments change the first party benefit coverage of the insurance contract having a detrimental effect on the insured.

Appellants’ Brief at pp. 15-16. Appellants do not sufficiently state how these amendments work to their detriment. As indicated by the language of both sections emphasized above, the insured is held harmless under sub-section (a) for the difference between the amount charged by the provider and the amount paid by the insurer and, under sub-section (b), in no way does the provider’s failure to return a payment for unnecessary medical treatment or services obligate the insured to assume responsibility for payment for these services. Thus, these cost-containment provisions of Section 1797 do not impair the contract with the insured; the only effect of the amendments is to change the way in which a provider is compensated for the services rendered.

In regard to Section 1797(b), Appellants argue that “[i]f the Peer Review determines that the treatment is unreasonable and based upon such conclusion, [Appellants] are denied further payment of their bills then the medical providers will deny further treatments.” Appellants’ Brief at p. 11. While Appellant Lynn speculates that his contract would be impaired if, due to lasting injuries from the 1990 accident,'he desires treatment and is denied same, there is no evidence in the record that this scenario has arisen. We cannot find the obligations of a contract to be impaired based on some future event which may or may not occur.

There being no genuine issue of material fact as to whether Appellant Lynn’s contract of insurance is presently impaired by the 1990 amendments to Section 1797, we find that summary judgment was proper.

Order affirmed.

      . See generally, Chapter 17 of the Motor Vehicle Code; 75 Pa.C.S. (Purdon Supp.1992).

      . As shall be discussed infra, Section 1797 of the MVFRL was substantially amended by Act of February 7, 1990, P.L. 11. No. 6, § 18, effective April 15, 1990.

      . Article 1, § 10 of the United States Constitution reads in pertinent part:
      no state shall ... pass any Bill of Attainder, ex post facto Law, or law impairing the Obligation of Contracts ...
      Article 1, § 17 of the Pennsylvania Constitution reads in pertinent part:
      No ex post facto Law, nor any Law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.

      . Initially, Appellee argues that Appellants have waived consideration of this constitutional claim on appeal because they were raised for the first time in Appellants’ 1925(b) statement of matters complained of on appeal. Upon review of the record, we find that the constitutional claim was raised in Appellants’ cross-motion for summary judgment. Moreover, the trial court addressed the merit of this claim and we shall, therefore, do the same. But cf., Rutledge v. Com., Department of Transportation, 97 Pa.Cmwlth. 98, 508 A.2d 1306 (1986) (waiver found where appellant sought a remand so that the trial court could consider a constitutional issue raised by counsel in a 1925(b) statement filed one month after the trial court wrote its opinion).

      . We find little indication in the present record that Appellant Camacho has received or requested continuing treatment for injuries incurred from the automobile accident at issue. Appellee concedes that it has referred treatment Appellant Robert Lynn received in 1991 to a PRO. Exhibit D to Appellants’ motion for summary judgment, consists of a letter to Appellee from a PRO recommending that Appellee refuse to reimburse for physiotherapist treatments which were administered without a licensed physical therapist. This recommendation, if acted upon, would still not impair Appelle.e’s obligation to Appellant Lynn because he will not be responsible for payment for treatment already received. Moreover, under the former No-Fault Act, the MVFRL prior to the cost-containment provisions, and the MVFRL as it exists today, an insurer can compel an insured to submit to a physical examination. In this way, an insurer has always been able to challenge the legitimacy and necessity of continued treatment of injuries related to automobile accidents. Rather than using the courts to challenge the treatment or expense, the insurer can now refer the treatment to a PRO. The courts remain an option for claims for treatment or services which the insurer refuses to reimburse but does not submit to peer review. See 75 Pa.C.S. § 1797(b)(4) (Purdon Supp.1992). Section 1797(b) has been interpreted to allow for an appeal to a court of law if an insured or provider disagrees with the determination of a PRO and reconsideration is denied. See Elliott v. State Farm Mutual Automobile Insurance Co., 786 F.Supp. 487 (E.D.Pa.1992); Danton v. State Farm Mutual Insurance Co., 769 F.Supp. 174 (E.D.Pa.1991). Thus, the PRO process does not impair any obligation; it merely changes the procedure for challenging medical treatment and expenses.


text:
    619 A.2d 1063
    COMMONWEALTH of Pennsylvania, v. Derrick Shawn WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 3, 1992.
    Reargument Denied Feb. 16, 1993.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted in a jury trial of possession with intent to deliver narcotics. Appellant raises three issues for our consideration, the first two deal with the trial court’s limitation of cross-examination of a key prosecution witness and the last deals with the selection of the jury. We vacate and remand.

On July 28, 1989, appellant was transporting an acquaintance of his, Kevin Adams, to an address in the Hill District of Pittsburgh. Mr. Adams had been recently released from the hospital and was wearing a bandage on his head. After Adams arrived at the requested address he got involved in an altercation with an individual named Robert Taylor. Appellant remained in the car during this incident. After appellant and Adams left the scene the police received a complaint that a man wearing a bandage on his head and riding in a Burgundy Isuzu had assaulted the caller. Police stopped appellant’s vehicle and placed Adams under arrest. While doing so one of the officers noticed marijuana and a white powder on the console of the vehicle. Consequently, appellant was arrested. A search of the vehicle resulted in the seizure of a brown satchel on the floor in front of the passenger seat which contained cocaine and $217. Appellant was charged with possession with intent to deliver narcotics.

At trial, Adams served as the chief witness against appellant and testified pursuant to a negotiated plea agreement with the Commonwealth. During Adams testimony, defense counsel attempted to cross-examine Adams with respect to the plea agreement, as well as with respect to other outstanding charges against him and aspects of mandatory sentences which he could have possibly faced had the agreement not been entered into. Much of this cross-examination was not allowed by the trial court. .

Appellant first challenges the trial court’s refusal to allow cross-examination of Adams regarding other pending charges against him. The trial court allowed cross-examination as to those charges that were involved in a plea agreement with Adams. However, other charges were pending against Adams as well. The court would not allow questioning as to those charges. In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), our Supreme Court indicated that other pending charges was a proper topic for cross-examination. This is a proper topic for cross-examination because it reveals a possible reason for witness bias in the Commonwealth’s favor. The witness who has outstanding charges against him may be testifying in hopes of, or on a promise of, .lenient treatment or consideration on those outstanding charges. The accused has a right to have this information revealed to the jury so that they can properly evaluate the credibility of the witness. Consequently, it was error to refuse cross-examination on this matter, a point candidly and admirably admitted to by the Commonwealth in its brief to this court.

Appellant also challenges the trial court’s decision to disallow cross-examination of Adams with regard to the fact that pursuant to the plea agreement Adams’ exposure to a mandatory three year sentence was eliminated. Our Supreme Court stated long ago that “a witness under an indictment stemming from the same crime which is the subject of the case in which he is testifying may be cross-examined about any favorable treatment which the witness may have already received from the prosecution in the witness’ own case.” Commonwealth v. Coades, 454 Pa. 448, 452, 311 A.2d 896, 898 (1973). Prior to the trial in question, Adams had been charged with possession with intent to deliver, just as was appellant. Due to the weight of the controlled substance involved and pursuant to the mandatory sentencing provisions of 18 Pa.C.SA. § 7508, conviction of this charge would have carried a mandatory minimum sentence of three years incarceration. However, pursuant to an agreement with the Commonwealth, this charge was dropped in exchange for Adams’ testimony at trial against appellant. Appellant’s trial counsel attempted to elicit this point on cross-examination, but this questioning was curtailed by the trial court. Appellant argues that this fact went to the bias of Adams and was proper cross-examination. The Commonwealth counters that this was improper cross-examination because it put the issue of appellant’s punishment, should he be convicted, in front of the jury.

We agree with the Commonwealth that ordinarily it is improper to inform the jury of the punishment that would attend a conviction. However, the cases cited by the Commonwealth in this regard refer to exposing the potential punishment of the defendant on trial. See, for instance, Commonwealth v. Lucier, 424 Pa. 47, 225 A.2d 890 (1967). In the present case this information was attempted to be elicited in regard to the witness against appellant, not as to appellant himself. In this respect the fact that had Adams not made the agreement with the Commonwealth he would have been facing a charge carrying a mandatory three year sentence would indeed seem to establish a possible motive to testify falsely against appellant. The fact that appellant was also facing the same mandatory sentence is unfortunate, but we do not see this as reason to disallow the cross-examination. Hearsay is routinely allowed into evidence on the basis that it is not offered to establish the truth of the matter asserted therein, but instead is offered to show the recitor’s belief or state of mind. The fact that the jury will hear an assertion of fact, and may accord it some weight despite the fact that it is inadmissible to show the truth of the matter asserted, is overlooked. We think the same analogy would follow here. The evidence was offered to attack the credibility of Adams, it was not offered, at least ostensibly, to invoke sympathy for appellant from the jury. The fact that it might, to some degree, have this effect would not, in our opinion, affect its admissibility. Perhaps defense counsel could have posed the questions so as not to draw attention to the fact that appellant faced a mandatory three year sentence. However, to the extent the Commonwealth’s key witness bargained himself out of that potential risk, we believe such a fact would be properly admissible to show bias and motive to testify in a certain fashion.

The combined errors regarding these aspects of the cross-examination of the Commonwealth’s chief witness, Adams, cannot be deemed by us to have been harmless error. As pointed out above, the Commonwealth’s case centered around the testimony of Adams. Particularly when it is considered that appellant’s testimony was to the effect that it was Adams who possessed the cocaine, the relative credibility of Adams and appellant was a major issue in the case. The rulings in question limited appellant’s effort to discredit Adams and therefore prejudiced him. Consequently, the judgment of sentence must be vacated and a new trial granted.

Judgment of sentence vacated, new trial granted.

      . The Commonwealth argues that this issue is waived because it was not set forth in post-trial motions. Appellant counters with the argument that if the issue is waived then counsel must be deemed to have rendered ineffective assistance of counsel. We would be inclined to agree. The Commonwealth's case against appellant relied heavily upon the testimony of Adams. Consequently, an attack on Adams’ credibility was a crucial element of appellant's defense. We can think of no strategical reason for attempting to attack Adams’ credibility but failing to properly preserve a challenge to adverse rulings relative to that attempt. Consequently, if the rulings are deemed to have been erroneous and resulted in prejudice to appellant, a finding of ineffectiveness must follow.

      . Because of our disposition of the first two issues and the decision to remand for a new trial, it is unnecessary to consider the Batson issue regarding the preemptoiy challenges of black jurors in jury selection.


author: CIRILLO, Judge:

text:
    619 A.2d 1066
    COMMONWEALTH of Pennsylvania, v. Daniel LUNDBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1992.
    Filed Jan. 25, 1998.

      Thomas P. Sundmake, Asst. Public Defender, Pocono Pines, for appellant.
    Curtis J. Rogers, Asst. Dist. Atty., Stroudsburg, for Com., appellee.
    Before MCEWEN, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Monroe County denying appellant Daniel Lundberg’s Writ of Habeas Corpus. We affirm.

Lundberg was charged with driving under the influence of alcohol (DUI) in October, 1988. A jury found Lundberg guilty of the DUI charge, post-verdict motions were filed and denied, and sentencing was scheduled. The Honorable Peter J. O’Brien sentenced Lundberg to not less than one year and no more than two years imprisonment to be served at the Monroe County correctional facility. Shortly thereafter, a work release was authorized for Lundberg, permitting him to leave the correctional facility for scheduled periods of time. While out on work release on October 2, 1989, Lundberg fled. At the time of his escape, Lundberg had a balance of approximately four months and twenty-six days left to serve on his minimum sentence. During his illegal absence from Monroe County correctional facility, Lundberg was charged with other crimes in Warren County and Forest County. Specifically, Lundberg was sentenced to different periods of imprisonment by the Honorable Robert Wolfe, P.J.; one in the Warren County prison for a period of not less than one year for DUI, and a separate term of incarceration in a state correctional facility for not less than one year and no more than two years on a charge of implements of escape.

During these subsequent periods of incarceration, authorities from Monroe County lodged a bench warrant and/or detainer upon Lundberg; the purpose of these restraints were due to the remaining sentence that Lundberg had to serve in Monroe County. In early November, 1990, Lundberg was paroled from the state correctional facility in Huntington. A few months later, however, he was reincarcerated on parole violations and also upon the bench warrant and/or detainer from Monroe County. Finally, on March 4, 1992 Lundberg was transported to Monroe County correctional facility to finish the balance of his sentence. Lundberg then filed various legal actions challenging the propriety of his status in Monroe County. Following a hearing held on Lundberg’s petition for writ of habeas corpus, Judge O’Brien rendered an order denying the petition. This timely appealed followed. Lundberg raises three issues for our consideration:

(1) Whether the two one-to-two year sentences imposed by different judges from different counties run concurrently from the date of disposition.
(2) Whether the Commonwealth’s reliance on Commonwealth v. Pfeiffer, 396 Pa.Super 641, 579 A.2d 897 (1990) was unfounded, as the adoption of Pa.R.Crim.P. 1406 changed the sentencing process.
(3) Whether it was error for the sentencing judge to not credit Lundberg for time during which he was mistakenly placed on state parole.

The first and second issues will be analyzed together, as they are closely related. Initially, we note that a decision to grant or deny a petition for a writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Commonwealth ex rel. Kitchen v. Burke, 175 Pa.Super. 597, 601, 107 A.2d 193, 195 (1954); Commonwealth ex rel. Richter v. Burke, 175 Pa.Super. 255, 260, 103 A.2d 293, 295 (1953), cert. denied, 348 U.S. 850, 75 S.Ct. 77, 99 L.Ed. 670 (1954).

The thrust of Lundberg’s argument is that the time he spent serving sentences in the western part of the state should count towards the uncompleted sentence at Monroe County correctional institution. In other words, Lundberg wants his Monroe County sentence treated as a concurrent sentence. He cites Pennsylvania Rule of Criminal Procedure 1406 as authority for his position which reads, in pertinent part, as follows:

(a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant.who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise.
$ ‡ ‡ ‡ ‡ ‡
(c) When, at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences.

Lundberg argues that if it is not specified by the sentencing judge whether or not sentences are to be consecutive, they are automatically concurrent. Although this appears to be a fair reading of Rule 1406, it does not apply to Lundberg’s situation.

In attempting to ascertain the meaning of the statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988), appeal denied, 520 Pa. 604, 553 A.2d 967 (1988); 1 Pa.C.S.A. § 1921. We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989), appeal denied, 525 Pa. 597, 575 A.2d 563 (1990); 1 Pa.C.S.A. § 1922. Were the court to apply Lundberg’s interpretation of Rule 1406, the result would clearly be unreasonable. Rule 1406 expressly provides for the situation where a defendant is “incarcerated for another offense” as in 1406(a), and one where a defendant is “imprisoned under a sentence imposed” for another offense or offenses as in 1406(c). Lundberg, however, was not incarcerated or imprisoned for purposes of Rule 1406, as he had escaped from the Monroe County correctional facility before he committed the additional crimes. Lundberg’s argument under Rule 1406 would therefore lead to an undeniably absurd result as, under Lundberg’s interpretation, he would reap the benefit of serving a concurrent sentence as a result of his own unlawful behavior. This is simply not the type of situation for which Rule 1406 was intended to govern.

We are also persuaded by the Commonwealth’s argument and reliance on Commonwealth v. Pfeiffer, 396 Pa.Super. 641, 579 A.2d 897 (1990). Similar to the facts in the instant appeal, the appellant in Pfeiffer argued that the trial court failed to indicate in its written order whether appellant’s state sentence was to run concurrent to our consecutive with a county sentence which he was already serving and, therefore, that the state sentence was to run concurrent with the county sentence. Id. 396 Pa.Super. at 645, 579 A.2d at 899. In addressing this issue, the court in Pfeiffer unequivocally stated:

Contrary to appellant’s line of case law ... we are not dealing with a situation where both sentences were imposed by the same court to be served in the same institution. Here, we have a situation where different courts have sentenced appellant for different offenses to be served at separate and distinct institutions. In this situation, absent any written indication to the contrary, it is presumed that the sentences are to run consecutively.

Id. at 646, 579 A.2d at 900 (citations omitted). In light of the resolution of this issue in Pfeiffer, it is clear that this court has carved out an exception to the application of Rule 1406.

This position has also been looked favorably upon by federal courts. In Thomas v. Whalen, 962 F.2d 358 (4th Cir.1992) the court reversed the district court’s grant of a writ of habeas corpus, concluding that appellee’s state sentence would not be credited towards his federal sentences. The appellee in Thomas argued that his state sentence was deemed to run concurrently with his federal sentence under Rule 1406(a). The Fourth Circuit, in response to this argument, noted: “It is doubtful that Rule 1406(a) was intended to apply where the two sentences in question have been imposed by different sovereigns. ‘Where different courts have sentenced [a person] for different offenses to be served at separate and distinct institutions,’ Pennsylvania courts presume ‘that the sentences are to run consecutively,’ and Rule 1406(a) does not apply.” Id. at 362, n. 6 (citing Pfeiffer, supra); see also Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.1976), cert. denied, 429 U.S. 851, 97 S.Ct. 140, 50 L.Ed.2d 125 (1976) (holding that the rule of presumptive concurrence of sentences, in the absence of a specific directive that sentences be served consecutively, does not apply where one sentence is imposed by a federal court and the other by a state court).

Lundberg contends that we should disregard Pfeiffer because it interpreted the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894, which has been superseded and replaced by Rule 1406. The majority in Pfeiffer, however, found this to have no impact on the ultimate decision. Despite Lundberg’s attempt to label it differently, the Pfeiffer case and its principles are still good law.

Based on the foregoing, we find that Lundberg’s incarceration in the Monroe County correctional facility is valid; he has not yet completed the minimum term required by such sentence. Lundberg has failed to establish any basis for the grant of a writ of habeas corpus.

Finally, Lundberg argues that he should be granted credit for that time during which he was paroled and subject to the supervision of the Pennsylvania State Parole Board. The case law cited by Lundberg addresses the inadvertent release of defendants from incarceration due to clerical errors. This simply does not apply to the instant case. Rather, through his own misconduct, Lundberg violated the parameters of work release program in which he was placed. He took advantage of a benefit bestowed upon him and, the fact remains, the only reason that there is a balance remaining on the Monroe County sentence is due to Lundberg’s own unlawful behavior. For this he should obtain no benefit. Therefore, no credit should be granted for the time during which Lundberg was paroled.

In light of the authority and reasoning set forth above, we find that there is no basis on which to disturb the trial court’s denial of Lundberg’s writ of habeas corpus. Commonwealth ex rel. Kitchen, supra; Commonwealth ex rel. Richter, supra.

Order affirmed.

McEWEN, J., concurs in the result.

      . The court expressly addressed this issue in a footnote:
      Both parties address this issue utilizing case law which interpreted the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894. This statute was suspended in 1973 and replaced by Pa.R.Crim.P.Rule 1406, 42 Pa.C.S.A. Because we find no substantial change in the law occa-’ sioning the advent of Rule 1406, we deem the case law cited by the parties appropriate and dispositive of the instant issue.

        Pfeiffer, 396 Pa.Super. 641, 646 n. 3, 579 A.2d 897, 899 n. 3 (citation omitted).