text:
    531 A.2d 17
    Joseph Denniston LEET, a/k/a Joseph D. Leet, a/k/a Joseph L. Leet, a/k/a Joseph Irwin Leet, a/k/a Joseph Leet Anslinger, Mary Bernice Anslinger, a/k/a Mary Bea Anslinger, Anna Hartman Good, a/k/a Anna Duncan Hartman, a/k/a Anna H. Good, Widow v. Joseph VINGLAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1987.
    Filed Sept. 10,. 1987.

      Elizabeth A. Dougherty, Harrisburg, for appellees.'
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Cambria County granting an action to quiet title in favor of the plaintiffs (Joseph L. Anslinger and Anna H. Good, individually and as executrix of the estate of Jesse L. Hartman) and against the appellant/defendant (Joseph Vinglas). We affirm.

The facts of record disclose that the plaintiffs filed a complaint seeking to quiet title to property leased to the defendant, for coal mining purposes, by Articles of Agreement dated July 1, 1953, which made provisions for remuneration and the length of the agreement in the following passages:

ARTICLE 2. The party of the second part shall pay to J. Gerst Denniston of 616 Pine Street, Hollidaysburg, Pennsylvania, who is hereby designated by all the other lessors as their agent to receive said payment, the sum of Twenty-five (25c) cents per net ton for the coal mined and removed as determined at the scales; settlement to be made at the end of each and every month during the continuance of this lease, or within thirty (30) days thereafter, the first settlement to be made on October 1, 1953 and to thence continue monthly thereafter.
ARTICLE 3. The term or period covered by this lease shall be for such time as the lessee shall continue to mine and operate on said tract, which mining operations shall be considered to continue until such time as the lessee decides to remove from the operations his mining equipment, tools, rails, buildings, etc., all of which said lessee is hereby authorized and empowered to remove at the time he decides or determines to cease mining operations.

It was also alleged in the complaint that the defendant, as of May, 1968, had ceased operating the leased premises and “thereupon abandoned the mining operation.” (Paragraph 6) Further, the plaintiffs averred that the defendant, in violation of Articles 2 and 3, had not only “refused, failed and neglected to ‘continue to mine and operate on said tract’ ”, but he had “not accounted for nor ha[d] he paid any royalty for coal removed from the leased premises for a period of ten years dating from May, 1968” to the date of their May 22, 1978 complaint to quiet title. (Paragraphs 8 & 9)

Accordingly, the plaintiffs demanded, inter alia, that: (a) the July 1, 1953 agreement be declared null and void, as well as breached, broken and repeatedly violated; and (b) the defendant be barred from asserting any right, lien, title or interest in the leased premises.

In reply, the defendant filed an answer denying that he had removed any equipment, tools, rails or buildings from the site, or that he had any intentions of abandoning the mining operation.

Once a certificate of readiness for trial was filed with the prothonotary, the matter proceeded before the Honorable Eugene A. Creany for disposition in a bench trial, but not before each side submitted, pursuant to local rules of court, pre-trial statements reflective of their respective positions on the question of abandonment.

The trial judge heard evidence on June 25 and 26 of 1984. Thereafter, on October 23, 1985, following the submission of briefs by counsel, an opinion (making findings of fact and conclusions of law) and order were issued granting the plaintiffs’ action to quiet title. Judgment was entered on September 15, 1986. This appeal followed and questions, initially, the trial court’s conclusion that the defendant abandoned the operation of the upper Freeport Vein in Cambria County, also known as the “E Vein”.

In commencing our discussion on the merits of the issue posed, we look to our Supreme Court’s discussion of the elemental aspects of abandonment and the requisite proof to establishing the same; to-wit:

This Court said, in United Nat. Gas Co. v. James Bros. L. Co., 325 Pa. 469, 473, 191 A. 12, 14: “Mere nonuser [sic] does not constitute abandonment; there must be an intention to abandon, together with ‘external’ acts by which such intention is carried into effect; ordinarily, this raises a question of fact to be determined by a jury. Llewellyn v. Philadelphia & Reading Coal & Iron Co., 308 Pa. 497, 501, 502, 162 A. 429.” Further, in this connection, it is stated in Barringer and Adams on The Law of Mines and Mining in the United States, Vol. 2, p. 229: “Abandonment being a question of fact, its determination belongs to the jury and is to be reached by a consideration of the fact of the cessation of work and of the lessee’s explanation thereof. If that cessation is unexplained and has lasted for an unreasonable time, a presumption of abandonment arises * *

MacCurdy v. Lindey, 349 Pa. 655, 658, 37 A.2d 514, 516 (1944).

To elucidate on the preceding barometer, we note the criterion that the intention to abandon, absent some declaration, must necessarily be inferred from the acts and conduct of the party alleged to have abandoned. See Eagan v. Nagle, 378 Pa. 206, 106 A.2d 222 (1954); Gilberton Contracting Co. v. Hook, 255 F.Supp. 687 (E.D.Pa.1966). No less is the nature of the property to be given due consideration, in conjunction with one’s conduct, in assessing the question of abandonment. See Llewellyn v. Philadelphia & Reading Coal & Iron Co., 308 Pa. 497, 502, 162 A. 429 (1932).

Thus, when crystalized, our task is to determine whether the trial court’s findings of fact, which led to the legal conclusion that the defendant “abandoned” the mining of the “E Vein” at the Vinglas Coal Company, are supported by competent evidence. See MacCurdy, supra.

The record shows an accounting by the defendant and his partners/brothers (Walter and John), all of whom testified that it was never their intention to abandon the mining of coal from the upper Freeport Vein, despite a ten-year hiatus (beginning in 1968 and continuing to the date of the filing of the instant complaint in 1978) during which no coal was extracted. Also, during this time, the plaintiffs received no royalties provided for under Article 2 of the 1953 Articles of Agreement.

The reasons proffered by the defendant and his witnesses for refraining- from engaging in the business of deep-mining coal were two-fold: First, economic factors depressing the price of coal counselled against pursuing the joint venture beyond 1968. Second, given the soft coal market, government regulations dictating the installation of methane detectors, dust collectors and additional openings (“drifts”) in the mine for entry rendered prohibitive a continuation of the business of deep-mining coal.

Strip mining was an alternative provided for under the lease, but was conditional upon the lessors approving the practice. Allegedly, the refusal by the lessors, in particular a Mr. Anslinger, to sign a necessary document (“Form C”) required by a 1974 government regulation negated this option, and, in effect, foreclosed the defendant from subleasing the mining operation to a Mr. Sheehan. This version was refuted by counsel for Mr. Anslinger, who did not recall any meeting at which the proposal of strip mining was presented as a viable alternative to deep-mining.

Further, the defendant’s case consisted of the testimony of the Cresson Township Police Chief, Clifford T. Gailey, who recalled being summoned to the mine in 1974 and 1980 because of vandalism reports. On both occasions, the officer recounted arresting individuals caught in the act of dismantling, cutting and loading, for hauling purposes to a “junk” dealer, mine cars, rails and motors.

The 1980 incident is of interest in that the theft charges lodged against the accused were dismissed by the District Justice on the ground that the property was “abandoned”, and, therefore, could not be the subject of a criminal prosecution.

Anthony E. Valeri, a one-time mine inspector for the Pennsylvania Department of Mines and Mineral Industries, appeared on behalf of the defense and testified that, on April 27, 1970, he issued a report on the status of the defendant’s mine. In the “Remarks” section he typed that the mine had been on the “Idle list” and that the defendant wanted to “resume mining operations as soon as possible.” However, before any mining could be commenced, violations in the form of inadequate ventilation, obstruction of the air shaft with rocks, loose rock on the “haulage” road and broken timber along the “track haulage” would all have to be remedied before approval would be forthcoming from the Department of Mines and Mineral Industries to operate.

Also entered into evidence was a November 22, 1971 letter from Valeri to John Vinglas, which read in relevant part:

Relative to your complaint against Crain’s Poultry, Inc; [sic] for Sewage dumping into your Vinglas Mine. Will you please advise me in writing of the situation. I will then contact the owners and make necessary investigation.

Lastly, by affidavit dated May 17, 1978, the defendant acknowledged being advised by Valeri of the requirement in the law that, as of September 7, 1978, “at least one Emergency Medical Technician ... must be on every production shift.”

Albeit Valeri stated that the defendant and his brothers “were always talking about opening” the mine, it is uncontroverted that, by the time the witness retired in 1981, none of the violations listed in his 1970 report was rectified, and, therefore, the mine was not entitled to be reopened. In his words, “It remained the way it was, inactive.”

The plaintiffs introduced into evidence seven black and white still photographs, taken on the 3rd of June, 1976, of the Vinglas Coal Company, which depicted, in graphic-terms, a mining operation which was allowed to become dilapidated and dangerous • and its value depreciated by nonuse and natural elements.

Walter Vinglas, a partner in the Vinglas Coal Company, attempted to rebut the obvious deteriorated condition of the premises captured by the camera’s eye. For example, roofs to the storage shanty and weigh station had collapsed, as well as the “snow” roof to the tipple and a trestle devoid of rails were no longer functional. Whether these events, to name just a few endemic to the operation as a whole, be the product of nature or scavengers attracted to locations of this type, the fact remains that the evidence produced is consistent with a finding of abandonment.

A case wherein “actions speak louder than words” could not have been drafted any better than the scenario at bar. For instance, we have the protestations of the defendant and his brothers that the last thing they wanted to occur was the loss of the mine. If we were to cease our inquiry here, the spoken intentions of the contestants would refute any evidence of abandonment predicated upon an “intention to abandon”. However, our inquiry is not restricted to the spoken word. On the contrary, we are accorded the liberty to scrutinize one’s conduct to ascertain the “true” intention of the defendant and his brothers through their overt actions. See Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966); Eagan, supra; MacCurdy, supra.

We have evidence of the Pennsylvania Department of Transportation constructing a highway dividing the leased premises in half — 30 acres on each side. This work, admittedly, resulted in the Vinglas Coal Company’s underground equipment, valued by Walter Vinglas at $150,000 to $200,-000, to be buried, and necessitating excavation of at least 50' to 52' below the surface before entrance to the mine could be accomplished. Yet, no action has been initiated by the defendant to recoup the loss of his equipment, which, given the defendant’s admission of the “expensive” nature of a salvage operation, is not inconsistent with abandonment.

In the same vein, a complaint to the Department of Mines and Mineral Industries , of the dumping of poultry refuse in the mine, albeit acknowledged as having been received by the Department, was never pursued by the defendant.

Next, and most glaring of all, is the failure of the defendant and his partners to comply with the Department of Mines and Mineral Industries’ conditions precedent to reactivation of the deep-mining process. The defendant’s remarks that, had his request for strip mining been approved by the lessors, the need to comply with the Depart-merit’s findings concerning violations would have been obviated by the above-ground extraction of coal wears thin when one calculates that since 1968 coal mining at Vinglas Coal Company has become non-existent. This status quo, under the defendant’s reading of Article 3 of the lease, could be maintained ad infinitum by not removing any of the equipment from the premises. We refuse to embrace this position since “a lease will not be construed to create a perpetual term unless the intention is expressed in clear and unequivocal terms.” Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 202 n. 5, 519 A.2d 385, 390, n. 5 (1986).

Instantly, the lease is anything but clear on the matter of its duration. The preamble purports to allow the lessee to mine “all the remaining coal, pillars and stumps presently located under” the leased premises. However, it is written in Article 7 that “this mining operation is for the purpose of cleaning up former mining operations____”

At trial, the court opined that “the purpose ... of this mining lease ... was for cleaning up the remaining, former mining operations. So, once you have cleaned up these mining operations, the lease by its terms, by its intent would terminate.” The defendant disagreed and asserted that the lease remained in effect until all of the coal had been removed, and that he had no obligation to mine either.

If the defendant’s position won out, the lease could extend in perpetuity so long as the defendant kept his equipment on the site, despite the fact that he refrained from mining coal. This would, and did, result in no royalty payments (25 cents per ton) to the plaintiffs, and when coupled with the defendant’s unilateral right to not mine makes for a lease which most definitely favored its drafter, the lessee/defendant.

Since the two paragraphs are susceptible to conflicting interpretations, we find them to be ambiguous and open to extrinsic evidence to explain the parties’ intent, and no need to remand is necessary. See Hutchison, supra.

Thus, given that a writing is to be construed against its drafter and not in perpetuity absent clear and unequivocal terms-(which are not present here, see Hutchison, supra), we find that the parties did not intend the lease to be perpetuated by the mere reservation of the defendant’s equipment on the premises in the face of evidence of “abandonment” of the mining operation. Such a conclusion is premised on a plethora of facts, some of which have been discussed supra, and one other is the condition of the property. It becomes obvious that the seeming inoperability of the equipment and deteriorated condition of the buildings cannot be dismissed out of hand by the mere reference to the superlatives (“A-l” and “excellent” to mention a few) used by the defendant and his partners to describe their status. Especially is this so in the face of direct evidence of their being labelled, at least in part, as “junk” by the police officer writing the reports describing the items stolen from the premises by the poachers in 1974 and 1980.

Accordingly, we agree with the trial court’s conclusion of abandonment, and its approval of an implied duty to mine as a predicate for such a holding. This position is consistent with the ruling in Hutchison, supra, which approved of such an implied duty in this Commonwealth where a lease agreement, as is the case instantly, does not provide for the payment of minimum mining royalties in the absence of mining. See Hummel v. McFadden, 395 Pa. 543, 150 A.2d 856 (1959).

Lastly, as for the defendant’s contention that the judge should have recused himself from the trial because of alleged instances of bias and prejudice committed during the proceedings, we find, despite the fact that the claim appears for the first time in the defendant’s brief, its treatment by all concerned warrants, in the interest of judicial economy, a response. See Commonwealth v. Sudler, 497 Pa. 295, 301, 436 A.2d 1376, 1379 (1981); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983); Commonwealth v. Jones, 300 Pa.Super. 338, 348 n. 3, 446 A.2d 644, 649 n. 3 (1982). And, in addressing the matter, we find that the allegations appearing in the appellant’s Brief at pages 20a-27a, even viewed in a light most favorable to the complainant, do not rise to the level implying any bias or prejudice on the part of the trial judge. Accordingly, no abuse of discretion having occurred in denying the recusal motion warrants a denial of the relief requested. See Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985).

Judgment affirmed.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    531 A.2d 22
    Doris LICHTENFELS, Grace Doppelheurer, Samuel F. Morrison, Maxine Beye, Lois Miller, Martha Greene, David L. Morrison, and Raymond Morrison, Appellees, v. BRIDGEVIEW COAL COMPANY and Delta Mining, Inc. Appeal of DELTA MINING, INC.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Sept. 18, 1987.
    Petition for Allowance of Appeal Denied Feb. 16,1988.

      Richard J. Amrhein, Washington, for appellant.
    George L. Hallal, Uniontown, for appellees.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

Appellant challenges an order of the Fayette County Court of Common Pleas that denied appellant’s exceptions to an order directing the prothonotary to pay to appellees the balance of a fund held in escrow. The fund contained a portion of the proceeds from a partition sale. We affirm.

The trial court in this case made the following findings of fact that are amply supported by the record. Appellees are eight of the ten common owners of the 150-acre tract of land that was the subject of the partition sale. On January 10, 1979, appellees, along with one of the other two owners, entered into a lease agreement with appellant Delta Mining Company (“Delta”). The lease, signed by the nine tenants in common, demised the land together with all rights necessary for the proper mining of the coal thereunder, including rights-of-way for transportation and haulage. The agreement provided for the payment of royalties to the lessors based on tonnage of coal mined. The lease did not convey any interest in the coal itself because the coal was not owned by the surface owners. The coal owner had independently contracted to lease a 75% interest in the coal to Delta, with the remaining 25% leased to the Bridgeview Coal Company (“Bridgeview”).

Delta had originally approached the ten owners and sought to enter an agreement to strip-mine the coal beneath the 150-acre tract. In 1979 Delta obtained the signatures of nine of the ten owners on a lease agreement. The remaining owner of the undivided Vio interest, James Morrison, offered to sign the lease if he would receive $.10 per ton more than that offered to the other owners. Delta refused that offer. Mr. Morrison then agreed to sign the lease if Delta would pay him $2,000 immediately and treat it as an advanced royalty. Delta turned down this second proposal. Delta then refused Mr. Morrison’s third and final offer of a sale for $30,000 of his undivided Vioth interest in the surface. In 1982 Mr. Morrison conveyed his Vioth interest to Bridgeview. At about the same time, Mildred Hill, one of the nine who had signed the 1979 lease agreement, also conveyed her Vioth interest to Bridgeview.

Delta, with full knowledge that all owners of the surface had not signed the lease agreement, made expenditures in anticipation of strip mining the tract. The Department of Environmental Resources (DER) advised Delta that in order to get the necessary permit for strip mining, Delta needed the consent of all surface owners.

Because it could not get the consent of all the surface owners, Delta proposed that- the owners of the Vioth interest in the land, the appellees herein, institute an action in partition against Bridgeview to obtain the remaining Vioth interest. N.T., February 13, 1986, at 62. Pursuant to that proposal, Delta and the appellees signed an agreement, dated January 6, 1983, to supplement the January 1979 lease agreement. The 1983 agreement provided that appellees, “at their discretion,” would determine the amount they would offer for Bridgeview’s Vioth interest. Delta agreed to advance 75% of the sale price up to $75,000. The payment would be treated as advanced royalties. Delta also agreed to pay $1,000 in legal fees incurred by appellees in bringing the partition action. This payment would not be recoverable by Delta. In the event that appellees did not prevail at the partition proceeding, the parties agreed that the 1983 agreement would be void.

The trial court conducted the private partition sale, which was confined to the parties to this action. In addition to the attorneys for Bridgeview and the appellees, Delta officials and their attorney were present. Bridgeview made a final bid of $500,000 for the tract. Before the court accepted the final bid, the representative of the Vioth owners and Delta were given the opportunity to discuss their respective positions. Neither party made an additional bid. The court accepted Bridgeview’s bid, and thereafter, 100% ownership of the property vested in Bridgeview.

At a hearing held subsequent to the partition sale, the trial court found that because the 1979 lease agreement had been assented to by nine of the ten owners of the property, the agreement was divested by the partition action. This Court affirmed that finding but stated that “[a]ny rights Delta may have against the Lessors are not subject to review on this appeal,” Lichtenfels v. Bridgeview Coal Co., 344 Pa.Super. 257 at 269, 496 A.2d 782 at 789 (1985). After the sale, $194,000, nearly lh of Bridgeview’s purchase price for the Vioth interest, had been placed in escrow pending the resolution of the parties’ claims to the fund. With our affirmation that the lease agreement was void, appellees filed a petition for rule to show cause why the escrowed proceeds, plus accrued interest, should not be distributed to them. Delta responded that they were entitled to the fund as compensation for the loss of their leasehold interest. The trial court disagreed with Delta and ordered that the balance of the proceeds be paid to appellees. Delta took exception to the order. Their exceptions were dismissed, and judgment was entered in appellees favor. Delta appealed.

Delta claims on appeal that it is entitled to the escrowed proceeds because (1) appellees breached their covenant of quiet enjoyment and “the lease in general” by selling their interest at the partition sale which thereby divested Delta of its leasehold interest, or, in the alternative, (2) appellees have been unjustly enriched because expenditures Delta made in anticipation of mining increased the value of the tract at the partition sale. We find no merit in either of Delta’s claims.

There is an implied covenant of quiet enjoyment in every lease of real property. Pollock v. Morelli, 245 Pa.Super. 388, 392-93, 369 A.2d 458, 460 (1976). The covenant is between lessor and lessee. Id. It is breached when the lessee’s possession is impaired either by acts of the lessor or those acting under the lessor or by the actions of a holder of a superior title. Id. Any “wrongful act” of the lessor that interferes with the lessee’s possession, in whole or in part, is a breach of the covenant of quiet enjoyment. Id. See also Kelly v. Miller, 249 Pa. 314, 317, 94 A. 1055 (1915).

In the case before us, appellant argues that appellees breached the covenant of quiet enjoyment because they failed to outbid Bridgeview at the private partition sale. Instead, they sold their Vioth interest to Bridgeview, which resulted in the extinguishment of the 1979 lease agreement between Delta and the appellees.

Delta’s claim for breach must fail because there was no wrongful act by the appellee-lessors. The appellees did not act unilaterally when they instituted the action in partition. Rather, because the consent of all the surface owners was not forthcoming, Delta had urged the appellees to move for partition. N.T., February 13, 1986, at 62. Delta is now estopped from objecting to the outcome of the partition sale.

To facilitate the partition proceedings, Delta and the appellees entered into an agreement that outlined each party’s obligations with respect to the proceedings. The January 1983 agreement provided that appellees would, “at their discretion,” determine the amount they would bid for Bridgeview’s interest. Appellees did not agree to purchase the interest at any cost. Nor did appellees agree to pay Delta damages if appellees were unsuccessful at the partition sale. Rather, the parties agreed that in the event that appellees did not prevail at the sale, the January 1983 agreement would be void. Appellees did not engage in any wrongful act that could form the basis of a claim for breach of the covenant of quiet enjoyment. Appellees acted in good faith at the sale. They forced the bid to the level Delta agreed to pay. Appellees were under no obligation to purchase Bridgeview’s interest.

The partition sale not only failed to accomplish Delta’s goal of placing the ownership of the entire tract in appellees’ hands, it also divested Delta’s leasehold interest. However, even without the divestment, the interest conveyed to Delta by the 1979 agreement had no value unless Delta could obtain DER permission to strip mine the property. Without the consent of all the surface owners! Delta could not get that permission. Therefore, the performances promised under the contract were frustrated not by the partition sale and the subsequent divestment, but by Delta’s inability to obtain a DER permit. In fact, it was in an attempt to salvage the 1979 agreement that Delta urged appellees to initiate the partition sale. The sale was a final effort to bring about the conditions necessary to enable performance of the agreement.

Because events beyond the parties’ control frustrated the purpose of the 1979 agreement, the situation is governed by the doctrine of “frustration of contractual purpose,” see Alvino v. Carracio, 400 Pa. 477, 162 A.2d 358 (1960)). The doctrine holds that “[w]hen people enter into a contract which is dependent for the possibility of its performance on the continual availability of a specific thing, and that availability comes to an end by reason of circumstances beyond the control of the parties, the contract is prima facie regarded as dissolved.” Alvino v. Carracio, supra, 400 Pa. at 482, 162 A.2d at 361 (quoting Nitro Powder Co. v. Agency of Canadian Car & Foundry Co., 233 N.Y. 294, 297, 135 N.E. 507, 508 (1922) (Pound, J.)). See also Restatement (Second) of Contracts § 261 (1981) (“[w]here, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary”). Moreover, when impracticability excuses a party’s duty to perform, it ends all contractual obligations under the contract. See West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 106 A.2d 427 (1954). See also Restatement (Second) of Contracts § 377 comment a (1981) (“in cases of impracticability or frustration the other party is also ordinarily relieved of any obligation of rendering the return performance that he has promised on the ground of failure of performance (§ 267)”). Because Delta could not obtain the necessary mining permit, Delta’s promised performance of paying to the lessors royalties based on tonnage of coal mined was excused due to impractibility. Delta could not obtain the necessary mining permit. The lessors’ promise to perform under the lease agreement was, therefore, also excused.

Nonetheless, Delta argues that appellees were unjustly enriched because the value of the land was increased by the leasehold interest. It is true that a party whose duty of performance is discharged due to impracticability “is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance,” Restatement (Second) of Contracts § 377 (1981). We have, however, thoroughly reviewed the record in this case and find that Delta has failed to produce any evidence to support its claim for restitution. Appellees have not been unjustly enriched by any of Delta’s actions, and Delta acted unreasonably if it relied on a lease agreement signed by less than all of the surface owners.

Delta did present evidence that it had incurred expenses in both applying for a mining permit and in exploring the site. Nevertheless, neither of these activities conferred any benefit on appellees. A party “cannot merely allege its own loss as the measure of recovery ... but instead must demonstrate that [the other party] has in fact been benefited,” Meehan v. Cheltenham Township, 410 Pa. 446, 450, 189 A.2d 593, 595 (1963). Here, Delta took action in preparation for performance under the contract, but had not begun performance under the terms of the lease agreement. “[A] party’s expenditures in preparation for performance that do not confer a benefit on the other party do not give rise to a restitution interest.” Restatement (Second) of Contracts § 370 comment a (1981). Moreover, any inference that could reasonably be drawn from Delta’s assertion that the value of the property increased as a result of its exploration of the site is discounted by testimony from the February 13, 1986 hearing. It was common knowledge among area coal operators that the tract of land in question had coal deposits beneath its surface. See N.T. February 13, 1986, at 44, 60.

Since appellant has failed to prove either that appellees breached the covenant of quiet enjoyment or that appellees have been unjustly enriched, we affirm the order of the trial court.

Order affirmed.

      . Although in Lichtenfels v. Bridgeview Coal Co., 344 Pa.Super. 257, 267-68, 496 A.2d 782, 788 (1985), we did conclude that in its 1979 agreement with appellees, Delta “in effect” had obtained a “license to strip the coal,” we nonetheless discussed Delta’s interest in terms of a lease. To avoid any further confusion and for the sake of argument, we will entertain Delta’s claim based on the breach of the covenant of quiet enjoyment. Such a covenant would only have bearing on the agreement if it were a lease and not a mere license. See Sparrow v. Airport Parking Co. of America, 221 Pa.Super. 32, 289 A.2d 87 (1972) (a license, unlike a lease, does not bestow upon the licensee the right to exercise the exclusive possession and enjoyment for the term specified).

      . It is possible that some fault for the frustration of the contract’s purpose should be placed upon Delta. It entered into the agreement with less than all the surface owners of the property, and refused the offers made by James Morrison, the tenth owner. " ‘One tenant in common is without authority to bind his covenants by an agreement concerning the use or control, or affecting the title, of the joint property.’” McCullough's Petition, 275 Pa. 456, 458, 119 A. 585, 586 (1923) (quoting Caveny v. Curtis, 257 Pa. 575, 101 A. 853 (1917)).

      . The Restatement (Second) of Contracts refers to the doctrine of "frustration of contractual purpose” as the doctrine of "impracticability of performance.” See Restatement (Second) of Contracts, Chapter 11, "Impracticability of Performance and Frustration of Purpose” (1981).

      . One of Delta’s engineers, Douglas Kerin, testified that whenever the company considers engaging in a mining operation, expenses arc incurred that are connected to engineering studies for the purpose of getting a mining permit. See, N.T., February 13, 1986, at 14.


author: TAMILIA, Judge: CIRILLO, President Judge,

text:
    531 A.2d 434
    COMMONWEALTH of Pennsylvania v. Jorge M. FROMETA, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1987.
    Filed July 29, 1987.
    Reargument Denied Sept. 28, 1987.
    Petition for Allowance of Appeal Granted Feb. 1, 1988.

      Francis M. Socha, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

On February 10, 1986, appellant pled guilty to one charge of possession with intent to manufacture and deliver a controlled substance (cocaine), three charges of unlawful delivery of a controlled substance (cocaine), and two charges of criminal conspiracy to deliver a controlled substance (cocaine). Appellant was sentenced to four (4) to eight (8) years imprisonment on each of the above charges with all sentences to run concurrently. Appellant filed a timely petition for reconsideration of sentence which was denied on May 2, 1986. Subsequently, he filed an untimely notice of appeal to our Court, which was dismissed on July 31, 1986.

Appellant then filed a pro se petition under the Post Conviction Hearing Act, hereinafter “PCHA”, 42 Pa.C.S. § 9541 et seq. This resulted in the appointment of present counsel, who filed an amended PCHA petition on August 29, 1986. After reviewing the amended petition the lower court ordered an evidentiary hearing to look into certain claims of ineffectiveness of trial counsel. The hearing was held on December 15, 1986 and the lower court denied all of appellant’s PCHA claims on January 14, 1987. Appellant timely appeals this denial.

Appellant contends his trial counsel was ineffective in failing to inform him, prior to the entry of his guilty plea, that he could face deportation from this country as a result of a conviction on the charges involved. In finding against appellant, the lower court held that his trial counsel’s failure to advise him of deportation consequences was not prejudicial. (Slip Op., Morgan, J., 1/14/87, p. 1). The lower court reasoned that in order for a defendant to claim harm, a defendant must demonstrate a reasonable probability that, but for this failure by his attorney, the result of the plea proceedings would have been different, i.e., prejudice. (Id. at 2). After the evidentiary hearing, the court concluded appellant had not demonstrated that his basis for entering a guilty plea — that being his hopes for a lighter sentence — would have changed if he had information concerning the collateral deportation consequences of his plea. (Id.).

As has been repeatedly enunciated by the Pennsylvania Supreme Court, when confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interest of his client. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The Supreme Court set forth the standard governing ineffectiveness claims in Commomvealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

[ 0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel’s decision had any reasonable basis.

The burden of establishing counsel’s ineffectiveness rests upon the defendant since counsel’s stewardship of the trial is presumptively effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court separated the ineffectiveness analysis into two distinct components: the performance component and the prejudicial component. Our Supreme Court in Maroney, supra, and its progeny, applied the above two-prong test which effectively comprises the “performance component” of an ineffectiveness analysis. In the recent decision of Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (affirming our en banc decision, 345 Pa.Super. 324, 498 A.2d 423 (1985)), the Pennsylvania Supreme Court compared the standard announced in Maroney, supra, with the standard set forth in Strickland, supra, and concluded that they constituted the same rule. In reaching this conclusion, the Court reasoned that Maroney, and its progeny, also included a prejudice component, and ruled that in addition to showing there was no reasonable basis for the ineffective performance, a defendant claiming ineffectiveness of counsel must demonstrate that he was prejudiced by the ineffectiveness. See Commonwealth v. Bennett, 512 Pa. 525, 517 A.2d 1248 (1986); Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986); Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986); Buehl, supra. In summary, the Court stated: “we insist that our cases require that a defendant must show that the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result thereby.” Pierce, supra, 515 Pa. at 161, 527 A.2d at 976 (emphasis in original). In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court held that the two-part Strickland v. Washington test' applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the Hill Court explained:

The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. (Footnote omitted).

Id. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210.

We find merit in appellant’s argument that trial counsel was ineffective in failing to advise him of deportation consequences. In Commonwealth v. Wellington, 305 Pa.Super. 24, 27, 451 A.2d 223, 225 (1982), we held “that counsel has a duty to an alien client to inquire into and advise her [or him] of the possible deportation consequences of a contemplated plea.” Further, we find no reasonable basis designed to effectuate appellant’s interest for trial counsel’s failure to inform appellant of the collateral consequences concerning possible deportation before entry of the guilty plea.

The remaining step to our ineffectiveness analysis is to determine whether appellant was prejudiced by his counsel’s failure to inform him of the possible deportation consequences. The Commonwealth argues that our holding in Wellington is not controlling in light of the prejudice component to an ineffectiveness analysis which we added in Pierce, decided some three years after Wellington. The Commonwealth points to appellant’s testimony that prior to the commission of his own crimes, he had personal contact with several alien convicts who had immigration detainers against them, (H.T. 12/15/86, p. 14), and argues that appellant thus had actual notice of the deportation consequences. Also, the Commonwealth reasons, as did the trial court, that no prejudice was shown because no evidence was presented that knowledge of the deportation consequences would have affected appellant’s plea, which was entered into with the motive of obtaining a lighter sentence. (H.T. 12/15/86, pp. 6-7).

Upon review of the record, we find appellant was prejudiced by his trial counsel’s failure to inform him of the deportation consequences. Appellant is a Cuban refugee who entered this country by landing in Key West, Florida as part of the “Marielito” boat lift in May, 1980. (H.T. 12/15/87, pp. 10-11). Although appellant’s admitted purpose for entering a guilty plea was a lighter sentence, appellant stated that if he and other Cuban aliens are returned “we will be exposed to all kind of suffering, punishment, loss of even life if we go back. That’s what I am afraid of now.” (H.T. 12/15/87, p. 17). From appellant’s testimony it is evident that he views returning to Cuba as a serious matter involving life and death consequences. Since appellant’s admitted reason for entering a guilty plea was for a lighter sentence, it is obvious that he would not have done so had he thought it could lead to his eventual deportation, which he believes could result in a “sentence” of suffering and possible death.

In finding a duty on the part of trial counsel to advise of possible deportation consequences of a contemplated plea, we stated in Wellington, supra, 305 Pa.Superior Ct. at 27, 451 A.2d at 225:

Deportation is indeed a significant consequence of certain convictions, see 8 U.S.C. § 1251(a), and has been likened to a ‘life sentence of exile,’ Jordan v. DeGeorge, 341 U.S. 223, 243, 71 S.Ct. 703, 714, 95 L.Ed. 886, 898 (1981) (JACKSON, J., dissenting); accord, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433, 436 (1947) (‘the equivalent of banishment’); Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, 943 (1922) (may result in the ‘loss of property or life; or of all that makes life worthwhile’). ‘Defense counsel is in a much better position [than the trial court] to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger.’ Michel v. United States, [507 F.2d 461], 466 [ (2d Cir.1984) ].

The prejudicial aspect of deportation is self-evident in a case dealing with a refugee from a totalitarian communist regime such as Cuba.

Allegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). Due to counsel’s failure to advise appellant of the indirect deportation consequences of a guilty plea appellant entered an unknowing plea in this respect. The fact that prior to the commission of his own crimes appellant may have had contact or even knowledge of other alien convicts facing immigration detainers is irrelevant in demonstrating whether he made a knowing plea or not. The considered advice of learned counsel familiar with a case cannot be compared or substituted by a defendant-layman’s general knowledge of a possibility. Therefore, we find that due to appellant’s trial counsel’s ineffectiveness, he was not able to enter a knowing plea and we must reverse the lower court and remand for further proceedings consistent with this Opinion.

Reversed and remanded for withdrawal of guilty plea and proceedings consistent with this Opinion. Jurisdiction relinquished.

Dissenting opinion by CIRILLO, President Judge.

CIRILLO, President Judge,

dissenting:

I respectfully dissent. Appellant Frometa has not shown that he was prejudiced by counsel’s failure to advise him of the possible deportation consequences of his guilty plea.

This court has previously held that counsel has a duty to an alien client to inquire into and advise him of deportation consequences when considering a plea. See Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982). However, breach of that duty, or ineffectiveness, is not enough to entitle appellant to the relief he requests. As the majority recognizes, after proving ineffectiveness appellant must show that he has been prejudiced. In order to prove prejudice in the context of a guilty plea, appellant must show there is a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The trial court found that, despite counsel’s omissions, Frometa had not demonstrated that his plea would have changed with information concerning the collateral consequences. Frometa admitted that the motivation for his guilty plea was a lighter sentence. He testified at his PCHA hearing that, prior to his own crimes, he had personal contact with several Cuban convicts who had immigration detainers lodged against them. Indeed, Frometa knew that his immigration status might be imperiled if he was convicted of a crime. Moreover, appellant neither alleges in his brief, nor has he testified that, had counsel discussed the possibility of deportation with him, he would have insisted on going to trial. Finally, Frometa has not protested his innocence. Thus, appellant has failed to meet his burden of demonstrating that he was prejudiced by counsel’s ineffectiveness. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (a defendant claiming ineffectiveness must demonstrate that he was prejudiced by the ineffectiveness).

In my opinion, counsel’s error and appellant’s citation to Wellington, without more, does not entitle him to withdraw his guilty plea. See Hill v. Lockhart, supra. See also United States v. Gavilan, 761 F.2d 226 (5th Cir.1985) (where defendant, a Cuban refugee, failed to demonstrate that he would have pleaded differently had counsel advised him that he could be deported following conviction on drug charges, court held counsel was not ineffective); United States v. Campbell, 778 F.2d 764 (11th Cir.1985) (counsel was not constitutionally ineffective for failing to advise defendant of the deportation consequences of her guilty plea).

I would affirm the judgment of sentence.

       ... [F]or relief to be granted, Appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice____ (Emphasis in the original).

      . The dissent finds a lack of prejudice to appellant and would ignore the mandate of Wellington, supra. This Court is not bound by the 5th and 11th Circuit cases cited by the dissent; we are bound by a prior holding of our Court. Under Wellington, and having found the requisite prejudice as outlined in Pierce, supra, we must necessarily reverse the Order of the trial court.

      . We need not address appellant’s sentencing claim due to our decision requiring withdrawal of his guilty plea.


author: TAMILIA, Judge:

text:
    531 A.2d 438
    Gwendolyn SMITH, Admx. of the Estate of Her Father Willie McKinzie, Dec’d v. JAMES C. GIUFFRE MEDICAL CENTER and Dr. Qadar Khan. Appeal of JAMES C. GIUFFRE MEDICAL CENTER.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed Aug. 3, 1987.
    Reargument Denied Oct. 13, 1987.

      William E. Rapp, Philadelphia, for appellant.
    John M. Toscano, Philadelphia, for Smith, appellee.
    Sheryl N. Coplan, Assistant City Solicitor, Philadelphia, for Khan, appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellee, as administratrix of the estate of her father, instituted a medical malpractice action against James Guiffre Medical Center and Dr. Qadar Kahn. On March 30, 1984, following a petition by appellant, Guiffre, an Order was issued directing that appellee “appear for depositions, at the office of said defendant’s counsel, upon due notice thereof, within twenty (20) days of the date of this Order, or appropriate sanctions will be imposed upon application to the Court.” (Order by Greenburg, J., filed April 4, 1984.)

When appellee did not appear for deposition, appellant Giuffre, later joined by Dr. Khan, filed a motion for sanctions requesting the court to enter a judgment of non pros in their favor. Appellee did not respond to the motion, and on January 11, 1985, the court issued an Order directing judgment of non pros be entered against appellee for failure to appear for depositions as directed by the Order of March 30, 1984. On January 30, 1985, appellee filed a petition to vacate the non pros and on July 3, 1985, the Order presently appealed from, was entered granting the petition to vacate.

Appellant/Giuffre contends the court erred, asserting appellee failed to • sustain her burden of proof' on factual issues raised by the response to the petition to open. Specifically, it is argued that appellee did not reasonably explain the failure to respond to the Motion for Sanctions. We need not consider the merits of this argument, however, in that we have determined that the trial court was without jurisdiction to vacate its non pros Order in the first instance. See 42 Pa.C.S. § 5505.

There appears to be a procedural disparity concerning appeals from judgments of non pros. The Court has dealt with such appeals in two different manners: (1) a direct appeal from the entry of judgment on non pros; and (2) an appeal from a motion to remove, strike or open a judgment of non pros. In the case of Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 450 A.2d 157 (1982), in which a panel of this Court quashed as untimely an appeal from an Order dismissing exceptions to a judgment of non pros, the panel stated:

The Pennsylvania Rules of Civil Procedure do not provide for the filing of exceptions to a judgment of non pros. Appellant’s exceptions were similar to a petition for reconsideration. A petition for reconsideration will not stay the appeal period. Appellants should have filed an appeal within the thirty-day period following the grant of the non pros.

Id., 304 Pa.Superior Ct. at 174, 450 A.2d at 158.

The effect of Erie appears to be that a direct appeal may be filed from a judgment of non pros. The more common practice appears to be the situation where after entry of a judgment of non pros, a separate petition to remove, strike or open it is filed and an appeal is then taken from the Order disposing of that petition. See Iole v. Western Auto Supply Co., 352 Pa.Super. 528, 508 A.2d 600 (1986)(appeal from an Order refusing to open or strike a judgment of non pros). In Iole, the Court, in footnote 3, distinguished Erie, supra, finding that although the Order appealed from was interlocutory, Pa.R.A.P. 311(a)(1) permitted the taking of such an appeal. We limited Erie to the facts of the case in that exceptions to the non pros were treated as a motion for reconsideration and did not toll the thirty-day appeal period.

Cases treated in a similar fashion include Storm v. Golden, 338 Pa.Super. 570, 448 A.2d 39 (1985); Buxbaum v. Peguero, 335 Pa.Super. 289, 484 A.2d 137 (1984); and Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984), all of which were appeals from Orders granting petitions to open judgments of non pros. Numerous other cases followed the above approach.

Despite the plethora of cases which deal with a motion of non pros in the same fashion as a default judgment, the specific application of the rules to default judgments as a result of sanctions imposed at some point in the proceedings, was not addressed until lately in Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985); Livolsi v. Crosby, 344 Pa.Super. 34, 495 A.2d 1384 (1985); and Simpson v. Allstate Ins. Co., 350 Pa.Super 239, 504 A.2d 335 (1986)(en banc). The disparity arises when an attempt is made to reconcile Pa.R.A.P. 311(a)(1), which implements 42 Pa.C.S.A. § 5105(c) and Pa.R.C.P. 4019(c). Pa.R.A.P. 311(a)(1) states:

(a) General rule. — Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

This rule has often been invoked in cases concerning opening, striking or refusal to open/strike a default judgment. However, a judgment of non pros entered as a sanction is pursuant to Pa.R.C.P. 4019(c)(3) and is not subject to a petition to open. Contrary to judgments entered pursuant to Rule 1037 and Rule 2951, supra, the appropriate parts of Pa.R.C.P. 4019 provide as follows:

Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
(iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take his deposition;
(c) The Court, when acting under subdivision (a) of this rule, may make
(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (emphasis added)

There is no authority in Rule 4019 for such a petition and orderly practice suggests there should be none. See Miller Oral Surgery, Inc., supra. Miller also rejected the argument that Pa.R.A.P. 311(a)(1) had made an Order opening or refusing to open any judgment, even though interlocutory, appealable as of right. There, the court stated: “[T]he trial court’s sanction order entering judgment on the issue of liability in this case was not properly the subject of the petition to open.” Miller, 342 Pa.Superior Ct. at 581, 493 A.2d at 744. In Livolsi, supra, the court held where a trial court entered a sanction Order pursuant to Pa.R.C.P. 4019(c) for a defendant’s failure to comply with a discovery Order, the defendant’s attempt to raise an appealable issue by filing a petition to open judgment would not be allowed. In addition, the court stated the appropriate method for review to be an appeal within the time prescribed by Pa.R. A.P. 903. This rule, of course, requires that an appeal be taken within thirty (30) days of the Order from which the appeal is taken.

Finally, the court’s treatment of a default judgment entered as a discovery sanction in Simpson, supra, held that a judgment imposed as a discovery sanction became final and appealable after no appeal was taken within thirty (30) days absent fraud or extraordinary cause, even though the defendant had filed a petition to open judgment within five (5) days and the trial court failed to act within thirty (30) days.

In Miller, supra, the default judgment was entered on the issue of liability only, and as such was treated as an Order of non pros, which must be appealed within thirty (30) days. In addition, since damages had yet to be determined, litigation was not terminated and the case was not appealable. In Miller, the court construed the sanction Order against the defendant to be nonappealable after thirty (30) days and to be interlocutory in nature as it related to the case as a whole.

Livolsi, supra, took the process one step further, holding, pursuant to Miller, supra, where the defendant failed to respond to sanctions, pursuant to Rule 4019(c)(3), the Court could enter final judgment on liability and damages. Failure of the defendant to file an appeal within thirty (30) days, but instead proceeding to file motions to strike/open judgment some time later, resulted in a quash of the appeal.

In Simpson, supra, again the issue had to do with a defendant (Allstate) failing to respond to Orders to produce required documents following which sanctions were imposed pursuant to Rule 4019(c)(3). Despite the fact that Allstate filed a petition to open within five days of the judgment, it was not until five months later that the court granted the petition. This Court reversed on the theory espoused in Miller and Livolsi.

The present case is distinguishable from the above only in that sanctions were imposed against a plaintiff who failed to respond to an Order to appear for depositions, rather than defendants. We perceive no reason why the law should not apply here, in a like fashion, as in both categories the non pros/default judgments were imposed under Rule 4019(c)(3).

We, therefore, hold that a judgment of non pros resulting from a sanction imposed against a plaintiff (as well as a defendant) for failure to respond in a timely fashion to an Order requiring him to respond to depositions, is a final and appealable Order, and that while the court may review such Order upon a motion for reconsideration, if no appeal is taken within thirty (30) days of the Order, pursuant to Pa.R.A.P. 903, the judgment becomes final and not thereafter subject to vacation on petition. It is abundently clear that as to a plaintiff, a judgment, pursuant to a sanction Order under 4019(c)(3), may not be confused with judgment by default pursuant to Rule 1037. There, a petition to strike/open is directed to the sound discretion of the court and is reviewable without time constraints. The long line of cases which have treated sanction Orders of default/non pros in the same fashion have been repudiated by Miller, Livolsi and Simpson, supra, as to defendants. We now hold that the treatment must apply equally to plaintiffs.

Pursuant to our analysis of this matter, the Order of July 3, 1985, granting the petition to vacate, is hereby vacated; Order of non pros, dated January 11, 1985, is hereby reinstated.

      . § 5505. Modification of orders
      Except as otherwise provided or proscribed by law, a court upon notice to the parties may modify or rescind any Order within thirty (30) days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

      . Rule 903. Time for Appeal
      (a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the the order from which the appeal is taken.

      . A very similar factual situation was recently addressed by our Court in Webster v. Transport Workers Union, 364 Pa.Super. 248, 527 A.2d 1048 (1987). As in this case, a judgment of non pros was entered against plaintiff as a discovery sanction pursuant to Pa.R.C.P. 4019. Additionally, in both actions, plaintiffs filed a motion for reconsideration/petition to vacate within thirty (30) days rather than filing the requisite appeal from the final judgment of non pros. The sole difference in Webster is that there the motion for reconsideration was denied; here, the motion was granted and the non pros vacated leaving defendant to appeal. In Webster, our Court quashed the appeal as plaintiff had not appealed within thirty (30) days. Here, wc must vacate the Order vacating the non pros so as to return the benefit of the non pros to the defendant/appellant.