text:
    581 A.2d 612
    COMMONWEALTH of Pennsylvania v. Anthony LOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Filed Oct. 12, 1990.

      Alan L. Yatvin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered after a judge sitting without a jury found appellant, Anthony Lott, guilty of theft by unlawful taking or disposition; robbery; possessing instruments of crime, generally; possessing instruments of crime, concealed weapon; criminal conspiracy; and simple assault. For the reasons set forth below, we affirm.

The incident underlying this appeal occurred in the early morning hours of October 20, 1988 when appellant and an accomplice accosted the complainant. The appellant first pulled out a handgun and placed it next to the victim’s head. Next, the appellant and his accomplice frisked their victim and removed his wallet from his pocket. Upon discovering that the complainant had no money, appellant returned the wallet to him.

Appellant entered a plea of not guilty following his arrest and arraignment. At a trial held March 31, 1989, appellant was found guilty of the above listed offenses. Although the certified record contains no copy of appellant’s post-verdict motions, the trial court recorded its denial of post-verdict motions on the informations which are part of the certified record. These entries are dated June 2,1989. The trial judge sentenced appellant to serve consecutive terms of eight (8) to sixteen (16) years for robbery, two (2) to four (4) years for possession of instruments of crime, and one (1) to three (3) years for criminal conspiracy. Appellant’s motion for reconsideration of sentence was denied without a hearing. The instant timely appeal followed in which appellant raises four claims relating to trial counsel’s ineffectiveness and also challenges the discretionary aspects of the sentence imposed.

The burden of establishing ineffective assistance of counsel rests upon the appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Appellant’s obligation is to demonstrate both that “the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987) (emphasis in original). The first inquiry in an ineffectiveness claim is always “whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.” Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). If this threshold is met, it must next be determined that the particular course followed by counsel had no reasonable basis designed to effectuate his client’s interests. Id. The final inquiry is to establish the precise manner in which counsel’s commission or omission prejudiced the appellant. Id. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Id.; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). We note additionally that counsel will not be deemed ineffective for failing to predict a change in the law. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant initially contends that this case must be remanded for a hearing on trial counsel’s alleged ineffectiveness as these claims are being raised for the first time on direct appeal. There is no such requirement in the law of this Commonwealth. A remand for a hearing is appropriate where it is impossible to tell from the record whether the actions of trial counsel could have had a rational basis. Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976). However, remand is not required where an adequate record exists or if it is apparent from the record that trial counsel’s contested actions were “within the realm of trial tactics or strategy.” See id. As the record in the instant case is sufficient to facilitate our review, we need not delay the judicial process by vacating the judgment of sentence and remanding for a hearing.

The first claim of ineffectiveness raised is that trial counsel rendered ineffective assistance by failing to move for recusal of the trial judge who had presided over a suppression hearing pertaining to appellant’s case. However, the mere participation by the trial judge in an earlier stage of the proceedings does not provide a per se basis for requiring recusal of the trial judge. Commonwealth v. Bristow, 372 Pa.Super. 48, 52, 538 A.2d 1343, 1345 (1988), allocatur denied, 520 Pa. 601, 553 A.2d 964 (1988).

The determination of whether a trial judge should recuse himself depends upon the following: the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal. The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. The burden to show prejudice, however, is on the party seeking recusal. If the evidence is admissible, or not of a highly prejudicial nature, recusal is not required, and while it may be the better practice to have a different judge preside over trial than preside over pretrial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. This principle appears to be based on the prevailing view that judicial fact-finders are capable of disregarding prejudicial evidence.

Id., quoting Commonwealth v. Lewis, 314 Pa.Super. 298, 303-04, 460 A.2d 1149, 1151-52 (1983) (citations and quotation marks omitted).

In the instant case appellant bases his argument on the fact that the Honorable Ricardo C. Jackson presided at both appellant’s trial and at the pre-trial suppression hearing held to determine the admissibility of appellant’s confession. Testimony taken at the suppression hearing concerned, inter alia, whether Detective Martin Devlin coerced appellant into making a confession by physically assaulting and threatening appellant. Appellant now contends that as he and Detective Devlin gave totally opposite versions of the facts, the only possible basis on which Judge Jackson could have ruled the confession admissible is by making a pre-trial determination that appellant’s credibility was of a lesser quality than that of Detective Devlin. The gravamen of appellant’s complaint is that he was thus deprived of his constitutional right to a non-jury trial before a judge who was both impartial and who appeared to be impartial.

Appellant’s argument misses the mark for three reasons. First, an accused has the constitutional right to trial by jury; he also has the legal right to waive a jury trial and have the case decided by a judge. Commonwealth v. Wallace, 522 Pa. 297, 312, 561 A.2d 719, 726-27 (1989). However, there is no absolute right to a non-jury trial. Id. at 312, 561 A.2d at 726. The second, and more serious flaw in appellant’s argument, is that he has made no factual allegations demonstrating that the trial judge was biased or partial. Apart from conclusory statements that Judge Jackson was not impartial, did not “appear” to be impartial, and could not have been impartial, appellant has proffered no facts showing that he was entitled to recusal had trial counsel made such a motion.

A party seeking recusal of the trial judge bears the burden of establishing the grounds for recusal. Commonwealth v. Gibson, 389 Pa.Super. 518, 525, 567 A.2d 724, 727 (1989). “Even the fact that the trial judge may have been made aware of improper evidence does not require recusal; because, a trial judge is presumed to be capable of disregarding improper evidence, including evidence of prior criminal acts.” Id. See Commonwealth v. Irwin, 397 Pa.Super. 109, ---, 579 A.2d 955, 957-958 (1990) (judges sitting as factfinders are presumed to ignore prejudicial evidence in reaching a verdict; a trial judge is presumed capable of recognizing in himself the symptoms of bias). Recusal is required only when the evidence brought to the attention of the trial court is both inadmissible and highly prejudicial. Commonwealth v. Gibson, supra; Commonwealth v. Lewis, 314 Pa.Super. 298, 303-04, 460 A.2d 1149, 1152-53 (1983). While the trial court’s knowledge that appellant had confessed to the crimes with which he was charged was certainly “highly prejudicial” to appellant’s defense, appellant has not even argued that this confession was improperly admitted at trial. As the trial judge was not required to grant a recusal motion under these circumstances, trial counsel cannot be deemed ineffective for failing to make such a motion.

Finally, appellant has failed to demonstrate that he was prejudiced by trial counsel’s failure to seek Judge Jackson’s recusal. Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). Appellant has not shown that Judge Jackson would have been disposed to grant such a motion had it been made. It is instructive on this point to note that when counsel for appellant’s co-defendant actually made such a motion, Judge Jackson refused to grant it. N.T. 3/31/89 at 3-4. Additionally, appellant has utterly failed to explain how a motion for recusal, had it been made and granted, could have led to a different result given the evidence adduced against him. In consideration of the above, we see no indication that trial counsel was ineffective in this context.

Appellant next alleges that trial counsel was ineffective for failing to obtain medical records relating to appellant’s post-arrest medical treatment. These records were crucial, according to appellant, in order to bolster his contention that the police coerced his confession through physical violence resulting in the injuries for which he was treated at a hospital the night of his arrest. As our supreme court has ruled, “[t]he reasonableness of counsel’s investigative decisions depends critically on the information supplied by the defendant.” Commonwealth v. Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). The record plainly shows that appellant never informed trial counsel of the fact that he received medical treatment at the time of his arrest. N.T. 3/30/89 at 118. Trial counsel first learned of this fact during Detective Devlin’s testimony at the suppression hearing held the day before appellant’s trial. Appellant is not in a position to fault trial counsel for his own failure to provide his advocate with the facts necessary to mount a timely defense.

Additionally, we find it notable that appellant merely argues that the records pertaining to appellant’s medical treatment “may” corroborate details about his version of the facts surrounding his arrest and confession. Apparently no steps have been taken to determine the exact nature of the contents of the medical records in question. Appellant has not stated the name of the hospital in which he was treated or the nature of his injury. He does not even claim that the purported medical records are available at this time should we grant his request and remand for a hearing on this issue. We will not find ineffectiveness in a factual vacuum. Commonwealth v. Durst, supra. Consequently, we can grant no relief on this issue.

The third ineffectiveness claim raised by appellant is that trial counsel conceded appellant’s guilt at the suppression hearing by jumping to a sentencing issue after appellant’s suppression motion was denied. The record does not, however, support this contention. Further, our careful scrutiny of the record discloses that events did not occur in the precise manner described by appellant. After the suppression court inquired whether he wished to join in co-counsel’s motion for recusal, trial counsel replied in the negative. N.T. 3/30/89 at 119. He then stated that he wished to challenge the Commonwealth’s attempt to seek a mandatory minimum sentence in appellant’s case. Id. The hearing judge indicated that he would consider the matter on the following day before the commencement of trial. Id.

The record shows that the following morning, trial counsel attempted to convince the lower court that a spring gun which the Commonwealth planned to introduce against appellant was not sufficient to bring the mandatory minimum sentencing provisions into play. N.T. 3/31/89 at 5-9. The exchange between the court and trial counsel, viewed in the entirety of its proper context, plainly indicates that trial counsel hoped to effectuate a favorable plea bargain for his client if he could obtain a ruling that the mandatory minimum sentence need not be imposed. Id. As this course of conduct had a reasonable basis designed to further his client’s interests, we will not find trial counsel ineffective on this point. See Commonwealth v. Durst, supra.

The final ineffectiveness claim raised by appellant is a two-pronged argument that (1) trial counsel failed to adequately advise his client regarding the effect of waiving his right to a jury trial and giving permission to incorporate testimony taken at the suppression hearing; and that (2) the waiver colloquy was inadequate because appellant was never informed that he had a right to a proceeding where his presumption of innocence would be intact. In the context of appellant’s recusal claim, we have already found the latter argument lacking in merit. We will not reiterate that discussion here beyond stating the obvious: there is not a scintilla of evidence in the record to show that the lower court was biased, partial or prejudiced against appellant and appellant has pointed to no fact of record indicating that he received other than the full presumption of innocence to which he was entitled. We will not find ineffectiveness absent a showing of prejudice. Commonwealth v. Durst, supra. Nor will we find ineffectiveness in a factual vacuum. Id.

The first prong of this ineffectiveness argument may be viewed as a claim that appellant’s waiver was involuntary and unknowing. We note initially that the decision of whether to waive the right to a jury trial is that of the defendant and not his attorney. Commonwealth v. Wallace, 522 Pa. at 312, 561 A.2d at 727. The law is well settled that a defendant may waive his right to a jury trial if that waiver is knowing and voluntary. Commonwealth v. Carter, 377 Pa.Super. 93, 110, 546 A.2d 1173, 1181 (1988). Before a waiver can be adjudged “knowing and voluntary,” there must be some indication that the defendant knows of the “essential ingredients” of a jury trial. Id. “These ingredients are: that the jury be chosen from members of the community, that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Id. See Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987) (waiver is voluntary and knowing where defendant is apprised that jury would be chosen from members of community, that their verdict must be unanimous and that the accused must be allowed to participate in jury selection); Pa.R.Crim.P., Rule 1101, 42 Pa.C.S.A.

We have carefully reviewed the waiver colloquy conducted on March 31, 1989 and find that appellant indicated at that time that the following facts were true: he was not under the influence of drugs or alcohol; he had never been committed to a mental institution or suffered from mental problems; his absolute right to a jury trial had been explained to him; the jury selection process had been ex plained to him in detail; his guilt would have to be established beyond a reasonable doubt by the Commonwealth and a twelve-member jury would have to reach a unanimous verdict as to that guilt. N.T. 3/31/89 at 9-11. Appellant specifically stated that he agreed to accept a waiver trial with Judge Jackson presiding and that he understood that Judge Jackson would be the only person determining the issues of fact and whether appellant was guilty. Id. at 11. It is apparent from the record that appellant was advised of the elements of a jury trial and that he understood these ingredients. See Commonwealth v. Carter, supra.

Additionally, the following exchange took place regarding the incorporation by reference of testimony taken at appellant’s suppression hearing:

Q. (By trial counsel): Did I also explain to you that I believe any testimony that will come out during a waiver trial was already heard yesterday during the suppression hearing? Did I explain that to you?
A. (By appellant): Yes.
Q. Did I explain to you that sometimes a judge will let an attorney do what is known as incorporate by reference, meaning we’ll not bring out all of this testimony all over again. What was heard yesterday will essentially be your trial. Did I explain that to you?
A. Yes.
Q. Did I also explained [sic] to you, if you wanted to, you would have a right for all this evidence to be heard again and you could testify on your own behalf again today?
A. Yes.
Q. Do you agree you do not think anything will come up today that did not come up yesterday, and if the Judge will let us do it, then we’ll not have a trial all over again?
A. Yes.

Id. at 11-12. We find no basis in the record of the colloquy to support appellant’s contention that he was misled by counsel into giving up any hope for the evaluation of his case on its merits by an impartial factfinder who would have granted him all the benefits of reasonable doubt and the presumption of innocence. Rather, the record fully supports the trial court’s ruling that appellant’s waiver of the right to jury trial was knowing and voluntary and that he understood the implications of incorporating testimony by reference. Thus we can grant appellant no relief on his ineffectiveness claim.

Appellant next argues that the sentence imposed by the lower court was excessive and unreasonable under the circumstances of this case because the sentencing court in essence ignored the Sentencing Guidelines. Appellant does not contend that the sentence meted out to him by the trial court is illegal. Rather, appellant challenges the discretionary aspects of his sentence. Appellant has included in his brief a separate statement demonstrating that a substantial question exists regarding the appropriateness of the sentence imposed under the Sentencing Code as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d.115, 119 n. 7 (1987). “However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. We may therefore consider the merits of appellant’s claim.

Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), allocatur denied 516 Pa. 632, 533 A.2d 91 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), allocatur denied 515 Pa. 619, 531 A.2d 427 (1987).

In the case sub judice, the sentence imposed is within the statutory limits and cannot on this ground be considered inordinate. Our supreme court has ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant information regarding a defendant’s character along with mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In the instant case, the record clearly indicates that the lower court had the benefit of a pre-sentence report. Further, the sentencing judge gave a lengthy explanation on the record of the rationale underlying the sentence imposed. N.T. 6/2/89 at 6-10. At this time, the sentencing judge stated that he had carefully considered the Sentencing Code as a whole as well as the Sentencing Guidelines. Id. at 6. The lower court judge specifically acknowledged that appellant’s case was governed by the Sentencing Guidelines. Id. Thus, the record completely belies appellant’s contentions regarding the actions of the sentencing court. The requirement that the lower court explain the rationale for the sentence imposed as set forth in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and clarified by Devers, supra, has been more than satisfied. We find that appellant has not received manifestly excessive punishment and that the sentencing court provided an adequate explanation for the sentence imposed.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3921.

      . Id. § 3701.

      . Id. § 907(a).

      . Id. § 907(b).

      . Id. § 903.

      . Id. § 2701.

      . We note that appellant has also misstated the law regarding the necessity to demonstrate prejudice in conjunction with an ineffectiveness claim. Footnote one of appellant’s brief contains the statement that “[a]ppellant is aware that ineffectiveness, without resultant prejudice to him is a wrong without a remedy.” This is incorrect. Without a demonstration of prejudice, there is no ineffectiveness. Commonwealth v. Pierce, supra. In such a case, there is no wrong to be remedied.

      . Appellant cites two obvious typographical errors in the trial court’s opinion for the proposition that Judge Jackson concedes he was partial in trying appellant's case. We are not convinced by this argument.

      . At the suppression hearing, Detective Devlin stated that appellant was taken to the hospital because he complained about an injury to his arm, that the medical treatment was obtained at approximately 4:20 a.m., and that appellant’s statement was not taken until he returned from the hospital at approximately 6:20 a.m. Id. at 73.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    581 A.2d 619
    Clarence D. NEISH, Appellant, v. BEAVER NEWSPAPERS, INC., Trading as the Beaver County Times, a Corporation, and Leonard R. Brown, Rena A. Papale and Eugene G. Tabacchi, Individuals, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1990.
    Filed Oct. 15, 1990.

      Thomas W. Minett, Asst. Dist. Atty., Ellwood City, for appellant.
    Scott E. Henderson, Pittsburgh, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Beaver County granting the Appellees’ motion for summary judgment against the Appellant, Clarence D. Neish. We affirm.

A review of the motion for summary judgment is governed by Pa.R.Civ.P. 1035 which, in pertinent part, provides:

... The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Additionally, in reviewing a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-moving party. Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1982). And, lastly, summary judgment is to be granted only in the clearest of cases, where the right is clear and free from doubt. Kotwaskiski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969).

During a nine-week period in 1984, the Beaver County Times published five news articles and an editorial containing, according to the Appellant, “false statements and passages directed at him that he alleges to be capable of defamatory meaning and that [the Appellees] invaded his privacy by placing him in a false light, all of which forced him to resign his solicitorship [for the borough of Aliquippa].” (See Appellant’s Brief at 6).

More particularly, the Appellant filed a five-count complaint alleging defamation (Count I), invasion of privacy-false light (Count II) and interference with a contract with a third party (Count III). Counts IV and V, having been removed from our consideration by the Appellant, need not be discussed in recounting the facts necessary to our ruling.

After the presentment of amendments, answers and submission to discovery, the Appellees filed a motion for summary judgment. The motion was granted and is challenged on appeal on four grounds, the first two of which are similar in that each claims that the trial court erred in determining that the complained-of publications were incapable of a defamatory meaning.

As written quite aptly by the trial court:

Under Pennsylvania law, “a communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement (Second) of Torts § 559 (1977); Wecht v. PG Publishing Company, 353 Pa.Super. 493, 510 A.2d 769 (1986). In bringing an action for defamation, the plaintiff must first prove “[t]he defamatory character of the communication.” 42 Pa.C.S. § 8343(a)(1). It is for the court in the first instance to determine, as a matter of law, whether the challenged publication is capable of a defamatory meaning. Thomas Merton Center v. Rockwell International Corporation, 497 Pa. 460, 442 A.2d 213 (1981). “If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial.” Merton, 497 Pa. 464-4[6]5 [442 A.2d 213]. See also Sarkees v. Warner-West Corporation, 349 Pa. 365, 37 A.2d 544 (1944); Kernick v. Dardanell Press, 428 Pa. 288, 236 A.2d 191 (1967); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). Finally, “[i]f the publication complained of is not in fact libelous, it cannot be made so by an innuendo which puts an unfair and forced construction on the interpretation of the publication.” Sarkees, Supra 349 Pa. at 369, 37 A.2d at 546, cited and followed in Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962).

(Trial Court Opinion at 3) Within such a framework, we have examined the five articles and one editorial claimed by the Appellant to be defamatory. We are in agreement with the trial court’s legal conclusion that the publications, although “annoying or embarrassing”, are not libelous. To hold so would require, as mentioned by the trial court, an “extraordinary leap of logic”'.

To explicate, the September 25, 1984, story, “Aliquippa rehires Neish as solicitor”, disclosed how the Aliquippa council came to “appoint[ing]”, by a vote of 4-3, Neish as solicitor for the remainder of the year. The article discussed the views of the dissenting members of council to the Appellant’s appointment, those who “urged the merits of retaining Neish” and how the Appellant “served as co-solicitor at no charge.”

The second story was printed on September 27, 1984, and had the caption: “New Aliquippa ordinances waiting for some action”. In the body of the article was discussed the status of two local ordinances, the implementation of which was unknown by council. The question over the enforcement of such ordinances was attributed to the resignation of the borough solicitor and hiring of the Appellant only three days before that day’s meeting.

It was mentioned in the September 27th story how the Appellant had told a member of council his belief that ordinances were already in place covering the subject of which inquiry was being made by council. Yet, it was noted that the Appellant’s absence from the meeting prevented a resolution of the discussion.

In a report dated October 16,1984, the Times printed that the Appellant had notified Aliquippa council that, in order to avoid being “fair game for the Times ”, he would render his opinions in writing and deal with residents’ questions privately after council meetings to “protect himself from being misquoted.” This was in letter form, which also recounted to council how the Appellant had contacted the executive editor of the Times to print corrections on matters concerning him. The Times refused to do so. Further, the Times reproduced, in its entirety, the letter written to the executive editor listing the alleged erroneous items printed and the corresponding true version of what transpired.

In a fourth article, dated November 28, 1984, and bearing the legion: “Charge of illegality raised in Aliquippa”, it was written how the mayor challenged the council’s appointment of a particular firm as auditor without having a two-third’s majority vote as mandated by the borough code. It was reported further that the Appellant was not present at the meeting. However, it was recounted that “a colleague sitting in for” the Appellant indicated speaking with Neish on this subject and being advised that the appointment was proper as premised upon various sections of the borough code. The article continued by remarking that the appellant had not advised the mayor to the contrary in a phone conversation, and, in fact, had written a legal opinion supportive of such an appointment. This opinion had been read by council. As a result, the question of the auditing firm’s retention was brought to a close by the president of council, who indicated he was satisfied with the answer given.

The last news article in question was dated November 30, 1984, and was captioned: “Aliquippa implements loitering, drinking laws”. The by-line read: “Rena A. Papale”, the staff member who had written the previous articles for the Times. She recounted how council decided to remove an attorney from a lawsuit concerning the water authority and retaining Attorney Tom Minnett instead. Minnett “sat in on the meeting in the absence” of the Appellant. This caused one member of council to state her displeasure with the Appellant’s absence and his failure to appear at a public meeting of council since his appointment. As a result, she recommended his removal. Appellant, by a vote of 4-3, was retained as solicitor.

The final complained-of article appeared in the October 18, 1984, edition of the Times in the “Our Opinion” section under the verbiage: “Public service must be open”. The editorial gave the newspaper’s view of the Appellant’s advice to borough council that “he would not attend private council caucus sessions nor offer verbal legal opinions at public meetings.” The newspaper questioned whether the people of Aliquippa were being “short-chang[ed]” if council would agree to the Appellant’s terms of employment; Also, it was written that council should replace the Appellant with someone who would “answer their questions where and when they [we]re asked.”

The Appellant’s proposal to council was characterized as “thumbpng] his nose” at council.

It is beyond peradventure that it is the trial court’s responsibility to determine, in the first instance, whether a publication is capable of a defamatory meaning. If such not be the case, then “there is no reason for the matter to proceed to trial.” Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 90, 546 A.2d 1168, 1171 (1988) (Citations omitted).

In determining whether a newspaper article is defamatory, “the trial court must decide whether it can reasonably be construed to have the libelous meaning ascribed to it by the complaining party.” Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 250-51, 482 A.2d 266, 269 (1984) (Citations omitted). Our Supreme Court has explained:

The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that other people are likely to attribute to them.

Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899, 907 (1971) (Citation omitted); see also Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986).

With the foregoing in mind, we find that the newspaper articles and editorial are not capable of defamatory meaning. For example, the September 25th article merely gave an accounting of the Appellant’s hiring by council as solicitor for the borough of Aliquippa, the discussion that ensued prior to his appointment and the divergent views of council members (one pro, one con) with respect to the merits of retaining Neish.

The September 27th story, relating the uncertainty that pervaded council as to the effectuation of loitering and open bag ordinances, is no more defamatory than the initial article.

We fail to discern how reference to the solicitor’s absence from a council meeting, and the mentioning of a member of council being advised by Neish that he “believe[d] an ordinance already exist[ed] covering those laws” at issue, can be construed as defamatory.

The third article, dated October 16th, not only attributed the Appellant with intentions of refraining from engaging in private caucus meetings and refusing to offer verbal legal opinions, but council’s agreement to such terms as a condition to retaining the Appellant as solicitor also was reported as passing by a 4-3 vote.

Likewise, the October 16th report reproduced a letter written by the Appellant to the newspaper reconstructing what he considered to be an accurate account of what took place at a council meeting, which version was at odds with previous reports on the topic of the Appellant’s solicitor-ship.

As for the November 28th story of alleged “illegality” in Aliquippa, it merely pointed out the mayor’s belief that council’s appointment of an auditing firm had been done inconsistent with the borough’s code. The only reason the Appellant’s name was mentioned was in the context of assigning to him the statement that there had been no violation of the borough’s code in securing the auditing services.

Just as innocuous is the November 30th story appearing in the Times, which attributed a member of council with being “irked” over the Appellant’s absence from meetings and billing the borough for services beyond the amount paid to him as a salary. For this, a motion was made and defeated to have the Appellant removed as solicitor, and the president of council came to the appellant’s defense by saying that “the bill was to cover the transition period between solicitors, and that he [was] satisfied with the service the borough was being provided.”

We find no evidence in any of the stories reported linking them to a defamation of the Appellant’s character. Moreover, the accounts were of events which transpired at a forum open to the public. “As such, the publication^] by the newspaper satisfied concerns of informing the public and prompting discussion of governmental affairs which the First Amendment was written to protect.” Larsen v. Philadelphia Newspapers, Inc., 375 Pa.Super. 66, 72, 543 A.2d 1181, 1185 (1988), allocatur denied.

The last of the articles appeared in the “Opinion” portion of the newspaper as an “editorial” questioning the Appellant’s insistence in discharging his duties as solicitor only in written form to minimize the likelihood of being misquoted in the newspaper. A continuation of this proposed practice was considered not to be in the public’s best interest, and the author suggested that the Appellant reconsider such a posture or be replaced by council.

The editorial, although containing statements and attributing conduct to the Appellant which might be viewed as annoying and embarrassing, is not tantamount to defamation. It was, instead, the presentment of a position by the newspaper, premised upon the Appellant’s posturing to avoid negative publicity.

The Appellant, himself a public figure, should be cognizant of the scrutiny given to officials by the news media. Merely because an official is not pleased with the reporting done by a newspaper or because he might become the object of editorial discussion does not entitle him to assail the printed word under the guise of defamation. See Salerno, supra; see also Larsen, supra.

The remaining two issues to be addressed were not discussed by the trial court in its opinion to us. Nonetheless, to avoid a needless remand for a supplementation of the court’s opinion, we find that the record is sufficiently complete to afford us the opportunity to respond to the last two claims of the Appellant.

In the second protestation by the Appellant, he alleges court error in sustaining the Appellees’ summary judgment motion to Count II (Invasion of Right of Privacy: False Light).

It is beyond question that the tort of invasion of privacy does exist in this Commonwealth. See Vogel v. W.T Grant Co., 458 Pa. 124, 327 A.2d 133 (1974). As stated on this cause of action by the en banc Court in Larsen, supra,

... Superior Court has adopted the definition of the tort of invasion of privacy promulgated by the Restatement (Second) of Torts §§ 652B-E. Moreover, it has been observed that the cause of action for invasion of privacy is actually comprised of four analytically distinct torts: 1) intrusion upon seclusion, 2) appropriation of name or likeness, 3) publicity given to private life, and 4) publicity placing a person in false light.
Under Section 652E of the Restatement (Second) of Torts, the tort is defined as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
As is so clearly stated in Section 652E, a publication is actionable if it is not true, is highly offensive to a reasonable person and is publicized with knowledge or in reckless disregard of its falsity. See Comments a, c & d. Further, to constitute a tortious invasion of privacy an act (publication) must “ ‘cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ”

375 Pa.Super. at 81-82, 543 A.2d at 1188 (Citations omitted).

We do not find, from our reading of the record, that the Appellant has established that he has been placed in a false light by the Appellees or that the publications would have been highly offensive to a reasonable person. Compare Martin v. Municipal Publications, 510 F.Supp. 255 (E.D.Pa.1981). Additionally, the Appellant's stature in the community as a public figure resulted in a relinquishment of insulation from scrutiny of his public affairs. See Harris by Harris v. Easton Publication Co. 335 Pa.Super. 141, 483 A.2d 1377 (1984); Aquino v. Bulletin Co., 190 Pa.Super. 528, 154 A.2d 422 (1959); Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 125 A.2d 644 (1956). Given such a scenario, the newspaper’s account of what transpired at Aliquippa council meetings was to be expected and does not expose the newspaper to the allegations of “false light” charges by the Appellant

The final assertion of the Appellant concerns the contention that the Appellees interfered with his contract of employment with the Aliquippa council as its solicitor.

To establish a claim of intentional interference with a contract, one needs to prove: (1) the existence of a contractual relationship; (2) an intent on the part of the Defendants to harm the Plaintiff by interfering with those contractual relations; (3) absence of privilege or justification for the interference; and (4) damages. R.P. Russo Contractors & Engineers, Inc. v. C.J. Pettinato Realty & Development, Inc., 334 Pa.Super. 72, 482 A.2d 1086 (1984).

We find the remarks made by the Appellees in their brief to us at pages 51 and 52 to be an accurate response to the issue raised; to-wit:

First, the Times’ conduct in reporting and commenting on the actions of a public figure was privileged. Second, even if Neish could establish the lack of privilege or justification, Neish had the burden to prove that the Times proximately caused the termination of his contractual relationship with Aliquippa. By Neish’s own admission, municipal solicitors are frequently terminated and it would not be unusual for Neish to be “out of a job again.” (Neish Dep. at 140-41, S.R. 127b-128b). In fact, Neish resigned from Council, thus terminating his contractual relationship himself. (Neish Dep. at 33, S.R. 33b). The editorial did not tell Council anything it did not already know from Neish’s own conduct. Neish has not proffered any evidence that the Times had any contact with Council except for its publication of an editorial. Permitting a claim such as Neish’s would have an impermissible chilling effect on the First Amendment rights of a newspaper to comment on issues of public concern.

We would echo the sentiments of the Appellees in that they had the right to publish what occurred at the council meetings. It did so in this instance, and there was no justification to permit this lawsuit to be tried before a jury given the evidence of record supportive of the grant of the motion for summary judgment.

Order affirmed.

      . The Appellees, named in the Appellant’s suit, include Beaver Newspaper, Inc., t/a the Beaver County Times, its executive editor (Leonard B. Brown), a reporter (Rena A. Papale) and the editorial page editor (Eugene G. Tabacchi).

      . We find that the editorial discourse about the Appellant was the expression of an “opinion” by the editor of the Times. The editorial does not imply an allegation of undisclosed defamatory facts as the basis for the opinion. Restatement (Second) of Torts, § 566. Consequently, the writing is not actionable as defaming the Appellant. See Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986).


text:
    581 A.2d 625
    Daniel VARGO, Appellant, v. Christina HUNT, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1990.
    Filed Oct. 16, 1990.
    Raymond Radakovich, Pittsburgh, for appellant.

      Louis J. Stack, Meadville, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from an order granting the Defendant’s (Christina Hunt’s) motion for summary judgment. We affirm.

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474, 475 (1990) . In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Viewed in such a light, the record discloses that a writ of summons was filed and followed by the entry of a rule and the presentment of a complaint in which the Plaintiff (Daniel Vargo) alleged that the Defendant had defamed him by accusing him, falsely, of “cheating] on a[n] academic examination in violation of the Allegheny College Honor Code.” Paragraph 4. “As a result of Defendant’s false, scandalous, malicious and defamatory” report of her observations, a hearing was conducted before the Allegheny College Judicial Board. The recommendation of the Board was that the Plaintiff receive a failing grade in the course, be suspended from the College for one term, and, upon his return, be placed on probation for a period of one term.

In her Answer and New Matter, the Defendant contended that she merely reported what she “perceived to be an act of dishonesty in academic work to the Honor Committee when she observed Plaintiff looking in the direction of a study sheet [situated at his feet] on the floor during [an accounting] examination.” Paragraph 16. She averred that she acted accordingly in complying with the Honor Code at the College, as all students at the College were required to do. “Failure to report [such an observation would be considered] a breach of the Allegheny College Academic Honor Program and [would have] constitute^] an infraction of the Honor Code.” Paragraph 15. The Defendant went on to assert that all students matriculating into the College were cognizant of the Honor Code, and the Plaintiff, in fact, signed his examination, as all students were required to do, indicating that he was “[p]ledg[ing]” to adhere to the Honor Code in the completion of his examination. Paragraph 23.

The Plaintiff exercised his right, pursuant to the Allegheny College Judicial System handbook, to appeal the Board’s decision to the President of Allegheny College. Once the ruling was upheld, a civil suit was instituted for defamation by the Plaintiff in the Court of Common Pleas of Crawford County.

After the submission of various pleadings by the parties, the court below granted the Defendant’s motion for summary judgment. The court found that, as a matter of law, the Plaintiff “consented to the administrative procedures and knew or should have known of the responsibility of students under the [Honor] Code; that is, if a student believed a fellow student to be in violation [of the Honor Code], the observing student had a duty to inform the Honor Committee.” Lower Court Opinion at 4-5 (Emphasis in Original). Additionally, the statements of the Defendant were found by the court to be “conditionally privileged” in that disclosure of what she observed was necessary to preserve the integrity of the academic process through the Honor Code, and such an interest far outweighed the possible risk of damage to the Plaintiffs reputation. Id. at 5. No abuse of the conditional privilege was found to have occurred. Thereafter, the Defendant’s motion for summary judgment was granted, and this appeal was perfected to question the propriety of the order entered.

The first issue to be addressed reads:

Whether the lower court erred in determining that the Defendant’s defamatory remarks were conditionally priviJeged[?]

We begin our assessment of the Plaintiff’s complaint with the observation that:

“ ‘[a]n occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.’ ”

Rankin v. Phillipe, 206 Pa.Super. 27, 30, 211 A.2d 56, 58 (1965) (Citation omitted). Accord Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583, 587-588 (1980).

Furthermore, proper occasions giving rise to a conditional privilege exist when: (1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third person is involved; or (3) a recognized interest of the public is involved. See Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976).

We find that a question of privilege was raised by the facts that were pleaded, and, clearly, a proper occasion resulting in a conditional privilege was present in this case. For example, under the Honor Code, the Defendant had an obligation to report her observations of the Plaintiff during the accounting test. Conversely, the Honor Code Committee and the College Judicial Board had a right to be made aware of the Plaintiffs conduct during the examination to effectuate the principles espoused in “The Academic Honor Program” at Allegheny College, i.e., integrity and honesty in academia. Principles which the Plaintiff became aware of upon his receipt, just as did all in-coming freshmen to Allegheny College, of the Honor Code handbook, which reads in pertinent part that:

THE ACADEMIC HONOR PROGRAM at Allegheny College is designed to promote individual responsibility and integrity in academic affairs and to develop an atmosphere conducive to serious independent scholarship. The Honor program operates under the following Honor Code:
ARTICLE I
The Honor Program shall apply to all work submitted for academic credit or to meet non-credit requirements for graduation at Allegheny. This includes all work done in class (examinations, quizzes and laboratory work), all papers, and any other material so designated by the instructor. All students who have enrolled in the College will work under the Honor program. The College assumes that the integrity of each student and of the student body as a whole will be upheld. A primary responsibility of each student of the College is the maintenance of honesty in one’s own academic work. In addition, it is the moral obligation of each student to help maintain the integrity of the entire college community.
ARTICLE II
By virtue of matriculation in the College, each student acknowledges the following:
I hereby recognize and pledge to fulfill my responsibilities, as defined in the Honor Code, and to maintain the integrity of both myself and the College community as a whole.
ARTICLE III
Section 1: If one student observes another committing what appears to be an act of dishonesty in academic work it is the observer’s responsibility to take the appropriate action. Students are encouraged to inform either the instructor or a member of the Honor Committee. However, whatever action the observer takes must fulfill the obligation to uphold the integrity of the college community. Failure to do so is as injurious to the honor of the college community as is the observed act of dishonesty and constitutes an infraction of the Honor Code.
Section 2: The following practices are considered to be violations of the Honor Code in examinations, tests, quizzes, and in laboratory and computing exercises: any attempt to receive or to give unauthorized assistance from written, printed or recorded aids, from any person, or from another’s work.

Also, on the first page of the examination for which the Plaintiff was charged with using “printed aids”, he executed his signature to acknowledge that he was aware of the “pledge” not to act in a “dishonest” manner in performing “academic work”.

Surely, as noted by the lower court, “the integrity of the academic process of the College” was an interest that impacted upon the students, faculty and administration alike, and this interest merited preservation through the “self-policing” eye of students in reporting “perceived” violations of the Honor Code. Accordingly, the College community had a “common interest” in continuing a policy of “honesty” in the classroom, lest its reputation for “integrity” and graduating students possessing academic excellence and honesty be undermined in the public and private sector. And the Defendant’s report to the Honor Committee of what she “perceived” the Plaintiff doing while taking an examination was merely a fulfillment of her “obligation” under the same Honor Code the Plaintiff agreed to uphold upon admission to Allegheny College.

Publication could only have been excessive if it had been made to persons who did not have a common interest in the events that unfolded, and no such publication was made here. Only interested parties were made privy to the observations of the Defendant and the consequences flowing therefrom, i.e., the Honor Committee (to whom the initial observations by the Defendant were communicated), the College Judicial Board (made up of an equal number of students and faculty who heard the case and made recommendations as to disciplinary action to be taken), the Dean of Students (who advised the Plaintiff of the recommendations of the Board and his right to appeal the suspension) and the College President (who reviewed the Plaintiffs appeal and sustained the Board’s recommendations).

The evidence presented to the court below is supportive of labelling the Defendant’s conduct as “conditionally privileged”. As such, in the absence of the Plaintiff establishing an abuse of the conditional privilege, we hold that the court acted properly in granting the motion for summary judgment. See Rankin, supra.

Judgment affirmed.

      . The lower court used "Defendant” as the pronoun preceding the quoted material. We find, given the sentence structure, the court meant to write "Plaintiff”.

      . A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him, Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962), and necessarily involves the idea of disgrace, Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427, 389 A.2d 1197 (1987). Although not found by the lower court to be defamatory, the matter being a question of law to be determined initially by the court below, one can fairly and reasonably construe the suspension of the Plaintiff from Allegheny College for cheating, receiving a failing grade and being placed on probation after sitting out a semester as "involv[ing] the idea of disgrace” amounting to libelous behavior.

      . The students in the examination room with the Plaintiff and the Defendant appeared before the Board. Almost all were supportive of the Plaintiffs account that he did not engage in surreptitious activity to secure answers for the test. Nonetheless, from the recommendations made, it appears that the Plaintiff was not persuasive as to his innocence.

      . Inasmuch as we hold that sufficient evidence was presented to substantiate the court’s "conditional privilege" finding, we need not delve into the question of whether the Plaintiff "consented" to be bound by the Honor Code and the procedures promulgated thereunder to resolve allegations of a violation thereof.
      Also, of necessity, we conclude that there existed no genuine issue of material fact which needed to be resolved. See Pa.R.Civ.P. 1035.


author: JOHNSON, Judge:

text:
    581 A.2d 629
    FIRST FIDELITY BANK, N.A., NEW JERSEY, Formerly known as First National Bank of New Jersey, a National Banking Association, Appellant, v. STANDARD MACHINE & EQUIPMENT COMPANY, a Pennsylvania Corporation, Frank Carlow and Michael Carlow.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Oct. 17, 1990.
    Petition for Allowance of Appeal Denied March 15, 1991.

      Wayne H. Port, Uniontown, for appellant.

      William E. Duffield, Uniontown, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from an order granting defendants’ petition to vacate a New Jersey judgment that had been duly entered against them in Pennsylvania. We are asked to determine whether New Jersey’s exercise of jurisdiction over the defendants comported with constitutionally required due process. Finding that New Jersey’s exercise of jurisdiction was proper, we reverse.

Defendants Standard Machine & Equipment Company and Frank Carlow and Michael Carlow (collectively referred to hereinafter as Standard) entered into a lease agreement on January 16, 1984 under which Standard leased computer equipment from Ceres Capital Corporation. The leased equipment is located in Uniontown, Pennsylvania, Standard’s place of business. Ceres Capital Corporation is a New York corporation.

On the same day the parties executed, as part of the lease agreement, an individually typed (not a form) agreement to assign the lease to the entity now called First Fidelity Bank, N.A., New Jersey, which at the time of this transaction was First National State Bank, New Jersey (First Bank). Frank Carlow executed this agreement on behalf of Standard. Under the agreement:

The Company [Standard] hereby acknowledges and consents to the assignment by Lessor to First National State Bank ... of Lessor’s estate, right, title interest; claim and demand in, to and under the Lease, and the rental payments due under the Lease____
The Company [Standard] agrees so long as [First Bank] has not violated the Company’s right of quiet enjoyment (i) to remit and deliver all Monies assigned to [First Bank] as indicated above directly to [First Bank].

Lease Agreement of January 16, 1984. Standard further agreed to deliver all communications to First Bank in New Jersey, agreed not to modify or terminate the lease without First Bank’s consent, agreed that Standard’s remedies for breach were solely against First Bank, and agreed that insurance proceeds were to be paid to First Bank, pursuant to the original lease agreement.

By letter of February 29, 1984, First Bank advised Standard that the assignment had been effected pursuant to the consent to assignment agreement. The letter reminded Standard that, under the agreement, Standard was required to name First Bank, assignee, loss payee and/or co-insured under its liability and casualty policies. As requested by First Bank, Standard signed a copy of the letter (signature dated 3/6/84) and returned the copy to First Bank. This return copy was date-stamped as received by First Bank on March 9, 1984. On March 13, 1990 First Bank filed a financing statement with the Secretary of the Commonwealth of Pennsylvania perfecting its security interest in the equipment pursuant to the Uniform Commercial Code, 13 Pa.C.S. §§ 9302 and 9401 et seq. The purpose of this filing was to reserve title to the creditor against possible future creditors of Standard. Rodi Boat Co. v. Provident Tradesmens Bank and Trust Company, 236 F.Supp. 935 (E.D.Pa.1964), affirmed 339 F.2d 259 (3d Cir.1964).

Standard sent payments to First Bank in New Jersey but in early 1987 Standard ceased making payments. First Bank then instituted an action in New Jersey against Standard. Standard was personally served with process in Pennsylvania. Standard made no appearance, and on June 15, 1987, the New Jersey court entered a default judgment against Standard. The judgment was transferred to Fayette County, Pennsylvania on September 2, 1987. Standard collaterally attacked the New Jersey judgment by petitioning the Pennsylvania court to strike the judgment on the grounds that New Jersey lacked personal jurisdiction over Standard and thus could not have rendered judgment there. First Bank filed an answer and new matter on Oct. 27,1987, after which Standard did nothing. First Bank petitioned the court to order Standard to proceed under Pa.R.C.P. 209. Finally, on February 2, 1989 the court placed the case on the argument docket and ordered briefs filed. On January 11, 1990 the court granted Standard’s petition to vacate the judgment. In an opinion accompanying the order, the court explained that Standard’s contacts with New Jersey were insufficient to establish personal jurisdiction, thus rendering the New Jersey judgment invalid. First Bank appealed.

First Bank argues that, under New Jersey law establishing the basis for personal jurisdiction in that state, the trial court’s conclusion was legally incorrect. We agree and reverse. First we will set this action in its legal context, the Pennsylvania Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306. The act codifies the constitutional obligation of each state to give full faith and credit to judgments rendered in other states. U.S. Const, art. IV, § 1. The provisions of the act have been interpreted to mean that any foreign judgment properly filed in Pennsylvania must be accorded full faith and credit unless there is a particular overriding reason that requires us to deny full faith and credit to the judgment. Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 564 A.2d 1299 (1989).

It is established practice for Pennsylvania to entertain an attack on a foreign judgment even though the defendant did not appear in that forum to defend on the basis of lack of personal jurisdiction. While the party challenging the foreign judgment may not attack the transferred judgment by raising any and all defenses (a judgment is entitled to full faith and credit in the transferee state even though the underlying claim would not be enforced in that forum, Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 361 A.2d 660 (1976)), the defense of lack of personal jurisdiction over the defendant by the judgment-rendering state is a situation under which the full faith and credit principle has no effect. If this situation exists, the subsequent Pennsylvania judgment is properly stricken. Tandy, supra; Everson v. Everson, 264 Pa.Super. 563, 400 A.2d 887 (1979), affirmed and order modified on other grounds, 494 Pa. 348, 431 A.2d 889 (1981).

We now reach the merits, whether New Jersey had jurisdiction over First Bank’s action against Standard. To decide this question, we must look to the law of New Jersey. Tandy, supra; Bartholomew Associates, Inc. v. Townhome, Inc., 270 Pa.Super. 95, 410 A.2d 1266 (1979). As personal jurisdiction is a question of federal constitutional law arising from the due process clause, New Jersey’s analysis is guided by the decisions of the Supreme Court of the United States on this subject:

It is clear that New Jersey has exercised its jurisdiction over nonresidents to the outermost limit permitted by the United States Constitution (citations omitted). Due process does not require that a defendant have a corporate or individual presence in the forum in order to be subject to an in personam jurisdiction, but merely that “he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (citation omitted). The defendant’s contacts with the forum state must be such that “he should reasonably anticipate being haled into court there.” World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). Defendant is deemed to have notice that it may be subject to suit when it “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958).

Dave’s Trash Removal v. Charm City, 214 N.J.Super. 497, 500-501, 520 A.2d 415, 417 (1987). As articulated by the Supreme Court of New Jersey, this boils down to a two-part test having as its two central aspects “minimum contacts” and “fair play and substantial justice.” Lebel v. Everglades Marina, 115 N.J. 317, 558 A.2d 1252 (1989).

If the cause of action relates directly to the specific contacts at issue, and if the court seeks to subject the defendants to its jurisdiction only with regard to this claim, as in this case, then it is said to be a specific jurisdiction situation. The inquiry in a specific jurisdiction case focuses on “the relationship among the defendant, the forum, and the litigation.” Lebel, 115 N.J. at 323, 558 A.2d at 1255, quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683, 698 (1977). With regard to specific jurisdiction, the minimum contacts requirement is satisfied if the contacts with the forum resulted from the defendant’s purposeful conduct and not the unilateral activities of the plaintiff, as a result of which he could reasonably anticipate being haled into court there. Lebel, 115 N.J. at 320, 558 A.2d at 1255, citing World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 567, 62 L.Ed.2d at 501.

Cases in which a contract is the basis of the cause of action constitute a particular subset of special jurisdiction cases. It is sufficient under the United States Constitution for purposes of due process that the suit be based on a contract having substantial connection with the forum state, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), cited in Govan v. Trade Bank & Trust Company, 109 N.J.Super. 271, 263 A.2d 146 (1970), and jurisdiction is proper where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum state. Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183-2184, 85 L.Ed.2d 528, 542 (1985), citing McGee, 355 U.S. at 223, 78 S.Ct. at 201, 2 L.Ed.2d at 226. In Burger King the Supreme Court reasoned that the sufficiency of the connection between the contract and the forum should not be decided on the basis of traditional mechanical tests:

[W]e have emphasized the need for a “highly realistic” approach that recognizes that a “contract” is “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction” (citation omitted). It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing— that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

Burger King, 471 U.S. at 479, 105 S.Ct. at 2185, 85 L.Ed.2d at 545.

In the present case, Standard is a business to which we can impute a reasonable degree of sophistication. Moreover, this is not a case in which a customer, whether business or individual consumer, has returned a product and has stopped further payments, as in Tandy, supra. The Tandy agreement was a form lease. Not so in the present case, in which an integral and specifically bargained-for part of the agreement was that First Bank, a New Jersey entity, would immediately become the assignee of the equipment lease and that First Bank would assume all rights and duties under the equipment lease. Standard retained the equipment upon which it had ceased making payments, equipment in which Standard should have reasonably known First Bank to have a security interest. We conclude that by this course of action Standard purposely created contacts with New Jersey. The contacts, consisting of the prior negotiations, contemplated future consequences and the parties’ actual course of dealing flowing from the contract, rather than being random, fortuitous or attenuated, were sufficient to satisfy the minimum contacts prong of the due process analysis.

Having decided that Standard purposefully established minimum contacts within New Jersey, we now may consider other factors to determine whether, under New Jersey law, the state’s exercise of jurisdiction over Standard comports with “fair play and substantial justice.” Burger King, 471 U.S. at 476, 105 S.Ct. at 2184, 85 L.Ed.2d at 543, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102. These factors include the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. Burger King, 471 U.S. at 477, 105 S.Ct. at 2184, 85 L.Ed.2d at 543, citing World-Wide Volkswagen. We must also keep in mind that when a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Burger King, 471 U.S. at 477, 105 S.Ct. at 2184-2185, 85 L.Ed.2d at 544.

Standard fails to establish a compelling case that additional considerations render New Jersey’s exercise of jurisdiction over itself unreasonable. Standard argues only that minimum contacts were lacking, a contention we have rejected. Standard fails to set forth any reasons why litigation in New Jersey would have been unduly burdensome. New Jersey courts have, however, spoken to New Jersey’s interest in cases such as this one, in which a New Jersey entity is a material participant in a business deal consummated in a neighboring state but having a substantial effect in New Jersey: Unicon Investments v. Fisco, Inc., 137 N.J.Super. 395, 403, 349 A.2d 117, 122 (1975).

In New Jersey there are special problems in commercial transactions since this State is situated in a commercial corridor between highly developed areas of New York and Pennsylvania, both of which contain the principal offices of many large corporations maintaining subsidiaries in our State. The business of New Jersey requires that our many merchants, suppliers and contractors deal on a guaranteed basis with often thinly capitalized subsidiaries of large out-of-state corporations. On a policy basis also, this court finds that such jurisdiction as may be based upon out-of-state guarantees of New Jersey leases, or like transactions, should be upheld, where traditional notions of fair play and substantial justice are not offended [by other factors].

In Unicon, the court found that New Jersey’s exercise of jurisdiction over a Pennsylvania defendant to collect on its general guarantee of its subsidiary’s obligations under a lease of New Jersey realty did not violate notions of fair play and substantial justice. The court pointed out, based upon the above rationale, that New Jersey does not require a physical act to be done within the state, nor does it require the transaction of business in New Jersey. That the present case involves an assignee bank rather than a corporate subsidiary renders the above rationale no less applicable. For instance, in another similar case, Govan v. Trade Bank & Trust Company, supra, the court found that New Jersey could properly exercise jurisdiction where non-residents signed a promissory note payable to a New Jersey bank. As the Burger King court wrote:

A State generally has a “manifest interest” in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors (citations omitted). Moreover, where individuals “purposefully derive” benefit from their interstate activities, (citation omitted), it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because “modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,” it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity, (citation omitted).

Burger King, 471 U.S. at 473-474, 105 S.Ct. at 2182-2183, 85 L.Ed.2d at 541. See also Alchemie International, Inc. v. Metal World, Inc., 523 F.Supp. 1039 (D.N.J.1981) for a discussion of the state interest factor.

In support of its position that New Jersey improperly exercised jurisdiction, Standard relies upon Tandy Computer Leasing v. DeMarco, supra, in which, as in this case, the defendant challenged, on the basis that the forum (Texas) lacked personal jurisdiction, the judgment duly transferred to Pennsylvania. We interpreted Texas law in light of the decisions of the United States Supreme Court regarding minimum contacts and agreed that Texas had overreached. In the present case, the facts establish minimum contacts, and Standard has produced no evidence showing how it would be unduly burdened by litigating this claim in New Jersey. We interpret New Jersey law in light of these decisions and find ample support for our conclusion that New Jersey’s exercise of jurisdiction over Standard was based upon the constitutional requisites of minimum contacts and fair play and substantial justice. We conclude that New Jersey properly exercised jurisdiction over Standard and that the duly rendered judgment against Standard is valid and must be accorded full faith and credit in this Commonwealth. Hence, we reverse the order vacating the judgment.

Order vacated. Case remanded for reinstatement and execution on the judgment. Jurisdiction relinquished.


author: JOHNSON, Judge.

text:
    581 A.2d 634
    COMMONWEALTH of Pennsylvania v. Samuel FUCCI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 22, 1990.
    Filed Oct. 17, 1990.

      William E. Stockey, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

This is an appeal from the order extraditing Samuel Fucci to Tennessee to face criminal charges for failure to pay child support. We must interpret language in the Revised Uniform Reciprocal Enforcement of Support Act that allows extradition under a “substantially similar law.” Deciding that this language refers to a substantially similar reciprocal law, we affirm.

On August 10, 1989, the Governor of Tennessee requested extradition of Samuel Fucci pursuant to the Revised Uniform Reciprocal Enforcement of Support Act, October 30, 1985, P.L. 264, No. 66, § 1, codified at 23 Pa.C.S. §§ 4501-4540 (RURESA) for the Tennessee crime of Failure to Pay Child Support in Violation of a Court Order, Tenn. Code Ann. § 39-4-113. On August 24, 1989 the Honorable Robert Casey, Governor of Pennsylvania, executed a Governor’s Warrant. On December 5, 1989, the Honorable Robert E. Dauer held an extradition hearing, following which Judge Dauer signed the order to extradite Fucci. Fucci neither requested time to file, nor did he file a writ of habeas corpus. Fucci now appeals to this Court and argues that the trial court should not have ordered his extradition because Pennsylvania does not have a crime substantially similar to Tennessee’s crime of failure to pay support in violation of a child support order.

First we will address a threshold issue of extradition procedure. Under RURESA, the Governor may:

(2) surrender on demand by the Governor of another state a person found in this Commonwealth who is charged criminally in that state with failing to provide for the support of any person.
Provisions for extradition of criminals not inconsistent with this chapter apply to the demand even if the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and has not fled therefrom.

23 Pa.C.S. § 4505. This makes two important departures from the Uniform Criminal Extradition Act, July 9, 1976, P.L. 586, No. 142, § 2, codified at 42 Pa.C.S. §§ 9121-9148, under which the person to be extradited is “any person charged in that state with treason, felony or other crime, who had fled from justice and is found in this Commonwealth.” 42 Pa.C.S. § 9123. Notwithstanding this distinction, extradition proceedings under RURESA incorporate the procedural safeguards required by the Uniform Criminal Extradition Act. See Commonwealth ex. rel. Houser v. Seip, 385 Pa. 545, 124 A.2d 110 (1956).

A fundamental procedural safeguard emanating from the constitutional right to habeas corpus, U.S. Const.' art. I, § 9, cl. 2, is that arrestees must be afforded an opportunity to file for a writ of habeas corpus. Commonwealth v. Bell, 222 Pa.Super. 190, 293 A.2d 74 (1972). This procedural right is codified at 42 Pa.C.S. § 9131:

f the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus.

42 Pa.C.S. § 9131. Pursuant to this procedure, we have remanded cases where the trial court has refused to give extensions of time when requested to do so by the defendant. Commonwealth v. Jacobs, 319 Pa.Super. 531, 466 A.2d 671 (1983); Commonwealth v. Bell, supra. In the present case, Fucci did not request an extension of time for the purpose of filing a petition, nor did the court sua sponte inform him of this right. Fucci never argues that he should have been given time to file a habeas petition in which to raise his objections to extradition. Most important, the merits of Fucci’s contentions were addressed in the extradition hearing before Judge Dauer. We conclude that the procedure below was constitutionally sufficient and afforded Fucci full opportunity to challenge his arrest.

We now reach the merits of Fucci’s appeal. Fucci contends that the trial court erred in ordering his extradition because Pennsylvania does not have a “substantially similar law” to Tennessee’s crime of leaving the state and failing to comply with a child support order. Fucci premises his argument upon the erroneous assumption that the “substantially similar law” language in RURESA refers to whether Pennsylvania has a substantially similar criminal statute to the statute under which Tennessee bases its extradition demand. What RURESA requires is that the state demanding extradition must have a substantially similar reciprocal enforcement of support act.

The challenged language appears in the following section: (b) Obligor in this Commonwealth.—If, under a substantially similar law, the Governor of another state makes a demand upon the Governor of this Commonwealth for the surrender of a person charged criminally in that state with failure to provide for the support of a person, the Governor may require any prosecuting attorney to investigate the demand and to report to him whether proceedings for support have been initiated or would be effective.

23 Pa.C.S. § 4506 (emphasis added).

Interpretation of the above-quoted statutory language by itself as well as in conjunction with other sections of the statute employing the same phrase convinces us that “substantially similar law” refers to the requirement of a substantially similar support law containing an extradition clause similar to § 4506. We do not believe that the statutory language refers to a requirement that the extraditing state have a substantially similar criminal law. First, nowhere does RURESA talk about substantially similar criminal laws. Rather, the statute talks about “substantially similar reciprocal law,” as in the following provision from the definition section:

“State.” Includes a state, territory ... and any foreign jurisdiction in which this or a substantially similar reciprocal law is in effect.

23 Pa.C.S. § 4502 (emphasis added). If another state has adopted a law substantially similar to RURESA, then our Governor may surrender an individual to the other state to allow that state to try him under its criminal law. This only makes sense, as the stated purpose of RURESA is “to improve and extend by reciprocal legislation the enforcement of duties of support.” 23 Pa.C.S. § 4501(b). Further, the Construction of Uniform Laws portion of the Statutory Construction Act requires that “[sjtatutes uniform with those of other states shall be interpreted and construed to effect their general purpose to make uniform the laws of those states which enact them.” 1 Pa.C.S. § 1927.

It is significant that Fucci fails to argue that Tennessee does not have a reciprocal enforcement of support law, nor could he properly do so. We may take judicial notice that Tennessee has adopted the Uniform Enforcement of Support Law, Tenn.Code Ann. §§ 36-5-201 to 36-5-229. Commonwealth ex. rel. Houser v. Seip, supra. Fucci does not challenge the facial validity of the extradition warrant. Therefore, if the statutory procedure is followed, and Fucci does not argue that it was not, Pennsylvania may extradite Fucci. For all the foregoing reasons, we affirm the extradition order.

Order affirmed.