author: TAMILIA, Judge: KELLY, Judge,

text:
    577 A.2d 913
    COMMONWEALTH of Pennsylvania, Appellant, v. Norman WILSON.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed July 18, 1990.
    Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellant.

      Caremela R.M. Presogna, Asst. Public Defender, Erie, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the March 21, 1989 Order of court granting appellee’s suppression motion. On September 24, 1988, police officers raided the house belonging to Willy Thompson in Erie, Pennsylvania, pursuant to a search warrant alleging illegal sales of alcoholic beverages and use of the residence as a “speakeasy.” Appellee was one of several people who rented a room in the house. All boarders have a key to the outside door and have use of the common areas, but appellee’s room had two locks for which only he had the keys. During the raid, the officers not only searched the basement where the speakeasy was alleged to be but also conducted a non-consensual search of appellee’s room after kicking in the door. The police seized marijuana, Tussionex and liquor from appellee’s room. The police then charged appellee with two counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act, with intent to deliver and one count of presence or participation in disorderly house prohibited, a summary offense. Appellee filed a motion to suppress the marijuana and Tussionex, which the trial court granted. The Commonwealth timely appealed certifying the effect of granting the suppression motion substantially handicaps its prosecution.

The Commonwealth contends the trial court erred in granting the suppression motion because the search warrant was validly issued. After a thorough review of the record, we agree with the Commonwealth the warrant was validly issued. However, we find the police improperly executed the warrant, and as such, appellee is entitled to have the fruits of the illegal search suppressed.

The United States Supreme Court, in Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72, (1987), established the standard for determining whether a search warrant was properly executed in a case involving facts similar to those in the instant case. In Garrison, police officers obtained and executed a warrant to search Lawrence McWebb and the premises known as 2036 Park Avenue third floor apartment. The third floor was, in fact, divided into two apartments with McWebb occupying one and Garrison occupying the other. At the time of application for the warrant and execution of the warrant, the police reasonably believed there was only one apartment on the third floor. Only after they discovered the contraband did the police realize they were in Garrison’s separate apartment. Thereupon, they immediately concluded the search.

The Garrison Court was called upon to determine if the seizure of contraband from Garrison’s apartment violated the fourth amendment. The Court held the search was proper because the police officers reasonably believed they were searching the premises named in the search warrant— namely McWebb’s apartment—when they seized the contraband, and because upon discovering there were two separate apartments, the police discontinued the search. However, the Court stated:

If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb’s apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.

Id. at 86, 107 S.Ct. at 1018. The Court went on to say:

[T]he validity of the search of respondent’s apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers’ failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb’s apartment and the third floor premises.

Id. at 88, 107 S.Ct. at 1019.

In contrast, the facts of the instant case show the police officers knew appellee rented a room in the house. The Commonwealth concedes appellee told the police officers, prior to the search, he rented a room in the building and indicated which room was his (S.T., 3/21/89, pp. 55, 57, 61; Appellant’s brief, pp. 5-6, 12). The Commonwealth points out that the officers kicked in the door to appellee’s room prior to having this information, but we emphasize the search itself did not take place until after the officers knew it was appellee’s rented room they were about to search. Furthermore, the police officers here did not discontinue their search upon realizing there were separate apartments as did the police officers in Garrison. The facts clearly illustrate the police officers had no objectively understandable and reasonable reasons for not realizing the overbreadth of the warrant upon its execution. As such, we conclude the trial court properly suppressed the evidence.

Order affirmed.

KELLY, J., dissents.

KELLY, Judge,

dissenting:

I respectfully dissent. I find the Majority’s reliance upon Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) misplaced. Moreover, accepting the trial court’s findings of fact, I would still find that the search challenged was within the express authority of the properly issued warrant and that the execution of the warrant was entirely reasonable.

The inferences drawn by the Majority here, regarding the application of Maryland v. Garrison, supra, are grounded entirely upon an extension of dicta, rather than an application of precedent. In Maryland v. Garrison, supra, the Supreme Court held that because the officers did not know that separate apartments existed on the third floor when they executed their warrant, the warrant and its execution were reasonable, hence constitutional. In dicta, the Supreme Court suggested that had the officers known that the warrant was erroneously overbroad (covering a separate apartment of an entirely uninvolved third party), then continued execution of the warrant as to the part of the warrant known to be overbroad would have been unreasonable.

The relevant reasoning of the Supreme Court in Maryland v. Garrison, applied by the majority here, in fact, may be compelling as to the specific circumstances discussed in that case. Nonetheless, the extension of that reasoning to embrace the actual facts of the present case strains that reasoning beyond its bounds.

The pertinent facts of this case are as follows. Acting upon a tip from a confidential informant, Erie Police conducted an investigation as to whether an illegal speakeasy was being operated in a one story wood frame house located at 134 Myrtle Street in Erie, Pennsylvania. A controlled buy of alcohol was made by the confidential informant under the supervision of the investigating officers. Surveillance also confirmed a visitor pattern consistent with the operation of an illegal speakeasy. Because of the nature of the illegal conduct suspected, a night time search warrant for the entire premises was sought and received.

The warrant was executed on Saturday evening, September 24, 1988. To secure the premises, all rooms (including two separately locked bedrooms) were opened by the search team. Cf. Maryland v. Buie, — U.S. -, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The occupants were then confined to the downstairs recreation area (where the principal speakeasy activities had been centered), and the first floor kitchen area.

In the recreation area and in the first floor kitchen area considerable evidence of illegal speakeasy activities was discovered. We note that small amounts of marijuana were found in a refrigerator and on a table in the common areas of the residence, as well.

Two of the individuals arrested in the raid acknowledged that they were the residents of the house, and were taken then to identify which of the locked bedrooms were theirs. Appellee was one of those two, and complains here that even though the warrant to search the house was valid, the search of his separately secured bedroom within the residence was not. The majority agrees. I cannot.

I have no disagreement with the basic proposition that if the police discover that a warrant was drawn so as to mistakenly include the private room of an uninvolved, third party who is a complete stranger to the probable cause set forth in the warrant (as discussed in Maryland v. Garrison), then the police ought not proceed to execute the warrant so as to unreasonably encroach upon the reasonable privacy expectations of that innocent and uninvolved third party. Such, however, was not vaguely the case here.

Here, two tenants shared a single family dwelling in common, with the exception of their separately locked bedrooms. On the premises, a substantial, open, notorious, and continuous criminal speakeasy enterprise was being conducted. When a lawful search warrant for the entire premises was executed and illegal activities were openly discovered in the common areas of the residence, both tenants were physically present in those common areas. Neither appellee nor the other tenant could even plausibly assert innocent and uninvolved third party status in this case. This fact I consider to be critical.

If the illegal activity had been discreet rather than notorious, and had appellee not been engaged in the illegal activity when the warrant was executed, then a plausible case for an application of the dicta in Maryland v. Garrison, might have been presented. However, I cannot believe that Maryland v. Garrison, was intended to impose a requirement that a separate warrant be acquired for every locked door in a residence used to conduct an on-going criminal enterprise like a speakeasy or crack-house. Because, appellee was actively engaged in the substantial, continuous, open, and notorious speakeasy enterprise when the warrant was executed, it was entirely reasonable for the officers to conclude that his bedroom was not separate from, and inaccessible to, the speakeasy enterprise by virtue of the lock on the bedroom door.

The personal effects of visitors fortuitously present when a search warrant is executed constitutionally may be searched if the evidence sought could be secreted in those effects. See Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909 (1988). Visitors themselves may be searched when the totality of circumstances gives rise to a reasonable probability that the visitor may be willing and able to secret the evidence sought on their person. See Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560 (1989); Commonwealth v. Heidelberg, 369 Pa.Super. 398, 535 A.2d 611 (1987). The central holding in each of these cases was a rejection of a “separate privacy” claim which would have provided a simple expedient by which to evade the force of, and render ineffective, a reasonable search warrant.

In Commonwealth v. Graciani, supra, this author opined:

Finally, we note the following relevant analysis by Justice Larsen:
Furthermore, in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) Justice William Rehnquist, writing a dissent for the United States Supreme Court, made a telling point when he stated that ‘an absolute bar to a searching persons not named in the warrant would often allow a person to frustrate the search simply by placing the contraband in his pocket. ’ Id. at 102, 100 S.Ct. at 348. And so too, visitors to the premises could frustrate the efforts of police by placing contraband among their unworn personal effects or by announcing ownership of various articles of clothing and containers in order to place those items beyond the scope of the warrant. We cannot sanction any rule that through fraud and gamesmanship erects barriers to the effective and legitimate execution of search warrants.
Commonwealth v. Reese, 520 Pa. 29, 34, 549 A.2d 909, 911 (1988). (Emphasis added).
This case presents an excellent example of just such fraud and gamesmanship.. Appellant complains that to uphold this search would make a mockery of our constitutions. To the contrary, it is appellant and his fellow drug dealers who attempt to make a mockery of our constitutions by taking the liberties embodied in the Fourth Amendment and Article I, section 8 of the Pennsylvania Constitution and attempting to twist them into a dark fortress from which to ply their deadly trade in societal poisons with impunity.
While we must ensure that legitimate constitutional rights do not become casualties in our society’s war on drugs, no rule of constitutional construction requires that we ignore the realities of modern drug distribution systems in determining the reasonableness of the warrant issue in this case.

554 A.2d at 562.

So too, here, appellee sought to use a lock on a bedroom door to defeat a lawful search warrant for the inventory and other evidence of the substantial, continuous, open, and notorious illegal speakeasy enterprise being conducted on the premises. Again, it is necessary to view the execution of the search in context, rather than as an academic abstraction. Viewed in such a light, the manifest reasonableness of the execution of the search warrant in this case is readily apparent.

The warrant in this case authorized the search of the entire residence. Far from disclosing overbreadth in the scope of the warrant, the facts which came to light during the execution of the warrant reinforced the reasonableness of the execution of the warrant including the search of appellee’s bedroom. The suspicions (based upon probable cause) that a speakeasy enterprise was being conducted at the residence were amply confirmed immediately upon entry in execution of the warrant. Appellee was actually engaged in those activities, identified himself as a tenant, and indicated which room was his. I consider the search of appellee’s bedroom entirely reasonable under these circumstances, notwithstanding the lock on the bedroom door. Succinctly, there was every reason to believe that appellee’s locked bedroom might contain further evidence of the illegal activities toward which the search warrant was directed, as opposed to merely containing the private property of an innocent and uninvolved third party not intended to be affected by the warrant.

Prior case law in this Commonwealth supports the reasonableness of the warrant and its execution in this case. See e.g. Commonwealth v. Davis, 331 Pa.Super. 285, 292-93, 480 A.2d 1035, 1040-42 (1984); Commonwealth v. Chamberlain, 277 Pa.Super. 503, 511, 419 A.2d 1261, 1266 (1980); Commonwealth v. Copertino, 209 Pa.Super. 63, 67, 224 A.2d 228, 230 (1966). Likewise, cases from other jurisdictions following Maryland v. Garrison, supra, are supportive. See e.g. United States v. Ofshe, 817 F.2d 1508, 1514 (11th Cir.1987); State v. Burns, 163 Ariz. 44, 785 P.2d 1232, 1233-34 (App.1989); People v. Foster, 174 Mich.App. 505, 436 N.W.2d 397, 397-98 (1988); State v. Hendricks, 145 N.J.Super. 27, 366 A.2d 999, 1000-02 (1976).

Hence, I dissent, and would reverse the suppression order.

      . 35 P.S. § 780-113(a)(30).

      . Local Ordinance L0706.01.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    577 A.2d 917
    The GARLAND COMPANY, INC., Appellant, v. J.L. MILLER & SONS, INC.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed July 25, 1990.
    Lucinda A. Bush, Washington, for appellant.
    Stephen Minor, Washington, for appellee.

      Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from judgment on the pleadings entered in favor of the defendant based on plaintiffs failure to institute this action within the applicable statute of limitations. We affirm.

The Garland Company, Inc., appellant, instituted this action on August 22, 1988, against J.L. Miller & Sons, Inc., appellee, seeking to recover $12,673.21 plus interest that appellee owes for roofing materials that appellant delivered on August 10, 1983. The total roofing materials purchased amounts to $52,673.21, and appellee made a partial payment of $40,000. Appellee answered the complaint by alleging that it does not owe the money due to appellant’s failure to deliver written warranties that are required by the parties’ contract. Appellee states that the roofing materials were used in the construction of a new school and that all materials had to be warranted before the school district would pay in full for the materials. The school failed to pay appellee for all of the roofing materials because no written warranties were forwarded, even though appellee repeatedly contacted appellant and requested the warranties. Appellee also raises as new matter the bar of the statute of limitations. Appellant responded to the answer by alleging both that it had not agreed to supply the warranties and that the statute of limitations had not expired.

Appellee then filed a motion for judgment on the pleadings, based on the applicable four-year statute of limitations and the fact that the action was filed five years and twelve days after the debt became due, which was upon delivery of the goods. In response, appellant filed a petition for leave to amend its pleadings, adding a new allegation regarding the statute of limitations. The new allegation is that on August 26, 1988, four days after this action was instituted, John Miller of appellee’s company made a new promise to pay the debt. The details of the promise are set forth in a letter from appellant’s counsel to appellant’s credit manager. A copy of the letter is attached to appellant’s petition to amend its answer to new matter. In the letter, appellant’s counsel relates a conversation with Mr. Miller on August 26, 1988, wherein Mr. Miller stated that he was not paying the money because he had not been able to collect the money from the school district that had purchased the roofing materials. The trial court concluded that this new allegation was not sufficient to avoid the bar of the statute of limitations, and it granted appellee’s motion for judgment on the pleadings. This appeal followed.

Appellant contends that the August 26, 1988 acknowledgment by Mr. Miller that his firm owed the money tolled the four year statute of limitations applicable to this action pursuant to 13 Pa.C.S. section 2725(a). We disagree, concluding that Mr. Miller’s statements that are outlined in the letter by appellant’s counsel are insufficient as a matter of law to toll the statute of limitations.

Section 82(1) of the Restatement (Second) of Contracts provides that a promise to pay all or part of an antecedent contractual indebtedness owed by the promisor is binding if the debt would be enforceable but for the effect of the statute of limitations. Section 82(2) outlines three situations which operate as a promise under section 82(1). The situation that appellant contends is applicable herein is the one contained in section 82(2)(a), which provides that a “voluntary acknowledgment of the oblige, admitting the present existence of the antecedent indebtedness,” is a promise that is binding. Acknowledgment' is defined as an unqualified admission that a debt is owing. Restatement (Second) of Contracts § 82, comment d. Comment d notes that if circumstances indicate an unwillingness to pay, the acknowledgment is not effective.

In Receiver of Anthracite Trust Co. v. Loughran, 341 Pa. 142, 19 A.2d 61 (1941), the supreme court examined the characteristics that a promise to pay an antecedent debt must display before we may consider the promise sufficient to toll the statute of limitations. The court stated that in order for a promise to effectively render the statute of limitations inapplicable, it must be clear and unequivocal. The court specifically ruled that any words inconsistent with a promise to pay will make the acknowledgment inoperative. Applying those principals to the facts there under consideration, the court held that a promise to pay half of the amount due on a note if another person would pay the other half due was not sufficient due to the fact that it was conditional.

Mr. Miller’s statements to appellant’s counsel, as outlined in the letter, cannot be construed under any circumstances as an unqualified admission that he owed the money. Counsel’s letter states as follows:

Suit was entered on this matter and the Defendant was served with the Complaint. Mr. John Miller called me concerning the matter. Mr. Miller explained to me that the reason he was not paying you was because he was unable to collect his money from Trinity School District. I explained to him that the fact that he did not get paid does not mean that he does not owe Garland for the materials. He indicated that the reason Trinity would not pay him was because he could not obtain a warranty for the materials from Garland.
He further notified me that while he was involved with this matter he dealt with a person from Garland named “Don” who was very familiar with the situation. Please send me further information concerning this claim and concerning Mr. Miller’s position. He informs me that Trinity still owes him over $20,000.00 which he feels he could collect if he received a warranty for the roof.

Letter dated August 26, 1988, to The Garland Company, Inc.

Construing Mr. Miller’s statements in the light most favorable to appellant, it is clear that Mr. Miller’s willingness to pay the debt was conditioned expressly upon his receipt of payment from the school district which could not occur until appellant provided written warranties on the roofing materials. Since Mr. Miller’s statements regarding appellee’s obligation to pay the debt were not unconditional but instead indicate that he did not intend to pay unless certain actions were performed by appellee and until the school district paid him, the statements are not sufficient to toll the statute of limitations under section 82(2)(a) of the Restatement and the supreme court’s decision in Anthracite Trust Co.

Appellant’s counsel is the person who stated during the August 26, 1988 conversation that appellee’s obligation to pay the debt is unconditional. We question the propriety of counsel’s present use of Mr. Miller’s statements since they were made just after counsel’s client instituted suit against the Mr. Miller’s company and were made when Mr. Miller appears to have been an unrepresented layperson. Furthermore, we conclude as a matter of law that Mr. Miller’s acknowledgment of the debt was not unconditional and that the conversation demonstrates that he remained unwilling to repay the obligation. Therefore, Mr. Miller’s statements were not sufficient to toll the statute of limitations, and the trial court correctly granted judgment on the pleadings.

Order affirmed.

      . See Rules of Professional Conduct Nos. 4.2, 4.3, and 4.4.


author: TAMILIA, Judge:

text:
    577 A.2d 920
    COMMONWEALTH of Pennsylvania v. Michael COHEN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Decided July 12, 1990.

      Edward T. Feierstein, Philadelphia, for appellant.
    Mary MacNeil Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant Michael Cohen appeals from the Order entered November 22, 1989 denying his application for expungement of his record upon successful completion of the Accelerated Rehabilitative Disposition (ARD) program. On March 25, 1986, appellant was arrested and charged with indecent assault, corruption of minors and endangering welfare of children. The charges arose from the alleged assault of a three-year-old girl by appellant at the day care center where appellant was employed as a teacher. On May 6, 1987, by the terms of ARD, appellant was placed on 24 months probation, ordered to pay $300 restitution, undergo a psychiatric evaluation and comply with any recommended psychiatric treatment, to withdraw his appeal with Children and Youth Services to have his license to teach restored, and to agree not to teach in the future. Appellant successfully completed the ARD program and filed a petition for an Order dismissing and expunging the charges against him. The Commonwealth filed an answer to appellant’s petition, requesting retention of his arrest record in order to ensure appellant never teach again. After hearing on October 25,1989, the court then entered the Order which is before us on this appeal.

On appeal, appellant first argues the Commonwealth failed to demonstrate at the October 25, 1989 hearing an overriding societal interest in maintaining appellant’s criminal record.

Our Supreme Court has previously held that in certain circumstances substantive due process guarantees an individual the right to have his or her arrest record expunged.

In determining whether justice requires expungement, the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.

Commonwealth v. Wexler, 494 Pa. 325, 329, 431 A.2d 877, 879 (1981). The Court subsequently extended this balancing test to ARD cases. “[T]he policy considerations underlying ARD mandate that unless the Commonwealth demonstrates an overriding societal interest in retaining [the arrest] record, expungement must be granted.” Commonwealth v. Armstrong, 495 Pa. 506, 508, 434 A.2d 1205, 1206 (1981).

The Wexler Court went on to enumerate some of the factors to be considered by the trial court in determining an expungement petition:

The [factors] include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

Id. 494 Pa. at 330, 431 A.2d at 879 (citation omitted).

Reviewing the above factors in conjunction with the record in this case, we are compelled to find the trial court correctly denied appellant’s petition to dismiss charges and expunge the record.

The Commonwealth’s primary stated purpose in retaining appellant’s record “is to prevent him from endangering the safety of future students. By allowing [appellant’s] record to be expunged [appellant] would be able to seek employment in the same or a similar area, thus, potentially endangering future students.” (Slip Op., Vogel, P.J., 1/23/90, p. 4.) We agree. The provisions of ARD are set forth in Rules 175-186 of the Pennsylvania Rules of Criminal Procedure. The Committee Introduction to that section states the rules contemplate crimes committed by first-time offenders and “that the crime charged is relatively minor and does not involve a serious breach of the public trust.” While this Court would include in that group of contemplated crimes first-time offenses for drunk driving, minor property crimes and even small scale narcotics offenses, we cannot believe the legislature contemplated a crime of violence committed against a vulnerable and helpless three-year-old child by an adult in a position of authority and trust. While we question the suitability of submitting this case to ARD as opposed to a trial, we find the condition for acceptance into ARD, that appellant never teach again, indispensable to avoid a recurrence of this activity, notwithstanding appellant’s lack of any prior criminal record. Maintenance of the records in this case is the only assured means to enforce this condition and constitutes a societal interest which overrides appellant’s interest in expungement. Because this consideration is so important we do not find that any of the other factors subject to consideration warrant expungement of appellant’s records.

Expungement is dealt with in greater specificity under the Criminal History Record Information Act, 18 Pa.C.S.A., Ch. 91 Section 9124, Use of records by licensing agencies, Subsection (b) Prohibited use of information provides in pertinent part:

The following information shall not be used in consideration of an application for a license, certificate, registration or permit:
(1) Records of arrest if there is no conviction of a crime based on the arrest.
(2) Convictions which have been annulled or expunged. ...

(Emphasis added.)

Pursuant to the above, appellant could conceivably be certified as a teacher, despite his promise not to teach, if his record has been expunged. Similarly, the Child Protective Services Law, 11 P.S. § 2201 et seq., at § 2223.1, Information relating to prospective child care personnel can be triggered to provide information to child care institutions only if there is a child abuse report contained in a central registry or a criminal record perpetuated by the Criminal History Record Information Act Section 2223.1(e) which provides:

(e) In no case shall an administrator hire an applicant if the applicant’s criminal history record information indicates the applicant has been convicted, within five years immediately preceding the date of the report, of one or more of the following offenses under Title 18 of the Pennsylvania Consolidated Statutes:
Section 3127 (relating to indecent exposure).
Section 6301 (relating to corruption of minors).

By expungement of appellant’s record, officials dealing with children in the education and child care fields, where appellant has been employed in the past, will be seriously hampered in ascertaining appellant’s involvement in child-related offenses, should he seek employment in those areas. To rely on appellant’s promise alone, that he would not seek employment in teaching, does not provide the safeguard society requires in this situation. Should appellant default on his promise, authorities would be unlikely to learn of such a breach unless or until a further offense was discovered. Experience in this regard leads us to conclude that numerous offenses could occur and perhaps years elapse before a violation was detected. The Accelerated Rehabilitation Program was not designed to allow this threat to persist and expungement is totally improper under these circumstances.

Appellant relies on this Court’s holding in Commonwealth v. Welford, 279 Pa.Super. 300, 420 A.2d 1344 (1980), wherein we stated that “by recommending an accused for ARD, the Commonwealth agrees that he will be free from criminal responsibility if he successfully completes the ARD program.” Id., 279 Pa.Superior Ct. at 302, 420 A.2d at 1345. This reliance is misplaced and fails to consider the crux of Welford and the other ARD expungement cases.

In Welford, this Court went on to comment that “it is likely that the accused enters into [the ARD] agreement with the understanding that if he successfully completes the ARD program his record will be expunged. Where ... the Commonwealth cites no overriding interest in retaining his criminal record, this reasonable expectation of the accused should prevail.” Id. However, where an overriding interest is cited, retention of the records is appropriate. In the instant case, as the Commonwealth has established an overriding interest in ensuring appellant never teach again, appellant’s expectation of expungement, reasonable or not, will not prevail.

Order affirmed.

      . 18 Pa.C.S. § 3126(1).

      . Id., § 6301(a).

      . Id. § 4304.

      . Various amendments to the rules governing ARD, including the addition of Rule 186, were effective July 1, 1989. As appellant was accepted into and, in fact, completed the ARD program prior to that date, the amendments are not applicable here.


author:
BROSKY, Judge.
      BECK, Judge,

text:
    577 A.2d 923
    ESTATE OF Frank S. SPICKLER, Deceased, Appellant, v. COUNTY OF LANCASTER BOARD OF COMMISSIONERS.
    Superior Court of Pennsylvania.
    Submitted Nov. 29, 1989.
    Decided July 16, 1990.

      Henry F. Gingrich, Elizabethtown, for appellant.
    John A. Kenneff, Millerville, for appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from an order dismissing exceptions to a memorandum opinion in a quiet title action. The action was brought to litigate the existence of an easement over property which was formerly a railroad bed. The trial court found that no such easement existed and appellant has appealed raising several allegations of error and arguments in its favor, included among them, that there existed an easement by operation of the Railroad Act of 1849. We reverse.

The facts of relevance are: Appellant, Estate of Spickler, brought this action to quiet title to an easement purportedly running across property that used to be a railroad and is now a recreational walking trail. Appellant asserts, inter alia, that there exists an easement by operation of law under the Railroad Act.

The relevant chain of title indicates that the land in question, plus additional land, was owned by Benjamin Brandt when a strip of Brandt’s land was conveyed to C. & L. Railroad in 1881, effectively bisecting the remainder of Brandt’s land. This conveyance, for practical purposes, created two separate parcels of land which were later conveyed separately. Appellant’s property was the parcel to the north, and there was another to the south. The northern parcel was conveyed to Gibble and then to Groff then to Spickler. The deed from Brandt to Gibble indicates the presence of an easement along the northern boundary of the railroad’s strip which was purportedly acquired in 1909. The same language is contained in the deed from Gibble to Groff. However, in the deed from Groff to Spickler there is described an easement across the railroad’s land and to a public road accessible from the southern track. In fact, there exists a “farm road” across the railroad/county’s land which has been in existence and used since at least 1912. It is the use of this way that is in question. The parcel conveyed to the railroad was used for a railroad until 1976. In 1979 the land was purchased by the county.

Appellant argues that it had an easement by operation of the Railroad Act of 1849. That act states:

Whenever, in the construction of such road or roads [railroads], it shall be necessary to cross or intersect an established road or way, it shall be the duty of the ... said company [railroad company], so to construct the said road [railroad] across such established road or way, as not to impede the passage or transportation of persons or property along the same; and that, for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make or cause to be made a good and sufficient causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of said lands to cross and pass over the same, ...

15 P.S. § 4101. The trial court considered this Act but found that it did not support appellant’s theory as it applied only to established roads and ways. However, there are essentially two parts to the statute; and, the trial court did not address the second part. This second part refers to the landowner’s right to have an access way across the right-of-way/railroad when it divides the portion of land in two. Although the law is rather antiquated it remains valid today, and although the caselaw is equally old, it seems to support appellant’s position.

One of the more recent decisions on this act is Sonnen v. Reading Company, 43 D. & C.2d 737 (1967). There the court discussed the railroad’s duty to maintain access-ways across the railroad and noted several highly relevant general propositions regarding such rights of way. There it was stated:

Under the plain meaning of the Act of 1849, a property owner whose land was severed by the taking of a right-of-way for railroad purposes was given a vested right to a private crossing on their own lands over the railroad’s right-of-way. It is a right as sacred as any other property right. It was granted by the State, and no power but that of the State could deprive them of it: Green v. Baltimore & Ohio Railroad Co., 245 Pa. 35 [91 A. 248].

The court continued its discussion, later stating:

Defendant’s contention is that the existence of an alternate route, township road 640, as a means of access by plaintiffs, compels the conclusion that defendant need not repair and maintain bridge no. 18/22____
We are of the opinion that, once a property owner acquired a private crossing over the right-of-way under the Acts of 1849, he cannot be divested of this right by the subsequent location of a public road across the property which would supply a less convenient alternate crossing route. It is only in those cases where a public route crossing the right-of-way is in existence that a property owner cannot compel a railroad to furnish an additional private causeway crossing.
Nor are we of the opinion that the acquisition by one person of two lots or farms, each of which enjoys the benefit of the Act of 1849 by having private access causeways built theréon and maintained by the railroad, is a sufficient reason at law for the railroad to discontinue maintaining and repairing one of the crossings. As we pointed out previously, this is a vested right for which consideration was given. It is for the accommodation and convenience of the property owner____ If we were to accept defendant’s contention in this regard, we would be divesting plaintiffs of a valuable legal right without compensating them for it.

We would note that, although Sonnen is a decision of the Court of Common Pleas, it is founded upon principles mostly asserted by our Supreme Court; and, that although rather old, those decisions remain valid law to this day. For instance, Dubbs v. Philadelphia & Railroad Co. Reading, 148 Pa. 66, 23 A. 883 (1892), held that the object of this section was to compel railroad companies to give the owners of farms divided by a railroad a convenient mode of access from one part to the other. In Shepp v. Reading Belt Railroad, 211 Pa. 425, 60 A. 985 (1905), it was held that where there is no public road crossing the landowner is entitled to a private one.

The error of the trial court appears to lie in the consideration of only part of the referenced Act without consideration of the other, and its defined purpose. The trial court found that the Act was inapplicable because it dealt only with established roads or ways. This is true to a certain extent, however, it is true only to that extent. The duty of the railroad described in the first part of the Act requires them to build the railroad in such a way as to not impede traffic across then established roads. This might require the building of bridges and/or underpasses as was seen in Sonnen. However, there is another portion of the Act which has been unequivocally defined as intending to provide for access across the railroad by a landowner when the railroad shall bisect the landowner’s land. The trial court failed to consider this portion of the Act.

Under the principles enunciated in Sonnen it would seem indisputable that at the time the strip of land was conveyed to the railroad and a railroad built upon it, Benjamin Brandt acquired a right to access across the railroad, as the railroad divided his land in two. Further, this right was a vested right as sacred as any other. Sonnen, by implication, further supports the theory that the easement is devisable to another, a theory which logic would further compel, lest there be too great a restraint upon alienation. To hold otherwise could result in many parcels of land so divided from being freely devisable due to lack of access. This would seem contrary to the intent of the Act. As such, it is rather easy to conclude that there was an inherent right of access across the railroad strip at all times relevant to the within controversy, and that it was acquired by all subsequent purchasers of Brandt’s land, including Spickler. As such, we conclude, the trial court’s decision to the contrary must be reversed and remanded so that an appropriate order quieting title in the easement can be entered.

Order reversed, remanded to trial court for proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J. files a dissenting opinion.

BECK, Judge,

dissenting.

I dissent. The majority has determined that appellant, the Estate of Frank S. Spickler, has an easement or right of way across a certain strip of land formerly used as a railroad bed and presently owned and used by appellee, the County of Lancaster, as a recreational walking trail. The majority bases this conclusion solely on the provisions of a now repealed statute, the Railroad Act of 1849, which provides in pertinent part:

Whenever in the construction of such road or roads [railroads], it shall be necessary to cross or intersect an established road or way, it shall be the duty of the ... said company, so to construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same; and that, for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make or cause to be made a good and sufficient causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of said lands to cross or pass over the same, with wagons, carts and implements of husbandry, as occasion may require, and the said causeway or causeways, when so made, shall be maintained and kept in good repair by such company ...

Pa.Stat.Ann. tit. 15, § 4101 (Purdon 1967).

The majority reasons that under this section, when the railroad originally constructed its railroad bed, which bisected an existing farm and allegedly rendered the northern portion of the farm (the property in question) landlocked, the railroad had an absolute duty to provide the then owner of the landlocked property with an easement across the tracks. This right of access from the northern portion to the southern portion, the majority concludes, is a right inherent in the owner of the property who conveyed it to the railroad and a right that passed to each subsequent owner of the property, whether or not it was ever actually granted by the railroad or reflected in the deeds from one owner to the next.

I disagree with this construction of the foregoing statute and with the conclusions drawn by the majority in applying the statute to the facts of the case before us. The statute does not provide that the railroad had an absolute duty to grant a private causeway across the railroad at a point along the portion of the railroad that bisected the northern and southern portions of this farm. The statute only states that the railroad must make such a causeway whenever it is necessary to enable the occupant of the farm to cross over the railroad.

Although the record in the instant case does not reveal precisely why the railroad did not create such a causeway at the time it first constructed the railroad, it is clear that the causeway was not established at that time. No such causeway appears in the chain of title to the railroad’s land, nor did it appear in any deed to appellant’s property until the deed to appellant’s decedent in 1942, more than sixty years after the railroad was built. The origins of this reference in the 1942 deed to a causeway across the railroad are unknown. The appellant and appellee stipulated that there is now in existence a farm road across the railroad from the northern portion of the farm to the southern portion, and that this farm road is the causeway referred to in the 1942 deed. In this action to quiet title the appellant seeks a judicial determination that this causeway is an easement which has attached to his property. The record reveals that the earliest date on which this farm path began being used was 1912, more than thirty years after the railroad was constructed. Therefore, since no causeway was established when the railroad was constructed, we can only assume that it was either not necessary that such a causeway be established or that the then owner of the property waived the right to such a causeway.

We note that the record does contain one possible explanation for the failure of the railroad to create such a causeway. Since at least 1909, there was another means of access across the railroad. Deeds to the property predating the acquisition of the land by appellant indicate that since at least 1909, there was an easement along the northern boundary of the railroad leading through the farm in question, through other land to the east and ending at a public road which could then be used to cross over the railroad. It is entirely possible that because this easement existed, perhaps informally before 1909 and then pursuant to a formal grant after 1909, it was not necessary that any private causeway be established when the railroad was originally constructed through the farm. It may well be that there already was a perfectly adequate means of access along the northern boundary of the railroad and then across it via a public road. In other words, it may well have been the custom of the original owner of the farm to use the existing public road to the east of the property to cross over the area on which the railroad was eventually built. If the original owner of the farm customarily exited the northern portion of the farm by going across it and across the lands adjoining the farm to the public road to the east, instead of transversing the entire length of the farm from north to south to access the public road to the south, and this means of access to the public road to the east was in no way impeded by the construction of the railroad, then perhaps the original owner simply did not demand the establishment of any other causeway across the railroad.

None of the authorities cited by the majority hold that the statute, which has now been repealed, granted a property owner whose land was bisected by a railroad an absolute right to a causeway across the railroad even when it was not necessary that such be established because there was already an existing means of access across the road or because the owner of the property did not require one as part of the consideration for the land taken by the railroad. For example, Sonnen v. Reading Company, 43 D. & C. 2d 737 (1967), on which the majority heavily relies, actually addresses a situation where a railroad had in fact constructed a private crossing over the railroad, presumably because it was necessary to do so when the railroad was constructed, and then attempted to allow the crossing to fall into disrepair when another means of access across the railroad was later constructed. This is a highly distinct situation from that presented by the case at bar. Furthermore, although the Sonnen court did state that the statute gave to every property owner whose land was severed by a railroad a right to a private causeway across such railroad, the Sonnen court also emphasized that the vested right to such a causeway arose from the fact that the causeway, assuming it was in fact given by the railroad, formed part of the consideration for the property conveyed to the railroad. In the instant case, no causeway was ever given, apparently because it was not necessary, and thus it did not form part of the consideration given to the original owner of the farm for the railroad’s right of way. In consequence, there is no vested right in any of that owner’s successors, including appellant.

Appellant has simply not established that in 1881, when the railroad was constructed, there was a causeway across the railroad which was necessary to enable the occupant of the farm to cross over the railroad. Clearly on this record there is nothing to support an absolute right in appellant to a present recognition of a right of way or easement across the former railroad dating back to when the railroad was constructed. No such right of way was established by the railroad at that time and appellant has not proven that the failure of the railroad to establish the right of way was a breach of its statutory duty which must now be remedied by a judicial grant of the right of way to appellant.

I have also reviewed appellant’s other arguments in support of a finding of a right of way or easement across the railroad. Like the trial court, I find no merit in any of appellant’s other arguments. I would affirm the trial court’s disposition of those issues based on the opinion of the trial court, authored by Judge Ronald L. Buckwalter of the Court of Common Pleas for Lancaster County.

      . In this regard, we find irrelevant appellee’s contention that the Act in question has been repealed. The fact of the matter is that it was in effect at the time of the conveyance to the railroad. Thus, the easement or right of access was established at that point in time and must be construed to run with the land. Absent some indication that the repealing of the Act was further designed to extinguish already existing rights acquired under it, we will not impute such an intent from the mere repealing of the Act.

      . Likewise, in Dubbs v. Philadelphia & Reading Railroad Co., 148 Pa. 66, 23 A. 883 (1892), the court dealt with an attempt by a railroad to remove a crossing which the railroad had established when the railroad was constructed. The court held only that the crossing was necessary to provide access over the railroad and should not have been removed.

      . The majority found it unnecessary to address these arguments since it found for appellant solely on the ground that the Railroad Act provided appellant with a vested right to the right of way.


author: CERCONE, Judge:

text:
    577 A.2d 928
    COMMONWEALTH of Pennsylvania v. Lloyd MINOTT, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Decided July 18, 1990.

      Dennis H. Eisman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant was charged with knowing or intentional possession of a controlled substance and manufacture, delivery, or possession of a controlled substance with intent to manufacture or deliver. He was adjudged guilty of both charges after a non-jury trial, and was sentenced to a term of incarceration of not less than two (2) or more than eight (8) years. Appellant’s motion for reduction of sentence was denied. He then filed the instant timely appeal.

The charges against appellant arose out of an occurrence on May 17, 1988, in which appellant was observed handing a plastic bag filled with packets to another individual. After appellant’s arrest, the bag was recovered and two of the packets were analyzed. Those two packets were found to contain 229 and 230 milligrams of cocaine respectively. The lower court extrapolated the weight of the entire bag of fifty packets to be approximately ten (10) grams based on the measured weights of the two packets. On appeal, appellant raises the following issues: (1) whether the lower court, in determining the appropriate offense gravity score under the sentencing guidelines for drug offenses, improperly extrapolated the weight of the entire bag based upon the weights of the measured individual packets; (2) whether the lower court abused its discretion in sentencing appellant “by overemphasizing as a factor that [appellant] proceeded to trial rather than submitting to a guilty plea”; and (3) whether the lower court adequately considered “the positive factors in [appellant’s] behalf” when sentencing.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of that discretion. Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), allocatur denied 515 Pa. 619, 531 A.2d 427 (1987). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). The discretion of the sentencing judge must be accorded great weight because he is in the best position to weigh various factors such as the nature of the crime, the defendant’s character, and the defendant’s displays of remorse, defiance, or indifference. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

Appellant has included in his appellate brief a statement of reasons relied upon for allowance of appeal, pursuant to Pa.R.A.P., Rule 2119(f). Thus, he has complied with the procedural requirements for a challenge to the discretionary aspects of sentence. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Accordingly, we may proceed to a determination of whether there is a substantial question that the sentence imposed is not appropriate. 42 Pa.C. S.A. § 9781(b).

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 have reviewed appellant’s brief including his Rule 2119(f) statement and conclude that appellant has stated a substantial question only as to the first issue raised on appeal, i.e., whether the lower court applied the wrong offense gravity score in computing appellant’s sentence under the drug offense guidelines as a result of the court’s allegedly improper extrapolation of the weight of the entire bag of cocaine packets. Appellant has not stated a substantial question with regard to the remaining issues on appeal because each of those issues challenges the discretion of the court in “overemphasizing” or “failing to adequately consider” certain factors relevant to the sentencing determination, and appellant’s Rule 2119(f) statement contains no factual averments which would suggest that the sentencing scheme as a whole has been compromised. See Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc) (allegations that the sentencing court “failed to consider” or “did not adequately consider” various factors does not raise a substantial question that the sentence imposed was inappropriate). In fact, allegations of the type raised in appellant’s second and third issues on appeal presume that the sentencing court was provided with adequate information on which to base its sentencing decision, and having such information in its possession, will act in accordance with that information. Id., 386 Pa.Superior Ct. at 326, 562 A.2d at 1388, quoting Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988) (“It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand”). In addition, appellant’s second issue has been raised by him for the first time on appeal; thus we will consider it waived. See Commonwealth v. Dorman, 377 Pa.Super. 419, 438, 547 A.2d 757, 766 (1988) (claims about the propriety of sentence or irregularities in the proceedings must be raised in a petition to modify sentence or they are waived for purposes of appeal). See also Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984) (issue of whether trial court considered improper factors in imposing sentence was waived by defendant’s failure to raise objection either at sentencing hearing or in petition to modify sentence). We will thus disallow the appeal of the second and third issues appellant has raised but will grant allowance of appeal of appellant’s remaining allegation which does raise a substantial question for our review.

Turning to the merits of that issue, we note that in imposing sentence, the sentencing court is to follow the general principle that the sentence imposed should be the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Edward, 303 Pa.Super. 454, 450 A.2d 15 (1982). Consistent with that principle, sentencing guidelines have been adopted which set forth standard, aggravated and mitigated ranges of minimum sentences, taking into account and objectifying various factors relevant to sentencing such as the defendant’s prior record and the gravity of the offense for which sentence is to be imposed. See 204 Pa.Code § 303.1 et seq. The guidelines currently in effect apply to offenses committed on or after the effective date of the guidelines, April 25, 1988. In the instant case, the charges arose out of an offense committed on May 17, 1988; thus, the sentencing guidelines are applicable.

Although the sentencing guidelines specify definitive ranges of minimum sentences, the adoption of the guidelines was not intended to preclude judicial discretion. Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985). The only constraints placed upon the trial court’s discretion in sentencing matters are that the sentence imposed must be within statutory limits and the record must show that the court considered the sentencing guidelines and adhered to the standard set forth above (that the sentence imposed should call for confinement consistent with protection of the public, gravity of the offense, and the rehabilitative needs of the defendant). Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988).

In the case sub judice, the lower court considered the sentencing guidelines relevant to offenses arising from violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113 and found that appellant had committed an offense of the level “E” with respect to the offense gravity score. An offense gravity score of “E” under the guidelines for drug offenses is assigned when the offense involves a violation of 35 P.S. § 780-113(a)(12), (a)(14), or (a)(30) and a quantity of PCP, cocaine, or methamphetamine of two (2) grams to one hundred (100) grams. With an offense gravity score of “E” and a prior record score of zero (0), the standard range of minimum sentence under the guidelines is fifteen (15) to twenty-seven (27) months. An offense gravity score of “F” for the same offenses would be appropriate if the amount of drugs involved was less than two (2) grams. With an “F” offense gravity score and a prior record score of zero (0), the standard range of minimum sentence would be from six (6) to fifteen (15) months. This is in fact appellant’s contention on appeal, that the appropriate offense gravity score for his offenses was “F,” and that therefore a minimum sentence of two years was erroneous. The maximum sentence for the offenses of which appellant was convicted is fifteen (15) years. 35 P.S. § 780-113(f)(l). Therefore, the maximum sentence of eight (8) years assigned by the court was within the statutory limits.

In selecting an offense gravity score of “E” for appellant’s offenses, the lower court extrapolated the amount of cocaine present in the fifty packets seized by multiplying fifty times the amount of cocaine found in two representative packets field tested by a chemist. Such extrapolation yields a quantity well in excess of two grams, the minimum amount for application of the grade “E” offense gravity score. It is this extrapolation which appellant contends was an impermissible exercise of the court’s sentencing discretion. For the following reasons, we do not agree that the lower court abused its discretion in this regard.

The practice of testing representative samples of larger quantities of drugs and extrapolating therefrom the total narcotic content of illegal substances is well accepted. In Pennsylvania, this method was approved in Commonwealth v. Gorodetsky, 178 Pa.Super. 467, 115 A.2d 760 (1977). In that case, a chemist testified that his analysis of representative samples of eight tablets sold by defendant to a police informant permitted him to conclude that each of the tablets contained more than one fourth (V4) gram of morphine. This evidence was held sufficient to sustain defendant’s conviction of possessing or delivering more than the statutorily prohibited amount of the illegal substance. Other jurisdictions have also permitted the use of extrapolation in determining the quantity of illegal drugs. See Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982) (trial judge could find from representative sampling and testing of ten of one hundred tablets seized and found to contain methaqualone that the other ninety tablets were identical); Pama v. State, 552 So.2d 309 (Fla.Dist.Ct.App.1989) (evidence that experienced law enforcement officer examined twenty bales of a seized substance and identified those bales as containing marijuana was adequate proof that at least twenty of the bales seized contained marijuana); Asmer v. State, 416 So.2d 485 (Fla.Dist.Ct.App.1982) (one thousand tablets weighing 795.7 grams was seized; one tablet was tested and found to contain methaqualone; appellant’s conviction of trafficking in more than two hundred grams of methaqualone upheld); Commonwealth v. Shea, 28 Mass.App.Ct. 28, 545 N.E.2d 1185 (1989) (no basis for reversal of conviction for cocaine trafficking where only five infrared and four ultraviolet tests were made on a total of nine bags seized); State v. Anderson, 76 N.C.App. 434, 333 S.E.2d 762 (1985) (evidence sufficient to support finding that defendant possessed more than four grams of heroin where fourteen packets were seized and random samples with a total weight of one gram were taken from three packets); State v. Mattox, 13 Ohio App.3d 52, 468 N.E.2d 353 (1983) (evidence that random sample of five tablets taken from ten tablets that defendant had sold police officer contained LSD was substantial evidence from which court could properly conclude beyond a reasonable doubt that all ten tablets contained LSD); State v. Selph, 625 S.W.2d 285 (Tenn.Crim. App.1981) (evidence sufficient to convict appellant of selling more than two hundred grams of methaqualone where five tablets of five thousand tablets seized were tested and found to contain methaqualone weighing a total of 1500 milligrams; total weight of tablets seized was 3,824 grams).

The extrapolation of drug quantities was approved in the context of the sentencing phase of a criminal process in United States v. Fuentes, 877 F.2d 895 (11th Cir.1989), cert. denied — U.S. - & -, 110 S.Ct. 347 & 516, 107 L.Ed.2d 335 & 517 (1989). In that case, coast guardsmen observed brown objects being thrown from a vessel which they were pursuing. Approximately two hundred fifty to four hundred such objects were observed, and were characterized at trial as identically packaged bales. One of these bales, weighing 27.65 grams and identified as a mixture containing marijuana, was entered into evidence. The court concluded that the evidence supported a finding that appellant possessed a mixture containing marijuana well in excess of the statutory figure of one thousand kilograms. See The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 960. Therefore, appellant was correctly sentenced to a minimum of ten years imprisonment under that statute.

Extrapolation has also been approved as a legitimate fact-finding process in the context of determining blood alcohol content with regard to offenses arising under the Motor Vehicle Code. In Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986), evidence of a blood test was admitted indicating that appellant’s blood alcohol level was 0.13 percent one and one-half hours after the accident. In addition, evidence was offered that appellant had been drinking over the course of the entire evening and that he had not consumed a large quantity of alcohol immediately before operating his motorcycle, as well as appellant’s admission that he felt the effect of the alcohol while driving. A majority of a panel of this court held that this evidence was sufficient to permit the jury to infer that appellant’s blood alcohol content exceeded the legal limits at the time the accident occurred, one and one-half hours prior to the blood test. A similar result was reached in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), allocatur denied 517 Pa. 594, 535 A.2d 83 (1987) (results of breathalyzer test could support conviction for operating a motor vehicle while having a blood alcohol content of 0.10 percent or greater although test was administered two hours and forty-five minutes after driver’s arrest).

It is also well-established in this Commonwealth that the identity of illegal narcotic substances may be established by circumstantial evidence alone, without any chemical analysis of the seized contraband. Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982); Commonwealth v. Leskovic, 227 Pa.Super. 565, 307 A.2d 357 (1973). Such a policy indicates that the courts will not, in cases involving the sale or use of illegal drugs, constrict their fact-finding function in regard to the identity of drugs to a strict scientific analysis, but will rather permit the use of common sense and reasonable inferences in the determination of the identity of such substances. Given this policy of the courts in regard to the identification of illegal drugs as well as the courts’ indication of a willingness to utilize the extrapolation method in previous cases, we conclude that the extrapolation method utilized by the court in this case was a reasonable and appropriate one for determining the quantity of illegal drugs seized for sentencing purposes. In so holding, we also note that we would consider a requirement that each of the fifty packets be individually analyzed an onerous and expensive burden and one not necessary for the effective functioning of the judicial sentencing process. Given these considerations, we hold that the lower court did not abuse its discretion in permitting extrapolation of the quantity of illegal drugs seized from appellant based on a chemical analysis of two of fifty identical packets in determining the appropriate offense gravity score for purposes of sentencing appellant. Thus, the court's selection of an offense gravity score of "E” was appropriate, and appellant’s minimum sentence of two years was within the recommended range of minimum sentences under the applicable sentencing guidelines.

Judgment of sentence affirmed.


author: CIRILLO, President Judge:

text:
    577 A.2d 1341
    Truman D. BECKETT, Jr. v. Barbara Ann LAUX. Appeal of Wayne N. LAUX, Terre Tenant, Successor Owner of Real Estate Owned by Defendant, Barbara Ann Laux.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1989.
    Filed June 4, 1990.

      Fred J. Lagattuta, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   CIRILLO, President Judge:

Wayne N. Laux (“Laux”) appeals from an order entered in the Allegheny County Court of Common Pleas on April 6, 1989, which denied his motion to stay execution, set aside a writ of execution, and award attorney’s fees and costs. Barbara Laux (“Mrs. Laux”) and Laux were divorced in 1979. Their principal marital asset was the house they owned which was conveyed to Mrs. Laux subject to her agreement to pay Laux $20,000. During Mrs. Laux’s ownership, she borrowed $10,000 from Truman P. Beckett (“Beckett”). The terms of this loan were incorporated into a judgment note. Beckett confessed judgment on the note against Mrs. Laux on October 2, 1985. Mrs. Laux then conveyed her interest in the home to Laux on January 14, 1987. After this conveyance to Laux, Beckett’s attorney notified Laux of Beckett’s lien. Prior to Beckett’s notification, Laux maintains he was unaware of Beckett’s lien. A meeting was then held in Beckett’s office at which time Beckett assured Laux that he would not enforce the lien against the property and would look to Mrs. Laux for satisfaction of the $10,000 obligation. Relying upon these representations, Laux made improvements on the property.

On May 17, 1988, and again on January 12, 1989, Beckett caused to be issued a writ of execution against the property. A sale was scheduled on April 3, 1989 in Pittsburgh. Laux filed a motion to stay the sale, set aside the writ and award attorney’s fees. An order staying the sale was issued until proceedings could be held addressing Laux’s contentions. A hearing was held and an order was entered denying Laux’s motions on April 6, 1989. This timely appeal followed.

Laux raises two issues on appeal:

(1) Did the trial court err as a matter of law in failing to require [Beckett] to observe the provisions of the Loan Interest and Protection Law (41 P.S. § 101) \et seq.J!
(2) Did the trial court err as a matter of law in deciding that appellant [Laux] did not have standing to file a Motion to Stay Execution, Set Aside Writ of Execution and Award Attorney’s Fees pursuant to the provisions of the Loan Interest and Protection Law (41 P.S. § 101 et seq.)1

Laux contends that when Beckett confessed judgment on the note it effected a lien upon the property he now owns making it a residential mortgage and entitling him to the protections of the Loan Interest and Protection Law (“Act 6”). Specifically, Laux maintains that Beckett’s execution was improper under the provisions of section 407 of Act 6 which prohibits execution against residential real property on a confessed judgment until plaintiff has brought an appropriate action under the Rules of Civil Procedure. See 41 P.S. § 407.

Beckett, on the other hand, states that the instant transaction is not a residential mortgage, and therefore, Laux is not entitled to the protections of Act 6. Moreover, Beckett claims, Laux lacks standing to contest his execution since Laux was not a party to the original loan transaction.

Act 6 is essentially a comprehensive interest and usury law with numerous functions. Anderson Contracting Co. v. Daugherty, 274 Pa.Super. 13, 17, 417 A.2d 1227, 1229 (1979). Chief among those functions is that it offers homeowners with “residential mortgages” a measure of protection from overly zealous “residential mortgage lenders.” Continental Bank v. Rapp, 336 Pa.Super. 160, 169, 485 A.2d 480, 485 (1984). Contrary to the instant parties’ assertions, however, Act 6 does not deal exclusively with residential mortgages. See First National Bank of Allentown v. Koneski, 392 Pa.Super. 533, 573 A.2d 591 (1990); In re Jackson, 92 B.R. 987 (Bkrtcy.E.D.Pa.1988). However, the existence of a residential mortgage is, to a certain extent, a triggering mechanism which brings into play many of Act 6’s provisions. McDowell National Bank of Sharon v. Stupka, 310 Pa.Super. 143, 150, 456 A.2d 540, 544 (1983). Here, Laux seeks to invoke certain of the protections contained in Act 6 which, by their terms, govern proceedings relating to residential mortgages.

Consequently, our initial task, utilizing Act 6’s definitional section as our guide, is to determine whether confessing judgment on a judgment note brings the note within the range of transactions which Act 6 contemplated in its use of the term, “residential mortgage.” If the instant transaction falls within Act 6’s definition of a residential mortgage, we must then discern whether Beckett falls within the definition of a residential mortgage lender, and whether Laux, as a successor record owner of the property which is subject to the mortgage, qualifies as a residential mortgage debtor.

Based upon the analysis that follows we find that Act 6 intended to protect, as a residential mortgage, Beckett’s confession of judgment on the note. Consequently, Beckett, the residential mortgage lender, may proceed against Laux, the residential mortgage debtor, only in accordance with the procedures set forth in the relevant sections of Act 6. Namely, since Beckett had confessed judgment on the note he could not file a writ of execution against the residential real property until he commenced an appropriate action under the Pennsylvania Rules of Civil Procedure.

A residential mortgage is defined in section 101 of Act 6 as:

[A]n obligation to pay a sum of money in an original bona fide principal amount of fifty thousand dollars ($50,000) or less, evidenced by a security document and secured by a lien upon real property located within this Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit.

41 P.S. § 101. Therefore, if a transaction is to qualify as a residential mortgage four elements must be present:

(1) an obligation to pay an original bona fide principal amount of $50,000 or less, (2) evidenced by a “security document,” (3) secured by a lien upon real property in Pennsylvania, and (4) containing two or fewer residential units or on which two or fewer residential units are to be constructed.

Anderson Contracting Co., 274 Pa.Super. at 18, 417 A.2d at 1229. Here, since the original obligation was $10,000, and there is only one residential unit involved, only elements two and three are at issue.

A security document is defined as, “a mortgage, deed of trust, real estate sales contract, or other document creating upon recordation a lien upon real estate.” 41 P.S. § 101. Beckett maintains that since a judgment note cannot be recorded it cannot be a security document, and therefore it cannot be a residential mortgage. However, section 601 of Act 6 permits the Secretary of Banking to “prescribe regulations to carry out the purposes of this [A]ct.” 41 P.S. § 601. Pursuant to this authority, the State Banking Department has promulgated several regulations to clarify various provisions of Act 6. The Department of Banking has ruled that the term “security document” shall include:

(ii) any document containing a confession of judgment which, when confessed, effects a lien upon real estate.

10 Pa.Code § 7.2.

Since the original judgment note contained a confession of judgment clause, Beckett’s confession of judgment effected a lien upon the property, thus making it a security document for purposes of Act 6 pursuant to the Banking Department’s regulation. Lastly, when the confession of judgment was recorded in the Allegheny County Prothonotary’s Office it created, upon such recordation, a lien upon real estate. 41 P.S. § 101. Accordingly, the requirements that the obligation be evidenced by a security document and be secured by a lien upon real property are fulfilled. Further, the requirements that a lien upon property be a “residential mortgage” within the provisions of Act 6 need not be met with absolute precision and are fulfilled as long as a party has a right to proceed against a certain piece of property to enforce an obligation. Anderson Contracting Co., 274 Pa.Super. at 19, 417 A.2d at 1281 (1979). We find that when the judgment note was confessed and recorded, it became a residential mortgage under Act 6 since Beckett could proceed against the property to enforce his obligation.

In light of our above discussion, we conclude that Beckett is a residential mortgage lender for purposes of Act 6. A residential mortgage lender is defined as, “any person who lends money or extends or grants credit and obtains a residential mortgage to assure payment of the debt ...” 41 P.S. § 101. Beckett originally loaned Mrs. Laux $10,-000.00, the terms of which were incorporated into a judgment note containing a confession of judgment clause. Subsequently, when Beckett confessed judgment on the note he obtained a residential mortgage to assure payment of the original obligation. Therefore, Beckett is a residential mortgage lender under Act 6.

A residential mortgage debtor for purposes of Act 6 is defined as:

a non-corporate borrower who is obligated to a residential mortgage lender to repay in whole or in part a residential mortgage, and a successor record owner of the property, if any, who gives notice thereof to the residential mortgage lender.

41 P.S. § 101 (emphasis added). Laux was not obligated to repay the original loan given to Mrs. Laux by Beckett, however, he may qualify as a residential mortgage debtor since he is a successor record owner. Beckett maintains that Laux could not be a residential mortgage debtor under Act 6 because he did not give Beckett notice of his ownership. However, since Act 6 contains no provisions as to the required form or method of providing notice and it is undisputed that Beckett was aware Laux had obtained ownership of the property, we conclude that notice, sufficient to satisfy Act 6, was achieved. It is well settled that “[p]roof that brings home knowledge of a fact to a person, if he will but use his senses and reasoning faculties, is in a great variety of cases held to be sufficient to affect him with notice.” Russeck v. Shapiro, 170 Pa.Super. 89, 91, 84 A.2d 514, 515 (1951) (quoting Butts v. Cruttenden, 14 Pa.Super. 449, 456 (1900)). Therefore, it is axiomatic that one who has actual knowledge of a fact is on notice of that fact. Thus, Laux as a successor record owner is a residential mortgage debtor under Act 6.

Having concluded that the confession of judgment became a residential mortgage under Act 6 we shift our focus to the specific protections to which Laux, as a residential mortgage debtor, was entitled.

Section 407 of Act 6 concerns confession of judgments and provides that until one initiates an appropriate action and proceeds to judgment under the Pennsylvania Rules of Civil Procedure he shall not have the right to levy, execute or garnish any judgment on confession. 41 P.S. § 407(a). This appropriate action shall be commenced by filing a complaint with the prothonotary. Pa.R.C.P. 2983. Pennsylvania Rule of Civil Procedure 2984 provides that the complaint shall include:

(1) the names of the parties to the confessed judgment which is the subject matter of the action and the court term and number, and the date and amount thereof;
(2) a copy of the notice required by the Act and the date it was sent;
(3) an itemization of the amount claimed to be due;
(4) a demand for the judgment required by the Act. Pa.R.C.P. 2984. See General Electric Credit Corp. v. Slawek, 269 Pa.Super. 171, 178-179, 409 A.2d 420, 423 (1979).
It is clear that the legislative purpose underlying this specific portion of Act 6 is to insulate residential real estate owners “from execution upon their property pursuant to arbitrary ¿nd capricious actions of creditors by confession of judgment.” Drum v. Leta, 354 Pa.Super. 448, 452, 512 A.2d 36, 38 (1986).
This court has held that a successor owner may resort to the protections of Pennsylvania Rule of Civil Procedure 3121 to attack any writ of execution of judgment where there is an effort to enforce a lien which is subject to Act 6. If the terre-tenant or real owner of the mortgaged real estate has no interest in the judgment entered in person-am against the obligor of the bond, how does he protect himself against the mortgagee’s attempt to enforce the judgment against the mortgaged real estate which he owns? The answer, of course, lies in the Rules of Civil Procedure which govern the enforcement of judgments. Pa.R.C.P. 3129 provides that no writ of execution to sell real estate shall issue upon a judgment without written notice to the owner or reputed owner of the real estate.[] ... Pa.R.C.P. 3121, moreover, contains the procedure by which a writ and/or levy can be set aside whether “(1) for a defect therein; (2) upon a showing of exemption or immunity of property from execution; or (3) upon any other legal or equitable ground therefor.” This remedy is peculiarly appropriate where, as in the instant case, the owner of the mortgaged real estate has no defense to the principal obligation secured by the mortgage and challenges only appellee’s present right to enforce the mortgage against the real estate.

Bank of Pennsylvania v. G/N Enterprise, Inc., 316 Pa.Super. 367, 372-373, 463 A.2d 4, 7 (1983) (citations omitted). Likewise, since Laux is the current real owner of the property and only contests Beckett’s present right to enforce the mortgage against the property, he pursued the appropriate, remedy under Pennsylvania Rule of Civil Procedure 3121 to set aside the writ of execution.

Laux argues, and we agree, that enforcing the confession of judgment against the property without complying with the provisions of Act 6 has denied him, (1) the right to receive notice pursuant to section 403 of Act 6, and (2) the right to be heard on his substantive defenses to enforcement of the writ of execution in accordance with section 407 of Act 6.

According to section 407(a) of Act 6, Beckett did not have the right to file a writ of execution against the property until he commenced an appropriate action under the Pennsylvania Rules of Civil Procedure and proceeded to a judgment or decree as in any original action. 41 P.S. § 407(a). Pursuant to Pennsylvania Rules of Civil Procedure 2981(b) and 2983, “[a] section 407(a) original action is governed by the assumpsit rules of civil procedure and is commenced by the filing of a complaint.” RCK, Inc. v. Katz, 331 Pa.Super. 163, 169, 480 A.2d 295, 298 (1984). Although Act 6 does not require that notice be given to the debtor prior to confessing judgment, notice under section 403 of Act 6 must be sent to the debtor prior to the initiation of the original action under section 407. General Electric Credit Corp., 269 Pa.Super. 171 at 179, 409 A.2d at 424; see also Pa.R.C.P. 2984(2). Thus, section 403 notice is a “post-confession/pre-execution notice.” Slawek, 269 Pa.Super at 179 n. 6, 409 A.2d at 424 n. 6. Here, since Laux was not the original debtor in this transaction, he would not be an original party defendant in the 407(a) action. 8 Goodrich Amram § 2983:2. However, because we have determined that Laux, as a successor record owner, is a residential mortgage debtor, he is entitled to notice of the 407(a) action. 8 Goodrich Amram 2d § 2983:2; see also 41 P.S. §§ 101, 403.

This original action furthers the legislative purpose of allowing debtors an opportunity to assert any and all potential claims and defenses. RCK, Inc., 331 Pa.Super. at 169, 480 A.2d at 298. Therefore, section 407(a) protects a debt- or’s residential property from abrupt foreclosures by requiring that prior to executing against a property, creditors must obtain two judgments: first, a confessed judgment and second, a judgment in an original action under section 407(a). Id., 331 Pa.Superior Ct. at 166, 480 A.2d at 296. Here, since Beckett did not obtain the second judgment as required under section 407(a), he should not have been allowed to execute against the property.

In general, the law does not favor confession of judgment provisions. Drum, 354 Pa.Super. at 452, 512 A.2d at 38. Moreover, “[bjecause a warrant of attorney authorizing confession of judgment can be an oppressive weapon, a judgment entered pursuant thereto can be accomplished only by strict adherence to the provisions of the warrant of attorney.” Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 384, 465 A.2d 5, 7 (1983) (citations omitted). Due to the potential for oppression inherent in a confession of judgment clause, we would be remiss to permit Beckett to execute against Laux’s property without compelling him to adhere to the strict procedural requirements of section 407(a).

In sum, Beckett, having previously confessed judgment, was required to: (1) send notice of the appropriate action to Laux pursuant to section 403 of Act 6, and (2) commence an original action and proceed to judgment in compliance with section 407(a) of Act 6, prior to executing against the property. See Pa.R.C.P. 2981-2986. Beckett’s compliance with Act 6’s provisions would have afforded Laux the right to receive notice, and the right to argue his claims and defenses in an original action. 41 P.S. §§ 403, 407.

Because Laux, being the successor record owner of the property, falls within the definition of a residential mortgage debtor pursuant to section 101 of Act 6, he has standing under Act 6 to contest Beckett’s writ of execution. Moreover, in Wm. Penn Park, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), which the trial court relied upon to conclude that Laux lacked standing, our supreme court held that, “a person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge.” Wm. Penn Park, Inc., 464 Pa. at 192, 346 A.2d at 280. Clearly, Laux, a successor owner of real estate, would be adversely affected by a party attempting to satisfy a $10,000.00 obligation by filing a writ of execution against the property he now owns.

Since we have determined that Laux has prevailed in this action he is entitled to recover costs in accordance with section 503 of Act 6. Section 503 provides:

§ 503. Reasonable attorney’s fees recoverable
(a) If a borrower or debtor, including but hot limited to a residential mortgage debtor, prevails in an action under this act, he shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred on his behalf in connection with the prosecution of such action, together with a reasonable amount for attorney’s fee.
(b) The award of attorney’s fees shall be in an amount sufficient to compensate attorneys representing debtors in actions arising under this act as provided in subsection (a) of this section. In determining the amount of the fee, the court may consider:
(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case.
(2) The customary charges of the members of the bar for similar services.
(3) The amount involved in the controversy and the benefits resulting to the client or clients from the services.
(4) The contingency or the certainty of the compensation.
(c) Any time attorneys’ fees are awarded pursuant to any provision of this act, a borrower or debtor shall not be entitled to duplicate recovery of attorneys’ fees under this section, sections 407 or 504 or any other provision of this act.

41 P.S. § 503.

Although the confession of judgment is still valid, Laux has effectively resisted Beckett’s current attempt to enforce that judgment against Laux’s property, and consequently, he has prevailed in this action. We have held that “a party prevails if he or she succeeds in obtaining substantially the relief sought.” Gardner v. Clark, 349 Pa.Super. 297, 302, 503 A.2d 8, 10 (1986). In Gardner, this court upheld a trial court’s award of counsel fees where the appellees successfully thwarted the appellant’s attempt to enforce a confessed judgment against their residential real estate. Id. Similarly, Laux is a prevailing party since he has achieved the same success as the debtor in Gardner. Thus, he is entitled to recover the reasonable costs and attorney’s fees connected with this action. 41 P.S. § 503.

The order of the trial court lifting the stay of execution and denying the motions to set aside the writ of execution, award attorneys’ fees and costs is reversed. The case is remanded for a hearing to determine the appellant’s reasonable attorney’s fees and costs incurred in connection with this action.

      . It is unclear how Beckett was notified that Laux had obtained ownership of the property, however, it is clear that Beckett was aware of Laux’s ownership.

      . In Anderson Contracting Co., this court relied upon the Banking Department’s other definition of a "security document” as dispositive of the issue that the installment land contract in that case qualified as a “security document" for the purposes of Act 6:

        Security document—The term, for purposes of the act is deemed to include the following:
      (i) An installment land contract, or lease purchase agreement. It shall also include any similar document, if it is a lease of real property where the lessee pays or agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the real property involved and it is agreed that the lessee will become, or for no other (or nominal) consideration has the option to become, the owner of the real property upon full compliance.
      10 Pa.Code § 7.2; Anderson Contracting Co., 274 Pa.Super. at 19, 417 A.2d at 1230.

      . Section 407(a) of Act 6 provides:
      As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings. Nothing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desire.
      41 P.S. § 407(a).

      . Pa.R.C.P. 3121 provides:
      Rule 3121. Stay of Execution. Setting Aside Execution.
      (a) Execution shall be stayed as to all or any part of the property of the defendant
      (1) upon written direction of the plaintiff to the sheriff;
      (2) upon the entry of bond with the prothonotary, by any person or party in interest, with security approved by the prothonotary, in the amount of plaintiffs judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, and conditioned to pay the amount due within ninety (90) days of the entry of bond, unless the time for payment be further extended by the court;
      (3) pending disposition of a property claim filed by a third party;

        (4) upon a showing of exemption or immunity of property from execution;
      (5) upon a showing of a right to a stay under the provisions of an Act of Congress or any Act of Assembly.
      (b) Execution may be stayed by the court as to all or any part of the property of the defendant upon its own motion or application of any party in interest showing
      (1) a defect in the writ, levy or service; or
      (2) any other legal or equitable ground therefor.
      (c) In an order staying execution the court may impose such terms and conditions or limit the stay to such reasonable time as it may deem appropriate.
      (d) The court may on application of any party in interest set aside the writ, service or levy
      (1) for a defect therein;
      (2) upon a showing of exemption or immunity of property from execution, or
      (3) upon any other legal or equitable ground therefor.
      (e) All objections by the defendant shall be raised at one time.
      (f) After the termination of a stay, sale may be had without reissuance of the writ.
      Pa.R.C.P. 3121 (notes omitted).

      . Pa.R.C.P. 3129 has been rescinded, and replaced by three new rules: Pa.R.C.P. 3129.1, 3129.2, 3129.3. However, the three new rules serve primarily the same purpose as the old rule: no sale of real property upon a writ of execution shall be held until the plaintiff has filed with the sheriff the affidavit required by Pa.R.C.P. 3129.1(b), and given written notice to the owner or reputed owner. See Pa.R.C.P. 3129.1 and 3129.2. Consequently, the rationale set forth in G/N Enterprises, supra, is not vitiated by the rescission and replacement of Pa.R.C.P. 3129.

      . Laux contends that he has meritorious defenses to enforcement of the writ of execution. We will not address the merits of Laux’s assertions since they could be dealt with in a section 407(a) original action.