author: HESTER, Judge:

text:
    441 A.2d 1321
    SECURITY BANK AND TRUST COMPANY, Appellant, v. POCONO WEB PRESS, INC.
    Superior Court of Pennsylvania.
    Argued March 9, 1981.
    Filed Feb. 26, 1982.

      William H. Robinson, Jr., Stroudsburg, for appellant.
    Charles P. Eyer, Jr., Stroudsburg, for Lawton-Huffman, participating party.
    Mark S. Love, Stroudsburg, for Marshalls, participating party.
    Before HESTER, DISALLE and MONTGOMERY, JJ.
   HESTER, Judge:

This appeal involves what appears to be a question of First impression in this Commonwealth, to-wit:

“Under the Mechanics’ Lien Law of 1963, Act of August 24, 1963, P.L. 1175, No. 497, as amended, 49 P.S. Section 1101 et seq, if a contractor files a waiver of liens and commences work on a structure prior to the recording of a mortgage, may other contractors who thereafter contract directly with the owner of the property obtain priority over the mortgage, on the basis of a Mechanics’ Lien claim, in the distribution of the proceeds of a Sheriff’s Sale?”

The basic facts are not in dispute. On September 14, 1977, Robert N. Hartman, a foundation contractor, filed a Waiver of Liens in the Prothonotary’s Office of Monroe County, waiving for himself and for his subcontractors the right to file any Mechanics’ Lien claims concerning the construction of a commercial building. On or about the same date, “visible commencement” of the excavation work for the commercial building began on property owned by Pocono Web Press, Inc. On October 6, 1977, appellant Bank recorded a construction mortgage from Pocono in the amount of $310,000.00.

Appellee Lawton-Huffman, Inc. entered into a separate and independent contract with the owner, Pocono, to provide heating and air conditioning services and materials. Lawton began work on December 1, 1977, finished its work on December 29, 1977, and was not paid. Lawton filed a Mechanics’ Lien on March 9, 1978 in the amount of $6,095.00 against Pocono.

Appellee Marshalls Creek Electric, Inc. entered into a separate and independent contract with the owner to provide services and materials. Marshalls began work on November 12, 1977, finished on January 4, 1978, and was not paid. Marshalls subsequently filed a Mechanics’ Lien claim in the amount of $1,500.00 against Pocono.

Both mechanics’ lien claims were perfected and taken to judgment in due course, and not challenged below in any respect, except as to their priority over the construction mortgage.

A Sheriff’s Sale was held on June 20, 1979 on the basis of a default judgment obtained by the Bank in its mortgage foreclosure action against Pocono. The Bank made the highest bid of $20,000.00 plus costs, and when the Sheriff published his schedule, by which he indicated that costs had been collected and the balance covered by the receipt of counsel for the Bank, appellees Lawton and Marshalls filed written exceptions, requesting the appointment of an auditor pursuant to Pa.R.C.P. 3136.

The auditor filed a report, including findings of fact and conclusions of the law, granting appellees’ exceptions to the proposed Sheriff’s distribution, finding that the Mechanics’ Lien claims of appellees were entitled to priority over the Bank’s mortgage. The Court of Common Pleas of Monroe County approved the auditor’s report by Order dated April 10, 1980.

The Bank advances two alternative arguments in support of its contention that the lien of its mortgage is entitled to priority over appellees’ mechanics’ liens. First, the Bank contends that appellees’ claims should be subordinated since they had notice of the Bank’s mortgage. Secondly, the Bank contends that the Mechanics’ Liens should be subordinated to its mortgage since both appellees contracted directly and independently with the owner and did not perform any work under the original contract with Hartman.

We disagree and, therefore, affirm the lower court’s order.

First, the Bank concedes that both appellees are “Contractors”, as defined by 49 P.S. Section 1201(4), as opposed to “Subcontractors”, as defined by 49 P.S. Section 1201(5).

Since both appellees are “contractors” and since both appellees performed labor and services relating to the “erection and construction” (49 P.S. Section 1201(10)) of an “improvement” (49 P.S. Section 1201(1)) for the owner of the property, both appellees have a right to a lien pursuant to Article III of the Act, 49 P.S. Section 1301 et seq.

However, a claimant (contractor or subcontractor) may waive his right to file a lien pursuant to Article IV of the Act, 49 P.S. Section 1401 et seq.

Section 401 of the Act states:

“A contractor or subcontractor may waive his right to file a claim by a written instrument signed by him or by any conduct which operates equitably to estop such contractor or subcontractor from filing a claim.”
49 P.S. Section 1401.

Section 402 of the Act states:

“A written contract between the owner and contractor or a separate written instrument signed by the contractor, which provides that no claim shall be filed by anyone, shall be binding; but the only admissible evidence thereof, as against a subcontractor, shall be proof of actual notice thereof to him before any labor or materials were furnished by him; or proof that such contract or separate written instrument was filed in the office of the prothonotary prior to the commencement of the work upon the ground or within ten days after the execution of the principal contract or not less than ten days prior to the contract with the claimant sub contractor, indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and owner as defendant...”
49 P.S. Section 1402.

The priority of the lien is determined by Section 508 of the Act, which states:

“The lien of a claim filed under this act shall take effect and have priority: (a) in the case of the erection or construction of an improvement, as of the date of the visible commencement upon the ground of the work of erecting or constructing the improvement; ...”
49 P.S. Section 1508.

Section 402 of the Act, 49 P.S. Section 1402, is not applicable to the instant case since Hartman’s waiver of liens, which was filed on September 14, 1977, waived the right to file a Mechanics’ Lien claim only for himself and his “subcontractors”. The Bank concedes that the appellees are not “subcontractors”.

Concerning Section 401 of the Act, 49 Pa. Section 1401, it is clear that neither appellee explicitly waived its right to file a claim by any written instrument. The question thus becomes whether there was “. .. any conduct which operates equitably to estop such contractor or subcontractor for filing a claim”.

In Wood v. United States Steel Corporation, 383 Pa. 158, 118 A.2d 199, 200 (1955), the Supreme Court stated “. . . that in the absence of an express covenant not to file a lien, the implied covenant not to do so must be so clearly stated that the mechanic or materialman cannot fail to understand it. [Citations omitted].”

In any event, in the instant case, we must assume that the Mechanics’ Liens of both appellees are valid and that neither appellee waived its right to file a claim, since the Bank did not contest the validity of either Mechanics’ Lien claim, except as to their priority.

Prior decisions of this Court have held that, since Mechanics’ Liens “. . . are in derogation of the common law and since they effectively represent a special remedy in favor of a unique class of creditors, our Court [sic] have generally reviewed such claims with a strict construction of the statute which created them. [Citations omitted]” Sampson-Miller v. Landmark Realty Company, 224 Pa.Super. 25, 303 A.2d 43 (1973).

In Trustees of C. I. Mortgage Group v. Stagg of Huntington, Inc., 247 Pa.Super. 336, 372 A.2d 854 (1977), reversed 484 Pa. 464, 471, 399 A.2d 386, 389 (1979), the Supreme Court reversed a decision of this Court holding that we had improperly addressed an issue concerning the priority of a Mechanics’ Lien claim, since the lien at issue was invalid due to a stipulation against Mechanics’ Liens. Clearly, the instant case is distinguishable, since the Bank does not contest the validity of the liens, but only their priority. Accordingly, we only address that issue.

We hold that the language of Section 508 of the Act, 49 P.S. Section 1508, is so clear and unmistakable that there can be no question that the Mechanics’ Liens of appellees are entitled to priority over the Bank’s mortgage. Appellees’ lien attached “. . . as of the date of the visible commencement upon the ground of the work of erecting or constructing the improvement”, on or about September 14, 1977, which was prior to the recording of the Bank’s mortgage on October 6, 1977. The Bank does not contend that the mortgage was recorded prior to the “visible commencement upon the ground of the work”.

Our decision is consistent with our prior decision in Mar Ray, Inc. v. Schroeder, 242 Pa.Super. 14, 17, 363 A.2d 1136, 1137 (1976), in which we held that a sub-contractor’s allegation, that a Mechanics’ Lien claim was filed pursuant to a second contract which, unlike the first contract with the initial general contractor, did not contain a waiver of lien, was sufficient to withstand preliminary objections, by stating, “If the lien claim was filed pursuant to a second contract which contained no waiver, it appears that appellant would be entitled to file the lien claim [Citations omitted].”

We are not unmindful of the plight of the Bank in this matter. In its Brief, appellee/Lawton contends:

“It would be well to remember that the predicament of the Bank in this case is largely self-created. It complains it could not guard against the Mechanics’ Liens arising from contracts made after the recording of its mortgage. But it could have insisted on proof that work had not commenced before making its loan. It could have inspected the sight. More importantly, if its system for advancing money had involved some simple method of verification, there would have been no Mechanics’ Liens since all of the contractors would have been paid.”

However, we realize that it may be extremely burdensome for a lending institution to inspect a construction site on a daily basis, so as to absolutely preclude any “contractor” from performing any work, separately and directly for the owner, independent of the original construction contract. Mindful as we are, we cannot address this policy consideration on the basis of the clear language of Section 508 of the Act, 49 P.S. Section 1508.

Order affirmed.

DiSALLE, J., did not participate in the consideration or review of this case.

      . The auditor took judicial notice of the claims, without objection, and counsel for the Bank stipulated that all of the facts in the claims were true, with a reservation concerning the priority issue.

      . The Bank does not contend that the Mechanics’ Liens are invalid or that appellees are bound by Hartman’s Waiver of Liens.

      . Apparently, Hartman, the foundation contractor, was supposed to have been the “general contractor” for the entire project but he was not able to obtain appropriate bonding. Subsequently, the owner, Pocono, entered into separate and independent contracts with appellees.

      . Since the relevant events in this case occurred prior to the enactment of the Judicial Code, we do not consider the applicability of 42 Pa.C.S.A. Section 8141, effective June 27, 1978.

      . We note that Section 402 of the Act, as well as other Sections of the Act, makes reference to “the contractor”, and “the principal contract” which might indicate that the General Assembly contemplated that there would only be one “contractor” concerning the erection and construction of an improvement. However the bank concedes that both appellees are “contractors”, as defined by the Act.

      . But see the Statutory Construction Act of 1972, 1 Pa.C.S.A. Section 1928(a) which states:
      “The rule that statutes in derogation of the common law are to be strictly construed, shall have no application to the statutes of this Commonwealth enacted finally after September 1, 1937.”

      . We have been advised that the other issue raised by the Bank on appeal, concerning a Commonwealth corporate tax claim against Pocono, has been resolved and rendered moot.


source: Caselaw Access Project

license: Public Domain

text:
    441 A.2d 1324
    PECOT, INC. v. Richard SIRIANNI, d/b/a Le Bistro Restaurant, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1981.
    Filed Feb. 26, 1982.
    Petition for Allowance of Appeal Granted June 30, 1982.

      Nicholas J. Scafidi, Philadelphia, for appellant.
    Joan Saltzman, Philadelphia, for appellee.
    Before HESTER, DISALLE and MONTGOMERY, JJ.
   HESTER, Judge:

The appellant, Richard Sirianni, is the operator and sole stockholder of Le-Bistro Restaurant in Philadelphia. In 1978, he employed Hugh Zimmers, an architect, for the purpose of designing a glass enclosure for an outdoor patio on the restaurant’s premises.

In the Spring of 1978, the appellant met with Putnum Stow, an employee of E.W. Bleecker & Associates. E. W. Bleecker & Associates had its principal office in Bryn Mawr, Pennsylvania. Shortly after that meeting, a letter agreement was sent by E. W. Bleecker to appellant confirming the terms of their oral agreement for the construction and purchase of a skylight roof system. E. W. Bleecker & Associates were manufacturer’s representatives for the appellee, Pecot, Inc.

At the time the appellant signed the letter agreement, he was aware that the appellee was an Oklahoma-based corporation which would manufacture the custom-made skylight roof system.

In June of 1978, the appellant met again with either Bleecker or Stow for the purpose of changing the roof system from tinted to clear glass. A letter dated June 20, 1978 was mailed by the appellee in Oklahoma to the appellant in Pennsylvania confirming the modification. Thereafter, modified shop drawings prepared by the appellee were approved and returned by the appellant’s architect on or about July 1, 1978.

The appellant paid only a portion of the purchase price and sued the appellee, Bleecker and Zimmer during the March Term, 1979 in Pennsylvania for the alleged defective design and construction of the roof system. In June, 1979, the appellee filed suit in Oklahoma for the unpaid purchase price, acquired a default judgment for $16,215.50 and subsequently transferred the judgment to Pennsylvania.

On December 21, 1979, the appellant filed a Petition to Strike and/or Open Judgment in the Court of Common Pleas of Philadelphia County on the grounds that the Oklahoma judgment was not entitled to full faith and credit in Pennsylvania due to the fact that the Oklahoma court did not have personal jurisdiction over the appellant. The appellant’s petition was denied on September 17, 1980 and the appellant filed the within appeal. The appellee presumably argues that the appellant is subjected to the in personam jurisdiction of the Oklahoma courts under the purview of that state’s long-arm statutes. 12 O.S.1971, § 187 and 12 O.S.1971 § 1701.08.

A non-resident defendant must conduct some activity that amounts to minimum contact with the forum state and thereby permits that state’s courts to exercise personal jurisdiction without being in violation of the due process clause of the Fourteenth Amendment. International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). We must, therefore, decide whether the appellant’s behavior with respect to the transaction entered into with the appellee amounts to minimum contacts with the State of Oklahoma. The search for minimum contacts necessarily entails a perusal of the facts of each case and a comparison with prior decisions rendered on similar facts. Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Okl.App. Div. 2, 1974).

In Vacu-Maid, Inc., supra, the plaintiff was an Oklahoma-based manufacturer which instructed its agent to travel to North Carolina and to persuade the defendant to sell the plaintiff's built-in cleaning systems. The defendant travelled to Oklahoma to view the plaintiff’s plant in order to make a more intelligent decision on whether to sell the systems. The defendant decided to sell. He would telephone orders to the plaintiff in Oklahoma; the plaintiff, in turn, would ship the systems FOB. This method of conducting business was carried on for several years until the plaintiff sued the defendant in 1972 in the Oklahoma courts for the balance due on an open account. The defendant was served in South Carolina. The Oklahoma trial court dismissed the lawsuit for lack of in personam jurisdiction.

In refusing to reverse on appeal, the Vacu-Maid court was particularly influenced by the traditional portrait painted there of the aggressive seller and passive buyer. The plaintiff’s agent solicited the defendant’s expertise in North Carolina; the agent visited North Carolina annually; and, shipments originated in Oklahoma and traversed to North Carolina. Conversely, the defendant was not the initiator. He merely responded to the efforts initiated by the plaintiff. The Vacu-Maid court did not find the defendant’s repeated phone calls and single visit to Oklahoma to be evidence of aggressive behavior that would satisfy minimum contact standards.

The behavior of the appellant here is even less aggressive than that taken by the defendant-buyer in Vacu-Maid, Inc. supra. The appellant did not visit Oklahoma for any reason; nor did he make any phone calls prior to delivery of the skylight system. We would be hard-pressed, then, to rule that our appellant-buyer performed minimum contacts with Oklahoma when the actions of a more aggressive buyer were not sufficient to meet minimum contact standards in VacuMaid, Inc. We do not agree, then, with the lower court’s conclusion that the appellant was an active purchaser.

A review of the remaining cases supports our ruling. In CMI Corporation v. Costello Construction Company, 454 F.Supp. 497 (D.C.Okl.1977), the non-resident defendant was not subjected to the jurisdiction of the Oklahoma court despite the fact that he had visited Oklahoma on one occasion to inspect rental equipment and on another occasion to discuss the dispute that had arisen between the parties. Once again, we find the contacts of the appellant with the forum state to be less intrusive than those of the defendant in CMI, supra.

The lower court felt bound by the Court’s holding in Yankee Metal Products Company v. District Court of Oklahoma, 528 P.2d 311 (Okl.1974). We recognize that the non-resident defendant’s actions in Yankee Metal, supra, were similar to those taken by the appellant in that neither visited the forum state and both ordered a custom made product and participated in its design. Nevertheless, there was one distinctive set of actions taken by the defendant in Yankee Metal, supra, that we do not find in the dispute before us. The Yankee Metal defendant made direct contacts to the plaintiff-seller in the forum state via the telephone. The appellant and his architect agent contacted a sales representative in Pennsylvania. The discussions that formed and altered the contract occurred in Pennsylvania. The appellant did not make a direct call to the appellee in Oklahoma until after delivery of the skylight roof system. We find this to be a significant enough distinction to skirt the paraméter set by Yankee Metal, supra.

Long-arm statutes were designed to provide an effective and convenient means of redress for resident plaintiffs who happen to experience the adverse effects of a non-resident defendants’ interstate activities; they were designed to warn non-resident defendants that they could not escape the consequences of litigation in a jurisdiction where they voluntarily chose to act. In short, they were designed to allay hardship and promote fairness.

The appellant has convinced us that his performance prior to and during the agreement with the appellee did not reach the minimum contact level. Long-arm statutes were not designed to accommodate resident plaintiffs at the expense of a non-resident defendant whose activities delicately and indirectly reach the forum state’s borders.

We reverse.

DiSALLE, J., did not participate in the consideration or review of this case.


author: CAVANAUGH, Judge:

text:
    441 A.2d 1327
    COMMONWEALTH of Pennsylvania, v. Matthew FREEMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Feb. 26, 1982.

      John L. Lachall, West Chester, for appellant.
    Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgments of sentence imposed after a Chester County jury convicted appellant, Matthew Freeman, of rape, involuntary deviate sexual intercourse, burglary and terroristic threats. On August 17, 1978, Georgette Eachus was allegedly raped and orally sodomized at knifepoint by a male she claimed to have met the previous day. Appellant, found that date in possession of a stolen vehicle, was charged with the instant crimes on August 18, 1978. After the denial of appellant’s suppression motions, a jury trial ensued at which appellant, testifying in his own defense, argued that his encounter with Ms. Eachus was consensual. Following his conviction, appellant raised, and the trial court rejected, myriad post-verdict claims, seven of which are also raised in this appeal. We consider them seriatim and affirm.

Appellant first challenges the suppression court’s conclusion that he lacked standing to object to the search of the stolen car in which he was found. Two searches occurred here: the first was a warrantless search on August 17, 1978, during which police discovered, but did not seize, a knife; that knife was seized during a second search, conducted with a warrant, on August 18, 1978. In this appeal, appellant objects to the court’s ruling only as to the first search. Essentially, appellant argues that the decision of United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) grants him standing to object to the search of the car in his possession on August 17, notwithstanding the fact that his possession of that car was unlawful. He thus urges us to overturn the lower court’s allegedly erroneous standing ruling and remand this case for purposes of determining the legality of the warrant-less search.

Although not dispositive of the particular standing issue presented by this appeal, we find appellant’s reliance on Jones to be inapposite. The Jones court conferred “automatic standing” on defendants charged with possessory offenses and, alternatively, permitted anyone “legitimately on premises” to challenge the legality of a search therein. The viability of Jones, however, was at best questionable at the time of appellant’s suppression hearing. The “automatic standing” doctrine of Jones was eroded, although not explicitly repudiated, in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and any residual significance of that rule was extinguished in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Moreover, in Rakas v. Illinois, 439 U.S. 128, 142, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 400 (1978), rehearing denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), the Court rejected the second prong of Jones when it found that “the phrase ‘legitimately on premises’ . . . creates too broad a gauge for measurement of Fourth Amendment rights.” It is now settled that entitlement to the exclusionary rule will be available only to defendants able to demonstrate that their legitimate expectation of privacy was invaded by the allegedly illegal search and seizure. See Commonwealth v. Sell, 288 Pa.Super. 371, 432 A.2d 206 (1981) (adopting the Salvucci-Rakas test; defendant had no expectation of privacy when he placed firearms on a shelf commonly used by fellow employees as a storage area).

We find it difficult, if not impossible, to imagine a situation where one whose presence in an automobile is unlawful can have a legitimate expectation of privacy so as to entitle him to Fourth Amendment protection when that automobile is the object of a search. Although expressly not deciding whether appellant had standing to challenge the admissibility of physical evidence seized from a stolen truck, Judge Popovich, writing for the majority in Commonwealth v. Prengle, 293 Pa. Super. 64 n.3, 437 A.2d 992 at 994 n.3 (1981) noted “. . . because appellant’s presence in the truck was unlawful, any claim to a reasonable expectation of freedom from government intrusion into a stolen vehicle would be ludicrous.

We need not, however, employ the Salvucci-Rakas analysis in order to conclude that the lower court properly determined that appellant lacked standing to object to the search of the stolen car in which he was found. The Supreme Court in Rakas made clear that, even under Jones, appellant would not have been permitted to challenge the lawfulness of the car search. In rejecting the holdings of the very cases which appellant herein cites as supporting authority, the court stated:

The Court in Jones was quite careful to note that “wrongful” presence at the scene of a search would not enable a defendant to object to the legality of the search. 362 U.S. at 267, 80 S.Ct. 725 [at 734], 4 L.Ed.2d 697, 78 A.L.R.2d 233. The Court stated: “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” Ibid, (emphasis added). Despite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e.g., Cotton v. United States, 371 F.2d 385 (CA9 1967); Simpson v. United States, 346 F.2d 291 (CA10 1965).

439 U.S. at 141 n.9, 99 S.Ct. at 429 n.9, 58 L.Ed.2d at 399-400 n.9. Because the lower court’s ruling is unassailable under both Salvucci-Rakas and Jones, we find appellant’s claim to be meritless.

Appellant next contends that the suppression court erred in finding probable cause for the issuance of a search warrant pursuant to which his tan trousers were seized. State Trooper Richard O’Brien, the police affiant who obtained the warrant, based his probable cause claim on several factors: his conversation with the victim in the evening of August 17 during which she described the male who raped her that morning and his attire, most notably his tan trousers; his personal observation four hours later of appellant whose appearance seemed to match the description given by the victim; his further observation that appellant was wearing tan trousers; his information that appellant was wearing tan trousers when arrested by Schylkill Township police earlier on August 17; his knowledge, obtained from a Captain Brockett, that the tan trousers were presently being stored in the identification room at Chester County Prison Farms where appellant was incarcerated. Based on the foregoing information, Trooper O’Brien stated that he believed the trousers to be of possible evidentiary value in the rape investigation, thereby justifying the issuance of a warrant for their seizure.

Claiming the inadequacy of probable cause to search, appellant argues that (1) the warrant affidavit did not indicate facts supporting the affiant’s belief that information provided by the victim and Captain Brockett was reliable as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and (2) the victim’s description of her assailant was too general to conclude that appellant was the same male.

While individual portions of the affidavit might not alone supply probable cause, we find that a consideration of the affidavit in its entirety, including the affiant’s personal observations, supports the magistrate’s issuance of the search warrant. Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981) (statements of different informants may support each other when taken together). To dissect this affidavit in the manner urged by appellant would involve us in the type of hypertechnical evaluation which our courts have purposely long avoided. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965). Since a common-sense reading of the affidavit supports the conclusion that appellant was the victim’s likely assailant and that his tan trousers were to be found at the Chester County Prison Farms, the court properly denied appellant’s motion to suppress the evidentiary usage of the trousers. We further reject, as it is unsupported by the record, appellant’s additional charge that the prison search was unlawfully executed.

In his third claim of error appellant contends that the trial court should have granted his request for individual voir dire to explore racial prejudices of the prospective jury panel. Appellant maintains that where, as here, a black defendant is accused of sex crimes against a white victim, individual voir dire is the only means by which to obtain racially impartial factfinders. We fail to find error in the court’s refusal to allow individual questioning and, furthermore, cannot agree with the presumption of racial prejudice inherent in appellant’s argument.

To secure a fair and impartial jury, a court may, in its discretion and in a non-capital case, grant the right to conduct individual voir dire of prospective jurors. Pa.R. Crim.P. 1106(e); Commonwealth v. Mayo, 272 Pa.Super. 115, 119, 414 A.2d 696, 698 (1979); Commonwealth v. Gore, 262 Pa.Super. 540, 557, 396 A.2d 1302, 1310 (1978). Appellant has failed to present any concrete evidence that this case involved especial racial considerations which might best be dealt with through individual questioning. Additionally, he does not claim that the actual panel chosen was racially biased against him. Rather, although he admits that he was permitted by the court to probe any racial bias, he complains that the jurors were constrained by peer pressure implicit in collective voir dire to admit to such.

In Commonwealth v. Walker, 275 Pa.Super. 311, 316, 418 A.2d 737, 740 (1980), our court rejected a similar contention: “Appellant’s claim of prejudice, i.e. a greater unwillingness to admit bias in a group as opposed to an individual questioning, is speculative at best.” Under these circumstances, we cannot conclude that the trial of crimes involving defendants whose race differs from that of their alleged victims automatically triggers the need for individual voir dire or that such a ruling is more compelling in sexual prosecutions. Cf. Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981) (sexual and non-sexual crimes must be treated alike in deciding whether evidence of prior criminal activity should be admitted).

Appellant further contends that the court improperly admitted testimony by the victim that she reported the alleged rape to others and also statements by the victim’s sister-in-law confirming that the victim related the incident to her immediately following its occurrence. The lower court held, and we believe properly so, that such testimony was admissible to show a “prompt complaint” of the alleged crimes. Of course, the fact that a victim made a prompt complaint is no longer required to sustain a rape conviction, See 18 Pa.C.S.A. § 3105. It is nonetheless competent evidence, properly admitted when limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged. Commonwealth v. Green, 487 Pa. 322, 328, 409 A.2d 371, 374 (1979); Common wealth v. Pettiford, 265 Pa.Super. 466, 468, 402 A.2d 532, 533 (1979); Commonwealth v. Sanders, 260 Pa.Super. 358, 365, 394 A.2d 591, 594 (1978). See generally 4 Wigmore, Evidence §§ 1134-1140 (Chadbourn rev. 1972). In keeping with this rule, our courts have disallowed “prompt complaint” testimony which has exceeded the permissible limits. Commonwealth v. Green, supra, (all encompassing statement by detective inadmissible since it goes beyond identifying complaint and its nature); Commonwealth v. Pettiford, supra, (court erred in admitting, as proof of “prompt complaint,” testimony of three witnesses one of whom recounted the victim’s rape in great detail). The challenged testimony of the victim and her sister-in-law, introduced solely to establish that Ms. Eachus immediately reported that she was raped, was neither detailed nor protracted.

In a prosecution for rape, fresh complaints made by the alleged victim, consistent with her testimony at trial, benefit from a special evidential rule that makes evidence thereof admissible in the Commonwealth’s case in chief. The rationale for this rule is best understood by reference to its background.

Evidence of the alleged victim’s “hue and cry” following rape has long been admissible at common law. Hue and cry is thought to follow rape like smoke follows fire. Proof of the former is circumstantial evidence of the latter. Conversely, unexplained lack of evidence of hue and cry that one might expect to ensue from rape casts doubt on the existence of the rape itself.

Fresh complaints of rape, undetailed, are a particular form of hue and cry that provides significant circumstantial support for the alleged victim’s subsequent testimony that she was raped. Such fresh complaints are classified evidentially as prior consistent statements.

The general rule is that a prior consistent statement of a witness is admissible only after the witness’ testimony has been attacked, expressly or impliedly, as recent fabrication. See Commonwealth v. Gore, 262 Pa.Super. 540, 549-550, 396 A.2d 1302, 1306-1307 (1978). However, in the special circumstances of a rape case the testimony of a woman that she was raped is automatically vulnerable to attack by the defendant as recent fabrication in the absence of evidence of hue and cry on her part. This justifies a special evidential rule permitting introduction of her fresh complaints in the prosecution’s case in chief.

Because evidence that fresh complaints were made by Ms. Eachus with respect to the rape with which the appellant is charged was offered as corroborative, not substantive, evidence, it is not hearsay. Thus, appellant’s hearsay objection, which he did not voice at trial, but now makes on appeal, lacks merit. Appellant’s objection that the evidence was self-serving is also without merit. That evidence is self-serving is not a ground for its exclusion.

Similarly meritless is appellant’s fifth contention that the trial court should have declared a mistrial when the victim testified that she viewed appellant in a line-up on August 28, 1978, thereby impermissibly suggesting his involvement in other crimes. The reference arose during questioning of the victim by the prosecutor regarding appellant’s changed appearance on August 28, eleven days after the alleged rape. In his examination, the prosecutor was careful to avoid specific mention that the viewing occurred during the course of a line-up. After the victim mentioned the line-up, in an unresponsive answer, appellant made an objection which was immediately sustained. Appellant still contends that the mere reference to the line-up irrevocably prejudiced him and requires the grant of a new trial.

We do not agree that the passing mention of a line-up mandates reversal of appellant’s conviction. Rather, the “controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” See Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972) (victim’s viewing of police photographs of appellant). Here, the jurors had no reason to believe that appellant had participated in crimes other than the instant offense. Simply because the August 28 line-up was in fact held for purposes of possible identification of appellant in connection with unrelated offenses does not justify a conclusion that the jurors could have, or must have, inferred this from the victim’s testimonial reference. Appellant got immediate relief when his objection was sustained following the remark and no further line-up mention was made. The court did not abuse its discretion in denying appellant’s further request for a mistrial.

Appellant’s sixth contention is that, before the jury began its deliberations, the court should have instructed them pursuant to the American Bar Association Standards Relating to Trial by Jury which were adopted by the Pennsylvania Supreme Court in Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). That charge is appropriately given only when juries are deadlocked and also when the court determines, in its discretion, that such a charge would not be unduly coercive. Commonwealth v. Santiago, 492 Pa. 297, 303-304, 424 A.2d 870, 873 (1981). The coerciveness which might arguably surround a Spencer charge could only increase if it were to be given prior to any deliberations at all. Since appellant’s request for a Spencer charge was prematurely proffered, it was properly refused.

Finally, appellant protests the court’s refusal to grant two of his requested points for charge. One, regarding the resolution of two equally reasonable yet inconsistent explanations, was covered by the court’s instructions on the credibility of witnesses and the Commonwealth’s burden of proof. Where the substance of the requested charge is adequately and clearly conveyed, the court’s failure to give the verbatim instruction offered by appellant is not error. Commonwealth v. Rhem, 283 Pa.Super. 565, 576-77, 424 A.2d 1345, 1351 (1980). Nor did the court err in failing to instruct the jurors that appellant, who testified in his own defense at trial, was under no legal obligation to have done so. Appellant’s proposed charge would have been tantamount to suggesting to the jurors that they draw a favorable inference from his election to take the stand. While no adverse inference can be drawn from appellant’s failure to testify, there is no concomitant principle which supports appellant’s theory.

Judgment of sentence affirmed.

      . Charges relating to the automobile theft were severed from the instant offenses pre-trial at appellant’s request.

      . At no time during these proceedings has appellant disputed that he unlawfully possessed the car.

      . We are not troubled by the fact that the victim’s sister-in-law testified as to whom the victim identified as her assailant. Though evidence of identification of the defendant is beyond the scope of the special rule admitting fresh complaints, it is inconsequential in this case because an encounter between the prosecuting witness and appellant is not disputed. The issue at trial was whether or not it was consensual.

      . If the alleged victim does not testify that she was raped, then evidence of her fresh complaints cannot corroborate such testimony and thus is not admissible under this special evidential rule. However, fresh complaints may sometimes qualify as excited utterances and be admitted as substantive evidence as an exception to the hearsay rule. See Commonwealth v. Petti ford, supra. Because of our disposition of this issue, we need not determine whether the herein testimony would also be admissible under the “excited utterance” exception to the hearsay rule.

      . Although appellant raised a post-verdict challenge to the suppression court’s denial of his motion to suppress the victim’s line-up identification on the grounds that the line-up was unduly suggestive, he has not made a similar claim in this appeal.

      . Standard 15-4.4 of the American Bar Association Standards for Criminal Justice, Trial by Jury, approved August 9, 1978, provides:
      Standard 15-4.4. Length of deliberations; deadlocked jury (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
      (i) that in order to return a verdict, each juror must agree thereto:
      (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

        (iii) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
      (iv) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
      (v) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
      (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
      (c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.


text:
    441 A.2d 1334
    HOUSTON-STARR COMPANY, a corporation, Appellant, v. VIRGINIA MANSIONS APARTMENTS, INC., a corporation, and Robert O. Lample, Trustee under a Trust Agreement dated September 1, 1979 and known as the Sumland Properties Trust.
    Superior Court of Pennsylvania.
    Argued April 15, 1981.
    Filed Feb. 26, 1982.

      John A. Metz, Jr., Pittsburgh, for appellant.
    Stanley E. Levine, Pittsburgh, for appellees.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   CAVANAUGH, Judge:

The appellant, Houston-Starr Company, filed a complaint in equity against the appellees, Virginia Mansions Apartments, Inc. and Robert O. Lampl. The appellant also caused a lis pendens to be indexed against the property of Robert Lample, one of the appellees herein.

The appeal must be quashed as it is from an interlocutory order. “ ‘Finality’ exists when the practical effect of an order is to put the defendant out of court, or otherwise terminate the litigation by prohibiting either party from proceeding with the action.” Balter v. Balter, 284 Pa.Super. 350, 354-55, 425 A.2d 1138, 1140 (1981). See also Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 420 A.2d 620 (1980); Turner v. May Corporation, 285 Pa.Super. 241, 427 A.2d 203 (1981). The order in the instant case struck the lis pendens against Mr. Lampl’s property but the equity action proceeds. The cause of action in equity is governed by the Pennsylvania Rules of Civil Procedure, Rules 1517, 1518 and 1519 dealing with the adjudication, exceptions and final decree.

In the instant case the court below filed an opinion on the same date it entered the order striking the lis pendens. Although not so captioned, we may treat the opinion as an adjudication, which would trigger Pa.R.C.P. 1518 dealing with exceptions. Appellant did not file exceptions to the adjudication and accordingly, “matters not covered by exceptions are deemed waived, unless prior to final decree, leave is granted to file exceptions raising these matters.” Appellant not only ignored Pa.R.C.P. 1518, but also Pa.R. C.P. 1519 which provides that: “(a) if no exceptions are filed within the ten (10) day period, the decree nisi shall be entered by the prothonotary on praecipe as the final decree.” In this case, all that the appellant did after the filing of the opinion and order of September 30, 1980, was to file an appeal to this court. The case of Taylor v. Buterbaugh, 421 Pa. 10, 11, 218 A.2d 731, 732 (1966) is applicable to the matter before us. The court in that case stated:

The matter in its present posture is not ripe for decision in this court. No adjudication was filed in accordance with the provisions of Pa.R.C.P. Rule 1517, 12 P.S. Appendix. Even were we to consider the opinion of the Chancellor to be an adjudication and his order to be a decree nisi, the record discloses neither the filing and disposition of exceptions thereto and the subsequent entry of a final decree, nor the entry of the order as a final decree by praecipe after the passage of the time allowed for the filing of exceptions. (See Pa.R.C.P. Rules 1518 and 1519). The appeal is, therefore, premature and must be quashed.

In Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 414, 240 A.2d 491, 492 (1968), the Supreme Court considered the question of procedure relating to an appeal in an equity case and stated at 429 Pa. at 414, 240 A.2d 492:

Pennsylvania Rules of Civil Procedure 1516 to 1519, 12 P.S. Appendix clearly enunciate the steps which must be followed by the chancellor, and by the litigants, before a procedurally proper appeal may be taken to this Court. Rule 1516 recites that the parties may file requests for findings of fact and conclusions of law. Rule 1517 itemizes the contents of the chancellor’s “adjudication.” This adjudication must contain, in addition to a decree nisi, a summary of the issues raised in the pleadings, specified findings of fact and conclusions of law, and a discussion of the factual and legal questions involved in the case. Rule 1518 allows the parties 20 days to file specific exceptions to this adjudication. Finally, Rule 1519 provides that the court en banc shall pass on these exceptions, or, if none are filed, the prothonotary, upon praecipe, shall enter the decree as final. All of these steps are necessary to establish an adequate record on appeal.

See also In re Involuntary Termination of Parental Rights, 487 Pa. 387, 409 A.2d 404 (1979).

In the instant case the appeal will be quashed since it was an appeal from an interlocutory order. In addition, the Rules of Civil Procedure to be followed in equity actions were not complied with in the court below.

Appeal quashed.

SHERTZ, J., did not participate in the consideration or decision in this case.

      . Lis pendens is construed to be the jurisdiction, power, or control which courts acquire over property involved in a suit pending the continuance of the action, and until its final judgment. Bungar v. St. Michael’s Greek Catholic Church, 272 Pa. 402, 116 A. 389 (1922). The doctrine of lis pendens does not establish an actual lien on the affected property, but merely gives notice to third parties that any interest that may be acquired in the property pending the litigation will be subject to the result of the action. Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955).

      . The complaint in equity seeks various remedies including the setting aside of conveyances of real estate as fraudulent conveyances under the Uniform Fraudulent Conveyance Act, or otherwise, the declaration that a judgment against appellee, Virginia Mansions, is a lien or encumbrance against property in the hands of Lampl, the grant of preliminary or special injunctions, and the restraint of “Lampl from disposing of the apartment property or any part thereof pending final disposition of this action.”

      . Pa.R.C.P. 1518 provides:
      Rule 1518. Exceptions
      Within ten (10) days after notice of the filing of the adjudication, exceptions may be filed by any party to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters.

      . Pa.R.C.P. 1518 presently requires that exceptions be filed in ten days rather than twenty days.

      . The effect of non-compliance with the Rules of Civil Procedure is succinctly stated in Goodrich-Amram, 2d, Vol. 5, page 170, 171, as follows:
      Unless the provisions of Rules 1517-1519 are followed, an appeal in an equity case is premature and will be quashed. Review by the court en, banc is obligatory. Where no adjudication is filed, and there are no exceptions or final decree, an appeal is premature and will be quashed.

      . The issue of the appealability of an order may be raised sua sponte by this court. Marion Power Shovel Co. v. Fort Pitt Steel Casting Co., 285 Pa.Super. 45, 426 A.2d 696 (1981). However, in this case the appellee contended that this court does not have jurisdiction as the order appealed from is in the nature of a decree nisi. “There is, of course, no question that an appeal from a decree nisi must be quashed for it is an appeal from an interlocutory order.” Community Sports, Inc. v. The Oakland Oaks, 429 Pa. 412, 413, 240 A.2d 491, 492 (1968).


author: MONTEMURO, Judge:

text:
    441 A.2d 1336
    COMMONWEALTH of Pennsylvania v. James Earl TROOP, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed Feb. 26, 1982.
    John A. Bozza, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order denying appellant’s petition to withdraw his guilty plea nunc pro tunc. Appellant pled guilty to one count of Burglary on May 9, 1977 and was sentenced to a term of seven (7) to eighteen (18) years imprisonment.

Appellant contends that his guilty plea colloquy was defective in that he wasn’t informed of the specific elements of his right to a jury, that the accused would be able to participate in their selection, and that the verdict of the jury would have to be unanimous. The Commonwealth contends that the inclusion of these statements in a guilty plea colloquy was not necessary under the state of the law at the time of appellant’s plea. We agree with appellant and reverse.

In Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), our Supreme Court stated that an inquiry into these elements of a jury trial was necessary to ensure a valid guilty plea colloquy. This case was decided after appellant’s guilty plea in 1977. However, in Commonwealth v. Ward, id., the Court cited its decision in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) in support of their position, stating

Williams held that before a purported waiver of the right to trial by jury may be said to be valid, the record must show that the defendant understood that the jurors would be chosen from members of the community, that the accused would be able to participate in their selection, and that any verdict which the jury might render would have to be unanimous. Supra [483 Pa.] at 56, 394 A.2d at 536.

The clear implication of Commonwealth v. Ward, supra, is that the inquiry into these rights was necessary since the decision in Commonwealth v. Williams, supra.

Moreover, in Commonwealth v. Dello Buono, 271 Pa.Super. 572, 414 A.2d 631 (1979), the Court, citing Commonwealth v. Ward, supra, found a 1975 guilty plea colloquy invalid for a similar defect. Commonwealth v. Dello Buono, supra, in effect, construes Commonwealth v. Ward, supra retroactively.

For the foregoing reasons, we find that appellant’s guilty plea colloquy was defective. The Order of the lower court is reversed and a new trial is ordered.

      . 18 Pa.C.S.A. § 901.

      . Appellant also raises another argument. Because of our disposition of the case, we will not address that argument.


author: HOFFMAN, Judge:

text:
    441 A.2d 1338
    DRAKES MILLS DEVELOPMENT COMPANY, Appellant, v. NORTHWEST PENNSYLVANIA BANK AND TRUST COMPANY.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Feb. 26, 1982.

      Robert B. McCullough, Erie, for appellant.
    Robert S. Bailey, Meadville, for appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in dismissing its action for want of prosecution. We disagree and, accordingly, affirm the order of the lower court.

Appellant commenced this action by filing a complaint in assumpsit on April 8, 1976. On August 12, 1976, the lower court granted appellee’s preliminary objections in part, and ordered appellant to file a more specific pleading within twenty (20) days. Despite that order, appellant did nothing until August 29, 1980, when it filed an ex parte petition for an extension of time to certify the case ready for trial under Rule 218 of the Pennsylvania Rules of Civil Procedure (240 Day Rule). Appellant alleged that it was simultaneously filing an amended complaint. The lower court granted the extension until January 3, 1981. On October 15, 1980, however, appellee filed a motion to dismiss the action for failure to comply with the 240 Day Rule, alleging that it had received no notice of the extension petition as required by the rule and that appellant still had not filed its amended complaint. Appellant finally filed an amended complaint nine days later. Following a hearing, the lower court granted appellee’s motion and dismissed appellant’s action. This appeal followed.

Appellant contends that the lower court erred in dismissing its action. We disagree. The 240 Day Rule provides:

1. Prompt Certification for Trial
(a) In all civil actions commenced on or before December 31, 1979, any and all documents required to signify that the case is ready for trial must be filed on or before August 31, 1980. In civil actions commenced on or after January 1, 1980, such documents must be filed not more than 240 days after the action is commenced.
(b) Prior to the expiration of the period limited in Paragraph (a), any party may apply for an extension of such period. The application must be served on all other parties and must set forth the grounds for the request and the length of extension required. The Court may grant the extension only upon finding good cause. The order of extension, if any, shall set forth the new date for certifying trial readiness, which may be sooner than that requested, but may not be later.
(c) If the documents are not filed within the time limits above, the court, with or without motion by any party, shall require that good cause be shown why the case should not be dismissed for want of prosecution.

(Emphasis added). Appellant was thus required to certify its case as ready for trial or to seek an extension of time by August 31, 1980. Two days before that expiration date appellant petitioned for an extension and alleged that it was simultaneously filing an amended complaint. In fact, appellant did not file the amended complaint, nor did he give appellee the required notice. The lower court properly disregarded its earlier ex parte extension based upon appellant’s misrepresentation and held a hearing on appellee’s motion to dismiss.

In order to show good cause why a case should not be dismissed for want of prosecution under the 240 Day Rule, a plaintiff must reasonably explain his inability to certify the case ready for trial. A decision by the lower court that plaintiff’s delay was unjustified is within its sound discretion and will not be reversed absent a manifest abuse of discretion. Cf. Richards v. Swift, 241 Pa. Superior Ct. 359, 360, 361 A.2d 688, 689 (1976) (court’s decision granting non pros within its sound discretion). Appellant had been instructed to file an amended complaint within twenty days, attach copies of checks and contracts mentioned in the original complaint or explain their absence. The lower court was “unimpressed” by appellant’s reasons for delaying four years in complying with its order. Appellant has offered us nothing other than a bare assertion of due diligence to justify the delay. We are unable to find that the lower court abused its discretion and, accordingly, affirm its order.

Affirmed.

      . The 240 Day Rule was promulgated by the Supreme Court on November 19, 1979, No. 16 E.D.Misc. Docket and was found as a footnote to Pa.R.Civ.P. 218 (1980 ed.), reprinted in 486 Pa. xxxvii. It was later vacated by the Supreme Court on March 6, 1981.

      . Appellant contends also that the lower court erred in not applying the tests used in a dismissal, nonsuit or non pros. We disagree. The 240 Day Rule is a per se rule of dismissal and puts upon the plaintiff the burden of showing good cause to justify an extension. That burden is satisfied by a reasonable explanation for the delay. As noted above, appellant’s explanation was unsatisfactory.


author: PER CURIAM:

text:
    441 A.2d 1340
    Russell TRUMBAUER and Mary Louise Trumbauer and Escapade Inc., t/a Mirage Cocktail Lounge v. ECK, KELLOW & COMPANY and Aetna Casualty & Surety Company and Eck, Kellow & Company. Appeal of AETNA CASUALTY & SURETY COMPANY.
    Superior Court of Pennsylvania.
    Argued March 31, 1981.
    Filed Feb. 26, 1982.

      George A. Hahalis, Bethlehem, for appellant.
    John D. DiGiacomo, Easton, for Trumbauer, appellees.
    Robert M. Davison, Bethlehem, for Kellow, appellee.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   PER CURIAM:

Appellees Russell Trumbauer and Mary Louise Trumbauer and Escapade, Inc., t/a Mirage Cocktail Lounge were sued in 1977 for allegedly serving alcoholic beverages to a person who was visibly intoxicated. A verdict was ultimately obtained as a result of the suit. Trumbauer subsequently filed an action for a declaratory judgment against appellant Aetna Casualty & Surety Company, since Aetna had previously denied coverage under the general liability policy in effect during the time period at issue. Aetna subsequently joined Eck, Kellow & Company as an additional defendant, pursuant to Pennsylvania Rule of Civil Procedure 2252(d), and also asserted a cross claim against Eck.

On September 8,1980, the lower court granted declaratory relief, holding that the exclusion in the policy issued by Aetna relating to liquor law liability was ambiguous; and, since the exclusion must be strictly construed against Aetna, liquor law liability coverage was in effect during the period at issue.

On September 17, 1980, Aetna filed a Petition for Reconsideration with the lower court, requesting that the lower court address the issues relating to liability between Aetna and Eck, Kellow & Company. The lower court denied the Petition for Reconsideration stating “the basis of the decision obviates the necessity of addressing the arguments of counsel”. The lower court never did address these issues, holding only that Aetna was responsible for coverage.

On the basis of the record before us, we are precluded from effectively reviewing all of the legal issues involved in this matter.

Even if the attempted exclusion was ineffective (which we do not reach at this time), it is still necessary to address the rights and liabilities which existed between Aetna and Eck, Kellow & Company.

Therefore, the Court of Common Pleas of Northampton County is hereby directed, within 30 days, to enter an Opinion and Order of Court, supplementing its Order of Court of September 8, 1980, as herein above set forth. This matter is remanded to the lower court for this sole purpose, and this Court retains jurisdiction over this matter. No further briefs or arguments from counsel of the respective parties will be necessary.


author: O’KICKI, Judge:

text:
    442 A.2d 246
    RIDGEWAY COURT, INC. v. LANDON COURTS, INC., Benjamin F. Farrell, Sesto DiFore and Vincent A. Sparo. Appeal of LANDON COURTS, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1979.
    Filed Aug. 21, 1981.
    Reargument Denied March 31, 1982.
    Petition for Allowance of Appeal Denied June 16, 1982.

      Thomas J. Reilly, Upper Darby, for appellant.
    Francis R. Lord, Media, for Ridgeway, appellee.
    Richard C. Slama, Jr., Media, did not file a brief on behalf of Farrell, et al., appellees.

      Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge JOSEPH F. O’KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

This appeal arises from a judgment assessed by the Chancellor in equity in the amount of $15,000.00 upon Landon Courts, Inc. for alteration of the natural course of surface drainage waters.

The Plaintiff is the owner of a tract of land in the Borough of Yeadon, Delaware County, Pennsylvania. The developed portion of that tract consists of an apartment complex. The Appellant, Landon Courts, Inc., owns adjacent lands which are higher in elevation than the Plaintiff’s property. Prior to the development of the Landon land, water flowed across the Landon property onto the lower rear portion of Ridgeway’s land. Prior to the development in 1968, the flow of surface water was, as described by the Chancellor, “. . . evenly distributed, unconcentrated in any area, and had an insignificant effect on the Plaintiff’s (Ridgeway) property.”

Following the Landon’s development of their respective properties, including the removal or elimination of a high land point or knoll, part of the surface water flow was diverted away from its natural course towards Lansdowne Avenue and re-directed toward and across the northerly portion of Ridgeway’s property. The Plaintiff’s experts testified that the Landon’s development of their land created an increase in acreage of land draining onto Ridgeway’s land, increased by 13% the slope of the land, and increased the concentrated and channelled surface water run-off by 4.07 cubic feet per second.

The Chancellor found that Plaintiff planned to construct an indoor tennis court at the situs where the diverted waters flow. The Chancellor found from the evidence that prior to construction of any facility, the water flow concentration must be alleviated to minimize the damage due to flooding. The Chancellor found that the cost of construction to remove the water flood hazard would add $12,000.00 cost to Ridge-way’s project, along with $3,000.00 in engineering fees and related costs, for a total additional cost to Plaintiff of $15,000.00. The Chancellor found that Landon was responsible for the increase in run-off of water onto Plaintiff’s land.

Landon argues that every man has the right to the natural and profitable use of his own land. In support of this position, Landon cites Leiper v. Heywood-Hall Construction Company, 381 Pa. 317, 113 A.2d 148 (1955). The court in that Leiper case found that the crucial factor in denying liability was that the augmented flow of surface waters resulting from improvement of the land remained within its natural water course. The Finding Number 8 of Chancellor in this case is:

“During the course of Development of each property by each of the defendants, a high point or knoll was eliminated so that a part of the surface water flow was diverted away from its natural course towards Lansdowne Avenue and was redirected toward the rear portion of the Plaintiff’s property.”

The applicable law to the facts in this case is set forth by the Supreme Court in the case correctly cited by Landon, the appellant. Rau v. Wilden Acres, Inc., 376 Pa. 493, 103 A.2d 422 (1954), explains:

“From a multitude of authorities the applicable law may be summarized as follows:
A landowner may not alter the natural flow of surface water on his property by concentrating it in an artificial channel and discharging it upon the lower land of his neighbor even though no more water is thereby collected than would naturally have flowed upon the neighbor’s land in a diffused condition. One may make improvements upon his own land, especially in the development of urban property, grade it and built upon it, without liability for any incidental effect upon adjoining property even though there may result some additional flow of surface water thereon through a natural watercourse, but he may not, by artificial means, gather the water into a body and precipitate it upon his neighbor’s property.” (Citations omitted)

The Appellant also questions the ability of the lower court to enter an injunction where the situation had been remedied at the time of hearing, citing Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140 (1953). However, in this case, the Chancellor made no finding that the condition was remedied. Prior to 1975, there were two artificial sources of flow to the Plaintiff’s property, an 18 inch pipe and an altered grade. Although there was testimony that the pipe was sealed in 1975, the evidence was uncontroverted that the defendants’ removal of a hill changed the natural flow of water, which condition continued through the time of hearing.

The Appellant also argues that the Chancellor erred as a matter of law in assessing damages at the cost of remedying the situation rather than the difference in value of the property before and after the diversion. It has long been the rule in Pennsylvania that where loss in rental value is not sued for:

“The true measure of damages is the cost of remedying the injury, unless that equals or exceeds the value of the thing injured when such value becomes the measure.” Robb v. Carnegie Bros. & Co., 145 Pa. 324, 22 A. 649 (1891).

In Frye v. Pa. Railroad Co., 187 Pa.Super. 367, 144 A.2d 475 (1958) the Superior Court discussed prior Pennsylvania Supreme Court cases:

“Helbing v. Cemetary Co., 201 Pa. 171, 50 A.2d 970 was an action for damages to a dwelling house, caused by an accumulation of flood water which had been diverted from the opening into a storm sewer caused by a clogged grating or crib. In affirming the plaintiff’s right of recovery, the Supreme Court said: ‘As the injury to the plaintiff’s house was not of a permanent character, the measure of damages was the cost of restoring the property to its former condition together with compensation for the loss of its use.’ Substantially the same rule has been enunciated in Eshleman v. Martic Township, 152 Pa. 68, 25 A. 178. Cf. also Hoffman v. Coal Co., 16 Pa.Super. 631; Penna. R. R. Co. v. Pittsburgh, 335 Pa. 449, 463, 6 A.2d 907 and 56 Am.Jur., Waters § 87.”

The law with regard to damages has remained unchanged since Frye, supra. The rule applying damages for the correction of problems rather than merely compensating a diminution in value serves several public policies. Compensating for diminution rather than correction would tend to lower property values of lands affected with injury to both the taxing authority and the surrounding property areas. In this case, to leave a swampy area uncorrected could lead to health problems associated with stagnant waters. The Appellants continually refer to the general area as urban. Certainly, it is within the Appellee’s right to develop his property into an income generating area just as the Appellant has. It is clear that the schedule of damages established by the Chancellor and the Court en banc seeks to correct a wrong inflicted by the Appellants.

For the reasons indicated above, the Opinion of the Court below is affirmed.

Affirmed.

CAVANAUGH, J., concurs in the result.


author: BROSKY, Judge:

text:
    442 A.2d 249
    Luther Clay GLASGOW, Sue Gill, and Second Church of Christ, Scientist v. G. R. C. COAL COMPANY, a Delaware Corporation, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 11, 1981.
    Filed Oct. 9, 1981.
    Reargument Denied March 8, 1982.
    Petition for Allowance of Appeal Denied June 11, 1982.

      Walter A. Criste, Cresson, for appellant.
    William C. Daczynski, Pittsburgh, for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   BROSKY, Judge:

Appellees, Luther Clay Glasgow, Sue Gill, and Second Church of Christ Scientist (hereinafter appellees), commenced an action to quiet title in August of 1977 against appellant, G.R.C. Coal Company (hereinafter G.R.C.) concerning an 80-acre tract of coal found in seams underlying a parcel of land known as the “Fulkerson Tract,” in Cambria County, Pennsylvania. On June 20, 1980, the trial court granted appellees’ motion for summary judgment. G.R.C. appeals from the order granting summary judgment. We reverse and remand the decision of the trial court and thereby disagree with its reasoning that the conveyance of the tract was in violation of the statute of frauds.

G.R.C. claims an interest in the property based upon two deeds, namely: (1) a recorded deed dated August 1, 1957 in which a Mr. and Mrs. Powell purchased the tract from the Fulkerson heirs. The instrument was signed by the Powells and by the Fulkerson’s purported agent, John Scollins; and, (2) a recorded deed dated August 23, 1974 from the Powells to G.R.C. The appellees attack solely the validity of the former deed.

G.R.C. contends that summary judgment should not have been granted for several reasons. They include:

(1) The Statute of Frauds is not applicable to a wholly performed contract;
(2) The extent of the performance of the contract takes it out of the Statute of Frauds;
(3) The acts of John Scollins, Attorney for Eleanor F. Stevenson, were adopted, approved and ratified by Eleanor F. Stevenson;
(4) The doctrine of estoppel is available to the appellant as applied to Eleanor F. Stevenson;
(5) Joseph C. Apple was a competent witness to give his deposition.
(6) Recision in this case would be inequitable.
Summary judgment will only be granted where:
The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa. Rule of Civil Procedure 1035(b). We must determine, therefore, whether there was sufficient facts upon which the trial court could properly determine that there was “no genuine issue as to any material fact...”

The appellees, Luther Clay Glasgow and Sue Gill, were Fulkerson heirs, and as such they were parties to the purported conveyance between the Fulkerson heirs entered into under the signature of John Scollins and the Powells. The law in Pennsylvania is clear. An agency agreement for the sale of land must be in writing, 33 P.S. § 1, Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975); Fiegelman v. Parmoff Corp., 435 Pa. 461, 257 A.2d 575 (1979). A party to an agreement in which real estate is conveyed has the right to attack the authority of a person claiming to act as an agent to act in that capacity. Lewis v. Spitler, 266 Pa.Super. 201 n.7, 403 A.2d 994, 998 n.7 (1979). A ratification of an oral agency agreement must be in writing. Fiegelman v. Parmoff Corp., supra, Mott v. Kaldes, 288 Pa. 264, 135 A. 764 (1927). The doctrine of estoppel may not be invoked against the statute of frauds. Del Borrello v. Laulatta, 455 Pa. 350, 317 A.2d 254 (1974). Laches may not be asserted to deprive the appellees of title. Beers v. Pusey, 389 Pa. 117, 132 A.2d 346 (1957). Furthermore, the deposition of Joseph C. Apple posed to demonstrate the existence of an agency agreement is ineffective because there is no written expression of the purported agency agreement entered into by the Fulkerson heirs, specifically, Luther Clay Glasgow and Sue Gill.

The standard by which a contract for the sale of realty is taken out of the statute of frauds was stated by our Supreme Court in Beers v. Pusey, supra, 389 Pa. at 124, 132 A.2d at 350.

Nor was the evidence presented sufficient to take the oral agreement out of the operation of the Statute. In Brotman v. Brotman, 353 Pa. 570, 572, 46 A.2d 175, 177, we said on that subject:

It is well settled in this Commonwealth as was said by this Court in Hart v. Carroll, 85 Pa. 508, 510, that in order to take a parol contract for the sale of real estate out of the operation of the Statute of Frauds, the evidence must, among other things, show: ‘ * * that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.’ ” (Emphasis supplied.)

Klingensmith v. Klingensmith, 375 Pa. 178, 100 A.2d 76 (1953); Rea v. Ford Motor Co., 326 F.Supp. 627, D.C.1971, adhered to 355 F.Supp. 842, vacated in another respect 497 F.2d 577, cert. den. 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 on remand 406 F.Supp. 271, vacated 560 F.2d 554, cert. den. 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281.

The damages must be compensable to the vendee for any improvements he has made to the property. Rader v. Keiper, 285 Pa. 579, 132 A. 824 (1926). We agree with the trial court when it held that any performance or part performance by the Powells and G.R.C. was compensable in damages. Quite clearly the value of the land was, on the whole, not improved, rather its value was decreased, by the operation of a mine.

In Briggs v. Sackett, 275 Pa.Super. 13, 17, 418 A.2d 586, 589 (1980), however, we said:

The statute of frauds provides that oral contracts for the sale of land are invalid. 33 P.S. § 1. Where, however, the party seeking to enforce the conveyance has partially performed the contract, so as to render recission [sic] inequitable and unjust, the contract may be outside the operation of the statute. See, e. g., Hancock v. Melloy, 187 Pa. 371, 41 A. 313 (1898). “[I]t is well settled that the statute prevents the entry of a decree of specific performance against the vendor under the oral contract, . . . unless it appears that continuous and exclusive possession was taken under the contract and improvements were made by the vendee not readily to be compensated in money, or other equitable considerations make it impossible to do justice save by specific performance.” Haskell v. Heathcote, 363 Pa. 184, 69 A.2d 71 (1949) (citing Moyer v. Moyer, 356 Pa. 184, 51 A.2d [708] 709 (1947); Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946); Axe v. Potts, 349 Pa. 345, 37 A.2d 572 (1944); Hartzell’s Estate, 114 Pa.Super. 190, 173 A. 842 (1934)) (emphasis in original). Although some of our cases have articulated the second requirement more narrowly, requiring a showing of permanent improvements to the property, see, e. g., Hart v. Carroll, 85 Pa. 508, 510 (1877), the great majority of the cases employ the broader formulation of the standard quoted above. See, e. g. Klingensmith v. Klingensmith, 375 Pa. 178, 100 A.2d 76 (1953); Brotman v. Brotman, 353 Pa. 570, 46 A.2d 175 (1946). Among the relevant “equitable considerations” which may justify a decree of specific performance is the amount of time which has passed prior to the vendor’s challenge to the vendee’s possession. Rarry v. Shimek, 360 Pa. 315, 62 A.2d 46 (1948). This time factor is considered because it would be inequitable to aid one who has induced another’s detrimental reliance by his failure promptly to pursue his rights. Id., 360 Pa. at 321, 62 A.2d at 49.

The “time factor” in Briggs, supra, was 15 years. In the instant case, the conveyance was not challenged for 19 years. Thus, strong equitable considerations exist which tend to justify G.RC.’s argument. We are not satisfied that there was “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Accordingly, we reverse and remand for trial.

DiSALLE and SHERTZ, JJ., concur in the result.

AND NOW, to-wit, this 8th day of March, 1982, appellees’ application for reargument is denied and the opinion and order filed by this Court on October 9, 1981 is hereby clarified to indicate that having noted that this appeal concerns only that portion of the judgment which involves the interest purportedly conveyed by Eleanor Stevenson, the order of the trial court is reversed and the case is remanded to that court for trial as to that interest alone.


text:
    442 A.2d 252
    BUSY BEAVER BUILDING CENTERS, INC. v. Harry J. TUECHE and Carmen Tueche, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed Dec. 4, 1981.
    Reargument Denied March 26, 1982.

      Bernard S. Shire, Monessen, for appellants.
    Stephen J. Laidhold, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal concerns an action brought under 42 Pa.C.S. § 8104 by appellant-debtors to have a judgment record marked satisfied and to recover liquidated damages from appellee-creditor for its failure to satisfy same. The lower court entered an order based upon the entire record, consisting of the pleadings and deposition of Harry Tueche. There was no testimony taken. It found that “[t]he mortgage was intended to take the place of the judgment note and secure the obligation,” and ordered satisfaction of the Westmoreland County judgment because it believed “that the receipt of a mortgage by the [appellee] in place of the judgment note which it satisfied in Washington County nullifies that judgment and as well . . . the [judgment] in Westmoreland County.”

However, the court held that appellants were not entitled to liquidated damages under the statute on the ground that the prerequisite for entitlement to liquidated damages is that the creditor must have received satisfaction of the judgment; and that mere satisfaction of the docket (in Washington County) did not satisfy the underlying debt obligation. The court found that “there remains unpaid on [appellants’] indebtedness to Busy Beaver one thousand, eight hundred nine dollars and eighty-seven cents.” Thus, it denied appellants request for liquidated damages. It is from this portion of the order that appellants have taken this appeal.

We affirm the order of the lower court.

The central issue for our determination is whether appellants are entitled to recover liquidated damages under the statute. Appellants contend that the court below erred in denying their claim for liquidated damages, arguing that once the court entered an order directing that the Westmoreland County judgment be satisfied, that it was bound by the statute to award appellants liquidated damages.

The facts are as follows. Appellee sold materials on credit to appellant, a home builder. In connection therewith, as a security measure, appellee required appellant to execute a judgment note in its favor, which appellant executed March 10, 1970, in the amount of $6,660. Appellants did not comply with the payment schedule set out in the note. On August 5, 1970, appellee recorded the note in the Court of Common Pleas of Washington County, Pennsylvania, in the amount of $6,930, representing the face amount of the note plus attorney fees. On August 10, 1970, appellee filed a Certification of Docket Entries and Judgment, executed by the Prothonotary of Washington County, with the Prothonotary of Westmoreland County, thereby effecting a transfer of the Washington County judgment under Pa.R.C.P. 3002.

On October 29, 1970, appellants executed a mortgage in favor of appellee in the amount of $5,200, secured by three lots. The mortgage provided in part:

BUSY BEAVER BUILDING CENTERS, INC. agrees to release any of the lots secured in this mortgage upon receipt of the sum of $1,700.00, plus all interest to date.

The record shows that two of the lots were released. One was released November 4, 1970; the other was not released until April 21, 1978. The third lot was sold at sheriffs sale. Neither the date of the sale nor the sale price is disclosed by the record.

On November 24, 1970, the judgment entered in Washington County on August 5, 1970 was marked “satisfied in full” upon the docket DSB.

The Westmoreland County judgment was never marked satisfied. On August 8, 1975, appellee filed a praecipe for a writ of revival of the Westmoreland County judgment; and a writ was subsequently issued.

By letter dated December 27, 1977, appellants, through their attorney, requested that Busy Beaver have the Westmoreland County judgment marked satisfied on the docket. The letter stated, in relevant part:

Our clients have advised us that any amounts represented by these judgments have been fully paid to your company as evidenced by the satisfaction of the earlier Washington County judgment.
We enclosed herewith a check payable to Busy Beaver Building Centers in an amount of $13.00 representing a reasonable and sufficient amount for satisfying the Westmoreland County judgment.
Please satisfy this judgment at once.

Appellee refused to satisfy the judgment. Thereafter appellants filed suit.

In its pleadings, appellee defended on the ground that appellants still owed it approximately $1,809.87 and that therefore it could rightfully refuse to have the Westmoreland County judgment marked satisfied.

In his deposition, Tueche stated that at the time he executed the judgment note, appellee’s manager promised him that the note would not be recorded until and unless he died. He asserted that when he discovered that it had been recorded, he

[protested ... to such a degree that [the manager] suggested that I give Busy Beaver a mortgage to wipe out [the] note in its entirety. And that is what I did. I issued them a mortgage somewhere in October, 1970 . . . Appellee’s attorney asked:
Q. Your position is your posting the mortgage satisfied the judgment obligation to Busy Beaver?
A. Absolutely.
Section 8104 provides:
§ 8104. Duty of judgment creditor to enter satisfaction.
(a) General rule.—A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
(b) Liquidated damages.—A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

To begin with, we note that we have not had the occasion in the past to interpret this statute.

42 Pa.C.S. § 8104 was derived from several statutes, including the now-repealed 12 P.S. §§ 971, 973, 974, 975, 977, 978, and 42 P.S. § 811. Title 12 is entitled “Civil and Equitable Remedies and Procedure.” Sections 971, 973, 974, 975, 977 and 978 appear under the subheading entitled “Discharge of Judgments,” which is further divided into two subheadings: “By Payment Into Court,” and “By Satisfaction.” It is under the latter that §§ 971, 973, 974, 975, 977 and 978 appear.

Section 971 provides:

Satisfaction to be entered of record; penalty for neglect. Each and every person having received satisfaction for his or their debt or damages recovered by judgment in any court of record within this commonwealth shall, at the request of the defendant or defendants in the action, or of his, her or their legal representatives, or other persons concerned in interest therein, on payment of the costs of suit, and on tender of his reasonable charges and the costs of office for entering satisfaction, within eighty days after such request made, enter satisfaction of the judgment in the office of the prothonotary of the court where such judgment was or shall be entered, which shall forever thereafter discharge, defeat and release the same; and if such person, having received such satisfaction as aforesaid, by himself or his attorney, shall not, within eighty days after request and payment of the costs of suit, and tender of charges as aforesaid, repair to the said office, and there enter satisfaction as aforesaid, he, she or they refusing or neglecting so to do, shall forfeit and pay unto the party or parties aggrieved any sum of money, not exceeding one-half of the debt or damages so adjudged and recovered, to be sued for and demanded by the defendant, or persons damnified, in like manner as other debts are now recoverable by law in this commonwealth.
Section 973 provides:
§ 973. Proceedings to obtain entry of satisfaction of judgments, in Philadelphia.
When it shall be made known by petition to any court in the said city and county, in which any judgment or decree for the payment of money has been obtained, that more than ten years have elapsed since the rendition of said judgment or making of said decree, and that the same has been paid by the defendant or defendants, person or persons, against whom the same has been rendered or made, or by some other person, or has been settled or compromised by the payment of a less sum than the amount of such judgment or decree, or by the transfer of property, rights, or credits received in full thereof, or in settlement and satisfaction thereof, it shall be the duty of said court to examine into the facts set forth in such petition, and upon being satisfied of the truth thereof, to direct the prothonotary of said court, upon the payment of the costs, if any, due to him upon such judgment or decree, to enter satisfaction upon the record thereof . .

Sections 974 and 975 are merely procedural and do not concern us here. Section 977 states that where it appears by the production of the record that a judgment has been “fully paid, under or by virtue of an execution or executions issued thereon, and satisfaction has not been entered upon” on the docket, it shall be the duty of the court, upon the request of any interested party, upon payment of a fee to the prothonotary, to enter satisfaction upon the docket.

Section 978 provides that, upon application by a debtor setting forth under oath that a judgment of record has been paid, along with all costs, the court shall grant a rule upon the creditor to show cause why the judgment should not be marked satisfied of record. If the court upon hearing the rule, believed that the judgment had been fully paid, then it was obliged to direct the prothonotary to mark the judgment satisfied of record.

This section provided a short and inexpensive method of ending clear cases of undisputed payment. Atkinson v. Harrison, 153 Pa. 472, 26 A. 294 (1893). A judgment could be satisfied under this section only in the event it clearly appeared that it had been “fully paid.” Time Sales Finance Corp. v. F. W. Lang Co., 428 Pa. 468, 239 A.2d 337 (1968).

42 P.S. § 811 appears under the heading “Payment and Satisfaction of Judgment.” Entitled “Time for entering satisfaction,” it provides that any person who shall not, within thirty days after receiving written notice of the payment of a judgment, in his favor, together with costs, before a justice of the peace, enter satisfaction on the docket shall be subject to a penalty of one-fourth of the debt paid.

It seems clear, upon an examination of these sections, that the term “satisfaction” as used in 42 Pa.C.S. § 8104, in the phrase, “[hjaving received satisfaction,” refers to a situation in which a creditor has received payment of the underlying debt obligation.

Section 973 is addressed to the situation in which more than ten years have elapsed since the entry of a judgment, and the debtor is able to show that the judgment has been paid. Under §§ 977 and 978 also, it must appear that the judgment “has been fully paid.”

Finally, under 42 P.S. § 811, a creditor must enter satisfaction upon the docket where he receives notice that payment has been made.

We hold, in light of the clear import of these statutes, that the phrase “a judgment creditor who has received satisfaction of any judgment ...” must be interpreted to mean that the creditor has received full payment of the underlying debt instrument. The context of the statute, as well as its history, clearly requires that such meaning be given to the term “satisfaction” here. See Treaster v. Township of Union, 430 Pa. 223, 242 A.2d 252 (1968).

In interpreting the statute in this way, we adhere to the well settled principle of construction that the language of a statute must be read in a sense which harmonizes with the subject matter and its general purpose and object. Swartley v. Harris, 351 Pa. 116, 119, 40 A.2d 409, 411 (1945).

Here, appellee did not file a cross appeal from the portion of the order directing the Prothonotary of Westmoreland County to satisfy the judgment. Therefore, although it appears that appellee is still owed one thousand, eight hundred nine dollars and eighty-seven cents, and thus has not “received satisfaction” in accordance with 42 Pa.C.S. § 8104(a), we cannot make a determination as to whether or not that portion of the order was proper. Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Since this issue was not preserved for appeal, we are limited to a determination of whether appellants are entitled to liquidated damages under these circumstances.

We hold that they are not, since we find that entitlement to damages is dependent upon receipt of satisfaction by the judgment creditor, which in turn requires payment in full of the underlying debt instrument. Since appellee is still owed one thousand, eight hundred and nine dollars and eighty-seven cents, it cannot be said to have “received satisfaction.”

For these reasons, we affirm the order of the lower court.

PRICE, J., did not participate in the consideration or decision of this case.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 8104.

      . Pa.R.C.P. 3002 states in relevant part: (a) A judgment may be transferred to another county by filing of record a certified copy of all the docket entries in the action and a certification of the amount of the judgment, (b) The prothonotary of the court to which a judgment is transferred shall forthwith enter it in the appropriate docket and index it against the defendant.

      . The lower court states in its opinion that the lots were sold. The deposition of Harry Tueche indicates that First Federal Savings and Loan of Monessen sent two checks to Busy Beaver, each in the amount of $1,700, representing payment in exchange for the release of two of the lots.

      . Although we hold that the statute requires full payment, we do not rule out the possibility of a creditor receiving satisfaction from a levy, so long as the creditor receives the amount it is owed.