author: WIEAND, Judge.

text:
    664 A.2d 110
    Theresa ALBERICI, Appellant, v. SAFEGUARD MUTUAL INSURANCE COMPANY, General Accident Fire and Life Assurance Corporation, Ltd., The Insurance Placement Facility of PA., Quaker State Mutual Group, Home Mutual Insurance Company of PA., Appellees. Theresa ALBERICI v. SAFEGUARD MUTUAL INSURANCE COMPANY, General Accident Fire and Life Assurance Corporation, Ltd., Quaker State Mutual Group and Home Mutual Insurance Company of PA., The Insurance Placement Facility of PA. Appeal of Safeguard Mutual Insurance Company, General Accident Fire and Life Assurance Corporation, Ltd., Quaker State Mutual Group, and Home Mutual Insurance Company of Pa.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Filed Aug. 8, 1995.

      David Ginzberg, Philadelphia, for Theresa Alberiei.
    Michael O’Hayer, Wayne, for Safeguard Mut., General Accident, Quaker State & Home Mut. Ins.
    Christopher Konzelmann, Philadelphia, for Insurance Placement Facility of PA.
    Before WIEAND, BECK and BROSKY, JJ.
   WIEAND, Judge.

On or about May 9, 1977, Joseph Alberiei entered an agreement to purchase a theatre property in Aston, Delaware County, for a price of $210,000.00. The named purchaser was Joseph Alberiei or his nominee. A down payment of $21,-000.00 was made by withdrawing funds from a savings account owned jointly by Joseph Alberiei and Theresa Alberiei, husband and wife. On August 6, 1977, prior to closing, the theatre was seriously damaged by fire. After the fire, Joseph and Theresa Alberiei mortgaged other real estate which they owned, and these proceeds were used to close on the theatre property. Title was taken in the name of La Casa Mia.

After signing the agreement to purchase the theatre, Alberici had purchased fire insurance as follows:

Property Insurer Amount Insured

building 1. Safeguard Mutual 100.000 Joseph Alberiei

contents 2. Safeguard Mutual 25.000 Joseph & Theresa Alberiei

building 3. General Accident 125.000 Joseph & Theresa Alberiei

building 4. Insurance Placement 100.000 Joseph Alberiei

building 5. Quaker State Mutual 62.500 Joseph & Theresa

contents 12.500 Alberiei

building 6. Home Mutual Ins. 62.500 Joseph & Theresa

contents. 12.000 Alberiei

Joseph Alberiei subsequently came under suspicion for arson, and he was ultimately convicted of mail fraud in connection with the submission of fire loss claims to the insurers. Because of this, summary judgment was entered in favor of the insurers in an action brought against them by Joseph and Theresa Alberiei. On appeal, the Superior Court affirmed the judgment on Joseph’s claim, but determined that a possibility existed that Theresa could show an insurable interest entitling her to recover under fire policies issued to her. On remand and following a trial without jury, the trial court found that Theresa Alberiei did have an insurable interest in the real estate and, therefore, could recover under the terms of policies in which she was a named insured. From this aspect of the case, both insurer and insured appealed.

The decision of a trial judge sitting without a jury must be accorded the same weight as a jury verdict; and a reviewing court will not disturb the trial judge’s findings of fact unless they are unsupported by competent evidence. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1028 (1987); Piccinini v. Teachers Protective Mut. Life Ins. Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983). Since the trial judge is in the best position to judge the credibility of the witnesses, an appellate court may not reexamine the weight to be given to their testimony. In re Estate of Cornell 511 Pa. 475, 480, 515 A.2d 555, 557 (1986); Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985). Similarly, an appellate court may not substitute its judgment for that of the trial judge. Beneshunas v. Independence Life & Accident Ins. Co., 354 Pa.Super. 391, 394, 512 A.2d 6, 7 (1986).

Before Theresa could recover on the policies in which she had been named as an insured, it had to be shown that she possessed an insurable interest in the property. Van Cure v. Hartford Fire Ins. Co., 435 Pa. 163, 166, 253 A.2d 663, 664 (1969); Christ Gospel Temple v. Liberty Mutual Ins. Co., 273 Pa.Super. 302, 308, 417 A.2d 660, 663 (1979). To determine whether a party has an insurable interest in property, it is necessary to focus upon the facts as they existed at the time the policy was issued and at the time the loss occurred. Iehle v. Coleman, 401 Pa.Super. 78, 82, 584 A.2d 988, 990 (1991). Generally, whether a person has an insurable interest is an issue to be decided by the finder of fact. Campbell v. Royal Indemnity Co. of New York, 256 Pa.Super. 312, 315, 389 A.2d 1139, 1141 (1978). See also: Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 224, 496 A.2d 762, 766 (1985).

A policy that insures against loss by fire is a contract for indemnity which protects the insured’s interest in the property, not the property itself. Mutual Benefit Ins. Co. v. Goschenhoppen Mutual Ins. Co., 392 Pa.Super. 363, 368, 572 A.2d 1275, 1277 (1990). One who “derives pecuniary benefit or advantage from the preservation or continued existence of [ ] property or who will suffer pecuniary loss from its destruction” has an insurable interest in the property. Luchansky v. Farmers Fire Ins. Co., 357 Pa.Super. 136, 138, 515 A.2d 598, 599 (1986). Upon execution of an agreement of sale, a purchaser of real estate has an equitable title to property and may insure his or her interest therein. Mutual Benefit Ins. Co. v. Goschenhoppen Mutual Ins. Co., supra at 369, 572 A.2d at 1277. A purchaser’s insurable interest is in the entire property, not merely the extent to which he or she has made payments towards the purchase price. Iehle v. Coleman, supra at 83, 584 A.2d at 990; Mutual Benefit Ins. Co. v. Goschenhoppen Mutual Ins. Co., supra at 369, 572 A.2d at 1277. Accord: Dubin Paper Co. v. Insurance Co. of North America, 361 Pa. 68, 86, 63 A.2d 85, 94 (1949).

After reviewing the testimony and evidence, the trial court concluded that appellant had an insurable interest in the theatre property at 247 Concord Avenue from the date of the agreement of sale. Although the agreement did not specifically identify appellant as a purchaser, it designated the “buyer” as “Joseph Alberici or his nominee.” The trial court concluded that Joseph Alberici and Theresa Alberici, husband and wife, were intended nominees. The court observed that appellant and her husband had always purchased property together in the past, she had accompanied her husband to inspect the property prior to the purchase, and the monies to pay for the property had been taken from marital assets. Both appellant and her husband, the court concluded, had approached the purchase in a manner which indicated that they were purchasing it jointly. Because appellant was a purchaser of the property, she had an insurable interest therein. Her interest was in the value of the entire property and not merely her contribution toward the down payment. We find no basis for disturbing the trial court’s findings.

We must next determine whether the trial court correctly apportioned liability solely among the carriers who insured the interest of Joseph and Theresa Alberici. In Pennsylvania, the Insurance Company Law of 1921, P.L. 682, as amended, 40 RS. § 636, requires that every policy of fire insurance include a proration clause. A “pro rata clause” in an insurance policy allows the liability of one insurer to be measured by the proportion that its policy bears to the total insurance on the property. 6 Appleman, Insurance Law and Practice § 3905. Accord: Vrabel v. Scholler, 369 Pa. 235, 243, 85 A.2d 858, 861-862 (1952). A purpose of a proration clause is to “relieve the insurer from the burden of litigating with the insured as to the validity of other policies.” 6 Appleman, Insurance Law and Practice § 3905.

In the case sub judice, each of the policies on the theatre property contained the following clause:

This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.

In order for proration to apply, there must be two or more policies covering the same risk, the same subject matter and the same interest. Mutual Benefit Co. v. Goschenhoppen Mutual Ins. Co., supra at 368, 572 A.2d at 1277. Accord: Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 385 Pa. 394, 398, 123 A.2d 413, 415 (1956); Vrabel v. Scholler, supra at 243, 85 A.2d at 862. Here, it is agreed that the policies naming Joseph Alberici as the sole insured and those naming Joseph and Theresa Alberici as co-insureds covered the same risk and the same subject matter. Appellant contends, however, that the policies issued to Joseph Alberici individually did not apply to the same interest as those in which she and her husband were named jointly as co-insureds. The trial court disagreed and pro rated liability on the basis of all policies insuring either Joseph Alberici or Joseph and Theresa Alberici. Appellant contends that this was error.

Two or more policies of insurance cover the same interest where there is a potential for the insured to experience a double recovery. “Since fire insurance is only a contract of indemnity and its object is not to permit a gain by the insured but only to compensate him [or her] for a loss, it is obvious that he [or she] cannot recover insurance in an amount greater than the loss which he [or she] sustained.” Insurance Co. of No. Amer. v. Alberstadt, 383 Pa. 556, 561, 119 A.2d 83, 86 (1956). Therefore, a judgment creditor who stands in the shoes of a debtor would be bound by a pro rata distribution from any policies held by the debtor for the same property and the same risk. Vrabel v. Scholler, supra. The interests are different, however, where the insureds on several policies bear the relationship of vendor and purchaser of real property, partner and partnership, and property owner and mortgage lender. In such cases, there would be no danger of double recovery. See: 19 P.L.E., Insurance § 276. See also: Yanko v. Standard Fire Ins. Co., 31 Pa.Super. 1, 3 (1905).

In a policy for fire insurance, the right of indemnity is provided to the insured according to the terms of the policy; it is not necessarily payable to all the owners of the property. Maravich v. Aetna Life and Casualty Co., 350 Pa.Super. 392, 407, 504 A.2d 896, 904 (1986). Whether a policy covers separately the interests of a husband and a wife must be determined by reference to the policy language. Id. Accord: Bryant v. Girard Bank, 358 Pa.Super. 335, 353, 517 A.2d 968, 978 (1986). See also: 46A C.J.S., Insurance § 1391.

In the instant case, the buyer of the theatre named in the agreement of sale was Joseph Alberici or his nominee. The evidence is clear that it was Alberici who also purchased fire insurance to protect the interest of the purchaser. In two policies, which he purchased from Safeguard Mutual and Insurance Placement, he caused himself to be named as the insured. In four other policies which he purchased from Safeguard Mutual, General Accident, Quaker State Mutual and Home Mutual, the nominee which he named in the policies was himself and his wife. The trial court found that Theresa had acquired an interest in the real estate which was insurable and which would support the issuance of a policy of insurance to protect that interest. That interest, however, was the interest of a purchaser. Joseph’s interest in the real estate was also that of a purchaser. If both Joseph Alberici and his nominee were paid the full purchase price, there clearly would be a double recovery. Or to put it another way, there could be only one recovery for the fire loss by the purchaser. That purchaser was either Joseph Alberici or his nominee. There could not be a full recovery by both. Under these circumstances, it seems clear that all policies insured a single interest, i.e., the interest of the purchaser. Therefore, the trial court properly calculated the pro rata apportionment among all policies insuring the interest of the buyer or buyers under the terms of the sales agreement.

In an action arising under an insurance policy, a court may award to the insured punitive damages, attorneys’ fees and costs if the court finds that the insurer acted in bad faith in refusing to pay the insured’s claim. 42 Pa.C.S. § 8371. Although this litigation has been protracted, it is clear that the issues were complex and that the denial of liability by the insurers was not done in bad faith. The trial court found that the actions of the insurers had not warranted an award of punitive damages, attorneys’ fees or costs, and our independent review of the record compels us to agree. Because there was no evidence of bad faith to support an award of punitive damages, the trial court properly denied this part of appellant’s claim.

The trial court did err, however, when it awarded interest only until the date of trial. In an action for breach of contract, the debtor is obligated to pay interest at the legal rate from the time payment has been withheld until the entry of a verdict. Movie Distributors Liquidating Trust v. Reliance Ins. Co., 407 Pa.Super. 588, 599-600, 595 A.2d 1302, 1308 (1991). Interest is a legal right which arises upon breach. Id. It does not depend upon the discretion of the trial court. Regardless of the reason for delay, a court may not suspend the accrual of pre-judgment interest during the period between trial and the entry of its verdict. Thomas H. Ross, Inc. v. Seigfreid, 405 Pa.Super. 558, 570, 592 A.2d 1353, 1359 (1991). Therefore, the trial court erred in calculating the appropriate interest to which appellant was entitled. Appellant was entitled to recover interest until the date on which the trial court entered its verdict.

The order of the trial court is remanded for the recomputation of interest. In all other respects, the order is affirmed.

BECK, J., concurs in the result.

      . Pennsylvania Rule of Appellate Procedure 341, as it existed at the commencement of this litigation, allowed for an appeal as of right from any final order of the trial court. Pa.R.A.P. 341(a) (subsequently amended). An order was final if it put the litigant out of court on a cause of action against one of several defendants. Foflygen v. Zemel, 420 Pa.Super. 18, 28, 615 A.2d 1345, 1350 (1992). After a final order had been entered, an appeal was to be perfected by the filing of a notice of appeal within thirty days. Pa.R.A.P. 903(a).
      Prior to trial, on June 17, 1993, the trial court granted summary judgment in favor of Safeguard and Insurance Placement because their policies on the building named Joseph Alberiei as the only insured. A final order to that effect was entered on June 24, 1993. No appeal from that order was taken within the thirty day period allowed by the rules. We are without jurisdiction to extend the period for appeal; and, therefore we will not review that order in the present appeal. See; Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 518 A.2d 1213 (1986) (plaintiff could not wait until after trial to appeal from order granting summary judgment for one defendant).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    664 A.2d 116
    COMMONWEALTH of Pennsylvania v. Barry GRIFE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed Aug. 14, 1995.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, JOHNSON and BROSKY, JJ.
   OLSZEWSKI, Judge:

Following a bench trial, Barry Grife was convicted of one count of attempted theft by deception, and three counts of theft by deception. Post-verdict motions were denied, and Grife was sentenced to three concurrent five-year terms of probation and ordered to pay restitution in the amount of $9,100 to the complainant, the Honorable Alan Silberstein.

Grife, a real estate broker, appraiser, and title insurance agent in the Philadelphia area, borrowed $10,000 from Shoppers Publication, Inc. (Shoppers). This loan was to be secured by a mortgage of $11,800 granted to Shoppers on Grife’s home at 43 Merrydell Drive, Northampton, Bucks County. Previously, Grife had executed a $20,000 mortgage on the same home to his mother, Bessie Grife (mother).

Shoppers recorded its mortgage September 19, 1986. At the time of the first loan, Grife presented Shoppers with a satisfaction of the mortgage to mother. Between August of 1986 and January of 1987, Shoppers loaned Grife additional moneys. In exchange, Grife executed a second mortgage, for $35,000, to Shoppers on his Northampton home. During this period of time, Grife continued to make payments on the first Shoppers loan.

In October of 1986, after the first Shoppers mortgage was recorded but before the second was executed, Grife took another mortgage out on the same Northampton residence, this time with Northwood Federal Credit Union (Northwood). Grife borrowed $100,000 from Northwood. In 1984, Grife had granted Northwood a $35,000 mortgage on the home, which was satisfied from the proceeds of the second Northwood loan.

Northwood allowed Grife to conduct the title search as title agent to his own loan. Grife was part owner of a title insurance business, the Delaware Valley Abstract Company. Grife had represented to the board at Northwood that he would save transactional costs by doing his own title search. N.T. 7/12/93 vol. 1 at 61. While he agreed to subordinate mother’s mortgage to Northwood’s interest, Grife failed to report Shoppers’ $11,800 lien. Id. at 63-64. Northwood was thus unaware that it was second in line behind the Shoppers mortgage.

Three months after executing the Northwood mortgage, Grife negotiated the second mortgage with Shoppers. Two months after that, on March 12, 1987, Grife took out yet another mortgage, this time with First Financial Corporation (Financial), for the sum of $56,277. Once again, and allegedly for the same reasons as before, Grife acted as his own title agent. N.T. 7/12/93 vol. 2 at 24. An affidavit was prepared for Financial’s benefit stating that the Northampton home was free and clear of all loans, taxes, liens, mortgages and judgments, except for the $100,000 mortgage to Northwood. Id. at 25-26. A title commitment showed mother’s and Shoppers’ mortgages as removed. Id. at 28-30. The result was that Financial believed its mortgage interest in the property was second only to Northwood’s. Id. at 30.

Six days later, on March 18th, Grife paid off the $35,000 and the $11,800 loans from Shoppers. He received from Shoppers the satisfaction pieces for both the second mortgage and the mortgage to mother. Id. at 30, 33. Because Grife was planning to borrow more money from Shoppers, no satisfaction piece was sent for the first $11,800 Shoppers mortgage. Instead, Grife used this mortgage to secure an additional $5,000 loan from Shoppers. Id. at 28.

At this point, therefore, Grife had an $11,800 mortgage to Shoppers, a $100,000 mortgage to Northwood, a subordinated $20,000 mortgage to mother with a satisfaction piece that was never entered, and a $56,277 Financial mortgage. As if this were not enough, Grife solicited his business partner in the title insurance agency, attorney Ronald Bayer, for more money.

Bayer, in turn, spoke to his former law partner, the Honorable Alan Silberstein, President Judge of the Philadelphia Municipal Court, about lending Grife $10,000. Judge Silberstein lent Grife the money at 12% simple interest, interest to be paid in twelve equal monthly installments, principal to be paid in full one year from the date of the loan. In exchange, Grife gave Judge Silberstein a $10,000 mortgage on the house. N.T. 7/13/93 at 85.

Based upon letters and documents supplied to Judge Silberstein by Grife, the judge believed that his mortgage was in third place, behind the Northwood and Financial mortgages in priority. Id. When Grife sent Bayer the results of a title search, marginal notations listed the $11,800 Shoppers mortgage as removed and mother’s mortgage as being removed. Id. at 20.

Grife made most, if not all, of the interest payments to Judge Silberstein. Id. at 88. Grife approached Judge Silberstein for a second loan. This time, however, because the judge was concerned about the amount of equity in the house and because he was not satisfied with the timeliness of Grife’s payments, Judge Silberstein refused to make a second loan. Id. at 89.

After being turned down by Judge Silberstein, Grife sought out another friend, David Ghen, to lend him the money. With Grife present, mother assigned her $20,000 mortgage to Ghen in exchange for $10,000. N.T. 9/23/92 at 12. Soon afterward, Grife went into bankruptcy. Northwood foreclosed on the Northampton house. Shoppers assigned its $11,800 mortgage to a title insurance company, Title U.S.A., in exchange for $2,500. N.T. 7/12/93 vol. 2 at 80-82. At foreclosure, North-wood received $132,000, while Ghen assigned his $20,000 mother mortgage to Title U.S.A. in consideration for $14,600. N.T. 7/12/93 vol. 1 at 78; N.T. 9/23/92 at 18. Judge Silberstein never collected any of the principal of his loan to Grife. Subsequently, Grife was prosecuted and convicted of theft by deception.

On appeal, Grife argues that the evidence was insufficient to convict him. We disagree.

“It is well established that the test for determining the sufficiency of the evidence is Vhether, viewing all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner, the trier of fact could have found that the defendant’s guilt is established beyond a reasonable doubt.’” Commonwealth v. Rainey, 540 Pa. 220, 656 A.2d 1326, 1330 (quoting Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986)).

There is no doubt that Grife misrepresented the mortgages he took out on the Northampton home in order to procure further loans. Both orally and in writing, he actively concealed the $11,800 Shoppers mortgage to all of the subsequent lenders. That he initially satisfied this mortgage is irrelevant, as he used that same mortgage to secure a subsequent loan. In addition, he never recorded the satisfaction of the mortgage to mother, despite representing to Northwood, Financial, and Judge Silberstein that mother’s mortgage was being removed. It was after he misrepresented the status of mother’s mortgage that Grife colluded to have it assigned to Ghen, a bona fide purchaser.

The statute under which Grife was convicted provides in part: “A person is guilty of theft [by deception] if he intentionally obtains or withholds property of another by deception.” 18 Pa.C.S.A. § 3922(a). An element of theft by deception is that Grife intended to deprive the lenders of their property. See Commonwealth v. Bruce, 414 Pa.Super. 419, 607 A.2d 294 (1992). Grife maintains that the Commonwealth has failed to establish this element of the crime, because it did not prove beyond a reasonable doubt that Grife intended to deprive the lenders of their money.

We agree that some attempt was made by Grife to pay off some of the loans. He paid off the second Shoppers mortgage. By Judge Silberstein’s own admission, Grife paid off most of the interest on the Silberstein loan according to the terms of that loan.

The gravamen of the crime of theft by deception, however, is the fraudulent taking of the property of others. That Grife might have had plans to pay the creditors back is of no moment. What Grife did was put the property entrusted to him by the lenders significantly more at risk than the mortgagees realized. When a borrower places the property of another at risk of destruction or loss, and this risk is unknown to the lender because of an intentional misrepresentation of the borrower, the borrower has committed theft by deception by defrauding the lender.

We are persuaded by the reasoning of the Maryland Court of Special Appeals, which noted the following:

One who is asked to lend money or to sell goods on credit has a right to determine for himself whether he chooses to be a secured creditor or an unsecured creditor, and if he chooses to be the former he has a right to know about the security. One who has extended credit in reliance upon a mortgage on real estate which is falsely represented to be a first mortgage when in fact it is subject to a prior recorded mortgage for more than the land is worth, or is a mortgage upon property which the mortgagor does not own, has been defrauded, even if the debtor has an intent to pay the debt. The lender intended to be a secured creditor but by reason of the false representation his position is for all practical purposes that of an unsecured creditor. There is an obvious and unreasonable risk of loss which has been forced upon him, without his knowledge or consent, by reason of the deceit. This risk which the creditor did not intend to assume was imposed upon him by the intentional act of the debtor, and this amounts to an intent to defraud.

Baskerville v. State, 23 Md.App. 439, 446, 327 A.2d 918, 922 (Md.Ct.Spec.App.1974) (quoting Perkins, Criminal Law, (2d Edition 1969) at 312-13).

The mens rea for theft by deception is this intent to defraud. Grife’s purposeful intent to give his lenders less than what they bargained for in order to procure their property evidenced the guilty-mind requirement of the Crimes Code. Falsifying the mortgage record and deceiving the mortgagees with it was the wrongful deed.

Section 3922 of the Crimes Code, our theft-by-deception statute, was meant to broaden the law of “false pretense.” See 18 Pa.C.S.A. § 3922 — Official Comment-1972; see also Commonwealth v. Imes, 424 Pa.Super. 633, 637-38, 623 A.2d 859, 862 (1993) (noting that theft by deception was the crime of attempted false pretenses). We are persuaded by the thoughtful analyses of the courts of sister states which have held that, in cases such as the one sub judice, an intent to repay the loan or return the property does not necessarily ameliorate defendant’s guilt. See, e.g., State v. Farrah, 161 Conn. 43, 282 A.2d 879 (1971); State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964); Adams v. State, 650 So.2d 1039 (Fla.App.1995); Thompson v. State, 585 So.2d 492 (Fla.App.1991), opinion adopted, 607 So.2d 422 (1992); Baskerville, supra; Rosengarten v. State, 171 So.2d 591 (Fla.App.), cert. denied, 177 So.2d 476 (Fla.1965).

We agree with the following persuasive commentary in Baskerville that an intent to repay does not necessarily negate the crime of false pretenses.

Instructive in this regard is Clark and Marshall’s Law of Crimes (Wingersky Edition, 1958) at 823:
“If a person, however, obtains money or goods by false pretenses, he is none the less guilty because he intends to repay the money or pay for the goods, for ‘an intent to defraud is consistent with an intent to undo the effect of the fraud if the offender should be able to do so.’ That there is ability as well as intent to repay is no defense. Even an offer to repay or actual payment is no defense.” See Commonwealth v. Schwartz, [13 Ky.L.Rptr. 929,] 92
Ky. 510, 18 S.W. 775 [(1892)]; People v. Oscar, 105 Mich. 704, 63 N.W. 971 [(1895)].
The same point is made in 32 Am.Jur.2d False Pretenses, § 33, “Intent to defraud,” at p. 197:
“If an accused had the requisite intent, he may be guilty of obtaining money or property by false pretenses even though he may have intended to repay the money or restore the property.”
See also Perkins, Criminal Law (2d Edition, 1969) at 312-313:
“It is now necessary to emphasize that an intent to repay will not necessarily prevent guilt of this crime.... [”]

23 Md.App. at 445-56, 327 A.2d at 922.

In a similar vein, the Florida Court of Appeals summarized what it means to intentionally defraud, to-wit:

A man is defrauded if, by intentionally false representations of fact he has been induced to make a donation, or has been induced to pay money or to deliver property upon receipt of something quite different from what he understood he was getting or has been induced to lend money upon the strength of security which is not what it is represented to be.

Rosengarten, 171 So.2d at 595 (quoting Perkins, Criminal Law (1957) at 268) (alteration in original).

In his appeal, Grife cites for support the following cases: Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Bruce, supra; Commonwealth v. Peduzzi, 338 Pa.Super. 551, 488 A.2d 29 (1985); and Common wealth v. Bentley, 302 Pa.Super. 264, 448 A.2d 628 (1982). He maintains that these cases support the proposition that a defendant cannot be found guilty of theft by deception without proving a concurrent intent not to repay the victims. As we have stated, simply having a good intention to repay money that one has lied to procure and then placed at an unreasonable risk of loss is not enough to avoid criminal liability, however.

The cases cited by Grife are distinguishable from the case sub judice. In Gallo, the deception was held not to be a misrepresentation as to a material fact affecting the contract. Gallo, 473 Pa. at 189-90, 373 A.2d at 1111 (holding that a sole proprietor who held himself out as an account representative of a national company had not misrepresented a matter that had pecuniary significance). Here, however, the lenders would not have made the loans but for the doctored title searches.

In Brace, a lumber broker/wholesaler, who had received an extension of credit, did not use deceit to procure any unpaid-for merchandise, but rather lied to his supplier about not having received the necessary payments from his own buyer after he fell behind in his payments. Bruce, 414 Pa.Super. at 421-22, 607 A.2d at 296 (holding that the evidence was insufficient to prove that appellant did not intend to pay for the lumber he received). In the instant case, however, Grife specifically misrepresented the value of the mortgages before he received the loans.

In Bentley, the only deceit the Commonwealth could point to was the fact that the appellant, a building contractor, had used some of the proceeds from a home repair contract for unrelated business purposes. Bentley, 302 Pa.Super. at 270, 448 A.2d at 632. As this was not barred by the contract between appellant and complainants, however, we held that the evidence was insufficient to prove that appellant committed theft by deception. Id. at 268-69, 448 A.2d at 631-632 (“Our review of the record fails to show any evidence as to appellant’s intent, except his failure to perform. This alone is insufficient.”). Here, however, Grife clearly deceived the mortgagees as to a material aspect of the loans.

In Peduzzi, an automotive parts store owner borrowed money, purportedly to purchase spark plugs, spark plug wires, and oil filters. Peduzzi, 338 Pa.Super. at 555-56, 488 A.2d at 32. The defendant, Alfred Peduzzi, testified that the spark plugs he purchased were cracked and had no value. Id. The trial court found Peduzzi’s testimony incredible. He was convicted following a bench trial for theft by failure to make required disposition of borrowed money. Id. at 553, 488 A.2d at 30. This was overturned following post-trial motions, however, and the trial court instead amended its verdict and found Peduzzi guilty of theft by deception. Id.

We held that the altering of the verdict after trial was error. Id. at 553-54, 488 A.2d at 31. Additionally, we went on to state that the evidence was insufficient to find Peduzzi guilty of theft by deception, as the fact that he might have lied about the quality of the spark plugs did not in fact prove that he indeed failed to purchase them. Id. at 553-54, 557-59, 488 A.2d at 31, 33. Therefore, that Peduzzi misrepresented the reason he failed to repay his lenders did not necessarily mean that he never intended to pay them. Once again, because Peduzzi may have lied about something that occurred after the loans were procured is distinguishable from the case sub judice, where Grife’s misrepresentations were a material prelude to the granting of the mortgages.

Grife is correct in stating that these cases support the proposition that mere failure to perform on a contract, or repay a loan, in and of itself does not constitute theft by deception. To hold otherwise would not only be contrary to the Crimes Code, but would also make our theft by deception statute the entrance way to debtor’s prison.

Grife did more than simply fail to repay a loan, however. He defrauded his creditors as to the value of the mortgages they received. He stole money that the lenders could have put to better use, not because the loans eventually “went south,” but because had the creditors known the true position of their mortgages, and to what extent Grife had mortgaged the property, they would not have made those loans. Louis Kassen, attorney for Financial, testified that had Financial known its mortgage was in third position, it would not have lent Grife the money. N.T. 9/23/92 at 119. That was because Financial would not be able to sell a third-priority mortgage. Id. Malcolm Blumberg, who represented Northwood, testified that had he known about the $11,800 Shoppers mortgage, he would not have loaned Grife $100,000. Id. at 49-50. Blumberg stated that as this was the largest loan Northwood had made up to that time, it would not have accepted anything less than a first-priority mortgage. Id. at 50. When Judge Silberstein learned of the true equity in the house, he refused Grife a second loan. N.T. 7/13/93 at 89. Finally, regarding Ghen, it can be safely assumed that he would not have lent Grife and his mother $10,000 if he knew that his security was a fully satisfied mortgage.

In Peduzzi we stated that where the property appropriated from others was obtained in the form of a loan, “it was essential that appellant obtained] the loans by deception intending not to repay the moneys borrowed” for a conviction of theft by deception to be affirmed. Peduzzi, 338 Pa.Super. at 557-59, 488 A.2d at 33 (citations omitted). We further stated that appellant’s “intention not to repay the loans at the time the moneys changed hands was a matter of proof. It could not be inferred from the fact alone that he was unable subsequently to repay the moneys.” Id. (citation omitted). Nevertheless, because in this case, absent the fraudulent representations, Grife would not have received the loans, we find this case distinguishable.

Except where a defendant may be held strictly liable for committing an offense, guilty knowledge or criminal intent is elemental to any misdeed. In the Interest of G.T., 409 Pa.Super. 15, 19, 597 A.2d 638, 640 (1991) (citations omitted). “Criminal intent may be established by direct or circumstantial evidence. ‘It may be inferred from acts or conduct or the attendant circumstances.’ ” Commonwealth v. Parker, 387 Pa.Super. 415, 421, 564 A.2d 246, 249 (1989) (quoting Commonwealth v. Russell, 313 Pa.Super. 534, 543, 460 A.2d 316, 321 (1983), allocatur denied, 526 Pa. 632, 584 A.2d 315 (1990). Showing intent not to repay a loan is only one method of proving intent to commit theft by deception. Proof that a mortgagor took a loan he knew would not have been granted but for his own acts of deception, is another. Such an act cheats the lender of the time value of his money, the lost opportunity to better secure the loan or find a more suitable mortgagor, and the opportunity to negotiate a higher interest rate, not uncommon when a loan is perceived to be more at risk. Moreover, as we stated supra, it places the property of the lender at a greater risk of loss than he was otherwise led to believe. Where the evidence is sufficient to prove beyond a reasonable doubt that it was the borrower’s intention to so defraud his creditors, a conviction for theft by deception will stand.

The defendant in Peduzzi “was an unorthodox, perhaps even incompetent, businessman who found it necessary to borrow frequently. His practice was to borrow significant sums of money at excessive rates of interest for relatively brief periods of time.” Peduzzi, 338 Pa.Super. at 555, 488 A.2d at 32. Where Peduzzi seemed to be a poor and naive merchant who became overextended through high interest rates, in contrast, Grife was an experienced professional in conducting title searches who traded off that knowledge to dupe friends, business partners, and business acquaintances. Where the only lies the trial court found when erroneously convicting Peduzzi were in his explanations for his business losses, Grife falsely represented the Northampton encumbrances at the beginning and all throughout his transactions with the various mortgagees. Thus, while we stated that there was no evidence Peduzzi intended to defraud his lenders, the evidence here, viewed in the light most favorable to the Commonwealth, is sufficient to prove that Grife misrepresented the value of the mortgage with the intent to defraud the lenders out of the true value of their loans, regardless that he might have hoped to return their property with interest.

Even if we were to agree that Grife lacked the necessary intent to be convicted of theft by deception as that offense is defined in part (a)(1) of Section 3922, we believe that Grife still committed theft by deception as it is defined in parts (a)(2) and (3) of that same section. Theft by deception is the machination of deceit to receive property that would not be given save for the falsehood. The first element of the offense is that a person intentionally “obtain[ ] or withhold[ ] property of another.” Grife intentionally received money from the mortgagees that he knew the lenders wanted not only repaid but properly secured.

Grife also actively prevented the lenders from learning the true value of the mortgaged property by falsifying the mortgage record. These acts satisfy part (a)(2) of the definition of theft by deception, which states that “[a] person deceives if he intentionally ... (2) prevents another from acquiring information which would affect his judgment of a transaction.” Moreover, acting as the title agent, Grife stood in a fiduciary relationship with his creditors. Thus he “fail[ed] to correct a false impression which the deceiver previously created or reinforced, or which the deceiver kn[ew] to be influencing another to whom he st[ood] in a fiduciary or confidential relationship.” 18 Pa.C.S.A. § 3922(a)(3).

In sum, we hold that Grife committed theft by deception when he intentionally defrauded the lenders by obtaining a loan through deceiving the mortgagees on a matter of obvious pecuniary significance — the value of the mortgage given.

Judgment of sentence affirmed.

JOHNSON, J., concurs in the result.

      . 18 Pa.C.S.A. § 901(a).

      . 18 Pa.C.S.A. § 3922(a).

      . Financial sold its mortgage to Security Pacific within a month after settlement. N.T. 7/12/93 vol. 2 at 42.

      . We observe that it was Grife’s habit to pay a prior loan with the proceeds of a subsequent one. While many Americans unwisely roll over debts from one lender to another, at some point unsound fiscal management becomes a pyramid scheme, especially when all the creditors have their loans secured by the same over-mortgaged piece of property.

      . Because we held in Peduzzi that it was error for the trial court to alter its verdict after post-trial motions, our statements as to the insufficiency of the evidence were obiter dicta, and as such are not binding on this Court,

      . See Peduzzi, 338 Pa.Super. at 555-56, 488 A.2d at 32.

      . Id. at 557-59, 488 A.2d at 33.

      . Theft by deception is defined in part: "A person is guilty of theft if he intentionally obtains or withholds property of another. A person deceives if he intentionally:
      (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.”
      18 Pa.C.S.A. § 3922(a)(1).

      . See Commonwealth v. Robichow, 338 Pa.Super. 348, 487 A.2d 1000 (1985), appeal dismissed, 510 Pa. 418, 508 A.2d 1195 (1986), for a discussion of how the various theft offenses have been consolidated into a single offense by Section 3902 of the Crimes Code. See 18 Pa.C.S.A. § 3902 (Consolidation of theft offenses).


author: SAYLOR, Judge:

text:
    664 A.2d 123
    COMMONWEALTH of Pennsylvania v. Leonard KELLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed Aug. 17, 1995.

      George A. Gallenthin, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellee.
    Before ROWLEY, President Judge and TAMILIA and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Bucks County for terroristic threats. We affirm.

In August of 1992, Appellant, Leonard Kelley, was represented in a support matter by an attorney from a Doylestown law firm. At that time, he met attorney William H. Eastburn, III, who was the senior partner of the firm. Approximately eleven months later, in July of 1993, Mr. Eastburn was shot and seriously wounded by a disgruntled client. The matter received extensive news media attention, some of which Appellant viewed on television in August of 1993.

On August 19, 1993, Appellant appeared before the Honorable Michael J. Kane of the Court of Common Pleas of Bucks County concerning a domestic relations matter. At the conclusion of the hearing, the trial court entered an order against Appellant, who became angry and upset, yelling epithets at the judge and gesturing wildly. The judge had some difficulty in trying to calm Appellant, who was making speeches about feeling persecuted and having his constitutional rights violated. Appellant returned home after the hearing and saw the television coverage of the shooting of Mr. Eastburn, whose firm had previously represented him.

On the morning of August 20, 1993, Appellant telephoned Mr. Eastburn’s office, requesting to speak to Mr. Eastburn. The call was answered by Mr. Eastbum’s secretary, who asked Appellant which “Mr. Eastburn” he wished to speak to, informing Appellant that there were two attorneys with that last name at the firm. Appellant replied, “The one she missed. The one in charge,” referring to the fact that a female client had attempted to kill Mr. Eastburn the previous month. The secretary told Appellant that Mr. Eastburn was not in, but asked if she could take a message. Appellant responded, “Yes,” and then told the secretary that he was “going to kill Bill Eastburn and Judge Michael Kane, too, and I am just the guy to do it.” The secretary asked Appellant if he knew what he was saying, and Appellant began yelling and screaming that the judicial system was not fair. Both Mr. Eastburn and Judge Kane were advised of the telephone call; both were obviously upset by the call and took Appellant’s threat seriously, particularly in view of what had recently happened to Mr. Eastburn.

A few days later, Mr. Eastburn’s secretary opened a letter from Appellant to Mr. Eastburn which was post-marked and dated August 20, 1993. In part, the letter stated:

Dear Mr. Eastburn,
I was sorry to hear about your unfortunate incident. Guns that run loose and are easily available are a problem. Let’s get to the heart of the problem, judges and lawyers ... When I was in your office in the presence of Mr. Williams, I said my story briefly of how I was jailed by Michael Kane ... Judge Kane wouldn’t even listen to me on August 19, 1993, Thursday. No checks and balances. No accountability of the law. Immune judges....

A warrant for Appellant’s arrest was issued by a district justice on August 20,1993. Appellant was arrested that same day and was charged with two counts of terroristic threats. A preliminary hearing was held and the charges were bound over for trial. Appellant was tried before a jury on December 7, 1993. At trial, Appellant testified on his own behalf and admitted to yelling at Judge Kane on August 19, 1993, “Judge Kane, you stink!” He also admitted that he had telephoned Mr. Eastburn’s office on August 20, 1993 and had told the secretary that he was sorry for what had happened to her boss, but that it was going to happen again if judges like Judge Kane were not removed from the bench. Appellant denied that he threatened to kill anyone. The jury found Appellant guilty of both counts of terroristic threats.

Appellant, after being advised of his post-trial rights, filed post-trial motions, challenging the weight and sufficiency of the evidence, asserting that the trial court had failed to properly charge the jury, and moving for an arrest of judgment or a new trial. The trial court denied the motions.

Following the completion of a pre-sentence investigative report, Appellant was sentenced to six to fifty-nine and one-half months imprisonment in the county jail for the first count of terroristic threats against Mr. Eastburn. With respect to the second count of terroristic threats against Judge Kane, Appellant was sentenced to a probationary term of five years, to run consecutive to his sentence for the first count. This appeal followed.

On appeal, Appellant sets forth the following issues:

1) Whether Appellant’s arrest was illegal, when he was arrested without probable cause and there was no original arrest warrant?
2) Whether a change of venue would have been proper when there was a conflict of interest because a fellow trial judge and fellow former Bucks County District Attorney were the victims in this case?
3) Whether the prosecution failed to establish a prima facie case of terroristic threats when the secretary who communicated the threat had not been terrorized by Appellant nor instructed by him to communicate the threat to the victims?
4) Whether the evidence was sufficient to sustain the verdict when there was no evidence of direct contact between Appellant and the victims?
5) Whether the trial court erred in denying Appellant’s motion for a jury charge on the common law requirement that direct contact exist between the perpetrator and the victims?
6) Whether the evidence was sufficient to sustain the verdict when there was no proof that Appellant intended to terrorize either of the victims?
7) Whether the verdict was against the weight of the evidence when the Commonwealth only offered evidence of transitory anger?
8) Whether the sentence was excessive, based upon the sentencing court’s alleged statement that Appellant’s sentence was to send a message to future perpetrators who terrorize judges of the Bucks County Court of Common Pleas?

Appellant first claims that his arrest was illegal because he was arrested without probable cause and without an original warrant. This issue was not raised in Appellant’s post-trial motions, however, and accordingly, has been waived. See, Commonwealth v. Copeland, 381 Pa.Super. 382, 385, 554 A.2d 54, 55 (1988) (“It is well settled that only issues raised in post-trial motions are preserved for appellate review.”). However, even if Appellant’s claim had been properly preserved, it is nonetheless meritless. The evidence on the record indicates that the district justice who issued the arrest warrant was presented with an affidavit of probable cause on August 20, 1993 by a police detective. A criminal complaint was signed and prepared by the district justice, and on August 20,1993, a warrant was issued and signed by the district justice, was attached to the criminal complaint, and was given to the police to serve. Thus, the arrest warrant was properly obtained and executed.

Secondly, Appellant contends that a change of venue was proper in this case because there was a conflict of interest due to the fact that one of the victims was a trial judge and the other victim had been a district attorney for Bucks County. This issue was never raised in Appellant’s omnibus pretrial motion, and accordingly, is waived.

In his third issue, Appellant asserts that the prosecution failed to establish a prima facie case at the preliminary hearing because the communicator of the threat, Mr. East-burn’s secretary, was not terrorized herself, nor was she instructed by Appellant to communicate the threat to the victims.

At a preliminary hearing, the Commonwealth bears the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. To sustain that burden the Commonwealth must produce evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged; consequently, absence of evidence as to the existence of a material element is fatal. This standard does not require that the Commonwealth prove the elements of the crime beyond a reasonable doubt nor that evidence is available that would prove each element at trial beyond a reasonable doubt.

Commonwealth v. Austin, 394 Pa.Super. 146, 150-151, 575 A.2d 141, 143 (1990) (citations omitted).

There is no merit to this argument. First, the Commonwealth was not required to produce evidence that the person to whom Appellant communicated the threat was actually frightened. See, 18 Pa.C.S.A § 2706; Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215 (1993). Moreover, once a defendant has gone to trial and has been found guilty of a crime, any alleged defect in the preliminary hearing is rendered immaterial. Commonwealth v. Jacobs, 433 Pa.Super. 411, 640 A.2d 1326 (1994); Commonwealth v. Worrall, 415 Pa.Super. 478, 609 A.2d 851 (1992). “Where, as in the instant case, ‘it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless.’ ” Commonwealth v. Jacobs, 433 Pa.Super. at 420, 640 A.2d at 1330, quoting Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980).

With respect to Appellant’s fourth and sixth issues concerning the sufficiency of the evidence, we note that in reviewing sufficiency claims, this court must

view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989), quoting Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984).

Section 2706 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 2706, provides:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another ... or in reckless disregard of the risk of causing such terror....

Appellant claims that the evidence was insufficient to support his conviction for terroristic threats because there was no direct contact between himself and the victims, and because there was no evidence that he intended to terrorize either of the victims.

Contrary to Appellant’s assertion, direct communication of threat between the perpetrator and the victim is not a requisite element of the crime of terroristic threats. Rather, to obtain a conviction for making a terroristic threat, the Commonwealth must prove that: 1) the defendant made a threat to commit a crime of violence; and 2) such threat was communicated with the intent of terrorizing another or with reckless disregard for the risk of causing terror. Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215 (1993).

In Campbell, the defendant approached a cashier in a convenience store and told her that the cashier who had been on duty when he was in the store on the previous day had gestured to him in a manner which he did not appreciate. He then indicated that he was planning to shoot himself and told the cashier to give a message to the cashier who had offended him that “when I decide to do this, it will be on her shift and there will be lots go down.” Both cashiers were frightened by the defendant’s remarks, and the defendant’s conviction for making a terroristic threat was affirmed by the Superior Court.

Here, the evidence on the record established that Appellant made a threat to commit a crime of violence and that he communicated such threat to Mr. Eastburn’s secretary, when she asked if she could give Mr. Eastburn a message. This threat was in turn communicated to the intended recipients, Mr. Eastburn and Judge Kane. Accordingly, Appellant’s conduct met the requirement that the threat be communicated to the victims.

Section 2706 of the Crimes Code also requires that the threat be communicated with either the intent to terrorize or a reckless disregard of the risk of causing such terror. Therefore, Appellant’s assertion that the evidence was insufficient to support his conviction because there was no proof that he intended to terrorize the victims is meritless, since the evidence on the record established that Appellant’s conduct was deliberate and premeditated. Furthermore, the fact that Appellant threatened to Mil both Mr. Eastburn and Judge Kane established that he did indeed manifest the intent to terrorize them. See, Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981) (defendant’s threats to “MU” the victim established defendant’s intent to terrorize the victim). Accordingly, Appellant’s intent to terrorize can be inferred from his actions and from the message he communicated to Mr. Eastburn’s secretary, and the evidence adduced at trial was sufficient to establish all of the elements of the crime of terroristic threats beyond a reasonable doubt.

In his fifth issue, Appellant contends that the trial court erred in refusing to charge the jury regarding the “common law requirement” that direct contact had to exist between Appellant and the victims for Appellant to be guilty of terroristic threats. As previously discussed in conjunction with Appellant’s sufficiency claims, there is no requirement that there be a direct contact between the perpetrator and the victim to sustain a conviction for terroristic threats; rather, the only elements required by both statute and case law are that the defendant threaten to commit a crime of violence and that he communicate the threat with the intent to terrorize or with reckless disregard for the risk of causing terror. See, 18 Pa.C.S.A. § 2706; Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215 (1993); Commonwealth v. Cancilla, 437 Pa.Super. 317, 649 A.2d 991 (1994). Accordingly, the trial court did not err in refusing to give a jury instruction that was not in accordance with the law. See, Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990) (trial court’s jury charge will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations).

In his seventh issue, Appellant claims that the verdict was against the weight of the evidence because the evidence only established transitory anger on his part, and not the intent to terrorize. Appellant’s claim, although couched in terms of the weight of the evidence, is actually a challenge to the sufficiency of the evidence. As previously noted, the evidence on the record established that Appellant’s actions were deliberate and that his threat was not a “spur of the moment threat which results from anger,” which the Superior Court has held insufficient to support a conviction for terroristic threats. See, Commonwealth v. Hardwick, 299 Pa.Super. 362, 366, 445 A.2d 796, 798 (1982), citing Commonwealth v. Sullivan, 269 Pa.Super. 279, 409 A.2d 888 (1979). Furthermore, the trial court noted in its opinion that “A review of the testimony ... discloses premeditated, intentional conduct on [Appellant’s] part rather than a contemporaneous expression of anger,” and Appellant’s testimony that he did not threaten to kill anyone and that his actions were motivated by a merely transitory anger was not found credible by the jury, which as the finder of fact, is free to believe all, part or none of the evidence presented at trial. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989); see also, Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989) (jury’s function is to determine credibility of witnesses). Accordingly, we will not disturb the jury’s finding that Appellant’s conduct was not the product of a fleeting rage, but rather was the result of a conscious, deliberate intent to terrorize the victims.

Finally, Appellant asserts that his sentence was excessive because the trial court imposed it solely for the purpose of deterring “future perpetrators who terrorize judges.” This issue has been waived as a consequence of Appellant’s failure to file a motion for reconsideration of sentence. However, even if Appellant’s sentencing claim was properly before this court, it is meritless.

The trial court, in sentencing Appellant, considered the circumstances surrounding the crime, had ample opportunity to observe Appellant, and took into consideration factors such as: the weight and sufficiency of the evidence; the seriousness of the offense; Appellant’s refusal to admit his crime or to undergo counselling; and deterrence in general. The trial court clearly stated these factors on the record at sentencing, and in its opinion succinctly stated the gravamen of the crime and the necessity for the sentence imposed, including long-term supervision of Appellant:

Terroristic threats is a first degree misdemeanor and carries up to five years in jail. In this case, there were two counts of terroristic threats involving two victims. One, the attorney, had recently been shot and seriously wounded by a disgruntled client. Defendant had been a client of his law firm. The second, the Judge, had presided over Defendant’s domestic case just the day before, and had entered an order against Defendant. These threats were made by Defendant as a result of premeditation and were intentionally made to terrorize the victims.
One threat was made against an attorney, who was still recovering from a gun shot wound to the heart by a disgruntled client. He nearly died as a result. He testified that he took Defendant’s threat seriously and was upset by it. The threat made against the Judge followed a hearing the day before on which an order was entered against Defendant. This victim also testified that he took the threat seriously. Defendant could have received a total penitentiary jail sentence of five to ten years. The undersigned believes the sentence of six months in the Bucks County Correctional Facility was not excessive based on the crimes committed. Also, this Court strongly believes Defendant should be under supervision for ten years.

Opinion, 12-12-94, p. 3.

Additionally, the sentencing transcript reveals that the trial court relied upon the pre-sentence report in imposing sentence. Where a sentencing judge has the benefit of a presentence report, it will be presumed that he was aware of all relevant information regarding the defendant’s character and that he weighed those considerations. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). The sentence which Appellant received was well within the statutory range for conviction of multiple counts of a first degree misdemeanor, and was amply supported by the evidence on the record. Accordingly, Appellant’s sentencing claim is meritless.

Having found no merit to Appellant’s claims, we affirm the judgment of sentence.

      . Because the determination of guilt in this case occurred prior to January 1, 1994, the provisions of former Rule 1410 apply. Therefore, in order to preserve sentencing issues for appellate review, Appellant was required to file a motion for reconsideration of sentence. See, Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750 (1992).


author: CERCONE, Judge:

text:
    664 A.2d 129
    Cindy STRAWN v. Jeffrey STRAWN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Aug. 18, 1995.

      Charles E. Kurowski, Canonsburg, for appellant.
    Thomas O. Vreeland, Washington, for appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal from orders requiring appellant (husband) to pay spousal support and denying appellant’s petition for rehearing of the award of support. We vacate both orders and remand for farther proceedings.

Appellee (wife) filed a complaint in support on January 29, 1992, and an amended complaint on July 21, 1994. A support master conducted a hearing on August 17, 1994. On September 12, 1994, the master filed his report recommending that appellant pay spousal support in the amount of $1,220.00 per month. Appellant filed exceptions to the master’s report on September 21, 1994. He also filed a petition for rehearing on October 17, 1994 which the lower court denied on the same date. On that date, the lower court also dismissed appellant’s exceptions (after having heard argument on them) and entered a final order of support in the amount of $1,220.00 per month. Appellant filed timely appeals of the lower court’s October 17, 1994 orders, in which he raises the following issues:

1. Whether appellee (wife) should be assessed an earning capacity regardless of her misrepresentation in obtaining a “0” earning capacity order?
2. Whether the court may deny a petitioner a hearing on the merits of his petition requesting a new hearing based on appellee’s misrepresentations to the court?

Our standard of review of an order of spousal support is as follows:

We may reverse a support order only where the order cannot be sustained on any valid ground. Absent an abuse of discretion or insufficient evidence to sustain the support order, this court will not interfere with the broad discretion afforded the trial court ... Where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable and must be reversed.

McKolanis v. McKolanis, 435 Pa.Super. 103, 644 A.2d 1256 (1994).

Appellant contends that appellee misrepresented her work experience at the hearing before the master. He asserts that appellee had some prior work experience despite her testimony that she had worked primarily in the home during the marriage. Further, appellant contends that the lower court should have imputed an earning capacity to appellee regardless of her representation at the hearing. Appellant asserts that appellee is able-bodied and has no children and should have been assigned at least a minimum earning capacity.

We will first address appellant’s contention that appellee misrepresented her prior work experience at the hearing before the master. At the hearing before the master, counsel for appellee questioned appellee as follows:

Q. Are you currently employed?
A. No.
Q. How long have you been married?
A. Sixteen years and a few months.
Q. And throughout the marriage were you primarily just employed at home?
A. Correct.
Q. Now, you have prepared a budget information sheet and we have given one to the Support Hearing Officer. I note that there’s no income listed. You have no income? A. Correct.

N.T., August 17, 1994, at 3-4.

Appellant contends that appellee misrepresented herself on the basis of her affirmative answer to the question “throughout the marriage were you primarily just employed at home?” Appellant asserts that appellee was employed prior to filing her petition for spousal support but that she had quit her job. Appellant admits that he did not introduce this evidence at the hearing.

It is obvious that even if appellant’s contention that appellee worked prior to filing the instant petition for support, such a fact would not make incorrect her response that she was primarily employed at home throughout the marriage. Although this issue was not explored at the hearing, it is certainly possible that appellee was truthful in her statement even if she had been employed immediately prior to filing the support petition.

We turn now to appellant’s contention that the court should have computed an earning capacity to appellee regardless of her representations as to her prior employment. An award of support must be fair, non-confiscatory, and attendant to the circumstances of the parties. Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991). The function of the court in a proceeding for spousal support “is not to punish a husband ... but to fix an amount which is ‘reasonable and proper for the comfortable support and maintenance of ... [his] wife.’ ” Id. at 296, 592 A.2d at 342 (quoting Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 395, 237 A.2d 181, 186 (1967)). Spousal (and child) support are to be awarded pursuant to a statewide guideline as established by general rule by the Pennsylvania Supreme Court. 23 Pa.C.S.A. § 4322(a). See Pa.R.C.P., Rule 1910.16-1, 42 Pa.C.S.A. (Amount of Support. Support Guidelines). The support “guideline” is to be “based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support.” 23 Pa.C.S.A. § 4322(a). “In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.” Id. (emphasis added). A person’s earning capacity is defined “not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Myers v. Myers, supra, 405 Pa.Super. at 297, 592 A.2d 339, 342 (1991). In addition, a court should consider the amount of time that a wife has been out of work during her marriage. Adams v. Adams, 387 Pa.Super. 1, 563 A.2d 913 (1989).

In the instant case, the master determined that “Plaintiff [appellee] is unemployed and has not worked during the entire course of the 16 years of marriage.” On this basis, the master concluded that he would assess no earning capacity against her. Absent from the master’s discussion was any consideration of appellee’s age, her health, her mental and physical condition, or any training she might have received. The master focused exclusively on one factor, i.e., the amount of time that appellee had been out of the work force. While it is possible that sixteen years out of the work force could result in an earning capacity of zero, that conclusion can be reached only if the other relevant factors are considered.

The lower court determined that appellant waived this issue because he failed to question appellee about her earning capacity at the master’s hearing. We disagree. Here, appellee filed a complaint seeking spousal support. Thus, it was her burden to prove and the lower court’s duty to assess her entitlement to it. Appellant was not represented by counsel at the master’s hearing, and pro se status generally confers no special benefit upon a litigant. Triffin v. Janssen, 426 Pa.Super. 57, 626 A.2d 571 (1993), appeal denied, 536 Pa. 646, 639 A.2d 32 (1993). In this case, however, in the absence of questioning by appellant, who was the defendant in the support action, the master should have questioned appellee, the party seeking support, as to factors relating to her earning capacity. By statute, the court must consider the parties’ earning capacities in a support action. 23 Pa.C.S.A. § 4322(a), supra. For the court to make a support award without some inquiry into the factors related to a party’s earning capacity would be to ignore the requirements of section 4322(a). Since appellant failed to develop the factors related to appellee’s earning capacity, it was the duty of the lower court to inquire into them in order to make a fair and non-confiscatory award.

As we have previously indicated, where there is insufficient evidence to support the trial court’s order, the judgment is manifestly unreasonable. McKolanis v. McKolanis, supra. Here, the evidence is not sufficient to support the trial court’s conclusion that appellee has no earning capacity in the absence of the court’s consideration of all of the factors relevant to that determination. Since the lower court’s decision is based on insufficient evidence, we must vacate it and remand it to the lower court for reconsideration.

Because of our decision on this issue, appellant’s appeal of the order denying his petition for rehearing is moot, and it is not necessary for us to consider appellant’s second issue on appeal.

Both orders of October 17, 1994 are vacated; case is remanded to lower court for further proceedings in accordance with this opinion; jurisdiction is relinquished.

      . We are not suggesting that the court act as counsel for defendants in support actions. However, it was an abuse of discretion for the lower court in this case to make an award of support in the absence of evidence related to appellee's earning capacity. The parties in domestic relations actions are frequently unable to afford counsel and, unlike defendants in criminal actions, defendants in domestic relations actions are not entitled to have counsel appointed for them. It was inappropriate in this case for the lower court to rely on the waiver doctrine to avoid a proper assessment of appellee’s earning capacity.


author: ROWLEY, President Judge.

text:
    664 A.2d 133
    COMMONWEALTH of Pennsylvania v. George R. BRAYKOVICH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 21, 1995.
    Filed Aug. 8, 1995.

      Stephen Delpero, Sharon, for appellant.
    William M. Panella, District Attorney, New Castle, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.
   ROWLEY, President Judge.

This is an appeal from a judgment of sentence of probation in which appellant George R. Braykovich argues that the trial court erred when it denied his motion to dismiss pursuant to Pa.R.Crim.P. 1100. We affirm,.

On April 6, 1989, appellant was charged with theft by unlawful taking, criminal mischief, criminal conspiracy, and receiving stolen property. Those charges were based on the removal of timber from the property of Trilli & Dunbar, Inc. (Trilli property). On the same date, a second complaint was filed charging the same offenses involving an adjacent property, owned by Ellwood City Rod and Gun Club (Ellwood property). At a preliminary hearing, the charges stemming from the removal of timber on the Trilli property were dismissed. Subsequently, the charges stemming from the Ellwood property were nolle prossed by the Commonwealth because appellant’s co-defendant had made restitution. On February 26, 1993, only the charges relating to the Trilli property were refiled. Appellant filed a motion to dismiss the Trilli charges, arguing that his prosecution in 1993 would constitute a violation of Rule 1100. The motion was denied. The Commonwealth withdrew the charge of conspiracy, and the case proceeded to trial. The trial court granted a demurrer on the charge of receiving stolen property. On February 15, 1994, appellant was found guilty by a jury of theft by unlawful taking, and on April 12, 1994, he was sentenced to a period of four (4) years probation and fined $20,000.00. On April 19, 1994, appellant filed a motion in arrest of judgment. On September 13, 1994, the motion in arrest of judgment was denied, and appellant filed this appeal on October 11, 1994.

Before reaching the merits of this appeal, we must address the post-sentence procedure in this case. That procedure is governed by Pa.R.Crim.P. 1410, the current version of which is effective as to cases in which the determination of guilt occurs on or after January 1, 1994. Rule 1410 provides, in pertinent part:

A. Timing.
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed within 30 days of the entry of the order deciding the motion, or, if the judge fails to decide the motion, within 30 days of the entry of the order denying the motion by operation of law.
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B. Optional Post-sentence Motion.
(1) Generally.
(a) The defendant in a court case shall have the right to make a post-sentence motion....
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(3) Time Limits for Decision on Motion.
(a) Except as provided in subsection (3)(b), [permitting, for good cause shown, one 30-day extension] the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in subsection (3)(b), the motion shall be denied by operation of law. (emphasis added)

In the instant case, the trial judge failed to decide the post-sentence motion within 120 days. Thus, the motion should have been denied by operation of law. Rule 1410 B(3)(a). Rule 1410 B(3)(c) sets forth the procedure which follows a denial by operation of law:

(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration, (emphasis added)

When a post-sentence motion is denied by the trial court or by operation of law, the clerk of courts shall enter an order, pursuant to Rule 1410 B(4), the contents of which are as follows:

(4) Contents of Order. An order denying a post-sentence motion, whether signed by the judge or entered by the clerk of courts, shall include notice to the defendant of the following:
(a) the right to appeal and the time limits within which the appeal must be filed;
(b) the right to assistance of counsel in the preparation of the appeal;
(c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 316; and
(d) the qualified right to bail under Rule 4010.B.

The comment to the aforementioned section of Rule 1410 enunciates the intent behind the notice requirement as follows:

Subsection B(4) protects the defendant’s right to appeal by requiring that the judge’s order denying the motion, or the clerk of courts’ order denying the motion by operation of law, contain written notice of the defendant’s appeal rights. This requirement insures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 1405.C(3). (emphasis added)

In the instant case, the clerk of courts failed to enter the appropriate order “forthwith,” denying the motion by operation of law. Thus, appellant filed his appeal after the expiration of 120 days.

It is well-settled that appellate courts cannot extend the time for filing an appeal. Pa.R.A.P. 105(b) provides as follows:

An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time, but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review, (emphasis added)

However, the official note to Pa.R.A.P. 105 creates an exception to this rule: “Subdivision (b) of this rule is not intended to affect the power of a court to grant relief in the case of fraud or breakdown in the processes of a court.” As recognized by this Court, the official note makes it clear that the appellate courts retain the power to grant relief from the effects of a breakdown in the court system:

It is well-established that the extension of the filing period or the allowance of an appeal nunc pro tunc will be permitted only in extraordinary circumstances, namely, fraud or some breakdown in the processes of the court. Pa.R.A.P. 105(b) note; West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Englert, 311 Pa.Superior 78, 81, 457 A.2d 121, 123 (1983); Maxton v. Philadelphia Housing Authority, 308 Pa.Superior 444, 448, 454 A.2d 618, 620 (1982); Conrad v. Kemmerer, 301 Pa.Superior 410, 412, 447 A.2d 1032, 1034 (1982); Marcinak v. Lavery, 286 Pa.Superior 92, 96, 428 A.2d 587, 589 (1981); International Brotherhood of Electrical Workers v. Cardo, 259 Pa.Superior 65, 67, 393 A.2d 718, 719 (1978); Provident National Bank v. Rooklin, 250 Pa.Superior 194, 199, 378 A.2d 893, 895 (1977); MacKanick v. Rubin, 244 Pa.Superior 467, 470-71, 368 A.2d 815, 817 (1976); Leveto v. National Fuel Gas Distribution Corp., 243 Pa.Superior 510, 516, 366 A.2d 270, 273 (1976); Scharfman v. Philadelphia Transportation Co., 234 Pa.Superior 563, 571 n. 7, 340 A.2d 539, 543 n. 7 (1975); Riley’s Grille Liquor License Case, 213 Pa.Superior 46, 48, 245 A.2d 725, 726 (1968); Southwest Philadelphia Plumbing Supply v. Catanzaro, 181 Pa.Superior 209, 212, 124 A.2d 476, 477 (1956); Perin v. Gochnauer, 173 Pa.Superior 609, 612, 98 A.2d 755, 756-57 (1953).

Moring v. Dunne, 342 Pa.Super. 414, 417, 493 A.2d 89, 91 (1985). This Court has further stated:

[PJrior to the adoption of the Pennsylvania Rules of Appellate Procedure, (Pa.R.A.P.), 42 Pa.C.S., Pennsylvania case law was unequivocal on the effect of a failure to perfect a timely appeal. Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974), summarized the applicable case law:
“In taking an appeal, the appellant must comply with all applicable statutory requirements. Massachusetts Bonding & Insurance Company v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938). Pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502 (17 P.S. § 211.502(a)) an appeal to this court ‘from any order shall be filed within thirty days of its entry.’ Time limitations for the taking of appeals have been strictly construed by Pennsylvania courts in the past. See, e.g., Commonwealth v. Peters, 178 Pa.Super. 82, 113 A.2d 327 (1955); Commonwealth v. Schneiderman, 162 Pa.Super. 461, 58 A.2d 196 (1948). It is also recognized that ‘[w]hen an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent.’ Commonwealth v. Wright, 187 Pa.Super. 39, 42, 142 A.2d 336, 337 (1958). See also Ifft v. Hunter, 202 Pa.Super. 487, 489, 198 A.2d 436, 437 (1964) (‘we [Superior Court] must take notice of the defect [untimely appeal] and there is no room for the exercise of discretion on our part’); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965) (cases cited therein); Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa.Super. 440, 136 A.2d 135 (1957).”

Provident National Bank v. Rooklin, 250 Pa.Super. 194, 196-97, 378 A.2d 893, 894 (1977) (emphasis added). Although our courts demand strict compliance with statutorily mandated time limitations for the taking of appeals, there has long been established an exception where a “showing of fraud or its equivalent” will excuse an untimely appeal.

Decisions both prior and subsequent to the effective date of Rule 1410 have held that similar rules of procedure, containing the same ‘mandatory’ language, should not be strictly enforced. “Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives[.]” Commonwealth v. Laskaris, 385 Pa.Super. 339, 348, 561 A.2d 16, 20 (1989) (citing Feingold v. SEPTA, 512 Pa. 567, 572, 517 A.2d 1270, 1272 (1986)).

In Commonwealth v. Bassion, 390 Pa.Super. 564, 569, 568 A.2d 1316, 1318 (1990), the Court reasoned that incorrect information to an accused by the District Justice or his staff could constitute a breakdown in the court’s operation that would warrant the allowance of an otherwise untimely appeal. Accord Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 448, 454 A.2d 618, 620 (1982); West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975).

In Commonwealth v. Magnum, 439 Pa.Super. 616, 654 A.2d 1146 (1995), the Commonwealth filed a motion to reconsider sentence which the trial court refused to hear because it was, in the trial court’s opinion, untimely. Although it appeared from notations on the motion that the Commonwealth filed the motion on January 24, 1994, the last day of the ten-day period in which such a motion could be timely filed, the clerk of courts did not “fully accept” the motion because it did not include the trial judge’s signature. Because the clerk of courts noted on the motion that it was received January 25, 1994, the trial court refused to consider the merits of the motion. This Court stated that “[t]he fact that the clerk of courts would not fully accept the motion without the judge’s signature, as attested to by the second stamp, is a procedural rule that only serves to place an additional burden on a party seeking to file a post-trial motion with the court.” Id. at 622, 654 A.2d at 1149. The Court held that the Commonwealth’s motion was timely filed.

The Court’s decision in Magnum is distinguishable from the decision in Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994), where the Commonwealth’s attempt to correct an inconsistency between the oral and written sentence was deemed waived for failure to challenge the sentence for more than two years and five months. In the absence of an excusing condition, “the power of the sentencing court to correct ‘clerical errors’ regarding a sentence is bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S.A. § 5505, and on the part of the aggrieved party, see Pa.R.Crim.P. 1410.” Id. at 119, 639 A.2d at 1239 (citations omitted).

Instances where the failure to file a timely appeal arises from a breakdown in the court system are distinguishable from cases where the failure to timely file an appeal is based on the fault of an attorney. In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Supreme Court set forth an exception for the allowance of an appeal nunc pro tunc where the attorney failed to perfect an appeal due to the illness of his secretary. This non-negligent happenstance, in the specific circumstances of that case, excused the untimely appeal. The Court reasoned as follows:

Appellant argues that we should equate the failure to file a timely appeal in this case as “in fact a negligent act of a court official.” Appellant also argues that “mere inadvertence” should not prevent an appellant from access to the appellate process. It is true that in our system of law an attorney, in a sense, serves both as an advocate for his client and as an officer of the court. It has recently been recognized by statutory law that an attorney is a public officer____ We are unable to conclude, however, that the office of attorney is to be equated for all purposes with the term “court officer.” We cannot overlook the fact, however, that an attorney at law, chosen by a client from a limited group of persons legally entitled to represent the client, is an integral and necessary part of our system of justice. To view a citizen’s attorney as a completely non-public officer would be ignoring the reality that our system of justice could not function properly and efficiently without the traditional view that an attorney not only represents a client, but is in a sense an officer of the court. Therefore, at least in those circumstances involving the non-negligent failure to file an appeal, members of the public should not lose their day in court.

Bass, supra at 259-60, 401 A.2d at 1135.

In the instant case, the failure to file a timely appeal involved a breakdown in the court system, that is, lack of compliance with Pa.R.Crim.P. 1410. The text of Rule 1410 and the comments thereto leave no doubt that a timely written order, either by the trial court or by the clerk of courts, is intended to protect the defendant’s right to a timely appeal. The judgment becomes final for appeal purposes either on the date when the court disposes of the motion or when the motion is denied by operation of law. Appellant’s failure to comply with Rule 1410 was caused by a breakdown in the processes of the court, that is, the clerk of courts’ failure to notify him that his motion had been denied by operation of law. Appellant filed his appeal on October 11, 1994, within 30 days of the filing of the trial court’s order denying his post-sentence motion. We hold that under the circumstances of the present case, the appeal is timely filed and may be considered by us. Pa.R.A.P. 105(b); Magnum, supra, at 439 Pa.Super. 616, 654 A.2d 1146; Bassion, supra, at 390 Pa.Super. 564, 568 A.2d 1316; Moring, supra, at 342 Pa.Super. 414, 493 A.2d 89.

Appellant raises one issue for our consideration, that is, whether the trial court erred in failing to dismiss the charges pursuant to Pa.R.Crim.P. 1100 where more than 365 non-excludable days elapsed from the date of the filing of the complaint and where all the charges stemming from a single incident should have been filed in a single complaint pursuant to Pa.R.Crim.P. 131(b). In considering a Rule 1100 claim, the test to be applied is whether the Commonwealth’s efforts to bring a defendant to trial were reasonable and pursued with due diligence. Commonwealth v. Edwards, 528 Pa. 103, 595 A.2d 52 (1991); Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990); Commonwealth v. Nesmith, 425 Pa.Super. 291, 624 A.2d 1078 (1993). Our review is limited to determining whether the trial court abused its discretion or committed an error of law in its determination that the Commonwealth exercised due diligence in bringing the appellant to a timely trial. Nesmith, supra.

Appellant argues that the statutory period began to run with the filing of the first complaint and continued to run uninterrupted through the nolle prosequi and the filing of the second complaint. The Commonwealth contends that Rule 1100 was triggered by the filing of the second complaint. For the following reasons, we agree with the Commonwealth’s contention.

In support of his position, appellant relies on Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978). However, appellant’s reliance on Earp is misplaced. As the Honorable John Q. Stranahan stated in the well reasoned opinion of the trial court,

The Defendant erroneously relies on Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215[ ] (1978)[,] because Earpi ] is distinguishable from the case which is currently before this Court. Earp is distinct in that the challenged action arose out of a single complaint which was filed against the defendant only part of which was subsequently dismissed. The defendant in Earp remained incarcerated on the pending charges which were bound over from the original complaint. Later the defendant was re-charged with those charges which had been previously dismissed from the original complaint at the time of the preliminary hearing. The continuous confinement was the crucial factor in determining [that] the Rule 1100 period should have properly run from the date of the first complaint.

In the instant case, appellant was not incarcerated on pending criminal charges after the criminal charges at issue were originally dismissed, unlike the defendant in Earp.

We recognize that if the Commonwealth were permitted to dismiss a complaint and charge a defendant anew at will, that would result in an abuse of the spirit of Rule 1100. Commonwealth v. Simms, 509 Pa. 11, 14, 500 A.2d 801, 803 (1985). We find no such abuse in the present case, however. The first complaint in the case was properly dismissed at the district justice level.

It is clear that determinations of district justices at preliminary hearings are interlocutory and non-appealable. See Liciaga v. Court of Common Pleas, 523 Pa. 258, 566 A.2d 246 (1989); In re Riggins, 435 Pa. 321, 254 A.2d 616 (1969). In Liciaga, the Supreme Court explained that “[s]ince our law does not provide an additional avenue to explore the challenge of an alleged improper dismissal of a defendant at the preliminary hearing stage, if the Commonwealth seeks to reinstitute charges, it must refile the same charges before a different magistrate.” Liciaga, 523 Pa. at 267, 566 A.2d at 250; see also Riggins, 435 Pa. at 321, 254 A.2d at 617 (“[W]hen the Commonwealth believes that a defendant has been improperly discharged by a committing magistrate its remedy is to have the defendant re-arrested and taken before another magistrate.”).

Commonwealth v. Shoop, 420 Pa.Super. 606, 609, 617 A.2d 351, 353 (1992). See also Commonwealth v. Jones, 429 Pa.Super. 601, 633 A.2d 185 (1993). After the first complaint was properly dismissed, the Commonwealth filed a second complaint within the statute of limitations period.

[W]hen an initial complaint has been withdrawn or otherwise dismissed, the 180 day period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100.

Simms, 509 Pa. at 15, 500 A.2d at 803. See also Commonwealth v. Schafer, 394 Pa.Super. 493, 576 A.2d 392 (1990).

In the case sub judice, the first complaint was properly dismissed by a magisterial authority, and there was no evidence that the prosecution attempted to evade the mandate of Rule 1100. We find that both prongs of Simms have been satisfied. Therefore, the relevant period began to run anew with the filing of the second complaint. We find no abuse of discretion by the trial court in denying appellant’s motion to dismiss pursuant to Rule 1100. Nesmith, supra, at 425 Pa.Super. 291, 624 A.2d 1078; Shoop, supra, at 606, 617 A.2d 351.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3921(a).

      . 18 Pa.C.S. § 3304(a).

      . 18 Pa.C.S. § 903(a)(1).

      . 18 Pa.C.S. § 3925(a).

      . 42 Pa.C.S. § 5552(b) provides a five (5) year statute of limitations for offenses relating to 18 Pa.C.S. § 3921.

      . See Commonwealth v. Revtai, 516 Pa. 53, 64, 532 A.2d 1, 6 (1987) (holding that although Pa.R.Crim.P. 130(d) contained the word "shall,” which was usually given mandatory effect, where complaints were filed beyond the five-day limitation of the rule, charges should not be dropped in the absence of prejudice to the defendant).

      . We quote Bass as illustrative of the importance of the fact that it is the role of the attorney as an officer of the court that is significant for purposes of excusing delay. It should be noted, however, that the scope of the holding in Bass is unclear, In re Interest of C.K., 369 Pa.Super. 445, 535 A.2d 634 (1987), and our Court has applied Bass restrictively, see Moring v. Dunne, supra.