author: ROWLEY, Judge:

text:
    561 A.2d 1257
    COMMONWEALTH of Pennsylvania, Appellant, v. Cheryl Benita CHAMBERS. COMMONWEALTH of Pennsylvania, Appellant, v. Robert W. CHAMBERS, Jr. COMMONWEALTH of Pennsylvania, Appellant, v. Rebecca KIRKLAND.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed July 14, 1989.
    Petition for Allowance of Appeal Granted Nov. 2, 1989.

      Robert L. Eberhardt, Deputy District Attorney, and Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Michael D. Sayles, Pittsburgh, for appellee in No. 397.
    Byrd R. Brown, Pittsburgh, for appellee in No. 398.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

These are consolidated appeals by the Commonwealth from orders entered in each of the three above-captioned drug-related criminal cases suppressing statements of appellee Robert Chambers and contraband seized during a search of the residence of appellees, Cheryl and Robert Chambers. After thoroughly reviewing the record evidence of appellees and the uncontradicted evidence of the Commonwealth, we conclude that the evidence supports the trial court’s factual findings, and that the trial court properly suppressed the evidence as a matter of law. See Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988).

The Commonwealth argues that: 1) there is no evidence to support the trial court’s factual finding that the police opened the door to the Chambers house simultaneous with the announcement of their identity and purpose; 2) consequently there is no support for the trial court’s legal conclusion that Pa.R.Crim.P. 2007 (the knock and announce rule) was violated; and 8) even if Rule 2007 was technically violated, the violation did not amount to a constitutional violation warranting suppression of the evidence.

The Commonwealth has the burden at a suppression hearing of proving by a preponderance of the evidence that the search or seizure of the evidence was legitimate and that the evidence therefore is admissible. Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982). In the present case, the only evidence relating to the propriety of the execution of the search warrant of the Chambers’ home is the following: one plain-clothes detective (Detective Frank) and one uniformed police officer (Officer Bruce), with their guns drawn, knocked on the front door of the Chambers home. According to the testimony of Detective Frank, the following then transpired:

And when Mr. Chambers opened the door, I said, “Police officers. We have a search warrant for the premises.” With that — and he had the door partially opened. And I pushed the door, pushed him back, and I said, “Get up against the wall and don’t [sic] move.” For safety of the officers.

Suppression transcript, p. 58. Very shortly thereafter, two other plain-clothes detectives who had been at the side of the house, also came through the front door. At some later time a second, uniformed police officer, who had been standing guard at the back door, also entered the house. The only reason the guns were drawn when Detective Frank and Officer Bruce entered the house was that “When we go into any house to execute a search warrant we don’t know what we are going to encounter on the other side of the door.” Suppression Transcript, p. 58.

Based on the fact that the only evidence produced by the Commonwealth to establish the timing of the entry into the house, was the phrase “with that,” and considering that it was the Commonwealth’s burden to establish the propriety of the execution of the warrant, we find that the record supports the trial court’s conclusion that the door was pushed open simultaneous with the announcement by Detective Frank of his identity and purpose. There is no evidence that any period of time transpired between the statement of identity and purpose and the pushing open of the door. More importantly, the Commonwealth failed to present any evidence to establish that appellee Robert Chambers had any opportunity to fully open the door to admit the police between the time that the identity and purpose of the police was announced, and the time when he was pushed at gun point against the wall behind him as the police pushed the door open. Thus there is ample evidence to support the trial court’s conclusion that the requirement in Rule 2007, that police wait a “reasonable period of time” after announcing their identity and purpose before forcefully entering a premises to execute a warrant in the absence of exigent circumstances, was violated.

We are also unpersuaded by the Commonwealth’s argument that even if there was a violation of Rule 2007, suppression of the evidence was unnecessary based upon Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987), Commonwealth v. McDonnell, 512 Pa. 172, 516 A.2d 329 (1986), and Commonwealth v. Balliet, 374 Pa.Super. 235, 542 A.2d 1000 (1988). Morgan, McDonnell, and Balliet are distinguishable on their facts.

In Morgan and McDonnell, the Supreme Court found that consent to the entry was given. In the present case, not only was consent not given by Robert Chambers, but there is no evidence that he had any opportunity to give his consent and voluntarily relinquish the premises, which is one of the fundamental purposes for the “knock and announce” rule. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). Moreover, in McDonnell, the Supreme Court found that not only was consent to the entry given, but no force was used in the entry. In the present case, it cannot be denied that force was used when Detective Frank “pushed the door” and “pushed [Robert Chambers] back.” (Emphasis added.)

Balliet is also distinguishable from the present case because although in Balliet force was undeniably used when the locked door was kicked open, at least five minutes transpired between the initial knock on the door and announcement of the identity and purpose of those about to execute the search warrant. Additionally, in Balliet, the police attempted to make a decision as to what was appropriate under the unique facts of the particular case when no one responded to their knock and announcement of their purpose. In the present case, on the other hand, there was no evidence of any circumstances to warrant the forceful entry, and there was no evidence that the execution of the warrant was tailored to suit the particular circumstances in this case. On the contrary, Detective Frank testified that at least to the extent of the drawn guns, the method of entry used in this case to execute the search warrant was the procedure used in the execution of all search warrants.

The Commonwealth also argues that even if there was a violation of Rule 2007, suppression of the evidence is not automatically warranted. While exclusion of evidence seized in violation of the knock and announce rule embodied in Rule 2007 is not always an appropriate remedy, exclusion of evidence seized in violation of the Rule may be appropriate where the violation “implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant.” Commonwealth v. Mason, 507 Pa. 396, 406-407, 490 A.2d 421, 426 (1985); Commonwealth v. Morgan, 517 Pa. 93, 96, n. 2, 534 A.2d 1054, 1056, n. 2. The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures, and this applies to the execution of the warrant. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). The unreasonableness of the execution of a warrant must be determined on a case-by-case basis. Id, Although the trial court did not address the question of whether there was a constitutional violation of the knock and announce rule, we can affirm the trial court for any reason, Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989). Our review of the record reveals that there was a federal constitutional violation of the execution of the search warrant and that suppression of the evidence was not inappropriate.

No evidence introduced at the suppression hearing supports the reasonableness of the execution of the search warrant in this case. There is no evidence that anyone in the house was trying to destroy evidence, or that anyone in the house intended to or had the ability to physically resist the police. Thus there is no suggestion that there were any exigent circumstances warranting the forceful entry. Moreover, the only evidence of record indicating any actual show of authority which would have been perceptible by Robert Chambers at the time that Detective Frank knocked on the door and announced his purpose and identity and which would have suggested to a reasonable person that he should relinquish his home to be searched was the police uniform of Officer Bruce. However, Detective Frank, who actually knocked on the door and talked to Robert Chambers, was dressed in plain clothes and was wielding a gun. There is no evidence that the search warrant was shown to Robert Chambers or that Detective Frank exhibited any police badge. In consideration of all these facts, as well as the fact that Mr. Chambers was not given any opportunity to voluntarily relinquish the property even if he had wanted to, we cannot conclude that there was any reason articulated on the record at the suppression hearing to warrant the forced entry.

Furthermore, there is no evidence to support the Commonwealth’s factual assertion that Robert Chambers’ expectation of privacy was substantially diminished when he opened the door upon hearing Detective Frank’s knock. Although Robert Chambers opened the door, Detective Frank testified that it was only “partially” open. The Commonwealth failed to present any other evidence to establish that the door was sufficiently open so that the police could see anything inside the house or to demonstrate that any privacy was in fact relinquished when the door was opened. Based on the meager record established by the Commonwealth, we cannot say that Mr. Chambers opened the door sufficiently wide so as to diminish to any appreciable extent his expectation of privacy.

Because there was no demonstrated reason to use any force to execute the search warrant, because there was no evidence indicating that Mr. Chambers consented to the search, or had an opportunity to voluntarily relinquish the premises to the police, and because of the minimal evidence that Mr. Chambers, in the brief time between the knocking on the door and his being pushed against the wall, had any reason to perceive what was going on as an exercise of lawful authority, we hold that the execution of the search warrant was not reasonable, and was unconstitutional. McDonnell, supra (“The Rule’s primary purpose is to prevent resistance to lawful authority based on the occupant’s efforts to protect his privacy expectation against unauthorized entry of persons unknown to him. It gives the individual a chance to surrender the premises peacefully in the face of lawful authority.”). Thus, the execution of the search warrant in this case not only technically violated the knock and announce rule embodied in Pa.R.Crim.P. 2007, but also “implicated fundamental, constitutional concerns.”

Balancing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), we conclude that the trial court did not err in suppressing the evidence in this case. Even if the Supreme Court of Pennsylvania had adopted the “good faith” exception to the exclusionary rule set forth in Leon, supra, which it has not done, Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), we note that there is nothing in the record to indicate that the police acted in good faith in the manner in which they executed the search warrant in this particular case. Moreover, the extent of the police violation in this case is not minor. Greenwood, supra, at 108 S.Ct. 1631.

Orders affirmed.

      . We concur in the trial court’s conclusion that the display of weapons ° alone did not constitute a Rule 2007 violation under Commonwealth v. Duncan, 257 Pa.Super. 277, 390 A.2d 820 (1978).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    561 A.2d 1261
    Raminik HAITHI & Shushila Hathi, Individually and in Their Own Right, and as Parents and Natural Guardians of Shamil Hathi, a Minor, Appellants, v. KREWSTOWN PARK APARTMENTS and Lipton & Fogel, Appellees.
    Superior Court of Pennsylvania.
    Argued April 25, 1989.
    Filed July 19, 1989.
    Brian P. Meehan, Philadelphia, for appellants.
    Earl T. Britt, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and MELINSON, JJ.
   OLSZEWSKI, Judge:

Appellants, Raminik Hathi and Shushila Hathi, appeal from an order of the trial court granting appellees' motion for partial summary judgment. Appellants urge us to interpret 42 Pa.C.S.A. § 5533(b), which provides an infancy exception to time for commencing an action, as including parents’ claims for medical expenses and loss of minor’s services due to personal injury to a minor child. For reasons that follow, we affirm.

On October 29, 1986, appellants commenced suit to recover damages in their own right and on behalf of their minor son, Shamil, for personal injuries sustained by him on appellees’ property, the Krewstown Park Apartments. Appellants’ complaint averred that on September 6, 1984, “while minor was playing behind Building H ... he was caused to suffer serious injuries when his bicycle hit a ditch and/or gutter and the handlebars of his bicycle which caused internal damage to his pancreas.” Complaint at 2. Appellants’ complaint requested recovery on behalf of Shamil for pain and suffering and present and future medical expenses (Count I) and in their own right for expenditures and lost income (Count II).

In their answer and new matter and a motion for partial summary judgment, appellees asserted that appellants’ claim in their own right was barred by the statute of limitations. 42 Pa.C.S.A. § 5524. On April 21, 1988, the trial court granted appellees’ motion for partial summary judgment on Count II of appellants’ complaint. This timely appeal followed.

Our standard of review on the granting of a motion for summary judgment is well settled.

Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The relief should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact that the moving party is entitled to judgment as a matter of law. Fa.R.C.P., Rule 1085, 42 Pa.G.S.A.; Hower v. Whitmak Associates, 871 Pa.Super. 443, 588 A.2d 524 (1988). On review, the record must be examined in a light most favorable to the non-moving party, and in doing so all well-pleaded facts in the non-moving party’s pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vincente, 815 Pa.Super. 135, 461 A.2d 838 (1983).

Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 302, 549 A.2d 1304, 1305 (1988).

With these principles in mind, we address appellants’ contention that summary judgment was improper. Appellants urge that their claim in their own right “attaches to the minor’s claim under 42 Pa.G.S.A. § 5583(b), and should accordingly be preserved as it arises out of the same incident and is joined with their claim on behalf of the minor child.” Appellants’ brief at 6. We begin our discussion by delineating 42 Pa,C.S.A. § 5588:

§ 5533. Infancy, insanity or imprisonment
(a) General rule. — Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
(b) Infancy. — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term “minor” shall mean any individual who has not yet attained the age of 18.

While no appellate court in this Commonwealth has specifically addressed appellants’ contention, we find a Federal District Court decision discussing 42 Pa.C.S.A. § 5533 to be instructive:

[Parents] contend that their tort claim is derivative of [son’s] claim. If he is entitled to sue, then they are.
Olivieri v. Adams, 280 F.Supp. 428 (E.D.Pa.1968). See also Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938); In re Mikasinovich, 110 Pa.Super. 252, 168 A. 506 (1933); Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Parents may pursue their claims, arising from tortious injury of their child, even where the child’s claim is barred. Hunt v. Yeatman, 264 F.Supp. 490 (E.D.Pa.1967). If both the parent and the child have claims against a defendant for injury to the child, the parents may prevail while the child loses. Gould v. Nickel, 268 Pa.Super. 183, 407 A.2d 891 (1979). The claims of [parents] are not derivative of their son’s claim. Their claim may be barred while his is still assertable.
[Parents’] tort claim is barred by the two year statute of limitations. 42 Pa.C.S.[A]. § 5533 provides: “except as otherwise provided by [statute], infancy, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.” [Parents] have not averred that they were affected by the conditions of infancy, insanity or imprisonment. As amended, section 5533(b) prevents the years of minority from being included in the statute of limitations’ running time. [Parents] were over the age of 18 at all times relevant; they received no benefit from the amendment of § 5533.

Apicella v. Valley Forge Military Academy and Junior College, 630 P.Supp. 20, 23-24 (E.D.Pa.1985) (emphasis in original).

We find the facts of Apicella to be analogous to the case at bar and the rationale of Apicella to be compelling. Appellants’ claim is not derivative of Shamil’s claim and appellants have not alleged that they were affected by the conditions of infancy, insanity or imprisonment. Appellants, therefore, do not receive the benefit of § 5533(b). Accordingly, the trial court properly determined that their claim was barred by the two-year statute of limitations.

Order affirmed.

      . 42 Pa.C.S.A. § 5524 provides in pertinent part:
      Two year limitation
      The following actions and proceedings must be commenced within two years: ...
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.


author: HESTER, Judge: KELLY, Judge,

text:
    561 A.2d 1263
    COMMONWEALTH of Pennsylvania v. John C. SCHMUCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 30, 1989.
    Filed July 17, 1989.

      Robert E. Dalton, Jr., Public Defender, Blossburg, for appellant.
    James E. Carlson, District Attorney, Wellsboro, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   HESTER, Judge:

This appeal is from an order entered September 20, 1988, which denied the June 20, 1988 PCHA petition filed by appellant, John C. Schmuck. We affirm.

On August 14, 1985, appellant supplied a fifteen-year-old boy with beer, took him to a hotel, and performed fellatio on him. Appellant was arrested on August 22, 1985, and charged with involuntary deviate sexual intercourse, corruption of minors, indecent assault, and furnishing malt or brewed beverages to a minor. Prior to the preliminary hearing, he conferred with his attorney. In adjudicating appellant’s direct appeal, we found that during that conference, his attorney explained the nature of the charges and sentencing possibilities, including the mandatory minimum sentence of five years for involuntary deviate sexual intercourse under 42 Pa.C.S. § 9718(a). Commonwealth v. Schmuck, 369 Pa.Super. 652, 531 A.2d 528 (1987).

Appellant decided to plead not guilty, demanding a jury trial. He was found guilty of all charges. Following the trial, he retained new counsel and filed post-trial motions alleging trial counsel’s ineffectiveness. Following denial of those motions on September 2, 1986, appellant received the mandatory five-to-ten-year sentence for involuntary deviate sexual intercourse and a concurrent one-year sentence for corrupting the morals of a minor. We affirmed on direct appeal. Commonwealth v. Schmuck, id.

In that appeal, appellant alleged that trial counsel rendered ineffective assistance, among other things, by failing to advise him of the five-year mandatory minimum sentence for involuntary deviate sexual intercourse. We determined that the claim had no merit, ruling that the attorney had informed appellant of the mandatory sentence under 42 Pa.C.S. § 9718.

In this appeal, appellant’s sole contention is that all prior counsel were ineffective for failing to raise the applicability of Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), petition for allowance of appeal denied, 515 Pa. 620, 531 A.2d 428 (1987), to this action.

Appellant contends that he was denied effective assistance of counsel when they failed to raise, in post-verdict motions and on appeal, the Commonwealth’s lack of notice of its intent to proceed under 42 Pa.C.S.A. § 9718 (mandatory five-year sentence) in the event that Schmuck was convicted. Appellant asserts that failure of the Commonwealth to provide him, prior to trial, with a written notice of their intention to seek the mandatory five-year sentence deprived him of his right to intelligently weigh the alternatives of going to trial versus negotiating a plea. He argues that counsel was ineffective for failing to object to the lack of such notice.

The supreme court of this Commonwealth has recently reviewed the well-established standard of review with respect to claims of ineffectiveness of counsel. In Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989), the supreme court stated:

Approaching our task of determining whether counsel’s assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant’s claim, we examine whether the claimant’s allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client’s interests. Id.; Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. den’d, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984).
In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective representation of counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy still to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra.

Id., 520 Pa. at 334, 554 A.2d at 24.

Appellant argues that Commonwealth v. Leonhart, supra, supports his allegation that the Commonwealth had a duty to inform him, prior to trial, that it intended to seek the imposition of the mandatory minimum sentence in the event he was convicted. In Leonhart, the defendant pled guilty to involuntary deviate sexual intercourse with a person less than sixteen years of age and corruption of minors. He was not given notice of the applicability of 42 Pa.C.S. § 9718, which imposed a mandatory minimum sentence of five years, until sentencing. The defendant in Leonhart sought to withdraw his guilty plea, due to the fact that the Commonwealth’s failure to notify him of the applicability of section 9718 prior to submission of his plea resulted in the plea being involuntary and not knowingly tendered. This court held that section 9718 requires that such notice be given prior to the entry of a guilty plea. As a result, the defendant was permitted to withdraw his plea and proceed to trial by jury.

As we noted in Leonhart, section 9718 sets forth no provision concerning the notice required to be given defendants. We there further observed that other statutes in the mandatory sentencing scheme — offenses committed with firearms, 42 Pa.C.S.A. § 9712, offenses committed on public transportation, 42 Pa.C.S.A. § 9713, and second and subsequent offenses, 42 Pa.C.S.A. § 9714 — which carry the same five year minimum sentence as does Section 9718, have been interpreted so as to require that notice be given to the defendant of their application following conviction and before sentencing. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985); Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985). Statutes in a scheme covering the same subject matter should be construed, whenever possible, as one harmonious component of the entire statutory structure. Commonwealth v. Leonhart, supra; Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983).

As we further stated in Commonwealth v. Leonhart, supra, 358 Pa.Super. at 502, 517 A.2d at 1347 (emphasis added):

As noted earlier, the mandatory provision is triggered when the trial court has determined at sentencing that its conditions have been met. Only then does it operate as a sentencing factor. Accordingly, due process concerns require that the prosecutor give notice of its intention to proceed prior to sentencing under the relevant mandatory sentencing statute. If the prosecution believes that it is unable to establish by a preponderance the elements of the applicable mandatory provision, it need not give notice.

The mandatory minimum sentence is not included in the definition of the offense and is not an element thereof. It does not impose a penalty more severe than that which could be imposed if the statute did not apply. It simply removes the sentencing court’s discretion to impose a lesser sentence.

The applicability of the sentencing provisions set forth in 42 Pa.C.S.A. § 9718(a) is not within the sole discretion of the Commonwealth as prosecutor. Rather, the commission of one of the crimes listed in that section, upon a victim under the age of sixteen, must be determined by the trial court to have been proven before the mandatory sentencing provisions come into effect.

Our holding in Leonhart has no application to the within fact situation. Appellant did not plead guilty; he proceeded to trial by jury where there existed the possibility of acquittal. He does not contend that he did not receive a fair trial. His allegation is completely lacking in merit. We therefore hold that the Commonwealth was not required to notify appellant prior to trial that it would proceed under 42 Pa.C.S.A. § 9718(a) in the event he was convicted.

Counsel was not ineffective for failing to raise, in post-trial motions and in the first appeal, the lack of notice by the Commonwealth prior to trial of its intention to request the imposition of the minimum sentence set forth in 42 Pa.C. S.A. § 9718(a).

We affirm.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

I concur in the result. I write separately, however, because I disagree with the analysis set forth in the majority opinion pertaining to the proper construction of 42 Pa.C. S.A. § 9712.

I agree with the majority that Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986) is inapposite. Leonhart stands for the rather limited proposition that, just as a person pleading guilty or nolo contendere must be informed of the maximum penalties which may result from a plea, a person entering a guilty or nolo contendere plea must also be informed of any mandatory minimum penalties which may apply. The reasoning in Leonhart does not extend beyond the narrow context of uninformed pleas.

I cannot agree with the majority, however, that the provisions of 42 Pa.C.S.A. § 9718 must be read, like those of 42 Pa.C.S.A. § 9712, to require the prosecution to provide presentence notice of intent to seek application of the mandatory minimum sentence provision. The statutes providing for mandatory minimum sentences relating to certain crimes involving the use of a firearm, committed on or near public transportation, constituting a second or subsequent offense, or following a prior homicide conviction, each contain specific language which requires notice of the prosecution’s intent to pursue the mandatory minimum sentence prior to sentencing. See 42 Pa.C.S.A. § 9712(b); 42 Pa.C. S.A. § 9713(b); 42 Pa.C.S.A. § 9714(b); 42 Pa.C.S.A. § 9715(b). Our Supreme Court has construed this specific language to indicate the legislature’s intent to vest discretion in the prosecution as to whether or not to pursue the mandatory penalty. See Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987).

Though enacted after the statutes discussed above, neither § 9717, which provides mandatory minimum penalties for certain crimes against the elderly, nor § 9718 which provides mandatory minimum penalties for certain crimes against infant persons, contains the proof at sentencing/notice provision contained in the earlier mandatory minimum penalty statutes. Generally, a change in statutory language is deemed to evince a change in legislative intent; it has been held previously by this Court that when specific language is used in one section of a statute and excluded in another, it should not be implied where excluded. See Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985). Hence, I find that because there is no proof at sentencing/notice provision in 42 Pa.C.S.A. § 9718, its mandatory minimum sentence provision must be deemed automatically applicable whenever the requisite triggering facts appear of record, with or without prosecutorial notice prior to sentencing, and whether or not the prosecution desires to pursue the penalty. Cf. Commonwealth v. Ferguson, 381 Pa.Super. 23, 49, 552 A.2d 1075, 1088 (1988) (the mandatory restitution provision of 62 Pa.C.S.A. § 481(c) contains no notice provision, and therefore must by its unequivocal terms be deemed automatically applicable when the triggering facts appear of record.)

It may be that the absence of the proof at sentencing/notice provision from § 9718 (or § 9717) merely reflects the differences in the nature of the facts which trigger the mandatory minimum penalty provisions. While the fact of the visible possession of a firearm during the commission of one of the predicate offenses under § 9712 is often genuinely in dispute at sentencing, neither a victim’s age, nor the crime for which the defendant is convicted are ordinarily subject to such dispute in cases involving § 9718 (or § 9717). Thus, while the notice requirement of § 9712 serves the useful purpose of notifying defense counsel of the need to prepare for legitimately contestable factual issues likely to arise at sentencing regarding the application of § 9712, such a requirement in the application of § 9718 (or § 9717) would serve no such purpose.

Instead, a notice requirement for § 9718 (or § 9717) would merely provide a technical impediment to the effectuation of the legislature’s clearly expressed intent that the mandatory minimum penalty be automatically applicable, by providing a vehicle for intentional and/or inadvertent waiver of the mandatory sentence provision by the prosecution via the simple expedient of failing to give notice which the legislature did not see fit to require in the first place. Just as the proof at sentencing/notice provision was construed in Pittman to vest discretion in the prosecutor to seek or not seek application of § 9712, I construe the conspicuous absence of the proof at sentencing/notice provision to indicate legislative intent to restrict prosecutorial discretion under both § 9717 and § 9718. Apparently, the legislature has decided that with respect to these provisions, prosecutorial discretion as well as judicial discretion ought to be limited.

The legislature, of course, has the same authority to limit prosecutorial discretion regarding the punishment to be imposed for criminal conduct as it does to limit judicial discretion. Cf. Commonwealth v. Carr, 375 Pa.Super. 168, 543 A.2d 1232, 1235 (1988). Prosecutorial discretion, however, may not be as effectively restrictable as that of the judiciary. Nonetheless, when, as under § 9718, mandatory penalties are triggered by specific facts, as opposed to specific facts and express notice from the prosecutor pursuant to statute, the mandatory minimum penalties must apply when the triggering facts set forth in § 9718 (or § 9717) appear of record, regardless of prosecutorial intent or desires to the contrary.

To the extent that in rare cases a material and unanticipated question as to the existence of one of the predicate facts which trigger application of § 9718, (or § 9717) may arise, I am of the opinion that an appropriate continuance of the sentencing hearing would more than adequately fulfill the dictates of due process. Due process does not require, and the legislature has expressly declined to require post-verdict, pre-sentencing notice of an intent to pursue the mandatory sentence requirement of § 9718. Consequently, I would not engraft upon the statute such a procedural stumbling block to uniform enforcement of the legitimate mandate of the legislature that mandatory minimum penalties apply in such cases.

Nonetheless, the fact remains that, required or not, presentencing notice was in fact given by the prosecution in this case. As a result, the majority find that appellant’s rights were fully protected, and consequently affirm judgment of sentence. Travelling a different path, I reach the same conclusion.

Hence, I concur in the result.

      . As a practical matter, of course, some discretion remains in the prosecutor to avoid application of a mandatory minimum sentence provision, even under the construction of the statute suggested above, by altering the charges presented against a suspect, or by omitting proof of a critical triggering fact. See Alshuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for “Fixed" and “Presumptive” Sentencing, 126 U.Pa.L.Rev. 550, 550-77 (1978) (criticizing the prosecutor’s practical powers in this regard); cf. Stein-berg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 Crime and Delinquency 568, 568-92 (1984) (tracing the historical genesis, development, and limits of prosecutorial discretion). This discretion is ostensibly restricted by the victim’s right to pursue private prosecution under Pa.R.Crim.P. 133, and the Attorney General’s authority to seek supersession under 71 P.S. § 732-205. These powers, however, lay dormant though they remain at least theoretically viable. See 1 Pa.C.S.A. §§ 1972, 1973. Such discretion is more effectively limited, though, by the district attorney's duty not to suppress facts, favorable or unfavorable to the accused, so as to present a false picture of known and provable events to a court. See generally Commonwealth v. Bolden, 517 Pa. 10, 16, 534 A.2d 456, 459 (1987) ("although defense counsel is not under the same constraint to disclose information unfavorable to his client, ... he or she is nevertheless under the same restraint not to deliberately distort facts to create defenses not legitimately raised under the facts of the case"). Finally, there is, of course, the restraining effect of the potential for such prosecutorial evasions of legislatively enacted mandatory minimum penalties to be negatively perceived by the public, which may then seek prospective redress at the ballot box.


text:
    561 A.2d 1268
    In re Estate of Robert P. FIKE, Deceased. Appeal of Evelyn R. FIKE and Pittsburgh National Bank, Executors of the Estate of Louis S. Fike, Deceased, and Appeal of GALLATIN NATIONAL BANK, Administrator D.B.N., C.T.A. of the Estate of Robert P. Fike, Deceased.
    Superior Court of Pennsylvania.
    Submitted April 3, 1989.
    Filed July 17, 1989.

      Henry R. Beeson, Uniontown, for Evelyn R. Fike and Pittsburgh Nat. Bank, appellant.
    John R. Hoye, Jr., Uniontown, for Gallatin Nat. Bank, appellant. Melvin B. Bassi, Washington, for Purco Coal, Participating Party.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a final decree entered by the Court of Common Pleas of Fayette County which served to interpret certain provisions of a coal mining lease by and between Purco Coal Company (“Purco”) as lessee and Louis S. Fike, Executor of the Estate of Robert P. Fike, deceased (successor in interest being Gallatin National Bank, Administrator d.b.n.c.ta. of the Estate of Robert P. Fike, deceased), and Louis S. Fike, individually (now deceased, his successors in interest being Evelyn R. Fike and Pittsburgh National Bank, Executors of the Estate of Louis S. Fike, deceased), as lessors (“lessors”).

On December 8, 1982, Purco and lessors entered into a coal mining lease. Following, the Orphan’s Court of Fayette County approved the execution of the lease. Paragraph 3 of the lease required Purco to promptly apply to the Pennsylvania Department of Environmental Resources for certain mining and drainage permits. Purco complied, and, in accordance with paragraph 4 of the Lease, paid $50,000 as an advance royalty. In pertinent part, paragraph 4 provides:

As an advance royalty, Purco shall pay Lessor the sum of $50,000 on the effective date of this agreement, which sum shall be held in escrow by Lessor’s attorneys ... [T]he advance royalty and any accrued interest shall be paid to Lessor on the permit approval date; and the advance royalty (but not the interest) shall be applied to the first tonnage royalties due Lessor from Purco for coal mined and removed during the lease year beginning on the permit approval date. If the advance royalty exceeds the tonnage royalty during that year, the excess shall be retained by Lessor.

On April 1, 1985, Purco obtained its mining and drainage permits, but, due to other procedural mandates, was unable to actually mine and remove coal until January 8, 1986, when compliance with said mandates was achieved. Thereafter, on January 7, 1987, Purco made a second escrow deposit of $50,000, which it again characterized as advance royalty. This deposit, although not actually required, was made by Purco since it had not actually begun to mine and remove coal. The lessors characterized the payment as a minimum tonnage royalty which is addressed in paragraph 5 of the lease. In pertinent part, paragraph 5 provides:

For each ton of 2,000 pounds of coal mined and removed from the premises, Purco shall pay Lessor a tonnage royalty of $2.75. Payment for all coal mined and removed during any calendar month shall be made not later than the 15th day of the following month. If the tonnage royalties beginning on an anniversary of the permit approval date or during any renewal year is less than $50,000, Purco shall pay Lessor the amount of the deficiency not later than 15 days after the end of such lease year or renewal year.

Due to this discrepancy, Purco filed a petition for declaratory judgment asking the trial court to interpret the relevant provisions of the lease. Specifically, Purco asked the court to determine the definition of the “permit approval date,” and to determine whether the advance payments made by Purco constituted minimum royalties or advance payments which should be applied at the end of the lease term against tonnage actually mined by Purco.

Following an evidentiary hearing, the trial court determined that the permit approval date was April 1, 1985, as was argued by lessors, and that the advance payments made by Purco were recoupable against later tonnage royalties, as was argued by Purco. In response, lessors filed exceptions to the trial court's latter determination. No exceptions were filed to contest the permit approval date.

Thereafter, pursuant to a hearing on the exceptions, the trial court entered a final decree in which its initial determinations were affirmed. In response, the lessors filed the instant appeal.

On appeal, the lessors contend that the trial court erred in holding that the advance payments made by Purco were recoupable against later tonnage royalties. Specifically, the lessors argue that the terms of the lease unambiguously provide that the advance royalty was to be applied to the tonnage royalties for coal mined and removed during the lease year, which began on the permit approval date and ended on March 31, 1986. In furtherance, lessors argue that paragraph 4 provides that if the advance royalty is greater than the tonnage royalty during that first lease year, they may retain the excess. Accordingly, lessors contend that the advance royalty is not recoupable against tonnage royalties obtained in years subsequent to the initial lease year.

In addition, lessors direct our attention to paragraph 5, which states that if the tonnage royalties for coal mined and removed during any lease year, beginning on an anniversary date of the permit approval date or during any renewal year, is less than $50,000, Purco must pay the amount of the deficiency not later than 15 days following the end of such lease year or renewal year. As such, lessors contend that they are due such minimum royalty on the 15th day of April of each year, commencing on April 15, 1987. Lessors contend that said payment is not contingent upon the actual occurrence of mining activity.

Finally, due to the contested unambiguous nature of the contract, lessors argue that the trial court erred in introducing extrinsic evidence to aid in the interpretation of the lease. Said evidence included custom and usage in the coal mining industry.

Initially, we note that since the lessors are asking this Court to disturb a determination of the trial court, they must first demonstrate that the trial court abused its discretion or committed an error of law in making said determination. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). With this in mind, we may address the thrust of the lessors’ arguments.

A lease is a contract and is to be construed through the utilization of contract principles. Ross v. Gulf Oil Corp., 361 Pa.Super. 228, 522 A.2d 97 (1987). In construing such a lease, the intent of the parties is a primary consideration. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986). Where the terms of the lease are clear and unambiguous, the intent of the parties is to be derived from the lease itself. Id. Where the lease is ambiguous, however, evidence of custom and usage is admissible to aid in the interpretation of the language. Id.

Accordingly, this Court must initially determine whether the terms of the lease are ambiguous, thereby warranting the use of extrinsic evidence. A contract is ambiguous if reasonably intelligent persons would differ as to its meaning. Musisko v. Equitable Life Ins. Co., 344 Pa.Super. 101, 496 A.2d 28 (1985). The court, as a matter of law, determines whether the provisions of a lease are clear or ambiguous. Koval v. Liberty Mutual Insurance Co., 366 Pa.Super. 415, 531 A.2d 487 (1987). Thereafter, the resolution of conflicting extrinsic evidence offered to determine the parties’ intent is within the province of the trier of fact. Walton v. Philadelphia National Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988).

Upon review of the record, we are constrained to agree with the trial court’s determination that the terms of the lease are ambiguous. The lease clearly provides that Purco is obligated to pay the lessors $50,000 per year. The lease is ambiguous, however, as to when the payment of minimum tonnage royalties was to commence.

Specifically, the lease provides that such payments should commence when the coal is actually mined and removed. In addition, however, the lease provides that the payments must begin on the permit approval date. As such, where the permit approval date is tolled but where the lessee is unable to actually mine and remove coal due to circumstances beyond its control, a conflict arises as to when the payments for minimum tonnage royalties should commence. Clearly, this language created an ambiguity which may be alleviated through the introduction of extrinsic evidence. Accordingly, the trial court did not err in determining that the lease contained ambiguous language and in allowing the introduction of extrinsic evidence to aid in the interpretation of the ambiguity.

Thereafter, the trial court appropriately acted as fact-finder in interpreting the ambiguous provisions. A review of the record reveals that Purco offered the uncontradicted testimony of three expert witnesses. In sum, these witnesses testified that pursuant to custom and usage in the Pennsylvania coal industry, advance royalty payments are to be recouped at some point during the lifetime of the mine. Thereafter, based upon this testimony, the contents of the lease, and the fruit of well-reasoned questions asked by the trial court, a decision was rendered in favor of Purco.

Clearly, this decision was based upon the trial court’s determination that advance royalties are separate and apart from minimum tonnage royalties and that, unless the lease specifically provides otherwise, the latter is not recoverable until mining is commenced. Up until that point, advance royalties are payable, and subsequently recoverable, against minimum tonnage royalties. As such, the trial court determined that the payments made by Purco constituted advanced royalties and were recoupable against subsequent minimum tonnage payments.

In contrast, the lessors argue that pursuant to Pittsburgh National Bank v. Allison Engineering Co., 279 Pa.Super. 442, 421 A.2d 281 (1980), which held that minimum tonnage royalties constitute a penalty and, as such may not be recouped against tonnage royalties unless the lease specifically provides otherwise, the instant result is unwarranted. In Hutchison, supra, however, the Pennsylvania Supreme Court specifically addressed Pittsburgh National and, in doing so stated that its implication of a duty to mine in the face of a minimum advance royalty was improper. As such, Hutchison held that the courts should look to the terms of the lease and not automatically determine that minimum advance royalties are not recoupable against minimum tonnage royalties based upon the implied duty to mine. In addition, however, Pittsburgh National also stated that an advance royalty does not imply a right of recoupment. Nevertheless, since the lease provisions of the instant case specifically provided that the advance royalty was to be applied to the first tonnage royalties, the cases are distinguishable.

Instantly, upon review of the record, the applicable case law and the solid determinations of the trial court, we find that the trial court did not abuse its discretion in making its determinations. As such, we affirm its decision to recoup the minimum advance payments tendered by Purco against subsequent minimum tonnage payments, payable when Purco was able to actually mine and remove coal.

Accordingly, we affirm the decision of the trial court. Decree affirmed.


text:
    561 A.2d 1271
    Hope A. DeMICHELE, Administratrix of the Estate of Samuel B. DeMichele, Appellee, v. ERIE INSURANCE EXCHANGE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1989.
    Decided July 21, 1989.

      Marcia H. Haller, Erie, for appellant.
    Craig A. Markham, Erie, for appellee.
    Before OLSZEWSKI, MONTEMURO and KELLY, JJ.
   OLSZEWSKI, Judge:

Erie Insurance Exchange (“Erie”) appeals from an order entered by the Court of Common Pleas of Erie County granting appellee’s motion for summary judgment and denying Erie’s cross-motion for summary judgment.

On August 2, 1987, Samuel B. DeMichele (“decedent”) was involved in a motor vehicle collision which resulted in his death. The decedent was a passenger in an automobile driven by a third party. At the time of his death, decedent resided with his parents and owned a registered but uninsured automobile.

Subsequently, Hope A. DeMichele (“DeMichele”), administratrix of decedent’s estate, submitted her request for first-party benefits under the decedent’s father’s insurance policy which had been issued by Erie. The policy covered members of the decedent’s father’s residence. Erie denied this request, claiming that the decedent was ineligible under Section 1714 of the Financial Responsibility Law because he had no source of liability coverage.

As such, DeMichele instituted an action against Erie, seeking to recover under the terms of the insurance contract. DeMichele then filed a motion for summary judgment. Following, Erie also filed a motion for summary judgment. Arguments were heard on said motions, whereupon the Honorable Richard L. Nygaard denied Erie’s motion and granted DeMichele’s motion.

Thereafter, DeMichele filed a petition for assessment of attorney’s fees. This matter was reviewed by the Honorable James B. Dwyer, who entered an order assessing damages and awarding attorney’s fees in conformance with the order which granted DeMichele’s motion for summary judgment. Erie took exception to said order and filed the instant appeal.

On appeal, Erie contends that the trial court erred in: (1) denying its motion for summary judgment and granting DeMichele’s motion for the same pursuant to § 1714 of. the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq.; and (2) awarding attorney’s fees to DeMichele since there was a justifiable dispute between the parties and since Erie did not act unreasonably in denying first-party benefits to the decedent’s estate.

In pertinent part, § 1714 of the Pennsylvania Motor Vehicle Financial Responsibility Law provides:

An owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.

The purpose of the act is to encourage all owners of registered vehicles to contribute to the burden of insurance before they can reap the benefits. Allen v. Erie Insurance Co., 369 Pa.Super. 6, 534 A.2d 839 (1987).

Section 1702 defines financial responsibility as:

The ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident. The financial responsibility shall be in a form acceptable to the Department of Transportation.

Financial responsibility addresses one’s ability to provide compensation in motor vehicle accidents. Allen, supra. Accordingly, the issue in the instant case is whether the decedent’s failure to insure his registered automobile would preclude his estate from receiving first-party benefits where he may be covered under his father’s insurance policy. In reviewing this issue, it must be noted that this Court will not disturb the findings of the trial court absent an abuse of discretion or error of law. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987).

Admittedly, the decedent’s father’s policy covered the decedent under certain, but not all, circumstances. Specifically, the decedent was covered if he operated a vehicle listed in the declarations of the policy or if he operated a non-owned vehicle so long as the vehicle was not furnished for the insured's regular use and if the insured was using the vehicle with the owner’s permission. Since the decedent’s vehicle was not listed in the policy’s declarations and since his vehicle was furnished for his regular use, the decedent would not be covered if he operated his own vehicle.

Accordingly, the issue becomes whether the decedent, who did not have financial responsibility for his own vehicle under the terms of his father’s policy, should be considered to be eligible for first-party benefits pursuant to § 1714. In tackling this issue, DeMichele argues that since the decedent was not operating his vehicle when he suffered his fatal injuries, but was a passenger in a non-owned vehicle, he was financially responsible for purposes of § 1714. We disagree.

The statute was created to ensure that one may not receive first-party benefits unless he has the ability to provide them to another. To enforce this desired result, the statute clearly requires that the owner of a registered vehicle insure the vehicle before he may be considered eligible for first-party benefits. Mowery v. Prudential Property and Casualty Insurance Co., 369 Pa.Super. 494, 535 A.2d 658 (1988). Instantly, DeMichele admits that the decedent’s father’s policy did not serve to insure the decedent’s registered vehicle, and thereby did not provide the requisite financial responsibility. As such, the decedent’s estate was not entitled to obtain first-party benefits. Accordingly, the trial court’s decision must be reversed.

In accordance with our disposition of this issue, it follows that the trial court’s decision to award DeMichele attorney’s fees based on the determination that there was not a justifiable dispute must also be reversed. Section 1716 of the Pennsylvania Motor Vehicle Financial Responsibility Law provides that:

Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits. If reasonable proof is not supplied as to all benefits, the portion supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Overdue benefits shall bear interest at the rate of 12% per annum from the date the benefits become due. In the event the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney fee based upon actual time expended. (emphasis added).

Upon interpretation, the applicable portion of this statute dictates that where an insurer unreasonably fails to pay benefits to an insured when due, it must pay for the reasonable attorney’s fees incurred by said insured.

Instantly, the trial court found that because it decided that Erie erred in failing to pay benefits to DeMichele, Erie acted in an unreasonable manner. As such, the trial court has interpreted this statute to provide that where an insurer’s failure to pay is subsequently found to be in error, the insurer must pay the insured’s attorney’s fees. This Court respectfully disagrees with this interpretation.

Instead, we interpret the statute to provide that only where an insurer’s failure to pay constitutes an unreasonable act which is clearly contrary to the terms of the policy and to Pennsylvania law, will the insurer be responsible for paying the insured’s reasonably incurred attorney’s fees. In effect, we have interpreted this portion of the statute to act as a penalty and deterrent for bad faith behavior.

When applied to the instant case, it is clear that Erie’s failure to pay was not unreasonable since it was based upon the terms of the policy and the mandates of Pennsylvania law. As such, the trial court erred in concluding that Erie unreasonably denied coverage and in awarding attorney’s fees to DeMichele. As a result, we reverse this decision as well.

Accordingly, we reverse the order of the trial court. Jurisdiction is relinquished.

      . In essence, this statute serves to preclude the receipt of first-party benefits to any owner of a registered vehicle who has failed to obtain the requisite financial responsibility, regardless of the involvement of his or her automobile in the underlying incident. Mowery, supra. As a result, the constitutionality of the statute was challenged and upheld. Id.


author: DEL SOLE, Judge:

text:
    561 A.2d 1274
    PEOPLES BOND AND MORTGAGE COMPANY, a Pennsylvania Corporation, Appellant, v. Morton CHATKIN, Appellee (Two Cases).
    Superior Court of Pennsylvania.
    Argued June 6, 1989.
    Decided Aug. 7, 1989.
    Reargument Denied Sept. 20, 1989.

      Edward C. Leckey, Pittsburgh, for appellant.
    John M. Silvestri, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This appeal is from an Order entered in a proceeding commenced by a Petition to Compel Satisfaction of a Judgment and Assess Statutory Penalties for failure to satisfy the Judgment. Appellant, who is the original judgment creditor, contends that the trial court was incorrect in deciding that Pennsylvania should apply its own interest rate in determining whether a Pennsylvania judgment has been satisfied by a payment made in a foreign state. We affirm the trial court’s decision.

On May 14, 1974, the Appellant, Peoples Bond & Mortgage Company, entered a judgment in its favor and against the Appellee, Morton Chatkin, in the amount of $39,520.00. This judgment was revived twice, the second time on December 17, 1985, in the amount of $65,236.57 plus costs and interest. Post judgment interest in Pennsylvania is calculated at the rate of six percent (6%).

In the meantime, the Pennsylvania judgment was transferred to Arizona. On January 30, 1984, the Appellant issued a writ of execution against real estate owned by the Appellee in Arizona in the amount of $37,280.00 plus interest at ten percent (10%) from December 14, 1979 and costs incurred in Arizona. A Sheriff’s sale was held on March 10, 1986 at which the Appellant paid $91,000.00 for the Appellee’s property. Appellee subsequently redeemed his property by paying the sheriff the bid price, a redemption fee, and interest on those sums from the date of sale.

Appellee petitioned the Court of Common Pleas of Allegheny County for a Rule to Show Cause as to why the Pennsylvania judgment should not be satisfied, why Appellee was not entitled to liquidated damages, and why any sums received by Appellant in excess of the sums necessary to satisfy the Pennsylvania judgment should not be returned to Appellee. On May 24,1988, the court entered the following order:

AND NOW, to-wit, this 24 day of May, 1988, it is hereby ORDERED that in respect to the rule issued October 22, 1986 (a) the interest rate issue is adjudicated in favor of defendant and against plaintiff and (b) all other issues are adjudicated in favor of plaintiff; it is further ORDERED that within 20 days of the date of this order plaintiff’s counsel and defendant’s counsel shall submit to the Court owing calculations as to the dollar amounts claimed to be due and owing. This Court does not adjudicate the statute of limitations issue in the pleadings.

On October 10, 1988, the court ordered that a $2,054.39 balance remained as due and owing as of the date of the Arizona execution redemption on March 10, 1986. An appeal was then filed by Peoples Bond & Mortgage Company, the judgment creditor.

The issue presented in this appeal is what interest rate Pennsylvania should require to be paid in order to satisfy a Pennsylvania judgment. We are not presented with the issue of whether Arizona may elect to require the payment of a ten percent (10%) rate of interest on a Pennsylvania judgment which has been transferred to Arizona.

The Appellant has argued first that Arizona, pursuant to the Uniform Enforcement of Foreign Judgments Act, may choose to impose a ten percent (10%) interest rate on a Pennsylvania judgment which has been transferred to Arizona and second, that the Appellee may not collaterally attack this determination. We agree that the Appellee is bound from collaterally attacking a determination of an Arizona court. We do not believe, however, that the Appellee has sought to collaterally attack an Arizona judgment.

If Arizona has adjudicated this case in any way, its adjudication has been limited to an analysis of the appropriate interest rate for Arizona to require for the satisfaction of the Pennsylvania judgment. The Appellee, on the other hand, has petitioned the courts of Pennsylvania to determine why his Pennsylvania judgment debt should not be satisfied. This determination involves the issue of the rate of interest to be applied by Pennsylvania, not the rate to be applied by Arizona.

Appellant has presented several cases in support of his contention that Arizona was justified in applying a,ten percent (10%) rate of interest to the Pennsylvania judgment. Salmeri v. Salmeri, 554 P.2d 1244 (Wyo.1976), Joplin Corp. v. State ex rel. Grimes, 570 P.2d 1161 (Okla.1977), Cahn v. Cahn, 119 Misc.2d 150, 462 N.Y.S.2d 535 (1983). Each of these cases, however, involves the application of an interest rate to a foreign judgment by the transfer forum. These cases do not reflect the issue in the immediate case. In this case, the original forum state must apply its own rate of interest to one of its own judgments. The fact that the judgment has been transferred to a foreign state and that a payment has been made in that foreign state is of no consequence with regard to Pennsylvania’s obligation to follow its own rules of law concerning judgment satisfaction.

It is clear that the “Arizona Judgment” was an exemplification of a Pennsylvania Judgment issued solely for the purpose of attaching property outside Pennsylvania. Since the obligation was determined in Pennsylvania, we hold that Pennsylvania must apply its own rate of interest to satisfy the judgment in Pennsylvania. To hold otherwise would allow judgment creditors to forum shop for higher interest rates. Therefore, the trial court was correct in applying the Pennsylvania interest rate to satisfy a Pennsylvania judgment.

Affirmed.


text:
    562 A.2d 324
    Bernardine Conway POWELL, Appellee, v. Cyril F. CONWAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1988.
    Filed June 29, 1989.
    Reargument Denied Aug. 23, 1989.

      Richard H. Roesgen, Williamsport, for appellant.
    James D. Casale, Williamsport, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a trial court order directing appellant to pay child support. Appellant raises two issues for our review: (1) whether the trial court erred in failing to dismiss appellee’s complaint after a Florida court order disposed of appellee’s claim for support pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA); and (2) whether an adult child who is estranged from her parent should be denied support from that parent for college expenses. We affirm.

On December 18, 1986, appellee, on behalf of the parties’ daughter, Jennifer, filed a complaint seeking support for tuition and other expenses incurred by Jennifer as a college student. On March 6, 1987, appellant filed a preliminary objection, in the nature of a demurrer, claiming that the instant action was barred by a final judgment entered in the State of Florida. This final judgment provided for dismissal of a URESA support proceeding in Florida Circuit Court on the ground that Jennifer was emancipated, having reached her 18th birthday and completed high school. On June 19, 1987, appellant’s preliminary objection was dismissed; and upon stipulation, the matter was submitted to a master without a hearing. The master filed his report, and ordered appellant to pay college expenses and arrearages. Exceptions were timely filed by appellant and, on January 13, 1988, a hearing de novo was held before the trial court. On February 3, 1988, the trial court issued an order directing appellant to pay $50 in support per week, retroactive to the date of the filing of the Pennsylvania complaint. The trial court further ordered that:

Beginning on the 10th day of February, 1988 and on or before the 10th day of each month thereafter, the defendant shall pay to Jennifer Conway the sum of $217.00 per month. The arrearage which has accumulated between the filing of the complaint on December 19, 1986 and today’s date shall be liquidated through a lump sum.

Order at 2. This appeal followed.

Appellant maintains that the trial court erred in failing to dismiss appellee’s complaint because a prior Florida order barred the instant action for support. Appellant asserts that the trial court was required, pursuant to the Full Faith and Credit Clause, Article IV, Section 1, of the United States Constitution, to give effect to the judgment of the Florida Circuit Court. In accordance with the full faith and credit clause, an out-of-state judgment is to be given the same recognition and res judicata effect as it would receive in the state in which it is rendered. Morris Lapidus Associates v. Airportels, Inc., 240 Pa.Super. 80, 82, 361 A.2d 660, 662 (1976) (allocatur denied). It is evident that Florida does not recognize a cause of action by an adult child for payment of college expenses by either parent. In Kern v. Kern, 360 So.2d 482 (Fla.App.1978), the Florida District Court of Appeals was called upon to decide “whether a parent in a dissolution proceeding, absent an agreement, may be required to provide a college education for an adult child of the marriage under the terms of a child support decree.” Id. 360 So.2d at 483. The Florida court concluded, inter alia, that a parent owes no duty to an adult child to provide a college education. The court reasoned:

The question of whether a parent owes a duty to a healthy natural adult child is one over which confusion exists among the courts of this state. No such duty is imposed on a child’s natural guardian since these statutory duties are extinguished upon the child’s emancipation. Moreover, it is clear that the children of a sound, harmonious marriage have no right to require their parents, no matter the degree of wealth they enjoy, to furnish a college education. It can hardly be contended that the law places upon the divorced parent any greater obligation toward his children than he has in the absence of divorce. In fact, such an interpretation may give rise to valid constitutional infirmities in that the state would have no reasonable grounds to treat the adult children of divorced parents any differently than the adult children of married parents. While we are fully aware that in our sophisticated, technological society, advanced education is a valuable asset, our system has not yet imposed a duty on any parent to provide a complete college education for his children. Although a parent may suffer a moral obligation to assist children in acquiring an advanced education, we find nothing in either the jurisprudence of the statutes of this state which makes such a moral obligation legally enforceable. A parent, does not owe a duty to an adult child to provide a college education. With this view, a multitude of jurisdictions in these United States agree.

Id. at 484-485 (footnotes omitted). Although there is no parental duty to provide a college education under Florida law, it does not follow, however, that the Florida judgment bars the instant claim for college expenses. We are not compelled to recognize out-of-state judgments that contravene the public policy of this Commonwealth. See Myers v. Young, 285 Pa.Super. 254, 258, 427 A.2d 209, 212 (1981) (Virginia order suspending support and inconsistent with policy of Pennsylvania did not preclude entry of Pennsylvania support order). In Pennsylvania, an adult child, under certain circumstances, is entitled to receive financial assistance from either parent for his college expenses. See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182, 183 (1963); Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989). Thus, enforcement of the Florida judgment would directly contravene the public policy of this Commonwealth. In light of the foregoing, we find that the trial court did not err in rejecting appellant’s argument.

Appellant also maintains that the trial court erred in awarding support for college expenses to a child who has reached majority and is estranged from her parents. Appellant relies on this Court’s decision in DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987). We agree with appellant that the DeWalt Court stated that an adult child should not be entitled to payment of college expenses by a parent whom he has shunned. We, however, note that the pertinent language in DeWalt is dicta and, therefore, not controlling. Nonetheless, we recognize that this Court, in its en banc decision in Milne v. Milne, supra, has directly addressed this issue of estrangement and we, accordingly, rely on its precedential value. In Milne, this Court held that an adult child’s willful estrangement from his or her parent is a factor to be considered by the trial court in determining whether a parent is excused from contributing to the child’s college education. This Court stated:

[W]e now make it clear that estrangement is one of the circumstances to be formally considered in deciding post-minority support cases. It should not necessarily be a complete defense to such an action, barring an award, nor even a dispositive factor, but it should be weighed in the equitable balance. The question is not whether we would choose to address certain concerns, but rather whether those concerns need to be addressed in order to reach a just result, one that takes into account the welfare of the child, the good of society and the continued existence of the family. A family includes parents.
If as an adult, a child repudiates a parent, that parent must be allowed to dictate what effect this will have on his or her contribution to college expenses for that child. We will not provide such a child with the means of inflicting yet another blow to a parent who has already suffered the deeply painful rejection of his or her child. Just as divorcing parents run the risk of alienating their children, adult children who willfully abandon a parent must be deemed to have run the risk that such a parent may not be willing to underwrite their educational pursuits. Such children, when faced with the answer “no” to their requests, may decide to seek the funds elsewhere; some may decide that the time is ripe for reconciliation. They will not, in any event, be allowed to enlist the aid of the court in compelling that parent to support their educational efforts unless and until they demonstrate a minimum amount of respect and consideration for that parent.

Id. 383 Pa.Super. at 197-198, 556 A.2d at 865. Applying the principles and rationale delineated supra, this Court found that the trial court erred in ordering Karen Milne to contribute to the costs of the college education of her son, Caleb Milne. The record clearly indicated that Caleb was estranged from his mother as a result of his own unilateral actions. This Court stated:

Caleb Milne and his mother are estranged. It is undisputed that it was Caleb’s unilateral choice to leave his mother’s house. Caleb’s testimony shows his feelings of justification in cutting off relations with his mother and his lack of desire to improve them. The record indicates that, while her attempts to stay in contact with him have not been successful, she has made some efforts to leave the door open for his approach, should he wish to do so.

Id. 383 Pa.Super. at 185, 556 A.2d at 859. These facts contrast greatly with those found by the trial court in the instant case:

Here, the facts do not support a finding that the child unilaterally shunned her father’s love. Rather, the weight of the evidence presented at this hearing shows that when the mother and father separated in 1974, they agreed that the father would maintain custody of the two older boys, and the mother would have custody of the daughter. Neither parent appears to have any significant involvement with the out-of-custody child(ren) after that date. The father did pay child support for his daughter as he was required by Court Order. However, there is no indication that he made any significant effort to maintain a relationship with her. About .the time the daughter reached majority (summer of 1985), she traveled from Florida, where she had been living with her mother, to visit her mother’s relatives in Pennsylvania. She took the initiative to telephone her father in the hope of meeting with him. She would meet him only if he was alone, and he would meet with her only if his second wife and other family members were present. The meeting never took place. What we have here, then, appears to be more of a mutual rejection than a case where estrangement results solely from a child rejecting her father’s loving overtures.

Opinion at 18-19. Unlike the circumstances in Milne, the instant case does not require consideration of Jennifer’s interaction with her father “to reach a just result.” Both Jennifer and her father are responsible for any estrangement between them. Consequently, we find no error by the trial court in failing to consider estrangement as a factor in its determination.

Order affirmed.

WIEAND, J.,. concurs in the result.

      . Jennifer’s date of birth is April 28, 1968. Attached to the complaint is a signed authorization by Jennifer to file a petition on her behalf "for support as well as for payment of [her] college education.”

      . While Jennifer was a minor, appellant filed a complaint in Florida under the Uniform Reciprocal Enforcement of Support Act. On January 11, 1980, a URESA support order was entered in the Court of Common Pleas of Lycoming County.

      . Article IV, Section 1 of the United States Constitution provides in pertinent part: “Full Faith and Credit shall be given in each State to the ... judicial Proceedings of every other State and the Congress may by general Laws prescribe the Manner in which such ... Proceedings shall be proved, and the Effect thereof.”

      . Milne, supra, was decided by this Court during the direct appeal of the instant case. It is well established that an intervening change in law must be applied to cases which are in the throes of appeal when the change occurs. Leland v. J.T. Baker Chemical Co., 282 Pa.Super. 573, 577, 423 A.2d 393, 396 (1980).

      . The trial court distinguished the case sub judice from DeWalt, supra.

      We note that we may affirm the decision of the trial court without regard to the grounds relied upon by the trial court. Grim v. Betz, 372 Pa.Super. 614, 618, 539 A.2d 1365, 1367 (1988).


author: McEWEN, Judge: POPOVICH, Judge,

text:
    562 A.2d 327
    Richard G. HANNA, Jr., d/b/a Hanna International-GMC, Appellee, v. KEY COMPUTER SYSTEMS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1989.
    Filed July 3, 1989.
    Reargument Denied Aug. 14, 1989.

      Mark A. Givler, Lock Haven, for appellant.
    Donna L. Rae, Lock Haven, for appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which denied the petition of appellant to open a default judgment in the amount of $117,444.76, entered in favor of appellee upon a claim of breach of a contract for the sale and licensing of computerwares. After extended and intense deliberation, we reverse.

The record discloses the following chronology in this 1987 Clinton County Common Pleas Court action:

March 11 — Complaint filed.
March 17 — Complaint served.
March 30 — The president of appellant forwards to counsel for appellee a statement outlining appellant’s defense.
April 6 — The president of appellant and counsel for appellee discuss the claim by telephone. Settlement was mentioned, but the amount of settlement was not discussed.
—Counsel for appellee forwards to appellant a notice of default judgment.
April 8 — Counsel for appellee presents, in a letter to the president of appellant, a settlement demand, as well as an ultimatum that appellant provide for a response no later than “Friday, April 16” (April 16 was actually a Thursday). Counsel for appellee also advised that appellee would take further action, if appellant failed to respond, but made no reference to the notice of default letter sent two days earlier.
April 9/10 — The president of appellant advises counsel for appellee that the offer is unacceptable.
April 20 — Counsel for appellee at 8:30 a.m. on this Monday morning proceeds to the entry of default judgment.
May 1 — Appellant files a petition to open default judgment.

When the trial court dismissed the petition and refused to open the judgment, this timely appeal followed.

Our review is controlled by the firmly established principle that before a court may exercise its discretion to open a default judgment, the moving party must show (1) that ,the petition to open was promptly filed, (2) that a meritorious defense exists, and (3) that the failure to act can be reasonably explained. See: Rounsley v. D. C. Ventre & Sons, Inc., 361 Pa.Super. 253, 256, 522 A.2d 569, 571 (1987); Wolfskill v. Egan, 350 Pa.Super. 223, 224, 504 A.2d 326, 327 (1986).

Since appellee does not dispute that appellant proceeded promptly to open the judgment, and that appellant has alleged the existence of a meritorious defense, the sole issue for judicial scrutiny is whether appellant presented a reasonable excuse for its failure to plead in timely fashion.

It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, the ruling of the trial court will not be disturbed on appeal. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984). As our esteemed colleague Judge Donald E. Wieand reechoed in Buxbaum v. Peguero, 335 Pa.Super. 289, 484 A.2d 137 (1984), “ ‘[o]ur considerations as to the presence or absence of these requirements is tempered by our application of equitable principles, for we sit as would a chancellor in equity to determine how best justice can be served.’ ” Id., 335 Pa.Superior Ct. at 294, 484 A.2d at 140 quoting Toplovich v. Spitman, 239 Pa.Super. 327, 329, 361 A.2d 425, 426 (1976). See also: Chervenak, Keane & Company, Inc. v. Hotel Rittenhouse Associates, Inc., 328 Pa.Super. 365, 371, 477 A.2d 487, 490 (1984).

There is sound basis for the decision of the trial court to refuse to open the default judgment. The appellant must, of course, be charged with the dreadfully poor judgment displayed by its president who demonstrated an awareness of (1) the considerable amount of the claim, (2) the need to engage in legal procedures, (3) the need to rely upon those procedures in timely fashion, and (4) the severe adverse consequences of a failure to do so. The president of appellant attempted to display to counsel for appellee a sophisticated knowledge of legal affairs, but has revealed instead a shallow conceit which associates must find offensive.

Nonetheless, after careful reflection, including particular emphasis upon the following equities, we are compelled to conclude that the default judgment should be opened so as to enable the claim to be the subject of a trial:

There exists, as appellant concedes, a meritorious defense to a claim of a considerable amount.
******
Counsel for appellant communicated with counsel for appellee on April 20, 1987, thirty-four days after the complaint was served.
Counsel for appellant filed a petition to open on May 1, 1987, so that, in effect, the issue was joined forty-four days after the complaint was served. As a result, the delay imposed upon appellee was minimal and any prejudice suffered by appellee was negligible.
******
The discussion of settlement was entered upon by the parties within the twenty day deadline for responding to the complaint. Appellee during that settlement discussion extended the deadline for response to the complaint, affording to appellant the color of excuse for concluding that rigid compliance with the extended deadline was not a matter of essential urgency.

It is well established that an appellate court may not substitute its judgment for that of the trial court. We do not here do so. Rather, we are compelled to the conclusion that the refusal of the trial court to open the default judgment composed an abuse of discretion.

Order reversed. Case remanded. Jurisdiction relinquished.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting.

I dissent. The majority correctly states the standard of review which we employ presently: “[Bjefore a court may exercise its discretion to open a default judgment, the moving party must show (1) that the petition to open was promptly filed, (2) that a meritorious defense exists, and (3) that the failure to act can be reasonably explained. See: Rounsley v. D.C. Ventre & Sons, Inc., 361 Pa.Super. 253, 256, 522 A.2d 569, 571 (1987)[.]” Majority Opinion at 10. See also Jung v. St. Paul’s Parish, — Pa. —, 560 A.2d 1356 (1989). The majority, applying that standard and, at the same time, invoking broad equitable powers, reverses the decision of the lower court.

While I do not believe that appellant has offered a reasonable explanation for his failure to plead in a timely manner, the majority cites, as a reasonable explanation, the following:

The discussion of settlement was entered upon by the parties within the twenty day deadline for responding to the complaint. Appellee during that settlement discussion extended the deadline for response to the complaint, affording to appellant the color of excuse for concluding that rigid compliance with the extended deadline was not a matter of essential urgency. (Majority Opinion at 12). However, the majority also states:
There is sound basis for the decision of the trial court to refuse to open the default judgment. The appellant must, of course, be charged with the dreadfully poor judgment displayed by its president ... The president of appellant attempted to display to counsel for appellee a sophisticated knowledge of legal affairs, but has revealed instead a shallow conceit which associates must find offensive. (Majority Opinion at 10-12).

Upon review, I am convinced that appellant has not offered a reasonable excuse for his failure to plead in a timely manner. This is not a case where judgment should be opened because appellant’s counsel, through oversight or incompetence, deprived the appellant of his “day in court.” See Jung, supra; Commonwealth, Dept. of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982), citing Johnson v. Yellow Cab Co., 226 Pa.Super. 270, 307 A.2d 423 (1973). Rather, the cavalier attitude of appellant’s president was the sole cause of appellant’s failure to plead in a timely manner, not the appellee’s gratuitous extension of the initial filing deadline as cited by the majority. As such, I am unable to conclude that the trial court’s refusal to open the judgment constituted an abuse of discretion.

      . The standard of review most commonly employed by the appellate courts is to determine whether the decision of the trial court composes an "abuse of discretion”. That phrase is generally defined as “not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence in the record, discretion is abused.” Melzer v. Witsberger, 505 Pa. 462, 475 n. 8, 480 A.2d 991, 997 n. 8 (1984) quoting In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958). It is thus apparent that the term "abuse of discretion" covers a wide range of judicial mishap, from imprecision to misfeasance.
      The trial court has here proceeded to an application of the prevailing law to a particular factual situation in reaching a conclusion. We have engaged in that same process but reach a quite opposite conclusion. We have not, however, simply engaged in the substitution of our judgment for that of the trial court. Rather, we have a deep and serious difference of opinion with the trial court as to the effect of the application of the law to the facts of the case. Since this appellate tribunal is a constant witness to the intense and careful study provided by the trial judges of this Commonwealth to the issues which confront them, it seems somewhat inappropriate, when a disagreement with the trial court, even though deep, is but a difference of opinion, to label that difference of opinion “an abuse of discretion".
      Thus, the appellate courts might better serve to rely for reversal, in such cases, upon a different label, such as, for example, the phrase— "carefully considered difference of opinion”. Such a term does not loose the restriction that we refrain from substitution of our opinion for that of the hearing court. Rather, it simply substitutes a label which more aptly, and, perhaps more sensitively, describes the basis for appellate reversal of the hearing tribunal.