author: BECK, Judge:

text:
    561 A.2d 25
    COMMONWEALTH of Pennsylvania v. Albino C. ROZPLOCHI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1988.
    Filed June 26, 1989.

      Thomas A. Dreyer, Media, for appellant.
    Ann A. Osborne, Assistant District Attorney, Media, for the Com., appellee.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   BECK, Judge:

The principal issue presented by this case is whether a defendant commits one robbery or two if he threatens to kill two employees of a business establishment during the course of a single theft from the business establishment. We find that under these circumstances, a defendant may be punished for two independent violations of the robbery statute.

This is an appeal by Albino Rozplochi from a judgment of sentence consisting of consecutive terms of imprisonment for two counts of robbery and a further consecutive term of imprisonment for the offense of former convict not to own firearm. Appellant contends that his trial counsel was ineffective for failing to challenge the sufficiency of the evidence of one of the counts of robbery, for failing to challenge the sufficiency of the evidence of the firearm offense, and for failing to request a cautionary instruction regarding identification testimony. Appellant also contends that the trial court erred by refusing to suppress identification testimony. After careful consideration, we affirm the judgment of sentence.

The relevant facts are accurately summarized in the opinion of the trial court.

On September 18, 1985, at approximately 8:45 A.M. Barbara Cavaliere and Elizabeth DeJesse, manager and employee, respectively, of the Financial Exchange Company, were inside [the] company office preparing to open for the day’s business. The company is located at 1130 Chester Pike, Sharon Hill, Pennsylvania, and is situated inside of an ACME food store at that address. While preparing to open, Ms. Cavaliere heard a knock on the office door and proceeded to look out of a window located near the door to determine the identify of the person seeking entry. She saw the Defendant standing outside the door and inquired as to how she might help him. Defendant answered that he had a package from her superior, “Bobby Louisa”, and held up a picture identification card and a manila envelope which resembled the envelopes she received daily from the Department of Public Welfare. Ms. Cavaliere, again asked the Defendant to state his business and he replied that he was “on-route” and was in a hurry. Ms. Cavaliere started to admit the Defendant but asked for a closer inspection of his identity card. However, when she opened the door, she saw that Defendant had pulled a revolver from the manila envelope and, upon seeing this, both she and Ms. DeJesse attempted to push the door closed in order to keep the Defendant out. Unfortunately, they were forced to relent in their efforts when Defendant, while brandishing the gun, threatened to “blow them away”.
Once in the office, Defendant pushed Ms. DeJesse against a wall in front of the company safe and pushed Ms. Cavaliere up to the safe. At gunpoint, Ms. Cavaliere emptied the safe of approximately $22,000.00 in cash and food stamps which Defendant stuffed into the manila envelope. When the envelope could hold no more, Defendant grabbed a company money bag and began filling it.
At some point there was a knock at the door. In response, Defendant cocked the gun, held it to the back of Ms. Cavaliere’s head and demanded that she hurry stating “if I don’t get out of here ... you aren’t either”. Ms. Cavaliere noted that the gun was loaded and, indeed she was so close to it that she could see the bullets inside. Moments later, Defendant left the store with the money and food stamps. The entire incident took approximately ten minutes during which time the Defendant was in full view of his victims for almost the entire time.

Trial Court Op. at 1-2 (citations to record omitted). We further note that in her trial testimony, Ms. DeJesse specified that appellant pointed his gun at her and directed his threats at her as well as at Ms. Cavaliere.

Appellant was apprehended and charged with numerous offenses including one count of robbery based upon his conduct toward Ms. Cavaliere and one count of robbery based upon his conduct toward Ms. DeJesse. On April 22, 1986, following a jury trial, he was found guilty of both counts of robbery, as well as of theft by unlawful taking, theft by receiving stolen property, possession of an instrument of crime, simple assault, recklessly endangering another person, and terroristic threats. On July 14, 1986, following a separate bench trial, appellant was convicted of former convict not to own firearm. He was sentenced on July 2, 1987 to consecutive sentences of ten to twenty years for the first robbery count, ten to twenty years for the second robbery count, and one to five years for former convict not to own firearm. The court found that the remaining crimes had merged with the robbery convictions.

Appellant filed a timely notice of appeal from his judgment of sentence. He obtained new counsel for the appeal, and now asserts that his trial counsel provided ineffective representation.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e. had an adverse effect on the outcome of the proceedings.

Commonwealth v. Davis, 518 Pa. 77, 83-84, 541 A.2d 315, 318 (1988). See also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). Applying this standard, we find that appellant’s allegations of ineffectiveness are without merit.

I.

Appellant first argues that his trial counsel should have challenged the sufficiency of the evidence as to one of the counts of robbery. He emphasizes that the assets which he stole belonged exclusively to the Financial Exchange and that he did not at any time attempt to confiscate the private property of either Ms. Cavaliere or Ms. DeJesse. He further notes that although he threatened both employees, only Ms. Cavaliere was compelled to hand him cash belonging to the Financial Exchange. He therefore reasons that only one robbery took place and that the victim of that robbery was the Financial Exchange, rather than either of the women he held at gunpoint.

Whether a defendant commits multiple robberies if he threatens two people while attempting to steal the property of their common employer is a question of first impression for the appellate courts of Pennsylvania. See Commonwealth v. Dooley, 332 Pa.Super. 227, 231 n. 3, 481 A.2d 336, 338 n. 3 (1984) (declining to reach issue). To answer this question, we must examine the section of the Pennsylvania Crimes Code which defines the offense of robbery. That section provides in relevant part:

(1) A person is guilty of robbery, if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.Cons.Stat.Ann. § 3701.

During the course of committing a theft from the Financial Exchange, appellant threatened Ms. Cavaliere with immediate serious bodily injury. This was sufficient to constitute robbery. During the course of committing a theft from the Financial Exchange, appellant also threatened Ms. DeJesse with immediate serious bodily injury. This was also sufficient to constitute robbery. Thus, the text of the statute indicates that appellant committed two robberies when he threatened two individuals during the course of a single theft.

This reading of the statute is in accord with the Pennsylvania Supreme Court’s interpretation of another section of the Crimes Code in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). In Frisbie, the defendant was convicted of nine counts of recklessly endangering another person after driving his car through a busy intersection and injuring nine pedestrians. In upholding the convictions, the Court employed the following analysis.

The Crimes Code defines the crime of “recklessly endangering another person” as follows:
§ 2705 Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
18 Pa.C.S.A. § 2705 (emphasis added). Construing this language “according to the fair import of [its] terms,” we conclude that § 2705 was written with regard to an individual person being placed in danger of death or serious bodily injury, and that a separate offense is committed for each individual person placed in such danger.
Where the legislature has intended to preclude multiple punishments for multiple injuries resulting from a single act, it has expressly done so. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976). For example, in § 2707 of the Crimes Code, the legislature made it a crime to “throw ... a rock, stone, brick ... or any deadly or dangerous missile ... into a vehicle ... that is occupied by one or more persons____” 18 Pa.C.S.A. § 2707 (emphasis added). Similarly, § 2710 of the Crimes Code makes it a crime to commit an offense under any other provision of Article B (offenses involving danger of the person) “with malicious intention toward the race, color, religion, or national origin of another individual or group of individuals” 18 Pa.C.S.A. § 2710 (emphasis added). Had the legislature intended to preclude multiple punishments under § 2705, that section would read: “a person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person or persons in danger of death or serious bodily injury.”
Our conclusion is also supported by the general purposes of the Crimes Code. 18 Pa.C.S.A. § 104. Among those purposes are that of insuring that punishment is proportionate with criminal liability, 18 Pa.C.S.A. § 104(3), and that of differentiating among offenders based on the seriousness of their offenses, 18 Pa.C.S.A. § 104(5). An offender whose unlawful act harms or is likely to harm many people is more culpable, and thus deserving of more severe punishment, than an offender whose unlawful act harms only one person.

506 Pa. at 464-68, 485 A.2d at 1100-01. Cf. Commonwealth v. DeSumma, supra at n. 4 (each act of placing another in fear of imminent serious bodily injury constitutes separate assault under simple assault statute); Commonwealth v. Zaengle, 345 Pa.Super. 124, 497 A.2d 1335 (1985) (each act of unintentionally causing death of another while violating a law applying to the use of motor vehicles constitutes a separate offense under the homicide by vehicle statute).

Frisbie indicates that by defining the crime of robbery as threatening another during the course of a theft, the legislature intended to permit separate punishments for threatening more than one person. If the legislature had intended to preclude multiple punishments, it could have defined robbery as threatening another person or persons during the course of a theft. Just as appellant could have been convicted of two counts of recklessly endangering another person by waving a gun at both Ms. Cavaliere and Ms. DeJesse, he may be convicted of two counts of robbery for threatening to harm both Ms. Cavaliere and Ms. DeJesse while stealing from the Financial Exchange.

In arguing for the opposite conclusion, appellant cites Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972). His reliance on that case is misplaced. In Lockhart, the defendant forced the victim to hand over both $800 of his own money as well as additional funds belonging to his employer. The Superior Court held that a defendant commits only one robbery if he takes property belonging to different owners from the same person at the same time. As the appellant notes, the Lockhart case states that “a separate robbery may be found to have occurred each time another individual is put in fear, and from whom goods or money is taken.” 223 Pa.Super. at 62, 296 A.2d at 884. From this, appellant would conclude that separate robberies cannot be found to have occurred unless more than one individual is put in fear and goods or money are taken directly from each of those individuals. Lockhart does not stand for this principle. Instead, Lockhart is consistent with the view that the number of robberies that results from a single course of conduct depends upon the number of persons who have been threatened with physical harm. We conclude that where only one person is threatened, only one robbery occurs even if the defendant makes off with goods that belong to two owners. However, where more than one person is threatened, more than one robbery may occur even if the defendant makes off with goods that belong to only one owner.

We further note that Lockhart was decided under the common law of robbery and before the adoption of section 3701 of the Pennsylvania Crimes Code. Section 3701, the current robbery statute, was derived from the Model Penal Code. The commentary to the Model Penal Code states that “[t]he primary concern [of the robbery provision] is with the physical danger or threat of danger to the citizen rather than with the property aspects of the crime.” Model Penal Code and Commentaries § 222.1 commentary at 100 (Official Draft and Revised Comments 1985) (footnote omitted). This language tends to undermine appellant’s theory that he is guilty of only one robbery because all of the cash and food stamps that he took were owned by the Financial Exchange. The purpose of the robbery statute was not exclusively to protect the property interests of institutions such as the Financial Exchange. Section 3701 was primarily intended to protect people such as Ms. Cavaliere and Ms. DeJesse by deterring threats against workers who are under a duty to safeguard the financial reserves of their employers.

We are aware that in other jurisdictions, courts have significantly limited criminal liability for multiple counts of robbery. In several states, if a defendant commits a theft from a business enterprise, he can be found guilty of only one robbery regardless of how many people he has forced to hand over the assets of the enterprise. See, e.g., State v. Collins, 329 S.E.2d 839 (W.Va.1984) (collecting cases); State v. Faatea, 65 Haw. 156, 648 P.2d 197 (1982). In other states, the number of robberies for which the defendant may be prosecuted depends upon the number of people from whose possession property has been taken separately by force or intimidation. See, e.g., Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152 (1986) (collecting cases). These authorities do not control our interpretation of the Pennsylvania Crimes Code. Moreover, we note that our interpretation of Pennsylvania law is in accord with the decision of the Supreme Judicial Court of Massachusetts in Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928 (1982). The Levia opinion states:

So long as the victim of the assault has some protective concern with respect to the property taken from his person or presence, then the defendant may be convicted and sentenced for a separate and distinct robbery as to that person. If the indictments or counts for the robbery of numerous persons are unreasonably multiplied, the judge, in superintending the course of trial and in passing sentence, will act accordingly to prevent oppression.

385 Mass, at 350-351, 431 N.E.2d at 931 (citations omitted).

In the instant case, both Ms. Cavaliere and Ms. DeJesse were employees of the Financial Exchange and both had a protective concern for the property of the Financial Exchange. We need not decide whether appellant could be convicted of multiple robberies if he had threatened several bystanders who had no connection with the owner of the stolen property. We hold that where a defendant threatens to inflict serious bodily injury on two employees in order to effectuate a theft of property from their common employer, the defendant may be convicted of two counts of robbery.

We conclude that the evidence produced at appellant’s trial was sufficient to sustain his conviction for two robberies. Trial counsel cannot be deemed ineffective for failing to assert a meritless claim. Commonwealth v. Groff, 378 Pa.Super. 353, 364-366, 548 A.2d 1237, 1243 (1988). Therefore, appellant was not deprived of the effective assistance of counsel by counsel’s failure to seek an arrest of judgment on one of the robbery counts.

II.

Appellant next argues that counsel was ineffective for failing to contest the sufficiency of the evidence of the crime of former convict not to own firearm. Section 6105 of the Crimes Code provides, “No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.” Section 6102 of the Crimes Code defines “firearm” as “[a]ny pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.” The barrel length specified by section 6102 is an essential element of the offense proscribed by section 6105. Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978). Appellant contends that the judge that convicted him could not have found that this element had been established beyond a reasonable doubt. We do not agree.

The judge who heard evidence at appellant’s July 14,1986 bench trial on the firearm offense had previously presided over the April 22, 1986 robbery trial discussed in section I of this opinion. At the July 14, 1986 trial, appellant admitted that he was a former convict and he also stipulated as to all facts presented to the jury at the robbery trial. Thus, in determining the sufficiency of the evidence, we may consider all of the evidence adduced at the robbery trial. Moreover, we must view this evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Ogin, 373 Pa.Super. 116, 120-122, 540 A.2d 549, 552 (1988) (en banc).

At the robbery trial, Ms. Cavaliere testified that appellant initially concealed the weapon inside a manila envelope. She described the envelope as “about this high” and “not too wide”. Although the record before us does not reveal the length of the envelope, the judge would have been able to estimate this length by observing Ms. Cavaliere’s hand motions when she described the envelope as “about this high”. The judge could then have concluded that the length of the gun barrel was less than the length of the envelope. In addition, the judge also heard Ms. DeJesse testify at the robbery trial that appellant’s weapon was a “small black gun” (emphasis added).

In Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981), we found that counsel was not ineffective for failing to seek an arrest of judgment following a conviction under section 6105 where the jury observed the gun in question and was properly instructed as to the statutory gun barrel length requirement. Under such circumstances, we presumed that the defendant’s weapon had a barrel length of under 12 inches in the absence of any evidence to the contrary. Therefore, we reasoned that a challenge by counsel based upon barrel length would not have had arguable merit. This reasoning applies with equal force to the case sub judice. Although the finder of fact did not observe the gun itself, the finder of fact observed a witness who indicated the dimensions of the envelope in which the gun was contained. The finder óf fact was a judge and as such is presumed to know the law. See Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa.Super.1989). Moreover, none of the evidence of record indicates that the gun had an exceptionally long barrel length and appellant has never offered to come forward with ány evidence which would show that the gun was not a firearm. We find that this sufficiency claim is without arguable merit and that the trial counsel was not ineffective for failing to argue this issue.

III.

Appellant’s remaining issues concern the identification testimony of Ms. Cavaliere arid Ms. DeJesse at his robbery trial. Appellant claims that trial counsel was ineffective for failing to request a cautionary instruction regarding this testimony. Appellant also claims that the identification testimony should never have been admitted into evidence.

Viewed in the light most favorable to the Commonwealth as verdict winner, the facts relating to eyewitness identification are as follows. Ms. Cavaliere and Ms. DeJesse were robbed while inside the Financial Exchange office on September 18, 1985. The office is approximately twelve feet across and eight feet wide and is illuminated by bright fluorescent lights. Both victims were in close proximity to the holdup man for about ten minutes.

In early October of 1985, a police officer met with both witnesses on separate occasions and showed them a photo array. All of the photos in the array were of young men. This array contained Commonwealth Exhibit C-l, a photograph of the appellant taken ten years before the crime. In this photograph, appellant is wearing an undershirt and is staring directly into the camera. Both witnesses picked Exhibit C-l out of the array but each said that the holdup man looked older than in the picture.

A few weeks later, the police officer met with both of the witnesses on separate occasions and showed them a second photo array. All of the photos in this second array were of older men. This array contained Commonwealth Exhibit C-2, a photograph of the appellant taken about six months before the crime. In this photograph appellant is wearing a suit and tie, his head is tilted at an angle, and his eyes are downcast. Both witnesses failed to pick Exhibit C-2 out of the array.

A few weeks later, the police officer met with both of the witnesses on separate occasions and showed them a third photo array. This array contained Commonwealth Exhibit C-3, a photograph of the appellant that was taken within the past month. In this photograph, appellant is wearing a shirt and is staring directly into the camera. Both of the witnesses immediately identified Exhibit C-3 as a photograph of their assailant.

At trial each of the witnesses testified that she was absolutely sure that appellant was the man who had robbed her. Ms. Cavaliere emphasized that she recognized the appellant’s eyes. Similarly, Ms. DeJesse stated, “His eyes would never change.” Trial counsel attempted to impeach these identifications on cross-examination, but both witnesses were unshakable. The photographs of the appellant in each of the arrays were moved into evidence and were examined by the jurors. These three photographs became part of the record filed on appeal with this court and have been examined by this court.

Appellant relies on Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), which states:

[Wjhere the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

378 Pa. at 424, 106 A.2d at 826. Appellant argues that the trial testimony of Ms. Cavaliere and Ms. DeJesse was weakened by their failure to select Exhibit C-2 from the second array. He therefore reasons that counsel was ineffective for not requesting a cautionary instruction under Kloiber.

The fact remains that the eyewitness testimony in this case was uncommonly strong. The two eyewitnesses had ample opportunity to observe appellant at close range during the robbery. Each of them independently identified him at the first photo array, at the third photo array, and at trial. Moreover, the failure to identify appellant’s photograph from the second array may be readily explained. This photograph, which like the others is part of the record, looks substantially different from the other two and does not clearly show appellant’s most notable feature — his eyes. The fact that the witnesses failed to spot appellant’s photograph in the second array cannot reasonably be said to have weakened their prior and subsequent identifications to any significant degree. We find that under the facts of this case appellant was not entitled to a Kloiber charge. Accordingly, the allegation that counsel was ineffective for not requesting a Kloiber charge has no underlying merit.

Finally, appellant argues that the trial court erred by failing to suppress identification evidence. Suppression of identification evidence is required where the totality of the circumstances indicates that identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of a mistaken identification. Commonwealth v. Monroe, 373 Pa.Super. 618, 542 A.2d 113 (1988). Nothing in the instant case rises to this level.

Appellant primarily relies upon the fact that he was represented in each of the photo arrays that the witnesses examined. He notes that in Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976), a plurality of the Pennsylvania Supreme Court ordered the suppression of identification testimony where the complainant had seen the defendant’s photograph in multiple photo arrays. Fowler is clearly distinguishable from the case sub judice. In Fowler the complainant had seen the defendant only momentarily at the time of the crime; here, both witnesses had an excellent opportunity to observe appellant during the holdup. In Fowler, the complainant admitted that she had been exposed to the defendant’s photograph many times during numerous photo arrays; here, the witnesses viewed only three photo arrays. In Fowler, the defendant’s photograph differed significantly from most of the other photographs in the arrays; the same cannot be said in this case. Furthermore, in the instant case, the witnesses viewed photographs that showed the appellant at different ages and in different poses. We do not interpret Fowler as establishing a per se rule that an identification is unreliable whenever a witness has observed a defendant’s photograph in more than photo array. We find in this case that the trial court did not abuse its discretion by admitting the identification evidence.

Judgment of sentence affirmed.

      . 18 Pa.Cons.Stat.Ann. § 3701 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 6105 (Purdon 1983).

      . Commonwealth v. Gray, 339 Pa.Super. 385, 489 A.2d 213 (1985) and Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980) concern similar issues but neither is directly on point. In Gray, we held that a defendant may be convicted of two robberies if he forces both a bartender and a customer of the bar to hand over property during the same holdup. In Bryant, we held that a defendant may be convicted of five robberies if he terrorizes five individuals while attempting to steal property belonging to each of them but succeeds only in stealing property which belonged to four of them.

      . Justice Papadakos has expressed the view that Commonwealth v. Frisbie may have been implicitly overruled by the Pennsylvania Supreme Court’s decision in Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). See Id., 521 Pa. at 366, 555 A.2d 1234 (Papadakos, J., concurring and dissenting). However, the Court recently cited Commonwealth v. Frisbie with approval in Commonwealth v. DeSumma, — Pa. —, 559 A.2d 521 (1989). We conclude that Commonwealth v. Frisbie has not been overruled.

      . Appellant has not argued on appeal that the trial court failed to prevent oppression when it imposed consecutive sentences. Moreover, such a claim would be without merit. At the sentencing hearing, the court noted that the defendant had committed six prior robberies and that the holdup of the Financial Exchange had a substantial psychological impact on both employees. In light of the broad discretion afforded the sentencing authority, we cannot say the decision to impose consecutive sentences was improper. Under other circumstances, such as where a first-time offender threatens numerous individuals during a single theft, lengthy consecutive sentences might arguably result in a punishment so excessive as to pose a substantial question as to whether the aggregate sentence was appropriate under the Sentencing Code. See generally Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

      . Appellant’s brief also contains a section in which he asserts that the trial court imposed an illegal sentence. This section simply incorporates by reference the argument that appellant committed only one robbery. We find that appellant was properly convicted of two counts of robbery, and we further conclude that his sentence on the robbery counts is not illegal. An act which injures multiple victims may serve as a basis for multiple sentences where the legislature intended that each injury would be punished as a separate offense. See Commonwealth v. Frisbie, 506 Pa. at 464-66, 485 A.2d at 1100.


source: Caselaw Access Project

author: BROSKY, Judge: McEWEN, Judge,

license: Public Domain

text:
    561 A.2d 33
    Henry DESKIEWICZ & Patricia Ann Deskiewicz, Husband and Wife v. ZENITH RADIO CORPORATION, Zenith Electronics Corporation, International Piping Systems, and Robert Lempa, Estate of Steven Maruscak, Dec’d, Robert Franks, James Bakert, Apex Electrical Engineering Co., General Electric Co., & Joe Doe a/k/a Project Engineer For General Electric Co. Appeal of ZENITH RADIO CORPORATION and Zenith Electronics Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1989.
    Filed June 26, 1989.

      Joel D. Gusky, Philadelphia, for appellants.
    Gerard Bruderle, Philadelphia, for Intern. Piping, appellees.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   BROSKY, Judge:

This is an appeal from an order finding that appellee, International Pipings Systems (IPS), was not obligated to indemnify appellant, Zenith Radio Corporation for a liability imposed upon Zenith for personal injury. IPS was contracted by Zenith to dismantle a large machine and move it to a plant located in Illinois. An employee engaged in this process was injured and a settlement was later reached with Zenith. Zenith sought indemnification from IPS under a contractual clause.

Zenith raises two issues for resolution: (1) was IPS contractually obligated to indemnity Zenith the sum paid the plaintiff? and (2) was IPS contractually obligated to pay Zenith’s attorneys fees and costs in defending the underlying action? Upon consideration of the arguments advanced by all parties, we reverse.

The facts relevant to disposition of this appeal are, briefly stated: On or about October 9,1981, Zenith and IPS entered

into a contract whereby IPS was required to disassemble, inter alia, a General Electric Oxidizer for reassembly at Zenith’s manufacturing plant in Melrose Park, Illinois. Subsequently, IPS subcontracted the disassembly of the Oxidizer to plaintiff, Henry Deskiewicz. On the date of the accident, plaintiff sustained serious bodily injury when he jumped from an eight (8) foot-high platform after he placed a screwdriver into a 30-amp switch which he believed to be de-energized. He had placed the screwdriver into the switch for the purpose of confirming the fact that the machine had been de-energized.
Extensive discovery revealed that the only defendants against whom plaintiffs had a viable claim were Zenith and IPS.
On June 23, 1988, the case at bar was assigned for trial. Prior to impanelling a jury, the trial court conducted a thorough pre-trial conference and heard the parties’ respective contentions regarding liability and damages.
As a result of the conference, plaintiffs agreed to accept, if offered, $165,000.00. Later that day, plaintiffs agreed to accept 75% of the settlement demand or $123,-750.00 from Zenith. Subsequently, on June 27, 1988, plaintiffs accepted IPS’s settlement offer of $40,000.00 and the case, as between plaintiffs and defendants, settled.
In Zenith’s Answer to Plaintiffs’ Complaint, it pleaded a crossclaim against IPS for contractual indemnity and for reimbursement of counsel fees and costs. This cross-claim was denied by IPS. Counsel for Zenith and IPS agreed that Judge Moss would retain jurisdiction over the case to resolve the contractual indemnity issue between them. With the trial court’s permission, appellant and appellee submitted Stipulated Findings of Fact in lieu of live testimony.
On August 17, 1988, an Order was entered denying Zenith’s contractual indemnity claims. This appeal followed.

A fundamental rule of construction in the law of contracts states that words, phrases and clauses will be given their plain and ordinary expressed meaning. If this is so, then this particular area of law, indemnification for damages or injuries arising from negligent acts, could be thought of as an exception to the general rule. If literal effect was given to these clauses then indemnification would be enforced. Yet due to policy and practical considerations decisions have been handed down indicating that such generally worded indemnification clauses will not be construed to mean that the indemnitor will indemnify the indemnitee for liability resulting from the indemnitee’s own negligence. See Perry v. Payne, infra. Cases holding thusly are creating a rule of construction, not an absolute rule. Increasingly since the first pronouncement of this rule of construction the rule has been recognized to be only that, a rule of construction; and, cases have been reported finding an indemnification clause to cover injuries arising from the joint negligence of indemnitor and indemnitee. The rule has evolved up to and including the relatively recent case of Urban Redevelopment Authority v. Noralco Corp., 281 Pa.Super. 466, 422 A.2d 563 (1980), which further developed the rule to include concepts of active and passive negligence of the indemnitee. Of considerable importance also is the recognition in Noralco, that in addition to the four corners of the agreement, the surrounding circumstances must be considered in determining the scope of the clause. It is within this context that we examine the agreement in question here.

In this particular case, Zenith contracted IPS to perform the service of disassembling a large piece of machinery and transportation of it to a plant in Illinois. Zenith paid IPS approximately $29,000 for this service. The contract states:

The contractor is an independent contractor, shall be in charge of the work, and shall be solely responsible for the acts and omissions of all his employees and all subcontractors, their agents and employees, and other persons performing any of the work for or under a contract with the contractor.

It was further stipulated that IPS and plaintiff had control over the manner in which the disassembly was to be performed. Of equal importance to our analysis is the indemnification clause itself, it reads:

The contractor agrees to indemnify, hold harmless, and defend the owner, its subsidiaries, affiliated companies, and agents and employees ... from and against all claims or liabilities for damages (including costs of suit, attorney’s fees of owner, and if awarded against owner by a court, attorney’s fees of claimant) in any manner arising out of or resulting from:
(a) Performance of the work, provided that any such claim or liability (1) is attributed to bodily injury ... and (2) is caused in whole or in part by any negligent act or omission of the contractor, any subcontractor, anyone directly or indirectly employed by any of them ... (emphasis supplied).

Of particular importance, in our opinion, is the language “in whole or in part by any negligent act.” This is explicit language which envisions the possibility that IPS will be obligated to indemnify Zenith even though someone other than IPS has contributed, through a negligent act or omission, to the liability imposed upon Zenith. Furthermore, to the extent the factor which triggers the indemnification obligation is the assumption of, or imposition upon, Zenith of a liability for personal injury, certainly a negligent act of Zenith must be considered one of the more likely and logical prefaces to imposition of such liability upon Zenith, and as such, arguably within contemplation of the subject indemnification clause. In light of the wording of the clause, we believe, to remain consistent with Noralco, it is essential that all of the circumstances be considered in deciding whether indemnification will follow the subject clause under the facts presented here.

Another important paragraph in the contract reads:
SAFETY: The contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the work.
The contractor shall comply with all applicable laws, ordinances, rules, regulations and orders of any public authority having jurisdiction for the safety of persons or property to protect them or it from damages, injury or loss.

Another factor important to the analysis here, which was implicitly given credence in Noralco, is the obligation, under the subject contract, of the contractor to purchase or provide insurance coverage. With these key facts delineated we turn to the law of indemnification.

The Noralco case represents one of the more recent and thoroughly analyzed cases in this area of law. It set forth a paraphrasement of the early cases establishing the principle that such generally worded clauses will not be construed to cover liability from the indemnitee’s own negligence. These cases recognize that to hold otherwise would be tantamount to placing the indemnitor in the position of an insurer. However, it is worth noting that the earlier cases making such a holding involved situations where the indemnitee was solely or principally responsible for the injury. This was the case in Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907); and Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961). Thus, allowing indemnification in those cases would have placed the indemnitor in, essentially, the position of an insurer.

Noralco also, at least implicitly, recognized that the circumstances surrounding usage of these clauses have changed since the time of the earlier decisions and that in reality such clauses are being used more and more to allocate risk of loss and the cost of providing insurance. The case further distinguished the concept of active and passive negligence and the importance those concepts play in construction of these clauses. Noralco essentially establishes that although parties would not generally be thought of providing indemnification where the injury is caused by the active negligence of the indemnitee, the same cannot be said when the indemnitee is partially responsible for the injury by virtue of passive negligence.

The rationale in Noralco, in this regard, is in keeping with the general rationale of Perry and its progeny. The true essence of those holdings is a simple recognition that in executing such a provision the indemnitor is not agreeing to insure the indemnitee against loss, but, rather is acknowledging that its own actions may result in liability being imposed upon the indemnitee, and that it will, in such cases, reimburse the indemnitee for that liability. However, this rationale is less convincing, if convincing at all, where the injury is the result of the indemnitor’s active negligence, and the indemnitee is, at most, passively negligent. In such a case the indemnitor can hardly be said to be “insuring” against the injury, for the injury would not have occurred absent the indemnitor’s own negligence. Or, quite possibly, to put it into context with the contract, the injury would not have occurred if the work had been performed in a manner consistent with the contract.

Furthermore, it is not at all inconsistent with such an interpretation to state that a certain amount of passive negligence might be expected by the indemnitee in such cases. Often when such agreements are entered into they are done so because the indemnitee is asking the indemnitor to perform a function the indemnitee is not qualified to perform or does not wish to perform itself.

The present case is a fine example. Zenith contracted out the job of disassembly and moving the oxidizer. Although the exact reasoning of such choice is not of record some common reasons for such actions would be that Zenith lacked qualified personnel to perform the job, or to perform the job without substantial risk of injury to individuals or, perhaps, damage to the oxidizer. Furthermore, it would not be unreasonable for Zenith to expect the professionals contracted to be able to overcome potential obstacles or avoid pitfalls or hazards that its own personnel might not be able to do. Clearly this is often an expectation when professionals are hired to do a job and often a reason for such hiring. As such, allowing indemnification when the indemnitee is only passively negligent certainly, would not run contrary to the general rationale in this area of law.

In analyzing the present case, the circumstances of the accident itself must be considered. Plaintiff was in the process of removing or displacing a generator atop of the oxidizer. It was essential that the oxidizer be “de-energized” and all power being fed into the machine be cut off. Stephen Maruscak, an engineer employed by Zenith was on hand to assist in electrical matters. Yet there is no indication that Maruscak was supervising the process, but rather that plaintiff and a Robert Lempa, of IPS, were in control of the work. Maruscak was asked by plaintiff and Lempa to de-energize a 400-amp switch which provided power to a 30-amp switch which was part of the generator. Maruscak placed the 400-amp switch in the off position. Plaintiff then, for the purpose of double-checking to see if the generator had indeed been de-energized, inserted the tip of a screwdriver into the 30-amp switch whereupon sparks began to fly from the switch. After several seconds of repeated sparking, plaintiff, in fear for his safety, jumped from the top of the oxidizer injuring his leg.

It is clear that the fact that the generator was not de-energized was a key factor in the injury. The exact reason why the generator remained energized after the switch had been placed in the off position is unknown. An expert’s report was included by reference to the stipulations of fact. This report indicates many negligent acts and omissions occurred.

We cannot agree with the trial court’s conclusion that Zenith was actively negligent. The trial court reaches this conclusion primarily because Zenith's employee placed the switch in the off position yet the oxidizer remained energized. However, this does not compel a finding of active negligence. The failure to de-energize the oxidizer would be a result of active negligence if, perhaps, the switch had been clearly marked and Maruscak had mistakenly thrown the wrong switch. Yet the evidence does not support any such scenario. The evidence supports a finding that Maruscak threw what was believed to be the proper switch into the off position, yet the oxidizer remained energized. The expert report indicates that the possibilities for the oxidizer remaining energized included an ambiguous labeling of the switches, the existence of an undocumented feederpath to the switch, and a miswired upstream disconnecting device. Although the report indicates there were many shortcomings in the electrical setup, their contribution to the accident would have to be considered of a passive type. Even if the wrong switch was thrown by Maruscak, this would not compel a finding of active negligence if the switch was mis- or ambiguously labeled and a reasonable person would have believed that by throwing the switch the oxidizer had indeed been de-energized. The facts stipulated to simply do not present a negligent throwing of the wrong switch.

In contrast, the negligence of IPS and plaintiff was of an active type. It included all of the shortcomings in the dismantling of the machine, including failure to follow proper electrical procedures and, of course, the actual act of sticking a screwdriver into an electrical switch for the purpose of testing it. As the expert opined, “if they had observed good engineering practice and industry standards, he would not have been injured.” Mazer report, p. 4.

In consideration of all the factors present in this case, as we believe we must consider under Noralco, we believe that due to the fact: (1) that the job was hired out to professionals; (2) that IPS and the plaintiff were given full control over the performance of the work; (3) that IPS was contractually obligated to follow applicable safety laws and regulations and was obligated to provide insurance; and (4) that under the wording of the clause, IPS was liable over to Zenith for damages assessed against injuries arising in whole or in part out of its negligence. The reasonable expectations of the parties would indicate that IPS would be bound to indemnify Zenith for liability imposed upon Zenith where IPS was at least partly responsible and where Zenith was not wholly responsible.

Zenith is in a position to argue that but for the negligence of IPS no accident would have occurred. Although, Zenith’s passive negligence certainly played a role in the occurence of the accident, they can just as clearly argue that had IPS simply complied with the contract and performed the work in a professional manner, no accident would have occurred. As such, IPS, by virtue of such a construction, is not even remotely being put, in this case, in the role of insurer and Zenith is, in essence, merely being given the benefit of its bargain. We further believe the case of Babcock & Wilcox Co. v. Fischbach & Moore, Inc., 218 Pa.Super. 324, 280 A.2d 582 (1971), supports this conclusion.

In Babcock, this court considered an indemnification situation subject to a clause similar to the one in question here. That clause stated that the indemnitor-contractor would indemnify Babcock for any claim on account of injury to any person arising in whole or in part out of the wrongful acts or omissions of the contractor. This phrase was followed with a statement that the indemnification agreement shall not include injuries due wholly to the negligence of Babcock. The court indicated that the “in whole or in part” language could be read to except the negligence of the indemnitee, but ultimately rejected this interpretation. The court referred to the clause in the following fashion:

We find no ambiguity in the terms of the agreement but, on the contrary, find it explicit in its terms. It clearly and unequivocally shows the intention of the parties to have been that F. & M., the contractor, agreed to indemnify B. & W. for any and all claims, etc., arising in whole or in part out of the wrongful acts or omissions of F. & M., its employees, agents or servants, which included claims from accidents for which B. & W. was partly at fault, but not to do so for claims arising wholly from the negligence of B. & W.

Although the court seemed to find the statement that no indemnification would follow if the injury was due wholly to Babcock’s negligence a factor in reaching their conclusion, further consideration of the clause suggests that the statement is really superfluous and adds nothing to the agreement. To the extent an injury was due wholly to Babcock’s negligence, and thus within the scope of the second phrase, it would not be due in whole or in part to the indemnitor. The indemnitor’s obligation was not triggered, under the agreement, unless its negligence was at least partly responsible for the event bringing rise to the liability. As such, the second phrase does nothing more than restate the general proposition established in Perry, that the indemnitor will not be put in the position of an insurer. The key to Babcock was that the phraseology “in whole or in part” differed from standard indemnification language and was construed by the court to be broader than the standard clause, and broad enough to encompass injury arising from the joint negligence of the indemnitor and indemnitee.

As a secondary matter, appellant argues that it is also entitled to counsel fees and costs incurred in the underlying action for personal injury. Based upon the decision of our Supreme Court in Boiler Engineering and Supply Co. v. General Controls, Inc., 443 Pa. 44, 277 A.2d 812 (1971) we are inclined to agree. The trial court incorrectly concluded that appellant’s cases on this issue involved issues of insurer’s and insureds. However, Boiler Engineering involved the same issue in a conflict between indemnitor and indemnitee which were not insurer and insured.

For the above reasons, we reverse the order appealed from and remand to the trial court for any further necessary actions.

Reversed and remanded. Jurisdiction relinquished.

McEWEN, J., files a concurring statement.

McEWEN, Judge,

concurring:

I write only to assure that the insightful analysis of the indemnification issue provided in the majority opinion does not obscure the particular conclusion which I find controlling, namely, that the contract between the parties revealed their expectation that IPS would be bound to indemnify Zenith for liability imposed upon Zenith where IPS was at least partly responsible, and where Zenith was not wholly responsible, for the injuries suffered by a claimant.


author: PER CURIAM:

text:
    561 A.2d 39
    COMMONWEALTH of Pennsylvania, Appellee, v. James GRUNDY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1989.
    Filed July 11, 1989.

      Mark Pinnie, Media, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   PER CURIAM:

Appellant was convicted, following a jury trial, of simple assault, robbery, recklessly endangering another person, theft by unlawful taking or disposition, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to a total of five to ten years imprisonment. Appellant then filed a motion for reconsideration of sentence which the trial court also denied. This direct appeal followed. Finding no merit to appellant’s contentions, we affirm.

Appellant argues on appeal that: (1) the trial court erred in failing to suppress the out of court identification of appellant; (2) the verdict was contrary to the weight of evidence regarding the robbery; (3) the evidence was insufficient to convict appellant of conspiracy or to find appellant acted as an accomplice; (4) the statutory requirement that the Commonwealth give notice to a defendant after conviction but before sentencing of its intention to seek mandatory sentencing for offenses committed on public transportation deprives a defendant of his due process rights; (5) the evidence was insufficient to establish that the incident occurred in an area leading to or from the immediate vicinity of the public transportation station and (6) the phrase “immediate vicinity” as used in 42 Pa.C.S. § 9713 is unconstitutionally vague. After thoroughly reviewing the record in this matter, we find that the Honorable Charles C. Keeler’s opinion completely and adequately disposes of appellant’s first three arguments and we, therefore, affirm the judgment of sentence as to those issues.

Appellant also argues that he was denied his due process rights as a result of the Commonwealth having provided him notice, subsequent to trial, of its intention to seek mandatory sentencing pursuant to 42 Pa.C.S. § 9713. Section 9713(c) provides in pertinent part as follows:

Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.

42 Pa.C.S. § 9713(c). While this precise issue has never been addressed with regard to this statute, it has been addressed with regard to other similar mandatory sentencing statutes. In Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986), our Supreme Court addressed the constitutionality of the notice provision provided in 42 Pa.C.S. § 9712(b). Section 9712 provides for mandatory sentencing for visibly possessing a firearm during the commission of a crime. The notice provision of Section 9712 employs the same language as Section 9713(c). The court in Commonwealth v. Bell, supra, held that post-conviction notice of the Commonwealth’s intention to seek a mandatory sentence pursuant to Section 9712(b) met the requirements of due process since visible possession of a firearm was not an element of the offense charged but rather a factor which became relevant only at the sentencing stage. Similarly, the commission of a crime on or near a public transportation facility is not an element of the crimes charged in the instant matter. Rather, it is a factor which becomes important only for purposes of sentencing. Thus, we conclude that the post-conviction notice provided for in Section 9713(c) meets the requirements of due process.

Appellant next argues that the evidence was insufficient to support the court’s finding that the incident occurred at or near the vicinity of the public transportation facility. In reviewing a sufficiency of evidence claim, we must determine whether the evidence and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s). Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987). Section 9713 provides for a mandatory minimum sentence of at least five years of total confinement if the offense occurs in or near public transportation. Subsection (b) provides:

... a crime shall be deemed to have occurred in or near public transportation if it is committed in whole or in part in a vehicle, station, terminal, waiting area or other facility used by a person, firm, corporation, municipality, municipal authority or port authority in rendering passenger transportation services to the public or a segment of the public or if it is committed in whole or in part on steps, passageways or other areas leading to or from or in the immediate vicinity of such a public transportation vehicle, station, terminal, waiting area or other facility.

42 Pa.C.S. § 9713(b). The Commonwealth presented evidence that the incident occurred on a passageway leading from a train station to an adjacent parking lot. Thus, we conclude that the evidence presented was sufficient to support a finding that the incident occurred in an area leading from a public transportation facility.

Finally, appellant contends that the phrase “immediate vicinity” as used in 42 Pa.C.S. § 9713 is unconstitutionally vague. Initially, we must address whether appellant has standing to raise this constitutional issue. Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308 (1985). Subsection (b), in relevant part, provides that a crime shall be deemed to have occurred in or near public transportation ... if it is committed in whole or in part on steps, passageways or other areas leading to or from, or in the immediate vicinity of such a public transportation facility. 42 Pa.C.S. § 9713(b) (emphasis ours). The evidence presented here established that the incident occurred on a passageway leading to and from a public transportation facility. Thus, the phrase “immediate vicinity” was not even applied to the facts of the instant matter. Where an ascertainable standard is present in a statute, the individual whose conduct falls clearly within the scope of that standard has no standing to challenge that statute on the basis of vagueness. Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). Moreover, a person to whom a statute may constitutionally be applied cannot challenge that statute on the ground that it may be applied unconstitutionally to others in situations not before the court. Commonwealth v. Stock, supra. Accordingly, we conclude that appellant lacks standing to raise this issue.

Judgment of sentence affirmed.


author: DEL SOLE, Judge:

text:
    561 A.2d 41
    MELLON BANK, N.A., v. Aubrey K. LEE, Jr., and Joyce F. Lee, His Wife, and the United States of America. Appeal of Aubrey K. LEE, Jr., and Joyce F. Lee, His Wife.
    Superior Court of Pennsylvania.
    Argued March 28, 1989.
    Decided July 7, 1989.
    Petition for Allowance of Appeal Denied Nov. 27,1989.

      Daniel L. Sautel, Pittsburgh, for appellant.
    Arthur M. Lebovitz, Pittsburgh, Mellon Bank, appellee.
    Before WIEAND, DEL SOLE and MELINSON, JJ.
   DEL SOLE, Judge:

Aubrey K. and Joyce F. Lee, Appellants, appeal from the order of the trial court which granted the Motion for Summary Judgment of Mellon Bank, Appellee. The Lees raise one issue on appeal. We find that issue to be merit-less and affirm the judgment of the trial court.

Mellon Bank loaned the Lees $100,000 on January 29, 1980. The loan was secured by a mortgage on the Lees’ house. In April of 1983, the Lees became delinquent in their payments. On May 20, 1985, Mellon requested foreclosure on the mortgage. On May 22, 1985, letters were mailed to each of the Lees as required by the Homeowners Emergency Assistance Act, 85 P.S. § 1680.401c. On May 2, 1985, unbeknownst to Mellon, the Lees filed a voluntary Chapter 11 Bankruptcy Petition. The filing of such a petition acted as an Automatic Stay against the commencement or continuation of any administrative, judicial or any other action or proceeding against the debtor. (11 U.S.C. § 362(a)). Mellon received notice of the filing on June 25, 1985. After that, all efforts to foreclose on the Lees ceased.

The Lees failed to file a Plan while under the jurisdiction of the Bankruptcy Court to cure the mortgage arrearages. Mellon filed a Motion for Relief from the Stay which was granted on March 24, 1987. On May 20, 1987, Mellon filed a Complaint for mortgage foreclosure. Mellon then filed the Motion for summary judgment which was granted and which is the basis of this appeal.

The issue raised by the Lees in this appeal is whether the May 22, 1985 letters mailed by Mellon in accordance with the Homeowners Emergency Assistance Act violated 11 U.S.C. § 362. The Lees argue that Mellon’s May 22, 1985 letters fell into the category of being the commencement or continuation of an administrative or judicial proceeding or action against the Lees. Therefore, according to the Lees, the May 22, 1985 letters were a nullity and when Mellon was granted relief from the Stay it should have mailed new letters to the Lees.

The Homeowners Emergency Assistance Act, 35 P.S. § 1680.401c et seq., was established to provide “a program which will, through emergency mortgage assistance payments, prevent widespread mortgage foreclosures and distress sales of homes which result from default caused by circumstances beyond a homeowner’s control.” (85 P.S. § 1680.401c, see footnote (b) Purpose). Before any mortgagee, such as Mellon, can foreclose upon a mortgagor, such as the Lees, the mortgagee must send a notice to the mortgagor. (35 P.S. § 1680.401c(a)). The notice must include:

... (a) list (of) consumer credit counseling agencies and shall advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise____
If the mortgagor fails to meet with the mortgagee or consumer credit counseling agency or meet any of the time limitations specified in the notice or if the mortgagor’s application for mortgage assistance payments is denied, the mortgagee may, at any time thereafter, take any legal action to enforce the mortgage without any further restrictions or requirements under this article.
35 P.S. § 1680.403c(b), (c).

The effect of § 1680.403c is that it notifies mortgagors that they have a thirty day “automatic stay” available to them in which they can attempt to resolve their delinquency or default before the mortgagee begins foreclosure. The trial court found that the mailing of a § 1680.403c notice was not the commencement or the continuation of an action or proceeding against a debtor. We agree.

A mortgage foreclosure proceeding does not commence until the complaint is filed. Pa.Rules Civ.Proc.Rule 1143. (See McDowell Nat. Bank of Sharon v. Stupka, 310 Pa.Super 143, 456 A.2d 540 (1983) Requirements of rules of civil procedure governing mortgage foreclosures must be strictly followed.) The complaint in a mortgage foreclosure cannot be filed until thirty days (plus three days for mailing) after the § 1680.403c letters have been mailed. Mull v. Pa. Housing Finance Agency 108 Pa.Cmwlth. 459, 529 A.2d 1185 (1987). The mailing of letters of notice in compliance with § 1680.403c constitutes notice to the mortgagor of their rights under the Homeowners Emergency Assist anee Act. It is not a continuation or commencement of an action or proceeding for the purposes of 11 U.S.C. § 362(a).

Mellon’s May 22, 1985 letters to the Lees fulfilled the bank’s obligation under § 1680.403c to notify the Lees of their rights under the Act. Because the Lees had filed a Chapter 11 petition in Federal Bankruptcy Court, they received an Automatic Stay against all of their creditors, including Mellon. After the Lees failed to put together a plan that would resolve their delinquency with Mellon, Mellon, two years after the Stay, received permission from the Bankruptcy Court to begin its foreclosure action. This action took place almost sixty days after the Bankruptcy Court gave Mellon relief from the Automatic Stay.

For over two years the Lees had notice of their rights under the Homeowners Emergency Assistance Act. Even after the Stay was lifted they had almost sixty days to follow the assistance guidelines of the Act. We find that the Lees had more than ample notice of their rights under the Act, none of which they chose to exercise.

Judgment of the trial court affirmed. Jurisdiction relinquished.


author: CERCONE, Judge: WIEAND, Judge,

text:
    561 A.2d 331
    COMMONWEALTH of Pennsylvania v. William L. GRAHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1989.
    Filed June 16, 1989.
    Reargument Denied July 28, 1989.

      Richard E. Bower, Assistant Public Defender, Uniontown, for appellant.
    Alphonse P. Lepore, Jr., Assistant District Attorney, Uniontown, for Com., appellee.
    Before WIEAND, McEWEN and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence. On June 7, 1988, appellant, William Lee Graham, was found guilty by jury of theft by deception. The lower court subsequently denied appellant’s motion for a new trial and/or in arrest of judgment and sentenced him to not less than one (1) year nor more than two (2) years imprisonment. We reverse.

Appellant contends that the lower court erred in denying his demurrer regarding the crime of theft by deception. Specifically, appellant argues that the Commonwealth did not establish the requisite intent for a conviction for theft by deception. We agree.

Reviewing the record, we note that appellant took the stand as a witness following the denial of his motion for demurrer. Recently, in Commonwealth v. Mott, 372 Pa.Super. 133, 539 A.2d 365 (1988), we stated regarding this type of situation:

Moreover, the law is settled in Pennsylvania that since the trial court denied the demurrer and the appellant thereafter presented a defense, his ability to challenge the propriety of the order denying the demurrer is foreclosed. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983). At this point a challenge to the correctness of the trial judge’s ruling can only be regarded as a challenge to the sufficiency of the evidence. Commonwealth v. Hammock, 319 Pa.Super. 497, 466 A.2d 653 (1983).

Id. 372 Pa.Super. at 139-40, 539 A.2d at 368 (footnote omitted). See also Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986).

In the case sub judice, appellant’s demurrer was denied and his counsel chose to proceed with the presentation of appellant’s defense. Thus, appellant can not now challenge the propriety of the lower court’s decision to deny his demurrer. We will, however, evaluate the sufficiency of the evidence in accordance with the dictates of the Watson case.

When reviewing a sufficiency claim, “we [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. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Since findings made by the trier of the facts can be based on circumstantial evidence, criminal intent may be based on circumstantial evidence. Commonwealth v. Quartapella, 372 Pa.Super. 400, 539 A.2d 855 (1988). Viewing the evidence in the light most favorable to the Commonwealth in the instant case, however, we find no violation of section 3922 of the Crimes Code.

The facts, as ascertained from the lower court record, are as follows. On March 11, 1987, appellant was confronted by a confidential informant of the Commonwealth who sought to purchase cocaine from him. The informant was provided three hundred fifty ($350.00) dollars by two officers of the state police narcotics squad for the purchase of contraband. Meeting in Petro’s Bar in Uniontown, the informant tendered the money to appellant. The two then left Petro’s and traveled by automobile to the downtown area of Uniontown, parking across the street from the Greyhound Bus station. The aforementioned state police officers followed them in an unmarked automobile.

Upon their arrival at the Greyhound station, appellant directed the informant to wait in the automobile. Both the informant and the officers observed appellant walking to the general direction of Bake’s Bar. For approximately an hour and fifteen minutes, the informant waited in vain for appellant to return. The informant then entered Bake’s Bar to search for appellant who was not to be found. Appellant was subsequently charged with and convicted of theft by deception.

The crime of theft by deception is defined by statute as follows:

(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. 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;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception. — The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

18 Pa.C.S.A. § 3922.

Our supreme court, in Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977), outlined the mens rea requirement of section 3922. In Gallo, appellant received one thousand seven hundred fifty ($1,750.00) dollars pursuant to an agreement to produce advertising brochures within a ninety (90) day period. Upon his failure to produce the brochures, appellant was charged with and convicted of theft by deception. Our supreme court reversed the conviction, however, finding that the Commonwealth had not established the requisite intent pursuant to Section 3922.

As the court wisely explained, “[i]f appellant’s conviction is to be sustained, it must be because appellant never intended to perform his part of the contract, i.e., supplying the brochures____ The statute specifically states that ‘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). Our review of the record fails to show any evidence as to appellant’s intention except his failure to perform. This alone is insufficient.” Id., 473 Pa. at 191, 373 A.2d at 1111.

Unlike Gallo, the instant case involves contraband and not a lawful contract for goods. Nevertheless, we find the underlying logic of the Gallo case persuasive and its precedent binding. In the case sub judice, no evidence other than non-performance was proffered to establish appellant’s intent in accordance with the mandate of section 3922. Intent can not be inferred from the fact that the cocaine was not delivered and the money never returned. These facts only establish appellant’s non-performance. Thus, in light of Gallo and the plain language of section 3922(a)(1), the evidence presented is inadequate to establish intent on the part of appellant.

The dissent in the instant case, however, argues that the Commonwealth adequately demonstrated appellant’s intent with regard to section 3922. Specifically, the dissent seems to suggest that appellant in the instant case not only failed to perform, but absconded. We disagree. While it is undisputed that appellant did not return either the money or deliver the illegal drugs sought, our review of the record fails to establish that appellant absconded in the sense the word is used in Gallo.

The supreme court in Gallo, quoting this author, noted that the appellant in that case did not attempt to abscond. But as the court also noted in Gallo:

Both the trial court and Superior Court majorities emphasized that appellant never answered Leveto’s calls or answered his letters. Suffice it to say that appellant gave Leveto both the correct telephone number and post office box which appellant had rented. With the ease by which appellant could have been tracked down by his telephone number or post office box, we believe these facts show nothing; in fact, if probative of anything, they would tend to exculpate appellant, as they indicate a lack of intention to deceive.

Gallo, supra, 473 Pa. at 190, 373 A.2d at 1111.

In the instant case, appellant did depart from the police informant’s presence without warning. Our review of the record, however, fails to reveal that appellant “absconded” in the Gallo sense of the word. In Gallo, the supreme court noted that appellant “could have been tracked down by his telephone number or post office box,” suggesting that appellant had not absconded from town. The evidence presented in the case sub judice, in contrast, only demonstrated that appellant left informant’s presence after receiving the money. No evidence is proffered, for instance, regarding appellant’s whereabouts subsequent to the failed transaction. Since no evidence is proffered establishing appellant’s intent other than his non-performance, we find that the Commonwealth failed to establish the requisite mens rea regarding section 3922.

While one may question the wisdom of requiring greater evidence of intent to commit theft by deception than actuad nonperformance of the criminal contract, it is the province of this court to interpret the law as it is written. Perhaps the legislature would be well-advised to reconsider this issue in the future. This is not to suggest, however, that failed drug transactions are not within the scope of section 3922. We are only stating that greater evidence than mere nonperformance will be required to establish intent. This was not done in the instant case.

Accordingly, judgment of sentence is reversed and sentence is vacated. Remanded for proceedings consistent with this opinion.

WIEAND, J., files a dissenting opinion.

McEWEN, J., concurs in the result.

WIEAND, Judge,

dissenting:

I respectfully dissent. Contrary to the majority, I do not view this case as one in which the Commonwealth showed only a failure to perform a promise. This, rather, is a case in which the Commonwealth showed and a jury found that the appellant, William Graham, had absconded with three hundred and fifty ($350) dollars given him by a police informant upon the assurance that he would use the money to make an immediate purchase of cocaine. These circumstances, in my judgment, constituted the crime of theft by deception in violation of 18 Pa.C.S. § 3922.

The facts of this case are readily distinguishable from those in Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977), upon which the majority relies. In Gallo, the appellant entered into a legitimate business contract which was to be performed within ninety days. Noting that the appellant had given the other party to the contract his correct phone number and post office box, the Supreme Court concluded that “ ‘there was no evidence that the appellant attempted to abscond____’ ” Commonwealth v. Gallo, supra, 473 Pa. at 191, 373 A.2d at 1112, quoting Commonwealth v. Gallo, 236 Pa.Super. 557, 566, 345 A.2d 747, 752 (1975) (Cercone, J. dissenting). Thus, the Commonwealth’s evidence showed only a failure by Gallo to perform his contract in a timely manner.

In the instant case, by contrast, appellant took money from a police informant for the express purpose of making an immediate purchase of cocaine. While the informant waited, appellant entered a bar and disappeared. When, after an hour, the informant went into the bar in search of appellant, appellant was nowhere to be found. He had absconded without delivering the cocaine and without returning the money. A jury could infer from these circumstances that appellant had absconded with the money entrusted to him by the informant and without any intent to use it for the purpose for which it had been advanced. To impose criminal liability under these circumstances will not in any way constitute a broad interpretation of the statute which will “jeopardize normal business practices.” See: Commonwealth v. Quartapella, 372 Pa.Super. 400, 402, 539 A.2d 855, 856 (1988), citing Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977). See also: Toll, Pennsylvania Crimes Code Annotated § 3922 at 431-432, quoting Model Penal Code Comment: (T.D. No. 2, pp. 65-73). I would hold, therefore, that the Commonwealth produced sufficient evidence to sustain appellant’s conviction for theft by deception.

Appellant argues further that he was not tried within the time constraints of Pa.R.Crim.P. 1100. This case was pending in the trial court, however, on December 31, 1987, when amended Rule 1100 became effective. Appellant was not then incarcerated while awaiting trial. Therefore, amended Rule 1100 had the effect of extending the time within which to commence trial on the charges against him from 180 to 365 days. See: Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989). Because appellant was tried within 365 days after the filing of the complaint, his Rule 1100 argument is lacking in merit.

Finding no merit in appellant’s remaining issues, I would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 3922.

      . Appellant raises several additional issues pursuant to this appeal. Our resolution of this issue, however, renders the discussion of any other issues unnecessary.

      . In Commonwealth v. Wilson, 5 Pa.D. & C.3d 417 (1978), the court of common pleas was confronted with a factual situation on point with the instant case. The defendant in Wilson agreed to provide a state narcotic agent with heroin for a price of three hundred seventy-five ($375.00) dollars. After receiving the money the defendant departed, “leaving the agent holding the bag instead of the promised bundle.” Id. at 418. Defendant never delivered the drugs or returned the money and was subsequently charged with theft by deception.
      Citing Gallo, the court found that the defendant’s nonperformance was inadequate to establish intent with regard to the theft by deception. Although we are not bound by Wilson, we find the analysis of the lower court persuasive. Interpreting section 3922(a)(1) and following Gallo, the court in Wilson found that the Commonwealth proffered no evidence of the defendant’s intent other than his non-performance. Such is also the case here.