author: HESTER, Judge:

text:
    487 A.2d 919
    The ESTATE OF Blanche B. LEVY, by George Beeke LEVY, Executor, and George Beeke Levy, Individually, and Fabio Del-Casteletto, Appellants, v. CNA INSURANCE COMPANY, a Corporation, t/d/b/a Valley Forge Insurance Company, a Corporation, and GAB Business Services, Inc., a Corporation.
    Superior Court of Pennsylvania.
    Argued Aug. 6, 1984.
    Filed Jan. 18, 1985.

      Max A. Levine, Pittsburgh, for appellants.
    Richard W. DiBella, Pittsburgh, for appellees.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

On December 30, 1981, appellants filed a Complaint in Assumpsit/Trespass against appellees in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellants are George B. Levy, proceeding individually and as executor of the Estate of Blanche B. Levy, deceased, and Fabio Del Casteletto. Appellees are CNA Insurance Company and GAB Business Services, Inc.

According to appellants, CNA issued a homeowner’s insurance policy to Blanche B. Levy for real estate situate at 6411 Bartlett Street, Pittsburgh, Pennsylvania. GAB was CNA’s authorized agent. On December 18, 1980, the residence and its contents were severely damaged by fire. Ms. Levy died in the fire. CNA paid approximately $250,000.00 prior to this action in building and content loss.

This action concerns the following claims: 1) the Estate of Blanche B. Levy for damage to jewelry and furs valued at $35,800.00 and for theft of jewelry and furs valued at $1,000.00; 2) George B. Levy and Fabio Del Castelletto, who claim to have been residents of the dwelling, for loss of use of the premises; and 3) all three claimants for punitive damages.

Appellants granted appellees an extension to February 19, 1982 to file an answer. On that extended date, appel-lees filed preliminary objections in lieu of an answer. These preliminary objections were granted in part thereby compelling appellants to file an amended complaint on April 5, 1982.

Once again, appellees acquired appellants’ consent to extend the time to respond. The extended date was May 7, 1982, the date on which appellees filed a second set of preliminary objections. These preliminary objections were denied by order of court dated June 1, 1982, and appellees were given 20 days to file an answer.

On June 23, 1982, after the 20-day response period had elapsed, appellees filed a request for production of documents and notice of service of interrogatories. No answer was filed. On that same date, appellants filed a praecipe for entry of judgment by default in the amount of $76,-986.00. Judgment was entered in that amount due to appellees’ failure to file an answer to appellants’ amended complaint.

On June 28, 1982, appellees filed a motion to strike the judgment and a petition for rule to show cause why the judgment should not be opened. In their motion to strike, appellees complained that appellants neglected to give notice of their intent to file a praecipe for entry of judgment by default, a violation of Pa.R.C.P. No. 237.1. In their petition to open the judgment, appellees averred that appellants’ praecipe for default judgment violated a spirit of cooperation which the parties had reached earlier in the proceedings. In addition, appellees alleged that their counsel had court appointments in Allegheny County, Elk County and Washington, D.C., along with a one-week jury trial in Mercer County during June, 1982, all of which prevented a timely answer.

On June 28, 1982, appellees’ motion to strike was denied; however, a rule was directed on that date to appellants to show cause why said judgment should not be opened. By order dated November 23, 1982, judgment was opened due to appellants’ failure to give notice of intent to file a praecipe for entry of default judgment. This appeal was perfected from that order.

Following this Court’s disapproval of the entry of “snap judgments” in Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979) and Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974), Pa.R.C.P. No. 237.1 was promulgated and became effective on February 1,1980. Prior to the entry of a judgment by default, Rule 237.1 requires a 10-day written notice of intention to file the praecipe for entry of default judgment. Notice shall not be given until the time for filing an answer has elapsed. With the notice affording the defendant an additional 10 days to respond, default judgment cannot be entered until 30 days passes from the filing of the complaint.

Appellants do not deny their failure to give written notice of their praecipe; nevertheless, they argue that two agreements for the extension of time and the order of court dated June 1, 1982 dismissed the notice requirement. Rule 237.1 provides several exceptions to the notice requirement, two of which are as follows:

1) If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule.
2) This rule does not apply to ... a judgment entered pursuant to an order of court or rule to show cause.

Appellants would have us hold that their consent to give appellees additional time to file answers to the original and amended complaints were written agreements which rendered the notice unnecessary. It is true that following oral consent given by appellants, letters dated January 19, 1982 and May 3, 1982 from appellees’ counsel were written confirmations of extensions to plead to the complaint and amended complaint.

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

However, the dispute here did not arise from appellees’ failure to file answers to the original complaint and to the amended complaint within 20 days of the filing of the amended complaint. It was not until appellees’ preliminary objections to the amended complaint were denied by order dated June 1, 1982, and 20 days had elapsed from that date, that appellees were in default. Appellants did not consent to an extension to file an answer beyond June 21, 1982; therefore, there was no exception to the notice of intent to file a praecipe. The two earlier agreements to extend the time for filing pleadings do not apply to the 20-day response period which commenced on June 1, 1982.

Nor do we agree that the order of June 1, 1982, which denied preliminary objections and instructed appellees to file an answer within 20 days, provided an exception to the notice requirement. The notice requirement does not apply where judgment was entered by order of court. Pa.R.C.P. 237.1(b). Illustrations provided in the comments to Rule 237.1 include an order for judgment as sanctions for non-compliance with discovery rules. The illustrations indicate that Rule 237.1(b) provides an exception where judgment is entered by the court, not upon praecipe to the prothonotary as was done in the case sub judice. The order of June 1, 1982 did not enter judgment. It follows, therefore, that appellants’ failure to give notice of intent to file a praecipe was not excused since no exceptions under Rule 237.1 were available.

Next, appellants argue that the order opening the default judgment “contradicted” the earlier order denying the motion to strike. Apparently, appellants’ use of “contradicted” is the equivalent of arguing that by the doctrine of res adjudicata the denial of the motion to strike precluded argument and ruling on the petition to open.

The motion to strike included one ground for the striking of judgment; namely, appellants’ failure to give notice of intent to file the praecipe. It is also true that the motion to strike was denied while the later order of November 23, 1982 granted the petition to open due to failure to give notice.

We cannot presume, however, that the motion to strike was denied on June 28, 1982 due to a finding that appellants did indeed give notice. That order was not appealed; therefore, we are without the benefit of a lower court opinion explaining the denial of the motion to strike. Also, no record of the argument is before us, and the order itself is not definitive concerning grounds for denial. It is possible that the lower court denied the motion to strike due to its belief that all issues could be addressed during presentation of the petition to open. Due to that possibility, we are constrained not to give the denial of the motion to strike res adjudicata effect. Moreover, it must be noted that appellants do not deny their failure to give notice; therefore, it is inconceivable that the lower court denied the motion to strike following a finding that notice was given.

Furthermore, the denial of a motion to strike is generally not a bar to a subsequent petition to open, as both generally concern separate issues. Judgments are striken only for irregularity on the record. Once regularly entered, they can be opened only upon equitable principles. Johnson v. Moore Motors, Inc., 285 Pa.Super. 237, 427 A.2d 200 (1981); Advance Bldg. Services Co. v. F & M Schaefer Brewing Co., 252 Pa.Super. 579, 384 A.2d 931 (1978).

Finally, appellants argue that the default judgment was improperly opened due to appellees’ failure to demonstrate both an excuse for not filing an answer and a meritorious defense to the complaint in assumpsit/trespass. A petition to open activates the equitable powers of the court and will be granted only upon proof of the following factors: (1) the petition was promptly filed; (2) a meritorious defense to the cause of action can be shown; and (3) the failure to file an answer can be excused. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Quaker Transit Co. v. Jack W. Blumenfeld & Co., 277 Pa.Super. 393, 419 A.2d 1202 (1980).

Appellants concede that the petition to open was promptly filed; it was filed five days following the entry of judgment by default.

Several meritorious defenses exist. First, appellees alleged that George Levy and Fabio Del Castelletto were not residents of the house at the time of the fire. If that were true, they could not recover for loss of use under the policy. Also, they alleged that Mr. Del Castelletto was not a relative of the decedent which would make his interests uninsurable. Finally, an investigation allegedly disclosed that the jewelry and furs, for which claims were filed, were not in the residence when the fire occurred.

We also agree that the default was excusable. Had appellants given notice of intent to file a praecipe for entry of judgments by default, 10 additional days would have been afforded appellees to file an answer. See Pa.R.C.P. 237.1(c). Without notice, appellees were not given a final opportunity to avoid default.

For the foregoing reasons, we affirm.

Order affirmed.

      . We are aware that this basis for opening the default judgment was not alleged in appellee’s petition to open. Appellant does not argue that the petition was granted on grounds other than those alleged; therefore, we will not hold the lower court in error on that basis.

      . Rule 237.1. Notice of Praecipe for Entry of Default Judgment.


source: Caselaw Access Project

author: PER CURIAM: CIRILLO, Judge,

license: Public Domain

text:
    487 A.2d 923
    COMMONWEALTH of Pennsylvania v. Antonio Andeona RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Jan. 18, 1985.

      John D. Finchbaugh, Assistant Public Defender, York, for appellant.
    Sheryl A. Dorney, First Assistant District Attorney, York, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   PER CURIAM:

On August 12, 1982, appellant failed to return to the York County Prison where he was on work outmate status and was charged with escape. He was arrested four days later. Appellant entered a guilty plea and was sentenced to three (3) to six (6) years incarceration. His petition for reconsideration was denied and he has taken this appeal.

Appellant was sentenced under the new Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code Ch. 303 (effective July 22, 1982). He had a prior record consisting of burglary, receiving stolen property and a previous charge of escape. Considering the offense gravity score of 7 for escape and the prior record score of 4, the minimum range under the guidelines was 33 to 49 months. The sentence imposed fell within this range. However, appellant argues that the court abused its discretion in two respects. First, it is claimed that the court failed to consider appellant’s background and the circumstances of the case. Next, he argues that the sentence exceeds the minimum amount of jail time consistent with the protection of the public and appellant’s rehabilitative needs.

In Commonwealth v. Royer, 328 Pa.Superior Ct. 60, 476 A.2d 453 (1984), a panel of this court explicitly found that the requirement, announced in Commonwealth v. Riggins, 472 Pa. 115, 377 A.2d 140 (1977), that the sentencing court must articulate at the time of sentencing the reasons for the sentence imposed, was applicable to cases arising under the guidelines promulgated by the Pennsylvania Commission on Sentencing.

In imposing sentence the court did review appellant’s prior criminal involvement, as well as the circumstances of the present charge of escape. Appellant claimed to have left detention because he had received word that his mother in Puerto Rico was ill; he subsequently learned that she had passed away. He was re-captured in York County only after the police fired shots to stop him. He had attempted to justify his prior escape by claiming he wished to attend his grandmother’s funeral. The court finding that appellant had a poor work history and no job possibilities found no reason to deviate from the standard sentence established by the guidelines.

While it is clear that the court reviewed appellant’s background and the circumstances of the case, we must conclude that its statement of reasons is wholly inadequate. The sentencing code requires that a court follow “the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, ... and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). See Commonwealth v. McCall, 320 Pa.Superior Ct. 473, 467 A.2d 631 (1983); Commonwealth v. Brown, 314 Pa.Superior Ct. 311, 460 A.2d 1155 (1983). The court here did not address such considerations. Where a sentence falls within statutory guidelines, but the court has failed to state, for the record, its reasons, the sentence may be set aside. Commonwealth v. Knepp, 307 Pa.Superior Ct. 535, 453 A.2d 1016 (1982).

In the case at hand the court’s reference to appellant’s work history fell short of that required by Commonwealth v. Riggins, supra. Therefore, we must vacate the judgment of sentence and remand for resentencing.

Judgment of sentence is vacated and the case is remanded for resentencing. We do not retain jurisdiction.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

In Pennsylvania, trial judges are vested with broad sentencing discretion. Absent an abuse of that discretion, we will not interfere with the trial court’s decision. Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983). Accordingly, to facilitate our review, there is the requirement that the sentencing court state on the record its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). From the statement of the reasons by the sentencing judge, we may discern “the thought process by which he arrive[d] at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 896 (1980).

The preferred mode of establishing for the record a basis for imposing the selected sentence is to specifically refer to the statutory guidelines; however, if upon close review of the record it becomes evident that the court considered and applied the guidelines without specific reference to them, sentence will be upheld. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978).

Commonwealth v. McCall, 320 Pa.Super. 473, 482, 467 A.2d 631, 635 (1983) (Judges Spaeth and Cercone joining).

Upon close review of the entire record in this case, I am convinced that the trial court “considered and applied” the considerations of the sentencing code, even though there was no specific reference to them. “In short, we know why appellant is now behind bars.” Commonwealth v. Carter, 336 Pa.Super. 275, 283, 485 A.2d 802, 806 (1984) (Cirillo, J. dissenting).

I would affirm the judgment of sentence.

      . We must disagree with the Commonwealth’s brief that the prior record score was three (3). Both the pre-sentence report and the notes of testimony of the sentencing clearly indicate appellant had three prior offenses: one burglary and two felony Ill’s (receiving stolen property and escape).

      . 204 Pa.Code Ch. 303, also reproduced following 42 Pa.C.S.A. § 9721.


author: PER CURIAM:

text:
    487 A.2d 925
    Carol G. BARAFF, Appellee, v. Robert BARAFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1984.
    Filed Jan. 18, 1985.

      Sanford A. Middleman, Pittsburgh, for appellant.
    Eric Rome, Pittsburgh, for appellee.
    Before ROWLEY, TAMILIA and HESTER, JJ.
   PER CURIAM:

This is a direct appeal from the trial court’s Order of May 20, 1983, modifying a previous Order of January 10, 1983, and dismissing the parties’ exceptions thereto. Appellant, Dr. Robert Baraff, alleges, inter alia, that the trial court erred in distributing the marital property of the parties, refusing to reduce his support obligation and directing him to pay certain counsel fees and costs. We have thoroughly reviewed the record in this case and we find no abuse of discretion in the trial court’s determination regarding the marital property distribution or the award of counsel fees and costs. Accordingly, we affirm that portion of the court’s Order. However, we find that this appeal must be quashed with respect to the claims involving support arrear-ages and appellant’s continuing support obligation.

Mrs. Baraff instituted a support action against Dr. Baraff in 1979, seeking support payments for herself and the parties’ three children. (Allegheny County Common Pleas, No. 110, April Term, 1979) By order dated December 17, 1979 (per Judge William Colbert), Dr. Baraff was directed to pay support in the amount of $1,600.00 per month for his wife and $2,400.00 per month for the children. He was further ordered to pay private school tuition for the children and to provide medical coverage for his wife and children.

Mrs. Baraff filed a Divorce Complaint on July 1, 1980, pursuant to the Divorce Code of 1980. 23 P.S. §§ 101-801. Her complaint, in addition to seeking a divorce, requested equitable distribution of the parties’ marital property, alimony and counsel fees. On August 27, 1980, the divorce proceeding was designated complex by the trial court upon petition of Mrs. Baraff, and discovery was allowed. The progress of this case through discovery to trial was repeatedly impeded by Dr. Baraff’s refusal to cooperate and his failure to supply vital information regarding his financial assets to his wife’s attorneys and the court. In addition, Dr. Baraff failed to appear at a deposition scheduled for January 22,1981, and he refused to answer questions or produce documents at a subsequent deposition on March 16, 1981. His actions resulted in the imposition of sanctions by the court whereby he was precluded from producing evidence at any hearing regarding equitable distribution and counsel fees.

On August 4, 1982, a Petition for Reduction of the December 17, 1979 order of support was filed by Dr. Baraff, representing himself. On October 14, 1982, Dr. Baraff again filed a Petition for Reduction of the support order. Although Dr. Baraff s petitions were filed at the docket number assigned to the divorce proceeding, Dr. Baraff was, in fact, requesting a reduction of the previous support order of December 17, 1979, directing him to make total support payments of $4,000.00 to his wife and children. The support action was actually a separate and distinct proceeding. Dr. Baraff s petitions alleged that there had been a change in circumstances since the support order had been entered; namely, that he had suffered medical problems and his physician had advised him to work fewer hours. Thus, he quit the private practice of neurology resulting in a drastic reduction of income. Again, Dr. Baraff repeatedly failed to appear for medical examinations and the court imposed sanctions whereby he was not permitted to present evidence relating to his medical condition at any hearing in the support action.

By Order dated October 14, 1982, the trial court consolidated the divorce action and the petition for reduction of the support order for hearing. Following hearings on December 13, 14, and 17, 1982, Judge Strassburger filed an Opinion and Order on January 10, 1983, in which he disposed of the issues raised in the support and the divorce actions. The parties’ exceptions to that order were dismissed and this appeal followed.

We first address appellant’s contention that the trial court erred in refusing to reduce his child support obligation under the court’s previous order of December 17, 1979, and in certifying arrearages of $9,944.50 for Dr. Baraff’s failure to make outstanding payments. We find that exceptions to that portion of the trial court’s order which determined Dr. Baraff’s support obligation were improper, and insofar as this appeal is taken from the court’s adjudication of the support case, it must be quashed.

The trial court’s order of January 10, 1983, directed entry of Judgment on support arrearages in the amount of $9,944.50. In addition, although the previous support Order was modified to exclude continued support payments to Mrs. Baraff, the Order was continued insofar as it required $2,400.00 monthly payments for the support of the children. On January 12, 1983, Mrs. Baraff filed a praecipe for entry of Judgment and Judgment was entered for the amount of arrearages set by Judge Strassburger. Dr. Baraff s exceptions to the Order of the trial court, filed on January 20, 1983, challenged, inter alia, both the support order and the certification of arrearages. Following argument, the trial court entered an Order on May 23, 1983, modifying the previous Order in minor respects but otherwise dismissing both parties’ exceptions.

Although the trial court consolidated the matters raised in Mrs. Baraff’s divorce complaint with the claims raised by Dr. Baraff in the support proceeding, the divorce action and the support action were two separate proceedings. Dr. Baraff’s petition was filed pursuant to specific rules governing all civil actions brought to enforce a duty of support or to modify or terminate that duty. See Pa.R.C.P. 1910.1 and Pa.R.C.P. 1910.19. Rule 1910.19 provides that the procedure upon a petition to modify support shall be in accordance with Pa.R.C.P. 1910.10 et seq.

Rule 1910.12(g) provides that no exceptions are to be filed to the final order of the trial court. The fact that the support matter was heard by the court in the first instance, rather than by a hearing officer, does not make the court’s adjudication of support interlocutory, and thus, subject to the filing of exceptions. There can be no doubt that the trial court’s Order of January 10, 1983 certifying arrearages was a final order. The Order directed that Judgment be entered on arrearages in the sum of $9,944.50, and Judgment was subsequently entered on January 12,1983, following praecipe by appellee. Notice of the entry of Judgment was sent to appellant by the prothonotary. At that point, appellant’s remedy was to pay the amount of the Judgment, petition to strike or open the Judgment, or appeal therefrom within 30 days. See Explanatory Note to Pa.R.C.P. 1910.23.

The filing of an exception to that portion of the trial court’s Order which dealt with support arrearages was improper. Likewise, we do not find that exceptions were proper to that portion of the trial court’s order continuing appellant’s child support obligation. We recognize that appellant did not have an opportunity to file exceptions to a report and recommended support order of a hearing officer as prescribed by Rule 1910.12(d) through (g), since all matters were consolidated and heard before the trial court at one time. However, appellant acquiesced in the trial court’s consolidation of these issues. Moreover, appellant does not argue on appeal that the support matters should have been severed from the other claims for equitable distribution, alimony, and counsel fees. Considering appellant’s repeated and deliberate failure to cooperate in the court’s attempts to resolve these matters, the long and arduous history of these proceedings, Judge Strassburger’s familiarity with the circumstances of the case, and the fact that appellant has been represented by at least twelve attorneys, we cannot fault the trial court for scheduling one hearing at which evidence concerning all claims was to be presented. The consolidation of support proceedings with other matters for the purpose of hearing only, does not create a right or obligation to file exceptions to the court’s decision on the support issues where none existed before.

The trial court’s order insofar as it continued appellant’s support obligation for his children and directed that Judgment be entered on support arrearages was a final order and exceptions to that portion of the trial court’s order were not required or allowed under Pa.R.C.P. 1910.12(g). Appellant’s failure to take a timely appeal from the trial court’s order determining the support matters leaves this court without jurisdiction to review those claims.

Appellant also argues that the trial court erred in: 1) awarding his wife an unfair percentage of the marital estate; 2) ordering him to maintain $170,000.00 in life insurance policies naming the children as beneficiaries; 3) ordering payment of certain of his wife’s counsel fees, costs and expenses; and 4) directing payment of counsel fees for his own court appointed counsel. An appellate court will reverse an order determining equitable distribution of marital property only for an abuse of discretion by the trial court. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983). In reviewing the trial court’s determination, we must keep in mind that the court was free to accept or reject the parties’ testimony. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). We have thoroughly reviewed Dr. Baraff’s claims on appeal and we find no abuse of discretion on the part of the trial court. We find that Judge Strass-burger’s considered opinion adequately resolves the issues raised by appellant regarding equitable distribution, life insurance, and counsel fees and expenses. Moreover, although we have determined that the appeal from the court’s support adjudication must be quashed, we have reviewed the record, the parties’ briefs, and the trial court’s opinion regarding that issue and we find that if we were to reach the merits of appellant’s claims regarding support, we would affirm the trial court’s determination.

Accordingly, this appeal is quashed insofar as it raises issues regarding the trial court’s support adjudication. In all other respects, the trial court’s Order is affirmed.

      . Judge Colbert’s decision was affirmed on appeal to this court by per curiam order and memorandum opinion on April 16, 1981. Baraff v. Baraff, 292 Pa.Super. 582, 433 A.2d 547 (1981).

      . A more detailed review of the facts relevant to this appeal is set forth in the opinion of Judge Strassburger.

      . The Family Division Court of Allegheny County has adopted the alternative hearing procedure of Rule 1910.12 governing support actions. See Allegheny County Local Support Rule 1910.10(a).

      . In this opinion, we refer to Rule 1910.12(g) as it existed prior to the amendments adopted October 19, 1983, effective January 1, 1984. Rule 1910.12(g) now provides that no Motion for Post-Trial Relief may be filed to a final order.

      . Our disposition in this case is not inconsistent with the reasoning of an en banc panel of this court in Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983) and the decision of a panel of this court in
        DeWalt v. DeWalt, 309 Pa.Super. 275, 455 A.2d 156 (1983). In Caran-gelo and DeWalt, this court determined that exceptions to a final order were required in cases involving alimony pendente lite and counsel fees and costs by virtue of Pa.R.C.P. 1920.52(b) and Pa.R.C.P. 1038. Nonetheless, the reasoning of DeWalt and Carangelo cannot be applied in cases involving separate support claims. As the court observed in Carangelo:

      Pa.R.C.P. 1920.52(b) includes claims involving child support. Although neither Carangelo nor DeWalt involved child support, the reasoning of these cases may be read as applying to any claim provided for in Pa.R.C.P. 1920.52(b). Neither of the alternative (i.e., ‘office conference’) procedures for support actions, set forth in Pa.R.C.P. 1910.11 and 1910.12, allows the filing of exceptions to the final order. Pa.R.C.P. 1910.1 l(k), 1910.12(g). Some readers may therefore find an apparent conflict between these sections and the court’s reasoning in DeWalt and Carangelo. I don’t believe there is in fact any conflict. Application of the rule of statutory construction that a more specific provision prevails over a more general provision, 1 Pa.C.S. § 1933, shows that Pa.R.C.P. 1910.11(k) and 1910.12(g) would control the need to file exceptions in support actions conducted pursuant to these sections.

        Id., 321 Pa.Super., at 225 n. 6, 467 A.2d at 1335-1336 n. 6. Thus, the more specific support rules were applicable in this case, despite the fact that all claims were consolidated for hearing and decision by the trial court. Under Rule 1910.12(g), exceptions to the court’s support order were not proper.


author: POPOVICH, Judge:

text:
    487 A.2d 929
    COMMONWEALTH of Pennsylvania, DEPARTMENT OF PUBLIC WELFARE, and John A. Fulmer, Sr., Assignee, Real Party in Interest v. Charles E. ANDREWS and Ella Andrews, His Wife, and Ida E. Andrews, Heir, and Viola Statler, Terre Tenant and Helen Shafer, Terre Tenant Appeal of John A. FULMER, Sr.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed Jan. 25, 1985.
    Petition for Allowance of Appeal Denied Aug. 5, 1985.

      Gene F. Roscioli, Easton, for appellant.
    William P. Hogan, Easton, for appellees.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Northampton County entered on May 27, 1983. We affirm.

The factual context within which this dispute arose is complex. Ella Andrews died in 1967 leaving six children as beneficiaries under her will. At the time of her death, she owned a dwelling encumbered by three liens in favor of the Commonwealth of Pennsylvania, Department of Public Welfare. After her death, the real property and dwelling house became vested in her six children or the issue thereof surviving. In 1979, one of her children, Ida, died intestate and without heirs which caused her one-sixth interest to combine with that of her siblings or their issue. Ultimately, the land came to be composed of undivided one-fifth interests. In 1980, John A. Fulmer, Sr., appellant, purchased an undivided three-fifths interest in that property; however, he was relegated to filing an action for specific performance against the remaining undivided two-fifths owners, namely appellee-terre tenants herein, Viola Statler and Helen Shafer, after they allegedly reneged on an Agreement of Sale.

Subsequently, appellant purchased from the Commonwealth the three liens which had encumbered the premises. In 1981, appellant directed a writ of execution to the sheriff on one of the liens against the two-fifths undivided interest of Statler and Shafer. Appellant then purchased this remaining two-fifths interest at a bid of more than $5,000.00. The Sheriff of Northampton County filed a proposed schedule of distribution which applied the proceeds, after the costs of sale and real estate taxes were paid, to satisfy the three liens.

Statler and Shafer filed exceptions thereto, objecting to the application of the proceeds of sale of two-fifths of the land to the real estate taxes and judgment liens entered against the entire property. The exceptions were granted. While the trial court did not adopt Statler and Shafer’s rationale, it fashioned an equitable remedy to recognize their right to contribution. No hearing was held on the exceptions.

The court ordered distribution of the sale proceeds in accordance with the schedule of distribution and ordered that Statler and Shafer be subrogated to three-fifths of the taxes and liens paid out of the proceeds of the sale. It then awarded Statler and Shafer a fresh lien to the extent of three-fifths of the taxes and the original Department of Public Welfare liens.

Appellant contends initially that the lower court committed an error of law in failing to hear evidence. The court was clearly authorized and empowered to “determine the exceptions” and render a decision thereon without a hearing. Pa.R.C.P. 3136(f). This argument is spurious.

The main thrust of appellant’s argument concerns the lower court’s action in failing to strike the exceptions of Statler and Shafer. He simply argues that all the taxes and liens discharged by the sale are entitled to participate in the proceeds of the sale, even though the sale involved only two-fifths of the property.

Indeed,

it is a general rule of law that liens upon real estate, whether prior or subsequent, including any lien on which the sale is made, are divested by judicial sale unless specifically preserved by statute or because of the peculiar character of the lien or encumbrance.

21 P.L.E. § 22, Judicial Sales, Liss v. Medary Homes, 388 Pa. 139, 130 A.2d 137 (1957).

Here, appellant directed the sheriff’s sale against the most junior lien; however, all three liens set forth in the sheriff’s schedule of distribution are entitled to participate in the proceeds of the sale.

Generally speaking, a judicial sale of real estate divests all prior and subsequent liens on the property sold, unless preserved by statute or are by nature incapable of discharge. (cites omitted) However liens in favor of the Commonwealth are only divested to the extent permitted by statute, (cites omitted) This is because of the inherent right of the sovereign to have priority of payment of its obligation. The question of sovereign right is not involved in the instant case. This judgment lien was created by a contract of the parties; none of the attributes of sovereignty entered into it because the State voluntarily gave them up.

Commonwealth v. Udzienicz, 353 Pa. 543, 546, 46 A.2d 231, 232 (1946).

The Legislature specifically exonerated certain liens from discharge by tax sale, [Tax Sale Act, The Act of May 29, 1931. P.L. 280, § 9] and did not include liens of the Commonwealth, so we can only find that it did not intend to preserve such liens, but having already provided for their priority in payment, rested satisfied with that ample protection to the Commonwealth. The tax sale divested the lien of the Commonwealth as any other judgment is divested.

Id. 353 Pa. at 548-549, 46 A.2d 233. See also Ladner on Conveyancing, 4th Ed., § 16.02.

Appellant contends herein that the lower court abused its discretion and committed an error of law in applying the doctrine of subrogation to the instant case.

As the trial court notes, the Supreme Court in Moroney v. Copeland, 5 Wharton 407 (1839) stated:

On a sale of the interest of one tenant in common by execution on a judgment against him, the lien of a prior judgment against both is payable out of the proceeds: and the lien of these taxes being against the land of both jointly, is in the nature of a joint judgment, and must be paid out of the proceeds of sale. But as the effect of such payment is to take the interest of one to pay the whole, he, or those who represent him, have a right to contribution from the other co-tenant, to reimburse them the one-half thus paid.

Moroney v. Copeland, 5 Wharton at 419.

As against the common land, the right [to contribution] is enforceable by (1) subrogating the paying cotenant to the right of the lien holder whose claim the cotenant has paid ..., (2) awarding the paying, cotenant a lien or charge ... or (3) both subrogation and lien____

48 A.L.R.2d 1305, 1309, Cotenants-Contribution-Subrogation.

Subrogation is an equitable doctrine and is applicable when every debt or obligation is paid from the funds of one person although properly payable from the funds of another.

McCahan’s Estate, 312 Pa. 515, 168 A. 685 (1933). (See Thompson v. Griggs, 31 Pa.Super. 608 (1906) where a co-tenant, after judgment was entered on a mortgage on common property, made a payment of principal, interest and costs due on the mortgage, a court ordered her to be subrogated to the rights of her judgment creditor to the extent of one-half of the sum so paid by her and to collect this half out of the interest of her co-tenant in the land.) See also Gearhart v. Jordan, 11 Pa. 325 (1949), Brown v. McCullough, 60 Pa.Super. 98 (1915).

In the instant case, the lower court held that to give effect to the equitable right of subrogation, it would hold that Shafer and Statler have a valid lien to the extent of appellant’s proportionate share, namely three-fifths, of the taxes and liens. We find no error in the court so fashioning a remedy.

Accordingly, we affirm the order of the lower court.

WIEAND, J., concurs in the result.

      . A terre-tenant is one who becomes the owner of an interest in real estate after the lien of a judgment or mortgage has attached. Adelson v. Kocher, 154 Pa.Super. 548, 36 A.2d 737 (1944).

      . He initially maintains that Statler and Shafer lack standing since they allegedly reneged on their agreement to sell their two-fifths interest to him. An action in specific performance was instituted by appellant. Appellant, in effect, argues that should he prevail in that action, Statler and Shafer will lack standing in this action. Since the action in specific performance remains unresolved, Statler and Shafer have standing since they stand to benefit from this action.

      . 72 P.S. § 5860.609, 1947, July 7, P.L. 1368, Art. VI, § 609, reads as follows:
      § 5860.609 Certain liens divested by sale
      Every such sale shall discharge the lien of every obligation, claim, lien or estate with which said property may have or shall become charged, or for which it may become liable, except no such sale shall discharge the lien of any ground rent or mortgage which shall have been recorded before such taxes became liens, and which is or shall be prior to all other liens, except other mortgages and ground rents.
      (Emphasis added)
      Apparently, this section originally provided only that the sale should not discharge specified liens. It was changed by the act of 1939 to provide for the discharge of every obligation, claim, lien or estate except those specified. See Historical Note, 72 P.S. § 5971L


author: WATKINS, Judge:

text:
    487 A.2d 933
    The SUTTER CORPORATION, Appellant, v. TRI-BORO MUNICIPAL AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1984.
    Filed Jan. 25, 1985.

      Thomas M. Marsilio, Hazelton, for appellant.
    Jack M. Stover, Harrisburg, for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Susquehanna County and involves plaintiff-appellant’s appeal from a decision of the court below which found in favor of the defendant-appellee and held that it was entitled to retain the sum of $59,300 in liquidated damages on its contract with plaintiff. Defendant had filed an Answer and Counterclaim to plaintiff’s Complaint. The total contract price was $829,071.89.

Plaintiff, a contractor, and defendant, a municipal authority, entered into a written, public construction contract for the construction of an upgraded sewage treatment plant and pumping station on May 21, 1974. Defendant gave plaintiff a “Notice to Proceed” with the work on July 1, 1974. Article II of the Contract specifically provided that work was to be completed within 365 days of the date indicated in the Notice to Proceed. It further provided that in the event that the contractor failed to complete the work during that period that defendant was entitled to retain the sum of $200 per day, not including Sundays and other legal holidays, as liquidated damages for each day the completion of the work was delayed. Plaintiff did request and received from defendant one extension of time for completion of the work. Said extension was for 125 days moving the contract completion date to October 31, 1975. The court below held that plaintiff did not complete the work until December 1, 1976 when defendant’s engineers certified the project as complete.

Between December of 1975 and December 1, 1976 defendant’s engineer (The firm of Gannett, Fleming, Corddry and Carpenter) conducted numerous inspections and mechanical performance tests of plaintiff’s work. Extensive listings of deficiencies were found in plaintiff’s contract performance. These deficiencies were acknowledged by plaintiff’s personnel as late as November 15, 1976.

Financing for defendant’s project was by a combination of grants and loans from the Farmers Home Administration, the Environmental Protection Agency, the Department of Environmental Resources and the Appalachian Regional Commission. Because full financing of such projects does not become available until the project is complete defendant had to borrow funds for the project from a private lending institution at an annual interest rate of 6%. The financing from Farmer’s Home Administration was at an annual interest rate of %5. Thus, the delay in the completion of the project resulted in defendant being unable to reduce its interim borrowing resulting in excess interest charges. The excess interest charges amounted to $14,000 with regard to the EPA grant and $6,490 per year regarding the Farmer Home Administration financing. In addition the delay resulted in additional engineering fees over and above those originally anticipated. Defendant paid Gannett $42,052.59 over and above the anticipated fee due to plaintiff’s delay in completing the project.

As a result of plaintiff’s delay defendant assessed its liquidated damages for 296.5 days at $200 per day or $59,300. The matter was tried non-jury by the court below after which the court below awarded defendant the sum of $59,300 in liquidated damages as per the written contract. In reaching its decision the court made 99 findings of fact in which it found that plaintiff did not complete the project on time and that this delay resulted in damages to defendant. Plaintiff then appealed to our Court.

Plaintiff does not argue that it completed its work on time. It does argue that it “substantially completed” its work on December 12, 1975 and points out that defendant began treating sewage after that date. The engineer’s completion certificate, however, was not issued until December 1, 1976 when all of the deficiencies had been corrected. The contract provided that “the work shall be completed within 365 calendar days” of the Notice to Proceed. Liquidated damages were provided for “any work that shall remain uncompleted” after the time which had been agreed upon by the parties. The plain language of the contract needs no interpretation. Plaintiff simply did not complete the work until December 1, 1976. The court below did not err in so finding. See Bobali Corp. v. Tamapa Co., 235 Pa.Superior Ct. 1, 340 A.2d 485 (1975). This finding is supported by the fact that the funding agencies did not treat the work as “complete” until all the deficiencies were corrected. We find that the plain language of the contract required that the work be completed on October 31, 1975 (including the 125 day extension) and it was not “completed” until December 1, 1976.

Plaintiff argues that because the deficiencies were listed on a “punch list” by the engineer that it was proven that the project was “complete” on December 12, 1975 and that the “punch list” was for the purpose of listing minor deficiencies. Of interest is the fact that the “minor deficiencies” were not corrected until December 1, 1976. We hold that the method of listing the deficiencies (the “punch list”) did not require the court below to find, as a matter of law, that the work was “complete” on December 12,1975 as argued by plaintiff. Such a determination remained one of fact and sufficient evidence was produced during the trial of the case to permit the court to resolve this factual dispute in favor of the defendant.

Next, plaintiff argues that the court below erred when it failed to consider the “interdependency of the five contractors in relation to the delay of all of them”. Plaintiff argues that there were other contractors involved with this project and that it was unfair to plaintiff for defendant to assess liquidated damages on plaintiff and not the others. A review of the record demonstrates a continuous pattern of delay and untimely work by plaintiff. Although some of plaintiffs delay can be attributed to the untimely work of one of the subcontractors (Rado) which had the contract to do the mechanical work, plaintiff did not seek to join Rado to the instant action. Thus, we agree with the lower court when it states that it would be inappropriate for the court to assess liquidated damages against parties who are not part of the instant action. The only matter at issue here is the contract between plaintiff and defendant and its clear and unambiguous terms call for the assessment of liquidated damages against plaintiff if the work was not completed on time. As noted above there was sufficient evidence for the court below to find as a fact that the work was not completed until December 1, 1976 thereby subjecting plaintiff to an assessment of damages against it as set forth in the contract. There is no requirement that the trial court attempt to apportion liquidated damages among other contractors not parties to this action. To so hold would make such damages not liquidated.

Next, plaintiff argues that the contract provision calling for liquidated damages is unenforceable as unconscionable. We do not agree. In Pennsylvania, liquidated damage clauses have been universally accepted as a necessary part of the law governing construction contracts. See In Re: Plywood Co. of Pa., 425 F.2d 151 (3rd Cir.1970). In this case plaintiff was an experienced contractor which dealt with defendant at arm’s length. The record reveals that its officers understood the contract. Plaintiff argues that the contract is “unconscionable” as applied to this case. It argues that defendant is being permitted to refuse paying for work due to minor, inconsequential deficiencies. We do not agree. The seven areas of the work which remained unfinished were: the control building, the treatment units, outside piping, landscape work, fencing, a pumping station, and the allowance for laboratory tests. These unfinished areas were found by the trial court to be more than minor, inconsequential, or unsubstantial deficiencies. Moreover, the funding agencies would not release the full funding for the project until the deficiencies were corrected. We find that the court below did not err in finding as it did and that the contract was not unconscionable.

Finally, plaintiff argues that the court below committed reversible error when it admitted into evidence testimony as to actual damages incurred by defendant. As a general rule of law it is not necessary to show any actual damages in order to recover liquidated damages pursuant to a contract providing for liquidated damages. 5 Corbin, Contracts Section 1062. The evidence produced at trial indicated that defendant did in fact suffer substantial actual damages which could not have been accurately projected at the time the contract was signed. Plaintiff argues that it was prejudicial to admit such evidence. However, it points to no place in the record where it objected to the introduction of this testimony. Furthermore, it stipulated to the admission into the record of the deposition of Walter W. Shearer whose testimony was solely related to actual damages. Moreover, defendant argues that testimony relative to actual damages was introduced in order to demonstrate the inability to form a precise determination of actual damages. Defendant points to the fact that it was impossible to calculate in advance the precise amount of the inspection costs associated with the contract and that it is impossible to calculate in strict monetary terms the countless hours of time put in by the defendant’s members and the problems and frustrations they faced with the unfinished sewage treatment facility. Thus, defendant argues that it was necessary to introduce this evidence in order to show that the liquidated damage provision of the contract was appropriate.

Plaintiff also cites the case of Mammarella v. Rugeriis, 102 Pa.Superior Ct. 132, 156 A. 549 (1930) in support of its proposition that it was prejudicial to allow introduction of evidence of actual damages in a case involving liquidated damages. In Mammarella, however, the amount of actual damages was less than the liquidated damages and the matter was heard by a jury. The court held in that case that the trial court properly excluded evidence of actual damages because the introduction of such evidence would tend to confuse the jury. In our case the amount of actual damages (to the extent that they could be calculated) was greater than the amount of liquidated damages. Moreover, the court awarded only the liquidated damages set forth in the contract indicating that it was not confused by the evidence on actual damages. Because plaintiff never objected to this evidence and because we find that its introduction had no discernable effect on the outcome of the case we hold that the court below did not commit reversible error in admitting it.

Order affirmed.

      . Because we are affirming the lower court’s decision on the merits of the case we will deny the Appellee’s Motion to Quash the appeal for failure to file exceptions to the order of the lower court. We note that certain delays occurred in entering the judgment of record which was not done until February 17, 1984. We also note that appellant’s counsel has requested the opportunity to brief the issue regarding the failure to file exceptions. Our disposition of the case resolves the matter and removes the necessity of filing any such additional brief.


author: HOFFMAN, Judge: MONTEMURO, Judge,

text:
    487 A.2d 937
    COMMONWEALTH of Pennsylvania v. Thomas Allen RISPO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1984.
    Filed Jan. 25, 1985.

      Richard P. Abraham, Philadelphia, for appellant.
    Seth Weber, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court should have suppressed the evidence seized when law officers, without a warrant, entered his home to retrieve certain property and arrested him. We agree and, accordingly, vacate the judgment of sentence, and remand for a new trial.

On September 5, 1980, appellant was arrested in his home located at 1130 Tennis Avenue in Bensalem Township. He was subsequently charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and conspiracy to possess, possess with intent to deliver, and deliver a controlled substance. On March 16, 1981, appellant’s motion to suppress evidence was heard and denied. Jury trial commenced the next day and, on March 20, appellant was convicted of conspiracy but acquitted on the remaining charges. Appellant’s post-verdict motions alleged, inter alia, that certain evidence seized in the illegal search and seizure should have been suppressed. Appellant, represented by new counsel, also filed a supplemental motion raising the issue of trial counsel’s ineffectiveness. On December 3, 1981, the lower court en banc denied the post-verdict motions. After several hearings, the lower court, per Judge Biehn, denied the ineffectiveness motion on November 8, 1982. Appellant was then sentenced on December 9, 1982, to four-to-twenty-three months imprisonment. This appeal followed.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence____ On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact.
In considering whether the record supports the court’s finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. ... In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal. ... Finally, in deciding whether Fourth Amendment dictates have been abridged, we must consider all of the circumstances of the official intrusion, keeping firmly in mind that the ultimate goal of the Amendment is not the protection of preferred locales, but the protection of individuals and their legitimate expectations of privacy____

Commonwealth v. Eliff, 300 Pa.Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted).

So viewed, the facts are as follows: On September 5, 1980, at approximately 2:30 p.m., Jimmy Baker, a paid police informant, went to the Lower Moreland Police Station to meet two narcotics agents from the Bureau of Drug Control of the Pennsylvania Attorney General’s Office and other police officers. Baker was then fitted with a body wire, given $11,000 in marked currency (the serial numbers of the bills had been previously recorded by the agents), and placed under electronic surveillance from a police van. At approximately 4 p.m., Baker left the station for a prearranged meeting with Gary Christopher, a hairdresser, at the Cosmic Hair Studio located on Bustleton Avenue in the Northeast section of Philadelphia, in order to purchase one pound of methamphetamine. Agents Randolph Bordeleau and William Miller followed in the police van while Agent Steven Richardson followed in a separate vehicle. Baker arrived at the hair salon at about 4:45 p.m., showed the money to Christopher, and negotiated the drug transaction. Christopher told Baker that he would have to make a call for the drugs. After making two telephone calls, Christopher informed Baker that only seven ounces of methamphetamine were available, that the price was $7,500, and that they would have to go and get the drugs. At approximately 6:80 p.m., Baker and Christopher left the hair salon and drove on Woodhaven Road to Bensalem Township. The police followed. At 7 p.m., they stopped near appellant’s home at 1130 Tennis Avenue. Baker gave $7,500 to Christopher, and Christopher entered a side door of the residence. After three or four minutes, Christopher returned to the car carrying a brown paper bag. Baker, looking in the bag, saw and smelled methamphetamine. They then drove off but were stopped approximately one-half mile away by law enforcement officers. Agents Richardson and Miller found seven ounces of methamphetamine and $3,500 cash in a bag on the front seat of the car. They wanted to retrieve the rest of the money so Baker told them which door of appellant’s residence Christopher had entered and exited from. Agent Bordeleau, followed by Agent Richardson, approached the side door of appellant’s home at a fast pace with a gun in one hand and displaying his official identification badge in his other hand. When he came within five feet of the door, it was opened by appellant’s ten-year-old daughter. At this time, Agent Bordeleau raised his badge, loudly announced, “Police,” and then observed appellant “dart from view.” Agent Bordeleau immediately entered the house through the side door (into the kitchen) and proceeded in the direction appellant had gone (into the living room). As Agent Bordeleau entered the living room, he saw appellant about to sit down in a chair. He also saw a black briefcase on an ottoman located less than one foot from appellant. Agent Bordeleau stated, “Police, where’s our money?” Appellant opened the briefcase, and Agent Bordeleau observed a large amount of cash sitting on top of the contents inside. The serial numbers of the bills contained in the briefcase matched the numbers on the bills given to Baker earlier that day. Appellant was then formally placed under arrest. The briefcase and its contents, including the $6,300 in marked bills found therein, were seized.

Appellant asserts that his Fourth Amendment rights were violated when the agents, with guns drawn, entered his home without a search or arrest warrant. The Commonwealth, however, argues that exigent circumstances justified the police conduct. “The Fourth Amendment to the Constitution of the United States ‘protects the people from unreasonable government instrusions into their legitimate expectations of privacy.’ ” Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978); Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977). With few exceptions, the Fourth Amendment requires that law officers obtain a warrant issued by a neutral magistrate before they intrude into a place of privacy. Commonwealth v. Morrison, 275 Pa.Superior Ct. 454, 457, 418 A.2d 1378 (1980) (en banc); Commonwealth v. Gambit, 274 Pa.Superior Ct. 571, 578, 418 A.2d 554, 557 (1980), aff'd per curiam 501 Pa. 453, 462 A.2d 211 (1980); Commonwealth v. Montgomery, 246 Pa. Superior Ct. 371, 375, 371 A.2d 885, 887 (en banc). “As a general rule, a search and seizure without a warrant is deemed unreasonable for constitutional purposes.” Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. Hinkson, 315 Pa.Superior Ct. 23, 27, 461 A.2d 616, 618 (1983). Furthermore, “The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. ... As a result, warrant-less searches and seizures inside a home are presumptively unreasonable.” Commonwealth v. Henkle, 306 Pa.Superior Ct. 346, 352, 452 A.2d 759, 761 (1982). However, warrantless searches and seizures are excused where exigent circumstances exist. Commonwealth v. Montgomery, supra, 246 Pa.Superior Ct. at 376, 371 A.2d at 888. Such circumstances arise “where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.” Commonwealth v. Holzer, supra, 480 Pa. at 102, 389 A.2d at 106; Commonwealth v. Hinkson, supra, 315 Pa.Superior Ct. at 27, 461 A.2d at 618.

An inquiry to determine whether exigent circumstances exist involves a balancing of the individual’s right to be free from unreasonable intrusions against the interest of society in investigating crime quickly and adequately and preventing the disappearance of evidence necessary to convict criminals____ It requires an examination of all of the surrounding circumstances in a particular case,____ These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized.

Commonwealth v. Hinkson, supra, 315 Pa.Superior Ct. at 27, 461 A.2d at 618 (citations omitted). Accord, Commonwealth v. Eliff, supra, 300 Pa.Superior Ct. at 438-39, 446 A.2d at 934-35. “[T]he burden is upon the Commonwealth to prove by a preponderance of the evidence that a search and seizure did not violate the fourth amendment.” Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94. Accord, Commonwealth v. Timko, 491 Pa. 32, 39, 417 A.2d 620, 623 (1980); Commonwealth v. Zock, 308 Pa.Superior Ct. 89, 94, 454 A.2d 35, 37 (1982); Commonwealth v. Mazzella, 231 Pa.Superior Ct. 247, 250, 331 A.2d 784, 785 (1974). “[T]he Commonwealth must present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent, ..., and that the exigency was in no way attributable to the decision by the police to forego seeking a warrant.” Commonwealth v. Davis, 270 Pa.Superior Ct. 202, 206, 411 A.2d 250, 252 (1979).

In the instant case, the lower court made the following conclusions of law at the suppression hearing:

I make the following conclusions of law: prior to entering the house Agent Bordeleau had abundant probable cause to believe that a felony had reasonably been committed minutes before within the house and that the perpetrator would be inside.
Number two, prior to entering the house Agent Borde-leau had abundant probable cause to believe that contraband and evidence to the crime was in fact located at the house at 1120 [sic] Tennis Avenue.
Number three, those facts within the knowledge of the agent were sufficient to warrant a person of reasonable caution to believe their existence.
Number four, no search warrant or arrest warrant was obtained.
Number five, the law recognizes that certain situations exist reflecting practical compromises between the interest of the state and in effective law enforcement and the privileges of its citizens.
Number six, the requirement for a search warrant is excused or [sic] exigent circumstances exist.
Number seven, exigent circumstances did exist when the need for prompt police action is imperative either because the evidence sought to be seized is likely to be destroyed or likely to be secreted from investigators.
Number eight, another exigent circumstance is because an officer must protect himself from possible danger to his person by checking for weapons.
Number nine, exception to this warrantless search also arises when the warrantless seizure does not appear to be significant invasion of the defendant’s reasonable expectation of privacy.
Number ten, although an [sic] ordinary circumstance there may not be a warrantless arrest of the defendant in his own house, nonetheless this rule is not binding in situations where exigent circumstances exist as I find that they do here, and, therefore, the motion to suppress is denied and the Commonwealth may use the money which was seized and which is the only thing which was seized in evidence at trial is relevant [sic].

(N.T. Suppression Hearing, March 16, 1981, at 167-69).

We initially agree with the lower court that the state agents had probable cause to believe that a felony had been committed minutes before within appellant’s house, that the perpetrator would be inside, and that contraband and evidence of the crime would also be located in the residence at 1130 Tennis Avenue. After negotiating the drug sale, Christopher told Baker that they would have to go and get the drugs from his source. The agents followed Baker and Christopher to the vicinity of appellant’s home. Baker, an informant who had been found reliable on previous occasions, confirmed that Christopher entered appellant’s residence with $7,500 in marked currency and emerged with a bag containing methamphetamine. When the car was stopped, the agents found only $3,500 of the marked currency and seven ounces of methamphetamine on the front seat. Under these circumstances, the agents could reasonably believe that $7,500 of their marked currency and the drug supplier were inside the house located at 1130 Tennis Avenue.

We disagree, however, with the lower court’s conclusion that exigent circumstances existed which justified the failure of the agents to obtain a search and/or arrest warrant based upon probable cause prior to entering appellant’s home. If the agents had not approached the house but had maintained their surveillance until a warrant was obtained, there is no reason why the evidence sought to be seized would have been destroyed because the occupants of the house were unaware of the police surveillance. There is no evidence in the record to show that the occupants of the house had been tipped off or became suspicious after Christopher, a familiar family acquaintance, visited the home and spoke with appellant. We also find it unlikely that anyone would destroy $7,500 (or $6,300) in cash if he did not know that the bills were marked. Additionally, the agents had no reason to believe that the occupants of the house were armed or were threatening anyone because the crime involved was not a violent one and there had been no indication of danger. The police could have kept the residence under covert surveillance in relative safety until a warrant was obtained. Balanced against this absence of exigent circumstances was the significant intrusion into appellant’s very legitimate expectation of privacy in his own home. Accordingly, we believe that, under the circumstances of this case, the agents should have secured a search warrant before they entered appellant’s home in order to retrieve their marked currency. We hold that, in failing to do so, the law officers violated appellant’s Fourth Amendment right to be free from unreasonable searches and seizures.

We find those cases in which this Court has found that exigent circumstances existed distinguishable. For example, in Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978), the police impounded the defendant’s car in Philadelphia and transported it to Bucks County prior to the issuance of a search warrant. We found this procedure justified because (1) the vehicle was highly mobile and (2) the expectation of privacy in one’s automobile is “significantly less than that relating to one’s home or office.” Id., 480 Pa. at 103, 389 A.2d at 106 (emphasis in original). In Commonwealth v. Hinkson, 315 Pa.Superior Ct. 23, 461 A.2d 616 (1983), the police received a report that a truck was struck by two gun shots, with one shot injuring the driver, as it passed by the defendant’s residence and that witnesses heard five shots fired. The police also learned that the defendant had a reputation for violence toward passing motorists (e.g., shooting at snowmobiles, threatening motorcyclists with an axe, and swinging a snowplow at a snowmobile). They went to the defendant’s residence and, over the P.A. system, requested the defendant to come out. After the defendant came out and was taken away, a trooper knocked on the door and was admitted by the defendant’s wife. Upon the trooper’s asking if there were any guns in the house, the defendant’s 15-year-old son showed the trooper through several rooms, including the defendant’s bedroom, from which the trooper seized various guns and bullets. This Court, in holding that exigent circumstances justified the warrantless search, found that (1) because there were three unaccounted-for shots, the police reasonably concluded that someone in the house could have been held hostage or hurt, and (2) because the police were not certain who fired the shots, to delay action while a search warrant was obtained would have unduly risked the lives of the public and the police. In Commonwealth v. Montgomery, 246 Pa.Superior Ct. 371, 371 A.2d 885 (1977), the police, investigating an armed robbery which had just taken place, received information that the perpetrators were inside premises located about a block away. Fifteen minutes later, police, without a warrant, entered the premises and arrested the defendant. We held that “exigent circumstances” and “hot pursuit” justified the warrantless entry and arrest. Finally, in Commonwealth v. Phillips, 244 Pa.Superior Ct. 42, 366 A.2d 306 (1976) (en banc), we found a warrantless search of a house reasonable on the following facts: A reliable informant told police that the defendants were in the process of cutting and packaging a substantial quantity of herion at a house and that the defendants intended to leave the house within twenty minutes. After several unsuccessful attempts to locate a magistrate to get a warrant, the police went to the house and surrounded it. Several people congregated near the officers “making a lot of noise.” The police knocked several times and identified themselves. When the owner opened the door, the police observed three men sitting at the dining room table which was laden with heroin and various cutting and packaging paraphernalia. The defendants saw the officers and attempted to escape whereupon the police entered and arrested the three men.

It is clear that the exigency which existed in each of the above-discussed cases is absent from the instant case. Here, there was no immediate threat of danger to the public or to police, no reason to believe that the occupants of the house at 1130 Tennis Avenue were armed, no “hot pursuit”, no attempts to secure a warrant, and no time pressures.

Instead, we find Commonwealth v. Anderson, 272 Pa.Superior Ct. 167, 414 A.2d 1060 (1979), more analogous. There, police detectives, without an arrest or search warrant, went to the defendant’s residence after receiving information from witnesses to a stabbing death that the defendant was the perpetrator. They identified themselves to the defendant’s stepfather and told him that they were searching for the defendant in connection with a murder. The stepfather directed the police to a second floor bedroom whereupon the police looked under the defendant’s mattress and found a knife. Under these circumstances, this Court held that the knife should have been suppressed because it had been seized in an invalid warrantless search of the defendant’s bedroom. We reasoned that the stepfather’s consent had been limited to a search for the defendant and did not extend to a general search for weapons. We also concluded that there was no indication from the record whereby the police might reasonably have believed that they were confronted with an emergency in which the delay necessary to obtain a warrant would have threatened the destruction of evidence. In responding to the argument that the stepfather might have removed the weapon, we stated that the mere presence of other persons does not justify an inference that evidence will be destroyed or removed and that one officer could have remained to guard the premises while the others obtained a search warrant. Similarly, here, the residence could have been watched while a warrant was obtained, and there is no indication in the record that an emergency situation existed whereby the $7,500 would have been destroyed if the agents had delayed entry into appellant’s home until a search warrant was secured.

Having found that the warrantless search and seizure in the instant case was not justified by the presence of exigent circumstances and, was therefore illegal, we hold that the evidence seized in violation of appellant’s constitutional rights should have been suppressed by the court below. See Commonwealth v. Johnson, 474 Pa. 512, 520, 379 A.2d 72, 75 (1977) (“Evidence obtained in violation of an individual’s right to be free from unreasonable searches and seizures cannot be used against him at trial.”).

Accordingly, we must vacate appellant’s judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is not retained.

MONTEMURO, J., files a dissenting statement.

MONTEMURO, Judge,

dissenting:

I respectfully Dissent and would affirm on the Opinion of the trial judge, the Honorable Kenneth G. Biehn.

      . The discrepancy between the $7,500 given to Christopher and the $6,300 found in the briefcase is not explained in the record.

      . Because of our disposition of this case, we need not address appellant’s remaining contentions.


text:
    487 A.2d 943
    COMMONWEALTH NATIONAL BANK v. Hans BOETZELEN and Ernst A. Boetzelen, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed Jan. 25, 1985.

      Stephen M. Greecher, Jr., Harrisburg, for appellants.
    Daniel E. Shoemaker, York, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   HESTER, Judge:

This action involves a motion to strike a judgment entered against appellants Hans and Ernst Boetzelen. The judgment was based upon a Guaranty Agreement containing a warrant of attorney. It is from the denial of appellants’ motion that this appeal ensued.

Appellants are the President and Vice-President respectively of Ernie Fence Supply Company. On January 22, 1971, appellants, in their capacities as corporate officers, signed a note for $46,788.48 with Commonwealth National Bank, appellee herein. In September, 1971, at appellee’s request, appellants signed a Guaranty Agreement, the subject of the within appeal.

The Guaranty Agreement was recorded in the office of the Prothonotary of York County against appellants individually on October 1, 1971. Although the loan at that time was not in default, judgment was entered for the face amount of the Agreement. Immediately after appellants discovered that judgment had been entered against them, they filed a motion to strike. The lower court denied said motion on July 13, 1983.

Appellants raise two arguments on appeal. First, they contend that the lower court erred in refusing to strike the judgment entered against them as individuals when they signed the Agreement in their corporate capacities. Second, they aver that it is impossible to ascertain from the face of the Agreement whether appellants were in default on the amount actually owed. Therefore, the mere filing of the Agreement without more was improper, and the judgment must be stricken.

Initially, we note that a motion to strike a judgment is a common law proceeding and operates as a demurrer to the record. Township of Middletown v. Fried & Gerber, 308 Pa.Super. 161, 164, 454 A.2d 71, 72 (1982). Unless a fatal defect appears on the face of the record, a motion to strike a judgment will not be granted. Maiorana v. Farmers & Merchants Bank, 319 Pa.Super. 338, 466 A.2d 188 (1983). Consequently, matters dehors the record will not be considered. Bethlehem Steel Corp. v. Tri-State Industries, Inc., 290 Pa.Super. 461, 434 A.2d 1236 (1981). See also DeFeo v. MacIntyre, 265 Pa.Super. 95, 401 A.2d 818 (1979).

So viewed, the record reveals the following. The Guaranty Agreement states in relevant part:

WHEREAS, Ernie Fence Supply Company (hereinafter called Borrower), has applied to the Commonwealth National Bank, York, Pennsylvania, for a loan of an amount not to exceed $46,788.48, and
WHEREAS, the Commonwealth National Bank is unwilling to make said loan and any renewal thereof without this guaranty.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that to induce the said bank to extend credit to make advances to the Borrower in any amount or amounts not to exceed $46,788.48, and in consideration of the sum of ONE DOLLAR ($1.00) the receipt whereof is hereby acknowledged, the undersigned, as surety, hereby absolutely and unconditionally guarantees payment when due, and at all times thereafter of any and all existing and future indebtedness and liability of every kind, nature and character ... from the Borrower to the Bank____

The Agreement also contains a warrant of attorney clause which provides:

The undersigned hereby authorizes and empowers any prothonotary, clerk or attorney of any court of record to appear for and confess judgment against the undersigned in favor of the Bank, its successors or assigns, for any sum or sums of money which may be due hereunder...

The Agreement was signed by Hans Boetzelen and Ernst A. Boetzelen. Below their signatures were typed their names and the titles “President” and “Vice-President” respectively. The Guaranty Agreement contained no language indicating that it was being signed on behalf of the business entity, nor was the business name above or below the signature lines.

Having scrutinized the Guaranty Agreement, we must agree with the lower court’s finding that appellants are individually liable thereon. “A guaranty is a promise to pay the debt of another when the creditor is unable, after due prosecution, to collect the amount owed by the debtor.” Atlanta Corp. v. Ohio Valley Provision Co., 489 Pa. 389, 394, 414 A.2d 123, 126 (1980). When the bank required a guaranty in a transaction, its obvious purpose was to avoid the risk of default in payment. The very language of the Agreement indicates that the “undersigned” were acting as sureties guaranteeing payment of the loan. It is beyond peradventure that the bank, which refused to extend credit to Ernie Finance Supply Company, would likewise not be satisfied with a Guaranty Agreement signed on behalf of the corporation. The face of the Agreement supports the conclusion that appellants signed as individuals, and we will not disturb that finding.

Appellants rely upon Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977) for support. Therein, we opened a judgment entered against Cairns individually when he had signed a Guaranty Agreement in his capacity as corporate president. We held that the language of the Guaranty Agreement was too indirect and general to demonstrate that Cairns had authorized confession of judgment against himself as an individual.

However, that case is factually dissimilar from the case at bar. Therein, the confession of judgment was not contained in the Guaranty Agreement, which Cairns admittedly signed as an individual. Rather, the warrant of attorney was contained in the note which Cairns signed on behalf of his corporation. Thus, we determined that Cairns’ personal signature on the Guaranty Agreement did not bear a sufficiently direct relationship to the warrant of attorney clause in the note to demonstrate that he accepted the entry of confessed judgment against him.

Herein, the warrant of attorney was prominently displayed in the Guaranty Agreement and was located in the last paragraph directly above appellants’ signature. It was not a finely printed clause located on the unsigned reverse side of the agreement. See Frantz Tractor Co. v. Wyoming Valley Nursery, 384 Pa. 213, 120 A.2d 303 (1956); Cutler Corp. v. Latshaw, 374 Pa. 1, 97 A.2d 234 (1953). Nor was it located in a separate document appended to the Guaranty Agreement, as in Solebury. See also Griffin Oil Co. v. Toms, 170 Pa.Super. 203, 85 A.2d 595 (1952). Even construing the warrant of attorney strictly, as we are bound to do, A.B. & F. Contracting Corp. v. Matthews Coal Co., 194 Pa.Super. 271, 166 A.2d 317 (1960), we find the confession of judgment clause, and the entire Guaranty Agreement, to be self-sustaining on the record, and free from any fatal defect.

Appellants’ second argument must also fail. They assert that, since neither the amount actually owed under the Guaranty Agreement nor the occurrence of the event that would constitute default is ascertainable from the Agreement, confession of judgment via filing of the Agreement was improper.

Unquestionably, if a warrant of attorney clause authorizes entry of judgment by confession only after default, a judgment entered prior to default or lacking an averment of default is invalid. Triangle Building Supplies & Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976). “However, absent some restriction as to when a judgment may be entered, a judgment may be entered for a full amount prior to the time it is due and payable.” Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 503, 428 A.2d 156, 159 (1981).

In the instant case, there was no condition, limitation, or restriction of any kind as to when judgment may be entered. Consequently, the authority to issue judgment for the full amount of the loan was immediate and did not warrant that the judgment be stricken. That is not to say that the right of execution was immediate. Execution cannot issue until default. Id., quoting Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau, 153 Pa. 488, 26 A. 220 (1893). As the court in Integrity observed:

the enforcement of satisfaction, by execution or otherwise, is a matter to be governed by the rights and equities of the parties, and comes within the jurisdiction of the Court.

153 Pa. at 491-492, 26 A. at 220. Notwithstanding the issue of execution, appellee was within its rights to enter judgment against appellants. We therefore affirm the Order of the lower court.

Order affirmed.

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


author: PER CURIAM: HESTER, Judge,

text:
    487 A.2d 946
    COMMONWEALTH of Pennsylvania v. John William TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 28, 1984.
    Filed Jan. 25, 1985.

      Ronald L. Chicka, Greensburg, for appellant.
    John W. Peck, II, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before JOHNSON, CERCONE and HESTER, JJ.
   PER CURIAM:

Appellant, John Taylor, underwent trial in February 1982 on charges of simple assault and rape. The jury could not reach a verdict and a mistrial was declared. Prior to retrial, a written motion was presented, seeking permission to introduce evidence of the rape victim’s past conduct. The motion was refused, appellant was again tried before a jury and found guilty on both charges. In early 1983, he was sentenced to a term of imprisonment of two to four years on the convictions.

We have reviewed both the written motion and the notes of trial testimony. Appellant sought unsuccessfully to introduce evidence as to past consensual sexual conduct between the victim and the defendant which, when coupled with appellant’s claimed reluctance to spend any time with the victim on the night in question, would suggest bias leading to the fabrication of the charges. Appellant was also prohibited from questioning the victim as to whether sperm found in the victim’s cervix on the night of the alleged incident could not have been donated by the victim’s boyfriend, in whose company the victim had been earlier that evening.

We conclude that appellant should have been permitted to pursue questioning along both of these lines of inquiry, in spite of 18 Pa.C.S. § 3104, the Pennsylvania Rape Shield Law.

In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), our supreme court held that the Rape Shield Law does not preclude a defendant from explaining the presence of semen and sperm in a victim’s body as an alternative account of the events in question and as part of the defendant’s right to defend by presenting a denial of the prosecution’s case. More recently, our court has held that the Rape Shield Law may not be used to exclude relevant evidence showing witness’ bias or attacking credibility. Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985).

The trial court relied on our earlier case of Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980), and properly believed this case controlled thereby. We now conclude that appellant’s contentions have merit and that he is entitled to a new trial consistent with Majorana and Black, supra.

Judgment of sentence is reversed and new trial granted. Jurisdiction is relinquished.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent.

I would affirm on the well-reasoned opinion of Judge Loughran of the trial court.