author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    592 A.2d 77
    RICHARDSON BRANDS, INC., Appellee, v. PENNSYLVANIA DUTCH CO., INC., Lincoln A. Warrell, Wallace Candies, Inc. and Holly Investment Co. Appeal of PENNSYLVANIA DUTCH CO., INC. and Wallace Candies, Inc.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 3, 1991.

      Daniel J. Dugan, Philadelphia, for appellants.
    Gregory F. Cirillo, Philadelphia, for appellee.

      Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge:

Pennsylvania Dutch Co., Inc., and Wallace Candies, Inc. (PA Dutch & Wallace), appeal from an order transferring an action in the Cumberland County Court of Common Pleas to the Philadelphia County Court of Common Pleas, and coordinating that action with an action previously filed in the Philadelphia Court. The Philadelphia Court acted pursuant to new Pa.R.Civ.P. 213.1, holding that the actions had a common question of law or fact which predominated.

A brief procedural history is essential to our disposition of this case. Richardson Brands, Inc. (Richardson), filed an action in assumpsit in Philadelphia County; PA Dutch & Wallace were among the named defendants in that action. PA Dutch & Wallace filed preliminary objections in the Philadelphia action which were denied. No further action was taken in the Philadelphia proceeding until the motion for transfer and coordination was filed. •

Immediately after the denial of their preliminary objections in the Philadelphia proceeding, PA Dutch & Wallace brought suit against Richardson in Cumberland County alleging breach of the same contract which is the subject of the Philadelphia proceeding. Richardson moved for a stay due to the pending Philadelphia action; said motion was denied. In denying the stay, the Cumberland County Court held that, while the same contract was at issue in both actions, the issues were severable as the Philadelphia action was based on an alleged breach of a covenant not to compete while the Cumberland action alleged breach due to a failure to make royalty payments. (Cumberland Court opinion at 4-5.) Upon refusal of the stay, Richardson filed the claims which were the basis of the Philadelphia action, as counterclaims in the Cumberland action. The Cumberland action proceeded through discovery and was listed for trial.

Richardson then filed a motion in the Philadelphia Court pursuant to Pa.R.Civ.P. 213.1 to have the Cumberland action stayed, transferred, and coordinated to Philadelphia County. The Philadelphia Court granted the motion and indicated its belief that the order was interlocutory and unappealable.

PA Dutch & Wallace appealed the Philadelphia Court order granting the stay and transfer. Richardson moved to quash, alleging that the order at issue is interlocutory. PA Dutch & Wallace moved to dissolve the stay. This Court, per curiam, denied both motions and set the case for advanced scheduling.

PA Dutch & Wallace filed their brief relying on Pa.R.A.P. 311(a)(4) & (c) as establishing jurisdiction. Those provisions provide an appeal as of right from interlocutory orders granting injunctions and changing venue in civil matters. PA Dutch & Wallace make no argument in their brief as to whether the order at issue is covered by Rule 311 beyond the bald assertion that the rule applies. Appellants’ brief does note the existence of the jurisdictional dispute and states, “Appellants are responding separately to that Motion [to quash due to lack of jurisdiction] and show that this Court does, in fact, have jurisdiction to hear this appeal.” (Appellants’ brief at 1, fn. 1.)

Our initial inquiry, as in all cases, is a determination of whether this case is properly before this Court. The trial court opined that this order was not appealable as it was interlocutory. (Trial court opinion at 1-2.) The determination that an order is interlocutory rather than final, however, does not end our inquiry. Certain interlocutory orders are appealable as of right. See, Pa.R.A.P. 311, 42 Pa.C.S.A. (Purdon’s Supp.1990). Our analysis turns to the provisions of that rule.

PA Dutch & Wallace rely upon Pa.R.A.P. 311(a)(4) to sustain jurisdiction of this appeal. That section provides:

Interlocutory Appeals as of Right
(a) General Rule. Except as otherwise prescribed by general rule, an' appeal may be taken as of right from:
(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions, except for injunctions pursuant to Sections 401(c) and 403(a) of the Divorce Code

The order at issue does stay the Cumberland action. A stay is a type of injunction. BLACK’S LAW DICTIONARY, 5th Ed. p. 1267. As such, the order would appear to be appeal-able under Pa.R.A.P. 311(a)(4). This Court, however, has held that an order refusing to grant a stay is not an order denying an injunction appealable as of right under Pa. R.A.P. 311(a)(4). Grimme Combustion, Inc. v. Mergentime Corp., 385 Pa.Super. 260, 560 A.2d 793 (1989). We see no basis for holding that an order granting a stay is an injunction appealable under the rule when an order denying a stay is not. Accordingly, Rule 311(a)(4) does not support jurisdiction in this case.

PA Dutch & Wallace also assert that PA R.A.P. 311(c) sustains the Court’s jurisdiction of this appeal. That section reads as follows:

Interlocutory Appeals as of Right
(c) Changes of Venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.

The order at issue clearly transfers the proceedings in the Cumberland Court to the Philadelphia Court. The transfer contemplated under Rule 213.1 is similar to changes of venue under Pa.R.Civ.P. 1006. See, Pa.R.Civ.P. 213.1, Explanatory Comment—1990 (Purdon’s Supp.1990). Changes of venue under Rule 1006 are appealable under Pa.R.A.P. 311(c). Vogel v. National R.R. Passenger Corp., 370 Pa.Super. 315, 536 A.2d 422 (1988). Richardson argues that such orders are appealable only when a court transfers a case out of its jurisdiction due to improper venue; orders sustaining venue are not appealable as of right. (Appellee’s brief at 26, citing, United Erectors v. Pratt & Lambert Corp., 338 Pa.Super. 577, 488 A.2d 43 (1985) and Centerre Bank of Kansas City, N.A. v. Arthur Young & Co., 348 Pa.Super. 365, 502 A.2d 251 (1985).) While this may be a correct statement of the law, we do not agree that it is applicable here. The procedure contemplated by Rule 213.1 allows for a change of venue; however, rather than transferring an action out of its jurisdiction, a court is empowered to pull an existing action into its jurisdiction for coordination with another ongoing action. Thus, the cases cited by appellee are not truly on point. Our Supreme Court has made it clear that “311(c) permits appeals to be taken as of right from orders changing venue.” Okkerse v. Bowe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989) (emphasis in original). The question then is: does this order change venue or sustain venue? We hold that it does both. In transferring the Cumberland action to Philadelphia, it sustains the venue of the Philadelphia action and changes the venue of the Cumberland action. Such a transfer is within the parameters of Rule 311(c).

Appellee also argues on policy grounds that allowing appeals of 213.1 orders will defeat the purpose of the rule by furthering burdening the court system rather than streamlining litigation. This may be true. We, however, may not refuse to hear an appeal properly before us merely because litigation is thereby prolonged. We therefore hold that orders transferring and consolidating cases under Pa. R.Civ.P. 213.1 are interlocutory orders appealable as of right under Pa.R.A.P. 311(c).

Having sustained jurisdiction because of the similarity of the order sub judice to a pure change of venue order, we find it appropriate to adopt the standard of review applicable to change of venue cases. Thus, orders transferring and coordinating cases pursuant to Pa.R.Civ.P. 213.1 will be reviewed only for abuse of discretion by the trial judge ordering the transfer. See, Vogel, supra, 370 Pa.Super. at 318-19, 536 A.2d at 424, and cases cited therein for the proposition that Pa.R.Civ.P. 1006(d) change of venue orders are reviewable only for abuse of discretion. Where the record provides a sufficient basis to justify a transfer, no abuse of discretion is shown. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 83-84, 461 A.2d 805, 807 (1983) (McEwen, J. concurring).

PA Dutch & Wallace argue that the Philadelphia Court erred in its application of Rule 213.1 to the cases sub judice. That rule provides as follows:

(b) In determining whether to order coordination and which location is appropriate for the coordinated proceedings, the court shall consider, among other matters:
(1) whether the common question of fact or law is predominating and significant to the litigation;
(2) the convenience of the parties, witnesses and counsel;
(3) whether coordination will result in an unreasonable delay or expense to a party or otherwise prejudice a party in an action which would be subject to coordination;
(4) the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions;
(5) the disadvantages of duplicative and inconsistent rulings, orders or judgements;
(6) the likelihood of settlement of the actions without further litigation should coordination be denied.

(Pa.R.Civ.P. 213.1, 42 Pa.C.S.A. (Purdon’s Supp.1990).) PA Dutch & Wallace assert that the transfer was an abuse of discretion in the following manner: (1) the Cumberland Court has already decided that there are no predominating common questions of law or fact, as the two suits rely upon different sections of the contract; (2) the majority of the parties, witnesses, and counsel reside in Cumberland County; (3) as the Cumberland action is ready to go to trial, transfer to Philadelphia and the resultant delay will be unreasonable; (4) as the Cumberland action has completed its pretrial phase, it is more efficient to proceed there; (5) the order is inconsistent with the Cumberland Court’s order denying Richardson’s motion for a stay of the Cumberland action; and (6) settlement was proceeding as the Cumberland action neared trial and has stalled since the grant of the transfer and coordination order.

Richardson responds to appellants’ arguments by stating that these cases arose out of the same transaction and so are within Rule 213.1. Richardson further contends that PA Dutch & Wallace have Philadelphia counsel and that the transaction was executed in Philadelphia; it is claimed that these facts indicate the Philadelphia forum is more convenient. Finally, Richardson claims that it is PA Dutch & Wallace who have created judicial inefficiency and duplication of effort by filing the Cumberland action instead of litigating all claims in the Philadelphia Court.

The Philadelphia Court explained the ordered transfer and coordination as follows:

1. discovery was incomplete in the Cumberland County action;
2. the Cumberland County Court refused to remove the case from the trial list;
3. the two cases involve the same set of operative facts; and
4. under Pa.R.C.P. 213.1, Plaintiff [Richardson] may move to transfer and consolidate and thus sidetrack the apparent “race to judgment” in Cumberland County.

(Philadelphia Court opinion at 3.)

We will address the points raised by PA Dutch & Wallace in seriatim. We do not agree that the Cumberland Court had previously decided the “common factual questions predominating” issue against Richardson. It is true that, had the Cumberland Court decided that there were no common questions of law or fact, Richardson would not be able to relitigate that issue in the Philadelphia Court because of collateral estoppel principles. See, Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion) (Collateral estoppel is issue preclusion and seeks to prevent relitigation of finally litigated issue in subsequent proceeding between same parties, whether same evidence or different evidence is to be introduced.). Nevertheless, this precise issue was not decided by the Cumberland Court. Contrary to appellants’ assertion, the Cumberland Court refused to grant Richardson’s motion for a stay because the issues in the two actions were severable, not because common questions did not exist or predominate:

... the issue in the Philadelphia lawsuit has to do with a violation of a covenant not to compete; a matter quite distinct from the matters (royalty payments) sought to be redressed in this case____ the contractual provision sued upon by the plaintiffs in the two different counties are separate and distinct. To date, we are satisfied that the remedies, relief and damages sought have nothing to do with each other.

(Cumberland Court opinion at 4-5.) The Cumberland Court opined that the issues, relief sought, remedies, and damages were different, not that common questions of fact were not present. As the precise question as to the existence and predominance of common questions had not been previously litigated, Richardson was not precluded from seeking a transfer in the Philadelphia Court.

PA Dutch & Wallace contend that the majority of the parties, witnesses, and counsel are located in Cumberland County. We do not agree. This contract was executed in Philadelphia. Both PA Dutch & Wallace are represented by Philadelphia counsel in the Philadelphia action. Richardson chose the Philadelphia venue when it filed the initial complaint in these sibling proceedings. The balance of the location of the relevant entities is not so in favor of Cumberland County to require reversal of this order.

PA Dutch & Wallace also contend that the Cumberland action is ready for trial. This is not borne out by the record. A review of the docket entries of the Cumberland action indicates that a substantial dispute as to the state of discovery in that case still exists. We agree that discovery is more advanced in the Cumberland action; however, we fail to see how that impacts the transfer to Philadelphia. The product of that discovery is as susceptible of use in Philadelphia as in Cumberland County. The same argument disposes of appellants’ contention that, as the pretrial phase of the Cumberland action is complete, it is more efficient to there. The Cumberland action is now incorporated into the Philadelphia action. All the work done in Cumberland County now benefits the Philadelphia case.

Nor are we convinced that the order at issue is inconsistent with the previous Cumberland Court order refusing Richardson’s motion for a stay due to lis pendens. True, the Cumberland action has been stayed. Nonetheless, that action has been transferred and is now coordinated with the Philadelphia case. The Cumberland action has not been placed in a state of judicial limbo, it has been transferred. As to the final argument of PA Dutch & Wallace, the transfer of the case to Philadelphia in no way precludes settlement negotiations; appellants’ claim that negotiations have stalled since the transfer is not a matter of record in this case.

It is beyond dispute that PA Dutch & Wallace could have raised their royalty claims as counterclaims in the Philadelphia action brought by Richardson pursuant to Pa.R.Civ.P. 1031. This is truly a matter that would be more efficiently litigated in one forum. Further, PA Dutch & Wallace were also free to petition the Philadelphia Court for a transfer to Cumberland County on forum non conveniens grounds; this they did not do. This case clearly presents “the unseemly spectacle of a race to judgement in the courts of two counties of this Commonwealth.” Norristown Auto Co., Inc. v. Hand, 386 Pa.Super. 269, 277, 562 A.2d 902, 905 (1988). Rule 213.1 was drafted to address this exact situation. See, Pa.R.Civ.P. 213.1, 42 Pa.C.S.A., Explanatory Comments—1990 (Purdon’s Supp.1990). In summary, there is sufficient support in the record to justify the transfer and consolidation of the Cumberland case with the Philadelphia case. Accordingly, no abuse of discretion has been shown. This Court will not so invade the province of the trial court to substitute our judgment for theirs.

Order affirmed. Case remanded for further proceedings. Jurisdiction relinquished.

WIEAND, J., concurs.

WIEAND, Judge,

concurring.

I concur in the result. I write separately to state my disagreement with the majority’s dictum that an order staying an action in another county is not immediately appealable under Pa.R.A.P. 311(a)(4). Such an order has the effect of enjoining a party from proceeding with an action pending in another county and is immediately appeal-able as an injunction order. To hold otherwise is to leave the enjoined party with no means of correcting an erroneous stay order and prevents him or her from pursuing a proper action. In this respect, it is vastly different than an order which refuses to grant a stay of an action pending in another county, where a party can, in any event, assert his or her contentions in the pending action. Thus, even if Grimme Combustion, Inc. v. Mergentime Corp., 385 Pa.Super. 260, 560 A.2d 793 (1989), were correctly decided, it would not bar an immediate appeal from an order which, in fact, prevented a party from proceeding further with an action pending in another county.

However, because the majority holds the present order appealable under Pa.R.A.P. 311(c)—a decision with which I agree—and because I would hold that the trial court’s order was not an abuse of discretion, I concur in the decision to affirm.

      . Appellants claim to have attempted to file a response to Richardson’s motion to quash which addresses the jurisdictional issue. (Appellants’ answer to appellee’s motion to dismiss at 2, 4.) The Prothonotary allegedly refused to accept this filing, as no motion to quash was pending before this Court. (Id.) This is true, as the per curiam order setting this case for advanced scheduling clearly states that both the motion to quash and the motion to dissolve the stay were denied without prejudice to raise those issues in briefs and at argument. Therefore, we will address the jurisdictional question as it is presented by appellants’ jurisdictional statement.

      . PA Dutch & Wallace argue that Richardson has waived its argument that jurisdiction is lacking because it did not renew the motion to quash. We find this somewhat puzzling; this Court’s per curiam order denying the motion to quash specifically states:
      ... Appellee’s Motion to Quash are DENIED WITHOUT PREJUDICE to the parties’ ability to raise the issues contained therein before a panel of this court (emphasis in original).

        Richardson’s brief contains thorough argument of the jurisdictional question. Further, it is beyond dispute that this Court may raise jurisdictional issues sua sponte. Accordingly, we find no waiver of the jurisdictional question here.

      . PA Dutch & Wallace does not contest that the order at issue is interlocutory. (Appellants’ reply brief at 2, n. 3.)

      . Neither PA Dutch & Wallace’s original brief nor their reply brief refers to or attempts to distinguish Grimme. At no time have appellants presented any argument that Rule 311(a)(4) sustains jurisdiction beyond their bald assertion that the Rule applies. The Concurring Statement asserts that Grimme is distinguishable as it holds interlocutory an order refusing a stay while here we examine the grant of a stay. We cannot agree. As cited above in the body of this opinion, Rule 311(a)(4) makes both orders granting injunctions and those refusing injunctions appealable as of right. Thus, the core of the Grimme holding is that a stay is not an injunction within the meaning of the Rule and we are bound by the precedent.

      . We note that all appeals as of right of interlocutory orders prolong litigation to some extent.

      . PA Dutch & Wallace also argue that the Philadelphia Court erred by relying on factors other than those enumerated in the Rule. We reject this argument as clearly fallacious as the Rule itself states that the listed factors may be considered among other factors. See text of rule cited above.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    592 A.2d 83
    Merle B. SUTTON and Alice Sutton, and L. Edward Delos and Beatrice Sutton Delos, Appellees, v. Paul MILLER and Betty J. Miller, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed June 4, 1991.

      Raymond H. Bogaty, Grove City, for appellants.
    Donald P. Graham, Evans City, for appellees.
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

Appeal is taken from a final decree in Equity awarding appellees, through adverse possession, fee simple title to a parcel of land adjoining appellants’ lot. In addition, appellees received mandatory injunctive relief compelling appellants to replace appellees’ fence (previously removed by appellants) at a location where it had remained from 1957-1985. With modification, we affirm.

The relevant facts as found below by the Honorable George Kiester, S.J., specially presiding, are as follows:

Appellees, Edward Delos, et ux., are the current owners of a parcel of land located in Clay Township, Butler County (co-appellees Sutton are the former owners of the Delos lot and are responsible for commencing the instant litigation). Appellants, Paul and Betty Miller, own an adjoining parcel. Without the aid of a survey, sometime between 1953-1957 the Suttons constructed a fence dividing the lots. Comprised of electrified barbed wire and locust and steel posts, the fence was built for the purpose of pasturing cattle on the Sutton property—the fence being within eyesight of the Miller residence. Thereafter, between 1957-1985 the Millers repeatedly verbalized disagreement concerning the propriety of the Sutton fence, as located, as demarcating the true boundary line between the lots. Nevertheless, apart from a letter sent in 1957 by appellants’ attorney expressing the Millers’ dissatisfaction with the location of the fence, and apart from numerous verbal protestations by the Millers, the Millers never initiated legal proceedings to resolve the boundary dispute. In 1985 they did, however, remove the Sutton fence (without the Suttons’ consent) and replace it with another fence located pursuant to a survey conducted by W.J. McGarvey, R.P.E., the differential representing the disputed property herein.

On September 24, 1985, appellees instituted action by filing a Complaint in “Law and Equity” entitled: “Complaint in Civil Action—Action to Quiet Title and Complaint in Equity—Injunction.” The Complaint, after recounting the Millers’ removal of the Sutton fence and construction of a second fence, and after setting forth a claim of adverse possession for 21 years, states at “Count I, Quiet Title”:

That an Action and [sic] ejectment will not lie ... WHEREFORE, showing the above, the Plaintiff prays this Honorable Court to enter a decree as follows:
a. That the title of the Plaintiff in the above described property be adjudicated and decreed valid and indefeasible as against all rights or claims whatsoever ...
b. That the Court decree that the Defendant’s, their heirs, successors, assigns, and all other interested parties are forever barred from asserting any right, title, lien, interest, or claim in the land inconsistent with the ownership of the Plaintiff, unless the Defendants bring an Action and [sic] Ejectment against the Plaintiff within 30 days after the entry of an judgment of this Court, and if no such action is undertaken by the Defendant’s, their heirs, successors, assigns, personal representatives or any other interested parties within the 30 day period, then said Defendant’s ... shall be forever barred from asserting any right, title, interest, claim or lien in the land inconsistent with the interest and claim of the Plaintiffs herein.

Complaint at 7-8. “Under Count II, Injunction”, appellees requested, inter alia, that appellants replace their fence at its original location and remove the fence constructed by appellants in 1985. See id. at 11.

Appellants demurred to and moved to strike off the Complaint submitting (and this was conceded by appellees in their Complaint at 9-11) that they were in possession of the disputed parcel whereby making the action in Quiet Title the improper form of action. See Preliminary Objections at 3. After hearing, appellants’ motions were denied by order of February 19, 1986. The case proceeded to trial and, as already noted, the court entered a final decree in favor of appellees.

Appellants frame two issues for our review:

I. Whether the evidence was sufficient to support appellees’ award of adverse possession;
II. Whether the trial court improperly denied appellants’ preliminary objection in the nature of demurrer to appellees’ action in Quiet Title?

Turning first to the second issue, we find erroneous the lower court’s failure to dismiss pursuant to appellants’ timely preliminary objection in the nature of demurrer. However, as we find the final decree properly sustainable under a alternative form of action—an action in Ejectment—we will sua sponte amend appellees’ pleadings and affirm the decree with modification.

I

The present-day action in Quiet Title is best understood as viewed through the window of its historical development. In time long past, and generally before the turn of the century, a plaintiff’s exclusive remedy to remove a cloud on his or her title was through the filing of the equitable bill quia timet. See generally 13 Std.Pa.Pract.2d, Ejectment and Quieting Title § 159 (1957). Thereafter, during the mid-to-late 1800’s and early 1900’s, the Pennsylvania General Assembly, through statute, supplanted the former practice in equity and created a remedy at law to include all equitable jurisdiction encompassed by the former bill quia timet (plus additional causes of action to settle title to real estate not formerly encompassed by the equitable bill). See generally Pa.R.C.P. 1455(l)-(30) (listing various statutory actions); 3 Goodrich-Amram 2d §§ 1061(b):2—1061(b):4. In 1946, an effort to consolidate the form and procedure followed in these separate statutory actions (which often called for different procedures), yielded Pennsylvania Rules of Civil Procedure 1455 and 1061 et seq. These Rules provided for a new form of action—the action to quiet title. See White v. Young, 409 Pa. 562, 186 A.2d 919, 921 (1963) (purpose of Rules 1061 et seq. was to unify into one procedure all the diverse procedures by which clouds on title were formerly tried); Bruker v. Burgess and Town Council, 376 Pa. 330, 102 A.2d 418, 420 (1954) (“The action to quiet title is a new form of action, created as a consolidation of a large number of independent actions and proceedings, mostly statutory, designed to remove clouds on title____”); see also Kalyvas v. Kalyvas, 371 Pa. 371, 89 A.2d 819 (1952) (“Although the action [under Pa.R.C.P. 1061] is an action at law it embraces all the equitable jurisdiction which was formerly exercisable under a bill quia timet.”); cf. MacKubbin v. Rosedale Memorial Park, Inc., 413 Pa. 637, 198 A.2d 856, 857 (1964) (“the action at law to quiet title does not completely displace general equity jurisdiction”) (emphasis in original).

What must be kept in mind is that Pennsylvania’s Rules of Civil Procedure do not, and cannot, abridge, enlarge or modify substantive rights and jurisdiction established by statute. Hence, the enabling authority for Rules 1455 and 1061, 17 P.S. § 61 (repealed), provided, in pertinent part:

[T]he Supreme Court of Pennsylvania shall have the power to prescribe by general rule the forms of actions, ... pleadings, and motions, and practice and procedure in civil actions at law and in equity ... [p]rovided that such rules shall be consistent with the Constitution of this Commonwealth and shall neither abridge, enlarge or modify the substantive rights of any litigant nor the jurisdiction of any of the said courts, nor affect any statute of limitations.

17 P.S. § 61 (repealed), replaced by, 42 Pa.C.S.A. § 1722(a); Nosal v. Nosal, 410 Pa. 304, 189 A.2d 262 (1963); see also Warehouse Builders and Supply v. Perryman, 215 Pa.Super. 413, 257 A.2d 349, 352 (1969) (Rules of Civil Procedure clearly limited in scope to practice and procedure). As a necessary corollary, the substantive rights and statutory jurisdiction established by the various Acts of Assembly (creating the legal action in Quiet Title) survived consolidation under the Procedural Rules which modified practice and procedure only. See Seven Springs Farm, Inc. v. King, 235 Pa.Super. 450, 344 A.2d 641, 644 (1975) (“The provisions of [the Act of March 8, 1889, see infra note 4,12 P.S. § 1543, giving to plaintiff in possession a cause of action against defendant out of possession by compelling defendant to assert his interest through bringing an action in ejectment] were suspended as to practice and procedure by Pa.R.C.P. 1455[17] and superceded in that respect by Pa.R.C.P. 1061-1066. The substantive requirements of the Act, however, continue to remain in force.”); see also Schimp v. Allaman, 353 Pa.Super. 232, 509 A.2d 422, 423 (1986).

More recently, through the Judiciary Act of 1976, 42 Pa.C.S.A. § 1722, Adoption of administrative and procedural rules, our Assembly has preserved this policy of leaving inviolate the substantive rights and statutory jurisdiction established by 12 P.S. § 1543 (in particular; see infra), repealing 12 P.S. § 1543 only insofar as inconsistent with the general rules proscribed pursuant to 42 Pa. C.S.A. § 1722(b). See Judiciary Act Repealer Act, 42 Pa. C.S.A. § 20001 et seq. (Supp. Act 1978-53, H.B. 825).

Our analysis begins with a recognition of the standard through which an objection in the nature of demurrer is assessed, to-wit: a demurrer is a preliminary objection that the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law. See Packler v. State Employers’ Retirement Board, 470 Pa. 368, 368 A.2d 673 (1977); Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85 (1972); cf. Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983) (burden is on court to identify legal theories underlying complaint). The issue becomes whether plaintiffs, below, set forth a cause of action in Quiet Title under any legal theory.

Plaintiffs pleaded the unavailability of an action in ejectment and, therefore, brought their action under Rules 1061(b)(1) (“to compel an adverse party to commence an action of ejectment”) and 1066(b)(1) (upon granting plaintiff relief pursuant to Rule 1061(b)(1), court “shall order that the defendant be forever barred from asserting any right, lien, title or interest in land inconsistent with the interest or claim of the plaintiff set forth in his complaint, unless the defendant takes such action as the order directs with (30) days thereafter____”) (emphasis added). See Plaintiffs’ prayer for relief set forth ante at 85. A review of the substantive portions of the Act herein relevant, consolidated under Rule 1061 as to form and procedure, reveals that there exists a substantive right of action granted to a plaintiff in possession to compel a defendant out of possession to bring an action in ejectment against the plaintiff.

When a statute creates a cause of action including a designation of who may sue (here, a plaintiff in possession) then a plaintiff’s possession becomes a jurisdictional prerequisite to an action thereunder. See, e.g., Girard Trust Co. v. Dixon, 335 Pa. 253, 6 A.2d 813 (1939) (“The existence of possession on the part of the petitioner at the time of the institution of the proceeding [under 12 P.S. § 1543] is an essential jurisdictional fact”); Hemphill v. Ralston, 278 Pa. 432, 434, 123 A. 459 (1924) (“In each instance [under, inter alia, 12 P.S. § 1543] the proceeding must be instituted by the one in possession, and the finding of this fact is jurisdictional____”); cf. Mildren v. Nye, 240 Pa. 72, 78, 87 A. 607 (1913) (under 12 P.S. § 1545, “there must be possession to give the court its purely statutory jurisdiction ... ”). In fact, the scope of a proceeding brought under Rule 1061(b)(1) is narrow, limited solely to a determination of whether “the Court has jurisdiction under the facts [established by plaintiff’s possession] to compel the Defendant to bring his action [in ejectment].” Schimp v. Allaman, 353 Pa.Super. 232, 509 A.2d 422, 423-24 (1986) (quoting Spangler v. Trogler, 228 Pa. 217, 218, 226, 77 A. 495 (1910) (answering the question of “what are the jurisdictional facts necessary to put the case within the terms of [12 P.S. § 1543] ... first, possession [in] plaintiff ... and, second, a claim of title by the other party out of possession”)); see also Seven Springs Farm, Inc. v. King, 235 Pa.Super. 450, 344 A.2d 641, 644, 643 n. 4 (1975) (“the merits of the dispute, the title and right to possession, are not determined in an action brought under [Rules 1061(b)(1) and 1066] ... [t]he issue is merely who is in possession for purposes of bringing an action in ejectment____”); Hoffman v. Bozitsko, 198 Pa.Super. 553, 182 A.2d 113, 115 (1962).

The case of Buck v. Brunner, 167 Pa.Super. 142, 74 A.2d 528 (1950), is directly on point. There, we affirmed, per curiam, the dismissal of a complaint in Quiet Title:

Plaintiffs’ complaint avers in Paragraph 4, that the defendant ‘erected a fence approximately 20 feet over the line from his property and on the said property of [plaintiff] claiming the said 20 foot strip along the westerly side of said property of [plaintiff] as his own.’ This shows that the possession of the disputed strip of land is in defendant. In such a case the plaintiff must bring an action in ejectment [Mildren v. Nye, 240 Pa. 72, 87 A. 607.] It is only where the plaintiff is in possession of land against which a person not in possession makes claim or asserts the title, that an action to quiet title will lie: Rule[s] 1061 [to 1066] of the Procedural Rules [12 P.S. Appendix].

Id. 167 Pa.Super. at 142, 143, 74 A.2d at 528.

Plaintiffs commenced the instant litigation to prove title in a disputed parcel of land by adverse possession, and, further, to quiet such title as against defendants. The pleadings conclusively established defendants’ possession of the disputed parcel. The lower court, however, denied defendants’ objection as to possession and proceeded to the merits of the action. This was legal error. Since plaintiffs were out of possession, the court not only exceeded the scope of an action brought under Rule 1061(b)(1), see Seven Springs, supra, but, in so doing, enlarged plaintiffs’ substantive rights defined by statute and exceeded the court’s statutory jurisdiction in a proceeding to Quiet Title. See Girard Trust, supra. The demurrer was improperly denied.

Nonetheless, there was available to plaintiffs an alternate form of action upon which similar relief could have been granted—an action in Ejectment—and while the action in Quiet Title should have been dismissed, it should have been dismissed with leave to amend. See Pa.R.C.P. 1033 (“A party, either by filed consent by the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading----”) (emphasis added); see also Harley-Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 442 A.2d 284, 286 (1982) (leave to amend proper “where there is some reasonable possibility that amendment can be accomplished successfully”). Unfortunately, the stage of the proceedings where this might have been possible has long since evanesced. We are left, therefore, with the remaining option of sua sponte amending the pleadings to include an action in Ejectment. Finding no prejudice to appellants’ rights in choosing this route, see Pilotti v. Mobil Oil Corp., 388 Pa.Super. 514, 565 A.2d 1227 (1989), and in recognition of the well-settled principle that amendment is available at any stage of the proceedings, see Taylor v. Kaufhold, 368 Pa. 538, 84 A.2d 347, 351 (1951), “as a nod to formalism, the proper amendment will be considered to be made.” Id.

II

Depending upon with whom present, actual possession of a disputed parcel lies, a claimed title to land by adverse possession is properly instituted in an action to Quiet Title or an action in Ejectment. See, e.g., Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 545 A.2d 926, 928 (1988) (en banc) (ejectment action brought by adverse claimant seeking possession of land allegedly encroached by defendant); Castronuovo v. Sordoni, 357 Pa.Super. 187, 515 A.2d 927 (1986) (quiet title action brought by adverse claimants asserting present possessory interest); Seven Springs, supra (same); see generally 22 Std.Pa.Pract.2d § 120:170 (1984). Ejectment is a possessory action wherein a plaintiff must prove the right to exclusive possession vis-á-vis proof of paramount title. See Doman v. Brogan, 405 Pa.Super. 254, 263, 592 A.2d 104, 108 (1991). The elements of Pennsylvania’s law to prove title through adverse possession are stated in Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949):

It has long been the settled rule of this Commonwealth that one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years: Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 152 A. 682; Johns v. Johns, 244 Pa. 48, 90 A. 535; Boyer v. Lengel, 224 Pa. 357, 73 A. 323. Each of these elements must exist, otherwise the possession will not confer title: Groft v. Weakland, 34 Pa. 304.

Id. 66 A.2d at 829.

Appellants’ argument contra adverse possession distills to the following:

The Miller position is that permissive use no matter how long it may continue cannot be considered adverse, [citation omitted]. If the original possession, as in this case, the original placement of the fence, is permissive, with the understanding that a survey would need to be conducted at some point, the mere passage of time, however long, would not convert this permissive possession into an adverse or hostile one.
The ongoing complaints of Miller, the discussion with all parties concerned, the nature of the land and all of the facts would indicate that the property was not obtained by adverse possession since it was not a hostile taking but rather the fence existed in Miller’s mind until a survey could be obtained to establish the right property line.

Appellants’ Brief at 11-12 (emphasis added).

Recently, the elements of adverse possession have been refined (not redefined) so as to create a presumption that where “all other elements of adverse possession have been established, hostility will be implied, regardless of the subjective state of mind of the trespasser.” Tioga Coal v. Supermarkets Gen. Corp., 519 Pa. 66, 546 A.2d 1, 5 (1988) (“it is inconceivable that if an adverse possessor actually takes possession of land in a manner that is open, notorious, exclusive and continuous, his action will not be hostile to the true owner of the land ...”); see also Schlagel v. Lombardi, 337 Pa.Super. 83, 486 A.2d 491, 494 (1984) (Pennsylvania follows the majority rule in that “a sufficiently notorious possession will always be enough to alert an owner[;] ... hostility is implied if all other elements have been established”) (citing Lyons v. Andrews, 226 Pa.Super. 351, 313 A.2d 313, 316-17 (1973)). Where, however, possession is held under rather than against the record title holder it cannot ripen into title. Upon this belief we have held that where a sufficiently notorious possession exists to alert the “true” owner of an adverse claim, it will then be incumbent upon said owner to establish “permissive” use. See Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912, 914 (1989) (citing cases). Satisfaction of the requisite elements of adverse possession, and the issue of “permissive” use, are questions of fact for, in this instance, the Chancellor and will not be reversed on appeal unless marked by a clear abuse of discretion or an erroneous application of the law. See Sterner v. Freed, 391 Pa.Super. 254, 570 A.2d 1079, 1081 (1990).

Where, as here, appellants concede that plaintiffappellees’ possession was open, notorious, exclusive and continuous, hostility will be implied. See Tioga, supra. At this point, the burden shifts to appellants to prove that use was not hostile, but permissive. See Sterner, 391 Pa.Super. at 260, 570 A.2d at 1082; see also Waltimyer, 383 Pa.Super. at 295-296, 556 A.2d at 914.

Fundamentally, appellants misconceive the test of “permissiveness” (and “hostility”), even though their suggestion that possession cannot be hostile where it is “permissive” is unquestionably sound. To begin, appellants make the bald assertion that placement of the fence was “with the understanding that a survey would need to be conducted at some point.” No such oral understanding or agreement was found by the Chancellor, and correctly so, as this claim is thoroughly belied by the record. Not only was there lacking an acknowledgment by appellees of superior title in appellants, see Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 22 A.2d 70, 72 (1941) (acknowledgment conclusively establishing permissive use), but rather appellees at all times believed ownership to the disputed parcel was in them. Appellees’ claim as to the fence demarcating the proper boundary, despite appellants’ repeated complaints, belies any claimed recognition that they were holding at sufferance to appellants’ rights.

Moreover, we are at pains to understand how appellants can in one breath argue both permissive possession by appellees and, at the same time, argue that appellants have continuously registered complaints concerning appellees’ possession, but to no avail.

Turning to appellants’ argument against a finding of “hostility” because “the fence existed in Miller’s mind until a survey could be obtained to establish the right property line,” we simply note that to the extent the test of hostility focuses on intention, it is with appellees’ intention not appellants’. See Schlagel v. Lombardi, 337 Pa.Super. 83, 486 A.2d 491, 494 (quoting Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174, 177 (1955)) (“While the word ‘hostile’ has been held not to mean ill will or hostility, it does imply the intent to hold title against the record title holder.”); see also Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932).

In sum, today we reaffirm that property rights are defined by law; appellants’ failure to seek legal recourse within the statutory period, see 42 Pa.C.S.A. § 5530, amounts to legal acquiescence in the superiority of appellees’ rights in the parcel. The Chancellor appropriately found “hostility” present, as well as a failure by appellants to prove “permissive” use.

Accordingly, the final decree is affirmed with modification to reflect that appellees, in Ejectment (as amended), have proved superior title to the disputed parcel through adverse possession and are entitled to immediate possession. That portion of the decree awarding mandatory injunctive relief remains unchanged.

Decree affirmed with modification.

TAMILIA, J., concurs- in the result.

      . Consonant with our general aversion for piecemeal litigation, where complainant pleads a cause of action in Quiet Title and, in addition, prays for injunctive relief, a court of Equity properly may resolve both the legal and equitable causes. See, e.g., MacKubbin v. Rosedale Memorial Park, Inc., 413 Pa. 637, 198 A.2d 856, 857 (1964); White v. Young, 409 Pa. 562, 186 A.2d 919, 921-22 (1963). Were this not the rule, two separate actions, one at Law and one in Equity, would be necessary to afford complete relief.

      . Action to Quiet Title
      The following Acts of Assembly are suspended insofar as they apply to the practice and procedure in actions to quiet title ... [listing various Acts (1) to (30)].

      . Conformity to Civil Action. Scope
      (a) Except as otherwise provided in this chapter, the procedure in the action to quiet title from the commencement to the entry of judgment shall be in accordance with the rules relating to a civil action.
      (b) The action may be brought
      (1) to compel an adverse party to commence an action of ejectment;
      (2) where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or determine the validity or discharge or any document, obligation or deed affecting any right, lien title or interest in land;
      (3) to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land; or
      (4) to obtain possession of land at a judicial or tax sale.

      . 12 P.S. § 1543 (repealed insofar as inconsistent with 42 Pa.C.S.A. § 1722(b), see 42 Pa.C.S.A. § 20001 et seq.) states, in pertinent part:
      Whenever any person, not being in possession thereof, shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof, claiming title to the same, to make application to the court of common pleas of the proper county, whereupon a rule shall be granted upon said person not in possession, to bring his or her action in ejectment____

      . We do not here intimate that possession is a jurisdictional prerequisite in all actions instituted under Rule 1061. Where a plaintiff is out of possession, but where an action in ejectment does not lie, an action under Rule 1061(b)(2) has been found proper. See, e.g., Grossman v. Hill, 384 Pa. 590, 122 A.2d 69, 71 (1956) (proceeding under Rule 1061(b)(2) where plaintiffs out of possession are mere equitable owners without right to immediate exclusive possession); Brennan v. Shore Brothers, Inc., 380 Pa. 283, 110 A.2d 401, 402-03 (1955) (proceeding under Rules 1061(b)(2)-(3) where plaintiff-lessor is out of possession and presently maintains no right to immediate possession); see generally 3 Goodrich-Amram 2d § 1061(b):l (compilation of various statutory remedies consolidated under Rules 1061(b)(2)-(3) (1976)).

      . In fact, Judge Kiester in a Supplemental Opinion found the following: "[t]he facts establish that Plaintiffs could have properly initiated [the] action by the Ejectment procedure claiming that Defendants evicted him from the land by erecting the fence.” Trial Court Supp. Opinion at 3.

      . Equitable subject matter jurisdiction remains proper. See supra note 1.

      . With whom record title to the disputed parcel rested was not litigated. We note, however, that for purposes of an action involving a claim of adverse possession, an alleged adverse possessor “always claims in derogation of the right of the true owner, admitting that the legal title is in another." 3 Am.Jur.2d, Adverse Possession § 9 (1986).

      . Appellants concede, therefore, the "substantiality” of the Sutton fence prior to removal. See Dimura v. Williams, 446 Pa. 316, 286 A.2d 370, 371 (1972) (citing Robin v. Brown, 308 Pa. 123, 162 A. 161, 163 (1932)) (fence must be substantial to support claim of adverse possession of lands enclosed thereby).


author:
DEL SOLE, Judge:
      CERCONE, Judge,

text:
    592 A.2d 91
    COMMONWEALTH of Pennsylvania v. Charles KAUFFMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1990.
    Filed June 5, 1991.
    Petition for Allowance of Appeal Denied Nov. 18, 1991.

      Kent D. Watkins, St. Clair, for appellant.
    Claude A.L. Shields, Dist. Atty., Pottsville, for Com.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This is an appeal by Charles Kauffman from convictions for first degree murder and receiving stolen property. The murder charge was in connection with the strangulation death of eleven year old Timmy Freed. After the jury rendered its guilty verdicts, a sentencing hearing was held on the first degree murder conviction, on May 20, 1989. The jury was not able to reach agreement on whether to sentence Appellant to life imprisonment or to death for this crime. Therefore, the lower court, in accordance with Rule 354, et seq., Pa.R.Crim.P., 42 Pa.C.S., immediately imposed a life sentence.

Unlike the normal post-verdict procedures, where sentence is imposed following consideration of the defendant’s post-verdict motions and the filing of a pre-sentence investígation report, here, post-verdict motions must be filed within ten days after the imposition of sentence. Furthermore, it is not until the post-verdict motions are decided that the sentence becomes final for the purposes of appeal. Rule 359(C) & (F), Pa.R.Crim.R, 42 Pa.C.S.A. Therefore, in accordance with this procedure, on February 8, 1990, the trial court denied Appellant’s post-trial motions. However, it was not until July 13,1990 that the lower court sentenced Appellant on his conviction for receiving stolen property, and on August 10, 1990, Appellant filed the instant appeal challenging both his murder conviction and his conviction for receiving stolen property.

Before proceeding to the merits of this appeal, we note that the' appeal from the judgment of sentence on first degree murder was not filed within thirty days after dismissal of post-trial motions. As we noted above, under Rule 359, when the court rules on the post-verdict motions in a first degree murder conviction, this triggers the running of the thirty day period for filing an appeal. Nevertheless, we do not find that the issues pertaining to the murder conviction are waived.

In the interests of judicial economy and the avoidance of piecemeal appeals, we hold that in cases where a mandatory sentence is imposed immediately after the verdict is rendered, an appeal from the Rule 359 sentence is not untimely if it is filed within 30 days of the date that sentence is imposed on the remaining counts on which the defendant has been convicted at the same trial. We also hold that it would not be error to file two appeals, one within 30 days of the denial of post-verdict motions following the murder conviction, and one within 30 days of sentence on the final charges. In both instances, all issues properly preserved at trial and raised in post-trial motions would be preserved for appellate review.

In this appeal, Mr. Kauffman raises six issues for our review. They are:

I. Whether the evidence was sufficient to sustain the first degree murder verdict, and whether the verdict was against the weight of the evidence.
II. Whether the trial court erred in failing to suppress evidence seized from Appellant.
III. Whether the trial court erred in admitting photographic evidence of the corpse, and whether it erred in admitting expert evidence as to the time of death.
IV. Whether the trial court erred in limiting cross-examination of a jailhouse informant.
V. Whether a new trial should be granted based on prosecutorial misconduct.
VI. Whether Appellant was ineffectively represented by counsel and an ineffectiveness hearing should be granted because:
1) the ongoing animosity between Appellant and his defense counsel resulted in ineffective representation,
2) trial counsel failed to ask for a severance of the theft charges from the homicide charges,
3) trial counsel failed to call certain alibi witnesses,
4) trial counsel failed to cross-examine certain witnesses concerning charges pending against them.

Concerning the first five issues, we have carefully reviewed the record, the well-reasoned opinions of the lower court, and briefs of the parties. We conclude that the result reached by the trial court on these issues is correct and therefore we affirm. The ineffectiveness of counsel who represented Appellant at trial and during post-trial motions, is raised here at the first opportunity, and we will therefore consider the merits of these claims.

The standard used for assessing counsel’s stewardship is well established. Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with the Appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984). We inquire first whether the underlying claim is of arguable merit. Then, we ask whether counsel had any reasonable basis for the questionable act or omission, and if there was such a basis our inquiry ends. If there is no reasonable basis, then Appellant will be granted relief only if counsel’s improper course of conduct was prejudicial, resulting in an adverse effect upon the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-976 (1987).

Appellant’s first claim that because of the ongoing animosity between Appellant and trial counsel, counsel was ineffective, is unsupported by any averment of specific prejudice. Without a factual predicate upon which counsel’s assistance may be evaluated, we hold that this claim is too general to entitle Appellant to relief. See, Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). Furthermore, the record shows that despite any animosity that may have existed, counsel was a zealous advocate for Appellant. He frequently objected to evidence he deemed improper, and cogently argued his position to the court. Counsel also called an expert witness for the defense to challenge the Commonwealth’s expert testimony concerning the identity of a shoe print found on the victim’s back. This general claim of ineffectiveness is unsupported by the record.

We also see no ineffectiveness in counsel’s failure to ask for a severance of the theft from the homicide charge. Appellant argues that because both crimes were tried together, the jury was able to infer a criminal disposition on the part of the defendant from which it found his guilt of the other crimes. However, Appellant was found not guilty of the theft of the automobile (although he was found guilty of receiving the stolen property), and therefore we may conclude that no such cross-over inference was made by the jury.

We do, however, hold that an evidentiary hearing is required in order to determine whether counsel was ineffective for failing to subpoena certain witnesses which Appellant alleges he requested, and for failing to cross-examine two Commonwealth witnesses concerning charges pending against them. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the trial court to permit the defendant to develop evidence on the the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.” Commonwealth v. McBride, 391 Pa.Super. 113, 570 A.2d 539, 543 (1990), citing, Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). First, we will evaluate the claims concerning each witness seriatim.

Appellant claims that he requested trial counsel to subpoena the boy, and/or the person who drove the boy, who delivered a newspaper to Rose Colna’s house, and spoke to him about payment for the newspaper. Appellant contends that this testimony would establish that he was present at the house before 6:00 p.m. on August 13, 1988, the time the crime was committed. Appellant further argues that failure to subpoena these witnesses was ineffectiveness.

We agree that if Appellant can establish that counsel had been told of the existence of these witnesses and failed to try to locate them, and if they would testify as alleged, then Appellant’s claim of ineffective assistance of counsel is colorable. We have held that Appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Polk, 347 Pa.Super. 265, 271-273, 500 A.2d 825, 828-829 (1985).

It is apparent that if these witnesses testified as Appellant predicted, they would have established an alibi at an important period of time. The pathologist testified that the murder occurred at some time between 5:00 and 7:00 o’clock on August 13, 1988. Moreover, counsel for the Commonwealth stated in his closing argument that Appellant didn’t account, “for the time, the only crucial time in this case. Where was he between 5 o’clock and 6:30?” (N.T. at 831, May 19, 1989). Therefore, an evidentiary hearing is needed to substantiate the claim of ineffectiveness concerning these two alibi witnesses.

Next, Appellant claims that Bobby Tobin should have been called to verify that Appellant was “at the pavilion and Dobie Dam.” Because we find that this claim is too general, it does not specify the time in which Appellant was seen at these locations, and because it is not clear how such evidence would have been helpful to Appellant’s cause, Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986), especially since this same witness had provided damaging evidence in his testimony for the Commonwealth concerning Appellant’s presence at other times in another place, we conclude that this claim need not be addressed at the evidentiary hearing.

However, we do believe that the claim of ineffectiveness for failure to call Mr. Thomas Elo and other members of the Cumbola Fire Company, who would allegedly testify that Appellant was not wearing any sneakers at the scene of an accident near the murder scene and just prior to the murder, should be explored at the evidentiary hearing.

The last of these witnesses who Appellant claims should have been called werex the various inmates whose names were not known to the defendant but who could have been ascertained by examination of the roster at the Chesterfield County, Virginia jail, and were in the transit cell block at the time of another inmate’s, Mr. Fore’s, conversation with the defendant, in which Appellant made some damaging admissions. He claims that they would have testified that he did not have any conversations or confessions concerning the case. We find no merit to the underlying claim here. We do not believe that these unknown inmates can testify to the non-existence of a conversation that three other inmates either participated in or. overheard. It would be impossible for them to testify that this conversation never occurred, unless they were with Appellant every minute of the time he was in the transit cell. This is highly unlikely. Therefore, we hold that counsel was not ineffective for failing to call these inmate/witnesses.

Finally, we hold that the claim that counsel failed to cross-examine Commonwealth witnesses, Patricia Leskin and Donald Mehlman, as to charges pending against them is of arguable merit, and whether such charges were indeed pending should be explored at the evidentiary hearing. Potential bias and motivation to fabricate are properly subject to cross-examination. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). The party against whom a witness is called always has the right to show by cross-examination that the witness is biased or has an interest in the result of the trial. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). If Appellant has been deprived of this essential right by counsel’s failure to cross-examine these two witnesses, then there may be merit to his claim of ineffectiveness.

However, Appellant’s claim that there was a conflict of interest because the public defender’s office was also representing Leskin and Mehlman has no merit. We do not see how there could be any harm in asking these witnesses if there were charges pending against them, and thus we can not see how the interests of the Appellant and those of the witnesses, if they were indeed clients of the public defender’s office, conflict.

Therefore, we affirm the judgment of sentence and remand solely for an evidentiary hearing on those claims of ineffectiveness which we have indicated are of arguable merit. If on remand the trial court concludes that Appellant’s counsel was ineffective, sentence should be vacated and the case should be remanded for a new trial. However, if the court on remand finds no ineffectiveness, Appellant shall have a right to appeal this finding within thirty days of entry of the trial court’s order.

CERCONE, J., files a concurring and dissenting opinion.

CERCONE, Judge,

concurring and dissenting.

I agree that the judgment of sentence should be affirmed. I disagree with the majority’s holding that in cases where a mandatory sentence is imposed immediately after a verdict is rendered, we should find an appeal from that sentence timely if filed within thirty days of the date that sentence is imposed on the remaining counts of which appellant has been convicted. Such a rule will not in the long run serve the interests of judicial economy as it will foster uncertainty and confusion in an area of law that is now well-settled.

In the instant case, appellant was found guilty by a jury on May 19, 1989 of first degree murder and receiving stolen property. The following day, May 20, 1989, appellant was sentenced to life imprisonment after the jury was unable to reach a unanimous verdict on sentencing, as required by 42 Pa.C.S.A. § 9711(c)(l)(v). In accordance with Rule 359 of the Pennsylvania Rules of Criminal Procedure, appellant filed a motion in arrest of judgment and/or for a new trial on May 26, 1989. Rule 359 requires the filing of post-verdict motions within ten days of the imposition of sentence in a case in which' a mandatory sentence is provided for by law, upon verdict, and the court immediately imposes such sentence. Pa.R.Crim.P., Rule 359B and C, 42 Pa. C.S.A. Rule 359 further provides that when the post-verdict motion is decided, the judgment of sentence imposed upon verdict becomes final for purposes of appeal. Id., Rule 359F.

On February 8, 1990, the lower court denied appellant’s post-verdict motions. The court below did not sentence appellant on the receiving stolen property charge until July 13, 1990. On August 10, 1990, appellant filed a notice of appeal under Rule 902 of the Pennsylvania Rules of Appellate Procedure, challenging both sentences. Pa.R.A.P., Rule 902, 42 Pa.C.S.A.

The majority in the instant case holds that:

In the interests of judicial economy and the avoidance of piecemeal appeals, we hold that in cases where a mandatory sentence is imposed immediately after the verdict is rendered, an appeal from the Rule 359 sentence is not untimely if it is filed within 30 days of the date that sentence is imposed on the remaining counts on which the defendant has been convicted at the same trial. We also hold that it would not be error to file two appeals, one within 30 days of the denial of post-verdict motions following the murder conviction, and one within 30 days of sentence on the murder charge. In both instances, all issues properly preserved at trial and raised in post-trial motions would be preserved for appellate review.

The majority’s holding carves out an exception, without authority, to the well-established requirement of both statute and rule requiring the filing of an appeal from a final order within thirty (30) days of that order. Section 5571(b) of the Judiciary Act provides, “[A]n appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken____” 42 Pa.C.S.A. § 5571(b). Rule 903 of the Rules of Appellate Procedure also provides straightforwardly that “[ejxcept as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. In criminal cases, an appeal generally lies from the judgment of sentence. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984). In the instant case, the judgment of sentence of life imprisonment became final on February 8, 1990. Pa.R.Crim.P., Rule 359F, supra.

With regard to the established time limitations on the taking of appeals, our supreme court has insisted that such limitations be strictly construed; they cannot be extended as a matter of grace. Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972). See also Commonwealth v. Hottinger, 370 Pa.Super. 527, 537 A.2d 1 (1987), allocatur denied 520 Pa. 614, 554 A.2d 507 (1988). Indeed, the legislature has itself mandated this requirement. 42 Pa. C.S.A. § 5504(a) (legislative time limitations on actions shall not be extended by court order or rule). The filing period will be extended and an appeal nunc pro tunc permitted only in extraordinary circumstances, such as fraud or some breakdown in the processes of the court. West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Commonwealth v. Horner, supra; Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990). See also 42 Pa.C.S.A. § 5504(b) (time limitations prescribed by the legislature may be extended to relieve fraud or its equivalent).

In the instant case, no circumstances which would permit a nunc pro tunc appeal have been alleged. The appeal period for appellant’s life sentence began on February 8, 1990, the date the trial court ruled on appellant’s post-verdict motions. See Pa.R.Crim.P., Rule 359F, supra. Appellant took no action on this appealable order until August 10, 1990, some six months after the commencement of the thirty-day appeal period. Yet, appellant provided no explanation for the delay.

The majority excuses appellant’s unexplained delay by carving out an exception to the thirty-day appeal period which is provided for unequivocally by law. I strongly believe it is error to carve out a judicially created exception to handle this situation. In fact, section 5504(a) of the Judiciary Act, supra, specifically prohibits such judicial action.

I also do not share the majority’s belief in the practical advantages of such a rule. Criminal Rule 359 speaks thoroughly to the appeal procedure to be followed in cases involving a mandatory sentence handed down at verdict. It is not an onerous requirement under this rule to insist that criminal defendants and/or counsel analyze a case involving a mandatory sentence at verdict as well as other sentences to ascertain which sentences require an earlier filing of an appeal. Rather than creating an exception to an established and useful rule of appellate procedure, I believe the interests of the judicial system would be better served if we were to follow established law and hold that appellant has waived issues related to his life sentence because of his failure to timely appeal them. The interests to be served by such holding would include uniformity and continued certainty as to what litigants and courts have come to expect in regard to the filing of appeals. The stability which such a ruling would foster is, I believe, preferable to the “savings” to the “judicial economy” which the majority claims will result from its newly created rule.

I agree with the majority that a holding that appellant’s appeal of his life sentence was not timely filed would most likely result in additional litigation, because counsel was almost assuredly ineffective for failing to file an appeal of the life sentence within thirty days of February 8, 1990. Nevertheless, I believe we must keep in mind, in deciding whether to save this court from additional litigation, the particular facts of this case. The sentence upon which appellant delayed to act was a life sentence. There is only one sentence under our law which is more grave and serious than this. In addition, the charges against appellant of first degree murder and receiving stolen property were the result of two separate informations consolidated for the purposes of trial. Surely, under these circumstances, counsel must have been at least vaguely aware that something needed to be done to protect appellant’s appeal rights after appellant received a life sentence on the murder charge. Counsel needed only to have consulted Rule 359 to have determined the proper method of proceeding. I am concerned that the majority’s holding gratuitously excuses counsel’s inaction under circumstances which literally cried out for attention, and in the process creates an unnecessary-judicial exception to a well-established and vital rule of appellate procedure.

Accordingly, I would hold that appellant has waived all issues on appeal relative to his untimely appeal of the life sentence which was finalized on February 8, 1990. I would on that basis affirm the judgment of sentence.

      . Section 9711, relating to the sentencing procedure for murder of the first degree provides for a separate sentencing hearing "in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.” 42 Pa.C.S.A. § 9711(a)(1). The statute further provides that “the court may, in its discretion, discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment.” Id. § (c)(l)(v).


text:
    592 A.2d 98
    COMMONWEALTH of Pennsylvania, Appellee v. Donald J. NICHOLAS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed June 10, 1991.

      Leonard V. Tenaglia, Media, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., Downingtown, for Com., appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Chester County denying the appellant Donald Nicholas’ petition to remand his case for trial and/or petition for allowance of appeal nunc pro tunc. We affirm.

The parties are not in dispute as to the material facts. Thus, for purposes of review, we will adopt Nicholas’ version of the events which preceded the filing of this appeal.

On November 18, 1989, Officer J. Fetterman, of the Schuykill Township Police issued citation No. G27221 to Petitioner Donald J. Nicholas. The citation alleged that Mr. Nicholas “did with intent to harass, annoy & alarm another person [follow] her about public roads from Schuykill Elementary to residence.” (R. 10a, 40a). Mr. Nicholas was served [with] the citation by certified mail at his home in Wilmington, DE, on December 20, 1989. Mr. Nicholas [pleaded] not guilty and a hearing was scheduled January 24, 1990 before Phoenixville District Justice John T. Jeffers (R. 11a). On January 24, 1990, Petitioner suffered the loss and death of his father. Just prior to [his] hearing on January 24, 1990, Petitioner presented himself to the District Court with a check from the Phoenixville Education Association in the amount of $100.50 and stated to the court that he did not care what it did but that he was not staying because of the death of his father. (R. lla-12a, 24a).
The District Court [chose] not to hold the scheduled hearing on January 24, 1990, but instead notified Mr. Nicholas that the $100.50 check was accepted as security for appearance at a hearing scheduled February 12, 1990 (R. 12a, 19a). On February 12, 1990, neither the Petitioner nor the complainant appeared.
The District Court held an in chambers hearing where, based solely on the hearsay testimony of Officer Fetter-man, who issued the citation, the Court found Mr. Nicholas guilty of harassment. (R. 14a-15a).
On February 13, 1990, the District Court sent a letter to the Petitioner____ The letter states that Mr. Nicholas was adjudged guilty of harassment as per the citation, and hearing on February 12, 1990 and [the letter] advised the following: “You are to pay fine and costs of $19.00 to this office within the next thirty (30) days or you must file an appeal to this decision within the same 30-day period.” (R. 41a, Exhibit D-2).
Mr. Nicholas has been a school teacher in the Phoenixville Area School District for the last seven years. In 1988 he was designated to act as chairman of the Teacher-Union’s Welfare Committee for purposes of contract negotiations with the School District and was actively engaged as chief negotiator for the Phoenixville Area School District during a lengthy thirty-four (34) day teacher’s strike that began September 19, 1989 and ended November 3, 1989. The Phoenixville School District notified Mr. Nicholas on April 24, 1990 that it was moving to employment suspension to dismiss him from employment for “immorality” based on the conviction on February 12, 1990.
It was receipt of notice of the School District’s intention to terminate that compelled Mr. Nicholas to review the events of January 24, 1990 and what followed. (R. 26a). [____] Based upon the above, Mr. Nicholas filed a Petition with the Court of Common Pleas seeking, in the alternative, either an order remanding the summary matter to the District Justice for an actual trial, or in the alternative, an order allowing an appeal to the Common Pleas Court nunc pro tunc. After hearing, the [trial] court denied the Petition and this appeal followed.

Appellant’s brief, at 4-6.

Nicholas raises the following issues for our consideration: (a) whether a “breakdown in the court’s operation” occurred in this instance so as to allow him to appeal his summary conviction nunc pro tunc and (b) whether he knowingly and intelligently waived his appeal rights. After a review of the parties’ briefs, the trial court opinion and the applicable law, we are constrained to agree with the trial court that Nicholas’ petition was properly denied. In so deciding, we echo the sentiments of the trial court that “hard cases should not automatically result in bad law.” Trial court opinion, at 5.

Nicholas correctly notes that a defendant may appeal a summary conviction nunc pro tunc when he can establish a breakdown in the operation of the court. Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983). He argues that such a breakdown occurred when (a) the district justice conducted at trial in chambers in violation of the Pennsylvania Constitution, Art. I, § 11 and Pa.R.Crim.P. 83; (b) the district justice incorrectly advised him of the amount of his fine in violation of Pa.R.Crim.P. 84; and (c) the district justice incorrectly advised him of his appellate rights. These issues are without merit. Additionally, none of these alleged errors constitute a breakdown in the system such that an appeal effort would have been thwarted.

Pa.R.Crim.P. 83, titled “Trial in Summary Cases,” provides in pertinent part:

(b) If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived____

This is the provision to which Nicholas is referring when he complains that the District Justice’s in-chambers hearing violated Rule 83 and the State Constitution. First, this issue could have been raised on appeal. See Pa.R.Crim.P. 86; Commonwealth v. Bassion, 390 Pa.Super. 564, 567, 568 A.2d 1316, 1318 (1990). Second, Nicholas himself did not appear at his hearing. Thus, it seems odd that at this stage he is contesting that his right to a public court was violated.

Pa.R.Crim.P. 84, titled “Trial in Defendant’s Absence” provides:

(a) If the defendant fails to appear for trial in a summary case, the trial may be conducted in the defendant’s absence.
(b) At trial, the issuing authority shall proceed to determine the facts and render a verdict.
(c) If the defendant is found not guilty, any collateral previously deposited shall be returned.
(d) If the defendant is found guilty, the issuing authority shall impose sentence, and shall notify the defendant of the conviction and sentence by first class mail. Any collateral previously deposited shall be forfeited and applied to payment of the fine and costs. When the amount of collateral deposited is more than the fine and costs, the balance shall be returned to the defendant. When the amount of collateral deposited does not satisfy the fine and costs, the issuing authority may issue a warrant for the defendant’s arrest.

Nicholas argues that the District Justice incorrectly informed him of the amount of his fine and the costs of prosecution. Moreover, he contends that the notice of his right to appeal was ambiguous and that he was under the impression that his appellate remedies extended only to the amount of the fine and not to the adjudication of guilt.

We find this first argument to be frivolous, inasmuch as Nicholas acknowledged at an evidentiary hearing on May 29, 1990 that the $19.00 cost was paid. See N.T., May 29, 1990, at 23. See also id. at 13. In addition, even if Nicholas was confused as to the amount of his sentence, he still forfeited his right to appeal the substantive merits of his conviction by failure to file an appeal timely.

Here, we reproduce the contents of the letter, dated February 13, 1990, that was mailed to Nicholas in accordance with Pa.R.Crim.P. 84.

Mr. Nicholas:
On February 12, 1990, you were adjudged guilty of Harassment as per citation G27221 and the hearing held on February 12, 1990. You are to pay fine and costs of $19.00 to this office within the next thirty (30) days or you must file an appeal to this decision within the same 30-day period. If an appeal is filed in the Court of Common Pleas, West Chester, a hearing will be held de nova, [sic] If you have any further questions please contact this office. Thank you. [Secretary to John Jeffers].

From the foregoing, it appears that Nicholas did not contest his fine, and, also, that he was clearly advised of his appellate rights. He did nothing to challenge his conviction until he was notified that his job was in jeopardy due to his misconduct. Unfortunately, the failure to anticipate the collateral consequences of a conviction is not a reason to allow a defendant to appeal nunc pro tunc. Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990); Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990)); Commonwealth v. Englert, 311 Pa.Super. 78, 457 A.2d 121 (1983).

Nicholas next contends that he did not knowingly and intelligently waive his appellate rights. He asserts that he was under stress as a result of his father’s death and was “emotionally unable” to render a decision regarding his appeal. The trial court, in its opinion, wrote:

Mr. Nicholas claims that he was in such a state of emotional shock that he was not paying attention to his daily affairs, and that this is the reason why he pleaded guilty and then allowed the appeal period to lapse without taking any further action. I asked counsel at oral argument whether there was any case law saying that emotional shock or something of that sort is sufficient to excuse a failure to file a timely appeal, and counsel was candid enough to advise that he could find no such case. I am unable to find any such cases either.

Trial court opinion, at 3. We have researched this issue independently, and there appears to be only one case even remotely on point. In Borough of Bellefonte v. Commonwealth, DER, 131 Pa.Commw. 312, 570 A.2d 129 (1990), the Commonwealth court rejected the argument that emotional distress was an excuse for a secretary’s negligent performance of her duties. Cf. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). See also Goldberg v. Goldberg, 315 Pa.Super. 333, 461 A.2d 1307 (1983) (mere hardship will riot warrant an appeal nunc pro tunc).

The facts here convince us that there was no breakdown in the operation of the court sufficient to warrant Nicholas’ appeal nunc pro tunc. We find that Nicholas was clearly informed of his appellate rights and his motivation for exercising them was sparked by his employment situation, not by his pursuit of justice at the onset. Thus, having failed to sustain his burden of proof and having failed to comply with the procedural rules, Nicholas’ claims must be rejected. We affirm the trial court’s decision to deny Nicholas’ petition for allowance of appeal nunc pro tunc or, in the alternative, his petition to remand his case for trial.

Order affirmed.

      . Nicholas’ employment was terminated on April 19, 1990. His petition with the trial court was filed on May 3, 1990. An evidentiary hearing was held on May 29, 1990. This appeal was perfected on June 22, 1990.

      . Nicholas also claims that he
      intended to defend the claim of harassment and that much is evidenced by his request for [a] hearing. (R. 27a). Due, however, to the death of his father and the impact it had upon Mr. Nicholas and his family, an ability to think clearly and intelligently about the situation eluded him. Mr. Nicholas, a loving and caring family man, was not at the time in a position to intentionally abandon or fail to exercise his right to [a] hearing. (R. 25a).
      Appellant’s brief, at 6.

      . "Our scope of review of a decision of whether to permit an appeal nunc pro tunc is limited to a determination of whether the trial court has abused its discretion or committed an error of law." Commonwealth, Dep't of Transportation v. Moore, 120 Pa.Commw. 617, 621, 554 A.2d 130, 132 (1988).

      . The trial court concluded:
      I sympathize with Mr. Nicholas, and if there were any way, within the confines of the law as I understand it, to give him relief, I would be more than happy to do so. Unfortunately, I am of the opinion that for me to grant him the relief he seeks would require me simply to ignore the legal predicates for such relief, and I cannot and should not do so.
      Trial court opinion, at 5.

      . In Englert, this Court stated:
      When an Act of Assembly fixes the time within which an appeal may be taken, courts are without power to extend the period or allow an appeal nunc pro tunc absent fraud or its equivalent or some breakdown in the court’s operation.

        Id. 311 Pa.Super. at 81, 457 A.2d at 123. See also Commonwealth v. Anwyll, 333 Pa.Super. 453, 482 A.2d 656 (1984).

      . We note that Nicholas’ petition does not contain a claim that the District Justice’s letter was ambiguous. Cf. Memorandum in Support of Petition for Allowance of Appeal Nunc Pro Tunc.

      . The $19.00 reflected sums expended as a result of the issuance of two witness subpoenas. N.T., May 29, 1990, at 10.

      . At the evidentiary hearing, Nicholas’ attorney argued the following:
      [Wjhat I do think is that the breakdown in the court system occurs when the rules of criminal procedure which pertain are not strictly complied with. And under circumstances where the evidence in the case is that a public trial was not conducted and where the further documentary evidence in the case is that the defendant was not specifically notified of what the sentence of the court is, as is explicitly required by the rules, then that failure constituted a breakdown in the court system that I think entitled the defendant to a remand in this matter, or to appeal nunc pro tunc.
      N.T., May 29, 1990, at 27-28.

      . In fact, on January 24, 1990, Nicholas paid to the District Court the sum of $100.50, which was accepted as security for the $50.00 fine and the $50.50 cost of prosecution to which he was sentenced on February 12, 1990. When added to the cost of the subpoenas ($19.00), the total amount owed for prosecution was $69.50. From the $119.50 sentence, the District Court deducted the $100.50 previously paid and charged Nicholas the $19.00 balance. Regardless of whether all of this information was contained in the February 13, 1990 letter, Nicholas paid the entire amount and did not complain of a violation of Pa.R.Crim.P. 84 until the evidentiary hearing. C/. Memorandum in Support of Petition for Allowance of Appeal Nunc Pro Tunc. Moreover, any alleged violations of Rule 84 could have been raised specifically within 30 days of the summary conviction and do not constitute fraud or a breakdown in the system such that would justify reversing the trial court’s decision now.


author: WIEAND, Judge:

text:
    592 A.2d 102
    KING’S OAK LIQUIDATORS, Appellant, v. BALA CYNWYD HOTEL ASSOCIATES, Appellee.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed June 11, 1991.

      Everett K. Sheintoch, Philadelphia, for appellant.
    Mark L. Alderman, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

In this mechanics’ lien proceeding, the trial court granted a motion to strike the lien because the services rendered by the claimant were not properly the subject of a mechanics’ lien. On appeal, we affirm.

A mechanics’ lien is a creature of statute. See: Mechanics’ Lien Law of August 24,1963, P.L. 1175, No. 497, 49 P.S. §§ 1101 et seq. A lien is available “for the payment of all debts due by the owner to the contractor ... for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement [to property].” Mechanics’ Lien Law of 1963, supra, § 301, 49 P.S. § 1301. “Erection, construction, alteration or repair” includes “(a) [demolition, removal of improvements, excavation, grading, filling, paving and landscaping, when such work is incidental to the erection, construction, alteration or repair[.]” Mechanics’ Lien Law of 1963, supra, § 201(12)(a), 49 P.S. § 1201(12)(a).

The notice of lien in this case avers that King’s Oak, a Pennsylvania partnership, agreed to furnish labor, as set forth in Exhibit “A”, in connection with “liquidation of the furniture, fixtures and equipment; asbestos removal; and demolition of the hotel structure” known as Dunfey City Line Hotel and owned by Bala Cynwyd Hotel Associates, a New York limited partnership. The agreement is not alleged to have been written, and we assume, as appellee suggests, that the only agreement between the parties was oral. The notice of lien, as well as the complaint, refers only generally and non-specifically to the labor performed pursuant to the oral contract. The statement for services attached as Exhibit “A”, however, is specific and is as follows:

EXHIBIT “A”
LABOR AND MATERIAL FURNISHED TO BALA CYNWYD HOTEL ASSOCIATES BY KING’S OAK LIQUIDATORS September-October, 1987
Labor for: cleaning kitchens, common areas and loading docks, verifying inventory, securing buildings, etc. 9/20 to 10/20/87
8 men @ $15/hr. per man
285 hours total $ 34,200.00
4 supervisors @ $50/hr. per man
326 hours total 65,200.00
Supplies & Equipment
Chains, locks, cleaning
supplies, etc. 892.00
Security services 9/20-9/30/87 1,712.75
10/1-10/31/87_7,356.75
TOTAL $109,361.50

From this it can be determined that the services for which the claim is made include labor involved in cleaning, verifying inventory and securing buildings, as well as the cost of cleaning supplies. A claim is also made for security services, including the cost of chains and locks.

The Mechanics’ Lien Law is to be given a strict construction because it is in derogation of the common law and provides a special remedy in favor of a unique class of creditors. Yellow Run Coal Co. v. Yellow Run Energy Co., 278 Pa.Super. 574, 577, 420 A.2d 690, 692 (1980); Sampson-Miller Associated Companies, Inc. v. Landmark Realty Co., 224 Pa.Super. 25, 26-27, 303 A.2d 43, 43 (1973). In general, a lien cannot attach to land for work unconnected with the construction of a building or other permanent structure. Yellow Run Coal Co. v. Yellow Run Energy Co., supra, 278 Pa.Super. at 575, 420 A.2d at 691; Sampson-Miller Associated Companies, Inc. v. Landmark Realty Co., supra, 224 Pa.Super. at 30-31, 303 A.2d at 45-46. It has been held, therefore, that security services performed during construction of a building are not protected by the Mechanics’ Lien Law. Metropolitan International v. Union Investment Co., 17 Pa.D. & C.3d 519 (Phila.1981). It has also been held that the removal of trash as part of a contract to demolish a building is not protected. Jan-Lee Corp. v. Thompson Realty Co., 3 Pa. D. & C.2d 457 (Phila.1954).

After careful review of the Mechanics’ Lien Law and its purposes, we conclude that cleaning services performed pursuant to an oral agreement, even if in preparation for demolishing a building, are not subject to protection under the Mechanics’ Lien Law. Similarly, neither security services nor work done in verifying inventory are lienable. Our decision is required by the clear intent of the legislature. If it had intended to include such items within the protection of the Mechanics’ Lien Law, it would have said so. It did not, and this Court cannot rewrite the law. The plaintiff in this case is not without remedy, but it cannot proceed via mechanics’ lien.

Order affirmed.