author: WETTICK JR., J.,

text:
    Rotunda v. Petruska

      C.P. of Allegheny County,
    no. GD08-018798.

      David C. Martin Jr., for plaintiff.

      Kristin L. Pieseski and Jennings L. Hart III, for defendants.

      December 1, 2010
   WETTICK JR., J.,

Defendants’ motion to compel plaintiff to submit to neuropsychiatric testing through a court order barring the attendance of her counsel at the testing is the subject of this opinion and order of court.

This is a dental malpractice action in which plaintiff alleges that she suffered brain injury as a result of September 14, 2006 dental treatment that included the use of nitrous oxide sedation coupled with a Septocaine injection.

At a July 23, 2010 deposition, plaintiff testified that following the September 14, 2006 treatment, she has been experiencing confusion, disorientation, vertigo, depression, increased alcohol consumption, suicidal ideation and attempt, difficulty concentrating and making decisions, an inability to maintain her household and finances, short-term memory loss, difficulty driving, and numerous other emotional and physical complaints.

In her deposition, plaintiff testified that since September 14, 2006, she has been treated on a regular basis by both her family physician (Dr. Ott) and a neuropsychologist (Dr. Neville) and that both physicians have provided her with an opinion that her current mental and emotional difficulties stem from the September 14, 2006 treatment.

Defendants state that the examination which they seek plaintiff to undergo will be conducted by Dr. Lisa Morrow, Ph.D., a neuropsychologist with qualifications similar to those of Dr. Neville.

The dispute in this discovery matter is over whether I may compel plaintiff to undergo this examination pursuant to a court order providing that her attorney may not be present and the examination will not be recorded. Defendants rely on a September 16, 2010 letter from Dr. Morrow to counsel for defendants (supplement to defendants’ motion to compel, ex. C) setting forth three reasons why the evaluation cannot be conducted in the presence of third-party observers:

Reason One

First, neuropsychological tests must be administered in a standard format. Standardized administration of the tests allows for the results to be compared to the published norms. That is, norms have been developed for these tests by having people of similar age and background with no history of neurological injury complete the tests in a “standard” way. The standard assessment does not include the presence of a third party. The test scores from the normative sample are then used to develop “cut-off’ scores or “normal ranges” for comparison when assessing persons with possible brain injury. If standardization is not adhered to (such as having a third party present), this then invalidates the norms. To quote Dr. Robert McCaffrey (McCaffrey, Fisher, Gold & Lynch, 1996), “A standard administration of a test, by definition, must adhere to the procedures outlined in the test manual. If administration of the test does not follow these procedures, then it is inappropriate to compare the results of the examinee to normative results from the standardization sample that received the standard administration” (pg 440). The presence of a third party introduces an “unknown variable” into the testing which “may prevent the examinee’s performance from being compared to established norms and potentially precludes valid interpretation of the test results” (Official Statement of the National Academy of Neuropsychology, 2000). Defendants’ supplement, ex. C at 1.

Reason Two

Second, the presence of a third party may pose a threat to test security. That is, whoever observes the testing will have seen the questions as well as the answers. As McCaffrey indicates, these tests are not to “become part of the public domain” (page 446). Maintaining test security is one of the specific Ethical Standards of the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (cf American Psychologist, 2002). The National Council on Measurement in Education also noted in the Standards for Educational and Psychological Tests that the administration of tests “should adhere to standard procedures set by test publishers and that testing should be carried out with no distraction” (as cited by Constantinou et ah, 2002). Id. at 2.

Reason Three

Finally, the most serious threat to the integrity of the testing is the phenomenon of social facilitation. Basically, any time there is the presence of an observer, or if the testee knows that they are being observed, performance will be altered. Therefore, “the results of the evaluation will provide a misleading representation of the individual’s current level of functioning” (McCaffrey et al., page 444). Recent research has found that a third party observer may exert a negative influence on test performance. That is, studies have found that the presence of a third party observer, or the presence of an indirect observer (i.e., a video recorder or an audio recorder), resulted in lower neuropsychological test scores when there was an observer present in the room (Binder & Johnson-Greene, 1995; Constantinou & McCaffrey, 2003; Constantinou, Ashendorf & McCaffrey, 2002; Kehrer, Sanchez, Habif, Rosenbaum & Townes, 2000; Horwitz & McCaffrey, 2005; Lynch, 1997). Studies have found that memory scores in particular were lower for persons who were tested when a third party observer was in the room compared to examinees who were tested without a third party (Lynch, 1997). Constantinou & McCaffrey (2003) concluded that the presence of an observer has a negative influence that constitutes “a threat to the validity and interpretation of test scores.” Id.

At paragraph 10 of defendants’ supplement, defendants state that it would be a breach of Dr. Morrow’s standard of care under the guidelines of Dr. Morrow’s profession and practice for her to allow a third party to be present for the testing.

I have no reason to question the accuracy of Dr. Morrow’s statement that the presence of an observer may skew the test results and that she can proceed with this testing only if other persons are barred from attending.

It is plaintiff’s position that a court may compel physical and mental examinations of persons only as provided for in Pa.R.C.P. No. 4010. Under Rule 4010(a)(4)(i), “[t]he person to be examined shall have the right to have counsel or other representative present during the examination.”

It is defendants’ position that the court, in the exercise of its discretion, may exclude counsel upon a showing that defendant is seeking to compel plaintiff to submit to a well-recognized standard test that must be administered pursuant to specific procedures designed to remove variables that may influence test scores.

Prior to July 1, 1998, Pa.R.C.P. No. 4010(a) only permitted a court to order a party to submit to a physical or mental examination “by a physician.” In Stokes v. Mattie, 129P.L.J. 260,16 D.&C.3d 565 (1980), I ruled that a court could not compel a party to submit to a mental examination conducted by a clinical psychologist. I stated:

Defendant contends that we should ignore the clear language of this rule because the Supreme Court in promulgating this rule could not have intended to exclude an expert from conducting a mental examination whenever that expert is more competent than a physician to perform this task. We reject this contention. The clear language of a procedural rule may be disregarded only if it is patently inconsistent with the purposes of the rule and will produce results that are absurd or unreasonable. Pa.R.C.P. 127, 128. Rule 4010 is not designed to provide all information that may assist a party in preparing its case. Instead, by permitting a court to order an examination only on motion for good cause shown and by requiring the court to specify the manner, conditions and scope of the examination, this rule also recognizes the privacy interests of a person whose physical or mental condition is in controversy. And the requirement that the examination be conducted by a physician appears to be a deliberate effort to protect these privacy interests because this requirement will limit the scope, number and types of physical and mental examinations to which a person will be subjected. Id. at 261, 16 D.&C.3d at 567-68.

Former Rule 4010 did not specifically address whether counsel for the party to be examined might be present and whether the examination might be recorded. These issues were left to the trial court pursuant to the second sentence of prior Rule 4010(a) which provided that an order permitting an examination “shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.” See State Farm Mutual Automobile Ins. Co. v. Morris, 432 A.2d 1089,1092 (Pa. Super. 1981) (whether a person who is to be examined may be accompanied by his or her attorney is discretionary with the court).

Through amendments effective July 1,1998, Rule 4010 was amended to include licensed dentists and licensed psychologists as persons who may also conduct a physical or mental examination. The tradeoff was to provide additional protections for the person being examined through new subdivisions (a)(4) and (5). See Explanatory Comment-1998.

Under Rule 4010(a)(4)(l), a person to be examined “shall have the right to have counsel or other representative present during the examination.” Under Rule 4010(a)(5) (i), a person who is being examined “may have made upon reasonable notice and at the party’s expense a stenographic or audio recording of the examination.”

The language of the rule is clear. It creates a right to have counsel present during the examination.

As I said in Stokes v. Mattie, Rule 4010 is not designed to provide all examinations that may assist a party in preparing its case. It permits only those examinations specifically provided for by the rule. The clear language of the rule allows only examinations that are possible when counsel is present. A trial court may not, in the exercise of its discretion, provide for an examination outside the presence of counsel because through the promulgation of a rule permitting counsel to be present, the Pennsylvania Supreme Court has decided that the interests of the party to be examined in receiving the protections afforded by the presence of his or her counsel outweigh the interests of the party seeking an examination that can only be conducted outside the presence of a third party.

For these reasons, I enter the following order of court:

ORDER OF COURT

On December 1, 2010, it is hereby ordered that defendants’ motion to compel an examination without the presence of plaintiff’s counsel is denied.

      . Defendants’ proposed order of court, attached to defendants’ supplement, provides that no attorneys may be present for the testing portion of the examination and that the testing portion of the examination may not be recorded by means of audio or video recording.

      . Morris considered a physical examination pursuant to Section 401 of the No-Fault Motor Vehicle Insurance Act, 40 RS. §1009.401; the second sentence of this provision is almost identical to the second sentence of old Rule 4010(a).


source: Caselaw Access Project

author: CHERRY, J.,

license: Public Domain

text:
    First Commonwealth Bank v. Fresh Harvest River, LLC

      C.P. of Clearfield County,
    no. 2010 - 1312 - CD.

      Nicholas A. DiDomenico, for plaintiff.

      Blaise Ferraraccio, for defendant.
    September 3, 2010
   CHERRY, J.,

On July 26, 2010, plaintiff, First Commonwealth Bank (hereinafter “bank”), filed a complaint in confession ofjudgment in ejectment to obtain possession of a property located at 2592 Oklahoma-Salem Road, DuBois, Pennsylvania. Plaintiff alleges that defendant, Fresh Harvest River, LLC, (hereinafter “FHR”) breached the terms of a lease agreement. A writ of confession was filed on July 27, 2010.

On July 30, 2010, FHR filed a verified emergency petition to (1) open and/or strike judgment obtained by confession of judgment; (2) stay the enforcement of a writ of possession; and (3) abate or stay further proceedings on the basis of a prior action pending (hereinafter “petition”). Specifically, it claimed that a proceeding filed in the United States District Court for the Southern District of New York, captioned Fresh Harvest River, LLC., v. First Commonwealth Bank, et al, 10 Civ. 05483, on July 20, 2010, precluded this court from entertaining bank’s state action. Alternatively, it argued that the court should stay further proceedings until the federal case is resolved.

The court ordered the writ of possession stayed pending a hearing on the petition. On August 2, 2010, a hearing was held on the petition, at which time both parties were ordered to submit briefs on the issue of lis pendens to the court no later than August 13, 2010. An extension was granted at the request of FFIR’s counsel, extending the deadline to submit letter briefs to August 16.

For the reasons that follow, the court denies FHR’s petition to abate the proceedings on the basis of a prior action pending. In addition, the court denies FHR’s request for a stay pending resolution of the federal case. Additionally, the court finds that FHR failed to state a prima facie meritorious defense to bank’s complaint in confession of judgment in ejectment.

I. Applicability of doctrine of lis pendens

The purpose of the doctrine of lis pendens, or pendency of a prior action, is to protect defendants from having to defend multiple suits on the same cause of action at the same time. Penox Techs., Inc. v. Foster Med. Corp., 546 A.2d 114, 115 (Pa. Super. 1988). A court may either dismiss or stay the later commenced proceeding. Id. However, if a party is seeking dismissal, the requirements of the three-pronged identity test, discussed below, must be applied strictly. Crutchfield v. Eaton Corp., 806 A.2d 1259, 1262 (Pa. Super. 2002). On the other hand, when the identity test is not strictly met, but the action involves “a set of circumstances where the litigation of two suits would create a duplication of effort on the part of the parties, waste judicial resources and ‘create the unseemly spectacle of a race to judgment,’ the trial court may stay the later-filed action.” Id. (quoting Norristown Auto Co. v. Hand, 562 A.2d 902 (Pa. Super. 1989)).

To successfully assert lis pendens, the burden is on the moving party to show: (1) the parties are the same, (2) the claims asserted are the same; and (3) the relief requested is the same. Hessenbruch v. Markle, 194 Pa. 581 (1900); Norristown, supra; Crutchfield, supra. The question of a pending prior action is “purely a question of law determinable from an inspection of the pleadings.” Davis Cookie Co. v. Wasley, 566 A.2d 870, 874 (Pa. Super. 1989).

A. Same parties

The first requirement in order for lis pendens to be applicable is that the parties to each of the actions must be the same. Hessenbruch, supra. In a dissenting opinion, Judge Gwilym Price, Jr., argued that the standard has actually been relaxed to “substantially the same.” Raw v. Lehnert, 357 A.2d 574, 578 (Pa. Super. 1976). Judge Price wrote:

It is clear that Hessenbruch stands for the proposition that the defense of lis pendens is not to be thwarted by technical differences between the two questions in question. The plea of lis pendens is therefore properly raised when the parties, the causes of action, and the relief sought are either “substantially” or, as the majority indicates, “precisely” the same in both actions. Id. (J. Price, dissenting).

Some courts have found this persuasive. See Gray Bros. Inc. v. Harleysville Ins. Co., 47 Pa. D. & C. 3d 506, 525 (Pa. C.P. 1987). This court, however, determines that no matter which standard applies — “same” or “substantially the same” — the result is no different: the action pending before this court involves different parties than those involved in the federal action.

In Virginia Mansions Condominium Association v. Lampl, 552 A.2d 275 (Pa. Super. 1988), the court refused to abate the second suit because its parties were neither the same nor substantially the same as those involved in the other. In the first suit, there was one plaintiff and five defendants. Id. at 278. In the second case, only one of the five defendants sued the plaintiff. Id. The court found that “neither the number nor the identity” of the defendants matched. Id. See also Sullivan v. Ritchey, 40 Pa. D. & C. 3d 464 (Pa. C.P. 1985) (finding that where only three of five plaintiffs in the second case had filed a proceeding against the same defendants earlier, there was no identity of the parties). Furthermore, it found that the interests of each defendant and the wrongs alleged against each were different. Lampl, supra.

Likewise, the parties involved in the present suit are neither the same nor substantially the same. The present case involves just bank and FHR, whereas the federal case involves those parties, in addition to Kerry Inc. and The Kerry Group, LLC (collectively “Kerry”). Kerry’s interests differ from Bank’s, as do the wrongs FHR asserts against Kerry. Although FHR alleges Kerry and bank colluded together to defeat FHR’s purchase of the property, the counts asserted against Kerry differ from those asserted against bank. See complaint, Fresh Harvest River LLC v. First Commonwealth Bank et al, No. 10 Civ. 5483 (S.D.N.Y., July 20, 2010). Claims 1-3 against Kerry assert breach of contract seeking money damages, breach of confidentiality agreement, and tortious interference with contract. Id. Claims 4, 5, and 7 against bank asserts breach of contract seeking specific performance and a claim for declaratory judgment and injunctive relief. Id. While claim 6 is asserted against both bank and Kerry, Id., the difference between the individually asserted claims is sufficient to distinguish the parties from one another.

To consider Kerry and bank as the same or substantially same party would force bank to defend against claims to which it played no part and has no control. Additionally, it would prejudice bank by requiring resolution of all claims — its and Kerry’s — before it could proceed with its action in ejectment here. Such an end result surely is not what the courts had in mind when it adopted the doctrine of lis pendens.

For this reason, the court finds that band Kerry are also not in privity with one another. “Privity is broadly defined as ‘mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same qlegal right.’” Hillgartner v. Port Auth. Of Allegheny County, 936 A.2d 131 (Pa. Commw. 2007). In Hillgartner, the court concluded the addition of two defendants in a state complaint did not defeat the first prong of the identity test because the defendants wqere in privity and thus “substantially the same” as the other defendants. Id. at 140. There, the two individual defendants were employees of one of the previously named parties. Id.

Here, bank and Kerry are separate and distinct business entities. Bank is a banking organization formed under Pennsylvania law, whereas Kerry, Inc. is a supplier of food products with a principal place of business in Wisconsin, and Kerry Group is a multinational food and flavors manufacturing company organized under Irish law and having its principal place of business in Ireland. Complaint, Fresh Harvest River LLC v. First Commonwealth Bank et al, No. 10 Civ. 5483 (S.D.N.Y., July 20, 2010), at ¶¶ 3-5. Therefore, there is no relationship which would create privity between the two, and the two are considered different parties for purposes of lis pendens.

B. Same claims

Additionally, the court finds the claims involved in the present action and in the federal action differ. In Nickel v. McNaight, the court concluded an action in ejectment for wrongful possession differs from an action in assumpsit for breach of contract. 62 Pa. D. & C. 521, 525 (Pa. C.P. 1948). See also Penn-Mont Benefits Servs., Inc. v. Great Southern Life Ins. Co., 2005 WL 327048 (Pa. C.P. 2005) (confession of judgment action and breach of contract action were not the same); Comsup Commodities, Inc., v. Osram Sylvania, Inc., 2003 WL 22977519 (Pa. Ct. C.P. 2003) (claim for declaratory) udgment and claims for breach of contract, promissory estoppel, fraud, and negligent misrepresentation were not the same); Koppenheffer v. Humble Oil & Refining Co., 40 Pa. D. & C. 2d 259 (Pa. C.P. 1966) (claim for ejectment and claim seeking specific performance were not the same).

The causes of action involved here are likewise different. The present action is based on a complaint in confession of judgment in ejectment. The federal case involves breach of contract and tort claims, as well as seeks declaratory judgment and injunctive relief. See complaint, Fresh Harvest River LLC v. First Commonwealth Bank et al, No. 10 Civ. 5483 (S.D.N.Y., July 20,2010). Even if the court limits its review to just the claims filed in the federal suit against bank and not Kerry, the court still concludes the claims are different. See Id. (claims 4-7). Therefore, the second prong of the identity test is also not satisfied.

The fact that the two cases may be derived from the same underlying set of facts or even the same contract or agreement is immaterial to the court’s analysis. The state Supreme Court has repeatedly refused to apply lis pendens in such cases. See, e.g., Norristown, supra, (inapplicable when breach of contract and tort claims arise from same factual events); Lampl, supra (inapplicable when same factual events but different causes of action raised and relief sought); Penox Techs., supra (inapplicable when action for declaratory judgment and breach of contract claims arise from same contract); Glazer v. Cambridge Indus., Inc., 422 A.2d 642 (Pa. Super. 1982) (inapplicable when same factual events but one action based in equity and other is for damages in assumpsit); Kramer v. Kramer, 394 A.2d 577 (Pa. Super. 1978) (inapplicable when suit in assumpsit for damages and suit in equity to rescind contract arises from same contract); Raw, supra, (inapplicable when suits arise from same subject matter but one is in equity and the other in assumpsit for damages).

Because the claims made in the present action are not the same or substantially the same as those made in the federal action, the court declines the application of lis pendens.

C. Same relief

Finally, the court concludes that the relief sought in the present case and the federal action is not the same. First, the federal action seeks equitable relief whereas the present action seeks legal relief. In Raw, supra, the Pennsylvania Supreme Court held that assumpsit claims could not be abated when there was a pending equity action, despite the factual backgroundbeing identical. See also framer, supra, at 340. (“Generally, a pending equity action is deemed not to be the same as the corresponding legal action when the remedies being pursued are different, even if both actions arose out of the same factual situation.”)

In Koppenheffer, the court explained the differences between equitable and legal relief:

Ejectment is the proper form of action to recover possession of land. Specific performance is an equitable remedy which compels the performance of a contract in the precise terms agreed on, or such a substantial performance as will do justice between the parties under the circumstances.
Ejectment is on the law side of the court, and the complaint in equity asking for specific performance is on the equity side of the court. 40 Pa. D. & C. 2d at 263 (internal citations omitted).

Although not binding, the court finds this explanation compelling. Legal and equitable relief has long been considered separate and distinct from one another. In the present action, bank seeks legal relief in the form of ejectment. On the other hand, in the federal action, FHR seeks equitable relief in the form of specific performance, declaratory judgment, and injunctive relief against bank. Because the two forms of relief are different - legal versus equitable — the court finds lis pendens is inapplicable.

There is an alternative way to characterize the relief sought. It could likewise be considered either in personam or in rem. The different classification has no effect on the court’s opinion, though.

It is firmly settled that a prior suit in a state or federal court which does not deal, either actually or potentially, with specific property or objects, and in which nothing more than a personal judgment is sought, not only does not prevent another suit from being brought for the same cause in the court of the other jurisdiction, but does not even furnish ground for a plea in abatement to the second action. Thompson v. Fitzgerald, 329 Pa. 497, 505, 198 A. 58, 62 (1938) (citations omitted).

Here, the federal action is in personam whereas this court has in rem jurisdiction, as the property that is the subject of this suit, the res, is located within its boundaries. While the New York court may have jurisdiction over bank’s person, it does not have in rem jurisdiction over the property located in Pennsylvania. See Whitmer v. Whitmer, 365 A.2d 1316 (Pa. Super. 1976). Furthermore, it is “one of the oldest maxims” that equity acts in personam, and that “decrees against persons directing them to take certain action in respect to property are generally regarded as decrees in personam.” Atlantic Seaboard Natural Gas Co. v. Whitten, 173 A.305,306 (Pa. 1942). As discussed above, the relief FHR seeks in the federal action is equitable in nature. Therefore, the federal court has in personam jurisdiction.

Unless an [inpersonam] action pending in another state or another country reaches judgment, so as to come within the protection of the full faith and credit clause of the federal constitution, such action will not prevent the institution of an action in this state on the same cause and between the same parties. Singer v. Dong Sup Cha, 550 A.2d 791,792-93 (Pa. Super. 1988) (quoting P.L.E. Abatement and Revival § 5).

It is clear that a prior suit for personal judgment in federal court does not prevent another or require abatement for a second action brought in state court. See Thompson, supra; Singer, supra; Wilson v. Island Creek Coal Co., 40 Pa. D. & C. 2d 591. Therefore, the court refuses to apply the doctrine of lis pendens.

Although the court is satisfied that FHR failed to show the doctrine of lis pendens applies to the case, sub judice, the court notes its arguments fail for one other reason. It is “the settled law of the country, that the plea of lis pendens in another state is no defence to this [the later Pennsylvania] action.” Singer, supra, at 792 (quoting Smith v. Lathrop, 44 Pa. 326 (1863). See also 2 Standard Pa. Practice 2d § 12:17.

That said, courts still have the inherent power to stay a later proceeding until the first is resolved. Singer, supra, at 793; Norristown, supra, at 905. Although the identity test must be strictly complied with when a party is seeking dismissal of a later filed suit, strict compliance is not necessary when a party is seeking a stay. Crutchfield, supra. “The trial court need not...sanction the duplication of effort and waste of judicial resources that would result from allowing both cases to proceed simultaneously, in a race to judgment.” Singer, supra, at 793 (quoting Klein v. City of Philadelphia, 465 A.2d. 730, 731 (Pa. Commw. 1983).

While the court has the power to stay the proceeding, it declines to do so. Granting a stay in the proceeding would result in severe prejudice to bank. Its rights could be indefinitely tied up in the New York litigation, which involves Kerry, a party over whom it has no control.

II. Availability of a meritorious defense

Having determined the court will not grant FHR’s petition for either abatement or a stay, the court next considers whether FHR has stated a prima facie meritorious defense to bank’s complaint in confession of judgment in ejectment.

A. Agreement of sale

On August 31, 2009, bank and FHR entered into an agreement for the sale of real estate (hereinafter “sales agreement”). The sales agreement called for the sale of property, which is the subject of this suit, for a sum of $10 million. Sales agreement, p.7, section 3(a). One-quarter of the sale price, or $2.5 million, was to be payable to FOB at the time of closing. Id. at 8, Section 3(c). Closing was scheduled for no later than October 30, 2009. Id. at 9, Section 5(b). Closing could be modified by written agreement of the parties. Id. The sales agreement, likewise, could be modified by written agreement of all parties. Id. at 16, Section 18.

No closing occurred on October 30, 2009. There is no evidence indicating that the closing date was modified in writing. It is not contested that FHR never made the $2.5 million due under the sales agreement. Additionally, there is no indication that any other term of the sales agreement was modified in writing by all parties. Therefore, section 20 of the sales agreement discussing default by the buyer remains in full force:

In the event that closing does not occur on or before the closing date due to buyer’s default in the performance of the provisions thereof, seller may either (a) disregard such default and perform this Agreement by tendering title and the premises in return for the purchase price, or (b) terminate this agreement.... In the event seller elects option (b), there shall be no further liability or obligations on either of the parties hereto and this agreement shall become null and void.

As discussed above, closing did not occur on or before October 30, 2009, and no written agreement was reached between bank and FHR which would have modified this deadline. Because a contract for the sale of real property must be in writing to satisfy the Statute of Frauds, 33 P.S. § 1; 13 Pa. C.S. § 2201, even if the court accepts as true the allegation that there was an oral agreement between the parties, it is unenforceable.

Because the conditions set forth in the sales agreement did not occur and were not modified in writing, FHR was in default of its obligations. Pursuant to section 16 of the agreement, bank was free to terminate the agreement by written notice, which it did when it sent FHR a letter dated May 6, 2010. The letter clearly states that it constituted formal written notice to FHR that bank was considering it in default and terminating the sales agreement. Bank followed the procedures set forth in the sales agreement to have it declared null and void.

Therefore, any suggestion that FHR possessed the property because of the sales agreement that is null and void is rejected. The court finds the decision in Werdebach v. Abel, 276 Pa. 368 (1923), most on point. In Werdebach, a lease was signed simultaneously with a contract of sale to purchase the leased property within six months. Id. at 369. The sale was never consummated and three years later, the lessor sought possession. Id. The court held that “[t]he fact that a lease was executed tends to strongly negative the idea that appellant was in possession under the agreement.” Instead, the court found that appellant’s failure to tender the purchase money was determinative. Id. at 369-70.

Similar to Werdebach, a lease was entered at or near the time of the sales agreement. The existence of the second amendment to lease, the final written lease in a long series of written leases and extensions, strongly suggests that FHR was not in possession of the property. See Id. Also, the sales agreement called for $2.5 million to be tendered at the time of closing, which was scheduled for October 30, 2009. Neither $2.5 million was tendered nor did closing occur on that date. The sale was never consummated. Because of the default, bank was free to exercise its termination rights under the contract, which is effectively did.

B. Lease

In addition, the court finds that FHR has not shown it is not bound by the terms of the second amendment to lease, executed on August 31, 2009, between bank and FHR. In City of Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 223 (1961), the Pennsylvania Supreme Court reaffirmed what has been recognized as governing law:

When the defendant held over the law gave a choice of remedies to the landlord. He might have looked upon the tenant as a trespasser and summarily ejected him, or he might have treated him in holding over a tenant by sufferance, or he might have regarded the holding over as a continuance under the terms of the lease.

Bank could, therefore, choose any of the above three options when FHR remained in possession after the second amendment to lease expired on October 30, 2009. It has opted to treat FHR as a holdover tenant, and as such, hold FHR liable under the terms of the lease. See Reading Terminal Merchs. Ass’n v. Samuel Rappaport Assocs., 456 A.2d 552, 556 (Pa. Super. 1983) (holding the law implies a new lease on the same terms and subject to the same covenants and conditions as the original lease when a tenant holds over).

Also, the mere fact that bank elected to treat FHR as a holdover tenant does not preclude it from later exercising one of the other options. See Mack v. Fennell, 171 A.2d 844 (Pa. Super. 1961). In the case subjudice, bank elected at first to treat FHR as a holdover tenant under the same terms of the lease. Later, it elected to treat FHR as a trespasser and sought ejectment. Bank was entitled to do so.

Moreover, the second amendment to lease, as well as the first amendment and original lease, contained a confession of judgment clause which explicitly stated that no notice was required prior to entry of judgment. See second amendment to lease, p. 5, section 12 (“Remedies”). In section 14, FHR also waived “any and all notices required by the landlord/tenant act or other laws of the Commonwealth of Pennsylvania, including but not limited to notice to vacate leased premises upon the expiration of the term thereof.” Id. (“Waiver of Notice”) Both provisions are appear conspicuously in bold font, and immediately before the signature lines, there is another bold-faced warning that judgment for possession by confession may be entered without notice. Id. at 7. These provisions remain in force regardless of the lease’s status. See Zubik, supra, at 223 (rejecting argument that remedies under the lease cannot be resorted to by landlord after a lease has terminated). Because FHR is a holdover tenant and bound by the terms of the second amendment to lease, it is also bound to those provisions and no notice was required before confession of judgment.

Finally, the court notes that any payment made by or on behalf of FHR occurred after the May 6, 2010, letter. Because bank already set the eviction process in motion at that point and because there were no provisions allowing FHR to cure the default, such payment does not estop bank from moving forward with this action.

Based on the foregoing, the court enters the following:

ORDER

And now, September 3, 2010, following a hearing on defendant’s petition and upon consideration of briefs, it is the order of this court as follows:

1. As defendant failed to show that the elements of lis pendens have been satisfied, the court denies defendant’s petition to abate the present proceeding due to pendency of a prior federal action;
2. The court denies defendant’s petition seeking a stay of the present proceeding pending resolution of the federal suit;
3. Having failed to state any prima facie meritorious defenses to plaintiff’s complaint, the court denies defendant’s petition to open and/or strike judgment obtained by confession of judgment; and
4. The court lifts or dissolves any and all stays in connection with the confessed judgment in ejectment, permitting plaintiff to proceed immediately with execution on said judgment.

      . Despite this extension, FHR’s counsel still failed to timely file its brief with the court. Its brief was filed August 17, 2010.

      . Much of the analysis regarding whether the relief sought is the same is also applicable to whether the claims are the same. The court discusses it under the third prong of the identity test rather than the second merely because the court couches the analysis in terms of equitable versus legal relief. However, the court’s analysis could just as easily be couched in terms of whether the causes of action are legal or equitable in nature.

      . The court realizes there is some dispute as to whether the payment made was for rent or as payment on a loan held by bank. Because FHR could not cure its arrearages with payment after bank elected to proceed with eviction proceedings, this court need not determine what the payment was in fact for. Considering FHR’s allegations as true, that the loan was for rental arrearages, FHR still could not cure the default.


author: DANTOS, J,

text:
    Commonwealth v. Krause

      C.P. of Lehigh County,
    nos. 3984/2009 and 5428/2008.

      Joan L. Reinsmith, senior deputy district attorney, for Commonwealth.

      Joseph v. Sebelin Jr., for defendant.
    October 27, 2010
   DANTOS, J,

Defendant, Terry Lee Krause, has filed an appeal from this court’s order of August 23, 2010, which denied the defendant’s post sentence motions. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

The relevant facts are as follows: On July 1,2010, after a trial, a jury found the defendant guilty of the crimes of stalking (18 Pa. C.S.A. § 2709.1(a)(1)) and terroristic threats (18 Pa. C.S.A. § 2706(e)). Thereafter on August 11, 2010, this court sentenced the defendant to a term of state imprisonment of not less than one (1) year nor more than two (2) years on the charge of terroristic threats. On the same date, the defendant was sentenced to a term of state imprisonment of not less than two (2) years nor more than five (5) years on the charge of stalking, consecutive to the sentence imposed on the charge of stalking. The sentences imposed were beyond the aggravated range of the sentencing guidelines, but below the statutory mínimums and máximums. Thereafter, on August 17, 2010, the defendant filed a motion for post sentence relief pursuant to Pennsylvania Rule of Criminal Procedure Rule 720. This motion was denied by this court on August 23, 2010. Defendant’s within appeal followed on September 3, 2010.

On September 16, 2010, this court instructed the defendant to file of record and serve upon this court a concise statement of errors complained of on appeal no later than October 7, 2010, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). Defendant complied with this order. In his concise statement of errors complained of on appeal, the defendant asserts that: (1) this court committed an error of law and/or an abuse of discretion in sentencing the defendant for the crimes of terroristic threats and harassment [sic]; (2) the sentence was excessively harsh; and (3) this court erred in consolidating the within two separate criminal cases for trial. We cannot agree with the defendant’s assertions.

Challenging the Sufficiency of the Evidence

The defendant asserts that this court committed an error of law and/or an abuse of discretion in sentencing the defendant for the crimes of terroristic threats and stalking. While this allegation is vague, and amounts to only a bald assertion, this court will address a challenge to the sufficiency of the evidence in an abundance of caution.

A claim challenging the sufficiency of the evidence is a question of law which asserts that there is insufficient evidence to support at least one material element of the crime for which the defendant was convicted. Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). The standard for reviewing sufficiency challenges was explained in the following manner by the Superior Court of Pennsylvania:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Taylor, 831 A.2d 661, 663 (Pa. Super. 2003), quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

In addition, the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Commonwealth v. Hunzer, 868 A.2d 498, 505 (Pa. Super. 2005). Any doubts regarding a defendant’s guilt are properly resolved by the finder of fact unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact may be drawn from the combined circumstances. Id. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Id. If the finder of fact reasonably could have determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict. Id. at 506.

A “person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another.” 18 Pa. C.S.A. §2706(a)(l). Moreover, as used in this section, the term “communicates” means to convey “in person or by written or electronic means, including telephone, electronic mail, Internet, facsimile, telex and similar transmissions.” 18 Pa. C.S.A. §2706(e).

Furthermore, a “person commits the crime of stalking when the person engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person.” 18 Pa. C.S.A. §2709.1(a)(1).

In the instant case, the evidence established that Jamie Krause was married to the defendant, Terry Lee Krause, for sixteen (16) years when she filed for divorce in July of 2008. Despite having filed for divorce, Jamie Krause and the defendant continued to live in the marital residence located at 4561 Scheidys Road, North Whitehall Township, Lehigh County, Pennsylvania. (C. Ex. 4). However, after being served with the complaint in divorce, the defendant would not verbally communicate with Jamie Krause. The only means of communication was through a dry erase white board on the kitchen counter. The defendant left messages such as, “Good luck, this is just the beginning,” “Good luck, you are going to need it” and profanities. (C. Ex. 5; C. Ex. 6).

Not only did the defendant leave such written messages, but in October of 2008, the defendant pushed a television in front of the door to block Jamie Krause’s ingress into the residence. Additionally, on October 26, 2008, when Jamie Krause returned home she observed a Bursa Thunder 380 pistol in a box on the kitchen counter with bullets. (C. Ex. 1; C. Ex. 2) The next morning, after the defendant left the residence, the handgun and bullets were gone. Upon the defendant’s return to the marital residence that night at approximately 10:00 p.m., the pistol (without the box) and the bullets were again left on the kitchen counter. (C. Ex. 3)

Chris Depremio, defendant’s friend and co-worker at the Faulkner dealership located on Stoke Park Road in Bethlehem, Pennsylvania, spoke with the defendant on multiple occasions with regards to the defendant’s impending divorce. In September of 2008, the defendant told Mr. Depremio that his will was drafted in such a way that all of the marital assets would go to the surviving spouse, and upon the surviving spouse’s death, to either his daughter or Jamie Krause’s niece. The defendant then stated that it would be easier to shoot his estranged wife to inherit her share of the marital property, and then shoot himself, thereby leaving his assets to his daughter. In response, Mr. Depremio asked the defendant, “You would not do that?” The defendant did not verbally respond to this inquiry.

A couple of weeks after this conversation occurred, Mr. Depremio received a telephone call from the defendant. The defendant told him that he had purchased a gun at Cabela’s but was unable to get the slide to function. (C. Ex. 13) Again, Mr. Depremio sought reassurances from the defendant and asked, “You’re not going to do anything stupid with the gun?” After a pause, the defendant indicated that he had purchased the firearm for self defense. Troubled by the conversation, Mr. Depremio contacted Russell Gallante, another co-worker at the Faulkner dealership, to discuss the matter with him. It turned out that the defendant had spoken to Mr. Gallante concerning his divorce as well. Again, the main topic of discussion was the defendant’s concern that his daughter obtain the marital assets. The defendant reiterated that if Jamie Krause would die first, his daughter would be the beneficiary of his will. Mr. Gallante urged the defendant not to think that way and to not do “anything crazy.” Nevertheless, approximately two (2) weeks later, after the defendant had a telephone conversation with his daughter, the defendant stated to Mr. Gallante that he would not do anything stupid, but that he could not promise the same once his daughter got married in January of 2009.

In light of the foregoing, Mr. Depremio and Mr. Gallante decided to inform Jamie Krause of the conversations that transpired between the defendant and Mr. Depremio. Consequently, the next day, October 28, 2008, at approximately 6:00 a.m., Mr. Depremio and Mr. Gallante confronted Jamie Krause at her family-owned restaurant located on Route 309, Orefield. Jamie Krause was quite concerned and upset by what she had been told and she reported this to Trooper Richard Webb of the Pennsylvania State Police, Bethlehem barracks.

On the same day, Jamie Krause sought and was granted a protection from abuse order which excluded the defendant from the marital residence and provided a “no contact” provision with Jamie Krause. Nonetheless, on or about November 23, 2008, the defendant left an anniversary card on Jamie Krause’s vehicle. Additionally, Jamie Krause observed the defendant drive sit outside and ultimately drive by her parents’ home in December of 2008. The same day she witnessed the defendant drive by the marital residence when she was taking out the garbage cans. On December 16,2008, the defendant was found in contempt of the protection from abuse order. (C. Ex. 7)

Additionally, in January and/or February of 2009, Jamie Krause’s mail disappeared for approximately one (1) week. As a result, Jamie Krause watched her mailbox to determine the cause of the disappearance. Jamie Krause observed the defendant removing the mail from her mailbox. Furthermore, during these months, the defendant would drive past her home and follow her while driving. Moreover, Jamie Krause’s bird bath was vandalized at the marital residence, and her driveway sensors were stolen. Thereafter, on June 10, 2009, Jamie Krause’s garbage cans were stolen. On that same date, the defendant had contacted his mother-in-law to convey a message to Jamie Krause, as well as telephoned her three (3) times in the evening. (C. Ex. 8) Then, on July 7,2009, after hearing, the defendant was found in contempt of the protection from abuse order. (C. Ex. 9)

Despite this finding of contempt, the next day, July 8, 2009, at approximately 3:30 p.m., Jamie Krause saw the defendant driving his Silver Chevrolet Colorado on Scheidys Road, beeping the horn. On the night of July 9, 2009, Jamie Krause received three (3) telephone calls from a number that she did not recognize. (C. Ex. 10) Then on July 10, 2009, at 4:20 a.m., Jamie Krause received a telephone call from the same unknown numbers. (C. Ex. 10) This time a message was left by the defendant in which he was groaning and grunting. At 5:05 a.m., while Jamie Krause was pulling out of her driveway, she viewed the defendant in his car at the bottom of her driveway, traveling slowly. Jamie Krause proceeded to work, but encountered the defendant again honking his car horn and flashing his headlights. The defendant did not observe the traffic control devices and went through a stop sign, thereby nearly striking Jamie Krause’s vehicle. (C. Ex. 12) Jamie Krause contacted the Pennsylvania State Police.

Trooper Jay Splain of the Pennsylvania State Police responded to the dispatch of a violation of a protection of abuse order by the defendant. Trooper Splain met with Jamie Krause at a Hess Station on Route 309, where she was interviewed. Jamie Krause appeared to be distraught over the events that transpired. Trooper Jonathan Gerken was dispatched to the defendant’s residence located at 3240 Eisenhower Avenue, Allentown, Lehigh County. Trooper Gerken, along with Trooper Nederostok, located the silver Chevrolet Colorado a that address. The hood of the vehicle was warm to the touch, indicating that the vehicle had been driven recently. Additionally, the vehicle did not appear freshly washed. The defendant was taken into custody. At the Pennsylvania State Police barracks, the defendant provided a written statement of the incident at approximately 5:30 a.m. (C. Ex. 15) He indicated that at 5:00 a.m. he drove his vehicle to the Egypt Car Wash in Egypt, Pennsylvania. (C. Ex. 15) However, the car wash did not open until 6:00 a.m. (C. Ex. 15) There was no legitimate reason for the defendant to be in that area at that time.

Viewing all the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth, it is clear that the evidence was sufficient to enable a finder of fact to conclude that all the elements of the offenses were established beyond a reasonable doubt. Indeed, at the conclusion of the jury trial, the jury had no doubt that the defendant communicated a threat to commit a crime of violence with intent to terrorize Jamie Krause, and engaged in a course of conduct, including following Jamie Krause without proper authority, under circumstances which demonstrated an intent to place Jamie Krause in reasonable fear of bodily injury or to cause substantial emotional distress to her.

Challenging the Weight of the Evidence

The defendant asserts that this court committed an error of law and/or an abuse of discretion in sentencing the defendant for the crimes of terroristic threats and stalking. Again, because this allegation is so vague and provides this court with no basis for the challenge, this court, to be prudent, will address the issue of whether the verdict was against the weight of the evidence. This court notes that a motion alleging that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict, but contends that it is against the weight of the evidence. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000); Commonwealth v. Bennett, 827 A.2d 469, 481 (Pa. Super. 2003). Furthermore, a challenge that the verdict is against the weight of the evidence requires this court to conclude in its discretion that “the verdict is so contrary to the evidence as to shock one’s sense of justice.” Lyons, 833 A.2d at 258. Indeed, for a new trial to lie on a challenge that the verdict is against the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court.” Commonwealth v. Shaffer, 722 A.2d 195, 200 (Pa. Super. 1998). See also Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

From the evidence recounted above, it is reasonable to have concluded that the defendant communicated a threat to commit a crime of violence with intent to terrorize Jamie Krause, and engaged in a course of conduct, including following Jamie Krause without proper authority, under circumstances which demonstrated an intent to place Jamie Krause in reasonable fear of bodily injury or to cause substantial emotional distress to her. Accordingly, the defendant’s challenge to the weight of the evidence must fail.

Excessive Sentence

Next, the defendant argues this court erred in imposing an excessively harsh sentence. The defendant is challenging the discretionary aspects of sentencing. Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003). Initially this court notes that:

Sentencing is within the sound discretion of the sentencing judge, and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992)(enbanc). “To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive.” Commonwealth v. Gaddis, 432 Pa. Super. 523,639 A.2d462,469 (1994). Nevertheless, sentencing guidelines are merely advisory, and the court may, in its discretion, sentence outside the guidelines. When a trial court deviates from the guidelines, it must state its reasons for deviation on the record at the time of sentencing or in a contemporaneous written statement. Commonwealth v. Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994). The court must also consider the guidelines as a starting point and deviate so as to impose a sentence consistent with both the public’s safety needs and the defendant’s rehabilitative needs. Id.

Commonwealth v. Shaffer, 722 A.2d 195, 198-199 (Pa. Super. 1998). If “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable,” its responsibilities have been fulfilled and the appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d 1275, 1277 (Pa. Super. 1998).

In the instant case, the defendant’s sentences imposed were beyond the aggravated range, but set below the statutory minimum and statutory maximum. Therefore, the defendant’s sentence must be evaluated to determine if it was, “manifestly excessive.” To do so, the following considerations must be examined:

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court’s sentencing outside the guideline ranges, we look, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. 42 Pa. C.S.A. §9721(b). When the court so indicates, it may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as the court also states of record the factual basis and specific reasons which compelled him to deviate from the guideline range. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (citations omitted).

Moreover, “[i]t is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003). The defendant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408,411 (Pa. Super. 2005). Furthermore, a substantial question requires something more than an allegation that the sentences imposed are excessive or harsh. Ladamus, 896 A.2d at 595. Consequently, defendant’s assertion that this court abused its discretion by imposing an excessive and harsh sentence fails to present a substantial question to justify a review of his claim.

Additionally, even if the merit of the defendant’s sentencing claim were addressed, defendant’s argument must fail. The defendant’s sentence must initially be evaluated to determine if there was an abuse of discretion. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The standard of review has been explained in the following manner:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will notbe disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)(en banc).

Additionally, it is axiomatic that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court. Commonwealth v. Booze, 953 A.2d 1263, 1279 (Pa. Super. 2008). Long-standing precedent recognizes that 42 Pa. C.S.A. §9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. 42 Pa. C.S.A. § 9721. See also Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008); Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). “A challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence.” Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005). Indeed, the Superior Court of Pennsylvania has stated: “We see no reason why [a defendant] should be afforded a ‘volume discount’ for his crimes by having all sentences run concurrently.” Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214(1995).

This court considered all the required statutory factors in sentencing the defendant. Indeed, in imposing the defendant’s sentence, this court considered the “protection of the public, the gravity of the offense as it relates to the impact on the victim and the community, the defendant’s rehabilitative needs, and the sentencing guidelines.” 42 Pa. C.S.A. §9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).

In fashioning its sentence, this court considered the impact on the victim and the need to protect her from the defendant, the protection of the community, the fact that the defendant committed another offense while he was released on bail, and defendant’s numerous violations of protection from abuse orders directing him to refrain from contacting the victim. This court deemed that the guidelines do not adequately reflect the repetitive, obsessive and erratic behavior of the defendant.

Also, this court did not fail to consider mitigating factors, such as defendant’s lack of a violent criminal history. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (holding that where a pre-sentence report exists, there is a presumption that the sentencing judge was aware of and adequately considered information relevant to the defendant’s character, as well as any mitigating factors). This court thoroughly reviewed the pre-sentence investigation report prepared on July 30, 2010. This court was aware of the defendant’s age, defendant’s childhood and history of abuse, defendant’s prior suicide attempts, defendant’s history of residency, defendant’s prior criminal history, the recommendation of the Lehigh County Department of Adult Probation, defendant’s employment history and the facts elicited at the time of trial.

Using its discretion, this court imposed a sentence that was within the guidelines and within the law.

CONSOLIDATION OF CASES

Finally, the defendant contends in his concise statement of errors complained of on appeal that case no. 5428/2008 should have been tried separately from Case no. 3984/2009. The decision to sever offenses is within the sound discretion of the trial court and will be reversed only for a manifest abuse of discretion. Commonwealth v. Apollo, 542 Pa. 47, 665 A.2d 439 (1995). See also Commonwealth v. Collins, 703 A.2d 418, 422-423 (Pa. 1997). Rules of Criminal Procedure 582 and 583 govern the joinder and severance of offenses and defendants, and provide in relevant part as follows:

Rule 582. Joinder - Trial of Separate Indictments or Informations
(A) Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction.
Rule 583. Severance of Offenses or Defendants
The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

Pa. R.Crim.P. 582; Pa. R.Crim.P. 583. Reading these two Rules of Criminal Procedure together, the Supreme Court of Pennsylvania has set forth the following three (3) part test for deciding a motion to sever:

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and if the answer to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-497 (1988).

Pursuant to the Lark test, a court must first determine if the evidence of each of the offenses would be admissible in a separate trial for the other. Evidence of crimes other than the one in question is not admissible solely to show the defendant’s bad character or propensity to commit crime. Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275 (1991). However, evidence of other crimes is admissible to demonstrate motive; intent; absence of mistake or accident; a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or the identity of the person charged with the commission of the crime on trial. Id. Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts. Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005). In general, if evidence of one set of charges would be admissible at trial on the other, and if the defendant will not be unduly prejudiced by a joinder of the charges, then joinder of the charges is allowable and serves judicial economy. Commonwealth v. Spetzer, 722 A.2d 702, 714 (Pa. Super. 1998).

The defendant was charged with terroristic threats in case no. 5428/2008. In case no. 3984/2009, the defendant was charged with stalking. First, it was determined that the evidence of both of the offenses was admissible in a separate trial for the other. Indeed, evidence of distinct crimes is admissible to show a common plan, scheme or design embracing commission of multiple crimes or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. Newman, 598 A.2d at 278. The facts of these cases clearly demonstrated a continuing course of conduct by the defendant, and thus would have been admissible in a separate trial for the other. An underlying theme of both of these charges dealt with the defendant’s escalating aggressive behavior toward Jamie Krause. There was a sufficient nexus between the cases to constitute a chain or sequence of events that formed the history of the case, and was part of the natural development of the case.

Next, it was determined that the evidence of the different counts of the informations was capable of separation by the jury. Where a trial concerns distinct criminal offenses that are distinguishable in time, space and the characters involved, a jury is capable of separating the evidence. Collins, 703 A.2d at 423. In the instant case, the incidents involved separate events that occurred over a year time span. The first case stemmed from incidents that occurred from July of 2008 through October 28, 2008, and the second case occurred in July of 2009.

Lastly, the defendant was not prejudiced by the consolidation of these offenses. As the Pennsylvania Supreme Court states in Lark:

[t]he prejudice of which Rule 1128 [now rule 583] speaks is not simply prejudice in the sense that [defendant] will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule 1128 [now rule 583] speaks is, rather, that which would occur if the evidence tended to convict [defendant] only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence. Lark, 518 Pa. at 307, 543 A.2d at 499.

Additionally, the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial. This not grounds for severance by itself. Collins, 703 A.2d at 423. In the instant case, the defendant was charged with separate offenses that occurred over a year time span. There was no prejudice in permitting the jury to convict the defendant upon distinct, yet interrelated, evidence of those crimes.

Based on the foregoing, the defendant’s appeal should be dismissed.

      . The defendant was sentenced for terroristic threats and stalking. The defendant was not sentenced for harassment.

      . Barbara Kilmer, the Firearm Administrator at Cabela’s, indicated that on October 26, 2008, the defendant effectuated a legal firearms purchase from Cabela’s.

      . Trooper Webb interviewed Jamie Krause, as well as spoke with Mr. Depremio and Mr. Gallante via the telephone. Then Trooper Webb contacted the Office of the District Attorney to approve the charge of terrorist threats to be filed against the defendant. A warrant for the defendant’s arrest was prepared, and ultimately the defendant was apprehended. Trooper Webb went to the marital residence to retrieve the pistol purchased from Cabela’s, the ammunition and a rifle. Trooper Webb served the defendant with the protection from abuse order in prison. (C. Ex. 14; C. Ex. 16; C. Ex. 17)

      . Between October 28, 2008 and July 10, 2009, the Pennsylvania State Police responded five (5) times to incidents involving Jamie Krause and the defendant. Trooper Webb did not doubt the veracity of Jamie Krause’s statements, and he perceived her emotional state to be terrorized.