author: FINLEY, J.,

text:
    Leeder v. DeSimone

      Kenneth C. Russell, for plaintiff.

      Gavin R. Laboski, for defendants DeSimone.

      Barry DeGroot, for defendant Coldwell Banker.

      Daniel D. McCaffery, for defendant Arlington Capital Mortgage Coiporation.
    September 30, 2009
   FINLEY, J.,

Plaintiff, Rachel Leeder, appeals from this court’s order dated May 25, 2007, sustaining the preliminary objections of defendant, Arlington Capital Mortgage Corporation.

FACTUAL AND PROCEDURAL HISTORY

The instant action is based in part, upon an agreement of sale entered into on February 9,2006, between plaintiff and Raymond and Donna DeSimone, for the sale of real property located at 21 Maher Lane, Newtown, PA 18940. The agreement provided that the DeSimones would purchase the property for $1,265,000, with a closing date of August 30, 2006. Plaintiff averred that the agreement contained no resale contingency clause which would allow the DeSimones to void the agreement if they were unable to sell their present home.

Prior to the execution of the agreement, the DeSimones presented a pre-approval letter (dated February 9,2006) provided by defendant Arlington. As part of the agreement, the DeSimones were obligated to provide a mortgage commitment letter to plaintiff’s agent on or before March 15,2006, but failed to provide any such document by that date. On March 27, 2006, a commitment letter was submitted to plaintiff’s agent indicating that the DeSimones would have to sell their primary home in order to obtain a mortgage from defendant Arlington. Plaintiff asserts that these terms were in direct contradiction to the pre-approval letter and the agreement, which did not contain resale contingency clauses.

Plaintiff averred that in April 2006, the DeSimones informed plaintiff’s agent that they had to sell their Pocono real estate home in order to buy the property, which plaintiff avers did in fact occur. Upon the sale of the Pocono real estate, plaintiff avers that her agent contacted defendant Arlington who informed the agent that they are required to issue the “mortgage commitment based upon the way the applicant wants it written up” and that “Mr. DeSimone had requested his commitment be written up this way.”

On June 6,2006, the DeSimones requested that plaintiff relist the property in an attempt to find another buyer since they had not sold their primary home as of that date. On June 26, 2006, plaintiff informed the DeSimones of their failure to fulfill their contractual obligations under the agreement.

On October 16, 2006, plaintiff filed the instant complaint against defendant Arlington, pleading an action for breach of contract as a third-party beneficiary to a contract between the DeSimones and defendant Arlington. Plaintiff asserts this claim based upon the contradictory terms and conditions contained in the pre-approval and commitment letters issued to the DeSimones by defendant Arlington.

On November 22, 2006, defendant Arlington filed preliminary objections by way of demurrer to the complaint, asserting insufficient specificity and legal insufficiency. On May 25, 2007, after argument of counsel, said objections were sustained and the complaint was dismissed without prejudice.

On April 3, 2009, plaintiff filed a petition to discontinue action against the DeSimones and Caldwell Banker Hearthside — Washington Crossing. On April 22,2009, a rule to show cause was issued with a rule returnable date of May 11, 2009. On June 15, 2009, an order was issued making the rule absolute and plaintiff was granted leave to have the matter settled, discontinued, and ended as to the DeSimones and Coldwell Banker Hearth-side — Washington Crossing. Said order also deemed the May 25, 2007, order to be a final order for appeal purposes and thus, permitted plaintiff to now appeal the grant of defendant Arlington’s preliminary objections.

ISSUE PRESENTED

Appellant raises the following issue for consideration in the concise statement of matters complained of on appeal:

“Whether the court committed an error of law when it sustained preliminary objections in the nature of a demurrer of defendant, Arlington Capital Mortgage Corporation, and dismissed defendant from a breach of contract claim after finding plaintiff was not a third-party beneficiary to the commitment letter between the purchaser of real estate and their mortgage company.”

LEGAL ANALYSIS

Pennsylvania is a fact-pleading state in which a complaint must place the defendant on notice of what the plaintiff’s claim is, state the grounds upon which the claim rests and contain a summary of the essential facts that support the claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 298, 464 A.2d 1349, 1352 (1983).

It is well-settled that a preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient and such objections should be sustained if the plaintiff has failed to assert a legally cognizable cause of action. Strausser v. PRAMCO III, 944 A.2d 761, 764-65 (Pa. Super. 2008), citing Excavation Technologies Inc. v. Columbia Gas Company of Pennsylvania, 936 A.2d 111, 113 (Pa. Super. 2007); Kramer v. Dunn, 749 A.2d 984, 990 (Pa. Super. 2000). Where the complaint fails to set forth a valid cause of action, a preliminary objection in the nature of a demurrer is properly sustained. McArdle v. Tronetti, 426 Pa. Super. 607, 611, 627 A.2d 1219, 1221 (1993). On appeal, a trial court’s decision will be reviewed for error of law or abuse of discretion and absent those findings, the decision will not be reversed. In re Estate of Sauers, 971 A.2d 1265, 1272 (Pa. Super. 2009), citing Clemleddy Construction Inc. v. Yorston, 810 A.2d 693, 696 (Pa. Super. 2002), citing Denlinger Inc. v. Agresta, 714 A.2d 1048, 1050 (Pa. Super. 1998).

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008), citing Binswanger v. Levy, 311 Pa. Super. 41, 43, 457 A.2d 103, 104 (1983). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Id. The question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Wawa Inc. v. Alexander J. Litwornia & Associates, 817 A.2d 543, 544 (Pa. Super. 2003) (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996)). In making this determination, the trial court may only consider matters that arise out of the complaint itself and cannot supply a fact missing in the complaint. Binswanger v. Levy, 311 Pa. Super. 41, 43, 457 A.2d 103, 104 (1983).

The trial court is required to resolve the issues based solely on the pleadings, by examining the averments in the complaint, together with any documents or exhibits attached thereto, and should not consider testimony or additional evidence outside the parameters of the complaint. Id. The trial court must accept the material facts set forth within the pleading and all reasonable inferences deducible therefrom as true, in order to determine the sufficiency of the facts averred and whether the pleading would allow recovery if ultimately proven. The instant matter concerns a preliminary objection in the form of a demurrer whereby plaintiff’s breach of contract action was dismissed without prejudice for failure to state a cause of action.

First and foremost, “[a]s a general rule, an action on a contract cannot be maintained against a person who is not a party to the contract unless the plaintiff is a third-party beneficiary of the contract____” State Public School Building Authority v. Noble C. Quandel Co., 137 Pa. Commw. 252, 260, 585 A.2d 1136, 1140 (1991). (footnote omitted) In assessing whether plaintiff has cultivated a legally cognizable claim as a third-party beneficiary of the agreement between the DeSimones and defendant Arlington, we look to authority concerning the evolution of third-party beneficiary law in Pennsylvania.

Traditionally, our courts have held that a party does not become a third-party beneficiary to a contract unless both parties to the contract so intend and that intention is expressly indicated in the contract itself. See Scarpitti v. Weborg, 530 Pa. 366, 370, 609 A.2d 147, 149 (1992), citing Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950); see also, Manor Junior College v. Kaller’s Inc., 352 Pa. Super. 310, 313, 507 A.2d 1245, 1246 (1986). However, an exception to this rule was created by our Supreme Court after the adoption of section 302 of the Restatement (Second) of Contracts in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983).

Under section 302, a third party may have rights under a contract, even in instances where it is not expressly indicated, if it is in accord with the intention of the original contracting parties. Specifically, section 302 provides:

“(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if the recognition of a right to performance in the beneficiary is appropriate to effectuate the intentions of the parties either:
“(a) The performance of the promise will satisfy an obligation of the promise to pay money to the beneficiary; or
“(b) The circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance
“(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.” Restatement (Second) of Contracts, §302 (1979).

Our Supreme Court explains that “a party becomes a third-party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself. . . unless, the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance . . . .” Limbach Co. LLC v. City of Philadelphia, 905 A.2d 567, 573 (Pa. Commw. 2006) quoting Scarpitti v. Weborg, 530 Pa. 366, 372-73, 609 A.2d 147, 150-51 (1992). (emphasis in original)

First and foremost, we begin our discussion by noting that the complaint is unclear as to what specific contract defendant Arlington breached and is void of any reference about the terms of said contract. The only contract specifically named by plaintiff concerns the agreement of sale — a contract that was executed by plaintiff and the DeSimones, and to which defendant Arlington was never a party.

However, assuming that plaintiff is in fact referring to the prospective loan transaction between defendant Arlington and the DeSimones via the commitment letter issued, plaintiff attempts to set forth a cause of action for breach of contract as a third-party beneficiary with the following relevant averments:

“(34) The pre-approval letter stated that the DeSimones had ‘requested that we send you this letter as evidence of [the DeSimones] ability to purchase a price not to exceed $1,450,000 using financing up to $1,200,000.’
“(35) The pre-approval letter stated that it was [defendant Arlington’s] ‘opinion that [the DeSimones were] financially capable of purchasing this home according to the terms of the contract for purchase discussed.’
“(38) [Defendant Arlington] encouraged the DeSimones to provide the pre-approval letter to the seller to ‘give them comfort’ that you have a bona-fide intent to purchase the home subject to the execution of the agreement to purchase.
“(39) As a result of the express terms of [defendant Arlington’s] pre-approval letter, [plaintiff] became a third-party beneficiary of the transaction between [defendant Arlington] and the DeSimones.
“(40) Most importantly in the pre-approval letter, [defendant Arlington] indicated that the offer ‘was not contingent upon the sale of any real estate.’
“(42) After the pre-approval letter was written, the DeSimones were able to sell one of their pieces of real estate, which made the funds that were previously tied up in real estate ‘liquid’ which actually improved their financial situation to purchase the [plaintiff’s] property.
“(43) Despite the improvement in the DeSimones’ financial situation, after the agreement of sale was executed, [defendant Arlington] failed to provide the [DeSimones] with a commitment letter consistent with the pre-approval letter.
“(44) After the execution of the agreement of sale, the DeSimones actively worked with [defendant Arlington] and instructed them to provide a commitment, letter which would not meet the terms of the agreement of sale.
“(45) Specifically, the commitment letter issued on March 27, 2006, did not satisfy the mortgage terms as stated in paragraph 6(A) of the agreement of sale.
“(46) Further and directly contrary to the agreement of sale, the commitment letter required the sale of the DeSimones’ present home.
“(47) It is believed and therefore averred that the DeSimones and [defendant Arlington] actively created the terms of the commitment letter knowing that said terms protected the DeSimones from the DeSimones’ obligations under the agreement of sale and it provided the DeSimones an ability to get out of the agreement of sale.
“(48) It is believed and therefore averred that the DeSimones dictated the terms of the commitment letter and [defendant Arlington] moved forward to blindly agree to those dictated terms despite its pre-approval letter which provided different terms to the DeSimones.
“(49) Plaintiff was a third-party beneficiary to the agreement between the DeSimones and [defendant Arlington].
“(50) [Defendant Arlington] breached the agreement with the DeSimones and [plaintiff], as a third-party beneficiary was harmed as a result thereof.”

Plaintiff does not attach any exhibits evidencing a contract by the DeSimones and defendant Arlington to the complaint. Rather, to support this action plaintiff appends copies of the pre-approval and commitment letters. The pre-approval letter provided in full:

“Windsor Financial Mortgage Corporation (defendant Arlington) is currently working on your file and has Pre Approved you for a mortgage loan for the purchase of the above property through Windsor Financial’s (defendant Arlington) Underwriting System. You have requested that we send you this letter as evidence of your financial ability to purchase a price not to exceed $1,450,000 using financing up to $1,200,000. Based on preliminary assessment of your credit, along with information presented, but not yet verified, regarding income and assets available, it is our opinion that you are financially capable of purchasing this home according to the terms of the contract for purchase discussed.
This opinion is based on the preliminary information presented by you and should not be construed as our commitment to make the financing package available until all information has been verified and assessed by our underwriter. Please feel free to give this opinion letter to the seller or their representatives to give them comfort that you have a bona-fide intent to purchase the home subject to the execution of the agreement to purchase and other customary provisions in such transactions. Please note that this offer is not contingent upon the sale of any real estate. A commitment letter will be made available to you upon completion of the processing and underwriting of the loan package. This offer is not contingent upon the sale of any property.” (emphasis added)

Under the traditional view of third-party beneficiary law, plaintiff has failed to plead a legally cognizable cause of action as the pre-approval letter is void of any language that either of the parties to the loan transaction expressly intended to make plaintiff a third-party beneficiary to the contract. First, the letter is clearly addressed to “Raymond and Donna DeSimone” concerning property which is “to be determined” and lacks any reference to the property or plaintiff. Furthermore, aside from containing no reference to plaintiff or the property, the letter also makes clear that the opinions and statements contained therein are based entirely upon preliminary information and assessments and should not be construed as being a commitment to execute the prospective mortgage loan. Subsequently, the loan transaction was never completed between the DeSimones and defendant Arlington.

Also in support of her action, plaintiff attaches the commitment letter given to the DeSimones, in which defendant Arlington included the following condition:

“You (the DeSimones) must sell your current property located at 466 Pineville Rd. Newtown, PA. A fully executed copy of the FíUD-1 settlement... on that property, reflecting net proceeds of at least $5 86,174 must be provided at or prior to your settlement with us (defendant Arlington). You must either pay off your present mortgage loan(s) with or provide satisfactory proof of assumption, at or prior to your settlement with us.”

Plaintiff avers that this condition in the commitment letter issued by defendant Arlington was in direct contradiction to both the pre-approval letter and the agreement of sale previously executed, therefore constituting a breach of contract to which she was a third-party beneficiary. However, while the commitment letter does at least reference the property at issue, it is clearly void of any express language that plaintiff is to be a third-party beneficiary of the prospective loan transaction detailed therein. Furthermore, the complaint is void of specific averments wherein plaintiff is afforded such status, making it evident from these exhibits that plaintiff’s claim of said beneficiary status is not premised on the actual terms of the contract or any other express intention of the parties to make plaintiff a third-party beneficiary.

Since the terms of the exhibits are not dispositive of plaintiff’s status, we shift our analysis to whether the cause of action is legally cognizable under the section 302 of the Restatement (Second) of Contracts, as adopted by our Supreme Court in Scarpitti, whereby a person may obtain status as a third-party beneficiary when the “circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance.” See Scarpitti v. Weborg, 530 Pa. 366, 373, 609 A.2d 147, 151 (1992); Restatement (Second) of Contracts, section 302 (1979).

As a preliminary matter, we stress that plaintiff does not set forth any averments as to her status as an intended third-party beneficiary under section 302, but rather specifically asserts that she attained such status through the express terms of the pre-approval letter. That aside, we address the sufficiency of the action under section 302 and while plaintiff may have been a future beneficiary of the proposed loan transaction between the DeSimones and defendant Arlington, the fact remains that plaintiff still failed to aver what contract defendant Arlington breached and thus, plaintiff does not assert a legally cognizable cause of action. The complaint also lacks sufficient specificity as to how plaintiff became a third-party beneficiary to this contract; a contract that was never actually executed between defendant Arlington and the DeSimones.

We note that plaintiff’s claim is largely premised on language contained in the pre-approval and commitment letters provided by defendant Arlington, yet plaintiff fails to aver how the contradictory terms actually resulted in defendant Arlington breaching a contract to which she was a third-party beneficiary. The pre-approval letter addressed to the DeSimones explicitly states that it is “based on the preliminary information . . . and should not be construed as [a] commitment to make the financing package available until all information has been verified and assessed by [the] underwriter.” Thus, in response to the preliminary objections filed by defendant Arlington, we determined based upon our assessment of the complaint and our understanding of the law, that plaintiff had not pled sufficient facts to maintain a cause of action as a third-party beneficiary, and concluded that said objections were to be sustained and we dismissed the complaint without prejudice.

CONCLUSION

As filed, the complaint did not contain a summary of essential facts and grounds to assert a breach of contract action against defendant Arlington and we conclude that plaintiff failed to set forth a legally cognizable cause of action under the law to recover as a third-party beneficiary. Plaintiff failed to aver with sufficient specificity which contract was breached and how she became a third-party beneficiary to said contract between defendant Arlington and the DeSimones based upon the language contained in the pre-approval and commitment letters. Both letters are void of any terms contemplating plaintiff as a beneficiary and thus as a result, defendant Arlington’s objections were sustained and the complaint was dismissed without prejudice.

      . Attached as exhibit C of plaintiff’s complaint.

      . Exhibit B of plaintiff’s complaint.


source: Caselaw Access Project

author: NEALON, J,

license: Public Domain

text:
    Pachucy v. Nutrition Inc.

      Carl J. Guagliardo, for plaintiffs.

      Michael J. Betts, for defendant.
    July 30, 2009
   NEALON, J,

A Lackawanna County vendor who served as the Mid Valley School District’s food services provider for 20 years has filed this tort action charging his competitor with intentional interference with prospective contractual relations. The local contractor maintains that his competitor wrongfully secured the 2008-2009 food services contract with the Mid Valley School District after it directly violated the bid solicitation procedures by improperly providing complimentary dinners, cruises and other forms of entertainment to seven school directors and their family members during taxpayer financed conferences in San Francisco and Orlando.

The defendant competitor has presented preliminary objections seeking to dismiss this case for failure to adequately plead the essential elements of a claim for intentional interference with prospective contractual relations. Plaintiff has adequately alleged a reasonable likelihood or probability that he would have obtained the food services contract at issue since the complaint avers that (1) the plaintiff and the defendant were the only contract bidders, (2) the plaintiff’s existing contract had a remaining one-year renewal option available, (3) the bid solicitation procedures expressly prohibited the school directors from accepting “anything of monetary value” from a potential contractor, (4) a slim majority of the school board subjectively graded the competing bids submitted by the plaintiff and the defendant, and awarded the food services contract to the defendant shortly after receiving the improper gifts, and (5) the plaintiff suffered lost contractual profits as a result of the defendant’s wrongful conduct. Consequently, for the reasons set forth below, the preliminary objections will be overruled.

I. FACTUAL BACKGROUND

Plaintiff George Pachucy d/b/aFood Contract Services and defendant Nutrition Inc. are both engaged in the business of providing food contract services to school districts. (Docket entry no. 7, ¶¶ 1 -3, 7.) During the 20-year period from 1988 to 2008, Pachucy acted as the food services provider for Mid Valley School District. (Id., ¶9.) In 2004, Pachucy was awarded the Mid Valley food services contract for the period from July 1, 2004 to June 30,2005 pursuant to a written agreement which provided for four one-year renewals of the contract by mutual agreement of the parties. As of July 2007, Mid Valley and Pachucy had exercised three of the four one-year renewals, thereby extending Pachucy’s food services contract through June 30, 2008. (Id., ¶¶10-15.)

Pachucy avers that after July 2007, three Mid Valley School Directors and their family members attended the National School Boards Association (NSBA) conference in San Francisco and “accepted a gift from defendant Nutrition Inc. consisting of a dinner cruise.” (Id., ¶¶16-17.) Pachucy submits that the complimentary dinner cruise constituted “a gift of monetary value offered by defendant Nutrition Inc., a potential food services contractor” for Mid Valley. (Id, ¶18.) Subsequent to that NSBA conference, the Mid Valley School Board decided, by a majority vote, “to advertise for new requests for proposal for the food services contract” for the 2008-2009 school year, “despite the existence of one more year of available contract renewal” with Pachucy. (Id., ¶19.)

One month later, seven Mid Valley School Directors and 10 of their family members attended another NSBA conference in Orlando, Florida, at which time they reportedly “accepted gifts of monetary value from defendant Nutrition Inc.” (Id., ¶¶20-21, 24.) Specifically, Pachucy maintains that seven Mid Valley School Directors and 10 of their family members “accepted a gift from defendant Nutrition Inc., consisting of a luau dinner show held at Discovery Cove,” and that “at least six” Mid Valley School Directors “along with at least four of their family members accepted a gift from defendant Nutrition Inc., consisting of a dinner held at the Hard Rock Hotel, paid for and attended by defendant Nutrition Inc., a potential contractor.” (Id., ¶¶27-28.)

Within one month of their return from the Orlando conference, the Mid Valley School Directors “published an advertisement for requests for proposal for the food services contract for the following five years.” (Id., ¶29.) Pachucy and Nutrition were the only two food services contractors who submitted bids in response to that advertisement. (Id, ¶30.) The written bid solicitation procedures for the Mid Valley food services contract expressly state that the Mid Valley School Directors “shall neither solicit nor accept gratuities, favors, nor anything of monetary value from contractors nor potential contractors” of the school district. (Id, ¶¶29, 32, exhibit B, p. 4 of 56.) In July 2008, “by a 5-4 majority vote, the Mid Valley Board of Education awarded the 2008-2009 food services contract, with options for four one-year renewals, to Nutrition Inc.” (Id, p. 31.)

Pachucy asserts that “[t]he Mid Valley Board of Education accepted personal gifts of monetary value from a potential contractor, Nutrition Inc., whose bid was received shortly after the gifts were accepted, in direct contravention of the express terms of [Mid Valley’s] bid solicitation and food services contract with Nutrition Inc.” (Id, ¶34.) On October 28, 2008, Pachucy filed a complaint against Mid Valley and Nutrition seeking declaratory judgment relief, as well as monetary damages from Nutrition. In Count I of the complaint, Pachucy alleged that Nutrition “submitted a bid proposal for the food services contract when it knew its actions in providing board members with gifts of monetary value were in direct contravention of both the bid proposal and subsequent contract,” while Mid Valley “accepted and acted upon a bid proposal from Nutrition Inc. when seven board members had direct and recent knowledge” that Nutrition’s bid violated Mid Valley’s bid solicitation requirements. (Id, ¶¶40-41.) For that reason, Pachucy originally requested a judicial declaration (1) voiding Nutrition’s bid and the Mid Valley-Nutrition contract and (2) directing that the food services contract be awarded to Pachucy as “the only remaining responsible bidder.” (Id., ¶46.)

In Count II of the complaint, Pachucy advances a claim against Nutrition only for intentional interference with Pachucy’s actual or prospective contractual relationship with Mid Valley. To that end, Pachucy avers that by virtue of Pachucy’s remaining one-year contractual renewal for the July 1, 2008 to June 30, 2009 school year, Pachucy “had an actual and prospective contractual relationship with the Mid Valley School District” through 2009. (Id., ¶48.) Pachucy alleges that Nutrition improperly provided “gifts of monetary value to members of the Mid Valley Board of Education and their family members ... without privilege or justification” with the specific intent to induce Mid Valley not to perform or renew its contract with Pachucy. (Id., ¶¶49-52.) Finally, Pachucy posits that Nutrition’s wrongful conduct has caused Pachucy to suffer “pecuniary loss” and lose “contractual profits.” (Id., ¶¶53-54.)

Mid Valley and Nutrition filed preliminary objections seeking to dismiss Pachucy’s request for declaratory judgment relief on the ground that a disappointed bidder who is not a taxpayer residing within the geographic boundaries of the governmental defendant does not have standing to challenge the award of a public contract to another bidder. See Quinnan v. Parking Authority of City of Scranton, 102 Lacka. Jur. 632, 639-40 (2001); Petty v. Scranton School District, 101 Lacka. Jur. 137, 139 n.1 (1999). Nutrition also demurs to Pachucy’s tort claim and asserts that Pachucy has failed to adequately plead the essential elements of a cause of action for intentional interference with actual or prospective business relations. (See docket entry nos. 8-9, 16.) On April 24, 2009, Pachucy filed a “praecipe for partial discontinuance” voluntarily withdrawing any claims for declaratory judgment relief, and in the process, dismissing Mid Valley from this lawsuit. (Id, no. 21.) Thus, the sole issue remaining to be decided concerns the viability of Pachucy’s claim against Nutrition for intentional interference with contractual relations.

II. DISCUSSION

(A) Standard of Review

In support of its demurrer to Pachucy’s tort claim, Nutrition contends that Pachucy has neglected to allege “an existing contractual relationship” or a “reasonable likelihood or probability of a prospective contractual relationship” with Mid Valley so as to state a cognizable claim for interference with existing or prospective contractual relations. (Docket entry no. 17, p. 7.) Nutrition further argues that Pachucy has failed to properly plead resulting damages inasmuch as Mid Valley’s School Board “was free to renew or not renew [Pachucy’s] contract for the 2008-2009 school year as it saw fit.” (Id., p. 8.) Pachucy counters that there was a reasonable likelihood of a prospective contractual relationship with Mid Valley at the time of Nutrition’s tortious conduct since Pachucy “had an already existing, decade long contractual relationship with Mid Valley,” including an option to renew for the 2008-2009 school year. (Id, no. 20, pp. 10-11.) Pachucy submits that the bidding process allowed “the school directors to ‘grade’ each of the bidders by subjectively assigning points” for certain factors and that Nutrition provided those school directors with prohibited gifts in an effort to unduly influence their subjective rating system. (Id., pp. 8-9.)

When considering preliminary objections, the court must determine whether it is clear and free from doubt, based upon the facts alleged in the complaint, that the plaintiff is unable to state a cause of action under the governing law. Commonwealth ex rel. Corbett v. Locust Township, 600 Pa. 533, 542, 968 A.2d 1263, 1269 (2009). In making that determination, all material facts averred in the complaint, and all reasonable inferences that can be drawn from those averments, are admitted as true. Lugo v. Farmers Pride Inc., 967 A.2d 963, 966 (Pa. Super. 2009). Preliminary objections in the nature of a demurrer “may only be sustained where it is established with certainty that recovery is not possible.” Quest Land Development Group LLC v. Township of Lower Heidelberg, 971 A.2d 540, 543 (Pa. Commw. 2009). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Association of Settlement Companies v. Department of Banking, 977 A.2d 1257 (Pa. Commw. 2009).

(B) Intentional Interference With Contractual Relation

To establish a cause of action for intentional interference with an existing contractual relationship, a plaintiff must demonstrate: (1) the existence of a contractual relationship between the plaintiff and a third party; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of privilege or justification on the part of the defendant; and (4) actual damage to the plaintiff as a result of the defendant’s conduct. Phillips v. Selig, 959 A.2d 420, 429 (Pa. Super. 2008), appeal denied, 600 Pa. 764, 967 A.2d 960 (2009). The tort of intentional interference with a prospective contractual relation requires proof of: (1) a prospective (rather than an existing) contractual relation between the plaintiff and a third party; (2) purposeful action on the part of the defendant specifically intended to prevent a prospective relation from occurring (as opposed to harm an existing relation); (3) the absence of privilege or justification on the part of the defendant; and (4) actual damage resulting from the defendant’s conduct. Blackwell v. Eskin, 916 A.2d 1123, 1127-28 (Pa. Super. 2007); Reading Radio Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003), appeal denied, 577 Pa. 723, 847 A.2d 1287 (2004).

Pachucy initially averred that he “had an actual and prospective contractual relationship with the Mid Valley School District for the school years 2004 through 2009.” (Docket entry no. 7, ¶48.) Nutrition demurred to Pachucy’s tort claim on the basis that Pachucy cannot establish an existing or prospective contractual relation with Mid Valley beyond June 30,2008, nor can Pachucy demonstrate actual damage resulting from Nutrition’s conduct. In Pachucy’s brief in opposition to the preliminary objections, Pachucy tacitly concedes the absence of an existing contractual relation which Nutrition allegedly intended to harm and instead argues that he has properly averred a prospective contractual relation with Mid Valley that Nutrition specifically intended to prevent from occurring. (Id., no. 20, pp. 10-11.) Therefore, we need only address whether Pachucy has sufficiently alleged the elements of a cause of action for intentional interference with a prospective contractual relation.

With regard to Nutrition’s first contention, Pennsylvania courts have recognized that “[djefining a ‘prospective contractual relationship’ can be difficult.” Phillips, 959 A.2d at 428. In Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979), the Supreme Court of Pennsylvania noted that the phrase “has an evasive quality, eluding precise definition” and “is something less than a contractual right, [but] something more than a mere hope.” Id. at 209, 412 A.2d at 471. Similarly, in finding that the plaintiff had sufficiently alleged a prospective contractual relation, the court in Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971) reasoned:

“It is true that there could be no guarantee of [the third party’s] reaction to any offer that might be submitted, and it of course was under no compulsion to deal with either [plaintiff] or [defendant]. But anything that is prospective in nature is necessarily uncertain. We are not here dealing with certainties, but with reasonable likelihood or probability. This must be something more than a mere hope or the innate optimism of the salesman.” Id, at 480, 272 A.2d at 898-99. Accord, Infosage Inc. v. Mellon Ventures L.P., 896 A.2d 616, 627-28 (Pa. Super. 2006).

In determining the “reasonable likelihood or probability” of a prospective contractual relationship, courts must apply an objective standard. Thompson Coal Company, 488 Pa. at 209, 412 A.2d at 471 (citing Glenn, supra at 481, 272 A.2d at 899); Phillips, supra. To satisfy that objective test for a prospective contractual relation, Pachucy must ultimately prove that “but for” the wrongful acts of Nutrition, there was a reasonable probability that Pachucy would have obtained Mid Valley’s food services contract for the 2008-2009 school year. See Blackwell, 916 A.2d at 1128 (“our Supreme Court has explained that the rule to be applied ... is whether ‘but for the wrongful acts of the defendant,’ it is reasonably probable that the plaintiff would have established a contractual relation.”); Santana Products Inc. v. Bobrick Washroom Equipment Inc., 401 F.3d 123, 140 (3d Cir. 2005) (“To determine whether Santana had a prospective contractual relation with [the third party], Santana must show that an issue of fact exists as to whether, but for Bobrick’s ‘fire scare’ campaign, there was a reasonable probability that Santana would secure a contract from [the third party].”), cert. denied, 546 U.S. 1031 (2005).

By way of illustration, the contractor (Santana) in Santana Products sought to bid on a contract for high density polyethylene (HDPE) toilet partitions and provided the project architect with samples of HDPE. Bobrick, a competing manufacturer of toilet partitions composed of phenolic, furnished the project architect with a videotape that reportedly demonstrated that the FIDPE partitions could be a fire hazard. After viewing the videotape and conducting a fire test on samples of HDPE and phenolic, the architect changed the contract specifications to phenolic partitions, and the contract was ultimately awarded to another supplier of phenolic partitions, Penner Partitions. Santana Products, 401 F.3d at 140.

Santana sued Bobrick for intentional interference with prospective contractual relations and alleged that it was reasonably probable that Santana would have obtained the contract but for Bobrick’s “fire scare” tactics since Santana had almost 60 percent of the HOPE market and the contract initially specified HOPE partitions. In affirming the dismissal of Santana’s claim, the U.S. Court of Appeals for the Third Circuit noted that Santana had simply been denied an opportunity to bid because Bobrick had ostensibly persuaded the architect to change the contract specification to phenolic. More importantly, the Santana Product court concluded:

“However, even if Santana had had the opportunity to bid, one of the two other suppliers of HDPE partitions— Capital Partitions or Comtec — could still have obtained the contract. There is no evidence that Santana would be the winning bidder. The problem with obtaining a government contract in this situation is demonstrated by the fact that [the third party] did not in fact award the contract to Bobrick.” Id., at 141. Accord Infosage Inc., 896 A.2d at 628.

In contrast, Pachucy and Nutrition were the only bidders for the Mid Valley food services contract in question, and if Nutrition had not been awarded that contract by the school directors’ narrow vote of 5 to 4, Pachucy would have obtained that contract. It is true that Pachucy’s longstanding contractual relationship with Mid Valley, standing alone, is insufficient to establish a prospective contractual relationship. See Acumed LLC v. Advanced Surgical Services Inc., 561 F.3d 199, 213 (3d Cir. 2009) (“a plaintiff must base its claim that there was a prospective contractual relationship on something other than an existing or current relationship.”); Phillips, 959 A.2d at 429 (“an assumption of a future contractual relationship based upon evidence of an existing contractual relationship ... alone is insufficient as a matter of law to establish a ‘prospective contractual relationship.’”), (emphasis in original) However, Pachucy has averred more than a past contractual relationship as the basis for a reasonable likelihood or probability of a prospective contractual relationship. Pachucy asserts, and we must accept as true for purposes of a demurrer, that Nutrition’s improper gifts to seven of the Mid Valley School Directors and their family members caused those school directors to skew their subjective grading of the competing bids and inappropriately award the food services contract to Nutrition by a single vote plurality. Pachucy further maintains that but for that misconduct by Nutrition, there was a reasonable probability that Pachucy would have secured the food services contract for the 2008-2009 school year. Based upon the totality of the circumstances averred in the complaint, Nutrition has not established that it is clear and free from doubt that Pachucy will be unable to prove a prospective contractual relationship under the applicable law.

Nutrition’s remaining objection regarding the fourth criterion may be summarily denied. Pachucy distinctly avers in the complaint that Nutrition’s tortious actions caused Pachucy to suffer “pecuniary loss” and lose “contractual profits” that he would have realized if he had been awarded the 2008-2009 contract. Contrary to Nutrition’s contention, Pachucy has in fact averred actual damage as a result of Nutrition’s conduct. Therefore, Nutrition’s preliminary objections will be overruled.

ORDER

And now, July 30, 2009, upon consideration of the preliminary objections of defendant Nutrition Inc., the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s preliminary objections to the complaint are overruled; and

(2) Within the next 20 days, defendant Nutrition Inc. shall file a responsive pleading to the complaint.

      . Nutrition only challenges the first and fourth elements of the “intentional interference with prospective contractual relation” test and does not contend that its actions in providing complimentary dinners and entertainment to school directors and their families were privileged or justified, presumably because the bid solicitation procedures expressly prohibit any directors from accepting “anything of monetary value” from potential contractors. See Accumed, 561 F.3d at 215 (stating that under the Pennsylvania standard derived from the Restatement (Second) of Torts §768, a competitor improperly interferes with anther’s existing or prospective contractual relationship if, inter alia, it employs “wrongful means.”); Phillips, 959 A.2d at 430 (examining the Restatement approach and stating “that the central inquiry is whether the defendant’s conduct is sanctioned by the ‘rules of the game’ which society has adopted”).


author: NANOVIC, P.J.,

text:
    Chimenti v. Hernandez

      Joseph J. Matika, for plaintiff.

      Arthur F. Silverblatt, for defendant.
    June 24, 2009
   NANOVIC, P.J.,

In this divorce action the issue before us is whether the actions of a nonresident spouse imply consent or constitute a waiver to the exercise of this court’s personal jurisdiction over her.

PROCEDURAL AND FACTUAL BACKGROUND

John F. Chimenti (Flusband) and Sonia Y. Fiernandez (Wife) were married on September 26,1993, in the state of New York. They lived together in New York their entire married life until their separation in 2005. At that time, Husband left the marital home and moved to Pennsylvania where he established legal residence.

On December 31, 2007, Husband commenced a divorce action in this county. The original complaint, which was limited to a single claim for divorce pursuant to section 3301(d) of the Divorce Code, was served constructively on Wife by certified mail on or before January 10,2008. An amended complaint, which included anew count for equitable distribution of the marital assets, was filed on April 3, 2008. This complaint was served by first-class mail on Wife’s then New York counsel.

By order dated April 29, 2008, we scheduled a management conference to be held on June 19, 2008. Following this order, on June 18, 2008, Wife’s present counsel entered his appearance on behalf of Wife and also requested that the management conference scheduled for June 19, 2008, be continued. The basis for this request was counsel’s assertion that he had only recently entered his appearance on behalf of Wife and needed time in order to familiarize himself with the file. This continuance request was granted and the management conference was rescheduled for July 28, 2008.

On July 28,2008, both parties appeared through counsel and advised the court that discovery was necessary and that they sought to serve interrogatories and a request for production of documents on one another within the next 30 days. This time frame was approved by the court and adopted in our order dated July 29, 2008.

In accordance with the parties’ agreed discovery period, Wife served interrogatories on Husband on July 29, 2008, which were answered by Husband on August 15, 2008. Wife also submitted a request for production of documents to Husband on August 29, 2008, which was answered on October 1,2008. Husband served his interrogatories and request for production of documents on Wife on July 31, 2008. Wife has not responded to this discovery.

On October 15,2008, Wife filed preliminary objections to the amended complaint nunc pro tunc. In these objections, Wife challenges the jurisdiction of this court to entertain Husband’s claim for equitable distribution. Prior to this filing, Wife did not file an answer to the complaint or otherwise object to the divorce proceedings. Husband has filed preliminary objections to Wife’s preliminary objections contending Wife’s objections are untimely and the issue waived. The aforesaid objections of the parties are now before us for resolution.

DISCUSSION

To begin, Wife does not contest the jurisdiction of this court to adjudicate Husband’s right to a divorce, nor could she successfully. “Jurisdiction over a divorce is a function of the domicile of the individuals involved in the divorce.” Sinha v. Sinha, 834 A.2d 600, 603 (Pa. Super. 2003), appeal denied, 577 Pa. 725, 847 A.2d 1288 (2004); see also, Williams v. North Carolina, 317 U.S. 287, 297-99 (1942). Here, it is not in dispute that Husband is domiciled in Pennsylvania and Wife in New York. Accordingly, both New York and Pennsylvania share jurisdiction for purposes of granting a divorce to the parties.

Wife argues, however, that it does not necessarily follow from this court’s jurisdiction to terminate the marriage that it also has jurisdiction to decide the rights of the parties in every other matter ancillary to divorce, such as alimony or, as in this case, the equitable distribution of marital assets. In Estin v. Estin, 334 U.S. 541, 548-49 (1948), the United States Supreme Court held that while jurisdiction may lie with respect to terminating a marriage, the court may not necessarily have jurisdiction over the economic claims relating to the marriage. In certain cases, predominately those where the spouses reside in different states, and the divorce action is commenced in one state and the marital assets are located in another, in the absence of in personam jurisdiction, the court in which the action is commenced does not have jurisdiction “to decide any financial or property issues, because ... matters in a divorce case are within the jurisdiction of the state where that property is located.” Cheng v. Cheng, 347 Pa. Super. 515, 525, 500 A.2d 1175, 1180 (1985). In effect, two divorce actions in separate states are required: one involving the marital status of the parties, the other involving the economic or property aspects of the divorce. See generally, Scoggins v. Scoggins, 382 Pa. Super. 507, 555 A.2d 1314 (1989).

This concept known as a “divisible divorce” or “dual-state divorce” limits the jurisdiction of each state to those matters in which it has the dominant concern and in which its domiciliaries are principally interested. See Stambaugh v. Stambaugh, 458 Pa. 147, 155, 329 A.2d 483, 487-88 (1974); Estin, 334 U.S. at 549. To a large extent, the concept has been codified in sections 3104(d) and 3323(f) of the Divorce Code. 23 Pa.C.S. §§3104(d), 3323(f); see also, Cheng, 347 Pa. Super. 515, 500 A.2d 1175 (finding authority under former 23 Pa.C.S. §401(c), now section 3323(f), to grant economic relief to a spouse who appeared and participated in a foreign divorce proceeding where equitable considerations predominated in favor of such relief and the matter had not been decided in the foreign forum). Nevertheless, a court need not give full faith and credit to a foreign decree where the issuing court was without jurisdiction to adjudicate the matter in dispute. See Stambaugh, 458 Pa. at 153, 329 A.2d at 486; Estin, 334 U.S. at 549.

In this case, Wife contends that not only did the parties reside as husband and wife solely in New York but that most, if not all, of the property that was accumulated by them prior to their separation is located in New York, including Wife’s workman’s compensation settlement, which is governed by New York law, and which is compensation for an injury that occurred while Wife worked in the state of New York. In effect, Wife claims that all of the “attributes of marriage were experienced in New York,” and, therefore, New York is the only state that has jurisdiction over the economic claims related to this divorce action.

To the extent that an order of this court would purport to act directly on property located outside of this Commonwealth, Wife is absolutely correct that “a Pennsylvania court cannot exercise in rem jurisdiction over real or personal property which is located outside the state.” Russo v. Russo, 714 A.2d 466, 466 (Pa. Super. 1998). This, however, begs the deeper question of our authority to entertain Husband’s claim for equitable distribution since, if in personam jurisdiction exists, we have the power to divide marital assets and to direct the parties to act in accordance with such division. See id. at 467 (noting the difference between a Florida court’s order adjudicating rights in Pennsylvania real estate, one awarding a Florida resident an undivided one-half interest in marital assets located in this state, and an order directing the parties to sell real estate located outside of the Commonwealth and to divide the proceeds from the sale); see also, Kulko v. California, 436 U.S. 84, 91-92 (1978).

In Wagner v. Wagner, our Supreme Court stated:

“The requirement of personal jurisdiction flows from the due process clause and restricts judicial power as a matter of individual right____A party may insist that the right be observed or he may waive it----Personal jurisdiction, like other individual rights, is often the subject of procedural rules. ... Frequently, when the rules that govern personal jurisdiction are not followed, the right is lost.... Thus, the failure to file a timely objection to personal jurisdiction constitutes, under the Federal Rules of Civil Procedure and comparable state rules, a waiver of the objection.” 564 Pa. 448, 461, 768 A.2d 1112, 1119 (2001). (citations omitted)

Similarly, “under the Pennsylvania Rules of Civil Procedure, an objection to personal jurisdiction may be waived, if preliminary objections to a complaint raising the issue are not filed within 20 days after service.” Id. (citing Pa.R.C.P. 1026, 1028, 1032(a)).

In this case, Wife contends that she is not subject to Pennsylvania’s long-arm statute, 42 Pa.C.S. §5322, and has insufficient minimum contacts with this state to constitutionally subject her to in personam jurisdiction. Husband argues that Wife has waived and impliedly consented to the exercise of personal jurisdiction by this court in these proceedings. Specifically, Husband notes Wife’s acceptance of service of the complaint by signing the certified mail receipt; the entry of appearance by Wife’s counsel without qualification; the presence and participation of Wife’s counsel at a management conference in which counsel agreed to exchange discovery between the parties; the participation in discovery by Wife’s counsel, including the submission of interrogatories and request for production of documents addressed to Husband and Husband’s answering of this discovery; and the late filing by Wife of any objections to Husband’s claim for equitable distribution until more than six months after the amended complaint containing the objected to claim for equitable distribution was filed.

In Pennsylvania, courts are permitted to exercise personal jurisdiction over nonresident defendants “to the fullest extent allowed under the Constitution of the United States and [such jurisdiction] may be based upon the most minimum contact with this Commonwealth allowed under the Constitution of the United States.” Efford v. Jockey Club, 796 A.2d 370, 373 (Pa. Super. 2002) (citing 42 Pa.C.S. §5322(b)). “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice. ’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Still, “[questions of personal jurisdiction, venue and notice, which relate to the method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action must be raised at the first reasonable opportunity or they are waived.” Schwarz v. Schwarz, 252 Pa. Super. 95, 99, 380 A.2d 1299, 1301 (1977). (quotation marks and ellipsis omitted) “But, we must also bear in mind that procedural rules are not ends in themselves, and that above and beyond everything else they are to be construed in a manner to the end that justice may be administered.” Yentzer v. Taylor Wine Co., 409 Pa. 338, 342, 186 A.2d 396, 398 (1962).

Before personal jurisdiction over a party can be exercised, it must exist, and before it exists, it must be obtained by consent, waiver, or proper service of process. See Cox v. Hott, 246 Pa. Super. 445, 450, 371 A.2d 921, 923 (1977). When a nonresident is involved, the propriety of such an exercise must also be tested against Pennsylvania’s long-arm statute and the due process clause of the Fourteenth Amendment. See Efford, 796 A.2d at 373. Additionally, objections to personal jurisdiction must be made by preliminary objection (Pa.R.C.P. 1028(a)( 1)), must be filed within 20 days if the complaint contains a notice to defend (Pa.R.C.P. 1026(a)), and are deemed waived if not timely filed, except for certain enumerated exceptions not applicable here (Pa.R.C.P. 1032(a)). Wife’s preliminary objections in this case were filed more than six months after the amended complaint was filed and are clearly late. “A party who fails to raise a question of the court’s in personam jurisdiction by timely preliminary objections waives that claim.” Cox, 246 Pa. Super. at 449, 371 A.2d at 923.

A written appearance by itself neither confers jurisdiction nor waives the right of a nonresident defendant to question the court’s jurisdiction over his person. See Hoeke v. Mercy Hospital of Pittsburgh, 254 Pa. Super. 520, 526, 386 A.2d 71, 74 (1978) (citing Pa.R.C.P. 1012). “ [T]o find a waiver of in personam jurisdiction the courts ordinarily have looked for ‘some other and further action on the merits’’ beyond the mere filing of an appearance by the party seeking not to be bound.” Id. (emphasis in original) A defendant manifests the intent to submit to the court’s jurisdiction when the defendant takes “some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the [court’s jurisdiction].” Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 135, 471 A.2d 493, 499 (1984), abrogated on other grounds, Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997).

Here, after Wife’s counsel entered his appearance, he proceeded to litigate the action. By requesting and taking substantive discovery, unrelated to contesting in personam jurisdiction, Wife both submitted to, and purposely availed herself of, the jurisdiction of this court to litigate the underlying merits of the controversy. See Ball v. Barber, 423 Pa. Super. 358, 361-62, 621 A.2d 156, 158 (1993).

CONCLUSION

It is not disputed that the requirements of procedural due process have been met and that Husband’s domicile in this state serves as the foundation for a decree of divorce. By affirmatively appearing through counsel, without qualification, and by actively participating in a divorce proceeding and using the resources of this court, without any obj ection to jurisdiction having been timely filed, Wife has accepted and is bound to the exercise of personal jurisdiction by this court over the parties and the issues in dispute. Accordingly, Wife’s preliminary objections will be dismissed, and those of Husband dismissed as moot.

      . The facts upon which we base our decision are not in dispute. At the time this matter was argued, the parties agreed that a hearing was not required and stipulated that the facts set forth by each in their respective filings and briefs could be relied upon by the court. Accordingly, the facts as stated herein are those gleaned from the parties’ filings and briefs.

      . Section 3104(a) of the Divorce Code delineates the scope of the Courts of Common Pleas’jurisdiction in this Commonwealth to hear and decide divorce matters, including the equitable distribution of marital assets if raised in the pleadings. 23 Pa.C.S. §3104(a). Section 3104(b) of the code further authorizes any spouse who has been a bona fide resident of this Commonwealth for at least six months to commence an action for divorce or annulment. 23 Pa.C.S. §3104(b). “ ‘Bona fide residence’ means domicile; i.e., actual residence coupled with the intention to remain there permanently or indefinitely.” Zinn v. Zinn, 327 Pa. Super. 128, 130, 475 A.2d 132, 133 (1984).

      . At the time of argument, Wife advised that under New York law her workman’s compensation settlement is not a marital asset but that it is under Pennsylvania law. In deciding we have personal jurisdiction over the parties, we do not decide and have not determined whether under a conflict of laws interest analysis New York or Pennsylvania law should govern what is a marital asset.


author: ASHWORTH, J,

text:
    Commonwealth v. White

      Craig Stedman, district attorney, for Commonwealth.

      R. Russell Pugh, for defendant.
    June 9, 2009
   ASHWORTH, J,

William Anthony White has filed a post-sentence motion, nunc pro tunc. For the reasons set forth below, this motion will be denied.

I. BACKGROUND

On August 15, 2005, at approximately 11:30 p.m., Stephen Ruhl was confronted in the 600 block of North Shippen Street in the City of Lancaster by a group of at least three males as he walked home from Stubby’s Bar after having purchased a six-pack of beer. Mr. Ruhl was struck in the face with a handgun and told to remove his belongings. He complied, turning over his wallet, which contained approximately $150 in cash, and credit cards. He was then struck in the face with the six-pack of beer before the perpetrators fled. (N.T., guilty plea at 15-16.)

Approximately 40 minutes later, there was an attempt by one of the perpetrators to use one of Mr. Ruhl’s stolen credit cards at the Wal-Mart on Lincoln Highway East. Police responded to the store and obtained the surveillance video, which they later determined contained photos of defendant, along with his accomplices, Wilbert T. Robinson and Tavon Robinson. (N.T., guilty plea at 16-17.)

As a result of these incidents, defendant was ultimately charged at Information no. 1479-2006 with criminal conspiracy and robbery.

On August 25,2005, at approximately 9:42 p.m., Anthony Pugliese was approached by a group of at least three males as he walked home from the Green Briar Cafe in the area of North Shippen Street in the City of Lancaster. Mr. Pugliese was kicked and punched repeatedly by the group of males all over the upper half of his body, with the majority of blows being directed to his face and head area, resulting in serious bodily injury, including eight facial fractures. In the course of the assault, the actors rummaged through Mr. Pugliese’s pockets and removed $1.50. (N.T., guilty plea at 19-20.)

Mr. Pugliese heard someone come to the scene to assist him by yelling at the group and telling them “to leave him alone”; however, Mr. Pugliese was unable to see anything at that time because he had blood in both of his eyes, and the assault continued. The individuals who came to Mr. Pugliese’s assistance were Gina Boley and Erica Sheneberger, who pulled up in a vehicle and yelled at the group. Ms. Boley and Ms. Sheneberger observed four or five individuals assaulting Mr. Pugliese. The women drove away when they were approached by a male who pointed a black handgun at their car and told them to get away. Ms. Boley and Ms. Sheneberger drove around the block and returned to aid Mr. Pugliese after calling the police. (N.T., guilty plea at 20-22.)

On the same evening of August 25,2005, at approximately 10:45 p.m., Michael Martin and Josh Wolpert left Cherry’s Jubilee (a restaurant) and traveled down Park Avenue in the City of Lancaster to Stubby’s Bar. As they walked, they passed a black male who was seated on a porch with a shirt pulled over his face. As they passed him, the male stood up and approached them and said he had a gun under his shirt, and that they should walk down the alley or he would “put something hot in [them].” Mr. Martin and Mr. Wolpert complied with the directive and walked down the alley where they were approached by about four other males with red bandanas on their faces. The men were told to empty their pockets and they complied, giving their wallets, cell phones, cigarettes, and other items to the perpetrators. Mr. Wolpert saw what he believed to be a firearm under one man’s shirt. The victims were told to walk down the alley and not turn around, and they complied. They went directly to the City Police Station and reported the incident. (N.T., guilty plea at 22-23.)

Approximately 50 minutes later at 11:36 p.m. on August 25,2005, Stephen Smoker and Bethany DeGaetano were standing in front of 404 West James Street in Lancaster City embracing and saying goodbye as they were approached by five black males who walked passed them and turned the corner. Moments later, the group of males returned walking at a fast pace and struck Mr. Smoker in his face, causing him to fall to the ground. Mr. Smoker was encircled by the individuals so he got in the fetal position as the individuals were throwing punches. The perpetrators rummaged through Mr. Smoker’s pockets and removed his wallet. As one of the individuals was about to kick Mr. Smoker in the face, Ms. DeGaetano came to his aid by attempting to push the individual. He responded by punching Ms. DeGaetano in the face. The group of individuals then walked away west on James Street towards Franklin and Marshall College. Mr. Smoker immediately called the police and reported the incident. (N.T., guilty plea at 23-26.)

Officer Mark Radmore of the Lancaster City Bureau of Police responded to a dispatch of the robbery and proceeded toward Franklin and Marshall College in a marked patrol car where he observed a black male at an ATM machine located at the Turkey Hill convenience store on Harrisburg Pike with a tan vehicle parked in front of the ATM with four black male occupants. The male at the ATM machine became visibly nervous when he observed the police car and began to walk away at which time he was directed to stop, but he refused and fled on foot. He was later apprehended and identified as William White, the defendant herein. Ms. DeGaetano identified White as the individual who punched her. The driver of the vehicle was identified as Wilbert Robinson, the front passenger was his brother, Geollious Robinson, and the rear passengers were Gaston Robertson-Stewart, cousin to the Robinson brothers, and Garry S. Dorsey. (N.T., guilty plea at 25-26.) A subsequent search of the car revealed items belonging to some of the robbery victims, including the cell phone of Josh Wolpert and the wallet of Stephen Smoker. (Id. at 25.) Additionally, an ATM card belonging to Michael Martin was found at the scene. (Id. at 26.)

As a result of these incidents, defendant was charged at Information no. 5140-2005 with multiple counts of criminal conspiracy, robbery and aggravated assault. Thereafter, defendant’s cases were consolidated, for purposes of trial, with his six accomplices, Wilbert T. Robinson, Geollious Robinson, Garry S. Dorsey, Gaston A. Robertson-Stewart, Tavon Robertson, and Dominique Boyer.

After numerous trial continuances by defendant, he chose to enter an open plea on May 7,2007. At that time, the court accepted defendant’s plea, after determining that defendant had knowingly, voluntarily, and intelligently chosen to plead guilty. (N.T., guilty plea at 27.) Sentencing was deferred pending a pre-sentence investigation report. Defendant was represented by court-appointed counsel at his plea, specifically, Michael V. Marinaro, Esquire.

On August 2, 2007, defendant was sentenced on Information no. 5104-2005 to an aggregate sentence of nine and one-half years to 19 years. On Information no. 1479-2006, defendant received a sentence of three to six years incarceration on the robbery charge and two to four years on the criminal conspiracy charge. The sentences on these charges were concurrent to each other but consecutive to the sentence at no. 5104-2005. Thus, the aggregate effect of these sentences was 12 1/2 years to 25 years. Defendant was represented by Attorney Marinaro at this sentencing hearing.

On August 6, 2007, White filed a timely motion to modify and reduce sentence claiming that the sentence imposed by the court (1) failed to consider the sentencing guidelines, (2) failed to provide adequate reasons for sentencing defendant to the high end of the standard sentencing range for each count, and (3) was unreasonable and excessive. On August 9, 2007, I entered an order denying White’s motion to modify and reduce sentence.

White filed a direct appeal with the Superior Court of Pennsylvania on September 4,2007, from his judgment of sentence entered on August 2, 2007, as finalized by the denial of defendant’s post sentence motion by order dated August 9, 2007. On October 1, 2007, defendant filed a Pennsylvania Rule of Appellate Procedure 1925(b) statement identifying three issues for appeal. On October 10,2007,1 filed an opinion pursuant to Rule 1925(a) addressing each of the issues raised on appeal.

In the interim, on October 4, 2007, defense counsel filed a motion for leave to withdraw as counsel, which was granted the same day. New appellate counsel was not appointed, however. Consequently, the direct appeal was dismissed by the Superior Court on October 22, 2007, for failure of defendant to file a docketing statement, pursuant to Pa.R.A.R 3517.

On October 21, 2008, White filed, pro se, a timely petition for post conviction collateral relief, raising 28 issues. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, R. Russell Pugh, Esquire, was appointed on October 23, 2008, to represent White on his collateral claims. Counsel was granted two extensions to prepare an amended petition on behalf of White. However, after a thorough review of the record in this matter and after consultation with counsel, this court determined that defendant was entitled to relief as his constitutional rights were violated when he was denied his right to appellate counsel. This violation was a direct result of the trial court’s ruling granting Attorney Marinaro’s motion to withdraw without appointing new appellate counsel pursuant to Pa.R.Crim.P. 122.

Accordingly, on May 1, 2009, White’s petition for post-conviction collateral relief was granted and his direct appeal rights were reinstated, nunc pro tunc. On June 2, 2009, defendant filed a post-sentence motion, nunc pro tunc, in which he raises three issues: (1) whether defendant’s plea was not voluntary, knowing and intelligent because of the effects of medications he had taken prior to his plea; (2) whether defendant’s plea was not voluntary, knowing, and intelligent because defendant was advised by his attorney that he would receive a sentence similar to that of his codefendant Garry Dorsey; and (3) whether defendant’s sentence was unlawful or contrary to sentencing norms or an abuse of discretion in that it was three-times longer than sentences imposed on similarly-situated codefendants convicted of the same or similar offenses.

II. DISCUSSION

Initially, defendant asserts that his guilty plea was “not voluntary, knowing and intelligent because of the effects of medications administered by the Lancaster County Prison prior to his plea.” (See post-sentence motion at ¶6(&).)

“Our law is clear that, to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. There is no absolute right to withdraw a guilty plea, and the decision as to whether to allow a defendant to do so is a matter within the sound discretion of the trial court. To withdraw a plea after sentencing, a defendant must make a showing of prejudice amounting to ‘manifest injustice. ’ A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently. A defendant’s disappointment in the sentence imposed does not constitute ‘manifest injustice.’” Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008) (quoting Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003)).

In order to ensure a knowing, voluntary and intelligent plea, the court is required to ask the following questions in the guilty plea colloquy: (1) Does the defendant understand the nature of the charges to which he is pleading guilty or nolo contendere? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he has the right to a jury trial? (4) Does the defendant understand that he is presumed innocent until found guilty? (5) Is the defendant aware as to the permissible range of sentences; and (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Bedell, supra at 1212 (citing Pa.R.Crim.P. 509 comment). See also, Commonwealth v. Willis, 471 Pa. 50, 51-52, 369 A.2d 1189, 1189-90 (1977).

“[Njothing in [Rule 509] precludes the supplementation of the oral colloquy by a written colloquy that is read, completed, and signed by the defendant and made a part of the plea proceedings.” Bedell, supra at 1212-13 (citing Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super. 2005)). In this case, defendant completed and signed a seven-page written guilty plea colloquy “long form” which was incoiporated into the record. Defendant confirmed for the court during the guilty plea hearing that he had reviewed the colloquy form with his attorney, had signed it and had no questions regarding the document. (N.T., guilty plea at 13-14.)

On this form, defendant acknowledged at questions 9 and 10 that he was being treated for “depression/mood disorder.” However, he noted at question 11, that despite suffering from and being treated for depression, he could fully cooperate with his attorney, comprehend what he was doing, and understand what the questions meant and why he must answer them. Additionally, in response to questions 12 and 13, defendant stated that he had taken antidepressants within the past 24 hours. However, defendant denied, in response to question 14, that this medication rendered him incapable of understanding the questions and answering them.

Defendant’s plea of guilty is also supported by the oral colloquy in which I specifically questioned defendant regarding his depression and the medication he was taking for treatment of depression. (N.T., guilty plea at 14-15.) At that time (4 p.m. in the afternoon), defendant noted that while he was not “presently on any medications,” he had taken his antidepressant the previous night. (Id. at 14.) Yet, defendant consistently answered throughout the guilty plea hearing that he understood his constitutional rights, understood the elements of each criminal charge and the possible sentences associated with each, understood the Commonwealth’s evidence against him, and understood the court’s role in sentencing him. By his actions and his words, defendant acknowledged that he understood the criminal proceeding and could fully participate in it. A defendant’s “contention that his physical and mental condition rendered him incapable of making an intelligent and voluntary decision to plead guilty is belied by his acknowledgment during the plea colloquy that he understood what he was doing and that his physical ailment . . . did not impair his ability to comprehend the proceedings.” Commonwealth v. Rumbaugh, 365 Pa. Super. 388, 390-91, 529 A.2d 1112, 1113 (1987).

Our Supreme Court has determined that “[competence to plead guilty depends upon whether the defendant has the ‘ability to comprehend his position as one accused of [a crime] and to cooperate with his counsel in making a rational defense,’ . . . and whether he has ‘sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and (has) a rational as well as factual understanding of the proceedings against him.’” Commonwealth v. Frey, 588 Pa. 326, 336-37, 904 A.2d 866, 872 (2006). (citations omitted) The determination of competency is a matter for the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Id. at 337, 904 A.2d at 872.

The written colloquy and defendant’s answers to questions at the guilty plea hearing satisfy this court that defendant’s plea was a knowing and voluntary plea of guilty entered into with a full understanding and appreciation of the charges and the legal consequences. Defendant clearly demonstrated the ability to comprehend the proceedings against him and to consult with his attorney in making a rational decision relative to the charges and the plea. Under the totality of the circumstances, this court found that defendant’s diagnosis of “depression/mood disorder” for which he was taking medications did not render him incompetent for purposes of entering a guilty plea. This determination was a matter for the sound discretion of the trial court and should not be disturbed.

Next, defendant contends that his plea was not voluntary, knowing and intelligent because “[defendant] was advised by his attorney that he would receive a sentence similar to that of his codefendant Gary [sic] Dorsey, four to eight years, if he pled guilty before Judge Ashworth’s temporary absence from the bench for knee surgery. If the plea was delayed, Judge Georgelis would assume the case and a much longer sentence could be expected.” (See post-sentence motion at t6(b).)

Based upon a review of the record in this matter, it is clear that defendant’s request to overturn the guilty plea and the sentence is at odds with the truth of this case. The truth of this case is that White understood the charges against him, recognized the substantial jail sentence which could be applied, and was fully and well represented by counsel throughout the case. The truth of this case is that White is simply unhappy with his sentence. However, as noted above, “[a] defendant’s disappointment in the sentence imposed does not constitute ‘manifest injustice’ ” sufficient to justify a withdrawal of a plea after sentencing. Bedell, 954 A.2d at 1212.

Attorney Marinaro’s alleged statements to defendant about what he believed his likely sentence might be did not induce the guilty plea because any misconceptions defendant had about his possible sentence were dispelled by the written and oral plea colloquies. The record clearly establishes that White was aware that he was charged with five counts of robbery, one count of aggravated assault, one count of simple assault, and one count of criminal conspiracy (N.T., guilty plea at 2,5-8), that he understood the nature of these charges (id. at 6-8), that he was satisfied that he had committed these offenses or that the Commonwealth could present sufficient evidence to establish the charges (id. at 16-26), that he was giving up his right to a jury trial and the presumption of innocence (id. at 3), and that each felony offense carried a maximum jail term of 20 years. (Id. at 8-9.)

In the colloquy with defendant, this court clearly advised defendant that he was entering a straight plea “which [meant] there [was] no agreement between [defendant], [his] attorney, the Commonwealth, and this court as to what sentence may be imposed.” (N.T., guilty plea at 4.) The court further stated: “It is entirely up to my discretion after I have reviewed a presentence investigation report to decide what sentence, if any, should be imposed.” (Id.) The undersigned told defendant at his guilty plea hearing that he could receive a maximum potential sentence of 20 years for each felony and that if all the charges were sentenced consecutively he would be subject to a maximum potential sentence of 152 years in prison. (Id. at 8-9.) This information was also included in the written guilty plea colloquy form at ¶23.

Additionally, at ¶¶32, 33, 34 and 37 of the written colloquy form, defendant acknowledged that he was entering the plea of his own free will without the influence of promises, force, threats or coercion, and that it was his decision alone to plead guilty. The record is clear that White knew he risked a 20-year term of imprisonment and that no sentence was promised to him. He elected to proceed to plead guilty. Moreover, there is no legal requirement that a defendant be aware of the guideline ranges in order to enter a valid guilty plea, although in this case, the sentencing guidelines were thoroughly reviewed with defendant. (N.T., guilty plea at 9-13.)

By the nature, extent and tone of the guilty plea hearing, this court was well satisfied that Attorney Marinaro had fully executed his duties in advising White of the nature of the charges and the possible consequences of his plea. White simply did not tender a guilty plea based on promises by counsel. See Commonwealth v. Fowler, 893 A.2d 758 (Pa. Super. 2006).

The only “evidence” suggesting that defendant’s guilty plea was induced by counsel’s alleged advice that he would receive a four to eight year sentence is White’s proffered testimony which directly contradicts defendant’s own statements made during the oral plea colloquy and on the written colloquy.

“The long-standing rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. ... A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy....

“A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We (cannot) permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel. ...” Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003). (citations omitted) The evidence simply does not support defendant’s claim of unlawful inducement.

Lastly, White claims that the sentence imposed by the court was “unlawful or contrary to sentencing norms or an abuse of discretion in that it was three times longer than similarly-situated codefendants convicted of the same or similar offenses.” (See post-sentence motion at ¶6(0).) With this issue, defendant is challenging the discretionary aspect of his sentencing.

We begin by noting that sentencing is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). An abuse of discretion is more than an error in judgment. A sentencing court has not abused its discretion “unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.” Commonwealth v. Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996). Moreover, Pennsylvania law is well settled that the trial court is not bound to impose an identical sentence on all participants of a crime. Commonwealth v. Myers, 370 Pa. Super. 326, 330, 536 A.2d 428, 430 (1988).

Defendant argues that this court abused its discretion by imposing a higher and disproportionate sentence upon defendant in comparison with his coconspirators who were sentenced by another judge to a shorter term of imprisonment than defendant. On September 29, 2006, codefendant Dominique Boyer was sentenced on docket no. 5139-2005 on three counts of robbery (FI), two counts of criminal conspiracy to commit robbery (FI), and one count of aggravated assault (FI) for crimes committed against Anthony Pugliese on August 25,2005. He was sentenced by the Honorable Paul K. Allison to an aggregate sentence of four to eight years in a state correctional facility. Boyer did not participate in the August 15,2005 robbery on docket no. 1502-2006 and, therefore, was not a co-defendant on that docket with defendant White.

On May 2,2007, codefendant Garry Dorsey was sentenced on docket no. 5137-2005 on three counts of robbery (FI), two counts of robbery (F2), one count of criminal conspiracy to commit robbery (FI), and one count of aggravated assault (FI) for crimes committed on August 25,2005. He was sentenced by Judge Allison to an aggregate sentence of four to eight years imprisonment. Dorsey also did not participate in the August 15, 2005, robbery of Stephen Ruhl on docket no. 1502-2006, and, therefore, was not a codefendant on that docket with defendant White.

Under the facts of this case, the court’s sentence was not disproportionate to the sentences imposed on White’s codefendants. In so concluding, we rely upon Commonwealth v. Hollerbush, 298 Pa. Super. 397, 444 A.2d 1235 (1982), wherein our Superior Court was faced with a similar situation to the one currently before us. There the court stated:

“This is not a situation where the appellant and his accomplices were tried jointly, or where they were tried singly and sentenced by the same judge. The sentencing judge in this case neither tried nor sentenced any of appellant’s accomplices. Where, as here, the sentencing court considered the circumstances of the crime and the particular characteristics of the appellant, the fact that the appellant received a stiffer sentence than other appellants guilty under the same statutory provisions for their respective roles in this gang rape does not in itself constitute grounds for a finding that the appellant’s sentence was excessive. Commonwealth v. Jezorwski, 280 Pa. Super. 178, 421 A.2d 464 (1980).” 298 Pa. Super. at 408, 444 A.2d at 1241.

Similarly, in Commonwealth v. Fuller, 396 Pa. Super. 605, 620, 579 A.2d 879, 887 (1990), the Superior Court held that the fact that a defendant received a sentence greater than that of his coconspirators was not in and of itself sufficient grounds to merit re-sentencing.

In the instant case, White pleaded guilty and was sentenced to 12 1/2 to 25 years, while White’s codefendants, Boyer and Dorsey, who also pleaded guilty, were sentenced to four- to eight-year terms of imprisonment by a different judge. When a defendant’s accomplice is tried, or pleads guilty, in a separate proceeding, and is sentenced by a different judge, the sentencing court is not required to explain an alleged disparity between the defendant’s sentence and that of the accomplice. Commonwealth v. Szczesniewski, 404 Pa. Super. 617, 621, 591 A.2d 1055, 1057 (1991); Myers, 370 Pa. Super. at 330-31, 536 A.2d at 430. See also, Commonwealth v. Holler, 326 Pa. Super. 304, 310, 473 A.2d 1103, 1107 (1984) (it is not incumbent upon the court to be guided by a sentence a different court imposes on a codefendant). Moreover, even if the disparity is so great that reasons should have been given, see Myers, 370 Pa. Super. at 330-31, 536 A.2d at 430, a review of the sentencing hearing reveals that this court articulated factors that were sufficient to support defendant’s sentence.

First and foremost, the different sentences arose from the different crimes of which the three coconspirators were convicted. Counsel for defendant argues that the sentence imposed on defendant is three times the sentence imposed on “similarly-situated codefendants convicted of the same or similar offenses.” (See post-sentence motion at t6(c).) Flowever, in point of fact, Dominique Boyer was not even involved in two of the three incidents on the evening of August 25, 2005. He was taken into custody after the initial robbery and assault of Mr. Pugliese, so his charges were very limited. Moreover, he was not a participant with defendant in the robbery of Mr. Ruhl on August 15, 2005. Garry Dorsey, on the other hand, did participate with defendant in all three of the attacks on August 25, 2005. However, he was not with defendant when he robbed Mr. Ruhl on August 15,2005. Therefore, Dorsey’s situation was also different from defendant’s.

In addition, Dorsey and Boyer pleaded guilty and were sentenced prior to the criminal court term. Whereas, defendant waited to plead guilty until just before the jury was to be selected for trial; a trial for which the Commonwealth had fully prepared by subpoenaing more than 30 witnesses, including two witnesses (victims) who were flown in from Chicago, Illinois, and another who traveled from Virginia. (See N.T., sentencing at 29.) Also, this sentencing court had the benefit of a pre-sentence investigation report, while no such report was prepared regarding White’s codefendant, Garry Dorsey.

Defendant’s sentence was based solely on the facts of his case and on his prior record. The fate of defendant’s coconspirators was not, and should not be, considered in determining defendant’s sentence. Myers, 370 Pa. Super, at 330, 536 A.2d at 430. Nonetheless, under the facts of this case, the court’s sentence was not wholly and irrationally disproportionate to the sentences imposed on defendant’s codefendants.

Alternatively, defendant claims there was “an inadequate informational basis for a 12-1/2 to 25 year sentence.” (See post-sentence motion at t6(c).) Here, the court had the benefit of a pre-sentence investigation report. Our Supreme Court has held that where a presentence report exists, the appellate court will presume the sentencing court was aware of any and all relevant information contained in the report regarding the defendant’s character and weighed those considerations along with all mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18-19 (1988). In discussing Devers, the Superior Court has explained:

“In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant’s prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a pre-sentence investigation report, it will be presumed that he or she was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. ... Additionally, the sentencing court must state its reasons for the sentence on the record.. .. The sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the pre-sentencing report; thus properly considering and weighing all relevant factors.” Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006). (citations omitted)

Here, all of the reasons for the sentence and all of the factors considered before imposing it were comprehensively stated on the record at the sentencing hearing. The court carefully considered the following: defendant’s age (20); his family history; his educational background, having dropped out of school in the 12th grade; his substance abuse history, starting with his use of marijuana and alcohol at the age of 16; his almost nonexistent employment history (approximately 45 days); and his prior juvenile and adult criminal records. (N.T., sentencing at 10-14.) It is clear from the record that this court carefully considered the entire pre-sentence investigation report.

Furthermore, the court took into consideration defendant’s statements to the court (N.T., sentencing at 7-8), what defense counsel had to say on behalf of defendant (id. at 3-7), and what the assistant district attorney had to say on behalf of the Commonwealth (id. at 8-10), as well as the provisions of the Sentencing Code, the authorized penalties and the circumstances of the offenses. The court also took into account the rehabilitative needs of defendant.

The court carefully considered the sentencing guidelines in determining the time of incarceration for this defendant’s offenses. Here, defendant pleaded guilty to multiple counts of criminal conspiracy, robbery, and aggravated assault, which are graded as felonies in the first degree. A person convicted of such crimes may be sentenced to imprisonment for not more than 20 years. Defendant’s sentence of 12 1/2 to 25 years did not exceed the statutory maximum. Nor were any of the individual sentences outside the standard guidelines. Given the violent acts committed in this case, as well as defendant’s total exposure as far as lawful máximums and potential consecutive sentences, defendant’s sentence was not an abuse of discretion.

When reviewing sentencing matters, the Superior Court must accord the sentencing court great weight, and a sentence will not be disturbed where it is evident that the sentencing court was aware of the sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Cappellini, 456 Pa. Super. 498, 513, 690 A.2d 1220, 1228 (1997). Moreover, where the court’s sentencing colloquy “shows consideration of the defendant’s circumstances, prior criminal record, personal characteristics and rehabilitative potential, and the record indicates that the court had the benefit of the pre-sentence report, an adequate statement of the reasons for the sentence imposed has been given.” Commonwealth v. Brown, 741 A.2d 726, 735-36 (Pa. Super. 1999) (quoting Commonwealth v. Phillips, 411 Pa. Super. 329, 344, 601 A.2d 816, 823-24 (1992)). These requirements have been met in this case.

III. CONCLUSION

For the aforementioned reasons, William A. White’s post-sentence motion will be denied.

Accordingly, we enter the following:

ORDER

And now, June 9, 2009, upon consideration of defendant William Anthony White’s post-sentence motion, nunc pro tunc, it is hereby ordered that said motion is denied.

Pursuant to Pa.R.Crim.P. 720(B)(4), this court advises defendant that he has the right to appeal from this order. Defendant shall have 30 days from the date of this final order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of appellate rights.

If you financially qualify, an appeal may be filed without the payment of costs (in forma pauperis), and there is the same right to assigned counsel as existed through sentencing.

      . 18 Pa.C.S. §903.

      . 18 Pa.C.S. §3701 (a)(1).

      . 18 Pa.C.S. §903.

      . 18 Pa.C.S. §3701(a)(l).

      . 18 Pa.C.S. §2702(a)(l).

      . Tavon Robertson was involved only in the initial incident on August 15, 2005, involving Stephen Ruhl.

      . Dominique Boyer was involved only in the incident on August 25, 2005, involving Anthony Pugliese.

      . The three bases for appeal were: (1) the plea of guilty was not a knowing, intelligent and voluntary act on the part of defendant; (2) the court failed to properly advise defendant of the nature and consequences of his plea; and (3) the court abused its discretion by not considering certain mitigating factors.

      . Rule 3517 provides as follows: “Whenever a notice of appeal to the Superior Court is filed, the prothonotary shall send a docketing statement form which shall be completed and returned within 10 days in order that the court shall be able to more efficiently and expeditiously administer the scheduling of argument and submission of cases on appeal. Failure to file a docketing statement may result in dismissal of the appeal.” Pa.R.A.R 3517. (emphasis added)

      . Rule of Criminal Procedure 122, entitled “Appointment of counsel,” provides in relevant part: “When counsel is appointed,. . . (2) the appointment shall be effective until final judgment, including any proceedings upon direct appeal.” Pa.R.Crim.P. 122(B).

      . Defendant entered an Alford plea to four of the charges thereby acknowledging that the Commonwealth had sufficient evidence that, if presented at trial, the jury would find guilt beyond a reasonable doubt. (See N.T., guilty plea at 18,22.)

      . I agreed, during an in-camera discussion with co-counsel, that a prior ruling by Judge Allison that there was no basis for applying either the deadly weapon mandatory or deadly weapon enhancement would apply in this case. This conclusion was based both on the fact that the Commonwealth could not establish the actual possession of the gun by defendant during the robberies, and that no firearm was ever recovered. For these reasons, the Commonwealth was prevented from invoking the mandatory and the enhancement.