author: WIEAND, Judge:

text:
    474 A.2d 605
    Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC., a/k/a St. Charles Seminary and Father Anthony Flynn, an individual, and Our Lady of Lourdes Catholic Church Appeal of OUR LADY OF LOURDES CATHOLIC CHURCH Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC., a/k/a St. Charles Seminary and Father Anthony Flynn, an individual, and Our Lady of Lourdes Catholic Church Appeal of The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC., a/k/a St. Charles Seminary. Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased, Appellant v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC., a/k/a St. Charles Seminary and Father Anthony Flynn, an individual, and Our Lady of Lourdes Catholic Church.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Filed March 23, 1984.
    Reargument Denied May 25, 1984.
    Appeal Allowed Oct. 19, 1984.

      Byron L. Milner, Philadelphia, for Our Lady, appellant (at No. 310) and appellee (at Nos. 311 and 476).
    Jeffrey M. Stopford, Philadelphia, for Rivera, appellant, (at No. 476) and appellee (at Nos. 310 and 311).
    Charles W. Craven, Philadelphia, for Phila. Theological Seminary, appellant (at No. 311) and appellee (at No. 310 and 476).
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Frederick Rivera, age 12, drowned while swimming in an indoor pool owned by The Philadelphia Theological Seminary of St. Charles Borromeo, Inc. (the Seminary). He was one of fourteen altar boys from Our Lady of Lourdes Catholic Church (the Church) who had been invited by the Reverend Anthony Flynn, a priest, to participate in an evening swimming party. Father Flynn took the boys to the pool at the Seminary without requesting permission from the Seminary and without prior notice to the Seminary that he intended to use the pool for a swimming party. There was evidence of use by others on prior occasions, however, and Father Flynn was of the understanding that a priest could use the pool at any time and could bring groups of persons with him to use the pool. Moreover, Father Flynn had attended the Seminary and was familiar with the means by which entrance could be achieved even when the pool appeared to be closed. When the boys arrived at the pool at 7:50 p.m., on the evening of December 17, 1976, the main entrance to the pool had been closed and locked. Neither attendants nor lifeguards were present. Father Flynn gained entrance to the building which housed the pool by going through a labyrinth of halls. He then opened a fire door through which the boys entered. Father Flynn, an excellent swimmer and trained in water rescue, intended to provide supervision while the boys were in the water. During the course of the boys’ activities, he left the pool area and entered the locker room to use the telephone to order pizza for the boys. While he was absent, Rivera was found at the bottom of the pool at the deep end. When Father Flynn learned that a body was lying on the bottom of the pool, he dove into the water and retrieved the body. His efforts to revive Rivera, unfortunately, were unsuccessful. The decedent’s mother and administratrix, Concepcion Rivera, commenced wrongful death and survival actions, which were tried before a jury. At trial, the evidence did not disclose the precise cause of the drowning. The trial court directed a verdict in favor of Father Flynn. A jury awarded damages to the plaintiff and apportioned negligence as follows: Rivera — 5%; the Church — 65%; and the Seminary — 30%. Post trial motions were denied, and judgments were entered on the verdict. Cross appeals were filed. Ms. Rivera challenges the jury’s finding that her deceased son had been negligent. The Seminary argues that it can be liable only if plaintiff proved it had been guilty of “malicious” conduct and that plaintiff’s proof failed to show such conduct. Finally, both the Seminary and the Church challenge various trial rulings and jury instructions by the trial court. We agree that a new trial must be granted.

“It is well settled that a judgment n.o.v. will be entered only in a clear case, and that any doubts will be resolved in favor of the verdict [winner].” Stewart v. Chernicky, 439 Pa. 43, 53, 266 A.2d 259, 265 (1970). The question of the negligence of plaintiff’s decedent was for the jury if reason-able persons could disagree about whether his conduct had contributed to the injury. See: Smith v. Port Authority Transit, 257 Pa.Super. 66, 71-72, 390 A.2d 249, 251 (1978). “A child is held to that measure of care that other [children] of like age, experience, capacity and development would ordinarily exercise under similar circumstances.”' Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 784 (1980). It has been held, however, that a thirteen and one-half year old boy, who has been in and around water, should realize the risk involved in swimming in deep water, for the perils contained in a body of water are obvious to children at an early age. Jennings v. Glen Alden Coal Co., 369 Pa. 532, 536, 87 A.2d 206, 208 (1952). See also and compare: Hunt v. Graham, 15 Pa.Super. 42 (1900).

In the instant case, the decedent had been a twelve year old, seventh grade student of above average intelligence. There was some evidence that he could not swim. Other evidence was to the effect that he could swim, but not well, and that on prior occasions he had been careful not to venture into deep water. One of the boys testified that he had seen the decedent “doggie paddling” in the deep end of the pool on the night of the drowning and had asked him if he was alright; other boys also had seen the decedent in the deep water. It was obvious which end of the pool was deep, they said. Under these circumstances, the trial court concluded, and we agree, that a jury could have found that the decedent was causally negligent in failing to avoid an obvious hazard. Ms. Rivera’s motion for judgment n.o.v. was properly denied.

The Seminary also contends that judgment n.o.v. should have been entered in its favor. It relies upon the Recreation Use of Land and Water Act of February 2, 1966, P.L. 1860, 68 P.S. § 477-1 et seq. The stated purpose of this Act is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” 68 P.S. § 477-1. An owner of recreational land, as defined in the statute, “owes no duty of care to keep the premises safe for entry or use by others for recreational purposes.” 68 P.S. § 477-3. An owner who “directly or indirectly invites or permits without charge any person to use such property for recreational purposes” does not incur liability for injury to such persons except “[f]or wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” 68 P.S. §§ 477-4 and 477-6. The Seminary contends that the Act relieved it from a duty to use reasonable care and, in the absence of malicious conduct, rendered it immune from liability to those persons who used its pool without charge. Ms. Rivera, on the other hand, argues that the statute was intended to apply only to lands in rural Pennsylvania and not to lands in urban centers such as Philadelphia. These contentions require that we examine more closely the history and import of this legislation.

The Pennsylvania statute was patterned after the model act proposed in 1965 by the Council of State Governments. See Suggested State Legislation, Vol. XXIV, Public Recreation on Private Lands: Limitation on Liability, pgs. 150-152 (1965).

The impetus behind the model legislation was “to encourage availability of private lands by limiting the liability of owners.” The Council asserted that “in those instances where private owners are willing to make their land available to members of the general public without charge ... every reasonable encouragement should be given.” 24 Suggested State Legislation, supra at 150.

McCarver v. Manson Park and Recreation District, 92 Wash.2d 370, 374, 597 P.2d 1362, 1364 (1979). See also: Watson v. City of Omaha, 209 Neb. 835, 838-40, 312 N.W.2d 256, 258 (1981).

The Pennsylvania Recreation Use Act repealed and replaced the Act of September 27, 1961, P.L. 1696, which had limited the “liability of landowners of agricultural lands or woodlands for personal injuries while hunting or fishing ____” (emphasis added). In the definitional section of the new statute, land is defined as “land, roads, water, watercourses, private ways, and buildings, structures and machinery or equipment when attached to the realty.” 18 P.S. § 477-2(1). In this manner, the Recreation Use Act of 1966 eliminated all geographical and recreational use limitations.

It is a rule of statutory construction that “[a] change in the language of a statute ordinarily indicates a change in legislative intent.” Scanlon v. Commonwealth, Dept. of Transportation, 502 Pa.Super. 577, 585, 467 A.2d 1108, 1112 (1983), quoting Masland v. Bachman, 473 Pa. 280, 289, 374 A.2d 517, 521 (1977) (footnote omitted). Accord: Haughey v. Dillon, 379 Pa. 1, 6, 108 A.2d 69, 72 (1954); Commonwealth v. Lowe Coal Co., 296 Pa. 359, 365, 145 A. 916, 918 (1929); Deremer v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 415, 420, 433 A.2d 926, 928 (1981). If the legislature had desired to restrict the applicability of the Act to land in rural and semi-rural areas, it is reasonable to assume that it would have retained the “agricultural land or woodlands” language of the former statute or inserted similar limiting language in the new Act. The fact that it did not do so is strong evidence that the application of the Act was not intended to be limited in its scope to agricultural lands or woodland.

In addition to the history and unlimited definitional scope of the statute, it is significant that this Court has previously applied the statute to shield a bank from liability for simple negligence where a young man was injured while playing football on a vacant lot owned by the bank and situated across the street from the bank’s office in populous Allegheny County, See: Wiegand v. Mars National Bank, 308 Pa.Super. 218, 454 A.2d 99 (1982).

There is nothing unreasonable about applying the limited liability decreed by the legislature in a uniform manner to lands, whether urban, suburban or rural, which are made available for recreational use without charge. The broad language adopted by the legislature suggests most strongly that the legislature deemed the need for recreational lands in urban centers to be as great as the need therefor in rural areas of the State.

Although the Recreation Use Act has application to land and water areas located in cities as well as in rural parts of the State, it does not follow that the statute has application to public bathing places and swimming pools. The definitional section of the Act does not specifically include swimming pools. Swimming pools are subject to regulation by and under the Public Bathing Law of June 23, 1931, P.L. 899, 35 P.S. § 672 et seq. This statute defines a swimming pool as “a place in the open or enclosed in any structure or building for the purpose of admitting two or more persons to bathe or swim together.” Act of June 23, 1931, supra, § 2(2), 35 P.S. § 673(2). Whether an admission charge is made is irrelevant. The statute requires that a permit be issued by the Department of Environmental Resources before any swimming pool may be operated. It vests supervisory powers in the Department of Environmental Resources and has authorized it to adopt regulations to insure the health and safety of those persons who make use of public bathing places and swimming pools. Cf. Commonwealth, Department of Environmental Resources v. Apple Valley Racquet Club, 20 Pa.Cmwlth. 325, 342 A.2d 150 (1975). Pursuant to this authority, the Department has adopted rules and regulations pertaining to the operation of swimming pools. These include a duty to have lifeguards present at all times when a pool is open. The legislature, it would seem, has determined that swimming pools possess distinct characteristics from and greater potential for harm than other recreational facilities. Therefore, it subjected them to administrative supervision and regulation.

To interpret the Recreational Use Act to apply to swimming pools so as to eliminate the need to exercise reasonable care in the operation and maintenance of pools regulated by authority of the Public Bathing Law, supra, would be unreasonable and absurd. Such an interpretation would have the effect of nullifying for those who need it most the protection intended to be provided by departmental supervision and regulation. Such an interpretation would bring the two statutes into conflict.

According to well-known principles of statutory construction, where there is a conflict between the special provisions of one statute and the general language of another, the special provision prevails and must be construed as an exception to the general provision. 1 Pa.C.S. § 1933. See: Olshansky v. Montgomery County Election Bd., 488 Pa. 365, 370, 412 A.2d 552, 554 (1980); Young v. Workmen’s Compensation Appeal Bd., 39 Pa.Cmwlth. 265, 266-267, 395 A.2d 317, 318 (1978); Paxon Maymar, Inc. v. Liquor Control Bd., 11 Pa.Cmwlth. 136, 141, 312 A.2d 115, 118 (1973). The Public Bathing Law has been made applicable specifically to swimming pools, and it is a criminal offense to operate a swimming pool in violation thereof.

We conclude, therefore, that the legislature did not intend to relieve an owner or operator of a swimming pool from a duty to use care to make the same safe for use by members of the public who use the pool without charge. The operation of swimming pools is regulated by the Public Bathing Law and the regulations adopted thereunder; and one who fails to exercise due care in making the same safe for use can be made to respond in damages to one who has been injured as a result of negligence. Therefore, the trial court properly denied the Seminary’s motion for judgment n.o.v. For the several reasons hereinafter set forth, however, a new trial must be granted.

The trial court specifically instructed the jury that recovery against the Seminary could be based upon any one of three grounds advanced by the decedent’s administratrix and that it was not necessary that she prevail on all of such theories of negligence in order to recover. The first was an alleged violation of the regulation adopted by the Department of Environmental Resources pursuant to the Public Bathing Law, supra, which required lifeguards at public swimming pools while they were open. Another theory advanced by the plaintiff was that the Seminary had violated a duty owed by an owner or occupier of land. The third basis for allowing recovery, the court charged, was Section 323 of the Restatement (Second) of Torts. This section provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

“The import of that section is that negligent performance or nonperformance must increase the risk of harm and that there must be reliance by the injured plaintiff upon the defendant’s performing the service he has undertaken to render.” DeJesus v. Liberty Mutual Insurance Company, 423 Pa. 198, 200-201, 223 A.2d 849, 850 (1966).

This section of the Restatement was inapplicable to the facts of this case, and it was error to charge thereon. There was no evidence that the Seminary had undertaken to perform a service to the decedent or that the decedent had relied thereon. The trial court, although conceding that its charge in this respect was erroneous, refused to grant a new trial because, it said, the jury could have returned a verdict against the Seminary on one or both of the other grounds. The court concluded, therefore, that the incorrect instruction had been harmless. With this we disagree.

Although the grant or refusal of a new trial is often said to be a matter within the sound discretion of the trial court, it is well settled that reversal is required where the jury has been improperly instructed. Fama v. Smith, 303 Pa.Super. 414, 416, 449 A.2d 755, 756 (1982). See also: Boushell v. J.H. Beers, Inc., 215 Pa.Super. 439, 441, 258 A.2d 682, 684 (1969). “ Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted.’ ” Smith v. Chardak, 291 Pa.Super. 173, 182, 435 A.2d 624, 629 (1981), quoting Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 586, 209 A.2d 289, 292 (1965). Accord: Morrissey v. Commonwealth, Department of Highways, 440 Pa. 71, 80, 269 A.2d 866, 870 (1970); Stegmuller v. Davis, 408 Pa. 267, 270, 182 A.2d 745, 747 (1962); Hisak v. Lehigh Valley Transit Co., 360 Pa. 1, 6, 59 A.2d 900, 903 (1948); Dickson v. Wagner, 316 Pa.Super. 93, 96, 462 A.2d 809, 811 (1983). Here, it is impossible to state with certainty that the verdict was not based upon the erroneous instruction regarding Section 323 of the Restatement (Second) of Torts. A new trial, therefore, is necessary.

The trial court’s instructions regarding the Seminary’s duty to have a lifeguard present, moreover, were confusing at best, misleading at worst. It had been the contention of the plaintiff that Father Flynn and, vicariously, the Church could be found liable because they had expressly invited the decedent to swim in the Seminary’s indoor pool without providing adequate supervision. Plaintiff argued that the Seminary should also be found liable on grounds that it was an owner and occupier of land who had failed to exercise reasonable care to protect children who it knew or should have known were coming upon its land to use its pool. This responsibility could have been met, plaintiff argued, if the Seminary had employed one or more lifeguards to be present when other persons were known or believed to be entering its building to use the pool.

Citing the Public Bathing Law of June 23, 1931, P.L. 899, 35 P.S. § 672 et seq., the court told the jury that a regulation adopted pursuant thereto by the Department of Environmental Resources required that one or more lifeguards be present at all times while a public bathing place was open to use by bathers. A violation of the regulation, the court said, was itself negligence. Then the court equivocated. It said: “I don’t believe it is argued that, in the circumstances of this case, the Seminary was required to have a lifeguard present.” The court concluded this phase of the charge, however, with a contradictory instruction.

[T]he position, I believe, is that there had to either be a lifeguard there, provided by the Seminary, if they knew or had reason to believe that children would be using the pool, or people would be using the pool, and/or, two, that they had a duty to supervise the usé of the pool, particularly in the sense of requiring that there be a competent person or persons in charge of the outings such as these altar boys had that evening.
It has been pointed out that Father Flynn met all the qualifications of the act of assembly from the standpoint of experience. He had the necessary certification both in, I think, life saving and safety. But, then, there is a question of ... whether this was adequate____

At best, this was confusing. We have previously said that where jurors have been “misled or confused by a particular charge, a new trial should be granted.” Takach v. B.M. Root Co., 279 Pa.Super. 167, 174, 420 A.2d 1084, 1088 (1980). See also: Hamil v. Bashline, 481 Pa. 256, 275, 392 A.2d 1280, 1289-1290 (1978); Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441, 443 (1963); Fama v. Smith, supra 303 Pa.Super. at 419, 449 A.2d at 758; Smith v. Chardak, supra, 291 Pa.Super. at 182, 435 A.2d at 629. The jury instructions in this case told the jury that the Public Bathing Law required the Seminary to have a lifeguard present, that plaintiff wasn’t arguing that the Seminary should have had a lifeguard present, but that a lifeguard was, in the court’s opinion, necessary if the Seminary had reason to believe that people would use the pool. However, said the court, Father Flynn met the qualifications of a lifeguard, although the jury could still find that this was inadequate. The trial court did not give the jury any objective standard which it could apply to determine the adequacy of Father Flynn’s supervisory ability, particularly as it pertained to the Seminary’s duty to exercise reasonable care to provide lifeguard protection for anticipated use of the pool by others. These instructions regarding adequacy of supervision were incomprehensible and of little or no value in assisting the jury to determine the nature of the duty owed to the decedent by the Seminary.

At the conclusion of the evidence the trial court directed a verdict in favor of Father Flynn. This was done without regard for the evidence produced during trial and because the pleadings, in the opinion of the court, had failed to state a cause of action against Father Flynn. This was error. Father Flynn had participated actively as a party litigant throughout the trial, and there had been a substantial quantity of evidence which, if believed by the jury, showed that he had been negligent. Indeed, it was that evidence which enabled the jury to impute negligence to the Church under principles of respondeat superior.

An amended complaint filed during the pleading stage of the action by the plaintiff had named as defendants “His Eminence John Cardinol Krol as operator of St. Charles Seminary and Our Lady of Lourdes Catholic Church and Father Anthony Flynn.” The complaint did not contain a separate count of negligence against Father Flynn, but he was referred to in the averments of negligence as the agent of the Church. An appearance was entered on his behalf. By stipulation of counsel, the name of the Seminary was subsequently corrected, and Cardinal Krol was eliminated from the caption. The same stipulation provided expressly that the Church and Father Flynn were to remain as defendants. Thereafter, the Seminary filed a pleading containing “New Matter” which, pursuant to Pa.R.C.P. 2252(d), alleged that the Church and Father Flynn were jointly liable or liable over to the Seminary because the Seminary’s negligence, if any, “would be passive and secondary as opposed to the active and primary negligence of the co-defendants.” On this state of the pleadings the case went to trial. Father Flynn had not at any time filed preliminary objections to the complaint; he had not, in any other manner, advanced a pre-trial challenge to the sufficiency of the complaint or the Seminary’s cross claim. By failing to object preliminarily, Father Flynn waived any formal errors, indefiniteness or lack of particularity in the pleadings. Pa.R.C.P. 1032; 2 Goodrich-Amram 2d § 1032:2. See also: Maxson v. McElhinney, 370 Pa. 622, 88 A.2d 747 (1952). Although the failure to state a cause of action upon which relief can be granted is never waived, this is merely “a restatement of the basic principles that a claim without legal merit cannot sustain a verdict or judgment---- The pleadings become irrelevant on this issue. Whether the claim ... is valid is a matter of law for the court, not a matter of pleading technique for the parties.” 2 Goodrich-Amram 2d § 1032:5 (emphasis added).

When the trial court questioned the sufficiency of the pleadings, moreover, the Seminary moved to amend its pleaded claim against Father Flynn to conform to the evidence. In this way, it sought to state more specifically the negligence of Father Flynn upon which it based its claims for contribution and indemnification. The trial court denied the motion and directed a verdict in Father Flynn’s favor.

Pa.R.C.P. 1033 contains specific authorization for an amendment which conforms a pleading to the evidence. Although such an amendment requires leave of court, it is now well settled that the right to amend must be liberally granted at any stage of the proceedings unless there is resulting prejudice to an adverse party. Connor v. Allegheny General Hospital, 501 Pa. 306, 311, 461 A.2d 600, 602 (1983); Schaffer v. Larzelere, 410 Pa. 402, 406-407, 189 A.2d 267, 270 (1963). See also: Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243, 431 A.2d 237, 239 (1981); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325, 319 A.2d 914, 918 (1974); Cingota v. Milliken, 286 Pa.Super. 117, 121-122, 428 A.2d 600, 602 (1981); Hoffman v. Hibbs, 235 Pa.Super. 470, 344 A.2d 546 (1975). Thus, it has been .held that general averments in the pleadings can be amended to make them specific in order to prevent a case from turning on purely technical objections. Keller v. R.C. Keller Motor Co., 386 Pa. 56, 124 A.2d 105 (1956). “ ‘Amendments which merely restate in a more distinct form the grounds set forth originally as the basis of the plaintiff’s cause of action ... or merely vary the cause of action, as originally stated, so that the subject matter remains the same, may be made at any time, even after the statute of limitations has run on the claim sued for.’ ” Hoffman v. Hibbs, supra, 235 Pa.Super. at 474, 344 A.2d at 548, quoting 3 Standard Pennsylvania Practice 711 (1952).

It is clear that the Seminary’s claim for contribution and/or indemnification from Father Flynn was not barred by any applicable statute of limitations; and the trial court did not so hold. The Seminary’s claims for contribution and/or indemnity were distinct from the plaintiff’s claim against Father Flynn; they did not accrue until it had first been determined that the Seminary was liable to the plaintiff. See: McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 312, 409 A.2d 362, 366-367 (1979); Kitchen v. Borough of Grampian, 421 Pa. 464, 219 A.2d 685 (1966); Hughes v. Pron, 286 Pa.Super. 419, 426, 429 A.2d 9, 12 (1981); Trinity Area School District v. Dickson, 223 Pa.Super. 546, 553, 302 A.2d 481, 485 (1973).

Under these circumstances, it was a manifest abuse of discretion for the court to enter a directed verdict in favor of Father Flynn without permitting an amendment which would have rendered the pleadings more specific and which would have brought them into conformity with the evidence. Even without such an amendment, as we have attempted to show, it was error to direct a verdict in favor of a party because of the generality of the pleadings against him when that party had not challenged the sufficiency of those pleadings pre-trial and after he had participated actively in a trial during which his liability was affirmatively demonstrated by competent evidence.

When this case is retried, it will be the responsibility of the trial court to instruct the jury regarding the duty of care owed by the Seminary in maintaining its pool. In this respect, it will be significant to determine whether the Seminary invited church groups to use its pool or, at least, consented to use of the pool by groups other than seminarians. Whether Rivera was an invitee, licensee or trespasser, will most likely be an issue of fact to be decided by the jury upon proper instruction by the trial court. Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980). Contrary to argument advanced by the Seminary, the evidence at the prior trial did not establish as a matter of law that the decedent had been a trespasser. There was ample evidence from which the jury could have found that the Seminary, as a general practice, had invited, or at least consented to, use of the pool by groups not directly affiliated with the Seminary. This was particularly so with regard to groups from the Church whose altar boys were using the pool at the time of the drowning. Its practice regarding admission of groups required the Seminary to adopt precautions commensurate with the risk involved. Murdock v. Pennsylvania Railroad Co., 150 Pa.Super. 156, 27 A.2d 405 (1942).

Whether the Seminary’s negligence, if any, was a substantial factor in bringing about Rivera’s death will also be an issue to be determined by the jury upon proper instructions by the trial court. The Seminary has complained that at the first trial the. court refused a submitted point for charge on superseding cause. In view of our decision to award a new trial for other reasons, it is unnecessary to determine the correctness of the Seminary’s requested instruction. It may be observed, however, that if the trial court adequately and accurately instructed the jury with respect to causation, reversible error will not be found merely because the court failed to accept a specific point on superseding cause. Piekarski v. Club Overlook Estates, Inc., 281 Pa.Super. 162, 178, 421 A.2d 1198, 1207 (1980).

Because the same issue may arise upon a retrial, we consider and comment briefly upon the contentions of the Seminary and the Church that the trial court erred in permitting portions of Father Hagan’s pre-trial discovery depositions to be read to the jury as substantive evidence during plaintiff’s case in chief. Pa.R.C.P. 4020(a)(2) provides:

The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a party or a person designated under Rule 4004(a)(2) or 4007.1(e) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose. (Emphasis added).

This rule was lifted from federal practice. The term “managing agent,” according to the federal decisions, “should not be given too literal an interpretation but rather should depend largely on whether the interests of the individual involved are identified with those of his principal and on the nature of his functions, responsibilities and authority ... respecting the subject matter of the litigation.” Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 96 (S.D.N.Y.1968), quoting Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254 (E.D.N.Y.1962). Whether a person is a managing agent “is to be answered pragmatically on an ad hoc basis.” Reliable Volkswagen Sales and Service Co. v. World-Wide Automobiles Corp., 26 F.R.D. 592, 594 (D.N.J.1960).

[S]ome of the practical considerations to be appraised are (1) whether there is any danger that the proposed deponent’s interests at the time of the taking of the deposition are adverse or hostile to the party whose managing agent he is alleged to be; otherwise stated, whether the deponent’s interests are still identified with his principal’s and whether he is loyal to his principal; (2) whether the deponent is invested by his principal with general powers to exercise his judgment and discretion in dealing with his principal’s matters with respect to the subject-matter of the litigation; (3) whether the deponent is a person who could be depended upon to carry out his principal’s direction to give testimony at the demand of a party engaged in litigation with the principal; (4) what are the deponent’s functions, powers and duties (as well as his rank or title) with reference to the subject-matter of the litigation; (5) whether any person or persons in higher authority than the deponent sought to be examined are in charge of the particular matter or possessed of the information as to which the examination is sought.

United States v. Dorothy McAllister, 24 F.R.D. 316, 318 (S.D.N.Y.1959).

In the instant case, Monsignor Vincent M. Burns was the Rector of the Seminary. Requests to use the pool came to him. However, he would refer them to Father Hagan, who was Dean of Students. It was Father Hagan who scheduled the use of the pool so as to avoid conflicts and who was responsible for enforcing rules adopted by the Seminary for use of the pool by seminarians and others. Father Hagan, whose loyalty to the Seminary was above question, had been invested directly with day to day supervision of the swimming pool and possessed greater familiarity with its operation than any other person. As such, we cannot say that the trial court erred in concluding that he was managing agent of the pool. Therefore, it was not error to allow his depositions, to be read to the jury by counsel for the plaintiff.

Both the Church and the Seminary have complained about evidentiary rulings and jury instructions pertaining to Ms. Rivera’s proof of damages. Because the case must be retried, several observations may be appropriate. “[A] claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough.” Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 453-454, 197 A.2d 721, 727 (1964). However, the “law does not require that proof in support of claims for damages or in support of ... compensation must conform to the standard of mathematical exactness.” Lach v. Fleth, 361 Pa. 340, 352, 64 A.2d 821, 827 (1949). Testimony concerning lost fringe benefits, it has been held, is properly received; lost fringe benefits can be considered in making an award in a death case, at least to the extent that they are not wholly speculative and can be translated into income reasonably to be anticipated if the decedent had lived. See: Vizzini v. Ford Motor Co., 72 F.R.D. 132, 137 (E.D.Pa.1976), rev’d on other grounds, 569 F.2d 754 (3rd Cir.1977). Income tax consequences are not to be considered by the jury. “Income tax as it relates to damages should be mentioned neither in argument nor in jury instructions.” Gradel v. Inouye, 491 Pa. 534, 547, 421 A.2d 674, 680 (1980). Accord: Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530, 538, 190 A.2d 293, 298 (1963). Finally, the projected loss of future earnings is not to be discounted or reduced to present value. Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980).

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . Plaintiff relies on decisions of the courts in New Jersey which limited the effect of a New Jersey recreational use statute to landowners in rural and semi-rural areas. See: Harrison v. Middlesex Water Co., 80 N.J. 391, 402, 403 A.2d 910, 915 (1979); Boileau v. DeCecco, 125 N.J.Super. 263, 266-68, 310 A.2d 497, 499-500 (1973). This reliance is misplaced. Not only could such a limitation be found in the language used by the legislature in New Jersey, but such an interpretation was suggested by a statutory construction act in New Jersey which required that any statute in derogation of the common law be strictly construed. See: Boileau v. DeCecco, supra at 266-68, 310 A.2d at 500.

      . The Seminary has not preserved for appellate review and we do not consider whether violation of an administrative regulation is negligence per se or merely some evidence of negligence. But see: Brogley v. Chambersburg Engineering Co., 306 Pa.Super. 316, 319-20, 452 A.2d 743, 745-746 (1982); Weimer v. Westmoreland Water Co., 127 Pa.Super. 201, 207-208, 193 A. 665, 667-668 (1937).

      . It may be observed that pursuant to Pa.R.C.P. 4007.1(e) a corporation or association can be called upon to name a person to testify to matters “known or reasonably available to the organization” and the depositions of such person may then be "used by an adverse party for any purpose." Pa.R.C.P. 4020(a)(2).


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    474 A.2d 617
    COMMONWEALTH of Pennsylvania v. Blanca MELENDEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed March 30, 1984.

      William C. Anderson, York, for appellant.
    Floyd Paul Jones, York, for Commonwealth, appellee.

      Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of York County.

Appellant, Blanca Melendez, was charged with delivery of heroin and criminal conspiracy. Appellant was arrested on those charges in December, 1981. On March 25, 1982, appellant went to trial before a jury after her motion for a continuance was denied, and was convicted of both counts. She filed post-trial motions on April 2, 1982, which were denied on June 23, 1982. On July 26, 1982, appellant was sentenced to serve a term of imprisonment at the State Correctional Institution at Muncy for not less than two (2) nor more than four (4) years. Her subsequent motion for reconsideration of sentence was denied and this timely appeal followed.

Appellant raises four issues for our consideration:

I. Whether the Court should have granted Defendant’s Motion for a Continuance.
II. Whether the Court should have either suppressed or granted other relief with respect to a statement allegedly given by Defendant because of the Commonwealth’s failure to provide that statement to Defendant.
III. Whether the Court should have admitted two packages of heroin into evidence.
IV. Whether the Court should have given a jury instruction concerning police officer testimony.

Brief for Appellant at 3.

Appellant first argues that the court should have granted her motion for a continuance. This motion was made on March 24, 1982, the day before the trial was to begin. The court discussed the motion with counsel in chambers on that date, and took testimony on the motion the following day. The ground for the motion was that appellant was suffering from heroin detoxification at the time of trial. Appellant’s counsel stated that she had been admitted to a drug rehabilitation center in York two days previous to trial. However, she left the center after only one day, and appellant’s counsel stated that she was physically unable to testify to the best of her ability.

Appellant testified that she had been addicted to heroin for about two years; she had not had any heroin for two days; on the previous day (March 24, 1982) she was feeling sick to her stomach, was shaky, had the chills, and could not think very well. (N.T. at 7). However, when asked by her counsel about her condition on that day, the actual day of trial, she testified:

Q. And how were you feeling this morning?
A. Just nervous.
Q. In what way?
A. I am still shaky.
Q. Are you having trouble concentrating?
A. No.
Q. Are you having trouble understanding the proceeding?
A. I don’t think so. I can understand.
Q. You are sure?
A. Yes.

N.T. at 7-8.

Upon cross-examination, she testified that she hadn’t seen a doctor in the last three days and did not know if it was necessary. (N.T. at 8).

The court itself also questioned her:

Q. Do you understand — did you understand the questions of your attorney?
A. Yes, sir.
Q. Do you understand the questions of the District Attorney?
A. Yes.
Q. Do you understand my questions?
A. Yes, sir.
Q. Do you know what you are going to be on trial for?
A. Yes.
Q. What?
A. Conspiracy.
Q. With reference to what, to doing what?
A. To delivery.
# * * 4s *
Q. But you do understand that you are charged with having dealt with heroin?
A. Yes, sir.
Q. And that is the reason you are present, to be on trial?
A. (Witness nodded head affirmatively.)
Q. Can you answer the questions that are put to you?
A. Yes, sir.

N.T. at 9-11.

It is well settled that the grant of a continuance rests within the sound discretion of the trial court and that the decision to deny the continuance will not be reversed unless a clear abuse of discretion is shown. Commonwealth v. Ritchie, 291 Pa.Super. 523, 436 A.2d 239 (1981). The lower court noted that appellant testified without hesitation and without apparent difficulty. Lower ct. op. at 1. Appellant called no other witnesses, and made no efforts to procure the presence of a physician or to present any other medical evidence to justify the motion. Given appellant’s affirmative testimony that she understood the proceedings and was able to participate knowingly and intelligently, we find no abuse of discretion in the court’s denial of a continuance.

Appellant also argues that the court erred in admitting the two packages of heroin into evidence because the Commonwealth failed to establish a proper chain of custody. Both Troopers Escalet and Lokhaiser testified that the heroin was given by Trooper Escalet to Trooper Lokhaiser at 2:40 p.m. on June 30, 1981 (N.T. at 32, 40). The second officer then transported the heroin to the crime lab for purposes of analysis. As established by defense counsel on cross examination, however, Trooper Lokhaiser had written the time of delivery as 1:00 p.m. in his police report. (N.T. at 44). In all other respects the report was consistent with the officers’ testimony. Appellant argues that because of the time discrepancies in the report, which was not admitted into evidence, the Commonwealth did not establish beyond a reasonable doubt the chain of custody of the heroin.

We do not find this to be the case. The defense was certainly permitted to use the police report to attempt to impeach the credibility of either trooper. Any differences in testimony may be argued to the jury and such differences may go to the question of the weight of the evidence, but certainly did not entitle appellant to a demurrer for failure to establish the chain of custody. “There is no requirement that the Commonwealth establish the sanctity of its exhibits beyond all moral certainty. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.” Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975), aff’d, 469 Pa. 24, 364 A.2d 886 (1976). We find that such a reasonable inference existed here.

Appellant next argues that the court erred in denying her request for a jury instruction on Trooper Escalet’s credibility. Appellant requested that the following instruction be given:

When police officers testify you should consider them as fallible human beings, and therefore, may make mistakes. Their testimony, therefore, is not necessarily entitled to any greater or lesser weight than the testimony of other witnesses merely because they are policemen.

Brief for Appellant at 16.

The court in its charge to the jury (N.T. at 87-89) gave the standard charge regarding the weight, credibility, and interest of all witnesses, either prosecution or defense. Lower ct. op. at 4. It then asked counsel for any additional or corrective instructions.

The Commonwealth asked for a corrective instruction concerning Trooper Escalet’s identification of appellant on a date prior to the incident at trial. (N.T. at 91). Counsel for appellant thereupon asked that his above instruction be given (N.T. at 92).

The court stated that it would try to equalize or balance the instruction to the satisfaction of both parties. (N.T. at 92-93). He then gave the following instruction:

That doesn’t mean, of course, that the officer’s testimony, if you believe it, that he saw this Defendant on prior occasions, should likewise be disregarded because that goes to another question. That goes to the question of identification and it would be proper for you to consider that.
On the other side, let me also state that by calling this to your attention now does not mean that I am giving overemphasis to the believability or credibility of the officer’s testimony as against the Defendant’s testimony.

N.T. at 94.

We find that this charge complies substantially with the appellant’s requested instruction and, in combination with the standard charge used earlier in this case, adequately covers the law on the question of witness credibility. We do not agree that Trooper Escalet’s testimony was highlighted at the expense of appellant. A trial court is not required to accept points submitted by a defendant verbatim. The court is free to use its own form of expression. Commonwealth v. Parks, 281 Pa.Super. 38, 421 A.2d 1135 (1980). However, the substance of the requested points that are applicable must be accurately and adequately presented to the jury. Id. To decide whether this requirement is met, the charge to the jury is to be read as a whole. Id. Having done so, we find no reversible error in the charge as given by the trial court herein.

Finally, appellant argues that the court should have either suppressed or granted other relief with respect to a statement allegedly made by appellant, due to the Commonwealth’s failure to provide that statement to appellant before trial.

Pa.R.Crim.P. 305 B(l)(b) provides that in all court cases, on request by the defendant, the Commonwealth shall disclose to the defendant’s attorney:

(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth^]

Pa.R.Crim.P. 305 D establishes a continuing duty to disclose:

If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.

Prior to trial, appellant had requested copies of written confessions or inculpatory statements, and the substance of any oral confessions or inculpatory statements. No such statements were provided to appellant. Nevertheless, during trial, at a side-bar conference, the Commonwealth, out of the presence of the jury, told the court that it intended to ask appellant about a certain statement that she had made to one Officer Daryman. The Commonwealth then asked appellant:

Q. You recognize that man there with the red hair?
A. Yes, sir.
Q. You went to see him a while ago, didn’t you?
A. What do you mean, a while ago?
Q. Well, you went and talked to him several days ago, didn’t you?
A. Yes, I did.
Q. And at that time, isn’t it true that you told him that you had been set up by another person by the name of Nunez in this thing?
A. Who?
Q. Nunez, N-U-N-E-Z.
A. That name don’t sound bell.
Q. Did you tell him you had been set up by somebody?
A. I don’t think I told him I was set up by somebody.

N.T. at 68-69.

Appellant’s counsel then asked to approach the bench and requested suppression of the statement (if any) made to Officer Daryman due to a violation of (1) appellant’s constitutional rights and (2) the mandatory disclosure rule of Pa.R.Crim.P. 305 B(l)(b). Counsel for appellant made no motion for a mistrial or curative instruction. The Commonwealth did not pursue the matter after sidebar, and the statement was never admitted into evidence. Officer Daryman did not testify in the trial.

Pa.R.Crim.P. 305 E provides the remedy for failure to comply with the disclosure rule. “Under Section (E) of Pa.R.Crim.P. 305, when it becomes apparent that a party has failed to comply with the provisions of the Rule, the trial court has broad discretion in choosing an appropriate remedy.” Commonwealth v. Parente, 294 Pa.Super. 446, 451, 440 A.2d 549, 552 (1982). The court may order the offending party to permit discovery or inspection, or it may grant a continuance, or it may prohibit the use of the evidence not disclosed, or it may enter such order as it deems just under the circumstances. Here, the court actually did nothing other than to indicate to the district attorney that he was “getting to the area of overkill again” and was “on dangerous ground”; the court appeared to let the decision to proceed up to the district attorney, who elected not to do so. (N.T. at 70).

Our examination of the relevant case law has disclosed no case exactly on point. The cases cited by appellant in her brief involve situations where the inculpatory statement was admitted over objection of the defense. In Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978), the defendant testified in his own behalf that he did not know the victim and had never spoken to him. The prosecution was then permitted, over defendant’s objection, to use a police officer’s report of an oral statement given by defendant, in which defendant had admitted speaking to the victim on the day of the crime. The trial court refused to grant a new trial, because despite the prosecutor’s misconduct (in not disclosing the inculpatory statement), the claimed prejudice to defendant was not shown. The supreme court reversed and granted a new trial, holding that in view of the critical importance of defendant’s credibility and the fact that the prosecution’s use of the report undeniably damaged appellant’s credibility, the nondisclosure of the statement was not harmless error. Id., 476 Pa. at 473, 383 A.2d at 198.

In Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982), the undisclosed inculpatory statement was referred to during the direct examination of a police officer. Defendant asked for a sidebar and objected on the basis of nondisclosure of the statement. He moved for a mistrial and to strike the testimony; both motions were denied. However, the trial judge later changed his mind and held a suppression hearing the following day to determine whether the statement should have been suppressed. After the hearing was held, the court again found no reason to suppress the statement. We affirmed and held that the procedure adopted by the lower court did not deny defendant a fair trial. Id., 302 Pa.Superior Ct. at 340, 448 A.2d at 1072.

In Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988 (1983), the undisclosed inculpatory statement was also presented by a police officer. Defendant moved for a mistrial, which was denied. As in Keeler, the trial judge decided, following further testimony, to conduct a suppression hearing, after which it ruled that the statement was admissible. We reversed and granted defendant a new trial, based on violations of defendant’s Miranda rights and on a violation of the disclosure rule. The court stated: “We believe that whenever the Commonwealth fails to comply with Rule 305 B(l)(b) with regard to a statement that was obtained in violation of Miranda rights and is therefore inadmissible, a sanction is required, and that here, that saction should have been to grant a new trial.” Id., 310 Pa.Superior Ct. at 393, 456 A.2d at 992.

Finally, in a case decided by this court just a few months ago, Commonwealth v. Palmer, 319 Pa.Super. 56, 465 A.2d 1050 (1983), we affirmed the trial court’s grant of a new trial in a similar case. The Commonwealth had attempted to introduce into evidence, on direct examination, an undisclosed inculpatory statement made by the defendant to a police officer. Defendant’s objection was sustained. Later, during cross-examination of defendant, the district attorney asked if defendant had made any inculpatory statements to the officer. Defendant said no. On rebuttal, the officer was called back to the stand and, over defense objection, was allowed to introduce the inculpatory statement. The trial court later decided that it had been error to allow admission of the statement for impeachment purposes. Id., 319 Pa.Superior Ct. at 58, 465 A.2d at 1051. We found no abuse of discretion in the grant of a new trial.

The instant case is unlike any of the above cases in two important aspects. The alleged inculpatory statement made by appellant to Officer Daryman was never admitted into evidence at any point in appellant’s trial. While this appears to have been the result of a decision by the prosecutor rather than by order of the court, (N.T. at 70), the fact remains that the statement itself was not admitted. Also, this incident occurred entirely during cross-examination of appellant, rather than another witness. We note also that counsel for appellant asked only for suppression of the statement; he did not ask for a mistrial, a continuance, or curative instructions.

We do not condone violation of the discovery rules, particularly where nondisclosure of something as crucial as an inculpatory statement is involved. However, since appellant merely asked for suppression of the statement, and since the prosecutor did not pursue the matter nor admit the statement into evidence, combined with a sua sponte jury instruction by the court to disregard any implication that appellant may have had a conversation with “other persons in the past,” (N.T. at 86), we hesitate to find an abuse of discretion.

Nonetheless, inasmuch as the statement allegedly given by appellant apparently indicated that she believed she had been set up by someone, such statement was in conflict with her defense at trial, namely that she was not involved in the incident at all. Since this case was essentially one of credibility between her testimony and that of the undercover police officer, she argues that she was prejudiced by the question having been asked of her. If she had known of the existence of the inculpatory statement, she may not have chosen to testify, and she would probably have moved to suppress it because it was allegedly given to the police at a time when counsel was not present.

Appellant’s argument is well taken. In view of our recognition of the importance of a criminal defendant’s credibility, and the fact that the prosecutor’s nondisclosure went solely to the issue of appellant’s credibility, the prejudicial impact of the nondisclosure, intentional or otherwise, cannot be considered harmless error. Commonwealth v. Jenkins, supra, 476 Pa. at 473, 383 A.2d at 198. An error is not harmless unless it could not possibly have affected the jury in reaching its verdict. Commonwealth v. Settles, 442 Pa. 159, 275 A.2d 61 (1971). “[A] new trial might still have been necessary if it had been shown that the nondisclosure of the notes had affected the fairness of the trial.” Commonwealth v. Parente, supra, 294 Pa.Superior Ct. at 452, 440 A.2d at 552.

Here, appellant had no opportunity to (1) object to the statement until she was questioned concerning it on cross-examination, (2) contest its voluntariness, (3) timely ask that it be suppressed, or (4) do anything concerning it, because the Commonwealth chose not to inform her as to its existence prior to trial. Since there was no suppression hearing held by the lower court to determine the voluntariness of, or the prejudice resulting from, the statement, as in Commonwealth v. Johnson, supra and Commonwealth v. Keeler, supra, we find it necessary to reverse and remand this case to the lower court for a new trial.

Reversed and remanded for a new trial.

      . Pa.R.Crim.P. 301 concerns continuances:
      Rule 301. Continuances
      (a) The court may, in the interests of justice, grant a continuance, of its own motion, or on the motion of either party. The court shall on the record identify the moving party and state of record the court’s reasons justifying the granting or denial of the continuance.
      (b) A motion for continuance on behalf of the defendant shall be made not later than forty-eight (48) hours before the time set for trial. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.

      . The Commonwealth may have attempted to further question appellant concerning the statement to Officer Daryman, when it was questioning appellant as to the occupants of her house:
      Q. Sugar is not Nunez?
      A. I don't know the last name. I only know her by Sugar.
      Q. Did you say you told Officer Daryman?
      A. When I saw her—
      [Counsel for appellant]: Your Honor, I am going to object to any references to Officer Daryman for the reasons that I just stated a few minutes ago.
      THE COURT: No, this is cross examination.
      [District Attorney]: I will withdraw it.
      N.T. at 74.

      . In at least four recent cases involving nondisclosure of either inculpatory statements or eyewitness statements, which were all admitted into evidence through testimony of the participating witness, the trial courts, upon objection by defendant due to nondisclosure, all offered to defendant the remedy of a continuance. In most cases, this remedy was refused by the defendant, but upon appeal, a continuance, plus cautionary instructions to the jury in at least one case, was held to be an adequate remedy for nondisclosure. Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983); Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549 (1982); and Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982).

      . In his motion for a new trial, counsel for appellant did raise this issue.


author: JOHNSON, Judge:

text:
    474 A.2d 624
    Robert J. RUSISKI and Margaret M. Rusiski, his wife v. Edward M. PRIBONIC and Andrea E. Pribonic, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1983.
    Filed March 30, 1984.

      Raymond Radakovich, Pittsburgh, for appellants.
    Robert A. Seewald, Pittsburgh, for appellees.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This appeal arises from an equity action requesting specific performance of an agreement of sale for the purchase of improved real property.

Appellants Edward M. and Andrea E. Pribonic (Pribonics/appellants) are the owners of a tract of real property, an improved portion of which they desired to sell. Appellees Robert J. and Margaret M. Rusiski (Rusiskis/appellees), plaintiffs below, entered into a sales agreement with the Pribonics on December 2, 1978 for the purchase of the improved property for the sum of $63,900.00. The Rusiskis also tendered $1,500.00 to the Pribonics in hand money at that time. Because the improved property was nearly landlocked by the remainder of the Pribonic’s property, a rider was attached to the sales agreement to provide the Rusiskis with a right of way over a portion of the property retained by the Pribonics. The rider, drafted by counsel for the Pribonics, set forth:

Sellers agree at the time of the conveyance to grant buyers a right of way which includes roughly the last sixty feet of the driveway, leading from the acreage to McKee Road. This right of way is to be granted in the deed and is to be used solely by the buyers for the purposes of ingress and egress and it is clearly understood that the owners may, from time to time, use this portion of the land for water lines, sewer lines, electrical lines, gas and other utility functions.

The Rusiskis’ mortgage application, in the amount of $57,500.00 was approved on January 9, 1979. Closing on the sale was then scheduled for March 9, 1979. Lawyer’s Title Insurance Company prepared a deed, which included a right of way provision stating:

ALSO, together with a right in the grantees, their heirs and assigns, to use a driveway as presently located on property of grantors immediately abutting the premises herein described on the North for egress and ingress to McKee Road provided that grantors, their heirs and assigns, hereby reserve the right to use the property over which the driveway runs for water lines, sewer lines, electrical lines, gas and other utility functions so long as said reservation does not interfere with grantees’ right of ingress and egress.

At the closing , counsel for the Pribonics indicated to the Rusiskis that this language in the deed regarding the right of way was unsatisfactory, alleging that the right reserved for utility lines, etc. was intended to apply to the Rusiskis, not the Pribonics (grantors). Counsel for the Pribonics therefore scratched out the proviso and tendered the deed to the Rusiskis. The Rusiskis refused to accept the altered deed, but indicated they would accept any deed consistent with the terms of the agreement of sale.

A new deed was subsequently prepared by the Pribonic’s counsel and a new closing date scheduled, however the Pribonics refused to sign the new deed, claiming the prior misunderstanding was a breach of the agreement. The Rusiskis were prepared to close at this second scheduled closing and willing to accept whatever language the Pribonics required in the right of way provision, but neither the Pribonics nor their counsel appeared. Three days later, the instant equity action was commenced.

The chancellor found for the Rusiskis and ordered appellants to convey the property to them with a right of way provision as originally prepared in the first deed. The purchase price was set at $46,758.36. Also, appellants were to credit the hand money, plus interest, against the purchase price and appellants were barred from removing any improvements made by them. Following denial of exceptions, the instant appeal was commenced.

Appellants raise three issues on appeal: (1) whether the court erred in finding the sales contract binding, following the first aborted attempt at closing, (2) whether appellees’ action was barred by the doctrine of unclean hands and (3) whether the damages awarded were improper.

As stated in Sorokin v. Krasner, 289 Pa.Super. 324, 327, 433 A.2d 88, 89-90 (1981):

The scope of review of an appellate court in the consideration of an appeal from a final decree in an equity action is well established. A Chancellor’s findings of fact, approved by the court en banc, are entitled to the weight of a jury’s verdict and will not be reversed on appeal if supported by adequate evidence. The Chancellor’s findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. We should not reverse on appeal unless it is evident that the lower court abused its discretion, lacked evidentiary support for its findings, or was capricious in its disbelief of evidence submitted. The same principles apply when a single judge, rather than a court en banc, reviews the case. (Citations omitted)

I.

Appellants allege, as part of the first issue, that there existed no “meeting of the minds” regarding the right of way provision and therefore, based on this material mistake, the entire instrument was void. They argue that the interpretation of the term “owners” in the provision, as set forth in the sales agreement, can only be reasonably interpreted as referring to the Rusiskis.

The chancellor, in his adjudication, found that the only reasonable interpretation was that the term “owners” was intended to refer to the Pribonics and further held that even if the opposite interpretation was made, appellants were not entitled to refuse appellees’ further attempts to perfect the sale, as time was not of the essence. We agree.

It is black letter law that there must be a meeting of the minds on the essential elements of the parties’ agreement for a contract to be enforceable. Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288 (1982). Concerning the allegation of mistake, if the mistake is not mutual, but unilateral, and not due to the fault of the party not mistaken, but to the negligence of the party acting under the mistake, no basis for relief has been afforded. McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 288 (1969).

In the instant case, it was appellants who had the original disputed provision prepared. Appellees based their belief, that the term “owners” referred to the Pribonics, on prior negotiations with the Pribonics where appellees expressed their concerns regarding the possible future commercial development of the property retained by the Pribonics.

When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; the language speaks for itself and cannot be given a meaning other than that expressed. East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965). Therefore, where the words of a written contract are clear and unambiguous, intent is to be determined solely from the express language of the agreement. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Moreover, even if the language in dispute here could be considered doubtful, doubtful language in an instrument is construed most strongly against the drafter thereof, i.e. the Pribonics. In re Breyer’s Estate, 475 Pa. 108, 379 A.2d 1305 (1977).

We agree with the chancellor that the term, “owners” is susceptible to only one reasonable interpretation: “owners” refers to the Pribonics, as owners of the property to be subject to the right of way. Taking the provision in its context in the deed, it is illogical to interpret “owners” as referring to the Rusiskis, as they “owned” nothing prior to the passage of title by deed.

Appellants next allege that their modification of the original deed was proper and the transaction negated by appellees’ refusal of tender. The original deed prepared complied with the sales agreement provision regarding the right of way, albeit substituting the term “grantor” for “owner”. It therefore was improper for appellants to have attempted to modify the deed. We find no impropriety by appellees in refusing to accept the deed as modified by appellants, which modification did not comport to the provisions of the sales agreement. However, we do find it improper for appellants to have thereafter refused to perform after appellees agreed to a new provision proposed by counsel for the Pribonics and requested a second closing in order to tender performance. Appellants cannot now claim that their improper modification of the original deed relieved them from all further liability to tender performance in accordance with the sales agreement.

The third allegation argued by appellants in issue one is that the chancellor erred in ignoring inconsistencies in appellees’ presentation of their case, regarding the interpretation of the right of way provision.

A chancellor’s findings of fact, approved by a court en banc, are controlling on appeal and will not be disturbed in the absence of manifest error and where the record supports such findings, particularly with regard to the weight and credibility of witness’s testimony. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970), cert. den. 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 28, 30 L.Ed.2d 121 (1971). Our review of the record reveals no error in the chancellor’s findings of facts.

We therefore find no merit in appellants’ first issue.

II.

Appellants’ second issue is whether the action should have been barred by the doctrine of unclean hands. The thrust of their argument is that time was of the essence in this agreement and that appellees intentionally delayed the consummation of the sale.

The bar of unclean hands is applicable only where the wrongdoing of the plaintiff directly affects the equitable relationship subsisting between the parties and is directly connected with the matter in controversy. Hartman v. Cohn, 350 Pa. 41, 38 A.2d 22 (1944). Appellants’ argument is specious, however, because (1) the chancellor was clearly correct that the evidence failed to support the allegations of wrongdoing and (2) the chancellor was correct in holding that time had not been made of the essence in the instant sales agreement. The agreement in paragraph 18 sets forth the procedure for making time of the essence, namely by written notice. No such notice was given by appellants and therefore, time cannot be considered to have been of the essence. Also, it is clear that time is not generally regarded as of the essence in a contract for the sale of real property. Shumaker v. Lear, 235 Pa.Super. 509, 345 A.2d 249 (1975).

III.

Appellants’ final argument is whether it was error to grant specific performance and to grant a reduction in sales price, based on the fluctuation in mortgage rates.

Specific performance should be granted only where the facts clearly establish plaintiff’s right thereto, where no adequate remedy at law exists and where justice requires it. Clark v. Pa. State Police, 496 Pa. 310, 436 A.2d 1383 (1981). As a remedy for a breach of contract, specific performance will not be granted unless the agreement to be enforced is complete and certain. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. den. 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). Such relief may be granted if the terms of an agreement for the sale of realty are violated by the vendor. Payne v. Clark, 409 Pa. 557, 187 A.2d 769 (1963). Based on our review of the entire record, we find no abuse, due to the unique nature of improved real property and appellants’ conduct in improperly refusing to perform.

The chancellor ordered the sale of the property be made at a purchase price of $46,758.36 with credit given to appellees for the $1,500.00 in hand money plus interest and credit given to appellants for improvements in the amount of $14,300.00. The $46,758.36 figure was calculated by adding the value of improvements ($14,300.00) to the original purchase price ($63,900.00) and then subtracting $31,-441.64, the present value of the increased cost to appellees of securing a mortgage at 15.25% at the date of the decree nisi, versus the mortgage rate of 10.25% on the loan of $57,500.00, which appellees had secured at the time of the two closings.

Appellant argues that this reduction in purchase price is shocking, unforeseeable and likely to cause a windfall to appellees.

We note that consequential damages, to be recoverable, must have been reasonably foreseeable at the time the contract was made. Frank B. Bozzo, Inc. v. Electric Weld Division of Fort Pitt Bridge Division of Spang Industries, Inc., 283 Pa.Super. 35, 423 A.2d 702 (1980), aff’d 495 Pa. 617, 435 A.2d 176 (1981). However, such relief in addition to the actual specific performance is not truly categorized as damages, but as an accounting by which the chancellor fairly apportions the costs between the parties. See Easton Theatres v. Wells Fargo Land & Mortgage Co., Inc., 265 Pa.Super. 334, 401 A.2d 1333 (1979), app. dism’d, 498 Pa. 557, 449 A.2d 1372 (1982); 71 Am.Jur.2d, Specific Performance § 216 (1973).

We disagree that these “damages” were unforeseeable, in any event. The sales agreement contained a rider making the sale contingent on appellees obtaining a mortgage commitment at a specified interest rate. This clearly gave appellants notice that the mortgage interest rate was material to appellees’ performance of the contract.

Although no Pennsylvania appellate court precedent exists for the reduction of sales price of realty by the difference in mortgage interest rates in a specific performance action, other jurisdictions have approved an identical method of calculation: Reis v. Sparks, 547 F.2d 236 (4th Cir. 1976) (applying Maryland law); Hutton v. Gliksberg, 128 Cal.App.3d 240, 180 Cal.Rptr. 141 (1982); Walker v. Benton, 407 So.2d 305 (Fla.Dist.Ct.App.1981); Goodwin v. Lindbert, 101 Mich.App. 754, 300 N.W.2d 514 (1980); Regan v. Lanze, 47 A.D.2d 378, 366 N.Y.S.2d 512 (N.Y.App.Div.1975) rev’d on other gds., 40 N.Y.2d 475, 354 N.E.2d 818, 387 N.Y.S.2d 79 (1976). We find no error in the reduction of the original purchase price by the chancellor’s method of calculating the mortgage interest rate differential.

Order affirmed.

      . The Pribonics did not attend the closing, but had executed the deed prior to the closing date.

      . Subsequent to institution of the action, an advertisement for sale of the entire property owned by the Pribonics appeared in the newspaper. The Rusiskis requested a preliminary injunction to prevent any sale, which was denied. However, the land was not again offered for sale.

      . The denial of appellants’ exceptions was approved by the court en banc below.

      . Specifically, the trial court determined that the difference in monthly payments on the amount originally borrowed by appellees ($57,-500.00), with an interest rate of 15.25% versus 10.25%, amounted to $203.55. Over the life of the mortgage, (20 years) the total was calculated at $48,852.00. This sum was then reduced to a present value with a present worth factor of 6%, to arrive at the $31,441.64 figure.


text:
    474 A.2d 630
    Larry D. SOMERS, Appellant v. Ronda Faye SOMERS.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed April 19, 1984.

      Niles Benn, Dillsburg, for appellant.
    Ronda Faye Somers, appellee, in propria persona.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Larry D. Somers, in an appeal from an order granting him visitation with three children, challenges the reasonableness of a condition imposed by the court which disallows visitation “between the hours of 9:30 o’clock p.m., and 9:00 o’clock a.m., in the presence of Mrs. Marilyn Bowers or any other member of the opposite sex to whom he is not related by blood or marriage.” We will cause the order to be modified and as modified will affirm the order granting visitation.

Larry D. Somers, appellant, and Ronda Faye Somers, appellee, were married in 1969 and thereafter became the parents of three children: Todd, born December 28, 1969; Heather, born January 14, 1975; and Jaime, born September 5, 1978. The parties were separated in March, 1981, after which the children continued to live with their mother in New Franklin, Franklin County. Immediately following separation, appellant moved into the home of his parents in Chambersburg. This arrangement continued only for a short period, and appellant then took a two room apartment in Dillsburg, York County. While appellant resided with his parents, appellee had no objection to a liberal and flexible schedule for visitations by appellant. After appellant had moved to Dillsburg, however, appellee objected to visitations outside of Franklin County because appellant’s girl friend, a divorcee with two children, resided in Dillsburg. Appellant respected appellee’s wishes and visited his children in appellee’s home; but he filed a petition seeking a court order allowing broader visitation. After hearing, the court entered an order confirming primary custody in appellee and granting appellant rights of visitation on alternating weekends and for two weeks during each summer vacation period. The court also imposed the restriction which appellant finds objectionable.

“In a visitation proceeding, as in one for custody, the singular concern is the interest and welfare of the children involved.” In re Stuck, 291 Pa.Super. 61, 63, 435 A.2d 219, 220 (1981), citing Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981). In Bury v. Bury, 312 Pa.Super. 393, 458 A.2d 1017 (1983), we said:

“We recognize that in matters such as the hours of a visitation, great deference should be given to the hearing judge, who is in a better position than we to assess the particular circumstances. However, we must also recognize that to fulfill our own responsibility, we should not accept a finding that is not supported, or is contradicted, by the record.”

Id., 312 Pa.Superior Ct. at 397, 458 A.2d at 1019, quoting Scarlett v. Scarlett, 257 Pa.Super. 468, 473, 390 A.2d 1331, 1334 (1978). See: Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 357, 462 A.2d 1386, 1389 (1983). A parent’s visitation rights should not be limited in the absence of record evidence that the parent “possesses] such severe mental or moral deficiencies as to constitute a grave threat to the welfare of the child.” Id., citing Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977). “[A] parent may not be denied custody or even visitation solely because of an involvement in a meretricious relationship.” Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 250, 397 A.2d 1192, 1193 (1979), citing Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) and Commonwealth ex rel. Sorace v. Sorace, 236 Pa.Super. 42, 344 A.2d 553 (1975). See: Brooks v. Brooks, 319 Pa.Super. 268, 275, 466 A.2d 152, 156 (1983). Reasonable conditions, however, may be imposed upon visitations by a parent. Commonwealth ex rel. Drum v. Drum, supra. See generally: In re Damon B., 314 Pa.Super. 391, 395, 460 A.2d 1196, 1198 (1983). In determining the reasonableness of conditions which limit a parent’s visitation rights, the principal consideration must be the best interests and welfare of the children.

The condition imposed by the court that visitation was not to occur in the presence of any “member of the opposite sex to whom [appellant] is not related by blood or marriage” was overly broad and unreasonable. In Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981), a similar restriction imposed upon a mother’s right of visitation was set aside because it was so broad that, literally interpreted, it barred contact with “casual friends, the mother’s attorney, taxi drivers, ministers, doctors or whomever.” Id., 284 Pa.Superior Ct. at 467, 426 A.2d at 141. In the instant case, in addition to lawyers, taxi drivers, ministers and doctors, the court imposed limitation prevents visitations in the presence of waitresses, nurses, school teachers and store clerks. For the reasons noted in the Dile case, therefore, we hold this restriction unnecessarily and unreasonably broad.

The remaining restriction was intended to prevent overnight visitations in the presence of appellant’s girl friend. This was not unreasonable. Appellee, the mother of the children, professed to be a practicing, born-again Christian who attended church frequently with her children. She said that the relationship between appellant and his girl friend was contrary to the children’s religious and moral training and caused them embarrassment at church and also tension in their relationship with her.

Under similar circumstances, this Court upheld a general restriction that visitations should not at any time take place in the presence of the father’s girl friend. See: Commonwealth ex rel. Drum v. Drum, supra. Also, a similar restriction was imposed by a panel of this Court in Dile v. Dile, supra, where it was necessary to safeguard the moral development of the children who were the subjects of a visitation order.

The restriction imposed by the court in the instant case does not prevent the children from being with appellant at times when Mrs. Bowers is present. It provides only that the children shall not be in her presence between the hours of 9:30 o’clock in the evening and 9:00 o’clock the following morning. This limitation was initially suggested to the court by appellant as an accommodation to appellee’s concern. The hearing court accepted appellant’s proposal, but instead of requiring removal of the children from the girl friend’s presence at 1:00 a.m., as appellant had suggested, the court opted for the earlier hour of 9:30. When we recall that the youngest child was only four years of age at the time of the hearing, we cannot say that the earlier hour was unreasonable. It may also be observed that upon dissolution of the marriage presently existing between the parties, the concern which prompted the condition on appellant’s right of visitation will disappear. Thereafter, the condition will be unnecessary and, indeed, will serve no valid purpose.

The order providing for custody and visitation is modified by striking from it the broad language prohibiting visitation in the presence of any “member of the opposite sex to whom [appellant] is not related by blood or marriage.” As so modified, the order is affirmed.


text:
    474 A.2d 632
    COMMONWEALTH of Pennsylvania v. Russell Earl SAMUELS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed April 19, 1984.

      Robert D. Bacher, Assistant Public Defender, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was convicted of receiving stolen property after a non-jury trial on January 5, 1982 and subsequently sentenced to six to twelve months imprisonment. This direct appeal followed.

The record indicates that police obtained a search warrant on April 28, 1981 to search appellant’s residence for controlled substances. The warrant affidavit set forth that three police officers had observed what appeared to be a marijuana plant on the roof of appellant’s residence on the previous day. The affiant officer had, later that previous day, proceeded to the residence, but observed that the plant was no longer there. The affidavit also set forth information received from a confidential informant prior to the observations that appellant was selling drugs from the residence. No facts relating to the informant’s reliability or credibility were set forth.

Appellant’s residence was searched on April 28, 1981 and four Pennsylvania vehicle inspection stickers were recovered from inside a calculator wallet located inside a closed drawer within the residence. The stickers were subsequently determined to have been stolen.

Appellant raises two issues: (1) was there probable cause for the issuance of the warrant, where the warrant failed to establish the informant’s reliability and where the affiant’s subsequent observation of the residence failed to reveal the previously observed plant and (2) was the seizure of the inspection stickers lawful, when based on a search warrant for controlled substances and the fact that the stickers were not known to be stolen at the time of their seizure.

Initially, we note that this second issue has been waived. For an issue to be preserved for appeal, it must be specifically raised in written post-verdict motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Appellant raised, by way of post-verdict motion, that the trial court erred in not sustaining his suppression motion. The written suppression motion did not raise any aspect of the second issue as a ground for relief. Hence, the issue has not been properly preserved. See Commonwealth v. Austin, 484 Pa. 56, 398 A.2d 941 (1979); Commonwealth v. Turner, 284 Pa.Super. 395, 425 A.2d 1161 (1981).

As to the first issue, it is well established that a search warrant affidavit must contain sufficient facts to permit the issuing judge to conclude with reasonable certainty that a crime has been committed and that evidence or fruits thereof may be found on the premises to be searched. Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983). It is only the probability and not a prima facie showing that is required. Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277 (1982). The affidavit is to be tested by this court in a commonsense and realistic manner and not subjected to overly technical interpretations, according the issuing authority’s determination of probable cause great deference on review. Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980).

Appellant argues that the affidavit lacked any support for the informant’s reliability. We agree. However, viewing the affidavit as a whole, the information provided by the three police officers who personally observed the marijuana plant on the roof was sufficient. Where such an informant’s report does not establish probable cause for a search, but is corroborated by independent observation, the issuance of the search warrant becomes constitutionally justified. Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983). See also Commonwealth v. Chamberlain, 277 Pa.Super. 503, 419 A.2d 1261 (1980) (observation of tub on roof of residence containing marijuana plants furnished sufficient probable cause to issue search warrant, where private citizen informed police of plants and police officer personally observed plants). Hence, the informant’s reliability and credibility was irrelevant, once the officers obtained personal knowledge of the incriminating plant.

As to the question of staleness, we again find no merit. A determination as to staleness of information for a search must be made on a case-by-case basis. Commonwealth v. Ryan, supra.

It is axiomatic that stale information cannot supply probable cause necessary to support the issuance of a search warrant. Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979). However, in the instant case, the information supporting the probable cause for the warrant was obtained the day before the warrant was issued and clearly was not stale. We also find no merit to appellant’s allegation that the affiant officer’s failure to personally observe the plant on the day prior to the warrant’s issuance renders the information stale. It was proper for the issuing authority to conclude that the plant was probably located inside the residence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3925.

      . Other issues were raised in appellant’s post-verdict motions, but none deal with the two issues raised on appeal.


text:
    474 A.2d 635
    TONY PALERMO CONSTRUCTION v. Samuel P. BROWN and Rhona E. Brown, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Decided April 27, 1984.

      Michael T. Joyce, North East, for appellants.
    Robert J. Kelleher, Erie, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This appeal is brought from an order denying a petition to open a confessed judgment. The judgment had been filed on June 10, 1974 against both appellants, based upon an installment judgment note dated May 4, 1973 in the total sum of $15,999.60. The note provided for monthly payments of $133.33 over a ten year period, which payments were subject to the terms of a home improvement installment contract.

After filing the judgment note of record, the plaintiff, Tony Palermo Construction (Appellee), took no further action. On November 8, 1977, the defendants (Appellants) filed their petition to open the judgment. The petition contained the following averments, properly verified by Appellants’ counsel:

3. Your Petitioners have a meritorious defense to the claim, to-wit:
That Plaintiff did not perform any work under the Home Improvement Installment Contract and therefore cannot claim judgment upon a Note made subject to said contract.
4. Opening the judgment will not in any way prejudice the claim of the Plaintiff, who has done nothing but confess judgment on a Note.

At no time since the issuance of the rule to show cause on November 9, 1977 has the Appellee filed any answer or response to the allegation that Appellee did not perform any work under the home improvement contract or that opening the judgment would not in any way prejudice its claim. Although the trial court issued the rule to be “returnable at the next call of the argument list,” the matter was not praeciped to the argument list until October 1982, and then by Appellee.

On February 25, 1983, the court denied the petition on the grounds that Appellants had “failed to properly allege any legally sufficient explanation for their three and one-half year delay in filing this petition.” At the time of the entry of the order denying the prayer to open the judgment, and prior to the November 1982 argument list at which the case was presumably heard, Appellants had filed of record their Brief in support of the petition in which it was expressly stated that Appellant Rhona E. Brown was never informed nor did she receive notice of the judgment until November 1977, immediately after which she sought legal counsel and the petition to open was filed.

It is well-established that a petition to open a judgment by confession is an appeal to the sound discretion of the trial court. Tenreed Corp. v. Philadelphia Folding Box Co., 256 Pa.Super. 49, 389 A.2d 594 (1978). The exercise of this discretion will not be reversed in the absence of a manifest abuse of this discretion. Lincoln Bank v. Kelly, 282 Pa.Super. 261, 422 A.2d 1106 (1980).

The law is clear that one who petitions to open a confessed judgment must act promptly and offer a meritorious defense. First National Bank of Fryburg v. Kriebel, 311 Pa.Super. 428, 457 A.2d 961 (1983). There can be no dispute that Appellants’ petition sets forth a meritorious defense which has not been denied by Appellee.

The crucial factor in determining whether such a petition is timely is not the specific time which has elapsed, but the reasonableness of the explanation given for the delay. Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982). The timeliness of a petition to open is measured from the date notice of judgment is received. Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980). Appellants have explained their delay in filing the petition in their Brief, as submitted of record below.

However, Appellants failed to set forth any averment in their petition to explain the long delay in filing the petition. This court held in Landis v. Richmond, 249 Pa.Super. 418, 378 A.2d 365 (1977), that where a petition to open a confessed judgment some 17 months after entry of judgment failed to explain the delay in the petition, the lower court abused its discretion in granting relief to petitioner. The court also held that whether or not a meritorious defense was set forth in the petition was irrelevant, absent an explanation for the delay.

While Appellant Rhona E. Brown would urge upon us the inequity of denying the petition to open, based on the allegations made in Appellants’ brief to the trial court that she never received actual notice until some time in 1977, such urging cannot justify the failure to include the proper averments in the petition to open.

We therefore hold that Appellants’ failure to include, in their petition, an averment as to the reasons for the extensive delay in filing their petition was fatal. The inclusion of such information in a brief is insufficient, as the trial court could not accept facts from a party’s brief as evidence and use those facts as a basis for decision. W.W. Grainger, Inc. v. W.C. Ruth & Son, 192 Pa.Super. 446, 161 A.2d 644 (1960). The trial court did not abuse its discretion in denying the petition.

Order affirmed.

      . We note as well that at oral argument, counsel for Appellee declined to suggest that any work had, in fact, been performed under the contract.