author:
JOHNSON, Judge:
      CAVANAUGH, Judge, POPOVICH, Judge, CIRILLO, President Judge,

text:
    562 A.2d 875
    Joseph R. SCHROCK v. ALBERT EINSTEIN MEDICAL CENTER, DAROFF DIVISION and Joseph L. Chapman, M.D. Appeal of ALBERT EINSTEIN MEDICAL CENTER, DAROFF DIVISION, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed Aug. 2, 1989.

      . Robert J. Casey, Jr., Philadelphia, for Albert Einstein Medical Center, appellant.
    Ronald L. Wolf, Philadelphia, for Schrock, appellee.
    Paul R. Anapol, Philadelphia, amicus curiae.
    James R. Farley, Pittsburgh, amicus curiae.

      Carol N. Shepherd, Philadelphia, amicus curiae.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.

       McEwen, J., did not participate in the consideration of this case.

   JOHNSON, Judge:

Albert Einstein Medical Center, Daroff Division, appeals from the judgment of the Court of Common Pleas, Philadelphia County, awarding delay damages of $11,562.00 to Joseph R. Schrock. We originally granted en banc review to consider the question of whether the imposition of delay damages complied with the supreme court’s decision of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) which suspended the application of the mandatory provisions of former Pa.R.C.P. 238 and introduced the principle of fault into the delay damage determination. However, prior to the resolution of this matter the supreme court revised former Pa.R.C.P. 238 in light of Craig, supra. See Pa.R.C.P. 238, Explanatory Comment, 519 Pa. LXXII, LXXV (1988). This court has determined that revised Pa.R.C.P. 238, effective as of November 7, 1988, is applicable to issues properly preserved and presented in cases pending on appeal on the effective date of the revised rule. King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989); Snelsire v. Moxon, 384 Pa. 85, 557 A.2d 785 (1989). Accordingly, revised Rule 238 is determinative of the issues before us. We affirm.

The facts giving rise to this appeal are as follows. On July 13, 1981, Schrock was admitted to the Medical Center and treated by Dr. Joseph Chapman for a gun shot wound in the leg. Two weeks later, on July 27, 1981, an x-ray report disclosed that the gun shot fractured Schrock’s left femur. Schrock filed a complaint in trespass on July 15, 1982, alleging that, as a direct result of the “carelessness, negligence and gross negligence” of the Medical Center and Dr. Joseph L. Chapman in failing to recognize or identify the full extent of the injury for which he sought treatment on July 13, 1981, he incurred severe and disabling injuries. Schrock sought compensatory damages in excess of $20,-000. 00 together with interest, cost of suit and attorneys’ fees. After trial by jury, a verdict was returned which exonerated Dr. Chapman and found against the Medical Center and in favor of Schrock in the amount of $25,000.00. Pursuant to former Rule 238, delay damages of $11,562.00 were molded into the verdict for a total award of $36,562.00.

On appeal, the Medical Center challenges the constitutionality of awarding delay damages in this case because such an award, they allege, “imposes additional liability on a defendant in every case in which plaintiff’s demand exceeds the verdict” and because Craig, supra, as implemented, “creates an impermissible classification between plaintiff and defendant by imposing additional liability on a defendant which is unreasonable and arbitrary and not substantially related to any legitimate objective.” Medical Center’s Brief at page 7, points C & D. Neither of these arguments were presented below nor were they addressed by the trial, court. Accordingly, they are waived. Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed. 2d 149 (1985).

Next, the Medical Center contends that the trial court abused its discretion by finding that Schrock was not responsible for delay of trial. Essentially, the Medical Center argues that because Schrock’s settlement demands were unreasonable, serious attempts to settle, this case were thwarted and consequently resulted in the imposition of delay damages. Both parties, in their briefs, acknowledge that the lowest settlement demand made by Schrock was $50,000.00, twice the amount of the jury verdict.

A defendant’s responsibility for the payment of delay damages is not contingent upon the parties reaching an amicable settlement agreement. A defendant is not subject to delay damages where the verdict, decision or award does not exceed his or her written offer by more than 125 percent. Rule 238(b)(1). The fact that a plaintiff refuses to make a demand reasonably close to the amount of the verdict and/or refuses to accept a viable offer by the defendant is irrelevant to whether an adequate offer was actually made.

Moreover, the plain language of Rule 238 makes clear that plaintiffs conduct will affect the delay damage award only where his or her conduct “caused the delay of trial.” Pa.R.C.P. 238(b)(2) [Emphasis added]. The Explanatory Comment to rule 238 further states:

[w]ith respect to [plaintiffs] delay of the trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial.

Rule 238, Explanatory Comment 519 Pa. at LXXVI [Emphasis added]. While it is evident that the parties would have no reason to proceed to trial if they had settled the case, we do not perceive the failure of Schrock to make a more conservative settlement demand to be a procedural delay which actually prolonged the trial of this matter.

Finally, we address the Medical Center’s claim that the trial court erred by assessing delay damages against them where the trial court found that the Medical Center was not responsible for delay of the trial. Rule 238 makes only two provisions for the reduction of a delay damage award. Delay damages may be avoided in their entirety where the verdict does not exceed the defendant’s offer by more than 125 percent, Rule 238(b)(1), or the period of delay may be reduced by that time in which the plaintiff has contributed to the delay of trial, Rule 238(b)(2). We have also recognized in Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986), which has not been superceded by the revised rule, that delay damages will not be awarded where the defendant has made an offer which exhausts his resources.

In the absence of these three circumstances, delay damages are awardable from the time the complaint is filed or one year after the accrual of the cause of action to the date of the verdict, award or decision. Rule 238(a)(2)(i). “The drafters of the revised rule ‘have not allowed for the exclusion of periods of delay not caused by either party.’ ” King v. SEPTA, 383 Pa.Super. at 424, 557 A.2d at 13 quoting Miller v. Wise Business Forms, 381 Pa.Super. 236, 553 A.2d 443 (1989). Thus, delay caused by an overcrowding of the court system will not be subtracted from the period of delay chargeable against a defendant. Nor should it be, since the defendant has the ability to earn prejudgment interest upon the amount of the verdict, decision or award during the entire period that the plaintiff’s claim is being litigated.

The highest settlement offer made by the Medical Center was $10,000.00, which is inadequate to relieve them of responsibility for delay damages under Rule 238(b)(1). Also, Schrock has not caused such delay of the trial as would require a reduction of the period of delay under Rule 238(b)(2). Therefore, in the absence of any fault by the parties, the trial court’s determination awarding delay damages is proper. Since the Medical Center is not entitled to relief and Schrock has not challenged the trial court’s award on appeal, it is unnecessary to remand this matter to the trial court for a recalculation of delay damages. King v. SEPTA, supra; Snelsire v. Moxon, supra.

Judgment affirmed.

BROSKY, ROWLEY and MONTEMURO, JJ., join JOHNSON, J.

CAVANAUGH, J., files a dissenting opinion, which is joined by OLSZEWSKI, J.

POPOVICH, J., files a dissenting opinion.

CIRILLO, President Judge, files a dissenting statement.

CAVANAUGH, Judge,

dissenting.

I dissent and would remand for a calculation of delay damages under New Rule 238 for the reasons set forth in my Dissenting Opinion in King v. Southeastern Pennsylvania Transportation Authority, 383 Pa.Super. 420, 557 A.2d 11 (1989.)

OLSZEWSKI, J., joins CAVANAUGH, J.

POPOVICH, Judge,

dissenting.

This is an appeal from the judgment of the Court of Common Pleas of Philadelphia County awarding delay damages of $11,562.00 in favor of the appellee/Joseph R. Schrock and against the appellant/Albert Einstein Medical Center, Daroff Division.

I cannot join in the Majority’s rationale for affirming the issuance of delay damages in the absence of “fault” attributed to the appellant.

A review of the record indicates that a complaint in trespass was filed by the appellee on July 15, 1982, alleging that, as a direct result of the “carelessness, negligence and gross negligence” of the appellant (including Joseph L. Chapman, M.D.,) in failing to recognize or identify the full extent of his injury for which he sought treatment — bullet wound to the left leg resulting in a fracture of the left femur sustained while attempting to stop a robbery — he incurred severe and disabling injuries for which he sought compensatory damages in excess of $20,000.00 together with interest, costs of suit and attorneys’ fees.

On August 5, 1982, the appellee filed objections to a portion of the appellant’s 19 pages of interrogatories, many of which were inapplicable to the case as evidenced by the “form” in which they appear of record. On August 25, 1982, an answer was submitted by the appellant denying the allegations in the complaint and seeking, in new matter, indemnification and/or contribution from Joseph L. Chapman, M.D., as the party purportedly primarily liable for injuries or damages suffered by the appellee.

On November 1, 1982, Doctor Chapman filed an answer to the complaint. On November 10, 1982, the appellant’s answers to the appellee’s interrogatories, save for #24, were filed. This prompted the appellee to file, on November 12, 1982, a motion seeking an order of court directing the appellant to answer interrogatory # 24. However, the requested order was rendered moot when, on December 1, 1982, a supplemental answer to the appellee’s interrogatory # 24 was presented by the appellant.

On March 28, 1983, the appellee filed a motion for sanctions with the court seeking to depose, for a second time, the radiologist who allegedly failed to detect, upon his reading of the x-rays taken of the appellee upon admission to the hospital, the presence of the broken left leg and permitting the appellee to walk upon it.

During the initial deposition, it was averred that counsel for the appellant prohibited the radiologist from giving responses to various questions claimed by counsel to warrant the proffering of an expert opinion, a matter on which the deponent purportedly was not qualified to speak.

On April 11, 1983, answers to the appellee’s two supplemental interrogatories were submitted by the appellant. Four days later, the appellant filed an answer to the appellee’s motion for sanctions contending that the questions posed to the radiologist were beyond the area of his expertise and were, therefore, not discoverable. An order dated September 2,1983, denied the appellee’s motion on the basis that the questions sought to be asked were answered at the initial deposition.

The record discloses that no further action took place in the case until March 13, 1986, the date the appellee’s supplemental interrogatories were answered by the appellant and Doctor Chapman. Thereafter, on March 2, 1987, a verdict in favor of Doctor Chapman and in favor of the appellee and against the appellant in the amount of $25,-000.00 was entered by a jury of eight after a four-day trial.

One learns from the trial court's opinion, which is based on evidence given at a hearing on April 1, 1987, as to what transpired before and after the verdict in regard to a settlement or the assessment of “fault” under Pa.R.Civ.P. 238, that an offer of $10,000.00 was made and rejected. Following the rendition of the verdict, delay damages pursuant to Rule 238 were added to the verdict for a total award of $36,562.00. With the reduction of the verdict to judgment, a timely appeal was filed and the case was granted en banc consideration to review the question of whether the imposition of delay damages complied with the Supreme Court’s recent decision of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).

Before discussing the merits of the case, one needs to address the impact, if any, of the Pennsylvania Supreme Court’s promulgation of a new rule of civil procedure regarding delay damages. It became effective on November 7, 1988, and rescinded (the now former) Rule 238 (see note 2, supra) and substituted a new Rule 238 in its stead. One gains some insight as to the scope of new Rule 238 from its “Explanatory Comment”, which reads:

... [subdivision (f) of new Rule 238] is to indicate that the rule applies to pending as well as future actions but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig case. Once damages for delay have been determined under Craig, those proceedings are final and are not to be reopened under this rule. (Emphasis added)

From the preceding, one has direction from the Pennsylvania Supreme Court informing us that the provisions of new Rule 238 are not to be applied pro forma to every “pending” case involving a request for delay damages. Rather, where delay damages have been “determined” (be it to grant or deny them) pursuant to the provisions and procedures outlined in Craig, the matter is to be considered closed and not subject to reassessment under new Rule 238.

Instantly, it cannot be disputed that the trial court conducted a hearing to take testimony and hear argument on the plaintiffs request for delay damages, a proceeding held in accordance with the dictates (“provisions and procedures”) of Craig.

Albeit the present case was “pending” when new Rule 238 came into effect, this is only one facet of the equation in deciding whether the delay damages question should be “reopened” under this Rule. One must not lose sight of the admonition of the Supreme Court, speaking through the Civil Procedural Rules Committee via the Comment to the Rule, that delay damages “proceedings are final and are not to be reopened” under the guise of new Rule 238, as a matter of course, where the question has been “determined” at a “proceeding” adhering to Craig.

At bar, the “proceeding” was the hearing held below and participated in by both parties within the framework of Craig. The “determination” portion of the equation comes into play with the trial court’s “decision” awarding delay damages. Given the completion of the hearing and the entry of the trial court’s ruling, under the Comment to new Rule 238, those “proceedings are to be considered final and not subject to re-examination.”

If the Pennsylvania Supreme Court intended all delay damages cases to comply with the procedure enunciated in new Rule 238, it could have done so quite easily by directing that all pending actions involving delay damages (be they at the trial or appellate level) be controlled by new Rule 238. It chose not to do so, and the Comment portion of new Rule 238 is direct proof of that intention. To state otherwise would be pure speculation.

I perceive our function on appeal to be one of reviewing the trial court’s “determination” with Craig in mind, and not merely look to new Rule 238 without inquiring into the particular facts with Craig’s “fault-determination” as a criterion. I propose to do so now.

In Craig, the Court suspended the “mandatory” provisions of (former) Rule 238 which had, in the past, assessed delay damages against defendants without regard to fault. The Court put into place a procedure whereby a claim for delay damages would have to be presented by “petition” within five (5) days of a verdict. Thereafter, within the same time frame, the respondent would be required to submit an “answer”. If need be, the judge who presided over the trial could, prior to reaching a decision, hold a hearing to resolve any factual disputes. This occurred here.

In making its determination as to the plaintiff’s entitlement to delay damages, the trial court was directed by the Supreme Court to look to a list of criteria, albeit not exhaustive, to aid in the fact-finding process; to-wit: (1) the length of time between the starting date and the verdict; (2) the parties’ respective responsibilities in requesting continuances; (3) the parties’ compliance with rules of discovery; (4) the respective responsibilities for delay necessitated by the joinder of additional parties; and (5) other pertinent factors. 512 Pa. at 66, 515 A.2d at 1353.

Furthermore, and more importantly, Craig makes it quite clear that the imposition of delay damages without “fault” first having been established is inconsistent with Due Process principles, and punishment of a defendant merely because of his status as such smacks of a substantive enlargement of duties owed.

Instantly, the court below awarded the appellee/plaintiff delay damages despite its finding that the appellant/defendant was not at fault in causing the delay of some six (6) years from complaint to verdict — a delay attributable solely to congestion in the court system. Nonetheless, one cannot affirm such a ruling without running afoul of Craig. To elaborate, under Craig, only the “mandatory” provisions of Rule 238 were suspended so that a plaintiff could no longer “automatically” be awarded delay damages if his/her verdict exceeded by 125% the last offer of the defendant. No more needed to be shown ^re-Craig to entitle one to prejudgment interest under (former) Rule 238’s formula.

Justice Larsen’s dissent in Craig, joined by Papadakos, J., discounted the use of a petition, answer and hearing as merely protracting the ultimate receipt of money by the plaintiff without any countervailing benefit to the parties or the dispute-resolution system as a whole. He urged that the presentment of a “reasonable settlement” by the defendant would insulate him/her from having to pay delay damages, and, thus, “fault” need not be factored into the assessment of damages. The Majority in Craig rejected this position in favor of determining “fault” as a prerequisite to the imposition of damages under a prescribed set of facts.

At bar, after the submission of a timely petition, answer thereto and a hearing, the trial court concluded that neither party was responsible for unduly protracting the case (since eight years is the norm between the complaint and verdict in Philadelphia County), nor was the demand of the plaintiff/appellee or the offer of the defendant/appellant unreasonable. Nevertheless, the trial court wrote that:

It is the opinion of this court that the mere fact that a defendant is not at fault in causing the delay in a case does not automatically relieve the defendant from being assessed delay damages under Rule 238. Equally important to the analysis which must be made by the trial court is the responsibility of the plaintiff in causing delay. In a situation in which the plaintiff is partially or totally at fault, the assessment of delay damages may very well not be warranted. However, when both parties are blameless it would be unreasonable and unjust to deny delay damages. Fundamental fairness would require in the opinion of this Court, that the plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants who, of course, have had the use of that money.
******
When a plaintiff has not made an unreasonable demand to settle a case and is not otherwise at. fault for any delay, Rule 238 should be applicable. The assessment of delay damages in such situations is not for the purpose of punishing the defendant or to compel the defendant to settle unmeritorious cases. Rather, the rule is a legitimate attempt to make the plaintiff whole.

(Trial Court Opinion at 6 & 7)

If one were to embrace the position of the trial court (as the Majority does here) he/she would be, in essence, condoning the awarding of delay damages in the absence of “fault” having been first established on the part of the defendant/appellant. This, I find, is at odds with explicit language in Craig denouncing such a pro forma practice, even if its goal were to make the plaintiff/appellee whole, since “[tjhere is no point in contending that a procedural rule may exist that punishes without fault, and is yet consistent with Due Process.” 512 Pa. at 65, 515 A.2d at 1353. Thus, to the extent that new Rule 238 appears to be a reversion to pre-Craig days (of awarding delay damages without the presence of “fault”), I would read the Rule as supplementing Craig and not supplanting it to avoid any constitutional challenges thereto.

The assessment of fault having found to be totally lacking in the context of the case at bar, I would hold that the awarding of delay damages was improper under the dictates of Craig See Shellhamer v. Grey, 359 Pa.Super. 499, 519 A.2d 462 (1986) (allocatur denied 6/17/87), wherein a panel of this Court reversed a judgment (with delay damages) of $269,676.44 and remanded to allow the trial court to review the defendant’s contention of inability to pay damages pursuant to Rule 238 under the then two month old Craig decision. We also labelled the “fault” element “a condition precedent to the imposition of Rule 238 delay damages.” 359 Pa.Super. at 505, 519 A.2d at 465. Consistent therewith, we went on to write that:

On remand, if the defendant is found not to be at “fault”, under the factors made mention of in Craig, there would appear to be no reason to inquire further as to her ability to pay____

359 Pa.Super. at 506, 519 A.2d at 466. What is to be garnered from our mandate in Shellhamer is that there will be instances where delay damages will not be permitted to be imposed, the sine qua non being the initial compliance with the “fault” criteria enunciated in Craig and supplemented by this writer’s reading of Rule 238 today.

I have scrutinized the record and law on the issue posed for our review and conclude, contrary to the Majority and the court below, that where the parties to a lawsuit are “fault free” in the prolongation of the case to completion, Craig prohibits the affixing of delay damages to a jury verdict in favor of a plaintiff as a matter of course where no “fault”, as so defined in Craig, is evident. Thus for the reason herein stated, I would not affirm the entry of Rule 238 delay damages.

I would reverse the judgment of the court below as to delay damages and remand for the entry of judgment as to $25,000.00 only in favor of the plaintiff/appellee and against the defendant/appellant.

CIRILLO, President Judge,

dissenting.

I respectfully dissent from the majority’s determination that appellant Albert Einstein Medical Center [Einstein] has waived constitutional issues concerning Pennsylvania Rule of Civil Procedure 238 and its application by failing to raise those issues before the trial court. Although our rules of appellate procedure require that claims be first raised in the trial court, see Pa.R.A.P. 302, there is not and has never been any mechanism in the rules of either civil or appellate procedure which provides an avenue by which to raise, prior to appeal, claims of error concerning delay damages. I note that new rule 238 indicates that an order of the trial court concerning delay damages is not subject to a motion for post-trial relief. See Pa.R.C.P. 238(c), comment. The new rule does provide that delay damages are to be determined through petition and answer, procedures similar to those suggested by the supreme court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1987). However, I would not require that an appellant’s answer raise a claim of constitutional violation based on the possibility that the court would dispose of that petition erroneously, for I believe to do so would be akin to requiring the appellant to cry “ouch” before he or she is harmed. In any case, I note that Einstein’s answer to the petition for delay damages denied liability under Craig, even though it admitted that the verdict was 125% greater than its settlement offer. Because Craig found constitutional defects in imposing delay damages without a determination of fault, I think that this statement was sufficient to satisfy Einstein’s obligation under Pa.R.A.P. 302 to bring the issue to the attention of the trial court. Moreover, because these specific claims of unconstitutionality have application to the newly promulgated rule 238, as well as to its predecessor, they have not been rendered moot by the adoption of the new rule.

Einstein complains that although a defendant is penalized for failing to make a settlement offer within 125% of the eventual jury verdict, there is no penalty assessed against a plaintiff who makes a settlement demand that is similarly excessive in comparison to that verdict. According to Einstein, this creates impermissible classifications of defendants and plaintiffs, and bears no rational relationship to the stated goal of case settlement. Although these arguments are couched in equal protection terms, they are more properly addressed as questions of fundamental fairness. Because I believe that the new rule, which was intended to rectify this defect, remains fundamentally unfair in the context of settlement negotiations, I would find that portion of the rule unconstitutional.

In Craig, the supreme court addressed the question of the constitutionality of former rule 238:

There is no point in contending that a procedural rule may exist that punishes without fault, and is yet consistent with Due Process____ We today suspend the rule because it runs too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an uncontestable presumption that all fault lies with the defendant. There are too many reasons why such is not always the case; and what is not always so may not be irrebuttable when a penalty follows.

Id., 512 Pa. at 65, 515 A.2d at 1353. In order to rectify this problem, the court required a hearing to ascertain fault. Id. New rule 238 has explained that courts are to ascertain the period of delay caused by plaintiff, and so charge the defendant with all other trial delay, even that delay inherent in the court system and not attributable to the action or inaction of either party. See Pa.R.C.P. 238(b)(2).

The procedures in Craig, and the new rule itself, clearly contemplate an award of prejudgment interest. New rule 238, to the extent that it awards prejudgment interest for delay in commencing and concluding trial of the case, may be said to be fair in light of the supposition that at the time of the verdict, the jury has determined that the defendant is in the wrong, and has been since the accrual of the cause of action. The point of the litigation is to make the plaintiff whole, therefore, the defendant should recompense that plaintiff for the time he or she has been without the monies owed. Following this reasoning, it is clear that all court delay during trial would be assessed against the defendant because the delay could have been avoided by voluntarily making plaintiff whole rather than forcing him or her to seek relief in court.

The delay contemplated by the supreme court in Craig, however, and fairly remedied by an award of prejudgment interest, is not the type of delay that we are faced with in this case. In Craig, the court stated that, in addition to the period of time between the starting date and the verdict,

[t]he fact finder shall consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Craig, 512 Pa. at 66, 515 A.2d at 1353. In other words, Craig was concerned with the narrow question of the parties’ fault in causing delays in the trial process itself. It did not address, and the new rule therefore made no attempt to remedy, the inequity inherent in the assessment of delay damages against defendants based on the parties’ failure to reach settlement without first taking into consideration the plaintiff’s actions during settlement. It is that issue which is before us here.

New rule 238 excludes damages for delay for the period of time:

(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff,
* * * * * *
and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict, or decision, exclusive of damages for delay, more than 125% percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or
(2) during which the plaintiff caused delay of the trial.

Pa.R.C.P. 238(b)(1)(i) & (b)(2). Although one might assume that the current procedure would subtract from the total delay all delay caused by the plaintiff, including delay during settlement, the rule does not require this result. Rather, the rule specifically states that all trial delay attributable to plaintiff will be excluded. See Pa.R.A.P. 238(b)(2); see also Craig, 512 Pa. at 66, 515 A.2d at 1353. No mention is made of the plaintiff’s role in the settlement process. Rather, the burden of settlement rests upon the shoulders of the defendant. See Pa.R.A.P. 238(b)(1)(i). I believe that this is fundamentally unfair.

A settlement is an agreement between two parties and therefore presumably requires an effort on the part of both. Under the present rule, should a plaintiff choose to demand an unreasonable amount at settlement negotiations, an amount which the defendant cannot or justifiably will not pay, settlement is as surely thwarted as if the defendant had failed to make a reasonable offer. In the latter case, the imposition of delay damages against the defendant for all trial delay less the amount of delay caused by the plaintiff is at least logical — had the defendant moved to make a reasonable offer plaintiff would have been made whole that much sooner, and without having to spend time at trial. However, where the plaintiff has made only an unreasonable settlement demand, has failed to make any move toward settlement, or in some way acts to delay or prevent settlement, it is unfair to place the blame for going to trial, in the form of assessment of damages for all court-caused delay, solely on the defendant. If the plaintiff makes a demand which, when considered in light of the jury verdict, appears unreasonable, the plaintiff is at least as responsible for going to trial as the defendant. In such a situation, the plaintiff is not prevented from being made whole at settlement through any profit motive of the defendant; the profit motive appears to be the plaintiffs. A defendant should not then be penalized by being required to pay those monies which, after the jury verdict, are determined to have been the property of the plaintiff all along. The plaintiff could have had the use of those monies through settlement, but frustrated the settlement process by his or her actions. Further, an unreasonable settlement demand on the part of the plaintiff could be viewed by a defendant as a rejection of any more reasonable offer, and therefore could discourage that defendant from making any other offer which would shield him or her from rule 238 damages.

In the case before us, Einstein complains that, although the jury verdict exceeded its settlement offer, the plaintiffs settlement demand exceeded the jury’s award and was unreasonable. The jury awarded Schrock $25,000.00; his original demand was $125,000.00, five times the amount eventually awarded. It appears that both plaintiff and defendant misvalued the case; only the defendant, however, is being penalized for the failure to settle. This construction of the rule puts the onus of the settlement negotiations squarely on one party. I do not think such an arrangement comports with fundamental fairness. I am in agreement with Justice Roberts’ well-considered dissent in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981):

The unfairness of Rule 238 is further compounded by its imposition of duties and sanctions only upon defendants, and not upon plaintiffs. If the object of the Rule is to discourage delay, the Rule should not only require defendants to make reasonable settlement offers, but also should require plaintiffs to make reasonable demands. Failure of either party to make a reasonable effort to settle should result in the imposition of similar sanctions.

Id., 496 Pa. at 78, 436 A.2d at 160 (Roberts, J., dissenting).

Further, I am uncertain that such a process even facilitates settlement. I fail to see any relationship between punishing a defendant for failure to make an adequate settlement offer based on an arbitrary percentage, and encouraging settlement of cases. The supreme court has already conceded that not every defendant is motivated by profit. See Craig, 512 Pa. at 64-65, 515 A.2d at 1352. If this is true, then the rule is ineffectual. The “settlement instincts” of defendants will not be altered because they are unable to profit from money held until judgment unless their motive for retaining those funds is to profit. Where there are other reasons for refusing to settle, the elimination of the profit motive will not result in a greater willingness to settle, and the purpose of the rule will not be effectuated.

It seems to me that the court in Craig recognized that the failure to make a finding of the respective fault of the parties smacked of unconstitutionality, and held that rule 238 was unworkable for precisely this reason. It “[had] become an uncontestable presumption that all fault lies with a defendant. There are too many reasons why such is not always the case; and what is not always so may not be irrebutable when a penalty follows.” Id., 512 Pa. at 65, 515 A.2d at 1353. There are many reasons for a failure to settle a case, and unless we can determine that the defendant’s role in the settlement scenario was played out with a profit motivation, then we should not, and constitutionally cannot, punish that defendant. If we attempt to do so, we are mandating settlement in situations where settlement should perhaps not take place, we are punishing defendants for attempting to litigate their cases, and, in some instances, we are punishing them for being unable to make an acceptable settlement offer. I am of the opinion that to assess all trial delay against a defendant solely because of the amount of his or her settlement offer without any determination of the respective fault of the parties during settlement negotiations is ineffectual and fundamentally unfair. I therefore dissent.

      . Although Dr. Chapman was a named defendant at trial, he is not a party to this appeal.

      . Joseph L. Chapman, M.D., was named as a party to the suit but his exoneration from liability by the jury dispensed with the need for him to file an appeal from the judgment entered below. His appearance in the recitation of the facts is informational only.

      . Pennsylvania Rule of Civil Procedure 238 provided:
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L.390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision of a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
      (c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
      (d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
      (f) If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a date six (6) months after the effective date of this rule, whichever date is later.
      (g) This rule shall not apply to
      (1) eminent domain proceedings;
      (2) pending actions in which damages for delay are allowable in the absence of this rule.

      . I note that in the appellant’s "Summary Of The Argument” in its brief at page 7, at points C & D, it assails the constitutionality of Pa.RXiv.P. 238 on grounds that it imposes additional liability on a defendant in any case where the plaintiffs demand exceeds the verdict and the procedure mandated by our Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) creates an impermissible classification between plaintiff and defendant by imposing additional liability on a defendant which is unreasonable and arbitrary and not substantially related to any legitimate objective. Because these grounds for assailing the delay damages were neither presented to nor addressed by the court below, I would find them waived. Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 149 (1985).

      . See former Pa.R.Civ.P. 238(a)(2).

      . At this point, I wish to note that the first written offer by the defendant, in the amount of $5,000.00, was made on April 21, 1986, almost four years after the complaint was filed. The second offer of $10,000.00 was made on October 10, 1986, and that was also rejected.
      As for the plaintiff, he demanded $125,000.00 at first, and then lowered the amount to $50,000.00. This stayed in effect until the 20th of January, 1987. With the defendant’s failure to increase its offer, the plaintiffs demand rose, again, to $125,000.00. I also make mention for the record that in response to the appellant’s interrogatories regarding an itemization of his damages, the appellee did list the following:
      (a) Lost earnings: $3,410.40 plus the value of fringe benefits;
      (b) Future loss of earning capacity and other future loss related to his injury: undetermined;
      (c) Medical and hospital expenses: $3,918.75; and
      (d) Income for 1981: $6,409.00

        1980: $3,563.00
      1979: $3,454.27.
      (See Appellee’s Answer to Appellant’s Interrogatories # 22 & # 26) It is interesting to observe that the appellant’s counsel stated, at the hearing of April 1, 1987, to assess the imposition of delay damages, that he considered the appellee’s case to be no more than a "nuisance” suit.

      . As stated previously, this would dispense with a remand to comply with new Rule 238.

      . Under the new rule, a plaintiff may file a motion requesting delay damages within ten days of the verdict or the notice of the decision, and a defendant may file an answer within ten days of the motion. Pa.RX.P. 238(c)(1). In Craig, the supreme court set a five day limit on the petition, and the answer. Craig, 512 Pa. at 65, 515 A.2d at 1353.

      . I make no comment on the constitutionality of such a rule under the separation of powers clause of our state constitution, as that issue was not raised before us.

      . This is said for the sake of argument. I question whether a rule which assumes that all defendants who refuse to compensate plaintiffs without a jury verdict profit from the monies they have ostensibly kept for themselves can be said to be fundamentally fair. I note with concern the case of the self-insurer, who may not have the funds on hand to invest, and who most probably will be unable to obtain a return comparable to that suggested by the rule — the prime rate listed in the first edition of the Wall Street Journal for each calender year for which the damages are to be awarded, plus one percent, not compounded.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    562 A.2d 885
    COMMONWEALTH of Pennsylvania v. Carol DILLON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1989.
    Filed Aug. 2, 1989.

      Manuel Grife, Philadelphia, for appellant.
    Maxine Stotland, Asst. Dist. Atty., Philadelphia for Com.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   WIEAND, Judge:

Carol Dillon was found guilty by a jury of murder of the third degree in the stabbing death of her husband on the evening of June 7, 1986. Post-trial motions were dismissed, and she was sentenced to serve a term of imprisonment for not less than three (3) years nor more than six (6) years. On direct appeal, she challenges the sufficiency of the evidence to sustain the jury’s verdict and alleges numerous trial errors. We will consider these issues seriatim.

Appellant’s post-trial motions contained only a “boiler-plate” challenge to the sufficiency of the evidence. This was inadequate to preserve for appellate review any specific deficiency in the Commonwealth’s proof. See: Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983).

Moreover and in any event, a review of the record discloses evidentiary support for the jury’s finding. On June 7, 1986, at or about 7:05 p.m., police found appellant’s husband lying unconscious in his home at 5236 Penway Street, Philadelphia. He had sustained a single stab wound of the left chest and was taken immediately to Parkview Hospital, where he was pronounced dead at 8:44 p.m. The decedent’s wife, Carol Dillon, initially denied knowledge of the circumstances surrounding the stabbing death of her husband. While she was at the hospital, however, police found a brown-handled butcher knife with blood on it, as well as a blood-stained towel and washcloth in the residence. Police suspicion thereafter focused on the decedent’s wife, and she was subsequently transported from the hospital to police headquarters for questioning. After continuing to deny any knowledge of the incident resulting in the stabbing of her husband, police confronted Mrs. Dillon with a neighbor’s statement that Mrs. Dillon and her husband had been observed quarreling in their car shortly before he had been stabbed. Mrs. Dillon thereafter gave a statement in which she admitted that she had stabbed her husband. This evidence was sufficient to sustain a finding that appellant was guilty of murder of the third degree.

Appellant’s defense was that she had acted in self-defense when attacked by an allegedly intoxicated husband. The testimony, however, was contradictory. The Deputy Medical Examiner for the City of Philadelphia testified that there were no traces of alcohol in the decedent’s blood. There was testimony that the decedent and appellant had been arguing, immediately prior to the killing and also on the preceding night. Whether the argument was about appellant’s seeing her former husband or about the long hours which the decedent spent at his job is not certain. Appellant testified at trial that the argument had become violent on the preceding night and that the decedent had pushed her, causing her to fall and strike her head. She also testified generally that the decedent had beaten her during the course of the marriage. This general accusation, however, was neither corroborated by other evidence nor particularized by specific instances; and other witnesses testified that the decedent had never struck his wife or evidenced a tendency toward violence. His former wife testified that the decedent had never struck her and that even after he had been drinking he was not violent but became either sleepy or “extra happy.” It is readily apparent, therefore, that the credibility of appellant’s defense was for the jury to weigh and consider in light of the Commonwealth’s evidence that appellant had stabbed her husband in the chest with a butcher knife.

Appellant argues that the statement made at the hospital, to the effect that she did not know how her husband had been injured, and the confession made at the police station should have been suppressed because they had not been preceded by Miranda warnings. The suppression court found, however, that at the hospital appellant had been neither a suspect nor in custody. She had called police to the home, had denied knowledge of how her husband had been stabbed, explained that she had been smeared with blood by handling him, and asked police to take her to the hospital to which her husband had been removed. There, in response to questions, she continued to assert ignorance regarding the circumstances of her husband’s wound.

It was when appellant was at the hospital that police located the blood covered knife and learned that appellant and her husband had been arguing in their car before entering their home prior to the stabbing. When the decedent expired at 8:44 p.m., police at the hospital were asked to bring appellant to the police station for questioning. There she was advised of her rights under Miranda and later admitted that she was the person who had stabbed her husband.

A reviewing court must determine whether the evidence supports the factual findings of the suppression court. In making this determination, we consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987); Commonwealth v. Dinicola, 348 Pa.Super. 405, 409, 502 A.2d 606, 608 (1985). The record of the suppression hearing in this case discloses competent evidence which supports the findings of the suppression court. Because appellant was not in custody at the hospital, Miranda warnings were unnecessary, and the absence thereof did not require suppression of appellant’s voluntary statements. See: Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987). See also: Commonwealth v. Zimmerman, 351 Pa.Super. 5, 504 A.2d 1329 (1986); Commonwealth v. Wu, 343 Pa.Super. 108, 494 A.2d 7 (1985); Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984).

At trial, appellant offered testimony by her son, Robert Weinert, Jr., that when he and his friends would visit the home of appellant and the decedent, the decedent would “drink and smoke marijuana and inhale it and he would get drunk and mean and vicious.” Appellant also offered as an exhibit a picture of the victim smoking marijuana. The trial court found this evidence irrelevant and sustained objections made by the Commonwealth thereto. Appellant contends that this was error. We disagree.

Evidence, to be admissible, must be relevant. Commonwealth v. Hill, 340 Pa.Super. 155, 162, 489 A.2d 889, 892 (1985); Commonwealth v. Potts, 314 Pa.Super. 256, 275, 460 A.2d 1127, 1137 (1983). “Relevant evidence ‘tends to increase or decrease the probability of a material fact’ at issue.” Commonwealth v. Hill, supra, quoting Commonwealth v. Potts, supra 314 Pa.Super. at 276, 460 A.2d at 1137. Concerning the issue of relevancy, it has been said that

“[t]he law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.” Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). Therefore, issues of relevancy are left in large measure to the sound discretion of the trial court, whose decisions will not be reversed in the absence of a clear abuse of discretion. See: Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987); Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984).

Commonwealth v. Sullivan, 372 Pa.Super. 88, 96, 538 A.2d 1363, 1368 (1988).

In the instant case, the trial court did not abuse its discretion when it excluded evidence that the decedent during his lifetime had drunk alcohol and smoked marijuana with his stepson’s friends. This would not have added to the jury’s ability to understand the facts surrounding the victim’s death and would have injected a collateral issue which could have served only to confuse the jury.

Appellant argues on appeal that she wanted to show by this evidence that the victim had become hostile and aggressive toward her when he drank and used drugs. This, however, was not a part of the offer made at trial. The offer made at trial focused on unspecified dates and concerned events which did not involve appellant. Thus, the events included in the offer of proof were not probative of the relationship between the decedent and his wife.

At trial, appellant offered to produce Dr. Richard Lonsdorff, a psychiatrist, to give “a professional opinion as to what [appellant’s] mental state was at the time the killing took place and what the mental state is of a woman who has been battered ..., her reaction to such battering, and her reaction after the killing as to what she may or may not tell other people as to what occurred.” The trial court disallowed the offer of proof, holding that the battered woman syndrome had not been recognized in this Commonwealth as a defense in homicide cases. See: Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987); Commonwealth v. Stonehouse, 358 Pa.Super. 270, 517 A.2d 540 (1986), rev’d, 521 Pa. 41, 555 A.2d 772 (1989).

Recently, a plurality of the Pennsylvania Supreme Court determined that trial counsel would be deemed ineffective in a homicide case if he or she failed to introduce expert testimony regarding the battered woman syndrome, holding that “[b]ecause the battered woman syndrome is not within the ordinary training, knowledge, intelligence and experience of jurors, we believe that expert testimony regarding battered women is admissible as the basis for proving justification in the use of deadly force where the defendant has been shown to be a victim of psychological and physical abuse.” Commonwealth v. Stonehouse, 521 Pa. 41, 61-64, 555 A.2d 772, 782-783 (1989). The majority of the Court in Stonehouse, however, concluded that the admissibility of evidence pertaining to the battered woman syndrome was not properly before the Court and declined to express an opinion whether Pennsylvania would recognize such a defense. See: Commonwealth v. Stonehouse, supra (Zappala, J. concurring); Id. (Nix, C.J. dissenting). Therefore, the battered woman syndrome has not been accepted precedentially in this Commonwealth as a valid defense in homicide cases.

Even if we were to speculate that the Supreme Court is about to adopt the “battered woman” defense in this Commonwealth, the opinion testimony offered by appellant in this case was properly rejected. In Stonehouse, the plurality opinion written by Justice Larsen emphasized that expert testimony pertaining to the battered woman syndrome was appropriate “where uncontradicted testimony reveals that the defendant was a victim of such abuse.” Id., 521 Pa. at 44, 555 A.2d at 774. The facts of the instant case are not so compelling. Whether appellant in the instant case was a battered woman was sharply disputed by the Commonwealth, and the evidence was contradictory. Appellant’s testimony that she had been beaten by a drunken husband prior to the stabbing and her general accusation that he had beaten her repeatedly during fourteen months of marriage was largely uncorroborated and was substantially contradicted by other evidence. The deputy medical examiner, as we have observed, found no alcohol present in the decedent’s body. Moreover, a Commonwealth witness, Bernadette Whitaker, who had been with the decedent at a party on the night before he was killed testified that although he had been drinking, he had not been intoxicated and, in fact, had left the party to return to work and complete an unfinished assignment. Whitaker also testified that she had known the decedent for many years and that he did not ever become violent when he consumed alcohol. The decedent’s former wife testified that the decedent had not struck her in sixteen years of marriage and that he did not become violent when drinking. Appellant’s son, who had lived in the same home with appellant and the decedent, said he had never seen the decedent strike appellant. Under these circumstances, we perceive no error in the trial court’s ruling.

To have allowed expert testimony to explain appellant’s statements following the killing, moreover, would have been improper. This was a matter within the jury’s comprehension and the scope of its responsibilities as judge of the facts. As such, it did not require expert testimony. Jurors are human and may be unduly impressed by expert opinion even though, upon reflection, they would realize that in the particular field under discussion they are as much at home as the expert. Collins v. Zediker, 421 Pa. 52, 55, 218 A.2d 776, 778 (1966). See also: Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). Therefore, the trial court did not err in excluding expert testimony to explain why appellant had avowed ignorance of the killing immediately following the event.

Appellant also contends that the trial court erred when it failed to instruct the jury (1) regarding the offense of involuntary manslaughter; and (2) that it could consider the cumulative effect of her husband’s abusive conduct in determining, for purposes of applying the defense of self-defense, whether her asserted fear of imminent death or serious bodily injury was reasonable. Although appellant submitted requested points for charge on these aspects of the case, she made no objection when the trial court failed to include the requested instructions in its charge to the jury.

Pa.R.Crim.P. 1119(b) establishes the following rule:

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

By virtue of this rule, the courts have held that “in order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R.Crim.P. 1119(b), even where jury instructions have been timely offered and refused.” Commonwealth v. Rineer, 310 Pa. Super. 241, 249, 456 A.2d 591, 595 (1983). See: Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981); Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977) (plurality opinion); Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984). These decisions make it clear that the trial court’s refusal to grant appellant’s requested points for charge has been waived.

Appellant also challenges the trial court’s instructions on justification for the use of deadly force. The gravamen of appellant’s argument is that the trial court did not employ the term “self-defense”; did not clearly delineate which party it was referring to when speaking about the use of deadly force; and used the term “reasonable” in an inordinately confusing manner while delivering the following instruction:

In this case, as you determine it and only as you determine it, the evidence may indicate that the defendant may have used deadly force, as I just defined that term for you. That is, once again, force that was readily capable of causing death or serious bodily injury under the circumstances in which it was used.
If you so determine it, you should remember special rules apply in determining the availability of the defense of justification when deadly force is involved. Because the Commonwealth has the burden of disproving the defense of justification, you may find the defendant guilty only if you are satisfied beyond a reasonable doubt that the defendant did not reasonably believe that the use of deadly force, if you so find it existed, was then and there necessary to protect herself against death or serious bodily injury.
In other words, if you are satisfied beyond a reasonable doubt that the defendant was not reasonable in her belief that the use of deadly force, if any you find to exist, was then and there necessary to protect herself from the danger of death or serious bodily injury, then you may find the defendant guilty.

In reviewing appellant’s challenge to the trial court’s charge on the defense of justification we are guided by the following principles:

[A]n appellate evaluation of a trial court’s charge to the jury must be based on an examination of the charge as a whole in order to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Tolassi, 489 Pa. 41, 57, 413 A.2d 1003, 1010 (1980). Error cannot be predicated on isolated excerpts from a charge, but must be predicated on the charge as a whole. Commonwealth v. Sweger, 351 Pa.Super. 188, 194, 505 A.2d 331, 334 (1986); Commonwealth v. Smith, 343 Pa.Super. 435, 443, 495 A.2d 543, 547 (1985). Jury instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations. Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985).

Commonwealth v. Johnson, 368 Pa.Super. 427, 429-430, 534 A.2d 511, 512 (1987). See also: Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); Commonwealth v. Magwood, 371 Pa.Super. 620, 538 A.2d 908 (1988); Commonwealth v. Wallace, 347 Pa.Super. 248, 500 A.2d 816 (1985). The instructions of the trial court in the instant case were free of error and sufficient to guide the jury’s deliberations adequately and accurately regarding appellant’s right to use a knife in self-defense. There is inherent therein no basis for a new trial.

Appellant argues, additionally, that the court’s instruction imposing upon her a duty to retreat was erroneous. Because she was in her own home, appellant contends, she had no duty to retreat unless she were the initial aggressor. This alleged error, however, has also been waived. Appellant did not object to the alleged error in the court’s jury instructions before the jury retired to deliberate and did not assert the alleged error in her motion for post-trial relief. Consequently, it was not considered by the trial court at trial or in its opinion denying post-trial relief. This Court will not consider an issue raised for the first time on appeal. Commonwealth v. Gordon, 364 Pa.Super. 521, 534, 528 A.2d 631, 638 (1987). See also: Commonwealth v. Hernandez, 339 Pa.Super. 32, 45 n. 7, 488 A.2d 293, 300 n. 7 (1985); Commonwealth v. Bradshaw, 324 Pa.Super. 249, 254-255, 471 A.2d 558, 560-561 (1984).

The judgment of sentence is affirmed.

      . Dillon was also sentenced to a concurrent term of imprisonment for not less than one (1) year nor more than two (2) years on a conviction for possessing an instrument of crime.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    562 A.2d 891
    Robert E. HANN and Fannie M. Hann, husband and wife, Harry Houck, Roger Houck and Harry Brant, deceased and Robert E. Hann, as executor v. David E. SAYLOR and Sandra P. Saylor, husband and wife and Harry E. Brant, deceased and Robert E. Hann, as executor. Appeal of David E. SAYLOR and Sandra P. Saylor, husband and wife.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1989.
    Filed Aug. 2, 1989.

      Robert B. Stewart III, Huningdon, for appellant.
    James M. Schall, McConnellsburg, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

In this equity action, the trial court held that defendants’ land was subject to an implied easement for right of way purposes over a strip of land twenty-five (25) feet in width and continuing for a distance of five hundred twenty (520) feet. On appeal, defendants contend that the trial court erred when it determined (1) that their land was subject to an implied easement and (2) that the portion of the right of way on their land was twenty-five (25) feet in width.

Harry Brant and his wife owned a tract of land containing approximately 166 acres in Licking Creek and Dublin Townships, Fulton County. By deed dated April 7, 1976, they conveyed to Frank Mellott and his wife, from the southeastern part of the land, a tract containing 5.979 acres. Attached to the deed and recorded therewith was an engineer’s drawing showing that the northern property line bisected an intended fifty (50) foot access road leading from a township road to other lands of the grantor. By deed dated June 9, 1976, Brant and his wife conveyed to David Saylor and Sandra Saylor, husband and wife, a tract of 14.40 acres lying to the north of the Mellott tract. The Saylor deed contained no language expressly referring to a right of way along any part of the southern property line. However, the deed description provided that the property being conveyed contained “in all 14.40 acres according to a survey by Robert W. Taylor, P.E., on May 26, 1976, as shown on the draft attached hereto.” An engineer’s drawing was attached to and recorded with the deed and depicted an intended fifty (50) feet wide right of way lying between land of the Saylors and Mellotts, half of which was on Saylors’ land. The right of way extended for a distance of five hundred twenty (520) feet from the township road to other lands of the grantor. After these two conveyances had been made, the grantor continued to make intermittent use of a visible lane, generally following the depicted right of way, to get to his remaining land from the township road. In fact, however, this lane was unpaved and consisted of tracks approximately twelve (12) feet in width.

In June, 1979, Brant, now a widower, conveyed a remainder interest in the balance of his land to Robert Hann and wife, Harry Houck, and Roger Houck. In 1984, the Saylors placed stakes on their land within the area which had previously been marked on their plan as right of way. An action followed by Brant and the remaindermen to enjoin the Saylors from interfering with use of the right of way. The trial court, after hearing the evidence, found that twenty-five (25) feet of Saylors’ land was subject to a right of way and enjoined the Saylors from interfering with plaintiffs’ use thereof.

“It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement in favor of the grantor, such an interest may be reserved by implication, and this is so notwithstanding that the easement is not essential for the beneficial use of the property.” Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 313-314, 356 A.2d 763, 767 (1976). See generally: 12A P.L.E. Easements §§ 31, 32. “[Wjhere an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.” Tosh v. Witts, 381 Pa. 255, 258, 113 A.2d 226, 228 (1955). This is so irrespective of whether or not the easement constitutes a necessary right of way. Id.; Burns Manufacturing Co., Inc. v. Boehm, supra, 467 Pa. at 314, 356 A.2d at 767. See also: Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 254-255, 129 A. 83, 84 (1925). An easement by implication may be acquired where the intent of the parties is clearly demonstrated “by the terms of the grant, the surroundings of the property and other res gestae of the transaction.” Tomlinson v. Jones, 384 Pa.Super. 176, 179, 557 A.2d 1103, 1104 (1989), quoting Thomas v. Deliere, 241 Pa.Super. 1, 4, 359 A.2d 398, 399 (1976). See also: Philadelphia Steel Abrasive Co. v. Louis J. Gedicke Sons, 343 Pa. 524, 527, 23 A.2d 490, 492 (1942).

In the instant case, it seems clear that when the Saylors took title to their tract it was subject to an open, visible, permanent and continuous right of way which had been used by their grantor to get from the township road to another part of his land. Therefore, the trial court properly determined that the Saylors’ land was subject to an implied easement.

The width of the easement remains to be determined. The right of way which was visible on the ground when the Saylors took title was twelve (12) feet in total width, of which only six (6) feet were on the Saylors’ land. The trial court, without stating any reason for so doing, held that the Saylors’ land was nevertheless subject to an easement to a width of twenty-five (25) feet. After conducting our own research, we conclude that the trial court was correct.

The rule for determining the extent of an easement varies depending upon how the easement arose. In the case of an express grant or reservation, the extent of the right depends upon the terms of the instrument conveying the interest, as interpreted by applying general principles of contract law. See: Sigal v. Manufacturers Light & Heat Co., 450 Pa. 228, 299 A.2d 646 (1973). See also: Bito Bucks in Potter, Inc. v. National Fuel Gas Supply Corp., 303 Pa.Super. 208, 449 A.2d 652 (1982). Where an easement is acquired by prescription, the extent of the right is determined by the extent of the prior user. See: Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974); Pittsburgh & Lake Erie R.R. v. Stowe Twp., 374 Pa. 54, 96 A.2d 892 (1953); Smith v. Fulkroad, 305 Pa.Super 459, 451 A.2d 738 (1982).

The rule is less clear when the easement is one which arises by implication. See: comment e, Restatement of Property § 483. See also: 28 C.J.S. Easements § 77(3). Some of the factors which may be considered in determining the scope of an implied easement include: the circumstances under which the conveyance was made; whether or not the conveyance was gratuitous, and the use made of the servient tenement before and after the conveyance. Restatement of Property § 483.

In the instant case, when the Saylors’ grantor conveyed to them a portion of his lands, the Saylors had knowledge that the tract being conveyed was subject to a right of way in favor of their grantor, for it was apparent on the ground. More importantly, attached to their deed was an engineer’s drawing containing a fifty feet wide right of way, half of which was on the tract being conveyed to them. This was clear evidence that their grantor had arranged his land so as to provide a fifty feet wide access road from the township road, half of which lay on the tract being conveyed, to lands lying on the other side of the tract conveyed.

We reject appellant’s argument that the width of the implied easement should be limited, as one arising by prescription, to prior use. Because the survey attached and expressly referred to in appellants’ deed specifically showed the right of way to be fifty feet wide, with half of it on the Saylors’ land, this case is more analogous to those involving deeds which refer to maps and plots. In those cases we have held that the road surfaces are as depicted in the referenced map or plot. See, e.g.: Potis v. Coon, 344 Pa.Super. 443, 496 A.2d 1188 (1985).

The implied easement in this case was half of a fifty feet wide right of way appurtenant to the grantor’s remaining land. It passed to his subsequent grantees when he conveyed the remainder interest in his land even though the deed did not expressly refer to the right of way. Therefore, the trial court was correct when it enjoined appellants from obstructing the twenty-five (25) feet wide portion of the right of way which lay across their land. “The owner of the servient estate may not interfere with the free and full use of the easement granted, even though the owner of the easement may have an alternative route.” 12A P.L.E. Easements § 80 (citing cases).

Appellants argue that appellees’ complaint failed to allege that the easement arose by implication. It is true that the averments of the complaint are general and did not specifically identify the legal principles upon which plaintiffs’ claim of easement was based. It did contain averments, however, that plaintiffs enjoyed a right of way across the lands of the Saylors and the Mellotts to a total width of either fifty (50) feet or twelve (12) feet. Copies of the Hann and Saylor deeds, moreover, were attached to the complaint. This was adequate to support appellees’ cause of action. If appellants required more specific information, they could have filed preliminary objections in the nature of a request for a more specific complaint or they could have proceeded to obtain such information by discovery. The complaint was not so defective as to be incapable of supporting the decree entered by the trial court.

Affirmed.

      . Some Pennsylvania cases have listed "necessity" as an element needed to create an implied easement. See, e.g.: DePietro v. Triano, 167 Pa.Super. 29, 74 A.2d 710 (1950). However, the term necessity used in this context was intended to mean only that the easement was convenient or beneficial to the dominant estate. See: Heffley v. Lohr, 149 Pa.Super. 586, 27 A.2d 275 (1942). Of course, where some degree of necessity does exist, though it falls short of absolute necessity, the necessity is a circumstance that weighs in favor of finding that the parties intended an easement. See: Thomas v. Deliere, infra; 12A P.L.E. Easements § 31.

      . In view of our decision to affirm the order enforcing the implied easement, we do not consider whether appellees could have proceeded under the Act of June 13, 1836, P.L. 551, as amended, 36 P.S. § 2731, to compel the opening of a private road across appellants’ land.


author: CERCONE, Judge:

text:
    562 A.2d 894
    COMMONWEALTH of Pennsylvania v. Nicholas J. SEMUTA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 1, 1989.
    Filed July 31, 1989.
    Petition for Allowance of Appeal Denied Dec. 8, 1989.

      Deborah K. Hoff, Waynesboro, for appellant.
    Gregory L. Lensbower, Asst. Dist. Atty., Chambersburg, for the Com., appellee.
    Before ROWLEY, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence. Appellant, Nicholas J. Semuta, entered a plea of guilty on September 2, 1987 to a charge of possession of a small amount of marijuana. On appeal, appellant now posits that he was improperly denied probation without verdict pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act. We disagree and affirm the lower court’s judgment of sentence.

The lengthy procedural posture of the instant case is as follows. Appellant entered a plea of guilty on September 2, 1987 to a charge of possession of a small amount of marijuana. On September 30, 1987, appellant requested disposition by probation without verdict. As a prerequisite to granting probation without verdict, the lower court required appellant to submit to urinalysis testing and to test negative. Appellant declined to participate in this testing. Subsequently, the court denied appellant’s request for probation without verdict and sentenced him to thirty (30) days probation with appellant paying the costs of prosecution and three hundred ($300.00) dollars to the Franklin County Law Library.

On October 12, 1987, appellant filed a motion for modification of sentence. The lower court vacated appellant’s sentence on October 20, 1987 and held a hearing on this motion on November 12, 1987. At this hearing, the court offered to grant appellant probation without verdict on the condition that he serve six (6) months probation and pay a fine of five hundred ($500.00) dollars. Appellant also rejected this offer. Subsequently, the court denied his second request for probation without verdict and reinstated the sentence imposed on September 30, 1987. Appellant filed a motion for modification of this sentence which the lower court denied on November 16,1987. Appellant then filed an appeal to this court.

On February 18, 1988, we entered an order deeming appellant’s appeal waived pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant subsequently filed a petition for allowance of appeal with our state supreme court. On December 9,1988, the Pennsylvania Supreme Court, 520 Pa. 74, 550 A.2d 1317 vacated our order of February 18, 1988 and remanded this case to us for disposition on its merits. Thus, we address the merits of appellant’s appeal as follows.

Appellant presents five issues for our review. First, appellant contends that his sentence is not appropriate with regard to section 9781(b) of the Sentencing Code. Second, appellant argues that a requirement that he undergo drug testing at the time of disposition to establish non-use of any controlled substance is impermissible, unreasonable and discordant with the statutory intent of the probation without verdict section. Third, appellant proposes that the Enzyme Multiplied Immunoassay Technique test (hereinafter referred to as the “EMIT” test) does not have an established accuracy necessary to enable a sentencing court to determine whether an accused is drug free. Fourth, appellant alleges that the sentencing court erred in offering probation without verdict to him on the conditions that he undergo probation for a period in excess of the statutory maximum sentence and that he pay a fine in excess of the fine imposed for probation without verdict. Finally, appellant argues that the sentencing court abused its discretion in denying him probation without verdict in light of similar dispositions of the court. For the reasons outlined below, we reject all of appellant’s contentions.

With regard to appellant’s first argument, we note that the right to appeal from a discretionary aspect of sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A. and section 9781(b) of the Sentencing Code. Rule 2119(f) provides that an appellant “shall set forth in his brief a concise statement of the reasons relied upon for the allowance of appeal with respect to the discretionary aspects of sentence.” Section 9781(b) states as follows:

(b) Allowance of appeal. The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

In the instant case, appellant has complied with the mandate of Rule 2119(f).

Next, we must determine whether the issue appellant has raised presents a substantial question with regard to section 9781(b) of the Sentencing Code. The determination of whether a particular issue constitutes a “substantial question” can only be evaluated on a case by case basis. Commonwealth v. House, 371 Pa.Super. 23, 30, 537 A.2d 361, 364 (1988). It is appropriate to allow an appeal “where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the sentencing code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Losch, 369 Pa.Super. 192, 201-201 n. 7, 535 A.2d 115, 119-120 n. 7 (1987). Reviewing the pertinent materials, we do not find that the issues advanced by appellant constitute a substantial question.

Appellant’s “substantial question” argument incorporates each of his aforementioned issues presented on appeal. First, appellant queries whether a sentencing court may require a defendant to be a non-user of controlled substances to be eligible for probation without verdict. Second, appellant questions whether a sentencing court may disqualify a defendant from a disposition of probation without verdict due to the accused refusal to submit to EMIT urinalysis testing. Finally, appellant asks whether the lower court in this case abused its discretion in denying him probation without verdict despite the fact that he had no previous criminal record and was certified eligible by the Department of Health. Within this last sub-issue, appellant noted that the court had previously admitted other similarly situated young offenders to probation without verdict status absent any demonstration of non-drug use.

Sentencing is a matter within the sound discretion of the trial court and will not be disturbed unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 539 A.2d 849 (1988). Absent an abuse of discretion, a sentence will not be disturbed on appeal. Commonwealth v. Desabetino, 369 Pa.Super. 300, 306, 535 A.2d 169 (1987).

In Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), our supreme court rejected a hyper-technical approach to appellate analysis of the actions of a sentencing judge. The supreme court has strongly indicated that where the record demonstrates that the lower court was aware of the relevant sentencing considerations and attempted to weigh them appropriately, appellate courts are not free to interfere arbitrarily. Id., 519 Pa. at 102, 546 A.2d at 18. This is particularly so where a pre-sentence report exists. Devers, supra. Such is the case here.

In the case sub judice, the lower court stated on the record that it utilized a pre-sentence report prior to sentencing. During sentencing, the lower court acknowledged appellant’s educational background and the fact that he had no prior criminal record. However, the court also expressed concern with appellant’s statement in the pre-sentence report that he had smoked marijuana at least once after his arrest. The lower court concluded in its opinion that appellant was not worthy of probation without verdict and implied that appellant required a more thorough disposition to reinforce the seriousness of his actions.

Appellant, citing our decision in Commonwealth v. Rocco, 362 Pa.Super. 259, 523 A.2d 1181 (1987), argues that his subsequent drug use was improperly considered by the lower court in denying his request for probation without verdict. In Rocco, we failed to find a substantial question that the lower court’s sentence of probation without verdict was inappropriate. We further noted in Rocco that appellant was eligible for the pertinent sentence because he was a first time offender and because the Commonwealth could not prove that the accused was not a drug abuser.

Reviewing the progeny of Rocco, we find that the appellant in that case was convicted of possession of a controlled substance with the intent to deliver or manufacture. 35 P.S. § 780-113(a)(30). See Commonwealth v. Rocco, 375 Pa.Super. 330, 544 A.2d 496 (1988). In contrast, appellant in the instant case pled guilty to possession of a small amount of marijuana. 35 P.S. § 780-113(a)(31). While a trial court may grant a defendant probation without verdict with regard to either offense, our review of the statute reveals that the availability of this disposition varies with regard to each. The probation without verdict statute states as follows:

A person may be entitled to probation without verdict under the following circumstances:
(1) A person who has not previously been convicted of an offense under this act or under a similar act of the United States, or any other state, is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act. The court may, without entering a judgment, and with the consent of such person, defer further proceedings and place him on probation for a specific time period not to exceed the maximum for the offense upon such reasonable terms and conditions as it may require. Probation without verdict shall not be available to any person who is charged with violating clause (SO) of section IS of this act and who is not himself a drug abuser and who does not prove the fact of such drug abuse to the satisfaction of the court, (emphasis added)

Thus, a person charged with a violation of possession with intent to deliver, like the appellant in Rocco, must prove to the court that he or she is a drug abuser to attain eligibility for a disposition of probation without verdict. The statute does not, however, require an individual convicted of possession of marijuana to prove drug abuse in order to attain eligibility for a disposition of probation without verdict.

In sum, the lower court in the case sub judice correctly noted that appellant was eligible for probation without verdict but that there was no guarantee that he would automatically receive such a disposition. The probation without verdict section of the Controlled Substance, Drug, Device and Cosmetic Act clearly states that “a person may be entitled to probation without verdict ... (emphasis added).” We interpret this to mean that it is within a court’s discretion to offer a defendant such a disposition but that there is no affirmative obligation upon a court to do so. Therefore, the lower court in this case was under no obligation to offer appellant probation without verdict.

Appellant was sentenced to a term of probation for thirty (30) days and was required to pay the costs of prosecution and the sum of three hundred ($800.00) dollars for library fees. While appellant was eligible for probation without verdict, the court declined to offer such a disposition. Reviewing 35 P.S. 780-113(g), the court was empowered to sentence appellant up to thirty (30) days imprisonment and a fine not exceeding five hundred ($500.00) dollars for possession of a small amount of marijuana. Thus, while appellant did not receive the disposition he requested, the sentence imposed in the instant case was well within the guidelines set forth in 35 P.S. 780-113(g). Therefore, we find no abuse of discretion and no substantial question upon which we can permit appellant to appeal this issue.

We also reject appellant’s contention that the lower court abused its discretion in denying him a disposition of probation without verdict in light of the court’s other dispositions. First, we note that appellant does not present any evidence of other dispositions of the lower court. Regardless, we find for the aforementioned reasons that appellant’s sentence was well within the statutory limits for possession of a small amount of marijuana.

Appellant’s remaining contentions need not be addressed due our resolution of the aforementioned issue. The lower court in the instant case properly exercised its discretion to deny appellant’s request for probation without verdict. Therefore, appellant’s allegations regarding drug testing are moot because the court neither tested the accused or granted his request for probation without verdict. Similarly, appellant’s contentions concerning a rejected disposition of probation for a period in excess of the statutory maximum sentence and a fine in excess of the fine imposed for section 780-117 are also moot.

Accordingly, the lower court’s judgment of sentence is affirmed.

      . 35 P.S. § 780-113(a)(31).

      . Id. § 780-117.

      . 42 Pa.C.S.A. § 9781(b).

      . In the instant case, appellant contests the validity of "EMIT drug testing.” Our careful scrutiny of the lower court record as well as the parties’ briefs failed to reveal whether the term "EMIT” refers to a specific method of urinalysis or a commercial trade name. Reviewing contemporary drug testing methods, however, we have discovered that the term "EMIT” is a common acronym for the Enzyme Multiplied Immunoassay Technique test.

      . While appellant’s argument concerning the legality of drug testing as a condition precedent to receiving a disposition probation without verdict is not properly before this court, our review of section 780-117 suggests that such a pre-sentence procedure may be permissible. Our reading of the statute reveals that a court may place a defendant "on probation for a specific time period not to exceed the maximum for the offense upon such reasonable terms and conditions as it may require." (emphasis added). Thus, it appears that drug testing may constitute a reasonable condition precedent to a disposition of probation without verdict.


author: BECK, Judge:

text:
    562 A.2d 899
    Carolyn HOPEWELL, Administratrix of the Estate of Kenneth Hopewell, Deceased, Appellant, v. Steven HENDRIE, Daniel Hendrie and Patricia Hendrie, Appellees.
    Superior Court of Pennsylvania.
    Argued March 9, 1989.
    Filed Aug. 11, 1989.

      Germaine Ingram, Philadelphia, for appellant.
    John T. Quinn, Philadelphia, for appellees.
    Before BECK, HOFFMAN and CERCONE, JJ.
   BECK, Judge:

The issue presented for decision is whether the trial court abused its discretion in refusing to strike off a discontinuance in this wrongful death and survival action where the discontinuance was mistakenly filed by plaintiff-appellant’s counsel of record without the knowledge of appellant or of the attorney who was actually litigating the case, the petition to strike the discontinuance was filed within thirty days of appellant’s discovery of the error, there has been no demonstration of prejudice to the defendants-appellees and the statute of limitations on appellant’s cause of action has expired.

We find that the trial court did abuse its discretion and reverse.

On January 25, 1981, Kenneth Hopewell was struck and killed by an automobile driven by defendant Steven Hendrie and owned by defendants-appellees Daniel and Patricia Hendrie. On September 5, 1981, plaintiff-appellant, sister of the decedent and administratrix of his estate, instituted suit. Appellant’s original counsel and counsel of record in the case, Mr. Friedman, later engaged co-counsel, Mr. Ross, to assume responsibility for discovery, negotiations and trial of the case. Inexplicably, on March 25, 1987, Mr. Friedman filed a praecipe to mark the case settled, discontinued and ended. Neither appellant nor Mr. Ross authorized the filing, nor did they have knowledge of it. Although Mr. Friedman acknowledged by affidavit that his signature appears on the praecipe, his affidavit also states that he does not recall filing it and can only conclude that the filing of the praecipe was an error.

Despite the discontinuance, several months later the case appeared on the Major Jury Trial List and Mr. Ross contacted counsel for defendants-appellees, Mr. Quinn. Mr. Quinn then informed Mr. Ross that the docket reflected that the case had been discontinued and refused to consent to removal of the discontinuance. Within thirty days, on December 30, 1987, appellant filed a Petition to Strike Discontinuance.

The trial court denied the Petition, finding that appellant had inexcusably waited nine months from the date of the filing of the praecipe to seek to strike the discontinuance and that appellees would be prejudiced by striking it. The court did not specify what prejudice appellees would suffer.

Pennsylvania Rule of Civil Procedure 229 governs both the filing and the striking of a discontinuance. As to striking a discontinuance, the rule states:

(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.

Pa.R.C.P. 229(c).

The authority to strike off a discontinuance is vested in the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion. Pesta v. Barron, 185 Pa.Super. 323, 138 A.2d 690 (1958).

The exercise of discretion by the trial court is not, however, standardless. The rule expressly contemplates the striking of a discontinuance where necessary to protect a party to the lawsuit from unreasonable inconvenience, vexation, harassment, expense or prejudice. Although this standard has most frequently been applied in cases where the plaintiff has actually intended to discontinue a lawsuit but the defendant objects, Consolidated National Bank v. Mc-Manus, 217 Pa. 190, 66 A. 250 (1907), it equally will operate to protect a plaintiff who demonstrates a need for relief from a discontinuance it has obtained. The rule itself states that a discontinuance may be stricken in order to protect “any party to the lawsuit” (emphasis added), obviously including the plaintiff. See also Murdoch v. Murdoch, 418 Pa. 219, 210 A.2d 490 (1965) (discontinuance by plaintiff based on settlement of action could be stricken, but only if plaintiff established by clear and convincing evidence that settlement giving rise to discontinuance was the result of fraud, mistake or imposition).

The facts of the instant case reveal that the discontinuance was merely the result of simple error, not by appellant herself but by her counsel of record. There is no indication that appellant discontinued the action in order to gain any procedural advantage, i.e. to recommence the suit in another county or otherwise. Compare Brown v. Phillips Gas & Oil Co., 365 Pa. 155, 74 A.2d 105 (1950) (discontinuance not permitted over objection of defendant where only motive is to institute same action in another forum); Nichols v. Horn, 363 Pa.Super. 301, 525 A.2d 1242 (1987) (discontinuance of first support action by mother must be stricken where discontinuance was motivated by desire to file another support action the next day in order to gain advantage of recently enacted longer statute of limitations applicable to support actions).

Nevertheless, the trial court refused to relieve appellant of the results of this error on two grounds. First, it found that appellant had unexcusably delayed in seeking to correct the error by petitioning to strike the discontinuance. In fact, however, appellant acted immediately upon discovering the error. She sought to remove the discontinuance within one month of discovering it had been filed. The delay prior to that time cannot fairly be charged against appellant. She could not seek to strike a discontinuance when she had no reason to know it had been filed.

The trial court also found that appellees would be prejudiced by striking the discontinuance. We note first that Rule 229(c) does not expressly require that the court consider any possible prejudice to the party opposing the striking of the discontinuance. However, the rule does focus on prejudice and we consider it appropriate to consider prejudice to both sides and balance the competing interests of the parties.

On the surface, it is clear that appellees will be prejudiced in the sense that they will have to defend the action. However, we do not see this as the kind of prejudice that should be focused on in deciding whether to strike a discontinuance for the simple reason that in every action where the plaintiff seeks to strike its own discontinuance the result will be that the defendant must defend the formerly discontinued action. The prejudice that is relevant is the impact on the defendant’s ability to defend. We must focus on whether allowing the action to proceed after it had been discontinued will put the defendant at any significant disadvantage. See Nichols v. Horn, supra (discontinuance must be stricken where allowing discontinuance will severely prejudice defendant by denying him his statute of limitations defense).

Here, there is no indication that the fact that the action had been discontinued for ten months has had any impact on appellees’ ability to defend. There is no proof that appellees’ have changed their position in any way in reliance on the discontinuance, nor is there any indication that documents or witnesses on whom appellees’ might wish to rely have now become unavailable. In the trial court, appellees simply stated that they did not know whether all of their witnesses were still available. Finally, we cannot conclude that the time during which the action has been discontinued is so lengthy that prejudice to appellees could be presumed.

On the other hand, the prejudice to appellant is obvious. Unless the mistaken discontinuance is stricken, appellant is out of court because the statute of limitations on her cause of action has expired. Moreover, this harsh result will be visited , upon appellant despite the fact that she has established that she was not responsible for the filing of the discontinuance and, upon learning of it, acted with complete diligence in attempting to have it stricken.

In a recent opinion of the Supreme Court, Jung v. St. Paul’s Parish, — Pa. —, 560 A.2d 1356 (Pa.1989) (plurality), the Court reiterated that in the context of opening a default judgment (or a judgment of non pros), the court must ascertain whether there are any equitable considerations that weigh in favor of allowing the party against whom judgment was entered his/her day in court. Id., — Pa. at —, 560 A.2d 1356. The Court also focussed specifically on a situation like the present one, where simple attorney error indicating pure oversight, without fault of the party itself, resulted in the entry of a default judgment. In such a situation, the Court found that equity demanded the opening of the judgment. Id., — Pa. at —, 560 A.2d 1356.

We view the instant case in a similar light. Appellant should not be denied her day in court simply because her attorney of record committed an error which appellant moved to correct immediately upon discovering it. The trial court erred in refusing to strike the discontinuance.

The order of the trial court is reversed and the case is remanded for the removal of the discontinuance and the reinstatement of appellant’s action. Jurisdiction is relinquished.