author: McEWEN, Judge:

text:
    524 A.2d 1362
    Ruby JOYCE, Appellee, v. SAFEGUARD MUTUAL INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued June 30, 1986.
    Filed April 28, 1987.

      John J. McGrath, Philadelphia, for appellant.
    Allen L. Feingold, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WICKERSHAM , BROSKY, McEWEN, OLSZEWSKI, MONTEMURO, BECK , KELLY and JOHNSON, JJ.

       WICKERSHAM, J. participated in the consideration of and decision in this appeal prior to his resignation.

       BECK, J. did not participate in the consideration of a decision in this appeal.

   McEWEN, Judge:

This appeal has been taken from an order which denied appellant’s motion for leave to file an answer and new matter. Appellant claims that the trial court erred as a matter of law when it denied the motion solely because it was untimely, without regard to whether the appellee had been prejudiced by the delay. Alternatively, appellant claims that the trial court abused its discretion in failing to balance the equities of the situation prior to denying the motion. We affirm.

This litigation began on January 7, 1980, when appellee filed a complaint. More than eight months later, on September 17, 1980, counsel for appellant provided for the entry of an appearance but did not file any pleading. That appearance for appellant was withdrawn on April 25, 1984, when present counsel for appellant filed an appearance. Almost six months thereafter, on October 23, 1984, eight days before the case was scheduled for trial before a panel of arbitrators, appellant filed a Motion for Leave to File an Answer to Plaintiff’s Complaint with New Matter. Appellant did not seek to delay the trial before the arbitrators pending disposition by the court of that motion, but participated in the proceedings before the arbitrators. When the arbitrators entered an award in favor of appellant, appellee undertook an appeal to the Court of Common Pleas. On November 23, 1984, the hearing court denied the motion of appellant which sought leave to file an answer and new matter, and this appeal followed.

It is necessary, of course, to first address the assertion of appellee that this appeal should be quashed because the order denying appellant’s motion for leave to amend was not a final order. “It is well settled that an appeal will lie only from a final order unless otherwise permitted by statute.” Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983). Our study of whether an order is final and appealable must go beyond the technical effect of the order to an examination of the practical ramifications of the ruling. That study here requires a finding that the order is sufficiently final to allow review, since the refusal to allow appellant an opportunity to present the proposed affirmative defense of the statute of limitations put appellant “out of court” as to that defense. See Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351 (1966); Urban v. Urban, 332 Pa.Super. 373, 378, 481 A.2d 662, 665 (1984); Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 166, 469 A.2d 233, 235 (1983); Hughes v. Pron, 286 Pa.Super. 419, 423, 429 A.2d 9, 11 (1981). Having determined that" the order was final and appealable, we proceed to consider the merits of the appeal.

It is not uncommon, of course, for an answer to be filed more than twenty days after service of the complaint and some would even assert that the greater number are so filed. The custom among trial counsel, pursuant to Pennsylvania Rule of Civil Procedure 1003, is to routinely agree to waive the rules regarding “the time for serving process or for filing or serving pleadings”. Even when the parties have not agreed to waive such rules, trial counsel are not inclined to enforce strict technical compliance since such measures would be counterproductive. As a general rule, the failure of a plaintiff to proceed to a default judgment, in the absence of an agreement between the parties to waive the rules for a timely filing, is an indication that the plaintiff has not been prejudiced by the delay and may even be considered an implicit extension of the period for filing an answer. Allison v. Merris, 342 Pa.Super. 571, 572, 493 A.2d 738, 739 (1985). We cannot, however, excuse the abject indifference here reflected by an intervening period of almost five years between the service of the complaint and the effort to file an answer eight days before the trial was to commence before arbitrators. Tradition and custom are not, therefore, factors for our consideration of this appeal. Rather, we are to be guided here solely by the applicable statutes, rules of procedure and case law.

Appellant claims that the trial court erred as a matter of law when it denied the motion solely because it was untimely, without considering whether any prejudice would have befallen appellee by the filing of so delayed a pleading. We disagree and hold that only after the party who seeks to file a late pleading has shown sufficient cause for the delay, must the court enter upon an inquiry and make a determination of whether prejudice will befall the opposing party.

The period of time within which to file pleadings subsequent to the filing of the complaint is twenty days. Pa.R. Civ.P. 1026. An answer not filed within the prescribed time period may be stricken. Pa.R.Civ.P. 1017(b)(2). Where, however, there is a motion presented to the court to extend or shorten the period of time for the service of process, or for the filing or the service of pleadings, Rule of Civil Procedure 1003 requires the party making the request to show cause why the applicable filing periods should be extended:

Rule 1003. Waiver of Rules. Extension of Time
Rules relating to the manner of commencing an action or the time for serving process or for filing or serving pleadings may be waived by agreement of the parties. The court on cause shown may extend or shorten the time within which pleadings shall be filed or process served.

Pa.R.Civ.P. 1003 (emphasis supplied). See Paulish v. Bakaitis, 442 Pa. 434, 442, 275 A.2d 318, 322 (1971) (Trial court did not abuse its discretion in striking plaintiffs reply where no explanation was offered for extraordinary delay without regard to any possible prejudice to defendants.); Delgrosso v. Gruerio, 255 Pa.Super. 560, 565, 389 A.2d 119, 122 (1978) (Pa.R.Civ.P. 1026 must be read in conjunction with Pa.R.Civ.P. 1003 which permits the time period within which pleadings must be filed to be extended or reduced.) See also: 5 Standard Pennsylvania Practice 2d § 26.16 (“The defendant must show cause why he should be permitted to file a late answer, and he must also show that the plaintiff will not be prejudiced thereby.”). Thus, it cannot be disputed that a “showing of cause” is a condition precedent for filing a late pleading.

Nor may it be questioned that the factor of prejudice to the opposing party is to be considered by the court when a party seeks to file a late pleading, but that factor is to be considered only if the party seeking to file a late pleading first shows cause for the failure to file the pleading in timely fashion. Here, appellant did not fulfill the initial requirement that cause be shown to extend the time period within which to file the answer and new matter.

Appellant’s reliance upon Biglan v. Biglan, 330 Pa.Super. 512, 479 A.2d 1021 (1984), for the proposition that those rules which impose pleading deadlines must be liberally construed, is misplaced. The decision in Biglan focuses upon Rule 1033 and a party who seeks to amend a pleading. Appellant here does not seek to file an amended answer, but rather seeks permission to file the original answer five years late, and without expression of reason for the delay. The mandate of Rule 126 is to liberally construe, but not to erase, the Rules of Civil Procedure. This argument is, therefore, without merit.

Appellant further argues that if it had boldly filed the untimely answer and new matter of record, without seeking leave of court, the burden of moving to strike that late pleading would have shifted to appellee and would have required appellee to show that she had been prejudiced by the late filing of the answer and new matter. Thus, reasons appellant, appellant has been penalized for compliance with the rule that requires that a party seek leave of court to file a late answer, a burden that would not have befallen appellant if it had ignored the rule and simply, without more, filed the pleading. This avowal of inequity is spurious. It is true that had appellant simply filed the answer without permission of the court, appellee would have been required to initiate a motion to strike the pleading. Appellee would have done so, of course, by filing preliminary objections in the nature of a motion to strike. Appellant, had appellee been forced to such an initiative, would have been required to file a response to the petition to strike the late answer and new matter, and presented in that response, as well as at the subsequent evidentiary hearing, the basis for an assertion that there was “cause” why the late pleading should be allowed. Had appellant failed to establish such cause, appellee would have been relieved of the burden of establishing the manner in which she was prejudiced. Thus, we reject the assertion of appellant that it has suffered by reason of the fact that it complied with the requirement that leave of court be sought for the late filing of the pleading.

The “cause shown” requirement is not an onerous one and once met permits the trial court to then focus upon the question of prejudice. The hearing court here had no reason or need to proceed to examine whether the grant of the motion for leave to file the late pleading would cause prejudice to the adverse party since the initial requirement of “cause shown” had not been met.

Accordingly, the order of the distinguished Judge Alfred J. DiBona denying appellant’s motion for leave to file an answer is affirmed.

      . Present counsel entered his appearance for Safeguard Mutual Insurance Company. In subsequent motions, present counsel indicated that he represented Pennsylvania Insurance Guaranty Association. Appellant’s brief and our docket entries reflect that counsel represents Safeguard.

      . The prejudice referred to is such prejudice as flows from the fact that the allegations presented in the late pleading are filed in an untimely fashion, and is not such prejudice as results from the fact that appellee may lose her case on the merits if the pleading is allowed. See Bata v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    524 A.2d 1365
    COMMONWEALTH of Pennsylvania v. Thomas BERARDI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1987.
    Filed April 21, 1987.

      Frederick B. Gieg, Jr., Altoona, for appellant.
    William J. Haberstroh, District Attorney, Altoona, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and ROBERTS, JJ.
   DEL SOLE, Judge:

Appellant was charged with violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. 780-113(a)(30), and proceeded to trial on November 21, 1985. Following two days of testimony, the jury was left to deliberate. However, on November 23, 1985, the trial court declared a mistrial for manifest necessity insofar as the jury was unable to reach a verdict. The case was then called for retrial. Appellant filed a motion to dismiss alleging that the trial court erred in declaring a mistrial, and as a result, Appellant was being placed in double jeopardy. This motion was denied by the Honorable R. Bruce Brumbaugh, who was assigned the case for retrial. Appellant thereafter filed this appeal before the Superior Court under the auspices of Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (an interlocutory appeal founded on double jeopardy grounds is proper due to the nature of the double jeopardy right and the need for immediate resolution of pre-trial controversy to protect the rights of the accused).

Preliminarily, we must establish whether or not this appeal is properly before us. Although the issue of appeal-ability has been raised by neither party, it is incumbent upon the Superior Court to raise jurisdictional questions sua sponte. Commonwealth v. Williams, 357 Pa.Super. 462, 464, 516 A.2d 352, 353 (1986).

Subsequent to the pronouncement of Bolden, supra, our Supreme Court has reevaluated its position on interlocutory appeals alleging double jeopardy. In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), the Court noted the occurence of needless delays, engendered by frivolous appeals, which ultimately “hinderfed] the administration of justice as well as the public interest”. Id., 510 Pa. at 346, 508 A.2d at 291. In response, a new procedure for processing interlocutory appeals based on double jeopardy grounds was promulgated. An exception was carved from Bolden which provides that, where a defendant asserts a double jeopardy claim before the trial court, that court must address its merit. If the hearing court makes a written finding that the motion is frivolous, an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted. Ibid. However, “[ajbsent such a finding, an appeal may be taken from the denial of the motions.” Ibid. See Commonwealth v. Learn, 356 Pa.Super. 382, 514 A.2d 910 (1986).

In the case at bar, the record shows that the trial court painstakingly considered the merits of Appellant’s double jeopardy argument. By his Opinion, Judge Brumbaugh held “[t]hat defendant’s motion was frivolous is manifest”. (Opinion, 2). Thus, pursuant to the directives espoused in Brady, the instant appeal is improperly before this Court.

Parenthetically, we note that the obvious goal sought by our Supreme Court in its pronouncement of Brady was to establish a procedure by which meritorious claims alleging double jeopardy are efficiently resolved. By the same token, the impetus behind Brady was also to prevent frivolous double jeopardy claims from causing needless delays at the trial court level. In the case sub judice, the inaction by the prosecuting attorney in failing to file a motion to quash pursuant to Brady resulted in the unnecessary expenditure of time and resources; briefs were prepared and submitted to this panel, adding months to the disposition of this case. Had a motion to quash been filed, much time could have been saved. We point this out so that the Commonwealth’s counsel will realize that, in those cases where frivolity was found by the trial court, Brady provides a method by which such cases are to be efficiently processed.

Accordingly, the appeal on the merits of Appellant’s double jeopardy claim is quashed as interlocutory.

Appeal quashed.


author: WIEAND, Judge:

text:
    524 A.2d 1367
    John W. HOOVER v. Jeremiah JACKSON, his heirs and assigns; Thomas Newton, his heirs and assigns; Nathaniel Lewis, his heirs and assigns; William Lewis, his heirs and assigns; John Dunlop, his heirs and assigns; Charles Huston, his heirs and assigns; Joseph Harris, his heirs and assigns; Samuel Christ, his heirs and assigns; and Beech Creek Borough Authority. Appeal of BEECH CREEK BOROUGH AUTHORITY. John W. HOOVER, Appellant, v. Jeremiah JACKSON, his heirs and assigns; Thomas Newton, his heirs and assigns; Nathaniel Lewis, his heirs and assigns; William Lewis, his heirs and assigns; John Dunlop, his heirs and assigns; Charles Huston, his heirs and assigns; Joseph Harris, his heirs and assigns; Samuel Christ, his heirs and assigns; and Beech Creek Borough Authority, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed April 30, 1987.

      Michael K. Hanna, Lock Haven, for appellant in No. 410 and for appellee in No. 434.
    Stephen W. Furst, Bellefonte, for appellant in No. 434 and for appellee in No. 410.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

In these cross-appeals from final judgment in an action to quiet title, there are two principal issues. The first concerns the sufficiency of the evidence to establish title by adverse possession of a tract of dense woodland; the second concerns the weight to be given to the amount of acreage recited in a deed when it is at variance with the actual acreage enclosed within the specific boundaries defined in the deed description. The trial court held that barricading a road leading into the tract of woodland, together with sporadic use of the tract, was inadequate to establish title by adverse possession and that the specific boundaries recited in a deed description were controlling of the acreage conveyed. We affirm.

The disputed land is part of a 413V4 acre tract contained in a warrant issued by the Commonwealth of Pennsylvania to Jeremiah Jackson in 1794. Title to this tract became vested in Samuel Christ by deed dated September 7, 1882. Christ conveyed away portions of the tract during the succeeding three years, so that by 1886 he retained title to only 256.5 acres. It is this tract which became the subject of dispute in the instant action.

By deed dated December 3, 1888, Christ conveyed to John Findley a tract of land which, according to the deed, contained 125 acres. Following several intervening conveyances, the tract was ultimately conveyed, on June 21, 1957, to the Borough of Beech Creek; and the Borough, by deed dated October 15, 1973, conveyed the same to Beech Creek Municipal Authority. When the deed description was surveyed, it was learned that the tract described in the deed contained 152.3 acres.

The trial court found as a fact that the Authority mistakenly believed it had acquired title to all the land owned by Samuel Christ at the time of his deed to John Findley. In fact, however, title to a tract, which the trial court found to contain 104.2 acres, remained vested in Christ. This remaining land was not conveyed by Christ during his lifetime, but it was subsequently sold for nonpayment of taxes by the Treasurer of Centre County. John W. Hoover asserts title to this remaining tract through a deed from the Treasurer of Centre County. He has paid current taxes on the tract. The usual means of access to this tract, however, was along a roadway which crossed the Authority’s land. When Hoover was denied access via the road, he commenced an action to quiet title naming the Authority, inter alia, as defendant.

After trial without jury, the trial court found (1) that John Hoover had record title to the disputed tract of 104.2 acres; (2) that the Authority had failed to establish title to the 104.2 acre tract by adverse possession; and (3) that the remainder of the Christ tract had been conveyed in 1888 to John Findley and had become vested by subsequent conveyances in the Authority. Both parties appealed. The Authority contends on appeal that its evidence established title by adverse possession to the tract of 104.2 acres. Hoover, on the other hand, contends that the land sold by Christ to Findley in 1888, and now owned by the Authority, contained only 125 acres and that the balance of Christ’s lands, containing 131.5 acres, is owned by him.

The law pertaining to adverse possession was reviewed by this Court in Flickinger v. Huston, 291 Pa.Super. 4, 435 A.2d 190 (1981) as follows:

“It is well settled that he who asserts title by adverse possession must prove it affirmatively.” Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). “[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years____ Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts---- He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, supra, 263 Pa.Super. at 161, 397 A.2d at 796 (quotations and citations omitted). In Inn Le’Daerda, Inc. v. Davis, supra, we noted that
“[a] sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated____ It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land ... but nothing short of an actual possession, permanently continued, will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required____ Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor____”
241 Pa.Super. at 159, 360 A.2d at 213 (quoting Parks v. Pennsylvania Railroad Co., 301 Pa. 475, 481-82, 152 A. 682, 684 (1930) (citations omitted)). Thus, “only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.” Smith v. Peterman, supra 263 Pa.Super., at 161, 397 A.2d at 796.

Flickinger v. Huston, supra, 291 Pa.Superior Ct. at 7-8, 435 A.2d at 192. See: Klos v. Molenda, 355 Pa.Super. 399, 402, 513 A.2d 490, 492 (1986); Bigham v. Wenschhof 295 Pa.Super. 146, 149-150, 441 A.2d 391, 393 (1982).

In the instant case, the trial court found that the Authority and its predecessor in title had used the disputed parcel as a watershed since 1957. The court concluded, however, that the activities which the Authority had conducted on the land were insufficient to give notice that it was making an adverse claim. These activities consisted of the improvement and maintenance of the stream and a road thereon and, the removal of fallen trees and dead animals twice a year. The Authority also had patrolled the land from time to time and controlled access thereto by placing a fence across the road leading thereto. This fence, however, was located on the tract to which the Authority held record title and not on the land to which it was claiming title by adverse possession.

The Authority’s activity on the Hoover tract was inadequate to acquire title by adverse possession, and the trial court correctly so held. In Darrah v. Kadison, 55 Pa.Super. 335, 343 (1913), this Court said:

To maintain an actual possession to woodland as such, it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belongs. Hole v. Rittenhouse, 37 Pa. 116 [(1860)]; Olewine v. Messmore, 128 Pa. 470 [18 A. 495 (1889) ]. Actual possession may be taken by inclosing and cultivating, without residence or by residence without cultivation, under a bona fide claim where there is a designation of the boundaries with the ordinary use of the woodland. This possession accomplishes an ouster, and is entirely different from the occasional or temporary use of the land without an intention to permanently cultivate or reside thereon or use it in some other manner consistent with the condition of the property.

See also: Robin v. Brown, supra 308 Pa. at 126-127, 162 A. at 161-62; Parks v. Pennsylvania R.R. Co., supra; Bigham v. Wenschhof supra; Flickinger v. Huston, supra.

In the instant case, the Authority’s evidence did not show that it had taken actual, notorious and continuous possession of the Hoover tract for twenty-one years. It had not ousted the true owner from his land, and, indeed, its use of the land was so sporadic that it cannot be said that its flag could ever be seen flying over the same. By entering the land twice a year to clear it of dead trees and dead animals, the Authority did not take continuous possession thereof. Its activities were not “of such a character as [to] compel[ ] the real owner to take notice of the possession of the disseisor____” See: Parks v. Pennsylvania R.R. Co., supra.

The Authority argues, however, that by placing a fence across the road leading into the Hoover property so as to exclude strangers from entering the tract, it had effectively enclosed the property. This fence, together with the natural mountainous terrain, served to exclude strangers, it is argued, and, when coupled with its use of the water from the stream and other activities, was sufficient to establish actual possession of the tract and to give notice to others that the Authority was claiming the tract as its own.

“The inclosure of land is undoubtedly evidence of possession, and, either of itself or in connection with other acts of ownership, may be sufficient on which to base an adverse claim.......Where inclosure is essential, or is relied upon as the evidence of possession, it must, to be effective, be complete and so open and notorious as to charge the owner with knowledge thereof. The inclosure should also be appropriate to fit the premises for the purposes to which they are adapted, or for which the occupant may desire to use them.......If the natural, together with the artificial, barriers used, are sufficient clearly to indicate dominion over the premises, and to give notoriety to the claim of possession, it is sufficient to put the statute of limitation in motion. The question in such cases is whether the inclosure, like other acts of possession, is sufficient to ‘fly the flag’ over the land, and put the true owner upon notice that his land is held under an adverse claim of ownership”: 1 R.C.L., section 11, page 698.
“Where an inclosure is relied on to establish adverse possession, it must be of a substantial character, so as to be a protection against outside interference in adapting the premises to some suitable use. An inclosure of the land by felling trees and lapping them one upon another, or by the erection of a brush fence, or an inclosure by stakes, or the maintenance of a fence which is ‘crooked, rickety and dilapidated,’ or stretching around a twenty-five hundred acre tract one barbed wire nailed to trees and saplings and a few posts at about four feet from the ground, and under the barbed wire two strands of telephone wire, is not sufficient”: 2 C.J., section 15, page 62.

Robin v. Brown, supra, 308 Pa. at 127, 162 A. at 161-162. See: Flickinger v. Huston, supra 291 Pa.Super. at 10, 435 A.2d at 193; 2 C.J.S. Adverse Possession § 36 at 694-696 (1972); 3 Am.Jur.2d Adverse Possession § 31 (1986).

In the instant case, the only attempt made by the Authority to prevent entrance to the Hoover tract was by a fence erected across the road leading to the tract. It relied upon steep mountain ridges to prevent access from other directions. The trial court found, however, and we agree, that the mountain ridges were inadequate to give notice to the true owner that the Authority was claiming a title which was adverse and hostile to the owner. The fence across the road was located on land owned by the Authority, not on the Hoover tract. Except for this fence, the Authority did nothing to fly its flag over the land in such a way as to give notice that it was claiming an ownership interest therein. As such, there was neither a continuous nor hostile possession sufficient to support a claim of title. See and compare: Dowdle v. Wheeler, 76 Ark. 529, 89 S.W. 1002 (1905). To hold that adverse possession of wild and unoccupied land could be established by limited entry and possession as was present here would permit land to be taken without any notice to the owner or reason to believe that he had been disseized. This would have an unfortunate and destabilizing effect on titles to real estate, and we decline to go down that path. See and compare: Bigham v. Wenschhof supra (no title by adverse possession where evidence showed that defendant’s only activities on the land consisted of cutting timber and posting “no trespassing” signs during hunting season); Flickinger v. Huston, supra (evidence that plaintiffs had paid taxes; cleared part of land and planted trees thereon; erected a barbed wire fence around the land; cleared two streams running through the land; drained a swamp; erected a flagpole, outhouse and picnic tables and used the land periodically for picnics held insufficient to establish title by adverse possession); Darrah v. Kadison, supra (adverse possession of woodland not established by evidence that appellant had cut fence posts and timber from the property).

In Hoover’s cross-appeal, it is contended that the trial court erred in finding that the Findley parcel, which had been conveyed to the Authority in 1973, consisted of 152.3 acres and that the remainder of the Christ property, which ultimately was conveyed to Hoover, consisted only of 104.2 acres. He contends that the Findley deed expressly stated that the parcel being conveyed consisted of 125 acres and that this description should control over the specific courses and distances, together with lines of adjoiner, contained in the deed description. This is especially so, Hoover argues, in light of the fact that the boundary description had not been prepared as the result of a survey. We disagree.

“Evidence of the acreage of land, especially where, as in this case, the number of acres is followed by the words ‘more or less’ has little weight as against specific boundaries and is in its nature an uncertain method of description and often a mere estimate. Where, however, ... a doubt exists as to the actual location of the boundary and the writing contains no words to definitely fix the line by either metes and bounds or monuments on the ground, evidence of acreage becomes a material factor in the determination of the intention of the parties____” Dawson v. Coulter, 262 Pa. 566, 570, 106 A. 187, 188 (1919). See: Bosler v. Sun Oil Co., 325 Pa. 411, 415, 190 A. 718, 719 (1937); 12 P.L.E. Deeds § 73, at 56 (1985); 23 Am.Jur.2d Deeds § 56 (1983). In the instant case, the courses and distances, as well as the lines of adjoiner, stated in the Findley deed were sufficiently specific so that they could be located on the ground. The trial court did not err when it relied upon the deed description in preference to the amount of acreage recited in the deed.

Judgment affirmed.

      . This deed purported to convey to Hoover’s predecessors in interest a tract containing 185 acres.

        . In his cross-appeal, Hoover argues that the trial court erred in permitting the Authority to assert adverse possession as an affirmative defense. This argument is without merit. As a general rule, when a private or municipal body having the power of eminent domain enters upon the private lands of another and uses the land for its own purposes, the law presumes that it does so under its right of eminent domain and not as a willful trespasser whose trespass may grow into title. However, this presumption can be rebutted by evidence showing that the entry was made other than through the exercise of the power of eminent domain. See: Ontelaunee Orchards, Inc. v. Rothermel, 139 Pa.Super. 44, 52-53, 11 A.2d 543, 546-547 (1940).
      In the instant case, the evidence showed that the Authority had entered upon and used the land in question under the belief that it had acquired title thereto when it purchased the adjoining parcel. This was sufficient to rebut the presumption that the Authority had acted pursuant to its power of eminent domain when it used the disputed parcel. See and compare: Covert v. Pittsburg & Western Railway Co., 204 Pa. 341, 54 A. 170 (1903). The trial court, therefore, did not err in permitting the authority to raise the issue of adverse possession.

      . In its initial opinion, the trial court found that this fence had been erected in 1967 and, therefore, had not been in existence for 'the necessary twenty-one year period. However, after the Authority contested this finding in its post-trial motions, the court amended its opinion to find that the fence had been in existence for over twenty-one years. Hoover argues that this was error. We disagree. The evidence produced at trial clearly showed that a cable gate had been placed across the roadway sometime prior to 1960 and that this gate had remained in place until 1967 when it was replaced with a more permanent fence. The trial court properly amended its findings to conform to this evidence.

      . There was also evidence that the Authority had constructed and maintained a reservoir and coffer dams as part of the watershed. However, the trial court found that these were located on an adjoining tract and not on the property here in dispute. These activities, therefore, can be of no benefit in establishing the Authority's claim of title by adverse possession.


author: MONTGOMERY, Judge:

text:
    524 A.2d 1372
    Jacqueline FERGUSON, Administratrix of the Estate of Joann Edmunds, Deceased, Appellant, v. Paul KING, Rose Alma King, His Wife, Keith Dorsett, Hallie A. Dorsett, His Wife, and the South Pittsburgh Savings and Loan Association, Appellees. Susie HARVEY, Administratrix of the Estate of Aaron Edmonds, Appellant, v. SOUTH PITTSBURGH SAVINGS AND LOAN ASSOCIATION, Paul R. King, Rose Alma King, Keith M. Dorsett, and Hallie A. Dorsett, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1987.
    Filed April 28, 1987.

      Alan H. Perer, Pittsburgh, for appellant (at 1196).
    John J. Ross, Pittsburgh, for appellant (at 1197).
    Daniel F. LaCava, Pittsburgh, for King, appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

These companion appeals involve identical factual backgrounds and legal issues. Each Plaintiff-Appellant is the administratrix of the estate of an individual who died in a fire which occurred on June 29, 1983 in a building in Aliquippa, Pennsylvania. The building contained several apartments and a tavern. At the time, the decedent Aaron Edmonds was a tenant and the decedent Joann Edmunds was his guest. The Defendant-Appellee, South Pittsburgh Savings and Loan Association (hereinafter referred to as the “Association”), filed a motion for summary judgment in the lower court, asserting that it could not be held liable for any alleged negligence in the incident because it did not have possession or control of the building at any time material to the fire. The lower court sustained that motion, and ordered the entry of judgment in favor of the Association in each of the cases. The instant appeals arise from that Order. The Appellants assert that the lower court erred in entering summary judgment in favor of the Appellees. We are constrained to agree.

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035(b), which provides, in pertinent part:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

See also Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). In the consideration of a motion for summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, as well as admissions on file, giving them the benefit of all reasonable inferences which may be drawn. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982). Thus, the record as a whole must be examined in the light most favorable to the party opposing the motion. Community Medical Services of Clearfield, Inc. v. Local 2665, American Federation of State, County and Municipal Employees, AFL-CIO, 292 Pa.Super. 238, 437 A.2d 23 (1981).

With such guidelines in mind, we have reviewed the pleadings, deposition transcripts, exhibits to both, and other matters which were part of the record before the lower court, and germaine to the motion for summary judgment submitted by the Association. It appears that the Association originally owned the building where the fire later occurred. It sold the building, on May 14, 1981, to Defendants Mr. and Mrs. Paul King and Mr. and Mrs. Keith Dorsett. The sale was by an installment land contract which provided for the financing of both the purchase, and renovations to the building by the Association. The installment land contract included a provision which stated:

Seller may make or cause to be made reasonable entries upon and inspection of the property, provided that seller shall give buyer notice prior to any such inspection specifying reasonable cause therefor related to seller’s interest in the property.

In an Answer filed by the Association, it maintained that it had a title interest in the property after May 14, 1981. The contract provided that the Association should deliver possession of the premises to the buyers on or before June 1, 1981. Further, the same document contained a covenant that the buyers should keep the property in good repair and not commit waste or permit impairment to or deterioration of the property.

The Kings and Dorsetts engaged in the construction work, financed by the Association, designed to rehabilitate the property. Pursuant to the inspection right contained in the installment land contract, the Association made several inspections of the property during 1981. Moreover, the Association did not disburse funds to the buyers in connection with such rehabilitation work until the Association determined, by its inspections, that certain repairs had been made by the buyers.

There were six apartments in the three-story brick building in question. The buyers rented a number of these apartments to various individuals, including Aaron Edmonds, one of the decedents.

On April 8, 1982, the Association notified the Kings and Dorsetts of an intention to foreclose because of non-payments under the terms of the installment land contract. Thereafter, the Association entered a confession of judgment in ejectment against the buyers on or about June 28, 1982. However, the Association never thereafter enforced the judgment by retaking physical possession of and ejecting the Kings and Dorsetts from the premises. Rather, the Kings and the Dorsetts were not ejected, and they continued to operate and maintain the building, as well as the tavern.

On June 29, 1983, the fire occurred in the building, which resulted in the deaths of Mr. Edmonds and his guest, Ms. Edmunds. On October 28, 1983, the Appellee Association submitted a sworn proof of loss statement to the insurance carrier of the building. Therein, in asserting a claim to recover proceeds of the policy for losses occurring in the fire, the Association stated that it was the title holder, and that no other person or persons had any interest in the building. Subsequently, the Association was paid the insurance proceeds it had claimed.

In the Complaint filed in the lower court by Jacqueline Ferguson, administratrix of the estate of Joann Edmunds, (the Appellant at No. 1196 Pittsburgh, 1986), various types of negligence were alleged as to the Association. These included assertions that the Association: had made inadequate, inappropriate and unsuitable alterations or modifications to the residential structure; failed to maintain the premises in accordance with applicable statutes, ordinances, building codes and other safety measures; failed to install and maintain safety devices such as fire extinguishers, sprinklers, and other safety measures; failed to properly maintain a fire escape or other emergency exits; tied or otherwise affixed rope or other materials to the fire escape such as it make proper ingress and egress possible; failed and neglected to inspect or provide for the inspection of the premises for defects or dangerous conditions; failed to repair or abate such conditions as would have rendered the premises a fire hazard; and engaged in numerous other departures from reasonable care.

The complaint filed by Susie Harvey, administratrix of the estate of Aaron Edmonds (the Appellant at No. 1196 Pittsburgh, 1986), was more narrowly drawn. It asserted that Mr. Edmonds was forced to evacuate his third floor apartment because of a fire therein, and while attempting to do so, he was unable to use the fire escape provided by the Defendants because they had negligently caused it to be secured in a fixed position, thereby making it useless for Mr. Edmonds’ use as a safe means of escape from the building.

Under prevailing law, responsibility and liability for negligence which causes harm to an occupant of a building, in circumstances such as those presented in the instant case, falls upon a party having possession and control of the area where the injury occurred. Williams v. Wolf 169 Pa.Super. 628, 84 A.2d 215 (1951). In light of the factors recited above, we cannot hold that there is no genuine issue of fact on the material issue of whether or not the Association was in control of the premises at either the time when the repairs to the structure and its fire escape were made, or at the time when the fatal fire occurred. At the latter time, while the Association permitted the Kings and the Dorsetts to continue to enjoy some control with regard to the building, it may be reasonably inferred from the record that the Association also had some degree of control. Contrary to the arguments submitted to our Court by the Association on these appeals, it would not be reasonable to hold conclusively that the Association had the mere status of a vendor of the property at the time when the fire occurred. The Association had perfected ejectment proceedings against the buyers a year prior to the fire, and claimed insurance proceeds after the fire, on the basis of an assertion of exclusive rights in the property.

Suggestions regarding the Association’s control of the property are evident. Accordingly, the lower court erred in granting summary judgment in favor of the Association.

The orders entering summary judgment are reversed, the judgments entered in both appeals are vacated, and the cases are remanded for further proceedings. Jurisdiction is not retained.

      . The Kings separately purchased the tavern part of the building.


author: CERCONE, Judge: BROSKY, Judge,

text:
    524 A.2d 1375
    COMMONWEALTH of Pennsylvania v. Shelby Scott ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed April 28, 1987.

      Stanton D. Levenson, Pittsburgh, for appellant.
    John L. Brown, Jr., Assistant District Attorney, Freedom, for Com., appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered on July 2, 1986 after a jury convicted appellant, Shelby Scott Adams, of delivery of marijuana and of conspiracy to deliver marijuana. Post-trial motions were denied and appellant was sentenced to one and one-half (DA) to five (5) years imprisonment and to pay a fine in the amount of $25,000.00.

Appellant raises the following two issues on appeal: (1) whether a valid consensual wiretapping pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701 et seq., requires that consent be given prior to each intercepted communication; and (2) whether statements made by the Commonwealth’s attorney in his summation constituted impermissible prosecutorial misconduct. The trial court answered both of these inquiries in the negative and we affirm its order based on those findings.

From 1980 to 1984, appellant was involved with John Maruca and another co-conspirator, in an ongoing conspiracy to buy, sell and distribute marijuana. Appellant was operating out of St. Petersburg, Florida, Maruca was in Beaver, Pennsylvania, and the third conspirator was in State College, Pennsylvania. In February, 1984, Mr. Maruca was arrested on drug-related charges. Pursuant to plea bargain negotiations an agreement was reached whereby Maruca agreed to plead guilty to one count of conspiracy and to cooperate with agents of the Office of the Attorney General of Pennsylvania in its effort to gather evidence against his cohorts. Maruca’s cooperation was to be in the form of consensual wiretapping. In return, the Commonwealth promised to recommend to the court that Maruca receive a probationary sentence.

The Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5726, in general, makes criminal the willful interception of any wire or oral communication. Id., § 5703(1). However, the Act contains an exception at § 5704 which provides that it shall not be unlawful for:

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
* * * * * *
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; ...

In compliance with § 5704(2)(ii), Deputy Attorney General Joseph Peters was properly designated, in writing, by the Attorney General to approve the use of consensual electronic surveillance. Peters initially conducted a personal interview with Maruca to determine if Maruéa had voluntarily given his consent to the use of an electronic phone tap. After the personal interview, which satisfied Peters that Maruca’s consent was voluntary a written consent form was completed and executed by Maruca. This form established a ten day time period during which the Bureau of Narcotics Investigation and Drug Control would make electronic interceptions. All interceptions that would occur during the particular ten day period were authorized and consented to in advance. When the ten days expired, the Deputy Attorney General interviewed Maruca on the telephone to determine the voluntariness of his consent to a second ten day period of interceptions. After the interview, Maruca executed a second memorandum of consent form. This procedure was repeated until Maruca had signed six consent forms authorizing interceptions during six ten day inclusive time periods. The interceptions yielded tape recordings of the five conversations which the Commonwealth played at trial. Appellant’s pretrial motion to suppress the tape recorded conversations was denied.

The appellant contends that suppression was required because Maruca’s consent was not obtained prior to the interception of each and every taped conversation. This claim challenges the validity of blanket consents whereby an informant can consent, in advance, to more than one interception. The primary weakness in appellant’s position is that nowhere does he allege that Maruca’s consent was, at any time, coerced or involuntary. Maruca’s testimony at the suppression hearing not only shows that he voluntarily signed each memorandum of consent, but also that he was aware of his right to withdraw his consent at any time. Each time he purposely engaged one of his conspirators in conversation, knowing that the conversation was being taped, he did so of his own free will.

Therefore, appellant’s argument becomes one of technical statutory construction. He relies, as sole support, on the unreported Common Pleas Court opinion in Commonwealth v. Wintrode and Clark, Court of Common Pleas, Erie County, Criminal Division, No. 1035, 1228 and 1347 of 1983, aff'd in part and rev’d in part on other grounds, 349 Pa.Superior Ct. 255, 502 A.2d 1375 (1986). The Superior Court, on review of that case, did not reach the issue here in question, finding that the informant was subject to pressure which had the effect of overbearing his will, thereby rendering his consent coerced and invalid. As the issue in contention is not the validity of Maruca’s consent but rather, whether he gave his express consent often enough, the Superior Court decision in Clark provides little guidance. Insofar as appellant bases his argument on the holding and reasoning given by the trial court in Clark, we turn our attention to that trial court opinion.

The trial court in Clark held that consent must be obtained prior to the interception of each communication, and each communication not so consented to must be suppressed. The primary reason for so holding was the court’s observation that § 5704(2)(ii) “speaks in terms of the singular” where it states that electronic surveillance is permissible where “... one of the parties to the communication has given prior consent to such interception.” The trial court compares this language to the plural reference contained in § 5712 (applying to non-consensual, court ordered interception) which provides, “... no order entered under this section shall authorize the interception of wire or oral communications for a period exceeding 20 days.” Based upon the above-quoted language, the trial court concluded that a party can only give consent for the interception of one conversation at a time.

This conclusion is belied by the rule of statutory construction and interpretation found at 1 Pa.C.S.A. § 1902 which states in relevant part:

§ 1902. Number; gender; tense
The singular shall include the plural, and the plural, the singular.

Therefore, the trial court in Clark was not free to attach such significance to the presence or absence of an “s” at the end of the word “communication.” Furthermore, statutory words and phrases are to be construed according to rules of grammar and according to their common and approved usage. 1 Pa.C.S.A. § 1903. In the English language plural nouns are often expressed by a word that remains grammatically singular. The word “communication” can readily refer to one brief conversation or just as easily to conversations held over the course of a lifetime. Therefore, we find the trial court’s analysis in the Clark case unpersuasive.

In cases involving consent surveillance the only litigable issue, as a general rule, is whether the consenting party gave valid consent to have his conversation overheard. J. Carr, The Law of Electronic Surveillance § 3.5(d), at 3-83 (1986). The essential concern is to defeat the effect and deter the use of pressure initiated by the police for the purposes of overbearing the will of the consenting party. See Commonwealth v. Clark, supra, 349 Pa.Superior Ct. at 263, 502 A.2d at 1379. There is no statutory requirement that consent be authorized prior to every conversation nor does § 5704(2)(ii) set forth a specific length of time during which a consent remains viable. All that is required is that the informant acts consensually, that his consent is voluntary, and that the informant acts under the direction of an investigative or law enforcement officer to intercept oral communications involving suspected criminal activities. Commonwealth v. Rodriquez, 356 Pa.Superior Ct. 543, 515 A.2d 27 (1986).

We note that § 5712(b), which applies to non-consensual, court ordered interception, provides that no order shall authorize the interception of wire or oral communications for any period exceeding twenty days. Since surveillance conducted with the consent of a party to the conversation is not subject to the exacting standards of authorization required for non-consensual surveillance, Commonwealth v. Checca, 341 Pa. Superior Ct. 480, 491 A.2d 1358 (1985), we find that the written consent forms authorizing electronic surveillance for ten day periods, adequately safeguarded the protections to which all involved parties were entitled.

We believe that a person who has not been the subject of any threats or coercion is permitted to consent in advance to the recording of more than one conversation. Furthermore, where the informant is cognizant of his right to withdraw his consent, yet he chooses to go ahead with a conversation fully aware that law enforcement officials are listening, we perceive no danger to the legislature’s concern that consent to electronic surveillance be voluntary. Our holding should not be interpreted to mean that once valid consent has been given, it remains in effect for as long as the informant engages in conversations which he knows are being taped; rather, by this Opinion, we uphold as consistent with the Pennsylvania Wiretap Act, the procedure implemented by the Office of the Attorney General in this case, i.e., the consistent interviewing of the informant to ensure that his consent was being given voluntarily and the use of memorandums of consent which authorized interceptions for ten day periods. We hold that the Wiretapping and Electronic Surveillance Control Act does not require that consent be given prior to each recorded communication.

We find that the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those factual findings. See Commonwealth v. Reddix, 355 Pa.Superior Ct. 514, 513 A.2d 1041 (1986). Accordingly, the trial court’s denial of appellant’s motion to suppress is affirmed.

Appellant’s second and final argument is that the trial court erred in refusing his motion for mistrial on the grounds that statements made by the Commonwealth’s attorney in his summation constituted impermissible prosecutorial misconduct. We find that the remarks in question did not deny appellant a fair trial and accordingly affirm.

In his closing argument, the district attorney made the following allegedly objectionable statements.

This was a business that was organized by Latshaw and Adams. They went on for years that way. Adams would ship to Latshaw. Latshaw would then ship to Beaver County. Neither of these individuals hardly ever visited Beaver County except to pick up the money from the citizens of Beaver County. Most of the time they didn’t bother doing that. They had it sent out to them or had people come to them, but they were taking the money out of Beaver County. They weren’t even part of this. They didn’t even have to see what was being caused by this massive influx of drugs that they were sending to us.

In response to trial counsel’s motion for mistrial, the trial judge included in his jury instructions a cautionary reminder that the law

applies to all persons throughout our Commonwealth, whether they be Beaver County residents or not or whether they are not citizens of this country. Our law and its protections apply to all persons equally. You should not be prejudiced against either of the defendants merely because they are nonresidents of Beaver County.

Nothwithstanding the court’s curative instructions, appellant alleges that the prosecutor’s arguments were an invitation to convict appellant merely because he resided outside of Beaver County and was taking money from the citizens of Beaver County.

In Pennsylvania, the law is clear that comments by the district attorney do not constitute reversible error “unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they would not weigh the evidence objectively and render a true verdict.” Commonwealth v. Van Cliff, 483 Pa. 576, 582, 397 A.2d 1173, 1176 (1979); Commonwealth v. Lacy, 324 Pa. Superior Ct. 379, 383, 471 A.2d 888, 890-91 (1984). Furthermore, we recognize that:

Whether this standard has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion.

Commonwealth v. Brown, 332 Pa. Superior Ct. 35, 45, 480 A.2d 1171, 1176-77 (1984) quoting Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

Evaluating the prosecutor’s remarks in the context in which they occurred, coupled with the curative instructions of the court, see Commonwealth v. Lacy, supra 324 Pa.Superior Ct. at 384, 471 A.2d at 891, we find that these remarks were not so inflammatory and prejudicial as to require a new trial.

Judgment of sentence is affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result which has been reached by the majority. I do not dispute the majority’s resolution of either issue on the merits. I write separately only to indicate my position that the second contention on appeal pertaining to prosecutorial misconduct has not been properly preserved below.

The procedure for objecting to allegedly improper remarks, so as to preserve the objection as an assignment of error for purposes of post-trial motions and appeal, is well established in Pennsylvania. The complaining counsel must call the court’s attention to the objectionable language by requesting the withdrawal of a juror, or, in the alternative, a remedial instruction to the jury. If the court elects to give a remedial instruction, and counsel still feels that the taint created by the improper remarks has not been removed, he must then renew his objection, and again request the withdrawal of a juror; he cannot “by his silence, be permitted to leave the impression that he is satisfied with the court’s action in the premises, and, after the rendition of an adverse verdict, have the verdict set aside, or the judgment reversed by the appellate court.” Libengood v. Pennsylvania R. Co., 358 Pa. 7, 11, 55 A.2d 756, 758 (1947); also see Springer v. County of Allegheny, 401 Pa. 557, 165 A.2d 383 (1960) and Commonwealth v. Rough, 275 Pa.Super. 50, 61 n. 5, 418 A.2d 605, 611 n. 5 (1980).

The record below reveals that counsel for appellant did not object to the curative remarks included in the trial court’s jury instructions as insufficient to cure the prejudice created by the prosecutor’s allegedly objectionable statements. Moreover, the trial court’s decision to address the merits of this issue in its opinion does not excuse the failure of counsel to make the appropriate objection. This court has held that the failure to properly preserve an issue for purposes of appellate review is not excused where the trial court has chosen to render a decision on the merits anyway. See Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983).

Hence, I would hold that appellant’s second contention on appeal has been waived, despite the trial court’s decision to address the merits of the issue in its opinion.

      . Appellant concedes that every interception occurred during a period of time when one of the written consent forms was in effect.

      . Some of the tape recordings were obtained through the use of the telephone tap and some through the use of a body recorder.

      . A person’s consent is not rendered involuntary because his cooperation has been obtained in return for a promise of lenient treatment, or because the motivations for it were altruistic or self-seeking. Commonwealth v. Clark, 349 Pa.Superior Ct. 255, 502 A.2d 1375 (1985).

      . In interpreting an analogous federal statute, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520, the United States District Court of Pennsylvania also concluded that where a series of calls is being made, it is not necessary to request consent from the informant for each call separately. United States v. Baynes, 400 F.Supp. 285 (E.D.Pa.1975), aff’d mem., 517 F.2d 1399 (3rd Cir.1975). The federal statute provides:
      It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
      18 U.S.C. § 2511(2)(c).


author: MONTEMURO, Judge:

text:
    524 A.2d 1380
    Jonathan KORN, Appellant, v. MARVIN FIVES FOOD EQUIPMENT CORPORATION, Cleveland Range, Inc., Foxcroft Square Pavilion, Inc., t/a Benjamin Fox Pavilion a/k/a Foxcroft Square Company and Norman Goldstein, Appellees.
    Superior Court of Pennsylvania.
    Argued March 12, 1987.
    Filed April 23, 1987.

      Larry Glass, Philadelphia, for appellant.
    Anne Matchulet, Philadelphia, for Marvin Fives, appellee.
    Robert E. Hall, Philadelphia, for Cleveland, appellee.
    Before McEWEN, MONTEMURO and ROBERTS, JJ.
   MONTEMURO, Judge:

Jonathan Korn, plaintiff/appellant, takes this appeal from the Order transferring his cause of action from Philadelphia to Montgomery County on the ground of forum non conveniens.

Plaintiff/appellant filed his complaint in the Philadelphia Court of Common Pleas on March 26, 1986 against Marvin Fives Food Equipment Corp., Cleveland Range, Inc. (hereinafter Cleveland Range), Foxcroft Square Pavilion, Inc., t/a Benjamin Fox Pavilion, a/k/a Foxcroft Square Company (hereinafter Foxcroft) and Norman Goldstein. Marvin Fives is a Pennsylvania corporation with its office in Philadelphia; Norman Goldstein is a Philadelphia resident; Fox-croft is a Pennsylvania corporation with its office in Jenkintown, Montgomery County and Cleveland Range, Inc., is an Ohio corporation doing business in Pennsylvania.

Plaintiff/appellant alleged in his complaint that Marvin Fives sold a food steamer, manufactured by Cleveland Range, to the Renaissance Restaurant located at the Fox-croft premises in Jenkintown, Montgomery County. Norman Goldstein, it is alleged, installed the steamer. On May 9, 1984, the steamer exploded and plaintiff/appellant, an employee at the restaurant, was seriously injured. Plaintiff/appellant’s cause of action is founded on product liability.

On March 13, 1986, approximately two weeks before plaintiff/appellant filed his lawsuit in Philadelphia, a lawsuit was filed in the Court of Common Pleas of Montgomery County in connection with the same accident that is the subject matter of plaintiff/appellant’s lawsuit in Philadelphia County. The plaintiffs in the Montgomery County action are: Gerald Nabit, Gary Nabit, Renaissance at the Pavilion, Inc., and Switchville Tavern, Inc., and the named defendants are: Marvin Fives Food Equipment Corp., Fox-croft Square Apartment, Inc., Foxcroft Square Pavilion, Inc., Foxcroft Square Company, a Partnership, Norman Goldstein and Cleveland Range Company, Inc. The plaintiffs in the Montgomery County case allege property damage as well as personal injuries arising out of the explosion of the food steamer at the Renaissance Restaurant.

Defendant/appellee, Cleveland Range, filed a motion to transfer under Pa.R.C.P. 1006(d)(1), requesting a transfer of the action to Montgomery County for the convenience of the parties and witnesses. Subsequently, the motion to transfer was joined, by the other defendants, with the exception of Norman Goldstein. The motion to transfer was granted and plaintiff/appellant’s timely filed motion for reconsideration of the transfer Order was denied. This appeal followed.

Plaintiff/appellant has presented essentially only one claim for our review. He claims that because defendants/appellees presented no evidence upon which the trial court could have concluded that the parties and witnesses would be inconvenienced if the action remained in Philadelphia, the order transferring the action to Montgomery County solely on the basis of the motion and answer and the existence of a similar action in Montgomery County constituted an abuse of discretion. We agree and therefore reverse.

In a recently filed unanimous panel opinion of this court, Satterlee Petty v. Suburban General Hospital, et al, — Pa.Super. —, 525 A.2d 1230, 1231-1233 (1987), we set forth certain legal principles which are just as applicable here:

Pa.R.C.P. 1006(d)(1) provides: ‘For the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.’
In Reyno v. Piper Aircraft Co., 630 F.2d 149, 158 (3d Cir.1980), the court stated that Pennsylvania cases dealing with forum non conveniens have mirrored federal law in all essential respects.
Opinions of the Pennsylvania Supreme Court have adopted almost verbatim the factors to be considered that are set out in Gilbert and Koster: scope of trial court discretion, and standard of appellate review. See Rini v. N. Y. Central R. Co., 429 Pa. 235, 240 A.2d 372 (1968); Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). The section of the Restatement regarding forum non conveniens, on which the Pennsylvania Courts also rely, in turn relies on their major federal cases. See Restatement (2d) Conflict of Laws § 84 note (1971).

Id. at n. 20. The Reyno court, relying on Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) and Gulf Oil Corp. v. Gilbert, 330 U.S. [501] at 507, 67 S.Ct. [839] at 842 [91 L.Ed. 1055 (1947)], also said:

A plaintiff is generally conceded the choice of forum so long as the requirements of personal and subject matter jurisdiction, as well as venue, are satisfied. He should not be deprived of the advantages presumed to come from that choice unless the defendant clearly adduces facts that “either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.” A court must balance these private and public interest factors, “[b]ut unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Id. at 159.

When exercising its discretion on a motion to transfer for the convenience of the parties and witnesses, the court should consider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be a question as to the enforceability of a judgment if one is obtained. The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law. Gilbert, 330 U.S. at 508-09, 67 S.Ct. at 843; Rini v. N.Y. Central R. Co., 429 Pa. 235, at 239, 240 A.2d 372 at 374, (1968); Plum v. Tampax, Inc., 399 Pa. 553, 560-61, 160 A.2d 549, 553 (1960).

The rule, Pa.R.C.P. 1006(d)(1), vests the trial judge with considerable discretion in determining whether or not to grant a petition for change of venue and the standard of review is one of abuse of discretion. We will only disturb the trial judge’s order if we find an abuse of discretion. Walker v. Ohio River Co., 416 Pa. 149, 205 A.2d 43 (1964); Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985); Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984); Fox v. Pennsylvania Power and Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983); Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465 (1976).

Although the standard of review is one of discretion, “if the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated. Discretion must be exercised within the applicable standards. The district court’s wide discretion may not serve the defendants as a burden shifting device on appeal from an order in their favor.” Reyno v. Piper Aircraft Co., 630 F.2d [149] at 160 [3rd Cir.1980] (citations omitted).

“A change of venue 'is not granted lightly or without real necessity’ and the applicant bears the burden of proving that the change of venue is necessary.” Pennsylvania Power & Light v. Gulf Oil, 270 Pa.Super. 514, 529, 411 A.2d 1203, 1211 (1979).

In Hosiery Corporation of America v. Rich, 327 Pa. Super. 472, 475, 476 A.2d 50, 51, this court held that “a proper procedure under Rule 1006(d)(1) necessarily implicates the requirements for petition and answer set forth in Pa.R.C.P. Rules 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact.” The trial court must find that the transfer is more convenient for both parties to the action or for the witnesses. Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (emphasis in original).

We note that in the case sub judice, Cleveland Range also labeled its request for transfer a ''Motion” rather than a ''Petition.”

Applying the above principles to this case, we are compelled to conclude that the trial court abused its discretion in transferring the action to Montgomery county.

In its motion to transfer, defendant/appellee Cleveland Range alleged in pertinent part that: the vast majority of the witnesses in both the Philadelphia Lawsuit and the Montgomery County law suit reside in Montgomery County; that both lawsuits concern common issues of fact and of law with respect to negligence and strict liability; that both lawsuits arise from the same accident; that Montgomery County is the more convenient forum for the lawsuit begun in Philadelphia; and that each of the four defendants is represented by the same counsel in both lawsuits.

Plaintiff/appellant in his answer to transfer motion denied that the vast majority of witnesses reside in Montgomery County and that the more convenient forum was Montgomery County. Plaintiff/appellant also alleged in his answer that although there were similarities in the two complaints, there were also a great many differences. Further plaintiff/appellant alleged that Philadelphia was the more convenient forum and that there should be no consolidation with the Montgomery County action. Plaintiff/appellant, in New Matter, alleged that discovery was necessary for the motion to be decided; that all the individual plaintiffs reside in Philadelphia; that the movants’ attorneys are located in Center City Philadelphia along with plaintiff/appellant’s attorney; that the movants’ expert witness is from Cleveland, Ohio; that the accident site is physically closer to the Philadelphia Court of Common Pleas than it is to the Montgomery County Courthouse by nearly 20 minutes travel time; that plaintiff/appellant’s injuries were treated in Philadelphia and that his expert witness is on the border of Philadelphia and Montgomery Counties. Defendant/appellee then denied each and every allegation contained in the new matter.

Contrary to the rule set forth in Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984), the trial court granted the transfer without the taking of evidence by deposition or otherwise on disputed issues of fact. Nor did the trial court make a finding that the transfer was more convenient for both parties to the action or their witnesses. See Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (Emphasis in original).

We refuse to sanction the transfer of a cause of action premised on the convenience of the parties or witnesses on the mere allegation, specifically denied by plaintiff/appellant, of the petitioner. Since the trial court had no evidence of convenience of parties or witnesses, it must have relied solely on the fact that there was a pending action in Montgomery County "... which invokes substantially the same claim____” (Trial Court Opinion at 3). We find no basis in the law for such a transfer; indeed, if that were the law, the paramount rule that “a plaintiffs choice of forum is entitled to weighty consideration and should not be lightly disturbed,” Fox v. Pennsylvania Power and Light Company, supra, would be effectively negated whenever another plaintiff filed a complaint on facts arising out of the same incident in a different county. Such a result would be ludicrous.

In Reyno v. Piper Aircraft Co., 630 F.2d 149, 158 (3rd Cir.1980), we find further instruction:

The party seeking the transfer must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. The emphasis must be on this showing rather than on numbers. One key witness may outweigh a great number of less important witnesses. If a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be the application for transfer will be denied.

Id. at 160, 161 (citations omitted). Here, the trial judge without any discussion of such a showing and without any reference to the elements which affect the private interests of the litigants or the public interest, merely granted the motion to transfer on the basis of the pleadings and the various memoranda of law in support of and opposed to the transfer.

Defendant/appellee, Cleveland Range, had the opportunity to prove by competent evidence that a transfer of the cause of action from Philadelphia County to Montgomery County would best serve the convenience of the parties or witnesses. It failed completely. That being so, the trial judge had no reliable information to use in weighing the convenience of the parties and witnesses, and consequently his grant of the transfer motion was an abuse of discretion. We reverse.

Order reversed. Jurisdiction is relinquished.

      . We note that Foxcroft Square Apartment, Inc., is not a defendant in the Philadelphia lawsuit.

      . Cleveland Range also requested the trial court to consolidate the two actions, which the court quite properly we believe, refused to do. The court’s denial of the request to consolidate has not been appealed and is not before us.

      . An order changing venue, although interlocutory, is appealable. Pa.R.A.P. 311(c) provides: "An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles." Consequently, the order transferring venue is properly before this court for our review.

        Koster, 330 U.S. at 524, 67 S.Ct. at 832.

        Gilbert, 330 U.S. at 508, 67 S.Ct. at 843.

       Although the application for change of venue in Pennsylvania Power & Light v. Gulf Oil was brought pursuant to the provision of the Act of March 30, 1875, P.L. 35, §§ 1-3, as amended, Act of March 18, 1909, P.L. 37, § 1, 12 P.S. §§ 111-113 (1953), repealed June 27, 1980, see Judiciary Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, 42 Pa.C.S. §§ 20002(a) [657], 20004(b), more particularly, the fifth subsection of section 1 and subsections I and III of section 3, and replaced by section 5106 of the Judicial Code, No. 142, 42 Pa.C.S. 5106, we perceive no reason to say that the law should be different in petitions for transfer under Pa.R.C.P. 1006(d)(1). Since plaintiffs choice of forum is of paramount consideration in a 1006(d)(1) petition, it is only logical that defendant carry the burden of proof. We note further, that with the repeal of the Act of March 30, 1875, the rules of procedure were amended with the addition of Rule 1006(d)(2), which provides for a change of venue ‘where, upon petition and hearing thereon, the court finds that a fair and impartial trial cannot be held in the county for the reasons stated of record.’ See Explanatory Comments 1982 to Pa.R.C.P. 1006.

       The defendants/appellees improperly labeled their request for a transfer as a "motion” rather than a "petition”, as called for in the rule. We shall nevertheless construe it as a petition.


author: TAMILIA, Judge: DEL SOLE, Judge,

text:
    525 A.2d 367
    Phillip B. ROBINSON, Appellant, v. Sandra ROBINSON, Steven M. Kramer, Esquire and Robert Jay Vedatsky, Esquire.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed March 4, 1987.
    Reargument Denied May 15, 1987.

      Jerome Lipman, Philadelphia, for appellant.
    Michael R. Needle, Philadelphia, for Vedatsky, appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

In May of 1981, appellee instituted two separate actions against her former husband/appellant. One action in the U.S. District Court for the Eastern District of Pennsylvania alleged claims for rape, assault, burglary, theft, fraud, breach of fiduciary duty, intentional infliction of emotional distress and breach of a settlement agreement. The other action in the Superior Court of New Jersey sought to set aside a settlement agreement.

In August of 1981, the federal court denied a motion to dismiss the tort claims and on November 9, 1981, granted appellee’s motion for a voluntary nonsuit dismissing the claims without prejudice to appellee’s right to renew them in the New Jersey action.

Appellant, in December of 1981, brought an action alleging wrongful use of civil proceedings. Preliminary objections were granted on November 29, 1982 with the court dismissing the claim while holding that the voluntary non-suit “neither constituted a judgment in favor of [appellant] nor represented a termination of the Federal Court action consistent with his innocence.” Robinson v. Robinson, 28 D & C3d 54, 58 (1982). The court went on to state:

Indeed the federal court’s specific refusal to dismiss the claims with prejudice reflects that these claims have not been determined and are subject to further adjudication in an appropriate forum. The instant action therefore, is premature, pending final resolution of the claims in the New Jersey action.

Robinson, supra at 58.

The New Jersey action concluded on January 22, 1985 with the decision rendered by the trial judge on April 30, 1985. The claims formerly made by appellee in her federal action were not discussed by the court because the pleadings were never amended to raise those issues.

Appellant, in August 1985, filed a petition seeking to amend his complaint to include a count for malicious use of civil proceedings, contending the New Jersey action resulted in the federal action being terminated in his favor. The court denied the petition finding the proceedings at issue did not terminate in favor of appellant as required under 42 Pa.C.S.A. §§ 8351-8354. We do not agree and reverse the holding of the lower court.

Appellees contend that appellant should have appealed from the November 29, 1982 Order granting appellees’ preliminary objections and dismissing the claim for wrongful use of civil proceedings and failure to do so precludes bringing this appeal. Alternatively, appellees maintain the Order presently appealed from is interlocutory and thus this Court lacks jurisdiction to hear this appeal.

Both issues raised involve an analysis of what constitutes a final appealable Order. Initially, we agree with the court in the present action which stated that the Order and Opinion of November 29, 1982 “did not foreclose plaintiff [appellant] from filing a petition to amend after the conclusion of the New Jersey action.” (Slip Op. White, J., 12/17/85, p. 2). This conclusion is supported by a reading of the Opinion in Robinson, supra, where the court specifically states that the action was premature. The accompanying Order did not dismiss the wrongful prosecution claim with prejudice so as to put appellant entirely out of court on the cause of action and appellant’s subsequent attempt to amend the pleading, following the conclusion of the New Jersey litigation, was proper.

The question of whether the present Order denying the petition to amend the complaint is interlocutory is completely governed by the findings in Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 80-81, 500 A.2d 163, 166-67 (1985). The pertinent portions of that Opinion are quoted verbatim:

The first issue to be resolved is whether appellants are properly before this Court. An appeal will lie only from a final order unless otherwise permitted by statute. “A final order is usually one which ends the litigation or, alternatively, disposes of the entire case____ ‘Conversely, an order is interlocutory and not final unless it effectively puts the litigant “out of court.” ’ ” Praisner v. Stocker, 313 Pa.Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also: Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa.C.S.A § 742. ‘As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.’ Prainser v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. This is so because in most such instances ‘the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.’ Id., 313 Pa.Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is ‘out of court’ with respect thereto. Id., 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260.
The dismissal of Count No. 3 was final. Appellants are out of court on their claim for damages because of Century’s alleged interferences with Cloverleaf s negotiations with third party, potential buyers. Therefore, we will review the averments in Count No. 3 to determine whether they are sufficient to state a cause of action.

The existing counts in the complaint are for conversion and defamation, each separate causes of action and independent from wrongful use of civil proceedings. Unlike the situation following the dismissal of the complaint in 1982, where the pending New Jersey decision prompted the court to characterize the action as premature, here, the court concluded that even upon resolution of the New Jersey action, appellant did not have the litigation terminated in his favor as required by the statute. Appellant is thus precluded from pursuing the merits of this claim and the Order is properly appealable.

The merits of the court’s decision must thus be addressed and we conclude that the court improperly determined that the prior litigation did not terminate in appellant’s favor as required by the statute.

42 Pa.C.S.A. § 8351 provides:

§ 8351. Wrongful use of civil proceedings.
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.
1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days.

The sole basis for the court’s denial of appellant’s petition to amend was that appellant did not show that either the federal action or the New Jersey action terminated in his favor as required by section (a)(2) of the statute.

We agree, that for the purpose of applying the statute, the federal action did not terminate in appellant’s favor because appellee was specifically allowed to raise the claims in the contemporaneous New Jersey action. We think the court erred, however, in holding that since appellee chose not to pursue the claims in the New Jersey action and the merits were never litigated, there was no termination in favor of appellant.

In the case of Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962), the court, in ruling on a common law claim of malicious prosecution, held that although one of the prerequisites to such an action is that the criminal prosecution upon which it is based be terminated favorably to the party seeking damages, this did not require that it be terminated on the merits. If the charges were abandoned or withdrawn by the prosecutor this was sufficient to satisfy the element of prior favorable termination. Woodyatt, supra, 408 Pa. at 259, 182 A.2d at 501. Citations ommitted.

In Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984), this Court, noting that the tort of malicious use of process has been codified at 42 Pa.C.S.A. §§ 8351-54, held that the favorable termination element was satisfied when the parties who filed a caveat to the probate of a will agreed to voluntarily dismiss their claims.

Shaffer also discussed the fact that Pennsylvania law was now in conformity with the Restatement (Second) of Torts § 674. A reading of that section and the comments indicates that civil proceedings may be considered terminated in favor of a person against whom they are brought by withdrawal of proceedings. This general rule is qualified by reference to sections 660-661 which apply the rule that termination, other than by acquittal, is not sufficient to meet the requirement of a cause of action when it is the result of compromise, misconduct by the accused for the purpose of preventing a proper trial, abandonment out of mercy requested or accepted by the accused or when new proceedings based on the same offense have been instituted and have not been terminated in favor of the accused. Situations where abandonment is due to the impossibility of bringing the accused to trial also are distinguished.

Although Woodyatt dealt with criminal proceedings, the rationale applied is still appropriate when dealing with a wrongful use of civil proceedings action. Coupled with the holding in Shaffer and a review of § 674 of the Restatement (Second) of Torts, we find that the termination of the New Jersey action, in which appellee had the opportunity to raise the claims made in the federal action and did not do so, must be considered a favorable termination for appellant under the statute. Any other result would allow a party to initiate suit and then withdraw or abandon the claims before trial so as to escape potential liability. The statute provides protection against such action by imposing liability for the procurement, initiation or continuation of civil proceedings in a grossly negligent manner or without probable cause with improper purposes. Although favorable termination is called for, there is no requirement that it be based upon the merits and to impose such a requirement would lead to unjust results as set forth above.

In the present case, appellant is attempting to impose liability on appellee for initiating the action in federal court. The courts determination that the action was never terminated favorably to appellant precludes him from pursuing the action even though the action was not pursued because of a decision by appellee. It is not argued that appellees decision was the result of a compromise between the parties nor are other circumstances shown which would qualify the rule that withdrawal is sufficient to constitute favorable termination. Under these circumstances we must find that appellant has met the favorable termination requirement.

We are not addressing the merits of appellant’s underlying claim, and he will have the burden of establishing the elements required in 42 Pa.C.S.A. § 8354, which provides:

§ 8354. Burden of proof
In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:
(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).
1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days.

At that time, appellee will be able to raise any defenses she may have to the claim of wrongful prosecution.

The Order appealed from is reversed and the case remanded to allow an amended pleading to include a count for wrongful use of civil proceedings.

Order reversed and case remanded.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

With the greatest deference to my colleagues, I must dissent from the opinion of the majority in this case.

This is an appeal from an order denying Appellant’s petition to amend his complaint which sought to include a count for wrongful use of civil proceedings.

The procedural history of this case is complex. The underlying action was initiated by Appellant’s filing a complaint containing claims for conspiracy, abuse of process and malicous prosecution against Appellees. These claims were precipitated by Appellee, Sandra Robinson’s earlier commencement of action against Appellant in a New Jersey state court and the United States District Court for the Eastern District in Pennsylvania. The Appellee filed preliminary objections to Appellant’s complaint arguing that the dismissal of the Federal Court action without prejudice to Sandra Robinson’s right to renew her claims in the New Jersey action did not satisfy the prerequisites for Appellant’s claim of wrongful use of civil proceedings arising out of the Federal Court action. Accepting this argument, the court granted the preliminary objections and also ruled that Appellant was to be granted the right to amend his complaint with respect to the causes of action for defamation and conversion. Appropriate amendments were made by Appellant and the court dismissed Appellee’s preliminary objections to the amended complaint. Thereafter, the New Jersey action was ultimately concluded. Appellant again sought to amend his complaint to include a count for wrongful use of civil proceedings. The trial court again ruled that there was no termination in Appellant’s favor, a prerequisite to the claim he wished to make, and denied his petition to amend. This appeal followed.

I dissent from the majority because I believe that an order denying leave to amend complaint is interlocutory and not appealable and for that reason the appeal must be quashed.

First, I believe that the majority opinion confuses the difference between the denial of a petition to amend a complaint and the granting of preliminary objections dismissing certain counts of a plaintiff’s complaint. Generally, such dismissal is not appealable but in some rare cases an appeal lies.

The majority’s analysis in relying on Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 80-81, 500 A.2d 163, 166-167 (1985) when considered in light of the factual background of this case, serves to defeat the argument advanced.

On November 29, 1982, the trial court entered an order which states as follows.

And now, this 29th day of November, 1982, it is hereby ordered and decreed that:
(1) Plaintiff’s petition for reconsideration of this court’s January 29, 1982 order is denied;
(2) Count I of the defendant’s preliminary objections is granted, and the plaintiff’s claim for conspiracy and malicious prosecution is dismissed;
(3) Count II of defendant’s preliminary objections is granted and plaintiff’s claim for conspiracy and abuse of process is dismissed; and
(4) Plaintiff is granted twenty (20) days from notice hereof to file an amended complaint regarding his claims of defamation and conversion.

Obviously, paragraphs (2) and (3) finally dismissed certain counts of the plaintiff’s complaint. The majority in its opinion (page 571) states:

“Initially, we agree with the court in the present action which stated that the order and opinion of November 29, 1982, ‘did not foreclose plaintiff [appellant] from filing a petition to amend after the conclusion of the New Jersey action.’ ”

The difficulty with this analysis is twofold.

First, the trial judge entered the order of November 29, 1982 specifically and categorically dismissing the counts for conspiracy and malicious prosecution and for conspiracy and abuse of process. The trial court did not grant the plaintiff leave to amend his complaint for those counts. Further, the trial judge’s opinion accompanying the November 29, 1982 order confirms the fact that leave to amend dealt only with defamation and conversion. In a detailed analysis, the Honorable Abraham J. Gafni concluded in November of 1982 that the allowance of a voluntary non-suit in a prior action did not constitute a judgment in favor of the plaintiff nor represented a termination consistent with Appellant’s innocence. These are the same issues that are now being raised and already decided.

If the majority’s analysis is correct, the order of November 29, 1982 would have been a “final order” and should have been appealed. There is nothing in the order or opinion accompanying the order which granted the plaintiff leave to file an amended complaint on the counts dismissed. Conversely, the analysis of the trial court was such that no amendment could be made that would satisfy the pleading requirements since the claim has been voluntarily dismissed.

Our appellate courts have held that once a final order is entered, it must be appealed or the right of review is lost. Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986). Here the dismissal of counts I and II of the Appellant’s complaint on November 29, 1982 was a final appealable order. Failing to appeal ends the matter.

More importantly, however, the action of the trial judge in this case in his order and opinion dated December 17, 1985 denying the petition to amend, does not preclude the Appellant from filing a separate action. It merely prevents him from including the matter in this case.

The procedural morass that is created by allowing appeals from orders dismissing counts of complaints or appeals from orders denying leave to amend complaints or answers does nothing but frustrate the orderly movement of litigation through the courts.

Certainly, review of the order appealed from in this case could be postponed until the remaining matters have been terminated at the trial level. The failure to allow an amendment to a complaint alleging a “new cause of action” does not put a litigant out of court but merely holds that it cannot be brought in the existing case.

If the majority’s analysis is correct in that the cause of action arose with the voluntarily dismissal of the New Jersey lawsuit, then, a new suit could have been filed. The Appellant is not out of court by denying his petition to amend.

If the majority’s analysis of appealability is correct, then the November 29, 1982 order dismissing the counts without leave to amend was final and appealable and no appeal having been filed it is too late to relitigate the issues at this time.

For these reasons I dissent and would quash the appeal.

      . Actually, the trial court entered its order dismissing the counts of conspiracy and malicious prosecution on January 29, 1982, almost 10 months before the November order which the majority dismissed in its opinion and to which I have responded. That order also did not allow for amendment, therefore, the analysis of finality is the same as dealing with the order of November 29, 1982.

      . I believe that the entire area of “final and appealable orders” which do not end the litigation between the parties should be reviewed. Allowing and reviewing appeals during the course of litigation serves only to delay the matters. In light of Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) I believe where an order in entered in a lawsuit, that does not end all litigation between the parties, it should only be reviewed on immediate appeal if the postponement of review would cause an issue to be irrevocably lost. See PINES Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction (Part 1), 91 Dickenson L.R. 88-91 (1986).