author: POPOVICH, Judge:

text:
    621 A.2d 1009
    COMMONWEALTH of Pennsylvania, Appellant, v. Samuel MYERS, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed Feb. 5, 1993.
    Reargument Denied April 2, 1993.

      Stephen S. Snook, Asst. Dist. Atty., Lewistown, for Com., appellant.
    Michael A. Roselle, Lewistown, for appellee.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   POPOVICH, Judge:

The Commonwealth asks us to review the order of the Court of Common Pleas of Mifflin County granting the defendant/appellee, Samuel Myers, a new trial pursuant to the Post-Conviction Relief Act. We reverse.

On July 19, 1983, the defendant was charged with murder and aggravated assault in the shooting death of one Robert Walters. At the completion of the case, the court instructed the jury that three types of murder were involved: first degree, third degree and voluntary manslaughter. The court explained to the jury, as herein relevant, the elements of the offenses; to-wit:

'In order to find the Defendant guilty of murder of the first degree, you must find that all of the following elements have been established beyond a reasonable doubt: 1. That the Defendant Samuel Myers caused the death of another person, that is, you must find that the death of Bobby Walters would not have occurred but for the Defendant’s act. 2. That the killing was intentional.

A killing is intentional if it was by willful, deliberate, and premeditated. A killing is willful and deliberate if the Defendant consciously decided to kill the victim; and it is premeditated if the Defendant possessed a fully formed intent to kill by the time when he acted even though there need not have been any appreciable amount of time between the timé when the Defendant first conceived the idea of killing'and the time when he acted.

An intentional killing, as I had defined that term for you, may be found from expressed words used by the Defendant or may be implied from words or conduct of the Defendant. And if you find that the Defendant intentionally used a deadly weapon on a vital part of the victim’s body, you my infer from this that the killing was intentional.

# * * * # *

Thus you cannot find the Defendant guilty of first degree murder unless you are satisfied beyond a reasonable doubt that the Defendant was not so intoxicated or drugged at the time that he was incapable of judging his actions and their consequences or incapable of forming a willful, deliberate, and premeditated design to kill.

# * * * * *

Any other murder which is not murder of the first degree is murder of the third degree. In order to find the Defendant guilty of third degree murder, you must find that all of the following elements have been established beyond a reasonable doubt: 1. That the Defendant caused the death of another person. That is, you must find that the death of Bobby Walters would not have occurred but for the Defendant’s act. 2. That the Defendant acted with malice.

Malice consists either of an intent to kill or to inflict great bodily harm or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, any mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life. Malice may be either expressed by the Defendant or implied from his words and conduct. When a deadly weapon is intentionally used against a vital part of the human body, malice may be inferred to exist.

Included in the offense of murder charged in this case is a lesser offense of voluntary manslaughter. A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. You must, therefore, consider whether the Defendant in this case acted while in a state of sudden and intense passion resulting from serious provocation by the individual killed. You must, therefore, consider whether the Defendant in this case acted while in a state of sudden and intense passion resulting from serious provocation.

Passion includes anger, terror, rage, or resentment. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. If a cooling time elapses between the provocation and the killing, the provocation will not reduce murder to voluntary manslaughter.

Consequently, you cannot find the Defendant guilty of murder unless after considering all the evidence, you are satisfied beyond a reasonable doubt that at the time of the alleged killing the Defendant was not acting under a sudden and intense passion resulting from serious provocation by Bobby Walters. However, even if you do not find the Defendant guilty of murder under the instructions I have just given to you, you may nevertheless find him guilty of voluntary manslaughter if you are satisfied beyond a reasonable doubt that without lawful justification he caused the death of Robert Walters.

Reproduced Record at 5a-9a. At the completion of the instructions, neither counsel lodged any objections to the charge as read to the jury. During the course of deliberations, however, the jury requested that the court repeat the defense of alcohol necessary to reduce first degree murder to third degree murder. This was done. Also, the court recited the elements required to prove one guilty of first degree murder. Both counsel were asked, for a second time, if either one desired additional instructions to be given. No such request was made.

Before a verdict was returned, the jury had a second question seeking clarification on the law of first and third degree murder, as well as the drug defense. When the court asked if counsel had any suggestions as to his intention to read the previous instructions on murder of the first degree, third degree and voluntary intoxication as a defense, the prosecutor asked if malice was included as part of the definition of first degree murder or if the court had a separate instruction. This inquiry prompted the following exchange:

THE COURT: I don’t think the word malice is used at all. They don’t use the word malice at all.
[ASSISTANT DISTRICT ATTORNEY]: Isn’t that the first degree instruction?
THE COURT: Nope.
[ASSISTANT DISTRICT ATTORNEY]: I think that’s an important part of the charge.
THE COURT: Nothing about malice in the charge, nothing in the act about malice. It was willful, deliberate, and premeditated.
[ASSISTANT DISTRICT ATTORNEY]: Malice is an instruction on murder as opposed to manslaughter.
THE COURT: Third degree. Malice is not proof of a case in either first two degrees of murder. Malice continues to be an element in the case of murder in the third degree. Now, murder of the third degree that the Defendant acted with malice. Then we give a definition of malice.
[ASSISTANT DISTRICT ATTORNEY]: That’s like the last subparagraph in the instructions, isn’t it?
THE COURT: Right. When Mr. Myers gets here, we’ll so instruct. [Counsel for the Defendant], do you agree with that course?
[COUNSEL FOR THE DEFENDANT]: Sounds fine to me, Your Honor.

Reproduced Record at 19a-20a. For a third time, the court defined the elements necessary to find the defendant guilty of first degree murder, the defense of intoxication and murder of the third degree. Id. at 20a-22a. Thereafter, the jurors found the defendant guilty of first degree murder and a sentence of life imprisonment was imposed after the denial of post-trial motions. Direct appeals were taken to the Superior and Supreme Courts without success.

After the appeals were exhausted, the defendant filed a pro se PCRA petition on December 21, 1989, alleging that:

The Defendant was denied Effective Assistance of Trial Counsel for not Objecting to the Charge of the Court concerning MALICE, which is a necessary element of First Degree Murder and which has to be defined to the Jury, without Malice there can be no First Degree Murder, Commonwealth v. Weinstein, 499 Pa. 106 [451 A.2d 1344] (1982), Malice or Malice Aforethought must be told and explained to the Jury, because without the above there can be no Murder in any degree, Commonwealth v. Waller, 322 Pa.Super. 11 [468 A.2d 1134] (1983). In Commonwealth v. Griffin, 310 Pa.Super. 39, n. 1 [456 A.2d 171] (1983) states, Murder in this Commonwealth is still governed by common law — you must have Malice, and the Commonwealth has to prove this element to sustain a conviction for Murder, See Commonwealth v. Heatherington, 477 Pa. 562 [385 A.2d 338] (1978). The District Attorney on P. 274 of Trial Tr. told the Jury that Malice was an Element of First Degree Murder and that he believed he proved Malice and therefore the Jury should convict the defendant based on Malice and that this was the Law of Pennsylvania. Therefore the Court was required to Charge on Malice or Malice Aforethought. Counsel on P. 305 of Trial Tr. knew of the above, in that Malice had to be Charged, but for some reason failed to request that Malice or Malice Aforethought be Charged. On P. 286 of Trial Tr. the District Attorney again tells the Jury, the defendant should be found guilt [sic] of First Degree Murder based on Malice, when he said the defendant .killed with a HARDNESS OF HEART, which is Malice. Without Malice or Malice Aforethought there can be no Murder, only Manslaughter. According to Pa.S.S.J.I. Nos. 15.2052A and 15.2501A, indicate that Malice must be Explained to the Jury and that Malice is an element of First Degree Murder, just as the Commonwealth told the Jury on P. 274 of Trial Tr. Also see subcommittee note on P. 2 of Pennsylvania Suggested Standard Jury Instruction No. 15.-2501A, in which it states in pertinent part, Malice must be told the [sic ] Jury....
Based on the foregoing facts and case law and statute law, the Court erred in not Explaining Malice or Malice Aforethought, and Counsel was Ineffective for not objecting to this Error under Pa.R.CRIM.P. 1119(B) and Commonwealth v. Griffin, 271 Pa.Super. 228 [412 A.2d 897] (1978). The above Errors of Counsel and the Court denied the defendant a Fair Trial and highly prejudiced him.

See Record at 23-24. Counsel, unassociated with prior counsel, was appointed to represent the defendant.

On March 30,1992, a PCRA hearing was conducted wherein the focus was “whether Tr. Counsel was ineffective for not objecting to the Court’s failure to charge the jury on the issue of malice.” Defendant’s Brief at 1. It was the defendant’s position that trial counsel had no reasonable basis for not objecting to the “malice-less” instruction given that it was “a vital component in making out a first degree murder charge ... [and] the truth determining process was circumvented ... as a consequence thereof----” The PCRA court agreed and awarded a new trial. This appeal followed by the Commonwealth.

Before addressing the merits of the Commonwealth’s claim, we need to decide the appealability of the order since, generally, the award of a new trial is interlocutory. An exception exists, however, when the Commonwealth’s appeal concerns a question of law. See Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619, 621 (1983); Pa.R.App.P. 311(a)(5). In the present matter, we find the Commonwealth’s challenge to be one involving a question of law, i.e., did the jury instruction satisfy the court’s obligation under the law to convey an accurate, clear and proper charge on murder of the first degree so as to exonerate trial counsel from any allegation of ineffectiveness? We believe it did do so.

In assessing trial counsel’s stewardship, we look to a tri-partite test: 1) whether the claim asserted was of arguable merit; 2) whether counsel lacked any reasonable basis for his actions or inactions; and 3) whether the complainant was prejudiced by counsel’s actions or inactions. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

To start with, the fact that the propriety of the jury instruction had not been raised prior to the PCRA petition did not render it waived because that was the first occasion that counsel other than counsel whose effectiveness was being questioned represented the defendant. Thus, the issue was preserved for review. See Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979); Commonwealth v. Knight, 421 Pa.Super. 485, 618 A.2d 442 (1992); Commonwealth v. Stanton, 316 Pa.Super. 397, 463 A.2d 19, 20 (1983); Commonwealth v. Sanders, 299 Pa.Super. 410, 445 A.2d 820 (1982).

We now examine the merits of the Commonwealth’s objection to the grant of a new trial on the ground that the trial court’s charge to the jury was improper. Defendant argues that the trial court erred in failing to charge the jury on the element of malice in relation to the first degree murder charge, and that the jury, therefore, was unable to determine rationally whether he was guilty of first degree murder.

In evaluating the correctness of a jury charge, the charge must be read in its entirety and the general effect of the charge controls. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 953 (1982); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). The portion of the instructions at issue relates, as reproduced supra, to the court’s advising the jury that a first degree murder conviction could be returned provided the Commonwealth established that the defendant caused the death of Robert Walters and that the killing was intentional, i.e., willful, deliberate and premeditated.

Also, the jury was instructed that “intent” could be inferred from the use of a deadly weapon on a vital part of the victim’s body. As for the charge of third degree murder, the elements recounted by the court were identical to those recited for first degree murder save for substituting proof of “malice” for “intent”.

We find that the jury charge, when read as a whole and in light of the applicable law, was proper and did not violate established case law. For example, in Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990), Superior Court was reversed for holding that the evidence was not sufficient to sustain the jury’s verdict of first degree murder; a remand was directed for a new trial on the charge of voluntary manslaughter only. In the course of its ruling, the Supreme Court wrote:

Pursuant to our Crimes Code, “a person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 Pa.C.S.A. § 2501(a). “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a). An intentional killing is defined as “[kjilling by means of poison, or by lying in wait, or by any other kinds of willful, deliberate and premeditated killing.” 18 Pa.C.S.A. § 2501(d). In order to convict a defendant of murder of the first degree, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant has killed another (2) willfully, deliberate ly and with premeditation (otherwise referred to as with malice), and (S) without lawful justification.[]

Id. at 560, 574 A.2d at 588 (Emphasis added). Accord Commonwealth v. Lee, 401 Pa.Super. 591, 585 A.2d 1084, 1089 (1991).

Moreover, when the trial court directed that the “intent” element of first degree murder could be satisfied by the use of a deadly weapon on a vital part of a person’s body, this was the equivalent of saying that “malice” could be inferred from such conduct as well. Our Supreme Court stated as much when it wrote in Commonwealth, v. O’Searo, 466 Pa. 224, 352 A.2d 30, 36 (1976):

Our cases have permitted the fact that an actor uses a dangerous weapon on a vital part of the body by another human being to justify a jury finding, 1) that the actor possessed the requisite malice required in common law murder, and 2) that the act was committed pursuant to a specific intent to kill.
One of the earliest formulations of this dual purpose inference is found in the charge given to the jury and approved by this Court in the landmark decision of Commonwealth v. Drum, 58 Pa. 9 (1868):
“The proof of the intention to kill, and of the disposition of mind constituting murder in the first degree, under the Act of Assembly, lies on the Commonwealth. But this proof need not be express or positive. It may be inferred from the circumstances. If, from all the facts attending the killing, the jury can fully, reasonably, and satisfactorily infer the existence of the intention to kill, and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act. He who so uses a deadly weapon without a sufficient cause of provocation, must be presumed to do it wickedly, or from a bad heart. Therefore, he who takes the life of another with a deadly weapon, and with a manifest design thus to use it upon him, with sufficient time to deliberate, and fully to form the conscious purpose of killing, and without any sufficient reason or cause of extenuation, is guilty of murder in the first degree.” Id. at 16.

At bar, the manner in which the killing occurred, i.e., a placement of a gun to the head of the victim by the defendant and the firing of it was consistent with a finding by the jury that the killing was committed with specific intent and willfully, deliberately and with premeditation (otherwise referred to as with malice). Carbone, supra; Lee, supra.

Ergo, we hold that the language utilized by the trial court in its charge, when viewed as a whole, explained accurately the essential elements necessary to find the defendant guilty of murder in the first degree. Contrast Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978).

Therefore, we find that objecting to the first degree murder charge on the ground that “malice” was not defined would have been meritless. Stanton, supra. Since counsel cannot be found ineffective for failing to advance a meritless claim, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we find no merit to the appellee’s ineffectiveness of counsel issue. Accordingly, the PCRA court erred in awarding the appellee a new trial.

Order reversed.

      . 42 Pa.C.S.A. § 9541 et seq. (Supp.1992).

      . As recounted in the record, at 12:30 a.m. on the 19th of July, 1983, the defendant drove to the American Legion Country Club. The victim was swimming in its pool after it had closed to the public. When the defendant arrived at the site, the victim was seated at the edge of the pool with his back to the entrance gate. The defendant walked directly behind the victim, placed the barrel of a .38 Special Revolver against the back of the victim’s head and, as the victim turned his head to the left, the defendant fired the revolver with the bullet entering the left side of the victim’s head. The victim fell into the swimming pool and the defendant left the scene.
      At trial, the defendant asserted a defense of intoxication and that his motivation for his actions was his sister being introduced to drugs by the victim.

      . For edification purposes, we would note that the words "willfully or premeditatedly” in the killing of another person were substituted for the words “malice aforethought” in the Act of 1682, the first statute which abolished the death penalty for all offenses except murder. See Commonwealth v. Carbone, 375 Pa.Super. 261, 544 A.2d 462, 466 n. 1 (1988), rev’d on other grounds, 524 Pa. 551, 574 A.2d 584 (1990).
      The third adjective — "deliberate”—surfaced in the Act of 1794, a term with its origin from the memoir of Justice Bradford who, in 1792, prepared for the Governor of Pennsylvania the research papers and recommendation which formed the basis of the Act of 1794 Id. The precursor to the present statute at 18 Pa.C.S.A. § 2502.

      . Even if we assume that the charge of first degree murder was erroneous, we are of the opinion that trial counsel may reasonably have believed that the charge was to the advantage of appellee since its effect was to limit the legal basis upon which the jury could return a verdict of murder in the first degree. Failure to interpose an objection, therefore, could have been a product of trial strategy and not of inadequate representation. Commonwealth v. DeBose, 501 Pa. 399, 461 A.2d 797 (1983); Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302, 305 (1975).


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    621 A.2d 1015
    Paul T. SHERWOOD, Jean Sherwood and T.J. Sherwood, Appellants, v. BANKERS STANDARD INSURANCE COMPANY and State Farm Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1992.
    Filed March 12, 1993.

      Harry W. Fenton, Lebanon, for appellants.
    Edward J. Coyle, Lebanon, for appellee.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   HUDOCK, Judge:

A single issue is presented for our review: Did the court below err in entering summary judgment on the basis that the family car exclusion contained in the policies issued by Appellee State Farm Insurance Company (State Farm) barred Appellant Paul Sherwood (Paul) from recovering first-party underinsured benefits under the facts of this case? We reverse.

This is an insurance dispute arising out of an automobile accident in which Paul was seriously injured while a passenger in his own car. James Collum (Collum) was driving the car; his negligence was the cause of the accident. Because Collum was driving Paul’s car with Paul’s permission, Paul received $100,000.00 under his own liability policy with State Farm. Paul also received $35,000.00 under an Aetna liability policy owned by Carol Collum, James’ mother. Stating that the amount of liability insurance recovered was inadequate, Paul filed a claim for underinsurance motorist benefits from two insurance companies: 1) Bankers Insurance Company (Bankers), pursuant to a policy owned by his mother, Jean Sherwood, and 2) State Farm Insurance Company (State Farm), pursuant to policies owned by his grandfather, T.J. Sherwood (T.J.). T.J.’s policies insured his cars and the members of his household. Paul lived at home with his grandfather and his mother at the time of the accident.

Under T.J.’s State Farm policies, a person claiming underinsured motorist benefits had to notify the company and arbitrate the claim. State Farm was notified of Paul’s desire to arbitrate his claim against them, but it did not respond. Following the procedures set forth in the insurance policy, Paul filed a petition to compel State Farm to proceed to arbitration. Denying its obligation to arbitrate Paul’s claim, State Farm responded to the petition by raising a number of defenses, including the family car exclusion found in T.J.’s policies. This exclusion denied coverage for any car furnished for the regular use of the insured’s family.

According to the trial court, the tenor of Pennsylvania case law suggests that “a person cannot collect both liability and underinsurance benefits from a single policy, or collect both liability and underinsurance benefits from two policies under which he, the person who underinsured the motor vehicle in which the injury occurred[,] is a beneficiary.” Opinion of the Honorable Robert J. Eby, March 25, 1992, at p. 13. Because Paul exercised control over the amount of liability coverage he would receive under his own policy, which amount proved to be insufficient to fully compensate him for his injuries, the trial court concluded that Paul cannot be heard to complain that he was underinsured. Consequently, the trial court refused to allow Paul to supplement his insufficient liability coverage with underinsurance benefits from his grandfather’s policies. On the basis of this reasoning, the trial court found that the family car exclusion was valid and operated against Paul’s claim; therefore, the trial court granted State Farm’s motion for summary judgment. The Sherwoods appealed, challenging the validity of the family car exclusion.

In reviewing an entry of summary judgment, this Court will not reverse unless the trial court has committed an error of law or an abuse of discretion. West Penn Power Co. v. Piatt, 405 Pa.Super. 467, 592 A.2d 1306 (1991), alloc. den., 530 Pa. 646, 607 A.2d 255 (1992). Summary judgment is to be entered only in those cases that are free and clear from doubt, where the uncontroverted allegations of the pleadings and other permissible material filed in support of, and in opposition to, the motion reveal that there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. Cooperstein v. Liberty Mutual, 416 Pa.Super. 488, 611 A.2d 721 (1992).

Sherwoods claim that the family car exclusion is invalid as against public policy in this case, and, therefore, should not operate to preclude Paul from recovering underinsurance benefits under T.J.’s State Farm policies. State Farm, on the other hand, contends that Paul is not entitled to benefits under T.J.’s policies because he underinsured himself and because he is attempting to convert underinsurance benefits into liability benefits.

The family car exception at issue in this case reads as follows:

An underinsured motor vehicle does not include a land motor vehicle:
* * * *
2. furnished for the regular use of you, your spouse or any relative.

State Farm Policy, Exhibit E, at p. 15. The general rule in Pennsylvania regarding family car exclusions is that such provisions are invalid as against the policy of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701 et seq. (Purdon Supp.1992). Marroquin v. Mutual Benefit Insurance Co., 404 Pa.Super. 444, 455, 591 A.2d 290, 296 (1991) (citations omitted). Allowing the family car exclusion to bar coverage in cases where a plaintiff is attempting to convert underinsured coverage into liability coverage constitutes a limited exception to the general rule. Marroquin, 591 A.2d at 296.

The MVFRL defines an underinsured motor vehicle as “A motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa.C.S. § 1702. The underlying policy of the MVFRL is to “provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.C.S. § 1731(c). The MVFRL is to be liberally construed. 1 Pa.C.S. § 1928(c) (Purdon 1992). We may not, however, rewrite the MVFRL under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b) (Purdon 1992). Rather, we must be guided in our interpretation of the MVFRL by the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. (Purdon 1992). Our objective in interpreting the MVFRL is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a) (Purdon 1992).

The leading case on application of the MVFRL is Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988), alloc. den., 520 Pa. 590, 551 A.2d 216. In Wolgemuth, a panel of this Court considered the question of whether a victim in a single car accident could recover both liability and underinsurance benefits from the single policy covering the accident vehicle. Wolgemuth, 535 A.2d at 1146. Although based on distinguishable facts, the reasoning and implications of the Wolgemuth decision are instructive in disposing of the matter before us.

The language of the [MVFRL] itself suggests that under-insurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S. § 1731(c). An underinsured motor vehicle, must, by definition, be an insured vehicle. Thus, the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

Wolgemuth, 535 A.2d at 1149 (emphasis in original).

In the case at hand, two insurance policies are at issue. Paul is an insured under his own insurance policy. Paul recovered $100,000.00 under his policy because Collum was negligent while driving Paul’s car with Paul’s permission. Paul is also covered under his grandfather T.J.’s policies as a household member. Paul seeks underinsured motorist benefits under T.J.’s policies because the liability insurance he recovered from his own policy and from Carol Collum’s policy did not fully compensate his injuries.

Sherwoods argue that the family car exclusion is invalid in this case because it denies Paul underinsured motorist benefits in a circumstance under which such benefits were meant to be provided, i.e., where liability benefits are insufficient to fully compensate the insured. According to Sherwoods, this case does not involve an attempt to convert less expensive underinsurance benefits into liability coverage — a circumstance under which the family car exclusion would be deemed valid and recovery denied. Marroquin; Wolgemuth; Newkirk v. United Services Automobile Assoc., 388 Pa.Super. 54, 564 A.2d 1263 (1989), alloc. den., 528 Pa. 624, 597 A.2d 1153 (1990). Rather, Sherwoods claim, Paul is seeking first-party underinsurance benefits under a policy which is entirely separate and distinct, with regard to the owner and automobile covered, from the policy under which liability benefits were provided. Appellants’ brief at p. 19. Furthermore, suggest Sherwoods, consideration of whether a person requesting underinsured benefits “had control over the liability provisions under which third-party benefits were paid” has not been discussed by this Court as a relevant factor. Appellant’s brief at p. 2B.

Sherwoods also suggest an inconsistency in the trial court’s ruling with regard to the liability coverage available to Paul under Carol Collum’s policy and the purposes of the MVFRL.

Had P. Sherwood not carried liability coverage on his own car, under the analysis of the trial court, he would have been permitted to retrieve underinsured motorist benefits, [because] the Collum family’s insurance coverage would have provided insufficient liability coverage, and P. Sherwood clearly had no control over the liability amounts payable under the Collum family policy. Therefore the trial court would grant P. Sherwood underinsured benefits if he personally carried no liability coverage, but deny such benefits to him because he insured himself as required under the MVFRL. This result is plainly at odds with the intent of the MVFRL ...

Appellants’ brief at pp. 24-25.

In defense, State Farm reiterates the arguments upon which the trial court relied. Paul’s being underinsured was his own fault; he should not be allowed to recover underinsurance benefits because he underinsured himself against the potential risks of letting someone else drive his car. As owner of the underinsured vehicle, Paul should not be permitted to convert his grandfather’s underinsured motorist coverage — of which he was a potential beneficiary — into coverage that would supplement the liability coverage over which hé personally exercised control.

Having thoroughly reviewed the case law relevant to this case, we do not believe Paul was attempting to convert underinsurance benefits into liability benefits. As we stated in Wolgemuth,

[T]he legislature, with the passage of the Motor Vehicle Financial Responsibility Law, did ensure that every injured individual who is injured by a negligent, underinsured motorist, will have recourse to at least $15,000 of underinsured motorist benefits either (1) pursuant to the policy of insurance applicable to the vehicle in which the individual was a passenger (if the vehicle was not at fault), or (2) pursuant to a policy of insurance under which the injured claimant is an insured person.

Id., 535 A.2d at 1148 (emphasis added) (footnote omitted). While we agree that Paul could not receive both liability and underinsurance benefits under his own policy, Wolgemuth; Cooperstein; Caldararo v. Keystone Insurance Co., 393 Pa.Super. 103, 573 A.2d 1108 (1990), alloc. den., 525 Pa. 640, 581 A.2d 567, we believe the MVFRL allows him to recover underinsured motorist benefits from another policy under which he is covered, namely, T.J.’s State Farm policies. Unlike the plaintiff in Wolgemuth, Paul is not attempting to convert underinsurance payments into liability payments. Rather, he is attempting to recover underinsurance benefits due to the fact that his and Collum’s combined liability insurance did not adequately cover his damages.

The difficulty in this case is that Paul was a passenger in his own car when the accident occurred. Because Paul allowed Collum to drive, Paul’s own liability insurance was required to provide coverage for Collum’s negligence. Consequently, Paul was precluded from receiving underinsured motorist benefits under his own policy. See Caldararo, supra (husband, injured while passenger in vehicle owned by him and operated by his wife, could not recover underinsurance benefits under his policy after collecting full liability coverage limits under his policy); Cooperstein, supra (estate of wife killed while riding as passenger in car operated by insured/husband could not recover underinsurance benefits after collecting benefits pursuant to liability provision of insured/husband’s multivehicle policy). According to the MVFRL, Paul is not without recourse, however. While his car may not qualify under the State Farm policies as an underinsured vehicle, it qualifies as one under the statutory definition: Paul’s car is “a motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa.C.S. § 1702. Paul is also entitled to underinsured motorist benefits because James Collum qualifies as an “operator[ ] of [an] underinsured motor vehicleL ].” 75 Pa.C.S. § 1731(c). Moreover, the MVFRL allows Paul to recover underinsurance benefits pursuant to a policy of insurance under which the injured claimant is an insured. Wolgemuth, 535 A.2d at 1148. T.J.’s policies include Paul as an insured; therefore, he is entitled to recover under them.

We can distinguish the facts of this case from the authorities upon which State Farm relies. Those cases involved a claimant seeking to recover both liability and underinsurance benefits from 1) the same policy or 2) a policy under which they did not qualify as an insured or a covered party. In this case, Paul was not seeking underinsurance benefits from a policy under which he already collected liability benefits. Nor was he seeking underinsurance benefits pursuant to a policy under which he was not covered.

The case we consider most analogous to the matter before us is Marroquin. Jose Luis Marroquin was injured when he was struck by an automobile owned and operated by his brother, Jorge Marroquin. Both Jose and Jorge resided with their parents at the time of the accident. The parents owned an automobile insurance policy with Mutual Benefit. This policy covered two of their vehicles and provided coverage for family members; it also contained a family car exclusion. Jose and Jorge both fell within the policy definition of family member. The policy included underinsured motorist benefits of $100,000.00. Jorge also owned an insurance policy which covered only his vehicle, the one involved in the accident. Jorge’s policy contained a family liability limitation which denied coverage in excess of the statutory limits of the MVFRL, i.e., $15,000.00. Jose settled with Jorge’s insurer for the policy limit of $15,000.00; he then turned to his parents’ insurer, Mutual Benefit, for underinsurance benefits. When Mutual Benefit denied coverage because of the family car exclusion, Jose filed suit against it.

Relying on two Minnesota precedents, the rationales of Wolgemuth and Newkirk, and the purposes of the MVFRL, a panel of this Court determined that the family car exclusion at issue in Marroquin was invalid as against public policy. The panel explained their conclusion as follows:

In the instant case, there is no dispute that appellant’s underinsured motorist coverage followed him to whatever point that he may have been injured. The only bar to his recovery was that his brother owned the vehicle that injured him. Under the facts of this case, such a bar was not justified as its purpose was not to convert underinsured motorist coverage into liability coverage.

Marroquin, 591 A.2d at 297. Because Jose did not have underinsured motorist coverage of his own, he was required to turn to another policy naming him as an insured, i.e., his parents’ policy. This Court permitted Jose to recover those benefits.

We similarly believe the only bar to Paul’s recovery was that he owned the accident vehicle. Under the facts of this case, such a bar is not justified because we find no evidence that Paul (and/or his mother and grandfather) was attempting to convert underinsured coverage into liability coverage. Because Collum was negligent while driving with Paul’s permission, Paul’s right to underinsured motorist benefits under his own policy was sacrificed under the holding of Wolgemuth. However, the MVFRL authorizes Paul’s recovery of underinsured motorist benefits from any policy under which he is an insured. Hence, we find that the family car exclusion is invalid under the circumstances of this case and that Paul is entitled to recovery of underinsured motorist benefits pursuant to the State Farm policies owned by T.J., but naming him as an insured.

Were we to allow denial of Paul’s claim for underinsured motorist benefits, when he is an insured party under the State Farm policies who was injured by the negligence of an under-insured tortfeasor, the protection afforded by the MVFRL would be rendered meaningless.

For the foregoing reasons, we believe the trial court erred in adopting an interpretation of the MVFRL which denies underinsurance coverage to a party injured as the result of someone else’s negligence while a passenger in his own car, where the party collected liability coverage under his own policy and then seeks underinsurance coverage under a separate policy which covers him as an insured.

Judgment reversed. Jurisdiction relinquished.

      . Bankers has agreed to pay underinsurance motorist benefits upon receipt of proof of damages, and so is no longer concerned with this case.

      . If the exclusion is, in fact, valid in the instant matter, none of the parties disputes its application to bar Paul's claim for underinsurance benefits.

      . Our research uncovered a recent case which does refer to an insured's control over the amount of liability coverage purchased. The case is Kelly v. Nationwide Ins. Co., 414 Pa.Super. 6, 18-20, 606 A.2d 470, 476 (1992). We consider the facts of Kelly distinguishable from the facts of the matter sub judice and, therefore, do not rely on the reference to an insured’s control over the purchase of liability coverage.
      Mrs. Kelly and her husband purchased a single insurance policy which covered both their cars. The policy contained an exclusion which denied underinsurance coverage to any vehicle also insured under the liability coverage of the policy. Mrs. Kelly was injured while a passenger in one of the cars. She recovered liability insurance pursuant to the coverage on the accident vehicle. She then sought underinsurance benefits pursuant to the coverage on the second car. According to the Kelly panel, the vehicle exclusion in Nationwide’s policy was in perfect accord with the purpose of the MVFRL (protection of the injured claimant against the risk that a tortfeasor over whom the claimant has no control purchases an inadequate amount of liability coverage). The panel opined that Mrs. Kelly and her tortfeasor husband, “had control over the amount of liability coverage they purchased. We have no trouble holding that despite [Mrs. Kelly’s] attempt to characterize this as a novel claim, precedent has already spoken on this question.” Kelly, 606 A.2d at 476. The precedent to which the Kelly panel referred is Wolgemuth (insured may not collect both liability and underinsurance benefits from the same policy).

      . State Farm also argues that Paul is not entitled to underinsurance under T.J.’s policies because Paul failed to adequately insure his own car as the result of his voluntary decision to limit his liability insurance to a certain amount. According to State Farm, if Paul is permitted to recover, insureds could chose the minimum liability insurance coverage and then, when injured in an accident involving their own car, could abuse the MVFRL system by claiming underinsurance benefits under another policy. We find this argument unpersuasive under the facts of this case. Contrary to State Farm’s characterization, Paul did not chose the minimum liability coverage limits ($15,000.00/$30,000.00) and then turn to another policy for underinsurance, thereby abusing the MVFRL system. Rather, Paul chose to insure his own vehicle for three times the statutory minimum, which, ironically, was still insufficient to compensate his injuries.

      . The Marroquin panel relied on DeVille v. State Farm Mutual Automobile Ins. Co., 367 N.W.2d 574 (Minn.1985), which, in turn, relied on American Motorist Ins. Co. v. Sarvela, 327 N.W.2d 77 (Minn.1982). The rule of law announced in Sarvela, which this Court adopted in Marroquin, states that “a policy provision which excludes underinsured motorist benefits when the insured is injured while occupying a vehicle owned by the insured or family member is presumed to be invalid.” Marroquin, 591 A.2d at p. 296 (emphasis in original). We note, therefore, that State Farm bears the burden of rebutting the presumption that their family car exclusion provision is invalid.


author: KELLY, Judge.

text:
    621 A.2d 1021
    In re ESTATE OF Sam CANTOR. Appeal of Sam CANTOR.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1993.
    Filed March 16, 1993.

      David R. Morrision, Lancaster, for appellant.
    Martin Cantor, pro se.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge.

This is an appeal from the order entered in the Orphans’ Court Division of the Lancaster County Court of Common Pleas dismissing without prejudice the appellant’s, Samuel Cantor’s, petition to transfer assets from the former attorney-in-fact to the principal. We reverse and remand to the Orphans’ Court with instructions to transfer the case to the appropriate division of the Lancaster County Court of Common Pleas.

The relevant facts and history are as follows. From the mid-1970’s until December 17, 1991, Martin Cantor, the appellant’s son, exercised financial control as attorney-in-fact over the appellant’s financial affairs at the appellant’s request. On June 15, 1992, the appellant, age ninety-three, filed a petition in the Orphans’ Court Division of the Lancaster County Court of Common Pleas alleging that the attorney-in-fact had converted entrusted assets and requesting that the allegedly converted assets be returned (the petition). However, the appellant did not allege in the petition that he was either disabled or incapacitated in any way. The trial court, sua sponte, ruled that 20 Pa.C.S.A. § 712(4) does not permit the Orphans’ Court to exercise non-mandatory jurisdiction over a dispute concerning actions purportedly taken by an attorney-in-fact when the principal has neither alleged incapacity or disability. The Orphans’ Court then entered an order dismissing the appellant’s petition without prejudice to the appellant’s right to proceed appropriately with the petition in the division of the Common Pleas Court having proper jurisdiction over the matter. This timely appeal followed.

On appeal, the appellant raises the following issue for our review:

1. MAY THE ORPHANS[’] COURT TAKE JURISDICTION OF A MATTER INVOLVING A PRINCIPAL AND AN ATTORNEY-IN-FACT WHERE NO AVERMENT OF INCAPACITY IS MADE?

(Appellant’s Brief at 3).

Before addressing the merits of the appellant’s issue on appeal, we are compelled to note that jurisdiction of the court over the subject matter can be raised at any time by either the parties or by the court on its own motion. Daly v. School Dist. of Darby Twp., 434 Pa. 286, 252 A.2d 638 (1969); Bloom v. Bloom, 238 Pa.Super. 246, 362 A.2d 1024 (1976). Neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968); United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992).

Now, we may address the merits of the appellant’s appeal in which he contends that 20 Pa.C.S.A. § 712(4) which grants the Orphans’ Court the ability to exercise non-mandatory jurisdiction over matters pertaining to powers of attorney does not require that a petitioner plead either incapacity or disability in his petition. The appellant argues that the legislature’s usage of the word “may” in 20 Pa.C.S.A. § 712(4) permits the Orphans Court to exercise non-mandatory jurisdiction over matters pertaining to powers of attorney where neither incapacity or disability has been alleged. We disagree.

The jurisdiction of the Court of Common Pleas may be exercised through either its Orphans’ Court Division or other appropriate divisions:

(4) Powers of attorney. — All matters pertaining to the exercise of powers by attorneys in fact or agents acting under powers of attorney as provided in Chapter 56 (relating to powers of attorney) when the principal is or may be deceased, disabled or incapacitated.

20 Pa.C.S.A. § 712(4) (footnote omitted). Thus, the Orphans’ Court is permitted to assume non-mandatory jurisdiction under 20 Pa.C.S.A. § 712(4) only where the principal is or may be deceased, disabled or incapacitated. The statute does not mention, nor does it permit, the Orphans’ Court to exercise non-mandatory jurisdiction over a petition concerning a power of attorney where none of the above-mentioned conditions affecting the principal has been alleged in the petition. See 1 Pa.Std.Prac. § 2.91; 29 Pa.Std.Prac. § 141:10. Accordingly, because the appellant had neither alleged incapacitation nor disability in his petition, the Orphans’ Court properly held, sua sponte, that it was not permitted to assume jurisdiction over the petition.

However, despite its inability to assume jurisdiction, the Orphans’ Court erred in dismissing the appellant’s petition without prejudice to the right of the appellant to proceed appropriately in a court with jurisdiction over the matter. We reach this conclusion for the following reason.

Each division of a court of common pleas is vested with the full jurisdiction of the whole court. 42 Pa.C.S.A. § 952; Guerin v. Guerin, 296 Pa.Super. 400, 404 n. 3, 442 A.2d 1112, 1113 n. 3 (1982). The proper remedy when a case has been brought in the wrong division of a multi-divisional common pleas court is not a dismissal, but rather, a transfer to the correct division. 42 Pa.C.S.A. § 5103(c); Commonwealth v. Wadzinski, 485 Pa. 247, 254-55, 401 A.2d 1129, 1132 (1978); Lucidore v. Novak, 391 Pa.Super. 46, 49, 570 A.2d 93, 94 (1990). Thereafter, the matter should be treated as if it was originally filed in the transferred division on the date first filed in a court or magisterial district. 42 Pa.C.S.A. § 5103(c); Commonwealth v. Wadzinski, supra 485 Pa. at 255, 401 A.2d at 1132. Thus, the appellant’s petition should have been transferred by the Orphans’ Court to the appropriate division of the Common Pleas Court, rather than dismissed without prejudice.

Based upon the foregoing, the order of the Orphans’ Court Division of the Lancaster County Common Pleas Court is reversed, and the case is remanded to the Orphans’ Court of Lancaster County with instructions to enter an order transferring the case to the appropriate division of the Lancaster County Common Pleas Court. Jurisdiction relinquished.


author: HOFFMAN, Judge:

text:
    621 A.2d 1023
    COMMONWEALTH of Pennsylvania v. Patrick HARTEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed March 16, 1993.

      Norris E. Gelman, Philadelphia, for appellant.
    Peter Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a judgment of sentence for first degree murder, criminal conspiracy, and possession of an instrument of crime. Appellant, Patrick Hartey, raises six issues on appeal.

I. [Whether] trial counsel was ineffective for failing to preserve his objections to the improper bolstering of the Barth preliminary hearing testimony in his written post trial motions, and was also ineffective for failing to object to the improper bolstering in her opening address?
II. [Whether] trial counsel was ineffective for failing to object to the court’s exclusion of defense witnesses who would have testified to the poor reputation for truth and veracity on the part of the most critical Commonwealth witness, John Barth?
III. [Whether] trial counsel was ineffective for failing to object to the court’s charge which directed the attention of the jury to the state of mind of the shooter, and permitted appellant’s conviction based on the state of mind of the shooter and not based on his state of mind, and which never informed the jury that in order to convict appellant of first degree murder it had to find, beyond a reasonable doubt, that he harbored the specific intent to kill the victim?
IV. [Whether] trial counsel was ineffective for failing to properly preserve his objection to the court’s refusal to answer the first jury inquiry in the affirmative?
V. [Whether] trial counsel was ineffective for failing to request a flight charge as to the missing witness, John Barth?
VI. [Whether] the cumulative effect of these errors on counsel’s part deprived appellant of anything close to a fair trial?

Appellant’s Brief at i-ii.

Following a joint trial with co-defendant Thomas McCandless appellant was convicted of first degree murder, criminal conspiracy, and possession of an instrument of crime on August 20,1982. Post-trial motions were filed and denied and on April 17, 1984, appellant was sentenced to life imprisonment. Appellant’s trial counsel took a timely appeal but failed to file a timely appellate brief which resulted in the dismissal of appellant’s appeal on September 20, 1985.

Michael McAllister replaced trial counsel and secured the reinstatement of direct appellate rights after a PCHA proceeding on May 20, 1987 in which other relief requested by appellant was denied. Mr. McAllister took a timely appeal to this court, however he too failed to file a timely appellate brief and the appeal was dismissed.

This unfortunate procedure repeated itself once again when Mr. Vincent Lorusso, appellant’s third attorney, secured appellant’s right to take a direct appeal after filing a PCHA petition, and subsequently failed to file a timely brief. The third appeal was then dismissed on March 28, 1988.

Present counsel for appellant filed a PCRA petition seeking to have direct appellate rights reinstated on May 23, 1990. The PCRA Court granted the right to appeal nunc pro tunc on March 6, 1992. This timely appeal followed. For the reasons that follow, we affirm.

Appellant first contends that trial counsel was ineffective for failing to object and preserve for appeal the improper bolstering of Commonwealth witness John Barth. Specifically, he argues that trial counsel was ineffective for failing to preserve for appeal his objection to the improper bolstering of the Barth testimony by Commonwealth witness Joseph Murray and for failing to object to the improper bolstering of Barth’s testimony by the prosecutor in her opening statement. We disagree.

Counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987). To prevail on a claim of ineffectiveness,' appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests and that counsel’s conduct prejudiced him. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). In the instant case appellant’s underlying contentions regarding bolstering by the Commonwealth are meritless.

Mr. Murray, the Assistant District Attorney who had negotiated the agreement with Barth, was called by the prosecution to explain the full extent of the agreement. It is well-settled that the Commonwealth has a duty not to conceal the existence of a promise or of an agreement to recommend a specific sentence or leniency for a crucial prosecution witness. Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978); Commonwealth v. Weismann, 401 Pa.Super. 62, 70, 584 A.2d 980, 984 (1990), allocatur denied 528 Pa. 644, 600 A.2d 195 (1991); Commonwealth v. Floyd, 259 Pa.Super. 552, 393 A.2d 963 (1978); Commonwealth v. Kurtz, 219 Pa.Super. 1, 280 A.2d 410 (1971). Such agreements have a significant bearing on the witnesses’ motive for testifying and hence their credibility. Thus, they should be fully, fairly and honestly disclosed when they come into question at trial. Floyd, 259 Pa.Super. at 558-59, 393 A.2d at 966-67; Kurtz, 219 Pa.Super. at 4, 280 A.2d at 411.

In the instant case Barth testified at the preliminary hearing that it was his understanding that the Commonwealth would drop the murder charge against him if he testified against the co-defendants. N.T. 8/10/82 at 787. However, Barth’s agreement with the Commonwealth was in fact more favorable than Barth’s testimony indicated. Therefore, Murray testified to the additional terms included in the agreement with the Commonwealth, namely that the Commonwealth agreed to assist Barth in having his bail reduced, and that Barth was released on bail. N.T. 8/11/82 at 803, 814.

Appellant however contends that in giving this testimony, Murray improperly bolstered Barth’s credibility when he testified that he told Barth that the deal would only be valid if Barth’s story was corroborated by the District Attorney’s investigation. This court has recognized that improper bolstering or vouching for witnesses by the Commonwealth occurs in two situations: “(1) When the prosecution places the prestige of the government behind the witness by personal assurances of the witness’s veracity; and (2) when the prosecution indicates that information which is not before the jury supports the witnesses testimony.” Commonwealth v. Reed, 300 Pa.Super. 224, 230, 446 A.2d 311, 314 (1982).

In the instant case Mr. Murray expressed no personal opinion as to the truthfulness of Mr. Barth’s testimony. Nevertheless, the court gave the jury a cautionary instruction in relation to Mr. Murray’s testimony as follows:

In evaluating the testimony of Joseph Murray, Chief of the Homicide Unit of the District Attorney’s Office, who testified this morning, if you interpreted any of his responses to the questions to include any opinion by him of the truthfulness of the witness Barth’s statement, then his testimony as to that matter should be disregarded by you and you should understand that such testimony was not offered for that purpose. You, as the jury, are the sole finders of the facts and, as such, the credibility of all witnesses.”

N.T. 8/11/82 at 920-21. Therefore, any possible prejudice to the appellant from Murray expressing a personal opinion about the veracity of witness Barth was eliminated.

Additionally, Murray did not refer to matters outside the evidence in relating the terms of the agreement with Barth, as the corroborative information resulting from the investigation was presented to the jury. A medical examiner’s testimony, corroborated three important aspects of Barth’s testimony. First, the medical examiner’s testimony that the victim suffered head injuries in addition to fatal gunshot wounds, N.T. 8/12/82 at 1014-16, was consistent with Barth’s testimony that the co-defendant struck the victim on the head with a pistol, N.T. 8/10/82 at 779-80, 789-91. Second, he stated that the head injuries probably occurred prior to the shooting as Barth described. N.T. 8/12/82 at 1016-17; N.T. 8/10/82 at 779-80, 789-91. Third, both testified that the victim was shot in the back. N.T. 8/12/82 at 1013-14; N.T. 8/10/82 at 780.

Moreover, Barth’s testimony that the co-defendant accused the victim of spying on his wife before he killed the victim was corroborated by evidence that the victim had fired a gun at the parked car of the co-defendant’s wife. N.T. 8/10/82 at 780; N.T. 8/11/82 at 954-56. Also Barth’s testimony that the co-defendant was the gunman was corroborated by a ballistics expert who testified that the victim was killed with either a .38 special or a .357 Magnum and the victim’s brother, who saw the co-defendant threaten the victim with a similar-sized gun after the victim had testified against the co-defendant at a prehminary hearing. N.T. 8/10/82 at 781; N.T. 8/11/82 at 864r-66; N.T. 8/11/82 at 932-35. Finally, Barth’s claim that the co-defendant rented the garage where the shooting occurred was fully corroborated by independent testimony. N.T. 8/10/82 at 783; N.T. 8/11/82 at 824-30; N.T. 8/12/82 at 997-1001.

Thus, the jury was presented with extensive evidence corroborating Barth’s statement. Therefore, Murray’s statement relating to the corroboration of Barth’s testimony cannot then be construed as referring to facts not before the jury.

Similarly, then, the prosecutor’s reference to steps taken to verify Barth’s testimony referred to Murray’s testimony and the other testimony presented which corroborated Barth’s testimony. It was thus a fair characterization of the evidence presented by the Commonwealth and squarely within the parameters of a proper opening statement. See, e.g., Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981) (prosecutor’s opening statement should be a fair deduction from evidence that the Commonwealth in good faith expects to develop). Accordingly appellant’s underlying contention is without merit, and hence counsel cannot be deemed ineffective.

Appellant next contends that trial counsel was ineffective for failing to object to the trial court’s exclusion of defense witnesses who would have testified to the poor reputation for truth and veracity of Commonwealth witness, John Barth. We disagree.

As stated previously, in order to prevail on an ineffectiveness claim, appellant must first demonstrate that his underlying claim has merit. In the instant case, trial counsel for appellant’s co-defendant offered to present several witnesses, whose names he did not know, whom he claimed would testify to Commonwealth witness Barth’s bad reputation for truth and veracity in the community. N.T. 8/12/82 at 1071-72; N.T. 8/13/92 at 1242. The court precluded these alleged witnesses from testifying.

While it is well established that witnesses may be impeached by evidence of bad reputation for truth or veracity, we decline to find counsel ineffective for failing to object to the court’s exclusion of so tenuous an offer of proof by co-defendant’s trial counsel. Neither the identities nor the actual availability of the alleged witnesses was established. In addition, there is no evidence in the record regarding these witnesses. Accordingly, we find that appellant’s underlying claim is without merit.

Moreover, appellant was not prejudiced by the absence of reputation testimony to attack the credibility of Commonwealth witness Barth. The jury already had before it abundant evidence attacking Barth’s credibility. The jury was aware that Barth himself was charged with the murder, that he made a deal in order to be released on bail and to have the murder charges dropped, and that he had failed to appear for trial. N.T. 8/11/82 at 803, 818, 820. In addition, the defense introduced evidence that Barth had admitted to several others that he had committed the murder and was trying to pin it on the the co-defendants. N.T. 8/12/82, at 1082-83, 1115, 1128-29, 1132-34, 1151-52. Barth had also admitted on cross-examination that he had used a false name, that of co-defendant McCandless, when he had been arrested in an unrelated matter. N.T. 8/10/82 at 788-89. Finally, the trial court issued an accomplice/corrupt source charge with respect to Barth, instructing the jury to look upon his testimony with disfavor, and to accept it only with “caution and care.” N.T. 8/19/82 at 1509.

Thus, as there was extensive impeachment evidence introduced concerning Barth’s credibility, and motive to testify falsely, as well as the court’s charge, any additional evidence attacking Barth’s credibility would have been merely cumulative. Appellant therefore cannot demonstrate that the absence of this cumulative evidence affected the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987) (citations omitted); Commonwealth v. Jennings, 405 Pa.Super. 590, 597-99, 592 A.2d 1370, 1374-75 (1991) allocatur denied 529 Pa. 632, 600 A.2d 952 (1991). Accordingly, appellant’s ineffective assistance of counsel claim must fail.

Appellant next contends that trial counsel was ineffective for failing to object to the trial court’s jury charge. Specifically, appellant argues that the court’s chargé directed the attention of the jury to the state of mind of the co-defendant and permitted appellant’s conviction based on the state of mind of the co-defendant. Appellant asserts that the court never informed the jury that in order to convict appellant of first degree murder it had to find, beyond a reasonable doubt, that appellant had the specific intent to kill. We disagree.

The trial court’s charge on accomplice liability and on the required mens rea for first degree murder was entirely proper. The court’s charge on accomplice liability mirrored the relevant statutory definitions. Moreover, the court explicitly instructed the jury that in order to find appellant guilty as an accomplice to first degree murder, they would have to ask themselves “did the defendants have the willful, deliberate, and premeditated specific intent to kill at the time of the killing.” N.T. 8/19/82 at 1524. Thus, the jury was instructed that in order for appellant to be found guilty both he and his co-defendant had to have the specific intent to. kill. Appellant’s claim therefore that the jury instruction was improper is meritless. See Commonwealth v. Chester, 526 Pa. 578, 613-14, 587 A.2d 1367, 1384-85 (1991) cert. denied, -U.S.-, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991).

Appellant next contends that his trial counsel was ineffective for failing to properly preserve his objection to the court’s refusal to answer the first jury inquiry in the affirmative. We disagree.

The nature of the court’s response to inquiries from the jury is within the discretion of the court, so long as the court accurately instructs the jury on the appropriate legal principles involved. Commonwealth v. Tervalon, 463 Pa. 581, 592, 345 A.2d 671, 677 (1975); Commonwealth v. Haddle, 271 Pa.Super. 418, 422, 413 A.2d 735, 738 (1979); Commonwealth v. Fried, 382 Pa.Super. 156, 163, 555 A.2d 119, 122 (1989) allocatur denied 522 Pa. 623, 564 A.2d 915 (1989). Here, the jury asked the court: “Can two people being tried for the same charge be guilty of different degrees of murder?” N.T. 8/19/82 at 1554. There was a dispute between appellant’s trial counsel and the assistant district attorney about what the jury was asking, so the court asked the jury to clarify their question. N.T. 8/19/82 at 1553. The jury then returned with the question “please explain what an accomplice is according to the law?” N.T. 8/19/82 at 1554. The court then properly reinstructed the jury on accomplice liability. This was proper and within the courts discretion. See Commonwealth v. Washington, 274 Pa.Super. 560, 567-68, 418 A.2d 548, 552 (1980) (rejecting claim that court erred in reinstructing the jury in lieu of responding with a yes or no answer). Thus, appellant’s underlying claim is meritless and his ineffectiveness claim must fail.

Appellant next claims that trial counsel was ineffective for failing to request a flight charge as to Commonwealth witness Barth. Once again we disagree.

A flight charge is appropriate “when a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964). The charge is usually given where the accused has exhibited such guilty behavior. This court has suggested that the charge should also be available “to a defendant with regard to another’s guilty behavior where the accused defends on that basis.” Commonwealth v. Wyche, 320 Pa.Super. 483, 487, 467 A.2d 636, 637-38 (1983).

However, we do not believe a flight charge was appropriate in the instant case. Barth had entered into an agreement with the Commonwealth pursuant to which he would not be prosecuted for the murder of the victim if he testified at the preliminary hearing and at trial. Therefore, the only way Barth would be “wanted” for the crime in the instant matter was if he failed to testify. Therefore, it cannot be stated that Barth fled in order to avoid prosecution. Without this fear being the motivation for his flight or failure to appear, it is not probative of consciousness of guilt. Commonwealth v. Jones, 457 Pa. 563, 576, 319 A.2d 142, 149 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). Accordingly, a flight charge was not appropriate in the instant case. Thus, appellant’s claim of ineffective assistance of counsel is meritless.

Appellant’s final claim is that the cumulative effect of the aforementioned allegations of ineffective assistance of counsel deprived appellant of a fair trial and hence require that appellant be granted a new trial. In light of our resolution of the previous issues, this claim is meritless. Accordingly, we affirm the judgment of sentence.

Affirmed.

      . 18 Pa.C.S.A. § 2502(a).

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 907.

      . Moreover, this court has recognized that an Assistant District Attorney’s testimony concerning the general procedures employed to verify information received from a witness does not improperly bolster the witness' credibility. Commonwealth v. Vidmosko, 393 Pa.Super. 236, 243-44, 574 A.2d 96, 99 (1990), allocatur denied 527 Pa. 645, 593 A.2d 418 (1991). In this case, the witness’s mere reference to "corroborating” a statement by "investigation” was clearly proper.

      . See Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976); In the Interest of Lawrence J., 310 Pa.Super. 351, 456 A.2d 647 (1983); Commonwealth v. Hansell, 185 Pa.Super. 443, 137 A.2d 816 (1958).

        . See 18 Pa.C.S.A. §§ 306(c), 2502(a), (d).


author: HOFFMAN, Judge.

text:
    621 A.2d 1030
    Kathy SMITH, Administratrix Ad Prosequendum of the Estate of Charles L. Smith, on Behalf of the Estate, Its Survivors and Dependents, and In Her Own Right, Appellant, v. THOMAS JEFFERSON UNIVERSITY HOSPITAL, Peter Schneider, M.D., Helena Boiler-Watts, M.D., Eric L. Hume, M.D., Douglas Hutchinson, M.D., Lisa Rescigno, Dominic Buonfiglio, Harpers Bar, Corba’s Saloon and William J. Barben, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1992.
    Filed March 16, 1993.

      Thomas A. Whelihan, Philadelphia, for Thomas Jefferson University Hosp., appellee.
    Timothy R. Coyne, Philadelphia, for Rescigno, appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the December 16, 1991 order granting appellees’ motion for judgment on the pleadings and dismissing appellant’s complaint with prejudice. Appellant, Kathy Smith, Administratrix of the estate of Charles S. Smith, presents two issues on appeal:

I. Whether the court below erred in granting defendants’ motion for judgment on the pleadings where genuine issues of material fact existed as to the intent of the parties in executing the release giving rise to defendants’ motion. II. Whether the lower court erred in granting defendants’ motion for judgment on the pleadings based upon Brosius v. Lewisburg Craft Fair, 383 Pa.Super. 454, 557 A.2d 27 (1989) when appellant’s cause of action for malpractice alleges that a separate and distinct fatal injury occurred thereby raising the factual issue that the malpractice appellee committed a separate tort unrelated to the motor vehicle accident.

Appellant’s brief at 3. For the following reasons, we affirm.

The facts in the instant case have been summarized by the lower court as follows:

This matter arose out of an automobile accident and the subsequent death of [appellant’s] decedent, Charles L. Smith. In October, 1988, [appellant’s] decedent was a passenger in an automobile owned and operated by William J. Barben, Jr. (“Barben”). [Appellant] alleged that Barben’s vehicle was struck from behind by a vehicle operated by Lisa Rescigno in the northbound lanes of 1-95 in Philadelphia County.
As a result of the accident, appellant’s decedent sustained a fractured hip which required medical treatment and hospitalization. [Appellant’s] decedent subsequently came under the care of the moving [appellees], suffered thromboembolism and died.
On or about April 13, 1989, [appellant] entered into and executed a General Release (“Release”) of all claims against Barben. Under the terms of the Release, [appellant] also discharged “all other person, firms, corporations, associations or partnerships of an from any and all claims ... whatsoever.”
Thereafter, approximately thirteen (13) months after [appellant] had executed the Release — during which time [appellant] never contested the validity of the Release — [appellant] alleged for the first time that the Release was invalid as to both Barben and [appellees]. Subsequently, [appellant] filed Complaints against Barben and the moving [appellees] on October 19, 1990 and January 24, 1991, respectively. [Appellant] argued that she never intended to release the moving [appellees] and that, in fact, she was not aware of the [appellees’] alleged liability with respect to decedent’s death at the time she signed the Release.
[Appellees] filed a Motion for Judgment on the Pleadings, arguing that [appellant] was precluded from maintaining a cause of action by the terms of the Release. [The lower court], by Order dated December 16, 1991, granted [appellees’] Motion and dismissed [appellant’s] Complaint with prejudice. This appeal ensured.

Trial Court Opinion, March 31, 1992 at 2-3.

Initially, it is well-settled that judgment on the pleadings is inappropriate if there are unknown or disputed issues of fact. Pa.R.Civ.P. 1034. Moreover, in determining this matter we recognize that:

A motion for judgment on the pleadings may be granted only in cases where no facts are at issue and the law is so clear that a trial would be a fruitless exercise. In addition, the court must view all well pled facts of the non-moving party as true and grant leave to amend if upon reviewing the pleadings the existence of. a material facts appears ambiguous.

Beardell v. Western Wayne School District, 91 Pa.Commw. 348, 353, 496 A.2d 1373, 1375 (1985) (citing Matthew-Landis v. Housing Authority, 240 Pa.Super. 541, 361 A.2d 742 (1976)).

Appellant contends that the lower court erred in granting appellees’ motion for judgment on the pleadings based upon the release entered into between appellant and Barben. First, appellant argues that issues of material fact continue to exist as to whether the parties to the release were mutually mistaken as to its scope. See Buttermore v. Aliquippa Hospital, 522 Pa. 325, 329-330, 561 A.2d 733, 735 (1989) (absent fraud, accident or mutual mistake, the release must be given its plain and ordinary meaning). Appellant’s argument, however, is without merit.

Mutual mistake will afford a basis for reforming a contract. Gocek v. Gocek, 417 Pa.Super. 406, 612 A.2d 1004 (1992). Mutual mistake exists, however, only where “both parties to a contract [are] mistaken as to existing facts at the time of execution.” Loyal Christian Ben. Ass’n v. Bender, 342 Pa.Super. 614, 618, 493 A.2d 760, 762 (1985); Restatement (Second) Contracts, Section 152 (1981). Moreover, to obtain reformation of a contract because of mutual mistake, the moving party is required to show the existence of the mutual mistake by evidence that is clear, precise and convincing. Bugen v. New York Life Insurance Co., 408 Pa. 472, 475, 184 A.2d 499, 500 (1962).

In the instant case, appellant has failed to evince a mistake on the part of Barben, the other party to the release. Appellant merely asserts that she never intended to release parties other than Barben and his insurance carrier. It is clear from appellant’s assertions that the only mistake which was made regarding the formation of the contract-release between appellant and Barben was her own. See, e.g., Leyda v. Norelli, 387 Pa.Super. 411, 413, 564 A.2d 244, 245 (1989) (“[Underestimating damages or making a settlement before damages are accurately ascertained is not considered a mutual mistake of fact.”).

If a mistake is not mutual but unilateral and is not due to the fault of the party not mistaken, but to the negligence of the one who acted under the mistake, it affords no basis for relief in rescinding the contract-release. McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969); see also Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986). As appellant has failed to demonstrate the existence of mutual mistake, the lower court correctly found the terms of the release agreement between appellant and Barben controlling.

Appellant next asserts that the lower court improperly barred her action against appellees based on the release agreement because the present action rested upon a separate and distinct tort. Specifically, appellant argues that where a subsequent medical malpractice action alleges a new injury, as opposed to the aggravation of accident related injuries, the terms of the release agreement by plaintiff and the original tortfeasor are irrelevant. This same argument, however, was advanced in a case similar to the one at bar and rejected by this court.

In Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991), plaintiff was struck by an automobile and subsequently taken to defendant-hospital where he was placed under the care of defendant physicians. Plaintiff was diagnosed with a fractured left femur and a minor neck injury. Thereafter, however, as a result of the alleged negligence of the defendant physicians, plaintiff was required to undergo a spinal fusion.

While plaintiff was undergoing tests for his neck, but prior to his surgery, plaintiffs parents entered into a general release relieving the driver in consideration for $50,000. Approximately one year later, plaintiff instituted an action against the medical defendants claiming that “appellants’ negligent treatment of their son’s injuries provided a separate and distinct cause of action not precluded by the 1983 release.” Id., at 5, 598 A.2d at 1298.

In rejecting the plaintiffs claim in Dublin, this court properly confined its inquiry to the terms of the prior release agreement. Thus, we held that as the subsequent injury to plaintiff was directly or indirectly the result of the underlying accident, the lower court erred in not granting defendant physicians’ motion for summary judgment. Similarly, in the instant case, our determination as to whether the release between appellant and Barben bars appellant’s present action is guided by the language of the release agreement. See Buttermore supra, 522 Pa. at 328, 561 A.2d at 735 (“However improvident their agreement may be or subsequently prove for either party, their agreement ... is the law of their case.”).

In the case at bar, the release agreement releases all persons from all claims “growing out of any and all known and unknown, foreseen and unforeseen bodily injuries ... and the consequences thereof resulting or to result from the accident .... ” Therefore, the issue is whether appellant’s medical malpractice claim against the appellees arose as a result of the underlying accident. We find that it did, and, therefore, appellant’s claim against appellees is barred by the release agreement.

In appellant’s complaint, she avers that the decedent sought medical attention from appellees in an attempt to treat and cure his injury, a fractured hip, sustained in the underlying motor vehicle accident. She further states that appellees negligent treatment of decedent occurred during the course of treatment. “[Appellant] while undergoing orthopedic manipulation of the hip, was caused to suffer thromboembolism which condition resulted solely from the dislodging of a blood clot during the orthopedic manipulation of deceased [appellant’s] hip.” Appellant’s Complaint at 6. It is clear that appellant’s present cause of action against appellees results from the treatment decedent sought as a consequence of his automobile accident. Appellant’s claim against appellees, therefore, falls clearly within the language of the release. Thus, we find that the lower court properly granted appellees’ motion for judgment on the pleadings.

For the foregoing reasons, we affirm.

Affirmed.

      . On January 7, 1992, the lower court granted Barben’s motion for summary judgment, finding that appellant was precluded from maintaining a cause of action under the terms of the Release.

      . The relevant provision in the release agreement entered into between appellant and Barben stated as follows:
      all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs ... whatsoever, which the undersigned now has ... or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily injuries .".. and the consequences thereof resulting or to result from the accident ...”

        Release dated April 13, 1989.

      . The release agreement in Dublin, in relevant part, provided as follows:
      The undersigned agreed as a further consideration and inducement for this release and indemnity agreement, that it shall apply to all unknown and unanticipated injuries and damages directly and indirectly resulting from the said accident, as well as to those disclosed.

        Id. at 8, 598 A.2d at 1299 (emphasis added).


text:
    621 A.2d 1033
    Beverly Anne MILLER v. Eleanor KRAMER and the Estate of William Randall Sherwood by its Executrix Eleanor Kramer, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 2, 1992.
    Filed March 16, 1993.

      Francis J. Catania, Media, for appellant.
    Garland D. Cherry, Sr., Media, for appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a final order denying appellants, Eleanor Kraemer and the Estate of William Sherwood, any right, title or interest in the property located at 10 Weather-vane Road, Aston, Pennsylvania and granting appellee, Beverly Miller, all title, rights and interest in said property as the surviving joint tenant. Appellants present the following question for our review: is a joint tenant’s conveyance of his interest in realty by deed to a fiduciary, an act of sufficient manifestation to sever the tenancy? Appellants’ Brief at 3. For the following reasons, we quash this appeal.

The relevant facts are as follows. Approximately two weeks after the death of his first wife, William Sherwood executed a deed conveying title to 10 Weathervane Road to himself and his daughter, Beverly Miller (appellee), as joint tenants with right of survivorship. On May 12, 1989, in an effort to sever the joint tenancy, Sherwood and his attorney (hereinafter “Keller”) entered into an agreement (hereinafter the “Straw Party Agreement”) whereby Sherwood delivered a quitclaim deed to Keller who immediately conveyed the property back to Sherwood. Pursuant to the Straw Party Agreement, the deed did not convey to Keller any right, title or interest in the property.

On February 18, 1989, Sherwood died testate, leaving his entire estate, including both real and personal property to his wife, Eleanor Kraemer. On August 18,1989, appellee brought an action for declaratory judgment requesting the court to determine whether Sherwood’s conveyance to his attorney severed the joint tenancy. Appellants were served notice of the action and, subsequently, timely filed their answer. On July 1, 1990, the parties stipulated and agreed to all relevant facts. On March 20,1992, the trial court entered a decree nisi declaring that appellants had no interest in the property and all rights in the property were vested in appellee as the surviving joint tenant. No post-trial motions were filed and on April 30, 1992, appellee filed a praecipe to enter the decree nisi as a final judgment. Appellants’ notice of appeal to the Superior Court was filed on May 22, 1992.

Because appellants’ have failed to timely file post-trial motions to the trial court’s decree nisi, this appeal must be quashed. Pa.R.Civ.P. 227.1(c)(2) provides:

(c) Post-trial motions shall be filed within ten days after
(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial. Id.

It is well-settled that where there is a trial without jury upon stipulated facts submitted for the .decision of the court, a party must file post-trial motions pursuant to Rule 227.1(c) to preserve any right of appeal. See McCormick v. Northeastern Bank, 522 Pa. 251, 254, 561 A.2d 328, 330 (1989) (“The decision of the trial court [following the submission of a case on stipulated facts] is considered to be similar to a verdict in a jury trial from which the aggrieved party must file a motion for post-trial relief pursuant to Pa.R.Civ.P.Rule 227.1, in order to preserve disputed issues for appellate review.”). See also Clearfield Bank v. Am. Mfrs. Mut. Ins. Co., 344 Pa.Super. 588, 497 A.2d 247 (1985).

However, where the parties submit an agreed statement of facts for the entry of judgment by the court, the judgment is considered final and the parties must appeal within thirty days of the judgment without filing post-trial motions. See Wertz v. Anderson, 352 Pa.Super. 572, 577, 508 A.2d 1218, 1220 (1986) (where the parties request the court to enter judgment upon a stipulated set of facts, post-trial motions are not proper and an immediate appeal must be taken), appeal denied, 514 Pa. 625, 522 A.2d 51 (1987). Accordingly, we must ascertain whether the parties’ stipulation of facts was submitted to the trial court for a decision which is subject to exceptions or for entry of final judgment.

This court has considered several factors in making such a determination: (1) whether the parties actually intended that the court enter a decision or a judgment, Clearfield Bank v. Am. Mfrs., 344 Pa.Super. 588, 497 A.2d 247; (2) the parties’ instructions to the trial court, Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218; and (3) whether the trial court rendered a decision subject to exceptions or entered final judgment, id. In the case at bar, the record reveals no request by the parties that the court enter a final judgment. Rather, the parties directed the trial court to decide the matter based upon the stipulated facts. Stipulation of Facts, July 1,1991, at 2 (emphasis added) (“The court will decide this matter based upon the above facts and the submitted briefs.”). Moreover, the trial court filed a decree nisi rather than a final judgment. Hence, we find that the facts were submitted for the decision of the trial court to which post-trial motions must be filed.

Nonetheless, appellants contend that as the judge made no findings of fact, the proceedings in the case at issue did not constitute a trial and appellants were not required to file post-trial motions. We disagree.

In its Note to Pa.R.Civ.P. 227.1(c), the General Assembly provides, in pertinent part:

A motion for post-trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial.

Id. (emphasis added). See also Coco Bros., Inc. v. Bd. of Pub. Educ. of the School Dist. of Pgh., 530 Pa. 309, 311, 608 A.2d 1035, 1036 (1992).

This court has always considered an adjudication based upon a stipulated set of facts to constitute a trial and subject to Rule 227.1(c). See McCormick v. Northeastern Bank, 522 Pa. 251, 561 A.2d 328 (1989); Wertz v. Anderson, 352 Pa.Super. at 577, 508 A.2d at 1221 (“[T]he appeal before us ... is from a trial without jury upon stipulation of facts.”); Clearfield Bank v. Am. Mfrs., 344 Pa.Super. 588, 497 A.2d 247 (1985); Frankel v. Reliance Mut. Life Ins. Co. of Ill., 199 Pa.Super. 295, 184 A.2d 305 (1962). Hence, appellants’ argument is without merit.

Since appellants failed to file post-trial motions within ten days of the decree nisi as required under Rule 227.1(c), the order of the trial court is final and we must quash this appeal. See McCormick v. Northeastern Bank, 522 Pa. at 254, 561 A.2d at 330 (“Those issues not raised in a motion for post-trial relief following a trial on an agreed stipulation of facts are deemed waived.”).

Appeal quashed.

      . A decree nisi is a provisional decree which becomes final on motion of a party unless cause is shown against it.

      . Black’s Dictionary defines a trial as a "judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction.” Black’s Law Dictionary 1504 (6th ed. 1990) (emphasis added).


text:
    621 A.2d 1036
    NEWTOWN VILLAGE PARTNERSHIP v. Martin E. KIMMEL and Sherry Bogarde, H/W, Appellants v. NEWTOWN VILLAGE PARTNERSHIP and William L. Meritz.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed March 16, 1993.

      Robert L. Seigle, Southampton, for appellants.
    Robert J. Kupits, Newton, for appellees.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the May 8, 1992 order sustaining appellee William Meritz’s preliminary objections and dismissing appellants’ complaint against additional defendant William L. Meritz. Appellants, Martin Kimmel and Sherry Bogarde, raise one issue on appeal:

Are the Defendants in a mortgage foreclosure action brought by Plaintiff Partnership prohibited from joining a principal of the Partnership and an Additional Defendant upon Defendants’ allegations of fraud, deceit and misrepresentations in the mortgage inducement which are essentially the same as those averred in the Counterclaim against Plaintiff Partnership?

Appellants’ Brief at 3. For the following reasons, we affirm.

Newtown Village Partnership (“Newtown”) initiated an action to foreclose the mortgage dated December 22,1989, given by appellants as mortgagors to Newtown. The mortgage was secured by appellants’ residence at 251 Yellow Springs Court, Yardley, Bucks County. Appellants filed an answer with new matter and a counterclaim against Newtown alleging misrepresentations by Newtown. In addition, appellants filed a complaint against appellee, William L. Meritz, an officer/partner of Newtown as an additional defendant in which they sought damages as a result of alleged misrepresentations made by appellee to appellants. Appellee responded by filing preliminary objections asserting that appellants’ complaint against appellee was in violation of Pa.R.Civ.P. 1141(a). The trial court sustained appellee’s preliminary objections and dismissed the complaint against appellee. This timely appeal followed.

In reviewing an order sustaining preliminary objections in the nature of a demurrer, all material facts set forth in the complaint and all inferences reasonably deducible therefrom are admitted as true. Eckell v. Wilson, 409 Pa.Super. 132, 135, 597 A.2d 696, 698 (1991). A demurrer should be sustained only in cases in which the plaintiff has failed to state a claim on which relief may be granted. Id.

Pennsylvania Rules of Civil Procedure 1141-50 govern actions for mortgage foreclosure. Rule 1141(a) provides that an action at law to foreclose a mortgage upon any estate, leasehold or interest in land shall not include an action to enforce a personal liability. It is well-established that an action in mortgage foreclosure is strictly in rem and thus may not include an in personam action to enforce personal liability. Insilco Corp. v. Rayburn, 374 Pa.Super. 382, 368, 543 A.2d 120, 123 (1988); Signal Consumer Discount Co. v. Babuscio, 257 Pa.Super. 101, 109, 390 A.2d 266, 270 (1978). This restriction is equally applicable to a mortgagee and a mortgagor. Id.

Moreover, this court has held that because a mortgage foreclosure action is strictly “de terris” in nature, neither a mortgagee-plaintiff nor a mortgagor-defendant can join a party who has no interest in the controverted property. Signal Consumer Discount Co., 257 Pa.Super. at 108, 390 A.2d at 270. In Signal Consumer Discount Co., the mortgagor attempted to join an additional defendant based upon that party’s failure to pay monthly loan obligations under the provisions of a disability insurance policy which the mortgagee was required to purchase. The mortgage was conditioned upon the purchase of such a policy. We concluded that the Pennsylvania Rules of Civil Procedure do not permit a defendant in a mortgage foreclosure action to join an additional defendant whose purported liability to either the original defendant or the mortgagee is based upon an assumpsit claim. Id. at 109, 390 A.2d at 270.

Although the rules permit a counterclaim against Newtown, the mortgagee, they do not permit an in personam action against, appellee, a party with no interest in the property. Appellants concede that a literal interpretation of the rules of civil procedure would preclude their joinder of appellee. Nevertheless, appellants argue that the rules ought to be relaxed in situations where, as here, “fraud, misrepresentation and deceit are pleaded on facts that are inextricably associated with the inducement of the mortgage, and aver sole, several or liability over ... [and] where the Additional Defendant sought to be joined is the General Managing Partner of Plaintiff-Mortgagee Partnership.” Appellant’s Brief at 9.

However, appellants’ argument is in conflict with this court’s holding in Signal Consumer Discount Co. which stood for the broad proposition that the Pennsylvania Rules of Civil Procedure do not permit a defendant in a mortgage foreclosure action to join an additional defendant whose purported liability to either the original defendant or the mortgagee is based upon an in personam claim. Moreover, in Signal, the mortgagor/defendant alleged a business relationship between the mortgagee and additional defendant in which the mortgagee purportedly acted as an agent of the additional defendant. This court affirmed the dismissal of the complaint notwithstanding that relationship. Thus, appellants’ attempt to distinguish the instant case based on the existence of a special relationship between the Newton and appellee must fail. Additionally, appellants’ argument that their counterclaim sounding in tort is somehow distinguishable from one in assumpsit must fail as both actions are in personam.

For all the foregoing reasons, we affirm the order sustaining appellants’ preliminary objections and dismissing the complaint against appellee.

Affirmed.

      . We note that we have jurisdiction to entertain this appeal because an order sustaining preliminary objections and dismissing a complaint against an additional defendant is a final and appealable order. See Alexander v. Mastercraft Constr. Co., 455 Pa. 579, 317 A.2d 278 (1974); Lamoree v. Penn Central Transp. Co., 238 Pa.Super. 380, 357 A.2d 595 (1976).

      . Appellants rely on a Court of Common Pleas case, Peoples Savings Association v. Whallin, 14 Pa.D. & C.3d 136 (1980) for the proposition that joinder of an additional defendant is proper, in the interests of judicial economy, where the "counterclaim is factually inextricably tied up with the mortgage and the alleged default thereon.” However, after reviewing Peoples Savings Association we find the decision to be in conflict with our holding in Signal.