author:
PER CURIAM:
      OLSZEWSKI, Judge,

text:
    657 A.2d 40
    COMMONWEALTH of Pennsylvania v. Leonard SOTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1994.
    Filed April 17, 1995.
    Michael F. Medway, Philadelphia, for appellant.
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   PER CURIAM:

Judgment of sentence affirmed in part and vacated in part.

Jurisdiction relinquished.

OLSZEWSKI, J., filed a concurring opinion.

OLSZEWSKI, Judge,

concurring.

If a homicide defendant raises the theory of self-defense, the Commonwealth must disprove that theory beyond a reasonable doubt. Commonwealth v. Samuel, 527 Pa. 298, 302-03, 590 A.2d 1245, 1247 (1991); Commonwealth v. Carbone, 524 Pa. 551, 560-62, 574 A.2d 584, 589 (1990); Commonwealth v. Hill, 427 Pa.Super. 440, 443-45, 629 A.2d 949, 951 (1993). This can be done by proving any one of the following: 1) defendant did not reasonably believe both that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force to prevent such harm; 2) defendant was not free from fault in provoking the difficulty which culminated in the'killing; or 3) defendant violated a duty to retreat. Id.; Commonwealth v. Gonzales, 415 Pa.Super. 564, 568-70, 609 A.2d 1368, 1370 (1992). On the facts of the present case, the trial court and the majority found that the Commonwealth sufficiently disproved self-defense. After careful review, I reluctantly concur with the majority that the Commonwealth has met its burden. I feel it necessary, however, to explain my hesitancy to affirm in light of the circumstances of this case.

The trial court found that Soto’s beliefs regarding the danger at issue and the necessity of using deadly force were unreasonable. In examining a defendant’s belief about the need to use deadly force in self-defense, a court must consider both a subjective and an objective component. Hill, 427 Pa.Super. at 445-47, 629 A.2d at 952. “First, the defendant must have acted out of an honest, bona fide belief that he was in imminent danger. Second, the belief must be reasonable in light of the facts as they appeared to him. The first element is entirely subjective; the second element is entirely objective.” Id. It is the second, objective element that the trial court found lacking in this case. Opinion, 3/18/94 at 3.

A number of factors are relevant when determining the reasonableness of defendant’s belief that the use of deadly force was necessary in order to protect himself from death or serious bodily injury. Among the factors that have been considered in prior cases are whether the decedent was armed, the existence of actual physical contact, size and strength disparities between the parties, prior dealings between the parties, threatening or menacing actions on the part of the decedent, and general circumstances surrounding the incident. E.g., Commonwealth v. Eberle, 474 Pa. 548, 555-57, 379 A.2d 90, 94 (1977); Commonwealth v. Light, 458 Pa. 328, 335-36, 326 A.2d 288, 293 (1974); Commonwealth v. Grove, 363 Pa.Super. 328, 335-37, 526 A.2d 369, 373 (1987), appeal denied, 517 Pa. 630, 539 A.2d 810 (1987).

Evidence indicating that the decedent was unarmed does not require a per se finding of unreasonable belief. See Commonwealth v. Watson, 494 Pa. 467, 472-74, 431 A.2d 949, 952 (1981); Eberle, 474 Pa. at 555-57, 379 A.2d at 94; Grove, 363 Pa.Super. at 335-37, 526 A.2d at 373; Commonwealth v. Zenyuh, 307 Pa.Super. 253, 256-58, 453 A.2d 338, 340 (1982). But see Commonwealth v. McClain, 402 Pa.Super. 636, 641-45, 587 A.2d 798, 801-02 (1991), appeal denied, 528 Pa. 636, 598 A.2d 993 (1991) (implying the existence of a per se rule by finding defendant’s belief unreasonable after simply noting that the decedent was unarmed). An individual does not need a weapon to inflict death or serious bodily injury upon another person. There are countless ways to use one’s natural “weapons”, such as hands and feet, to severely injure or kill. Thus, it may be entirely reasonable to fear death or serious bodily injury at the hands of an unarmed attacker. Depending upon the circumstances, it may also be entirely reasonable for a defendant to believe that he must use deadly force to save himself from such danger. Therefore, I do not subscribe to the view that any one factor can require an automatic finding of unreasonableness. All of the factors that would be considered by a reasonable person in the defendant’s situation must be taken into account.

When we, as judges, consider these factors, we must also remember that the defendant did not have the opportunity, as we now do, to sit and carefully reflect on the reasonableness of a given course of action. Rather, defendant had to weigh and evaluate these factors and make a split-second decision in the middle of an explosive and highly charged situation. As Justice Oliver Wendell Holmes, Jr. noted, “the law does not require detached reflection in the presence of an upraised knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921). See also Grove, 363 Pa.Super. at 335-37, 526 A.2d at 373 (citing above passage from Brown). Therefore, a court must be careful not to examine the reasonableness of a defendant’s belief with the 20/20 clarity of hindsight. The inquiry must be what a reasonable person in the defendant’s situation would have believed at the time.

In this case, the trial court found the following facts: The decedent, Duamel Santiago, drove his car onto the sidewalk and up to the steps of appellant Soto’s house. As Santiago began screaming obscenities, Soto opened his bedroom window and hollered at Santiago to pull the car back. Santiago then threatened Soto and his wife, continued to holler obscenities, and began to smash the windows of his own car. This prompted Soto to go downstairs, retrieve a gun, and open the front door. As Soto opened the door, Santiago continued to scream threats at Soto and his wife and started to advance upon Soto. Soto backed up into his house and fired one shot at Santiago, who had advanced onto the steps in front of the house. Santiago was drunk and unarmed at the time.

• While it is true, as the trial court notes, that Santiago was unarmed, I do not find this factor to be dispositive. Santiago had crashed his car in front of Soto’s house, threatened Soto and his wife, thrown a violent tantrum on his own car, and advanced upon an armed Soto standing in the doorway of his own home. This combination of verbal threats, violent displays, and a sudden menacing advancement toward Soto’s house could give rise to a reasonable fear of death or serious bodily injury. See Eberle, 474 Pa. at 555-57, 379 A.2d at 94 (finding reasonable belief where defendant shot unarmed decedent who entered defendant’s apartment drunk and uninvited, smashed and tore down bookshelves, and then lunged at defendant).

In addition to a reasonable fear of death or serious bodily injury, Soto must also have had a reasonable belief that it was necessary to kill to avoid the harm. On this point, the trial court noted that Soto could have simply “shut the door.” Opinion, 3/18/94 at 3. I am not as convinced as the trial court, however, that a reasonable person would have believed that safety could be achieved merely by shutting the door.

In its statement of the facts, the trial court indicated that Santiago was on the front steps leading to Soto’s door at the time of the shooting. Id. Since testimony established that the end of the top step was two feet from the door, and that there were only three steps leading up to the door, it is evident that Soto and Santiago were not far apart when the shooting occurred. N.T. 12/15/93 at 10-14. Moreover, evidence introduced at trial indicated that the gunshot wound was inflicted at close range. The County Medical Examiner’s report put the distance between Santiago and the end of the gun at six inches to two feet. Medical Examiner’s Postmortem Report, Exhibit C-17 at 3. This also indicates that Santiago was very close to Soto at the time of the shooting. In such a case, I am not as certain as the trial court that a reasonable person, making a split-second decision, would believe that the door could be shut in time. Therefore, I do not believe that the Commonwealth has proven beyond a reasonable doubt that Soto was unreasonable in believing that he needed to use deadly force to save himself from death or serious bodily injury.

The trial court also implied that Soto violated a duty to retreat. An individual does not have a duty to retreat in his or her own dwelling, even if such retreat could be safely accomplished. 18 Pa.C.S.A. § 505(b)(2)(ii)(A); Eberle, 474 Pa. at 555-57, 379 A.2d at 94; Commonwealth v. Ehrsam, 355 Pa.Super. 40, 57-59, 512 A.2d 1199, 1208 (1986), appeal denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989), habeas corpus denied, 917 F.2d 764 (3d Cir.1990), rehearing denied, cert. denied, 499 U.S. 926, 111 S.Ct. 1324, 113 L.Ed.2d 257 (1991). In its statement of the facts, the trial court indicated that Soto, who had initially been standing in his doorway, “backed up into his house and fired one shot.” Opinion, 3/18/94 at 1 (emphasis added). Since Soto was inside his home, he had no duty to retreat any further. Moreover, Soto did not violate any duty by failing to close the door after he retreated into the house. The law is clear that once an individual is in his dwelling, he need not retreat any further, even if it could be done safely. Once Soto stood inside his house, he was entitled to stand his ground and repel any attacking force.

This determination that Soto did not have a duty to retreat is not altered by the fact that the danger threatening Soto was outside of the house. The statutory language regarding the duty to retreat states that “the actor is not obliged to retreat from his dwelling.” 18 Pa.C.S.A. § 505(b)(2)(ii)(A). This language illustrates that it is the actor’s placement that is relevant, not the danger’s location. So long as defendant is in his home, he has no duty to retreat from imminent danger, regardless of whether the danger is in the home with him or outside. See State v. Bonano, 59 N.J. 515, 284 A.2d 345 (1971) (finding no duty to retreat where defendant standing at the threshold of his home shot an assailant coming up the front porch steps). Cf. Commonwealth v. Hunter, 381 Pa.Super. 606, 614-16, 554 A.2d 550, 554 (1989) (finding a violation of a duty to retreat where defendant chose to go outside to confront danger).

Lastly, I must address the provocation issue, which the trial court in this case did not address. The concept of provocation is not one that can be set out in a concise, easy-to-apply rule. Generally, an individual is not entitled to claim self-defense unless he or she is free from fault in provoking or continuing the difficulty which culminated in the slaying. E.g., Samuel, 527 Pa. at 302-03, 590 A.2d at 1247; Commonwealth v. Butler, 516 Pa. 522, 524-26, 533 A.2d 992, 993 (1987). In Samuel, our Supreme Court applied the statutory language in 18 Pa.C.S.A. § 505(b)(2)(i) and stated that a defendant is free from fault unless he or she provokes or continues a conflict with the intent of causing death or serious bodily injury. 527 Pa. at 302-03, 590 A.2d at 1247. This standard requires more than simple provocation before a party loses the right to self-defense. It seems to take away the right of self-defense only if a defendant: a) provoked or continued the conflict; and b) did so with the plan, hope, knowledge, or reasonable suspicion that death or serious bodily injury would result.

Applying this standard to the instant case, I must conclude that Soto impermissibly provoked and/or continued the altercation of October 23, 1991. After hearing the crash in front of his house, Soto was quickly able to determine its cause and to appraise himself of the possible risks to his family and his home. Notwithstanding the fact that Santiago was not attempting to gain entry to Soto’s home, Soto felt it necessary to arm himself, open his front door, and confront the problem. While the law does not require individuals to cower inside their homes, it does require reasonable and measured reactions. The appropriate reaction in this case would have been to call the police. By arming himself and going to the door to join the fracas, Soto further provoked and continued an unnecessary conflict, and he did so with at least a reasonable suspicion that the situation would escalate to the point where death or serious bodily injury would likely result. See Commonwealth v. Bayard, 453 Pa. 506, 510-12, 309 A.2d 579, 582 (1973) (charging defendant with impermissible provocation where defendant left the safety of a carnival to meet rivals in an alley in order to participate in a gang fight); Commonwealth v. Walker, 447 Pa. 146, 148-50, 288 A.2d 741, 743 (1972) (finding impermissible provocation and continuation where defendant was not the initial aggressor, but armed himself after the initial confrontation was over and returned to shoot the original aggressor); Commonwealth v. Minoff, 363 Pa. 287, 291-93, 69 A.2d 145, 148 (1949) (denying self-defense where defendant acted voluntarily to join a quarrel, and stating that “[t]he situation in which he thereafter found himself was of his own choice and making; and he is criminally responsible for the consequences of his conduct.”); Commonwealth v. Correa, 437 Pa.Super. 1, 3, 648 A.2d 1199, 1203 (1994) (finding impermissible provocation where defendant taunted decedent from safety and then armed himself, went to common area of apartment, opened locked door, and confronted decedent); Commonwealth v. Jones, 231 Pa.Super. 300, 302-06, 332 A.2d 464, 466 (1974) (finding impermissible provocation where defendant armed himself and left his home to confront angry youths who were throwing stones and other items at his house).

Ultimately, the issue of the defendant’s role in the events leading up to the slaying boils down to a question of reasonableness, which allows courts to consider all of the events surrounding the homicide, and to assign the role of aggressor to the proper party at the proper time. In this case, it was simply unreasonable under all of the circumstances for Soto to arm himself, open his door, and confront Santiago.

This case presented a number of “close calls” and highlighted the competing interests in self-defense cases. The essence of self-defense is that at some point, the party being assailed reaches the belief that “it’s him or me.” Before this Court will sanction that belief, we ask a number of questions designed to foreclose the ability to resort to deadly force too soon, while still protecting the ability to act before it is too late. This is no simple task.

This already difficult task becomes more so when additional social concerns are added to the mix. One such concern is the sanctity of a person’s home. People have the right to expect safety and security within the confines of their home and the law of self-defense must recognize this right. The United States Supreme Court, quoting from the English common law, wrote:

That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and although the life of a man is a thing precious and favoured in law; so that although a man kills another in his defence, or kills one per infortun’, without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law has to a man’s life; but if thieves come to a man’s house to rob him, or murder, and the owner of [sic?] his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing, and therewith agree 3 E 3. Coron 303, & 305, & 26 Ass pl 23. So it is held in 21 H 7. 39. every one may assemble his friends and neighbours to defend his house against violence: but he cannot assemble them to go with him to the market, or elsewhere for his safeguard against violence: and the reason of all this is, because domus sua cuique est tutissimum refugium.

Payton v. New York, 445 U.S. 573, 597 n. 44, 100 S.Ct. 1371, 1385 n. 44, 63 L.Ed.2d 639, 657 n. 44 (1980) (quoting Semayne’s Case, 5 CoRep 91a, 91b, 77 EngRep 194, 195 (KB 1603)). This passage illustrates that the nature of a self-defense claim changes when the incident at issue occurred in the home. Thus, while the law always seeks to discourage and minimize the use of deadly force, it cannot ignore the additional concerns present when a person is assailed in his or her home.

In light of the increasing prevalence of crime in our society, all of these concerns take on added importance. It is even more important today that deadly force not become the method of choice for resolving disputes. Yet, it is also of added importance that citizens be allowed to defend themselves, especially inside the home. After considering all of these issues as they apply to the present case, I must concur that the Commonwealth has proven that Soto did not act in self-defense when he shot Santiago on October 23, 1991. Notwithstanding my great respect for the the Honorable David N. Savitt and his well-written opinion in the proceeding below, I felt that it was important to write this concurring opinion in order to clarify certain aspects of the law of self-defense and offer guidance to the bench and bar, as well as to the general public. By clearly explaining the reasons for my conclusion in this case, it is my hope that the important concerns underlying the law of self-defense will not be overlooked.

      . Even though there is no violation of a duty to retreat for failing to close the door, there could be a violation of the reasonable belief requirement if the evidence clearly showed that the door could have been closed safely. As discussed earlier, there is no such evidence in the instant case.

      . Once again, this determination on the issue of a duty to retreat does not dispense with the requirement of a reasonable belief that deadly force is necessary to avoid death or serious bodily injury. If an outside danger does not reasonably pose a threat of death or serious bodily injury, or if it is not reasonable for a defendant in his home to believe it is necessary to kill an outside attacker to avoid death or serious bodily injury, then a defendant will not be allowed to avail himself of the justification of self-defense. See Commonwealth v. Harris, 444 Pa. 515, 516-17, 281 A.2d 879, 880 (1971) (rejecting claim of self-defense for defendant who shot milkman through closed front door after hearing a noise; the basis for the decision regarding this outside danger was defendant’s unreasonable belief, not any violation of a duty to retreat).

      . The fact that Soto was the first to introduce a weapon into the situation does not automatically mean that he is guilty of provocation. Samuel, 527 Pa. at 302-03, 590 A.2d at 1247. It is the circumstances under which the weapon is produced and the manner in which it is handled that determines whether the act is impermissibly provocative. Id.

      . Since Santiago was on a public sidewalk after the crash, Soto cannot defend his initial response as a reasonable defense of property. Cf. Commonwealth v. Johnston, 438 Pa. 485, 488-90, 263 A.2d 376, 379 (1970) (holding that a homeowner or business owner does not become a provoker by simply exercising his or her legal rights to remove trespassers from the property); Commonwealth v. Birch, 434 Pa.Super. 575, 580-582, 644 A.2d 759, 762 (1994) (same); Commonwealth v. Young, 271 Pa.Super. 59, 64-65, 412 A.2d 159, 162 (1979) (same).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    657 A.2d 496
    Darlene ARTHUR v. Carol KUCHAR and Debra Spaeder Appeal of Carol Ruchar (Two Cases.) Darlene ARTHUR v. Carol KUCHAR and Debra Spaeder Appeal of Debra Spaeder (Two Cases.)
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed Feb. 13, 1995.
    Reargument Denied April 25, 1995.

      Gary A. Falatovich, Greensburg, for Carol Kuchar.
    James D. Elder, Pittsburgh, for Debra Spaeder.
    H. Reginald Belden, Jr., Greensburg, for Darlene Arthur.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   CAVANAUGH, Judge:

This matter is presently before the court on the appeals of Carol Kuchar and Debra Spaeder from the orders of March 31, 1994 and April 6, 1994 of the Court of Common Pleas of Westmoreland County. For the reasons which follow, we affirm, in part, and vacate and remand, in part.

Appellee Darlene Arthur was injured in an automobile accident on May 22, 1987. She filed complaints against appellant Spaeder on October 6, 1987 and appellant Kuchar on August 24, 1989. These actions were consolidated for trial. At the first trial in this matter, held between June 1, 1992 and June 9, 1992, the jury returned a verdict in favor of appellants Spaeder and Kuchar. Ms. Arthur filed post-trial motions which were granted on March 17, 1993 when the trial court ordered a new trial. The second trial concluded on October 13, 1993 when the jury returned a verdict in favor of the appellee in the (molded) amount of $48,248.00. Appellants herein did not appeal that award. Appellee subsequently requested the assessment of delay damages and a bill of costs which the trial court decided by orders of March 31, 1994 and April 6, 1994. This appeal concerns those decisions.

While phrased somewhat differently, both appellants present substantially the same issues before this court. Appellant Spaeder frames her issues as:

I. Whether the trial court erred in awarding delay damages to the appellee, Darlene M. Arthur, pursuant to Pa.R.C.P. 238 for the period prior to March 17, 1993, where the defendant/appellant made a combined settlement offer to appellee prior to and during the trial, the jury at the conclusion of the trial returned a verdict in favor of the defendant/appellant, and the appellee was not granted a new trial until March 17, 1993.
II. Whether the trial court erred in awarding appellee costs relating to the stenographic transcription of the videotaped depositions of witnesses pursuant to Westmoreland County Rule W-609.

Appellant Kuchar raises the following issues:

I. Whether the trial court erred in awarding appellee costs relating to the stenographic transcription of the videotaped depositions of Doctors Boyle and MacPhail under Westmoreland County Rule W-609.
II. Whether the trial court erred in awarding delay damages to the appellee, Darlene M. Arthur, pursuant to Pa.R.C.P. 238 where the defendants/appellants had made a combined offer of Eighty-Five Thousand and 00/100 ($85,000.00) Dollars to Arthur prior to the time of trial, said offer being kept in effect to the time of trial and the jury at the conclusion of such trial returned a verdict in favor of the defendants in the case.
III. Whether the trial court committed error in failing to exclude from the calculation of delay damages the period of time between the entry of the verdict in favor of the defendants following the first trial of this matter on June 9, 1992 until the date on which the appellee was granted a new trial by the court below on March 17, 1993.

We first address Spaeder’s Issue I and Kuchar’s Issues II and III concerning the trial court’s April 6, 1994 award of delay damages.

Pa.R.C.P. 238 provides for damages for delay to be added to compensatory damages in an action for bodily injury, death or property damage. Pa.R.C.P. 238(a)(2)(i) provides that if the action was commenced prior to August 1, 1989, delay damages are to be awarded from the date the complaint was filed, or from a date one year after the cause of action accrued, whichever is later.

The present action accrued on May 22, 1987. A complaint was filed against Debra Spaeder on October 6, 1987. Accordingly, delay damages began to run against appellant Spaeder on May 22, 1988, one year after the accrual of the cause of action. Because a writ of summons was not issued against Carol Kuchar until May 12,1989, and a complaint was not filed against her until August 24, 1989, delay damages against appellant Kuchar did not begin to run until August 24, 1989.

The court below assessed delay damages against the appellants for the period when Debra Spaeder was the sole liable defendant and for the period after Carol Kuchar had been joined in the action. Accordingly, the court assessed damages against Debra Spaeder, individually, from May 22, 1988 (the action accrued on May 22, 1987) through August 23, 1990; and against Debra Spaeder and Carol Kuchar, jointly and severally, from August 24, 1990 through October 13, 1993. (We note that delay damages against appellants Spaeder and Kuchar, jointly and severally, should have run from August 24, 1989, the date a complaint was filed against appellant Kuchar, not one year after the complaint was filed.)

In this appeal, appellant Spaeder claims the court erred in awarding delay damages for any period prior to March 17, 1993 (when appellee was granted a new trial), in that settlement offers were made prior to and during the first trial and that trial resulted in a jury verdict in favor of appellants. Appellant Kuchar raises the same claim and also argues that the court erred in failing to exclude the time between June 9, 1992 (when appellants were verdict winners in the first trial) and March 17,1993 (when a new trial was granted) in calculating delay damages.

At a plaintiffs request, delay damages are awarded against a defendant found liable to the plaintiff in an action for personal injuries. The purposes justifying such an award are two; to alleviate delay in the courts, and to encourage the settlement of meritorious claims. Jazbinsek v. Chang, 416 Pa.Super. 300, 611 A.2d 227, 230 (1992). However, pursuant to Pa.R.C.P. 238(b)(1), a “defendant may exclude the assessment of damages for periods of time after which he has made a written offer of settlement which is not exceeded by 125% of the verdict or for periods during which the plaintiff has caused the delay.” Krysmalski v. Tarasovich, 424 Pa.Super. 121, 137, 622 A.2d 298, 306 (1993). Here, no party has claimed that the plaintiff/appellee caused any delay in the proceedings. Appellants do claim, however, that since they extended settlement offers to plaintiff, the time prior to the grant of a new trial should be excluded.

In considering this argument the trial court concluded that appellants were entitled to no diminution of damages in that all settlement offers were made orally, and Rule 238 requires that they be made in writing to toll the damage period. We note, however, that the appellants did make an offer of settlement, on the record, which was subsequently transcribed and is part of the record sent to this court. (See: N.T. 168-171) This offer to settle the lawsuit for the sum of $85,000 was communicated by the appellants on June 3, 1992, while trial was ongoing, and was rejected by the appellee. On June 9, 1992 the jury returned a verdict in appellants favor.

In our view the trial court erred in finding no offer which satisfied the requirement of a “writing” pursuant to Rule 238(b)(1). In the case before us the appellants made to appellee an on the record offer, before the trial judge, which offer was later transcribed. Such an offer is clearly the functional equivalent of a written offer and satisfies that requirement of Rule 238. However, we also note that pursuant to that rule such an offer excludes from delay damage calculations only that period of time after the offer is made, not the entire pre-trial period. Accordingly, the judge should have excluded from the delay damage calculation the period of time from June 3, 1992, when the offer was made, through June 9, 1992, when the first trial concluded.

Appellants also argue that there should be excluded from delay damages that period of time between the verdict in the first trial and the grant of a new trial.

Our research has revealed no reported appellate caselaw directly addressing this issue; prior caselaw regarding the tolling of delay damages during the appeals period is, however, instructive.

In Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 508 A.2d 298 (1986), alloc. denied, 514 Pa. 617, 521 A.2d 932 (1987) the trial court excluded delay damages from the date in which the court entered a compulsory nonsuit in defendants’ favor through the date on which the Superior Court remanded for retrial. On appeal from the damage computation this court affirmed the trial court, stating that the defendant

was entitled to rely on the validity of the compulsory nonsuit entered by the trial court. Only after it had been vacated and the case remanded for trial did the defense return to its original status of uncertainty. At that time the purpose of Rule 238 became once again applicable. The trial court did not err when it excluded from its calculations the period between the entry of the compulsory nonsuit in Dravo’s favor and the vacating of the judgment of nonsuit by the appellate court.

Id. 352 Pa.Super. at 378-379, 508 A.2d at 308.

In Beary v. Container General Corporation, 368 Pa.Super. 61, 533 A.2d 716 (1987), alloc. denied, 520 Pa. 586, 551 A.2d 213 (1988) this court, citing Hawthorne for the proposition that during an appeal period a verdict winner is entitled to rely on the judgment, concluded that “any delay during the appellate process is not a matter for the trial court to consider when assessing delay damages under Rule 238.” Beary at 83, 533 A.2d at 727.

The reasoning of those cases is applicable to the issue before us today. In our view the appellants were entitled to rely on their favorable verdict until such time as the trial court granted appellee a new trial. It was only at that point that appellants were again exposed to possible liability. Accordingly, we find that the trial court erred when it did not remove from the computation of delay damages the period from June 9, 1992 through March 17, 1993. This matter must therefore be remanded back to the trial court for recomputation of delay damages.

Lastly, we address appellants’ argument that the trial court erred in awarding costs relating to the stenographic transcriptions of videotaped depositions of two witnesses.

Pursuant to Westmoreland County Rule W-609(a)(3) fees paid to court reporters for an original and one copy of depositions are considered record costs in a case. Appellee submitted a proposed bill of costs which included fees incurred as a result of transcribing videotaped depositions of two of appellee’s treating physicians. The trial court ordered that the appellants pay for the deposition transcripts of the two physicians in the total amount of $309.35.

Both appellants appealed this order claiming that the case of Guido v. Greensburg Salem School District, 7 D & C 3d 73 (1978) specifically excludes payment for any expenses associated with a videotape deposition. We have reviewed the cited case as well as the opinion of the trial court which explained its refusal to follow the precedent of Guido in that Guido interpreted local rule W-609 in light of Pa.R.C.P. 4017.1 which has since been modified. Specifically, rule 4017.1(a)(2) “Videotape Depositions” now mandates that a videotaped deposition may be used in court only if accompanied by a transcript of the deposition. Therefore, the court’s refusal to follow the precedent of Guido, since that case was decided before the amendment of the state rule, was not error and does not require the reversal of the order of March 31, 1994.

Accordingly, the order of March 31, 1994 is affirmed. The order of April 6, 1994 is vacated and this matter is remanded to the trial court for proceedings consistent with this decision.

Jurisdiction is relinquished.


author: OLSZEWSKI, Judge: JOHNSON, Judge,

text:
    657 A.2d 499
    Sylvester McCRORY, Appellant v. Jack W. ABRAHAM, Jr. and Sharon Smith, Administrator of the Estate of Jack Wilson Abraham, Appellees.
    Superior Court of Pennsylvania.
    Argued Dee. 1, 1994.
    Filed March 9, 1995.
    Reargument Denied May 22, 1995.

      Justine Gudenas, Philadelphia, for appellant.
    Michelle H. Young, Philadelphia, for appellees.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   OLSZEWSKI, Judge:

On May 1, 1989, appellant Sylvester McCrory was crossing State Route 940 in Paradise Township, Monroe County when he was struck by an automobile. Appellee Jack W. Abraham, Jr., owner and operator of the automobile, asserted that he did not see anything in the roadway as he approached. Two other pedestrians were also struck by Abraham’s vehicle, one of whom died from his injuries. McCrory was treated by emergency personnel at the scene and later taken to Mt. Pocono Medical Center. He spent eleven days at the hospital before he was discharged.

McCrory filed a complaint against Abraham in August 1990 in Philadelphia County. Subsequently, Abraham died and McCrory filed an amended complaint naming Abraham’s estate as defendant. Pursuant to Pa.R.C.P. 1006(a), Abraham’s estate (hereinafter Abraham) filed preliminary objections seeking to quash service and alleging that venue was improper. These objections were denied by the Honorable Nicholas D’Alessandro. On February 4, 1994, Abraham filed a petition for change of venue pursuant to Pa.R.C.P. 1006(d)(1) in order to move the trial to Monroe County. Abraham’s 1006(d)(1) petition was granted by the Honorable Russell Nigro. This appeal followed.

McCrory claims that the trial court erred in granting Abraham’s petition to change venue under Pa.R.C.P. 1006(d)(1). A trial judge has great discretion in reviewing petitions to change venue on the basis of forum non conveniens. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 241-43, 579 A.2d 1282, 1284 (1990); Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 585-87, 538 A.2d 889, 891 (1988); Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 81, 461 A.2d 805, 806 (1983). On appeal, we need only determine whether the trial judge abused that discretion. Purcell, 525 Pa. at 241-43, 579 A.2d at 1284; Brown, 371 Pa.Super. at 585-87, 538 A.2d at 891. It is not enough to persuade an appellate court that it might have reached a different conclusion. Mackarus’s Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968); Brown, 371 Pa.Super. at 585-87, 538 A.2d at 891. Instead, an appellant must show that “in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will... . ” Id. (quoting In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 316, 142 A.2d 292, 294 (1958)).

A trial judge should begin the forum non conveniens analysis by giving plaintiffs choice of forum great weight. Scribner v. Mack Trucks, 427 Pa.Super. 71, 76-78, 628 A.2d 435, 438 (1993), allocatur denied, 537 Pa. 623, 641 A.2d 588 (1994); Brown, 371 Pa.Super. at 585-87, 538 A.2d at 891; Korn v. Marvin Fives Food Equipment, 362 Pa.Super. 559, 562-64, 524 A.2d 1380, 1382 (1987). A plaintiff should not be deprived of that choice unless a defendant establishes that the original forum is oppressive or vexatious and out of proportion with the plaintiffs convenience, or inappropriate based on the court’s own weighing of private and public interest factors. Scribner, 427 Pa.Super. at 74-76, 628 A.2d at 437.

While plaintiffs choice of forum is important, it is not absolute. Id. In determining whether to grant a change, a trial court should consider certain factors that affect the private interests of the parties, such as:

[T]he relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, -witnesses; possibility of view of premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be a question as to the enforceability of a judgment if one is obtained.

Id. (citing Rini v. N. Y. Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968)). A court must also consider certain factors that affect the public interest, such as:

Administrative difficulties [that] follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty [that] is ... imposed upon the people of a community which has no relation to the litigation.

Id. If the balance of these factors strongly favor the .defendant, plaintiffs choice may be disturbed. Id.

In the instant case, McCrory initially filed suit in Philadelphia County. This choice is accorded significant weight, but it is not absolute.

In terms of personal factors, the trial court found that the accident occurred in Monroe County, the investigation was handled by the State Police in Monroe County, most of the fact witnesses reside in or near Monroe County, and McCrory received emergency and in-patient medical care in Monroe County. These facts indicate that most of the practical factors that make a trial easy, expeditious, and inexpensive point toward Monroe County. The access to sources of proof, the cost and ease of obtaining witnesses, and a possible view of the premises are all made substantially easier by a trial in Monroe County. The only witnesses that reside in Philadelphia County are the other surviving pedestrian, and McCrory’s damage witnesses: his family, friends, and subsequent medical care providers. While these damage witnesses may be important, McCrory must first prove that Abraham was negligent. In trying to prove negligence, the fact witnesses will be most important. As noted before, all of the fact witnesses, except for McCrory and the other surviving pedestrian, live in or near Monroe County. In light of these facts, we agree with the trial court that the personal factors weigh heavily in favor of Monroe County.

In terms of public factors, the trial court found that Philadelphia County’s interest in the suit was minimal. Once again, the accident took place in Monroe County and most of the witnesses and emergency personnel reside in or near Monroe County. Abraham lived in Monroe County at the time of the accident and up until the time of his death. McCrory was working and possibly living in Monroe County at the time of the accident. Philadelphia County’s only interest in the litigation stems from the fact that McCrory and the other surviving pedestrian now reside in Philadelphia, and that McCrory’s subsequent medical care providers are located in Philadelphia County. While these are relevant contacts, they are not substantial and may not justify adding to the court congestion in Philadelphia County and burdening a Philadelphia County jury with a suit in which it has a very minimal interest. Therefore, while the examination of the public factors is less conclusive, it still favors Monroe County.

After reviewing the record and the trial court’s findings, we cannot say the trial court committed an abuse of discretion in transferring this action to Monroe County. The private factors weigh heavily in favor of Monroe County because the scene of the accident and most of the key fact witnesses are located in Monroe County. While the public factors do not weigh conclusively either way, there is enough evidence for the trial court to find that the scales do tip toward Monroe County. Additionally, the Monroe County forum will not work any appreciable inconvenience on either party. Abraham’s estate representative is coming from Illinois, so he will not be inconvenienced by the change. Although McCrory lives in Philadelphia County, the trial court believed that any inconvenience caused by forcing McCrory to travel was outweighed by the substantial. inconvenience established by Abraham. Based on our review of the evidence, we find no abuse of discretion in allowing this venue change to Monroe County.

We are aware that the trial court’s factual findings were made without the benefit of either sworn depositions or an evidentiary hearing. Our review of the parties’ pleadings and memoranda, however, indicates that the only disputed fact was McCrory’s residence at the time of the accident. While the dissent paraphrases from the parties’ pleadings to illustrate points of dispute, a careful look will reveal that the only dispute is over the “spin” to be put on the undisputed facts.' The following facts are not disputed by either party: 1) the accident occurred in Monroe County; 2) McCrory was working in Monroe County at the time of the accident; 3) Abraham lived in Monroe County at the time of the accident; 4) McCrory received emergency care from Barrett Township (Monroe County) ambulance personnel at the scene; 5) the accident was investigated by the state police in Monroe County; 6) the police report revealed six witnesses to the accident, five of whom live in Monroe County. The sixth witness lived in adjoining Luzerne County; 7) McCrory received in-patient medical care at Mt. Pocono Medical Center in Monroe County; and 8) McCrory, the other surviving pedestrian, and McCrory’s damage witnesses reside in Philadelphia County. See trial court opinion 5/18/94; brief for appellant; brief for appellee.

Based on these undisputed facts, counsel for Abraham argued in his petition to transfer that all of the important witnesses resided in Monroe County and none resided in Philadelphia County. Counsel for McCrory denied those allegations. These attorneys are clearly trying to place the evidence before the court in the light most favorable to their respective clients. This advocacy does not, however, put the evidence itself in dispute. A trial court does not abuse its discretion by looking deeper than the parties’ pleadings and examining their briefs in support of their pleadings to determine if facts are actually in dispute. Such an examination here reveals that McCrory’s residence at the time of the accident is the only disputed fact. Since we believe that the other undisputed facts provide a sufficient and reliable basis for the trial court’s decision, we are satisfied that neither deposition testimony nor a hearing was required in this case. See Vogel, 370 Pa.Super. at 319-21, 536 A.2d at 425.

McCrory’s next claim is that a change in venue is not proper because he is African-American and would likely not get a jury of his racial peers in the predominantly white Monroe County. McCrory fails, however, to offer any support for the proposition that the racial composition of a community or a jury should be a factor in a court’s decision to change venue based on forum non conveniens. All qualified jurors are equal before the law. We see no legally cognizable reason to presume that one class of jurors is more desirable or capable than another. If a party believes that certain classes of jurors will render a more favorable verdict, that is a matter of trial strategy, not the law. Courts do not participate in such decisions, nor should they. Equal protection forbids courts from giving credence to a party’s racial preferences in seating a jury. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

In an effort to support his assertion that a community’s racial composition should be taken into account in a forum non conveniens analysis, McCrory offers only a general citation to Edmonson, supra. Edmonson, however, dealt only with the use of race-based peremptory challenges and did not engage in an analysis of forum non conveniens. Id. If anything, Edmonson indicates that race should not be a factor in such an analysis by cautioning that “[i]f our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.” Id. at 630-31, 111 S.Ct. at 2088, 114 L.Ed.2d at 680. When McCrory asserts that he should only be tried in a county with a certain percentage of black residents, implying that he will get a more fair or more favorable verdict from black jurors, he is himself engaging in racial stereotyping. Such assertions are not only harmful to our continued progress toward a multiracial society, they are also irrelevant to a forum non conveniens analysis.

In civil cases, we simply start with the presumption that the plaintiff chooses his or her forum, and a defendant must then offer weighty reasons to justify a transfer of venue. While we sympathize with any plaintiff who has a strategic forum choice disturbed by a venue change, we must remain race-neutral in considering the motion to transfer. Thus, we see no reason why the racial composition of a venue should ever be taken into account in a forum non conveniens analysis.

McCrory finally asserts that Judge Nigro’s order granting a change in venue dealt with the same issues as Judge D’Alessandro’s order denying that venue was improper, and that the second order should be controlled by the first. He also claims that Judge Nigro improperly overruled Judge D’AIessandro.

McCrory’s claims are without merit, as the two orders dealt with completely different issues. Judge D’Alessandro was presented with a Rule 1006(a) objection to proper venue. After examining the facts, Judge D’Alessandro correctly found that venue was proper in Philadelphia County. In contrast, Judge Nigro was presented with a petition for change of venue on the basis of forum non conveniens under Rule 1006(d)(1). Under Rule 1006(d)(1), the petitioner is not relitigating or challenging whether venue was proper where the suit was originally brought; rather, the petitioner is asserting that while venue is proper, there is another proper, and more convenient, forum where the suit should be litigated. Pa.R.C.P. 1006(d)(1); United States Stor. Corp. v. City of Philadelphia, 431 Pa. 411, 418-20, 246 A.2d 386, 390 (1968) (“Rule 1006(d) cannot apply to the case where the venue is wrongly laid; this is separately regulated by Rule 1006(a)....”); Scribner, 427 Pa.Super. at 76-78, 628 A.2d at 438 (transfer of suit under 1006(d) allowed even where original venue was proper under 1006(a)). As the two orders dealt with completely different issues, they did not conflict and one did not serve to overrule the other.

Our review of McCrory’s claims convinces us that the trial judge correctly disposed of the issues.

Order affirmed.

Dissenting opinion by JOHNSON, J.

JOHNSON, Judge,

dissenting:

Where facts alleged in the transfer petition were expressly denied in the Answer to the petition, I believe that the trial court abused its discretion in transferring this matter without benefit of deposition testimony or an evidentiary hearing on disputed issues of material fact. However, even if the taking of evidence was not required, I cannot agree that a change of venue is necessary for the convenience of the parties and witnesses. Accordingly, I must respectfully dissent.

A plaintiffs choice of forum is entitled to weighty consideration and should not be disturbed

“unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own private and public interest factors’ [but] unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

Okkerse v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 832 (1989), quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 159 (3d Cir.1980).

When evaluating a motion for change of venue, a trial court should consider matters affecting the private interests of the litigants, including: the ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; the possibility of viewing the premises if appropriate to the action; and all other practical problems that make a trial easy, expeditious, and inexpensive. Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992). In addition, the court must consider matters in which the public has an interest, including court congestion and the imposition of jury duty upon the people of a community with no relation to the litigation. Id.

Rule 1006(d) of the Pennsylvania Rules of Civil Procedure vests a trial judge with considerable discretion in determining whether to grant a petition for change of venue. Id. Absent an abuse of discretion, the trial court’s decision must stand. Id. However,

“if the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated. Discretion must be exercised within the applicable standards. The district court’s wide discretion may not serve the defendants as a burden shifting device on appeal from an order in their favor.”

Petty v. Suburban Gen. Hosp., 363 Pa.Super. 277, 282-83, 525 A.2d 1230, 1232-33 (1987), quoting Reyno, supra, 630 F.2d at 160.

The party seeking a change of venue bears the heavy burden of proving that the change is necessary. Petty, at 283, 525 A.2d at 1233. Pursuant to Hosiery Corp. of America, Inc. v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984), “a proper procedure under Rule 1006(d) necessarily implicates the requirements for petition and answer set forth in Pa.R.Civ.P. Rules 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact.” Moreover, the trial court must find that the transfer is more convenient for both parties to the action or for the witnesses. Petty, supra, 363 Pa.Super. 277, 525 A.2d 1230.

Applying the above principles to the present case, I am constrained to conclude that the trial court abused its discretion in transferring this action to Monroe County.

In its petition for transfer, the Estate of Jack Wilson Abraham (the Estate) alleged, in pertinent part, that: Sylvester McCrory both worked and resided in Monroe County at the time of the alleged accident; Jack Wilson Abraham (decedent) resided in Monroe County at the time of the accident and prior to his death; the administration of decedent’s estate was opened in Monroe County; the accident and police investigation occurred in Monroe County; McCrory received emergency medical care in Monroe County; all fact witnesses reside in or near Monroe County; no potential witnesses reside in Philadelphia County; transfer of this action to Monroe County will be more convenient for all witnesses; unnecessary hardship and inconvenience will be cast on both defendant and witnesses if this action remains in Philadelphia; the jury will need to view the accident site located in Monroe County; and the facts demonstrate that the action should be transferred to Monroe County.

While McCrory, in his Answer to the Estate’s transfer petition, admitted certain facts, he denied that: he resided in Monroe County at the time of the accident; all fact witnesses resided in Monroe County; and no potential witnesses reside in Philadelphia County. He further denied all of the Estate’s allegations concerning the inconvenience and hardship cast on the defendant and witnesses. Finally, McCrory denied that a view of the accident site was needed and that the action should be transferred. McCrory also alleged that most of his witnesses live in Philadelphia County. As a result, I cannot agree with the Majority’s statement that the only disputed fact was McCrory’s residence at the time of the accident. See Majority op. at 264. Clearly, there are several disputed material facts.

Contrary to the rule set forth in Hosiery Corp., supra, 327 Pa.Super. 472, 476 A.2d 50, the trial court granted the transfer without taking evidence, by deposition or otherwise, on disputed issues of fact. I cannot sanction the transfer of this matter based on the Estate’s mere allegation that it will promote the convenience of parties and witnesses where that allegation was specifically denied by McCrory. The trial court had no evidence that this transfer would promote the convenience of the parties or witnesses.

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

Petty, supra, 363 Pa.Super. at 285, 525 A.2d at 1234, quoting Reyno, supra, 630 F.2d at 160-61. Here, the trial judge, without any discussion of such a showing, granted the Estate’s motion to transfer solely on the basis of the pleadings and the various memoranda of law in support of and opposed to the transfer.

The Estate presented no evidence that a transfer of this action would best serve the convenience of the parties or witnesses. I cannot agree with the Majority that the undisputed facts provide a sufficient and reliable basis for the trial court’s decision. See Majority op. at 265. Rather, as stated above, I find that the trial judge had no reliable information to use in weighing the convenience of the parties and witnesses. As a result, I would conclude that the trial court abused its discretion by granting the transfer motion. I would reverse the order granting the petition to transfer venue. Petty v. Suburban Gen. Hosp., supra, 363 Pa.Super. 286, 525 A.2d 1234.

Even if we assume that the taking of evidence was not required in this case, after weighing the elements affecting the private and public interests, I am still unable to conclude that the balance strongly favored transferring this action to Monroe County. Therefore, I cannot agree that a change of venue is necessary for the convenience of the parties and witnesses.

With regard to the private interest factors, the trial court determined that all of the crucial events underlying this cause of action occurred in Monroe County. Trial Court Opinion, filed May 26, 1994, at 4. The court based this determination upon the following: the accident occurred in Monroe County; McCrory resided in Monroe County at the time of the accident; decedent resided in Monroe County at the time of the accident and until his death; the police investigation occurred in Monroe County; most potential witnesses reside in or near Monroe County; and McCrory received emergency medical care in Monroe County. Id

However, I am unable to agree that all “crucial” contacts focus upon Monroe County. First, McCrory resided in Philadelphia County when the Estate filed the petition to transfer. Moreover, there is no evidence of record to support the court’s conclusion that McCrory resided in Monroe County at the time of the accident. Next, I find it absurd that the trial court would place weight upon decedent’s residence when balancing the convenience of the chosen forum for the parties or the witnesses. I cannot believe that trial of this case in Philadelphia County will inconvenience decedent! Finally, while some potential witnesses may reside in or near Monroe County, I find that perhaps the two most important witnesses, McCrory and the only other surviving victim of the accident, reside in Philadelphia County. In addition, McCrory’s damage witnesses, including his subsequent medical care providers, are located in Philadelphia County. As a result, when I weigh the competing private interest factors, I am unable to find that the balance strongly favors Monroe County.

Next, the trial court addressed the public interest factors, finding that Philadelphia County’s interest in the suit was minimal. Opinion, supra, at 4-5. I recognize that jury duty should not be imposed upon members of a community having no relation to the litigation. Incollingo, supra. However, as noted above, not only does McCrory reside in Philadelphia County, but the only other surviving victim of the accident resides there as well. Once again, I believe that they are perhaps the two most important witnesses in this case. Therefore, I cannot agree with the trial court that Philadelphia County’s interest in this suit is minimal or that the public interest factors favor Monroe County.

Based upon my review, I conclude that the trial court abused its discretion in determining that the balance was tipped strongly in favor transferring this action to Monroe County and that the transfer was necessary for the convenience of the parties and witnesses. Accordingly, I dissent. I would reverse the order granting the Estate’s petition to transfer this matter to Monroe County.

      . We do not know why appellee waited three years to file this petition to change venue. At oral argument, appellee's counsel stubbornly refused to offer any explanation for this delay. Since no action was taken on this case in Philadelphia prior to the transfer, we will not factor this delay against appellee here. See Turner v. Kohl, 420 Pa.Super. 507, 510-12, 617 A.2d 20, 22 (1992) (Kelly, J., concurring) (stating that timeliness of the petition should be a factor where a case was already listed for trial and discovery had already been completed in the initial forum). We do believe that such a delay is unfair, however, and counsel would be well-advised to take prompter action in the future.

      . Pa.R.C.P. 1006(d)(1) provides: "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.”

      . We note this fact only to emphasize that Monroe County’s interest in this suit is much more significant than Philadelphia's interest, and not, as the dissent suggests, to assert that trial in Monroe County would be more convenient for a deceased party. See Dissent op. at 506.

      . While the trial judge found that McCrory was living in Monroe County at the time of the accident, McCrory asserts that he has lived in Philadelphia County all along. He claims that he only worked temporarily in Monroe County. Since the trial court has not pointed us to the place in the record where McCroty’s residence was established, we hesitate to call it a determined fact. This disputed fact, however, is not essential to the decision as the record contains sufficient undisputed facts to find that Monroe County is the more convenient forum. See Vogel v. National Railroad Passenger Corp., 370 Pa.Super. 315, 319-21, 536 A.2d 422, 425 (1988).


author: OLSZEWSKI, Judge:

text:
    657 A.2d 507
    COMMONWEALTH of Pennsylvania v. Van WELLS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed March 15, 1995.
    Reargument Denied May 18, 1995.

      Jay Meyers, Philadelphia, for appellant.
    Jonathan W. Hugg, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI, and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

On October 3, 1993, at around 10:00 a.m., the Philadelphia Police Department received a call that a woman had been abducted off of the streets of West Philadelphia and spirited away in a dark brown or burgundy Ford or Chevrolet. N.T. 2/2/94 at 9. Within two to four minutes of receiving the call, two police officers in a van observed a vehicle fitting the description approximately one-half mile from the site of the alleged abduction. Id. at 10-11. The police pulled over the vehicle. Inside was a male driver and a male passenger, but no woman. Id. at 12. Believing that if this were the car in question, the occupants would have had time to secrete the woman, the police continued their investigation by ordering the driver out of the vehicle. Id. at 45. Police Officer Shawn Wilson patted down the driver, appellant Van Wells. After the pat-down search, Officer Wilson looked down onto the front seat of appellant’s vehicle. As the car door was still open, Officer Wilson had a clear view of the driver’s-side area. Id. at 14. On the front seat where Wells had been sitting only moments earlier, Officer Wilson observed a plastic supermarket bag. Id. The officer could see orange-tinted packets and a ziplock bag containing a white chunky substance inside the bag. Amended opinion 8/9/94 at 4. Upon further inspection, Officer Wilson also discovered in the bag fifty unused clear vials. N.T. 2/2/94 at 19. Wells was arrested, tried, and convicted of violating the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P.S. §§ 780-113(a)(16) and (a)(30).

Appellant raises thirteen issues on appeal. The trial court correctly and succinctly restated the issues to be whether: (1) the suppression court was incorrect in holding that the evidence gained from the search of the bag is admissible; (2) the evidence was insufficient to support a conviction, beyond a reasonable doubt, of possession of a controlled substance with intent to deliver; (3) appellant was a victim of selective prosecution; and (4) the sentence was excessive. Amended opinion 8/9/94 at 3.

In our review of a ruling of a suppression court, we determine whether the factual findings are supported by the record. Commonwealth v. Kilgore, 437 Pa.Super. 491, 495, 650 A.2d 462, 464 (1994). When appellant is the defendant, we consider the prosecution’s evidence and only so much of appellant’s evidence as remains uncontradicted. Id. We will reverse only when the ensuing legal conclusions are erroneous. Id.

“In order for a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have articulable and reasonable grounds to suspect, or probable cause to believe, that criminal activity may be afoot.” Commonwealth v. Lopez, 415 Pa.Super. 252, 258-59, 609 A.2d 177, 180 (citations omitted), allocatur denied, 533 Pa. 598, 617 A.2d 1273 (1992). In this case, the match between the suspect car and appellant’s vehicle, as well as the proximity of the latter to the time and location of the abduction, gave the police reasonable grounds to suspect criminal activity. Under these circumstances, the stop of the vehicle was warranted. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989).

In addition, the warrantless search of the vehicle and seizure of the bag was valid under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, rehearing denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Under the plain view doctrine, evidence can be seized without a warrant when:

(1) the initial intrusion is lawful — the officer does not violate the Fourth Amendment in arriving at the place from which the evidence is lawfully viewed;
(2) the incriminating character of the object is immediately apparent; and
(3) the officer has a lawful right of access to the object.

Commonwealth v. Grimes, 436 Pa.Super. 535, 542, 648 A.2d 538, 542 (1994) (citations and footnote omitted).

Here, we have already established that the stop of the vehicle was proper. The officer looked into the vehicle and casually observed the supermarket bag on the seat where appellant had only recently been sitting. This observation was possible because appellant had left the door of the car open. In that bag the officer noticed packets containing white powder believed to be cocaine. We believe that this observation justified a search and seizure of the bag.

Next, appellant argues that the evidence was insufficient to sustain a guilty verdict. Our standard of review of such claims is as follows:

The test to be applied is whether, viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Davis, 437 Pa.Super. 471, 475, 650 A.2d 452, 454 (1994) (quoting Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989)). Appellant argues that testimony that he possessed the drugs with an intent to deliver was “so evasive and unclear as to not make it worthy of belief.” Appellant’s brief at IS. His sufficiency of the evidence claim must fail for two reasons. First, we “must honor and recognize the right and obligation of the trier of fact to believe all, part or none of the evidence.” Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986). Second, any challenges to the credibility of witnesses are more properly addressed with weight of the evidence challenges, and not with a remonstration of the sufficiency of the evidence. Commonwealth v. Pirela, 398 Pa.Super. 76, 83, 580 A.2d 848, 852 (1990), allocatur denied, 527 Pa. 672, 594 A.2d 658 (1991).

Next, we turn to the issue of selective prosecution. Appellant claims that he was impermissibly selected for prosecution, given that the passenger, Leonard Davis, was never charged with committing any offenses. It is appellant’s burden to establish a prima facie case of selective prosecution. United States v. Henderson, 584 F.Supp. 1037 (D.C.Pa.), appeal dismissed, 751 F.2d 377 (3rd Cir.1984). Because of the doctrine of separation of powers, we will not lightly interfere with an executive’s decision of whom she will prosecute. Id., 584 F.Supp. at 1038. Prosecutorial discretion in deciding which cases should be moved forward is not unfettered, however, but is subject to constitutional constraints. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). To make out a case of selective prosecution, appellant must establish, at minimum, that: (1) he has been singled out for prosecution even though others similarly situated have not generally been proceeded against, despite having engaged in conduct akin to that of which appellant is accused, and (2) he has been selected for prosecution as the result of “such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.” Henderson, 584 F.Supp. at 1038 (citing United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). “Unequal application of the criminal laws alone does not amount to a constitutional violation. United States v. Torquato, 602 F.2d 564, 568 (3rd Cir.1979).” United States v. Cinemette Corp. of America, 687 F.Supp. 976, 983 (W.D.Pa.1988).

In this case, both appellant and Davis are African-American. N.T. 2/2/94 at 33. We find no impermissible factors that engendered the prosecution of the former and the discharge of the latter. We agree with the trial court in finding that:

The Defendant ignores the fact that he was the owner and operator of the vehicle in which the drugs were found. He also neglects to consider that the open shopping bag with the drugs were located on the driver’s seat.... The reasonable inference from these facts is that the Defendant had just been sitting on the shopping bag and that it and the drugs belonged to him.
Moreover, the police released the passenger only after both men were detained, taken into custody, and at least the passenger, if not both men, strip searched. Not finding any incriminating evidence on the passenger, it was at that point that the Commonwealth exercised its prosecutorial discretion and charged only the Defendant with the drug violations. It is reasonable for the trial court to infer that the Commonwealth was of the opinion that the evidence warranted charging only the Defendant with the possession of the narcotics.

Amended opinion 8/9/94 at 14.

Finally, we address appellant’s claim that the sentence was too severe. The Honorable Nitza I. Quinones Alejandro imposed a sentence of one to two years in prison and a fine of five thousand dollars, with court costs. Id. at 2. Given that the sentence imposed is the statutorily mandated minimum under 18 Pa.C.S.A. § 7508(a)(3)(i), appellant’s sentence cannot be considered to be too severe.

Appellant nevertheless maintains that this sentence is too severe in light of his history, family life, and the fact that he poses no threat to the community. A review of the discretionary aspects of sentence is not a matter of right, but will only be entertained where this court is convinced that a substantial question exists that the sentence imposed is not appropriate under the Sentence Code. Commonwealth v. Urrutia, 439 Pa.Super. 227, 236-237, 653 A.2d 706, 710-11 (1995). “An allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. McKiel, 427 Pa.Super. 561, 629 A.2d 1012 (1993); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc).” Id.

Appellant has not raised any claim upon which relief can be granted. Accordingly, judgment of sentence is affirmed.

      . We note that this standard, under which the plain view exception to a warrantless search is applicable, eliminates the requirement that the initial observation of the contraband be unintended. Grimes, 436 Pa.Super. at 542 n. 2, 648 A.2d at 542 n. 2. The standard enunciated in Grimes adopted the requirements for the plain view doctrine laid out in Commonwealth v. McCullum, 529 Pa. 117, 132, 602 A.2d 313, 320 (1992). McCullum, in turn, cited with approval the plain view doctrine as articulated in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), which eliminated the inadvertence requirement. Id.

        Grimes also cited, as further authority for this new standard, Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). Parker, however, continued to espouse the old requirement that the “observation of the item must be inadvertent.” Id. at 402, 619 A.2d at 739 (citations omitted). In view of our positions in Grimes, as well as in Commonwealth v. Hendrix, 426 Pa.Super. 616, 622, 627 A.2d 1224, 1227 (1993) (deleting the inadvertence requirement from the plain view exception), we accede that the “ 'inadvertence’ requirement [is] unnecessary to insure the protection of Fourth Amendment rights.” Id.

      . Appellant raises various other claims that, in effect, challenge the sufficiency of the evidence. All ultimately rest on appellant’s impugning the credibility of in-court police testimony. Even if we were to look at a weight of the evidence claim, we review the decision not to grant a new trial upon an abuse of discretion standard. Commonwealth v. Pirela, 398 Pa.Super. 76, 83-84, 580 A.2d 848, 852 (1990). We will remand only when the record indicates that the evidence is so contrary to the verdict as to shock our sense of justice. See Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). There is nothing in the record in the instant case that comes close to shocking our sense of justice.

      . Appellant argues that he really should have been charged with mere possession, and not intent to deliver a controlled substance. This is really a sufficiency of the evidence claim that appellant fails to support. Undeveloped claims are deemed waived. See Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-02, 551 A.2d 1112, 1114 (1988). Similarly, appellant’s attack on the judiciousness of mandatory sentence statutes is equally undeveloped, cites to no authority, and is deemed waived.


author: CAVANAUGH, Judge. HUDOCK, Judge, WIEAND, Judge,

text:
    657 A.2d 511
    JOHNSTON THE FLORIST, INC., Appellant, v. TEDCO CONSTRUCTION CORPORATION and O’Neil Personal Care Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Dee. 6, 1994.
    Filed April 12, 1995.

      Victor H. Pribanic, White Oak, for appellant.
    Paul S. Kline, Pittsburgh, for appellees.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, HUDOCK and SAYLOR, JJ.
   CAVANAUGH, Judge.

This is an appeal by Johnston the Florist, Inc. from the October 20, 1993 order denying its motion for post-trial relief. For the following reasons, we affirm.

The facts were ably summarized by the trial court as follows:

On December 17, 1986 [Appellee TEDCO Construction Corporation] entered into a contract to build a personal care facility for [O’Neil Village Personal Care Corporation (O’Neil) ]. This was a project financed by the U.S. Department of Housing and Urban Development (HUD). Pursuant to HUD, the approved amount for landscaping totaled $20,000.00. Although TEDCO obtained estimates to accomplish this landscaping for the approximate amount that was approved by HUD, Ronald McKay, the owner’s principal, decided to expand the scope of landscaping and to deal directly with his own landscaping contractor. On behalf of O’Neil, Ronald McKay wanted to “beef up the landscaping,” and he dealt exclusively with his friend, client and neighbor — Earle Guffey, Chairman of Johnston the Florist, Inc.
During the Summer of 1987, Ron McKay, on behalf of the owner, and Earle Guffey, on behalf of Johnston the Florist, Inc., negotiated the scope and price of landscaping services for the personal care facility between themselves, with TEDCO not being involved. Johnston developed an estimate and submitted it to McKay and O’Neil, with nothing ever submitted to TEDCO. During the negotiations for, and the performance of, the contract for landscaping services, Johnston never wrote a letter to TEDCO outlining what was to be done, never gave TEDCO a breakdown concerning costs, never told TEDCO what the work was going to be and what it would look like, and never told TEDCO what would be involved in landscaping services.
Because the owner was handling its own landscaping work, TEDCO never submitted the name of a sub-contractor for landscaping work when it was seeking approval for its sub-contractors pursuant to HUD procedures. Indeed, TEDCO never checked or certified that the workers of Johnston were being paid the prevailing minimum wages under HUD guidelines because Johnston was not a subcontractor of TEDCO.
Beginning on August 18, 1987, Johnston began to deliver materials to the job site. Although there was no contract with TEDCO, these materials and others delivered on September 21 and September 23, 1987 were being delivered pursuant to a “landscaping bid” given by Johnston to the owner.
It was not until September 24, 1987 that Johnston submitted a detailed proposal to the owner alone for the scope of landscaping and its price. It is significant that this detailed proposal was submitted directly to the owner, O’Neil and Ronald McKay. This estimate was never provided to TED-CO.
During the course of the construction, TEDCO did not supervise the landscaping work being performed by Johnston and did nothing more than coordinate the activities of Johnston to ensure that its work did not interfere with TEDCO’s subcontractors. It was established that this degree of coordination and lack of supervision is typical of the construction industry practices when dealing with suppliers or contractors who contract directly with the owner.
When the project was finally completed in early November, 1987, Earle Guffey, as Chairman of Johnston the Florist, demanded payment from Ronald McKay as the owner, rather than from TEDCO. In a letter to Ronald McKay, Earle Guffey indicated that it was the owner, not TEDCO, who approved the work, directed it and agreed to pay for it.

Trial Court Opinion, at pp. 2-4.

On December 18, 1989, Johnston filed a complaint against TEDCO alleging that, as a result of an alleged landscaping contract entered into between TEDCO and Johnston, TEDCO owed Johnston a balance of $28,650.00. An amended complaint was thereafter filed on March 26, 1990, whereby Johnston added O’Neil as a defendant. By agreement of the parties, the matter was submitted to compulsory arbitration. An award of $28,650.00 was entered on June 12, 1992, in favor of Johnston. An appeal was filed by TEDCO in the Court of Common Pleas of Allegheny County. Following a non-jury trial, the Honorable Gerald Bigley found in favor of TEDCO. Johnston filed post-trial motions which were denied by an October 20,1993, order of the trial court. Following the entry of this order, an appeal was filed to this Court. This Court’s Central Legal Staff contacted Johnston notifying them that no judgment had been entered on the verdict and requesting that it file a praecipe for entry of judgment. No response was had from Johnston. In order to reexamine the holding of Bonavitacola v. Cluver, 422 Pa.Super. 556, 619 A.2d 1363 (1993), alloc. den., 535 Pa. 652, 634 A.2d 216, and to determine whether the merits of the case may be decided even without the entry of judgment, this matter was certified en banc.

Finally, on August 31, 1994, subsequent to this Court’s notification to the parties involved herein that this matter would be heard en banc, Johnston praeciped for the entry of judgment. Thus, even though the appeal was filed prior to the entry of judgment, it is clear that jurisdiction in appellate courts may be perfected after an appeal notice has been filed upon the docketing of a final judgment. See Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Arcadia Company, Inc. v. Peles, 395 Pa.Super. 203, 576 A.2d 1114 (1990). Such are the circumstances of the present matter. However, due to Johnston’s prior refusal to enter judgment upon notification to do so from this Court, the need arises to clarify this Court’s authority to address an appeal from an order upon which judgment has not been entered.

“Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court.” Grove North America v. Arrow Lift, 421 Pa.Super. 12, 17, 617 A.2d 369, 371 (1992). An appeal from an order denying post-trial motions is interlocutory. Pa.R.A.P. 301(a), (c) and (d). Thus, it follows that an appeal to this Court can only lie from judgments entered subsequent to the trial court’s disposition of any post-verdict motions, not from the order denying post-trial motions. Davanzo v. Finelli, 293 Pa.Super. 70, 437 A.2d 995 (1981). Because the entry of judgment was considered to be a prerequisite to the exercise of this Court’s jurisdiction, it was long this Court’s policy to quash an appeal from an order upon which judgment had not been entered. See Basalyga v, Hohensee, 431 Pa. 191, 245 A.2d 255 (1968); Enoch v. Reifer, 293 Pa.Super. 141, 437 A.2d 1245 (1981); Flossier v. Columbia Gas Transmission Corp., 294 Pa.Super. 86, 439 A.2d 762 (1982); Crosby v. Commonwealth, Dept. of Transp., 378 Pa.Super. 72, 548 A.2d 281 (1988), alloc. den., 522 Pa. 576, 559 A.2d 37 (1989).

However, in Bonavitacola v. Cluver, supra, 422 Pa.Super. 556, 619 A.2d 1363, a panel of this Court decided that it would not quash an appeal from an order denying post-trial motions, and would instead, in the interest of judicial economy, decide the merits of an appeal lying from the interlocutory order. In Bonavitacola, appellants filed an appeal from the trial court’s denial of their post-trial motions. Our Central Legal Staff advised appellants to enter judgment, however, such request was refused. Appellants, who were health professionals, stated that to praecipe for the entry of judgment would expose them to liability in excess of their medical insurance. Refusing the appellee’s motion to quash the appeal, this Court stated that the mandates of judicial economy required that the appeal be heard. This Court reasoned:

As long as the order from which a party appeals “was clearly intended to be a final pronouncement on the matters discussed in the opinion [accompanying the order], ... the appeal is properly before us and ... we have jurisdiction to address the parties’ claims.” Murphy v. Murphy, 410 Pa.Super. 146, 152, 599 A.2d 647, 650 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). The rationale behind treating this appeal as one from an entered judgment is to allow the appeal which is in progress to proceed, economizing judicial resources. [McCormick v. Northeastern Bank of PA, 522 Pa. 251, 561 A.2d 328 (1989); Summit Fasteners v. Harleysville Nat’l. Bank, 410 Pa.Super. 56, 599 A.2d 203 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992) ]. See also Murphy v. Murphy, [599 A.2d at 650]. Were we to quash an appeal from an order which, except for the entry of judgment, is otherwise final, we would expend judicial resources in the decision to quash, one of the parties would inevitably praecipe the prothonotary to enter judgment, and a subsequent appeal would be permitted to follow. See McCormick, supra, 522 Pa. 251, 561 A.2d 328 citing Commonwealth v. Allen, 278 Pa.Super. 501, 505 n. 3, 420 A.2d 653, 654 n. 3 (1980).

Bonavitacola, 422 Pa.Super. 563, 619 A.2d at 1367. See also McCormick, supra, 522 Pa. 251, 561 A.2d 328.

However, the law of this Commonwealth has long recognized that the entry of judgment is a jurisdictional matter. “The requirement that judgment be docketed is jurisdictional.” Murphy v. Brong, 321 Pa.Super. 340, 343, 468 A.2d 509, 511 (1983); Hilliard v. Hilliard, 295 Pa.Super. 317, 319, 441 A.2d 1251, 1252 (1982); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa.Super. 469, 470, 429 A.2d 34, 35 (1981); Gadbois v. Leb-Co Builders, Inc., 290 Pa.Super. 523, 525, 434 A.2d 1267, 1268 (1981); Coren v. DiDomenico, 291 Pa.Super. 331, 333, 435 A.2d 1252, 1253 (1981). Moreover, “the entry of judgment is a prerequisite to our exercise of jurisdiction.” Davanzo v. Finelli, 293 Pa.Super. 70, 72, 437 A.2d 995, 996 (1981); Firestone Tire & Rubber Co. v. W.P. Cooke, Inc., 289 Pa.Super. 333, 334, 433 A.2d 93 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 168, 427 A.2d 165, 166 (1981). See also 2 Goodrich-Amram 2d § 1038(b):1, at 501 1976). On the other hand there are some instances wherein a party has failed to enter judgment and our appellate courts may “regard as done that which ought to have been done.” McCormick v. Northeastern Bank of Pa., 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989); Summit Fasteners v. Harleysville Nat’l Bank, 410 Pa.Super. 56, 59 n. 1, 599 A.2d 203, 205 n. 1 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992); Commonwealth v. Allen, 278 Pa.Super. 501, 505 n. 3, 420 A.2d 653, 654 n. 3 (1980). However, in all of these above cited cases, the failure of the parties to enter judgment was the result of mere oversight, not outright refusal, as was the case in Bonavitacola, and which was the case here.

Pennsylvania Rule of Appellate Procedure 301(a) provides:

Rule 301. Requisites for an Appealable Order
(a) Entry Upon Docket Below. No order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court. Where under the applicable practice below an order is entered in two or more dockets, the order has been entered for the purposes of appeal when it has been entered in the first appropriate docket.

Pa.R.A.P. 301, 42 Pa.C.S. In the Note following the rule, it is added that “[t]he 1986 Amendment to Rule 301 states that no order shall be appealable until entered in the docket and deletes reference to reduction of an order to judgment as a prerequisite for appeal in every case. This deletion does not eliminate the requirement of reduction of an order to judgment in an appropriate case.” See Note, Pa.R.A.P. 301, 42 Pa.C.S. (emphasis added).

Based upon the clear jurisdictional imperative that judgment be entered as a prerequisite to the exercise of judicial review, we conclude that, in all such cases, there is no authority for this court to review the merits of such an appeal even in the face of a refusal by the parties to enter judgment. To the extent that Bonavitacola v. Cluver, 422 Pa.Super. 556, 619 A.2d 1363 (1993), alloc. den., 535 Pa. 652, 634 A.2d 216, would permit appellate review in the interest of judicial economy when the parties have refused to enter judgment, it is specifically disapproved.

Since judgment has now been entered, we will address the merits of Johnston’s appeal. Two issues are presented for our review: 1) whether an oral contract existed between TEDCO and Johnston; and 2) whether TEDCO may be held liable on a contract between Johnston and O’Neil.

Johnston first argues that it had an oral contract with TEDCO, and thus, TEDCO is liable to it for the unpaid amount of $28,500.00. In support of its position, Johnston stresses the importance of three “invoices” that were sent to TEDCO during the course of performance of the landscaping that indicated the materials used on the project were “Sold to Tedco.” At no time did TEDCO act on these invoices. Thus, Johnston avers that TEDCO’s silence as to these documents was its acceptance of the oral contract. In support of its argument, Johnston cites the Restatement (Second) of Contracts, section 69, which provides, in pertinent part:

(1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
(a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.

Restatement (Second) of Contracts § 69 (1977).

Before a contract can be found, all of the essential elements of the contract must exist. Therefore, in determining whether an agreement is enforceable, we must examine whether both parties have manifested an intent to be bound by the terms of the agreement, whether the terms are sufficiently definite, and whether consideration existed. If all three of these elements exist, the agreement shall be considered valid and binding. Burkett v. Allstate Insurance Co., 368 Pa.Super. 600, 534 A.2d 819 (1987), vacated on other grounds, 520 Pa. 94, 552 A.2d 1036 (1988). Furthermore, in the case of a disputed oral contract, what was said and done by the parties, as well as what was intended by what was said and done by the parties, are questions of fact to be resolved by the trier of fact, in this instance the trial court. Solomon v. Luna, 213 Pa.Super. 87, 246 A.2d 435 (1968). “The burden is on the plaintiff to prove by a preponderance of the evidence the existence of the contract to which the defendant is a party.” Viso v. Werner, 471 Pa. 42, 46, 369 A.2d 1185, 1187 (1977).

TEDCO, in support of its position that a contract for payment did not exist between the parties, relies upon the following facts of record: 1) the alleged “invoices” were not invoices for payment, but rather were merely delivery slips that indicated that certain materials had been delivered to the job site; 2) Johnston and O’Neil negotiated the landscaping contract and TEDCO had no knowledge of the terms of the contract, nor the costs; 3) HUD allowed only $20,000.00 for the landscaping and TEDCO was never aware that this amount had increased to $48,150.00; and 4) TEDCO did not supervise the progression of the landscaping.

The trial court, after reviewing all of the testimony, found that:

The evidence in this case overwhelmingly established that there was no oral or other contract between Johnston and TEDCO for the full landscaping services amounting to $48,150.00. The claim which [Johnston] pursued against TEDCO was the result of a contract for landscaping services provided by Johnston to the owner of the personal care facility, [O’Neil], and its principal, Ronald McKay. At all times during negotiations for, and performance of, landscaping services, [Johnston] dealt only with Ronald McKay and O’Neil and looked only to them for payment. It is clear that it was only after [O’Neil] encountered financial and other difficulties that Johnston turned its sights on TEDCO for payment.

Trial Court Opinion, at p. 5.

After our review of the evidence and the findings made by the trial court, we agree with the trial court’s conclusion that no oral contract existed between TEDCO and Johnston. Clearly, given the evidence presented, Johnston did not meet its burden of proving that an oral contract existed. Further, in rejecting Johnston’s claim that Restatement (Second) of Contracts § 69 is applicable, we cannot find that TEDCO accepted the alleged offer through silence. It is well settled that, “[sjilence will not constitute acceptance of an offer in the absence of a duty to speak.” Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 503, 450 A.2d 36, 39 (1982); Restatement (Second) of Contracts § 69. Also, section 69 cannot be satisfied in that we can find no proof of record that TEDCO had reason to know that Johnston performed its services with the expectation that TEDCO would compensate it. Thus, given the fact that TEDCO was not involved in the negotiations with Johnston, we can find no duty upon TEDCO to respond to the “invoices” that were sent to them, unsigned, by Johnston.

In the alternative, Johnston asserts that, assuming a contract existed between O’Neil and itself, TEDCO has assumed the responsibility to pay the remaining debt on the contract. The Statute of Frauds provides, in pertinent part,

§ 3. Promise to answer for debt of another
No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.

33 P.S. § 3. However, an exception to this rule exists where the “main purpose” or the “leading object” of the promisor (in the present case TEDCO) is to serve its own pecuniary or business purpose. Biller v. Ziegler, 406 Pa.Super. 1, 8, 593 A.2d 436, 440 (1991). Thus, Johnston alleges that since TED-CO was the general contractor who was responsible for the overall completion of the job with O’Neil, “completion of [Johnston’s] work not only advanced the pecuniary and business interests of [TEDCO], it was indeed essential for the final closing of the project, final payment to [TEDCO], and payment by [TEDCO] of the balance of the sub-contractors.” Johnston’s Brief, at p. 17.

As summarized in Biller,

The leading object rule applies whenever a promisor, in order to advance some pecuniary or business purpose of his own, purports to enter into an oral agreement even though that agreement may be in the form of a provision to pay the debt of another. [Thomas A. Armbruster, Inc. v. Barron, 341 Pa.Super. 409, 413, 491 A.2d 882, 884 (1985)], quoting Goodling v. Simon, 54 Pa.Super. 125, 127 (1913). Accord, Eastern Wood Products Co. v. Metz, 370 Pa. 636, 641, 89 A.2d 327, 330 (1952). As the Armbruster court explained, where the surety-promisor’s main purpose is his own primary or business advantage, the gratuitous or sentimental element often present in suretyship is eliminated. [Armbruster, 341 Pa.Super. 413, 491 A.2d at 884], Thus, there is less need for cautionary or evidentiary formality in the commercial context. Id. The determination as to whether a promisor’s main purpose for making a guaranty was to serve his own pecuniary or business ends is for the trier of fact, and will not be reversed absent abuse of discretion. Id., 341 Pa.Super. 413, 491 A.2d at [884].

Biller, 406 Pa.Super. 9, 593 A.2d at 440 (emphasis added).

TEDCO urges this Court not to address this issue because Johnston failed to raise the merits of this claim in its amended complaint. “It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court.” Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975). As contended, Johnston has not raised the merits of this issue in either its amended complaint or at trial. We note that the matter was raised in Johnston’s brief in support of its post-trial motions, but the merits were never addressed by the trial court. We agree, then, that the first time this issue is to be addressed is on appeal. Because the issue of whether TEDCO’s main purpose was to benefit itself is one for the trier of fact, this Court will not hear this matter. Moreover, as noted in our discussion of the first issue, TEDCO made no oral promises to Johnston.

Judgment affirmed.

WIEAND, J., files a concurring statement.

HUDOCK, J., files a concurring and dissenting opinion in which McEWEN, DEL SOLE and SAYLOR, JJ., join.

HUDOCK, Judge,

concurring and dissenting.

I join the majority in its disposition of the merits of this appeal. I also agree that while the belated entry of judgment by Appellant unquestionably gives this court jurisdiction, Appellant’s prior refusal to enter judgment upon notification to do so by this court requires this court to clarify our authority to address an appeal from an order upon which judgment has not been entered. My disagreement with the majority’s discussion of our authority under these circumstances results from my belief that we do have the authority to hear the appeal, while not being required to. I do not read Bonavitacola v. Cluver, supra, 422 Pa.Super. 556, 619 A.2d 1363, as mandating that we hear an appeal where judgment has not been entered. Rather I believe Bonavitacola leaves to our discretion whether or not to hear the appeal, and as thus interpreted, I concur with its holding.

The majority finds the entry of judgment to be a sine qua non to jurisdiction, yet it acknowledges that our Supreme Court has .found jurisdiction to exist in certain situations where judgment has not been entered. The rationale of the Court in those situations was that we may “regard as done that which ought to have been done.” McCormick v. Northeastern Bank of PA, supra, 522 Pa. 251, 561 A.2d 328. The majority distinguishes those cases on the basis that the failure to enter judgment was the result of oversight, not outright refusal as was the case in Bonavitacola and here.

But if, as the majority opines, entry of judgment is the sole and exclusive talisman creating jurisdiction, then the intent of the parties is irrelevant. Logically, the majority must hold that if there is a judgment, there is jurisdiction; if there is no judgment, there is no jurisdiction. Yet our Supreme Court has held otherwise in the very cases cited by the majority.

I believe our Supreme Court has authorized our court to overlook this defect in procedure when the interest of justice or judicial economy requires it, as with any other procedural defect.

McEWEN, DEL SOLE and SAYLOR, JJ„ join.

WIEAND, Judge,

concurring.

I join the majority’s holding that an order denying post-trial motions is not an order which is final and appealable and that an appeal will lie only from the judgment thereafter entered. In the instant case, judgment has now been entered; and, therefore, the appeal is presently before this court for decision.

On the merits, I agree that the judgment in favor of TEDCO Construction Corporation must be affirmed. The trial court’s finding that there was no agreement by TEDCO Construction Corporation to pay for work ordered by O’Neil Personal Care Corporation and performed by Johnston the Florist, Inc. is amply supported by competent evidence. Therefore, it is unnecessary to consider whether an oral agreement by TEDCO Construction Corporation to pay for such work, if it had existed, would have been enforceable under the Statute of Frauds relating to a promise to pay the debt of another.

      . The bill submitted to TEDCO from Johnston totaled $48,150.00. A sum of $19,500.00 had already been paid to Johnston.

      . Although the appropriate remedy upon the failure to enter judgment would ordinarily be to quash the appeal, we note that dismissal may also be an appropriate method of disposition. Pennsylvania Rule of Appellate Procedure 902 provides:
      Manner of Taking Appeal
      An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.
      Pa.R.A.P. 902, 42 Pa.C.S. In a comment to this Rule, it is provided:
      The 1986 revision to the last sentence of the rule indicates a change in approach to formal defects. The reference to dismissal of the appeal has been deleted in favor of a preference toward, remanding the matter to the lower court so that the omitted procedural step may be taken, thereby enabling the appellate court to reach the merits of the appeal. Nevertheless, dismissal of the appeal ultimately remains a possible alternative where counsel fails to take the necessary steps to comet the defect.

      Pa.R.A.P. 902, 42 Pa.C.S., Comment (emphasis added).