author: POPOVICH, Judge: JOHNSON, Judge,

text:
      435 A.2d 1236
    George ZVONIK, Jr. v. Andrew J. ZVONIK, Appellant. George ZVONIK, Jr. v. Anna ZVONIK, Andrew J. Zvonik and Pauline Zvonik, his wife, and Paul Zvonik, Appellants.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Oct. 2, 1981.
    Petition for Allowance of Appeal Denied May 3,1982.

      William F. Patterson, Johnstown, for appellants.
    James B. Yelovich, Somerset, for appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

These are consolidated appeals from an Order entered by the court en banc dismissing appellants’ exceptions to the Chancellor’s findings. For the reasons set forth below, we affirm the lower court’s Order.

It is settled that “ ‘the findings of fact of the [cjhancellor who heard the testimony without a jury, approved by the court en banc, are entitled to the weight of a jury’s verdict; that such findings are controlling and that the court’s decree should not be reversed unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence.’ ” (Citations omitted) Hankin v. Hankin, 279 Pa.Super. 179, 196, 420 A.2d 1090, 1099 (1980); accord Silo Realty Corp. v. Redevelopment Authority of The City of Philadelphia, 289 Pa.Super. 67, 432 A.2d 1053 (1981). The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand. Sorokin v. Krasner, 289 Pa.Super. 324, 433 A.2d 88 (1981); Kimball v. Barr Township, 249 Pa.Super. 420, 378 A.2d 366 (1977). “ ‘In such case, the party favored by the finding is entitled to have the evidence viewed in the light most favorable to him and to have all conflicts in the testimony resolved in his favor.’ ” (Citations omitted) Johnston Truck Rental Co. v. Fowler-McKee, 281 Pa.Super. 271, 274, 422 A.2d 164, 165 (1980). So viewed, the facts, as gleaned from the trial transcript, are as follows:

In 1972, George Zvonik-appellee orally agreed with Anna Zvonik, his mother, that he would provide the labor and materials to repair her home and construct a two-room addition thereto. Appellee also agreed to pay all the utilities and property taxes. The mother in turn promised that appellee and his family could live with her and that prior to her death she would convey the property to him. In reliance upon said agreement, appellee moved into the premises and sold lots that he owned to get some of the capital needed to make the improvements desired by the mother. (N.T. 2/26/79, at 61 & 65) Appellee’s wife also borrowed money ($200.....$300 from the credit union) to supplement what the appellee obtained. Id.

After the appellee substantially completed the work on the homestead, the mother conveyed the property by deed to her daughter-in-law, Pauline Zvonik-appellant (Pauline). Thereafter, Pauline instituted an action in ejectment and appellee relinquished possession of the property. With this action, family relations deteriorated; e. g., appellee was involved in an altercation with Pauline’s husband, Andrew Zvonik-appellant (Andrew), which led to the filing of criminal charges (Aggravated Assault). However, pursuant to a “stipulation” reached in open court on February 25,1974, the charges were nolle prossed. The parties agreed that an impartial building contractor would appraise the “fair value” of the work performed by the appellee; that Andrew would pay that amount and appellee would accept it in full and final compromise of his claim. (N.T. 2/25/74, at 2 -6) As agreed, a contractor (Lloyd Zimmerman) was selected by the appellee, and he submitted an appraisal on June 12, 1975 (delineating the cost of the work done) totaling $8,520.00. See note 7 infra. Andrew was supplied with the estimate but failed to pay the amount stated or any part thereof. Moreover, on May 29, 1975, Andrew and Pauline transferred the property in question to their son (Paul), but retained a life estate therein.

It was January 20, 1978, before the appellee took any legal recourse. At that time, he filed two Complaints in Assumpsit—No. 12 Civil 1978 and No. 13 Civil 1978—which resulted in rulings in his favor, and the exceptions filed therein were dismissed by the court en banc. This appeal followed.

No. 12 Civil 1978

Of the four individuals initially the object of this suit, only Pauline and Paul remain. The gravamen of their case, when distilled, is that the appellee failed to make out a cause of action for “unjust enrichment;” as a result, he should be barred from recovery. We conclude otherwise.

“[UJnder Pennsylvania law, the elements of a duty to make restitution under the theory of unjust enrichment require (1) an enrichment and (2) an injustice resulting if recovery for the enrichment is denied. See Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593 (1963).” Visor Builders, Inc. v. Devon E. Tranter, Inc., 470 F.Supp. 911 (M.D.Pa.1978); accord Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979); U. S. Gypsum Co. v. Schiavo Bros., Inc., 450 F.Supp. 1291 (E.D.Pa.1978). Furthermore, the most significant requirement for recovery on a quasi contract is that the enrichment to the defendant must be unjust, Myers-Macomber Engineers v. M.L.W. Construction Corp. and HNC Mortgage and Realty Investors, 271 Pa.Super. 484, 414 A.2d 357 (1979); the reason is that our courts focus not on the intention, but on the result of unjust enrichment. Gee v. Eberle, 279 Pa.Super. 127, 420 A.2d 1050 (1980).

We find that, based on all the evidence, the appellee is entitled to restitution for the services he rendered and the monies he expended on the property. A review of the relevant case law on this matter will disclose the basis for our position. For example: in Scott v. Purcell, 264 Pa.Super. 354, 399 A.2d 1088 (1979) the appellant proved the existence of an oral agreement whereby Purcell consented to act as his agent in buying a piece of property. Purcell, after several months of negotiations, succeeded in getting the parties to agree to a purchase price. However, shortly after Purcell informed appellant that he was having difficulty obtaining financing for the project, a deed from the seller to Oaklander Associates was recorded. Oaklander Associates consisted of Oakland Corp., of which Purcell was vice president and his wife and two others were shareholders.

Although the Court in Scott reversed the trial judge’s granting of a non-suit as to Oaklander Associates, holding that the evidence was sufficient to warrant the imposition of a constructive trust, the Court’s observations on why Oak-lander Associates was unjustly enriched are equally applicable to the case at bar, viz.:

“The case is otherwise with respect to unjust enrichment. In Buchanan v. Brentwood Federal Savings and Loan Association, [457 Pa. 135, 320 A.2d 117 (1964)], the Supreme Court stated that the imposition of a constructive trust on the property in question would be proper if the appellants were able to show on remand that the appellees had been unjustly enriched; such a showing would amount to ‘a general assertion that the ends of public policy and substantial justice demand that a constructive trust be impressed.’ Buchanan v. Brentwood Federal Savings and Loan Association, supra 457 Pa. at 155, 320 A.2d at 128. Recently, we said that to sustain a claim of unjust enrichment, ‘appellant must show that she wrongfully secured or passively received a benefit that it would be unconscionable for her to retain.’ Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973); See generally Moreland v. Metrovich, 249 Pa.Super. 88, 375 A.2d 772 (1977); Kimball v. Barr Township, supra; Restatement of Restitution §§ 160, 194 (1937). Here, appellant has made no showing that Oaklander Associates ‘wrongfully secured’ the property in question, but he has shown that it ‘passively received a benefit that it would be unconscionable for [it] to retain.’ The fact that Oaklander Associates may not on the present record be held to have known of Purcell’s wrongful acts does not refute the basic point that it was given a chance to buy the property, only because Purcell violated his duties to appellant as appellant’s agent.” Id., 264 Pa.Super. at 367, 399 A.2d at 1095.

Keeping the aforesaid in mind, we turn to the facts instantly. At trial, appellee testified that his mother approached him with the offer that, “. . . you build me two rooms and everything on my side. She says youns [sic] can move in the old part.... She says, you keep me as long as I live. Then the house is yours.” (N.T. 2/6/79, at 61) On cross-examination, appellee reiterated the terms of the oral agreement. Id. at 79. This accounting was corroborated by a disinterested witness (Nicholas Bruno), who stated that the mother “requested if [appellee] build [sic] her two rooms, that he could live in the house. And in due time .... [s]he would give him a deed for the house.” Id. at 12 & 22.

The evidence at trial further disclosed that the appellee moved into the premises, cared for the mother and for a year and a half incurred all the expenses attendant to the upkeep of the house. Despite his expenditure of time and money ($8,520.00) to improve substantially the condition of the premises, see Messinger v. Washington Township, 185 Pa.Super. 554, 137 A.2d 890 (1958), the mother did not comply with her part of the bargain. (N.T. 2/6/79, at 64) Instead, she conveyed the property to Pauline for one dollar, who in turn transferred it to her son, Paul, for the same amount.

As was the case in Scott v. Purcell, supra, appellee here made no showing that Pauline and Paul “wrongfully secured” the property in question, but we find that he has shown that they “passively received a benefit that it would be unconscionable for [them] to retain.” Id., 264 Pa.Super. at 367, 399 A.2d at 1095. The fact that appellants may not on the present record be held to have known of the mother’s wrongful acts, but see Farmers National Bank of Bloomsburg v. Albertson, 203 Pa.Super. 205, 199 A.2d 486 (1964) (absent actual knowledge,, circumstances can impose upon one the duty to have knowledge, e. g., close family relationship) does not refute the basic point that they were the beneficiaries of appellee’s agreement, Restatement of Restitution §§ 1 & 204, whereby he contributed to the maintenance and improvement of the premises. To divest the appellee now of the opportunity to recoup the “fair value” of his services would be truly unjust. See, e. g., Harkins v. Zamichieli, supra; Hall v. Milham, 225 Ark. 597, 284 S.W.2d 108 (1955); Eastwood v. Eastwood, 167 Kan. 471, 207 P.2d 393 (1949); Corbin on Contracts § 19, p. 27 (1952) (“A quasi contractual obligation is one that is created by the law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent .... It must be admitted, or indeed asserted, that considerations of equity and morality play a large part in the process of finding a promise by inference of fact as well as in constructing a quasi contract without any such inference at all.”). Moreover, appellee seeks recovery under a theory of unjust enrichment and not as a party to a contract seeking to enforce the contract against a third party. (Appellee’s “ANSWER TO PRELIMINARY OBJECTIONS,” Record No. 7); see Crossgates Realty Inc. v. Moore, 279 Pa.Super. 247, 420 A.2d 1125 (1980).

Consequently, we cannot in good conscience be a party to a course of action which permits the party litigants (Pauline & Paul) to retain a benefit, see Restatement of Restitution § 1 Comment b (“The word ‘benefit,’ . . ., denotes any form of advantage.”), secured at the expense of another, and at the same time say that injustice will not result from the denial of restitution to the appellee; therefore, we affirm the Order below.

No. IS Civil 1978

As for appellee’s suit on the breach of the “stipulation” entered into in open court, Andrew asserts not to be bound by same for two reasons. First, he argues, since he filed a voluntary petition in bankruptcy on May 1, 1979, in the United States District Court for the Western District of Pennsylvania and listed the amount owed to appellee in his schedule of outstanding debts, the fact that all of his debts were “discharged by order of said Court dated July 10, 1979[,] . . . effectively terminates the action at No. 13 Civil 1978.” (Appellants’ Brief at 5) Second, because the contractor selected was not “impartial,” having “done business with the [appellee] for many years prior to the appraisal,” and “was unable to describe what work had been done” with any degree of particularity, his testimony was “of no value whatsoever.” Id. at 11.

In regard to the initial averment, given the fact that Andrew failed to raise such defense in his “EXCEPTIONS” filed on August 29, 1979, (Record Nos. 22 & 24), it is waived. In re Custody of Frank, 283 Pa.Super. 229, 233, 423 A.2d 1229, 1232 (1980) (SPAETH, J.) (“When an action in assumpsit is tried by a judge sitting without a jury, a party who objects to the judge’s decision must file exceptions, and ‘[mjatters not covered by exceptions are deemed waived....’ Pa.R.Civ.P. 1038(d).”); see also Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981); Yellow Freight System, Inc. v. Workmen’s Compensation Appeal Board, 56 Pa.Cmwlth. 1, 3, 423 A.2d 1125, 1127 (1981), cf. Birdman v. Medley, 261 Pa.Super. 23, 395 A.2d 285 (1978) (to confront the appellee (and the trial judge) with a discharge in bankruptcy as a defense to a suit on a spur of the moment, without affording them the opportunity to assemble their relevant evidence or legal research, perpetrates an injustice and raising the issue initially on appeal renders it waived); 2 Goodrich-Amram 2d § 1038(d) :1. Thus, the merits of a claim raised for the first time on appeal will not be considered. See Policino v. Ehrlich, 478 Pa. 5, 385 A.2d 968 (1978); see generally Logan v. Cherrie, 444 Pa. 555, 282 A.2d 236 (1971); American Vending Co. v. Brewington, 289 Pa.Super. 25, 33 n. 5, 432 A.2d 1032, 1036 n. 5 (1981); Birdman v. Medley, supra.

The second point, in which Andrew attacks the “impartiality” of the contractor and his alleged failure to recall in detail the improvements made by the appellee four (4) years prior to the date of trial, fares no better than the first, for it is likewise waived. Pa.R.C.P. 1038(d).

Although the present appeal is only before this Court on the two issues just mentioned, the court below in its Opinion stated that to permit Andrew “to escape payment for the improvements to the property,” in light of the “stipulation” made in open court, “would be manifestly unjust,” and went on to elaborate its reasons for believing so. In addition, both appellants and appellee have addressed the issue of the legitimacy of the “stipulation” in their briefs submitted to this Court. Accordingly, it is appropriate that the issue be discussed. See Beneficial Consumer Discount Co. v. Hamlin, 263 Pa.Super. 393, 405, 398 A.2d 193, 200 (1979).

After the appellee filed a criminal complaint against Andrew, the parties appeared in court and set forth a proposal whereby appellee would drop the charges in exchange for Andrew agreeing to, inter alia, pay the “ ‘fair value’ of the work done on the[ ] premises” by the appellee, the appraisement of which would be made by an impartial contractor chosen by appellee’s counsel; and “[wjhatever figure he c[a]me[] up with [would] be binding upon both of the parties.” (N.T. 2/25/74, at 2--3) The lower court, after ascertaining that the parties heard, understood and consented to the “stipulation,” approved it.

Andrew would now have this Court sanction his attempt to eschew the obligations arising out of the “stipulation,” on the basis that there was “no meeting of the minds therein.” (Appellants’ Brief at 6) We do not agree.

To start with, “[a]ny matter which involves the individual rights or obligations of the parties inter se may properly be made the subject of a stipulation between them.” Foote v. Maryland Casualty Co., 409 Pa. 307, 313, 186 A.2d 255, 258 (1962); accord Kardibin v. Associated Hardware, 284 Pa.Super. 586, 599, 426 A.2d 649, 655 (1981); Muir v. Preferred Accident Ins. Co. of New York, 203 Pa. 338, 344, 53 A. 158, 160 (1902) (it is “the settled law and practice in Pennsylvania that whatever does not affect the jurisdiction or the due order of business and convenience of the court is capable of arrangement between the parties or their counsel, and an agreement by them will become the law of the case.”). This includes oral stipulations made in open court, which receive the imprimatur of the trial judge, and thus have the same effect as though reduced to writing and executed with complete formality. Black v. Black, 206 Pa. 116, 117-118, 55 A. 847, 848 (1903); Bookwalter v. Bookwalter, 75 Pa.Super. 577 (1921); Canfield v. Ward, 13 Pa.D. & C.3d 508 (Wayne Co.1980); 1 Williston on Contracts § 204A (3d Ed. 1957); Restatement (Second) of Contracts § 94; Restatement of the Law of Contracts (Pa.Anno.) § 94; see also Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 73, 384 A.2d 1228, 1233 (1978); Anno.: Effectiveness of Stipulation of Parties or Attorneys, Notwithstanding Its Violating Form Requirements. 7 A.L.R.3d 1394 (1966).

The fact that Andrew bound himself to pay the “fair value” of the work performed by the appellee, as determined by an independent contractor, is not inimical to the validity of the “stipulation”. In Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968), our Supreme Court held, in deciding whether an agreement was susceptible to specific performance due to the lack of a definitive purchase price, that:

“At the outset, it should be noted that price is an essential ingredient of every contract for the transfer of property and must be sufficiently definite and certain or capable of being ascertained from the contract between the parties. Thomas v. St. Joseph’s Polish Nat. Catholic Church of McKees Rocks, 343 Pa. 328, 22 A.2d 661 (1941); Butler v. Kemmerer, 218 Pa. 242, 67 A. 332 (1907); see, 17 Am.Jur.2d Contracts, § 84 (1964), and cases cited therein. However, where a contract specifies that the price is to be measured by the ‘fair market value’ or ‘reasonable value’ of the services or property involved, courts have generally held that the price is sufficiently certain in order to have an enforceable obligation. See, Williston, Contracts, Vol. 1, § 41 (3d Ed. 1957); 17 Am.Jur.2d, supra. Moreover, the law recognizes in the area of enforceability of contracts the maxim, ‘id certum est quod eertum reddi potest ’ (that is certain which can be made certain). Suchan v. Swope, [357 Pa. 16, 53 A.2d 116 (1947)]; Windsor Manufacturing Company v. S. Makransky & Sons, 322 Pa. 466, 186 A. 84 (1936); Rossmassler v. Spielberger, 270 Pa. 30, 112 A. 876 (1921); Northern Central Railway Company v. Walworth, 193 Pa. 207, 44 A. 253 (1899). Here the parties specifically provided that the option price for the sale of the real estate would be determined by the ‘current market value at the end of the final term.’ This provision, in our opinion means fair market value and meets the necessary standards required by law with respect to the certainty of the purchase price so as not to preclude specific performance of the option agreement.”

Id., 430 Pa. at 406, 243 A.2d at 447-448; see also Western Newspaper Union v. Shaltz, 164 Pa.Super. 301, 303, 64 A.2d 493, 495 (1949) (“The item of the express contract to make corrections for ‘approximately $5.00 a week’ (if corrections did not run over 20% of the items) is not bad because of indefiniteness. The law does not require certainty but only reasonable certainty: Restatement, Contracts, § 32.”); see generally Bredt v. Bredt, 230 Pa.Super. 111, 326 A.2d 446 (1974) (a support agreement made in open court and not formalized or completed was held enforceable); Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Super. 488, 492, 159 A.2d 48, 51 (1960) (“ ‘it is . . . well settled that the terms of a contract need not be expressed with exactness but only with reasonable certainty’ .... ‘The law does not favor, but leans against, the destruction of contracts because of uncertainty. Therefore, the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained’.”); accord Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., 285 Pa.Super. 84, 426 A.2d 1152 (1981).

Instantly, as in Portnoy, an essential contractual element, i. e., the price one side was willing to accept and the other side was willing to pay in concluding an agreement, was left to some future date. In Portnoy, “the option price for the sale of the real estate would be determined by the ‘current market value at the end of the final term.’ ” 430 Pa. at 406, 243 A.2d at 448. Here, the parties agreed that the amount Andrew would be obligated to pay, and the appellee would be bound to accept, was to be “the fair value of the work done,” “[w]hatever figure” that might be, as determined by a third party after an appraisal was conducted.

We find, as did the Court in Portnoy, that the “fair value” provision “meets the necessary standards required by law with respect to the certainty of ... price so as not to preclude . . . the [appellee from obtaining restitution under the terms of the] agreement.” Id.; see Sun Oil Co. v. Traylor, 407 Pa. 237, 242, 180 A.2d 235, 238 (1962) (“as nature abhors a vacuum the law abhors unreliability in compacts and undertakings solemnized in writing or by any other method which expresses a meeting of the minds.”); Western Newspaper Union v. Shaltz, supra; Kirk v. Brentwood Manor Homes, Inc., supra; Restatement (Second) of Contracts § 94.

It should be noted that Andrew does not aver that he was unable to pay the amount due the appellee. See 1 Williston on Contracts § 204A. This fact is well illustrated by the following exchange:

“[Appellee’s Counsel:]
Q What was your intention at the time this stipulation was made; did you intend to pay [appellee] whatever this figure was?
[Andrew]:
A Yeah, but I didn’t figure it would come to $8,000. Whatever it cost.
t- * * * * *
Q All right. Was it your intention to pay, though? A Yeah, I would have paid.
Q Whatever amount that was determined to be?
A But not this high.
Q You didn’t expect any $8,000?
A Right.
Q Could you in fact pay this?
A Well, I would have, but not this high. No way.” (N.T. 2/6/79, at 125-26) (Emphasis added)

From the preceding dialogue, it is evident that Andrew refused to abide by the terms of the agreement solely because he was remiss in not “figuring] the bill was going to be $8500.” Id. at 129. This is no reason to vitiate the agreement. As was stated quite aptly in New Charter Coal Co. v. McKee, 411 Pa. 307, 312, 191 A.2d 830, 833 (1963):

The law demands of every man who bargains with another that he should do so only after due reflection of the possible consequences of his bargain and if he misjudges the consequences that could have been expected by a reasonably intelligent man, he cannot rely on the law to remedy his fecklessness. Absent some legally recognized infringement of the law of contract by one party, the law will not reform a written contract so as to make a contract for the parties that they did not make be[t]ween themselves and certainly never to rescue a party who did not reasonably foresee the consequences of his bargain.” (Emphasis added) Cf. Durham Terrace, Inc. v. Hellertown Borough Authority, 394 Pa. 623, 148 A.2d 899, 904 (1959) (“the quasi-contractual principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties ‘however harsh the provisions of such

contracts may seem in light of subsequent happenings.’ ”). Additionally, “[i]t has been said that parties sui juris bind themselves by their lawful contracts, and courts cannot alter them because they work a hardship. The mere fact that the parties have made an improvident bargain will not lead a court to make unnatural implications or artificial interpretations.” (Citation omitted) Harnish v. Shannon, 392 Pa. 419, 141 A.2d 347, 351 (1958).

Thus, upon a thorough examination of the record, we conclude that Andrew (by his own admission) intended to enter into and be bound by the agreement (“mutuality of assent”) with the appellee. He should not now, after discovering that he underestimated the extent of his liability, be permitted to escape his contractual obligation. “He cannot do this for the simple reason that he had agreed to do otherwise, and he must keep his bargain. He cannot play fast and loose with the court,” Bookwalter v. Bookwalter, supra, 75 Pa.Super. at 580, by asking it at one stage of the litigation to be a party to and approve a “stipulation” nolle prossing the charges filed against him and then turn around and ask the judiciary to sanction his breach of that same agreement. The courts should not be parties to or condone such conduct. Moreover, inasmuch as Andrew failed to prove the existence of any fraud, accident or mistake in regard to the making or execution of the agreement, see Buffington v. Buffington, 378 Pa. 149, 106 A.2d 229 (1954); 1 Williston on Contracts § 204A; 35 P.L.E. Stipulations § 8 (1961); see also Berberich v. Berberich, 383 Pa. 349, 352, 118 A.2d 445, 448 (1955), he should not be relieved of his obligation to pay the amount due the appellee.

Based on the aforesaid, we affirm the Order of the lower court.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I join the majority in holding that Andrew Zvonik is liable to Appellee on the basis of the parties’ in-court agreement; however, I must dissent regarding Pauline and Paul Zvonik’s liability to Appellee.

The majority states, “Furthermore, the most significant requirement for recovery on a quasi contract is that the enrichment to the defendant must be unjust . . . . ” The majority does not proceed to explain how or why it would be unjust for the donee-beneficiary (Pauline Zvonik) or her son to retain the house that Anna Zvonik gave to Pauline in breach of her (Anna’s) alleged contract with George. Although Pauline and Paul “passively received a benefit,” the majority does not explain how or why “it would be unconscionable” for them to retain this benefit. Even though the courts focus on the result of unjust enrichment, as the majority asserts, not every enrichment is unjust, and not in every case where a benefit is passively received is it unconscionable for the party to retain that benefit. See Meehan v. Cheltenham Township, 410 Pa. 446, 450, 189 A.2d 593, 596 (1963).

As the court stated in Meehan, which the majority cites as authority for the principles of unjust enrichment:

[T]he mere fact that one party benefits from the act of another is not of itself sufficient to justify restitution. There must also be an injustice in permitting the benefit to be retained without compensation.

Id., 410 Pa. at 450, 189 A.2d at 596. The court in Meehan proceeds to cite the following example from section 110 of the Restatement of Restitution to determine whether or not retention of a benefit is unjust:

Section 110 deals with the situation where a third party benefits from a contract entered into between two other parties. It provides that, in the absence of some misleading by the third party, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution against the third party. The Restatement gives as an example of this principle the situation where A purchases a ring from C, a jeweler, for his fiancee B and then defaults in the payments. The Restatement states that C cannot recover the ring or its value from B. [Footnote omitted, and emphasis added.]

Id., 410 Pa. at 450-51, 189 A.2d at 596.

If one applies the foregoing example to the instant case, it is clear that George Zvonik does not have a cause of action against either Pauline or Paul Zvonik for the benefits that he (George) conferred upon Anna Zvonik pursuant to their alleged oral contract. Anna requested that George make the improvements to her house as A purchased the ring from C in the foregoing example. Anna subsequently gave the house to Pauline and breached her promise to George as A gave the ring to B and defaulted in his payments to C. As C does not have a cause of action against B, so George does not have a cause of action against either Pauline or Paul. As it is not unjust or unconscionable for B to retain the benefit that she passively received, so it is not unconscionable for either Pauline or Paul to retain the benefits that they passively received.

Although the majority relies greatly upon Scott v. Purcell, 264 Pa.Super. 354, 399 A.2d 1088 (1979), in which the Superior Court applied the theory of unjust enrichment, we note that the opinion by the Supreme Court of Pennsylvania, 490 Pa. 109, 415 A.2d 56 (1980), (KAUFFMAN, J.) affirmed the Superior Court’s order on principles other than unjust enrichment. The opinion by the Superior Court, upon which the majority relies, held that Oaklander Associates, the recipient of the property that was obtained because of Purcell’s violation of his duties as Scott’s agent, had “passively received a benefit that it would be unconscionable for [it] to retain.” 264 Pa.Super. at 367, 399 A.2d at 1095. The Superior Court did not explain why it would be unconscionable for Oaklander Associates to retain the benefit. The court merely states:

The fact that Oaklander Associates may not on the present record be held to have known of Purcell’s wrongful acts does not refute the basic point that it was given a chance to buy the property, only because Purcell violated his duties to appellant as appellant’s agent.

Id., 264 Pa.Super. at 367, 399 A.2d at 1095. Since Scott v. Purcell was on appeal from the lower court’s refusal to strike a compulsory nonsuit, the decisions of both the Supreme and the Superior Courts were based upon the principle that a nonsuit should be sustained only if the plaintiff “cannot recover under any view of the evidence. . . . ” Id., 264 Pa.Super. at 357, 399 A.2d at 1090. Thus, the opinion by the Superior Court holds only that sufficient evidence exists so the plaintiff may have a cause of action based upon unjust enrichment. Both appellate courts remanded for a trial to determine whether or not Oaklander Associates actually was liable on any theory. Thus, Scott cannot be cited as precedent for the principle that the passive recipient of a benefit has been unjustly enriched because he would not have acquired the benefit if a third party had not breached a duty.

In Roman Mosaic and Tile Co. v. Vollrath, 226 Pa.Super. 215, 313 A.2d 305 (1974), Appellant installed a new floor in a laundromat owned by Vollrath Investments. Paul Vollrath, who signed the contract without indicating the capacity in which he acted, subsequently defaulted. Appellant filed one action against Paul Vollrath and the corporation and a second action against Paul and his wife, Geraldine, who was also an owner, for unjust enrichment. The Superior Court held that, although Geraldine had been enriched, Appellant could not “secure relief from her unless she did something misleading or otherwise improper in connection with the contract.” Id., 226 Pa.Super. at 218, 313 A.2d at 307. Because Geraldine was not a party to the contract, the “doctrine of unjust enrichment cannot be used to circumvent this principle (viz., that a noncontracting party cannot be sued for breach) merely by substituting one promisor or debtor for another” (citations omitted). Id., 226 Pa.Super. at 218, 313 A.2d at 307.

In the instant case, the record has not revealed that either Pauline or Paul did anything misleading or improper regarding the mother’s contract with George. George chose not to pursue a claim against Anna Zvonik’s estate (N.T. 7, 2/6/79). George cannot, therefore, substitute either Pauline or Paul in place of Anna Zvonik who breached her promise to George.

For the foregoing reasons, I would reverse the lower court’s order in No. 12 Civil 1978, and affirm the order in No. 13 Civil 1978.

      . Anna Zvonik died prior to trial and appellee decided not to pursue the case against her estate, none having been raised at the time. See Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266, 271, 409 A.2d 343, 346 (1979). As for Andrew Zvonik, his preliminary objections were sustained and he was dropped as a party from the suit. (Record No. 9, at 3)

      . Pauline also argues that because her debt ($8,520.00) to the appellee was discharged by a federal district court in the Western District of Pennsylvania, she no longer has a legal obligation to pay appellee. (Appellants’ Brief at 4-5) This issue having not been raised by the appellant in her “EXCEPTIONS” to the lower court’s findings, it is waived. Pa.R.C.P. 1038(d). See also discussion infra, wherein Andrew proffers the identical averment, which is also denied.

      . Appellants cannot now on appeal object to this testimony, having failed to take exception to same at trial, claiming that it violates the Dead Man’s Act, 42 Pa.C.S.A. § 5930 (Pamphlet, 1981); especially after counsel for appellant queried appellee on the content of the oral agreement. 38 P.L.E. Trial § 82 (1961); see generally Warden v. Zanella, 283 Pa. 137, 147, 423 A.2d 1026, 1031 (1980); Moreland v. Metrovich, 249 Pa.Super. 88, 91 & n. 2, 375 A.2d 772, 773 & n. 2 (1977); Brown v. Newkirk, 239 Ga. 579, 238 S.E.2d 352 (1977).

      . The Court need not rule on the validity of said agreement for several reasons: First, the terms of the oral agreement were raised by the appellee in Points 3 & 4 of his Complaint [No. 12 Civil 1978], but appellants failed to raise the Statute of Frauds, 33 P.S. § 1, as an affirmative defense in their “ANSWER AND NEW MATTER.” Pa.R. C.P. 1030; see generally Axler v. First Newport Realty Investors, 279 Pa.Super. 14, 420 A.2d 720 (1980). In fact, Andrew, admitted to the existence of same in Points 3 & 4 of his “ANSWER AND NEW MATTER” [No. 13 Civil 1978]; Second, the appellants’ counsel neglected to object to the admissibility of such evidence at trial, see Dilliplaine v. Lehigh, 457 Pa. 255, 322 A.2d 114 (1974); therefore, it is waived; Third, this point was not presented by the appellants in their “EXCEPTIONS” to the lower court’s findings, Pa.R.C.P. 1038(d) (“Matters not covered by exceptions are deemed waived.. . . ”); and Fourth, the doctrine of unjust enrichment does not require as a sine

        qua non to its implementation, as appellants’ urge, the establishment of a contractual relationship. See Schott v. Westinghouse Electric Corp., 436 Pa. 279, 290, 259 A.2d 443, 449 (1969); Colish v. Goldstein, 196 Pa.Super. 188, 191, 173 A.2d 749, 751 (1961) (quasi contracts are fictional contracts which arise where the law imposes a duty upon a person, not because of any express or implied promise on his part to perform it, but even in spite of any intention he might have to the contrary); Nat’l Maritime Union v. Taystee Bar-B-Q Corp., 192 Pa.Super. 362, 161 A.2d 646 (1960) (semble). On the quantum of proof necessary to establish the validity of “oral” agreements between parent and child, see: Gibb’s Estate, 266 Pa. 485, 487, 110 A. 236 (1920) (“where the family relation exists no action can be maintained for services . . . claimed, unless an express promise or agreement to pay is proven. In other words, the existence of the family relationship rebuts the presumption which the law would otherwise raise that there was a promise to pay.”); Erie & W.V.R. Co. v. Knowles, 117 Pa. 77, 11 A. 250 (1887) (semble); Poorman v. Kilgore, 26 Pa. 365, 372 (1855) (semble); see also In re Yarnell’s Estate, 376 Pa. 582, 103 A.2d 753 (1974); Rarry v. Shimek, 360 Pa. 315, 62 A.2d 46 (1948); Van Meter v. Norris, 318 Pa. 137, 177 A. 799 (1935); Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980); Lang v. Lang, 140 Pa.Super. 356, 14 A.2d 216 (1940); Griffith v. Commonwealth, Dept. of Public Welfare, 41 Pa.Cmwlth. 613, 399 A.2d 1191 (1979); Anno., 7 A.L.R.2d 8, § 5 (1949); Anno., 7 A.L.R.2d 1166 (1949).

      . Parenthetically, appellee’s remedy would have been to seek a constructive trust or to secure an equitable lien on the property. See Restatement of Restitution §§ 160 & 170 (1937). Also, we mention the applicability of the doctrine of promissory estoppel to this type of situation. Restatement of Restitution § 90 (1937). It has been stated:
      “Estoppel is basically a tort doctrine and the rationale of . . . section [90 of the Restatement of the Law] is that justice requires the defendant to pay for the harm caused by foreseeable reliance upon the performance of his promise. The wrong is not primarily in depriving the plaintiff of the promised reward but in causing the plaintiff to change position to his detriment .... In many of the situations to which the section might apply, there would be no element of present misrepresentation, as where a promise to make a gift is conditioned upon the doing of an act by the plaintiff and there is a subsequent change in the fortunes of the defendant or a quarrel between the parties.” (Footnote omitted)
      Seavy, Reliance on Gratuitous Promises or Other Conduct, 64 Harv. L.Rev. 913, 926 (1951). See Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 74 n. 9, 384 A.2d 1228, 1233 n. 9 (1978); See generally Zlotziver v. Zlotziver, 355 Pa. 299, 302, 49 A.2d 779, 781 (1946); Briggs v. Sackett, 275 Pa.Super. 13, 15, 418 A.2d 586, 588 (1980); Restatement (Second) of Contracts § 197.

       Here, Pauline and Paul for the price of a dollar each received a piece of property that was improved to the tune of $8,520.00. Cf. Restatement of Restitution § 204 (gratuitous transferee held accountable to a person who has a beneficial interest in the title to the property transferee receives).

      . Even if we assume for the sake of argument that such issue is not waived, it is still unpersuasive. A review of the record reveals that the contractor knew the appellee no more than as a “[c]ustomer coming into [his] store.” (N.T. 2/6/79, at 26) Also, although the contractor admitted knowing the Zvonik name for many years, he stated he “was not personally connected with the family in any way.” Id. at 28. Regarding the allegation that the contractor was unable “to describe what work had been done, what materials [were] used, [and] the type of flooring or wall covering [installed,]” (Appellants’ Brief at 11), the record indicates otherwise. For example, the contractor did testify as to what specific improvements were made by the appellee, i. e., he stated: “[appellee] built a kitchen and remodeled it. He put in a half a bath. He built a foundation and the exterior work on a 30 by 12 foot [sic] addition. He built a porch with a foundation, the floors and the walls. He built new spouting and built a coal bin. He painted three rooms upstairs and he remodeled a bathroom, excluding fixtures and including the hot water radiator.” (N.T. 2/6/79, at 28)
      Albeit the contractor was not able to recall “the brand names of anything,” id. at 31, this can be attributed to the four years that elapsed between the time the estimate was made (1975) and when he testified at trial (1979). Moreover, in response to appellant’s counsel’s query as to what exactly was installed in Anna Zvonik’s kitchen “that was worth $1839,” the contractor remarked: “. . . I don’t remember. I have been in the kitchen business and I have been in it for many years [—since 1968] and I get into kitchens, a half a dozen a day and I cannot pick this one out.” Id. at 30 -31. Such testimony is not fatal to the credibility of the witness. See generally American Vending Co. v. Brewington, supra, 289 Pa.Super. at 31 & n. 4, 432 A.2d at 1035 & n. 4.
      Also, since the preceding matters are concerned with the credibility of the witness, which is traditionally within the bailiwick of the trier of fact, an appellate court is not to intrude into the province of the trial judge, the arbiter of fact here, absent evidence that the decision was unreasonable and unjustified. Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976); 4 P.L.E. Appeals § 432. After a review of the evidence, we see no reason to disturb the verdict. Id. at §§ 433-436.

      . We find the contractor’s appraisal sufficiently detailed to inform Andrew of what improvements were made and their cost, which is in compliance with the parties’ intentions that “[w]hatever figure” the contractor came up with would be binding upon both. (N.T. 2/25/74, at 3); see Commonwealth v. E.J. Albrecht Co., 59 Pa.Cmwlth. 246, 430 A.2d 328 (1981); J.W. Goodliffe & Son v. Odzer, 283 Pa.Super. 148, 153, 423 A.2d 1032, 1034 (1980); cf. Morris Co. v. Athas, 221 Pa.Super. 239, 289 A.2d 758 (1972) (“The only evidence of reasonable price for the equipment was an expert’s testimony that the fair price for a sale to a consumer was ‘approximately $9,000.’ Under such circumstances, a sum larger than that figure should not have been awarded and the judgment should be modified.”).
      The relevant portion of the contractor’s proposal is cited below: “We hereby submit specifications and estimates for:
      Appraised value of labor and material performed by Mr. George Zvonik on house located at Lynn Street, Central City, Penna. 15926.
      Kitchen: $1,839.00
      V2 bath: $ 587.00
      30' x 12' addition complete with foundation,
      exterior work, floors and walls: $3,545.00
      Enclosed porch complete with foundation,
      floors, walls, ceilings: $1,496.00
      New spouting, and built a coal bin: $ 285.00

      Painting of three rooms upstairs: $ 241.00
      Remodel bathroom, excluding fixtures, and
      including hot water radiator: $ 527.00
      Total labor and material $8,520.00
      * * sic *
      /s/ L. E. Zimmerman.”
      (Plaintiffs [Appellee’s] Exhibit A)

      . More particularly, one commentator has stated:
      “In the process of negotiating an agreement, a term that is most frequently left indefinite and to be settled by future agreement, or by some other specified method, is the price in money—the compensatory exchange for the subject matter of purchase. This is true both of agreements for the rendition of service and of those for the purchase and sale of goods. If the parties provide a practicable, objective method for determining this price or compensation, not leaving it to the future will of the parties themselves, there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract. The same is true if they agree upon payment of a ‘reasonable’ price or compensation.” Corbin on Contracts § 97, at 146 (1952).


source: Caselaw Access Project

author: PER CURIAM: SPAETH, Judge,

license: Public Domain

text:
    435 A.2d 1252
    Isadore B. COREN and Hilda Coren v. Matthew J. DiDOMENICO and Aurelio Nardoni and John Matthew, Inc. Appeal of Matthew DiDOMENICO and Aurelio Nardoni.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 9, 1981.

      Catherine M. Lecky, King of Prussia, for appellants.
    Gary A. Hurwitz, Media, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   PER CURIAM:

Following a nonjury trial in this assumpsit action, the lower court rendered a decision awarding appellees damages of $18,321.00. Appellants subsequently filed exceptions, which the lower court denied in the order from which the present appeal is taken. We are unable to reach the merits, however, because the order denying appellants’ exceptions has not been reduced to judgment and docketed. It is settled that “[a]n order denying exceptions following a nonjury trial is interlocutory and not appealable.” Heffner v. Bock, 287 Pa.Super. 345, 346, 430 A.2d 318, 319 (1981). See also Lashner v. Redevelopment Authority of the. City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 285 Pa.Super. 558, 424 A.2d 950 (1981). “Such an order does not become appealable until, ‘on praecipe of any party,’ Pa.R.A.P. 301(d), it is ‘reduced to judgment and docketed,’ Pa.R.A.P. 301(c). And see Pa.R.C.P. 1038(e). The requirement that judgment be docketed is jurisdictional.” Unterberger v. Life Assurance Co. of Pennsylvania, supra, 286 Pa.Super. at 470, 429 A.2d at 35. Because this requirement has not been met in the present case, the appeal is premature and must be quashed.

Appeal quashed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I believe we should not quash the appeal but should reach the merits, and on the merits, remand for further findings of fact.

1

The action is in assumpsit to recover damages for breach of an agreement of sale. The case was tried by a judge sitting without a jury. On November 8, 1979, the judge entered a finding in favor of appellees and against appellants in the amount of $18,321. Appellants filed exceptions, and on February 29, 1980, the lower court, by the judge who had been the trial judge, entered an order dismissing appellants’ exceptions and stating that “[t]he Award entered by this Court on November 8, 1979 ... be and the same is hereby affirmed.” This appeal is from that order.

I agree with the majority that before we may consider the appeal on its merits, we must decide whether it is from an appealable order. Although appellees do not raise this issue, since it concerns .the jurisdiction of this court we may, and should, raise it saa sponte. Penstan Supply, Inc. v. Hay, 285 Pa.Super. 558, 424 A.2d 950 (1981); Williams v. Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976). I also agree with the majority that an order dismissing exceptions following a trial without a jury is not appealable. Before an appeal will lie, final judgment must be entered. Penstan Supply, Inc. v. Hay, supra.

Ordinarily, an order dismissing exceptions is reduced to judgment by the clerk of the lower court on praecipe of any party. Pa.R.A.P. 301(d). That was not done here. Here, the lower court said that it “affirmed” the trial judge’s finding in favor of appellees. If instead of saying that it “affirmed,” the lower court had said that it was “entering judgment,” I assume no question of appealability would arise. For I see no distinction of substance between a judgment entered by the clerk on praecipe of a party and a judgment entered by the court itself.

I believe we should consider the lower court’s statement that it “affirmed” as equivalent to a statement that it was “entering judgment.” If we must quash, we must. But a court’s responsibility is to end controversies as promptly as the sound operation of the judicial system permits. Here, I believe, to quash prolongs the controversy unnecessarily. Having quashed, we must now assume that: one of the parties will file a praecipe that the clerk enter judgment; a second appeal will be taken; we shall then do what I think we should do now—remand for further findings of fact; and a third appeal will be taken. Confronted with so disheartening a prospect, I an unwilling to quash—even if that means construing the lower court’s order very liberally.

Perhaps some good may after all come from this case. One reason for enforcing a rule as strictly as does the majority is to make an example of the erring parties, thereby encouraging others to do better. This assumes, however, that what they are supposed to do better is worth doing. But query: Is it worth insisting that one of the things a party must do is to file a praecipe with the clerk, at peril of having his appeal quashed if he doesn’t? I don’t think so. No doubt a praecipe and ensuing judgment make for a tidy docket. But tidiness should not become an end in itself. What an appellate court needs to know is what the lower court, not the clerk, did. It is the contents of the lower court’s order, not the presence or absence of a praecipe, that should control our jurisdiction. So long as the docket is tidy enough to disclose when the lower court’s order was filed and what it said, we can tell whether we have the power to hear the appeal. I therefore hope that the Advisory Committee on Appellate Court Rules and the Civil Procedural Rules Committee will re-examine Pa.R.A.P. 301 and Pa.R.C.P. 1038. Too many misguided litigants have tripped over them. See e. g., in addition to this case, Myerson v. Rolling Hill Hospital, 289 Pa.Super. 185, 432 A.2d 1114 (1981); Sun Oil Co. of Penna. v. Banghart, 289 Pa.Super. 287, 432 A.2d 1115 (1981); Dennis v. Smith, 288 Pa.Super. 185, 431 A.2d 350 (1981); Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981); Lattanze v. Silverstrini, 287 Pa.Super. 263, 429 A.2d 1201 (1981); Walheim v. Kirkpatrick, 287 Pa.Super. 130, 429 A.2d 1134 (1981); Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 546, 429 A.2d 659 (1981); Carter v. Aaacon Auto Transport, Inc., 286 Pa.Super. 547, 429 A.2d 658 (1981); Unterberger v. Life Assurance Company of Pennsylvania, 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981); Folcarelli v. Transportation Services, Inc., 284 Pa.Super. 489, 426 A.2d 152 (1981); Brogley v. Chambersburg Engineering Company, 283 Pa.Super. 562, 424 A.2d 952 (1981).

2

Having concluded that we should not quash, I am obliged to consider the merits—although-1 recognize that my view of the merits controls no one.

On May 25, 1978, by written agreement, appellants promised to build a house on Lot No. 11, Glenwood Avenue, Aldan, Pennsylvania. The agreement provided for settlement on October 31, 1978, when appellees planned to move into the house. The house was to resemble one already built on Lot No. 24, subject to changes listed in clause 5 of the agreement. These changes included kitchen appliances, medicine cabinets, special carpeting, a hot water heater, and a window in the master bedroom bath, and also various “extras,” including a fireplace, vanity, and special plumbing. The agreement called for payment of 50% of the cost of the “extras” at the time of signing the agreement. Appellees paid this 50%, as well as a deposit of $5,290, which was ten per cent of the purchase price.

On October 31, 1978, the house was far from complete. The flooring, carpeting, electrical fixtures, plumbing, kitchen appliances, sidewalks, driveway grading and downspouts were among those items not completely installed. Appellees appeared at settlement with their attorney, but because the house was not complete, settlement was not made, and this litigation followed.

In their Statement of Questions Involved, appellants identify six issues. However, these may be reduced to three.

a

Appellants first argue that the lower court erred in not disqualifying appellees’ trial attorney, Gary Hurwitz. This issue arose because Mr. Hurwitz called his law partner William March to testify; Mr. March had represented appellees, and he testified regarding the events at the settlement, the condition of the house, and the value of his services.

The Code of Professional Responsibility, DR 5-102, provides in part:

DR 5-102. Withdrawal as Counsel When The Lawyer Becomes a Witness.
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5 101(B)(1) through (4).

The circumstances enumerated in DR 5 101(B)(1) through (4) are:

(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

The practice of one attorney testifying and then continuing as trial counsel has been condemned by our Supreme Court. See Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). This condemnation would ordinarily extend to a case in which an attorney testifies in behalf of clients while his associate or partner represents the same clients at the trial. American Dredging Co. v. City of Philadelphia, 480 Pa. 177, 389 A.2d 568 (1978).

In refusing to disqualify appellees’ trial counsel, the lower court relied on Pa.R.C.P. 222, which provides:

Where any attorney acting as trial counsel in the trial of an action is called as a witness in behalf of a party whom he represents, the court may determine whether such attorney may thereafter continue to act as trial counsel during the remainder of the trial.

The lower court ruled that appellants’ request that appellees’ trial counsel be disqualified

was in direct contradiction to a recently reached Stipulation between the parties intended to expedite a resolution of the overall dispute, by opening a Default Judgment against [appellants] and proceeding immediately to a trial on the merits, instead of argument on [appellants’] Petition to Open Judgment.

Slip op. at 5-6.

In these circumstances the lower court’s ruling should not be disturbed. Disqualification would have prevented expeditious resolution, which by joining in the stipulation appellants had themselves requested. Also, appellants have not pointed to any specific evidence of conflict of interest or bias on the part of Mr. March.

b

Appellants next argue that the lower court erred in holding that they had breached their agreement to sell appellees a completed house on settlement date. In appellants’ view, it was appellees who breached the agreement by “preventing [appellants] from delivering a completed house on October 31, 1978.” Appellants argue that the flooring, carpeting, electrical fixtures, and driveway ordered by appellees were not completed because of appellees’ own failure to cooperate with the contractors appellees hired to install these items. Appellants cite evidence of appellees’ direct payment of bills to Roselli Carpets, David P. Tori, Inc., electrical contractor, and another contractor for the driveway. Appellees, on the other hand, contend that they did not make separate contracts with Roselli Carpets, David Tori, Inc., or any other contractor. They claim that they placed all orders for additions to the house “either directly with [appellants] or their subcontractors. In no instance did [appellees] employ third party contractors to work on the premises.” (Appellees’ Brief at 7) Appellee Isadore Coren testified that appellant Nardoni and a salesman made arrangements for him to go to Roselli Carpets and order the carpeting he wanted, and that he paid Roselli only the amount over that which appellants credited him. He said: “I didn’t make no arrangements with these people.” (N.T. 64) Coren also testified that he dealt with appellants as to all of the additions to the house, and that he did not make separate contracts with the carpet company, electrician, or paving contractor to install the additional work he desired.

Resolution of this issue is critical to disposition of this case. Unfortunately, we have received no guidance from the lower court, which filed no findings of fact. In its opinion filed in response to the appeal, the lower court states:

Defendants, however, attempt to justify their failure to perform under the contract by alleging that the Plaintiffs failed to perform or pay under certain collateral Agreements for the purchase of a refrigerator and a dishwasher. If there was any nonperformance on the part of the Plaintiffs, and it was the finding of the Court that it [sic] was not, it was so insubstantial as not to affect the overall performance under the contract.

(Slip op. at 4)

Appellants’ defense, however, was not based on alleged “collateral Agreements for the purchase of a refrigerator and a dishwasher,” but on alleged separate agreements for flooring, carpeting, electrical fixtures and the driveway. Given only the lower court’s opinion, it cannot be determined whether appellants’ defense has any merit. Where the lower court has failed to make critical findings of fact, the proper remedy on appeal is to reverse and remand for further findings. See Bedillion v. W. A. Wilson Stave Co., 271 Pa.Super. 292, 413 A.2d 411 (1979).

c

Appellants state that “[t]he Award of $18,321 is $601.20 less than the amount claimed. Unfortunately, since the Trial Judge did not submit Findings of Fact, it is impossible to determine which of the items of damage that were claimed were not considered by the Trial Judge to be justified.” (Appellants’ Brief at 37) Appellants then challenge the legal and evidentiary basis of several of appellees’ claims, including their claim for loss of bargain on the sale of their own home, interest and fees on swing loans, rental of two apartments, and attorney’s fees.

It cannot be determined from the lower court’s opinion which of appellees’ claims for damages the court rejected in reaching its decision to award somewhat less than the full amount sought by appellees. In such circumstances, the proper remedy is to remand to the lower court for an explanation of how it reached the amount of damages it awarded. See Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980).

For the foregoing reasons, I should not quash but should reverse and remand for further findings of fact, with instructions that when such findings of fact had been filed, either party might file exceptions, any further appeal to be from such judgment as was entered following dismissal of those exceptions.

      . The order from which the present appeal has been taken is as follows:
      AND NOW, to wit, this 29th day of February, 1980, upon consideration of the briefs and arguments presented by respective counsel in this matter, it is hereby ORDERED and DECREED that the Exceptions filed by the [appellants] to the Award entered by this Court on November 8, 1979, be and the same are hereby denied and dismissed. The Award entered by this Court on November 8, 1979 in favor of the [appellees] and against the [appellants] Matthew J. DiDomenico and Aurelio Nardoni in the sum of Eighteen Thousand Three Hundred Twenty-One Dollars ($18,321.00) and the Award entered in favor of defendant John Matthew, Inc., be and the same is hereby affirmed.

      . Despite the well settled jurisdictional principle embodied in our cases, the dissent would “consider the lower court’s statement that it ‘affirmed’ as equivalent to a statement that it was ‘entering judgment.’ ” At 1254. In support of its interpretation, the dissent assumes that the present appeal would be proper had the lower court stated that it was “entering judgment.” Id. at 1254. That assumption is not warranted, for Pa.R.A.P. 301(c) expressly mandates that “[a] direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, . .. does not constitute an appealable order.” (Emphasis added.) That being the case, we cannot discern how the present order can be deemed appealable. Moreover, while the dissent’s call for revision of the rules governing appeals is not without merit, the present statutes, rules, and cases defining and delimiting this Court’s jurisdiction are sufficiently clear and readily applicable. Consequently, we can perceive no basis for construing lower court orders “liberally” to compensate for the inadvertence of counsel. Cf. Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 440-41, 420 A.2d 620, 623-24 (1980) (HOFFMAN, J., dissenting) (no need to recognize a broad discretionary power of review of interlocutory orders).

      . Appellees brought this action on November 6, 1978. On February 6, 1979, a default judgment was entered against appellants. On October 2, 1979, pursuant to stipulation, the judgment was opened and the case was tried.

      . Appellants also argue that appellees prevented delivery of a completed house by failing to pay for all “extras” at the time they were ordered. Appellants refer to a clause in the agreement that provided:
      (C) Extras. Seller will make changes in or additions to the Plans and Specifications .. . only if Buyer submits on Seller’s form a written authorization to Seller for such Extra, together with payment in full to Seller of the cost of such Extra (as reasonably estimated by Seller) . . .
      One might agree, that read alone, this clause required appellees to pay for all extras at the time they were ordered. However, the agreement also included a clause requiring payment of 50% of the cost of extras at the time of signing the agreement. At trial, appellants acknowledged the receipt of this 50% payment, and in their brief to this court they say that “the remaining 50% [was] to be paid at settlement.” (Appellants’ Brief at 3) Appellee Isadore Coren testified that he was prepared to pay the remaining 50% at settlement. In these circumstances, appellants’ argument that appellees breached the agreement by failing to pay for the extras is without merit.

      . The record indicates that at the conclusion of trial, the trial judge asked counsel for the parties whether the case required findings of fact. Counsel for appellants said: “1 think it does require findings of fact, Your Honor.” The court responded: “Well, if it does, you better give me some findings and conclusions then . .. . ” (N.T. 168) No suggested findings of fact or conclusions of law appear in the record, although appellants say in their brief to this court that “both parties filed proposed findings of fact and memoranda with the Trial Judge.” (Appellants’ Brief at 8)


author: PER CURIAM:

text:
    435 A.2d 1257
    Nora M. GAERTNER, Appellant, v. F. JAY SMITH, INC., A Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Oct. 9, 1981.
    John F. Becker, Pittsburgh, for appellant.
    Robert C. Little, Pittsburgh, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Since the verdict has not been reduced to judgment and the appeal is from an Order denying motions for new trial and judgment n. o. v., this case is not properly before us at this time. Pa. R.A.P. 301(c). See Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981) and cases cited therein.

Appeal quashed.


author: SPAETH, Judge: CAVANAUGH, Judge,

text:
    435 A.2d 1258
    Jessie EVANS, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dee. 3, 1979.
    Filed Oct. 16, 1981.
    Allen L. Feingold, Philadelphia, for appellant.
    Marcy B. Tanker, Philadelphia, for appellee.

      Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Judge JOSEPH F. O’KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   SPAETH, Judge:

This appeal is from an order sustaining preliminary objections and dismissing the second and third counts of a three count complaint. The first count was in assumpsit and sought payments allegedly due under a no-fault motor vehicle insurance policy. The second and third counts were in trespass and alleged that appellee’s failure to pay was a wilful, wanton and malicious breach of contract done with the intent to harass and frustrate appellant.

We have repeatedly held that an order dismissing some but not all of the counts in a multi-count complaint is interlocutory and not appealable because appellant is not out of court. Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). We have so held at least twice with regard to appeals from lower court orders sustaining preliminary objections to trespass counts in complaints in exactly the same form as the one here—an assumpsit count claiming no-fault benefits and trespass counts alleging that the nonpayment was tortious. Brandon v. State Farm Insurance Company, 284 Pa.Super. 399, 425 A.2d 1163 (1981); Gurnick v. Government Employees Insurance Company, 278 Pa.Super. 437, 420 A.2d 620 (1980). Therefore, this appeal as well must be quashed as being an appeal from an interlocutory order not permitted by statute, general rule, or by permission following certification by the lower court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301 312.

Although this appeal is clearly interlocutory and must be quashed, we should in fairness to the parties explain why it has taken us so long to do so. Appellee did not challenge the propriety of this appeal either in its brief or by motion to quash. When this case was argued, we did not then recognize that the appeal was from an interlocutory order, but we were aware that the substantive issues presented were before the Supreme Court. We therefore held this case until the Supreme Court’s decisions in D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981), and Smith v. Harleysville Insurance Company, 494 Pa. 515, 431 A.2d 974 (1981). On returning to this case, after the Supreme Court’s decisions in DAmbrosio and Smith were filed, we recognized that the appeal was from an interlocutory order and had to be quashed. The failure of appellee to object does not confer jurisdiction we do not possess, 42 Pa.C.S.A. § 704(b)(2), and the issue of our jurisdiction is one we can and must raise sua sponte. Penstan Supply, Inc. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981).

Although the merits of appellant’s claim for punitive damages are therefore not properly before us, since we did hold this case until we could have the benefit of the Supreme Court’s decisions in DAmbrosio and Smith, we note that the Court held in DAmbrosio that there is no cause of action for punitive damages for the failure of an insurance carrier to properly handle a claim and that an insured’s only redress is through the Unfair Insurance Practices Act, Act of July 22, 1974, P. L. 589, No. 205, 40 P.S. § 1171.1 et seq. In Smith which involved, as does this case, a no-fault motor vehicle insurance policy, the Court held the issue controlled by its decision in DAmbrosio. Thus, were the merits of the lower court’s order before us, we should affirm on the authority of DAmbrosio and Smith.

APPEAL QUASHED.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I would affirm the order of the lower court dismissing the trespass counts of the complaint on the authority of DAm brosio as cited by the majority. I would not quash. D’Ambrosio also involved separate causes of action in trespass and assumpsit and the Supreme Court did not find a lack of jurisdiction. It is my position that when a party is out of court as to a cause of action the appeal is not interlocutory even though it was asserted in a complaint together with another separate cause of action.

      . Although the question of our jurisdiction is one we should consider sua sponte in every case that comes before us, we admit that on occasion we have failed to do so and that consequently there are cases on the books, including cases similar to this one, where we failed to recognize that the order under review was interlocutory and not appealable. Our more recent opinions, including those cited above, are evidence of our intent not to repeat our past mistakes.


author: HESTER, Judge:

text:
    435 A.2d 1260
    Robert B. WICKS and Lucy J. Wicks, Individually and as parents and natural guardians of Jill, Geoffrey and Audrey Wicks, Minors and Charles J. Bauer and Ruth M. Bauer, Individually and as parents and natural guardians of Ruth, Charles, John, Linda and Michelle Bauer, Minors and Donald L. Sheriff and Pamela K. Sheriff, Individually and as parents and natural guardians of Michael Sheriff, A Minor, Appellants, v. MILZOCO BUILDERS, INC., Carroll Builders, Inc., R. L. Sheibley and Benjamin Breneman, Trading as R. L. Sheibley Construction Company, Michael A. Serluco and Benjamin Breneman, d/b/a Georgian Hall Real Estate, Eugene Cook, Chester Miller, Wesley Zollers, Scott Greenfield and John C. Brilhart. William E. LELLO and Linda J. Lello, Appellants, v. MILZOCO BUILDERS, INC., Carroll Builders, Inc., R. L. Sheibley and Benjamin Breneman, Trading as R. L. Sheibley Construction Company, Eugene Cook, Chester Miller, Wesley Zollers, and John C. Brilhart.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Granted Jan. 7, 1982.

      Richard C. Angino, Harrisburg, for appellants.
    Harold S. Irwin, Jr., Carlisle, for Milzoco, Carroll, Cook, Miller and Zollers, appellees.
    Robert J. Stewart, York, did not file a brief on behalf of Sheibley, Breneman and Sheibley Const., appellee.
    Jerry Duffie, Carlisle, did not file a brief on behalf of Serluco and Georgian Hall Real Estate, appellees.
    John M. Eakin, Mechanicsburg, for Brilhart, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   HESTER, Judge:

These appeals are taken from Orders of the Court of Common Pleas of Cumberland County sustaining preliminary objections to appellants’ complaints.

Appellants are four homeowners in a development known as “Monroe Acres”. Appellees are the developers of “Monroe Acres”, Milzoco Builders, Inc., the builders of the four homes, Carroll Builders, Inc., and Sheibley Construction Company; the real estate agency through which appellants purchased the homes, Georgian Hall Real Estate; the surveyor who laid the plans for “Monroe Acres”, John Brilhart and the individuals comprising, Milzoco Builders, Inc., Carroll Builders, Inc., and Sheibley Construction Company.

Milzoco Builders, Inc., purchased 60 acres of land in 1969 in order to develop a 120 unit housing plan.

John Brilhart was commissioned by Milzoco to survey the land and lay the plans for each Vfc acre lot.

These lots were then sold to builders (instantly “Carroll Builders” and “Sheibley Construction”) who would construct houses for individual purchasers.

The four appellants each purchased a new home built in “Monroe Acres”. The common element of each particular residence was its location. “Monroe Acres” was located on an old farm. Part of the new development was on sloped land. Appellants’ houses were at the lowest elevation of the development, immediately in the path of the natural drainage area for the remainder of the new homes. In addition to being built in the natural drainage wash of the adjacent higher ground, appellants’ woes were further compounded due to the fact that the land on which the homes on the higher elevated lots were built, had been excavated and landscaped, further precipitating the amount and flow of water drainage to the lower lying homes.

This water drainage from the higher property caused all the appellants’ homes to be periodically flooded and thereby damaged. Their fresh water wells were polluted and their septic tanks overflowed.

The developers and the respective builders attempted to remedy the water problems by digging drainage trenches at various places on appellants’ properties. This provided no relief. Instead, it only increased their difficulties. The drainage water and overflowing raw sewage collected in these ditches and remained; thus the owners were unable to use their yards and had these unsightly and dangerous manmade “ponds” on their property.

The homeowners instituted legal action in an attempt to have these conditions remedied and for damages incurred as the result of the aforementioned conditions.

Four amended complaints were eventually filed by each homeowner. Each suit was brought in both trespass and assumpsit alleging breaches of implied and express warranties, negligence, misrepresentation and strict liability and further requesting damages for personal injury and property damage.

Basically, the complaints assert that the appellees knew or should have known of the potential drainage problems and should have taken steps to minimize them. Appellants also asserted that strict liability should attach to the conduct of not only the builders but also the developers.

The trial court dismissed all counts relating to the strict liability, sustained demurrers with regard to the individual parties sued and to the surveyor John Brilhart. The court also sustained demurrers to the cause of action in warranty as against the developers.

Appellants assert various arguments as to why the dismissal of the strict liability counts and cause of action for breach of warranty were error.

However, we cannot dispose of these issues since the appeals taken from the sustaining of those particular defendants preliminary objections are not final orders.

All defendants who were sued under theories of strict liability and for breach of warranty were also sued by the same plaintiffs under theories of negligence. The causes of action grounded in negligence were not dismissed. Thus, the sustaining of the defendants’ demurrers did not put plaintiffs out of court as to those defendants.

In Banda v. Virginia Manor Apartments, 451 Pa. 408, 303 A.2d 925, the court quashed an appeal from the sustaining of defendants preliminary objections to part of a complaint in equity.

“This appeal must be quashed. As we said in Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953): ‘. . . unless a special right to appeal is expressly given by statute, an appeal will lie only from a definitive order, decree, or judgment which finally determines the action. . . . The court cannot assume such appellate jurisdiction even by consent of the parties [citing cases]. Nor is an order, judgment or decree final unless it terminates the litigation between the parties from further action in that court [citing cases]’, 383 Pa. at 317-318, 95 A.2d at 776.” Id., 451 Pa. at 410, at 303 A.2d 926.

The orders appealed from were clearly interlocutory. We find no statutory authority permitting appeal from the within interlocutory orders. Since neither side requested the lower court to certify the case for appeal, 42 Pa. C.S. § 702(b), we must quash the issues raised in this appeal with regard to all defendants except those discussed below.

The court sustained the demurrers of defendants Cook, Miller, Zollers, and John Brilhart. As to these particular defendants, appellants were out of court, since all actions against those defendants had been dismissed. Thus, we will consider the issues raised with regard to those defendants.

Appellants assert that the court erred in dismissing all the actions in trespass against certain individuals (Cook, Miller, and Zollers) for alleged acts committed while acting as agents for the various corporations involved in these disputes.

Nowhere is it pleaded that such individuals acted beyond the scope of their authority, committed fraud or engaged in criminal conduct. Thus, no individual liability can attach as a result of their actions as agents for the corporations. McKenna v. J. Art Peal Works, Inc., 225 Pa.Super. 362, 310 A.2d 677 (1973). One dealing with a corporation, knowing it to be such, cannot enforce individual liability against officers or agents acting for the corporation Bala Corporation v. McGlinn, 295 Pa. 74, 144 A. 823 (1929).

Absent allegations in the complaints as to actions outside the scope of their authority as agents, no cause of action against them exists. Thus, the sustaining of their (the individuals) demurrers below was proper.

Finally, the appellants assert that it was improper to sustain a demurrer by the surveyor John Brilhart.

The lower court sustained the demurrer finding that no duty running from Brilhart to the appellants had been pleaded.

Brilhart was hired by Milzoco to perform certain functions with regard to setting boundary lines of the lots, streets, and laying plans for the sewage and drainage lines in “Monroe Acres” and also to supervise the excavation of drainage ditches on appellants’ properties.

Appellants have alleged that he misperformed these tasks causing the eventual drainage problems and subsequently causing their damages.

The test as to whether any “duty” shall be imputed to Brilhart is the degree of foreseeability of the injurious consequences to appellants resulting from Brilhart’s misfeasance Dooley v. Borough of Charleroi, 328 Pa. 57, 195 A. 6 (1937).

Certainly, one who is a surveyor for a housing development should reasonably foresee that in the event he improperly prepares plans for drainage facilities or improperly prepares plans for sewage facilities that the subsequent diversion of drainage water could improperly be directed into homes built in that development resulting in damage.

We find that the trespass count in appellant’s complaints against John Brilhart sufficiently states a cause of action in negligence. Thus, we reverse the order of the lower court in sustaining his demurrer.

Order of the lower court sustaining the demurrers of defendants Cook, Miller, and Zollers is affirmed. Order of the lower court sustaining the demurrer of John Brilhart is reversed.

All other issues raised in this appeal are quashed and jurisdiction is relinquished to the lower court.


author: CAVANAUGH, Judge:

text:
    435 A.2d 1263
    COMMONWEALTH of Pennsylvania, v. Roger McINTOSH, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1981.
    Filed Oct. 16, 1981.

      Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.
    Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

Appellant, Roger McIntosh, was tried by a jury, convicted, and sentenced to imprisonment on charges arising out of physical abuse of an 18-month-old child.

Appellate counsel who is different from appellant’s trial counsel raises a number of issues only one of which we discuss here for we conclude that a new trial must be granted on that issue. We remand for a new trial because appellant received ineffective assistance of counsel when his trial counsel failed on post-trial motions to raise the issue of the admissibility of polygraphic evidence procured through stipulated testing of the appellant.

On November 21, 1976, appellant, McIntosh, was with his son Marcus McIntosh. The child was taken by the Fairless Hills Rescue Squad to Lower Bucks Hospital after receiving an emergency call concerning the child’s physical condition. He was transferred later to St. Christopher’s Hospital in Philadelphia where he was diagnosed as exhibiting a battered child syndrome based upon the presence of fresh and old injuries. The prosecution of McIntosh grew out of this diagnosis. Appellant’s version of events leading up to the hospitalization was that while he and Marcus were together he began to choke on a sandwich that he was eating and that the apparent injuries came from his frantic efforts to assist the child and from a subsequent fall which the child experienced followed by a convulsion.

McIntosh and his trial attorney entered into a stipulation with the District Attorney that he would undergo a polygraphic examination prior to trial. The agreement was that the case would be nol pressed if the results showed no deception but that if the results showed deception on the relevant questions the Commonwealth would have the right to use such evidence through the polygraphic examiner at trial. The examiner found that appellant was “attempting deception” on the two relevant questions. At trial, the examiner, Detective Baetzel of the Bucks County District Attorney’s office testified as to these results over the objection of defense counsel. However, the issue was not raised on post trial motions, and, therefore, the issue of the admissibility of the polygraphic testimony was not before the court en banc below. It has been raised here by appellant’s new counsel in the form of a plea that appellant was deprived of the effective assistance of counsel at the post trial motion stage. It is established that appellant counsel, if new to the case, may allege the ineffectiveness of prior counsel whether at trial or on post verdict motions: Commonwealth v. Womack, 270 Pa.Super. 494, 411 A.2d 827 (1979). When, as here, the ineffectiveness of counsel is apparent on the face of the record, we will reach the merits of a claim of ineffectiveness, in the interests of judicial economy, despite the absence of a hearing or determination on the issue below. Commonwealth v. Sample, 270 Pa.Super. 47, 53, 410 A.2d 889 (1979).

In determining whether a criminal defendant was deprived of the effective assistance of counsel we inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel’s stewardship must be examined by the standards as they existed at the time of counsel’s action, and counsel will not be deemed ineffective for failing to predict future developments in the law at the time he decided on a course of action. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

At the time of the trial of this case there was no Pennsylvania case law which permitted the use of poly-graphic evidence even by stipulation. Subsequently, in Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980), allocatur denied February 27, 1981, we decided that under such circumstances the evidence was inadmissible. And, this is so even if counsel and a criminal defendant knowingly, voluntarily and intelligently stipulated before trial that the results of such an examination were to be admissible. Pfender, supra.

Appellant’s former counsel did not withdraw before the trial, as did counsel in Pfender.■ Appellant’s former counsel did object to the admissibility of the polygraphic examination at trial, but, as indicated did not preserve the objection on post trial motion. The Commonwealth does not advance any reason for this lapse of former counsel which would point to a strategical or tactical motive redounding to the benefit of appellant. Nor can we perceive any. It is apparent on the face of the record that appellant was deprived of the effective assistance of counsel at the post trial motion stage of this proceeding. Although Pfender was not decided at the time of trial, the state of Pennsylvania law was that no appellate court had examined the scientific reliability of polygraphic evidence and as such the admissibility of the results of such test even by stipulation was at least doubtful.

The Commonwealth urges that the evidence above recited in and of itself was sufficient to establish the appellant’s guilt regardless of the admissibility of the polygraph evidence: in essence, that the admission thereof was harmless error. We cannot agree. Inherent in the Commonwealth’s evidence was the scepticism of the nurses, doctor, and social worker, all professionals, as to the truth of appellant’s assertions at the time the infant was hospitalized. The polygraphic evidence, in such a context, was devastating and most prejudicial. In fact we can think of no evidence with a greater jury import than scientific evidence that a defendant has lied as to crucial facts.

The Commonwealth also urges that we reconsider our decision in Pfender especially where the polygraphic evidence is admitted at trial by stipulation. We affirm our decision in Pfender. We still do not discern the logical process whereby unreliable evidence becomes reliable merely through stipulation. Where the life or liberty of the citizen may hinge on the results of a test of unproven reliability, holding the testee to his stipulation is at best a perversion of sportsmanship. Conversely, we may legitimately ask, if the test had shown the appellant to be truthful, whether the Commonwealth should be held to its stipulation not to prosecute, if eyewitness evidence of appellant beating the infant repeatedly had come to light, or whether the appellant should be allowed to introduce the test results to refute such evidence? We think a rational system of justice should dictate otherwise in either event. The plain fact of the matter is that a conscientious prosecutor would be most unlikely to stipulate to polygraphic testing of a defendant where sound evidence pointing to guilt was available. Evidence even of a defendant’s willingness to take a test is inadmissible: Commonwealth v. McKinley, 181 Pa.Super. 610, 123 A.2d 735 (1956).

As we pointed out in Pfender the use of polygraphic evidence which deals with the basic issue in a case is very likely to be given great weight by the factfinder. This would seem to be particularly true where, as here, the trial is before a jury and the issue of credibility of the defendant is the very core of the case.

Judgment of sentence reversed and remanded for a new trial.


author: CAVANAUGH, Judge: HESTER, Judge,

text:
    435 A.2d 1266
    COMMONWEALTH of Pennsylvania ex rel. Lewis QUACKENBUSH v. Thomas FAIRCHILD, Warden of the Bradford County Jail. Appeal of Lewis QUACKENBUSH.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Oct. 16, 1981.
    Stuart M. Golant, Towanda, for appellant.

      Jon Scot Chadwick, To wanda, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order denying a petition for a writ of habeas corpus in an extradition proceeding and ordering that appellant be delivered to the appropriate officials of New York State. We affirm.

On November 5, 1979, appellant was arrested by the Pennsylvania State Police and charged with rape, involuntary deviate sexual intercourse, indecent assault and terroristic threats; thereafter, in lieu of bail, appellant was committed to Bradford County Jail.

Subsequently, a detainer was lodged against appellant by authorities from Chemung County, New York.

On December 19, 1979, the charges pending against appellant in Pennsylvania were dropped. Appellant was not immediately released, thus defense counsel filed a petition for a writ of habeas corpus on December 20, 1979. However, before a hearing on the petition could take place, appellant was arraigned before a district magistrate on a fugitive warrant based on the detainer filed previously by New York officials.

On December 21, 1979, after a hearing on the habeas corpus petition, appellant was recommitted to Bradford County Jail to await extradition. However, no term of commitment was specified by the issuing authority.

On February 7, 1980, appellant filed a petition for a writ of habeas corpus demanding release, since 30 days had passed and no arrest had been effected by a Governor’s warrant pursuant to extradition proceedings.

On February 8, 1980, a Pennsylvania Governor’s warrant and extradition papers from New York state were served on appellant.

On February 13, 1980, a hearing was held on the habeas corpus petition and on extradition. The court denied the habeas corpus petition and ordered that appellant be extradited. This appeal followed.

Under the Uniform Criminal Extradition Act an accused may be committed to jail for up to thirty days to allow his arrest on a Governor’s warrant pursuant to a request by the demanding state. 42 Pa. C.S.A. § 9136. If the accused is not arrested under the Governor’s warrant within the initial thirty day period, he may be recommitted for a further period not to exceed sixty days, i. e. his commitment may be extended. 42 Pa. C.S.A. § 9138. Although the statute, 42 Pa. C.S.A. § 9138, does not expressly require a hearing before an accused may be recommitted for another period of up to sixty days, our case law has imposed such a requirement. See Commonwealth ex. rel. Colbert v. Aytch, 246 Pa.Super. 278, 369 A.2d 1321 (1976) affd. 478 Pa. 314, 386 A.2d 950 (1978); Commonwealth v. Murphy, 236 Pa.Super. 37, 344 A.2d 662, 664 (1975), allocatur denied.

In the instant case appellant was committed to jail to allow his arrest on the Governor’s warrant. However, after the initial thirty day period of his commitment, contrary to 42 Pa. C.S.A. § 9138 there was no extension of his commitment for a further period. Thus appellant argues that he is entitled to be discharged. We disagree based on our decision in Commonwealth v. Brown, 281 Pa.Super. 31, 421 A.2d 1131 (1980).

In Commonwealth v. Brown, supra, the appellant asserted that the lower court erred by denying his petition for a writ of habeas corpus. He argued that habeas corpus should have been granted since he was held as a fugitive for more than thirty days and the Commonwealth had not sought an extension of time under 42 Pa. C.S.A. § 9138, and had not arrested him under a Governor’s warrant. On December 15 Brown was arrested and was brought before a district magistrate; a criminal complaint was filed and he was released on bail. On December 22 a hearing was held and as a result he was “bound to court.” On January 8 the court entered an order indicating that a preliminary hearing on extradition had been held, and that Brown had been advised of his right to file a habeas corpus petition.

On February 2 Brown filed a petition for habeas corpus. He alleged that the writ should be granted since he was held as a fugitive for more than thirty days and the Commonwealth had not obtained an extension of time to hold him and had not served the Governor’s warrant.

On February 12 a hearing was held at which the Commonwealth’s witness identified Brown as the person wanted by West Virginia and at which the Commonwealth introduced the requisition papers and Governor’s warrant as exhibits. The lower court denied the petition for habeas corpus.

On appeal this court affirmed through an opinion written by Mr. Justice Roberts who was sitting by designation on the Superior Court. In reaching the result Justice Roberts distinguished Brown from Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974), an opinion which he also had written. He distinguished Knowles on two grounds. He stated “[ujnlike in Knowles, this record is clear that appellant was afforded hearings on the charges against him. Most significantly, at the hearing on appellant’s petition for a writ of habeas corpus, held less than two months after appellant’s arrest, the Commonwealth introduced both requisition papers and the Pennsylvania Governor’s Warrant.” Commonwealth v. Brown supra, 281 Pa.Super. at 36, 421 A.2d at 1134.

The Brown court recognized that in Commonwealth ex rel. Holcombe v. Strode, 266 Pa.Super. 39, 44, 402 A.2d 1067, 1069 (1979), the Superior Court adopted the rule which Judge Spaeth stated in his concurring opinion in Commonwealth v. ex rel. Myers v. Case, 250 Pa.Super. 242, 378 A.2d 917 (1977), that “[a]bsent a violation of the Rule of Commonwealth ex rel. Knowles v. Lester, 456 Pa. 423, 321 A.2d 637 (1974), habeas corpus relief is warranted only when sought after the expiration of the prescribed period (whether thirty or if extended, [pursuant to 42 Pa. C.S.A. § 9138] ninety days) and before a governor’s warrant is executed.” Id. 250 Pa.Super. at 249, 378 A.2d at 920 (emphasis original, citations omitted.). The Brown court, however, extended this rule to deny relief in a situation in which habeas corpus was sought before the Governor’s warrant was executed, but at the habeas corpus hearing, the Commonwealth produced requisition papers and a Governor’s warrant. Brown, supra, 281 Pa.Super. at 36, 421 A.2d at 1134.

In the instant case like Brown appellant was afforded hearings on the charges against him. On December 20, he had a preliminary arraignment and on December 21 there was a hearing on his first habeas corpus petition. At this hearing there was evidence of the length of time of the appellant’s detention, the reasons for his detention, the nature of the charges pending against him in New York, and the existence of a detainer from New York. The preliminary arraignment and the habeas corpus hearing distinguish this case from Knowles.

Furthermore, like Brown appellant filed a petition for habeas corpus on the ground that he had been held for more than thirty days and no extension had been obtained and no Governor’s warrant had been executed. Additionally, like Brown at the hearing on this habeas corpus petition the Commonwealth produced the requisition papers and the Governor’s warrant, it also produced testimony that the appellant was the person sought by New York.

However, in addition to the similarities between the instant case and Brown there are facts which differentiate the instant case from Brown. Nevertheless these facts do not require a different result. Although the number and type of hearings in the instant case are different from Brown, no language in Brown suggests that the type or number of hearings had any significance.

Another difference between this case and Brown is the time when the Governor’s warrant was produced. In Brown it was within two months of arrest. In the instant case it was within ninety days of the time the detainer from New York was lodged. Since ninety days is the maximum time that the Uniform Criminal Extradition Act provides for holding an individual for extradition, see 42 Pa. C.S.A. §§ 9136, 9138, this difference in the time period between Brown and the instant case is not significant. Thus we hold that Brown controls the instant case and the petition for a writ of habeas corpus was properly denied.

Order of the lower court granting extradition is affirmed.

HESTER, J., files dissenting opinion.

HESTER, Judge,

dissenting:

I respectfully dissent.

I am of the opinion that following the expiration of the original 30 day period, the Commonwealth lacked the authority required to detain the appellant.

Section 9136 of the Uniform Criminal Extradition Act, 42 Pa. C.S. of § 9121 et seq., permits the detention of an individual while awaiting extradition for a maximum period of 30 days.

While the “Act” does provide for a 60 day extension in the event there is delay in obtaining the proper documents, in this instance, I am of the Opinion that the Habeas Corpus relief requested by appellant should have been granted. At the time the Writ was filed the original 30 day period had not been extended.

In all criminal proceeding, it is fundamental that the Commonwealth possess proper authority to detain an individual accused of the commission of a crime. The only authority the Commonwealth had in this case was the original warrant ordering appellant be held for 30 days to await the extradition documents. When that period expired, so did the authority of the Commonwealth to detain appellant.

I would reverse and order appellant discharged.

      . The other arguments which appellant raises are either meritless or have not been raised in the lower court and hence are waived.

      . This was appellant’s second petition for habeas corpus. At the hearing on his first petition, on December 21, appellant claimed that he should be released since local charges against him had been dismissed on December 19 and the habeas corpus petition had been filed on December 20. This petition was denied because on December 20 a fugitive complaint had been filed against him and a preliminary arraignment had been held. At the hearing on this second habeas corpus petition appellant claimed for the first time that his rights under the Uniform Extradition Act, 42 Pa. C.S.A. § 9138, had been violated.

      . The appellant was arrested for Pennsylvania charges on November 5. These charges were subsequently dismissed. In such a situation for purposes of computing the time limits of the Uniform Extradition Act, the time begins to run when a detainer is lodged. Commonwealth ex rel. Knowles v. Lester, supra. In the instant case the New York detainer was signed by New York authorities on November 16. The record is not clear as to when it was lodged. If we assume for purposes of analysis that the detainer arrived on November 17, the habeas corpus hearing of February 13 was held within ninety days.