author: ROWLEY, Judge:

text:
    533 A.2d 157
    FIRST SENECA BANK, Appellant v. GREENVILLE DISTRIBUTING COMPANY, Robert M. Woods, Patricia M. Woods, William A. Boyce, and Mary Jane Boyce.
    Superior Court of Pennsylvania.
    Argued June 3, 1986.
    Filed Nov. 4, 1987.

      Archie 0. Wallace, Greenville, for appellant.
    William L. Walker, Meadville, for appellees.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   ROWLEY, Judge:

On September 27, 1977, Greenville Distributing Company (Greenville), the corporate appellee, executed and delivered to First Seneca Bank (Bank), appellant, a mortgage in the amount of $140,000 covering Greenville’s warehouse. The mortgage was executed on behalf of Greenville by Robert M. Woods who, at that time, was president of Greenville. On September 30, 1977, Greenville, by Robert Woods its president, as well as Robert and Patricia Woods and William and Mary Jane Boyce, individually, (also appellees herein) executed a corresponding note to the Bank for $140,000. A confession of judgment clause was included in the note. On October 19, 1977, the Bank confessed judgment on the note against the individual appellees only, in the amount of $249,995.28. The judgment against the individual appellees was revived in 1983.

Greenville ceased making payments on the mortgage and note as of April 30, 1983. On December 27, 1983, the Bank filed a two-count complaint. The first count of the complaint was in mortgage foreclosure against Greenville only. The second count of the complaint was in assumpsit against Greenville, Robert and Patricia Woods, and William and Mary Jane Boyce on the note.

By an order filed April 5, 1984, the trial court overruled Greenville’s preliminary objection which requested that the second count in assumpsit be stricken or dismissed as improper in a mortgage foreclosure action, but granted what was apparently an oral motion by the Bank for severanee of the count in mortgage foreclosure from the count in assumpsit. Shortly thereafter, by an order dated April 21, 1984, the trial court, in accordance with a stipulation of the parties, established the following procedure for the resolution of the case:

1) The Defendants or any of them must answer the first count of the Plaintiffs Complaint which is in Mortgage Foreclosure within twenty (20) days of the Court’s Opinion filed April 5, 1985 or they shall be in default in the Mortgage Foreclosure action.
2) The time for filing an answer to the Plaintiff’s Complaint in Assumpsit will be extended to a date which is twenty (20) days after any Sheriff’s sale of the mortgaged property____

On May 17,1984, because no answer had been filed to the count in mortgage foreclosure, the trial court, finding that the amount of $93,016.42 plus interest was due, entered a default judgment against Greenville in the mortgage foreclosure action. Execution proceedings on the judgment in .the mortgage foreclosure action were initiated and on July 2, 1984, the property was sold at sheriff’s sale to the Bank for $60,000 following Greenville’s unsuccessful bid of $50,-000. The deed to the Bank was recorded on July 24, 1984. On the same day, the Bank filed, in the mortgage foreclosure action, a Petition to Fix Deficiency Judgment against Greenville and the individual appellees. On August 10, 1984, Greenville and the Woods filed a response to the Petition to Fix Deficiency Judgment. Meanwhile, on July 26, 1984, pursuant to the Court’s order of April 21, 1984 adopting the parties’ stipulations, all of the appellees had filed an answer to the Bank’s action in assumpsit which had been severed from the action of mortgage foreclosure.

By a petition dated January 30, 1985, Greenville and the Woods sought to dismiss the deficiency judgment proceedings filed in the mortgage foreclosure action as well as to dismiss the assumpsit action because there was no in personam judgment and more than six months had elapsed since the sheriff’s sale. By a separate petition also dated January 30, 1985, appellees sought a release and discharge from the confessed judgment for the same reasons. The trial court signed an order dated February 2, 1985 issuing a Rule to Show Cause based on these two petitions. The Bank filed answers. On February 25, 1985, an evidentiary hearing was held. However, the two petitions of January 30, 1985, the order of February 2,1985 issuing the rule, and the Bank’s answer to the two petitions were not filed until March 15, 1985.

By an order dated March 12, 1985, and filed March 15, 1985, the trial court gave Greenville a credit against the judgment in the mortgage foreclosure action in the amount of $57,542.26 and found the deficiency in the mortgage foreclosure action to be $35,474.16. On March 27, 1985, judgment was entered on this order against not only Green-ville but also Robert and Patricia Woods and William and Mary Jane Boyce. Appellant took its first appeal to this Court at No. 408 Pittsburgh, 1985, from this judgment claiming it was entitled to a deficiency judgment in the amount of $70,474.16 which is the difference between the balance due on the mortgage and the amount appellant claims to be the fair market value of the property.

After the appeal was taken at No. 408 Pittsburgh, 1985 by the Bank, the appellees filed a petition to strike off the deficiency judgment entered March 27, 1985. On June 11, 1985, the trial court filed an opinion and order which struck off the deficiency judgment entered against the appellees on March 27, 1985; dismissed the Bank’s petition to fix a deficiency judgment; dismissed the count in assumpsit which had been filed by the Bank; and marked the confessed judgments against Robert and Patricia Woods and William and Mary Jane Boyce satisfied, discharged and released.

On July 1, 1985, the Bank entered judgment on the June 11, 1985 order, and filed therefrom its second appeal to this Court at No. 872 Pittsburgh, 1985. Because the appeal at No. 408 Pittsburgh, 1985 and the appeal at No. 872 Pittsburgh, 1985 involve the same parties and the same mortgage foreclosure proceedings, they have been consolidated for disposition.

APPEAL AT No. 408 PITTSBURGH, 1985

In this appeal, appellant argues that prior to the sheriffs sale, the parties had agreed that the property had a value of only $25,000, and, therefore, Greenville can be released from liability only for the amount agreed to be the fair market value ($25,000) and not for the amount that the bank paid for the property at the sale ($60,000 less costs) under the Deficiency Judgment Act.

Before addressing appellant’s arguments, we are required to consider, sua sponte, whether the trial court had subject matter jurisdiction to consider the Bank’s petition for a deficiency judgment in the mortgage foreclosure action. See: Pheasant Run Civic Organization v. Board of Commissioners of Penn Township, 60 Pa. Cmwlth. 216, 220, n. 4, 430 A.2d 1231, 1233, n. 4 (1981). Subject matter jurisdiction cannot be conferred by consent, and it cannot be founded upon waiver or estoppel. Appeal of Kramer, 445 Pa. 238, 282 A.2d 386 (1971); Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

The Deficiency Judgment Act provides:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.

42 Pa.C.S. § 8103(a).

A petition for deficiency judgment pursuant to § 8103 cannot be brought in a mortgage foreclosure action because the judgment obtained in a mortgage foreclosure action is a judgment in rem. Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964); Valley Trust Company of Palmyra v. Lapitsky, 339 Pa.Super. 177, 488 A.2d 608 (1985); McDowell National Bank of Sharon v. Stupka, 310 Pa.Super. 143, 456 A.2d 540 (1983); National Council of the Junior Order of United American Mechanics of the United States of America v. Zytnick, 221 Pa.Super. 391, 293 A.2d 112 (1972). In Meco, Id. 414 Pa. at 498, 200 A.2d at 871 the Court said:

The sole purpose of the judgment obtained through an action of mortgage forclosure is to effect a judicial sale of the mortgaged property____ Useless resort to the Deficiency Judgment Act of 1941 to establish fair market value and thus the net amount of the deficiency can in no way change the nature of the judgment from a judgment de terris to one in personam.

Thus mortgagees who have purchased property at a sheriffs sale after obtaining a judgment in mortgage foreclosure can only recover the deficiency if they obtain a personal judgment, and, in the proceeding in which they have obtained the personal judgment, have filed a petition for deficiency judgment within six months of the execution sale. Zytnick, supra. Where the mortgagee obtains only an in rem judgment in mortgage foreclosure and in the in rem mortgage foreclosure action proceeds to petition for a deficiency judgment, i.e., a personal judgment, the proceedings are “void at law.” Meco, Id.

The only exception to the rule that a deficiency judgment cannot be assessed in an action for mortgage foreclosure is when the mortgagee’s complaint in mortgage foreclosure requests both an in personam and an in rem judgment and no objection is made thereto by the mortgagors. Kretschman v. Stoll, 238 Pa.Super. 51, 352 A.2d 439 (1975). In Kretschman, however, the court specifically did not address the issue whether a deficiency judgment could be obtained in a mortgage foreclosure action where the relief requested was for a judgment in personam as well as in rem and the mortgagors objected, as the mortgagors here did, to the joinder of the two causes of action.

In this case, the judgment in mortgage foreclosure obtained on May 17, 1984 was strictly an in rem judgment. Although the trial court did not dismiss or strike the second count in assumpsit as requested by appellees, the trial court severed the in rem action of mortgage foreclosure from the in personam action on the note at the request of the Bank. Because the two causes of action were severed, and because the judgment of May 17, 1984 was entered at the conclusion of only the in rem mortgage foreclosure proceedings, the judgment of May 17, 1984 was only an in rem judgment. Therefore, the exception established in Kretschman is inapplicable here. The trial court, also, therefore, lacked jurisdiction to consider the deficiency judgment petition which was filed in the in rem mortgage foreclosure action, and the deficiency judgment proceedings were void under Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). The judgment entered establishing the deficiency was void and must be vacated.

The effect of a void judgment is that it must be treated as having never existed.

A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based thereon.
Although it is not necessary to take any steps to have a void judgment reversed or vacated, it is open to attack or impeachment in any proceedings, direct or collateral, and at any time or place, at least where the invalidity appears upon the face of the record. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.
In short, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It accordingly leaves the parties litigant in the same position they were in before the trial.

46 Am.Jur.2d Judgments § 49. We therefore vacate the judgment of March 27, 1985 entered on the void order filed on March 15, 1985.

APPEAL AT No. 872 PITTSBURGH, 1985

In this appeal, the Bank raises three issues: 1) whether the trial court lacked jurisdiction to enter the order of June 11,1985 because an appeal had been filed on March 27, 1985 from a prior order; 2) whether the court erred in granting the appellees’ requested relief because it violated its prior procedural order of April 15, 1984; and 3) whether a judgment by confession can be obtained and maintained independently of the right to proceed under the Deficiency Judgment Act.

A.

The trial court stated in its opinion of June 11,1985 (p. 4, n. 7):

Because we find that the judgment entered by the prothonotary against the individual defendants in this case is void as a matter of law, and further that the appeal is interlocutory and not based upon a valid final judgment, we rely on Pa.R.A.P. No. 1701(b)(1) and (6) as authority to proceed in this matter.

While we agree with the trial court that the judgment of March 27, 1985 was void, the judgment was an appealable final judgment. Once an order establishing the fair market value of the real estate had been entered and judgment had been entered thereon establishing the amount of the deficiency, there was no further action which could have been taken except execution on the judgment. The order on which the judgment was entered is complete as to all the parties and as to the only issue involved. Therefore, it terminated the litigation and the judgment entered thereon was final and appealable. Hall v. Lee, 285 Pa.Super. 542, 428 A.2d 178 (1981). See also: Cheltenham Federal Savings and Loan Association v. Pocono Sky Enterprises, Inc., 305 Pa.Super. 471, 451 A.2d 744 (1982) (appeal taken from a judgment entered on an order establishing the fair market value of property on a petition for deficiency judgment and considered on the merits on appeal). However, the March 27, 1985 judgment, which was the subject of the first appeal, related only to the action in mortgage foreclosure. Therefore, the appeal from the March 27, 1985 judgment divested the trial court of jurisdiction only with regard to the mortgage foreclosure action. To the extent that the June 11, 1985 order and the judgment of July 1, 1985 attempted to strike off the deficiency judgment in the mortgage foreclosure action and attempted to dismiss the petition to fix deficiency judgment, the trial court was without jurisdiction to proceed and therefore that portion of the order of June 11, 1985 and the judgment of July 1, 1985 entered thereon is void and must be vacated.

The June 11, 1985 order, however, also related to a petition to have the confessed judgment marked satisfied. This petition was filed at the same term and number as the confessed judgment, which is a different term and number than the mortgage foreclosure action. However, the prohibition against further proceedings in the trial court contained in Pa.R.A.P. 1701(a) is limited to those particular items, claims or assessments involved in an appeal. Pa.R. A.P. 1701(c). Because the March 27, 1985 judgment, which was already on appeal, did not relate to the confession of judgment action but related solely to the establishment of a deficiency in the mortgage foreclosure action, the trial court had jurisdiction to consider the petition to have the confessed judgment marked satisfied. Similarly, the trial court had jurisdiction to consider the petition to dismiss the complaint in assumpsit because the petition did not relate to the mortgage foreclosure action, which was on appeal, but to a separate cause of action which had been severed from the cause of action to which the March 27, 1985 order related. Therefore, that portion of the July 1, 1985 judgment which struck off the deficiency judgment and dismissed the Bank’s petition to fix a deficiency judgment must be vacated because the trial court was without jurisdiction to enter it.

B.

Appellant’s second issue as stated in its Statement of Questions Involved is “Did the lower court err in granting the prayers of the debtor’s petitions by its order of June 11, 1985, because the lower court violated its own prior procedural order of April 4, 1984, by so doing and for other reasons?” In the body of the brief, appellant argues that the June 11, 1985 order was erroneously entered because 1) the trial court violated its own prior order of April 4, 1984 establishing the procedure to be followed; 2) the judgment which was entered in the mortgage foreclosure action was both in personam and in rem under Kretschman v. Stoll, 238 Pa.Super. 51, 352 A.2d 439 (1975), and therefore a petition for deficiency judgment was properly filed in the mortgage foreclosure action; 3) by filing an answer and counterclaim to the assumpsit count and to the petition to fix deficiency, Greenville and Robert and Patricia Woods waived the right to raise the issue of personal jurisdiction; and 4) the Deficiency Judgment Act only requires personal jurisdiction over the debtor and not a personal judgment against the debtor.

Pa.R.A.P. 2116 provides:

The statement of the questions involved must state the question or questions in the briefest and most general terms____ This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby____

In Commonwealth v. Evans, 332 Pa.Super. 301, 481 A.2d 625 (1984) the court held that when an appellant purported to raise an argument under the heading “other issues,” Rule 2116 was violated and the “other issues” could not be considered on appeal. Similarly, in Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984), where appellant attempted to tack the issue of ineffectiveness of counsel onto other issues, but failed to present the claim of ineffectiveness in the statement of questions presented, the issue of ineffectiveness was waived.

In this case, the phrase “and other reasons” tacked onto the end of appellant’s second statement of questions involved does not suggest the appellant’s argument regarding the nature of the judgment entered in the mortgage foreclosure action, appellees’ waiver of personal jurisdiction, or the relevance of personal jurisdiction to a deficiency judgment, which issues are discussed in the body of the brief. Because Rule 2116 is in the highest degree mandatory, based on Evans and Duden and Rule 2116, we hold that appellant has not properly presented the issues regarding the in personam or in rem nature of the judgment entered in the mortgage foreclosure action, appellees’ waiver of personal jurisdiction, and the relevance of personal jurisdiction to a deficiency judgment. Thus the only portion of the second issue which is properly before us is whether by filing the order of June 11, 1985, the trial court violated its procedural order of April 5, 1984.

The opinion accompanying the order filed on April 5, 1984 states in part:

We believe the best course in this case is to sever the two actions with the understanding that the assumpsit action shall be held in obeyance (sic) until the mortgage foreclosure action has been completed. It may then be determined whether there is a deficiency and the plaintiff can then proceed accordingly with the assumpsit action.

Trial court opinion of April 5, 1984 at 5. Appellant argues that because of this language, it was proper for appellant to file the Petition for Deficiency Judgment in the mortgage foreclosure action and that the order striking the judgment because the petition had been filed in an in rem mortgage foreclosure action was contradictory to the court’s order and opinion filed April 5, 1984. We find it unnecessary to address this issue since that portion of the June 11, 1985 order striking the March 27, 1985 judgment is void due to the trial court’s lack of jurisdiction. However, even if the trial court had had jurisdiction to strike the judgment, we would be precluded from addressing this issue because appellant has preserved for appellate review no issue regarding the granting of the Petition to Strike the deficiency judgment.

No answer to the appellee’s Petition to Strike the deficiency judgment was filed of record. Although the record before us includes a document which purports to be an answer to the Petition to Strike the deficiency judgment, there is no indication that this document was ever properly filed and properly made a part of the official record in this case. The document is not included in the list of docket entries certified to this Court and the document is not time-stamped by the Prothonotary. Furthermore, there is no affidavit of service accompanying the document which would indicate that it had been duly served on the appropriate persons. Because there is no indicia that this document was filed and made a part of the record, it is dehors the record and we cannot consider it. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); General Accident Fire and Life Assurance Corp. Ltd. v. Flamini, 299 Pa.Super. 312, 317, n. 3., 445 A.2d 770, 773, n. 3 (1982). In the absence of an answer raising objections to the Petition to Strike the deficiency judgment, no issue concerning the propriety of the order striking the judgment has been preserved. See: Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

C.

Appellant’s third issue is that it was error for the trial court to direct that the confessed judgment against the individual appellees be marked satisfied because a creditor has the right to maintain independent actions for a confessed judgment and for a deficiency judgment. While it is true that a creditor can maintain an action to confess judgment independent of a petition for deficiency judgment, this fact is irrelevant to the question involved here of whether a creditor’s failure to obtain a deficiency judgment can affect an independent confessed judgment.

The Deficiency Judgment Act provides:

If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within [six months], the debtor, obligor, guarantor, or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, ... may file a petition ... setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, ... shall direct the clerk to mark the judgment satisfied, released and discharged.

42 Pa.C.S. § 8103(d) (Emphasis added.) Under the Act, the debt from which anyone obligated to pay the debt can be discharged if a timely and proper deficiency judgment petition is not filed is the debt on the note accompanying the mortgage. Although numerous persons may be liable for this debt, there is only one debt. Therefore, even though there may be multiple judgments for payment of this debt, which may include confessed judgments and judgments obtained in assumpsit actions, anyone against whom such a judgment has been entered, has the right under the Act to petition the court to have the judgment marked satisfied, released, and discharged.

The only prerequisites under the Act for an order marking a judgment on a note satisfied, released and discharged are that there has been a sale of the real estate and that no petition has been filed within the time limited by the statute to establish the fair market value of the property sold. In this case, the record shows that there was a sale of the real estate and that no petition was properly filed within the time provided by statute to establish the fair market value of the property. Therefore, upon the petition of appellees, against whom confessed judgments had been filed on the note which represented the same debt secured by the mortgaged property which had been sold at the foreclosure sale, the trial court properly marked those judgments satisfied, discharged and released.

The judgment in the appeal at No. 408 Pittsburgh, 1985 is vacated. The judgment in the appeal at No. 872 Pittsburgh, 1985 is vacated to the extent that it struck the judgment of March 27, 1985 and dismissed the petition to fix deficiency judgment; it is affirmed to the extent that it ordered the confessed judgments to be marked satisfied, discharged and released, and to the extent that it dismissed the complaint in assumpsit.

      . 42 Pa.C.S. § 8103.

      . See: Signal Consumer Discount Co. v. Babuscio, 257 Pa.Super. 101, 390 A.2d 266 (1978) and People's National Bank of Lebanon v. Noble, 338 Pa.Super. 177, 487 A.2d 912 (1985) which suggest that it may be improper to join in rem and in personam claims in a complaint in mortgage foreclosure.

      . Although appellant refers to this order as the order of April 4, 1984, we shall refer to the order as the order of April 5, 1984, the date on which the order was filed and docketed.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    533 A.2d 165
    Bernice SAGALA, Administratrix of the Estate of Steven J. Sagala, Appellant, v. J.O. TAVARES, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1987.
    Filed Nov. 4, 1987.

      Donald J. McCormick, Pittsburgh, for appellant.
    Thomas M. Lent, Erie, for appellee.
    Before ROWLEY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Appellant-Bernice Sagala, Administratix of the Estate of Steven J. Sagala, Decedent, filed a medical malpractice action against Appellee-Dr. J.O. Tavares, seeking compensation for the death of her husband. The action was based on Appellee’s alleged failure to obtain Decedent’s informed consent prior to performing surgery. Following trial, a jury rendered a defense verdict. Post-trial motions were denied, judgment was entered on the verdict, and this appeal ensued.

On appeal, Appellant argues that the trial court erroneously charged the jury regarding a plaintiff’s burden of proof in an informed consent case. Appellant also contends that expert testimony concerning prevailing medical standards in advising patients of the contraindications of certain medical procedures was erroneously admitted. We agree and reverse.

A brief summary of the facts is appropriate. In January, 1979, Decedent consulted Appellee regarding problems that he had been experiencing with his feet. Appellee recommended surgery to alleviate the discomfort; and, based on this advice, Decedent agreed. The operation was performed on January 30, 1979. Shortly after his February 6, 1979 hospital release, Decedent died of a bilateral pulmonary embolism, which resulted from the surgery. Appellee concedes that he did not advise Decedent that a pulmonary embolism was one of the risks associated with this type of surgery.

Appellant alleges that the testimony of two expert witnesses was improperly admitted insofar as they were permitted to testify as to whether or not it would have been medically proper to advise Decedent that a pulmonary embolism might result from the foot surgery. Appellant first disputes the admissibility of testimony by Dr. C. McCollister Evarts, an expert called by Appellee. During the course of testimony, the witness stated that “we do not instruct our patients that this [pulmonary embolism] is a complication or a possible complication.” (V.D., 9/6/85, 35-36). Later, Dr. Evarts was asked the following question:

Q. Based upon the patient’s [Decedent’s] past history and the records you’ve read, and in your opinion as a surgeon, do you have an opinion within a reasonable degree of medical certainty of whether it would have been medically proper within reason for Dr. Tavares to have warned Steven Sagala of the possibility of a pulmonary embolism?
A. Yes, I do.
Q. What would that opinion be?
A. I don’t feel—I feel it’s a remote possibility, and one does not mention remote possibilities when obtaining informed consent.

(V.D., 9/6/85, 39).

Next, Appellant challenges the testimony of Dr. Paul W. Layden, another expert witness called by Appellee. This witness was asked:

Q. [I]n your opinion, is the risk of pulmonary embolism in connection with an operation on the forefoot, of the type we had here in this case, is that risk sufficiently remote that it need not be dealt with or considered, it need not be considered in dealing with any patient?
THE COURT: I think you want to strike out the word “dealing,” and, if you will, rephrase it, Mr. Schaaf.
Q. The thing of it is, Doctor, this risk is so remote it need not be considered when you are dealing with any patient.
THE COURT: Do you understand the question, Doctor? Because we want to be very specific, and I want you to answer that question.
A. The answer is yes.

(N.T., 6/11/86, 54-55).

We agree with Appellant’s position that this type of testimony was improperly submitted to the jury. The doctrine of informed consent is grounded upon the tenet that a physician is precluded from administering to, or operating upon, a mentally competent adult patient in non-emergency situations absent that person’s consent. Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371, 1373 (1986). Consent to medical treatment is valid if:

the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s, would deem significant in making a decision to undergo the recommended treatment ... The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment.

Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 650 (1971). In essence, this is the prudent patient standard. Therefore, in determining whether a physician breached his duty to his patient, “the standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Festa, supra, at 511 A.2d at 1375. Materiality is established by a two step process. First, the trier of fact must be supplied with expert information as to the nature of the harm and the probability of it occurring. However, it is the trier of fact, not the expert, who must decide the materiality of the risk involved and whether the probability of that type of harm is a risk which a reasonable patient would consider in rendering a decision on medical treatment. Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606, 608 (1987).

In the case at bar, the two expert witnesses should not have been permitted to comment on whether or not members of the professional community would have apprised Decedent of the possibility of pulmonary embolism. Insofar as Pennsylvania has adopted the reasonable patient approach, evidence of professional standards incorrectly invites the jury to consider whether the physician acted in conformance with the customary practices of other physicians. In Cooper, supra, we commented on the use of expert testimony to establish the medical community’s standard of disclosure:

[although we have a high regard for the professionalism of the medical community, the standard of disclosure exercised therein bears no inherent relationship to the amount of knowledge that any particular patient might require in order to make an informed choice.

Cooper, supra, at 286 A.2d at 650 (emphasis supplied). Indeed, the jury’s consideration must center on what information the particular patient needed in order to make an intelligent decision. “There is no need to extend the requirement of expert testimony into areas where no technical expertise is necessary.” Cooper, supra, at 286 A.2d at 651. The determination of what a reasonable patient would do or consider significant under certain circumstances is “standard fare for jurors”, for which expert assistance is not necessary. Id. at 286 at 651. We are of the opinion that the introduction of the professional customs testimony usurped the role of the trier of fact and introduced principles that were incompatible with the reasonable patient standard adopted by this Commonwealth. Accordingly, we must vacate the judgment and remand for a new trial.

The next area of consternation deals with the trial court’s charge to the jury. We are mindful of our appellate scope of review. In reviewing the sufficiency of a jury charge, we must examine the charge in its entirety to determine whether or not error was committed and whether that error prejudiced the complaining party. “If the charge is erroneous in a basic sense and the extent to which it might have been prejudicial to the complaining party cannot be determined, the grant of a new trial is proper.” Murphy v. Publicker Indust., 357 Pa.Super. 409, 414, 516 A.2d 47, 50 (1987).

Appellant draws our attention to that aspect of the jury charge in which the trial court set out Appellant’s burden of proof to the jury:

[i]n this case, Mrs. Sagala has the burden of proving two things:
(1) that Dr. Tavares did not adequately explain to her husband the risks and possible adverse consequences of the recommended surgery or that Dr. Tavares did not adequately explain methods of treatment, other than the recommended surgery;
(2) That if a reasonable person in Mr. Sagala’s condition had known the risks and possible adverse consequences of the recommended surgery, that a reasonable person would not have undergone the surgery.

(N.T., 6/12/86, 143). The substance of these instructions was repeated throughout the charge. (N.T., 6/12/86, 143, 150).

Further, Appellant points to that portion of the jury-instructions in which the trial judge rendered the “special jury findings”. The second question read:

‘[i]f you find the risk of pulmonary embolism was one in which a reasonable man in the position of Stevén J. Sagala would consider material to his decision whether or not to undergo treatment, would the reasonable man in the position of Steven Sagal have consented to the surgery despite disclosures of that risk?’ And, again, the answers are yes or no, and if your answer is yes, you must find for the defendant. If your answer is no, you must find for the plaintiff.

(N.T., 6/12/86, 161).

Appellant complains that the jury instruction misstated the law of informed consent with respect to what must be proven by a plaintiff. We agree. It bears repeating that the standard is whether the defendant-physician disclosed all the facts, risks, and alternatives that a reasonable person in the situation, which the physician knew or should have known to be the plaintiff-patient’s, would declare significant in making a decision to undergo the recommended treatment. Jozsa, supra, at 528 A.2d at 607, quoting Cooper, supra, at 286 A.2d at 650. It was improper for the trial court to add that a jury verdict for the plaintiff could only occur when the reasonable patient in Decedent’s position, knowing of the risk of pulmonary embolism, would not have consented to surgery. The law in this area of informed consent does not mandate that a risk is material only if its disclosure would result in the patient’s decision to refuse medical treatment. The primary focus of Pennsylvania law with respect to informed consent is to guarantee that a patient is supplied with all the material facts from which an intelligent choice as to medical attention may be reached, regardless of whether the patient chooses rationally. Cooper, supra, at 286 A.2d at 650. Recovery is based on the administration of surgical procedure in the absence of the patient’s informed consent, not on whether the patient would not have gone through with the operation if warned of a particular danger. As a practical matter, an operation performed without informed consent is a technical battery, which makes the physician liable for any injuries resulting from that invasion. Id., at 286 A.2d at 659. Thus, this aspect of the jury charge was prejudicial to Appellant's case.

Finally, Appellant posits that the trial court incorrectly introduced negligence principles into the case when advising the jury of the physician’s duty to inform:

[e]ven if a doctor did not stress possible ill effects reasonably based upon his own experience and education, but if he did reasonably explain the possible benefits of the surgery and the dangers attendant to the surgery if the surgery were performed as well as the alternative methods of treatment and the dangers to the patient if the surgery was not performed, then, in such case, a jury would find in favor of the doctor, since the doctor should not be placed in the position of talking the patient out of the treatment which he reasonably believes to be necessary and safe.

(N.T., 6/12/86, 149). The above-cited portion of the charge erroneously diverted the jury’s attention to whether the defendant-physician conformed to the standard of disclosure of the reasonable practitioner in his community. Once again, Cooper, supra, is dispositive. In Cooper, we noted the fundamental difference between malpractice suits and informed consent cases. In the former, “the gist is whether the physician failed to conform to accepted medical practice.” In the latter, “the salient question is whether the patient made an effective assent to treatment.” Id. at 286 A.2d at 651. Based on this distinction, the jury was incorrectly directed to consider Appellee’s action in light of what he reasonably believed was necessary and safe.

Judgment reversed. Case remanded for new trial. Jurisdiction is relinquished.

ROWLEY, J., concurs in the result.

      . The term "V.D.” refers to the videotape deposition.


author: POPOVICH, Judge:

text:
    533 A.2d 169
    The FEDERAL LAND BANK OF BALTIMORE, Appellant, v. Robert SUSTRIK and Priscella Sustrik. The FEDERAL LAND BANK OF BALTIMORE v. Robert M. SUSTRIK and Priscella J. Sustrik. Appeal of Mike SUSTRIK, Jr. and Irene Sustrik, His Wife, Exceptants.
    Superior Court of Pennsylvania.
    Argued June 4, 1987.
    Filed Nov. 5, 1987.

      Stephen D. Marriner, Jr., Washington, for appellant (at 1394) and appellee (at 26).
    Oliver N. Hormell, California, for Sustrik appellants (at 26) and appellees (at 1394).
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves cross-appeals from a dismissal by the Court of Common Pleas of Washington County of the exceptions to its order of September 4, 1986, which was reduced to judgment on October 4, 1986. We affirm and modify.

Our review begins with the September 7, 1984 filing of a civil complaint by The Federal Land Bank of Baltimore (“Bank”) at No. 84 September Term, 1984 A.D. charging Robert M. Sustrik and Priscella J. Sustrik, his then wife, with failure to honor a 1982 note in the amount of $37,-500.00. The money was also secured by a purchase money mortgage on realty hereinafter known as the Ames Farm. Suit was brought under the note and not the mortgage.

Because divorce proceedings had been commenced by the time the complaint had been filed, separate responses were submitted on behalf of Robert and Priscella, the substance of which is not herein relevant.

A trial was held on November 5,1984, the result of which culminated in counsel for all parties acknowledging that the Bank was entitled to judgment in the amount of $45,565.54. Further, at the commencement of the proceedings, counsel for Robert advised those present that, despite not being named in the pleadings, he was noting his appearance for Michael and Irene Sustrik, Robert’s parents, and lodging an objection in that:

The Bank’s recovery should have been limited to the amount of money due it as of the time an offer to purchase the mortgage from the Bank was made by Michael and Irene “at least one year” previously.

Counsel also asked to be given 45 days to determine the manner in which he wished his exceptions to be decided, i.e., either by appeal or by a petition to open, or whatever other legal procedure he deemed appropriate. It was so granted by the court, and judgment was then entered against Robert and Priscella and in favor of the Bank.

On February 1, 1985, the Bank filed a Praecipe For Writ Of Execution with the prothonotary (No. 1 February Term, 1985 E.D.) directing the sheriff of Washington County to sell a tract of land (“West Pike Run Township Farm”) that, although titled to Robert and Priscella, was subject to a 1973 mortgage recorded in the names of Michael and Irene as mortgagees.

In a separate affidavit, the Bank listed those individuals of record having an interest or lien in the property to be sold, e.g., counsel for Priscella in her divorce action (“Attorney Kusturiss”) and Robert’s parents, Michael and Irene. See Pa.R.Civ.P. 3129(a)(2).

The sale of the West Pike Run Township Farm on April 12, 1985 caused the filing of exceptions by Michael and Irene to the sheriff’s proposed schedule of distribution. Rule 3136(d).

The sale netted $41,000.00 and, after deducting the sheriffs costs, listed Attorney Kusturiss as having “Lien # 1” in the amount of $4,447.17. Next in line was the Bank, listed as being owed $34,175.06. In their exceptions, it was the contention of Michael and Irene that the court direct that payment be made in the following sequence:

(a) A debt secured by a mortgage dated June 5,1973, and recorded in the Recorder’s Office on June 20, 1973, in Mortgage Book Vol. 784, Page 13 in an amount of $38,000.00, principal plus interest $9,278.39 being interest to date for a total of: $47,278.39
(b) A debt for which a Judgment was ordered on April 27, 1984, and filed in the Prothonotary’s Office at No. 348, April Term, 1983, in an amount of $33,000.00, principal plus $3,191.52 being interest to date for a total of: $36,191.52
(c) A sum due Mike Sustrik, Jr. and Irene Sustrik, his wife, for taxes paid under the terms of the mortgage aforesaid: $1,065.65
(d) A sum due Mike Sustrik, Jr. and Irene Sustrik, his wife, for insurance paid under the terms of the mortgage aforesaid: $228.00
(e) Priscilla J. Sustrik and Michael E. Kusturiss, Esq., vs. Robert Sustrik, filed 19 May Term, 1984, entered May 10, 1984 and
(f) Federal Land Bank of Baltimore vs. Robert M. Sustrik and Priscilla J. Sustrik, filed September 7, 1984, for a Judgment entered November 5, 1984.

These same objections were communicated to the sheriff by letter dated April 10, 1985, and were read at the sale.

The record discloses a second Praecipe For Writ Of Execution being filed by the Bank (No. 3 May Term, 1985 E.D.). This resulted in the sheriff’s sale of the Ames Farm on July 5, 1985, and the monies generated therefrom were apportioned first to costs, with the balance going to the Bank. Exceptions were again filed by Michael and Irene seeking the same distribution as they had sought earlier (at No. 1 February Term, 1985 E.D.).

Both the Bank and the Sustriks (Michael and Irene) filed petitions seeking the court to direct the sheriff to place the proceeds of the two sales “at interest” pursuant to Pa.R. Civ.P. 3136(g). These were duly granted, as well as an order appointing an auditor to hear evidence on the proper distribution of the proceeds. Id. at (f).

The auditor’s report was filed on December 3, 1985, and recounted how Michael and Irene conveyed to their son (Robert) and then daughter-in-law (Priscella) the West Pike Run Township Farm in 1973. As security for payment on the property, Michael and Irene took back a purchase money mortgage in the amount of $38,000.00. This was recorded promptly.

In 1982, Robert and Priscella executed a purchase money mortgage in the amount of $37,500.00 in favor of the Bank with regard to the Ames Farm. This was also recorded.

Prior to the issuance of a decree divorcing Robert and Priscella in 1985, a judgment was entered, pursuant to a confession note (on May 10, 1984 at No. 19 May Term, 1984 D.S.B.), against Robert and in favor of his wife’s attorney (“Kusturiss”).

Additionally, the report recounted how Michael and Irene filed a complaint in assumpsit (on April 27, 1983 at No. 348 April Term, 1983 A.D.) against Robert and Priscella seeking the recovery of $33,000.00 allegedly loaned to them to purchase the Ames Farm. In the words of the auditor, albeit summary judgment was granted to Michael and Irene and filed on the same date, “no judgment appeared in the Prothonotary’s judgment index at the time. It was not until March 1985 that Creditor Sustriks praeciped for judgment pursuant to the Order of April 27, 1984. Pursuant to the praecipe the Prothonotary indexed the judgment.”

Further, the auditor recited the Bank’s efforts to recoup the monies advanced to Robert and Priscella for the Ames Farm and the resultant default and sheriff's sale, with the attendant exceptions by Michael and Irene to the proposed sheriff’s distribution.

Likewise, the sheriff’s sale and proposed distribution of the proceeds generated from the Ames Farm sale were excepted to by the same litigants on the same grounds as the earlier disbursement.

As to the priority of the respective creditors to the funds from the sale of the West Pike Run Township Farm, the auditor concluded that the Bank had a judgment against the property as of the date the order of the court was entered, i.e., November 5, 1984.

Although Michael and Irene had an order “rendered” on April 27, 1984, as to the property in question, the auditor opined that, because the order “was not a judgment for a specific sum of money[, i]t required a praecipe for judgment” to become a lien and take precedence over the Bank’s November, 1984 judgment which, in contrast, was for a precise money judgment. Presumably, this obviated the need on the part of the Bank to praecipe to have the order entered as a judgment and, thus, be converted to a lien. In so stating, the auditor looked to 42 Pa.C.S. § 4303(a), which, in pertinent part, establishes that a judgment or order of court for the payment of money shall be a lien “with the priority provided by a statute ... when it is entered of record and indexed in the office of the Clerk of the court of common pleas____” (See Auditor’s Report at page 5)

Thus, the auditor wrote that, absent the indexing of Michael’s and Irene’s April, 1984 order of court “entering” judgment in its favor against Robert and Priscella, the Bank’s November, 1984 judgment/lien took prior in time to the Sustriks since the latter was “indexed” before the former.

Further, because there was nothing proffered to the auditor to indicate that the Bank had “actual knowledge” of the April 27, 1984 order in favor of Michael and Irene, he treated the Bank as a bona fide purchaser entitled to take prior in time to Michael and Irene with regard to the proceeds of the West Pike Run Township Farm sale.

However, as to Attorney Kusturiss’ judgment against Robert, dealing with the West Pike Run Township Farm, the auditor found that Kusturiss had actual knowledge of the April 27,1984 order entered against Robert and Priscella since he was counsel for Priscella during the divorce proceedings occurring subsequent in time to the April, 1984 order.

Nonetheless, Kusturiss’ judgment was given lien priority over the Bank’s judgment of November 5, 1984, which, in turn, was given superior status over that of Michael’s and Irene’s April 27, 1984 judgment order.

In the distribution of the proceeds of the sale of the Ames Farm, the Bank was directed to take first, then Michael and Irene and, finally, Kusturiss because of his cognizance of the unfiled judgment of the Sustriks.

Exceptions to the auditor’s report were filed by Michael and Irene and the Bank. These were dismissed and the auditor’s report was affirmed by order dated September 4, 1986. On October 6, 1986, counsel for the Bank praeciped the prothonotary to enter final judgment as to the September 4th order, and an appeal was perfected by notice of even date to this Court. In contrast, the appeal of Michael and Irene was initially filed in Commonwealth Court and, ultimately, transferred to us for consolidation with regard to argument and for appeal purposes.

The main issue posited for our review relates to whether a judgment entered and filed, but not indexed by the prothonotary as a money judgment until after a subsequent judgment was secured and indexed prior in time, is to be accorded secondary status for distribution purposes of money generated from the sale of property against which competing judgments were issued.

It is the position of counsel for Michael and Irene (appellants at No. 1394 Pittsburgh 1986) that the April 27, 1984 order entering judgment in their favor (at No. 348 April Term, 1983 A.D.) was tantamount to a lien on the Ames Farm without the need for the order to be indexed by the prothonotary, and, thus, they have priority over the Bank’s November 5, 1984 judgment as to proceeds resulting from the sheriffs sale of the same property. In support thereof, they point to 42 Pa.C.S. § 8141(4), which provides:

Liens against real property shall have priority over each other on the following basis:
* * * * * sit
(4) Adverse judgments and other orders, from the time they are rendered.

The Act of April 28, 1978, P.L. 202, No. 53, § 10(96) (Emphasis added). Thus, because judgment against Robert and Priscella (Ames Farm) was entered on April 27, 1984, Michael and Irene argue that nothing more needed to be done to insure their position against any subsequent lienor (Bank), notwithstanding their failure to have the judgment indexed before the Bank’s judgment of November 5, 1984.

Section 8141(4) requires no more than a “rendition” of an order or judgment to determine the sequence in which they are to have priority, according to Michael and Irene at page 13 of their brief. In contrast, the Bank argues that the controlling statute is not Section 8141, but, rather, 42 Pa. C.S. § 4303(a), which provides in pertinent part that:

Any judgment or other order of a court of common pleas for the payment of money shall be a lien upon real property on the conditions, to the extent and with the priority provided by statute or prescribed by general rule ... when it is entered of record and indexed in the office of the clerk of court of common pleas of the county where the real property is situated____ (Emphasis added)

The same remarks are echoed by the auditor in his report at page 5.

Our review of the statute in question discloses one (major) problem with the language quoted by the Bank at page 14 of its brief, in reconstructing Section 4303(a), i.e., the quoted verbiage above is not an accurate reflection of the statute as it was written during the time in question—1984. For example, an historical perspective of Section 4303(a) shows that, as it was originally drafted in 1976, the words “and indexed” were absent and did not appear until its amendment in 1980. However, the same terms (“and indexed”) were deleted with Section 4303(a)’s amendment on December 20, 1982, and presently reads in relevant part:

Any judgment or other order of a court of common pleas for the payment of money shall be a lien upon real property on the conditions, to the extent and with the priority provided by statute or prescribed by General Rule ... when it is entered of record in the office of the clerk of the court of common pleas of the county where the real property is situated____

The Act of December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S. § 4303(a) (Supp.1987). Thus, the Bank’s and auditor’s reliance upon the 1980 amended version of Section 4303(a), containing “and indexed” to buttress their argument that indexing is a sine qua non to establishment of a “lien” immune to assault from subsequent judgment creditors, is a misstatement of the law affecting the case at bar.

As stated most recently by our Supreme Court on this subject:

Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county. 42 Pa.C.S. Sections 4303(a)(b), 1722(b) and 2737(3). ******
The existence of a judgment lien prevents ... later lien-holders from satisfying their debt without first paying the earlier lien.

In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334-35, 479 A.2d 940, 943-44 (1984) (Emphasis added).

From the preceding, we garner that the case law and legislature (especially as to the promulgation of the 1982 version of Section 4303(a) minus “and indexing”) are continually preoccupied with the requirement that “notice” be afforded to all potential creditors, as, for example, to a prospective debtor’s financial standing, and the ultimate priority to be accorded to multiple creditors seeking to satisfy their judgments from a sometimes sparse fund.

This “notice” element is satisfied when a judgment or order is “entered of record” in the appropriate office of the Court of Common Pleas. 42 Pa.C.S. § 4303(a). As that phraseology (“entered of record”) has been expounded upon recently by this Court in Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 517 A.2d 1318 (1986), we quote from it at length; viz.:

... the great weight of authority is that the entry of judgment is a ministerial or clerical act, required to be done by the clerk of the court, ... and consists of placing a judgment previously rendered on the record, by which enduring evidence of the judicial act is afforded. While the term “entry of judgment” is sometimes used in a general sense so as to include rendition of judgment, it is most often used in a more limited and precise sense as meaning the ministerial act of spreading the judgment at large on the record as distinguished from the judicial act of giving or pronouncing judgment. There must be a compliance with statutes or rules of court regulating the entry of judgments.
******
A judgment is entered when it is spread at large on the record, and under some statutes not until then.
******
Under some statutes, however, a judgment is entered when a signed copy of it is delivered to the clerk and filed by him, although not actually transcribed on the record, or when the judgment is duly signed and filed by the clerk. So it has been held that a judgment is in law entered, at least for some purposes, at the time a proper entry thereof is formulated and given to the clerk to be entered of record.
* * * * * #
As a general rule, the decisions of all courts must be preserved in writing in some record provided for that purpose. Where a statute so requires, judgments should be entered, and for many purposes a judgment is not complete, perfect, and effective until it has been duly entered. Thus it has been broadly held that judgments take effect only from the date of entry, and that there is no judgment until it is entered of record.

358 Pa.Super. at 453-55, 517 A.2d at 1321-22, quoting 49 C.J.S. Judgments, §§ 106, 107.

When subsection (a) of Section 4303 is read in light of Lansdowne, it becomes obvious that the mere “entry” of an order of the court in favor of Michael and Irene is not, in and of itself, sufficient to constitute the “of record” requirement contemplated by either the statute or case law to meet the “notice” aspects necessary under the law to afford priority status to one creditor’s judgment over another’s.

Rather, once the order of court entering judgment has been secured, the winning party has the obligation to see to it that the judgment order is “filed” with the prothonotary, and not in the clerical sense of making sure that the case file is placed back on the shelf. It would appear that this is the context in which Michael and Irene spoke when they wrote in their exceptions to the sheriff’s sale that: “Judgment was ordered on April 27, 1984, and filed in the Prothonotary’s Office at No. 348, April Term, 1983[.]” (Record No. 28, at page 2)

We make such a determination premised upon the fact that the auditor, after conducting a hearing on the matter, wrote in his report at page 3 that: “It was not until March 1985 that Creditor Sustriks praeciped for judgment pursuant to the order of April 27, 1984. Pursuant to the praecipe the Prothonotary indexed the said judgment.” Counsel for Michael and Irene took no exceptions to this aspect of the auditor’s report.

It would appear, however, to be a procedural anomaly for Michael and Irene to praecipe to have the judgment order “indexed” if it had already been written into the judgment docket by the Washington County prothonotary. Such a syllogism is refuted by the record and practical application of normal filing procedures.

For instance, we believe that one would praecipe to have the judgment order “entered of record” by the prothonotary in the judgment docket, and the indexing of the same in a separate volume would occur as a matter of course as an extension of the ministerial duties of the prothonotary (“recording officer”), and not as a consequence of a praecipe, as the auditor’s report recounts (erroneously) as having occurred. Cf. 21 P.S. § 720-5 (Supp.1987) (“The recording officer shall enter of record and index all satisfaction pieces against the name of the mortgagee or last assignee ____”). This is buttressed by the fact that the April 27, 1984 order made no reference directing the prothonotary to enter judgment, which, in all likelihood, would have obviated the need to have a praecipe filed by the Sustriks to achieve the same result. (See Auditor’s Report at page 3)

Absent the “entry of record” in the judgment docket of this April 27, 1984 order by Michael and Irene (see note 1, supra), and there is no indication to the contrary from what we can glean from the record and briefs before us, the Bank was not on notice of the existence of the judgment order. Nor do we believe that a diligent search of the judgment docket would have disclosed otherwise since, by Michael’s and Irene’s own admission, a praecipe for entry of the order of April 27, 1984 was filed in March of 1985 to have it reduced to judgment and docketed, and not indexed since docketing precedes indexing.

Therefore, if the Bank had searched the judgment docket it could not have discovered the existence of any judgment entered against Robert and Priscella as of November 5, 1984, given the fact that the April 27, 1984 order was not praeciped by the Sustriks until March of 1985. See Coral Gables, Inc. v. Kerl, 334 Pa. 441, 443-44, 6 A.2d 275, 277 (1939); Russeck v. Shapiro, 170 Pa.Super. 89, 84 A.2d 514 (1951); South Side Bank & Trust Co. v. Wright, 153 Pa.Super. 93, 32 A.2d 918 (1943).

Accordingly, we embrace the lower court’s adoption of the auditor’s report holding the Bank to be a bona fide purchaser. See Jaczyszyn v. Paslawski, 147 Pa.Super. 97, 24 A.2d 116 (1942). The only indication to the contrary is the self-serving remarks of Michael and Irene that discussions were had between counsel for the parties in the court’s chambers, during which, supposedly, the existence of the April 27, 1984 judgment was broached in the presence of counsel for the Bank. However, a brief, and the statements contained therein, is not part of the record which an appellate court can take cognizance of without contravening established law to the contrary. See McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987). Since the allegations attributing the Bank with having “actual knowledge” of the existence of . the April 27, 1984 judgment order are proffered in the brief of Michael and Irene, we will not consider the effect of such unsubstantiated assertions upon our decision this day. Id.

Consistent with our conclusion on the priority question, we look to the “subordination rule” adopted by our Supreme Court in resolving a circular lien situation when there has been a failure by one of, for example, three creditors to make a required filing. See In re 250 Bell Road, etc., 479 Pa. 222, 388 A.2d 297 (1978), where the application of the “subordination rule” was illustrated by the use of successive mortgages; to-wit:

A takes a first mortgage which he fails to file. B takes a second mortgage, with notice of the mortgage to A, and files. C takes a third mortgage, without notice of the mortgage to A. A has priority over B (because of B’s knowledge); B has priority over C because of prior filing; C has priority over A (because of A’s failure to file and C’s lack of knowledge). In this situation, the circularity arises because of A’s failure to file.

479 Pa. at 229, 388 A.2d at 301. Further, the Supreme Court, prior to remanding to the lower court for implementation of the then new “subordination rule” in this Commonwealth, illustrated its application thusly:

Where the subordination rule is applied, the amount of A’s claim is set aside from the fund to pay C and the balance, if any, is paid to A; thereafter, the balance of the fund, if any, is paid to B; the remaining balance, if any, is paid to C and A in that order.
Thus, C, by virtue of the subordination agreement, is paid first, but only to the amount of A’s claim, to which B was in any event junior. B receives what he had expected to receive: the fund less A’s prior claim. If A’s claim is smaller than C’s, C will collect the balance of his claim only after B has been paid in full. A, the subordinator, receives nothing until B and C have been paid except to the extent that his claim exceeds the amount of C’s claim.
In applying the subordination rule to a failure-to-file circuity, subordination of A, the nonfiler who is at fault, is the obvious choice and C is the obvious choice to receive the benefit of the subordination because he took without knowledge.

479 Pa. at 233, 388 A.2d at 303. Instantly, the auditor applied the “subordination rule” to the proceeds of the sale of the West Pike Run Township Farm in the following manner:

A (Creditor Sustriks) has a judgment which is first in time, but which is filed as a record lien last in time. B (Kusturiss) has a judgment which is second in time, and which is filed first; but B has actual knowledge of A’s judgment. C (Bank) has a judgment which is third in time and which is filed second. The claim of A is set aside as a first portion from the fund to pay C, because it is subordinate to C’s claim. Any balance in that portion belongs to A. The remaining balance, if any, of the fund is now paid first to B, second to C and third to A.
In the present case the net fund, after Sheriffs costs, is $38,622.23, as of the date of sale. The claim of A (Creditor Sustriks) is $33,000.00 plus interest thereon at 6% per annum from March 15, 1985 (when judgment was first praeciped) to the sale date of April 12, 1985. The interest is $151.89, thus creating the first portion to be set aside in the amount of $33,151.89. That amount is less than the claim of C (Bank) and therefore Bank is entitled to that whole portion. The remaining balance in the fund, being $5,470.34 is payable first to Kusturiss in the amount of $4,447.17 (as per the Sheriffs proposed distribution sheet) and $1,023.17 to Bank.
It is recognized that the Sheriff is receiving interest in the fund, which has been deposited in a bank. That interest probably will be consumed in payment of the fees of the undersigned Auditor. If there is, however, any remaining interest it should be divided proportionally between those sharing in the balance of the fund, that is, 81.3% to Kusturiss and 18.7% to Bank.

(Auditor’s Report at pages 7-8)

In contrast, because there was no circuity problem among the creditors as to the proceeds from the sale of the Ames Farm, the second distribution went as follows:

... the net proceeds are payable first to Bank, second to Creditor Sustriks on their claim, and last to Kusturiss. There is no circuity problem. Bank’s lien is clearly first in time because it dates as of the 1982 mortgage recording. Kusturiss (who may be paid in full out of the proceeds of 1 February 1985 E.D.) stands back of Creditor Sustriks because he had actual knowledge of their unfiled judgment.
The net fund, after Sheriff’s costs, as of the date of the second sale on July 5, 1985, is $27,952.62. Bank is entitled to the balance due on its judgment as of that date of sale, being $48,572.04 minus what it receives under 1 February 1985 E.D., which is, hypothetically, $34,175.06. The difference, $14,396.98 should be distributed to Bank, and the remainder of the fund, being $13,555.64, should be distributed to Creditor Sustriks.
As in 1 February 1985 E.D., there is the problem of interest accruing to the Sheriff, to the extent it is not consumed by the Auditor’s fee. It should be divided proportionally, 51.5% to Bank and 48.5% to Creditor Sustriks.

(Auditor’s Report at page 9)

We find no fault with the auditor’s distribution of the revenue produced from the sales of the two farms.

However, we find fault with that portion of the order of the lower court directing that the auditor’s fee be paid out of the interest accumulated, first, out of the proceeds placed in an interest bearing account from the sale of the West Pike Run Township Farm, and, second, if the fee had not been satisfied, the interest generated from the deposit of the funds from the Ames Farm sale into an account accuring interest was to be looked to for satisfaction.

We believe the more equitable result to be, as stated by the Bank in its exceptions appealed to this Court, that the auditor’s fee be paid out of the funds before they are divided. As stated in the Bank’s brief at page 17:

All of the allowed expenses of the Sheriffs sale are deducted prior to distributing amounts to the various lien creditors except for the Auditor’s fee. There is no reason given why this fee should be treated any differently than any other expense.
The practical effect of taking the Auditor’s fee from the interest accumulated on the various funds during the period that the exceptions to the Sheriff’s sale were being litigated is to force The Federal Land Bank of Baltimore to pay the majority of the fee whereas if the Auditor’s fee is paid before the division of the proceeds from each Sheriff’s sale, then because the Federal Land Bank is paid in full and the Kusturiss Judgment is paid in full, the Mike and Irene Sustrik Judgment against their children since it is the one that is not paid in full, would be reduced by the amount of the Auditor’s fee. No argument has been raised at this point as to why the normal procedure of paying all costs out of the fund before it is divided should not be followed in this matter, particularly, where the Auditor and the Lower Court found in favor of The Federal Land Bank of Baltimore and against the position of the Sustriks.
“Ordinarily, the costs of audit on distribution of a fund are payable from the fund. Where a fund has been ordered into court by claimants acting in good faith and proper inquiry and without intending to obstruct the progress of the cause, the court will not be strict in imposing costs on them when unsuccessful but may charge the fund with the costs of the audit. Where, however, costs are unnecessarily caused, they should usually be paid by the party causing them.” P.L.E. Costs, Section 35.

There is no indication from our review of the record that the Bank attempted to stymie the resolution of this matter. In fact, as discussed infra, the Bank’s exception to the lower court’s January 8, 1986 order directing payment of the auditor’s fee out of the interest accumulated with the deposit of the sale proceeds in a financial institution is found to be meritorious by this Court.

Each of the parties linked to the distribution scheme of the proceeds at issue is the beneficiary of the auditor’s report, be it in a positive or negative sense. Therefore, we see no reason why all concerned should not bear the expense of, and absorb equally, the fee for the auditor appointed at the insistence of the parties. And, we perceive the most equitable way in allocating cost is by having one-half of the auditor’s fee paid out of the proceeds of the sale of the West Pike Run Township Farm, and the remaining half deducted from the sale of the Ames Farm, of course, after sheriff’s costs are paid. In this way, each of the parties shares in the cost of the auditor’s fee equally, which is more consistent with equitable notions of apportionment of costs under the facts here.

Thus, that portion of the lower court’s order dividing the payment of the auditor’s fee between the interest accruing on the funds from the farm sales, while in a financial institution, is stricken, with payment of the fee in question to be made in accordance with the discussion had herein. In all other respects, the order of the court below dated September 4, 1986, and reduced to judgment on October 4, 1986, is affirmed. Jurisdiction is not retained.

      . See Commonwealth v. Roberts, 392 Pa. 572, 586-87, 141 A.2d 393, 400 (1958); Jaczyszyn v. Paslawski, 147 Pa.Super. 97, 101, 24 A.2d 116, 118 (1942).

      . The court’s order of January 8, 1986, is at odds with the auditor’s allocation of the percentage of interest to be shared, if any remains, after payment of the auditor’s fee from this source.
      To elucidate, the court has the Bank listed as first in line to receive 81.3% of the overflow, with the balance of 18.7% to be allotted to Kusturiss. The auditor, in his report, has the parties reversed, i.e., Kusturiss is to receive 81.3% and the Bank is to receive 18.7%.
      We find that the auditor’s application of the “subordination rule” is accurate and must have been misapplied in transcription in the lower court’s order of January 8, 1986. (See and compare Records at Nos. 14 and 36)
      Nonetheless, because we conclude, as discussed infra, that the auditor’s fee is to be paid out of the proceeds of the sale of the farms, and not out of the interest generated therefrom, we find the error to be harmless. The reason is, once payment of the auditor’s fee is satisfied out of the proceeds of the sales, the interest can be added to the respective funds from which it was generated and distributed under the auditor’s scheme, minus utilization of the interest allocation referred to therein.

      . It may be stating the obvious, but the mortgage of Michael and Irene on the West Pike Run Township Farm, albeit perfected (“recorded”), was not taken to judgment and entered of record until after the Bank’s favorable order as to its complaint was reduced to judgment. Compare Security Bank & Trust Co. v. Pocono Web Press, Inc., 295 Pa.Super. 455, 441 A.2d 1321 (1982). Thus, the holding of the mortgage by Michael and Irene, which is unquestionably a lien, is not relevant to the disposition of the priority question regarding the competing liens turned to judgment.
      In other words, Michael’s and Irene’s failure to have judgment entered when the mortgage on the West Pike Run Township Farm fell into default gave the Bank the opportunity to have its complaint against Robert and Priscella run the gamut and resulted in the entry of judgment in their favor, which, unlike Sustriks’, was “spread on the record.” See Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 517 A.2d 1318 (1986).
      It is unquestioned in the law that the lien of a first mortgage, which all agree the Sustriks had on the West Pike Run Township Farm, is not subject to divestment/discharge, and so to the mortgagee’s right to execute on that property remains viable. See Unity Savings Association v. American Urban Sciences Foundation, Inc., 337 Pa.Super. 470, 487 A.2d 356 (1984); Public Federal Savings & Loan Association v. Neumann, 334 Pa.Super. 389, 483 A.2d 505 (1984); see also In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 479 A.2d 940 (1984) (Discussing distinction between judgment lien (general lien) and mortgage lien (specific lien)).
      However, the Sustriks were the purchasers at the sheriffs sales, and, obviously, would not execute on property they now own. This puts in perspective the objective of the Sustriks on this appeal, which, unfortunately, is not to be.

      . See note 4 on page 600.

        4. We in no way wish to imply by our holding today that "indexing” of a judgment is a condition precedent to the taking of an appeal or that the time strictures associated with the perfection of an appeal do not commence running until such an act ("indexing”) has been completed.
      The finality of an order or judgment for appeal purposes remains, as has been well documented in the case law of this Commonwealth. See U. S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985); Livolsi v. Crosby, 344 Pa.Super. 34, 495 A.2d 1384 (1985).