author: CERCONE, Judge:

text:
    618 A.2d 430
    Wade A. STRICKLER and Susan A. Strickler, His Wife v. James L. HUFFINE, Royal Insurance Company. Appeal of ROYAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1992.
    Filed Dec. 22, 1992.

      Dara A. Decourcy, Pittsburgh, for appellant.
    Edward L. Russakoff, Pittsburgh, for Strickler, appellees.
    Before ROWLEY, President Judge, and POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a civil judgment entered after an Allegheny County jury returned a verdict in favor of plaintiffs/appellees, Wade and Susan Strickler. We affirm.

Appellee Wade Strickler was injured in Fayette County on June 20, 1985 while riding as a passenger in an automobile driven by James L. Huffine. The binder of insurance which had been issued to Mr. Huffine by appellant Royal Insurance Company was cancelled effective July 28, 1985 because Mr. Huffine’s license was under suspension at the time of his application. In a letter dated August 8, 1985, appellant received actual notice of the accident from appellees’ counsel less than two months after its occurrence. Appellees subsequently initiated legal proceedings in Fayette County against Mr. Huffine. On October 14, 1985, Royal Insurance sent a letter to Mr. Huffine denying coverage. Thereafter, Mr. Huffine took no action to defend against the suit and the Stricklers received a default judgment on the question of liability on March 31, 1988. The Court of Common Pleas of Fayette County subsequently granted summary judgment versus Mr. Huffine in the amount of forty-three thousand five hundred dollars ($43,500) to the Stricklers. This appeal stems from an Allegheny County garnishment action filed by the Stricklers against Mr. Huffine and his insurance carrier, Royal Insurance Company, in an effort to collect the Fayette County damage award.

In January of 1989, the Stricklers served Royal Insurance Company (hereinafter “Royal”) with garnishee interrogatories. Royal filed an Answer and New Matter in April of 1989. In essence, Royal denied any liability on its part and refused to satisfy the Fayette County judgment entered against Mr. Huffine. At trial, the Stricklers presented copies of the Fayette County court order granting summary judgment, and a stipulation by Royal that a contract for insurance with Mr. Huffine listed as the insured was in effect on the date of the accident. After the Stricklers rested, Royal moved for a compulsory non-suit. It was Royal’s contention that the Stricklers had not established a prima facie case since they never demonstrated that Mr. Huffine had complied with all conditions precedent to insurance coverage. The trial court rejected this claim and denied the non-suit. Royal then presented its case in chief and motioned for a directed verdict. The trial judge refused to grant the motion and the jury ultimately returned a verdict in favor of the Stricklers. Royal filed post-trial motions which were also denied by the trial court. The Stricklers (hereinafter “appellees”) praeciped for entry of judgment and the instant timely appeal by Royal Insurance Company followed.

Appellant Royal has identified the following issues for our review:

I. Did appellees fail to satisfy their burden of production, in failing to offer evidence of the insured’s [Mr. Huffine’s] compliance with policy conditions sufficient to shift the burden to appellant to prove the insured’s breach of policy conditions and resulting prejudice?
In the alternative, was the evidence insufficient to warrant submission of the issues to the jury, or was appellant entitled to a directed verdict where conclusive evidence of the insured’s breach and resulting prejudice to the insurer was adduced?
II. Did the [trial] court abuse its discretion in excluding all evidence of defendant Huffine’s misrepresentation in his application for insurance that he possessed a valid operator’s license, and appellant’s consequent cancellation of the binder issued to Huffine?
III. Did the [trial] court err in refusing to instruct the jury that [defendant Huffine’s] conduct in permitting default judgment to be entered against him established prejudice to appellant?
IV. Did the [trial] court err in instructing the jury that when an insurer refuses coverage to the insured, the insured is no longer obligated to send the insurer suit papers, and in refusing appellant’s request for instruction that the failure to forward suit papers, if prejudicial to the insurer, would release the insurer from its obligations under the contract?

We shall consider these claims seriatim.

The essence of appellant’s first claim of error is that the trial court misapplied the precedential caselaw of this jurisdiction. To this end, appellant argues that it was irremediably prejudiced by the Fayette County default judgment which occurred because Mr. Huffine never notified appellant of either the accident or of the fact that the Stricklers filed suit as a result thereof. It appears to be appellant’s theory that under the law of Pennsylvania, the Stricklers were responsible for proving that on the relevant date Mr. Huffine was covered by a policy of insurance issued by Royal and that Royal suffered no prejudice by its lack of notice of the litigation which occurred prior to the garnishment proceeding underlying this appeal. Although appellant Royal concedes that it had issued an insurance binder to . Mr. Huffine which was effective on the date of the accident, Royal contends that coverage was never in effect for Mr. Huffine because he failed to pay the insurance premium when it came due. Royal also argues that it would not have issued an insurance policy in any event because Mr. Huffine allegedly made material misrepresentations on his application for insurance.

First, we find appellant’s argument specious insofar as it relies on the contention that coverage was non-existent on the relevant date because a “binder” and not a policy of insurance was in effect. “It is the custom of the insurance industry, and sound public policy, to provide on-the-spot temporary insurance coverage in the form of a binder until the application information can be verified and a formal policy issued.” Klopp v. Keystone Ins. Companies, 528 Pa. 1, 7 n. 5, 595 A.2d 1, 4 n. 5 (1991). It is well settled in Pennsylvania that a binder constitutes evidence that insurance coverage has attached at a specific time, and continues in effect until either the policy is issued or the risk is declined and notice thereof is given. Harris v. Sachse, 160 Pa.Super. 607, 612, 52 A.2d 375, 378 (1947). Accord Stevens v. Kemper Ins. Co., 384 Pa.Super. 263, 558 A.2d 113 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989). The validity of a binder is not dependent upon payment of the premium. Rossi v. Firemen’s Ins. Co. of Newark, N.J., 310 Pa. 242, 251, 165 A. 16, 19 (1932); Harris v. Sachse, 160 Pa.Super. at 615-16, 52 A.2d at 380.

We note that in the 1991 case of Klopp v. Keystone Insurance Companies, supra, the Pennsylvania Supreme Court ruled that failure to disclose material information on an application for automobile insurance entitles the insurance company to the common law remedy of contract rescission if the carrier acts within the first sixty days after issuing a binder. Under such circumstances, the insurance binder is considered ineffective to trigger liability from its inception because contract law deems the coverage void ab initio rather than as of the date on which the denial of coverage letter was issued. Klopp explicitly held that a fraudulent policyholder is estopped from making personal claims arising out of the purported policy. However, concurring opinions filed by both Justice Larsen and Justice Cappy indicate that the rights of an innocent and injured third party were neither considered nor determined by Klopp. Both concurring opinions strongly imply that where an innocent third party is concerned, the Supreme Court might be disposed to hold the fraudulent policyholder’s insurance carrier liable. A panel of the Superi- or Court was recently confronted with the issue left unresolved by Klopp, namely the precise rights of an innocent and injured third party against a carrier who has issued a binder of coverage because of material misrepresentations by the applicant for insurance. Shemory v. Keystone Insurance Company, 420 Pa.Super. 405, 616 A.2d 1036 (1992), filed November 24, 1992), holds that such a third party has no rights against the policyholder’s carrier where rescission has been sought or the issuance of a policy has been denied within sixty days of the binder’s issue date.

The outcome of the instant case is not controlled by either Klopp or Shemory, however. Royal sought neither cancellation nor rescission within the prescribed sixty day period. Although there is some dispute as to the effective date of the binder issued to Mr. Huffine, the certified record discloses that it was effective either on the 24th or 25th of April 1985. That the accident underlying the instant appeal occurred on June 20th, fifty-seven days into the binder period, is irrelevant. Royal did not attempt either to cancel the binder or seek rescission until July 28, 1985, well over sixty days after the binder’s April effective date. Within the parameters defined by Klopp and explicated by Shemory, Royal Insurance Company failed to act on a timely basis to protect its rights and is therefore ineligible to receive common law-rescission.

Further, we find no authority in support of appellant’s contention that appellees were required to shoulder the burden of demonstrating either that the insured complied with the contractual notice provisions or that appellant remained unprejudiced by the insured’s alleged failure to provide the required notice. The law of Pennsylvania is currently the exact converse of the point advanced by appellant’s argument:

We therefore hold that where an insurance company seeks to be relieved of its obligations under a liability insurance policy on the ground of late notice, the insurance company will be required to prove [ (1) ] that the notice provision was in fact breached and [ (2) ] that the breach resulted in prejudice to its position.
We recognize that prejudice is a difficult matter to prove affirmatively, but although it may be difficult for the insurance company to prove it suffered prejudice as a consequence of an untimely notice, it appears to us that it would be at least as difficult for the claimant to prove a lack of prejudice.

Brakeman v. Potomac Insurance Co., 472 Pa. 66, 76-77, 371 A.2d 193, 198 (1977) (emphasis added). It appears that appellant seeks to resurrect the strict contractual approach to insurance law which obtained in Pennsylvania before Brakeman. However, it would be inappropriate for either the trial court or for this court to ignore a plain Supreme Court pronouncement of law under the guise of following prior precedent which has been explicitly overruled by Brakeman. We agree with the appellees that the cases cited by appellant, when carefully read in them entirety and placed in their proper chronological context, are either inapplicable or actually support the trial court’s rulings concerning the plaintiffs burden of proof and whether appellees presented a prima facie case sufficient to go to the jury on the question of appellant’s liability.

We find no error by the trial court in refusing to grant appellant a directed verdict on the question of prejudice. Appellant contends that Mr. Huffine’s failure to forward notice of the lawsuit both prevented Royal from properly investigating the facts surrounding the automobile accident and precluded the insurer from participating in the defense of the original Fayette county action. However, testimony by Thomas R. Henderson, a Claims Manager who had worked for Royal Insurance Company for twenty-five years, established that Royal declined to fully investigate the accident and would have refused to participate in Mr. Huffine’s defense had timely notice been received regarding the Fayette County action. N.T. January 18-23, 1991 at 62, 67-68, 70-74, 86-87.

Mr. Henderson testified that counsel for the Stricklers provided Royal with actual notice of the accident only two months after it occurred and that, although a claims adjustor was assigned to the case, he was specifically instructed not to investigate the facts. Id at 62, 67-68, 70-71. Royal made no effort to contact the investigating police officer and never attempted to ascertain whether there were witnesses to the accident. Id at 69-70, 86. The claims adjustor was advised to refrain from travelling to Mr. Huffine’s home to interview him in person. Id Although Royal’s representatives were unsuccessful in their attempts to reach Mr. Huffine via telephone during working hours, Mr. Henderson admitted that no effort was made to contact Mr. Huffine in the evening. Id at 72. This fact was confirmed by the adjustor, Gary L. Boynes, who also stated that he never tried to meet Mr. Huffine personally. Id at 86-87.

Finally, Mr. Henderson explicitly stated on cross-examination that even had Royal received the suit papers on a timely basis, their strategy would have been to deny coverage and to refuse to participate in any defense mounted by Mr. Huffine. Id at 73-74. In light of these facts adduced by appellees at trial and regardless of who maintained the burden of proof, it appears that appellees have succeeded in demonstrating that appellant suffered no prejudice attributable solely to Mr. Huffine’s actions. We therefore can discern no basis upon which the trial court, as a matter of law, could have directed a verdict in appellant’s favor. See also Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 589, 152 A.2d 484, 488 (1959) (where a claim is potentially within the scope of an insurance policy, the insurer who refuses to defend at the outset does so at its own peril). Accord Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 618 A.2d 945 (1992) (discussing the availability of an action for declaratory judgment as a means by which an insurance company can establish whether it has a duty to provide a defense in a given case).

Royal next contends that the trial court committed abuse of discretion in excluding all evidence of an alleged misrepresentation in Mr. Huffine’s application for insurance to the effect that he possessed a valid operator’s license and that in consequence the insurance company cancelled the binder and declined to issue a policy of insurance. Appellant argues that this evidence was necessary because “[t]he essence of appellant’s defense was that [Mr.] Huffine utterly failed to cooperate in any respect with appellant, as evidenced by his failure to notify appellant of the accident, his failure to respond to appellant’s efforts to discuss the accident with him, his subsequent failure to notify appellant of the suit, and his conduct in permitting judgment to be entered against him.” Appellant’s brief at 23-24. Appellant also believes this information was necessary to its case since its absence permitted the jury to speculate that the reason the coverage was declined stemmed from Mr. Huffine’s failure to pay his premium. However, the trial court ruled that this evidence must be excluded because it was irrelevant as appellant had effectively stipulated that coverage existed at the time of the accident. Further, the trial court deemed the evidence to be unduly confusing as it might cause the jury to consider an issue not before it: whether coverage existed under the binder.

Our standard of review for evidentiary rulings by the trial court is very narrow. Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 413, 595 A.2d 1211, 1215 (1991). In general, we may reverse only for an abuse of discretion or error of law. Id. The exclusion of evidence which is irrelevant, confusing, misleading, cumulative or prejudicial is within the sound discretion of the trial court and its decision thereon will not be disturbed lightly. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985).

Appellant’s claim is completely meritless insofar as it concerns the trial court’s ruling that the evidence in question was irrelevant. The fundament of appellant’s argument is a specious quibble over the applicable definition of the term “coverage.” This question itself is irrelevant. Regardless of whether appellant is willing to concede the point, Royal stipulated that an insurance binder was in effect at the time of the accident. It is a distinction without a difference that an actual policy of insurance was never issued. As our previous discussion indicates, the binder constituted evidence that “insurance coverage” attached at a specific time and continued in effect until the risk was declined by Royal. Harris v. Sachse, supra. Royal did not decline the risk until after the accident in question occurred.

We note, moreover, that appellant was not prevented from following its chosen defense strategy by the trial court’s evidentiary ruling. On redirect, Mr. Henderson testified freely concerning the total lack of cooperation by Mr. Huffine in that he never responded to letters or telephone calls from the insurance company. See N.T. January 18-23, 1991 at 75-81. In light of these facts, we are not prepared to find that the trial court committed abuse of discretion in excluding the evidence concerning Mr. Huffine’s alleged misrepresentations as both irrelevant and unduly confusing to the jury. Nor can we discern any indication that appellant was impermissibly prejudiced by this ruling so as to mandate the grant of a new trial.

Next, appellant contends that the trial court erred in refusing to instruct the jury that Mr. Huffine’s conduct in permitting a default judgment to be entered against him established prejudice as a matter of law. In support of this claim, appellant quotes the following extract from Hargrove v. CNA Insurance Group, 228 Pa.Super. 336, 323 A.2d 785 (1974), “Simply then, if the evidence demonstrates that the insureds failed to forward suit papers, prejudice to the insurer is clearly established by the fact that a default judgment was taken against its insureds.” Id., 228 Pa.Super. at 340, 323 A.2d at 787 (citation omitted). Unfortunately, appellant failed to demonstrate at trial that the suit papers were never forwarded; appellant merely showed that Royal never received any such papers. See N.T. January 18-23, 1991 at 67; 86-87. The holding in Hargrove explicitly requires that in order to show prejudice, the insurer must prove that suit papers were never forwarded, not merely that they were never received. Hargrove v. CNA, 228 Pa.Super. at 340-42, 323 A.2d at 787-88. Appellant was not entitled to the requested point for charge and the trial court correctly refused to so instruct the jury.

Appellant’s final claim is that the trial court erred in granting appellee’s point for charge number 9 yet refusing Royal’s point for charge number 7. Appellant wanted the court to instruct the jury consistent with the following language: “If Huffine failed to forward suit papers and the other pleadings which he received in the lawsuit filed against him by the Stricklers, and such failure resulted in prejudice to Royal, then Royal is released from its obligations under the contract.” Appellant’s brief at 27. Instead, the trial court charged consistently with appellees’ modified point number 9: “Once an insurance company refuses to provide its insured with coverage, the insured is no longer obligated to send the company suit papers.” Id.

Citing DiSalle v. P.G. Publishing Company, 375 Pa.Super. 510, 565-66, 544 A.2d 1345, 1374 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 724 (1989), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989), the trial court found that appellant waived this issue by not timely objecting to the omission of any instruction on point for charge 7. The trial court also determined that appellant assented to the final version of the instruction on modified point for charge 9 and failed to timely object to the trial court’s ruling thereon. While we disagree somewhat with the trial court’s interpretation of the record, we nonetheless are in no position to grant the requested relief because we find that the trial court reached the correct result. The Superior Court may affirm the action of the trial court for reasons other than those given by the trial judge. Kline v. Blue Shield of Pennsylvania, 383 Pa.Super. 347, 351-52, 556 A.2d 1365, 1368 (1989).

Appellant maintains that Royal never agreed to the omission of point for charge number 7, but merely ceased to press the issue in order to avoid antagonizing the trial judge. We are cognizant of the difficulty faced by any trial advocate who must zealously protect his or her client’s interest in the framing of points for charge while maintaining a properly deferential relationship with the trial court. Moreover, appellant’s argument may have merit with regard to the hypothesis that at some stage of a proceeding, a mechanical recitation of objections could possibly become an exaltation of form over substance. The record in this case, however, shows no indication that the relationship between appellant’s counsel and the trial court was ever anything other than properly balanced during the discussion regarding the jury instructions both before and after the charge was given. See N.T. January 18-23, 1991 at 242-257; 273. The record does not even hint that the trial judge waivered from the appropriate role of neutral arbiter when discussing the points for charge.

Nor do we find that appellant waived this sub-issue as appellees contend. Rather, in contradiction to appellant’s claim, our inspection of the record discloses that defense counsel clearly agreed with the trial court’s decision to dispense with any instruction consistent with point for charge number 7. After appellees’ trial counsel objected to appellant’s point number 7 on the grounds that it was inconsistent with appellee’s modified point number 9 (which had already been accepted by the trial court), the following exchange occurred:

By the Court: I could say the company would be justified in refusing coverage on the basis, you know, this is what his testimony was although it was inaccurate.
I don’t know. I think it’s better to leave it [Point for Charge Number 7] out.
By counsel for appellees: Yes. Yes.
By counsel for appellant: Okay.

N.T. January 18-23, 1991 at 256-57. The Pennsylvania Supreme Court has determined that abuse of discretion is “not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused.” Kelly v. County of Allegheny, 519 Pa. 213, 217, 546 A.2d 608, 610 (1988). We see no indication that the trial judge committed an abuse of discretion in declining to instruct the jury on appellant’s point for charge number 7 in light of the above described discussion.

The second half of appellant’s argument concerning the- propriety of the jury instruction given pursuant to appellees’ point for charge number 9 has not been waived. Our inspection of the record discloses that appellant preserved an objection at- all relevant times. We will therefore consider the merits of this portion of appellant’s argument. It is well settled that when reviewing a party’s challenge to a jury charge, an appellate court will scrutinize the entire instruction against the evidence presented to determine if prejudicial error has occurred. Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa.Super. 67, 71, 602 A.2d 897, 899 (1992). We will not reverse a trial court’s instruction on the basis of isolated inaccuracies, but will only reverse if the charge as a whole was erroneous and prejudiced the complaining party. Id. Where the charge fairly and accurately apprises the jury of the relevant concepts, a new trial is not warranted. Wagner by Wagner v. York Hospital, 415 Pa.Super. 1, 14, 608 A.2d 496, 502 (1992).

Appellant objects to the trial court’s instruction that “[o]nce an insurance company refuses to provide its insured with coverage, the insured is no longer obligated to send the company suit papers.” N.T. January 18-23, 1991 at 264. In giving this instruction, the trial court followed the reasoning set forth in DeForte v. Allstate Insurance Company, 81 A.D.2d 465, 442 N.Y.S.2d 307 (1981). In DeForte, the Supreme Court of New York, Appellate Division, explained that once an insurance company has denied coverage under a policy of insurance, forwarding suit papers becomes a useless act on the part of the claimant which the courts will not require. Id. at 469, 442 N.Y.S.2d at 311. Accord Moye v. Thomas, 153 A.D.2d 673, 544 N.Y.S.2d 675 (1989). We agree with the trial court’s instruction in the instant case, but see no need to rely upon New York law as sufficient guidance is provided by Pennsylvania caselaw.

We note initially that the failure to furnish suit papers to the liability carrier does not of itself avoid the policy in the absence of prejudice to the insurer. Frank v. Nash, 166 Pa.Super. 476, 480, 71 A.2d 835, 836 (1950). Such prejudice does not exist per se but must be proven. Id. Moreover, our caselaw clearly indicates that an insured is not forced to slavishly pursue useless compliance with technical policy requirements once an insurance company has denied coverage. See Kolbe v. Aegis Insurance Company, 370 Pa.Super. 539, 537 A.2d 7 (1988), allocatur denied, 520 Pa. 576, 549 A.2d 136 (1988).

In Kolbe, the defendant insurance company disclaimed any liability by espousing the position that the policy’s coverage was not applicable to the plaintiffs claim. After the insured entered into a settlement agreement with the injured party, the insurance company then argued that it had been absolved of liability because the insured had breached the policy’s “consent to settle” clause. The Superior Court held that once the insurance company had denied coverage, it was unreasonable to permit the company to avoid answering the claim because of the insured’s alleged violation of a contractual provision. As the Kolbe panel explained,

We cannot condone the action of the [insurance company] in first denying the applicability of its policy and thereafter relying upon a consent requirement in the same policy to defeat a coverage claim. In reaching this conclusion we are also mindful of the principle that a party to a contract may not complain of a breach caused by his own default.

Id., 370 Pa.Super. at 543, 537 A.2d at 8.

As in Kolbe, the insurance company in the instant case first denied any liability to provide coverage and only thereafter attempted to defeat the claim by relying on a contractual provision within the policy itself. Thus, appellant’s defense theory rests upon the insured’s alleged material breach of a provision in a policy which, according to appellant, was never issued. Under the facts presented here, it would be unreasonable to permit appellant to prevail. Because the jury instructions provided by the trial court fairly and accurately apprised the jury of all the concepts pertinent to the instant case, a new trial is not warranted.

Judgment affirmed.

POPOVICH, J. concurs in the result.

      . The insured, defendant James L. Huffine, is not a party to this appeal.

      . The transcript indicates that there was at least one witness identified at the accident scene. Id.

      . According to the New Matter filed by appellant on April 21, 1989, Royal actually denied coverage to Mr. Huffine on October 14, 1985, well before the default liability judgment was entered in Fayette County on March 31, 1988.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    618 A.2d 438
    COMMONWEALTH of Pennsylvania, Appellant, v. Chazwick NEAL.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed Dec. 24, 1992.

      George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    David Rudovsky, Philadelphia,' for appellee.
    Before WIEAND, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the February 20, 1991 order granting a new trial due to the ineffectiveness of trial counsel. On appeal, the Commonwealth asks us to determine the following:

I. Did the trial court improperly admit the alleged “expert” testimony of an attorney purporting to be an “expert” on ineffectiveness of counsel, improperly permit the “expert” to proclaim his opinion on the ultimate legal issue, and improperly allow defendant to avoid his burden of proving ineffectiveness by improper reliance on this “expert” opinion?
II. Did the trial court err in not rejecting defendant’s meritless claims of ineffectiveness?

Commonwealth Brief at 3. For the following reasons, we affirm.

On May 8, 1990, a jury found appellee, Chazwick Neal, guilty of involuntary deviate sexual intercourse and corruption of minors. Trial counsel filed post-verdict motions. Subsequently, appellee retained new counsel who filed an amended motion for a new trial asserting the ineffective assistance of his trial counsel.

During a hearing on the issue of trial counsel’s ineffectiveness, appellee’s new counsel presented as a witness, attorney Louis Natali [hereinafter “Natali”]. Natali, who was offered as an expert on the issue of ineffective assistance of counsel, testified that trial counsel was ineffective for a number of reasons. Following the hearing, the court determined that trial counsel had indeed rendered ineffective assistance and, accordingly, granted appellee a new trial. This timely appeal followed.

The Commonwealth first asserts that it was error for the trial court to allow an attorney to testify as an expert on the issue of trial counsel’s ineffectiveness. Specifically, the Commonwealth argues that as “a trial court is not a layman requiring expert advice [, but] is fully and indeed uniquely competent to make the legal determination of whether the trial counsel’s conduct met the constitutional effectiveness standard,” by allowing the expert testimony, the court abdicated its role to determine the ultimate issue. Commonwealth Brief at 10. We find that the admission of the testimony was improper.

Nevertheless, we find that the trial court was not prejudiced by the introduction of the expert testimony. The judge stated that “I am certainly not going to be controlled by another lawyer’s opinion. I hope I can stand back and consider all of the testimony for what it is worth.” N.T. December 11, 1991, at 32. In addition, the expert did little more than present assertions that could have been framed in questions to trial counsel. Furthermore, upon conducting our own review of trial counsel’s effectiveness, we conclude that, absent the expert testimony, the record compels the trial court’s result.

We now turn to appellee’s claims of ineffective assistance of trial counsel. Preliminarily, we note that although counsel is presumed to be effective, Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 974 (1987), that presumption is rebuttable. To prevail on an ineffectiveness claim, an appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986).

Appellee raised eight claims of ineffectiveness. As we agree with his contention that trial counsel was ineffective in failing to call appellee to testify at trial, we need only address that claim.

“The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel.” Commonwealth v. Bazabe, 404 Pa.Super. 408, 590 A.2d 1298, 1301 (1991) (citations omitted).

In order to support a claim that counsel was ineffective for ‘failing to call the appellant to the stand’, [appellant] must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf.

Id. (citations omitted.)

Appellee testified that during the period of investigation and preparation for trial and during the trial, trial counsel never discussed with appellee his right to testify. N.T. 12/11/91 at 5. He also stated that he had never been arrested before nor had he ever been through a criminal proceeding. Id. at 5-6. In addition, appellee indicated that he would have chosen to testify, had he been informed of his right. Id. at 7. In response, trial counsel merely stated that although he did not specifically remember discussing with appellee the right to testify, it was his usual practice to speak to his clients about that right. N.T. 1/17/91 at 5-6. Trial counsel further conceded that it was possible that he never consulted with appellee on the matter. Id. at 10.

The record before us indicates that appellee’s decision to forego testifying on his own behalf was not an informed decision reached “after full consultation with counsel.” By not informing his client of his right to testify, counsel interfered with that right. Thus, appellee’s claim possesses arguable merit.

We next consider the second prong of the test, whether counsel presented a reasonable strategic basis for his actions. Counsel offered no reason why he would have suggested that appellee not take the stand. Moreover, in light of appellee’s testimony that he has no past criminal record that would be brought out during cross-examination, we perceive no apparent reason for such a choice. Counsel has not pointed to any strategy having a reasonable basis designed to serve his client’s interests. Therefore, the second prong has not been met.

Finally, we turn to the last prong of the test, whether counsel’s conduct prejudiced appellee. It is now well-settled that a defendant in a criminal case has a constitutionally-based right to take the witness stand and to testify in his or her own defense. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). As noted by the United States Supreme Court,. “the most important witness for the defense in many criminal cases is the defendant himself.” Id. at 52, 107 S.Ct. at 2709. “Even more fundamental to a personal defense than the right of self-representation ... is an accused’s right to present his own version of events in his own words.” Id.

This right is of utmost importance where, as here, the outcome of the case turned primarily on the credibility of the victim. The Commonwealth contends that in appellee’s amended motion for a new trial, there is no suggestion as to what testimony, if any, appellee would have offered. We disagree. First, while being questioned by the Commonwealth during the hearing following post trial motions, appellee testified that he had never seen the complainant before and had had no contact with him. N.T. 12/11/90 at 12. Second, appellee indicated that he would have offered testimony to rebut incriminating testimony of the complainant regarding appellee’s shaving prior to his appearance in a lineup. Id. at 9-10. Appellee was deprived of the opportunity to deny the charges directly and the jury was denied essential defense testimony that would have negated a key part of the Commonwealth’s case. As a result, we find that appellee was indeed prejudiced by trial counsel’s actions.

For the foregoing reasons, we affirm the order granting appellee a new trial.

Affirmed.

      . The trial judge retired from the bench before filing a Pa.R.A.P. 1925(a) opinion.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 6301.

      . The decision to admit or exclude expert testimony lies within the sound discretion of the trial court, whose decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Johnson, 399 Pa.Super. 266, 270, 582 A.2d 336, 337 (1990), allocatur granted, 529 Pa. 617, 600 A.2d 534 (1991); Commonwealth v. Emge, 381 Pa.Super. 139, 141, 553 A.2d 74, 74 (1988). However, “expert testimony is admitted only when the subject matter is beyond the knowledge or experience of the average layman. When the issue is one of common knowledge, expert testimony is inadmissible." Commonwealth v. Dunkle, 529 Pa. 168, 181, 602 A.2d 830, 836 (1992) (quoting Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976)).
      During the hearing on appellee's motion for a new trial, appellee's new counsel offered attorney Natali as an expert on the issue of ineffective assistance of counsel. The assistant district attorney objected to this testimony arguing that it invaded the province of the court in determining whether trial counsel was effective. Thus, the testimony usurped the court’s discretion to decide the issue based on the facts and the record. The trial court nevertheless allowed the testimony, reasoning that it might be helpful to the court. In so doing, the court noted that it would not be controlled by the opinion of the expert witness.
      We note that neither this court nor our Supreme Court has specifically addressed this issue. We recognize that the Supreme Court stated that “[sjhould it prove helpful, however, to a trial judge to hear such testimony, he may, but is not obliged.” Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). However, that statement was dicta as the court held that it was not error for a trial court to disallow such testimony. The court reasoned that a trial judge who was immersed in the case is in the best position to determine what a reasonably vigorous advocate would do in a case. Id. at 324-25, 513 A.2d at 386. We agree.

      . The specific allegations of ineffectiveness included: (1) trial counsel’s failure to object to expert testimony of a doctor regarding why complainant may have delayed reporting the incident; (2) trial counsel’s failure to object to the competency voir dire of the complainant in the presence of the jury; (3) trial counsel’s failure to call appellee as a witness without first consulting appellee; (4) trial counsel’s failure to object to a jury charge regarding character evidence; (5) trial counsel’s failure to effectively present character testimony; and (6) trial counsel’s failure to rebut the Commonwealth’s argument that appellee changed his appearance prior to a line-up to avoid identification. See Appellee's Brief at 2-3.

      . The instant case is readily distinguishable from cases in which it has been shown that counsel consulted with his client regarding his right to take the stand. See, e.g., Commonwealth v. Wallace, 347 Pa.Super. 248, 255, 500 A.2d 816, 819 (1985) (trial counsel not ineffective where notes of testimony indicate that discussion took place during trial in which defendant told court that he was satisfied with his lawyer’s advice not to take witness stand); Commonwealth v. Mancini, 340 Pa.Super. 592, 610, 490 A.2d 1377, 1386 (1985) (counsel not ineffective where counsel discussed implications of taking the stand and defendant opted not to testify).

      . Appellee presented the following testimony during the hearing on his post-trial motions. Following his arrest, appellee requested and the court granted a line-up. At the initial date for the line-up, appellee went to the Detention Center to select “fillers” from the prison population. He found nobody with the kind of facial hair that he had. Because the complainant did not appear, the line-up was continued. Appellee shaved his beard so that he could select fillers who did not look dissimilar. He did not attempt to unfairly change his appearance to avoid identification, since he had been ready to appear with a beard at the first line-up. N.T. 12/11/90, at 8-10. During trial, the Commonwealth argued that appellee’s change of appearance was evidence of his guilt.


author: POPOVICH, Judge:

text:
    618 A.2d 442
    COMMONWEALTH of Pennsylvania, Appellee, v. Delreese KNIGHT, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1992.
    Filed Dec. 24, 1992.

      James Stock, Asst. Public Defender, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves dual appeals from the judgments of sentence (aggregating 4-8 years imprisonment) for possession and delivery of drugs (filed at CC No. 9100183) and the commission of two burglaries, two counts of receiving stolen property, theft and criminal conspiracy (filed at CC Nos. 9014797 and 9015347) by the appellant, Delreese Knight. We affirm in part and vacate in part.

Present counsel, who is from the same public defender’s office as prior counsel, claims that prior counsel was ineffective. The standard by which counsel’s stewardship is measured is well-established; to-wit:

[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.
The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balanee tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.
Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. It is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel’s decision not to pursue the matter.
... implicit in these standards is the requirement that the defendant must demonstrate that he was harmed [prejudiced] by his attorney’s alleged ineffective assistance.

Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10, 13 (1986) (Citations omitted; emphasis in original).

In light of the fact that present counsel is affiliated with the same public defender’s office as prior counsel, the claims of ineffective representation are the equivalent of present counsel asserting his own ineffectiveness on direct appeal. In this context, the law requires a remand for the appointment of new counsel except (1) where it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless. Id.

The facts need to be recited in detail to appreciate our ruling: On February 25, 1991, the appellant was charged with receiving stolen property (at CC No. 9003125) and possession of cocaine (at CC No. 9002983). The appellant, thereafter, informed the court that he wished to plead guilty.

Prior to accepting the pleas, the court conducted a colloquy in which the appellant was advised of his right to a trial by 12 of his peers selected with his input, that a unanimous verdict had to be returned and that the Commonwealth had the burden of proving guilt to overcome his presumption of innocence. After being so advised, the appellant responded that he was pleading guilty of his own free will and because he had committed the offenses with which he was charged. N.T. 2/25/91 at 5-6, 9. The court accepted the pleas. At this same proceeding, the court agreed to try the charge of burglary (involving the home of Ms. Blanche Brown) lodged against the appellant at CC No. 9015347.

At the outset, the court, for a second time, informed the appellant of the components of a jury trial, the offenses (burglary, theft and receiving stolen property) were defined and the possible range of sentences was articulated. This was followed with the appellant’s execution of a form waiving his right to a jury.

At trial, Ms. Brown testified to hearing glass break in a room housing her furnace. When she investigated, she found the appellant in the room and asked his purpose for being there. The appellant responded that he had been employed by her landlord and was awaiting payment for services rendered.

Ms. Brown left the appellant’s company to lock the door to her apartment. When she returned, the appellant and her son’s “mountain bike”, valued at $136.00, were gone. The court took the case under advisement and, ultimately, found the appellant guilty.

On the same day as the first set of guilty pleas were accepted and the non-jury trial was conducted, the appellant pleaded guilty to an additional two counts of burglary, two counts of receiving property and criminal conspiracy at CC Nos. 9015350 and 9014797. Prior to doing so, however, the facts for each offense were recited, the appellant was advised of the possible penalties for each offense, and the rights attendant to a jury trial were reiterated. Also, the court elicited from the appellant that he was acting of his own free will.

Next, the Commonwealth stated for the record what it would have presented had the appellant gone to trial at CC Nos. 9015350 (burglary of a Lisa Gordon’s home) and 9014797 (burglary of a Michael Maneese’s home). With this, the court accepted the appellant’s pleas of guilty to each offense.

On April 26, 1991, the appellant pleaded guilty to fifteen counts of violating the Controlled Substance, Drug, Device and Cosmetic Act at CC No. 9100183. Prior thereto, the facts underlying each count were read into the record and the possible penalties were communicated to the appellant. As before, the appellant was advised of his right to a jury trial and that the Commonwealth had the burden of establishing his guilt “beyond a reasonable doubt”. After the colloquy, wherein the appellant admitted his guilt, the court accepted the pleas.

At the time set for sentencing, as herein relevant, the court entered a term of one and one-half to three years imprisonment for the burglary at CC No. 9014797, the same term of imprisonment was imposed for a second burglary at CC No. 9015347 and one to two years imprisonment was issued for possession of drugs at CC No. 9100183. Thereafter, the appellant filed a pro se notice of appeal from the judgments of sentence at CC Nos. 9014797 and 9015347 (docketed at No. 1010 Pittsburgh, 1991), and a second notice of appeal was filed pro se from the judgment of sentence at CC No. 9100183 (docketed at No. 1202 Pittsburgh, 1991). On August 8, 1991, this Court consolidated the appeals.

Initially, counsel for the appellant argues that at the guilty plea hearing conducted for the charges listed at CC No. 9100183 (fifteen counts of delivery and possession of a controlled substance), there was “no factual basis for the guilty plea ... established on the record. Thus, prior counsel was ineffective for failing to object to the inadequate colloquy or moving for its withdrawal.” Appellant’s Brief at 11. We disagree.

This being the first occasion that counsel other than counsel whose stewardship is being challenged represents the appellant, it is the appropriate stage to raise the ineffectiveness claim. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Faust, 324 Pa.Super. 492, 471 A.2d 1263 (1984). Further, despite the fact that both counsel work for the same public defender’s office, review is not precluded since the argument raised is found to be meritless. See McBee, supra.

Our review of the April 26, 1991, guilty plea hearing reveals, contrary to the position espoused by counsel for the appellant, a factual basis for each of the fifteen drug related counts against the appellant (Counts 1-5, delivery of a controlled substance; Counts 6-10, possession with intent to deliver a controlled substance; and Counts 11-15, possession of a controlled substance).

For example, the dates and to whom the controlled substances were delivered as to Counts 1, 6 and 11 were listed. The same holds true with regard to Counts 2, 7 and 12; Counts 3, 8 and 13; Counts 4, 9 and 14; and Counts 5, 10 and 15. See N.T. 4/26/91 at 4-6. As a result, the appellant’s assertion of no factual predicate for his guilty pleas to the charges at CC No. 9100183 is flawed. Accordingly, after an examination of the “totality of circumstances”, we find that the appellant acted knowingly, intelligently and voluntarily in entering his pleas of guilty. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984).

In his second claim, the appellant avers that prior counsel was ineffective for failing to seek recusal of the judge who presided over his non-jury trial at CC No. 9015347 (burglary of Ms. Brown’s residence) because that jurist was cognizant of pending drug charges and prior convictions (which followed on the heels of his earlier pleas of guilty at CC Nos. 9003125 (receiving stolen property) and 9002983 (possession of controlled substance) before the same judge). This, it is urged, prejudiced the appellant’s case.

In support of this argument, the appellant cites Commonwealth v. Simmons, 335 Pa.Super. 57, 483 A.2d 953 (1984), for the proposition that the failure to inform him of the opportunity to be tried by an “impartial judge”, versus a judge who had accepted his pleas of guilty or a trial by jury, entitled him to a new trial.

In Simmons, the defendant was charged with robbery. The accused appeared in court and admitted his guilt during an on-the-record colloquy. Later, during the same colloquy, the defendant indicated his lack of understanding when asked by the court whether he was pleading to the charge because he was, in fact, guilty. Simmons was questioned further and, at this stage, stated that he was not guilty of any of the charges and wished to have a trial by jury. A jury was selected. However, the appellant changed his mind and wished to be tried non-jury by the same judge who had just presided over his aborted plea of guilty. To protect his client’s interest, counsel requested that the judge recuse himself. The judge refused and proceeded to find the defendant guilty.

On appeal, this Court held that the trial judge should have recused himself because the defendant had acknowledged the facts underlying the charge and had admitted his guilt to the trial judge before deciding to withdraw his plea of guilty.

Instantly, unlike in Simmons, the trial judge was not presented with a plea of guilty to a charge ultimately withdrawn and tried non-jury before the same judge who heard the plea. Rather, we have a scenario in which the appellant was asking to be tried non-jury before a jurist who had accepted his pleas of guilty to offenses which were separate and distinct from the offense for which he was seeking to be tried non-jury. Prior counsel was aware of this fact. Nonetheless, counsel requested that the jurist who had accepted his client’s pleas of guilty hear and decide the separate charges of burglary, theft and receiving stolen property at CC No. 9015347 non-jury:

[Appellant’s Prior Counsel]: Your Honor, I would request that after you hear the evidence in the case to defer your decision until you hear the evidence in all the cases so that you can render a decision in each case at the end of everything so that we don’t get into a situation where the Commonwealth might ask for a different judge, or I might or the defendant might want to ask for a different judge for the next case. I know that you’re quite fair and that you can ferret out the differences in the cases, and I would make a request
THE COURT: All right, I don’t see any problem with that. So, we’ll just hear the evidence and then render a decision covering all the cases at the end thereof....

N.T. 2/25/91 at 13-14 (Emphasis added).

In this jurisdiction, it is presumed that a trial judge is capable of recognizing in himself/herself the symptoms of bias and partiality. As our Supreme Court wrote in Reilly By Reilly v. Southeastern Pa. Transportation, 507 Pa. 204, 489 A.2d 1291, 1299 (1985):

If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion.

At bar, even though there was no motion to recuse, we have evidence of the trial court’s “feel[ings]” had such a request been made, i.e., trial counsel’s inquiry of the court to refrain from rendering a decision on any charges until all cases against his client had been heard. This resulted in the court responding: “All right, I don’t see any problem with that.” We do not find, in either conduct or response, that the jurist was incapable of being impartial. Stated otherwise, we conclude that trial counsel was not ineffective for not requesting recusal, for recusal was not warranted in this case. See Commonwealth v. Irwin, 397 Pa.Super. 109, 579 A.2d 955 (1990).

The last of the appellant’s averments concerns the claim that prior counsel was ineffective for failing to present the testimony of an alibi witness at the non-jury trial conducted at CC No. 9015347 (burglary of Ms. Brown’s residence).

The appellant contends that he “told prior counsel that he was with his brother, Victor Knight, throughout the night of’ the reported burglary. Appellant’s Brief at 27. In support thereof, the appellant attaches an “offer of proof’ to his appellate brief (“Appendix B”) indicating what Victor’s testimony would have been had he testified. This Court has stated in regard to a claimed failure of counsel to produce an alibi witness that:

It is clear that trial counsel’s failure to present a possible witness is not per se ineffective assistance of counsel. Counsel need not call every person mentioned by a defendant. Moreover, a failure to call a possible witness will not be equated with a conclusion of ineffectiveness absent some positive demonstration that the testimony would have been helpful to the defense. In Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), our Supreme Court addressed the issue of whether counsel’s failure to call a known witness constituted ineffective assistance:
“If counsel’s decision not to secure [the witness’] appearance ... was based on a reassessment of its worth and a conclusion that it was of little or no value in the posture of this case, then that decision clearly had some reasonable basis designed to effectuate [the client’s] interests. In such circumstances, counsel’s conduct would not constitute ineffectiveness. Had counsel reached his decision on a basis designed to advance his client’s interest, this case would be analogous to those situations in which, as a matter of trial strategy, counsel decides not to call a witness at all.
“If, however, counsel’s failure to seek compulsory process to obtain [the witness’] testimony ... was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective. In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the [trier-of-fact] heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.” 460 Pa. at 110-111, 331 A.2d at 443. [Citations omitted in part; emphasis added]

At trial, the only witness to testify for the Commonwealth was the complainant (Ms. Brown). To rebut this, the appellant now claims that he advised his trial counsel of his brother’s testimony, which he alleges would have established his whereabouts at a location other than the burglarized residence of Ms. Brown on the evening and time in question. Under these circumstances, the witness’ alibi for the appellant “would have been the single most important possible addition to [or evidence of] appellant’s defense.” Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98, 100 (1971).

The appellant’s allegation of having communicated the existence of the alibi defense to his trial counsel is of arguable merit, and its prejudice is conceded in the law absent trial counsel’s knowledge of the existence of the alibi witness or his inability to offer some reasonable basis for not calling the witness. Id. Because resolution of this matter is de hors the record, i.e., the appellant’s claim of communicating alibi witness’ existence to counsel and/or some reasonable basis for counsel’s failure to produce the witness, a remand is necessary to permit trial counsel the opportunity to rebut the ineffectiveness claim, if he can. See Anderson, supra; see also Commonwealth v. Johnson, 298 Pa.Super. 493, 444 A.2d 1291, 1293 (1982).

Accordingly, as to the appellant’s claims raised in association with the judgments of sentence imposed at CC Nos. 9014797 and 9100183 (docketed at 1010 and 1202 Pittsburgh, 1991), they are deemed meritless. However, with regard to the claim of ineffectiveness of counsel at CC No. 9015347 (docketed at 1010 Pittsburgh, 1991), the judgment of sentence is vacated and the case is remanded for a hearing.

Judgment of sentence affirmed in part and vacated in part, with directions that the case be remanded for a hearing as more fully set forth herein. Jurisdiction is not retained.

      . Neither offense is the subject of inquiry in the present appeal. We include them in the recitation of the facts as a backdrop for the claims raised for review.

      . To the extent that counsel for the appellant argues that the pleas were defective for the court’s failure to question the appellant on the record concerning the “mandatory areas” set forth in Pa.R.Crim.P. 319, we find this contention to be specious.
      The requirement of satisfying the “mandatory” areas recited in Rule 319, as proffered by counsel for the appellant with citation to cases such as Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977) and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), has given way to the application of a “totality of circumstances” test in assessing the propriety of a guilty plea. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). Under such a standard, we have no reluctance in concluding that the appellant’s guilty pleas at the April 26, 1991, hearing were not defective, but were knowingly, intelligently and voluntarily entered. Id.

      . The verified statement of Victor Knight reads:
      VERIFIED STATEMENT
      I, VICTOR KNIGHT, was with Delreese Knight from 9:00 p.m. on July 12, 1990 to the morning of July 13, 1990. Delreese Knight was with me at all times during that evening, and we were never on the premises of 754 Tokay Street in Pittsburgh, Pennsylvania. I was willing and able to testify on Delreese Knight's behalf at his trial on July 25, 1991.
      I make this statement knowing it is subject to the penalty provided under 18 Pa.C.S. § 4904 (Unsworn falsification to Authorities)
      Date: 8/16/92 /s/Victor Knight Victor Knight
      To begin with, matters appearing in appellate briefs, be it in the form of exhibits or appendices, which do not also appear in the official record transferred to this Court are considered not reviewable by this Court. See Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).
      However, inasmuch as the present appeal is the first occasion that counsel other then counsel whose stewardship is being challenged is representing the appellant, inquiry into the issue of ineffectiveness is proper and avoids the likelihood that the failure to address the matter would surface in a Post Conviction Relief Act petition. See Dancer, supra.
      Nonetheless, we are foreclosed from examining the viability of the appellant’s claim because the resolution is de hors the record and necessitates a remand to afford trial counsel the opportunity to either refute his knowledge of the existence of the alibi witness or give some reasonable basis for his failure to call the witness. See Commonwealth v. Anderson, 410 Pa.Super. 524, 600 A.2d 577, 581-82 (1991).

      . The present record is inadequate to assess the merits of this claim. Therefore, counsel unassociated with the public defender's office should be appointed to represent the appellant on remand. See McBee, supra. If counsel is found not to be ineffective as to CC No. 9015347, the judgment of sentence may be reimposed. See Irwin, supra; Anderson, supra.


author: WIEAND, Judge:

text:
    618 A.2d 447
    U.K. LaSALLE, INC., Appellee, v. Joseph F. LAWLESS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1992.
    Filed Dec. 29, 1992.

      Joseph F. Lawless, Jr., Philadelphia, in pro. per.
    Michael Onufrak, Philadelphia, for appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

This is an appeal from an order denying a petition to strike or open a default judgment entered against Joseph F. Lawless, Jr., Esquire, in an action by U.K. LaSalle, Inc. to recover moneys allegedly due under the terms of an office lease. The trial court erred, Lawless argues, because the complaint, by which the action was commenced against him, was not properly served and, therefore, failed to support a default judgment against him. After review, we agree with appellant and, therefore, reverse.

By written agreement of lease dated July 1, 1984, LaSalle leased office space to Lawless for a period of five (5) years at a monthly rental of $1,068.42, to be adjusted in future months according to the consumer price index. In the summer of 1985, however, Lawless vacated the leased space, and a substitute tenant thereafter took possession of the premises. On or about May 18, 1989, LaSalle confessed judgment against Lawless for $12,171.02, pursuant to warrant of attorney contained in the lease. This judgment was thereafter opened on petition filed by William J.C. O’Donnell, Esquire, the lawyer employed by Lawless to represent him in that proceeding. This action, we are advised, remains open and undetermined.

On or about August 23, 1990, LaSalle filed a second action against Lawless, seeking the same damages which had been asserted in the prior proceeding. The complaint was not immediately served and was reinstated on October 30, 1990. An affidavit of service thereafter filed recites that service was “made upon the defendant’s attorney by certified mail at the instructions of his attorney.” A notice of intention to enter default judgment was sent on January 14, 1991, to Lawless and William O’Donnell, Esquire. However, the notice of intent to enter a default judgment was sent to Lawless at Suite 925, 1411 Walnut Street, Philadelphia, Pennsylvania, 19102, an office last occupied by Lawless in October, 1990. The record does not disclose that the notice was received by Lawless or by an agent acting on his behalf. Moreover, a review of the record discloses that O’Donnell’s appearance was not at any time entered on Lawless’s behalf and that Lawless has at all times represented himself in this, the second action instituted against him by the landlord. On February 28,1991, LaSalle caused a default judgment to be entered against Lawless. A motion to strike or open the judgment was denied. This appeal followed.

A petition to strike a default judgment and a petition to open a default judgment are two distinct remedies, which are generally not interchangeable. Pennwest Farm Credit, ACA v. Hare, 410 Pa.Super. 422, 430, 600 A.2d 213, 217 (1991). A petition to strike a judgment operates as a demurrer to the record. Id. As such, it is not a matter calling for the exercise of discretion. A petition to strike a judgment may be granted only where a fatal defect in the judgment appears on the face of the record. A judgment cannot be stricken when the record is self-sustaining. Clymire v. McKivitz, 350 Pa.Super. 472, 475, 504 A.2d 937, 938 (1986).

If there is no valid' service of initial process, a subsequent judgment by default must be deemed defective. In the absence of valid service, a court lacks personal jurisdiction over a party and is powerless to enter judgment against him. Deer Park Lumber, Inc. v. Major, 384 Pa.Super. 625, 629, 559 A.2d 941, 943 (1989), allocatur denied, 525 Pa. 582, 575 A.2d 11.3 (1990);. Mischenko v. Gowton, 307 Pa.Super. 426, 432, 453 A.2d 658, 660 (1982). See also: Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 466-67, 416 A.2d 549, 551 (1979).

The authorized means for effecting service on an individual defendant are contained in Pa.R.C.P. 402(a) as follows:

(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

The Rules of Civil Procedure pertaining to service of process, the Supreme Court has held, are to be narrowly construed and strictly followed. Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966); Neff v. Tribune Printing Co., 421 Pa. 122, 124, 218 A.2d 756, 757 (1966).

The record in this case reveals unequivocally that service of initial process was not made in a manner authorized by the applicable rule. The rule simply does not authorize service of initial process upon a defendant by either handing or mailing a copy thereof to the lawyer who happens to represent the defendant in a separate action. Indeed, the proposition that a lawyer who has filed an action on behalf of a client can thereafter be served as agent for the client in a separate action has been rejected uniformly by the trial courts in this Commonwealth. See: Turner v. Smack, 8 Phila. 6 (1982). A lawyer has no authority to accept service of process on behalf of his client in a suit other than that for which he was employed. Holzman v. Slutter, 42 D. & C.2d 409, 412 (Lack.1966). “[A]n attorney may not, without express authority, accept or waive service of original process by which jurisdiction of the court over the person of the client is first established.” Hopkins v. Hagenbuch, 50 D. & C.2d 531, 534 (Chest.1970), quoting 7 Am.Jur.2d, Attorneys at Law, § 146. Thus, as all courts acknowledge, where a lawyer has been served with process but does not have express authority to accept the same on behalf of his client, the court lacks jurisdiction to act against the person of the client. See: 7A C.J.S., Attorney and Client, § 196.

The record in this case does not permit a finding that Lawless either waived his right to be served with original process or authorized O’Donnell, his lawyer in a separate action, to accept service of original process on his behalf. Because of this deficiency, there is a defective record which fails to support the entry of a default judgment against Lawless. This defect, being the failure to make valid service of original process, is fatal. The record does not support the entry of a default judgment.

The order of the trial court is reversed, the default judgment is stricken, and the case is remanded to allow appellee to effect valid service of the complaint. Meanwhile, jurisdiction is not retained.

      . According to LaSalle, this amount represents the difference in rentals required by the lease and those paid by substitute tenants, plus interest and attorney's fees.


author: KELLY, Judge:

text:
    618 A.2d 450
    Nick LIAZIS, Appellant, v. KOSTA, INC., Konstantinos Tantaros and Barbara Tantaros, Appellees. Nick LIAZIS, Appellant, v. Konstantinos TANTAROS and Barbara Tantaros, and Kosta, Inc., Appellees. Konstantinos TANTAROS, Barbara Tantaros and Kosta, Inc., Appellees, v. Nick LIAZIS, Appellant. Konstantinos TANTAROS and Barbara Tantaros, Appellees, v. Nick LIAZIS, Appellant. Konstantinos TANTAROS, Barbara Tantaros and Kosta, Inc., Appellants, v. Nick LIAZIS, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1992.
    Filed Dec. 29, 1992.

      James A. Cunningham, Pottstown, for Liazis.
    John J. Miravich, Reading, for Kosta, Inc. and Tantaros.
    Before CAVANAUGH, McEWEN and KELLY, JJ.
   KELLY, Judge:

This appeal asks us to determine whether the trial court erred in denying Nick Liazis’ petition to open and/or strike the confessed judgment enforced against him by Konstantinos Tantaros, Barbara Tantaros and Kosta, Inc. The dispute between the parties arose when Tantaros, the lessor and seller of a restaurant premises and real estate parcel, alleged that Liazis, the former lessee and former purchaser, failed to make the payments required by the lease/purchase agreement and otherwise violated the lease and agreement. Four separate actions arose from the dispute. In denying Liazis’ petition to open and/or strike the confessed judgment, the trial court dismissed the other actions as moot. On appeal, the only question is whether the trial court erred in finding that Liazis’ petition failed to raise a meritorious defense and failed to set forth sufficient facts to support that defense. After a careful review of the record and the pertinent law, we find that Liazis’ petition does allege prima facie grounds for relief. Accordingly, we reverse the order denying the petition to open the confessed judgment, reverse the orders dismissing the companion actions and remand all actions for further proceedings on a consolidated basis.

On April 3, 1981, Nick Liazis and Konstantinos Tantaros with Barbara Tantaros entered into a lease and purchase agreement involving a restaurant (premises, business and equipment). The lease included an option to purchase a parcel of real estate, a portion of an undivided larger tract owned by Tantaros to be subdivided at the end of the lease term. From April, 1981 to April, 1990, Liazis made the required monthly payments directly to Tantaros. Also, the lease required Liazis to pay one-half of the real estate taxes on the entire undivided tract directly to Tantaros. However, Tantaros did not, at all times, apprise Liazis of the exact amount due in real estate taxes. As a result, Liazis had to estimate the taxes due and then pay Tantaros accordingly.

Liazis avers that in May, 1990, he asked Tantaros for an accounting because Liazis was uncertain as to how much he had paid to Tantaros and how much he still owed on the lease/purchase agreement. According to Liazis, instead of an accounting, he received from Tantaros a notice of default on August 17, 1990. In the notice of default, Tantaros premised the default on Liazis’ failure for several months to make rent, taxes and purchase payments due under the lease and purchase agreement. Tantaros then declared the lease and purchase agreement to be null and void, demanding immediate and complete possession of the premises. Twelve days later, on August 29, 1990, Tantaros locked Liazis out of the restaurant.

Thereafter, Liazis promptly sought and received a temporary injunction, posting a court-ordered bond of $5,000.00, which remains with the court to date. Liazis and Tantaros then engaged in a convoluted series of court proceedings, discovery and appeals, culminating in the instant appeal from the denial of Liazis’ petition to open and/or strike the confessed judgment and from the denial of Tantaros’ cross-petition for monetary damages.

A petition to open a confessed judgment is an appeal to the court’s equitable powers, within the court’s sound discretion, and will not be disturbed absent an error of law or clear abuse of discretion. M.N.C. Corp. v. Mount Lebanon Medical Center, 510 Pa. 490, 494, 509 A.2d 1256, 1258 (1986); First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984); Hanna v. Key Computer Systems, Inc., 386 Pa.Super. 8, 11, 562 A.2d 327, 328 (1989); Sams Corp. v. Garin, 352 Pa.Super. 105, 106-07, 507 A.2d 402, 403 (1986). Furthermore, in attempting to open a confessed judgment, the petitioner must act promptly, allege a meritorious defense, and provide enough evidence to support the defense to the extent of creating a jury issue. Pa.R.Civ.P. 2959; Fountain Hill Millwork Bldg. v. Belzel, 402 Pa.Super. 553, 557, 587 A.2d 757, 759 (1991); Zarnecki v. Shepegi, 367 Pa.Super. 230, 240-11, 532 A.2d 873, 878 (1987); Pittsburgh Nat. Bank v. Larson, 352 Pa.Super. 250, 253, 507 A.2d 867, 869 (1986). Instantly, the parties raise no questions as to the timeliness of the petition to open judgment. Hence, our attention is directed to determining whether the trial court erred in finding that Liazis’ petition neither states a meritorious defense nor provides enough facts to require submission of those facts to a jury.

Pa.R.Civ.P. 2959(e) sets forth the standard by which a court determines whether a moving party has properly averred a meritorious defense. “If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.” Furthermore, the court must view the evidence presented in the light most favorable to the moving party, while rejecting contrary evidence of the non-moving party. Continental Bank v. Axler, 353 Pa.Super. 409, 414, 510 A.2d 726, 728 (1986); Pawco v. Bergman Knitting Mills, Inc., 283 Pa.Super. 443, 454, 424 A.2d 891, 897 (1981). The petitioner need not produce evidence proving that if the judgment is opened, the petitioner will prevail. Id. Moreover, we must accept as true the petitioner’s evidence and all reasonable and proper inferences flowing therefrom. Federman v. Pozsonyi, 365 Pa.Super. 324, 329, 529 A.2d 530, 533 (1987), citing Hamilton Bank v. Rulnick, 327 Pa.Super. 133, 138, 475 A.2d 134, 137 (1984). The sufficiency standard, therefore, is identical to the standard employed in a directed verdict consideration. Continental Bank, supra, citing Greenwood v. Kadoich, 239 Pa.Super. 372, 376, 357 A.2d 604, 606 (1976).

Liazis contends that the trial court confined its review to the allegations of the petition to open judgment and ignored the pleadings, testimony, exhibits and answers, all of which were properly incorporated by reference therein. In his petition to open judgment, Liazis argues, he raised a meritorious defense and facts sufficient to create jury issues by incorporating by reference all pleadings, answers, and other matters of record from the companion cases. As such, Liazis concludes, the trial court’s limited focus on the petition to open judgment constitutes an abuse of discretion. We agree. Pa.R.C.P. 1019(g) provides:

Any part of a pleading may be incorporated by reference in another part of the same pleading or in another pleading in the same action. A party may incorporate by reference any matter of record in any State or Federal court of record whose records are within the county in which the action is pending, or any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds or register of wills of such county.

While a summary reference to another action is not enough to satisfy Rule 1019(g), “averments incorporated by reference from other pleadings have been held sufficient to support a defense raised in related proceedings.” Sams Corp., supra 352 Pa.Super. at 108-09, 507 A.2d at 404. “It has also been held that a court may consider supplemental memoranda in considering whether a petitioner alleged a meritorious defense.” West Chester Plaza Assoc, v. Chester Engineers, 319 Pa.Super. 196, 201-02, 465 A.2d 1297, 1299-1300 (1983) (citations omitted).

In his petition to open the confessed judgment, Liazis states in paragraph 5:

Defendant incorporates herein by reference as fully as though the same were here set forth at length his pleadings filed in actions between these parties in the Court of Common Pleas of Berks County, Pennsylvania at No. 6095 Equity 1990 and 4882-90 A.D., and in the event that this confessed judgment is stricken off or opened, defendant would file Answer, New Matter and Counterclaim, as more fully set forth ánd attached hereto and made a part hereof and marked Exhibit “A,” the allegations of which are incorporated herein by reference as fully as though the same were here set forth at length.

Here, Liazis explicitly incorporated pleadings from the companion actions, thereby complying with the minimal requirements of Rule 1019(g). In so doing, Liazis expanded his petition by incorporating defenses raised and facts averred in those companion cases.

As .grounds for opening the confessed judgment, Liazis states in his petition that (1) Tantaros induced Liazis to rely on Tantaros’ representations that Liazis’ payments and performance were sufficient and satisfactory; (2) Liazis was in substantial compliance with the terms of the lease/purchase agreement; (3) if breaches of the lease/purchase agreement exist, these breaches are immaterial; (4) Liazis requested an accounting of Tantaros in May, 1990, Tantaros refusing to account, specify or document any deficiencies; (5) Liazis is, nevertheless, at all times, ready, willing and able to pay once the deficiencies are ascertained. Additionally, Liazis offered exhibits and depositions in support of his defenses regarding substantial performance on the lease/purchase agreement and Tantaros’ acquiescence toward other apparently minor breaches, such as, conditions at the restaurant, its parking lot and the real estate tax deficiencies. Thus, we find that the trial court erred in confining its attention to the face of the petition and in failing to consider the record properly incorporated therein by reference.

Liazis asserts that he offered clear and convincing proof that the rental payments specified in the lease, the rental increases, his share of the real estate taxes, and the principal plus interest on the debt due for the restaurant were up-to-date when the August, 1990 lock-out occurred. In support, Liazis offers the testimony of his certified public accountant who audited the financial records, corroborating the fact that the checks paid to Tantaros were accepted and endorsed by him as well. The evidence includes the accountant’s work papers, the supporting receipts, cancelled checks and stubs. In sum, Liazis’ accountant testified that Tantaros accepted payments of over $365,000.00 which were deposited in Tantaros’ personal bank account. This $365,000.00 represents over eighty-five percent of the total amounts owed to Tantaros under the lease/purchase agreement.

In his tenth and final year under the purchase agreement, Liazis sought to apply, to the principal owed, a $15,000.00 down payment Liazis had paid Tantaros, pursuant to paragraph 3(d) of the purchase agreement. Liazis suggests that applying the $15,000.00 verified payment to the principal balance effectively reduced his monthly payments due. As of the August, 1990 lock-out, Liazis avers, he was $200.00 ahead on his payments under the purchase agreement, lease, and taxes owed. Thus, Liazis concludes, he has offered a meritorious defense to the allegedly delinquent payments.

To determine the intent of the contracting parties, we must look to the language contained in the written contract, Rusiski v. Pribonic, 511 Pa. 383, 390, 515 A.2d 507, 510 (1986), for the law assumes that the parties chose the language carefully. PBS Coals, Inc. v. Burnham Coal Company, 384 Pa.Super. 323, 328, 558 A.2d 562, 564 (1989). Judgment notes are subject to the same rules which apply to other written contracts. Germantown Mfg. Co. v. Rawlinson, 341 Pa.Super. 42, 47, 491 A.2d 138, 141 (1985). Fundamentally, every contract imposes upon the parties a duty of good faith and fair dealing in the performance and enforcement of the contract. Id. at 60, 491 A.2d at 148, citing the Restatement (Second) of Contracts § 205.

Paragraph 3(d) of the purchase agreement states that the additional $15,000.00 will be applied toward the balance due as shown in paragraph 3(b). Paragraph 3(b) states in pertinent part, “The balance of $185,000.00 shall be payable with interest at ten percent on the outstanding balance, in equal monthly installments of $2,444.90 over a ten year period____” The judgment note, which Liazis signed, states in paragraph 1(b): “An additional Fifteen Thousand ($15,000.00) Dollars to be applied toward the principal balance is due by the Debtors to the Creditors prior to November 1, 1981.” The purchase agreement sets forth no prepayment penalty nor any clause in actual conflict with Liazis’ interpretation. On the contrary, paragraph 8 of the purchase agreement specifically states that Liazis has the right to prepay any and all of the balance due without penalty. Nowhere in the purchase agreement does it state that Liazis’ payments must continue until March, 1991, as Tantaros argues. We find, therefore, that Liazis has presented a meritorious defense on the contract.

In addition, Liazis asked Tantaros for an accounting in order to determine amounts still outstanding on the debt as well as any deficiencies. Without the accounting, Liazis was left to conjecture or speculate on the outstanding debt. We, therefore, imply, as we did in Rawlinson, supra, the promise on the part of Tantaros to act in good faith by setting forth an accounting for Liazis. We find that the absence of such an accounting also constitutes a meritorious defense to the confessed judgment.

In general, equitable defenses are no longer required to open a confessed judgment unless related to a particular defense raised by the petitioner. Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977); Pittsburgh Nat’l Bank v. Larson, 352 Pa.Super. 250, 253, 507 A.2d 867, 869 (1986); West Chester Plaza Assoc. v. Chester Engineers, 319 Pa.Super. 196, 199, 465 A.2d 1297, 1298 (1983). Equitable defenses, however, are applicable to actions in ejectment. Kardos, supra, citing Wylie v. Mansley, 132 Pa. 65, 18 A. 1092 (1890).

A defendant in ejectment, who occupies the position of a vendee, if he wishes to maintain his possession, puts himself in the position of a plaintiff in equity, and whatever would entitle him to a decree there, would be sufficient, certainly, to protect him in the ejectment by the vendor.

Id., quoting Thompson v. McKinley’s Administrator, 47 Pa. 353, 355 (1864).

Both at law and in equity, forfeitures are( strongly disfavored and strictly construed. In re Estate of Fisher, 442 Pa. 421, 276 A.2d 516 (1971); Bilec v. Auburn & Associates, Inc. Pension Trust, 403 Pa.Super. 176, 588 A.2d 538 (1991), allocatur denied, 528 Pa. 620, 597 A.2d 1150 (1991); Kalina v. Eckert, 345 Pa.Super. 220, 497 A.2d 1384 (1985); Williams v. Vesley, 290 Pa.Super. 192, 434 A.2d 196 (1981). Our court seeks to avoid forfeitures particularly where there has been considerable part performance. Bedillion v. W.A. Wilson Stave Co., Inc., 271 Pa.Super. 292, 296, 413 A.2d 411, 413 (1979).

Courts developed the equitable doctrine of substantial performance as an instrument of justice designed to avoid forfeiture because of technical, inadvertent or unimportant omissions. First Mortg. Co. v. Pennsylvania v. Carter, 306 Pa.Super. 498, 502, 452 A.2d 835, 837 (1982). “Absent a willful omission, a question of substantial performance is one for the jury, not the court.” West Dev. Group v. Horizon Financial, 405 Pa.Super. 190, 200, 592 A.2d 72, 77 (1991) (citations omitted).

Instantly, the record reveals verified payments in excess of $365,000.00 to Tantaros for rent, taxes, and purchase installments. Liazis asserts that the deficiencies, if any, were caused by Tantaros’ failure to properly inform Liazis of how much Liazis owed. Moreover, Tantaros apparently accepted Liazis’ tax payments without complaint. Liazis states, however, that he was always ready, willing, and able to perform once he received an accounting from Tantaros. Liazis also contends that he kept the premises in good repair. Any deviations, he argues, were due to normal wear, weather conditions, feasibility of repair and timing. In his behalf, Liazis offered the corroborating statements of a sales-person who regularly visited the restaurant. Furthermore, Liazis was operating the business under a current restaurant license. Under these circumstances, we find that Liazis presented a meritorious defense of substantial performance with facts sufficient to carry his burden under Pa.R.C.P. 2959.

Finally, Liazis challenges the propriety of the trial court’s consideration of two statements, one by Veronica Crum, a former restaurant employee, and one by Tantaros, both of which Tantaros made part of his supplemental record. The objectionable material contained additional charges of health code and criminal violations with respect to Liazis’ alleged use of alcohol and drugs. Liazis contends that these allegations were never made part of any pleading or responsive pleading. Tantaros raised these issues for the first time in his brief in opposition to the petition to open, attaching thereto the objectionable affidavits. Taken without notice to Liazis or an opportunity to cross-examine, these exhibits constitute improper evidence. As such, Liazis concludes, the trial court erred in considering this evidence. We agree.

The standard of Pa.R.C.P. 2959 requires the trial court to determine the sufficiency of facts averred by Liazis and to reject all contrary evidence. Thus, the trial court erred because it considered the additional allegations raised in Tan-taros’ affidavits. The trial court erred (1) by allowing Tantaros to effectively amend his pleadings in this manner and then (2) by faulting Liazis for presenting insufficient evidence to directly refute the added allegations. We believe that the trial court failed to adhere to the standard or to serve the purpose of Pa.R.C.P. 2959, thereby placing Liazis in a no-win situation.

It is, therefore, evident that the record before the trial court contained meritorious defenses with sufficient facts to support those defenses. Liazis presented both legal and equitable defenses which, we hold, the trial court failed to properly consider. Accordingly, we reverse the order denying Liazis’ petition to open the confessed judgment. We also reverse the orders dismissing the companion actions, and remand all actions for trial on a consolidated basis. Jurisdiction relinquished.

      . (1) Liazis v. Tantaros, 6095 Equity 1990: Liazis sued Tantaros seeking an injunction (ordering Tantaros to vacate the restaurant) and specific performance (ordering Tantaros to sell the premises to Liazis as agreed, including the small parcel of real estate on which the restaurant sits).
      (2) Tantaros v. Liazis, 4882-90 AD: Tantaros sued Liazis seeking monetary damages for alleged breaches of the lease and agreement and a declaratory judgment that Liazis breached the lease and agreement. [Our disposition of this appeal preserves Tantaros’ potential claim to monetary damages, as requested in his cross-appeal.]
      (3) Tantaros v. Liazis, 4888-90 AD: Tantaros confessed judgment against Liazis pursuant to the lease and agreement for various breaches. Liazis filed a petition to open and/or strike confessed judgment.

        (4) Liazis v. Tantaros, 717-91 AD: Liazis prevailed in a district justice judgment and appealed seeking additional monetary damages because of his removal from the restaurant. [The decision rendered by the district justice has no res judicata/collateral estoppel effect once the parties have appealed that judgment. Pa.R.C.P.D.J. § 1007 and Note, "... the court of common pleas on appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the district justice.. ..”]

      . In the later-filed landlord/tenant complaint, Tantaros declared a forfeiture by reason of nonpayment of rent, nonpayment of real estate taxes, failure to comply with zoning regulations, and failure to maintain premises in repair.