author: CIRILLO, Judge: HOFFMAN, Judge,

text:
    670 A.2d 671
    The MARIAN SHOP, INC., t/a & d/b/a J & J Check Cashing and John Mace, and Marian Lentz v. John BAIRD and Catherine Robinson, and Beneficial Savings Bank. Appeal of John BAIRD.
    Superior Court of Pennsylvania.
    Argued Aug. 9, 1995.
    Filed Jan. 8, 1996.

      Alfred Marroletti, Philadelphia, for appellant.

      Edward Reif, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

John Baird appeals from an order of contempt entered in the Court of Common Pleas of Philadelphia County. We reverse.

. A former business partner of John Baird brought a civil action against Baird alleging that he had wrongfully removed money from the check cashing business they operated together. The plaintiff filed an emergency petition asking the court to enter an order enjoining Baird from further depleting the assets of the business while the underlying action was pending. Baird did not attend this hearing, however, Baird’s former attorney, Barry Harvis, was present. At the hearing, Harvis notified the court that he would not be representing Baird in the present action, but had attended the hearing to ensure that the status quo would be maintained while Baird secured other counsel for the case. Harvis later telephoned Baird and apprised him of the events that took place at the injunction hearing.

• At the hearing, the court requested that the parties agree to conditions for the injunction, draft an order reflecting those conditions, submit the writing to the court for it to. be signed, and have it entered on the docket as an enforceable order. Unfortunately, this order was never received by the judge, signed by the court, or entered on the docket.

After the injunction hearing, Baird cashed a $25,000 CD and spent its proceeds. When it was discovered that Baird had cashed the CD, the court claimed that Baird had dissipated corporate assets in violation of the injunction proceeding, and, accordingly, instituted contempt proceedings. A contempt hearing was held, which Baird attended, where the court found Baird in civil contempt. He was ordered to replace the $25,000.00 within two weeks. When the two weeks expired, and Baird had failed to pay the $25,000.00, another hearing was held. After hearing arguments, the court placed Baird in custody. Baird now appeals from the contempt order and presents the following issues for our review:

(1) Was there a legal and/or binding order barring appellant’s allegedly contumacious conduct when he negotiated a $25,000.00 certificate of deposit on March 8, 1994;
(2) Did appellant receive adequate notice of the alleged “order” of January 11, 1994; and
(3) Was there substantial, competent evidence before the trial judge from which he could have been convinced beyond a reasonable doubt that the alleged contemnor had the present ability to comply?

The right to punish for contempt is adherent in all courts. Appeal of Levine, 372 Pa. 612, 95 A.2d 222 (1953). It is a power “essential to the preservation of the court’s authority and prevents the administration of justice from falling into disrepute.” Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949). In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11 (1985). The authority of a judge, however, to hold one in contempt, “depriving as it does a person of liberty, is an authority that should be used rarely, and with extreme caution.” In re Matter of Johnson, 483 Pa. 227, 395 A.2d 1319 (1978).

Civil contempt has as its dominant purpose enforcement of compliance with an order of the court, for the benefit of the party in whose favor the order runs. C.R. By Dunn v. The Travelers, 426 Pa.Super. 92, 626 A.2d 588 (1993). The contemnor may eventually purge him/herself by complying with the order. Id. When a party complains, that there has been noncompliance with a court order, and that the other party should be held in civil contempt, the complaining party bears the burden of proving the contempt by a preponderance of the evidence. Id. at 100, 626 A.2d at 592.

It is well-settled that there are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor’s violation was volitional; and that the contemnor acted with wrongful intent. Fenstamaker v. Fenstamaker, 337 Pa.Super. at 415-16, 487 A.2d at 14. The notice requirement may be fulfilled when the contemnor has actual knowledge of the order, despite never having been personally served with the order. Id. at 417, 487 A.2d at 15. Additionally, in cases where the contemnor has this actual knowledge, he/she must also have a reliable authoritative basis for believing that he/she could be held responsible for a failure to comply with the order. Neshaminy Plaza II v. Kelly, 21 Pa.Commw. 469, 346 A.2d 884 (1975) (contempt citations dismissed when alleged contemnors were served with an informal copy of a judge’s order where mere initials appeared at the place provided for the judge’s signature on the copy).

“To be punished for contempt, a party must have violated a court order.” C.R. By Dunn, 426 Pa.Super. at 100, 626 A.2d at 592 (emphasis added). In order to support a finding of contempt, the order or decree which the contemnor has been held to have violated, must be definite, clear, and specific — leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct. Fenstamaker, supra. Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. C.R. By Dunn, supra. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. Id. Additionally, the mere showing of noncompliance of a court order or misconduct, is never sufficient, alone, to prove contempt. Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976).

In Weingrad v. Lippy, 300 Pa.Super. 76, 445 A.2d 1306 (1982), where counsel was cited for contempt of court because he failed to promptly arrive in chambers for points for charge, appellant-counsel contended that because the trial judge’s “request” was not in the form of an “order or decree” and because counsel did not receive any written notice of any order or decree, that the court order did not comply with the notice requirement supporting a finding of contempt. In dicta, however, this court mentioned that because the trial court judge stated in open court that he wanted counsel promptly in his chambers at a specified time to go over certain points for charge, the judge’s attempt to be clear concerning his directive to counsel would satisfy the contempt criteria of which appellant complained. Id. See also In re Matter of James, 328 Pa.Super. 149, 470 A.2d 174 (1984) (appellate court affirmed the finding of contempt of an attorney, where there was no written order or decree, because attorney’s failure to appear in court with a brief, after having told the judge he would appear at a certain time, demonstrated the requisite wrongful intent to support a finding of contempt).

The dicta in Weingrad, however, does not alter the fact that a party may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced. In Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976), a child welfare agency could not be held in contempt of an order directing an agency to commit a child to a “suitable shelter,” where the court order did not communicate with sufficient clarity the fact that facilities other than the chosen shelter would be considered suitable, and where the order neither suggested alternatives to the chosen shelter, nor excluded the chosen shelter. The Carros court opined that the trial court order omitted vital terms which would have instructed the alleged contemnor as to what the term “suitable shelter” exactly meant. In fact, this court acknowledged that even though the contemnor was fully aware of legislative acts that recommended certain social work principles for placement of children in shelters, the trial court could not simply state that the mere words of “suitable arrangements” would indicate exactly the type of custodial care which the court intended the appellant to provide.

The trial court, in the instant case, has hyperextended the rule of Weingrad, and, as a result, contravened the premise in Carros by holding Baird in contempt. The transcribed testimony from the contempt petition proceedings reveals testimony completely contradictory from statements made in the trial court’s opinion. Specifically, the trial court stated that Barry Harvis “had informed John Baird that he was not to cash either of the CD[’]s.” The actual testimony presented by Harvis, however, was that he had informed Baird that “the status quo should be maintained [and], that no corporate assets should be dissipated.” This actual notice, given by Harvis to Baird, mentions nothing of the disposition or state of the CDs of which Baird was held to have dissipated in violation of a court order. For these reasons, Baird did not have “actual knowledge from a reliable, authoritative basis, for believing that he could be held in contempt.” Neshaminy Plaza II, supra.

In addition to the fact that Baird was not given the requisite notice by Harvis, he was also not afforded the benefit of a clear, definite, and specific court order or decree stating that he was not to dissipate the CDs. The trial court justifies its finding of contempt, based upon an unwritten court order, by stating that because Baird was not expecting any written order from the court, he cannot claim lack of notice as a defense to his contempt finding. The trial court’s reasoning, however, is circular and unsupported. There are no cases that stand for the proposition that if a party does not expect a court order, then he or she, in effect, waives any right to notice of that order before a contempt violation will issue.

In the instant case, the trial court never docketed any order, whether in general or specific terms, indicating what assets Baird could and could not dissipate. The only guidance given to Baird was an oral recitation of the injunction hearing proceedings. This message, relayed by Harvis, was similar to the Carros instruction in that it failed to include such operative terms as CD, which “would have indicated to [Baird] that more was expected than merely an attempt to” refrain from dissolving corporate assets. Cf. Landman v. Royster, 354 F.Supp. 1292 (1973) (relied upon by Carros trial court) (contempt conviction upheld when contemnors violated a written injunction order that contained explicit terms prohibiting defendants from entering into certain acts).

One may subjectively conclude that the trial court properly held Baird in contempt due to the fact that appellant was an educated businessman who most likely knew that his act of cashing in a $25,000 CD was not in accordance with a suit brought against him for stealing corporate funds. As stated in Carros, supra, however, even if the court leaves its order in the most general terms in order “to avoid usurping the judgment of ... [trained individuals in a business],” a court cannot conclude that the actions of the alleged contemnor and that of the court will be identical — namely that Baird will refrain from cashing the CD.

The trial court clearly abused its discretion by holding the defendant in contempt of an injunctive order which not only failed to recite the specific act which a defendant was prohibited from committing, Carros, supra, but which also was never reduced to a formal order — never signed by the trial judge and never entered on the docket. Additionally, Baird was neither present at nor represented at the injunction hearing so that the requirement of actual knowledge of the unwritten order was fulfilled. Fenstamaker, supra. Accordingly, Baird cannot have been proven to have committed contempt by a preponderance of the evidence, C.R. By Dunn, supra.

Order reversed.

HOFFMAN, J., files a Dissenting Statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. I would affirm on the basis of the Trial Court’s March 14,1995 Opinion.

      . While the trial court could not have held Baird in violation of an oral order because he was never in the presence of the court on the day of the injunction hearing, it is important to note the line of cases that uphold contempt citations based upon the violation of oral orders or directives. The majority of these cases involve an attorney as the contemnor.
      In his dissenting statement in In re Matter of Johnson, Justice Pomeroy recognized how an attorney, as officer of the court, holds a special, fundamental relationship with the court. Specifically he stated, "[i]t is axiomatic that lawyers are officers of the court admitted to office on taking the statutory oath ... to behave with all good fidelity to the court as well as to the client.” In re Matter of Johnson, 467 Pa. 552, 563, 359 A.2d 739, 745 (1976), citing In re Schofield, 362 Pa. 201, 204 n. 1, 66 A.2d 675, 677 n. 1 (1967). See also Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686 (1977) (holding that lay person cannot be held to have committed criminal contempt, when defendant's answer of prosecutor's question contained material which court had ruled inadmissible because a court “cannot expect a layman to interpret questions as if he were an attorney”); Appeal of Levine, 372 Pa. 612, 95 A.2d 222 (1953) (Jones, J., dissenting) (a contempt by an attorney is relatively more culpable than that oí a layman, so also is the punishment, as an attorney has violated his oath and this demands that a court more carefully scrutinize the injustice that was done).


source: Caselaw Access Project

author: TAMILIA, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    670 A.2d 678
    COMMONWEALTH of Pennsylvania v. Marco RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 27, 1995.
    Filed Jan. 18, 1996.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and OLSZEWSKI, JJ.
   TAMILIA, Judge:

Marco Rodriguez appeals from the November 1, 1994 judgment of sentence imposing a term of imprisonment of four (4) to eight (8) years plus a $5,000 fine. Following a jury trial, appellant was convicted of possession of a controlled substance

with intent to deliver. Briefly stated, the facts of this case are as follows.

On September 1, 1994, appellant was convicted on the aforementioned charges. On November 1, 1994, as appellant was about to be sentenced, he fled the courtroom and was not apprehended until July 14, 1995. Despite appellant’s absence, sentence was imposed. On November 30, 1994, a notice of appeal was filed on appellant’s behalf alleging that the November 1, 1994 sentence was unconstitutional because it was imposed in absentia.

The decision of whether or not to entertain the appeal of a fugitive once returned to custody lies within our discretionary authority. In Interest of J.J., 540 Pa. 274, 656 A.2d 1355 (1995); In Interest of J.J., 447 Pa.Super. 259, 668 A.2d 1176 (1995). Since appellant became a fugitive prior to the filing of this appeal and had been captured prior to this adjudication, there is no-connection between his fugitive status and the appellate process and we therefore decline to quash his appeal. However, because the sole issue raised by appellant on appeal is a direct result of his flight from the jurisdiction, we find the issue waived.

A leading principle pervading the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. Commonwealth v. Craddock, 370 Pa.Super. 139, 535 A.2d 1189 (1988), citing Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). However, the right to be present at a particular stage of litigation can be waived by one’s words or actions. Craddock, supra at 144, 535 A.2d at 1192; see also Illinois v. Allen, 397 U.S. 337, 342, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353, 358. (1970) (defendant may lose constitutional right to be present at trial where his conduct is “so disorderly ... that his trial cannot be carried on with him in the courtroom”); and Snyder v. Mass., 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678, 90 A.L.R. 575 (1934) (“No doubt the privilege [of being present at trial] may be'lost by consent or at times even by misconduct”). Instantly, it was appellant’s voluntary decision to flee the courtroom which necessitated his sentencing in absentia. Thus, by his actions, appellant has waived the right to challenge his sentence on the basis that it was imposed in his absence.

Judgment of sentence affirmed.

OLSZEWSKI, Judge,

concurring:

While I agree with the majority’s disposition of this appeal, I write separately to note my continuing disagreement with the analysis relating to quashal of fugitive appeals. See In the Interest of J.J., 447 Pa.Super. 259, 668 A.2d 1176 (Pa.Super.1995) (Olszewski, J., dissenting).


author: POPOVICH, Judge:

text:
    670 A.2d 680
    COMMONWEALTH of Pennsylvania, Appellee, v. Scott GIBSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 19, 1995.
    Filed Jan. 18, 1996.

      Shawn A. Bozarth, Harrisburg, for appellant.
    Deborah E. Curcillo, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   POPOVICH, Judge:

Scott Gibson appeals from a judgment of sentence entered in the Court of Common Pleas of Dauphin following his convictions for robbery and criminal conspiracy. Appellant now contends that the lower court erred in not allowing trial counsel to testify on appellant’s behalf and that the lower court erred in admitting a prior inconsistent statement of his co-defendant. We find that the lower court erred in refusing to allow appellant’s counsel to testify and remand for a new trial.

The incident in this matter involved the robbery, at knifepoint, of one Robert Ulmer on August 17, 1993. On that day, Mr. Ulmer was in his delivery truck preparing to fill a snack order for Allen’s Market in Susquehanna Township. A man entered the truck, forced Mr. Ulmer to the floor, brandished a knife and took $37 from Mr. Ulmer. A co-felon observed the street from the rear of the delivery truck while Mr. Ulmer was robbed. After the robbery, the two men then fled down an alley. Mr. Ulmer could not identify either man except that two black men carried out the crime. Erin Schorr, an eyewitness, observed the perpetrators in the delivery truck and saw them flee down the alley. However, she also was not able to identify these men positively.

A police investigation resulted in Susquehanna Township Police focusing on appellant and his co-defendant Arthur Brothers. Brothers confessed to the crime and identified appellant as his accomplice at a preliminary hearing for the case.

Appellant proceeded to a bench trial before the Honorable William Lipsitt. The Commonwealth called Arthur Brothers as a witness, and, after preliminary questioning, Brothers refused to answer questions pertaining to the robbery. The Commonwealth then introduced Brothers’ preliminary hearing testimony as substantive evidence.

After the Commonwealth rested, appellant recalled Brothers to the stand for the purpose of questioning him regarding an alleged statement in which Brothers denied that appellant was involved in the robbery. Once again, Brothers refused to cooperate. Specifically, appellant’s attorney, Mr. Bozarth had the following exchange with Brothers:

Q [ATTORNEY BOZARTH] Mr. Brothers, before today we have met two times. You met me on February 28th, 1994. Do you remember that?
A I don’t remember the dates. I have seen you a few times.
Q Do you remember being at District Justice Solomon’s?
A Yeah, Solomon’s.
Q Do you remember being there that day and there was no district attorney there?
MS. CURCILLO: Your Honor, I object to any statements.
THE COURT: Why?
MS. CURCILLO: He is trying to get testimony out of the preliminary hearing where there is no transcript — there is no sworn information concerning this information.
Q [ATTORNEY BOZARTH] Do you recall testifying at that prior proceeding?
A Yeah, I think I did.
Q Do you remember making a statement while under oath at that proceeding that Scott Gibson was not involved in this robbery or any other related—
Q Mr. Brothers, did you make a statement there at that hearing concerning Mr. Gibson’s involvement in this robbery?
THE WITNESS: I don’t remember.
MR. BOZARTH: You don’t remember. That is all I have, Your Honor.

(N.T. 10/14/94 at 28-29).

At this point Attorney Bozarth requested a sidebar and stated that he would like to take the stand and testify that Brothers made the above-mentioned exculpatory statement. The court denied this request.

Appellant was convicted of both charges and sentenced to three to six years of incarceration for the robbery conviction and six months to eighteen months of incarceration on the criminal conspiracy charge. Appellant was also required to pay the costs of prosecution on both charges. This timely appeal followed.

We first address appellant’s meritless claim that the lower court erred in admitting a prior inconsistent statement of co-defendant Arthur Brothers.

Our supreme court established the rule for admissibility of a non-party witness’ prior inconsistent statement in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), and Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). In Brady, the court held that, “otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Brady, 507 A.2d at 70. Lively involved a reexamination of the rule announced in Brady and resulted in our supreme court reaffirming the general principal established in Brady. Lively, 610 A.2d at 9-10. The court, in refining the Brady rule, held:

In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a.formal legal proceeding; or the statement has been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements.

Id. at 10 (citation omitted).

Here, the lower court allowed the Commonwealth to introduce Arthur Brothers’ preliminary hearing testimony after Brothers testified in a manner that conflicted with his preliminary hearing testimony. Brothers implicated appellant as a participant in the robbery of Mr. Ulmer at the preliminary hearing. When Brothers testified in this conflicting manner, his preliminary hearing testimony became admissible as substantive evidence. Lively, supra. Appellant’s counsel had the opportunity to cross-examine Brothers at the preliminary hearing which is a formal legal proceeding. Thus, the requirements of Brady/Lively are met, and appellant’s argument fails.

Appellant’s second allegation of error, which requires a remand for a new trial, is that the lower court erred in disallowing trial counsel to testify on appellant’s behalf.

PENNSYLVANIA RULE OF PROFESSIONAL CONDUCT 3.7(a) provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

The Comment to Rule 3.7 states:

Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
... [Paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor or the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of disqualification on the lawyer’s client.

PENNSYLVANIA RULE OF PROFESSIONAL CONDUCT, 3.7, Comment.

We had the opportunity to analyze a situation in which an attorney acts as both an advocate and a witness in Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988):

... [I]t is well settled that even an attorney acting as an advocate at trial is competent to testify on his client’s behalf.
* * * * * *
Ordinarily ... appearance of an attorney as both advocate and witness at trial is considered highly indecent and unprofessional conduct to be avoided by counsel and to be strongly discountenanced by colleagues and the courts.

Willis, 552 A.2d at 695, 696 (citations omitted) (emphasis added).

Here, the trial judge did not allow Attorney Bozarth to testify because he believed it would have been improper for trial counsel to act as both a witness and an advocate. Attorney Bozarth sought to testify that Brothers made a statement exculpating appellant at a prior proceeding. Rule 3.7(a) and Willis establish that an attorney may act as witness even though this practice is not highly condoned. While Attorney Bozarth was prepared to be questioned by another attorney, Attorney Rosen, the court summarily refused to permit him to testify. Had the court been concerned about counsel’s appearance as a witness and advocate, it could have directed Bozarth to withdraw. Further, the risk of Attorney Bozarth’s testimony being given undue weight by the factfinder was also minimized because this was a bench trial. Accordingly, the trial court erred in not allowing Attorney Bozarth to testify, and we now must determine if this error was harmless.

The Commonwealth has the burden of establishing that an error is harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). “[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict.” Id. at 164. An error is harmless where:

... (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992) (citations omitted).

In the case sub judice, we find that this error was not harmless. The prejudice appellant suffered was not de minimis because Attorney Bozarth’s testimony would have been valuable impeachment testimony for appellant, given the dearth of evidence of appellant’s involvement in the robbery except for Brothers’ preliminary hearing testimony. Counsel’s testimony would have directly contradicted Brothers’ preliminary hearing testimony. Neither the victim nor Erin Schorr could positively identify appellant as one of the felons, and these individuals were at the scene. Appellant was tied to the crime almost entirely on the basis of Brothers’ preliminary hearing testimony. In light of the foregoing, the trial court’s error was not harmless, and appellant is entitled to a new trial. Foy, supra. We note that upon remand if Attorney Bozarth desires to testify, he must withdraw from the case.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3701(a)(1)(i).

      . 18 Pa.C.S.A. § 903.

      . It is unclear from the record whether this statement was made while Brothers was under oath. Attorney Bozarth, while questioning Brothers, indicated that Brothers' statement was made while under oath. However, there was no sworn testimony of the statement introduced. Also, Attorney Bozarth referred to the statement being made before a district justice other than the district justice who presided over this case.

      . These statements were not part of the official record of that proceeding and were not part of the official record transmitted to us for review.


author: WIEAND, Judge:

text:
    670 A.2d 684
    Robert J. TRIFFIN, Appellant v. Stacey Anne DILLABOUGH, and American Express Travel Related Services Company, Inc., Appellees. Robert TRIFFIN, Appellant v. Robert LYNN, and American Express Travel Related Services Company, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued June 20, 1995.
    Filed Jan. 18, 1996.

      Robert J. Triffin, appellant, pro se.
    Steven Sklar, Philadelphia, for appellees.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The issue in this appeal is whether blank money orders, which were stolen prior to being sold and subsequently completed without authorization, are negotiable instruments, and, if so, whether a holder in due course has a right to payment on the instruments despite a lack of initial consideration and the absence of delivery. Robert J. Triffin, the plaintiff/appellant herein, instituted an action to obtain payment on the stolen money orders after payment had been refused by defendant, American Express Travel Related Services Co., Inc. (American Express). Following a non-jury trial, the trial court determined that the money orders were not negotiable instruments under the Uniform Commercial Code — Commercial Paper, 13 Pa.C.S. § 3101 et seq. (1979), and entered judgment in favor of American Express. Post-trial motions were denied, and judgment was entered on the verdict. This appeal followed. After careful review, we reverse and enter judgment in favor of plaintiff/appellant.

On December 11, 1990, two American Express money orders in the amounts of $550 and $650 respectively, which were payable to Stacey Anne Dillabough, were presented to Chuckie Enterprise, Inc. (Chuckie’s), a cash checking operation in Philadelphia. On February 25, 1991, a third American Express money order in the amount of $200, payable to Robert Lynn, was presented. The money orders were duly endorsed, and photo identifications were provided by the payees; whereupon, Chuckie’s paid the face amounts minus a two percent fee.

The two Dillabough money orders had been stolen from the premises of an American Express agent; and, in a separate incident, the Lynn money order had been stolen during shipment to an authorized agent. When stolen, the money orders were signed, but were blank as to payee, date, sender and amount. When presented to Chuckie’s, however, the money orders had been completed. Prior to being stolen, the money orders bore the pre-printed signature of the Chairman of American Express. The money orders were passed through the usual bank collection channels and were presented for payment at United Bank of Grand Junction, Colorado. American Express, having noted on its “fraud log” that the money orders were stolen, returned the money orders marked “Reported Lost or Stolen — Do Not Redeposit.” American Express refused to pay the amounts of the money orders.

Triffin, a commercial discounter, purchased the dishonored money orders for cash from Chuckie’s and took an assignment of all Chuckie’s rights, claims and interests in the money orders. On July 16, 1992, Triffin filed a complaint against Dillabough and American Express, and, on August 20, 1992, he filed a second complaint against Lynn and American Express. In these actions, Triffin demanded payment of the stolen money orders. The two cases were consolidated, and Triffin entered judgment by default against Dillabough and Lynn without prejudice to his claims against American Express. On September 14, 1994, the case proceeded to trial, after which the trial court entered a verdict in favor of American Express.

In finding in favor of American Express, the trial court held that the money orders in question could not be construed as “negotiable instruments” because American Express never had made any promise or order to pay a sum certain. See: 13 Pa.C.S. § 3104(a)(2) (1979) (requisites to negotiability). Furthermore, the trial court held, American Express had no liability as drawer on the money orders because it had never issued the money orders. See: 13 Pa.C.S. § 3413 (1979) (contract of drawer). On appeal, Triffin asserts that, under Division 3 of the Pennsylvania Uniform Commercial Code, the money orders must be considered to be negotiable instruments, and, as such, American Express is precluded from disclaiming liability to a holder in due course merely because the money orders were completed without authority by unknown persons.

“The role of an appellate court in reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error-in the application of law; findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion.” Olmo v. Matos, 439 Pa.Super. 1, 5-6, 653 A.2d 1, 3 (1994).

In the instant case, the threshold issue to be decided is whether the stolen money orders were negotiable instruments. The parties agree that if the money orders were not negotiable instruments, then Triffin has no basis for a cause of action against American Express.

For purposes of determining the negotiability of a given instrument, we must look to 13 Pa.C.S. § 3104, which, at all times relevant to the instant case, provided as follows:

§ 3104. Form of negotiable instruments; “draft”; “check”; “certificate of deposit”; “note”
(a) Requisites to negotiability. — Any writing to be a negotiable instrument within this division must:
(1) be signed by the maker or drawer;
(2) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this division;
(3) be payable on demand or at a definite time; and
(4) be payable to order or to bearer.
(b) Types of negotiable instruments. — A writing which complies with the requirements of this section is:
(1) A “draft” (“bill of exchange”) if it is an order.
(2) A “check” if it is a draft drawn on a bank and payable on demand.
(3) A “certificate of deposit” if it is an acknowledgment by a bank of receipt of money with an engagement to repay it.
(4) A “note” if it is a promise other than a certificate of deposit.
(c) Applicability of terms to nonnegotiable instruments. — As used in other divisions of this title, and as the context may require, the terms “draft,” “check,” “certificate of deposit” and “note” may refer to instruments which are not negotiable within this division as well as to instruments which are so negotiable.

13 Pa.C.S. § 3104 (1979).

The Comment to section 3104 of the Code provides that “[a]ny writing which meets the requirements of subsection ([a]) and is not excluded under Section 3-103 is a negotiable instrument, and all sections of this Article apply to it, even though it may contain additional language beyond that contemplated by this section.” 13 Pa.C.S. § 3104, Comment 4 (1979). Our research has disclosed no cases decided by Pennsylvania courts which discuss the negotiability of money orders of the type at issue in this case. However, in Hong Kong Importers, Inc. v. American Express Co., 301 So.2d 707 (La.App.1974), the Louisiana Court of Appeal considered whether money orders issued by American Express were negotiable instruments and reasoned as follows:

We find no definition of “money order” in our Negotiable Instruments Law, LSA-R.S. 7:1-7:195. The term, “money order,” may encompass non-negotiable as well as negotiable instruments. It may be issued by a governmental agency, a bank, or a private person or entity authorized to issue same. The essential characteristic common to all these various types of money orders is that it is purchased for the purpose of paying a debt or to transmit funds upon the credit of the issuer of the money order. At the time of its purchase, the purchaser pays to the issuer the principal amount of the money order and usually also pays a fee to the issuer for the issuance or the transmission of the principal amount represented by it....
The instruments before us have the characteristics of a check and a note. They also have similar characteristics of a bank money order and a personal money order. Whatever designation is given to the instruments they are negotiable instruments and governed by the Negotiable Instruments Law. LSA-R.S. 7:1-7:195.

Hong Kong Importers, Inc. v. American Express Co., supra at 709-710 (footnotes omitted). Similarly, the Colorado Court of Appeals has observed, by way of dictum, that “a money order issued by an express company may take a form akin to a check or similar to a promissory note, depending on its precise contents. For example, those issued by the American Express Company are said to be the equivalents of promissory notes.” Computer Works, Inc. v. CNA Insurance Co., 757 P.2d 167, 168 (Colo.App.1988), citing 6 J. Reitman, Banking Law, § 112.02 (1987).

Prior to being stolen the American Express money orders read: “AMERICAN EXPRESS MONEY ORDER ... CHASE SAVINGS BANK ... DATE (blank). PAY THE SUM OF (blank), NOT GOOD OVER $1,000, TO THE ORDER OF (blank). Louis V. Gerstner, Chairman. SENDER’S NAME AND ADDRESS (blank). Issued by American Express Travel Related Services Company, Inc., Englewood, Colorado. Payable at United Bank of Grand Junction, Downtown, Grand Junction, Colorado.” The two Dillabough instruments were in this form. The third Lynn instrument was identical, except it did not bear an authorized agent’s name, e.g., Chase Savings Bank, and was not good for over $200.

The first requisite of negotiability is that the instrument “be signed by the maker or drawer.” 13 Pa.C.S. § 3104(a)(1) (1979). No person is liable on an instrument unless his signature appears thereon. 13 Pa.C.S. § 3401 (1979). The Code defines “signed” as meaning “any symbol executed or adopted by a party with present intention to authenticate a writing.” 13 Pa.C.S. § 1201. A “symbol” can be considered a signature only if the signing party intended it to serve as such. See: Federal Deposit Ins. Corp. v. Victory Lanes, 158 B.R. 617, 623 (E.D.Va.1993). “In deciding whether a party has affixed its name to an instrument with a ‘present intention’ to authenticate the instrument, courts must use common sense and commercial experience.” First Nat. Bank in Alamosa v. Ford Motor Credit Co., 748 F.Supp. 1464, 1468 (D.Colo.1990); Mel-Tex Valve, Inc. v. Rio Supply Co., Inc., 710 S.W.2d 184, 186 (TexApp.—Houston [1st Dist.] 1986). See also: 13 Pa.C.S. § 1201, Comment 39 (1979). “Authentication may be printed, stamped or written; it may be by initials or by thumbprint.” Id.; 1976 Op.Pa.Atty.Gen. No. 31. “A signature may be handwritten, typed, printed or made in any manner.” Interfirst Bank Carrollton v. Northpark Nat. Bank of Dallas, 671 S.W.2d 100, 104 (Tex.App. 8 Dist.1984). See also: Carna v. Bessemer Cement Co., 558 F.Supp. 706, 708-709 (W.D.Pa.1983); Continental Coffee v. Banque Lavoro S.A., 852 F.Supp. 1235, 1240 n. 8 (S.D.N.Y.1994); Plemens v. Didde-Glaser, Inc., 244 Md. 556, 224 A.2d 464, 467-468 (1966); Evans v. Moore, 131 Ga.App. 169, 205 S.E.2d 507, 508 (1974). When the effectiveness of a signature is put in issue, the signature is presumed to be genuine or authorized. 13 Pa.C.S. § 3307 (1979).

The stolen money orders in the instant case each bore the pre-printed signature of Louis Gerstner, Chairman of American Express. There was nothing about the signature’s printed form which would defeat the instrument’s negotiability. Moreover, the location of Gerstner’s signature, i.e., at the far right of each instrument, below the place intended for completion of the date, amount, and payee’s name, indicated an intent that the signature operate as the signature of “the maker or drawer.” “ ‘[B]y long established practice judicially noticed or otherwise established a signature in the lower right hand corner of an instrument indicates an intent to sign as the maker of a note or the drawer of a draft.’ ” First Nat. Bank in Alamosa v. Ford Motor Credit Co., supra 748 F.Supp. at 1469, quoting U.C.C. § 3-402 official comment. The only additional mark which American Express intended to place on the instruments was a checkwriter’s embossment of a dollar amount that was equal to the amount of cash collected by its authorized agent from the purchaser, minus a small fee. No counter-signature was required. Accordingly, it seems clear that American Express affixed the pre-printed signature of Louis Gerstner on the instruments with the present intention to authenticate the instruments; and therefore, we conclude that the instruments were “signed by the maker or drawer.”

The remaining requisites of negotiability are not contested, but with one exception. American Express contends that the instruments do not contain “an unconditional promise or order to pay.” 13 Pa.C.S. § 3104(a)(2) (1979). Under the Code, a promise is an “undertaking to pay,” and an order is a “direction to pay.” 13 Pa.C.S. § 3102(a) (1979). American Express contends that it did not undertake to make payment or direct payment by another on its printed money orders because an authorized representative of American Express did not perform the affirmative act of issuing the stolen money orders. The act required for negotiability, it is contended, occurs after an authorized agent, in consideration of the money paid by the purchaser to the agent, embosses a dollar amount on the face of the money order. After embossing the instrument, American Express argues, the agent “issues” a negotiable money order to the purchaser.

The act of being issued or first delivered is not required for a writing to become a negotiable instrument. See: 13 Pa.C.S. § 3104 (1979). The American Express money orders directed a holder to “pay the sum of (blank) ... to the order of (blank).” Nothing more was required to establish “an unconditional promise or order to pay.” Accordingly, we hold that the American Express money orders meet all the requisites of negotiability and, thus, are negotiable instruments.

Regardless of whether the money orders constitute negotiable instruments, American Express argues that it is not liable on the instruments. American Express denies that it is the drawer and asserts it has no liability on the instruments because it never issued the money orders, never intended to draw the instruments, never engaged to pay a holder, and never accepted the money orders. Appellant, on the other hand, contends that American Express is liable on the instruments and that each of the defenses raised must fail because appellant stands in the shoes of a holder in due course.

A “drawer” is the person who causes a draft to be written and signs it. See: Black’s Law Dictionary 444 (5th ed. 1979) (defining “draw” and “drawer”). “The drawer engages that upon dishonor of the draft and any necessary notice of dishon- or or protest he will pay the amount of the draft to the holder.... ” 13 Pa.C.S. § 3413(b) (1979). Instantly, American Express printed the money orders with the intent to sell them to customers who could then freely transfer the instruments in the marketplace. Toward this end it affixed the signature of its Chairman to the money orders. In all respects, the money orders appeared to be negotiable instruments and were devoid of any indication that they were not negotiable. Accordingly, we are satisfied that American Express is the drawer and that it drew the money orders when it printed them.

Even if it be deemed the drawer of the money orders, American Express contends that it is not liable to appellant because of the legal effect of a legend appearing on the reverse side of the money orders. The legend, American Express argues, functions as the tenor of American Express’s engagement to pay and relegates the money orders to “drawn without recourse” status. See: 13 Pa.C.S. § 3413(b) (1979) (a drawer may disclaim its liability by drawing without recourse). Appellant, on the other hand, asserts that a drawer’s preprinted liability disclaimer for its stolen negotiable instruments is not enforceable against a holder in due course.

The legend on American Express’s money orders provides as follows:

IMPORTANT
DO NOT CASH FOR STRANGERS
THIS MONEY ORDER WILL NOT BE PAID IF IT HAS BEEN ALTERED OR STOLEN OR IF AN ENDORSEMENT IS MISSING OR FORGED. BE SURE YOU HAVE EFFECTIVE RECOURSE AGAINST YOUR CUSTOMER.

PAYEE’S ENDORSEMENT

American Express argues that the legend on the back of its money order is an integral part of the contract and is an enforceable limitation on its promise to pay the holder. In support of this contention, it cites Citizens & Southern Bank of Atlanta v. Daniel, 107 Ga.App. 398, 130 S.E.2d 231 (1963), where the Georgia Court of Appeals determined that the tenor of the contract included a legend appearing on the instrument’s face which stated “Void if not cashed within 60 days.” The Georgia Court held that such a legend was enforceable. Id., 130 S.E.2d at 233. However, a Louisiana appellate court characterized a legend substantially similar to the language and placement of the one at issue in the instant case to be “simply a warning to one who cashes the money order that he should have recourse against a payee-endorser.... ” Hong Kong Importers, Inc. v. American Express, supra 301 So.2d at 710.

We are not persuaded that the legend on the reverse side of American Express’s money order constitutes the tenor of the instrument or that it renders the money order without recourse. The legend, rather, is a warning to one who cashes the money order. Hong Kong Importers, Inc. v. American Express, supra. The instruments in this case were cashed according to their tenor, which was that they were “not good for over $1,000” on the Dillabough money orders and “not good for over $200” on the Lynn money order.

When stolen from American Express, the three money orders were incomplete in several respects. Completion was to be accomplished upon sale to a customer. Instead, completion was accomplished by persons unknown prior to sale. It is undisputed that the completion was unauthorized. When completion is unauthorized, “the rules as to material alteration apply (section 3407), even though the paper was not delivered by the maker or drawer....” 13 Pa.C.S. § 3115(b) (1979). Under section 3407, a “holder in due course may in all cases enforce the instrument according to its original tenor, and when an incomplete instrument has been completed, he may enforce it as completed.” 13 Pa.C.S. § 3407(c) (1979).

According to sections 3115 and 3407 of the Code, the three stolen American Express money orders can be enforced as completed, if appellant has the rights of a holder in due course. This result is intended by the Code even though the money orders were stolen and were completed after the theft. See: 13 Pa.C.S. § 3407, Comment 4 (1979). See also: Sendery v. American Express Co., 16 U.C.C. Rep. Serv. 753, 1975 WL 22846 (1975) (American Express traveler’s checks issued in blank and stolen in transit were payable in the hands of a holder in due course.) “[U]nder [Sections 3305 and 3407] neither non-delivery nor unauthorized completion is a defense against a holder in due course____” 13 Pa.C.S. § 3115, Comment 5 (1979). “Generally stated, and most simply, if plaintiff is a holder in due course, the defense of theft must fail.” Dubin v. Hudson County Probation Department, 267 N.J.Super. 202, 630 A.2d 1207, 1210 (N.J.Super.L.1993).

“After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.” 13 Pa.C.S. § 3307(c) (1979). A holder in due course is a “holder who takes the instrument: (1) for value; (2) in good faith; and (3) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” 13 Pa.C.S. § 3302(a) (1979). Good faith is “[h]onesty in fact in the conduct or transaction concerned.” 13 Pa.C.S. § 1201. See: Norman v. World Wide Dist., Inc., 202 Pa.Super. 53, 57, 195 A.2d 115, 117 (1963).

It is not disputed that if Chuckie’s, as appellant’s assignor, was a holder in due course, then appellant also stands in the shoes of a holder in due course. The trial court made no specific determination that Chuckie’s was a holder in due course, but, after hearing the evidence, the court did express its belief that Chuckie’s had acted in good faith when it paid value for the money orders. Nevertheless, American Express argues that we should remand the case for a decision by the trial judge, as finder of fact, to determine whether Chuckie’s achieved holder in due course status. American Express asserts that the legend printed on the reverse side of each instrument, together with the circumstances surrounding the transactions, created a heightened duty of inquiry upon Chuckie’s for the purpose of establishing “good faith” and served as notice of voidability sufficient to present notice of a defense.

Under normal circumstances; good faith for purposes of determining whether a party is a holder in due course. is a question of fact for the fact finder. However, where the evidence is undisputed and conclusive, good faith can be determined as a matter of law. Manufacturers and Traders Trust Co. v. Murphy, 369 F.Supp. 11, 13 (W.D.Pa.1974), aff'd, 517 F.2d 1398 (3rd Cir.1975). Instantly, the record permits a determination as a matter of law.

With respect to holder in due course status, the Superior Court has observed:

“[R]unning through all the authorities dealing with holders in due course we find the principle, not always stated, perhaps, that he who seeks the protection given one in that position must have dealt fairly and honestly in acquiring the instrument in controversy and in regard to the rights of all prior parties; this is the kind of good faith which the law demands, and the principle is closely analogous to the equitable doctrine of clean hands.” Fehr v. Campbell, 288 Pa. 549, 558, 137 A. 113, 116 (1927).
He who seeks protection as a holder in due course must have dealt fairly and honestly in acquiring the instrument as to the rights of prior parties, and where circumstances are such as to justify the conclusion that the failure to make inquiry arose from a suspicion that inquiry would disclose a vice or defect in the title, the person is not a holder in due course. Stroudsburg Security Trust Co. Case, 145 Pa.Superior Ct. 44, 48, 49, 20 A.2d 890, 892 (1941); Fehr v. Campbell, supra, [288 Pa. at] p. 555 [137 A. 113].

Norman v. World Wide Dist, Inc., supra, 202 Pa.Super. at 58, 195 A.2d at 117-118. See also: Hanley v. Epstein, 107 Pa.Super. 507, 164 A. 122 (1933). “[M]ere suspicion or knowledge of facts sufficient to put a prudent man on inquiry without actual knowledge does not prevent a transferee from becoming a bona fide holder, unless the failure to inquire amounts to bad faith. Suspicious circumstances are not enough unless bad faith reasonably can be inferred from them.” In re Stroudsburg Security Trust Co., 145 Pa.Super. 44, 48, 20 A.2d 890, 892 (1941). See also: Fehr v. Campbell, 288 Pa. 549, 558, 137 A. 113, 116 (1927); Second National Bank of Clarion v. Morgan, 165 Pa. 199, 30 A. 957 (1895). See also: Bankers Trust Co. of Western N.Y. v. Crawford, 781 F.2d 39, 45 (3rd Cir.1986).

The evidence showed that Charles Giunta, president of Chuckie’s Enterprise, a check cashing business operated by Giunta since 1989, followed his customary procedures during the underlying transactions. He required and obtained photo identification from Dillabough and Lynn. He also recognized these individuals as previous customers. The instruments were complete and regular on their face when presented; and Chuckie’s paid the face amount of the money orders, minus its regular fee. The surname of the sender on the Dillabough instruments was not decipherable, and the sender’s address was missing from the Lynn instrument. Giunta testified that he was familiar with money orders and he had no reason to believe the money orders in question would not be paid when presented. The evidence also showed that Giunta cashed the money orders presented by Dillabough and Lynn within thirty days of the completed date on the money orders.

American Express disputes that Chuckie’s attained holder in due course status because, under the circumstances,' Chuckie’s failed to ascertain information about the senders on the instruments and should have contacted American Express to determine if the money orders were properly payable before cashing them.

Contrary to American Express’s position, we hold that the circumstances surrounding the subject transactions were not of a sufficiently suspicious nature as to require heightened inquiry by Chuckie’s in order to establish the “good faith” element necessary for holder in due course status. Chuckie’s required Dillabough and Lynn to produce proper photo identification. Chuckie’s also recognized these customers from prior transactions. The mere illegibility of one sender’s surname and the absence of the other’s address did not suggest that lack of further inquiry arose from a suspicion that inquiry would disclose a vice or defect in the title.

American Express also argues that because the instruments state “[t]his money order will not be paid if it has been altered or stolen,” Chuckie’s should have inquired of American Express as to whether the money orders were properly payable. Given the general rule in Pennsylvania that there is no affirmative duty to inquire, we find no reason to hold that the legend established such a duty, nor will we find that the mere presence of the legend would raise suspicion as to a vice or defect in the title. Therefore, we hold that Chuckie’s was a holder in due course of the three American Express money orders which were stolen from American Express and completed without authorization by persons unknown. Appellant, by assignment, holds the same rights in the instruments as was previously held by Chuckie’s.

Finally, we consider the failure of consideration defense raised by American Express. It is undisputed that no consideration was paid to American Express for its liability on the money orders. Under the Code, however, “[w]ant or failure of consideration is a defense as against any person not having the rights of a holder in due course.... ” 13 Pa.C.S. § 3408 (1979). Since appellant does have the rights of a holder in due course, the failure of consideration defense must fail.

By way of summary, we hold that the money orders sued upon are negotiable instruments. We further hold that appellant has the rights of a holder in due course and is entitled to payment on the instruments. Our conclusion is consistent with the purpose of the Uniform Commercial Code “to meet the contemporary needs of a fast moving commercial society,” Arcuri v. Weiss, 198 Pa.Super. 506, 510, 184 A.2d 24, 26 (1962), and to “enhance the marketability of negotiable instruments [allowing] bankers, brokers, and the general public to trade in confidence.” Manor Bldg. Corp. v. Manor Complex Assoc. Ltd., 435 Pa.Super. 246, 253, 645 A.2d 843, 846 (1994) (en banc). Furthermore, while American Express received no consideration for its liability on the instruments, our result is consistent with the established policy in Pennsylvania that “as between two innocent parties ... liability should be borne by the one ... who made the loss possible.” Weiner v. The Pennsylvania Co. for Insurances on Lives and Granting Annuities, 160 Pa.Super. 320, 325, 51 A.2d 385, 388 (1947). Accord: Garden Check Cashing Serv., Inc. v. Chase Manhattan Bank, 46 Misc.2d 163, 258 N.Y.S.2d 918 (1965).

The judgment in favor of American Express is reversed and is now entered in favor of appellant.

CAVANAUGH, J., did not participate in the consideration or decision of this appeal.

      . "Issue” is defined by the UCC as "[t]he first delivery of an instrument to a holder or a remitter.” 13 Pa.C.S. § 3102(a) (1979). "Holder” is a "person who is in possession of ... an instrument ... drawn, issued or indorsed to him or to his order or to bearer or in blank.” 13 Pa.C.S. § 1201 (1979), as amended in 1982.

      . We observe that Pennsylvania's Commercial Code was substantially amended on July 9, 1992, effective one year from the date of amendment. Because all transactions at issue in this appeal were completed prior to the effective date of the 1992 amendments, those amendments have no application in the instant case. As such, all references to the Code contained in this Opinion are to the “Uniform Commercial Code,” Act of November 1, 1979, P.L. 255, No. 86, § 1.

      . The sender on the Dillabough instruments was a David W. (last name not decipherable) of 436 E. Allegheny Ave.; the sender on the Lynn instrument was Michael C. Pepe with no address listed.


author: CIRILLO, Judge:

text:
    670 A.2d 694
    Gary D. KOOKER and Rebecca S. Kooker, His Wife v. Thomas W. CHIDO, Jr. and Thomas W. Chido, III, Individually and t/d/b/a Chido’s Sixty Minute Cleaners and Building Systems, Inc., Jointly and/or Severally. Appeal of BUILDING SYSTEMS, INC., Jointly and/or Severally.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed Jan. 19, 1996.

      James R. Fryling, Erie, for appellant.
    Howard A. Hain, Erie, for Kooker, appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Erie County denying Building Systems, Inc.’s petition to open default judgment. We affirm.

Appellees Gary and Rebecca Kooker (Kookers) brought a negligence suit against Appellant Building Systems, Inc. (Building Systems). Over one month after serving the complaint, the Kookers filed a praecipe for entry of a default judgment against Building Systems for failure to file an answer. This same day, Building Systems filed an answer and new matter, in addition to filing a petition to open the default judgment. The Kookers then filed preliminary objections to Building Systems’ answer and new matter, as well as a brief in opposition to Building Systems’ petition to open the default judgment.

On April 20, 1995, after hearing arguments by counsel, the Honorable Michael T. Joyce entered an order and opinion denying Building Systems’ petition to open default judgment. On May 1,1995, Building Systems filed a petition for reconsideration which was also denied by the trial court. This timely notice of appeal followed. Building Systems raises the following issues for our review:

Did' the trial court commit an error of law in finding, without a hearing, that a written extension of time within which to file a pleading was granted to the defendant, Building Systems, Inc.?
Did the trial court abuse its discretion in refusing to open a judgment by default when the defendant established a timely filing of the petition, the existence of a meritorious defense and a reasonable excuse for delay?

Appellant properly appeals from an order refusing to open a judgment. See Pa.R.A.P. 311(a)(1). A petition to open a default judgment is addressed to the equitable powers of the court and will not be overturned absent an error of law or clear, manifest abuse of discretion. Central Penn National Bank v. Williams, 362 Pa.Super. 229, 523 A.2d 1166 (1987). Ordinarily three factors should be considered and must coalesce before default judgment can be opened: a petition to open must be promptly filed; the failure to file a timely answer must be excused; and the party seeking to open judgment must show a meritorious defense. U.S. Dep’t. of Housing v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986) (emphasis added); Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983) (citations omitted).

Pennsylvania Rule of Civil Procedure 237.1 states, in part:

(a)(2) No judgment ... by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered
(ii) in the case of a judgment by default, after the failure to plead to a complaint and at least ten days prior to the date of the filing of the praecipe to the party against whom judgment is to be entered and to his attorney of record, if any.

An exception to this ten-day notice requirement, however, exists. Parties may agree to extend the time to plead prior to the giving of the ten-day notice, and the action may proceed with the filing of the pleading without using the procedure enumerated in Pa.R.C.P. 237.1. See Pa.R.C.P. 237.1. When an “exchange of letters” manifesting a meeting of the minds includes an unambiguous statement of a definite time period for the extension, a separate ten-day notice form, set out in Rule 237.1, would not be required before a default judgment was permitted under the rule. Johnson v. SEPTA 524 Pa. 209, 570 A.2d 71 (1990). Accordingly, if the agreement specifies a time within which action must be taken, and such action is not taken, the default judgment may then be entered. Id.

Building Systems asserts that it was given neither the requisite notice of intent to enter a default judgment nor the courtesy of a properly executed extension agreement, pursuant to Pa.R.C.P. 237. Specifically, Building Systems claims that the alleged letter sent by plaintiffs’ counsel was merely a proposal that never stated a specific extended date by which Building Systems was required to file its answer. Because Building Systems was deprived of this requisite notice, it contends that the court should have excused its failure to timely plead and, in not so excusing Building Systems, the court erred in entering a default judgment.

A review of the record reveals a reply letter dated November 29, 1994, sent by plaintiffs counsel, Howard A. Hain, Esquire to Building Systems’ counsel, Michael J. Koehler, Esquire. The content of the letter refers to an extension for filing a response to the plaintiffs complaint in the instant case. Mr. Hain clearly and unequivocally states his acceptance of appellate counsel’s request for additional filing time, evidenced in the following language:

Thus, I [Mr. Hain] will agree to an extension of time of an additional three weeks beyond November 29 for the filing of an answer to the complaint. This would provide a deadline as of the close of Court House business on December 20, 1994.

Building Systems did not respond to plaintiffs’ complaint, ultimately, until December 28, 1994. This was clearly beyond both the original time limit under the rule and the extended time limit granted by the above letter.

The correspondence sent by counsel had sufficiently clear terms. Counsel for Building Systems requested a “reasonable” extension of time and opposing counsel acquiesced to this request by granting a more than reasonable three-week extension. This represented a meeting of the minds for purposes of an agreement under Rule 237. Miller Block Co. v. U.S. National Bank, 389 Pa.Super. 461, 567 A.2d 695 (1989) (when letters were in writing, set a specific date and the parties agreed to the extension, writings conformed to Rule 237); cf. Johnson, supra, (when one party requested an open-ended extension and the other party replied by granting a thirty-day extension, no meeting of the minds occurred for purposes of rule 237.1).

In addition, opposing counsel: stated, without ambiguity, that the extension was to run from the original filing deadline of November 29th; counsel clearly identified the time period for the extension and also provided the exact date upon which this deadline would expire—December 20. The exchange of these letters meets the informal requirements delineating the proper form for correspondence for an extension under Pa.R.C.P. 237.1. Cf. Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (1991) (where letter referring to 60-day extension for filing of appearance and answer was insufficiently specific to effect waiver of Rule 237.1 notice requirement, failure to file responsive pleading was reasonably excused for purposes of determining whether failure to open default judgment was abuse of discretion by trial court); Johnson, supra, (even when exchange of letters between parties identified that a 30-day extension was appropriate, the phrase “30-day extension” in plaintiffs letter was too indefinite as to its application because of the uncertainty as to when the 30 days was to begin running).

Because we have determined that Building Systems was granted a properly written extension to plead its answer, and because Building Systems failed to meet this extended deadline, the court did not err in granting a default judgment to the Kookers. Johnson, supra. With regard to the second issue on appeal, Building Systems failed to establish that a reasonable excuse for failing to plead existed in the instant case. Accordingly, the trial court did not commit either an error of law or an abuse of discretion in refusing to open the default judgment. Dickerson, supra; Central Penn, supra.

Order affirmed.

      . Building Systems asserts, in its “Statement of Questions Involved,” that it was never given the opportunity of a full hearing with regard to the determination of whether a written extension agreement ever existed between counsel. However, counsel fails to address the merits of this claim and presents this court with no case law or authority on point with this issue. Because we have held that an issue not supported by authority will be waived, see Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-02, 551 A.2d 1112, 1114 (1988), we will not address this claim.
      Even if we were to address the merits of whether the court should have provided a full hearing on this issue, appellant's issue would fail. The record indicates that the trial court heard counsel’s arguments and reviewed the parties’ briefs before coming to its decision with regard to the existence of a written extension to file agreement between the parties. Such judicial review was sufficient to provide Building Systems the time for the court to hear its contentions.

      . This court notes that prior to the entry of the default judgment, Building Systems was represented by counsel other than appellate counsel. Michael J. Koehler, Esquire, was appointed as counsel for Building Systems at the time the petition to open the default judgment was filed. This court subsequently granted Mr. Koehler leave to withdraw his appearance on behalf of Building Systems. New counsel has properly entered his appearance for Building Systems on this appeal.

      . Specifically, Building Systems’ counsel sent a letter to opposing counsel advising that it had received the plaintiffs’ complaint, and to "respectfully request a reasonable extension of time in which to file a responsive pleading.” The conclusion. of this letter asked plaintiffs’ counsel to "inform me if you would consent to such a request.”