author: WIEAND, Judge: BROSKY, Judge,

text:
    533 A.2d 134
    COMMONWEALTH of Pennsylvania, Appellee, v. Roy E. KRUM, Appellant.
    Superior Court of Pennsylvania.
    Argued April 4, 1986.
    Filed Nov. 2, 1987.

      William K. Sayer, Assistant Public Defender, Stroudsburg, for appellant.
    E. David Christine, Assistant District Attorney, East Stroudsburg, for Com., appellee.

      Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   WIEAND, Judge:

Roy Krum entered pleas of guilty to two charges of burglary. Although these were his first adult offenses, Krum had a lengthy juvenile record. The sentencing court imposed concurrent sentences of not less than four years nor more than eight years, which it refused to modify in response to a petition for reconsideration. On direct appeal, Krum argues (1) that the sentencing guidelines are “in violation of Pennsylvania case law and the Sentencing Code in that they fail to distinguish between the effect of a prior adjudication as a fifteen year old juvenile and a prior conviction as an adult”; and (2) that the sentences constituted an abuse of discretion because Krum did not have a prior adult record.

An examination of the record in the trial court discloses that only the second issue has been preserved for appellate review. The first issue was not raised in the trial court at the sentencing hearing or in the motion to reconsider and modify the sentence. It was raised for the first time after an appeal had been filed in this Court. Appellant’s motion for reconsideration of sentence contained as reason therefor only the following:

Defendant requests your Honorable Court to reconsider the sentence in light of the fact that the Court failed to give sufficient consideration to the defendant’s young age at the time these incidents occurred and to the defendant’s status as a young juvenile at the time of his prior criminal activities as a juvenile. The Court was also not aware of the extent to which the defendant has cooperated with the authorities since his arrest on these charges.

Par. 3, Motion to Reconsider and Modify Sentence.

It is well established that sentencing issues which have not been raised in a motion to modify sentence are waived. See: Commonwealth v. Duffy, 341 Pa.Super. 217, 221, 491 A.2d 230, 231 (1985); Commonwealth v. Cottman, 327 Pa.Super. 453, 461, 476 A.2d 40, 44 (1984); Commonwealth v. Kuhn, 327 Pa.Super. 72, 83, 475 A.2d 103, 108 (1984). The sentencing guidelines issue which appellant has sought to raise in the instant appeal, even if meritorious, would not render the sentence illegal in the sense that it could not be waived. Compare: Commonwealth v. Reardon, 297 Pa.Super. 193, 443 A.2d 792 (1981). The sentence imposed upon appellant was authorized by the legislature, was within statutory limits, and was not an illegal sentence. The sentence recommended by the guidelines,, as the opinion of the sentencing court makes clear, was only one of several factors considered in formulating an appropriate sentence to be imposed upon Roy Krum. If a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion, but the sentence imposed is not rendered illegal. Otherwise, every erroneous consideration by a sentencing court will render the sentence illegal in a manner which cannot be waived by a defendant. This is not the law. See: Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Bryant, 349 Pa.Super. 358, 503 A.2d 39 (1986); Commonwealth v. Spencer, 344 Pa.Super. 380, 496 A.2d 1156 (1985); Commonwealth v. Sypin, 341 Pa.Super. 506, 491 A.2d 1371 (1985); Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984); Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981); Commonwealth v. Graves, 275 Pa.Super. 557, 419 A.2d 41 (1980); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979); Commonwealth v. Fields, 251 Pa.Super. 287, 380 A.2d 491 (1977); Commonwealth v. Walls, 248 Pa.Super. 335, 375 A.2d 125 (1977), affd, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973), aff'd, 462 Pa. 342, 341 A.2d 111 (1975). Indeed, even issues of constitutional dimensions can be waived. See: Commonwealth v. Boone, supra (appellant’s contention that she had been denied due process of law by imposition of minimum and maximum sentence was waived by failure to object at sentencing). See also: Commonwealth v. Sessoms, 516 Pa. 365, 368 n. 2, 532 A.2d 775, 782 n. 2 (1987) (invalidity of sentencing guidelines can be waived if not preserved at all stages of adjudication).

In the instant case, appellant could waive and, in fact, did waive a challenge to the authority of the Sentencing Commission to require that prior juvenile adjudications be deemed equivalent to adult convictions for purposes of determining an offender’s prior record score. He waived this issue by failing to raise it in the trial court at sentencing or in his motion to reconsider and modify the same.

The second issue argued by appellant was adequately preserved in the trial court. Because it involves the discretionary aspects of sentencing, however, it is necessary that we determine whether there is a sufficiently substantial issue to require review.

The right of appeal from a final judgment of sentence is guaranteed by Article 5, § 9 of the Pennsylvania Constitution. The exclusive jurisdiction to hear such appeals, except in capital cases, is vested in the Superior Court. 42 Pa.C.S. § 742. Such an appeal may generally be taken as of right by filing a notice of appeal with the clerk of the lower court within the time allowed for such appeal. Pa.R.App.P. 902. With respect to appeals challenging the discretionary aspects of sentencing, however, the legislature has provided at 42 Pa.C.S. § 9781(b) as follows:

(b) Allowance of appeal.—The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. (Emphasis added).

Pursuant to its authority to prescribe rules governing practice and procedure in the courts, the Supreme Court has promulgated rules to implement this statutory provision. By a note accompanying Pa.R.A.P. 902 the proper procedure to be followed in cases brought under Section 9781(b) has been explained as follows:

Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a “petition for allowance of appeal” of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904) (content of the notice of appeal)) operates as the “petition for allowance of appeal” under the Sentencing Code. It automatically raises all possible questions under- 42 Pa. C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented. No additional wording is required or appropriate in the notice of appeal.
In effect, the filing of the “petition for allowance of appeal” contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner.

The procedure for filing the “petition for allowance of appeal” at the briefing stage is set forth in Pa.R.A.P. 2119(f) as follows:

[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary-aspects of sentence.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the defendant, who had been convicted of various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16), (30), was sentenced to pay a fine of $1,000 and to serve a five year term of probation. The Commonwealth appealed. This Court vacated the judgment of sentence and remanded for resentencing on the ground that the sentence was outside the sentencing guidelines and unreasonable. The Supreme Court reversed, holding that it had been error for the Superior Court to consider the merits of the Commonwealth’s appeal where the Commonwealth had failed to comply with the mandate of Rule 2119(f). The Court said:

It must first be observed that our rules make a careful distinction between “questions relating to the discretionary aspects of the sentence” and “the issue whether the appellate court should exercise its discretion to reach such question.” Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 ... speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.
The procedure outlined in the Note accompanying Rule 902 was published in the interest of maintaining consistency between practice under this section of the Sentencing Code and typical appellate practice in Superior Court, which does not ordinarily have discretion as to the exercise of its jurisdiction____
So long as the Commonwealth is required at some point to demonstrate a “substantial question” in accordance with the statute to invoke Superior Court’s jurisdiction, this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the Commonwealth has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court. For this reason it is essential that the rules of procedure governing appeals such as this be followed precisely.
Our insistence on separate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evidence in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.

Id., 513 Pa. at 512-513, 522 A.2d at 19-20.

It is not clear from the foregoing language whether the requirement of Pa.R.App.P. 2119(f) is to be deemed jurisdictional or procedural. After careful study, we have concluded that Rule 2119(f) is procedural only. We do so primarily because even though the Supreme Court’s discussion of the rule was in terms of the Superior Court’s jurisdiction, its decision to vacate the Superior Court’s order to remand for resentencing was based expressly upon the fact that ,[t]he Appellant [hacl] properly preserved his challenge to this procedural violation.” Id., 513 Pa. at 515, 522 A.2d at 20-21 (emphasis added).

Moreover, because the Supreme Court was undoubtedly familiar with Art. 5, § 9 of the Pennsylvania Constitution, we do not believe that its decision in Tuladziecki was intended to raise the procedural requirement of Pa.R.App.P. 2119(f) to the level of a jurisdictional condition precedent to a defendant’s right of appeal from a final judgment of sentence. Instead, we interpret the mandate of Tulad ziecki and Pa.R.App.P. 2119(b) as imposing a procedural requirement, consistent with 42 Pa.C.S. § 9781(b), intended to allow the Superior Court to determine, in advance of considering the merits, whether there is a sufficiently substantial question to warrant appellate review.

Finally, by interpreting the requirements of Pa.R.App.P. 2119(f) to be procedural only we will avoid the numerous ineffective assistance of counsel claims that will most certainly follow if we reject on jurisdictional grounds those appeals seeking review of the discretionary aspects of sentencing because of counsel’s failure to comply with Rule 2119(f).

Whether the rule is jurisdictional or procedural is not an insignificant distinction. If the requirement of Rule 2119(f) is to be deemed jurisdictional, the failure to comply therewith cannot be waived and will have to be raised by this Court sua sponte. See: Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Daly v. School District of Darby Township, 434 Pa. 286, 252 A.2d 638 (1969); Commonwealth v. Helms, 352 Pa.Super. 65, 506 A.2d 1384 (1986); Commonwealth v. Jones, 307 Pa.Super. 558, 453 A.2d 1028 (1982). If it is procedural, however, a failure to comply therewith can be waived and will be waived if it is not objected to by the appellee. In that event, the failure to comply with Rule 2119(f) may be overlooked. See: Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986) (error in captioning appeal as being taken from order denying post-trial motions rather than final judgment of sentence deemed not fatal); Commonwealth v. Dougherty, 351 Pa.Super. 603, 506 A.2d 936 (1986) (failure to include ineffective assistance of counsel claim in statement of questions presented excused); Commonwealth v. Lahoud, 339 Pa.Super. 59, 488 A.2d 307 (1985) (error in notice of appeal deemed harmless); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984) (court decided merits of issues raised despite counsel’s failure to comply with rules concerning contents of appellate briefs); Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984) (merits of issues raised were examined despite violation of rules regarding statement of questions involved); Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979) (failure to raise issue in statement of matters complained of on appeal excused where failure did not defeat Superior Court’s ability to exercise appellate review).

In Tuladziecki, the defendant preserved his challenge to the Commonwealth’s procedural violation of Rule 2119(f) by raising the issue (1) in the Superior Court and (2) in the Supreme Court. In the instant case, the Commonwealth has not objected to or otherwise preserved the defendant’s failure to include in his brief a separate statement showing, as required by Pa.R.App.P. 2119(f), a “substantial question that the sentence imposed [was] not appropriate.” Because the requirement of Rule 2119(f) is procedural and not jurisdictional, the Commonwealth’s failure to object to or otherwise assert the defect in the form of appellant’s brief has resulted in a waiver of the defect. Therefore, the Superior Court will determine, in its own discretion, whether there is a substantial issue requiring it to review the discretionary aspects of the sentence imposed by the trial court.

The appellant contends that the sentencing court abused its discretion because it considered his prior juvenile adjudications and, therefore, did not sentence him as a first offender. The role of prior juvenile adjudications in the sentencing process is an issue which this Court has consistently deemed to be of substantial significance. See: Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987); Commonwealth v. Lyons, 366 Pa.Super. 172, 530 A.2d 1345 (1987) (Wieand, J., dissenting); Commonwealth v. Torres, 362 Pa.Super. 617, 525 A.2d 391 (1987). Therefore, we allow Krum’s appeal and review the sentence imposed by the trial court to determine whether there has been an abuse of discretion. Only if there has been such an abuse will the judgment of sentence be reversed. See: Commonwealth v. Edrington, 490 Pa. 251, 255, 416 A.2d 455, 457 (1980); Commonwealth v. Blood, 357 Pa.Super. 161, 165, 515 A.2d 611, 613 (1986); Commonwealth v. Spencer, 344 Pa.Super. 380, 394, 496 A.2d 1156, 1164 (1985).

The answer to the issue in this case can be found in the Juvenile Act where, at 42 Pa.C.S.A. § 6354(b)(1), the legislature has specifically provided that prior juvenile adjudications of delinquency may be used “in dispositional proceedings after conviction of a felony____” Thus, “[i]t is clearly the intent of the Legislature that a child who continues his pattern of serious and violent anti-social activity into adulthood should not receive the benefit of a cloak of immunity regarding that behavior, when it is relevant to predicting future behavior and the public safety is at risk.” Commonwealth v. Smith, 333 Pa.Super. 179, 182, 481 A.2d 1365, 1366 (1984). See also: Commonwealth v. Johnson, 293 Pa.Super. 143, 437 A.2d 1246 (1981); Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981).

Appellant’s lengthy juvenile record, his substance abuse, and his refusal to alter his pattern of anti-social conduct constituted adequate reasons for the sentencing court to impose a sentence greater than that appropriate for one who has committed a first, adult offense.

The judgments of sentence are affirmed.

BROSKY, J., files a dissenting opinion in which GRILLO, President Judge, and POPOVICH and JOHNSON, JJ., join.

BROSKY, Judge,

dissenting:

This appeal is from the judgment of sentence imposed after appellant pled guilty to two counts of burglary. Appellant contends that: (1) the sentencing court erred in including his juvenile adjudications of delinquency in computing his prior record score; and (2) the sentence imposed was excessive. Finding appellant’s claims to have been waived, I would quash.

On November 2,1984, appellant pled guilty to two counts of burglary, each carrying an offense gravity score of “6”. Appellant was 18 years old at the time of the burglaries. He had no prior adult record, but he did have a juvenile record for burglaries committed at the age of 15. Based on that record, appellant received a prior record score of “6”. He was sentenced on December 28, 1984 to two concurrent terms of four to eight years imprisonment, a sentence within the minimum (standard) range for an offense gravity score of “6” and a prior record score of “6”. Appellant, on January 7, 1985, filed a timely motion to modify sentence which the court below denied on January 17, 1985 after a hearing. This appeal timely followed.

Appellant argues that the provisions of the sentencing guidelines, see 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S. § 9721, which require a sentencing court to use certain juvenile adjudications of delinquency in computing a defendant’s prior record score, are contrary to the legislation authorizing the creation of the guidelines, see 42 Pa.C.S. § 2154(2). He thus concludes that the sentencing court erred in including his prior adjudications in its computation of his prior record score.

Appellant, despite his statements in his brief to the contrary, did not, however, raise this issue in his motion to modify sentence. Rather, he raised only the claim that the sentence was excessive. It is well-settled that sentencing issues not raised in a motion to modify sentence are waived. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984). The only exception to this general rule of waiver concerns sentences that are illegal per se; an issue of sentence legality is never waived. Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921 (1985). I also do not believe that the issue raised here by appellant is one of sentence legality.

Certainly, it is true that if appellant’s juvenile record were not considered, appellant would have a prior record score of zero and the suggested minimum (standard) range for that score and an offense gravity score of six would be 4-12 months, rather than the suggested 33-49 months range under which appellant was sentenced. The sentencing guidelines, however, do not mandate a sentence which the court must impose, but simply set forth ranges of minimum sentences which the sentencing court must consider as one of the factors in its determination of the length of sentence to impose. See 42 Pa.C.S. § 9721(b). The guideline ranges are only “mandatory” in the sense that a sentencing court must give due consideration to the minimum guideline ranges suggested for the crime at issue, and must specify reasons should it choose to impose a minimum sentence outside the suggested ranges. Thus, appellant’s claim is not that the sentence imposed is not a legal one for the crime of burglary, but only that, in reaching its decision to impose the sentence, the sentencing court relied upon an illegal factor, i.e., the guideline range that was based upon a prior record score that included appellant’s prior juvenile adjudications. In other words, appellant assumes that the sentence he received could stand if supported by the proper reasons, but argues that the sentencing court’s reasons were not proper because it relied upon an impermissible (illegal) consideration. It is, of course, well-settled that an attack upon a sentencing court’s reasons for its sentence does notraise a question of the legality of the sentence and is waived if not properly preserved. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc); Commonwealth v. Duden, 326 Pa.Super. 73, 82, 473 A.2d 614, 618, 619 (1984); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536, 537 (1979).

Therefore, I also must conclude that appellant has waived his claim that the sentencing court erred in including his juvenile adjudications of delinquency in computing his prior record score.

Appellant also contends that the sentence imposed was excessive. Though properly preserved in appellant’s motion to modify sentence, I would not reach the merits of appellant’s second contention.

A challenge to a sentence as excessive clearly attacks a discretionary aspect of the sentence imposed. Where a purely discretionary aspect of a sentence is being challenged, a separate statement, demonstrating that a “substantial question” is posed by the aspect under attack, must be included in an appellant’s brief before this Court may address the merits of the sentencing question posed. Pa.R. A.P. 2119(f); see also Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Appellant has not provided this Court with the separate statement required by the appellate rules, and the recent Tuladziecki decision. Hence, I would not reach the merits of appellant’s excessiveness challenge.

As appellant has failed to preserve any issues for resolution on the merits, I would quash the appeal.

CIRILLO, President Judge, and POPOVICH and JOHNSON, JJ., join this dissenting opinion.

      . This issue has now been decided by an en banc panel of this Court in Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987).

      . Appellant also waived the issue which caused the Supreme Court to nullify the sentencing guidelines in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). He waived it by failing to preserve it “at all stages of adjudication up to and including any direct appeal.” Id., 516 Pa. at 368 n. 2, 532 A.2d at 782 n. 2, quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

      . We disapprove of the view suggested in Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987) and Commonwealth v. Rivera, 365 Pa.Super. 361, 529 A.2d 1099 (1987) that this Court lacks jurisdiction to review the discretionary aspects of a sentence in the absence of compliance with Pa.R.A.P. 2119(f) even though the appellee has failed to assert such a defect in the appellant’s brief.

      . 42 Pa.C.S. § 2154(2), as amended by Act 165 of 1986, Act of December 11, 1986, now expressly authorizes the inclusion of juvenile adjudications in the computation of prior record scores.

      . My rationale herein is in accord with the views expressed in the Concurring Opinions authored by Chillo, P.J., and Kelly J. in Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139 (1987) (en banc), as to what does, and does not, raise an issue of sentence legality. In Hartz, appellant challenged the constitutionality of the deadly weapon enhancement section of the sentencing guidelines. The constitutionality issue had not been raised in a motion for reconsideration of sentence. The Concurring Opinions held that a constitutional challenge to a sentencing provision does not raise an issue of sentence legality, but is an attack upon a reason for the sentence imposed. As the sentence imposed was not beyond the statutory or constitutional authority of the sentencing court, the concurrences found appellant’s challenge, that an unconstitutional reason had been considered in the computation of his sentence, to have been waived for failure to include it in a motion for reconsideration.

      . The majority questions my application of the Tuladziecki decision to the matter sub judice, in light of the Commonwealth's failure to challenge appellant’s lack of compliance with Pa.R.A.P. 2119(f). It is their contention that the requirements of Rule 2119(f) are strictly procedural, and that Tuladziecki does not require the result we reach infra where the appellee has not “preserved his challenge to this procedural violation." While I do not deny that Tuladziecki comments upon Regis Tuladziecki’s preservation of his Rule 2119(f) challenge, I feel that the position taken by the majority involves an overly narrow reading of the Tuladziecki decision.

        Tuladziecki also states, at p. 19:

        So long as the Commonwealth is required at some point to demonstrate a “substantial question” in accordance with the statute to invoke Superior Court’s jurisdiction, this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the Commonwealth has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court. For this reason it is essential that the rules of procedure governing appeals such as this be followed precisely. (Emphasis added).
      The clear import of the above does not support the position that Rule 2119(f) is strictly procedural in nature. It is a procedural rule that is ultimately jurisdictional. If the rule is not followed, this Court is placed in the position of making a post hoc determination as to whether or not a substantial question is presented, through an examination of the merits of the sentencing question at issue. This, in effect, permits an appellant to obtain appellate review as of right of a discretionary aspect of sentencing. This is precisely what the Supreme Court has forbidden. Unless an appellant strictly complies with the procedural requirements of Rule 2119(f), this Court’s jurisdiction, according to the above-emphasized language, is not invoked.
      Hence, in light of my conclusion that non-compliance with Rule 2119(f) deprives this Court of jurisdiction to review discretionary aspects of sentencing, I do not find it problematic that the Commonwealth has not raised this challenge. It is well-settled that this Court may raise issues of appealability and jurisdiction sua sponte. Indiana County Hospital Authority v. McCarl’s Plumbing and Heating Co., 344 Pa.Super. 226, 228, 496 A.2d 767, 768 (1985).

      . As discussed infra, I also do not find appellant’s challenge to the inclusion of juvenile adjudications in his prior record score, to be a challenge to the legality of his sentence. However, as noted infra, a challenge to the legality of a sentence cannot be waived; furthermore, a separate Tuladziecki statement is not required when an appellant attacks the legality of his sentence. 42 Pa.C.S. § 9781(a). Hence, this Court was required to determine, initially, if the inclusion of an alleged impermissible factor in the computation of a defendant’s sentence, makes that sentence illegal, or merely demonstrates an abuse of discretion on the part of the sentencing court. It was only after this determination was made that we were able to decide that appellant's first contention on appeal was waived, for failure to include it in the motion to modify sentence filed below.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    533 A.2d 141
    COMMONWEALTH of Pennsylvania, Appellant, v. Melvin GANT.
    Superior Court of Pennsylvania.
    Submitted May 29, 1987.
    Filed Nov. 2, 1987.

      Maxine Stotland, Assistant District Attorney, Philadelphia, for Com., appellant.
    Before ROWLEY, KELLY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Judgment of Sentence imposed April 26, 1985, in the Court of Common Pleas of Philadelphia County sentencing the appellee, Melvin Gant, to ten years of probation.

On May 11, 1983, following a non-jury trial before the Honorable Thomas N. Shiomos, appellee, Melvin Gant, was found guilty of rape, simple assault, unlawful restraint, indecent exposure and indecent assault. Timely post-verdict motions were filed on May 20, 1983. On February 14, 1984, appellee also filed a motion for a new trial based on after-discovered evidence. On September 20, 1984, Judge Shiomos denied all post-verdict motions, and sentenced appellee to two and one-half to five years of imprisonment for rape. Appellee filed a timely petition for reconsideration of sentence on September 25, 1984. Upon consideration of appellee’s petition, on December 24, 1984, Judge Shiomos vacated the sentence of September 20, 1984, and sentenced the appellee to ten years probation. Thereafter, on January 2, 1985, the Commonwealth filed a “Petition In Support of Order to Vacate.” On that same January 2, 1985 date, Judge Shiomos vacated the December 24, 1984 sentence and ordered that a new sentencing hearing be scheduled. On April 26, 1985, following a hearing on the matter, the Commonwealth’s petition was denied, and the sentence of December 24,1984 was reinstated. From the April 26, 1985 reinstatement of the December 24,1984 sentence, this Commonwealth appeal followed.

The Commonwealth presents the following questions for our consideration:

1. Is not the September 20, 1984 sentence of 2V2 to 5 years imprisonment for rape the only valid sentence imposed where the trial court did not vacate the sentence within the required thirty day limit provided by statute?
2. Assuming that the probationary sentence imposed on April 26, 1985, was legal, does this sentence constitute an unreasonable deviation from the sentencing guidelines which recommend a minimum sentence of 42 to 66 months for a rape conviction?

(Appellant’s brief, p. 3)

In its first issue the Commonwealth contends that the sole lawful sentence imposed for appellee’s rape conviction is the initial sentence of incarceration imposed by the trial court because the trial court’s failure to timely vacate the original sentence bars further action by the court to alter the sentence.

A sentencing court may modify a sentence within thirty days after its imposition. This time period may be extended only if the court vacates the sentence within the required thirty-day limit and, while thus retaining jurisdiction, later imposes sentence. Commonwealth v. Lynch, 304 Pa.Superior Ct. 248, 251, 450 A.2d 664, 666 (1982).

Here, the trial court imposed a sentence of five to ten years incarceration on September 20, 1984, and then purported to vacate this sentence on December 20, 1984, two months beyond the expiration of its jurisdiction to modify sentence, in order to impose a ten-year probationary sentence. Both the vacation of the initial sentence and the attempted imposition of the reduced sentence are a nullity. Commonwealth v. Martin, 346 Pa.Superior Ct. 129, 499 A.2d 344 (1985).

Considering the foregoing the judgment of sentence imposed April 26,1985 is vacated and the case is remanded for reinstatement of the September 20, 1984 sentence. Jurisdiction is relinquished.

      . Because of our disposition of appellant’s first claim we do not reach the merit of the remaining claim.


author: MONTEMURO, Judge:

text:
    533 A.2d 143
    Judith BARCLAY, Appellant, v. David BARCLAY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed Nov. 5, 1987.

      David I. Grunfeld, Philadelphia, for appellant.
    Thomas A. Winkelspecht, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This appeal concerns the custody of a three-year-old girl, L.L.B.

Appellant, J.B., and appellee, D.B., were married in August of 1982. L.L.B. was born on May 6, 1984. On August 9, 1984, appellant filed a complaint in divorce. Following a final separation of the parties in December of 1984, appellant and L.L.B. resided with appellant’s mother. Appellee visited L.L.B. during 1985, and on July 15, 1985, appellee filed a petition seeking partial custody of the child. On November 26, 1985, an agreed order granting custody of L.L.B. to appellant and partial custody rights to appellee was entered into by the parties and approved by the Court of Common Pleas of Philadelphia.

On May 28, 1986, appellant filed a petition to modify the custody order. In this petition, appellant asserted that a substantial change in circumstances had occurred following the entry of the agreed custody order of November 26, 1985. Specifically, appellant alleged that her suspicion that her husband, appellee herein, was not the natural father of L.L.B. had been confirmed, and that “one P.B. has been shown to be the natural father by blood test.” Further, appellant asserted that it would be in the best interests of L.L.B. to have no time with appellee because “the child is more familiar with P.B.” than with the appellee and appellant “is engaged to marry P.B.” Following a hearing on the matter, the trial court denied appellant’s petition to modify the custody order of November 26, 1985, finding that appellant had failed to establish a substantial change in circumstances since the entry of that order. The appellant argues on appeal that the trial court erred in its conclusion that the facts presented before the court were not sufficient to constitute a substantial change in circumstances, thus warranting a reconsideration of the existing custody order.

Our supreme court has recently enunciated the appropriate standard of review in custody matters. In Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), the Court reiterated the long standing principle that a broad or searching appellate review is proper, and indeed, necessary in custody matters to insure that the focus of the trial court was on the best interests of the child. Id., 515 Pa. at 147, 527 A.2d at 529. Thus, as the Court stated in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977), “an appellate court is not bound by deductions and inferences made by a trial court from the facts found, ... nor must a reviewing court accept a finding which has no competent evidence to support it.” However, this broad scope of appellate review in custody matters does not allow us to usurp the fact-finding function of the trial court. In Lombardo, the court cited with approval our language in Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-598, 296 A.2d 838, 841 (1972):

We have recognized that the trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination' of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge.

Thus, in the case before us, we must determine whether the trial court’s “incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ... and thus represent a gross abuse of discretion.” Lombardo, supra, 515 Pa. at 148, 527 A.2d at 529 (quoting Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984)) (citations omitted). Upon a thorough review of the opinion of the trial court and of the record, we find that that trial court’s factual conclusions were supported by competent evidence. Thus, finding no gross abuse of discretion, we must affirm.

In order to justify a court’s reconsideration of a valid prior custody order, the burden rests upon the party seeking modification of that order to prove a substantial change in circumstances following entry of the prior order. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). This burden is not relaxed because a custody order is entered into by agreement of the parties, as in the case at bar, without a hearing on the merits. Espersen v. Davidow, 359 Pa.Super. 531, 519 A.2d 479 (1986). Nor is the burden lessened when a party seeks modification of a partial custody order as opposed to an order providing for full custody. Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985). It is only after a substantial change in circumstances is established, that both parents share equally in the burden of demonstrating, that the child’s best interests will be served by the granting of custody to them. Gonzalez v. Gonzalez, 337 Pa.Super. 1, 6, 486 A.2d 449, 452 (1984) (citing English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., supra.)

In the case before us, the trial court determined that appellant had failed to prove a substantial change in circumstances following entry of the November 1985 custody order. Although blood tests taken in the spring of 1986 further convinced appellant that P.B. is L.L.B.’s natural father, the trial court found that appellant had believed that P.B. was the natural father of her child even during her pregnancy when she was married and living with appellee.

Appellant testified that in July of 1983, when she was separated from appellee for a period of one and one-half weeks, she engaged in sexual relations with P.B. (N.T. at 15a and 44a). Nine months later, L.L.B. was born. The trial court specifically noted appellant’s testimony that when she first saw L.L.B., she believed she looked like P.B. (N.T. at 20a). Appellant testified that throughout 1984 and 1985, she felt that the father of the child was P.B. (N.T. at 23a). Thus, the changed circumstance since the entry of the agreed custody order of November 26, 1985 has been appellant’s decision to seek to prove in court that her suspicions regarding the paternity of P.B. are correct and not a new discovery that appellee may not be L.L.B.’s natural father. The only other change in circumstance found by the trial court is appellant’s intention to marry P.B. upon her divorce from appellee. Opinion of Trial Court at 4. We agree with the trial court that appellant has failed to prove any substantial change of circumstances as would warrant a reconsideration of the November 26, 1985 custody order.

This case can be readily distinguished from those cases where a substantial change in circumstances warranting re-examination of an existing custody order has been found. In Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985), following an award of shared custody, the mother of the child remarried and because of an improved financial status, she was freed from her need to work. The mother and her new husband occupied a new home with ample space for the child. In Parker, we found that the mother’s changed life-style is “now viewed by the trial court as stable and permanent.” Id., 344 Pa.Superior Ct. at 559, 496 A.2d at 1248. We agreed with the trial court in Parker that significant changes in the circumstances had taken place, allowing the court to reconsider and modify the shared custody order to increase the child’s contact with his mother. In Espersen v. Davidow, supra, we found many factors which convinced us that the trial court had erred in finding no substantial change in circumstances since entry of an initial custody order which maintained custody of the minor child, Shannon, in the appellee-mother. Specifically, we noted that following the entry of the custody order, both of Shannon’s parents had remarried. The father, who did not have a residence at the time of the initial custody order, now had a more than adequate residence. The father’s new wife was a full-time homemaker and was, thus, available to care for Shannon. Shannon testified that she wanted to change her residence and live with her father and stepmother. In Espersen, evidence was also introduced to show that Shannon’s relationship with her stepfather was not a good one and that her present living arrangements were causing her to suffer anxiety and self-perception problems.

The case at bar presents none of the factors which existed in Parker and in Espersen. Neither the appellant nor the appellee has changed residence since the agreed custody order was entered on November 26, 1985. Appellant and L.L.B. continue to reside at the home of appellant’s mother. Neither party has remarried because their divorce proceeding is pending. Moreover, there is no evidence in the record to suggest that either party has made any changes in their respective lifestyles. Significantly, appellant was unable to establish that appellee was unfit to have partial custody of L.L.B. or that appellee’s visits with L.L.B. have become upsetting or harmful for the child since November of 1985. On the contrary, appellant has merely alleged that appellee’s partial custody of L.L.B. may have an adverse effect on the child sometime in the future when the child is older. Appellant testified that she was upset about “... the confusion that is going to come about with her when she gets older when she going to ask me questions: well, Why do I see David? Why do I see daddy? and I have to go and tell her that, well, I was married to David____” N.T. at 75a. Finally, appellant’s plans to remarry do not require a re-examination of this custody order. This court has held that even where parties do remarry following the entry of a custody order, remarriage per se is not sufficient to warrant reconsideration of the custody order. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 44, 446 A.2d 1323, 1326 (1982); See also Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 115 (1985). Appellant failed to establish any way in which her plans to remarry have so changed the circumstances that reconsideration of appellee’s partial custody is warranted. Certainly, there is no evidence that appellant’s marriage plans have impaired the relationship between the appellee and his daughter.

Finally, appellant argues that the trial court erred because it refused to consider the evidence of blood tests challenging the paternity of the appellee in determining whether there had been a substantial change in circumstances. We disagree. The opinion of the trial court shows that the court did consider this evidence in reaching its decision. The court concluded, despite the blood tests, that the circumstances surrounding L.L.B. and her parents had not substantially changed following the November 1985 custody order. Even though appellant continued to doubt the paternity of the appellee, as she had since 1983, the trial court correctly recognized that the appellee is presumed to be the natural father of L.L.B. because she was born during the marriage of the parties. See Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984). More importantly, appellee continued to consider himself to be the natural father of L.L.B. and to act as such following the entry of the November 1985 custody order. It may be that the essence of appellant’s argument on appeal is that the trial court erred in not deciding paternity. However, the issue of paternity was not properly before the trial court in a petition to modify the custody order. Appellant may bring this issue squarely before a court by filing a petition to terminate the parental rights of the appellee and allege that he is the presumptive, but not the natural father of L.L.B. See 23 Pa.C.S.A. § 2511(a)(3).

Appellee argues in his brief that based on the decision of our supreme court in Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976) appellant should be equitably estopped from questioning the paternity of the appellee. In Young, the court held that the appellant was estopped from questioning the parental relationship between her former husband and the child born during their marriage. The court, in finding an estoppel, relied on the fact that the appellant had accepted child support payments from her former husband for over three years and had failed to raise the question of paternity in earlier court proceedings. We find that appellee’s equitable estoppel argument is premature. In Young, the appellant-mother brought an action to terminate the parental rights of the appellee on the grounds that he was the presumptive but not the natural father of her son. The issue of paternity was thus directly before the court. The doctrine of estoppel espoused in Young has been applied only in cases where paternity is an issue before the trial court. For example, in the recent case of Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987), the appellant had filed a petition to terminate his obligation to pay support on the grounds that he was not the father of the child. This court found that appellant was equitably estopped from denying paternity because he had acknowledged paternity of the child throughout a ten-year marriage and had affirmed his responsibility to support the child by entering into a support order on her behalf. See also Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 306, 472 A.2d 1128, 1131-1132 (1984); Commonwealth ex rel. Gonzales v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976). In the case at bar, the trial court was not deciding the issue of paternity. The sole issue was whether there had been any substantial change in the circumstances of the parties to warrant a modification of the existing custody order. As a result, the doctrine of equitable estoppel argued by appellee is not applicable in this case.

For the foregoing reasons, we find no abuse of discretion by the trial court in dismissing appellant’s petition to modify custody order on the grounds that appellant has failed to establish a significant change in circumstances. This Court has recognized that by imposing upon a party challenging an existing custody order the initial hurdle of showing changed circumstances, the “doctrine of res judicata is adhered to without unduly prejudicing the interest of either parent or child.” Espersen v. Davidow, supra. In reaching our decision, we emphasize that appellant is in no way precluded from petitioning the trial court to terminate the parental rights of appellee on the grounds that he is the presumptive but not the natural father of L.L.B. See Pa.C.S.A. § 2511(a)(3). In his dissenting opinion in Adoption of Young, 469 Pa. 141, 154, 364 A.2d 1307, 1314 (1976), Justice Pomeroy recognized that “the provisions of the involuntary termination statute were enacted to protect the children of this Commonwealth.” Id., 469 Pa. at 156, 364 A.2d at 1315. Indeed, our legislature has mandated that a “court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b). By seeking to end all contact between L.L.B. and her presumed natural father, D.B., through a petition to modify an existing custody order, appellant would effectively deprive this minor child of a “judicial inquiry into whether grounds exist for the judicial involuntary termination of his presumed father’s rights as a parent on the ground of non-paternity, and whether or not, in the light of evidence which would otherwise be adduced, it is in the best interests of the child that termination be ordered.” Id., 469 Pa. at 155, 364 A.2d at 1315. The best interests of this minor child will be properly addressed and safeguarded in an involuntary termination proceeding, if appellant chooses to bring such an action, because the Adoption Act mandates that counsel be appointed to represent children in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. 23 Pa.C.S.A. § 2313(a). See also In re Adoption of N.A.G., 324 Pa.Super. 345, 471 A.2d 871 (1984). This Court has recognized that the purpose of 23 Pa.C.S.A. § 2313(a) is to “guarantee that the needs and welfare of the children would be advanced actively by an advocate whose loyalty was owed exclusively to them.” Id., 324 Pa.Superior Ct. at 351, 471 A.2d at 874.

Order affirmed.

      . At the hearing on September 12, 1986, appellant orally amended her petition to assert, in addition, that appellee was unable to handle the care of the child correctly and that he was unfit to have custody of the child. The trial court, in its opinion, specifically found that appellant had failed to establish that appellee was a harmful influence on L.L.B. or that his relationship with the child had changed since entry of the agreed custody order. Opinion of Trial Court at 5. Appellant has not raised any issue in her Brief with reference to the disposition of her oral amendment by the trial court. As a result, we need not address this issue.

      . The parentage testing report issued by the Penn Jersey Regional Red Cross Blood Service states that P.B. is not excluded as the father of L.L.B. The report also states that the probability that P.B. is the father of L.L.B. is "99.898% as compared to a random man.” The appellee, D.B., has not submitted to blood testing. We note that 42 Pa.C.S.A. § 6136 provides that if all experts agree that blood test results exclude an individual as a possible father, then the question of paternity is conclusively resolved. However, in Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), this court determined that although HLA blood test results may be introduced as some evidence to affirmatively prove paternity, this evidence is not conclusive. Instead, blood test results must be considered in conjunction with all of the evidence introduced where a party seeks to prove paternity affirmatively. See also Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986).


author: BECK, Judge:

text:
    533 A.2d 148
    Curtis Leroy GURLEY, Appellant, v. CITY OF PHILADELPHIA (CITY) and Pennsylvania Assigned Claims Plan (PACP) and the Travelers Insurance Company (Travelers), Appellees. Carmen ROBINSON, Appellant, v. TRAVELERS, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1987.
    Filed Nov. 6, 1987.

      Francis X. Dochney, Philadelphia, for Gurley, appellant (at 3207 Philadelphia 1985).
    Chad F. Kenney, Philadelphia, for Robinson, appellant (at 528 Philadelphia 1986).
    A. Richard Feldman, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and JOHNSON, JJ., en banc.
   BECK, Judge:

These are two appeals that were resubmitted after initial argument for consideration by the Court en banc because they both raise the same important issue regarding the proper interpretation of Section 1009.108(a)(1)(E) of the now-repealed No-fault Motor Vehicle Insurance Act, Pa. Stat.Ann. tit. 40 §§ 1009.101-.701 (repealed effective October 1, 1984) (the “No-Fault Act”).

We begin by reciting the pertinent facts and procedural history of each action.

Gurley v. City of Philadelphia et al. Nos. 3207 Phl. 1985 and 439 Phl. 1986

On June 22,1984, appellant Leroy Gurley, while riding his bicycle, was struck by a motor vehicle owned by the City of Philadelphia and operated by Philadelphia police officers. Gurley was a pedestrian who did not have his own no-fault policy and who did not live in a household in which someone held such a policy. Therefore, under Section 204(a)(4) of the No-fault Act, the proper source of security for Gurley’s basic loss benefits was the City as the owner of the vehicle involved in. the accident. Gurley presented a claim for benefits to the City, and the City denied the claim on the ground that it is immune from suit under the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. §§ 8541-8564 (1982). Gurley then presented his claim to the Pennsylvania Assigned Claims Plan (the “Plan”) pursuant to the No-fault Act. The Travelers Insurance Company (“Travelers”), the company designated by the Plan to service Gurley’s claim, denied the claim on the ground that Gurley’s sole remedy was to pursue his claim against the City. Gurley then filed a complaint against the City, the Plan and Travelers.

The Plan and Travelers filed preliminary objections claiming that Gurley was not entitled under the No-fault Act to basic loss benefits from the Plan because the City is the proper source of no-fault benefits. The trial court granted these preliminary objections, dismissed Gurley’s complaint as against the Plan and Travelers, and this appeal followed.

Robinson v. The Travelers Insurance Company et al. No. 528 Phl. 1986

On June 13, 1984, appellant-Robinson was a passenger on a SEPTA trolley which was involved in a collision with a City of Philadelphia motor vehicle. As a result of this collision, Robinson claims to have sustained injuries. Robinson did not carry a no-fault policy nor did a member of her household. Because a trolley is not defined as a motor vehicle under the No-fault Act and the Act treats trolley passengers as if they were pedestrians, Robinson initially sought to recover basic loss benefits from the City as the owner of the vehicle that collided with the trolley. As in the case of Mr. Gurley, the City denied payment on the basis of the Political Subdivision Tort Claims Act, supra. Robinson then presented her claim to the Plan. Travelers, the company designated to service this claim, also denied the claim on the ground that Robinson’s sole remedy was to pursue her claim against the City. Robinson then filed a complaint against Travelers, which joined the City as an additional defendant. Travelers filed preliminary objections containing the same argument as was made in the Gurley matter. The trial court granted Travelers’ preliminary objections, dismissed Robinson’s complaint as against Travelers, and this appeal followed.

Discussion

Appellants Gurley and Robinson base their entitlement to benefits from the Plan on Section 1009.108(a)(1)(E) of the No-fault Act. This section provided that a victim

may obtain basic benefits through the assigned claims plan ... if basic loss insurance:
(E) benefits are refused by an obligor for a reason other than that the individual is not entitled in accordance with this act to receive the basic loss benefits claimed.

40 P.S. § 1009.108(a)(1)(E).

They argue that they are entitled to benefits from the Plan because the City refused benefits for a reason “other than that [the appellants were] ... not entitled in accordance with this act to receive the basic loss benefits claimed.” Appellants claim that the City’s denial of benefits on the basis of immunity is external to the No-fault Act and not in any way connected with appellants’ entitlement to benefits under the Act. Thus, they would have us conclude that the Plan must provide the benefits.

Appellants also argue that their interpretation of Section 1009.108(a)(1)(E) is in accord with the fundamental purpose of the No-fault Act to provide speedy, inexpensive payment of basic loss benefits to victims of motor vehicle accidents. They assert that part of the statutory scheme to effect this goal is the Plan, which affords recovery of benefits to motor vehicle victims when no basic loss insurance policy is otherwise available to cover the claim. Id. § 1009.108(a).

Appellees respond that appellants have misconstrued Section 1009.108(a)(1)(E). Appellees assert that the Plan was not intended to be an interim insurer which would provide benefits to an accident victim and then seek subrogation from the proper source of security under the terms of the No-fault Act. Appellees assert that under the facts of these cases, appellants have a source of security in the City as the insurer of the motor vehicles involved in the accidents and that their only claim for benefits must be against this source.

Although the issue regarding the interpretation of Section 1009.108(a)(1)(E) is both important and intriguing, we find that we need not reach it to dispose of the appeals before us today. This is a result of a development in the law that occurred while these cases were on appeal to this Court.

During the pendency of these cases in the trial courts and at the time of the filing of these appeals, the merit of the City’s claim of immunity was unclear. Although in City of Philadelphia v. Nationwide Ins. Co., 99 Pa.Commw. 20, 498 A.2d 462 (1985), the Commonwealth Court had held that the City is not immune from the payment of basic loss benefits under the No-fault Act, the City had petitioned the Supreme Court for allocatur in that case and the final resolution of the issue was, therefore, in doubt. However, on November 24, 1986, after these appeals were filed but before oral argument to the court en banc, the Supreme Court denied the City’s petition for allocatur. The parties in the instant cases informed this Court of this development at oral argument.

Since the denial of allocatur rendered the Commonwealth Court’s decision in City of Philadelphia v. Nationwide a final appellate disposition of the issue of the City’s immunity, we find that the issue of the Plan’s possible liability to Gurley and Robinson for basic loss benefits has become moot. The Plan (and Travelers as the company assigned to service appellants’ claims) cannot under any interpretation of the No-fault Act be liable for appellants’ benefits where the primary obligor under the Act, the City, has lost its defense of immunity. As we stated in Tyler v. Insurance Co. of North America, 311 Pa.Super. 25, 30, 457 A.2d 95, 97 (1983):

To determine the applicable source of basic loss benefits under Section 204’s priority system, the pertinence of each subsection must be considered seriatim—that is, the applicability of each preceding subsection must be excluded before the next may be considered. The security provided by the assigned claims plan is applicable only as a last resort.

Therefore, we must on this basis affirm the trial courts’ grant of the preliminary objections of the Plan and Travelers in both cases.

We need address only one further issue before we conclude. At oral argument, counsel for Gurley and Robinson argued that despite the now final decision in City of Philadelphia v. Nationwide, which admittedly moots the question of the Plan’s or Travelers’ liability for basic loss benefits, we must nevertheless reverse the trial courts’ grant of preliminary objections. They argued that the Plan and Travelers must remain as defendants because appellants still have a meritorious claim against those defendants for interest, attorneys’ fees and costs. Our review of the record reveals that both appellants did indeed pray for these additional items in their complaints against these defendants.

In the Robinson case, we wijl not consider this ground for reversal because appellant made no reference to this issue in her brief to this Court. The issue is not included in the Statement of Questions nor is it referenced in the Argument section of the brief. Appellant did not argue that in the event that the City’s immunity was eliminated as a defense, the grant of the preliminary objections of the Plan and Travelers should still be reversed so as to preserve appellant’s right to recover interest, fees and costs against them.

Nor can appellant defend this omission on the ground that she could not have known that the Supreme Court would deny allocatur in City of Philadelphia v. Nationwide during the pendency of these appeals. In fact, the denial of allocatur occurred several months before these parties resubmitted their briefs to this Court for en banc consideration and yet appellant did not seek to amend or supplement her brief to inform us of the denial of allocatur and to amend her position in light thereof. We note that our Rules of Appellate Procedure make specific provision for a change in the law after the time of briefing. Rule 2501 requires counsel who have knowledge of certain changes in the status of authorities cited to this Court to inform the Court by letter of that change. Pa.R.App.P. 2501. Even if this is not a situation that falls squarely within the parameters of Rule 2501, and we believe it may well be, we note that appellant could have petitioned for leave to file supplemental briefs or memoranda of law. Appellant did not do so. Therefore, we find that the appellant in Robinson has waived this argument as a ground for reversal. Pa.R. App.P. 2116; Commonwealth v. Gillespie, 333 Pa.Super. 576, 482 A.2d 1023 (1984); Wicker v. Civil Serv. Comm’n, 74 Pa.Commw. 548, 460 A.2d 407 (1983).

In Gurley, we might also decide that this issue has been waived on appeal since the appellant in that case also failed to include any reference to it in the Statement of Questions on Appeal section of his brief. However, we will not do so since the Brief does include a passing reference to the issue in the Argument section and we can summarily dispose of the issue on the merits.

Appellant rests his claim for the payment of interest, costs and fees on Sections 106 and 107 of the No-fault Act. Section 106 provides for the payment by an obligor of interest on “overdue payments” of no-fault benefits. The section quite clearly does not refer to a situation like the instant case, where the parties are involved in a litigated dispute over the liability of one potential obligor for the payment of the benefits which is then rendered moot when it becomes clear that another party is the only potentially liable obligor under the Act. Since there will now be no payment of benefits by the Plan in this case, we cannot see how the Plan could be obligated to pay interest.

Section 107 provides that in any action for benefits under the Act where the court finds that the obligor has denied the claim “without reasonable foundation”, the court may award the claimant’s attorney a reasonable fee. 40 P.S. §§ 1009.107(3). Once again, this section clearly contemplates the payment of fees only when an obligor ultimately makes a payment of benefits. Even assuming arguendo, however, that the section might require a payment of fees in a situation like the instant case, we do not find the Plan’s position in this case to be in the slightest degree unreasonable. The Plan took a position for which there is clearly colorable support and as to which there is no legal authority directly on point. This is not the type of case in which an award of attorney’s fees is warranted. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Thus, in Gurley, we reject the claim for interest, fees and costs as a ground for reversal.

In Gurley v. City of Philadelphia et al., Appeal No. 439 Phl 1986, the order of the trial court granting appellees’ preliminary objections is affirmed. The prior appeal taken by Gurley, Appeal No. 3207 Phi 1985, which was mistakenly taken from an order that the trial court had vacated pending a ruling on Gurley’s timely petition for reconsideration thereof, is quashed.

In Robinson v. Travelers et al., Appeal No. 528 Phl 1986, the order of the trial court granting appellee’s preliminary objections is affirmed.

TAMILIA and JOHNSON, JJ., concur in the result.

      . Both cases involve motor vehicle accidents that occurred prior to the effective date of the repeal of the No-fault Act. Thus, the Act’s provisions are applicable.


author:
BECK, Judge:
      OLSZEWSKI, Judge,

text:
    533 A.2d 152
    NATIONAL RECOVERY SYSTEMS, Appellant, v. Allen PERLMAN, Appellee.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Nov. 6, 1987.

      Melvin Rubin, Ardmore, for appellant.
    Kevin Kercher, Allentown, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   BECK, Judge:

This appeal presents the issue of whether an order denying a motion to enforce an alleged settlement agreement is appealable. We find that it is not, and therefore quash this appeal.

On September 19, 1985, appellant National Recovery Systems filed an action in assumpsit to recover $18,000 which appellee Allen Perlman had allegedly borrowed and failed to repay. Appellee filed preliminary objections which were argued and subsequently denied. On December 26, 1985, appellee filed an answer and new matter to appellant’s action. The case was then scheduled to be heard by an arbitration panel on May 21, 1986.

Prior to the hearing date, however, the parties exchanged correspondence regarding settlement. Appellant claims that in that correspondence, appellee offered appellant the sum of $9,000.00 in full and final settlement of the suit, to be paid within ten days after appellant’s acceptance of the settlement offer. Appellant avers that he accepted this settlement offer and a binding contract arose. Appellee, on the other hand, claims that appellant’s purported acceptance added the condition of payment within ten days and was therefore no more than a counteroffer, which appellee did not accept.

On May 9, 1986, appellant filed a motion to enforce the alleged settlement agreement, which the trial court denied. Appellant filed a timely appeal of the trial court’s order. Appellee then moved to quash the appeal as being interlocutory in nature.

We agree with appellee that the denial of a motion to enforce a settlement agreement is non-appealable. We therefore quash this appeal.

This is not the first time that this court has considered whether an order denying enforcement of an alleged settlement agreement is appealable. In Darabant v. Atwood Home Builders, Inc., 281 Pa.Super. 153, 421 A.2d 1194 (1980), this court dismissed an appeal from an order striking a settlement agreement and placing the case on the trial list. The court in Darabant found that such an order was neither a final order from which an appeal could be taken pursuant to Pa.R.App.P. 341, nor was it one of the appeal-able interlocutory decrees from which an appeal is authorized by Pa.R.App.P. 311. Id., 281 Pa.Super. at 155, 421 A.2d at 1195. The court did not consider, however, whether or not the order was appealable under the doctrine first enunciated in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and adopted by Pennsylvania in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

We therefore consider whether an order denying enforcement of a settlement agreement is appealable under the Cohen doctrine.

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

The trial court’s order in the instant case is separable from and collateral to the main cause of action. The order disposed of the issue of whether the purported settlement agreement was enforceable, a matter separable from the merits of appellant’s claim in assumpsit. We assume arguendo that appellant’s right to enforcement of the settlement agreement is a right too important to be denied review. However, we do not find that the question of the validity of a settlement agreement is “such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 545.

The right appellant is asserting in this action is the right to the benefit of what appellant alleges is a valid settlement agreement. The primary benefit of such an agreement is, of course, the avoidance of the time, expense, and other burdens incidental to proceeding to trial on the underlying assumpsit claim. While our quashing this appeal has the effect of requiring appellant to proceed to trial on the underlying claim, it does not affect in any way appellant’s right to the benefits of his settlement agreement. Appellant is free to raise the issue of the validity of the settlement agreement on appeal from the judgment on the underlying claim, or in a collateral action. If the settlement agreement is determined to be valid, appellant will have the right to recover from appellee the damages caused by appellee’s breach of the agreement, including the time, expense, and other burdens of proceeding to trial.

It was this availability of later review that persuaded our Supreme Court in Pugar v. Greco to hold that an order denying parties’ leave to appeal an arbitration award until they had paid the costs of arbitration as required by local rule was not appealable under the Cohen standard. Appellants challenged the rule on the grounds that requiring them to pay the costs of arbitration before being permitted to appeal the award to the court of common pleas deprived them of their right to a jury trial. Our Supreme Court said:

The order of the trial court is, indeed, collateral to the basic liability question, and it does involve a right too important to be denied review. The order does not, however, adversely affect a claimed right which will be irreparably lost if review is postponed. Although appellants must in the first instance pay the required amount of costs and fees they do not thereby lose their right to question the validity of the fee payment as a condition to their right to trial de novo either at the termination of this proceeding or in a collateral action. The issue is neither waived nor mooted by the inability of appellants to appeal at this stage. Appellants are not “out of court”, either on the merits of the automobile accident claim or on the right to jury trial question. Upon payment of the fee and costs appellants’ appeal from the adverse arbitrators’ award will proceed in the customary manner. If they or either of them should not succeed in that de novo trial, the alleged error in requiring the payment of the $60 fee as a condition of the ability to have a jury trial can be raised on appeal in the normal course, along with any other assignments of error. If, however, either appellant or both should prevail in their trial de novo, they will not be precluded from seeking the return of the fee from the court, for the ruling on the fee payment will have become a final adverse ruling from which an appeal would then lie. Alternatively, they might choose to proceed by a collateral action. While either method may be more cumbersome for them than it would be if this court were to reach and decide the merits on this present appeal, each alternative would comport with our policy of discouraging a multiplicity of appeals in a single case, or, as it has sometimes been put, the policy of precluding “piecemeal determinations and the consequent protraction of litigation.” McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955).

Pugar v. Greco, 483 Pa. at 75, 394 A.2d at 545-546 (emphasis added) (footnote omitted).

We quash this appeal because the order here does not meet the requirements for appealability under the Cohen doctrine. We also wish to state our growing conviction that our approach to the appealability of orders under Cohen needs to be re-examined. As stated by Judge Del Sole, in a dissenting opinion in Zarnecki v. Shepegi, 532 A.2d 873, 881 (Pa.Super.1987) (Del Sole, J., dissenting):

The present state of the law in this area is confusing to say the least. Our appellate courts have held that the failure to immediately appeal one of these misnomered ‘final and appealable orders’ results in a loss of the right to have the trial court action later reviewed. See Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986), Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987); (dissenting opinion by Del Sole, J.). This in and of itself invites cautious counsel, when faced with the difficult question of determining whether or not an order is appealable, to take an immediate appeal, delay the litigation at the trial level and further burden the appellate courts of Pennsylvania.

We are of the opinion that both the bench and bar would be better served by a return to the strict definition of a final order given in Pugar v. Greco: “one which usually ends the litigation, or alternatively, disposes of the entire case,” 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), at least as to one party to the suit.

Appeal quashed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I am in total agreement with the majority in calling for a re-examination of the collateral order doctrine. On the facts of this case, however, I disagree with the majority’s conclusion that the order denying the motion to enforce the settlement agreement was not appealable.

It is well settled that an appeal will lie only from a final order unless otherwise permitted by statute. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985); Pugar v. Greco, 483 Pa. 678, 72, 394 A.2d 542, 544 (1978). “A final order is one which usually ends the litigation, or alternatively, disposes of the entire case.” Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 544-545. “Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” Fried v. Fried, supra, 509 Pa. at 93, 501 A.2d at 213, quoting T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). Moreover, “[t]he finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545, quoting, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975); Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983).

The instant order denying appellant’s motion to enforce an alleged settlement agreement is not a final order under these principles. It did not end the litigation, nor dispose of the merits of the case. Neither did it put either party out of court on a claim or defense going to the merits of the case.

These conclusions do not end the inquiry, however. Importantly, our courts have adopted and followed an exception to the final judgment rule carved out by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Fried v. Fried, supra, 509 Pa. at 94, 501 A.2d at 214; Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545; Praisner v. Stocker, supra, 313 Pa.Super. at 342, 459 A.2d at 1260-1261.

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545, citing Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. at 546, 59 S.Ct. at 1226. To qualify under the Cohen exception all three factors must be met. Fried v. Fried, supra, 509 Pa. at 95, 501 A.2d at 214.

The trial court’s order in the instant case is separable from and collateral to the main cause of action. The order disposed of whether or not a purported settlement agreement should be enforced, a matter separable from the merits of appellant’s claim in assumpsit. Moreover, the order involves a right too important to be denied review, i.e., the right to enforce a settlement agreement and thereby avoid further litigation. Finally, the question presented is such that, in my opinion, the claimed right will be irreparably lost if review is postponed until final judgment in this matter. If we deny review at this time, appellant must litigate a claim which he contends has been settled. Appellant, as a result, may lose any right he has to avoid the time, expense and other burdens incidental to litigation, by requiring his adversary to abide by an allegedly binding settlement agreement. I am cognizant of the goal of eliminating “piecemeal determinations and the consequent protraction of litigation.” Pugar v. Greco, supra, 483 Pa. at 75, 394 A.2d at 545-546, quoting McGee v. Singley, 382 Pa. 18, 22, 114 A.2d 141, 143 (1955). In this case, however, litigation may be avoided entirely if we allow review at this time rather than requiring appellant to wait until final judgment. Furthermore, such a decision comports with “a strong judicial policy in favor of parties voluntarily settling lawsuits.” Rothman v. Fillette, 503 Pa. 259, 266, 469 A.2d 543, 546 (1983).

Voluntary settlement of civil controversies is in high judicial favor. Judges and lawyers alike strive assiduously to promote amicable adjustments of matters in dispute, as for the most wholesome of reasons they certainly should. When the effort is successful, the parties avoid the expense and delay incidental to litigation of the issues; the court is spared the burdens of a trial and the preparation and proceedings that must forerun it.

Id., 503 Pa. at 267, 469 A.2d at 546, quoting Autera v. Robinson, 419 F.2d 1197, 1199 (U.S.App.D.C.1969). See also Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). Because I have found that the three factors under the Cohen exception have been met, the trial court’s order denying enforcement of the purported settlement agreement is appealable at this time.

Before turning to the merits of this appeal, I believe a review of the facts and procedural history is necessary.

On September 19, 1985, appellant, National Recovery Systems, filed an action in assumpsit to recover $18,000 which appellee, Allen Perlman, had allegedly borrowed and failed to repay. Appellee filed preliminary objections which were argued and subsequently denied. Thereafter, on December 26, 1985, appellee filed an answer and new matter to appellant’s action. The case was then scheduled to be heard by an arbitration panel on May 21, 1986.

Prior to the hearing date, however, the parties exchanged correspondence regarding settlement. By letter dated April 4, 1986, appellee’s counsel wrote to appellant’s counsel as follows:

After discussions with my client, I am authorized to offer the sum of $9,000.00 in full and final settlement of the above-captioned matter. Payment will be made to you within ten days after I receive notice of your acceptance of this offer. I await your advice.

Appellant’s motion to enforce settlement, Exhibit A. By letter dated April 10, 1986, appellant’s counsel responded as follows:

This will confirm my telephone conversation with you yesterday wherein I advised that my client had accepted the offer of $9,000.00 in full and final settlement.
In accordance with our agreement I look forward to receipt of your check within ten days, together with executed copies of the forms. Upon receipt of your check or when your client’s check clears I will provide an Order to make the case settled, discontinued and ended.

Appellant’s motion to enforce settlement, Exhibit B.

Subsequently, on May 9, 1986, appellant filed a motion to enforce the settlement agreement allegedly contained in the foregoing letters. On the same date, appellant filed a rule to show cause why the motion should not be granted. Appellee answered the motion and rule on May 27, 1986, admitting the exchange of the above letters but at the same time denying that the case was settled “since the acceptance of the offer to settle was not in accordance with the terms of the original offer and, indeed, the acceptance of said offer placed an additional condition of ten days payment upon which the Defendant did not agree to nor did Defendant make.” Appellee’s answer to motion and rule, paragraph 14.

Following argument, the Honorable David E. Mellenberg, by an order dated October 10, 1986, denied appellant’s motion. Judge Mellenberg indicated that appellant, by listing the matter for argument rather than following the procedures outlined in Pa.R.C.P. 209, had admitted appellee’s allegation that the purported acceptance by appellant included the additional condition of payment within ten days after acceptance. That being the case, the judge found that the alleged acceptance was actually a counteroffer, and concluded that consequently, there was no enforceable settlement agreement. Appellant filed a timely appeal which appellee subsequently moved to quash as being interlocutory in nature.

The trial court denied appellant’s motion to enforce the alleged settlement based upon appellant’s failure to comply with the procedures of Pa.R.C.P. 209. Under that rule, when a petitioner orders the cause for argument on the petition and answer without first taking depositions on any disputed fact issues, factual averments responsive to the petition and properly pleaded in the answer are to be taken as true against the petitioner. Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa.Super. 526, 531, 456 A.2d 1060, 1063 (1983); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 137, 403 A.2d 577, 580 (1979). Noting that appellant listed the matter for argument without taking depositions, the trial court ruled that it would take as true appellee’s allegations that the purported acceptance of appellee’s settlement offer included the additional condition of payment within ten days after acceptance. Finding that this additional term was material to the agreement, the trial court concluded that appellant’s reply was merely a counteroffer and that, therefore, there was no agreement to enforce.

Appellant contends that it was not required to take depositions in this matter in view of admissions contained in appellee’s answer to appellant’s motion. Specifically, appellee admitted that his counsel made an offer of settlement by the letter dated April 4, 1986, and that his counsel received the April 9, 1986, letter from appellant’s counsel purporting to accept that offer. Appellee’s offer, appellant notes, states that payment would be made within ten days after appellee’s counsel received notice of acceptance of the offer. Accordingly, argues appellant, the ten-day requirement was not a term which appellant added, but was part of appellee’s offer. Moreover, the letters attached to the petition and admitted by appellee, appellant asserts, speak for themselves, thus alleviating the need for depositions on this question.

After careful consideration, I conclude that the trial court erred in ignoring appellee’s admission regarding the letters discussing settlement. In ruling on appellant’s motion, the trial court relied solely on Rule 209, focusing exclusively on the averments of paragraphs 9 and 14 of appellee’s answer. Although Rule 209 does require that the trial court take as true factual averments properly pleaded in appellee’s answer, the rule does not require that the court close its eyes to appellee’s admissions also contained in that answer. Cf. Pittsburgh National Bank v. Kemilworth Restaurant Co., 202 Pa.Super. 238, 241, 195 A.2d 919, 920 (1963) (“There is nothing in [Rule 209] which precludes the court from accepting facts not in dispute, as admitted by the pleadings.”).

Troublesome in this case is the apparent inconsistency in appellee’s answer. Before the court on the one hand is appellee’s allegation, which must be taken as true under Rule 209, that appellant’s alleged acceptance added the condition of payment within ten days, while on the other is appellee’s admission that his counsel offered the sum of $9,000.00 in full and final settlement by a letter dated April 4, 1986, which letter-offer includes the statement that “[pjayment will be made to you within ten days after I receive notice of your acceptance of this offer.” Nothing in appellee’s answer explains this inconsistency. Appellee having made the foregoing admissions, the trial court, in my opinion, erred in relying exclusively on Rule 209 and appellee’s averment concerning the ten-day requirement in ruling on appellant’s motion to enforce the settlement.

Due to appellee’s inconsistent pleading, factual issues remain unresolved. Consequently, I believe it appropriate to remand the case for depositions and argument on whether the acceptance of appellee’s offer added the requirement of payment within ten days. Taking into consideration appellee’s admission regarding the April 4, 1986 letter, the trial court should make appropriate findings and conclusions and grant or deny appellant’s motion accordingly.

      . In Darabant v. Atwood Home Builders, Inc., 281 Pa.Super. 153, 421 A.2d 1194 (1980), a panel of this Court dismissed an appeal from an order striking a settlement agreement and placing the case on the trial list, holding that such an order was neither a final order from which an appeal can be taken under Pa.R.A.P. 341, nor one of the appealable interlocutory decrees from which an appeal is authorized by Pa.R.A.P. 311. Id., 281 Pa.Super. at 155, 421 A.2d at 1195. The panel did not address, however, whether the order in question was separable from and collateral to the main cause of action and therefore potentially appealable under the Cohen exception. I, consequently, find Darabant distinguishable from the case presently before us.

      . Appellant is the assignee of Caesar’s Palace Hotel of Las Vegas, Nevada. Appellee denies that said sums were a loan, claiming that they were instead monies used to gamble in Las Vegas.