author: WICKERSHAM, Judge:

text:
    482 A.2d 1324
    Rita GUTMAN, Austin Gutman, Renee Robinson & Arthur Robinson, Appellants, v. Ruth RISSINGER.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Oct. 19, 1984.

      Allen L. Feingold, Philadelphia, for appellants.
    Joseph A. Whip, Jr., Norristown, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WICKERSHAM, Judge:

Plaintiffs-appellants Rita and Austin Gutman and Renee and Arthur Robinson appeal from the order of the Court of Common Pleas of Montgomery County granting defendant Ruth Rissinger’s petition to dismiss plaintiffs’ motion for a new trial on damages only. The motion for new trial was dismissed because of plaintiffs’-appellants’ failure to comply with Montgomery County Rule of Civil Procedure 252 in two respects: (1) failure to forward a copy of the motion to the official court reporter; and (2) failure to pay for transcripts within thirty (30) days.

Prior to discussing the issue presented by appellants, we feel compelled to address a procedural issue regarding the timeliness of appellants’ post trial motion. At oral argument before this court, the panel members noted that appellants’ motion for a new trial on damages only was filed thirteen (13) days after the jury verdict. Pa.R.C.P. 227.1(c) provides that post trial motions must be filed within ten (10) days of the jury verdict. Thus, the panel questioned whether any issues were preserved for appellate review given the apparent untimeliness of appellants’ post trial motion. In response to the panel’s question, appellants and appellee submitted post argument memoranda. After reviewing these memoranda, we find that Pa.R.C.P. 227.1 was substantially complied with and that appellee was not prejudiced by the late filing of the motion.

The facts relating to this procedural question are as follows : The jury rendered verdicts in favor of plaintiffs-appellants on March 18, 1982. On Wednesday, March 24, 1982, appellants’ counsel served his post trial motion for new trial on damages only on the trial court judge and appellee’s counsel by first class mail. He sent the original of the motion to the trial court judge; he also sent a copy of the motion to the prothonotary for filing. On Friday, March 26, 1982, the prothonotary’s office returned the copy of the motion to appellants’ counsel, informing him that the original was required for docketing. Appellants’ counsel alleges that he received the time-stamped note from the prothonotary on Tuesday, March 30, 1982. Appellants’ counsel further avers that on the same day, he placed an original signature on the copy of the motion and returned it to the prothonotary’s office, again informing the prothonotary that the original motion had been forwarded directly to the trial judge. The docket entries indicate that the motion was officially docketed on March 31, 1982.

Pa.R.C.P. 227.1(c) provides that post trial motions shall be filed within ten days after the jury verdict. Instantly, appellants’ post trial motion was not docketed until thirteen days after the verdict. It is clear, however, that appellants’ counsel attempted to file the motion on March 24, 1982, only six days after the jury verdict. This attempted filing was invalid because local rules required that the original motion be filed with the prothonotary, whereas appellants’ counsel had provided the prothonotary with a copy of the motion. Upon being informed of the error by the prothonotary’s office, appellants' counsel promptly corrected the mistake and properly filed the motion. While the motion was officially docketed three days late, appellee and the trial court judge were given notice of appellants’ motion well within the prescribed ten day period. Furthermore, appellee has raised no allegations of prejudice caused by the minor delay in docketing the motion. Given the fact that appellants substantially complied with Pa.R.C.P. 227.1(c) by attempting to file their post trial motion within the ten day period and by acting promptly to correct their prior error, and considering that appellee has made no allegations of prejudice, we will address the merits of this appeal. Cf. Stokes v. Thiemann, 296 Pa.Super. 112, 442 A.2d 322 (1982).

Appellants state the sole issue on appeal as follows:

Did the lower court err when it dismissed plaintiffs’ Motion for New Trial since Montgomery County Local Rule of Civil Procedure No. 252 was substantially complied with?

Brief for Appellant at 1.

Montgomery County Local Rule of Civil Procedure No. 252 provides in pertinent part:

All post trial motions ... shall be filed in writing with the Prothonotary within ten (10) days after verdict.... Counsel filing such motions ... shall immediately send copies thereof to the trial Judge or chancellor, the official court reporter and to the court administrator. The official court reporter shall, forthwith, provide counsel with an estimate of the cost of the trial transcript and payment thereof must be made within thirty (30) days by counsel for the moving party or parties. Failure to make payment may be a basis for refusal of the motions ... for lack of a transcript.

The facts relating to this issue may be summarized as follows: On March 18, 1982, a jury rendered a verdict in favor of plaintiffs-appellants Rita Gutman and Renee Robinson in the amount of two hundred dollars ($200.00) for each plaintiff-appellant. Subsequently, appellants’ attorney filed a motion for new trial on damages only, the original of which he forwarded to the trial judge. He also sent a letter, dated March 24, 1982, to the trial judge requesting the transcription of the notes of testimony. Appellants’ counsel did not, however, forward a copy of his motion for new trial to the official court reporter as required by local rule 252, supra. Nevertheless, the court reporter was aware of appellants’ motion, and sent a letter dated March 29,1982 to appellants’ counsel informing him of the estimated cost of the trial transcripts. In a letter dated April 5, 1982, appellants’ counsel requested clarification of the transcript costs from the court reporter. On May 6, 1982, appellants’ counsel forwarded a check in the amount of six hundred dollars ($600.00) to the court reporter for transcription of the notes of testimony.

On May 11, 1982, appellee filed a petition to dismiss appellants’ motion for new trial. In an order dated November 8, 1982, the lower court granted appellee’s petition to dismiss on the ground that appellants had violated local rule 252 in two respects: (1) appellants failed to send a copy of their motion to the court reporter; and (2) appellants failed to pay for the transcripts within thirty (30) days.

We recognize that
procedural rules, either at the state or local level, are absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. Every court has a limited power to make such rules as the interest of justice or the business of the court may require. 42 Pa.C.S. § 323.

Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 355, 476 A.2d 1366, 1369 (1984).

We do not find, nor does appellant contend, that Montgomery County Rule of Civil Procedure No. 252 is in any way infirm. Rather, appellant avers that the lower court improperly interpreted the rule as applied to the facts of the instant case. Our scope of review in such cases is clear: “The application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion.” Id., 328 Pa.Superior Ct. at 355, 476 A.2d at 1369. Thus, our review is limited to considering whether the lower court committed an abuse of discretion in dismissing appellants’ motion for a new trial on damages only pursuant to local rule 252. Since we find that the lower court did abuse its discretion, we will reverse the order of the lower court, reinstate appellants’ motion, and remand for further proceedings.

A minor basis for the dismissal of appellants’ motion was counsel’s failure to forward a copy of the motion to the court reporter. The lower court admits, and the documentary evidence indicates, however, that the court reporter had knowledge of appellants’ motion, and contacted counsel with regard to transcription costs. It is clear that the purpose of the rule requiring that counsel forward a copy of post trial motions to the court reporter is to ensure that the notes of testimony will be transcribed upon receipt of payment. While counsel failed to send a copy of his motion to the court reporter, it is apparent that the purpose of the rule was fulfilled in this case: the court reporter was aware of the pendency of the motion, and counsel was informed of the transcription costs. We find that given these facts, the requirements of the rule were substantially fulfilled and appellants’ motion should not be dismissed on this basis.

The major reason for the lower court’s dismissal of appellants’ motion was counsel’s failure to pay the estimated cost of the trial transcripts within thirty (30) days. The court reporter informed appellants’ counsel of the estimated cost of the transcripts in a letter dated March 29, 1982. Appellant provided the court reporter with a check in the appropriate amount on May 6, 1982. Thus, the payment was made eight days later than required by the rule. Appellants contend that this delay was occasioned by counsel’s attempt to determine whether it was necessary to transcribe the entire trial testimony. (As appellants’ motion for new trial was limited solely to the issue of damages, appellants wanted to find out whether they could request the transcription of only that portion of the testimony relating to the issue of damages.). The lower court held that appellants’ excuse for untimely compliance did “not automatically entitle [them] to a waiver of the local rule.” Lower ct. op. at 3. While we agree that the provision of any excuse will not act as a waiver of the rule, we believe that the lower court abused its discretion in inflicting an unduly harsh punishment on appellants in this case.

First, the rule explicitly states that the failure to make payment, and not the mere untimeliness of payment, may result in the dismissal of post trial motions. Here, it is clear that full payment for the transcripts was made, albeit eight days late.

Second, the language of the rule, i.e., “[f]ailure to make payment may be a basis for refusal of the motions ... for lack of transcript,” indicates that the purpose of the rule is to ensure that the notes of testimony are transcribed. Without a transcript of the trial testimony, the lower court could not properly consider the post trial motions. Instantly, payment was made only eight days later than required by the rule and five days before appellee’s petition to dismiss was filed. There is no indication in the record that oral argument on appellants’ motion had already been scheduled or that the late payment in any other way interfered with the resolution of the case. We see no reason why the transcripts could not have been prepared shortly after payment was received and appellants’ motion argued and resolved in the lower court. The late payment in this case would not seem to deprive the lower court of a meaningful opportunity to assess the merits of appellants’ post trial motion. Cf. Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978). Thus, the basic purpose of local rule 252 could have easily been achieved in this case without resorting to the harsh result of dismissal of appellants’ motion.

Last, it is clear that a rule of court should be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Pa.R.C.P. No. 126.

Instantly, there is no indication that the late payment in any way affected the substantial rights of the parties. Payment was made only eight days late and appellants’ counsel provided a plausible excuse for the delay. Appellee does not aver that she was prejudiced by the late payment. Thus, under a liberal construction, appellants substantially complied with local rule 252. Since the rule was substantially complied with, the dismissal of appellants’ post trial motion was too harsh a “punishment” for their “crime” of untimely payment. See Wills Equipment Co. v. Goldman Enterprises, Inc., 325 Pa.Super. 116, 472 A.2d 674 (1984). Also see Byard F. Brogan, Inc. v. Holmes Electric Protective Co. of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983).

We find that the lower court abused its discretion in dismissing appellants’ motion for a new trial on damages only. Thus, we reverse the order of the lower court, reinstate appellants’ motion, and remand the case to the lower court.

Order reversed. Appellants’ motion for new trial on damages only is reinstated and the case remanded to the lower court for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . These facts are drawn primarily from appellants’ post argument memorandum. We note, however, that in her post argument memorandum, appellee does not disagree with any of the facts set forth by appellants. Further, the documents submitted by appellants’ counsel supports his recitation of the circumstances surrounding the filing of appellants’ post trial motion.

      . The rule does not explicitly state within thirty days of what event the payment must be made. We assume, as did appellants, that the rule provides that payment must be made within thirty days of the date on which the court reporter informs the moving party of the estimated transcription cost.

      . We recognize that this rule concerns construction of the Pennsylvania Rules of Civil Procedure; nevertheless, we find it equally applicable in the interpretation of local court rules. See Byard F. Brogan, Inc. v. Holmes Electric Protective Co. of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    482 A.2d 1329
    COMMONWEALTH of Pennsylvania v. Martin DIGGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed Oct. 19, 1984.

      Gilbert E. Toll, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, BECK, and JOHNSON, JJ.
   BECK, Judge:

This matter is before this Court on appeal from the denial of relief under the Post Conviction Hearing Act (PCHA). In brief, the history of the case is as follows. In October 1975, while incarcerated in a Maryland prison, appellant Martin Diggs filed a request pursuant to Article III of the Interstate Agreement on Detainers, 42 Pa.C.S. § 9101 (hereinafter “Agreement”), for an “immediate and fair trial” on charges outstanding against appellant in Philadelphia. The charges arose out of the gunpoint robbery of a Philadelphia dairy in 1973. Appellant was tried in May 1976 and convicted of six counts of aggravated robbery and one count of burglary. A prison sentence and concurrent probationary terms were imposed. This Court affirmed on direct appeal. Commonwealth v. Diggs, 260 Pa.Super. 349, 394 A.2d 586 (1978). Appellant filed his PCHA petition in 1979; he brings the instant appeal from the court’s November 19, 1982 order denying relief.

Appellant’s contention at this stage of the proceedings is that he was not timely tried pursuant to Article 111(a) of the Agreement. He raises this issue in the context of a claim that post-trial and direct appeal counsel were ineffective for not pursuing the issue (it was last raised by trial counsel in pretrial motions). We affirm the PCHA court’s denial of relief.

It is settled law that counsel will not be found ineffective for failing to assert a baseless claim. Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980). Only if the underlying claim has arguable merit need we inquire further into the reasonableness of counsel’s actions. Commonwealth v. Tate, 299 Pa.Super. 518, 445 A.2d 1250 (1982). We find that the claim that appellant was not timely tried is meritless.

Article 111(a) of the Agreement provides that a prisoner “shall be brought to trial within 180 days” after he files an appropriate request for disposition of the charges which are the subject of an outstanding detainer. This 180-day limit contains an important qualification: “Provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” In the instant case, the request for trial was received on October 14, 1975, making the initial run date April 12, 1976. Trial commenced on May 6, 1976. Several continuances granted upon defense counsel’s request account for the 25-day delay. Appellant contends that these continuances, do not operate to extend the 180-day period because there was no showing of good cause in open court. We disagree.

We note at the outset that as a general matter, the grant or denial of a continuance is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Commonwealth v. Wolfe, 301 Pa.Super. 187, 447 A.2d 305 (1982); Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980).

In the instant case, three continuances were granted. On March 30, 1976, the case was continued to April 5, 1976 on defense counsel’s request for additional time to complete his investigation. This continuance took place in open court with the defendant present. The next day, March 31, 1976, appellant’s counsel appeared before the calendar judge and received a further continuance to May 3, 1976 “for defense preparation.” There are no stenographic notes in the record of the March 31 proceedings and appellant apparently was not present. However, the calendar judge held a further hearing on April 6, 1976, in the presence of both appellant and his counsel, at which the judge alluded to the March 31 proceedings and asked appellant if he had any objections to the continuance to May 3, 1976. Appellant did not object. The third and final continuance was a three-day extension granted on May 3, 1976 on the ground that appellant’s counsel was unavailable until the later part of the week. Appellant does not question the propriety of this final continuance and we shall not discuss it further.

The first two continuances were properly granted. We have previously held that a request by defense counsel for a continuance to complete his preparation was a “reasonable” continuance granted “for good cause shown,” and that such continuance tolled the running of the 180-day period under the Agreement. Commonwealth v. Scott, 219 Pa.Super. 470, 281 A.2d 754 (1971); see also Commonwealth v. Blackburn, 328 Pa.Super. 483, 477 A.2d 548 (1984) (applying Scott in a case arising under the 120-day time limitation contained in Article IV(c) of the Agreement); Commonwealth v. Wilson, 231 Pa.Super. 451, 331 A.2d 792 (1974) (defendant will not be dismissed under the 180-day rule of the Agreement if delay is attributable to him).

Appellant argues that his counsel’s neglect in failing to be prepared within 180 days should not be attributed to him, and that he is therefore entitled to discharge. This argument overlooks the fact that under the Agreement, continuances may be granted “for good cause shown in open court, the prisoner or his counsel being present.” 42 Pa.C.S. § 9101, Article 111(a) (emphasis added). The disjunctive “or” clearly indicates that the defendant need not expressly join in his counsel’s request for a continuance. Moreover, in the instant case the defendant appeared at two hearings on the continuances and voiced no objection at either proceeding. In fact, at the March 30 hearing the judge and the Commonwealth’s attorney indicated by their questions and remarks that they were inclined against granting the continuance, whereupon appellant stated that he felt that it would be an “injustice” for him to proceed with unprepared counsel. The court then granted the continuance, saying “Mr. Diggs has a point.” N.T. 3/30/76 at 10.

Finally, accepting appellant’s position that continuances occasioned by a neglectful defense counsel’s request for more preparation time are not “attributable” to the defendant for purposes of tolling the 180-day rule would impose a dilemma on the trial courts. If the court must discharge a defendant upon the expiration of 180 days, even though the case has not been tried solely due to defense counsel’s unpreparedness, counsel could secure his client’s discharge by mere laxity. On the other hand, forcing a defendant to proceed to trial with admittedly unprepared counsel runs the risk of depriving the defendant of a fair trial. We decline appellant’s invitation to place the courts in such an untenable position.

Appellant also argues that the second continuance was improperly granted because he was not present and the proceeding was not “in open court.” We agree with the Commonwealth (see Commonwealth’s Brief at 6) that the mere fact that the court clerk’s and stenographer’s names were omitted from the record does not warrant the conclusion that the March 31, 1976 proceeding was not in open court. The record does indicate that the matter was heard in Courtroom 625, as were other matters coming before the calendar judge, which lends support to an inference that the hearing was held in open court in conventional fashion. We further note that the clerk’s and stenographer’s names are also missing from the record of the April 5, 1976 hearing, which was undeniably in open court. We are therefore reluctant to find this minor clerical omission dispositive. Finally, the PCHA hearing judge found as a fact that the March 31 proceeding was in open court. Lower Court Opinion at 5. The findings of the PCHA hearing court should not be disturbed if they are supported by the record. Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982). We hold that the record supports a finding that the March 31 hearing took place in open court.

As noted above, the Agreement provides that the presence of either the defendant or his counsel is sufficient. Therefore, the fact that appellant was not present on March 30 does not render the continuance invalid. Finally, the court did hold a hearing on April 6, 1976, with appellant present, at which appellant did not object to the continuance his counsel had requested. This hearing is best described as a reconsideration of the March 31, 1976 continuance order. Contrary to appellant’s suggestions, we find nothing improper in the court’s April 6 action.

Appellant contends that the Agreement, being remedial legislation, should be construed liberally in favor of the prisoner. See, e.g., Commonwealth v. Wilson. While we agree with this statement as a principle of law, we do not believe that the lower court’s actions or our holding violate the principle. We cannot say that the court was not acting in appellant’s best interests when it granted reasonable continuances to enable appellant and his counsel to prepare a defense. The continuances were brief; appellant’s trial took place less than a month after the expiration of the 180-day period. The court complied fully with the terms of the Agreement and acted within its general discretion in handling requests for continuances. Consequently, post-trial and direct appeal counsel were not ineffective for failing to assert this meritless claim.

Order affirmed.

      . Appellant was originally arrested on these charges in Í973, but he fled before trial.

      . The record does not indicate whether appellant was present. Appellant states in his brief that he was not present and the Commonwealth's brief does not contest this.

      . Appellant’s reliance on Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977), is misplaced. In Gregg, the Supreme Court simply held that the court’s failure to schedule an initial trial date before the expiration of the Agreement’s time limit, however motivated, would not be deemed a defense-requested “continuance," extending the time limit, where there was no actual request by either side for a continuance. In the instant case, a trial date had been set within 180 days and defense counsel had clearly requested continuances.


author: MONTGOMERY, Judge:

text:
    482 A.2d 1332
    Charles GIBSON, Sr., Mary Louise Gibson, Charles Gibson, Jr., Frank Gibson and Deborah Gibson Regan, v. William G. BOTTI and Ronald W. Dececco, individually and t/b/d/a Servicemaster of Greater Pittsburgh and Servicemaster of Three Rivers, Inc., a Pennsylvania corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed Oct. 19, 1984.

      Lee V. Price, Pittsburgh, for appellants.
    C. Donald Gates, Jr., and Elaine V. Preston, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The parties herein entered into an agreement whereby plaintiffs-appellees sold their stock in Service Master of Three Rivers, Inc. to defendants-appellants. The agreement provided, inter alia, that appellants would pay appellees ten percent of the monthly gross receipts of the business for cleaning, painting and deodorizing services.

As a result of a dispute between the parties regarding whether appellants actually paid appellees the full ten percent, appellees filed a complaint in equity seeking an accounting and a judgment against appellants for the ten percent of the gross revenues still due and owing. Subsequent to the filing of other pleadings, appellees filed a discovery motion seeking inspection of financial records of the corporation and individual appellants. Relying upon Jones v. New Pittsburgh Courier Publishing Company, 130 P.L.J. 36, 24 D & C3d 331 (1981), the trial court granted the motion, limiting discovery to matters relating to the receipt of funds by appellants in their business activities.

Appellants then petitioned the trial court to amend its order granting appellees’ discovery motion to include a statement of certification for appeal by permission to this court. The Honorable R. Stanton Wettick entered an order denying the motion and appellant directly petitioned this court for review of both of the aforementioned orders. After consideration, the Honorable James E. Rowley granted the petition for review, transferred the petition to No. 483 Pittsburgh 1982, and gave a briefing schedule. This panel heard the matter and entered a per curiam order denying the petition for review noting that a direct appeal had been quashed sua sponte. Appellants then filed an application for reargument. Having been apprised of the complete procedural history of the case, this panel granted reconsideration sua sponte. Hence, the matter is before us for review of the merits of the novel question raised.

Appellants contend that the trial court improperly granted appellees’ motion for production of documents for inspection. They argue that the ordered discovery gave appellees the relief sought prior to establishing their entitlement to an accounting and is contrary to Pa.R.C.P. 1530.

An action for an accounting pursuant to Pa.R.C.P. 1530 required two distinct steps under prior practice: (1) trial on the duty to account; and, (2) if an accounting was warranted, a subsequent proceeding on the accounting to determine the amount due the injured party. Although this procedure is still viable, the court sitting in equity may opt to telescope the process into one step, placing the choice between the two procedures within its discretion. Pa.R. C.P. 1530(b); Damirgian v. Damirgian, 262 Pa.Super. 463, 470, 396 A.2d 1263, 1267 (1978). An examination of a court’s procedural choice must, therefore, be conducted within the ambit of an abuse of discretion standard.

The trial court herein found that the ultimate objective of the action was the award of damages based upon a contract provision, and the purpose of the accounting was to determine the amount of damages due, if any. As a result, he deemed it proper to permit discovery of business records relevant to the damages issue prior to a hearing on the duty to account, citing Jones v. New Pittsburgh Courier Publishing Company, supra. We have no difficulty with the trial court’s preliminary determination regarding the ultimate objective of the instant action; but, we do not concur with his implied finding that use of the telescoped procedure and accompanying discovery of business records are automatically permissible.

This court in Damirgian v. Damirgian, supra, agreed with that trial court’s decision to utilize the telescoped procedure since the trial on the right to an accounting evinced “that the party awarded the accounting [was] entitled to a sum certain”, thereby obviating the need to hold a second hearing at a later time. Id., 262 Pa.Superior Ct. at 472, 396 A.2d at 1268. The excerpted language implies that the availability of alternative procedural postures under Rule 1530(b) does not necessarily mean that a court in equity should be permitted to arbitrarily choose between them. Instead, circumstances must be such that the judicially expeditious alternative, when chosen, works no substantial harm to the parties in accordance with our interpretation of Damirgian.

In the instant matter, there is no dispute as to the terms of the agreement which provide for payment to appellees of a percentage of certain gross revenues of appellant corporation. The point of contention is whether appellants paid the proper amount and provided appellants with accurate information about that amount and sources of those revenues. When the scenario herein is compared with the common pleas court cases relied upon by the parties, it becomes clear why the grant of the discovery motion in preparation for a telescoped procedure under Rule 1530(b) was appropriate.

Appellants rely upon Frank v. Light Coach Company, Inc., 72 D & C2d 122 (Lebanon Co., 1976) and Simon v. Simon, 4 D & C3d 176 (Philadelphia Co., 1978) for the proposition that discovery, in effect, grants a partial accounting prior to adjudication of entitlement to an accounting. Appellees and the trial court rely upon language found in Jones v. New Pittsburgh Courier Publishing Company, supra, which is explicated above.

The cases of Frank and Simon are readily distinguishable from that of Jones. The request for an accounting in Simon rested upon whether a conveyance of real property was found to be fraudulent, and the request in Frank depended on whether the court determined that a partnership did in fact exist. The accounting sought in Jones, however, was premised upon undisputed terms of an agreement between the parties, resulting in entitlement to an accounting unless the claim was barred by the pleaded defenses of laches, clean hands or estoppel. Jones v. New Pittsburgh Courier Publishing Company, supra at 36, 24 D & C3d at 332, citing Setlock v. Sutila, 444 Pa. 552, 282 A.2d 380 (1971) and Stuyvesant Insurance Co. v. Keystate Insurance Agency, Inc., 420 Pa. 578, 218 A.2d 294 (1966). The substantive differences between the two types of cases is obvious and facilitates a clearer understanding of when and why a telescoped procedure may be utilized by the court.

We endorse the utilization of this procedure under circumstances such as those present in Jones and the instant matter where it is undisputed that the complaining party is entitled to some percentage or other “sum certain”. Cf., Damirgian v. Damirgian, supra. Situations similar to those found in Simon and Frank, however, do not readily lend themselves to employment of the telescoped procedure since an initial determination must be made regarding the existence or nonexistence of an underlying premise which would entitle the complaining party to an accounting.

It necessarily follows that if the court in equity elects to use the telescoped procedural alternative and immediately move to the question of the amount due, if any, once a duty to account has been officially established, the pretrial rules of discovery are applicable. As Pa.R.C.P. 4003.1 permits discovery of any nonprivileged matter relevant to the subject matter involved in a pending action, the court may grant appropriate discovery prior to establishing a duty to account when the proceedings will be telescoped. We find that the court in equity herein properly availed itself of the telescoped procedural alternative and did not abuse its discretion in granting, with certain limitations, the motion to produce documents for inspection.

Order affirmed.

      . Appellants had filed a direct appeal from the order granting appellees' discovery motion which was docketed at this number. Judge Rowley quashed that interlocutory appeal sua sponte when he granted the petition for review.


text:
    482 A.2d 1335
    Herman SNYDER, t/d/b/a Herman Snyder Construction Company, v. Melvina GOLDEN and Stephinia Wells, In her own Right, and as Heir of the Estate of John Wells, Deceased, Appellants.
    Superior Court of Pennsylvania.
    Argued June 19, 1984.
    Filed Oct. 19, 1984.

      James S. Ehrman, Pittsburgh, for appellants.
    Seymour A. Sikov, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal by the Defendant-Appellant arises following the entry of a judgment by the lower court en banc, which dismissed all exceptions filed by the Appellant after a non-jury verdict for the Plaintiff-Appellee. We can discern no error by the lower court in the dismissal of the exceptions filed by the Appellant.

The Appellee, a general contractor, filed this mechanic’s lien action against the Appellant, seeking a recovery for renovation work completed at Appellant’s premises. The record shows that on or about March 17, 1980, the Appellee entered into an agreement to perform construction work necessary to restore the Appellant’s property to a habitable condition after a fire. The Appellant claimed that the Appellee promised to restore the property for a price not to exceed $25,000.00. The Appellee denied that such a maximum was agreed to, and contended that because of difficulty in determining the extent of work to be done, the contract price was to be determined upon the completion of the work. No written contract existed between the parties covering the work in issue. The parties agreed that the Appellant had paid a total of $29,000.00 to the Appellee during the course of the construction. The issue of the amount of the balance due, if any, was the primary issue to be resolved in the case.

The lower court determined that the Appellee was entitled to recover the amount of $27,024.00 plus interest. The Appellant raises five contentions of error, which except as otherwise discussed herein, were properly preserved for appellate review by timely objections and written exceptions in the lower court.

First, the Appellant argues that the lower court erred in finding that an implied contract existed between the parties. The Appellant contends that the terms of discussions between the parties that the building would be restored “to a habitable condition” were too indefinite for the lower court to determine that any implied contract existed. The lower court concluded that despite the fact that some terms were not definite, the parties understood that a significant amount of work was to be done, and that it would be difficult to determine the exact amount to be paid for the work until after it was completed because the fire damage was so extensive. The trial judge determined that the Appellant had agreed to pay for the various extra parts of the project which the Appellee indicated had been the subject of agreement between the parties. It is apparent that the lower court was not convinced that the Appellee agreed to limit the total price for the project to $25,-000.00. There was abundant evidence in the record, in the form of testimony and documentary evidence, to support the trial judge’s findings in those regards. The trial judge, in his opinion, stated that he credited the testimony of the Plaintiff and his witnesses, who testified that a contract for the work existed between the parties. It is well-established that a trial judge’s findings, in a non-jury case, have the force and affect of a jury’s verdict, and will not be disturbed if supported by sufficient evidence. Bigham v. Wenschorf, 295 Pa.Super. 146, 441 A.2d 391 (1982). We therefore reject the Appellant’s initial claim of error.

We next address the Appellant’s argument that the lower court erred in computing the amount to be awarded to the Appellee. The Appellant contends that the court relied too heavily in its computations upon a document allegedly listing the work to be performed and the changes for the work. The document had been prepared by an architectural firm following discussions between the Plaintiff, the Defendant’s representative, and a representative of an insurance company which insured the Appellant’s structure against fire losses. The Appellant also maintains that many of the items of work listed on the document in question were either not completed or only partially completed by the Appellee. In support of this position, the Appellant recites the testimony offered by her witnesses, and argues that they were more believable than the Appellee’s witnesses. We will certainly not overrule the credibility determinations made by the lower court judge, who had an opportunity to see and hear the various witnesses, and to assess their truthfulness and reliability. The lower court opinion shows that the trial judge considered the arguments raised by the Appellant, and gave some credit to the Appellant in its award for work which was found to have been incomplete or undone. In doing so, the court considered not only the exhibit in question, but other evidence as well. Moreover, the court specifically found that while some minor problems merited credits to the Appellant, the Appellee had substantially completed all of the work covered by the implied contract to restore the premises to a habitable condition. We have carefully reviewed the record and find that it contains substantial evidence supporting the lower court’s computations leading to the amount of the verdict rendered. Accordingly, we reject the Appellant’s second claim of error.

As noted earlier, the Appellant maintains that the lower court erred in allowing the introduction into evidence of the document listing the various items of work to be performed and the change for each item. This issue has not been properly preserved for appellate review. After the Plaintiff-Appellee testified to establish a foundation for the introduction of the document, it was offered as Plaintiff’s Exhibit A by his counsel. The trial judge requested the position of the defense. The Appellant’s counsel stated that he was confused by the witness’ testimony, but never voiced any objection to the admission of the document. Accordingly, we must consider the issue of the admissibility of the document to have been waived. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

The Appellant’s next argument is that the lower court erred in refusing to permit an expert witness to testify for the Appellant concerning his observations of the building in which the work in question was performed. The record shows that the lower court permitted the witness to testify only to those matters which were within the parameters of what had previously been disclosed to the Plaintiff prior to trial, in Defendant’s pre-trial statement. In doing so, the court relied upon Allegheny County Local Rule of Civil Procedure 212 VI C(d), which required the Defendant to provide the reports of any expert whose opinion would be offered in evidence at the time of trial. The report is required by the Rule to include the findings and conclusions of the expert. The lower court clearly only precluded the witness from testifying to matters which were not covered in the report provided to Plaintiff’s counsel prior to trial. We note that Plaintiff’s counsel claimed surprise as to those subjects which had not been covered in the expert’s pre-trial statement. We do not find that the lower court committed reversible error in this ruling. Such pretrial rules cannot be ignored. Compare Gill v. McGraw Electric Company, 264 Pa.Super. 368, 399 A.2d 1095 (1978). We do not perceive this to be a situation like that presented in Piekarski v. Club Overlook Estates, Inc., 281 Pa.Super. 162, 421 A.2d 1198 (1980), where there was evidence that opposing counsel was aware of the additional matters about which the expert planned to testify, and was prepared to examine him concerning the subject. Therefore, we find no abuse of the wide discretion afforded a trial judge in our Commonwealth in determining the scope of testimony to be admitted from an expert witness. See Flavin v. Aldrich, 213 Pa.Super. 420, 250 A.2d 185 (1968).

The final claim of the Appellant is that the lower court erred in permitting the testimony of a witness for the Appellee, an insurance company claims adjuster, who had visited the Defendant’s property after the fire loss to evaluate it for the insurer. The Appellant claimed the testimony in issue was irrelevant to the issues in dispute. The record shows that when the witness was called in rebuttal by the Appellee, counsel for the Appellant demanded an offer of proof as to his testimony. When the offer was made, defense counsel objected to his testimony on grounds other than relevancy. Such objections were properly overruled by the lower court. Thereafter, during questioning of the witness by Appellee’s counsel, defense counsel objected to only two specific questions on grounds of relevancy, while objecting to several other questions on other grounds. The particular questions to which relevancy objections were raised were clearly inconsequential in the case. On the basis of this record, we must hold that the Appellant has failed to properly preserve for appellate review the issue of relevancy as to the totality of the testimony of the witness. In the absence of a proper and timely objection at trial, appellate consideration of such an issue is not appropriate. Thus, we must reject the Appellant’s final claim of error.

Affirmed.

      . At the conclusion of the case, non-suits were entered against the Defendants Stephinia Wells and the Estate of John Wells, without objection from the Plaintiff, or from Melvina Golden, the only Defendant against whom the verdict was entered. The Notice of Appeal filed in our Court indicates an appeal by all of the named Defendants, but it is clear that Melvina Golden is the only Defendant with any interest in the appeal. Hence, we will refer to her as the Appellant, in singular form, throughout this Opinion.

      . The issue of the admission of that document into evidence is discussed in the next paragraph of this Opinion.


author: HESTER, Judge:

text:
    482 A.2d 1339
    COMMONWEALTH of Pennsylvania v. George WEST, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1984.
    Filed Oct. 19, 1984.

      Timothy O. Nolen, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   HESTER, Judge:

On April 11, 1979, following a trial by jury, appellant was convicted of criminal attempt, aggravated assault, recklessly endangering another person, possession of an instrument of crime, violation of the Pennsylvania Uniform Firearms Act, and criminal conspiracy. Timely post trial motions were filed and denied. On July 10, 1979, appellant was sentenced to a term of incarceration of not less than five nor more than ten years on the charge of criminal attempt. As to the other charges, appellant was placed on a combined probationary term of five years, to run consecutively to the criminal attempt sentence.

Appellant then filed a direct appeal to this Court solely alleging that the Commonwealth failed to bring him to trial within 180 days as required by Pa.R.Crim.P. 1100. We denied appellant’s contention and affirmed the trial court’s judgment of sentence. Commonwealth v. West, 287 Pa.Super. 587, 428 A.2d 250 (1980).

Appellant’s counsel received notification of our decision on June 23, 1980, but neglected to forward such notice to appellant until July 18, 1980. Appellant received actual notice on July 21 or July 22, 1980.

Appellant thereafter filed a Petition for Allocatur Nunc Pro Tunc with the Supreme Court of Pennsylvania. That Court denied his petition without indicating whether the denial was the result of untimeliness or whether it was based on the merits.

On October 27, 1981, appellant petitioned the Court of Common Pleas of Montgomery County for relief pursuant to the Post Conviction Hearing Act (hereinafter P.C.H.A.). Appellant alleged a violation of Rule 1100, that he was prejudiced when seen in handcuffs by jurors, and that counsel was ineffective for failing to timely notify him of his right to petition for review to the Supreme Court. The lower court dismissed appellant's P.C.H.A. petition. It is from this Order that appellant now appeals.

The Rule 1100 issue, though argued at the P.C. H. A. hearing, is not before us since it was not briefed or argued on appeal. It is accordingly waived. See Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979), cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). Appellant’s next contention, that he was prejudiced when seen in handcuffs by jurors, has taken the form of two separate issues for this appeal. The first is that the trial court erred in refusing to grant a mistrial and the second is that trial counsel was ineffective for failing to ask the trial court, for a cautionary instruction. These issues were adequately resolved by the opinion of the trial court. We therefore summarily dismiss them.

Prior to addressing whether counsel was ineffective for failing to timely notify appellant of his right to petition for allocatur, appellant’s final P.C.H.A. allegation, we address appellant’s assignment of error that prior counsel were ineffective for failing to raise the issue that the Commonwealth did not prove the barrel length of the weapon as required for convictions under § 6105 and § 6106 of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6101.

A “firearm” under the Uniform Firearms Act is defined as “[a]ny pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.” 18 Pa.C.S.A. Section 6102.

For there to be ineffective assistance of counsel, the course chosen must have had no reasonable basis to effectuate the client’s interest. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

This Court has addressed the issue of whether a conviction could stand under § 6105 in view of the Commonwealth’s failure to prove the barrel length of the weapon:

[the weapon] was never produced or entered into evidence by the Commonwealth. Nor was its length ever described... In other words, the length of the weapon’s barrel ... represents an indispensable element of the charged offense without proof of which a conviction may not be sustained.

Commonwealth v. Rapp, 253 Pa.Super. 31, 33, 384 A.2d 961, 962 (1978). Our Supreme Court similarly held:

Penal statutes must be strictly construed. 1 Pa.C.S.A. § 1928(b)(1) (Supp.1977-78). Thus we must conclude that barrel length is an essential element of the offenses defined in sections 6105 and 6106, and it is fundamental that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt.

Commonwealth v. Todd, 477 Pa. 529, 533, 384 A.2d 1215, 1217 (1978). Appellant therein was accordingly discharged from the conviction for the firearm violation.

In Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981), we held that failure of the prosecution to establish the barrel length of a weapon through actual measurement did not render trial counsel ineffective. However, the weapon therein was admitted into evidence allowing the jury to examine it. In such instances, it is reasonable to conclude that the fact finder will determine the barrel length when permitted to examine the weapon.

The case presently before us does not fall within the purview of Jennings. Here the weapon was not present at trial, and in fact was never recovered. The only reference to it was made by a witness who described it as a “toy.” Such testimony does not constitute sufficient evidence to conclude that the Commonwealth met its burden of proof as to the firearm violations.

In light of the requirements enunciated in Rapp and Todd, supra, we turn to whether counsel was ineffective for failing to raise this defect. In the instant case, trial counsel did make a general demurrer to all charges. However, counsel did not specifically argue that the prosecution had failed to prove every essential element for a conviction under the Firearms Act. Furthermore, trial counsel did not allege error by the trial judge for failing to grant the demurrer to the firearm violations in the post-trial motions. Thus, this issue was waived. Failure to bring that issue before the post-verdict or appellate courts cannot be said to have had any reasonable basis designed to effectuate appellant’s interests.

Since the claim of ineffective assistance of counsel is apparent from the record, we need not remand for an evidentiary hearing. On occasion, it is appropriate to determine ineffectiveness through an independent review of the record. See Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978). Herein it is clear trial counsel was ineffective in failing to pursue or properly preserve this issue for appeal. Appellant’s counsel for the P.C.H.A. hearing was also ineffective for failing to allege the ineffectiveness of trial counsel at the P.C.H.A. hearing. See Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979).

All prior counsel were ineffective for failing to expose an essential missing element in the Commonwealth’s prosecution for violations of the Uniform Firearms Act. Accordingly, we reverse appellant’s conviction and vacate the judgment of sentence as to the firearm charges.

Appellant also alleges ineffectiveness for counsel’s failure to timely notify him of his right to petition for allowance of appeal. Pennsylvania Rule of Appellate Procedure 1113 provides a thirty-day period from the entry of the order of the Superior Court during which to file a petition for allowance of appeal to the Pennsylvania Supreme Court.

At the PCHA hearing, counsel conceded that our decision of June 23, 1980 was not forwarded to appellant until July 18, 1980, and not received by him until approximately July 22, 1980. Thus, the period within which to file a petition for allowance of appeal had expired prior to the receipt by appellant of actual notice. Appellant argues that this course of conduct by counsel failed to promote his interests and constituted ineffective assistance of counsel.

A similar allegation of ineffectiveness was recently addressed by this Court in Commonwealth v. Morrow, 326 Pa.Super. 443, 474 A.2d 322 (1984). Therein, appellant’s original P.C.H.A. counsel failed to inform him of his right to petition for allocatur. In his second P.C.H.A. petition, he argued that this omission constituted ineffective assistance of counsel. The Morrow court observed that “our appellate courts have never held counsel ineffective per se for failing to file a petition for allocatur,” Id., 326 Pa.Superior Ct. at 446, 474 A.2d at 324, and rejected appellant’s allegation of ineffectiveness. In so doing, it noted that appellant never alleged unawareness of his right to seek allocatur, a desire for counsel to petition for review, or that he directed counsel to do so. The court also relied upon appellant’s extensive exposure to the judicial system in its determination that counsel was not ineffective for failing to inform appellant of his right to file a petition for allocatur.

Applying these guidelines to the case sub judice, we are constrained to hold contrary to Morrow. At the P.C.H.A. hearing, appellant testified that, although he knew he could pursue an appeal, he “didn’t know any time or that sort of thing.” Appellant clearly desired to petition for allocatur, as can be seen by his subsequent pro se attempt to do so. More importantly, counsel advanced no explanation as to the delay between his receipt of our decision and notification of appellant. We cannot permit appellant’s right to be disregarded by counsel.

In his letter of July 18, 1980, counsel informed appellant that the Public Defender’s Office had determined that any further appeal possessed no arguable merit and that appellant was not entitled to further representation. This denial of representation contravenes Pa.R.Crim.P. 316(c)(iii) which states:

Where counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings upon direct appeal.

The Supreme Court of Pennsylvania has long interpreted this rule to require assistance of counsel to those seeking allowance of appeal. See Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980); Commonwealth v. Hickox, 433 Pa. 144, 249 A.2d 777 (1969).

This Court followed our Supreme Court in Commonwealth v. Clarke, 300 Pa.Super. 366, 446 A.2d 658 (1982), wherein we found counsel to be ineffective for failing to petition for allowance of appeal to the Supreme Court. Therein, counsel informed appellant of his right to file a petition for allocatur and further advised appellant to contact the public defender’s office should he choose representation. Nevertheless, in spite of timely notice and instructions as to his rights, we ruled that appellant was entitled to representation, regardless of the merit of his petition.

Unlike Clarke, appellant herein received no timely notification of his right to pursue his appeal to the Supreme Court. Moreover, he was informed that he was not entitled to further services of the Public Defender’s Office. This was clearly ineffective assistance of counsel.

In light of our analysis, we reverse the order of the court below. Judgment of sentence as to appellant’s firearm violations is vacated. Appellant is granted leave to file a petition for allocatur nunc pro tunc to the Supreme Court of Pennsylvania. The lower court is directed to appoint counsel to assist appellant in properly filing such petition. The petition shall be filed within 30 days of the appointment of counsel. Case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

Order reversed.

      . The petition was filed pursuant to the Act of January 25, 1966, P.L. 1580, No. 554 (1965), effective March 1, 1966, 19 P.S. § 1180-1, et seq., reenacted by Act of May 13, 1982, P.L. 417, No. 122, § 2, 42 Pa.C.S.A. § 9541 et seq.

      . It should be noted that this issue is raised for the first time. The Public Defender's Office handled the trial and first appeal to our Court. A second counsel was appointed to represent appellant at the P.C.H.A. hearing. This appeal is under the direction of a third counsel. Therefore, since this is the first opportunity for this counsel to raise this claim, it was not waived. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Ashby, 304 Pa.Super. 394, 450 A.2d 738 (1982).

      . Appellant did file a Petition Requesting Allocatur Nunc Pro Tunc to the Supreme Court of Pennsylvania, which was denied on October 28, 1980. Since the Supreme Court did not indicate the basis for its denial of appellant's petition, we are unable to discern whether appellant's petition was considered on the merits.