text:
    534 A.2d 483
    COMMONWEALTH of Pennsylvania, v. Richard PETRAS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1987.
    Filed Nov. 30, 1987.

      James Bacon, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, KELLY and WATKINS, JJ.
   KELLY, Judge:

Following a bench trial, appellant, Richard Petras, was convicted of involuntary deviate sexual intercourse involving oral sodomy on a thirteen year old male. On March 18, 1986, appellant was sentenced to a term of three to six years imprisonment. Appellant-contends in this appeal that trial counsel rendered ineffective assistance thereby denying him a fair trial. We remand for an evidentiary hearing with respect to one of appellant’s allegations of ineffectiveness.

The facts and procedural history of this case are accurately set forth in the opinion of the trial court and will be repeated herein only as necessary for the disposition of the contentions raised by appellant. Appellant contends that, individually and collectively, alleged errors by trial counsel denied him a fair trial. Specifically, appellant contends that his attorney was ineffective in: 1) failing to interview and/or call Edwin C. as a defense witness; 2) failing to impeach the victim with prior inconsistent statements; 3) failing to properly cross-examine the police officers; 4) failing to demand a bill of particulars or to request a continuance; and 5) failing to object to allegedly improper and inflammatory information presented to the sentencing court in the presentence report. We find no merit in appellant’s second, third, fourth, and fifth contentions. With regard to appellant’s first contention, we find we must remand for an evidentiary hearing. We shall discuss each allegation of ineffectiveness seriatim.

The burden of establishing ineffective assistance of counsel rests upon the appellant as counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). “In this Commonwealth we have long used, to gauge ineffectiveness of counsel’s stewardship, the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).” See Commonwealth v. Saxton, 516 Pa. 196, 201, 532 A.2d 352, 354 (1987) (citing cases). In Commonwealth ex rel. Washington v. Maroney, supra, the process of measuring the effectiveness of counsel was described by our Supreme Court as follows:

Our task ... encompasses both an independent review of the record,____and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives____ We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

235 A.2d at 352-53. Our Supreme Court also made clear that, for relief to be granted, the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice:

Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.

235 A.2d at 353 n. 8. (Emphasis added).

Thus, in order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce 515 Pa. 153, 157-158, 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, 516 Pa. 407, 413, 532 A.2d 796, 799 (1987). (“The standard of review is that there must be a reasonable probability that but for counsel’s unprofessional errors, the result of the trial would have been different.”).

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant “must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,” before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

Appellant first contends that trial counsel was ineffective in failing to interview and/or present Edwin C. as a defense witness. To obtain relief on this claim, appellant is required to establish that: 1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. See Commonwealth v. Griffin, 357 Pa.Super. 308, 319, 515 A.2d 1382, 1387-88 (1986); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979). Appellant’s proffer met each of these requirements.

At a hearing on appellant’s post-verdict motions, appellant’s new counsel proffered evidence that Edwin C. could and would have testified at trial that he was in the van with appellant and the alleged victim the one and only time that appellant and the victim were alleged to have been in appellant’s van together, and that no illegal sexual activity occurred on that occasion. (N.T. 3/18/86 at 9-10). Counsel indicated for the record that Edwin C. was present at the hearing. (N.T. 3/18/86 at 11). Appellant’s motion for a new trial was denied on the basis of the proffer without entertaining testimony from Edwin C. (N.T. 3/18/86 at 18).

It is important to note the alleged victim testified at trial that: Edwin C. and his cousin Tito introduced him to appellant (N.T. 9/18/85 at 18); he believed that Edwin C. was in the van at the time of the alleged offense (N.T. 9/18/85 at 22, 26); and he was only in appellant’s van one time (N.T. 9/18/85 at 25, 29). Prior counsel had notice of Edwin .C.’s potential importance as a witness, as the alleged victim had indicated during the preliminary hearing that Edwin C. had introduced him to appellant (N.T. 3/25/85 at 9), and a friend was in the van with him at the time of the alleged offense (N.T. 3/25/85 at 15).

We find that appellant’s proffer presents a claim of arguable merit. Further, we find that no objectively reasonable basis designed to effectuate appellant’s interest appears on the record for failing to interview or present Edwin C. as a witness; and that Edwin C.’s proffered testimony could very likely have affected the outcome of the case as it directly contradicts the victim’s testimony. Consequently, we will remand for an evidentiary hearing on this issue. Commonwealth v. Spotts, supra. Although the Commonwealth argues that counsel declined to call Edwin C. as a witness as a matter of trial tactics, we are not willing to accept this supposition on the present meager record. The Commonwealth may, of course, pursue this theory or any other theory to rebut appellant’s proferred evidence of counsel’s apparent ineffectiveness during proceedings on remand.

Appellant’s second and third contentions regard alleged deficiencies in trial counsel’s cross-examination of the victim and the police officers who testified for the prosecution. The gist of appellant’s argument is that trial counsel failed to make effective use of cross-examination to establish that the prosecution had the victim change his story-regarding the date of the incident (from March 1984 to the summer of 1984) when the Commonwealth belatedly realized that appellant did not own the vehicle in which the incident was alleged to have taken place until the summer of 1984. (Appellant’s Brief at 36-40). We find no merit to these claims of ineffectiveness.

At trial, the victim testified that he was not certain what month the incident took place. (N.T. 3/25/85 at 24). Upon questioning by the trial court, the victim indicated that he thought it was summer. (N.T. 3/25/85 at 26). The prosecutor then asked whether school was still in session; the victim responded that school was finished. (N.T. 3/25/85 at 27) . Prior to cross-examination, appellant’s trial counsel moved to strike the direct testimony based upon its variance from the information filed against appellant which indicated the incident occurred in March of 1984. (N.T. 3/25/85 at 28) . The motion was denied. Although counsel cross-examined the victim regarding various other issues, counsel did not confront the victim with prior inconsistent statements made regarding the date of the incident. (N.T. 3/25/85 at 28-34). However, counsel was permitted to have the victim’s preliminary hearing testimony pertaining to the date of the incident read into the record without objection, as a prior inconsistent statement; the preliminary hearing testimony established that the victim had previously indicated the incident occurred in March of 1984. (N.T. 3/25/85 at 56-60).

During direct examination at trial, Officer Dennis Guzy presented no testimony regarding the victim’s statements concerning the date of the incident. (N.T. 3/25/85 at 37-40). On cross-examination, Officer Guzy testified that his handwritten notes of the initial investigation indicated that the victim had stated that the incident occurred “maybe in June,” but that his partner had made a notation indicating that it might have occurred in March. (N.T. 3/25/85 at 41-42). On redirect, Officer Guzy testified that his brief summary in the typed police report indicated that the incident occurred in March; he explained that the earlier date was probably included as a result of his partner’s notation. (N.T. 3/25/85 at 43).

Officer Guzy’s partner, Officer James McGinnis, testified on direct examination that the March 1984 date included in his note, the formal police report, and later documents represented “the earliest date it could have been,____” (N.T. 3/25/85 at 45). He explained that the victim indicated that he entered Northern Homes in March and that the incident occurred after the victim went to Northern Homes; therefore, despite the victim’s uncertainty as to when the incident occurred, the officers concluded that the incident had to have occurred after the beginning of March of 1984. (N.T. 3/25/85 at 45). Counsel did not cross-examine Officer McGinnis on this issue.

Initially, we note that trial decisions, especially those pertaining to the nature and extent of cross-examination, are matters of style and tactics involving subtle stratagems which ordinarily are within the exclusive province of the trial counsel. See Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983); Commonwealth v. Metzger, 295 Pa.Super. 267, 441 A.2d 1225 (1981). So long as counsel’s tactical decisions may be objectively viewed as having a reasonable basis designed to effectuate the client’s interest, his stewardship cannot be deemed ineffective and the defendant cannot be said to have been denied a fair trial. See Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, supra.

In the instant case, appellant argues that counsel was ineffective because he did not confront the victim with his prior inconsistent statement that the incident occurred in March, and did not demand an accounting for the inconsistency. (Appellant’s Brief at 34). The record reveals that counsel instead chose to impeach the victim, without offering the victim a chance to explain away the conflict, by having the entire prior inconsistent statement admitted into the record by stipulation. This choice of tactics was manifestly reasonable. We note that a similar allegation of ineffectiveness was rejected in Commonwealth v. Clemmons, supra, wherein our Supreme Court stated:

... trial counsel did use the [prior inconsistent] preliminary hearing [testimony] as a means of impeachment. This is a classic hindsight evaluation of the record; that [appellate counsel] would have perhaps impeached the witness in a different way or by a different style does not constitute ineffectiveness of counsel.

479 A.2d at 960. The same conclusion obtains instantly.

Similarly, we find that trial counsel’s decision not to examine the police officers further regarding the discrepancies in the victim’s statements as to when the incident occurred was objectively reasonable. All of the facts necessary to the argument that the prosecution had the victim change his story as to when the incident occurred were on the record; counsel was already free to make that argument at closing. Appellant does not contend that trial counsel failed to reveal specified hidden facts; rather, appellant complains that counsel failed to properly confront the witnesses with known facts already of record. This allegation clearly regards a choice of style and tactics rather than an arguable claim of error by counsel. Indeed, counsel appears merely to have heeded the sage advice of the venerable trial advocate Rufus Choate who warned:

Never cross-examine any more than is absolutely necessary. If you don’t break the witness, he breaks you; for he only repeats over in stronger language to the jury his story. Thus, you only give him a second chance to tell his story to them. And besides by some random question you may draw out something damaging to your own case.

Quoted in Clark, Great Sayings by Great Lawyers, at 156 (1922).

The record of this case clearly demonstrates the wisdom of Mr. Choate’s advice and the reasonableness of counsel’s election to forego further cross-examination of the police officers on this issue. Both officers had clearly diminished the importance of the inconsistencies with plausible expíanations. Clearly, further cross-examination would have risked erosion of counsel’s basis for argument on this issue by providing the officers with an opportunity to elaborate and expand upon the explanations given. Counsel’s decision to forego further confrontation with these witnesses can be objectively viewed as reasonable; hence, the ineffectiveness claims pertaining to cross-examination of the witnesses must fail. Buehl, supra; Maroney, supra.

We also find no merit in appellant’s fourth contention that counsel was ineffective in failing to demand a bill of particulars or request a continuance. Succinctly, appellant has failed to specify how his case would have been improved by the actions. Presumably, the actions would have given counsel more time to prepare, but to prepare what? Because appellant has failed to establish the efficacy of the actions which he suggests counsel should have taken, we find no arguable merit in this claim. Pierce, supra; Buehl, supra. The issue of the victim’s confusion and uncertainty as to the date of the incident was effectively presented to the trial court (N.T. 9/18/85 at 24, 26, 28, 41, 43, 45, 55); appellant’s post-verdict allegation that additional notice and preparation might have resulted in more effective use of these facts is simply too vague and speculative to provide a basis for a finding of ineffectiveness. See Commonwealth v. Pettus, supra.

Finally, we reject appellant’s contention that counsel was ineffective in failing to object to the inclusion in the presentence report submitted to the sentencing court of statements regarding prior incidents of sexual conduct with other male juveniles which did not result in arrests or convictions. First, the statement of the juvenile who introduced the victim to appellant, and appellant’s general admission of prior sexual conduct with some of the boys, were included in the presentence report at the behest of the prosecution only to rebut appellant’s prior statement to the presentence investigator that he never had sex with juveniles. Appellant clearly opened the door for inclusion of such information in the report by his blanket denial of such conduct. Accord Commonwealth v. Trignani, 334 Pa.Super. 526, 541, 483 A.2d 862, 869 (1984). Second, and more importantly, we find that, so long as the sentencing court is aware that no arrest or conviction resulted, such information may properly be considered by a sentencing court even where appellant has not opened the door. “Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized” in determining the appropriate sentence. Commonwealth v. Lupatsky, 341 Pa.Super. 338, 341-42, 491 A.2d 845, 847 (1985); see also Commonwealth v. Darden, 366 Pa.Super. 597, 606, 531 A.2d 1144, 1149 (1987); Commonwealth v. Scheinert, 359 Pa.Super. 423, 431, 519 A.2d 422, 427 (1986) (Kelly, J., concurring; Cavanaugh, J., joins); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). We note that we review here only the appropriateness of considering such information and not the weight to be accorded to it.

CONCLUSION

Based upon the foregoing, the case is remanded to the trial court for an evidentiary hearing upon the issue of whether counsel was ineffective in failing to interview and/or call Edwin C. as a witness. Jurisdiction of this Court is relinquished.

       The test must be objective rather than subjective. If the Court determines that a reasonable basis designed to effectuate the appellant’s interests exists for a particular act or omission, then, regardless of counsel’s purported subjective motivations for the act, appellant can not be said to have been denied a fair trial. The reasonableness of the act or omission precludes a finding of ineffectiveness. Maroney, supra.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    534 A.2d 488
    Frank and Theresa GABRIEL, h/w, Appellants, v. C. Herbert O’HARA, Joseph F.X. Fasey Real Estate and Brian P. Cleere.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Nov. 30, 1987.

      Joseph C. Cascarelli, Philadelphia, for appellants.
    Richard J. Raab, Philadelphia, Pasey Real Estate, appellee.

      Before MONTEMURO, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

At issue in this matter is the appropriate statute of limitations for private actions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Act of December 17,1968, No. 387, as amended 1976, Nov. 24, P.L. 1166, No. 260, § 1, 73 P.S. § 201-1 et seq.

I.

Appellants are individuals and owners of residential property located at 5714 Marshall Street in Philadelphia. The premises were previously owned by appellee. This action arose in connection with the purchase by appellants of the property from appellee.

On or about June 19, 1980, appellants agreed to purchase the premises for the sum of $20,500.00. Appellants subsequently paid the full purchase price and took possession at settlement on August 29, 1980. Shortly after taking possession of the realty, appellants discovered an allegedly substantial defect in the main soil stack pipe from the cellar to the second floor bath of the house and a leak in the rainspout from the front porch of the house into the cellar.

On August 25,1982, appellants filed a complaint alleging, inter alia, causes of action for breach of the implied warranty of merchantability, breach of contract, and fraudulent misrepresentation. The essence of appellants’ assertions were that the existence of the defects constituted a breach of the agreement of sale and that appellee falsely represented the quality of the premises and failed to disclose the existence of the defects. Subsequently, on July 28, 1986, appellants filed a petition for leave to amend their complaint in order to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law. The Court of Common Pleas for Philadelphia County denied appellants’ petition by order of September 15, 1986 on the grounds that the statute of limitations which governs private civil actions under the UTPCPL had run. In its view, appellants’ amended cause of action was barred by Pennsylvania’s two-year limitations period for fraud, rather than the six-year “catchall” limitation period, since it was the closest analogy for appellants’ statutory claims. The timely appeal of this important question followed.

n.

Initially, we must determine whether the order denying amendment of appellants’ complaint is appealable. Pennsylvania Rule of Civil Procedure 1033 provides that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party, or amend his pleading.” Pa.R. C.P. No. 1033, 42 Pa.C.S.A. Although the decision to grant or deny a petition to amend a pleading is a matter of judicial discretion, we have held that “[ajmendments should be allowed with great liberality at any stage of the case unless they violate the law or prejudice the rights of the opposing party.” Gutierrez v. Pennsylvania Gas and Water Co., 352 Pa.Super. 282, 286, 507 A.2d 1230, 1232 (1986) (citations omitted).

In Barr v. General Accident Group Ins. Co., 360 Pa.Super. 334, 520 A.2d 485 (1987), we considered the appealability of an order denying amendment of a complaint:

“In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramification.” Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) citing Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981). “The finality of an order is a conclusion which can be reached only after an examination of its ramifications.” Praisner, supra, 313 Pa.Superior Ct. at 337, 459 A.2d at 1258, citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). When an Order so restricts the pleader as to virtually put him out of court on the cause of action he seeks to litigate, it is a final appealable Order. Trevellini v. West Realty Co., 289 Pa.Super. 84, 432 A.2d 1062 (1981).

Id., 360 Pa.Superior Ct. at 344, 520 A.2d at 490.

In the case sub judice, the denial of appellants’ petition to amend their complaint to include an UTPCPL claim has the effect of putting appellants out of court on a cause of action they seek to litigate. The amendment of appellants’ complaint to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law does plead a new cause of action, but also brings forth a consideration of another statute of limitations in addition to the two-year statute of limitation for common law fraud. Thus, if a six-year statute of limitation is allowable for UTPCPL claims, appellants’ claim for treble damages and reasonable attorney’s fees, although under UTPCPL, would justify an amended complaint pursuant to section 201-9.2(a) of the statute:

Any person who suffers any ascertainable loss of money or property, as a result of the use or employment by any person of a method, act or practice declared unlawful by [this act] may bring a private action to recover actual damages or $100, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than $100, and may provide additional relief as it deems necessary or proper. The court shall award reasonable attorney’s fees to a person who prevails in an action brought pursuant to this subsection.

73 P.S. § 204-9(a) (emphasis added).

Thus, while appellants would not technically be out of court because the claims for fraud and breach of contract and warranty were timely filed, the de facto result would be that appellants would be precluded from seeking recovery of damages and attorney’s fees to which they may be entitled under the UTPCPL. As such, denial of the petition to amend constitutes an appealable order. Cf. Barr, supra, 520 A.2d at 490.

III.

A prerequisite to the prosecution of a private enforcement action under the Unfair Trade Practices and Consumer Protection Law is that the action must come within the protection of the statute. Appellants argue the sale of real estate falls within the purpose of the UTPCPL. Contrawise, appellee asserts that the sale of the real estate is not within the purview of the UTPCPL. Our resolution of this question is premised upon consideration of the intention and objectives of the UTPCPL.

Pennsylvania’s UTPCPL is modeled on the Federal Trade Commission Act. 15 U.S.C. § 45(a)(1). Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 462, 329 A.2d 812, 817-18 (1974) (the UPTCLP “has regularly been interpreted ... as being based on the Federal Trade Commission Act”); Commonwealth v. Flick, 33 Pa.Commw. 553, 561, 382 A.2d 762, 765 (1978) (“the Federal Trade Commission Act ... and the Lantram Trademark Act were models for Pennsylvania’s (UTPCPL)”). The UTPCPL supplements rather than supplants traditional common law remedies with per se liability for a variety of unfair trade practices.

The broad construction mandated by the core concerns of the legislature in enacting the UPTCPL allowed our Supreme Court in Commonwealth v. Monumental Properties, supra, to hold that the leasing of residential real estate was within the purview of the statute’s intendment. The Court resting its holding on several bases, including the modern and traditional conceptions of leasing, held:

Functionally viewed, the modern apartment dweller is a consumer of housing services.
The ... (tenant) is as much a consumer as the purchaser of an automobile, household appliance, or any other consumer good.
And from the landlord’s vantage, the marketing and distribution of [residential housing] increasingly follows methods mapped out by purveyors of modern consumer goods.
Moreover, there is substantial consumer law authority that the leasing of property is identical to the sale of the premises.

Id. 459 Pa. at 467-70, 329 A.2d at 820-23 (citations omitted). Additionally, the Court was mindful of the consequences of a contrary interpretation as well as the intent of the legislature:

We have seen that the Consumer Protection law was designed to end unfairness and deception in consumer transactions with the result that consumers would be placed on a more equal footing with seller. And this law was meant to apply to “any trade or commerce directly or indirectly affecting the people of this Commonwealth.”
73 P.S. § 201-2(3) (Supp.1971).
It would be difficult indeed to imagine anything that affects the lives and welfare of the people of this Commonwealth more than housing. The Legislature has repeatedly declared that this Commonwealth suffers from a housing crisis.
Fully aware of the pressing need for adequate housing and the unequal economic position of landlord and tenant, the Legislature sought to end unfairness and deception in the conduct of trade or commerce.
The Legislature directed that consumers were to be safeguarded by the Consumer Protection Law ... By holding that the leasing of housing is covered by the Consumer Protection Law, this Court faithfully gives effect to the legislative mandate.

Id., 459 Pa. at 474, 478, 329 A.2d at 824, 826.

Although we have no appellate decision in our courts specifically addressing this issue, our sister courts of common pleas have expressed a view on this question. In Anderson v. Kessler, 32 D. & C.3d 623 (Allegh.1984), it was held that “[i]f a leasehold of real estate is covered by the Consumer Protection Law, there is no reason why guarantees given in connection with the sale of real estate should not also be covered.” Id. at 625. Accord Best v. Hammill Quinlan Realty Co., Inc., 18 D. & C.3d 31 (Wash.1980). We agree, but base our conclusion on the more solid ground of the UTPCPL itself.

The operative provision of the Unfair Trade Practices and Consumer Protection Law provides: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.” 73 P.S. § 201-3 (emphasis added). “Trade” and “commerce” are defined by section 201-2(3) to include “the advertising, offering for sale, sale or distribution of any ... property, tangible or intangible, real, personal or mixed ...” Id. § 201-2(3) (emphasis added). Since unfair or deceptive acts or practices in the sale of real property are expressly declared unlawful, there is no merit to appellee’s assertion to the contrary. That sales of real property would be protected by the UTPCPL is consonant with its broad remedial purposes. Residential real estate is almost always a consumer’s largest single purchase. Consequently, the impact of unfair or deceptive practices is greatest in this type of transaction.

IV.

We now turn our attention to the important question of the appropriate statute of limitations for private enforcement actions brought under the UTPCPL. Inexplicably, the legislature, in enacting the UTPCPL failed to include a statute of repose for either actions for damages or injunctive relief under section 201-9.2. In the case sub judice, the trial court reasoned that such actions were governed by the two-year limitations period for actions for fraud and deceit:

The underlying foundation of [the] Consumer Protection Law is fraud prevention. Commonwealth v. Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974) on remand 26 Pa.Cmnwlth. 339 [399], 365 A.2d 442 (1976). An action pursuant to the Consumer Protection Act must necessarily sound in fraud or deceit. Therefore, it is the opinion of this Court that an action pursuant to the Consumer Protection Act sounds in trespass and as such is governed by the two year limitation pursuant to 42 Pa.C.S.A. § 5524(b) (emphasis added).

By contrast, a federal district court sitting in Pennsylvania applied a one-year limitation period to a trade disparagement claim brought under the UTPCPL. In the case of Merv Swing Agency, Inc. v. Graham Co., 579 F.Supp. 429 (E.D.Pa.1983), the action was for libel and for “[disparaging the goods, services or business of another by false or misleading representation of fact” under the Unfair Trade Practices and Consumer Protection Law. 73 P.S. § 201-2(4)(viii). The district court held that the plaintiffs common law libel claim was time-barred by 42 P.C.S. § 5523 which imposes a one-year limitation upon libel actions. The court drew an analogy between common law libel and the plaintiffs disparagement claim pursuant to the UTPCPL, concluding:

Section 5523 is equally applicable to bar plaintiffs claim under [UTPCPL] § 201-2(4)(viii). This statute makes disparagement of the services or business of another by false or misleading representations of fact, an “unfair or deceptive act or practice.” This action for false representation of fact is essentially a claim for libel. Consequently, § 5523 applies and this claim must also be brought within one year after the cause of action arose.

Id. at 430 (emphasis added).

The analysis employed by both the federal district court in Merv Swing and by the lower court in the case at bar in selecting a statute of limitations for the UTPCPL involved application of the most closely analogous limitations period. This approach, however, yielded inconsistent determinations. We believe that this result is directly attributable to the sui generis nature of the Unfair Trade Practices and Consumer Protection Law since the statute encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty. Consequently, the use of the standard employed by the trial court in the case at bar to select a limitations period threatens a multiplicity of potentially applicable statutes of repose for UTPCPL actions. Plaintiffs would be uncertain as to which limitations period governed their UTPCPL claim until the court determined whether their claim more closely resembled a tort action, a contract action, or an action under some other statute. A uniform statute of limitations for the UTPCPL is required to preclude such uncertainty and inconsistency. Appellants contend that, there being no express limitation on private actions under the UTPCPL, and since their claims fall within the ambit of that statute, the six-year “catchall” limitations period of section 5527(6) of the Judicial Code, 42 P.C.S. § 5527(6), applies. We agree for the reasons that follow.

The Pennsylvania legislature in 1976 enacted a new, all-inclusive limitation of actions statute. 42 P.C.S. § 5522-5527. This new statute, however, contained no express limitation on actions for fraud and deceit. In 1982, the legislature amended the Judicial Code to provide a two-year limitation period specifically for fraud and deceit actions. Id. § 5524(7). This amendment applies only to causes of action accruing after its effective date in February, 1983. Act No. 326, 1982 Pa.Laws 1409, 1440. Thus, the statute of limitations for fraud and deceit claims cannot apply to the instant case as the court below incorrectly held because appellants’ cause of aetion accrued in 1980, almost three years before the effective date of the two-year period of limitations for fraud actions. Even if we were to conclude that all actions brought pursuant to the UTPCPL sounded in deceit or fraud, what with appellants’ additional claims under UTPCPL the six-year “catchall” limitation of section 5527(6) would be applicable. As we previously noted, the Unfair Trade Practices and Consumer Protection Law embraces actionable conduct which sounds in assumpsit as well as trespass and which parallel actions upon contracts as well as those arising in tort. We are unable, therefore, to characterize all the multifarious claims that may be brought under the UTPCPL as “fraud” or “deceit.” Instead, the UTPCPL creates a civil action which is separate and distinct from appellants’ other causes of action and for which the legislature provided no limitations period. The language of section 5527(6) of the Judicial Code, however, is clear and unambiguous as to what period of limitation shall apply in such instances: “Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation [must be commenced within six years].” 42 P.C.S. § 5527(6) (emphasis added). Since section 201-9.2 of the UTPCPL provides for a civil action which is not subject to a limitations period, the Unfair Trade Practices and Consumer Protection Law is subject to the six-year “catchall” statute of limitations. We find further support for our determination in the decisions of the courts of other states which have concluded likewise.

In Holley v. Coggin Pontiac, Inc., 43 N.C.App. 229, 259 S.E.2d 1 (1979), the Court of Appeals of North Carolina was required to determine the appropriate statute of limitations for the North Carolina Unfair Trade Practices Statute. N.C.Gen.Stat. § 75-1.1 et seq. The defendant in that case argued that the treble damages provision of the statute was analogous to a penalty and that therefore the one-year statute of limitations for “an action of proceeding ... [u]pon a statute, for a penalty or forfeiture” was applicable. N.C.Gen.Stat. § 1-54(2). Unconvinced, the Court stated:

[I]t does not necessarily follow that because other multiple damages statutes have been found to involve penalties, all multiple damages provisions must therefore be penalties. Indeed, to adopt this reasoning, without more, would be to wander aimlessly through the annals of stare decisis. Quite simply, it may be inappropriate to select limitations by analogy from one subject to another, 53 C.J.S. Limitations of Actions § 33 (1948), especially if to do so would run against the policy and intent of the Legislature enacting the act in question, or if to do so would disregard the nature of the right involved.

Id. 259 S.E.2d at 6. Finding next that the purpose of the Unfair Trade Practices Statute were both remedial and penal, the Court emphasized:

“In addition, it appears that the provisions ... for treble damages and ... for attorney’s fees were intended by the General Assembly to serve as an incentive to injured parties to pursue their rights under [the Unfair Trade Practices Statute]. The nature of the violations of [that statute] is such that a one year statute of limitations makes it next to impossible to effectuate the policy behind [the statute].”

Id. at 8 (quoting a transmittal memorandum from the attorney general). As such, the Court adopted North Carolina’s three-year “catchall” statute of limitations, adding “that where there is doubt as to which statute of limitations should apply, the longer statute should be chosen.” Id. (quoting 51 Am.Jur.2d Limitations of Actions § 63 (1970)).

Confronted by the same issue in Murry v. Western American Mortgage Co., 124 Ariz. 387, 604 P.2d 651 (1979), the Arizona Supreme Court applied that state’s one-year “catchall” limitations period to the Arizona Consumer Fraud Act. The plaintiffs in Murry brought suit against a mortgage lender and a subdivision developer for damages sustained as a result of defects in their newly constructed house. Seeking to amend their complaint to include an action under the Consumer Fraud Act in addition to their common law fraud claim, the plaintiffs argued that Arizona’s three-year statute of limitations for fraud should apply. The trial court denied the motion on the grounds that the claim was time-barred by the one-year “catchall” limitation. The Arizona Supreme Court affirmed,

because the act creates a new liability. Although the act renders illegal the use of fraud in connection with the sale of merchandise, the elements of a claim for relief are not necessarily identical to those of common law fraud action. Since the Consumer Fraud Act creates a cause of action separate from common law fraud, an action commenced thereunder must be brought within one year as [the catchall statute] requires.

Id. 604 P.2d at 654 (citation omitted).

Like the North Carolina and Arizona Courts, we find that the application of the six-year “catchall” period of limitations will effectuate the broad remedial policies of the legislature in enacting this statute and ensure that those consumers injured by unfair or deceptive practices may pursue their rights under the UTPCPL.

V.

Because we hold that the UTPCPL is governed by a six-year statute of limitations and in order to eliminate the aimless searching for various time limits within which to bring actions into UTPCPL, we find that the trial court abused its discretion in denying appellants’ petition to amend their complaint on the basis that a claim pursuant to the UTPCPL was untimely. Accordingly, the order of the trial court is reversed and permission to amend the complaint is granted. Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.

      . Appellants also filed on August 28, 1986 a writ of summons commencing a separate action pursuant to the Unfair Trade Practices and Consumer Protection Law so as to preserve their claim in the event their petition for leave to amend was denied.

      . Section 5524(7) of the Judicial Code, as amended 1982, sec. 20, P.L. 1409, No. 326, Art. II, § 201, 42 P.C.S. § 5524(7). This provision states:
      The following actions and proceedings must be commenced within two years:
      (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.

      . Id. § 5527(6). This section provides:
      Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years, (emphasis added)

      . This principle is, of course, subject to the qualification that an amendment may not add a new cause of action on which a particular statute of limitations has run. Del Turco v. Peoples Home Savings Ass’n., 329 Pa.Super. 258, 478 A.2d 456 (1984). The issue in this case is whether another statute of limitation under the UTPCPL is equally applicable rather than the two-year statute for fraud.

      . Thus, although a claim under the UTPCPL brings forth a new cause of action, it also spawns a new statute of limitation period, to be discussed infra.

      . The UTPCPL was designed to promote full disclosure of information to consumers and "to equalize market position and strength of the consumer vis-a-vis the seller.” Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 467, 329 A.2d 812, 820 (1974). As the Supreme Court of Pennsylvania has observed:
      [TJhis Law attempts to place on more equal terms seller and consumer [and is] predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace. Instantly, the Legislature strove ... to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the CPL, since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation.

        Id., 459 Pa. at 460, 329 A.2d at 816 (footnote omitted). See also Pennsylvania Retailers Ass’n. v. Lazin, 57 Pa.Commw. 232, 237, 426 A.2d 712, 717 (1981); Commonwealth v. Kane, 33 Pa.Commw. 553, 559, 382 A.2d 762, 765 (1978).

      . Compare 73 P.S. § 201-3 ("Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.”) with 15 U.S.C. § 45(a)(1) (“Unfair methods of competition in commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful."). The UTPCPL is also based on the Lanham Trademark Act, 15 U.S.C. § 1051 et seq. Compare 73 P.S. § 201-2(4) of UTPCPL (enumerating unfair or deceptive acts or practices) with 15 U.S.C. § 1125(a), which provides:
      Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation or origin, or any false description or representation, including words or symbols tending falsely to describe or represent the same, and shall cause such goods to enter into commerce ... shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of such false description or representation.

      . 73 P.S. § 201-2.

      . The Unfair Trade Practices and Consumer Protection Laws of at least twenty-nine other states also apply to real estate transactions.

        See Ariz.Rev.Stat.Ann. § 44-1521; Colo.Rev.Stat.Ann. § 6-1-102; Conn.Gen.Stat.Ann. § 42-110b; Del.Code tit. 6, § 2511; Ga.Code Ann. § 106-1202(c); Idaho Code Ann. § 48-602; Ill.Stat.Ann. ch. 121½ ¶261; Iowa Code Ann. § 714.16(1)(b); Kan.Stat.Ann. § 50-624(g); Ky.Rev.Stat. § 367.110; Me.Rev.Stat.Ann. tit. 5, § 213; Md.Com.Law Code Ann. § 13-101 & 102; Mass.Code Ann. ch. 93A, §§ 1(b) & 9(1); Mich.Stat.Ann. § 445.902; Miss.Code Ann. § 75-24-3; Mo.Ann.Stat. § 407.010; Mont.Rev.Code Ann. § 30-14-102; Neb.Rev.Stat. § 59-1601; Nev.Rev.Stat.Ann. § 598.440; N.H.Rev.Stat.Ann. § 358-A:1, N.D.Cent.Code § 51-15-01; Okla.Stat.Ann. tit. 15, § 752; Or.Rev.Stat. § 646.605; R.I.Gen.Laws Ann. § 6-13.1-1; S.C.Code Ann. § 34-5-10; Tex.Bus. & Com.Code Ann. § 17.45; Va.Code Ann. § 59.1-198; Wash.Rev.Code Ann. § 19.86.010; Wyo.Stat.Ann. § 40-12-102. For cases applying these statutes to real estate transactions, see, e.g., Klotz v. Underwood, 563 F.Supp. 335 (E.D.Tenn.1982); Wilkinson v. Smith, 639 P.2d 768 (Wash.App.1982); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981); Rosenthal v. Perkins, 42 N.C.App. 449, 257 S.E.2d 63 (1979); Sherrod v. Holzshuh, 274 Or. 327, 546 P.2d 470 (1976). For a full discussion and comparison of state unfair competition statutes, see generally, Sibert, Enforcement of State Deceptive Trade Practice Statutes, 42 Tenn.L.Rev. 689 (1975); Lovett, State Deceptive Trade Practice Legislation, 46 Tulane L.Rev. 724 (1972).
      In addition, the Federal Trade Commission has invoked jurisdiction over real estate sales transactions. E.g., Southwest Sunsites, Inc., 3 Trade Reg.Rep. (CCH) 22, 226 (1985) (cease and desist order against real estate developer for misrepresenting actual land values); Las Animas Ranch, Inc., 3 Trade Reg.Rep. (CCH) 21, 840 (1981) (restitution order for real estate buyers for misrepresentations as to quality of land, location of lots and availability of utilities); Cavanaugh Communities Corp., 93 F.T.C. 559 (1979) (consent order against realtor for nondisclosure of unavailability of sewage and water); Kaufman & Broad, Inc., 93 F.T.C. 253 (1979) (consent order against real estate developer for misrepresentations that homes were constructed free of defects and water drainage problems).

      . 73 P.S. § 201-2(4)(i) (passing off goods or services as those of another) See Bisceglia Bros. Corp. v. Fruit Industries, 20 F.Supp. 564, 568 (E.D.Pa.1937) (defining passing off as "the sale ... of the goods of one vendor ... for those of another").

      . 73 P.S. § 201 — 2(4)(ii) (confusion as to commercial source); id. § (iii) (confusion caused by misleading tradenames). See American Oil Co. v. Norkus, 358 Pa. 407, 57 A.2d 868 (1948) (common law tradename infringement).

      . 73 P.S. § 201-2(4)(iv) (misdescriptive statements as to geographic origin) Compare id. with 15 U.S.C. § 1125(a) (reproduced footnote 6, supra). See also Gum, Inc. v. Gumakers of America, 1 F.R.D. 586 (E.D.Pa.1941) (common law trademarks).

      . 73 P.S. § 201-2(4)(viii). See Zerpol Corp. v. DMP Corp., 561 F.Supp. 404, 408 (E.D.Pa.1983) (disparagement action "protects economic interests by providing a remedy to one who suffers pecuniary loss from slurs affecting the marketability of his goods”).

      . 73 P.S. § 201-2(4)(v) (deceptive marketing of goods, services or business); id. §§ (ix) and (x) (bait advertising); id. § (xi) (fictitious price cuts).

      . Id. §§ (vi) and (vii) (marketing of altered or inferior goods); id. § (xv) (misrepresentation) id. § (xvii) (miscellaneous fraudulent practices).

      . Id. § (xvi). See Pa.Senate Leg.J., June 28, 1976, at 1798 (Sen. Zemprelli) (“deals with a matter which ... is regarded as a breach [sic] contract").

      . Id. § (xiv). See 13 P.S. §§ 2313 (express warranty), 2314 (implied warranty of merchantability), 2315 (implied warranty of fitness for a particular purpose).

      . 42 P.C.S. § 5524(7) (two year limitation).

      . Id. § 5525(8) (four year limitation); 13 P.C.S. § 2725(a) (U.C.C. four-year limitation).

      . Violations of several other statutes also constitute violations of the UTPCPL. See, e.g., Bolden v. Potamkin-Auerbach Chevrolet, Inc., 470 F.Supp. 618 (E.D.Pa.1979) (Pennsylvania Motor Vehicle Sales Finance Act); Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986) (Unfair Insurance Practices Act); Culbreth v. Lawrence J. Miller, 328 Pa.Super. 374, 477 A.2d 491 (1984) (Public Adjuster Law); Pennsylvania Bankers Ass’n. v. Commonwealth, 58 Pa.Commw. 170, 427 A.2d 730 (1981); Safeguard Inv. Corp. v. Commonwealth, 44 Pa.Commw. 417, 404 A.2d 720 (1979) (Usury Statute). In addition, section 1961 of the Pennsylvania Automobile Lemon Law, 73 P.S. § 1961, expressly provides "[a] violation of this act shall also be a violation of the [UTPCPL].” Because the remedy of this statute is analogous to an action for revocation of acceptance under section 2608 of the Uniform Commercial Code, 13 P.C.S. § 2608, the four-year limitations period of the UCC is applicable. Id. § 2725(a). See Saunders, The Pennsylvania Automobile Lemon Law — Uncharted Terrain, 57 Pa.B.A.Q. 30, 36 (1986).

      . Until 1983, fraud actions were subject to a six-year statute of limitations. Act of March 27, 1713, 1 Sm.L. 76 (repealed by Act No. 53, 1978 Pa.Laws 202, § 2). See Home Life Ins. Co. v. Greenspan, 360 Pa. 542, 63 A.2d 72 (1949). In determining what limitations period governed fraud claims that accrued after 1978 but before 1983, the court in A.J. Cunningham Packing v. Congress Financial Corp., 792 F.2d 330 (3rd Cir.1986), held that the six-year "catchall” statute of limitations was applicable.

      . See supra notes 10-17 and accompanying text. The remedies of the UTPCPL are not exclusive but in addition to these other remedies.

      . "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 P.C.S. § 1921(b).


author: MONTEMURO, Judge:

text:
    534 A.2d 496
    Louise BORYSOWSKI, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Dec. 4, 1987.

      John Shniper, Spring City, for appellant.
    Louis E. Bricklin, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

Appellant Louise Borysowski appeals from the order of the Court of Common Pleas of Philadelphia County which granted summary judgment in favor of State Farm Automobile Insurance Company, appellee herein.

The sequence of events leading up to the present appeal occurred in the following manner. On November 13, 1977 appellant sustained injuries resulting from an automobile accident. Appellant filed a timely claim for no-fault benefits against appellee, her automobile insurance carrier, under the Pennsylvania No-fault Motor Vehicle Insurance Act (hereinafter “No-fault Act”). Appellee began paying no-fault benefits to appellant but ceased making payments on January 10, 1983. Thereafter, on October 7, 1985 appellant instituted an action seeking additional no-fault benefits from appellee. By way of new matter appellee asserted that appellant’s claim was time barred by the two year statute of limitations contained in the No-fault Act. 40 P.S. § 1009.106(c)(1). The trial court granted appellee’s subsequent motion for summary judgment, holding that appellant’s claim was barred since it was not filed within two years from the date of the last payment of benefits, as required by Section 106(c)(1) of the No-fault Act. This timely appeal followed. We affirm.

The problem presented in this appeal results from the fact that between the time of appellee’s last payment of benefits to appellant on January 10, 1983 and the commencement of appellant’s action on October 7, 1985, the No-fault Act was repealed and replaced with the Motor Vehicle Financial Responsibility Law (hereinafter “Financial Responsibility Law”). Appellant contends that the repeal of the No-fault Act on October 1,1984, prior to the filing of his cause of action on October 7, 1985, makes the general six year statute of limitations governing contractual obligations applicable to his case, rather than the two year statute of limitations contained in the No-fault Act.

Initially we recognize that our scope of review of the entry of summary judgment is limited to a determination of whether the trial court has committed an error of law or manifestly abused its discretion. Peters Township School Authority v. U.S. Fidelity and Guaranty, 78 Pa.Cmmw.Ct. 365, 370, 467 A.2d 904, 906 (1983). In determining the propriety of the granting of a motion for summary judgment we must:

[ajccept as true all well pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also entitlement to judgment as a matter of law.

Bragg v. State Automobile Insurance Association, 350 Pa.Super. 257, 261, 504 A.2d 344, 346 (1986).

Section 106(c)(1) of the No-fault Act provides:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

40 P.S. 1009.106(c)(1) (émphasis added).

An examination of Section 106(c)(1) reveals that it contains two limitations provisions, one of which is limited in application to claimants who have not already received no-fault benefits, and the other to claimants who have previously received benefits. The first sentence of Section 106 places a time constraint on claimants within which they must assert their initial claim against an insurer for no-fault benefits. The second sentence, the one with which we are concerned, provides an extension of time to claimants who were previously receiving no-fault benefits in accordance with the provisions of the No-fault Act. It grants these claimants a two year extension from the date of last payment of benefits within which to file any additional claim that they may have against an insurer. In Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982), our supreme court discussed the relationship of Section 106(c) to the other provisions of the No-fault Act and with respect to previously enacted statutes of limitation. The court reasoned:

In 1974, the General Assembly undertook in the No-fault Insurance Act ‘to establish at a reasonable cost to the purchaser of insurance, a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.’ In so doing, the legislature was clearly attempting to provide an alternative to the existing system of tort litigation without completely eliminating it for those cases of graver injuries and greater than normal economic burdens to victims and their survivors. It is also quite clear, in spite of the insurance law phraseology, that the legislature, in addressing the question of what type of time limitation to apply to claims under this new No-fault Insurance Act, relied in Section 106(c) on the familiar limitations so long established in our statutes: two years for personal injury actions and one year for actions based on wrongful death. Although the statute now speaks of ‘benefits ... arising otherwise than from death’ instead of damages for personal injury’ in Section 106(c)(1) and ‘survivor’s benefits’ instead of damages for wrongful death in Section 106(c)(2), these provisions are clearly analogous to the old statutory provisions.

Id., 500 Pa. at 175-176, 455 A.2d at 106.

Specifically, with respect to the second sentence of 106(c)(1), the court went on to state:

[w]e find that the second sentence in Section 106(c)(1) ... has provided appellant in this case with an extension of time from the old period of two years after the injury was done to ‘a period not later than two years after the last payment of [no-fault] benefits’____

Id., 500 Pa. at 177, 455 A.2d at 106.

It is undisputed that under the second sentence of Section 106(c)(1) appellant’s claim for continued medical benefits would be barred as it was filed nearly two years and nine months after appellee’s last payment of benefits. However, on October 1, 1984 the General Assembly repealed the No-fault Act. In its place the General Assembly enacted the Financial Responsibility Law, a comprehensive scheme for payment of first party benefits designed to compensate victims involved in motor vehicle accidents. 75 Pa.C.S.A. § 1701, et seq. The new Act also provides an internal statute of limitations similar to the one contained in Section 106(c)(1) of the No-fault Act. See 75 Pa.C.S.A. § 1721(a). The Financial Responsibility Law became effective on the same date that the No-fault Act was repealed. The legislation pertaining to the date of repeal of the No-fault Act and the effective date of the Financial Responsibility Law contained the following provisions:

Section 8.(a). The act of July 19,1974 (P.L. 489, No. 176), known as the Pennsylvania No-Fault Motor Vehicle Insurance Act is repealed.
Section 9. This Act applies to insurance policies issued or renewed on or after the effective date of this act.

§§ 8(a), 9, Act of February 12, 1984, P.L. 26, No. 11, 75 Pa.C.S.A. § 1701, et seq., effective October 1, 1984.

Appellant’s argument starts with the general proposition that statutes of limitation do not affect the rights of the parties, but merely the remedies for enforcement of rights, and therefore, such statutes are procedural in nature. Appellant asserts that because of the procedural characterization of statutes of limitation by the courts of this Commonwealth, the applicable statute of limitations to his claim for additional benefits is the one in effect when he filed his claim on October 7,1985. He urges us to adopt the position that the repeal of the No-fault Act on October 1, 1984, coupled with the exclusion of insurance policies issued before October 1, 1984 from the provisions of the Financial Responsibility Law, means that the limitations period in effect at the time he filed his action could only be the six year period prescribed by the Judicial Code. See infra n. 4. We reject appellant’s argument for several reasons.

We begin our analysis recognizing that in construing any legislative enactment the primary objective is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S.A. § 1921(a). Moreover, courts will presume that the legislature did not intend a result which is absurd or unreasonable. 1 Pa.C.S.A. § 1922(1); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). Section 1976 of the Statutory Construction Act provides guidance in ascertaining the intention of the legislature where comprehensive statutory schemes are repealed and replaced with other legislation. That Section provides in pertinent part:

(a) The repeal of a statute shall not affect or impair any act done, or right existing or accrued, or affect any civil action pending to enforce any right under the authority of the statute repealed. Such action may be proceeded with and concluded under the statutes in existence when such action was instituted, notwithstanding the repeal of such statutes, or such action may be proceeded with and concluded under the provisions of the new statute, if any, enacted.

1 Pa.C.S.A. 1976(a). The foregoing principles demonstrate that an aggrieved party may generally proceed under the provisions of a statute under which his cause of action accrued, and which has since been repealed, or under the provisions of the new legislation in effect when he files suit. However, the choice as to which statute governs the claim is ultimately dictated by the intention of the legislature.

In the present case appellant began receiving no-fault benefits from appellee in accordance with the provisions of the No-fault Act. At the time he received his last payment on January 10, 1983 from appellee, appellant’s cause of action for additional benefits accrued. The only condition placed on enforcement of his right to receive additional benefits was that he file his claim by January 10, 1985. Through Act 11, which took effect on October 1, 1984, the General Assembly repealed the No-fault statute and simultaneously replaced it with a new comprehensive statutory scheme of financial responsibility. However, in Section 9 of Act 11 the General Assembly expressly declared that the new financial responsibility statute only applied to insurance policies issued or renewed on or after the effective date of the act.

We believe that it was the intention of the legislature to provide an orderly transition from the old statutory scheme to the new one. The express language of Section 9 of Act 11 clearly indicates that the legislature intended that the new Financial Responsibility Law would only apply to insurance policies issued or renewed on or after October 1, 1984. In so providing the legislature recognized that policies issued prior to October 1, 1984 would remain subject to the provisions of the repealed No-fault Act until such policies were renewed subsequent to the effective date of the Financial Responsibility Law. Appellant’s interpretation suggests the absurd result that while claims arising under the No-fault Act but filed after the effective date of the Financial Responsibility Law would be subject to the substantive provisions of the No-fault Act, they would be subject to procedural requirements wholly external to either the new or the old comprehensive statutory scheme. Because “procedural” requirements of a comprehensive scheme like the No-fault Act are often inextricably intertwined with substantive rights created by the Act, we reject appellant’s argument that the legislature intended sub silentio to make claims accruing under the provisions of the No-fault Act subject to the six year limitations period in the Judicial Code. If our General Assembly had desired to make claims arising under the repealed No-fault Act subject to the general 6 year limitations provision in the Judicial Code, it could have easily satisfied its desire by providing specific language to that effect. In the absence of such language we are constrained to conclude that the legislature intended insurance policies issued prior to October 1, 1984 to remain subject to the provisions of the No-fault Act, including the two year statute of limitations contained in Section 106(c)(1). Accord, Solomon v. Presbyterian University Hospital, 365 Pa.Super. 447, 530 A.2d 95 (1987).

We also note that the insurance policy entered into between appellant and appellee contained a provision which stated that payment for bodily injury would be made in accordance with the No-fault Act. In United Plate Glass Co. v. Metal Trims Industries, Inc., 351 Pa.Super. 228, 232, 505 A.2d 613, 615 (1986), we faced an analogous situation. That case involved the execution of a performance and payment bond required by the Public Works Contractors’ Bond Law (hereinafter “Bond Law”). 8 P.S. § 191 et seq. The bond was executed in favor of the Department of General Services and provided that it was subject to the Bond Law. The statute of limitations provision contained in the Bond Law was subsequently repealed by a general provision contained in 42 Pa.C.S.A. § 5523. We held that because the bond incorporated the provisions of the Bond Law in effect at the time of its execution, it was governed by the statute of limitations contained therein. We believe that similar reasoning is applicable to the instant case. When appellant entered into an insurance agreement which incorporated the provisions of the No-fault Act, he was put on notice that any claim for initial benefits, as well as any subsequent claim, would be subject to the provisions of that act. One such provision was the two year limitations period for asserting additional claims for benefits contained in Section 106(c)(1). As the last payment to appellant was made on January 10, 1983 and appellant did not institute suit until October 7, 1985, which was nearly two years and nine months later, the trial court properly concluded that appellant’s claim was time barred under 40 P.S. § 1009.-106(c)(1) of the No-fault Act.

Accordingly, the trial court’s order entering summary judgment in favor of appellee is affirmed.

      . Act of July 19, 1974, P.L. 489, 40 P.S. 1009.101, et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, Section 8(a), effective October 1, 1984.

      . Act of February 12, 1984, P.L. 26, No. 11, 75 Pa.C.S.A. § 1701, etseq., effective October 1, 1984.

      . We note that appellant contends that the applicable statute of limitations is set forth in the Judicial Code at 42 Pa.C.S.A. § 5527, which provides six years for the commencement of an action. However, if appellant’s contention were correct that the periods of limitations set forth in the Judicial Code apply to insurance contracts, the provision governing the present case would be the four year limitation provision contained in 42 Pa.C.S.A. § 5525(8). In any event, the parties concede that if the two year limitations period contained in the No-fault Act applies, then appellant’s claim is barred; however, if either the four or six-year limitations periods apply, then appellant’s claim is viable.

      . Appellant’s reliance on Seneca v. Yale and Towne Manufacturing Co., 142 Pa.Super. 470, 16 A.2d 754 (1940) and Condemnation of Real Estate by Carmichaels-Cumberland Joint Sewer Authority, 88 Pa. Cmwlth. 541, 490 A.2d 30 (1985) is misplaced. In both Seneca and Carmichaels, the court retroactively applied a newly enacted limitations provision, which was substituted into the statutory scheme for the old provision, based on the legislature’s intent that the new provision be applied to causes of action which accrued under the old statute. In contrast to the aforementioned cases, in the case at bar the legislature specifically provided that the provisions of the newly enacted Financial Responsibility Law were inapplicable to policies issued before October 1, 1984. Consequently, there is no indication that the legislature intended anything other than the provisions of the No-fault Act to continue to apply to policies issued before October 1, 1984.


author: WIEAND, Judge: BROSKY, Judge,

text:
    534 A.2d 501
    COMMONWEALTH of Pennsylvania, Appellee, v. William POTTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 6, 1987.
    Filed Dec. 8, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Stewart Wilder, Assistant District Attorneys, Philadelphia, for Com., appellee.

      Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

William Potts was tried non-jury and was found guilty of simple assault and failure to stop at the scene of an accident as a result of his striking a pedestrian at Fifth Street and Oregon Avenue, Philadelphia, on April 1, 1985. On appeal, after oral post-trial motions were denied and a sentence of imprisonment imposed, Potts argues that the trial court erroneously denied a pre-trial motion to dismiss based upon the Commonwealth's alleged failure to comply with Pa.R.Crim.P. 1100. We find no merit in this argument and affirm the judgment of sentence.

In an opinion prepared by the trial court, it is suggested, and the author of the dissent agrees, that the Rule 1100 issue was waived because it was not the subject of written post-trial motions. The record is clear, however, and the Commonwealth agrees, that post-trial motions were made and argued orally at the conclusion of the trial and that the Rule 1100 issue was included therein.

Oral post-verdict motions are expressly allowed by Pa.R.Crim.P. 1123(b) and are effective to preserve issues raised thereby for appellate review. See: Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983); Commonwealth v. Lewis, 315 Pa.Super. 328, 330-331 n. 5, 461 A.2d 1305, 1306 n. 5 (1983); Commonwealth v. Von Aczel, 295 Pa.Super. 242, 245 n. 1, 441 A.2d 750, 751 n. 1 (1981); Commonwealth v. Kinsey, 249 Pa.Super. 1, 7, 375 A.2d 727, 730 (1977).

Pa.R.Crim.P. 1123(b) provides as follows:

(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the ten (10) day period on the record voluntarily and understanding^ waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that waiving of post-verdict motions shall preclude raising on appeal any issues which might have been raised in such motions.

The interpretation of this rule was before a panel of this Court in Commonwealth v. Kinsey, supra. The Court recognized that “one possible interpretation of the above-quoted language would make it the responsibility of the trial judge to establish on the record the defendant’s consent to this procedure.” Id., 249 Pa.Superior Ct. at 7, 375 A.2d at 730. However, the court rejected such an interpretation. “The requirement that a defendant agree on the record to the making of oral post-verdict motions [must] be construed consistently with the other provisions contained in Rule 1123. In short, this provision [must] be construed to protect, not defeat, a defendant’s appellate rights____ [To find that where the trial court fails to obtain defendant’s agreement on the record no issues are preserved for appellate review] is tantamount to the disfavored practice of presuming a waiver of valuable appellate rights from a silent record.” Id., 249 Pa.Superior Ct. at 14-15, 375 A.2d at 734 (Hoffman, J., Concurring). Therefore, the Court held:

If the trial judge has properly informed the defendant, upon the record in open court, of his post-verdict rights under 1123(c), and the defendant, by counsel, thereafter proceeds to make oral motions, these motions would be proper and effective under 1123(b). In the aforestated circumstances, the post-trial claims raised orally would be properly preserved for appellate review, and assuming no further written motions were timely filed, [only] arguments not included in the oral motions would be waived for appellate purposes.

Id., 249 Pa.Superior Ct. at 7, 375 A.2d at 730.

We agree with the Kinsey court. Rule 1123(b) was intended to provide a procedure for accelerating the disposition of post-trial motions. It was not intended as a “waiver trap” for defendants who are willing to proceed expeditiously to a conclusion of pending criminal charges. Appellant in the instant case elected to proceed in the manner provided by 1123(b); and the issues raised in this manner were preserved for appellate review. Therefore, we will decide the Rule 1100 issue on its merits.

The criminal complaint was signed on April 1, 1985. The run date for Rule 1100 purposes, therefore, was September 28, 1985. Trial commenced on November 12, 1985. However, thirty-seven days were excludable. On May 22, 1985, although the Commonwealth was ready to proceed with a preliminary hearing, the hearing was continued because of a defense request for a lineup. As a result, the preliminary hearing was not held until June 28,1985, thirty-seven days later. This period of thirty-seven days was a delay caused wholly by the defense and was excludable pursuant to Pa.R.Crim.P. 1100(d)(3)(ii). Therefore, the Rule 1100 run date was automatically extended to November 4, 1985.

The case was listed for trial on October 28,1985. On that date, the court heard argument on appellant’s motion to dismiss the charges pursuant to Rule 1100 and took the motion under advisement until October 30, 1985. On the latter date, the Commonwealth filed a petition for an extension of time pursuant to Rule 1100(c). The basis for the petition was that a Commonwealth witness had been hospitalized and, therefore, could not appear for trial. On November 12, 1985, prior to commencement of trial, the court granted the Commonwealth’s petition for extension and, at the same time, denied appellant’s motion to dismiss.

We hold that the petition for extension of time was properly granted.

An extension is proper if the trial court finds that, despite the exercise of due diligence by the Commonwealth, trial could not be commenced within the prescribed period. Rule 1100(c)(3); Commonwealth v. Bulling, [331 Pa.Super. 84, 90, 480 A.2d 254, 257 (1984) ]. “It is well settled that the illness of a Commonwealth witness may be a proper basis upon which to grant a Rule 1100 extension as the Commonwealth should not be penalized for events and circumstances which are wholly beyond its control.” Id., 331 Pa.Superior Ct. at 96, 480 A.2d at 260. “So long as the witness’ unavailability is through no fault of the Commonwealth, a finding of due diligence is warranted and an extension is proper.” Commonwealth v. Lafty, [333 Pa.Super. 428, 436, 482 A.2d 643, 647 (1984) ].

Commonwealth v. Kostra, 349 Pa.Super. 89, 98, 502 A.2d 1287, 1291 (1985). See: Commonwealth v. Burke, 344 Pa.Super. 288, 292, 496 A.2d 799, 801 (1985); Commonwealth v. Stewart, 343 Pa.Super. 514, 520-521, 495 A.2d 584, 587 (1985).

The judgment oí sentence is affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result, only.

The issue raised is whether the trial court erred in granting the Commonwealth’s Petition to Extend under Pa.R. Crim.P. 1100 because of its untimely filing. As discussed below, I consider this issue waived and would therefore affirm the judgment of sentence without reaching appellant’s Rule 1100 claim.

The trial transcript discloses that appellant’s counsel made oral post-verdict motions at the conclusion of the stipulated waiver trial. Those motions were denied immediately after presentation.

The presentation of oral post-verdict motions, however, is not adequate to preserve issues for appellate review. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984); Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982). Instead, our appellate courts insist upon specific written post-verdict motions filed of record to effectuate appellate disposition of the merits. Presenting specific allegations of trial error orally is therefore not a substitute. Id. Even allegations of error not orally argued or presented are nevertheless preserved for appellate consideration so long as they are set forth in written post-verdict motions. Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978).

Post-verdict motions are permitted to be made orally at the conclusion of trial only if the defendant agrees on the record. Pa.R.Crim.P. 1123(b). My reading of the transcript discloses no such agreement by appellant at trial, nor does the record contain any other document representing to be such an agreement.

The majority suggests that because post-verdict motions, which included the instant Rule 1100 issue, were made orally at. the conclusion of trial, the issue is preserved for appellate review. This is not so. We have no jurisdiction to pass upon matters not properly preserved in the record below. See Pa.R.App.P. 302(a). The ability to consider matters brought before us on appeal goes to the heart of our jurisdiction. We lack the power to entertain a claim raised to this court without proper preservation in the record of the trial court, and neither the trial court, by its consideration of the issue, nor the Commonwealth, by default in failing to raise waiver expressly or impliedly by substantive argument, can confer this jurisdiction upon us. The importance of written post-verdict motions to effective appellate review has been aptly underscored by the Waters court:

[A]t the appellate level, written motions which have been filed and made part of the record provide a precise basis for determining the issues contested at the trial level.

Id., 477 Pa. at 435, 384 A.2d at 236.

In sum, the insistence upon the requirement of specific written post-verdict motions in accordance with Rule 1123(a) enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy. Because of the desirability of the objectives sought to be obtained by enforcement of this requirement and the unequivocal notice to the bench and the bar that strict compliance would be expected as to motions filed after our [Commonwealth v.] Blair decision, there is no longer a justification for a continuation of an exception of the application where issues are raised orally.

Id., 477 Pa. at 435-36, 384 A.2d at 231; (footnote omitted; emphasis supplied).

In Waters, the defendant filed post-verdict motions styled only in boiler-plate fashion. At oral argument on post-verdict motions, however, he raised an issue not included in his written post-verdict motions. Our Supreme Court refused to consider the merits of this orally raised claim (as well as the boiler-plate allegations) because of defendant’s non-compliance with the earlier mandate of Commonwealth v. Blair, supra, that all issues raised on appeal be preserved in written post-verdict motions despite having been raised by specific oral motion and considered by the trial court. The Waters court concluded that consideration of oral motions, alone, does not achieve the objectives of Rule 1123. Thus, I would agree with the trial court that since appellant filed no post-verdict motions, he has now waived any allegations of error (Trial Court Opinion, p. 1).

Notwithstanding the above, however, the majority proceeds to address the merits of this appeal. Its predicate for doing so is based upon its reading of Pa.R.Crim.P. 1123(b) that “[o]ral post-verdict motions are expressly allowed by Pa.R.Crim.P. 1123(b) and are effective to preserve issues raised thereby for appellate review.” (Majority Opinion, p. 502). For this proposition, it cites Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983), Commonwealth v. Lewis, 315 Pa.Super. 328, 461 A.2d 1305 (1983), Commonwealth v. Von Aczel, 295 Pa.Super. 242, 441 A.2d 750 (1981), and Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977). My reading of these cases leads me to conclude that they are not dispositive of the majority’s position.

Pennsylvania Rule of Criminal Procedure 1123(b) provides as follows:

(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the ten (10) day period on the record voluntarily and understanding^ waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that waiving of post-verdict motions shall preclude raising on appeal any issues which might have been raised in such motions.

Emphasis supplied.

In Commonwealth v. Aycock, supra, the author of the present majority concluded that the Rule 1123(b) procedure sufficed to preserve issues for appellate review because “appellant ... had conferred with counsel, and had consented affirmatively to proceed with oral motions.” Id., 323 Pa.Super. at 66, 470 A.2d at 132; emphasis supplied. Aycock makes reference to Commonwealth v. Lewis, supra, and Commonwealth v. Von Aczel, supra in support of this conclusion.

In Commonwealth v. Lewis, supra, defendant was convicted after a bench trial of the summary offense of unauthorized use of a motor vehicle. His oral post-verdict motion made pursuant to Rule 1123(b) at the conclusion of the bench trial was denied, and he was immediately sentenced. In vacating the judgment of sentence, this court considered that since defendant was not apprised on the record of his Rule 1123(c) rights to file post-verdict motions within ten days and that any motions not raised therein would be waived for appeal purposes, he could not have knowingly and intelligently surrendered his appellate rights. Moreover, and like the instant case, the record was barren of any consent by the appellant there to present post-verdict motions orally, which waived the right to reassert the orally-made allegation in any subsequently filed written post-verdict motion.

The defendant in Commonwealth v. Von Aczel, supra, did consent to have counsel orally present the insufficiency of the evidence claim at the conclusion of the bench trial, after denial of which he was sentenced. This court concluded that two other issues which would have normally been waived because they were raised on appeal for the first time were cognizable nonetheless. One implicated the legality of his sentence for two inchoate crimes which is non-waivable. The other issue, raising ineffectiveness of trial counsel, was not waived under the then prevailing law which did not permit counsel to assail his own ineffectiveness. It also appears that defendant there, as in Commonwealth v. Lewis, supra, was not informed on the record of his rights pursuant to Rule 1123(c). Considering that two of the issues were non-waivable both in substance as well as procedurally, the Von Aczel court most likely addressed the merits of the orally-made sufficiency claim in the interests of judicial economy.

Similarly, in Commonwealth v. Kinsey, supra, defendant, again, was not informed of his Rule 1123(c) rights after his bench trial adjudication of guilt and pronouncement of sentence. Additionally, no consent to have counsel orally present post-verdict motions at the conclusion of trial appeared of record. Although Judge Hoffman’s concurrence in Kinsey concluded that oral presentation properly preserved all the issues raised there despite defendant’s lack of consent on the record, it does acknowledge:

Rule 1123(b) allows a defendant to waive knowingly and voluntarily the filing of post-verdict motions after the trial court advises him that waiver will preclude an appeal on any issues which might have been raised in such motions. The defendant must personally make this waiver. The requirement that a defendant agree on the record to the making of oral post-verdict motions should be construed consistently with the other provisions contained in Rule 1123. In short, this provision should be construed to protect, not defeat, a defendant’s appellate rights. The trial court should inform the defendant of the prejudice that could result if counsel does not reserve the right to file written post-verdict motions. The court should then solicit and obtain a defendant’s agreement to the oral motions. The appellant in the case at bar should not be penalized for the trial court’s failure to obtain his consent. Only this result comports with the thrust of Rule 1123(b) and (c); a contrary result is tantamount to the disfavored practice of presuming a waiver of valuable appellate rights from a silent record.

Id. 249 Pa.Super. at 14-15, 375 A.2d at 734 (Hoffman, J., concurring) (emphasis supplied; footnote omitted).

I agree with the concern expressed by the concurrence that a defendant should not be “waived out” of his right to have claims of error addressed by an appellate court which he, in good faith, believed were properly presented to the trial court. On this basis, I would hold that the trial court’s failure to obtain a defendant’s consent on the record before post-verdict motions are presented orally would not preclude but, rather, would mandate an appellate court’s consideration of the same on the merits when this error is compounded by the failure of the trial court to apprise the defendant pursuant to Rule 1123(c) of his right to file written post-verdict motions within the time prescribed by subsection (a) of the Rule and the ramifying effects of his failure to do so.

Thus, given the scenarios delineated in the cases cited by the majority, I am unpersuaded that they lend any support at all to the majority’s position that presentation of oral post-verdict motions is adequate to preserve any issues raised therein for appellate review. First, unlike the defendants in Lewis, Von Aczel, and Kinsey, appellant here was informed by the trial court of his post-verdict rights as required by Pa.R.Crim.P. 1123(c) (N.T. 63-65). Secondly, the court in Lewis and Kinsey, considered the defendants’ lack of record consent coupled with failure to advise the defendants of their rights pursuant to Rule 1123(c) determinative in addressing the merits of those appeals.

In Aycock, defendant and his counsel “had conferred, [and] a decision was made to go ahead with oral post-verdict motions____” Id. 323 Pa.Super. at 65, 470 A.2d at 131. This court implicitly concluded from the foregoing that defendant had entered a record consent and thus proceeded to address the merits. However, even assuming that the defendant there had, in conferring with counsel, agreed to allow the latter to present his post-verdict claims orally, this is not the type of consent contemplated by what I perceive to be the clear import of Rule 1123(b) that “[i]f the defendant agrees on the record, the post-verdict motions may be made orally____” (emphasis supplied). It stands to reason that a conference between attorney and client, especially with regard to strategy impacting upon the latter’s basic appellate rights, does not normally transpire upon an open record. Nor can a defendant’s consent be “implied” from the mere fact that his counsel presents oral post-verdict motions on his behalf, even after conferral with the client. In terms of the Rule’s on-the-record requirement, consent cannot be presumed from a silent record.

In my view, the “on-the-record” requirement of the Rule implicates, at least, a colloquy between the trial court and the defendant in much the same way as that required by Rule 1123(c) and 1405(c). In colloquy, the trial court must explain to the defendant the waiver ramifications in the event the latter does agree, on the record, to have his post-trial claims orally heard. After this explanation, the trial court must then obtain the defendant’s personal consent on the record to have his post-trial claims presented orally along with the defendant’s knowing and intelligent acknowledgement that oral presentation bars forever further assertion of claims made pursuant to Rule 1123(a) and on appeal.

In effect, a defendant’s consent on the record made pursuant to Rule 1123(b) operates as a waiver of the right to include any allegations orally presented and disposed of at that time by the trial court in subsequent written post-verdict motions filed within the ten-day period prescribed by subsection (a) thereof. I believe that such a conclusion may be readily presumed from the tenor of the language in Rule 1123(b) allowing a defendant to voluntarily and understandingly waive the filing of post-verdict motions within the ten-day period of the Rule. The Rule then mandates that before this event, i.e., the waiving of filing post-verdict motions, the trial court must apprise the defendant in accordance with subsection (c) that the waiver precludes appellate review of any issues.

This is also consistent with the concept of precluding relitigation of a matter once adjudicated, i.e., granted or denied. Thus, it stands to reason that an allegation once orally made and disposed of cannot then be re-presented in Rule 1123(a) written post-verdict motions required to be filed, if at all, within ten days of the finding of guilt. The teaching of our Supreme Court in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), is that only issues included in written post-verdict motions are preserved for appellate review. Since oral post-verdict claims once decided are barred from inclusion in any subsequent written post-verdict motions filed pursuant to Rule 1123(a), they also cannot be preserved for appellate review.

Here, the record is silent as to any consent by appellant to have his counsel present oral post-verdict motions at the conclusion of the trial. Normally, this would not result in waiver, for I agree with Judge Hoffman that “appellant ... should not be penalized for the trial court’s failure to obtain his consent.” Commonwealth v. Kinsey, supra, 249 Pa.Super. at 15, 375 A.2d at 734 (Hoffman, J., concurring). Absent an on-the-record consent, it cannot be said that a defendant could effect a knowing and intelligent waiver forever barring appellate review of his claims.

However, the trial court here, at the conclusion of the testimony and after announcing its verdict, rigorously followed the requirements of Pa.R.Crim.P. 1123(c) in delineating appellant’s rights thereunder. Specifically, the trial court explained to appellant that he had the right to file post-verdict motions within the ten-day period provided by the Rule. If not, appellant would lose the right to raise issues on appeal if he did not file these motions (N.T. 63-65). Thus, appellant was well aware of his option to file written post-verdict motions within the ten-day period prescribed by the Rule and the full implications of his failure to do so. Instead, he took his chances that the trial court would act favorably upon his oral request for post-trial relief by discharging him or, alternatively, granting him a new trial. Appellant gambled with his rights and lost. He cannot now be heard to complain to this court.

I wish to emphasize that I do not disavow the efficacy of Rule 1123(b)’s allowance of oral post-verdict motions. However, Rule 1123(b) must be read and considered in its proper context, not in a vacuum as the majority seems to have done. It is necessary to interpret Rule 1123(b) in terms of its waiver impact, in terms of our Supreme Court’s teaching in Commonwealth v. Philpot, supra, Commonwealth v. Waters, supra, and Commonwealth v. Blair, supra, that oral presentation does not suffice for the purpose of issue preservation on appeal and in light of the requirements of Commonwealth v. Gravely, supra, that only those issues appearing in written post-verdict motions are reviewable by an appellate court.

I would therefore affirm the judgment of sentence on the basis of waiver.

      . 18 Pa.C.S. § 2701.

      . 75 Pa.C.S. § 3742.

      . Pa.R.Crim.P. 1405(c) requires the sentencing court to advise the defendant in open court on the record, of his post-sentencing rights, including a caveat that only issues preserved in the trial court may be raised on appeal.