author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    645 A.2d 282
    John PILON, Jeffrey DeFrain and Donna DeFrain, H/W, Individually and as parents and natural guardians of minors Jennifer DeFrain and Julie DeFrain, Samuel Baker, Brad Boyer, Lori Stitt, Individually and as parent and natural guardian of minor Jennifer Stitt, Bruce Fritchman, and Kathy Fritchman, H/W, Individually and as parents and natural guardians of minor Eric Fritchman, Earl Finney and Betty Finney, H/W, Individually and as parents and natural guardians of minors Kimberly Elizabeth Finney and Christina Anne Finney, Debra Hess, Gene D. Moore, Individually and as parent and natural guardian of Gene A. Moore, Earl Klinger and Judith Klinger, H/W, Individually and as parents and natural guardians of minors Carol Klinger, John Klinger, and Laura Klinger, Tom Pienta and Debra Pienta, H/W, Individually and as parents and natural guardians of minor Amy Pienta, Dennis Rayson, John Ruchinski, Sr. and Joann Ruchinski, H/W, Individually and as parents and natural guardians of minors James A. Ruchinski and Mary A. Ruchinski, Sharon Stonewall, Individually and as parent and natural guardian of minors Emil P. Galgon, III, Jason M. Galgon, Cheryl L. Galgon and Patrick J. Stonewall, Barry Weller and Carol Weller, H/W, Carol Weller, as parents and natural guardians of minors Tammy Mercer and Darla Mercer, Thomas Fronczak and Sue Fronczak, H/W, Individually and as parents and natural guardians of minors Kendra Fronczak and Shama Fronczak, Brian Fick and Angela Fick, H/W, James Stock and Tina Stock, H/W, Individually and as parents and natural guardians of minors James Stock, Jr., Heidi Stock and David Stock, Randy Cronrath and Sherri Cronrath, H/W, Individually and as parents and natural guardians of minor Casey Cronrath and Denise Mariani, Appellants v. BALLY ENGINEERING STRUCTURES, Harry G. Crossley and Lawrence J. Patterson, Appellees.
    Superior Court of Pennsylvania.
    Argued March 30, 1994.
    Filed July 27, 1994.
    Petition for Allowance of Appeal Denied Dec. 21, 1994.

      Gerald J. Williams, Philadelphia, for appellants.
    Kimberly A. Brown, Pittsburgh, for Bally Engineering Structures, appellee.
    Linda A. McKay, Reading, for Crossley & Patterson, appellees.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

This is an appeal from a trial court order, entered August 17, 1993, by which an action was terminated for inactivity pursuant to Berks County Rule of Judicial Administration 1901 and Pa.R.J.A. 1901.

The order from which the instant appeal was filed did not enter a judgment of non pros. The order terminated the action for lack of activity pursuant to Pa.R.J.A. 1901. Although the effect of a judgment of non pros and an order terminating the action are virtually identical, each serves a slightly different purpose and entails a different procedure.

Pa.R.J.A. 1901(a) establishes policy in this Commonwealth and provides that “[wjhere a matter has been inactive for an unreasonable period of time, the [court], on its own motion, shall enter an appropriate order terminating the matter.” Subsection (b) directs that each court of common pleas shall be primarily responsible for implementing this policy and shall adopt local rules for such purpose. Subsection (c) establishes minimum standards.

Pursuant to Pa.R.J.A. 1901, the Court of Common Pleas of Berks County adopted a rule which requires the prothonotary, where there has been no docket activity for two years, to give notice to the parties that the action will be terminated without further notice unless the court, after hearing or stipulation, shall permit the case to remain active. The local rule, B.R.J.A. 1901, then provides as follows:

(d) Termination of a case under this rule shall be final and shall bar any further action thereon, except that if a party was served with the notice required by section (a) by publication, the party served by publication may petition the court to reactivate the case for good cause shown.

The Berks County Rule complies with the minimum standards adopted by the Supreme Court rule.

In the instant case, the trial court held an evidentiary hearing and thereafter entered an order terminating the action for inactivity. The order by the trial court was a final order which terminated the action. Such an order was immediately appealable. Neither a petition for post-trial relief nor a motion to remove the termination order was a condition precedent to the right of appeal. The local rule specifically provided that there should be no further action thereon in the trial court. This rule was consistent with Pa.R.J.A. 1901 and complied with the minimum standards established thereby. Pa.R.C.P. 3051 is inapplicable; it applies only to orders entering judgments of non pros. This court, therefore, will not burden the right of appeal from an order terminating the action by adding an unnecessary step in the trial court.

The facts, which are accurately summarized by the trial court, are as follows:

[Appellants] apparently leased trailer lots in the Woodland Mobile Home Park from former [appellee] Lawrence J. Patterson. [Appellants] retained counsel to file the instant lawsuit seeking damages for alleged property damage and personal injury to [appellants].
[Appellee] Harry G. Crossley answered the Complaint and initiated discovery from [appellants]. On October 4, 1989, Crossley’s first request for production of documents was served on [appellants’] counsel. It requested, among other things, evidence of the alleged medical problems, evidence of any expenses incurred by [appellants], any evidence of physical injuries, loss of use of the leased properties, and evidence that there had in fact been illegal disposal activities. Those activities were alleged in the Complaint to have occurred in the years from 1950 to 1975 — from eighteen to forty-three years ago. Those activities were alleged to have been done by' Gus Bales and the then operator of the farm, John Crossley. Both those individuals are deceased.
In the response to the discovery request dated December 4, 1989, [appellants] produced, among other things, their counsel’s letters to the U.S. Environmental Protection Agency (“EPA”) dated April 18, 1989 and July 11, 1989 and a letter to the Pennsylvania Department of Environmental Resources (“DER”) dated November 20, 1989. No documents were produced identifying any injuries, expenses, losses or claims by any [appellant], and none have been produced as of this day.
The last specifically identified communication between [appellants’] counsel and the EPA, a non-party, is alleged in the motion to have occurred on January 2, 1990. No evidence of that alleged contact, or any subsequent contact with EPA or DER has been produced by [appellants] despite the outstanding discovery requests.
The last alleged contact in the motion initiated by counsel for [appellants] and between him and counsel for any party in this case was December 6, 1989.

Thereafter, on January 12,1993, the deputy prothonotary sent a Notice of Termination to all counsel since there had been no record activity in this case for over three years. On March 12, 1993, the plaintiff-appellants filed a motion for a hearing to prevent the case from being terminated pursuant to Berks County Rule of Judicial Administration 1901. By order dated June 16, 1993, the trial court scheduled a hearing, and the hearing was held on July 21, 1993. By Order dated August 16, 1993, the court terminated the case for inactivity. This appeal followed.

Appellants contend the trial court abused its discretion by terminating the action in light of its character and the compelling reasons for the delay. These alleged compelling reasons included: the fact that the EPA had conducted an ongoing investigation of the relevant site, referring it for governmental enforcement action in 1992; appellant’s activities prior to the onset of delay; and finally, the pendency of several relevant statutes of limitations.

In cases such as this, an order terminating an action will not be reversed on appeal absent a manifest abuse of the trial court’s discretion. Cf. Gates v. Servicemaster Com. Service, 428 Pa.Super. 568, 570-72, 631 A.2d 677, 678 (1993). An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will. Stock v. Amott, 415 Pa.Super. 113, 118, 608 A.2d 552, 554 (1992).

The law is settled that it is plaintiff, not defendant, who bears the risk of not acting within a reasonable time to move a case along. Pennridge Elec. v. Souderton School, 419 Pa.Super. 201, 209, 615 A.2d 95, 99 (1992). “If plaintiffs counsel finds [himself] faced with delays created by others, [he] must take action to move the case forward, such as filing praecipes for argument on undecided motions, moving to compel [his] opponent to file a certificate of readiness, or requesting a conference with the judge as provided by local rule to have the case put on the trial list.” Id.

The period of docket inactivity in this case lasted from December 6, 1989, when appellants sought a request for production of documents, to January 12, 1993, when the deputy prothonotary sent a Notice of Termination to all counsel. We have reviewed the tendered explanation for this lengthy delay and conclude that appellants failed to present the trial court with any compelling reason to justify the lack of activity for more than three years. Concerning the alleged ongoing investigation by the EPA and the DER, we agree with the trial court’s holding that:

The actions of the EPA and/or DER on the neighboring farm after the date of suit are irrelevant at best. Whatever these agencies do with respect to that farm in terms of cleanup has no bearing on [appellants’] causes of action or their alleged injuries or damages. The fact that [appellants’] counsel may have had unspecified and undocumented contacts with regulatory agencies with respect to a nearby property is no basis for concluding that [appellants] have proceeded with reasonable promptitude.

The mere fact that the EPA and the DER had an alleged ongoing investigation of the premises, moreover, was no excuse for failing to produce any evidence of appellánts’ alleged injuries. Presumably, if appellants had, in fact, suffered any personal or property injuries, they would have presented such evidence during the discovery process. However, in response to appellees’ request for production of documents requesting, inter alia, evidence of the alleged medical problems, evidence of any expenses incurred by appellants and any evidence of physical injuries, appellants produced no documentation whatsoever concerning the same. Appellants merely produced their counsel’s letters to the EPA and the DER. Given appellants’ lack of evidence, along with their irrelevant contention that the EPA and the DER were involved in an alleged ongoing investigation, the trial court could properly conclude that they failed to present any compelling reason for failing to move the case forward.

Appellants next contend that the trial court abused its discretion by failing to consider their activities prior to the onset of delay. However, the discovery activities undertaken by appellants prior to this three year delay were irrelevant. This, in and of itself, is not a “compelling reason” to justify a delay for more than three years; and, therefore, we conclude this argument is meritless.

Finally, appellants maintain, the court abused its discretion by failing to consider several relevant statutes of limitations. However, it was inactivity and not any statute of limitations which caused the court to terminate this action. Whether the action was or was not otherwise barred by a statute of limitations, therefore, was not controlling of the court’s decision to terminate.

Appellants finally contend the trial court erroneously misconstrued the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), and misunderstood its applicability to this case. Appellants premise this final contention on the court’s refusal to consider the statute of limitations applicable to the case under the HSCA. However, appellants assumptions are unfounded. Whether or not other courts have held that the HSCA provides a private cause of action for “response costs” and whether such an action requires prior notice under the “citizen suit” provision of the HSCA is irrelevant to whether the trial court abused its discretion by terminating this action for lack of activity. Because the trial court did not abuse its discretion, its order will be affirmed.

Order affirmed.

OLSZEWSKI, J., files a Dissenting Opinion.

OLSZEWSKI, Judge,

dissenting.

I respectfully dissent from the majority’s decision to address this appeal on the merits. I disagree with the majority’s conclusion that Pennsylvania Rule of Civil Procedure 3051 is inapplicable to this case. As a result, I would quash the appeal because appellants failed to file a petition to open the order terminating the case.

Pa.R.J.A. 1901(a) and an analogous Berks county local rule entitle the court to enter an order terminating a case for lack of activity on the docket. I understand the majority’s position that this type of termination differs in form from a judgment non pros, which is generally entered upon praecipe or petition of a party. I fail to see, however, why this distinction renders Pa.R.C.P. 3051, which requires all relief from a judgment non pros to be sought by way of petition, inapplicable to termination orders. The majority acknowledges that the effect of these two procedural devices is “virtually identical,” majority opinion at p. 230, and I would argue that their purposes are also identical: to rid the judicial system of cases that have, for whatever reason, not been diligently pursued by the party who initiated the action. Both devices rid the court’s docket of stale cases, serve a repose interest on the part of persons required to answer a complaint, and promote resolution of cases in the most expeditious manner possible.

As I understand Pa.R.C.P. 3051, moreover, it is designed to provide a uniform rule for all cases that are terminated for lack of activity. The comment to the rule states:

The rule adopts a uniform procedure although there are different types of judgments of non pros. For example, there is the judgment of non pros that is entered under rule 1037(a) for failure to file a complaint. In such an instance, the judgment is entered upon praecipe following a rule to file a complaint and there is no court involvement in the process. In contrast, there is the judgment of non pros that is entered by the court as a sanction under Discovery Rule 4019(c). This judgment of non pros is entered only after the court has heard the parties on the record.
The rule will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing. Where the court has not participated in the entry of the judgment, the rule will provide a procedure for court involvement and the making of a record which the appellate court will be able to review. Where the court has entered a judgment of non pros following a hearing, the rule will provide the court with an opportunity to review its prior decision. However, if the court is certain of its prior decision, it will be able to quickly dispose of the matter since the parties have already been heard on the issues.

Pa.R.C.P. 3051, Explanatory Comment — 1991.

It strains logic to conclude that even though Rule 3051 creates a uniform procedure for “different types” of judgments non pros, it does not contemplate orders which finally terminate a case for lack of activity. There is no question that the two final dispositions are identical and serve nearly — if not totally — identical purposes. I would thus conclude that the language of Berks County Local Rule 1901(d) which makes a termination order “final” barring any further action on the case, simply acknowledges that a termination order is tantamount to an actual non pros judgment. It should not be interpreted to mean, however, that the order is appealable. A party seeking relief from the entry of a final order terminating the case under Pa.R.J.A. 1901 should follow the same procedure required of any other party suffering a judgment for failing to pursue his or her case. He or she should petition to open the judgment.

I would therefore recommend quashing this appeal and, consequently, must respectfully dissent.

      . A judgment of non pros, for example, should not be entered unless delay has caused prejudice. See: Abraham Zion Corp. v. After Six, Inc., 414 Pa.Super. 611, 615, 607 A.2d 1105, 1107 (1992), allocatur denied, 533 Pa. 628, 621 A.2d 576 (1993); Neshaminy Constructors, Inc. v. Plymouth Township, 132 Pa.Commw. 229, 234, 572 A.2d 814, 817 (1990). An order terminating an action for inactivity, however, is intended to permit a trial court to rid its docket of stale cases. Such an order may be entered by a court sua sponte after an unreasonable period of inactivity even though there may be no prejudice to the defendant.

        . Appellants suggest that after a careful analysis of the reasoning and holding in Penn Piping, Inc. v. Ins. Co. of North Amer., 529 Pa. 350, 603 A.2d 1006 (1992), any presumption of prejudice should be framed within the parameters of the applicable statute of limitations.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    645 A.2d 839
    Stella HARDY, Appellant, v. SOUTHLAND CORPORATION and Dalstore Properties and Yousef Maan Sheikh.
    Superior Court of Pennsylvania.
    Argued January 4, 1994.
    Filed June 28, 1994.
    Reargument Denied Aug. 25, 1994.
    Petition for Allowance of Appeal Denied Dec. 1, 1994.

      William Derham, Jr., Philadelphia, for appellant.
    C.J. Lyford, Philadelphia, for appellees.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order denying appellant’s motion for removal of non-suit and granting of a new trial. Appellant raises one issue, whether the court erred in granting non-suit on the basis of the assumption of the risk defense. We reverse and remand.

Appellant brought suit to recover damages for an injury sustained at a 7-Eleven store owned by appellees. According to appellant’s testimony she entered appellees’ store on a day it had been raining, stepped onto a floor mat located just inside the doorway and, on her first step off the mat, fell on' the linoleum floor. Appellant admitted that she had glanced at the floor immediately prior to stepping onto it and noticed that it appeared wet. Based upon this admission the trial court concluded that appellant had “assumed the risk” of the injury she sustained and, therefore, was precluded from recovery. The court, based upon this position, granted appellees’ motion for non-suit. Appellant moved the court for the removal of the non-suit and for a new trial, but was denied relief. This appeal followed.

For some time, it appears, there has been a degree of confusion or difficulty surrounding the application of the assumption of the risk doctrine. This has become even more prevalent since the introduction of comparative negligence concepts. Although the exact status of the assumption of the risk doctrine as valid law in Pennsylvania is less than clear, we believe that a proper application of the doctrine does not allow appellee an affirmative defense under the facts presented here. Thus, we will first provide an analysis of the case under the assumption of the risk doctrine.

In Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983), Judge Hoffman expounded on the nature of the assumption of the risk doctrine. Judge Hoffman wrote:

assumption of risk as a separate defense has a distinct character. All voluntary risk-taking that can be described by the ambiguous phrase “assuming risk” does not constitute the defense. Rather, all elements of the defense — that the plaintiff “fully understands” the specific risk, “voluntarily chooses” to encounter it, and “under circumstances that manifest a willingness to accept it” — must be “demonstrated] in fact” before the theory will be submitted to the jury.
A particularly difficult element of the defense is in defining “circumstances that manifest a willingness to accept” the risk.... Assumption of the risk “reflects the individualism of the law” which allows people to make their own choices and does not undertake to “protect [them] from the effects of [their] own ... voluntary actions.”

316 Pa.Super. at 577-578, 463 A.2d at 1048-49, (Citations omitted.) According to Fish v. Gosnell, the essence of the defense is not fault “but that the plaintiff changed his position. Before the injury, he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived.” 316 Pa.Super. at 578, 463 A.2d at 1049. Most applicable to the present case was the following analysis:

[preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of the risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the right to complain, but rather is better judged by its reasonableness, that is, by negligence principles.
[T]he practical difference [between assumption of the risk and contributory negligence] is in the degree of proximity to the particular harm. The preliminary conduct of getting into a dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent.

Id.

When this explanation is considered the decisions on, or implicating, assumption of the risk, appear to have a greater consistency. For instance, when a patron at a baseball game or hockey game complains when struck with a foul ball or a flying puck, a classic example of the type two assumption of the risk, (see Restatement Second of Torts 496A), the patron is deemed to have assumed the risk of that occurrence and is precluded recovery for the patron knows, or is deemed to know, that such a risk is inherent in attending the game. Similarly, when an individual actually participates in a rather inherently dangerous activity with the one who is sought to be held accountable for the sustaining of injury, the doctrine will prevent recovery as was found in Howell v. Clyde, 538 Pa. 151, 620 A.2d 1107 (1993).

In contrast, in Fish v. Gosnell, the court found no reason to give an assumption of the risk charge where a plaintiff, while plowing snow with a garden tractor, was struck head-on by the defendant’s automobile. The plaintiff had seen the defendant’s headlights approaching but did not attempt to evade them as he believed that the approaching car was being driven by a practical jokester friend of his. In Handschuh v. Albert Development, 393 Pa.Super. 444, 574 A.2d 693 (1990), we found the denial of an assumption of the risk charge appropriate in a case where a contractor was fatally injured in a ditch collapse. The appellant had argued that the decedent, as a contractor, was aware of the risk of, and consequences of, a ditch collapse and that his failure to completely leave a ditch when a seam in the wall of the ditch developed and a warning was yelled constituted an assumption of the risk of a collapse. We disagreed and concluded the case was appropriately tried under comparative negligence principles.

Considering now the facts of the present case, it appears that the plaintiff entered a 7-Eleven store on a day when it had been raining. When appellant had stepped inside the store she stepped on a small section of carpeting. On her first step off the carpeting and onto the linoleum floor she slipped on the floor and fell. It appears that the linoleum surface was wet and precipitated the fall. The testimony also establishes that just prior to stepping onto the linoleum appellant had glanced at the floor and noticed that it was wet. However, the testimony does not establish that appellant ever interrupted her normal walking gait, noticed the condition of the floor, pondered it for a moment and then proceeded anyway realizing that it may be slippery. Indeed, when asked how much time elapsed between the time she glanced at the floor and the time she stepped on it, appellant stated “I had already stepped out. I didn’t notice and stand there and watch the floor. I just proceeded to fall.” R. 53A. Analyzed from this standpoint, we do not believe appellant assumed a known risk under circumstances that indicates an abandonment of a right to complain. The “preliminary conduct” of walking into the store is not such that should be regarded as accompanied with assuming the risk of a fall on a slippery floor. Appellant did not become aware of the “known danger” until just before she took the step which caused her injury. Indeed, in order to avoid the danger it might have been necessary for her to stop herself in mid-stride. In our opinion these are not circumstances to which the doctrine should apply as an affirmative defense. Rather, these circumstances invite comparison of negligence under applicable law.

As mentioned above, the exact status of the assumption of the risk doctrine is somewhat uncertain in light of recent decisions of our Supreme Court. In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), the doctrine narrowly escaped banishment from the repertoire of defense lawyers when a plurality of our Supreme Court sought to abolish the doctrine in most cases. In fact, the lead opinion in that case actually purports to abolish the doctrine but failed, by one vote, to garner a clear majority of the Court. The reasoning set forth for the plurality’s position was the complexity of analysis in assumption of the risk cases and the fact that the policies served by the doctrine were adequately served by other aspects of negligence law, including contributory negligence and duty analyses.

Two years later, in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), the court considered a slip and fall case occurring on a patch of ice in a parking lot of a chiropractor’s parking lot. There the appellee was aware she had parked next to a patch of ice prior to alighting from her vehicle and also that there were several other spots available that were free of ice. Nevertheless, rather than moving to another parking spot, appellee exited the vehicle and traversed the icy area. On her return to her vehicle she slipped and fell, sustaining injury. In discussing the voluntary encountering of a known and obvious danger the court opined:

[i]t is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.

503 Pa. 187, 469 A.2d at 125. However, Carrender essentially sidestepped the doctrine of assumption of the risk, at least as an affirmative defense, instead interjecting it into a focus on the duty side of the negligence equation. Thus, the Court provided no additional hint as to the status or favor of assumption of the risk as an affirmative defense.

Most recently, in the case of Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993), two members of our Supreme Court, the two dissenters, indicated a belief that the doctrine of assumption of the risk no longer has any place in our law and stated they would eliminate it as an affirmative defense altogether. Two other Justices, which comprised the lead opinion in the case, favored a modification of the doctrine while two others concurred in result only and did not express any opinion on the vitality of the doctrine.

Footnote 10 of the lead Howell opinion states that “this holding ..., in essence, abolishes assumption of the risk as an affirmative defense, ...” but excepts cases of express assumption of the risk, cases brought under a strict liability theory, or cases where the assumption of the risk is specifically preserved by statute. However, rather than a true abolition of the doctrine, the lead opinion really retains the doctrine, but “in a modified form.” The Howell decision purports to retain the doctrine as a part of a duty analysis. Under Howell, the trial court is obligated to review the factual scenario and determine whether “[u]nder those facts, ... the defendant, as a matter of law, owed plaintiff no duty of care.” 163, 620 A.2d at 1113. Of course, this position is not entirely new either. In Rutter, it was noted that cases which had evoked assumption of the risk to deny a plaintiffs recovery could have been decided in similar fashion by “the court’s determination that, as a matter of law, defendant owed plaintiff no duty, ...” 496 Pa. 612, 437 A.2d at 1209.

In light of the various pronouncements set forth above, the doctrine of assumption of the risk, at least as an affirmative defense, must be regarded as being in a rather precarious and confusing state of being. Despite two lead opinions purporting to abolish assumption of the risk, neither pronouncement gained a majority of the Court. Thus, in effect, the doctrine has not been formally abolished in Pennsylvania. However, with two votes to abolish it, and two votes to modify its application, it cannot be argued that its original applications are now in favor with a majority of the court. Thus we are presented with an interesting question of stare, decisis, that being, whether a legal position which clearly cannot command a majority of the Supreme Court should be applied despite the absence of an outright reversal.

The Third Circuit Court of Appeals recently was faced with such a situation in Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3rd Cir.1991). In that case, a point of controversy revolved around which standard of scrutiny governed a review of abortion provisions. The court stated that at times a Supreme Court’s decision revealed that an earlier established standard no longer commanded the allegiance of a majority of the Justices. Consequently, a lower court was obligated to determine whether to apply the old standard, or, if not, which standard should apply. The Court found guidance in the United States Supreme Court’s decision of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), a case involving obscenity. After reviewing Marks and the Court’s discussion of what law applied in the case of a splintered Court, the Third Circuit concluded that “a legal standard endorsed by the Court ceases to be the law of the land when a majority of the Court in a subsequent case declines to apply it, even if the majority is composed of Justices who disagree on what the proper standard should be.” Id., 947 F.2d at 693. In such situations, it was determined, the law to be applied was that which the Justices concur upon on the narrowest grounds. Id.

Applying this analysis to the present case, it would seem that we would be obligated to apply the modified assumption of the risk doctrine as set forth in the lead Howell opinion. In Howell, two Justices favored abolishing assumption of the risk altogether. The two Justices authoring the lead opinion favored a due facto modification by incorporating the doctrine into a duty analysis, and two Justices concurred in that result. Thus, the lead opinion would seem to espouse the approach most narrow in scope that can gain at least a concurrence of the majority of the Court.

Applying Howell to the present case, however, leads us to the very same conclusion we reached under the doctrine itself. Howell states the trial court is obligated to review the factual scenario and determine whether “[u]nder those facts, ... the defendant, as a matter of law, owed plaintiff no duty of care.” 533 Pa. 163, 620 A.2d at 1113. Looked at from this point of view we are obligated to determine whether a retail store has a duty to its patrons to keep its floors safe for their passage. Were we to uphold the trial court’s decision here, the message we would apparently send to merchants via this opinion is that they have no duty to keep their floors dry, or, for that matter, free from other dangers, as long as the condition is noticeable to customers a split second before encountering it. Ostensibly then, a merchant would never have to expend energy to keep a floor free of water or slippery substances as long as one of those handy little yellow cones imprinted with the words “Caution. Wet Floor.” is conspicuously displayed. Somehow this does not appear to be a sound balancing of policy interests in the current legal context, nor does it seem to encompass the policy behind assumption of the risk in the first instance.

Nor do we believe that under the circumstances presented here, a merchant can be said to have no duty to keep its floors dry or otherwise safe for its patrons to walk upon. A merchant invites the public to come into its store so that the merchant can make a profit. The obligation to keep its floors safe is well recognized.

For the above reasons, we reverse the order appealed from and remand for a new trial.

KELLY, J., concurs in the result.

      . In Howell, guests at a party expressed interest in firing a fireworks cannon owned by the host. The appellant there actually provided the gunpowder used to set the cannon off and was struck with a projectile or piece of the cannon when the cannon exploded. The appellant, by providing the gunpowder and engaging in the firing of the cannon, was deemed to have assumed the risk of such an obviously dangerous endeavor and was, therefore, precluded from recovering against the homeowner/host.


author:
CIRILLO, Judge:
      WIEAND, Judge,
      TAMILIA, Judge,

text:
    645 A.2d 843
    MANOR BUILDING CORPORATION, a Massachusetts Corporation, as Successor in Interest to Westinghouse Credit Corporation, a Delaware Corporation, and Continental Realty Credit, Inc., a Massachusetts Corporation v. MANOR COMPLEX ASSOCIATES, LTD., a Pennsylvania Limited Partnership, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1994.
    Filed July 18, 1994.

      Steven T. Shreve, Pittsburgh, for appellant.
    Robert L. Byer, Pittsburgh, for appellees.
    Before CAVANAUGH, WIEAND, McEWEN, CIRILLO, BECK, TAMILIA, KELLY, POPOVICH and SAYLOR, JJ.
   CIRILLO, Judge:

Appellant Manor Complex Associates, Ltd. (Manor) appeals from an order of the Court of Common Pleas of Allegheny County denying its motion to strike the confessed judgment entered against it on a second mortgage security agreement. The judgment was in the amount of $4,832,572.82. We affirm.

On April 28, 1988, Manor executed a security agreement granting a second mortgage to ComFed Savings Bank as security for a $5,500,000.00 note. Manor also executed an assignment of rents and leases to ComFed in connection with that second mortgage. The following year, ComFed assigned its interest in the mortgage to appellee Continental Realty Credit, Inc. (Continental). Continental then assigned the mortgage and rents and leases to appellee Westinghouse Credit Corporation (Westinghouse). In its complaint in confession of judgment, Continental averred that it retained an ownership interest in the mortgage. The language in the assignment, however, reads as follows:

Continental Realty Credit, Inc., ... holder and owner by Assignment of even date recorded herewith of: (a) a Mortgage-Security Agreement to it from Manor Complex Associates, Ltd., ... and (b) an Assignment of Rents and Leases executed in connection therewith ... hereby assigns and transfers all of Continental’s right, title and interest in the Mortgage and Assignment to Westinghouse Credit Corporation ..., without recourse.

Assignment of Mortgage and Assignment of Rents and Leases, R.28a.

On December 27, 1990, Manor defaulted on the second mortgage and, pursuant to the terms of the mortgage which included a confession of judgment/warrant of attorney clause, Continental and Westinghouse filed a complaint in confession of judgment against Manor on April 8, 1991. Judgment was entered that same day.

On April 11, 1991, Manor filed for Chapter 11 bankruptcy, but on January 29, 1992, the case was dismissed effective March 16, 1992. Thereafter, on March 16, 1992, Continental and Westinghouse assigned the rents and leases as well as the April 8, 1991 judgment to appellee Manor Building Corporation [hereinafter referred to as MBC]. On April 20, 1992, appellant Manor filed a petition to strike the judgment.

In its petition, Manor alleged that the judgment failed to comply with Pennsylvania Rules of Civil Procedure 2002(a) (pertaining to real party in interest) and 2954 (providing that judgment be entered in the name of the holder, assignee, or other transferee). Manor argued, therefore, that there existed a defect on the record and that the judgment should be stricken. The trial court disagreed and denied the petition. Manor filed this appeal, and now presents the following claims:

1. Whether Plaintiffs Continental and Westinghouse properly confessed judgment against Defendant Manor in accordance with Pa.R.C.P. 2954?

2. Whether Plaintiffs Continental and Westinghouse carried their burden of proving their interest in the note and mortgage?

3. Whether the inclusion in the record of contradictory averments constitutes a defect on the face of the record?

4. Does an assignment attached to a complaint constitute part of the record?

5. Whether contradictory averments of fact introduced into a record must all be accepted as true by the court?

As the trial court noted, Manor decided to forego a petition to open and proceeded solely on a motion to strike. See Parkview Consumer Discount Co. v. Goss, 231 Pa.Super. 50, 332 A.2d 827 (1974). We, therefore, confine our review accordingly.

A motion to strike a judgment operates as a demurrer to the record and will only be granted if a fatal defect or irregularity appears on the face of the record or judgment. DeCoatsworth v. Jones, 536 Pa. 414, 639 A.2d 792 (1994); Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 511 A.2d 761 (1986); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985). The defect which is a matter of record or which appears from the face of the judgment must be alleged in the application. Albert Einstein Medical Center v. Forman, 212 Pa.Super. 450, 243 A.2d 181 (1968). Further, “being in derogation of important rights on behalf of the debtor, any ambiguity in the warrant of attorney authorizing confession of judgment must be resolved against the party in whose favor the warrant is given.” Kline v. Marianne Germantown Corp., 438 Pa. 41, 263 A.2d 362 (1970).

A judgment entered by confession must be self-sustaining and may not be entered when the court must consider matters outside the instrument in order to support the judgment. Colony Federal Savings & Loan Assoc, v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 361 A.2d 343 (1976). When a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record. Parliament Industries, Inc. v. Wm. H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983). See generally Goodrich-Amram 2d §§ 2951-2954. The facts averred in the complaint are to be taken as true; if the factual averments are disputed, the remedy is by a proceeding to open the judgment and not by a motion to strike. Van Arkel & Moss Properties, Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980).

Manor argues that judgment in favor of both Continental and Westinghouse was improper and contrary to Pa.R.C.P. 2954 as Continental did not retain an interest in the mortgage when it assigned the instrument to Westinghouse. We disagree.

A negotiable instrument is an instrument capable of transfer by endorsement or delivery. Negotiability provides a means of passing on to the transferee the rights of the holder, including the right to sue in his or her own name, and the right to take free of equities as against the assignor/payee. See Fischbach & Moore v. Philadelphia National Bank, 134 Pa.Super. 84, 3 A.2d 1011 (1939). The purpose of the Commereial Code is to enhance the marketability of negotiable instruments and to allow bankers, brokers, and the general public to trade in confidence. See Uniform Commercial Code, Article 3, Negotiable Instruments, 13 Pa.C.S. §§ 3101 et seq. See also First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377 (1941). As a matter of sound economic policy, the Commercial Code encourages the free transfer and negotiability of commercial paper to stimulate financial interdependence.

The Commercial Code declares that the negotiable character of an instrument, otherwise negotiable, is not affected by a provision which authorizes a confession of judgment on the instrument if it is not paid when due. See 13 Pa.C.S. § 3104(a). See also Home Credit Co. v. Preston, 99 Pa.Super. 457 (1930). Compare Green v. Dick & Shope, 72 Pa.Super. 266 (1919) (a warrant of attorney, authorizing confession of judgment “at any time after the above note becomes due,” does not affect the negotiability of the instrument) with Bittner v. McGrath, 186 Pa.Super. 477, 142 A.2d 323 (1958) (note containing warrant to confess judgment “at any time” is a nonnegotiable instrument).

A judgment by confession may be entered only in the name of a holder or, unless expressly forbidden in the instrument, in favor of the assignee or other transferree. Pa.R.C.P. 2951, 2954. The facts which entitle a real party in interest, other than the original payee of the instrument, to confess judgment thereon must appear of record, generally in the complaint for confession of judgment. See Pa.R.C.P. 2952(c) (a statement of assignment of the instrument shall be included in the complaint for confession of judgment). Otherwise, the judgment will be stricken. Weitzman v. Ulan, 304 Pa.Super. 204, 450 A.2d 173 (1982); Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 363 A.2d 1229 (1976); cf. Testa v. Lally, 161 Pa.Super. 478, 55 A.2d .552 (1947). “Our concern, therefore, is whether the record as filed by [Continental and Westinghouse] is adequate to sustain the judgment or is defective in some way.” Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 468, 577 A.2d 636, 638 (1990). With these principles in mind, we will review the complaint and instrument before us.

The following are the relevant allegations in the complaint in confession of judgment:

5. The Mortgage was assigned to Continental by ComFed Savings Bank (“ComFed”) by Assignment of Mortgage and Assignment of Rents and Leases dated April 20, 1989 (the “Assignment”). Continental, pursuant to a collateral assignment dated April 20,1989 (the “Collateral Assignment”) assigned the Mortgage to Westinghouse as collateral pursuant to a Revolving Credit and Security Agreement dated April 18, 1989, although reserving its ownership interest therein.
7. Section 29 of the Mortgage authorizes judgment to be confessed against Defendant [Manor] in the event of a default under a certain note (the “Note”), issued by Defendant in favor of ComFed, the Mortgage or any of the Loan Documents, as that term is defined under the Mortgage.
8. Default was made by Defendant in the payment of the installment of THIRTY-SEVEN THOUSAND FIVE HUNDRED EIGHTY AND 21/100 ($37,580.21) Dollars due on December 27,1990 and in the payment of all subsequent installments, whereby the Mortgage is in default and all indebtedness under the Note is immediately due and payable by the Defendant as set forth in the Mortgage.

Complaint, ¶¶ 5, 7, 8.

The confession of judgment clause in the Second Mortgage Security Agreement between Manor, the Mortgagor, and ComFed, the Mortgagee, provides:

17. In the event of default ... the entire principal and interest due on the Note hereby secured together with any amount paid or expended by the Mortgagee under the terms of this Mortgage or under any of the foregoing other agreements or obligations, shall, at the option of the Mortgagee, become immediately due and payable.

18. A. The word “Mortgagor,” as used herein, shall mean the person, persons, entity and/or entities named at the beginning of this instrument as the Mortgagor, and any subsequent owner or owners of the equity of redemption of the mortgaged premises or the Personal Property....

B. The words “Holder” or “Mortgagee,” as used herein, shall each mean the Mortgagee named at the beginning of this instrument, and any subsequent holder or holders of this Mortgage.

* * * * * *

29. Upon the occurrence of a default hereunder, ... the Mortgagor hereby irrevocably authorizes and empowers any attorney of record, or the Prothonotary or Clerk of any court in the Commonwealth of Pennsylvania or elsewhere, to appear for the Mortgagor in any such court at any time, and from time to time, and therein to confess or enter judgment against the Mortgagor for the full amount of the indebtedness secured hereby as such indebtedness is evidenced by an affidavit signed by a duly authorized designee of Mortgagee setting forth the amount of such indebtedness____

Continental and Westinghouse alleged the assignment from ComFed to Continental in their complaint. They also alleged the collateral assignment from Continental to Westinghouse, specifically averring the following in paragraph 5: “Continental ... assigned the Mortgage to Westinghouse as collateral pursuant to a Revolving Credit and Security Agreement dated April 18, 1989, although reserving its ownership interest therein.” Continental pledged the mortgage to Westinghouse; Continental retained an ownership interest in the mortgage and Westinghouse was granted a security interest. These facts were verified by both Continental and Westinghouse.

Although not required, Continental and Westinghouse attached to their complaint a copy of the assignment from ComFed to Continental and a copy of the collateral assignment from Continental to Westinghouse. See Pa.R.C.P. 2952(c); Brown v. Esposito, 157 Pa.Super. 147, 42 A.2d 93 (1945); see also Weitzman, supra. Manor contends that the statement of assignment in the complaint, wherein Continental reserves its ownership interest in the Mortgage, is contradicted by the language in the collateral assignment and, therefore, the judgment should have been stricken. We disagree. We do not find that the assignment is necessarily inconsistent with the allegation in the complaint that an ownership interest was retained. Further, Manor’s argument presumes that the attachment, the collateral assignment, takes precedence over the factual averments in the complaint.

“The facts averred in the complaint in confession of judgment are to be taken as true; if the factual averments are disputed, the remedy is by a proceeding to open the judgment and not by a motion to strike.” Van Arkel & Moss Properties v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980). Here, despite the fact that the assignment executed by Continental to Westinghouse was attached to the complaint, the facts in the complaint take precedence in these proceedings. Id. Had Manor wished to attack the facts averred in the complaint, it was required to go beyond the face of the record and petition the court to open the judgment. See DeRose v. Lombardi, 413 Pa. 258, 196 A.2d 336 (1964) (questions of fact must be resolved by a petition to open); see also Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968).

We are, therefore, convinced that Continental is a real party in interest and was authorized to confess judgment against Manor. See Brown et al. v. Esposito, 157 Pa.Super. 147, 42 A.2d 93 (1945) (assignees suing in their own name are not required to set out assignment verbatim or attach a copy of assignment as an exhibit to their pleading; it is sufficient if they state facts and date of assignment and parties thereto). Cf. Fourtees, supra (confessed judgment stricken where there was no evidence on the record that appellee was the real party in interest).

Additionally, we point out that in a cause where the sole defense is payment, Manor has not disputed the default nor alleged that it has cured the default. Instead, Manor has attempted to contest on the grounds of standing. In our view, the dispute over which creditor ought to be paid in these circumstances is a matter for the creditors to discern at distribution. We view Manor’s tactics as an undertaking in delay, the type of delay which not only stalls execution, but which inflates the cost of borrowing money and chokes the policies of our Commercial Code. This is especially true since interest on the note and mortgage ceases when the judgment is entered on the bond and warrant.

For the foregoing reasons, we find that the attachment of the collateral assignment to the complaint is not a fatal defect on the face of the record. DeCoatsworth, supra. Accordingly, we affirm the trial court’s order denying Manor’s petition to strike the judgment.

Order affirmed.

CAVANAUGH, McEWEN, BECK, KELLY, POPOVICH and SAYLOR, JJ., join.

WIEAND, J., files a concurring opinion in which McEWEN, BECK and KELLY, JJ., also join.

TAMILIA, J., files a dissenting opinion.

WIEAND, Judge,

concurring:

I concur fully in the Court’s decision to affirm the learned trial court’s order refusing to strike the judgment. I write separately for the purpose of noting my disagreement with the current notion that a motion to strike a judgment is discretionary with the trial court. As the author of the majority opinion correctly observes, “[a] motion to strike a judgment operates as a demurrer to the record and will only be granted if a fatal defect or irregularity appears on the face of the record.” See: Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 599, 511 A.2d 761, 763 (1986); Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983). This is a legal issue. A motion to strike, therefore, is not an appeal to the equitable powers of the court; and it is not discretionary with the court. If the record is not self-sustaining, the judgment must be stricken. Franklin Interiors v. Wall of Fame Management Co., Inc., supra at 600, 511 A.2d at 763. The flip side of the rule requires that a motion to strike a judgment be denied when there is no defect apparent on the face of the record. It follows as clearly as summer follows spring that a trial court’s disposition of a motion to strike a judgment can be reviewed only for error of law. Therefore, an appellate court must conduct its own examination of the record to determine whether the judgment is patently defective. In conducting, such review, the appellate court has no greater discretion than the trial court. The issue to be decided is a pure issue of law.

In this respect, a motion to strike a judgment must be distinguished from a motion to open a judgment. It is the motion to open judgment which is an appeal to the equitable powers of the court, and a court’s decision thereon will not be reversed on appeal absent an abuse of discretion.

My review in the instant case persuades me, for reasons well stated in the majority opinion, that in refusing to strike the judgment the trial court did not commit an error of law. Therefore, I agree that its order should be affirmed.

McEWEN, BECK and KELLY, JJ., join.

TAMILIA, Judge,

dissenting:

For the reasons set forth below, I respectfully dissent to the majority Opinion affirming the May 18, 1992 Order denying Manor Complex Associates, Ltd.’s motion to strike the $4,832,-572.82 confessed judgment entered against it on a second mortgage security agreement. A summary of all transactions and proceedings preceding this appeal follows.

On April 28, 1988, appellant executed a security agreement granting a second mortgage to ComFed Savings Bank as security for a $5,500,000 note. Manor also executed an assignment of rents and leases to ComFed in connection with the second mortgage. On April 20, 1989 ComFed assigned its interest in the mortgage to appellee Continental Realty Credit, Inc. (Continental) and, in turn, Continental assigned the mortgage and rents and leases to appellee Westinghouse Credit Corporation (Westinghouse). Continental avers, however, it retained an ownership interest in the mortgage. On December 27, 1990, Manor defaulted on the second mortgage and, pursuant to the terms of the mortgage which included a confession of judgment/warrant of attorney clause, Continental and Westinghouse filed a complaint in confession of judgment against Manor on April 8,1991 and judgment was entered that same day. On April 11, 1991, appellant filed for Chapter 11 bankruptcy, but by Order dated January 29, 1992, the case was dismissed effective March 16, 1992. On March 16, 1992, Continental and Westinghouse assigned the rents and leases as well as the April 8, 1991 judgment to appellee Manor Building Corporation. On April 20, 1992, appellant filed its petition to strike judgment, the denial of which is the subject of this appeal.

A motion to strike a judgment operates as a demurrer to the record and unless a fatal defect appears on the face of the record, the motion will not be granted. Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985). When a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record. Parliament Industries, Inc. v. Wm. H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983). Appellant argues judgment in favor of both Continental and Westinghouse was improper and contrary to Pa.R.C.P. 2954 as Continental did not retain an interest in the mortgage when it assigned the instrument to Westinghouse. For the reasons set forth below, I agree with the appellant’s argument and, therefore, would vacate that portion of the April 8, 1991 judgment entered in favor of appellee Continental.

Although paragraph 5 of appellees’ complaint for confession of judgment avers Continental retained an interest when the mortgage was assigned to Westinghouse, the assignment executed by Continental to Westinghouse without recourse and attached to the complaint directly contradicts this averment. Granted, the appellees were not required to attach said assignment, as accurately stated by the majority and the trial court, but because they chose to attach a copy of the legally binding document to their complaint, the assignment thereby became part of the record and subject to the Court’s scrutiny. Because appellees have provided no evidence to contradict the assignment executed without recourse, other than their naked averment to the contrary, the issue of who has standing to confess judgment is clearly a matter of law within this Court’s scope of review. The record reveals Continental assigned and transferred “all of Continental’s right, title and interest in the Mortgage and Assignment [of rents and leases] to Westinghouse Credit Corporation ... without recourse,” and, therefore, it is not a holder, assignee or transferee of the note and not entitled to judgment. However, for the aforementioned reasons and those which follow, I would find the record did establish appellee Westinghouse’s interest in the note which the mortgage security agreement secures.

The mortgage provided in the event of default the money owed on the note, mortgage or any other loan documents secured thereby (mortgage ¶ 29) would become, at the option of the mortgagee, immediately due and payable. The record established Westinghouse as holder of an interest in the mortgage by reason of the April 20, 1989 assignment from Continental. The complaint identified Westinghouse’s rights under the mortgage and the holder’s right to a confessed judgment upon default of the mortgagor, and averred appellant had defaulted. Westinghouse’s right to confess judgment under the mortgage is evident.

Last, appellant argues the judgment must be stricken as it was not confessed in conformity with the cognovit clause of the mortgage agreement. Appellant contends the affidavit evidencing the debt owed to the mortgagee and attached to plaintiffs’ complaint fatally failed to include the particulars of the alleged default as is required, appellant argues, by paragraph 29 of the mortgage agreement. My reading of the warrant of attorney paragraph indicates the affidavit must include “the amount of the indebtedness, inclusive of reasonable attorneys’ fees, with costs of suit and release of procedural errors,” with no mention of a requirement the terms or nature of the debt and/or default must be included. Accordingly, I would find this portion of appellant’s argument devoid of merit. However, also with regard to the affidavit necessary to enter judgment, appellant argues the document is legally deficient because Continental, as signator of the affidavit, was not a duly authorized designee of mortgagee as required by paragraph 29. Because I would find Continental does not have an interest in the mortgage upon which judgment has been confessed, I would likewise find the affidavit necessary to establish the mortgagee’s indebtedness to be legally deficient.

Regardless of the ultimate outcome of this case and irrespective of whether a motion to open would have been the better vehicle to determine the equitable result in this case, the irregularity on the face of the record is of sufficient legal import that as a matter of law the motion to strike should have been granted. Fountain Hill Millwork Bldg. v. Belzel, 402 Pa.Super. 553, 587 A.2d 757 (1991). Therefore, applying the standard of review set forth above, I would be compelled to vacate the April 8, 1991 judgment entered in Westinghouse’s favor. This holding would be made without prejudice to Westinghouse to refile the complaint in confession of judgment within the constraints of this dissent’s reasoning.

      . ComFed Savings Bank is not a party to this appeal. 304 Pa.Super. 204, 212, 450 A.2d 173, 177-78 (1982) ("The rule requires only that the complaint contain a 'statement of any assignment of the instrument.' ”).

      . A petition to strike and a petition to open are two forms of relief with separate remedies; each is intended to relieve a different type of defect in the confession of judgment proceedings. See Pa.R.C.P. 2959 (Relief from judgment by confession/striking off or opening judgment).
      A petition to strike off the judgment reaches defects apparent on the face of the record, Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985); C-Rich Co. v. Davis, 383 Pa.Super. 31, 556 A.2d 413 (1989), while a petition to open the judgment offers to show that the defendant can prove a defense to all or part of the plaintiffs claim. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). When an alleged defect in the judgment entered by confession is based upon a matter outside the record, the proper approach is to seek to have the court open the judgment. Proceedings to open a judgment involve equitable principles, and only those judgments which warrant equitable interference will be opened. Keystone Bank v. Flooring Spec., Inc., 513 Pa. 103, 518 A.2d 1179 (1986).

      . Pennsylvania Rule of Civil Procedure 2952 provides in part:
      RULE 2952. COMPLAINT. CONTENTS
      The complaint shall contain the following:
      * % * * >fc *
      (c) a statement of any assignment of the instrument;
      * # * * * *
      Pa.R.C.P. 2952(c) (emphasis added). The rule does not require that an executed assignment be attached to the complaint in confession of judgment; a recital of assignment is sufficient. See Weitzman v. Ulan,

      . ComFed is not a party to this appeal.

      . The trial court stated that because of the imminence of the pending sheriff’s sale on the judgment and the time involved in pursing the process of Pa.R.C.P. 209, defendant/appellant agreed to abandon its petition to open and proceed solely on the petition to strike. (Slip Op., Strassberger, J., 7/21/92, p. 2.) This was unfortunate as the motion to open would have addressed the equitable issues, as indicated in the majority Opinion, and appellant would have been in a better position to argue the existence of factual issues at trial.

      . I would also vacate judgment as to appellee Westinghouse but for different reasons to be discussed at a later point in this dissent.

      . The situation before us is distinguishable from that in DeRose v. Lombardi, 413 Pa. 258, 196 A.2d 336 (1964), on which the appellees rely and which held questions of fact must be resolved by a petition to open.


author: PER CURIAM:

text:
    645 A.2d 851
    Robert FRANKS v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1994.
    Filed July 28, 1994.

      Vatche Kaloustian, Philadelphia, for appellant.
    George D. Walker, Jr., New Castle, DE, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH and TAMILIA, JJ.
   PER CURIAM:

Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from the September 23, 1993 Order denying its petition to open/strike the judgment entered in favor of the appellee, Robert Franks, as a consequence of a 1987 workers’ compensation claim petition.

Appellee, a cashier for SEPTA, was allegedly injured on the job while he was being arrested by SEPTA detectives for receiving stolen property and theft in connection with subway fares. While believing appellee did sustain injuries, the referee nevertheless denied benefits finding claimant’s injuries were not compensable as a matter of law because they occurred while he was being arrested on charges for which he was later convicted. The Workers’ Compensation Appeal Board affirmed this decision but Commonwealth Court, on November 8, 1991, reversed, finding SEPTA had failed to establish a causal connection between claimant’s violations of the law and his injuries. Franks v. Workmen’s Compensation Appeal Board (SEPTA), 148 Pa.Cmwlth. 25, 613 A.2d 36 (1991). SEPTA’s petition for reargument and reconsideration was denied by Commonwealth Court, Franks v. Workers’ Compensation Appeal Board (SEPTA), (No. 2421 C.D.1990, filed March 9, 1992), as was its petition for allocatur to the Pennsylvania Supreme Court, Franks v. Workers’ Compensation Appeal Board (SEPTA), (No. 87 E.D.Alloc. Docket 1992, filed October 5, 1992). On November 4,1992, Franks entered judgment against SEPTA in the Court of Common Pleas, based on the 1991 Opinion of the Commonwealth Court which reversed the Appeal Board’s decision denying benefits. SEPTA’s petition to strike the judgment was granted by the Court of Common Pleas on March 25,1993 because prior to entering judgment, claimant had not secured an Order from the referee containing a computation of benefits owed. After obtaining an Order from the referee, Franks again entered judgment against SEPTA on June 8, 1993. Appellant avers this step was necessary because SEPTA allegedly refused to pay the award as directed. On September 3, 1993, the Court of Common Pleas denied SEPTA’s petition to open/strike the June 8th judgment on the merits. SEPTA appealed to Commonwealth Court which, on October 29, 1993, transferred the case to this Court on November 30, 1993. For the reasons which follow, we refuse jurisdiction and transfer this matter back to Commonwealth Court.

Appellant raises three issues, at least one of which questions the validity of the underlying judgment. For this reason alone, we find jurisdiction does not lie with this Court. This case has bounced through the administrative agency hierarchy of litigation since 1987 and several well-reasoned memoranda have been penned by our learned colleagues in Commonwealth Court addressing issues peculiar to the Workers’ Compensation Act; issues we are not in a position to address or challenge.

A second issue raised by appellant addresses the propriety of the Court of Common Pleas’ Order striking the original November 4, 1992 judgment and thereafter entering the second June 8, 1993 judgment. Appellant argues the second judgment is barred by res judicata. Again, this is a matter not properly before this Court. The Court of Common Pleas made its decision based on workers’ compensation procedural law with which it was presented. This Court does not as a matter of course deal with the inner workings of the workers’ compensation appeal procedure and is therefore not in a position to rule on the propriety of the decision finding the original judgment to have been improvidently entered.

Reasoning further, as mentioned in footnote 3, this case is still pending before Commonwealth Court; specifically, with regard to SEPTA’s appeal from the Workers’ Compensation Appeal Board’s decision affirming the referee’s Order directing SEPTA to pay penalties and statutory interest on all deferred compensation and costs of litigation. In his Memorandum, the Honorable Charles A. Lord stated: “At this point, we are still left with the unanswered question that has caused much of the problem in this case. That question is the amount of benefits owed Franks.” SEPTA v. Workers’ Compensation Appeal Board (Franks), No. 1854 C.D.1993, unpublished memorandum filed March 9, 1994. Clearly, the matter of the amount- of compensation owed to claimant is an issue which must be resolved by the Workers’ Compensation referee, and for this Court to rule either affirming or denying the motion to strike or open the $158,566 judgment would unquestionably complicate further an already procedurally complex case. (See Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986) (When considering whether to retain jurisdiction, the interests of the parties and matters of judicial economy must be balanced against other factors including 1) whether retention will disrupt the legislatively ordained division of labor between the intermediate appellate courts; and 2) whether there is a possibility of establishing two conflicting lines of authority on a subject.))

Finally, assuming arguendo Franks has a valid judgment, logic dictates the court which has jurisdiction when the verdict is entered must be held responsible for enforcing the judgment once taken.

For these reasons, we transfer this case to Commonwealth Court, and relinquish jurisdiction.

Case transferred to Commonwealth Court.

Jurisdiction relinquished.

      . The record indicates the referee again failed to perform a computation of benefits owed in his Order directing SEPTA to pay penalties and costs.

      . Because we have not been made privy to the underlying workers’ compensation record, we are unable to state from where the $158,566 dollar figure listed in the judgment arose.

      . After this matter was transferred to this Court on November 30, 1993, the Commonwealth Court was still entertaining an appeal on the merits filed by SEPTA. On March 9, 1994, Commonwealth Court affirmed in part and vacated in part a July 20, 1993 Order, issued as a consequence of a penalty petition, directing SEPTA to pay penalties plus statutory interest on all deferred compensation and costs of litigation owed the claimant. In his memorandum ruling on SEPTA’s appeal, Senior Judge Charles Lord voiced his concern that the court was still left with the unanswered question of what is the amount of benefits owed by SEPTA to claimant.

      . Appellant contends judgment cannot be entered in claimant's favor without an award for total and permanent disability which clearly states the terms of payment.

      . Further, as an agency of the Commonwealth of Pennsylvania and an instrument of the government created through legislative mandate, it follows that lawsuits to which SEPTA is a party are properly entertained by Commonwealth Court. (Trial Court Opinion, 10/5/93, p. 4). Thus, even if there had been a Bruton violation, which we conclude there was not, appellant would not be entitled to a new trial on this basis.


author: ROWLEY, President Judge.

text:
    645 A2d 853
    COMMONWEALTH of Pennsylvania v. Aaron WHEELER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 6, 1994.
    Filed July 28, 1994.

      Jay S. Gottlieb, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and KELLY and MONTGOMERY, JJ.
   ROWLEY, President Judge.

As a result of his participation in a robbery and murder occurring at a Philadelphia convenience store, Aaron Wheeler (hereinafter “appellant”) was found guilty by a jury of second degree murder, robbery, criminal conspiracy and possession of an instrument of crime; he has filed the instant appeal from his judgment of sentence. On appeal, appellant claims that he is entitled to a new trial for the following reasons: (1) because the Commonwealth peremptorily struck a disproportionate number of black jurors during jury selection; (2) because the Commonwealth used appellant’s name while cross-examining appellant’s co-defendant regarding the co-defendant’s out-of-court statement; (3) because the Commonwealth made reference to “a second murder” while questioning appellant’s alibi witness; and finally, (4) because the Commonwealth’s closing remarks were “calculated to move [the jury] from their position of sworn impartiality.” Having thoroughly examined these claims, we find them all to be completely without merit and we therefore affirm.

The facts relative to this appeal were accurately and succinctly stated by the trial court, as follows:

“On October 31, 1991, Jai Ho Lee, the victim, was working as the manager of the Stop and Go Deli at Broad and Susquehanna Streets in Philadelphia[, Pennsylvania]. At about 6:39 p.m. Jesse Bond and [appellant], the defendants, entered the store and Bond pointed a gun at [an] employee, Yang-Jin Kim, telling him to ‘open the register and give up the money.’ At that point [in time,] Jai Ho Lee walked to the cash register, which was open, shut the [cash] drawer, locked it, and threw the key on the floor. Immediately after [Lee] threw the keys [to] the floor, Bond, standing about four feet from him, shot [Lee] in the chest, causing his death. [Appellant] entered the store with Bond, served as a look-out [during the robbery and murder] and fled [from the store] with Bond.
The case was tried before th[e] [trial] court from February 2 to February 8, 1993. [Appellant] was convicted of Murder in the Second Degree, Robbery, Possessing and Instrument of a Crime and Conspiracy.”

(Trial Court Opinion, 10/5/93, p. 1-2). “Post-Sentence Motions were heard and denied on July 28, 1993. This [timely] appeal followed.” Id.

Appellant’s first claim on appeal is that he was not tried by a fair and impartial jury because the Commonwealth used its peremptory challenges in a racially discriminatory manner in violation of the United States Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In reviewing this claim, “we are mindful that an appellate court will reverse a trial court’s finding of no discrimination only if that finding is clearly erroneous.” Commonwealth v. Correa, 423 Pa.Super. 57, 65, 620 A.2d 497, 501 (1993).

We observe that:

“Batson requires that a criminal defendant’s jury be selected without purposeful discrimination. Once a defendant presents a prima fade case that such purposeful discrimination has occurred, the burden shifts to the prosecution to supply a legitimate, race-neutral reason for striking a potential juror, [citations omitted]. The Commonwealth does not meet its burden by stating baldly that its actions involved no racial motive or were done in good faith, [citations omitted].”

Commonwealth v. Smulsky, 415 Pa.Super. 461, 465, 609 A.2d 843, 844-845 (1992), appeal denied, 532 Pa. 663, 616 A.2d 984 (1992). Further:

“[i]n order to establish a prima facie case of purposeful discrimination after [the United States Supreme Court’s decision in] Powers [v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ], a defendant need only show the circumstances of his case raise an inference that the prosecutor used his peremptory challenges to exclude veniremen from the petit jury on account of race.”

Commonwealth v. Correa, supra, at 65, 620 A.2d at 501.

“Appellant’s presentation of a prima facie case is unchallenged in this appeal. Therefore, we must carefully examine the Commonwealth’s explanations for excluding black persons to determine if there is support for the trial court’s conclusion that those explanations were, in fact, valid and nondiscriminatory. The primary responsibility for assessing the validity of the Commonwealth’s explanations is vested in the trial court, [citation omitted], for
‘a finding of intentional discrimination is a finding of fact’ entitled to appropriate deference by a reviewing court. Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.”

Commonwealth v. Smulsky, supra, at 467, 609 A.2d at 845, citing Batson v. Kentucky, supra, at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21.

The Commonwealth’s first and second peremptory challenges were against two black venire persons, Kenneth Stewart and Effie Hall.- The trial court concluded, and we concur, that these strikes were racially neutral on their face and thus, no reasons were given by the Commonwealth on the record with regard to these strikes. Mr. Stewart was struck because he “absolutely” had qualms about sitting in judgment of another person and because he felt that police officers were not always worthy of belief, while Ms. Hall was challenged because her brother had been tried on murder charges. The Commonwealth’s third, fourth and fifth peremptory challenges were made to white jurors.

The next black juror who was peremptorily challenged by the Commonwealth was Kim Clark. The prosecutor explained that Ms. Clark was challenged because she seemed uninterested in participating in the proceedings. Where a prosecutor has an impression of a juror as disingenuous, a legitimate, race-neutral reason for the peremptory challenge exists. Commonwealth v. Smulsky, supra, at 467, 609 A.2d at 846. Lottie Richardson was the seventh peremptory strike used by the Commonwealth. The trial court did not ask the prosecution to justify this strike because the reason therefor was apparent from the record; Ms. Richardson had a relative who had been arrested and charged with conspiracy.

Geraldine McClendon was the eighth person excluded from the jury by the Commonwealth and the prosecutor explained that she was struck because she equivocated with regard to her ability to impose the death penalty. This is clearly a race-neutral reason for striking a potential juror. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). The Commonwealth’s ninth and tenth peremptory challenges were used respectively against Mary A. Thompson and Betty R. Williams. We agree with the trial court that the reasons for these challenges are apparent on the face of the record because Ms. Thompson’s ex-boyfriend had committed a murder and Ms. Williams’ nephew has been charged with both murder and theft.

Following the Commonwealth’s use of a peremptory strike against a hispanic juror, it challenged two black venire persons, Brian Reed and William Williams. The prosecutor stated that he struck both of the jurors because they equivocated on the death penalty issue. As noted above, equivocation with regard to one’s ability to follow the court’s instructions on the law and impose the death penalty in an appropriate case is a legitimate, race-neutral reason for exercising a peremptory challenge against a potential juror. Commonwealth v. Hardcastle, supra, at 244, 546 A.2d at 1105.

The fourteenth and fifteenth peremptory strikes by the Commonwealth were against Nicole Gilyard and Joyce Hinton, respectively. Ms. Gilyard was struck because she had a close friend who was awaiting trial on the charge of robbery, which is clearly a race-neutral reason for striking a potential juror, Commonwealth v. Hardcastle, supra, at 245, 546 A.2d at 1105, while Ms. Hinton was challenged because she became extremely incensed when the Commonwealth asked her if she was sure that she could impose the death penalty in an appropriate case. The trial court, who observed the demeanor of Ms. Hinton first-hand, immediately accepted the prosecutor’s explanation as race-neutral, as do we.

Having carefully reviewed the record, and the relevant legal authorities, we conclude that the reasons given by the Commonwealth for peremptorily challenging the above-noted venire persons were sufficiently race-neutral for the trial court to conclude that they were legitimate, rather than pretextual. Appellant is not entitled to a new trial based on his allegation that the Commonwealth improperly engaged in racial discrimination while selecting his jury.

Appellant’s second assignment of error concerns the Commonwealth’s cross-examination of appellant’s co-defendant, Jesse Bond. Appellant contends that he is entitled to a new trial, pursuant to the United States Supreme Court’s ruling in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because in cross-examining appellant’s co-defendant, Jeese Bond, the prosecutor made reference to Bond’s out-of-court statement naming appellant as his accomplice in the events of October 31, 1991. “In Bruton, [supra.], the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment when his non-testifying co-defendant’s confession naming him as a participant in the crime is introduced at their joint trial.” Commonwealth v. Wharton, 530 Pa. 127, 139, 607 A.2d 710, 716 (1991) (emphasis supplied).

The Commonwealth argues that its line of questioning in cross-examining Bond was not violative of Bruton because co-defendant Bond testified at trial that his statement had been concocted by the police and that he had only signed it because he was “frightened.” (Notes of Testimony, 2/5/93, p. 750-763). The Commonwealth cites Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971) in support of its argument in this regard.

“In Nelson, [supra.], the United States Supreme Court held that where a co-defendant in state court took the stand at a joint trial in his own defense, and denied making an alleged out-of-court statement implicating [the] defendant, and proceeded to testify favorably to defendant concerning the underlying facts, the defendant was denied no rights under the Sixth or Fourteenth Amendments----”

Commonwealth v. Baker, 511 Pa. 1, 15, 511 A.2d 777, 785 (1986). We agree with the Commonwealth that no Bruton violation occurred in this case.

Next, appellant asserts that it was error for the trial court to overrule his motion for a mistrial because “[t]he Commonwealth purposefully introduced evidence of another crime [committed by appellant,] a murder, to discredit the testimony of [appellant’s] alibi witness.” As our Supreme Court observed in Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, — U.S.-, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993):

“There is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity ... ‘[W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy.’ ... Further, the reference to prior criminal activity must be prejudicial to the defendant, with prejudice resulting “where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior offense.’
However, it is possible to eradicate any possible prejudice resulting from reference to prior criminal activity by the defendant.... An immediate curative instruction to the jury may alleviate any harm to the defendant that results from reference to prior criminal conduct.

[Commonwealth v. Stephen Quintin Morris, 513 Pa. 169,] 175-176, 519 A.2d [374,] 376-377 [ (1986) ]. (citations omitted). See Commonwealth v. Kelvin Morris, 522 Pa. 533, 564 A.2d 1226 (1989).

In determining whether a reference to prior criminal activity requires the granting of a new trial, we must analyze each ease individually for prejudice.”

Commonwealth v. Zook, supra, at 96, 615 A.2d at 10.

In the instant case, appellant complains of the following on-the-record exchange between the Commonwealth and Rosalyn Wheeler, appellant’s mother:

Q. Let me tell you what we’re dealing with. We’re dealing with the homicide that occurred October 31, 1991, at Broad and Susquehanna, [at] approximately 6:39 in the evening, okay?

A. Okay.

Q. When did you first become aware that [appellant] was accused of that crime?

A. On the 27th of November.

Q. And he told you that he was accused of that crime? A. No. He told me, “Mom, I have been arrested for a second murder.”

Q. Now, when he told you that he had been — when he told you that he had been arrested for a second murder—

(Notes of Testimony, 2/5/93, p. 821). After these remarks had been made, appellant objected and a recess was taken; appellant moved for a mistrial out of the presence of the jury. This request was denied by the trial court, but upon the jury’s return, the court gave the following curative instruction:

“THE COURT: Members of the Jury, with respect to the testimony of the witness Rosalyn Wheeler, I want to tell you that any unrelated incidents or arrests involving any of these defendants is not relevant to this case, not proper for your consideration, and not admissible. It should be totally and completely disregarded.”

(Notes of Testimony, 2/5/93, p. 821).

Clearly, in the case sub judice, as in Zook, the witness’ unfortunate remark was not intentionally elicited by the Commonwealth, but rather was volunteered by her on cross-examination. Further, as in Zook, the answer given by Ms. Wheeler was unresponsive to the Commonwealth’s question and the Commonwealth did not attempt to take advantage thereof. Thus, we conclude, as did our Supreme Court in Zook, that the trial court properly refused appellant’s request for a mistrial because any prejudice that he suffered as a result of his mother’s unforeseeable blunder was cured by the court’s cautionary instruction to the jury.

Appellant’s fourth and final contention here on appeal is that he is entitled to a new trial because the Commonwealth made several allegedly prejudicial remarks in its summation to the jury.' We note, however, that:

“ ‘[e]very unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial.’ [citation omitted]. Rather, the focus is on what, if any, effects the comment had on the jury. A new trial is required when the effect of the District Attorney’s comments ‘would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weight the evidence objectively and render a true verdict.’ [citations omitted]. Further, this decision is for the trial court to make. Our role is to determine solely whether the trial court abused its discretion. [citation omitted].”

Commonwealth v. Faulkner, 528 Pa. 57, 77, 595 A.2d 28, 39 (1991), cert. denied, — U.S.-, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1990). “Furthermore, the ‘prejudicial effect of the district attorney’s remarks must be evaluated in the context in which they occurred.’ ” Commonwealth v. Carpenter, 511 Pa. 429, 439, 515 A.2d 531, 536 (1986), quoting, Commonwealth v. Smith, 490 Pa. 380, 387, 416 A.2d 986, 989 (1983).

The first two comments to which appellant makes objection, were that “every armed robbery is a first degree murder waiting to happen” and that the defense was asking the jury for a “discount” to second degree murder because the killing was in the course of a felony. Having carefully reviewed the notes of testimony, it is clear to us, as it was to the trial court, that these remarks were intended to rebut defense counsel’s closing remarks, where it argued that the Commonwealth had, at most, proven second degree murder. Neither of the Commonwealth’s remarks in this regard was of such a nature that the jury would form in their minds fixed bias or hostility toward appellant so that they could not weigh the evidence and render a reliable verdict.

The final remark that appellant found objectionable during the Commonwealth’s closing argument was the prosecutor’s statement that the defendants should be held “accountable to the law of a civilized people.” Although appellant contends that this statement was inflammatory and prejudicial, we conclude that it was merely a request for a guilty verdict based on the law and the evidence. It was not of such a nature as to fix a bias or hostility in the minds of the jury. Appellant is not entitled to a new trial based on his allegations of prosecutorial misconduct.

Judgment of sentence affirmed.

      . Furthermore, as noted by the trial court, even assuming that the rule enunciated in Bruton was violated by the prosecution's reference to Bond's unredacted statement:
      "A violation of the Bruton rule does not automatically require reversal of a criminal conviction. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). There need be no grant of a new trial where the prejudicial effect of the co-defendant’s admission is so insignificant by comparison to the evidence against him that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error. Id. at 143-144, 607 A.2d at 718. A determination that such use was harmless must be reached by balancing the prejudicial effect of the statement with the quality of the evidence establishing defendant's guilt. Id.

      Viewed in the context of the other evidence against him, the mention of [appellant’s] name in the cross-examination of [co-]defendant Bond implicating [appellant] in the crime did not constitute prejudicial error. The evidence against [appellant] which had already been presented in the prosecution’s case in chief was overwhelming. His confession described his participation in the planning and execution of the crime in detail and two eyewitnesses were able to identify him as the person who had participated in the robbery and killing with [co-]defendant Bond.
      Moreover, immediately following the mention of [appellant’s] name, and again in its final instructions to the jury, the court cautioned them that ‘the statement of one defendant may not be used against the other defendant in any way ... The two defendants are being tried at the same time, but the evidence against each must be separated. In order to be a fair trial to both defendants, the evidence against each must be considered separately, and I instruct you that you may not consider the evidence of the statement of one defendant against the other. And further, as I have told you before, and will probably tell you again, the questions are not evidence. It is only the answers which are evidence, members of the jury.’ ”

      . Moreover, because appellant was convicted of second degree murder, rather than first degree murder, it is obvious that he was not prejudiced by the Commonwealth’s comments regarding the degree of guilt.

      . Further, while appellant initially moved for a mistrial, he ultimately agreed that a cautionary instruction to the jury (to the effect that the defendants are entitled to all the rights of citizenship and that they are innocent until proven guilty) would be sufficient. Therefore, he may not argue that the instruction to which he agreed was insufficient.