author: McEWEN, Judge:

text:
    460 A.2d 323
    Anna DUDASH, Appellant, v. John DUDASH and Violet T. Dudash.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1982.
    Filed May 6, 1983.

      Stephen P. Ellwood, Pottsville, for appellant.
    William E. Baldwin, Pottsville, for appellees.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

The case we here consider involves an action in equity-brought by a mother against her son and daughter-in-law in which the plaintiff sought reformation of a deed to property that she had conveyed to her son. Following a non-jury trial, the learned Schuylkill County Common Pleas Court Judge Donald D. Dolbin, sitting as Chancellor in Equity, entered a decree in favor of defendants. We affirm.

The specific assertions of error claimed by appellant were expressed in the following exceptions to the findings of fact and conclusions of law made by the Chancellor:

1. Plaintiff excepts to the Court’s ruling admitting into evidence over plaintiff’s objections, Defendants’ Exhibits numbers 1 and 2.
2. Plaintiff excepts to the introduction of testimony over her objection as to the dissolution of a partnership among her three (3) sons.
3. Plaintiff excepts to finding of fact number 2:
“At sometime prior to July 19, 1974, the plaintiff orally agreed to convey to her son, the defendant, a portion of the said premises ‘west of the road’ upon which portion stood a garage later to be converted by the defendant into his house.”
4. Plaintiff excepts to finding of fact number 5:
“Since that time and prior thereto, the defendant, John Dudash, improved the said lot which was conveyed to him by clearing away junk, hauling top-soil, cultivating the same for an organic garden and in other ways improving and beautifying the same.”
5. Plaintiff excepts to finding of fact number 6:
“In 1977 following a dispute over a family partnership, the plaintiff first objected to the quantity of land conveyed to the defendant, and on April 2, 1979 commenced suit to reform the 1974 deed.”
6. Plaintiff excepts to conclusion of law number 2: “The defendant, John Dudash, is not guilty of fraud or overreaching in acquiring any of the land described in deed dated July 19, 1974 and recorded in Deed Book 1193 page 362.”
7. Plaintiff excepts to conclusion of law number 3: “The plaintiff is not entitled to a reformation of the said deed.”
8. Plaintiff excepts to conclusion of law number 4: “Defendants’ title to the land described in the said deed is good and indefeasible from the claim of the plaintiff.”

Plaintiff also excepted to the decree nisi which reads as follows:

9. “DOLBIN, J.
AND NOW, this 23rd day of March, 1981, the complaint of the plaintiff is dismissed.
The plaintiff is given ten (10) days after notice of this adjudication to file exceptions pursuant to Pa.R.C.P. 1518. If no exceptions are filed, this decree nisi shall be entered by the Prothonotary on praecipe as the final decree.
BY THE COURT,
/s/ Dolbin, J.”
We agree with the trial court that the last mentioned exception was improper for the reason that the exception failed to comply with the applicable rule, namely, Rule 1518 of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S.A. See Nord v. DeVault Contracting Co., Inc., 460 Pa.Super. 647, 334 A.2d 276 (1975). This rule provides:
Rule 1518. Exceptions
Within twenty (20) days after notice of the filing of the adjudication, exceptions may be filed by any party to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters.

42 Pa.C.S.A.

Since each of the eight specific exceptions is separately and concisely stated with a precise reference to the matter to which objection is made, these claims of error comply with Rule 1518 and we will, therefore, proceed to discuss the merits of these exceptions. The issues raised in exceptions three through eight are inextricably tied to the issue raised on appeal relating to the evidentiary support for the decree, and we will, therefore, consolidate our discussion of the merits of the contentions expressed in the exceptions and the contention that the decree was not supported by the evidence.

Our . review of this case is guided by the principles that the scope of appellate review of a decree in equity is particularly limited, Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982), and that the findings of the Chancellor will not be reversed unless it appears that the Chancellor clearly committed an abuse of discretion or an error of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). Where credibility of witnesses is important to a determination, the findings of the Chancellor are entitled to particular weight because the Chancellor has the opportunity to observe their demeanor. Frowen v. Blank, supra; Bedillion v. W.A. Wilson Stave Co., Inc., 271 Pa.Super. 292, 413 A.2d 411 (1979). Although an appeals court cannot sit as a trier of issues of fact and must accept the findings of fact of the lower court as the basis of its review, Lynch v. Hook, supra, an appellate court is not bound to accept the findings of the Chancellor which are without support in the record or have merely been derived from other facts. Frowen v. Blank, supra; In re McKinley’s Estate, 461 Pa. 731, 337 A.2d 851 (1970). Thus, the Chancellor’s conclusions of law or fact which are derived from nothing more than reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 423 A.2d 370 (1980).

The Chancellor made the following findings of fact:

1. On July 19, 1974 the plaintiff was the owner of a rectangular parcel of land in the Borough of Port Carbon north of Fifth Street which parcel measured approximately 232 feet in length by 170 feet in depth which she acquired by a deed dated June 5, 1946 and recorded in Deed Book 679 page 234.
2. At sometime prior to July 19, 1974, the plaintiff orally agreed to convey to her son, the defendant, a portion of the said premises “west of the road” upon which portion stood a garage later to be converted by the defendant into his house.
3. On July 19, 1974 the plaintiff executed a deed which deed is recorded in deed book 1193 page 362 conveying to the defendant, her son, the western 85 feet of her said lot which parcel was later conveyed to the defendant’s wife and himself by deed dated November 5, 1977 and recorded in Deed Book 1247 page 70.
4. The defendants were married in December of 1974 and moved into their new home in February or March of 1975.
5. Since that time and prior thereto, the defendant John Dudash, improved the said lot which was conveyed to him by clearing away junk, hauling top-soil, cultivating the same for an organic garden and in other ways improving and beautifying the same.
6. In 1977 following a dispute over a family partnership, the plaintiff first objected to the quantity of land conveyed to the defendant, and on April 2, 1979 commenced suit to reform the 1974 deed.

The court then concluded that, if any mistake occurred concerning the precise quantity and location of the land to be conveyed in 1974, it was solely a unilateral mistake on the part of appellant. The court further found no evidence of fraud or bad faith on the part of her son.

Courts of equity have jurisdiction to reform deeds where mutual mistakes appear, but proof of the mutual mistake must be clear and positive. Rusciolelli v. Smith, 195 Pa.Super. 562, 171 A.2d 802 (1961). A party who seeks reformation on the ground of mutual mistake must establish in the clearest manner that the intention proffered as the basis for reformation of the deed existed and continued concurrently in the minds of the parties down to the time of the execution of the deed. Id. If the evidence justifies such a finding of the intention of the parties, this finding may be made by the Chancellor even though it is expressly denied by one of the parties. Id.

The reformation of a deed may also be made by a court of equity when there has been a mistake by one party with knowledge of that mistake by the other party. Alderfer v. Pendergraft, 302 Pa.Super. 210, 448 A.2d 601 (1982); Hassler v. Mummert, 242 Pa.Super. 536, 364 A.2d 402 (1976); St. Mark’s Evangelical Lutheran Church v. Briar-cliff Realty Co., Inc., 197 Pa.Super. 118, 177 A.2d 169 (1962); Rusciolelli v. Smith, supra. A party seeking reformation on the basis of such unilateral mistake may be granted relief if the party against whom reformation is sought has such knowledge of the mistake as to justify an inference of fraud or bad faith. Line Lexington Lumber & Millwork Co. v. Pennsylvania Publishing Corp., 451 Pa. 154, 301 A.2d 684 (1973). A corollary to the aforementioned principles is the rule that the mistake under scrutiny, as well as the actual intent of the parties, must be clearly proven. Hassler v. Mummert, supra.

We find adequate support in the record for the conclusion drawn by the Chancellor that appellant did not prove either (1) mutual mistake or (2) unilateral mistake on the part of appellant with knowledge of that mistake by her son. It is undisputed that appellant agreed to convey a portion of her property to her son, and pursuant to this objective, a deed was prepared and the property conveyed. The property so conveyed consisted of a parcel of land on which was located a garage which the son immediately began to remodel as an apartment for himself and his fiancee. The portion of land which appellant seeks to have reconveyed to her includes land on which appellees had planted a garden and also includes land on which appellee had installed a pipeline in order to provide drainage for the land in dispute. It should be mentioned that the land appellant seeks to recover also includes part of the driveway that leads to the garage that appellees had converted into their home and if appellant recovers such land, the only ingress and egress the conveyance would have provided would have been over a narrow ten foot wide driveway, a result that would appear inconsistent with the bounty she was providing her child. It was not until 1977, more than three years after appellant conveyed the property to her son, that appellant expressed a claim to a portion of the property that she had conveyed. There was evidence at trial that appellant first asserted an objection to the amount of property conveyed at approximately the same time that a family dispute arose between appellee and his brothers.

We conclude that there was sufficient evidence introduced to support the findings of fact of the Chancellor that: appellant orally agreed to convey all the property which was conveyed by the deed; appellees made improvements to the disputed land; and appellant only first objected to the quantity of land conveyed at the time that a family dispute over an unrelated matter arose. In addition, the testimony of appellees and their actions with respect to the property in dispute clearly support the conclusion of the Chancellor that they were not mistaken as to the quantity of land conveyed. We further decide that the Chancellor could properly conclude there was no evidence of fraud or bad faith on the part of her son and that, therefore, appellant was not entitled to reformation of the deed.

We next consider the contention of appellant that the Chancellor committed error when he allowed appellees to admit into evidence photographs and testimony relating to a family dispute. The first evidentiary challenge concerns the admission into evidence of two photographs that depicted the building which is now the home of appellees. No objection to the admission into evidence was made at trial and, therefore, the issue is waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1981); International Systems v. Personnel Data Systems, Inc., 274 Pa.Super. 500, 418 A.2d 518 (1980).

The second evidentiary challenge concerns testimony relating to a partnership dispute among appellee John Dudash and his brothers that was introduced over the objection of appellant on the grounds that it was irrelevant. Evidence is relevant when it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). Appellees sought to prove that appellant commenced the proceedings for deed reformation at the time when appellee John Dudash and his brothers became embroiled in a partnership dispute. The merits of this partnership dispute were not explored at trial, but rather, appellees sought to introduce testimony regarding the partnership dispute for the reason that such evidence was relevant to the motive of appellant for commencing the suit seeking reformation of the deed. We decide that the Chancellor properly concluded that such evidence was relevant.

Decree affirmed.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    460 A.2d 328
    COMMONWEALTH of Pennsylvania v. William WELLS a/k/a James Nelson, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1983.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Denied Sept. 14, 1983.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    A. Sheldon Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery, criminal conspiracy, and prohibited offensive weapons. Appellant was convicted of several other offenses, but since these merged with the robbery, no separate sentence for any of them was imposed. One of these several other offenses was unlawful restraint. Appellant argues that he is entitled to a new trial because the lower court in its charge improperly defined the offense of unlawful restraint. However, we find no error, and therefore affirm.

In the course of committing a robbery, appellant, using a sawed-off shotgun, forced restaurant employees to open a safe, lie on the floor, and unlock a back door for his escape. The incident lasted about ten minutes. N.T. 3/4/81 at 7.

The offense of unlawful restraint is defined as follows: A person commits a misdemeanor of the first degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or
(2) holds another in a condition of involuntary servitude.

18 Pa.C.S.A. § 2902 (1981 Supp.).

Appellant argues that the lower court improperly charged the jury on the meaning of “involuntary servitude” within § 2902(2). The charge was that

the defendant has been charged with unlawful restraint in this manner [sic; matter?] as well and in order to find the defendant guilty of that crime you must be satisfied beyond a reasonable doubt that the following two elements have been established by the Commonwealth: First, that the defendant held either Mr. Sulik or Mr. Coen in a condition of involuntary servitude, that is held one of those individuals subject to a will other than that individual’s, that is allowing Mr. Sulik or Mr. Coen, depending on whose case you’re considering, and not allowing him to decide what to do or what not to do, in other words, the freedom of choice and requiring, on the contrary, that person to do something which is laying [sic ] on the floor or opening the door contrary to the exercise of his free will, in other words, not giving that person, Mr. Sulik or Mr. Coen, the opportunity to voluntarily freely decide for himself whether or not they choose to do one of these two things, lay [sic ] on the floor or open the door as the case suggests to you and, of course, when I say do one of those two things, who is going to decide what was done or what was not done? You, ladies and gentlemen, are because you’re the judges of the facts and you have to determine what happened.
So, the first element of this offense is that the defendant had the victim in a condition of involuntary servitude and the second element is that the defendant knowingly held that victim in a condition of involuntary servitude. I’ve already defined what knowing conduct is and, therefore, I won’t repeat it for you at this time.
N.T. 4/29/81 at 79-80.

Appellant argues that “involuntary servitude” “means slavery or bondage,” Brief for Appellant at 13, and should not be construed to include “ordering] [a person] to commit an act against his will pursuant to a robbery,” id. “Otherwise, every robbery would involve a charge of unlawful restraint whenever the victim is ordered to hand over his money.” Id.

We have discovered no case construing the meaning of “involuntary servitude” as used in the definition of the offense of unlawful restraint. We believe, however, that the meaning becomes clear when the phrase is taken in the context of the Crimes Code.

In the Crimes Code, the offense of unlawful restraint, 18 Pa.C.S.A. § 2902, falls between the offense of kidnapping, id. § 2901, and the offense of false imprisonment, id. § 2903. Kidnapping requires that a person remove another a “substantial distance [] from the place where he is found,” or confine another “for a substantial period in a place of isolation____” Id. § 2901 (emphasis added). False imprisonment requires that one “knowingly restrain [] another unlawfully so as to interfere substantially with his liberty.” Id. § 2903 (emphasis added). Unlawful restraint has no similar requirement; it suffices merely to “hold [] another in a condition of involuntary servitude.” Id. § 2902(2).

It is therefore clear that “involuntary servitude” has no time dimension. Holding another in a condition of slavery would represent holding him in a condition of prolonged involuntary servitude. But that is not the only sort of involuntary servitude the legislature had in mind. For if that were the only sort it had in mind, it would have said so, just as in defining kidnapping it required proof of a “substantial distance” or “substantial period,” and in false imprisonment, of “substantial[ ]” interference with liberty.

Once one realizes that “involuntary servitude” has no time dimension — that any involuntary servitude, from brief to prolonged, may represent unlawful restraint — it becomes apparent that the lower court’s charge was correct. The court told the jury that the Commonwealth had to prove that in lying on the floor or in opening the door to enable appellant to escape, Mr. Sulik or Mr. Coen had not acted freely, but, rather, as individuals whom appellant had deprived of freedom of choice and had subjected to his will. Such individuals may fairly enough be characterized as “in a condition of involuntary servitude.” Slaves, if you will, for a brief period.

Affirmed.

      . Appellant also argues that the lower court erred in refusing to suppress two identifications and in permitting testimony regarding the content of police radio broadcasts. The opinion of the lower court adequately disposes of these issues.

      . The lower court states in its opinion that appellant’s post-verdict motions were denied. Slip op. at 2. We have examined the record and have been unable to find appellant’s post-verdict motions or any evidence that they were ever filed. However, the Commonwealth does not argue waiver and we have decided that the better course is to assume that the motions have been lost and to end the controversy by deciding it on the merits.

      . A dictionary definition is: "Involuntary Servitude. The condition of one who is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not.” Black's Law Diet, at 743 (5th Ed.1979).

      . See Toll, Pa. Crimes Code Ann. § 2902 at 343: "This section establishes a crime between kidnapping and false imprisonment. It is intended to cover restraints which do not reach the magnitude of kidnapping but are somewhat more serious than mere false imprisonment.”


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    460 A.2d 330
    Spero A. BRANOFF, Sr. and Juditha Branoff, Appellants v. Stella FITZPATRICK.
    Superior Court of Pennsylvania.
    Argued June 24, 1982.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Granted Aug. 24, 1983.
    Wieand, J., dissented and filed opinion in which Cirillo, J., joined.

      Neil J. Rovner, Harrisburg, for appellants.
    Bernadette Barattini, Harrisburg, for appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   CAVANAUGH, Judge:

On December 24, 1977, the appellants, Spero A. Branoff, Sr. and Juditha Branoff were involved in a motor vehicle accident with appellee, Stella Fitzpatrick, which allegedly caused property damage as well as personal injuries to Spero A. Branoff, Sr. In October, 1978, appellant, Spero A. Branoff, Sr. commenced an action in trespass against the appellee, alleging property damage only. This case was referred to arbitration and the arbitrators awarded Mr. Branoff $639.00 and costs in that action and this case has been terminated.

On December 18, 1979, the appellants commenced a second action of trespass based on the automobile accident, this time alleging personal injuries and loss of consortium. The appellee filed preliminary objections in the nature of a demurrer, on the ground that the second action was barred by reason of appellant’s failure to assert all claims arising out of the accident of December 24, 1977, in the prior trespass action. The court below, in an order by Caldwell, J., sustained the appellee’s demurrer and dismissed the complaint. The appellants have appealed to this Court from the order of dismissal.

The court below relied on Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968) in dismissing the appellants’ complaint. In that case, the plaintiff brought an action to recover for property damages only and an arbitration panel found in favor of the plaintiff. He subsequently brought an action in trespass for personal injuries arising out of the same accident. The Supreme Court held that the action for property damages barred a later trespass action between the same parties for personal injuries. The court stated at 430 Pa. 480, 481, 243 A.2d at 427 (1968):

When personal injuries to a person and damages to his property arise from the same cause and the same tortious act, the person who has sustained such personal injuries and property damage must seek recovery for both in a single action and, if separate actions are instituted for each category of damage and a judgment is rendered in one of such actions, the entry of such judgment has the effect of res judicata and bars recovery in the other action. Such is the view of a substantial majority of jurisdictions in the United States, and to this view Pennsylvania has long adhered. See: Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 117 A. 59 (1922); Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951); Saber v. SuppleeWills-Jones Milk Co., 181 Pa.Super. 167, 124 A.2d 620 (1956).

In Spinelli the Supreme Court stated that the answer to the question whether the action for property damages must be joined with that for personal injury “turns on whether there is only one cause of action or more than one cause of action.” Spinelli v. Maxwell, 430 Pa. 478, 481, 243 A.2d 425, 427. The rationale of Spinelli was that the wrongful act, i.e., the negligence that caused the damages constituted one cause of action and therefore the property damage and the personal injury claim had to be joined in one action. As to the meaning of “cause of action”: “[i]t has been held that the cause of action in a negligence action is the ‘negligent act or acts which occasioned the injury: ...’” Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 448 A.2d 588, 589 (1982). However Spinelli, supra, was decided prior to Pennsylvania’s No-Fault Act which has changed the traditional concept of “cause of action” in cases to which it applies. In the instant case, we must determine whether the cause of action for property damage and personal injuries is one cause of action under the Pennsylvania No-Fault, Motor Vehicle Insurance Act, Act of July 19, 1974 P.L. 489 No. 176, 40 P.S. 1009.101 et seq. Under section 301 of the Act, tort liability is abolished for any injury that takes place in Pennsylvania unless certain thresholds are met as set forth in the Act. Tort liability is not abolished by the act with reference to property damage.

Spinelli, supra, must be read in the light of the No-Fault Act and in this respect we are guided by Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) which held that the two year statute of limitations does not start to run until the claimant knows or in the exercise of reasonable diligence should have known that one of the thresholds specified in section 301(a) of the No-Fault Act has been reached. The rationale of the case is that the cause of action for personal injuries does not exist until the threshold has been reached.

In the instant case the accident, or cause of the injuries and property damages accrued on December 24, 1977 and the cause of action arose on that date for the property damages. Prior to no-fault, and in a less complex legal era with reference to the concept of cause of action, the personal injuries cause of action would also have accrued on that date and the clock of the statute of limitations for both property damage and personal injury would have started ticking on the date of the accident. Since the passage of the No-Fault Act and the decision in Bond v. Gallen, supra, the cause of action with respect to Section 301 tort liability does not exist until the claimant knows or in the exercise of reasonable diligence should have known that a Section 301 threshold has been reached. The cause of action for property damages arises when the negligence occurs, and notwithstanding that the same act of negligence may cause personal injuries, the cause of action for such injuries may well accrue at a different time than the cause of action for property damages. In the case before us the causes of action for property damages and personal injuries did not accrue at the same time and are governed by the statute of limitations which commences running at different times. Within the framework of the No-Fault Act, there may be separate causes of action for property damage and personal injuries although one act caused both. Under the facts of this case there is no requirement that the claim for property damages be joined with that for personal injuries and loss of consortium as they are based on causes of action which accrued at different times. Accordingly, the court below erred in sustaining appellee’s preliminary objections.

One final matter should be discussed. In the instant case, the appellants knew or should have known that the Section 301 threshold had been reached before they commenced their action for property damages. They could have commenced an action in tort for personal injuries and loss of consortium at the same time the action for property damages was commenced. Notwithstanding this, there is no requirement that the action for personal injuries be joined with that for property damages since the causes of action accrued at different timesr We should not further refine the law to require joinder of property damage claims and Section 301 tort claims in one action, if the 301 threshold has been reached prior to the commencement of the action for property damage. There is nothing to bar the claimant from joining the actions, if he desires, but to etch such a requirement in law is unwarranted.

Order reversed and case remanded.

WIEAND, J., files dissenting opinion.

CIRILLO, J., joined dissent.

WIEAND, Judge,

dissenting:

A majority of the Court concludes that the Pennsylvania Motor Vehicle No-fault Insurance Act has overruled, by implication, prior Supreme and Superior Court decisions holding that a person who has sustained personal injuries and property damage arising out of the same tortious act must seek recovery for both in a single action. Because the majority’s decision is contrary to well established legal principles and also because it will create unwarranted uncertainty for litigants and unnecessary burdens for an already overburdened judicial system, I must respectfully dissent.

On December 24, 1977, vehicles operated by Spero A. Branoff, Sr. and Stella Fitzpatrick collided at an intersection in the City of Harrisburg. As a result of the collision, the Branoff vehicle was demolished, and Mr. Branoff sustained personal injuries. In October, 1978, Branoff instituted an action against Fitzpatrick to recover damages to his vehicle. The action was heard by a board of arbitrators which entered an award in favor of Branoff and against Fitzpatrick for property damage in the amount of $639. The award was thereafter paid and the action terminated.

When Branoff’s action for property damages was commenced, his personal injuries were such that he also possessed a fully accrued right to maintain a common law action in tort therefor, i.e., he had met the requirements of the No-fault Act for maintaining an action at law against the tortfeasor. An action for personal injuries, however, was not commenced until December 18, 1979, almost a year after the arbitration award in the earlier action. Fitzpatrick filed preliminary objections in the nature of a demurrer, asserting that the second action was barred by principles of res judicata. The trial court sustained these preliminary objections and dismissed the complaint. This appeal followed.

The law is well settled that a “cause of action” in a negligence action is the “negligent act or acts which occasioned the injury.” Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 187, 448 A.2d 588, 589 (1982) quoting Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764, 767 (1965). Accord: Page’s Department Store v. Velardi, 464 Pa. 276, 283 n. 5, 346 A.2d 556, 559 n. 5 (1975); Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 325-326, 319 A.2d 914, 918 (1974); Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 459-460, 219 A.2d 676, 678-679 (1966); Fisher v. Hill, 368 Pa. 53, 59-60, 81 A.2d 860, 864 (1951); Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939); Connor v. Allegheny General Hospital, 300 Pa.Super. 321, 325-326, 446 A.2d 635, 638 (1982), allocatur granted September 20, 1982; Junk v. East End Fire Department, 262 Pa.Super. 473, 490, 396 A.2d 1269, 1277 (1978); Brungard v. Hartman, 46 Pa.Cmwlth. 10, 15 n. 7, 405 A.2d 1089, 1092 n. 7 (1979). The law is equally well established that a cause of action for negligence cannot be split or divided. In Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968), the Supreme Court said:

“When personal injuries to a person and damages to his property arise from the same cause and the same tortious act, the person who has sustained such personal injuries and property damage must seek recovery for both in a single action and, if separate actions are instituted for each category of damage and a judgment is rendered in one of such actions, the entry of such judgment has the effect of res judicata and bars recovery in the other action. Such is the view of a substantial majority of jurisdictions in the United States, and to this view Pennsylvania has long adhered.”

Id,., 430 Pa. at 480-481, 243 A.2d at 427 (footnote omitted) (emphasis in original). See also: Fisher v. Hill, supra, 368 Pa. at 59-60, 81 A.2d at 864; Simodejka v. Williams, 360 Pa. 332, 335, 62 A.2d 17, 18-19 (1948); Fields v. Philadelphia Rapid Transit Company, 273 Pa. 282, 286, 117 A. 59, 60 (1922); Bardo v. Commonwealth, Department of Public Welfare, 40 Pa.Cmwlth. 585, 589, 397 A.2d 1305, 1307 (1979); Travelers Insurance Company v. Hartford Accident and Indemnity Company, 222 Pa.Super. 546, 549, 294 A.2d 913, 915 (1972); Saber v. Supplee-Wills-Jones Milk Company, 181 Pa.Super. 167, 169-170, 124 A.2d 620, 621 (1956); Restatement, Second, Judgments §§ 24, 25.

Under the doctrine of res judicata a judgment is conclusive as between the parties and their privies with respect to every fact that could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court. Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974); Goldstein v. Ahrens, 379 Pa. 330, 334, 108 A.2d 693, 695 (1954); Wallace’s Estate, 316 Pa. 148, 153, 174 A. 397, 399 (1934); Philadelphia Electric Company v. Borough of Lansdale, 283 Pa.Super. 378, 389, 424 A.2d 514, 519 (1981); Township of Ohio v. Builders Enterprises, Inc., 2 Pa.Cmwlth. 39, 41, 276 A.2d 556, 557 (1971). Where the same cause of action is involved, a plaintiffs cause of action is merged in a final judgment if he wins, or barred by it if he loses. The scope of the merger or bar includes not only matters litigated but also matters that should have been litigated. McCarthy v. Township of McCandless, 7 Pa.Cmwlth. 611, 617, 300 A.2d 815, 819 (1973). See also: Restatement, Second, Judgments §§ 18, 19. Thus, a judgment is final not only as to damages actually claimed but also as to damages that might have been claimed. Daniels v. State Farm Mutual Automobile Insurance Co., 305 Pa.Super. 352, 356, 451 A.2d 684, 686 (1982); Bardo v. Commonwealth, Department of Public Welfare, supra 40 Pa.Cmwlth. at 589, 397 A.2d at 1307. The doctrine of res judicata serves to expedite the consideration of individual cases, to establish the certainty and finality of court judgments and to protect a party from vexatious litigation. Exner v. Exner, 268 Pa.Super. 253, 257, 407 A.2d 1342, 1344 (1979).

My reading of the No-fault Act does not disclose a legislative intent, express or implied, to overrule these well established principles. The No-fault Act abolished tort liability for personal injuries except in certain situations defined specifically by Section 301(a). These exceptions in-elude actions to recover non-economic loss in cases of death or serious bodily injuries, where an injured person is unable to perform his or her usual daily activities for more than sixty days, and where the expenditure of reasonable and necessary medical and dental services has exceeded the sum of $750. In Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (Cercone, P.J., and Johnson dissenting), this Court held that the statute of limitations did not begin to run on a common law action for personal injuries until such time as one of the Section 301(a) thresholds had been reached. To reach this result, the Court reasoned that the legislature had abolished the cause of action for non-economic loss caused by negligence and had not merely imposed a limitation on the remedy for such negligence. Id., 292 Pa.Superior at 210, 437 A.2d at 9. The majority in the case sub judice relies upon and extends this reasoning. It holds that the No-fault Act intended to create separate causes of action for property damage, which were not abolished, and for personal injuries, which were barred unless and until certain thresholds were met. I am unable to accept this reasoning. I am also unable to accept the desirability of permitting one negligent act to support more than one action. Irrespective of the validity of the result achieved in Bond v. Gallen, supra, that holding does not compel the result achieved by the majority in this case. It does not require that we overrule the long line of cases which have defined the cause of action as the negligent act or acts causing injury and holding that the cause of action cannot be split.

The majority’s reasoning is contrary not only to the decided cases, but also to the present trend in legal thinking. Current legal thought makes the claim “coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff ... and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.” Restatement, Second, Judgments § 24, comment a (emphasis supplied). “[W]here one act causes a number of harms to, or invades a number of different interests of the same person, there is still but one transaction; a judgment based on the act usually prevents the person from maintaining another action for any of the harms not sued for in the first action.” Restatement, Second, Judgments § 24, comment c (emphasis supplied).

In the instant action, there was one accident caused, allegedly, by the negligent driving of appellee. As a result, the husband-appellant sustained both personal injuries and property damage. When he filed a complaint to recover damages caused to his vehicle he was already aware that he had met the statutory threshold which permitted him to assert also a claim for personal injuries.

In my judgment, there are compelling reasons for holding that under such circumstances all claims must be asserted in one and the same action. Neither substantive theory nor practical necessity can support the additional burdens that will be placed upon an already overtaxed judiciary by permitting appellants to bring two actions where one will suffice. Certainly, the right to recover different types of damage caused by one negligent act does not justify a multiplicity of suits. Indeed, neither the circumstances of this case nor a desire to protect the future rights of injured claimants can justify the potential for vexatious litigation which follows from judicial endorsement of a procedure which permits separate actions to enforce one cause of action.

It may be that exceptional cases will arise — this is not one of them — in which an injured party who has previously sued for and recovered damages for destruction of property will thereafter achieve a threshold requirement under the No-fault Act which entitles him or her to maintain an action for non-economic loss. However, it is entirely unnecessary, in my judgment, to rewrite the settled law of this Commonwealth in order to accommodate such a litigant and allow ■full recovery. To accommodate such a litigant it is necessary only to follow that corollary to the doctrine of res judicata which holds that a party must seek in one action those damages “arising from a given set of facts [only] ... when the first forum has the ability to give the relief sought____” Bardo v. Commonwealth, Department of Public Welfare, supra 40 Pa.Cmwlth. at 589, 397 A.2d at 1307 (emphasis in original); International Prisoners’ Union v. Rizzo, 356 F.Supp. 806, 810 (E.D.Pa.1973). A second action can always be maintained to obtain relief which the initial court lacked the power or ability to award. Where an action for property damage has been litigated prior to the time when a No-fault threshold has been attained, a court obviously does not have the ability to award damages for non-economic loss. The injured party, therefore, is under no compulsion to seek damages for non-economic loss in that action; and a second action for such damages can thereafter be maintained. See and compare: Daniels v. State Farm Mutual Automobile Insurance Company, supra 305 Pa.Super. at 356, 451 A.2d at 686 and cases cited therein; Restatement, Second, Judgments § 26.

In the instant case, however, appellants’ claims for property damage and non-economic loss could and should have been included in one action. They were part of the same cause of action. Because the judgment in the first action is conclusive of issues which were or might have been raised therein, I agree with the trial court that under existing law a second action cannot be maintained.

I would affirm the judgment of the trial court.

      . As pointed out in Sanchez v. City of Philadelphia, supra, 302 Pa.Super. 184, 448 A.2d 588, 589, footnote 1:
      1. It once was thought that the phrase could be easily defined. Shenandoah Borough v. Philadelphia, 367 Pa, 180, 190, 79 A.2d 433, 438, cert. denied sub nom., School District v. Philadelphia, 342 U.S. 821, 72 S.Ct. 39, 96 L.Ed. 621 (1951) (“There is no difficulty in defining the phrase ‘cause of action.’ ”) However, the Court has more recently acknowledged that the definition is more troublesome than had been thought. See Kuisis v. Baldwin-Lima-Hamilton Corp., supra 457 Pa. [321] at 325 n. 7, 319 A.2d [914] at 918 n. 7 ("This Court has never adopted a comprehensive definition of what constitutes a cause of action, for the excellent reason that no such definition exists.”)

      . Section 301 of the No-Fault Insurance Act, 40 P.S. § 1009.301 provides in part:
      § 1009.301 Tort liability
      (a) Partial abolition. — Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:

        (5) A person remains liable for damages for non-economic detriment if the accident results in:
      (A) death or serious and permanent injury; or
      (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or ...

      . The court stated in Bond v. Gallen, 292 Pa.Super. at 211, 437 A.2d at 9:
      To say, as Donnelly [v. DeBourke, 280 Pa.Superior Ct. 486, 421 A.2d 826 (1980) ] did, that the statute of limitations starts to run from the date of the accident, even when none of the No-fault Act’s thresholds has been reached, is to say that the statute starts to run from a date on which, and even though, the cause of action did not exist. (Emphasis added).
      This court considered Bond, supra, in Myers v. USAA Casualty Insurance Co., 298 Pa.Super. 366, 444 A.2d 1217, 1221 (1982) and stated:

        We reasoned in Bond that until one of the requirements of section 301(a) is met no cause of action against the third party tortfeasor even exists and to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary. (Emphasis added).

      . Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq.

      . This section appears at 40 P.S. § 1009.301(a) as follows:
      (a) Partial abolition. — Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
      (1) An owner of a motor vehicle involved in an accident remains liable if, at the time of the accident, the vehicle was not a secured vehicle.
      (2) A person in the business of designing, manufacturing, repairing, servicing, or otherwise maintaining motor vehicles remains liable for injury arising out of a defect in such motor vehicle which is caused or not corrected by an act or omission in the course of such business, other than a defect in a motor vehicle which is operated by such business.
      (3) An individual remains liable for intentionally injuring himself or another individual.
      (4) A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act. A person is not liable for loss which is not compensated because of limitations in accordance with subsection (e) of section 202 of this act.
      (5) A person remains liable for damages for non-economic detriment if the accident results in:
      (A) death or serious and permanent injury; or
      (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or

        (C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or
      (D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.
      (6) A person remains liable for injury arising out of a motorcycle accident to the extent that such injury is not covered by basic loss benefits payable under this act, as described in section 103.

      . Allocatur was granted by the Supreme Court on March 16, 1982.


author: BROSKY, Judge:

text:
    460 A.2d 337
    Stephen RAGO, Jr. v. Anna L. NACE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed May 13, 1983.

      Mark S. Sigmon, Bethlehem, for appellant.
    John Peter Karoly, Jr., Allentown, for appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   BROSKY, Judge:

This appeal is from the denial of a petition to set aside a settlement. Appellant raises three issues: 1) Whether the court below could direct a verdict for plaintiff without any action on the part of the jury. 2) Whether the counsel for the defendant had the authority to bind the defendant to a settlement agreement without the express authority and understanding of the defendant. 3) Whether the settlement agreement constituted an unexecuted accord which is unenforceable. We affirm.

Issues 1) and 3), above, were not raised below in appellant’s petition to set aside the settlement. They are, therefore, waived for purposes of appellate treatment. Pa. R.A.P. 302(a).

The only issue remaining for our consideration is number 2), above: whether counsel for defendant had the authority to bind the defendant to a settlement agreement without the express authority and understanding of the defendant. Of course, counsel cannot agree for his client to a settlement without his client’s authorization. However, we fail to see the applicability of that legal maxim to the case before us. Appellant’s trial counsel did not bind her to the settlement agreement; appellant herself did so in open court. The trial court recited to appellant the terms of the settlement agreement and appellant evinced her agreement.

THE COURT: It is my understanding that the parties have worked very diligently and hard here to arrive at a settlement, and the Court appreciates the efforts that were put into the parties reaching a settlement in this matter.
In light of the amounts that were going to be discussed about here, I think the parties have reached a fair settlement and done the right thing in this matter.
So, the Court will direct a verdict' in this case in favor of the plaintiff Stephen Rago, Jr., and against the defendant, Anna L. Nace, in the sum of $31,800, said sum to be payable within 45 days of this date; no legal interest being due and payable on said amount within the first 20 days, and legal interest shall then run if not paid within said 20 days, commencing 20 days hereafter.
Anything further, gentlemen?
MR. LANSHE: No, Your Honor.
Anna, did you hear what he said?
MRS. NACE: No.
MR. LANSHE: Okay. She has a little trouble hearing, your Honor.
THE COURT: Mrs. Nace, can you hear me now?
MRS. NACE: Yeah.
THE COURT: All right. According to the settlement which the two of you have agreed to I have entered a verdict in favor of Mr. Rago in the sum of $31,800 which is payable within 45 days of this date. Now, no legal interest will run on that amount for the first 20 days. If it’s paid within that time it’s $31,800. After the 20 days the legal rate of interest will accrue to the agreed upon figure of $31,800. Is that your understanding?
MRS. NACE: Yes.
THE COURT: All right, Mrs. Nace.
MR. KAROLY: Thank you very much, your Honor.
THE COURT: All right.
MR. LANSHE: Thank you, your Honor.
THE COURT: Mr. Frey, bring the jury in.
(The jury was dismissed and the trial concluded.)

A settlement will not be set aside absent a clear showing of fraud, duress or mutual mistake. Greentree Cinemas, Inc. v. Hakim, 289 Pa.Super. 39, 432 A.2d 1039 (1981). No such showing is made on the record.

Depositions were taken ex parte by the appellant after the settlement. These depositions do not indicate that appellant misunderstood the nature of the settlement. Nor do they support any other possible argument to set aside the settlement. At most, they show that appellant was reluctant to settle and believed in the correctness of her side of the case. Such attitudes obviously cannot constitute a bar to the enforcement of the settlement.

Appellant would also have the settlement set aside on the grounds that the settlement colloquy was inadequate. Appellant would have us require the parallel of the in-depth colloquy used in a criminal setting when defendant pleads guilty. We decline to treat this issue on its merits, as it was not raised as an issue in the statement of the issues. Pa.R.A.P. 2116(a).

The denial of the petition to set aside the settlement is affirmed.

WIEAND, J., did not participate in the consideration or decision of this case.

      . We note in passing that appellant's counsel on appeal makes arguments based on appellant’s age and economic condition. These arguments are not relevant to the legal issues before us.

      . However, we note purely as dicta that even if we were to address this issue substantively it would avail appellant nothing.


text:
    460 A.2d 339
    Allen L. FEINGOLD, Appellant, v. The PHILADELPHIA NATIONAL BANK and Bankamerica Service Corp.
    Superior Court of Pennsylvania.
    Argued May 25, 1982.
    Filed May 13, 1983.

      James L. Womer, Jr., Philadelphia, for appellant.
    Anastasius Efstratiades, Philadelphia, for appellees.
    Before BROSKY, WIEAND and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the order dismissing appellant’s complaint with prejudice as a sanction for failure to obey a discovery order of the court below. Appellant contends that the imposition of this particular sanction was inappropriate, constituting an abuse of discretion by the lower court. We agree with appellant and, accordingly, reverse and remand.

On July 13, 1979, appellant filed a complaint against appellees, The Philadelphia National Bank (PNB) and Bankamerica Service Corporation. The complaint included four counts, one in assumpsit and three in trespass. Appellant alleged that appellees had stopped his credit privileges without notice and as a result he had suffered embarrassment, humiliation, and loss of business and goodwill. He averred that appellees’ actions constituted fraudulent misrepresentations; intentional infliction of emotional distress; libel, including libel per se; and breach of contract.

After the close of the pleadings, appellant PNB filed interrogatories requesting, inter alia, the dates and places of the alleged embarrassment, names of witnesses, and amount of financial loss. Appellant failed to answer the interrogatories within the required period and on November 5, 1979, PNB filed a motion for sanctions. As a result, on January 14, 1980, the court below ordered appellant to file answers within twenty days or suffer a judgment of non pros. Appellant answered the interrogatories on February 4, 1980, but did not include in his answers any names of witnesses or any amount or explanation of the alleged business and financial loss. PNB filed a motion for sanctions suggesting the following alternative sanctions: that the court below (1) foreclose appellant from supporting his various claims for embarrassment, humiliation and lost business; (2) prohibit his offering testimony from any of the unnamed witnesses; and (3) dismiss the complaint with prejudice. On September 19, 1980, the lower court ordered appellant’s complaint dismissed with prejudice. This appeal followed.

The imposition of sanctions is governed by Pa.R.C.P. 4019 which provides in relevant part the following:

Rule 4019. Sanctions

(a)(1) The Court may on Motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objection to written interrogatories under Rule 4005____ (Emphasis added)
(viii) a party or person otherwise fails to make discovery to obey an order of court respecting discovery.

Rule 4019 further provides in subdivision (c) the following: (c) The court, when acting under subdivision (a) of this rule, may make,

(1) an order that matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
(4) an order imposing punishment for contempt, except that' a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to make discovery as is just.

Subdivision (i) of Pa.R.C.P. 4019 provides the following in full:

(i) a witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

We recognize that the imposition of specific sanctions is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 281 A.2d 886 (1971). Appellant initially contends the court below abused that discretion because the dismissal of a complaint with prejudice is not contemplated by Rule 4019. However, Rule 4019 is not a limiting rule; it does not restrict the court to the particular sanctions listed. Goodrich-Amram § 4019:1 p. 515. We note that Rule 4019(c)(5) specifically allows the court to make “Such order with regard to the failure to make discovery as is just.” We believe that the sanction of a dismissal of a complaint with prejudice is clearly encompassed by this “catch-all” provision.

Appellant further argues, however, that the imposition of such an extreme sanction in the instant case was not just. As hereinafter explained, we agree with this claim.

“Rule 4019 envisions a procedure by which the court will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to ‘select a punishment which fits the crime.’ Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 252, 407 A.2d 1338, 1341 (1979).” Dunn v. Maislin Transport Limited, 310 Pa.Super. 321, 325, 456 A.2d 632, 634 (1983). In Gonzales, this court, per Judge Wieand, stated that:

Pa.R.C.P. 4019 envisions a procedure by which the court, when confronted with a failure or refusal to answer interrogatories, will exercise judicial discretion in formulating an appropriate sanction order. This requires the court to select a punishment which “fits the crime.” If a written interrogatory asks for information which, although irrelevant, is not determinative of the entire controversy, a default judgment, which in effect is an adjudication of the merits, would seldom, if ever, be appropriate. Under such circumstances, it would be more appropriate to treat the default as an admission or to disallow proof at trial of such undisclosed information. The need to “fit the punishment to the crime” compels the exercise of judicial discretion. The court is required to strike a balance between the procedural need to move the case to a prompt disposition and the substantive rights of the parties.

Gonzales, 268 Pa.Super. at 252, 407 A.2d at 1341.

In the instant case, appellant stated in his answers to the interrogatories that he did not have the name and address of each person who witnessed his refusal of credit although over nine months had passed since the last alleged incident. Also, he supplied no specific data with respect to his financial and business losses, but stated that the persons present at the incidents would have to be consulted to see what business they failed to give him. This answer certainly suggests that appellant has some knowledge of the identities of persons present at the alleged incidents.

The court below thus characterized appellant’s responses as specious and evasive. While we would not disagree with this characterization and believe appellant’s answers merited sanctions under Rule 4019(a)(l)(i) or (a)(l)(viii), the questions remains whether the specific sanction imposed was an appropriate one.

We believe that the interrogatories asked for information' which, although relevant, was not determinative of the entire controversy. Therefore, a dismissal of the complaint with prejudice — the defendant’s counterpart to a plaintiff’s default judgment — would seldom if ever be appropriate. See Gonzales, supra. Although the lower court may have been correct when it stated in its opinion that appellant could not be expected to prove his lost business damages without testimony from witnesses, we find no reason why he could not testify himself as to his embarrassment and humiliation.

Furthermore, “we view the submission of suggested alternative sanctions by [PNB] as a recognition that an appropriate order might not require the extreme penalty imposed in this case.” Dunn, supra. Clearly, had PNB’s alternative sanctions of prohibiting appellant from offering testimony been imposed by the court, the discovery rule would have been properly enforced and appellees would have been properly protected as appellant pursued his claims. Indeed, this sanction is specifically provided for by Rule 4019(i).

The purpose of Rule 4019 is to ensure compliance with proper orders of court and adequate and prompt discovery of matters allowed by the Rules of Civil Procedure. Gonzales, supra. The ultimate sanction of dismissing a complaint with prejudice, when viewed in light of the information sought by the instant interrogatories and the purpose of Rule 4019, constitutes an abuse of discretion. Accordingly, the order entered September 19, 1980, is reversed and the case remanded to the court below for further proceedings consistent with this opinion.

JURISDICTION RELINQUISHED.

      . For each of the alleged incidents in which appellant was denied credit, PNB made the following interrogatories and appellant answered as follows:
      Question: “(e) The name and address of each person who witnessed the refusal of credit:”
      Answer: “Plaintiff does not have the name and addresses of those people at present, but when they are obtained will be happy to supply them.”
      Question: “(h) If this event resulted in loss of business, (as described in paragraph 8 of the Complaint), describe the business loss, and state the name of each person from whom potential business was lost.”
      Answer: “None of the employees or individuals present have given business to or hired plaintiff and each individual would have to be consulted to see what business or employment they have failed to give as a result of the defendant’s actions.”

      .. The lower court also stated that appellant "is an attorney with substantial experience in the field of torts ... [who] ... is too astute and experienced not to have obtained the names of the witnesses..." at the time of the incidents. Although these comments by the court seem somewhat speculative, even if they were accurate, we could not consider them since they set forth facts not of record. McCaffrey v. Pittsburgh Athletic Assn., 448 Pa. 151, 293 A.2d 51 (1972). The opinion of the lower court is, of course, not part of the record. Commonwealth v. Schwartz, 267 Pa.Super. 170, 406 A.2d 573 (1979).

      . We note, however, that on remand we are not limiting the court below to the imposition of this particular sanction; it may still impose any appropriate sanction it deems necessary, but not, of course, a dismissal of the complaint.


text:
    May 6, 1983.
    460 A.2d 841
    Boinski, Appellant v. Boinski.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    460 A.2d 841
    Cafardi v. Seitz, Appellant.
    Petition for Allowance of Appeal Denied Aug. 22, 1983.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    466 A.2d 704
    Commonwealth v. Christman, Appellant.
    Reargument Denied July 19, 1983.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   The judgment of sentence is affirmed.


text:
    460 A.2d 842
    Commonwealth v. Collington, Appellant.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 842
    Commonwealth v. Dennis, Appellant.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   The judgment of sentence of one to five years imprisonment for simple assault is vacated. The judgment of sentence of one and one-half to five years imprisonment for involuntary deviate sexual intercourse is affirmed.


text:
    460 A.2d 842
    Commonwealth v. Elliott, Appellant.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    460 A.2d 843.
    Commonwealth v. Kerry a/k/a Carey, Appellant.
    Petition for Allowance of Appeal
    Denied Nov. 21, 1983.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 843
    Commonwealth v. Loftus, Appellant.
    Petition for Allowance of Appeal Denied Sept. 26, 1983.
    Before CERCONE, P.J., JOHNSON and MONTGOMERY, JJ.
   The order of the lower court is affirmed.


text:
    460 A.2d 843
    Commonwealth v. Minor, Appellant.
    Before CERCONE, P.J., CAVANAUGH and ROWLEY, JJ.
   The judgments of sentence of the lower court are affirmed.


text:
    460 A.2d 843
    Commonwealth, Appellant v. Munn.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Order affirmed.


text:
    460 A.2d 844
    Commonwealth v. Nelson, Appellant.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Order and judgment of sentence affirmed.


text:
    460 A.2d 844
    Commonwealth v. Stubbs, Appellant.
    Petition for Allowance of Appeal
    Denied Sept. 26, 1983.

      Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, J., dissented.


text:
    460 A.2d 844
    Commonwealth v. Townes, Appellant.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 845
    Commonwealth, Appellant v. Walker.

      Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   Order affirmed.


text:
    460 A.2d 845
    Commonwealth v. Ward, Appellant.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    460 A.2d 845
    Commonwealth v. White, Appellant.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 845
    Commonwealth, Appellant v. Zambelli.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    460 A.2d 846
    Dolan et ux., Appellants v. Foy Buick, Inc., et. al.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Judgment affirmed.


text:
    460 A.2d 846
    Holub v. Holub, Appellant.
    Petition for Allowance of Appeal
    Denied Sept. 13, 1983.

      Before SPAETH, BROSKY and JOHNSON, JJ.
   The orders of the court are affirmed.


text:
    460 A.2d 846
    Kaul & Hall Oil & Gas Co., Appellant v. New Shawmut Min.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Elk County President Judge Paul B. Greiner is affirmed.


text:
    460 A.2d 847
    Nernberg, Jr., Appellant v. Ludmer, M.D.
    Petition for Allowance of Appeal Denied Sept. 14, 1983.

      Before CERCONE, P.J., WIEAND and BECK, JJ.
   Affirmed.


text:
    460 A.2d 847
    Pavolik, et vir. v. Johnston, Appellant.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    May 13, 1983.
    460 A.2d 847
    Bader, Appellant v. Horton.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Orders affirmed.


text:
    460 A.2d 847
    Commonwealth v. Amey, Appellant.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 848
    Commonwealth v. Collier, Appellant.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   We affirm the order denying appellant P.C.H.A. relief.


text:
    460 A.2d 848
    Commonwealth v. Conyers, Appellant.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 848
    Commonwealth v. Farano, Appellant.
    Petition for Allowance of Appeal Denied Aug. 31, 1983.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 849
    Commonwealth v. Freeman, Appellant.

      Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 849
    Commonwealth v. Friday a/k/a Hughes, Appellant.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 849
    Commonwealth v. Gans, Appellant.

      Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Order affirmed.


text:
    460 A.2d 849
    Commonwealth v. Jeffers, Appellant.
    Petition for Allowance of Appeal Denied Aug. 23, 1983.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    462 A.2d 291
    Commonwealth v. Johnson, Appellant.
    Reargument Denied July 25, 1983.

      Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 850
    Commonwealth, Appellant v. Jones And Sirchie.
    Petition for Allowance of Appeal Granted Sept. 19, 1983.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   Order affirmed.


text:
    460 A.2d 850
    Commonwealth v. Layne a/k/a Brother Jeremiah, Appellant.

      Before CAVANAUGH, DiSALLE and WATKINS, JJ.
   DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    460 A.2d 850
    Commonwealth v. Manning, Appellant.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, J., filed a memorandum concurring opinion.


text:
    460 A.2d 851
    Commonwealth v. Marusa, Appellant.

      Before BROSKY, McEWEN and WATKINS, JJ.
   BROSKY, J., filed a memorandum dissenting opinion.


text:
    460 A.2d 851
    Commonwealth v. McKahan, Appellant.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    460 A.2d 851
    Commonwealth v. Porter, Appellant.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 852
    Commonwealth v. Rauser, Appellant.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Order affirmed.


text:
    460 A.2d 852
    Commonwealth v. Roache, Appellant.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order affirmed.


text:
    460 A.2d 852
    Commonwealth v. Rompilla, Appellant.
    Petition for Allowance of Appeal Denied Sept. 20, 1983.

      Before BECK, WATKINS and HOFFMAN, JJ.
   Order affirmed.


text:
    460 A.2d 852
    Commonwealth v. Thomas, Appellant.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Order affirmed.


text:
    460 A.2d 853
    Commonwealth v. Yolpone, Appellant.

      Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    460 A.2d 853
    Commonwealth v. Whitner, Appellant.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 853
    Commonwealth v. Williams, Appellant.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 853
    Commonwealth v. Zerby, Appellant.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 854
    Commonwealth ex rel. Baker v. Leslie. Appeal of Vicki Lee Baker.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    460 A.2d 854
    Cox et al., Appellants v. Ortiz.

      Before BROSKY, McEWEN and WATKINS, JJ.
   BROSKY, J., filed a memorandum concurring opinion.


text:
    460 A.2d 854
    D’Ver v. Coe et al. Appeal of Sherman M. Coe.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Final decree affirmed.


text:
    460 A.2d 855
    Estate of Goodman. Appeal of Shirley Goodman, Trustee Ad Litem and Objectant.
    Petition for Allowance of Appeal
    Denied Sept. 30, 1983.

      Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    466 A.2d 704
    Shechter, M.D., Appellant v. Mutual Life Insurance Co. of N.Y.
    Reargument Denied July 18, 1983.
    Petition for Allowance of Appeal Denied Oct. 12, 1983.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order and judgment of non pros affirmed.


text:
    460 A.2d 855
    Fidelity Bank v. Burke etc., Appellants.

      Before CAVANAUGH, BROSKY and CIRILLO, JJ.
   Order affirmed.


text:
    May 20, 1983.
    460 A.2d 855
    Cinema Service, Appellant v. Edbee. Cinema Service v. Edbee, Appellant.
    Petition for Allowance of Appeal
    Denied Sept. 30, 1983.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Affirmed.


text:
    460 A.2d 855
    Commonwealth v. Biddy, Appellant.

      Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    460 A.2d 856
    Commonwealth v. Bradshaw, Appellant.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   The order of the Honorable Frederick B. Smillie, Senior Judge, dated October 22, 1981 is affirmed. The stay order of this court dated November 13, 1981 is hereby withdrawn and of no further effect. The Montgomery County Court of Common Pleas shall proceed forthwith with extradition proceedings. Jurisdiction is relinquished.


text:
    460 A.2d 856
    Commonwealth v. Johnson, Appellant.

      Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 856
    Commonwealth v. Lambert, Appellant.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    460 A.2d 857
    Commonwealth v. Maddalo, Appellant.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 857
    Commonwealth v. Mamuzich, Appellant.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 857
    Commonwealth v. McDaniels, Appellant.
    Before SPAETH, BECK and JOHNSON, JJ.
   Order affirmed.


text:
    460 A.2d 858
    Commonwealth v. Pytak, Appellant.
    Petition for Allowance of Appeal Denied Nov. 16, 1983.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 858
    Commonwealth, Appellant v. Simmons. Commonwealth, Appellant v. Hampton.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Orders affirmed.


text:
    460 A.2d 858
    Commonwealth v. Turner, Appellant.
    Petition for Allowance of Appeal Denied Sept. 21, 1983.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 858
    Commonwealth v. Van Kirk, Appellant.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    460 A.2d 859
    Commonwealth v. Waters, Appellant.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Order denying P.C.H.A. relief is affirmed.


text:
    460 A.2d 859
    Commonwealth v. Whitehead, Appellant.
    Petition for Allowance of Appeal Denied Nov. 22, 1983.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Order and judgment affirmed.


text:
    460 A.2d 859
    Commonwealth v. Windle, Appellant.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    460 A.2d 860
    Foster, Appellant v. Shamrow.
    Before CERCONE, P.J., ROWLEY and CIRILLO, JJ.
   Order and judgment affirmed.


text:
    460 A.2d 860
    Halulko, Appellant v. Halulko.

      Before CERCONE, P.J., WIEAND and BECK, JJ.
   The order of the lower court is affirmed.


text:
    460 A.2d 860
    Harhai v. (Harhai) Hart, Appellant.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    460 A.2d 860
    Hickey, Appellant v. Hickey.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    462 A.2d 291
    Hoffmaster v. Litton Inds., Inc., et al., Appellants.
    Reargument Denied July 25, 1983.
    Petition for Allowance of Appeal Denied Nov. 17, 1983.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The order of the lower court is affirmed.


text:
    460 A.2d 861
    Kiger v. Retos, Jr., Appellant.
    Petition for Allowance of Appeal Denied Oct. 4, 1983.
    Before CERCONE, P.J., WIEAND and BECK, JJ.
   The order of the lower court is affirmed.


text:
    460 A.2d 861
    Olivetti Corp., Appellant v. Silia.
    Reversed and Remanded Nov. 14, 1983.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   ROWLEY, J., filed a memorandum dissenting opinion.


text:
    460 A.2d 861
    Sweeney et ux., Appellants v. Bakeman et ux.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    460 A.2d 861
    May 27, 1983.
    Amp Products Corp. v. Ritter Bros. et al. Appeal of Corbit's Inc.
    Before PRICE, WIEAND and LIPEZ, JJ.
   PRICE, J., did not participate in the consideration or decision of this case.


text:
    460 A.2d 862
    Andrews v. Gushue, Appellant.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Order affirmed.


text:
    460 A.2d 862
    Commonwealth v. Brown, Appellant.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 862
    Commonwealth v. Campbell, Appellant.
    Petition for Allowance of Appeal Denied Aug. 29, 1983.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Order affirmed.


text:
    460 A.2d 862
    Commonwealth v. Coolidge, Appellant.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    460 A.2d 863
    Commonwealth v. Curry, Appellant.
    Petition for Allowance of Appeal Denied Aug. 16, 1983.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Affirmed.


text:
    460 A.2d 863
    Commonwealth v. Duncan, Appellant.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Affirmed.


text:
    460 A.2d 863
    Commonwealth v. Evans, Appellant.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 864
    Commonwealth v. Freeland, Appellant.

      Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 864
    Commonwealth v. Heavner, Appellant.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    460 A.2d 864
    Commonwealth v. Hostetter, Appellant.

      Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 864
    Commonwealth v. Jackson, Appellant.
    Petition for Allowance of Appeal Denied Sept. 19, 1983.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 865
    Commonwealth v. Kreider, Appellant.
    Petition for Allowance of Appeal Denied Aug. 29, 1983.

      Before CAVANAUGH, BECK and MONTEMURO, JJ.
   CAVANAUGH, J., concurred in the result.


text:
    460 A.2d 865
    Commonwealth v. Nock, Appellant.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   Order affirmed.


text:
    460 A.2d 865
    Commonwealth v. Pawlowski, Appellant.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 866
    Commonwealth v. Rosenzweig, Appellant.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order and judgment of sentence affirmed.


text:
    460 A.2d 866
    Commonwealth v. Salladino, Appellant.

      Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 866
    Commonwealth v. Santana, Appellant.
    Petition for Allowance of Appeal Denied Sept. 20, 1983.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Judgment of sentence and order denying P.C.H.A. relief both' affirmed.


text:
    460 A.2d 866
    Commonwealth v. Talley, Appellant.
    Petition for Allowance Appeal Denied Sept. 6, 1983.

      Before McEWEN, JOHNSON and HOFFMAN, JJ.
   Judgment of sentence is affirmed.


text:
    460 A.2d 867
    Commonwealth v. Taylor, Appellant.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   Order denying PCHA relief affirmed.


text:
    460 A.2d 867
    Commonwealth v. Villani, Appellant.
    Petition for Allowance of Appeal Denied Nov. 11, 1983.

      Before SPAETH, BROSKY and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 867
    Commonwealth v. Williams, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 868
    Commonwealth v. Wilson, Appellant.
    Before CERCONE, P.J., CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    460 A.2d 868
    Kopchak, et ux., Appellants v. Springer, et al.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The decree of November 30, 1981 is affirmed.


text:
    460 A.2d 868
    Merrill Natural Resources v. Odell, Appellants.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   The order of the lower court is hereby affirmed.


text:
    460 A.2d 868
    Moore, Appellant v. Brown.

      Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    460 A.2d 869
    Murphy, et al. v. Ryan, Appellant.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    460 A.2d 869
    Murphy, Quigley & Co., v. Ryan, etc., Appellants.

      Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, J., concurred in the result.


text:
    460 A.2d 869
    Slyman, Appellant v. Zeni-McKinney-Williams.
    Petition for Allowance of Appeal Denied Sept. 29, 1983.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment affirmed.


author: CIRILLO, Judge:

text:
    460 A.2d 343
    H.B. ALEXANDER & SON, INC. v. MIRACLE RECREATION EQUIPMENT COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1983.
    Filed May 13, 1983.

      Robert B. Mulhern, Jr., Philadelphia, for appellant.
    Richard H. Wix, Harrisburg, submitted a brief on behalf of appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Dauphin County, dated July 6, 1981, whereby the appellant’s motions for a New Trial and Judgment N.O.Y. were denied and judgment was entered in favor of the appellee in accordance with the verdict of the jury.

In April 1979 the appellee, H.B. Alexander & Son, Inc., seeking to become the general contractor in the expansion of Penn State University’s Beaver Stadium, sent a written request to the appellant, Miracle Recreation Equipment Company, to submit a bid for seating materials. The appellant was advised that H.B. Alexander’s bid would have to be presented to Penn State by May 9, 1979. On May 7 the appellant’s salesman telephoned an employee of H.B. Alexander and offered to supply seating materials for $24,-022.00. The appellee utilized this bid in submitting its own bid to Penn State. Subsequently, H.B. Alexander was awarded the stadium contract and thereafter advised the appellant of this fact in a telephone conversation. Several days later, H.B. Alexander sent a written vendor’s order to the appellant in accordance with its quotation. Some forty days afterwards, the appellant advised H.B. Alexander that its quotation was not a fixed price but merely an estimate. H. B. Alexander purchased the materials elsewhere and brought suit against the appellant for $10,478.00, the difference between the appellant’s quotation and the price they actually paid for the materials. Following a trial before the Honorable John C. Dowling and a jury, H.B. Alexander was awarded a verdict in the amount claimed plus interest and costs. Post-trial motions were filed and denied, and this appeal followed.

The question presented by the appellant to this Court on appeal is whether or not the trial court erred in refusing to apply the Statute of Frauds to the facts of this case.

The parties agree that they are merchants within the context of the Uniform Commercial Code. Regarding the formal requirements of the Statute of Frauds, the Pennsylvania Uniform Commercial Code provides:

(b) Writing confirming contract between merchants.— Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (a) against such party unless written notice of objection to its contents is given within ten days after it is received.

The Act of November 1, 1979, P.L.255, No. 86, Sec. 1, effective January 1, 1980, 13 Pa.C.S.A. § 2201.

The appellant alleges that the vendor’s order is insufficient to satisfy the Statute of Frauds since it contains conditions precedent to the existence of a contract, and it does not’ state that it is in confirmation of any contract. We see no need to reach the merits of these allegations.

Our attention, rather, is summoned to the intent of the legislature as embodied in section 1102 of the Uniform Commercial Code as follows:

§ 1102. Purposes; rules of construction; variation by agreement
(a) Title to be liberally construed.—This title shall be liberally construed and applied to promote its underlying purposes and policies.
(b) Purposes and policies of title.—Underlying purposes and policies of this title are:
(1) To simplify, clarify and modernize the law governing commercial transactions.
(2) To permit the continued expansion of commercial practices through custom, usage and agreement of the parties.
(3) To make uniform the law among the various jurisdictions.
(c) Variation of title by agreement.—The effect of provisions of this title may be varied by agreement, except as otherwise provided in this title, and except that the obligations of good faith, diligence, reasonableness and care prescribed by this title may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.
(d) Effect of “unless otherwise agreed”.—The presence in certain provisions of this title of the words “unless otherwise agreed” or words of similar import does not imply that the effect of other provisions may not be varied by agreement under subsection (c).

The Act of November 1, 1979, P.L.255, No. 86, § 1, 13 Pa.C.S.A. § 1102.

Furthermore, Judge Watkins in speaking for a panel of this Court expressed, “The purpose of the Uniform Commercial Code which was written in terms of current commercial practices, was to meet the contemporary needs of a fast moving commercial society.” Arcuri v. Weiss, 198 Pa.Super. 506, 510, 184 A.2d 24, 26 (1962).

Testimony of agents and witnesses for both parties indicates that the usual manner of conducting business between general contractors, subcontractors and suppliers is based upon oral bids received over the telephone, often within hours of the time when the general contractor will submit a bid to the owner or developer. Moreover, testimony evidenced that this procedure was followed by the present parties in their previous transactions.

In Duffee v. Judson, 251 Pa.Super. 406, 414, 380 A.2d 843, 847 (1977), we stated:

We believe that 2-201 of the UCC by its own terms, permits a party to waive the statute of frauds. Moreover, 2-201 does not by its terms operate as a bar nor does it destroy a plaintiffs cause of action. In fact, the Code provides that under certain circumstances, oral contracts may be enforced.

It is essential that general contractors be allowed to accept and rely on telephone bids from subcontractors in arriving at their final bids since time is often an important factor. Clearly the appellant was aware of this generally accepted custom and in fact often used this practice in its transactions with general contractors. Likewise, we note that the appellant was aware that H.B. Alexander relied on its quotation in making its bid, the appellant knew that H.B. Alexander was awarded the construction contract, and the appellant took over forty days to renege on its quoted price after receiving the vendor’s order containing detailed items. Also, at no prior time did the appellant give any indication that its quotation was merely an estimate.

Keeping in mind the guidance furnished by our courts and legislature, we find that the parties had entered into a binding oral contract and that through its conduct and by its course of dealing, the appellant waived the provisions of the Statute of Frauds in the Uniform Commercial Code in the current action. This holding is consistent with the language of the Superior Court in Axler v. First Newport Realty Investors, 279 Pa.Super. 14, 17, 420 A.2d 720, 722 (1980) which voiced:

The purpose of the statute “is the prevention of successful fraud by inducing the enforcement of contracts that were never in fact made. It is not to prevent the performance or the enforcement of oral contracts that have in fact been made; ...

Having found no error committed by the trial court in upholding this contract, we therefore affirm judgment.

Order and judgment affirmed.

      . 13 Pa.C.S.A. § 2201 et seq. re-enacts the Pennsylvania Uniform Commercial Code (formerly at 12A P.S. § 2-201 et seq.) without change in substance.

      . The appellant claims that the conditions precedent in the vendor’s order are found in the words, "to make any agreement valid sign, date and return copy at once. Advise definite shipping date and if by rail or truck."

      . Testimony, as mentioned above, is relevant to the interpretation of an agreement as Section 2208(b) of the U.C.C. expresses:
      (b) Construction of express terms and performance.—The express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance and course of performance shall control both course of dealing and usage of trade (section 1205).
      The Act of November 1, 1979, P.L.255, No. 86, Sec. 1, 13 Pa.C.S.A. § 2208(b).
      Furthermore, the Comment following 12A P.S. § 2-208 states: Purposes:
      2. Under this section a course of performance is always relevant to determine the meaning of the agreement. Express mention of course of performance elsewhere in this Article carries no contrary implication when there is a failure to refer to it in other sections.


author: WATKINS, Judge:

text:
    460 A.2d 346
    COMMONWEALTH of Pennsylvania v. Eric HANKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1981.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Denied Aug. 24, 1983.

      Leonard Rubin, Philadelphia, for appellant.
    Deborah Fox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This is a direct appeal from judgment of sentence. We now affirm in part and dismiss in part.

Appellant was arrested on November 5, 1979 and charged with burglary, criminal trespass, possession of an instrument of crime generally, and criminal conspiracy. The Philadelphia Defenders Office was appointed to represent appellant at trial. A motion to suppress evidence was filed and a hearing on the motion was held July 23, 1980 before Judge Thomas A. White. The motion was denied. Defendant thereupon waived his rights to a jury trial and to a recusal request in open court following a full colloquy. Appellant’s trial counsel joined the district attorney in stipulating that all the relevant and admissible testimony from the suppression hearing be incorporated into the record of trial, also before Judge White, which followed almost immediately after the denial of the suppression motion. Judge White found appellant guilty of attempted burglary, conspiracy, and possessing an instrument of crime generally. Appellant was acquitted of the criminal trespass charge. Counsel for appellant filed no post-verdict motions, but appellant himself filed pro se motions. The motions were denied on September 17, 1980 and appellant was sentenced that same day. On the burglary and criminal conspiracy charges the court sentenced appellant to eighteen months to three years on each charge to be served concurrently. On the remaining conviction he was given a suspended sentence.

Appellant filed a timely appeal from the attempted burglary conviction only. On July 27, 1981 appellant petitioned for allowance to amend his appeal to include the criminal conspiracy and the possessing on instrument of crime convictions as well. The petition was granted without prejudice to the Commonwealth’s right to brief or argue that these latter appeals were untimely. We agree with the Commonwealth that the latter two convictions were not timely appealed and hence are not properly before us. See Commonwealth v. Hill, 267 Pa.Superior Ct. 140, 142 n. 1, 406 A.2d 558, 558 n. 1 (1979).

Appellant now argues that the evidence is insufficient to sustain the attempted burglary conviction. Reading the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973) we believe the court could properly find appellant guilty of attempted burglary. Reading the evidence in that light, the facts as developed at trial are these. On November 5, 1979 at 4:30 a.m. one officer . Wilson of the Philadelphia Police Department responded to a radio call about a burglary in progress near the corner of Germantown and Somerset Streets. Upon arriving at the scene Officer Wilson observed appellant (known to him because of a previous arrest), and a companion as they approached a public telephone on the wall of the Raisman Toy Store at the corner in question. Appellant was carrying something in his hands. Appellant looked at Officer Wilson and recognized him. Appellant then placed the items on a ledge near the telephone. The two men then walked away from the scene. Officer Wilson went to the telephone and found a claw hammer and a screwdriver which had been altered such that it looked much like a chisel. The officer then observed a piece of cardboard partially covering a hole in the wall in the toy store. This hole was about fifteen feet from the spot where appellant and his companion were when Officer Wilson first observed them. Officer Wilson then followed the two men and arrested them. At the time of the arrest both appellant and his companion were wearing heavy work gloves, despite the relative balminess of the evening. Their clothes and the gloves were covered with dust closely resembling a small pile of dust underneath the hole in the toy store’s wall. The owner of the toy store testified at trial that the hole had not been there the day before, and that he had not authorized appellant or anyone to make such a hole.

It is clear that the Commonwealth must prove its case beyond a reasonable doubt, but it is equally clear that this may be done by circumstantial evidence alone. Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975). The trial court concluded that the time of the occurrence, the proximity of appellant to the hole and the dust on his clothes, as well as the abandonment of the tools following his recognition of Officer Wilson were sufficient to allow an inference of guilt beyond a reasonable doubt. We agree that the evidence was sufficient.

Represented by new counsel on appeal appellant also contends that trial counsel was ineffective. He raises several such claims. His first claim is that counsel was ineffective for allowing appellant to waive his right to jury trial and to have the case tried by the suppression motion judge, because the suppression court heard testimony from Officer Wilson concerning appellant’s arrest by the officer on other burglary charges. Of course, appellant waived his jury trial after the court conducted a full colloquy. He has not claimed that counsel’s alleged ineffectiveness in any way constituted an extraordinary circumstance undermining the voluntariness of the waiver of that right. Since he has not attacked the voluntariness of his jury trial waiver his counsel’s ineffectiveness, if any, is irrelevant, and we need not address the issue.

Second among appellant’s ineffectiveness claims is the contention that counsel was ineffective when he agreed to use the suppression motion evidence as part of the record at trial. Appellant contends that this was ineffective because of the danger that the court might not remember the evidence, or might not be able to distinguish testimony relevant to the question of guilt from that testimony relevant only to the suppression motion. Of course, counsel cannot be ineffective for failing to raise meritless issues, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). This argument is clearly meritless. First of all, the time lapse between the suppression hearing and trial was only a few moments. Moreover, when a trial judge sits as the trier of fact he is presumed to be competent, learned in the law and—unlike a jury—capable of distinguishing relevant from irrelevant and admissible evidence from prejudicial evidence. Cf. Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978); Commonwealth v. Rouse, 207 Pa.Superior Ct. 418, 421-22, 218 A.2d 100, 102 (1966); Commonwealth v. Berkery, 200 Pa.Superior Ct. 626, 190 A.2d 572 (1963). The trial judge sitting as suppression court only heard evidence of appellant’s prior arrest. This evidence was certainly not inflammatory and the trial court could easily have divorced it from his mind at the trial stage.

Lastly, appellant contends that counsel was ineffective for háving failed to inform him of the necessity of filing detailed post-verdict motions or risk waiving issues of having failed to file post-verdict motions, of having failed to file a brief arguing in favor of appellant’s pro se post-verdict motions, and in failing to request transcription of the notes of testimony. Appellant, however, has failed to assert any bases on which these alleged inactions can be considered ineffective. These allegations are made, as it were, in a vacuum. Absent even an allegation of claims foregone there is nothing whatsoever for us to evaluate. There being no allegation that claims of arguable merit were foregone there can be no ineffectiveness of counsel.

Accordingly, we affirm the judgment of sentence as to the attempted burglary conviction (Philadelphia Court of Common Pleas, November Term, 1979, No. 1478), and dismiss the appeals from the possessing an instrument of crime conviction (No. 1480) and the conspiracy conviction (No. 1481) as having been untimely filed.

Affirmed in part, and dismissed in part.

      . 18 Pa.C.S. §§ 3502, 3503, 907(a), and 903.