text:
    507 A.2d 857
    Thomas M. D’AURIA, Appellant, v. ZURICH INSURANCE COMPANY, Hartford Insurance Company, Argonaut Insurance Company, Pennsylvania Medical Society Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed April 7, 1986.

      Wendelynne J. Newton, Pittsburgh, for appellant.
    James A. Beinkemper, Sr., Pittsburgh, for Hartford, ap-pellee.
    Kenneth J. Nolan, Pittsburgh, for Argonaut, appellee.
    Mark Neff, Washington, for Pa. Med., appellee.
    Before CAVANAUGH, JOHNSON and WATKINS, JJ.
   CAVANAUGH, Judge:

Dr. Thomas M. D’Auria appeals from the order of August 30, 1984 entered in the Court of Common Pleas of Fayette County denying his motion for summary judgment and entering judgment in favor of appellees. The sole question in this appeal is whether three insurance companies had a duty to defend the appellant in a malpractice suit filed against him. We hold they did not.

In 1981, Dr. D’Auria, who practiced pediatric medicine in Uniontown, Pennsylvania, was sued for malpractice by a former patient, Mr. Gregory Egnot. Egnot was a patient of Dr. D’Auria’s from the time of his birth in 1957 until 1963. In Egnot’s complaint against Dr. D’Auria, he alleged that D’Auria was negligent and careless both during and after the time he was D’Auria’s patient and avers that this negligence was a cause of the renal failure he suffered in 1979.

Each of the three insurance companies involved in this dispute did not insure appellant until long after he treated Egnot. Hartford insured him from 7/22/73 to 7/22/76. Argonaut insured him from 7/22/76 to 1/1/78. PMSLIC insured him from 1/1/78 to 6/30/82. All three provided “occurrence” type policies. “An ‘occurrence’ policy protects the policyholder from liability for any act done while the policy is in effect, whereas a ‘claims made’ policy protects the holder only against claims made during the life of the policy.” St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531 n. 3, 98 S.Ct. 2923 n. 3, 57 L.Ed.2d 932 (1978). According to appellant, all three policies stated:

“[T]he company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false or fraudulent____”

II] The duty to defend is separate from and greater than the duty to indemnify. Pacific Indem. Co. v. Linn, 590 F.Supp. 643 (E.D.Pa.1984) aff'd. 766 F.2d 754 (3d Cir.1985). In purchasing insurance, the appellant here purchased not only the insurer’s duty to indemnify when claims which fall within the policy’s coverage are successful, but also protection against those groundless, false or fraudulent claims regardless of the insurer’s ultimate liability to pay. Zeitz v. Zurich General Accident & Liability Ins. Co., 165 Pa.Super. 295, 67 A.2d 742 (1949). Not all claims asserted against an insured, however, activate the insurer’s duty to defend. In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insured. St. Paul Surplus Lines Ins. Co. v. 1401 Dixons, 582 F.Supp. 865 (E.D.Pa.1984). “It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” Springfield Tp. et al. v. Indemnity Ins. Co. of North America, 361 Pa. 461, 64 A.2d 761 (1949). See also Vale Chemical Company v. Hartford Acc. & Indem., 340 Pa.Super. 896, 490 A.2d 896 (1985). East Coast Equipment Co. v. Maryland Casualty Co., 207 Pa.Super. 383, 218 A.2d 91 (1966). After discerning the facts alleged in the complaint, we then must decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. The much quoted language of Judge Learned Hand clearly delineates the well-settled principle.

“[I]f the plaintiff’s complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defence, until it could confine the claim to a recovery that the policy did not cover.”

Lee v. Aetna Casualty & Surety Company, 178 F.2d 750, 752 (2d Cir.1949). See also Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959). If the factual allegations of the complaint on its face states a claim to which the policy potentially applies, the insurer must defend. Pacific Indem. Co. v. Linn, supra; Brugno-li v. United Nat. Ins. Co., 284 Pa.Super. 511, 426 A.2d 164 (1981); Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963); and Seaboard Industries, Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978).

Even though the insurance policy states that the insurer must defend against allegations which are groundless, false, or fraudulent, this does not mean that the insurer has a duty to defend any suit filed against the insured. The duty to defend is limited only to those claims covered by the policy. Warner v. Employers’ Liability Assurance Corporation, 390 Pa. 62, 133 A.2d 231 (1957); Wilson v. Maryland Casualty Company, 377 Pa. 588, 105 A.2d 304 (1954). Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true. It does not matter if in reality the facts are completely groundless, false or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend. See Warner v. Employers’ Liability Assurance Corporation, supra; Wilson v. Maryland Casualty Company, supra.

In the instant case, Egnot’s complaint against the doctor alleged that when the doctor treated him from 1957 to 1963, he was negligent or careless in failing to diagnose and have treated a medical condition that was a consequence “of a lower urinary tract obstruction secondary to posterior urethral valves.” This kidney condition was surgically treated in December of 1962 or January of 1963 by another physician. After 1963, Egnot was never again treated by D’Auria. Egnot experienced renal failure in March of 1979. He attributes the cause of his renal failure to 1) D’Auria’s failure to diagnose and have treated the aforementioned condition which was eventually treated by surgery in December of 1962 or January of 1963, and 2) appellant’s failure to provide appropriate follow-up care and treatment after Egnot’s release from the hospital in January, 1963. The complaint states: “As a combination of the foregoing occurrences, Plaintiff suffered loss of renal tissue which results in renal failure, which loss of renal tissue could have been avoided or minimized if Plaintiff had received appropriate diagnosis, care and treatment throughout the course of his renal condition.”

We must determine if the facts alleged on the face of the complaint state a claim which is covered by any of the three policies. If so, there is a duty to defend. Because these policies were “occurrence” policies, we must decide whether the facts allege an “occurrence” that falls within any of the policies’ coverages.

We will refer to and rely upon occurrence cases which deal with indemnity. We believe that these cases may be appropriately used in a duty to defend context. The major difference between indemnity and duty to defend cases is that in the latter, the complaint is the sole guide to the facts. As such, we shall use the complaint as our sole guide. The “time of the occurrence” has spawned numerous reported decisions and a fair amount of confusion. See Annot., 37 A.L.R. 4th 382 (1985). We find no Pennsylvania state court decision directly on point, but have sought guidance from well-reasoned opinions in other courts.

In determining whether the facts allege an “occurrence” that falls within any of the three policies’ coverages, we must ascertain what is the “occurrence” alleged, and when it happened. The three insurance policies at issue insured Dr. D’Auria from 7/22/73 to 6/30/82. If an “occurrence” is alleged to fall anywhere within that time period, one or more of the insurance companies has a duty to defend.

We must first determine how many “occurrences” are present in Egnot’s complaint. “The general rule is that an occurrence is determined by the cause or causes of the resulting injury. ‘[T]he majority of jurisdictions employes [sic] the ‘cause theory’.....Using this analysis, the court asks if ‘[t]here was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage.’ ’ ” Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir.1982). In Appalachian, an employer adopted certain employment policies in 1965 which, according to several female employees, discriminated against women over the next several years. The court of appeals affirmed the lower court and held that despite the fact that there were multiple injuries of different magnitudes which extended over a period of time, there was but one occurrence. “The injuries for which [the employer] was liable all resulted from a common source: [the employer’s] discriminatory employment policies.” We adopt the “cause of the loss” test in the instant case to determine the number of “occurrences” present in Mr. Egnot’s complaint.

Even if completely true, we find that Egnot’s complaint alleges only one occurrence. The cause of Mr. Egnot’s alleged renal failure was the alleged mistreatment of his condition by Dr. D’Auria. We note that the complaint superficially states two causes for the renal failure: 1) Dr. D’Auria’s pre-1963 failure to diagnose and have treated the condition that was eventually treated in January 1963, and 2) his post-1963 failure to adequately follow up and care for Egnot. Nevertheless, we believe that the substance of the complaint alleges only one cause. The complaint indicates that the doctor mishandled Egnot’s treatment in not diagnosing or acting quickly enough to treat the condition that contributed to the renal failure, and also in not recognizing the severity of that condition and treating it accordingly. We do not think that it is appropriate to examine the doctor’s alleged mishandling of a case in minutia in order to single out individual instances of want of care and to label them as separate “causes”. Nor do we think it appropriate to label the doctor’s failure to follow-up on a misdiagnosed case after the patient has left his care as a separate and distinct cause of an injury which later befalls the former patient. Appellant alleges that the three policies cover injuries which arise out of the failure to render professional services. This does not alter our conclusion. Mr. Egnot left Dr. D’Auria’s care in 1963 and developed renal failure in 1979. We believe that if the doctor’s neglect was a cause of Egnot’s renal failure, it would be because of his mishandling and misdiagnosis of the case while Egnot was a patient of his. The commonly accepted nature of the practice of medicine commends this result. In every instance in which a doctor mistreats a patient, whether by misdiagnosis or other negligence, the patient may leave the doctor’s care only to later experience consequent injury and losses due to the mistreatment. In such a case, it would forsake common sense to say that there are multiple causes of the injury, the mistreatment and the doctor’s repeated failure to follow up. Certainly, one trained in medicine might possess the acumen to single out myriad mistakes in a doctor’s treatment of a patient and to label each as a “cause” of resulting injury. We believe, however, that to divide the doctor’s mistreatment into multiple causes here would be an artificial and arbitrary division. The substance of Egnot’s complaint alleges one cause, Dr. D’Auria’s mistreatment of his renal condition.

Having determined that there was one “occurrence”, we must now determine when it took place. An occurrence happens when the injurious effects of the negligent act first manifest themselves in a way that would put a reasonable person on notice of injury. In Appalachian Ins. Co. v. Liberty Mut. Ins. Co., supra, the court stated that “[wjhile the ‘cause’ test is appropriate for determining whether there is a single occurrence or multiple occurrences, it is not applicable in determining when an occurrence takes place. We hold that the determination of when an occurrence happens must be made by reference to the time when the injurious effects of the occurrence took place.” Id. at 61-62. The party alleging the negligence need not have actually discovered the injurious effects at the time they first manifested themselves. See e.g., Silver Eagle Co. v. National Union Fire Ins. Co., 246 Or. 398, 423 P.2d 944, 40 A.L.R.3d 1432 (1967). The court in Eagle-Picher Industries, Inc. v. Liberty Mut. Ins., 682 F.2d 12 (1st Cir.1982) cert. den. 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 held that an “occurrence during the policy period” takes place when both the accident and the resulting injury occur in the policy period, but that actual medical diagnosis is not necessary. The court noted that although actual diagnosis of the disease would promote certainty and ensure that coverage is easily ascertainable, it found that the policy language in question required that exposure to asbestos result in bodily injury during the policy period, not that it be medically diagnosed. In Transamerica Insurance Company v. Bellefonte Insurance Company, 490 F.Supp. 935 (E.D.Pa.1980), the court found two separate “occurrences”. In that case, drugs were ingested by pregnant women during the time insurer A insured the drug manufacturer, and deformed children were born during the time insurer B provided coverage. In deciding when the injuries occurred, the court held that it was reasonable to conclude that the injuries to the children certainly occurred while they were still in the womb, and insurer A was liable for their damages. On the other hand, the parents’ damages, including increased medical and child rearing expenses resulting from the births plus the emotional trauma caused by the births, occurred only at the time of the children’s births and so insurer B was liable for these damages. Thus, an “occurrence” happens when injury is reasonably apparent, not at the time the cause of the injury occurs. The cause and the injury may happen at very distinct time periods.

In Gulf v. Dolan, Fertig, and Curtis, — Fla. —, 433 So.2d 512, 37 A.L.R.4th 373 (1983), the court wrote: “An occurrence policy is a policy in which the coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.” Id. at —, 433 So.2d at 513. And, “[occurrence policies are built around an insurer who is liable for the insured’s malpractice, no matter when discovered, so long as the malpractice occurred within the confines of the policy period.... The occurrence insurer, then, is faced with a ‘tail’ that extends beyond the policy period itself.” Id. at —, 433 So.2d at 515.

Turning to the instant case, we must decide at what point in time the injurious effects of the doctor’s negligence first manifested themselves in a way that could be ascertained by reasonable diligence. We hold that the effects of the negligence first manifested themselves prior to the coverage periods of any of the three policies. Therefore, none of the appellee insurance companies had a duty to defend.

Mr. Egnot’s complaint avers that his renal failure in 1979 was the culmination of ongoing renal deterioration which should have been diagnosed in 1963. While he does not aver that total renal failure was apparent in 1963, we nevertheless believe that, according to Egnot’s complaint, the injury due to the doctor’s negligence was first manifested in a way that could be ascertained by reasonable diligence well before any of the three policies took effect in 1973. The allegation of ongoing renal deterioration which should have been diagnosed and treated in 1963 seems to us to be a definite injury.

Decisions from other courts indicate that an “occurrence” cannot happen until the injury or damage is irremediable. See e.g., Bartholomew v. Insurance Company of North America, 502 F.Supp. 246 (D.R.I.1980) Aff'd. 655 F.2d 27 (1st Cir.1981). In the instant case, Egnot’s injury appears to have been definite in 1963 and, although it would continually worsen, it appears to us to be a sufficient manifestation of injury to satisfy the test of an occurrence. We can see no reason in waiting to pinpoint the time of the “occurrence” until such time as ultimate injury becomes a certain proposition.

Moreover, we think that as a matter of policy, the three appellee insurance companies should not be forced to defend for an injury which was, at least in embryonic form, reasonably apparent thirteen years before any of them undertook to provide occurrence coverage. “[A]n insured cannot insure against something which has already begun.” Appalachian Insurance Co. v. Liberty Mut. Insurance Co., supra.

Judgment affirmed.

      . The rights of the other appellee, Zurich Insurance Company, are not affected by our decision, and we need not include it in our discussion.

      . Egnot also alleged that another doctor’s negligence was also a cause of his renal failure. This allegation is not pertinent to our discussion.

      . It is unclear whether Dr. D’Auria treated Egnot after his release from the hospital. Dr. D’Auria did not treat Egnot after 1963.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    507 A. 2d 862
    Virginia LEE, Appellee, v. William LEE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed April 7, 1986.

      Blane A. Black, Monongahela, for appellant.
    Carl P. Izzo, Jr., Uniontown, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether the trial court properly refused to reduce an agreed order for the payment of alimony despite a substantial change in the economic circumstances of the obligor. The trial court held that it was powerless to alter the order because it had been entered by agreement and refused to reduce it even though the income of the obligor, a steelworker, had been reduced substantially by a forced, early retirement. We reverse and remand for further proceedings.

William F. Lee, the appellant, and Virginia D. Lee, the appellee, were married on August 9, 1975. Appellee commenced an action in divorce on August 26, 1980. By agreement dated October 31, 1980, the parties divided their marital property and made provision for alimony as follows:

3. ALIMONY
The parties have this day agreed that a Support Order in favor of the Wife be entered by agreement in the Probation Office of Fayette County, Pennsylvania, at No. 1483 G.D. of 1980, wherein and whereby the Husband agrees to pay the Wife permanent alimony in the sum of $450.00 per month and in addition to maintain hospitalization insurance and benefits for his Wife through his employer.

In fact, this was merely an acknowledgement of an agreement and order of support which had been entered on October 17, 1980 as follows:

AGREEMENT FOR SUPPORT ORDER
AND NOW, October 17,1980,1, William Lee Defendant named herein, having been advised of my legal rights in this matter, do hereby agree that the Court may enter an Order directing that I pay the costs and the sum of ($450.00) Four Hundred and Fifty Dollars per month, for the support of his wife, Virginia. In addition, the defendant agrees to maintain hospitalization for his wife through his employment. I understand that ALL payments are to be made through the Domestic Relations Office of Fayette County, commencing November 1, 1980.
/s/ William F. Lee Defendant /s/ Virginia Lee Plaintiff
ORDER
NOW, to-wit, this 17 day of October, 1980, upon presentation of the foregoing Agreement, it is hereby ordered that, William Lee, Defendant, pay the costs in the sum of $-in monthly installments of Ten Dollars and pay the sum of $450.00 per month, through the Domestic Relations Office for the dependents above named, effective November 1, 1980.
BY THE COURT:
/&/ “Frank”
Judge

A decree in divorce was entered on February 13, 1981.

On November 19,1984, appellant filed a petition to reduce the order which had been entered by agreement. He alleged that he had remarried and, because of forced, early retirement, his income had decreased from $2000 per month at the time the order was entered to $1100 per month at the time of filing the petition. A hearing officer recommended that the order be reduced to $425 per month. Appellant filed exceptions to this recommendation, and a hearing was held before the court. The hearing court accepted the recommendation of the hearing officer, but did not further reduce the order. After an appeal had been filed in this Court, the hearing judge prepared an opinion, pursuant to Pa.R.App.P. 1925(a), in which he said that he did not further reduce the order because he did not believe he could alter the parties’ agreement.

Section 501 of the Divorce Code of April 2, 1980, P.L. 63, No. 26, provides in pertinent part as follows:

§ 501. Alimony
(e) Any order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.
(f) Whenever the court shall approve an agreement for the payment of alimony voluntarily entered into between the parties, such agreement shall be deemed the order of the court and may be enforced as provided in section 503. (footnote omitted)

This section is clear. “Any order ... is subject to further order of the court upon changed circumstances.” Where a court order is entered pursuant to agreement, the order is subject to modification in the event of a substantial change in circumstances. Hollman v. Hollman, 347 Pa.Super. 289, 306, 500 A.2d 837, 846 (1985).

In the instant case, the intent of the parties is clear. They did not create a contractual obligation for the payment of alimony which was separate and apart from the court order. Instead, their only agreement was “that a Support Order in favor of the Wife be entered by agreement____” This agreement merged in the court order. Appellant’s obligation to pay alimony was to be enforced as a court order and not as a contractual obligation. Therefore, it was subject to modification by the court in the event of changed circumstances of a substantial nature. Holl-man v. Hollman, supra; Commonwealth ex rel. Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984). Compare: Madnick v. Madnick, 399 Pa.Super. 130, 488 A.2d 344 (1985); Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983).

The role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an error of law or abuse of discretion by the trial court.

An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220 (1984), quoting Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 125 (1981).

In this case, the only reason given by the trial court for its order was its belief that it was powerless to reduce the alimony order because of the agreement between the parties. This was error and an abuse of discretion. There was no good reason for the trial court to refuse to consider the changed financial circumstances of the appellant brought about by forced, early retirement. Therefore, we reverse and remand for further consideration in accordance with this opinion. The trial court may, if it deems it necessary, take additional testimony to assist it in determining whether appellant’s present financial circumstances require that the alimony order be reduced.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

      . The reference to No. 1483 G.D. of 1980 was the pending divorce action.

      . The panel decision in Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985), is factually distinguishable from the instant appeal. To the extent that Stanley suggests that an agreed court order for the payment of alimony cannot be modified in the event of a substantial change in circumstances, moreover, it has been overruled sub silentio by the opinion of the court en banc in Hollman v. Hollman, supra.


author: MONTGOMERY, Judge:

text:
    507 A.2d 865
    Eugene T. RIEK and Cecelia L. Riek, Husband and Wife, and Edward R. Mindyas and Josephine E. Mindyas, Husband and Wife, Appellees, v. Willit P. BINNIE and Betty Binnie, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed April 8, 1986.

      Kevin L. Sanders, Assistant Public Defender, Johnstown, for appellants.
    James F. O’Malley, Johnstown, for appellees.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellees instituted this action seeking a declaratory judgment with regard to the rights of the Defendant-Appellees to use a private road in Westmont Borough, Cambria County, for ingress and egress. The Appellees own properties on either side of the private drive, known as Francis Alley, and sought to prevent the Appellants from using that road for ingress and egress. Property owned by the Appellants is situated at the end of Francis Alley, and they have asserted rights to use the alley based upon grounds including public easement, easement by necessity, private easement and rights obtained by prescriptive use of the property for ingress and egress for a period in excess of twenty-one years.

Following a trial, the lower court entered an order in favor of the Appellees. It held that the Appellants only had a permissive right to continue to use Francis Alley so long as they did not interfere with the use of it by the Appellees. Moreover, the lower court’s order declared that if the Appellees gave notice to the Appellants of an intention to terminate and withdraw the alleged permissive right of the Appellants to use Francis Alley, or if the Appellants interfered in any way with the use by the Appellees of the right of way, the Appellants’ rights to use the alley could be terminated.

The lower court determined that the Appellants had not established a public right of use with regard to the alley, had not established an easement on grounds of necessity, and had not supplied proof with regard to their claim of rights based on the theory of prescriptive easement. The lower court did not fully address the Appellants’ claims of a private right of easement. We need only address our attention in this case to the last mentioned basis upon which the Appellants claimed a right to use Francis Alley. We find that the pertinent facts and applicable law mandate a finding that the Appellants enjoy a private right to use Francis Alley, for ingress and egress, which cannot be extinguished by any notice or similar action by the Appel-lees.

The record shows that all of the land in issue in this case, including the properties owned by the Appellees and Appellants, as well as Francis Alley, were acquired as part of a seventy-five acre plot by Christopher Palliser from Cambria Iron Company by deed dated December 1, 1877, recorded on January 28, 1878 in the Recorder’s Office of Cambria County. By a Plot Plan dated August 13, 1907, Christopher Palliser laid out streets and alleys and individual lots in the parcel, and his Plot Plan was thereafter filed in the Cambria County Recorder of Deeds Office on October 31, 1911, by Mr. Palliser’s heirs. That Plot Plan included Francis Alley. Subsequently, by a succession of conveyances wherein Francis Alley continued to be used as a boundary in the description of the properties conveyed, both the Appellees and the Appellants have acquired their parcels in the Palliser Plot Plan. It is noted that Francis Alley has never been formally accepted as a street by Westmont Borough.

It is clear that any street, lane, or alley laid out by any person in a plot or plan of lots, which has never been opened to or used by the public for twenty-one years after the initial laying out of the same, may not thereafter be opened for public use or easement, without the consent of the owners of the abutting lots. Act of May 9, 1889, P.L. 173, No. 192, § 1, 36 P.S. § 1961; Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954). However, while the public easement or right of use in such lanes or alleys is lost as the result of the passage of such time and lack of use, the purely private rights of easement of individual property owners in the plan of lots to use the alley or way is not extinguished. See Cohen v. Simpson Real Estate Corporation, 385 Pa. 352, 123 A.2d 715 (1956); Rahn v. Hess, Supra; Drusedum v. Guernaccini, 251 Pa.Super. 504, 380 A.2d 894 (1977).

Accordingly, it is evident that the Appellants enjoy the private right to use Francis Alley for ingress and egress as a result of the recorded Palliser Plot Plan, despite the fact that the municipal body never accepted Francis Alley as a public way. The lower court erred in its conclusion that the Appellants’ rights to use the alley could be defeated by any type of notice from the Appellees. Accordingly, we must reverse.

The order of the lower court is hereby reversed, and this case is remanded to the lower court with directions that a declaratory judgment be entered in favor of the Defendant-Appellant. Jurisdiction is not retained.

      . In view of this finding, it would serve no purpose for us to address the Appellants’ remaining contentions regarding prescriptive use, easement based upon necessity, and a public right of access to Francis Alley. Also, we must deny the Appellees’ Motion to Dismiss, which was grounded upon the assertion that the Appellants wrongfully failed to print a part of the record for this appeal. The reproduced record before us was adequate to address the issue of private right of use upon which we have based our decision in this case.


text:
    507 A.2d 867
    PITTSBURGH NATIONAL BANK, a National Banking Association, Appellant, v. John R. LARSON and Lillian E. Larson, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed April 8, 1986.

      Beverly Poling-Kalis, Pittsburgh, for appellant.
    Robert O. Lampl, Pittsburgh, for appellees.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Appellant, Pittsburgh National Bank, files this appeal from an Order of the lower court which granted the Appellees’ petition to open a judgment taken by confession. The judgment was based upon a loan guarantee and was entered after a failure in payments on the loan. After careful review, we are constrained to conclude that the lower court erred in opening the judgment in this case, and we must therefore reverse.

The facts of record may be gleaned from the pleadings and from deposition testimony submitted to the lower court. It shows that the Appellee husband, John R. Larson, set up a meeting at the Appellant Bank with Robert M. Sadler, a Bank official with whom Larson had dealt on several prior loan transactions. The purpose of the meeting was to secure a loan for Robert McConnell, a business associate of Mr. Larson. At that meeting, a loan of $15,000 was arranged for Mr. McConnell. However, it was understood that the loan had to be guaranteed, and there is no question that Mr. Larson agreed to act as a guarantor and signed an appropriate guarantee agreement at the same meeting.

The issues raised in this case involve the facts surrounding the liability of Mrs. Larson with regard to the loan. It is not disputed that Mrs. Larson’s signature is on the same guarantee document that her husband signed. It is also clear that she did not sign the document at the Bank during the meeting, but either had it delivered to her by her husband for signature or received it in the mail from Mr. Sadler. It was agreed by all witnesses that Mr. Sadler never met with her with regard to the guarantee or made any oral or written statements or representations to her with regard to it. It should be noted that the guarantee document signed by both Mr. and Mrs. Larson has prominently printed on its face that it is a guarantee agreement with power to confess judgment, and also, it has information typed at the top to clearly indicate that it relates to a loan to Robert McConnell.

Mrs. Larson testified she did not recall the time or the circumstances of her signing of the guarantee agreement. She testified that she probably signed the document without reading it, and frequently signed business documents for her husband, based upon her trust in him, without any real examination or attempt to understand them.

There was a disagreement in the testimony as to the factual circumstances surrounding the loan. Mr. Sadler stated that he told Mr. Larson that he would authorize the unsecured loan to Mr. McConnell only upon a joint guarantee of Mr. and Mrs. Larson. Mr. Larson denied this and also denied that he had delivered the guarantee agreement to his wife, as asserted by Sadler. The Larsons claimed that the guarantee must have been sent to Mrs. Larson in the mail by Sadler after the meeting at the Bank, together with other documents, such as a right of recission notice, which she also signed.

After nonpayment by McDonnell on the loan, the Bank confessed judgment against the Appellees, based upon the guarantee agreement. The Appellees thereafter filed their petition to open, contending that the guarantee should not have been enforceable against Mrs. Larson.

In order to open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. West Chester Plaza Associates v. Chester Engineers, 319 Pa.Super. 196, 465 A.2d 1297 (1983); Pa.R.C.P. 2959. Equitable considerations are not relevant, unless they relate to a particular defense asserted by the judgment debtor. Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981). We also recognize that a petition to open a judgment is an appeal to the discretion of the trial court, and the exercise of that discretion is not to be reversed in the absence of a manifest abuse of discretion. Tony Palermo Construction v. Brown, 326 Pa.Super. 566, 474 A.2d 635 (1984). In the instant case, there is no question raised as to the conclusion of the lower court that the Appellees moved promptly to open the judgment. The only real question in this case is whether the lower court abused its discretion in finding that they carried their burden of establishing a meritorious defense.

The Larsons contended that the guarantee should not be enforceable against Mrs. Larson because her signature on the guarantee agreement was allegedly procured by fraud. The lower court’s opinion makes it clear that it ordered the judgment opened in this case because it determined that there was sufficient evidence of fraud by the Appellant in the procurement of Mrs. Larson’s signature to send the case to a jury.

It is clear that in order to submit an issue of fraud to a jury in our Commonwealth, a party must present clear, precise and convincing evidence of all of the elements of fraud. See Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). In that case, our Court said that the party asserting fraud must meet an exacting standard before the judge may allow the jury to consider the issue, and the standard is higher than a mere preponderance of the evidence. As set forth in Delahanty v. First Pennsylvania Bank, N.A., supra, one is required to prove the following in order to establish fraud:

(1) a misrepresentation;
(2) a fraudulent utterance thereof;
(3) an intention by the maker that the recipient will thereby be induced to act;
(4) justifiable reliance by the recipient upon the misrepresentation; and
(5) damage to the recipient as the proximate result.

Upon our careful review of the entire record, we must conclude that there has been no evidence established of any misrepresentation in the procurement of Mrs. Larson’s signature on the guarantee agreement to justify a finding by the lower court that there was sufficient evidence to submit the question of fraud to a jury in this case. An analysis of the evidence in a light most favorable to the Appellees leads only to the conclusion that Mrs. Larson signed the guarantee without reading it, which was apparently her usual practice in such matters. The failure to read a contract is certainly an unavailing defense and will not justify an avoidance of the contract. See Orner v. T. W. Phillips Gas & Oil Co., 401 Pa. 195, 199, 163 A.2d 880, 883 (1960). The Appellees’ own evidence was that Mrs. Larson did not discuss the loan guarantee with Mr. Sadler or any other representative of the Appellant. Moreover, there is no evidence to suggest concealment, duress, or any other basis upon which one might reasonably conclude that a case of fraud might be established. See the discussion of different circumstances in which fraud may be established in Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983).

The lower court determined that the guarantee agreement may have been mailed to Mrs. Larson by the Appellant, along with documents from other loan transactions, thereby causing confusion, and suggesting possible impropriety by the Bank. There is no testimony by any witness that such circumstances occurred. Rather, there was only speculation by the attorney for the Appellees, who suggested during a deposition that such events may have occurred. There was no basis for the court below to rely upon such guesses by counsel as a basis for opening a judgment, especially where it was the Appellees’ argument that fraud justified the opening. Further, there was no evidence to support the lower court’s action based upon its apparent determination that Mrs. Larson may not have understood the nature of the guarantee agreement. It is evident from her testimony that she understood the legal meaning and significance of a loan guarantee agreement. In any event, such a determination could lend no weight to the Appellees’ exacting burden of establishing the elements of their claimed meritorious defense of fraud.

Thus, it is evident that the record before the lower court did not contain evidence allowing the possible finding that fraud was clearly or convincingly established by the Appel-lees to justify opening the judgment as to Mrs. Larson. Therefore, we must conclude that the lower court clearly abused its discretion in this case.

The Order of the lower court is reversed, and the judgment for the Appellant is reinstated. Jurisdiction is not retained.

      . The Appellees argue on appeal that Mrs. Larson should be relieved of liability, and the judgment opened, based upon the defense of mistake. However, this ground for relief was not raised in the petition to open judgment filed by the Appellees in the lower court. Moreover, such a contention would be unavailing, as it is clear that if there was any mistake in this case, it was unilateral, on the part of Mrs. Larson, and therefore not a possible meritorious defense. See Rusiski v. Pribonic, 326 Pa.Super. 545, 474 A.2d 624 (1984) on the defense of mistake.


author: HOFFMAN, Judge:

text:
    507 A.2d 870
    CSS CORPORATION v. SHERIFF OF CHESTER COUNTY and Brandywine Savings and Loan Association. Appeal of BRANDYWINE SAVINGS AND LOAN ASSOCIATION. BRANDYWINE SAVINGS AND LOAN ASSOCIATION, Appellant, v. SHERIFF OF CHESTER COUNTY and CSS Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed April 14, 1986.

      Glenvar E. Harman, Downingtown, for appellant.
    Jerry L. Johnson, West Chester, for appellees.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the court below directing the Sheriff of Chester County to issue a deed to certain disputed property to appellee. Appellant contends that the lower court erred in finding that appellee, rather than appellant, holds the title to the property. We agree and, accordingly, reverse the order of the lower court and remand for further proceedings.

The facts of this case are not in issue. On August 21, 1979, appellant, the Brandywine Savings and Loan Association, entered into a purchase money mortgage agreement with Frederick T. Holl, Jr., on certain lots, including lots 18, 20, and 24, of a subdivision in the Township of Sadsbury in Chester County, Pennsylvania. The mortgage was recorded on August 30, 1979. On August 21, 1979, appellee, CSS Corporation, also granted Holl a mortgage on lots 18, 20, and 24. That mortgage was not recorded until September 5, 1979. Under the statute regulating priority of liens, appellee’s mortgage lien was subordinate to that of appellant. See 42 Pa.C.S.A. § 8141. On August 13, 1981, appellant granted Holl a construction mortgage on lot 24 and recorded it on August 26. At the same time, appellee agreed to subordinate its lien on lot 24 to that of the construction mortgage.

On April 27, 1983, appellant began foreclosure proceedings against Holl on both the purchase money and construction mortgages. Both actions were reduced to judgment, and appellant instituted execution proceedings through the Office of the Sheriff of Chester County. See Pa.R.Civ.P. 3180-83. On July 15, 1983, the properties subject to either judgment were offered for sale by the Sheriff. Lots 18, 20, and 24, the subjects of the purchase money mortgage, were offered as sale Number 28. Lot 24, the subject of the construction mortgage, was offered as sale Number 31. When Number 28 was announced, appellant “passed,” requesting that the sale be delayed until a later time. When Number 31 was called, appellant announced that the property for sale, lot 24, was subject to the prior lien of appellant’s purchase money mortgage on lots 18, 20, and 24. Both appellant and appellee bid upon the property, with appellant placing the higher bid. After sale Number 31 was concluded, sale Number 28 was reannounced, and appellee successfully bid on that sale.

Each party then filed an action in equity seeking to enjoin the Sheriff from delivering a deed to lot 24 to the other. The lower court granted a stay prohibiting the Sheriff from issuing such a deed pending disposition of the proceedings below. On June 22, 1984, the lower court filed an opinion and order, finding that appellee was the “rightful legal owner” of the property and directing the Sheriff to execute and deliver a deed accordingly. Appellant filed exceptions to that order which were dismissed on March 22, 1985. This appeal followed.

Appellant contends that the lower court erred in finding that appellee holds the title to lot 24. We agree. A sheriffs sale is made without warranty; the purchaser takes all the risk, and the rule of caveat emptor applies in all its force. See Taylor v. Bailey, 323 Pa. 278, 284, 185 A. 699, 702 (1936); Smith v. Painter, 5 Serg. & Rawle 223, 224 (1819). The purchaser at such a sale receives all the right, title, and interest in the property that the judgment debtor held, see Bangor Park Association Case, 370 Pa. 442, 446, 88 A.2d 769, 772 (1952); Taylor v. Bailey, supra at 284, 185 A. at 702; 13 Standard Pa. Practice 2d § 73:45 (1983); 22 id. § 121:102 (1984), and the rights of the purchaser become fixed when the property is knocked down to the highest bidder. See Bradley v. Price, 17 D. & C.2d 368, 372 (1952), aff'd, 396 Pa. 234, 152 A.2d 904 (1959); 22 Standard Pa. Practice 2d § 121:103. If the debtor had no rights in the property at the time of the sheriffs sale, however, no title passes to the purchaser. See Bangor Park Association Case, supra, 370 Pa. at 446, 88 A.2d at 772; DiCarlo v. Licini, 156 Pa.Superior Ct. 363, 367, 40 A.2d 127, 129-30 (1944).

In the instant case, appellant purchased all of Holl’s legal interest in lot 24 when it successfully bid upon sale Number 31. Thus, appellant received title to lot 24 subject to the prior lien of the purchase money mortgage. When sale Number 28 was called at the conclusion of Number 31, Holl’s rights in lot 24 had passed to appellant, and he no longer held any title to that property. Therefore, although appellee successfully bid upon the lots offered for sale at Number 28, it could not receive title to lot 24. Accordingly, we reverse the order of the court below and remand for further proceedings.

Order reversed; case remanded for proceedings consistent with this opinion; jurisdiction is not retained.

      . On September 2, 1983, the parties’ counsel entered into stipulations as to the facts. These stipulations were then supplemented by the lower court from its reading of the record. See Lower Court Opinion at 4 n. 3.

      . 42 Pa.C.S.A. § 8141 provides, in pertinent part, as follows:
      Liens against real property shall have priority over each other on the following basis:
      (1) Purchase money mortgages, from the time they are delivered to the mortgagee, if they are recorded within ten days after their date; otherwise from the time they are left for record____
      (2) Other mortgages and defeasible deeds in the nature of mortgages, from the time they are left for record.

      . "Passing” is a permissible practice at sales by the Office of the Sheriff of Chester County. See Lower Court Opinion at 7; Stipulation of Counsel filed September 2, 1983 at 4.

      . A judicial sale does not affect the lien of a prior mortgage on the property. See 42 Pa.C.S.A. § 8152(a).

      . The parties agreed that the Sheriff could issue a deed to appellee conveying title to lots 18 and 20. See Lower Court Order filed March 20, 1985.

      . Property is said to be “knocked down” when the
      auctioneer, by the fall of the hammer, or by any other audible or visible announcement, signifies to the bidder that he is entitled to the property on paying the amount of his bid, according to the terms of the sale.
      Black’s Law Dictionary 784 (5th ed. 1979).


author: LIPEZ, Judge:

text:
    507 A.2d 872
    COMMONWEALTH of Pennsylvania v. John BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1986.
    Filed April 14, 1986.

      Cynthia C. Martelli, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and LIPEZ, JJ.
   LIPEZ, Judge:

In a non-jury trial, defendant was convicted of burglary, conspiracy, and criminal trespass. The trial court denied defendant’s post-verdict motions and imposed a sentence of two to ten years imprisonment for burglary (defendant received a suspended sentence on the conspiracy charge). Defendant failed either to petition the court to reconsider his sentence or to take a direct appeal. He subsequently filed a pro se petition under the Post Conviction Hearing Act (PCHA), which was later amended by new counsel and denied by the PCHA court after a hearing. In this appeal defendant claims that (1) his trial counsel was ineffective for failing to file an appeal raising the issues of (a) the adequacy of the trial court’s statement of reasons at sentencing and (b) the sufficiency of the evidence; and (2) the PCHA court erred in reversing its initial order granting judicially fashioned use immunity to Manfred Turner, a potential defense witness. We affirm.

In Commonwealth v. Sweitzer, 261 Pa.Super. 183, 191, 395 A.2d 1376, 1380-81 (1978), this court explained that

... a PCHA petitioner has the burden of establishing his grounds for postconviction relief____ In particular, the burden of establishing ineffectiveness of trial counsel is on appellant____ The PCHA court has discretion to disbelieve testimony; thus, self-serving or uncorroborated statements on petitioner’s behalf do not shift and do not necessarily sustain petitioner’s burden of proof, even when the Commonwealth presents no rebuttal evidence.

At the PCHA hearing, defendant asserted that he asked trial counsel (orally and by letter) to file an appeal on his behalf, and counsel agreed to do so. Defendant’s trial counsel testified that while she had no specific recollection of the case (which was tried five years earlier), it was her normal practice to ask the client whether he wanted her to file an appeal and, if he did, to write a memorandum and refer the case to the appellate division of her office. Counsel further testified that her review of defendant’s file revealed neither a memorandum nor a letter from defendant asking her to file an appeal.

The PCHA court found defendant’s assertions to be “totally unworthy of belief.” Based on this finding and trial counsel’s testimony, the court concluded that defendant knowingly, intelligently and voluntarily waived his appellate rights. “In reviewing the PCHA court’s determination, our task is not to engage in de novo evaluation of testimony.” Commonwealth v. Lutz, 492 Pa. 500, 506, 424 A.2d 1302, 1305 (1981). Accordingly, we will not disturb the PCHA court’s determination that defendant voluntarily waived his right to appeal.

Even if we were to find that counsel was ineffective for failing to file an appeal, the issues which defendant claims should have been raised are meritless. Defendant alleges that the trial court’s statement of reasons for sentence was inadequate. We disagree. After the prosecutor read from the pre-sentence report that defendant’s prior criminal record included sixteen arrests, thirteen convictions, and twelve parole violations, the court stated that it considered defendant’s “long, long history” of criminal activity, and noted that defendant has “been given time after time opportunity and there has to be an end.” The record also discloses that the court considered the nature of the present offense (burglary), stating that it was not a particularly violent crime, though the court noted that there was “some violence” in defendant’s background. The court further stated that it considered the probation officer’s statement with regard to defendant’s “cooperative” behavior. This statement of reasons clearly demonstrates that the court considered factors specified in the sentencing code. “[T]he statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code, it must only demonstrate that the court has considered the factors specified in the code.” Commonwealth v. Kane, 315 Pa.Super. 212, 221, 461 A.2d 1246, 1251 (1983), reh’g denied (1983), petition for allowance of appeal denied (1984). Since this issue is meritless, counsel could not be held ineffective for failing to appeal it. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Defendant also claims that counsel was ineffective for failing to appeal the issue of the sufficiency of the evidence. However, since this issue was not raised in defendant’s amended PCHA petition nor in the supplement to the amended PCHA petition, it has been waived. Commonwealth v. Hankins, 261 Pa.Super. 264, 396 A.2d 389 (1978).

Defendant’s final claim is that the PCHA court erred in reversing its earlier grant of judicially fashioned use immunity to Manfred Turner, a potential defense witness. During the PCHA hearing, the court granted defendant’s request for a continuance in order to prepare a petition to compel judicially fashioned immunity. In his petition, defendant alleged the following: that Mr. Turner was available to testify, but would exercise his right against self-incrimination unless granted use immunity; that if granted immunity, Turner would testify “that there was no burglary, that he went to the alleged victim’s house solely for the purpose of a drug transaction between himself and the victim, that the petitioner [defendant] waited outside, and that when a disagreement in connection with the transaction arose, the victim pulled a knife on Mr. Turner, as a result of which, he, and then the petitioner fled;” that this testimony was essential to defendant’s case in that it was the only way to prove that trial counsel was ineffective for failing to call Mr. Turner as a witness; and finally, that there was no strong governmental interest countervailing a grant of immunity. The PCHA court subsequently granted use immunity to Mr. Turner, but prior to receiving his testimony reversed its decision due to our Supreme Court’s ruling in Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985). Defendant contends that the court’s reasoning in Johnson did not compel a reversal of the grant of immunity and, alternatively, that the PCHA court erred generally in applying Johnson retrospectively, and erred specifically in reversing its initial order in violation of the thirty-day rule of 42 Pa.C.S. § 5505.

In Johnson, the Supreme Court, while affirming the result of a decision by a panel of this court, overruled the court’s holding that lower courts had an “inherent power” to grant use immunity to a defense witness without the prosecutor’s consent. The panel court’s recognition of this inherent power to grant use immunity to witnesses was based on its reading of the Third Circuit Court of Appeals’ decision in Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980). Former President Judge Spaeth, who authored the panel decision, explained that not only was the reasoning of Smith persuasive, but “we are probably bound by it.” The Supreme Court, in Johnson, disagreed, holding that it was for the legislature to decide whether use immunity for a witness’ testimony is an available tool, and that the legislature placed that tool in the hands of prosecutors, not courts. The court analyzed the immunity act, 42 Pa. C.S. § 5947, and determined that “[u]nder the statute, courts have no power to grant immunity except on request of the prosecutor.” Commonwealth v. Johnson, supra, 507 Pa. at 32, 487 A.2d at 1322. The court rejected the argument that it was bound by the reasoning and decision of Smith, explaining that Smith’s application was limited to the “unusual facts of that case.” Commonwealth v. Johnson, supra, 507 Pa. at 36, 487 A.2d at 1324. Indeed, one of the “crucial” facts of Smith, according to the Supreme Court, was that the prosecutor who had jurisdiction over the witness was willing to grant immunity. In Johnson and in our case, the prosecutors were unwilling to grant immunity to the witness. Our reading of Johnson indicates, contrary to defendant’s assertion, that our Supreme Court has not recognized any inherent power of courts to grant use immunity to witnesses without the consent of the prosecutor.

Johnson was decided after the PCHA court’s initial grant of immunity to Turner, but prior to his giving any testimony. Upon learning of the Johnson ruling, the PCHA court reversed the initial order and refused to grant immunity to Turner. Since Turner had yet to avail himself of the initial grant of immunity, we think it was reasonable and proper for the PCHA court to reverse its original order to comply with the recent ruling of the Supreme Court.

Finally, we reject defendant’s claim that the PCHA court was barred from modifying or rescinding the initial immunity order beyond the thirty-day period established in 42 Pa.C.S. § 5505. We believe that the order in question was clearly interlocutory as it did not finally dispose of the PCHA petition and did not have any aspect of finality. We are further of the opinion that the thirty-day limitation of section 5505 applies only to final orders. Section 5505 substantially reenacts 12 P.S. § 1032, which our Supreme Court held applicable only to final orders. Commonwealth v. Bowden, 456 Pa. 278, 282 n. 3, 309 A.2d 714, 717 n. 3 (1972). See also Commonwealth v. Parker, 305 Pa.Super. 516, 525-528, 451 A.2d 767, 771-773 (1982) (Lipez, J., concurring). Therefore, the PCHA court was not legally barred from reconsidering and rescinding its initial order after thirty days from the time of its entry.

Order affirmed.

      . Commonwealth v. Johnson, 323 Pa.Super. 33, 470 A.2d 115 (1983).

      . Chief Justice Nix recognized this when he wrote a separate concurring opinion to voice his disagreement with the majority on this point: "I cannot agree with the majority’s conclusion that under no circumstances does a court have the power to grant such immunity.” Commonwealth v. Johnson, supra, 507 Pa. at 38, 487 A.2d at 1326 (NIX C.J., concurring).

      . This statute provides: "Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.”

      . The Post Conviction Hearing Act states that the order "finally disposing" of the PCHA petition “constitutes a final judgment for purposes of review.” 42 Pa.C.S. § 9550(b). The Rules of Appellate Procedure allow for interlocutory appeals as of right in "certain situations where the order has a final aspect.” Pa.R.A.P. 311 and note that follows.


author: WICKERSHAM, Judge:

text:
    507 A.2d 1223
    Norton K. BROWN, Appellant, v. C. Adrienne BROWN a/k/a C. Adrienne Pie Brown.
    Superior Court of Pennsylvania.
    Argued April 17, 1985.
    Filed Feb. 27, 1986.
    Reargument Denied May 8, 1986.

      John Orourke, Jr., Norristown, for appellant.
    Jack A. Rounick, Norristown, for appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.

      . In the instant case, delivery and acceptance of the real estate in question were clearly effected by means of a validly executed deed. (Record at 69a-71a). See Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976). Mrs. Brown claims, however, that the crucial element of donative intent is missing because she changed her exclusive interest in the property into a tenancy by the entireties to be shared with the appellant solely to avoid inheritance taxes. (Record at 60a). Nonetheless, a tax planning motive for making a gift does not negate donative intent. As the Pennsylvania Supreme Court has stated: "[the] purpose [of a] transfer ... at the least cost in inheritance taxes ... is not inconsistent with a donative intent, but rather positively suggests such an intent.” Clay v. Keiser, 460 Pa. 620, 626-27 n. 3, 334 A.2d 263, 266 n. 3 (1975); See also Brown v. Brown, 330 Pa.Super. 324, 332 n. 2, 479 A.2d 573, 566 n. 2 (1984).
      Moreover, the record indicates that both parties understood that the consequence of the transfer would be a completed gift of an interest in the real estate to the appellant, and that this outcome reflected their wishes. As the attorney who prepared the deed testified:
      Q. Didn't you think there was an adverse interest when somebody is going to deed a property and deeding all their property and getting nothing in return?

        A. Not an adverse interest. I explained there was going to be a gift at that time; and that once it was put in joint names, it couldn’t be brought back without the consent of both parties.
      Q. ... You took the one asset the parties owned, either of the parties owned, transferred it to the joint names and did a will leaving it.
      A. I did not recommend one way or the other. I explained both and they both indicated to me that that’s what they wanted to do. I did not twist Adrienne’s arm and I did not have any predirection from Bud asking me to do that. We discussed it when they were there.
      (Record at 58a) (emphasis added) We find that the gift was for joint use. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985).

   WICKERSHAM, Judge:

This appeal presents an issue of first impression in the appellate courts of this Commonwealth: whether property held individually by one spouse prior to marriage and transferred during marriage to a tenancy by the entireties becomes marital property for purposes of equitable distribution.

The parties to this appeal were married on September 16, 1972 and separated in October, 1977. Appellee-wife filed a complaint in divorce, in response to which appellant-husband also filed a complaint in divorce. By stipulation, the actions were consolidated, with husband proceeding as plaintiff. By Decree dated July 12, 1982 the parties were granted a divorce with the court reserving equitable distribution questions. A Special Master was appointed to take testimony and to make recommendations to the court below with regard to counsel fees, costs, and equitable distribution. Three hearings were held following which the Master filed his report. Exceptions were filed and, after argument, the court below entered an order dividing the principal asset consisting of a ten acre tract with two homes thereon as follows:

A. Until a sale and settlement of said property, Husband shall have the right to exclusive possession of same. Husband is required to pay the mortgage, insurance and other expenses and bring current the delinquent real estate taxes.
B. The said property shall be placed for sale at a price to be agreed upon by the parties within 45 days from the date of this Order. In the event the parties are unable to agree upon an offering price, the property shall be placed for sale at $158,000.00. Either party or a third party may purchase the property at the price agreeable to the parties, and if not so disposed of within 120 days, shall be thereafter sold at auction to the highest bidder.
C. The net proceeds from the sale shall be distributed as follows:
1. $75,000.00 to Wife
2. Remainder to be divided 50% to Wife and 50% to Husband

Order dated August 10, 1984 at 4.

From this order, husband appeals.

At the time of the parties’ marriage, the wife owned the above tract of real estate which she had acquired in a previous divorce settlement. The deed was titled in her name only and the value of the real estate, as determined below, was $75,000.00 at the date of marriage. After the marriage, the wife transferred title to the real estate to herself and husband for valuable consideration, by a deed which was duly recorded.

The Special Master found that appellee had made a gift of the property to the marital estate and that the entire value of the residence was subject to equitable distribution. The court held contra, ruling that the transfer of title into joint names did not constitute a gift to the marital estate and, therefore, appellant was entitled to share only in the property’s increase in value during the marriage. We agree with the Special Master, and accordingly, Reverse and Remand.

Generally, an abuse of discretion standard of review applies in cases concerning property distribution under the Divorce Code, 23 P.S. §§ 101-801. Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1984) (allocatur denied); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent an abuse of discretion. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). In reviewing property distribution cases, we must keep in mind that the master and the trial court were free to accept or reject the parties’ testimony. Madden v. Madden, supra; Gee v. Gee, supra. At the same time, however, we have a responsibility to make a complete and independent review of the record. Rorabaugh v. Rorabaugh, 302 Pa.Super. 1, 448 A.2d 64 (1982); Rollman v. Rollman, 280 Pa.Super. 344, 421 A.2d 755 (1980).

The Divorce Code of 1980, 23 P.S. § 401(d) allows the court to equitably divide or distribute marital property. 23 P.S. § 401(e) and (f) define and discuss the bounds of marital property:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
4c * * sfs * *
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
4c 4< 4< 4c 4c 4c
(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401(e), (f). In applying the above provisions to the facts of the case at hand, we must keep in mind that the legislature has declared it to be the policy of the Commonwealth to: “Effectuate economic justice between parties who are divorced or separated ... and insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6).

We are initially guided by the plain language of 23 P.S. § 401(f) which states that only property acquired during the marriage is deemed marital property. A fortiori, property acquired prior to the marriage is not marital property. In Madden v. Madden, supra, we found that property acquired during the marriage and placed in joint names, was a gift to the marital unit (and the creation of an estate by the entireties is presumed).

Instantly, appellee acquired the property in dispute prior to the marriage. If nothing further occurred, we would find the language of 23 P.S. § 401(e) controlling, and hence, appellant would be entitled to share only in the enhanced value of the property. 23 P.S. § 401(e)(3). During the marriage, however, appellee transferred her individually held interest in property to a tenancy by the entireties by a deed. Appellant contends that the conveyance of the real estate to a tenancy by the entireties, during the marriage, constituted a valid gift to the marital estate. We agree.

“Where property or an account is placed in the names of a husband and wife, a gift, and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of [one spouse]. . .” In re Holmes Estate, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964). The presumption of an estate by the entireties, and that a valid gift ensued therefrom, may be overcome by clear and convincing evidence to the contrary. Id. See also 23 P.S. § 401(f). Upon a careful review of the record, we find no clear and convincing evidence offered to overcome the presumption of a valid gift to the marital unit. We hold, therefore, that a gift was made to the marital unit when appellee conveyed her real estate to herself and her husband during the marriage.

“It is the function of this court to determine whether a property right has been acquired during marriage and whether equity warrants its inclusion in the marital estate.” Flynn v. Flynn, 341 Pa.Super. 76, 82, 491 A.2d 156, 159 (1985). Having found the property herein a gift to the marital estate, the property is includable and is subject to equitable distribution.

We reverse and remand to the lower court with instructions to modify the decree of equitable distribution and otherwise revise its calculations in accord with this opinion.

The order is reversed. We remand for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellant states the questions involved as follows:
      1) Should the value of the real property at the time of marriage be set aside to the wife as separate, non-marital property?
      2) Does the Superior Court’s holding in Estep v. Estep preclude a finding of a gift to the marital estate when property is transferred by deed to husband and wife as tenants by the entireties?
      3) Does a divorced spouse, holding property as a tenant in common, have a right to partition the property?

        4) Do the present circumstances warrant a variance from a 50/50 division of the marital property?
      5) Should the wife be entitled to the first $75,000.00 from the sale of property when both husband and wife stipulated that the fair market value of the property at the time of the marriage was $75,000.00 and the records clearly show that there was a prior mortgage on the property which has continued from before the marriage up until the present time?
      Brief for Appellant at 5.

      . We note that:
      the court’s power to direct a partition of property is qualified by its duty to divide marital property in an equitable way. If the property is not marital property, the court may direct its partition. But if it is marital property, the court must instead, upon request of either party, direct its equitable division.

        Platek v. Platek, 309 Pa.Super. 16, 24, 454 A.2d 1059, 1062-63 (1982). Prior to the enactment of the Divorce Code, determination of joint property rights was limited to an action in partition, see Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). With the adoption of the Code, a husband and wife are entitled to an equitable distribution of the property of the marital unit.

      . In light of our Remand, we do not find it necessary to address the other issues raised by appellant.


text:
    507 A.2d 1226
    NATIONAL RECOVERY SYSTEMS, Appellant v. Warren BRYER.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed March 24, 1986.
    Reargument Denied May 2, 1986.

      Melvin Rubin, Ardmore, for appellant.
    Jerome Gamburg, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   WICKERSHAM, Judge:

National Recovery Systems (NRS) appeals from the order of the court below in which its claim, as assignee, for money lent to appellee Warren Bryer by a Nevada casino was found to be unenforceable.

The pertinent facts are as follows: In July, 1975 appellee applied for credit from the Frontier Hotel, Las Vegas in order to make a “gambling junket” to that casino at a later date. A credit line of $5,000.00 was duly extended to appellee. Appellant subsequently travelled to Nevada in November 1977, and as a guest at the Frontier Hotel, used his $5,000.00 line of credit for gambling there. Upon appel-lee’s refusal to repay the “loan” made by the casino, appellant sought recovery of the debt.

Following a non-jury trial, the lower court made findings of fact, conclusions of law, and entered a verdict for appellant in the amount of $5,000.00. Appellee filed exceptions to the court’s findings of facts, which were sustained and the previous verdict was reversed, with judgment entered for appellee on March 11, 1985.

The instant appeal followed, in which appellant raises two issues for our review. One of these issues is whether Nevada law applies under the Pennsylvania conflict of law rules. This “issue” being previously resolved correctly by the trial court in the affirmative, we do not find it deserving of our further attention.

We turn to appellant’s remaining issue, regarding the recoverability of the “loan” as money not lent solely for gambling purposes. We begin by noting that “[although the state of Nevada has legalized gambling, the Nevada Supreme Court has consistently held that debts incurred, and checks drawn for gambling purposes, are unenforceable.” National Recovery Systems v. Ornstein, 541 F.Supp. 1131, 1133 (E.D.Pa.1982). While the burden of proving a gambling purpose is on the party seeking to avoid liability, there is a presumption of gambling purpose where the transaction occurs in proximity to the gambling itself in terms of both time and space. Flamingo Resort, Inc. v. United States, 485 F.Supp. 926, 931 (D.Nev.1980), aff'd, 664 F.2d 1387 (9th Cir.1982). The test to be used in determining whether this presumption arises was set out by the Supreme Court of Nevada in Craig v. Harrah, 66 Nev. 1, 201 P.2d 1081 (1949) as follows:

In determining the purpose [behind the indebtedness], the significance and relevancy of the surrounding circumstances and environment are readily apparent. If the advancement was made in a gambling establishment in full operation, by the proprietor or his agent, to one then, or immediately prior thereto, engaged in gambling and who ran short of money, the game still being in progress, or if his conversation or the circumstances indicated he intended to resume playing, the purpose of the advancement become clear. On the other hand, if the advancement was at a different place than a gambling establishment, or if same was not made at a time when the recipient had been recently playing, and some other, legitimate, purpose is stated by the recipient, then no presumption or inference that the advancement was for a gambling purpose is justifiable from such circumstances.

Id. at 6, 201 P.2d at 1084.

This test was recently applied by the Eastern District Court of Pennsylvania in National Recovery Systems v. Ornstein, supra, where the facts were strikingly similar to those of the instant case. In National Recovery Systems v. Ornstein, the defendant, like appellant herein, obtained credit lines from Las Vegas casinos in anticipation of planned gambling junkets. Id. at 1132. Travelling to Nevada, he later drew upon those lines of credit, using the money for gambling in the casinos which had advanced him credit. Id. Advances were made in the form of chips, in proximity to gambling activities, and in exchange for all sums received, the defendant executed counter-checks or markers in the amount of the advance. Id. When he failed to repay the money thus borrowed, claims were assigned to National Recovery Systems for collection. Id. at 1132. The court found that based on these circumstances, the loans had been made for gambling purposes under the Craig v. Harrah test. Id. at 1134.

Applying that test to the instant case, it is obvious that here too, advancements were made for gambling purposes and are thus unenforceable under the law. As the lower court ultimately concluded, evidence adduced at trial amply supported this proposition. See lower ct. op., May, 1985 at 5. The testimony showed that appellee drew on his previously established line of credit, while in the process of gambling and used all but a couple of hundred dollars in actual gambling. N.T., 58-60. Moreover, appellee was never more than a few yards away from gambling activities when he drew on his credit line by signing markers at the cashier’s cage and even at the gambling table. N.T. 58. These facts indicate that the “loans” made by the casino were sufficiently proximate in time and place to appellee’s gambling as to be presumed for “gambling purposes” under the Craig v. Harrah test. The trial court thus correctly found appellant’s claim was unenforceable.

Accordingly, the order of the lower court is affirmed.

      . Appellant, NRS, was assigned a claim for $5,000 against appellee by The Frontier Hotel, Las Vegas, Nevada. Appellant acts as a consultant to gambling casinos, including the Frontier Hotel, in which capacity it, among other things, sets up procedures for gaming, casino credit and debt collection.

      . A "gambling junket” is the common expression for travelling to casinos with a group of people for the purpose of gambling, according to the testimony.

      . Appellant states the relevant issues to be as follows:
      I. When a loan is made on the basis of a credit application submitted long in advance, no restrictions are placed on the use of the proceeds; and cash is given to the borrower at a place other than the gambling tables, does the fact that the borrower used part of the proceeds, over a period of three days, to gamble, render the debt unenforceable in Nevada?
      II. Is Nevada law applicable under the Pennsylvania conflict of laws rules?
      Brief for Appellant at 3.


author: MONTEMURO, Judge:

text:
    507 A.2d 1228
    Alvin JOHNSON, Appellee, v. EARL SCHEIB, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1986.
    Filed March 26, 1986.
    Reargument Denied May 1, 1986.

      Jay Meyers, Philadelphia, for appellant.
    Robert H. Nemeroff, Philadelphia, for appellee.
    Before ROWLEY, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

On June 1, 1984, appellee, Alvin Johnson, filed a statement of claim in Philadelphia Municipal Court for $1000.00 in damages to appellee’s automobile allegedly occasioned by appellant’s, Earl Scheib, Inc.’s, breach of contract. As a result of appellant’s failure to attend the July 5, 1984 hearing on appellee’s claim, judgment wás entered against appellant by default.

Thereafter, appellant filed a petition to open the default judgment in Municipal Court contending that appellant’s previous failure to appear was due to internal corporate “confusion” and to the failure of the “legal papers” to be forwarded to the “home office”. Appellant’s petition was denied and appellant subsequently appealed this denial to the Court of Common Pleas of Philadelphia County.

On October 9, 1984, the Honorable Thomas A. White also denied the petition to open the default judgment. In response to appellant’s motion for reconsideration of the October 9, 1984 order, Judge White again denied appellant’s petition to open in an order dated December 18, 1984. In his opinion, filed along with his December 18, 1984 order, Judge White noted that “service of the Complaint and notice of the [July 5, 1984] hearing were properly served on the Petitioner.” Judge White was clearly unmoved by the alleged subsequent mishandling of the legal papers.

Having been thwarted in its attempts to have the default judgment opened, appellant returned to Municipal Court and filed a petition to strike the default judgment due to the claimed excessiveness of the $1000.00 award. Following a hearing, this petition was similarly denied on February 8, 1985. On March 1, 1985, appellant again appealed to the Court of Common Pleas.

Misapprehending' the March 1, 1985 appeal to be an appeal from his earlier denial of appellant’s petition to open the default judgment, Judge White ruled, in an order dated April 30, 1985, “It appearing that defendant has improperly filed an appeal of our Order with this Court, it is hereby Ordered that said appeal is dismissed.” Appellant timely appealed this order.

Given the nature of the underlying action, this case has become unnecessarily arduous. Appellant has steered this case through a serpentine procedural course. Appellant’s persistence, combined with the regrettable, albeit understandable, misapprehension by the court below, has now placed this matter in our judicial lap. In the interest of “judicial economy”, we have opted to disregard the numerous procedural irregularities, see Pa. R.A.P. 105(a) and Pa. R.C.P. 126, and we will address this case on its substantive merits as an appeal from the April 30, 1985 dismissal of appellant’s attempt to have the default judgment stricken.

As this court has previously observed:

It is often repeated in Pennsylvania cases that a petition to strike a judgment is a common law proceeding and operates as a demurrer to the record and that a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining the judgment will not be stricken and matters dehors the record will not be considered.

Township of Middletown v. Fried & Gerber, Inc., 308 Pa.Super. 161, 164, 454 A.2d 71, 72 (1982). Appellant urges only the alleged “excessiveness” of the amount of the judgment as a “fatal defect”. This claim however is in the nature of a defense which does not address itself to the face of the record before us. The amount of appellee’s award was exactly the amount of damages claimed in his June 1, 1984 statement of claim, upon which appellant defaulted. Therefore, the alleged “excessiveness” of the judgment is irrelevant to, and unsupportive of, the instant petition to strike.

Mindful that we may affirm the correct disposition by the court below on an alternate legal ground or theory from that adopted below, see Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972), we accordingly affirm the April 30, 1985 order.

Order affirmed.

      . See Philadelphia Court Rule (Civil) 315.

      . In a brief opinion, dated August 14, 1985, Judge White directed that appellant’s appeal should be filed with this court and not with the Court of Common Pleas.


text:
    507 A.2d 1230
    Charles GUTIERREZ and Lorraine Gutierrez, His Wife v. PENNSYLVANIA GAS & WATER COMPANY, Kaminski Brothers, Inc., Syrstone, Inc., and Antonio Constantino, t/a Midway Garden Center v. The CITY OF WILKES-BARRE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed April 16, 1986.

      Ralph J. Johnston, Jr., Wilkes-Barre, for appellant.
    Rona Totolu, Wilkes-Barre, for Kaminski, appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   WICKERSHAM, Judge:

The City of Wilkes-Barre appeals from the order of the Court of Common Pleas of Luzerne County denying the City’s request for leave to amend its answer.

On March 22, 1983, Charles and Lorraine Gutierrez commenced the instant trespass action against four defendants: Pennsylvania Gas & Water Company; Kaminski Brothers, Inc.; Syrstone, Inc.; and Antonio Constantino, t/a Midway Garden Center. The Gutierrez complaint, filed on April 28, 1983, alleged negligence on the part of the defendants resulting in injuries to Mr. Gutierrez when, on October 30, 1981, he fell over a water shut-off valve exposed during a reconstruction project along North Main Street in Wilkes-Barre. Various pleadings not relevant here followed.

On June 17, 1983, Kaminski Brothers, Inc., appellee herein, filed a praecipe and writ joining the City of Wilkes-Barre, appellant herein, as an additional defendant. In its complaint against appellant, filed on September 30, 1983, appellee alleged that prior to the accident date, it had been instructed by appellant to cease all work in the area and had in fact done so, leaving the areas under appellant’s exclusive possession and control. On July 5, 1984, appellant filed an answer and new matter to appellee’s complaint. Appellant essentially denied that the area was in appellant’s exclusive control and that it had ordered appellee to cease all work in the area. In its new matter, appellant sought indemnification from appellee in the event it should be found liable under the original complaint. Appellee replied to the new matter on July 23, 1984, thus ending the pleadings relevant to this appeal.

On February 15, 1985, appellant filed a petition for leave to file an amended answer and new matter to appellee’s complaint. Specifically, appellant sought to raise a notice defense under 42 Pa.C.S. § 5522(a) and a governmental immunity defense under 42 Pa.C.S. § 8541, et seq. On May 2, 1985, the lower court denied appellant’s petition for leave to amend. Appellant filed this timely appeal, in which it raises, the following two issues:

I. Whether The City of Wilkes-Barre, Additional Defendant below, should be granted leave to file an Amended Answer and New Matter.
II. Whether Plaintiffs have waived any objection to the Petition for Leave to Amend of The City of Wilkes-Barre.

Brief for Appellant at 3. Because of our resolution of the first issue, we need not address the second issue.

Pa.R.C.P. No. 1033 provides:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. No. 126 provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

With these two rules serving as our focal point, we have examined the relevant caselaw. It is well-settled that the decision to grant or deny permission to amend a pleading is a matter of judicial discretion. Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967); Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983). However, this discretion is not unfettered. “Our courts have established as parameter a policy that amendments to pleadings will be liberally allowed to secure a determination of cases on their merits.” Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa. Super. 311, 313, 484 A.2d 148, 150 (1984). Amendments should be allowed with great liberality at any stage of the case unless they violate the law or prejudice the rights of the opposing party. Brooks v. McMenamin, 349 Pa.Super. 436, 503 A.2d 446 (1986); First Pennsylvania Bank, N.A. v. DiDomenico, 337 Pa.Super. 191, 486 A.2d 971 (1984); Tanner v. Allstate Insurance Co., supra.

We have examined the record and find that neither an error of law nor the kind of prejudice to which the caselaw refers, would occur if amendment was to be permitted in this case. Although the time of the amendment is a factor to be considered, see Tanner, supra, it appears that it is to be considered only insofar as it presents a question of prejudice to the opposing party. Brooks v. McMenamin, supra.

As our court explained recently:

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed[.]

Gallo v. Yahama Motor Corp., supra 335 Pa.Super. at 314, 484 A.2d at 150, quoting Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (emphasis in original; footnote omitted).

The trial court found that amendment of appellant’s answer would cause undue delay of the proceedings and impose additional inconvenience and expense on the parties. We have held recently that a trial court’s denial of a petition to amend, based on nothing more than unreasonable delay, is an abuse of discretion. Brooks v. McMenamin, supra. In any event, we find no evidence that allowing the amendment of appellant’s answer would cause undue delay. Both defenses appellant seeks to assert could be addressed at trial. Moreover, the trial, which was scheduled for the end of June 1985, over four months after appellant’s petition to amend, was continued on petition of appellee. Thus, this was not a situation where the request to amend was made on the eve of trial. While it is likely that most amendments to pleadings cause additional inconvenience and expense for the parties, we are not convinced that this amendment would cause such undue delay as to prejudice appellee under the above standard. “[Prejudice must be something more than a detriment to the other party, for to make an advantage operate as a bar to amendment would be ‘to destroy the right to amend except in cases when the moving party would have no reason to amend.’ ” Tanner v. Allstate Insurance Co., supra 321 Pa.Super. at 138, 467 A.2d at 1164 (quotation omitted); Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981) (quotation omitted).

In the absence of a proper and compelling ground for refusing the amendment, the lower court should grant leave to amend. Gedekoh v. Peoples Natural Gas Co., 183 Pa.Super. 511, 133 A.2d 283 (1957). Its refusal to do so under such circumstances is an abuse of discretion which is reversible on appeal. Pellegrine v. Home Insurance Co., 200 Pa.Super. 48, 186 A.2d 662 (1962). Considering the foregoing, and consonant with the policy favoring liberal allowance of amendment, we conclude that the lower court erred in denying appellant’s petition to amend.

Order vacated and case remanded with leave for appellant to amend its answer consistent with this opinion. Jurisdiction is relinquished.

      . We have considered whether this appeal is properly before our court. 42 Pa.C.S. § 762 states in relevant part:
      § 762. Appeals from courts of common pleas
      (a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
      (7) Immunity waiver matters. — Matters conducted pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).
      Under this section, this case could have properly been appealed to the Commonwealth Court or could be transferred thereto by our court. See 42 Pa.C.S. 705; Township of Elder v. County of Monroe, 330 Pa.Super. 74, 478 A.2d 1357 (1984).

        We note, however, that neither party has objected to the appeal before this court. We are therefore invested with jurisdiction to decide the matter by virtue of 42 Pa.C.S. § 704(a), which states:
      § 704. Waiver of objections to jurisdiction
      (a) General rule. — The failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court.

        See Rosenberg v. Holy Redeemer Hospital, 351 Pa.Super. 399, 506 A.2d 408 (1986).