author: HOFFMAN, Judge:

text:
    497 A.2d 637
    CONCORDE INVESTMENTS, INC. c/o Faust and Rabbach v. Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants. Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants, v. CONCORDE INVESTMENTS, INC. and David Ross.
    Superior Court of Pennsylvania.
    Submitted April 2, 1985.
    Filed Aug. 16, 1985.

      Michael P. Rowan, West Chester, for appellants.
    Stephen T. Martin, Assistant Public Defender, Media, for appellees.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the September 28, 1984 order below (1) dismissing appellants’ (the Gallaghers) exceptions to the August 23, 1984 verdict, (2) entering judgment in favor of appellee (Concorde Investments, Inc.) and against appellants in the amount of $33,750.00, (3) vacating a stay of writ of possession filed by appellee, and (4) ordering appellants to vacate the premises situated at 940 Mill Road, Radnor Township, Pennsylvania, and entitling appellee to possession thereof. For the reasons discussed herein, we affirm.

On June 30, 1983, appellants filed a complaint in equity against appellee seeking specific performance of an alleged oral agreement for the sale of the above-mentioned property and, alternatively, seeking to recover the sum of $29,000 for alleged improvements made to the subject premises. Appellee filed an answer and new matter on October 6, 1983, denying that any agreement was made for the sale of realty to appellants and that appellants’ claim was barred by the Statute of Frauds. Appellee also filed a counterclaim for rent allegedly due for appellants’ use and occupation of the property. In addition, appellee commenced a separate action in ejectment against appellants seeking to recover possession of the subject premises together with the rents allegedly due.

Appellants’ action in equity and appellee’s action in ejectment were consolidated for the purposes of trial. Following a May 21, 1984 non-jury trial, the lower court made the following findings of fact:

1. Arthur A. Gallagher and Aurea A. Gallagher, husband and wife, entered into a contract to purchase the property at 940 Mill Road, Radnor Township, Delaware County, Pennsylvania.
2. The Gallaghers were unable to come up with the funds to purchase the property, and, in lieu of default, approached Omar Tigrak to lend them the balance of the purchase price.
3. Omar Tigrak approached Concorde Investments, Inc., on behalf of Gallagher to arrange financing for the property.
4. Concorde Investments, Inc., agreed to accept an assignment of the contract from Gallagher, purchase the property themselves, and lease it back to Gallagher, with an option to purchase.
5. Gallagher executed a written assignment of the contract to Concorde Investments, Inc., on April 23, 1982.
6. On April 23, 1982, Concorde Investments, Inc., purchased the property at 940 Mill Road.
7. Gallagher took possession of the property a few days later that same month.
8. In June of 1982, Concorde prepared a written lease agreement with an option to purchase the property, as previously agreed upon, and delivered it to Gallagher’s attorney in Media, Pennsylvania.
9. The lease called for annual rent of $15,000.00 a year, with Gallagher being responsible for maintenance and taxes.
10. Gallagher never executed the written lease despite repeated requests to do so.
11. Arthur Gallagher never procured any coal nor performed any work for Cedac Trading Limited.
12. Neither Omar Tigrak nor Cedak [sic] Trading Ltd. ever agreed to pay Arthur Gallagher any money if Cedac Trading Ltd. did business with United Coal.
13. United Coal never provided coal for Cedac Trading Limited.
14. Concorde made repeated demands on Gallagher to pay rent for the property at 940 Mill Road.
15. Gallagher has occupied the premises at 940 Mill Road, Radnor Township, Delaware County, Pennsylvania, continuously for more than 2 years, and will not vacate despite demands of Concorde.
16. The Gallaghers have never made a single payment to Concorde on account of rent, taxes, or the purchase of the mansion at 940 Mill Road.
17. The Gallaghers never informed Concorde that they were making or intending to make any improvements to the Property.
18. The Gallaghers did not produce any receipts for any alleged improvements made to the property, for which they claim $30,000.00, despite repeated requests to do so.
19. There has never been a contract for the sale of the property between the parties.

(Lower Court Opinion, entitled “TRIAL BEFORE JUDGE SITTING WITHOUT JURY,” at 2-4). From these findings of fact, the court concluded as a matter of law that (1) appellants failed to prove the existence of an oral or written agreement of sale with appellee for the Mill Road premises, (2) appellants failed to prove with reasonable certainty the value of any alleged improvements made to the subject premises, (3) appellee is entitled to possession of the Mill Road property, and (4) appellants owed appellee $33,750 in overdue rent stemming from their use and occupation of the premises. A verdict was entered accordingly. Appellants' exceptions to the verdict were dismissed, and judgment was then entered on the verdict. This appeal followed.

Appellants contend first that the substantial part performance exception to the Statute of Frauds applies so as to warrant enforcement of the oral contract. The Statute of Frauds provides that:

§ 1. Parol leases, etc.; estates in lands not to be assigned, etc., except by writing
From and after April 10, 1772, all leases, estates, interests of freehold or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof; and moreover, that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law. 1772, March 21, 1 Sm.L. 389, § 1.

33 P.S. § 1. Thus, oral contracts to convey real estate violate the Statute of Frauds and are unenforceable. Fannin v. Cratty, 331 Pa.Superior Ct. 326, 329-331, 480 A.2d 1056, 1058 (1984); Briggs v. Sackett, 275 Pa.Superior Ct. 13, 16, 418 A.2d 586, 588 (1980); Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, 236 Pa.Superior Ct. 503, 506, 345 A.2d 279, 280-281 (1975). See also Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Superior Ct. 1, 9-11, 474 A.2d 1142, 1147 (1984); Haines v. Minnock Construction Co., 289 Pa.Superior Ct. 209, 216, 433 A.2d 30, 33 (1981). However, “[sjpecific evidence that would make recission of an oral contract inequitable and unjust will take such contract outside of the Statute of Frauds; partial performance, which has benefited the party invoking the Statute, will in appropriate circumstances, bar the invocation of the rule.” In re Estate of Brojak, 321 Pa.Superior Ct. 154, 167, 467 A.2d 1175, 1182 (1983); Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, supra 236 Pa.Superior Ct. at 506, 345 A.2d at 280. For example, specific performance may be ordered where it appears that continuous and exclusive possession of the subject property was taken under the oral contract and improvements were made by the buyer not readily compensable in money. Klingensmith v. Klingensmith, 375 Pa. 178, 184, 100 A.2d 76, 79 (1953); Briggs v. Sackett, supra 275 Pa.Superior Ct. at 16-17, 418 A.2d at 588-589.

Here, appellants allege that they have been in possession of the Mill Road premises since the last week of April, 1982, paid a $10,000 down payment on the property, and effected $29,000 worth of improvements between April, 1982, and May, 1984. Although it is undisputed that appellants have been in continuous and exclusive possession of the property, appellants failed to present any documented evidence (e.g., receipts) at trial in support of their testimony regarding the alleged expenditures. Moreover, according to the evidence accepted by the trial court, the $10,000 deposit was paid to a third party and would have been forfeited because of appellants’ inability to come up with the $90,000 balance of the purchase price. Therefore, we agree with the lower court that appellants have not proved their claim of substantial part performance.

Appellants contend next that the trial court erred in refusing to allow them to present documented evidence of their expenditures for the improvements. “It is axiomatic that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion.” Gallegor by Gallegor v. Felder, 329 Pa. Superior Ct. 204, 211, 478 A.2d 34, 38 (1984); In re Kirkander, 326 Pa.Superior Ct. 380, 383-385, 474 A.2d 290, 292 (1984); Burch v. Sears, Roebuck and Co., 320 Pa.Superior Ct. 444, 455, 467 A.2d 615, 621 (1983). The court may exclude evidence that is irrelevant, confusing, misleading, cumulative or prejudicial. See Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983); Gallegor by Gallegor v. Felder, supra 329 Pa.Superior Ct. at 211, 478 A.2d at 38; Burch v. Sears, Roebuck and Co., supra 320 Pa.Superior Ct. at 455, 467 A.2d at 621; Lewis v. Mellor, 259 Pa.Superior Ct. 509, 515, 393 A.2d 941, 944-945 (1978).

At the commencement of the instant trial, appellee’s counsel moved to exclude appellants’ evidence of their alleged improvements (i.e., receipts, cancelled checks, and documents) because appellants’ counsel never complied with appellee’s repeated requests for production of the documents. Appellants’ counsel responded that he told appellee’s counsel that the documents would be sent as soon as he received them and that the documents were only assembled the afternoon before trial commenced. Following an off-the-record conference in chambers, the trial court ruled to exclude the proffered evidence. (N.T. May 21, 1984 at 5-7). Although the court did not state on the record the reason for the exclusion, appellee avers in his appellate brief that appellants attempted to present at trial numerous cancelled checks as evidence of repairs and improvements to the property; that on several of the checks was written “Trip to Florida,” on one check was written “trip to Cleveland,” and the remainder of the checks were made out to “cash;” and that the court excluded the checks as irrelevant. (Brief for Appellee at 9). We recognized that this Court can consider only the facts in the record and not those interjected by a party’s brief. Siravo v. AAA Trucking Corp., 306 Pa.Superior Ct. 217, 218-219, 452 A.2d 521, 522 (1982); Society Hill Towers Owners Association v. Matthew, 306 Pa.Superior Ct. 13, 17-19, 451 A.2d 1366, 1369 (1982); McAllonis v. Pryor, 301 Pa.Superior Ct. 473, 475, 448 A.2d 5, 6 (1982). However, we note that appellants have not disputed appellee’s assertions or made contrary allegations as to the profferred evidence. Instead, appellants argue that, upon appellants’ failure to produce the requested documents, appellee’s counsel should have moved for sanctions under Pa.R.Civ.P. 4019(a) rather than make an oral motion in court to preclude the documents. Thus, appellants argue that exclusion was error. We disagree. Appellants have not even alleged that the excluded evidence was relevant, but have only sought to excuse their own noncompliance with appellee’s discovery requests. Under these circumstances, we find no abuse of discretion on the part of the trial court.

Appellants also contend that the trial court erred in admitting Exhibit PC-4, the unexecuted lease agreement containing rental terms and the option to purchase. See N.T. May 21, 1984 at 97-99, 117. This document was identified by David Faust, appellee’s director, officer and general counsel, and merely corroborated Faust’s own testimony as to the terms of the lease agreement and option to purchase as discussed by the parties. See N.T. May 21, 1984 at 95, 98; cf. Schmidt v. Campbell, 136 Pa.Superior Ct. 590, 593-94, 7 A.2d 554, 556-557 (1939) (powers of attorney admitted into evidence to corroborate other evidence and to substantiate defendants’ contentions, and not admitted for their legal efficacy). Although it is true that the lower court, in determining the money judgment, based its finding of a reasonable rental figure on a $15,000 per year rate, the term contained in the unexecuted agreement, this term was also testified to by Faust. Therefore, the trial court properly adjudged credibility and accepted the evidence presented by appellee’s witness. Accordingly, we find no abuse of discretion in the court’s admission of this document.

Appellants next allege trial court error in making the following findings of fact: (1) appellant Arthur Gallagher never procured coal nor preformed work for Cedac Trading Ltd.; (2) appellants never informed appellee that they were intending to make improvements and repairs to the property; and (3) there has never been a contract for the sale of the subject property between the parties.

It is settled that the findings of a trial judge sitting without a jury must be accorded the same weight and effect on appeal as a jury verdict, and will not be disturbed in the absence of an abuse of discretion or a finding of lack of evidentiary support____ An appellate court, however, is not bound by the trial court’s conclusions of law based on its findings of fact____ It is also clear that the party favored by the findings of the trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected____ This is particularly true in a case in which the credibility of witnesses must be closely evaluated.

Linnet v. Hitchcock, 324 Pa.Superior Ct. 209, 212-213, 471 A.2d 537, 539 (1984) (citations omitted). See also Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Superior Ct. 494, 500-502, 479 A.2d 1011, 1015 (1984); 2401 Pennsylvania Avenue Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 319 Pa.Superior Ct. 228, 236, 466 A.2d 132, 135-136 (1983). “The resolution of conflicts in the evidence presented is for the trier of fact.” In re Cummings Estate, 330 Pa.Superior Ct. 255, 135-136, 479 A.2d 537, 541 (1984). “Therefore, we must accept the trial judge’s findings with respect to the credibility of the witnesses and the weight to be accorded their testimony.” Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Superior Ct. 90, 114, 464 A.2d 1243, 1255 (1983). See also Valley Forge Historical Society v. Washington Memorial Chapel, supra; Hopkins v. Stepler, 315 Pa.Superior Ct. 372, 375, 461 A.2d 1327, 1328-1329 (1983); Dudash v. Dudash, 313 Pa.Superior Ct. 547, 552, 460 A.2d 323, 324-325 (1983).

So viewed, the evidence in the instant case amply supports the trial court’s findings of fact. Although appellants testified that they did inform appellee as to their intention to make improvements to the property and that Arthur Gallagher was due commissions from Cedac for work performed, the court apparently rejected this testimony and, instead, accepted David Faust’s testimony to the contrary. See N.T. May 21, 1984 at 100, 102. With regard to appellants’ assertion that there was a contract of sale between the parties, appellants curiously rely upon Faust’s testimony on cross-examination that there was an oral agreement whereby appeílee would purchase the property and appellants would then be given an option to purchase the property from appellee. (Brief for Appellant at 18). See N.T. May 21, 1984 at 94. However, appellants neglect to mention (and apparently reject) the remainder of Faust’s .testimony that this option to purchase was contained in a lease agreement whereby appellants were to pay rent at an annual rate of $15,000 per year (or $l,250/month). See N.T. May 21, 1984 at 97-99. Moreover, even under the terms of the option to purchase, appellants clearly failed to comply because they did not settle on the property by the end of April, 1983, or by June 10, 1983. The trial court accepted appellee’s evidence regarding the terms of the entire lease agreement and option to purchase, and we see no reason to overturn the court’s finding in this regard.

Appellants also contend that the trial court erred in failing to consider and credit the $10,000 down payment made by appellants on the original contract to purchase the residence. We disagree. Appellants paid the $10,000 deposit to Fox Field Associates, not to appellee. According to the evidence accepted by the trial court, appellants stood to forfeit this payment if they failed to complete settlement on the original sales contract. Therefore, the parties agreed that appellants would assign their rights as purchaser under that contract with Fox Field to appellee, and that appellee would then purchase the property and lease it back to appellants. The unconditional assignment, signed by both appellants, makes no provision for the $10,000 payment to Fox Field. Appellants have never paid appellee any rentals or purchase payments. Therefore, we fail to see how the trial court’s award of $33,750.00 in overdue rent unjustly enriched appellee.

Finally, appellants allege that there was a conflict of interest because Stephen T. Martin, appellee’s counsel, filed a preliminary objection in the nature of a demurrer on behalf of and at the request of David Ross, the other named defendant. This objection was sustained, thereby removing Ross as a defendant in the action. Prior to suit, appellee signed an agreement of sale for the subject property with Ross for $105,000.00. Thus, appellants argue that a conflict of interest existed because the same attorney represented both the purchaser and the seller to a realty sale and that such dual representation seriously thwarted settlement negotiations between appellants and appellee prior to and throughout the trial in the instant case. We find no merit in this argument. Martin’s representation of Ross was limited to filing the preliminary objection and appellee and Ross are not opposing parties in this suit. We fail to see how that single filing by Martin affected settlement negotiations.

Accordingly, because appellants have not presented any meritorious arguments, we affirm the order below.

Affirmed.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    497 A. 2d 643
    COMMONWEALTH of Pennsylvania v. Paul D. FAIR, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Aug. 23, 1985.

      Robert B. Keys, Jr., Lebanon, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and LIPEZ, JJ.
   CAVANAUGH, Judge:

Appellant, Paul D. Fair, appeals from an order following a finding of violation of parole. His claim on appeal is that the parole violation order is (a) violative of double jeopardy principles; (b) excessive; and, (c) subject to vacation since representation at the hearing was ineffective. We find no merit to these contentions and affirm the order.

In October, 1982, Fair was given four to twenty-three month concurrent sentences upon a conviction in Lebanon County. He was paroled after the expiration of the minimum sentence. In July, 1984, he was found to be in technical violation of his parole for voluntarily relinquishing his employment and for providing false information to his parole officer. At that time, the trial court sentenced Fair to concurrent periods of eight to twenty-three months incarceration. Thereafter, appellant petitioned for modification of the violation of parole sentence claiming that the new sentence violated his rights against double jeopardy. The court granted the petition for modification, but again found Fair to be in violation of parole. The court then revoked the parole previously granted, and ordered appellant recommitted “for the remainder of his maximum sentence, being the balance of the twenty-three months (original sentence).”

Appellant was correct in his attack upon the original order upon the violation of parole. The power of the court after a finding of violation of parole in cases not under the control of the State Board of Parole is “to recommit to jail____” Act of June 19, 1911, P.L. 1059 § 1, as amended, 61 P.S. § 314. There is no authority for giving a new sentence with a minimum and maximum. After recommitting the parolee, the court retains the power to grant reparóle. Id. The grant to parole or reparole is subject to the court’s discretion as to what “may seem just and proper.” Id. In such cases the defendant, when found in violation of parole, is not entitled as of right to credit for time spent on parole without violation. Commonwealth v. Michenfelder, 268 Pa.Super. 424, 408 A.2d 860 (1979); Commonwealth v. Broden, 258 Pa.Super. 408, 392 A.2d 858 (1978). Given this setting, and the limited alternatives open to a court upon finding of parole violation, we do not see the court’s order on reconsideration of the parole violation as being excessive. The court found the violations, though technical, to be serious:

THE COURT: First of all let me note that primarily the only thing that I would take issue with, with regard to counsel for Defendant’s comments was the seriousness with which the Court would consider the individual acts which were found to be in violation of the Defendant’s parole, and that included the determination of a violation of Rule 7 which in essence simply provides that when you are asked by the probation or parole department to provide information that you do it and you provide truthful information. As the testimony on July 6th revealed, in addition to voluntarily relinquishing employment which was a violation of Rule 3, that false information was willingly and knowingly provided by this Defendant to his parole officer.
Different people view things differently. We view that as a very serious violation of the terms and conditions of parole. Also we would view that upon review of the information provided at the parole violation hearing that there were not substantial grounds tending to excuse the Defendant’s conduct, in that the Defendant had clearly demonstrated that he, although accorded privileges of parole, was not responding affirmatively to those opportunities provided by his parole.

As to appellant’s double jeopardy argument, it has also been held that double jeopardy protection does not extend to the commitment for violation of parole. Gundy v. Commonwealth, 82 Pa.Commonwealth Ct. 618, 478 A.2d 139, (1984); McClure v. Commonwealth, 75 Pa.Commonwealth Ct. 176, 461 A.2d 645 (1983). In addition, when a trial judge acts upon a parole violation by resentencing beyond his authority, as here, the invalid sentence is a nullity and does not effect the authority of the proper authority (here, the court) to recommit the violator on his original sentence. Tillman v. Comm, of Pa., Pa. Bd. of Probation and Parole, 48 Pa.Commonwealth Ct. 325, 409 A.2d 949 (1980). Since the first parole violation “sentence” is a nullity, there would, in any event, be no double jeopardy violation. Compare, Commonwealth v. Martin, 387 Pa. 449, 127 A.2d 660 (1956); Commonwealth v. Hunter, 321 Pa.Super. 333, 468 A.2d 505 (1983); Commonwealth v. Love, 295 Pa.Super. 276, 441 A.2d 1280 (1982) (Hoffman, J. concurring).

The ineffective assistance of counsel claim is without merit. To the extent that it suggests that counsel should not have honestly stated his interpretation of the law, it is not worthy of consideration. In addition, it is clear from the record that counsel was instructed to proceed with the petition to modify his sentence after counsel discussed with Fair the alternatives he was faced with.

Order affirmed.

      . Thus, it is not certain that the result of being recommitted is necessarily more severe than the "sentence” previously given. In one respect, it is assuredly less since appellant’s maximum is nineteen months on being recommitted.

      . MR. SCHADLER [Atty. for Defendant]: Yes. I would believe that this Court would have those three options open to it. I advised Mr. Fair that he could get more time, that he would have credit for, I believe, four months of incarceration, and that he could possibly get up to 19 months. I also told him that the Court could exercise its other two options. So he has chosen, and I suggested that he still had the opportunity to withdraw this Petition for Modification of Sentence. After much discussion, he has decided to go through with it, and that’s where we are.


author: MONTEMURO, Judge:

text:
    497 A.2d 646
    Irene and Paul BOYER, Appellants, v. Stephen H. SMITH, M.D. and Quakertown Community Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued June 20, 1985.
    Filed Aug. 23, 1985.

      Peter J. Boyer, Philadelphia, for appellants.
    Joseph C. Bernstein, Allentown, for appellees.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   MONTEMURO, Judge:

This appeal presents the issue of whether to expand the current applicability of the doctrine of informed consent beyond cases involving medical treatment by operative procedures so as to encompass cases involving solely the administration of therapeutic drugs.

This action was commenced on January 31, 1979, before the Arbitration Panels for Health Care. On November 28, 1980, the matter was transferred to the Court of Common Pleas of Bucks County. On November 8, 9 and 10, 1982, a trial was held before the Honorable Edmund V. Ludwig and a jury. The jury returned a verdict in favor of appellee, Stephen H. Smith, M.D. On November 17,1982, appellants filed a motion for new trial and, following argument, the court below denied the motion on July 23, 1984. Upon appellants’ praecipe, judgment was entered for appellee on August 31, 1984, and this timely appeal followed.

Appellants’ sole post-trial challenge is to the lower court’s refusal to charge the jury regarding the doctrine of informed consent. At trial, appellants requested that the jury be instructed in pertinent part as follows:

If you find that the plaintiff, Irene Boyer, was not informed of the risks and alternatives to a health care service which a reasonable person would expect to know in order to be able to make an intelligent choice as to whether to undergo the treatment, the defendant Dr. Smith is liable for all of the injuries sustained by the patient as a result of the treatment.

As set forth in the Pa.R.A.P. 1925(b) opinion of the court below, the facts underlying this action are the following:

On September 26, 1978, Irene Boyer, age 55, who was accompanying her husband on his visit to Dr. Smith, an orthopedist, complained to the doctor of pain in her lower back and leg. Upon examining her, Dr. Smith diagnosed the condition as sciatica with possible nerve root compression. He prescribed a 10-day supply of 100 milligram capsules of butazolidin and bed rest and advised Mrs. Boyer that butazolidin could cause oral and gastrointestinal ulcers. He did not inform Mrs. Boyer about the possibility of other side effects. He was aware of its life-threatening potential and of the existence of less potent drugs. She was to notify him of the occurrence of any problems and was to return in seven to 10 days. At his direction, she obtained a complete blood count, which was within normal limits.
After taking the medication for a week, Mrs. Boyer developed symptoms consistent with a severe drug reaction. She was admitted to Quakertown Community Hospital and, as a result of pulmonary complications, was transferred to Allentown and Sacred Heart Hospital, where she remained until discharged some three weeks later.

Lower court opinion, 1-2.

The doctrine of informed consent was introduced into the law of this Commonwealth in 1966 by our supreme court’s opinion in Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). In Gray, an action was commenced seeking recovery for the unsuccessful performance of a surgical procedure. Plaintiff/appellant therein received a verdict in the amount of $80,000.00, the jury having found that the operation was performed without plaintiff/appellant’s consent. Thereafter, the lower court en banc granted defendant’s motion for judgment non obstante veredicto. On appeal, our supreme court reversed and reinstated the verdict of the jury. In Salis v. United States, 522 F.Supp. 989 (M.D.Pa.1981), the District Court for the Middle District of Pennsylvania aptly summarized the Gray opinion:

Writing for the majority, Justice ... O’Brien began with the proposition that consent to medical therapy is contractual in nature. According to this rationale, the physician and patient have an agreement concerning the scope and nature of the latter’s care, and the doctor has no right to come into contact with the patient’s body except within the terms of the compact. Thus, a surgeon who treats an individual without that person’s consent commits a technical battery and is responsible for the consequences of the tort____ Furthermore, after reviewing scholarly comment and precedents from other jurisdictions, Justice O’Brien concluded that assent to treatment is not really conscious unless made with knowledge of the risks and possible benefits. On this basis, the majority ruled that consent is only valid if the individual grants it after being apprised of such important matters as the nature of the therapy, the seriousness of the situation, the disease and organs involved, and the potential results of the treatment____ After an examination of the record, Justice O’Brien declared that the issue of consent had been properly placed before the jury and the verdict should be allowed to stand.

Sails, 522 F.Supp. at 997 (citations and footnote omitted). Significantly, as noted by the district court in Sails, “Pennsylvania has placed itself in a decided minority by choosing a ‘battery’ rather than [a] negligence theory in defining informed consent.” Id. at 997-98 n. 10.

In Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971), this court stated:

The law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his ‘informed consent’ (as now defined by Gray), is a prerequisite to a surgical operation by his physician. An operation without such informed consent is a technical assault, making the physician liable for any injuries resulting from the invasion, regardless of whether the treatment was negligently administered. [ ] Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Moscicki v. Shor, 107 Pa.Super. 192, 163 A. 341 (1932).

Id., 220 Pa.Superior Ct. at 265, 286 A.2d at 649 (footnote omitted).

In Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980), this court was presented with a novel issue, which we characterized as follows:

The sole question on appeal is whether a doctor who renders treatment to a patient consisting of the therapeutic administration of a drug with known potentially dangerous side effects is obligated to secure the patient’s informed consent to the treatment by disclosing to the patient all the facts, risks and alternatives that a reasonable person, in the situation which the doctor knew or should have known was that of the patient, would deem significant in making a decision to undergo the recommended treatment and should the court below so instruct the jury in the instant case?

Id., 280 Pa.Superior Ct. at 442-43, 421 A.2d at 804. Clearly, the issue presently before us is identical to that which was presented in Malloy. However, Malloy resulted in a plurality decision with Judge Watkins writing the opinion of the court, Judge Price concurring in the result, and Judge Hoffman vigorously dissenting. As such, Malloy provides us with ample guidance yet no clear precedence. See Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975).

In Malloy, Judge Watkins observed that “informed consent is required of [a] patient, absent an emergency, prior to a surgical operation____ However, this has not been extended to therapeutic treatment, which is usually an ongoing treatment upon examination by the treating physician, where any change of condition can be diagnosed and controlled.” Id., 280 Pa.Super. at 443, 421 A.2d at 804 (citations omitted). Judge Watkins went on to quote the trial court’s opinion noting that:

‘The doctrine of informed consent has been applied only to suits involving surgical operations or procedure, wherein “an operation without the patient’s consent is a technical assault”: Gray v. Grunnagle, 423 Pa. 144, 155 [223 A.2d 663] (1966). Questions of consent to medical treatment constitute “an area basically covered by contractual concepts”: Cooper v. Roberts, 220 Pa.Super. 260 [286 A.2d 647] (1971), at 268 [286 A.2d 647], The said doctrine has never been extended to the type of malpractice action brought herein and this Court will no(t) do so.’

Id. (brackets in original).

In his dissent, Judge Hoffman urged the adoption of a negligence theory of informed consent, stating:

Courts following this trend have recognized that the failure to obtain a patient’s informed consent does not correspond to the traditional concept of battery because the doctor’s omission rarely results from a wilful intent to injure the patient____ The physician customarily lacks the malicious state of mind associated with intentional torts____ Similarly, the physician’s culpable conduct, the failure to inform, does not itself involve a ‘touching’ of the patient.

Id., 280 Pa.Superior Ct. at 446, 421 A.2d at 805-06 (Hoffman, J., dissenting) (citations omitted). Judge Hoffman further posited, “The theory that failure to obtain informed consent to treatment constitutes a form of negligence eliminates the artificial requirement that the physician engage in a ‘touching’ and thus a battery in order to be held liable.” Id., 280 Pa.Superior Ct. at 447, 421 A.2d at 806 (Hoffman, J., dissenting). Judge Hoffman concluded that, under a negligence theory of informed consent, recovery would be available in therapeutic drug cases. See generally Comment, Informed Consent in Pennsylvania—The Need for a Negligence Standard, 28 Vill.L.Rev. 149 (1982-83).

We are of the opinion that the doctrine of informed consent should continue to be limited in its applicability to only those cases involving surgical or operative medical procedures. In Gray, supra, our supreme court expressly grounded its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery. To now expand the doctrine’s current applicability to cases involving the administration of therapeutic drugs would be to radically depart from, and indeed obliterate, the foundation upon which the Gray decision stands. Not only are we unpersuaded that such expansion is necessary, we consider ourselves bound by our supreme court’s pronouncements in Gray.

Furthermore, we are also of the particular opinion that, in light of the day-to-day realities of providing professional medical care, traditional medical malpractice actions, sounding in negligence, are an adequate legal medium for compensating patients for the injurious consequences of therapeutic drug treatment.

Accordingly, we affirm the judgment of the court below.

Judgment affirmed.

      . Appellants' action against Quakertown Community Hospital was dismissed by stipulation of counsel at the commencement of trial.

      . The law of this Commonwealth is that, in determining whether a patient's consent was indeed "informed", a fact-finder utilizes the following so-called "objective standard" and must consider "whether the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known tp be the plaintiffs would deem significant in making a decision to undergo the recommended treatment.” Cooper v. Roberts, 220 Pa.Super. 260, 267, 286 A.2d 647, 650 (1971). See also De Fulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979); Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976); cf. Act of October 15, 1975, P.L. 390, § 103, 40 P.S. § 1301.103.


author: POPOVICH, Judge:

text:
    497 A.2d 649
    COMMONWEALTH of Pennsylvania v. Susan M. O’HAYER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1985.
    Filed Aug. 23, 1985.
    Petition for Allowance of Appeal Denied Feb. 20,1986.

      William R. Bernhart, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence (48 hours to 12 days in jail, plus costs) by the appellant, Susan M. O’Hayer, for driving a vehicle while intoxicated (75 Pa.C. S.A. § 3731(a)(1)) and driving on the wrong side of the roadway (75 Pa.C.S.A. § 3301(a)). We affirm.

The facts are not complicated. The appellant drove her vehicle across a divided highway and struck an on-coming vehicle head-on. As a result thereof, she was taken to a nearby hospital for treatment in the early morning hours of February 4, 1983. Once there, the appellant consented to have her blood tested for alcohol since the accompanying police officer detected a strong odor of liquor on her breath.

The test was administered by Carol Ann Good, the hospital’s Medical Laboratory Technologist, under the eye of a supervisor. The results of the test indicated that the appellant had a .25 blood alcohol at the time of the accident. Thereafter, the appellant was arrested and charged with the Motor Vehicle Code violations cited previously.

The issues presented for our review, albeit not dealt with by an appellate court in this Commonwealth, are, as is evident from the appellant’s suppression and post-trial motions as well as the suppression court’s opinion to us, 1) whether the hospital was licensed by the Department of Health to operate a clinical laboratory; 2) whether the person who conducted the blood test met the requirements of the Department of Health; and 3) whether the testing equipment was approved by the Department of Health.

It is clearly evident from the suppression hearing transcript that the Director of Pathology at Reading Hospital and Medical Center (Dr. I. Donald Stuard) produced a license approved by the Pennsylvania Department of Health for the period when the appellant’s blood was removed and tested. (N.T. 50) In fact, at 13 Pennsylvania Bulletin 814 (1983), the hospital is listed as an approved laboratory by the Department of Health for the performance of serium and blood analysis. See Commonwealth v. Gotto, 306 Pa.Super. 434, 442 n. 8, 452 A.2d 803, 807 n. 8 (1982).

Therefore, we conclude that the appellant’s contention of lack of licensure on the part of the hospital is meritless. 28 Pa.Code § 5.11.

We next decide whether Carol Ann Good was qualified to conduct a test of the appellant’s blood.

We begin by noting that the Department of Health’s initial rules, proposed to govern clinical laboratories, defined “Technologist” to mean “a properly qualified individual according to § 5.24(a) of the [proposed] regulations.” 3 Pennsylvania Bulletin 1219 (1973). The applicable section read:

§ 5.24. Qualifications of technical personnel.
(a) A technologist performs laboratory tests which require independent judgment and responsibility with minimal supervision. He must have a bachelor’s degree in the biological or physical sciences; or in a medical technology, and one year of experience in a clinical laboratory acceptable to the Department.

3 Pennsylvania Bulletin 1221 (1973). Thereafter, on March 2, 1974, the Department of Health altered its proposed rules; e.g., “Technologist” was defined as “a properly qualified individual according to § 5.24 of the [proposed] regulations.” 4 Pennsylvania Bulletin 374 (1974). The relevant section provided:

§ 5.24. Qualifications of technical personnel.
(a) A clinical laboratory technologist shall perform clinical laboratory tests with minimal supervision by the director and/or supervisors, while working in those areas in which he is qualified by education and/or experience.

4 Pennsylvania Bulletin 376 (1974) (Emphasis added).

The final draft, which was altered an additional time before codification, appears at 28 Pa.Code § 5.24; to-wit:

§ 5.24. Qualifications of technical personnel.
(a) A clinical laboratory technologist shall perform clinical laboratory tests with minimal supervision by the director or supervisors, while working in those areas in which he is qualified by education or experience. A clinical laboratory technologist shall have the following qualifications:
(1) A baccalaureate degree in medical technology or in a chemical, physical, or biological science and clinical education in a program accredited by an agency recognized by the Department which includes one year of experience acceptable to the Department.
(2) An individual without the baccalaureate degree may become qualified as a technologist according to the provisions of section 241.
Title XI of the Social Security Amendments of 1972 Public Law 92-603, 42 U.S.C. § 1320a-2.
(b) Technical personnel below the level of technologist shall be determined by the director to be fully qualified for all assigned technical duties.
(c) Notwithstanding any other provision of this Chapter, any individual who has been employed in a clinical laboratory as a technologist prior to the effective date of these provisions may continue to act in such capacity and shall not be required to meet the requirements of subsections (a) and (b) of this section.

We learn from Mrs. Good’s testimony that her qualifications consisted of the following: 1) She attended Drexel University for three years; 2) She served a year in a clinical internship program at Nazareth Hospital School of Medicine; and 3) She practiced medical technology for the last 17 years, 5 years of which were in her present position at Reading Hospital. Her work was primarily in chemistry.

Also, Mrs. Good remarked that during her tenure at Reading Hospital she performed “several hundred” blood alcohol tests, and, consequently, “ha[d] used many times” the machine in question.

Turning to the statute, we observe that an individual in a clinical laboratory is considered competent to work in such an area if (s)he “is qualified by education or experience.” 28 Pa.Code § 5.24(a).

Instantly, aside from her educational credentials, we cannot discount the fact that Mrs. Good had 17 years of practical “hands-on” experience in the clinical field, with a concentration in the area of medical technology. We do not interpret Section 5.24, or 42 U.S.C. § 1320a-2 cited therein, to require more than was provided by the witness regarding her ability to perform properly the test at issue. This determination is reinforced by the Department of Health’s deletion, in the final draft, of the requirements that a “Technologist” must have had a bachelor’s degree plus one year’s experience (1973 proposal), as well as the excising of the criteria that such a person be qualified by “education and experience” (1974 proposal).

To acquiesce to the demands of the appellant, we believe, would render the language in the present statute relating to the reliance upon “experience”, as a criterion to satisfy the qualification requirement, to mere surplusage. We will not render a portion of the law ineffectual for such an action is contrary to statutory interpretation. 1 Pa.C.S.A. § 1921(a).

Finally, we address the contention of the appellant that the equipment utilized by Reading Hospital to analyze her blood alcohol was not approved by the Department of Health. We do not agree.

The Director of Pathology at Reading Hospital testified that his facility used the Dupont A.C.A. in testing for blood alcohol.

In checking the accuracy of the automated machine, the director recounted the following:

THE WITNESS: Well, Dupont makes reagent packs—individual reagent packs by lot numbers and we check those reagents with every lot number that we get according to standard. Everytime we do a legal blood alcohol, we do a standard one with one of the reagent packs and then we follow that through the instrument with the specimen and the next reagent pack, again, all from the same lot.
And the test, itself, is essentially an automated test where a compound in the reagent pack is altered by the chemical reaction, and that compound as it is altered changes the intensity of light that passes through the reagent pack, and for those of you who are familiar with the spectrophotometer, this is an automated spectrophotometer or light-measuring instrument, at the wavelenght [sic] which is most sensitive for the compound that is changing. And there is a standard run-of-the-mill practice for measuring chemical compounds of all sorts.
THE COURT: As I understand, this machine does not work like the Intoxilyzer for breath alcohol, that it transmits a reading, the operator of the machine must compare certain reactions from the reagents, and I assume there is a chart that you must follow to determine blood alcohol?
THE WITNESS: The instrument is so automated, Your Honor, that it makes those comparisons for you.
THE COURT: It does make the comparisons autimatically [sic]?
THE WITNESS: It is a sophisticated, electric instrument, like small computers, but it is—every instrument in the laboratory needs to be checked to make sure that it is functioning properly. That’s why you put a standard or alcohol through it at designated times, and that varies from instrument to instrument. In our case, we standardize by lot and before every legal blood alcohol.
(N.T. 55-57)

The director also recalled that when the hospital sends its “proficiency testing results” back to the Department of Health:

... we indicate the type of equipment on which the test was performed. It just so happens the type of equipment we use is quite standard and if they [—The Department of Health] wanted to object to it, I would think—
(N.T. 54-55) (Emphasis added)

At this point, to facilitate our discussion, we need to examine the relevant statutes on this matter; namely 28 Pa. Code § 5.103, which reads:

§ 5.103. Blood tests for blood alcohol content.
Equipment used for blood analysis to determine the amount of alcohol in a person’s blood which performs such analysis by means of gas chromatography, enzymatic procedures, distillation procedures, or diffusion procedures is approved by the Department provided that:
(1) The equipment is located within a clinical laboratory currently licensed by the Department.
(2) The particular brand or model of equipment used and any reagent or procedures relating thereto have not been prohibited by specific notification of the Department pursuant to § 5.46 (relating to reagents and equipment).
(3) Any clinical laboratory performing blood analyses with such equipment has in effect an approval to provide such special analytical services pursuant to § 5.50 (relating to approval to provide special analytical services).[]

And, we need to look at 28 Pa.Code § 5.46, which provides:

§ 5.46. Reagents and equipment.

Reagents, procedures, or equipment which have been demonstrated to be inadequate for clinical laboratory use as evidenced by reliable data from generally acceptable scientific testing and evaluating sources shall be prohibited for use by clinical laboratories upon specific notification by the Department. Also reagents, equipment, and procedures which do not have substantial proof of efficacy either by trial or extended use experience shall be prohibited for routine use.

Based on the fact, in light of the aforecited statutory language, that the Department of Health would have been notified of the type of machine Reading Hospital was using each time it sent in its “proficiency testing results” (as to the reagent packets) to reflect the continued accuracy of its machine, the Department of Health’s failure to notify the hospital of the prohibition of such a machine, as required by Section 5.46, for such testing purpose renders the Reading Hospital’s continued use acceptable and proper.

Evidence also indicates, from our review of the case law, that equipment similar to the type utilized by the hospital, i.e., the Dupont A.C.A., received approval from the Department of Health as early as January of 1978 in the Pennsylvania Bulletin. See Commonwealth v. Cook, 277 Pa.Super. 152, 419 A.2d 707 (1980).

Moreover, the Department of Health’s “notice” listing those “laboratories qualified to perform alcohol analyses of blood” included Reading Hospital and Medical Center.

Accordingly, finding none of the issues raised to be meritorious, we affirm the judgment of sentence.

      . It needs to be mentioned here that to the extent the Department of Transportation is the governmental agency which has the authority under subsection (a) of section 1547, 75 Pa.C.S.A. to approve the equipment used and the personnel to perform the chemical test of breath or blood, we need not delve into the distinction, as is applicable to the Department of Health having the authority to regulate the two aforementioned criteria, since the appellant’s argument would appear to be directed solely at subsection (c) of section 1547. This provision relates to the authority to be wielded by the Department of Health under the Motor Vehicle Code, as is applicable here. See Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980).

      . The federal statute reads:
      § 1320a-2. Qualifications for health care personnel
      (a) The Secretary, in carrying out his functions relating to the qualifications for health care personnel under subchapter XVIII of this chapter, shall develop (in consultation with appropriate professional health organizations and State health and licensure agencies) and conduct (in conjunction with State health and licensure agencies) until September 30, 1983, a program designed to determine the proficiency of individuals (who do not otherwise meet the formal educational, professional membership, or other specific criteria established for determining the qualifications of practical nurses, therapists, laboratory technicians, and technologists, and cytotechnologists, X-ray technicians, psychiatric technicians, or other health care technicians and technologists) to perform the duties and functions of practical nurses, therapists, laboratory technicians, technologists, and cytotechnologists, X-ray technicians, psychiatric technicians, or other health care technicians and technologists. Such program shall include (but not be limited to) the employment of procedures for the formal testing of the proficiency of individuals. In the conduct of such program, no individual who otherwise meets the proficiency requirements for any health care specialty shall be denied a satisfactory proficiency rating solely because of his failure to meet formal educational or professional membership requirements.
      (b) If any individual has been determined, under the program established pursuant to subsection (a) of this section, to be qualified to perform the duties and functions of any health care specialty, no person or provider utilizing the services of such individual to perform such duties and functions shall be denied payment, under subchapter XVIII of this chapter or under any State plan approved under subchapter XIX of this chapter, for any health care services provided by such person on the grounds that such individual is not qualified to perform such duties and functions.
      Aug. 14, 1935, c. 531, Title XI, § 1123, as added Oct. 30, 1972, Pub.L. 92-603, Title II, § 241, 86 Stat. 1418, and amended Dec. 5, 1980, Pub.L. 96-499, Title IX, § 911, 94 Stat. 2619; Sept. 3, 1982, Pub.L. 97-248, Title I, § 126, 96 Stat. 366.
      As for the promulgation of testing measures to gauge the proficiency of health care personnel, i.e., technologists, by this Commonwealth, in concert with the federal agency stated above, our meticulous review of the Pennsylvania Bulletin from 1972 through Volume 15, Number 27 (July 6, 1985), has uncovered the adoption of no such testing measures.
      Based on the testimony of Mrs. Good, the Director of Pathology at Reading Hospital and the documentary evidence before this Court, we find no reason to hold that the testing of appellant’s blood was improperly performed merely because of Mrs. Good’s "failure to meet formal educational or professional membership requirements.” 42 U.S.C. § 1320a-2(a).

      . Acronym for Automatic Clinical Analyzer.

      . See note 5, infra., for documentation that Reading Hospital also met the requirements of 28 Pa.Code § 5.50.

      . The "notice" provides:
      NOTICES DEPARTMENT OF HEALTH
      Approved Laboratories
      Notice is hereby given that the following laboratories are licensed by the Department of Health under the Clinical Laboratory Act (35 P.S. § 2151 et seq.) and are currently approved by the Department under 28 Pa.Code § 5.50, to perform alcohol analyses of blood and/or serum. This approval is based on demonstrated proficiency in periodic tests conducted by the Department’s Bureau of Laboratories. Accordingly, under section 3755 of the Vehicle Code, as amended by section 11 of Act 289 of 1982, 75 Pa.C.S. § 101 et seq., these laboratories are designated as qualified to perform the types of specialized services which will reflect the presence of alcohol in the blood. Persons seeking these services should determine that the laboratory they use employs techniques and procedures that are acceptable for forensic purposes. The list of approved laboratories will be revised semiannually.
      The symbols "S" and "B” indicate the following:
      S = approved for serum analyses
      B = approved for blood analyses
      SB—approved for serum and blood analyses
      ******
      Reading Hospital & Med. Ctr. SB
      Reading, Pa. 19602
      215-378-6080
      13 Pennsylvania Bulletin 812, 814 (1983).


author: WATKINS, Judge:

text:
    497 A.2d 655
    COMMONWEALTH of Pennsylvania v. John LUCIANO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1985.
    Filed Aug. 23, 1985.

      Charles J. Conturso, Morrisville, for appellant.
    Christopher J. Serpico, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before MONTEMURO, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

The appellant in this appeal, John Luciano, appeals from a summary conviction before a District Justice for violations of 75 P.S. § 1543(b), Driving While Under Suspended License related to driving under the influence and related summary offenses. These charges resulted in his placement within the Bucks County Accelerated Rehabilitative Disposition Program on September 22, 1983 and the suspension of his operating privileges for thirty (30) days on October 31, 1983. On November 23, 1983, the appellant was stopped and issued a citation for driving under suspended license—DUI related. The appellant appeared pro se before the magistrate and was found guilty. He was sentenced to ninety (90) days in prison and to pay a fine of $1,000.00 for this summary offense. Subsequently appellant appealed to the Court of Common Pleas of Bucks County for a trial de novo. By order dated November 20, 1984, following the trial de novo, the lower court dismissed the appeal. This appeal followed.

Initially, it must be stated that the appellant was neither informed of his right to file post-verdict motions under Pa.R.Crim.Pro. 1123, nor did he file such motions. Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). More importantly, however, the Common Pleas judge never imposed judgment of sentence. The order in question only dismissed the appeal. In Commonwealth v. Nugent, 291 Pa.Superior Ct. 421, 435 A.2d 1298 (1981), this Court held that dismissal of a de novo appeal from a summary conviction does not affirm the sentence imposed by the district justice, even where that sentence is required by statute. Entry of the judgment of sentence is essential to appealability.

Because the trial court failed to adjudicate appellant guilty or not guilty and also failed to impose judgment of sentence, the November 20, 1984 order is reversed and remanded to the lower court with instructions to enter a finding of guilty or not guilty, and if guilty, to impose sentence. Commonwealth v. Morgenthaler, 320 Pa.Superior Ct. 120, 466 A.2d 1091 (1983); Commonwealth v. Gula, 300 Pa.Superior Ct. 445, 446 A.2d 938 (1982).

Order reversed and remanded in accordance with this opinion. Jurisdiction relinquished.


author: BECK, Judge:

text:
    497 A.2d 656
    COMMONWEALTH of Pennsylvania v. Michael W. SCOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1985.
    Filed Aug. 30, 1985.

      John W. Nails, Chester, for appellant.
    Susan Kahn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

Appellant was convicted of murder in the third degree and possessing instruments of crime generally. Appellant was charged with first-degree murder, third-degree murder, voluntary manslaughter and possessing instruments of crime generally.

On appeal, appellant who was sentenced to life imprisonment, questions whether the court erred in stating during the jury waiver colloquy that the maximum sentence for third degree murder was ten to twenty years and whether this statement was prejudicial to him.

Appellant’s life sentence is based on section 9715 of the Sentencing Code, 42 Pa.C.S. § 9715:

Section 9715 life imprisonment for homicide (a). Mandatory life imprisonment—... any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth ... shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

The judge did not, however, commit error in stating that a conviction for third-degree murder carried a ten to twenty year sentence. At the time of the jury waiver colloquy the judge had no knowledge of appellant’s previous murder convictions. It can hardly be said that the court was in error in not informing appellant about the enlargement of sentence when the record of appellant’s prior convictions was not before the court.

Additionally, the charges against appellant in the matter sub judice, i.e., the charge of first-degree murder, exposed appellant to a life sentence. When appellant agreed to waive the jury, he already knew a life sentence was possible. Therefore, appellant cannot say that the judge’s statement relating to third-degree murder was the basis for his jury waiver and was prejudicial to him. Appellant makes no claim that if judge had accurately stated the consequences of conviction for third-degree murder, he would not have waived a jury trial.

Next, appellant argues that application of section 9715 to his case violates due process and constitutes an esc post facto law since appellant’s first homicide was committed prior to the effective date of section 9715.

Appellant’s due process argument fails. The language of section 9715 is clear and imposes a life sentence for conviction of third-degree murder on anyone “who had previously been convicted at any time of murder or manslaughter.” (Emphasis supplied.)

Appellant’s ex post facto contention is more troublesome. Appellant argues that the increased penalty of life imprisonment is for a crime committed before the effective date of the act. However, appellant’s reasoning is flawed. It is the crime committed by appellant after the effective date of the act which has brought appellant within the ambit of section 9715 and exposed appellant to the enhanced sentence of life imprisonment. See Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984) (the recidivist provision of the drunk driving law, 75 Pa.C.S. § 3731, was upheld against a similar ex post facto challenge).

Lastly, in the most general terms, appellant alleges his counsel’s ineffectiveness (1) for not informing him of the mandatory life sentence he would receive if convicted of third-degree murder; (2) for not objecting when the court advised appellant that third-degree murder carried a penalty of ten to twenty years; and (3) for failing to file motions relating to the validity of the sentencing statute, the validity of the jury trial waiver, the legality of appellant’s sentence, and the sufficiency of the information.

Thus, under the rubric of ineffectiveness, appellant reasserts several claims that he raised in the context of trial court error or abuse of discretion. Since we have already found that such claims have no arguable merit, we cannot say counsel was ineffective for not raising them. Commonwealth v. Williams, 314 Pa.Super. 355, 460 A.2d 1178 (1983).

Nor can we say counsel was ineffective in not challenging he legality of appellant’s sentence. Appellant’s prior homicide conviction was undisputed. The statute is clear that this second homicide conviction carried with it a mandatory life sentence. Therefore, we conclude any argument made by counsel challenging this aspect of the legality of appellant’s sentence would have no arguable merit, and appellant’s counsel accordingly cannot be deemed ineffective for failing to pursue such a claim.

Regarding appellant’s allegation that his counsel was ineffective for failing to contest the sufficiency of the information filed against appellant, we find that appellant has waived appellate consideration of the issue. A claim of counsel’s ineffectiveness cannot be raised in the abstract without an offer to establish a factual predicate upon which a reviewing court can evaluate counsel’s assistance. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Here, appellant makes the bare allegation that the information may have been flawed, but appellant does not support his allegation by reference to any specific deficiency in the information. Hence, appellant has not enabled appellate review of his claim.

Judgment of sentence affirmed.

      . Although not raised by appellant, the next logical question is whether the Commonwealth had a duty to inform the appellant or the court about the enlargement of sentence. Section 9715, subparagraph (b), answers the question in the negative:
      Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing.
      We do not reach the constitutionality of section 9715(b) which requies notice of the enlargement of sentence after conviction, because the application of the section was clearly constitutional in the case sub judice. Appellant was informed before his trial that the multiple charges against him exposed him to a life sentence.


author: HESTER, Judge:

text:
    497 A. 2d 659
    HUTCHISON ENTERPRISES, INC., Appellant, v. DATA BASICS EAST, INC., a/k/a Soft Star System and the Philadelphia Saving Fund Society.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Aug. 30, 1985.

      Joseph Rappaport, Philadelphia, for appellant.

      Horace D. Nalle, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   HESTER, Judge:

Summary judgment was granted to a garnishee because the sheriff’s return indicated service of the writ after the garnishee had made disbursements from a debtor’s account, even though a pleading filed by the garnishee admitted receipt of the writ prior to disbursing the debtor’s funds. The trial court held that the sheriff’s return was conclusive as to the time of service. We vacate the order granting summary judgment. We believe there exists a genuine issue of material fact.

BACKGROUND

Appellant recovered a judgment of $53,300.00 against Data Basics East on April 9, 1984. In an effort to collect on this judgment, appellant issued a writ of execution naming the appellee, the Philadelphia Savings Fund Society [PSFS] as garnishee. Upon receipt of the writ, PSFS placed a hold on the judgment debtor’s account.

PSFS’ records revealed that the writ had been received on April 18, 1984, at 10:45 A.M. but that the hold was not placed on the account until noon on April 19, 1984. In the interim, PSFS paid out four checks drawn on the debtor’s account totalling $11,047.92.

PSFS set forth this information in its answer to appellant’s interrogatories in attachment, and appellant sought summary judgment for the $12,728.79 in the debt- or’s account at the time PSFS admitted it had been served by the sheriff. Appellant asserted that it was no defense for PSFS to permit withdrawals of approximately $11,-000. 00 due to the fact that its computer failed to register the hold entry in a timely fashion.

After PSFS answered the interrogatories on the basis of its own records, the sheriffs return of service was filed. The sheriffs return showed that service was effected on April 19, 1984, at 1:25 P.M.

Both parties sought summary judgment. Appellant claimed that averments in a pleading render the facts indisputable as to the pleading party. PSPS, on the other hand, argued that a sheriffs return is conclusively presumed to be accurate as to facts within his personal knowledge, such as when the writ was served. The trial court accepted the conclusive presumption urged by PSPS and entered judgment for the bank.

ESTOPPEL

Averments in pleadings constitute binding judicial admissions, conclusive in their nature insofar as their effect is confined to the case in which they are filed. Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 176, 125 A.2d 451, 456 (1956); 4 Wigmore, Evidence § 1064 at 67 (Chadbourn rev. 1972); George M. Henry, Pennsylvania Trial Evidence § 65 at 102 n. 59 and at 104 (3d ed. 1940). Having pleaded that the bank received service of the writ on April 18, 1984, PSPS is estopped from denying service at that time.

SHERIFF’S RETURN

In equally unequivocal fashion, the law makes a sheriffs return of service which is full and complete on its face, in the absence of fraud, conclusive and immune from attack by extrinsic evidence, as to facts within the personal knowledge of the sheriff, such as when and where the writ was served. Hollinger v. Hollinger, 416 Pa. 473, 476-77, 206 A.2d 1, 3 (1965); Vaughn v. Love, 324 Pa. 276, 279, 188 A. 299, 300-01, (1936); Mischenko v. Gowton, 307 Pa.Super. 426, 429-30, 453 A.2d 658, 659 (1982).

RULE 1035

Paced with conflicting factual sources, each of which is legally conclusive, we cannot determine as a matter of law which source is correct. Pa.R.Civ.P. 1035 permits summary judgment only when “there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law.” The difference between the time of service stated in the sheriffs return and in the PSFS pleading is an issue of fact which must be resolved before judgment is entered.

The order is vacated and the case remanded for proceedings consistent with this opinion.

CAVANAUGH, J., concurs in the result.

      . The information was styled "New Matter” appended to PSFS’ answer to interrogatories in attachment, and was clearly intended by PSFS as a pleading since the document was endorsed with a notice to plead. We deem the new matter to constitute a pleading within the meaning of Pa.R.Civ.P. 1017. See Pa.R.Civ.P. 1026 and 1030.


author: HOFFMAN, Judge: CAVANAUGH, Judge,

text:
    497 A.2d 661
    Richard F. KOVALESKY v. ESTHER WILLIAMS SWIMMING POOLS, c/o P & M Distributors and Aluminum Shapes, Inc. and Donald A. Cerene and Lawrence Becker and Robert Laughlin. Appeal of ALUMINUM SHAPES, INC. and Esther Williams Swimming Pools. Robert P. KOVALESKY v. ESTHER WILLIAMS SWIMMING POOLS, c/o P & M Distributors and Aluminum Shapes, Inc. and Donald A. Cerene and Lawrence Becker, and Robert Laughlin. Appeal of Donald A. CERENE and Lawrence Becker.
    Superior Court of Pennsylvania.
    Argued April 2, 1985.
    Decided July 5, 1985.
    Rehearing Denied Sept. 13, 1985.

      Pamela B. Gagne, Philadelphia, for appellant (at 2855), for appellee, (at 2868).
    Joseph H. Jones, Pottsville, for appellee, Laughlin.
    John W. Ashley, Allentown, for appellant (at 2868).
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

These appeals are from the lower court’s October 12, 1984 order (1) refusing and dismissing the motion of defendants, Donald A. Cerene and Lawrence Becker (Cerene and Becker), for leave to join an additional defendant nunc pro tunc; and (2) refusing and dismissing the motion of defendants, Esther Williams Swimming Pools, c/o P & M Distributors (Esther Williams), and Aluminum Shapes, Inc. (Aluminum Shapes), for leave to join an additional defendant nunc pro tunc. For the reasons stated herein, we affirm.

On June 27, 1982, plaintiff Richard P. Kovalesky (Kovalesky) fell into a swimming pool on premises jointly owned by defendants, Cerene and Becker, and, as a result of injuries suffered in the fall, became a quadraplegic. Consequently, on July 21, 1983, in the Philadelphia Court of Common Pleas, Kovalesky filed a complaint in trespass and assumpsit against Cerene, Becker, Esther Williams, and Aluminum Shapes, alleging negligence and breach of warranties. On August 24, 1983, Cerene and Becker filed preliminary objections to the complaint in the nature of a motion for transfer of venue. On September 13, 1983, Esther Williams and Aluminum Shapes also filed preliminary objections in the nature of a motion for transfer of venue. On November 23, 1983, Cerene and Becker filed a praecipe for writ to join Robert Laughlin (Laughlin) as an additional defendant. It is undisputed that this praecipe for writ was never served upon Laughlin. On November 29, 1983, the Philadelphia Court of Common Pleas, per Judge White, upon consideration of the preliminary objections of all defendants, ordered the matter transferred to the Schuylkill County Court of Common Pleas. Pursuant to this order, the records were transferred to Schuylkill County on February 7, 1984.

On February 21, 1984, in the Schuylkill Court of Common Pleas, Esther Williams and Aluminum Shapes filed their answer and new matter to plaintiffs complaint. The new matter included a cross-claim against Laughlin as an additional defendant. On February 27, Cerene and Becker filed (1) a reply to the new matter raised by Esther Williams and Aluminum Shapes; (2) an answer, new matter and cross-claim (against Esther Williams and Aluminum Shapes) to plaintiffs complaint; and (3) a complaint against Laughlin as an additional defendant. On March 7, 1984, Esther Williams and Aluminum Shapes filed an answer to Cerene and Becker’s cross-claim. Then, on March 19, Laughlin filed preliminary objections in the nature of a motion to strike (1) the November 23, 1983 praecipe for writ to join him as an additional defendant filed by Cerene and Becker, (2) the February 21, 1984 cross-claim filed by Esther Williams and Aluminum Shapes, and (3) the February 27, 1984 complaint joining him as an additional defendant filed by Cerene and Becker. In the motion to strike, Laughlin alleged that the praecipe had been untimely filed in violation of Pa.R.Civ.P. 2253.

Subsequently, on March 28, 1984, Esther Williams and Aluminum Shapes filed a motion for leave to join Laughlin as an additional defendant nunc pro tunc. On April 25, Cerene and Becker also filed a motion for leave to join Laughlin as an additional defendant nunc pro tunc.

Pursuant to a June 29, 1984 order, filed July 2, the lower court, per Judge Dolbin, sustained Laughlin’s preliminary objections in the nature of a motion to strike. No appeal was taken from this order.

On October 12, 1984, the lower court, per Judge Lavelle, entered an opinion and order refusing and dismissing both motions for leave to join an additional defendant nunc pro tunc. Subsequently, Esther Williams and Aluminum Shapes filed their appeal on October 24, 1984; Cerene and Becker filed their appeal on October 26. On October 31, Cerene and Becker filed a statement of matters complained of on the appeal pursuant to Pa.R.A.P. 1925(b), which Laughlin answered on November 2, 1984. On November 8, Esther Williams and Aluminum Shapes filed their 1925(b) statement.

Rule 2252 of the Pennsylvania Rules of Civil Procedure provides that:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.
(b) If the person sought to be joined is not a party to the action the joining party may file as of course a praecipe for a writ or a complaint. If the joinder is by writ the joining party shall file his complaint within twenty (20) days from the filing of the praecipe for the writ. The complaint, in the manner and form required of the initial pleading of the plaintiff in the action, shall set forth the facts relied upon to establish the liability of the joined party and the relief demanded.

Rule 2253 sets forth the time limitation for joinder of an additional defendant, as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

Pa.R.Civ.P. 2253 (emphasis added).

I. Appeal of Cerene and Becker

Here, the record reveals that appellants, Cerene and Becker, filed their praecipe for writ to join Laughlin as an additional defendant approximately four months after service of the complaint upon them in violation of Rule 2253. Appellants contend, however, that just cause existed for the late joinder because they believed that the filing of the preliminary objections challenging the venue of the Philadelphia court tolled the running of the sixty-day period. In support of this contention, they cite Graham v. Greater Latrobe School District, 436 Pa. 440, 260 A.2d 731 (1970), and DiCarlo v. Vincent A. Nese Construction Co., Inc., 16 D. & C.3d 573 (Allegheny Co. 1980). In Graham, our Supreme Court held that the defendant had sixty days from the date its preliminary objections were overruled to join any additional defendants. It reasoned that:

Rule 2253 does not explicitly cover the situation of the joinder of additional defendants when the original defendant has filed preliminary objections to the complaint. If the objections are sustained, no problem will arise, however, for either the action will be dismissed or an amended complaint will be filed after which a sixty day period begins. When the objections are overruled, as here, reason and policy require that the defendant be given sixty days to join additional defendants. Preliminary objections attack the validity of the pleading, and until those objections are overruled, a court has not determined that the plaintiff has filed a valid complaint. Applying that reasoning to time periods (1) and (2) [within 60 days after service on the defendant of the plaintiffs complaint or of an amendment to plaintiffs complaint], the most reasonable construction of Rule 2253 would be that the defendant has sixty days from the time it is determined that plaintiff has filed a valid complaint. If no preliminary objections are filed, that will be the date of the filing of the complaint. If they are filed, that will be the date they are overruled. Also, it makes no sense to require the defendant to proceed as if the action will continue when he has before the court objections which, if successful, will terminate the litigation. No reasons of policy require that he follow these inconsistent paths at the same time.

436 Pa. 440, 444, 260 A.2d 731, 733 (1970). In DiCarlo, the Allegheny Court of Common Pleas extended the Graham ruling to cover preliminary objections which would not have terminated the litigation if sustained.

We find that Graham is distinguishable from the instant case and that DiCarlo is not binding on this Court. Our position is supported by Kerry Coal Co. v. Beckwith Machinery Co., 316 Pa. Superior Ct. 195, 462 A.2d 861 (1983). In that case, this Court held that the joining defendant did not have sixty days from the date his preliminary objections (claiming lack of venue and including a motion for a more specific pleading) were overruled to join an additional defendant without leave of court, stating: “Graham is only applicable when the preliminary objections are filed by the original defendant and, if successful, would result in the filing of an amended complaint by the plaintiff or in the action being dismissed.” Id., 316 Pa.Superior Ct. at 198, 462 A.2d at 863 (emphasis deleted). See also Commercial Banking Corp. v. Culp, 297 Pa. Superior Ct. 344, 348-49, 443 A.2d 1154, 1156 (1982) (“[W]here defendant files preliminary objections which would terminate the litigation as to a necessary party the theory of Graham applies and the sixty day period for joinder does not begin to run until the objections are ruled upon”); Pennsylvania Gas and Water Co. v. Lisbon Contractors, Inc., 288 Pa. Superior Ct. 267, 270, 431 A.2d 1041, 1042 (1981) (“[Wjhere an original defendant files preliminary objections [in the nature of a demurrer] to less than all counts of a multi-count complaint, Graham does not apply and the sixty day period for joinder of additional defendants goes forward as usual”; demurrer challenging only one of two counts of complaint would not have terminated the litigation even if successful, and parties sought to be joined were necessary parties to both counts of the complaint).

In the instant case, the preliminary objections in question only challenged venue and, if sustained, would not have terminated the litigation. Therefore, Graham does not apply and the sixty-day period lapsed prior to appellants’ filing of the praecipe for writ to join an additional defendant. Thus, we must determine whether the lower court erred in refusing to allow Cerene and Becker an extension of time within which to join Laughlin.

Under Rule 2253, leave of court must be sought, upon cause shown, to secure joinder of an additional defendant after the expiration of the sixty-day period prescribed for such joinder. Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970); Coppage v. Smith, 381 Pa. 400, 403-04, 113 A.2d 247, 249-50 (1955). The defendant’s petition seeking an extension of time to join an additional defendant must contain:

(1) some reasonable justification or excuse for the delay;
(2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b).

Goodrich-Amram 2d § 2253:3.1 at 108 (1977) (footnotes omitted) (emphasis added); see also Farmer v. General Refractories Co., 271 Pa. Superior Ct. 349, 352, 413 A.2d 701, 702 (1979). Whether there is “cause shown” for the allowance of an extension of time for the joinder of an additional defendant is a matter within the discretion of the lower court, and its decision will not be reversed absent an abuse of discretion. Zakian v. Liljestrand, supra 438 Pa. at 255, 264 A.2d at 641; Marnell v. Cross, 372 Pa. 82, 83-84, 92 A.2d 688, 689 (1953); Farmer v. General Refractories Co., supra 271 Pa.Super. at 352, 413 A.2d at 702; Welch Foods, Inc. v. Bishopric Products Co., 254 Pa. Superior Ct. 256, 259, 385 A.2d 1007, 1008 (1978); Desiderio v. R & R Tire Center, Inc., 242 Pa. Superior Ct. 135, 137, 363 A.2d 1197, 1198 (1976); Lamoree v. Penn Central Transportation Co., 238 Pa. Superior Ct. 380, 384, 357 A.2d 595, 597 (1976).

Additionally, “the burden of demonstrating sufficient cause to allow the unseasonable joinder rest[s] with defendant.” Welch Foods, Inc. v. Bishopric Products Co., supra 254 Pa.Super. at 258-59, 385 A.2d at 1008; accord Coopers & Lybrand v. Penn State Mutual Insurance Co., 32 Pa. Commonwealth Ct. 435, 438, 379 A.2d 901, 903 (1977). In determining what is sufficient cause for an extension of time for joinder of an additional defendant, courts

should be guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules were an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.

Zakian v. Liljestrand, supra 438 Pa. at 256, 264 A.2d at 641 (citation omitted). See also Coppage v. Smith, supra 381 Pa. at 405, 113 A.2d at 250 (procedural rules should “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable”); Ianni v. Pantalone, 238 Pa. Superior Ct. 548, 553, 361 A.2d 772, 774 (1976) (procedural rules governing third party procedure should “be construed to accomplish the purpose of ‘[avoiding] multiplicity of suits by adjudicating in one suit the rights and liabilities of all of the parties to a single transaction which constitutes the cause of action’ ...”); Martinelli v. Mulloy, 223 Pa. Superior Ct. 130, 135, 299 A.2d 19, 21 (1972) (Rule 2252(a) should be broadly interpreted “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution”).

Moreover, the length of the delay in joining an additional defendant is not, in and of itself, determinative of whether or not joinder should be allowed; rather, “[t]he length of the delay must be viewed in the context of the particular case.” Zakian v. Liljestrand, supra 438 Pa. at 256, 264 A.2d at 642; Welch Foods, Inc. v. Bishopric Products Co., supra 254 Pa.Super. at 259, 385 A.2d at 1008; Lamoree v. Penn Central Transportation Co., supra 238 Pa.Super. at 384, 357 A.2d at 597.

Here, Cerene and Becker contend that they did try to join Laughlin as an additional defendant within a relatively short period of time after the complaint was served, and that it was not until a significant time period later that the lower court determined that the initial filing of the praecipe was improper. They assert that the delay was due to the unexplained failure of the praecipe for writ to be served on Laughlin, and that they received notice of this failure only when Laughlin filed preliminary objections to the joinder complaint approximately four months later. They also argue that procedural defects should be disregarded when the substantial rights of the parties are not affected, and that this Court should liberally construe the procedural rules so as to avoid a multiplicity of suits.

After careful scrutiny, we find that the arguments presented by Cerene and Becker to justify the late joinder constitute nothing more than a “house of cards.” These arguments are premised upon appellants’ initial assertion that they reasonably believed that, once the preliminary objections challenging venue were filed, the sixty-day period of Rule 2253 was tolled. As we have already discussed, however, this belief was unfounded. See Kerry Coal Co. v. Beckwith Machinery Co., supra; Pennsylvania Gas and Water Co. v. Lisbon Contractors, Inc., supra. Thus, appellants had no excuse for failing to join Laughlin within the required sixty-day period. See Moore v. Howard P. Foley Co., 235 Pa. Superior Ct. 310, 318, 340 A.2d 519, 522 (1975) (inadvertence of counsel is not sufficient justification for delay in joining an additional defendant); Kearney’s Account, 136 Pa. Superior Ct. 78, 82, 7 A.2d 159, 161 (1939) (ignorance of the law is no excuse because everyone is presumed to know the law). Appellants’ additional reasons for the delay, namely, failure of the praecipe for writ to be served and the transfer of the case to another county, concern the period of time following the expiration of the sixty-day period and, thus, do not constitute good cause for the initial untimely joinder. Cerene and Becker were both present at the time of Kovalesky’s accident and were therefore aware of Laughlin’s involvement. Yet, they did not file the praecipe for writ to join Laughlin as an additional defendant until almost four months after service of the complaint upon them. Additionally, their motion for nunc pro tunc joinder was not filed until approximately five months after the filing of the praecipe for writ. Under these circumstances, we do not believe that Cerene and Becker acted expeditiously. “Before the defendant can ask the Court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself.” Zakian v. Liljestrand, supra 438 Pa. at 258, 264 A.2d at 642 (emphasis in original); Coopers & Lybrand v. Penn State Mutual Insurance Co., supra 32 Pa.Commonwealth at 439, 379 A.2d at 903 (emphasis in original).

Although we bear in mind that the procedural rules should be construed so as to avoid a multiplicity of suits, the burden is upon the defendants to justify their delay in joining the proposed additional defendant. Here, we find that appellants failed to satisfy their burden of demonstrating sufficient cause to allow the unseasonable joinder. Therefore, we affirm that part of the October 12, 1984 order dismissing the motion of Cerene and Becker for leave to join an additional defendant nunc pro tunc.

II. Appeal of Esther Williams and Aluminum Shapes

Having found that Cerene and Becker’s praecipe for writ to join Laughlin as an additional defendant was untimely filed under the rules of civil procedure, we must now determine whether the lower court properly denied the request of appellants Esther Williams and Aluminum Shapes, for late joinder. Appellants contend that they received no notice of the basis of Cerene and Becker’s assertions of liability against Laughlin until Cerene and Becker filed their answers to plaintiff’s request for the production of witness statements on February 7, 1984. Appellants then raised their claim against Laughlin in their answer and new matter filed on February 21, 1984. At that time, they believed that Laughlin had been properly joined by Cerene and Becker through the latter’s filing of the praecipe for writ. Appellants also claim that they could not have filed their answer and new matter earlier because the case was transferred from Philadelphia to Schuylkill County. Then, upon receiving notice of the defective service of the praecipe for writ, appellants promptly filed a motion for leave to join Laughlin nunc pro tunc.

We find that appellants’ reasons for their delay in joining Laughlin are inadequate. Even assuming that Esther Williams and Aluminum Shapes did not know of the defective service of the praecipe for writ of joinder upon Laughlin until Laughlin filed his preliminary objections on March 19, 1984, they should have known that this praecipe was filed after the expiration of the sixty-day period in violation of Rule 2253. Thus, their reliance upon the praecipe joinder in asserting their cross-claim against Laughlin was unjustified. Additionally, appellants’ arguments sidestep the fact that they themselves failed to join Laughlin within the sixty days following service of the complaint. Appellants’ only profferred excuse is that they were unaware of Laughlin’s possible liability. Appellants apparently failed to conduct their own investigation as to the cause of the accident and the potential liability of other persons. This Court has upheld an order refusing to permit joinder of an additional defendant where “the failure to effect a timely joinder was attributable to defendant’s failure to conduct an adequate investigation.” Welch Foods, Inc. v. Bishopric Products Co., supra 254 Pa.Super. at 261, 385 A.2d at 1009. Here, appellants could have acted promptly after receiving the complaint, e.g., by taking the depositions of their co-defendants, Cerene and Becker, and thereby discovered the existence and potential liability of Laughlin. Instead, they let the sixty-day period lapse and only asserted a claim against Laughlin after Cerene and Becker belatedly filed a praecipe for writ of joinder. Although we seek to avoid a multiplicity of suits, the procedural rules have been promulgated for a purpose and should not be ignored. Parties should not be encouraged to disregard time limitations in favor of relying upon the grace of the court.

Therefore, under the circumstances of this case, we do not believe that appellants have met their burden of demonstrating sufficient cause to justify the delay. Therefore, we also affirm that part of the October 12, 1984 order dismissing the motion of Esther Williams and Aluminum Shapes for leave to join an additional defendant nunc pro tunc.

Accordingly, we hold that the lower court did not abuse its discretion in entering the order below.

Affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. After reviewing the record and the briefs in this case, I would find that the defendants have reasonably explained their delay in seeking to join additional defendant Laughlin. Accordingly, I would conclude that the lower court abused its discretion in refusing to grant leave to join the additional defendant nunc pro tunc.

      . An order denying a petition for nunc pro tunc joinder of an additional party is a final order and appealable. Commercial Banking Corp. v. Culp, 297 Pa. Superior Ct. 344, 346, 443 A.2d 1154, 1155 (1982).

      . Laughlin was present at the scene of the accident and, accordingly to appellants, engaged in boisterous conduct and “roughhousing” with plaintiff in the pool.

      . The appeal filed by Esther Williams and Aluminum Shapes was docketed in the Superior Court at No. 2855 Philadelphia 1984. The appeal filed by Cerene and Becker was docketed at No. 2868 Philadelphia 1984.

      . All four appellants correctly point out that Cerene and Becker’s complaint against Laughlin was incorporated by reference in their motions to join an additional defendant nunc pro tunc. Thus, we find that the lower court erroneously found that the motions failed to include allegations which would render the proposed additional defendant alone liable, liable with, liable over to the defendants, or liable to the defendants on a proper cross-claim. Additionally, appellants alleged that the late joinder would not be prejudicial to the proposed additional defendant. However, as our opinion discusses, we find that appellants have failed to satisfy the remaining criterion, namely, that they demonstrate reasonable justification or excuse for the delay.

      . It is well-settled that:
      An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result or partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.

        Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).