author: PER CURIAM:

text:
    478 A.2d 1318
    COMMONWEALTH of Pennsylvania v. Ronald CIMOROSE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 11, 1983.
    Filed June 1, 1984.
    Reargument Denied Aug. 7, 1984.

      Thomas Q. Ciccone, Jr., Philadelphia, for appellant.
    Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from a judgment of sentence for possession of controlled substances, possession with intent to deliver and criminal conspiracy. Appellant and a co-defendant, Louis A. Moore, were tried by a jury and found guilty. Post-trial motions were filed and denied by the trial court. New counsel represents appellant on appeal. We have concluded that we must remand for an evidentiary hearing on whether trial counsel was ineffective.

The facts as stated by the trial court are as follows:

From January 23, 1981, until the early morning hours of January 31, 1981, the Pennsylvania State Police and other law enforcement officials conducted a surveillance of the Tunbridge Apartments in Middletown Township, Delaware County, Pennsylvania. (N.T. at 65). During the course of this surveillance the patterns of ingress and egress of occupants of Apartment D-204 were observed, which had been leased by Defendant Ronald Cimorose [appellant]. (N.T. at 8).
Defendant Cimorose was observed on January 23, 1981, carrying a large plastic bag from the apartment in question which he deposited in the communal trash dump in the apartment parking lot. (N.T. at 66). This trash was confiscated from the trash dump site and it was found to include methamphetamine residue.
Defendant Louis A. Moore was observed on a number of occasions in the parking lot of the apartment complex, opening the trunk to a black Ford Torino bearing a Maryland registration and license No. AJR 435. He was observed removing undetermined objects from the trunk and then returning to the apartment in question. (N.T. at 66-68, 182, 184). On January 23, 1981, Defendant Cimo-rose was also observed at the black Torino from which he apparently removed something from the trunk and returned to Apartment D-204. (N.T. at 65).
Based upon their observations, police obtained a search warrant from the premises of Apartment D-204 which they executed at approximately 12:30 A.M. on January 31, 1981. A quantity of drugs, money and drug related paraphernalia were seized as a result of the search. (N.T. at 71-72, 115).
Defendant Cimorose was arrested along with five other individuals, included a Juvenile, Annette Williamson, present inside the apartment at that time. (N.T. at 107). Defendant Moore was arrested outside the apartment at approximately 12:45 A.M. (N.T. at 145).
As a result of the evidence seized during the search of the apartment, a second warrant was obtained for the black Torino which had remained in the parking lot throughout the surveillance period. (N.T. at 76). A quantity of methamphetamine weighing 1.79 pounds was found inside the trunk of the Ford Torino. (N.T. at 61). Trial court slip opinion, at 2-3.

Appellant first argues that he was denied a fair trial because he was not aware of a court order that directed Annette Williamson to testify for the Commonwealth. The order in question was entered by a judge in Juvenile Court, and provided:

... that Annette Williamson, ... shall be temporarily housed at the Juvenile Detention Center at Lima, Pennsylvania, during the course of the [appellant’s] trial. It was ordered by the Court at the time of the hearing on the said Annette Williamson that she cooperate and testify on behalf of the Commonwealth in the trial of the [appellant]. The said Order is to continue only during the course of the trial for the purpose of protecting the witness and shall terminate at the end of the trial of the [appellant]. The within Order is not to be filed until after termination of the trial.

Appellant’s argument is that he should have been informed of this order “so that the same could be brought to the attention of the jury.” Brief of appellant at 16. This argument is without merit, for the jury was aware of the circumstances in which Williamson testified. Thus, the following testimony was elicited from her:

Q. [Assistant District Attorney] Has the Commonwealth made any promises to you in exchange for your testifying here today?
A. [Williamson] Just that my charges in Juvenile Court will be dismissed.
Q. What charges were they, or are they?
A. Possession with intent to distribute and conspiracy.
Q. Was that conspiracy in relation to the charges brought against Mr. Cimorose and Mr. Moore for which they’re here today?
A. Yes.

(N.T. July 28, 1981, at 15).

Appellant argues that the Commonwealth allowed Williamson to “falsely testify at trial that she did not have to testify against these appellant when in fact, the Court Order makes it clear that she had previously been so ordered to cooperate and testify by the Court.” Brief for appellant at 19. However, the record does not support this argument. Williamson testified as follows:

Q. [Counsel for co-defendant Moore] [The charges] haven’t been dropped yet; have they?
A. [Williamson] Uh-uh.
Q. They won’t be dropped until you testify against Mr. Moore?
A. Right.
Q. Do you know what happens if you don’t testify against Mr. Moore?
A. Yes.
Q. What happens then?
A. Then I go to jail.
Q. So you have to testify against Mr. Moore; don’t you?
A. No.
Q. If you don’t, you go to jail?
A. Then I’ll go to court and they’ll decide on that.

Id. at 33-34.

Nothing suggests that this testimony was false. The court order directed Williamson to testify “in the trial of” appellant, not Moore; and in any event, she admitted that she could “go to jail” if she didn’t testify against Moore.

Appellant next argues that trial counsel was ineffective in failing to request an accomplice instruction to the jury concerning the testimony of Williamson.

It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to the effect after being specifically requested to do so. Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969).

A witness is an accomplice if the witness “could be indicted for the crime for which the accused is charged.” Id., 436 Pa. at 268, 259 A.2d at 431, quoting Commonwealth v. Hopkins, 165 Pa.Super. 561, 564, 69 A.2d 428, 430 (1949). Since Williamson was charged with the same crimes that appellant was charged with, appellant would have been entitled to an accomplice instruction if one had been requested. Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). However, we are not prepared at this stage to declare that trial counsel was ineffective in failing to request an accomplice instruction. As the court held in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967): “[C]ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest.” (Emphasis in original). Accordingly, in Commonwealth v. Karabin, 493 Pa. 249, 253, 426 A.2d 91, 93 (1981), the court held that counsel was not ineffective in failing to request an accomplice instruction: “Rather, it was a trial tactic of an obvious sort: Karabin’s defense was that he did not perform the shootings. To request the accomplice instruction could derogate that defense.” We must therefore remand for an evidentiary hearing so that the trial court may determine whether in this case there was a similar tactical reason, or some other reasonable basis, for trial counsel’s failure to request an accomplice instruction.

Appellant next argues that the trial court should have given instructions on the “exclusive access” rule, and that trial counsel was ineffective in failing to raise that issue in post-trial motions.

The so-called “exclusive access” rule is relevant to the Commonwealth’s burden of proving either actual or constructive possession of a controlled substance. It is derived from 9 WIGMORE ON EVIDENCE § 2513 (3d ed. 1940), as originally applied in this jurisdiction in Commonwealth v. Kauffman, 155 Pa.Super. 347, 38 A.2d 425 (1944) (rule applied to stolen property found in garage). See also, Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Davis, 444 Pa. 11, 16, 280 A.2d 119, 121 (1971). The “exclusive access” rule is applicable when several people “other than the accused had equal access with him to the place in which the property was discovered.” Commonwealth v. Luddy, 281 Pa.Super. 541, 548, 422 A.2d 601, 605 (1980), cert. denied 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981). “[Evidence that the defendant was one of a group of persons on the scene where the contraband was found is insufficient to support an inference of constructive possession.” Id., 281 Pa.Superior Ct. at 548, 422 A.2d at 605.

It is, in effect, a statement of what degree of evidence is insufficient to sustain a conviction. The jury charge given by the trial court, while never alluding to the term “exclusive access” properly states what the jury must find in order to convict the appellant.

The charge given by the court on the element of possession was as follows:

In order to find the Defendant guilty of possessing a controlled substance, you must be satisfied that the following two elements have been proven beyond a reasonable doubt. First, that the Defendant or Defendants possessed methamphetamine. Second, that the Defendant, one or both, possessed that substance knowingly or intentionally. For a person to possess a controlled substance, he must have the power to control the intent to control that substance. A person cannot possess a controlled substance unless he is aware of the presence and the nature of that substance. In other words, he must know that he has the substance and he must know what it is. If you are satisfied that the two elements of possessing a controlled substance have been proven beyond a reasonable doubt, you should find the Defendant or Defendants guilty. Otherwise, you must find them not guilty of that charge.

(N.T. July 80, 1981, at 283). Later in the charge, the court further reiterated:

[F]or a person to possess a controlled substance, he must have the power to control and the intent to control that substance. A person cannot possess a controlled substance unless he is aware of the presence and nature of that substance. A person does not possess a controlled substance merely because he is aware of the presence and nature of the substance or because he is physically close to it. Apparent proof of such facts may be evidence tending to show possession. They do not of themselves establish possession. Two or more persons may have joint possession of a controlled substance provided each has the intent to exercise joint control of that substance and they share the power to control the substance. Each of the joint possessors is regarded as having possession of the substance for possession by the criminal law. In determining whether or not a Defendant has possession of a controlled substance, you should consider evidence of all facts and circumstances which may shed light on the question of whether a Defendant had the power to control and the intent to control that substance. If after considering all of these factors as to possession as to intent to deliver if you find the Commonwealth has established that one or both Defendants possessed the drug, methamphetamine, with the intent to deliver that drug to another person, then you may find that Defendant guilty. Otherwise, you must find the Defendant not guilty of that charge.

(Id. at 286-187). This charge is virtually identical with that recommended in Pa.S.SJ. (Crim.) 16.02(b)A CONTROLLED SUBSTANCE, “POSSESSION” DEFINED. It states the standards for possession, constructive possession and joint possession and the requirement that the Commonwealth is required to prove possession beyond a reasonable doubt.

A trial court is not required to accept requested instructions verbatim. The key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982), and is sufficient to guide the jury in its deliberations. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977); Com monwealth v. Porter, 300 Pa.Super. 260, 446 A.2d 605 (1982).

The evidence presented at trial did not warrant an instruction on “exclusive access.” With respect to the methamphetamine found in the apartment, such an instruction would be clearly inappropriate because the methamphetamine was on a table in front of the appellant and the appellant was holding a straw containing methamphetamine residue. With respect to the methamphetamine found in the automobile trunk, the evidence demonstrates that only the appellant and his co-defendant and co-conspirator, Louis Moore, had access to the trunk of the automobile. Although Moore may have been accompanied by other persons on his “supply runs” to the trunk, he is the one who unlocked and opened the trunk on each occasion. Thus, only Moore and the appellant (who also opened the trunk) can be said to have had access to the trunk.

There is much more in the present case than “evidence that the defendant was one of a group of persons on the scene where the contraband was found.” Here there are two persons with access to a locked trunk of an automobile (a locale of extremely limited access), apparently not in running condition, parked in the parking lot of the apartment complex where the appellant lives. Both of those persons utilized their access to the trunk of the automobile, where a large amount of a controlled substance was later found. The trial court charged the jury on joint possession and on constructive possession, both of which were applicable under the evidence presented. We find no error in the trial court’s charge and consequently must find no merit in appellant’s claim of ineffectiveness with respect to the charge.

Appellant next argues that the trial court failed to instruct the jury properly concerning the mere presence rule, and that trial counsel was ineffective in failing to raise that issue in post-trial motions. Appellant claims that evidence of his mere presence at the scene was insufficient to prove conscious dominion over the drugs. Commonwealth v. Macolino, 302 Pa.Super. 96, 448 A.2d 543 (1982), rev’d, 503 Pa. 201, 469 A.2d 132 (1983). This argument is without merit. As already stated, appellant was not merely present but was seated directly in front of the methamphetamine, holding a straw containing methamphetamine residue. A mere presence instruction was therefore not warranted, so that counsel was not ineffective in failing to raise that issue in post-trial motions.

The appellant finally contends that counsel was ineffective for failing to preserve for appeal an allegation that the trial court erred in admitting the contents of a black notebook into evidence. The appellant states that “[cjounsel’s objection was based upon failure of the Commonwealth to make any attempt to authenticate the handwriting or other entries in the book and that the entries could not properly be attributed to either Defendant at trial.” Brief for appellant at 29.

The Commonwealth had admitted into evidence, and was allowed to read to the jury, names, dates and figures from a black notebook. The black notebook was found in a locked closet in the appellant’s apartment; the key to the closet was in the possession of Moore. The black notebook contained entries, apparently the records of drug transactions, which were identical to entries made in a red notebook found in the possession of Moore at the time of his arrest. Moreover, Annette Williamson testified that she observed Moore making entries in the red notebook on January 25, 1981. Specifically, she stated, “[He was] [Rewriting the pages on something, copying the pages over.” (N.T. July 28, 1981, at 31). At trial, Trooper Ellis read from the black notebook the following statement, “I paid into Morton ...”, followed by a list of dates and sums. (N.T. July 29, 1981, at 188). “Morton” is a name by which the appellant is sometimes known. (N.T. July 28, 1981, at 26). It is the Commonwealth’s position that the contents of the notebook were admissible against the appellant because of the conspiracy between appellant and his co-defendant, Moore. Acts of a co-conspirator if in furtherance of the conspiracy may be admissible against the accused. 4 WIGMORE, EVIDENCE § 1079 (Chadbourn rev. 1972). However, there must first be adequate proof of a conspiracy. Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973). “Adequate proof of a conspiracy is not proof beyond a reasonable doubt, but merely proof by a fair preponderance of the evidence____” Id., 225 Pa.Superior Ct. at 497, 311 A.2d at 681. Herein, we conclude that it was at least arguable that the contents of the black notebook should not have been admitted against the appellant. Therefore, since a remand is required in any event, we find it appropriate for the hearing court to inquire into trial counsel’s failure to preserve the issue for appeal.

The judgment of sentence is vacated and the case is remanded to the trial court for an evidentiary hearing consistent with this opinion. Jurisdiction is relinquished.

      1. The substance found inside the trunk of the Ford Torino was 7% methamphetamine. N.T. at 237.

      . Since this appeal is the first time that appellant is represented by counsel other than his trial counsel, the issue of trial counsel’s ineffectiveness may be raised at this time. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

      . Appellant claims that the trial judge failed to comply with Pa.R. Crim.P. 1123, which requires the trial judge to advise the defendant of his right to file post-trial motions. This claim is without merit, for the record shows that appellant was so advised. Supplemental Record at 1.

      . We would also state that the instruction was unnecessary in light of the fact that the appellant was charged with only one count of possession and one count of possession with intent to deliver, respectively. Thus, the jury could have based the finding of guilt on the methamphetamine found in the apartment alone.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    478 A.2d 1324
    Nancy VOTEDIAN and Richard J. Votedian, her husband, Appellants, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, a Corporation.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed June 8, 1984.

      Ronald L. Muha, Pittsburgh, for appellants.
    Warren D. Ferry, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Where a policy of automobile insurance provides unequivocally that underinsured motorist coverages on several vehicles shall not be accumulated or stacked to increase the insurer’s maximum liability for any one accident, may the provisions of the policy be ignored because of “reasonable expectations” of the insured or because the limitation in the contract of insurance is violative of public policy? The trial court found that the policy provision was effective to limit the insurer’s liability. We affirm.

Richard Votedian and his wife, Nancy, were the owners of two automobiles, both of which were covered by a policy of automobile insurance issued by General Accident Fire and Life Assurance Corporation. For an additional premium of five ($5.00) dollars for each vehicle, the insurance company agreed to provide protection against uninsured and/or underinsured motorists, with a liability limit of $30,000.00. The policy provided, with respect to this coverage, as follows:

“The limit of liability shown in the Schedule for this coverage is our maximum limit of liability for all damages resulting from any one accident. This is the most we will pay regardless of the number of:
1. Covered persons;
2. Claims made;
3. Vehicles or premiums shown in the Declarations;
or
4. Vehicles involved in the accident.
However, the limit of liability shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.”

Nancy Votedian was seriously injured in a vehicular accident involving a motorist who carried liability coverage having a limit of $15,000.00. This sum was paid in full by the tortfeasor’s insurance carrier. Alleging damages in excess of $75,000.00, the Votedians made a claim for $60,-000.00 against their own carrier, General Accident, under the underinsured motorist coverage provided by the policy. The insurance company tendered a check for $15,000.00 which, it contended, was the maximum it was required to pay under the terms of the policy.

The Votedians commenced an action for declaratory judgment. Because their policy provided coverage for two vehicles, they contended that the limits of underinsured coverage should be accumulated or stacked to provide underinsured coverage to the extent of $60,000.00. General Accident, relying upon the language of the policy, contended that its maximum liability was $30,000.00, which had to be reduced by the sum of $15,000.00 previously paid by the tortfeasor’s insurance company. Motions for summary judgment were filed by all parties and resulted in the entry of judgment in favor of the insurance carrier. The Votedi-ans appealed.

When we undertake to interpret a policy of insurance, as is true in interpreting other contracts as well, our goal is “to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983) (citations omitted).

The language of the policy in this case is clear and unambiguous. The limit of the insurer’s liability is $30,-000.00; it shall not be required to pay more no matter how many vehicles are covered or premiums paid. Unless this provision violates public policy, it must be given effect. A court is not justified in deviating from the plain language of the policy except in rare instances. The import thereof cannot be avoided because appellants failed to read it or did not understand it. Contrary suggestions by this Court in Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974) and its progeny were expressly disapproved by the Supreme Court in Standard Venetian Blind Co. v. American Empire Insurance Co., supra. To hold that an insured has a “reasonable expectation” that he will be able to stack coverage when the policy expressly prohibits stacking is disingenuous, if not absurd. Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 339, 467 A.2d 345, 354 (1983), allocatur granted, No. 274 W.D. Allocatur Docket 1983 (February 10, 1984).

Appellants contend that clauses which attempt to prevent the cumulation or stacking of underinsured coverage are violative of public policy and, therefore, void and unenforceable. They rely on decisions which have declined to enforce language attempting to prevent the stacking of limits of liability in policies providing uninsured motorist coverage. Those decisions hold that clauses prohibiting the accumulation of uninsured motorist coverages are void because repugnant to purposes and policies established by the Uninsured Motorist Act. It was this Act which required that each motor vehicle liability policy contain uninsured motorist coverage. Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 337-338, 473 A.2d 1005, 1010 (1984); State Farm Mutual Automobile Insurance Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); Marchese v. Aetna Casualty and Surety Co., 284 Pa.Super. 579, 426 A.2d 646 (1981); Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).

Underinsured motorist coverage is not the same as uninsured motorist coverage. The Uninsured Motorist Coverage Act does not require underinsured motorist coverage; the statute contains no reference to and does not seek to regulate policies which provide underinsured motorist coverage. See: Davis v. Government Employees Insurance Co., 500 Pa. 84, 454 A.2d 973 (1982); Spencer v. State Farm Mutual Automobile Insurance Co., 319 Pa.Super. 226, 465 A.2d 1312 (1983); McDonald v. Keystone Insurance Co., 313 Pa.Super. 404, 408, 459 A.2d 1292, 1294 (1983); Obdyke v. Harleysville Mutual Insurance Co., 299 Pa.Super. 298, 302, 445 A.2d 763, 765, aff’d, 500 Pa. 107, 454 A.2d 984 (1982); Kitchen v. Automobile Insurance Co., 299 Pa.Super. 256, 258-259, 445 A.2d 552, 553 (1982); Young v. United States Fidelity & Guaranty Co., 299 Pa.Super. 237, 240-241, 445 A.2d 542, 544 (1982), appeal dismissed, 500 Pa. 233, 455 A.2d 635 (1983). In enacting the Uninsured Motorist Coverage Act, the legislature “intended only to create a means to provide minimum coverage to persons injured by financially irresponsibile [sic] motorists carrying less than the legal minimum or no insurance. Our legislature did not intend to provide additional insurance to those who although they suffered severe injury had recourse to at least the legal minimum of insurance through the other motorist.” McDonald v. Keystone Insurance Co., supra, 313 Pa.Superior Ct. at 408, 459 A.2d at 1294. See also: Davis v. Government Employees Insurance Co., supra, 500 Pa. at 89, 454 A.2d at 975.

The legislature has not by statute established a policy which compels the writing of underinsured motorist coverage. An insurance company is wholly free to issue a policy of automobile liability insurance which contains no protection whatsoever against underinsured motorists. Although companies, for an additional premium, may undertake to write such coverage, the underinsured motorist feature is purely optional. An insured may purchase such coverage or he may decline to pay the premium charged therefor and accept a policy which contains no such coverage. When underinsured motorist coverage is included, the terms and limitations thereof are not controlled by statute or by public policy but by the agreement reached by the parties. That agreement, as expressed in the policy of insurance, may place limitations upon underinsured motorist coverage, subject only to the requirement that the limitation be clearly worded and conspicuously displayed.

In Antanovich v. Allstate Insurance Co., supra, this Court held that the policy established by the legislature with respect to uninsured motorist coverage was different from and, therefore, inapplicable to insurance coverage provided pursuant to the No-Fault Motor Vehicle Insurance Act. Although it cannot be said that the decision in Antanovich is determinative of the present case, it does suggest that, except as provided by pertinent statute, there is no general policy in this Commonwealth which prevents a writer of automobile insurance from inserting in its policies a limitation which prevents stacking. If an insured motorist desires to purchase greater or even unlimited underinsured motorist coverage, he can undoubtedly do so by tendering an increased premium. A court, however, will not rewrite an agreement reached by the parties which prevents the cumulation of liability limits according to the number of vehicles insured. The limitation on stacking contained in the instant policy violated no public policy; and, therefore, the contract must be enforced according to its express and unambiguous terms.

For similar reasons we must give effect to the policy provision which requires a set-off for sums previously paid by persons legally responsible to pay damages. The limit of appellee’s liability is $30,000.00, but reduced by the sum of $15,000.00 previously paid on behalf of the tortfeasor legally responsible for appellee’s damages. The language of the policy is clear; it is not ambiguous. When it provides that the insurer’s “limit of liability shall be reduced ...” by payments made, that is what it means. It will not be rewritten, as appellant argues, to provide only that “the insured’s damages should be reduced” by such payments. To do so would disingenuously twist the clear manifestation of the parties as expressed in the unambiguous provisions of their agreement.

We recognize, as did the Supreme Court in Davis v. Government Employees Insurance Co., supra, “the ‘oft cited anomaly that those in the position of these claimants would find themselves in a better position were the tort-feasor’s vehicle totally uninsured, rather than underin-sured.’ This anomaly, however, stems from the fact that the Legislature has chosen not to require insurance coverage for those instances in which a tortfeasor’s insurance is insufficient to satisfy the injured party’s claims.” Id., 500 Pa. at 91, 454 A.2d at 976. (citation omitted). Since the legislature has not chosen to establish a policy with respect to underinsured motorist coverage, the clear language of the policy which prevents stacking must be followed.

The disputed provisions in the insurance contract between the parties have been clearly and unambiguously written. The trial court properly gave effect to the language thereof. We can do no less.

Judgment affirmed.

      . The policy defined an underinsured vehicle as one "to which a bodily injury liability or bond applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.”

        . Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000.

      . The Motor Vehicle Financial Responsibility Law, enacted February 12, 1984 and effective October 1, 1984, requires that future motor vehicle liability insurance policies contain both uninsured and under-insured motorist coverage. See: 75 Pa.C.S. § 1731(a).

      . The legislature has provided in the recently enacted Motor Vehicle Financial Responsibility Law that first party benefits, which include medical costs, income loss, etc., "shall not be increased by stacking the limits of coverage of: (1) multiple motor vehicles covered under the same policy of insurance; or (2) multiple motor vehicle policies covering the individual for the same loss.” 75 Pa.C.S. § 1717 (effective October 1, 1984).


author: McEWEN, Judge:

text:
    478 A.2d 1328
    Nancy J. GALFORD, Executrix of Estate of Leonard C. Burkhouse, Deceased v. Karl E. BURKHOUSE, Appellant. ESTATE OF Leonard C. BURKHOUSE, Burkhouse, Deceased. Appeal of Karl E. BURKHOUSE.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed June 8, 1984.

      Patrick J. Kronenwetter, Emporium, for appellant.
    Deborah W. Babcox, Smethport, for appellee (at No. 2007) and for participating party (at No. 2008).
    Before McEWEN, HESTER and LIPEZ, JJ.
   McEWEN, Judge:

This appeal provides a reflection of a family in turmoil and focuses upon the effect of two documents, namely, a deed and a will. The distinguished President Judge Paul B. Greiner provides in his able opinion a recitation of the factual history which reveals the roles of the parties to the appeal as well as the issues presented by the appeal:

[Leonard and Mena Burkhouse were the parents of Nancy Galford and Mary Fowler. Mina Burkhouse had a son by a prior marriage, Marcellus Haupt. Leonard Burk-house had two children by a prior marriage, Karl Burk-house and Dorothy Arlene Blinzer.]
The dispute among the parties which has given rise to both the cases under consideration here arose out of certain events that occurred in March and April of 1979. Both Leonard C. Burkhouse and his wife Mina were gravely ill, and it appeared that Mina, especially, might require extended care in a.nursing home at considerable expense.
Plaintiff Leonard and Mina at the time owned certain real and personal property located in Shippen Township, Cameron County, Pennsylvania. The real property consisted of approximately fifteen acres of land and a house, subject to a mortgage in favor of the Bucktail Bank and Trust Company of approximately $10,300.00.
Testimony by Leonard at a deposition taken June 3, 1980, and introduced at trial as well as the testimony at the May 20th hearing, established that Leonard became concerned about how to preserve this property so that it could be used to pay for his wife’s care in case he died. He did not, however, want the property to become subject to attachment or lien by any welfare agency. Accordingly, Leonard discussed with several of the children the question of which of them might be best qualified to manage the property for Leonard’s benefit and especially for his wife’s benefit. Apparently because Karl was a businessman who owned and managed other real properties and was fairly well off as compared to some of the other children, Leonard decided to deed the property to Karl. Leonard C. and Mina C. Burkhouse therefore executed on April 3, 1979, a deed conveying all their interest in the real estate referred to above to Karl. On the same day, Karl executed a bond and warrant to the Bucktail Bank and Trust Company pledging his personal liability on the mortgage indebtedness originally incurred by Leonard C. and Mina, who were to remain jointly and severally liable on the indebtedness. The Bucktail Bank and Trust Company simultaneously executed a waiver of the nonassumable provisions of the mortgage from Leonard C. and Mina C. Burkhouse, thereby allowing the transfer of title of the real estate to Karl E. Burkhouse subject to the lien of mortgage of the real estate. Mina Burkhouse remained in the hospital and subsequently died in December 1979. Leonard, however, was hospitalized for some time in the spring of 1979 and unexpectedly began to recover somewhat. Following his return home in late May of 1979, several meetings were held between Leonard and the various children to discuss what should be done with the property [which had been deeded several weeks earlier to Karl] after Leonard’s death, as earlier recited. These conversations were inconclusive and conflicting testimony concerning them was presented at trial. Leonard himself stated, however, that sometime during the summer of 1979 he decided that the property should go to his daughter Nancy Galford, who had agreed to give up her job and move with her family into the house with her father in order to take care of him. Leonard, in his deposition, claimed that Karl on more than one occasion agreed to do as his father wished and convey the property to Nancy but he never did so.
In the face of these persistent refusals by Karl, Leonard filed the within action against him in early February 1980 [seven months before his death]. On February 11, 1980 Karl executed a “Declaration of Trust” in which he acknowledged that the transfer of property to him in April 1979 by his father had been a conveyance to him as Trustee, but he declared that the terms of the trust were:
(a) that the property be maintained as a home for Leonard during his lifetime if possible, or sold, if necessary, to provide for Leonard’s maintenance and care, and
(b) that upon Leonard’s death the property was to be divided equally among Karl, Arlene Blinzler, Mary Fowler, Nancy Galford, and Marcellus Haupt.
In the meantime, Leonard’s daughter Nancy Galford had given up her job and moved with her family into the family home to care for her father. Leonard remained bedridden, but apparently at no time was his mind affected by his illness. No testimony was presented at trial to the effect that Leonard’s intellect was in any way weakened by his illness. Uncontroverted testimony at trial indicated that he continued to hold office as Chairman of the Portage Township Board of Supervisors, and to perform the duties of that office as best he could in view of his bedridden state until a few days before he died in September 1980.
The will naming Nancy Galford as Executrix and sole beneficiary of Leonard’s estate, which is the subject of the appeal from the Register of Wills in this action, was prepared at the direction of Leonard by the attorneys for the plaintiff in the above described equity action. It was signed by Leonard and witnessed by the attorneys at the time his deposition was taken on June 3, 1980. The contestants maintain that this will was made while Leonard was “under the undue influence of Nancy J. Galford and her husband Craig Galford.” Both Karl and Arlene testified that the alleged “undue influence” consisted of Nancy’s threatening to cease taking care of her father unless she was given the house and fifteen acres.
Arlene Blinzler testified at the May 20, 1981, hearing that during a visit to her father at his home on May 30, 1980, she drafted, at his request, a document that he then signed and which the contestants to the June 3, 1980, will allege is the only valid will executed by decedent. This will purports to set forth Leonard’s desire that upon his death Karl is to “divide all my belongings 4 ways, Nancy, Mary, Karl and Arlene.” The contestants take the position that since Leonard’s signature on the June 3, 1980, will was procured by undue influence the earlier will in Arlene’s writing is valid, and therefore even if the proponents of the June 3, 1980, will are successful in their equity action, under the will dated May 30, 1980, the property should be divided four ways, and distributed to Karl, Arlene, Mary, and Nancy, (citations to record omitted)

Appellants have taken these appeals, which have been consolidated, from the final decree of the Court of Common Pleas which (1) imposed a resulting trust upon real property to which appellant Karl E. Burkhouse held legal title; (2) directed Karl to reconvey the realty to the estate of his deceased father, Leonard C. Burkhouse; (3) affirmed the grant of letters testamentary to appellee Nancy Galford, the daughter of Leonard; and (4) dismissed the Petition for Citation Sur Appeal filed by appellants Karl Burkhouse, D. Arlene Blinzler and Mary Fowler from the action of the Register of Wills which admitted to probate the instrument of June B, 1980 as the last will and testament of Leonard Burkhouse and granted letters testamentary thereon to Nancy Galford.

The first of the two actions involved in this appeal was an equity action commenced by Leonard Burkhouse seeking an order directing his son Karl Burkhouse (a) to reconvey real estate Leonard had deeded to Karl in the Spring of 1979, or, in the alternative (b) to convey the property to Nancy either immediately or upon the death of Leonard. On September 1, 1980, prior to a hearing on the matter, Leonard died and Nancy, the executrix of his estate pursuant to the will executed on June 3, 1980, was substituted as plaintiff.

The second action arose when Karl, Arlene and Mary appealed from the admission of the will, dated June 3, 1980, to probate and the issuance of letters testamentary thereon to Nancy Galford. As noted in the trial judge’s opinion, appellants alleged that the will had been procured by the “undue influence, duress and constraint” of Nancy and her husband and sought admission to probate of a document dated May 30,1980, which had been prepared by Arlene and signed by Leonard.

The trial judge ruled in the equity action that while the claimed oral trust of the realty was void under the Statute of Frauds, a resulting trust in favor of the estate of Leonard was to be imposed upon the realty. As for the will contest, the court concluded that appellants had failed to establish any “undue influence” and held, therefore, that the will dated June 3, 1980, had been properly admitted to probate.

Appellants argue that the chancellor erred in concluding that the transfer of the realty to Karl created a revocable trust and that the will admitted to probate was not the product of undue influence. Appellants also seek an order directing that the writing drafted by Arlene and signed by Leonard be admitted to probate as the Last Will and Testament of Leonard.

The adjudication of the trial court has ably disposed of the probate issues and we, therefore, confine our discussion to the determination of the Chancellor that the real property titled in Karl’s name was subject to a resulting trust for the benefit of the estate of Leonard. On appeal, appellants have formulated the issue as whether the evidence supports a finding that the oral trust was revocable. Our review of the Chancellor’s adjudication leads us to conclude that appellants misapprehend the reason that Karl was ordered to convey the property to Leonard’s estate. The Chancellor specifically stated that he was unable to determine the terms of the oral trust, including whether Leonard had reserved a power of revocation. The trial court was not, however, thereby restrained from directing Karl to recon-vey the property since the question of whether Leonard intended to retain a power of revocation, when he attempted to create an oral trust of the real property, was irrelevant to the issue of whether the property was subject to a resulting trust for the benefit of the estate of Leonard.

The scope of review to be employed by this Court when presented with an adjudication in equity is well established. As observed by our distinguished colleague Judge Gwilym Price:

The chancellor’s findings of fact, affirmed by the court en banc, have the effect of a jury verdict and will not be reversed on appeal if adequate evidence is present to support them and they are not premised on erroneous inferences and deductions or in error of law. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976); Onorato v. Wissahickon Park, Inc., 430 Pa. 416, 244 A.2d 22 (1968). Thus, our function is not to substitute our view for the chancellor’s but, rather, to determine whether a judicial mind, on due consideration of the evidence as a whole, could reasonably have reached the conclusion of the chancellor. Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 383 A.2d 808 (1978); Payne v. Kassab, 468 Pa. 226, 361 A.2d 263 (1976). Nevertheless, conclusions of law or facts, being derived from nothing more than the chancellor’s reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable. Felmlee v. Lockett, 466 Pa. 1, 351 A.2d 273 (1976); In re Estate of Thomas, 463 Pa. 284, 344 A.2d 834 (1975).

Krosnar v. Schmidt Krosner McNaughton, 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980). Accord Dailey’s Chevrolet v. Worster Realties, Inc., 312 Pa.Super. 275, 280-81, 458 A.2d 956, 959-60 (1983); In Re Irrevocable Inter Vivos Trust of Hanley, 307 Pa.Super. 153, 162, 452 A.2d 1360, 1365 (1982).

The Pennsylvania Statute of Frauds, Act of April 22, 1856, P.L. 532, § 4, 33 P.S. § 2, provides that all declarations or creations of trusts of real property are void in the absence of a writing evidencing their creation. Therefore, while all parties to this litigation agree that Karl held only bare legal title to the realty while Leonard had both the beneficial interest and possession, no valid trust was created due to the operation of the Statute of Frauds. See Huber v. Wagner, 284 Pa.Super. 133, 135, 425 A.2d 456, 457 (1981).

Where an express trust fails, a resulting trust may be imposed by operation of law. See Borden v. Baldwin, 444 Pa. 577, 584, 281 A.2d 892, 896 (1971). Section 411 of the Restatement (Second) of Trusts (1959) provides:

Where the owner of property gratuitously transfers it and properly manifests an intention that the transferee should hold the property in trust but the trust fails, the transferee holds the trust estate upon a resulting trust for the transferor or his estate, unless the transferor properly manifested an intention that no resulting trust should arise or the intended trusts fails for illegality.

See also Bogert, Law of Trusts and Trustees, § 468 (2d ed revised 1977). Accord Hermann v. Henderson, 353 Pa. 39, 40, 44 A.2d 254, 255 (1945). See also Yuhas v. Schmidt, 434 Pa. 447, 456, 458, 258 A.2d 616, 621-622 (1969); In re Estate of Summers, 424 Pa. 195, 197, 226 A.2d 197, 199 (1967); Eckart v. Hubbard, 184 Mont. 320, 327, 602 P.2d. 988, 992 (1979); Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex.Civ.App.) (1978). The Statute of Frauds specifically exempts such trusts, implied in law, from its operation. Semenza v. Alfano, 443 Pa. 201, 204, 279 A.2d 29, 31 (1971); Hermann v. Henderson, supra, 353 Pa. at 40, 44 A.2d at 255 (1945); Potoczny v. Dydek, 192 Pa.Super. 550, 561, 162 A.2d 70, 76 (1960); 33 P.S. § 2. Parole evidence is, therefore, admissible to show the circumstances under which a resulting trust arose. Geyer v. Thomas, 364 Pa. 242, 243, 72 A.2d 89, 90 (1950); Potoczny v. Dydek, supra, 192 Pa.Super. at 561, 162 A.2d at 76. See also McHenry v. Stapleton, 443 Pa. 186, 190, 278 A.2d 892, 894 (1971). “ In order to establish, by oral testimony, a resulting trust in real estate against the person holding the legal title the evidence must be ‘clear, explicit and unequivocal’ or, as it has been otherwise stated, ‘clear, precise and unequivocal’ or ‘clear, precise and convincing and satisfactory’ or ‘clear, precise and indubitable’ ” Geyer v. Thomas, supra, 364 Pa. at 243, 72 A.2d at 90 quoting Wosche v. Kraning, 353 Pa. 481, 483, 46 A.2d 220, 222 (1946). Accord In Re Irrevocable Inter Vivos Trust Agmt of Hanley, 307 Pa.Super. 153, 170, 452 A.2d 1360, 1369 (1982) aff’d. sub nom. Siebert v. Bird, 503 Pa. 119, 468 A.2d 1093 (1983); Lapayowker v. Lincoln College Preparatory School, 386 Pa. 167, 170, 125 A.2d 451, 454 (1956); Grubb v. Delathauwer, 274 Pa.Super. 511, 516, 418 A.2d 523, 526 (1980); Potoczny v. Dydek, supra 192 Pa.Super. at 561, 162 A.2d at 76.

The testimony of all parties to the instant case was in agreement that Leonard intended to transfer only bare legal title to Karl at the time he executed the deed to the realty. Karl, moreover, executed a document attesting to the fact that he held title to the realty subject to a trust for the benefit of Leonard. Such evidence was clearly sufficient to establish a resulting trust in favor of Leonard or his estate. “The general principles involving resulting trusts are set forth in the Restatement (Second) of Trust (1959). Section 404 states: ‘A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein, unless the inference is rebutted or the beneficial interest is otherwise effectively disposed of.’ ” Yuhas v. Schmidt, supra 434 Pa. at 456-458, 258 A.2d at 621-622. Accord: In re Estate of Summers, supra 424 Pa. at 199, 226 A.2d at 199; Policarpo v. Policarpo, 410 Pa. 543, 546, 189 A.2d 171, 173 (1963).

Appellants sought to establish that the “beneficial interest [was] otherwise effectively disposed of” by oral evidence of Leonard’s intent at the time of the execution of the deed that the property would ultimately pass to his children. The Chancellor found that the evidence offered to establish such intent was so ambiguous and conflicting as to prevent any determination of Leonard’s intent concerning the ultimate disposition of the realty. We agree. Moreover, while parole evidence concerning the circumstances surrounding the execution of a deed is admissible to challenge the legal title and establish a resulting trust, such parole evidence cannot be the basis for an oral express trust which would be violative of the Statute of Frauds. The Chancellor, therefore, properly declared the realty to be subject to a resulting trust in favor of the estate of Leonard. See In Re Estate of Smith, 435 Pa. 258, 262, 256 A.2d 130, 132 (1969).

Decree affirmed.

      . D. Arlene Blinzler, Mary J. Fowler, Nancy Galford and Marcellus W. Haupt were joined as additional defendants by the defendant.

      . The Act of April 22, 1856, P.L. 532, § 4, 33 P.S. § 2 provides:
      § 2. Declarations of trusts and grants thereof to be in writing
      All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void: Provided, That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by implication or construction of law, or be transferred or extinguished by act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as if this act had not been passed.

      . In order to impose a resulting trust upon the res, the Chancellor need not find fraud, undue influence, duress, mistake, confidential relationship or unjust enrichment which are required in order to impose a constructive trust upon the property. See and compare: Huber v. Wagner, supra 284 Pa.Super. at 137, 425 A.2d at 458 (1981); Kohr v. Kohr, 271 Pa.Super. 321, 327, 329, 413 A.2d 687, 690-691 (1979); Moreland v. Metrovich, 249 Pa.Super. 88, 94, 375 A.2d 772, 775 (1977); Restatement (Second) of Trusts, § 44 (1959).

      . This rule is subject to the exception, creditors, not applicable to the instant case, that where the conveyance was for the purpose of defrauding no resulting trust arises. See In Re Estate of Summers, supra, 424 Pa. at 199, 226 A.2d at 199; Policarpo v. Policarpo, supra, 410 Pa. at 546, 189 A.2d at 172.

      . While not dispositive of the issue, we note that all parties agree that the initial and primary intent of Leonard in deeding the property to Karl subject to the oral trust was to provide for Leonard’s care and maintenance. It was for this very purpose that Leonard sought to have Karl deed the property to Nancy in exchange for her promise to leave her employment and care for Leonard.


author: HOFFMAN, Judge:

text:
    478 A.2d 1334
    COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. ALLOUWILL REALTY CORPORATION, INC., a Pennsylvania Corporation and Godwin Heck, Jr., and Anita Heck, Trading and doing business as Maxim’s Novelty Shop, Appellants. COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. RADELLE INVESTMENT COMPANY and Godwin C. Heck, Jr., Trading and doing business as Sweden Adult Book Store, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed June 29, 1984.

      Malcolm M. Limongelli, Wilkes-Barre, for appellants.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Lewis, appellee.
    Before WICKERSHAM, OLSZEWSKI, and HOFFMAN, JJ.
   HOFFMAN, Judge:

These appeals are from an injunction order padlocking two adult bookstores as public nuisances pursuant to 68 P.S. §§ 467-73. Because we find appellants’ claims merit-less, we affirm the order.

On July 29, 1982, Richard A. Lewis, District Attorney for Dauphin County, filed complaints in equity against Allou-will Realty Corp., Inc., and Anita Heck, t/d/b/a Maxim’s Novelty Shop, and against Radelle Investment Co. and Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store, to abate the use of the premises at 21 North Second Street, Harrisburg, and at 5 North Second Street, Harrisburg, respectively, as common nuisances. On August 24, 1982, the first complaint was amended to add Godwin C. Heck, Jr., as a defendant. The defendants filed separate preliminary objections on August 17-19, 1982. On August 30, 1982, after denying the preliminary objections, a motion for severance and a request for a discovery continuance, the lower court allowed the Commonwealth to begin presenting its case even though the defendants had not yet filed answers, stating that it would render its decision only after answers were filed and the defendants presented their case. The defendants filed their answers on September 10, 1982, and, on October 1, 1982, the trial concluded. On the same day, after making oral findings of fact and conclusions of law, the lower court ordered the county sheriff to padlock both premises for a one-year period. The sheriff was specifically directed to padlock only the portion of the premises used for the adult bookstores and to make arrangements with the store owners to allow them to remove any and all merchandise located within the stores. On October 4, copies of the order were served upon the defendants and posted, and the two bookstores were padlocked and chained. On October 29, 1982, these appeals were filed by Godwin C. Heck, Jr., and Anita Heck, t/d/b/a Maxim’s Novelty Shop, and by Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store.

Initially, we find the instant appeals properly before us despite appellants’ failure to file exceptions. Pa.R.A.P. 311(a)(4) permits an appeal to be filed as of right from an order granting an injunction. See Pa.R.A.P. 311(a); Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa.Superior Ct. 420, 422 n. 1, 449 A.2d 1389, 1390 n. 1 (1982); Agra Enterprises, Inc. v. Brunozzi, 302 Pa.Superior Ct. 166, 169, 448 A.2d 579, 581 (1982).

A common nuisance is statutorily defined as “[a]ny building, or part of a building, used for the purpose of fornication, lewdness, assignation, and/or prostitution[.]” Act of June 23, 1931, P.L. 1178, No. 319, § 1, 68 P.S. § 467. An action to enjoin a public nuisance, as defined, may be brought in the name of the Commonwealth by the district attorney of the concerned county. Id. § 469. Upon finding the material allegations of the complaint to be true, the court may order that the offending building (or part thereof) not be occupied or used for any purpose for one year. Id. § 470. Our Supreme Court has construed § 467 to “proscribe] only the use of a building for the purpose of engaging in illicit sexual conduct." Commonwealth v. MacDonald, 464 Pa. 435, 461, 347 A.2d 290, 304 (1975), cert. denied, 429 U.S. 816, 50 L.Ed.2d 75, 97 S.Ct. 57 (1976) (emphasis added). In the instant case, the lower court orally made the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Both Maxim’s and Sweden Adult Bookstores sell a variety of adult-oriented material, including films and magazines depicting explicit sexual conduct between heterosexuals, homosexuals, lesbians and sexual acts between humans and animals.

In addition to the magazines and films offered for sale, both stores offer and display sexual paraphernalia and artificial sexual devices.

2. Both Maxim’s and Sweden have, in addition to the areas where the films, magazines and sexual devices are displayed and offered for sale, a separate portion where booths are contained; approximately twenty booths in each place.

In these booths are shown films depicting explicit sexual conduct of the type previously described.

3. In a large number of booths showing the explicit sexual films, there are what are known as “glory holes” in the walls separating one booth from the other.

These holes have been described as approximately twelve inches by twelve inches and begin at the location slightly less than two feet off the floor.

4. In the month of January, 1982, officers from the Harrisburg Police Department were in both stores approximately four to six times and were able to plainly see men masturbating in the booths in both stores.

5. Officer Linden B. Gates of the Harrisburg Police Department, arrested two separate individuals; one in Maxim’s and one in Sweden after individuals in a nonsolicited fashion, reached through the “glory hole” and indecently assaulted Officer Gates.

6. The interior of the store was unkept and unsanitary, with urine and semen stains throughout the booths and with the restroom facilities lacking any doors.

7. During the month of July, 1982, Officer Woodring of the Harrisburg Police Department returned to both stores and again observed acts of masturbation and was indecently assaulted.

8. A Mr. Sherman W. Buchanan testified that both establishments were centers for sexual activity and that the purpose of the “glory holes” is for sexual conduct from oral intercourse to masturbation to anal intercourse.

Mr. Buchanan also testified that the establishments are not strictly centers for homosexuals, but are also patronized by heterosexual males.

9. The acts of masturbation performed by male patrons within the store and observed by the police are a violation of Section 3127 of the Crimes Code, indecent exposure, which is a misdemeanor.

10. Harrisburg police officers were indecently touched and assaulted within Maxim’s Novelty Shop and the Sweden Adult Bookstore, such conduct is a violation of Section 3126, indecent assault, of the Crimes Code, a misdemeanor in Pennsylvania.

11. Harrisburg police officers observed and encountered male patrons of the Sweden Adult Bookstore who solicited them for sexual favor or sexual hire for prostitution, a violation of Section 5902, a misdemeanor in Pennsylvania.

12. In a fifteen-day period, from January 13 through January 28, approximately fifteen incidents of prostitution, indecent assault, indecent exposure occurred in both the Sweden Bookstore and Maxim’s Novelty Shop.

From these findings of fact, we make the following Conclusions of Law.

CONCLUSIONS OF LAW

1. The Act of June 23, 1931, M.L. 1178, 68 Purden’s 467, et seq., provides that any building or part of a building used for the purposes of fornication, lewdness assignation and/or prostitution is hereby declared to be a common nuisance.

2. The establishments known as Maxim’s Novelty Shop and the Sweden Adult Bookstore, Maxim’s Novelty Shop is at 32 North Second Street and the Sweden Adult Bookstore at 5 North Second Street, have been and continue to be common nuisances as defined in the above statute.

By virtue of the lewd conduct occurring therein, including, but not restricted to criminal acts of open lewdness, prostitution, indecent exposure and indecent assaults.

Now the term “common nuisance” may seem somewhat inappropriate to describe these establishments and the activities that are conducted therein, but this concept of a legal nuisance reaches back into the beginnings of our common law.

In one of the few appelate [sic] decisions involving, in part, the Act of 1931, our Supreme Court, in only a few years ago in Commonwealth versus MacDonald, a 1975 decision, 464 PA 435, quoted, with approval, a definition of Dean Prosser on a public nuisance, part of, which I think is quite pertinent and they say “No better definition of a public nuisance has been suggested than that of an act of ommission [sic] ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.’ The term comprehends a miscellaneous and diversified group of common offenses, based on some interference with the interest of community or the comfort or convenience of the general public. It includes interference with the public health, as in the case of a hog pen, the keeping of deseased [sic] animals or a malarial pond...” And then it goes on to say “with public morals as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, et cetera.”

There are two illustrations in the definition which might, with a little analogizing, fit Maxim’s and Sweden, “the keeping of a hog pen and malarial” just as the nauseous odors of a malarial pond breeds desease [sic] and pestulence [sic], so those establishments, by their very construction, that these “glory holes,” encourage and spread illegal conduct in a public store.

There should be no place in the center of the capital city of this Commonwealth for “hog pens” or “malarial ponds” or for Maxim’s Novelty Shop or the Sweden Adult Bookstore.

In accordance with Section 470 of the Act of 1931, I am ordering the Sheriff of Dauphin County to immediately padlock both premises for a period of one year.

I recognize that the owners of the building are but nominal plaintiffs and only the portion used to conduct these stores is to be so padlocked and if, at some time, they demonstrate to the Court that the premises are going to be used for proper activities, why certainly, an adjustment may be made.

I also realize that the owner of the stores may well wish to remove from the premises, his merchandize, [sic] material and we suggest that he make arrangements to do so with the sheriff. You may adjourn court.

(N.T. October 1, 1982, at 54-59). There is competent evidence in the record supporting the lower court’s conclusion that the two premises in question were being used for the purposes of engaging in illegal sexual conduct. Therefore, contrary to appellants’ assertion, we find that the injunction order was permissible under the terms of the statute as construed by our Supreme Court. Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), cited by appellants, held only that the State, in the exercise of its police powers, could not prohibit consenting adults from privately engaging in voluntary deviate sexual intercourse. The Bonadio Court, however, recognized the authority of the State to regulate open lewdness, indecent exposure, involuntary deviate sexual intercourse, and indecent assault.

Appellants also challenge the constitutionality of 68 P.S. § 467, arguing that the statutory provision is void for vagueness and constitutes a prior restraint in violation of the first and fourteenth amendments to the Federal Constitution and article I, § 7 of the Pennsylvania Constitution. These arguments have no merit. In Commonwealth v. MacDonald, supra, our Supreme Court, by construing § 467 to encompass only illegal sexual conduct, expressly obviated any vagueness problems. The Court also rejected the argument that the term “lewd” was an synonym for “obscene” and stated that the statute does not forbid the use of a building to exhibit obscene materials. 464 Pa. 435, 460-61, 347 A.2d 290, 303-304. Therefore, under MacDonald, we believe that the constitutional problems of vagueness and prior restraint do not arise in the Commonwealth’s instant application of 68 P.S. §§ 467-73. Contrary to appellants’ arguments, whether the materials sold in Maxim’s Novelty Shop and Sweden Adult Book Store were obscene is not at issue in this case as the illicit sexual activities were the basis for the injunctions. We recognize that the injunction may have had an incidental effect on the dissemination of the printed materials sold in these two adult bookstores; however, we also note that because the order allows appellants to remove their merchandise from the stores and does not prohibit their dissemination, it is conceivable that appellants could continue to sell their books and magazines elsewhere.

Appellants argue finally that the lower court should have closed off only the booth area of the bookstores rather than the entire premises because all of the alleged illegal activity occurred in the booth area. We disagree. The lower court’s analogizing the entire bookstore premises to a “hog pen” and “malarial pond” is apt. See N.T. October 1, 1982, at 58. Although the booth area or “peep show” area is apparently separated from the front sales area in both stores, see N.T. August 30, 1982 at 23-29, we conclude from the record that the booth area was an integral part of the bookstores. Sexual paraphernalia was sold in the booth area as well as in the front of the store. (N.T. August 30, 1982 at 25). The general condition of the entire premises was unsanitary with “a foul odor throughout the store”. (N.T. August 30, 1982 at 33, 69). Approximately ten-to-twenty people loitered in the booth area for the purposes of engaging in sexual contact and were not asked to leave by the store management. (N.T. August 30, 1982 at 75; October 1, 1982 at 31). Adult bookstores in Harrisburg, including those in the instant case, were generally known to be places where people could go to have “impersonal sexual relations”. (N.T. August 30, 1982 at 119-21). Under these circumstances, we find it reasonable to infer that the booths (with their “glory holes”) were the main attraction of the adult bookstores and had been purposefully set up by the owners to be so and that the whole atmosphere and attitude of these establishments encouraged and fostered the illicit sexual occurrences.

Accordingly, having rejected appellants’ arguments, we hold that the lower court did not abuse its discretion in entering the October 1, 1982 injunction order. See Nesham- iny Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, supra, 303 Pa.Superior Ct. at 422, 449 A.2d at 1390 (abuse of discretion standard for appeals from permanent injunction orders).

Affirmed.

      . On December 8, 1982, appellants filed a statement of matters complained of on appeal. On March 15, 1983, the lower court filed a Pa.R.A.P. 1925 opinion. On August 4, 1983, this Court, per curiam, denied the Commonwealth’s motion to quash the appeal without prejudice to renew the jurisdictional argument before the panel.

      . In contrast, in Ranch v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976), and Zimmerman v. Philjon, Inc., 470 Pa. 409, 368 A.2d 694 (1977), the Court struck down injunctions prohibiting the exhibiting or selling of obscene materials at the adult bookstores involved in those cases pursuant to the Pennsylvania obscenity statute, 18 Pa.C.S.A. § 5903(h). Those cases are clearly distinguishable from the instant injunction which temporarily shut down premises used for the purposes of engaging in illicit sexual conduct pursuant to a valid public nuisance statute, 68 P.S. §§ 467-73, and did not prohibit the dissemination of the printed materials sold on the premises.

      . We note, parenthetically, our incredulity that appellants could be ignorant of the illicit activities going on in their public bookstores.

      . Appellants also raised some procedural challenges to the lower court proceedings. However, those claims were not adequately briefed and appellants have given us no reason to reverse on those grounds.


text:
    478 A.2d 1339
    Donald L. ELLIS, Jr. and Jeanni E. Ellis, Individually and as Guardians of the Minor Donald L. Ellis, III, Appellants, v. Alfred J. SHERMAN, M.D., John G. Goedecke, Robert E. Stevenson, M.D., Donald F. Post, M.D., Sherman Associates, Paul A. Wengert, M.D., James E. Jones, M.D. and James Daly, M.D.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed June 29, 1984.

      Charles M. Tobin, Silver Springs, for appellants.
    James W. Evans, Harrisburg, for Sherman, M.D., appel-lee.
    Linda S. Porr, Harrisburg, for Wengert, M.D., appellee.
    C. Kent Price, Harrisburg, for Daly, M.D., appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal is whether the lower court correctly dismissed the infant-appellant’s cause of action for “wrongful life”. We conclude that the lower court properly held that a “wrongful life” action is not legally cognizable in Pennsylvania. Accordingly, we affirm.

The record in the instant case discloses the following facts. Throughout his childhood and adolescence, appellant Donald Ellis, Jr., was treated by appellee-pediatricians,

Drs. James Jones and James Daly, for a recurrent skin condition, manifested by minor skin discolorations and occasional lesions. Appellant claims that he was never informed of the true nature of his disease. In the summer of 1978, appellee-surgeon, Dr. Paul Wengert, removed several skin lesions from appellant and informed him that the lesions were not malignant. Subsequently, in 1979, appellant Jean-ni Ellis consulted with appellee-obstetrician, Dr. Alfred Sherman, prior to and after conceiving a child. During the course of an early consultation, when Mrs. Ellis was asked about her family’s medical history, she indicated that her husband suffered from a skin disease. Dr. Sherman probed no further into this comment. In fact, according to the lower court, “Dr. Sherman indicated that Mr. Ellis’ disease would have no bearing on the health of plaintiff’s future child.” (Lower Court Opinion at 3). In April, 1980, Mrs. Ellis gave birth to Donald Ellis III (Donnie). At approximately five months of age, Donnie suffered from seizures that were subsequently diagnosed as manifestations of Von Recklinghausen’s Disease. Because of his disorder, Donnie suffers from severe mental and physical disabilities. Appellants, who after Donnie’s diagnosis learned that Mr. Ellis is a carrier of Von Recklinghausen’s Disease, assert that had they known the nature and possible genetic consequences of Mr. Ellis’ condition, they would have employed all precautions to avoid conceiving any children.

On April 14, 1982, appellants filed a complaint in trespass and assumpsit raising five distinct causes of action — four on behalf of themselves and one on Donnie’s behalf. In the first count, appellants claimed that all of the several appel-lees negligently failed to exercise the requisite duty of care in their treatment of and consultation with appellants. The second and third causes of action alleged that Drs. Jones, Daly and Wengert had breached their respective contracts with appellants. In the fourth count, appellants averred that Dr. Sherman had breached his contract with them. Finally, the fifth cause of action — and the only one before us on appeal — sought recovery of damages for Donnie’s “wrongful life”. Appellees raised preliminary objections in the nature of a demurrer to all five causes of action. The lower court permitted counts one and four to stand, but dismissed counts two, three and five. As previously mentioned, appellants have asked us to review only the lower court’s dismissal of Donnie’s “wrongful life” claim.

Appellants contend, in effect, that (1) Pennsylvania appellate court decisions do not necessarily preclude an injured infant’s “wrongful life” action and (2) notwithstanding the unfavorable view expressed in recent Pennsylvania court pronouncements, we should follow the lead of other jurisdictions which, appellants assert, have upheld “wrongful life” claims as legally cognizable causes of action. Upon thorough review of the law in this Commonwealth and in other jurisdictions, we disagree with appellants’ assertions.

In Speck v. Finegold, 268 Pa.Superior Ct. 342, 408 A.2d 496 (1979) (en banc), aff’d in part, rev’d and remanded in part, 497 Pa. 77, 439 A.2d 110 (1981), the Pennsylvania Supreme and Superior Courts first reviewed the cognizability of a claim seeking recovery of damages for “wrongful life”. The adult plaintiffs in Speck, already the parents of two children born with neurofibromatosis, which afflicted Mr. Speck as well, tried to avoid conceiving any more children. Mr. Speck underwent a vasectomy which, when the couple conceived a child, proved unsuccessful. Mrs. Speck then underwent an abortion. This too proved futile as evidenced by the birth of the infant-plaintiff approximately five months later. This child suffered from the same disorder that afflicted her father and older siblings. The Specks brought suit in trespass on behalf of themselves and also brought a “wrongful life” claim on behalf of their daughter, claiming that she would have been better off never having been born. The Superior Court majority began its discussion by noting:

First, there is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being____ Second, it is not a matter of taking into consideration the various and convoluted degrees of the inperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her non-existent.

Speck v. Finegold, 268 Pa.Superior Ct. at 364-65, 408 A.2d at 508. Judge Spaeth, joining the majority in this portion of its opinion, artfully disclosed the fundamental premise of a “wrongful life” claim: “[I]n essence [the child] claims that non-existence — never being born — would have been preferable to existence in her diseased state. But no one is capable of assessing such a claim____ The value of non-existence [is not within the experience or imagination of most people].” Id., 268 Pa.Superior Ct. at 372, 408 A.2d at 512 (SPAETH, J. concurring and dissenting). The majority concluded that:

Thus, a cause of action brought on behalf of an infant seeking recovery for “wrongful life” on grounds she should not have been born demands a calculation of damages dependent on a comparison between Hobson’s choice of life in an impaired state and non-existence.

Id., 268 Pa.Superior Ct. at 365, 408 A.2d at 508. Hence, this Court found that an action seeking recovery for “wrongful life” is not cognizable in law.

The Supreme Court, upon review, split its votes on the question of the viability of a “wrongful life” action. Justice Flaherty, with whom two Justices joined, opined that “where an existing infant experiences suffering and financial expense as a result of another’s negligence, that suffering and expense should be recompensed.” Speck v. Finegold, 497 Pa. at 85, 439 A.2d at 121. However, because the three remaining Justices agreed with the Superior Court that a child cannot legally be recompensed for an alleged “wrongful life”, thus resulting in an evenly divided court, we are bound to follow our Court’s en banc opinion. See Stribling v. de Quevedo, 288 Pa. Superior Ct. 436, 432 A.2d 239 (1980) (following unsuccessful tubal ligation, plaintiff gave birth to child born with dextrocardia; court relied on Speck v. Finegold to hold that child’s “wrongful life” action was not cognizable in law). See generally Speck v. Finegold, 268 Pa.Superior Ct. 342, 408 A.2d 496 (1979) (en banc), for a discussion of other jurisdictions’ rejection of “wrongful life” claims. See also Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967).

Accordingly, faced with the almost imponderable question of whether non-existence is preferable to existence in an impaired state, and the inability either to answer the question or to ascertain the appropriate calculation of damages, we must hold that Donnie’s cause of action for “wrongful life” is not cognizable in law. Moreover, it is clear that the leading Pennsylvania appellate court opinion decisively rejects such a cause of action.

Nonetheless, appellants would have us consider and accept the positions of the California and Washington Supreme Courts which, according to appellants, have clearly recognized actions for “wrongful life” on behalf of minor children. In Turpin v. Sortini, 119 Cal.App.3d 690, 174 Cal.Rptr. 128 (1981), rev’d and remanded, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954 (1982), the plaintiffs’ eldest daughter had been incorrectly diagnosed as a hearing child when, in fact, she suffered from complete deafness. When a second child was born with the same hearing deficiency, the plaintiffs brought a “wrongful life” action on behalf of the second child claiming both general damages and special damages for extraordinary medical and educational expenses. The California Supreme Court determined that

it is simply impossible to determine in any rational or reasoned fashion whether the plaintiff has in fact suffered an injury in being born impaired rather than not being born and ... even if it were possible to overcome the first hurdle, it would be impossible to assess general damages in any fair, nonspeculative manner.

31 Cal.3d at 235, 182 Cal.Rptr. at 346, 643 P.2d at 963. However, the California court did permit the child to recover special damages for any extraordinary medical and educational expenses necessitated by her impairment.

In Harbeson v. Parke-Davis, 98 Wash.2d 460, 656 P.2d 483 (1983), the infant-plaintiff’s mother, an epileptic, took the drug Dilantin while pregnant and gave birth to two children with “fetal hydantoin syndrome”. Alleging that Air Force doctors had committed negligence by failing to conduct a literature search on the effect of Dilantin on pregnancy and fetal development, the parents brought suit for, inter alia, recovery for the child’s “wrongful life”. The Washington Supreme Court held that

a child may maintain an action for wrongful life to recover the extraordinary expenses to be incurred during the child’s lifetime, as a result of the child’s congenital defect. Of course, the costs of such care for the child’s minority may be recovered only once. If the parents recover such costs for the child’s minority in a wrongful birth action, the child will be limited to the costs to be incurred during her majority.

Id. at 479, 656 P.2d at 495. It is unfortunate that the Washington court chose to characterize the particular cause of action it recognized as one for “wrongful life”. In separating the cause of action from its label, and in considering the context of the Washington court’s pronouncement, we are convinced of the inaccuracy of appellants’ assertion that a “wrongful life action”, such as the one brought on Donnie’s behalf, has been found legally cognizable. For, in effect, the Washington Court, like California, in permitting a claim for extraordinary damages, has simply extended the recovery available to injured parents in a wrongful birth action. Allowing the child recovery for medical and educational expenses occurring after its minority does not assign liability based on a finding that non-existence in a given case would have been preferable to an impaired existence. Rather, similar to a wrongful birth action, such recovery compensates the parents for the extraordinary costs associated with the child’s condition. This distinction leaves the abstract concept of non-existence to philosophers and theologians who are better able to hypoth-ecate as to its benefits, and removes the question from the legal realm. We believe that this distinction, although not embraced by all, facilitates our understanding of what the Washington and California courts have permitted in the area of “wrongful life”.

Based on the foregoing analysis, we believe that in Pennsylvania, regardless of what damages are sought on behalf of the infant-plaintiff, a “wrongful life” action is not legally cognizable. Accordingly, we affirm the lower court’s order dismissing appellant’s fifth cause of action.

Affirmed.

      . The plaintiffs-appellants in this matter are Donald and Jeanni Ellis and their infant son, Donald Ellis III. The defendants-appellees are various physicians who have treated appellants.

      . Von Recklinghausen’s Disease, commonly known as neurofibroma-tosis, is a hereditary neurologic disorder which, in its mild form, is manifested by “cafe-au-lait” colored spots on the skin, and in more severe strains, is manifested by slow-growing neurofibromas.

      . We maintain jurisdiction over this appeal pursuant to Praisner v. Stocker, 313 Pa.Superior Ct. 332, 459 A.2d 1255 (1983). Our jurisdiction is also consistent with that taken in Speck v. Finegold, 268 Pa.Superior Ct. 342, 408 A.2d 496 (1979) (en banc), aff’d in part, rev’d and remanded in part, 497 Pa. 77, 439 A.2d 110 (1981).

      . Hereafter, any citation to Speck v. Feingold, will be a citation to either the Supreme Court or Superior Court opinion.

      . In Turpin v. Sortini, supra, Justice Mosk, joined by Chief Justice Bird, dissented and noted that “[a]n order is internally inconsistent which permits a child to recover special damages for a so-called wrongful life action but denies all general damages for the very same tort.” Turpin v. Sortini, supra, 31 Cal.3d at 240, 182 Cal.Rptr. at 349, 643 P.2d at 966 (MOSK, J. dissenting).

      . We note that appellants, by their own description, did not specifically request recovery for special damages associated with educational and medical expenses in Donnie’s “wrongful life” claim. On Donnie’s behalf, appellants claimed damages from the defendants
      for the diminished childhood that he will be required to endure as a result of his mental and physical condition. He has also suffered extensive pecuniary losses incident to his birth in an impaired condition, including the income that he could have earned subsequent to his majority as a fully functional and productive member of society. He further claims damages for the physical pain and suffering, and the mental and emotional anguish that he will suffer for the duration of his lifetime, as the direct and proximate result of the Defendants’ wrongful omissions and acts.
      (Appellants’ Brief at xv).

      . We disagree with appellants’ reliance on Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Roe v. Wade and its progeny do not require that states provide for recovery in or recognition of a cause of action for "wrongful life". As Justice Nix wrote in his opinion in Speck v. Finegold: "[T]here can be no question that refusal to create new tort liability does not constitute governmental interference with the constitutionally protected access to abortion. The right to seek an abortion is neither predicated upon the existence of a negligence cause of action, nor is it deterred by the absence of such a cause of action." 497 Pa. at 97, 439 A.2d at 120.


author: WICKERSHAM, Judge:

text:
    478 A.2d 1344
    Margaret A. PERRI v. BROAD STREET HOSPITAL, Eugene Spitz, M.D., and Max Karpin, M.D. Appeal of: BROAD STREET HOSPITAL and Eugene Spitz, M.D.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1984.
    Filed July 6, 1984.

      James C. Stroud, Philadelphia, for appellants.
    Joseph Feldman, Philadelphia, for appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting appellee’s petition to remove a judgment of non pros.

On September 9, 1981, Margaret Perri, appellee herein, filed a writ of summons in trespass in the Court of Common Pleas of Philadelphia County. Served as defendants were Broad Street Hospital, Eugene Spitz, M.D., appellants herein, and Max Karpin, M.D. On November 4, 1981, appellants filed and served on appellee a rule to file a complaint. Shortly thereafter, counsel for appellee telephoned counsel for appellants and requested and was granted an extension of time to December 31, 1981 to file the complaint. On January 8, 1982, when the complaint had still not been filed, a judgment of non pros was entered against appellee. Counsel for appellee received notice of the entry of judgment on the following day.

On January 14, 1982, appellee filed a petition to open the judgment of non pros, alleging that her counsel had been out of the country from November 17, 1981 until January 4, 1982 in celebration of his eightieth birthday. Upon his return, counsel was involved in an unrelated trial and was unable to file the complaint in appellee’s case, even though it was allegedly prepared and ready to be filed when he received notice of the judgment entered against appellee. The petition to open alleged that appellee had a meritorious case against all the defendants because she had sustained permanent injuries and had incurred extensive medical and hospital expenses, presumably at their hands. Appellants filed an answer to the petition admitting the chronology of events and extension of time to December 31, 1981, but denying or demanding proof of the reason the complaint was not filed on time and of whether a meritorious case existed.

On February 11, 1982, the lower court ordered appellee to take depositions, pursuant to Pa.R.C.P. No. 209, on all disputed factual issues, including the reasons appellee failed to file her complaint in a timely manner. No such depositions were ever taken. On July 15, 1982, the lower court entered an order granting the petition to remove the judgment of non pros, from which order appellants timely filed this appeal.

Appellants raise two questions before us:

I. Did the court below commit an error of law by opening the judgment of non pros where [appellee] failed to (1) prove the reason for her failure to file the complaint, reasonably explained or excused, and failed to (2) allege facts constituting grounds for a cause of action?
II. Did [appellants], after having properly served counsel for [appellee] with the rule to file complaint within twenty (20) days upon penalty of non pros, pursuant to Pa.R.C.P. 1037(a), have any duty under Pa.R.C.P. 237.1 which applies only to default judgments?

Brief for Appellants at 3.

We agree with appellants that they had no duty under Pa.R.C.P. No. 237.1 to give written notice to appellee before the judgment of non pros was entered. By its very title and wording, Rule 237.1 applies only to default judgments. The Explanatory Note following the rule explicitly states that notice is not required before entry of a judgment of non pros.

A familiar illustration of a situation where notice is not required is a judgment of non pros under Rule 1037(a). [W]here an action is commenced by a writ of summons without a complaint, a defendant by praecipe may enter a rule as of course upon the plaintiff to file a complaint within twenty days after service of the rule or suffer judgment of non pros. Upon failure to file the complaint within the time fixed, the defendant can proceed by praecipe to have a judgment of non pros entered by the prothonotary. Here, a further notice of intent to enter the default would be unjustified. The plaintiff has already received a twenty-day notice.

This is exactly the situation in the instant case. Appellants filed a praecipe for a rule upon appellee to file a complaint within twenty days of the date of service upon penalty of non pros. Therefore, notice under Rule 237.1 would have been redundant and unnecessary. We also note that Rule 237.1 provides that where there has been a written extension of time given to a specific date and a default occurs thereafter, even judgment by default may be entered without prior notice under Rule 237.1.

Therefore, the lower court’s reliance upon Pa.R.C.P. No. 237.1 in the instant case was misplaced. It is well settled, however, that an appellate court may affirm the action of a lower court on a different rationale than that advanced by that lower court. Commonwealth v. Fried, 327 Pa.Super. 234, 475 A.2d 773 (1984); Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983). Thus, we now examine whether we can affirm the opening of the judgment of non pros on any other ground.

“ ‘A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court’s discretion. An appellate court may not reverse the lower court’s ruling unless an abuse of discretion is clearly evident.’ ” Goldstein v. Graduate Hospital of the University of Pennsylvania, 441 Pa. 179, 182, 272 A.2d 472, 474 (1971), quoting from Mazar v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962). The criteria for opening a judgment of non pros are: “(1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused, and (3) the facts constituting grounds for a cause of action be alleged.” Goldstein, supra 441 Pa. at 182, 272 A.2d at 473-74; Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298, 299 (1966); Kennedy v. Board of Supervisors of Warminster Township, 243 Pa.Super. 46, 52, 364 A.2d 442, 445 (1976). Each one of these requirements must be satisfied in order for the opening of a judgment of non pros to be a proper exercise of lower court discretion.

Thompson v. Hahn Motors, Inc., 269 Pa.Super. 271, 273-74, 409 A.2d 884, 885 (1979). See also, Walker v. Pugliese, 317 Pa.Super. 595, 464 A.2d 482 (1983).

When we consider the three criteria that must be satisfied before a judgment of non pros may be opened, we find ourselves unable to affirm the action of the lower court on this ground either. Appellants admit that the first requirement, timely filing of the petition to open, was met by appellee in this case. Only six days passed between the entry of judgment of non pros and appellee’s petition to open. We agree that this is prompt and timely.

The second requirement, a reasonable explanation or excuse for the non-filing of the complaint, is not so easily met. Our court has held that if counsel’s mistake, oversight, or neglect is to be a reason to vacate a judgment of non pros, that mistake, oversight, or neglect must be reasonably explained. Corcoran v. Florentino, 277 Pa.Super. 256, 419 A.2d 759 (1980); Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331 (1976). Cf. St. Joe Paper Co. v. Marc Box Co., Inc., 260 Pa.Super. 515, 394 A.2d 1045 (1978) (mere confusion, mistake, or inadvertence of counsel, without more, or demands on time of counsel are not patently reasonable excuses for default, and failure to open a default judgment based upon those explanations is not an abuse of discretion). In appellee’s petition to open, she alleged that her attorney was out of the country until January 4, 1982 and was prevented from thereafter filing the complaint because of the need to prepare for an immediate, unrelated trial. Appellants’ answer to the petition admitted only that appellee’s counsel told them he would be out of the country for several weeks beginning in mid-November 1981, and would file a complaint by December 31, 1981. Appellants denied knowledge of when appellee’s counsel did, in fact, return, whether a complaint was drawn and ready to be filed, and whether appellee’s counsel was involved in another trial.

The lower court judge, when confronted with a petition and answer raising issues of fact, ordered appellee, as the moving party, “to take depositions on all disputed issues of fact, pursuant to Pa.Rule of Civil Procedure 209 including the reasons [appellee] failed to file her complaint in a timely manner.” R.R. at 23a. Appellee failed to take any depositions. Therefore, pursuant to Rule 209, the court considered all well-pleaded answers to the petition as admitted. Thus, the court concluded that it could not accept as an excuse the allegation by appellee that her counsel was out of the country on December 31, 1981, the date he had agreed to file the complaint.

Even if the court could have accepted appellee’s excuse for the default, and determined that it was a reasonable excuse, the third requirement for opening a judgment of non pros, allegation of the facts constituting grounds for a cause of action, was clearly not met. Instead of offering facts that would constitute grounds for a cause of action, appellee merely stated in her petition to open that she had a meritorious case against appellants and Dr. Karpin in that “The injuries sustained by [appellee] will be permanent” and “[appellee] has incurred a great deal of medical and [hospital] expenses.” Ignoring the likelihood that this bald averment is not a sufficient allegation of facts to create grounds for a cause of action, we note that there is no allegation of negligence by appellants anywhere in the petition. We cannot determine from the petition why or on what basis appellants were being sued by appellee.

In granting appellee’s petition to open the judgment, the lower court mistakenly relied on the absence of notice to appellee under Pa.R.C.P. No. 237.1 and apparently did not consider whether all three of the above criteria were met. The opinion of the court does not reveal any consideration of the criteria for the opening of a judgment of non pros under Goldstein v. Graduate Hospital of the University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971), except to state that the petition was promptly filed. Accordingly, we hold that the lower court abused its discretion in granting the petition to open.

The order granting appellee’s petition to open is reversed and the judgment of non pros reinstated.

      . Max Karpin, M.D. is not a party to this appeal.

      . Pa.R.C.P. No. 209 states:

        Rule 209. Duty of Petitioner to Proceed After Answer Filed
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

      . Appellants submit that the latter two issues are irrelevant in any case.

      . It appears from the record that the court ordered the taking of depositions by appellee sua sponte. On its face, Rule 209 does not seem to apply where, as here, the court itself orders depositions. However, in such a case, the spirit of the rule is that the case should be viewed as though the petitioner admitted for the purpose of argument all averments of fact responsive to the petition and properly pleaded in the answer. Cheltenham National Bank v. George B. Henne & Co., Inc., 237 Pa.Super. 311, 353 A.2d 59 (1975). This is particularly apt where the petitioner, appellee herein, does not avail herself of the opportunity to take depositions.
      The case before us is distinguishable from a series of recent cases where lower courts also entered orders based only on petitions to open and answers. See Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super. 553, 378 A.2d 1287 (1977); Instapak Corporation v. S. Weisbrod Lamp and Shade Co., Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977); Maurice Goldstein Co., Inc. v. Ralph Margolin, t/a Margo Realty, 248 Pa.Super. 162, 374 A.2d 1369 (1977). In those cases, neither party took the requisite steps under Pa.R.Civ.P. 209, but the court went ahead and decided the case anyway, treating the averments of one party or the other as conclusive. We were concerned that the court’s action was premature and remanded to allow the parties to use the procedure provided by Pa.R.Civ.P. 209. Here, the court came to a decision, treating appellee's averments as conclusive, only after it had given the Altens as petitioners ample opportunity to take depositions and argue the case. In light of this, remanding the case to allow the parties to use the procedures provided by Pa.R.Civ.P. 209 would serve no useful purpose.

        Arthurs Travel Center, Inc. v. Alten, 268 Pa.Super. 330, 334 n. 1, 408 A.2d 490, 492 n. 1 (1979).