author: MONTEMURO, Judge:

text:
    450 A.2d 655
    HALLSTROM DEVELOPMENT COMPANY, Appellant, v. Asbury W. LEE, IV; Carolyn B. Lee: H. R. Obleman; Gloria W. Obleman; Dr. Roger Hughes and Pauline L. Hughes.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed July 9, 1982.
    Reargument Denied Oct. 7, 1982.
    Petition for Allowance of Appeal Granted Nov. 30, 1982.

      Anthony S. Guido, Dubois, for appellant.
    Carl A. Belin, Jr., Clearfield, for appellees.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

Appellees, Asbury W. Lee, IV, (“Lee”), H. R. Obleman (“Obleman”) and Roger L. Hughes (“Hughes”) filed suit in equity against the Clearfield Area Housing Corporation and Clearfield County Housing Authority (“Housing Authorities”) seeking to enjoin construction of a federally financed low income housing project. In said action in equity, the appellees contended that construction of the housing project constituted a nuisance and would diminish the value of their respective residences. Although the three residence properties were owned by the entireties, the wives of the appellees, Carolyn B. Lee, Gloria W. Obleman and Pauline L. Hughes, were not named as parties in the equity action. At the close of the appellees’ testimony, the lower court on motion of the “Housing Authorities” entered a nonsuit as to the appellee “Hughes” who did not appear for trial and who never pursued his cause of action. The case proceeded as to the two remaining plaintiff-appellees, “Lee” and “Obleman,” and at the conclusion of the trial, the court entered an order enjoining the development of the project. The “Housing Authorities” appealed that order to the Commonwealth Court. In reversing the order of the lower court, the Commonwealth Court entered the following order:

The Order of the court below is reversed and the complaint and amended complaint are dismissed. Costs on appellees, H. R. Obleman and Asbury W. Lee, IV.

In footnote 3 of its opinion, the Commonwealth Court noted that the court below had granted the “Housing Authority’s” motion for a compulsory nonsuit against appellee “Hughes” at close of the appellees’ case and that he did not participate further in the litigation.

After entry of the decision by the Commonwealth Court, the “Housing Authority” filed with the Prothonotary’s Office a bill of costs in the amount of $9004.50 to which no exceptions were entered by appellees, “Lee” and “Obleman”. Those costs were never reduced to judgment. Thereafter, the “Housing Authority” assigned their rights to the costs to appellant, Hallstrom Development Company, who paid them.

The appellant thereafter instituted this action in assumpsit against all three appellees, “Lee,” “Obleman,” and “Hughes” as well as their three wives. The appellees filed preliminary objections in the nature of a demurrer to the complaint on the following grounds:

1. Costs taxed against a party in an equity action by an appellate court cannot be collected against the parties’ wives, who were not partner to the suit, in a subsequent action in assumpsit.

2. The appellate court having specifically excluded a nonsuited party, the appellee “Hughes,” from assessment of costs, those costs cannot thereafter be collected from the nonsuited party in an assumpsit action.

3. Costs cannot be assigned as they are creatures of statute and no statutory authority exists for assignment of costs before they are reduced to judgment and consequently, appellant had no standing to file the assumpsit action.

The lower court entered an order sustaining the preliminary objections and dismissing appellant’s complaint in assumpsit. Hence this appeal.

As to appellees “Lee” and “Obleman” and their wives, we reverse; as to the appellees, “Hughes” and his wife, we agree with the lower court’s decision and affirm.

The court below disposed of this matter on the authority of Blue Ridge Metal Manufacturing Co. v. Proctor, et al., 335 Pa. 354, 6 A.2d 811 (1939). This case was decided in 1939, and leans heavily upon the fact that statutory authority is necessary for the imposition of costs, and that the Rules of Equity at that time did not permit an order for costs to be rendered against a party not of record. However, Rule 1501, “Conformity to Assumpsit” became effective on July 1, 1952, and in the “Note” following that rule, the Order of the Supreme Court extending Rules 2001 to 2025, “Actions by Real Parties in Interest,” to actions at equity as well as at law is specifically mentioned. Blue Ridge, supra, therefore, cannot serve as authority for the result in the instant matter, and we will examine the statutes concerning real parties in interest and other relevant case law for disposition of the instant issues.

■ At common law costs were not recoverable by either party to the action, Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521 (1943). The right to recover costs in litigation was purely statutory, Contest of Elections of Morganroth, 346 Pa. 327, 29 A.2d 502 (1943). Costs in civil cases as a general rule follow the result of the action or proceeding, and are given in favor of the prevailing party and against the unsuccessful party. DeFulvio v. Holst, 239 Pa.Super. 66, 362 A.2d 1098 (1976).

Every litigant assumes an obligation to pay costs which may be awarded against him. Clair v. Philadelphia Storage Battery Co., 29 F.Supp. 299 (1939). However, the wives of appellees contend that as non-litigants in the equity matter, they have assumed no “obligation” to make them liable in the assumpsit action. We find, however, that as owners by the entireties of the properties used as a basis for suit, they fall into the category of persons “beneficially interested” by the suit their husbands brought, and that their presence upon the record of the instant action is sufficient to entitle the plaintiff to an answer and a trial on the merits to determine the actual liability for costs.

Former statute, P.L. 355 § 2, April 23, 1829, found at 12 P.S. § 144 and repealed effective June 27, 1978, provided that an equitable plaintiff or person for whose use or benefit or at whose insistance an action is prosecuted, whether named on the record or not, was liable to execution on a judgment for costs against the legal plaintiff, provided that where such equitable plaintiff was not named on the record, his name must be suggested on the record before execution issues.

The statute is disposed of at 42 Pa.C.S.A. 1722(a)(1), which provides that statutes “shall be suspended to the extent that they are inconsistent with the rules prescribed under this paragraph,” and provides further that the governing authority may prescribe and modify such rules only in ways that “are consistent with the Constitution of Pennsylvania and neither abridge, enlarge nor modify the substantive rights of any litigant.”

The substantive rights of litigants would obviously be modified and abridged if the person “for whose use or benefit or at whose insistence a case was brought” was no longer liable to execution on a judgment for costs. The substantive right embodied in the act of April 23, 1829, and extant in case law both before that date [Canby v. Ridgway, 1 Binn. 496 (1808), Steel v. Phoenix Insurance Co., 3 Binn. 312 (1811) ], and since [Neal v. Buffalo R. & P. Ry. Co., 103 Pa.Super. 218, 158 A. 305 (1931) ] is thus retained under 42 Pa.C.S.A. 1722(a)(i). However, this very generalized statute does not speak to the problem of the “use-plaintiff” or the “real party in interest.” As mentioned, supra, Rules 2001 to 2025 cover that area and are applicable in both law and equity.

The Rules of Civil Procedure require that, subject to certain exceptions, all actions be prosecuted by and in the name of the real party in interest. Pa.R.C.P. 2002. Prior to the adoption of the Rules, Pennsylvania had adhered to the common law “use” action, mentioned in the statute found at 12 P.S. 144 discussed supra. Upon adoption of the Rules, this “use” action was for the most part abandoned in favor of the “real party in interest,” Anderson’s Civil Practice, Comment to § 2021, p. 22. Rule 2002 still preserves mention of the earlier form, however, as may be seen below:

Rule 2002. Prosecution of Actions by Real Parties in Interest. Exceptions.

Text of Rule

(a) Except as otherwise provided in clauses (b), and (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.
(b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff
(1) is acting in a fiduciary or representative capacity, which capacity is disclosed in the caption and in the plaintiff’s initial pleading; or
(2) is a person with whom or in whose name a contract has been made for the benefit of another.
(c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise.
(d) Clause (a) of this rule shall not be mandatory where a subrogee is a real party in interest. Adopted Feb. 14, 1939. Amended Oct. 29, 1941.

The equity action, which ended in assignment of costs only upon the appellees “Lee” and “Obleman” who pursued that action through appeal, was initiated in the names of the husband property-owners only and their wives were not named as parties. The standing of the husband-appellees to bring that equity action rested upon their ownership of entireties property. The dictates of Rule 2002 are mandatory, 4 Anderson’s Civil Practice § 2002.1, p. 21.

The ownership interest in entireties properties is so conjoined in both spouses, and the legal protections afforded married couples owning by entireties is so great, that where the property itself affords the basis for its owners to initiate suit we see no justification for one spouse to commence an action in his name alone, unless he does so under Rule 2002(b)(1) and openly acknowledges the beneficial interest of the other spouse and his own capacity as fiduciary or representative.

Assuming, however, that a spouse has ignored the mandatory Rule of 2002, and that the defendants have not enforced the spousal joinder with preliminary objections under Rule 1017(b)(5), the situation we face here, we find that the wording of 12 P.S. § 144, supra, is apropos. Whether the equitable plaintiff is named as a party or not, when an action is prosecuted for his benefit, he is liable to execution on a judgment for costs, if his name is suggested on the record before execution issues.

It is inconceivable that the equity action tried in the court below could have proceeded through trial and appeal without reflection on the record in that case of the existence of the spouses who were owners by the entireties with the plaintiff property owners. More to the point, the record in the instant assumpsit action quite clearly reflects their names and their ownerships by the entireties of the property that would have benefited by the prevention of the construction of low-income housing had their spouses succeeded in enjoining the builder. There is no chance that execution could issue before the parties’ involvement in the case was clear on the record.

To permit owners by the entireties to bring an action based on the ownership of the entireties property and for the benefit of the entireties owners, to permit them to ignore the mandates of Rule 2002, and then to permit them to insulate themselves from their obligation to pay costs awarded through use of the legal protections afforded the same entireties property, would be for this court to abrogate the right established for a hundred and fifty years and more, which allows a defendant awarded costs the right to recover from the equitable plaintiff as well as the named plaintiff. We will not do so. Instead we hold that both husband and wife are proper parties under the instant circumstances.

However, as to the appellees, Roger and Pauline L. Hughes, we sustain the preliminary objections. Because of its disposition of the issues, the court below never needed to discuss their objection that they had not pursued the action at trial level, did not participate in the appeal, and were not named in the order of the Commonwealth Court assigning costs against the other two plaintiffs. We must address that objection here, however.

The original action was in Equity, and allowance of costs in equity lies largely within the discretion of the court. Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975). Of course, the court’s discretion must be exercised reasonably. Appeal of Biddle, 8 A. 640, 5 Saddler 288, 6 Cent. 903, 19 W.N.C. 219 (1887). Ordinarily, the costs follow the decree entered, U.S. v. Bethelehem Steel, 26 F.Supp. 259 (1929), but the rule is to render a party chargeable with the costs of useless litigation for which he is responsible. Kauffman’s Appeal, 112 Pa. 645, 4 A. 20 (1886). Equity even has the power to impose costs upon the winning party if such would be just. McCloskey v. Kirk, 243 Pa. 319, 90 A. 73 (1914).

Under the circumstances of the original equity case, where appellee “Hughes” did not pursue the action at the trial level, nor at the appellate level, the Commonwealth court was justified in assessing cost only to appellees “Lee” and “Obleman” who were in fact the parties responsible for the vast majority of the costs incurred. Therefore the preliminary objection of Roger Hughes and Pauline L. Hughes on the grounds that they abandoned prosecution of the action and were not assessed the costs is sustained.

The final objection of the parties, also not disposed of in the opinion below, goes to the right of appellant as assignee of “Housing Authorities” to pursue the assumpsit action for costs against the parties to whom costs were assessed.

The comments following Rule 2002, 4 Anderson’s Civil Practice, p. 22, make it plain that:

The real party in interest rule was originally inspired by the desire to avoid the uselessness of requiring an assignee to pretend to be suing in the name of the assignor to his use .. .

Further, Anderson’s, supra at p. 27 adds unequivocally: The assignee of a claim is a real party in interest. . . . The rule that the assignee is the real party in interest is applied without regard to the nature of the claim or right that is assigned . . . See id. and cases cited therein.

Appellant is therefore a proper party in this matter as a real party in interest and may not be denied its right to pursue this action.

Wherefore the Order of the lower court sustaining the preliminary objections of the appellees “Lee” and “Obelman” and their wives is reversed. The order of the lower court sustaining the preliminary objections of the appellees “Hughes” and his wife is affirmed. The case is remanded to lower court for proceedings consistent with this opinion. We do not retain jurisdiction.

      . Clearfield Area Housing Corporation v. Hughes, et al., 13 Pa.Commonwealth 96, 318 A.2d 754 (1974).

      . We note that another portion of the Act of April 23, 1829 is “repealed absolutely”, 42 Pa.R.C.P. 2025, in contrast to the treatment of § 2, discussed supra, under § 1722(a)(1).

      . Pa.R.C.P. 1017(b)(5) provides that preliminary objections may raise the defenses of “lack of capacity to sue, pendency of a prior action, nonjoinder of a necessary party or misjoinder of a cause of action.” Assignee of defendants in the equity action, now the appellant, did raise preliminary objections, which were dismissed, Clearfield Area Housing Corporation v. Hughes, et al., supra, at footnote 1, at 104, 318 A.2d at 755, and that court “declined to comment” upon the contention that the original plaintiffs had standing to sue “beyond stating, that at best it demonstrates an amendable deficiency in the plaintiff’s pleading, not a matter of substance.” Id. at 758.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    450 A.2d 660
    COMMONWEALTH of Pennsylvania v. Robert E. BECKMAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed July 16, 1982.
    Reargument Denied Sept. 29, 1982.

      Jerry Schuchman, Glenside, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

On July 6,1981 appellant, Robert E. Beckman, Jr., filed an omnibus pre-trial motion containing, inter alia, a motion to quash an information based on a claim that jeopardy had attached, which motion was denied.

Denial of a pretrial application seeking discharge on double jeopardy grounds is considered a “final order” and may thus be appealed before trial. Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980).

On February 14, 1981 Robert Beckman, appellant herein, led police on a high speed chase through Upper Dublin and Abington Townships in Montgomery County, Pennsylvania. As a result of the chase he was charged with two counts of aggravated assault, four counts of reckless endangerment, three counts of resisting arrest, misdemeanor disorderly conduct, and two misdemeanor Vehicle Code violations. Beckman was also charged with twenty-six summary offenses. All of these charges were filed in Upper Dublin Township on February 15, 1981, in the office of District Justice A. T. Maynard, the issuing authority for the magisterial district covering Upper Dublin Township who held a preliminary hearing on March 25, 1981. Beckman was represented by counsel at this hearing. At the beginning of the hearing District Justice Maynard refused to hear the ten summary charges arising out of Beckman’s conduct in Abington Township, believing he had no jurisdiction to hear charges based on events occurring outside his district. Beckman made no objection to this decision. District Justice Maynard held Beckman for court on all felony and misdemeanor charges; he did not rule on the sixteen summary offenses that occurred in Upper Dublin but rather sent them to common pleas court with the other charges.

After District Justice Maynard refused to hear charges relating to events occurring in Abington Township, Officer McCreary of the Abington Township Police Department filed the ten summary charges with District Justice Frank Plummer. District Justice Plummer’s district covers Abington Township. The offenses (reckless driving, speeding, driving without lights to avoid identification or arrest, fleeing a police officer, throwing liquor bottles on the highway and five violations of traffic signals) took place in Abington Township, as Beckman fled from Upper Dublin. On April 7, 1981, Beckman was tried in District Justice Plummer’s court. Two police officers testified against him; he was found guilty on all ten charges. Beckman was sentenced to pay fines and costs.

When the Upper Dublin portion of the case came to trial in the Montgomery County Court of Common Pleas, Beck-man moved to quash the bills of information based on an alleged violation of the double jeopardy clause of the United States and Pennsylvania Constitutions as well as 18 Pa.C.S. § 110. After a hearing on this motion the Honorable Samuel W. Salus, II denied Beckman’s motion on all save two charges. This appeal followed. Beckman was directed to file a statement of matters complained of on appeal and did so on September 16, 1981. Judge Salus wrote an opinion explaining his order denying Beckman’s motion. This opinion was filed September 21, 1981.

The evidence adduced at the preliminary hearing showed that Mrs. Lee Losse was driving home from work at about 10:30 p.m. on February 14, 1981. As Mrs. Losse drove down Susquehanna Road in Upper Dublin Township, she stopped at a light where the driver of another car attracted her attention. Mrs. Losse later identified the driver as Beck-man. When Mrs. Losse pulled away from the light, the other car began to push hers. In an effort to avoid the car behind her, Mrs. Losse steered toward the shoulder; as she did so the other car pushed again. Mrs. Losse’s car flipped over onto its roof. Lee Losse was helped from her car by a police officer who radioed in a report of the incident.

As a result of this call, Officer McCreary of the Abington Township Police Department joined the chase of Beckman. Officer McCreary pursued Beckman on Susquehanna Road as Beckman traveled from Upper Dublin into Abington. The chase ended when Beckman crashed into a tree. Officer McCreary saw Beckman speeding, without lights, through several traffic signals. Charges were filed against Beckman the next day.

Beckman frames his first appellate issue as follows:

1. Did the lower court err by finding that appellant chose to plead guilty to certain summary offenses in one district court thus incorrectly concluding that his acts alone bifurcated the proceedings?

Brief for Appellant at 2.

In its opinion the trial court states that Beckman pled guilty to the summary offenses in Abington Township, thus necessitating dual proceedings. Beckman points out, and the Commonwealth concedes, that he was found guilty by the Abington district justice. Beckman did not plead guilty; therefore, he did not bifurcate the proceedings against him. Even if the theory relied upon by the lower court in denying Beckman’s motion to quash the information was wrong, its order may be affirmed if there is a proper basis for it. Commonwealth v. Bartley, 262 Pa.Super. 390, 396 A.2d 810 (1979).

Beckman’s second contention in this appeal is:

2. Did the lower court err by denying appellant’s motion to quash the informations based on former jeopardy inasmuch as (1) all summary as well as misdemeanor and felony offenses arose out of the same criminal episode, (2) all offenses occurred within the venues of two contiguous district courts embraced by the same common pleas court, (3) appellant was tried and found guilty of certain summary offenses by one of the contiguous district courts, but the remaining summary offenses, all misdemeanors and felonies were [preferred] to common pleas court by the adjacent district court at a time when the prosecution had knowledge of all charges pending against appellant, and (4) the prosecution failed to request consolidation of all summary, misdemeanor and felony charges?

Brief for Appellant at 2.

Beckman argues that the decision of our supreme court in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), explained, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) and the provisions of 18 Pa.C.S. § 110 require the charges against him to be dropped. In pertinent part § 110 states:

§ 110. When prosecution barred by former prosection for different offense

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) Any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or ....

In its second Campana opinion, the supreme court stated that the holdings in both cases were embodied in this section of the Crimes Code. Accordingly, Beckman’s rights are to be analyzed with reference to § 110.

Before § 110 becomes applicable to a particular case, all the elements set forth in the statute must be present. There must be a first prosecution which ended in an acquittal or a conviction; the second prosecution must be based upon the same conduct or arise from the same criminal episode; the offense had to be known to an appropriate prosecuting officer when the first trial began and within the jurisdiction of a single court. Here, Beckman was convicted on the Abington charges. The high speed chase, with its attendant violations of the law, was an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series and is thus a continuous criminal episode. See, Campana II, supra. The offenses were obviously known to the prosecuting officer since all charges were filed at once. Even though District Justice Maynard ruled he had no jurisdiction over the Abington charges, the charges were within the jurisdiction of a single court. See Commonwealth v. Ryan, 484 Pa. 602, 400 A.2d 1264 (1970) (unless specially limited, district justices have at least countywide jurisdiction).

The general rule established by interpretation of the Campana cases and § 110 is that all charges resulting from the same criminal episode should be consolidated at one trial. Commonwealth v. Carelli, 291 Pa.Super. 502, 436 A.2d 228 (1981); Commonwealth v. Beatty, 286 Pa.Super. 166, 428 A.2d 624 (1981). Beckman believes that all charges arising from his conduct on February 14, 1981 should have been tried at the same time; therefore he argues that his conviction of ten summary offense in District Justice Plummer’s court precludes his trial on felony, misdemeanor and summary offenses in the court of common pleas. We note that before § 110(1) controls a case there must be a ‘former prosecution’ resulting in an acquital or conviction as defined in 18 Pa.C.S. § 109 and a ‘subsequent prosecution’ for an offense arising from the same criminal episode. This court considered the meaning of the terms ‘former prosecution’ and ‘subsequent prosecution’ in Commonwealth v. Fries, 284 Pa.Super. 421, 426 A.2d 119 (1981), a case factually similar to the case at bar.

In Fries the defendant was stopped for speeding and arrested for speeding and for driving under the influence of alcohol. The police filed a criminal information charging Fries with driving under the influence and attached a citation charging him with the summary offense of speeding. Fries attempted to plead guilty to the summary offense by paying a fine, but the fine was returned by the district justice. At trial before the court of common pleas, Fries was found guilty on the misdemeanor charge. On appeal he argued that paying the summary fine barred his subsequent prosecution on the misdemeanor charge.

Speaking through Judge Brosky, a panel of this court held there was only one prosecution. The court said:

Under 18 Pa.C.S.A. § 108(e), ‘a prosecution is commenced either when an indictment is found or when a warrant or summons is issued.’ Here, the facts show that the citation for the summary offense was attached to the criminal information. It was not the case, then, that appellant was issued a citation for the summary offense on one date and subsequently issued a second citation (or, as in this case, a criminal information) on another date for an offense arising out of the same conduct. Here, both charges were lodged against appellant on the same date, March 8, 1978. Thus, there was but one prosecution brought against appellant. The prosecution for the summary offense, therefore, was not ‘former’ to the prosecution for the misdemeanor offense. Nor did the prosecution for the summary offense result in a conviction, since we affirm the lower court’s holding that there was no conviction on the speeding charge because there was no ‘plea of guilty . .. accepted by the court.’ The prohibition against subsequent prosecutions contained in Section 110, therefore, does not apply here.

Id., 284 Pa.Super. at 427, 426 A.2d at 121-22.

In Beckman’s case all charges were brought against him at the same time. Here, as well as in Fries, the defendant was charged with all of his offenses on the same date. The charges against Beckman were not separated until District Justice Maynard refused to hear the Abington charges.

The refusal of District Justice Maynard to hear all the charges against Beckman raises a statutory exception to the general rule of § 110(l)(ii). That part of § 110 provides that all charges shall be tried together unless the court orders a separate trial. “Court” is defined as follows:

Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provisions of this part, the following words and phrases, when used in this title shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:
‘Court.’ Includes (when exercising criminal or quasi-criminal jurisdiction pursuant to 42 Pa.C.S. § 1515 (relating to jurisdiction and venue)) a district justice.

18 Pa.C.S. § 103.

When District Justice Maynard refused to hear some of the charges before him, he was clearly exercising criminal jurisdiction pursuant to 42 Pa.C.S. § 1515 and was a court within the meaning of § 103 and § 110 of the Crimes Code. The Commonwealth brought its charges at one time, in compliance with § 110. The bifurcation of the proceedings was due to District Justice Maynards’ refusal to hear all the charges; which action brings this case within the exception to § 110’s rule on compulsory joinder. Therefore, Beckman may be tried in the Montgomery County Court of Common Pleas.

Order affirmed.


author: LIPEZ, Judge:

text:
    450 A.2d 664
    COMMONWEALTH of Pennsylvania, Appellant in No. 184, v. Van C. LYNCH, Jr., Appellant in No. 1744 and No. 183.
    Superior Court of Pennsylvania.
    Argued June 12, 1980.
    Filed July 23, 1982.
    Reargument Denied Oct. 7, 1982.

      Nino V. Tinari, Philadelphia, for appellant in Nos. 1744 & 183 and for appellee in No. 184.

      Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant in No. 184 and for Commonwealth, appellee in Nos. 1744 & 183.
    Before WICKERSHAM, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

In a non-jury trial ending on April 27, 1979, defendant was convicted of robbery, possession of an instrument of crime, and criminal conspiracy. No post-verdict motions were filed. On July 26, 1979 the trial judge imposed a sentence of three to ten years imprisonment for robbery, with concurrent sentences of one to five years for the other two offenses. Defendant filed an appeal from this judgment of sentence on August 22, 1979.

On December 14, 1979 the trial judge entered an order stating that the sentence of July 26, 1979 was “vacated,” and a “New Sentence” was imposed, consisting of three concurrent one-to-five year terms. The Commonwealth sought relief from the December 14 order’s reduction of the sentence for robbery by filing a petition for writ of prohibition in this court on December 26, 1979. On December 28, 1979 this court entered a per curiam order, which stayed the trial court’s “New Sentence” order of December 14, 1979, and ordered defendant to report to begin serving the original sentence on January 2, 1980.

Both the Commonwealth and defendant filed timely notices of appeal from the December 14, 1979 order. This court entered an order on March 14, 1980, denying the Commonwealth’s petition for writ of prohibition, continuing the stay, of the December 14, 1979 order, and consolidating the three appeals, which were argued together before this panel. We agree with the Commonwealth in its appeal (No. 184 Philadelphia, 1980) from the December 14, 1979 order, that the order is a nullity because the trial court was without jurisdiction to enter such an order at that time. We therefore vacate the December 14, 1979 order, and dismiss defendant’s appeal from it (No. 183 Philadelphia, 1980). In defendant’s appeal from his original judgment of sentence of July 26, 1979 (No. 1744 October Term, 1979), we affirm.

I.

The Commonwealth contends in its appeal that the trial court had no jurisdiction on December 14, 1979 to vacate the judgment of sentence of July 26, 1979, which defendant had appealed on August 22, 1979. We agree. Section 5505 of the Judicial Code provides:

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

42 Pa.C.S. § 5505. Under section 5505, the attempt to modify sentence was a nullity, both because the appeal had already been taken and because more than 30 days had passed since entry of the original sentence. Commonwealth v. Canady, 297 Pa.Super.Ct. 292, 296-297, 443 A.2d 843, 845 (1982). Therefore we vacate the modification order of December 14, 1979 and dismiss defendant’s appeal from it.

II.

In defendant’s appeal from his original judgment of sentence of July 26,1979, the only issue raised is the sufficiency of the evidence. The Commonwealth contends that this issue is waived, because of defendant’s failure to file post-verdict motions in accordance with Rule of Criminal Procedure 1123. We agree.

The opinion of the court below states that the defendant “filed” post-verdict motions by handing them to the judge’s law clerk in chambers on August 8, 1979, while the judge was on vacation. However, no copy of these motions is included in the record certified to this court undér Rule of Appellate Procedure 1921. This is because leaving motions in the judge’s chambers, or even handing a copy to the judge in the courtroom or elsewhere, does not constitute filing. A document in any criminal matter must be filed in the office of the clerk of courts, 42 Pa.C.S. § 2756(a), who in Philadelphia is known as the Clerk of Quarter Sessions. 42 Pa.C.S. § 2751(c). Thus, the motions allegedly left with the law clerk were never “filed in the lower court” within the meaning of Rule 1921, and did not become part of the record as defined by that rule. Ordinarily we should have to discuss the matter no further, and would simply not consider the motions, because of the principle that material outside the record cannot be considered on appeal. E.g., Commonwealth v. Young, 456 Pa. 102, 115 & n. 15, 317 A.2d 258, 264 & n. 15 (1974). However, the fact that the trial judge’s opinion says that the motions were left in chambers before September 4, 1979, the effective date of Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), creates a problem.

In Commonwealth v. Gravely, supra, 486 Pa. at 198-99, 404 A.2d at 1298, Chief Justice Eagen’s lead opinion stated:

[W]e now rule that sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review. We caution that this ruling applies to every post-verdict motion which is filed sixty days hence and to any motion which is already filed, but which may still be supplemented after sixty days from this date. Our ruling is prospective only because of the possibility of reliance by counsel on prior decision of this Court. Cf. Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975).

Gravely was filed July 6, 1979, making its effective date September 4, 1979. The effect of the unfiled motions in this case, which the lower court’s opinion says were left in chambers on August 8, 1979, must therefore be decided under the case law before Gravely. The Supreme Court had previously stated in Commonwealth v. Jones, 478 Pa. 172, 176-77 n.1, 386 A.2d 495, 497 n.1 (1978):

[T]he Commonwealth argues the issues involving the admissibility of Jones’ statements , are waived because they were not set forth in post-verdict motions, citing Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). However, the issues were set forth in a brief presented to the post-verdict motion court and are therefore preserved for review. Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978) (plurality opinion, Eagen, C. J., joined by O’Brien and Manderino, JJ.; dissenting opinion, Pomeroy, J.). See Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealh v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). Furthermore, we decline to draw a distinction between a brief filed with the clerk of the court and those presented to the court without filing on the basis that the former becomes part of the record and the latter does not. The distinction would place form over substance, particularly when briefs filed in the intermediate appellate courts of this Commonwealth have not to date been made part of the record when certified to this Court on appeal. The post-verdict motion court performs an appellate function and briefs presented to that court should be considered when made available to us to resolve waiver questions even though they are not “technically” part of the record. The situation presents us with circumstances which are no different than when we consider briefs presented to the intermediate appellate courts which are not made part of the record.

Jones was a majority opinion of our Supreme Court, and this court was accordingly obliged to follow it. This caused something of a dilemma, in that this court was also obligated to follow the rule established by a unanimous Supreme Court that material outside the record may not be considered on appeal, e.g., Commonwealth v. Young, 456 Pa. 102, 115 & n. 15, 317 A.2d 258, 264 & n.15 (1974), while Jones seemed to say that material outside the record could be considered. On the question of how to interpret Jones in order to resolve this dilemma, this court divided 3-2 in Commonwealth v. Roberson, 258 Pa.Super.Ct. 471, 393 A.2d 455 (1978), in which Judge Price’s majority opinion stated:

Although abide by the supreme court’s decisions we must, we simply do not read Jones to place upon this court the obligation of expending time, effort and man power to scout around the prothonotaries’ offices in fifty-nine courts of common pleas to unearth briefs that may have been “presented” to the courts, but not made part of the records, in an effort to find defendants’ assertions of error preserved. We interpret Jones to require that if a defendant presents a memorandum or brief to the post-trial motions court, and, whether filed with the clerk or not, it is included in the record certified to us, then we are constrained to find his assertions preserved and to rule upon them. Absent that, we do not feel compelled to exert this court’s energies engaging in a hunting expedition. Until mandated to do so, we will not.

Id., 258 Pa.Superior Ct. at 475-76, 393 A.2d at 457 (footnote omitted).

Since three of the five participating judges joined Judge Price’s opinion in Roberson, its interpretation of Jones constitutes binding precedent. Commonwealth v. Mason, 456 Pa. 602, 604, 322 A.2d 357, 358 (1974); see Commonwealth v. Brown, 288 Pa.Super.Ct. 171, 174 n.1, 431 A.2d 343, 344 n.1 (1981). It might be contended that Roberson is not controlling because it conflicted with what the Supreme Court majority said in Jones. See Mackey v. Adamski, 286 Pa.Super.Ct. 456, 465-66, 429 A.2d 28, 32 (1981); Evans v. Blimpie Base, Inc., 284 Pa.Super.Ct. 256, 260 & n.2, 425 A.2d 801, 802-03 & n.2 (1981); cf. Commonwealth v. Manley, 282 Pa.Super.Ct. 376, 383 n.5, 422 A.2d 1340, 1343 n.5 (1980), rearg. den’d, petition for allowance of appeal granted (1981); see also Gallardy v. Ashcraft, 288 Pa.Super.Ct. 37, 43 n.7, 430 A.2d 1201, 1204 n.7, appeal dismissed as improvidently granted, 497 Pa. 587, 442 A.2d 693 (1982). The position of the Roberson majority, however, has been vindicated now that “in Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d 494, 496 (1980), our Supreme Court has unanimously condemned consideration by an appellate court of material outside the record.” Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 483, 427 A.2d 1385, 1389-90 (1981) (footnote omitted). See also General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super.Ct. 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982). We conclude that where, as here, there are no post-verdict motions in the record because they were never filed with the clerk of courts, we must find the defendant’s contentions waived, even if motions were allegedly “presented” to the judge before the effective date of Commonwealth v. Gravely, supra.

Judgment of sentence of July 26, 1979 affirmed; judgment of sentence of December 14, 1979 vacated, and defendant’s appeal from it dismissed.

      . Defendant is in no way prejudiced by this dismissal, since the second appeal was filed only as a protection in case the “New Sentence” imposed on December 14, 1979 were held valid.

      . For both technical and practical reasons, the Roberson majority’s position was the only way in which the unworkable situation created by the Jones opinion could be resolved. Jones relied on an analogy to the Supreme Court’s ability to request copies of briefs filed in intermediate appellate courts, in order to determine if an issue raised in the Supreme Court had been waived by failure to pursue the issue in the intermediate appellate court. The technical reason that this analogy was faulty was set forth at length in Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 482-83 n.6, 427 A.2d 1385, 1389 n.6 (1981). The practical reason we could not apply this procedure to request an allegedly “presented” document from the trial court is that the allegedly “presented” document was never filed with the office of the clerk of courts in the first place, and therefore could not be sent to us by that office, even if we requested it through our prothonotary’s office.

      . An alternative basis for holding defendant’s contentions waived in this case is that the motions were allegedly “presented” only after a valid judgment of sentence was imposed on July 26, 1979. Even if motions were filed and placed in the record at that late date, the trial judge here would have no power to act on them when she did (more than 30 days after judgment of sentence), unless the sentence had been validly vacated within 30 days under Rule of Appellate Procedure 1701(b)(3). This procedure was not followed here.


author: PER CURIAM:

text:
    450 A.2d 668
    Tony PANEPINTO, Appellant v. DUMMY’S DELIGHTFUL SALOONERY.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed Aug. 13, 1982.
    Reargument Denied Oct. 6, 1982.
    Petition for Allowance of Appeal Denied Dec. 22, 1982.

      Vincent P. Difabio, Philadelphia, for appellant.
    Catherine N. Jasons, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   PER CURIAM:

This is an appeal from a Judgment of Nonsuit, entered in the Court of Common Pleas of Philadelphia County.

On October 21, 1977 the appellant, Tony Panepinto, filed a Complaint in Trespass against the appellee, Dummy’s Delightful Saloonery, for personal injuries arising from a fall on stairs located inside the appellee, restaurant. A pre-trial conference was held on May 12, 1981, at which time a trial date was set for October 13, 1981 at 9:30 a.m. in courtroom 1206, Five Penn Center Plaza. On the morning of the scheduled trial, an associate of counsel for the appellant informed the trial court that the attorney responsible for the case was handling a criminal matter in New Jersey and would be returning later that morning. A jury panel had been sent over to the courtroom and the appellee’s counsel was present and ready to commence trial. The case was then called for trial and at 10:17 a.m. the Honorable Joseph P. Braig granted the appellee’s Motion for a Nonsuit and dismissed the case since counsel for appellant was not present. On October 28,1981 the appellant filed the instant appeal.

No motion to remove or set aside the judgment was entered in the court below, instead an appeal was filed directly to this Court. The appeal was prematurely taken and must be quashed.

An appeal does not lie from the entry of a judgment of nonsuit, but rather from the refusal to take it off. In re Estate of Jervis, 443 Pa. 226, 279 A.2d 151 (1971); Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964); Churilla v. Barner, 269 Pa.Super. 100, 409 A.2d 83 (1979); Durkin v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981) (Van der Voort, J., dissenting). This applies to actions at law as well as in equity. See: Pa.R.C.P. No. 1512.

A motion to set aside the judgment of nonsuit should first be made to the lower court en banc so as to give the court an opportunity to reconsider the evidence and to correct any errors before an appeal is taken. See: Kukich v. Serbian Eastern Orthodox, etc., supra. Since this procedure was not followed by the appellant, the appeal is quashed.

Appeal quashed.

      . The Motion for a Nonsuit was granted pursuant to Pa.R.C.P. No. 218 which states:
      When a case is called for trial, if one party is ready and the other is not ready, without satisfactory excuse being made known to the court, a non-suit may be entered on motion of the defendant, or the plaintiff may proceed to trial, as the case may be. Where the trial proceeds the court may require the prothonotary, or may authorize any attorney of the court, to participate in the drawing of a jury in behalf of the unready party.
      If no party is ready for trial when a case is called, the court shall strike the case from the trial list.


author: CAVANAUGH, Judge: HESTER, Judge, dissenting:

text:
    450 A.2d 669
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard L. WHITTALL.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed Aug. 27, 1982.
    Petition for Allowance of Appeal Denied Feb. 2, 1983.

      Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellant.
    Robert Mozenter, Philadelphia, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

This case involves a Commonwealth appeal from a lower court order discharging appellee, Riehard L. Whittall, under Pa.R.Crim.P. 1100. For the following reasons, we reverse and remand.

The relevant facts are as follows: A criminal complaint charging appellee with attempted burglary, possessing instruments of crime, and criminal conspiracy was filed on May 8,1978. The run date, in accordance with Pa.R.Crim.P. 1100, was November 4,1978. On November 14,1978, appellee entered an open guilty plea to these offenses before the Honorable Isaac S. Garb of the Bucks County Court of Common Pleas. Sentence was deferred pending a pre-sentence investigation.

In a February 14, 1979, letter, Judge Garb informed appellee’s former counsel, Bernard F. Gray, that his review of the pre-sentence report indicated that appellee denied his guilt of the charges against him. “Therefore, [the letter continued] I will assume that his plea of guilty will be withdrawn and I am directing the District Attorney to fix this matter for trial.” A carbon copy of that letter was sent to the district attorney’s office. Appellee’s case was thereafter listed for trial and continued on various occasions. On September 21, 1979, the Commonwealth filed a petition to extend the time for trial under Pa.R.Crim.P. 1100(c). A hearing was held on the Commonwealth’s petition, and on appellee’s oral motion to dismiss the charges, on October 2-3, 1979. The Honorable William H. Rufe, III, dismissed appellee’s case under Pa.R.Crim.P. 1100 on October 3, 1979.

In discharging appellee, the lower court ruled that, once Judge Garb notified appellee that his guilty plea would not be accepted, the original 180 day period under Pa.R.Crim.P. 1100 recommenced. Since 149 days had elapsed when appellee’s guilty plea was entered on November 14, 1978, including excludable time prior thereto, the Commonwealth had thirty-one days remaining within which to try appellee after February 14,1979. Thus, appellee had to be brought to trial on or before Monday, March 19, 1979. Finding that the Commonwealth had neither tried appellee within that time or, alternatively, timely petitioned to extend the time for trial under Pa.R.Crim.P. 1100(c), the lower court sustained appellee’s motion to dismiss the charges.

In this appeal, the Commonwealth argues, as it did- below, that (a) the February 14, 1979, letter in which Judge Garb indicated that he “assumed [appellee’s] guilty plea will be withdrawn,” is not tantamount to an effective plea withdrawal so as to re-invoke the provisions of Pa.R.Crim.P. 1100, and (b) even assuming a valid plea withdrawal on that date, the Commonwealth has 120 days thereafter within which to try appellee under Pa.Crim.P. 1100(e)(1).

For the sake of clarity, we will first address the latter issue which is controlled by our recent en banc decision in Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). In that case, we held that the tendering of a guilty plea by an accused signified the commencement of trial regardless of whether that plea is accepted immediately by the trial court or is taken under advisement. Accordingly, we expressly overruled the decision of a panel of this court in Commonwealth v. Cox, 276 Pa.Super. 29, 419 A.2d 78 (1980) (Watkins, J., dissenting), wherein it was held that the action of the trial court in taking defendant’s guilty plea under advisement, and in ordering a pre-sentence report, did not constitute the commencement of trial for purposes of Pa.R.Crim.P. 1100. As we explained in Lewis:

The decision in Cox is inconsistent with the other decisions of this Court and also with the objectives of Rule 1100. When determining the commencement of trial under Rule 1100, there is no substantive difference between accepting a negotiated plea of guilty and deferring sentence for a presentence investigation and taking the plea under advisement and deferring sentence for the same type of investigation. In either event, that stage of the proceedings has been reached which points directly and immediately to a final adjudication of guilt. By tendering a plea of guilty, the defendant has formally admitted guilt and has made it unnecessary that guilt or innocence be determined by an adversary trial proceeding. In both instances, the defendant’s formal admission of guilt has made it unnecessary and impractical for the Commonwealth to attempt other proceedings to achieve a substantive determination of guilt. In both instances, the Commonwealth has brought the defendant before the court, where a final judgment of sentence can be imposed. Regardless of whether the guilty plea is accepted or taken under advisement, appellant must be allowed to withdraw his plea if the trial court is unable to accept the terms of a negotiated plea bargain.

295 Pa.Super. at 66-67, 440 A.2d at 1225-1226.

Here, the tendering of a guilty plea by appellee on November 14, 1978, signified the commencement of trial for purposes of determining the Commonwealth’s compliance with Pa.R.Crim.P. 1100 regardless of whether that plea was accepted on that date or taken under advisement by the lower court. See footnote 6, supra. Accordingly, once appellee’s plea was withdrawn with the permission of the lower court, the Commonwealth had a period of 120 days within which to commence a new trial under Pa.R.Crim.P. 1100(e)(1). Commonwealth v. Lewis, supra, 295 Pa.Super. at 67, 440 A.2d at 1226. The lower court erred in otherwise concluding that the original 180 day period under Pa.R. Crim.P. 1100 simply recommenced on February 14, 1979.

The more difficult question for our consideration is whether February 14, 1979, is the appropriate date signifying the commencement of the 120 day period under Pa.R.Crim.P. 1100(e)(1). The lower court found that Judge Garb’s February 14, 1979, letter marked the resumption of Pa.R.Crim.P. 1100 notwithstanding the absence of a formal plea withdrawal petition by appellee. Such a petition would have been, in the conclusion of the lower court, “a superfluous act” in light of Judge Garb’s unequivocal notification to both parties that appellee’s plea would not be accepted and his further direction that the case be relisted for trial. The Commonwealth, on the other hand, argues that Judge Garb’s assumption that appellee would seek to withdraw his plea, based on his apparent denial of guilt contained in the pre-sentence investigation report, can not substitute for appellee’s own decision to withdraw the plea. Hence, absent a written petition by appellee to withdraw his plea, that plea remains binding, and February 14,1979 can not be designated as the date after which the 120 day period for trial begins to commence. We disagree.

Pa.R.Crim.P. 320 states that “At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” Pursuant to that rule, a pre-sentence plea withdrawal request should be liberally construed provided the accused presents a fair and just reason therefor and also provided the Commonwealth has not been substantially prejudiced by reliance upon that plea. Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980); Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980); Commonwealth v. Hall, 275 Pa.Super. 85, 418 A.2d 623 (1980). Of course, a proper assertion of innocence, absent prejudice to the prosecution, constitutes a fair and just reason for permitting the withdrawal of the guilty plea. Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977). The Commonwealth does not dispute that appellee might have had a fair and just reason to withdraw his plea, but simply argues that he never, in fact, did so.

We are mindful that the proper procedure to challenge a guilty plea is to file a written petition to withdraw the plea with the lower court. Commonwealth v. Lantzy, 284 Pa.Super. 192, 425 A.2d 768 (1981); Commonwealth v. Cooper, 276 Pa.Super. 86, 419 A.2d 107 (1980). That requirement is important to ensure that the lower court, after having heard an accused once admit his guilt, may carefully consider the propriety of allowing a post-plea withdrawal. Our review of the record confirms that no formal petition to withdraw his guilty plea was ever filed by appellee. While we are reluctant to condone appellee’s dereliction, we cannot find, under the facts of this particular case, that the absence of such a petition was critical.

The February 14, 1979, letter was sent by Judge Garb to both appellee and the district attorney’s office. In compliance with the court’s direction that appellee’s case be listed for trial, the district attorney’s office sent appellee a letter on February 27, 1979, which informed him that his case had been scheduled for April 2, 1979. The record shows that appellee received several additional notices from the prosecutor’s office regarding subsequent court dates. Moreover, pre-trial preparation continued apace with appellee filing pre-trial motions for discovery and to suppress statements. At no time did the Commonwealth ever allege prejudice as a result of appellee’s plea withdrawal.

Thus, it is clear that, after receipt of Judge Garb’s letter of February 14,1979, all parties considered that appellee’s guilty plea had been withdrawn and acted accordingly. It would elevate form over substance to now hold that appellee is still bound by his plea merely because he failed to file a written withdrawal petition.

We, therefore, conclude that February 14, 1979, signifies the date of appellee’s plea withdrawal and commences the 120 day time period under Pa.R.Crim.P. 1100(e)(1). The Commonwealth had until June 14, 1979, or 120 days after February 14, 1979, to try appellee. Clearly they did not do so. However, we are unable to determine from the record, including the evidentiary hearing on Pa.R.Crim.P. 1100 which was held before Judge Rufe on October 2-3, 1979, whether there were reasons justifying the Commonwealth’s failure to timely bring appellee to trial. Indeed the lower court’s opinion, which addressed only the questions herein raised, provides us with no guidance in this area. Hence we remand for the completion of the record so that the lower court can resolve whether appellee’s right to be tried within 120 days after February 14, 1979, was violated.

Order reversed and case remanded for proceedings consistent with this opinion.

HESTER, J., files dissenting opinion.

HESTER, Judge, dissenting:

I respectfully dissent. The appellee entered a plea of guilty in open court to attempted burglary, possessing instruments of crime and criminal conspiracy.

As stated by the majority, the proper procedure to challenge a Guilty Plea is to file a written petition with the lower court to withdraw the plea. Commonwealth v. Lantzy, 284 Pa.Super. 192, 425 A.2d 768 (1981); Commonwealth v. Cooper, 276 Pa.Super. 86, 419 A.2d 107 (1980). Unlike the majority, I find the absence of such a petition to be critical.

Pa.R.Crim.P. 320 provides that at any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

As I interpret the record, the appellee has never withdrawn his plea of guilty either in person or through counsel. There is nothing in the record indicating an intention on the part of the appellee-defendant to the effect that his plea of guilty is to be withdrawn. True it is, the pre-sentence report indicated that appellee denied his guilt to the individual preparing said report. I submit that this indication made, not to the court in the form of a Petition and not through counsel, cannot be interpreted as a proper withdrawal of a plea of Guilty. It did not give the court jurisdiction over the matter as the issue has never been before the court.

The defendant-appellee is mandated to petition the court wherein he may request that his plea be withdrawn. He has the burden of demonstrating he has a fair and just reason for said withdrawal, Commonwealth v. Hall, 275 Pa.Super. 85, 418 A.2d 623 (1980). The only manner in which this can be achieved is by way of Petition and subsequent hearing. In all of our reported cases concerning withdrawal of a plea prior to sentencing, the matter came before the court by way of Petition. See Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977), Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980), Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980), and Commonwealth v. Hall, supra. There was a direct request from the individual defendants to the court to change the pleas to not guilty. In the case at bar, we have no such request.

I would hold, therefore, that the court below lacked the authority to assume that the plea of guilty was being withdrawn and directing the District Attorney to set the case for trial.

The plea of guilty is still open on the record.

I would remand for the purpose of according to the appellee the opportunity to petition the court below to withdraw his plea. In the event he thereafter exercises that privilege and it appears that the Commonwealth has not been substantially prejudiced and the court subsequently permits the withdrawal, the Commonwealth must try him within 120 days.

For the foregoing reasons, I dissent.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 903.

      . Section (a)(2) of Pa.R.Crim.P. 1100 provides that: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”

      . Prior tó November 14, 1978, there were several continuances involving appellee’s case, none of which are relevant to the instant appeal.

      . The notes of testimony of the November 14, 1978, guilty plea hearing are inexplicably missing from the official court record. Thus, it is unclear whether the lower court accepted the guilty plea and merely deferred sentencing or instead took appellee’s plea under advisement. We note, however, that the Commonwealth’s brief states that Judge Garb accepted appellee’s plea on the date it was tendered; we have no information to the contrary from appellee who opted not to file an appellate brief. Our disposition of this case would not be altered in either event.

      . Pa.R.Crim.P. 1100(c), in pertinent part, states: “At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial...”

      . The thirty-first day would fall on Saturday, March 17, 1979, thereby extending the time for trial until the following Monday. Commonwealth v. Jones, 473 Pa. 211, 373 A.2d 1338 (1977).

      . Section (e)(1) of Pa.R.Crim.P. 1100 provides that: “When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.”


author: CERCONE, President Judge:

text:
    450 A.2d 674
    COMMONWEALTH of Pennsylvania v. Jerry ARDOLINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1981.
    Filed Sept. 3, 1982.

      Donald R. Calaiaro, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and CIRILLO, JJ.
   CERCONE, President Judge:

The instant case presents us with a direct appeal from judgments of sentence entered against appellant following his conviction on charges of receiving stolen property and resisting arrest.

On November 1,1978 two color television sets were unlawfully removed from the premises of the West Liberty Athletic Association in the City of Pittsburgh. A certain Matthew Smith a/k/a Atom Ant was later implicated in the crime. Smith told Pittsburgh police that he had sold the televisions to appellant. On February 23, 1979, with Smith in tow, Pittsburgh police Detectives Wolfe and Parsons, accompanied by uniformed officers of the Mt. Oliver Borough Police Department, proceeded to appellant’s Mount Oliver residence to question him about the television sets, and to recover the same. The peace officers approached appellant in his garage and questioned him about the televisions and about his acquaintance with Smith. Appellant denied any knowledge of “Matthew Smith,” but when the police pointed to Smith, who had remained seated in their car, appellant acknowledged knowing him as “Atom Ant.” He then volunteered the information that when he purchased the sets from Smith he knew them to have been stolen, and that he subsequently sold them to two other persons. The police immediately read him his Miranda rights and placed appellant under arrest. Detectives Wolfe, Parsons and appellant then drove around Allegheny County in an attempt to locate the stolen televisions. An hour and a half after his arrest appellant was taken to the Pittsburgh Public Safety Building where he was once again read his Miranda rights. Appellant executed a “rights waiver form” and wrote out his responses to various questions the police put to him. Additionally, a conversation between appellant and the police concerning the crime was tape recorded with appellant’s permission. During this conversation appellant again admitted purchasing the televisions from Smith with the knowledge that they were stolen.

On the same day as his initial arrest a complaint was filed against appellant formally charging him with receiving stolen property and conspiracy. Based on this complaint appellant was re-arrested on February 27, 1979. He was held for court on the charges by the local magistrate on March 1, 1979. Upon the motion of the Allegheny County district attorney the motions judge of the criminal division of common pleas court entered an order for nolle prosequi as to these charges on April 25, 1979. Neither appellant nor his attorney was notified of the Commonwealth’s intention to present the nolle prosequi motion, nor did either of them attend the hearing on the motion. The basis for the motion was the district attorney’s belief that the February 23 complaint contained a substantive defect which could not be cured pursuant to Rule 150 of the Pennsylvania Rules of Criminal Procedure.

A second complaint alleging the charge of receiving stolen property, but not the conspiracy charge, was filed May 4. Eighteen days later Detectives Wolfe and Parsons, again accompanied by uniformed Mt. Oliver police officers, went to appellant’s home to execute the new arrest warrant. Appellant, aided by his brother, resisted this arrest, but the peace officers were able to take him into custody nonetheless. With the approval of the district attorney and the magistrate this second complaint was withdrawn on May 30, 1979. The record before us does not show whether appellant or his counsel agreed to this withdrawal.

On June 1, 1979 a third complaint was filed against appellant. This complaint charged him not only with receiving stolen property but with resisting arrest as well. Appellant was arrested yet again on June 19, and arraigned. A preliminary hearing was held on June 29, 1979 where appellant was held for court on both counts. The district attorney subsequently issued an information against appellant on both counts. Pre-trial motions to dismiss for violation of Rule 1100 and to suppress appellant’s statements to the police were timely filed and heard on the date the case was called to trial, September 25, 1979. The court found that appellant had volunteered his initial confession to the police, that they properly read him his Miranda rights, and that he thereafter knowingly and intelligently waived those rights, and thus denied the suppression motion. On the Rule 1100(f) motion to dismiss the court ruled that the Commonwealth had 180 days to bring appellant to trial from the date of the third complaint, that those 180 days had not yet elapsed, and denied the motion. For the reasons hereinafter more fully set out we now vacate the judgment of sentence and discharge appellant on the receiving stolen property charge.

Appellant’s first allegation of error, and the one we find dispositive, implicates two rules of criminal procedure: the first—Rule 150—rather lightly litigated, and the second— Rule 1100—considerably more so. See Pa.R.Crim.P. 150, 1100.

As noted in the Comment to Rule 1100, the Rule was instituted pursuant to the Pennsylvania Supreme Court’s decision in Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). See Pa.R.Crim.P. 1100, Comment. The purpose for its institution was “to more effectively protect the right of criminal defendants to a speedy trial.” Commonwealth v. Hamilton, supra, 449 Pa. at 308, 297 A.2d at 133. Rule 1100 now requires the Commonwealth to bring an accused to trial within 180 days or risk his discharge with prejudice unless it can show adequate reasons for its failure to do so. See Pa.R.Crim.P. 1100(c), (d) & (f).

Rule 150 of the Pennsylvania Rules of Criminal Procedure mandates that unless a defendant waives, either expressly or by failing to object timely, a substantive defect in a complaint, citation, summons or warrant, he shall be discharged, but without prejudice to the Commonwealth’s right to file a new complaint. However, if the defect is only “informal” it may be amended at any time. See Pa.R.Crim.P. 150(a) & (b).

Appellant contends that because the initial complaint was withdrawn by the Commonwealth by virtue of its motion for nolle prosequi, the time for trial under Rule 1100 continued to run from the date of the filing of the initial complaint. As authority he cites Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976). In the alternative, appellant argues that the dismissal of the first complaint was improper under Rule 150, and therefore the Rule 1100 run-date should have been computed from the first complaint and not from the third. He cites Commonwealth v. Brennan, 264 Pa.Superior Ct. 206, 399 A.2d 739 (1979) for this proposition. The Commonwealth counters with the argument that Whitaker is not controlling because it is the basis for the withdrawal of the complaint by the Commonwealth which must be looked to and -not the mere action of withdrawal or motion for nolle prosequi itself. It contends, that here there was no clear evidence of a prosecution attempt to skirt Rule 1100 as there was in Whitaker. Further, the Commonwealth posits the cases of Commonwealth v. Mumich, 239 Pa.Superior Ct. 209, 361 A.2d 359 (1976) and Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979) as controlling.

This Court held in Commonwealth v. Mumich, supra, that the one hundred eighty day period applicable under Rule 1100(a)(2) begins to run anew with the filing of a subsequent complaint after the dismissal of the initial one if, (1) the earlier complaint was properly dismissed, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100. See Commonwealth v. Mumich, supra. See also Commonwealth v. Braithwaite, 253 Pa.Superior Ct. 447, 385 A.2d 423 (1978); Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979), aff’d 491 Pa. 151, 420 A.2d 385 (1980). But see, Commonwealth v. Brennan, supra. Since deciding Mumich, this Court has consistently applied the two-prong test developed there, and elucidated in Braithwaite, 253 Pa.Superior Ct. at 450, 385 A.2d at 424—425. Thus, if the complaint was improperly dismissed or if the record reveals a prosecutorial attempt to deny a defendant his speedy trial rights then the period in which the trial of the defendant must have begun will be calculated from the date of the filing of the first complaint. The Commonwealth must, therefore, be able to demonstrate both the proper dismissal of the initial complaint and its intent to comply with Rule 1100 if it is to have the benefit of computing the run-date from the date of the filing of the subsequent complaint.

Despite the dictum in Commonwealth v. Brennan, 264 Pa.Superior Ct. at 209, 399 A.2d at 740, that Whitaker stands for the proposition that the entry of an order of nolle prosequi upon motion of the prosecution does not toll the running of Rule 1100, no case has so held. The holding of Whitaker is rather that where the Commonwealth has sought to evade Rule 1100 by moving that a complaint be nolle prossed, the time for trial will be computed from the date of the filing of the first complaint. Moreover, all the cases since Commonwealth v. Mumich, supra, have the two-pronged test first utilized there. This is true even of the only other case where there was a withdrawal by the Commonwealth. In that case, Commonwealth v. Sires, 284 Pa.Superior Ct. 50, 424 A.2d 1386 (1981), we applied the Mumich-Braithwaite test to a situation where the initial complaint was summarily withdrawn by the arresting officer without any impartial judicial review. Based on clear precedent, therefore, we agree with the Commonwealth’s contention that the decision of this case should be controlled by the two-pronged Mumich-Braithwaite test. We proceed now to our decision on that basis.

Concerning “proper dismissal” we stated the following in Commonwealth v. Brennan:

“Proper dismissal” we understand to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. See Commonwealth v. Garbett, [256 Pa.Super. 488], 390 A.2d 208, 215 (1978) (Price, J., concurring.) This would include, we think, dismissal for failure to make out a prima facie case. See Braithwaite, supra; M. Marshall and J. Reiter, A Trial Court Working with Rule 1100, 23 Vill.L.Rev. 284, 293 n. 71 and accompanying text. Braithwaite indicates that whether the defendant or his counsel object to a dismissal is an important factor in determining whether the dismissal was proper. See 253 Pa.Super. at 450, 385 A.2d at 425. See also Commonwealth v. Mumich, 239 Pa.Super. 209, 213, 361 A.2d 359, 361 (1976); Marshall, supra at 292.

Id., 264 Pa.Superior Ct. at 210, 399 A.2d at 740-741. (Footnote omitted). Instantly, it is contended that the dismissal of the first complaint was improper because it contained no defect, or if it did, then the defect it contained was not substantive and could have been amended at anytime. See Pa.R.Crim.P. 150(a) & (b). Rule 150 does not delineate the difference between a substantive and an informal defect. The Comment to the Rule does provide some assistance in assessing that difference:

“Informal defect” refers to errors which do not prevent the substantive content of the document from being plainly understood.
Substantive defects would include those cases in which the defendant’s identity cannot be determined or in which the offense is not properly described.
Any new complaint must be filed within the time permitted by a statute of limitations.

Pa.R.Crim.P. 150, Comment. Case law has developed the distinction between the two.

We have seen that the first complaint charged appellant with receiving “movable property ... of the .. . Liberty Athletic Association” on or about a certain date knowing it to be stolen and without the intention of returning it to its lawful owner. The record indicates that the second complaint was identical to the first one, except that the conspiracy charge was dropped. The Commonwealth contends that this description was so inadequate that it rose to the level of a substantive defect in the complaints and could not be cured. Concerning the sufficiency of the description of stolen property in criminal pleadings it has been written that

. . . when it is necessary to refer to property in an indictment or information, the property should be described therein. It appears that the principal tests applicable for determining the sufficiency of the description of the stolen property in an indictment or information for receiving stolen property are the same as those which apply in determining the sufficiency of the description of the property in an indictment or information for larceny.

Annot., 99 A.L.R.2d 813, 818 (1965). Generally, indictments and informations will be upheld where they describe the stolen property with sufficient clarity for the defendant to prepare his defense to the charge, for a jury to determine whether the property received is the same as that upon which the charge is based, and for the defendant to be able to plead the judgment—once rendered—as a bar of a subsequent prosecution for the same offense. Id. Clearly, the first two complaints could not meet these criteria, for they described the property in question no further than to say that it had belonged to the “Liberty Athletic Association” and that it was movable property. However, our analysis does not end with this conclusion, for we must determine whether this defect was substantive or informal.

Although the first and second complaints did not adequately describe the stolen property such that appellant might have pleaded an earlier judgment in bar of the prosecution, they did inform appellant of the date of the alleged crime, the owner of the stolen property, and the nature of the crime with which he was charged. Moreover, the first complaint charged him with conspiring with Smith as well, thus informing him from whom he was alleged to have received stolen property. We have found no Pennsylvania cases on point, but we have uncovered authority in at least two of our sister states which hold that such a defect is amendable. In State v. Mallory, 19 Ariz.App. 15, 20, 504 P.2d 556 (1972) the Arizona Court of Appeals held that an information which alleged the crime of receiving stolen property with no more specificity than to set out the elements of the crime as defined in the statute and the date of the alleged offense could be amended by a bill of particulars. In so holding, the Arizona Court of Appeals cited a long line of Arizona cases. Similarly, in State v. LeJeune, 352 So.2d 619 (La., 1977), the Louisiana Supreme Court held that an information which described the stolen property received only as “stolen property .. . belonging to Jerome Moore” was sufficient to inform the defendant of the charges against him where a bill of particulars was provided him prior to trial. We see no reason why in this case the first complaint could not have been amended, or why it was necessary to dismiss it, particularly where appellant could have waived the defect by failing to raise it timely himself. As for the second complaint, we believe that it too could have been amended. Furthermore, it was not even an informal defect to have left the resisting arrest charge off the second complaint, since that charge did not arise “from the same incident,” see Pa.R.Crim.P. 131(b), but occurred only after the police came to arrest appellant for the third time for the same offense. It was not necessary to include it in a complaint with the receiving stolen property charge. Thus, we conclude that both the first and second complaints were improperly dismissed.

Since the first and second complaints were improperly dismissed the lower court erred when it concluded that Rule 1100 began to run anew with the filing of the third complaint, and it should have counted the one hundred and eighty days from the date of the filing of the first complaint. Thus, the Commonwealth’s failure to bring appellant to trial by August 24, 1979 or to file a petition for extension of time asserting its due diligence if it could not do so, violated appellant’s rights to a speedy trial on the receiving stolen property charge under Rule 1100. The lower court erred when it concluded otherwise and we are now constrained to vacate that judgment of sentence and order appellant discharged. There was no error as regards the resisting arrest conviction, however, nor has any been argued. Our order today affects it no way.

Judgment of sentence for receiving stolen property vacated, order reversed and appellant discharged.

      . 18 Pa.C.S. §§ 3925, 5104.

      . The complaint, which was offered into evidence by the Commonwealth at the Rule 1100 hearing on September 25, 1979, read in pertinent part as follows:
      That on or about November 1, 1978, in the County of Allegheny, unlawfully did then and there intentionally receive certain and dispose of movable property, of the property to have been stolen and believing that said property had probably been stolen, the said property not having been received, retained and disposed of by the said actor, with intent to restore it to the said owner thereof, That on and about the 1st day of November ■ 1978 and at divers other times within 2 years last past, with intent of promoting or facilitating the commission of the crime of RSP, unlawfully and feloniously did agree with Matthew Joseph Smith that they or one or more of them would engage in conduct which would constitute such crime or crimes, or an attempt or solicitation to commit such crime, and did an overt act in pursuance thereof, to-wit: the actor committed the aforesaid crime,

      . The third complaint, part of the record before us, reads in pertinent part as follows:
      That on or about October 31, 1978, in the County of Allegheny, unlawfully did then and there intentionally receive certain and dispose of movable property, to-wit: RCA Victor Color Television and an Admiral Color Television a total value of $700.00, of the property of the said West Liberty Athletic Association, then and there knowing said property to have been stolen and believing that said property had probably been stolen, the said property not having been received, retained and disposed of by the said actor, with intent to restore it to the said owner thereof,
      That on or about May 22, 1979, in the County of Allegheny, unlawfully did then and there knowingly, wilfully and forcibly obstruct, resist and oppose one Detective Parsons in making the lawful arrest of Jerry Ardolino for the commission of the offense of Receiving Stolen Property on a warrant issued by Magistrate Joseph James City Magistrate to the said Detective Parsons, then and there being a duly appointed and duly acting police officer in and for the City of Pittsburgh, in the County of Allegheny.

      . Cf. Commonwealth v. Brocklehurst, 491 Pa. 151, 420 A.2d 385 (1980). The Supreme Court affirmed this Court’s decision although its rationale was slightly different. It reasoned that because the first complaint filed in that case was filed against a person of a different name than the suspect that there was only one complaint involved in the case. Thus, it ruled out the analysis developed by Judge Jacobs in Commonwealth v. Mumich, supra, and employed by this writer in Brocklehurst when the case was before this Court. See Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. at 338, 404 A.2d at 1319.

      . See Commonwealth v. Brennan, 264 Pa.Superior Ct. at 209, 399 A.2d at 740.
      And see Commonwealth v. Genovese, 493 Pa. 65, 72 n. 15, 425 A.2d 367, 371 n. 15 (1981) (Opinion by Justice Kaufman citing with approval line of Superior Court cases):
      See Commonwealth v. Leatherbury, 269 Pa.Super. 194, 409 A.2d 431 (1979); Commonwealth v. Brennan, 264 Pa.Super. 206, 399 A.2d 739 (1979); Commonwealth v. Finfrock, 257 Pa.Super. 555, 391 A.2d 621 (1978); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978); Commonwealth v. Lowe, 255 Pa.Super. 78, 386 A.2d 144 (1978); Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978); Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 (1978); but see, Commonwealth v. Garbett, 256 Pa.Super. 488, 390 A.2d 208 (1978) (plurality).

      . Under the ABA Standards for Speedy Trial, the interpretation of Commonwealth v. Whitaker espoused in Commonwealth v. Brennan, supra, would maintain. Indeed, under those standards “the critical distinction ... is whether the dismissal was at the instance of the prosecutor or the defendant.” ABA Standards for Criminal Justice, Speedy Trial, Standard 12-2.2(b) (1978), Commentary at 12.24. And
        see Commonwealth v. Genovese, supra, 493 Pa. at 72 n. 16, 425 A.2d at 371 n. 16.

        And see ABA Standards for Criminal Justice, Speedy Trial, Standard 12—2.3(f) (1978). The comment to that section reads:
      This paragraph must be considered as it related to certain other standards. If a case is terminated prior to charging, then, as provided in standard 12-2.2(a), the speedy trial time limitations would commence running only from the date the defendant is subsequently charged or held to answer.
      [“Charge” in this context refers to a written statement filed in court which accuses a person of an offense and which is sufficient to support a prosecution; it may be an indictment, information, complaint, or affidavit, depending on the circumstances and the law of the particular jurisdiction.] If the case is terminated after charging on motion of the defendant, then, as provided in standard 12-2.2(b), the speedy trial time limitations would likewise commence running only from a subsequent charge or holding to answer. By contrast, the present paragraph provides that dismissal of the charge on motion of the prosecutor only tolls the running of the time until the date the time limitations would commence running as to the subsequent charge had there been no previous charge. If dismissal by the prosecutor were to operate so as to begin the time running anew upon a subsequent charge of the same offense, this “would open a way for the complete evasion” of the speedy trial guarantee.
      This tolling provision applies only when the action of the prosecutor amounts to outright dismissal of the charge. If some other step is taken that keeps the charge outstanding and thus keeps the statute of limitations tolled, as with the nolle prosequi with leave procedure found in some jurisdictions, then the speedy tried time limits are not tolled.
      The “any other offense required to be joined” language, also used in standard 12-4.1, is necessary to prevent evasion by a subsequent charge of an offense that should have been joined with the first charge. In the absence of legislation to this effect, the courts have allowed a new charge based on the same transaction or occurrence. Rule 722(f)(10) of the Uniform Rules of Criminal Procedure and a NDAA standard are in accord with this standard.

        Id., Commentary at 12.32-33. (One footnote inserted in text; remainder omitted).

      . Judge Spaeth’s Opinion in Commonwealth v. Garbett, 256 Pa.Superior Ct. 488, 390 A.2d 208 (1978) purported to follow Whitaker rather than Mumich and Braithwaite. As noted in Commonwealth v. Bren

        nan, 264 Pa.Superior Ct. at 210, n. 4, 399 A.2d at 741, n. 4, Garbett does not affect the Mumich-Braithwaite analysis. Judge Spaeth’s Opinion in Garbett was not joined by any of the other judges on the Court: former President Judge Watkins did not participate; President Judge Jacobs and Judge Hoffman concurred in the result; this writer concurred in a separate opinion; and Judge Price concurred in a separate opinion in which Judge Van der Voort joined.

      . In Commonwealth v. Mumich, 239 Pa.Superior Ct. 209, 361 A.2d 359 (1976) we ruled that the lack of the complainant’s signature on a fornication and bastardy complaint would be construed as a substantive defect because of defendant’s failure to object to the dismissal of the complaint by the magistrate at the preliminary arraignment.
      But see Commonwealth v. Leatherbury, 269 Pa.Superior Ct. 194, 409 A.2d 431 (1979) (Judge Price construed the holding in Mumich to mean that this defect could have been amended pursuant to Rule 150(a) but that the defendant’s silence on the possibility of amendment would be held against him). Commonwealth v. Lardo, 240 Pa.Superior Ct. 107, 368 A.2d 324 (1976) we ruled that the absence of a magistrate’s signature and seal was not a substantive defect in a search warrant. In Commonwealth v. Fitzpatrick, 481 Pa. 385, 392 A.2d 1346 (1978) the Pennsylvania Supreme Court held that where a charge had been omitted from the complaint such omission was a substantive defect precluding the amendment of the complaint. Likewise, this Court concluded in Commonwealth v. Jonnet, 265 Pa.Superior Ct. 315, 401 A.2d 1228 (1979) that writing the wrong Vehicle Code section on a traffic citation was a substantive defect. In the case of Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979), aff'd 491 Pa. 151, 420 A.2d 385 (1980) it was held that the wrong middle name on a complaint was a substantive error, as it was also held that the incorrect naming of a co-defendant was incapable of amendment in Commonwealth v. Thomas, 278 Pa.Superior Ct. 39, 419 A.2d 1344 (1980).

      . Pa.R.Crim.P. 131(b) reads:
      When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.
      (Emphasis added.)