author: CIRILLO, President Judge: McEWEN, Judge, TAMILIA, Judge,

text:
    541 A.2d 347
    COMMONWEALTH of Pennsylvania v. Roland MARKUM, John O’Brien, Howard Walton, Susan Silcox Kathy Long, Ellen Jones, and Anne Marie Breen, Appellants. COMMONWEALTH of Pennsylvania v. Henry TENAGLIO and Joseph Wall, Appellants. COMMONWEALTH of Pennsylvania v. Walter GIES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed May 2, 1988.

      Samuel C. Stretton, West Chester, for appellants.

      Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   CIRILLO, President Judge:

Appellants take this appeal from a judgment of sentence of one day to three months imprisonment imposed by the Honorable John J. Poserina of the Court of Common Pleas of Philadelphia County following their conviction for defiant trespass. We affirm.

On August 10, 1985, as part of an anti-abortion demonstration, appellants pushed their way into the Northeast Women’s Center on Roosevelt Boulevard in Philadelphia, and occupied several rooms there. Once inside, they damaged two aspirator machines and other medical instruments, threw equipment out of a third floor window, and placed “pro-life” stickers on the doors, walls, and ceilings. Appellants refused to leave, even after several requests by the Center’s staff, and were ultimately removed when police arrived and carried them from the scene.

Appellants appeared for trial before the Honorable Mitchell S. Lipschutz of the Philadelphia Municipal Court, and were found guilty. All appellants except Tenaglio and Wall proceeded to a de novo trial before Judge Poserina.

During a hearing on a motion in limine, appellants made an offer of proof in support of their claim that they be allowed to present a defense of justification. Following the submission of briefs and argument on March 24, 1986, Judge Poserina ruled that justification did not lie. Judge Poserina certified the question of justification for interlocutory appeal, but this court denied appellants’ petition and remanded the case for trial.

On September 30, 1986, the jury returned guilty verdicts as to all appellants. On October 20, 1986, Judge Poserina found the remaining appellants, Tenaglio and Wall, guilty after they stipulated to the testimony presented at the jury trial of their co-defendants.

Following sentencing, the appellants were immediately paroled on the condition that they each perform fifty hours of community service, not to be served in any pro-life agencies, and refrain from trespassing on medical facilities that perform abortions. Post-trial motions were filed and denied and this timely appeal followed.

Appellants raise one issue on appeal: whether the trial judge erred in not allowing appellants to present the defense of justification to the jury.

In Pennsylvania, the defense of justification is grounded in statute. 18 Pa.C.S. §§ 501-10. This legislation has several provisions. However, it must be noted that appellants failed to specify which justification provision they deemed applicable to their case. In Commonwealth v. Capitolo, 508 Pa. 372, 381-382, 498 A.2d 806, 810-811 (1985), our supreme court held that a litigant must specify which section of the justification statute their claim is based upon. In Capitolo, the appellants proceeded under § 503; therefore, the court held that any claim under § 510 was waived. Here, where appellants only nebulously claimed justification, without specifically invoking either §§ 503 or 510, their claim may have been waived altogether. However, inasmuch as appellants asserted the defense at trial, in post trial motions, and again on appeal, we will consider the issue to be properly preserved and presented.

Section 503 states:

(a) General rule. — Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(b) Choice of evils. — When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Section 510 states:

Conduct involving the appropriation, seizure or destruction of, damage to, intrusion or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:
(1) this title or the law defining the offense deals with the specific situation involved; or
(2) a legislative purpose to exclude the justification claimed otherwise plainly appears.

The Pennsylvania Supreme Court, in Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985), and Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), addressed the applicability of the justification provisions of §§ 503 and 510, respectively.

In Capitolo, Patricia Capitolo and four others crept under a fence enclosing the Shippingsport Nuclear Power Plant. Once through, they sat down about ten to twelve feet inside of the fence and held hands. They were placed under arrest after refusing requests of plant representatives that they leave the premises. The five sought to present a justification defense under § 503, the general justification provision of the statute, but were refused by the trial judge because they would not have been able to prove that their trespass was justified. They were subsequently convicted of trespass in the Court of Common Pleas of Beaver County-

On appeal, a majority of this court reversed the decision of the trial court, concluding that appellants’ offer of proof met the requirements of § 503 and that they should have been able to present to the jury evidence in support of the defense.

Our supreme court reversed and reinstated the convictions, holding that the defense of justification is available only when the appellee is able to make an offer of proof which establishes:

(1) that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
(2) that the actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm;
(3) there was no legal alternative which will be effective in abating the harm; and
(4) the Legislature had not acted to preclude the defense by a clear and deliberate choice regarding the matter at issue.

Capitolo, 508 Pa. at 378, 498 A.2d at 809 (emphasis ours). The court went even further in stating that

it is essential that the offer meet a minimum standard as to each element of the defense so that if a jury finds it to be true, it would support the affirmative defense — here that of necessity____ Where the proferred evidence supporting one element of the defense is insufficient to sustain the defense, even if believed, the trial court has the right to deny use of the defense and not burden the jury with testimony supporting other elements of the defense.

Id.

After applying these basic principles to the facts of the trespass action, the court concluded that the danger at the nuclear plant was not imminent and that the appellees “could not establish that their criminal conduct was necessary to avoid harm or evil to themselves or others.” Id.

In Berrigan, the Berrigan brothers and six others entered the General Electric plant in King of Prussia, Pennsylvania, where they damaged hydrogen bomb missile components and poured human blood on the premises. Property damage exceeded $28,000. The eight involved were charged and convicted of burglary, criminal mischief, and criminal conspiracy. An offer of proof was made under § 510, (the property crimes provision of the justification statute) to present the defense of justification. The trial judge permitted them to offer their own testimony in support of the defense, but refused to permit them to present expert testimony.

On appeal, this court held that appellants should have been able to present the defense, and present expert testimony in support of the defense.

Once again, our supreme court reversed. By applying §§ 196 and 262 of the Restatement of Torts Second to 18 Pa.C.S. § 510, the court concluded that the Restatement imposes upon § 510 the requirements that the actor reasonably believe that the act in question was necessary to avoid an imminent and public disaster. Berrigan, 509 Pa. at 123-124, 501 A.2d at 229. The court then reiterated the four-part test used in Capitolo and determined that the trial court had properly ruled that the offer of proof was insufficient to establish that the nuclear holocaust that appellees sought to avert was a clear and imminent public disaster.

The court in Berrigan went even further, however, and held additionally that the defense of justification was not available “in situations where the conduct some perceive to engender public disaster has been specifically approved of by legislation making it legal conduct ...” Id.

Abortion has been specifically approved by the Pennsylvania Legislature in the Abortion Control Act, which was adopted in January of 1983. 18 Pa.C.S. §§ 3201-3220. Were it not protected by such legislation, the justification defense would continue to remain unavailable because a woman’s right to abortion is protected by the Constitution of the United States. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Berrigan mandate that a justification defense may not be raised if the asserted “harm” is legal is not dependent upon whether such conduct has been made legal through legislative choice or judicial fiat. We live in a society of laws and no individual is entitled to raise himself above the law. We are each bound by the law no matter its source. Were we free to pick and choose which laws we wished to obey, the result would be a society of strife and chaos. Therefore, even if the legislature had not made a clear choice regarding abortion, the justification defense would be unavailable because abortion is lawful by virtue of the United States Constitution. Certainly, justification may not be asserted as a grounds for interference with a person’s right to free speech even though that right has not been legislatively approved. Free speech has been constitutionally approved, as has a woman’s right to abortion. Democracy allows the citizenry to protest laws of which they disapprove. But they must nonetheless obey such laws or face the legal consequences. To allow the defense of justification to those who willingly and intentionally break the law would encourage criminality cloaked in the guise of conscience.

As the Capitolo-Berrigan test makes clear, there must be a threat of an imminent and public disaster. Appellants’ offer of proof was insufficient as a matter of law to satisfy this four-part test. The use of justification as a defense could be precluded on this ground alone, regardless of the fact that abortion is legally sanctioned.

Appellants wish to produce testimony to establish that life begins at conception. They wish to show scientifically that a fetus as young as eight weeks of age has measurable brain-wave activity. Because Pennsylvania’s Determination of Death Act, 35 Pa.C.S. §§ 10201-10203, provides that death occurs when all brain activity ceases, appellants assert that their evidence would demonstrate that abortion is the taking of a human life, and hence, a “public disaster.” They also claim that the disaster was imminent, not speculative, and that their actions were effective in averting the disaster. Finally, they assert that there was no legal alternative for their actions.

Appellants’ first argument, that abortion constitutes a public disaster, fails. As we have noted, pre-viability abortion is lawful by virtue of state statute and federal constitutional law. The United States Supreme Court, from Roe through its progeny, has consistently held that the state’s interest in protecting fetal life does not become compelling, and cannot infringe on a woman’s right to choose abortion, until the fetus is viable. Roe at 163-164, 93 S.Ct. at 732. Appellants do not suggest that viability and conception are simultaneous occurrences. We find that a legally sanctioned activity cannot be termed a public disaster.

Appellants’ second argument, that the disaster was imminent and that their actions were effective in averting it, similarly must fail. It is unreasonable for appellants to believe that their brief occupation of one center would effectively put an end to the practice of abortion. Appellants’ occupation of the Women’s Center did not stop its operation. Legal abortions continued to be performed in the Center and were available in other medical facilities throughout Pennsylvania.

Appellants’ third contention, that there was no legal alternative to their actions, is misguided. As Judge Poserina noted, “[t]here are obviously numerous means in a democratic society to express a point of view or to attempt to prevent a perceived harm without resorting to criminal behavior.” Appellants were free to peacefully demonstrate outside of the center in an effort to prevent the harm that they perceived from occurring.

Finally, appellants’ offer of proof was insufficient to show that no legislative purpose exists to exclude the justification defense, nor could they, because Pennsylvania law is to the contrary. The Abortion Control Act specifically provides that “[i]n every relevant civil and criminal proceeding in which it is possible to do so without violating the Federal Constitution, the common and statutory law of Pennsylvania shall be construed to extend to the unborn the equal protection of the laws____” 18 Pa.C.S. § 3202(c) (emphasis ours). Clearly, to permit private citizens the right to prevent women from exercising their right to abortion would be a violation of both state statute and federal constitutional law.

As in Berrigan, appellants in the instant case were trying to halt legal conduct. It has been suggested that the justification defense might lie where appellants can show that the conduct which they attempted to halt was illegal. However, even if illegal conduct could be proven, and appellants’ offer of proof contained no allegations that the Northeast Women’s Center was engaging in other than legal abortions, the Capitolo-Berrigan test would prohibit the use of the defense if there were other legal alternatives for abating the harm. Because the Pennsylvania Abortion Control Act specifically proscribes post-viability abortion (with narrow exceptions), any public disaster that such abortions present can be adequately controlled by law enforcement personnel. See 18 Pa.C.S. § 3201(a). Therefore, any claim of justification under § 510 will fail according to the supreme court mandate in Berrigan. Appellants cannot use unlawful means in an effort to stop lawful behavior, no matter how morally reprehensible they feel that behavior to be. “[T]respassing on private property ... is not legally justified by philosophical disagreement. [The justification defense] does not condone ... ad hoc self help which forebodes legal chaos.” Capitolo, 508 Pa. at 381, 498 A.2d at 810.

The appellants are actually requesting that this court countenance civil disobedience, which is defined as:

A form of lawbreaking employed to demonstrate the injustice or unfairness of a particular law and indulged in deliberately to focus attention on the allegedly undesirable law.

Black’s Law Dictionary 223 (1st ed. 1979).

Though, our nation has a long and proud history of civil disobedience, appellants are not in that tradition. From the Boston Tea Party to the abolitionists to conscientious objectors to the sit-ins of Martin Luther King, civil disobedience has often stirred our nation’s collective conscience and spurred us to change or repeal unjust laws. Often, juries refused to convict good men of conscience whose love of justice had motivated them to violate the law. On some occasions, a jury would convict but the judge in recognition of the righteousness of the underlying cause would suspend sentence or issue a nominal find. Abortion demonstrators argue that they are in this tradition and should be treated accordingly. They overlook the key distinction between their actions and the behavior of those cited above.

The true conscientious objector refuses to obey the very law which he claims is unjust. Rosa Parks refused to sit in the back of the bus and “draft dodgers” refused to register for the draft. When prosecuted, they challenged the wisdom, morality and constitutionality of the law in question. They did not employ their objections to that law as an excuse to engage in general or targeted violence. But that is what the demonstrators in this case have done. On this appeal, the demonstrators challenge the applicability of our criminal trespass laws to their activities. But they do not assert that those laws are unconstitutional or unjust. Rather they believe that because they disagree with the practice of abortion they are entitled to deface and occupy property belonging to other persons. How sad that their sense of justice and outrage is so narrowly focused.

Judge Poserina correctly determined that the justification defense would not lie. The action sought to be prevented by appellants was lawful, and as such, could not be prevented by unlawful conduct. Furthermore, appellants’ offer of proof was insufficient to satisfy the four-part Capitolo-Berrigan test for determining when the defense of justification will lie. For these reasons, we affirm the judgment of sentence.

McEWEN, J., concurs and dissents.

TAMILIA, J., dissents.

McEWEN, Judge,

concurring and dissenting:

Since the rulings of both the United States Supreme Court, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and the Pennsylvania Supreme Court, in Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985), preclude the presentation by appellants of the defense of justification, I am compelled to join in the ruling of my distinguished colleague, President Judge Vincent A. Cirillo, the author of the lead opinion affirming the judgment of sentence. I write, nonetheless, so as to express the view that appellants have surmounted three of the four obstacles to presentation of the defense — a view which is, of course, measurably different from the conclusion of the lead opinion that appellants failed to meet any of the four requirements.

While the defense of justification has a number of synonyms, it is “ ‘often expressed in terms of choice of evils: When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil.’ ” State v. Olsen, 99 Wis.2d 572, 576, 299 N.W.2d 632, 634 (1980) quoting La-Fave & Scott, Criminal Law § 50, at 382 (1972). “Determination of the issues of competing values and, therefore, the availability of the defense of necessity is precluded, however, when there has been a deliberate legislative choice as to the values at issue.” State v. Warshow, 138 Vt. 22, 27, 410 A.2d 1000, 1003 (1979) (Hill, J., concurring).

The U.S. Supreme Court, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), held that the constitutional right of privacy of a mother is paramount to the right to life of her unborn child during the first trimester of pregnancy. Thus, this nation’s highest court balanced the competing interest of the mother in terminating her pregnancy against the right to life of the infant, and held that the right of the mother to terminate her pregnancy during the first trimester is paramount to the right to life of the infant. Our state legislature, in response to Roe v. Wade, supra, enacted the Pennsylvania Abortion Control Act, 18 Pa.C.S. §§ 3201-3220, which authorizes first trimester abortions such as those scheduled for August 10, 1985, at the Northeast Women’s Center. The appellants have not asserted that any of the pregnancies scheduled for abortion were beyond the first trimester. See: 18 Pa.C.S. § 3209.

The Pennsylvania Supreme Court directly addressed the protestors’ reliance upon the defense of justification and decreed in Berrigan that “the defense of justification will lie only where the actor offers evidence that will demonstrate:

(1) that the actor was faced with a public disaster that was clear and imminent, not debatable or speculative;
(2) that the actor could reasonably expect that the actions taken would be effective in avoiding the immediate public disaster;
(3) that there is no legal alternative which will be effective in abating the immediate public disaster;
(4) that no legislative purpose exists to exclude the justification from the particular situation faced by the actor.”

Id. 509 Pa. at 124, 501 A.2d at 229.

Thus, an accused who wishes to present evidence in support of the defense of justification must make an offer of proof as to each one of the four specific elements of the defense, namely, efficacy, imminency, lack of legal alternative, and absence of a legislative purpose to exclude the defense. It follows, of course, that the trial court is obliged to preclude any effort to rely upon the defense even if but one of the four elements cannot be demonstrated.

The disaster which appellants sought to prevent was the abortions that would be completed in a very brief time after the women entered the building. While it is to be conceded that a certain number of the women entering the building sought but information, a significant number of women were entering the clinic to effect an abortion. The danger perceived by appellants was, therefore, clear and imminent. Further, were appellants able to prevent the women from entering into the building, their action would have been quite effective in thwarting the immediate disaster appellants perceived as awaiting the women and their unborn children in the clinic. And, of course, appellants had no legal alternative available. Therefore, I conclude that appellants complied with three of the conditions precedent to presentation of the defense of justification.

It is the fourth and final element that impedes the presentation of the defense of justification by the appellants. The fourth condition prescribed by the Pennsylvania Supreme Court in Commonwealth v. Berrigan, supra, 509 Pa. at 124, 501 A.2d at 229, required appellants to establish that “no legislative purpose exists to exclude the justification from the particular situation faced by the actor.” The Pennsylvania Abortion Control Act, 18 Pa.C.S. §§ 3201 et seq., enacted as a consequence of the Roe v. Wade decision of the United States Supreme Court, evinced the intention of the Pennsylvania Legislature to exclude the defense of justification in the situation confronting appellants. Thus, the appellants here did not — in fact, could not — establish the absence of a legislative purpose to exclude the defense of justification.

My eminent colleague, Judge Patrick R. Tamilia, provides an insightful rationale based upon his view that “the Supreme Court, in fixing viability at a point supported by medical knowledge as it existed at that time [1973], ... has left open the question of when the state may intervene, to be dependent upon medical evidence as to viability____” I differ with that interpretation and, in support of my view, note that those who abhor the ruling do so because, contrary to the dissent, the United States Supreme Court held in firm and certain fashion that the right of the mother to terminate her pregnancy during the first trimester is paramount to the right to life of that infant. On the other hand, the rationale of Judge Tamilia is no less a plea and one in which I fervently join, namely, that the United States Supreme Court, in response to accepted medical knowledge, enhanced by the technological improvements occurring during the fifteen years since the evidence was assembled for presentation to the Court in Roe v. Wade, proceed in urgent fashion to reject as outmoded the evidence of viability relied upon in Roe v. Wade.

Nonetheless, I am constrained to concur in the affirmance of the judgment of sentence.

TAMILIA, Judge,

dissenting:

I follow and support the reasoning of the majority in its analysis of the justification defense to the point where it holds that justification defense in abortion is precluded by legislative and constitutional protection. Abortion Control Act, 18 Pa.C.S. §§ 3201-3220. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Abortion is constitutionally protected but it is a qualified protection. Roe, supra. The significant distinction between this case and Commonwealth v. Capitola, 508 Pa. 372, 498 A.2d 806 (1985) and Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985) is that there was no imminent danger in constructing atomic warheads. Abortion stands on an entirely different footing. I believe the defense is available in two respects despite statutory and constitutional limitations. First, if the clinic was processing abortions beyond the time of viability, as established by Roe, the right to protect the life of a fetus in those circumstances would exist within the present legislative and constitutional parameters. While the appellants would base their defense on proof that life begins at conception and that there are measurable brain waves in a fetus as young as eight weeks of age, the Supreme Court in Roe, having established the right to intervene by the state only at the point of viability, their argument as to life beginning as determined by brain wave activity is irrelevant. However, the Supreme Court, in fixing viability at a point supported by medical knowledge as it existed at that time, in my opinion has left open the question of when the state may intervene, to be dependent on medical evidence as to viability at the time at issue. Roe v. Wade was promulgated in 1973. In the intervening years, enormous strides have been made in sustaining life of fetuses outside the womb, who, at the time of Roe, were considered nonviable. In Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the majority summarized the holding in Roe and subsequent abortion decisions as follows:

First, a State has an “important and legitimate interest in protecting the potentiality of human life.” [Roe ] [410 U.S.] at 162, 35 L Ed 2d 147, 93 S Ct 705 [at 731]. Although the interest exists “throughout the course of the woman’s pregnancy,” Beal v. Doe, 432 US 438, 446, 53 L Ed 2d 464, 97 S Ct 2366 [2371] (1977), it becomes compelling only at viability, the point at which the fetus “has the capability of meaningful life outside the mother’s womb,” Roe, supra, at 163, 35 L Ed 2d 147, 93 S Ct 705 [at 732]. See Planned Parenthood of Central Missouri v. Danforth, 428 US 52, 63-65, 49 L Ed 2d 788, 96 S Ct 2831 [2838-39] (1976). At viability this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, “except when it is necessary to preserve the life or health of the mother.” Roe, 410 US, at 164, 35 L Ed 2d 147, 93 S.Ct 705 [at 732].

Id. at 428, 76 L.Ed.2d 702, 103 S.Ct. at 2492.

The dissent, authored by Justice O’Connor, joined by Justices White and Rehnquist, carried the concept of flexibility as to viability beyond that discussed in the majority. The dissent stated:

Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother.
In 1973, viability before 28 weeks was considered unusual. The 14th edition of L. Heilman & J. Pritchard, Williams Obstetrics (1971), on which the Court relied in Roe for its understanding of viability, stated, at 493, that “[attainment of a [fetal] weight of 1,000 g [or a fetal age of approximately 28 weeks gestation] is ... widely used as the criterion of viability.” However, recent studies have demonstrated increasingly earlier fetal viability. It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed, the Court has explicitly acknowledged that Roe left the point of viability “flexible for anticipated advancements in medical skill.” Colautti v. Franklin, 439 US 379, 387, 58 L Ed 2d 596, 99 S Ct 675 [681] (1979). “[W]e recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term.” Danforth, supra, [428 U.S.] at 64, 49 L Ed 2d 788, 96 S Ct 2831 [at 2838].
The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. Moreover, it is clear that the trimester approach violates the fundamental aspiration of judicial decisionmaking [sic] through the application of neutral principles “sufficiently absolute to give them roots throughout the community and continuity over significant periods of time____” A. Cox, The Role of the Supreme Court in American Government 114 (1976). The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues. Although legislatures are better suited to make the necessary factual judgments in this area, the Court’s framework forces legislatures, as a matter of constitutional law, to speculate about what constitutes “accepted medical practice” at any given time. Without the necessary expertise or ability, courts must then pretend to act as science review boards and examine those legislative judgments.

Id. at 456-58, 76 L.Ed.2d at 720-21, 103 S.Ct. at 2506-07.

The significance of these holdings is that Roe was considered in 1973. Akron was argued in 1982, and we now have the case sub judice under consideration in 1988. In the 15 intervening years it is acknowledged that viability has been reduced to below 24 weeks, as opposed to 28 weeks under Roe. While there is no break in the underlying position that viability of the fetus determines when the state interest may be invoked on its behalf, as opposed to conception, the standards applied in Roe are no longer applicable for that determination.

This is the point at which I depart from the majority. Even assuming that a defense of justification based upon conception as put forth by appellant is fruitless because of holdings of Roe and legislative enactments such as the Abortion Control Act, that defense may still be available to late-terin abortions as to viability. Since the majority wisely ignored waiver for failure to specify the justification defense under either sections 503 or 510, we may consider that defense as it applies to the entire spectrum of fetal life where viability is implicated. As Justice O’Connor stated in her Akron dissent, “It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future. Indeed the Court has explicitly acknowledged that Roe left the point of viability ‘flexible for anticipated advancements in medical skills’.” Citations omitted. Id. at 457, 76 L.Ed.2d at 720-21, 103 S.Ct. at 2507.

If viability has significantly been advanced and abortion services continue to apply the 1973 Roe standards, then a state interest in protecting fetal life is likely implicated in some cases. Fetal life is, therefore, protected in those instances and the defense of justification would be available to persons attempting to protect or save a fetus capable of surviving under the advanced medical standards. Unquestionably, clinics and hospitals can and do establish standards and controls to assure that no abortions are performed except in cases in which the fetus could not be viable under advanced medical technology. This may not, however, be presumed in the face of an offer of proof on the defense of justification.

This case, therefore, cannot be decided on the law promulgated under Capitola and Berrigan, supra. There, the danger to life was not imminent and there were no specific individuals who could be identified as being in danger nor could the actions of the protesters be effective in avoiding the greater harm.

In this case, the appellants conceivably could have produced evidence that viability had significantly advanced from the 28 weeks’ criterion of Roe, that a viable fetus, who would survive under the advanced medical technology available, would be terminated and that the actions of the appellants would be effective in avoiding the greater harm as the fetus in that class would have been aborted before legal action would be taken. It is also clear that no legal alternative would have been effective in abating the harm. Thus the denial of the right to pursue the justification defense precluded the appellants from attempting to establish the proof of viability and the inherent right to protect life under the circumstances of this case.

It is acknowledged that this will be a difficult task and the proof may not be forthcoming, despite the offer. However, by rejecting the offer out of hand as to proof of conception, appellants were also precluded from pursuing proof of earlier viability than recognized by the clinic under Roe.

It must be left for another day and to a higher court to pass on the right to intervene under the justification defense as it relates to conception. As of now, this Court, as an intermediate appellate court, is powerless to do so.

I would vacate the judgment of sentence and grant a new trial to permit the appellants the opportunity to invoke the justification defense in respect to the viability standard utilized by the clinic and the likelihood that viable fetuses might be aborted.

      . These appeals were consolidated by orders dated December 29, 1986, and January 27, 1987.

      . Of course, some civil disobedience such as the Boston Tea Party or the work of the abolitionists calls into question the very moral authority of the government. Obviously, this is not what the appellants intended as on this appeal they seek the protection of a statutory defense promulgated by our government.

      . The general defense of justification is usually thought of as the statutory designation of what had traditionally been termed in the common law as the defense of necessity. It might be said that the term "justification” is somewhat more apt than "necessity”; the latter is somewhat misleading since the term "necessity" reflects the notion that the act of the accused was inevitable and unavoidable rather than the voluntary choice of the actor. The defense of justification is also frequently described by the process of its application, such as "choice of evils”, "competing harms”, "compulsion", "balancing of harms", "balancing of evils”, "balancing of competing values”, and "confession and avoidance".


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    541 A.2d 356
    COMMONWEALTH of Pennsylvania, Appellant, v. Ronald MORMAN, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 8, 1988.
    Filed May 2, 1988.

      Frances Gralnek, Assistant District Attorney, Philadelphia, for Com., appellant.
    Roñal Morman, in propria persona.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

The Commonwealth has taken this appeal from an Order of the Court of Common Pleas of Philadelphia County discharging the appellee on his writ of habeas corpus.

We are asked to decide if the Commonwealth in a habeas corpus proceeding, wherein it is alleged that the Commonwealth failed to establish a prima facie case, is restricted to the evidence which was produced at the preliminary hearing.

The appellee, Ronald Morman, was arrested by the Philadelphia Police Department and charged with Theft of Services; Receiving Stolen Property; Recklessly Endangering Another Person; and Risking a Catastrophe. These charges resulted when the Philadelphia Police Department requested that the Philadelphia Electric Department investigate an electric hook-up to a bus operating as a variety store in the City of Philadelphia. After examining the hook-up on September 25, 1986, the Electric Company representative was of the opinion that the hook-up was an illegal one. R.R. at 16a. On that same day, the hook-up was removed and Ronald Morman was arrested.

On October 21, 1986, Ronald Morman was afforded a preliminary hearing before the Honorable Francis P. Cadran of the Municipal Court of Philadelphia. At the preliminary hearing, the Commonwealth presented the testimony of the Electric Company representative who had investigated the allegedly illegal electric hook-up. This representative testified that due to the location of the hook-up in a residential area and the manner in which the hook-up was installed “there was a potential there for injury to anyone who may have been in that area.” R.R. at 21a. At the conclusion of the Commonwealth’s evidence, counsel for Morman argued that the Commonwealth had failed to establish a prima facie case because there was no evidence showing who owned the variety store bus. Thus, Morman’s association with the alleged criminal conduct had not been sufficiently proven by the Commonwealth. The Commonwealth argued that because the Electric Company representative had testified that Morman was arrested on the same day that the hook-up was examined and removed, there was sufficient evidence to hold Morman for trial on the specified charges. R.R. at 26a. The Court found that a prima facie case had been established by the Commonwealth.

Thereafter, Morman filed a Motion to Quash Return of Transcript, contending that the Commonwealth had failed to establish a prima facie case at the preliminary-hearing because no evidence had been presented concerning ownership of the variety store bus. It is clear that the proper means for testing the finding that the Commonwealth has sufficient evidence to establish a prima facie case is to petition the trial court for a writ of habeas corpus. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). In Philadelphia County, such habeas corpus petitions are entitled as Motions to Quash Return of Transcript from the Preliminary Hearing or Motions to Quash. Op. of Trial Court at l. Our review of the record in the instant case indicates that Morman was on bail at the time he filed his habeas corpus petition. In Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980), our supreme court recognized that “restraints on an accused bound over for court and released on bail are sufficient to satisfy the custody requirement of a habeas corpus petition.” Id., 489 Pa. at 587, 414 A.2d at 1047 (citation omitted). See also Commonwealth v. Orman, 268 Pa.Super. 383, 408 A.2d 518 (1979).

A hearing concerning Morman’s habeas corpus petition was held in the Philadelphia Court of Common Pleas on January 21, 1987. At this hearing, the Commonwealth had present a detective who was presumably prepared to testify that Morman had admitted that he was the owner and operator of the variety store bus and that he knew of the hook-up. R.R. at 31a. The Court refused to permit the detective to testify, ruling that Morman’s habeas corpus petition would be decided on the evidence presented at the preliminary hearing alone. The trial court concluded that the Commonwealth had failed to establish a prima facie case against Morman at the preliminary hearing and, as a result, the court granted the writ of habeas corpus, thus discharging Morman. We find that the trial court did err in the case before us and, therefore, we reverse.

The scope of the evidence which may be received in a pretrial habeas corpus hearing has never been specifically addressed by our appellate courts. As a starting point, we must recognize the importance and the history of the writ of habeas corpus in our system of government. “The writ of habeas corpus has been called the ‘great writ.’ It is an ancient writ, inherited from the English common law, and lies to secure the immediate release of one who is detained unlawfully.” P.L.E. Habeas Corpus § 2. See 42 Pa.C.S.A. § 6502(a). In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the United States Supreme Court expressed its view of the principle which underlies the federal constitution’s habeas corpus provision:

Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty ... Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release ...

Id. at 402, 83 S.Ct. at 829. It is beyond question that our government has and, of necessity, must have, the authority and the power to imprison or to otherwise interfere with the personal liberty of an individual when there is a need for such action. However, if the government, without lawful cause, restrains the liberty of an individual, that individual may find himself powerless to secure his own release if it were not for the remedy of the writ of habeas corpus. The writ of habeas corpus exists to vindicate the right of personal liberty in the face of unlawful government deprivation. We note that in our Commonwealth, the Habeas Corpus Act, as enacted in 1785, contained a preamble which expressly recognized the role of the writ of habeas corpus in the protection of personal liberty: “personal liberty is a principle blessing derived from free constitutions of government, and certain methods of proceeding should be prescribed, so that all wrongful restraints thereof may easily and speedily be redressed.” See Commonwealth v. Hess, supra 489 Pa. at 585, 414 A.2d at 1045-1046. Thus, the right to the protections afforded by the writ of habeas corpus have long been part of our Commonwealth’s history. Id.

In the instant case, Morman was afforded a preliminary hearing. The purpose of a preliminary hearing is much the same as the purpose of the pretrial petition for habeas corpus relief. As has often been stated:

The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection____

Commonwealth v. Hess, supra, 489 Pa. at 586, 414 A.2d at 1046 (quoting Commonwealth ex rel. Maisenhelder v. Rundel, 414 Pa. 11, 15, 198 A.2d 565, 567 (1964)). At the hearing on Morman’s habeas corpus petition, the trial court believed its role was to examine the evidence presented at his preliminary hearing and, on that basis, determine whether Morman’s custody was a lawful one. We find that the scope of evidence which a trial court may consider in determining whether to grant a pretrial writ of habeas corpus is not limited to the evidence as presented at the preliminary hearing. On the contrary, we find that the Commonwealth may present additional evidence at the habeas corpus stage in its effort to establish at least prima facie that a crime has been committed and that the accused is the person who committed it. Our conclusion in the instant case is a result of our review of the relevant case law as well as the underlying purpose of the writ of habeas corpus in the pretrial setting.

In Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942), this Court reviewed the grant of a writ of habeas corpus. In that case, Vincent Scolio had petitioned the trial court pursuant to the Act of July 1, 1937, P.L. 2664, 12 P.S. § 1892 et seq. This statute, later repealed, expressly empowered the trial judge to “examine and inquire into the proceedings held and the evidence produced before a committing magistrate and to discharge the prisoner, if the proceedings were not conducted in accordance with the law or the evidence is insufficient to hold him.” Id., 149 Pa.Superior Ct. at 373, 27 A.2d at 706. This Court reviewed the evidence presented at the habeas corpus hearing, which consisted entirely of the evidence produced at Scolio’s preliminary hearing because it did not “appear from the record certified to us that any other testimony was presented.” Id., 149 Pa.Superior Ct. at 374, 27 A.2d at 706. In upholding the grant of the writ of habeas corpus, this Court stated the following:

We have carefully read the testimony in the record certified to us and are of the opinion that it did not justify the order of the alderman holding the relator for court; and, as nothing more was produced before the court below, that it was not sufficient to warrant his being remanded for trial by a petit jury. We do not mean to hold that on a hearing before a committing magistrate or on a habeas corpus hearing, the Commonwealth must produce evidence of such character and quantum of proof as to require a finding by a jury of the accused’s guilt, beyond a reasonable doubt. But it should be such as to present “sufficient probable cause to believe, that the person charged has committed the offence stated”----

Id., 149 Pa.Superior Ct. at 374, 27 A.2d at 707 (citation omitted) (emphasis added). In the statements of this Court as quoted above, it is evident that we interpreted the scope of evidence admissible at the habeas corpus hearing as extending beyond the evidence presented at the preliminary hearing stage. This construction of the scope of evidence is consistent with the nature of the relief which is sought by petitioning a court for a writ of habeas corpus: "... the question on habeas corpus must be directed to the legality of the detention then in effect and from which the release is sought.” Commonwealth ex rel. Levine v. Fair, 186 Pa. Super. 299, 304, 144 A.2d 395, 398 (1958) (emphasis added), rev’d 394 Pa. 262, 146 A.2d 834 (1958). The focus of the court in a habeas corpus hearing is properly upon the legality of the existing restraint on the petitioner’s liberty and not solely upon a review of what occurred at a prior preliminary hearing. In the pretrial setting, the focus of the habeas corpus hearing is to determine whether sufficient Commonwealth evidence exists to require a defendant to be held in government “custody” until he may be brought to trial. To make this determination, the trial court should accept into evidence the record from the preliminary hearing as well as any additional evidence which the Commonwealth may have available to further prove its prima facie case.

We are guided in reaching our decision in the instant case by the opinion of our supreme court in Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d 808 (1986). In Ruza, the appellee had not been provided with a preliminary hearing. As a result, the appellee filed an Omnibus Pre-Trial Motion which included a Habeas Corpus Motion to Quash the Informations due to lack of a preliminary hearing. In Ruza, the following pretrial procedure had taken place:

A hearing was held on the Omnibus Pre-Trial Motion, lasting two days. In its Findings of Fact and Conclusions of Law, the trial court specifically addressed the question of whether, notwithstanding the lack of a preliminary hearing, a prima facie case existed against Appellee. The court found that the evidence adduced at the Omnibus Pre-Trial Hearing was more than sufficient to establish a prima facie case____

Id., 511 Pa. at 64, 511 A.2d at 810. The supreme court, citing Commonwealth v. Hess, supra, held that the trial court had not erred in refusing to discharge the appellee even though appellee had not been provided with a preliminary hearing. The supreme court quoted the following language from Commonwealth v. Hess, supra 489 Pa. at 589-590, 414 A.2d at 1048:

In the unlikely event the district justice and the court of common pleas, having the habeas corpus application, were both in error in their assessment of the Commonwealth’s evidence against the accused, the trial would not proceed beyond the demurrer stage ... If in fact it is determined at trial that the evidence is sufficient to be submitted to the jury, then any deficiency in the presentation would have been harmless.

Ruza, supra 511 Pa. at 65, 511 A.2d at 811. The Ruza court found that because the appellee had “received a pre-trial determination that a prima facie case existed against him” that “all the safeguards that a preliminary hearing affords were observed.” Id. We apply the reasoning of our supreme court in Ruza instantly. Although we need not decide whether the evidence presented by the Commonwealth at Morman’s preliminary hearing was sufficient to establish a prima facie case against Morman, we will assume arguendo that it was not. Even so, the Commonwealth, having obtained a judicial determination that it had established a prima facie case, acted properly in continuing to pursue its prosecution of Morman. Morman petitioned for a writ of habeas corpus and, at that point, the safeguard of a second judicial determination of the sufficiency of the Commonwealth’s evidence against Morman, prior to trial, was afforded. If the Commonwealth can introduce additional evidence at a habeas corpus hearing to fill alleged holes in its prima facie case, then “any deficiency in the presentation before the district justice would have been harmless.” Commonwealth v. Hess, supra 489 Pa. at 589-590, 414 A.2d at 1048. If the habeas corpus court determines that a prima facie case in fact exists against an individual, then the individual has obtained a judicial review of the legality of the government’s restraint upon his personal liberty. The invaluable purpose of the request for habeas corpus relief has thus been achieved.

In the case at bar, the trial court erred in limiting the scope of the Commonwealth’s evidence at the hearing held on Morman’s habeas corpus petition. As a result, we vacate the order of the trial court granting Morman’s motion to quash return of transcript, entered on January 21, 1987, and remand for further proceedings consistent with this opinion.

Jurisdiction is relinquished.

      . It is settled law that the Commonwealth may appeal from an order discharging an accused upon a writ of habeas corpus. Commonwealth v. Hess, 489 Pa. 580, 589, 414 A.2d 1043, 1047 (1980).

      . In Commonwealth v. Orman, 268 Pa.Super. 383, 408 A.2d 518 (1979), this Court held that, without reference to county court procedures, where the substance of a “Motion to Quash the Transcript” is identical to that of a petition for a writ of habeas corpus, the trial court may properly consider the petition a habeas corpus petition and grant relief accordingly.

      . We note the case of Commonwealth v. Marker, 25 Pa.D. & C.3d 119 (1982). In Marker, the Court of Common Pleas of Somerset County considered the precise issue raised by this appeal and decided that in a habeas corpus proceeding in which the Commonwealth’s failure to establish a prima facie case at the preliminary hearing is alleged, the proceeding is not limited to the evidence produced at the preliminary hearing. "Such a restriction would ... be inconsistent with the historical importance and the purpose of the great ‘freedom writ’ ‘to inquire into the cause of detention of any person----Id. at 123.

      . Act of February 18, 1785, 2 Smith’s Laws 275, §§ 1 et seq.; as amended, 12 P.S. §§ 1871 et seq. (1967); repealed by J.A.R.A. effective June 27, 1978, recodified as 42 Pa.C.S.A. §§ 6501 et seq. (1979 Pamphlet).


author: KELLY, Judge:

text:
    541 A.2d 361
    Marsha A. MARTIN, Appellee, v. GRANDVIEW HOSPITAL and Robert J. Lavin, M.D., Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1987.
    Filed May 2, 1988.

      Joseph P. Selfridge, Philadelphia, for appellants.
    Stewart J. Eisenberg, Philadelphia, for appellee.
    Before WIEAND, KELLY and HESTER, JJ.
   KELLY, Judge:

This is an appeal from an order granting plaintiffs petition to reactivate a case which had previously been terminated for inactivity on the docket pursuant to local rule. Because we find that the trial court failed to apply the appropriate “good cause” standard for reactivation of such cases, we vacate the order reactivating the case and remand for further proceedings.

On July 9, 1980, plaintiff initiated this medical malpractice action against defendants Grandview Hospital and Robert J. Lavin, M.D., by filing a complaint with the Arbitration Panel on Health Care. On December 1, 1980 plaintiff filed an election of jurisdiction and the case was transferred to the Bucks County Court of Common Pleas. The court file was somehow misplaced, and on February 6, 1981, plaintiffs attorney assisted the prothonotary’s office in reconstructing the file by supplying the office with copies of the missing documents, including the complaint, the answer and plaintiffs answers to interrogatories.

No further activity appeared on the docket until May 3, 1983, when the docket indicates that the prothonotary sent notices that the action would be terminated within thirty (30) days for failure to prosecute unless one of the parties certified that the case was still active. The parties did not certify the case as active, and on January 17, 1984, the case was marked terminated by the prothonotary.

On February 3,1987, plaintiff filed a petition to reactivate the case; the plaintiff subsequently filed a supplemental petition with accompanying affidavits. Upon consideration of the petition, the defendants’ answer to the petition, and the parties’ memoranda, the trial court on May 20, 1987 granted the plaintiff’s petition and ordered the action reinstated. Defendants filed this appeal.

On appeal, defendants contend that the plaintiffs actions manifested an intention to abandon the case, and the trial court erred in granting the petition to reactivate the case. Our standard of review on appeal from an order granting a petition to reactivate is limited to ascertaining whether the trial court committed an abuse of discretion. Absent an error of law or a manifest abuse of discretion, such an order will be affirmed on appeal. Metz Contracting v. Riverwood Builders, Inc., 360 Pa.Super. 445, 520 A.2d 891 (1987); Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983); see also Comment following Pa.R.J.A. 1901.

Pennsylvania Rule of Judicial Administration 1901, with its stated policy of promoting the prompt resolution of matters pending in the judicial system, mandates the termination of cases which have “been inactive for an unreasonable period of time____” Pa.RJ.A. 1901(a). The rule directs each court of common pleas to formulate local rules for the implementation of the policy. Bucks County Local Rule 900, which was promulgated pursuant to Pa.R.J.A. 1901, provides in pertinent part:

(a) ... [T]he Court Administrator shall compile a list of all pending matters in which there has been no activity recorded on the docket for a period of more than two years____
(b) Upon the completion of said compilation, the Court Administrator shall give written notice to all counsel of record, to any unrepresented parties and to private prosecutors, that the matter will be terminated 30 days from the date of said notice ..., unless a certification of active status if filed before the termination date____
(e) After the expiration of the 30 day periods, ... the Court Administrator shall provide the Prothonotary, ... with a list of all cases to be terminated, and it shall then be the duty of each official so notified to mark their dockets accordingly; thereafter, no action shall be recorded in any terminated matter except by leave of court upon cause shown.

This Court has adopted an “open judgment” standard for reactivation of complaints which were terminated for unreasonable inactivity; the petitioner must show good cause why the case should be reactivated. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977). In order to meet this “good cause” requirement, the petitioner must show that: (1) the petition for reactivation is timely filed; (2) the inactivity is reasonably explained or legimately excused; and (3) facts constituting a meritorious cause of action are alleged. Tessier v. Pietrangelo, 361 Pa.Super. 210, 522 A.2d 88 (1987); Haefner v. Sprague, 343 Pa.Super. 342, 494 A.2d 1115 (1985); International Telephone and Telegraph Corp. v. Philadelphia Electric Co., supra.

The defendants/appellants in the instant case contend that plaintiff failed to meet the requisite elements to prove good cause for reactivating the case. In response, the plaintiff/appellee contends that since the local rule does not expressly require good cause to be shown prior to reactivation of cases, the cases which establish a good cause standard are inapplicable. According to appellee, a trial court may grant reinstatement merely upon application, without requiring a showing of good cause. We disagree; we hold that a petition to reactivate a case terminated for inactivity of record may be granted only upon good cause shown, regardless of whether the local rule expressly requires a showing of good cause.

We find the reasoning offered by this Court in Haefner v. Sprague, supra, applicable:

[Ljocal rules enacted pursuant to Rule 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice. It would follow that reinstatement may be permitted only after meeting an open judgment standard of promptness and merit, otherwise the policy of terminating stale claims as enunciated by Rule 1901 and implemented by local rules would be but an empty fulmination against stale matters pending in the judicial system.

494 A.2d at 1117. (Emphasis added).

In International Telephone and Telegraph Corp. v. Philadelphia Electric Co., supra, the trial court lifted an earlier non pros order and reinstated the complaint. On appeal, this Court reversed, reasoning:

... [T]he trial court ignored the three tests for reinstatement consistently insisted upon by our appellate courts. It proceeded on the assumption that reinstatement should be granted simply upon application. Such a standard would deprive the courts of the protection from stale claims that the Supreme Court of Pennsylvania intended them to have under Rule 1901 of the Rules of Judicial Administration and the local rules of court which that Rule mandated.

378 A.2d at 989. Although the local rule in International Telephone and Telegraph Corp. v. Philadelphia Electric Co. expressly required a showing of “good cause,” we find that the reasoning of that case is applicable to the question presented in the case at bar. We therefore reject appellee’s contention that a petition for reactivation may be granted merely upon application; we find the “good cause” requirement applicable to the instant case, despite the fact that the local rule does not expressly require good cause to be shown for reactivation of a case.

Appellants assert that plaintiff/appellee did not meet any of the three requirements for showing good cause and reactivating the case. Specifically, appellants contend that: (1) the petition for reactivation was not timely filed; (2) plaintiffs did not give a reasonable excuse for the inactivity; and (3) plaintiffs failed to allege the existence of a meritorious cause of action.

The trial court opinion in support of the order makes no mention of the good cause standard. However, an appellate court may affirm the action of a trial court on a different rationale than that advanced by the trial court. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986) appeal denied 515 Pa. 580, 527 A.2d 541 (1987); Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984). Although the trial court did make several relevant findings of fact, we find that these findings are not sufficient to dispose of the question of whether good cause has been shown. We therefore are constrained to vacate the order reactivating the case and remand for consideration of plaintiffs reactivation petition, utilizing the good cause standard.

First, as to the requirement that the petition for reactivation must be timely filed, the trial court found as a fact that the plaintiff did not receive prothonotarian notice of the imminent termination before it was entered on the docket. However, this fact alone does not dispose of the timeliness question. Where the plaintiff does not receive notice of the pending termination, the question of timeliness is resolved by looking to “the date when the plaintiff received actual notice, either from the prothonotary or otherwise, of the dismissal of the action.” Stringer v. Kaytes, 286 Pa.Super. 551, 558, 429 A.2d 660, 663 (1981). Here, the trial court did not make any findings of fact as to the date when plaintiff or her attorney learned the case had been terminated. Without such a fact-finding, we cannot determine whether the trial court acted within its discretion in granting the reactivation petition.

The second element of the good cause standard requires plaintiff to show a reasonable excuse for the inactivity. The trial court did make several relevant fact-findings before concluding that “there was no intention on the part of plaintiff to abandon the matter.” (Trial Ct.Op. at 5). However, the opinion is again devoid of sufficient facts to enable us to determine whether the trial court properly granted the petition.

As stated, supra, the action was marked terminated on January 17, 1984, following a period of inactivity on the docket from February 1981 to January 17, 1984. The trial court found as a fact that certain activity took place on the case which is not reflected on the record; the court found that throughout the spring and summer of 1981, considerable discovery activity took place. This finding alone does not dispose of the second “good cause” prong; the court made no finding regarding the inactivity of record totaling two and one-half years from the summer of 1981 to the termination in January 1984. Accordingly, we again find that there are insufficient facts for us to determine whether plaintiff has met the good cause standard.

The trial court erred in failing to consider the three-part “good cause” test before granting the plaintiffs petition to reactivate the case. We therefore vacate the order reactivating the case and remand to the trial court for consideration of plaintiffs petition in a manner consistent with this opinion.

Order vacated; case remanded.

      . See 40 P.S. 1301.101 et seq., the Health Care Services Malpractice Act.

      . In Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), the Pennsylvania Supreme Court held the mandatory arbitration procedures provided by 40 P.S. § 1301.309 unconstitutional. Upon request of any party, the claim must be transferred to the appropriate court of common pleas.

      . Although an order reactivating a case terminated for inactivity is an interlocutory order, it is appealable as of right under Pa.R.A.P. 311(a)(1). Stawiarski v. Hall, 300 Pa.Super. 67, 445 A.2d 1302 (1982).

      . Many local rules adopted pursuant to Pa.R.J.A. 1901 expressly require a showing of good cause before the case may be reactivated. See for example Philadelphia County Local Rule 130. The Bucks County rule, however, is silent on the issue. See Bucks County Local Rule 900, quoted supra.

      . In their brief filed in the trial court, the defendants/appellants did not expressly cite the "good cause” standard. However, the brief essentially raised two of the same points as are raised on appeal: that the petition was untimely, and that the prolonged inactivity warranted dismissal of the case. Appellants have therefore preserved the issues for appeal. As to the third prong of the good cause standard, requiring the petitioner to allege a meritorious cause of action, we find that appellants have waived a challenge to this prong by failing to raise it in the court below. See Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986); Pa.R.A.P. 302(a).

      . The trial court concluded that this lack of notice was probably a result of a prothonotary error. Indeed, several other prothonotary errors are evident from the record: (1) the notice of pending termination was sent directly to defendants rather than their attorney of record; (2) these notices show that the attorney for plaintiff was "unknown,” despite the fact that plaintiffs attorney had filed an entry of appearance and had previously assisted the prothonotary in reconstructing the court file.

      . Appellee asserts in her brief filed on appeal that “[i]t would truly be error and an abuse of discretion for a lower court to terminate cases where activity has taken place within two years of the termination notice ..Appellee’s focus on the date of the termination notice is misplaced; our cases have required plaintiff to show a reasonable excuse for the inactivity leading to the date of termination. See Stawiarski v. Hall, supra; Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980).


author: BROSKY, Judge:

text:
    541 A.2d 365
    Quadralane NIVENS, on Behalf of John NIVENS, a Minor v. CHESTNUT HILL HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed April 8, 1988.

      Allan Molotsky, Philadelphia, for appellant.
    Donald E. Matusow, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   BROSKY, Judge:

This is an appeal from the order of June 5, 1987, entered on June 10, 1987, which vacated a judgment of non pros which had previously been entered in appellant’s favor on April 2, 1987. Appellant now contends that the vacation of non pros was error. We do not support this view. For reasons stated infra, we affirm.

The matter arises from a medical malpractice suit which was filed by appellee, Quadralane Nivens, on behalf of her minor son, John Nivens, against appellant, Chestnut Hill Hospital, in May of 1983. After four (4) years of pre-trial discovery, the case made its first appearance on the major jury trial list in the March 17, 1987 edition of Philadelphia’s Legal Intelligencer. The case moved into the top ten (10) on March 27, 1987, and was called for trial. Neither counsel for appellant, nor counsel for appellee, was present at the call of the list, and, in accordance with Pa.R.C.P. 218, a judgment of non pros was entered against appellee Nivens and in favor of the appellant-hospital on the court’s own motion. Appellee’s counsel received notice of the entry of non pros on April 1, 1987, and promptly filed, on April 8, a motion to vacate the judgment of non pros. Appellant responded, and, on June 5, 1987, the trial court vacated non pros, and directed that the case be relisted for trial. This timely appeal followed.

A petition to open a judgment of non pros is addressed to the court’s equitable power, and the exercise of those powers will not be disturbed absent an abuse of discretion. Hutchison v. Hutchison, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). However, before a court may open a judgment, the party seeking vacation must demonstrate that: (1) the petition to open was timely filed; (2) the default which occasioned the entry of judgment can be reasonably explained; and (3) the facts constituting grounds for a cause of action are alleged. Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 577, 519 A.2d 500, 503 (1986); Horan v. R.S. Cook and Associates, Inc., 287 Pa.Super. 265, 268, 430 A.2d 278, 279 (1981); Corcoran v. Fiorentino, 277 Pa.Super. 256, 260, 419 A.2d 759, 761 (1980); Dupree v. Lee, 241 Pa.Super. 259, 262, 361 A.2d 331, 333 (1976).

With regard to the initial criterion, the timeliness with which vacation is attempted, there is no dispute between the parties that the motion to vacate was filed expeditiously. It is the second and third criteria that appellant maintains were not satisfied.

With respect to the second criterion, the trial court found a reasonable excuse for the failure of appellee’s counsel to appear at the call of the list, and based its finding upon the following “Notice to the Bar”, which has appeared in some form or other in the Legal Intelligencer since January 2, 1987:

... [I]f counsel has failed to communicate with opposing counsel ... when the case first appeared on the list, and only one counsel appears at the call of the list;
(a) if the counsel ready to proceed to trial represents the plaintiff, the case will not proceed to trial;
(b) if the counsel ready to proceed represents the defendant, plaintiffs case will not be dismissed.
Conversely, if the party appearing has given notice to the opposing party, the case will proceed in the absence of the opposing party. (If you believe that the opposing party will deny receiving such notice, a certified letter or receipt of notice may be advisable.)” (Emphasis supplied.)

The trial court focused upon the failure of appellant’s counsel to contact his opposition, as required by the above notice, to confirm the case’s status, and, citing our Court’s decision in Toczylowski, supra, made the following observations:

... the Court recognizes defendant’s contention that plaintiff has an obligation to learn how and when cases are assigned to trial. It is incumbent upon a Philadelphia practitioner to be familiar with The Legal Intelligencer and its contents, particularly those sections which govern the practice of litigation in the Philadelphia Courts. Toczylowski v. General Bindery Company, et al., 359 Pa. Super. 572, 519 A.2d 500 (1986)....
On the other hand, this Court’s policy of confirming a case’s status “represents a proper, dignified and courteous procedure consistent with the standards which are appropriate for the legal profession,” Cleary v. Paul, 15 Phila. 546, to which the majority of attorneys adhere. Id. at 545. Some attorneys view a failure to appear in court as an opportunity to benefit from a judgment of non pros. This Court believes that the failure to communicate with opposing counsel to confirm the status of the case represents a derelict act which is no less serious than the failure to adequately monitor the published trial list. For this reason, the defendant should not benefit from a non pros so entered____” (Emphasis supplied.)

The trial court thus concluded that the absence of appellee’s counsel from the call was reasonably excused by his failure to receive prior notice from appellant’s counsel. Appellant now contends that the trial court’s reading of Toczylowski is flawed, and is requesting, in essence, a clarification of Toczylowski in light of the new Philadelphia notice policy: it is appellant’s position that the failure of its counsel to give the required prior notice to opposing counsel should be immaterial, in light of Toczylowski’s clear dictates that all Philadelphia trial practitioners must monitor the trial lists in the Intelligencer, and that the failure of appellee’s counsel to appear, hence, was unreasonable per se. We decline, however, to resolve this precise issue, as we find Toczylowski factually distinguishable, thereby obviating any need for a reconciliation, at this time, of Philadelphia’s new policy with that decision.

In Toczylowski, counsel for appellee had not appeared at the call of the list, due to her failure to monitor the major jury trial listings in the Intelligencer. Appellant’s counsel had been present, however, and had requested the entry of non pros. Toczylowski, supra, 359 Pa.Superior Ct. at 576-577, 519 A.2d at 502.

In the matter sub judice, by contrast, appellant’s counsel did not request the non pros, but, rather, due to his own failure to monitor the daily trial list, also missed the listing of this case, and failed to appear when the case was called for trial. Non pros was entered upon the court’s own motion, and not as the result of diligent representation by appellant’s counsel. Hence, we are confronted with a situation wherein appellant is insisting that Toczylowski be strictly enforced against its opponent, while ignoring the negligent non-compliance of its own counsel with that decision’s requirements.

A petition to vacate a judgment of non pros is addressed to a trial court’s equitable powers; where the trial court has vacated non pros, an appellate court will not reverse unless a manifest abuse of discretion, or clear error of law, in its consideration of the three criteria for vacation, has occurred. See Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986); see also Buxbaum v. Peguero, 335 Pa.Super. 289, 293, 484 A.2d 137, 139 (1984). Moreover, we may affirm the trial court if its decision was correct on any ground. Butler v. DeLuca, 329 Pa.Super. 383, 389, 478 A.2d 840, 843 (1984). We now hold, without relying upon the reason given by the trial court, i.e. the failure of appellant’s counsel to follow the new Philadelphia notice policy, that, where a party acts promptly to vacate a non pros which has been entered on the court’s own motion, due to the failure of both sides to appear, the trial court may, as an equitable matter, hold that the moving party’s failure to strictly conform to the Toczylowski requirements for diligent representation, in the face of an innocent oversight, is reasonably excused where the opposing party has displayed a similar lack of due diligence by failing to monitor the list and appear at the same call. Where neither party is prepared to go forward, as here, neither should be permitted to profit from an innocent, albeit negligent, comedy of errors. It has been established law in this Commonwealth that an innocent oversight by counsel may justify the vacation of non pros. See Buxbaum, supra, 335 Pa.Superior Ct. at 295, 484 A.2d at 140.

Moving, then, to the third criterion, appellant contends that appellee’s motion to vacate failed to provide facts constituting grounds for a cause of action. The trial court opinion contains no discussion of the third criterion. However, our review of appellee’s motion indicates that the cause of action is a medical malpractice case, in which it is alleged that minor-plaintiff John Nivens suffered brain damage due to trauma to which he was negligently subjected at birth, at the hands of the defendant-hospital.

Appellant does not assert that such facts, if true, would not provide the basis for a cause of action, but contends that appellee’s failure to date to either identify any expert, or detail the theory of any expert, precludes any finding that the third criterion for vacation has been met, as appellee’s case would have been non-suited had trial proceeded. While we do not deny that appellant might eventually be awarded a non-suit, we find no case support for the proposition that a moving party cannot satisfy the third criterion for vacation in the absence of proof that he would have been able to successfully oppose a motion for non-suit had trial proceeded; the law would only appear to require allegations of fact that facially state a cause of action. We find appellant’s allegations to be sufficient on their face to support the vacation of non pros.

Order affirmed.

      . On December 29, 1986, the decision in Toczylowski v. General Bindery Co., 359 Pa.Super. 572, 519 A.2d 500 (1986), was handed down by a panel of this Court. The case focused upon the criteria for vacation of non pros, and, with respect to the second criterion of "reasonable excuse", held that the failure of trial counsel to monitor the daily trial lists published in the Intelligencer, did not constitute a “reasonable excuse” for counsel's failure to appear at the call of the list. In an apparent response to Toczylowski, the above “Notice to the Bar” now precludes an attorney from taking advantage of his opponent's absence from the call of the list, in the absence of proof that opposing counsel was notified by the appearing attorney whenever the case first appeared on the Intelligencer’s trial list.

      . This, of course, is conditioned • upon the moving party’s ability to allege facts constituting a cause of action, and thereby satisfy the third criterion for vacation of non pros.

      . We would also note in passing that the result urged upon us by appellant would contravene the apparent intent behind the new Philadelphia notice policy. Under appellant's proposed application of
        Toczylowski, defense counsel, aware of the presence of a case on the trial list, could neglect to notify opposing counsel, appear at the call of the list, and, upon the non-appearance of plaintiffs counsel, sit silently as the case is called, refusing to admit to his own presence. Under this scenario, the court would enter a non pros on its own motion, and defense counsel would have obtained a non pros in the absence of notice to plaintiff’s counsel, in violation of the new policy.
      Of course, as we are deciding the matter before us on narrow grounds, i.e. the failure of both sides to appear as precluding application of Toczylowski against appellee, we are not resolving whether the new Philadelphia policy unduly restricts the ability to obtain a non pros pursuant to Rule 218. We would have been presented with that issue had appellant’s counsel appeared at the call of the list, and requested the entry of non pros despite his failure to notify opposing counsel. However, a prior notice policy has been a requirement of practice in other counties of this Commonwealth. Cf. Rynkiewicz v. McGrath, 42 Pa.D & C 396 (Schuylkill Cty.1941) (citing Schuylkill County Local Rule of Court 220.) Clearly, the conditioning of Rule 218 by a prior notice requirement is an issue that must be decided when the appropriate factual scenario presents itself.

      . This statement of law might appear contrary to the holding in Toczylowski However, it must be remembered that, in Toczylowski, plaintiff’s counsel: (1) did not move promptly for vacation of non pros, and (2) had received a letter indicating that her case was being considered for an individual judge assignment, thereby putting counsel on notice that the case was deemed ready for trial and might imminently appear on the trial list, rendering her claim of "innocent oversight” less than credible.