author: VAN der VOORT, Judge:

text:
    439 A.2d 779
    James W. DOUGLAS, George P. Heilig and Blair F. Green, v. John BENSON, Jr., A/K/A John W. Benson, Jr., and John H. McCann, III, T/D/B/A Benson Associates, A Pennsylvania Partnership.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Jan. 5, 1982.

      Edward J. Steiner, Kittanning, for appellants.
    Blair F. Green, Kittanning, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

The appellants are the lessees and the appellees the lessors of two adjacent tracts of coal land in Armstrong County known as the Lawson and Douglas properties. The appel-lees have cancelled the lease because of defaults in appellants’ performance, and have filed suit in assumpsit to recover sums payable by the terms of the contract.

The appellants have counter-claimed, alleging alternatively (1) that they should recover extra costs incurred in performing under the contract because of material misrepresentations by the appellees as to over-burden and quality of coal, or (2) that they are entitled to recover that portion of their expenditures which were allegedly agreed upon in settlement negotiations which preceded this litigation.

The case was tried in the Court below by President Judge House, sitting without a jury. The Judge has filed a narrative summary of his Findings of Fact and Conclusions of Law to the effect that there were no material misrepresentations and no settlement agreement. He has found that the appellees are entitled to recover $29,516.54 in net earned royalties and $34,714.38 in trucking services rendered the appellants, a total of $64,230.92. He has also found that the appellants are entitled to recover the sum of $12,200 advanced by the appellants to the appellee Douglas as a loan but not repaid. Verdicts were returned in these amounts, exceptions were heard and overruled, and judgment was entered in the amounts found in the verdicts. The appellants have appealed because of the failure of the Court to grant the relief requested in their counter-claim.

The written contract between the parties, dated March 5, 1976, leased to the appellants the right to mine all mineable and merchantable coal found under an over-burden of no more than eighty (80) feet at a royalty of $3.00 per ton, and $2.50 per ton where the coal was under an over-burden of more than eighty (80) feet. The appellants were to pay a minimum royalty of $5,000 per month beginning April 1, 1976, whether or not coal was mined, such payments to be credited against future earned royalties. They were also to pay all engineering and drilling costs in mining the properties. The agreement stated that the appellants had been given “all maps, charts, graphs, records, analysis sheets, engineering reports, etc. relating to the Lawson property and the Douglas property.” Appellants were also given the right to use and remodel at their own expense a railroad station adjacent to the Douglas property.

The appellants were obligated to commence mining operations on the Lawson tract within 90 days and to have in place by that time a six yard drag-line, bulldozers, pan and highlifts, as well as all other other necessary mining equipment. The appellee Douglas was given a first option to provide truck transportation for coal mined by the appellants under the agreement up to a total of six trucks, and he was also to be employed as an assistant superintendent at a salary of $300 per week as of the date of commencement of mining operations on the Lawson property.

On January 26, 1976, in anticipation of the agreement which materialized in March, the appellant Benson delivered to the appellee Douglas a check for $12,200 marked “Railroad Building” and a check for $45,000 marked “pre-paid drilling—Lawson”. No contemporaneous writing explained this transaction, and the evidence at the trial on these items was conflicting.

There had been an earlier contract between the parties dated November 5,1975, granting the appellants the right to mine the Lawson property. Negotiations leading to the earlier agreement were begun in August, 1975, and the appellants made a $50,000 payment to the appellees at that time, characterized on the check as “Advanced Royalty on Lawson Properties.” No mining operations were commenced by the appellants within the 30 days required by the November contract, and on January 14, 1976, it was terminated by the appellees because of the default. The 50,000 advance payment was not returned. Shortly thereafter, the parties began oral negotiations to renew their contractual relationship and the March contract resulted.

The appellants defaulted on their commitment under the March agreement to have in place on the Lawson property the mining equipment called for by the contract, and to begin mining that property within 90 days of the date of the agreement. However, the appellants did begin mining operations on the adjacent Douglas tract within the 90-day period by the employment of a contract stripper. These operations continued until an unspecified date in September, 1976. Appellees also paid the minimum royalty of $5,000 a month beginning with an April 1st payment.

Both parties were dissatisfied with operations under the contract. They met in mid-August, 1976, to discuss the basis for ending the contract, returning the properties to the appellees, and stating an account between the parties. Appellants wanted a return of the funds advanced to the appellees and compensation for blasting expense and their loss of a down payment on a drag-line which appellants determined to be unusable on the Lawson property. The appellees wanted payment for coal mined in August and September and for the trucking services rendered by them in hauling that coal for the appellants. No understanding was reached as to the amounts due under either set of claims, but there was discussion and, appellants claim, an agreement to the effect that the account between them should be determined by a neutral accountant or by arbitration.

At this point, appellants undertook to reduce these discussions to a written agreement, and submitted a written draft to the appellees on September 8, 1976. In addition to providing for a return of the properties to the appellees, the draft of agreement provided that the appellants were entitled to $70,000 from which should be deducted the money due the appellees for earned royalties and trucking. The appellants then refused to sign the agreement, and negotiations were broken off.

On September 27, 1976, the appellees notified the appellants that they were in default under the March agreement because of (1) their failure to place the required mining equipment on the Lawson property, (2) their failure to pay the appellee Douglas for trucking services rendered after August 1, 1976, and (3) their failure to pay the appellee Douglas $300 per week from the commencement of mining operations on the Douglas property. The appellants accepted termination of the contract as of that date and surrendered possession of the property. Promptly thereafter, the appellees brought this action in assumpsit to enforce their claims under the contract.

The lower Court, sitting without a jury, heard conflicting testimony as to the intent of the parties with respect to the several sums advanced to the appellants. It made a Finding of Fact to the effect that the $45,000 paid by the appellants on January 26, 1976 was a reimbursement to the appellees for sums expended by them in test drilling on the Lawson property for the benefit of the appellants. It also found that the $12,200 advanced by the appellants to the appellee Douglas on the same day was a personal loan which had not been repaid. Both findings are fully supported by testimony. The trial judge heard the witnesses and had the opportunity to interrogate them on occasion. No contention is made on appeal that these findings were in error.

The $50,000 paid on August 8, 1975 as an advance royalty on coal mined from the Lawson property was claimed by both parties. Conflicting testimony was received as to what the parties had originally intended. However, the Court concluded that inasmuch as the later March 5, 1976 agreement had made specific provisions for the method and extent to which it could be recouped by the appellants, that contact must prevail over any earlier understanding. The contract provided:

“[Appellee] recognizes that the sum of $50,000.00 was paid by [appellant] to [appellee] as advance royalty or for drilling and other costs of [appellee]. Without excepting any liability for repayment, [appellee] agrees that if all the conditions and terms of this contract are being performed by [appellant], [appellant] can deduct .25 cents per ton from the royalty payments due on actual coal mined from all the Douglas properties covered by this agreement when available.”

The Court allowed appellants a credit of $5,410.60 at the rate of $.25 per ton on royalties due on 21,642.38 tons mined by the appellants. This finding is not challenged on appeal except by appellants’ contention that the contract was superseded by the settlement negotiations hereinafter considered.

The Court recognized that this determination involved a forfeiture of the balance of the payment but commented:

The Court must recognize that these parties were all experienced in coalfield transactions and that they dealt at arm’s length. Although the bargain finally struck in March, 1976 may now appear to defendants to have been a bad bargain or even a one-sided bargain, there must have been good and sufficient reason for them to enter the agreement at the time it was made. The Court makes these observations only to point up the fact that we must interpret and enforce the bargain as made and not as it could have been made or as defendants or plaintiffs may wish that it had been made.

The Court further found that $29,516.54 was due the appellees as royalties on coal mined after crediting the appellants with the monthly advance royalty payments and the $.25 per ton credit above referred to. The Court also found that $34,714.38 was owing to the appellees for trucking services, a total due appellees of $64,230.92. The Court likewise awarded the appellants the sum of $12,200 on the finding that this sum was advanced to the appellee Douglas as a loan on January 26, 1976 but had not been repaid. None of these findings are questioned on appeal.

The appellants contend that they should have been awarded a judgment based on their counter-claims (1) that the appellees materially misrepresented the quality of the coal to be mined and the nature of the over-burden, which misrepresentations caused them additional expense, and (2) that the settlement discussions of August 1976 amounted to a verbal amendment of the March contract which had the effect of substituting its terms for those of the contract.

The misrepresentations relied upon are said to have been made by the appellee Douglas prior to the signing of the contract, to the effect that the coal would have an average heat content of 14,000 B.T.U., that it would be low in both sulphur and ash, and that it would be a superior coking coal, mineable by stripping with no rock over-burden, all in all “the best coal in Pennsylvania”.

The appellants offered extensive evidence in support of their contention that they had been misled by the appellee Douglas as to the nature and extent of the over-burden and as to the quality of coal to be mined. This evidence was disputed by the appellees. The trial Court heard and, on occasion, interrogated the witnesses. It came to the conclusion that any statements made by Douglas were made as a description of the coal and were not intended to be representations as to its suitability to the appellants’ needs. It likewise found that there had been no reliance on representations by Douglas as to the amount or quality of coal, the amount of over-burden, or the presence or absence of rock in the over-burden.

These findings are not only supported by testimony, but are strongly corroborated by surrounding circumstances. The appellants had access to, if not possession of, the maps and drilling records of the appellees with respect to the property. They were in possession of the Lawson property under lease in November and December of 1975 under the November agreement, and had personally inspected the property at that time. The appellants were experienced coal operators, the owners and principal officers of Kitt Coal Company which was engaged in buying, washing, blending and selling coal of various grades to large customers.

The Court’s holding that there had been no misrepresentations made to the appellants concerning the over-burden or the quantity or quality of coal finds definitive confirmation in Paragraph 24 of the March contract which provided:

“24. Integration clause. This is the entire agreement between the parties, covering everything agreed upon or understood in the transaction. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind as conditions or inducements to the execution hereof, or any in effect between the parties. No change or addition is to be made to this Agreement, except by written agreement executed by the party to be charged.”

The appellants’ second argument is that the contract was verbally changed by the settlement negotiations which took place in August. That position faces both legal and factual difficulties. Legally, it is predicated upon the right to verbally amend a written agreement which contains a provision that it can only be amended in writing. While it is true that a written contract prohibiting a non-written modification may nevertheless be modified by a subsequent oral agreement, there must first be an intent to waive the contract requirement that amendments be in writing. C.I.T. Corporation v. Jonnet, 419 Pa. 435, 438, 214 A.2d 620, 622 (1965). Another case involving a contract of sale and purchase of real estate which contract contains a clause requiring that any amendment be in writing is Schwoyer v. Fenstermacher, 251 Pa. Superior Ct. 243, 380 A.2d 468 (1977). In Fenstermacher, a date (January 14, 1972) was set for closing and time was expressly made of the essence. The seller orally agreed to postpone the closing date until such time as the attorney (who was acting for both seller and buyer) had completed the title search. We held there that the seller by her conduct waived the requirement of the closing date being January 14, 1972 and waived the provision that time was of the essence.

While the result in Fenstermacher is different from that in the instant case (because the court found waiver), our decision here (where we find no waiver) is in harmony with the ruling in Fenstermacher, i.e., that a party by conduct may modify a written agreement without a writing if and when his conduct clearly shows an intent to waive the provision prohibiting non-written modification.

Even if the lower court had accepted the appellants’ contention that the parties had reached a verbal agreement, there was no evidence by anyone that the parties had consciously intended to waive the requirement that amendments must be in writing. The fact that they undertook to reduce the negotiations to writing would suggest that they did not intend to make a verbal amendment. And if the parties contemplated that their agreement was not to be considered complete until reduced to writing, no modified contract exists until the execution of that writing. Essner v. Shoemaker, 393 Pa. 422, 425, 143 A.2d 364, 366 (1958).

Nor do the facts bear out the appellants’ contention that a verbal agreement had in fact been reached in August. The central question at issue, namely, the amount to be paid appellants as reimbursement for their cash advances to the appellees and for the cost of blasting rock over-burden and making a down payment on a drag-line, was not answered. The negotiations got no further than the concensus that the matter might have to be referred to a neutral accountant or to arbitration for resolution.

Even if it were accepted that the appellees had agreed to that procedure, subsequent events demonstrated that the appellants had not agreed. When the appellants undertook to reduce the verbal discussions to a written agreement, they ignored third party adjudication and substituted $70,-000 as their claim, and stuck to that position until the appellees called off negotiations, gave notice of cancellation and entered suit. While it would be possible for verbal negotiations to become a binding commitment before being reduced to writing, there must be a mutual agreement as to the negotiated terms.

Plainly the parties undertook to reach a written agreement amending the contract terms, but failed to do so. Equally evident, the written document which followed the negotiations demonstrates that the parties had not reached a verbal agreement on the most fundamental aspect of the negotiations, namely, the payment of money.

As a consequence, the court found that the contract had not been verbally amended in the August negotiations, and determined the amounts payable to each party under the terms of the March 5 contract. We reach the same conclusion.

Affirmed.


source: Caselaw Access Project

author: LIPEZ, Judge:

license: Public Domain

text:
    439 A.2d 784
    Anna Dechet PATWARDHAN v. William BRABANT, Appellant, and The Title Insurance Corporation of Pennsylvania. Appeal of William BRABANT.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed Jan. 5, 1982.

      Robert J. Kupits, Doylestown, for appellant.
    Ivan J. Krouk, Philadelphia, for Patwardhan, appellee.
    Randolph Scott, Warrington, for Title Ins. Corp., appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

Plaintiff, Anna Dechet Patwardhan, entrusted the care and management of her home and -various rental properties to the defendant, William Brabant, from November 1973 until June 1974 while she was in Germany. By the time plaintiff returned, her home had been damaged by a serious fire caused by the defendant’s negligence; significant items of personal property had been removed from her home; and various rental receipts, security deposits, insurance proceeds and other funds had not been remitted to her. Plaintiff instituted an action in trespass and assumpsit against the defendant. Since the defendant chose not to defend the action, a default judgment in the amount of $65,056.14 was entered against him. No post trial motions were filed or appeal taken.

Thereafter the plaintiff ordered the issuance of a writ of execution against the defendant and the Title Insurance Corporation of Pennsylvania as garnishee, seeking to attach an escrow fund in the name of the defendant and Kathy Brabant, his wife. This fund arose out of the sale of a property owned by the defendant and his wife as tenants by entireties. After the hearing the court below ordered judgment be entered in favor of the plaintiff and against the garnishee for the sum held in escrow on the grounds: that the funds used to purchase the property, giving rise to the judgment for the plaintiff and against the defendant, were purloined from the plaintiff; and that these funds having been traced into the hands of the garnishee, were therefore available for the purpose of satisfaction of plaintiff’s judgment. Defendant appeals. We decide that the failure to join the wife as an indispensable party was a fatal defect.

Pa. R.C.P. Rule 1032 provides:

A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, except
(1) • • •
(2) that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.

“By definition an indispensable party is one whose presence is essential for the granting of relief.” Goodrich Amram 2nd § 1032.6. “[A] party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.” Powell v. Shepard, 381 Pa. 405, 412, 113 A.2d 261, 265 (1955). “[T]he absence of an indispensable party goes absolutely to the court’s jurisdiction and the issue should be raised sua sponte.” Tigue v. Basalyga, 451 Pa. 436, 438, 304 A.2d 119, 120 (1973). It may be raised at any time. Hartley v. Langkamp and Elder, 243 Pa. 550, 90 A. 402 (1914). Obviously the wife’s rights here were impaired and hence she was an indispensable party. Pursuant to Pa. R.C.P. Rule 2227 the joinder of the wife under the circumstances was mandated. See Magee v. Morton Building & Loan Ass’n, 103 Pa.Super. 331, 158 A. 647 (1931).

It is well settled that entireties property is unavailable to satisfy the claims of the creditor of one of the tenants. However, a conveyance in fraud of creditors may be appropriately attacked, but the proceedings must conform with proper procedures. Patterson v. Hopkins, 247 Pa. Super. 163, 371 A.2d 1378 (1977).

We shall not dismiss the action, but shall vacate the judgment against the garnishee and remand to enable the plaintiff to take the necessary steps to join the wife as a party.

Judgment against garnishee vacated, and case remanded for further proceedings. Jurisdiction relinquished.

PRICE, J., did not participate in the consideration or decision of this case.

      . Indeed the effect on one’s rights may be of constitutional dimension. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).

      . Rule 2227 provides:
      (a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.


author: SUGERMAN, Judge:

text:
    439 A.2d 786
    COMMONWEALTH of Pennsylvania, v. Albert LIVERPOOL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1979.
    Filed Jan. 5, 1982.

      Franklin A. Wurman, Philadelphia, for appellant.

      Val Pleet Wilson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County and Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

   SUGERMAN, Judge:

On December 12, 1977, Appellant was found guilty at a bench trial of Robbery, Recklessly Endangering Another Person, Weapons Offenses, and Possessing an Instrument of Crime, all such charges stemming from an armed robbery perpetrated by Appellant. Post trial motions were filed, argued and denied, and Appellant was sentenced upon the firearms violations to a term of imprisonment of 2 to 5 years to an identical, concurrent sentence upon the possession conviction, and to a 7-year concurrent term of probation upon the robbery conviction. On appeal, Appellant asserts error in the refusal of the suppression court to suppress an in-court identification of Appellant and he also challenges the sufficiency of the evidence.

I.

To fully comprehend the issue raised by Appellant concerning the assertedly tainted identification, we must briefly recount the facts, and from the trial record we observe the following.

On May 24, 1977, Appellant entered Syreeta’s Bar, located at 26th Street and Girard Avenue, in the City of Philadelphia, and took up a position at the bar some three feet from a patron, one William Parsons. The Appellant remained in that position for a period of four or five minutes, as both men watched a television program in progress.

Another patron, one Elmer Dunbar, then entered the bar, whereupon Appellant produced a handgun and directed Mr. Parsons to go behind the bar and give the money to Appellant. Parsons refused, and Appellant then ordered Mr. Dunbar and Mr. Parsons into the restroom advising Parsons that if he failed to do so, Appellant would “blow” his “head off”. Both patrons understandably complied and remained in the restroom for several minutes. Mr. Parsons eventually came out of the restroom and observed that Appellant was gone, along with some liquor and the television set.

The crime was quickly reported to the police and within three hours of the event, Detectives Culbreth and Frome of the Philadelphia Police Department, assigned to the investigation, were advised by the owner of Syreeta’s Bar that Appellant was one of the patrons in the bar earlier that night. Upon receiving such information, Detective Culbreth prepared a photographic array from police photographs on file with the Philadelphia Police Department and presented the array to Mr. Parsons within a few hours of the crime. Parsons identified a photograph of Appellant as a photograph of the perpetrator. Appellant was subsequently arrested and a preliminary hearing was scheduled to be held on June 1, 1977.

On that date, immediately prior to the hearing, Appellant’s counsel requested a lineup. The preliminary hearing judge refused counsel’s request, but continued the hearing to a later date. Eight days thereafter, however, the Commonwealth, without notice to Appellant’s counsel, conducted a lineup at the Philadelphia Detention Center where Appellant was then incarcerated. Mr. Dunbar, one of the patrons in Syreeta’s Bar on the night in question, was the only Commonwealth witness who appeared at the lineup and he failed to identify Appellant.

Appellant’s preliminary hearing was finally held on July 20, 1977. Both Mr. Parsons and Mr. Dunbar were present, but only Mr. Dunbar was called as a witness. Although as noted, Mr. Dunbar had failed to identify Appellant at the lineup, he identified Appellant at the hearing and based upon his testimony, Appellant was held for trial. Mr. Parsons, although not called as a witness, remained in the audience throughout the hearing, and presumably observed Appellant and heard Mr. Dunbar’s identification testimony.

Pre-trial, Appellant’s counsel filed a Motion to Suppress the identification of Appellant at trial by Mr. Dunbar, on the ground that Dunbar’s identification testimony as given at the preliminary hearing resulted from the “suggestive atmosphere” of the preliminary hearing. Counsel’s suppression motion also requested the suppression of Mr. Parsons’ identification testimony to be given at trial on the ground that he did not attend the lineup held on June 7, 1977, and thus did not make a “proper” identification of Appellant. Appellant’s Motion to Suppress Testimony Regarding Identification, at 2.

At the pre-trial hearing on Appellant’s Motion to Suppress, counsel stipulated to the facts and thereupon argued their respective positions, Appellant’s counsel asserting that the presence of Mr. Parsons at the preliminary hearing when Mr. Dunbar identified Appellant was in some fashion, suggestive. Following argument, the Suppression Court denied the Motion to Suppress Parsons’ identification testimony. Trial thereafter commenced, and Mr. Parsons, the only witness called by the Commonwealth, identified Appellant as the perpetrator of the crimes on trial.

On appeal, Appellant contends that (1) the failure of the Commonwealth to require Mr. Parsons to be present at the lineup, and (2) permitting Mr. Parsons to be present at the preliminary hearing when Mr. Dunbar identified Appellant, have in combination so tainted the Parsons’ in-court identification that the same should have been suppressed. Appellant also challenges the sufficiency of the evidence.

(1)

Appellant, first argues that the failure of the Commonwealth to require Mr. Parsons to be present at the lineup conducted at the Philadelphia Detention Center tainted the proceedings. It is beyond cavil that a defendant in Pennsylvania is afforded no constitutional right to participate in or insist upon a pre-trial lineup. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979); Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Evans, 460 Pa. 313, 383 A.2d 743 (1975); Commonwealth v. Walker, 275 Pa.Super. 311, 418 A.2d 737 (1980). As Appellant has no such right, we fail to comprehend the nature of the right violated by the failure of the Commonwealth to produce specified persons at a lineup, or the prejudice arising from such failure.

We again observe that within several hours of the event, Mr. Parsons identified Appellant in a photographic lineup. Appellant does not contend that such lineup was suggestive or otherwise tainted. The appropriate forum in which to test Mr. Parsons’ identification was of course the trial court. We are not aware of any authority and Appellant cites none requiring a witness who identified a defendant at a photographic lineup to first participate in a physical lineup before testifying at trial. In summary, we find no merit in Appellant’s first contention.

(2)

Appellant next contends that Mr. Parsons’ identification testimony, as given at trial, was impermissibly tainted as a result of his attending Appellant’s preliminary hearing and witnessing Mr. Dunbar identify Appellant. Appellant apparently argues that the confrontation at the preliminary hearing without more, is itself impermissibly suggestive and a basis for suppressing Mr. Parsons’ identification at trial.

The Supreme Court and this Court have repeatedly rejected the concept that preliminary hearings are inherently suggestive, and the mere fact that an initial identification occurs in that setting does not conclusively establish that the identification was the result of suggestive influences. See, e.g., Commonwealth v. Floyd, 494 Pa. 537, 431 A.2d 984 (1981); Commonwealth v. Sexton, supra, (collects cases); Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979); Commonwealth v. Farrell, 265 Pa.Super. 41, 401 A.2d 790 (1979); Commonwealth v. Tate, 229 Pa.Super. 202, 323 A.2d 188 (1974). Appellant advances no specific evidence of suggestiveness, taint or prejudice and we discern none in the record.

Of similar significance, an in-court identification although tainted during the course of the proceedings is admissible if, considering the totality of the circumstances, it has an independent origin sufficiently distinguishable from the impermissible pre-trial encounter so as to be purged of any taint of that initial illegality. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Wiley, 288 Pa.Super. 397, 432 A.2d 220 (1981); Commonwealth v. Williams, 274 Pa.Super. 464, 418 A.2d 499 (1980).

In Commonwealth v. Ransome, supra, the supreme court explicated the principle thusly:

“.. . we recently reviewed this area of the law in Commonwealth v. Sexton, [supra] 485 Pa. 17, 400 A.2d 1289 (1979). After reviewing recent decisions of the United States Supreme Court, we concluded that the suggestiveness of a challenged confrontation is only one factor to be considered in determining the admissibility of identification testimony. Suggestiveness alone does not warrant exclusion. Instead “[i]t is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which [is] the basis of the exclusion of evidence.” Id., 485 Pa. at [22], 400 A.2d at 1291, quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375 [381], 34 L.Ed.2d 401 (1972).
The reliability of a challenged identification is to be judged under a test employing the totality of the circumstances. The factors relevant to determining the reliability of the identification are:
. .. the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).”

Id., 485 Pa. at 495-496, 402 A.2d at 1382.

Instantly, Mr. Parsons testified that Appellant sat in front of him at the bar for four or five minutes at a distance of not more than three feet. The lighting in the room was more than adequate to permit Mr. Parsons to observe Appellant closely and at length. The two engaged in several face-to-face conversations before Appellant drew his weapon. Although subjected to vigorous cross examination on the subject, Mr. Parsons’ identification remained firm and unshaken.

We are satisfied that the totality of the circumstances, as gleaned from the trial record, reveals with clarity that Mr. Parsons’ in-court identification was independently based upon observations made by him at the scene of the crime so as to preclude a likelihood of misidentification and was not affected by his attendance at Appellant’s preliminary hearing. Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411; Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855, 859-60 (1980); Commonwealth v. Ransome, supra; Commonwealth v. Fowler, 466 Pa. 198, 201, 352 A.2d 17, 21 (1976); Commonwealth v. Williams, supra. And see, United States v. Higgins, 458 F.2d 461 (3d Cir. 1972). We are satisfied that under either analysis, Mr. Parsons’ identification testimony was thus properly received in evidence at Appellant’s trial and we perceive no error.

II.

Appellant lastly contends that the evidence adduced at trial was not sufficient to permit the fact finder to find him guilty of the crimes charged. Appellant bases his assertion of insufficiency upon the ground that the identification testimony of Mr. Parsons, the only witness who testified at trial, was “equivocal”, at best, or alternatively, that regardless of Parsons’ identification testimony, the evidence was simply insufficient. As we find no substance in either ground, Appellant’s sufficiency challenge must fail.

The test for the sufficiency of the evidence is whether accepting as true all the evidence and all reasonable infer-enees deductive therefrom upon which the trier of fact could have based its verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt; and in reviewing the evidence we must consider it in the light most favorable to the verdict winner. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980); Commonwealth v. Graves, 275 Pa.Super. 557, 419 A.2d 41 (1980).

The most cursory review of the trial record reveals not the slightest equivocation in Mr. Parsons’, identification testimony. Parsons testified at length concerning his observations of Appellant and the events in question. His testimony during both direct and cross examination was precise, positive and unshaken as he described Appellant’s physical features, clothing and movements. The course of conduct in which Appellant engaged as described in detail by Mr. Parsons clearly revealed each element of each of the crimes with which Appellant was charged, and Mr. Parsons’ testimony, although the only evidence introduced at trial, more than justified the trial judge, as the fact-finder, in finding that Appellant was guilty of such crimes beyond a reasonable doubt.

Finding all of Appellant’s contentions to be baseless, the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 6101, et seq.

      . 18 Pa.C.S.A. § 907.

      . At no stage of the proceedings has Appellant challenged the photographic “lineup” wherein Mr. Parsons identified Appellant as impermissibly suggestive or otherwise infirm. See, generally, Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979).

      . Appellant correctly notes that the right of a defendant to the presence of counsel at a lineup attaches at the time of arrest. Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Knox, 273 Pa.Super. 563, 417 A.2d 1192 (1980). It was therefore inappropriate for the Commonwealth to conduct a lineup at the Philadelphia Detention Center without notice to Appellant’s counsel. Appellant does not suggest, however, that the Commonwealth’s failure in any manner infringed upon Appellant’s due process or other rights, and we find the omission harmless.

      . Nearly the entire argument was directed at the question of whether Mr. Dunbar’s identification should be suppressed until the assistant district attorney advised Appellant’s counsel that the Commonwealth did not intend to call Mr. Dunbar as a witness at trial.

      . Appellant’s counsel did suggest at argument before the suppression judge that, as the Commonwealth did not intend to call Mr. Dunbar at trial, the Commonwealth was thereby conceding that Dunbar’s credibility was “damaged” by his failure to identify Appellant at the lineup. Counsel then argued that the Commonwealth intentionally caused Mr. Parsons to be absent from the lineup but required him to appear at the preliminary hearing in order that he might hear Mr. Dunbar identify Appellant. Finally, counsel impliedly argued that Parsons’ identification testimony, to be given at trial, was thus based upon the preliminary hearing testimony of the “damaged” witness, Dunbar. The suppression judge was no more impressed with the logic underlying these arguments than are we.

      . In his brief filed here, Appellant’s counsel describes the Commonwealth’s conduct as a “subterfuge”, and suggests that such conduct presents “a scenerio of deception and underhanded conduct by the Commonwealth which should shake the conscience of the court”. Appellant’s Brief at 7.

      . In Sexton, the court held that the trial court abused its discretion in refusing a pre-trial request for a lineup as to the only eye-witness to the crime who first identified appellant. Obviously, Sexton has no application to the case at bar. See, Commonwealth v. Walker, supra, 274 Pa.Super, at 317, 418 A.2d at 741-42.


author: PER CURIAM:

text:
    439 A.2d 791
    Edwina JARRETT, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Jan. 5, 1982.

      J. Joseph Mellace, Philadelphia, for appellant.
    Norman Hegge, Jr., Philadelphia, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

The appeal in this case was taken from an Order of November 7, 1979, which sustained appellee-defendant’s preliminary objections and struck one count of appellant’s complaint. Recognizing after oral argument that the substantive issues presented in this appeal were currently before our Supreme Court in D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, we held this case pending the Supreme Court’s decision in DAmbrosio. Appellee did not challenge the propriety of this appeal either in its brief or by motion to quash, and we did not discover that the appeal was interlocutory until we examined the case after DAmbrosio was decided. As a result, disposition of this case has been delayed.

An order dismissing one count of a multiple count complaint is not appealable. Mitchell v. Center City Cadillac, 287 Pa.Superior Ct. 350, 430 A.2d 321 (1981).

Appeal quashed.

      . D’Ambrosio, 494 Pa. 501, 431 A.2d 966 (1981) was decided on July 8, 1981.


text:
    439 A.2d 791
    RUMINANT NITROGEN PRODUCTS CO. v. J & M MACHINERY CO., INC., Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed Jan. 5, 1982.
    B. Patrick Costello, Greensburg, for appellant.
    Jack C. Younkin, Shamokin, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from an order granting partial summary judgment for appellee. The order of the lower court reads as follows:

AND NOW, to wit: this 22nd day of May, 1980, upon consideration of the pleadings, depositions and defense affidavits in the above matter, it appearing to the Court that the defendant, through its president, Miley Brantho-over, has admitted owing part of the amount complained for, Summary Judgment is hereby entered in favor of the plaintiff against defendant in the amount of $8,859.13, with interest from September 4, 1975. The balance of plaintiff’s Motion of Partial Summary Judgment is hereby dismissed, and the Prothonotary is directed to list this case for trial.

We cannot reach the merits of this case because the appeal is interlocutory and not appealable. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). The order was not final and appellant was not put out of court.

Accordingly, the appeal is quashed.

PRICE, J., did not participate in the consideration or decision of this case.


author: HESTER, Judge:

text:
    439 A.2d 792
    KEYSTONE BOILER WORKS, INC., Appellant, v. COMBUSTION & ENERGY CORPORATION and Philadelphia Coke Company Inc. and NL Industries, Inc.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1981.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied April 23, 1982.

      John H. Colehower, Philadelphia, for appellant.

      John A. Wetzel, Philadelphia, for appellees.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   HESTER, Judge:

This is an interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(1), from an Order of the Court of Common Pleas of Philadelphia County, dated November 27, 1979, granting appellee’s, Combustion & Energy Corporation, Petition to Open a Default Judgment entered against it on April 4, 1979.

On February 27, 1979, appellant, Keystone Boiler Works, Inc., filed its complaint in assumpsit against appellee seeking the balance due for the sale, delivery and installation of a Boiler Forced Draft Fouled Air Duct System. Prior to the filing of the complaint, on February 12, 1979, appellant’s counsel wrote to appellee’s President, Jerry Bernstein, advising him of appellant’s intent to institute suit and he enclosed a copy of the complaint. Service of the complaint was effected upon Mr. Bernstein in Brooklyn, New York on March 3, 1979, by certified mail, pursuant to 42 Pa. C.S.A. Section 5323.

Mr. Bernstein referred the complaint to his New York counsel, who advised that he in turn would forward the matter to Philadelphia counsel for disposition.

On April 4, 1979, since no answer had been filed, appellant filed a default judgment against appellee, at which time the Prothonotary’s notice of default judgment was sent to ap-pellee pursuant to Pennsylvania Rule of Civil Procedure 236. On April 24, 1979, appellant’s counsel sent a letter to Mr. Bernstein, with a copy of the relevant docket entries enclosed, and requested that Mr. Bernstein contact him within 10 days. The letter stated in relevant part:

“Unless we hear from you within 10 days of the date of this letter, we will transfer the record to our New York counsel who will initiate proceedings in a local court to execute on the judgment.”

Appellant was granted a Writ of Attachment concerning appellee’s accounts receivable in Pennsylvania against Philadelphia Coke Company, as garnishee, on June 29, 1979.

Finally, on July 13, 1979, appellee filed its Petition to Open, and the lower court granted appellee leave to take depositions in order to support its petition. Prior to July 13, 1979, appellee took no action, formally or informally, in this matter.

The appellee attempted to depose its New York counsel, but New York counsel refused to submit to a deposition. Instead, the appellee mailed to the lower court a letter from its New York counsel addressed to its Pennsylvania counsel, which purported to explain the failure to file an answer. Said letter stated, in relevant part:

“The mistakes I made in handling the case were caused by a confusion in my record keeping, change of personnel, and faulty memory on my part.”

Appellant never had the opportunity to depose New York counsel, nor was he able to test the assertions set forth in the letter by means of cross-examination.

On November 27, 1979, the lower court granted appellee’s Petition to Open the Default Judgment, giving “equitable consideration to the letter by said counsel quoted above.”

Appellant contends that the lower court abused its discretion by opening the default judgment under the circumstances.

We agree and, therefore, reverse.

In order to open a default judgment, the Petition to Open must be: (1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense. Government Employees Financial Corporation v. Walker, 259 Pa.Super. 371, 393 A.2d 873, 875 (1978); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577, 579 (1979); Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979). All three criteria must be met, and the three requirements must “coalesce”. Tice v. Nationwide Life Insurance Company, 253 Pa.Super. 118, 384 A.2d 1257, 1258 (1978); Bethlehem Apparatus Company, Inc. v. H. N. Crowder, Jr. Company, 242 Pa.Super. 451, 364 A.2d 358, 360 (1976).

In its petition to open, appellee details a breach of contract on appellant’s part concerning the goods supplied. Accordingly, appellant does not contend that appellee has not alleged a meritorious defense.

However, appellee failed to file its petition timely and did not adequately excuse itself from failing to file an answer to the complaint.

Although appellee’s President, Bernstein, did forward the complaint to his New York counsel, no answer to the complaint was ever filed. Appellee has not established a reasonable excuse for its failure to file an answer. New York counsel admitted that the answer had not been filed, at least in part, due to “faulty memory on my part.”

In Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577, 581-2 (1979), this Court attempted to distinguish between acceptable and unacceptable mistakes concerning this issue. We observed that unacceptable mistakes involve attorney carelessness or dilatoriness, a failure to act by one who knows its implications, or a deliberate decision not to defend. Acceptable mistakes involve the misplacement or handling of papers through no fault of the appellant or its attorney, or a clerical oversight resulting in an attorney’s being unaware of the suit from the outset. Peoples National Bank v. Hitchcock, 278 Pa.Super. 375, 420 A.2d 589 (1980).

It is apparent, on the basis of the admission of appellee’s counsel, that he was aware that suit had been filed and that he was required to take action. By the tone of his letter, it is also apparent that he was aware of the implications of his failure to act.

Appellant also argues that appellee’s New York counsel deliberately decided not to defend the case in Pennsylvania. When Mr. Bernstein received appellant’s letter of April 24, 1979, advising of a possible execution in New York within 10 days, he referred the letter to New York counsel. Concerning this subject, Mr. Bernstein’s affidavit states:

“I again consulted my attorney who advised that he could not find his file on this matter but not to worry because when this judgment was transferred he could have it opened in New York.”

Therefore, it would appear that the appellee decided not to take any action to defend this matter in Pennsylvania, until it learned that its accounts receivable had been attached in Philadelphia on June 29, 1979. Nevils v. Chernitsky, 244 Pa.Super. 501, 368 A.2d 1297 (1976).

For the same reasons, appellee failed to file a timely petition to open. Appellee received the Prothonotary’s notice of the entry of the default judgment shortly after April 4, 1979. Appellee also subsequently received the letter of April 24, 1979, at which time it was advised “not to worry”. The petition to open was filed on July 13,1979,15 days after appellee’s accounts receivable were attached in Philadelphia and more than 3 months after the entry of the default judgment.

A default judgment will be opened only when there exist “. .-. equitable considerations which impress the court with the need for relief”. Ecumenical Enterprises, Inc., v. Nadco Construction, 253 Pa.Super. 386, 385 A.2d 392, 396 (1978). Under the circumstances of this case, we are unable to find an equitable consideration which would justify the opening of this default judgment. Appellee received notice prior to the filing of the complaint, appellee was served with the complaint, appellee was notified of the entry of the default judgment and appellee was advised that execution in New York was forthcoming. Appellee was apparently advised to wait to file a Petition to Open until it obtained the “home court advantage” in New York.

For these reasons, we hold that the lower court abused its discretion in granting a petition to open which was filed more than 3 months following the entry of the default judgment. Maruccio v. Houdaille Industries, Inc., 254 Pa. Super. 560, 386 A.2d 91, 94 (1978); Hofer v. Loyal Order of Moose of the World, 243 Pa. Super. 342, 365 A.2d 1254, 1255 (1976); McCoy v. Public Acceptance Corporation, 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Dwyer v. Hunsberger, 229 Pa.Super. 198, 323 A.2d 822 (1974).

Order reversed and judgment reinstated.

Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court of Pennsylvania.


author: HESTER, Judge: CAVANAUGH, Judge,

text:
    439 A.2d 795
    COMMONWEALTH of Pennsylvania, v. Richard Allen KERN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Jan. 8, 1982.

      Richard J. Orloski, Allentown, for appellant.
    Michael E. Moyer, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

The appellant was convicted of numerous summary offenses before a District Magistrate. He filed a timely appeal to the Court of Common Pleas of Lehigh County. The appellant also filed a Motion to Dismiss the prosecution, alleging that the action had not been properly instituted pursuant to Pennsylvania Rule of Criminal Procedure 51, 42 Pa.C.S.A., in that the district magistrate had issued a citation to him rather than a summons. See Commonwealth v. Shelton, 260 Pa.Super. 82, 393 A.2d 1022 (1978). Said Motion to Dismiss was entertained by the lower court immediately prior to the scheduled hearing de novo, on March 21, 1979, at which time the court ordered that the charges against the appellant be dismissed because the Commonwealth could not establish that a summons had been issued. The Commonwealth filed a petition to rescind the Order of March 21, 1979, alleging that the parties had mistaken the facts and that a summons had been properly issued to appellant. On April 2, 1979, the lower court issued a Rule on the appellant to show cause why the Order should not be rescinded. Neither the Commonwealth nor the appellant ever appealed the Order of March 21, 1979.

On February 27, 1980, the lower court entered an Order granting the Commonwealth’s Petition to Rescind the Order of March 21, 1979, on the basis of the testimony of the district magistrate to the effect that a summons had, in fact, been issued to the appellant on July 12, 1978. The lower court held that it had jurisdiction to review the Order of March 21, 1979 and that the defense of double jeopardy did not apply.

On March 17, 1980, the appellant filed a Notice of Appeal, and on April 2, 1980, the lower court stayed further proceedings below pending the disposition of this Appeal.

The appellant raises numerous issues on appeal, including the following: (1) was the Order of February 27, 1980, which dismissed the appellant’s defense of double jeopardy, a final appealable Order; (2) was the Order of February 27, 1980 appealable as an interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(5), 42 Pa.C.S.A.; (3) did the lower court have jurisdiction to rescind its Order of March 21, 1979; (4) as a result of the rescission of the Order of March 21, 1979, was the appellant placed in double jeopardy.

For the reasons stated below, we affirm the lower court’s Order of February 27, 1980, and remand for further proceedings.

We initially hold that the Order of February 27, 1980 was a final Order, within the scope of our exclusive appellate jurisdiction. 42 Pa.C.S.A. Section 742. In his answer to the Commonwealth’s Petition to Rescind the Order of March 21, 1979, the appellant raised the defense that any subsequent prosecution concerning the same criminal charges constitutes double jeopardy under the Pennsylvania and United States Constitutions.

The lower court held: “further proceedings are not barred by the Double Jeopardy Clause:

‘[I]t is axiomatic that in order to prevail on a plea of double jeopardy, the defendant must establish that he has already been once placed in jeopardy. In a jury case, jeopardy does not attach until the jury has been empaneled and sworn; and in a non-jury case, jeopardy attaches when the accused has been subjected to a charge and the Court has begun to hear evidence.’

Commonwealth v. Smith, 232 Pa.Super. 546, 548-49, 334 A.2d 741, 742 (1975).”

Therefore, the lower court entertained and dismissed the appellant’s defense of double jeopardy.

Under the circumstances of this case, this dismissal constitutes a final order subject to our review. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90, 95 (1977); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094, 1095 (1977); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498, 499 (1980); Commonwealth v. Klinger, 264 Pa.Super. 21, 398 A.2d 1036, 1038 (1979); Commonwealth v. Meekins, 266 Pa.Super. 157, 403 A.2d 591, 592 (1979); Commonwealth v. Clark, 287 Pa. Super. 380, 430 A.2d 655, 657 (1981). The dismissal of the defense of double jeopardy is a final appealable Order because “the practical effect of the Order will be irreparable by any subsequent appeal.” DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962).

The Supreme Court of Pennsylvania has held that the purpose of the Double Jeopardy Clause mandates that a defendant who has a meritorious claim, must have an effective procedural means of vindicating his constitutional right to be spared an unnecessary trial. Commonwealth v. Bolden, supra. In the instant case, the appellant claims that he has been placed in double jeopardy because the Order of March 21, 1979, which dismissed the charges against him, was subsequently rescinded by the lower court. Under these circumstances, the appellant should have an effective procedural means of vindicating his constitutional right not to be subjected to double jeopardy, so as to possibly avoid the necessity of enduring trial.

Since we hold that the Order of February 19, 1980 constitutes a final appealable order, for the purposes of the Judicial Code, 42 Pa.C.S.A. Section 742, we will not consider whether said Order is appealable, as an interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(5).

Although this matter is properly before this Court on appeal, we hold that the appellant has not been placed in double jeopardy as a result of the rescission of the Order of March 21, 1979. On March 21, 1979, the lower court dismissed the charges against the appellant, as a result of its mistaken belief that he had not properly been issued a summons. However, the lower court never actually reached the merits of the case, nor did the lower court ever begin to hear the substantive evidence. Commonwealth v. Mitchell, 262 Pa.Super. 268, 396 A.2d 748, 751 (1978); Commonwealth v. Carson, 259 Pa.Super. 183, 393 A.2d 778, 781 (1978); Smith, supra, Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122, 123 (1972).

The double jeopardy prohibition of the Federal Constitution “. . . protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Commonwealth v. White, 264 Pa.Super. 495, 400 A.2d 194 (1979); Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), cert. denied 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794.

The appellant, in the instant case, was never acquitted or convicted of the charges after an evidentiary hearing by the lower court. Since the lower court initially dismissed the charges, without ever hearing any evidence, the appellant was not placed in jeopardy for the offense. He was never, in fact, tried before the lower court.

Finally, the lower court had jurisdiction to rescind its Order of March 21, 1979, pursuant to 42 Pa.C.S.A. Section 5505, which states: “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 filed.”

In the instant case, the lower court issued a Rule upon appellant to show cause why the Order of March 21, 1979 should not be rescinded, within 30 days of its entry. The lower court had express statutory jurisdiction to modify or rescind its Order, which is not inconsistent with the jurisdiction of this Court, pursuant to 42 Pa.C.S.A. Section 742.

Order Affirmed and the case remanded for further proceedings.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

With all due respect, I must reject the majority’s application of Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), as both untenable and unwise. I would instead hold that the February 27, 1980 order was interlocutory and must, therefore, be quashed. See Commonwealth v. Ravert, 286 Pa.Super. 46, 428 A.2d 231 (1981) (denial of appellant’s motion to quash indictment at end of Commonwealth’s case at preliminary hearing interlocutory and not appealable).

A brief reiteration of the procedural history will illustrate the inappropriateness of the present appeal at this juncture. Appellant timely appealed for a trial de novo before the Lehigh County Common Pleas Court after his conviction of summary offenses before a District Magistrate. Prior to the scheduled de novo trial, appellant moved to dismiss the prosecution because of an alleged violation of Pa.R.Crim.P. 51. The lower court agreed and, on March 21, 1979, dismissed the charges against appellant. Immediately thereafter, the Commonwealth filed a petition to rescind that order on the grounds that it was based on mistaken facts. In response, appellant claimed that (a) the court lacked jurisdiction to reverse its dismissal order, and (b) a trial de novo was barred by double jeopardy.

On February 27, 1980, the court granted the Commonwealth’s petition and reversed its March 21, 1979, dismissal order. The court also held that it had jurisdiction to review its earlier order and that appellant’s defense of double jeopardy was inapplicable because appellant had never been brought to trial. Appellant, on March 17, 1980, appealed to this court from the February 27, 1980 order. In a per curiam order of June 6, 1980, we denied the Commonwealth’s April 1, 1980 motion to quash appellant’s appeal without prejudice to the parties’ rights to argue the jurisdictional propriety of this appeal.

Turning now to the issue herein raised, I must disagree with the majority that Bolden requires the resolution of appellant’s double jeopardy claim. The double jeopardy prohibition of the Federal Constitution “. . . protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.” (Opinion of Hester, J. at 797; citations omitted). Accordingly, the Supreme Court in Bol-den stated:

We hold that the denial of a pre-trial application to dismiss an indictment on the ground that the scheduled trial will violate the defendant’s right not to be placed twice in jeopardy may be appealed before the new trial takes place. Once a defendant is erroneously subjected to another prosecution, neither an acquittal nor appellate reversal of a conviction is sufficient to vindicate his constitutional right not to be placed twice in jeopardy. We conclude that the right to be free from multiple prosecution, embodied in the double jeopardy clause, can be adequately protected only by permitting an immediate appeal from a trial court’s denial of relief.

472 Pa. at 609, 373 A.2d at 93 (emphasis added). Applying Bolden, our appellate courts have frequently entertained appeals which have alleged that reprosecution will violate double jeopardy. See, e. g., Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981); Commonwealth v. Washington, 492 Pa. 572, 424 A.2d 1340 (1981). Those appeals, however, have involved matters in which there has been a prior proceeding at which jeopardy has already attached.

We have said that:

it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been once placed in jeopardy. In a jury case, jeopardy does not attach until the jury has been impaneled and sworn; and in a non-jury case, jeopardy attaches when the accused has been subjected to a charge and the court has begun to hear evidence.

Commonwealth v. Smith, 232 Pa.Super. 546, 548-549, 334 A.2d 741, 742 (1975). Consequently, where jeopardy has not attached ab initio, there can be no viable subsequent claim of double jeopardy. Compare In The Interest of George S., III, 286 Pa.Super. 217, 428 A.2d 650 (1981) (order denying motion to dismiss on double jeopardy grounds appealable in case where appellant was transferred by juvenile court to adult court and then returned to juvenile court; the court held that the remand for further juvenile court proceedings would not place appellant twice in jeopardy because there had been no prior adjudicatory proceeding in juvenile court).

Here, appellant has never been once placed in jeopardy for these crimes. I, therefore, cannot go along with the majority’s conclusion that the February 27, 1980 order constitutes a final appealable order within the meaning of 42 Pa.C.S.A. § 742. Simply because appellant has labeled his appeal as a “double jeopardy” claim does not make it cognizable, particularly where an examination of the procedural history makes clear that such a claim is inappropriate at this juncture. Because I do not read Bolden so broadly as to encompass the instant appeal, I would order it quashed and remand this matter for trial.

      . The appellant also contends that he was placed in double jeopardy since he was initially tried for the various summary offenses before a district magistrate. Although we do not reach the merits of this contention, we note that this argument is spurious and does not constitute a meritorious claim.

      . Because of our disposition of this case, we will similarly not address other issues raised by the appellant.

      . As noted earlier, the appellant was found guilty before the district magistrate. However, since the appellant filed a timely appeal to the lower court, de novo, he may not legitimately argue a violation of double jeopardy. Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352 (1972).

      . The appellant claims that he was tried “in absentia” on March 27, 1980, ten days after the filing of the Notice of Appeal to this Court. Although we do not reach this issue, we note that our review of the record indicates that, on April 2, 1980, the lower court stayed all further proceedings pending disposition of this appeal, as of the filing of the Notice of Appeal on March 17, 1980.

      . Although this issue is not properly before us, the briefs indicate that, subsequent to his filing of the March 17, 1980 notice of appeal to this court, appellant was tried and convicted of the instant charges in Common Pleas Court. If this information is accurate, that proceeding would appear to be a nullity. Pa.R.A.P. 1701(a). See Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980).

      . I agree with the majority that appellant’s initial trial and conviction before a District Magistrate does not raise a meritorious double jeopardy issue.


text:
    439 A.2d 799
    Carl ROYSTER, Raymond Helton, Nathaniel Kelly and Ernest Jackson, Jr., Appellants, v. McGOWEN FORD, INC., Penn Lee Fleet System, Inc. and Ford Motor Company.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1981.
    Filed Jan. 8, 1982.

      Allen L. Feingold, Philadelphia, for appellants.
    John F. Ledwith, Philadelphia, for McGowen, appellee.
    William C. Foster, Philadelphia, for Penn Lee, appellee.
    James J. Donohue, Philadelphia, for Ford, appellee.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   HESTER, Judge:

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County, dated June 24, 1980, entering a Judgment of Non Pros against appellants for their failure to comply with an Order of court, dated August 27, 1979, requiring appellants to answer Interrogatories.

This action arose from a single-vehicle accident which occurred on April 21, 1976. The four appellants filed their complaint on March 21, 1978 alleging a products liability action against appellee Ford Motor Company. Appellants were occupying a 1976 Ford vehicle which went off the road and hit a tree as a result of an alleged “mechanical defect in the car”. Appellants had leased the vehicle from appellee Penn Lee Fleet Systems, Inc., which had purchased the vehicle from appellee McGowen Ford, Inc.

On April 10, 1978, Ford served an initial set of Interrogatories upon appellants. These Interrogatories requested a detailed list of all injuries sustained in the accident in question, as well as a list of all witnesses, both factual and expert, that appellants had expected to testify on their behalf. Interrogatories 42 through 48 specifically requested information regarding appellants’ expert witnesses. Appellants answered Interrogatories 42 through 48 by stating “plaintiffs have absolutely no idea who they will call as expert or medical witnesses at this time.”

On April 30, 1979, Ford served a set of 10 expert Interrogatories upon appellants, which essentially sought the same information, as previously requested in Ford’s initial set of Interrogatories (No. 42 through 48), concerning the identity, and substance of any opinions, of non-medical expert witnesses whom the appellants expected to testify at trial. On July 6, 1979, Ford filed a Motion to Compel Answers to the Expert Interrogatories. The lower court granted the motion of August 27, 1979, requiring full and complete answers within 45 days of the order. On March 31, 1980, Ford advised the appellants that it intended to file a Motion for Judgment of Non Pros unless the discovery was furnished within 15 days. The Motion for Entry of Non Pros was filed on April 15, 1980 and was granted by the lower court on June 24, 1980. On August 19, 1980, appellants filed a Motion for Reconsideration which was denied by the lower court on September 9, 1980.

Prior to the entry of the Judgment of Non Pros, McGowen and Penn Lee, on February 20, 1980, also served Interrogatories on the appellants specifically limited to disclosure of expert witnesses. Appellants filed objections to these expert Interrogatories on or about March 18, 1980, as follows:

“Plaintiff objects to Interrogatories 1 to 3 inclusive for the following reasons: Plaintiff has already supplied this information to defense counsel in prior answers to Interrogatories as well as an extensive deposition. These Interrogatories are redundant, oppressive and harassing in nature; and are also burdensome in that they could have been directed in one set to all plaintiffs instead of in four separate sets further showing the defendant’s attempt to harass plaintiffs herein.”

On or about March 21, 1980, McGowen filed a Motion for Sanctions, including Judgment of Non Pros. On or about March 24,1980, the appellants filed an answer to McGowen’s Motion for Sanctions, which stated, inter alia:

“Plaintiffs had previously answered other Interrogatories from both defendants herein as well as from additional defendant and plaintiffs have also submitted themselves to an extensive deposition during which all of this information [relating to expert witnesses] was asked and plaintiffs answered same. Plaintiffs have no expert witnesses. What else does defense counsel want us to say?" (emphasis supplied).

The issue before us on appeal is whether the lower court abused its discretion in granting Ford’s Motion for Judgment of Non Pros on the basis of the appellants’ failure to answer the expert Interrogatories which were served on April 30, 1979, and failure to comply with the lower court’s order of August 27, 1979.

For the reasons that follow, we reverse the lower court’s order and remand for further proceedings.

Initially, we note that the record before us manifests a total aberration of the intent and spirit of the Pennsylvania Rules of Civil Procedure. See Pennsylvania Rules of Civil Procedure 126-128. 42 Pa.C.S.A.

Again, we note that the record before us nourishes the public’s perception that the entire legal system disguises, and often overlooks, the substantive interests of the parties with the veil of procedure.

Secondly, we note that the record before us emphatically demonstrates the need to clarify the Pennsylvania Rules of Civil Procedure relating to discovery, Rule 4001 et seq., 42 Pa.C.S.A., especially Rule 4003.5, relating to the discovery of expert testimony, which states, inter alia:

Rule 4003.5 Discovery of Expert Testimony. Trial Preparation Material
(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require (a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

The intent of Rule 4003.5 is to attempt to accommodate the competing needs and interests of the parties during the discovery process. Through interrogatories, a party may compel the identification of each person whom the other party expects to call as an expert witness at trial, as well as the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. As in the present case, a defendant would need this information concerning the identification and opinions of expert witnesses in order to evaluate the relative strengths and weaknesses of the defense, to fully explore the possibility of settlement and to otherwise prepare for trial. On the other hand, the plaintiff, especially during the early discovery stages, may not have sufficient information to enable his expert to analyze and formulate a comprehensive opinion with respect to the relevant facts and issues involved. For instance, in a products liability action, a plaintiff is normally in need of detailed records concerning the particular product at issue. These detailed records are normally within the exclusive control and possession of the defendant-manufacturer and must be secured by the plaintiff through the discovery process. Logically speaking, a plaintiff cannot secure the services of an expert for the purposes of rendering an opinion until the plaintiff has secured sufficient information on the basis of which the expert may opine.

The instant case was filed on March 21, 1978. On April 10, 1978 Ford served 54 Interrogatories upon appellants, including Interrogatories 42 through 48, relating to the identification and content of expert testimony. Under these circumstances, Ford’s expert Interrogatories would appear to be premature. However, the information requested by Ford was properly discoverable. The question is one of timing.

Pennsylvania Rule of Civil Procedure 4007.3 states:

“Unless the court upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.”

Therefore, although Ford’s initial expert Interrogatories were possibly premature, appellants were still required to answer these Interrogatories, unless they obtained a protective order postponing any response pursuant to Pennsylvania Rules of Civil Procedure 4007.3 and 4012, 42 Pa.C.S.A.

The explanatory note to Rule 4003.5 states:

“If a party, in his answer to interrogatories, states that he has not yet retained his experts, he is under a duty to supplement his answer as provided by Rule 4007.4(1). In addition, the inquirer may obtain a stipulation that the party will supplement his response or ask the court for an order under Rule 4007.4(3) requiring the party to file a supplemental response when such experts are retained.”

Therefore, appellants could have answered Ford’s initial Interrogatories 42 through 48 by stating “plaintiffs have not yet retained an expert. Plaintiffs hereby stipulate, pursuant to Pennsylvania Rule of Civil Procedure 4007.4(1), that they will seasonably supplement this response with the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony as required by Rule 4003.5(a)(1).”

Under these circumstances, if a plaintiff, in good faith, states that he has not yet obtained the services of an expert who is expected to testify at trial, the defendants would be protected from prejudice to their position because the plaintiff is still under an affirmative duty seasonably to supplement this response. If a defendant could subsequently show that a plaintiff has not fulfilled this affirmative duty and that the defendant has been prejudiced by plaintiff’s failure, the defendant could then file a Motion for Sanctions pursuant to Pennsylvania Rules of Civil Procedure 4003.5(b) and 4019(i), which would preclude the testimony of such expert at trial.

In order for a party to obtain a sanction as a result of another party’s failure seasonably to disclose the identity of an expert witness and the substance of the expert’s report, prejudice to the complaining party must be shown. In some counties of the Commonwealth, discovery relating to expert witnesses is postponed, as a matter of local practice, until the pre-trial or conciliation stage near the trial date. See generally 10 Goodrich Amram 2d Section 4003.5(a): 2 (Page 129); Nowosielski v. Kryzosiak, 280 Pa.Super. 243, 421 A.2d 703 (1980); Bryant v. Southwark Realty Company, 9 Pa.D.C. 3d 355 (1979).

Therefore, assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure. See Lewis v. Reid, 244 Pa.Super. 76, 366 A.2d 923 (1976), especially the dissenting opinion of Judge Spaeth, 244 Pa. Super. 87-88 at 366 A.2d 928.

In Gill v. McGraw Electric Company, 264 Pa. Super. 368, 382, 399 A.2d 1095, 1102 (1979), this Court enumerated the basic factors which should be considered in order to determine whether a violation of a pre-trial order, which requires the disclosure of the names and opinions of expert witnesses, constitutes grounds for the exclusion of the witness’ testimony, as follows:

(1) The prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court and (4) bad faith of [sic] willfulness of failing to comply with the court’s order.” See Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894, 904-05 (3d Cir., 1977).

“Applying these considerations to the facts of Gill, we held that the appellee’s expert witnesses should not have been permitted to testify. Essential to our decision was the extent to which the appellee’s actions had prejudiced the appellants.” Nowosielski, supra, 280 Pa.Super. 247, 421 A.2d at 705.

“To preclude . . . testimony is a drastic sanction, and if it is not necessary under the facts of the case, an abuse of discretion may be found.” Gill, Ibid; Nowosielski, Ibid.

In Nowosielski, supra, we affirmed the lower court’s decision to allow defendant’s expert witness to testify at trial, even though the defendant had failed to include a copy of the physician’s medical report in his pre-trial statement, as required by a local rule of court, due to the fact “. . . that defendant’s failure to include in her pre-trial statement a copy of Dr. Long’s report was of minimal prejudice to plaintiffs.” 280 Pa.Super. 247, 421 A.2d at 705. See also Saks v. Jeanes Hospital, 268 Pa.Super. 578, 408 A.2d 1153 (1979).

On the basis of the above, we remand to the lower court for its reconsideration of the order of June 24, 1980, in light of the factors enumerated in Gill, supra, to wit:

1) the extent of any prejudice or surprise of appellees resulting from appellants’ failure to previously disclose the identity and opinions of an expert witness;
2) the ability of appellees to cure the prejudice;
3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and
4) appellant’s bad faith or willfulness of failing to comply with the Order of August 27, 1979.

The lower court’s opinion does not fully address these factors.

Order Reversed and Remanded to the jurisdiction of the lower court.

POPOVICH, J., concurs in the result.

Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court of Pennsylvania.

      . Apparently appellants did not answer all of the Interrogatories until December 20, 1978. Initially, on June 5, 1978, appellants objected to the Interrogatories. Ford subsequently filed a Motion to Strike Appellants’ Objections on September 15, 1978. On September 21, 1978 the lower court ordered appellants to file full and complete answers within 30 days.

      . In addition to the aforementioned procedural war games, counsel for the respective parties have “testified” in their briefs regarding other alleged procedural improprieties and unethical conduct. None of these other allegations are properly before us for disposition, but should be referred to the disciplinary board, if necessary. We do specifically note that, on January 11, 1980, the lower court entered an Order as follows:
      “The motion of plaintiffs to enter judgment against defendants McGowan Ford, Inc., Penn Lee Fleet Systems, Inc. and Ford Motor Company is denied without prejudice to the rights of plaintiffs to file more specific Interrogatories. Answers to plaintiffs’ Interrogatories, which may be forthcoming pursuant to this Order, shall be made in a responsive, unequivocal and unevasive manner. Any documents supplied in answer to said Interrogatories shall be wholly legible regardless of defendants’ contentions that illegible portions thereof are not relevant.”

      . It is unclear as to what extent the defendants in the instant case have adequately supplied to the appellants any requested information concerning the automobile at issue. The lower court should consider this point on remand.

      . Pennsylvania Rule of Civil Procedure 4007.4 states “(1) a party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony as provided in Rule 4003.5(a)(1).”

      . We mention this specific sanction without precluding the possibili.ty of other sanctions pursuant to Rule 4019. However, under the circumstances of this case, it would seem that a refusal to allow an expert witness to testify would be more appropriate than a judgment of non pros. In a products liability action, this distinction may not be significant.

      . The record does not reveal whether the instant case was ever listed for trial.

      . In response to McGowen’s Motion for Sanctions, appellants represented, “Plaintiffs have no expert witnesses. What else does defense counsel want us to say.” If, on remand, the lower court finds that the appellees were prejudiced by this statement, the lower court could appropriately preclude any expert testimony at trial on behalf of appellants, as a sanction pursuant to Pa.R.C.P. 4003.5(b) & 4019(i).

      . Counsel for the appellants alleges that he never received a copy of the order of August 27, 1979, as a result of a bureaucratic mistake and was never aware of the existence of the Order of August 27, 1979 until Ford filed its Motion for Judgment of Non Pros on April 15, 1980. Counsel for appellants further alleges that he thought he had, in fact, answered the expert Interrogatories at issue on numerous occasions, including appellants’ objections to McGowen’s expert Interrogatories, which were filed on March 18, 1980, prior to the filing of Ford’s Motion for Judgment of Non Pros.

      . The lower court’s Opinion states in relevant part: “more than six months having elapsed since the entry of Judge Greenberg’s Order with no answer having been filed by plaintiffs to the Interrogatories, the defendant, on April 15, 1980, filed a second Motion for Sanctions requesting a Judgment of Non Pros. Accordingly, the court granted a Judgment of Non Pros on June 23, 1980, from which this appeal has been taken.”


text:
    439 A.2d 805
    COMMONWEALTH of Pennsylvania v. Brett TAYLOR, Appellant. COMMONWEALTH of Pennsylvania v. Carl V. KING, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Jan. 8, 1982.
    Petition for Allowance of Appeal Denied April 7, 1982.

      John H. Corbett, Jr., and David G. Metinko, Pittsburgh, for appellants.
    Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

The appellants, Carl King and Brett Taylor, were both convicted following a jury trial in the Court of Common Pleas of Allegheny County, of rape, involuntary deviate sexual intercourse, criminal attempt, aggravated assault, burglary, recklessly endangering another person, and criminal conspiracy.

The relevant facts concern a gruesome account of what happened to Karen Gallagher on the evening on January 13, 1979. For the purposes of this Opinion, a brief summary of this event will suffice. Miss Gallagher met two black males, for the first time, at a party given by her next door neighbor at 61 Lawn Street in the City of Pittsburgh on the evening of January 13, 1979. She carried on a conversation with both of these men in a well-lighted room for approximately 10 to 15 minutes. Following this conversation, Miss Gallagher returned to her apartment at 63 Lawn Street, accompanied by the same two men, in order to search for some marijuana, which she intended to contribute to the party. Due to the fact that she could not find anything, she decided not to return to the party and requested that the two men leave. After the two men left, Miss Gallagher retired to bed. Sometime later that night, she was awakened by a loud noise. When she went into her living room to investigate, she found the same two men standing in the living room. The lights were on in the living room at the time. Following her repeated demands that the two men leave, the two men suddenly grabbed her, and started beating her head against a door jam and articles of furniture. The two men committed multiple acts of rape and deviate sexual intercourse upon her while continuing to beat her severely. The two men finally threw a table top on her and slit her throat with a knife.

Appellants do not contest the sufficiency of the evidence presented, nor do they question that these grotesquely brutal acts were committed upon the victim.

Both appellants raise four issues on appeal, all of which involve the competency of Karen Gallagher to testify at trial, due to the fact that she was hypnotized by a police hypnotic investigative expert on February 8, 1979. Appellants contend that, due to the fact that the victim was hypnotized, her testimony was unreliable because of the potential for fantasy and confabulation which the hypnosis produced.

We disagree and, therefore, affirm the judgment of sentence with respect to both appellants.

The Supreme Court of Pennsylvania has recently decided the appeal of the three co-defendants allegedly involved in the Heidi Morningstar murder. Commonwealth v. Nazarovitch et al., 496 Pa. 97, 436 A.2d 170 (1981). Speaking for a unanimous Court, Chief Justice O’Brien held that the Commonwealth’s chief witness was incompetent to testify against the defendants because her memory had been refreshed by the use of hypnosis.

The Supreme Court stated:

“While we do not want to establish a pro se rule of inadmissibility at this time, we will not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory. We believe that the facts of this case warranted the suppression by the trial judge of this witness’ refreshed testimony.” (496 Pa. 111, 436 A.2d at 178).

In Nazarovitch, supra, the Supreme Court closely scrutinized the scientific basis and use of hypnosis and also summarized the authority of the federal courts and sister states concerning this subject. We will not attempt to reanalyze this authority, due to the fact that the record before us contains no expert testimony or other scientific information which has not already been considered by the Supreme Court and also due to the fact that we are not impressed with the safeguards and procedures utilized by the investigating officer during the hypnotic session with the victim.

Although we do abide by the learned decision of the Supreme Court, the instant appeal is clearly distinguishable from Nazarovitch, supra. The issue in Nazarovitch, as succinctly stated by the Court, was: “This case raises the novel issue of whether hypnotically-refreshed testimony is admissible in a criminal trial when the witness has no present recollection of the facts prior to hypnosis.” (496 Pa. 99, 436 A.2d at page 171).

In the instant case, it is apparent that Karen Gallagher did have present recollection of the identity of her assailants, prior to the hypnotic session on February 8, 1979.

The issue before us on appeal is not whether the evidence supports the various elements of the crimes of which the appellants were convicted. The crucial inquiry is whether the two appellants, were in fact, the two assailants who committed the crimes which were proven, a question of identification. In order to determine this issue, it is necessary to determine whether the victim’s identification of the two appellants at trial was rendered inadmissible as a result of the ill-advised hypnotic session. Under the circumstances of this case, we hold that the victim’s testimony was admissible due to the fact that she identified both appellants prior to the hypnotic session.

The victim was found in critical condition by her roommate Frank Poloney early in the morning on January 14, 1979. Since their telephone had been ripped out of the wall, Poloney told the victim he was going next door to 61 Lawn Street in order to call the police. In her condition, the victim still managed to protest by uttering, “They did it”! While she was being treated by paramedics at her apartment, the victim continually pointed toward 61 Lawn Street. Although she was near death, the victim managed to indicate the association between 61 Lawn Street and the crime.

The victim was taken to Presbyterian University Hospital, where police attempted to interview her concerning the identity of her assailants. Due to the severe nature of her throat wound, she was unable to speak. In response to police questions about the identity of her assailants, she wrote on a card, “Carl and friend, Carl, Carl”. Clearly, this response indicates there were two persons involved, one named Carl and the other person being Carl’s friend. In the context of the victim’s other testimony concerning how she was introduced to Carl and his friend at a party given by her next door neighbor earlier in the evening of January 13, 1979 and how Carl and his friend had accompanied her for a brief period to her apartment, this response establishes that the victim had prior recollection to the effect that her two assailants were, in fact, the two black men who she had met earlier at the party.

This positive identification is also consistent with the testimony of the numerous other persons who attended the party on January 13, 1979, for the purpose of verifying that both appellants had, in fact, attended the party and had been introduced to the victim. The victim had numerous opportunities to clearly see both appellants at the party, when they returned to her apartment and when they subsequently broke into her apartment in the lighted living room.

The> entire scenario was also reinforced by a Mr. John Gant, who was a friend of both appellants and who lived below appellant King in the same apartment house. Mr. Gant testified that, although he did not attend the party on January 13, 1979, both appellants had called him from the party on two occasions during the evening and repeatedly asked him to come to the party. After the party, early in the morning of January 14, 1979, both appellants woke up Mr. Gant and spent approximately one-half hour talking to him in his apartment, thereby verifying that the appellants had been together during the entire period in question.

While she was in the emergency room at the hospital, the victim also answered the question, whether she had been raped by nodding her head affirmatively.

More importantly, on January 16, 1979, while the victim was still in the intensive care unit in the Presbyterian Hospital, she choose appellant King’s picture from a series of photographs brought to her by the police. On January 19, 1979, she selected a photograph of appellant Taylor from a series of photographs. Therefore, prior to the hypnotic session of February 8, 1979, the victim had positively identified both appellants.

On February 20,1979, the victim identified appellant King at a police line-up, as one of her assailants.

On February 14, 1979, the victim attended a line-up at which time she misidentified another person as being appellant Taylor. However, the appellant subsequently identified Mr. Taylor at a second line-up. The fact that the victim had mistakenly identified the wrong person at the line-up was, of course, brought before the jury’s attention. The victim stated at trial that she was extremely nervous and “paranoid” at the prospect of facing appellant Taylor and identified another man although she was unsure at the time. There was also testimony to the effect that appellant Taylor normally had his hair matted down but, just prior to the line-up, someone handed him a comb which he used to fluff his hair. He also took off his glasses. After the line-up, appellant Taylor matted down his hair again, as it was before. When it was decided by the police to take a photograph of the line-up, appellant Taylor once again fluffed his hair. Under these circumstances, the lower court properly allowed the jury to consider the weight of the evidence in determining whether the victim had made a positive identification of appellant Taylor.

It is clear that the victim was able to positively identify both of her assailants prior to the hypnotic session. Therefore, with respect to the victim’s ability to identify her two assailants, the hypnotic session did not, in fact, refresh her memory and the dangers of unreliable suggestion, fantasy and confabulation are not at issue. With respect to what happened to the victim after she was raped, during the period in which she lapsed in and out of consciousness, our review of the entire trial transcript, suppression hearing transcript and transcript of the hypnotic session itself confirms that the prosecution deliberately did not attempt to utilize any testimony of the victim which conceivably surfaced for the first time as a result of the hypnotic session on February 8,1979. Therefore, the victim’s testimony was not rendered incompetent by the hypnotic session due to the fact that she did have prior recollection. See Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974); Merrifield v. State, 400 N.E.2d 146 (Ind., 1980); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). State v. Mena, 128 Ariz. 244, 624 P.2d 1292 (1980); reversed in part, 128 Ariz. 226, 624 P.2d 1274 (1981).

The appellants also question on appeal the fact that the jury was never informed of the fact that the victim had undergone hypnosis on February 8, 1979. Counsel for both appellants did attempt to utilize the statements which the victim had made on February 8, 1979 as prior inconsistent statement for the purposes of impeaching the victim’s credibility. However, the fact that the victim had actually been hypnotized was never brought to the jury’s attention. During the suppression hearing, the lower court did rule, following lengthy testimony concerning the details of the hypnotic session, that any further testimony concerning the hypnotic session was irrelevant, due to the fact that the victim had positively identified both appellants prior to the session. The lower court did thoroughly review the extent of the details which were obtained at the hypnotic session and correctly determined that the victim had prior recollection of the identity of her assailants and of the principal facts constituting the elements of the crimes for which the appellants were convicted.

The record is also clear that, immediately prior to the beginning of the jury trial, the lower court ruled that the victim was competent to testify and that defense counsel could cross-examine the victim concerning the hypnotic session in order to attempt to impeach her credibility.

The fact that defense counsel did not mention the fact that the victim had been hypnotized is explained in the briefs of the respective appellants, as follow:

“The prosecution could reasonably assume after the suppression hearing that a full exploration of the potential abuses of hypnosis would not be forthcoming, and if the defense elected to force the issue even graver consequences would result with the admission of unreliable and prejudicial evidence.”

Therefore, it would appear that counsel for both appellants made the tactical decision at trial not to mention anything concerning the hypnotic session, so as to avoid the potential prejudice resulting from the admission of the entire transcript of the hypnotic session.

Under the circumstances of this case, we do not see that it was the affirmative duty of the prosecution to mention the use of hypnosis to the jury, since the prosecution had already made the tactical decision to intentionally avoid utilizing any testimony or evidence which was initially evoked as a result of the hypnotic session.

The appellants were convicted on the strength of the unrefreshed testimony of the victim, as corroborated by the testimony of the various other persons who had attended the party on January 13, 1979.

Judgment of sentence affirmed.

      . Our reading of the Supreme Court’s decision in Nazarovitch, supra, reveals that the Supreme Court did not approve any procedural safeguards which would insure the reliability and neutrality of memory refreshed by hypnosis. See State v. Hurd, 86 N.J. 525, 432 A.2d 86, 95 (1981). The Supreme Court has, in effect, adopted a pro se rule of inadmissibility concerning hypnotically-refreshed testimony until the court is presented with more scientifically-conclusive evidence that such testimony is reliable, to the same extent as testimony which is refreshed by reviewing a written document.

      . It is difficult to imagine why the investigating officers would risk the Commonwealth’s chances of conviction by conducting the hypnotic session at issue. At the suppression hearing, the trial court patiently listened to the testimony relating to the session. Apparently, due to the fact that Karen Gallagher had been so severely beaten by her assailants, she lapsed in and out of consciousness during the later stages of her assault, following the multiple acts of rape and involuntary deviate sexual intercourse. Accordingly, the investigating officer who conducted the hypnotic session testified that the victim was hypnotized in order to determine which assailant had cut her throat and other facts which occurred during the later stages of the assault. These facts would be legally unnecessary to sustain the conviction of both assailants on all counts, since both defendants conspired to commit the violent criminal acts in question and did in fact commit the acts in concert.

      . Interestingly enough, the misidentification occurred after the hypnotic session at issue.