text:
    435 A.2d 1269
    Edward STENGENA and Dena Kater, Appellants, v. Bruce K. MADDEN and Margaret S. Madden.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1981.
    Filed Oct. 16, 1981.

      Joseph Mellace, Philadelphia, for appellants.
    Brian P. Sullivan, Norristown, submitted a brief on behalf of appellees.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

The appellants in this case, Edward Stengena and Dena Kater, commenced an action in trespass in the court of Common Pleas of Montgomery County against appellees, Bruce K. Madden and Margaret S. Madden. The action was based on an automobile accident which allegedly occurred in Bay Head, Ocean County, New Jersey. Counts one and three of the complaint alleged that the appellants who were plaintiffs in the court below, sustained damages as a result of appellees’ negligence. Counts two and four sought punitive damages against the appellees and alleged that the “defendant, Margaret S. Madden, through her agent or servant the defendant, Bruce K. Madden, was operating said motor vehicle in a wilful, malicious, intentional, wanton and reckless manner” and that the appellants were injured as a result of this wilful and reckless conduct.

Appellees filed preliminary objections to counts two and four in the nature of motions to strike the second and fourth counts. The court below sustained the preliminary objections to the second and fourth counts of the complaint by order dated July 8, 1980. From this order the appellants have appealed to this court.

This case is controlled by Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981). In that case it was stated at 286 Pa.Super. 248, 428 A.2d 665: “In count two of her complaint, appellant demanded punitive damages in excess of $10,000 based upon the wilful, malicious, intentional, wanton and reckless manner in which appellee Vickers allegedly operated his vehicle.” In Vickers the lower court sustained the defendant’s preliminary objections to count two of the complaint and struck that count. On appeal, this Court determined that the order was interlocutory as the action continued as to one count and therefore quashed the appeal. In the instant case the action continues as to counts one and three. The order is therefore interlocutory and not appealable. As noted in Bagshaw v. Vickers, 286 Pa.Super. 249, 428 A.2d 666:

Instantly, the trial court’s order dismissed one count of appellant’s two count complaint. It is abundantly clear that the trial court’s order does not dispose of the entire case or otherwise end the litigation. Appellant is not “out of court” since she may still pursue her claim for damages in excess of $10,000 contained in the first count of her complaint. The trial court’s order, therefore, is interlocutory. See, e. g., Gurnick v. Government Employees Insurance Company, 278 Pa.Super. 431, 435 n.2, 420 A.2d 620, 621 n.2 (1980). See Giannini v. Foy, supra; Wilcox v. Evans, 190 Pa.Super. 166, 153 A.2d 817 (1959). Since the appeal thereof is not rendered appealable by statute, the appeal is not properly before us.

The appeal from the order of the Court of Common Pleas is quashed as interlocutory.

      . In neither Bagshaw v. Vickers, supra, nor the instant case did any party challenge the jurisdiction of this court to resolve the controversy. However, in Bagshaw this Court addressed the issue of the appealability of the trial court’s order sua sponte, and we do the same.


source: Caselaw Access Project

author: DiSALLE, Judge:

license: Public Domain

text:
    435 A.2d 1270
    COMMONWEALTH of Pennsylvania v. Clarence ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1981.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Denied Feb. 16, 1982.

      Arthur J. King, Chief, Appeals Division, Assistant Public Defender, Norristown, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   DiSALLE, Judge:

Appellant, Clarence Allen, was found guilty in a jury trial of forgery and criminal attempt. Following the denial of post-trial motions appellant was sentenced to concurrent terms of imprisonment of not less than two and one-half years nor more than five years. A subsequent Motion to Modify Sentence was denied and this appeal followed.

The criminal complaint against appellant was filed on September 15, 1978. The Commonwealth was therefore, required by Pa.R.Crim.P. 1100 to bring appellant to trial by March 14, 1979. On March 2, 1979, appellant, appearing without counsel, requested the lower court to continue his case for two weeks so that the court could assign him a second public defender. The Commonwealth agreed to the continuance, but only if appellant signed a Rule 1100 waiver. After appellant signed the waiver, the court granted the continuance, and ordered the case reactivated in two weeks. The court also allowed the Commonwealth 120 days from March 2, 1979, within which to try the case.

On June 29, 1979, one day before the 120 day extension was to expire, the Commonwealth petitioned for an extension of time. On August 6, 1979, appellant filed a Motion for Dismissal under Rule 1100. Following an evidentiary hearing, the court filed an Order which granted the Commonwealth until September 21, 1979, within which to commence trial, and dismissed appellant’s motion. Appellant’s trial commenced on September 18, 1979.

Appellant’s first argument is that the lower court erred in granting the Commonwealth the March 2, 1979, 120 day extension because he had requested and agreed to only a two week extension. He argues that he did not read the waiver or the order of court granting the extension, nor was he orally informed of the longer extension. Appellant concludes that any waiver of Rule 1100, for more than the two weeks he requested, was not knowingly and intelligently made and, pursuant to Rule 1100, his case should be dismissed. Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978).

In Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976) the Court held that it is the Commonwealth’s burden to prove the validity of a waiver. The Court observed that “so long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.” Id., 468 Pa. at 160, 360 A.2d at 600. A waiver of Rule 1100 is formally valid of record if a proper colloquy is conducted or the defendant signs a waiver. Id., 468 Pa. at 161, 360 A.2d at 601. Here, appellant signed the waiver. Appellant’s bald contention that he did not read the waiver or the order of court is insufficient to defeat the “prima facie validity” of the waiver. We find Commonwealth v. Scott, 272 Pa.Super. 236, 414 A.2d 1095 (1979), to be controlling. In Scott, this court ruled that the waiver signed by the defendant constituted a general waiver of his Rule 1100 rights. The waiver in the instant case is more comprehensive in its explanation of a defendant’s rights under Rule 1100 than the waiver approved in Scott. Furthermore, in Scott, as in the instant case, the defendant was not represented by counsel. We hold, therefore, that the waiver signed by appellant was a general waiver of his Rule 1100 rights, properly limited to a 120 day extension.

Appellant next argues that the lower court erred in denying his demurrer which was based upon the Commonwealth’s alleged failure to prove all of the substantive elements of the crime of forgery as stated in the Bill of Information. The appellant argues that the language in the Bill of Information is conjunctive, requiring the Commonwealth to prove each element contained in the Bill. The critical language is: “that he [, appellant, while] . . . facilitating a fraud or injury ... did make, complete, execute, authenticate, issue, transfer or utter as altered” a check.

Appellant’s interpretation is erroneous. The language in the Bill is disjunctive, so that the Commonwealth is required to prove only one of the aforementioned actions. “The purpose of an indictment, and of an information, is to provide the accused with sufficient notice to prepare a defense, and to insure that he will not be tried twice for the same act.” Commonwealth v. Rolinski, 267 Pa.Super. 199, 202, 406 A.2d 763, 764 (1979). An information is “valid and sufficient in law if it contains * * * a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint; . . . . ” Pa.R.Crim.P. 225(b)(5). In the instant case, the Bill of Information did comply with Pa.R.Crim.P. 225(b)(5).

The Commonwealth presented sufficient evidence to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Danchislon, 270 Pa.Super. 112, 410 A.2d 1274 (1979). The Commonwealth’s evidence established, inter alia, that appellant opened the checking account in his name only, with a forged check, drawn on a closed checking account. A handwriting expert testified that the signature on the forged check was in appellant’s handwriting. The demurrer, therefore, and appellant’s related Motion for Binding Instructions were properly denied.

As a second reason for his demurrer, appellant argues that the Commonwealth failed to present evidence that he performed an act that constituted the taking of a substantial step toward the commission of the crime of theft by deception. This was also properly denied by the lower court. Appellant’s opening of the checking account with a forged check was more than mere preparation, it was a substantial step toward execution, sufficient to convict appellant of criminal attempt to commit theft by deception. Commonwealth v. Eagan, 190 Pa. 10, 42 A. 374 (1899).

Appellant’s fourth argument is that the court erred in failing to dismiss all charges against him because of the Commonwealth’s failure to timely file the Bills of Information. The Bills, although filed with the Clerk of Courts, did not bear a time stamp as is customary. The time stamp is used only to establish that the Bills are timely and properly filed, and failure to stamp the Bills is not grounds for dismissal. In the present case, there is no question that the Bills were timely and properly filed following appellant’s in-court arraignment.

Appellant’s final argument is that the court erred in failing to suppress his in-court identification. The bank officer who opened appellant’s fraudulent checking account identified appellant’s photograph from an array of eight photographs. Appearing on appellant’s photograph, and on two other photographs, were tiny portions of police identification plaques. Appellant argues that this caused the array to be unduly suggestive and required the suppression of the bank officer’s in-court identification.

The court’s refusal to suppress the in-court identification was proper. In Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980) we stated:

Subsequent to a suggestive out of court confrontation, an in-court identification is admissible if, considering the totality of circumstances, the in-court identification had an independent origin sufficiently distinguishable from the illegal encounter so as to be purged of the primary taint.... Such an independent basis need only be established by the Commonwealth by clear and convincing evidence.

Id., 278 Pa.Super. at 44, 419 A.2d at 1347 (Citations omitted). In the present case, the bank officer had a strong independent basis for her in-court identification. She was near the appellant for four or five minutes, had an opportunity to have a good look at him, under calm, well-lighted conditions, and gave a good description of him to the police.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 4101.

      . 18 Pa.C.S.A. § 901.

      . Appellant has two other appeals pending before this Court. In one, Superior Court No. 2206 October Term, 1979, he was found guilty of Theft by Deception and Criminal Attempt. In the other, Superior Court No. 555 Philadelphia, 1980, he was found guilty of Theft by Deception and Bad Check. The request pertained to all three cases.

      . Appellant released the first public defender assigned to him after plea negotiations for all three cases were unsuccessful.


author: MONTEMURO, Judge:

text:
    435 A.2d 1274
    COMMONWEALTH of Pennsylvania, v. Gary Keith FORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 16, 1981.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case is before the court on direct appeal from a judgment of sentence for violation of probation. On February 7, 1980 appellant was sentenced to six (6) to twelve (12) months imprisonment. Post-trial motions were denied:

Appellant contends that the facts of the case do not justify the length of the sentence and that the judge failed to take into consideration appellant’s drinking problem. A review of the record indicates that the lower court judge failed to state in the record his reasons for the sentence imposed. Furthermore, there is no indication in the record that the trial judge considered the character and background of appellant at the time of sentencing. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Cottle, 260 Pa.Super. 85, 393 A.2d 1024 (1978).

For the foregoing reasons, we vacate the judgment of sentence and remand the case for resentencing.


author: MONTGOMERY, Judge:

text:
    435 A.2d 1275
    Frank J. FIDEI and Joe M. Lena, Appellants, v. Fred P. UNDERWOOD, his Unknown Heirs, Assigns or Devisees.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      Robert J. Milie, Greensburg, for appellants.
    George M. Lynch, Latrobe, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from an order of the lower court, sitting en bane, which sustained the exceptions filed by the Defendant-Appellees and dismissed the Plaintiff-Appellants’ Complaint. The case involves an action to quiet title commenced by the Plaintiff-Appellants, who purchased property at a Treasurer’s sale. The Defendant-Appellees are the heirs of the deceased former owner of the property.

The record shows that on May 8,1926, Fred P. Underwood purchased a tract of land situated in Derry Township, Westmoreland County, from the Baum Coal Company. The property consisted of some 35% acres. On August 8, 1947, Fred P. Underwood died testate, and by the residuary clause in his will the property in question passed to his three sons, James M. Underwood, Joseph R. Underwood and Thomas P. Underwood. They, or their respective heirs, are the real Appellees.

Taxes assessed against the property for the tax years 1953 and 1954 were not paid, and on August 6, 1956 the County Treasurer sold the property to the Westmoreland County Commissioners. No right of redemption was ever exercised. Notice of the proposed Treasurer’s sale was sent to “Fred P. Underwood, Latrobe, Pennsylvania,” the then-deceased owner, but the letter containing the notice was returned marked as “unclaimed”. No notice was ever given by the Treasurer to the Appellees, the then true owners of the property, as required by the County Return Act of 1931, nor was any notice of the sale posted on the property itself by the Treasurer prior to the sale, an alternative method of service provided in the same Act. The Treasurer did give newspaper notice, which is also required under the aforementioned statute, that the property would be sold. Notice was given in the County Law Journal and in two newspapers of general circulation that two properties belonging to Fred P. Underwood would be sold. Such newspaper notices described the properties as: “12A Freeport Coal” and “34V5 A.” of land in Derry Township. No other descriptions of the property were given.

In 1975 the Appellants purchased the subject property from the Westmoreland County Commissioners. Subsequently they filed the instant action to quiet title against Fred P. Underwood, his unknown heirs, assigns or devisees.

The lower court initially found the sale of the land to the Appellants to be valid. After the Appellees filed exceptions, however, the lower court, sitting en bane, sustained the Appellees’ exceptions and dismissed the Appellants’ Complaint. In its Opinion the trial court found that the description of the property in the newspaper advertisements was legally sufficient, citing for authority the decisions of the Supreme Court in Bannard v. New York State Natural Gas Corp., 448 Pa. 239, 293 A.2d 41 (1972) and Boulton v. Starck, 369 Pa. 45, 85 A.2d 17 (1951). Further, the trial court found that the defects in service of notice of the sale, as required by the County Return Act of 1931 (72 P.S. § 5971g), were validated by the curative provisions set forth in the Act of November 26, 1978, P.L. 1294, No. 310, § 1, immediately effective, 21 P.S. § 283.3. Subsequently, in an opinion explaining its reversal of the trial court’s decision, the court en banc stated that the trial court had given too broad an application to the 1978 curative Act. The court en banc noted that the County Return Act of 1931 required the County Treasurer to serve notice upon the owner of the land. At the time the taxes became delinquent, and at the time of the sale, the owners were the aforementioned sons of Fred P. Underwood. However, the notices were sent to the father, who by then had been deceased for several years. For these reasons, the court en banc found that more than a simple cure of a technically defective notice was required, as there was no notice to the then-existing true owners. The court en banc concluded that the Act of November 26, 1978 did not apply in such circumstances, and held the sale to be invalid. In sustaining the exceptions filed by DefendantAppellees and dismissing the Complaint, the court en banc rejected an alternative claim for reimbursement of various expenses by Plaintiff-Appellants, a subject which will be more fully discussed later in this Opinion.

After a thorough review of the total record, we have concluded that the lower court en banc was correct in holding that the unquestioned defects in the 1956 tax sale proceedings in this case could not be cured by the application of the Act of November 26, 1978. That Act, by its terms, is clearly intended to validate pre-December, 1965 tax sale proceedings involving only minor technical defects. Defects such as the filing of a proof of service may not be equated with a total failure by the County Treasurer to effect any notice to the true owner or owners, in this case the sons of the deceased former owner. The Act of November 26, 1978 may not be held to provide a cure for such serious procedural defects. It has been held that the notice provisions of a tax sale statute must be strictly complied with to guard against deprivation of property without due process. See Patterson v. Oakes, 260 Pa.Super. 415, 394 A.2d 995 (1978). The failure of any actual or attempted notice to the true owners completely contravened the provisions of the County Return Act of 1931, cited supra, and the August, 1956 Treasurer’s sale must be invalidated. Compare Blasi v. Alexander, 195 Pa.Super. 634, 171 A.2d 904 (1961).

We are left with the Appellants’ remaining contention that, even if the sale was not valid, the lower court erred in refusing to order reimbursement to them for several items of expense they claimed. These included the purchase price for the property at the Treasurer’s sale, taxes paid for the years 1974 through 1978 on the acreage and coal contained thereon, and attorneys costs and fees incurred in the whole transaction.

The lower court en banc initially noted that the taxes paid on “12 acres of Freeport coal” were paid because of an error in the Tax Assessment Office. The court found that the 12 acre parcel was not included in the proceedings under which the Appellants procured their deed, nor was such parcel included in their action to quiet title. Therefore, the court found it had no basis for ordering any restitution of taxes erroneously paid by Appellants on that property in the quiet title proceedings. The Appellants have offered no argument on this appeal specifically contesting that finding by the lower court, and no basis for reversal of that aspect of the lower court’s findings is apparent to us. Likewise, the Appellants have not presented any argument to this Court as a basis for recovery of attorneys costs and fees incurred, and we find no ground for ordering the Appellees to reimburse the Appellants for such expenses.

The Appellants note in their Brief a recognition that “.. . the general rule of law governing tax sale situations is that there would be no reimbursement of any costs or taxes paid. . . ”. Nevertheless, they argue that equity demands that they be reimbursed by the Appellees for taxes paid (other than on the coal parcel discussed above), from 1974 through 1978, and for the purchase price Appellants paid for the property. We must first agree with the Appellants that the general rule is that there is no right of reimbursement, at least from the true property owners, for either the purchase cost or subsequent tax payments by a tax sale purchase after an invalid sale. Gaul v. McLaughlin, 207 Pa.Super. 434, 217 A.2d 757 (1966); See also United States v. 137.02 Acres of Land, 334 F.Supp. 1021 (1971). We cannot agree that unjust enrichment or any other equitable principle justifies forcing the true property owner or owners to reimburse tax and other costs paid, with respect to their land, without their proven knowledge, request, or even consent. Thus, we see no basis for ordering such restitution here, against the true property owners.

The order of the lower court is hereby affirmed.

      . See the Act of May 29, 1931, P.L. 280, § 7, as amended, 72 P.S. 597 lg, which was applicable to Westmoreland County at the time of the sale.

      . The Act of November 26, 1978 provides:
      Whenever, prior to December 31, 1964, any property was sold by a county treasurer for the purpose of securing the payment of delinquent taxes which were assessed and levied against such property, and no proof of service was filed or in lieu of personal service the property was not properly posted or if it was properly posted the certificate of posting was not filed or as if the proof of service had been filed, or if no proof was filed, if, in all other respects the law relating to the holding of such sale was fully compiled with, all such sales and county treasurer’s deeds are hereby ratified, confirmed and validated and the title to any such property purchased by any person or by the county commissioners of the county is hereby declared to be as valid as if the proof of service had been filed or as if the property had been properly posted or the certificate of posting had been properly filed.

      . The court en banc pointed out that the tax assessment records then still listed the decedent as the owner, but that his estate no longer owned it. The General County Assessment Law, Act of May 22, 1933, P.L. 853, art. IV, § 417, 72 P.S. § 5020-417, permits the assessment of property in the name of the decedent only so long Las the property shall still belong to the estate of such deceased person.

      . In this case, any blame is probably correctly placed in the office of the County Assessor in 1956. The Assessor had (and has) the duty, under law, to ascertain the owner of each tract of land at the time of each assessment of taxes. See The General County Assessment Law, Act of May 22, 1933, § 407(c), as amended, 72 P.S. § 5020-407(c); Shafer v. Hansen, 389 Pa. 500, 133 A.2d 538 (1957).

      . Because we reach this conclusion, it is not appropriate that we examine the issue of whether the curative Act of November 26, 1978 violates due process Constitutional guarantees, as argued by the Appellees. Also, we need not pass upon the Appellees’ contention that the description of the property was insufficient in the advertised notices of the sale.

      . We recognize that the Supreme Court noted in Shafer v. Hansen, supra at footnote 4 that the defendants were paying plaintiffs for tax money with interest, expended by the plaintiffs in the purchase of the defendants’ property at a Treasurer’s sale. However, the Court was not there presented with the issue of a right to reimbursement, and was only noting a stipulation of the parties as to agreed relief upon a disposition of the property in favor of the defendants.

      . We express no opinion as to whether the Appellants may have a cause or causes of action for restitution or damages against any other person or entity, for the losses they have experienced in this transaction.


text:
    435 A.2d 1278
    Joseph P. FORD, Appellant, v. Helen Feaster FORD.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Denied March 1,1982.

      Joseph P. Ford, in pro. per.
    Richard H. Knox, Philadelphia, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The appellant, Joseph P. Ford, instituted this divorce action on July 27, 1979. Previously, his wife, Helen Feaster Ford, had instituted a similar action against him which resulted in the entry of a Decree in Divorce A.V.M. on December 18, 1979. That decree was the subject of an appeal to this court at No. 202 Philadelphia, 1980, which was dismissed on August 5, 1981. A petition for allocatur in that matter was thereafter filed with the Supreme Court and is currently pending at No. 460 E.D.Misc.Dkt., 1981.

After having appointed a master in the husband’s case, the lower court, on January 30, 1980, vacated the appointment of the master and dismissed the action without prejudice to reinstitute it. It assigned, as the reason for its action, the entry of the decree in the other action filed by the wife. The husband’s appeal from that order is now before us.

We are of the opinion that the vacation of the order appointing the master was within the discretion of the lower court, but the dismissal of the husband’s action was error, although done so without prejudice.

Cross suits in divorce have long been recognized as permissible. Hilyard v. Hilyard, 87 Pa. Super. 1 (1926); Ulizio v. Ulizio, 96 Pa. Super. 91 (1929).

Under the 1961 amendment to Pa.R.C.P. 1130(b), a defendant is now permitted to set forth in his answer under the heading “Counterclaim” a cause of action in divorce or annulment. Thus a party may now, in one action, not only defend against the grant of a divorce sought by his or her spouse, but also may accomplish affirmative action and secure a divorce or annulment. As we interpret that rule, however, it is not mandatory that he do so. In Betz v. Betz, 103 Pa.Super. 306, 157 A. 359 (1931), we discussed this subject at length and reached the conclusion that the parties may file cross suits, as distinguished from cross libels in the same action, each seeking to secure a divorce in his or her favor but for separate and distinct reasons, and that one party cannot, by bringing an action, deprive the other party from doing the same. In Betz, we also stated that such right existed unless a final decree in divorce has been entered in the other action in which case the court should take cognizance of the decree entered in the other case and not attempt to set aside that judgment.

Here, a final decree has been entered in the wife’s case, but since it is on an appeal, we must further consider the effect of that appeal in the light of Betz.

In Foust v. Foust, 144 Pa.Super. 513, 19 A.2d 517 (1941), we cited White v. White, 106 Pa.Super. 85, 161 A. 464 (1932) for the principle that an appeal ordinarily suspends the operation of a decree in divorce, and we are still of that opinion and apply it in the present case, and therefore hold that dismissal of the husband’s action was error. However, this does not mean that the lower court could not control the progress of that case pending disposition of the appeal in the wife’s case. This was within its discretionary power. Pa.R. C.P. 1133 places in the hands of the court the right to hear a divorce case or appoint a master to hear the testimony; and its control over cases within its jurisdiction is extended by 42 Pa.C.S.A. § 323 to permit it to make such orders as the interests of justice or the business of the court may require.

Appellee would have us affirm the lower court in its dismissal of this action on the theory of lis pendens but as previously discussed, the two actions are based on separate grounds and each seeks a different result. We do not accept that argument.

Nor do we decide this case on the jurisdictional question under Pa.R.A.P. 1701 discussed by both appellant and appellee.

Appellee also argues that this is not an appealable order and the appeal should be quashed. Although the dismissal of appellant’s action was without prejudice, we think that provision does not make it interlocutory. We find no merit in this argument.

That part of the lower court order dismissing this action is reversed and the action reinstated; and further that part of the order vacating the order appointing the master is affirmed. Jurisdiction is not retained.

PRICE, J., concurs in the result.


text:
    435 A.2d 1280
    Frank GROSSMAN c/o Cedarbrook Realty v. Tina Weiser MITCHELL and Christine Pierson. Appeal of Tina Weiser MITCHELL.
    Superior Court of Pennsylvania.
    Submitted March 9, 1981.
    Filed Oct. 16, 1981.

      Irv Ackelsberg, Philadelphia, for appellant.
    Robert R. Guzzardi, Philadelphia, for appellees.
    HESTER, DiSALLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Plaintiff-Appellee Frank Grossman, c/o Cedarbrook Realty, initiated an action in the Municipal Court of Philadelphia to recover possession of certain real estate in the city of Philadelphia, and for back rent allegedly due under a lease of same entered into between him and Robert and Christine Pierson. Grossman secured a judgment for possession of the premises but his claim for back rent was denied due to the uninhabitable condition of the property, and judgment was entered for the tenants on this claim. He appealed to the Court of Common Pleas from the judgment entered for the tenants. He thereafter filed a notice of appeal, and affidavit of non-delay, and a complaint. However, notice of the appeal was not sent to the tenants within the time prescribed by Philadelphia Civil Rule 300 which requires service of notice of such an appeal within forty-eight (48) hours after it is filed. Grossman did not mail such notice to the tenants until several days beyond the allotted time. Furthermore, the receipts attached to the mailings were returned unsigned, and no further effort was made to accomplish service. Notably, the notice sent to the tenants was addressed to them at the leased premises, which they had been ordered to vacate.

Nevertheless, on December 18, 1979, Grossman entered a default judgment against the tenants for $1,316.00, and, thereafter, caused a writ of attachment execution to be issued against a savings bank account in the name of Robert Pierson in trust for Tina Weiser Mitchell.

Robert Pierson filed on March 18, 1980, a petition to strike the default judgment and to quash the appeal because of Grossman’s failure to serve notice of the appeal according to the requirements of Rule 300. The lower court denied the petition, from which action Robert Pierson took this appeal. After doing so, he died on August 20, 1980, and Tina Weiser Mitchell, the beneficiary of the bank account, was substituted for him as party-appellant.

Rule 300 (Star Rule *28) is specially adapted to landlord and tenant cases in the Philadelphia Municipal Court, and differs from Rule 310 which covers appeals from “other civil claims” in that court.

The pertinent parts of Rule 300 read:

“Municipal Court—Landlord and Tenant (D) Notice of the appeal, together with a copy of the praecipe, shall be served upon the appellee within forty-eight (48) hours after the appeal is taken. If the appellant is the plaintiff in the case, he shall, within ten (10) days after the service of the notice, file and serve upon the appellee a complaint in the form required in actions in assumpsit. If the appellant is the defendant in the case, he shall serve upon the appellee, with the notice of appeal, a rule to file his complaint within ten (10) days after service, under penalty of having his claim deemed abandoned. In either case, the period for filing the complaint may be extended by the Judge before the expiration thereof, on cause shown. If a complaint is not filed within the period herein limited or any extension thereof, or, if a rule to file a complaint is not served with-the notice of appeal or within five (5) days thereafter, the party failing to so file the complaint, or to serve the rule, shall be deemed to have abandoned his claim or appeal as the case may be. Proof of service in compliance with this rule shall be filed of record by the party making the same, and, unless such proof .is filed, the Prothonotary shall mark the record on the written order of the opposite party. (E) After the filing and service of the complaint, the practice and procedure in the case shall be the same as in actions of assumpsit.

The lower court held that the failure to send the required notice within forty-eight (48) hours after the appeal was filed was such a technicality that alone would not be a sufficient basis for striking the judgment.

It also held that said failure was not such a “fatal defect” that would warrant the relief requested. Although there are other issues raised, the primary question is whether failure to give the notice provided for in Philadelphia Rule 300(d) within the required time deprives the Common Pleas Court of jurisdiction to hear the appeal.

Under Pa.R.C.P., Rule 127(b) “[ejvery rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” We must, therefore, give full meaning to the requirement that in appeals of this nature, the appellant must serve notice of the appeal upon the appellee within forty-eight hours after the appeal is taken. It is admitted that notice was not given within that period, or even attempted to be given. Appellee argues, however, that appellant was not prejudiced because notice was sent to appellant before the expiration of the time allowed for taking the appeal. We cannot accept that excuse as that is not what the rule provides. Thus we have the bare question of whether the failure to comply with the rule affects the jurisdiction of the Common Pleas Court to entertain the appeal. We conclude that it does and, therefore, the appeal must be stricken for that reason.

Past decisions by this Court have recognized compliance with such time limitations as jurisdictional requirements. See, e. g., Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981) and, Drozdowski v. Keystone Truck Leasing, 277 Pa.Super. 55, 419 A.2d 657 (1980). Though the requirements for perfecting an appeal in the instant case are derived from local rules, this court had long recognized the inherent power of local courts to formulate their own rules of practice and procedure providing the rules are neither unreasonable nor contrary to existing laws. These rules are to be given weight equal to those established by our Supreme Court as long as they do not abridge, enlarge, or modify substantive rights of the litigant. Mikita v. Bailey Homes, Inc., 265 Pa.Super. 399, 401 A.2d 1367 (1979).

The rule herein in question is such a local rule. It merely sets forth one of the requirements for perfecting an appeal from the Municipal Court to the Court of Common Pleas of Philadelphia. It is, therefore, confined to practice and procedure in that judicial district and does not, if complied with, affect the substantive rights of the parties. Non-compliance, however, did affect the right of the appellee herein to receive adequate notice of the proceedings against him.

An analogous situation is found in this court’s disposition of an appeal involving Pa.R.C.P. 2254(b) which requires service of a complaint on third party defendant(s) within thirty days after commencement of the action to join absent an extension granted by the court. In that case, Bandes v. Klimoski, 260 Pa.Super. 137, 393 A.2d 1050 (1978), we held that noncompliance with the time requirements would result in the striking of the third party complaint. Furthermore, in Bandes we expressly rejected a claim similar to appellee’s herein that the untimely service was “merely a technical” breach. Bandes v. Klimoski, supra, 260 Pa. Super, at 141, 393 A.2d at 1052.

It is well settled that a Common Pleas Court will be considered the best authority as to the meaning of its own rules absent manifest error. Caples v. Klugman, 202 Pa.Super. 517, 198 A.2d 342 (1964); C.B. Company v. Rostraver Township Zoning Hearing Board, 49 Pa.Cmwlth. 204, 410 A.2d 1298 (1980). In the case at hand, however, we find just such manifest error. To reiterate, Rule 300 clearly states that “[njotice of the appeal . . . shall be served upon the appellee within forty-eight (48) hours after the appeal is taken.” (Emphasis added). The language of the local rule operates to make timely service of the notice of appeal a mandatory perfection requirement. As a result, noncompliance is a fatal defect to such perfection. The lower court, therefore, lacked jurisdiction to entertain the appeal of Grossman. In the past, we have allowed appeals to the lower courts to stand on less than complete compliance with mandatory perfection requirements only where there has been a valid attempt at timely compliance. Black and Brown, Inc. v. Home for the Accepted, Inc., 233 Pa.Super. 518, 335 A.2d 722 (1975). The record herein evinces that no such valid attempt at timely compliance was made by appellee. The granting of a default judgment in the absence of jurisdiction is, therefore, manifest error on the part of the lower court. The appeal should have been quashed by that court.

The order of the lower court is reversed, the judgment is stricken, the attachment of the bank account is dissolved and the appeal from the judgment from the Municipal Court to the Common Pleas Court is dismissed.

      . No mention is made of Christine Pierson, the other original defendant in the case before us. The lower court ignored her existence and recognized Robert Pierson as the sole petitioner. We shall do likewise for the purpose of this appeal.


author: HOFFMAN, Judge:

text:
    435 A.2d 1283
    FIRST NATIONAL BANK OF PENNSYLVANIA, v. Calvin W. COLE, Appellant. FIRST NATIONAL BANK OF PENNSYLVANIA, v. PROFESSIONAL TIRE CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Oct. 16, 1981.

      Walter A. Dart, Jr., Erie, for Cole, appellant.
    R. Perrin Baker, Erie, for Professional Tire Corp., appellant.
    Norman H. Stark and Charles D. Marlett, Erie, for appellee.
    Before PRICE, CAVANAUGH, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that they presented sufficient evidence that appellee had impliedly elected to retain collateral in satisfaction of appellants’ obligations to appellee to warrant opening of judgments confessed against them. We disagree and, accordingly, affirm the orders of the lower court.

In July, 1977, appellee, The First National Bank of Pennsylvania, sold a tire recapping business to appellant Professional Tire Corporation (PTC), which granted appellee a security interest in all of its personal property and the proceeds thereof. As further security, appellant Calvin W. Cole and several others personally guaranteed the loan. PTC and the individual guarantors executed notes containing confession of judgment clauses. Subsequently, appellee advanced PTC additional sums secured by the assets of PTC. On February 13, 1979, appellee notified appellants that the loans, then aggregating $1,800,000, were in default, and proposed to take possession of the collateral and sell it in a commercially reasonable manner. Appellee promptly took possession of the collateral, sold the inventory of finished tires and two trucks, and attempted to collect the accounts receivable. Appellee then engaged Cole to operate the plant pending its eventual sale as a going concern. On May 3, 1979, appellee notified appellants that it anticipated a substantial deficiency as a result of its efforts to dispose of the collateral and requested Cole and the other guarantors to arrange for payment pursuant to their respective personal guarantees of the PTC corporate debt. Appellee was unable to sell the plant and, in September, 1979, labelled each piece of plant equipment as “PROPERTY OF FIRST NATIONAL BANK OF PA.” On February 7, 1980, appellee confessed judgment against PTC in the amount of $1,962,133.35, and caused writs of execution to issue on that judgment and on one in the amount of $58,333 which it had earlier confessed against Cole. On February 25, 1980, appellants filed petitions to open the respective judgments, alleging that appellee had impliedly elected to retain the collateral in satisfaction of their obligations to appellee. The lower court denied the petitions. This appeal follow'ed.

The party seeking to open a confessed judgment must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Kardos v. Morris, 470 Pa. 337, 341-42, 368 A.2d 657, 659 (1977). See also Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 263, 392 A.2d 784, 785 (1978); Pa.R.Civ.P. 2959(e).

Appellants allege as their defense that appellee had impliedly elected to retain the collateral in satisfaction of their debts according to section 9-505(2) of the Uniform Commercial Code, 13 Pa.C.S.A. § 9505(b), when it seized the collateral and failed to dispose of all of it for approximately one year before attempting to execute upon judgments entered against them. Upon default by a debtor, a secured party may, pursuant to Article Nine of the Uniform Commercial Code: (1) obtain a judgment on the debt, 13 Pa.C. S.A. § 9501(a); (2) repossess and sell or otherwise dispose of the collateral, id. § 9504(a); or (3) repossess and retain the collateral in satisfaction of the debt, id. § 9505(b). See J. White & R. Sommers, Uniform Commercial Code, § 26-4 (2d ed. 1980). See also Alliance Discount Corp. v. Shaw, 195 Pa.Super. 601, 605, 171 A.2d 548, (1961) (when plaintiff entered judgment on note, it could have used the judgment as a means of recovering the debt or it could repossess and sell collateral and use judgment to recover any. deficiency); U.C.C. § 9-505, Official Comment 1. Assuming, arguendo, that an implied election to retain the collateral in satisfaction of the debts is a meritorious defense to an action to collect a deficiency, we conclude that appellants have failed to present sufficient evidence to require submission of the issues to a jury. Appellants have not alleged, nor have they presented any evidence, that appellee manifested an intention to retain the collateral in satisfaction of their obligations to appellee. See Nelson v. Armstrong, 99 Idaho 422, 582 P.2d 1100 (1978); Jones v. Morgan, 58 Mich.App. 455, 228 N.W.2d 419, (1975); S. M. Flickinger Co. v. 18 Genesee Corp., 71 App.Div.2d 382, 423 N.Y.S.2d 73 (1979). On the contrary, the record amply shows that it had elected to repossess and sell the collateral and hold appellants liable for any deficiency. See 13 Pa.C.S.A. § 9504(a); Alliance Discount Corp. v. Shaw, supra. Consequently, the lower court properly denied appellants’ petitions.

Orders affirmed.

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

      . Section 9505(b) provides, in pertinent part:
      [A] secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor .... In absence of [a] written objection [to the proposal,] the secured party may retain the collateral in satisfaction of the debtor’s obligation.

      . Because appellants failed to allege in their petitions to open that appellee had not disposed of the collateral in a commercially reasonable manner, see 13 Pa.C.S.A. § 9504(c), we need not consider appellants’ arguments that appellee forfeited its right to a deficiency judgment under section 9504(b), see generally J. White & R. Sommers, supra at § 26-15, and that section 9507 is not appellants’ sole remedy. See Pa.R.Civ.P. 2959(c) (“A party waives all defenses and objections which he does not include in his petition or answer.”). See also Wolgin v. Mickman, 233 Pa.Super. 218, 225 n.10, 335 A.2d 824, 827 n.10 (1975).


text:
    435 A.2d 1285
    BELL FEDERAL SAVINGS AND LOAN ASSOCIATION OF BELLEVUE, formerly First Federal Savings and Loan Association of Bellevue, a corporation, v. LAURA LANES, INC., a corporation, and American Sports, Inc., a corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Oct. 16, 1981.

      John M. Silvestri, Pittsburgh, for appellants.
    Thomas J. Jackson, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court abused its discretion in denying their petition to open a judgment confessed upon a mortgage note. We disagree and, accordingly, affirm the order of the court below.

On January 4, 1966, appellants borrowed $570,000 from appellee’s predecessor in interest to finance a bowling alley and restaurant and signed a mortgage note containing standard acceleration and confession of judgment clauses. Four years later, on October 2, 1970, appellants went into a prolonged receivership. During the receivership appellee unsuccessfully attempted to collect its mortgage. On January 19, 1976, appellee accelerated the balance due on the mortgage, demanded full payment, and refused to accept any lesser, amounts in accord and satisfaction. Nine months later, in March, 1977, a fire partially destroyed the mortgaged premises. The insurer, suspecting arson by appellants, refused to pay any claim on behalf of the parties or the receiver. On July 1, 1977, the receivership terminated without prejudice to appellee’s efforts to collect the indebtedness. On November 18, 1977, appellants filed suit against the insurer and appellee, alleging that both had defamed appellants by inducing an arson investigation and that both had breached contractual duties to insure the mortgaged premises. On January 10, 1978, appellee confessed the judgment which has prompted this appeal.

Appellants timely filed a petition to strike or open the judgment, alleging that such relief was justified for a number of reasons. On April 18,1979, the lower court, reserving the petition to open, denied the petition to strike. This court affirmed in an unpublished opinion. Bell Federal Savings & Loan Association of Bellevue v. Lanes, 271 Pa.Super. 593, 419 A.2d 185 (1979). Subsequently, the lower court denied appellants’ petition to open the judgment. This appeal followed.

To open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. First National Bank of Pennsylvania v. Cole, 291 Pa.Super. 391, 393, 435 A.2d 1283, 1284 (1981); Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 392 A.2d 784 (1978); Pa.R.Civ.P. 2959. “[E]quitable considerations are generally no longer relevant” unless related to a particular defense asserted. Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977). The petitioning party has the burden of producing sufficient evidence to substantiate its alleged defenses. See Pa.R.Civ.P. 2959(e); America Corp. v. Cascerceri, 255 Pa.Super. 574, 580 n.6, 389 A.2d 126, 129 n.6 (1978); Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa. Super. 176, 181, 374 A.2d 1376, 1381 (1977). The defenses asserted must be “valid.” Kardos v. Morris, supra, 470 Pa. at 341, 368 A.2d at 660; Fidelity Bank v. Act of America, Inc., supra, 258 Pa.Super. at 264, 392 A.2d at 785; First Pennsylvania Bank N. A. v. Weber, 240 Pa.Super. 593, 603, 360 A.2d 715, 721 (1976). For the reasons that follow, we conclude that appellants’ alleged defenses either do not constitute “valid defenses,” or lack the evidentiary basis required to submit an issue to the jury.

Appellants contend first that various matters pertaining to the receivership warrant opening the judgment. We disagree. Appellee’s alleged “acquiescence]” in the receivership, a compulsory court proceeding, see Baur v. Wilkes-Barre Light Co., 259 Pa. 117, 122, 102 A. 430, 432 (1917); 5 Goodrich-Amram 2d § 1533(e):1 (1977), was no bar to its accelerating the indebtedness or confessing judgment, particularly when the order terminating the receivership expressly and unqualifiedly declared that appellee’s rights “shall in no way be affected by the[ ] [receivership] proceedings.” Similarly, appellants do not have standing to assert that the receiver allegedly gave appellee a preference over other creditors. Thus, neither of appellants’ first two arguments constitutes a valid defense. Appellants next argue that the judgment should be opened because payments to appellee during the receivership reduced the outstanding indebtedness and because appellants had a “positive escrow balance” one year after the confession of judgment. Neither of these contentions have an adequate basis in the record to require them to be submitted to a jury and, therefore, cannot support opening the judgment. Neither the pleadings nor the depositions specify any dates or amounts of the purported payments. Likewise, evidence that appellants had a positive escrow balance after the confession of judgment is not relevant absent other evidence showing how that balance related to the outstanding indebtedness. See First Pennsylvania Bank N. A. v. Weber, supra (upon failure to produce sufficient admissible evidence, petition to open will be denied).

Appellants next allege that appellee “refused to accept monthly installments” after accelerating the indebtedness. This allegation is not a valid defense. In a commercial mortgage, an acceleration clause is generally honored; and, once there has been a default and an acceleration, the mortgagee need not accept any less than the full accelerated amount. Indeed, the mortgagee who accepts lesser amounts risks having its right to insist on the accelerated amount deemed waived. Ministers and Missionaries Board v. Goldsworthy, 253 Pa.Super. 321, 328-329, 385 A.2d 358, 362 (1978). Here appellants never directly deny the default. The mortgage authorizes acceleration. Appellants do not show that appellee’s exercise of it was improper. Thus we agree with the lower court that appellee’s refusing monthly payments, if any were tendered, was within its rights and not a basis for opening judgment.

Appellant contends next that appellee breached the mortgage by obtaining insufficient insurance on the premises, thus excusing appellant from a duty to pay the mortgage note. This contention misconstrues the mortgage and asserts an improper legal conclusion and is thus not a valid defense. The mortgage contained a standard provision requiring appellants, as mortgagors, to pay “all premiums . . . for policies of insurance against fire ... as may be reasonably required by [appellee], in amounts . . . satisfactory to [appellee], all such policies to be assigned for the benefit of [appellee].” (Emphasis supplied.) The record shows that appellants initially chose the police, company, and amount of coverage, then submitted it to appellee which clerically approved the insurance provided that the policy named appellee as a payee and first mortgagee, and was in an amount sufficient to cover appellee’s own interest. Nothing in the mortgage itself or approval procedure precluded appellants from getting other insurance for themselves, or gave appellants a justifiable reason to rely on appellees to insure anything but is own interest. Even if there was some obligation upon appellee to procure insurance, it is not a condition precedent to appellants’ duty to repay the loan according to the terms of the note. See Fidelity Bank v. Act of America, Inc., supra; Kennett Credit Co. v. Graybeal, 30 Pa.D.&C.2d 420 (C.P. Chester County, 1963).

Appellants contend finally that the confessed judgment should be opened to await the outcome of the pending litigation against appellee and the insurer. The lower court rejected this contention because the unliquidated claim constituted no set-off to the indebtedness. We agree. It is well settled that “[t]o a judgment there can be no set-off of a debt not in judgment” except when the “subject matter of defense is attached to the judgment or the consideration on which it rests.” Pollard & Brant, Inc. v. Stein, 81 Pa.Super. 374, 376-77 (1923), quoting Thorp v. Wegefarth, 56 Pa. 82, 85-86 (1868); see Fidelity Bank v. Act of America, Inc., supra. The exception refers to those claims and defenses affording valid defenses under Pa.R.Civ.P. 2959. Kardos v. Morris, supra, 470 Pa. at 341-342, 368 A.2d at 660. Though appellants’ pending litigation also involves appellee and concerns the mortgaged premises, it is ostensibly based on a separate agreement with a third party (the insurer) and a separate set of obligations to appellants. Appellants’ petition to open this independent and otherwise valid confessed judgment to await the possibility of another judgment overstates the equitable powers of the court. The court, upon entering the second judgment—if appellants are ultimately successful in their insurance-related suit—will be able to mold it to prevent a double recovery by appellee. The contingency of a future, essentially unrelated, outcome thus does not excuse appellants from meeting their present certain obligation.

For the reasons above appellants’ petition to open this confessed judgment fails either by not averring valid defenses or in not producing sufficient evidence to bring an issue to the jury, and accordingly was properly denied by the lower court.

Order affirmed.

      . Other uncontradicted evidence on the record showed that under appellee’s accounting methods a “positive escrow balance” implied an arrearage or default.

      . Appellants’ contentions that appellee induced the default and that appellee acted so as to impugn appellants’ credit reputations are unsupported. Consequently, those contentions could not be submitted to the jury. See Tenreed Corp. v. Philadelphia Folding Box Co., 256 Pa.Super. 49, 54, 389 A.2d 594, 598 (1978); First Pennsylvania Bank N. A. v. Weber, supra.

      . Appellants’ three remaining challenges—to the amount of the judgment, to appellee’s right to obtain it, and to the sufficiency of appellee’s averment of default—have already been adjudicated in the prior unsuccessful appeal from the order denying their petition to strike. Thus, despite briefing them anew, appellants are precluded from asserting them here. Oak Lane Shopping Center, Inc. v. Flame, 264 Pa.Super. 9, 14, 398 A.2d 721, 724 (1979).


author: HOFFMAN, Judge: VAN der VOORT, Judge,

text:
    435 A.2d 1288
    THOMAS M. DURKIN & SONS, INC., a Pennsylvania Corporation v. NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY and H. Gilroy Damon and H. Gilroy Damon Associates, Inc. and Haag and D’Entremont. Appeal of NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed Oct. 16, 1981.

      George W. Thompson, Upper Darby, for appellant.
    Vincent B. Mancini, Media, for Durkin, appellee.
    Peter A. Dunn, Media, for Gilroy, appellee.
    Robert D. Thompson, Philadelphia, for Haag, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Following a jury trial in this assumpsit action, the lower court entered a $32,856.10 verdict for appellee against appellant only and granted a nonsuit with respect to the additional defendants. Appellant subsequently filed post-trial motions seeking a new trial, judgment n. o. v., or the removal of the nonsuit. The lower court denied all three post-trial motions, and appellant took this appeal. We are unable to reach the merits of the appeal, however, because the order denying appellant’s post-trial motions has not been reduced to judgment and docketed.

An order refusing a new trial or judgment n. o. v. is interlocutory and nonappealable, see, e. g., Slagter v. Thrifty-Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Richard v. Chester Extended Care Center, 287 Pa.Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981), and does not become appealable until it is “reduced to judgment and docketed.” Pa.R.A.P. 301(c). See also Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981).

Similarly, an appeal from an order denying appellant’s motion to remove a nonsuit is interlocutory and nonappealable. Rule 227.1 of the Rules of Civil Procedure sets forth the time for filing all post-trial motions after a trial by jury. It provides:

All post-trial motions after trial by jury, including a motion for a new trial, judgment non obstante veredicto, judgment upon the whole record after disagreement of a jury, removal of a nonsuit and in arrest of judgment, shall be filed within ten (10) days after nonsuit or verdict or disagreement of the jury.

(Emphasis added.) The rule was promulgated in 1977 to provide some uniformity in the area of civil post-trial motions. See E. J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1. See also Pa.R.Civ.P. 1038(d) (filing motions for new trial, judgment n. o. v., and removal of nonsuit not permitted after non-jury trial). Following the denial of post-trial motions, judgment must be entered upon the docket before the matter is properly appealable. Pa.R.A.P. 301(c). We cannot discern any basis for treating the propriety of an appeal from an order denying a motion to take off a nonsuit any differently from that of an order denying a new trial or judgment n. o. v. The motions are to be filed at the same time, before the same court. We can find no justification for developing different procedural prerequisites to appeal for these similar motions. Accordingly, because judgment has not been entered, the entire appeal must be quashed.

Appeal quashed.

VAN der VOORT, J., files a concurring and dissenting opinion.

VAN der VOORT, Judge,

concurring and dissenting:

I concur with the majority that the part of this appeal which was taken from the Order of the court below refusing appellants’ motion for a new trial and judgment, N.O.V. is interlocutory and unappealable as no judgment has been entered.

However, I respectfully disagree with the majority as to the order refusing to strike the compulsory nonsuit.

“An appeal does not lie from the entry of a judgment of nonsuit but rather from the refusal to take it off .... (Citations deleted) This applies to actions at law as well as in equity.” Kukich v. Serbian E. Orth. Ch. of Pittsburgh, 415 Pa. 28, 28-29, 202 A.2d 77 (1964). See also: Jervis Will, 443 Pa. 226, 279 A.2d 151 (1971). Therefore, that part of the decision of the lower court refusing to take off the nonsuit is properly before this court for review. As the evidence against Damon and H. Gilroy Damon, an individual, and Haag is insufficient to prove a case against them or any of them, the granting of a compulsory nonsuit was proper.

I would affirm that part of the decision of the court below which sustains the motions for nonsuit in favor of Damon, H. Gilroy Damon, an individual and Haag; I would quash the appeal of the Nether Providence Township School Authority.


text:
    435 A.2d 1290
    Albert L. INSELBERG, v. EMPLOYERS MUTUAL COMPANIES, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Oct. 16, 1981.

      Leonard S. Lipson, Philadelphia, for appellant.
    William H. Bishop, III, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellee brought this action in assumpsit against appellant, his No-Fault insurer, alleging that he had been injured while stepping from his automobile onto a snow-covered curb. Appellant denied liability and subsequently moved for summary judgment, contending that the injury did not arise out of the operation, maintenance or use of a motor vehicle. 40 P.S.A. § 1009.103. Appellee filed a cross-motion for summary judgment, contending that his injuries were compensable under the No-Fault Act. The lower court denied appellant’s motion and granted appellee’s cross-motion as to liability only. Appellant then took this appeal in which it challenges the granting of appellee’s motion for summary judgment and the denial of its motion. Because we find the appeal to be premature, we do not address the merits of appellant’s contentions and, instead, quash the appeal. See 42 Pa.C.S.A. § 704(b)(2); Gurnick v. Government Employees Insurance Company, 278 Pa.Super. 437, 439 n.2, 420 A.2d 620, 621 n.2 (1980) (Superior Court may raise an issue of its jurisdiction sua sponte).

Rule 1035(b) of the Rules of Civil Procedure permits a court to grant summary judgment with respect to liability only: “A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.” (Emphasis added.) Such an order is, by definition, “interlocutory in character” and clearly nonappealable. See Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 434 A.2d 752 (1981); Newill v. Piccolomini, 228 Pa.Super. 220, 323 A.2d 40 (1974); 2 Goodrich-Amram 2d § 1035(b):10 (1976); 2B Anderson, Pennsylvania Civil Practice § 1035.25 (1969). Similarly, an order refusing a motion for summary judgment is interlocutory and nonappealable (absent certification) until a final order is entered. See Lane v. Schacht, 260 Pa.Super. 68, 393 A.2d 1015 (1978); Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). Accordingly, the entire appeal is premature and must be quashed.

Appeal quashed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq.

      . A summary judgment as to liability only, would be appealable if it were certified pursuant to 42 Pa.C.S.A. § 702(b). Appellant has failed to perfect our jurisdiction pursuant to that statute, however.


text:
    435 A.2d 1292
    Anne S. LEVIN, a Minor, by Her Parents and Natural Guardians, Marvin J. Levin and Charlotte W. Levin and Marvin J. Levin and Charlotte W. Levin, in their own right, Appellants, v. DESERT PALACE, INCORPORATED, t/a Caesar’s Palace.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Oct. 16, 1981.

      Gordon Gelfond, Philadelphia, for appellants.
    Joel Paul Fishbein, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Following the lower court’s granting appellee’s motion for compulsory nonsuit in this trespass action, appellant moved to have the nonsuit removed. The lower court denied appellant’s motion, prompting this appeal. We are unable to reach the merits of the appeal, however, because the order denying appellant’s motion has not been reduced to judgment and docketed.

It is clear that an order refusing a new trial or judgment n. o. v. is interlocutory and nonappealable, see, e. g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981); Mitchell v. United Elevator Co., 290 Pa.Super. 476, 434 A.2d 1243 (1981); Richard v. Chester Extended Care Center, 287 Pa.Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981), and does not become appealable until it is “reduced to judgment and docketed.” Pa.R.A.P. 301(c). Cf. Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981) (orders denying exceptions following nonjury trial, held not appealable).

Similarly, an appeal from an order denying appellant’s motion to remove a nonsuit is interlocutory and nonappealable. Rule 227.1 of the Civil Procedure sets forth the time for filing all post-trial motions after a trial by jury. It provides:
All post-trial motions after trial by jury, including a motion for a new trial, judgment not obstante veredicto, judgment upon the whole record after disagreement of a jury, removal of a nonsuit and in arrest of judgment, shall be filed within ten (10) days after nonsuit or verdict or disagreement of the jury.

(Emphasis added.) The rule was promulgated in 1977 to provide some uniformity in the area of civil post-trial motions. See. E. J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1. See also Pa.R.Civ.P. 1038(d) (filing motions for new trial, judgment n. o. v., and removal of nonsuit not permitted after non-jury trial). Following the denial of post-trial motions, judgment must be entered upon the docket before the matter is properly appealable. Pa.R.A.P. 301(c). We cannot discern any basis for treating the propriety of an appeal from an order denying a motion to take off a nonsuit any differently from that of an order denying a new trial or judgment n. o. v. The motions are to be filed at the same time, before the same court. We can find no justification for developing different procedural prerequisites to appeal these similar motions. Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, supra 291 Pa.Super. at 405, 435 A.2d at 1289-1290. Accordingly, because judgment has not been entered, the appeal must be quashed.

Appeal quashed.

       Appellant’s counsel was certainly aware of the need to have judgment entered because the trial court specifically informed him of his obligation to file a praecipe to have judgment entered. N.T. 28-29.


text:
    435 A.2d 1293
    COMMONWEALTH of Pennsylvania, v. Eva M. KUJAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed Oct. 16, 1981.

      Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in failing to dismiss all of the charges against her pursuant to Pa.R. Crim.P. 1100. We agree and, accordingly, reverse the judgment of sentence and order appellant discharged.

In a written complaint filed on April 22, 1978, appellant was charged with, inter alia, two misdemeanors and two summary traffic offenses. On September 20, 1978, the Commonwealth obtained a one hundred eighty (180) day extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100(c). On May 7, 1980, appellant filed a petition to dismiss the charges against her pursuant to rule 1100(f). The lower court granted the petition in part, dismissing the two misdemeanor charges because the Commonwealth admittedly had not complied with rule 1100. The lower court, however, denied the petition as to the summary offenses on the ground that rule 1100 did not apply to those charges. Appellant was subsequently tried in Common Pleas Court, found guilty of the summary offenses, and sentenced. Following the denial of post-verdict motions, appellant took this appeal.

Appellant contends that the summary offenses with which she was charged were part of a “court case” for the purposes of rule 1100. We agree. Rule 1100(a)(2) provides: “Trial in a court case in which a written complaint is filed against a defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” (Emphasis added.) A “Court Case” is defined by rule 3(f) as “a case in which one or more of the offenses charged is a misdemeanor . . . . ” (Emphasis added.) In Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978), the defendant was charged with a misdemeanor and a summary offense. On appeal, this Court ordered him discharged of both offenses because the Commonwealth had failed to establish that it was entitled to an extension under rule 1100(c). Id., 257 Pa.Super. at 536, 390 A.2d at 1367. Under Antonuccio, if appellant were tried for misdemeanors and summary offenses at the same time, we would be compelled to order her discharged because the Commonwealth admittedly violated rule 1100. By admitting its transgression vis-a-vis the misdemeanors before trial, the Commonwealth could not preserve the summary offenses. Cf. Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976) (Commonwealth cannot use nolle prosequi as a subterfuge to obtain an extension absent compliance with rule 1100(c)). Thus, we conclude that summary offenses charged in the same complaint as misdemeanors are part of a court case for the purposes of rule 1100. Cf. Comment to Pa.R. Crim.P. 51 and 101 (summary offense charged in same complaint as misdemeanor or felony “shall proceed as a court case under Chapter 100 [of the rules]”). Consequently, the lower court erred in failing to dismiss the summary offenses when it dismissed the misdemeanors on the basis of rule 1100.

Judgment of sentence reversed and appellant ordered discharged.

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

      . 18 Pa.C.S.A §§ 5104 (resisting arrest), and 5503 (disorderly conduct).

      . 75 Pa.C.S.A. §§ 1302 (operating a vehicle without a valid registration), and 1501 (operating a vehicle without a license).

      . We express no view on the propriety of the extension.

      . The Commonwealth argues that the summary offenses are “summary cases” beyond the scope of rule 1100. We disagree. Rule 3(p) states that a summary case “is a case in which the only offense or offenses charged are summary offenses.” (Emphasis added.) By joining the summary offenses in a written complaint charging two misdemeanors, the Commonwealth removed them from the realm of summary cases and the provisions of Pa.R.Crim.P. 51-67. Although we do not rest our decision upon this point, we note additionally that the Rules of Criminal Procedure contemplate that trials in summary cases will be held promptly. See, e. g., Pa.R.Crim.P. 54-55 (procedure in cases initiated by citation), 57 (procedure in cases initiated by summons), 60-62 (procedure in arrest cases). Cf. Pa.R.Crim.P. 6013 (120 day prompt trial rule in Municipal Court cases). See also Commonwealth v. Koch, 288 Pa.Super. 290, 295, 431 A.2d 1052, 1054 (1981) (summary violations warrant prompt disposition, and the rules of criminal procedure are geared toward that goal).


author: VAN der VOORT, Judge:

text:
    435 A.2d 1295
    E.L.G. ENTERPRISES CORP. and all Others Similarly Situated Within the Commonwealth of Pennsylvania, v. GULF OIL COMPANY. Appeal of E.L.G. ENTERPRISES CORP.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed Oct. 16, 1981.

      Neil E. Jokelson, Philadelphia, for appellant.
    Carole Dotson, Bala Cynwyd, for appellee.
    Before CERCONE, President Judge and WICKERSHAM and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is a dispute between E. L. G. ENTERPRISES CORP., appellant herein, which operates an automobile service station at which it sells Gulf gasoline, and GULF OIL CORPORATION, appellee, from whom the appellant buys its gasoline. Appellant sues for itself and all other retail gasoline dealers in Pennsylvania who sell Gulf gasoline.

Appellant seeks injunctive relief and damages based upon allegations that the appellee delivers to its retailers gasoline which is not temperature corrected to 60 °F., and that appellee refuses to adjust its billings to reflect the shrinkage of gasoline sold to it at higher temperatures. Appellant contends that such practice of selling “hot gasoline” constitutes a violation of the Weights and Measures Act of 1965, 73 P. 5. § 1651 et seq., and Regulations issued under it (70 Pa. Code § 21.1 et seq.); and specifically § 23.13(a)(2) of the Regulations, the relevant portion of which reads:

“(a) The declaration of the quantity of a particular commodity shall be expressed in terms of liquid measure if the commodity is liquid, ...”
(2) if in units of liquid measure, it shall be in terms of the United States gallon of 231 cubic inches of liquid quart, liquid pint, or fluid ounce subdivisions of the gallon, and shall express the volume of 68 °F. (20 °C), except in the case of petroleum products for which the declaration shall express the volume of 60 °F. (15.6 °C)

The appellee has filed Preliminary Objections to the appellant’s Complaint asserting that primary jurisdiction over the subject matter lies with the Attorney General under authority vested in him by the Weights and Measures Act. The lower Court dismissed the Complaint for want of jurisdiction and appellant has appealed the Order. We reverse.

The lower Court has based its order of dismissal on the reasoning that primary jurisdiction is vested in the Attorney General by the Weights and Measures Act of 1965 and that the lower Court cannot act upon the Complaint until complaint has been made to the Attorney General (73 P. S. § 1661) and he has had a chance to determine whether the practice complained of constitutes a violation of the statute or regulations issued thereunder. The rationale of the ruling is said to lie in the advisability of securing the expert judgment of the Attorney General and the Bureau of Weights and Standard Measures which he controls on any technical questions that may be involved in the issue raised by the Complaint.

The practice of deferring judicial action until an administrative agency has passed upon such aspects of a litigation as may lie within its competence is widely known as the doctrine of primary jurisdiction. It is a doctrine developed and widely used in our Federal Courts as a means of reconciling the functions of administrative agencies with the judicial functions of a Court. It has been particularly useful with those agencies that have broad administrative and quasi judicial authority, such as the Interstate Commerce Commission exercises over rates and the adjudication of charges of rate discrimination. This reconciliation between administrative agencies and the Courts is accomplished under this doctrine by staying judicial action until the agency has passed on those issues that are within its competence and collateral to issues before the Court. The historical development of this doctrine is annotated and reviewed at length in Mississippi Power and Light Company v. United Gas Pipe Line Company, 532 F.2d 412, 417-19 (5th Cir. 1976). In that case a public utility was suing a gas pipe line company for damages because of a short-fall in deliveries of gas, while the same utility and others were involved in proceedings before the Federal Power Commission to determine proper priorities in delivery and other relief.

The doctrine of primary jurisdiction is to be distinguished from judicial dismissal or an action for failure to exhaust administrative remedies. “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone, while the doctrine of primary jurisdiction is a discretionary concept under which a Court stays judicial action until the administrative body has expressed its views upon such collateral issues as are within its competence: United States v. Western Pacific R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 164-165, 1 L.Ed.2d 126 (1956).

In the exposition of the development of the doctrine in Mississippi Power and Light Co., supra, the Court concluded that the present state of the law is that a Court has discretion to seek the input of an administrative agency where the action or ruling of the Agency on issues collateral to the reserved judicial issues will be of assistance to the Court in making its ultimate decision. The advisability of staying judicial proceedings until the Agency has acted is greatest when the issue is already before the Agency. No fixed formula exists for applying the doctrine. A Court must always balance the benefits of seeking an agency’s aid with the need to resolve disputes fairly and expeditiously. However, Courts have cautioned that the doctrine should be applied with reluctance because of the added expense and delay to the litigants: 532 F.2d 412, at pp. 418-19.

Almost without exception, cases decided under the doctrine of primary jurisdiction and reviewed in Mississippi Power and Light Co., supra, while staying judicial action on the Complaint have retained jurisdiction rather than dismissing the action as was done by the Court below. Two compelling reasons, one philosophical and the other practical, favor postponement rather than dismissal. Philosophically, the concept of the doctrine of primary jurisdiction is that while judicial jurisdiction exists, its exercise would be aided if the administrative agency acted first. Practically, if the judicial Complaint is dismissed and the Complainant required to start a new proceeding after the administrative agency has acted, the Statute of Limitations may have intervened. In the case at hand, appellant claims injury from July, 1973, already two years beyond the statute.

The issue before us is whether the involvement of the Attorney General and the Bureau of Weights and Standard Measures would shed enough light on the technical aspects of this case to justify the delay and expense involved in staying judicial action while appellant pursues a Complaint to the Attorney General. No action of any sort is now pending before the Attorney General or the Bureau of Weights and Standard Measures on any aspect of the litigation before us.

An examination of the Weights and Measures Act of 1965 shows that it establishes a Bureau of Weights and Standard Measures under the direction of the Attorney General, with the objective of establishing a system of weights and measures in this Commonwealth which will “assure that the amount of a commodity is determined in accordance with good commercial practice”: 73 P. S. § 1671. The statute accepts as correct the system of weights and measures in customary use in the United States; and it adopts the definition of basic units of weight and measure equivalents as published by the National Bureau of Standards: 73 P. S. § 1653. The statute enacts guidelines for the determination of correct weights and measures for specific commodities, 73 P. S. §§ 1678-82, and is specifically applicable to commodities in liquid form: 73 P. S. § 1671(a). A regulation has been issued covering the measurement of petroleum products in liquid form: 70 Pa.Code 23.13(a)(2), supra.

The administration and enforcement of the Act is placed in the hands of the Attorney General, aided by a Bureau of Weights and Measures whose director, inspectors and technical and clerical personnel are appointed by him: 73 P. S. § 1656. The powers and duties of the Attorney General are delegated to a large extent to the director and inspectors of the Bureau when acting under the instructions of the Attorney General or at his direction: 73 P. S. § 1666. The Attorney General is vested with the authority to issue regulations for the administration and enforcement of the Act which have the force of law: 73 P. S. § 1658. He has broad powers to investigate complaints made to him concerning violations of the Act, as well as the authority to act on his own initiative to develop information on prevailing procedures used to determine commerce quantities: 73 P. S. § 1661.

If the Attorney General decides the statute has been violated, he has two remedies and two only: (1) he can sue for a civil injunction in any Court of competent jurisdiction: 73 P. S. § 1687 or (2) he can sue to impose criminal penalties: 73 P. S. § 1686. In short, his statutory mandate is to protect the public interest.

The Attorney General can pass no judgment on the merits of the private claim. While he can receive complaints from private individuals, all he can do with them is to bring a court action for criminal penalties or a civil injunction. The lower Court acknowledged this by the statement in its Opinion “that the remedies provided by the statute would not redress the injuries alleged by plaintiff”.

While the filing of a Complaint with the Attorney General might establish that he believed that the sale of “hot gasoline”, unadjusted in its measurement to a temperature of 60° F., was a violation of the Bureau’s Regulation § 23.13(a)(2), the director of the Bureau has already advised the appellant by letter that he considers that regulation to be controlling. He or the Attorney General could repeat the same advice officially in response to a complaint, but neither the Attorney General nor the Bureau has the authority to determine the extent of the appellant’s damage or to award any measure of relief. They can do no more than has already been done.

We find no justification for staying further proceedings in this case until the appellant has been given an opportunity to file a Complaint with the Attorney General, and the Attorney General has been given a chance to determine whether he should bring a civil or criminal action on behalf of the Commonwealth.

The appellee makes the further argument that the Complaint was correctly dismissed because regulations issued by the Federal Department of Energy would have prevented appellee from altering any of its normal business practices which would have an effect on pricing, citing 10 C.F.R. §§ 210.62 and 211.101. However, these regulations were rescinded on March 31, 1981, 46 Fed.Reg. pp. 20512 and 20519 as part of the deregulation of the pricing of petroleum products, so there is no longer any basis for the contention that the Department of Energy should exercise a primary jurisdiction. Whether these regulations would constitute a defense to appellant’s claim for damages incurred during the period that they were in effect can be determined when the case is heard on its merits.

Reversed, with directions to dismiss the Preliminary Objections and reinstate the Complaint.


author: LIPEZ, Judge:

text:
    435 A.2d 1298
    COMMONWEALTH of Pennsylvania, v. Joseph A. NUGENT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Oct. 16, 1981.

      David Weinstein, Philadelphia, for appellant.
    August T. Groover, Media, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

In a hearing before a district justice, appellant was convicted of driving a vehicle exceeding gross maximum weight. 75 Pa.C.S. § 4941(a). The district justice fined appellant $29,500 under the statutory formula. 75 Pa.C.S. § 4945(a). On de novo appeal to common pleas court, the trial judge stated at the conclusion of trial that he found appellant guilty and would dismiss the appeal. An order was entered stating: “Demur [sic] overruled. Appeal dismissed. Mr. Weinstein [defense counsel] to hand up Order for supersedeas. Mr. Groover [prosecutor] copying exhibits and will return originals.” This appeal from that order must be quashed, because there has been no entry of an appealable order.

In Commonwealth v. Myers, 457 Pa. 317, 319, 322 A.2d 131, 132 (1974), our Supreme Court, reiterated the long standing rule, stating: “It is unquestionably the law that a defendant may appeal only from a final judgment of sentence and an appeal from any prior order will be quashed as interlocutory.” The Court has since created certain exceptions, both by case law and rule, but no exception is applicable here.

It is apparent from the opinion of the trial judge that he believed the effect of his “dismissal” of the appeal was to “affirm” the sentence imposed by the district justice, leaving it intact. However, although statutes refer to the hearing which took place in the common pleas court below as an “appeal,” 42 Pa.C.S. § 932, it is not like an ordinary appeal to an appellate court. When a new matter previously determined by a district justice or magistrate is heard in common pleas court under statutes such as 42 Pa.C.S. § 932 and its predecessors, the criminal charge or civil cause of action remains the same, but all proceedings on the charge or cause of action are de novo. E. g., Commonwealth v. Congdon, 74 Pa.Super. 286, 288-89 (1920); cf. Reitze v. Meadville & Linesville Railway Co., 126 Pa. 437, 440, 17 A. 663 (1889); see generally 2 W. Sadler, Criminal Procedure in Pennsylvania, § 856 (2d [G. Henry] ed. 1937). The “appeal” to common pleas court is actually a retrial of the case as if the prior summary proceeding had not occurred. Commonwealth v. Koch, 288 Pa.Super. 290, 293 & n. 3, 431 A.2d 1052, 1054 & n. 3 (1981).

As this court stated in Commonwealth v. Brann, 78 Pa.Super. 345, 348 (1922): “It was not the function of the court to affirm or reverse the magistrate. It was the duty of the court to try the case de novo, to hear the evidence and the arguments of counsel, and thereupon to enter such judgment as would be warranted under the law and the evidence.” The case before us is not quite the same as Brann and similar cases, in which this court reversed and remanded for a de novo hearing in common pleas court, because that court had simply entered an order sustaining or dismissing the appeal from the magistrate. Here the court below did conduct a de novo hearing and make a new determination of guilt, but failed only to take two remaining steps. First, the court should have informed appellant that he had the right to file post-verdict motions within ten days, and that any issues not raised in those motions would be waived on appeal. Pa.R.Crim.P. 1123(c). Second, if the motions were denied, or if motions were neither filed nor made orally under Rule 1123(b), the court should then have proceeded to make its own determination of the appropriate sentence, and entered that judgment of sentence on its docket.

Only the second step, entry of the judgment of sentence, is essential to appealability. As we stated in Commonwealth v. Tilman, 273 Pa.Super. 416, 418 n.4, 417 A.2d 717, 718 n.4 (1980): “Appellant should not have been sentenced until after post-verdict motions. Comments, Pa.R.Crim.P. 1123, 1405; Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1975). While procedurally incorrect, however, this sentence was a final order reduced to judgment, and therefore appealable. Pa.R.A.P. 301(a).” While the lack of post-verdict motions is not fatal to the appeal before us, the lack of an appealable order is. The appeal must therefore be quashed.

Appeal quashed.

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

      . We have noted with increasing concern the large number of appeals in recent years which this court has been required to quash because of lack of finality in the decision under appeal. This is especially surprising because the rule is of common law origin, based on a “well settled rule of English practice” under which “no writ of error could be brought except on final judgment,” McLish v. Roff, 141 U.S. 661, 665, 12 S.Ct. 118, 119, 35 L.Ed. 893 (1891), and long perpetuated in the appellate practice in this Commonwealth. See, e. g., 42 Pa.C.S. §§ 722, 742, 762 and predecessor statutes; cf. Comment, Appealability and Finality in the Third Circuit—Is the United States Supreme Court More Appealing Than the Third Circuit?, 25 Vill.L.Rev. 884 (1980).

      . Accord, Commonwealth v. Sites, 430 Pa. 115, 117, 242 A.2d 220, 221 (1968); Commonwealth v. Pollick, 420 Pa. 61, 62-63, 215 A.2d 904, 905 (1966); Commonwealth v. Wright, 383 Pa. 532, 535, 119 A.2d 492, 493 (1956), rehearing den’d; see also Commonwealth v. Laudenslager, 260 Pa.Super. 395, 398, 394 A.2d 985, 987 (1978).

      . Case law, for example, has made appealable a pretrial order refusing to bar retrial on double jeopardy grounds. See Commonwealth v. Haefner, 473 Pa. 154, 156 & n. 3, 373 A.2d 1094, 1095 & n. 3 (1977). New rules for appellate review of such orders have been proposed in Recommendation No. 14 of the Advisory Committee on Appellate Rules. 11 Pa.Bull. 1441-42 (1981).
      An example of an exception by rule is Pennsylvania Rule of Appellate Procedure 311(a)(5), substantially reenacting former Rule 311(b), effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978). See Commonwealth v. Liddick, 471 Pa. 523, 527, n. 2, 370 A.2d 729, 731, n. 2(1977); see also Commonwealth v. Laudenslager, supra, note 2.

      . Common pleas court, to which the “appeal” is taken under 42 Pa.C.S. § 932, is not an “appellate court,” as defined in 42 Pa.C.S. § 102.

      . Older cases refer to members of the minor judiciary as magistrates, justices of the peace, and other terms used in various statutes in the history of the Commonwealth. “District justice” is now the only technically correct term, under section 3(d) of the Judiciary Act Repealer Act (JARA), which provides:
      An express reference in any statute or other law to a justice of the peace or to the office of justice of the peace shall hereafter be deemed a reference to a district justice or to the office of district justice. Any person appointed or elected to judicial office in a magisterial district shall be known as and hereafter shall be commissioned as the “district justice” in and for the appropriate district.
      Act of April 28, 1978, P.L. 202, No. 53, § 3(d), 42 P.S. § 20003(d).

      . See Commonwealth v. Lodge No. 148 Loyal Order of Moose, 188 Pa.Super. 531, 539 n.5, 149 A.2d 565, 570 n.5 (1959) (collecting cases).

      . Effective July 1, 1981, our Supreme Court made several amendments to the Comment to Pennsylvania Rule of Criminal Procedure 1123, including the addition of the following at the end: “This rule is intended to require post-verdict motions in the court of common pleas at a de novo trial in a summary case.” 11 Pa.Bull. 1643, 1645 (1981). Since no amendment to the text of the rule was made when the Comment was amended, the apparent purpose of amending the Comment was to make it clear that the Rule 1123 procedure had always been intended to apply to de novo trial of summary cases in the courts of common pleas. The day after the effective date of the Comment amendment, this court en banc held that Rule 1123 applies in summary cases, but did not hold the issues waived on that basis because of the trial court’s failure to inform the defendant, in accordance with Rule 1123(c), of the need to raise issues in post-verdict motions to preserve them for appeal. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

      . While the distinction is not critical here, it should be noted that this second step is itself a two-step process, involving not merely imposition of sentence, but also entry on the docket. “Entry of judgment is a prerequisite to our exercise of jurisdiction.” Slaseman v. Myers, 285 Pa.Super. 167, 168, 427 A.2d 165, 166 (1981), rearg. den’d; see Pa.R.A.P. 301(a); see also Commonwealth v. Molyneaux, 277 Pa.Super. 264, 265-66, 419 A.2d 763, 764 (1980); Commonwealth v. Gottshalk, 276 Pa.Super. 102, 103-04, 419 A.2d 115, 116 (1980); Commonwealth v. Dorman, 272 Pa.Super. 149, 152-53 & 155-56, 414 A.2d 713, 715 & 717 (1979); In re Gorham, 272 Pa.Super. 145, 148, 414 A.2d 712, 713 (1979); but see Recommendation No. 11 of the Advisory Committee on Appellate Court Rules, proposed amendment to Pennsylvania Rule of Appellate Procedure 905 (adding, in pertinent part, the following: “A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”), 10 Pa.Bull. 2865 (1980). In the case before us, there was not just a failure to enter sentence, but a failure to impose sentence in the first place.

      . The Comment to Pennsylvania Rule of Criminal Procedure 1123 (as amended, effective July 1, 1981, 11 Pa.Bull. 1643, 1645 (1981), begins:
      Post-verdict motions must be decided before sentencing, because the appeal lies from the final order of the trial court, which ordinarily includes sentence. See Judicial Code, 42 Pa.C.S. §§ 722, 742, 5105(a). See also Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
      Other than the Judicial Code references replacing the Appellate Court Jurisdiction Act sections which they superseded, the only changes in that portion of the Comment were addition of the word “ordinarily” and citation to Bolden to recognize exceptions like those mentioned at note 3, supra. The effect of Bolden is discussed in Commonwealth v. Haefner, supra, note 3.

      . Since the court below did not enter a final judgment of sentence, there is no question here of whether issues not raised in post-verdict motions are waived on appeal when the lower court enters final judgment immediately after the verdict. This question was also avoided in Commonwealth v. Tilman, 273 Pa.Super. 416, 418, 417 A.2d 717, 718 (1980), because there, even though judgment of sentence was entered immediately after the verdict, the defendant timely filed both post-verdict motions and an appeal from the judgment of sentence.

      . We note that the Advisory Committee on Appellate Court Rules has in its Recommendation No. 15 promulgated a proposed Rule of Appellate Procedure 1971 (Automatic Remand of Nonappealable Matters) which, if adopted, would require a different disposition. The text of proposed Rule 1971 is:
      (a) General rule. If a timely appeal is improvidently taken from an order, this alone shall not be a ground for dismissal, but the matter shall be remanded to the trial court for further proceedings under this rule.
      (b) Fresh order. If the time for seeking a relief in the trial court from the improvidently appealed order has expired, the court following remand under Subdivision (a) of this rule shall enter a fresh order and shall permit any party to raise any objection to the order which might have been asserted against the order as originally entered.
      (c) Abuse of process. An appellate court upon its own motion or upon application may, by order, direct that a fresh order shall not be entered in the trial court under this rule, or that the trial court in its discretion may decline to enter a fresh order, if, in either event, it appears that the improvident appeal was an abuse of the process of the court.
      11 Pa.Bull. 1442 (1981). The commentary accompanying the proposal states, “The Committee has made no decision that such a rule is necessary, and recognizes that there may be undesirable consequences to the introduction of the proposed procedure which could minimize or possibly outweigh its intended benefits.” Id. It would appear that the rule is unnecessary in this case, because the court below must allow appellant to file post-verdict motions out of time, since he was not informed of his rights under Rule 1123(c) at the time of the verdict. Commonwealth v. Marrero, 478 Pa. 97, 101, 385 A.2d 1331, 1334 (1978); Commonwealth v. Koch, supra, note 7.