author: CIRILLO, President Judge: ROWLEY, Judge,

text:
    529 A.2d 504
    Louis C. BOSCIA, II and Robin Boscia, His Wife v. Joseph A. MASSARO, Jr., and Carolyn Massaro, His Wife: Oliver Realty, Inc., a Corporation and Schindler-Haughton Elevator Company, a Corporation. Appeal of SCHINDLER-HAUGHTON ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed July 27, 1987.

      S. Asher Winikoff, Pittsburgh, for appellant.
    James A. Ashton, Pittsburgh, for Boscia, appellees.

      Before CIRILLO, P.J., and ROWLEY, and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal challenging the grant of a new trial by the Court of Common Pleas of Allegheny County. We affirm.

On June 21, 1982, appellee Louis Boscia, was employed as an Investment Certificate Supervisor by the Signal Finance Corporation. He worked out of a newly constructed building owned by Joseph and Carolyn Massaro and managed by Oliver Realty Inc. The building was serviced by two hydraulic elevators which had been manufactured, sold and installed by appellant, Schindler-Haughton Elevator Company.

At trial, Mr. Boscia alleged that at 6:30 a.m. on that day, he entered the building and pressed the button to call an elevator. The elevator door opened and Mr. Boscia stepped forward expecting to enter the elevator car. Instead, he plunged into the elevator shaft, falling about four feet and striking his head and back on machinery in the elevator pit. Mr. Boscia suffered serious personal injuries as a result of his fall. He brought an action alleging strict liability and negligence, claiming that the elevator car had been stuck between floors at a higher level. The Massaros and Oliver Realty were removed from the case by joint tort-feasor release agreements and the case proceeded solely against appellant Schindler-Haughton Elevator Company. On February 5, 1985, after a three week trial, the jury entered a verdict for Schindler-Haughton. On February 12th, appel-lee filed post-trial motions alleging numerous instances of prejudice and requesting a new trial. Appellee complained that appellants improperly introduced evidence relating to Mr. Boscia’s receipt of Workmen’s Compensation benefits. Appellee later filed additional post-trial motions on July 30, 1985. The trial court considered these motions even though they were filed well beyond the ten day period mandated by Rule 227.1. See Pa.R.C.P. 227.1. In its opinion granting appellee a new trial, the trial court cited various prejudicial questions and remarks heard by the jury. However, the learned judge stated that he would have granted a new trial solely because the jury heard testimony concerning Boscia’s Workmen’s Compensation payments.

Appellant presents six issues for our review: (1) whether the trial court erred in granting a new trial for harmless error; (2) whether the court erred in considering issues not preserved through timely post-trial motions; (3) whether the court erred by considering issues which were not properly preserved at trial; (4) whether the court erred in ruling that certain questions presented to witnesses were improper; (5) whether any error was cured by the court’s jury charge; and (6) whether the court abused its discretion by awarding a new trial. Based on the following discussion, we find it unnecessary to address each of these issues separately. We agree with the trial court that the interjection of Workmen’s Compensation into evidence was sufficient reason to grant a new trial and we uphold the court’s decision on that basis alone.

A trial judge may grant a new trial if he finds that improperly admitted evidence or improper statements made by counsel may have prejudiced the jury. Hilbert v. Katz, 309 Pa.Super. 466, 470, 455 A.2d 704, 706 (1983). An appellate court may only reverse in such a case if the trial judge is guilty of a gross abuse of discretion. Harvey v. Hassinger, 315 Pa.Super. 97, 106, 461 A.2d 814, 819 (1983).

In Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985), our Supreme Court explained the process by which an appellate court must determine this issue. Id., 507 Pa. at 599, 493 A.2d at 673. As Justice McDermott stated:

In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail. It is not the place of an appellate court to invade the trial judge’s discretion any more than a trial judge may invade the province of a jury, unless both or either have palpably abused their function.

Id., 507 Pa. at 599-600, 493 A.2d at 673.

In the instant case, the trial judge stated that: “[t]he injection of Workmen’s Compensation into the case was itself sufficiently damaging to warrant relief.” We agree.

In Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962), a truckdriver employed by United Parcel Service was injured in a collision with another truck. He brought suit for alleged negligence and at trial evidence was introduced concerning his receipt of Workmen’s Compensation. The jury returned a verdict for the defendants and plaintiff appealed. Our Supreme Court reversed, holding that the introduction of evidence concerning Workmen’s Compensation required that a new trial be granted. The court stated that such evidence has traditionally been inadmissible because it may cause the jury to believe that a plaintiff is seeking double payment for one injury. Id., 409 Pa. at 20, 185 A.2d at 560-61.

In the instant case, appellant’s counsel continuously attempted to bring Mr. Boscia’s receipt of Workmen’s Compensation before the jury. Appellant twice mentioned the subject by implication. These passing references were probably unnoticed by the jury and were unobjected to. The next instance was hardly so innocent. In cross-examining Mr. Boscia’s employer, James Shearer, counsel asked whether Shearer was cooperating with Boscia “because your company has a Workmen’s Compensation lien that they can collect in this case.” Appellee objected to counsel’s line of questioning and the court ruled the queries stricken from the record. Even so, during recross examination of Dr. Donna Knupp, appellee’s family physician, appellant’s counsel asked: “You are aware, are you not, that all of these future costs will be paid by his Workmen’s Compensation carrier?”

Again, Mr. Boscia’s counsel vigorously objected. In his excellent opinion, the learned trial judge concluded that such remarks were so inherently prejudicial that a new trial was warranted. Applying the standard enunciated in Thompson we must uphold this determination.

As demonstrated above, the record shows that evidence of Workmen’s Compensation was clearly but improperly placed before the jury. As discussed in Lobalzo, such evidence is prejudicial because a jury may conclude that a litigant is seeking double redress for one injury. See Lobalzo, 409 Pa. at 20, 185 A.2d at 560-61. Therefore, the trial judge’s reasons for granting a new trial are supported by the record and we find no “palpable abuse of discretion.” Thompson, 507 Pa. at 600, 493 A.2d at 673.

We note that this issue was preserved for post-trial review as required by Rule 227.1 of the Pennsylvania Rules of Civil Procedure. Counsel objected to introduction of the evidence at trial and also raised the issue in a timely post-trial motion filed seven days after the jury returned its verdict. Appellant argues that Mr. Boscia waived his right to object on this issue because his counsel failed to protest the earlier comments on the subject. Even assuming, arguendo, that such earlier comments actually introduced the issue, we must still reject appellant’s contention. “[T]he fact that incompetent, irrelevant and immaterial evidence may be introduced at trial by one party, without objection from the other party, because he may deem it of no importance and harmless, does not prevent the latter from objecting to the further introduction and elaboration of such evidence when he is of the opinion that it is both important and harmful.” Bobereski, Adm. v. Ins. Co. of Pa., 105 Pa.Super. 585, 161 A. 412 (1932). See Standard Pa. Practice 2d § 56:5 (effect of failure to object). In the instant case, counsel properly objected when he believed that the improper evidence had become important and harmful.

Appellant claims that this objection was sustained and that the appellees requested no further relief such as a cautionary instruction. Appellant cites Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981) as authority for the proposition that post-trial relief is unavailable on the basis of a sustained objection for which no further relief was sought at trial. See id., 493 Pa. at 373, 426 A.2d at 597. Appellant has correctly paraphrased the Tagnani court’s holding, but such holding has no relevancy to the instant case. Mr. Boscia’s counsel did object to the question asked of Dr. Knupp. However, the trial court did not sustain this objection. The court stated that it would reserve its ruling on the issue but appellant has not referred us to any portion of the record which indicates that such ruling was ever made. Therefore, the above-cited aspect of Tagnani is simply inapplicable to this case.

It is the generally accepted practice that when a court admits evidence subject to an objection, thereby reserving its ruling on that objection, the objecting party must later request a ruling or the issue will be deemed waived. See Standard Pa. Practice 2d § 56:7.

To comply with this rule, the plaintiff-appellee should have requested a ruling on his objection before allowing the case to go to the jury. Because appellee failed to make such a request, he might not have been entitled to a new trial based on the grounds asserted in the objection. But, appellant has not raised this issue on appeal. He has discussed only the need for appellee to request a cautionary instruction before requesting a new trial based on an issue raised in an objection which the court sustained. As discussed above, this is a mischaracterization of the facts. The objection in question was not sustained. Appellant has not discussed a party’s obligation when evidence is admitted “subject to objection.” We will not adjudicate issues which the parties have not presented for our review. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980).

We also note that the above-cited rule is not universally followed. See cases collected, Anno. 88 A.L.R.2d 12 §§ 7, 12,18,19 (1986). In Moreau v. Penna. R. Co., 166 F.2d 543 (3d Cir.1948), the Third Circuit adopted the minority position. The plaintiff in Moreau objected to the trial court’s instruction on the issue of contributory negligence. The court failed to rule on the objection and the plaintiff failed to re-assert it. The Court of Appeals allowed the plaintiff to raise the issue on appeal, holding that the original, unruled upon objection preserved the issue. Id. There is no Pennsylvania case directly on point. It would be inappropriate for us to determine an issue of first impression which has not been raised and briefed by the parties.

Appellant also claims that whatever improper evidence may have been admitted was cured by the court’s charge to the jury. Though an appropriate charge may correct harmful error, improperly admitted evidence may be so prejudicial that a new trial is required. Trump v. Capek, 267 Pa.Super. 355, 358, 406 A.2d 1079, 1081 (1979). In Trump, evidence that an injured plaintiff had already received government payments related to his injury was improperly introduced. We held that this evidence was so prejudicial that the trial judge’s instruction to the jury to disregard it failed to adequately protect the plaintiff’s rights. Id. We held that where the inadmissible evidence is pertinent to a substantial portion of the case and a reviewing court is unable to determine the effect of the evidence upon the jury, a cautionary instruction may not cure the error. Id., 267 Pa.Superior Ct. at 358-59, 406 A.2d at 1081. In the case before us, the jury might have reasonably believed that Mr. Boscia had already been fully compensated for his injuries. This belief might have led them to resolve any doubts concerning liability in appellant’s favor. Therefore, the court’s charge may not have corrected the error and the prejudicial nature of the evidence mandates that we approve the grant of a new trial.

However, we recognize that a jury’s verdict should not be casually overturned. In our system of justice, the jury is sacrosanct and its importance is unquestioned. The members of a jury see and hear the witnesses as they testify. They watch them as they sweat, stutter, or swagger under the pressure of cross-examination. This enables the jury to develop a feel for the case and its personal dynamics which cannot be conveyed by the cold printed page of a record reproduced for appellate review. But, the trust our system places in the jury’s wisdom is not unchecked. The rules of evidence have been arduously developed over hundreds of years in order to provide such a check. These rules prevent jurors from considering facts which might inflame their prejudices but which are irrelevant to the actual case before them. A skillful and zealous advocate is often able to sidestep the technical letter of the rules and enter some evidence which should have been excluded. When such maneuvering threatens the overall fairness of the proceeding, the trial judge should order a new trial. We must afford the judge great discretion in making this decision because he too is present in the courtroom as the evidence is presented. As does the jury, he develops a feel for the human pulse of the case. In short, our seemingly simple decision to uphold the grant of a new trial is actually the end result of a highly complex process involving the interaction of judge, jury, and attorneys. This process has developed- over centuries and its complicated dynamics belie its surface simplicity. However, the greatest tribute to its success is probably the extent to which we take it for granted as the ultimate guarantor of justice.

Judgment granting a new trial is affirmed.

ROWLEY, J. files a concurring statement.

POPOVICH, J. concurs in result.

ROWLEY, Judge,

concurring:

I agree with the result reached by the majority that the order granting a new trial should be affirmed. My review of the record, including the trial court’s opinion and consideration of those issues properly preserved for appellate review, fails to disclose any abuse of discretion by the trial court. Therefore, I would affirm.

      . We wish to emphasize that our decision should not be construed as either approval or disapproval of the trial court’s consideration of post-trial motions which were not filed within the ten-day period required under Rule 227.1.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    529 A.2d 508
    Christopher DeWALT v. Duane DeWALT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed July 29, 1987.

      Thomas C. Panian, Robert Clarke, Washington, for appellant.
    Clayton G. Nestler, Washington, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Washington County attaching the wages of appellant, Duane DeWalt.

Christopher DeWalt filed suit against his father, Duane DeWalt, for child support. The trial court ordered the father to pay $100 per month and attached his wages for that purpose. He then appealed to this court.

The court order which attached DeWalt’s wages is dated October 6, 1986. It was entered on the docket that same day but DeWalt did not file a notice of appeal until November 6, thirty-one days after entry of the order. Pa.R.A.P. 903 provides that an appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Rule 108(b) defines the date of entry of an order in a matter of this kind as “the day on which the clerk makes the notation in the docket that notice of entry of the order has been given. . . .” See Lyday v. Lyday, 360 Pa.Super. 16, 19, 519 A.2d 967, 969 (1986) (court held that the thirty-day appeal period begins to run when notice of the court’s order is mailed to the parties). In this case, notice of the October 6th order was mailed on October 14. Therefore, the appeal of November 6 was within thirty days and was proper.

Appellant presents three issues for our review: (1) whether the support order imposes an undue hardship upon him; (2) whether the order is based upon erroneous information; and (3) whether the case must be remanded for clarification of the trial court’s order.

On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. Kopp v. Turley, 359 Pa.Super. 106, 109, 518 A.2d 588, 590 (1986). An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment. Id., 359 Pa.Superior Ct. at 109, 518 A.2d at 590.

The legal standard which controls a parent’s obligation to pay child support varies based upon the child’s age. A parent has a stringent obligation to support a child aged 18 or less. Sutliff v. Sutliff, 339 Pa.Super. 523, 547, 489 A.2d 764, 776 (1985). Child support is the shared responsibility of each parent. Leonard v. Leonard for and on Behalf of Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986). This does not mean that each parent must pay an equal amount. They must discharge their obligation in accordance with their individual capacity and ability. Id., 353 Pa.Superior Ct. at 609, 510 A.2d at 829.

In order to calculate the support obligation of each parent, the court must first determine the reasonable needs of the children. Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986). Reasonable expenses are not limited to the bare necessities. A child is entitled to a reasonable standard of living based upon the social station, fortune and financial achievements of their parents. Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984).

The court must next determine the respective abilities of the parents to support their children. To arrive at this amount, the court must make an allowance for the reasonable living expenses of each parent. The court must then calculate the parent’s net income or earning capacity if that figure differs from actual income. Lyday at 21, 519 A.2d at 970. The trial court must consider every aspect of a parent’s financial ability to pay support. The actual and potential cash flow from his property interests, financial resources, stock holdings and other investments should all be considered. Id.

In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a plurality of our Supreme Court, per Justice Larsen, established guidelines for the calculation of child support awards. Id., 505 Pa. at 472-75, 480 A.2d at 996. Justice Larsen’s formula provides:

A = amount available to parent A;
B = amount available to parent B
A total support -X support needs A ■ I i obligation of A B total support -X support needs = A + B obligation of B in kind contribution in kind contribution actual support obligation of A actual support obligation of B

However, a majority of the Court eschewed strict mechanical formulas and endorsed a flexible approach in these cases. Id., 505 Pa. at 477-78, 480 A.2d at 999 (Flaherty and Hutchinson, JJ. concurring).

A majority of the Court did agree that each parent’s support obligation should be determined based upon the reasonable needs of the children and the parent’s reasonable expenses and earning capacities. The members of the Court differed over whether these criteria should be applied via a mathematical formula or whether we should trust in the judgment and discretion of our trial courts.

In interpreting Melzer, the Superior Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majority’s admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. Deluca, 353 Pa.Super. 622, 625, 510 A.2d 1239, 1241 (1986); Reitmayer v. Reitmayer, 355 Pa.Super. 318, 324, 513 A.2d 448, 452 (1986).

A parent’s duty to support his minor child is nearly absolute and the amount of time spent together has no bearing on the obligation. Even a parent who never sees his children has a duty to support them. Melzer, 505 Pa. at 472, 480 A.2d at 996. Though the parent-child relationship is the basis of this duty, a parent may not be released from this obligation by the actions of the child. A minor child cannot waive his right to support. This is so even if he renounces the parent and refuses to see him. See Schmidt v. Schmidt, 313 Pa.Super. 83, 87, 459 A.2d 421, 423 (1983); See also 59 Am.Jur.2d Parent and Child § 67 (1971).

This obligation is unaffected by the independent resources of the child. As long as a parent is able to support his minor child, the child should not be forced to use his own funds to support himself. Sutliff, 339 Pa.Super. at 538, 489 A.2d at 771.

A parent’s obligation to support a child over the age of eighteen is a more complicated matter.

As this court has stated:

[T]he presumption is when a child reaches majority the duty of the parent to support that child ends. Once the presumption arises, it is then incumbent upon the child to rebut the presumption. The duty to support the adult child continues where the child is physically or mentally feeble or otherwise unemployable. The adult child, however, has the burden of proving the conditions that make it impossible for her or him to be employed.

Verna v. Verna, 288 Pa.Super. 511, 515, 432 A.2d 630, 632 (1981) (citations omitted).

Because this duty is based upon the child’s inability to be self-supporting, the court may consider the child’s income in fashioning its award. The parent is only called upon to aid the child if he cannot aid himself. To the extent that he can aid himself, the parental contribution is unnecessary. The “reasonable needs” of a disabled adult child are those needs which he is unable to meet through his own efforts.

This obligation to support a child who is mentally or physically defective is not diminished even if the child refuses to see the parent. Schmidt, 313 Pa.Super. at 87, 459 A.2d at 423. The attainment of majority does not destroy the natural relationship between a parent and a child. If the child refuses to see the parent, that relationship may exist only in name. Even so, society will not allow a parent to turn his back on the child. Society will not step in and care for the child if the parent is capable of providing support. The parent’s legal obligation arises from his moral responsibility to care for the child whom he brought into the world. This responsibility may be unpleasant if the disabled child is ungrateful. However, a parent’s interest in avoiding this distasteful and bitter reproach is outweighed by the societal interest in preventing such children from becoming a public burden.

Still another situation is that of the adult child who wishes to pursue a post-high school education. In Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981), the court wrote:

It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchison v. Hutchison, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).

Id., 291 Pa.Superior Ct. at 24-25, 435 A.2d at 200-01.

The child in question must also possess the aptitude and the desire to successfully complete the course of studies he has chosen to pursue. Kopp at 110, 518 A.2d at 590.

Unlike the above-described situation concerning a disabled child, this responsibility is not based upon the child’s inability to support himself. However, we recognize that many children contribute to the cost of their own education. Therefore, trial courts may consider an adult child’s current earnings when determining the parent’s support obligation for post-high school education expenses. A court should fashion its award based upon the contributions made by children of parents with similar financial resources. A child’s college years should not be destroyed by slavish labor because his parents have chosen to divorce. On the other hand, a parent should not be required to devote every waking moment to the pursuit of monetary gain so a child may spend his summers employed only in the pursuit of a perfect tan.

Unlike the disabled child, an adult child in college may forfeit his right to support by renouncing the parent-child relationship. As noted, this relationship is the source of a parent’s support obligation. A minor child is incapable of effective renunciation because of his age. A disabled child is incapable of effective renunciation because of the societal interest in preventing dependance upon the public weal. Neither of these considerations apply to an adult child in college. He is mature enough to be held responsible for his actions. He is not disabled so it is unlikely that he will become a public dependant. Therefore, we see no reason why a child should be entitled to shun a parent’s love and company but at the same time be allowed to greedily reach into their wallet. The law should not sanction such a cold-hearted result. See Cohen v. Schnepf 94 A.D.2d 783, 463 N.Y.S.2d 29 (1983); Barbara M. v. Harry M., 117 Misc.2d 142, 458 N.Y.S.2d 136 (1982). A parent who has been cast aside by his child suffers the worst pain and heartache imaginable to man. If a child has no need for a parent and banishes him from his life, he in turn may be banished from the parent’s checkbook. However, nothing of this kind occurred in the instant case.

At trial, evidence was presented that the father earns $25,000 to $27,000 per year. Of his monthly expenses, approximately $100 per month goes to pay for a vacation home. The child earned approximately $700 to $800 during his summer vacation. Based on the foregoing, we do not believe the trial court abused its discretion in ordering the appellant to pay $100 per month for his child’s college expenses.

One hundred dollars per month is hardly a princely sum. We do not wish to suggest that appellant should give up the luxury of paying for a vacation home. However, we note that a child does not ask to be brought into this world. That choice is made by parents such as appellant. A child is usually born of the best of intentions as a result of a romantic glow which colors the world with a rose tint. But for some persons, as the years pass, the world slowly turns grey and the child becomes an irritant or a burden from whom they would like to break free. However, our courts will not allow parental duties to be so casually cast asunder. Becoming a parent is a decision which carries with it great responsibilities, not all of them pleasant. The importance of a college degree is continually increasing in our fast-paced, complex, modern society. Forcing a parent to choose his child’s education over his own vacation home is hardly tantamount to the imposition of an odious burden. The trial court acted within its discretion.

Appellant claims that his son presented erroneous information to a state agency when he applied for college aid. We are not persuaded of the truth of this allegation. However, even if true, this claim is of no import to the case before us. Incorrect information which was provided to the state does not affect the validity of a court order which was not issued in reliance on that information.

Lastly, appellant argues that this case should be remanded for clarification of the trial court’s order. That order directs appellant to pay $100 per month towards his son’s college education. The order is open-ended and will not lapse even after Christopher turns twenty-three. This is improper.

In Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), we stated that a parent’s obligation to pay his child’s college expenses may not be extended past the child’s twenty-third birthday except in unusual cases. Id., 327 Pa.Superior Ct. at 55, 474 A.2d at 1170. This is not an arbitrary number plucked indiscriminately from the judicial hat. It is consonant with the policies underlying this parental obligation.

The duty to pay for a child’s college education in certain circumstances results from a balancing of competing policies. The disadvantages forced upon children by their parents’ divorce should be minimized. Parents who would have supported their child’s education if they had not divorced, should not be encouraged to further victimize a child by leaving him without a college degree. However, this parental obligation is not limitless and does not extend into perpetuity. As discussed above, it is dependent upon a showing by the child that he is interested in pursuing his education. Id., 327 Pa.Superior Ct. at 55-56, 474 A.2d at 1170.

By the age of twenty-three, a young adult will usually have had at least four years to complete his college education. If he has shown the requisite interest, he should have his degree in hand. If he has not demonstrated this commitment and has failed to take advantage of the opportunity given him, he has waived any right to complain about a lack of parental interest. As an adult, he must be prepared to accept at least this much responsibility. Of course, exceptional cases will arise where the circumstances are such that this rule should not be inflexibly applied. A child may be unable to complete his education in four years because his parent refused to pay support. If a support order is finally entered, it would hardly be fair to terminate the obligation before the child has received four full years of parental aid. A contrary result would reward the parent for his own intransigence. Likewise, a child may have been ill and unable to complete his course work in the usual time frame. Certainly, the law will not compound his suffering by refusing to consider these extenuating circumstances when determining the parental support obligation. But, this is not such an exceptional case.

Christopher will turn twenty-three in March of 1988. At that time, his father’s support obligation must lapse. Because the trial court’s order is open-ended it must be modified so that it is in accord with the applicable law.

Based on the foregoing, the order of the Court of Common Pleas of Washington County is hereby modified so that Duane DeWalt’s support obligation ends in March of 1988.

MONTEMURO, J., concurs in result.


author:
ROWLEY, Judge:
      CERCONE, Judge,

text:
    529 A.2d 514
    In the Interest of J.E.S. and C.S., Minors. Appeal of J.S., Jr.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1987.
    Filed Aug. 3, 1987.

      David C. Raker, Williamsport, for appellant.
    Ann S. Pepperman, Williamsport, for J.E.S. and C.S., appellees.
    Charles F. Greevy, III, Williamsport, for Children & Youth Services of Lycoming County, appellee.
    Before ROWLEY, OLSZEWSKI and CERCONE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order involuntarily terminating the parental rights of appellant to his two children, J.R.S. and C.S. On appeal, appellant argues that there was insufficient evidence to support the court’s order and that the court erred by admitting hearsay evidence which was a substantial basis of the court’s decision. We affirm.

Our scope of review of an order involuntarily terminating parental rights is limited to a determination of whether the decree is supported by competant evidence. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). Where the trial court reaches its decision on alternative grounds, one of which is appropriate and supported by the record, we should not reverse even though the alternative ground may not be supported by the record. In re Cope’s Estate, 351 Pa. 514, 41 A.2d 617 (1945) (“as the other contention of the trustee was adopted as an alternative basis of the court’s opinion, this Court need not reverse the decree if the alternative ground will sustain it.” Id., 351 Pa. at 518, 41 A.2d at 619).

In this case, the trial court found that alternative statutory grounds for the involuntary termination existed: 1) the appellant had failed to perform his parental responsibilities for a period of at least six months [23 Pa.C.S. § 2511(a)(1)]; and 2) his failure to perform parental duties either could not or would not be remedied [23 Pa.C.S. § 2511(a)(2) and (5)]. The issue raised by appellant concerning the hearsay evidence relates solely to evidence tending to establish the grounds for involuntary termination under 23 Pa.C.S. § 2511(a)(2) and (5). Because we find that the evidence was sufficient to support the trial court’s alternative finding that appellant failed to perform his parental responsibilities for a period of at least six months, we find it unnecessary to address the issue concerning inadmissible hearsay evidence.

The facts relevant to the court’s determination that appellant failed to perform his parental responsibilities for a period of at least six months are as follows. Several years after Children and Youth Services of Lycoming County became involved with appellant and his family, appellant was incarcerated on a sentence of 372 to 10 years imprisonment following his conviction for sexual abuse of a stepdaughter not involved in the instant case. At the time of the hearings in this matter, appellant had been in jail for approximately 18 months. During that period he had sent the two children involved herein a total of no more than four letters. He did not send them any cards or gifts, he did not contribute to their support, he did not call them on the telephone, and he contacted Children and Youth Services only once concerning his children shortly after he went into jail. In short, appellant exhibited no real interest in and concern for the welfare of his children. Based on this evidence, the trial court concluded that appellant had failed for a period of at least six months to perform his parental responsibilities and thus the requirements of 23 Pa.C.S. § 2511(a)(1) for involuntary termination of parental rights were satisfied.

Although the law is clear that the failure to support a child due to incarceration is not conclusive of the issue of whether the parent has abandoned the child, In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975), nevertheless, the parent’s responsibilities are not tolled during the period of his or her incarceration. In re Adoption of Sabrina, 325 Pa.Super. 17, 472 A.2d 624 (1984). The inquiry must focus on whether the parent has utilized the resources available to him or her while in prison to continue a close parental relationship. The parent’s right may be forfeited if the parent does not exercise reasonable firmness in declining to yield to obstacles. Id.

In Baby Boy A. v. Catholic Social Services, 512 Pa. 517, 517 A.2d 1244 (1986), the Supreme Court held that even though the father of a child was illiterate and incarcerated, his failure to show any interest in the life of his child constituted failure to perform parental duties. However, where an incarcerated parent has regularly corresponded with his child and inquired about the child’s welfare, the Court has found that the parent has consistently used those resources available to him to take and maintain a place of importance in the child’s life. In re Adoption of M.J.H., 348 Pa.Super. 65, 501 A.2d 648 (1985).

In the case before us, although appellant has not totally ignored his children as the incarcerated parent in Baby Boy A. did, use of the resources available to him to maintain a place of importance in his children’s lives has been minimal. Unlike the parent in M.J.H., appellant has not consistently attempted to maintain contact with his children and he has not used the means available to him to attempt to overcome the obstacles impeding a parent/child relationship. Therefore, we conclude that there is competant evidence to support the trial court’s order terminating the parental rights of J.S., Jr. to J.E.S. and C.S.

Order affirmed.

CERCONE, J., filed a dissenting opinion.

CERCONE, Judge,

dissenting:

I dissent. So much hearsay testimony pervaded the entire hearing, and was permitted to such an extent as to negate the whole purpose of a fair trial, to-wit, to admit only that evidence that was pertinent, relevant, material and lawful in determining the facts and law applicable to this case. This was not done. As a result, the defendant was deprived of the right to confront witnesses who allegedly had first hand knowledge of the relevant events but was faced, rather, with the burden of refuting hearsay testimony.

In Commonwealth v. Bracero, 515 Pa. -, 528 A.2d 936 (1987) our Supreme Court cites the language from the opinion of the Supreme Court of the United States in Chambers v. State of Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) regarding the familar and traditional message of hearsay, as follows:

The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact. Out-of-court statements are traditionally excluded because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant’s word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).

Id., 515 Pa. at -, 528 A.2d at 939.

It cannot be determined with any assurance that this kind of hearsay evidence did not carry the case against defendant despite other strong unfavorable evidence. I would grant a new trial.


author: HOFFMAN, Judge:

text:
    529 A.2d 516
    COMMONWEALTH of Pennsylvania v. Ronald HARVEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed Aug. 10, 1987.
    Silvio F. Modafferi, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that appellate counsel was ineffective for failing to argue on direct appeal that the sentencing court abused its discretion by considering an impermissible factor when it imposed sentence. Because we find this contention to be without merit, we affirm the order of the lower court.

Appellant was convicted of murder in the third degree and possession of an instrument of crime. This conviction was affirmed on appeal. Commonwealth v. Harvey, 494 Pa. 154, 430 A.2d 1163 (1981). Appellant subsequently filed a pro se PCHA petition alleging appellate counsel’s ineffectiveness. Counsel was appointed and an amended petition was filed. Following a hearing, the lower court denied the petition and this appeal followed.

Appellant contends that his appellate counsel was ineffective for failing to challenge the imposition of sentence on direct appeal. He argues that the sentencing court abused its discretion by considering his father’s criminal history before imposing sentence. We disagree.

When confronted with a claim of ineffective assistance of counsel, we must conduct a two-part analysis. Initially, we determine whether counsel was, in fact, ineffective. If our review of the record reveals that counsel was ineffective, we must then determine whether appellant has shown that counsel’s ineffectiveness worked to his prejudice. Commonwealth v. Pierce, 515 Pa.-, -, 527 A.2d 973, 976 (1987).

The determination whether counsel was, in fact, ineffective is itself arrived at through a two-part test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if we find that appellant’s claim does have arguable merit, we must next determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra, (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)). With regard to the prejudice element, our Supreme Court in Pierce adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra, 515 Pa. at —, 527 A.2d at 976. Under Strickland, to prove that counsel’s error resulted in prejudice, an appellant must show that it was “so serious as to deprive [him or her] of a fair trial, a trial whose result is reliable.” Strickland v. Washington, supra 466 U.S. at 687, 104 S.Ct. at 2064.

Applying this analysis, we must now determine whether appellant’s claim of ineffective assistance of counsel has arguable merit. The imposition of sentence is vested within the sound discretion of the sentencing court. Commonwealth v. Sanders, 339 Pa.Superior Ct. 373, 381, 489 A.2d 207, 211 (1985). The court’s determination must not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 255, 416 A.2d 455, 457 (1980). An abuse of discretion may be defined as:

not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or illwill [sic], as shown by the evidence or the record, discretion is abused.

Commonwealth v. Jackson, 336 Pa.Superior Ct. 609, 627, 486 A.2d 431, 441 (1984) (citations omitted).

Here, in formulating its sentence, the sentencing court noted that it was considering the pre-sentence investigation, the appellant’s prior record and the chances of rehabilitation. N.T. February 20, 1984 at 12-14. In addition, the court clearly noted that it was not considering appellant’s father’s criminal record nor the appellant’s relationship with his father in imposing the sentence:

... and I’m not taking into consideration the fact that he’s probably still — that he may — I can only speculate and I will not consider it as a fact that he’s been a hero worshipper of his father, not because of what good his father’s [sic] done for him apparently he didn’t do anything for him. But apparently of his father’s achievements over the years. That’s the impression I get from people that have interviewed him. I’m not taking that into consideration, however. I’m just judging him on himself and because it is what I thought a serious crime done openly. That is what the jury found, and I’m going to sentence the defendant as follows.

N.T. supra at 14. We have no reason to believe that, despite the court’s disclaimer, it considered this impermissible factor. Nor will we find that the court’s mere mention of the factor constituted manifest abuse of discretion. Accordingly, because we will not find counsel ineffective for failing to pursue this frivolous issue, appellant’s claim of ineffective assistance of counsel lacks arguable merit. Commonwealth v. Parker, supra.

For the above-stated reasons, we affirm the order of the lower court.

Affirmed.

      . The Strickland Court premised its test for prejudice upon the constitutional right to a fair trial as ensured through the adversarial process. Strickland v. Washington, supra 466 U.S. at 686, 104 S.Ct. at 2064. The Court, therefore, limited the test to alleged errors at trial and at capital sentencing proceedings which, like trials, have an adversarial nature. However, the Court noted that because noncapi-tal sentencing proceedings are not wholly adversarial in nature, it "need not consider the role of counsel in an ordinary sentencing ... [which] may require a different approach to the definition of constitutionally effective assistance.” Id. Because we find here that appellant's claim lacks arguable merit, we need not address the question of the appropriate test for prejudice with regard to ineffective assistance allegations at non-capital sentencing proceedings.


author: TAMILIA, Judge:

text:
    529 A.2d 518
    Patricia MacCartney PALMATIER v. James MacCARTNEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1987.
    Filed Aug. 7, 1987.

      Daniel F. Glassmire, Coudersport, for appellant.
    Martha J. Duvall, Assistant District Attorney, Couders-port, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

Appellant/father appeals the trial court’s grant of appel-lee/mother’s Petition to Modify Support Order. We affirm the Order of the lower court.

The parties entered an agreement on March 23, 1981, under which father was to pay mother $300 per month for support of their four minor children. A divorce decree dated April 22, 1981 incorporated this agreement. In February of 1983, father filed a Petition to Modify the Support Order. An Order was issued on March 3, which required that during the summer months when father had custody of the children, he would be responsible for only one-third of his support obligation under the prior Order. On August 15, 1986, mother filed a Petition to Modify Support Order. In her Petition to Modify Support Order, mother claimed there had been a change of circumstances in that the $300 per month support was no longer adequate to support four teenage boys whose expenses had increased. A hearing on this modification was held on September 9, 1986 before senior Judge Paul B. Greiner, specially presiding, and subsequently, the child support Order was increased from $300 a month to $400 a month, with'no credit to father for the periods during which the children visit him. Father filed notice of appeal on October 22, 1986. The lower court issued a memorandum opinion and Order on January 12, 1987.

The lower court, in its memorandum opinion and Order of court, found that both parties had remarried after the divorce. Both are employed as school teachers. Mother teaches in New York State and is paying $160 per credit for thirty credit hours toward a required master’s degree. Her net income from teaching is $349.82 per two-week pay period or $174.92 per week. Additionally, mother works as a waitress for approximately twenty hours per week at $2.35 per hour, for an average of $35 per week, plus average tips of $10 per night, Monday through Thursday and $25 per night on Fridays. With Internal Revenue Service deductions allowed, mother’s net income is about $236 per week.

Father’s net income is $1,479.12 per month or $341.33 per week. The court looked to the applicable county support guidelines and determined that with four dependents, father’s obligation would be $87 per week or $377 per month. The lower court also found father’s living expenses (with the $300 support payments deducted) to be $1,116.97, which would leave him $362 as an available balance. The trial court concluded that the monthly expense payments of father included amounts for payments on charge accounts “all of which cannot be attributed to the necessities of life and particularly to his own maintenance, clearly indicating ‘overspending’ and lack of good fiscal management.”

In Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 795 (1985), this Court restated the standard of review applicable in child support cases:

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Downie v. Downie, 314 Pa.Super. 548, 461 A.2d 293 (1983). An abuse of discretion is not “ ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or illwill, as shown by the evidence or the record, discretion is abused.’ ” Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982) (citations omitted); Commonwealth ex rel. Darling v. Darling, 300 Pa.Super. 62, 445 A.2d 1299 (1982).

Id., 344 Pa.Superior Ct. at 279, 496 A.2d at 794. See also Kopp v. Turley, 359 Pa.Super. 106, 518 A.2d 588 (1986).

Additionally, orders must be fair and not confiscatory and must allow for reasonable living expenses for the supporting parent. Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985) (citing Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983)).

In a Petition to Modify a Support Order, the petitioner carries the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support Order. Koller v. Koller, 333 Pa.Super. 54, 58, 481 A.2d 1218, 1220 (1984) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)). The lower court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate that the movant did or did not meet the burden of proof as to changed circumstances. Koller, supra, 333 Pa.Superior Ct. at 56, 481 A.2d at 1220; Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983).

In the instant case, the lower court committed no abuse of discretion. It had before it detailed income and expense information from which it could have found a material change in circumstances existed. The court questioned appellee as to why she felt she should receive an increase in child support for the boys. Her response was:

Alright, the boys’ ages and the amount of food they eat now is greater. Also the prices for clothing is much more. Even though they have jobs, except for the younger, and with Jarett driving the insurance and needs are greater. I am working two jobs to maintain the home and also, when the children in the summer, (sic) when they visit their father the support is cut which is usually in August and it comes time for school clothing and it makes it very difficult for me alone to maintain them.

(T.T. 9/10/86, p. 8).

The court also worked within the county support guidelines, giving consideration to expenses of both parties, and determined that father’s obligation should be $377 per month. Contrary to the appellant’s contention, when the initial agreement was made, the mother was employed as a sales person in a department store, working on salary and commissions. Although remarried, aside from contribution to payment of the mortgage and car insurance, her present husband works out of town and contributes nothing to the household or childrens’ expenses. In addition to her ordinary expenses, she is attending graduate school to assure her accreditation as a teacher and her average monthly expense is $120.

The mother admittedly had increased income, but as the court aptly pointed out, increased income must be considered in relation to expenses. See Commonwealth ex rel. Littman v. Littman, 260 Pa.Super. 97, 393 A.2d 1030 (1978). There has been no increase in the agreement since 1981 and the combined effect of inflation, Shapera v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978); Commonwealth ex rel. Luongo v. Tillye, 229 Pa.Super. 453, 323 A.2d 172 (1974), the education expenses the mother is required to bear to remain employed and the increased expenses incurred by the mother for children, now five years older moving into high school and who in all respects require more, cannot be ignored. Commonwealth ex rel. Balph v. Balph, 210 Pa.Super. 244, 232 A.2d 76 (1967). In this case, since the original agreement was without testimony, a court may be justified in examining the entire situation and may not be limited to considering only changed circumstances. See Commonwealth ex rel. Lyle v. Lyle, 248 Pa.Super. 458, 375 A.2d 187 (1977). Moreover, the court found that at least part of father’s loan obligations were for the benefit of third parties and not solely for his own maintenance, so that he had additional income available for child support. In addition, his wife is employed and, while her income is not available for support, its effect on the total financial status of the appellant cannot be ignored.

Finding no abuse of discretion, we affirm the Order of the lower court.

Order affirmed.

      . At the time of the hearing, the boys were ages 16, 15, 14 and 11 (H.T. 9/10/86, p. 3).

      . Support guidelines are required for the courts of common pleas pursuant to 23 Pa.C.S.A. § 4322.


author: CAVANAUGH, Judge:

text:
    529 A.2d 521
    Norman B. STEMPLER and Patricia Stempler, h/w, Appellants, v. FRANKFORD TRUST CO, Commonwealth Land Title Insurance Company, Jay Bomze, Esq., Appellees.
    Superior Court of Pennsylvania.
    Submitted March 24, 1987.
    Filed Aug. 12, 1987.

      James J. Oliver, Norristown, for appellants.
    James H. Gorbey, Jr., Media, for Frankford, appellee.

      Charles I. Richman, Philadelphia, for Commonwealth Land, appellee.
    Ernest Iannelli, Philadelphia, for Bomze, appellee.
    Before CAVANAUGH, BROSKY and TAMILIA, JJ.
   CAVANAUGH, Judge:

The issues involved in this appeal are whether the court erred in sustaining the preliminary objections in the nature of a demurrer of the defendant, Frankford Trust Company, to the plaintiffs’ complaint and whether the court should have allowed an amendment to the complaint, rather than dismissing the complaint.

The appellant, Norman B. Stempler, the plaintiff below, and his wife, Patricia G. Stempler, purchased a condominium in 1980 located in Ambler, Upper Dublin Township, Pennsylvania. The mortgage money was provided by Frankford Trust Company in the amount of $117,000.00. The purchase price of the condominium was $130,000.00. Title insurance was provided by Commonwealth Land Title Insurance Company and the purchasers were represented in connection with the sale by Jay Bomze, Esq.

Apparently, all went well with the house until 1984 when the owners listed the house for sale. At that time it was discovered that a use and occupancy permit had not been issued by the Upper Dublin Township and that there were defects in the construction of a wall that allegedly would cost in excess of $50,000.00 to correct. The defects had to be removed before a use and occupancy permit could be issued.

On July 23, 1985 the appellant commenced a civil action against Frankford Trust Company, Commonwealth Land Title Insurance Company and Jay Bomze, Esq. Frankford Trust Company filed preliminary objections in the nature of a demurrer, which were granted by the court below, and the complaint was dismissed as to that defendant. The preliminary objections also raised other issues which are not relevent to this appeal. An appeal has been taken to this court from the judgment entered in favor of Frankford Trust Company.

The first issue is whether the court properly sustained Frankford Trust Company’s preliminary objections in the nature of a demurrer. A demurrer admits all well pleaded facts in the pleading it attacks as well as all inferences which may reasonably be deduced therefrom. International Association of Firefighters, Local 2493 v. Loftus, 80 Pa.Cmwlth. 329, 471 A.2d 605 (1984); Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). The alleged facts leading to the complaint against Frankford Trust Company were that its appraiser made a final inspection before settlement and it was aware, or should have been aware, of substantial defects and that it did not notify the appellant of these defects. Frankford Trust Company wrote to the buyers and listed items necessary for completion of the premises. The appellant also alleged in its complaint:

24. As the construction mortgage lender for the Tan-nerie Wood project, defendant Frankford Trust Company through its building inspectors was fully aware of all progress in construction of the condominiums including plaintiffs home located at 2803 Jefferson Court.
25. Through its periodic inspections, defendant Frank-ford Trust Company, its agents, servants and employees, knew or should have known that the substantial construction defects existed in the condominium located at 2803 Jefferson Court.
26. Through its periodic inspections, defendant Frank-ford Trust Company knew or should have known that no use and occupancy permit had been issued for the premises located at 2803 Jefferson Court at the time of settlement and had a duty to inform plaintiff of the absence of a use and occupancy permit.

For purposes of our review of the complaint, only well pleaded material facts are admitted, and not conclusions of law. Berger v. Ackerman, 293 Pa.Super. 457, 439 A.2d 200 (1981). All that the appellants alleged factually was that Frankford Trust Company made periodic inspections and knew, or should have known, of substantial construction defects, and that no use and occupancy permit had been issued for the premises. There are no allegations of any facts which constitute the manner in which the Frankford Trust Company inspected the appellants home nor the dates and extent of the inspections. There is no allegation that Frankford Trust had the duty to appellant to inspect the premises or to see that a use and occupancy permit had been issued. “It is axiomatic that in order to state a cause of action for negligence, the appellants must have been owed some duty by appellee to conduct quality inspections for their benefit.” Henry v. First Federal Savings & Loan Association, 313 Pa.Super. 128, 132, 459 A.2d 772, 774 (1983). Generally there is no duty owed to the borrower by the mortgagee-lender to inspect the property to determine its condition and in the absence of an obligation assumed by the lender, its inspection of the property is made only to ascertain whether the property has sufficient value to secure the loan and is made by the lender for its sole benefit. Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979). See also Scott v. First Investment Corp., 556 F.Supp. 782 (W.D.Pa.1983).

In their complaint against Frankford Trust Company, appellants failed to set forth a cause of action upon which relief could be granted. Pa.R.C.P. 1019(a) requires that the material facts upon which a cause of action is based shall be set forth in a concise and summary form. It is fundamental that in a negligence action the plaintiff must allege facts •establishing a duty owed to the plaintiff, the breach of which duty gave rise to the damages allegedly suffered by the plaintiff. Pike City Hotels Corp. v. Kiefer, 262 Super. 126, 396 A.2d 677 (1978). In that case, suit was brought against the architect and electrical contractor, Crowder, for damages resulting from a fire in a kitchen which was undergoing extensive renovations. In the complaint against the electrical contractor, it was alleged that the electrical contractor was engaged to perform electrical work in connection with renovations in the dining hall, and undertook to furnish labor and materials and to perform electrical work for alterations and additions to the kitchen. It was alleged that the work was not performed in a workmanlike manner and that the electrical contractor was negligent in several specific respects. The court sustained a demurrer and dismissed the complaint as to Crowder. The court stated at 262 Pa.Super. 134-5, 396 A.2d 681 “We agree with the lower court that the appellants have failed to aver any material fact upon which to predicate a duty running between them and Crowder.” (Emphasis added.)

The mere allegation, without more, that the appellants performed inspections of their house, does not set forth a cause of action based on negligence. The appellant alleged no basis for any duty owed to him by Frankford Trust Company with respect to inspections. Appellant admits that his cause of action is based solely on negligence and not contract. (See Plaintiffs’ Answer to Defendant Frank-ford Trust Company Preliminary Objections) The complaint does not set forth a basis for a cause of action in negligence against Frankford Trust Company and the demurrer was properly sustained.

The appellant further contends that the court erred in not permitting an amendment to the complaint rather than dismissing the complaint. We note initially that the appellant did not seek to amend the complaint in the court below prior to the entry of the order dismissing the complaint, notwithstanding ample opportunity to do so. Frank-ford Trust Company filed preliminary objections in the nature of a demurrer alleging that the complaint failed to set forth a cause of action. Under Pa.R.C.P. 1028(c) the appellant could have filed an amended complaint as of course within ten days after service upon him 6f the preliminary objections. Instead of availing himself of this opportunity, the appellant filed an answer to the preliminary objections contending that the facts alleged in the complaint set forth a cause of action. Similarly, in his “Memorandum of Law in Opposition to Defendant Frankford Trust Company’s Preliminary Objections”, the appellant vigorously argued that the complaint was adequate.

Except where an amendment is allowed as of course under Pa.R.C.P. 1028, or granted as of right under other provisions of the Rules of Civil Procedure, the allowance of an amendment under Pa.R.C.P. 1033 is completely subject to the discretion of the court. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983), General Machine Corp. v. Feldman, 352 Pa.Super. 180, 507 A.2d 831 (1986). We will not reverse the decision of the trial court in denying an amendment to the pleadings in the absence of a clear abuse of discretion. Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). See also Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983). Amendments are to be liberally allowed. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). However, amendments may be denied where there is prejudice or surprise to the opposing party. Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982). Biglan v. Biglan, 330 Pa.Super. 512, 479 A.2d 1021 (1984). Also, an amendment is properly refused where it appears to be a reasonable possibility that the amendment will be futile. Spain v. Vincent, supra, Mace v. Senior Adult Activities Center of Montgomery County, 282 Pa.Super. 566, 423 A.2d 390 (1980). The court below determined that an amendment would be futile, and we agree. See 5 Standard Pennsylvania Practice 2nd, § 24:4-24:6. In the memorandum of law filed on behalf of the appellant in opposition to defendant Frankford Trust Company’s preliminary objections, the appellant stated (pages 82-83a): “Plaintiff’s cause of action against Frankford Trust Company is based upon its negligent failure to inform plaintiff of the structural defects in the condominium and the consequent inability to obtain a use and occupancy permit.”

Further, in relation to the demurrer, the appellant stated: “The Complaint sets forth a bona fide claim for damages resulting from the negligent inspection/appraisal of Frank-ford Trust Company’s agents, servants and employees, its breach of fiduciary duties and its failure to inform plaintiff of the structural defects in the condominium.”

Even at this late stage in the proceedings the appellant has given no indication of facts on which a cause of action could be based. The grant of a demurrer would obviously be meaningless if the concept of amendment to a pleading were extended to permit one who has articulated no basis for a cause of action, to continue searching until one may be located. The liberality in allowing amendments must not be construed to permit amendments at any time where ample opportunity is given to amend a pleading and a party refuses to do so but persists in its claim that a cause of action has been set forth. In these circumstances once a court has properly determined that a cause of action does not exist, there is no abuse of discretion in denying an amendment where the facts already established indicate that the amendment would be futile.

Judgment affirmed.

      . The following is an excerpt from the letter dated May 9, 1980 sent by Frankford Trust Company to Mr. and Mrs. Stempler:
      This is to advise that the appraiser for Frankford Trust Company made a final inspection yesterday of premises 2803 Jefferson Road, Ambler, Upper Dublin Twp., Montg. Co., Pa., and found the following items necessary for completion, namely:
      Grading and seeding.
      Final macadam street surface.
      Final macadam driveway surface.
      Install all floor covering.
      Complete installation of kitchen cabinets, appliances and equipment.
      Install rear wood deck railing
      Complete installation of hand railings, interior trim and doors (in process).
      Complete installation of all plumbing fixtures including domestic hot water heater (in process)
      Install gutters and downspouts.
      Very truly, s/Doris E. Fauser Doris E. Fauser Mortgage Officer

        May 13, 1980 — I/we have reviewed the incomplete items listed above, and it is agreeable to me/us to complete settlement today. This letter is being signed to induce the Frankford Trust Company to advance $117,000.00 representing a first mortgage on 2803 Jefferson Road, Ambler, Pa.
      s/Norman B. Stempler (SEAL) Norman B. Stempler s/Patricia G. Stempler (SEAL) Patricia G. Stempler

      . Pa.R.C.P. 1028(c) provides:
      Rule 1028. Preliminary Objections
      (c) A party may file an amended pleading as of course within ten
      (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.


author: OLSZEWSKI, Judge:

text:
    529 A.2d 525
    In the Matter of the ESTATE OF A. LaRue VELOTT, Deceased. Appeal of Larue H. VELOTT.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1987.
    Filed Aug. 13, 1987.

      Robert B. Hoffman, Harrisburg, for appellant.
    Peter Burchanowski, Williamsport, for appellee.
    BEFORE WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Appellant, LaRue H. Velott, appeals from the order entered in the Court of Common Pleas of Lycoming County, Orphans’ Court Division, denying appellant’s motion to remove co-executors and for surcharge. On appeal, appellant contends that the trial court erred in denying his motion to remove co-executors and for surcharge without a hearing pursuant to 20 Pa.C.S.A. Sec. 3183. We agree with appellant’s contention. We, therefore, vacate the order denying appellant’s motion to remove co-executors and for surcharge and remand the case to the trial court for a hearing to consider appellant’s motion to remove co-executors and for surcharge.

Before addressing the merits of appellant’s contentions, a brief recital of the relevant facts is necessary. The decedent, A. LaRue Velott, died in March of 1979, and his will was subsequently probated with his wife, Esther Velott, and the Commonwealth Bank and Trust Company being given letters testamentary as co-executors of the estate. In August of 1981, the co-executors filed a first and partial accounting regarding the handling of decedent’s estate; but exceptions to the first and partial account were subsequently filed by Suzanne Stroble, Dona Staccone, Michael S. Velott and appellant, the children of the decedent and beneficiaries under his will. In September of 1982, following protracted negotiations regarding the issues raised by the exceptions to the first and partial accounting, the co-executors and the beneficiaries of the estate joined in a stipulation resolving the different objections to the first and partial accounting and agreeing on the contents and confirmation of the supplemental first and partial accounting. The co-executors, in September of 1983, filed a second and final accounting, to which the beneficiaries again filed various exceptions.

In May of 1984, Michael S. Velott, Dona Staccone, and appellant filed a petition to set aside stipulation, which sought to have the stipulation of September 1982 set aside and to reopen various issues settled by the confirmation of the supplemental first and partial accounting. Following the filing of a motion for summary judgment by Suzanne Stroble and the executors of the estate, the trial court in April 1985 entered an order, with an accompanying opinion, granting Ms. Stroble’s motion for summary judgment and denying appellant’s and the other beneficiaries’ petition to set aside the stipulation. Appellant then filed a motion to reconsider the order denying the petition to set aside stipulation, which the trial court summarily denied.

In July 1985, appellant also filed a motion to remove co-executors and surcharge that alleged numerous improprieties in the administration of decedent’s estate. On July 30, 1985, the trial court entered the order denying appellant’s motion to reconsider. The order also made the following statement regarding appellant’s motion to remove:

The second motion before the Court is a motion of LaRue H. Velott to remove co-executors and for surcharge. It would appear that most of the issues raised in this motion have been fully and finally litigated at the trial level. It is not clear, however, that all of the issues have been so litigated. Accordingly, the Court Administrator shall schedule a hearing on that motion. At the hearing, the Court will first entertain arguments on the extent to which issues raised in the motion have been fully and finally litigated. Briefs on the issue are to be submitted in advance of the hearing. To the extent that the Court finds that issues are still open, testimony will be received at such hearing.

Trial court order of 7/30/85 (emphasis added). The trial court, however, neither scheduled nor held a hearing on appellant’s motion to remove co-executors and for surcharge. Rather, on May 16, 1986, the trial court, without a hearing to remove co-executors and for surcharge, entered the following order and opinion:

Before the Court is the Motion of Larue H. Velott to Remove Co-executors and for Surcharge. After reviewing that Motion and the Briefs advanced in support of and opposition to it the Court finds that this Motion raises issues which have for the most part been fully and finally litigated by virtue of a stipulation entered into by the parties, followed by a supplemental first and partial account which was confirmed by the Court on September 20,1982 and from which no appeal was taken; and by the entry of a Motion for Summary Judgment on a Petition for Review which Order was entered by the Court on April 15,1985. To the extent that issues are raised which have not been fully and finally litigated, the proper method to assert arguments is through exceptions to the second and final account. Motion to Remove is DENIED.

Trial court order and opinion of 5/16/86. Appellant then filed an appeal in this Court from the trial court’s order pursuant to the collateral order doctrine. See Estate of Georgiana, 312 Pa.Super. 339, 343, 458 A.2d 989, 991 (1983).

On appeal, appellant contends that the trial court erred by denying the motion to remove co-executors and for surcharge without a hearing pursuant to 20 Pa.C.S.A. Sec. 3183. We agree. 20 Pa.C.S.A. Sec. 3183, entitled “Procedure for and effect of removal,” provides in pertinent part:

The court on its own motion may, and on the petition of any party in interest alleging adequate grounds for removal shall order the personal representative to appear and show cause why he should not be removed, or, when necessary to protect the rights of creditors or parties in interest, may summarily remove him.

(Emphasis added.) The statute mandates that upon the petition or motion of a beneficiary or other interested party alleging adequate grounds for removal of an executor/executrix, the trial court shall have a hearing to determine whether the executor/executrix should or should not be removed from his/her position. In addition, though not previously construing the above language of 20 Pa.C.S.A. Sec. 3183, this Court in confronting a fact pattern similar to the present case required the trial court to hold a hearing. In Estate of Wolongovich, 339 Pa.Super. 452, 489 A.2d 248 (1985), one of the beneficiaries of the decedent’s estate filed a petition to remove the executrix for nonperformance of duties, alleging both the executrix’s failure to perform duties required by law and the executrix’s mismanagement of the estate’s assets. In an attempt to expedite the matter, the trial court did not hold a hearing on the petition to remove; rather, the trial court merely had counsel for each side summarize their positions regarding removal of the executrix. We, however, remanded the case for a full evidentiary hearing on the basis that the trial court abused its discretion in ordering removal of the executrix without a hearing. Id., 339 Pa.Superior Ct. at 457, 489 A.2d at 250. After noting that removal of a fiduciary is within the discretion of the trial court, we stated that the following considerations lead to the conclusion that the trial court abused its discretion:

The removal of a fiduciary is a drastic action which should be taken only when the estate is endangered and intervention is necessary to protect the property of the estate. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 295, 270 A.2d 216, 224 (1970). Particularly drastic is the removal of the executrix chosen by the testator, since her appointment represents an expression of trust and confidence in her.

Id., 339 Pa.Superior Ct. at 455, 489 A.2d at 249 (quoting In Re Pitone’s Estate, 489 Pa. 60, 68, 413 A.2d 1012, 1016 (1980)). We also noted that “without sworn testimony, we are unable to review that which is mere allegation and that which has not been subjected to the test of an evidentiary hearing and judicial determination.” Id., 339 Pa.Superior Ct. at 457, 489 A.2d at 250.

In the present case, appellant’s motion to remove co-executors and for surcharge did allege adequate grounds for removing the co-executors, pursuant to 20 Pa.C.S.A. Sec. 3182, entitled “Grounds for removal,” and did request a hearing on the motion pursuant to 20 Pa.C.S.A. Sec. 3183. The trial court denied the motion to remove without a hearing on the basis that the grounds for removal alleged in the petition were barred by res judicata since the grounds had been previously raised and finally litigated either in the stipulation or the motion for summary judgment on the petition to set aside stipulation. See trial court order and opinion of May 16, 1986. In In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984), this Court stated, “The essential inquiry (in determining whether res judicata is applicable) is whether the ultimate and controlling issues have been decided in a prior proceeding in which the parties had an opportunity to appear and assert their rights.” Id., 328 Pa.Superior Ct. at 450, 477 A.2d at 531. We find that the res judicata rationale enunciated in the trial court opinion was insufficient to support the trial court’s denial of a motion without a hearing. Our review of the stipulation, the petition to set aside stipulation, the order and opinion granting the motion for summary judgment on the petition to set aside stipulation, and the motion to remove co-executors and for surcharge reveal that, though some similarities exist, the motion to remove co-executors and for surcharge raises specific factual issues regarding the co-executors’ conduct in managing the estate that were not found in the earlier documents. Appellant, therefore, alleged adequate grounds to have the co-executors removed, and the trial court erred in failing to hold a hearing pursuant to 20 Pa.C.S.A. Sec. 3183 to consider the motion. We, consequently, remand the matter for a hearing in which the trial court must consider the allegations raised in appellant’s motion.

The order of the trial court denying appellant’s motion to remove co-executors and for surcharge is vacated and the matter remanded for a hearing pursuant to 20 Pa.C.S.A. Sec. 3183. Jurisdiction is relinquished.

      . The trial court’s order is appealable under the collateral order doctrine. In Estate of Georgiana, 312 Pa.Super. 339, 458 A.2d 989 (1983), this Court stated:

        We find that an order denying a petition for removal of an executor is a final order proper for appellate review. We note that appellate courts in Pennsylvania have decided appeals from orders denying petitions for removal, but without addressing the jurisdictional issue. In Re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980); Estate of Hamill, 487 Pa. 592, 410 A.2d 770 (1980); Estate of Halper, 487 Pa. 408, 409 A.2d 415 (1980); cf. In Re Estate of Croessant, 482 Pa. 188, 393 A.2d 443 (1978) (citing In Re Crawford’s Estate, 340 Pa. 187, 16 A.2d 521 (1940) (lower court removing trustee subject to appellate review)). The action taken by the courts in these cases clearly indicates that the question involved is of sufficient importance to necessitate immediate appellate review.

        Id., 312 Pa.Superior Ct. at 343, 458 A.2d at 991 (emphasis added).

      . The following factual issues were raised for the first time in appellant’s motion to remove co-executors and for surcharge:
      The executors fail to take necessary and appropriate actions to investigate improprieties in the administration of the estate. (Motion to Remove Co-executors and for Surcharge at Paragraphs 1, 3, and 9);
      The executors have failed to oppose, as debts of the estate, monies expended by the co-executor in connection with the decision whether to elect against the will, (Id. at Paragraph 4);
      The executors failed to take reasonable action to sell numerous properties resulting in diminished values at the time of sale, (Id. at Paragraph 6);
      The executors sold several properties to beneficiaries at prices significantly less than prices in the estate inventory, (Id. at Paragraph 7);
      The executors failed to file timely inventories and accounting of the estate transactions, (Id. at Paragraph 8);
      The executors have incurred unnecessary and unreasonable attorneys fees and administrative expenses, and failed to oppose as unreasonable and unnecessary certain attorneys fees which have been submitted and are now pending, (Id. at Paragraph 12); and

        The executors refused to grant appellant access to estate and attorney’s records, but instead required him to obtain a court order, (Id. at Paragraph 13).

      . Nothing in this opinion should be construed to mean that the trial court may not consider some of the allegations raised in appellant’s motion as being barred by res judicata if the trial court finds they were finally litigated in an earlier proceeding. Those allegations, however, raised for the first time in appellant’s motion to remove co-executors and for surcharge must be considered in the hearing by the trial court to determine whether the allegations warrant removal of the co-executors.


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    529 A.2d 528
    Milton A. CALESNICK and Eleanor J. Calesnick, husband and wife, Appellants, v. REDEVELOPMENT AUTHORITY OF CITY OF PHILADELPHIA. Milton A. CALESNICK and Eleanor J. Calesnick, husband and wife v. REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed June 29, 1987.
    Reargument Denied Aug. 21, 1987.

      Milton A. Calesnick, in propria persona.
    Carl S. Primavera, Philadelphia, for appellant in No. 2906 and appellee in No. 2653.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal and cross-appeal from the lower court’s order of September 19, 1986 affirming its order of July 24, 1986 denying cross-appellant’s petition to strike the default judgment and granting its petition to open the judgment. Appellants contend that the lower court erred in granting the petition to open and cross-appellants contend that the court erred in denying their petition to strike. For the reasons that follow, we reverse the order granting the petition to open and denying the petition to strike and order that the judgment be stricken.

On October 28, 1985, appellants, the Calesnicks, filed an action, pro se, against cross-appellants, the Redevelopment Authority of Philadelphia (RDA). The suit sought dismissal of two prior lawsuits filed in 1970 against the Calesnicks by the RDA in the Court of Common Pleas of Philadelphia. On November 19, 1985, the Calesnicks delivered a notice of intent to take a default judgment to the RDA. On November 20, 1985, the RDA filed a petition for removal of the case to the United States District Court for the Eastern District of Pennsylvania. The RDA filed an answer and counterclaim in the federal court and a later motion for judgment on the pleadings. On April 18, 1986, the federal court denied the RDA’s petition for removal and remanded the case and the record back to the court of common pleas. The Calesnicks filed a praecipe for the entry of judgment against the RDA on May 12, 1986 for failure to file a timely answer, and judgment was entered by the prothonotary. The RDA filed a petition to strike and/or open the judgment. In its petition, the RDA alleged, inter alia, that the complaint failed to state a cause of action and that the answer filed in federal court was incorporated into the record in the court of common pleas, thus precluding the proper entry of a default judgment.

The court below denied the petition to strike the judgment on the ground that the complaint had been properly served, and thus there was no defect on the face of the record. The court granted the petition to open, however, holding that (1) the petition had been filed timely, (2) the RDA offered a reasonable explanation for the failure to file a timely answer, and (3) a meritorious defense was presented. The Calesnicks’ motion for reconsideration was denied, and this appeal followed.

The RDA contends that the lower court erred in denying its petition to strike the default judgment because the complaint failed to set forth a cause of action. We agree. A petition to strike a judgment may be granted only if defects appear on the face of the record. Franklin Interiors v. Wall of Fame Management, 510 Pa. 597, 599, 511 A.2d 761, 762 (1986); Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819, 821 (1972).

In Frankel v. Donehoo, 306 Pa. 52, 158 A. 570 (1931), our Supreme Court stated that a default judgment does not admit the sufficiency of the pleading to sustain a judgment, nor does it admit that the facts as stated constitute a cause of action. Id., 306 Pa. at 57, 158 A. at 572. Our Courts have held that if the complaint fails to state a cause of action, the default judgment entered thereon should be stricken. See Rosser v. Cusani, 97 Pa.Superior Ct. 255 (1929). In Commonwealth, Dept. of Envtl. Resources v. Allias, 20 Pa.Commonwealth Ct. 222, 341 A.2d 226, (1975), the Court stated that “[e]ven though a judgment is entered, as here, if the face of the record shows the same to be baseless, the court should strike it off.” Id. at 226, 341 A.2d at 228 (citing Constable v. Andrews, 297 Pa. 285, 146 A. 899 (1929)). See also Wilkinsburg Borough v. School District, 298 Pa. 193, 202, 148 A. 77, 81 (1929); Alderfer v. Pendergraft, 302 Pa.Superior Ct. 210, 215, 448 A.2d 601, 604 (1982); Roberts v. Gibson, 214 Pa.Superior Ct. 220, 225, 251 A.2d 799, 802 (1969).

Here, the complaint on which the default judgment was entered challenged, on various grounds, two prior lawsuits filed in the Court of Common Pleas of Philadelphia in 1970. In the complaint, the Calesnicks did not allege an entitlement to damages, nor did they sue for any other type of relief that might potentially be cognizable in a separate action. See, e.g., Martin v. Poole, 232 Pa.Superior Ct. 263, 270, 336 A.2d 363, 367 (1975). Instead, their only requested relief was the dismissal of the two former actions. These claims could only have been raised within the confines of the lawsuits that the Calesnicks seek to have dismissed. For this reason, we conclude that the Calesnicks have failed to set forth in their complaint a cause of action upon which relief may be granted. Accordingly, we reverse the order of the court below and order that the judgment be stricken.

Order reversed. Judgment to be stricken.

       Because of our disposition of this case, we need not reach the other issues raised by the parties.


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    529 A.2d 530
    Jay L. FEDERMAN, M.D. v. Jeffrey POZSONYI, Appellant. Jay L. FEDERMAN, M.D. v. Jeffrey POZSONYI and Joseph M. Krause. Appeal of Joseph M. KRAUSE.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed Aug. 7, 1987.

      Julia B. Passyn, Philadelphia, for appellants.
    Philip Colicchio, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and MCEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

These are consolidated appeals from the April 13, 1987 Order of the lower court which denied appellant Jeffrey Pozsonyi’s petition to open and/or strike judgment by confession and also from the May 5, 1987 Order of the court below which denied Pozsonyi’s request for a stay of the April 13th Order pending appeal.

On January 1, 1983, appellee/lessor and Pozsonyi entered into a twenty-year residential lease for the rental of an apartment at 2000 Delancey Place, Philadelphia, Pennsylvania. The lease specifically prohibited assignments or subleasing without the written consent of the lessor.

On August 26, 1986, appellee filed a Complaint in Confession of Judgment for Possession of Real Property and Ejectment alleging Pozsonyi had violated and breached the terms of the lease agreement by:

(1) failing to timely remit payment of rental fees on Apartment 3W of 2000 Delancey Place, Philadelphia, PA as required by paragraph (a) of ‘Affirmative Covenants’ on page one (1) of the Lease;
(2) unlawfully assigning the lease agreement to Joseph M. Krause without the written consent of the plaintiff as required by paragraph (b) of ‘Negative Covenants’ on page one (1) of the Lease.

(Record at 4.)

Appellee bases his right to a Confession of Judgment on page 3, paragraph 17, of the lease which provides:

When this lease shall be determined by condition broken, ... it shall be lawful for any attorney as attorney for Lessee to file an agreement for entering in any competent Court an amicable action and judgment in ejectment against Lessee and all persons claiming under Lessee for the possession of the herein demised premises, for which this lease shall be sufficient warrant, whereupon, if Lessor so desires, a writ of execution or of Possession may issue forthwith, without any prior writ or proceedings whatsoever____

(Record, Exhibit D-2.)

On August 29, 1986, appellant Pozsonyi filed a petition to strike and/or open the confessed judgment. By Order dated April 13, 1987, the lower court denied the petition. As defenses to the action, appellant argued: (1) confession of judgment is not available for possession of residential real property, (2) the pleadings filed with the Prothonotary in Confession of Judgment are improper and (3) all rental payments have been made. The lower court responded to these allegations as follows:

Defendant cites no authority and we have found none to support the allegation that Confession of Judgment for possession of residential property is unlawful. Section 250.511 of the Pennsylvania Landlord and Tenant Act, 68 Pa. S.A. § 250.101 et seq. provides as follows:
Nothing contained in this article shall be construed as abolishing the right of any landlord to recover possession of any real property from a tenant by action of ejectment, or from instituting amicable action of ejectment to recover possession of any real property by confessing judgment in accordance with the terms of any written contract or agreement.
It is clear, therefore, that the Action for Confession of Judgment is proper. Furthermore, a careful review of plaintiffs filings with the Prothonotary indicates that they are complete, valid and lawful. Lastly, defendant’s allegations that rental payments were made, while correct, are irrelevant since such payments were made by Joseph Krause, the tenant occupying the premises in violation of the lease.

(Slip Op., Lehrer, J., 4/13/87, pp. 2-3.)

On May 5, 1987, the lower court also denied appellant Pozsonyi’s request for a stay pending appeal. Appellant Joseph Krause now appeals from that Order and appellant Pozsonyi appeals from the April 13, 1987 Order denying his petition to open.

Appellant Pozsonyi contends the lower court erred in refusing to open the confessed judgment because:

(1) confession of judgment is not an available remedy to landlords seeking to evict persons from their homes;
(2) the lease herein was not a confession of judgment instrument;
(3) notice required under the lease was not given;
(4) issues remain which should have been presented to the jury;
(5) appellee/lessor did not fulfill his obligation to act in good faith;
(6) appellee/lessor had no standing; and
(7) appellee/lessor did not show he has conformed to the Philadelphia Code.

Preliminarily, we find appellant has waived the issues concerning appellee’s lack of “good faith”, standing and compliance with the Philadelphia Code as they were not preserved below. Appellant has also failed to preserve his contention that confession of judgment was improperly entered as issues remain which should have been presented to the jury. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302; Trident Corporation v. Reliance Insurance Company, 350 Pa.Super. 142, 504 A.2d 285 (1986).

As to appellant’s remaining arguments, our scope of review is quite narrow. Appellate review of a trial court’s grant or denial of a petition to open a confessed judgment is limited to determining whether the court committed an error of law or manifestly abused its discretion. Lambakis v. Exar, 340 Pa.Super. 483, 490 A.2d 882 (1985). “In seeking to open a confessed judgment, a petitioner must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issue to a jury.” Sams Corporation v. Garin, 352 Pa.Super. 105, 107, 507 A.2d 402, 403 (1986). Furthermore, “[i]n determining the existence or non-existence of a meritorious defense, a court must view the evidence presented in the light most favorable to the moving party, accepting as true all evidence and reasonable and proper inferences flowing therefrom.” Hamilton Bank v. Rulnick, 327 Pa.Super. 133, 138, 475 A.2d 134, 137 (1984). We now review appellant’s contentions with these principles in mind.

Appellant acted promptly in filing his petition to open the confessed judgment, however, we find his defenses to the judgment are lacking in merit. Appellant claims that confession of judgment is not available to residential landlords seeking to evict their tenants. He bases his conclusion on the companion United States Supreme Court cases of D.H. Overmeyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972) and Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972). Contrary to appellant’s assertions, both Overmeyer and Swarb uphold the constitutionality of cognovit provisions where there has been a voluntary, knowing and intelligent waiver of the party’s due process rights. A review of the record in the instant action convinces us that appellant knowingly, voluntarily and intelligently waived his due process rights and agreed to the confession of judgment provision. Appellant negotiated the drafting of the lease through his attorney, and the lease itself reflects the various deletions and additions made pursuant to such negotiations.

Appellant also argues the lease was not a confession of judgment instrument as the paragraph upon which appellee relies does not contain the words “Confession of Judgment” or to “Confess Judgment”. Despite the fact the words “Confession of Judgment” do not specifically appear in the lease, it is clear that paragraph 17 of the lease, above, authorizes an amicable action in ejectment to be instituted by confession of judgment. In fact, during the lease negotiations, appellant’s attorney, in a letter to appellee’s attorney, requested that:

9) The confession of judgment in paragraph 16 (16 and 17 in my form) should be deleted.

(Record, Exhibit B-2.)

Appellee only agreed to deletion of paragraph 16 and left paragraph 17 in its original form. Appellant now attempts to argue paragraph 17 does not authorize confession of judgment when in fact it was so characterized by his own attorney. Therefore, we find confession of judgment was authorized by the lease instrument.

Appellant next asserts appellee failed to give him proper notice of the ejectment as the lease provides for ten (10) days notice by certified mail to lessee before the lessor may exercise any remedy for breach. Paragraph 36, “Addendum ‘A’ ”, of the lease provides:

36. Before exercising any remedies contained herein because of a non-monetary breach by Lessee, Lessor shall give Lessee ten (10) days written notice of such breach and Lessor’s intent to exercise any such remedies. (Emphasis added.)

Further, paragraph 26 of the lease provides that all notices required to be given by Lessor or Lessee shall be by certified mail, return receipt requested.

In appellee’s complaint in Confession of Judgment, both monetary and non-monetary breaches of the lease were alleged. Since either breach (non-payment of rent or unauthorized assignment) is sufficient to terminate the lease agreement, proper notice of one or both breaches is sufficient. Paragraph 36 of the lease does not address breaches occurring because of non-payment of rent, however, paragraph 19 provides in pertinent part:

If proceedings shall be commenced by Lessor to recover possession under the Acts of Assembly, either at the end of the term or sooner termination of this lease, or for nonpayment of rent or any other reason Lessee specifically waives the right to the three month’s notice and/or the fifteen or thirty days’ notice required by the Act of April 6, 1951, P.L. 69, and agrees that five days’ notice shall be sufficient in either or any other case. (Emphasis added.)

On February 28, 1986, appellee’s business agent sent a letter to appellant reiterating the unacceptability of his late rent payments and stating that he was to be put on notice that should he be late one more time, appellee would pursue a legal course of action appropriate to the breach of the lease (Record, Exhibit E-2).

On June 4, 1986, appellee’s business agent forwarded a letter to appellant advising him that he was in default for non-payment of rent and expected to vacate his apartment within thirty (30) days as his lease was terminated as of July 4, 1986. This letter was forwarded to appellant by both certified and regular mail. The certified letter was never signed by appellant and was returned. A copy of the notice and letter were also forwarded to appellant’s attorney by regular mail.

On July 15, 1986, appellee’s attorney forwarded a letter to appellant’s attorney confirming the termination of appellant’s lease as appellant’s attorney had instructed, by letter dated June 30, 1986, that all notices regarding appellant be sent to her office.

We find that appellee has complied with the notice requirements of the lease providing for five days notice in regard to non-payment of rent. An attempt to make service of the notice by certified mail was made, however, Pozso-nyi’s signature could not be obtained. The notices sent by regular mail to both Pozsonyi and his attorney were never returned and thus we must assume they were received. Appellant had been on notice for many months that he was in default for failure to pay his rent and in danger of having legal action brought against him. Appellant’s claims that he had no notice simply do not ring true.

Appellant Krause has raised the identical issues to.those raised by appellant Pozsonyi and we reach the same conclusions with respect to his arguments. Accordingly, both the April 13, 1987 Order denying appellant Pozsonyi’s petition to open and/or strike the confessed judgment and the May 5, 1987 Order denying a request for a stay pending appeal are affirmed.

Orders affirmed.