author: POPOVICH, Judge: WIEAND, Judge, KELLY, Judge,

text:
    544 A.2d 471
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles A. HOLLENBACH.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed June 24, 1988.

      David D. Noon, Assistant District Attorney, Sunbury, for Com., appellant.
    Elizabeth A. Beroes, Assistant Public Defender, Sunbury, for appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Northumberland County dismissing eighteen (18) criminal informations issued against the appellee, Charles A. Hollenbach, for alleged violations of Pa.R.Crim.P. 1100 by the appellant, Commonwealth of Pennsylvania. We reverse.

The record reveals that, following the issuance of nineteen (19) criminal informations docketed at Criminal 85-30 through 85-46-and Criminal 85-56 and 85-57, the appellee entered a plea of guilty on July 15, 1985, to the crimes charged. Sentence was scheduled for December 27, 1985. At the time stated, the following exchange took place:

MR. ROSINI: Your Honor, at this time the Commonwealth would call the matter of Commonwealth of Pennsylvania vs. Charles A. Hollenbach. Mr. Hollenbach was charged with Burglary, Theft by Receiving Stolen Property, and Criminal Mischief by a criminal information filed to CR-85-30. He previously entered a plea of guilty. Now, it is my understanding that at this time that Mr. Hollenbach is present to withdraw his plea of guilty and to be scheduled for trial. He is present in court with his attorney Ann Targonski for the purpose of withdrawing his plea.
THE COURT: There is more than just 85-30, there is 85-45, and they go up.
MS. TARGONSKI: Your Honor, it goes 31, 32, 33, 34, 35, 36, 37, through—
THE COURT: On the sentencing scheduled for today we are going to have a withdrawal of the guilty plea.
MS. TARGONSKI: On all counts, yes.
THE COURT: On all counts. Let me just get this record straight. Mr. Hollenbach on the 5th of July, 1985, you entered a guilty plea, your age is 22, you have had a tenth grade education, and, you must have worked at some kind of work. What kind work [sic] did you do?
THE DEFENDANT: I work for [sic] mentally retarded patients.
THE COURT: Well, the purpose Chuck, is so that the record reflects that on the 5th of July, 1985 you entered a guilty plea. Someone of your age, of your education, of your work experience, now wishes to withdraw his guilty plea, and wants to go to trial in this matter, these matters. Is that what you want to do today, withdraw your guilty plea?
THE DEFENDANT: Yes.
THE COURT: Now, Mr. Rosini, you might want to say something for the Commonwealth on when this is going to be rescheduled.
MR. ROSINI: Your Honor, whether it can be scheduled in January the Commonwealth would have 120 days to bring the Defendant to trial after his plea. He will be scheduled at the next available opportunity to try the defendant.
THE COURT: Well, I know that there were about 12 sentences that I was going to recite but, with the withdrawal of the guilty plea, we’ll mark the matter continued and the Commonwealth will notify Mr. Hollenbach and counsel when this is scheduled for trial. That’s all we will be able to do in this matter today.

The next thing we find of record is a Motion by the appellee seeking dismissal of the charges listed at Criminal 85-31 through 85-46 and Criminal 85-56 and 85-57 for the Commonwealth’s alleged violation of Rule 1100, i.e., failure to try the accused within 120 days of the withdrawal of his guilty pleas.

A rule was issued upon the Commonwealth, and a hearing was scheduled for July 3, 1986, to determine whether appellee’s Motion to dismiss should be granted. No testimony was given at the hearing. Rather, argument by counsel was heard by the court on the single issue of “basically what occurred on the 27th of December, 1985”. It was the position of the Commonwealth that the pleas of guilty were still in effect, save for the charges lodged at Criminal 85-30 (see footnote 1, supra), inasmuch as “the Court never made any determination to determine whether the defendant’s withdrawal of his guilty plea was fair and just.” This requirement, urged the Commonwealth, exists in the Rules of Criminal Procedure and was not complied with by the court at the December 27th proceeding. In support of its contention, the Commonwealth cited Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). Further, it was asserted by the Commonwealth’s attorney that no order granting the appellee’s withdrawal of his pleas having ever been issued, when viewed in conjunction with the “vague and often confusing” December 27th proceeding, justified a denial of the appellee’s Motion.

In response, counsel for the appellee argued that the December 27th proceeding dealt with the withdrawal of all of the complaints and criminal information numbers and was not restricted to Criminal 85-30. Albeit there was one guilty plea entered, “that plea was on all counts”, and the appellee’s efforts to inform the court that the pleas to all criminal informations were sought to be withdrawn is evidenced from a reading of the transcript of the December 27th proceeding, so stated the appellee’s counsel.

Also, the appellee’s counsel urged that, although a presentence investigation report was completed, the Commonwealth never made any effort to sentence the appellee. “Therefore, [with] the Commonwealth[’s] fail[ure] to file the necessary petitions for extension of time or to bring the defendant to trial in CR 85-31 and the following CR numbers, ... these ... cases docketed to these CR numbers should be dismissed.”

By opinion and order dated August 1, 1986, the court below found that, “based on a reading of the transcript of sentencing, ... the Defendant withdrew his guilty pleas to all cases. * * * Since the Defendant was not brought to trial within 120 days of December 27, 1985, the date that he withdrew his guilty pleas, Defendant’s Rule 1100 rights hav[ing] been violated”, he was entitled to a dismissal of the offenses listed at Criminal 85-31 through 85-46 and Criminal 85-56 and 85-57. A timely appeal was filed with this Court, and, thereafter, en banc consideration was granted to resolve the central issue of whether the appellee’s guilty pleas were properly withdrawn in accordance with accepted practice in this jurisdiction.

We begin our discussion with scrutinizing what appears to be the seminal case on the subject of withdrawal of one’s guilty plea(s) in Pennsylvania, Commonwealth v. Forbes, supra. In Forbes, the defendant had been charged with various offenses stemming from the death of one Sonia Rosenbaum. The sixteen-year-old defendant pleaded guilty to the charges brought against him. However, before a three-judge panel assembled to determine whether the case might constitute murder in the first degree, the defendant stated he desired to withdraw his pleas because he did not commit the crimes charged. The matter was continued so that a hearing on the defendant’s withdrawal request could be held. At the time assigned for such a proceeding, the defendant changed his mind and decided not to pursue his withdrawal request. After the three-judge panel was reconvened, and despite evidence that the defendant was pleading because of his counsel’s threat to withdraw from the case, the pleas of the defendant were allowed to stand, and a first degree murder conviction and life sentence followed.

An appeal was filed by the defendant claiming trial court error in its failing to grant his withdrawal request — made prior to any evidence being offered at the degree of guilt hearing and, thus, prior to adjudication and imposition of sentence.

The Supreme Court agreed with the defendant’s contention that counsel’s threat to withdraw from the case if he did not plead guilty rendered the pleas involuntarily and unintelligently entered and subject to withdrawal. In the course of its ruling, the Forbes Court made remarks which we find to be germane to the case at bar; to-wit:

Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing — here, that request was made at even an earlier stage — should be liberally allowed. See United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir.1972); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Stayton, 408 F.2d 559 (3d Cir.1969); Pa.R.Crim.P. 320; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft, 1968); Note, Pre-Sentence Withdrawal of Guilty Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). In United States ex rel. Culbreath v. Rundle, supra, the Third Circuit stated:
“It has been recognized under Pennsylvania and Federal law that a trial judge has discretion to refuse a request to retract a plea of guilty since there is no absolute right to withdraw such a plea. However, a request made before sentencing has been generally construed liberally in favor of the accused."
Id. at 732 of 466 F.2d (emphasis added) (footnotes omitted).
The ABA Standards are in complete harmony with this view. The standards state:
“(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.”
ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968). See also Commonwealth v. Neely, 449 Pa. 3, 4, 295 A.2d 75, 76 (1972) (Roberts, J., concurring opinion).
Thus, in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, “the test to be applied by the trial courts is fairness and justice.” United States v. Stayton, supra at 561. If the trial court finds “any fair and just reason”, withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been “substantially prejudiced.” ABA Standards Relating to Pleas of Guilty, supra. As the Third Circuit noted:
“The liberal rule for withdrawal of a guilty plea before sentence is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the ‘knowing and voluntariness’ of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right by trial by jury unless he clearly waives it.”
United States v. Young, 424 F.2d 1276, 1279 (3d Cir.1970).

450 Pa. at 190-91, 299 A.2d at 271-72 (Emphasis in original).

What is to be garnered from Forbes is the endorsement of a test condoning the liberal withdrawal of a plea of guilty prior to the imposition of sentence, provided, however, it is preceded by the presentment of “any fair and just reason” and the prosecution is not “substantially prejudiced” as a result of the withdrawal. This conclusion has been reaffirmed recently by our Supreme Court in Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), wherein the viability of the “fair and just reason” test and its role in the analysis of a challenge to a plea were discussed.

In Anthony, the Court held, based on a totality of the circumstances test, that the defendant had knowingly, intelligently and voluntarily pleaded guilty to charges of murder and robbery despite the trial court’s failure to advise him, during an extensive colloquy, that a jury verdict must be unanimous. More importantly, as is herein relevant, the Court responded to the defendant’s complaint that the trial court abused its discretion in denying him permission to withdraw his guilty pleas. In the course of finding the claim meritless, Justice McDermott wrote:

The standard that must be employed when reviewing this claim is whether a defendant has demonstrated a “fair and just reason” for the withdrawal request. Commonwealth v. Forbes, [supra]. Even if a viable reason is advanced for withdrawal, it is allowed only if the Commonwealth has not been substantially prejudiced by reliance on the plea. Commonwealth v. Forbes, supra.

504 Pa. at 561 & n. 6, 475 A.2d at 1309 & n. 6. Accord Commonwealth v. Kay, 330 Pa.Super. 89, 94 n. 3, 478 A.2d 1366, 1369 n. 3 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985).

As is evident from the remarks of the Anthony Court on the issue of the withdrawal of a guilty plea, such a request “is allowed only if the Commonwealth has not been substantially prejudiced by reliance on the plea.” 504 Pa. at 561 n. 6, 475 A.2d at 1309 n. 6 (Emphasis added).

Instantly, not only do we have the absence of any determination by the trial court as to whether the Commonwealth has been “substantially prejudiced” by the withdrawal of the plea, we have a failure to adhere to the Forbes requirement — the initial prong in the test assessing the withdrawal of a plea — that a “fair and just reason” precede the allowance of a plea withdrawal before inquiry into the “substantial prejudice” to the Commonwealth need be made. Neither requirement under Forbes having been met at bar, we can find no support in the record for the trial court’s factual determination that “the Defendant withdrew his guilty pleas.” Cf. Commonwealth v. Iannaccio, 304 Pa.Super. 307, 314-15, 450 A.2d 694, 698 (1982), cert. denied sub nom. Iannaccio v. Pennsylvania, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) (appellate court is not bound by factual determination made by court below which is wholly lacking support in the record).

To remedy the shortcomings sub judice and to establish a compliance with the dictates in Forbes, we deem it prudent to remand the matter at hand to afford the appellee the opportunity to proffer some “fair and just reason” warranting a withdrawal of his plea. If the court below so finds, then, in accordance with Forbes, the withdrawal may be granted unless the prosecution has been “substantially prejudiced.”

Given our finding that the non-compliance with the two-pronged test of Forbes undermines the determination of the court below that the appellee (“properly”) withdrew his guilty pleas, it necessarily follows that the conclusion by the same court that the Commonwealth’s failure to seek a continuance to avoid the running of the 120-day time limit under Rule 1100(e)(1), for the prosecution of the accused, need not be scrutinized. This is so because error in the withdrawal of the pleas dispenses with the need to inquire into the subsequent conduct of the Commonwealth in failing to seek compliance with the time strictures of Rule 1100(e)(1).

Order reversed and case remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

KELLY, J., files a dissenting opinion in which BECK, J., joins in Parts I & II.

WIEAND, Judge,

dissenting:

I respectfully dissent. A review of the record in this case reveals unequivocally the following four facts: (1) Charles A. Hollenbach, on December 27, 1985, was permitted to withdraw a plea of guilty to informations charging him with burglary and related offenses; (2) the representative of the Commonwealth did not object to the withdrawal of Hollenbach’s plea and agreed that Hollenbach would be scheduled for trial within one hundred twenty days thereafter; (3) the Commonwealth did not try Hollenbach within one hundred twenty days thereafter as required by Pa.R.Crim.P. 1100(e)(1); and (4) the Commonwealth has failed to show excludable time or, indeed, offer any excuse for its failure to bring Hollenbach to trial within the required one hundred twenty days.

In order to reverse and remand for trial on the charges, the majority concludes that Hollenbach’s withdrawal of his guilty plea was improperly allowed by the trial court, which failed to determine whether a fair and just reason existed for allowing the plea to be withdrawn. This conclusion is reached despite the fact that the Commonwealth did not object to the withdrawal of the plea or offer any reason why it might be prejudiced thereby. The Commonwealth did not at any time challenge the withdrawal of the guilty plea until it was faced with a petition to dismiss for violation of Rule 1100, filed approximately five months after the trial court had allowed Hollenbach to withdraw the plea. I would hold that the Commonwealth, by failing to object at the time the plea was withdrawn, waived any challenge which it might have had to the withdrawal of the defendant’s guilty pleas.

Although I share the majority’s distaste for the dismissal of serious criminal charges on the basis that Rule 1100 has been violated, it seems clear that the rule was violated in this case. The trial court recognized this and courageously dismissed the charges. That the judges of this Court would disapprove of the result required by Rule 1100 in this case is understandable. Unless or until the rule is repealed by the Supreme Court, however, our duty is to enforce it. I would affirm the trial court’s order dismissing the charges against Hollenbach.

KELLY, Judge,

dissenting:

I respectfully dissent. I fully agree with the majority that the withdrawal of a guilty plea should not have been granted without a demonstration of a fair and just reason for the withdrawal nor without an inquiry into whether the Commonwealth would be prejudiced by the withdrawal of the plea. However, I nonetheless find that the Commonwealth waived any challenge to the withdrawal of the plea by failing to make any objection at the time the plea was withdrawn. Because I dissent, I address each of the Commonwealth’s contentions on appeal.

FACTS AND PROCEDURE

In December of 1984, appellee, Charles Hollenbach, was arrested and charged with more than sixty-four counts of burglary, theft and related offenses. In July of 1985, appellant entered a guilty plea to all counts. A pre-sentence investigation report was made and sentencing was scheduled for December 27, 1985. On that date, however, appellant withdrew his guilty plea.

Sometime thereafter, presumably within the 120-day period mandated by Pa.R.Crim.P. 1100, the Commonwealth filed a petition for extension of time pursuant to Pa.R.Crim.P. 1100(c) with regard to the charges docketed at CR-85-30. Inexplicably, no petition for extension was filed with regard to the charges at the other docket numbers, which are the subject of the instant appeal.

On May 30, 1986, the appellee filed a motion pursuant to Rule 1100 to dismiss the charges docketed at CR numbers 85-31 to 5-46, 85-56, and 85-57. A hearing was held on July 3, 1986. Although the Commonwealth requested and was granted permission to submit a post-hearing brief to the trial court (N.T. 7/3/86 at 6), none appears in the record certified to this Court on appeal. On August 1, 1986, the trial court entered an order and opinion granting appellee’s motion to dismiss. Timely notice of appeal was filed by the Commonwealth.

On appeal, the Commonwealth contends, alternatively, that either: 1) appellee’s original guilty plea was never properly withdrawn as to the charges listed at the above docket numbers, and therefore, the 120-day Rule 1100 period never commenced; or, 2) if the guilty plea was properly withdrawn as to the charges at the above docket numbers, then the Commonwealth’s petition for extension of time under Pa.R.Crim.P. 1100(c) should have been construed to apply to the charges at the above docket numbers. Upon review of the record, the briefs of the parties, and the opinion of the trial court, I find that neither contention has been properly preserved for appeal by the Commonwealth.

I.

The Commonwealth first contends that appellee’s guilty plea was never properly withdrawn, and therefore, the Rule 1100 period never commenced. Appellant argues that: 1) no written petition to withdraw the guilty plea was filed; 2) only the charges at CR number 85-30 were called, therefore only the plea to charges at that docket number could properly be withdrawn; 3) the trial court did not conduct a hearing as to whether appellee had a fair and just reason to withdraw the plea; 4) the trial court made no definite order granting withdrawal of the plea; 5) no order granting withdrawal of the plea was ever docketed; and finally, 6) the record is unclear with respect to the issue of withdrawal of the guilty pleas, and therefore, no run date was reasonably ascertainable. (See Commonwealth’s Brief at 6-7).

A.

The Commonwealth’s assertions of confusion notwithstanding, I find that the record fully sustains the trial court’s conclusion that appellant had requested to withdraw his plea as to “all counts” at each of the docket numbers. The transcript states in pertinent part:

MR. ROSINI: Now, it is my understanding that at this time that Mr. Hollenbach is present to withdraw his plea of guilty and to be scheduled for trial. He is present in court with his attorney Ann Targonski for the purpose of withdrawing his plea.
THE COURT: There is more than just 85-30, there is 85-j5, and they go up.
MS. TARGONSKI: Your Honor, it goes 31, 32, 33, 34, 35, 36, 37, through—
THE COURT: On the sentencing scheduled for today we are going to have a withdrawal of the guilty plea.
MS. TARGONSKI: On all counts.
THE COURT: On all counts.

(N.T. 12/27/85 at 2-3). (Emphasis added).

It is equally clear from the record of the hearing that the motion to withdraw the guilty plea was granted.

THE COURT: ... Let me just get this record straight. Mr. Hollenbach on the 5th of July, 1985, you entered a guilty plea, your age is 22, you have had a tenth grade education, and, you must have worked at some kind of work. What kind of work did you do?
THE DEFENDANT: I work for mentally retarded patients.
THE COURT: Well, the purpose Chuck, is so that the record reflects that on the 5th of July, 1985 you entered a guilty plea. Someone of your age, of your education, of your work experience, now wishes to withdraw his guilty plea, and wants to go to trial in this matter, these matters. Is that what you want to do today, withdraw your guilty plea?
THE DEFENDANT: Yes.
THE COURT: Now, Mr. Rosini, you might want to say something for the Commonwealth on when this is going to be rescheduled.
MR. ROSINI: Your Honor, whether it can be scheduled in January the Commonwealth would have 120 days to bring the Defendant to trial after his plea. He will be scheduled at the next available opportunity to try the defendant.
THE COURT: Well, I know that there were about 12 sentences that I was going to recite but, with the withdrawal of the guilty plea we’ll mark the matter continued and the Commonwealth will notify Mr. Hollenbach and counsel when this is scheduled for trial. That’s all we will be able to do in this matter today.

(N.T. 12/27/85 at 2-3). (Emphasis added). The foregoing clearly reveals awareness on the part of the Commonwealth that the motion to withdraw the plea had been granted and that a trial was to be scheduled; by acknowledging a new 120-day period in which to bring appellant to trial the Commonwealth implicitly acknowledged the fact that the plea had been withdrawn. See Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982) (when a guilty plea is withdrawn, a new 120-day period in which to bring defendant to trial commences). The awareness of the Commonwealth that the plea had been withdrawn is also demonstrated by the failure of the Commonwealth during or after that hearing to move for sentencing on the portion of the prior plea it alleges was still in force, despite the fact that the presentence investigation had been completed prior to the December 27, 1985 hearing.

B.

The record does confirm, however, that appellee did not file a written petition to withdraw his plea, no order granting the motion was ever entered on the docket, and the trial court did not require appellee to articulate fair and just reasons in support of his motion to withdraw his plea or inquire as to the possibility of prejudice to the Commonwealth if the plea were withdrawn. We must, then, consider the legal significance of these facts.

1.

The absence of a written motion for withdrawal of the guilty plea has no effect whatsoever on the validity of the plea withdrawal. Pursuant to Pa.R.Crim.P. 320, “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” Clearly, the use of the phrase “permit or direct” vests the trial court with authority to direct withdrawal of the plea sua sponte. Thus, when the trial court discovers, in a pre-sentence investigation report, assertions by the defendant which give the court reason to doubt the voluntary, knowing, and intelligent nature of a prior guilty plea (or its equivalent, a nolo contendere plea), the court may in its discretion direct the plea to be withdrawn, whether or not a written motion to withdraw the plea has been filed by the defendant. Cf. Commonwealth v. Mascitti, 368 Pa.Super. 454, 459, 534 A.2d 524, 526-27 (1987) (trial court may in its sound discretion sua sponte reconsider, reject plea agreement, and permit defendant to withdraw his plea when defendant asserted his innocence to the pre-sentence report investigator; construing Pa.R.Crim.P. 319); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982) (although no motion to withdraw the guilty plea was filed, trial court withdrew plea for defendant where defendant denied his guilt when interviewed by pre-sentence report, investigator).

Moreover, although a written motion may certainly be filed in support of a defense request that the court exercise its discretion to permit pre-trial withdrawal of a plea pursuant to Pa.R.Crim.P. 320, the rule itself does not require the filing of a written petition. The significance of the absence of express language requiring a written petition in Pa.R. Crim.P. 320 is amplified by the existence of such language in Pa.R.Crim.P. 321(a) which states, “[a] motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.” (Emphasis added). A written motion is simply not a prerequisite to the proper exercise of the court’s discretionary authority to permit or direct the withdrawal of a guilty plea pursuant to Pa.R.Crim.P. 320. Cf. Commonwealth v. Whittall, supra, 304 Pa.Superior Ct. 258, 265, 450 A.2d 669, 673 (1982) (“[i]t would elevate form over substance to hold that appellee was still bound by his plea merely because he failed to file a written withdrawal petition”). I note that appellant did move to withdraw his plea in an oral motion on the record in open court. See Pa.R.Crim.P. 9020 (all motions must be written except, inter alia, when made in open court during a trial or hearing); cf. Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984) (oral statements on the record in open court constitute a contemporaneous written statement pursuant to 42 Pa.C.S.A. § 9721(b)).

2.

I place no significance whatsoever on the fact that no order granting the motion to withdraw the guilty plea was entered on the trial court’s docket. The Commonwealth has not cited, and I do not find, any authority for the proposition that an interlocutory order or ruling made in the presence of the parties on the record in open court in a criminal case must be formalized by an order entered on the court docket in order to have effect. To the contrary, docket entries in such cases merely memorialize the prior completed act.

3.

The Commonwealth also argues on appeal that there could be no valid withdrawal of the guilty plea because appellee established no fair or just basis upon which withdrawal of the plea could be granted. Undeniably, the law requires the statement of a fair and just reason before a trial court may properly permit withdrawal of a guilty plea prior to sentence; moreover, even when such a reason is established withdrawal may not be permitted if the Commonwealth would be substantially prejudiced. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984); Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973); Commonwealth v. Dorian, 314 Pa.Super. 244, 248, 460 A.2d 1121, 1123 (1983), aff'd 503 Pa. 116, 468 A.2d 1091 (1983). I agree that the trial court erred in failing to state, or require appellant to state, a fair and just reason for withdrawing the plea and in failing to determine whether the Commonwealth would be prejudiced by withdrawal of the plea.

Nonetheless, when the Commonwealth stands by silently while the court exercises its discretion in open court to grant the motion, thereafter acknowledges the grant of the motion by filing a petition for an extension of time in which to bring appellant to trial, and does not voice objections to the grant of the motion until it is faced with dismissal of the charges inexplicably omitted from its timely Pa.R.Crim.P. 1100(c) petition, I can reach no other conclusion but that long-settled principles of waiver preclude the Commonwealth from raising belated challenges to the court’s exercise of its discretion under Pa.R.Crim.P. 320. I cannot agree with the implicit assumption of the majority that the trial court’s procedural errors in granting the plea withdrawal rendered the plea withdrawal void ab initio, or that the errors were such that they could not be waived by the Commonwealth. Rather, I find the defects in the plea withdrawal proceedings to have been waived by the Commonwealth’s silent acquiescence to the withdrawal of the plea on December 27, 1985.

II.

The Commonwealth’s second contention is that the timely petition for extension of time in which to bring appellee to trial on the charges docketed at CR-85-30 should have been treated as applying to all of the charges at each of the docket numbers, as all the charges had previously been treated as a unit. The Commonwealth notes that there had been one guilty plea originally entered, one pre-sentence report ordered, and one motion to withdraw the guilty plea. The Commonwealth then reasons:

To bind the Commonwealth to its petition relative only to those cases reflected in the caption and not to bind Defendant to withdrawal of a guilty plea to only those cases reflected in the caption of the hearing of 27 December 1985, would serve only the technical requirements of the law.

(Commonwealth’s Brief at 8-9). The majority do not reach this contention. Although the Commonwealth’s argument on appeal is persuasive and logical, I would find that it too was waived.

At the hearing on December 27, 1985, both the court and counsel for appellee indicated that the plea withdrawal was to apply to all of the charges at each of the docket numbers. (N.T. 12/27/85 at 1). At the hearing on appellee’s Rule 1100 motion on July 3, 1986, the Commonwealth argued steadfastly that no proper plea withdrawal had been made, but that if any plea had been withdrawn it could only be the plea to the charges docketed at CR-85-30. (N.T. 7/3/87 at 2-5). Nowhere in the record certified to this Court on appeal is there the slightest indication that the Commonwealth sought to have the trial court apply the timely Rule 1100(c) petition to the remaining charges. It is axiomatic that appellate courts will not consider issues or theories not posited or argued by appellant in the court below. See Commonwealth v. Johnson, 355 Pa.Super. 123, 140-41, 512 A.2d 1242, 1251 (1986), citing Commonwealth v. Hughes, 480 Pa. 311, 389 A.2d 1081 (1978) and Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). Consequently, I would deem the Commonwealth’s second contention waived.

III.

The trial court’s opinion concludes:
It is not the practice of this Court to dismiss criminal charges based on mere technical violations. However, the Defendant’s right to a speedy trial is guaranteed by the Constitution. As such, that right must be protected. In the case at bar, any doubt must be resolved in favor of the Defendant. Since the Defendant was not brought to trial within 120 days of December 27, 1985, the date that he withdrew his guilty pleas, Defendant’s Rule 1100 rights have been violated.

(Trial Ct. Op. at 2). (Emphasis added). Theoretically, Rule 1100 merely protects a defendant’s right to a speedy trial; procedural rules, are not intended to create new and separate rights unto themselves. Pa. Const. Art. V, sec. 10; Commonwealth v. Fowler, 451 Pa. 505, 510-12 & n. 6, 304 A.2d 124, 127-28 & n. 6 (1973). Nonetheless, in the instant case the rule achieved such results.

Discharge in the instant case was not predicated upon a violation of appellant’s speedy trial rights, but upon a violation of Rule 1100. The trial court did not consider whether the length of the delay, the reason for the delay, the occurrence and timing of an assertion of speedy trial rights by the defendant, and the prejudice to the defendant caused by the delay in this case mandated discharge. Cf. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The trial court did not require appellee to establish a constitutional violation based upon a presumption arising from the expiration of the Rule 1100 period, nor was the Commonwealth permitted to establish the absence of a constitutional violation. Rather, the trial court held that discharge was required in the instant case because the Commonwealth by error, neglect, confusion, or a combination thereof failed to file a timely motion pursuant to Pa.R.Crim.P. 1100(c) as to those charges.

In Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979) (per Nix, then J.; Roberts and Manderino, JJ., join; Egan, C.J., and Larsen, J., dissent), our Supreme Court stated:

... a request for an extension under section (c) must be made prior to the expiration of the prescribed period under the Rule. Thus, even if this record might have met the requirements for the grant of such an exten sion, the avenue is not here available to the Commonwealth since it failed to attempt this course prior to [the expiration of the period for commencement of trial].

398 A.2d at 976 (emphasis added); see also Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986). Thus, under the clear directive of Commonwealth v. Morgan, supra, the trial court was required to discharge appellee based upon the Commonwealth’s error, despite the apparent absence of a constitutional speedy trial violation (as indicated by the fact that a timely Rule 1100(c) motion for an extension of time was granted as to the charges docketed at CR-85-30 which had previously been treated together with the instant charges as a unit at the original guilty plea, for the pre-sentence report, and for the plea withdrawal).

Though I would agree that Morgan mandated discharge in this case, I would strenuously urge reconsideration of Morgan by our Supreme Court. The Morgan decision in 1979 represents the high water mark for our Supreme Court’s reliance upon technical enforcement of the Rule 1100 bright-line approach. The shift away from technical enforcement which has occurred since 1979 was explained by our Supreme Court in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983), as follows:

Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice.

466 A.2d at 1014. See also Commonwealth v. Wells, 513 Pa. 463, 521 A.2d 1388 (1987); Commonwealth v. Knupp, 512 Pa. 614, 518 A.2d 252 (1986); Commonwealth v. Koonce, 511 Pa. 452, 515 A.2d 543 (1986); Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984); Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1980). Finally, on December 31, 1987, Pa.R.Crim.P. 1100 was substantially amended, specifically deleting the procedure whereby the Commonwealth was required to file a timely petition for an extension. Pa.R.Crim.P. 1100 (as amended December 31, 1987, effective immediately). The new rule eliminates the risk of discharge as the result of untimely or defective extension petitions in future cases; those amendments came too late, however, to affect this case.

I would submit that the rule in Morgan leads to an inappropriate result in this case, a result which is directly at odds with the reasoning expressed in the more recent Rule 1100 cases cited above. If this Court were free to reject Morgan, I would not hesitate to join the majority in reversing appellee’s discharge. Nonetheless, I am unwilling to ignore the Commonwealth’s waiver of defects in the plea withdrawal, and am unable to escape the clear mandate of Commonwealth v. Morgan, supra. Thus, I reluctantly dissent.

BECK. J., joins Parts I & II.

      . We note that, although not of record, the briefs of the parties indicate that the offenses appearing at Criminal 85-30 were listed by the Commonwealth for trial. (See Appellee’s Brief at 7; Appellant’s Brief at 8) However, disposition of the same is not mentioned nor is it relevant to our resolution of the case at bar.

      . See Pa.R.Crim.P. 320 and Comment to Pa.R.Crim.P. 321, wherein the Standards Relating to Pleas of Guilty § 2.1(a)(ii), A.B.A. PROJECT ON STANDARDS FOR CRIMINAL JUSTICE is referred to, and upon reading recommends at § 2.1(b) that:
      Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.
      (Emphasis added).

       Because appellant has failed to satisfy the "fair and just” standard, there is no need to reach the issue of whether the Commonwealth has been prejudiced in its reliance on the plea.

      . Rule 1100(e)(1) reads:
      When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.

      . Now Pa.R.Crim.P. 1100(d)(1) following amendment of Rule 1100 by the Supreme Court on December 31, 1987.

      . Had the Commonwealth timely objected to or timely appealed from the trial court’s allowance of the withdrawal of Hollenbach’s guilty plea, I would have no trouble finding that the trial court abused its discretion by allowing the withdrawal. Cf. Commonwealth v. Mosley, 283 Pa.Super. 28, 32, 423 A.2d 427, 429 (1980) (following Commonwealth appeal from the withdrawal of a guilty plea this Court found "that the court below abused its discretion in permitting the withdrawal of the plea without ‘fair and just’ reasons.”). This issue has, however, been waived by the Commonwealth’s failure to timely raise it.

      . On May 30, 1987, appellant re-entered a guilty plea to the charges pending at that docket number. The final disposition of those charges is not reflected in the briefs of the parties or in the record before this Court.

      . Both the Commonwealth’s and appellee’s briefs indicate the motion was filed March 30, 1986; the docket and the time stamped motion itself are dated May 30, 1986. (Commonwealth's Brief at 4, Appellee’s Brief at 1). The difference is noteworthy in that, assuming a valid plea withdrawal December 27, 1985, the new 120-day period to bring appellee to trial would not have expired until April 25, 1986 (after March 30, 1986 but before May 30, 1986). The May 30, 1986 date on the docket and time stamped motion, of course, controls.

      . Under the new rule, when an accused is incarcerated, he must be brought to trial within 180 days; upon expiration of the 180 day run-date, the accused is entitled to immediate release on nominal bail. An accused who is released on bail must be tried within 365 days; upon expiration of the 365 day run-date the accused may petition for discharge with prejudice. The automatic exclusions from the running of the time limits formerly included in Pa.R.Crim.P. 1100(d) have been retained verbatim in new Pa.R.Crim.P. 1100(c).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    544 A.2d 482
    Joseph TALUTTO v. Bertha TALUTTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1988.
    Filed June 27, 1988.

      John P. Bogdanovicz, Scranton, for appellant.

      Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is a timely appeal by defendant Bertha Talutto of a final Order, dated August 3, 1987, granting the parties a divorce pursuant to section 201(c) of the Divorce Code, 23 P.S. § 201(c), providing for equitable distribution of the marital property, and awarding $100 per month alimony to appellant/wife for an indefinite period of time. On appeal, appellant contests the trial court’s distribution of marital property and alimony award.

The parties were married on November 27, 1941. During the course of their marriage they had four children, all of whom are adult individuals. The parties separated sometime in December, 1982. Appellee Joseph Talutto filed a complaint in divorce on February 16, 1984 alleging grounds for divorce pursuant to 23 P.S. §§ 201(c) and 201(a)(6) of the Divorce Code, 23 P.S. § 101 et seq. An amended complaint was filed on November 28, 1984 alleging additional grounds for divorce pursuant to 23 P.S. § 201(d). On March 20, 1985, a hearing was held before a master, resulting in the master’s report and recommendations filed that day. Timely exceptions to the master’s report and recommendations were filed by appellee on May 28, 1987, resulting in the August 3, 1987 Order from which appellant has filed the instant appeal.

Appellee was born on September 9, 1920 and was sixty-six years old at the time of the hearing. He retired due to a disability in 1973 from the Erie & Lackawanna Railroad after working there for thirty-four years. The trial court and master found appellee's sole source of income to be his benefits received under the Railroad Retirement Act of 1974 (hereinafter “the Act”), 45 U.S.C. § 231 et seq., amounting to $8,640 annually.

Appellant was born December 29, 1924 and was sixty-two years old at the time of the hearing. She too is unable to work due to a disability. The trial court and master found appellee’s annual income to consist of $2,724 from Social Security disability payments and $1,800 from appellant as spousal support, for a total of $4,524.

The marital estate is relatively small. Although the trial court adopted the master’s recommendation that appellant receive all of the marital household furnishings, which are of inconsequential value, the trial court rejected the master’s recommendation with respect to appellee’s railroad benefits. The master recommended appellant receive a twenty percent interest in appellee’s railroad retirement benefits until such time that she receives benefits in her own right through the railroad retirement pension, at that time her interest in appellee’s benefits would be diminished by fifty percent of the amount she actually received. Thus, the master treated the appellant’s railroad retirement benefits as marital property subject to equitable distribution. Upon review of appellee’s exceptions, the trial court concluded that appellee’s benefits should not be considered marital property and, therefore, did not subject them to equitable distribution. Additionaly, the master and trial court did not include as marital property certain cash and real estate derived therefrom which was received by appellant from her mother’s estate as an inheritance.

On appeal appellant raises two issues, both concerning the application of the Railroad Retirement Act of 1974, supra. First, appellant claims the trial court erred in finding that federal law prevents distribution of appellee’s railroad retirement pension as marital property. Second, appellant claims that in awarding her alimony the trial court failed to consider the possible adverse effects 45 U.S.C. § 231c(i), dealing with reductions in survivors’ annuities, may have on appellant’s future income.

On the question of equitable distribution, appellant argues that the 1983 amendment to 45 U.S.C. § 231m of the Act allows federal railroad retirement benefits to be considered marital property and subject to distribution through any court decree of divorce. Section 231m provides:

§ 231m. Assignability; exemption from levy
(a) Except as provided in subsection (b) of this section and the Internal Revenue Code of 1954 [26 U.S.C. § 1 et seq.\ notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated^]
(b) (1) This section shall not operate to exclude the amount of any supplemental annuity paid to an individual under section 2(b) of this Act [45 U.S.C. § 231a(b)] from income taxable pursuant to the Federal income tax provisions of the Internal Revenue Code of 1954 [26 U.S.C. § 1 et seq.\
(2) The section shall not operate to prohibit the characterization or treatment of that portion of any annuity under this Act which is not computed under section 3(a), 4(a), or 4(f) of this Act [45 U.S.C. §§ 281b(a), 231c(a) or (f) ], or any portion of a supplemental annuity under this act, as community property for the purposes of, or property subject to, distribution in accordance with a court decree of divorce, annulment, or legal separation or the terms of any court-approved property settlement incident to any such court decree. The Board shall make payments of such portions in accordance with any such characterization or treatment or any such decree or settlement.

Essentially, subsections (a) and (b)(1) embody the former language of § 231m with slight modification. It is only subsection (b)(2) which was added by the 1983 amendment to the Act.

In 1979, prior to the addition of § 231m(b)(2), the United States Supreme Court in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), examined § 231m and held the Act preempted the field of railroad retirement benefits and that such benefits were not subject to division by a state court as property upon divorce. See Padezanin v. Padezanin, 341 Pa.Super. 26, 28, 491 A.3d 130, 131 (1985). Hisquierdo turned on application of the supremacy clause of the United States Constitution, Art. VI, cl. 2, and whether a court award of railroad retirement benefits in a divorce proceeding does injury to the federal interests Congress intended to protect with the Act. The Act’s scheme provides for two “tiers” of benefits which resemble both a private pension program and a social welfare plan. The lower or first tier of benefits are equivalent to those the employee would receive if covered by the Social Security Act, 42 U.S.C. § 401 et seq. See 45 U.S.C. § 231a(a)(1) and § 231b(a)(1). The upper or second tier of benefits are supplemental annuities which, like a private pension plan, are tied to earnings and career service. See 45 U.S.C. § 231a(b) and § 231b(e). Compulsory federal taxes on both the employees and carriers finance the Act’s benefits.

In concluding that § 231m prohibited divorce proceedings under state law from depriving railroad workers of even a portion of their benefits, the Supreme Court in Hisquierdo looked to the objectives of the federal program and the role § 231m plays in preserving the statutory scheme. The Act’s objective is to encourage older workers to retire by providing them a sound pension system and, with such retirements, promote advancement and create jobs in the industry for younger workers. Id. 439 U.S. at 573, 99 S.Ct. at 804, 59 L.Ed.2d at 6. Section 231m, as an anti-attachment provision, acts as a shield ensuring that the benefits actually reach the beneficiary when old-age or disability ensues and helps encourage employees to retire. Id. at 585, 99 S.Ct. at 810, 59 L.Ed.2d at 13. Additionally, because Congress has reserved the right to alter or eliminate benefits, id. at 575, n. 6, 99 S.Ct. at 805, n. 6, 59 L.Ed.2d at 7, n. 6, property settlements based on mere expectations would tend to frustrate the congressional purpose behind the Act. Id. at 589, 99 S.Ct. at 812, 59 L.Ed.2d at 16. Section 231m’s language that payments are not to be “anticipated” allows Congress the freedom to make future amendments to the Act without harming recipients and without impairing its regulatory role of the industry. Id.

Interpretation of the 1983 amendment to § 231m is a case of first impression in Pennsylvania. Although, we referred to the amendment in Padezanin, supra, we merely instructed the trial court on remand to consider its effect without further comment.

With § 231m(b)(2) Congress has opened, in a limited way, the anti-attachment prohibition § 231m was found to have in Hisquierdo. Subsection (b)(2) expressly permits characterization of certain components of the benefits as “community property ... or property subject to, distribution in accordance with a court decree of divorce ... or the terms of any court-approved property settlement incident to any such court decree.” 45 U.S.C. § 231m(b)(2); see Belt v. Belt, 398 N.W.2d 737, 739 (N.D.1987); Kamel v. Kamel, 721 S.W.2d 450, 453 (Tex.App.—Tyler 1986). However, § 231m(b)(2) specifically excludes components “computed under section 3(a), 4(a), or 4(f) of [the] Act [45 U.S.C. §§ 231b(a), 231c(a) or (f) ].” 45 U.S.C. § 231m(b)(2). Appellant’s brief fails to discuss this exclusionary clause and gives no argument on its application to the present case. After examining the record and the Act, we agree with the trial court that § 231m(b)(2) does not apply because of the exclusionary clause.

The first excluded section of the Act is 45 U.S.C. § 231b(a), which provides for the method of computation of annuities under 45 U.S.C. § 231a(a)(l). Section 231a(a)(l) describes annuity eligibility requirements for first tier benefits. A review of the record discloses that appellee’s disability benefits fall within § 231a(a)(l)(v), for individuals permanently disabled. Therefore, appellee’s benefits are specifically excluded from § 231m(b)(2)’s allowance for division of benefits as property upon divorce and the trial court acted properly in so determining.

In March, 1987, the Railroad Retirement Board established regulations under 20 C.F.R. § 295.1 et seq., setting forth a procedure by which the Board would recognize and honor a court Decree or property settlement involving benefits subject to distribution under 45 U.S.C. § 231m(b)(2). In its regulations the Board specifically enumerates those benefits subject to 45 U.S.C. § 231m(b)(2)’s characterization as property subject to distribution upon divorce as follows:

(b) Benefits subject to this part. Only the following benefits or portions of benefits under the Railroad Retirement Act are subject to this part:
(1) Employee annuity net tier II benefit component as provided under section 3(b) [45 U.S.C. § 231b(b)] of the Railroad Retirement Act;
(2) Employee annuity vested dual benefit component as provided under section 3(h) [45 U.S.C. § 231b(h) ] of the Act;
(3) Employee annuity net proportionate share of the annuity increases as provided under section 3(f) [45 U.S.C. § 231b(f) ] of the Act; and
(4) Supplemental annuities as provided under section 2(b) [45 U.S.C. § 231a(b)) of the Act.

20 C.F.R. § 295.1(b). Although appellee’s benefits do not fall within the enumerated benefits, we feel the Board’s listing should prove helpful in determining future awards.

We now turn to appellant’s second claim on appeal. Without citation to case law, appellant claims that in awarding her alimony the trial court failed to consider the possible adverse effects 45 U.S.C. § 231c(i), dealing with reduction in survivor’s annuities, may have on appellant’s future income. We disagree.

In reviewing an award of alimony, we must apply an abuse of discretion standard. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986); Pangallo v. Pangallo, 329 Pa.Super. 25, 477 A.2d 885 (1984); Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). In arriving at its alimony award the trial court gave the following reasons:

In the case sub judice, as noted previously, both parties have fixed incomes deriving from monthly disability payments. The Plaintiff receives $8,640.00 annually from his Railroad Retirement Pension. The Defendant presently claims income of $4,524.00 per year from Social Security and spousal support payments. The record notes, however, that the Defendant qualifies to receive a spousal annuity under the Railroad Retirement Act upon proper application for such. A qualified divorced spouse under the Railroad Retirement Act shall receive a monthly annuity based on, inter alia, a percentage of the railroad employee’s monthly annuity. (See: 45 U.S.C.A. § 231c). Therefore, upon consideration the factors contained in Sections 501(a) and (b) of the Pennsylvania Divorce Code [23 P.S. § 501(a) and (b) ] particularly noting the relative earnings and earning capacities, ages, physical conditions and sources of income of both parties, the Court shall award alimony to the Defendant in the amount of $100.00 per month for an indefinite period of time.

(Slip Op., Walsh, P.J., 8/3/87, p. 7). Contrary to appellant’s argument, the trial court did fix the actual income and earning capacities of both parties, who are both disabled. While the court did consider the possibility that appellant would be eligible for railroad retirement benefits in her own right, we do not believe this unduly overshadowed the trial court’s consideration of the fourteen factors listed in 23 P.S. § 501(b). The annual dollar earnings by each party are relatively close and this coupled with appellant sharing a house she jointly owns with the parties’ adult daughter leads us to find no abuse of discretion. The fact that 45 U.S.C. § 231c(i) may call for some reduction in appellant’s Social Security benefits to offset the annuity she may receive under the Act should not be reason to find an abuse of discretion when the offset is likely to keep appellant in the same economic position. Therefore, we find no abuse of discretion in the alimony award.

Order affirmed.

      . Act of Oct. 16, 1974, P.L. 93-445, Title I, § 101, 88 Stat. 1305, 45 U.S.C. § 231 et seq., generally amended Act of August 29, 1935, ch 812, §§ 1-14, 49 Stat. 967-973, formerly 45 U.S.C. §§ 215-228, and Act of June 24, 1937, ch. 382, 50 Stat. 307, formerly 45 U.S.C. § 228a et seq.,
        amended by Act of August 13, 1981, P.L. 97-35, Title XI, Subtitle D, § 1116, 95 Stat. 628, further amended by Act of August 12, 1983, P.L. 98-76, Title IV, §§ 402(a), 403(a), 410(a), 97 Stat. 434, 435.

        . The existing spousal support award was made pursuant to an action for spousal support filed by appellant in August, 1983, Court of Common Pleas of Lackawanna County, No. 82-DR-1411. The award consisted of $150 per month current support plus $50 per month to be applied to arrearages.

      . We note that appellee has failed to file a brief in this appeal.

      . Prior to the 1983 amendment to the Act § 231m provided as follows:
      § 231m. Assignability; exemption from levy
      Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated: Provided, however, That the provisions of this section shall not operate to exclude the amount of any supplemental annuity paid to an individual under section 2(b) of this Act [45 U.S.C. § 231a(b)] from income taxable pursuant to the Federal income tax provisions of the Internal Revenue Code of 1954 [26 U.S.C. § 1 et seq.].

      Act of Aug. 29, 1935, ch. 812, § 14, as amended Oct. 16, 1974, P.L. 93-445, Title I, § 101, 88 Stat. 1345.

      . We will refer to the various sections of the Act by their citations as found in the United States Code.


author: DEL SOLE, Judge:

text:
    544 A.2d 487
    BANTAM FOUR CINEMAS, INC., a Pennsylvania Corp., Appellant, v. George D. ZAMIAS and Marianna Zamias, His Wife, t/a Bel Air Plaza Associates, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1988.
    Filed June 20, 1988.

      Palmer T. Lawrence, Pittsburgh, for appellant.
    Martin A. Nadorlik, Johnstown, for appellees.
    Before McEWEN, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from the Order entered on April 20, 1987, in the Court of Common Pleas of Cambria County, Civil Division, granting Appellees’, George and Marianna Zamias’, t/a Bel Air Associates’, motion for summary judgment, and ordering Appellant, Bantam Four Cinemas, Inc., expelled from its leased premises. We reverse and remand for proceedings consistent with this opinion.

The instant case involves an action for declaratory judgment brought on April 11, 1986, by Appellant to determine its rights to stay on the premises at Bel Air Plaza, a shopping center operated by Appellee in Richland Township, Cambria County, Pennsylvania. Appellant and Appellee were lessee and lessor, respectively, for the premises which housed a four-plex movie exhibition theater under a Lease Agreement dated August 7, 1970, and running from March 1, 1974, to February 28, 1981. The lease in question also provided for two (2) option renewal periods, the first of which expired on February 28, 1986, and the second period scheduled to begin on March 1, 1986, and to expire on February 28, 1991.

Appellant filed its complaint on April 11, 1987, alleging that it made a timely and proper exercise of its option to renew the lease in question for the second and final option period. Appellant filed an amended complaint on April 18, 1986, to update the name of the owners of the premises to the new and present owners, George D. and Marianna Zamias.

On May 6, 1986, Appellees filed its answer and counterclaim, alleging that Appellant failed to exercise its final five (5) year option and that notice to quit was effectively served. In addition, Appellees requested that the trial court direct Appellant to vacate the premise.

On July 11, 1986, Appellees filed a motion for summary judgment. On September 25, 1986, the court en banc heard both Appellees’ motion for summary judgment and Appellant’s motion for declaratory judgment. In its Opinion and Order of April 9, 1987, and docketed on April 20, 1987, the court en banc granted Appellees’ motion for summary judgment and ordered Appellant expelled from its leased premises. The court denied Appellant’s motion.

On May 19, 1987, Appellant filed a timely appeal in the Commonwealth Court of Pennsylvania and an application for reconsideration with the Cambria County Common Pleas Court. On July 30, 1987, after petition by Appellant, the instant case which was erroneously filed in Commonwealth Court was properly transferred to this Court. On August 12, 1987, Appellant’s application for reconsideration was denied.

Appellant presents three issues for our review on appeal:

1. Whether the lower court abused its discretion in determining that there was no genuine issue of material fact remaining to be litigated in view of Appellant’s having given oral notice to renew its leases, Appellees’ acceptance of said notice, and finding that such events were a legal nullity and did not constitute effective and legal notice and acceptance of Appellant’s intent to renew its lease so as to result in oral modification of the parties’ written contract.
2. Whether the record considered in a light most favorable to Appellant justified the lower court’s imposition of summary judgment, as a matter of law, against Appellant when Appellee’s affidavit in support of their motion for summary judgment does not even address any of the allegations of Appellant’s original complaint nor is said affidavit sworn to as a matter of personal knowledge.
3. Whether the lower court abused its discretion in ascribing a “time is of the essence” condition to a contract not containing such provision and thereby proscribing equitable considerations in this case.

In the court’s determination of whether a motion for summary judgment should be granted, the following principles have application:

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Shader v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Bertain v. Beck, 330 Pa.Super. 248, 251-52, 479 A.2d 534, 535-36 (1984). See also, Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Instantly, we find this not to be the case.

In the case at bar, predecessors of both parties entered into an Agreement of Lease on August 7, 1970. The initial term was scheduled to begin on March 1, 1974, and expire on February 28, 1981. The lease also provided for two (2) five (5) year option periods, the first of which was set to begin on March 1, 1981, and end on February 28, 1986, and the second to begin on March 1, 1986, and end on February 28, 1991.

The instant dispute arose over the exercise of the last five (5) year option included in the lease in question. Article 3 of the lease states in pertinent part:

Each option shall be exercised by Lessee giving Lessor written notice by certified mail to the last known address of the Lessor of its intention so to do at least ninety (90) days prior to the expiration of the original term or the renewal term, as the case may be.

The record shows that Appellant did not file a written notice to exercise its last five (5) year renewal option according to the terms of the lease. The lease required Appellant to give written notice of its intent to renew to appellee by certified mail ninety (90) days before the expiration of the first five (5) year renewal option on February 28, 1986. In this case, no such written notice was sent by the deadline indicated in the lease. However, Appellant sent a mailgram to Appellees on January 10, 1986, in order to confirm an alleged July 1984 oral notice. Appellees responded by sending a Notice to Quit to Appellant on January 13, 1986.

In its Complaint, Appellant maintains that its representative, Donald Gawel, orally notified Appellees of its intention to renew the last five (5) year option. Appellant also maintains that said notice was orally accepted on behalf of Appellees according to practices established between the parties. (Appellant’s Amended Complaint, No. 6). Thus, Appellant asserts that Appellees were given “equivalent” timely notice of Appellant’s intention to exercise its option.

In their Answer, Appellees contend that no such oral notice was given by Appellant or received by Appellees. They also claim that there was no set established practice between Appellees and Appellant for the acceptance of oral notice in such matters as contended by Appellant. Appellees further assert that, since Appellant failed to provide timely written notice in compliance with the lease, the option lapsed. (Appellees’ Answer, No. 6).

The lower court heard no testimony on the matter since it chose to grant summary judgment on the pleadings. Appellant contends that it desired to develop certain testimony at trial “to establish a past practice between the parties of oral modification of written agreements, particularly, ‘that Bantam gave oral notice to Zamias, who indicated oral acceptance in kind.’ ”

It is well-settled law that an option will expire unless it is timely exercised. McMillan v. Philadelphia Company, 159 Pa. 142, 28 A. 220 (1893). Moreover, it is equally well-settled that time is always of the essence in an option contract. New Eastwick Corporation v. Philadelphia Builders, 430 Pa. 46, 241 A.2d 766 (1968). In addition, notice of intent to exercise the option must be given in compliance with provisions of the contract. Borough of Phoenixville, 184 Pa. 615, 39 A. 490 (1898).

In Western Savings Fund Society of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 285 Pa.Super. 187, 427 A.2d 175 (1981), this Court reiterated the previously-held principle that time is of the essence in option contracts. However, the court also held that, in Pennsylvania, the timely notice requirement for option contracts may be waived by agreement or by conduct of the parties. See Cohn v. Weiss, 356 Pa. 78, 81, 51 A.2d 740 (1947); Unatin 7-Up Co., Inc. v. Solomon, 350 Pa. 632, 39 A.2d 835 (1944); Schwoyer v. Fenstermacher, 251 Pa.Super. 243, 380 A.2d 468 (1977). In addition, in Western Savings, the court stated that “[e]ven those jurisdictions which recognize equitable exceptions to the rule that time is of the essence have rigorous standards for determining when such exceptions should operate.” 285 Pa.Super. at 195, 427 A.2d at 179. The court further stated:

Anything short of the utmost good faith and diligence on the part of the party seeking to be relieved from the consequences of a failure to conform strictly to the terms of such contract will not be regarded as sufficient; but where it appears that by the act of the other party, or by unavoidable accident of such character as could not be foreseen and guarded against, the performance of the contract, with the exercise of due diligence was rendered impossible, and the other party at the earliest opportunity performed his part of the contract, the court will enforce it.

285 Pa.Super. at 195, 427 A.2d at 179-80 (emphasis added). Monihon v. Wakelin, 6 Ariz. 225, 234, 56 P. 735, 736-37 (1899).

In Western Savings Fund Society v. Southeastern Pennsylvania Transportation Authority, supra, this Court ruled that, in any case, negligence is not a favored ground for equitable relief. The court ruled that Western’s administrative oversight due to the workload with which it was faced at or about the date on which notice was required in no way shifts or lessens Western’s responsibility for the error in question. 285 Pa.Super. at 196, 427 A.2d at 180. See, Lotz v. City of McKeesport, 70 Pa.Cmwlth. 401, 453 A.2d 74 (1982); Warner v. Bedell Co., 278 Pa. 576, 123 A. 490 (1924). See, e.g., Woodrum v. Pulliam, Ky., 453 S.W.2d 263 (1970); Koch v. H. & S. Development Co., 249 Miss. 590, 163 So.2d 710 (1964); McClellan v. Ashley, 200 Va. 38, 104 S.E.2d 55 (1958).

However, in In the Matter of Opus One, Inc., 33 B.R. 190, 193 (Bankr.W.D.Pa.1983), the court held that, in other circumstances, the lessee who has failed to comply with the written notice provisions set forth in a contract between lessor and lessee has been afforded relief by the courts. Citing H.F.D. No. 26, Inc. v. Middletown Merchandise Mart, 467 F.2d 253 (3rd Cir.1972), the court stated that judgment for the lessor had been reversed notwithstanding lessee’s failure to comply with the written notice provisions of the lease. In H.F.D. No. 26, Id., evidence showed that both parties had clearly contemplated renewal by their conduct.

Moreover, in In the Matter of Opus One, Inc., supra., 33 B.R. at 193, the court, citing McClelland v. Rush, 150 Pa. 57, 24 A. 354 (1892), ruled that the lessor may waive the right to written notice by parol. In McClelland v. Rush, supra., the Pennsylvania Supreme Court reversed judgment, based on its finding that the lessee had given repeated oral notices of intent to renew its contract with lessor. In McClelland, the lessor had not objected to the form of the lessee’s notice, despite the fact that it was oral and not in writing as specified by the contract. Thus, in In the Matter of Opus One, Inc., supra., the court found that the evidence presented at trial showed that the lessor, Kaufmann’s, had “equivalent”, timely notice of the lessee’s, Opus One’s, intent to exercise its option to renew its contract. Despite the fact that Kaufmann’s argues that Opus One did not legally exercise its option to renew by virtue of its failure to send written notice to Kaufmann’s, the court found that Opus One had given timely oral notice of intent to renew to Kaufmann’s who hád not objected to the form at the time in question.

In light of the law concerning timely notice and the lessor’s ability to waive the right to written notice of renewal of lease to the instant case, we find that a genuine issue of material fact still exists and that appellees, as the moving parties, are not entitled to summary judgment. Bertain v. Beck, supra.; See also, Ferguson v. King, supra. In its Complaint, Appellant maintains that its representative, Donald Gawel, orally notified Appellees of its intention to renew the last five (5) year option well within the time prescribed by the lease, i.e., in July 1984. Appellant also maintains that said notice was orally accepted on behalf of Appellees according to the practice established between the parties. (Appellant’s Amended Complaint, No. 6). Thus, we find that Appellant should have been permitted by the trial court to present evidence to show that oral notice of Appellant’s intent to exercise its option to renew its contract was timely offered in July 1984 and that Appellees actually accepted this “equivalent” form of notice. In the Matter of Opus One, supra.

Therefore, we reverse the trial court’s order granting summary judgment and remand this case for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    544 A.2d 491
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Philip Matthew ALLEN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 9, 1988.
    Filed June 30, 1988.

      Mark C. Labrum, Philadelphia, for appellant.

      Harold F. Kaufman, Philadelphia, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, State Farm Mutual Insurance Company, appeals from an order denying its petition to compel appellee, Philip Allen, to submit to a medical examination pursuant to the provisions of the Motor Vehicle Financial Responsibility Law.

The pertinent facts leading up to this appeal are as follows. While insured by appellant, appellee was involved in an automobile accident in which he sustained various injuries, including an acute lumbo sacral strain and sprain and acute lumbo sacral radiculopathy. On September 23, 1986, appellant filed a petition seeking to compel appellee to submit to a medical examination pursuant to Section 1796 of the Vehicle Financial Responsibility Law. 75 Pa.C.S.A. § 1796. Appellee filed preliminary objections to this petition on October 1, 1986. However, the trial court was unaware that such preliminary objections had been filed. As a result, the petition was treated as an uncontested motion and the trial court granted the petition by order dated October 17, 1986. Because the trial court’s order made no mention of the disposition of appellee’s preliminary objections, appellee contacted the trial judge’s administrative staff and inquired about the status of his preliminary objections. Upon investigation, the trial court recognized that it had inadvertently overlooked appellee’s preliminary objections. The court then vacated its October 17, 1986 order and addressed on the merits the petition and answer thereto, which had been filed on October 30, 1986. Upon consideration of both the petition and answer the court denied appellant’s petition for a medical examination. In denying the petition the court concluded that appellant had failed to demonstrate the requisite “good cause” for compelling such an examination. In addition, the court found that appellant’s petition was “replete with lies and falsehoods” and awarded appellee attorney’s fees and costs incurred in presenting the petition. This timely appeal followed. We affirm in part and reverse in part.

An action to compel an insured to submit to an independent medical examination may be commenced under the Pennsylvania Motor Vehicle Financial Responsibility Law under the following circumstances:

(a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance.

75 Pa.C.S.A. § 1796 (emphasis supplied).

Appellant claims that the trial court erred in finding that it had failed to satisfy its burden of showing “good cause” for requiring appellee to submit to a medical examination. The standard for determining whether “good cause” exists for requiring an insured to submit to an independent medical examination under the Motor Vehicle Financial Responsibility Law was recently set forth by a panel of this court in State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa.Super. 386, 536 A.2d 800 (1987). In Zach ary, we stated that in order to demonstrate “good cause”, “it is mandatory that the averments contained within the petition to compel a medical examination must rise to a level of specificity so as to ensure that the claimant will not be forced to submit to unnecessary examinations sought in bad faith.” Id., 370 Pa.Superior Ct. at 389-90, 536 A.2d at 801. We also adopted the analysis employed by the Allegheny Court of Common Pleas in Nationwide Insurance Co. v. Fandray, 12 Pa.D. & C.3d 65, 128 P.L.J. 63 (1979), as the yardstick by which to measure whether a petition has set forth sufficient reasons to justify an independent medical examination:

In Nationwide Insurance Co. v. Fandray, 12 [Pa.] D. & C.3d 65, 70, 128 P.L.J. 63 (1979), the Honorable R. Stanton Wettick of the Court of Common Pleas of Allegheny County commented on the requirements of “good cause shown”:
[t]o establish ‘good cause shown’, an insurer’s petition, at minimum, must contain facts showing that the proofs supplied in support of the claim are inadequate, that the proposed physical examination will substantially assist the insurer in evaluating the claim and that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.
Later, in Erie Insurance Exchange v. Dzandony [Dzadonyl [39] D. & C.3d. [33], 134 P.L.J. 166 (1986), Judge Wettick further opined that the petition must show that ‘the information supplied by the insured in support of his or her claim does not eliminate reasonable doubt as to the validity of the claim.’

While Zachary sets forth the standard for determining whether “good cause” exists, we have also recognized that where the petition and answer demonstrate that factual disputes exist, the case should proceed pursuant to Pa.R. C.P. 209. Keystone Insurance Company v. Caputo, 365 Pa.Super. 431, 435-36, 529 A.2d 1134, 1136 (1987). Under Rule 209, where a party denies material allegations in the petition, the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. In order to expedite the proceedings, the respondent may, after fifteen (15) days, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer. Id.; See also Pa.R.C.P. 209. In Caputo, we further opined:

We have stated elsewhere that Rule 209 places no time limits on either party to proceed, and until either party takes action that would enable the court to make a factual determination or until some other force spurs matters along, the court cannot properly act on the petition. We do not mean by this that the court must sit and wait for the parties to bestir themselves. The court itself may set the time for the argument, so long as the parties are given notice.

Id. (citations omitted).

In the instant case, appellee filed an answer which denied most of the conclusory allegations contained in the petition. Accompanying the answer, appellee attached copies of the medical reports which had been provided to appellant. Appellant’s reply to the answer did not deny that these medical reports had been provided nor did appellant supply the trial court with an affidavit pointing to factual inconsistencies which would justify the taking of depositions or listing the case for argument pursuant to Rule 209. The conclusory allegations contained in appellant’s petition merely demonstrate that appellant believed that these reports were-insufficient to evaluate the nature of appellee’s injuries, the cause of these injuries, and the course of future treatment that would be required. As a result, the trial court was presented with a purely legal question, that is whether the averments contained in the petition were sufficient to raise a reasonable doubt as to the validity of appellee’s claim. Accord, Cross v. 50th Ward Community Ambulance Company, 365 Pa.Super. 74, 528 A.2d 1369 (1987) (conclusory allegations do not give rise to disputed issues of fact and court did not err in failing to conduct proceedings pursuant to Rule 209 before denying petition to open default judgment). Although the trial court was without the benefit of our decision in Zachary, supra, we believe that it nevertheless correctly denied appellant’s petition. In Zachary, where the petition in question contained conclusory allegations much like the one at bar, we stated: “while the averments in the petition stated aspects of the medical information which State Farm felt it needed to be supplemented, they did not demonstrate in what manner those alleged deficiencies caused the insurer to harbor reasonable doubt as to the validity of the claim.” Zachary, supra, 370 Pa.Super at 390, 536 A.2d at 803. We believe that this statement applies with equal force to the petition in the instant case. The trial court committed no error in denying appellant’s petition to compel medical examination.

While we believe that the trial court properly denied appellant’s petition for failure to establish “good cause” for an independent medical examination, we conclude that the court erred in awarding attorney’s fees and costs in the absence of a hearing to determine whether appellant acted arbitrarily, vexatiously, or in bad faith. See 42 Pa.C.S.A. § 2503(7), (9). Generally, if the record supports a court’s finding of fact that the conduct of one party was in bad faith, an award of counsel fees will not be disturbed in the absence of an abuse of discretion. See Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983).

In the present case the record is unclear as to whether appellant brought the instant action vexatiously or in bad faith. The trial court awarded counsel fees and costs based on what it termed were “flagrant lies” contained in the petition and “deliberate omission of material facts.” In the absence of a hearing to further develop the record on the question of appellant’s bad faith, we cannot determine the propriety of the award of attorney’s fees and costs. Accordingly, we reverse and remand for further proceedings consistent with this opinion on the limited question of the award of attorney’s fees.

Affirmed in part. Reversed in part. Remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

Although I agree with my colleagues of the majority that the award of counsel fees and costs must be reversed, I would also hold that it was an abuse of discretion for the trial court to deny the insurer’s petition to require the claimant to submit to a physical examination. With respect to this aspect of the case, I find that I am specifically in disagreement with the majority’s approval of the unnecessarily stringent, three-element test for determining “good cause” which was adopted by a prior panel of this Court in State Farm Mutual Automobile Ins. Co. v. Zachary, 370 Pa.Super. 386, 536 A.2d 800 (1987).

The statutory provision authorizing a court to require a claimant to submit to a mental or physical examination by a physician appears at 75 Pa.C.S. § 1796 as follows:

(a) General rule. — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. The order shall give the person to be examined adequate notice of the time and date of the examination and shall state the manner, conditions and scope of the examination and the physician by whom it is to be performed. If a person fails to comply with an order to be examined, the court or the administrator may order that the person be denied benefits until compliance. (Emphasis added.)

This statutory requirement is not merely a formality, but must be deemed a limitation on the right of an insurer to require a claimant to submit to a mental or physical examination by a physician of the insurer’s choice. The requirement of good cause entails more than relevancy. This requirement, therefore, cannot be met by mere conclusory allegations that the examination will provide relevant information.

It should be obvious that what may be good cause will vary from case to case according to the nature of the alleged injury and the type of examination requested. The ability of the petitioning insurer to obtain the desired information by other means is also a relevant consideration. Of necessity, therefore, much must be left to the sound discretion of the trial judge, who is called upon to apply with discriminating judgment the good cause requirement. The phrase “good cause” depends upon the circumstances of each individual case, and a finding of its existence lies largely in the discretion of the court to which the decision is committed. Wilson v. Morris, 369 S.W.2d 402, 407 (Mo. 19.63).

This does not mean that the petitioner must prove a defense on the merits in order to obtain a mental or physical examination of the claimant. It also does not mean that an evidentiary hearing is necessary in all cases. Although a hearing may be necessary in some cases, in others a showing of probable cause can be made by depositions or affidavits. In still others, it can be determined solely from the petition and answer. The requirement does mean, however, that the petitioning insurance company must produce sufficient information so that the trial court can fulfill the function imposed upon it by statute.

These observations are not novel. They are the same observations made by the Supreme Court of the United States when it was called upon in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), to interpret Federal Rule of Civil Procedure No. 35. The Supreme Court’s reasoning is equally applicable to an interpretation of the statutory good cause requirement now before this Court for interpretation.

The majority approves the minimum requirements adopted in State Farm Mutual Automobile Ins. Co. v. Zachary, supra, as follows: (1) that the proofs submitted in support of the claim are inadequate, i.e., that the information supplied by the claimant in support of his or her claim does not eliminate reasonable doubt as to the validity of the claim; (2) that the proposed examination will substantially assist the insurer in evaluating the claim; and (3) that the amount of the claim justifies a court order compelling the claimant to submit to a physical examination.

I am unable to accept this test. I find particularly objectionable the suggestion that a claim must be of a sufficient amount — the precise amount has not been suggested — to justify an examination. This is based upon the misguided belief that an insurer should accept and not resist a false claim so long as it does not involve a substantial amount. Moreover, a requirement that the claim must be of a “sufficient amount” is a virtual guarantee of additional litigation intended to define a claim of “sufficient amount.” I would find this requirement wholly unacceptable.

I would also reject the majority’s suggestion that a claimant should not be required to submit to an examination if his proof of injury is adequate. The issue should not be the strength of the claimant’s proofs but whether there is an actual controversy. If there is a bona fide controversy about the nature and/or extent of the claimant’s injuries and a physical examination will substantially assist the insurer in evaluating the claim, an examination should be allowed. In such cases, the requirement of good cause has been met.

I would hold that the requirement of good cause contains only two components. These include (1) a bona fide controversy regarding the nature of the claimant’s injuries; and (2) a showing that the requested mental or physical examination will substantially aid the petitioning insurer in its evaluation of the claim. These requirements are adequate to protect the claimant against harassment by the insurer. They will also preserve for the insurer the right to make an independent evaluation of a questionable claim.

In the instant case, I would hold that the petition and answer, with the medical reports and bills attached thereto, are sufficient to establish good cause for requiring the claimant to submit to a physical examination. The claimant has applied to the insurer for continuing reimbursement for physical therapy, muscle relaxants, and other treatment allegedly needed to alleviate a soft-tissue injury of the back which has been diagnosed as “lumbosacral strain and sprain.” The physician’s report, however, contains a suggestion that the claimant’s disability ended approximately nine months prior to the filing of the insurer’s petition for examination. In the meantime, claims for treatment have continued. It is the claimant who has asserted a claim for continuing disability, and he has thereby placed his physical condition in controversy. The nature of the claim and the uncertainty regarding the need for continued treatment, moreover, establish good cause for an examination which will aid the insurer in determining the existence and extent of the injury for which the claimant requests reimbursement.

I would reverse and remand with directions to the trial court to allow the requested physical examination. I would also reverse the order awarding counsel fees and costs.

      . Act of February 12, 1984, P.L. 26, No. 11, effective October 1, 1984, 75 Pa.C.S.A. § 1701 et seq.

      . We note that until Zachary is overturned by either an en banc panel of this court or our supreme court, it represents the law of this Commonwealth. While Judge Wieand makes several pertinent points with respect to the "good cause” determination, traditional principles of stare decisis dictate that we follow precedent established by a prior panel of this court.

      . Appellant claims that the trial court erred in vacating its order of October 17, 1986, which initially granted the petition to compel a medical examination. We disagree. Where a court improvidently issues an order because of its own error or inadvertence, the court possesses inherent power to correct that error when equity so demands. See Great American Credit Corporation v. Thomas Mini Markets, Inc., 230 Pa.Super. 210, 326 A.2d 517 (1974) (holding that where the court improvidently granted a motion for summary judgment because it had inadvertently mislaid a letter requesting an extension of time to answer the motion, the court had power to vacate, sua sponte, the prior order and enter another order dismissing the summary judgment motion). In the present case, the court overlooked the fact that appellee had filed preliminary objections to the petition on October 1, 1986. As a result, the court treated the petition as an uncontestcd motion and issued an order granting the petition on October 17, 1986. When the error was brought to the court’s attention, the court vacated its previous order. Meanwhile, appellee had filed an answer to the petition on October 30, 1986. Evaluating the petition and answer thereto on the merits, the court concluded that appellant had failed to demonstrate "good cause” and denied the petition. We find that the court committed no error in vacating its prior order and entering a second order denying the petition upon discovery of its inadvertence.