text:
    456 A.2d 1066
    Richard DiANDREA and Roimayne G. DiAndrea, husband and wife, Appellants, v. RELIANCE SAVINGS AND LOAN ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied June 8, 1983.

      James H. English, Altoona, for appellants.
    Walter F. Wall, Altoona, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellants, Richard and Romayne DiAndrea, appeal from the order of the Honorable Thomas G. Peoples, Common Pleas Court Blair County, granting judgment on the pleadings to appellee, Reliance Savings and Loan Association.

From the allegations in the pleadings, we adduce the following facts. The appellants entered into an agreement with Lawrence W. Lassak & Associates [hereinafter Lassak] providing for the construction of a single-family dwelling for appellants at a price of $25,000.00. To provide the funds for construction, appellants then concluded a loan agreement with appellee. The loan agreement provided that appellee would pay the builder certain stipulated amounts at various stages of the construction. It also provided that appellee shall:

“4. Make periodic inspections of the progress of the construction to the end that, in protection of the mortgagee’s interests, the same shall be in substantial compliance with the plans and specifications. This understanding shall not relieve Owner from making such inspections as he may think necessary for his protection.” (Emphasis added.)

The loan was secured by a mortgage executed simultaneously with the loan agreement. The mortgage covered the premises upon which construction was contemplated, and also an additional property owned by appellants. The additional property had been previously mortgaged to appellee. The outstanding amount on this mortgage was combined with the new mortgage and the previous mortgage was designated satisfied in the office of the Recorder of Deeds of Blair County.

Pursuant to the agreement, appellee paid Lassak $2,300.00 for the commencement of the project. Later, appellee made a second payment of $7,210.00 to Lassak upon presentation of a requisition for payment approved by appellant, Richard DiAndrea. On that same date, a Building Inspector of the City of Altoona ordered construction to be halted because the foundation did not conform to the requirements of the City Building Code.

Appellants subsequently filed this action in equity seeking cancellation of the new mortgage, reinstatement of the earlier one, and credit on the reinstated mortgage for the payments made pursuant to the new mortgage. The gravamen of this action was that appellee breached the loan agreement by making payments for work not properly performed, and by failing to properly inspect the on-site construction of the premises. After receiving the complaint in equity of appellants, appellee filed preliminary objections in the nature of demurrer, which were denied. Appellants filed a petition for termination of the mortgage, to which appellee responded. Subsequently, an amendment to appellants’ complaint was filed in accordance with an order of the trial judge. Then appellee answered the amended complaint specifying new matter. Appellants filed their reply. Appellee then filed a motion for judgment on the pleadings, which was granted. Whereupon, appellants filed this appeal.

Three issues are presented for our consideration by appellants. The first issue presented is whether granting a judgment on the pleadings is proper after the denial of a demurrer on the same issue when the later pleadings raise no materially new or different issues. The second question presented is whether the trial court erred in granting judgment on the pleadings because of the existence of an issue of fact as to an averment of a settlement of the disputed claim between appellants and appellee. The third issue presented is whether it is proper for the trial judge to grant a judgment on the pleadings when the case involves issues of first impression. We note that appellants have not challenged the trial judge’s ruling that appellants’ complaint failed to state a claim upon which relief may be granted, therefore we do not undertake a review of that determination herein.

Initially, we will consider the first issue raised by the appellants which challenges the propriety of the trial judge’s decision to consider the motion for judgment on the pleadings. Appellant maintains that it is improper for a trial judge to grant judgment on the pleadings after the earlier denial of preliminary objections in the nature of a demurrer when the later pleadings raise no issues materially new or different from those considered on the basis of the demurrer. Our research has not disclosed any appellate decisions discussing this issue and the parties have not cited any. However, the issue has been raised in some trial court opinions with differing results. See e.g. Berlin v. Drexel University, 10 Pa.D. & C.3d 319, 321-322 (C.P. Philadelphia 1979) (consideration granted); Pennsylvania State Chamber of Commerce v. Hart, 45 Pa.D. & C.2d 352 (C.P. Dauphin County 1968) (consideration denied); Overbrook Farms Club v. MacCoy, 32 D. & C.2d 603 (C.P. Montgomery County 1963) (consideration granted); Nakles v. Union Real Estate Company, 111 P.L.J. 112 (C.P. Allegheny County 1963) (consideration denied); Shaw v. Courtney, 37 Erie L.J. 177 (C.P. Erie County 1953) (consideration granted). We note also the following statement regarding the issue in 2B Anderson’s Civil Practice § 1034.4:

[T]he right of either [party] to file [a motion for judgment on the pleadings] is not affected by whether the moving party had or had not filed a demurrer to the pleadings earlier in the action ... The fact that [a] defendant did file a demurrer which was dismissed does not bar him from filing a motion for judgment on the pleadings after the plaintiff has filed his reply [to new matter] if the record as it then stands warrants such relief.

The motion for judgment on the pleadings is one of several pretrial mechanisms to save the parties the expense of having to go to trial on the merits before examining the legal sufficiency of the case. Even after the denial of an earlier demurrer, it permits the trial judge to re-examine the legal sufficiency of the case in light of additional facts and legal theories developed as a result of new matter and the reply thereto. Alternatively, in cases of first impression, the trial judge by denying the demurrer initially can permit the parties to fully develop the facts of the case before ruling on its legal sufficiency. See Berlin v. Drexel University, supra. In instances, like the instant case, where no further factual development occurs, the motion for judgment on the pleadings will permit the trial judge to consider any relevant legal authority decided in the interim period. Should the motion simply repeat the earlier arguments rejected in the demurrer, the trial judge may exercise his discretion to deny it. See Pennsylvania State Chamber of Commerce v. Hart, supra; Nakles v. Union Real Estate Company, supra. Thus, we can discern no reason for prohibiting the consideration and granting of a motion for judgment on the pleadings filed subsequent to the denial of a demurrer, if the record as it then stands warrants such action.

When considering the appropriateness of judgment on the pleadings, we are guided by the following principles summarized in Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981):

It is fundamental that a judgment on the pleadings should not be entered where there are unknown or disputed issues of fact____ In conducting this inquiry, the court should confine its consideration to the pleadings and relevant documents____ Since a motion for judgment on the pleadings is not a motion for summary judgment, no affidavit or depositions may be considered, nor is any matter before the court except the pleadings.

Id., 293 Pa.Superior at 176-77, 437 A.2d at 1263. (Citations omitted).

Appellants assert that judgment on the pleadings is barred by the existence of issues of fact. The first issue of fact delineated by appellants is that the parties concluded a settlement of the new mortgage. With this contention, we must disagree.

The source of the first issue of fact alleged in appellants’ brief was the “Petition for Termination of the Mortgage Payments.” After this petition was filed, appellants amended their complaint to attach a copy of the construction contract. However, they did not seek to amend their complaint to allege, as they had in their petition, a settlement of the new mortgage.

Pursuant to the conformity rule set forth in Pa.R.Civ.P. 1501, equity procedures are governed by the rules of practice in assumpsit cases. Pa.R.Civ.P. 1017 limits pleadings to “a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, ... a preliminary objection and an answer thereto.” As appellee correctly indicates, appellants’ petition cannot be considered by a court evaluating a motion for judgment on the pleadings, for it is not part of the pleadings in the case, nor is it a document properly attached thereto. Nederostik v. Endicott-Johnson Shoe Company, 415 Pa. 136, 202 A.2d 72 (1964). Since we are not at liberty to consider material other than the pleadings and documents attached thereto, we conclude that the first issue of fact raised by appellants does not bar judgment on the pleadings because appellants have failed to properly preserve the issue for consideration by the court, though they had ample opportunity to do so.

The second issue of fact concerns the amount appellants owe oh the new mortgage. We find no merit in appellants’ assertion that the trial court judicially established the amount they owed to appellee in its addendum opinion and order. The figures mentioned by the trial judge were not binding upon the parties.

Appellants’ third issue raises the question of whether it is proper for a trial judge to grant a judgment on the pleadings when issues of first impression are involved in a case. In their brief, appellants state that the issues presented in the instant case have not been decided by a Pennsylvania appellate court. Relying upon language in the case of Jefferies v. Hoffman, 417 Pa. 1 n. 1, 207 A.2d 774 n. 1 (1965), appellants assert that the trial judge inappropriately granted judgment on the pleadings in the instant case.

In our view, the distinguished trial judge was correct in characterizing the legal controversy in this case as one of the contractual interpretation of the loan agreement to determine the rights and obligations imposed upon appellee.

Appellants rely upon the following language appearing in note 1 of the Jefferies opinion: “Where, as in this case, the rules of law are not clear, a court should be especially wary of granting judgment on the pleadings before the factual underpinnings are well defined.” This language does not prohibit the granting of a judgment on the pleadings absolutely. Rather, it requires the trial court to develop the factual basis of the case before considering the legal sufficiency of the pleadings. In Jefferies, the trial court failed to do so when it denied the plaintiffs leave to amend their reply to new matter. In the instant case, we must agree with appellee that the language of Jefferies has not been disobeyed. Here the parties amply developed facts of the case. Appellants do not argue that the facts underlying their legal theory were insufficiently developed before the trial judge ruled upon the motion. Rather, they draw the unwarranted conclusion from Jefferies that trial is the only method of developing the factual matters pertaining to a dispute. To the contrary, we believe that where no relevant issues of fact are raised, the trial becomes an expensive, unnecessary, and fruitless exercise.

Instantly, upon examination of the facts, the trial judge concluded that only a question of law as to the scope of the obligations imposed by the loan agreement remained for his consideration. Our examination of the pleadings affirms that no relevant factual disputes existed. Indeed, most of appellee’s denials were to legal conclusions in appellants’ complaint as to the obligations imposed upon appellee by the loan agreement. Inevitably, we conclude, as did the trial judge, that the resolution of this case depended upon interpretation of the written loan agreement.

As illustrated by the case of Kroiz v. Blumenfeld, 229 Pa.Super. 194, 323 A.2d 339 (1974), the granting of a motion for judgment on the pleadings may be appropriate in cases that turn upon the construction of a written agreement. See also Goodrich Amram 2d § 1034(b):l n. 14 (collecting cases). In Kroiz, the subcontractor (Kroiz) pursuant to a clause in the subcontract agreed to be liable for materials furnished in connection with the work it performed. Subsequently, a supplier of materials to Kroiz sued the main contractor, who joined Kroiz, for the price of goods it had supplied. By letter Kroiz and the main contractor agreed that the main contractor would pay Kroiz the amount of money due it, under the subcontract, reserving in escrow $7,000 to pay any judgment entered against the main contractor as a result of the existing litigation with the supplier. Judgment was entered solely against Kroiz. Kroiz thereafter demanded payment of the $7,000.00 held in escrow. The main contractor refused arguing that the escrow agreement was intended to withhold sufficient funds from Kroiz for the payment of any and all judgments entered against the main contractor by the supplier. The main contractor contended that the money should not be released from escrow until the outcome of a second suit filed by the supplier against the main contractor for goods it ordered from the supplier.

Affirming judgment on the pleadings, this court found that the main contractor had not pleaded any facts in support of its interpretation of the scope of the escrow agreement, that the escrow agreement constituted the full understanding of the parties, and that the terms of the escrow agreement clearly and unambiguously applied only to the first litigation by the supplier.

We find that the analysis in Kroiz controls the instant case. Here, the trial judge interpreted the loan agreement and found that appellee had no obligation to make payments only when it ascertained, upon proper inspection, that the work was properly performed. This interpretation was derived from the clear language of the agreement. We find no error in it. As we noted earlier, appellants’ pleadings did not raise any factual disputes regarding the interpretation to be ascribed to the loan agreement. Hence, the trial judge was at liberty to decide as a matter of law the determinative question of interpretation.

For the foregoing reasons, we affirm the order granting judgment on the pleadings.


source: Caselaw Access Project

author: LIPEZ, Judge.

license: Public Domain

text:
    456 A.2d 1071
    COMMONWEALTH of Pennsylvania, Appellant, v. David William GRIFFIS.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Feb. 18, 1983.

      Graham C. Showalter, District Attorney, Lewisburg, for appellant.
    William F. Donovan, State College, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge.

This is a Commonwealth appeal from an order granting defendant’s motion to dismiss the charge under Rule of Criminal Procedure 1100(f). The trial judge concedes in his opinion that his determination is based on “facts” which are not of record, but taken from the briefs of the parties filed in the lower court. The statement in the opinion that the briefs are “not in dispute” as to the facts is incorrect, and even if it were true, the trial judge in ruling on the motion should not have made factual determinations based on the parties’ briefs. Erie Indemnity Company v. Coal Operators Casualty Company, 441 Pa. 261, 265, 272 A.2d 465, 466-67 (1971). Moreover, the Commonwealth’s failure to file an answer to defendant’s Rule 1100 motion is not an admission of any factual allegations in the motion. Pa.R.Crim.P. 308(a). There is no indication in the record that there has ever been a hearing on defendant’s motion. Therefore, we shall vacate the lower court’s order, and remand with the direction to hold a hearing, in order to develop a record on which disposition of the motion may be based.

Order vacated, indictment reinstated, and case remanded for further proceedings. Jurisdiction is not retained.

PRICE, J., did not participate in the consideration or decision of this case due to his death.

      . We imply no view as to what combination of facts, if proved at the hearing, would suffice to sustain defendant’s Rule 1100 claim. Defendant’s motion appears to raise questions of first impression involving the interaction of Rules 133, 134, 150 and 1100, but it would be premature for us to rule on any legal questions with the record in its current state. We also point out to the parties that they do not develop a record which we may consider on appeal merely by making factual allegations in an appellate brief. Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 483, 427 A.2d 1385, 1390 (1981).


author: PER CURIAM:

text:
    456 A.2d 1072
    COMMONWEALTH of Pennsylvania, Appellant, v. Thomas Joseph CARNEY.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied Aug. 1, 1983.

      Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Commonwealth, appellant.
    Gregory Y. Smith, Williamsport, for appellee.
    Before CÉRCONE, President Judge, and JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal by the Commonwealth from an order of the lower court which granted appellee, Thomas Joseph Carney, a new trial. The Commonwealth alleges that the lower court committed an error of law when it ruled a new trial was required owing to a prosecution witness’s response on direct examination. We conclude, from our examination of the record, that the lower court did in fact err when it granted appellee a new trial. Therefore, we reverse and remand for reinstatement of appellee’s verdict, disposition of appellee’s remaining post-verdict motions and for sentencing.

Appellee was tried on six counts of receiving stolen goods. One Robert Moon testified as to his commission of several burglaries, after which he took the stolen items to the residence of appellee where he sold them to appellee. Then a Mr. Bloom, appellee’s roommate, testified. He stated that he was present when Moon brought the second shipment of stolen items. The prosecutor questioned Bloom thus.

Q. All right, sir. You have—a couple of things here. You say you believe there was a price quoted and it was too high?
A. Yeah, it was, to my recollection. You have to understand that it’s been quite some time since this happened. At that time, it was a very insignificant thing.
Q. What do you mean by that?
A. Meaning—
BY [DEFENSE COUNSEL]: Objection, Your Honor, as to what he means by that.
BY THE COURT: Overruled.
A. Meaning that I knew that things like that have happened before and I hadn’t participated in them up to that point and—

Counsel for appellee objected to the underlined portion of the testimony on the grounds that it inferred unrelated criminal activity on the part of appellee and moved for a mistrial on that ground. The motion was denied and the jury was instructed to disregard the answer.

After the jury returned a verdict of guilty, the defendant again pressed this point in support of a motion for new trial. The lower court granted the motion, and concluded that it was compelled to do so as a matter of law under Commonwealth v. Clark, 453 Pa. 449, 452, 309 A.2d 589, 590 (1973).

The Commonwealth claims that the granting of this new trial was error in that the remark could not reasonably be understood by the jury as relating to prior unrelated criminal activity by appellee and that, as a matter of law, the curative instruction given by the trial judge to disregard the answer was sufficient. We agree with both contentions.

While the trial court has power to order a new trial “in its discretion”, that is not an unbridled power. Rather, a trial court’s discretion is to be measured against legally cognizable standards. In this sort of situation, our Supreme Court has recently instructed that both the nature of the reference (to the prior unrelated criminal activity) and whether the Commonwealth intentionally elicited the remark are pertinent in reviewing the trial court’s exercise of discretion in granting a new trial on this basis. Commonwealth v. Richardson, 496 Pa. 521, 526-527, 437 A.2d 1162, 1165 (1981). Moreover, “to warrant a characterization as prejudicial the testimony must convey to the jury either expressly or by implication, the fact of a prior criminal offense.” Commonwealth v. Irwin, 475 Pa. 616, 622, 381 A.2d 444, 447 (1977).

The nature of the reference in this case is, at most, oblique. That the witness “knew that things like that have happened before” has no direct or indirect relation to appellee’s knowledge. That the witness “hadn’t participated in them up to that point” is merely a statement self-serving in nature and cannot be interpreted as a reference to appellee. Taken together, there is hardly the suggestion that appellee had engaged in any such activities prior to those for which he was currently being tried.

The case of Commonwealth v. Clark, supra, upon which the lower court relied in granting the new trial, involved a reference by a witness to the fact that the defendant “was in prison,” 453 Pa. at 452, 309 A.2d at 590. A mistrial was requested, denied by the lower court and no cautionary instructions were given. The Supreme Court reversed and granted a new trial.

The grant of a new trial in Clark and in many other cases is clearly warranted when the nature of the references is examined. However, we fail to see how the challenged reference in this case could reasonably be understood to refer to prior criminal conduct by appellee.

Additionally, there is no evidence that the Commonwealth intentionally elicited the challenged response.

We conclude that any such inference was too remote at best and certainly undone by the curatiye instruction that the jury disregard the testimony—testimony which could hardly be comprehended in the fashion appellee urged in the first place. !

Therefore, we reverse and remand for reinstatement of the verdict, dispositions of remaining post verdict motions and for sentencing. Jurisdiction is not retained.

      . The Commonwealth may appeal as of right an order by the lower court awarding a new trial where the Commonwealth claims that the lower court committed an error of law. Pa.R.A.P. 311(a)(5), 42 Pa.C.S.A.

      . Cf., Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978) (New trial warranted by witness’s remark that he had buried "a couple of bodies” for defendant); Commonwealth v. Taylor, 460 Pa. 616, 334 A.2d 261 (1975) (Unexplained reference to possession of defendant’s photograph by police could be reasonably inferred by jury to relate to prior criminal activity; new trial ordered); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973) (new trial granted because of police officer’s testimony that in all his years as a police officer, he had heard the defendant’s name before.); Commonwealth v. DeCampli, 243 Pa.Superior Ct. 69, 364 A.2d 454 (1976) (Systematic, repetitive references to "other incidents”, "prior acquaintance”, and "other cases" could not possibly be interpreted except as appellant’s involvement in prior criminal activity.)


author: HESTER, Judge:

text:
    456 A.2d 1074
    William BORRELL v. CONTINENTAL CASUALTY COMPANY and Commercial Union Assurance Company and Pennsylvania Assigned Claims Plan. Appeal of PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied Oct. 7, 1983.

      David B. Glancey, Harrisburg, for appellant.
    Richard K. Hohn, Philadelphia, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

On October 14, 1977, appellee, William Borrell (Borrell) was involved in a two vehicle accident while operating a motor vehicle owned by his employer, Lukens Steel Company. Borrell was engaged on company business at the time of the accident. The other vehicle involved was owned by the Orthliep Company and operated by an employee of that company. The Lukens vehicle was insured by Continental Casualty Company (Continental). The Orthliep vehicle was insured by Commercial Union Assurance Company (Commercial Union). Borrell was not insured. He did not own a motor vehicle.

Borrell applied for and received benefits from his employer pursuant to the Pennsylvania Workmen’s Compensation Act.

Appellee, Borrell, then instituted the within action in order to recover basic loss benefits under the No-fault Act, 40 P.S. Section 1009.101 et seq., against Continental Casualty Company, Commercial Union and the Pennsylvania Assigned Claims Plan, in excess of the benefits received under the Workmen’s Compensation Act.

The court below granted judgment on the pleadings in favor of Commercial Union and Continental Casualty. The court also entered judgment against appellant, Pennsylvania Assigned Claims Plan, in favor of appellee for the difference between the benefits paid him under the provisions of the Workmen’s Compensation Act and the benefits due to him under the No-fault Act, or $2,706.56.

This is an appeal by the Assigned Claims Plan from that ruling.

We affirm.

The appellant, the Assigned Claims Plan, argues that the appellee, an employee, injured while operating his employer’s motor vehicle while in the course of his employment is entitled to receive only Workmen’s Compensation benefits and not the benefits provided for under the No-fault Act. In other words, the Workmen’s Compensation award is. appellee’s exclusive remedy.

Appellant cites Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980), as authority for this proposition. In Wagner, supra, suit was brought by the estate of a decedent, who was killed while operating his employer’s tractor during the course of his employment, to recover work loss and survivor's loss benefits from the employer’s no-fault insurance carrier. Our Supreme Court held that an employee injured in the scope of his employment while driving his employer’s vehicle may recover only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier and may not recover against the employer’s no-fault carrier. However, the Court, in Wagner, specifically stated:

"... where an employee is injured in an accident and is covered by workmen’s compensation, this by no means precludes recovery under no-fault; Section 303 of the Workmen’s Compensation Act precludes recovery from the employer only. Thus, while no recovery is allowed under Section 204(a)(1) against the employer’s no-fault carrier because of the exclusivity section of workmen’s compensation, an insured employee could recover under Section 20If(a)(2)(5) if applicable. From this recovery, the workmen’s compensation benefits would be deducted as called for in Section 206 of the No-Fault Act.” ******
“In sum, an employee injured in the scope of his employment while driving his employer’s vehicle, may recover only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier; such a result is compelled by Section 303 of the Workmen’s Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-(5). Should the employee recover no-fault benefits, workmen’s compensation benefits must first be deducted from any no-fault benefits to be paid. Should an employee be using his employer’s vehicle for private non-work related reasons, the employee could recover from his employer’s no-fault carrier.” (emphasis added). 492 Pa. 154, 165, 168, 442 A.2d 1061, 1067, 1068 (1980).

It is to be noted that our Court, in Adams v. Nationwide Insurance Company, 285 Pa.Super. 79, 426 A.2d 1150 (1981), has interpreted the above section of Wagner to permit a suit against his own no-fault carrier by a victim injured while driving his own automobile, but within the scope of his employment. The Court noted that Wagner, supra, only prohibits an action under Section 204(a)(1) of the No-fault Act, and since this action by the employee was under Section 204(a)(2), it was not in conflict with the Workmen’s Compensation Act, 77 P.S. § 481(a), (Section 303), (1974). Also, two recent decisions by our Court have permitted actions by employees under Section 204(a)(2). See Motley v. State Farm Mutual Automobile Insurance Company, 303 Pa.Super. 120, 449 A.2d 607 (1982); Augostine v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa.Super. 50, 437 A.2d 985 (1981). The employee-victim was permitted to recover from his own no-fault carrier.

Therefore, appellee, Borrell, has a potential recovery under Section 204(a)(5), which provides:

“(a) Applicable Security.—The security for the payment of basic loss benefits applicable to an injury to:
(5) any other individual is the applicable Assigned Claims Plan.”

This section directs individuals such as Borrell who are not entitled to no-fault benefits under the preceding sections to seek recovery from the Pennsylvania Assigned Claims Plan. 40 P.S. § 1009.204(a)(5). The Plan is a statutorily created fund designed as a safeguard for unforeseen situations in which no carrier which receives premiums is available to respond. 40 P.S. § 1009.108.

In view of the foregoing, we therefore now hold that where an employee sustains an injury as the result of a motor vehicle accident while operating his employer’s vehicle during the course of his employment, not owning a motor vehicle and being uninsured, that person may recover no-fault benefits from the Pennsylvania Assigned Claim Plan in excess of the recovery provided by the Workmen’s Compensation Act.

The judgment on the pleadings entered by the trial court in favor of Commercial Union Assurance Company, the carrier of the other vehicle involved, will also be affirmed. We held in Schimmelbusch v. Royal Globe Ins. Co., 247 Pa.Super. 28, 371 A.2d 1021 (1977), that the uninsured driver of an uninsured car had to submit his claim to the assigned claims bureau, rather than to the insurer of the other vehicle involved in the accident.

Orders affirmed.

      . Section 303 of the Workmen’s Compensation Act provides:
      “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death ... or occupational disease ...”. As amended, Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(a) (Supp.1979-80).

      . In drafting the No-fault Act, the Legislature sought to insure that all individuals injured as a result of motor vehicle accidents in the Commonwealth would be equitably compensated for their injuries. 40 P.S. § 1009.102(a)(3), (9), and (b). No distinctions were drawn between persons injured in the course of their employment and those injured during private pursuits. 40 P.S. § 1009.101 et seq. Rather, provision was made for similarly injured individuals to be compensated equally and from multiple sources of applicable security, if necessary. 40 P.S. § 1009.204(b).


author: McEWEN, Judge:

text:
    456 A.2d 1077
    NORTHAMPTON VALLEY CONSTRUCTORS, INC., Appellant v. HORNE-LANG ASSOCIATES, John J. McIlhinney, Frank B. Capone, Harold Carr, John Coletti, Robert Coyle, Joseph DiLarso, Edward Dougherty, Edward Duff, Spero Ferentinos, Eugene Garrity, Joseph Glancey, Joseph Grimes, Raymond Kelly, Howard Mattson, Joseph V. McIlhinney, Dominic Megaravo, Joseph Ryan, Priscilla Carr and Nancy Duff.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1981.
    Filed Feb. 25, 1983.

      Stephen I. Weiss, Langhorne, for appellant.
    Richard T. Abell, Ambler, for Carr, Duff and Grimes, appellees.
    Werner H. Von Rosenstiel, Philadelphia, for Kelly, appellee.
    John J. Connors, Southampton, for Ryan, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

We here consider an appeal from an order of the Common Pleas Court of Bucks County which sustained preliminary objections in the nature of a demurrer and dismissed the complaint as to eighteen of the named defendants. We affirm.

Plaintiff-appellant Northampton Valley Constructors, Inc. brought suit against the following parties: Horne-Lang Associates (Horne-Lang), a Pennsylvania limited partnership; John J. Mcllhinney, the general partner of Horne-Lang; and the eighteen limited partners of Horne-Lang. Ten of the limited partners filed preliminary objections, four others filed answers to the complaint, and the remaining four limited partners were never served. The Common Pleas Court sustained the preliminary objections and dismissed the complaint as to all of the limited partners named in the suit.

We are guided in our review of this case by the principles enunciated by the distinguished Pennsylvania Supreme Court Justice Robert N.C. Nix, Jr. in Sinn v. Burd, 486 Pa. 146, 149-50, 404 A.2d 672, 673-74 (1979):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

The within complaint alleges that appellant and Horne-Lang entered into a contract whereby appellant agreed to provide the labor, material and equipment necessary to install a sanitary sewer system, a portable sewer system and a storm sewer system on land owned by Horne-Lang in return for the payment by Horne-Lang of $363,753.00. The complaint further alleges that appellant fully performed under the contract, that Horne-Lang breached the contract by non-payment, and that Horne-Lang owes appellant $186,-426.07 plus interest. Count three of the complaint alleged that the limited partners were de facto general partners and, therefore, were liable to the appellant as if they were general partners.

A limited partnership is a creation of our legislature and “[i]t permits a manner of doing business whereby individuals may invest their money free of the fear of unlimited liability and of the responsibilities of management.” Freedman v. Tax Review Board of City of Philadelphia, 212 Pa.Super. 442, 449, 243 A.2d 130, 135 (1968), aff'd., 434 Pa. 282, 258. A.2d 323 (1969). The pertinent statute, the Uniform Limited Partnership Act, 59 Pa.C.S.A. § 501 et seq., Act of Dec. 19, 1975 (P.L. 524, No. 155), provides:

§ 511. Limited partnership defined
A limited partnership is a partnership formed by two or more persons under the provisions of section 512 (relating to formation), having as members one or more general partners and one or more limited partners. The limited partners as such shall not be bound by the obligations of the partnership.
§ 512. Formation
(a) General rule.—Two or more persons desiring to form a limited partnership shall:
(1) Sign a certificate, which shall state:
(vii) The additional contributions, if any, agreed to be made by each limited partner, and the times at which or events on the happening of which they shall be made.

The certificate of the limited partnership we here study contains, pursuant to § 512(a)(l)(vii), the following provision concerning additional contributions:

No additional contributions have been agreed to be made. However, additional contributions are required if the General Partner determines that the partnership requires additional funds to meet the obligations of the partnership.

It must be emphasized that this claim against the limited partners is exerted by a creditor of the partnership and not by the partnership. A creditor may pursue a claim against a limited partner as a general partner only in the limited circumstances prescribed by § 521 of the Act, namely, when the limited partner “takes part in the control of the business”. Appellant did not, however, allege and does not now argue that the limited partners took part in the control of the business.

This claim against the limited partners, made by appellant as a creditor of the partnership, is based upon the aforementioned provision of the partnership certificate concerning additional contributions. Appellant contends that, as a result of this provision, the limited partners were de facto general partners and argues that, since the general partner could have and should have called upon the limited partners to provide additional capital to the partnership in order to pay the creditors of the partnership, the limited partners are liable to creditors for the debts of the partnership over and beyond their investment. Appellant asserts that since “the limited partners have committed to make their investment equal the obligations, they are bound for that sum not because they are bound beyond the limit of their commitment but because their commitments equal those obligations.” (Brief of Appellant at p. 13). The premise for this assertion is, however, simply not correct since the limited partners did not commit to make their investments in the partnership equal to the obligations of the partnership; nor does the clear meaning of the plain language concerning additional contributions permit interpretation, let alone allow the inference urged by appellant.

Appellant does allege in the complaint that “the General Partner determined that the partnership required additional funds to meet the obligations of the partnership” and, as we have earlier noted, we are obliged to accept that averment as a fact. Nonetheless, whatever liability such a determination by the general partner may have imposed upon the limited partners in favor of the partnership, we are not persuaded that the limited partners thereby became as equally liable to creditors as were the general partner and the partnership.

Order affirmed.

      . Although the limited partnership we here consider was formed under the provisions of the Act of April 12, 1917 (P.L. 55 No. 37), section 502 of the 1975 Act, 59 Pa.C.S.A. § 502, provides that limited partnerships formed under the provisions of the 1917 Act should be governed by the 1975 Act.

      . See 59 Pa.C.S.A. § 531.


author:
LIPEZ, Judge:
      SPAETH, Judge,

text:
    456 A.2d 1080
    COMMONWEALTH of Pennsylvania, Appellant v. Anthony BURNO.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied June 17, 1983.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Dennis R. Suplee, Philadelphia, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   LIPEZ, Judge:

This is a Commonwealth appeal from an order permitting withdrawal of defendant’s guilty pleas, vacating the judgment of sentence imposed on those pleas, and ordering a new trial. We agree with the Commonwealth that the lower court’s order is inconsistent with Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979). Therefore we reverse the order of the court below, reinstating the guilty pleas and judgment of sentence.

Defendant was charged in 1974 with murder generally, as well as robbery and conspiracy. Defendant’s counsel arranged a plea bargain, whereby defendant would plead guilty to murder and robbery, and the Commonwealth would certify that the murder rose no higher than third degree. The Commonwealth also agreed to recommend sentence of ten to twenty years for murder, with a consecutive five to ten years for robbery, and to move to nol pros the conspiracy charge. After a colloquy and summary of evidence by the prosecutor, Judge Savitt accepted the pleas of guilty of murder and robbery, adjudicated the degree of guilt for the murder as third degree, granted the motion to nol pros the conspiracy charge, and imposed the Commonwealth’s recommendation of sentences totalling fifteen to thirty years.

In 1977, defendant filed a Post Conviction Hearing Act petition. The PCHA court appointed counsel, who filed amended petitions. After an evidentiary hearing, Judge Blake entered an order vacating the judgment of sentence and granting defendant a new trial. The Commonwealth filed a timely petition for reconsideration, and Judge Blake vacated the order, pending reconsideration. On December 16, 1980 Judge Blake entered an order reinstating his original order granting a new trial. The Commonwealth then took this appeal.

Judge Blake held that defendant’s guilty plea counsel had been ineffective in failing to raise the issue that the guilty plea colloquy was defective, because of failure to inform defendant of all elements of the offenses and the possible range of sentences. The Commonwealth contends we must reverse Judge Blake’s determination, because of Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979) (plurality opinion by Flaherty, J., joined by O’Brien and Larsen, JJ.; concurring opinion by Roberts, J., joined by Eagen, C.J.), in which a total of five justices held that guilty plea counsel was not ineffective in failing to attack a defective colloquy, even though there were valid grounds to do so, because the record demonstrated that the defendant was satisfied with the favorable plea bargain which had been negotiated.

Defendant here contends, that his guilty plea counsel was nonetheless ineffective, because the record here shows that counsel did not inform defendant that there were grounds for withdrawal of his pleas, so that defendant could weigh this possibility against the favorable plea bargain and make his own choice as to whether to attack the guilty pleas on the basis of defects in the colloquy. However, this was also the case in Newell, in which counsel’s failure to advise his client that the colloquy was defective formed the basis for Justice Nix’s dissenting opinion. 486 Pa. at 478, 406 A.2d at 735. Justice Nix’s position that counsel was ineffective was rejected by the five justices who joined the plurality and concurring opinions.

Defendant also contends that his 15-to-30 year sentence is not much better than the maximum he could have received had he gone to trial and been convicted of all offenses. While it is true that the plea bargain here was not so favorable as the one in Newell, it was nonetheless favorable, as the evidence summarized at the time of the guilty pleas colloquy would clearly have supported a finding of first-degree murder under 18 Pa.C.S. § 2502(a) (Supp. 1982-1983). Hence defendant could have received a life sentence rather than the ten to twenty years for murder. In addition, the sentence of five to ten years which defendant received for robbery under the plea bargain was less than the ten to twenty years he could have received had he been convicted of robbery at trial. The plea bargain also allowed defendant to avoid any sentence at all for criminal conspiracy, which was nol prossed. All that Newell requires is that the bargain be favorable, and that the defendant understand the bargain and be satisfied with it. These requirements were met here. The law governing this case has been precisely stated by Judge Spaeth:

[T]he record shows that appellant’s counsel negotiated a favorable plea bargain, and appellant understood the bargain and was satisfied to accept it rather than go to trial. In these circumstances counsel’s failure to challenge the defective colloquy had a reasonable basis designed to effectuate appellant’s interest. Accordingly, counsel was not ineffective. Commonwealth v. Newell, [supra]; Commonwealth v. Simpson, 290 Pa.Super. [11], 434 A.2d 103 (1981).

Commonwealth v. Weiss, 289 Pa.Super.Ct. 1, 8, 432 A.2d 1020, 1024 (1981) (concurring opinion).

Order reversed; guilty pleas and judgment of sentence reinstated.

SPAETH, J., files dissenting opinion.

SPAETH, Judge,

dissenting:

As the majority recognizes, Commonwealth v. Newell, 486 Pa. 478, 406 A.2d 733 (1979), and Commonwealth v. Weiss, 289 Pa.Super. 1, 432 A.2d 1020 (1981), require that the plea bargain be favorable, and that the defendant understand the bargain and be satisfied to accept it rather than go to trial.

Although the majority characterizes the bargain here as favorable, the Commonwealth did not. Thus at the guilty plea hearing, in support of the court’s accepting the plea, the assistant district attorney said:

As the Court well knows a life sentence in Pennsylvania at the present time carries an average sentence in the neighborhood of fifteen years. This defendants [sic] guilty plea to that minimum sentence in effect provides the Commonwealth with the punishment that the law presently imposes as a practical matter, although not as a theoretical matter, and therefore we feel that the plea is justified based on all of those factors.
R.R. at 29a-30a.

But if we treat the bargain as favorable, still, appellee as defendant could not have understood it. For as the majority acknowledges, there was no discussion of the elements of the crime charged or of the permissible range of sentences. Since appellant could not have understood the bargain, he could not have been satisfied—that is, he could not make an intelligent decision to be satisfied—to accept it rather than go to trial.

Newell and Weiss do not support the majority but are contra. In Newell, “Appellant knew there was a possibility of receiving first degree murder, and he also knew the theft charges would be dropped by pleading guilty to third degree murder.” 486 Pa. at 477, 406 A.2d at 734. In Weiss, the elements of the crime charged (burglary) were defined, and appellant knew he was “facing 40 to 60 years.” 289 Pa.Super. at 7, 432 A.2d at 1023. He got only 4 to 10 years. Thus, in both cases the defendant got a bargain, he understood the bargain, and he could make an intelligent decision to accept it rather than go to trial. Here, these requirements are not satisfied.

The order of the lower court should be affirmed.


author: HESTER, Judge: POPOVICH, Judge,

text:
    456 A.2d 1366
    Honorable Joseph P. BRAIG, Appellant, v. FIELD COMMUNICATIONS and Lloyd George Parry.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1982.
    Filed Jan. 14, 1983.
    Reargument Denied March 29, 1983.
    Petition for Allowance of Appeal Denied June 24, 1983.

      James Edwin Beasley, Philadelphia, for appellant.
    David H. Marion, Philadelphia, for Field, appellee.
    Gregory M. Harvey, Philadelphia, for Parry, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from two Orders of the Common Pleas Court of Philadelphia dated January 9, 1981, granting summary judgment in favor of appellees Lloyd George Parry (Parry) and Field Communications (Field). Appellant Braig filed a complaint on April 21, 1980, alleging a defamation action against Parry and Field.

Parry was at all times relevant to this lawsuit an Assistant District Attorney and Chief of the Police Misconduct Unit of the District Attorney’s Office of Philadelphia County. Field Communications is a corporation which owns WKBS-TV, Channel 48. WKBS-TV 48 “published” a television program entitled “On Target—The Bowe Case”, which was taped on September 10, 1979, broadcast on September 23, 1979, at 11:30 p.m., and rebroadcast without change on September 29, 1979, at 10:00 a.m. Parry participated in the program representing the Police Misconduct Unit of the District Attorney’s Office. The program concerned the trial of Officer Thomas Bowe, who had been charged with the murder of a 19-year-old Philadelphia resident, Cornell Warren. This trial attracted a significant amount of public debate and generated an equal amount of controversy due to the fact that there had been a number of incidents of alleged excessive use of force by police officers against blacks. Officer Daryl Bronzeill, Bowe’s partner, was charged with recklessly endangering the life of Warren, as well as simple assault and aggravated assault. Both cases were prosecuted by Robert Campolongo, an Assistant District Attorney who served in the Police Misconduct Unit under the supervision of Parry.

Appellant, a Judge in the Court of Common Pleas of Philadelphia County, presided at the trial of Officer Bronzeill. The trial was aborted when appellant, on his own motion, declared a mistrial on the ground of “intentional prosecutorial misconduct”. Officer Bowe was acquitted by a jury in a trial before Judge John Geisz.

The 30-minute television program at issue was moderated by Brahin Ahmaddiya, who had been serving as moderator and associate producer of the regularly scheduled weekly “On Target” programs. The “On Target” program had been presented by Channel 48 for a number of years. It was designed to provide a forum for serious discussion by knowledgeable panelists concerning minority-affairs matters of current public interest.

Ahmaddiya and Leon Haines, an employee of Channel 48 and producer/director of “On Target”, selected the participants for the program, which was approved for broadcast by Martin Jacobs, Channel 48’s manager of news and public affairs. Originally, Ahmaddiya was to have three guests on the show: Benjamin Johnson, a prominent black criminal defense attorney who had represented Cornell Warren’s family, Campolongo, and Parry. Campolongo, however, could not attend. Therefore, the on-camera participants were Ahmaddiya, Johnson, and Parry. In accordance with normal station procedure, no script or list of questions was prepared in advance.

The program centered upon the prosecution of Officer Bowe. As the panelists discussed the case, Johnson was critical of the prosecutorial style of Campolongo, the Assistant District Attorney who prosecuted both cases, and was particularly critical of the decision to have Campolongo prosecute the Bowe case after the Bronzeill prosecution had been thrown out by Judge Braig for Campolongo’s prosecutorial misconduct. To underscore this point, Johnson quoted a statement critical of Campolongo which had been made by Judge Braig during the Bronzeill trial. The following colloquy then occurred:

Parry: I was going to say that if you want to use Judge Braig’s statement, you know, you are opening up a whole other area. In fact, it was a whole other case in terms of the presentation that was made to the court. Judge Braig is no friend of the police brutality unit. I don’t care who we sent in to try that case, in my opinion, that case was going to get blown out.
Ahmaddiya: Okay, we have to ask this question— Johnson: This is the second time, no matter which judge they have, they accuse the judge of blowing the case out. Parry: Judge Geisz didn’t blow the case out.

This colloquy took approximately thirty seconds of the thirty minute program. It came near the show’s end as Ahmaddiya was preparing to summarize and close the program.

The videotaped program was broadcast as scheduled on September 23, 1979. A day or two later appellant telephoned Kenneth T. MacDonald, then Vice President and General Manager of Channel 48. Appellant stated that he had been told that an objectionable reference to him had been made on the On Target program which had aired the previous Sunday. Appellant said he had not seen the program and asked for a copy of the transcript. MacDonald explained that a transcript had not been made, but told appellant he could send his secretary to the station so that she could watch the program and write down any statement concerning him. Judge Braig said that he understood the program was to be rebroadcast. MacDonald acknowledged that it was scheduled to be aired again on the coming Saturday. MacDonald offered to view the program tape and call the appellant the next day.

MacDonald instructed a member of the station’s crew to make a cassette tape of the program. The next day, MacDonald viewed the tape with Joseph R. Weber, the station’s Program Manager. Although MacDonald did not know exactly what he was looking for, in his words, “... when the judge’s name was brought up, we played it back a couple of times and went over it.” MacDonald subsequently viewed the program by himself. On September 27, 1979, Judge Braig called MacDonald. MacDonald told Braig that he had found nothing objectionable on the tape. He then said he would have the tape cassette of the program hand-delivered to the Judge. MacDonald verified that the program was going to be rebroadcast on September 29, 1979. Instead of hand-delivering the tape, the tape was mailed. Judge Braig did not receive it until Monday, October 1, 1979.

The lower court held that the words complained of by Judge Braig are capable of a defamatory meaning. The lower court also held that no absolute privilege protected Parry as an Assistant District Attorney and that no conditional privilege protected Field. However, the lower court entered summary judgment on behalf of both defendants on the basis of its conclusion that “as a matter of law plaintiff cannot prove actual malice against either defendant.”

We first address the standard of review in this case. Recently, there has been considerable attention devoted to the standard of review applicable to a defamation action which has been disposed of by summary judgment pursuant to Pa.R.C.P. No. 1035. See Curran v. Philadelphia Newspaper, Inc., 261 Pa.Super. 118, 395 A.2d 1342 (1978), affirmed in part and reversed in part, 497 Pa. 163, 439 A.2d 652 (1981); Brophy v. Philadelphia Newspaper, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980), (petition for allowance of appeal denied). It is undisputed that, in a defamation case,

“... summary judgment should be granted only when warranted under Pa.R.C.P. No. 1035, i.e., where the evidence viewed in the light most favorable to the non-mov-. ing party, reveals an absence of a genuine issue as to the existence of actual malice as defined in New York Times Company v. Sullivan, [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ].”

Id., 281 Pa.Superior at 599, 422 A.2d at 631.

Recently, the Supreme Court of Pennsylvania, in Curran v. Philadelphia Newspapers, Inc., supra, clarified the standard of review applicable to a motion for summary judgment in a defamation action. The Court stated:

“The inquiry, therefore, is whether the evidence submitted to the court on a defendant’s motion for summary judgment would permit the plaintiff to meet the actual malice standard.
Summary judgment is proper ‘only if the evidence then before the court is such as would warrant the granting of a defendant’s point for binding instructions after trial.’ Bremmer v. Protected Home Mutual Life Insurance Company, 486 Pa. 494, 497, 260 A.2d 785, 786 (1970).” Curran, supra, 497 Pa. at 177, 439 A.2d at 659.

The Court also emphasized the applicability of the rule “[t]hat trial by testimonial affidavit is prohibited— The prohibition against reliance upon the testimonial affidavits of the moving party is derived from the famed case of Nanty-Glo Borough v. American Surety Company, 309 Pa. 236, 163 A. 523 (1932).” Id., 497 Pa. at 183, 439 A.2d at 662; See also Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979).

The Court concluded:

“We are satisfied that case law of the Supreme Court of the United States supports our adherence to the Nanty-Glo rule in this controversy over the existence of actual malice. Recently, in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), the Supreme Court ‘expressed] some doubt’ about the ‘rule’ favoring the use of summary judgment in determining whether a plaintiff has adequately shown actual malice under Times v. Sullivan.”

Curran, supra, 497 Pa. at 181, 439 A.2d at 662. Therefore, in Curran, the Supreme Court viewed the evidence in the light most favorable to the appellant and did not rely upon any of the testimonial affidavits of the moving party.

The Court, nevertheless, acknowledged that a plaintiff has a greater burden of proof in a defamation action as a result of the First-Amendment policy expressed in New York v. Sullivan, supra, 497 Pa. 180, 439 A.2d at 660. See also Opinion in Support of Affirmance by Spaeth, J. in Curran, supra, 261 Pa.Super. at 118, 395 A.2d at 1346; concurring opinion of Spaeth, J. in Brophy, supra, 281 Pa.Super.. at 604, 422 A.2d at 634; dissenting opinion by Justice Brennan to the Denial of Certiorari in Lorain Journal Company v. Milkovich, 449 U.S. 966, 101 S.Ct. 380, 66 L.Ed.2d 232 (1980).

We. note that appellant in the instant case has argued in the lower court and preserved on appeal the contention that he is not a “public figure” within the meaning of New York Times v. Sullivan and its progeny. Although appellant concedes he is certainly an elected “public official”, he, nevertheless, maintains that he is not a “public figure” and should not be required to prove actual malice on the part of the defendants, since, on September 23 and September 29, 1979, when publication was made, Bronzeill was still pending before him on post-trial motions. Therefore, the Code of Judicial Conduct would have prohibited him from publicly commenting on this case. The appellant argues that, since the underlying reasoning in New York Times v. Sullivan and its progeny is that a “public figure” has an opportunity to respond to any criticism as a result of ready access to the media, he is not a “public figure” since he was unable to respond to Parry’s statements. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 959, 47 L.Ed.2d 154 (1976); Hutchinson v. Proxmire, supra; Wolston v. Readers Digest Associations, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).

We reject this contention. In Gertz, supra, the Supreme Court rejected the previous plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which held that the New York Times privilege extended to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. The Court, in Gertz, adopted a public figure/private figure distinction and emphasized:

“More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides- to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.- And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U.S. [64], at 77, 13 L.Ed.2d 125, 85 S.Ct. 209 [at 217], the public’s interest extends to ‘anything which might touch on an official’s fitness for office ... Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.’ ” 418 U.S. at 344, 345, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.
“Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one’s reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures.” (emphasis supplied).

Gertz, supra, at 342-43, 94 S.Ct. at 3008, 41 L.Ed.2d at 807. In the instant case, Judge Braig voluntarily decided to seek public office as a Judge in the Court of Common Pleas of Philadelphia County. He, therefore, willingly accepted certain necessary consequences of that involvement in public affairs including the risk of closer public scrutiny. Presumably, Judge Braig’s decision to seek his office was also made with knowledge that he would be bound by Canon 3 A. (6) of the Code of Judicial Conduct, which prohibits "... public comment about a pending proceeding____”

As stated by the lower court:

“Nonetheless we are aware of the occupational hazards of being a Judge and we agree that ‘Judges are suppose to be men of fortitude, able to thrive in a hardy climate.’ Craig v. Harney, 331 U.S. 367 at 376 [67 S.Ct. 1249 at 1255, 91 L.Ed. 1546] (1947). We would substitute ‘persons’ for ‘men’ in today’s society.”

As stated in Gertz, supra:

“We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, wé depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide open’ debate on public issues. New York Times Company v. Sullivan, [supra].”

Gertz, supra, at 339-40, 945 S.Ct. at 3007, 41 L.Ed.2d at 805. Although the lower court held that appellant did not establish a genuine issue as to any material fact and that, as a matter of law, he could not prove actual malice against either defendant, it also concluded that Parry’s remarks constituted expressions of opinion concerning the performance of appellant’s official duties. As correctly stated by the lower court, whether a particular statement constitutes fact or opinion is a question of law. Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), Doman v. Rosner, 246 Pa.Super. 616, 371 A.2d 1002 (1977).

Although Parry’s statement does contain the qualification “in my opinion”, the entire statement is not absolutely privileged as a result of Gertz, supra.

The lower court held “in the case at bar, the court is of the opinion that these statements can reasonably be interpreted to indicate that he [Judge Braig] was biased in favor of the police and against the police brutality unit. Finally, it can also be interpreted as meaning that the case was fixed____” We agree with the lower court’s interpretation of Parry’s statement, that it is “... capable of a defamatory meaning and a jury could so find.”

However, we disagree that Parry’s remarks constituted an expression of opinion within the meaning of Gertz, supra. Concerning this point, we adopt Section 566 of the Restatement (Second) of Torts (1977), which states:

Expression of Opinion.
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
Comment b to Section 566 provides a suitable analysis regarding the types of opinion:
“There are two kinds of expressions of opinion. The simple expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s conduct, qualifications or character____ The second kind of expression of opinion, or the mixed type, is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication. Here the expression of the opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant. ..”

If the defendant states certain non-defamatory facts concerning the plaintiff, on the basis of which he expresses a defamatory opinion, Comment c to Section 566 recognizes that this “pure” expression of opinion is absolutely privileged as a result of Gertz, supra. Comment c states:

“The distinction between the two types of expression of opinion, as explained in Comment b, therefore, becomes constitutionally significant. The requirement that a plaintiff prove that the defendant published a defamatory statement of fact about him that was false (See Section 558) can be complied with by proving the publication of an expression of opinion of the mixed type, if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion. A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable this opinion may be or how derogatory it is____”

In reviewing Parry’s remarks, we are convinced that they do not constitute a “pure” expression of opinion, which would be absolutely privileged as a result of Gertz. His remarks concerning Judge Braig could reasonably be interpreted as .a simple statement of fact, e.g., “Judge Braig is no friend of the Police Brutality Unit.” However, at least, his remarks constitute a “mixed” expression of opinion made on the basis "... of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion.” See Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583, 587 (1980).

Therefore, on the basis of the foregoing, we address the issue whether appellant’s evidence, viewed in the light most favorable to the appellant, establishes a sufficient question of fact concerning the issue of actual malice so as to permit the case to proceed before a jury. We find that appellant’s evidence does present a genuine question of fact, so that a jury could find the existence of actual malice with convincing clarity as to both defendants.

It is elementary that actual malice involves a knowing falsehood or a reckless disregard of the truth or falsity of a publication. New York Times, Inc. v. Sullivan, supra. As stated in Brophy, supra,

“The rationale for this admittedly strict standard is the recognition that ‘erroneous statement is inevitable in free ■debate,, and that it must be protected if the freedoms of expression are to have the breathing space that they need ... to survive ... ’ New York Times, Inc. v. Sullivan, supra, 376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701____ This constitutional protection extends to the ‘honest utterance, even if inaccurate’ but not to the ‘calculated falsehood.’ Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964).”

Brophy, supra, 281 Pa.Super. at 602, 422 A.2d at 633. In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968), the Court stated that a “public figure” plaintiff could establish reckless disregard for truth or falsity on the basis of “sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubt as to the truth of his publication.”

With respect to defendant Parry, his remarks were not so closely related to his duties as Assistant District Attorney as to bring him within the scope of the district attorney’s privilege. While he might have been invited to appear on the television show, the purpose was to discuss the Bowe case. This did not give him the right to say whatever he wanted to say on any other subject. His statement relating to Judge Braig and the Bronzeill case had nothing to do with the program itself nor with Parry’s duties as Assistant District Attorney. Parry never asked, neither before nor after September of 1979, for the recusal of Judge Braig in the Bronzeill case. Furthermore, as pointed out by the lower court, Parry never sought any review of Judge Braig’s decision or conduct by the Judicial Inquiry and Review Board. On March 30, 1979, Parry sent a letter to Judge Braig demanding that the Bronzeill case be listed for trial, despite Judge Braig’s decision to grant a mistrial “based on intentional prosecutorial misconduct”. His letter also objected to the granting of the mistrial sua sponte.

Parry admits to the fact that Campolongo had a “problem” of being “cited for prosecutorial misconduct”. Parry testified at his deposition as follows:

Q. Well, did you find that out before or after the Bronzeill matter?
A. Well, I found out about Mr. Campolongo’s background when I assumed my duties with the district attorney’s office, which was before the Bronzeill case.
Q. Was there a case tried by Mr. Campolongo which resulted in a reversal because of his conduct in Court?
A. I’m sure there was.
Q. What do you mean, you are sure there was?
A. Well, yes.
Q. Was there more than one case?
A. Yes.
Q. Did you discuss this with Mr. Campolongo?
A. Yes.
Q. Before or after the Bronzeill matter?
A. Before Bronzeill.
Q. And how many cases do you understand he had. been cited either by a trial judge or an appellate judge for prosecutorial misconduct?
A. I don’t know about citations by trial judges. I know of one appellate decision and possibly another appellate decision.

More importantly, in an apparent attempt to justify his remarks concerning Judge Braig, Parry explained that he had conducted a “survey” because he had “... wanted to find out if Judge Braig would be a fair and impartial judge in the case.”

The only other “police brutality” case in which Judge Braig presided was Commonwealth v. Judge and Salamo, in which Judge Braig found both defendants guilty. On the basis of the post-trial motion of subsequently-appointed counsel, Judge Braig granted a new trial based upon Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) (concerning the issue of ineffective assistance of counsel). He did so following his denial of original counsel’s post-trial motions, and he stated on the record his disagreement with Mabie. This case was tried two years before Parry came to Philadelphia, and Parry admits that he never read the transcript.

Parry claims that he consulted with assistant district attorney Harry Spaeth, who tried the Salarno-Judge case. Parry concedes that he did not know that post-trial motions were filed by original trial counsel and denied by Judge Braig. Parry admits that he did not know if any appeal was taken by the district attorney’s office or if Judge Braig was affirmed by the Superior Court. Parry admits knowing that the case had been retried and that the defendants had been acquitted.

Concerning his discussion of Salarno-Judge with Assistant District Attorney Spaeth, Parry testified at his deposition, as follows:

“And that during the course of this side bar, Judge Braig had stated to Mr. Spaeth that he, Judge Braig, was going to be attending a banquet given by the Fraternal Order of Police during—it was going to be that night, which would be during the course of the trial, and did Mr. Spaeth have any objection to Judge Braig attending this banquet, especially in light of the fact that Mr. Pirillo [defense counsel for the policeman] was also going to be present.
Mr. Spaeth said that he had no problem with that, and that he had heard later that during the course of the banquet, Mr. Pirillo, who had been one of the speakers from the rostrum, had kidded Judge Braig about the fact that they had a police brutality case in progress, and that the next day, to the surprise of Mr. Spaeth, Judge Braig found Mr. Pirillo’s clients guilty, and then at some later time ruled that the conviction should be overturned or that a new trial should be granted because Mr. Pirillo had been ineffective as counsel for the defendants.”

Parry also claims that he spoke to District Attorney Rendell, who never tried a case before Judge Braig. Rendell never indicated that he believed that Judge Braig was biased in favor of the police. Rendell personally told Judge Braig in January, 1980, that Parry had indeed “gone too far” in his statements on Channel 48.

Parry also discussed Judge Braig with Campolongo, who had not tried a case before Judge Braig prior to Bronzeill. Parry also claims that he discussed Judge Braig with “many others”. However, Parry never identified any of these individuals. Judge Braig conducted his own independent inquiry of three assistant district attorneys, who tried the greatest number of cases before him, and each told Braig that they never spoke to Parry.

The only civil matter heard by Judge Braig involving police officers as parties, Brophy v. Philadelphia Newspapers, Inc., supra, was a defamation suit filed by three police officers against the Philadelphia Inquirer, which was decided prior to Bronzeill. Judge Braig granted summary judgment against the police officer-plaintiffs, which was affirmed by the Superior Court.

Finally, in a further attempt to justify his remarks concerning Judge Braig, Parry stated that he conducted an investigation into Judge Braig’s background. Appellant properly argues that Parry’s motives for this investigation, as well as the accuracy of the information he gained by it, are material to the issue of actual malice. Appellant emphasizes “... two egregious errors, which apparently were fundamental facts in Parry’s analysis leading him to a conclusion that Judge Braig was biased in favor of the police.” These errors are that Parry stated (1) Judge Braig was the campaign manager for Mayor Frank L. Rizzo; whereas, he was actually a part-time unpaid volunteer; and (2) “Mayor Rizzo had been responsible for his ascension to the bench”; whereas, Judge Braig had actually been elected to the bench in 1975.

Finally, Parry testified at his deposition as follows:

“Generally, if the matter is pending before a judge, I would consider it to be improper to comment upon the issues involved in that matter pending before the judge, yes.”

On the basis of the foregoing, we hold that there is a genuine issue which should be presented to the jury concerning Parry’s actual malice. This evidence is sufficient to permit a jury to decide whether Parry entertained “serious doubts” concerning the truth of his defamatory statement. St. Amant, supra, 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267.

Concerning Field, Judge Braig testified that he specifically told the General Manager Kenneth MacDonald that he objected to Parry’s accusing him of “blowing out” the case. Judge Braig also told MacDonald that he considered the statement an attack on his integrity. Judge Braig also testified that, when he first contacted MacDonald on September 26, 1979, MacDonald said he would be “shocked” if his employees would allow such a statement to be broadcast. Judge Braig also testified that on September 27, 1979, he again told MacDonald that he believed the words “blow out” to mean “illegal, unethical and corrupt”. MacDonald refused Judge Braig’s request to come to the station to view the tape. MacDonald admits that he offered to have a duplicate tape hand-delivered, to Judge Braig prior to rebroadcast. MacDonald admits having viewed the tape prior to rebroadcast on at least two occasions and further admits that when Judge Braig’s name was mentioned “... we played it back a couple of times and went over it”.

Appellant does not contend that he could establish actual malice on the part of Field as a result of the initial broadcast. Appellant argues that there is “clear and convincing” evidence of actual malice on the basis of what transpired between the original broadcast and the rebroadcast on September 29, 1979. Viewing the evidence in the light most favorable to the plaintiff, we agree.

A jury should decide MacDonald’s “state of mind” in deciding to rebroadcast the program. By his own account, MacDonald went over and over the tape. A jury could properly infer that he had “serious doubts” concerning the truth of the statements. Otherwise, this broadcast executive, with 30 years in the industry, would never have repeatedly reviewed the tape. A jury could find that MacDonald, as agent for Field, wanted to air the program a second time, despite “serious doubts” from his multiple viewings and from what Judge Braig had already told him concerning the truth, as well as the meaning, of the statements. A jury could also conclude that MacDonald did not want Judge Braig to view the tape prior to the scheduled rebroadcast on September 29, 1979. Accordingly, the tape was mailed, not hand-delivered, on Friday, September 28, 1979.

More importantly, during his deposition, Mr. MacDonald explained the “fairness doctrine”, which is part of the National Association of Broadcaster’s Code, as follows:

“To start with, the program most certainly should be balanced, and if there’s only one side of the view, that would be objectionable. It could well be that something that was defamatory or slanderous could have been said. I’m sure that that’s what the judge was talking about.”

MacDonald admitted that he was responsible for the overall direction of the station and that he had final responsibility for. developing station, policy. He admitted that he was the ultimate authority with respect tq editing or cancel-ling. programs to avoid the publication of untruths or slanderous remarks.

It cannot be disputed that the program “On Target—The Bowe Case”- was not “balanced” within the meaning of the “fairness doctrine”. Parry, Campolongo, and Johnson were the only invited guests. Ahmaddiya, Parry and Johnson were the only on-camera participants. Defense counsel for Bowe had not been invited. Furthermore, since the program was not intended to concern the Bronzeill case, defense counsel for Bronzeill had not been invited, and neither Judge Braig nor Judge Geisz had been invited. Finally, since the program was intended to only concern the Bowe case, it is apparent that Parry’s comments concerning Judge Braig and the Bronzeill case were incidental, unplanned, and unnecessary to the theme of the program.

Under these circumstances, a jury should decide MacDonald’s “state of mind” in deciding to rebroadcast the program over Judge Braig’s objection. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

Finally, under the circumstances of- this case, summary judgment is not a “preferred” method of disposition. See Curran, supra. Brophy, supra. On the basis of now-famous footnote 9, the United States Supreme Court, in Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411, 422 n. 9, has expressed its "... doubt about the so-called ‘rule’ [favoring summary disposition of defamation actions]. The proof of ‘actual malice’ calls a defendant’s state of mind into question, [citation omitted], and does not readily lend itself to summary disposition, [citations omitted].”

In Brophy, supra, 281 Pa.Superior at 610, 422 A.2d at 637, Judge Spaeth correctly noted that, with respect to constitutional issues, “We are always able to permit greater freedom in this Commonwealth than do the federal courts, [citations omitted].” 281 Pa.Superior 610, 422 A.2d at 637. However, on the basis of the Supreme Court’s decision in Curran, supra, it is clear that Pennsylvania has decided not to expand the freedoms of the First Amendment in this area. We are bound by that decision.

Reversed and Remanded to the jurisdiction of the lower court with Instructions to deny defendants’ motions for summary judgment and proceed to trial by jury.

Jurisdiction is relinquished.

POPOVICH, J., files a concurring and dissenting statement.

POPOVICH, Judge,

concurring and dissenting:

I concur in the result that the majority reaches regarding appellee-Parry’s susceptibility to suit because his statements are capable of a defamatory meaning. However, I must dissent from the majority’s reversal of summary judgment as to the other appellee, Field Communications. Field Communications was merely the conduit of the information, and, under the particular circumstances here, I find that there was no showing of malice attributable to Field in its capacity as a disseminator of information to the public, notwithstanding appellant’s protestation that the information was false prior to the rebroadcast.

      . The Orders were issued by Judge Domenic D. Jerome, of the Court of Common Pleas of Delaware County, who specially presided over this case. However, venue remained in the Court of Common Pleas of Philadelphia County.

      . The trial judge correctly observed that in Pennsylvania, it is the function of the trial court, in the first instance, to determine whether "the communication complained of is capable of a defamatory meaning. If the court so finds, then it is for the jury to determine whether it is so understood by those hearing the statement.” Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971).

      . In Curran, the Court affirmed the granting of defendant's motion for summary judgment with respect to its coverage of appellant’s resignation. The Court based its decision upon the finding that appellant’s own deposition evidence established that the defendant’s reporter had received his information from a reliable source. Therefore, as a matter of law, appellant was unable to prove actual malice.

      . “Judge Braig is no friend of the Police Brutality Unit. I don’t care who we sent in to try that case, in my opinion, that case was going to get blown out____ Judge Geisz didn’t blow the case out.”

      . Judge Braig recused himself on October 29, 1979. Subsequently, Judge Gafni ruled upon the district attorney’s petition for a new trial, which was denied. No appeal was taken.

      . At this point, we note that we are summarizing this evidence in the light most favorable to the plaintiff, without deciding the truth or falsity thereof.

      . Parry did not admit that he knew the Bronzeill case was still pending before Judge Braig. However, we accept as true, for the purposes of this opinion, that the case remained before Judge Braig until October 29, 1979, when he recused himself.


author: MONTEMURO, Judge:

text:
    456 A.2d 1377
    N.H. WEIDNER, INC., a Pennsylvania Corporation v. Jack BERMAN and Joanne D. Berman, his wife. Appeal of Joanne D. BERMAN.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed Feb. 18, 1983.
    Petition for Allowance of Appeal Denied May 31, 1983.

      Stephen J. Harris, Pittsburgh, for appellant.
    Steven H. Wyckoff, Pittsburgh, for appellee.
    Before ROWLEY, MONTEMURO and VAN der YOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from a denial to open a default judgment, and subsequent denial of appellant’s motion for rehearing, in the Court of Common Pleas, Allegheny County.

Mr. Jack Berman and Mrs. Joanne D. Berman, his wife, as tenants, entered into a lease with the lessor, N.H. Weidner, Inc., in 1963. The lease contained a tax escalation clause which required the tenants to pay all real estate tax increases on the premises. The present suit was commenced on February 7, 1979, when appellee, Weidner, Inc., filed a complaint in assumpsit, alleging that the tenants were in default due to their failure to pay tax increases for the period from 1967-1978.

Separate appearances were subsequently entered on behalf of both Jack Berman and Joanne D. Berman. In addition, preliminary objections were filed by both. An order of court was issued on October 16, 1979, dismissing certain of the tenants’ preliminary objections and ordering appellee to file a more specific complaint. An amended complaint was filed on October 23, 1979. It was also met with preliminary objections filed by both tenants. These preliminary objections were dismissed by the court and both tenants were ordered to file an answer within twenty days of the December 10, 1979 order. This time was subsequently extended to January 22, 1980 for tenant Jack Berman, who filed his answer on January 21, 1980. Jack Berman committed suicide on March 27, 1980. His personal representative is not a party to the present appeal as no default was entered against him; only Joanne D. Berman is appealing here.

With reference to appellant Joanne D. Berman’s failure to file an answer, she alleged that it was informally agreed upon by respective counsel that she need not file until sometime after all pleadings between appellee and Jack Berman were completed. She cited no evidence in the record to support such allegation. Appellee denied that there was ever an agreement to “indefinitely” extend the time for appellant’s answer. Instead, appellee alleged that repeated telephone requests, and three written requests, one by blind post script, were made for appellant’s answer. Finally, on August 20, 1980, counsel for appellee sent a letter to both Mr. Berman’s counsel and counsel for appellant. The relevant portions of which are set forth below:

To date, I have not received an answer on behalf of Mrs. Berman. When I last spoke to Mr. Brown concerning the fact that an answer had not been filed he indicated to me that there was a possibility that he would be filing a motion to withdraw as Mrs. Berman’s counsel. To date I have not received a conformation of Mr. Brown’s intentions, nor have I received any word from Mr. Levin. I would appreciate it if you gentlemen would resolve the issues of representation concerning the above noted case. Should I note (sic) hear from either of you within the next two weeks, I will assume that I should feel free to enter a default judgment against Mrs. Berman for failure to file an answer, and will then proceed to amend the caption of this case accordingly. Obviously, I do not wish to take advantage of any confusion which has been created by the death of Mr. Berman. However, I must protect my client’s interests in connection with this suit. I look forward to your cooperation. (R. 76a, 77a)

Without further notice, a default judgment was entered against appellant on September 8, 1980. On September 16, 1980, appellant filed her petition to open the default judgment. On September 24, 1981, this petition was denied. The lower court wrote a very brief opinion citing no procedural rules. Specifically, it found that there was no valid excuse for appellant’s long delay in the face of repeated requests for action. On October 13, 1981, a motion for rehearing was also denied. Appellant then filed this appeal.

Whether to strike or open a default judgment in assumpsit is left to the sound discretion of the trial court; its decision will not be reversed absent a manifest abuse of discretion or error of law. Giallorenzo v. American Druggists’ Insurance Company, 301 Pa.Super. 294, 447 A.2d 974 (1982); Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982); Paules v. Sminkey, 290 Pa.Super. 223, 434 A.2d 724 (1981).

Regarding the applicable law, Pa.R.C.P. 237.1, effective February 1, 1980, sets forth notice requirements for the entry of default judgments. The full test of the rule is set forth below:

Rule 237.1. Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.
Note: See the provisions for special notice of Section 403 of Act No. 6 of 1974 and Rule 2984(2) before any action may be brought respecting a residential mortgage.
(c) The notice required by subdivision (a) shall be substantially in the following form:
(CAPTION)
TO: ...........
(Defendant) Date of Notice:
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE, UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
(Name of Office)
(Address of Office)
(Telephone Number)
(Signature of Plaintiff or Attorney
(Address)

Pa.R.C.P. 237.1

The language of the rule is mandatory in nature, and has been expressly held to be so in a recent decision. Giallorenzo, supra. Therefore, we must determine at the outset whether the rule was properly complied with here.

Appellant argues, and appellee essentially concedes, that appellee’s counsel here did not send notification substantially in the form set forth in subsection (c). Similarly, appellant argues, and appellee concedes, that notice here was sent only to counsel, not to both appellant and her counsel as required by subsection (a) of the rule.

The precise issue then is whether appellee took appropriate action to fall within the exception found in the latter portion of subsection (a), which contemplates written agreements for an extension of time. Judgment by default may be entered by the prothonotary without prior notice in this circumstance.

Appellee here argues that the letter of August 20, 1980, fits within the definition of a “written agreement for an extension of time” for purposes of Pa.R.C.P. 237.1(a). Appellant on the other hand characterizes this letter as an “ambiguous unilateral act by one party.”

At the time this case was argued, the issue here was one of first impression. Recently, however, this court decided the case of Giallorenzo, supra. We believe that it controls our disposition here. As it is factually similar to the case at bar, it will be discussed at length.

Giallorenzo was an appeal from an order striking a default judgment in an assumpsit action seeking recovery under a policy of fire insurance.

Suit was commenced in June 1981 when plaintiffs filed their complaint. One month later counsel for defendant entered an appearance by mailing a praecipe to the county prothonotary. A copy of the letter forwarding the praecipe to the prothonotary was mailed to plaintiffs’ counsel and contained a blind post script requesting twenty additional days in which to review the complaint.

When plaintiffs’ counsel received the copy of this letter on July 15, 1981, he responded acknowledging receipt of the copy, and indicated that his clients needed the money involved here immediately.

On September 9, 1981, nearly three months after the complaint had been filed, and nearly two months after defense counsel had requested twenty additional days in which to review the complaint, plaintiffs’ counsel again wrote to defense counsel, stating that:

Because of the pressing nature of this matter, you are hereby requested to file an appropriate answer within ten (10) days from the date of this letter before I enter a dafault judgment.

Giallorenzo, supra, 301 Pa.Super. at 296, 447 A.2d at 975.

Thereafter, without further notice, on September 22, 1981, plaintiffs’ counsel filed his praecipe for default judgment. Accompanying the praecipe were copies of the letter of defendant’s counsel requesting twenty additional days, and the letters of plaintiffs’ counsel mailed to defendant’s counsel on July 15, 1981, and September 9, 1981.

Plaintiffs’ counsel conceded that the letter of September 9, 1981, requesting defense counsel to file an answer within ten days or suffer a default did not constitute the notice required under Rule 237.1(a). What plaintiffs did seek to argue however was that the correspondence indicated an “informal agreement” for an extension of time. The court rejected this argument and stated:

... While we can accept the suggestion that the blind post script contained at the bottom of defense counsel’s letter to the Prothonotary in July 1981 constituted a request for an extension of time, we cannot conclude that the second letter of plaintiffs’ counsel dated September 9, 1981 perfected the kind of written agreement intended by the Rule. Prior to the letter of September 9, 1981, no “agreement” between counsel existed. We agree with the argument advanced on behalf of the defendant-appellee that the plaintiffs attempted to do by counsel’s letter of September 9th that which Rule 237.1 was precisely formulated to prevent. The record discloses that there was simply no “written agreement” reached between counsel specifying a time within which the answer was to have been filed, with a default occurring thereafter.
If the plaintiffs had desired to place the matter in a posture to permit a proper praecipe for default judgment, they need merely to have issued the notice required by Rule 237.1(a), in a form substantially as set forth in Rule 237.1(c), and either mailed or delivered it to both the defendant and its counsel of record. Plaintiffs chose not to do so, however, and sent the letter of September 9, 1981 which simply follows the practice prior to the new rule. (Emphasis in original)

Giallorenzo, supra, 301 Pa.Superior, at 298, 447 A.2d 975.

Applying the court’s rationale in Giallorenzo to the case subjudice, clearly there was no “written agreement.” Just as in Giallorenzo, what we have here is a letter to a party, whose responsive pleading is past due, informing that party that a default will be entered if no answer is filed within a given time period.

The explanatory note to Rule 237.1 supports our determination that the letter of August 20, 1980, does not constitute a written agreement. The note says the following in regard to “Agreements for Extension.”

A written agreement of extension need not be formal. An exchange of letters between counsel will suffice. But any agreement should be sufficiently specific to avoid argument over its terms. Many decisions deal with ambiguous extension agreements or alleged modifications of written agreements. (Emphasis ours)

Explanatory note—1979. Pa.R.C.P. 237.1. Here, appellee is arguing, solely on the basis of the letter of August 20, 1980, that there was an agreement. He does not allege that there was any exchange of letters specifying a time for answer, and the record does not indicate that any written exchange on this matter in fact took place. All that appears are requests for an answer from appellant.

We repeat the advice of the court in Giallorenzo. Since appellant’s answer here was long overdue, appellee could have had his default judgment had he issued the notice required by rule 237.1(a), in a form substantially like that set forth in subsection (c), and mailed or delivered it to both appellant and her counsel of record.

Even accepting the finding of the lower court that appellant offered no valid excuse for her failure to answer in a timely manner, we must still reverse. Here, as in Giallorenzo, the appellee’s actions simply followed the practice prior to the new rule.

As the first sentence of the explanatory note accompanying the Pa.R.C.P. 237.1 indicates, it was promulgated precisely because of a concern over, “the increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals...” Pa.R.C.P. 237.1, Explanatory Note— 1979. Had our Supreme Court been satisfied with practices prior to the rule, there would have been no need to adopt it. We will not attempt to circumvent by judicial decision here, the determination by our Supreme Court of the necessity for such a rule, which very specifically dictates the procedures to be followed.

In addition, we are satisfied that the strict and perhaps somewhat narrow interpretation given to Pa.R.C.P. 237.1 by this court both today and in Giallorenzo, supra, is consistent with certain broader principles regarding default judgments which have already been enunciated.

Foremost, is the often stated principle that “snap judgments” taken without notice are strongly disfavored by the courts. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Beausang v. Bernotas, 296 Pa.Super. 335, 442 A.2d 796 (1982). The policy behind permitting defaults was stated by the court in Kraynick:

The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

Kraynick, supra 443 Pa. at 111, 277 A.2d at 147.

Furthermore, the courts have always required strict compliance with Pa.R.C.P. 1037, the general section authorizing Judgment Upon Default or Admission. Franklin Interiors, Inc., v. Browns Lane Inc., 227 Pa.Super. 252, 323 A.2d 226 (1974); Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d 423 (1949).

As we stated at the outset, the threshold question is whether the default was properly entered in accordance with the mandatory requirements of Pa.R.C.P. 237.1. In view of our determination that it was not, we need not consider the equitable arguments advanced by the parties. The default judgment here should not have been entered, and the lower court committed an error of law when it refused to open the judgment.

Accordingly, we reverse the decision of the lower court, and remand with instructions that the judgment be opened. This court does not retain jurisdiction.