author: CIRILLO, Judge:

text:
    501 A.2d 1152
    COMMONWEALTH of Pennsylvania v. Robert L. WATTS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 18, 1985.
    Filed Dec. 6, 1985.

      Michael T. Hudock, Public Defender, Mifflinburg, for appellant.
    Graham C. Showalter, Lewisburg, for Com., appellee.

      Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Union County. Appellant, Robert Leroy Watts, was convicted of burglary and theft. Watts argued on appeal that the trial court erred in denying appellant’s request for a “corrupt source” instruction with respect to the testimony of Larry Michaels. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.

On June 25, 1982, appellant was arrested and charged with burglary, theft, and receiving stolen property in connection with an incident which occurred at Kuhn’s Brothers Lumber Company in Lewisburg, Pennsylvania. After a trial by jury, Watts was found guilty of theft and burglary. Larry Michaels, who was also charged with receipt of stolen property, testified at trial for the Commonwealth. Michaels asserted that he observed certain items at appellant’s residence the day after the robbery; that appellant admitted to Michaels that he had taken the items on a midnight adventure at Kuhn’s Brothers; and that he, Michaels, received some of the items from appellant.

Prior to summation, Watts requested the trial court to instruct the jury on a corrupt source charge in regards to Michaels’ testimony. After reviewing the testimony given by Michaels, the trial court concluded a corrupt source charge was not warranted because the witness was not an accomplice. We disagree.

“A person is an accomplice of another person in the commission of the offense if: 1) with the intent of promoting or facilitating the commission of the offense he ... (ii) aids or agrees or attempts to aid such other person in planning or committing it ... ” 18 Pa.C.S.A. § 306(c). Appellant was charged with receiving stolen property, i.e., “intentionally receivpng], retaining], or disposing] of movable property of another knowing that it has been stolen or believing that it had probably been stolen ...” 18 Pa.C.S.A. § 3925(a). It is well-established in Pennsylvania that “the test of determining if one is an accomplice of the accused on trial is whether or not he could be indicted and punished for the crime with which the accused is charged.” Commonwealth v. Hopkins, 165 Pa.Super. 561, 564, 69 A.2d 428, 430, allocatur refused, 165 Pa.Super. xxv (1949). See also Commonwealth v. Cimorose, 330 Pa.Super. 1, 478 A.2d 1318 (1984); Commonwealth v. Richey, 249 Pa.Super. 365, 378 A.2d 338 (1977); Commonwealth v. Staudenmayer, 230 Pa.Super. 521, 326 A.2d 421 (1974); Commonwealth v. Griffin, 216 Pa.Super. 410, 268 A.2d 129 (1970).

It is clear, as a matter of law, that Michaels is an accomplice under the statute and this test. Michaels’ testimony thoroughly established Michaels’ participation with Watts in the commission of the offense of receiving stolen property. Michaels testified that he first saw the stolen objects at Watts’ home the day after the robbery and he later discovered this property was stolen. Furthermore, Michaels admitted he purchased from Watts, tires taken during the burglary, aided Watts in dumping a tool box seized in the burglary into the Susquehanna River, assisted Watts in removing tools from Watts’ residence to his car and retained some of the stolen tools for himself. Based on this testimony, it is apparent Michaels facilitated the retention and disposition of the stolen property by appellant. See Commonwealth v. Ciotti, 318 Pa.Super. 549, 465 A.2d 690 (1983). In addition, both Michaels and Watts were charged with receiving stolen property. The Commonwealth contends that Michaels did not receive any stolen property or even know of such property until the day after Watts committed the acts of which he is accused. Based on this fact, appellee argues that Michaels is exempt from accomplice status. We disagree. The acts which Watts committed with Michaels subsequent to the burglary, such as removing stolen tools from Watts’ property and dumping the stolen tool box into the river, are sufficient to qualify Michaels as an accomplice. Michaels “knowingly, voluntarily, and with a common interest with [Watts] participate^] in the commission of [the] crime [of receiving stolen property.]” 21 Am.Jur.2d Criminal Law § 166 (1981).

“An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference.” Commonwealth v. Upshur, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980).

[W]hen the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.

Commonwealth v. Sisak, 436 Pa. 262, 267, 259 A.2d 428, 431 (1969) (citations omitted). At the very least, one could properly infer that Michaels was Watts’ accomplice. Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974).

The justification for the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency. Commonwealth v. Upshur, 488 Pa. at 32, 410 A.2d at 812 (1980); Commonwealth v. Thomas, 479 Pa. 34, 37, 387 A.2d 820, 822 (1978); Commonwealth v. Russell, 477 Pa. 147, 153, 383 A.2d 866, 868 (1977).

It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so.

Commonwealth v. Sisak, 436 Pa. at 265, 259 A.2d at 430 (1969) (citation omitted). Accord, Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980).

After reviewing the record, it is clear Michaels testified against Watts because he believed the Commonwealth would drop the charge against him. On cross-examination, defense counsel questioned Michaels as to whether it “[was his] understanding that if [he] testified] ... that the charges [would] be dropped against [him] in this case.” Michaels responded that “according to my lawyer he said he could work out something, yes. But there was no understanding that the charges were dropped when I walked in here.” Michaels was then questioned as to “[his] understanding of the words, ‘something could be worked out.’ ” Michaels answered, “I never had any other offenses according to my lawyer, and he said he would talk to the District Attorney, but there was nothing definite.”

By failing to instruct the jury on the corrupt source charge in the case sub judice, the trial court defeated the purpose behind the charge. Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978). “One who testifies while he is faced with criminal charges may be influenced to testify falsely by the hope of leniency, and ordinarily the defendant, on request, is entitled to have the jury so advised by an appropriate charge.” 21 Am.Jur.2d Criminal Law § 166 (1981). It is apparent Michaels “ha[d] an interest beyond that of an ordinary witness, and this interest should be called to the jury’s attention so the jury will hear the testimony with suspicion and weigh it carefully for truthfulness.” Commonwealth v. Thomas, 479 Pa. at 37-38, 387 A.2d at 822. Accord, Commonwealth v. Todt, 318 Pa.Super. 55, 464 A.2d 1226 (1983).

Thus, the jury could have reasonably inferred Michaels was Watts’ accomplice in the receipt and disposition of the stolen goods. The trial court erred in refusing to instruct the jury on a corrupt source charge. Accordingly, we reverse the judgment of sentence and remand for a new trial. Jurisdiction is relinquished.

      . Because of our disposition of this matter, we need not address appellant’s remaining contentions.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    502. A.2d 181
    COMMONWEALTH of Pennsylvania v. Timothy S. FENSTERMAKER, Edward Grey and Brent A. Smith; Call-Chronicle Newspapers, Inc., Intervenor. Appeal of CALL-CHRONICLE NEWSPAPERS, INC., Intervenor. COMMONWEALTH of Pennsylvania, Appellant v. Timothy S. FENSTERMAKER, Edward Grey, Brent A. Smith. COMMONWEALTH of Pennsylvania v. Timothy S. FENSTERMAKER, Edward Grey and Brent A. Smith. Appeal of Timothy S. FENSTERMAKER.
    Superior Court of Pennsylvania.
    Argued March 26, 1985.
    Filed Oct. 25, 1985.
    Reargument Denied Jan. 1, 1986.

      Malcolm J. Gross, Allentown, for appellant (at 1244) and for appellee (at 1245 & 1312).
    William H. Platt, District Attorney, Allentown, for Commonwealth, appellant, (at 1245) and for Commonwealth, appellee (at 1244 & 1312).
    Dianne M. Dickson, Allentown, for appellant (at 1312) and for appellee (at 1244 & 1245).
    Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       Honorable KENDALL H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

This case arises on three appeals, which have been consolidated, from an order entered in response to a motion of Call-Chronicle Newspapers, Inc., for permission to inspect and copy the affidavits of probable cause supporting the arrest warrants of defendants Timothy S. Fenstermaker, Edward Grey, and Brent A. Smith. The order provides: that the district attorney and defense counsel may within a reasonable time file with the district justice who issued the warrants an affidavit or other certified statement setting forth reasons why the affidavits should be sealed from public inspection; that if such a statement is filed, the district justice shall seal the affidavits, with leave to any interested person to appeal to the trial court; but that if no such statement is filed, the district justice shall not prohibit public inspection of the affidavits. The Commonwealth, defendant Fenstermaker, and Call-Chronicle have appealed. On the Commonwealth’s and defendant Fenstermaker’s appeals, we hold that Call-Chronicle has a right under the First Amendment to inspect the affidavits, but that this right is qualified by defendant Fenstermaker’s right under the Sixth Amendment to a fair trial. On Call-Chronicle’s appeal, we hold that the trial court’s order represents an appropriate accommodation of these respective rights. Accordingly, we affirm.

The three defendants were arrested on February 17, 1984, and charged with criminal homicide and rape. The district justice who issued the arrest warrants refused to permit Call-Chronicle to inspect and copy the affidavits supporting the arrest warrants. Call-Chronicle moved to intervene, and after the trial court granted the motion, moved for permission to inspect and copy the affidavits. On April 13, 1984, the trial court, BACKENSTOE, P.J., issued the order that we have just summarized, and these appeals followed.

In Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983), this court held that the public has a First Amendment right to attend pretrial proceedings. We found that the societal interests identified by the United States Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), as requiring public criminal trials equally required public criminal pretrial proceedings. As described by the Court in Richmond Newspapers, these interests include the “assurance that the proceedings were conducted fairly to all concerned[,] ... discourage[ment of] perjury, the misconduct of participants, and decisions based on secret bias or partiality.” Id. at 984 (BURGER, C.J., plurality). See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) (“[o]penness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (“[pjublic scrutiny of a criminal trial enhances the quality ... of the factfinding process, ... fosters an appearance of fairness ... [and] permits the public to participate in and serve as a check upon the judicial process”).

Although the United States Supreme Court has not yet definitively ruled on the applicability of the First Amendment to pretrial proceedings, several Courts of Appeals have extended the rationale of Richmond Newspapers to such proceedings. See, e.g., In Re Application of Herald Co., 734 F.2d 93 (2d Cir.1984); In Re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984); United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982); United States v. Criden, 675 F.2d 550 (3d Cir.1982). It has further been held that “there is no reason to distinguish between pretrial proceedings and the documents filed in respect to them.” Associated Press v. United States District Court for the Central District of California, 705 F.2d 1143, 1145 (9th Cir.1983). In Associated Press, the court noted that “pretrial documents ... are often important to a full understanding of the way in which ‘the judicial process and the government as a whole’ are functioning.” Id., at 1145. See also In Re Globe Newspaper Co., supra at 52 (“the public has a First Amendment right of access to pretrial proceedings setting and modifying bail, and to the documents on which bail decisions are based ...”); State v. Vincent A. Cianci, 496 A.2d 139 (R.I.1985) (press and public has First Amendment right to inspect pretrial discovery documents); but see United States v. Stoneman, 602 F.Supp. 388 (M.D.Pa.1985). On the specific issue before us, two state courts have found a First Amendment right of access to probable cause affidavits filed in support of arrest warrants. In Vermont v. Mitchell, 10 Med.L.Rptr. 2442, 2445 (Vt.Dist.Ct.1984), the court stated , that “assuming that there is a First Amendment right of access to judicial proceedings in general, it follows logically that documents relating to those proceedings should likewise be accessible.” See also Journal Newspapers, Inc. v. Maryland, 54 Md.App. 98, 456 A.2d 963, affd. sub nom. Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465 A.2d 426 (1983). But see Vermont v. Schaefer, 11 Med.L.Rptr. 1281 (Vt.Dist.Ct.1984).

We find the reasoning of Associated Press and of the other cases like it persuasive when applied to probable cause affidavits. As the trial court observed: “[pjublic access to the document may help provide a check upon possible violations of the fundamental requirement that a warrant of arrest is not issued upon anything less than probable cause. Also, respect for the judicial process may not fully exist if the paper upon which many criminal proceedings commence is unconditionally barred from public scrutiny... Further, access to such affidavits provides an opportunity of some public scrutiny of police conduct, activity by a branch of government that often operates outside of the general public view.” 40 Lehigh L.J. at 565-66.

The constitutional dimensions of this right do not render it absolute, however; defendant’s Sixth Amendment right to a fair trial must also be considered. Accordingly, where the First and Sixth Amendments conflict, a court may in appropriate circumstances order records' sealed. See Nixon v. Warner Communications, Inc., 435 U.S. at 598-99, 98 S.Ct. at 1312. Here, the trial court recognized that if Call-Chronicle exercised its First Amendment right of access to the affidavits, it might deny defendant his Sixth Amendment right to a fair trial by generating pretrial publicity revealing “prior criminal records, alleged statements or confessions of the accused, or other information which could be inadmissible at trial.” 40 Lehigh L.J. at 563. The court nevertheless properly rejected the Commonwealth’s and defendant’s argument that this possibility required permanently closing all probable cause affidavits from public scrutiny. “Though, in our constitutional scheme, Tn|o right ranks higher than the right of the accused to a fair trial’, ... speculative threats to that right have never been sufficient to overcome ... First Amendment rights....” United States v. Martin, 746 F.2d 964, 972 (3d Cir.1984) (quoting Press-Enterprise Co. v. Superior Ct., supra). In many circumstances, pretrial publicity can be effectively countered by change of venue, voir dire, or jury instructions. See, e.g., United States v. Criden, 675 F.2d at 562.

We are satisfied that the procedure provided by the trial court in its order will not only further open judicial process, Commonwealth v. Buehl, supra, but will also protect defendant’s Sixth Amendment right to a fair trial. Both the prosecutor and defense counsel may, on a showing of good cause, have the affidavits in support of the arrest warrants sealed. Experience may show that the trial court’s order should be modified to provide specific time limits, for example, that upon issuance of an arrest warrant, the affidavits in support of the warrant shall remain sealed for 60 hours after defense counsel has been appointed or retained, but shall be open to public scrutiny if within that period neither the prosecutor nor defense counsel files a certified statement setting forth reasons why the affidavits should remain sealed. We think, however, that we may leave such possible modification to the discretion of the trial court, which has demonstrated its awareness of the necessity to protect both the public’s and the defendant’s rights.

Affirmed.

      . The trial court based its order, if not principally at least in important part, on its conclusion that there is a common law right to inspect and copy public documents. We do not base our decision on this ground. While we acknowledge "that the courts of this country recognize a general right to inspect and copy public documents and records, including judicial records and documents,” Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), we find that under Pennsylvania law the scope of the common law right to inspect public records is unclear. See Wiley v. Woods, 393 Pa. 341, 349-50, 141 A.2d 844, 848-49 (1959) (collecting cases).

      . The trial court suggested that the issue of Call-Chronicle’s right of access to the affidavits may be moot because Call-Chronicle may have already obtained the information in the affidavits. The court decided, however, that the issue should nevertheless be decided on its merits because it was " ‘capable of repetition yet evading review.' ” Commonwealth v. Fenstermaker, 40 Lehigh L.J. 557, 558 (1984) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). We agree.

      . In Press-Enterprise, the Court held that the First Amendment guaranteed a public voir dire but implied that the voir dire was part of the trial itself. See also Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (defendant’s Sixth Amendment right to public trial extends to suppression hearing).

      . We recognize that there is some dispute whether supporting affidavits are actually filed in Pennsylvania. On this issue we adopt the analysis of the trial court, see 40 Lehigh L.J. at 560-62, but in any event, probable cause affidavits are unquestionably pretrial documents. Contrary to defendant’s contention, the Criminal History Record Information Act, 18 Pa.C.S. § 9101 et seq., which prohibits the release of certain information, does not bar access to the affidavits, for it expressly does not apply to "any documents, records or indices prepared or maintained by or filed in any court of this Commonwealth, including but not limited to the minor judiciary.’’ 18 Pa.C.S. § 9104(a)(2).

      . We do not read Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert, denied, Pennsylvania v. Pierce, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973), as barring public access to affidavits. In Pierce the Court was principally concerned with inflammatory statements by the police and district attorney.

      . Like the trial court, we choose not to provide “a detailed list of all of the circumstances warranting the limitation or denial of public ac-cess____ Each case may present its own unique factual situation affecting the decision of the issue of access.” 40 Lehigh L.J. at 564, n. 3.


text:
    502 A.2d 185
    William C. FENSTERMAKER, Appellant, v. Anna Lue A. FENSTERMAKER.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Nov. 8, 1985.
    Reargument Denied Jan. 16, 1986.

      Marc S. Fisher, Easton, for appellant.
    Michael P. Shay, Bethlehem, for appellee.
    Before CAVANAUGH, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

On February 20, 1981, a divorce was granted to the parties to this action. On July 25, 1983, appellee filed a petition to amend the divorce decree. Appellee’s petition was granted. On November 20, 1984, the trial court ordered that the petition be treated as a petition to open the divorce decree for purposes of amending the divorce decree. The court retained jurisdiction over the ancillary economic claims. Appellant asks this Court to find that the divorce decree should not be opened. He raises two claims for consideration in support of his position.

(1) The lower court erred in treating and granting appel-lee’s petition to amend the divorce decree as a petition to open where no order of bifurcation was entered.
(2) The lower court erred in treating and granting appel-lee’s petition to amend the divorce decree as a petition to open where the petition was filed two and one-half years after the entry of a decree in divorce in the absence of establishing fraud.

We find that the trial court erred, not in exercising its equitable power, pursuant to the power vested in it by the Divorce Code, 23 P.S. § 401(c), but in electing to treat the petition to amend the divorce decree as a petition to open, rather than as a petition to vacate the divorce decree. We therefore modify the trial court’s order to correct this error and affirm. See 42 Pa.C.S. § 706.

In the instant case the parties were both represented by counsel at all stages of the proceedings. Counsel for the parties had attempted to resolve the marital property issues prior to the entry of the divorce decree. The record reveals that communication between the parties’ respective attorneys continued during the period from August 12, 1980 until the entry of the divorce decree.

The intention of the appellant to continue negotiating a property settlement was clearly communicated to appellee on February 9, 1981, prior to the entry of the divorce decree. In response to a letter from appellee on December 23, 1980, counsel for appellant stated that he would make certain concessions. At the conclusion of the letter, appellant’s counsel stated:

Very shortly we will be filing a motion asking the court to enter a Decree in Divorce under the provisions of Section 201(d) of the divorce code. Needless to say, that should not interfere with the other items prayed for in the divorce complaint, and if we cannot work it out, then, of course, a Master can be appointed for those purposes. However if we can owrk it all out, fine. I will send you a letter giving you five day’s notice of the date that I will be presenting the motion for the granting of the divorce, which notice would be given pursuant to the rules of procedure in Lehigh County.

Relying on the pattern of continous negotiation prior to the entry of the decree in divorce, appellee did not file exceptions nor take any appeal from the divorce decree.

A conference was held on March 27, 1981, at which time the parties were under the impression that an agreement had in fact been reached. However, a dispute subsequently arose and no agreement was reached. Appellant thereafter ceased negotiating with appellee.

On July 25, 1983 appellee filed a petition to amend the divorce decree, in order that the court could resolve the issues of equitable distribution, alimony, counsel fees and costs. The trial court resolved the economic issues, thereby rejecting appellant’s argument that appellee had waived all claims pursuant to Pa.R.C.P. 1920.31(c) and 23 P.S. § 401(j).

In the opinion of the Honorable James Knoll Gardner, the trial court opined:

At first blush husband’s argument seems to have merit. However, a close reading of the act discloses that the equitable powers of the court survive the entry of the Divorce Decree. Section 401(c) grants the court power to issue orders “which are necessary ... to effectuate the purposes of this act ...” Section 102 of the Divorce Code provides:
(a) ... it is hereby declared to be the policy of the Commonwealth of Pennsylvania to: ...
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
(b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent. (Emphasis added).
If the purposses of the act include effectuating economic justice concerning property rights and alimony between divorced parties, the equitable powers given to the court to effectuate these purposes must survive the divorce decree.

Appellant contends that the trial court erred in treating and granting appellee’s petition to amend the divorce decree as a petition to open. We will address this issue first as it is dispositive of the present appeal.

The Divorce Code confers on the courts broad equitable power in the interests of justice in matrimonial cases. The Code specifically provides:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue ... orders which are necessary to protect the interests of the parties or to effectuate the purposes of this Act, and may grant such other relief or remedy as equity and justice require against either party ...

23 P.S. § 401(c).

Section 401(c) is identical with Section 601(2) of the Joint State. Government Commission (JSGC) report issued in June, 1961, recommending a new Marriage and Divorce Code. § 601(2) was

[i]ntended to give emphasis to the equity power and jurisdiction of the court and to make sure that it has effective power to deal with any problem which arises during the course of litigation, even if a third party is involved.

JSCG Comment, at 121, quoted in Jack A. Rounick, Pennsylvania Matrimonial Practice, § 18.6 (1982) (emphasis supplied). It is clear that § 401(c) “gives the courts below power to ... effectuate the purposes of the Divorce Code, one of which was to give divorced persons economic justice.” Lazovitz v. Lazovitz, 307 Pa.Super. 341, 351-352, 453 A.2d 615, 620 (1982). See also Mayhue v. Mayhue, 336 Pa.Super. 188, 485 A.2d 494 (1984).

The procedure for the exercise of this equitable power was explicitly provided for by the drafters of the Divorce Code. 23 P.S. § 602 provides:

Opening dr vacating divorce decrees
A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

The section places limitations in terms of the time period in which the divorce decree can be opened or vacated. For a petition to open, the motion must be made within thirty days for intrinsic fraud or new evidence. For a motion to vacate, the petition must be filed within five years where the attack is based on extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record.

The distinction between extrinsic fraud, i.e., fraud which relates to a collateral matter a consequence of which is to prevent a fair hearing, and intrinsic fraud, i.e., a matter relating to the adjudication of the judgment, was defined by the court in McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920):

By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there: Pico v. Cohn, 91 Cal. 129. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462.

Accord, McFadden v. McFadden, 91 Pa.Super. 301 (1927); Powell v. Doyle, 77 Pa.Super. 520 (1921). Compare the following cases, all of which were decided prior to the effectiveness of 23 P.S. § 602: Roach v. Roach, 275 Pa.Super. 320, 418 A.2d 742 (1980) (The Court recognized the equitable nature of a petition to open a divorce decree in circumstances where neither appellee nor her attorney were present at the hearing. Moreover, the record indicated that notice of the filing of the Master’s report was sent only to appellee at a Georgia address where the complaint had been served and returned, marked “unknown.” The Court exercised its equitable power to open the divorce decree, reasoning that appellee’s lack of notice invalidated any claim that she “waited too long to file her petition to open the decree.”); Teriberry v. Teriberry, 210 Pa.Super. 54, 232 A.2d 201 (1967) (The Court opened a divorce decree to afford the wife an opportunity to present her case. The wife had requested a continuance, because her attorney was unable to appear, pursuant to her attorney’s instruction to her. She was under the impression that a further hearing date would be scheduled. The Court exercised its equitable power to open the case for “the wife is entitled to her day in court”.); Buchner v. Buchner, 207 Pa.Super. 322, 217 A.2d 861 (1966) (The Court noted the difference between a petition to open a divorce decree and a petition to vacate; namely, the former must be within “term time” while the latter within a reasonable time after knowledge.); Tanis v. Tanis, 206 Pa.Super. 213, 217, 213 A.2d 102, 105 (1965) (The Court held that a petition to open a divorce decree should only be granted “on the grounds of extrinsic fraud, which means conduct by the prevailing party which has prevented a fair submission of the controversy”.); Contakos v. Contakos, 204 Pa.Super. 445, 450, 205 A.2d 619, 621 (1965) (In a petition to open a divorce decree, intrinsic fraud cannot be raised “after the expiration of the term in which the decree was entered.” Quotations omitted); McLaughlin v. McLaughlin, 199 Pa.Super. 53, 56, 184 A.2d 130, 132 (1962) (“[I]t is well settled that a divorce decree can be vacated or stricken off only for a defect apparent on the face of the record. Where new evidence relating to the cause of action must be introduced in order to sustain the attack, the decree should not be vacated or set aside but should be opened.” (quotations omitted)); Blair v. Blair, 195 Pa.Super. 406, 171 A.2d 854 (1961) (The Court recognized the equitable nature of a petition to open a divorce decree but declined to do so in that appellant had been afforded notice of the decree and had an opportunity to enter a defense.); Wisecup v. Wisecup, 190 Pa.Super. 384, 391, 154 A.2d 332, 335 (1959) (The Court declined to open the decree in divorce, finding that appellant failed to show “extrinsic fraud promptly complained of after its discovery”.); Magistro v. Magistro, 182 Pa.Super. 487, 127 A.2d 758 (1956) (The Court refused to open a divorce decree after eight years and the death of the husband.); Wisor v. Wisor, 175 Pa.Super. 233, 239, 103 A.2d 498, 501 (1954) (The Court enunciated the distinction between a petition to vacate and a petition to open. “The former are based on fatal defects apparent on the face of the record, while petitions to open concern other matters associated with the decree or judgment, or those upon which the decree or judgment is based, in other words, the merits of the controversy ending in final judgment.”); Knode v. Knode, 159 Pa.Super. 210, 48 A.2d 151 (1946) (The Court stated it would not grant a petition to open which was untimely and in the absence of fraud on the respondent.). See also, Foster, Domestic Relations, 22 U. Pitts.L.Rev. 313 (1960).

Addressing this issue in Aloi v. Aloi, 299 Pa.Super. 400, 445 A.2d 815 (1982), the Court did not find an abuse of discretion by the trial court in refusing to re-open the Master’s hearing. The trial court reasoned that although the appellant had petitioned for a continuance which had been denied, in light of counsel’s failure either to appear before the Master or send a replacement, appellant proceeded at her peril by failing to attend the Master’s hearing. The essential element was that both appellant and counsel had been notified of the hearing. But see Roach v. Roach, supra, Deussing v. Deussing, 224 Pa.Super. 525, 307 A.2d 382 (1973), and Teriberry v. Teriberry, supra, where the petitioner had not been afforded a day in court. Where both parties had notice of the proceeding, albeit appellant chose not to appear, alleged insufficiency of the evidence will not be considered as extrinsic fraud. Buchner v. Buchner, 207 Pa.Super. 322, 217 A.2d 861 (1966).

A party to a collusive agreement cannot be found to have any justification for either opening or vacating a divorce decree, showing neither intrinsic nor extrinsic fraud. We hold that “[t]he term collusion implies an agreement to which the husband is necessarily a party, and he is therefore in no position to seek equitable relief.” Tanis v. Tanis, 206 Pa.Super. 213, 218, 213 A.2d 102, 105 (1965). Extrinsic fraud has been found where a party assumes a residence merely in order to meet jurisdictional requirements. McLaughlin v. McLaughlin, 199 Pa.Super. 53, 184 A.2d 130 (1962), quoting Wisor v. Wisor, 175 Pa.Super. 233, 103 A.2d 498 (1954), and Cortese v. Cortese, 163 Pa.Super. 553, 63 A.2d 420 (1949). The Court in McLaughlin, however, noted that

[i]f an unsuccessful party to an action has been prevented from presenting his case by fraud or deception practiced on him by his opponent, as by keeping him in ignorance of the proceeding, an order to set aside the decree and open the case for a new and fair hearing should be affirmed.

Id., 199 Pa.Superior Ct. at 57, 184 A.2d at 132 (quotations omitted).

In Beamer v. Beamer, 330 Pa.Super. 154, 479 A.2d 485 (1984), the Court distinguished the case where one party was precluded from raising an issue due to the “fraudulent” representation of the other, from the situation where a party seeks to “relitigate” an issue after both parties to the action have been afforded a day in court. The Court declined to find intrinsic fraud sufficient to warrant opening a divorce decree where the petition required a “redistribution” of the true value of the real estate previously valued and equitably distributed by the court.

The property in issue in Beamer had been destroyed by fire subsequent to the entry of the divorce decree. Appellant had the premises insured for a greater value than the value determined by the Master. The insurance policy was in the name of the appellee only.

Both parties, appellant’s witness, and appellant’s trial counsel all testified that the focus of the Master’s hearing was whether the real estate was marital property. Appellant did not except to the amount of her distribution, which leads us to believe that she was satisfied with that amount. Had it not been for the fire and the resulting realization that the real estate was insured for $20,000 more than the court-determined value of the property, appellant would probably have never questioned the amount of the distribution.

Id., 330 Pa.Superior Ct. at 164, 479 A.2d at 490.

However, the appellant had permitted her personal property to remain in the marital home, at appellee’s request, to facilitate the sale of the property. The personal property was destroyed in the fire. The Court still declined to find “that opening the divorce decree is the correct solution to appellant’s personal property problems.” Id., 330 Pa.Superior Ct. at 160, 479 A.2d at 488. Instead, exercising its broad equitable powers, the Court imposed “a constructive trust on the insurance proceeds representing appellant’s interest in those proceeds ...” Id. Appellant argued in Beamer that the court should exercise its equitable power to open the divorce decree to redistribute the marital property award. The Court rejected this view based on its holding that the parties had effectively litigated the issue.

Given the issue raised by appellant, it is both significant and determinative that the prior case law speaks in terms of granting a petition to open a divorce decree on the grounds of extrinsic fraud; whereas a petition to vacate should be granted for intrinsic fraud. The Divorce Code reverses the grounds for relief, namely, a petition to open is to be granted if there is intrinsic fraud; whereas a petition to vacate is granted for extrinsic fraud. 23 P.S. § 602. Guided by prior case law, the trial court amended the appellee’s petition to read as a petition to open the divorce decree. The Divorce Code requires the modification to a petition to vacate due to the substantive reversal of the criteria for petitions to open and vacate decrees.

In light of the continued representations to appellee evidencing his “intention” to finalize their property settlement, the court did not err in finding extrinsic fraud upon which a petition to vacate the decree could be granted. Appellee did not have the opportunity to litigate these. economic claims. The court exercised its equitable power to effectuate economic justice. 23 P.S. § 401(c).

Appellant raises a second claim of alleged trial court error. Appellant argues that the court erred in treating and granting appellee’s petition to amend the divorce decree as a petition to open where no order of bifurcation was entered.

Appellant’s argument tacitly assumes that the court cannot exercise its equitable powers to open or vacate a divorce decree without simultaneously entering an order for bifurcation, or alternatively that an order to open or vacate a divorce decree is also an order for bifurcation. This is procedurally incorrect. A petition to open a divorce decree or to vacate a divorce decree does not presuppose an order for bifurcation, nor is its propriety evaluated on the basis of the same criteria.

The procedural requirements of a motion to open or vacate a divorce decree are addressed by statute at 23 P.S. § 602; the propriety of severance of divorce and economic claims is controlled by 23 P.S. § 401(b).

The trial court’s order stated:

AND NOW, February 20,1981, the Court enters a Decree in Divorce, divorcing and separating the Plaintiff, William C. Fenstermaker, from the bounds of matrimony heretofore contracted with the Defendant, Anna Lue Fenster-maker, pursuant to Section 201(c) of the Divorce Code.
IT IS FURTHER ORDERED that the court retains jurisdiction of the following claims for which a final Order has not yet been entered: alimony, alimony pendente lite, equitable distribution of marital property, counsel fees and costs.

The appellant contends that the court had simultaneously opened the divorce decree and bifurcated the economic claims from the divorce claims.

It is well established that the Divorce Code permits the severance of divorce claims from economic claims.

Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

23 P.S. § 401(b).

Moreover, the Pennsylvania Rules of Civil Procedure provide the court with discretion and latitude in dealing with the economic aspects of the divorce proceeding. “The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.” Pa.R.C.P. 1920.52(c). (Emphasis supplied).

The trial court has the discretion to sever the economic claims from the divorce claims. In Wolk v. Wolk, 318 Pa.Super. 311, 315, 464 A.2d 1359, 1361, (1983) (Opinion by Cirillo, J.) (footnote omitted), we explained the rationale underlying the provision for bifurcation in the Divorce Code.

It is apparent that a speedy resolution of the divorce issue is within the purview of the Code. Moreover, as the Honorable Eugene B. Strassburger III of the Court of Common Pleas of Allegheny County commented in the case of Casey v. Casey, 129 P.L.J. 42, 44 (1981):
... [T]hese goals [of the divorce code] can be accomplished only by the prompt dissolution of a marriage that is demonstrably over (as defined by the code), and allowing the parties to restructure their lives. The goals cannot be accomplished by tying the parties to a dead marriage while all of the conflicts and time-consuming financial details are litigated—
Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party's personal life are not held hostage to economic demands. At the same time, the dependent spouse is not economically disadvantaged by the fact of the divorce being issued because support and/or alimony pendente lite are required to continue at their pre-divorce levels pending resolution of the economic matters. Klein v. Klein, 16 D & C 3d 651 (1980) (footnote omitted).

As the court noted in Mandia v. Mandia, 341 Pa.Super. 116, 491 A.2d 177 (1985), procedural missteps are readily conceivable. For example, in Mandia, the party attempted to appeal the bifurcation order. The Court clarified the proper procedure for appellant, namely to “appeal the order granting the divorce, premised as it is on the bifurcation order.” Id., 341 Pa.Superior Ct. at 119, 491 A.2d at 179. To infer the existence of an order to bifurcate in the instant case would be a “procedural misstep.”

Bifurcation is not effectuated incidentally by granting either a petition to open or vacate a divorce decree but rather deeisionally. The trial court is required, pursuant to a request by a party to bifurcate, to carefully study the case before him and evaluate the advantages and disadvantages of bifurcation on a case-by-case basis. Wolk, supra. The trial judge must review the facts of the case and not make a pro forma decision to bifurcate. Wolk, supra; see also Hall v. Hall, 333 Pa. Super. 483, 482 A.2d 974 (1984).

In the case at bar, there was no decision to bifurcate. The factors weighing in favor of bifurcation, namely, speedy resolution of the divorce issue, continuation of support and/or alimony pendente lite during the pendency of the resolution of economic claims, tax advantages and encouragement of settlement of property issues, Wolk, supra, were rendered moot by the passage of time between the entry of the divorce decree and the issuance of the order which is the subject of this appeal. The court could not effectuate the goals of bifurcation at this point in time. Thus, the court noted the order merely had the “effect of bifurcation.”

In the instant case, appellant is not appealing from an order granting a divorce, premised on a bifurcation order. Bifurcation was not ordered in this case. As a consequence of bifurcation, a party can sever economic claims from a divorce decree, requesting bifurcation of these disparate issues. In the case, sub judice, appellee neither addressed the issue of economic rights to the court nor requested bifurcation of the economic claims from the divorce. The court, therefore, exercised its equitable powers to effectuate economic justice, pursuant to the Divorce Code, 23 P.S. § 401(c), and its power under 23 P.S. § 602 to effectuate distribution of these claims.

Order modified to treat appellee’s petition as a petition to vacate the divorce decree, otherwise affirmed.

      . Rule 1920.31. Joinder of Related Claims. Child Support. Alimony. Alimony Pendente Lite. Counsel Fees. Expenses.
      (c) The failure to claim alimony, alimony pendente lite or counsel fees and expenses prior to the entry of a final decree of divorce or annulment shall be deemed a waiver thereof unless the court expressly provides otherwise in its decree. The failure to claim child support shall not bar a separate and subsequent action therefor.

      . 23 P.S. § 401(j):
      Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b). All duties, rights, and claims accruing to either of said parties at any time heretofore in pursuance of the said marriage, shall cease and the parties shall, severally, be at liberty to marry again in like manner as if they had never been married, except where otherwise provided by law.


author: DEL SOLE, Judge:

text:
    502 A.2d 192
    Reginald CHRISTIAN, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Nov. 8, 1985.
    Reargument Denied Jan. 16, 1986.

      Allen L. Feingold, Philadelphia, for appellant.
    James M. Marsh, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and BECK, JJ.
   DEL SOLE, Judge:

This is an appeal from an Order granting Appellee’s Petition to Enforce a Settlement and award of reasonable counsel fees for vexatious or arbitrary behavior towards the other party under 42 Pa.C.S.A. § 2503(9). The record indicates that at a conference on July 1, 1985, the parties met and discussed a settlement for plaintiff’s claim for medical expenses incurred in an auto accident under a No-Fault insurance policy with Allstate Insurance Company. Numerous letters were sent by Allstate to Appellant’s counsel to have his client sign a release and a request to issue an Order to Settle, Discontinue and End the claim pursuant to a settlement Allstate claimed took place at that meeting. Appellant’s counsel, on February 3, 1982, refuted the settlement by informing the defense that he did not “do business with LaBrum and Doak”. At an arbitration hearing on July 14, 1982, a second settlement was purported by Allstate to have been reached. Four letters requesting an executed release were ignored by Appellant. Allstate petitioned to have the settlement agreement enforced. Appellant filed an Answer in which the existence of a settlement was denied. The court granted that petition and awarded counsel fees on July 14, 1982.

Appellant raises two issues:

1. Whether the trial court erred in law in granting Appellee’s Motion to Enforce a Settlement, where the trial court failed to hold an evidentiary hearing and enter findings of fact on the issue of whether a settlement had occurred?
2. Whether the trial court erred at law and abused its discretion in granting Appellee’s Motion to Enforce Settlement where Appellee demanded that Appellant execute a general release, releasing Appellee from any and all claims whatsoever?

Appellant has not alleged fraud in the settlement. Instead, he claims that a settlement never took place, only an offer by Allstate which was not accepted by him. Appellant urges that the trial court erred in not conducting an eviden-tiary hearing on the matter of the disputed settlement. Citing Limmer v. County Belle Cooperative Farmers, 220 Pa.Super. 171, 286 A.2d 669 (1971) and Houston-Starr Co. v. Virginia Manor Apartments, 294 Pa.Super. 571, 440 A.2d 613 (1982), Appellant argues that a trial court cannot grant a Petition to Enforce a Settlement Agreement without an evidentiary hearing on the matter. Appellee maintains that, based on Dilliplaine v. Lehigh Valley Trust, 457 Pa. 255, 322 A.2d 114 (1974), Appellant has waived this issue since it was not raised in the court below and because the doctrine of basic and fundamental error has found disfavor with appellate courts. See also, Tagnani v. Lews, 493 Pa. 371, 426 A.2d 595 (1981); Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 23 n. 5, 473 A.2d 584, 588 n. 5 (1984). However, as stated in Limmer, it is for the trial court to hold a hearing on the existence of the settlement as a matter of judicial procedure to resolve disputed issues and not at the request of one of the parties. This Court found:

As much as this Court, as well as the court below, favors the settlement of pending litigation, we must nevertheless be careful that in our efforts to clear the court calendar we do not omit the appropriate judicial procedures which not only safeguard the rights and interests of all the parties involved but which protect the court below and prepare the case for intelligent review by the appellate court.
Limmer, 220 Pa.Super. 171, at 173, 286 A.2d 669, at 670.

In the Limmer case, defendants filed a Petition to Enforce a Settlement, and plaintiffs filed an Answer denying the existence of any agreement because his behavior amounted to a rejection of the offer. Without a hearing, the trial court granted the petition. On appeal, this Court reversed, holding:

Unfortunately, we cannot decide the issues thus presented to us on this appeal as no record was made in the court below on the factual issues involved. No evi-dentiary hearing was held in the matter by the court below wherein the facts relied upon by both sides were placed in evidence by testimony of the parties and their witnesses. The lower court’s order, though reviewing personal knowledge of the defendant’s offer, contains no specific findings as to the date on which the offer was made to plaintiff, and the circumstances surrounding the presentation. Limmer, 220 Pa.Super. [171,] at 172 [286 A.2d 669] at 670.

In the more recent case, Houston-Starr Co. v. Virginia Manor Apts., supra, trial proceedings were halted when the parties negotiated a settlement. Subsequently, however, a dispute as to its terms arose. Appellant petitioned to enforce a settlement under its understanding of the terms, and the court instead issued an Order relying on its personal knowledge of the terms of the settlement. This Court again reversed, finding that the court’s recital of facts contained in the Order did not take the place of a full evidentiary hearing and findings of fact.

Where the pleading raises an issue of fact relative to a purported settlement, the trial court must conduct an evidentiary hearing; and where the court fails to do so, its failure is not waived by a party’s failure to object. The court may be required to determine if an offer to settle was tendered, if it was accepted, if counsel had authority to act, the terms of the settlement and possibly other matters. This the court neglected to do. Its failure is not waived because no party requested a hearing. The matter cannot be decided without one. Appellee argues that the cases require the trial court to prepare an intelligent record for appellate review and not necessarily to hold an evidentiary hearing. Appellee claims that there is an adequate record in this case, including the “report and award” signed by the arbitrators which concluded by saying that the matter was “settled at hearing”. However, as revealed in Limmer, this does not fulfill the requirements of specific findings of fact on the record containing the date of the offer and the circumstances surrounding it. Here, the trial court made findings without a record in the face of disputed factual allegations. We must reverse and remand the case for a full evidentiary hearing on the existence of the disputed settlement. Because the counsel fees were awarded on the basis of Appellant’s “arbitrary, vexations and in bad faith behavior” toward the other party in the proceedings, which likewise could not have been determined in the absence of an evidentiary hearing, we also reverse that award.

The order of the court is vacated and the case remanded for proceedings consistent herewith.

Jurisdiction relinquished.


author: HOFFMAN, Judge:

text:
    502 A.2d 195
    COMMONWEALTH of Pennsylvania v. James TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1985.
    Filed Nov. 29, 1985.

      Norris E. Gelman, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before JOHNSON, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-51. Appellant contends that (1) the lower court erred in dismissing his petition under the doctrines of waiver and laches; (2) use of a waiver or laches doctrine to bar consideration of his PCHA claims would unconstitutionally limit his right to redress by habeas corpus; and (3) his trial counsel was ineffective in failing (a) to request an “imperfect self-defense” voluntary manslaughter jury instruction, and to object to the court’s omission thereof in its charge, and (b) to object to the prosecutor’s attempt to undermine the credibility of the “star” defense witness. For the following reasons, we find that, while the lower court erred in finding that waiver and laches barred appellant’s PCHA claims from consideration, the lower court correctly found no basis upon which to afford appellant relief. Accordingly, we affirm the order of the court below.

On September 1, 1971, appellant was arrested and charged with murder and aggravated robbery in connection with the killing of Robert Morgan. Following a March 7-14, 1973 jury trial, appellant was found guilty of first degree murder and aggravated robbery. He was sentenced to concurrent terms of life imprisonment for the murder charge and eight-to-twenty years for the robbery charge. Our Supreme Court reversed both convictions and granted appellant a new trial. Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977). On March 13, 1978, a second jury found appellant guilty of the same crimes, and again appellant received concurrent terms of life imprisonment for first degree murder and eight-to-twenty years for aggravated robbery. Our Supreme Court affirmed the judgment of sentence. Commonwealth v. Taylor, 489 Pa. 519, 414 A.2d 1012 (1980). On July 6, 1983, appellant, through present counsel, filed a PCHA petition (his first). A hearing to determine whether appellant’s petition should be dismissed due to untimeliness was held on November 28, 1984. On March 1, 1985, the PCHA court denied appellant all relief, and this appeal followed.

Appellant first contends that the lower court erred in dismissing his petition on the bases of waiver and laches. We agree. The Post Conviction Hearing Act provides that, “[sjubject to the provisions of [§ 9545(c) ], [any person who desires to obtain relief under the Act] may file a petition at any time.” 42 Pa.C.S.A. § 9545(a) (emphasis added). Section 9545(c), in turn, requires a petitioner to set forth “all ... then available grounds for ... relief” because, otherwise, “[t]he failure to raise any issue-in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.” (Emphasis added). Thus, a reading of the plain language of the Act, see 1 Pa.C.S.A. § 1921(b), compels the conclusion that a defendant’s first PCHA petition can be filed at any time following conviction.

Our Supreme Court’s decision in Commonwealth v. Do-ria, 468 Pa. 534, 364 A.2d 322 (1976), supports this result. There, the Commonwealth contended that laches precluded the defendant from challenging the validity of his conviction because he waited fourteen years before seeking relief. The Court held that laches “has no place in the criminal law. If [the defendant] can establish that his prior conviction resulted from perjured testimony, he is entitled to have that conviction overturned.” Id., 468 Pa. at 542, 364 A.2d at 326. Doria’s petition, like appellant’s here, was his first. Furthermore, we note that appellant filed his petition just over three years after our Supreme Court affirmed his convictions.

The lower court, however, relied upon Commonwealth v. Kale, 312 Pa.Superior Ct. 69, 458 A.2d 239 (1983), allocatur denied, in holding that waiver precluded it from considering appellant’s PCHA claims because the petition was untimely filed. Kale is distinguishable. There, the petitioner appealed from a lower court order denying four of his five PCHA petitions, in each of which he sought to withdraw a separate guilty plea. Kale had not appealed from the four judgments of sentence entered after each plea. This Court held that, because “[h]e ... failed completely to explain the delays, which var[ied] from 7 years, 6 months to 2 years, 10 months, in filing requests to withdraw these pleas of guilty,” a consideration of the merits of the claims asserted in his PCHA petitions was barred. Id., 312 Pa.Superior Ct. at 72, 458 A.2d at 241. Thus, Kale does not stand for the proposition that unexplained delay in filing a PCHA petition bars consideration of the claims raised therein, but rather holds that, when attempting to withdraw a guilty plea either after sentencing or collaterally, a defendant must explain any delays in filing his requests to withdraw. Indeed, the cases cited by the Kale court in support of its holding involved the filing of petitions to withdraw guilty pleas after sentencing, not PCHA petitions. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623, cert, denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 156 (1981).

Our holding today in no way affects those cases cited by the Commonwealth which hold that an unexplained delay in filing a PCHA petition is a factor to be considered in assessing the merits of the issues raised in the petition. See Commonwealth v. Hudson, 336 Pa.Superior Ct. 174, 177, 485 A.2d 487, 489 (1984); Commonwealth v. Jackson, 329 Pa.Superior Ct. 293, 298, 478 A.2d 474,- 477 (1984); Commonwealth v. Kenney, 317 Pa.Superior Ct. 175, 177 n. 1, 463 A.2d 1142, 1143 n. 1 (1983); Commonwealth v. Courts, 315 Pa.Superior Ct. 124, 134, 461 A.2d 828, 833 (1983); Commonwealth v. Strickland, 306 Pa.Superior Ct. 516, 526, 452 A.2d 844, 849 (1982), allocatur denied, We should take care, then, to distinguish between finding a petitioner’s claims meritless based, in part, on delay in filing a PCHA petition, and dismissing a first PCHA petition without considering the claims raised therein (either on their merits, or finding them finally litigated or waived under 42 Pa.C.S.A. § 9544). The latter is inappropriate. Therefore, we find that the lower court erred in finding appellant’s claims barred from consideration by laches and waiver. Thus, we turn to a consideration of the substantive issues raised in appellant’s petition.

Appellant next contends that his previous (second trial) counsel was ineffective. In reviewing a claim of ineffectiveness, we first determine whether the claim that counsel failed to pursue is of arguable merit. If it is, then we must next determine whether counsel’s particular course of action had some reasonable basis designed to effectuate the client’s interest. Even if counsel’s choice of action had no reasonable basis, “[a] finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Garvin, 335 Pa.Superior Ct. 560, 566, 485 A.2d 36, 39 (1984) (en banc) (plurality); see also Commonwealth v. Larkins, 340 Pa.Superior Ct. 56, 69-70, 489 A.2d 837, 844 (1985). Appellant has failed to meet this burden here.

Appellant’s first allegation of trial counsel’s ineffectiveness is his failure to request an “imperfect self-defense” voluntary manslaughter jury instruction and to object to the court’s omission of the defense in its charge. He argues that our Supreme Court’s decision in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert, denied sub nom. Jones v. Pennsylvania, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), mandates the granting of a new trial for cases tried under the 1939 Penal Code when a trial court refuses to so charge after such a defense request. Jones held that “a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter.” Id., 457 Pa. at 573-74, 319 A.2d at 148 (emphasis in original). But cf. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (under 1972 Crimes Code, “unreasonable belief” manslaughter charge shall be given only when requested, where offense is an issue in the case, and where evidence would reasonably support such a verdict). A defendant was so entitled regardless of whether there was evidence to support the jury charge. Commonwealth v. Jones, supra 457 Pa. at 573, 319 A.2d at 148. The charge allowed the jury, if it so chose, to use its “historically recognized mercy dispensing power” to find a defendant guilty of a lesser degree murder. Id., 457 Pa. at 572, 319 A.2d at 148.

Here, even assuming, arguendo, that this claim has arguable merit and counsel had no reasonable basis designed to effectuate appellant’s interests in his failure to insure that the court charged the jury on “imperfect self-defense,” appellant has utterly failed to establish how he was prejudiced thereby. In Jones, the Court refused to grant relief because

[i]t [was] clear ... that [the defendant] did not suffer prejudice from the refusal of such an instruction in view of the jury’s decision to ignore their right to return a verdict of second degree. There [was] not the slightest reason to believe that the jury would have returned a verdict of voluntary manslaughter out of sympathy or in recognition of factors that they may have deemed mitigating where these factors were not sufficiently compelling to cause them to elect the lesser alternative that was offered.

Id., 457 Pa. at 574, 319 A.2d at 148 (footnote omitted). The same reasoning applies with equal, if not greater, force, here. While in Jones the court charged the jury only on first and second degree murder, here the court charged the jury on first and second degree murder, voluntary manslaughter (passion), and involuntary manslaughter, see N.T. March 13, 1978 at 4.118-.125, yet the jury returned a verdict of guilty of first degree murder, id. at 4.144. Therefore, we agree with the Commonwealth that the jury did not exercise its mercy dispensing power. See also Commonwealth v. Carter, supra, 502 Pa. at 441, 466 A.2d at 1331-32 (where trial court instructed on “heat of passion,” but not “unreasonable belief,” voluntary manslaughter, and jury returned a verdict of guilty of third degree murder, no reason to believe jury would have exercised its mercy dispensing power if court charged on “unreasonable belief’). Accordingly, we find that appellant suffered no prejudice from the court’s failure to instruct on “imperfect self-defense,” and counsel cannot be deemed ineffective in failing to insure such a charge.

Appellant next alleges that his trial counsel was ineffective in failing to object to the prosecutor’s attempt to undermine the credibility of the “star” defense witness, Margaret Gates, an eyewitness to the murder in question. He points to the following exchange:

Q. Good afternoon, Mrs. Gates.
Ma’am, isn’t it true that approximately three weeks ago, you failed to respond to a subpoena to come to the District Attorney’s Office, that you talked to some people at the District Attorney’s Office, told us that you would be in and never showed up. Is that true?
A. I was subpoenaed?
Q. No, I am saying, you talked to detectives on the telephone and we asked you to come into the District Attorney’s Office to talk to us.

(N.T. March 10, 1978 at 3.49). Appellant argues that the district attorney’s office has no such subpoena power, and that, by giving the appearance that the witness was under subpoena and failed to respond to the same, the prosecution damaged her credibility. This claim is meritless.

It is true that “[n]o individual, including a district attorney or even the Commonwealth’s Attorney General has the power to issue subpoenas without statutory authority; this power is solely a judicial one in the absence of statute.” Carabello Appeal, 238 Pa.Superior Ct. 479, 483 n. 4, 357 A.2d 628, 631 n. 4 (1976) (emphasis in original). See also Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951) (Attorney General cannot issue subpoenas to witnesses to appear at his offices). Furthermore, if it was the Commonwealth’s intention to impeach Mrs. Gates, it did not use one of the accepted means of doing so. See generally A. Jenkins, Pennsylvania Trial Evidence Handbook § 17.1 at 297 (1974). Certainly there is no hint here that Mrs. Gates was in any way prejudiced or biased against the Commonwealth or had any interest in favor of appellant. See N.T. March 10, 1978 at 3.48 (witness testifying that she did not know appellant). Nor is there anything in the record to support an inference that Mrs. Gates was “hiding” something; she did give a statement to the police after witnessing the crime. See id. at 3.47-.48.

Nonetheless, the above quote belies appellant’s argument. The assistant district attorney immediately corrected himself by answering “no” to Mrs. Gates’s question, "I was subpoenaed?” An objection by defense counsel would have only further highlighted the remark. The determination as to when to interpose objections is a matter within trial counsel’s province. Commonwealth v. Norris, 305 Pa.Superior Ct. 206, 215, 451 A.2d 494, 498 (1982). Furthermore, reviewing the entire exchange between the witness and the assistant district attorney, we note that Mrs. Gates testified that she never talked to anyone at the district attorney’s office because no set arrangements were ever made for her to do so. See N.T. March 10, 1978 at 3.49-.50. We fail to see how Mrs. Gates’s credibility was damaged, or appellant’s case prejudiced, by this testimony indicating that a witness to the crime failed to speak to detectives at the district attorney’s office when there was never an appointment for her to do so. Cf. Commonwealth v. Rodgers, 472 Pa. 435, 458-59, 372 A.2d 771, 782 (1977) (questions concerning witnesses’ failure to “come forward” were proper where such failure could support an inference that the witnesses’ alibi testimony was fabricated for trial). Therefore, we cannot find counsel ineffective on this ground.

For the foregoing reasons, then, we affirm the lower court’s order denying appellant PCHA relief.

Order affirmed.

      . The underlying support for these cases is questionable. They have their genesis in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981) (opinion announcing the judgment of the court), which stated that "[t]he length of time between the occurrence of the asserted error and the filing of the petition, and the explanation for any delay,” was a factor in determining whether a hearing should be held on a second (or a later successive) petition and whether "extraordinary circumstances” exist under 42 Pa.C.S.A. § 9544(b)(2) (then 19 P.S. 1180-4(b)(2)) excusing the failure to preserve an issue for review in such later petitions. Id., 495 Pa. at 36, 432 A.2d at 186-87. The latter is completely consistent with the § 9545(c) language quoted above. Nowhere does Alexander state that a delay in filing a petition should be considered in assessing the merits of issues raised in a successive (let alone a first) petition; instead, delay is a factor to consider in determining whether issues raised in successive petitions are waived.

        . In light of our disposition of appellant’s first contention, we need not address the second.

      . The lower court considered appellant’s PCHA claims in the alternative. It found that "prior counsel competently and effectively represented [him] at all relevant times.” (Lower Court Opinion at 5).

      . Of course a charge would be required if imperfect self-defense had been an issue in this case and there was evidence to support such a verdict. As appellant candidly admits, however, in his "case there was no evidence at all of any species of voluntary manslaughter____” (Brief for Appellant at 12 n. 2).


author: ROWLEY, Judge:

text:
    502 A.2d 200
    NOBEL WELL SERVICE, INC., Appellant v. PENN ENERGY, INC.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed Dec. 13, 1985.

      Peter M. Suwak, Washington, for appellant.
    Harold V. Fergus, Jr., Washington, for appellee.
    Before BROSKY, ROWLEY and FEENEY, JJ.

       Judge John M. Feeney of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   OPINION OF THE COURT

ROWLEY, Judge:

We are required, in this appeal from an order striking the entry of a judgment transferred from the state of Ohio to Wáshington County, Pennsylvania, to determine what docket entries from the foreign state must be filed with the judgment in Pennsylvania. Since we have concluded that the trial court erred in holding that all of the foreign jurisdiction’s docket entries must be filed, we reverse.

During May and June of 1981, appellant, Nobel Well Service, Inc., serviced oil and gas wells in Ohio which were owned by appellee Penn Energy, Inc. In October, 1981, after payment for the services was overdue, appellant filed a complaint in the Common Pleas Court of Belmont County, Ohio. After discovery procedures were completed and pretrial conferences were held, appellee informed the court that it would not contest the suit. On June 9, 1983, a non-jury trial was held, the result of which was a judgment entered in favor of appellant in the amount of $49,093.91, plus interest.

On July 11, 1983, appellant transferred the Ohio judgment to Washington County, Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act [the Act]. 42 Pa.Cons.Stat. § 4306. The record shows that appellant filed an affidavit of the judgment creditor, a "Certificate of Judgment for Lien upon Lands and Tenements”, and a certified copy of a document entitled, “DOCKET ENTRY”, which was signed by the Honorable Harold B. Thomas, Judge of the Court of Common Pleas of Belmont County. Appellant then issued execution against oil and gas leases owned by appellee in Washington County.

According to the March 21, 1984 Opinion of the trial court, the following then transpired:

In response [to appellant’s published notice of execution, appellee] petitioned the Washington County Court of Common Pleas to stay the execution set for December 2, 1984.[] On November 29, 1984,[] the Honorable Thomas D. Gladden of this court granted the stay until January 6, 1984, with the proviso that all additional costs be assessed against the [appellee] and that no further extensions be granted.
During motions court on December 29, 1983 [appellee] presented a petition to strike the Ohio judgment for [appellant’s] failure to comply with 42 Pa.C.S. § 4306 and to stay the execution set for Jan. 6, 1984.
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To delineate the law governing the issue of whether the failure to transfer all the docket entries with a copy of the foreign judgment was fatal to the transfer, the court directed the attorneys to file briefs by January 6, 1984.
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The court ... informed the attorneys that a decision based upon the briefs and argument would be rendered by January 16, 1984____ With reference to the return date, it was the impression of the court that all the parties understood that in the event the petition to strike was denied, January 20, 1984, would be the date the parties returned to consider the ramifications of the denial.

The court entered an order on January 17, 1984, granting appellee’s petition to strike, holding that “the judgment as entered in this Court is not in compliance with the procedural requirements of Sec. 4306(b) in that the docket entries and some of the outstanding documents were not properly certified____” Appellant’s timely exceptions were denied and appellant now appeals from the January 17, 1984 order.

A petition to strike a judgment may be granted only when a fatal defect appears on the face of the record. Ruehl v. Maxwell Steel Co., Inc., 327 Pa.Super. 39, 474 A.2d 1162 (1984); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). Moreover, appellate review of a trial court’s decision to strike a judgment requires that we determine whether the trial court abused its discretion. “[The trial] court abuses its discretion when it misapplies the law or when a manifestly unreasonable, biased, or prejudiced result is reached.” Gir-ard Trust Bank v. Remick, et ux., 215 Pa.Super. 375, 377, 258 A.2d 882, 884 (1969), citing Mielcuszny, et ux. v. Rosol, 317 Pa. 91,176 A. 236 (1934). Accord, Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980).

On appeal, appellant presents three issues for our review. Appellant’s first issue is stated as follows:

1. Does Pennsylvania’s Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. Section 4306(b) require the filing of all docket entries?

The fatal defect in the judgment, as viewed by the trial court, was appellant’s failure to comply with the statutory requirements for transferring a foreign judgment to Pennsylvania, as set forth in section 4306 of the Act. Specifically, the trial court found that appellant failed to comply with section § 4306(b) because it failed to transfer all of the foreign docket entries to Washington County.

In its brief, appellee states that “There is no question this section of the act was not complied with, as the docket entries surrounding the Foreign Judgment were not filed.” On the contrary, it is compliance with this section of the Act which is at issue: what docket entries must one file to comply with the requirement of filing “the docket entries incidental” to the judgment. (Emphasis added.)

Thus, our task, on review, is to interpret § 4306(b) of the Act to determine whether the filing of all foreign docket entries is required when transferring a foreign judgment to Pennsylvania. Section 4306(b) provides:

A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner. (Emphasis added.)

Although twenty-one of the United States have adopted a form of the 1964 version of the Uniform Act, only Pennsylvania has added the emphasized phrases in the above passage. With the exception of the emphasized phrases, § 4306(b) is identical to § 2 of the 1964 Revised Uniform Enforcement of Foreign Judgments Act, as drafted by the National Conference of Commissioners on Uniform State Laws. Coincidentally, it is the first added phrase which now requires interpretation.

As the parties have noted in their briefs, the meaning of this phrase raises a question of first impression in our appellate courts. Also, because this phrase is not found in any other state’s version of the Uniform Enforcement of Foreign Judgments Act, no other state’s courts have had reason to pass on its meaning. Appellee argues that the phrase “including the docket entries incidental thereto” requires all the docket entries from the foreign jurisdiction to be transferred to Washington County, Pennsylvania. Appellee supports its position by citing several Common Pleas Court decisions in this Commonwealth. However, those cases dealt with judgment creditors who had not filed any docket entries, rather than judgment creditors who had filed some, but not all docket entries. In addition, we note that in each of those cases the trial court cited Pa.R.C.P. 3002 as support for its position. Rule 3002, which governs the transfer of judgments from county to county within Pennsylvania, states in part that “A judgment may be transferred to another county by filing of record a certified copy of all of the docket entries in the action and a certification of the amount of the judgment.” (Emphasis added.) Rule 3002 was adopted March 30, 1960 and became effective November 1, 1960. The Pennsylvania version of the Uniform Act, was first approved on December 22, 1965 (P.L. 1157),-and reenacted on July 9, 1976, effective June 27, 1978. In comparison, Rule 3002 requires “all of the docket entries in the action” but the Act requires only that “the docket entries incidental” to the judgment be filed. The words “incidental” to the “judgment” appear to have been consciously selected for their specific import by the General Assembly, for they were chosen to be added to the Pennsylvania version of the Uniform Act, and were not part of the general Uniform Act. If the General Assembly had intended to enact the same language (and meaning) as the Supreme Court did in Pa.R.C.P. 3002, it could more clearly have done so. Thus, neither Pa.R.C.P. 3002 nor the cases cited by appellee support its interpretation of § 4306(b).

Alternatively, appellant suggests that the Act only requires the judgment creditor to transfer a copy of the docket entries which directly affect the judgment; that is, those that were filed pursuant to, or after, the entry of judgment. Appellant reasons that the requirement was added to Pennsylvania’s version of the Act so that the transferee court in Pennsylvania could be certain that after entry of the judgment in the foreign state, it had not been satisfied, levies had not accrued, or supplemental proceedings had not taken place. We agree.

In considering the actual language of § 4306(b), we note that Black’s Law Dictionary defines “incidental” as “Depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal____” See, Protective Motor Service Company, et al. v. P. U. C. and Edward J. Ring Detective Agency, Inc., Intervenor, 4 Pa. Commonwealth 75, 78, 286 A.2d 30, 31 (1971). Thus, in the statement “A copy of any foreign judgment including the docket entries incidental thereto ... may be filed in the office of the clerk of any court of common pleas of this Commonwealth”, it would appear that only the docket entries depending upon or appertaining to the judgment need be filed. Satisfaction of the judgment, liens against the judgment, and supplemental proceedings to enforce a judgment are incidental to it, for if there was no judgment, none of these things would occur and could not, therefore, be docketed. On the other hand, the filing of pleadings, motions, non-judgment orders, and proof of service are all independent pre-judgment acts which are not dependent upon the judgment.

In the instant proceedings, appellant filed a certified copy of the Ohio judgment, a certified copy of the Ohio judgment docket entry, and an affidavit of the judgment creditor in Washington County. The filing of certified copies of the judgment docket entry and all subsequent docket entries is sufficient to fulfill the Act’s requirement of filing docket entries “incidental” to the judgment. In this case, there were no subsequent docket entries, so by filing a certified copy of the judgment docket entry alone, appellant filed the docket entries incidental to the judgment. We hold, therefore, that the filing requirements of section 4306(b) have been met.

An analysis of the considerations set forth in the Statutory Construction Act, 1 Pa.Cons.Stat. § 1921(c) supports this conclusion. The National Conference of Commissioners on Uniform State Laws, the drafters of the Uniform Enforcement of Foreign Judgments Act, prefaced the Uniform Act by stating:

Court congestion is a problem common to all states. Overcrowded dockets, overworked judges and court officials, with attendant delays, inevitably tend to lower standards for the administration of justice. One of the things that contributes to calendar congestion is the Federal necessity of giving full faith and credit to the judgments of courts of other states. U.S. Const, art. IV, § 1. While there is no constitutional requirement that a debtor who has had a full due process trial in one state need be given a second full scale trial on the judgment in another state, this is the only course generally available to creditors.
The usual practice requires that an action be commenced on the foreign judgment. The full procedural requirements apply to the second action.
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This 1964 revision of the Uniform Enforcement of Foreign Judgments Act adopts the practice which, in substance, is used in Federal courts. It provides the enacting state with a speedy and economical method of doing that which it is required to do by the Constitution of the United States. It also relieves creditors and debtors of the additional cost and harassment of further litigation which would otherwise be incident to the enforcement of the foreign judgment. This act offers the states a chance to achieve uniformity in a field where uniformity is highly desirable. (Emphasis supplied.)

This statement highlights the necessity for the Act, the mischief to be remedied, and the object to be attained.

In the Federal courts, one needs only to file a certified copy of a judgment to sufficiently register it in a different district. “A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”

The expense and time required to file all docket entries from the foreign state, including those which are not incidental to the judgment itself, would not be consistent with an Act promulgated to provide “the enacting state with a speedy and economical method of doing that which it is required to do by the Constitution of the United States.” In this case, according to appellant, there are 23 pages of docket entries that precede the entry of the judgment. Although the language in question is not part of the Uniform Act, the “occasion and necessity” for the Pennsylvania version of the Act is nevertheless the same. It would be inappropriate to construe the act so as to impose costly and possibly burdensome requirements.

Appellee argues, however, that in order for the foreign judgment to be entitled to full faith and credit in Pennsylvania, it is necessary that all docket entries be filed with the judgment. The argument is that the burden is on the judgment creditor to establish that the basic due process rights of the judgment debtor were recognized and protected in the foreign jurisdiction. In order to meet that burden, the appellee asserts it is necessary to file all of the docket entries from the foreign jurisdiction.

There is no question that, in determining whether a foreign judgment is entitled to full faith and credit under the United States Constitution, U.S. CONST, art. IV, § 1, Pennsylvania may inquire into the questions of the foreign state’s jurisdiction and whether the foreign judgment was obtained in derogation of the debtor’s basic due process rights, that is, whether the debtor had an opportunity to appear and defend. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345 (1907), Higbee Estate, 372 Pa. 233, 93 A.2d 467 (1953). However, it is equally clear that a foreign judgment transferred to Pennsylvania is presumptively valid. The foreign judgment is presumed to have been entered by a court with jurisdiction to do so and that its proceedings were regular and not in derogation of the debtor’s due process rights. Contrary to appellee’s assertion, if the debtor chooses to challenge the validity of the foreign judgment, it has the burden to show a lack of jurisdiction or any irregularity in the proceedings. Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985), Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa.Super. 403, 150 A.2d 370 (1959), Commonwealth ex rel. Cronhardt v. Cronhardt, 127 Pa.Super. 501, 193 A. 484 (1937). Also see Thorn Estate, 353 Pa. 603, 46 A.2d 258 (1946). Therefore, since the Ohio judgment is presumed to be valid, there is no constitutional requirement that all of the docket entries preceding the entry of the judgment be filed in Pennsylvania in order for the judgment to be entitled to full faith and credit.

Moreover, appellee has never challenged Ohio’s jurisdiction to enter the judgment or the regularity of the proceedings conducted in Ohio. If appellant chose to make such claims, the burden was on it to raise the issue in an appropriate manner and to subsequently present evidence in support of such claims. However, it has never asserted, either in the trial court or on appeal, a lack of jurisdiction in Ohio, or a denial of its basic due process rights.

Since section 4306(b) only requires that those docket entries incidental to the judgment be filed and there is no constitutional requirement that all docket entries be filed with the foreign judgment, the trial court erred in striking the judgment.

Order reversed.

      . This document states:
      This case having been regularly assigned for trial on June 9, 1983, was heard by the Court without a Jury. The Defendant failed to appear in person or by Counsel. Upon consideration of the evidence the Court finds on the issues in favor of the plaintiff and against the Defendant. Judgment is hereby rendered in favor of the Plaintiff, Nobel Well Service, Inc., and against the Defendant, Penn Energy, Inc., in the sum of $49,093.91 together with interest thereon at the rate of 10% per annum from June 16, 1981, until paid. Defendant is further ordered to pay the costs of this proceeding.

      . The record reflects that this date is in error and should be December 2, 1983.

      . The record reflects that this date is in error and should be November 29, 1983.

      . See, UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT, 1964 Revised Act, § 2, 13 U.L.A. 178 (1964).

      . Id., 177.

      . Adler v. Krawitz, 2 Pa.D. & C.3d 491 (1974); Forehand v. Centennial Foods of Virginia, Inc., 8 Pa.D. & C.3d 794 (1978); Stewart v. Savage, 58 Del. County 534 (1970).

        . BLACK’S LAW DICTIONARY, 686 (rev. 5th ed. 1979).

      . A judgment entered in another state may be transferred to and enforced in Pennsylvania in one of two methods. The traditional method has been the commencement of an assumpsit action, the subject of which is the foreign judgment. The alternative is the statutory method delineated in 42 Pa.Cons.Stat. § 4306. Because there is a choice of methods, the word "may" is used in 4306(b) to instruct the reader as to what he or she must do if he or she elects the statutory method of enforcement. See, 42 Pa.Cons.Stat. § 4306(e).

      . UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT, 1964 Revised Act, Commissioners’ Prefatory Note, 13 U.L.A. 173-4 (1964).

      . 28 U.S.C. § 1963.

      . See, 1 Pa.Cons.Stat. § 1921(c)(1).

      . See, 1 Pa.Cons.Stat. § 1922(1).