author: BROSKY, Judge.

text:
    605 A.2d 363
    COMMONWEALTH of Pennsylvania v. Susan E. WILKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1991.
    Filed March 19, 1992.

      James N. Bryant, Millheim, for appellant.
    Andrew D. Lyons, Asst. Dist. Atty., Lewisburg, for Com., appellee.

      Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

Susan E. Wilkins takes this appeal from the judgment of sentence entered following an adjudication of guilt after a de novo hearing. The trial court adjudicated Ms. Wilkins guilty of speeding in violation of 75 Pa.C.S.A. § 3362(a)(3) and sentenced her to the payment of a fine and costs following the denial of post-verdict motions.

Ms. Wilkins challenges her conviction in three respects. First, she contends that an “End Speed Zone” sign must be positioned at the terminus of a speed zone, which, she claims, was not the case here. Secondly, Ms. Wilkins avers that no evidence was presented concerning the proper installation of the speed timing device which was used to measure her rate of speed. Lastly, Ms. Wilkins maintains that the speed timing device was improperly utilized within five hundred feet of a speed zone sign indicating a higher speed limit. We affirm.

Ms. Wilkins was traveling through the Borough of Hartleton, Union County, on Route 45 in an easterly direction. She exceeded the thirty-five mile per hour speed limit posted for that particular stretch of Route 45. Officer Smith of the Hartleton Borough Police Department was monitoring the section of Route 45 on which Ms. Wilkins was traveling and clocked the speed of Ms. Wilkins’ automobile at forty-six point seven miles per hour. The Officer utilized a device known as Speedchek for this purpose. Officer Smith then stopped Ms. Wilkins and issued a citation charging her with violating Section 3362(a)(3) of the Motor Vehicle Code, 75 Pa.C.S.A. § 3362(a)(3). After a summary hearing before a district justice, Ms. Wilkins was adjudicated guilty of the aforesaid violation and was sentenced to pay a fine and costs. Ms. Wilkins appealed her summary conviction to the Court of Common Pleas of Union County. Following a hearing de novo, Ms. Wilkins was once again convicted and sentenced to pay a fine and costs. This appeal followed.

At issue number one, Ms. Wilkins contends that the absence of an “End Speed Zone” sign to indicate that the thirty-five mile per hour speed limit was terminating is in violation of the PennDot regulation requiring such posting. See 67 Pa.Code § 211.72. The evidence adduced at the de novo hearing revealed that although no “End Speed Zone” sign was posted on the section of Route 45 in question, a fifty-five mile per hour speed limit sign was displayed. Ms. Wilkins argues that the absence of an “End Speed Zone” sign along the highway in that area is intended to snare an unwary motorist into a speed trap because, upon sighting a fifty-five mile per hour speed zone sign, as Ms. Wilkins did in this case, the unsuspecting motorist is led to believe that the reduced speed zone (thirty-five miles per hour) has terminated, thereby permitting him/her to accelerate to a higher rate of speed. The motorist then discovers, to his/her chagrin, that, despite the presence of a fifty-five mile per hour speed zone sign, he/she is still subject to a speed check for the reduced speed (thirty-five miles per hour).

At first blush, the argument proffered by Ms. Wilkins presents an alluring case for the grant of relief. This notion is quickly dispelled, however, upon a close examination of the PennDot regulation in question. In part relevant to the case at bar, this regulation provides:

§ 211.72. Speed limits in other than work areas.
(a) * * *
(b) Posting of speed limits. Requirements for posting shall be as follows:
(i)* * *
(ii) The end of a speed limit along a highway at the point where the speed limit is being increased or decreased shall be indicated in accordance with clause (A) or (B):
(A) A Speed Limit Sign, R2-1, indicating the speed limit on the following section of highway shall be placed on the right side of the highway. The placement of this sign shall satisfy both the requirement to post the end of the previous speed limit and the requirement to post the beginning of the new speed limit if one of the following conditions is met:
(I) It has been determined through test runs that the following section of highway is safe for travel at 55 miles per hour.
(II) The maximum speed limit for the following section of highway has been established and speed limit signs are installed along that section of highway.

67 Pa.Code § 211.72. Emphasis supplied.

Ms. Wilkins, however, discounts the applicability of Section 211.72(b)( l)(ii)(A) to the matter at bar because no testimony was introduced at the hearing de novo to prove that either one of the conditions set forth in Clause (I) or Clause (II) was met. As such, Ms. Wilkins maintains that the posting of a speed zone in this case is governed, instead, by Section 211.72(b)(ii)(B), which provides, in relevant part: “At all other locations, a Speed Limit Sign, R2-1, indicating the maximum speed limit that is ending, and an End Sign, R2-9, mounted above the R2-1 sign, shall be placed on the right side of the highway.” As further support for her position, Ms. Wilkins refers this court to Section 211.72(b)(2) which reads:

Maximum speed limits established under 75 Pa.C.S. § 3362(a)(2) [relating to the establishment of fifty-five mile per hour speed limits] need not be signed except to indicate the end of a speed limit less than 55 miles per hour and the beginning of a 55 miles [sic] per hour speed limit when paragraph (l)(ii)(A)(I) [of Section 211.72] is met.

As we have noted above, Ms. Wilkins’ argument, while initially appealing, is flawed in several respects. First, at the de novo hearing, the Commonwealth introduced its Exhibit No. 3, to which counsel for Ms. Wilkins stipulated. This document was admitted into evidence as a certification from PennDot establishing a thirty-five mile per hour speed limit zone for the section of the roadway on which the Speedchek device was utilized to check the speed of Ms. Wilkins' vehicle. Therefore, on this basis, we hold that the condition of Section 211.72(b)(1)(ii)(A)(II) was satisfied here. This being so, Section 211.72(b)(2) is inapplicable because Section 211.72(b)(l)(ii)(A) provides that the condition of either Clause (I) or Clause (II) must be fulfilled. Therefore, the posting of the fifty-five mile per hour speed zone sign in lieu of the posting of a separate “End Speed Zone” sign for the thirty-five mile per hour zone satisfied the posting requirement of both the statute and the above regulation.

We will next treat Ms. Wilkins' third issue which she appears to present as an argument in the alternative.

At issue number three, Ms. Wilkins argues that the Speedchek device and the accompanying road strips were utilized in violation of 75 Pa.C.S.A. § 3368(e) because they were positioned within five hundred feet of a sign indicating a higher speed limit, i.e., fifty-five miles per hour. This statutory provision reads in relevant part as follows: “Distance requirements for use of mechanical, electrical and electronic devices. — Mechanical, electrical or electronic devices may not be used to time the rate of speed of vehicles within 500 feet after a speed limit sign indicating a decrease of speed.” Emphasis supplied. By the clear import of its language, Section 3368(e) does not permit the speed timing of a vehicle which is within five hundred feet after it has passed a speed limit sign which indicates a decrease in speed.

Ms. Wilkins does not dispute that she was driving in excess of the applicable speed limit. She did not at the trial level nor does she now on appeal deny that she was traveling through a posted thirty-five mile per hour speed limit zone. Her argument to this court is not that she was timed within five hundred feet after she had passed, in an easterly direction, a posted thirty-five mile per hour speed limit sign. She does not even contend that she was timed within five hundred feet after passing a thirty-five mile per hour speed limit sign. Were this the case, Ms. Wilkins would be entitled to relief. Instead, she attempts to apply Section 3368(e) to two different and alternative theories.

First, Ms. Wilkins alleges that the speed timing device was utilized within two hundred to three hundred feet before the approach of a sign posting an increased speed limit of fifty-five miles per hour. Her argument, in essence, is that the five hundred foot prohibition of Section 3368(e) applies in either direction (i.e., either before or after a speed zone sign) and without regard to whether the speed limit sign indicates an increase or a decrease in the speed limit for the roadway following. However, the language of the statute does not lend itself to the interpretation suggested by Ms. Wilkins. It should be apparent to anyone reading the statute that it protects a motorist only when his/her speed is timed for any distance short of five hundred feet and only after the motorist has passed a sign indicating a decrease in the speed limit. Section 3368(e) is not designed to shield a motorist who increases his speed when he/she is still within a reduced speed zone merely upon sighting an increased speed limit sign any number of feet beyond his/her immediate vantage point.

Section 3368(e) appears to serve a two-fold purpose: One, it gives a motorist traveling from a higher speed zone limit into a lower speed zone limit, after having passed a decreased speed limit sign, a five hundred foot allowance within which to decrease his/her speed in conformity with the speed limitation sign. Secondly, it guards the unwary motorist against speed traps by providing for a five-hundred foot allowance after having passed a reduced speed zone sign. Therefore, the statute does not operate to prohibit a speed check within a certain distance before a speed limit sign indicating an increased speed limit zone. It only requires that the distance traveled before a motorist may be speed checked be beyond five hundred feet of a speed zone sign indicating a decrease of speed.

The fallacy of this argument being readily apparent, Ms. Wilkins then broaches her second, alternate theory. Ms. Wilkins indicates that she was illegally timed within five hundred feet after a decreased speed limit sign (thirty-five miles per hour) facing in the opposite direction, i.e., westwardly, across the road. Ms. Wilkins’ argument in this regard is that, for the purpose of applying Section 3368(e), the direction in which the decreased speed limit sign is facing is irrelevant. The trial court, in its Opinion written pursuant to Pa.R.App.P. 1925(a), characterized this interpretation as an attempt to stand the statute on its head. We agree with the trial court’s characterization of this argument. Moreover, the position urged upon us by Ms. Wilkins flies in the face of the several regulations promulgated by PennDot, viz: 67 Pa.Code §§ 211.28, 211.30 and 211.72.

Section 211.28 of the regulations provides for the standardization of location of traffic signs and reads in pertinent part: “(a) Right-hand side. Standardization of location cannot always be attained in practice; however, the general rule is to locate signs on the right-hand side of the roadway, where the driver is looking for them." First emphasis in text; second emphasis supplied. The regulation then provides for an exception to this general rule to allow overhead signs on wide expressways, where lane use control is necessary or when no space is available on the roadside. The regulation also pennits the posting of signs in other locations which are considered to be supplementary to signs placed in normal locations, i.e., on the right-hand side of the roadway. These supplemental locations include channelizing islands, the left-hand shoulder of the road where the roadway sharply curves to the right and to the left of the roadway on a multi-lane road where traffic in the right lane may obstruct signs posted on the right side of the roadway.

Section 211.30 concerns the installation of traffic signs and provides in subsection (c)(1) as follows: “(c) Erection. Erection requirements shall be as follows: (1) Normally, signs should be mounted approximately at right angles to the direction of, and facing, the traffic that they are intended to serve." First emphasis in text; second emphasis supplied.

Finally Section 211.72, which has been partially set out elsewhere in this Opinion, provides for the location of speed limit signs. Section 211.72(b)(l)(i) reads, in part: “A Speed Limit Sign, R2-1, indicating the maximum speed limit shall be placed on the right side of the highway____” Emphasis supplied. Similarly, subsection (ii)(A) provides, in part: “A Speed Limit Sign, R2-1, indicating the speed limit on the following section of the highway shall be placed on the right side of the highway." Emphasis supplied.

In sum, none of the above regulations supports Ms. Wilkins’ second, alternate theory. None provides for the posting of traffic signs on the side of a roadway opposite from which a motorist is traveling. We cannot imagine, nor do the regulations contemplate, that a motorist would adhere to traffic signs posted on the side of a roadway intended for traffic flowing in the opposing direction. Such expectation flies in the face of common sense and is contrary to the Motor Vehicle Code and to the regulations promulgated thereunder.

Lastly, Ms. Wilkins maintains that no evidence was introduced that the Speedchek device used to time her speed was properly installed pursuant to PennDot regulations. She specifically asserts that no evidence was adduced that the strips accompanying the dashboard component of the Speedchek device were placed on the roadway five feet apart from each other. Ms. Wilkins does not raise any issue concerning approval of this device by PennDot for the purpose of speed detection, nor does she point to any impropriety concerning the testing of the equipment.

Unfortunately for Ms. Wilkins, her argument fails for lack of evidentiary support. First, it is contradicted by the testimony of Officer Smith, who operated the Speedchek device in this case. Officer Smith described the Speedchek as “a device set up on the dash of the patrol car with two tapes laid across the roadway five foot [sic] apart.” N.T., 5; emphasis supplied.

Secondly, the Commonwealth introduced into evidence a document from the Commonwealth Department of General Services entitled “Report of Test for Linear Measures” which certified that the linear measurement for the Speedchek tapes conforms to the specifications of the Linear Measure Code of the National Institute of Standards and Technology (NIST) “and are correct for law enforcement applications.” Commonwealth Exhibit No. 2. The linear measurement which the Department of General Services certified as being in conformity with the NIST standards is five feet. Id. Significantly, counsel for Ms. Wilkins stipulated to the introduction of this Exhibit into evidence and never questioned the correctness of the information contained therein. Nor did counsel for Ms. Wilkins challenge the testimony of Officer Smith concerning his description of the Speedchek device and, in particular, the placement of the accompanying tapes across the roadway. Therefore, we are unable to conclude that relief is warranted here.

Judgment of sentence affirmed.

      . The instant appeal was actually taken from the Order denying post-verdict motions. However, this court, by per curiam Order, remanded the case to the trial court for the entry of a judgment of sentence on the docket but retained jurisdiction meanwhile. A judgment of sentence was then duly entered on the docket pursuant to that Order. Therefore, the appeal is properly before us.

      . 75 Pa.C.S.A. § 3362(b).

      . Section 3362(b) of the Motor Vehicle Code, 75 Pa.C.SA § 3362(b), provides the authority for the adoption of regulations by PennDot for the placement of traffic control signs and devices.

      . Since counsel failed to object to the admission of Exhibit No. 3 and did not cross-examine Officer Smith concerning the placement of the Speedchek tapes, we could consider this matter waived even though it was raised in post-verdict motions. See Pa.R.Crim.P. 1123(a).


source: Caselaw Access Project

license: Public Domain

text:
    605 A.2d 368
    Cheryl Lynn WELZ and Joseph P. Welz, Appellants, v. Herbert C. WONG and Theresa Wong.
    Superior Court of Pennsylvania.
    Argued Dee. 12, 1991.
    Filed March 19, 1992.
    Paul E. Moses, Pittsburgh, for appellants.
    Michael E. Koll, State College, for appellees.

      Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an order granting appellees’ preliminary objections in the nature of a demurrer. Appellants raise two issues for our consideration, (1) whether the liability of a landowner who sells land under articles of agreement and retains legal title should be determined under rules applying to a landlord out of possession or those applying to a vendor-vendee relationship; (2) whether the allegations in the complaint were sufficient to withstand a demurrer. We affirm.

The within dispute centers around the sustaining of personal injury by appellant Cheryl Welz when she fell down a flight of wooden stairs at the rear of Champs Sports Bar and Grill in State College, Pennsylvania, at approximately 2:30 A.M. on January 11, 1989. After the accident, appellants filed a personal injury action alleging that the stairway was in defective and unsafe condition. The complaint also alleged that, at the time of the accident, appellees were the legal owners of the bar but that the bar was the subject of articles of agreement of sale, appellees withholding title until all installments of the purchase price were paid. Appellees were named as defendants as were Collegiate Subs, Inc., and Scott Lucchesi, president of that corporation, as vendees under the articles of agreement.

With regard to appellees herein, the complaint alleged that at the time of sale to Collegiate Subs, appellees knew the premises would be used for admission of a large number of persons and knew or should have known that the defective condition of the stairway would pose an unreasonable risk to the patrons. Additionally, it was alleged that appellees had reason to know that Collegiate Subs would admit patrons without putting the stairway in safe condition yet appellees failed to remedy the defective railway prior to selling the property to Collegiate Subs. Appellees filed preliminary objections demurring to the evidence. They asserted that no cause of action was stated against them because the complaint failed to allege that they participated in the operation of Champs, or contracted to make repairs, or concealed any dangerous condition or retained any control over the property. The trial court sustained the demurrer, applying the rules of liability of a vendor of real estate as opposed to that of a landlord out of possession, as argued by appellants. This appeal followed.

The primary disagreement between the parties on the appropriate standard is grounded upon the fact that although both a vendor and a landlord out of possession are not generally liable for injuries resulting from a condition of the premises there are exceptions to the general rule of non-liability. A comparison of those exceptions reveals that the exceptions relating to a vendor are more restrictive than those that apply to a landlord out of possession. The particular exception appellant urges us to hold applicable to the facts of the present case reads as follows: “if the landlord leases the properly for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee, ...” Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200, 1202 (1986).

In contrast, as to a vendor, a vendor will be found liable as to a dangerous condition only if the vendee does not know of, or have reason to know of, the condition or the risk involved and if the vendor has reason to believe that the vendee will not discover the condition or realize the risk. See, Restatement of Torts (Second) § 353. Appellant has conceded that the complaint does not allege facts sufficient to state a cause of action against appellees under this exception. (Appellant’s brief at p. 12.) Consequently, this case turns upon a determination of whether the exceptions relating to a landlord out of possession should apply, or those relating to a vendor should apply.

Neither appellant, nor appellee, have cited to a case discussing the exact inquiry before us, that is, whether a landowner who sells land through a land sale contract, articles of agreement or some other form of installment contract and who retains title pending performance of the contract, should be treated differently, for liability purposes, from a vendor who sells the land and delivers a deed. Our own research has found one case where this topic was discussed.

In Anderson v. Cosmopolitan National Bank of Chicago, 54 Ill.2d 504, 301 N.E.2d 296 (1973), the Illinois Supreme Court considered a case where a young child was injured when he fell through a stairway railing that had slats missing. Jessie and Mabel Smith had entered into an installment contract for the purchase of the property from William and Mary Suchier, the title owners. The Suchiers retained title in the property pending payment of all the installments. Further, the sellers retained the right to make repairs to the property and purchase insurance on the property should the buyers fail to do the same.

If buyers failed to make any payment, sellers had the option to consider the contract forfeited, retake possession of the property and retain all installments previously paid. The Smiths took possession of the property on May 1,1963. The appellant, mother of the injured child, had rented an apartment in the building on April 1, 1963 from the Suchiers. The injury occurred on May 7, 1963, only six days after the Smiths had taken possession. In an action against the Suchiers, the minor’s guardian relied upon a theory that the defect in the railing existed at the time of the contract sale to the Smiths and that the Suchiers knew, or should have known of it and were negligent in failing to keep the property in repair. The Suchiers moved for summary judgment, which was granted. On appeal, the intermediate court reversed, which decision was then appealed by the Suchiers to the Illinois Supreme Court.

In reversing the decision of the appellate court, the Illinois Supreme Court made the following commentary rejecting the appellee’s argument that the Suchiers’ decision to sell the land through the scheme chosen somehow affected the responsibility to occupants of the building:

The plaintiff does not urge us to affirm the judgment of the appellate court for the reasons stated in the opinion of that court. Rather the argument is that those who sell real estate upon installment contracts should be subjected to a different and more strict liability than is imposed upon other vendors. Specifically, it is urged that “the ‘contract seller’ should be treated as an owner or lessor” because of the significant rights that he retains under his contract. These rights usually include the right to enter and make repairs and to charge the cost to the buyer. The seller has the right to insure if the buyer fails to do so and, in the event of a default on the part of the buyer, has a simple remedy by which he may regain possession. We are not persuaded by this argument. Substantially similar arguments can be advanced with respect to mortgagees, who have the same or substantially similar rights. That the device of the installment contract as a means of financing the purchase of real estate is subject to abuse, and indeed has been abused, does not mean that it is not a useful credit device or that this court should impose upon a contract seller the liability of an owner of real estate.

In contrast to this position, appellants suggest the law in Pennsylvania is to the contrary. Appellants argue that the case of Maglin v. Peoples City Bank, 141 Pa.Super. 329, 14 A.2d 827 (1940), indicates that the rules that govern a negligence action against a landowner who sells land through a land sales agreement while retaining legal title are those which apply to a landlord out of possession.

In Maglin, Peoples City Bank purchased a bathhouse and swimming pool known as Rainbow Gardens at a sheriff’s sale. Subsequently the bank leased the property to an individual named Bostrom for a period of less than one year. After expiration of the lease the bank and Bostrom entered into an agreement for the purchase of the property by Bostrom. Under the agreement the bank retained the deed to the property pending full payment by Bostrom. Bostrom later defaulted under the agreement. However, prior to the default, Maglin suffered a personal injury on the premises. Maglin sued both Bostrom and Peoples City Bank on counts of negligence. In considering the responsibility of the respective defendants the court noted that there was no evidence of a principal-agent relationship between Bostrom and the bank. The court then concluded, without discussion of principles of a vendor-vendee relationship, that “[t]he relation between the bank and Bostrom, under the agreement of sale, pending the passing of title is more nearly analogous to that of lessor and lessee.” Id., 141 Pa.Superior Ct. at 336, 14 A.2d at 83Ó. Appellants argue that this case requires application of the rules of liability for a landlord out of possession to appellees. Appellees argue otherwise, suggesting that the Maglin court did not consider rules applying to a vendor and that Maglin only holds that between a principal-agent approach and a landlord-tenant approach the landlord-tenant approach was more accurate to the facts of that case.

Ordinarily a prior decision of this court is considered binding upon a panel of this court as to decisions postdating the prior decision. However, this court is certainly empowered to interpret and construe prior decisions and apply them in good faith to later cases. If the decision in Maglin had contained a thorough review of competing theories and possibilities with respect to the proper scope of liability to impose upon an installment contract seller of real estate and chosen the rules pertaining to a landlord out of possession, we would be reluctant — despite its age and the fact that it has not been reaffirmed in a substantial number of cases subsequent to its publication — to distinguish such precedent away or otherwise seek to exclude its application. However, such is not the case here. The Maglin court did choose to apply rules relevant to a landlord out of possession to the facts of that case. But the reference to an alternative of a principal-agent possibility, along with a lack of discussion regarding other possibilities, does provide some suggestion that possibly these were the only two theories under consideration by the parties and/or the court. Obviously, the plaintiff in Maglin would have preferred a finding of a principal-agent relationship which would certainly have exposed the bank to possible liability. In contrast, it cannot escape notice that although choosing a landlord out of possession theory, the court still found liability lacking under those rules.

It is possible that the bank argued a landlord out of possession standard perceiving that standard sufficiently restrictive to prevent liability under the facts presented there. Further, it should be noted that the Superior Court reversed the decision of the lower court in Maglin. A basic tenet of appellate law and practice indicates that although an appellate court is free to affirm a lower court on theories other than those advanced by the parties or considered by the trial court, the court is not free to reverse on theories not raised below. See, generally, Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974), and Penn Clair Construction Co. v. Eden Roc Country Club, 294 Pa.Super. 377, 440 A.2d 514 (1981). Thus, it is possible that there was no discussion of applying a vendor status to the bank because such theory was not propounded by the bank. Similarly, if we assume that the court was obeying this tenet of appellate law, we must assume that the bank was at least arguing that a landlord out of possession theory should apply. In any event, particularly in light of a lack of discussion of the possibility of treating a contract seller as a vendor for liability purposes, and also in light of language providing a more definitive holding, we do not read Maglin as mandating that a contract seller of real estate who retains legal title pending full payment of the contract price be subjected to the scope of liability imposed upon a landlord out of possession. Rather we believe it more appropriate to impose the scope of liability associated with a conventional vendor.

From a policy standpoint the reasoning behind imposing greater responsibility on the shoulders of landlords out of possession as opposed to vendors who sell their property is rather self evident. It would seem far less likely that an individual or entity that is merely renting property from another would make improvements to the property or otherwise repair defects, particularly when doing so would often entail substantial expense. The transitory interest in the property is simply insufficient to prompt the average lessee to invest money in improving or repairing the property only to turn possession back over to the owner when the lease expires.

In contrast, it would seem far more likely that if improvements and expensive repairs were to be made they would be made by the owners of the property. For it is they who have the long term vested interest in the property. Even if the likelihood were not greater, it seems more equitable to charge that obligation to the landowner for the very same reason that the landowner retains the long term interest, right and benefits in the property and therefore, it seems, should bear the corresponding responsibility. In contrast, the owner of property who is selling that property and divesting himself of that property relinquishes the long term interest in the property and it would seem more equitable that responsibility for that land should also be transferred to the new owner. The question then is, when a landowner sells through an installment contract does he retain sufficient interest in the property that justifies imposition of the greater scope of liability. Like the Illinois court quoted above, we think not.

It is true that the seller of land by an installment contract who retains title pending full payment of the sales price has a greater interest in the property than an individual who passes title at the time of sale. However, that interest is entirely contingent and often remote. If the contract is complied with, the installment seller has no greater de facto rights in the property than a seller who delivered the deed at the time of sale. The retained rights will vest only if another party out of the seller’s control fails to meet the terms of the contract. In this scenario, the seller is filling the shoes of both seller and mortgagee. After the contract is signed the rights retained are essentially those possessed by a mortgagee. Notably, the scope of liability urged by appellant here is not recognized as to a mortgagee, either. In Zisman v. City of Duquesne, 143 Pa.Super. 263, 18 A.2d 95 (1941), we stated “ ‘actual control and possession’ are necessary to make a mortgagee liable to third persons in tort for failure to properly maintain the mortgaged premises, ...” Id., 143 Pa.Superior Ct. at 268, 18 A.2d at 97. See also, Premises Liability 62 Am.Jur.2d § 8, p. 356. Consequently, we believe the retained interest of the contract seller is too remote to justify the higher standard of liability that would accompany the treatment of such a seller as a landlord out of possession. Further, it is not as if there is no responsible party under this interpretation. The contract purchaser of the property would undoubtedly be charged with the same obligations generally charged to a vendee or owner of real estate. It is this vendee who along with acquiring the property acquires the responsibility to keep the property in good repair and safe for business invitees. The contract seller should be charged with no greater responsibility while out of possession than an ordinary vendor.

Appellants have admitted that their complaint does not state a cause of action against appellees if the appropriate standard to be charged is that of an ordinary vendor. Because we believe that standard to be the appropriate standard to charge to appellees the trial court was correct in granting appellees preliminary objections and dismissing the complaint against them. For the above reasons we affirm the order appealed from.

Order affirmed.


author: CIRILLO, Judge:

text:
    605 A.2d 373
    Rocco PIROZZI and Anna Marie Pirozzi, Appellants, v. PENSKE OLDS-CADILLAC-GMC, INC., Patriot Oldsmobile-GMC, Inc. and Cowan Olds-Cadillac-GMC, Inc.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1992.
    Filed March 19, 1992.

      Michael G. Louis, West Chester, for appellants.
    William R. Hagner, Paoli, for appellees.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of the Court of Common Pleas of Chester County in favor of the defendants/appellees. We reverse.

Appellant Roceo Pirozzi (“Pirozzi”) purchased a 1986 Cadillac Eldorado coupe from appellees Penske Olds-CadillacGMC, Inc., Patriot-Oldsmobile-GMC, Inc., and Cowan OldsCadillac-GMC, Inc. (“Penske”) in 1986. The automobile was held out as “new” by Penske; however, unknown to Pirozzi, a surface crease or gouge on the front edge of the left door had been repaired and repainted by Penske before the car was offered for sale. The crease was approximately three inches long and one-half an inch wide.

Penske’s service manager became aware of the crease upon delivery of the automobile and sent the car to an auto body shop in order to have the crease removed. The auto body shop repaired the crease and repainted the door of the automobile. The dealership subsequently sold the automobile to Pirozzi without informing him that the car had been damaged, repaired, and repainted.

Pirozzi purchased the 1986 Cadillac Eldorado with a $7,100.00 down payment after executing an installment sales contract on October 8, 1986. The list price of the car was $29,665.00, but Pirozzi purchased it for $23,673.87. Jack Nercesian, owner of J & B Cadillac, testified that the $7,000.00 reduction from the list price was not due to the crease: “Seven thousand dollars was not off for the dink. You could have walked in and bought that car for maybe twenty-four, twenty-five [thousand] with no problem. Nobody sells a car for list, you know. I never had that experience.” On October 11, 1986 Pirozzi took possession of the car at Penske. On October 13, 1986, while the Cadillac was parked in front of Pirozzi’s residence, Nercesian first observed the car from his showroom which is next door to Pirozzi’s residence. Nercesian told Pirozzi that it appeared as if the left door of the car had been repainted. To Nercesian and the other salesman in his showroom the paint on the left door was noticeably different from the rest of the car. Stunned by this discovery, Pirozzi took the car to a local auto body shop for a second, professional opinion. The owner of the body shop confirmed that the door had, indeed, been repainted.

Pirozzi immediately drove the Cadillac back to Penske, told them about the repainted door, and demanded a full refund. Penske refused to refund Pirozzi’s money, and Pirozzi left the car and the keys on the dealership lot. No one at Penske explained to Pirozzi at that time that the Cadillac had received a dent during transit from the manufacturer to the dealership and that the car had been repaired and repainted. Penske returned the car to the auto body shop where the door had originally been repaired and repainted. Here, the door was repainted a second time without consulting Pirozzi and the car was, subsequently, returned to him. However, Pirozzi refused to accept the car. The Cadillac remained on the dealer’s lot for nearly one year, until it was finally repossessed by the lienholder, General Motors Acceptance Corporation (GMAC). GMAC subsequently sold the car at auction for less than the balance due on the loan. GMAC obtained a deficiency judgment against Pirozzi in the amount of $4,051.32. This amount remains outstanding.

Pirozzi filed a complaint against Penske, alleging the dealership violated the Unfair Trade Practices and Consumer Protection Law, and committed breach of warranty, fraud, and intentional misrepresentation. At a bench trial the trial court found in favor of Penske. After his post-trial motions were denied, Pirozzi filed this timely appeal. Pirozzi presents several issues for our consideration:

(1) Did the trial court err in finding that the vehicle in question, when delivered to buyer, was “new” and was not “deteriorated, altered, reconditioned, reclaimed, used or second-hand/’ within the meaning of the Unfair Trade Practices and Consumer . Protection Law?
(2) Did the trial court err in failing to address the other alleged unfair methods of competition set forth in paragraphs 28(b) through (f) of buyer’s amended complaint?
(3) Did the trial court err in failing to address the claims of breach of an express warranty set forth in counts IV, V, and VI of buyer’s amended complaint?
(4) Was the trial court’s verdict manifestly against the weight of the evidence such that a new trial should be granted?
(5) Based on the evidence of record, did the trial court err in failing to direct entry of judgment in favor of buyer and against seller on any or all of the claims brought? Our standard of review of an order denying judgment

notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schlowmann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). To make that determination we must consider all the evidence received, whether the trial court ruled correctly on its admissibility or not. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989). We must also afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence, while rejecting all unfavorable testimony and inferences. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984). Judgment notwithstanding the verdict may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989).

The standard of review for an order denying a motion for a new trial is whether , the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-421 (1987). If support for the trial court’s decision is found in the record, the order must be affirmed. Commonwealth ex rel. Meyers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985).

Pirozzi initially contends that Penske violated the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) when it sold him the Cadillac under the guise of being “new.” The purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices and the statute is the principal means for doing so in the Commonwealth. Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 460, 329 A.2d 812, 817 (1974). To this end, Section 2 of the UTPCPL lists sixteen specific, prohibited activities which are defined as unfair methods of competition or deceptive acts or practices. See 73 Pa.S.A. § 201-2.

In Monumental Properties, Inc. our supreme court held that the UTPCPL is to be liberally construed in order to effect its purpose. Id., 459 Pa. at 459-460, 329 A.2d at 816-817. The supreme court went on to hold that Pennsylvania courts may turn to decisions under the Federal Trade Commission Act (FTCA) for aid in interpreting the UTPCPL, as our UTPCPL has been modeled after the FTCA. Id. at 462, 329 A.2d at 817. It is important to note that section 3 of the UTPCPL and section 5 of the FTCA are virtually identical.

The United States Supreme Court has held that under the provisions of the FTCA regarding unfair and deceptive trade practices, 15 U.S.C.A. § 45, any conduct determined to be contrary to the purposes of the FTCA is prohibited. Atlantic Refining Co. v. FTC, 381 U.S. 357, 369, 85 S.Ct. 1498, 1506, 14 L.Ed.2d 443 (1965) reh. denied 382 U.S. 873, 86 S.Ct. 18,15 L.Ed.2d 114 (1965) (emphasis added). Under section 5 of the FTCA a violation occurs if conduct runs counter to the “public policy declared in Act.” Id. The purpose of the FTCA, like the UTPCPL, is to prevent unfair or deceptive business practices and fraud.

Pirozzi alleges that the Cadillac he purchased was not “new,” but was, in reality, “deteriorated, altered, reconditioned, reclaimed, used or second-hand” pursuant to section 2(4)(vi) of the UTPCPL. The conduct complained of by Pirozzi is that, unbeknownst to him, the “new” car had been damaged, repaired, and repainted prior to its sale and the dealership willfully failed to disclose this information to him, thereby significantly reducing its resale value. Section 201-2(4)(vi) of the UTPCPL provides: “representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or second-hand, is an unfair or deceptive act or practice.” (emphasis added). The terms “altered” and “reconditioned” are not defined by the UTPCPL. As the words are employed in common usage and they are not defined by the statute, we must look to their common usage meaning. 1 Pa.C.S. § 1903(a); Township of Derry, Dauphin County v. Swartz, 21 Pa.Commw. 587, 589-90, 346 A.2d 853, 855 (1975). In Title 37 of the Pennsylvania Code, entitled “Automotive Industry Trade Practice,” the term “reconditioned” is defined as “repaired or restored to working order.” 37 Pa.Code § 301.1. (emphasis added). The term “altered” is defined by Webster’s Ninth New Collegiate Dictionary (1987) as “to make different without changing into something else.”

Applying the definitions to the facts at hand, we conclude that the car sold to Pirozzi was not “new” as represented by Penske. Instead, it was “reconditioned” in that it was repaired and restored to working order prior to its sale and “altered” in that the left front side of the car was different than the rest of the car when delivered to Pirozzi. Even after the car was repainted a second time it was still different, for it had been repaired and repainted twice. Therefore, Penske’s representation that the car was “new” when it had been damaged and subsequently repaired was a violation of the UTPCPL.

The sale of the car without full disclosure was deliberate. Penske admitted it has a policy of not revealing damage sustained prior to the automobile’s arrival at the dealership unless the customer specifically inquires about such damage. See footnote 3, supra. The record reveals that Pirozzi asked Penske several times if there was anything wrong with the car. Penske told him that there was nothing wrong with the car. See footnote 4, supra. We believe Pirozzi’s queries should have elicited the disclosure of the repaired and repainted door. It is unrealistic to expect the average consumer to specifically ask if the car was damaged in transit. Section 2(4)(xvii) of the UTPCPL states that “engaging in any other fraudulent conduct which creates a likelihood of confusion or misunderstanding” constitutes an unfair method of competition or an unfair or deceptive act or practice and, as such, is prohibited. (emphasis added). As evidenced by the facts, Penske’s failure to reveal the damage to the car and its subsequent repair certainly created confusion and misunderstanding for the consumer in this case and, therefore, constituted a violation of section 2(4)(xvii) of the UTPCPL.

We conclude by examining the Legislature’s intent when enacting this statute:

The Legislature sought by the Consumer Protection Law [UTPCPL] to benefit the public at large by eradicating, among other things, “unfair or deceptive” business practices____this Law attempts to place on more equal terms seller and consumer. These remedial statutes are all predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace.

Monumental Properties, Inc., 459 Pa. at 457-458, 329 A.2d at 815-816.

There is not sufficient competent evidence to sustain the verdict. After reviewing all the evidence in the light most favorable to Penske, the verdict winner, we find that the trial court erred in finding that Pirozzi’s car was “new” within the meaning of the UTPCPL. We, therefore, reverse the judgment and remand for entry of judgment non obstante veredicto.

Reversed and remanded for entry of judgment non obstante veredicto. Jurisdiction relinquished.

      . The three names of the appeilee reflect a name change only, not a change of the corporation. The three names refer to the same entity, Cowan Olds-Cadillac-GMC, Inc.

      . The cost of repairing and repainting the car, as charged by the auto body shop, was $108.00.

      . Hugh B. Cowan, president of Cowan Olds-Cadillac-GMC, Inc. (Penske), testified that it is the policy of the dealership not to reveal to the consumer automobile damage sustained prior to its arrival at the dealership unless the customer specifically asks about such damage. Instead, the damage is merely noted on a carrier receipt, and the automobiles are repaired and placed on the display floor.

      . Nercesian and Pirozzi had discussed the prices of the Eldorado prior to Pirozzi’s purchase of the car. Pirozzi told Nercesian that he could get the same car for a lower price with more options at another dealership. Nercesian could not match the price. When Pirozzi again spoke with Bob DeCampli, a salesman at the Penske dealership, he asked him several times if there was anything wrong with the car. DeCampli told him that there was nothing wrong with the car.

      . It is unclear from the record whether the entire car was painted or whether just the door was repainted.

      . After Pirozzi refused to accept the Cadillac he contacted his attorney who sent letters to Penske demanding a full refund or a new car. When Penske refused to comply, Pirozzi filed this suit.

      . Pirozzi’s credit rating has been adversely affected. He has been unsuccessful in his attempts to secure a loan in order to start a new business. Three banks have denied him loans due to the car repossession by GMAC.

      . 73 Pa.S.A. §§ 201-1 et seq.

        . 15 U.S.C.A. § 41 et seq.

      . Section 5 of the FTCA provides in pertinent part:
      Unfair methods of competition in commerce, and unfair or deceptive acts or practice in commerce, are declared unlawful.
      15 U.S.C.A. § 45(a)(1) (1973).
      Section 3 of the UTPCPL provides in pertinent part:
      Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.
      73 Pa.S.A. § 201-3 (1991).


author: BECK, Judge:

text:
    605 A.2d 377
    Dorothy Weidig HILEMAN, Administratrix of the Estate of Joseph Edward Weidig, a/k/a Joseph Edward Weidig, Sr., Deceased, and Dorothy Weidig Hileman, Joseph Edward Weidig, Jr., Scott Allen Weidig, Clyde William Weidig, and Julia Ann Weidig, Individually v. Ruth MORELLI, Executrix or Administratrix of the Estate of Marion A. Morelli, M.D., Deceased, and Nason Hospital. Appeal of Ruth MORELLI, Executrix or Administratrix of the Estate of Marion A. Morelli, M.D., Deceased.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed March 20, 1992.

      James F. O’Malley, Johnstown, for appellant.
    Robert A. Kosseff, Philadelphia, for Hileman, appellee.
    Frank J. Hartye, Hollidaysburg, for Nason Hosp., appellee.
    Before CAVANAUGH, BECK and KELLY, JJ.
   BECK, Judge:

This case presents a difficult procedural question concerning the interrelationship between the joinder rules and discontinuance practice. The question itself can only be understood in light of the peculiar scenario in which it arose, which was as follows.

On December 14, 1989, appellees, Dorothy Weidig Hileman, as Administratrix of the Estate of Joseph Weidig and individually, and her four children filed a complaint naming appellee Nason Hospital and appellant Ruth Morelli, Executrix of the Estate of Marion A. Morelli, M.D., as defendants. The complaint asserted wrongful death and survival actions against the defendants. It alleged that on December 27, 1987, Joseph Weidig had visited Dr. Morelli complaining of chest pain and that the doctor had diagnosed him as having the flu and sent him home. The next day, Mr. Weidig was brought to the emergency room of Nason Hospital complaining of chest pain. He was admitted to the Intensive Care Unit and later that evening went into cardiac arrest and died.

The complaint alleged that both Dr. Morelli and the hospital had been negligent in the treatment of Mr. Weidig, thereby causing his death. Specifically, as to the hospital the complaint alleged that the hospital’s treatment of Mr. Weidig in attempting to alleviate his chest pain had been inadequate and, further, that the hospital had failed to pursue appropriate resuscitative measures when Mr. Weidig went into cardiac arrest. It was alleged that the hospital was both independently negligent and vicariously liable for the negligence of Dr. Morelli, who was on staff at the the hospital.

Both defendants filed preliminary objections to the complaint, objecting on the ground of lack of specificity. On May 11, 1990, the trial court granted these objections and gave plaintiffs leave to amend certain specific portions of the complaint to render the allegations contained therein more specific. Plaintiffs filed their amended complaint on September 20, 1990. Surprisingly, however, the amended complaint did not comply with the trial court’s order allowing it. Rather than containing more specific allegations as to the negligence of the defendants, the amended complaint completely eliminated the hospital as a defendant. Only Dr. Morelli’s estate remained.

As is to be expected, Dr. Morelli’s estate immediately objected to this manner of proceeding. The estate filed preliminary objections pointing out that Pennsylvania Rule of Civil Procedure 229 provides:

(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
(b) A discontinuance may not be entered as to less than all defendants without leave of court after notice to all parties.
(c) ....

Pa.R.C.P. 229(a) & (b).

The estate also asserted that to allow plaintiffs to discontinue their action against the hospital at this point in time would severely prejudice the estate, which had intended to follow the procedure set forth in Rule 2252(d) (joinder of person already a party) and assert by way of answer and new matter that the hospital alone was liable to plaintiffs and, alternatively, that the estate had a right to contribution from the hospital. The estate argued that if the hospital were to be eliminated as an original defendant, the estate’s right to join the hospital would be governed by Rule 2252(b) (joinder of person not already a party) and that under that rule, the estate could not join the hospital on an allegation of sole liability to plaintiffs because the statute of limitations as to such a claim had now expired.

The hospital responded to the amended complaint by filing preliminary objections in the nature of a demurrer, alleging that since the new complaint contained no allegations against the hospital, it should be dismissed from the action.

After briefing, the trial court heard oral argument. Plaintiffs’ counsel informed the court that he had eliminated the hospital from the amended complaint because a medical expert had informed him that there had been no negligence in the manner in which the hospital had treated Mr. Weidig. Thus, counsel stated that he could not ethically pursue a cause of action against the hospital. Counsel appeared to concede that filing an amended complaint from which one original defendant is eliminated is not the proper vehicle for discontinuing an action as to that defendant. Therefore, counsel orally moved for a discontinuance as to the hospital, arguing that Rule 229 did not require that a written petition for discontinuance be filed. He further argued that the notice requirement of Rule 229(b) was fulfilled since all parties were put on notice that the plaintiffs wished to discontinue as to the hospital through the filing of the amended complaint. Counsel for Dr. Morelli’s estate reiterated his position that to allow the discontinuance without provision being made for the estate to join the hospital as an additional defendant on grounds of sole and joint liability nunc pro tunc would substantially prejudice the estate.

On January 30,1991, the trial court entered the following order, from which this timely appeal is taken:

AND NOW, to wit, this 30th day of January, 1991, upon consideration of defendant Ruth Morelli’s preliminary objections to plaintiffs’ amended complaint, defendant Nason Hospital’s preliminary objections to plaintiffs’ amended complaint in the nature of a demurrer, plaintiffs’ motion to discontinue this action as against defendant Nason Hospital, briefs submitted by counsel and oral argument thereon, it is hereby ORDERED, DIRECTED and DECREED that all of defendant Morelli’s objections and motions are DENIED, plaintiffs’ motion to discontinue the cause against defendant Nason Hospital is GRANTED, and defendant Nason Hospital’s demurrer is GRANTED. We hereby direct the Prothonotary of this Court to strike the name of Nason Hospital from the caption in the docket.
In the interest of judicial economy, it is further ORDERED that defendant Morelli shall have thirty (30) days from the date of this order to file a writ or complaint against Nason Hospital to preserve any rights of contribution or indemnity. Further, defendant Morelli shall file its answer to plaintiffs’ amended complaint within thirty (30) days of the date of this order.

In the trial court’s opinion in support of this order, the court expressed its view that Rule 229 did not require a written petition to discontinue. Thus, there was no bar to granting a discontinuance of the action against the hospital simply because no written petition had been filed. The court further opined that any prejudice Dr. Morelli’s estate might suffer as a result of the discontinuance was, in effect, its own fault. The court was of the opinion that if the estate wished to plead that the hospital was solely liable on plaintiffs’ causes of action, it did not have to follow the answer and new matter procedure of Rule 2252(d) but rather could have, and under the circumstances of this case must have, filed a separate writ or complaint against the hospital within the statute of limitations. Having failed to do so, the estate was now barred from pleading sole liability of the hospital to the plaintiffs on their cause of action. Nevertheless, the court found that the estate did have the right to plead that it had a right to contribution from the hospital, since the statute of limitations on that claim had not yet passed. Therefore, the court allowed the discontinuance of plaintiffs’ action against the hospital, but allowed the estate to join the hospital to preserve the estate’s contribution rights.

We have carefully examined the record in this case and have conducted a thorough analysis of the law pertinent to joinder and discontinuance. Although this process has not unearthed any case precisely on point, we have nevertheless come to the inescapable conclusion that the trial court erred in granting a discontinuance as to the hospital without preserving the full battery of joinder rights provided to the estate under the rules of civil procedure.

We agree with the trial court’s conclusion that the fact that plaintiffs did not file a written petition for discontinuance does not bar the court from granting plaintiffs’ oral motion for discontinuance. Rule 229(b), relating to discontinuance of an action as to less than all defendants, does not expressly require a written petition. It requires leave of court and notice to all parties, both of which were present in this case. This, however, does not mean that the ultimate decision of the trial court in this case was correct. The flaw in the court’s reasoning relates not to discontinuance procedure, but rather arises from a mistaken analysis of the effect the discontinuance would have on Dr. Morelli’s estate.

We begin with a statement of the general principles of joinder on which our analysis depends. Rule 2252, captioned Right to Join Additional Defendants, is the obvious starting point. It provides, in pertinent part:

(a) Except as provided in Rule 1706.1, any defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be
(1) solely liable on the plaintiffs cause of action, or
(2) liable over to the joining party on the plaintiffs cause of action, or
(3) jointly or severally liable with the joining party on the plaintiffs cause of action, or
(4) liable to the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.
(b) If the person sought to be joined is not a party to the action the joining party may file as of course a praecipe for a writ or a complaint.
(d) If the person sought to be joined is a party, the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in his answer as new matter that such party is alone liable to the plaintiff or liable over to the joining party or jointly or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor. The case shall proceed thereafter as if such party had been joined.

Pa.R.C.P. 2252(a), (b), & (d).

Thus, Rule 2252 provides two different joinder procedures. If the person to be joined is already a party to the action, either as plaintiff or defendant, the joinder is affected through answer and new matter. Since the rule says the joining party in this situation “shall” effect the joinder in this manner, it is clearly a mandatory procedure. As leading commentators on the rules of civil procedure have noted:

The use of the word “shall” in describing the new matter technique and the use of the word “without” in describing severance and writ combine to make the new matter technique the exclusive method.

Goodrich Amram 2d, Standard Pennsylvania Practice, Vol. 8 § 2252(d):! (1977). In contrast, where a party seeks to join a person not already a party to the action, joinder is effected by filing a praecipe for a writ or complaint. Pa. R.C.P. 2252(c).

The present form of the joinder rule reflects a major modification and simplification of joinder practice. This was effected largely through an amendment to the rule promulgated in 1969. As this court has explained the evolution of joinder practice and the policies underlying the present rule:

The rule was amended ... in 1969 to provide a procedure for joining any party, plaintiff or defendant, who might be solely liable, liable over or jointly or severally liable with the joining party. The purpose of these amendments was to provide a short cut procedure for disposing of matters involving numerous parties with divergent interests, avoiding the cumbersome three step process of severance, joinder and consolidation formerly required if one wished to join a person already a party to the action.
In construing this rule ... a number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that “[t]he rules shall be liberally constructed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Such an approach is particularly pertinent where multiple parties are involved since the intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. This Court has favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.”

Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724, 729-30 (1974) (citations omitted). See also Somers v. Gross, 393 Pa.Super. 509, 574 A.2d 1056 (1990); Martinelli v. Mulloy, 223 Pa.Super. 130, 299 A.2d 19 (1972).

Although the joinder rights accorded an original defendant under Rule 2252 are broad, they are not unlimited. One such limitation lies at the heart of this case. It arises from the effect of the statute of limitations applicable to the plaintiffs cause of action on the ability of an original defendant to join an additional defendant on the ground that the additional defendant is solely liable to plaintiff on its cause of action. It is well established that where an original defendant wishes to join an additional defendant who is not already a defendant in the action on the ground that the additional defendant is solely liable on the plaintiffs cause of action, the original defendant must act within the statute of limitations applicable to the plaintiffs cause of action. Wnek v. Boyle, 374 Pa. 27, 96 A.2d 857 (1953); Dickson v. Lewandowski, 228 Pa.Super. 57, 323 A.2d 169 (1974). In other words, a defendant may not bring another party into the case on the theory that he is solely liable to plaintiff if the plaintiff himself is already time barred from suing that new defendant. In contrast, where the original defendant wishes to join an additional defendant who is not already a defendant in the action on the ground that the additional defendant is liable to the original defendant for contribution or indemnity, the statute of limitations on the plaintiffs cause of action is irrelevant. The claim of the original defendant for contribution or indemnity is the original defendant’s own separate cause of action which does not even arise until he has been held liable to plaintiff. Id.

Although the foregoing principles are clear insofar as they relate to the rights of an original defendant in joining an additional defendant who has not already been sued by plaintiff on his cause of action, there is little authority to instruct us as to the effect of the statute of limitations applicable to the plaintiffs’ cause of action on the joinder rights extant between two original defendants, as is the case here. The little authority we have located, however, indicates that the analysis is not the same under such circumstances and we agree that it should not be.

In Oxford Dress Manufacturing Co., Inc. v. Shamokin Shoe Corp., 6 D. & C.3d 93 (1978), the Court of Common Pleas for Northumberland County grappled with this question. In that case, the plaintiff sued two defendants, alleging that both defendants together or either of them separately was liable to plaintiff for its damages. One defendant sought to join the other as an additional defendant on the ground that it was solely liable to plaintiff. The other defendant objected, stating that the statute of limitations on plaintiff’s claims against it had now expired. The trial court rejected this objection, stating:

In all of the cases [where joinder of an additional defendant was held barred because the plaintiffs’ statute of limitations had expired] the person attempting to be joined as an additional defendant was not already in the case as an original defendant.
In the case at bar, [the defendant to be joined] is already exposed to potential sole liability to plaintiff by virtue of its having been named as an original defendant. By being joined as an additional defendant, [it] is not being exposed to any increased liability. The shield of the Statute of Limitations would then serve no purpose.

Id. at 95 (emphasis in original).

We agree with this analysis. In the situation where a plaintiff sues two defendants, alleging the same cause of action against both of them, the plaintiff’s institution of suit against both defendants tolls the statute of limitations on plaintiff’s cause of action as to both defendants. Thus, each original defendant has the right, even after the period of the statute of limitations has passed, to file an answer and new matter under rule 2252(d) alleging that the other original defendant is solely liable on the plaintiff’s cause of action. In doing so, the original defendant adds nothing to what the plaintiff has already alleged against the other original defendant and the statute of limitations should not bar the joinder.

We must now analyze how these principles apply to the situation presented by this case. Dr. Morelli’s estate argues that it has been denied the full benefit of Rule 2252’s liberal joinder provisions. The estate argues that when plaintiffs initiated suit against both the estate and the hospital, alleging that they were each negligent in their treatment of Mr. Weidig and that this negligence caused Mr. Weidig’s death, the estate then had the right under Rule 2252(d) to file, in its answer and new matter, a cross-claim against the hospital alleging that it alone was liable on plaintiffs’ cause of action. Since plaintiffs had already commenced suit on their cause of action against the hospital within the statute of limitations, the estate would be free to allege that the hospital was solely liable on plaintiffs’ cause of action even though the answer and new matter containing that allegation was filed after the statute of limitations on plaintiffs’ causes of action had expired. In joining the hospital on this ground, all the estate would be doing was alleging that which had already been alleged by plaintiffs themselves against the hospital.

However, the estate continues, before the time for filing an answer and new matter arose, plaintiffs unilaterally discontinued their suit against the hospital. This occurred long after the statute of limitations on plaintiffs’ cause of action had passed. Thus, the estate would have to attempt to join the hospital as a new party additional defendant under Rule 2252(c). In doing so, the estate could allege that it had a right to contribution or indemnity from the hospital, but could not allege that the hospital alone was liable to plaintiffs since the statute of limitations on plaintiffs claims against the hospital had by then expired.

The trial court rejected this argument. It found that the elimination of the hospital as an original defendant did not deprive the estate of any joinder rights that it would have had if the hospital was retained as an original defendant. The court determined that the estate could not have alleged that the hospital was solely liable on plaintiffs’ cause of action even if plaintiffs were not permitted to discontinue their action against the hospital and the hospital was kept in the action as an original defendant. The trial court so concluded because it found that plaintiffs’ original complaint itself never asserted that the hospital was solely liable to plaintiffs on their cause of action since plaintiffs’ original complaint alleged only that the hospital and Dr. Morelli’s estate were “jointly and severally” liable to plaintiffs. Thus, the trial court concluded that if the estate had wanted to allege sole liability of the hospital to the plaintiffs, it should not and could not have waited to avail itself of the answer and new matter procedure outlined in Rule 2252(d). Rather, the estate had to file a separate writ or complaint against the hospital asserting that it was solely liable to plaintiffs within two weeks after the plaintiffs’ original complaint was filed, which was when the statute of limitations on plaintiffs’ cause of action against the hospital expired.

We do not concur in this analysis. Although the trial court was correct in noting that the plaintiffs’ original complaint alleged that the hospital and Dr. Morelli’s estate were jointly and severally liable, this does not lead to the conclusion that when the statute of limitations on plaintiffs’ causes of action expired, the estate could not join the hospital on a theory of sole liability to plaintiff. The plaintiffs’ original complaint alleged numerous independent acts of negligence by the hospital. It also alleged that these acts caused Mr. Weidig’s death. The fact that the concluding section of each count of the complaint asserted that the defendants were “jointly and severally” liable does not alter the fact that, within the statute of limitations, the plaintiffs had sued the hospital on their cause of action, thereby tolling the statute of limitations. Therefore, Dr. Morelli’s estate could, even after the statute had expired, by way of answer and new matter, plead that the hospital was solely liable to plaintiffs on that cause of action.

We have reached this conclusion by pursuing several corollary principles of law which demonstrate the trial court’s error. First, it is well-established that a plaintiff’s pleading of joint and several liability against several defendants does not bar the plaintiff from subsequently recovering a judgment for sole liability against only one of them. Rule 2232(d) specifically provides that when a plaintiff joins two or more defendants and the evidence does not justify a recovery against all of them, the trial court may dismiss some of them from the suit and the action shall continue as to the remaining defendants. In Sciandra v. Shovlin, 418 Pa. 378, 211 A.2d 437 (1965), the Supreme Court of Pennsylvania construed this rule to mean that:

... regardless of the nature of the liability pleaded by the plaintiff, he may recover against any defendant proved to be factually responsible for the event depriving the plaintiff of his legal rights.

Id., 418 Pa. at 383-84, 211 A.2d at 439.

Thus, when the plaintiffs here sued the hospital and Dr. Morelli’s estate on a theory of joint and several liability, the plaintiffs secured to themselves the right to recover a judgment against the hospital alone on the ground that it alone was solely liable to plaintiffs for their harm. The fact that they did not plead sole liability has no effect on their ability to secure such a judgment. Therefore, the failure to plead sole liability can have no effect on whether they had timely asserted their cause of action against the hospital.

Moreover, even assuming that plaintiffs would recover a judgment against both the hospital and the estate on the ground that they were jointly and severally liable, the hospital would still be liable to plaintiffs for the entire judgment, subject only to the hospital’s separate contribution rights against the estate. When the plaintiffs alleged that Dr. Morelli’s estate and the hospital were “jointly and severally” liable on the plaintiffs’ cause of action, they were alleging that the two defendants were both jointly liable and each independently liable to the plaintiffs for plaintiffs’ harm. As defined in Black’s Law Dictionary, “joint and several liability” means a liability as to which the creditor may sue one or more of the parties separately, or all of them together, at his option. Black’s Law Dictionary at 751 (5th ed. 1979). As this definition indicates, when a plaintiff seeks to impose joint and several liability on two or more defendants, he seeks to recover a judgment which he can then enforce in whole or in part against each of them. As this court opined in Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362, 1365 (1987), “[imposition of joint and several liability enables the injured party to satisfy an entire judgment against any one of the tort-feasors, even if the wrongdoing of that tortfeasor contributed only a small part to the harm inflicted.” If the defendants are held jointly and severally liable, they may have contribution rights as between them, but this does not affect the plaintiffs right to collect his judgment from either.

Thus, the practical effect of plaintiffs’ original pleading in this case was to enable the plaintiffs to recover a judgment which it could collect against either the hospital, or Dr. Morelli’s estate, or both. From both the plaintiffs’ and the hospital’s point of view, when plaintiffs filed their original complaint, the hospital was potentially liable to the plaintiffs for all of their harm. The original complaint therefore tolled the statute of limitations as to the plaintiffs’ cause of action against the hospital. Clearly, then, the estate had the right to plead, by way of answer and new matter, that the hospital alone was liable to plaintiffs on plaintiffs’ cause of action. This added nothing to the hospital’s already existing exposure to the plaintiffs, which had arisen when the plaintiffs timely filed their original complaint against the hospital.

This conclusion is also consistent with the manner in which the phrase “cause of action” as used in Rule 2252(a) has been construed. The trial court appears to have regarded pleading joint and several liability of two defendants as being a separate cause of action from pleading sole liability of each defendant. This is why the trial court found that pleading joint and several liability did not toll the statute of limitations as to sole liability. However, this is not how the phrase “cause of action” is used in Rule 2252(a) itself. Rule 2252(a) states that a defendant may join any person who may be “solely liable on the plaintiffs cause of action.” In Somers v. Gross, 393 Pa.Super. 509, 574 A.2d 1056 (1990), a panel of this court opined:

The requirement of Rule 2252(a) that joinder on the ground that the joined party is solely liable to the plaintiff “on the cause of action declared upon by the plaintiff,” has been broadly construed to mean “... the harm of which the plaintiff complains.” Garrett [Electronics Corp. v. Kampel Enterprises, Inc.], 382 Pa.Super. 352, 555 A.2d [216] at 217 [1989]____[i]n Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971) ... [t]he Court stated that the phrase “cause of action”, as used in Rule 2252, cannot be taken too literally. Rather, the Court required only that the “additional defendant’s liability [be] related to the original claim which plaintiff asserts against the original defendant ...” Id., 444 Pa. at 290, 282 A.2d at 220.

Id., 393 Pa.Superior Ct. at 514, 574 A.2d at 1058. See also Svetz for Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403, 406 (1986).

If, applying these definitions, the plaintiffs’ cause of action is to be defined as the harm of which the plaintiff complains, then clearly the question of whether the plaintiff has or has not timely asserted its cause of action against a defendant and thereby tolled the statute of limitations is unaffected by whether the plaintiff has pleaded that the defendant is jointly, or severally, or solely liable for that harm. Under any of these circumstances, the cause of action has been timely pled by the plaintiff and an attempt by one original defendant to plead that another original defendant is solely liable on the plaintiffs cause of action is not time barred.

Both the hospital and the plaintiffs argue, however, that even if it is conceded that the discontinuance of the action as to the hospital denied the estate a joinder right which it otherwise would have had, nevertheless no real prejudice was suffered by the estate as a result. They argue that since the trial court did allow the estate to join the hospital to preserve the estate’s contribution and indemnity rights, the estate has suffered no real harm. We disagree. The estate was denied a right which the rules provide it. Given the views expressed by the trial court in its opinion, clearly at the trial of this action the court would not permit the estate to argue that the hospital alone was liable to plaintiffs since the court has stated that it considers this assertion barred by the statute of limitations. Without the ability to assert that the hospital is solely liable to plaintiffs, the estate would have no way to avoid liability entirely, without the need to seek contribution or indemnity from the hospital, on the ground that the hospital alone caused plaintiffs’ harm. This court has often emphasized the importance of this right, noting that it is generally improper, for example, for a nonsuit to be granted as to an original defendant before the additional defendants have had the opportunity to present their case and show, if they can, that the original defendant is solely liable to the plaintiff. See Pushnik v. Winky’s Drive In Restaurants, 242 Pa.Super. 323, 363 A.2d 1291, 1296 (1976).

In conclusion, we find that the trial court’s allowance of a discontinuance by plaintiffs of their action against the hospital without allowing Dr. Morelli’s estate to join the hospital nunc pro tune on grounds of sole liability to plaintiffs was in error. If the hospital were kept in the case, the estate would have the right to plead this ground against the hospital. This right must be preserved. Thus, if the plaintiffs are to be allowed to discontinue their action against the hospital, the estate must be allowed to join the hospital nunc pro tunc as an additional defendant under Rule 2252(c) on the ground that the hospital is solely liable to plaintiffs, as well as to preserve the estate’s rights to contribution and indemnity. Alternatively, the trial court may disallow the discontinuance and allow the estate to pursue its joinder rights under 2252(d) by filing an answer with new matter joining the hospital on these grounds.

The order of the trial court is reversed and the matter is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The complaint was filed just two weeks before the statute of limitations on plaintiffs’ cause of action was to expire.

      . The trial court also dismissed the continuing objection of Dr. Morelli’s estate to the lack of specificity of the allegations in the amended complaint. Appellant has not included an objection to this finding in his Statement of Questions on Appeal to this court and we will not, therefore, consider that issue. Vaskie v. West American Ins. Co., 383 Pa.Super. 76, 556 A.2d 436 (1989).

      . Given our emphasis on this right, the interrelation between joinder rules, statutes of limitations, and discontinuance practice would seem a ripe topic for consideration by the Civil Procedural Rules Committee.


author: HUDOCK, Judge:

text:
    605 A.2d 386
    COMMONWEALTH of Pennsylvania, Appellee, v. Dennis JANNETTA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1992.
    Filed March 23, 1992.

      Michael L. Rosenfield, Pittsburgh, for appellant.
    Ilissa Zimmerman, Asst. Dist. Atty., Duncansville, for Com.
    Before TAMILIA, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

Dennis Jannetta, (Appellant), appeals from the denial of his motion to withdraw his plea of nolo contendere nunc pro tunc. We affirm.

The pertinent facts and procedural history are as follows: Appellant was charged with harassment by communication or address in January 1990, in Blair County. Thereafter, Appellant wrote a letter to the district justice informing him of his innocence and his intent to plead not guilty. At the preliminary hearing Appellant was allegedly threatened by the prosecuting law enforcement officer that he would receive a jail sentence if he did not plead guilty to the charge. According to Appellant, his counsel at the time advised him to plead nolo contendere because he (counsel) could get Appellant’s record expunged in one or two years. Consequently, Appellant pled nolo contendere to the charge of harassment by communication or address and, on Fébruary 21, 1990, was sentenced to ninety days of unsupervised probation, a seventy-five dollar fine, and costs.

A review of the official record further reveals: By letter dated March 17, 1990, Appellant wrote to the “Clerk of Courts Pa. Superior Court” expressing an interest in appealing a “No-Contest conviction to a Misdemeanor three, that I entered under duress due to a[n] over-zealous prosecutor and detective, plus the plaintiffs who committed numerous errors and violations against me, and caused irreparable harm to my right to due process of law.” After alleging several legal errors in the proceedings against him, Appellant requested a prompt reply to the following questions:

1. What is the maximum time period allowed for appeals before the State Superior and Supreme Courts? Are time extentions [sic] allowed??? [sic]
2. What are the filing fees and correct address for filing before Superior Court? Please include any necessary forms.
3. I am not asking for a retrial, as I want to avoid the risk of double-jeopordy [sic], while I complete my sentence of 90 days probation. Specifically, I am interested in petitioning the Court to quash the criminal complaint or conviction, while completeing [sic] my 90 days probation. Please advise if this is permissible, and if . there is a special writ to invoke for this purpose.

In the closing paragraph of the letter Appellant states:

This is not a[n] appeal until I learn if I may avoid the risk of double-jeopordy [sic], but rather a request for information. [sic] and intent to appeal. Time is important, as I entered my No-Contest plea on Feb. 21, 1990, and on March 23, it will be 30 days since the plea. I will also use this request for information to ask for a time extension, in case I decide to appeal.

A representative of the Superior Court Prothonotary returned this letter to Appellant with the following responses to Appellant’s questions written on the letter:

1. Time period for appeals is usually 30 days. — Extensions are not permitted.
2. Filing fee is $50.00 and the address for middle district is correct as above.
3. Ct. Employees are not permitted to give legal advice.

In January 1991, Appellant filed a motion to expunge his record, but withdrew it when he learned that it was not meritorious because of his conviction. On May 25, 1991, Appellant filed a petition under the Post Conviction Relief Act, (PCRA), 42 Pa.C.S. § 9541 et seq. (Purdon Supp.1991), claiming the same allegations of coercion and ineffective assistance of counsel. Having already completed serving his sentence prior to this filing, Appellant was ineligible for relief under the PCRA; the petition was, therefore, denied. See 42 Pa.C.S. § 9543(a)(l)(i) (to be eligible for relief a person must be currently serving a sentence of imprisonment, probation or parole for the crime of which he was convicted); Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (1991). Thereafter, on July 11, 1991, Appellant filed a motion to withdraw his nolo contendere plea nunc pro tunc. In his motion, Appellant once again alleged that his plea was not voluntary. On July 18,1991, the trial court denied the motion without a hearing for the same reason used by the PCRA court, i.e., that Appellant was no longer serving the underlying sentence.

Action was not taken again by Appellant until he sent a letter, dated August 5,1991, to the Superior Court Prothonotary, citing Pa.R.A.P. 905(a) and informing them that that office incorrectly returned his “timely-filed Notice of Appeal” to him instead of forwarding it to the Blair County Prothonotary. (Apparently Appellant ignores the plain meaning of, and places a different characterization on, his March 17, 1990, letter). Appellant then requested that the “Notice of Appeal” be transferred to Blair County so that he could “hire a competent attorney to reactivate my timely Notice of Appeal through the Blair County Prothonotary.” Appellant further stated that the reason he filed “that timely Notice of Appeal Pro Se, is because I was abandoned by a[n] incompetent attorney. But that does not negate the effectiveness of my timely appeal.” In closing, Appellant advised the Deputy Prothonotary, “If you are unsure of your responsibilities in this matter, as it pertains to Rule 905(a), and my petition to forward my timely appeal to Blair County Prothonotary, please consult with Court Administrator, or the president judge. Please reply.”

The Prothonotary of this Court, by letter dated August 7, 1991, promptly sent Appellant’s letter of March 17 and August 5, as per the latter’s request, to the Clerk of Courts of Blair County. Thereafter, on August 13,1991, Appellant filed a timely notice of appeal to this Court from the July 18,1991, denial of his petition to withdraw his nolo contendere plea nunc pro tunc.

On appeal, Appellant claims that the trial court abused its discretion in denying his petition without a hearing. In support, Appellant claims that even though he has completed his term of probation, he will suffer the disability of not being able to have his record expunged because of the improperly induced plea. Thus, Appellant asks this Court to reverse the order of the trial court and remand the matter for a hearing on his nunc pro tunc petition to withdraw his nolo contendere plea.

For purposes of appellate review, this Court treats a plea of nolo contendere the same as a guilty plea. Commonwealth v. Jackson, 376 Pa.Super. 433, 546 A.2d 105 (1988). “In certain cases, provisions for taking a plea of guilty in what would ordinarily be a court case within the jurisdiction of the court of common pleas have been placed within the jurisdiction of issuing authorities. This rule was initially adopted to implement procedures for such expanded issuing authority jurisdiction to accept pleas of guilty under certain circumstances in certain specified third degree misdemeanors ...” Comment, Pa.R.Crim.P. 149, 42 Pa.C.S. (Purdon Supp.1991). Section 1515 of the Judicial Code lists the third degree misdemeanors under which the issuing authorities have jurisdiction to accept guilty pleas. The section pertinent to the present appeal reads as follows: § 1515. Jurisdiction and venue

(а) Jurisdiction. — Except as otherwise prescribed by general rule adopted pursuant to section 503 (relating to reassignment of matters), district justices shall, under procedures prescribed by general rule, have jurisdiction of all of the following matters:
******
(б) (i) Offenses under Title 18 (crimes and offenses) and Title 30 (fish) which are classified as misdemeanors of the third degree, if the following criteria are met:
(A) The misdemeanor is not the result of a reduced charge.
(B) Any personal injury or property damage is less than $500.
(C) The defendant pleads guilty.
(D) The defendant is not subject to the provisions of Chapter 63 [juvenile matters].

(ii) Subparagraph (i) shall not apply to any offense under the following provisions of Title 18:

Section 4303 (relating to concealing death of child born out of wedlock).
Section 4321 (relating to willful separation or nonsupport).
Section 5103 (relating to unlawfully listening into deliberations of jury).

42 Pa.C.S. § 1515(a)(6) (Purdon Supp.1991). A review of the record reveals that the crime with which Appellant was charged, the third degree misdemeanor of harassment by communication or address, qualifies under the above section. Thus, the district justice had jurisdiction over the matter and had the power, under Pa.R.Crim.P. 149 (Purdon 1989), to accept Appellant's plea. Rule 149 provides as follows:

Rule 149. Pleas of Guilty Before Issuing Authority in Court Cases
(a) In a court case in which an issuing authority is specifically empowered by statute to exercise jurisdiction, a defendant may plead guilty before an issuing authority at any time up to the completion of the preliminary hearing or the waiver thereof.
(b) The issuing authority may refuse to accept a plea of guilty, and the issuing authority shall not accept such plea unless there has been a determination, after inquiry of the defendant, that the plea is voluntarily and understandingly tendered.
(c) The plea shall be in writing,
(1) Signed by the defendant, with a representation by the defendant that the plea is entered knowingly, voluntarily, and intelligently; and
(2) Signed by the issuing authority, with a certification that the plea was accepted after a full inquiry of the defendant and that the plea was made knowingly, voluntarily and intelligently.
(d) A defendant who enters a plea of guilty under this rule may, within ten (10) days after sentence, change the plea to not guilty by so notifying the issuing authority in writing. In such event, the issuing authority shall vacate the plea and judgment of sentence, and the case shall proceed in accordance with Rule 146, as though the defendant had been held for court.
(e) Judgment on a plea of guilty entered under this rule must be certified to the clerk of court of the judicial district within ten (10) days of disposition.

Pa.R.Crim.P. 149. The comments to the rule, in addition to that part cited above, provide that the issuing authority should make a “searching inquiry” into the voluntariness of the plea. Furthermore, a colloquy, similar to that suggested in Rule 319, should be conducted in which, at a minimum, certain information should be elicited. The comment further provides that, before the issuing authority accepts the plea, he shall advise the defendant of the right to counsel. Moreover, the authority shall advise the defendant, at the time the plea is taken, that any attempt to change the plea to not guilty must be made before the issuing authority within ten days of the imposition of sentence. Finally, the comment provides that the rule continues to require a written plea incorporating the contents specified in paragraph (c); paragraph (c) does not preclude verbatim transcription of the colloquy and plea.

This Court is permitted to affirm the actions of the trial court for reasons, supported in the record, that differ from those proffered by the trial court which originally heard the matter. Soloski v. Hetrick, 396 Pa.Super. 140, 578 A.2d 445 (1990). Included in the record on appeal is a document entitled “Pleas of Guilty Before Issuing Authority in Summary and Court Cases.” This document, signed by Appellant, his attorney, and the issuing authority, fully complies with Rule 149, supra. Moreover, near the bottom of the document, paragraph (d) of the rule is reprinted. Thus, the document clearly advised that Appellant had ten days following sentence to notify the issuing authority, in writing, that he wished to change his plea. Had he done so, Appellant would have been able to change his plea and go to trial as a matter of right; he need not have asserted any basis to “withdraw” the plea.

No transcript of the plea colloquy exists. While the comments to the rule say that a transcription of the colloquy and plea is not precluded by the rule, it does not state that such transcription is required. While the several letters written by Appellant to this Court following the entry of his plea tend to indicate the contrary, given the signed plea present in the record, and the inquiry which must be made of Appellant before such a plea is accepted, we must presume that Appellant had knowledge of his rights should he be dissatisfied with his plea. Because Appellant did not notify the issuing authority within ten days after the imposition of his sentence of his desire to change his plea, we cannot now find that the trial court erred in denying his untimely motion to withdraw his plea of nolo contendere nunc pro tunc.

Order affirmed.

      . 18 Pa.C.S. § 5504.

      . The copy of the trial court docket entries certified on appeal indicate that Appellant entered a plea of guilty to the harassment charge. However, both the order of the district justice and the guilty plea form indicate that Appellant entered a plea of no contest to the charges. The trial court, in its opinion denying post-conviction relief, also recognized Appellant’s plea as nolo contendere.

      . Rule 905(a) reads, in pertinent part, as follows:
      If a notice of appeal is mistakenly filed in an appellate court, or is otherwise filed in an incorrect office within the unified judicial system, the clerk shall immediately stamp it with the date of receipt and transmit it to the clerk of the court which entered the order appealed from, and upon payment of an additional filing fee the notice of appeal shall be deemed filed in the trial court on the date originally filed.
      Pa.R.A.P. Rule 905(a), 42 Fa.C.S. (Purdon 1990). We cite to this rule only in providing the procedural history of this appeal and do not express an opinion on the use of the rule by Appellant under the circumstances presented.

      . The certified record also reveals a pro se petition by Appellant seeking to withdraw his plea and demanding a jury trial. This petition was filed on August 16, 1991, three days after the Notice of Appeal was filed with this Court. This petition has not been acted upon by the trial court. See gen., Pa.R.A.P. 1701, 42 Pa.C.S. (Purdon 1990).

      . This sub-section was repealed by Section 3 of Act 1985, Sept. 27, P.L. 238, No. 60, insofar as it is inconsistent with the act. That section, currently codified in part at 42 Pa.C.S. § 1520 (Purdon Supp.1991), provides that a defendant need not plead guilty in order to be accepted by the district justice into an adjudication alternative program. An adjudication alternative program, e.g., public service programs, is not at issue in the present appeal.