author: WIEAND, Judge:

text:
    521 A.2d 942
    Frank MARKEY v. Dr. Joseph MARINO. (Two Cases). Appeal of Allen L. FEINGOLD, Esq. (Two Cases).
    Superior Court of Pennsylvania.
    Argued May 29, 1986.
    Filed Jan. 28, 1987.
    Reargument Denied March 24, 1987.

      Allen L. Feingold, Philadelphia, in propria persona.
    John McGrath, Philadelphia, for Marino, appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

These consolidated appeals are from orders directing Allen Feingold, Esquire, to pay fines and counsel fees incurred because of “his conduct in stonewalling discovery proceedings without any reasonable basis and for deliberately ignoring court orders.” We will consider seriatim the issues raised.

Frank Markey, by his attorney, Allen Feingold, commenced an action against Dr. Joseph Marino for medical malpractice. On December 17, 1981, defense counsel caused a set of interrogatories to be served on the plaintiff. Later, on January 5, 1982, defense counsel also caused to be served a notice for the production of certain documents. Feingold, on behalf of the plaintiff, filed objections to the interrogatories, which the trial court ordered stricken for lack of merit. No objections were filed to the motion to produce. Thereafter, the plaintiff neither answered the interrogatories nor produced the requested documents. On March 5, 1982, the trial court granted a defense motion to compel answers to interrogatories and assessed counsel fees against plaintiff in the amount of $150. On March 30, 1982, the court entered an order directing the production of documents and making an additional award of counsel fees in the amount of $150 against the plaintiff.

When the court orders directing discovery were not obeyed, the trial court, on January 4, 1984, entered a judgment of non pros against the plaintiff. Plaintiff filed a motion to reconsider, which the court heard on May 8, 1984. At that hearing, the court communicated a willingness to remove the judgment of non pros if plaintiff would comply with the court’s orders of March 5 and March 30, 1982. The hearing court also determined that the refusal to comply had been the fault of Allen Feingold, plaintiffs counsel. Therefore, the court directed that Feingold pay counsel fees incurred by defendant in the amount of six hundred ($600) dollars.

This order was entered on May 9, 1984; it directed Feingold to make payment before May 14, 1984. On May 10, 1984, Feingold withdrew his appearance on behalf of the plaintiff, and new counsel entered an appearance on plaintiffs behalf. Nevertheless, several days later Feingold filed a single appeal in the Superior Court from the orders of March 5, 1982, March 30, 1982, and May 9, 1984. However, he failed to post security for the amount assessed against him personally by the order of May 9, 1984 and did not otherwise obtain a supersedeas. When the defendant subsequently attempted to enforce the order of May 9, 1984, the trial court scheduled a hearing for January 4, 1985. Feingold posted the necessary security on January 3, 1985; however, he did not notify the court or opposing counsel of this fact, and all appeared for hearing on January 4. At the conclusion of the hearing, the court found Feingold in contempt for failing to comply with the court’s order of May 9, 1984 and directed that he pay a fine of $250 and additional counsel fees in the amount of $300. Feingold filed an appeal from this order, and it was consolidated for argument in this Court with the prior appeals.

The appeals from the orders of March 5, 1982 and March 30, 1982 must be quashed. These orders were interlocutory. They were sanction orders entered pursuant to authority contained in Pa.R.C.P. 4019 and pertained to discovery proceedings in the action brought by Frank Mar-key against Dr. Joseph Marino. The record does not disclose that the underlying action has been adjudicated finally. This Court has previously said:

As a general rule, this Court will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judgment in the main action.

McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 410, 493 A.2d 84, 87 (1985). See also: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985).

With respect to these orders, moreover, Feingold is not an aggrieved party and has no standing to pursue an appeal. See: William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-281 (1975). See also: Independent State Store v. Pennsylvania Liquor Control Board, 495 Pa. 145, 154, 432 A.2d 1375, 1379-1380 (1981); Pa.R.A.P. 501. The orders entered by the court in March, 1982 did not require Feingold to pay counsel fees, but rather directed his client, the plaintiff in the undecided tort action, to pay such fees. Feingold, having withdrawn his appearance, is no longer an interested party. He is not counsel for the plaintiff, and he has no personal interest in the order.

Pa.R.C.P. 4019 authorizes trial courts to supervise discovery in civil actions and to enforce their orders by imposing sanctions. However, “[t]he imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the court.” Lewis v. Pruitt, 337 Pa.Super. 419, 424, 487 A.2d 16, 18 (1985). See: Roman v. Pearlstein, 329 Pa.Super. 392, 399, 478 A.2d 845, 848 (1984); Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 481, 478 A.2d 889, 891 (1984); Feingold v. Philadelphia National Bank, 313 Pa.Super. 579, 583, 460 A.2d 339, 341 (1983); Gonzales v. Procaccio Brothers Trucking Co., 268 Pa.Super. 245, 251, 407 A.2d 1338, 1341 (1979). “It is clear that in the exercise of judicial discretion in formulating an appropriate sanction order, the court is required to select a punishment that ‘fits the crime.’ ” Brunetti v. Southeastern Pennsylvania Transportation Authority, supra, 329 Pa.Super. at 481-482, 478 A.2d at 891. In devising a suitable sanction the court must balance the need for a prompt disposition of the case against the substantive rights of the parties. See: Roman v. Pearlstein, supra. On appeal, a reviewing court will not reverse unless it is shown that a trial court palpably abused its discretion.

Following a hearing on May 8, 1984, the trial court determined that the plaintiffs failure to comply with the court’s discovery orders, in fact, had been the product of counsel’s intransigent obstinacy. Finding that Feingold had been the real culprit, the trial court vacated its prior order entering a judgment of non pros against plaintiff and assessed against Feingold the costs and counsel fees incurred by defendant in obtaining the discovery which Fein-gold had obstructed. Such an order was authorized by rule. See: Pa.R.C.P. 4019(g)(1). See also: Hall v. Lee, 285 Pa.Super. 542, 546-547, 428 A.2d 178, 180 (1981) (dictum). We perceive no abuse of the trial court’s discretion when it directed the payment of these costs by the attorney who had made them necessary. The court’s order of May 9, 1984, therefore, will be affirmed.

The trial court’s order of January 4, 1985, however, must be reversed. The only explanation offered for that order has been that it was intended to compel Feingold to comply with the court’s ■ order of May 9, 1984 which had directed Feingold to pay defendant’s counsel fees in the amount of $600 prior to May 14, 1984. Contempt proceedings to compel compliance with the order for counsel fees, however, were civil in nature. They were intended to coerce Feingold into paying counsel fees for the benefit of the defendant in the underlying civil action. See: Schnabel Associates, Inc. v. Building and Construction Trades, 338 Pa.Super. 376, 386, 487 A.2d 1327, 1332-1333 (1985), quoting Knaus v. Knaus, 387 Pa. 370, 378, 127 A.2d 669, 673 (1956). Such an order must contain “conditions on the sentence so as to permit the contemnor to purge himself; he must be allowed to carry the keys to the jail in his pocket.” Schnabel Associates, Inc. v. Building and Construction Trades, supra, 338 Pa.Super. at 386, 487 A.2d at 1332, quoting Grubb v. Grubb, 326 Pa.Super. 218, 222-223, 473 A.2d 1060, 1062 (1984). The order entered by the trial court failed to contain conditions by which Feingold could purge himself. The contempt order, therefore, was defective.

The order which the trial court attempted to enforce for the benefit of the defendant in the underlying action was for the payment of money. That order, however, had been appealed to the Superior Court. On January 3, 1985, the day before the contempt hearing, Feingold deposited cash in the office of the prothonotary of the lower court in the amount of 120% of the amount which he had been directed to pay by the court’s order of May 9, 1984. The deposit of this money operated as a supersedeas to the order directing him to pay counsel fees. Pa.R.App.P. 1731. Feingold’s failure to pay money as directed by the trial court’s order, therefore, could not properly be made a basis on which to find him in contempt and punish him for his failure to pay the order.

The appeals from the orders of March 5, 1982 and March 30, 1982 are quashed; the order of May 9, 1984 is affirmed; and the order of January 4, 1985 is reversed and set aside.

      . A petition for allowance of an appeal from these interlocutory orders was denied by the Superior Court on May 21, 1982.

      . Pa.R.C.P. 4019(g)(1) provides:
      (g)(1) Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney’s fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
      (emphasis added).

      . We reject out of hand the argument advanced by Feingold that the trial judge should have recused himself because of a personal animosity held against Feingold. The record does not support such an argument. Moreover, the trial judge was not requested to recuse himself until after he had found Feingold in contempt on January 4, 1985.

      . Although Feingold has not raised the issue on appeal, it is obvious that the trial court failed to adhere to the five step process mandated by the Supreme Court in Alternose Construction Co. v. Construction Trades Council of Philadelphia and Vicinity, 449 Pa. 194, 296 A.2d 504 (1972). See also: Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969); Schnabel Associates, Inc. v. Building and Construction Trades, supra; Village Gentry, Inc. v. West Village, 316 Pa.Super. 404, 463 A.2d 427 (1983).


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    521 A.2d 946
    Eugene J. PALLADINO, III, Administrator of the Estate of Cynthia S. Palladino, a/k/a Cindy Palladino, Deceased v. Andrew DUNN, Intervenor, v. HARLEYSVILLE INSURANCE COMPANY v. BELLEFONTE UNDERWRITERS INSURANCE COMPANY v. GOLD BRAND DATSUN, INC., Additional Defendant. Appeal of BELLEFONTE UNDERWRITERS INSURANCE COMPANY and Gold Brand Datsun, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1986.
    Filed Feb. 24, 1987.

      Thomas J. Barnes, Philadelphia, for appellants.
    Allen W. Toadvine, Langhorne, for Dunn, appellee.
    Jay H. Karsch, Doylestown, for Harleysville, appellee.
    Before CIRILLO, President Judge, and MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal is from a declaratory judgment in which the lower court determined that Bellefonte Underwriters Insurance Company (Bellefonte) was the proyider of primary liability coverage for damages arising from a motor vehicle accident where plaintiff’s decedent was killed and a passenger injured. This accident occurred while decedent was in the process of purchasing an automobile from Gold Brand Datsun, Bellefonte’s insured. In this case of first impression we are called upon to determine whether the decedent had a reasonable opportunity to inspect the vehicle she was purchasing and whether acceptance had occurred under the provisions of the Uniform Commercial Code § 2606, 13 Pa.C.S. 2606.

On February 9, 1983, Cynthia Palladino visited the showroom of Gold Brand Datsun and expressed interest in purchasing a Model 200 SX Roadster with a dealer-installed top. She did not test drive the car. She did, however, agree to a price. She also left a $5.00 deposit and signed a purchase order which listed the total price of the vehicle as $9,875. Ms. Palladino returned to Gold Brand the following evening to leave an additional deposit in the form of an insurance check for $5,462.35. On February 11, Ms. Palla-dino had her automobile insurance carrier, Harleysville Insurance Company (Harleysville), add the 1983 Datsun 200 SX coupe to her auto insurance policy. Ms. Palladino returned to Gold Brand on February 17, 1983, the date the car was ready for delivery. She brought the balance of money due, $4,406.65, and her automobile license plate with her. Andrew Dunn, the Gold Brand salesman, affixed her license plate to the Datsun SX 200. Ms. Palladino refused to sign the final papers or transfer the remaining balance of the purchase price without a test drive. Dunn attempted to convince the decedent that any problems would be corrected during the warranty period, but she continued to insist on a test drive. Dunn then attempted to drive her in the car, but Ms. Palladino stated. “No, I have bought this car and it is mine, I want to drive it.” After that exchange, Dunn took the passenger seat, with Ms. Palladino driving. As they pulled out onto the highway from the dealer’s lot, the fatal collision occurred.

Plaintiff, on behalf of Ms. Palladino’s estate, filed a declaratory judgment action to determine the issue of whether insurance coverage would be provided by decedent’s carrier, Harleysville, or Gold Brand’s carrier, Belle-fonte. On February 28, 1986, the lower court found the vehicle to be owned by Gold Brand Datsun and directed that Bellefonte was to provide primary coverage. The lower court also directed Harleysville to provide excess coverage since the Datsun 200 SX was a “covered auto” under the terms of decedent’s policy. Bellefonte filed a motion for post-trial relief on March 17, 1986, under Pa.R.C.P. 227.-1(a)(2), which was denied. This appeal ensued.

A procedural irregularity must be addressed initially. The provisions of Pa.R.C.P. 1601(a) require that in an action for declaratory judgment “[t]he practice and procedure shall follow, as nearly as may be, the rules governing the Action in Equity.” This Court in Hertz v. Hertz, 302 Pa.Super. 259, 448 A.2d 626 (1982), interpreted this rule to require “an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R.C.P. 1518....” Id., 302 Pa.Superior Ct. at 261, 448 A.2d at 627. In the usual declaratory judgment proceeding, this Court will refuse to consider an issue which has not been preserved by the filing of exceptions to the order or decree entered by the trial court. While Appellant filed a post-trial motion under Pa.R. C.P. 227.1(a)(2), it was not timely filed, and was denied by the lower court. In this case, however, the order from which the appeal was taken contained no findings of fact, no conclusions of law, and no language to suggest that the order was anything but a final order or that parties were required to file exceptions to preserve a right of appeal. This Court has determined in Storti v. Minnesota Mutual Life Insurance Company, 331 Pa.Super. 26, 479 A.2d 1061 (1984) that the failure to file exceptions in these circumstances will be excused. Id. 331 Pa.Super. at 27, 479 A.2d at 1062. Accordingly, the failure to file exceptions will not defeat appellate review. See also, Recommendation No. 79, Proposed Amendment to Rule of Civil Procedure 227.1 Governing Post-Trial Relief, Pa., 515 A.2d XC (1986).

Our scope of review is narrow. Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 479 A.2d 1037 (1984). Inasmuch as Pennsylvania Rule of Civil Procedure 1601(a) provides that a declaratory judgment action follow the practice and procedure of an action in equity, we will review the determination of the court below as we would a decree in equity. Id. The factual conclusions of a chancellor have the force of a jury verdict and will be disturbed on appeal only where they are not supported by adequate evidence, Shepley v. Dobbin, 351 Pa.Super. 182, 505 A.2d 327 (1986). However, the chancellor’s inferences and conclusions, which are drawn from the facts, and the application of the law are always subject to review. Supp, supra.

The court below decided the proper construction of the insurance policies in this case as a matter of law and these issues are not now before us.

The only contention raised on appeal is that the lower court committed error when it held Cynthia Palladino not to be the owner of the 200 SX Datsun roadster she was driving at the time of her death. After careful consideration, we have concluded that Ms. Palladino had not accepted the vehicle under the provisions of Uniform Commercial Code Section 2-606, 13 Pa.C.S. § 2606, and accordingly affirm the decision of the lower court. The substantive issues involved in this action were well-stated and correctly decided by the learned trial judge.

We adopt the following portions of his opinion.

Bellefonte does not dispute that its policy would apply if the vehicle was owned by Gold Brand Datsun at the time of the accident. It argues, however, that the risk of loss had passed to Ms. Palladino because she had transferred her insurance coverage from her old car to the one in question and she was driving the car and had complete control of it at the moment of impact.
We find, nevertheless, that the transaction was not complete and that ownership of the vehicle had not passed to Ms. Palladino at the time of her death. She had not paid the balance of the money due nor had she signed the final papers. She was not free to take possession of the vehicle and leave the premises alone. At the time of the accident, Andrew Dunn, the salesman, was riding in the car with her as typical on a test drive.

Bellefonte argues that under the Pennsylvania Uniform Commercial Code, tender of the vehicle which conformed to the terms of the contract triggered Ms. Palladino’s obligation to pay for it and that Gold Brand Datsun could have successfully compelled her to perform the contract. It bases its argument on the deposition and affidavit which it says show that there were no mechanical problems with the car and that all of Ms. Palladino’s requests concerning optional equipment were fulfilled.

Bellefonte argues that Ms. Palladino had a right to reject the vehicle only if it failed to conform to the contract or to revoke her acceptance only under certain conditions. We find, however, that there was no acceptance. It was at this point in time that the transaction was cut short.

We cannot assume, as Bellefonte would have us, that if any substantial nonconformity had existed either Gold Brand Datsun’s mechanic or Ms. Palladino would have discussed it upon entering the vehicle. Nor can we assume that had Ms. Palladino rejected the car, Gold Brand Datsun would have proved that it conformed in every respect to the terms of the contract.

The [Uniform Commercial Code] Code defines “acceptance” as follows:

What constitutes acceptance of goods

(a) General rule. — Acceptance of goods occurs when the buyer:

(1) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity:
(2) fails to make an effective rejection (section 2602(a)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(3) does [any] act inconsistent with the ownership of the seller; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
(b) Part of Commercial unit. — Acceptance of part of any commercial unit is acceptance of that entire unit.
13 [Pa.C.S.] § 2606 (emphasis added).

It is clear from the above that Ms. Palladino was entitled to a reasonable opportunity to inspect the vehicle before acceptance. This she did not have. The accident occurred as she was pulling out of Gold Brand Datsun’s parking lot. We cannot conclude that any nonconformity or defect, substantial or insignificant, could have been discovered in such a short span of time. In light of the fact that there was no acceptance, ownership had not passed from Gold Brand Datsun to Ms. Palladino at the time of the accident. Therefore, Gold Brand Datsun’s insurer, Bellefonte, must provide primary coverage.

Opinion, 2/28/86 at 6-8.

Appellant offers no reason why the lower court’s reliance on Uniform Commercial Code Section 2-606 may have been improper. Instead, appellants assert in a conclusory fashion that Ms. Palladino was permitted a “reasonable time” to inspect and then to reject the Datsun 200 SX or to revoke her acceptance. It is obvious that Ms. Palladino had no time to.test drive the car. It had barely left Gold Brand’s sales lot. The gravamen of Appellants’ argument is that had decedent lived, she would have accepted the car since it had no defects and, had she lived, the dealer could have compelled her to complete the transaction.

The question of what might have happened if the accident had not occurred is speculative and completely irrelevant to the issue of whether ownership of the vehicle had transferred at the moment of impact. The decedent was entitled to a reasonable opportunity to inspect the car under 13 Pa.C.S. § 2606(a)(1) and (2). She was deprived of the opportunity to do so. The transaction was permanently suspended at the point of decedent’s test drive, forestalling any possibility that she would have a reasonable opportunity to inspect and accept the vehicle. We find no error.

The order of the lower court is affirmed.

      . Appellant’s question:
      I. Did not the lower court err in holding that Cynthia Palladino did not own the vehicle in question, where the Seller had perfected its right to enforce the contract, by incorrectly holding that no acceptance of the Seller’s tender of conforming goods identified to the contract had occurred.


author: HOFFMAN, Judge:

text:
    521 A.2d 950
    COMMONWEALTH of Pennsylvania v. James GRISPINO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1986.
    Filed Feb. 24, 1987.

      Ruth R. Shafer, Assistant Public Defender, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com., appellee.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery and burglary. Appellant contends that the increase in his sentence on the robbery count, after the trial court vacated his sentences on the counts of aggravated assault, recklessly endangering another person, and theft by unlawful taking, violates the prohibition against double jeopardy. We disagree and affirm the judgment of sentence for robbery and burglary.

On August 14, 1984, appellant was arrested and charged with various offenses in connection with the August 11, 1984 beating and robbery of an eighty-year-old man. Following a January 23-24, 1985 jury trial, appellant was found guilty of robbery, 18 Pa.C.S.A. § 3701(a)(l)(i), burglary, id. § 3502, aggravated assault, id. § 2702(a)(1), recklessly endangering another person, id. § 2705, and theft by unlawful taking, id. § 3921. Appellant filed no post-verdict motions. On April 22, 1985, appellant was sentenced to the following consecutive terms of imprisonment: 48-to-96 months for robbery, 17-to-34 months for burglary, 17-to-34 months for aggravated assault, 6-to-12 months for recklessly endangering another person, and 6-to-12 months for theft by unlawful taking. Appellant received a total sentence of 94-to-188 months.

Both appellant and the Commonwealth filed motions to modify sentence. Both parties alleged that the aggravated assault, recklessly endangering another person, and theft by unlawful taking offenses merged with the robbery offense. The Commonwealth contended, in addition, that appellant should have been sentenced within the aggravated range of the sentencing guidelines, 204 Pa.Code §§ 303.-1-.9, reprinted following 42 Pa.C.S.A. § 9721 (Purdon 1982 & Supp.1986), for the burglary and robbery offenses because of aggravating factors including the brutal nature of the crime. See Commonwealth’s Motion for Modification of Sentence at 2.

At the May 17, 1985 hearing on the motions, the trial court stated that it had erred in imposing sentence for the crimes of aggravated assault, recklessly endangering another person, and theft and vacated its sentence of April 22. See N.T. May 17, 1985 at 3-4, 13. The court then resen-tenced appellant on the remaining charges to consecutive terms of imprisonment as follows: 72-to-144 months for robbery and 12-to-24 months for burglary,[] for a total sentence of 84-to-168 months. Appellant then filed a motion to modify sentence alleging, inter alia, that the increase in sentence on the robbery charge constituted double jeopardy. The trial court denied the motion, and this appeal followed.

Appellant contends that the trial court’s increase of his robbery sentence is a violation of double jeopardy. We disagree. This Commonwealth’s double jeopardy provision, Pa. Const, art. I, § 10, provides protection against multiple punishments coextensive with its federal counterpart, U.S. Const, amend. V. Commonwealth v. Williams, 344 Pa.Superior Ct. 108, 116, 496 A.2d 31, 36 (1985) (en banc). In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court held that a federal statute permitting the government to seek an increased sentence on appeal, does not violate the principles of double jeopardy. Id. at 140, 101 S.Ct. at 439.

In this state, the Commonwealth is permitted by statute to appeal from the “discretionary” aspects of a sentence, see 42 Pa.C.S.A. § 9781(b), but such appeals are granted at this Court’s discretion and not as of right. Id.; Common wealth v. Easterling, 353 Pa.Superior Ct. 84, 89, 509 A.2d 345, 347 (1986). These Commonwealth appeals are limited to certain defined instances. “[I]f a brief review of the record convinces [this Court] that one of the ... three circumstances [as defined in 42 Pa.C.S.A. § 9781(c) ] is before us, then there is a substantial question that the sentence imposed is inappropriate and our appellate review is justified.” Commonwealth v. Easterling, supra, 353 Pa.Superior Ct. at 89, 509 A.2d at 347 (footnote omitted). Under § 9781(c), we can vacate a judgment of sentence and remand for resentencing if we find that:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

42 Pa.C.S.A. § 9781(c).

A sentence challenged by the Commonwealth pursuant to 42 Pa.C.S.A. § 9781 may be increased by the appellate court without offending double jeopardy principles. See Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 477 n. 2, 491 A.2d 1352, 1356 n. 2 (1985); Commonwealth v. Rainey, 338 Pa.Superior Ct. 560, 562-63, 488 A.2d 34, 36 (1985); Commonwealth v. Anderson, 304 Pa.Superior Ct. 476, 481-82, 450 A.2d 1011, 1014 (1982). A sentencing court also may increase a sentence without violating the protection from double jeopardy when ruling on a motion to modify sentence. Commonwealth v. Rainey, supra 338 Pa.Superior Ct. at 563, 488 A.2d at 36. Under Pa.R.Crim.P. 1410, the Commonwealth must, in order to preserve its right to appeal the discretionary aspects of a sentence, file a motion to modify sentence in which it presents its argument to the sentencing court. Commonwealth v. Anderson, supra 304 Pa.Superior Ct. at 482, 450 A.2d at 1014.

Here, both appellant and the Commonwealth filed motions to modify appellant’s sentence. The Commonwealth contended that appellant’s sentences for burglary and robbery should have been within the aggravated ranges of the sentencing guidelines in light of certain aggravating factors. Appellant challenged the sentence for burglary on the ground that his sentence was outside of the minimum range although the court had stated at sentencing that all sentences were within the minimum ranges. See supra note 2. He also contended that three of the charges should have merged for sentencing purposes. The trial court, in ruling on both parties’ motions, decreased the sentence for burglary to a sentence within the minimum range, vacated sentences on the charges that merged, and increased the sentence for robbery from 48-to-96 months to a sentence of 72-to-144 months, a sentence within the aggravated range.

Because the Commonwealth challenged a discretionary aspect of appellant’s robbery sentence, that is, that he should have been sentenced in the aggravated rather than minimum range, the lower court would not have violated the double jeopardy clause by increasing appellant’s sentence on that ground. See Commonwealth v. Rainey, supra. This case is distinguishable from Rainey, however, because here, the lower court increased appellant’s sentence for robbery in order to maintain a sentence close to appellant’s original overall sentence. Order, May 17, 1985. The lower court explained that it had determined that a lengthy period of incarceration was warranted in appellant’s case, and that, after the sentences on three counts had been vacated, the aggregate sentence was shorter than the sentence that the court had intended to impose. Lower Court Opinion at 3-4. Thus, we must determine whether the lower court properly increased appellant’s sentence even though the increase was not in response to the Commonwealth’s challenge to the discretionary aspects of the sentence and was, instead, effected solely to maintain the original sentence. Our Supreme Court’s recent decision in Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), compels us to conclude that the lower court acted properly in increasing appellant’s sentence.

In Goldhammer, the defendant had received two consecutive sentences of one-to-five-years each on a theft charge and a forgery charge. The defendant received suspended sentences on a number of other charges. After the defendant filed a motion to modify his sentence, the court modified his sentence for theft to two-to-five-years, and reduced his sentence for forgery to a concurrent term of five-years probation. The defendant appealed his convictions to this Court. We held that thirty-four of his convictions were barred by the statute of limitations and reversed the judgments of sentence on those charges. All other judgments of sentence were affirmed. Commonwealth v. Goldhammer, 322 Pa.Superior Ct. 242, 469 A.2d 601 (1983). The only charge for which appellant had originally received a jail sentence was among those convictions that were reversed. The Commonwealth filed a petition for reargument in this Court asking us to remand the case to the trial court for resentencing in light of the reversed convictions. We denied the petition and our Supreme Court affirmed on the grounds that the double jeopardy clause barred resentencing under the circumstances. Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307, rev’d sub nom Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).

The Commonwealth appealed the case to the United States Supreme Court, however, and on remand our Supreme Court reversed its position and held that a remand

for resentencing was proper. The Court held that when a defendant appeals a judgment of sentence, he or she accepts the risk that the Commonwealth may seek a remand for resentencing if the decision in the lower court upsets the original sentencing scheme. Commonwealth v. Goldhammer, supra, 512 Pa. at 592, 517 A.2d at 1283. In addition, in Commonwealth v. Ford, 315 Pa.Superior Ct. 281, 300-01, 461 A.2d 1281, 1291 (1983), this Court, quoting the United States Court of Appeals for the Third Circuit, stated that:

[Wjhen a defendant has been convicted after trial and sentenced under a multicount indictment and on appeal his conviction and sentence as to certain counts is set aside because such counts enhanced the sentence for the predicate felony which contained its own enhancement provision, the constitutional guarantee against double jeopardy does not preclude vacating the sentence on the predicate felony counts and the imposition of a new sentence by the trial judge on the remaining counts, which may be greater than, less than, or the same as the original sentence.

Id. (quoting United States v. Busic, 639 F.2d 940, 953 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981)).

Here, both appellant and the Commonwealth filed motions to modify the sentence. The court agreed with appellant that three of the charges merged. The court vacated the entire sentence and resentenced on only the burglary and robbery charges. The sentence on the robbery charge was increased from the original sentence on that charge, yet the aggregate sentence after resentencing was lower than the original aggregate sentence. Under the reasoning expressed in Goldhammer and Ford then, it is not relevant that the lower court’s increase in appellant’s sentence was not in response to the Commonwealth’s petition to sentence him within the aggravated range because the court was not precluded from resentencing him to conform the overall sentence to that originally intended.

Accordingly, we are compelled to conclude that the lower court did not violate double jeopardy principles by increasing appellant’s sentence, and we affirm the judgment of sentence.

Affirmed.

      . The docket lists these motions as having been filed on May 6, 1985, beyond the ten-day period in which such motions must be filed. See Pa.R.Crim.P. 1410. Because the trial court heard argument on both motions, however, we will assume that the court considered them as having been filed timely. Cf. Commonwealth v. Wall, 321 Pa.Superior Ct. 152, 153 n. 1, 467 A.2d 1174, 1175 n. 1 (1983) (where the record does not indicate when the motion to modify was filed and the trial court heard it, Court assumed that it was filed within ten days after imposition of sentence).

        . At the original sentencing hearing, the trial court stated that it was sentencing appellant within the “standard,” that is, minimum, range of the sentencing guidelines. See N.T. April 22, 1985 at 55-56. The court's minimum sentence of 17 months on the burglary count, however, was outside the minimum range of 8-to-12 months for a defendant with an offense gravity score of seven ("Burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present”) and a prior record score of zero. As appellant pointed out in his motion to modify sentence, when a court imposes consecutive sentences for offenses arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score, and, for the remaining offenses, the prior record score is zero. See 204 Pa.Code § 303.6(a). Here, the robbery offense (inflicts severe bodily injury) had the highest offense gravity score (nine). Accordingly, appellant’s prior record score of two could be used only in computing appellant’s sentence for that charge. The trial court apparently also used it in computing appellant's sentence on the burglary charge because the original minimum sentence of 17 months was within the minimum range for a defendant with an offense gravity score of seven and a prior record score of two. Although the court did not explicitly so state, it evidently agreed with appellant and reduced the burglary sentence accordingly.

      . The minimum range for a defendant with an offense gravity score of nine and a prior record score of two is 48-to-72 months. 204 Pa.Code § 303.9. The aggravated range is 72-to-90 months. Sentences at the boundary of the minimum range and the aggravated range are presumed to be in the aggravated range unless the sentencing court explicitly states otherwise. Commonwealth v. Hoover, 342 Pa.Superior Ct. 163, 165-66, 492 A.2d 443, 444 (1985).

      . In addition, the court decreased the sentence on the burglary charge, thus apparently rejecting the Commonwealth’s contention that he should have been sentenced within the aggravated range.


author: POPOVICH, Judge:

text:
    521 A.2d 954
    Victor M. CURTI, Jr. v. Theo M. OCHODSKI and Allegheny Mechanical Contracting, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1986.
    Filed Feb. 24, 1987.

      William R. Bishop, Jr., Pittsburgh, for appellants.
    Phillip J. Binotto, Jr., Washington, for appellee.
    Before CIRILLO, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment entered in favor of appellee, Victor M. Curti, Jr. We reverse.

Appellee commenced the instant action by filing a petition for rule to show cause why appellants, Theo M. Ochodski and Allegheny Mechanical Contracting, Inc. (AMC), should not be held in civil contempt. Curti and Ochodski had been co-owners of AMC and opposing litigants in a previous lawsuit concerning the dissolution of AMC. That suit was ended through a settlement agreement entered into by the parties and approved by the trial court in a consent order. When appellants refused to disburse certain pension funds to appellee, appellee filed the instant petition averring appellants had violated the settlement agreement and requesting they be held in civil contempt. The trial court agreed and entered judgment against appellants.-

Appellants raise four issues before this court: (1) the trial court erred by assuming equity jurisdiction when there was an adequate remedy at law; (2) the trial court denied appellants due process by refusing to permit their defense; (3) the trial court abused its discretion by enforcing the agreement which was fraudulently induced by appellee; and (4) the trial court erred by awarding counsel fees.

Initially, we note that we have stated “that the terms of a consent decree cannot be modified in the absence of fraud, accident or mistake.” Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 448, 454 A.2d 618, 620 (1982). In the case before us, appellants have contended from the outset that appellee engaged in fraud and induced appellants to agree to the settlement which resulted in the consent order. After appellants discovered the alleged fraud, they refused to comply with the terms of the agreement. Under the terms of the settlement, appellants agreed to vest appellee’s pension fully and return this money to him. Appellants claim they would not have so agreed absent the fraud. The trial court, however, refused to consider appellants’ claim, finding appellee entitled to the money under the terms of the agreement. We find it error to have refused to consider whether the agreement was invalid due to fraud. Commonwealth v. United States Steel Corporation, 15 Pa. Commonwealth Ct. 184, 325 A.2d 324 (1974).

More importantly, appellants are correct in their argument that appellee sought the wrong relief procedurally. While consent decrees are binding on the parties and one may not flaunt the court’s directives, Advanced Management Research, Inc. v. Emanuel, 439 Pa. 385, 266 A.2d 673 (1970), nonetheless a “consent decree is not a legal determination by the court in matters in controversy but is merely an agreement between the parties — a contract binding the parties thereto to the terms thereof.” Universal Builders Supply, Inc. v. Shaler Highlands Corp., 405 Pa. 259, 265, 175 A.2d 58, 61 (1961). As such, appellee’s remedy was not an action for contempt but rather a proceeding under agreement.

Our decision is underlined by the fact that the settlement agreement was not incorporated directly or by reference into the consent decree. The trial judge himself stated he had no familiarity with the settlement agreement, the terms of which had been negotiated by the parties and presented to him for approval of a settlement (N.T. 5/22/86 pp. 59-60). Thus, the consent decree in the case before us is clearly distinguishable from Pennypack Woods Home Ownership Ass’n. v. Regan, 298 Pa.Super. 170, 444 A.2d 715 (1982) where we found the trial court fully participated in the settlement, set forth rights and obligations of the parties in the consent decree and specifically stated it would use its powers against a party who failed to carry out the decree. See also Advanced Management, supra (consent decree incorporated the terms of the settlement and directed it be performed).

Judgment reversed.


author: HESTER, Judge:

text:
    521 A.2d 955
    Lynda BABISH, Appellant, v. John A. BABISH.
    Superior Court of Pennsylvania.
    Submitted Dec. 22, 1986.
    Filed Feb. 25, 1987.

      Kevin J. Rozich, Ebensburg, for appellant.
    Andrew D. Gleason, Johnstown, for appellee.
    Before WATKINS, CERCONE and HESTER, JJ.
   HESTER, Judge:

Appellant, Lynda Babish, and appellee, John Babish, were divorced on January 15, 1985. The parties had four children. On February 7, 1984, appellant filed a complaint for child support. The Cambria County Court of Common Pleas ordered appellee to pay $175.00 per month support.

A status conference was held on August 5, 1985, at which time appellee was paying support of $175.00 per month for two children still living with appellant. On August 20, 1985, appellee filed a petition to decrease support, asserting he was earning less money because his workers’ compensation benefits had been terminated, he had secured employment, and he was earning less than he had received for his disability. Appellant’s brief at 4. Another conference was held on September 17, 1985. At this conference, counsel for appellant asked appellee if he had received a lump sum workers’ compensation award, and appellee specifically denied receiving such an award. The court reduced the support order from $175.00 to $140.00 per month on September 20, 1985. On November 7, 1985, appellant filed a petition to increase support, asserting that appellee had received a lump sum workers’ compensation award. A hearing was held on December 12, 1985, before a hearing officer.

Due to the significance of the misrepresentation to the court, another hearing was held before a permanent hearing officer on January 7, 1986. Appellee admitted that he had lied about receiving the $26,000.00 workers’ compensation award, N.T., 1/7/86, at 23, but declared that he had spent the money to purchase a house. Based on this testimony, the permanent hearing officer determined that the previous reduction of appellant’s obligation of support to $140.00 per month had been proper. He recommended, however, that appellee pay an additional $60.00 per month on arrearages. Following oral argument, the Honorable Caram Abood dismissed appellant’s exceptions to the permanent hearing officer’s findings of fact and recommendation. This appeal followed.

Appellant asserts that the court erred in failing to consider the $26,000.00 lump sum workers’ compensation award in determining appellee’s ability to pay child support. We agree.

Our scope of review in support proceedings is narrow. Absent a clear abuse of discretion, we will defer to the order of the trial court. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). However, “if ... the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.” Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 39, 457 A.2d 98, 102 (1983) (citations omitted). Further, we have held that, before entering a child support order, the trial court “should consider the parent’s income and the full nature and extent of the parent’s property interests and financial resources.” Pawol v. Pawol, 293 Pa.Super. 29, 34, 437 A.2d 974, 977 (1981).

In Witherow v. Witherow, 288 Pa.Super. 519, 432 A.2d 634 (1981), we held that the trial court abused its discretion in refusing to consider a $26,000.00 lump sum workers’ compensation award when determining the husband’s ability to pay child support. Such consideration was necessary to allow evaluation of the “full nature and extent of the parent’s property interests and financial resources.” Id., 288 Pa.Superior Ct. at 521, 432 A.2d at 634 (emphasis in original).

Similarly, in Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985), we held that a court must consider an entire tort award received by the father in determining his financial resources for child support. We held that Wither-ow was not distinguishable simply because the workers’ compensation award in that case represented replacement for lost earnings, whereas the tort award in Butler included compensation for pain and suffering. As we stated in Butler, and reaffirm here:

The award as actually received by appellant is a single fund which appellant may expend in his discretion. The whole tort award is subject to all appellant’s debts. It would, indeed, call into question the sanity of the law if this court were to rule that the tort award is available to pay debts to “the butcher, the baker and the candlestick maker” but not debts to appellant’s child for support.

Id., 339 Pa.Superior Ct. at 317, 488 A.2d at 1143.

Thus, it is clear that the lump sum award received by appellee should have been considered by the court when determining the proper amount of child support following the September 17, 1985 hearing, which was the first determination of the parties’ ability to pay support following appellee’s receipt of the award.' It was at this hearing that appellee lied about receiving the award and requested a decrease.

In upholding the reduction of appellee’s support from $175.00 to $140.00 per month, the permanent hearing officer stated, in pertinent part:

It is the feeling of this hearing officer that [the lump sum award] should not change the base order, but should effect [sic] payment on the arrearages.
2. The Defendant presented testimony outlining exactly where the $26,500 had been spent. It was used to
renovate a home which he had purchased____
I would therefore recommend taht [sic] the existing order be modified to the extent that the Defendant pay an additional $60.00 per month to be applied to the arrearag-es.

Findings of fact, 4/17/86, at 1-2.

The trial court accepted the hearing officer’s findings and stated:

The Permanent Hearing Officer obviously felt that an increase in the support amount was not warranted. The Permanent Hearing Office [sic] did provide for a monthly payment on the accumulated arrears.
Normally an asset, regardless of its source, assuming a legal source, is considered when establishing a support order. There is no question that it should be considered. From a review of the findings and recommendation of the Permanent Hearing Officer, he did consider it and concluded it did not justify an increase in the base support amount. Unless there is an apparent abuse of discretion on an outright oversight, the Court will not disturb a finding of the Permanent Hearing Officer.

Trial court opinion at 2.

Contrary to the conclusion of the trial court, our review of the findings and recommendation of the hearing officer does not reveal that he considered appellee’s receipt of the lump sum award. Rather, the hearing officer acknowledged that the award had indeed been received by appellee, but then apparently concluded that since it was already spent, it was not available as a source. As we stated in Commonwealth ex rel. Loring v. Coring, 339 Pa.Super. 92, 96, 488 A.2d 324, 326 (1985), “[W]hile the trial court did ‘consider’ appellant’s expenses in that it listed them, it did not actually use them in arriving at an amount of support. So, in effect, by ignoring them, the court did not really ‘consider’ them, as is mandated by our case law.”

Similarly, in the present case, although the hearing officer noted that the award had been received, he did not use it in determining appellee’s ability to pay. If such an award is “primarily compensation for lost earnings and earning power,” Butler v. Butler, supra, 339 Pa.Super. at 316 n. 1, 488 A.2d at 1141 n. 1, the addition of $26,000.00 to one’s income would certainly affect his ability to pay support.

We will not sanction the deliberate actions of appellee as demonstrated by the record. It does not matter that he depleted the substantial award. Parents have an obligation to share with their children the benefit of their financial achievement. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Further, “a parent may not voluntarily decrease his or her ability to provide child support by making unreasonable or unnecessarily large expenditures for his or her own benefit.” Id., 505 Pa. at 470, 480 A.2d at 996.

It is clear that appellee lied about his receipt of the $26,000.00 award. Only after the money was spent did he admit having received it. His attempt to justify his actions by emphasizing that he spent the money on a new house for his new wife has no bearing on this issue. He received a $26,000.00 award, and he lied to the court in an effort to shield it from affecting his ability to pay child support. Appellee’s primary legal obligation is to his children and “he may not diminish his ability to provide for them in order to ensure a more comfortable [existence] for himself.” Id., 505 Pa. at 477, 480 A.2d at 998.

The order of the trial court is reversed and vacated; the case is remanded for a determination of appellee’s ability to pay support in light of the addition of the lump sum workers’ compensation award to his income. Jurisdiction is relinquished.

      . We have no record of this conference. At a subsequent hearing on this matter, the above facts were established. Notes of Testimony (N.T.), 1/7/86, at 3-6.


author: PER CURIAM: DEL SOLE, Judge,

text:
    521 A.2d 958
    The FIDELITY BANK, Appellee, v. Mary G. DUDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed March 6, 1987.

      Alison M. Benders, Philadelphia, for appellant (at 2878) and appellee (at 3321).
    Paul Logan, Norristown, for appellant (at 3321) and ap-pellee (at 2878).
    Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM, WIEAND, McEWEN, DEL SOLE, TAMILIA, KELLY and JOHNSON, JJ.
   PER CURIAM:

This appeal is from an order summarily dismissing a counterclaim which had been filed without leave of court more than ten months after the pleadings had been closed. A panel of this Court assigned to hear argument certified the appeal to a court en banc so that further consideration might be given to the appealability of an order summarily dismissing a counterclaim. After careful consideration, we have determined that an order summarily dismissing a counterclaim is final and immediately appealable. Having made an independent review of the order appealed from, however, we find no abuse of discretion and affirm the order of the trial court.

The Supreme Court of Pennsylvania has repeatedly and consistently held that an order summarily dismissing a counterclaim is an appealable order. See: Commonwealth v. Orsatti, Inc., 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972); Broido v. Kinneman, 375 Pa. 568, 569-570, 101 A.2d 647, 648 (1954). This Court has followed the precedent established by the Supreme Court and has also held such orders appealable. See: Duquesne Light Co. v. United States Industrial Fabricators, Inc., 334 Pa.Super. 444, 446 n. 1, 483 A.2d 534, 535 n. 1 (1984); Zivitz v. Centennial Road Properties, Inc., 328 Pa.Super. 79, 81 n. 1, 476 A.2d 462, 463 n. 1 (1984). Nevertheless, it has been suggested that an appeal from an order summarily dismissing a counterclaim should be quashed on the basis of the “collateral order” test for appealability which was announced by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949) and later adopted by the Supreme Court of Pennsylvania in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). See also: Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). This argument, we conclude, misapprehends the Cohen “collateral order” test of appealability.

An order summarily dismissing a counterclaim puts a party out of court on his or her counterclaim. Such an order, the Supreme Court has held, is final and appealable. The Cohen test has nothing to do with determining “finality.” If an order adjudicates an action finally, it is appeal-able. Conversely, if the order does not determine the action finally, it is interlocutory and generally nonappealable. See: Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 43-44, 489 A.2d 828, 830 (1985); Sanderbeck v. Sanderbeck, 327 Pa.Super. 461, 463-464, 476 A.2d 44, 45 (1984).

Cohen created an exception to the rule allowing appeals solely from final orders. See: Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545. It has application only to orders which are interlocutory. Cohen holds that an interlocutory order is appealable “if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Cohen v. Beneficial Consumer Discount Co., supra 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed.2d at 1536 (emphasis added).

The Cohen rule, by its express terms, can have application solely to orders which are interlocutory. Interlocutory orders are appealable where they are “separable from and collateral to the main cause of action” and where an important right will be lost if an immediate appeal is not allowed. See: Praisner v. Stocker, 313 Pa.Super. 332, 342, 459 A.2d 1255, 1260-1261 (1983). Thus, in the Cohen case, the Supreme Court of the United States applied the test to an order denying a request that security be posted for an opponent’s counsel fees and expenses before the case proceeded. And in Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986), this Court applied the “collateral order” test to an order requiring that divorce proceedings before a master be open to the public. And finally, in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), the Pennsylvania Supreme Court applied the “collateral order” test to determine the appealability of an order awarding interim counsel fees and expenses in a divorce action. In all of these cases the orders from which appeals had been taken were interlocutory “collateral orders” which were separable from the main cause of action. To such orders the Cohen test properly had application.

The suggestion made in Elderkin, Martin, Kelly, Massina & Zamboldi v. Sedney, 354 Pa.Super. 253, 256, 511 A.2d 858, 859 (1986) that because of Fried, “the appropriate test to be applied in determining finality is the three prong Cohen test,” is disapproved. According to longstanding precedent, an order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 189, 479 A.2d 500, 503 (1984). See: Pugar v. Greco, supra; Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Safety Tire Corp. v. Hoffman Tire Co., 458 Pa. 102, 329 A.2d 834 (1974); Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1946); Appeal of Washington Union Trust Co., 350 Pa. 363, 39 A.2d 137 (1944); In re Keasbey’s Trust, 342 Pa. 439, 20 A.2d 281 (1941). Cohen, to repeat, has nothing to do with determining finality; it has application only to orders which admittedly are interlocutory but which are collateral to and separable from the main action.

The Fried holding that the Cohen test was applicable to determine the appealability of interim orders pertaining to the payment of counsel fees and expenses did not overrule expressly or by necessary implication those prior decisions of the Supreme Court which had permitted appeals from orders summarily dismissing counterclaims. An order dismissing a counterclaim is not only final, but by its very nature has application to the main action in a way that is direct and not collateral. A counterclaim is a part of the main action, and an order dismissing a counterclaim is sufficiently final to permit an immediate appeal. See: Commonwealth v. Orsatti, Inc., supra; Broido v. Kinne- man, supra. The appeal by Duden from the order summarily dismissing her counterclaim, therefore, is properly before this Court for review.

The facts of the case are relatively uncomplicated. On July 5, 1977, a judgment in the amount of $59,780 was confessed against Mary and Frederick Duden pursuant to a guaranty note held by Fidelity Bank. In April, 1979, Mary Duden entered into a contract with the bank whereby Duden agreed to make periodic payments to the bank on account of the judgment which had been confessed against her and her husband if the bank would refrain from executing upon the judgment. Payments allegedly totalling $8,000 were made by Duden in accordance with that agreement. In May, 1980, however, Duden refused to make further payments.

On March 26, 1982, the bank commenced a civil action against Duden by filing a complaint in which it alleged a breach of the agreement entered in April, 1979. Duden filed preliminary objections to the complaint, which were dismissed on December 29, 1982. She was given by the court a period of twenty days within which to file an answer. An answer containing new matter was filed on January 13, 1983; and a reply to new matter was filed by the bank on January 25, 1983. More than ten months later, on December 8, 1983, Duden filed a separate pleading entitled “Counterclaim” in which she sought to recover the eight thousand ($8,000) dollars which she had previously paid to the bank. On September 17, 1984, the trial court sustained preliminary objections filed by the bank and ordered that Duden’s counterclaim be stricken. In doing so, the trial court reasoned that the counterclaim was procedurally improper. Not only had it been filed untimely, but it constituted an amendment to the answer and had been filed without “the consent of the adverse party or by leave of court” as required by Pa.R.C.P. 1033.

Duden argues on appeal that the trial court abused its discretion by sustaining the bank’s preliminary objections and striking her counterclaim. She asserts that the procedural deficiencies which prompted the dismissal of her counterclaim should have been excused by the trial court pursuant to Pa.R.C.P. 126. This rule suggests a liberal construction of the Rules of Civil Procedure and permits a court to overlook errors or defects in procedure which do not affect the substantive rights of the parties. Appellant’s argument was properly and cogently rejected by the trial court in its opinion of December 27, 1984, and we perceive no need for further comment. For the reasons stated by the trial court, the order granting the bank’s preliminary objections and striking Duden’s counterclaim was proper. It did not constitute an abuse of discretion. Therefore, we affirm.

Affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent because I believe this Court is without jurisdiction to address the merits of the appeals presently before us, and accordingly, the appeals should be quashed.

Presented before this Court are consolidated appeals from two Orders entered by the trial court. The appeal at No. 2878 is from an order entered September 19, 1984, which struck Appellant’s “counterclaim”. The appeal at No. 3321 is from an order entered December 4, 1984, as amended April 10, 1985, which dismissed Appellant’s petition to amend her answer nunc pro tunc.

On March 25, 1982, Fidelity Bank (hereafter, Bank) filed a complaint in assumpsit and trespass based on an oral agreement in which the Bank promised to forbear from commencing execution proceedings on a judgment against Appellant for the value of a guarantee note purportedly executed by her and from foreclosing on certain real estate owned by Appellant if Appellant made certain payments to the Bank on the guarantee note. Appellant filed preliminary objections to the complaint which were overruled by the court on December 29, 1982. She was granted twenty days in which to file an answer. Appellant filed an answer on January 13, 1983. Eleven months later, on December 7, 1983, Appellant filed a separate document entitled “Counterclaim” in which she sought to recover $8,000.00 she had paid to the Bank pursuant to the oral agreement. The Bank’s preliminary objection to the “Counterclaim” in the nature of a motion to strike was granted by an order entered on September 19, 1984. Appellant timely filed the appeal at No. 2878 from this order on October 15, 1984.

On October 5, 1984, following the court’s striking of Appellant’s counterclaim, but preceding the filing of the appeal, Appellant filed a petition for leave to amend her answer nunc pro tunc. On December 4, 1984, the court entered an order which was amended on April 10, 1985, dismissing the petition and stating that the court lacked jurisdiction to consider the petition because of the appeal from the order striking the counterclaim. On January 3, 1985. Appellant filed an appeal at No. 3321 from this order dismissing the petition.

Appellant contends that the trial court should not have stricken the counterclaim even though she complied with neither Pa.R.C.P. 1031 or 1033 because Rule 126 requires liberal construction of the rules. Appellee asserts that neither order from which Appellant has appealed was reduced to judgment, and therefore, both appeals should be quashed. Additionally, the Bank contends that the order of December 4, 1984, as amended April 10, 1985, dismissing Appellant’s petition to amend her answer is interlocutory and should be quashed.

Before this Court can address the merits of this appeal, I believe our jurisdiction to decide the claims raised herein must be established. In order to avoid piecemeal litigation no appeal will be permitted from an interlocutory order, unless specifically provided for by statute. See: Pa.R. App.P. 311, Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968). Otherwise, an appeal must be taken from a final order. 42 Pa.C.S.A. 702(a); Pa.R.App.P. 702(a); Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983).

The Courts of this Commonwealth have in the past considered the issue and have held that an order sustaining preliminary objections and dismissing a counterclaim is appealable since it puts the defendant out of court as far as the counterclaim is concerned, even though the validity of plaintiff’s claim is still unknown. Commonwealth v. Orsat-ti, Inc. 448 Pa. 72, 292 A.2d 313 (1972); Duquesne Light Co. v. U.S. Industrial Fabricators, Inc., 334 Pa.Super. 444, 483 A.2d 534 (1984); Zivitz v. Centenail Road Properties, Inc., 328 Pa.Super. 79, 476 A.2d 462 (1984); Kaskie v. Kaskie, 295 Pa.Super. 523, 442 A.2d 261 (1982). However, the courts previously viewed this and similar issues without the benefit of the Supreme Court’s recent guidance outlined in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Therein, the court held an order relating to alimony pendente lite, counsel fees and expenses was interlocutory and not reviewable until final disposition of the case. In reaching this determination the Court found that the test announced by the United States Supreme Court in Cohen Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) should be utilized to decide whether orders entered during the course of underlying litigation, which are not the type from which an appeal may be taken as of right, Pa.R.A.P. Rule 311, 42 Pa.C.S.A. or by permission, Pa.R.A.P., Rule 312, 42 Pa.C.S.A. are “final” and therefore appealable. The Cohen approach was adopted as part of the law in Pennsylvania in 1975. Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). The Supreme Court in Fried “affirm(ed) the adoption of Cohen ”, and stated:

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 536.

Fried v. Fried, supra, 509 Pa. at 94, 501 A.2d at 214, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

In view of the Supreme Court’s action in Fried, I believe the appropriate test to be applied in determining finality is the three prong Cohen test. While the first two prongs of this test will be met in many instances, to qualify as an appealable order, each of the three factors must be met. Fried v. Fried, supra. Accordingly, when analyzing an order to determine finality the last prong of the Cohen test is critical. A party seeking to determine if an immediate appeal should be taken from a particular order must ask whether an appeal from that order is permitted by statute or rule, and if not whether determination of the issue will be irreparably lost when review is postponed until final judgment in the case.

Applying these factors to the instant order, it may be argued that the propriety of the trial court’s dismissal of Appellant’s counterclaim is separable from and collateral to the main cause of action. The recovery Appellant sought in her counterclaim may also be viewed as too important to be denied review. Nevertheless, this claimed right in my view would not be irreparably lost if review were postponed until final judgment in the case. At that time all preserved issues could be raised at once and heard by the appellate courts. Thus, review is not denied, it is merely postponed until a more appropriate time. Sutliff v. Sutliff 326 Pa.Super. 496, 506-507, 474 A.2d 599, 604 (1984) (Beck, J. dissenting).

While some may contend an unnecessary retrial will result when the initial order is in error and the parties are required to postpone an appeal until final judgment, this argument begs the question. The possibility that the litigation will be amicably resolved or the parties will be satisfied with the result, will be greatly increased if the parties remain in the trial court until final judgment. If either of these two events occur, there will be no appeal.

If our goal to do justice is to be achieved, we must keep in mind that justice delayed is justice denied. As stated by the Supreme Court in Fried: “Our decision today reflects that policy of law which abhors ‘piecemeal’ determinations and the consequent protraction of litigation”. Fried v. Fried, supra, 509 Pa. at 97, 501 A.2d at 215.

In recent years, the Supreme Court of Pennsylvania has adopted changes in the Appellate Rules to foster the goal of eliminating “piecemeal” determinations. In 1983, Pennsylvania Rule of Appellate Procedure 1701(b) was amended to include subsection (6) which grants the trial court the authority to proceed with matters at the trial level when an appeal has been filed from a nonappealable order. Also, in 1985, Appellate Rule 311(a)(1) was amended to provide where a party seeks to open, vacate and/or strike off a judgment, “no appeal may be filed until the court has disposed of each claim for relief.” Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. These rule changes were designed to prevent “piecemeal” determinations of issues, and to prevent the filing of an appeal notice in a nonappealable case from frustrating the orderly progression of the case to its final conclusion.

While some may view the conclusion I would reach today as potentially unjust given a different or “unusual circumstance”, I hasten to point out that the Appellate Rules provide a means for taking appeals by permission. See: Pa.R.A.P., Rule 311, 42 Pa.C.S.A. This procedure, when accompanied by a certification from the trial court of controlling question of law, or of a refusal for such a certification acts as a safety valve. It allows the Appellate Courts of the Commonwealth to address intermediate questions in cases pending in the trial court upon showing that the matter deserves to be addressed.

To the extent we can possibly reduce delay prior to final judgment at the trial level, we should foster that goal. This goal would best be fostered by not permitting appeals until the litigation at the trial level has concluded between parties. Intermediate appeals do nothing but delay the ultimate resolution of the litigation, clog the Appellate Courts, remove the matter from the hands of the trial courts, and cause our citizens to be frustrated with the pace of the judicial system.

In light of the foregoing, I maintain the Supreme Court’s decision in Fried v. Fried, supra, and the strong policy considerations recognized therein support the conclusion that the instant appeal is interlocutory and unappealable.

I would also find the order dismissing Appellant’s petition to amend her answer nunc pro tunc to be interlocutory. Because an appeal was taken from the order striking the counterclaim, the trial court was without jurisdiction to entertain the petition to amend and to rule on its merits. Pa.R.A.P., Rule 1701(a), 42 Pa.C.S.A. The trial court has necessarily postponed a decision on the merits on the petition until it again has jurisdiction over the case. Thus, the order of December 4, 1984, as amended April 10, 1985, does not preclude Appellant from further action in the trial court once jurisdiction is relinquished to it. Therefore, I conclude this order is also interlocutory and must be quashed.

      . On October 5, 1984, Duden filed a petition for leave to amend her answer nunc pro tunc to include a counterclaim. On October 19, 1984, an appeal was filed from the order sustaining the bank’s preliminary objections and dismissing the counterclaim. On December 3, 1984, the trial court denied Duden’s request to file an amended answer. Duden filed a second appeal from this order, which was thereafter consolidated for purposes of argument with the appeal which had been filed from the order sustaining preliminary objections and dismissing Duden’s counterclaim. On April 10, 1985, the trial court issued an amended order as follows: "This Court lacks jurisdiction to consider Defendant’s Petition for Leave to Amend Answer Nunc Pro Tunc by virtue of the appeal taken to the Superior Court on October 19, 1984.” The appeal from the order of December 3, 1984 has not been pursued in appellant’s brief; and, therefore, it will be deemed abandoned. See; Morgan v. Sbarbaro, 307 Pa.Super. 308, 310, 453 A.2d 598, 599 (1982).

      . Counsel are very often placed in a dilemma when they are uncertain whether the order in question is a final and appealable order. Our courts have held that once a final order is entered, it must be appealed or the right of review is lost. Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986). Therefore, in many instances, counsel will choose to appeal a non-appealable interlocutory order to protect themselves and their clients. However, such action will do nothing but further delay the disposition of the litigation. If nothing else, the failure to take an immediate appeal from an interlocutory order should not constitute a waiver of the issue on appeal following a decision on the merits of the case. Similar protection can be found in Rule 311(d), Pa.R.A.P. 42 Pa.C.S.A.
      If one wishes to understand the magnitude of the problem of determining what non-case ending orders are find and appealable read: PINES, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction (Part 1), 91 Dickinson L.R. 55 (1986).

      . See also, Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (where the Supreme Court ruled an appeal from the denial of a motion to dismiss on double jeopardy grounds was interlocutory and should be quashed when the hearing court has considered the motion and made written findings that it is frivolous. The Court speaking through Chief Justice Nix noted, "The needless delays engendered by frivolous appeals hinder the administration of justice as well as the public interest.” Id., 510 Pa. at 346, 508 A.2d at 291).

      . The system’s "safety valve” was recognized by Justice Larsen in his Concurring and Dissenting Opinion in Commonwealth v. Brady, supra.: "A defendant who believes that the trial court erred in dismissing his double jeopardy claim as frivolous may seek interlocutory appeal by permission under 42 Pa.C.S.A. § 702(b) and Chapter 13 of the Rules of Appellate Procedure, and may seek a stay of the retrial, pending determination of the petition for permission to appeal an interlocutory order, from the lower court or an appellate court.... With this mechanism in existence, it is extremely unlikely that a legitimate double jeopardy claim will somehow ‘slip through the cracks’ ...” Id., 510 Pa. at 347, 508 A.2d at 292 (Larsen, J. Concurring and Dissenting).