author: SHERTZ, Judge:

text:
    442 A.2d 292
    Nicholas J. HABER, a Minor by Elena Haber, his Guardian, and Elena Haber, in her own right, Appellant, v. MONROE COUNTY VOCATIONAL-TECHNICAL SCHOOL, Rockwell International Corporation and Warren Balderston Company.
    Superior Court of Pennsylvania.
    Argued June 2, 1981.
    Filed Feb. 26, 1982.

      Barry J. Cohen, Stroudsburg, for appellant.
    Joseph F. Leeson, Bethlehem, for appellees.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.
   SHERTZ, Judge:

This appeal is from an Order granting the motion of Appellee, Warren Balderston Company, to be dropped as a party pursuant to Rule 2232(b), Pa.R.Civ.P. Appellants contend that the lower court improperly granted the motion in that it considered facts which were not of record. We agree with this contention and therefore reverse.

Appellant, Nicholas J. Haber, (hereinafter minor Appellant) was injured while assisting in the operation of a tilting arbor saw owned by Monroe County Vocational Technical School (School). At the time, minor Appellant was a CETA employee working at the School. As a result of this injury, the instant action was commenced against several defendants, including Appellee. The complaint included, inter alia, separate counts in assumpsit and trespass, alleging breach of warranty, negligence and strict liability on the part of Appellee as the seller of the machine which injured minor Appellant.

Without filing any pleading, Appellee moved to be dropped as a party defendant pursuant to Rule 2232(b), Pa.R.Civ.P. which provides:

Joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the court whenever he has been misjoined or no claim for relief is asserted against him in the action by any other party.

The court below, treating Appellee’s motion as a petition, issued a Rule thereon directing Appellants to show cause why Appellee should not be dropped as a party defendant. Appellants filed a sworn answer to Appellee’s petition, denying the allegations therein. Appellee then ordered the case for argument on petition and answer. Following argument, the lower court granted Appellee’s petition. We conclude that, in so doing, the court erred in that Appellee made no showing that it had been misjoined and the record, properly read, clearly reflects that Appellants have asserted a claim for relief against Appellee.

As to the first basis for dropping a party, as specified by Rule 2232(b), i.e. misjoinder, a misjoinder objection rests on the premise that parties have been improperly joined. Bell v. Beneficial Consumer Discount Company, 241 Pa.Super.Ct. 192, 203, 360 A.2d at 681, 687 (1976). Thus, it has been said:

A misjoinder of parties is distinct from a defect of parties and means an excess of parties. An objection that there is a misjoinder of parties is an objection that persons have been made parties of record to the action who are neither proper nor necessary parties thereto. The term “multifarious” is sometimes used in connection with objections to joinder of parties . . .

59 Am.Jur.2d, Parties § 273. We note that Appellee does not contend that it was “misjoined” in the foregoing sense. Consequently, for Appellee to prevail in its efforts to be dropped as a party pursuant to Rule 2232(b), it must establish the alternative ground set forth therein, i.e. that no claim for relief is asserted against it in Appellants’ complaint.

In essence, Appellee invoked the Rule on the ground that it cannot be held liable to Appellants because, on December 7, 1971, when the arbor saw in question was sold to the School, Appellant was not yet in existence. Appellee, in its unverified petition, asserts that “it is not properly joined” because another corporation, W. B. School Sales, which at the time of the sale of the saw bore the name Warren Balderston Company and which subsequently sold a portion of its assets and said corporate name to Appellee, actually sold the saw to the school and was therefore the proper defendant. Appellee attached to its petition an unexemplified copy of a New Jersey Certificate of Incorporation, a copy of an Agreement of Sale of Part of Business, and an unexemplified copy of a New Jersey Certificate of Amendment to the aforementioned Certificate of Incorporation. Appellee’s petition does not assert that it is not named as a party defendant. Rather, the first paragraph of the petition states: “The Warren Balderston Company (the ‘new’ company) ... has been named as a party defendant.” (emphasis added). Moreover, and most significantly, Appellee’s petition is silent as to whether a “claim for relief is asserted against (it) in the action by (Appellants)”.

In granting Appellee’s petition, the court below accepted as true, and relied upon, the facts set forth in the petition and the attachments thereto, despite the denial thereof in Appellant’s' answer to the petition. In so doing the court erred in two significant respects. First, it failed to comply with the requirements of Rule 209(b), Pa.R.Civ.P. See footnote 4, supra. Second, inasmuch as the record does not contain any notes of testimony, nor any other indication that evidence of the foregoing facts was offered, nor any indication, indeed, that any hearing was held, we are compelled to conclude that the court, improperly, took judicial notice of the Agreement of Sale attached to Appellee’s petition.

Judicial notice, in the consideration of a Rule 2232(b) petition, as in the case of a demurrer, should be severely limited. In deciding questions arising under the pertinent provision of the Rule in question, the limited function of the court is to consider whether a cause of action is alleged against the moving party. See 59 Am.Jur.2d, Parties, § 278. In light of this limited function, a court “should refrain from noticing any fact which is not literally indisputable and which the parties could not reasonably raise in further pleadings or on argument at trial.” Clouser v. Shamokin Packing Company, 240 Pa. Super.Ct. 268, 275, 361 A.2d 836, 841 (1976).

Applying the foregoing principles in the instant case, we shall assume arguendo that, despite the strictures of Rule 209(b), the court below could, permissibly, take judicial notice of the Certificate of Incorporation and the Amendment thereto. However, these documents, in pertinent part, merely establish the incorporation, in New Jersey, on December 15, 1971, of E. & W. Sales Corporation with its initial office at 2659 Nottingham Way, Trenton, New Jersey, which corporation, on December 22, 1971, amended its Certificate of Incorporation to reflect a change in the corporate name to “Warren Balderston Co.” These documents do not establish, nor do they even suggest, the following “findings,” apparently made by the court, as reflected in its Opinion, See footnote 5, supra: (a) that there ever existed another Warren Balderston Company; (b) that it was “the ‘Old Company’ ”; (c) that the old company sold the machine in question; (d) that on December 22, 1971, the old company sold its non-school business and the use of its corporate name to the E. & W. Sales Corporation; (e) that E. & W. “acquired” the name Warren Balderston Company; (f) that the old company changed its name to W. B. School Sales Company; and (g) that Appellee is the “new” Warren Balderston Company. The court could discern these “findings” only from the third of the documents attached to Appellee’s petition, the Agreement of Sale.

Under the principles limiting judicial notice, as discussed above, as well as under established principles of law relating to judicial notice generally, the court below was precluded from taking judicial notice of the agreement of sale in question. “Judicial notice is intended, inter alia, to avoid the necessity of formally introducing evidence in those limited circumstances where the fact sought to be proved is so well known in the jurisdiction that evidence in support thereof is unnecessary.” Petro v. Kennedy Township Board of Commissioners, 49 Pa.Commw.Ct. 305, 311, 411 A.2d 849, 852 (1980). Moreover, disputed questions of fact are not within the domain of judicial notice. Chaplin v. Pelton, 282 Pa.Super.Ct. 487, 490, 423 A.2d 8, 9 (1980). Absent the information set out in the agreement of sale, the lower court had no basis, whatever, for granting Appellee’s petition. See Geary v. English, 2 D. & C.2d 241 (1977).

Putting aside the matters improperly considered below, the pertinent inquiry remains: does Appellants’ complaint assert a claim for relief against Appellee. Reference to the complaint demonstrates that it does. Consequently the court below erred in dropping Appellee as a party.

Order vacated and case remanded for further proceedings consistent with this Opinion. Jurisdiction is not retained.

McEWEN, J., did not participate in the consideration or decision of this case.

Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.

      . Because we agree with this contention, we do not reach the remaining issues raised by Appellant.

      . At the time of the injury giving rise to this action, Appellant, Nicholas J. Haber, was a minor. This action was commenced on his behalf by his mother who also sued in her own right.

      . The lower court properly treated Appellee’s “motion” as a petition and issued a Rule thereon. In any event, “Rule (209, Pa.R.Civ.P.) applies to motions in the nature of a petition ...” Goodrich-Amram 2d, § 209:1.1. Therefore, regardless of Appellee’s nomenclature, Rule 209 is applicable.

      . Rule 209(b), Pa.R.Civ.P., reads, in pertinent part:
      Duty of Petitioner to Proceed After Answer Filed
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); .... (emphasis added)
      Inasmuch as Appellee did, within fifteen days, order the case for argument upon petition and answer, the parenthetical language of the Rule applies.

      . In its opinion, the court stated:
      On December 7, 1971, the original Warren Balderston Company (the “Old Company”) sold a machine to the Monroe County Vocational-Technical School. Allegedly, on August 3, 1978, this machine was the cause of certain damages incurred by the Plaintiffs. On December 22, 1971, the Old Company sold its “non-school business” and the use of its corporate name to the E. & W. Sales Corporation (“E. & W.”). That same day E. & W. amended its certificate of incorporation with the Secretary of State of New Jersey so as to assume the newly acquired name of “Warren Balderston Company” (hereinafter referred to as the “New Company”). For its part, the Old Company changed its name to W. B. School Sales Company and retained its “school business” related interests.
      T.C. Slip Op. at 1-2.

      . We note the similarity between the pertinent segment of Rule 2232(b), Pa.R.Civ.P. and a demurrer raised by preliminary objection. Although this similarity arguably suggests, therefore, that a party seeking relief under Rule 2232(b) Pa.R.Civ.P. is limited, as in a demurrer, to the facts alleged in the complaint, Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa.Super.Ct. 287, 291, 361 A.2d 375, 377 (1976), we need not, and do not, decide the question.

      . Appellee is identified in Appellant’s complaint as a Pennsylvania Corporation with its principal place of business situated at 325 North Willow Street, Trenton, New Jersey.

      . In the “Second Count, In Assumpsit,” Appellants aver, in pertinent part, that: Appellee, at all pertinent times, was engaged in the business of sales and distribution of the arbor saw in question (para. 6); minor Appellant was injured due to the operation of the saw (para. 8); the School defendant purchased the saw through Appellee (para. 15); Appellee expressly and/or impliedly warranted that the saw was merchantable and fit for the particular purpose for which Appellee knew or had reason to know was contemplated by the School defendant and minor Appellant’s employer, CETA (para. 16); the saw was not merchantable nor fit for the particular purpose for which it was to be used (para. 17); minor Appellant’s injuries were caused by Appellee’s breach of warranty (para. 18).
      In the “Fifth Count, In Trespass,” Appellants aver, in pertinent part, that: the saw was expected to and did reach the user or consumer in the condition in which it was sold and delivered by Appellee, in which condition it was defective and unreasonably dangerous (para. 31); in the alternative, a piece of lumber was ejected from the blade of the saw as a direct result of Appellee’s negligence (para. 32); minor Appellant’s injuries were caused by Appellee’s negligence (para. 33).


source: Caselaw Access Project

author: HOFFMAN, Judge: WIEAND, Judge,

license: Public Domain

text:
    442 A.2d 296
    PENJERDEL REFRIGERATION CORPORATION, INC. v. R.A.C.S., INC., James J. Phelan, Daniel T. Ryan, and Edward J. Ziwczyn, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed Feb. 26, 1982.

      Francis J. Moran, Philadelphia, for appellants.
    Michael ,T. McDonnell, Jr., Drexler, Hill, for appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that appellee is not entitled to a preliminary injunction and that venue was improperly laid in Montgomery County. Because appellants have failed to perfect their appeal, we do not reach the merits of these contentions, and, instead, quash the appeal.

On January 11, 1980, appellee filed a complaint in equity and a petition for a preliminary injunction, alleging that the individual appellants, former employees of appellee, had interfered with appellee’s existing construction contracts and had utilized confidential information gained while employed to divert other construction contracts from appellee to appellant corporation. In particular, appellee sought to enjoin appellants’ performance of a particular contract between the appellant corporation and a Philadelphia supermarket. Following a hearing, the lower court granted the preliminary injunction and entered an order dated January 30, 1980, enjoining appellants from completing the work in progress, interfering with any other contracts between appellee and third parties, and using any confidential information to obtain future contracts in competition with appellee. Additionally, appellants were required to account for profits realized on their work to date. On February 12, 1980, appellants filed a petition for reconsideration of the January 30 order. The lower court promptly granted appellants’ petition for reconsideration. On February 28, 1980, appellants filed a notice of appeal to this Court concerning the order of January 30. Later that same day, the lower court issued its amended order granting appellee’s petition for a preliminary injunction. Appellants filed no new appeal from the amended order.

Timeliness of an appeal is a jurisdictional matter which can be raised by the court sud sponte. See, e.g., Commonwealth v. Molyneaux, 277 Pa.Superior Ct. 264, 266, 419 A.2d 763, 764 (1980); Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 104, 419 A.2d 115, 116 (1980); In re Kemmerer, 46 Pa.Commonwealth Ct. 455, 457, 405 A.2d 1108, 1109 (1979). Rule 903(a) of the Rules of Appellate Procedure provides that, in general, “the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken.” An appellate court “may not enlarge the time for filing a notice of appeal.” Pa.R.A.P. 105(b).

The mere filing of a petition for reconsideration .. . does not operate to toll the appeal period. Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 378 A.2d 893 (1977). Under Pa.R.A.P. 1701(b)(3), only the timely granting of reconsideration by the lower court will affect the appeal time.

In re Kemmerer, supra, 46 Pa.Commwlth. at 456-57, 405 A.2d at 1109.

Appellants’ petition for reconsideration of the January 30 order was timely filed. Hook v. Athens Area School Disk, 50 Pa. Commonwealth Ct. 420, 423, 413 A.2d 1151, 1153 (1980), citing Pa.R.Civ.P. 1522 (petition for rehearing must be filed within period allowed for taking of appeals). The order of the lower court granting reconsideration tolled the appeal period. Pa.R.A.P. 1701(b)(3); In re Kemmerer, supra. However, that order also rendered inoperative appellants’ notice of appeal concerning the January 30 order.

A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal . . . theretofore or thereafter filed or docketed with respect to the prior order .... Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal . . . begins to run anew after the entry of the decision on reconsideration whether or not that decision amounts to a reaffirmation of the prior determination of the lower court or other governmental unit.

Pa.R.A.P. 1701(b)(3). See also Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 201, 378 A.2d 893, 896 (1977). Because appellants’ notice of appeal was rendered inoperative by the timely order granting reconsideration and appellants filed no new notice of appeal from the amended order issued by the court below upon reconsideration, the appeal was not timely filed and we are without jurisdiction to entertain it.

Appeal quashed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. The majority’s quashing of the instant appeal is unnecessarily harsh and unwarranted. I would reach the merits of the appeal and, because the preliminary injunction entered by the court below was unsupported by any reasonable basis, I would reverse.

On January 11, 1980, the appellee, Penjerdel Refrigeration Corporation, Inc., filed a complaint in equity and a petition for a preliminary injunction against appellants, R.A.C.S. Inc., James J. Phelan, Daniel T. Ryan, and Edward J. Ziwczyn. On January 30, 1980, after three days of hearings, the trial court entered a preliminary injunction which restrained appellants from offering competition to appellee by negotiating or attempting to negotiate with persons who were known to have done business with appellee and, specifically, from completing a steam-fitting construction contract, then 60% complete, at the Blue Grass Road Acme site. The order also directed appellants to account for profits previously realized from the Acme job. On February 12, 1980, appellants petitioned for reconsideration, and the court, without granting or denying the same, set a hearing thereon for February 26, 1980. Following that hearing, the trial court entered an amended order, the substantive effect of which was to delete from the preliminary injunction the direction that appellant account for profits. A notice of appeal was filed on February 28, 1980.

The majority strikes this appeal because the notice of appeal inadvertently recited the order being appealed from as that of January 30, 1980, rather than the order of February 26, 1980. This defect, in my judgment, is an error of form and is technical at best. It does not deprive this court of jurisdiction to review the injunction. No appeal was filed until after the trial court’s amended order had been issued and notice thereof had been formally given. No one was misled about the fact that it was the granting of the preliminary injunction which appellants desired this Court to review. Neither was there any doubt that it was the court’s final expression of temporary relief that was properly subject to such review. Therefore, I find it unduly technical and unnecessarily harsh to quash the appeal merely because it was the original order and not the amended order which was inadvertently recited in the notice of appeal. This is particularly true where, as here, the only substantive change achieved by the amended order was to delete from the preliminary injunction the premature directive to account for profits.

The principal subject of the preliminary hearing was a contract between appellants and Acme for the installation of pipes. Appellants’ bid, the trial court could have found, was made while the individual appellants remained in appellee’s employ and was in competition with a bid submitted by appellee. However, it was not until appellants had terminated their employment with appellee, that their bid was accepted. They then commenced the steam-fitting contract. The job was 60% complete when they were enjoined from doing additional work. Appellee contended during the hearing in the court below that appellants had misappropriated trade secrets, i.e., the figures and estimates used in formulating appellee’s bid for the same job, and had interfered with appellee’s contractual relations.

In reviewing a preliminary injunction, an appellate court will “look only to see if there were any apparently reasonable grounds for the action of the court below . . . . ” Herman v. Dixon, 393 Pa. 33, 36, 141 A.2d 576, 577 (1958), quoting from Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956). “Ordinarily, three prerequisites are essential to justify the issuance of a preliminary injunction. First, the issuance of the preliminary injunction [must be] necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, greater injury would result by refusing the preliminary injunction than by granting it; third, until a final determination can be made, the decree preserves the status quo and the rights of the parties as they existed immediately prior to the allegedly wrongful conduct.” American Federation of State, County & Municipal Employees v. Shapp, et al., 443 Pa. 527, 532-33, 280 A.2d 375, 376-77 (1971) citing Alabama Binder & Chemical Corporation v. Pennsylvania Industrial Chemical Corporation, 410 Pa. 214, 189 A.2d 180 (1963).

In the instant case, none of these prerequisites was present. Even if I assume the correctness of the trial court’s conclusion that appellants had obtained the Acme contract by conduct that was unconscionable, an award of damages would clearly have provided adequate compensation for the loss sustained. Moreover, the failure of appellee to take legal action until almost 60% of the job had been completed suggests that a preliminary order attempting to maintain the status quo was unnecessary, perhaps even unwise. Indeed, the court’s order in the instant case did not preserve but, in fact, destroyed the status quo.

The potential for harm was greater under the restraining order than it would have been if it had been refused. Acme was engaged in a major construction project. It faced serious, perhaps irreparable harm, from delay. Such delay, however, was inherent in an order enjoining appellants from performing their contract during the litigation intended to decide who was entitled to the profits from the work appellants had contracted to do. Not only was there potential for harm to Acme, there was also an increased likelihood of harm to appellants because of the preliminary injunction. Appellants were being directed not to perform a contract which they had entered with a third person who was not a party to the present litigation. If appellants’ conduct had been wrongful, they could properly be required to compensate appellee for the damages caused by that wrongful conduct. However, a court should not grant relief which is more extensive than necessary to compensate the injured party for his loss. It should not fashion a remedy which also requires the wrongdoer to breach a contractual relationship with an innocent third person and thereby subject the wrongdoer to the potential of a separate legal action for damages.

The Acme job was the focal point of the hearing and of appellee’s request for relief. Nonetheless, the relief actually granted by the lower court enjoined much more than completion of that project. While appellee contends that other contracts were jeopardized by appellants’ operations, my review of the record discloses no more than speculation based upon the fear of competition. In short, the record contains no substantive evidence of widespread wrongdoing on the part of appellants such as would support the broad injunction issued by the court below.

Accordingly, I would vacate the preliminary injunction and remand for further proceedings on appellee’s complaint.

      . An appeal may be taken as of right from “[a]n order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” Pa.R.App.P. 311(a)(4).


author: HOFFMAN; Judge:

text:
    442 A.2d 300
    Thomas E. SNYDER a/k/a E. T. Snyder, a/k/a Earl T. Snyder, and Pauline M. Snyder, his wife v. PENN CENTRAL TRANSPORTATION COMPANY and George Pierce Baker, Willard Wirtz, Jervis Langdon, Jr., and Richard C. Bond, Trustees of the property of Penn Central Transportation Company, and John F. Connole, M. D. and Merl F. Kimmel, M. D. Appeal of PENN CENTRAL TRANSPORTATION COMPANY.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Feb. 26, 1982.

      Aloysius F. Mahler, Pittsburgh, for appellant.
    John Daley, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN; Judge:

Appellant contends that appellee’s claim was barred by the applicable statute of limitations and by his signing a release. We disagree and, accordingly, affirm the court below.

On October 3, 1956, appellee, Thomas Snyder, was injured when a metal object struck him in his right eye while he was employed by appellant’s predecessor, Pennsylvania Railroad. A company ophthamologist, Doctor Connole, treated appellee for five weeks, then told him by letter that he was “now regarded as cured without complications.” Appellee returned to work. On January 22, 1957, in consideration of $350, appellee released appellant from liability for the October 3, 1956 incident. Beginning late in 1957, appellee intermittently experienced intense pain and vision problems in his right eye, requiring him occasionally to wear an eye patch. In 1960, appellee consulted a second company ophthamologist, Doctor Kimmel, who diagnosed appellee as having a cataract in his right eye and began treatment. Despite the treatment, by 1962 appellee was blind in his right eye, and appellant placed him on permanent disability status. Appellee continued to receive cataract treatment from Dr. Kimmel until 1971. On January 10, 1974, another company doctor examined appellee and informed him that his cataract had apparently vanished. Appellee then consulted a private ophthamologist who diagnosed appellee as having glaucoma caused by a dislocated lens. On May 6, 1975, during an unsuccessful operation to remove the dislocated lens, his then ophthamologist discovered and removed a foreign object from appellee’s eye. Appellee’s eye was subsequently removed on October 28, 1975, and he was later fitted with an artificial eye.

Appellee commenced this action on September 30, 1976 by filing a complaint against appellant under the Federal Employers’ Liability Act [hereinafter F.E.L.A.], 45 U.S.C.A. § 51 et seq. Appellant answered that appellee’s claim was barred by the applicable statute of limitations and by the release. At trial, appellee introduced testimony relating the dislocation of the lens and the presence of the foreign object to the October 3, 1956 incident. He also introduced testimony that the company doctors had: (1) in 1956, misinterpreted a spot on an X-ray and a rust ring on his eye showing the presence of a foreign object; (2) in 1956 and 1957, misstated his condition by telling him he was “cured without complications;” and (3) in 1960, misdiagnosed his eye condition as cataracts. The lower court submitted to the jury the questions of whether the statute of limitations had been suspended by the doctors’ alleged misrepresentations and whether the release was invalid due to a mutual mistake of fact. The jury returned a general verdict of $67,000 for appellee. The lower court en banc denied appellant’s motion for judgment n. o. v. and entered judgment for appellee. This appeal followed.

Appellant contends that appellee’s action was barred by the statute of limitations. We disagree. In a F.E.L.A. case, federal rather than state law governs questions as to the running or tolling of the statute of limitations. See Burnett v. New York Central Railroad, 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1956) (national uniformity a Congressional purpose). See generally Annot., 16 A.L.R.3d 637 (1967) (F.E.L.A.—Tolling Limitations). Under the F.E. L.A. “[n]o action shall be maintained .. . unless commenced within three years from the day the cause of action accrued.” 45 U.S.C.A. § 56. For a traumatic injury the cause of action accrues on the day the injury is sustained, even though the full extent or seriousness of the injury is not ascertained until a later date. Fletcher v. Union Pacific Railroad, 621 F.2d 902, 906 (8th Cir. 1980), cert. denied 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981). However, the statute of limitations may be equitably tolled when doing so would effectuate Congress’ “humane and remedial” purposes. Burnett v. New York Central Railroad, supra 380 U.S. at 427, 85 S.Ct. at 1054, 13 L.Ed.2d at 945. See Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). An employer “is equitably es-topped from asserting the statute of limitations as. a defense if misrepresentations by either it or its agent caused the employee’s failure to bring his action within the three-year period.” Fletcher v. Union Pacific Railroad, supra at 906, citing Fravel v. Pennsylvania Railroad, 104 F.Supp. 84 (D.Md.1952). Mistaken advice from a company doctor regarding the employee’s medical condition may constitute such a misrepresentation as to toll the statute of limitations. Louisville & Nashville Railroad v. Disspain, 275 F.2d 25 (6th Cir. 1960) (misdiagnosis of back problem); Mumpower v. Southern Railway, 270 F.Supp. 318 (W.D.Va.1967) (same). Even if the misstatements were unintentional, the better view is that the employer is equitably estopped from asserting the statute of limitations because it may not “take advantage of an erroneous statement made by its doctor to prevent its employee from having his day in court.” Louisville & Nashville Railroad v. Disspain, supra at 26. Accord Fletcher v. Union Pacific Railroad, supra; Mumpower v. Southern Railway, supra. See also Holifield v. Cities Service Tanker Corp., 421 F.Supp. 131 (E.D.La.1976), aff’d mem., 552 F.2d 367 (5th Cir. 1977); Tillery v. Southern Railway, 348 F.Supp. 9 (E.D.Tenn.1971). The employee must in fact rely on the misrepresentation. Holifield v. Cities Service Tanker Corp., supra; Felix v. Burlington Northern, Inc., 355 F.Supp. 1107 (D.Minn.1973) (independent medical advice); Tillery v. Southern Railway, supra (independent legal advice). Even if the employer’s misstatements lull the employee into some delay, the employer will not be estopped if the employee later discovers the misrepresentation, but nevertheless allows the cause to remain in repose for a substantial period without justifiable excuse. Fletcher v. Union Pacific Railroad, supra (estoppel removed after correct diagnosis); Holifield v. Cities Service Tanker Corp., supra (statute runs from time of injury to misrepresentation, then continues after employee disabused of it).

Only five weeks passed between appellee’s injury and Dr. Connole’s report that appellee’s eye had “cured without complications.” The jury could reasonably have concluded that the doctor’s emphatic misstatement was still lulling appellee into a justifiable belief that his intermittent eye problems beginning in late 1957 were unrelated to the October, 1956 injury. Doctor Kimmel’s misdiagnosis of cataracts in 1960 further precluded appellee’s commencing this action. Appellee was not disabused of the misdiagnoses until January 10, 1974, and then he acted promptly to commence this action. Because appellee did not delay for any substantial period without justifiable excuse, appellant is estopped from asserting the statute of limitations.

Appellant contends also that appellee’s claim was barred by the release signed on January 22, 1957. We disagree. The validity of a release in a F.E.L.A. action is to be determined by federal law. Dice v. Akron, Canton & Youngstown Railroad, 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed.2d 398 (1952). A release of such a claim may be set aside upon the showing of a mutual mistake of present fact at the time of the release. Taylor v. Chesapeake & Ohio Railway, 518 F.2d 536 (4th Cir. 1975); Fournier v. Canadian Pacific Railroad, 512 F.2d 317 (1st Cir. 1975); Wooten v. Skibs A/S Samuel Bakke, 431 F.2d 821 (4th Cir. 1969). Though a mistake as to a future fact is insufficient to avoid a release, Edwards v. Western & Atlantic Railroad, 552 F.2d 137 (5th Cir. 1977) (expected course of healing); Heston v. Chicago & North Western Railway, 341 F.Supp. 126 (N.D.Ill.1972) (future effect of injury known at time to be permanent, painful, and serious); Robles v. Trinidad Corp., 270 F.Supp. 570 (S.D.N.Y.1966) (future effect of known condition), a mistake as to the present nature of the injury will be grounds for avoiding it. Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir. 1975), rehearing denied, 515 F.2d 510 (legal distinction analogous to medical difference between diagnosis and prognosis). Whether the employee received independent legal or medical advice, and his ability to understand the release, are additional factors in determining its validity. See, e.g., Robertson v. Douglas Steamship Co., supra (uncounseled); Fravel v. Pennsylvania Railroad, supra (employer-sponsored medical advice). Questions concerning the type or existence of mistake may be submitted to the jury. Louisville & Nashville Railroad v. Disspain, supra. The evidence indicates that when appellee signed the release in January, 1957 both he and the company doctor were unaware that he presently had a foreign object retained in his right eye. The company doctor had advised him that he suffered no complications from the October incident. Appellee had no independent legal or medical advice and he is functionally illiterate. Under these circumstances the jury could properly infer the existence of a mutual mistake of present fact invalidating the release. Accordingly, the lower court did not err in entering judgment upon the jury’s verdict.

Affirmed.

      . But see Felix v. Burlington Northern, Inc., 355 F.Supp. 1107 (D.Minn. 1973) (alternate holding) (court would not prejudice employer for allegedly concealing injury which disinterested doctor could not discover later); Gamboa v. Atchison, Topeka & Santa Fe Railway, 20 Cal.App.3d 61, 97 Cal.Rptr. 471 (1971) (some element of fault essential to estoppel); Reat v. Illinois Central Railway, 47 Ill.App.2d 267, 197 N.E.2d 860 (1964) (mere negligence in diagnosis does not toll statute of limitations).

      . Appellee’s action is timely regardless of whether the statute of limitations began to run again on January 10, 1974, when the cataracts diagnosis was discredited, or on May 10, 1975, when he received a positive alternate diagnosis, or at some intermediate time.


author: VAN der VOORT, Judge:

text:
    442 A.2d 304
    BIRCHWOOD LAKES COMMUNITY ASSOCIATION, INC., Appellant, v. Betty COMIS, Henry Lichte and Rose Lichte, His Wife, John Deshewski and Concetta Deshewski, His Wife, Mae Genberg, a/k/a Mary Genberg, Stanley Matejek and Bernice Matejek, His Wife, Louis Mendy and Viola T. Mendy, His Wife, Walter McCague and Margaret P. McCague, His Wife, Lawrence McMahon and Helen McMahon, His Wife, Leonard C. Rademaker and Barbara Rademaker, His Wife, Alan R. Tulp, Anneliese Zassoda, Jack Sweetman and Edith H. Sweetman, His Wife, Gabriel Passarelli and Marie Passarelli, His Wife, Michael McCaul and Catherine McCaul, His Wife, Eva A. Frodge, Dennis Winters and Margaret Winters, His Wife, Leonard M. Trubia, Herbert Anstett and Elizabeth Anstett, His Wife, John Farley and Winifred Farley, His Wife, Robert Barlett, Bernard Guddahl and Rose Guddahl, His Wife, Philip Lamendola and Rose Lamendola, His Wife, John Leechan and Katherine Leechan, Thomas Harney and Mary Harney, His Wife, Margaret Jonas, Emil Sartori and Dolores Sartori, His Wife, Thomas Stefanelli, Charles Talmage, George Wiltshire and Elsie M. Wiltshire, His Wife, Joseph J. Lorentz, Jr. and Catherine V. Lorentz, Robert Newsbaum and Frieda Newsbaum, His Wife, Stanley J. Kasprzak and Stella Kasprzak, His Wife, Jad Barghout and E. Lynn Barghout, His Wife, Thomas Angelo and Mabel Angelo, His Wife, and Antonio Manzo.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Feb. 26, 1982.

      Randolph T. Borden, Hawley, for appellant.
    Marshall E. Anders, Stroudsburg, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

All-American Realty Company was the developer of Birch-wood Lakes, a residential recreational community. Birch-wood Lakes Community Association, Inc. (hereafter referred to as the Association) is a non-profit corporation which is the successor in interest to the developer. The Association performs the services essential to the maintenance of the community. To pay for such services the Association assesses and collects “community dues” as its predecessor had done. For the fiscal years of 1975 and 1976 the Association assessed the dues to be $85.00 a year per lot, based on the anticipated expenses of operating the community.

The appellees are thirty-six (36) of an approximate 2,500 property owners within the community. Appellees refused to pay dues in excess of those listed in their deeds, which prompted the current litigation. The lower court found the deeds to be controlling and construed them against the Association. The court sitting en banc, denied Association’s exceptions and judgment for appellees was entered. This appeal followed.

The issue presently before this court is whether the covenants contained in appellees’ deeds restrict the amount of dues that the Association may assess. Two different provisions were placed in the various deeds, of which both are substantially similar. Accordingly, we will only reprint the first of the two in its entirety.

Each 25' lot and in case of Lake Front Lots, each 20' lot, included in the agreement shall be subject to an annual lien or charge of $10.00 and the Grantee, his, her or their heirs, successors, executors, administrators and assigns agree to pay to the Grantor its successors and assigns the sum of Ten ($10.00) Dollars to each of such lots, annually on the first day of May hereafter, for beach privileges, whether the same are exercised or not. The title to all land designated as beach is expressly retained by the Grantor. The Grantee, his, her or their heirs, successors, executors, administrators, and assigns further agree that the use of said beaches is subject to approval for the use for membership in Birchwood Lakes Country Club, Inc., hereinafter provided, and in the case of a guest or member of the family, provided they shall first be approved for honorary membership in Birchwood Lakes Country Club, Inc., and to compliance with the rules and regulations from time to time promulgated by the Grantor, its successors and assigns, it being understood that the charge for beach privileges in addition to constituting a lien against each lot included in this agreement, shall constitute a debt which may be collected by suit in any court of competent jurisdiction, and upon the conveyance of any land described herein, successive owner or owners shall, from time of acquiring title, be held to have covenanted and agreed to pay the Grantor, its successors or assigns, all charges, past or future, as provided for in this paragraph. In no event, however, shall the annual lien and charge for Beach Privileges be less than $30.00 per annum.

The second provision is distinguished by its inclusion of the following clauses.

In no event, however, shall the annual lien and charge for Beach Privileges be less than $45.00 per annum or such additional sum as may be determined by the Grantor, its successors and assigns. The failure to pay the annual lien on due date shall give to the Grantor, its successors and assigns, the option of preventing the access and use of the aforementioned facilities of the said Country Club and the same shall be enforceable by mandatory injunction.

Before actually addressing the merits of the opposing contentions we must first resolve a preliminary matter. Appellees attempt to frame the provisions in question as restrictive covenants in the hope that a standard of review more favorable to their position will be applied. Appellants also refer to the clause as restrictive covenants. A restrictive covenant may be defined as:

A covenant restricting or regulating the use of real property or the kind, character, and location of buildings or other structures that may be erected thereon, usually created by a condition, covenant, reservation, or exception in a deed, but susceptible of creation by contract not involving transfer of title to land and by implication. 20 Am J2d Cov §§ 165 et seq.

Ballentine’s Law Dictionary, 3rd Ed. We fail to see how the above provisions restrict or regulate the use of appellee’s property. A review of the cases that appellees rely upon demonstrates the difference between the current covenants and restrictive covenants. Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73, 239 A.2d 800 (1968) involved an easement for light and air. Parker v. Hough, 420 Pa. 7, 215 A.2d 667 (1966) concerned a height restriction. In Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65 (1961), there was a limitation to single family houses. While in Siciliano v. Misler, 399 Pa. 406, 160 A.2d 422 (1960) the covenant prohibited the operation of a supermarket. And in Jones v. Park Lane for Convalescents, Inc., 384 Pa. 268, 120 A.2d 535 (1956) the property was restricted to residential uses. In such situations, the restrictive covenants not being favored in law, will be strictly construed against the grantor.

The present case is more akin to Leh et al. v. Burke, 231 Pa.Superior Ct. 98, 331 A.2d 755 (1974). That case involved deeds which provided for the apportionment of costs if and when an adjoining road was paved. There the court did not apply the harsh standard applicable to restrictive covenants. In contrast, for non-restrictive covenants:

[T]he rule is that if an agreement is not clearly expressed, an effort is made by the court interpreting the language to give effect to the intention of the parties as expressed at the time. “Where the language of a deed or a restriction is not clear, then in order to ascertain the intention of the parties its language should be interpreted in the light of the subject matter, the apparent object or purpose of the parties, and the conditions existing when it was made.” Parker v. Hough, 420 Pa. 7, 12-13, 215 A.2d 667, 670 (1966).

Id., 231 Pa.Superior Ct. at 104, 331 A.2d 755.

Appellees’ confusion stems in part from their misconception over what a covenant running with the land is. “The test for determining whether a covenant runs with the land is whether it was so intended by its creators.” Philadelphia Fresh Food v. Levin & Co., 239 Pa.Superior Ct. 287, 295, 361 A.2d 886, 890 (1976). The covenants here at issue were clearly intended to bind the successors in interest of all grantees and therefore were intended to follow the title or in other words run with the land. As previously demonstrated, not all covenants running with the land are necessarily restrictive covenants.

Appellees do not challenge the Association’s authority to collect the assessments, nor its authority to expend such sums collected for the maintenance of the development. See generally, Indian Mountain Lake Civic Association v. Coyle, 283 Pa.Superior Ct. 545, 424 A.2d 943 (1981). Nor is their complaint technically, with an uncertain assessment, as the case was in Leh v. Burke, supra, or Holiday Pocono Association v. Benick, 7 Pa.D & C 3d 378 (1978). Rather, their situation, as they frame it is more analogous to Wilkins v. Lake Meade Prop. Own. Assn., 60 Pa.D & C 2d 670 (1972). Wilkins involved an attempt by an owners association to change the assessment plan contained in the memberships’ deeds. The court found such was impermissible.

However, from our vantage point, we do not believe the present controversy is similar to Wilkins. Instead the issue in controversy is not whether an assessment plan can be changed, but rather how the assessment covenants are to be interpreted. For rules of construction we must refer back to the principle enunciated in Leh, supra, and “give effect to the intention of the parties.” To give effect to the first covenant in question we must reconcile two apparently inconsistent and confusing clauses. First, lot owners must pay an annual lien and charge of ten ($10.00) dollars for beach privileges. Then subsequently the covenant indicates the annual lien and assessment for Beach Privileges shall be no less than thirty ($30.00) dollars.

We cannot tell from such covenant what the intent of the grantor was. The provision could be interpreted in different ways, i.e., setting a minimum, setting a maximum or setting a minimum and a maximum (as the lower court held). After reviewing the deeds in their entirety we are still unable to determine the parties intent. “If a person grants a portion of his property to another and the grant is susceptible of more than one interpretation, the words of the grant are to be construed most strongly against the grantor and more favorably to the grantee (cites deleted) unless . . . the grantee drafted the grant . . . . ” New Charter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830 (1963). Therefore, the Association, relying upon the first of the two covenants, may not collect in excess of thirty ($30.00) dollars.

However, the additional provision in the second covenant presents a different situation. The inclusion of the clause “or such additional sum as may be determined by the Grantor, its successors and assigns”, demonstrates that the express intent of the parties was that the grantor or its successors could assess beyond forty-five ($45.00) dollars per annum. Therefore, those appellees having the second provision in their deed are bound by the covenant to pay such assessment.

The portion of the judgment pertaining to the second covenant must be vacated with directions to enter judgment in favor of the Association.

The remainder of this Opinion is only applicable to a decision on the first covenant. Appellant, alternatively argues that the assessments may be justified under theories of quasi contract or implied contract. We must first distinguish the various contractual theories. A quasi contract, also referred to as a contract implied in law imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement when one party receives an unjust enrichment at the expense of another. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Thomas v. R. J. Reynolds Tobacco Co., 350 Pa. 262, 38 A.2d 61 (1944); Central Storage & Transfer Co. v. Kaplan, 37 Pa.Commonwealth Ct. 105, 389 A.2d 711 (1978). A contract implied in fact is an actual contract arising when there is an agreement, but the parties intentions are inferred from their conduct in light of the circumstances. Elias v. Elias, 428 Pa. 159, 237 A.2d 215 (1968); Colish v. Goldstein, 196 Pa. Superior Ct. 188, 173 A.2d 749 (1961).

If a plaintiff fails to prove a cause of action on an express contract, he may not then attempt to prove his case in quasi contract, unless his complaint originally, or as amended sets forth a cause of action in quasi contract. Zawada v. Pa. System Board of Adj., 392 Pa. 207, 140 A.2d 335 (1958); Luzerne Township v. Fayette County, 330 Pa. 247, 199 A.2d 327 (1938); Witten v. Stout, 284 Pa. 410, 131 A. 360 (1925). In the current case, the complaint averred two causes of action, the first count, in contract, was based on the covenant in the deeds; and the second count, sounding in unjust enrichment, pleaded a quasi contract. Therefore, appellant could properly proceed on a theory of quasi contract. However, appellant’s complaint does not set forth a cause of action in contract implied in fact. We find that the rationale in Zawada and the other cases listed above apply equally well to contracts implied in fact. If a plaintiff fails to succeed in his claim based on an express contract he may not then attempt to demonstrate a contract implied in fact unless such has been averred in the complaint. Appellant did not allege contract implied in fact. Therefore, we may not decide whether such an approach has any merit.

Appellees contend that as appellant has relied on the express covenant contained in the deeds it may not also argue quasi contract. Unjust enrichment is not applicable where the relationship among the parties is based on an express agreement. Third Nat. B. & T. v. Lehigh Val. Coal Co., 353 Pa. 185, 44 A.2d 571 (1945), Roman Mosaic & Tile Co. v. Vollrath, 226 Pa.Superior Ct. 215, 313 A.2d 305 (1973). Appellant responds that the covenants clearly pertain only to an annual charge for “beach privileges” and do not cover the maintenance of roads and other Association owned facilities. The lower court after noting that private communities were dependent on such assessments, went on to hold that “recreational amenities” did not qualify as an essential service. (Opinion p. 12) The trial court improperly overlooked the fact that the covenants clearly provided for payment for beach privileges, though the actual amount is uncertain. The only question that remained before the court was if such fees for beach privileges are insufficient to maintain the roads and other facilities may the association assess beyond the amounts listed in the covenants under a theory of quasi contract.

Our research has failed to uncover any cases where a homeowners’ association has attempted to base its assessment on a theory of quasi contract. It is this court’s belief however that the present situation is not appropriate for the remedy of quasi contract. An “appellant must show that [appellees] wrongfully secured or passively received a benefit that it would be unconscionable for [appellees] to retain.” Scott v. Purcell, 264 Pa.Superior Ct. 354, 367, 399 A.2d 1088, 1095 (1979), quoting Roman Mosaic & Tile Co. v. Vollrath, supra. There is no claim that appellees wrongfully secured the maintenance of the community. Nor do we believe that such property owners passively received such services. Instead, the services were performed and accepted in the belief that the covenants were controlling; the property owners did not passively accept such knowing that they were mistakenly provided.

In concluding, we are aware of the potential hardships which this decision may have on Birchwood Lakes. However, such a result was avoidable. Without deciding that a cause of action in contract implied in fact may exist, appellant here failed to allege such a contract in its complaint. And finally, we note that the two different covenants employed need not be enforced in the same manner as a grantor may impose different restrictions and obligations upon different grants. See Neff et al. v. Gorman et al., 303 Pa. 186, 154 A. 293 (1931).

As to those defendant property owners whose deeds contain the covenant to pay the association “such additional sum as may be determined by the Grantor, its successors and assigns” judgments are entered in favor of the association in the amount of its claims and as to those defendant property owners whose deeds do not contain the covenant to pay “such additional sum as may be determined by the Grantor, its successors and assigns” judgments are entered in favor of the association in the basic amount of $30.00 per lot per annum as provided in said deeds. The case is remanded to the court below to determine the amount of the respective judgments in accordance with this Opinion.

      . The second provision, drafted later in time, set the annual lien at $15.00.

      . Appellees do complain of expending the assessment for maintaining and improving the recreational facilities, which they contend they do not utilize.

      . Appellees do not question appellant’s right to collect $30.00.

      . Association does not seriously argue that such fees collected under the covenant may only be expended for maintenance of the beach. Instead the parties appear to agree that the use of such sums for general maintenance is permissible; accordingly, we need not discuss such issue.


author: PER CURIAM:

text:
    442 A.2d 310
    FRED LOWENSCHUSS ASSOCIATES, Appellants, v. Peter Anthony De PALLO, Arlene Frances De Pallo, Mildred Ann De Pallo, Diane De Pallo, and Carol Joy De Pallo.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed Feb. 26, 1982.

      William D. Parry, Philadelphia, for appellants.
    Bernard V. DiGiacomo, Norristown, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

The appeal in this case arises from a lower court order granting the Defendant-Appellees’ Motion for Judgment on the Pleadings. The lower court’s action was based upon its interpretation of Montgomery County Rule of Civil Procedure 302(d), which requires that a responding party file its brief “within thirty (30) days of the filing and service of the moving party’s brief”. There is no dispute that the Appellants’ brief was filed one day later than thirty (30) days after the filing of the Appellees’ brief in support of their Motion, but within thirty (30) days of the service of the Appellees’ brief.

We must reverse the lower court’s order. An identical issue was presented in the recent case of Shapiro v. Albright, 287 Pa.Superior Ct. 414, 430 A.2d 672 (1981), wherein this Court rejected a similar action by the lower court in Montgomery County. Our holding in that case is directly on point to the issue involved in the instant case, and clearly requires that we reverse the order which granted judgment on the pleadings in favor of the Appellees.

Reversed and remanded for further proceedings in the lower court. This Court does not retain jurisdiction.


author: SPAETH, Judge:

text:
    442 A.2d 311
    Thomas P. BRUNO, Appellant, v. Linda DeMurray BRUNO.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed March 5, 1982.
    David F. Pollock, Waynesburg, for appellant.
    Steven R. Wolf, Canonsburg, for appellee.

      Before SPAETH, HESTER and JOHNSON, JJ.
   SPAETH, Judge:

This appeal is from an order granting an application that a pending action in divorce proceed under the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101. et seq. Such an order is an unappealable interlocutory order. We therefore quash.

On March 6, 1980, appellant filed a complaint in divorce under the then-in-effect Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed). The Divorce Code became effective on July 1, 1980, and on July 8, 1980, appellee filed an application that the action proceed under the Code. After briefs and argument, the lower court granted the application. This appeal followed.

Neither party has raised the question of whether the lower court’s order is an appealable order. However, because it goes to our jurisdiction it is a question that we must always consider, sua sponte if necessary. Evans v. Government Employees Ins. Co., 291 Pa.Superior Ct. 342, 435 A.2d 1258 (1981).

In Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981), this court, sitting en banc, considered the nature of an order granting an application that a pending action in divorce proceed under the Divorce Code of 1980 instead of the Divorce Law of 1929. We held that such an order is not a final order because under the Divorce Code neither party is prevented from presenting any claims or defenses that could have been presented under the Divorce Law. Id. The order is thus to be contrasted with an order denying an application for transfer, which is a final order because its effect is to preclude presentation of claims, particularly those for alimony and equitable distribution, which can be made only under the Code. Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683 (1981). See also, Conrad v. Conrad, 293 Pa.Superior Ct. 558, 439 A.2d 717 (1981).

The appeal is quashed.


author: WIEAND, Judge:

text:
    442 A.2d 311
    COMMONWEALTH of Pennsylvania, v. William CORISH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1981.
    Filed March 5, 1982.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

William Corish was tried non-jury and convicted of theft by receiving stolen property and carrying a firearm without a license. Post trial motions were denied, and Corish was sentenced to concurrent terms of imprisonment for not less than one nor more than three years. On appeal, he contends (1) that the court below committed error by refusing to grant a pre-trial suppression of the firearm; (2) that the trial evidence was insufficient to sustain the verdicts; and (3) that trial counsel was constitutionally ineffective.

There is no merit in appellant’s first two contentions. On December 1, 1979, a parole board warrant was outstanding for appellant’s arrest. On that day he was observed driving a vehicle in the City of Harrisburg, Dauphin County. The vehicle was stopped by Patrolman John Goshert, of the Harrisburg Police Department, and Corish was placed under arrest. Goshert asked Corish what he wanted done with the vehicle he had been driving. Receiving no directions, Goshert called for a tow truck to remove the vehicle which had been stopped so as to impede the flow of traffic. Goshert then opened the right front door of the vehicle for the purpose of making an inventory of its contents and immediately observed a gun holster protruding from under the front seat. When he picked it up he found contained therein a .22 caliber pistol. Appellant had no license to carry the same.

The pistol had been stolen two days earlier from the home of Martin Nye. When Nye had returned home on November 29,1979, he observed a silver Pontiac Sunbird in front of his residence. As he approached, he observed a man, identified at trial as appellant, run from his home, enter the Pontiac Sunbird, and drive away.

The test for determining the sufficiency of the evidence is whether, accepting as true all the evidence and the reasonable inferences therefrom, upon which the fact finder could have based the verdict, it is sufficient to prove beyond a reasonable doubt that appellant was guilty of the crime or crimes with which he has been charged. Commonwealth v. Smith, 484 Pa. 71, 73-74, 398 A.2d 948, 949 (1979); Commonwealth v. Boyd, 463 Pa. 343, 347, 344 A.2d 864, 866 (1975); Commonwealth v. Thompson, 292 Pa.Superior Ct. 108, 116, 436 A.2d 1028, 1032 (1981); Commonwealth v. Jones, 291 Pa.Superior Ct. 65, 74, 435 A.2d 223, 225 (1981). In making this evaluation, all evidence received by the fact finder must be considered, whether the trial court’s rulings thereon were correct or incorrect. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979); Commonwealth v. Boyd, supra 463 Pa. at 347, 344 A.2d at 866; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Bentley, 276 Pa.Superior Ct. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Siegel, 223 Pa.Superior Ct. 398, 401, 302 A.2d 461, 463 (1973).

In the instant case, the evidence was clearly sufficient to establish beyond a reasonable doubt that appellant was guilty of theft by receiving stolen property and carrying a firearm without a license.

The pistol, moreover, was properly received in evidence and considered by the trial court. Appellant had been taken into custody and it was necessary that his vehicle be moved so it would not impede the flow of traffic. At the same time it had to be preserved and protected because of property rights which existed therein. Under these circumstances it was entirely reasonable for the arresting officer to enter the vehicle, whether to move it or to inventory the contents prior to arrival of the tow truck. See: South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Commonwealth v. Scott, 469 Pa. 258, 267, 365 A.2d 140, 144 (1976); Commonwealth v. Lyons, 257 Pa.Superior Ct. 142, 390 A.2d 752 (1978); Commonwealth v. Randle, 248 Pa.Superior Ct. 239, 375 A.2d 76 (1977) ; Commonwealth v. Brandt, 244 Pa.Superior Ct. 154, 366 A.2d 1238 (1976). Having entered the vehicle, the officer was not required to ignore evidence of a weapon lying in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Mitchell, 489 Pa. 537, 540-541, 414 A.2d 1021, 1023 (1980); Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978) ; Commonwealth v. Burton, 292 Pa.Superior Ct. 73, 78, 436 A.2d 1010, 1012-1013 (1981); Commonwealth v. Bentley, supra 276 Pa.Super. at 48, 419 A.2d at 88; Commonwealth v. Kazior, 269 Pa.Superior Ct. 518, 526, 410 A.2d 822, 826 (1979) . Instead, he could properly examine it and, finding it to be contraband, seize it as evidence of criminal activity. Harris v. United States, supra; Commonwealth v. Tome, 484 Pa. 261, 271, 398 A.2d 1369, 1375 (1979); Commonwealth v. Harris, supra 479 Pa. at 138, 387 A.2d at 873; Commonwealth v. Lassiter, 457 Pa. 582, 588, 321 A.2d 902, 905 (1974); Commonwealth v. Seip, 285 Pa.Superior Ct. 551, 555, 428 A.2d 183, 185 (1981); Commonwealth v. Pytak, 278 Pa.Superior Ct. 476, 487, 420 A.2d 640, 646 (1980); Commonwealth v. Lehman, 265 Pa. Superior Ct. 480, 484, 402 A.2d 539, 541 (1979). The pre-trial hearing court properly refused to suppress the evidence, and it was properly received as a Commonwealth exhibit during appellant’s trial.

Appellant was represented at the preliminary hearing by the Dauphin County Public Defender’s Office. He then retained private counsel who represented appellant throughout the proceedings in the trial court. After an appeal had been.filed, the Dauphin County Public Defender’s Office resumed representation of appellant. In his brief, appellate counsel alleges for the first time, as he is required to do if he wishes to preserve it, the issue of trial counsel’s stewardship. Specifically, it is contended that counsel was ineffective for failing to examine the transcript of the preliminary hearing and also for failing to cross-examine the witness, Martin Nye, about alleged prior inconsistent statements made at such preliminary hearing. These statements, it is alleged, would have shaken Nye’s identification of appellant as the man observed running from Nye’s home. It is also contended that counsel was ineffective for failing to file, on appellant’s behalf, a motion to modify his sentence. These averments, although of arguable merit, are before this Court as bare assertions. They are unsupported by any evidence and have not been heard by the trial court. Moreover, if they are factually correct, we are unable to ascertain whether trial counsel had a reasonable basis for not pursuing the suggestions now made by appellate counsel.

We are, therefore, compelled to vacate the judgment of sentence and remand for an evidentiary hearing. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v. Twiggs, 460 Pa. 105, 106, 111, 331 A.2d 440, 443 (1975); Commonwealth v. Watts, 294 Pa.Superior Ct. 319, 439 A.2d 1220 (1982). If the trial court finds that counsel was ineffective, then it should grant appropriate relief. If appellant is unable to sustain his contention that counsel was ineffective, then the judgment of sentence should be reimposed.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 6106.


author: BECK, Judge: WICKERSHAM, Judge,

text:
    442 A.2d 314
    COMMONWEALTH of Pennsylvania v. Raymond WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1981.
    Filed March 5, 1982.

      Paul R. Gettleman, Zelienople, for appellant.
    Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND, and BECK, JJ.
   BECK, Judge:

Appellant was arrested and charged on January 30, 1978 with robbery, theft by unlawful taking, violation of The Uniform Firearms Act and criminal conspiracy. After a jury trial, appellant was found guilty on all counts and sentenced to from ten to twenty years incarceration. Post-verdict motions were subsequently denied. This is a direct appeal from the judgment of sentence.

We reverse and remand for a new trial based upon a question by the trial judge about appellant’s post-arrest silence. That question was asked immediately after appellant had presented his alibi and had been cross-examined by the prosecutor who judiciously avoided referring to appellant’s silence. The trial judge cast doubt upon appellant’s alibi by questioning him about the aforementioned silence, thereby attenuating his Fifth Amendment right to remain silent:

Trial Judge:

The only other question I have is, the police testimony seemed to leave me to conclude that they asked you to make a statement, you made no statement to them at all. You didn’t tell them anything at all about the man you were with, with Mr. Fuller up in New Kensington?

Appellant: No, I didn’t. (N.T. 157.)

Appellee relies upon Commonwealth v. Zellner, 268 Pa.Super. 59, 407 A.2d 436 (1979) which cites the language of Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976) for the proposition that if the trial judge in his charge adequately cures his earlier indiscretion, the trial judge has not committed reversible error. Those cases are distinguishable from the instant case, however, in that they involve prosecutorial error, rather than judicial. In both cases, a police officer, in answer to the prosecutor’s question, referred to defendant’s silence after being read his Miranda rights.

While we find a prosecutor’s question less prejudicial than a judge’s, our appellate courts as well as the United States Supreme Court have reversed even where the prosecutor made that inquiry. See Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held such prosecutorial inquiry to constitute a denial of due process:

(W)hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, [422 U.S. 171] at 182-183, 95 S.Ct. 2133 [at 2139] 45 L.Ed.2d 99, put it very well:
“(W)hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony ... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.”

426 U.S. at 618-619, 96 S.Ct. at 2245 (footnotes deleted). The Supreme Court did note an exception to the above rule in Doyle v. Ohio, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11, but that exception is inapposite to the instant case. It embodies the situation where the defendant testifies to an exculpatory version of the events and contends that he told the police officers that same version when arrested. In that very narrow case, the fact of earlier silence may be used to impeach this account of what transpired upon arrest.

An accused’s Fifth Amendment right to remain silent after arrest is unequivocal. Any mention of the fact that a defendant availed himself of that protection must be scrupulously avoided. The judge’s question and its timing could reasonably have led the jurors to conclude that defendant fabricated the alibi after arrest, and that his silence constituted an admission of guilt. We therefore conclude that the question was prejudicial and did not constitute harmless error.

While it is apparent that the trial judge did attempt to cure his indiscretion, the prejudicial effect of the question and its timing outweighed the curative impact of the instruction. See Commonwealth v. Seel, 267 Pa.Super. 490, 406 A.2d 1148 (1980).

We reverse the judgment of sentence and order a new trial.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

On October 5, 1978, a jury returned a verdict of guilty against the appellant, Raymond Williams, on charges of robbery, theft by unlawful taking or disposition, firearms not to be carried without a license and criminal conspiracy. Appellant was sentenced to pay a fine and costs and to serve a prison term of ten to twenty years on the charge of robbery. Sentence was suspended as to the other charges on payment of costs of prosecution. The trial had been held before the Honorable James R. McGregor, with Bruce Carsia representing the appellant, Williams.

One of the witnesses for the Commonwealth was Mary Shrader, who testified that she was a clerk at the Stop N Go in Springdale, Allegheny County and was working on January 30, 1978. Her testimony included the following:

Q Did anything unusual happen that day that you would like to tell us about?
A Yes, a robbery occurred that evening.
Q And would you tell us in your own words what happened?
A At five minutes to 6:00, two blacks entered the store and proceeded to rob the place.
Q ... How did it take place initially, would you tell us what happened?
A Well, I was placing pop up in one corner of the store and the door opened, and I went to greet the customers, which were two blacks at which point the taller of the two placed a gun in my righthand side and accompanied me around the counter to the register, demanded money from the register.
Q When he placed the gun at your side, was there another man with him?
A Yes, ma’am.
Q What exactly did he say to you when he put the gun at your side?
A He said, “Give me the money.”

N.T. at 10-11.

Patrolman John Pavshak of Harmar Township was also working on the same evening and testified:

A I received an alert from Tarentum Base, the dispatcher for our area, our police department, the alert came over of a silver vehicle containing two black males, both armed, committed a robbery in Springdale Borough and they were headed south on Route 28.
Q Was there a license plate mentioned?
A Yes, there was. The silver vehicle was to bear Pennsylvania Registration 9C7-651.
Q Did you see this vehicle?
A Yes, I did.
Q How soon after this broadcast did you see the vehicle?
A At 6:10 p. m.
Q Where did you first sight it?
A On Route 28 heading south near the intersection of Route 28 and Jefferson Avenue.
Q Could you give us a distance between the intersection of Route 28 and Jefferson Road and the Stop N Go?
A Approximately two miles.
Q What action did you take at that point?
A This vehicle passed me, I verified the registration number as being the same which was given to me in the alert, and I pulled directly behind the vehicle, gave an audible signal with the siren for the vehicle to stop. My vehicle was a marked police vehicle with red emergency lights, which were also on.
Q Could you see at that point how many people were in the car?
A Yes, there were two black males.

N.T. at 74-75.

A I followed the vehicle proceeding south on Route 28,1 followed the vehicle in the wrong lane at high speeds. We came down near the intersection of Route 28 and the Pennsylvania Turnpike Ramp, the entrance ramp of the Turnpike. At this point, Route 28 becomes a four lane highway, where earlier it was a three lane highway. This became a four lane highway and I proceeded to chase the vehicle. Approximately one-eighth of a mile past the entrance to the ramp, there is a bridge which is an exit ramp that is over top of Route 28. At this point, the one Actor in the vehicle, the passenger, stuck his arm out the window. We were in the curb lane, in the right lane, he stuck his arm out of the window and he was displaying a revolver. He held the revolver several seconds and discarded the revolver along the highway into the snow. I watched where the revolver fell. I immediately called Springdale Borough Police Officer Victor Di Santi to secure the area for the recovery of the weapon.
Q During that chase up to this point where you saw the revolver being thrown, could you estimate how fast you were going during the chase?
A Between the speeds of approximately sixty and eighty miles per hour.
Q Did the car keep going after you saw the gun being thrown?
A Yes, it proceeded south to the intersection of Route 28 and New Route 910. At this point, the vehicle made a right turn, it went approximately one-quarter of a mile until we came to the intersection of New Route 910 and Gulf Laboratory Road. At this point, the vehicle made another right turn, went a distance of approximately one hundred feet and made a left turn onto to Old Route 910. Old Route 910 is a very narrow road and it is a dead end road. The vehicle proceeded on Old Route 910 until it came into physical contact with a dump truck which was blocking the roadway. This dump truck was completely blocking the road, there was nowhere to go. The suspected vehicle struck the dump truck broadside....
Q Were the men in the car at the time you approached the car?
A No, they were not.
A As I pulled the keys out of the vehicle, I looked, I could see the footsteps from the vehicle. At this point, Officer Allen Park from Cheswick Borough Police Department arrived. I radioed my location all during the chase, and Officer Park arrived. We began to follow the two sets of footprints from the vehicle, heading in towards a wooded area.
Q .... Would you describe to us what the area was like surrounding this car?
A This is an isolated area, it is somewhat wooded, very hilly, dead end road, and there are no occupants or residents in there.

N.T. at 76-78, 79.

Q You apprehended a suspect a thousand yards away?
A Yes.
Q Where exactly was he?
A He was halfway up this steep hillside. It is a wooded area. He was entering the wooded area and he was crouched along the hillside.
Q Do you see that man in court today?
A Yes, I do.
Q Point him out please?
A Raymond Williams, the Defendant.
Q What was his physical condition at that time?
A He appeared to be very exhausted and wet.
Q Did you continue a search for any other evidence that evening?
A ... [W]e. went back the same route in which we came, Old 910, Gulf Lab Road, New 910 and Route 28 North. When we come to the area where the gun was discarded, this area was secured by police officers from another municipality. I had the one Defendant in my car and Officer DiSanti had another Defendant in his car. We stopped at this area where the gun was discarded. I walked over to that area and picked up a revolver. This was a .32 caliber S&W manufactured by H&R Model No. 632, Serial No. AP349... .
Q Was this the area you saw the gun being discarded?
A Yes, the exact same spot.

N.T. at 81, 82.

A The following day, at approximately 5:40 p. m., this would be on the 31st of January. Myself and Officer Park went back into the area. Whenever I say back in the area, I mean the wooded area where the suspect was apprehended. On the middle of this hillside, this cliff area, when we got to the area where he was apprehended, halfway up the hill, within a very short distance of the apprehension site, there were crevices in the hillside. At this point, myself and Officer Park retrieved $53.00 of currency.
Q At this point, was it contained in anything?
A No, it was not.
Q It was loose?
A Yes.
Q You say a short distance away, can you be any more specific and give me an estimate of the distance from where you apprehended Mr. Williams and you found the money?
A Approximately one foot.
Q Was there anything unusual about any of the money you noticed?
A Yes. There were five one-dollar bills which had an ink stamp, blue or black ink stamp of Stop N Go.

N.T. at 84.

The prosecuting officer, Victor DiSanti, who was a policeman for Springdale Borough, testified as to what occurred following the arrest of the two suspects, including appellant Williams.

A ... After the gun was turned over to me by Officer Pavshak, I proceeded towards Tarentum Police Station, which is our lockup where we incarcerate anybody, we use their facilities for investigation.
Q Did you see either or both of the men that were apprehended there?
A Yes, they were there.
Q ' Did you do anything with regard to these two men?
A Yes. At the time that they were taken to the Station, they were given their rights.
Q Now, after they were advised of their rights, did you conduct any further search or anything of that nature?
A Yes. The individuals were asked to remove everything from their pockets. I, again, went to search the vehicle and conducted a pat down search of them and asked them to remove everything from their pockets.
Q Did you find anything in their pockets?
A Yes, I did.
Q With respect to Mr. Williams seated here, what, if anything, did you find?
A Mr. Williams had some shells in his pocket.
Q What do you mean by ‘shells’?
A He had some .32 caliber shells in his right front pant pocket.

N.T. at 106-107.

At the conclusion of the Commonwealth’s case, the defendant, Raymond Williams, appellant here, testified on his own behalf. He denied any involvement in the armed robbery at Stop N Go. He stated that on the day in question he just happened to run into his friend, William Fuller, at the Holiday Inn, New Kensington. He had known Fuller since they were both children. He advised Fuller that he was going home to Verona and asked Fuller for a ride.

Q Now, what happened, did you get in the car?
A Yes, I did.
Q Where was Mr. Fuller supposed to take you?
A Back to Verona, Pennsylvania.
Q Now, what happened?
A Well, on the way back, I’m not familiar with the highway, I think it was Allegheny Boulevard where we turned off on the way back, and the police had pulled up in back of our car, and as they pulled up in back of the car, he put his red light on, and Fuller begin with the high speed, you know, so I asked him, ‘Man, what the hell are you doing,’ you know, and he said, ‘Just hang on,’ you know. So, during the chase, the window was halfway down, I don’t know what type of object was thrown out the window, but he did throw an object out the window, what it was, I don’t know. At the time, I was frightened, you know, because I’m wondering what is happening. So, he went on to this dead end road, like wrecked into a truck, told me to get out. I get out and I ran and I tell him, ‘This is it, man,’ I said, ‘What’s happening’ and he never did say, he kept going, and later on, when they caught him—
Q Is that when the policeman caught you? Did the police come and find you in the woods there?
A That’s right.

N.T. at 137-38.

At the conclusion of cross-examination by the attorney for the Commonwealth, the following occurred:

THE COURT: I just have two questions.
By the Court:
Q You said that you knew that this tan or brown—dark tan Oldsmobile was Fuller’s car; how did you know that was Fuller’s car? Had you ridden in it before?
A Yes, I had rode in it previously, before, and seen him several times.
Q You had seen him in possession of that car?
A Yes.
Q So, on previous occasions, you knew that was Fuller’s car?
A Yes.
Q The only other question I have is, the police testimony seemed to leave me to conclude that they asked you to make a statement, you made no statement to them at all. You didn’t tell them anything, at all about the man you were with with Mr. Fuller up in New Kensington?
A No, I didn’t.

N.T. at 156-57.

There was no further testimony offered in the trial. Following closing arguments of counsel, the court charged the jury and in the course of which said:

You also heard, Ladies and Gentlemen, the testimony of the Police Officer that Mr. Williams at the time he was apprehended was given certain rights. They did not spell out these rights. One of the rights that he was given was the right to remain silent, which is absolutely guaranteed to Mr. Williams and to you and to me and to everybody in this courtroom. We are guaranteed by our Constitution of this right. No inference whatsoever can be given from the fact that Mr. Williams exercised his right to remain silent.

N.T. at 173-74.

Appellant seeks to have his conviction reversed by contending that the trial judge committed error in bringing to the jury’s attention that Raymond Williams had remained silent at the time of his arrest.

In the instant case, the trial court questioned the appellant in front of the jury, not only as to his silence at the time of his arrest, but asked him in front of the jury why he didn’t tell the police his alibi at the time of his arrest. The jury could only reason, based upon the questioning by the court, that appellant’s alibi was created by him after his arrest, thereby destroying his credibility with the jury and his entire defense.

Brief for Appellant at 5.

Under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), it is clear that a state prosecutor may not seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. Use of the defendant’s post-arrest silence in that manner violates due process.

Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357 [2363-64] 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S., at 177, 95 S.Ct. 2133 [at 2137] 45 L.Ed.2d 99. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, at 182-183, 95 S.Ct. 2133 [at 2139-40] 45 L.Ed.2d 99, put it very well:
‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’
We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

Id., at 617-619, 96 S.Ct. at 2244-45, 49 L.Ed.2d at 97-98 (footnotes omitted).

I would hold that the trial judge’s question to the appellant following Commonwealth’s cross-examination was harmless error cured by adequate instructions subsequently given by the trial judge.

In Commonwealth v. Zellner, 268 Pa.Superior Ct. 59, 407 A.2d 436 (1979), this court summarized the numerous decisions of the Pennsylvania appellate courts on the prejudice that may result from reference to an accused’s election to remain silent upon arrest. In Zellner, this court decided to adhere to the doctrine espoused by Justice Eagen, writing for a plurality of the supreme court, in Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976):

‘In order that there will be no confusion henceforth, we now specifically rule that in Pennsylvania adequate instructions under some circumstances may cure error of the nature here complained of. Initially, whether the harm can be removed by curative instructions will be within the sound discretion of the trial judge and his determination will be subject to appellate review. In making this decision, the following will be important considerations but not necessarily exclusive: (1) the nature of the reference, particularly, whether it was a specific comment on the accused’s silence at trial or at the time of arrest or whether it was, as in Commonwealth v. Ross [403 Pa. 358, 169 A.2d 780 (1961)], merely a reference to the fact that incriminating evidence of the Commonwealth was undenied or uncontradicted; and (2) whether the accused’s silence was exploited by the district attorney.’ Id. [469 Pa.] at 349, 365 A.2d at 1241.

Id., 268 Pa.Super. at 63, 407 A.2d at 438.

In the instant case, the trial court’s question did elicit the fact that appellant had remained silent at a time when appellant had the constitutional right to do so. There was, however, no reference to and no exploitation of the accused’s silence by the Commonwealth attorney. Contrary to appellant’s recollection of the facts, supra at 319, there was also no inquiry by the trial court as to why appellant did not tell the police his alibi at the time of arrest. No further testimony was presented following appellant’s response that he did not make any statements to the police. Closing arguments by counsel were heard, and within a short time of the testimony in issue, a clear, precise and explicit instruction explaining the defendant’s right to remain silent was given to the jury by the court. Under these circumstances, I conclude that the instruction checked any prejudice created by the earlier reference to the accused’s silence.

I do not find the case of Commonwealth v. Seel, 267 Pa.Superior Ct. 490, 406 A.2d 1148 (1979) controlling here. In that case the trial judge elicited testimony that appellant had chosen to remain silent at the time of his arrest by questioning the arresting officer as to appellant’s answers to the officer’s interrogation. The trial judge actually commented, “I think the jury is entitled to know this.” Moreover, the per curiam decision did not detail the curative instructions found to be inadequate.

It is a violation of the accused’s constitutional rights against self-incrimination to make reference to his silence while in police custody. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37, 16 L.Ed.2d 694, 720 n. 37 (1966); Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978). Not every such reference, however, requires a new trial. Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978). Prompt and adequate cautionary instructions can cure what might otherwise be reversible error. Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1978).

Commonwealth v. Humphreys, 267 Pa.Superior Ct. 318, 325, 406 A.2d 1060, 1064 (1979).

I dissent.

      . In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held the use for impeachment purposes of an accused’s silence at the time of arrest, after receiving Miranda warnings, violated his right to remain silent. The Court, however, noted in its opinion that ‘the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.’ Id. at 619 n.11, 96 S.Ct. at 2245 n.11, 49 L.Ed.2d at 422 n.11 (citation omitted).


author: JOHNSON, Judge:

text:
    442 A.2d 322
    David G. STOKES v. Dennis E. THIEMANN and Amber Thiemann, his wife, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1981.
    Filed March 5, 1982.

      William R. Balaban, Harrisburg, for appellants.
    Bruce D. Foreman, Harrisburg, for appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   JOHNSON, Judge:

An action was filed in assumpsit and trespass, the plaintiff, appellee in this appeal, alleging that the defendants, appellants before us, owed him certain sums of money for services rendered. A jury trial ended on December 14,1979, with a verdict for the plaintiff. The defendants then tried to settle the dispute by tendering an amount less than the jury verdict. This was refused by the plaintiff. The defendants did not file their post-trial motions until a month after the verdict. Pennsylvania Rule of Civil Procedure 227.1 provides that post-verdict motions must be filed within ten days of the verdict. Appellants argue that they should be allowed to file their motion late where there is no prejudice to the appellee and the reason for the delay is justifiable. They do not supply us, however, with any case law which supports their proposition.

One case on which they rely, McAleer & Co. v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977), concerned Pa.R. Civ.P. 1038(d) which applies to non-jury trials in assumpsit, and which provided that exceptions to rulings may be filed within twenty days. In McAleer our Supreme Court acknowledged that a trial court may in appropriate circumstances grant leave to file exceptions late, but found no legally cognizable reason for the failure to comply with the rule where counsel’s explanation was inadvertence. In the case before us, counsel’s explanation for the delay in filing a Rule 227.1 motion is that he was attempting to settle the amount due the other party to the lawsuit and that he believed he would not prejudice his clients’ right to appeal by thus delaying. This does not reach the level of a legally cognizable excuse for delay in complying with a mandatory, unambiguous rule.

The other cases which appellants cite to us, including those they cite as involving a situation similar or identical to theirs, are default judgment cases. Counsel would analogize his motion to a petition to open a non pros or default judgment. We see no analogy. A non pros judgment is entered against a plaintiff who has failed to file a complaint after being served with a rule to do so. Pa.R.Civ.P. 1037(a). A default judgment is entered against a defendant who has failed to answer a complaint. Pa.R.Civ.P. 1037(b). In neither situation have the parties had their day in court. We are therefore not persuaded that the criteria for granting a petition to open those judgments are adaptable to the consideration of a motion asking the court to permit the untimely filing of post trial motions.

Appellants further argue the applicability of Pa.R.Civ.P. 248 and 126 to their situation. Rule 248 does not apply, as there was no written agreement or order of court. With respect to Rule 126, our courts require good arid sufficient reasons before they permit a waiver of procedural rules. See, e.g., McAleer & Co., Inc. v. Iceland Products, supra, where the court said, after citing the above two rules:

We thus hold that it is within the discretion of the trial court to allow exceptions under Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing.

475 Pa. at 614, 381 A.2d at 443 (emphasis added). See also Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), where our Supreme Court said, in the context of the late filing of a pleading:

We have considered this question previously and our position is clear: ‘... a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party: see Richter v. Mozenter, 356 Pa. 650, 654, 53 A.2d 76.’ Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725, 729 (1960), quoting from Coppage v. Smith, 381 Pa. 400, 404, 113 A.2d 247 (1955). This practice comports with Pa.R.C.P. 126 ....

446 Pa. at 151, 285 A.2d at 112. Thus appellant must show good reasons for the delay and also that he was injured by an abuse of discretion by the trial court. Appellant has failed to do so. The reason for the delay is insufficient to justify a waiver of the rule, as the trial court correctly found. The trial judge based his decision on the applicable case law. He did not abuse his discretion in refusing to waive compliance with a clear, mandatory rule.

The denial by the trial judge of the Motion to Seek Leave to Obtain an Extension of Time to File Post-Trial Motions is affirmed.

This case was decided prior to the expiration of SHERTZ, J.’s commission of office.

      . The record shows that the motion was mailed on January 10, 1980 and actually filed on January 15, 1980.

      . Pa.R.Civ.P. 227.1, 42 Pa.C.S.A. (Pamp.1981) provides:
      All post-trial motions after trial by jury, including a motion for a new trial, judgment non obstante veredicto, judgment upon the whole record after disagreement of a jury, removal of a nonsuit and in arrest of judgment, shall be filed within ten (10) days after nonsuit or verdict of disagreement of the jury.

      . Pa.R.Civ.P. 1038(d) was amended in 1977 to require filing within ten days. See Explanatory Note following Pa.R.Civ.P. 227.1, 42 Pa.C.S.A. (Purdon Pamp. 1981)

      . See Ecumenical Enterprises, Inc. v. Nadco Construction, Inc., 253 Pa.Super.Ct. 386, 385 A.2d 392 (1978), where this court said, in reversing the lower court’s refusal to open a default judgment:
      In reaching this conclusion we are ever mindful of the principle that: “In determining whether a judgment by default should be opened, we must ascertain whether there are present any equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his ‘day in court’ and to have the cause decided upon the merits. In so doing, we act as a court of conscience.” Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971).
      253 Pa.Super.Ct. at 394, 385 A.2d at 396 (emphasis added).

      . Pa.R.Civ.P. 248, 42 Pa.C.S.A., provides:
      The time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of court.
      Pa.R.Civ.P. 126, 42 Pa.C.S.A., provides:
      The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

      . Stokes v. Thiemann, No. 78-1377, slip op. at 3 (C.P. Perry County, June 3, 1980).