author: SPAETH, President Judge:

text:
    482 A.2d 1101
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph M. LAGANA.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Granted April 10, 1985.

      Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from a pretrial order granting appellee’s motion to suppress evidence. The evidence in question is a revolver. Appellee is charged with various firearms offenses, and our independent review of the record discloses that if upheld, the order suppressing the revolver will terminate the prosecution. The order is therefore appealable. See Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983). The issue on appeal is whether the trial court erred in holding that the Commonwealth was collaterally estopped from relitigating the validity of the search incident to which the revolver was seized. We hold that the trial court did not err. We therefore affirm its suppression order.

On May 11, 1981, a police officer stopped appellee on a street corner in Philadelphia. The officer found a revolver in appellee’s pants. He seized the revolver and also two carrying cases that were on the pavement, a few feet from appellee. On the same day appellee was charged with firearms violations. Subsequently, the contents of the carrying cases were examined and found to be the proceeds of a burglary, and on June 9, 1981, appellee was also charged with burglary, theft and criminal trespass.

On July 31, 1981, appellee filed in the burglary prosecution a motion to suppress the carrying cases that had been seized on May 11, and also, the contents of the cases. On August 28 a hearing was held on the motion before the Honorable Nelson A. DIAZ, and on August 31, after argument, Judge DIAZ held that the police officer’s action in stopping appellee, before seizing either the revolver or the carrying cases, constituted an arrest, and that at that time the officer did not have probable cause to arrest. See N.T. August 31, 1981, 13. He therefore ordered the carrying cases and their contents suppressed as the fruit of an illegal arrest. The Commonwealth did not appeal this order; instead, it nolle prossed the charges in the burglary prosecution.

On September 2, 1981, appellee filed in the present case (the firearms prosecution) a motion to suppress the revolver that had also been seized on May 11. On September 8 a hearing was held on the motion before the Honorable Eugene H. CLARKE, Jr. Appellee argued that, given Judge DIAZ’s order of August 31, the Commonwealth was collaterally estopped from relitigating the validity of the May 11 search. Judge CLARKE reserved his ruling and received evidence on the motion. On January 18, 1982, after considering the parties’ briefs on the issue, Judge CLARKE “rul[ed] that the Commonwealth cannot relitigate the Motion to Suppress on the basis of collateral estoppel.” N.T. January 18, 1982, 2. It is this ruling from which the Commonwealth now appeals.

Generally stated, the principle of collateral estoppel is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments § 27 (1982). See also Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (“when an issue of ultimate fact has once been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future lawsuit”).

Here, the parties to both actions — the burglary prosecution and the firearms prosecution — are the same. Cf Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977) (acquittal of one defendant does not collaterally estop prosecution from relitigating same issue in prosecution of another defendant even though same transaction is involved); People v. Gephart, 93 Cal.App.3d 989, 156 Cal.Rptr. 489 (1979) (prosecution in one county not collaterally estopped by suppression of evidence in different county in case involving unrelated charges).

Also, the issue that Judge CLARKE had to decide on the suppression motion in the firearms prosecution was decided by Judge DIAZ on the suppression motion in the burglary prosecution, and the determination of that issue was essential to the suppression order entered in the burglary prosecution. The Commonwealth argues that Judge DIAZ did not determine the admissibility of the revolver when he determined the admissibility of the burglary proceeds found in the carrying cases, but this argument is without merit. The legality of the search of appellee’s pants, in which the revolver was found, turned on the nature of the police officer’s action in stopping appellee, before seizing the revolver and the carrying cases. On the motion in the burglary prosecution Judge DIAZ expressly held that the stopping constituted an arrest, and that the officer did not at that time have probable cause to arrest. This holding determined the validity of the search incident to which the revolver was seized, and under this holding, the revolver, equally with the contents of the carrying cases, was inadmissible as the fruit of an illegal arrest.

The Commonwealth does not argue, either that it did not have a full and fair opportunity to litigate the suppression motion before Judge DIAZ, or that it did not have the right to appeal the order entered on that motion. Moreover, the Commonwealth had every incentive to litigate the motion, and to appeal the order entered on the motion, for the burglary charge was more serious than the firearms charges, and it was foreseeable that the same issue of the validity of the search that had arisen in the burglary prosecution would arise in the firearms prosecution. In this regard it may be noted that Judge DIAZ stated that he thought the motion presented a close question and that the Commonwealth should appeal his order. However, instead of appealing, or petitioning to reopen the suppression hearing, the Commonwealth filed a nolle pros of the burglary charges.

The Commonwealth argues that Judge DIAZ’s suppression order was an evidentiary decision, interlocutory and not final in character, and that its nolle pros of the burglary charges was a voluntary withdrawal of the charges and not a final judgment because a nolle pros may in certain circumstances be removed. These arguments are also without merit. Judge DIAZ’s suppression order was final and appealable, for it substantially handicapped or terminated the burglary prosecution, Commonwealth v. Lapia, supra, and although a nolle pros may in certain circumstances be removed, an order already final is not made any less final by later removal.

We therefore have no hesitancy in concluding that all of the requirements of the principle of collateral estoppel have been met: same parties; issue actually litigated before Judge DIAZ and determined by his valid and final judgment; and determination essential to his judgment. The question remains, however, whether Judge DIAZ’s determination was conclusive on Judge CLARKE.

We may start our examination of this question by considering whether, as appellee argues, the answer to it is dictated by constitutional considerations.

In Ashe v. Swenson, supra, the United States Supreme Court held that the principle of collateral estoppel is embodied in the fifth amendment guarantee against double jeopardy. Here, however, Judge DIAZ’s suppression order was entered pre-trial, which is to say, before jeopardy had attached.

The United States Supreme Court has not yet decided whether the principle of collateral estoppel is embodied in the due process clause of the fourteenth amendment to the United States Constitution. In Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), the Court did not decide that issue because it concluded that on the facts of the case, the principle of collateral estoppel did not apply. The Court’s opinion in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), suggests that on other facts the principle of collateral estoppel may be applicable, even when the fifth amendment guarantee against double jeopardy is not applicable because jeopardy has not yet attached. In Oppenheimer the appellant was indicted for a conspiracy to conceal assets from a trustee in bankruptcy. He defended on the ground that on a former indictment for the same offense it had been decided that prosecution was barred by the statute of limitations in the Bankruptcy Act. That decision had since been held wrong in a different case. The government argued that the doctrine of res judicata was inapplicable because it existed only under the fifth amendment double jeopardy clause, which was inapplicable. Rejecting this argument, the Court stated:

It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightfully mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the Statute of Limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government’s consent before a jury is empaneled; or that it is conclusive if entered upon the general issue ... but if upon a special plea of the statute, permits the defendant to be prosecuted again.
The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice ... in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time. 242 U.S. at 87-88, 37 S.Ct. at 69 (citations omitted).

In addition to this statement by the United States Supreme Court, the Court of Appeals for the Second Circuit has suggested that the principle of collateral estoppel is embodied in the due process clause of the fourteenth amendment. See United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1266 (2d Cir.1975), cert. denied, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976) (“Assuming that the state has had an opportunity for full hearing on suppression and at least one appeal as of right, we think due process would forbid relitigation of the issue determined adversely to it, although not, of course, the prosecution of X for [a different offense] on the basis of other evidence.”) This suggestion, however, was dictum only.

State courts have resolved the issue of whether the principle of collateral estoppel is applicable to pre-trial suppression orders in varying ways. See People v. Williams, 89 Cal.App.3d 1026, 152 Cal.Rptr. 892 (1979) (under California Penal Code, motion to suppress in superior court felony case is not controlled by earlier suppression order in municipal court misdemeanor case); State v. McCord, 402 So.2d 1147 (Fla.1981) (state not collaterally estopped by prior suppression order; principle of collateral estoppel inapplicable since defendant was never placed in jeopardy); People v. Williams, 59 Ill.2d 557, 322 N.E.2d 461 (1975) (state collaterally estopped by prior suppression order that it chose not to appeal); State v. Doucet, 359 So.2d 1239 (La. 1977) (on rehearing) (state not collaterally estopped by prior suppression order; policy against perpetuating erroneous rulings outweighs policy against harassment and inefficiency; court can prevent prosecutorial abuse); Cook v. State, 281 Md. 665, 381 A.2d 671, cert. denied, 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed.2d 136 (1978) (state not collaterally estopped by prior suppression order; suppression order itself is interlocutory and not final judgment and state has no right of appeal from suppression order; declaration of mistrial means issue may be relitigated); Commonwealth v. Scala, 380 Mass. 500, 404 N.E.2d 83 (1980) (Commonwealth not collaterally estopped by prior suppression order; court had no record of suppression hearing and therefore could not determine whether suppression ruling reflected full and careful litigation of issues; Commonwealth had no right of appeal at time order was entered; in any event, it may be that issue should be controlled by policies underlying exclusionary rule and not those underlying principle of collateral estoppel); State v. Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977) (state collaterally estopped by order of suppression in coindictee’s case; both cases involved similar charges, same incident and same evidence); State v. Lay, 56 N.C.App. 796, 290 S.E.2d 405, app. dismissed, petition denied, 306 N.C. 390, 294 S.E.2d 216 (1982) (state not collaterally estopped by suppression order entered in misdemeanor case from asserting validity of search warrant relied on in felony indictments; application of principle would nullify statutory rights granted state in prosecuting felonies); State v. Greenwood, 565 P.2d 701 (Okla.Crim. App.1977) (pre-trial suppression ruling may be overruled at trial and therefore is not final and not binding in second trial on different offense); Commonwealth v. O’Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983) (if trial court on remand finds that prior adjudication was that warrant was defective, appellant can invoke principle of collateral estoppel).

Having, thus examined the state of the law, we have concluded that we need not, and therefore should not, rest our decision on constitutional grounds. Whatever may be the United States Supreme Court’s eventual resolution of the issue of whether the fourteenth amendment embodies the principle of collateral estoppel, and however other states may have resolved the issue of the applicability of the principle under their particular laws, in this case, we have concluded, the principle as a matter of state law barred the Commonwealth from relitigating the validity of the May 11, 1981, search. Cf. Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983) (regardless of how United States Supreme Court may ultimately resolve federal constitutional issue, as matter of state law principle of collateral estoppel precludes finding of probation revocation based on probationer’s participation in a crime where probation revocation hearing was deferred until after trial at which probationer was acquitted of the crime). We have reached this conclusion after a consideration of the policies underlying the principle of collateral estoppel. In our ensuing discussion of these policies, we have been helped by the discussion in United States ex rel. DiGiangiemo v. Regan, supra.

One policy underlying the principle of collateral estoppel is that relitigation should not result in the incarceration of an innocent person. The determination of an issue in favor of the accused in one proceeding casts doubt upon the validity of a contrary determination of the same issue in a later proceeding. This particular concern is not applicable in a case such as this one, where the issue decided, i.e., the validity of the search, does not go to the accused’s guilt or innocence and there has been no verdict of acquittal. There is, however, an analogous concern, and that is that relitigation may result in the incarceration of a person whose rights have been violated, for a suppression order based on a finding that the accused’s rights were violated casts doubt upon the validity of a later determination that the accused’s rights were not violated.

Another policy underlying the principle of collateral estoppel is the protection of the accused’s legitimate reliance on the determination of an issue in his favor, and another, closely related, policy is the promotion of judicial economy. Both of these policies are applicable here, where at the first suppression hearing appellant obtained a determination on the issue of the legality of the search favorable to him, and then at the second suppression hearing pleaded that by virtue of the principle of collateral estoppel, further litigation of that issue was barred.

Still another policy underlying the principle of collateral estoppel is that the prosecution should be precluded from harassing an accused by subjecting him to repeated proceedings. Again, this policy is applicable here. If the Commonwealth had appealed the first suppression order, the order would have been afforded considerable deference on appeal. See Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975) (appellate court determines only “whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings”). Instead, the Commonwealth attempted to force appellant to litigate de novo the validity of the search incident to which the revolver was seized.

The Commonwealth argues that even if on the second suppression motion Judge CLARKE should not have taken evidence, and even if he was right not to make new findings of fact, still he was free to review the record, and, accepting Judge DIAZ’s findings, make contrary conclusions of law. The difficulty with this argument is that whether the stop of appellee was an arrest and whether the officer had probable cause were not pure conclusions of law by Judge DIAZ, which Judge CLARKE could ignore while at the same time accepting Judge DIAZ’s findings of fact. Rather, these issues are mixed questions of fact and law— just as negligence, or reasonable care, is. See, e.g., State v. Gonzalez, supra. Furthermore, and in any event, the principle of collateral estoppel ordinarily extends to pure conclusions of law. “In such a case, it is unfair to the winning party and an unnecessary burden on the courts to allow repeated litigation of the same issue in what is essentially the same controversy, even if the issue is regarded as one of ‘law.’ ” Restatement (Second) of Judgments § 28 Comment b at 275 (1982). See Pulli v. Warren National Bank, 488 Pa. 194, 412 A.2d 464 (1979) (appellant estopped from seeking damages pursuant to oral contract because final decree in former action for specific performance established that contract was within Statute of Frauds and therefore unenforceable).

The only policy underlying the principle of collateral estoppel cited by the Commonwealth in support of its argument that it should have been permitted to relitigate the suppression motion is the policy against perpetuating an erroneous ruling. On the facts of this case, however, that policy can be given very little, if any, weight. As already stated: The Commonwealth had a full and fair opportunity to litigate the issue of the legality of the search at the hearing on the first suppression motion. If the order entered on that motion was error, the error could be corrected on appeal. And since the order was entered in the more serious of the two prosecutions against appellant — the burglary prosecution — the Commonwealth had every incentive to appeal.

In short, we are unable to discern any policy that supports the Commonwealth’s decision not to appeal but instead to file a nolle pros of the burglary prosecution and then attempt to relitigate the issue of the validity of the search at the hearing on the suppression motion in the firearms prosecution. We therefore hold that the principle of collateral estoppel barred relitigation of the validity of the May 11, 1981, search.

Order affirmed.

POPOVICH, J., concurred in the result.

      . Burglary is a felony of the first degree, 18 Pa.C.S. § 3502(c), punishable by up to 20 years imprisonment, 18 Pa.C.S. § 1103(1). Firearms offenses are misdemeanors of the first degree, 18 Pa.C.S. § 6119, punishable by up to 5 years imprisonment, 18 Pa.C.S. § 1104(1).

      . In appropriate circumstances the suppression court may on petition by the Commonwealth reopen the suppression hearing. See, e.g., Commonwealth v. Ryan, 296 Pa.Super. 222, 442 A.2d 739 (1982) (court erred in denying petition to reopen suppression hearing when all parties believed hearing to be in abeyance pending resolution of burden of proof issue); Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981) (suppression court did not abuse its discretion in reopening suppression hearing for receipt of additional testimony three days after entering findings of fact and conclusions of law, following Commonwealth's motion).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    482 A.2d 1106
    Sherry I. ALTSCHULER, Appellant, v. Stanley L. ALTSCHULER.
    Superior Court of Pennsylvania.
    Argued July 18, 1984.
    Filed Oct. 12, 1984.

      Sidney M. DeAngelis, Norristown, for appellant.
    Dorothy K. Phillips, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, J.
   CAVANAUGH, Judge:

In this appeal, appellant-wife challenges an order of the Court of Common Pleas of Montgomery County transferring her support action from Montgomery County to Philadelphia County. The relevant facts are not in dispute, and may be summarized as follows:

Appellant-wife and appellee-husband were married on June 29, 1968, and have two minor children. In September of 1981, the parties separated. At that time, appellee moved to Philadelphia County while appellant continued to reside in the marital residence located in Montgomery County with the two children. On February 24, 1982, appellee filed a complaint in divorce in Philadelphia, and on April 18, 1982, appellant’s attorney entered an appearance and accepted service in Philadelphia. Thereafter, appellant obtained new counsel, and on September 22, 1982, filed her own complaint in divorce in Montgomery County which contained, inter alia, a count seeking support. On July 7, 1982, appellee petitioned the lower court to stay appellant’s Montgomery County divorce action and/or transfer venue to Philadelphia. After a conference in chambers, at which both counsel were present, a rule was entered on appellant to show cause why the requested relief should not be granted and for the meantime a temporary stay of all Montgomery County proceedings was entered.

Thereafter, on October 27, 1982, before a decision had been made on appellee’s petition to stay and/or transfer, appellant filed a new and separate support action in Montgomery County. Appellee filed preliminary objections to the support action and on December 15, 1982, the lower court issued an order specifically including this separately filed support action within the operation of its previously issued, temporary stay order. On February 17, 1983, the matter was again before the lower court on appellee’s petition to hold appellant’s counsel in contempt of court. After a conference in chambers, at which the lower court entertained argument from both counsel, an order was entered which, inter alia, transferred both the divorce and the separate support actions to Philadelphia for consolidation with appellee’s prior, pending divorce action. This appeal is taken from the part of that order which transfers the separate support action.

Appellant contends that the recently promulgated support rules, specifically Pa.R.C.P. 1910.2(3), afford her an unfettered right to have her support claim heard in Montgomery County, notwithstanding the pendency of appellee’s Philadelphia divorce action. We disagree.

Pa.R.C.P. 1910.2 provides:

Rule 1910.2. Venue

An action may be brought in any county in which
(1) the defendant resides, or
(2) the defendant is regularly employed, or
(3) the plaintiff resides.

It is true that subparagraph (3) changed the law concerning venue in support actions. This rule, taken together with Pa.R.C.P. 1910.6(b) (relating to service), permits a support action to be brought in the county of plaintiff’s residence even though the defendant no longer resides there, provided that it is also the county of the last family domicile. See Pa.R.C.P. 1910.2(3) and official comment thereto. This alters prior practice, which required a transfer to the county of defendant’s residence in such cases. See, e.g., Commonwealth ex rel. Powell v. Powell, 238 Pa.Super. 369, 357 A.2d 566 (1976). In support of her position, appellant argues that the official comment to Pa.R.C.P. 1910.2(3) flatly requires Montgomery County, the county of plaintiff-appellant’s residence and last family domicile, to hear the support matter. The comment provides in pertinent part:

Subparagraph (3), in conjunction with Rule 1910.6(b), alters the intercounty statutory provision where the county of the plaintiff’s residence is also the county of the last family domicile and the plaintiff has continued to reside in that county. In such case, the matter will be heard in the county of plaintiffs residence, if the action is brought there, and defendant must return there to defend the action, (emphasis added).

Although we must concede that this comment is broadly drawn, we disagree that the venue provision to which it relates strips the lower court of its discretion to transfer a support matter once it has been brought. On the contrary, Pa.R.C.P. 1910.8, (relating to transfers under the doctrine of forum non conveniens) provides:

Rule 1910.8. Transfer of Case

For the convenience of parties and witnesses the court may transfer an action to the appropriate court of any other county where the action could have been brought originally or at the time of transfer.

We will not construe Pa.R.C.P. 1910.2(3) so as to nullify the transfer provisions of Pa.R.C.P. 1910.8. Both Rules 1910.2(3) and 1910.8 relate to the same subject and are thus in pari materia. Pa.R.C.P. 131. As such, they must be construed so as to give effect to both. Pa.R.C.P. 128(b). Moreover, we will resolve an unavoidable conflict between the text of a rule and its comment so that the text prevails. See 1 Pa.C.S. § 1939 (relating to use of comments and reports, to similar effect).

In this case, it was undisputed that a divorce action between the parties which raised issues of child custody, as well as equitable distribution of marital property, was pending in Philadelphia County, and that appellant’s counsel had entered an appearance and a master had been appointed in that proceeding. Furthermore, we cannot ignore the fact that Montgomery and Philadelphia are adjoining counties easily accessible to each other. We must also take note of the practical and humane considerations running through the current law of domestic relations favoring the consolidation and coordination, rather than fragmentation, of related proceedings concerning the family. See, e.g., The Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 301, 23 P.S. § 301, (allowing consolidation of property, child custody, support, and any other matters pertaining to the marriage, with the divorce action); 1 J. Rounick, Pennsylvania Matrimonial Practice § 13:5 (1982). Since the support issues raised in appellant’s Montgomery County support action are closely related to the child custody and equitable distribution questions raised in conjunction with appellee’s Philadelphia divorce action, the consolidation effected by the lower court’s order is reasonably calculated to promote judicial economy and minimize the delay which would likely result from separate proceedings in different counties. We, therefore, hold that the lower court properly exercised its discretion under Pa.R.C.P. 1910.8. in ordering the transfer of appellant’s Montgomery County support action. See Plum v. Tampax, Inc., 402 Pa. 616, 168 A.2d 315 (1961), cert. denied, 368 U.S. 826, 82 S.Ct. 46, 7 L.Ed.2d 40 (1961); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 455 A.2d 646 (1982); Daugherty v. Inland Tugs Company, 240 Pa.Super. 527, 359 A.2d 465 (1976).

Order affirmed.

      . The order in question also transfers various other related matters to Philadelphia; however, it is only the transfer of the support action which is at issue now.

      . The new support chapter, Pa.R.C.P. 1910.1, et seq. was adopted April 23, 1981, and made effective on July 22, 1981.

      , Appellant also cites Pa.R.C.P. 1910.24 contending that the lower court stayed proceedings without affording her notice and hearing as required by this rule. However, we note that the order from which she appeals does not have the effect of a stay, but rather transfers the proceedings to Philadelphia County. Furthermore, the operative facts were admitted in appellant's Answer to appellee's Preliminary Objections to the Complaint in support.


author: CAVANAUGH, Judge: McEWEN, Judge,

text:
    482 A.2d 1110
    COMMONWEALTH of Pennsylvania v. George ORTIZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 20, 1984.
    Filed Oct. 12, 1984.

      Michael J. Cammarano, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and MONTGOMERY, JJ.

   CAVANAUGH, Judge:

This appeal is from an order denying appellant’s presentence petition to withdraw a guilty plea. We must reverse judgment of sentence and remand for further proceedings.

On December 7, 1980, appellant was arrested on charges of robbery, simple assault, aggravated assault, theft, receiving stolen property and criminal conspiracy. On November 9, 1981, appellant tendered a guilty plea to a single charge of robbery pursuant to a plea agreement which called for a sentence of three and one-half to ten years imprisonment and dismissal of the remaining charges. N.T. 11/9/81 at 11-12. On March 18, 1982, before sentence had been imposed, appellant petitioned to withdraw his guilty plea, claiming he was innocent of the charge to which he had pled guilty and had been “affected by personal difficulties” at the time the ill-considered plea was entered. On June 10, 1982, a hearing was held on appellant’s petition to withdraw at which appellant testified that during the time his plea had been negotiated, tendered and accepted by the court, he had been under the influence of drugs. He further testified that he could not remember signing the plea agreement which admittedly bore his signature, and had only a sketchy recollection of the guilty plea proceeding, which had been transcribed. However, after considering the thoroughness of the guilty plea colloquy conducted on November 9, 1981, the lower court concluded that appellant had not been under the influence of drugs at the time, but rather was mentally competent and had entered his guilty plea knowingly and voluntarily. The lower court went on to conclude that appellant had offered “absolutely no basis” for withdrawal of his guilty plea. Slip op. at 5. After sentencing and denial of subsequent motions, this appeal followed.

Rule 320 of the Pennsylvania Rules of Criminal Procedure provides that “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” The lower court correctly states the law which has developed under this rule as follows: “A defendant does not have an absolute right, even before sentencing, to withdraw a guilty plea once tendered and accepted by the court. He must have a ‘fair and just’ reason. Commonwealth v. Mosley, 283 Pa.Super. 28, 423 A.2d 427 (1980).” Slip op. at 5. On the other hand, once a “fair and just” reason has been made out, withdrawal should be liberally permitted, unless the Commonwealth has been substantially prejudiced. Com monwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977).

Here, appellant has supported his request to withdraw his guilty plea by asserting his innocence. Such an assertion has consistently been held to be a “fair and just” reason for presentence withdrawal of a guilty plea. Commonwealth v. Carelli, 308 Pa.Super. 522, 454 A.2d 1020 (1982); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982); Commonwealth v. Boofer, supra. No evidence of prejudice to the Commonwealth was offered at the hearing on appellant’s petition to withdraw and the lower court made no finding on this point. Under these circumstances, the lower court’s denial of appellant’s petition to withdraw was an abuse of discretion. Commonwealth v. Carelli, supra; Commonwealth v. Whittall, supra; Commonwealth v. Boofer, supra.

Accordingly, judgment of sentence is reversed and the record is remanded with instructions to permit appellant to withdraw his guilty plea. Jurisdiction is relinquished.

McEWEN, J., filed a dissenting opinion.

McEWEN, Judge,

dissenting:

The majority after careful study concludes that the trial court abused its discretion in refusing to allow appellant to withdraw his guilty plea based upon a finding that appellant had “supported his request to withdraw his guilty plea by asserting his innocence.” Majority Opinion at pg. 122. I, however, do not find “fair and just” reason to permit appellant to withdraw his plea and, therefore, would affirm the judgment of sentence.

Appellant entered a counseled plea of guilty to the offense of robbery before the distinguished Judge Forrest G. Schaeffer on November 9, 1981. Following an extensive colloquy, the court questioned appellant as follows: “You admit that on November 26, 1980, you were with a group acting together with the purpose of taking a wallet from Mr. Harbach and that in so doing serious bodily injury was inflicted upon him?” Appellant, under oath, responded, “Yes, sir.” Later that afternoon, the court reconvened the guilty plea proceedings and questioned appellant as follows: “I just wanted to advise you further, Mr. Ortiz, that — or ask you, when you entered a guilty plea this morning to charge of robbery, did anybody threaten you or force you or in any way persuade you to plead guilty other than the plea bargain that was entered? Appellant responded: “No, sir. I pleaded guilty on my own, sir.” Appellant then waited approximately thirty minutes, at the request of the court, for his counsel to arrive, and once again the court inquired into the voluntariness of appellant’s plea:

THE COURT: Mr. Ortiz, your counsel is here, and I just wanted to reiterate. This morning you entered a guilty plea and I gave you a colloquy. I’m not certain that I mentioned this morning or asked you whether or not the guilty plea was brought about by anybody threatening or forcing you or persuading you to plead guilty by any other means than the plea bargain.
THE DEFENDANT: I pleaded guilty on my own.
THE COURT: On your own?
THE DEFENDANT: Yes.
THE COURT: And therefore, the guilty plea you entered you’re saying was of your own free will?
THE DEFENDANT: Yes.
THE COURT: Nobody promised you or threatened you? THE DEFENDANT: No.
MR. CAMMARANO: Thank you, Your Honor.
THE COURT: Thank you.

Counsel for appellant, more than four months later, on March 18, 1982, filed a petition seeking leave for appellant to withdraw his guilty plea. Counsel alleged therein, inter alia, that “[the] Petitioner alleges his innocence and seeks to exercise his right to a trial by jury of his peers.” A hearing on the petition was held on June 10, 1982, and appellant testified that he could not recall signing the plea agreement or any of the details of the hearing at which he tendered his guilty plea as he was under the influence of drugs at the time. At no time during the hearing did appellant suggest to the court that he was innocent of the offense to which he had entered the plea of guilty. Rather, appellant sought to establish at the hearing that his plea of guilty was involuntary due to his use of drugs during the relevant period. The trial court, which had observed and questioned appellant during the morning and afternoon of December 9, 1981, found appellant’s subsequent testimony, to the effect that due to drug intoxication he was unaware of his acts on December 9, 1981, to be incredible. The record fully supports this conclusion. Moreover, while the petition filed by counsel contained a bare averment of innocence, appellant apparently abandoned that ground for withdrawal of his plea, as he never suggested to the court, either at the hearing or in his subsequent pro se petition seeking withdrawal of his plea, that he was, in fact, innocent.

I can discern no abuse of discretion on the part of the learned trial court judge who concluded that appellant had failed to establish a “fair and just” reason for withdrawal of his guilty plea. I would, therefore, affirm the judgment of sentence.

      . 18 Pa.C.S. § 3701(a)(l)(i).

      . The opinion of the lower court indicates that appellant "did not deny that he had committed the robbery to which he had pleaded guilty." Slip op. at 5. However, appellant’s petition clearly states at paragraph five that “the Petitioner alleges his innocence____” Appellant's petition to withdraw was verified by the sworn affidavit of his attorney in accord with Pa.R.Crim.P. 9030. At the hearing on appellant's petition to withdraw there was no evidence offered to show that he did not assert his innocence. Under these circumstances, we hold that appellant has sufficiently asserted his innocence.

      . Appellant specifically waived any rights he might have under Pa.R.Crim.P. 1100, Petition to Withdraw Guilty Plea ¶ 6(c); and other charges were only to be dismissed later, when sentence was imposed. N.T. 11/9/81 at 11.

      . Appellant, while under oath, provided the following assurances to the court at the time of his guilty plea:
      THE COURT: [d]o you agree to the plea bargain as it has been spelled out?
      THE DEFENDANT: Yes.
      THE COURT: Now, Mr. Ortiz, have you had any alcoholic beverages to drink or taken any medicine or drugs within the last 48 hours? THE DEFENDANT: No.
      THE COURT: Have you drunk anything? Understand what I just asked you?
      THE DEFENDANT: Yes.
      THE COURT: And you said no?
      THE DEFENDANT: Um-hum.
      THE COURT: Have you ever been treated for any mental or emotional illness.
      THE DEFENDANT: Yes.
      THE COURT: You have?
      THE DEFENDANT: (nodding head vertically)
      THE COURT: Could you tell me what the nature of the treatment was and when it occurred?
      THE DEFENDANT: Mentally ill up in prison.
      THE COURT: In prison?
      THE DEFENDANT: Yes. Six months ago.
      THE COURT: Six months ago? Are you taking any medication at the present time?
      THE DEFENDANT: No, sir.
      THE COURT: Does this problem that you had six months ago effect your ability to understand what I’m saying to you now?
      THE DEFENDANT: No, sir.
      MR. CAMMARANO: Your Honor, if I might add, I’ve had extensive dealings with Mr. Ortiz, and I’m quite convinced he understands what’s going on at this point.
      THE COURT: Is there any question about his legal capacity at the time this incident occurred?
      MR. CAMMARANO: None, Your Honor.
      THE COURT: All right. Mr. Ortiz, how old are you?
      THE DEFENDANT: Twenty-five.
      THE COURT: How far did you go in school?
      THE DEFENDANT: Sophomore.
      THE COURT: Where did you go?
      THE DEFENDANT: John Jay, Brooklyn, New York.

        THE COURT: Have you had any formal education since your sophomore year in high school?
      THE DEFENDANT: Yes.
      THE COURT: What was that?
      THE DEFENDANT: At RACC. I was attending there.
      THE COURT: What courses did you take at RACC?
      THE DEFENDANT: G.E.D. courses and business accounting.
      THE COURT: Did you get your G.E.D. degree?
      THE DEFENDANT: No.
      THE COURT: Have you been employed? Did you have a job?
      THE DEFENDANT: Yes.
      THE COURT: What kind of work did you do?
      THE DEFENDANT: I did all kinds of jobs. All kind of work, sir.
      THE COURT: Manual labor jobs?
      THE DEFENDANT: Yes, my last job was supervisor.
      THE COURT: Where was it?
      THE DEFENDANT: City Hall.
      THE COURT: Now, Mr. Ortiz, did you have any questions about anything I either asked you or told you up to this time?
      THE DEFENDANT: No, sir.
      THE COURT: You still desire to plead guilty to the charge of robbery?
      THE DEFENDANT: Yes, sir.


author: WICKERSHAM, Judge:

text:
    482 A.2d 1113
    Paul R. ROSEN, Appellant, v. RITTENHOUSE TOWERS, Hotel Rittenhouse Associates, J.L. Wolgin Associates, Inc., Jack L. Wolgin.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Oct. 12, 1984.

      Russell D. Henkin, Philadelphia, for appellant.
    Mark R. Rosen, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WICKERSHAM, Judge:

In this case, Paul R. Rosen appeals from the order of the Court of Common Pleas of Philadelphia County granting a petition to strike a lis pendens filed by Rittenhouse Towers, et. al. The suit arose out of appellant’s attempt to purchase a penthouse condominium unit in Rittenhouse Towers from appellees.

Appellee Hotel Rittenhouse Associates (hereinafter referred to as “HRA”) is the owner of Rittenhouse Towers, a condominium/hotel which, at time of suit, was under construction in Rittenhouse Square, Philadelphia. On October 17, 1980, appellant Rosen issued a $5,000.00 check to appellee HRA as an initial deposit on a penthouse condominium unit. In consideration for this deposit, Rosen received a Condominium Apartment Reservation, pursuant to which HRA agreed to reserve unit 331 for him. This reservation provided that the condominium would be reserved until the “Expiration Time,” which was defined as the later of January 15, 1980, or fifteen (15) days following delivery to Rosen of HRA’s Public Offering Statement and a proposed Agreement of Sale. In no event, however, was the reservation to extend beyond January 30, 1981 unless agreed to in writing by the parties.

In a letter dated January 30, 1981, Rosen informed HRA that he had not yet received the proposed Agreement of Sale and that he did not want his reservation to expire as a result of HRA’s “failure to forward to [Rosen] the agreement and to enter into negotiations for an Agreement of Sale.” This letter also made reference to certain “understandings” which Rosen claimed had been reached between HRA and himself with regard to the incorporation of special provisions in the Agreement of Sale. Rosen stated that these “understandings” included the following:

1. The down payment would be provided by a Letter of Credit;
2. Secondary financing with respect to a portion of the purchase price would be made available by Mr. Wolgin;
3. Provisions relating to the obligation to close under the Agreement of Sale to be within 120 days of the occupancy being available on my floor and with respect to full service of the building being available in connection with such occupancy; and,
4. Mortgage contingency clause with respect to the financing of the purchase price which must be paid at settlement and the balance of the purchase price which must be paid at settlement (not including the amount of the purchase price deferred as a result of the secondary financing described above).

R.R. at 29a-30a.

On February 18, 1981, Laurada Byers, sales director for Rittenhouse Towers, sent a letter to Rosen confirming that the terms of Rosen’s condominium reservation dated October 17, 1980 remained in effect. This letter did not mention the “understandings” referred to by Rosen in his letter of January 30, 1981.

The Condominium Public Offering Statement and the proposed Agreement of Sale were forwarded to Rosen on August 27, 1981; the proposed Agreement of Sale did not include Rosen’s “understandings.” In a letter dated October 16, 1981, counsel for HRA reaffirmed an earlier rejection by Byers that the four items listed by Rosen were unacceptable and stated that no agreement to incorporate these items had ever been reached. The letter also advised Rosen:

all purchasers are now being asked to submit final executed Agreements of Sale in a form acceptable to HRA no later tha[n] October 23, 1981. If an executed Agreement of Sale is not submitted by you by such date, it will be assumed that you have elected not to purchase Unit 331; your deposit for this Unit will be returned immediately and the Unit will be placed back on the market.

R.R. at 75a.

On October 23, 1981, Rosen sent a letter to counsel for HRA reasserting his claim that he had certain “understandings” with HRA permitting him to purchase the condominium unit under certain specific provisions. Counsel for HRA responded in a letter dated November 2, 1981, noting that he had conferred with HRA and its employees and had confirmed that no agreement existed. This letter also stated that since Rosen had not executed an agreement of sale, his initial deposit was being returned and the unit had been placed on the market. A check in the amount of $5,282.64, representing Rosen’s initial deposit plus interest, was enclosed in the letter. Rosen accepted and deposited the check in his account.

Rosen then commenced this suit in equity seeking to compel appellees to transfer the condominium unit to him and asking for damages for appellees’ bad faith, misrepresentation, and breach of contract. Incident to the institution of this suit, Rosen caused lis pendens to issue against the premises. In response to Rosen’s complaint, appelleés filed an answer and new matter denying the existence of any agreement and asserting that Rosen’s claim was barred by the Statute of Frauds.

On March 10, 1982, appellees filed a petition to strike the lis pendens, and on April 13, 1982, Rosen filed his answer to said petition. On or about May 10, 1982, the Honorable Charles A. Lord issued an opinion and order striking the lis pendens. This appeal timely followed.

Appellant Rosen states the sole issue on appeal as follows:

Where a Complaint alleges that defendants agreed to sell real estate to plaintiff, and alleges that defendants ratified that agreement repeatedly to plaintiff, and then reneged on their agreement, may the statute of frauds be used as an engine of fraud by defendants to allow them to remarket the property to others, and should plaintiff’s lis pendens against the property be stricken without allowing discovery or a hearing?

Brief for Appellant at 1.

Our standard of review of equity cases is a narrow one.

[A]ppellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. Commonwealth Dept. of Environmental Resources v. Pa. Power Co., 461 Pa. 675, 337 A.2d 823 (1975). The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Delp v. Borough of Harrisville, 25 Pa.Cmwlth. 486, 360 A.2d 758 (1976).

Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980) , decided after remand, 495 Pa. 100, 432 A.2d 971 (1981).

Pursuant to these standards, we must examine whether the lower court abused its discretion or committed an error of law in striking the lis pendens. “[L]is pendens is based in common law and equity jurisprudence, rather than in statute, and is wholly subject to equitable principles.” Dorsch v. Jenkins, 243 Pa.Super. 300, 305, 365 A.2d 861, 863-64 (1976). Woods v. Peckich, 473 Pa. 226, 373 A.2d 1345 (1977); Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). “[I]f the operation of the doctrine should prove to be harsh or arbitrary in particular instances, equity can and should refuse to give it effect, and, under its power to remove a cloud on title, can and should cancel a notice of lis pendens which might otherwise exist.” Dice v. Bender, supra, 383 Pa. at 98, 117 A.2d at 727. Thus, the lower court must balance the equities to determine whether the application of the doctrine is harsh or arbitrary and whether the cancellation of the lis pendens would result in prejudice to the non-petitioning party. McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966).

Instantly, the lower court found that the equities favored appellees and required that the lis pendens be stricken. This result was based on the court’s finding that “[tjhere appears to be a substantial likelihood that [appellees] will prevail on the merits of this action, due to the possible bar by the Statute of Frauds of the alleged oral agreement of [appellant] and [appellees] regarding the Agreement of Sale.” Lower ct. op. at 3. Since we agree that the equities favor appellees, we affirm.

Appellant contends that he had an agreement with HRA that certain “understandings” would be included in the Agreement of Sale for his condominium unit. Appellees deny that such an agreement ever existed. A thorough review of the documentary evidence of record clearly reveals that there is no written embodiment of the alleged agreement. A further examination of the contents of the documents seems to indicate that while Rosen had discussed certain “understandings” with HRA and its sales staff, no final agreement was ever reached. Appellant argues, nevertheless, that ah oral agreement existed between the parties.

The Statute of Frauds mandates that contracts for the sale of real property be in writing. The purpose of the statute is to prevent the possibility of enforcing unfounded, fraudulent claims, by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest. Burns v. Baumgardner, 303 Pa.Super. 85, 449 A.2d 590 (1982). Instantly, it is clear that no writing exists which contains the signature of appellees and which indicates their acceptance of the alleged agreement.

Of course, the statute does not operate to absolutely invalidate an oral contract relating to land. Rather, it is intended to guard against perjury, and if a titleholder admits that he entered into an oral contract, the purpose of the statute is served and the oral contract will be enforced. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946). In the case at bar, however, appellees have specifically denied entering into any form of oral agreement with Rosen concerning any specific provisions to be included in the Agreement of Sale.

We agree with the lower court that appellant’s contention that an oral agreement existed between the parties will most likely be barred by the operation of the Statute of Frauds. Given this likelihood, it would be inequitable to allow the cloud on title of Unit 331 to remain in effect. Thus, the lower court did not abuse its discretion in striking the lis pendens.

Order affirmed.

WIEAND, J., concurred in the result.

      . At that time, appellee HRA was trading as Rittenhouse Apartment Associates.

      . After listing his "understandings" in the letter of January 30, 1981, appellant Rosen went onto state:
      The foregoing are only some of the discussions, which I can recall at the writing of this letter, but I would be happy to sit down and discuss all the provisions of the Agreement of Sale in order to arrive at a mutually acceptable agreement at all parties convenience.
      R.R. at 30a (emphasis added).
      This indicates that no agreement had yet been reached. Further, none of the documents or letters from HRA or its counsel discuss any of the alleged “understandings.” In fact, appellees specifically deny that any agreement ever existed.

      . Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

      . Appellant contends that, at the very least, we should remand the case to the lower court so that a hearing may be held. In McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966), our supreme court stated:
      Ordinarily, it would be wise in cases of this type for the lower court to take testimony to ascertain the exact nature and extent of any possible prejudice that could result from the cancellation of lis pendens. In this way, the balancing of the equities can be more accurately resolved. However, we conclude that, under the circumstances, such was not necessary in the present instance. We also note that in Dice, supra, the issue was determined without the taking of testimony.

        McCahill v. Roberts, supra, 421 Pa. at 238, 219 A.2d at 309. We find that under the circumstances of this case, as in McCahill and Dice, the taking of testimony was unnecessary. Appellant contends that the testimony of Laurada Byers, HRA's sales representative, would support his position. We find this highly unlikely. It was Byers who supplied the verification in support of appellees’ answer and new matter and the affidavit in support of appellees’ motion to strike. Thus, Ms. Byers indicated that she agreed with the factual statements contained in these pleadings which expressly denied the existence of any agreement between the parties.


author: ROWLEY, Judge:

text:
    482 A.2d 1117
    GASLIN, INC., and Lorraine Cairo v. L.G.C. EXPORTS, INC., and Jorge Figueroa and Blimpie Industries, Ltd., or Successor to Same. Appeal of Jorge FIGUEROA.
    Superior Court of Pennsylvania.
    Argued March 7, 1984.
    Filed Oct. 12, 1984.

      Edwin B. Barnett, Philadelphia, for appellant.
    John J. Hagarty, Philadelphia, for appellees.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   ROWLEY, Judge:

Jorge Figueroa appeals from the Judgment entered pursuant to the trial court’s order of June 4, 1982, granting appellee’s motion to confirm an arbitration award entered against L.G.C. Exports, Inc. (L.G.C. Exports), Jorge Figueroa and Blimpie Industries, Ltd. (Blimpie), in the amount of $35,177.50. After a thorough review of the record herein, we vacate the judgment and the trial court’s order as to appellant.

By written contract dated October 22, 1979, Lorraine Cairo and Gaslin, Inc., licensees-appellees, purchased an exclusive license to operate a Blimpie Sandwich Restaurant from L.G.C. Exports, licensor. Lorraine Cairo, appellee, signed the franchise agreement on behalf of Gaslin, Inc., and Jorge Figueroa, appellant, signed it on behalf of L.G.C. Exports. The agreement contains the following arbitration clause:

20. ARBITRATION:

In the event LICENSEE has a disagreement with LI-CENSOR relating to the interpretation of their Licensing Agreement or relating to any conflict between the LICENSEE and LICENSOR, they both agree to submit the dispute to arbitration in accordance with the least expensive procedure of the American Arbitration Association in Philadelphia prior to the initiation of any legal proceeding whatsoever. Notwithstanding the foregoing LICENSEE agrees to continue payment without cessation of all 6% of gross sales due and owing LICENSOR or LICENSOR’S designated independent and unaffiliated leasing corporation, and continue to operate their Blimpie Base restaurant in accordance with the approved product line and operational manual indicated herein.

Eventually, a dispute involving the franchise agreement arose and Cairo demanded arbitration pursuant to the above-cited arbitration clause, naming as respondents, L.G.C. Exports, Blimpie, and Figueroa. In his Answer to Cairo’s demand for arbitration, filed with the American Arbitration Association (Arbitration Association), Figueroa objected to the jurisdiction of the Arbitration Association as to him, alleging that he, individually, was not a party to the franchise agreement dated October 22, 1979, and that he did not consent to arbitration. Following a hearing before an arbitrator, an award was entered in favor of Cairo and against L.G.C. Exports, Figueroa and Blimpie, jointly and severally, in the amount of $35,177.50. On January 8, 1982, Cairo filed a Motion to confirm the arbitrator’s award in the Court of Common Pleas pursuant to 42 Pa.C.S.A. § 7313 (Uniform Arbitration Act, Act of October 5, 1980, P.L. 693, No. 142). Figueroa filed an Answer to Cairo’s Motion to Confirm the Arbitrator’s Award wherein he again asserted that he was not a party to the arbitration agreement and that the Arbitration Association did not have jurisdiction to decide the dispute as to him, individually. Following argument and consideration of the parties’ briefs, appellee’s motion to confirm the award was granted by the trial court and judgment was entered on the arbitrator’s award.

On appeal, Figueroa’s first contention is that the arbitration was governed by common-law principles and, thus, the trial court erred in applying the provisions of the Uniform Arbitration Act of 1980 to this dispute. We agree.

Prior to 1980, statutory arbitration in Pennsylvania was governed by the Arbitration Act of 1927 (1927 Act). In October of 1980, the Pennsylvania Legislature adopted the Uniform Arbitration Act (1980 Act) which displaced the 1927 Act. In its opinion, the trial court determined that the provisions of the 1980 Act were dispositive of the issues involved in the instant case. The trial court further held that appellant, Figueroa, had waived any defenses to the arbitrator’s award by failing to follow the procedures for contesting the award outlined in the 1980 Act. Therefore, the trial court never reached the merits of appellant’s challenge to the arbitrator’s jurisdiction. We note, however, that the franchise agreement that contained the arbitration clause was executed on October 22, 1979, almost one year before the 1980 Act was adopted by the Pennsylvania Legislature. Therefore, even if the language of the arbitration clause herein could be construed as providing for statutory arbitration, the governing statute would necessarily be the Arbitration Act of 1927, the statute in effect when the parties signed the agreement. Our examination of the arbitration clause in this case reveals, however, that it provided for arbitration in accordance with the common law, and not pursuant to any statute.

In determining whether an arbitration proceeding is governed by common-law principles or by the provisions of the 1927 Act, our courts have examined the language of the contractual arbitration provision and the procedures followed by the parties during arbitration. Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965). The 1927 Act has been applied only if the parties expressly or impliedly provided for it in their agreement, and the Act’s procedures were followed. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978). See Gentile Building Contracting v. Weiss, 328 Pa.Super. 475, 477 A.2d 544 (1984). If the contractual arbitration provision does not designate whether the 1927 Act or common-law principles apply, and there is no evidence that the parties subsequently agreed, either expressly or impliedly, to follow the Act’s provisions, the common-law rules are controlling. Runewicz v. Keystone Insurance Co., supra; J.A. Robbins Co., Inc. v. Airportels, Inc., 418 Pa. 257, 210 A.2d 896 (1965). Applying this standard, it is clear that the arbitration in the instant case was not governed by statute.

The franchise agreement did not expressly provide for arbitration pursuant to the 1927 Act. Rather, the agreement provided for arbitration of disputes “in accordance with the least expensive procedure of the American Arbitration Association”. There is no precedent suggesting that the inclusion of such language in an arbitration provision evidences an implicit reference to the 1927 Act. On the contrary, in Campbell-Ellsworth, Inc. v. Holy Trinity, 233 Pa.Super. 126, 336 A.2d 346 (1975), a clause which required that any disputes be resolved by arbitration “in accordance with the Construction Industry Rules of the American Arbitration Association” led to arbitration at common law since the agreement was deemed to be silent with respect to the applicable law. Id., 233 Pa.Superior Ct. at 130, 336 A.2d at 347. See Runewicz v. Keystone Insurance Co., supra (where agreement did not expressly provide for arbitration pursuant to 1927 Act, but instead, provided for arbitration under the rules of the American Arbitration Association, the arbitration was at common law). See also, Wingate Construction Co. v. Schweizer Dipple, Inc., supra; Napet, Inc. v. John Benkart & Sons, Co., 288 Pa.Super. 187, 431 A.2d 351 (1981).

Thus, the agreement in this case did not expressly or implicitly provide for statutory arbitration. In addition, the parties did not subsequently agree, expressly or impliedly, to follow the provisions of the 1927 Act. Cairo filed a “Motion to Conform Arbitrator’s Award and for Entry of Judgment in Conformity therewith Pursuant to 42 Pa.C.S.A. Sec. 7313.” This motion suggests that Cairo believed that the procedures laid out in the 1980 Act were applicable. The Caption of Figueroa’s Answer to Cairo’s Motion stated that it was filed pursuant to 42 Pa.C.S.A. § 7313. Thus, it is clear that neither party impliedly agreed to apply the 1927 Act. It is likewise clear that a mere reference to the 1980 Act in the parties’ pleadings does not justify applying the provisions of the 1980 Act. The 1980 Act does not provide that a party may impliedly agree to follow its provisions, rather, it requires an express written agreement to arbitrate pursuant to that statute. 42 Pa.C.S.A. § 7302. There was no express written agreement to arbitrate in accordance with the 1980 Act in this case.

We hold, therefore, that arbitration of the dispute in this case was governed by common-law principles; hence, Figueroa was not required to follow the proscriptions of the 1927 or 1980 Acts. Accordingly, the trial court committed an error of law in determining that Figueroa had waived his right to challenge the arbitrator’s award by failing to follow the procedures set forth in the 1980 Act.

Appellant-Figueroa’s main contention, argued before the trial court and asserted on this appeal, is that he was not a party to the franchise agreement executed by Cairo and L.G.C. Exports and, thus, he did not consent to arbitration. Appellant argues that the arbitrator had no power or authority to enter an award against him and the trial court erred in refusing to set aside that award as to him.

In common-law arbitration proceedings, the arbitrator is the final judge of law and fact and we may not review an award for an alleged error on that basis. Runewicz v. Keystone Insurance Co., supra. It is well settled, however, that voluntary arbitration is a matter of contract, and absent an agreement between the parties to arbitrate their disputes, they cannot be compelled to arbitrate. Hoffman v. Gekoski, 250 Pa.Super. 49, 53, 378 A.2d 447, 448 (1977). Whether an agreement to arbitrate was entered into and whether the dispute falls within the scope of an arbitration provision have traditionally been questions for the court to determine. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975); Mack Manufacturing Co. v. International Union, et al., 368 Pa. 37, 81 A.2d 562 (1951). Therefore, although the arbitrator is the final judge of law and fact, his power has not been extended to the degree that he may determine his own jurisdiction, that is, whether the arbitration tribunal has the requisite power to hear the particular case brought before it. Whether a party consented to arbitrate a dispute in the first instance is a jurisdictional question that must be decided by a court. Thus, Figueroa is correct in his claim that it was within the province of the trial court to pass upon the question whether he was a party to the franchise agreement executed by Cairo and L.G.C. Exports and, thereby, bound to arbitrate disputes pursuant to the arbitration clause contained in that agreement.

Appellee argues that appellant waived his challenge to the arbitrator’s jurisdiction by failing to seek to enjoin the arbitration proceeding when he first received notice of Cairo’s demand for arbitration. Appellee cites Hoffman v. Gekoski, supra, as support for this contention. We find appellee’s argument to be without merit.

In Hoffman v. Gekoski, supra, Norman Paul, of Paul Master Build Inc., and Albert Gekoski entered into an agreement for the construction of Gekoski’s house. Paul subsequently brought in Waverly Manor Corporation as a co-venturer. When Gekoski became dissatisfied with the poor quality of the work on his house, Victor Hoffman, the president and sole shareholder of Waverly Manor Corporation, agreed that he would personally take over supervision of the job. Gekoski eventually brought in another contractor to complete the work. Pursuant to an arbitration clause in the original contract, Gekoski filed a claim to recover additional costs incurred against Paul and Waverly Corporation. In addition, Gekoski filed a claim against Victor Hoffman, individually. Hoffman objected to the arbitrator’s jurisdiction on the ground that he never agreed to submit the question of his personal obligation to arbitration. The arbitration hearing commenced, but it could not be concluded in one day and it was rescheduled. In the meantime, Hoffman filed a complaint in equity requesting the trial court to permanently enjoin the arbitration proceedings as to him. The trial court determined that Hoffman was not individually bound by the agreement to arbitrate and, therefore, the injunction was granted. In affirming the trial court’s order granting the injunction, this Court stated:

When one party seeks to enjoin another from proceeding to arbitration, judicial inquiry is limited to the question of whether the parties agreed to arbitrate. Allentown Supply Corp. v. Hamburg Mun. Auth., 463 Pa. 167, 344 A.2d 477 (1975); Independence Development Inc. v. American Arbitration Ass’n, 460 Pa. 390, 333 A.2d 781 (1975). A party who can establish that he did not agree to arbitrate may be entitled to enjoin an arbitration an arbitration proceeding which seeks to bind him by its ruling. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975).

250 Pa.Super. at 53, 378 A.2d at 448. Clearly, Hoffman held that one who asserts that he is not a party to an agreement to arbitrate is justified in attempting to enjoin the arbitration proceeding. However, Hoffman does not hold that filing a complaint for a preliminary injunction is the exclusive method whereby a party may attack the arbitrator’s jurisdiction.

We are aware of no case where a person waived his right to claim that he was not a party to an arbitration agreement because he did not proceed to enjoin the arbitration before an award was entered. Although petitioning the trial court to enjoin the arbitration might have been the preferred procedure in this case, we are not persuaded that Figueroa waived his right to object to the arbitrator’s jurisdiction by failing to seek a permanent injunction. Indeed, our court has reviewed challenges to an arbitrator’s jurisdiction, raised for the first time at the appellate stage, after the entry of an award.

In Britex Waste Co. v. Schwab & Sons, Inc., 139 Pa.Super. 474, 12 A.2d 473 (1940), the plaintiffs brought suit in the trial court based upon an award of arbitrators directing defendants to pay for goods pursuant to a written contract between the parties. The defendant filed an affidavit of defense, and the trial court discharged the plaintiff’s rule for judgment on the ground that defendant’s affidavit presented a factual issue. On appeal, our Court held that the trial court erred in discharging the plaintiff’s rule for judgment on the basis of a factual dispute since questions that are the subject of an arbitrable dispute may not be retried in an action brought upon the award. Id., 139 Pa.Superior Ct. at 480, 12 A.2d at 476. The court determined that the only matter open to attack by a defendant after an arbitrator’s award is entered is the jurisdiction of the arbitrators. Therefore, the court proceeded to review only defendant’s contentions that the arbitration tribunal did not have jurisdiction to determine the parties’ disputes because conditions precedent to arbitration were not satisfied and because the defendant revoked the agreement.

Hassler v. Columbia Gas Transmission Corp., 318 Pa. Super. 302, 464 A.2d 1354 (1983), involved an agreement whereby Columbia Gas purchased a right-of-way over land owned by the Hasslers. The right-of-way agreement provided that Columbia would pay any damages arising to “crops and fences” from Columbia’s operations on the Hasslers’ land. The Hasslers brought suit against Columbia Gas seeking damages for inter alia, destruction of crops and fences and stampeding of cattle resulting from a ten-inch pipe that had been laid on the Hasslers’ land. The matter was referred to arbitration pursuant to an arbitration clause in the right-of-way agreement and, subsequently, the arbitrators recommended a $15,765.78 award in favor of the Hasslers which included compensation for the loss of trees and a cow. Columbia’s petition to vacate the award regarding the trees and cow was denied, and the award was confirmed by the court en banc. Columbia then appealed to this Court arguing for the first time, that the arbitrators had exceeded their jurisdiction in awarding damages for trees and a cow because the arbitration clause provided for arbitration of disputes concerning only damages to crops and fences.

Our Court properly observed that the question of the arbitrator’s jurisdiction — that is, whether the dispute was within the terms of the arbitration agreement — was for the court to determine. Therefore, our Court reviewed Columbia’s jurisdictional challenge, even though Columbia had not sought to enjoin the arbitration proceeding prior to the entry of an award, and had not objected to the arbitrator’s jurisdiction prior to the appellate stage.

In the instant case, Figueroa continually objected to the arbitrator’s power to hear the dispute regarding his alleged personal liability under the franchise agreement. Figueroa objected to the Arbitration Association’s jurisdiction in both his answer to appellee’s demand for arbitration and in his answer to appellee’s motion to confirm the arbitrator’s award. Figueroa appealed the trial court’s order granting appellee’s motion to confirm the award, again asserting that he was not a party to the franchise agreement and that he never consented to arbitration. Under these circumstances, the question whether the parties entered into an agreement to arbitrate was a proper question for judicial inquiry. Figueroa did not waive his right to raise this question by failing to seek to enjoin the arbitration proceedings; indeed, jurisdiction was the only matter open to attack by him after the arbitrator’s award was entered. Thus, we find that the issue regarding the arbitrator’s jurisdiction was properly before the trial court since it had been raised in Figueroa’s answer to Cairo’s motion to confirm the award.

Nonetheless, the trial court held that appellant had waived his defenses to the arbitrator’s award by failing to follow the procedures proscribed by the 1980 Act, and consequently, the court did not review the merits of appellant’s claim. On the record before us, it would be impossible for us to determine whether Figueroa signed the franchise agreement as a representative for L.G.C. Exports or in his individual capacity. Although the contract, on its face, suggests that Figueroa signed the agreement as an agent for L.G.C. Exports, it is not conclusive on that point. The question whether Figueroa is personally bound by the franchise agreement and, thus, bound to arbitrate disputes arising under that agreement is a question of fact that must be decided by the trial court following an evidentiary hearing.

Accordingly, we reverse the judgment and vacate the trial court’s order confirming the arbitrator’s award as to Figueroa. The case is remanded for further proceedings before the trial court. Jurisdiction is relinquished.

      . The other named defendants have not appealed and the judgment and order are not disturbed as to them.

      . The arbitrator was appointed pursuant to the rules and regulations of the Arbitration Association. Although Figueroa received notice of the date of the hearing before the arbitrator by mail, he did not appear.

      . Act of April 25, 1927, P.L. 381, No. 248, as amended, 5 P.S. §§ 161-181.

      . Act of October 5, 1980, P.L. 693, No. 142, § 501(a); effective in 60 days, 42 Pa.C.S.A. § 7301-7320.

      . There is no provision in the 1927 Act that addresses what specific language must be included in an agreement to arbitrate in order for the arbitration to be governed by the provisions of the 1927 Act.

      . Even if an implicit agreement were sufficient to justify applying the 1980 Act, we would find that no such agreement was made in this case. The language in the pleadings is the only evidence of an intention to apply statutory rules to the arbitration. Figueroa merely "borrowed” language from Cairo’s motion to confirm the award in order to formulate his answer to that motion. Indeed, Figueroa’s only purpose in answering was to continue objecting to the arbitrator’s authority to hear the dispute in the first instance. His answer was not an acquiescence that the arbitration was legitimate nor was it an acknowledgment that the arbitration was controlled by statute. See e.g., Harwitz v. Selas Corp. of America, 406 Pa. at 543, 178 A.2d at 619. Cf. Hart v. State Farm Auto Ins. Co., 288 Pa.Super. 53, 431 A.2d 283 (1981).

      . We note that our Court, in White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713 (1982) stated that a party who "proceeds to arbitration without objecting that the matter at issue is outside the arbitration agreement waives that objection." Id., 296 Pa.Superior Ct. at 179, 442 A.2d at 7Í7. However, the appeal in White was from an order denying a petition for the appointment of an arbitrator; thus, the parties in White had not proceeded to arbitration. The above-cited language was included only to point out a distinction between the procedure followed in White and the procedure followed in the case of Runewicz v. Keystone Insurance Co., supra, wherein the defendant proceeded to arbitration, and later argued unsuccessfully that the award was an "irregularity" that led to an unjust, inequitable or unconscionable result. Therefore, neither White or Runewicz dealt with a challenge to the arbitrator’s jurisdiction and these cases are not applicable to the instant controversy. Moreover, the instant case is distinguishable since Figueroa objected to the arbitrator’s jurisdiction at every stage of the proceeding.
      More recently, in Brennan v. General Accident Fire and Life Assurance Corp., 307 Pa.Super. 288, 453 A.2d 356 (1982), our Court stated;
      If a party proceeds to common law arbitration without first asking a court to find that the matter at issue is not within the scope of the arbitration agreement, the party may not later seek to have the court vacate an adverse award on the ground that the arbitrators incorrectly determined that the matter was within tíre scope of the agreement.

        Id., 307 Pa.Superior Ct. at 291, 453 A.2d at 357. (citing White v. Concord Mutual Insurance Co., supra ). The issue in Brennan was whether an order directing arbitration at common law was an appealable order. The above-cited passage was not dispositive of the issue involved since the parties had not yet proceeded to arbitration, rather, the passage was included as part of the court’s description of the standard of review on appeal from a common-law arbitration award. Consequently, this language was dicta in Brennan and it is not controlling in the instant case, especially in light of our Court's more recent opinion in Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 464 A.2d 1354 (1983).

      . As previously stated, a common-law arbitration award may not be reviewed on the basis of an error of law or fact. "The setting aside of an award is proper only on a showing of denial of a hearing or fraud, misconduct, corruption, or similar irregularity leading to an unjust, inequitable, or unconscionable award." Runewicz v. Keystone Insurance Co., 476 Pa. at 461, 383 A.2d at 191-192. In the instant case, however, the central inquiry is not whether the award was just, but whether Figueroa was bound to arbitrate this dispute in the first place. If Figueroa was not a party to the franchise agreement that contained the arbitration provision, then he did not consent to arbitrate this dispute and the award against him was improper.


author: WIEAND, Judge:

text:
    482 A. 2d 1124
    COMMONWEALTH of Pennsylvania, v. Daryll SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed Oct. 12, 1984.

      Gifford Cappellini, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Daryll Smith was tried by jury and convicted of aggravated assault in connection with the beating of a patron of a nightclub where Smith worked as a “bouncer.” Following denial of post-verdict motions, Smith was sentenced to imprisonment for not less than six months nor more than five years, less one day. On direct appeal from the judgment of sentence, Smith contends that the trial court erred when it: (1) refused to permit evidence, by direct or cross-examination, of the victim’s involvement in an altercation at another tavern earlier the same night; (2) instructed the jury on accomplice liability; and (3) imposed a sentence of total confinement. We affirm.

The Commonwealth’s evidence showed that Jeffrey Bayer, a serviceman home on leave, had entered the “Station,” a Wilkes-Barre nightclub, at or about midnight on June 18, 1981. His efforts to find a dance partner were unsuccessful. One or more intended dance partners poured drinks on his head. Daryll Smith and George Farro were employed by the “Station” as bouncers. They requested Bayer to leave; when he refused, they forcibly ejected him. Outside, according to the Commonwealth’s evidence, Smith and Farro punched and kicked Bayer until he fell to the ground in a fetal position. When Bayer asked to re-enter the bar to retrieve the shirt which he had removed after drinks had been poured on him, Smith again struck him. As Bayer lay prone on the ground, Smith struck him once again; and Farro, enraged because his shirt had been torn during the preceding altercation, dropped a cinder block on Bayer’s head. As a result of the beating, Bayer suffered a fractured skull and related head injuries which required two surgical operations, lengthy hospitalization and the placement of a plastic plate in his skull. This treatment, it was testified, was essential to prevent Bayer’s death from injuries received at the hands of Smith and Farro.

Smith’s defense at trial was that Bayer had been the aggressor and that he, Smith, had used no more than reasonable force to eject Bayer from the nightclub. This escalated outside, according to the defense, because Bayer continued to attack Smith and Farro. Smith contended additionally that Farro, not Smith, had inflicted the beating upon Bayer. Smith denied that anyone had struck Bayer’s head with a cinder block.

Smith attempted to show, by cross-examination of Bayer and also by direct evidence, that before Bayer entered the “Station,” he had instigated and had been involved in an altercation at another bar. The purpose of this evidence, his attorney said, was to show Bayer’s predilection for violence. The trial court held that the evidence was irrelevant and refused to allow it.

The pertinent law was summarized by the Supreme Court in Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980), as follows:

In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), we said testimony as to the victim’s character is admissible for the following purposes: (1) to corroborate the defendant’s alleged knowledge of the victim’s violent character to corroborate the defendant’s testimony that he had a reasonable belief his life was in danger and (2) to prove the allegedly violent propensities of the victim to show he was the aggressor. We further noted that, generally, character can be proved only by reputation evidence. In Commonwealth v. Darby, 473 Pa. 109, 373 A.2d 1073 (1977), we held that convictions and violent acts of a victim which did not result in conviction, of which the defendant had knowledge, could be introduced for the first purpose mentioned in Commonwealth v. Amos, supra. We further held, however, that violent acts which did not result in conviction could not be offered for the second purpose announced in Commonwealth v. Amos, supra. See also Commonwealth v. Stewart, 483 Pa. 176 n. 4, 394 A.2d 968 n. 4 (1978).

Id., 490 Pa. at 385-386, 416 A.2d at 988.

The disputed evidence in this case was inadmissible to prove the likelihood that Bayer had been the aggressor. A violent act which does not result in a conviction is inadmissible for the purpose of proving violent propensities. Commonwealth v. Darby, supra, 473 Pa. at 112-113, 373 A.2d at 1074. See also: Commonwealth v. Smith, supra; Commonwealth v. Stewart, supra. It was also inadmissible to show that appellant and Farro were in fear of Bayer when they encountered him. Neither Smith nor Farro had had any knowledge of the prior incident at the time they removed Bayer from the “Station.” The prior incident, therefore, had no relevancy to Smith’s state of mind at the time of his altercation with Bayer. See: Commonwealth v. Stewart, supra, 483 Pa. at 180 n. 2, 394 A.2d at 970 n. 2; Commonwealth v. Horne, 479 Pa. 496, 499-500, 388 A.2d 1040, 1042 (1978); Commonwealth v. Darby, supra 473 Pa. at 113, 373 A.2d at 1075; Commonwealth v. Quarles, 310 Pa.Super. 74, 82, 456 A.2d 188, 193 (1983); Commonwealth v. Morris, 273 Pa.Super. 477, 482, 417 A.2d 748, 750 (1979), rev’d on other grounds, 492 Pa. 565, 424 A.2d 1336 (1981). Compare: Commonwealth v. Beck, 485 Pa. 475, 478-479, 402 A.2d 1371, 1373 (1979) (plurality opinion). We conclude, therefore, that the trial court properly excluded evidence of the altercation in which the victim had been involved earlier on the same evening. The prior incident was irrelevant to the charges against Smith and would have raised collateral issues serving only to distract the jurors from the relevant circumstances of the parties’ conduct at times pertinent to the offense with which Smith had been charged.

The information filed by the District Attorney’s Office on November 9, 1981 did not allege that Smith was criminally liable as an accomplice because he had acted in concert with Farro. On appeal, Smith argues that because he was not charged as an accomplice, the trial court erred when it instructed the jury that Smith could be found guilty even if it found that the actual beating had been inflicted by Farro. We disagree.

In Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979), an evenly divided Supreme Court affirmed a conviction based on accomplice liability where the information had charged the defendant as the perpetrator. Writing in support of affirmance, Justice [later Chief Justice] O’Brien observed that different modes of complicity have no procedural significance. The opinion in support of reversal, written by Justice [later Chief Justice] Roberts was based upon what he conceived to be a Commonwealth rejection of accomplice liability which had misled the defense. In Commonwealth v. McDuffie, 319 Pa.Super. 509, 466 A.2d 660 (1983), this Court held that where the defense had not been misled because the information clearly alleged that the defendant had acted with another, the defendant could be convicted as an accomplice even though the information charged him with “committing” the crime.

In the instant case, appellant was not misled by the Commonwealth. Although Smith had been charged as a principal, he was scheduled originally to be tried jointly with Farro for assaultive acts committed in concert. His criminal liability as an accomplice was advanced repeatedly during the trial in which he attempted to transfer criminal responsibility to Farro. Under these circumstances, appellant was not prejudiced by the averments of the information, and the trial court properly instructed the jury that appellant could be convicted if he had cooperated with and assisted Farro in inflicting serious bodily injury on Bayer.

Finally, appellant argues that the trial court’s sentence was excessive because it included confinement. A review of the record and the sentencing court’s reasons, however, fails to disclose any abuse of discretion. The judgment of sentence, therefore, will be affirmed.

Affirmed.

      . 18 Pa.C.S. § 2702.

      . Smith also argues in his appellate brief that he used only reasonable force to evict the victim from the nightclub. It is not clear from his brief whether this argument is made in support of an arrest of judgment on grounds that the evidence was insufficient to sustain the verdict or a new trial on grounds that the verdict was against the weight of the evidence. However, neither argument was raised in post-verdict motions filed in the trial court; and both, therefore, have been waived. Commonwealth v. Mason, 326 Pa.Super. 637, 474 A.2d 656 (1984); Commonwealth v. McDonald, 322 Pa.Super. 110, 119-120, 469 A.2d 206, 210-211 (1983).

      . Farro was tried separately and was also found guilty of aggravated assault.