text:
    620 A.2d 521
    Calvin MUSSELMAN, Terry M. Cesare, v. WEICHERT REALTORS. Appeal of: Terry M. CESARE.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1992.
    Filed Feb. 22, 1993.

      Karl K. Labarr, Jr., Easton, for appellant.
    Denise Wester, Allentown, for Musselman & Cesare, appellees.
    Before CIRILLO, KELLY and HESTER, JJ.
   HESTER, Judge:

Terry M. Cesare appeals from the December 6, 1991 order entered by the Court of Common Pleas of Northampton County barring him from asserting any future claim in this action against either party. Since we find numerous procedural irregularities in both the instant order and the inter-pleader order which gave rise to this controversy, we are constrained to reverse the judgment barring appellant from asserting claims and remand the interpleader order to the court of common pleas for proceedings consistent with this adjudication.

On October 23, 1987, Calvin Musselman, appellee herein, agreed to sell Hampton Farms, property located in Allen Township, Northampton County, to Terry Cesare. By agreement, appellant was required to deposit a $40,000.00 down payment with the real estate company handling the transaction, Weichert Realtors. The Court of Common Pleas of Northampton County issued contingent approval for the buyer’s planned subdivision on July 17, 1990. Musselman claims that this order constituted final approval. He argues that assuming an appeal period, final approval was granted on August 16,1990. The signed agreement provided a thirty day extension period from the final approval if it was not granted by the planned closing date of April 30, 1988. Therefore, Musselman claims that the settlement was required on or before September 15, 1990. The seller, alleging that Cesare took no steps to schedule the closing by that deadline, deemed Cesare in default and requested the down payment from Weichert as per the agreement. Weichert refused, and Musselman sued the real estate company.

In order to protect itself against multiple liability with regard to this single transaction, Weichert, appropriately complying with 42 Pa.R.C.P. 2303, petitioned the court to order the buyer and seller to interplead in this action. The petition also asked the court to order the petitioner to pay the $40,000 to the prothonotary pending the outcome of the lawsuit. Weichert, the defendant/petitioner, claimed that if the court determined that Terry Cesare was in default under the agreement of sale, then it would be entitled to fifty percent of the buyer’s down payment, or $20,000.

Pa.R.C.P. 2303 dictates the following format for use in filing a petition for interpleader:

Rule 2303. Allegations Required in Petition. Stay of Proceedings
(a) The petition for interpleader shall allege
(1) that a claimant not a party of record has made or is expected to make a demand upon the defendant as a result of which the defendant is or may be exposed to double or multiple liability to the plaintiff and to such claimant as to all or any part of the claim asserted by the plaintiff.
(2) that the petition is filed in good faith and not in collusion with the plaintiff or any claimant.
(3) the interest, if any, which the defendant claims in the money or property in controversy and whether he is able (or if not, the reasons therefor) to pay or deliver that part of the money or property as to which he claims no interest into court or to such person as the court may direct.
(4) whether he has admitted the claim of, or subjected himself to independent liability to, the plaintiff or any claimant in respect to the subject matter of the action.
(b) The petition shall be subscribed and verified.
(c) The filing of the petition shall stay all proceedings in the action until the court has disposed of the petition.

The trial court issued an order granting the petition. The form of the order substantially deviated from Pa.R.C.P. 2304 which provides:

Rule 2304. Order of Court
The petition shall be accompanied by a form of order of the court substantially as follows:
(Caption of the Action)
Commonwealth of Pennsylvania
Now, this _ day of_A.D. _, the petition of _(insert name of party seeking interpleader) is granted and_(insert name of the claimant not a party to the action) is added to the record as a party plaintiff and enjoined from commencing or further prosecuting any action in any court against _ (the petitioner) to enforce in whole or in part any claim against him set forth in said petition, except as a party to the above entitled action.
Now, therefore, we command you, the Sheriff of the County of _ to direct the claimant, _ (insert name of the claimant and his address) to file in the above entitled action to the office of the _ (insert title of officer and court) a complaint within twenty days after being served with copies of the petition for interpleader and this order and all pleadings heretofore filed in the above entitled action if said service was made within your county, or within thirty days of said service if said service was made within any other county of this Commonwealth.
By the court
___, J-

While the court properly named Cesare as an additional plaintiff to the suit against Weichert, it then erred by ordering that Cesare had twenty days in which to file and serve a complaint upon the other plaintiff, Musselman, instead of the defendant,

Weichert.

Cesare failed to respond to the order within twenty days, and Musselman, the other plaintiff, relying upon the limitations set forth in Pa.R.C.P. 2309(a), petitioned the court to bar appellant from asserting a claim against Weichert for the $40,000. Cesare filed preliminary objections opposing Mussel-man’s motion. The court granted Musselman’s petition and further, barred Cesare from asserting a claim against Mussel-man. This appeal followed.

Appellant raises several valid issues on appeal. Specifically, he argues that Pa.R.C.P. 2314 empowers only a defendant in an interpleader action to move the court to enter a judgment forever barring the claimant from enforcing his claim against the defendant. We agree. The only instance in which the statute arguably may empower a plaintiff to request a judgment barring the claimant from asserting a claim is in a case where the petitioning defendant has disclaimed all right to the money held by the court. Goodrich-Amram § 2314:3 observes that the purpose of the interpleader rule would be thwarted if the plaintiff could not enforce, against the claimant, the consequences of his failure to respond to the court’s order. Therefore, in the event that a defendant disclaims all interest in the action, and pays the controversial money into court, the courts may allow a plaintiff, the only remaining party with an interest, to stand in the shoes of the defendant, and file a motion to bar claimant from asserting any claim against the retained money.

This is not the situation here, however. While Musselman argues that it was proper for him to petition the court to bar Cesare forever from asserting his rightful claim against Weichert, he fails to reconcile his position with the clear, statutory language which empowers only a defendant to file such a motion. He argues that he should be permitted “to act in the shoes of a defendant where defendant fails and refuses to move for a barred judgment against claimant upon claimant’s default____” Appellee’s brief at 6. Musselman’s argument disregards the motivating force behind an interpleaded action. Its purpose is to protect the defendant against multiple liability. If a defendant refuses or neglects to petition the court for a judgment barring the claimant from asserting a future claim, it is within his right. The rules provide no recourse in this instance for plaintiffs who wish to protect a defendant’s interest. Although appellee chooses to argue the theories postulated in Goodrich-Amram, he does so with a careless disregard for the fact that the defendant in this case has not disclaimed its interest in the held money. Clearly, this is evident in defendant’s petition for interpleader, sub-section (6): “[I]n the event that Terry M. Cesare has defaulted under the Agreement of Sale, Defendant is entitled to 50% of the down monies paid by Terry M. Cesare, which equals the sum of $20,000.” Reproduced Record (“R.R”) at 17a. Therefore, we concur with Cesare’s position that Musselman was not empowered statutorily to seek the protection of Rule 2314.

Even if we postulated that Weichert’s failure to file the motion should be characterized as an intention to disclaim its interest in the disputed money, the order would overreach the relief requested in the petition. Musselman requested only that the court bar Cesare from asserting a claim against Weichert. The court not only granted that request, but also added that Cesare was barred from ever asserting a claim against Musselman. Clearly, this was error.

Furthermore, the court never ordered a pretrial conference as required by Pa.R.C.P. 2313. Therefore, this appeal is the first opportunity Cesare has had to raise these issues and question the validity of the order which prohibited the exercise of his legal right. Cesare also challenges the validity of the initial interpleader order.

First, Cesare attacks the form of the order attached to Weichert’s petition for interpleader. He argues that it does not comply substantially with Pa.R.C.P. 2304. Cesare contends that Weichert asked the court to order Cesare to file a claim against Musselman. Our reading of the petition reveals the following pertinent portion of the order; “The Defendant expects Terry M. Cesare, who is not a party to this action, to make a demand upon defendant.” R.R. at 17a, see subsection (4) of the petition for interpleader. This language complies with Rule 2304. Therefore, we can locate no error.

Next, Cesare argues that Weichert erred because the language of the interpleader petition deviates from Rule 2309. We disagree. Rule 2309 does not address the form of the petition, it merely addresses the subsequent responsibilities of the interpleaded parties. Our independent evaluation of the petition compels the conclusion that Weichert submitted a valid petition to the court for consideration of the pleadings contained therein.

Cesare’s final argument has merit. He asserts that the court order itself deviated from the form suggested by Rule 2304. We agree. While it correctly grants Weichert’s petition and adds Cesare to the record as a party plaintiff, it then requires him to file and serve a complaint against Musselman, the other plaintiff to the same action. In pertinent part, the instant order reads as follows: “IT IS FURTHER ORDERED that within twenty (20) days of service of the Order, the annexed Petition and all pleadings heretofore filed in this action upon Terry M. Cesare, he shall file and serve upon Plaintiff a Complaint setting forth his claim, if any, against the interpleaded funds.” R.R. at 14a (emphasis added). Obviously, Cesare should have been directed to file a claim against Weichert. See Rule 2809.

We will not address Cesare’s argument regarding the finality of the subdivision approval granted on July 17, 1990. Although Cesare argues that he has no quarrel with Weichert, it is clear that Weichert will claim half of the down money should Cesare be found in default. In addition, while Cesare asserts that he should not be placed in a position to prove that he is not in default, he will need to sustain his burden if he wishes a refund of his money. Accordingly, the issue of whether Cesare has defaulted under the terms of the original agreement of sale will be addressed by the court after the buyer and seller interplead, and the case proceeds to trial.

In accordance with the foregoing, we reverse the judgment barring appellant from filing claims against appellee and defendant in this case, and remand the interpleader order to the Court of Common Pleas.

      . Rule 2309. Claimant’s Statement of Claim. Service Thereof
      (a) Within the time required by the order, each claimant interpleaded shall file a statement of his claim against the defendant and any money or property paid or delivered by said defendant pursuant to an order of the court.

      . Rule 2314. Judgment Barring Claim
      If an interpleaded party fails to plead as required by Rule 2309(a) the defendant may move the court to enter a judgment forever barring such party from asserting any claim against the defendant set forth in the petition for interpleader.

      . Rule 2313. Pre-trial Conference
      Upon the expiration of the period for the filing of pleadings by all parties the court shall direct a pre-trial conference under Rule 212.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    620 A.2d 525
    COMMONWEALTH of Pennsylvania, v. Kenneth M. KASUNIC, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1992.
    Filed Feb. 19, 1993.

      Donald P. Tarosky, Greensburg, for appellant.
    Leslie J. Uncapher, Asst. Dist. Atty., Vandergrift, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This appeal implicates the burgeoning doctrine of relating back blood alcohol content (BAC) evidence of a defendant in accordance with our Supreme Court’s companion decisions in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992). On May 6, 1991, a jury convicted appellant, Kenneth Kasunic, of one count of driving under the influence of alcohol with a blood alcohol content over G.10%. Appellant filed timely post-trial motions which were denied. The trial court then sentenced appellant and this timely appeal followed.

The facts giving rise to the instant appeal are as follows: In the early morning hours of December 23, 1989, the temperature was approximately four (4) degrees below zero Fahrenheit. At approximately 5:20 a.m., the Penn Township police received a call through 911 that there was a vehicle on the berm of Pleasant Valley Road in Penn Township, with a man lying next to the vehicle. Penn Valley Police Officer Anthony Pécora responded to the call and found appellant lying on the pavement next to a pickup truck. The vehicle was running and the driver’s door was open. Officer Pécora picked up appellant from the roadway and smelled alcohol. Officer Pécora radioed for backup. When the backup arrived, the police officers placed appellant in a patrol car out of the inclement weather. Soon afterwards, appellant was transported to the police station where field sobriety tests were administered. Appellant failed two of the tests. Appellant was then transported to Monsour Hospital to have blood samples taken to ascertain his BAC. The test, taken approximately fifty minutes later, revealed appellant’s BAC to be 0.21%. Based on this evidence, the Commonwealth filed the charges against appellant which serve as the basis for this appeal.

Appellant raises the following issues for our review:

1. Did the Commonwealth present sufficient evidence to establish that the defendant was operating a motor vehicle when his blood alcohol level was in excess of 0.10% in violation of 75 Pa.C.S.A. § 3731(a)(4);
2. Did the lower court error [sic] in permitting the introduction of [a] statement made by the defendant prior to establishing the corpus delicti of the crime?

We shall consider both of appellant’s issues.

First, appellant questions whether the Commonwealth presented sufficient evidence to establish a violation of Pennsylvania’s drunk driving statute given that the Commonwealth failed to present evidence relating appellant’s blood alcohol content back to the time he was driving. Our standard of review for claims raising the sufficiency of the evidence is well established. “[A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231, (1983) (citations omitted). The proper application of the sufficiency test requires us to evaluate the entire trial record and all evidence actually received in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must review the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). Moreover, the jury, as the trier of fact, is free to believe all, some or none of the evidence presented. Griscavage, 512 Pa. at 543, 517 A.2d at 1257.

Appellant was found guilty of section 3731(a)(4) of the Pennsylvania Vehicle Code, which states:

(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
‡ ‡ ‡ ‡ ‡ *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

75 Pa.C.S.A. § 3731(a)(4) (emphasis added).

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and the companion case of Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), the Pennsylvania Supreme Court held that in order to sustain a conviction based on subsection (a)(4), the Commonwealth must relate the evidence of a defendant’s blood alcohol content (BAC) back to the time the defendant was driving, operating, or in physical control of an automobile. Jarman, 529 Pa. at 97, 601 A.2d at 1231. In both Jarman and Modaffare, the individual defendants had BAC’s of 0.114% and 0.108%, respectively. Jar-man’s blood sample was taken approximately one hour after being arrested for drunk driving while Modaffare’s blood sample was taken two hours after being involved in an auto accident. In both cases, the Commonwealth presented expert medical testimony which revealed that a person’s BAC peaks gradually one hour from the time he last consumed an alcoholic beverage, and declines thereafter. Thus, although a person may register a particular BAC when samples are taken, he may have a higher or lower BAC while driving.

The Court in both Jarman and Modaffare reasoned that because of the specific and unique wording of the Pennsylvania drunk driving statute, which makes it an offense to drive, operate or be in physical control of an automobile while his BAC is 0.10% or greater, the Commonwealth cannot meet its burden of proving that a defendant has been driving with a BAC level of 0.10% or greater solely by presenting evidence of the BAC. Rather, the Commonwealth must relate the BAC results back to the time the defendant operated the motor vehicle. Evidence relating a defendant’s BAC to the time of driving is both a factor of the BAC levels themselves and the amount of time it takes the Commonwealth to take blood samples from the defendant. As the Court explained:

In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after the suspects have been stopped, there is a strong inference that blood alcohol levels were in the prohibited range while driving. However, where ... the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the sample was not insignificant, the inference of guilt is weakened.

Jarman, 529 Pa. at 96, 601 A.2d at 1231. Thus, the Supreme Court found insufficient evidence upon which to convict Jar-man and Modaffare. Their individual BAC’s were barely greater than the requisite 0.10% necessary to convict, and the blood samples were taken at least an hour after the defendants were arrested. Had their BAC’s peaked at the time the samples were drawn, they could have been driving with a BAC of less than 0.10%.

In Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), allocatur denied, 531 Pa. 660, 613 A.2d 1209 (1992), a panel of this Court arrested judgment upon similar facts. In that case, the police obtained blood samples from the defendant Osborne fifty minutes after being arrested. Osborne’s BAC registered 0.1488%. We held that Osborne’s BAC did not substantially deviate from 0.10% and the evidence of guilt was further weakened by the time lapse between Osborne’s arrest and the time the blood samples were taken. Id. 414 Pa.Super. at 129, 606 A.2d at 531. The Osborne panel further explained the Supreme Court’s holdings in Jarman and Modaffare as follows:

[T]he [S]upreme [C]ourt did not draw a bright numerical line between what it would consider to be a minimal upward departure suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt. In a like vein, the [S]upreme [C]ourt failed to establish a temporal cut-off for the drawing of a suspect’s blood to indicate either a weak or strong inference of guilt. In our view, and in accordance with the dual standards set forth by our [S]upreme [C]ourt in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused’s BAC test result to the time of driving.

Id. 414 Pa.Super. at 128, 606 A.2d at 531. Thus, contrary to appellant’s assertion in the present case, the Commonwealth need not always present evidence relating a suspects BAC results back to the time of driving. Where a strong inference of guilt exists, such evidence may be sufficient to convict a person of driving while intoxicated.

In the present case, appellant’s BAC was 0.21% and the test was taken approximately fifty minutes after appellant was found lying on the roadway. The Commonwealth presented no evidence attempting to relate the BAC results back to the time appellant was operating the automobile. Nonetheless, we determine that such evidence, under the facts of this case, was not necessary to prove that appellant was operating a vehicle while his BAC was 0.10% or greater. First, we note that appellant’s BAC was over twice the legal limit. We deem this amount a substantial departure from the legal limit thereby creating a stronger inference that appellant’s BAC was over the legal limit at the time he was operating the car. The fifty minute lapse between the time the officers found appellant and the time when his blood sample was taken is long. Moreover, the evidence does not indicate the exact time when appellant operated his vehicle. Nonetheless, in light of the frigid temperature of four degrees below zero Fahrenheit that night, appellant could not have been at the scene laying on the road for a substantial period of time. There was no evidence that he was suffering from any effects of cold weather (ie., frostbite, hypothermia). Also, Officer Pécora stated that he was on duty from 11:00 p.m. the previous night until 7:00 a.m. that morning and patrolled the location of the incident. Pécora indicated that appellant’s truck was not parked on the roadway before he responded to the call at 5:20 a.m. Given the substantial deviation appellant’s BAC was from the legal limit, we find that the Commonwealth sufficiently proved its case without adducing expert evidence relating back appellant’s BAC to the time of driving. See Commonwealth v. Mukina, 422 Pa.Super. 455, 619 A.2d 766 (1993) (Commonwealth was not required to relate blood alcohol content results to the time of driving where the blood alcohol test was administered one hour after the defendant was driving and his blood alcohol content of 0.204% deviated substantially from the requisite 0.10% necessary for conviction).

Appellant next contends that the lower court erred in allowing evidence of appellant’s statements to be admitted prior to the Commonwealth establishing the corpus delicti of the crime of driving while intoxicated. This rule prohibits the introduction of statements made by a defendant before independent evidence establishing the crime is introduced. Commonwealth v. DeLeon, 276 Pa.Super. 36, 39, 419 A.2d 82, 84 (1980). The corpus delicti is established upon evidence of (1) the occurrence of the specific kind of injury or loss; and, (2) someone’s criminality as the source of loss. Id. at 40, 419 A.2d at 84. If the independent evidence points to an unlawful act, the Commonwealth need not affirmatively exclude the possibility of an accident in order to establish the corpus delicti. Id. Contrary to appellant’s assertion, the injury or loss need not be tangible. Rather, in order to establish the corpus delicti of the crime of driving while intoxicated, the Commonwealth need only show that someone operated a motor vehicle while under the influence of alcohol. Id.

In the case sub judice, Officer Pécora testified that he found appellant lying on the side of the roadway next to his pickup truck. No one else was near the scene where appellant was found. Officer Pécora then testified that appellant smelled of alcohol and seemed highly intoxicated. This evidence, like that in DeLeon, is consistent with the fact that someone operated a motor vehicle while intoxicated. Only after this evidence was presented did the Commonwealth offer appellant’s statement that he had been drinking and driving. We can therefore afford appellant no relief on this claim.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3731(a)(4). Although appellant was also charged with one count of driving under the influence of alcohol pursuant to subsection (a)(1) of section 3731, the jury acquitted him of this count.

      . Indeed, the Supreme Court’s pronouncements in Jarman and Modaffare were not handed down until almost one year after trial in this matter.

      . Appellant testified at trial that he had his last drink at approximately 12:30 that morning and began to drive home. He stated that during his drive he became dizzy, pulled off the road and got out of the truck. Although appellant’s testimony is uncontradicted, the jury did not believe this evidence, as was its sole right to do. Commonwealth v. Griscavage, supra. If one were to give credence to appellant's claim that he was lying on the berm of the road for approximately four and one half hours, it must be assumed that given his excessive BAC and the severe cold weather experienced that night, he would have been transported away in a hearse, rather than in a patrol car.


author: POPOVICH, Judge:

text:
    620 A.2d 529
    Susan M. CLINGER, Appellant, v. Patricia TILLEY, Individually and T/A Merele Norman Cosmetic Studio and Philinda Booth, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed Feb. 23, 1993.

      Robin S. Martin, Milton, for appellant.
    Gary Weber, Williamsport, for appellees.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Lycoming County Court of Common Pleas dismissing the appellant’s petition to reinstate a complaint. We affirm.

We adopt the trial court’s statement of the facts of this case:

On 10 December 1983, plaintiff Susan M. Clinger attended a make-up demonstration at the Merle Norman Cosmetic Studio. In the course of the demonstration, she sustained an eye injury, allegedly caused by defendant Patricia Tilley’s negligence. On 13 November 1985, plaintiffs counsel, H. William Koch, a member of the firm Koch, Foust & Martin, filed a complaint in the Lycoming County Court of Common Pleas. During the one-year period following the commencement of the suit, the defendants filed and served a set of interrogatories, and took two depositions. The plaintiff initiated no discovery. The docket reflects no further action from 19 November 1986 until 27 September 1991. On 29 May 1990, Attorney Koch died. Plaintiffs current counsel, Robin S. Martin, was assigned this case in September 1990. On 27 September 1991, Mr. Martin forwarded a 10-page demand letter to defendant’s counsel. On 8 October 1991, Mr. Martin was informed by defendant’s counsel that the case had been terminated due to inactivity, pursuant to Pa.R.J.A. Rule 1901. Plaintiff then filed a petition to reinstate, and a hearing was held on 7 January 1992, after which this court issued an order dismissing the petition.

Trial Court Opinion, dated April 3, 1992, at 1-2.

Ms. Clinger appeals from the order dismissing her petition to reinstate a complaint and raises the following issues:

I. Whether the lower court improperly terminated [appellant’s] case?
II. Whether the lower court erred in dismissing the [appellant’s] petition for reinstatement of a complaint?

In reviewing an order denying a petition to reactivate a complaint, we are limited to determining whether the trial court committed an abuse of discretion or an error of law. Martin v. Grandview Hospital, 373 Pa.Super. 369, 372, 541 A.2d 361, 362 (1988). A matter that has been inactive for an unreasonable period of time may be terminated by a trial court pursuant to Pa.R.J.A. Rule 1901(a). Prior to entering an order of termination of an inactive case, the court must give notice to each party in person, by mail, or by publication. Pa.R.J.A. Rule 1901(c) (emphasis added). Rule 1901 further provides that each court of common pleas is responsible for implementing the policy of terminating inactive cases through its own local rules. Pursuant to that rule, Lycoming County adopted its Rule L903, which provides the following:

In January of each year the prothonotary shall prepare a list of all civil cases which have not been terminated by final judgment or decision and wherein the docket shows no activity during the two years immediately prior to the date of the preparation of the list. The cases shall be identified on the list as to term and number, a complete caption and the names of counsel of record. This list shall be published once in the Lycoming Reporter no later than the third Friday of March with a statement at the beginning of the list that counsel or any of the parties shall have thirty (30) days from the date of publication within which to file opposition to the proposed termination of the case and that at a specified time and place the list will be called by the court, and if no good cause is shown why the matter should be continued, the court will mark such case terminated of record "with prejudice.

The above procedure was followed in this case, and notice of termination of the case for inactivity was published in the Lycoming County Reporter on March 10, 1989. On April 7, 1989, the list of cases to be terminated was called in open court, and the court signed an order directing the prothonotary to mark the case “terminated with prejudice.” The order was filed by the prothonotary on April 13, 1989. The appellant contends that because the order was signed on April 7, 1989, less than thirty days (30) days notice was given before the case was terminated and the order, therefore, violated Pa.R.J.A. Rule 1901 and Lycoming County Rule L903.

This court has stated that the date an order is entered is the date on which- the order is filed with the prothonotary. Vanleer v. Lerner, 384 Pa.Super. 558, 559-61, 559 A.2d 577, 578 (1989).

Clearly, the appellant’s case was not dismissed until April 13, 1989, when the prothonotary filed the order to terminate. Therefore, the trial court did not violate the required 30-day waiting period.

The appellant contends that notice should be mailed to each party prior to termination of a case rather than publishing notice in a legal journal. Although publication of the termination notice in a legal journal is consistent with Pa. R.J.A. Rule 1901, the appellant relies on the “Note” to Pa. R.J.A. Rule 1901 which states that “in those cases where it is unduly burdensome to research the captions, parties and mailing addresses of cases that have been inactive for two years or more, the moribund matters may be terminated by the adoption and publication of a general refiling requirement, without service of individual notice.” The appellant asserts her personal opinion that “it would not be unduly burdensome to mail some form of notice of termination to counsel of record, particularly when the counsel of record does not receive or review the local legal journal.” Appellant’s brief at 13.

The trial court noted in its opinion that at the time that the appellant’s case was dismissed, the inactive case list published in the Lycoming County Reporter contained 310 cases, and that for the five years prior to the termination of appellant’s case, the number of cases on the Lycoming County purge list averaged 300. Trial Court Opinion, dated April 3, 1992, at 4. Lycoming County established its Rule L903 as an appropriate way to handle the number of cases being terminated each year. Lycoming County’s Rule L903 is consistent with Pa. R.J.A. Rule 1901, and the trial court appropriately dismissed this case pursuant to state and county rules.

In an analogous case, an attorney, who did not appear for his client’s trial, claimed that he did not have actual notice of the trial date. Ttmar, Inc. v. Sulka, 402 Pa.Super. 319, 586 A.2d 1372 (1991). The trial was held in Allegheny County, and the case was listed for trial in the Pittsburgh Legal Journal pursuant to the Allegheny County local rules. The attorney argued that he did not have actual notice of the trial because he did not read the Pittsburgh Legal Journal. In rejecting his argument, this court stated:

If counsel chooses to accept a case and practice in a particular forum, then he must master notice requirements of local rules and procedures of that forum. This is not a case where notice could be posted on a tree to bind all interested parties. Counsel attacks the very process which every responsible member of the Bar practicing in Allegheny County is bound to follow. The Pittsburgh Legal Journal is the official court publication of Allegheny County as authorized by the local rules of court. Appellant’s counsel, choosing to practice in the forum, was duty bound to identify this rule ... Counsel is under a high duty of care to learn and familiarize himself with the local rules of all forums in which he chooses to practice law and to read the Pittsburgh Legal Journal for notice of the date and time of any Allegheny County trials with which he is concerned. Failing to do so does not excuse counsel.

Id. at 321-22, 586 A.2d at 1373-74.

In the present case, counsel had notification of the termination of his client’s case as required by the Pa.R.J.A. Rule 1901 and L903, and his failure to read the Lycoming County Reporter does not excuse the appellant.

The appellant argues further that Rule 126 of the Pennsylvania Rules of Civil Procedure requires that we consider the fairness of Lycoming County’s Rule L903 and that we should excuse the procedural error made by the appellant. Rule 126 provides that procedural rules are to be liberally construed to secure the just, speedy and inexpensive determination of actions, and that courts may disregard procedural defects or errors that do not affect the substantive rights of parties (emphasis added).

Instantly, if we were to disregard the procedural error made by the appellant and reverse the decision of the lower court, the substantive rights of the appellee would be affected because the appellee would be prejudiced. While our Supreme Court in Penn Piping, Inc. v. INA, 529 Pa. 350, 356-57, 603 A.2d 1006, 1009 (1992), determined the standards by which a court may properly enter a judgment of non pros, the Court’s discussion of prejudicial delay is relevant to the present case. The Pennsylvania Supreme Court ruled in Penn Piping, that in cases involving a delay for two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. The Pennsylvania Supreme Court explained that if a plaintiff has delayed an inordinate time to pursue her action, a defendant may have difficulty defending because of the lapse of time. Id. at 354-55, 603 A.2d at 1008. Because the delay in this case is presumed to be prejudicial, utilizing Rule 126 to reverse the trial court’s decision would not be appropriate.

According to Pa.R.J.A. Rule 1901(c)(2), a case that has been terminated because of inactivity may be reinstated “for good cause shown.” The three requirements for showing good cause are as follows: (1) the petition for reactivation was timely filed; (2) plaintiff has a reasonable excuse for inactivity; and (3) plaintiff alleges the existence of a meritorious cause of action. Martin v. Grandview Hospital, 373 Pa.Super. at 373, 541 A.2d at 363.

The appellant claims that her petition for reactivation was timely filed because it was filed only eight days after appellant’s attorney discovered that the case had been terminated. However, the petition was filed two and a half (2j() years after the case was dismissed. As stated above, although appellant’s attorney may not have read the notice of termination in the Lycoming County Reporter, the appellant received legal notice on March 10, 1989. Therefore, the appellant’s motion was not timely.

The second element of the good cause test requires the appellant to establish a reasonable excuse for the inactivity. The appellant asserts that the inactivity should be excused because the appellant’s initial counsel did not have notice of the case termination, and counsel died on May 29, 1990. We have already established that sufficient notice of dismissal of appellant’s case was provided by the trial court. We also reject the appellant’s argument that the demise of her original counsel excuses the inactivity with the case. The action was dismissed a year before appellant’s attorney died, and his firm did not take any action on the case until a year after his death. The appellant claims that action was not taken sooner because her eye condition had not stabilized. However, as the trial court correctly reasoned, this allegation was not supported by the records, which show that most of the appellant’s medical treatment occurred in 1984. N.T., January 7, 1992, at 14-19; Trial Court Opinion, dated April 3, 1992, at 7. The appellant has failed to show that there was a reasonable excuse for her inactivity in this case.

A complaint which has been terminated can be reactivated upon a showing of good cause. Because the appellant was unable to satisfy the requirements of the good cause standard, we find that the petition for reinstatement of the complaint was properly dismissed. We conclude that the trial court properly terminated appellant’s action, and that the trial court did not abuse its discretion when it dismissed the appellant’s petition for reinstatement of a complaint.

Order affirmed.


author: KELLY, Judge:

text:
    620 A.2d 1143
    COMMONWEALTH of Pennsylvania v. Neil GILLESPIE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed Jan. 6, 1993.
    Reargument Denied March 12, 1993.

      Bradley S. Bridge, Asst. Public Defender, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether trial counsel’s failure to interview and present character witnesses, referred to him by his client, constitutes ineffective assistance of counsel. We conclude that the principles of Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992), are applicable to this case; therefore, counsel failed to represent his client competently. Accordingly, we reverse and remand for a new trial.

This case abounds with conflicting testimony about the relationship among appellant, the complainant and a woman named Lorraine. The trial court determined that appellant was not willing to accept the fact that Lorraine was not interested in dating him. The true nature of the relationship between Lorraine and appellant is unclear, as Lorraine testified that she never dated appellant (N.T. Oct. 25, 1991 at 50), yet Lorraine’s mother testified that her daughter and appellant had dated in the past. (Id. at 59). Appellant contends that the relationship resulted in a wedding engagement. (Id. at 71). The complainant was Lorraine’s current boyfriend.

The trial court found that appellant had engaged in stalking behavior which consisted of vandalizing Lorraine’s car, making unsolicited phone calls to Lorraine and the complainant and provoking personal confrontation between the parties. The trial court determined that appellant had convinced himself that he was engaged to marry Lorraine, and that she was being beaten by the complainant. (Trial Court Opinion, May 21, 1991, at 1-2).

On the evening of March 19, 1991, appellant knocked on the back door of complainant’s place of business. The trial court found that appellant sprayed the complainant in the face with mace when the complainant stepped into the alley to see who had knocked on the door. The testimony regarding this incident was conflicting, but the trial court found the complainant’s version to be the more credible and convicted appellant of simple assault. There were no other fact witnesses to the confrontation.

Before sentencing, appellant retained new counsel and in post-trial motions, attempted to establish that trial counsel was ineffective for failing to interview and present all of the character witnesses referred by appellant. This post-trial motion, inter alia, was denied by the trial court. This timely appeal followed.

In his quest for a new trial, appellant raises only one issue. He contends that trial counsel rendered ineffective assistance. Specifically, appellant contends that his attorney was ineffective in failing to interview and/or call the character witnesses, a list of which appellant had supplied him before trial.

It is well-settled that the burden of establishing a claim of ineffective assistance of counsel rests upon the appellant, as counsel’s stewardship is presumed to be effective. We apply the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), measuring the effectiveness of counsel as described there:

Our task ... encompasses both an independent review of the record,.... and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives____ We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

Id. at 604-05, 235 A.2d at 352-53. For relief to be granted, appellant must demonstrate that counsel’s ineffectiveness worked to his prejudice. The Maroney Court continued:

Since our test requires that we examine the approach employed by trial counsel in light of the available alternatives, a finding of ineffectiveness could never be made unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized.

Id. at 605 n. 8, 235 A.2d at 353 n. 8 (emphasis added). See also Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988); Kitrell v. Dakota, 373 Pa.Super. 66, 540 A.2d 301 (1988).

Thus, our standard when reviewing a claim of ineffective assistance of counsel is whether appellant established that: (1) by act or omission counsel was arguably ineffective; (2) counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and (3) appellant was prejudiced by the act or omission and, but for that act or omission, there was a reasonable probability that the result would have been different. Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The Petras court held that in order for a defendant to obtain relief due to trial counsel’s ineffectiveness exemplified by counsel’s failure to interview and/or present a defense witness, he must establish that:

1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. See Commonwealth v. Griffin, 357 Pa.Super. 308, 319, 515 A.2d 1382, 1387-88 (1986); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979).

Id. 368 Pa.Super. at 377, 534 A.2d at 485.

It is well-settled that where there are only two direct witnesses of a particular incident, as in the instant case, the complainant and the appellant, the credibility of those witnesses is of the utmost importance, and character evidence is vital to the jury’s determination of credibility. Commonwealth v. Weiss, 530 Pa. 1, 6, 606 A.2d 439, 442 (1992). Evidence of good reputation is, therefore, substantive, not simply “make weight, thrown in to assist in the production of the result.” Commonwealth v. Neely, 522 Pa. 236, 241, 561 A.2d 1, 3 (1989), quoting Commonwealth v. Cleary, 135 Pa. 64, 82, 19 A. 1017, 1019 (1890). “Evidence of good character ... may of itself, by the creation of a reasonable doubt, produce an acquittal.” Id. at 82-83, 19 A. at 1018. Testimony at the post-trial hearing reveals a stipulation among the parties that the witnesses were available and would have been willing to testify to appellant’s good, peace-loving character. Appellant’s claim, therefore, is not without merit.

Next, we must examine the record to determine whether trial counsel had a reasonable basis for failing to present character witnesses at appellant’s trial. Counsel testified at the post-trial hearing that he had been informed of the existence of the witnesses. In fact, he stated that, prior to trial, appellant had given him a list of names and phone numbers of potential character witnesses. Counsel explained that he failed to contact the potential character witnesses because he feared that a piece of “uncharged misconduct,” on the nature of which he did not elaborate, might have come out at trial if he opened the door on the issue of character. (N.T. March 18, 1992 at 20-21). Clearly, this decision was not a tactical one made after thoroughly investigating and weighing all of the alternatives. Trial counsel did not base his decision on information he discovered after interviewing the witnesses, because he never contacted them. We find that counsel’s decision neither to present nor even to contact and interview the character witnesses had no objectively reasonable basis designed to effectuate appellant’s interest.

Finally, we look to see if appellant was prejudiced by counsel’s ineffectiveness, in that the alternative not chosen by counsel offered a substantially greater chance of success than the tactic chosen, focusing our attention on his overall trial strategy. To reiterate, the Weiss Court stated that character evidence is vital to the jury’s determination of credibility, and that by creating a reasonable doubt, that evidence may produce acquittal. Thus, the lack of character evidence undoubtedly prejudiced appellant, and the ineffective assistance of appellant’s trial counsel undermined the fairness of the proceeding.

In conclusion, we hold that appellant’s claim is not without merit, there was no reasonable basis for trial counsel’s inaction, and appellant was prejudiced as a result of the quality of trial counsel’s representation. Therefore, we must reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.

      . Appellant presented six other issues on post-trial motions. Trial court found that these issues were without merit.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    620 A.2d 1146
    CONSTITUTION BANK v. Robert P. OLSON and Edward C. Rorer & Co., Inc. and Paine Webber Incorporated and Merrill Lynch, Pierce, Fenner & Smith, Inc. Appeal of Robert P. OLSON. CONSTITUTION BANK v. Robert P. OLSON and Edward C. Rorer & Co., Inc. and Paine Webber Incorporated and Merrill Lynch, Pierce, Fenner & Smith, Inc. Appeal of Robert P. OLSON & Elizabeth Q. Olson.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1992.
    Filed Jan. 8, 1993.
    Reargument Denied March 18, 1993.

      Brian P. Flaherty, Philadelphia, for appellants.
    Kathleen Kernaghan, Ridley Park, for Constitution Bank, appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

We are asked to review the orders of the Court of Common Pleas of Philadelphia County denying a petition to intervene and petition to dissolve an attachment by Elizabeth Q. Olson and Robert P. Olson, respectively. We reverse in part.

The record discloses that on May 24, 1991, the plaintiff, Constitution Bank, filed a complaint and confessed judgment against the defendant, Robert P. Olson, on his guarantee of a loan to Capital Management L.P. in the amount of $251,564.37.

In aid of execution, the plaintiff took Mr. Olson’s deposition and learned that he had two accounts with Rorer & Co.: one was co-owned with his wife, Elizabeth Q. Olson, and the second was an individual retirement account (IRA). Olson also disclosed that he and his wife were co-owners of a joint account with Merrill Lynch, Pierce, Fenner & Smith, Inc.

The plaintiff then filed “Writs of Attachment” and “Interrogatories In Attachment” which were answered by Rorer and Merrill Lynch and disclosed that the account with Rorer was designated: “Robert P. Olson Elizabeth Q. Olson JTWROS” and held $159,516.72; and the IRA account was in Mr. Olson’s name only and contained $40,995.68. Rorer also indicated that all cash and securities in the Olson accounts were in the custody of Paine Webber, Inc. In response to interrogatories, Paine Webber acknowledged that the Olsons had various accounts with it, one being “[a] joint account entitled Robert P. Olson & Elizabeth Q. Olson, J.T.W.R.O.S.”

Likewise, Merrill Lynch confirmed in its answers to plaintiffs interrogatories that the defendant maintained a cash management account co-owned with his wife and captioned: “JTWROS” and valued at $20,545.43.

Thereafter, the plaintiff filed praecipes for entry of judgment against all of the garnishees for the full amounts held lor Robert P. and Elizabeth Q. Olson. Mr. Olson responded with the presentment of a Petition to Dissolve Attachment & Request for Stay of Proceedings, the result of which was an order of court staying all execution proceedings and/or the enforcement of the confessed judgment.

On October 24, 1991, the plaintiff filed an “informal response” asserting that a presumption exists that property held by husband and wife, unless otherwise designated, is a tenancy by the entireties. However, the plaintiff urged that the “presumption” had been “overcome” with the Olsons’ electing to title their brokerage accounts as joint tenants with right of survivorship (JTWROS), and, as such, “they c[ould] not now seek to insulate these accounts from Mr. Olson’s lawful creditors”. Therefore, it asked that the stay be lifted.

Without any response by the Olsons, the court entered an order lifting the “stay” and the Petition to Dissolve Attachment was denied. On or about November 12,1991, Mr. Olson filed a “Petition to Strike and/or Open Judgment, and Request for Stay of Proceedings”, wherein it was alleged, as herein relevant, that the judgment against the garnishees be stricken because the accounts were entireties property and immune from execution. In the alternative, Olson contended that only one-half of the joint account funds were subject to attached since suit was instituted against Mr. Olson only. He sought a stay to avoid the harm that would be suffered if the entireties property were released claiming that “it may become unrecoverable.” RR. 48a.

In a Memorandum of Law in support of the Petition, Olson alleged the accounts were entireties property “irrespective of whether the deposits [we]re payable to [them as] husband and wife or to husband or wife or [wa]s denominated a joint account or joint tenancy.” And, “[a]t a minimum, the judgment should be opened and plaintiff should be required to demonstrate via clear and convincing evidence that the[y] intended to own the subject accounts] in a fashion other than as tenants by the entireties.” RR. 51a.

In a “Supplemental Submission” to buttress the Petition, Olson asserted that, even assuming arguendo the accounts were not held by the entireties, under no circumstances did the record provide any basis for entering judgment for the entire amount held by Paine Webber and Merrill Lynch.

Following argument from counsel on November 20, 1991, all execution was stayed, except that the plaintiff was authorized to proceed to execute in an amount up to one-half of the judgments against any of the three garnishees. On November 22, 1991, counsel for Mr. Olson filed a Petition to Intervene on behalf of Mrs. Olson on the ground that she was “being adversely affected by the determination and actions of the plaintiff in th[e] matter.” And, inasmuch as her “rights in the property [we]re being prejudiced[,] ... intervention [wa]s appropriate ... because the determination of the action m[ight] affect a legally enforceable interest of [her’s] in the accounts in question.” RR. 183a-184a. Thereafter, by order of court dated January 15, 1992, all orders previously entered were vacated and Mrs. Olson’s Petition to Intervene was denied.

Separate appeals having been perfected from the denial of the Petition to Dissolve Attachment and Petition to Intervene by Mr. and Mrs. Olson, respectively, the two were consolidated for review by this Court.

In advance of deciding the merits of Mrs. Olson’s Petition to Intervene, we deem it prudent to address Mr. Olson’s inquiry of whether the lower court erred in holding that assets held by husband and wife in joint names, followed by the letters “JTWROS”, were not entireties property.

We start with the proposition that “[t]here is a sharp difference between joint estates and those held by a husband and wife.” In re Holmes’ Estate, 414 Pa. 403, 200 A.2d 745, 747 (1964); Geist v. Robinson, 332 Pa. 44, 1 A.2d 153, 155 (1938). An intention to create the entirety is assumed from the deposit of an asset in both the names of a husband and wife, without more, and from the fact of a marital relationship. See Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164, 172 (1966); In re Holmes’ Estate, supra; In re Cribbs, 411 Pa. 242, 191 A.2d 379, 382 (1963); Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246, 249 (1963); In re Berkowitz’ Estate, 344 Pa. 481, 26 A.2d 296, 297 (1942); Geist, supra; Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11, 14 (1990); Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988); Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144, 1148 (1987), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988); Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401, 404-405 (1985).

Further, retention of a certificate, bank book or other evidence of ownership in real or personal property by one spouse, and his/her retention of the same without delivery to the other spouse, is sufficient to establish the property as entireties because the nature of the joint tenancy is peculiar to the husband and wife relationship and obviates the need to have delivery occur to the other non-possessing spouse to create the estate. In re Holmes’ Estate, supra. Stated differently, “an estate by the entirety is a form of co-ownership in real and personal property held by a husband and wife with a right of survivorship. Its essential characteristic is that each spouse is seized per tout et non per my, i.e., of the whole or the entirety and not of a share, moiety, or divisible part.” In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132, 133 (1945) (Citations omitted); Wakefield v. Wakefield, 149 Pa.Super. 9, 25 A.2d 841, 842 (1942).

The case law appears established in that the type of ownership which is created in property when a husband and wife are involved, regardless of how the relationship is denominated and in the absence of clear and convincing evidence to the contrary, is as tenants by the entireties.

In Holmes’ Estate, supra, ownership of corporate stocks was in question, all of which were issued in the name of “W.W. Holmes and/or Helen E. Holmes”. Admittedly, the names on the certificates were those of the decedent and his wife.

During the decedent’s lifetime, the certificates were surrendered to the corporation without the wife ever having seen or handled them. New certificates were issued in the names of the decedent and two nephews. Upon the decedent’s death, his administrator listed the stock certificates as assets of the estate. The wife and nephews each filed exceptions which were denied. The wife alone filed an appeal from the decree.

Our Supreme Court distinguished the principles of law which surface when dealing with entireties property and a gift inter vivos to someone other than a spouse. In the latter circumstance, actual or constructive delivery of the property had to be established by clear, direct, precise and convincing evidence. However, in a husband and wife context, the “gift [wa]s presumed by reason of the nature of the joint tenancy which [wa]s peculiar to the husband and wife relationship”, and delivery to the husband was considered delivery to both spouses. Also, the Court in Holmes’ Estate wrote:

Where property or an account is placed in the names of a husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of the husband. The placing of the property in both names, without more, creates an estate by the entire-ties. It is their actual marital status and not necessarily the words stated or omitted in the instrument that determines their right to take as tenants by the entireties [.] In order to overcome the presumption that an estate by the entireties exists and that a complete gift ensued therefrom, there must be clear and convincing evidence to the contrary. Even where a husband places the property in both names without his wife’s knowledge or consent, a valid gift occurs[.] Likewise, if a husband acquires property with his own funds, and places it in the names of himself and wife, this constitutes a gift and an estate by the entireties, even though he exclusively receives the income therefrom during his lifetime[.]
The same principles apply whether real estate, personal property or stocks and securities are involved.

414 Pa. at 405, 200 A.2d at 747 (Citations omitted; emphasis added).

To the same effect, the Court in Brose’s Estate, 416 Pa. 386, 206 A.2d 301 (1965), held that language utilized in ten bank accounts in the name of the decedent and his wife clearly created a tenancy by the entireties: Some of the contracts establishing the accounts were well-drawn and entitled “Nicholas or Irma”, or “Nicholas and Irma”, thus a tenancy by entireties did exist. Others were inartfully drawn and did not reflect the husband and wife relationship, while some listed the names of “Nicholas” and “Irma” but did not connect them with a conjunction or a disjunctive; others denominated the relationship as a “joint tenancy”, and yet another merely read: “Payable to either or to the survivor”.

Lastly, most of the contracts recited: “All deposits made therein shall be owned by us as tenants by the entireties with the right of survivorship”. Several were opened as: “A joint account of husband and wife, and were made payable to either of us or the survivor.”

Nonetheless, despite the actual and technical differences in the various deposits, each of the accounts was held by the Court to have “created ... a tenancy by the entireties.” In doing so, the Court elaborated:

A deposit in a bank account or in a checking account or in a savings account, which is opened or registered in the name of a husband and wife, or of a husband or wife, or of two persons who are husband and wife although not so denominated, creates a tenancy by the entireties, irrespective of whether the money deposited is payable to husband and wife or to husband or wife, or is denominated a joint account or a joint tenancy.

416 Pa. at 389 & n. 6, 206 A.2d at 304 & n. 6 (Emphasis added in part). Accord Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763, 765 (1968).

The decisions are unequivocal that the legal unity of time, title, interest, possession and marriage create a tenancy by the entireties, whereas the presence of time, title, interest and possession at the moment ownership of property is created establish a joint tenancy, with a right of survivorship where so indicated. Id.

When we align the facts at bar with the applicable law, we find that Mr. Olson opened accounts with Paine Webber and Merrill Lynch under the legend: “Robert P. Olson & Elizabeth Q. Olson, J.T.W.R.O.S.” At the moment Olson opened the accounts, he was married to the individual named as a co-owner of the funds and this coalesced with the legal unities to establish a tenancy by the entireties. Cf. In re Holmes’ Estate, supra, 414 Pa. at 403, 200 A.2d at 745 (“It is their [husband and wife] actual marital status and not necessarily the words stated or omitted in the instrument that determines their right to take as tenants by the entireties.”); In re Gallagher’s Estate, supra, 352 Pa. at 477, 43 A.2d at 133 (“An estate by the entirety is a form of co-ownership in real and personal property held by a husband and wife with right of survivorship.”); Frederick v. Southwick, 165 Pa.Super. 78, 67 A.2d 802, 805 (1949) (“A tenancy by the entirety * * * is essentially a form of joint tenancy, modified by the common-law theory that husband and wife are one person.”).

Looking at the trial court’s conclusion that Mr. Olson created other than a tenancy by entireties in accounts with Paine Webber and Merrill Lynch, we learn the basis for its determination to consist of the following:

The instant accounts here do not enjoy the presumption of an entireties estate because the initials JTWROS indicate an intention not to hold the accounts in the entireties. Without the words husband and wife on the account, no presumption of entireties can exist.
‡ ‡ ‡ ‡ »*
At the very least, Mr. Olson, who opened the accounts, should have requested that they be marked as “husband and wife” to indicate some presumption that an entireties estate was intended.

Trial Court Opinion at 3 (Emphasis added). This statement of the law is erroneous and at odds with a legion of cases which hold to the contrary. See, e.g., In re Holmes’ Estate, supra; In re Cribbs, supra; Brenner, supra; Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749, 751 (1951); Berkowitz’ Estate, supra; Geist, supra.

Thus, inasmuch as the trial court’s conclusion of law, which is merely an inference drawn from the facts (or, in this case, the absence thereof), we need not give credence to such a conclusion where it is not supported by adequate evidence. Compare Ungate v. Passalacqua, 418 Pa.Super. 12, 613 A.2d 6 (1992); Estate of Matson, 374 Pa.Super. 61, 542 A.2d 147 (1988), and contrast Pregrad v. Pregrad, 367 Pa. 177, 80 A.2d 58, 59 (1951).

Next, we need to decide whether the presumption that an estate by entireties was created by Mr. Olson has been rebutted by “clear and convincing” evidence. In re Holmes’ Estate, supra. We think not.

The strongest evidence recited by both the trial court and the appellee to evidence Olson’s “intention” to create ownership other than as tenants by the entireties is the acronym “JTWROS” succeeding his name and that of his wife on the accounts opened with Paine Webber and Merrill Lynch.

We find such proof neutralized by the language recited in Holmes’ Estate, supra (that the marital status and not the terms appearing in or omitted from the instrument-creating document is determinative of whether a tenancy by entireties exists) and Brose’s Estate, supra (property registered in the name of two persons who are husband and wife creates a tenancy by the entireties “irrespective” of whether it is “denominated a joint account or a joint tenancy”), the language of the latter being cited with approval in the 1968 decision of our Supreme Court in Cohen, supra.

As an aside, we would observe that Mr. Olson sets forth in his Petition For Consideration of his Petition To Dissolve Attachment And Request For Stay Of Proceedings that his “intention” at all times was to create an estate whereby his wife would “own the accounts ... jointly [with him] as a husband and wife ... as he held all of his joint property with his wife, namely in all respects with his wife, as husband and wife, entitled to all the benefits thereof under Pennsylvania law.” RR. 87a-88a. He also alleged that this “intention” was communicated to the representatives of Rorer and Merrill Lynch when the accounts were opened, with the result that accounts in his name and that of his wife with the “JTWROS” appendaged thereto were established. Id.

We conclude that there was sufficient evidence from which the court below could have determined that the “intention” of Mr. Olson was to create a tenancy by the entireties, and, it sufficiently appearing to be Mr. Olson’s objective to do so, it should have been given effect. Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749, 752 (1951). No clear and convincing evidence was presented to rebut it. In re Holmes’ Estate, supra.

As the accounts, from their inception, were jointly established by the husband for himself and his wife, the creditor/Constitution Bank of the guarantor/husband has no present interest in such estates by the entireties. Should the wife survive the husband she will become the absolute owner of the accounts, in which the creditor will have no interest. On the other hand, if the husband survives the wife, he will become the owner of the property by survivorship, and it will be subject to all of his debts as any other property or estate of his would be. United States National Bank of Johnstown v. Penrod, 354 Pa. 170, 47 A.2d 249 (1946); see generally In re Estate of Maljovec, 412 Pa.Super. 80, 602 A.2d 1317, 1319-21 (1991). To the extent the trial court’s order permits Constitution Bank to attach and execute against accounts held by Mr. and Mrs. Olson as “JTWROS”, the order is reversed; those accounts in the name of Mr. Olson only are subject to attachment and execution to satisfy his guarantor status with Constitution Bank.

Order entered against Robert P. Olson (at No. 4437, May Term, 1991), as herein specified, is reversed; jurisdiction is not retained.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

I respectfully dissent from the majority’s decision which, in my opinion, adheres far too rigidly to the elements of tenancy by the entireties without considering the inequitable results in this case. Equity requires us to consider not only the rights and interests of Robert and Elizabeth Olson, but the rights and interests of Constitution Bank as well.

Tenancy by the entireties is a “unique form of co-ownership grounded in the common law concept that husband and wife were but one legal entity.” Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986). Essentially, a tenancy by the entireties is based on the uniqueness and unity of the marital relationship. Id. In this type of ownership, the husband and wife individually own the entire or whole property, and not one-half or a divisible portion. Id. Given such unity, neither spouse may deprive the other spouse of the use and/or enjoyment of the entireties property; and neither spouse may sever or encumber the property without the consent of the other spouse. Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 (1949). Similarly, property that is conveyed to or titled as “husband and wife” is considered entireties property, and is not subject to attachment by one of the spouse’s creditors. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966); see also Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982).

However, the enactment of the Married Women’s Property Acts questioned the continued need for tenancy by the entireties. Wallaesa v. Wallaesa, 174 Pa.Super. 192, 100 A.2d 149 (1953). Pursuant to these Acts, women no longer require legal protection because they have achieved the same property rights as their husbands. Pennsylvania, however, chooses to retain the common law concept of tenancy by the entireties, which views a husband and wife as a single entity. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Madden v. Gosztonyi, 331 Pa. 476, 200 A. 624 (1938). Therefore, in determining whether a tenancy by the entireties has been created, the intention of the husband and wife is controlling and will be given effect. Brown v. Brown, 330 Pa.Super. 324, 479 A.2d 573 (1984).

In the instant case, I find the majority’s strict adherence to the traditional attributes of tenancy by the entireties unwarranted. The finding of a tenancy by the entireties, under these circumstances, only serves to enable a party to avoid payment of a debt.

Moreover, the intent of the Olsons to not hold the accounts as entireties property is clear from the language on the accounts naming “Robert P. Olson and Elizabeth Q. Olson JTWROS.” In addition, the record indicates that Robert Olson had a thorough understanding of the effects of titling property as husband and wife. The fact that during his twenty years of marriage he has always knowingly held property jointly with his wife as tenants by the entireties, is indication that that Robert Olson understood the distinction between the various tenancies available to property owners.

The application of tenancy by the entireties to these accounts allows one spouse, or both spouses, individually, to protect their jointly held property. Such an outcome prevents the bank from collecting on a debt to which it is legally entitled. Tenancy by the entireties was never intended to work such an inequity. I, therefore, dissent from the majority’s analysis and result.

      . A petition seeking reconsideration was filed by Olson, but was never ruled upon. See RR. 132a. Of interest, however, is Mr. Olson’s assertion therein that:
      11....
      a. Mr. and Mrs. Olson have been married for 20 years and during that entire period of time have always held their joint assets, personal and real, as tenants by the entireties. Mr. and Mrs. Olson have always owned every parcel of real property during their marriage jointly. They have each from time to time held certain assets individually, but when that was intended, it was done in that fashion expressly.
      b. When the two accounts in question were opened, Mr. Olson, who was the person who dealt with the representations [sic ] of Rorer and Merrill Lynch at the time the accounts were opened, in no way elected to change the manner in which he and his wife had always owned all of their joint assets. In fact, Mr. Olson, who is not a lawyer, does not know the legal meaning of the initials J.T.W.R.O.S., or the phrases "tenancy by the entireties”, "joint tenancy with rights of survivorship,” or "tenants in common".
      c. At the time the accounts were opened he stated to the persons with whom he dealt that he wished to own the accounts with his wife, jointly, as a husband and wife. He understood that by so stating he would be owning them as he held all of his joint property with his wife, namely, in all respects with his wife, as husband and wife, entitled to all the benefits thereof under Pennsylvania law.
      12. Plaintiff acknowledges that there is a presumption that property held by husbands and wives is held by the entireties in Pennsylvania and that that presumption must be overcome by a showing made by the party seeking to challenge that tenancy by clear and convincing evidence to show that it was not intended to be held that way.
      13. Plaintiff has made absolutely no effort to show this other than demonstrating that the initials J.T.W.R.O.S. appear after the names of Mr. and Mrs. Olson in the titles of the accounts.
      14. That does not constitute clear and convincing evidence that Mr. and Mrs. Olson made an election to change their practice adhered to throughout their entire marriage of holding their assets as tenants by the entireties.
      15. On that basis, we urge the Court to reconsider its Order of October 31, 1991, and we request that the Court vacate its Order of October 31 and direct that the parties proceed in accordance with Pennsylvania Rule of Civil Procedure 209 and Philadelphia Rule 209 to establish the necessary factual record to allow the Court to make inquiry into the relevant factual dispute here, namely, whether or not there is clear and convincing evidence to show the Court that Mr. and Mrs. Olson intended to hold these assets as other than tenants by the entireties, a presumption to which they are entitled under Pennsylvania law.
      16. Because there is a factual inquiry needed, the methods of resolving factual disputes set forth in the aforementioned Rules is the appropriate method and that should be permitted to work to allow the parties the due process accorded to them to resolve these issues. WHEREFORE, we respectfully request that the Court enter an Order vacating its decision of October 31, and request that the Court vacate its October 31, 1991 Order and direct plaintiff to file a response to the petition and that the parties proceed in accordance with Pennsylvania Rule 209 and Local Rule 209 and applicable other rules so that the Court may have a full factual record developed upon which to base its decision in the matter.
      RR. 89a.

      . This November 20, 1991, order was issued by a judge other than the one who had heard the parties' prior petitions for relief. This change in judges was necessary because of the absence of the initial judge who had heard the matter and Mr. Olson’s counsel’s request to have the matter heard and disposed of, with a completion of the relief requested ruled upon when the original judge returned the following week. This was accomplished.

       or real estate which is recorded, or a bond or stock certificate which is registered in the name of two persons who are husband and wife.

      . Intention is the cardinal and controlling element in determining if a husband and wife shall take ownership of property by the entireties, and if such (i.e., by entireties) sufficiently appears, it will be given effect. See Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749, 752 (1951). We look to such elemental aspect since "[t]here is presently no legal interdiction which restrains the creation of an estate in a husband and wife other than that of tenants by the entireties.” Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246, 249 (1963).
      However, in creating an estate other than by entireties, the evidence necessary in doing so must overcome the presumption of entireties by clear and convincing evidence. In re Holmes’ Estate, 414 Pa. 403, 200 A.2d 745, 747 (1964).

      . The difference in title-ownership affects whether the property can be reached by the creditors of Mr. Olson, which would not occur in an entireties situation, but would avail creditors attachment and execution rights if the property were owned as joint tenants with rights of survivorship, and then only to the extent of the debtor's ownership interest and not the entire estate. See American Oil Co. v. Falconer, 136 Pa.Super. 598, 8 A.2d 418, 421 (1939). If such is the “intent” of the creator of an account, i.e., to create a joint tenancy or tenants in common, he/she must manifest their purpose in clear, precise and unequivocal terms to obviate the presumption of entireties and any doubt to the contrary.

      . Given our disposition in favor of Robert P. Olson, we need not respond to his wife’s (Elizabeth Q. Olson’s) challenge to the denial of her Petition to Intervene. The matter is rendered moot.

      . Act of May 23, 1887, P.L. 170, and Act of June 8, 1893, P.L. 344 Sec. 1 (48 P.S. § 31). The Act of 1893 permitted married women to lease, sell, and own real estate, but required the consent and participation of their husbands in such transactions. The Act of 1957, however, equalized a married woman’s rights with the rights of a married man. A woman’s property rights were further enhanced in 1971 with the Equal Rights Amendment to the Pennsylvania Constitution. See Pa. Const., art. I, § 28.


author: CIRILLO, Judge:

text:
    620 A.2d 1154
    COMMONWEALTH CAPITAL FUNDING, INC. v. FRANKLIN SQUARE HOSPITAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed Feb. 19, 1993.

      Richard M. Beck, Philadelphia, for appellant.
    Daniel S. Bernheim, III, Philadelphia, for appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying Appellant Franklin Square Hospital’s (FSH) petition to strike/vacate or open foreign judgment. We affirm.

Great Western Funding, Inc. (Great Western) is a Texas corporation doing business in Texas. Great Western and the Hampton Hospital Group (HHG), as the agent for FSH, entered into' a joint venture which permitted investors to acquire, through Great Western, FSH receivables. Intended investors would purchase the receivables and in return receive their initial investment and a profit on the factored accounts, once sums owed to FSH were collected.

Appellee Commonwealth Capital Funding, Inc. (Capital) is a Texas corporation doing business in Texas. Capital was solicited by Great Western for the purpose of investment of factoring accounts receivable of FSH. Capital tendered $194,-000. 00 to FSH and received FSH receivables from Great Western. Capital never realized any of its alleged investment due on the receivables or a refund of its initial investment of $194,000.00.

Capital brought suit against FSH in Tarrant County, Texas. Pursuant to the Texas long-arm statute, Texas Civil Practice & Remedies Code § 17.042 (Vernon 1986), FSH was served with notice of the suit. FSH failed to appear or file an answer to Capital’s complaint. Capital obtained a default judgment in the amount of $200,644.26, which included Capital’s original investment and approximately $6,000.00 of prejudgment interest. FSH received notice of the judgment but failed to appeal or move to set aside the judgment. Judgment was entered and Capital then transferred the judgment to Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306 (1981) (the Act).

FSH filed a petition to strike/vacate or open the foreign judgment contending that it had insufficient contacts with the Texas forum and that the exercise of personal jurisdiction over FSH was contrary to Texas law. Following voluminous discovery between the parties, the trial court denied FSH’s petition. This timely appeal followed. Instantly, we must determine whether FSH’s activities in the Texas forum were sufficient to permit the Texas forum to assert personal jurisdiction over it. An affirmative answer to this question also resolves the issue of whether the trial court erred in enforcing the foreign judgment pursuant to section 4306 of the Act.

The constitutional mandate that each state give full faith and credit to judgments transferred from sister states is codified under the Act. The Act’s provisions permit a simplistic and systematic transfer of money judgments from one state’s court to another. See Tandy Computer Leasing v. DeMarco, 388 Pa.Super. 128, 564 A.2d 1299 (1989). In order for our courts to recognize the judgment as valid and enforceable, the sister state must have had proper jurisdiction over the defendant and afforded him or her due process of law. Instantly, a lack of personal jurisdiction over FSH or a lack of due process protection on the part of the Texas court would require that full faith and credit be denied and the judgment vacated. Everson v. Everson, 264 Pa.Super. 563, 400 A.2d 887 (1979), aff'd and order modified on oth. grds. 494 Pa. 348, 431 A.2d 889 (1981). Conversely, a transferred judgment may not be denied full faith and credit merely because a defendant has a valid defense to the action if it had been brought in Pennsylvania or because the judgment violates the policy or law of the forum where enforcement is sought. Everson, supra; Greate Bay Hotel v. Saltzman, 415 Pa.Super. 408, 609 A.2d 817 (1992).

While FSH’s arguments based on the lack of personal jurisdiction fall within the accepted parameters for a court to deny a foreign judgment full faith and credit, we find the facts presented here establish the necessary minimum contacts under Texas law for the Texas court to assert jurisdiction over FSH.

Wfiiere the forum state seeks to assert specific jurisdiction over a non-resident, as in the instant case, the due process clause of the fourteenth amendment of the United States Constitution is satisfied if the non-resident has “purposely directed” his or her activities at residents of the forum and the litigation arose out of those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528 (1985) (citations omitted). The question of whether the defendant has purposely directed his activities at residents of the forum is not whether or not it was foreseeable that the defendant’s activities would be injurious in the forum, but whether the defendant’s contacts with the forum state were such that he could reasonably anticipate being “haled” into court there. Id. at 474, 105 S.Ct. at 2183 (citation omitted). The question of whether FSH could reasonably have anticipated being “haled” into Texas court must be resolved by examining FSH’s contacts with the forum state. Id. (citation omitted).

The long-arm statute of Texas provides that service of process may be made on a non-resident who is “doing business” in Texas. § 17.042. A non-resident is defined as “doing business” in Texas if the non-resident enters into a contract with a Texas resident and either party is to perform any or all of the contract in Texas. Id. The statute’s broad language of “doing business” has been construed to reach to the limits of the due process clause of the fourteenth amendment of the federal constitution in permitting Texas courts to assert personal jurisdiction over non-residents. Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex.1990); see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413, 104 S.Ct. 1868, 1871, 80 L.Ed.2d 404 (1984) (citation omitted).

FSH was served pursuant to the long-arm statute and does not argue its amenability to service of process. However, FSH correctly maintains that its entering into a contract with a Texas resident, while in and of itself sufficient to permit service, is not conclusive of jurisdiction. Burger King, supra; Computer Synergy Corp. v. Business Systems Products, Inc., 582 S.W.2d 573 (Tex.Civ.App.1979). Accordingly, the Texas courts have held that once it is determined that a non-resident is “doing business” for purposes of service, the reach of the long-arm statute for purposes of jurisdiction must be guided under a due process analysis of “minimum contacts” and the “traditional notions of fair play and substantial justice.” Siskind v. Villa Foundation for Education, Inc., 624 S.W.2d 803 (Tex.Ct.App.1981), aff'd in part, rev’d in part on oth. grds., 642 S.W.2d 434 (Tex.1982); U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct 1235, 55 L.Ed.2d 763 (1978); see Helicopteros, 466 U.S. at 413 n. 7, 104 S.Ct. at 1871 n. 7.

The due process clause limits the power of a state to assert its jurisdiction over a non-resident defendant. Helicopteros, 466 U.S. at 413-14, 104 S.Ct. at 1871-72 (citation omitted). Jurisdiction over a non-resident is permissible when there exists “certain minimum contacts” between the defendant, the forum state, and the litigation. Id. at 414, 104 S.Ct. at 1872 (citations omitted). The minimum contacts analysis is not susceptible to any inflexible, unyielding or mechanical test or formula, rather the facts of each case must be balanced in determining whether jurisdiction is proper. Burger King, 471 U.S. at 478, 105 S.Ct. at 2185 (citation omitted). Random, fortuitous, or attenuated contacts between the forum and a defendant will not support the exercise of personal jurisdiction. Id. at 475, 105 S.Ct. at 2183 (citations omitted). Jurisdiction is only proper where the contacts with the forum state proximately result from actions of the defendant, himself, which serve to create a “substantial connection” with the forum state. Id. at 475, 105 S.Ct. at 2183 (citation omitted). Even a single act may be sufficient to confer jurisdiction in a forum. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Once the court decides that a non-resident has purposely established minimum contacts with the forum state, the court must next consider whether an assertion of jurisdiction by the forum comports with “fair play and substantial justice.” Burger King, 471 U.S. at 476, 105 S.Ct. at 2184 (citation omitted). Factors to be considered in making this determination are:

the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and the shared interest of the several States in furthering fundamental substantive social policies.

Id. at 477, 105 S.Ct. at 2184 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980)). Review of the law of Texas evidences a faithful adherence by the Texas courts to jurisdictional mandates of the Supreme Court recounted above. See Helicopte ros, 466 U.S. at 413 n. 7, 104 S.Ct. at 1871 n. 7. The Texas Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966) put forth the test of personal jurisdiction as follows:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state;
(2) the cause of action must arise from, or be connected with, such act or transaction; and
(3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

Id. at 342 (citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

While the fact that FSH entered into a contract with a resident of Texas is not, in and of itself, determinative that FSH purposely availed itself to the Texas forum, we find that the activities surrounding the execution of the contract are sufficient to establish minimum contacts with the forum.

If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot.... Instead, we have emphasized the need for a “highly realistic” approach that recognizes that a “contract” is “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” ... It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts with the forum.

Burger King, 471 U.S. at 478-79, 105 S.Ct. at 2185 (citations omitted) (emphasis in original). This analysis, known as the “contract-plus” rule was adopted by the Texas Supreme Court in Zac Smith & Co. v. Otis Elevator Company, Inc., 734 S.W.2d 662 (Tex.1987), cert. denied, 484 U.S. 1063, 108 S.Ct. 1022, 98 L.Ed.2d 986 (1988). In finding the existence of personal jurisdiction over the defendant the court there stated:

In a case such as the one before us, where the foreign defendant has had a single or few contacts with the forum by virtue of a contract, [i]t is those two factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts with the forum.

Id. at 665 (citation omitted) (emphasis added).

Instantly, the trial court found that FSH’s contacts with the Texas forum were such that FSH should have reasonably anticipated being haled into court there, that FSH purposely availed itself of the privilege of conducting business within the forum state and the benefits and protections of the forum state’s laws. The trial court concluded, therefore, that jurisdiction over FSH was fair and just. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); World-Wide, supra; Burger King, supra; International Shoe, supra. Upon review of the parties’ briefs, the record and Texas case law, we find no error on the part of the trial court in enforcing the judgment as Texas properly asserted personal jurisdiction over FSH.

FSH conducted numerous activities in the state of Texas. In November, 1990 FSH sent a representative, Dr. Edward Silverman, (Silverman) to Texas for the purpose of finding a purchaser of account receivables on a factoring basis. Silver-man met with representatives from Great Western for the sole purpose of ascertaining whether Great Western would purchase the accounts to assist in raising capital for FSH. At the time of Silverman’s visit FSH was known as Metropolitan Hospital (Hospital) and was seeking protection from its creditors under Chapter 11 bankruptcy. Hospital was under a management agreement with HHG. HHG was owned by Silverman. This relationship served as the catalyst for Silver-man’s solicitation of investment capital in FSH’s behalf.

Numerous and extensive negotiations followed. Silverman supplied voluminous financial documents which evidenced FSH’s financial status and future projections as well. Financial statements were also sent. More meetings between the parties took place at FSH in Philadelphia and representatives of Great Western reviewed FSH’s portfolio of receivables. Silverman then presented the option of a joint venture between the parties and executed a Letter of Intent whereby Great Western would fund HHG’s acquisition of Hospital’s assets. This would allow Hospital to emerge post-bankruptcy as a new non-profit entity under the name FSH.

The parties also executed documents which intended that Great Western would manage and receive a percentage of the accounts receivable that were processed and funded. FSH was to provide with every batch of receivables a written report describing the accounts and FSH was further required to tender to Great Western all money received for sold reeeivables and to report on all receipts taken in by FSH. It was also agreed that Great Western and HHG were to set up an additional entity to fund FSH’s future operation on an ongoing basis. The purchase and sales agreement further provided that Great Western would purchase the FSH receivables in the form of chattel paper and that Great Western would receive a security interest in the paper. These agreements also provided that Great Western be permitted to assign its rights of purchasing receivables to various investors who in return for capital would factor and purchase the receivables.

During negotiations and following execution of the documents the parties were in constant contact with each other by both telephone and fax, and Great Western monitored and verified all accounts and collections. At least one special bank account was set up in the name of “Hampton Hospital Group Great Western Funding Joint Venture” and a series of wire transfers between Texas and Pennsylvania were made. Similarly, numerous transfers of funds between Philadelphia banks and Texas also occurred. In all, several million dollars was transferred between 1990 and the commencement of the instant litigation. The vast majority of these funds were invested by Texas entities.

Following its assignment of receivables from Great Western and after wiring the funds to FSH, Capital made numerous attempts to obtain information regarding its forthcoming receivables and confirmation that a UCC financing statement had been filed. While awaiting verification from FSH, it was discovered by both Capital and Great Western that FSH had granted a security interest in its receivables to another lender to the exclusion of Great Western. After receiving no response, Capital filed the instant suit.

On the basis of these facts, we conclude that FSH had purposefully established numerous contacts with the Texas forum, both before and after the execution of the contract, such that an assertion of jurisdiction over FSH comports with due process, “fair play and substantial justice.” Burger King, supra. The record as developed in the trial court reveals not merely a single contract between a non-resident and a Texas resident, but a contract that established the intent to continue an ongoing business relationship with Great Western and numerous other Texas entities as investors. Chattel paper was sold into the stream of commerce for its sole entry into the Texas forum. The contract did not call for one sale under the contract but numerous and continuing sales on a regular basis.

As a result of the solicitation by Silverman and the transactions that followed between the parties, Great Western, Capital and other investors were induced to purchase millions of dollars of receivables. These funds were systematically and frequently transferred between Pennsylvania and Texas and vice versa. Various agreements were executed between Great Western and FSH in which Great Western would purchase as well as manage FSH’s receivables relying only upon local Texas investors. This joint venture permitted FSH’s predecessor to emerge from bankruptcy with a substantial cash flow and future stability as well.

We find that FSH clearly and purposely availed itself of the privilege of conducting business within the forum state and the benefits and protections of the forum state’s laws. Hanson, supra. FSH’s contacts with the Texas forum were such that FSH should have reasonably anticipated being haled into court there. Burger King, supra. As such, under the instant facts, jurisdiction over FSH was fair and just. World-Wide, supra; Burger King, supra; International Shoe, supra. Accordingly, we agree with the trial court that FSH’s activities were sufficient to establish those minimum contacts necessary for FSH to be subject to the personal jurisdiction of the Texas forum.

Order affirmed.

      . Great Western is in the business of purchasing hospital receivables and, through its investors, providing hospitals with immediate cash flow.

      . In its brief, FSH erroneously labels the question presented as whether the trial court erred in refusing to strike or open the foreign judgment. The Act only provides that a judgment may be reopened, vacated or stayed. 42 Pa.C.S.A. § 4306(b). Because a foreign judgment entered without jurisdiction is a nullity, thus void, it must be vacated and not opened, because to do otherwise would be to permit the trial court to proceed further in an action against a defendant over whom personal jurisdiction had not been obtained. Holden v. Holden, 374 Pa.Super. 184, 542 A.2d 557 (1988) (en banc) (plurality), allocatur denied, 520 Pa. 617, 554 A.2d 509 (1988) (Cirillo, P.J., concurring, with three judges joining concurrence). Likewise, a judgment may only be stricken when there appears a defect on the face of the record. Bittenbender v. SEPTA, 362 Pa.Super. 243, 523 A.2d 1173 (1987), allocatur denied, 517 Pa. 602, 536 A.2d 1327 (1987). Here, although FSH improperly captioned its petition, the trial court refused to strike or open the judgment. We, therefore, find no technical error regarding the propriety of the trial court’s order.

      . U.S. Const, art. IV, § 1 provides in relevant part:
      Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.
      Art. IV, § 1.

      . Both parties concede that although the question of personal jurisdiction over FSH in Texas is to be decided by a Pennsylvania court, we apply Texas law. Bartholomew Associates, Inc. v. Townhome, Inc., 270 Pa.Super. 95, 410 A.2d 1266 (1979).

      . We note that the parties have presented numerous decisions by the Texas courts regarding jurisdiction over a non-resident that have similarities with the instant case. As we noted above, Texas law controls the ultimate question of jurisdiction. Bartholomew, supra. However, as we also stated, there is no hard and fast "talismatic jurisdictional formula” and the facts of each case must be weighed in determining whether jurisdiction is proper. Burger King, supra.

      We note that while the federal circuit courts' interpretation of Texas law is persuasive in its analysis, we are not bound by this precedent.
      We are also cognizant of FSH’s argument concerning the choice of law provision in the contract. Such a provision is not determinative of personal jurisdiction.
      ... choice-of-law analysis—which focuses on all elements of a transaction, and not simply on the defendant’s conduct—is distinct from minimum contacts jurisdictional analysis—which focuses at the threshold solely on the defendant’s purposeful connection to the forum. ... such a provision standing alone would be insufficient to confer jurisdiction____

        Burger King, 471 U.S. at 481-82, 105 S.Ct. at 2187 (citation omitted) (emphasis in original).