author: SPAETH, Judge: CAVANAUGH, Judge,

text:
    446 A.2d 257
    PROVIDENT CREDIT CORPORATION, a Corporation, v. Charles Thomas YOUNG, Jr., Joan Young and Ethel B. Davis. Appeal of Ethel B. DAVIS.
    Superior Court of Pennsylvania.
    Argued June 13, 1980.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Denied Sept. 16, 1982.

      Theodore Clattenburg, Jr., Philadelphia, for appellant.
    Alan B. Liss, Philadelphia, for appellee.
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM and BROSKY, JJ.
   SPAETH, Judge:

This appeal is from an order denying a petition to open or strike a default judgment. Appellant does not argue that the lower court erred in refusing to strike the judgment, but she does argue that the court abused its discretion in refusing to open the judgment. We agree and therefore reverse.

-1-

In no sort of case is closer attention to the facts required than in a case arising on petition to open judgment. Here the facts may be found in appellant’s deposition, which was the only testimony, the petition and answer, and the docket entries.

Appellant is an unemployed widow with a 10th grade education. On December 20, 1971, at her brother’s request, she went to the Peter James Buick Agency in Ardmore so that she might serve as co-signer for an automobile her brother was interested in buying. Appellant drove separately in her own car because she was on her way to Washington to visit another brother, who was ill. She was in a hurry and did not have much time to spend at the agency. While her brother was out on the lot looking at automobiles, appellant was asked to sign some papers in blank. She was told that if her brother did not buy an automobile, the papers would be torn up. She understood that being a co-signer meant that if her brother did buy an automobile but then could not be found, she would be asked to find him, and that her availability to find her brother was why the person she was talking to was interested in the fact that she owned a house and did not move about the city.

Appellant signed the papers, in blank, and continued on her trip to Washington. She was not given copies of the papers she had signed, nor were they sent to her later. The papers included a motor vehicle installment sale contract, which named Peter James Buick as the seller and provided for assignment to appellee, and a judgment note and federal truth-in-lending disclosure statement, both of which named appellee as the lender, and neither of which gave any indication of having been executed in connection with the installment sale of an automobile.

Appellant’s brother fell behind in his payments almost immediately. On August 1, 1972, he and his wife were served with a complaint in assumpsit, and on August 25, a default judgment was taken against them. The complaint also named appellant as a party defendant, and on September 7, it was served on appellant by being left with an adult person—a baby-sitter—who was in charge of her residence, and on October 3, 26 days later, a default judgment was taken against her. The complaint made no reference to the fact that the judgment note that appellant had signed had been given in connection with the installment sale of an automobile. Damages were assessed at $4,100.90—the unpaid balance of the note—plus a collection charge of $738— 18% of the amount due, as provided for in the note—for a total of $4,838.90.

Appellant testified that she never received the complaint. She explained that at the time it was served—as shown by the sheriff’s return—she and her daughter, who lived with her, were at church. At some point the baby-sitter told appellant’s daughter that a man had come with papers for Charles and Joan Young—appellant’s brother and sister-in-law, whose names appear on the complaint ahead of appellant’s—and that she had refused to take them. The first appellant knew of any proceeding against her was when she received in the mail a card requesting her to call appellee. When she called she was told that her brother had failed to make his payments, and that because she had signed for the autombile they could go after her without making any effort to find him, and her home was going to be taken from her.

Appellant went to see a lawyer, Allan Getson, who had evidently previously represented her in some matter, but he said that he could not represent her because he was representing her brother in another case. Appellant immediately went to see another lawyer with offices in the same building, Cassandra Maxwell Birnie. Birnie evidently made inquiries on appellant’s behalf, determined the amount that would be necessary to bring her brother’s payments up-to-date, advised her to try to get her brother to pay that amount, and looked into the status of an attachment by appellee of the proceeds of a personal injury action brought by appellant’s brother. Birnie also told appellant that going to court to try to get the judgment against her opened would cost a great deal of money. Birnie did not refer appellant to Community Legal Services, nor explain that if she were found eligible for representation by Community Legal Services, she would be able to file a petition to open the judgment without incurring legal expenses that would be difficult or impossible for her to pay.

Twice during 1973 and once in 1974 appellant received notification that various amounts, totaling $2,140.98, had been paid to appellee on her brother’s behalf. She believed that two of these payments resulted from actions taken in her interest by Birnie, and that the 1974 payment, which was $1,261.92, was “going to be paid over with the provision that the house would be returned back to me.” N.T. 19. In both respects, appellant was mistaken. The payments had resulted from attachments filed by appellee, and by the time she received notice of the 1974 payment, her house had already been sold. Specifically, the sheriff had sold it on February 4,1974, on appellee’s writ of execution, for $800 to the attorney on the writ. The assignee of the sale, one Carl Inker, received the sheriff’s deed to appellant’s house on September 10,1974, but even before receiving his deed Inker had filed a complaint in ejectment, which was served on appellant sometime in August 1974.

After being served with the complaint in ejectment appellant tried to consult Birnie. When she was unsuccessful, she consulted a Lieutenant Kirby at the Naval Base, who gave her the name of another lawyer. When he proved to be on vacation, appellant was referred to Richard Carl Smulker. Smulker agreed to represent her but said she would first need to obtain her file from Birnie, in the course of doing which she learned that Birnie had died. It is not clear just what Smulker did on appellant’s behalf, but the record does include a letter from him to Inker’s lawyer proposing a repurchase agreement under which appellant would pay $75 a month toward the repurchase of her home. Appellant testified that she had told Smulker that she could not afford to pay more than $50 a month. Smulker told her that any attempt to open the judgment would cost a great deal of money, and that if she did not have the money, there was nothing he could do for her. Although he knew that appellant was of limited means—indeed there is a reference to her lack of means in the letter he wrote Inker’s lawyer—he did not suggest that she might be able to receive assistance from Community Legal Services in trying to get the judgment opened.

When it appeared that Smulker would be unable to help her further, appellant asked the Federal Housing Administration whether it could help her. It was a representative of the F.H.A. who finally advised appellant to seek help from Community Legal Services. C.L.S. began work on appellant’s case early in 1975, but before it got very far, appellant became marginally ineligible for its services because of an increase in her Social Security and Veterans Administration benefits. Her case was then referred to the Lawyers Reference Service, which tried unsuccessfully to refer the case to several lawyers in private practice. In August 1975 C.L.S. was specially reauthorized to represent appellant, and on September 8, 1975, the petition to open or strike the judgment was filed.

On October 15, 1975, appellant, in support of the petition, filed interrogatories directed to appellee. On February 26, 1976, appellee’s motion for a protective order was granted. On July 5, 1977, appellant filed a second set of interrogatories, and on September 16, her deposition was taken. On November 16, appellee’s motion for a protective order with respect to appellant’s second set of interrogatories was granted. On May 16,1978, the lower court, without a hearing and with only appellant’s deposition in the record, denied appellant’s petition.

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A petition to open a judgment by default is addressed to the equity side of the court:

In determining whether a judgment by default should be opened, we must ascertain whether there are present any equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his “day in court” and to have the cause decided upon the merits. In so doing, we act as a court of conscience. Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Superior Ct. 115, 123, 419 A.2d 688, 692 (1980), quoting Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971).

In an assumpsit case, in exercising its equitable powers the court must look to the promptness with which the petition to open was filed, the reason given for the default, and the merits of the defense asserted. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971). Because the decision whether to open a judgment is an equitable one, it depends on the particular facts of each case; there are no bright line tests, Quatrochi v. Gaiters, 251 Pa. Superior Ct. 115, 380 A.2d 404 (1977), and the cases are not easy to reconcile. Duffy v. Gerst, 286 Pa. Superior Ct. 523, 429 A.2d 645 (1981). Although the lower court’s decision will be upheld absent an abuse of discretion, both the Supreme Court and this court have not hesitated to find an abuse of discretion in a lower court’s refusal to grant a petition to open a judgment when we have found that the equities clearly favored opening the judgment. E.g., Queen City Electrical Supply Company, Inc. v. Soltis Electric Company, 491 Pa. 354, 421 A.2d 174 (1980); Raymond J. Brusco Funeral Home v. Sicilia, supra; Brooks v. Surman Dental Labs, Inc., 262 Pa. Superior Ct. 369, 396 A.2d 799 (1979); Toplovich v. Spitman, 239 Pa. Superior Ct. 327, 361 A.2d 425 (1976).

In the opinion filed in response to appellant’s appeal, the lower court found that appellant had not satisfactorily explained either the default or the delay in filing her petition to open. The court did not consider the merits of her defense to the action. We have concluded that the court’s findings are inconsistent with the clear equities of the case, and that in refusing to grant appellant’s petition to open, the court abused its discretion.

-a-

As we have noted, the judgment against appellant was entered only 26 days after service of the complaint. This court has repeatedly condemned snap judgments. E.g., Brooks v. Surman Denial Labs, Inc., supra; Silverman v. Polis, 230 Pa. Superior Ct. 366, 326 A.2d 452 (1974). The lower court, however, did not acknowledge that the judgment here was a snap judgment. Since this case arose, the rules of civil procedure have been amended to require that notice be given of the intent to take a judgment by default. Pa.RC.P. 237.1. See Explanatory Note—1979 to the Rule. While the amended rules did not apply to this case, they reflect our hostility to snap judgments.

The lower court said in its opinion that it had rejected appellant’s explanation of her default for “two reasons.... There is a valid return of service . . . and [appellant’s] own statement of facts indicates that she consulted a lawyer and instituted an action on the note in the fall of 1972.” Slip op. at 1-2. But a valid return of service does not always show actual knowledge of the suit. Maurice Goldstein Co., Inc. v. Margolin, 248 Pa. Superior Ct. 162, 374 A.2d 1369 (1977). The lower court appears to have ignored both the fact that the sheriff’s return did not indicate that the complaint was left with appellant personally and appellant’s testimony that service was made on a baby-sitter and that the first notice she had that anything was happening was a card received from appellee shortly after the judgment was entered. It was only then that appellant consulted—and had any reason to consult—a lawyer.

-fa-

in support of its finding that appellant had not explained the delay in filing her petition to open, the lower court recited in its opinion that the petition had been filed on November 22, 1977. Slip op. at 1. In fact the petition was filed on September 8, 1975.

To be sure, even so the delay was considerable, specifically, two years and eleven months after the default judgment was entered. But there is no “magic formula” by which we can determine whether a given delay was so long as to preclude granting a petition to open. The determination will depend on the particular facts. Government Employees Financial Corp. v. Walker, 259 Pa. Superior Ct. 371, 393 A.2d 873 (1978). “[W]here equitable circumstances exist, a default judgment may be opened regardless of the time that may have elapsed between entry of the judgment and filing of the petition to open.” Queen City Electric Supply Co., Inc. v. Soltis Electric Co., Inc., supra, 491 Pa. at 361, 421 A.2d at 177. In some cases a period of less than two months has been found to be too long. E.g., Schutte v. Valley Bargain City, Inc., 248 Pa. Superior Ct. 532, 375 A.2d 368 (1977) (forty-seven days); Carducci v. Albright Galleries, Inc., 244 Pa. Superior Ct. 48, 366 A.2d 577 (1976) (fifty-four days). In other cases a very much longer period has been found not to be too long. E.g., Queen City Electric Supply Co., Inc. v. Soltis Electric Co., Inc., supra (twenty months); Joseph Melnick Building and Loan Ass’n v. Melnick, 361 Pa. 328, 64 A.2d 773 (1949) (seventeen years); Bianco v. Pullo, 195 Pa. Superior Ct. 623, 171 A.2d 620 (1961) (four years).

We have required the promptest action when the responsible party is knowledgeable and the delay is unexplained. For example, in Schutte v. Valley Bargain City, Inc., supra, the responsible party was an insurance company that waited 19 days after learning of the judgment before retaining counsel, who then for some unexplained reason delayed another 28 days before filing the petition to open. Some of the longer delays have been permitted when it was shown that the judgment was void, Joseph Melnick Building Loan Ass’n, supra; had been obtained by fraud, Bianco v. Pullo, supra; or where the petitioner had taken all of the steps— including seeking legal counsel—that he reasonably believed were necessary to protect his interest, Raymond J. Brusco Funeral Home v. Sicilia, supra; Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars, 237 Pa. Superior Ct. 419, 352 A.2d 134 (1975).

Appellant argues that because of violations of the Motor Vehicle Sales Finance Act, Act of June 28, 1947, as amended, 69 P.S. § 601 et seq., the finance agreement for her brother’s automobile was illegal as to her, and the judgment against her was therefore void and subject to being opened at any time. We say more about this aspect of her defense later in this opinion. Although some authority supports appellant’s claim that a void judgment is subject to being opened without regard to the passage of time, Joseph Melnick Building and Loan Ass’n v. Melnick, supra, but see, Tice v. Nationwide Life Ins. Co., 284 Pa. Superior Ct. 220, 228-38, 425 A.2d 782, 787-92 (1981) (concurring opinion by SPAETH, J.), we do not need to decide whether the judgment against appellant is void in order to find that considering all of the circumstances, her petition to open was filed promptly enough.

The first notice appellant had of the judgment was the card she received in the mail from appellee. She did not ignore the card but rather called appellee as requested. On being told that her house was in danger she immediately consulted a lawyer. On being told that the lawyer could not represent her, she immediately consulted, and retained, another lawyer. Although appellant had the right to believe that her interests were being protected by this lawyer, Charles J. Webb, Co., Inc. v. Webber, 194 Pa. Superior Ct. 614, 169 A.2d 604 (1961), it appears that the lawyer measured her efforts on appellant’s behalf by her estimate of what appellant could afford to pay. When appellant was served with the complaint in ejectment she again immediately sought legal help, only to end up with yet another lawyer who measured his services by his estimate of what she could afford to pay. When, during the period that she was temporarily ineligible for Community Legal Services representation, her case was referred to the Lawyer Reference Service, no other lawyer stepped forward with any offer of assistance.

Even when the party seeking to open a judgment has been a bank, which we may presume to be knowledgeable and unconstrained in its ability to retain the assistance of counsel, we have found that the equities were such that a delay of nearly two years was excusable, and that it was an abuse of discretion for the lower court to find otherwise. Queen City Electrical Supply Co., Inc. v. Soltis Electric Co., Inc., 258 Pa. Superior Ct. 305, 392 A.2d 806 (1978), aff’d, 491 Pa. 354, 421 A.2d 174 (1980). Here we find the equities in appellant’s favor compelling.

-c-

It remains to consider whether appellant pleaded a meritorious defense to the action. Because of its view of the case the lower court did not consider this issue. The record, however, is sufficient for us to decide it ourselves. Raymond J. Brusco Funeral Home v. Sicilia, supra.

The requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief. Alexander v. Jesray Construction Company, 237 Pa. Superior Ct. 99, 346 A.2d 566 (1975). Appellant’s petition to open alleges six defenses, under various provisions of the Pennsylvania Motor Vehicle Sales Finance Act, 69 P.S. § 601 et seq., the Federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., and the Federal Trade Commission Act, 15 U.S.C. § 45 et seq. These defenses include not only her having been induced to sign the papers in blank and never being given copies of them, but also failure to receive the notice of the right of rescission required by 15 U.S.C. § 1635 and failure to have disclosed to her all of the information required by 15 U.S.C. § 1638. Under both the Truth-in-Lending Act, 15 U.S.C. § 1614, and the Motor Vehicle Sales Finance Act, 69 P.S. § 615(F), appellee as assignee is equally liable with the automobile agency for violations of the Acts. This is no less true because of appellee’s having sued only on the judgment note and not on the sales finance agreement itself. 69 P.S. § 615(G).

We have no difficulty deciding that appellant has pleaded defenses that if proved at trial would justify relief. Both the Truth-in-Lending Act and the Motor Vehicle Sales Finance Act are remedial Acts designed to protect persons in appellant’s position. We have previously held that a contract that violates the Motor Vehicle Sales Finance Act is illegal, and that if the illegality is apparent on the face of the contract, a judgment based on the contract is void and subject to being stricken. Roxy Auto Company v. Moore, 180 Pa. Superior Ct. 603, 122 A.2d 87 (1965).

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Up to this point we have considered the case in terms of the tripartite test set forth in cases such as Balk v. Ford Motor Co., supra. Having decided that appellant has met that test, we could stop. Appellant has argued, however, that the tripartite test was intended only as an analytical framework to guide a court in the exercise of its equitable powers as a “court of conscience,” and that it should not be applied as literally as its formulation suggests. It was to consider this argument that we granted appellant’s application for reargument before the court en banc.

Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. E.g., Reyer v. Guinta, 292 Pa. Superior Ct. 182, 436 A.2d 1212 (1981). It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the two sides. E.g, Kraynick v. Hertz, supra; Raymond J. Brusco Funeral Home v. Sicilia, supra; Toplovich v. Spitman, supra.

In a recent case, which we have cited several times in this opinion, the Supreme Court said:

The sole remaining issue, then, is whether the petition to open was promptly filed. This is always an equitable determination which must be made in light of what is reasonable under the circumstances. Indeed, it is well established that where equitable circumstances exist, a default judgment may be opened regardless of the time that may have elapsed between entry of the judgment and filing of the petition to open.
Queen City Electrical Supply Co., Inc. v. Soltis Electric Co., Inc., supra, 491 Pa. at 361, 421 A.2d at 174 (citation omitted).

The question is, Can a court make an “equitable determination” of what is “reasonable under the circumstances” without considering all of the circumstances of the particular case? We think not.

Consider the present case, for example. Appellant argued vigorously to the lower court that violations of the Motor Vehicle Sales Finance Act made the contract on which the judgment was entered against her illegal. The lower court never considered this argument, for it applied the tripartite test in a rigid step-by-step way: having decided that default and delay were not excused, it never went on to consider the merits of appellant’s defense. If, however, all of the circumstances are to be considered, the court should not have ignored appellant’s defense. The merits of a defense may have some bearing on the question of whether a petition to open was promptly enough filed. The more plainly meritorious the defense, the more heavily the equities will incline in the petitioner’s favor, which is to say, the more appropriate it may be to excuse some delay. Here, as we have discussed, appellant’s defense appears compelling; she may, indeed, be able to show that the judgment against her was void.

We are not suggesting that the tripartite test is not important. The test will often provide a ready determination—a navigator’s “quick fix”—of where the equities lie. For example, in a case where no attempt has been made to explain the default or delay, or where, in an assumpsit case, no defense has been pleaded, or only one clearly without merit, it is difficult to imagine that the equities would favor opening the judgment. But where some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

The correctness of this conclusion is confirmed, not only by general considerations of how a court of equity should proceed, but by settled practice when the default judgment has been entered in an action in trespass. In such a case it is only necessary that the petition to open be promptly filed and the default reasonably explained; it is not necessary to plead a meritorious defense. Balk v. Ford Motor Co., supra. However, “while a good defense would normally not be required in a trespass action, where present it can at least qualify as an equitable consideration favoring the opening of judgment.” Id. 446 Pa. at 140 n. 3, 285 A.2d at 131 n. 3. This rule is repeated in many of our cases. E.g., Reyer v. Guinta, supra; Forest Hills Transfer & Storage Company, Inc. v. Beaver Valley Builders Supply, Inc., 271 Pa. Superior Ct. 566, 414 A.2d 628 (1979); Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars, supra. Thus, in a trespass case the court may properly consider how meritorious is the defense in deciding whether the petition to open was filed promptly enough, or the default reasonably explained. We see no basis for saying that in an assumpsit case the court may not do the same.

REVERSED.

CAVANAUGH, J., files a dissenting opinion in which PRICE and HESTER, JJ., join.

CAVANAUGH, Judge,

dissenting:

I dissent because, in my view, the majority has ignored the applicable law. The only issue before this court is whether the court below abused its discretion in refusing to open a judgment entered by default. The grant of a petition to open judgment is a matter of judicial discretion and an appeal to the court’s equitable powers. The discretion is to be exercised only when three factors coalesce: (1) The petition has been promptly filed; (2) a meritious defense can be shown and (3) the failure to appear can be excused. Balk v. Ford Motor Company, 446 Pa. 137, 258 A.2d 128 (1971). Further, a lower court’s refusal to open a judgment will not be reversed unless there has been an abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). What constitutes an abuse of discretion was clearly stated in Mielcuszny v. Rosol, 317 Pa. 91, 93, 94, 176 A. 236 (1934):

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.

It is not sufficient to persuade an appellate court that it might have reached a different conclusion if it, in the first place, had been charged with the duty imposed on the court below. Garrett’s Estate, 335 Pa. 287, 6 A.2d 858 (1939).

In Day v. Wilkie Buick Company, 239 Pa.Super. 71, 361 A.2d 823 (1976) this court reversed the order of the lower court refusing to open a default judgment, as the petition to open was promptly filed (approximately sixteen days after the entry of default) and the petition presented a “sufficient case of excuse.” Judge Hoffman filed a dissenting opinion in which Judge Spaeth joined, stating at 239 Pa.Super. 75, 76, 361 A.2d 825, 826:

It is irrelevant that we would decide differently were we charged with the duty to decide the case in the first instance. (Emphasis added).

In the instant case the majority has decided that the court below abused its discretion in determining that the petition to open had not been promptly filed. The majority has simply substituted its own judgment for that of the court below and the law does not permit this.

In order to fully understand this case we must briefly consider the factual and procedural background. The narrative in this ease which had the unhappy result of the appellant losing her house, begins on or about December 20, 1971, when the appellant accompanied her brother and his wife to the Peter James Buick Agency in Ardmore, Pennsylvania. Mrs. Davis’ brother, Charles Young, wanted to buy an automobile and asked her to go along to co-sign for the car. At the time Mrs. Davis was on her way to Washington D. C. to visit her sick brother and she did not have much time to remain at the automobile agency. She testified that an employee of the agency asked her to sign some papers in blank. Apparently, the agency considered Mrs. Davis to be a suitable co-signer as she was buying a house and an automobile herself. She testified that an employee of the automobile agency told her that they wanted a co-signer who did not move about the city and who had good credit references. She thought that by becoming a co-signer it meant that if her brother could not be located that she would be contacted and would in turn contact her brother and he would make payments on the car.

Mr. Young fell behind in his car payments and a complaint in assumpsit was served on Mr. and Mrs. Young on August 1, 1972, and a default judgment was taken as to them on August 25, 1972. A complaint against the appellant, Mrs. Davis, was served at her residence on September 9, 1972. Mrs. Davis was not home and the complaint was served on an adult at her house. The appellant does not challenge the validity of the service of the copy of the complaint. On October 3, 1972 a default judgment was taken against the appellant. Damages were assessed in the total amount of $4,838.90 representing the unpaid balance of $4,100.90 and collection charges of eighteen per cent or $738.00. On January 3, 1974 a writ of execution was filed for the purpose of selling Mrs. Davis’ home at 6134 Lebanon Avenue, Philadelphia, Pennsylvania. The writ of execution claimed a balance due in the amount of $3,959.84. Appellant’s home was sold on February 4, 1974, at the sheriff’s sale to the attorney for the plaintiff on the writ. In August, 1974, an action in ejectment was commenced against Mrs. Davis and in September, 1974, a sheriff’s deed was given to Carl Inker for Mrs. Davis’ home.

On September 8, 1975 Mrs. Davis filed a petition to open and/or strike the default judgment. On July 5, 1977, Mrs. Davis filed interrogatories to the Provident Credit Corporation, appellee. On September 16,1977, Mrs. Davis’ deposition was taken and this constitutes the only testimony before the court below. Appellee filed a motion for protective order with regard to the interrogatories filed on July 5, 1977, and the motion for protective order was granted without hearing by Judge Greenberg on November 16,1977. On May 16, 1978 Judge Jenkins denied Mrs. Davis’ petition to open and/or strike the default judgment and from these two orders the appellant has appealed to this court.

Judge Jenkins in his opinion in the court below denied the petition to open judgment on the grounds that it was not promptly filed and that the default was not reasonably explained. On appeal to this Court, a panel consisting of Wieand, Robinson and Louik, JJ. sustained the action of the lower court in an opinion by Robinson, J., concurring statement by Wieand, J. and dissenting opinion by Louik, J. Appellant’s petition for reargument was granted and the case was argued before the court en banc.

The law attaches genuine significance to the requirement that a petition to open a default judgment must be filed promptly after the petitioner learns of the default. Nevertheless, “[t]he law does not establish a certain number of days which constitutes a cutoff point between a prompt filing of a petition to open and one which is not timely filed.” King v. Evans, 281 Pa.Super. 219, 224, 421 A.2d 1228, 1230 (1980). In some cases it is evident that the petition to open has been promptly filed. In DiNenno v. Great Atlantic and Pacific Tea Company, 245 Pa. Super. 498, 369 A.2d 738 (1976) the petition to open was filed fifteen days after the entry of a default judgment, and this court held that “clearly the petition to open was promptly filed.” 245 Pa.Super. at 500, 369 A.2d at 739. See also Quaker Transit Company, Inc. v. Jack W. Blumenfeld and Company, 277 Pa.Super. 393, 419 A.2d 1202 (1980) in which this court held that a petition to open filed fourteen days after the default judgment had been entered was timely filed. Similarly, in Cruse v. Woods, 279 Pa.Super. 242, 420 A.2d 1123 (1980) a petition to open filed six days after the judgment was entered was promptly filed.

In the case of Ruczynski v. Jesray Construction Corporation, 457 Pa. 510, 326 A.2d 326 (1974) the Supreme Court held that the court below abused its discretion in opening a default judgment where the petitioner delayed less than five months after learning that a default judgment had been entered against him. During this time the attorneys for the parties were attempting to negotiate a settlement. The court also noted in Ruczynski, supra that timeliness is measured from the time one receives notice of the entry of the default judgment and not from the actual entry. See also Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980). In order to determine what is a prompt filing of a petition to open the circumstances of each individual case must be considered. In Jost v. Phoenixville Area School District, 237 Pa.Super. 153, 346 A.2d 333 (1975) the court determined that a petition to open was not promptly filed where it was filed five months after the default judgment had been entered. The petition alleged a meritorious defense. In Reliance Insurance Company v. Festa, 233 Pa.Super. 61, 335 A.2d 400 (1975) the petition to open was filed some four months after the entry of the default judgment. The petitioner alleged that letters notifying the appellant that a default judgment was entered were apparently filed away and not seen by counsel for several weeks. The court stated at 233 Pa.Super. 64, 335 A.2d 401:

We need not consider whether such inadvertence may be considered in a determination of whether the insurance company acted promptly, because we find that counsel’s additional delay of 71 days from September 27, 1973, when it admits actual notice of the judgment, until December 7, 1973, when the petition was finally filed, is too excessive to meet the requirement of promptness.

In the Reliance case the court held that the lower court erred in opening the default judgment. A delay of eight weeks between the time of notice of the default judgment and the petition to open was found too long in Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973). As an illustration of how promptly a party must move to open a default judgment, the court held in Texas and Block House Fish and Game Club v. Bonnell Run Hunting and Fishing Corporation, 388 Pa. 198, 130 A.2d 508 (1957) that the court below was correct in finding that no satisfactory explanation had been given for delay of twenty-seven days from the time of notice of the entry of default judgment until the petition to open judgment was filed and the court held that the petition was not timely filed. In Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977) the lower court found that a petition to open was promptly filed notwithstanding a delay of forty-seven days between the time that confusion was resolved by the defendant as to an action against it, and the filing of the petition to open the default judgment. This Court found that the court below abused its discretion in finding that the petition to open was promptly filed. Similarly, in Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 404 (1977), this Court found that the lower court abused its discretion in granting a petition to open a default judgment filed sixty-three days after the defendant received notice of the entry of the default judgment. That our courts are very sensitive to a prompt filing of a petition to open is illustrated by Smith v. Tonon, 231 Pa.Super. 539, 331 A.2d 662 (1974) in which this Court held that the court below abused its discretion in opening a default judgment where counsel for the defaulting party had three weeks in which to file a petition to open before he left for a three months tour of duty in the army reserve.

In the recent case of Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981) this court again recognized the importance of a prompt filing of a petition to open a default judgment. Default judgment was entered on October 19, 1978 and the petition to open was filed on March 22, 1979. The petition to open was denied by the court below which did not discuss the requirement of promptness. This court remanded for further proceedings. It stated at 286 Pa.Super. 537, 429 A.2d 653:

Assuming, therefore, that appellants should be regarded as having filed their petition three months after the final decree instead of four months, the question becomes whether this delay was so long as to require that the petition be denied as not timely, even though, if its allegations are true, it shows a reasonable explanation for appellants’ failure to answer the complaint, and a meritorious defense to the complaint. (Emphasis added)

The circumstances of each case determine the question of promptness. For example, in Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 419 A.2d 688 (1980) a default judgment was filed on September 8, 1976 and the defendant first learned of it on December 7, 1976. The petition to open judgment was filed on July 6,1977, and this Court, reversing the court below, found it to be timely filed. An arrangement had been worked out between the plaintiffs attorney and the defendant’s attorney concerning the payment of a funeral bill whereby the plaintiff agreed to waive the prompt filing requirement if monthly payments were made on the judgment. On April 30, 1977, the defendant was told that as the payments were not being made that he should proceed to open the judgment. The court held that in the circumstances the petition to open was promptly filed. It noted that “it is undoubtedly true that in numerous cases we have found petitions that were filed in less than the time elapsed in the instant case to be not timely filed.. . In short, there is simply no ‘magic’ number which will determine whether a petition is timely or not.” 277 Pa.Super. at 119, 120, 419 A.2d at 690. In some circumstances, what might appear at first glance to be an obvious untimely filing of a petition to open, the court has found the petition to be timely filed. In the recent case of Queen City Electri cal Supply Company, Inc. v. Soltis Electric Company, 491 Pa. 354, 421 A.2d 174 (1980) (Roberts J. filed a dissenting opinion in which Larsen, J. joined) the Supreme Court found that the trial court had abused its discretion in denying a petition to open. The court stated at 491 Pa. 356, 421 A.2d 175:

The issue here presented is whether a court should open a snap default judgment entered without notice against a garnishee one day after the time allowed for filing answers to interrogatories had expired where (1) the garnishee is a stranger to the underlying transaction, (2) the default was excusable, (3) the answers to interrogatories were filed one day after the default judgment was taken, (4) the garnishor would reap a windfall in excess of $20,000.00, and (5) although the petition to open was not filed for twenty months, the garnishor sustained no prejudice from the delay.

Despite the fact that the garnishee waited twenty months to petition to open, the Supreme Court, affirming the Superior Court, found the petition to be timely filed. It was pointed out that the courts have expressed a greater willingness to relieve a defaulting garnishee than a defaulting defendant. The court also noted that the delay in filing, the petition to open resulted substantially from the legal confusion produced by the conflicting demands made upon the bank (garnishee) by the garnishor and the trustee in bankruptcy. The court also found that the garnishor suffered no prejudice by the delay. The court stated at 491 Pa. 361, 421 A.2d 177:

The sole remaining issue, then, is whether the petition to open was promptly filed. This is always an equitable determination which must be made in light óf what is reasonable under the circumstances. Indeed, it is- well established that where equitable circumstances exist, a default judgment may be opened regardless of the time that may have elapsed between entry of the judgment and filing of the petition to open. See Baranofski v. Malone, 371 Pa. 479, 482, 91 A.2d 908, 909 (1952).

It should be noted that Baranofski v. Malone, 371 Pa. 479, 91 A.2d 908 (1952) involved a petition to open judgment that was filed almost ten months after its entry and less than seven months after the petitioner received notice of the entry by registered mail. The court found the petition to be untimely filed, and stated at 371 Pa. 482, 91 A.2d 909:

Moreover, and apart from all other considerations, defendant lost any possible right to equitable relief because of his delay in seeking it. It is true that a court has the power to open a judgment by default (as distinguished from a judgment adversely rendered) even after the expiration of the term in which it was entered; Breden v. Gilliland, Executor, 67 Pa. 34; King v. Brooks, 72 Pa. 363; Roth v. Pechin, 260 Pa. 450, 454, 103 A. 894, 896; Richey v. Gibboney, 154 Pa.Super. 1, 7, 34 A.2d 913, 915. But the application for that purpose must be made without unreasonable delay or else the relief sought is barred by laches.

The question is immediately raised whether the language of the Supreme Court in Queen City Electrical Company Inc. v. Soltis Electric Company, supra, that “where equitable circumstances exist, a default judgment may be opened regardless of the time that may have lapsed between entry of the judgment and filing the petition to open” means that the Supreme Court has suddenly abandoned the requirement that the petition to open must be promptly filed. We think not. We believe that the Court is merely stating the requirement that the determination of what is prompt depends on the circumstances of the case. In fact, the Superior Court in Queen City Electrical Supply Company v. Soltis Electric Company, 258 Pa.Super. 305, 309, 392 A.2d 806, 807 (1978) succinctly stated the problem as follows: “Instantly, there is no serious dispute that the default was excusable and that a meritorious defense has been shown. The issue is whether the twenty-month delay in filing the petition to open can be considered ‘prompt’ under the circumstances of this case.”

In Maurice Goldstein Co., Inc. v. Margolin, Inc., 285 Pa.Super. 161, 427 A.2d 162 (1980) this Court stated that the Pennsylvania Supreme Court set forth the test for determining whether a petition to open judgment has been promptly filed in the Queen City Electrical Supply Company case, supra, and concluded that “no equitable circumstances exist here to justify opening the judgment against appellee at that late date.” 285 Pa.Super. 166, 427 A.2d 164 (1980). While this language might indicate that the promptness requirement has been superseded by “equitable circumstances” this doubt is put aside as the court stated at 285 Pa.Super. 164, 427 A.2d 163 “[w]e find that Mr. Margolin [who filed the petition to open the default judgment] failed to satisfy the requirement of a prompt filing of the petition.” (Emphasis added). In the Goldstein Co. Inc. case default judgment was filed on February 23, 1973 and the petition to open was filed on May 30, 1975, two years and three months later. This Court held that the court below had abused its discretion in opening the judgment. Apparently several attempts had been made to notify the petitioner of the suit and the default judgment against him although he claimed that he first learned of the default judgment in April, 1975, which was only about a month before he filed his petition to open.

We must review the circumstances of this case to determine if the appellant acted promptly having once learned that a default judgment was entered against her. A default judgment in a sense is a red flag that signals danger. “The concept of a default judgment is based on a litigant’s failure to do something that he should have done to protect his interests. Once a party learns that a default judgment has been entered against him, indifferent conduct must be replaced with that consistent with the exigency of the situation.” King v. Evans, 281 Pa.Super. 219, 421 A.2d 1228, 1230 (1980). In this case there was a period of almost three years between the filing of the default judgment and the filing of the petition to open and such a delay appears to be in inordinate unless in the circumstances we find that the appellant acted promptly. The appellant does not question the validity of the service of the complaint on her. The default judgment was taken on October 3, 1972. Appellant learned of the entry of the judgment shortly thereafter when she spoke to a representative of the Provident Credit Corporation on the telephone and was told the judgment had been entered against her and that she ran the risk of losing her house since her brother had not made payments on his car. In November, 1972, about a month after judgment was entered the appellant was very concerned about the fact that she might lose her home. She contacted an attorney, Allan Getson, who said he could not represent her as he represented her brother, Charles Young, in another matter. Mrs. Davis then contacted another attorney, Cassandra Birnie, with respect to the default judgment and the possible loss of her house. Mrs. Birnie apparently advised appellant to seek to have the judgment removed but told her that it would be expensive to do this. Mrs. Davis chose not to pay the cost of legal proceedings. It is not clear from the record what Mrs. Davis or her attorney did concerning the matter from the fall of 1972 until November, 1973. In November, 1973, Mrs. Davis received a copy of a letter dated November 6, 1973 from the Provident Credit Corporation to Mr. Young stating that in the “event that you have not been out of work you are responsible for all delinquent installments which total $1,528.92. In August, 1974, Mrs. Davis received a complaint in ejectment as her house had been sold at sheriff’s sale on February 4, 1974. She contacted an attorney, Mr. Smukler, who advised her of the necessity of proceedings to have the default judgment against her removed. He also told her the proceedings would be costly. Mrs. Davis then left Mr. Smukler and in early 1975 contacted the Community Legal Services, her present counsel. Counsel for Community Legal Services contends on appeal that her new counsel began the detailed process of mustering the facts and researching the issues when Mrs. Davis became marginally ineligible for Community Legal Service aid because of an increase in her Veterans Administration and Social Security benefits. The case then apparently was referred to Lawyers Reference Service which attempted unsuccessfully to refer the case to several private attorneys. Counsel for appellant further alleges in his brief that because of special circumstances the Community Legal Services was reauthorized in August, 1975, to again represent appellant and the petition to reopen was filed in September, 1975.

The dominant fact in this case is that as early as November, 1972, the appellant was aware that a default judgment was entered against her. She further understood that she ran the risk of losing her house, which she ultimately did, because of the default judgment. She was advised by at least two attorneys that proceedings could be taken to petition to open the judgment but she did not want to proceed because of the cost involved. Finally, in the early part of 1975 the appellant sought help at Community Legal Services where free services were available for those eligible to receive them. It is alleged that after she was first represented by Community Legal Services she lost her eligibility for free services because of increased income. Even though the appellant was again entitled to free legal services in September of 1975 she made no use of the services during the period January, 1976, until the spring of 1977.

Although appellant argues that she did the best she could to obtain proper legal representation, it appears that she was unwilling to pay counsel to proceed to petition to have the judgment against her opened, although it was the default judgment that ultimately resulted in the loss of her house. It is one of the first maxims of equity jurisprudence that equity aids the vigilant and not those who slumber on their rights. Witmer v. Exxon Corporation, 260 Pa.Super. 537, 394 A.2d 1276 (1978).

Certainly, we sympathize with the appellant who is a widow with limited means and who has lost her house because of the fact that she co-signed on an obligation so that her brother could purchase an automobile. While the circumstances dictate what constitutes prompt action in every case dealing with a petition to open a default judgment, we believe that this court has misapplied the law in determining that the court below abused its discretion.

Accordingly I dissent.

      . Appellant has also appealed from the lower court’s order granting appellee’s motion for a protective order with respect to her second set of interrogatories, which were filed in support of her petition to open. Since we have concluded that the petition to open should have been granted, even without answers to the second set of interrogatories, we need not consider the propriety of the protective order. We note, however, that since the order was entered incident to the petition to open the judgment, it is inapplicable to any discovery in which appellant may wish to engage with respect to the merits of the underlying action.

      . Appellant’s late husband was a veteran of World War II and the Korean War.

      . Meanwhile, on December 5, 1975, appellant had filed a petition to set aside the sheriffs sale of her home. Five days later, without a hearing, the petition was denied. As appellant explained in her deposition, she was so disgusted by this that she took the papers relating to her case and decided that she would go to church and pray about it. It was only after being encouraged to do so by a representative of the F.H.A. that she went back to C.L.S., approximately a year later. We will not hold this delay against appellant, however, because the delay that is important in considering a petition to open judgment is the delay before the petition is filed. Once the petition is filed, the respondent has the power to require the petitioner to proceed expeditiously. Pa.R.C.P. 209. Appellee here took no action under Rule 209.

      . We find no support in the record for the lower court’s statement that appellant “instituted an action on the note.” Appellant did believe that payments credited to the judgment resulted from action taken by her first lawyer, and the petition to open reflected her belief by averring in paragraph 30 that “Mrs. Birnie filed an attachment against the brother’s proceeds from the personal injury suit.” However, as already mentioned, appellant’s belief was mistaken, and the averment about the attachment was denied, correctly, in paragraph 30 of appellee’s answer to the petition. See Brief for Appellant at 26-27.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    446 A.2d 270
    COMMONWEALTH of Pennsylvania, Appellant, v. Rodger REYNOLDS.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed May 21, 1982.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Larry P. Gaitens, Pittsburgh, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   SPAETH, Judge:

This appeal is from an order suppressing an inculpatory statement made by appellee while he was in the custody of the police on a charge of arson. The lower court found that appellee’s statement was the product of police coercion. We affirm.

On June 24,1980, the Chief of Police of Findlay Township, Steve Krawchyk, went to appellee’s grandmother’s home, where appellee lived. Chief Krawchyk asked appellee to accompany him to the police station. Appellee complied. At the police station appellee was placed under arrest for an arson that had occurred on June 17, 1980. After he was advised of his Miranda rights, he denied having committed the arson. He was handcuffed and taken to the Allegheny County Detective Office in Pittsburgh. There he was again advised of his Miranda rights, signed a waiver, and made an oral statement inculpating himself in the arson. At the request of the police he reduced this statement to writing. One of the detectives then prepared a typewritten statement and appellee signed it. The lower court suppressed this statement; the handwritten statement was not produced at the suppression hearing; one of the detectives testified that he couldn’t find it, N.T. 56, another detective, that he had “discarded it,” N.T. 43-44.

One of the witnesses at the suppression hearing was Thomas Michael Eberle, a clinical and forensic psychologist with a doctoral degree in clinical psychology and on the staffs of St. Francis Hospital and Western Pennsylvania Hospital in Pittsburgh. He testified that after an extensive interview, he gave appellee several tests and reviewed his school records. At the time of his arrest, appellee was thirty years old. The lower court accepted Dr. Eberle’s evaluation of appellee, and in its opinion it described appellee as follows:

[H]is I. Q. was only seventy-four. He lived with his elderly grandmother in a rural community. He was treated as a dependent child .... His mental development was that of a fourth or fifth grader, usually a child of age ten and he did not even have the benefit of being “street wise,” that is the acquired legal education that many young urban criminals absorb from the gangs and ghetto[e]s of crowded urban areas.

Slip op. at 4-5.

The court further found:

It is obvious to this court that the police, knowing the defendant [appellee] was mentally “slow,” used the tactic of threatening him with jail if he did not confess. Such threats, even if veiled in semantics, are always illegal and when used in questioning a person suffering from mental retardation, border on the despicable.

Id. at 5.

Before the Commonwealth may introduce an inculpatory statement made by someone in its custody, it must prove, by a preponderance of the evidence, that the statement was voluntary. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976); Commonwealth v. Jones, 459 Pa. 286, 328 A.2d 828 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). While it is the responsibility of the suppression court to determine the credibility of the witnesses, and the weight to be accorded their testimony, Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978), it is our responsibility to determine “whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings,” Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). See also, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).

In considering whether the record does support the lower court’s findings, we may start with the evidence regarding appellee’s mental ability. While mental subnormality does not per se render a statement involuntary, it is nonetheless a factor that must always be considered in determining whether the statement was the product of coercion. See generally, Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Anno. 27 A.L.R.3d 1185. Not only does it appear that appellee was of subnormal intelligence but, the lower court found,.this fact was well known to the police. Thus the lower court said:

Chief Krawchyk testified that he had known the thirty year old defendant since he was six (6) years of age .... It is inconceivable to this court that Chief Krawchyk did not know that the defendant was afflicted with subnormal intellectual functioning diagnosed as borderline mental retardation. In fact, it was Chief Krawchyk that told Detective Laird that the defendant “was slow” ....

Slip op. at 2.

Another factor to be considered in determining whether a statement was the product of coercion is the degree of isolation to which the suspect was subjected during interrogation. See Miranda v. Arizona, supra, 384 U.S. at 449-50, 86 S.Ct. at 1614-15. Here, the record shows that the police did isolate appellee from those who might have been able to assist him. Police Chief Krawchyk approached appellee at the house he lived in with his grandmother in the early evening. The Chief did not inform either appellee or his grandmother that appellee would be arrested at the police station but instead, merely asked appellee to accompany him to the station. N.T. 4-16. After appellee denied having committed the arson, he was handcuffed and told that he would have to go “uptown.” N.T. 7 & 14.

Having isolated appellee, the police attempted to convince him of the wisdom of “cooperating.” Appellee was told that the police had “just talked to three, four people who saw him coming out [of the building in question].” N.T. 55. He was also assured that the police would help him stay out of jail, should he tell them he did it. Thus appellee testified:

So on the way to town, whatever people is up there, they said that they seen me do it; and if I would, you know, go along with them and say I did, it will be easier on me, they’d get me bail, help get me bail and get me out of there, because I didn’t want to be locked up in the Pittsburgh jail.

N.T. 105.

After arriving at the Allegheny County Detective Office, the police increased the psychological pressure on appellee. The lower court accepted as credible the following testimony by appellee:

Well, they told me, they gave me coffee and everything, and some cigarettes and things to smoke, they said: You don’t want to go to County Jail. We’ll get you bail, get you out of here. They said: Do you know what’s in County Jail? I said: No, I don’t know. They said:- You don’t want to go there, because all you see in County Jail is a bunch of niggers and cockroaches.

N.T. 106.

We are satisfied that the record supports the lower court’s findings and its conclusion that appellee’s statement was not voluntary.

Affirmed.

      . The Commonwealth asserts that “[t]he arresting officers testified that they made no “threats or promises of leniency to induce the accused’s inculpatory statement.” Brief for Commonwealth at 9. However, the lower court found that appellee “was told that if he would go along with the police, they would get him out on bail and he did not have to be locked up in a Pittsburgh jail.” Slip op. at 3. Thus, the court found appellee’s testimony credible; we must accept that finding. See Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). Furthermore, one of the Commonwealth’s witnesses acknowledged advising appellee that he should confess. Thus on cross-examination Detective Laird testified:
      Q. And at some point in time did you tell him it would be to his advantage to cooperate with the police?
      A. I told him that if in fact he had done it,—Detective Cunningham told him initially that he would be—he could be better off if he made a statement than if he didn’t.
      Q. So you told him, then, that he would be better off if he made the statement, and at that point in time for the first time he admitted any involvement?
      A. No, as a matter of fact he didn’t. He again said no. It wasn’t until Detective Cunningham approached him about the three individuals or four individuals seeing him coming out of the house that he said—that he made the statement. Well, okay, let’s get this out in the open and get this settled. 1
      N.T. 66.
      In the mind of one accused of a crime, “better off’ may be readily translated into a promise of leniency if one does cooperate, and a threat of punishment if one does not.


text:
    446 A.2d 273
    Clement P. HILLER, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Oct. 14, 1982.

      Maurice A. Cardone, Nanticoke, for appellant.
    Joseph J. Musto, Wilkes-Barre, for appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order that denied appellant’s petition to confirm an arbitration award and granted appellee’s petition to vacate the award and set the matter down for trial. We must quash the appeal.

Appellant was seriously injured in an automobile accident. He sought benefits under the uninsured motorist clause of a policy issued by appellee to his son, in whose car he was riding when the accident occurred. Appellee declined to pay and the parties proceeded to arbitration according to the arbitration section of the uninsured motorist clause in the policy. This section included the following provision:

When we arbitrate, the decision in writing will be binding up to the limits required under the Financial Responsibility law of Pennsylvania, and may be entered as a judgment in a proper court. When an award exceeds those limits, either party has a right to trial on all issues in a court of competent jurisdiction. This right must be exercised within 60 days of the award.

R.R. at 35a.

The arbitrators, by a vote of two to one, awarded appellant $30,000, which was the maximum amount available under the policy issued to appellant’s son and which does exceed the $15,000 per person/$30,000 per accident requirement of the Pennsylvania Financial Responsibility Law, 75 Pa.C.S.A. § 1747; 40 P.S. § 1009.104. Appellant petitioned the lower court to confirm the award, and appellee, pleading the part of the arbitration agreement we have just quoted, petitioned the court to vacate the award and set the matter down for trial.

The determination of whether a dispute is within an agreement to arbitrate is for the court to make. Women’s SPCA v. Savage, 440 Pa. 34, 269 A.2d 888 (1970). If a court determines that the dispute is not within the agreement to arbitrate, the appealability of its order depends on the type of arbitration involved. If the arbitration is statutory arbitration, the order is appealable because there is a statute that specifically makes it so. 42 Pa.C.S.A. § 7320. However, if the arbitration is at common law, the order is not appealable because the appellant is not out of court—indeed his very complaint is that he is being required to be in court—and there is no statute or rule making the order appealable. Capezio & Things, Inc. v. The Wynnewood Meredith Corp., 455 Pa. 84, 314 A.2d 20 (1974); P. Agnes, Inc. v. Philadelphia Police Home Association, 439 Pa. 448, 266 A.2d 696 (1970). It is undisputed that the arbitration clause in this case provides for common law arbitration.

We grant that the arbitration clause is an unusual one. It appears to make the scope of the agreement for binding arbitration depend on what the arbitrators determine the value of the claim to be. However, the question of whether parties may lawfully make such an agreement, either as a matter of general arbitration law or as a matter of uninsured motorist insurance law, is not before us and we intimate no opinion regarding it. The lower court construed the agreement, held it valid, and found that the present dispute—that is to say, a dispute in which the arbitrators had determined the value of the claim to be over $15,000—was not within the scope of the agreement for binding arbitration. That determination was the court’s to make. Women's SPCA v. Savage, supra. We may not review it now. If appellant is dissatisfied with the outcome of the trial that the lower court has ordered, he may then raise any objections he might have to the legality of the arbitration clause.

QUASHED.

      . We note that uninsured motorist clauses ordinarily do include provisions for arbitration. The national standard form, which is included in the regulations of the Insurance Commissioner, 31 Pa. Code § 63.2 (Exhibit C), includes a broad arbitration clause. However, the statute that requires uninsured motorist coverage, Act of Aug. 14, 1963, as amended, 40 P.S. § 2000(a), does not require arbitration, and we have held that in the absence of statutory requirement, arbitration may not be required by regulation. Ellison v. Safeguard Mutual Ins. Co., 209 Pa.Super. 492, 229 A.2d 482 (1967). In holding an insurance carrier to the broadly inclusive terms of the standard arbitration clause, the Supreme Court has said that this language is of the carrier’s own choosing, and that if it wishes different or narrower terms it should provide them. National Grange Mutual Ins. Co. v. Kuhn, 428 Pa. 179, 236 A.2d 758 (1968).


author: CAVANAUGH, Judge:

text:
    446 A.2d 275
    John NECHWEDOWICH, Appellee, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Appellant, v. KEYSTONE TRUCKING CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Nov. 5,1982.

      Joseph A. Murphy, Scranton, for appellant.
    Charles F. Wilson, Scranton, for Nechwedowich, appellee.
    Michael Donohue, Scranton, for Keystone, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   CAVANAUGH, Judge:

In this case an indemnity agreement had been entered into between The Great Atlantic and Pacific Tea Company, Inc., (referred to hereafter as A & P) the appellant, and Keystone Trucking Corporation, the appellee herein. The agreement provided among other things that “carrier [Keystone Trucking Corporation] agrees . . . except for cargo, to indemnify and hold harmless the A & P against all loss, cost, damage or liability of any kind or nature arising or growing out of or occurring in the performance of this contract.”

The plaintiff in the court below, John Nechwedowich, was a truck driver employed by Keystone Trucking Company who was injured in June, 1975, while unloading cargo in the area of the A & P store in Nanticoke. As a result of the injuries suffered by the plaintiff he filed a complaint against A & P alleging that he was injured when he was using a metal plate supplied by A & P to bridge the gap between the truck and the loading platform onto which the truck driver was attempting to unload produce. The injuries occurred when the metal plate fell to the ground. After Neehwedowich commenced the action in trespass against A & P that company filed a complaint as original defendant against Keystone Trucking Corporation as additional defendant. The basis of joinging Keystone was the indemnity agreement entered into between A & P and Keystone on August 8, 1974, and referred to above. The A & P alleged that Keystone was solely liable on the basis of the indemnity agreement. Keystone filed a motion for judgment on the pleadings and the complaint of A & P as original defendant against Keystone as additional defendant was dismissed. A & P has appealed from this order.

The sole question for our determination is whether a defendant in a trespass action may join as an additional defendant an employer of the plaintiff who has agreed with the defendant to imdemnify the defendant “against all loss, cost, damage or liability of any kind or nature arising or growing out of or occurring in the performance of this contract.” The court below dismissed the complaint against the additional defendant on the grounds that an additional defendant cannot be joined solely on the basis of an agreement to indemnify an original defendant. In this respect, the court below erred. This case is controlled by Szemanski v. Vulcan Materials Company, 272 Pa.Super. 240, 415 A.2d 92 (1979). In that case the plaintiff was employed by United and he was doing repair work on a crane owned by Vulcan and located on Vulcan’s premises. Vulcan was sued in trespass and attempted to join the employer (United) as an additional defendant on the basis of an indemnity agreement between Vulcan and United in which United agreed to indemnify Vulcan against “all losses and all claims, demands, payments, suits, actions, recoveries and judgments . . . arising out of any act or omission” of United, or “arising out of the use, occupancy or possession of premises of Vulcan” by United. The complaint alleged that United was liable over to Vulcan under the terms of the indemnity agreement. This court held that the defendant properly sought to join as an additional defendant the plaintiff’s employer who had agreed to indemnify the defendant against loss on the cause of action pleaded by the plaintiff. This court relied on Pa.R.C.P. 2252(a) and stated at 272 Pa.Super. 244, 245, 415 A.2d 94:

When Pa.R.C.P. 2252(a) is given a broad interpretation, it seems clear that defendant’s cause of action against an indemnitor, although not the same cause of action alleged by the plaintiff, is related to it. Without the occurrence or transaction which brings about defendant’s liability to plaintiff, there can be no obligation upon the additional defendant to indemnify defendant. Therefore, it can be said with assurance that defendant’s cause of action against the additional defendant arises, at least in part, from the same occurrence upon which the plaintiff’s cause of action is based.

The indemnity agreement in the Szemanski case and our own is similar. In our opinion the court below erred in dismissing the complaint against Keystone Trucking Corporation as an additional defendant.

Order reversed.

      . Appellant alleged in paragraph 5 of the complaint:
      5. Pursuant to Paragraph One (d), Keystone Trucking Corp. agreed that it would, except for cargo, indemnify and hold harmless The Great Atlantic and Pacific Tea Company, Inc. against all loss, costs, damage, or liability of any kind or nature arising or growing out of or occurring in the performance of the duties of Keystone Trucking Corp. under the contract.
      Pursuant to the terms of the aforesaid Agreement, The Great Atlantic and Pacific Tea Company, Inc. tendered the defense of the present lawsuit to Keystone Trucking Corp. and Keystone Trucking Corp. has wrongfully refused to abide by the Agreement of August 8, 1974.
      It is not claimed by appellant that the Keystone Trucking Corporation was liable on the basis of negligence but only on a contractual basis. The Workmen’s Compensation Act, Act of December 5, 1974, P.L. 782, No. 263, § 303(b), 77 P.S. § 481(b) precludes indemnity against the employer in favor of a third party “unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract...”

      . Pa.R.C.P. 2252(a) provides:
      (a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

      . We do not reach the complex question of interpretation of the indemnity agreement. The earlier cases, as Perry v. Payne and Company, 217 Pa. 252, 66 A. 553 (1907) and Pittsburgh Steel Company v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961) hold that words of general import are not sufficient to impose liability on the indemnitor for the indemnitee’s own negligence and that there must be unequivocal language in the indemnity clause to show that indemnification for the indemnitee’s own negligence was intended. However, the recent case of Urban Redevelopment Authority v. Noralco, 281 Pa.Super. 466, 422 A.2d 563 (1980) indicates that surrounding circumstances may manifest the parties’ intention to indemnify where liability is based on the indemnitee’s own negligence, although not spelled out in the general indemnity provisions.


author: WICKERSHAM, Judge:

text:
    446 A.2d 277
    COMMONWEALTH of Pennsylvania v. William RYAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed May 28, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Frederick W. McBrien, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order dismissing a suppression motion and affirming sentence. We also affirm. Appellant Ryan was arrested on January 18,1977 and charged with ten counts of receiving stolen property, possession of an automobile with a defaced manufacturer’s serial number, and criminal mischief in excess of $5000.00.

On May 17, 1977 appellant Ryan filed a petition to quash arrest and suppress evidence seized pursuant to two search warrants.

On June 15, 1977 Ryan’s pre-trial motions were heard and dismissed; the case then proceeded to trial before Judge Robert W. Honeyman and a jury. On June 22,1977 the jury returned a verdict of guilty on the ten informations charging theft by receiving stolen property.

Ryan subsequently filed motions for a new trial and in arrest of judgment alleging that his prior motion to suppress the evidence seized pursuant to the search warrants was improperly denied. These motions were dismissed and on August 26, 1977 appellant Ryan was sentenced to imprisonment for a term of not less than two and one-half (2lA) nor more than five (5) years.

Ryan then appealed to the superior court which found that the Commonwealth failed to carry- its burden of - proof at the suppression hearing on the evidence seized pursuant to the search warrants. Judgment of sentence was reversed and a new trial was granted. See Commonwealth v. Ryan, 268 Pa.Super. 259, 407 A.2d 1345 (1979).

The Commonwealth subsequently filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. The supreme court remanded the case to the superior court with an order that the superior court determine whether its prior order was intended to direct the trial court to grant appellant Ryan’s motion to suppress ór rather to conduct a new suppression hearing. See Commonwealth v. Ryan, 489 Pa. 221, 414 A.2d 37 (1980).

The superior court, in compliance with the supreme court’s order, remanded the case to the trial court with instructions that it conduct a new suppression hearing. If the trial court found that the evidence seized pursuant to the search warrants should not be suppressed then the judgment of sentence would stand affirmed and if, instead, the evidence or a part of it should be suppressed then the sentence would be vacated and a new trial held. Commonwealth v. Ryan, 277 Pa.Super. 262, 419 A.2d 762 (1980).

A suppression hearing was held in the Montgomery County Court of Common Pleas on November 18, 1980 before Judge Frederick B. Smillie. On May 22, 1981 Judge Smillie denied appellant Ryan’s motion to suppress and affirmed the judgment of sentence. Ryan appeals from the trial court’s order reaffirming the judgment of sentence.

The pertinent facts are as follows: On January 3, 1977 Detective Christopher Mower, a Philadelphia police officer, conducted an inspection of the titles and registrations of ownership of various vehicles at Lenny’s Used Car Lot in Philadelphia. During his inspection Detective Mower found a 1969 Lincoln Continental on the premises with a defaced vehicle identification number. Further investigation revealed that the vehicle had been reported stolen by its owner.

Berle Fabrican, the manager of Lenny’s Used Car Lot, informed Detective Mower that he had received the Lincoln from appellant Ryan, the owner of Connor’s Used Auto Parts, a junkyard in Conshohocken, Pennsylvania. Fabrican was taken to the Philadelphia Police Headquarters where he called Ryan. Detective Mower spoke to Ryan during the call; Ryan stated that Mower was mistaken in his belief that the Lincoln was stolen and that he would be able to produce the title but that this would require a few days.

Later that same day Detective Mower, Officer Kane of the Philadelphia Police Department and Trooper Taylor of the Pennsylvania State Police went to appellant Ryan’s junkyard and spoke to him concerning the stolen Lincoln found at Lenny’s Used Car Lot. At first Ryan offered the officers permission to search his junkyard for parts of the Lincoln, however, he immediately revoked his offer when the officers indicated they would accept it.

Detective Mower and Trooper Taylor then left Ryan’s junkyard and proceeded to the office of District Justice John T. Sachaczenski where Trooper Taylor obtained a search warrant to search Ryan’s junkyard for the transmission, body parts, title inspection sticker, or other identifiable parts from the stolen Lincoln automobile.

During the subsequent search of appellant Ryan’s junkyard the body of the stolen 1969 Lincoln was found. Record Suppression Hearing of November 18, 1980 at 27. The police officers also noticed a yellow 1975 Volkswagen parked on the grounds of Ryan’s junkyard with its serial number plate in plain view. Subsequent investigation revealed that the Volkswagen had also been reported stolen. There were also many other vehicles and parts of vehicles with missing serial numbers which the officers observed at Ryan’s junkyard in the course of their search.

Trooper Taylor recited the observations made in the course of the first search in his affidavit of probable cause for a second search warrant which he sought to permit a search of all the vehicles at appellant Ryan’s junkyard. District Justice Sachaczenski found probable cause for the second search warrant and it was served on Ryan on January 4, 1977. The second search of Ryan’s junkyard resulted in the seizure of numerous stolen vehicle parts which gave rise to the charges Ryan was convicted of instantly.

Appellant Ryan frames his first contention of error as follows:

Did the Superior Court of Pennsylvania’s directive that a new Suppression Hearing be conducted by the lower court and the conduct of the second Suppression Hearing by the Court of Common Pleas of Montgomery County improperly afford the Commonwealth a second bite at the same apple?

Brief for Appellant at 2.

The double jeopardy clause does not protect against retrial for the same offense if the conviction is set aside through the defendant’s procurement. Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980). Here, the second suppression hearing was held pursuant to the order of the Superior Court which resulted from Ryan’s prior appeal. Ryan procured the second suppression hearing by his appeal and he may not now complain that it was held.

Appellant Ryan frames his second contention of error as follows:

Did the Commonwealth’s failure to produce the informant, Beryl [sic] Fabrican, constitute a denial of defendant’s right to compulsory process?

Brief for Appellant at 2.

If the defense should be able to procure an eyewitness without the Commonwealth’s aid, the Commonwealth need not inform the defense of the witness’s whereabouts. The Commonwealth may be regarded as lacking the power to produce a witness whose testimony would be comparatively unimportant, cumulative, or inferior. Commonwealth v. Benson, 280 Pa.Super. 20, 37, 421 A.2d 383, 391-92 (1980).

An informant is not a material eyewitness when he was not present at the time and place of the search when contraband was discovered. Commonwealth v. Moretti, 280 Pa.Super. 167, 421 A.2d 458 (1980).

Appellant Ryan now complains that Berle Fabrican was not produced as a witness by the Commonwealth at the second suppression hearing held in the case and that its failure to do so denied Ryan his right to compel Fabrican to appear for the defense. Fabrican has disappeared since Ryan’s arrest in 1977 and attempts by police officers to contact him have been unsuccessful. Record Suppression Hearing of November 18, 1980 at 20-21.

Berle Fabrican was not an eyewitness to either search in the instant case. Any information he provided to the police was independently verified by Detective Mower during his telephone conversation with appellant Ryan during which Ryan falsely claimed rightful ownership of the stolen 1969 Lincoln. Record Suppression Hearing of November 18, 1980 at 19. Ryan apparently knew Fabrican well enough to send him a stolen car to attempt to sell; accordingly, he is in at least as good a position to produce Fabrican as the Commonwealth is. Additionally, Ryan presents no evidence that he even attempted to subpoena Fabrican.

Ryan frames his third contention of error as follows: Did the Commonwealth’s failure to produce the informant, Beryl [sic] Fabrican, constitute a failure to meet its’ burden of proof at the second Suppression Hearing?

Brief for Appellant at 2.

In order for the issuance of a search warrant to be constitutionally valid the issuing officer must reach the conclusion that probable cause exists at the time he issues the warrant. Such a finding is to be based upon the probability, not the prima facie showing, of criminal activity. Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981).

In the case at bar, the Commonwealth was able to establish the probability of criminal activity at appellant Ryan’s junkyard without presenting Berle Fabrican as a witness during the suppression hearing. The information that Berle Fabrican supplied to Detective Mower, that appellant Ryan claimed to be the rightful owner of the 1969 Lincoln automobile found at Lenny’s Used Car Lot, was confirmed by Ryan himself during his phone conversation with Detective Mower. Record Suppression Hearing of November 18, 1980 at 19. Berle Fabrican’s testimony would have been cumulative to that of Detective Mower in any event. The fact that the Commonwealth did not produce a witness who provided information corroborated, by the defendant himself cannot constitute a failure to show probable cause.

Appellant Ryan frames his fourth contention of error as follows:

Should the evidence seized pursuant to the two separate search warrants have been suppressed for any one or a combination of the following reasons therefore:
(A) Failure of the Commonwealth to meet its burden of establishing the admissibility of the challenged evidence.
(B) Failure of the search warrant affidavit to establish the reliability of the informant and the underlying circumstances from which he obtained his information.
(C) Accepting an inadmissible extrajudicial statement allegedly made by defendant as the sole source of corroboration of the information given to police.
(D) The use of ‘stale’ information in the affidavit in support of the search warrant.
(E) Failure to comply with Pennsylvania Rule of Criminal Procedure 2002.
(F) Failure to comply with Pennsylvania Rule of Criminal Procedure 2003(c).
(G) Failure to identify with particularity those items to be seized (second search warrant).
(H) Failure of the search warrant affidavit to provide facts from which it could be concluded that the items to be seized were ever located at the premises to be searched, or more importantly, were there at the time the search warrant was issued.

Brief for Appellant at 2-3.

On appeal from the denial of a suppression motion a reviewing court must consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Where the suppression court’s findings have ample support in the record they may not be disturbed on appeal. Commonwealth v. Taylor, 494 Pa. 399, 431 A.2d 915 (1981).

Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched. Affidavits for search warrants must be interpreted in a commonsense and realistic fashion. A magistrate’s determination of probable cause should be paid great deference by reviewing courts. Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980).

The first search warrant obtained by Trooper Taylor listed parts missing from the stolen 1969 Lincoln automobile as the items to be searched for at appellant Ryan’s junkyard. There can be no question that parts of a stolen car are connected with criminal activity.

In order to establish that the missing parts of the 1969 Lincoln would be found in the place to be searched (appellant Ryan’s junkyard) Trooper Taylor recited the following information in his affidavit of probable cause:

(1) The discovery of a stolen 1969 Lincoln automobile at Lenny’s Used Car Lot.

(2) The statement by the manager of Lenny’s Used Car Lot, Berle Fabrican, that the car had been received from Ryan, the owner of Connor’s Auto Parts.

(3) Appellant Ryan’s verification that he did indeed claim ownership of the Lincoln and, furthermore, would produce papers exonerating himself if given several days to do so.

(4) Ryan’s invitation to Detective Mower to come to his junkyard in order to straighten out the apparent misunderstanding.

(5) The subsequent visit of Detective Mower, Officer Kane, and Trooper Taylor to Ryan’s junkyard at which time Ryan initially offered to let the officers search his premises and then revoked his offer as soon as they indicated that they intended to accept it.

Based on the above-enumerated statements a reasonable man would be justified in finding a probability that the missing parts of the stolen 1969 Lincoln would be within appellant Ryan’s junkyard. Ryan claimed rightful ownership of a car that unquestionably did not belong to him; he was the owner of a junkyard, an enterprise that could easily be used to dissemble stolen vehicles and a likely repository for stolen vehicle parts; he obviously knew that the police were searching for parts from the stolen 1969 Lincoln from his previous telephone conversation with Detective Mower; and he displayed guilty knowledge in revoking his previously offered consent to the search of his junkyard.

The affidavit of probable cause for the second search warrant obtained by Trooper Taylor in the instant case recited that the officers had found parts of the stolen 1969 Lincoln in appellant Ryan’s junkyard and, furthermore, had seen a 1975 Volkswagen parked in plain view with its serial number visible through its windshield. A subsequent check of its registration number revealed that the Volkswagen had been stolen. The affidavit also stated that other vehicles and parts of vehicles with serial numbers missing were seen in Ryan’s junkyard during the first search. Based on the above-stated information Trooper Taylor identified all vehicles, parts of vehicles, and paperwork involving those vehicles at Ryan’s junkyard as items to be searched for and seized.

The affidavit of probable cause for the second search of appellant Ryan’s junkyard stated more than enough facts to show that the items sought were connected with criminal activity and that those items would be found in Ryan’s junkyard. During their initial search the police found one entire stolen car (the 1975 Volkswagen) and parts of another (the 1969 Lincoln); when coupled with the presence of other vehicles and parts without serial numbers at Ryan’s junkyard there is no question that there was a probability that extensive criminal activity was occurring there.

Appellant Ryan also complains that the service and execution of the two search warrants was defective and asks that all evidence seized under the warrants be suppressed on that basis. Ryan can point to no specific prejudice caused to him by the allegedly defective service and executions, however. Where a defendant’s rights are not prejudiced by a police officer’s failure to fully comply with the requirements concerning the execution and return of a search warrant a request to suppress the evidence seized is not justified. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979).

Appellant Ryan also alleges that Berle Fabrican, the manager of Lenny’s Used Car Lot, was an informant against him and that the Commonwealth failed to establish the reliability of Fabrican and the underlying circumstances from which he obtained his information. The information provided by Fabrican (that Ryan claimed ownership of the stolen 1969 Lincoln discovered at Lenny’s Used Car Lot) was verified by Ryan himself during the course of his telephone conversation with Detective Mower. Probable cause for the searches of Ryan’s junkyard was established independently of Fabrican’s statements.

Ryan also alleges that the statements he made to Detective Mower during their telephone conversation should be suppressed as he was not informed of his Miranda rights prior to questioning. This argument is not supported by the record. In the affidavit of probable cause for the first search warrant obtained in the case it is stated that Detective Mower informed Ryan that he did not have to say anything that would incriminate himself. Bearing in mind the requirement of Commonwealth v. Taylor, supra., that in an appeal from an order denying suppression we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted and that the lower court’s findings may not be disturbed if they are amply supported by the record, we reject Ryan’s claim.

Appellant Ryan argues that the information in the affidavits of probable cause for the search warrants was stale. Courts are reluctant to set a hard and fast rule as to what constitutes staleness of information for a search; such a determination must be made on a case by case basis. Properly recited facts indicating activity of a protracted and continuous nature make the passage of time less significant. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981).

In this case, the first search warrant was issued the same day Ryan falsely told Detective Mower that he had title to the stolen 1969 Lincoln and then refused to allow Mower and the other investigating officers to search his junkyard for parts of the Lincoln after previously inviting them to do so. Probable cause to believe that parts of the stolen Lincoln were at Ryan’s junkyard existed on the day the first search warrant was issued. Ryan’s argument that Berle Fabrican’s statement indicating that the stolen Lincoln had been at Ryan’s junkyard approximately seven weeks before the search invalidates the first search warrant for staleness ignores the fact that probable cause for the search was established quite apart from Fabrican’s assertions.

Appellant Ryan contends further that evidence seized pursuant to the search warrants should be suppressed for the Commonwealth’s alleged failure to comply with Pa.R.Crim.P. 2002 which provides:

Rule 2002. Purpose of Warrant

A search warrant may be issued to search for and to seize:

(a) contraband, the fruits of a crime, or things otherwise criminally possessed; or
(b) property which is or has been used as the means of committing a criminal offense; or
(c) property which constitutes evidence of the commission of a criminal offense.

Pa.R.Crim.P. 2002.

There can be no doubt that the vehicle parts seized under the two search warrants in the instant case were both things criminally possessed and evidence of the commission of a criminal offense.

Appellant Ryan claims that the first search of his junkyard was not conducted in accordance with Pa.R.Crim.P. 2003(c) which provides that “[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such night time search.” Pa.R.Crim.P. 2005(e) establishes that a nighttime search is one conducted between the hours of 10 p. m. and 6 a. m.

Ryan alleges that the first search of his junkyard was conducted at approximately 10:00 p. m. Brief for Appellant at 32. While no receipt or inventory of seized items was filed in the instant case listing the time of the search, the affidavit of probable cause for the warrant recited that Ryan had falsely claimed ownership of the stolen Lincoln, was aware of the purpose of the officers’ visit to his junkyard, and would attempt to dispose of the remaining parts now that he knew the police were investigating. If the police officers had waited until the next morning to search appellant Ryan’s junkyard Ryan would have had the entire night and the cover of darkness within which to dispose of any incriminating evidence. The affidavit of probable cause, therefore, does show a reasonable cause for nighttime search.

In the second search warrant Trooper Taylor listed the items to be searched for or seized as, “All vehicles on the property [Ryan’s junkyard] including those with and without serial numbers. Any paperwork involving vehicles. Any parts of vehicles with or without serial numbers.”

Probable cause for such a broad search existed as the investigating officers had already found one stolen car and parts of another as well as numerous other vehicles and parts of vehicles without serial numbers at Ryan’s junkyard during their first search. There was a probability that all of the vehicles, parts, and paperwork at Ryan’s junkyard were involved in criminal activity as required by Commonwealth v. Council, supra., and a request to search for and seize all such items was not too general.

In his final challenge to the validity of the search warrants, Ryan asserts that there was insufficient reason to conclude that the missing parts of the stolen 1969 Lincoln would be found at his junkyard on the day the first search warrant was issued. As we previously mentioned, however, Ryan falsely claimed ownership of the stolen Lincoln, offered to let the investigating officers search his junkyard for the missing parts of the Lincoln, and then revoked his offer as soon as he saw that the officers intended to accept it. Probable cause to believe that the items to be seized were at Ryan’s junkyard did exist at the time the first search warrant was issued. All of Ryan’s challenges to the search warrants are meritless.

Appellant Ryan phrases his fifth contention of error as follows:

Should the Commonwealth’s failure to produce the affiant on either one of the search warrants render it incapable of meeting its burden of proof?

Brief for Appellant at 3.

As mentioned previously, probable cause for the issuance of a search warrant is based on the probability of criminal activity. Commonwealth v. Tolbert, supra. When a motion is made to suppress evidence the burden is on the Commonwealth to establish by a preponderance of evidence that the challenged evidence is admissible. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Both Detective Mower and Officer Kane testified as to the probable cause for the search warrants issued. The Commonwealth met its burden of showing probable cause for the searches. Our research has failed to uncover any requirement that the affiant to a search warrant testify at a suppression hearing challenging that warrant.

Appellant Ryan frames his next eight contentions of error as follows:

1. Should the defendant’s Motion for Severance have been granted?
2. Should a new trial have been granted by reason of the highly prejudicial testimony, over objection of defense counsel, that defendant elected merely to exercise his constitutional right to insist that the police obtain a search warrant before exploring his premises?
3. Should certain photographs offered into evidence by the Commonwealth have been rejected?
4. Should defense counsel have been permitted to offer demonstrative evidence attacking the credibility of the Commonwealth’s chief prosecutorial witness suspected of possessing an ulterior motive for pursuing defendant?
5. Did the remarks repeatedly made by the Assistant District Attorney during his summation to the jury deprive the defendant of a fair and impartial trial?
6. Did the Court mis-state the applicable law in its charge to the jury or confer an unfair advantage on the Commonwealth in reviewing the evidence?
7. Should a new trial have been granted by reason of after-discovered evidence which would clearly exculpate the defendant on at least one of the indictments?
8. Was there sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt?

Brief for Appellant at 3-4.

Ryan concedes that these issues were presented to the superior court in his prior appeal of this case. Brief for appellant at 37. In remanding the instant case to the superior court the supreme court specifically ordered the superior court to decide whether Ryan was to be granted a new trial or only a new suppression hearing. The superior court ordered that Ryan was to be granted only a new suppression hearing and that if the lower court found that the evidence seized under the challenged warrants should not be suppressed, then the judgment of sentence would stand affirmed. In so holding the superior court unquestionably rejected all of Ryan’s non-suppression claims.

Judgment of sentence and order of court affirmed.