author: CIRILLO, Judge: SPAETH, Judge,

text:
    464 A.2d 388
    COMMONWEALTH of Pennsylvania v. Antonio COLON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1982.
    Filed July 29, 1983.

      Louis Sherman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

At 10:14 p.m. on April 10, 1977, Philadelphia Police responded to a silent alarm going off in a bar on North Second Street in Philadelphia. They found Antonio Colon and a man named Martinez hiding on the first-story roof of the bar near a place where the second-story wall of the bar had been broken in. The police found marked bills on Martinez which the owner of the bar later identified as money kept in the bar for use in the juke box. After a trial by stipulation on December 12, 1979, Judge Thomas A. White found Colon guilty of burglary and conspiracy. Colon’s post-verdict motions were denied and he was sentenced to concurrent terms of three years’ probation. Colon appeals, claiming that his right to a speedy trial was violated. Pa.R.Crim.P. 1100, 42 Pa.C.S.

-1-

At the outset, the Commonwealth urges us to quash Colon’s appeal for failure to comply with the Rules of Appellate Procedure. Indeed, the brief prepared by appellant’s counsel fails utterly to conform with the most basic rules governing brief-writing. Rule 2111(a), 42 Pa.C.S., provides:

General rule. The brief of the appellant ... shall consist of the following matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of the questions involved.
(4) Statement of the case.
(5) Summary of argument.
(6) Argument for appellant.
(7) A short conclusion stating the precise relief sought.
(8) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.

Rules 2114 through 2119 describe in detail the required content of each of the matters listed in Rule 2111(a). Appellant has violated each and every one of these rules. His brief consists of two sections, one labelled “Question,” the other “Index/History of the Case.” The “Question” is not a question at all, but a strange admixture of argument and fact. The “History of the Case” is hardly distinguishable in content from the “Question.” Both sections contain misstatements and confusions of fact. Had we not availed ourselves of the Commonwealth’s brief and the record of the post-verdict motions hearing in the trial court, we would be unable to determine what appellant’s Rule 1100 argument is. The defects in appellant’s brief are substantial; we have not hesitated to quash appeals on the basis of similarly defective briefs. E.g., Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978). See Pa.R.A.P. 2101, 42 Pa.C.S. However, appellant’s Rule 1100 argument was diligently presented and preserved at every stage of the trial proceedings. By referring to the transcript of the post-verdict motions hearing, we can formulate precisely the issues appellant attempts to pursue on appeal: he seeks to challenge the validity of two extensions granted to the Commonwealth under Pa.R.Crim.P. 1100(c). It would be unjust to quash his appeal on the grounds of appellate counsel’s derelictions, and, in our discretion, we will decide the case on the merits. See Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978).

The procedural history of this case is long and tortuous. After arresting appellant, the police on April 11, 1977, filed a complaint charging him with burglary, theft, and conspiracy. Therefore, the Commonwealth had until October 10, 1977, to bring him to trial. Pa.R.Crim.P. 1100(a)(2); 1 Pa.C.S. § 1908. Obviously, the trial date of December 12, 1979, was far beyond the original Rule 1100 run date. The rule mandates that a defendant be discharged unless all periods of delay beyond the run date are accounted for either by an extension granted to the Commonwealth pursuant to Rule 1100(c), or by an exclusion of time under Rule 1100(d). Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). The Commonwealth applied for its first extension in this case on August 1, 1978. Although the record is scanty on this point, it appears that appellant had made himself unavailable for much of the intervening time. At the hearing on the Commonwealth’s first extension petition on April 11, 1979, the court excluded 607 days under Rule 1100(d). The court calculated an amended run date of June 6, 1979, and also granted an extension to that date. Eventually, appellant’s case was scheduled- to be tried on June 5, 1979. When the case was. called that morning, however, neither appellant nor the complaining witness, each of whom had been duly notified of the trial date, was present in court. The court issued bench warrants. Appellant appeared late, and the warrant bn him was withdrawn; the warrant on the complainant was executed, and he was brought in. However, by that time, appellant’s case had been passed, and the court was unable to try him that day. On June 6, the Commonwealth again petitioned for an extension. At a hearing held on July 10, 1979, the court, pursuant to Rule 1100(c), granted the Commonwealth an extension to Monday, July 16, 1979. Up to this point, appellant challenges neither the propriety of the extensions granted to the Commonwealth nor the ex-cludability of the 607 days for which the court found him unavailable.

Trial was rescheduled for July 12, 1979. This time appellant did not appear for trial. He was in prison and was not brought down to court. The next day, the Commonwealth petitioned for a third extension, alleging that it could not bring appellant to trial before the run date despite its due diligence. On August 2, 1979, the court found that the Commonwealth had exercised due diligence, and granted the Commonwealth a third extension to September 13, 1979. Appellant’s first contention on appeal is that the Commonwealth was not entitled to the August 2 extension, and that consequently he should have been discharged.

A court may grant the Commonwealth an extension of time in which to commence trial if the Commonwealth cannot bring a defendant to trial within the prescribed period despite due diligence. Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981). The burden is on the Commonwealth to prove by a preponderance of the evidence that it has met the requirements of Rule 1100(c). Id. Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). At the extension hearing of August 2, the court took judicial notice of the docket entry of July 12 indicating that appellant had not been brought down from prison. The Commonwealth’s attorney argued that he had requested a forthwith bringdown that day upon learning of appellant’s incarceration. The court noted that there was nothing about the Commonwealth’s request in the docket, but treated the fact that appellant had not been brought down as “court delay.” The court then found due diligence on the part of the Commonwealth and extended the run date to September 13. Appellant contends to the contrary, that the fact he was not brought down to court for his trial demonstrates a lack of due diligence by the Commonwealth, entitling him to discharge. We disagree with appellant’s conclusion.

Implicit in the trial court’s ruling that “judicial delay” accounted for appellant’s absence on July 12 is a finding that officers of the court, not the Commonwealth, bore the responsibility for securing appellant’s presence at trial. This point was hotly contested at the post-verdict motions hearing, but the trial court never explicitly resolved the question. However, on the basis of additional facts which came to light at the hearing, we conclude that appellant himself was responsible for his absence on July 12, and that the Commonwealth would have been entitled to exclude time under Rule 1100(d), regardless who is charged with bringing defendants down from prison in Philadelphia.

As of March 21, 1979, appellant had been free on bail. When he appeared, late, for trial on June 5 (and the bench warrant on him was withdrawn), his “probation officer” was in the courtroom. After failing to reach appellant’s case, the court continued it to July 12. Appellant then was taken into custody on a “V.O.P. detainer.” Neither the Commonwealth’s nor the court’s files on appellant reflected the fact that he had been arrested, and there is no indication anywhere in the record why a probation detainer was outstanding on him as of June 5. Obviously, though, appellant’s arrest on the detainer had nothing to do with this case, for probation is a post-conviction, not a pre-trial, status. In any event, appellant remained in custody through July 12, his trial date.

As a condition of being admitted to bail, a person obligates himself to “appear before the issuing authority or court at all times required until full and final disposition of the case.” Pa.R.Crim.P. 4013(a). When a defendant who'is on bail and who has notice of a scheduled court proceeding in his case fails to appear in court at the appointed time, he has violated the conditions of bail, and the Commonwealth is entitled to count any resulting period of delay as excludable time under Rule 1100(d)(1). Commonwealth v. Cohen, 481 Pa. 349, 392 A.2d 1327 (1978); Commonwealth v. Bedsaul, 298 Pa.Super. 174, 444 A.2d 717 (1982). Furthermore, the delay is excludable even without a showing by the Commonwealth that it has exercised due diligence to locate a defendant. As the Court said in Cohen,

Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd.

Id., 481 Pa. at 355-56, 392, A.2d at 1331.

Appellant’s obligation to appear for trial on July 12 did not change when he was incarcerated. In Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982), we held that a defendant on bail has an obligation under Rule 4013(c) to notify the Commonwealth of his change of address upon being incarcerated. In Williams, the defendant, who was on bail, failed to appear for his preliminary hearing in Delaware County on September 4, 1979. On January 17, 1980, he was imprisoned in Philadelphia County on unrelated charges. The Delaware County authorities did not learn of the defendant’s whereabouts until March 31, 1980, and did not obtain custody of him until April 29, 1980. We excluded from our Rule 1100 computation the entire period of time between the defendant’s failure to appear and his return to Delaware County. We held that the Commonwealth was not required to demonstrate due diligence to locate the defendant in the Philadelphia jail, since the defendant had violated bail by not informing the appropriate authorities he was there.

The Williams analysis does not change for this case simply because appellant was incarcerated in the same county where the charges originated. We have recognized that authorities in a given county often detain defendants without notifying the county’s prosecuting officers; and that in such circumstances the prosecutors may be unaware of a defendant’s whereabouts despite due diligence. Commonwealth v. McDermott, 280 Pa.Super. 535, 421 A.2d 851 (1980); Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978). Cf. Commonwealth v. Hinton, 269 Pa. Super. 43, 409 A.2d 54 (1979) (defendant found unavailable for period of 173 days, 165 of which he was in jail in same county where charges were pending).

We were presented with facts remarkably similar to those of the instant case in Commonwealth v. Clark, 248 Pa.Super. 184, 186-87, 374 A.2d 1380, 1381 (1977), in which Judge Spaeth wrote:

Appellant’s trial was originally set for November 12, 1974, well within the 270 day period. The prosecutor and appellant’s counsel appeared in court that day but appellant did not. Appellant’s absence was unexplained, and when the prosecutor suggested that appellant was a fugitive, the court agreed and declared him a fugitive. In fact, however, appellant was in jail in the same county, under [unrelated] charges____ Appellant had received notice of his November 12 trial date but had made no effort to inform his counsel, the prosecutor, or the warden regarding his required appearance in court for trial. Although there was some evidence that someone in the District Attorney’s office knew that appellant had been rearrested and was in jail, evidently the prosecutor in charge of the present case did not.

(Footnotes omitted). Judge Spaeth remonstrated that “a defendant may [not] hide himself away in some crevice of the criminal justice system,” and that such conduct would support a finding of unavailability under Rule 1100(d)(1). In Clark we remanded for a finding on whether the Commonwealth had' exercised due diligence to ascertain the defendant’s whereabouts. Such a remand is unnecessary in the instant case. It appears from the record before us that probation officers had appellant detained on June 5 for violating his probation on an unrelated case; there is no evidence indicating that anyone alerted the district attorney to appellant’s detention, and we have no basis upon which to speculate that someone might have. Since, for all the prosecutors knew, appellant was free on bail, and since appellant violated two bail conditions by failing to inform the district attorney of his incarceration and failing to appear for trial on July 12, we hold that appellant was unavailable within the meaning of rule 1100(d)(1). Commonwealth v. Cohen, supra; Commonwealth v. Williams, supra; Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982).

The problem facing the Commonwealth in this case was what to do once it became clear appellant would not be tried on July 12. Rule 1100(d)(1) “specifically excludes from the ‘run time’ ‘such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney.’ ... It is obvious that in many cases the defendant, by his unavailability, can occasion a delay which is much greater than the actual time of his unavailability.” Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982). In Perry, where the defendant had neglected to appear on time for his trial and the case had been passed and rescheduled for twenty-two days later, we held that the entire twenty-two day delay could be excluded under Rule 1100(d)(1). Similarly, in Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982), the Supreme Court attributed to the defendant a period of delay exceeding the time actually consumed by defense-requested continuances. The amended Rule 1100 run date on Robinson’s case was April 24, 1975. On April 23, Robinson waived the running of the Rule until May 23, 1975. On May 23, the trial court disposed of Robinson’s pre-trial motions. Robinson then requested and received a continuance to June 30, 1975, also waiving his Rule 1100 rights to that day. On June 30, the court put Robinson’s case on “backup” status behind two other cases. Robinson’s case finally proceeded to voir dire on July 16. Meanwhile, on July 15, Robinson moved to dismiss the charges pursuant to Rule 1100(f), on the grounds that his waiver had been valid only until June 30, and that the Rule had since run. The trial court denied the motion to dismiss; on appeal, the Superior Court reversed, finding a Rule 1100 violation, but the Supreme Court reversed, and reinstated the trial court’s order. Justice Roberts, writing for a unanimous Court with one justice concurring in result, said:

By making this case turn on the issue of whether appellee waived his Rule 1100 rights during the sixteen-day period of delay between the expiration of the second defense-requested continuance and the commencement of voir dire, both the post-verdict court and the Superior Court assumed that, absent a valid waiver of Rule 1100 rights by appellee, Rule 1100 does not allocate the responsibility for the sixteen-day delay to appellee. At the time of trial, section (d) of Rule 1100 provided:
“In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
(1) the unavailability of the defendant or his attorney;
(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be-so excluded.”

In interpreting subdivision (1), this Court has made it clear that the period of excludable days is not necessarily measured by the length of time that a defendant was “unavailable.” Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant’s unavailability. “If -the ‘unavailability’ results in an actual delay in the proceedings, that delay is automatically excluded.” Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). So, too, under subdivision (2) it must be concluded that although a defense-requested continuance which exceeds thirty days serves as a triggering device for exclusion, the number of days to be excluded is not governed solely by the length of the continuance. Rather, as under subdivision (1), the number of days to be

excluded is that “period of delay ... as results from” the continuance. Cf. Commonwealth v. Wade, 475 Pa. 399, 405-406, 380 A.2d 782, 785 (1977) (excludable delay caused by open-ended continuance measured from date of continuance request to end of delay). Here, therefore, the critical question is whether the sixteen-day period of delay “resulted] from” a defense-requested continuance.
On this record, it appears'that on May 23, 1975, upon the close of pre-trial motions, this matter would have proceeded to trial if appellee had not requested and been granted a second continuance. That continuance necessitated’ the placement of the matter on “backup” status behind two cases. Consistent with the court’s business, those two cases were disposed of without undue delay, in sixteen days, and the trial of this case commenced immediately thereafter. The sixteen-day period during which the matter was on “backup” status must, therefore, be attributed to appellee.

498 Pa. at 386, 446 A.2d at 898-99.

Thus, the Commonwealth in the instant case would have been entitled to exclude any period of delay resulting from appellant’s failure to attend trial on July 12—but at that time, there was no way for the Commonwealth to gauge the extent of the delay that would result. The Commonwealth solved its problem by filing, on July 13, a petition for an extension under Rule 1100(c). Appellant now would have us hold that the Commonwealth failed to prove its entitlement to the extension because it did not demonstrate due diligence in attempting to get the case into a courtroom on July 13 or July 16, the two working days remaining before the run date. We decline to adopt such an illogical interpretation of the Rule’s requirements.

The issue at a Rule 1100(c) hearing is whether the Commonwealth has in fact been duly diligent in attempting to bring a defendant to trial. The due diligence standard demands that the Commonwealth make reasonable efforts, not that every conceivable effort be made. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Com monwealth v. Banner, 295 Pa.Super. 87, 440 A.2d 1389 (1982). Additionally, we have recognized that defense-caused delays may obstruct diligent efforts by the Commonwealth to try an accused, and may therefore justify an extension under Rule 1100(c). Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977). Here, the Commonwealth had a trial date; on that date the Commonwealth appeared with its witnesses, ready to try appellant. All the various forces necessary to try a criminal case had been mustered—all but one, the defendant, who failed to appear for his own trial, in violation of his bail bond and through no fault of the Commonwealth’s. By narrowly focussing on the Commonwealth’s diligence in the two days remaining before the run date, we would ignore “the realistic complexities of a justice system operating in a populous county.” In Philadelphia, where this case arose, it would have been tantamount to a physical impossibility to have appellant’s case rescheduled in those two days. An anonymous Philadelphia trial judge brought the point home colorfully in the following words: “I’ll analogize it to a baseball game. You get up, take your three swings. You don’t get up again until eight other guys bat, and that’s the way it is in Philadelphia.” Quoted in Commonwealth v. Delpiano, 290 Pa.Super. 510, 513-14 n. 3, 434 A.2d 1260, 1262 n. 3 (1981). Appellant had his three swings in this case, and he should not be allowed two more. A similar situation occurred in Commonwealth v. Jackson, 269 Pa. Super. 249, 409 A.2d 873 (1979), in which the defense counsel’s continuance had left the Commonwealth with one day in which to begin the defendant’s trial before the run date. The Commonwealth requested an extension, which the trial court granted solely on the basis of the following exchange at the extension hearing:

MR. GOODMAN: Your honor, if I could point out that Mr. Fitzgerald [appellant’s counsel] filed his petition for a continuance or a pass on October 27, and for a period between October 27 and November 14. The 180th day in this case was November 15, 1977. According to Mr. Fitzgerald’s calculation, that would give the Commonwealth exactly one day to get the case into a courtroom.
THE COURT: Yes, which in our county is totally out of the question.

269 Pa.Super. at 254, 409 A.2d at 875.

Recognizing the dilemma posed by delays which leave the Commonwealth hard up against an impending run date, we have refused to hold the Commonwealth strictly accountable for every day between the failed trial date and the run date. We have focussed instead on the Commonwealth’s diligence in securing a timely trial date in the first place, and in readying itself to proceed on that date. Thus, in Commonwealth v. Tann, 298 Pa.Super. 505, 444 A.2d 1297 (1982), trial had been scheduled for April 7, 1981, four working days before the run date on April 13. When the prosecutor phoned the complaining witness the night before the trial to remind him of his obligation to be in court the next day, the witness’s mother told the prosecutor that the witness could not attend the trial due to a mid-term high school examination the next day. On April 10, 1981, the Commonwealth petitioned for an extension under Rule 1100(c). We reversed the lower court orders denying the petition and dismissing the defendant. We held that, on the facts given, the Commonwealth’s due diligence had been established. Similarly, in Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981), trial had been scheduled for June 6, 1979, with a Rule 1100 run date of June 7. Despite diligent efforts by the Commonwealth to have the complaining witness appear for trial, he elected instead to attend his aunt’s funeral in Maryland that day. The Commonwealth that same day filed its Rule 1100(c) petition, which was granted. After the trial court granted the defendant’s motion in arrest of judgment for a violation of Rule 1100, we reversed, holding that the Commonwealth’s due diligence had been established. In neither of these cases did we mention the fact that the Commonwealth’s proof at the hearings had been silent regarding the interval between the trial date and the run date. Accord, Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982). See also Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978) (on scheduled trial date, case not reached due to court backlog; thereafter case “remained on the assignment board” for fifty-three days until run date; held, Commonwealth’s due diligence established).

In Commonwealth v. Mayfield, 469 Pa. 214, 220, 364 A.2d 1345, 1348 (1976), in which the Supreme Court set out the framework for obtaining a Rule 1100(c) extension, they said, “The rule recognizes that ‘due diligence’ is the most that should be demanded from the prosecutor and that if despite such efforts, he cannot prepare for trial within the prescribed period, an extension is permissible.” (Emphasis added). In the present case, neither the Commonwealth’s nor the court’s unreadiness to proceed to trial was at issue, since both were prepared to try the case on July 12, 1979. It was the appellant himself who prevented trial from commencing that day. As justice Nix said in his Opinion in Support of Affirmance in Commonwealth v. Brightwell, 486 Pa. 401, 407, 406 A.2d 503, 505 (1979), “we know of no case wherein the right to a speedy trial has been violated when the cause for delay has been properly attributable to the defendant. On the contrary, where the defendant has deliberately caused the delay, he has been prevented from taking advantage of his own wrong.” Correspondingly,

[t]he administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth ____
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Genovese, 493 Pa. 65, 69, 72, 425 A.2d 367, 370, 371 (1981). We have consistently followed these principles in deciding Rule 1100(c) cases. E.g., Commonwealth v. Gilliam, supra; Commonwealth v. Harrison, 293 Pa.Super. 211, 438 A.2d 612 (1981); Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977); Commonwealth v. Brown, 251 Pa.Super. 179, 380 A.2d 436 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). For these reasons, we hold that the extension granted to the Commonwealth on August 2, 1979, was proper.

As we said, the extension ran until September 13, 1979. On the scheduled trial date of September 11, the public defender .informed the court that appellant was absent participating in a drug program in Newark, New Jersey. The court issued a bench warrant to insure that appellant would not be absent again. On September 12, 1979, the Commonwealth filed its fourth extension petition, which the court granted after a hearing on October 19, 1979. The extension ran until October 29, 1979, with trial scheduled for October 25. In the meantime, appellant was still in New Jersey in the drug program, but the ROR warrant service unit, instead of serving the warrant on appellant there, had mailed notice to his Pennsylvania address. Appellant did not appear in court on October 25. The next day the Commonwealth petitioned for its fifth extension, which the court granted after a hearing on November 30, 1979. Appellant contends that the fifth extension was improper.

We are not privy to the operations of the court’s warrant service unit, or to the difficulties that confronted its attempt to serve a warrant out of state. But it is clear that the unit’s failure to serve the court’s warrant does not reflect adversely on the Commonwealth’s exercise of due diligence in attempting'to try appellant on October 25, as appellant would have us hold. Just as the Commonwealth is not responsible for bringing defendants who are free on bail into court for trials, neither is it responsible for serving the court’s warrants. Since the court had ordered its own officials to see to it that appellant finally would attend his own trial, the Commonwealth’s reliance on the efforts of the court officials cannot be faulted. In any event, the public defender’s office was aware of the October 25 trial date; it would offend our sense of justice to hold the Commonwealth accountable for retrieving appellant from New Jersey when his own counsel apparently made no effort to notify him of his court obligations. Cf. Commonwealth v. Bundridge, 268 Pa.Super. 1, 407 A.2d 406 (1979) (fact that defense counsel had notice of trial date .countered appellant’s assertion that he could not be considered unavailable because he did not have personal notice). The Commonwealth did what it reasonably should have done to try appellant before the run date, and it was entitled to the fifth extension.

The monumental delay between the filing of the complaint against appellant and his eventual trial can now be seen in a different light. Two years of the delay remains somewhat a mystery, except we do know that appellant caused it. Even after emerging from his unexplained latency, appellant continued to dilate the case with long bouts of unavailability. We are reminded of the words of President Judge G. Thomas Gates of Lebanon County, speaking for this Court in Commonwealth v. McCulley, 270 Pa.Super. 115, 120 n. 7, 410 A.2d 1276, 1278 n. 7:

It was the appellant who caused all the delay and now complains that his rights to a speedy trial have been denied. It is rather difficult to understand that a man is entitled to a dismissal of serious criminal charges on the grounds that his precious right to a speedy trial was denied to him when the facts demonstrate unequivocally that he probably did not want a trial at all, much less a speedy one, and that the Commonwealth was at all times prepared to proceed and afford him his precious right, but was frustrated by the defendant’s conduct in either being unavailable or asking for a continuance in order to secure private counsel. Sometimes at law we overlook the fact that we should interpret the law so that it makes at least the impression of containing a little common sense.

In our common-sense interpretation of Rule 1100, appellant was not entitled to be discharged.

Accordingly, we affirm.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I believe that appellant should be discharged because the Commonwealth failed to exercise due diligence to bring him to trial within the period specified by Pa.R.Crim.P. 1100.

-1-

In addressing the Commonwealth’s argument that the appeal should be quashed for noncompliance with Pa.R. App.P. 2111(a), the majority states, “Had we not availed ourselves of the Commonwealth’s brief and the. record of the post-verdict motions hearing in the trial court, we would be unable to determine what appellant’s Rule 1100 argument is.” At 417. I disagree. It is true that, instead of using the heading, “Statement of Questions Involved,” Pa. R.A.P. 2111(a)(3), 2116, appellant’s counsel uses, “Question.” Instead of dividing his argument into “Statement of the Case,” “Summary of Argument,” and “Argument,” Pa.R.A.P. 2111(a)(4), (5), and (6), counsel has a single section, entitled “Index,” with, immediately beneath, “History of the Case.” There follow a statement of the facts and appellant’s argument, with appropriate citations. But, appellant’s argument, though not elegantly stated, is easily grasped. Indeed, the Commonwealth’s assertion, Brief for Commonwealth at 2, that it “is put to a serious disadvantage in determining what precise issues are before this Court,” is belied by its brief, which fully responds to appellant’s argument.

I therefore find no merit in the Commonwealth’s argument that the appeal should be quashed, and I concur in the majority’s conclusion to address appellant’s argument. At

In addressing appellant’s argument, the majority relies, in part, on the transcript of the post-verdict motions hearing. At 420. I believe that this reliance is improper in light of the Supreme Court’s decision in Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980) (per curiam). There the Court held that the Commonwealth’s entitlement to an extension must be determined on the basis of the record made at the extension hearing, and that if the Commonwealth has failed to establish its right at the extension hearing, it will not be permitted a “second bite.”

I am cognizant of the suggestion in Commonwealth v. Carr, 292 Pa.Super. 137, 436 A.2d 1189 (1981) (LIPEZ, J., dissenting), that the Commonwealth may take a second bite if the bite is at the post-verdict motion stage instead of—as in Abridge—on remand. This suggestion, however, was dictum; the issue in Carr was whether Abridge should be applied retrospectively, and the holding was that it should be applied only prospectively. In Carr that holding resulted in an affirmance, for there, when the lower court permitted a second bite, Abridge had not been decided. Here, in contrast, the post-verdict motion hearing was held four months after Abridge had been decided.

To be sure, if dictum is found persuasive, it may in a later case be adopted as a holding. But I do not find the dictum in Carr persuasive, for the reasoning offered in its support is inconsistent with, and therefore its potential authoritativeness is precluded by, the reasoning of the Supreme Court in Abridge.

In Carr the majority of the court reasoned that “the entire record,” by which it meant the record including the record of the post-verdict motion hearing, “demonstrates compliance with Rule 1100,” 292 Pa.Super. at 140 n. 1, 436 A.2d at 1191 n. 1, and that “[Abridge ] does not require appellate courts to turn a blind eye to a record establishing compliance with Rule 1100 and to discharge a properly convicted defendant despite actual compliance with Rule 1100 as established by the record certified for review,” 292 Pa.Super. at 140, 436 A.2d at 1191. The difficulty with this reasoning is that it begs the question: If there has been “compliance with Rule 1100,” then neither Abridge nor any other case requires “discharge [of] a properly convicted defendant.” The question, however, is whether there has been compliance with Rule 1100. Abridge dispositively answers this question by holding that there has not been such compliance when the Commonwealth fails to prove at the extension hearing that it is entitled to an extension.

The holding in Abridge was in no sense novel—and the Supreme Court emphasized the lack of novelty by announcing its decision in the form of a three paragraph per curiam order. It was early established that under Rule 1100, a motion for an extension may be granted only upon the basis of a record that supports findings showing that the extension is warranted. Thus in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the Court held that “[h]enceforth, the trial court may grant an extension under Rule 1100(c) only upon a record showing .. [etc.]” Id., 469 Pa. at 222, 364 A.2d at 1349-50 (emphasis added). Consequently, an extension granted without a record having been made at the extension hearing cannot be characterized as having been granted “in compliance with” the rule. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). Making the record later cannot cure the failure to comply with the rule. And this is equally true whether the record is made later at the post-verdict motion stage or later after remand. For the terms of the rule and the cases implementing it preclude any nunc pro tunc procedure, or, to use the Supreme Court’s phrase in Abridge, any “second bite.”

The dictum in Carr suggesting that nevertheless a “second bite” is permissible, if it is taken at the post-verdict motion stage instead of on remand, is therefore inconsistent with the terms of the rule and settled authority.

The dictum is also inconsistent with settled policy. The policy underlying Rule 1100 and the cases implementing it is to ensure the speedy disposition of criminal cases. Thereby protection is extended both to the defendant’s constitutional right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the “overriding interest” of the public, Commonwealth v. Mayfield, supra, 469 Pa. at 221, 364 A.2d at 1349 (citing ABA Standards Relating to Speedy Trial, § 1.1 (commentary) (Approved Draft, 1972), where it is said that “[f]rom the point of view of the public, a speedy trial is necessary to preserve the means of proving the charge, to maximize the deterrent effect of prosecution and conviction, and to avoid, in some cases, an extended period of pretrial freedom by the defendant during which time he may flee, commit other crimes, or intimidate witnesses”.) This policy is implemented by requiring that the Commonwealth prove, before the trial, at the extension hearing, that it is entitled to an extension—in other words,' that it is consistent with both the defendant’s and the public’s interests to try the case not then but later. To permit the Commonwealth to prove after the trial that it was entitled to an extension—to give it a “second bite”—would be inconsistent with and would frustrate both the defendant’s and the public’s interests. Trials would be conducted under, a cloud of doubt as to whether they were legal; no one could know whether they were legal, for no record and no findings would exist showing that they were. Disorder would be engendered in the courts. Instead of the propriety of an extension being resolved in the pre-trial motions court, thereby enabling cases to be scheduled in a rational manner, resolution would be transferred to the post-verdict motions court, which would have to hold a second, unnecessary, hearing. Frequently, this hearing would occur many months after the trial itself had been held. (Here, as a specific example, the trial was held on December 12, 1979, and the post-verdict motions hearing was held on October 27, 1980.) Should the post-verdict court conclude that the extension should not have been granted, the result would be not only a greatly delayed disposition of the case, but the expense and waste arising from having conducted the trial, all to the public’s great disadvantage. Plainly, the only fair, orderly, and economical way to proceed is to decide before trial whether an extension is warranted. That is the way specified by Rule 1100(c), and it is the way insisted upon by Abridge and many other cases, such as Commonwealth v. Ehredt, supra, and the cases there cited. Therefore, we should address appellant’s argument solely on the basis of the record developed at the extension hearings held on August 2 and November 30, 1979.

-3-

(a)

The first challenged extension was granted after a hearing held on August 2, 1979. Trial had been scheduled for July 12, 1979, but appellant had not appeared for trial. The run date then in effect was July 16, 1979. The majority justifies its' conclusion that the August 2 extension was properly granted on “the basis of additional facts which came to light at [appellant’s post-verdict motions] hearing ____” At 420. For the reasons just stated, I do not believe that the record developed at that hearing should be considered in addressing appellant’s argument. A review of the transcript of the August 2 extension hearing compels the conclusion that the extension should not have been granted.

To be entitled to an extension, the Commonwealth must prove that it has attempted diligently to bring the defendant to trial within the prescribed time period, and that obstacles imposed by the administration of court business made it impossible to do so. Commonwealth v. Mayfield, supra. The standard of due diligence requires the Commonwealth to take affirmative steps to secure the defendant’s presence at trial. See Commonwealth v. Ashford, 277 Pa.Super. 400, 419 A.2d 1206 (1980) (error to grant motion for extension where record devoid of evidence demonstrating efforts to serve warrant or to notify him by telephone or mail). The Commonwealth must prove these facts by a preponderance of the evidence. Commonwealth v. Ehredt, supra; Commonwealth v. Antonuccio, 257 Pa. Super. 535, 390 A.2d 1366 (1978).

At the extension hearing, the Commonwealth neither alleged the existence of nor offered evidence tending to establish that it had attempted prior to July 12, 1979, in any way, to locate appellant or to arrange for his appearance for trial on that date. Appellant’s attorney contended at the hearing that the District Attorney had been notified in advance of the trial date that appellant was incarcerated, and that the Commonwealth therefore “should have ordered a bring down prior to the date of the trial.” N.T. 8/2/79 at 2. The assistant district attorney did not deny notification but only asserted that upon noting appellant’s absence from the courtroom on July 12, a forthwith bring-down was requested but that the court refused to order it. Id. No evidence was presented in support of this assertion, and the hearing transcript casts doubt on it, for the hearing judge stated that “[t]here is nothing about that here ...,” and he indicated that the only notation on the court’s records was “7-12, the defendant was not brought down.” Id.

I cannot conclude on the basis of this record that the Commonwealth made any attempt to secure appellant’s presence at trial on July 12, either before the trial date or upon noting appellant’s absence from the courtroom. The mere fact that appellant was incarcerated did not excuse the Commonwealth from the obligation to take affirmative steps to secure his presence. Cf. Commonwealth v. Smith, 274 Pa.Super. 229, 418 A.2d 380 (1980) (Incarceration is not by itself sufficient to render defendant unavailable for trial for purposes of Rule 1100(d)); Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978) (same); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977) (same). The conclusion that the August 2 extension was improperly granted is, therefore, inescapable. This conclusion alone is sufficient to warrant appellant’s discharge.

(b)

The majority holds that the November 30, 1979, extension was also properly granted because the Commonwealth justifiably relied on the ROR Warrant Service Unit to notify appellant of the October 25 trial date. At 431. But the record of the November 30 extension hearing does not establish that the Commonwealth had arranged in advance of the trial date for the ROR Warrant Service Unit to notify appellant at the drug program in New Jersey of the trial date, much less that it relied on such an arrangement. Indeed, the Commonwealth introduced no evidence at the hearing of any efforts to notify appellant at the drug program, despite the fact that the Commonwealth knew more than a month in advance of the trial date that appellant was enrolled in the drug program. This knowledge is disclosed by the fact that appellant’s participation in the program had already been invoked by the Commonwealth to justify a continuance of appellant’s trial from September 11 to October 25. (Id.) (Commonwealth’s Petition for Extension, filed September 12, 1979).

Despite the absence of any indication on the record that the Commonwealth attempted to secure appellant’s presence at trial on October 25, the majority finds that the Commonwealth acted with due diligence, because “it would offend our sense of justice to hold the Commonwealth accountable for retrieving appellant from New Jersey when his own counsel apparently made no effort to notify him of his court obligation.” At 431. Whether or not it comports with the majority’s “sense of justice,” the fact that the Defender Association may have known that appellant’s trial had been scheduled for October 25 in no way undermines the fact that as the rule is now written, an extension may not be granted except upon a showing by the Commonwealth that it attempted with due diligence to obtain the defendant’s presence at trial within the prescribed period. Commonwealth v. Ehredt, supra; Commonwealth v. Antonuccio, supra. The November 30 extension was not predicated upon such a showing. It therefore should not have been granted.

Appellant should be discharged.

      . Rule 1100(a)(2) provides: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” 1 Pa.C.S. § 1908 sets out the following method for computing the running of time periods:
      When any period of time is referred to in any statute, such period of time in all cases ... shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday ... such day shall be omitted from the computation.
      This .statute applies to Rule 1100 computations. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982). Excluding April 11, 1977, 180 days from the filing of the complaint was October 8, 1977, a Saturday. Omitting Saturday and Sunday, October 9, gives us an original Rule 1100 run date of October 10, 1977.

      . During the period relevant to this case, Rules 1100(c) and (d) provided:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.
      (d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      • (2) any continuance in excess of thirty (30) day's granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.
      These sections were amended October 22, 1981, effective January 1, 1982.

      . Thus, what appears at first glance to be a monumental delay of over two and one-half years actually is largely uncontested by appellant. We may assume that the Commonwealth was diligent in its efforts to bring appellant to trial at least through June 6, 1979. See Commonwealth v. Huertas, 261 Pa.Super. 257, 396 A.2d 386 (1978); Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366 (1977). In reality, as will hereafter appear, the entire period of time in which appellant claims he should have been brought to trial, but was not, totals six days.

      . Rule 4013(c) mandates that the conditions of a bail bond shall provide that the appellant will "give written notice to the issuing authority, the clerk of courts, the district attorney, and court bail agency or other designated court bail officer, of any change of address within forty-eight (48) hours of the date of such change.”

      . And see Justice Nix’s Opinion in Support of Remand in Commonwealth v. Patrick, 487 Pa. 16, 24, 407 A.2d 382, 386 (1979): "To conclude that the Commonwealth’s unawareness of appellant's apprehension resulted from its lack of due diligence ignores the realistic complexities of a justice system operating in a populous county.”

      . Moreover, Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980), precludes us from remanding to afford the Commonwealth a "second bite” at proving its due diligence under Rule 1100.

      . “At any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this Rule has been violated. A copy of such application shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.”

      . See note 5 supra.

      . Appellant does not challenge the Commonwealth's entitlement to the fourth extension.

      . The ROR warrant service unit is a division of the court administrator’s office charged with serving bench warrants on defendants who are on bail and fail to appear in court.

      . Appellant was tried within the run time as amended by the fifth extension order.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    464 A.2d 402
    LEASING SERVICE CORPORATION v. John W. BENSON, Jr., Appellant. LEASING SERVICE CORPORATION v. John W. BENSON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1983.
    Filed July 29, 1983.

      Dinah Bogart Engel, Philadelphia, for appellant.
    Sheryl L. Auerbach, Philadelphia, for appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The consolidated appeals covered by this Opinion arise from two separate orders by the lower court, in but one aspect of highly complex litigation, in several courts, which has resulted from an initially uncomplicated business transaction between the parties. While the issues presented by the instant appeals do not require extensive analysis for resolution, an understanding of the legal posture of the case demands a lengthy recitation of the tortuous litigation history which has evolved.

The record shows that on March 23, 1977 a corporation named Fairchild Incorporated (hereinafter “Fairchild”) entered into a written lease agreement whereby it agreed to lease certain mining equipment to Appalachian Pocahontas Coal Co.; Inc. (hereinafter “Appalachian”). The rights of Fairchild in this lease were assigned, on or about the same date, to Leasing Service Corporation (hereinafter “LSC”), the Appellee in the instant appeals. In a separate document dated March 25, 1977, John W. Benson, the ' Appellant herein, signed an unconditional guarantee agreement, under which Benson agreed to personally guarantee the obligations of Appalachian, of which he was a major shareholder. In October, 1978, after Appalachian defaulted in its payments under the lease, LSC exercised its contractual right to accelerate all of the rental payments due under the lease. Simultaneously LSC made a demand upon the Appellant Benson to pay the full balance due and other charges. After Appalachian’s default, LSC repossessed from it all or substantially all of the mining equipment which was the subject of the Lease. On or about March 13, 1979, Appalachian filed a Chapter XI Petition with the United States Bankruptcy Court in West Virginia. On March 16, 1979, LSC confessed judgment in the Court of Common Pleas of Philadelphia County against Benson individually for an amount exceeding $413,000.00, based upon rights granted in the guarantee agreement Benson had signed. The judgment was confessed by the filing of a Complaint in Confession of Judgment; counsel for LSC appeared as counsel for Appellant, pursuant to authority granted in the guaranty agreement.

On March 29, 1979, Benson filed a Petition to Strike and/or Open Judgment by Confession. On July 18, 1979, the Honorable VITO F. CANUSO entered an Order denying the Petition to Strike, and granted the parties time to offer depositions with regard to the Petition to Open the Judgment. Subsequently, on March 4, 1980, Judge CANUSO entered an Order denying the Appellant’s Petition to Open, and on March 18, 1980, Judge CANUSO filed an Opinion setting forth the reasons for his actions. The Order of the lower court in this matter was made the subject of the appeal in the instant case denoted as No. 592 Philadelphia, 1980.

Pursuant to a request for relief from automatic stay filed by LSC, the Bankruptcy Court authorized it to proceed with a sale of the equipment formerly leased to Appalachian. The sale was scheduled for and conducted on October 17, 1980. LSC was the only bidder at the sale and purchased all of the repossessed equipment for approximately $79,-000.00. Later during October, 1980, LSC and Benson entered into an agreement which provided that Benson would make certain payments to Leasing Service, but without waiving any of his rights with respect to the judgment which had been entered by confession. Further, the parties agreed that the judgment could be transferred to New Jersey.

Thereafter, LSC filed a claim against Appalachian in the bankruptcy court for the deficiency which resulted from the sale of the equipment at a lower price than the amount of Appalachian’s outstanding debt to LSC. After holding hearings concerning the matter, the bankruptcy court determined that LSC had acted in a commercially unreasonable manner in the sale and disposition of the equipment, and held that LSC was barred from recovering any deficiency from Appalachian as a result. In essence, the court found that LSC had not given sufficient notice, and in other ways had acted to make it difficult to sell the equipment in a reasonably competitive auction atmosphere. The result of the action of the bankruptcy court was to leave Appalachian free of any further indebtedness to LSC. The latter appealed that decision to the Federal District Court in West Virginia.

On June 30, 1981 Benson’s counsel demanded in writing that LSC mark the judgment against him satisfied of record. On July 24, 1981, LSC filed a petition with the Court of Common Pleas of Philadelphia County, seeking to have Benson’s satisfaction demand declared a nullity. On August 13, 1981 Benson responded by filing an answer and several counterpetitions. Based upon the bankruptcy court’s order that Appalachian did not bear responsibility for any further payments to LSC because of the improprieties in the equipment sales transaction, Benson contended that his liability to LSC as a guarantor was likewise extinguished. Thus, Benson’s various pleadings sought in the alternative the opening of the judgment against him, an order that the judgment was satisfied, an order barring LSC from recovering additional ámounts from him under the guarantee, and an order requiring LSC to refund the voluntary payments he had made after the auction sale. On March 4, 1982, after considering oral argument and the transcript of a deposition submitted by Benson, the Honorable LEONARD A. IVANOSKI granted LSC’s petition to declare Benson’s satisfaction demand a nullity. Judge IVANOSKI denied any relief on the counter-petitions filed by Benson. Benson thereupon filed the second appeal now pending before this court in the instant case, numbered 1041 Philadelphia, 1982.

On May 4, 1982, Benson initiated an action in the United States District Court for the Eastern District of Pennsylvania, in which he raised basically the same requests for relief as had previously been denied by the Philadelphia Court of Common Pleas. On May 28, 1982 LSC filed a motion to dismiss in the Federal District Court. On the day before oral argument was held before our court on the instant appeals, the Honorable CLARENCE C. NEWCOMER, of the United States District Court for the Eastern District of Pennsylvania, granted the motion filed by LSC and dismissed the complaint which had been filed by Benson. Judge NEWCOMER explained in his Memorandum Opinion that his ruling was based upon the doctrine of res judicata, as all of the matters upon which Benson had sought federal relief had been previously raised and decided in proceedings before the Court of Common Pleas of Philadelphia County.

Subsequent to the oral argument on the instant appeals, LSC filed an application with this Court for permission to expand the record. That request was granted to permit the introduction into the record of the Memorandum Order which was entered on March 28, 1983 by the Honorable JOHN T. COPENHAVER, JR., of the United States District Court for the Southern District of West Virginia, in the proceeding in which LSC appealed from the order of the bankruptcy court which had denied it the right to recover any deficiency from Appalachian in excess of the proceeds from the sale of the repossessed mining equipment. Judge COPENHAVER affirmed the bankruptcy court’s finding that LSC had not properly conducted the sale. However, the District Court determined that the bankruptcy court had erred in holding that LSC would be precluded from recovering a deficiency judgment by reason of its failure to conduct the sale in a commercially reasonable manner. In analyzing the issue presented, the court reasoned that such conduct by a creditor should not automatically dictate an absolute bar to the recovery of additional monies from the debtor, where fraud or the like is not present in the sales transaction. Instead, the court determined that the proper rule would be one which creates a presumption that the value of the collateral is equal to the amount of the indebtedness. The creditor, in this case LSC, could present evidence in an attempt to overcome the presumption in order to recover a deficiency. Consequently, Judge COPENHAVER ordered that the action be remanded to the bankruptcy court for further proceedings for the purpose of determining whether LSC would be entitled to any deficiency judgment.

We. have not been further advised of any other legal proceedings which have evolved between the parties up to the time of the preparation of this Opinion. Having described the significant litigation history, it is now appropriate that we review the particular and somewhat narrow issues presented to this Court on the two separate appeals.

The appeal at No. 592 Philadelphia, 1982 involves Appellant’s challenge to the lower court’s denial of his motion to strike or open the judgment entered against him. He raises four principal claims of error.

First, Benson contends that the judgment against him must be stricken on the ground that the amount of the judgment is based upon evidence outside the face of the judgment instrument, which in this case is the guarantee agreement. He relies upon the holding in the case of Edward Bershad Co. v. Babe’s Bar, Inc., 254 Pa.Super. 477, 386 A.2d 50 (1978) to support that position. It is apparent that there is no merit to this argument.

The case of Edward Bershad Co. v. Babe’s Bar, Inc., supra, may be said to have established a general rule that the amount due and owing must always be set forth as a part of the debt instrument, or be susceptible to calculation from information which the instrument itself contains. The decision did not limit the ruling to situations in which the prothonotary simply enters a judgment by confession, without the involvement of any attorney or the filing of a complaint in confession of judgment. Rather, the holding also appeared applicable in confession proceedings involving the entry of an appearance by an attorney on behalf of the debtor and the filing of a complaint prior to the entry of an amicable judgment by confession.

Unfortunately, the Appellant’s reliance upon the Bershad holding provides no support for his claims, as that case has' been overruled and clearly does not state the applicable law in these circumstances. See Dameron v. Woods Restaurant, Inc., 305 Pa.Super. 346, 451 A.2d 681 (1982); Evans v. Blimpie Base, Inc., 284 Pa.Super. 256, 425 A.2d 801 (1981). These decisions leave no question that a judgment by confession may properly be maintained, when the instrument authorizes it, by the filing of a Complaint, even if a computation of the amount may require reference to matters outside of the record. Therefore, we reject the Appellant’s initial claim of error.

The second contention for reversal is that the guarantee agreement lacked “clarity” and for that reason the motion to strike should have been granted. This argument is essentially a repetition of the points raised in the Appellant’s initial claim, which we have already rejected. The Appellant here merely maintains that the prothonotary lacked sufficient and clear evidence to justify his entry of a judgment by confession. We must disagree for the reasons stated above. Moreover, we note the rule that to support a motion to strike, the alleged irregularity must appear on the face of the record. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972). There is no such indicia of error present on the record before us, and none has been brought to our attention by the Appellant. The lower court’s denial of the motion to strike was proper.

In appeal No. 592 Philadelphia, 1980, the Appellant next offers two arguments in support of the contention that the lower court erred in denying his motion to open the judgment entered against him. First, he maintains that opening the judgment was proper because the terms of the guarantee agreement were modified prior to the entry of judgment. Second, he contends that a judgment entered by confession must be opened where the specific amount due and owing is in dispute.

Prior to addressing these issues, it is appropriate that we recognize the rules which govern our review of this aspect of the case. It is well-settled that a confessed judgment may be opened only where the petitioner acts promptly and presents evidence of a meritorious defense. Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977); Walnut-Juniper Co. v. McKee, Berger & Mansueto, 236 Pa.Super. 1, 344 A.2d 549 (1975). Pa.R.C.P. 2959(e) provides, in part, that: “If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.” It is also clear that the trial court’s disposition of a petition is a matter of discretion, and it will not be overruled in the absence of a clear and manifest abuse of that discretion. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973).

We now address the Appellant’s claim that the judgment should have been opened because of an alleged agreement between the parties to. rescind or modify the lease agreement and payment terms associated therewith. The lower court concluded that Benson had presented no competent evidence to support this claim. The record shows that although the Appellant was granted leave by the court to take depositions in support of his petition, he did not offer his own or that of any Appalachian representative, instead choosing to depose two of LSC’s officers. Citing their testimony, in the light most favorable to himself, Appellant points out that a representative of Appalachian spoke to a representative of LSC about attempts to sell the mining machinery covered by the lease. Further, he asserts that it was confirmed in writing that an understanding was reached in November, 1978 whereby Appalachian would pay the Appellee $5,000.00 per month and be given time to attempt to sell the machines. This evidence certainly fell short of showing any agreement by the parties to modify the terms of the underlying lease or the Appellant’s guarantee agreement. It was plainly not a manifest abuse of discretion for the lower court to find that this testimony did not support the argument that the parties intended to orally or otherwise rescind or modify their original lease agreement. That conclusion is buttressed by the recognition that the lease agreement specifically provided that it could not be modified “except in writing”. Our law generally upholds the validity and sanctity of no-oral modification clauses. See C.I.T. Corporation v. Jonnet, 419 Pa. 435, 214 A.2d 620 (1965). In that case it is noted that there are limited circumstances where a valid oral modification of a contract may be found, despite the existence of a no oral modification clause, but only where there is evidence of a waiver of the requirement that modifications be written to be effective. There is no such evidence here. In fact, the confirmation in writing of the conversation upon which the Appellant relies includes this handwritten caveat by the president of Appalachian in his letter to the LSC representative: “Enclosed please find our check in the amount of $5,000.00. It is my understanding that you will not cash this check until Mr. Mehl and our attorney Morris Dean have formalized an agreement reflecting our understanding.” No evidence was presented by Appellant that any such “formalized” agreement was subsequently made by the LSC and Appalachian representatives. In light of all of these factors, we can discern no error in the lower court’s finding that the Appellant failed to carry his burden of proof to justify opening the judgment, based upon allegations of a purported agreement among the parties to rescind or modify the lease agreement.

We next address the Appellant’s final argument in Appeal No. 952, that the judgment should have been opened because the amount of the judgment is in dispute. As might be expected, Benson asserts that it is excessive. In that regard, he declares that the judgment amount fails to fully credit him with payments made on account, and improperly included charges for the rental period after the equipment was repossessed. The lower court’s Opinion merely indicated its conclusion that the amount of the judgment was proper and reflected that full or more than full credit was given to Appellant for prior payments made. The Appellee contends in its brief to our Court that this claim was never properly raised in the lower court and was therefore waived. The record shows that as part of his original Petition to Strike and/or Open Judgment, the Appellant maintained, in paragraph number 38: “By confessing judgment in the sum of Four Hundred Twenty-Eight Thousand Fifty-Four Dollars and Forty-Six Cents, [LSC] has failed to credit [Benson] with Thirty-Eight Thousand Dollars ($38,000.00) in payments made to [LSC] since November, 1978.” That contention is very specific in addressing a complaint as to the amount of the judgment, and it was obviously raised at an appropriate stage of proceedings in the lower court. A petition to open is the proper procedural tool for a confession judgment debtor to utilize to contest the amount of the judgment. See Evans v. Blimpie Base, Inc., supra; Gratz Brothers v. Margolis, 186 Pa.Super. 268, 142 A.2d 375 (1958). The record shows that the Appellant, at a later stage of proceedings, filed a “Supplemental Petition to Open Judgment” without obtaining approval of the Court. In its opinion, the lower court found that this second petition did not comply with the requirements of Pa.R.C.P. 2959(a) and (c), and refused to consider the arguments raised therein. The lower court’s action regarding the Appellant’s Supplemental Petition was clearly justified, and limits our consideration to the question of whether the court erred as to the purported $38,000.00 payment not being credited to him in the judgment amount. The remaining claims, as to allegedly improper rental charges, and other matters included in the Supplemental Petition, were not properly raised in the lower court and therefore may not be considered by us on this appeal. Pa.R.C.P. 2959(a) and (c).

With respect to the claim that the Appellant was not properly credited with payments made, we perceive no error in the lower court’s determination that Appellant was properly credited with all payments made. We have held that in testing the sufficiency of evidence offered in support of a petition to open, the facts alleged by the petitioner must be viewed in the light most favorable to him, and the lower court must accept as true all evidence and reasonable and proper inferences therefrom and reject adverse allegations of the party in whose favor the judgment was entered. M.H. Davis Estate Oil Co., Inc. v. Sure Way Oil Co., Inc., 226 Pa.Super. 64, 403 A.2d 95 (1979). in the instant case, the Appellant asserts on appeal that he was credited with payments of $15,000.00, rather than $38,000.00, in the judgment amount. As discussed above, his only evidence in support of his Petition to Open was the deposition testimony of two LSC representatives. One of those representatives testified that the payments in question totaled $15,-000.00, and not $38,000.00, as asserted by Appellant. The Appellant has not directed our attention to any other evidence of record to support his assertions that the higher amount of payments were made. Thus, even considering the evidence in the light most favorable to Appellant, we can perceive no support for his assertion that the lower court should have opened the judgment because the record suggested it was entered for an excessive amount. Accordingly, we find no merit in the final contention of error offered by Benson on Appeal No. 592 Philadelphia, 1980.

Appeal No. 1041 Philadelphia, 1982 arises from the proceedings and court rulings which followed the Appellant’s written request, pursuant to 42 Pa.C.S.A. § 8104, to have the judgment against him marked as satisfied. As related earlier, the lower court granted the Appellee’s request to have the satisfaction demand declared a nullity, and denied the Appellant’s counter-petitions for satisfaction of the judgment, for relief from judgment, and for restitution. Judge IVANOSKI initially noted that the satisfaction demand and related disputes covered by the petition and counter-petitions were based upon the determination by the bankruptcy court that the obligation underlying the guarantee of Benson had been discharged in full because of the misconduct of LSC, a ruling which was not made until after the Petition to Open had been denied by Judge CANUSO, and the appeal filed with our Court at No. 592 Philadelphia, 1980. He concluded that the issues involved in the petition and counter-petitions, concerning the satisfaction of the judgment and other matters, with one exception, were not “in dispute” in the appeal at No. 592, and consequently could be decided by his court. He found merit in the Appellee’s petition to have the satisfaction demand declared a nullity, based upon his conclusion that applicable law mandated that an unconditional guarantor, like Benson, not be released or discharged as the result of a release of the obligation of the principal debtor in the circumstances presented in this case. Judge IVANOSKI’s order was dated March 4, 1982. As to the Appellant’s counter-petitions for satisfaction, relief from judgment and restitution, Judge IVANOSKI issued an order denying them without prejudice. He determined that his court was precluded from considering these requests because of their relationship with the appeal then pending in our Court at No. 592 Philadelphia, 1980. Judge IVANOSKI did not issue any decision on the Appellant’s counter-petition to open judgment, which alleged newly discovered facts, relating to the misconduct of LSC in the sale of the equipment. Rather, he referred this aspect of the case to Judge CANUSO, who issued an order dated March 17, 1982, dismissing-the petition because of the pendency of the appeal at No. 592 before our Court. While the Appellant refers to it in his brief on this appeal, the March 17, 1982 Order by Judge CANUSO was never made the subject of an appeal to our Court. Thus, the only lower court order properly before us in Appeal No. 1041 Philadelphia, 1982 is the one which was taken from Judge IVANOSKI’s March 4, 1982 order, granting the Appellee’s request to declare Appellant’s satisfaction demand a nullity, and denying the Appellant’s counter-petitions for the satisfaction of judgment, for relief from judgment and for restitution.

We believe that Judge IVANOSKI was correct in his decision to have the satisfaction demand declared a nullity, but not on the grounds relied upon by the lower court. We believe the lower court should not have evaluated the merits of the dispute, but rather should have acted upon procedural grounds mandated by Rule 1701 of the Rules of Appellate Procedure. ;

Rule 1701 provides, in pertinent parts:

“(a) General rule. Except as otherwise precribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
“(b) Authority of lower court or agency after appeal. After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may:
(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.
“(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal,, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the lower court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the lower court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.”

We find that the specific provisions of Rule 1701 precluded the lower court from reaching the merits of the Appellant’s claims, and supported the order declaring the satisfaction demand a nullity. At the time Appellant made his demand, pursuant to 42 Pa.C.S.A. § 8104, for the satisfaction of the judgment against him, our appellate Court had jurisdiction of his appeal, which inter alia, challenged both the very validity of the judgment and the amount of it. Appellant’s Petition to Open and/or Strike the Judgment, then pending before this Court on appeal, was a full-force attack on all meaningful aspects of the same judgment he then attempted to have marked satisfied. Under Rule 1701(b) it was proper for the lower court to order his •satisfaction demand nullified “to preserve the status quo”. We do not believe that Rule 1701(a) permitted the lower court to examine the merits and to declare whether or not the Appellant still bears liability on the judgment, despite the fact that the bankruptcy court announced its decision after the attack on the judgment had been appealed to our Court at No. 592. In doing so, the lower court clearly delved into the merits of an issue which directly affected a matter then on appeal before our Court. The reasons for the rule are self-evident. One need only realize that had the record presented other facts in this case, we might have been convinced to order the judgment stricken for some defect, or opened for evidence on the amount due from the Appellant. While such results have not eventuated here, the example demonstrates the problems which could be created by the lower court’s resolution of the question of the exact amount owed by the Appellant to the Appellee. It is well-settled however, that the judgment of a trial court may be affirmed on appeal where it is correct on any legal ground or theory, regardless of the reason or theory adopted by the trial court. Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972). We find no basis for reversal in the appeal filed at No. 1041 Philadelphia, 1982.

The Appellant did not file any appeal from Judge CANUSÓ’s March 17, 1982 order denying the petition to open which asserted newly discovered facts. Further, he has not requested that our Court remand this matter to the lower court based upon newly discovered facts or the circumstances evolving from other litigation. It would not be appropriate for us to instruct the Appellant or even the Appellee as to future proceedings which might be appropriate in the unusual circumstances presented here. Moreover, the litigation quagmire in which this dispute has become mired does not create compelling circumstances for giving guidance to future litigants in other less procedurally complicated matters. Rather, we deem it appropriate to merely affirm the orders of the lower court in both appeals, for the reasons explained above.

Affirmed.

      . The confession of judgment action was docketed in the lower court at No. 3774 March Term, 1979, and thus marked the commencement of the litigation now on appeal before this Court in the instant case.

      . See 42 Pa.C.S.A. § 8104.

      . That case is docketed in the District Court at No. 82-1982.

      . See former Pa.R.C.P. 2951(a), which was effective in March, 1979, and provided:
      "(a) Judgment by confession may be entered by the prothonotary, as authorized by the Act of February 24, 1806, P.L. 334, 4 Sm.L. 270, sec. 28, as amended, 12 P.S. § 739, without the agency of an attorney and without the filing of a complaint, declaration or confession, for the amount which may appear to be due from the face of the instrument. The judgment may include interest computable from the face of the instrument."

      . Former Pa.R.C.P. 2951(b), which was effective in March, 1979, in such circumstances provided:
      "(b) An action which is not filed under the Act of February 24, 1806, P.L. 334, 4 Sm.L. 270, sec. 28, as amended, 12 P.S. § 739, shall be commenced by filing with the prothonotary a complaint substantially in form provided by Rule 2952. Even though the instrument is one on which judgment could be entered by the prothonotary under the Act of 1806, the plaintiff may commence the action by filing a complaint.”

      . The form for such a complaint is provided in Pa.R.C.P. 2952.

      . We cannot consider the transcript of a deposition of Federal court testimony of John H. McMann, III, the President of Appalachian, which was included in Appellant’s printed record on this appeal. It is apparent that it was not timely or properly submitted as part of the record in the lower court.

      . See also the recent decision of this Court in Stern v. Feathers, 307 Pa.Super. 433, 453 A.2d 661 (1982), which discusses the heavy burden upon one who seeks to prove an oral modification of a written agreement. The Appellant has clearly failed to carry that burden in the instant case.

      . Pa.R.C.P. 2959(a) and (c), in effect at that time, respectively stated:
      "(a) Relief from a judgment by confession shall be sought by petition. All grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition."
      "(c) A party waives all defenses and objections which he does not include in his petition or answer:"