author: HESTER, Judge: CAVANAUGH, Judge,

text:
    438 A.2d 600
    FIRST PENNSYLVANIA BANK, N.A. v. Carl LEHR, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1979.
    Filed Feb. 6, 1981.

      Stuart H. Savett, Philadelphia, for appellant.
    Norman R. Bradley, Philadelphia, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   HESTER, Judge:

Presently before the court is appellant Carl Lehr’s (sometimes Lehr) appeal from the order of the lower court dated November 30, 1978 wherein the court denied appellant’s petition to open judgment and denied appellant’s petition to strike off the judgment, excepting for interest payments made subsequent to the entry of said judgment.

On July 29, 1977, appellee, First Pennsylvania Bank, N.A. (sometimes bank) confessed judgment against the appellant in the amount of $3,782,160.00 pursuant to a warrant of attorney contained in a personal Guaranty dated April 25, 1972. On December 7, 1977, appellant filed a Petition to Strike or Open the Judgment. Depositions of the appellant and other individuals involved in this matter were taken and oral argument was heard by the court en banc on September 8 and November 8, 1978.

On November 30, 1978, appellant’s petition to strike off the judgment was granted but only in regard to interest payments made subsequent to the entry of the judgment; in all other respects it was denied. Appellant’s petition to open judgment was also denied. Thereafter, this timely appeal followed.

We reverse and open the judgment taken by confession and remand to the lower court for a trial on the merits.

Our scope of review on appeal from either the opening or the denial of opening a judgment taken by confession has been clearly delineated over numerous years. We reiterate as we have done on numerous occasions, our scope of review on appeals from the lower court’s grant or denial of a petition to open judgment is very narrow. A petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court’s discretion in either opening or refusing to open a judgment taken by confession, will not be disturbed on appeal unless the lower court has committed a manifest abuse of discretion or an error of law. M. H. Davis Estate Oil v. Sure Way Oil, 266 Pa.Super. 64, 403 A.2d 95 (1979); Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 392 A.2d 784 (1978); Christie v. Open Pantry Marts, 237 Pa.Super. 243, 352 A.2d 165 (1975).

It is well settled that “(o)ne who petitions to open a confessed judgment must act promptly and aver a meritorious defense”, Wenger v. Ziegler, 424 Pa. 268, 272, 226 A.2d 653, 655 (1967). There is no question that the appellant herein acted promptly; thus the sole issue is whether he set forth a meritorious defense.

The standard to be applied by a court in determining whether a moving party has properly averred a meritorious defense so as to require that a confessed judgment be opened and the moving party let into a defense is succinctly set forth at Pa.R.C.P. 2959(e), effective December 1, 1973, which provides in relevant part:

“. . . If evidence is produced which in a jury trial would require the issues to be submitted to a jury the court shall open the judgment.” (Emphasis added).

In testing the. sufficiency of the evidence, the facts as alleged must be viewed by the court in the exercise of its discretion in the light most favorable to the moving party (the appellant herein) and further, the lower court must accept as true all evidence and reasonable and proper inferences flowing therefrom. (Emphasis added). Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976); M. H. Davis Estate Oil v. Sure Way Oil, supra. As Judge Van der Voort of our court in M. H. Davis Estate Oil v. Sure Way Oil, supra, declared:

“.. . the test in evaluating the petitioners’ evidence is not whether the evidence will probably win a verdict from the jury, but only whether there is sufficient evidence to allow the disputed issue to go to the jury.”

Rule 2959(e) has been interpreted since its promulgation in 1973 as prohibiting a court from “weighing” the sufficiency of the evidence. See Christie v. Open Pantry Marts, supra; Joseph A. Puleo & Sons, Inc. v. Rossi et ux., 234 Pa.Super. 612, 340 A.2d 557 (1975); Wolgin v. Mickman, 233 Pa.Super. 218, 335 A.2d 824 (1975); Commonwealth ex rel. Mazza v. Sarvice, 227 Pa.Super. 38, 323 A.2d 41 (1974).

With the above statement of the law as our guide, the record reveals the following: Appellant Lehr was one of several individuals who provided capital for the construction and operation of the Pocono International Raceway, Inc., (hereinafter Raceway), when a group of investors, including Lehr, decided to expand the Pocono Racetrack into a super speedway. At divers time, Lehr was a stockholder, director of the corporation, treasurer of same and creditor, personally holding $400,000.00 in judgment notes for loans to the corporation. Additionally, Lehr held warrants to purchase additional shares of common stock. Finally, a family enterprise owned by Lehr also was a $100,000.00 creditor of the Raceway. Dr. Joseph R. Mattioli was then chief executive officer and chairman of the board at the time of the completion of the Raceway in 1971. At that time, the investors realized that additional capital was needed to meet both current and future short-term operating obligations. Following extensive negotiations, the bank, the appellee herein, was chosen to provide this financing and a complex loan agreement package was structured. In return for five million dollars, the Raceway executed a note, at 4% over prime (16% at that time), which note was collateralized by a first mortgage on the Raceway’s real estate. To further secure said loan, the investors, which obviously included appellant Lehr, were called upon to execute a pledge agreement with respect to their equity in the Raceway, a subordination agreement of their debt obligations in favor of the bank’s loan, a joint indemnification agreement, and personal guaranty agreements (Exhibit 1 to appellee’s complaint in confession of judgment).

It is this guaranty agreement, purportedly executed by appellant Lehr, which is at the heart of this litigation. Contained in said guaranty agreement at paragraph 5 is a warranty of attorney provision authorizing any attorney to appear for the guarantor and confess judgment against him for the amount for which the guarantor may be or become liable under said guaranty agreement, plus 2% thereof as attorney’s fees. Further contained in said document, entitled Guaranty, appeared the following paragraphs:

1. The Guarantor hereby unconditionally guarantees to Bank, its successor and assigns, the prompt and punctual payment of $3,500,000 of the principal amount of the Note, when due by acceleration on account of default, maturity or otherwise, together with interest on the said $3,500,000 in principal amount at the rate specified in the Note. The liability of the undersigned for a $3,500,000 portion of the indebtedness evidenced by the Note, together with interest on that portion as specified above, shall not be limited or reduced by any partial recovery by Bank on account of the indebtedness evidenced by the Note from the mortgaged real estate, from any other guarantor, or otherwise. The liability of the Guarantor hereunder may be enforced by Bank or any subsequent assignee of this Guaranty.
7. The liability of any Guarantor hereunder is not conditioned upon the liability of any other Guarantor. If the Guarantor is more than one person, their liability hereunder shall be joint and several.

The record reflects that on Sunday, April 23, 1972, appellant Lehr, Dr. Mattioli and their wives dined together. Following their meal, Mattioli presented Lehr with a packet of papers indicating that they were the documents for the bank loan and requesting that Lehr review the same. Following a partial review of same, appellant, on April 25,1972, dictated a memorandum to Mattioli which included the following statements:

“. . . Further, if anyone of the capital guarantors would be unable to come up with his share of the $3,500,000 pool, anyone or all of us would be on the hook to take up the slack. . . . ”

Near the end of the memorandum, appellant further wrote:

“But I can’t let you or the track down at this time so just have to go along like a lamb to the slattering block. . . . ” (signed) Carl B. Lehr.

It is at this juncture in time that Lehr’s and Mattioli’s recollections differ.

In his deposition, Lehr testified:

A That would be April 28th, and it was late in the day Friday afternoon, I should say about 4:30, and he appeared in a hurry, never sat down in my office. I had a private office there which had two entrances, and he came in the private entrance, knocked on the door, and I opened it, and he came in, and he told me at the time that he was in a hurry, he had a taxicab there which he left running there waiting, and he came to get my signatures on the papers that would be required to close the loan.
He explained that somebody at the bank—and I don’t recall who that was—had agreed to wait for him until five o’clock, and he had to be sure to get this parcel of papers back to that individual by five o’clock. So he said, you know, “Carl, either you sign it, or you don’t sign, but if you don’t sign it, why, the Raceway goes down the tubes right now.”
Q Now, had he brought with him any documentation, or did he ask you to—
A Well, he had a lot of papers with him, and I signed perhaps four or five different things. Now, there was no time afforded to read these things individually, and I trusted Dr. Mattioli. After all, had been working with him in the building of the Raceway for two years.
So he said, “You have to sign here, you have to sign here, and you have to sign there.” And I did this simply to prevent the whole thing from collapsing at the moment, according to the way he phrased it.
Q Do you recall whether one of the documents you signed was a guaranty on that Friday, April 28?
A No, I have no recollection of any specific items that were signed. It was just a case like, you know, “Here are the papers now. You sign here.” And I signed. “And here is another one,” and then so I signed.
Q Now, do you recall, is it your recollection that you did sign some guaranty?
A Oh, yes. They were the—apparently they were the documents that were required by the bank. (T. 54a-55a)

On cross examination, appellant reiterated his recollection of the April 28, 1972 meeting with Dr. Mattioli:

Q You did go along, and you did sign the documents, including the Guaranty?
A I signed whatever he brought to me that day. I didn’t enumerate it. I didn’t count it. I didn’t read it.
Q But I think you did say in answer to Mr. Swift’s direct examination earlier this morning that among those documents which you say you signed on that Friday was a guaranty of the loan.
A No, I didn’t say there was a guaranty in it. I said, as I-am saying now, that I signed four or five times, whatever papers Doc put in front of me, and that was it. But whether the papers included a guaranty, I didn’t know. (T. 94a)

It is interesting to note that the Pledge Agreement (and probably Subordination Agreement, although the record is unclear) with Appellant’s purported signatures affixed are dated April 28, 1972! (T. 73a)

Most critical to the instant case is Appellant’s unequivocal—almost dogged—testimony that the signature appearing on the guaranty dated April 25, 1972 was not his; that it was a forgery.

Q I am asking if you can identify the one on the right.
A This signature is not mine on the right.
Q But the words spell your name, do they not?
A There are two words that do spell my name.
Q Why isn’t that your signature, if you can tell?
A Well, if I say so myself, as I write my name in a unique way of forming the capital letter “C” of my first name, and this is a poor imitation.
Q Is there any other reason?. . .
A And that was a Tuesday (meaning April 25, 1972). Yes. That was a Tuesday. I definitely signed nothing on that Tuesday, definitely. (T. 53a)

And, on cross-examination:

Q Now, Mr. Lehr, I am going to hand you a document entitled “Guaranty,” which has just been produced by Mr. McKim from the bank’s records, which on the fourth page bears a date of April 25, 1972, and ask whether that is your signature appearing thereon....
A This is not my signature, and this is dated April 25th, a date on which I signed nothing. I can absolutely guarantee that. I am certain—(T. 73a-74a)
Q I am asking about this one, Mr. Lehr. I am asking you whether—
A That is what you have that purports to be my signature.
Q I am not—
A And it isn’t. (T. 95a)

And, for the fourth and fifth time:

Q I am talking about the document which Mr. McKim has produced from the bank records.
A I told you that this is not my signature. (T. 102a)
Q You have testified—and at this point we are not arguing whether or not it is your signature, but I am asking you whether by your saying you can’t say whether it was or was not your penciled handwriting on there, and I am asking whether you deny that you made the pencil marks on the original Guaranty which I have handed you from the bank’s records produced here today.
A Yes, I would deny that. I would deny that, because the thing isn’t my signature in the first place so how did—how then did one or two or three or four sheets come into your possession with many scribblings on it that you think I wrote? (T. 103a)

Dr. Mattioli’s recollection of the sequence of events differs sharply from that of Lehr’s. Mattioli recalled delivering the loan papers, including the guaranty, to Lehr on April 23, 1972, but specifically recalled that he did not stop by Lehr’s office for purposes of obtaining his signature on April 28, 1972.

. . . “Are you sure of the fact that you did not go to Mr. Lehr’s home with documents in connection with this loan?”...
Q Did you ever go to Mr. Lehr’s office to attempt to get him to sign any documents relating in any way to the term loan agreement prior to the closing?
A No. (T. 141-142a)

Earlier, Dr. Mattioli testified that he was. out of the jurisdiction on Friday, April 28, 1972.

I left for Terre Haute, Indiana, on Friday, The 28th, around ten or eleven o’clock in the morning, I believe it was, to attend an affair. I got back into my office about the following Monday or Tuesday, and then I received Mr. Lehr’s letter at that time. (T. 136a)

The Guaranty Agreement upon which judgment was confessed against Appellant was dated April 25, 1972 and witnessed by Dr. Mattioli. In his deposition however, Dr. Mattioli was unable to recall the specifics. . .

Q Now, was the signature which you have identified as that of Mr. Lehr on page 4—
A Yes.
Q —on that document placed there in your presence?
A I don’t know.
Q You have no recollection?
A No, no.
Q Do you know whether the signature that you have identified as your own on page 4 of this document was placed there in Mr. Lehr’s presence?
A I don’t know that; I don’t know that. (T. 139a)

Winston J. Churchill, an associate of the bank’s law firm which participated in this transaction and who was present at the closing of the term loan agreement, testified that he neither witnessed Appellant’s execution of any of the documents nor was appellant present at the closing on April 28, 1972.

Q Did you witness Mr. Lehr’s execution of any documents at the closing of the term loan agreement?
A Not that I recall. I don’t believe that Mr. Lehr was personally present at the closing. (T. 154a)

Quaere, who dated the pledge and Subordination Agreements and witnessed Appellant’s signature on April 28, 1972?

Mr. Churchill’s testimony did conflict dramatically with that of Dr. Mattioli—

A No, that is correct. I think Dr. Mattioli executed the “Witness” line in my presence on the 28th, but Mr. Ben-singer presented the document at that time already signed by Mr. Lehr.
Q So it was witnessed on an occasion separate from the actual execution; is that correct?
A That is my recollection. It is a guaranty, of course, not a will. (T. 155a)

Finally, Walter D. McKim confirmed that Appellant did not execute the Guaranty Agreement in question in his presence:

Q Am I correct in concluding that the guaranty of Mr. Lehr, which is part of the bank’s file and the closing of the term loan agreement, was not executed in your presence?
A That is correct. (T. 159a)

No expert testimony regarding Lehr’s signature was presented by either side.

There are numerous inconsistencies and conflicts in the record. For instance, Lehr admittedly signed numerous documents on the 28th (the Pledge and Subordination Agreements are dated April 28, 1972), but the Guaranty is dated April 25th, a date upon which Lehr recalls he signed no documents. Lehr admits that he would have signed a Guaranty Agreement if one had been presented to him by Dr. Mattioli on the 28th; but he testified clearly and directly that he signed no documents on the 25th, although the Guaranty, witnessed by Dr. Mattioli is dated April 25th. Contrariwise, Dr. Mattioli testified he doesn’t even recall witnessing same (on the 25th or at any other time). Further, Dr. Mattioli testified that he left for Terre Haute, Indiana on the morning of the 28th; however, one of the appellee’s attorneys recalled that Dr. Mattioli attended the closing on the 28th and at that time witnessed appellant’s signature.

Finally, appellant testified on five separate occasions that the signature appearing on the Guaranty Agreement dated April 25, 1972 and witnessed by Dr. Mattioli was not his.

Lehr has raised three issues on appeal: He claims (1) that the signature on the Guaranty is a forgery; (2) that his signature was obtained by fraud as part of a bank conspiracy with Dr. Mattioli; and (3) that his signature was obtained by duress and coercion.

Because we believe that appellant has produced sufficient evidence pursuant to Rule 2959(e) on the issue of the forgery of his signature, which would required same be submitted to a jury, we need not discuss issues 2 and 3 as stated above. Accordingly, we reverse and remand consistent with this opinion.

Prior to the adoption of Rule 2959(e) in 1973, the law of the Commonwealth was clear as to what standard of evidence was required in an action to open a confessed judgment based upon the defense that the moving party’s signature was a forgery. Our Superior Court in Carlson v. Sherwood, 416 Pa. 286, 287, 206 A.2d 19, 20 (1965) stated:

A party who relies on fraud or forgery has the burden in the first instance of proving the facts upon which the alleged fraud or forgery is based, and these facts must be established by evidence that is clear, direct, precise and convincing: Sterling Electric & Furnace Co. v. Peterson, 409 Pa. 435, 187 A.2d 285 (1965). (emphasis added)

In other words, pre 2959(e), the judgment debtor was required to offer clear, direct, precise and convincing evidence in the first instance that his purported signature was a forgery; thereafter, the burden of proof shifted to the judgment holder to establish the genuineness of the debtor’s signature.

Obviously, prior to the adoption of 2959(e) the lower court was expected to weigh the sufficiency of the evidence presented by both parties and, thereafter, either open or refuse to open the judgment in question.

That onerous burden of proof imposed upon the moving party in the first instance where forgery was alleged has been altered by the adoption of Rule 2959(e).

Now, the lower court may not weigh the sufficiency of the evidence as presented in opening or refusing to open a judgment taken by confession. The change caused by the adoption of 2959(e) impacts squarely on the degree of proof required when forgery is raised as a meritorious defense. As the court in Ritchey v. Mars, 227 Pa.S. 33, 324 A.2d 513 (1974) opined, a judgment debtor does not have to prove his case conclusively. No longer must the moving party present evidence of forgery that is clear, direct, precise and convincing as was previously the case in Carlson v. Sherwood (supra). We believe that the key change caused by 2959(e) above, is the elimination of the requirement of “convincing” evidence; for “convincing” evidence by definition requires a weighing of the evidence. Now, we believe that a moving party no longer is required to produce clear, direct, precise and convincing evidence; now that requirement has been substantially liberalized to require only clear, direct, precise and “believable” evidence, which would in a jury trial preclude the entry of a directed verdict against the party raising forgery as a defense, and which, if believed by a jury, would not be reversed by the entry of a judgment non obstante veredicto.

We conclude that the lower court, therefore, abused its discretion when it denied appellant’s petition to open. We are of the opinion that appellant has presented clear, direct, precise and believable evidence of forgery which, not to be redundant, a jury could believe. Under the circumstances at bar, the question of appellant’s signature on the Guaranty dated April 25, 1972 presents a question of fact which should be resolved by jury.

Therefore, we find that the lower court abused its discretion when it concluded that the evidence of record could only support one finding and, therefore, erred when it denied appellant’s petition to open the judgment taken by confession.

The order of the lower court is reversed and the case remanded for proceedings consistent with this opinion.

Reversed and remanded.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I dissent. The adoption of Rule 2959(e), Pa.R.C.P. has no bearing on the burden placed on the party alleging forgery. A close scrutiny of the rule itself and the comment to it as well as case law supports this view.

As this Court stated in Foerst v. Rotkis, 244 Pa.Super. 447, 450, 368 A.2d 805, 807:

It is axiomatic that one who petitions to open a confessed judgment must act promptly and aver a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Walnut-Juniper Co. v. McKee, Berger & Mansueto, Inc., 236 Pa.Super. 1, 344 A.2d 549 (1975); Chelten ham Nat. Bank v. Snelling, 230 Pa.Super. 498, 326 A.2d 557 (1974); Ritchey v. Mats, 227 Pa.Super. 33, 324 A.2d 518 (1974). And it is equally true that such a petition is an appeal to the court’s equitable powers, is addressed to the sound discretion of the court, and a reviewing court will reverse the determination of the lower court only for a clear and manifest abuse of discretion. Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (Jacobs, J., filed 9/27/76), Cheltenham Nat. Bank v. Snelling, supra; Bucks County Bank & Trust Co. v. DeGroot, 226 Pa.Super. 419, 313 A.2d 357 (1973).

Because it is admitted that Lehr acted promptly the only question before us is whether the lower court abused its discretion in refusing to open judgment for want of a meritorious defense. The discretion exercised by the lower court must be guided by Pa.R.C.P. 2959(e) which states in pertinent part: “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.”

The Majority notes that the burden of proving fraud or forgery is the same: “[a] party who relies on fraud or forgery has the burden in the first instance of proving the facts upon which the alleged fraud or forgery is based, and these facts must be established by evidence that is clear, direct, precise and convincing.” Carlson v. Sherwood, 416 Pa. 286, 287, 206 A.2d 19, 21 (1965). This standard has been referred to as the higher equitable standard of proof, see M. H. Davis Estate Oil v. Sure Way Oil, 266 Pa.Super. 64, 403 A.2d 95 (1979), and whether the evidence rises to this standard so to justify its submission to the jury is a question of law for the court. Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976).

Thus it would seem that under Rule 2959(e) the judgment shall be opened when the moving party shows by clear, direct, precise and convincing evidence that a forgery has been committed since only at that point would there be sufficient evidence to justify submitting the issue to the jury. Nevertheless the Majority asserts that this “onerous burden” placed on the moving party has been altered by 2959(e) because under that rule the lower court is no longer permitted to weigh the evidence. In Ritchey v. Mars, 227 Pa.Super. 33, 36 n.4, 324 A.2d 513, 515 n.4 (1974), this court stated in reference to the 1973 Amendment to Rule 2959: “Thus, a court can no longer weigh the evidence in support of the defense, but must only determine whether there is sufficient evidence to allow the issue to go to the jury.” However, this language, when viewed in its proper context, does not compel nor permit the result reached by the Majority-

As noted in Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977), prior to the amendment to Rule 2959 it was established that equitable considerations were of prime importance when considering a petition to open judgment:

... To open judgment, the petitioner must not only aver a valid defense but he must also establish equitable considerations which impress the court with the need for relief. Lened Homes, Inc. v. Philadelphia Department of Licenses and Inspections, 386 Pa. 50, 53, 123 A.2d 406, 407. There must be more than mere conflict of evidence “as would persuade the court that, upon submission of the issue to a jury, a verdict in their favor could be upheld.” Ahrens v. Goldstein, 376 Pa. 114, 121, 102 A.2d 164, 167.

Kardon v. Morris, supra, 470 Pa. at 340, 368 A.2d at 659, quoting Ehnes v. Wagner, 388 Pa. 102, 104, 130 A.2d 171, 172 (1957).

The comment to Rule 2959 explains the impact of the amendment on Pennsylvania practice:

This Rule is amended to provide a major change in Pennsylvania practice.
Historically, it has been the rule in Pennsylvania that the opening of a confessed judgment is a matter within the discretion of the common pleas court court and the appellate courts will not reverse unless there has been an abuse of discretion. This requires the defendant to do more than produce evidence which, if believed, would constitute a defense; it places on him the burden of persuading the court to open the judgment.
Dicta in both Overmyer [D. H. Overmyer Co., Inc. of Ohio v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972)] and Swarb [v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972)]. . . comment critically on this burden and the concurring opinion of Justices Douglas and Marshall refers specifically upon the lesser burdens of proof required under the Ohio system.
The amendment meets these criticisms by adding a new sentence to subdivision (e) of Rule 2959 stating specifically that if the defendant produces evidence, which in a jury trial would require the issues to be submitted to a jury, the court shall open the judgment.

Despite the rule change, a party seeking to open a confessed judgment must still present evidence sufficient to create a jury question. However, the subjectivity permitted by the old rule is replaced by a more objective standard: the judge is no longer permitted to question whether he is persuaded by the evidence, but only whether the evidence presented by the defendant, if believed, created a question for the jury. Thus the standard of sufficiency the court must employ is that of a directed verdict. Greenwood v. Kadoich, supra, 239 Pa.Super. at 376, 357 A.2d at 606. Therefore, as when ruling on a motion for a directed verdict, the facts must be viewed in the light most favorable to the petitioner and the court must accept as true all evidence and proper inferences therefrom supporting the defense and must reject the adverse allegations of the party obtaining the judgment. Id.

The Majority states that Rule 2959(e) has been interpreted since its promulgation as prohibiting a court from weighing the sufficiency of the evidence and since convincing evidence by definition requires a weighing of the evidence, the moving party is no longer required to produce such evidence. While admittedly it is difficult to determine what the court in Ritchey meant when it said that Rule 2959(e) prohibits weighing the evidence in support of the defense, it is clear that it cannot mean what the Majority claims it does. According to the Majority even if the evidence is not sufficient to go to a jury the lower court must open the judgment. This is a limitation on the discretion of the lower court not intended by the amendment. Moreover, the Majority’s holding is inconsistent with decisions of this court.

As noted above, the burden on the petitioner alleging forgery is identical to that for fraud. In Greenwood v. Kadoich, supra, a case decided after the amendment, we reversed the lower court’s refusal to open judgment where fraud had been alleged. We stated, “The issue presented here is thus whether appellant’s evidence of fraud and misrepresentation was sufficiently clear and convincing, as a matter of law, to prevent a directed verdict against her,” supra, 239 Pa.Super. at 357 A.2d at 606 (1976). Similarly in a later case, M. H. Davis Estate Oil v. Sure Way, supra, we applied this higher standard of proof in affirming the lower court’s opening of judgment where fraud had been alleged. Both cases also relied on the language in Ritchey v. Mars, supra, that in light of Rule 2959(e) the court can no longer weigh the evidence in support of the defense.

This language has been quoted widely in cases governed by Rule 2959(e). Few of these cases, however, are of much help in determining the precise meaning of the phrase. In Foerst v. Rotkis, supra, this court interpreted the phrase as prohibiting the trial judge from making findings of credibility. There the petitioners sought to open a judgment entered against them on the ground that they had violated a restrictive covenant in an agreement of sale which provided that they would not open a similar business within one mile of the purchased premises. We stated:

If the appellant’s statement as to the distance between their and the appellees’ restaurant is accepted as true by a jury then a valid and complete defense to the judgment would have been advanced. The matter is in controversy. The appellants have stated that the distance was less than a mile, the appellees testified that the distance was greater than a mile. . . . The function of our court is not to weigh the evidence in support of the defense, but merely to determine whether there was sufficient evidence to go to the jury. Wolgin v. Mickman, 233 Pa. Super. 218, 222, 335 A.2d 824, 826 (1975) citing Ritchey v. Mars, 227 Pa.Super. 33, 36 n.4, 324 A.2d 513, 515 n.4 (1974).

244 Pa.Super. at 451-52, 368 A.2d at 808. In Greenwood v. Kadoich, supra, after quoting the language of Ritchey v. Mars this Court explained as follows: “Otherwise stated, the judgment should be opened where the evidence produced would be sufficient to ‘prevent a directed verdict against [her].’ (citations omitted).” 239 Pa.Super. at 375, 357 A.2d at 606. Thus if read to prohibit findings of credibility the Ritchey language is consistent with the rule and its implicit requirement that the standard of sufficiency to be employed is that of a directed verdict. Greenwood v. Kadoich, supra. (Therefore, all evidence in support of Lehr must be accepted as true. Id.) The Majority’s reading of this language does not share this consistency.

In view of the above it is clear that the Majority is in error. Although where there is any evidence which alone would justify an inference of the disputed fact, a jury question exists, Heffeman v. Rosser, 419 Pa. 550, 554-55, 215 A.2d 655, 657 (1966), there are instances where a higher standard of proof has been required. This higher or “equitable” burden is generally required in cases involving claims, such as fraud or forgery, where a serious danger of deception exists, or cases involving claims that are disfavored on grounds of public policy. See McCormick, Evidence § 340 at 796-98 (2d ed. 1972). As the foregoing analysis disclosed, it was not these cases that prompted the 1973 amendment, nor does the amended rule seek to alter the degree of proof required in such cases.

Now that the standard to be employed has been established, it must be determined whether the petitioner has shown by clear, precise and convincing evidence that a forgery has been committed. In the case of La Rocea Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963), the standard “clear, precise and convincing” was defined:

The witness must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof are narrated exactly and in due order, and that their testimony is so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.... It is not necessary that the evidence be uncontradicted . . ., provided it “carries a clear conviction to the mind...” or carries “a clear conviction of its truth...”

Because the standard to be applied is that of a directed verdict, all evidence must be viewed in the light most favorable to Lehr. However, testimony need not be so viewed when it is inherently improbable, or contradicted by unimpeached writings or unquestioned physical facts. Statler v. Pennsylvania Railroad Company, 299 Pa. 321, 149 A. 494 (1930); Lott v. Guiden, 205 Pa.Super. 519, 523, 211 A.2d 72, 74 (1965).

A review of Lehr’s deposition alone reveals several major inconsistencies. Lehr testified that on Sunday, April 23, 1972 he was given a sheath of papers by Dr. Mattioli. Dr. Mattioli informed him that the papers were the material the bank had prepared for the loan. Lehr reviewed the papers, but could not recall whether a guarantee was among them. However, in a memo which he wrote to Mattioli on April 25, Lehr unmistakably refers to the guaranty.

In paragraph two Lehr refers to himself as one of “those of us who are signing as Guarantors.” Throughout the memo Lehr expresses his displeasure at what he has read. He states:

Granted, they are lending us a lot of money which must be secured in the best possible way, but decently so. Apparently from time to time the Commonwealth enacts laws designed to prevent unscrupulous bankers from having the right to everything a man may possess, and in my opinion when they ask us to waive this, that, and the other legal rights that may have been placed in the law years ago, the bank is doing something illegal. I haven’t counted them but there are at least lh dozen waivers.

As appellant bank states, although this paragraph only impliedly refers to the guaranty form the following paragraph of Lehr’s memo clearly shows his knowledge of the guaranty and its provisions:

Further, if any one of the Guarantors would be unable to come up with his share of the $3,500,000 pool, any one or all of us would be on the hook to take up the slack.

The guaranty at issue does, in fact, require the guarantors to waive numerous potential rights and also makes each guarantor liable for $3,500,000, the full amount of the loan.

From a review of the memo it can be concluded that Lehr was not only aware of the guarantee at issue, but that he intended to sign it. In expressing his displeasure at signing, he states, “.. . I understand why you waited so long to ask for my signature, because if I had been the first one I would have refused.” The memo further states:

I don’t suppose there’s any need for me to submit these documents to my attorney—the only thing I could get as a result would be a big bill because these documents tie everything up so tight that the best lawyer in the land couldn’t help and personally I would be ashamed to let Mr. Thornton know I was signing a thing of this kind.

Lehr claims that he signed nothing on April 25, the date appearing on the guarantee upon which judgment was confessed. However, his testimony was at best equivocal as to whether he signed a guarantee during Dr. Mattioli’s brief visit to his office which Lehr claimed took place on April 28. Although he could not recall signing a guaranty, he signed whatever Mattioli handed him and read nothing.

Moreover, in subsequent dealings with the bank Lehr did not dispute that he was a guarantor. In October, 1974 Lehr attended a meeting of the guarantors in the bank office. Later, in 1975 negotiations were underway to modify the loan agreement. Lehr testified concerning this in his deposition:

Q. Are you aware of an agreement between the Raceway and First Pennsylvania to modify the loan agreement?
A.' Am I aware of it? Oh, yes, I am aware of it.
Q. Were you asked at any time by First Pennsylvania or anyone else to reaffirm the guaranty that you say you signed?
A. Well, yes, during the summer of 1975 I had a written communication from Dr. Mattioli which included copies, presumably, that were similar to the papers that had been signed in 1972, guaranteeing the bank individually—I forget what they call these various guaranties and indemnifications and all that sort of thing, and they wanted a reaffirmation of these things. In other words, they wanted us to sign it again.

In essence Lehr’s evidence of forgery amounts to nothing more than a bare assertion that he did not sign “Carl Lehr” to the guaranty on which judgment was entered. He does not claim that he did not sign the guaranty; he does assert that he signed nothing on April 25. Lehr offers no testimony or other evidence to corroborate his allegations of forgery. It is an abuse of discretion to open a judgment where only uncorroborated evidence of forgery or fraud has been presented. Carlson v. Sherwood, supra; M. H. Davis Estate Oil Company v. Sure Way Oil Company, supra. The fact that Dr. Mattioli may not have actually witnessed Lehr signing the document in no way advances Lehr’s argument. Moreover, Lehr admits that his signature appears on the pledge and subordination agreements which were also required by the bank. Also the record discloses that the guaranty in issue is identical to the guaranties signed by the six remaining guarantors.

In view of the foregoing, it is clear that Lehr has failed to show forgery by clear, precise and convincing evidence so as to warrant the opening of judgment. I would affirm the lower court.

      . The itemization of amount due contained in the complaint for confession of judgment was as follows:
      ITEMIZATION OF AMOUNT DUE:
      Principal unpaid balance $3,500,000.00
      Interest thru July 31, 1977 208,000.00
      Attorney’s fee (2%) 74,160.00
      Total $3,782,160.00

      . In Carlson v. Sherwood, supra, 416 Pa. at 289, 206 A.2d at 21, the court explained the shifting burden of proof in forgery cases:
      It is true that where a judgment on a note is attacked on the ground of forgery, the note itself is of no weight and from its mere existence no presumption of valid execution arises: Yank v. Eisenberger, 408 Pa. 36, 182 A.2d 505 (1962). Under such circumstances, the burden of proof shifts to the judgment holder to establish the genuineness of the signature on the note. However these principles apply only where the judgment debtor offers clear, direct, precise and convincing evidence in the first instance that the signature is a forgery.

        See also Ritchey v. Mars, supra. The Carlson court resolved an apparent conflict between its holding and that of Yank v. Eisenberg, supra. Although neither Yank nor the more recent case of Wolgin v. Mickman, 233 Pa.Super. 218, 335 A.2d 824 (1975), outline the burden to be imposed on the party alleging forgery, the burden was met in both cases by clear and convincing evidence, in Funds for Business Growth v. Maraldo, 443 Pa. 281, 285, 278 A.2d 922, 924 (1971) it was stated that “... when dealing with a claimed forged signature upon a judgment note ... the burden is put upon the holder of the note to prove the genuineness of the signature, and if affirmative evidence of the forgery remains uncontradicted, the judgment must be opened. Industrial Valley Bank & Trust Company v. Ply Mar Furniture and Carpet Company, Inc., 215 Pa.Super. 430, [258 A.2d 686] (1969).” And as established in Carlson the affirmative evidence of forgery offered in the first instance must be clear, precise and convincing.

      . Although the Majority states that Lehr has raised three issues on appeal, in his brief appellant addresses only the issue of forgery. Therefore, he has abandoned the argument that his signature was obtained through fraud and duress and coercion.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    438 A.2d 612
    COMMONWEALTH of Pennsylvania, v. Edward P. HARRISON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1981.
    Filed Sept. 4, 1981.
    Reargument Denied Jan. 12, 1982.

      Hugh C. Clark, Philadelphia, for appellant.
    Nancy D. Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WICKERSHAM, Judge:

Following a trial by jury, defendant-appellant, Edward P. Harrison, was found guilty of unauthorized use of an automobile and theft by receiving stolen property.

Appellant originally was tried before the Honorable Bernard J. Goodheart and a jury on September 14,1978. A new trial was granted July 11,1979 for reasons unconnected with the present appeal. Appellant was retried commencing Monday, December 17, 1979 before the Honorable William M. Marutani and a jury, and was convicted and sentenced. Defendant alleges in this appeal that he should be discharged because he was not retried within 120 days of the date when his new trial was granted.

When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.

Pa.R.Crim.P. 1100(e)(1).

Inasmuch as the new trial was granted on July 11, 1979, Rule 1100(e)(1) required the Commonwealth to bring the defendant to trial by November 8, 1979. Trial actually commenced, as indicated hereinabove, Monday, December 17, 1979. Appellant poses the question involved in this appeal as follows:

In a situation where the Court allows an indigent defendant’s court-appointed counsel to withdraw from his case, and there are twenty-four days remaining under the time demands of Pa.R.Crim.P. 1100, is the Commonwealth empowered to request a continuance more than five weeks beyond the run-date for the ostensible purpose of giving the defendant and his new counsel ample time to prepare their case?

Brief for Appellant at 2.

The governing principle which must guide our examination of Rule 1100 was recently restated by Justice Kauffman in Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), wherein it was said:

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, [153-154], 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 205 n.4, 409 A.2d 308, n.4 [1979]. The 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.

Id., 493 Pa. at 70-72, 425 A.2d at 369-371.

The difficulty arose in this case due to the successive withdrawal of several court-appointed counsel. A review of the record reflects the following:

July 11, 1979: New trial granted by Judge Goodheart; trial scheduled for October 15, 1979 and defendant represented by Eugene Edw. J. Maier, Esquire.
September 21, 1979: Eugene Edw. J. Maier, Esquire permitted to withdraw as counsel.
September 26, 1979: Stephen E. Levin, Esquire appointed to represent defendant.
October 11, 1979: Stephen E. Levin, Esquire permitted to withdraw as counsel.
October 11, 1979: Norman Ackerman, Esquire appointed to represent defendant.
October 15, 1979: Scheduled trial listing; Norman Ackerman, Esquire permitted to withdraw as counsel; Court continues case, trial set for December 17, 1979 and new counsel to be appointed.
October 15, 1979: Hugh C. Clark, Esquire appointed to represent defendant.
November 8, 1979: Commonwealth files a timely Pa.R. Crim.P. 1100(c) petition to extend; hearing set for November 20, 1979.
November 20, 1979: Rule 1100(c) extension hearing continued to December 14, 1979 by mutual agreement of the parties.
December 14, 1979: Rule 1100 hearing held before the Honorable Abraham J. Gafni; Judge Gafni grants extension of time for trial until January 10, 1980.
December 17, 1979: Trial commences before the Honorable William M. Marutani sitting with a jury; at the conclusion of trial defendant is again convicted of all charges. Defendant represented by Hugh C. Clark, Esquire at trial.
May 12, 1980: Post-verdict motions argued and denied; defendant sentenced. Hugh C. Clark, Esquire representing defendant on appeal.

The Commonwealth filed its Petition to Extend on November 8,1979. Since this was within the 120-day period following grant of a new trial, the application was timely filed. While filing of petitions at the earliest possible date may well be the better practice, filing on the last day is not fatal. Commonwealth v. Schmoyer, 280 Pa.Super. 391, 421 A.2d 786 (1980).

In Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976), the court advised:

Henceforth, the trial court may grant an extension under rule 1100 (c) only upon a record showing: (1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business. . . .

We agree with the conclusion reached by Judge Marutani in his opinion filed July 10, 1980 sur Pa.R.A.P. 1925 in which he said:

Although this case may present a close question as to whether the extension was properly granted, we have ruled that it was. The Commonwealth was ready to try defendant on October 15, 1979. The delay that resulted thereafter was due to an attempt by the district attorney to insure that the defendant could not raise a claim of ineffective assistance of counsel. The judge who heard the Rule 1100 extension Petition found no violation of the defendant’s rights in this attempt. We affirm this finding.

Id. at 10 (footnote omitted).

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3928 and 18 Pa.C.S. § 3925 respectively. Unauthorized use of an automobile is a misdemeanor of the second degree, authorizing a maximum penalty of two years imprisonment or $5,000.00 fine or both. Receiving stolen property is a felony of the third degree if the property is an automobile, and the maximum penalty is seven years imprisonment or fine of $15,000.00 or both. Post trial motions were heard and denied and the defendant was sentenced to concurrent prison terms of one to two years on the charge of unauthorized use of an automobile and two to five years on the charge of receiving stolen property. This appeal followed.

      . In Commonwealth v. Metzger, 249 Pa.Super. 107, 375 A.2d 781 (1977), we were confronted with the issue of whether a prosecutor exercised due diligence when he unilaterally postponed a defendant’s trial because he did not think a fair jury pool was available. We found that the prosecutor had acted commendably, stating, “We cannot find that the prosecutor failed to exercise due diligence when the delay engendered was so obviously intended to foster the fair administration of justice.” Id., 249 Pa.Super. at 116, 375 A.2d at 786. Lower ct.op. at 10 n. 24.


author: SHERTZ, Judge:

text:
    438 A.2d 614
    Patricia L. RAY, Appellant, v. Terry T. RAY.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed Oct. 9, 1981.
    Reargument Denied Jan. 21, 1982.

      Patricia L. Ray, Freeport, appellant, in pro. per.
    Terry T. Ray, Pittsburgh, did not file a brief on behalf of appellee, in pro. per.

      Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal from an order awarding custody of two minor children, Jacques Baer Ray and Molly Elizabeth Ray, to appellee-father. Appellant-mother contends the trial court erred in several respects. We are, however, unable to address the merits of this appeal and remand for further proceedings consistent with this opinion.

The record reveals that the order in question, the third relating to the custody of these children, was issued on October 25, 1977. Appellant’s timely notice of appeal was filed on November 20, 1977. For reasons which are somewhat unclear, argument was delayed until April 13, [1981]. This appeal, therefore, is from an order and a record which are more than three years old.

It is axiomatic that a custody determination has, as its paramount consideration, the best interests of the children. Gerald G., Jr. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981); Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980). In considering the custody order of a lower court, the scope of review by this court is of the broadest type. Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979). Such review, to be meaningful, must be predicated upon a record which is complete and a trial court opinion which is comprehensive. Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979). In this instance, the record is stale, thereby incomplete, making a meaningful review by this Court impossible.

Because of deficiencies in the record we remand with the following instructions. The lower court shall allow introduction of any additional evidence pertinent to the issue of custody. Such evidence shall include, but shall not be limited to, the present living conditions of each party, the effect on the children of a change in custody at this juncture, and any other circumstances reflective of a change in the children’s best interests since the hearing of October, 1977. In addition, the trial court shall file a comprehensive opinion demonstrating a thorough analysis of the record and the specific rationale for its ultimate conclusion. In so doing the trial court shall address the fitness of the parties, the credibility of the witnesses, the home surroundings of the parties and the care and condition of the children. Gerald G., Jr. v. Theresa G., 284 Pa.Super. 498, 509, 426 A.2d 157, 162 (1981) (Brosky, J., concurring). The testimony of the children, when interviewed, shall be transcribed, and the trial court shall make findings as to the children’s competence to testify, their preference, and the appropriate weight to be given such testimony. Gerald G., Jr., 284 Pa.Super. at 507-508, 426 A.2d at 161. In the interim the children shall remain in the custody of their father.

Order vacated and remanded for proceedings in accordance with this opinion. This Court does not retain jurisdiction.

CAVANAUGH, J., concurs in the result.

      . At oral argument appellant-mother, an attorney representing herself, stated the Prothonotary’s Office of Allegheny County was repeatedly unable to assemble the requisite record for appeal.


text:
    438 A.2d 616
    ABC SEWER CLEANING COMPANY, Appellant, v. BELL OF PENNSYLVANIA and The Reuben H. Donnelley Corp.
    Superior Court of Pennsylvania.
    Argued March 2, 1981.
    Filed Dec. 11, 1981.

      Robert H. Dickman, Philadelphia, for appellant.
    Harriet F. Withstandley, Philadelphia, for Bell, appellee.
    Thomas E. Zemaitis, Philadelphia, for Donnelley, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   WICKERSHAM, Judge:

On April 30,1979, plaintiff-appellant, A.B.C. Sewer Cleaning Company, on behalf of itself and all others similarly situated, commenced this action in the Philadelphia Court of Common Pleas, seeking an accounting, injunctive relief and damages. The gravamen of the cause of action is that the defendants, Bell of Pennsylvania and The Reuben H. Donnelley Corp. (hereinafter Bell and Donnelley), are the beneficiaries of a monopoly on the publication and distribution of classified telephone directories popularly known as the “Yellow Pages”; that they have a common law duty as such beneficiaries to serve the public at reasonable rates; and that they have conspired together to violate that duty. The essence of the scheme, plaintiff alleges, is the continual creation of new additions to the Yellow Pages directories distributed in the City of Philadelphia. Each “new” directory reaches a smaller audience, so that a purchaser of Yellow Pages advertising who wishes to reach all potential customers throughout Philadelphia must purchase space in more directories, each reaching a smaller audience, at a growing aggregate cost (see Amended Complaint, paras. 20-27).

In accordance with Pa.R.C.P. No. 1703(b), the case was assigned to the Honorable Jacob Kalish.

The defendants filed preliminary objections in the nature of demurrers which were overruled by Judge Kalish November 29, 1979. The defendants then filed responsive pleadings.

Thereafter, plaintiff filed its Motion for Class Action Certification, defining the proposed class as:

All persons which, continuously from any date prior to March 1, 1978, purchased display advertisements in any edition of the Philadelphia Yellow Pages and which thereafter purchased display advertisements in the same edition and in either the Business Industrial Directory or any Community Directory, as well.

As used in the foregoing class description, the following definitions apply:

(a) Person means an individual, partnership, corporation or other entity;

(b) Display advertisements means all Yellow Pages advertising other than service regular listings.

(c) Directory means classified telephone directory or Yellow Pages.

A hearing was held on the certification motion on August 18 and 19, 1980. At the hearing, Judge Kalish correctly noted that the question before him was legal, not factual, and counsel for defendants agreed that those matters admitted in the pleadings were stipulated for purposes of the hearing. Reproduced Record at 38a-39a. The record reveals the following:

Plaintiff has, since 1935, provided residential, commercial and industrial plumbing services on a wholesale and retail basis to customers throughout the City of Philadelphia, and its environs. The company has some thirty-two employees and gross revenues in excess of three-quarters of a million dollars. Reproduced Record at 35a-36a.

Bell is a public utility which provides telephone services and, in conjunction therewith, publishes the Yellow Pages directories. Donnelley is Bell’s exclusive agent in Philadelphia for solicitation of advertisements in the Yellow Pages. Amended Complaint and Answers, (hereinafter “pleadings”), paras. 14-16.

The Yellow Pages are a unique and distinctive form of advertising. They are distributed free of charge “to every specific place where there is a telephone—at home, business or industry. ...” Reproduced Record at 37a-38a; pleadings, para. 18. The majority of plaintiff’s customers are obtained through Yellow Pages advertising. Reproduced Record at 37a.

The defendants set the rates for Yellow Pages display advertising with no governmental interference or regulation whatsoever. Pleadings, para. 17.

Until 1966, one edition of the Yellow Pages was distributed throughout the City of Philadelphia. In that year, the defendants divided the city into four geographic sections, publishing a separate Yellow Pages for each section. Thereafter, an advertiser such as plaintiff, which sought its customers throughout the city, had to purchase advertising in not one, but four, separate directories. Reproduced Record at 62a-63a, 104a.

In 1978, a fifth directory was created. This was the Business Industrial Directory, or “BID Book”. An advertiser seeking commercial or industrial customers now had to advertise in the BID Book; all others had to advertise in what was now designated the “People Book”. Thereafter, an advertiser such as plaintiff which sought its customers in all categories had to purchase advertising in no less than five directories. Reproduced Record at 64a-65a, 105a; pleadings, para. 22.

The defendants proceeded in 1978 to create a new variety of Yellow Pages for Philadelphia. This was the “Community Directory” for a particular neighborhood or section within one of the four geographical divisions of the city. Telephone subscribers within a designated community would thus receive at least two directories: the “People Book” and the “Community Book” and, in the case of a business subscriber, the “BID Book” as well. The Defendants have created four community directories. Reproduced Record at 38a, and have so promoted them as to make them the primary directory within each community. See Reproduced Record at 99a. Now an advertiser such as plaintiff, seeking all categories of customers throughout Philadelphia, must advertise in the nine separate directories.

There are, by plaintiff’s count, approximately three hundred (300) advertisers bearing the same burden as the plaintiff. Reproduced Record at 41a-42a, 100a-103a. These advertisers constitute the proposed class. Judge Kalish ruled that the class was composed of about two hundred and fifty (250) parties and was “adequately defined with some precision.” Reproduced Record at 196a; lower ct. op. at 5.

The defendants’ evidence consisted of an affidavit of Bell’s District Staff Manager-Directory-Sales and Service, which was largely devoted to plaintiff’s Yellow Pages advertising history; included were 75 pages of copies of the duplicative display advertisements purchased by plaintiff from the defendants. Reproduced Record at 104a-191a.

On August 28, 1980, Judge Kalish entered his order denying plaintiffs Motion for Class Action Certification. Hence, this appeal.

As we said in Bell v. Beneficial Consumer Discount Company, 241 Pa.Super. 192, 360 A.2d 681 (1976):

Broad discretion is vested in the trial court to determine ‘definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class.’

Id., 241 Pa.Super. at 205, 360 A.2d at 688 (quoting Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976)).

In Price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 (9th Cir. 1974):

A class action determination under Fed.RCiv.P. 23 is one of a trial court’s considered discretion. As was stated in City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir.1969), ‘the judgment of the trial court should be given the greatest respect and the broadest discretion, particularly if ... he has canvassed the factual aspects of the litigation.’ This is so because the district court is in the best position to consider the most fair and efficient procedure for conducting any given litigation. Such a determination by the court will not be disturbed on appeal unless the party challenging it can show an abuse of discretion. Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973); Castro v. Beecher, 459 F.2d 725 (1st Cir.1972); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.1972); City of New York v. International Pipe & Ceramics Corp., supra.

The prerequisites to class certification are set forth in Pa.R.C.P. No. 1702, as follows:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Recently in Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 431 A.2d 883 (1981) (Opinion by Mr. Chief Justice O’Brien), our supreme court held:

Rule 1708(a) of the Pennsylvania Rules of Civil Procedure provides that the court, in exercising its discretion to certify or to decline to certify a class action, shall consider, among other factors:
‘(1) whether common questions of law or fact predominate over any question affecting only individual members.’
Further, in Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976), this Court ruled that an essential requirement for maintaining a class action is the existence and predominance of common issues shared by all class members which can be justly resolved in a single proceeding.

Id., 494 Pa. at 343, 431 A.2d at 886.

The gravamen of plaintiff’s cause of action is that a de facto monopoly on any service needed by the general public causes that service to become “affected with public interest” and subject to regulation; in the absence of regulation, there is an implied affirmative obligation upon the monopoly to be reasonable in dealing with the public. Hertz Drivurself Stations v. Siggins, 359 Pa. 25, 34, 38, 58 A.2d 464, 470, 472 (1948). Further, the defendants have violated this affirmative obligation by arbitrarily multiplying the number of editions of the Yellow Pages solely and purposefully in order to multiply their revenues. In addition, the multiplication has not increased service; plaintiff and the members of the class are compelled to pay ever-increasing costs for an ever-increasing number of directories, which reach the same audience as was reached before the proliferation was begun. In essence, plaintiff argues, the defendants treat Philadelphia Yellow Pages advertising as a pie. For an advertiser to buy the whole pie, he must buy a continually increasing number of slices, of continually decreasing size, at continually increasing cost.

The proper focus of the lower court’s inquiry should have been on the single objective question of whether the defendants abused their monopoly position by imposing an unreasonable rate upon the members of the class. If plaintiff is able to prove this violation by the defendants of their common law duty not to abuse their position, the only remaining inquiry will be as to the extent of that abuse by the defendants. An inquiry as to why a member of the plaintiff class advertised in the Yellow Pages, and thus became a victim of the defendants, is clearly unnecessary and irrelevant. Any p'erson who has chosen—for any reason—to advertise in the Yellow Pages has a right to advertise at no more than a reasonable rate. The question of what rate is reasonable for the defendants to charge will be answered objectively, one time, for all members of the class.

The only remaining question, if unreasonableness be proved, will be the objective amounts of damage to which individual class members are entitled. Presumably, the same proportion will apply to each class member. Even if there are differences in the amounts of damages, however, a class action is clearly not barred, as was recognized by the lower court. Reproduced Record at 77a. Ross v. Shawmut Development Corp., 460 Pa. 328, 333, 333 A.2d 751, 753 (1975).

Viewed in light of the issues in the case, as delineated by the pleadings, it is clear that there is one question of fact—the reasonableness vel non of the defendants’ exactions; and one question of' law—whether the defendants violated their common law duty not to impose unreasonable rates. Viewed in this light, the representative plaintiff is indeed representative of the class and the second and third prerequisites of Pa.R.C.P. No. 1702 are satisfied.

The court below did not analyze the fourth prerequisite of Rule 1702, that the representative party be an “adequate” representative, under the criteria of Rule 1709; nor did the court address the fifth prerequisite, that the class action be a “fair and efficient” vehicle for the case. Presumably, this was because plaintiff’s evidence at the certification hearing as to its capacity to represent the class was largely unchallenged. Indeed, the only evidence or argument proffered by the defendants at the certification hearing went only to the “common question” issues to which the lower court’s opinion is addressed.

Plaintiff below alleges that to maintain a class action would serve a beneficial social purpose and also would avoid a multiplicity of suits. We agree. The case, however, is remanded to the court of common pleas for a determination as to prerequisites (4) and (5) of Pa.R.C.P. No. 1702 under the criteria of Pa.R.C.P. Nos. 1709 and 1708, respectively. See Ablin, Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa.Super. 40, 435 A.2d 208 (1981).

Reversed and remanded for proceedings consistent with this opinion.

      . The Pennsylvania Public Utility Commission does not have jurisdiction over this case involving yellow page advertising.
      In the instant case, the Commission found that the standard type listing in the classified directory is primarily for convenience in locating the telephone number of business and professional subscribers more quickly, whereas the bold face listings and larger displays are primarily for advertising purposes. In either case, the element of advertising is present and this is recognized in the contracts introduced in the record. In each instance the printed portion of the contract is designated an ‘application for advertising’. As an advertising medium the classified directory is similar to the sale of appliances or equipment by utilities. Such activities are normally not within the jurisdiction of the Commission. Erie Lighting Co. v. Pa. P.U.C., 131 Pa.Super. 190, 198 A. 901. See also Section 912 of the Public Utility Law, 66 P.S. § 1352. Applying this principle to the facts, the Commission concluded that the classified directory is subject to its control only to the limited extent that each subscriber, who so desires, is entitled to a free listing therein. By voluntarily granting such free listings to subscribers the Company has made a ‘dedication’ to that extent, but other listings in the classified directory, particularly the listings of non-subscribers, are not a part of the Company’s public telephone service.

        Felix v. Pennsylvania Public Utility Commission, 187 Pa.Super. 578, 583, 146 A.2d 347, 350 (1958).
      However, yellow pages listings and advertisements are generally considered outside the realm of necessary services and are usually the subject of a private contract between the customer and the telephone company.... These contracts, containing limitations of liability similar to those in the tariffs, are generally enforced against the customer even in some jurisdictions which have allowed recovery to subscribers against the telephone company for errors in white pages listings....
      In the present case, one of appellant’s complaints was the omission of his individual business listing in the yellow pages. Because appellant was a business subscriber he was entitled to have his name listed in the yellow pages under the classification ‘attorneys’ as part of his service. By providing this service Pennsylvania courts have concluded that the telephone company has dedicated that portion of the classified directory to the public, even though any additional, paid listing or advertisement is considered a matter of private contract.

        Behrend v. Bell Telephone Company, 242 Pa.Super. 47, 71-72 n.16, 363 A.2d 1152, 1164-1165 n.16 (1976), vacated on other grounds, 473 Pa. 320, 374 A.2d 536 (1977).

      . Brief for Appellant at 3 7.

      . In Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 229, 348 A.2d 734, 736 (1975), the Supreme Court of Pennsylvania held that orders denying class action status are appealable as final orders. Appellant frames the statement of questions presented in this appeal as follows:
      Where monopolists unlawfully impose unreasonable rates upon a class of persons, which class includes the proposed representative party in a class action lawsuit, for reasons and in a manner the same as to each member of the class,
      A. Is not the lawfulness of the Defendant’s conduct a ‘common question of law’?
      B. Is not the reasonableness of the rates a ‘common question of fact’?
      C. Is not the claim of the representative party ‘typical’?
      II
      May a court properly deny a motion for class action certification because it is ‘reluctant to involve’ itself in the difficult merits of a case?
      III
      Are businessmen entitled to less protection from our courts than any other segment of our society?
      Brief for Appellant at 2.

      . Both the cases of Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976), cert. denied 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91, (1976) and Bell v. Beneficial Consumer Discount Company, 241 Pa.Super. 192, 360 A.2d 681 (1976), were decided under the old rule governing class actions. Pa.R.C.P. No. 2230. There is nothing in the new class action rules Pa.R.C.P. Nos. 1701-16, to suggest any modification of this discretion. In fact, Rules 1708 and 1709 plainly imply a continuation of substantial discretion by stating certain criteria to be considered but without stating the weight to be accorded each criterion or rendering the criteria exclusive.

      . The Pennsylvania Rules of Civil Procedure governing class actions include Pa.R.C.P. Nos. 1701-1716.

      . Appellees do not challenge the lower court’s determination that the first prerequisite of Pa.R.C.P. No. 1702 requiring numerosity was satisfied.
      The evidence indicates that about two hundred and fifty (250) parties are involved in the proposed class. This is not based on mere speculation but on the testimony of a corporate officer of the representative party and the exhibit (Ex. P.2) prepared by him and introduced into evidence. The Court finds that the class is adequately defined with some precision. The exact number and identities can be readily obtained. The prerequisite of numerosity is satisfied. Penn Galvanizing Company v. City of Philadelphia, 388 Pa. 370, 130 A.2d 511 (195[7]).
      Reproduced Record at 196a; lower ct. op. at 5.
      A finding that the numerosity requirement is satisfied must be based upon the following:
      an examination of ‘whether the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should such potential plaintiffs sue individually.’ Temple University of the Commonwealth System of Higher Education v. Penna. Dept. of Public Welfare, 30 Pa. Cmmw. 595, 603, 374 A.2d 991, 996 (1977).

        Ablin, Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa.Super. 40, 50 n.5, 435 A.2d 208, 214 n.5 (1981).
      We conclude that 250 potential litigants pose such an imposition and we, accordingly, adopt the lower court’s finding that the first prerequisite of Rule 1702 is satisfied.


author: SPAETH, Judge:

text:
    438 A.2d 969
    Charles W. ECENBARGER and Annelisie E. Ecenbarger v. Mildred A. LESOINE and Ross R. Lesoine. Appeal of Ross R. LESOINE.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Dec. 4, 1981.

      C. Daniel Higgins, Stroudsburg, for appellants.
    John J. Pentz, Jr., Stroudsburg, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a final decree in equity. Appellees, Charles W. and Annelisie E. Ecenbarger, sought by their complaint an order enjoining Ross R. Lesoine, Jr., and his mother, Mildred A. Lesoine, from using a certain road, and requiring them to destroy the road, restore the surface, and pay damages. In the answer to the complaint it was admitted that Ross R. Lesoine, Jr., had constructed the road where appellees alleged he had, but it was claimed that he had the authority to do so because a thirty-three foot easement existed along the entire length of the line dividing his property from appellees’ property. The Chancellor entered a decree nisi dismissing the action against Mildred A. Lesoine and denying appellees’ claim for monetary damages, but ordering Ross R. Lesoine, Jr., to remove the portion of the road in question and to restore appellees’ property to the condition in which it had been before that portion was built. Ross R. Lesoine, Jr., filed exceptions. On June 12, 1980, the lower court, sitting en banc, dismissed the exceptions and made the decree nisi a final decree. On appeal, Ross R. Lesoine, Jr., argues that the lower court erred in not finding that he had an easement by implication. We affirm.

Ethel G. Lesoine, the parties’ common grantor, owned a large tract of land in Price Township, Monroe County. She granted, by a deed dated September 6, 1960, an easement to Harry S. Fox and Pardee Place “as and for a passageway.” A road built on this easement ran north to south, turning slightly to the west at its southern extremity. It may be illustrated as follows:

On January 9, 1963, Ethel G. Lesoine divided her tract of land into eastern and western segments and conveyed the segments to her two sons, John F. Lesoine and Ross R. Lesoine, Sr., and their respective wives, Minnie L. and Mildred A. Lesoine, as tenants in common. The western segment consisted of approximately seven acres, the eastern of approximately twelve acres.

The deed conveying the western segment excepted from the conveyance the road previously granted to Harry S. Fox and Pardee Place. It read:

EXCEPTING also the roadway, 33 feet wide, along the easterly line of the remaining tract above, which roadway was granted by Ethel G. Lesoine to Harry S. Fox and Pardee Place by grant dated September 20, 1960, and recorded in the aforesaid office in Deed Book Vol. 272, page 221.
R. 134a.

Thus, by referring to the grant to Harry S. Fox and Pardee Place, the road was described as pictured above—turning to the west at its southern extremity. However, the deed conveying the eastern segment described the western boundary of that segment as follows:

... to an old stone corner; thence along other land of Ethel Lesoine, grantor hereof, and along the East side of a 33 feet wide road, which shall be for the use of the grantor and grantees hereof, their heirs and assigns .... R. 133a (emphasis added).

This description resulted in an inconsistency. The calls, courses and distances in the deed conveying the eastern segment divide the property by a straight north-south line. For the most part, this line runs along the eastern edge of the road built by Harry S. Fox and Pardee Place. However, it does not turn as the road turns west, but continues straight to the “old stone corner.” It may be illustrated as follows:

Thus, while the deed conveying the eastern segment stated that its western boundary ran “along the East side of a 33 feet wide road ... ”, the road itself did not run entirely along that boundary, but instead turned to the west at its southern extremity.

On December 17, 1971, John F. and Minnie L. Lesoine and Mildred A. Lesoine, by then widow of Ross R. Lesoine, Sr., exchanged their interests in the two segments so that their holdings in common were divided: Mildred conveyed to John and Minnie her interest in the western segment; and John and Minnie conveyed to Mildred their interest in the eastern segment. Mildred thus acquired full title to the eastern segment, and John and Minnie, full title to the western segment. In this exchange, the inconsistency just noted was repeated. The deed conveying Mildred’s interest in the western segment excepted only the existing roadway for an easement of passage. It stated:

EXCEPTING also the roadway, 33 feet wide, along the easterly line of the remaining tract above, which roadway was granted by Ethel G. Lesoine to Harry S. Fox and Pardee Place by grant dated September 20, 1960.
R. 114a (emphasis added).

The deed conveying John’s and Minnie’s interest in the eastern segment, however, stated in its description:

... to an old stone corner, thence North 13 degrees 39 minutes East, along the East line of a 33 feet wide right-of-way, which right-of-way shall be for the use of the Grantor and Grantee hereof, their Heirs and Assigns
R. 115a (emphasis added).

Thus, the deed conveying Mildred’s interest in the western segment to John and Minnie described a right-of-way that looked like this:

However, the deed conveying John’s and Minnie’s interest in the eastern segment to Mildred described a right-of-way that looked like this:

On August 23, 1972, John F. and Minnie L. Lesoine conveyed their entire interest in the western segment to Alta Janosko. That deed excepted the road by describing it as turning to the west at its southern extremity. Janosko subdivided the western segment and conveyed a lot, approximately one acre in size, to Charles W. and Annelisie E. Ecenbarger, who are the appellees here. It was later discovered that the deed had calls reversed 180 degrees in the north-south direction. The property was then re-conveyed to Janosko and back again to the Ecenbargers. The corrected deed, in addition to changing the calls, added the phrase “in part”:

.... thence from the point of beginning along lands of Mildred A. Lesoine and, in part, along the eastern edge of the thirty-three foot right-of-way ....
R. 124a (emphasis added).

On June 5, 1975, Mildred A. Lesoine conveyed to her son, Ross R. Lesoine, Jr., who is the appellant here, a portion of the eastern segment. In pertinent part the deed stated:

BEGINNING at a point on the easterly line of a thirty-three (33') foot wide road, which point is also the corner of Lot 25 ... . thence along Lots 27 and 25 North 20 degrees West 177 feet to a point on the easterly side of the aforesaid thirty-three (33') foot wide road; thence along Lot 25 and also along aforesaid thirty-three (33') foot wide road North 13 degrees 39 minutes East 83 feet to the place of BEGINNING.
BEING part of the premises which John F. Lesoine and Minnie L. Lesoine, his wife, by Deed dated December 17, 1971, and recorded in the Office for the Recording of Deeds, &c., in and for Monroe County ... in Deed Book Vol. 412, page 1081, granted and conveyed unto Mildred A. Lesoine, widow, Grantor hereof, in fee.
TOGETHER with the full right, liberty, and use of a certain thirty-three (33') foot wide right-of-way referred to in the third course and distance recited in a Deed from John F. Lesoine and Minnie L. Lesoine, his wife, to Mildred A. Lesoine, widow, dated December 17, 1971, and recorded ... in Deed Book Vol. 412, page 1081, said right-of-way being for the common use of the Grantor and Grantee herein, and their heirs, successors and assigns. R. 128a (emphasis added).

By this reference to “the third course and distance in a Deed from John F. Lesoine and Minnie L. Lesoine, his wife, to Mildred A. Lesoine” the road was described not as turning to the west at its southern extremity but as proceeding straight to the old stone corner.

The controversy between the parties may thus be summarized as follows: Appellees, the Ecenbargers, own a triangular property, with a straight north-south eastern boundary, and with a road running along most of the boundary but angling to the west across the southern corner of the property. Appellant, Ross R. Lesoine, Jr., owns a property on the other—eastern—side of the Ecenbarger property. He claims, however, that he has an easement along the entire boundary. Thus:

Appellant claims his easement by implication of law. He contends that this implication arises because the deed conveying John F. and Minnie L. Lesoine’s interest in the eastern segment described a right-of-way for the length of its western boundary, i.e., all the way along the line dividing appellant’s property from appellees’, down to the old stone corner. Brief for Appellant at 18, 22-30. Appellant quotes an often-repeated proposition of law:

Where a street or other way is called for as a boundary in a conveyance of land, and the grantor owns the fee in the land represented as the way or street, he is estopped, as against the grantee to deny that an easement in such way passes to the grantee by implication of law. In such a case, it is immaterial that the way to which reference is made does not exist as such at the time of the transfer. Justin J. Powell, Inc. v. Wian, 456 Pa. 35, 42, 318 A.2d 346, 350 (1974) quoting 25 Am.Jur.2d Easements and Licenses § 25 (1966).

See also, Jones v. Sedwick, 383 Pa. 120, 117 A.2d 709 (1955); Philadelphia Storage Battery Co. v. Philadelphia, 323 Pa. 17, 186 A. 103 (1936); 25 Am.Jur.2d Easements and Licenses § 25, 46 A.L.R.2d 461.

The fallacy in appellant’s argument is that it overlooks the requirement stated in the words, “and the grantor owns the fee.” One cannot grant an easement in property one does not own. See Kelly v. Phillips, 13 Del.Ch. 261, 118 A. 230 (1922); Wimpey v. Smart, 137 Ga. 325, 73 S.E. 586 (1912); Cole v. Hadley, 162 Mass. 579, 39 N.E. 279 (1895); Brainard v. Boston & N.Y.C.R. Co., 78 Mass. (12 Gray) 407 (1859); See also 25 Am.Jur.2d Easements and Licenses § 25, 46 A.L.R.2d 461, 474 [c]. Here, the grantors, John F. and Minnie L. Lesoine, did not own the fee; they were, when they made the conveyance on which appellant relies, tenants in common with Mildred A. Lesoine. When property is thus jointly owned, all of the co-owners must join in the deed before an easement on their jointly owned property will arise, for “one tenant in common alone cannot create an easement which can be enforced against his co-owners.” Ladner, Conveyancing in Pennsylvania § 11.02(a). As the Chancellor noted, the record is devoid of any evidence suggesting that Mildred A. Lesoine conveyed her interest in the western segment to John F. and Minnie L. Lesoine, before they conveyed their interest in the eastern segment to her. Appellant’s claimed theory of an implied easement must therefore fail.

Neither may it be maintained that appellant otherwise acquired an easement by implication. In Thomas v. Deliere, 241 Pa.Super 1, 359 A.2d 398 (1976), we stated:

When an easement is not expressed and is sought to be attached to the grant of a fee, the implication must clearly arise from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction. Lerner v. Poulos, 412 Pa. 388, 194 A.2d 874 (1963); Schwoyer v. Smith, 388 Pa. 637, 131 A.2d 385 (1957); Spaeder v. Tabak, 170 Pa.Super. 392, 85 A.2d 654 (1952); Walker v. Walker, 153 Pa.Super. 20, 33 A.2d 455 (1943). See also Restatement, Property, § 474. In determining whether the circumstances under which a conveyance of land is made create an implied easement, § 476 of the Restatement suggests that the following factors are important: “(a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of the necessity to the claimant, (f) whether reciprocal benefits result to the conveyor and the conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.”
Id., 241 Pa.Super. at 4, 359 A.2d at 399.

The “res gestae” of this transaction include a recognition that two deeds were “swapped.” In such circumstances, we think an old rule of interpretation useful.

It is well settled that when several instruments in pari materia are executed by the same parties at or about the same time, they are to be treated as one transaction . . . “and we cannot separate what the parties have joined and look for their understanding and intentions in [just] one [of their] instruments . . . . ”
Nichols v. Nichols, 149 Pa. 172, 175, 24 A. 194 (1892) quoting Cummings v. Antes, 19 Pa. 287 (1852).

Applying this rule, and looking at both deeds, we find the inconsistency that we have sought to illustrate by the foregoing diagrams: The deed conveying John F. and Minnie A. Lesoine’s interest in the eastern segment purports to grant a right-of-way along the entire boundary of the western segment, while the deed conveying Mildred A. Lesoine’s interest in the western segment fails to mention even the existence of such an easement. The inference is almost inescapable that the purported right-of-way arose from a conveyancing error—a natural, if regrettable, one, considering that for most of its length, the road did run along the boundary between the two properties. Appellant has not alleged, nor does the record suggest, any need for the easement he claims, so far as the beneficial enjoyment of appellant’s land is concerned. See Thomas v. Deliere, supra, 241 Pa.Super. at 5 n. 2, 359 A.2d at 400 n. 2; DePietro v. Triano, 167 Pa.Super. 29, 74 A.2d 710 (1950). Indeed, the land had not been used as a road until appellant, over the protests of appellees, built his road, more than four years after the time of the alleged creation of the easement.

Affirmed.

HOFFMAN, J., concurs in the result.

      . Although this deed refers to a “grant dated September 20, 1960,” our review of the record discloses that in fact the deed by which Ethel G. Lesoine granted Harry S. Fox and Pardee Place a road was dated September 6, 1960. See R. 116a.

      . Appellant has also argued that appellees should be estopped from denying appellant’s claim of an easement because an unrecorded map showed a road plotted on appellant’s claimed right-of-way. The map, however, was not recorded, and is marked on its face, “Void— Do Not Use.” It thus neither provided notice to appellees, nor, if found, should it have been relied on.
      Appellant also argues that the Chancellor erred in admitting John F. Lesoine’s oral testimony into evidence to demonstrate his lack of intent to create an easement. Since we have concluded on the basis of the documentary evidence alone that no easement was created, we need not consider this argument. A correct decision will be sustained even if the reason given by the court below to sustain its decision is erroneous. Justin J. Powell, Inc. v. Wian, supra, 456 Pa. at 40 n. 3, 318 A.2d at 349 n.3; City L.O.H., Inc. v. Hotel, M. & C.E. Union, 413 Pa. 420, 197 A.2d 614 (1964).


author: CERCONE, President Judge:

text:
    438 A.2d 974
    COMMONWEALTH of Pennsylvania v. Thomas J. NOVICK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1980.
    Filed Dec. 11, 1981.
    Petition for Allowance of Appeal Granted May 7, 1982.

      Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Appellant, Thomas J. Novick, takes this appeal from his conviction for three counts of burglary. In his brief, appellant argues that the physical evidence discovered in appellant’s residence and appellant’s oral and written inculpatory statements should have been suppressed as the fruits of an unlawful arrest made beyond the territorial limits of the arresting officers’ political subdivision. We find appellants argument to have merit; therefore, we reverse his convictions.

The underlying factual situation of the instant appeal is as follows. On the evening of April 14, 1978, at approximately eight o’clock, Officer Robert Manlove of the Camp Hill Police Department was driving in a marked police car, although he was not wearing his police uniform at the time. The officer had stopped at an intersection in the borough of Camp Hill when a passing motorist, named John W. Metzger, told Officer Manlove that he (the motorist) had just driven past the Ritzman Associates Building and had seen a man with light colored hair and wearing a brown jacket standing on the sidewalk between the Ritzman Building and an adjacent private home. The Ritzman Building, although only seven blocks away from Officer Manlove’s location, was not located in the Borough of Camp Hill, which was Officer Manlove’s municipality, but was instead located in the Township of Hampden.

Upon receiving this information, Officer Manlove immediately proceeded to the Ritzman Building. As he embarked upon the scene, the officer radioed the Hampden Township Police to advise them of a possible burglary in process at said building and asked them if they requested assistance. The Hampden Police replied in the affirmative, whereupon Officer Manlove proceeded to the scene, arriving there simultaneously with another Camp Hill police officer, Officer Donald Tappan. Upon their arrival, Officers Manlove and Tappan observed appellant walking across the parking lot, approximately twenty feet from the Ritzman Building. The officers drove their respective squad cars with red lights flashing into the lot and confronted appellant. Officer Tappan thought he recognized appellant as being a suspect connected with three suspicious fires which had occurred on the previous day, April 13, 1978, in the Camp Hill/Hampden area, two of which had occurred within a block of the Ritzman Building. On that basis the two Camp Hill officers arrested and handcuffed appellant and “read him his Constitutional Rights.” Approximately three to five minutes after this arrest was made, officers of the Hampden Township Police Department arrived. Appellant was subsequently driven to the Hampden Township police station by Officer Tappan, one of the Camp Hill police officers.

At issue here is the question whether the Camp Hill police officers had the authority to legally arrest appellant in Hampden Township. Before addressing this question, it must first be noted that appellant’s arrest under these circumstances cannot be supported by the law regarding “hot pursuit”; this point is conceded by the Commonwealth. See Commonwealth v. Bable, 254 Pa.Superior Ct. 72, 385 A.2d 530 (1978) (where arrest of accused by officer of adjoining municipality was result of hot pursuit which originated outside the arresting officer’s municipality, such arrest was unlawful because the officer had no authority to arrest anyone outside the officer’s own municipality). Rather, the Commonwealth relies upon the statute which permits municipalities to enter into mutual aid agreements for the furnishing of police and fire protection. In pertinent part, this statute reads:

“Joint contracts for police and fire protection. To enter into contracts with the proper authorities of near or adjacent cities, boroughs, or townships, either for mutual aid or assistance in police and fire protection, or for the furnishing to, or receiving from, such cities, boroughs, or townships, aid and assistance in police and fire protection, and to make appropriations therefor. . . When any such contract has been entered into the police, firemen or fire police of the employing city, borough or township shall have all the powers and authority conferred by law on city, borough or township police, firemen, or fire police in the territory of the city, borough or township which has contracted to secure such service.”

The Act of February 1, 1966, P.L. (1965) 1743, No. 581, § 1202, 53 P.S. § 46202(35) (1966).

It has been held that only municipalities may enter into such agreements, and that tacit agreements between police departments of adjoining municipalities purporting to authorize such mutual aid are without legal effect to empower the police of one municipality to arrest someone in the other municipality. Commonwealth v. Anzalone, 269 Pa.Superior Ct. 549, 410 A.2d 838 (1979); Commonwealth v. Bable, 254 Pa.Superior Ct. 72, 385 A.2d 530 (1978). Therefore, the crux of this appeal is whether the municipalities of Camp Hill and Hampden entered into a mutual aid agreement. We find that the Commonwealth failed to prove the existence of such an agreement between Camp Hill and Hampden.

At the suppression hearing, the only evidence offered to prove the existence of a mutual aid agreement between the two municipalities involved was a copy of a document purported to be the mutual aid agreement. The specifics of this agreement are not important in this appeal; the fact which is most important is who in fact signed the agreement. At the end of this typewritten “agreement” follows a typewritten list of all the municipalities which are said to be part to the agreement, listing nine boroughs, including Camp Hill, and seven townships, including Hampden, the only signatories to this “agreement” are the mayor and secretary of Camp Hill. No representatives from any of the other municipalities, and most notably, Hampden, signed this “agreement.” This evidence certainly falls short of proving that a bona fide agreement existed between the two municipalities involved. It must be emphasized that we are not necessarily ruling that a mutual aid agreement can only be proven by introducing a written agreement signed by the municipalities involved. However, the Commonwealth in this case neither introduced a duplicate copy of this “agreement” signed by representatives of Hampden Township nor did the Commonwealth call such representatives to the stand to elicit oral testimony on this point. The evidence introduced by the Commonwealth, therefore, failed to prove anything more than the fact that Camp Hill demonstrated its willingness to provide mutual aid; the evidence does not prove that Hampden was a party to this agreement. Accordingly, the suppression court erred when it failed to rule appellant’s arrest illegal and to suppress the fruits of that arrest, to wit, appellant’s oral and written inculpatory statements. Therefore, appellant’s conviction must be reversed and remanded for a new trial.

Reversed and remanded for a new trial.

      . Appellant also argues that his arrest was made without probable cause. In view of our disposition of appellant’s first issue, we do not reach the merits of appellant’s “probable cause” issue.

      . At the time of appellant’s arrest, statutory law provided:
      “Any police officer in the employ of a county, city, borough, town or township may arrest, with or without a warrant, any felon beyond the territorial limits of the political subdivision employing such officer for a felony committed by the felon within the political sub-division employing the police officer if such officer continues in pursuit of the felon after commission of the felony.” The Act of August 6, 1963, P.L. 511, No. 267, § 1, 19 P.S. § 11 (1964).
      In Commonwealth v. Troutman, 223 Pa.Superior Ct. 509, 302 A.2d 430 (1973), this Court held that the above Act did not give local police the right to make arrests outside of their own municipalities unless the arrest was made after hot pursuit of a suspected felon.
      The above act was repealed effective June 27, 1978, but was substantially re-enacted, effective that same date by the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 8901 (Supp.1980).

      . In Commonwealth v. Fiume, 292 Pa.Superior Ct. 54, 436 A.2d 1001 (1981), this Court ruled that absent some outrageous police conduct, the proper remedy in cases of illegal arrest is a remand for a new trial and not discharge.