text:
    465 A.2d 1272
    Max A. HANKIN and Janet Hankin v. Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin R. Shanken and Pauline Shanken, Estate of Samuel Hankin and Harriet Hankin. Appeal of Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin R. Shanken and Pauline Shanken.
    Superior Court of Pennsylvania.
    Argued June 17, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Granted Aug. 22, 1984.
    See also 279 Pa.Super. 179, 420 A.2d 1090.

      Philip D. Weiss, Norristown, for appellants.
    Franklin Poul, Philadelphia, for Max Hankin, etc., appel-lees.

      Theodore R. Mann, Philadelphia, for Moe Hankin, et al, appellees.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   ROWLEY, Judge:

This action involves the liquidation of a family partnership, which was dissolved in 1977. This is the fourth time that the controversy has been before our court. See Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980); Hankin v. Hankin, 302 Pa.Super. 295, 448 A.2d 1049 (1981) ; Hankin v. Hankin, 298 Pa.Super. 559, 442 A.2d 362 (1982) . The facts of the case are set out in detail in Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980) and will not be repeated here.

The present appeal is from an order denying appellant’s petition for an extension of time to complete the liquidation and appointing a receiver to liquidate the remaining partnership assets. We note that on two previous occasions, the trial court refused to appoint a receiver. Both of those decisions were appealed to this court. We affirmed. Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980); Hankin v. Hankin, 298 Pa.Super. 559, 442 A.2d 362 (1982).

The decision whether to appoint a receiver is vested in the discretion of the trial court. Northhampton National Bank of Easton v. Piscanio, 475 Pa. 57, 379 A.2d 870 (1977). However, a receiver should only be appointed in an extreme case and under extraordinary circumstances. Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975). Because of the drastic effect a receiver will have on the business entity involved, the court will only impose the remedy where it is necessary to prevent the waste or dissipation of assets; for example, where there is fraud or mismanagement. Hankin v. Hankin, 279 Pa.Super. at 201, 420 A.2d at 1102.

In this case, there has been no finding of waste, dissipation of assets, fraud or mismanagement. Appellee’s main complaint seems to be that the liquidation is taking too long. At the time of dissolution, the partnership possessed assets, primarily real estate, valued at 77 million dollars. According to the findings of fact of the trial court, as of January 13, 1983, approximately $27,015,000.00 worth of property remained unsold. The court specifically found that pursuant to the Superior Court’s order in Hankin v. Hankin, 302 Pa.Super. 295, 448 A.2d 1049 (1981), appellants have continued their efforts to liquidate the balance of properties owned by the partnership. In fact, the record indicates that since the date of the order, $20,327,000.00 worth of property has been sold. The mere fact that appellants have failed to wind up the partnership affairs and liquidate all assets at this time is not sufficient to establish that a receiver is necessary. Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975). Since there is no evidence indicating that assets are being wasted or dissipated, the court committed an abuse of discretion in appointing a receiver. Therefore, the order denying appellants an extension of time and appointing a receiver will be reversed.

We understand appellees’ concern that appellants’ desire to purchase certain properties themselves may conflict with their obligation to seek out buyers willing to pay the highest prices. However, court supervision of the liquidation process will protect against that danger.

Appellants also challenge the order of the trial court denying their petition to sell certain properties in Willow Grove, Pennsylvania, to two of appellants, Moe and Sabina Hankin, for the sum of $15,000,000.00. The court denied the petition on the ground that in prior proceedings, Moe Hankin had stated that the property was worth $24,-000,000.00. The court therefore concluded that the property could be sold at a price higher than the $15,000,000.00 offered by appellants. (

In exercising its broad supervisory powers over the liquidation of a partnership, the court has discretion to determine the terms and method of the sale of assets. See Hankin v. Hankin, 279 Pa.Super. at 213, 420 A.2d at 1108. We find no abuse of discretion in the court’s denial of the above-mentioned sale. Therefore, that order will be affirmed.

Appellants also argue that the court erred in changing its Finding of Fact 6, unsold properties, by deleting “1300 Easton Road” from the list of partnership properties. The property has been the home of appellees for thirty-five years. In January of 1981, appellants filed a petition claiming that the 1959 deed to appellees was invalid because one of appellants, Moe Hankin, had forged his wife’s signature. This claim was never pursued. Prior to making findings of fact in its adjudication, the trial court asked Moe Hankin to write a letter setting forth the value of unsold partnership properties. Moe Hankin included appellees’ home on that list. Rather than formally filing an exception, appellees wrote a letter to the court pointing out the mistake. In its final decree, the court amended the list of unsold property to delete said residence.

Appellant claims that the court had no power to correct the finding in the absence of a formal exception. This argument is without merit. Clearly, the proper procedure for appellees to follow would have been to file an exception. However, the trial court may, indeed should, reverse or reject unsupported or illogical findings. Billinger Estate, 451 Pa. 77, 301 A.2d 795 (1973). There is nothing in the record to support inclusion of 1300 Easton Road as partnership property. The recorded deed to the property, which is a matter of public record, shows that it is owned by appel-lees, Max and Janet Hankin. It was therefore entirely proper for the trial court to correct this error when it was brought to the court’s attention.

Appellants also argue that the trial court should act on various petitions which have been filed with it and should direct the remaining partnership property sold by auction. These applications are not, however, matters to which we can provide consideration since the matters are not before us in this appeal proceeding. Rather, any request for disposition of the outstanding applications that have been made to the trial court should be addressed to that court. Since the trial court has become so familiar with this sad tale of family discord by reason of the protracted course of litigation the parties have pursued, there is no apparent reason why the parties may not expect immediate disposition by the trial court of the applications that have been made to it. It is our expectation, of course, that the trial court will also rule in prompt- fashion upon all applications that will be brought to it until the long overdue time that the litigation between and among these parties is finally and completely concluded.

Orders affirmed in part and reversed in part. Case remanded for further proceedings to- be conducted in a prompt and expeditious fashion and in a manner not inconsistent with this opinion.

Jurisdiction relinquished.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    465 A.2d 1275
    COMMONWEALTH of Pennsylvania v. James FERRER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1981.
    Filed Sept. 23, 1983.

      Burton A. Rose, Philadelphia, for appellant.
    Steven Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and McEWEN, JJ.
   McEWEN, Judge:

We here consider the consolidated appeals from the denial of two distinct applications for separate writs of mandamus, both of which were filed to compel the Philadelphia County prison authorities to recompute the manner in which appellant was to serve the balance of two separate sentences as a result of a parole violation of each sentence. Appellant argues essentially that since the sentencing judge in each of the two separate cases failed to specify the manner in which the sentence for violation of parole should be served, those sentences should be deemed to be concurrent—rather than consecutive as recorded by the prison authorities—with a third sentence appellant was serving at the time that the parole was revoked in each of the two cases which are the subject of this appeal. We affirm.

Appellant had pleaded guilty to theft by unlawful taking as of Information No. 337, December Session, 1973, and was sentenced on January 21, 1974, by the learned Judge William Porter to a term of five years probation. Appellant was subsequently determined to have violated the terms of the sentence of probation and was sentenced by Judge Porter on November 18, 1975, to serve a term of imprisonment of from six months to twenty-three months in the Philadelphia County prison, to run consecutively to any sentence he was then serving. Appellant was paroled after serving the six month minimum term of the sentence. However, as a result of subsequent criminal conduct, Judge Porter on June 8, 1978, determined that appellant had violated the parole upon the six month to twenty-three month sentence imposed upon Information No. 337, December Session, 1973, and ordered appellant to serve the unserved seventeen month balance of that sentence. Judge Porter did not state whether that seventeen month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was already serving. Appellant subsequently applied to Judge Porter for a writ of mandamus to compel the prison authorities to record the seventeen month balance as running concurrently with the completely distinct sentence that appellant was serving at the time that Judge Porter directed him to serve the seventeen month balance. Judge Porter denied the application, as a result of which appellant undertook an appeal to this court as of No. 2829, Philadelphia, 1980.

In a totally distinct and unrelated case, the distinguished Judge Joseph T. Murphy, after a trial without a jury, found appellant guilty of aggravated assault, possession of instruments of crime, tampering with a witness and terroristic threats as of Informations Nos. 494-99, September Term, 1975. Judge Murphy sentenced appellant to a term of imprisonment of from eleven and one-half months to twenty-three months and to a further two year term of probation to commence upon his release from prison. Appellant was paroled at the completion of the minimum term of eleven and one-half months but, on June 15, 1978, one week after Judge Porter had revoked his parole and directed that he serve the seventeen month balance of the sentence imposed as of Information No. 337, December Session, 1973, Judge Murphy revoked his parole on the sentence imposed upon Information Nos. 494-99, September Term, 1975, and sentenced petitioner to serve the eleven and one-half month balance of that sentence. Judge Murphy did not state whether that eleven and one-half month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was then serving or consecutive with the seventeen month balance of the sentence that had been imposed by Judge Porter. Appellant subsequently applied to Judge Murphy for a writ of mandamus to compel the prison authorities to record the eleven and one-half month balance as running concurrently with the completely distinct sentence that appellant was serving at the time that Judge Murphy directed him to serve the eleven and one-half month balance. Judge Murphy, as had Judge Porter, denied the application, as a result of which appellant has appealed to this court as of No. 2967, Philadelphia, 1980.

Appellant asserts that:

Each judge failed to state that the balance of the months remaining upon the sentence was to be served consecutive with the sentence of imprisonment appellant was then undergoing.
That Judge Murphy failed to state that the balance of the months remaining upon the sentence was to be served consecutive with the balance of the months to be completed upon the sentence of Judge Porter.
That, therefore, the prison authorities should record the sentences of Judge Porter and Judge Murphy as running concurrently with one another and as running concurrently with the sentence appellant was already serving. That each Common Pleas Court Judge erred in refusing to issue a writ of mandamus to the prison authorities to so record the sentence.

Since appellant correctly states that each judge did not express the specific direction that the balance of the sentence was to be served in a consecutive fashion, the question for our determination is whether there is authority for the prison officials to compute the sentences in consecutive fashion. We are of a mind that it is already well settled that a parolee from a county prison, upon being convicted of a crime committed while on parole and sentenced thereon to the same institution from which he was paroled, must first complete his unfinished term, once it is determined he was in violation of his parole, before he commences service of the sentence for the latter offense. Commonwealth ex rel. DiBonbi v. Baldi, 339 Pa. 96, 15 A.2d 352 (1940) (affirmed per curiam on the basis of Commonwealth v. Ripka, 37 D & C 315 (1940)). Accord, Commonwealth ex rel. Sweeney v. Keenan, 168 Pa.Super. 137, 78 A.2d 33 (1951); Commonwealth ex rel. Little v. Keenan, 168 Pa.Super. 125, 78 A.2d 27 (1951). The Ripka, supra, opinion, which the Supreme Court would seem to have made its own, proceeded through a thoughtful analysis before concluding that parolees, whatever the length of their sentence or the institution where it is to be served, when convicted of a crime committed while on parole, must serve in consecutive fashion the sentence for the new crime as well as the unexpired balance of the parole sentence. The opinion, after noting that parolees from state penitentiaries must serve their sentences in such fashion, see Commonwealth ex rel. Kent v. Smith, 323 Pa. 89, 186 A. 812 (1936); Commonwealth ex rel. Meinzer v. Smith, 118 Pa.Super. 250, 180 A. 179 (1935), states:

These cases settle the law of Pennsylvania on this subject so far as it applies to sentences to the penitentiary, and we think that in this respect there is no difference between sentences to the penitentiary on the one hand, and to the county prison on the other. It is true that parolees from State penitentiaries and county institutions are regulated by different acts, the latter being governed by the Act of June 19, 1911, P.L. 1059, and that they do not contain the same provisions. They were passed at the same session of the legislature, however, and were approved by the Governor on the same day, and together constitute our system of parole legislation. By them parole was introduced as a part of our system of penology. The first of these acts, which regulates parolees from penitentiaries, is rather elaborate in its provisions. The second lays down no rules whatever for the regulation of parolees from the county prison. It is but one paragraph in length, and, except as subsequently amended by the Act of May 11, 1923, P.L. 204, to prescribe regulations for the hearing of petitions for parole, it merely confers upon the quarter sessions courts the power ‘after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse’ of its district, and ‘to recommit to jail, workhouse, or house of correction on cause shown by such probation officer that such convict has violated his or her parole, and to reparole in the same manner and by the same procedure as in the case of the original parole if, in the judgment of said court, there is a reasonable probability that the convict will be benefited by again according liberty to such convict, and also to again recommit for violation of such parole.’
There are no provisions here, such as in the act relating to penitentiaries, prescribing what shall be done upon a violation of parole by a parolee, except that he may be recommitted and reparoled in the discretion of the court. We think, therefore, that the only reasonable conclusion to be reached from this complete absence of express legislative declaration upon the subject in the second act is that the legislature considered that, by the previous act relating to the penitentiary, it had given to the word ‘parole’ a connotation sufficiently fixed and definite, at least as to basic principles, to render its further definition unnecessary when used in subsequent legislative enactments. In this respect we think that the acts should be interpreted similarly in order that the administration of parole may be uniform, and shall differ only in those particulars in which a legislative intent to distinguish between parolees from penitentiaries and from local county institutions is apparent or. reasonably and necessarily to be inferred. This being so, we find no statutory authority for holding the general consequences of a parole violation to be different in the case of prisoners sentenced to the county prison from those prescribed for penitentiary prisoners, except that, in the former case the power is given to the courts to reparole after commitment for violation of parole, whereas this power has not been conferred upon the Board of Pardons, the paroling authority in the case of penitentiary prisoners.
sj< % sH s)c sfc
The theory of parole is based upon the benefit to be derived by society and the prisoner from remitting the immediate service of the balance of his sentence on the condition that, during his parole period, he does not again violate the law. He is still subject to the sentence, but the obligation to serve the balance of it is merely suspended to rearise upon his misbehavior; and the value of the parole as a steadying and reformative measure would be progressively weakened, if the parolee’s liability to pay the forfeit implied in the condition were permitted to be diminished by mere lapse of time.

Commonwealth v. Ripka, supra at 318-20.

This landmark decision was addressing the statutes in effect at the time of the holding, namely, two separate Acts that became law on the same day:

Act of June 19, 1911, P.L. 1055 § 10, as amended. Section 10 of that Act (61 P.S. § 305) specifically directed that whenever a parolee was convicted of a crime committed while on parole, the unexpired term and the term for the new offense were to be served in a consecutive manner.
Act of June 19, 1911, P.L. 1059 § 1, as amended. Section 1 of that Act (61 P.S.' § 314) authorizes the county courts to release on parole any convict confined in a county jail and to recommit the parolee to jail if the court determines the terms of the parole have been violated.

While the Act of 1941, August 6, P.L. 861, § 17, as amended, (61 P.S. § 331.17) subsequently conferred upon the Pennsylvania Board of Parole exclusive jurisdiction of persons who had received a sentence of two years or more and thereby removed from the county court any jurisdiction over the parole of such prisoners, and while the 1941 Act and its subsequent amendments (61 P.S. § 331.21a) reiterated that the unexpired sentence of a convicted parolee must be served in consecutive fashion with the new sentence, the analysis, rationale and holding of Ripka remained unaffected. Therefore, while we agree with appellant that he is not under the jurisdiction of the Pennsylvania Board of Parole and that, therefore, he is not subject to the specific requirement imposed by 61 P.S. § 331.21a that his sentence be served in a consecutive fashion, the Ripka holding establishes the applicability of the consecutive sentence requirements of 61 P.S. § 305 to a parolee who is within the jurisdiction of the county court.

Appellant argues that Section 305 was repealed by the Act of April 28, 1978, P.L. 202, No. 53, but apparently has overlooked the fact that the effective date of repealer was June 27, 1978, a date subsequent to both orders that appellant serve the balance of the expired sentence, one of which was entered on June 8, 1978, and the other on June 17, 1978. It should also be noted that the legislature expressly provided that Section 305, as well as other related statutes, pursuant to 42 Pa.C.S.A. § 20002(a)[955], “shall remain in effect as to existing indeterminate sentences until the expiration thereof.” Therefore, it is apparent that the unexpired terms of the original sentences upon which petitioner was paroled must necessarily be served in a consecutive manner with the sentences for the offense or offenses out of which the two parole violations arose.

Nor are we persuaded that the provision of Pennsylvania Rule of Criminal Procedure 1406(a) is applicable. It would seem to be beyond argument that Rule 1406 is applicable only to the initial imposition of sentence and not to an order of court that directs a parolee to serve an unexpired term. Had there been apy intent to prescribe such a regulation, such revision would have been a part of Rule 1409, the specific Rule relating to “Violation of Probation or Parole: Hearing and Disposition”. Pa.R.Crim.P., Rule 1409, 42 Pa.C.S.A.

Therefore, we conclude that Judge Porter properly denied the petition for a writ of mandamus directing that the prison officials compute the unexpired balance of the sentence he had imposed as a sentence concurrent with the sentence he was already serving. Accordingly, Judge Murphy properly concluded that the unexpired balance of the sentence he had imposed was not to be concurrent with the sentence he was already serving, but there remains the question of whether the unexpired balance of the sentence imposed by Judge Murphy should be served concurrently or consecutively with the unexpired balance of the sentence imposed by Judge Porter. We are unable, however, to consider this question since the sole issue presented to and ruled upon by both Common Pleas Court Judges in the two separate applications for a writ of mandamus was the question of whether the unexpired terms that were required to be served by reason of the parole violation were to be served consecutively with the sentence already being served. City of Pittsburgh v. Pennsylvania Department of Transportation, 490 Pa. 264, 270 n. 7, 416 A-2d 461, 464 n. 7 (1980); Staiano v. Johns Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982); Rizzo v. Schmanek, 63 Pa.Cwlth. 547, 439 A.2d 1296 (1981).

The order of Judge William Porter which is the subject of Appeal No. 2829 Philadelphia, 1980, is affirmed.

The order of Judge Joseph T. Murphy, which the subject of Appeal No. 2967 Philadelphia, 1980, is affirmed.

      . Although not complete, the record in this case does reveal that at the time of the imposition of this sentence, petitioner had been sentenced five days earlier on November 13, 1975, upon Information Nos. 494-98, September Term, 1975, involving completely distinct offenses, to a term of eleven and one-half to twenty-three months as well as to an additional term of two years probation to commence upon his release from prison.

      . The record does not reflect the precise date on which petitioner was paroled.

      . The record further does not reveal what sentence petitioner was serving at the time he was sentenced to serve the remainder of the original sentence on this conviction.

      . As earlier noted, the record does not reflect what sentence petitioner was serving at the time parole was revoked on these latter charges.

      . § 305. Conviction during parole; service of unexpired term
      If any convict released on parole, as provided for in this act, shall, during the period of his or her parole, or while delinquent on said parole, commit any crime punishable by imprisonment for which he or she is at any time thereafter convicted in any court of record and sentenced to any place of confinement other than the penitentiary from which he or she was released on parole, such convict shall, in addition to the penalty imposed for such crime committed during the said period, and after the expiration of the same, be compelled, by detainer and remand as for an escape, to serve in the penitentiary from which said convict had been released on parole, or in any other institution to which he or she may be legally transferred, the remainder of the term (without commutation) which said convict would have been compelled to serve but for the commutation authorizing said parole, and if not in conflict with the terms and conditions of the same as granted by the Governor; but, if sentenced to the penitentiary from which said convict was released on parole, then the service of the remainder of the said term originally imposed shall precede the commencement of the term imposed for said crime. If no new sentence is imposed for such crime or crimes, punishable by imprisonment, committed during period of parole, or while delinquent on parole, for which he or she has been convicted in any court of record, either by plea or trial, said convict shall be compelled, by detainer and remand as for an escape, to serve in the penitentiary from which said convict had been released on parole, or any other institution to which he or she may be legally transferred, the remainder of the term (without commutation) which said convict would have been compelled to serve but for the commutation authorizing the parole, and if not in conflict with the terms and conditions of the same as granted by the Governor. 1911, June 19, P.L. 1055, § 10; 1915, June 3, P.L. 788, § 1; 1931, June 22, P.L. 862, § 1.

      . § 314. Parole from county jails, houses of correction, or workhouses; procedure; violation of parole; reparole
      The courts of quarter sessions and the courts of oyer and terminer of the several judicial districts of the Commonwealth, and other courts of record having jurisdiction, are authorized, after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse of their respective district. No convict shall be paroled, under the provisions of this act, except upon petition verified by the oath of the person convicted or by some one in his or her behalf, and presented and filed in the court in which such person was convicted. Upon the presentation of any such petition, the court shall fix a day for hearing. A copy of said petition shall also be served upon the district attorney and upon the prosecutor in the case, if he is resident within the county, at least ten days before the day fixed for said hearing. Proof of service upon the district attorney and the prosecutor shall be produced at the hearing. After such hearing, the court shall make such order as to it may seem just and proper. In case the court shall parole such convict, it shall place him or her in charge of and under the supervision of a designated probation officer. Any of said courts shall have power to recommit to jail, workhouse, or house of correction on cause shown by such probation officer that such convict has violated his or her parole, and to reparole in the same manner and by the same procedure as in the case of the original parole if, in the judgment of said court, there is a reasonable probability that the convict will be benefited by again according liberty to such convict, and also to again recommit for violation of such parole. This power of parole shall extend for a period not to exceed the maximum sentence provided by law for the offense of which the convict was convipted, regardless of the sentence first imposed upon the prisoner: Provided, however, That any of said courts may release on parole, upon petition to any of said courts, any person who has been committed to any jail, workhouse, or house of correction by any magistrate, alderman, or justice of the peace. Said courts shall have the same power to recommit such persons paroled as herein set forth. 1911, June 19, P.L. 1059, § 1; 1921, May 5, P.L. 379, § 1; 1923, May 11, P.L. 204, § 1.
      Repealed in Part
      This section is repealed in so far as it relates to persons over whom exclusive jurisdiction to parole is vested upon the Board of Parole by act 1941, Aug. 6, P.L. 861, § 35.

      . Pa.R.Crim.P., Rule 1406, 42 Pa.C.S.A., entitled Imposition of Sentence: Computation and Service, reads in part:
      (a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise.


text:
    465 A.2d 1280
    Kim EAGLESON v. Carmen MALONE and Robert Peart. Appeal of Carmen MALONE.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed Sept. 23, 1983.

      William H. Kinkead, Norristown, for appellant.
    Albert S. Fein, Philadelphia, for Eagleson, appellee.
    Frederick T. Lachat, Philadelphia, for Peart, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

Appellant claims in these consolidated appeals that the trial judge erred in connection with each of two orders with regard to the liability of parties to this personal injury action. Appellee Eagleson was a passenger upon a motorcycle operated by appellee Robert Peart when it collided with an automobile operated by appellant Carmen Malone. Appellee Eagleson initiated a suit in trespass against appellant Malone to effect a recovery for the serious injuries she suffered as a result of the collision. Appellant Malone joined appellee Peart as an additional defendant. The trial was conducted before the distinguished Judge Samuel W. Salus and a jury and, at the conclusion of the testimony, the trial judge granted the motion for a non-suit that had been filed by appellee Peart, the additional defendant. As a result, the sole issue for the determination of the jury was the negligence of appellant Malone, the named defendant in the trespass action. The jury found in favor of appellant Malone. Appellee Eagleson filed a motion for new trial and a motion for judgment n.o.v., while appellant Malone filed a motion to remove the compulsory non-suit that had been entered in favor of appellee Peart as additional defendant. After argument before the court en banc, the court entered an Order that (1) denied the motion of appellant Malone to remove the non-suit in favor of appellee Peart, (2) granted the motion of appellee Eagleson, the plaintiff, that judgment n.o.v. be entered in her favor and (3) directed that a trial be conducted solely upon the issue of the damages to be awarded appellee Eagleson. We reverse and remand for a new trial upon all of the issues.

Appellant Malone was operating his automobile in a northerly direction on a two lane highway at approximately 5:00 p.m. on a clear, sunny, summer afternoon when he approached an intersection into which he intended to make a lefthand turn so as to travel in a westerly direction. Appel-lee Peart was operating his motorcycle in a southerly direction upon the same roadway and appellee Eagleson was a passenger upon that vehicle. The roadway upon which both vehicles were traveling widens at the intersection so that there are two through lanes and a left turn lane in each direction. The testimony of the investigating police officer disclosed that the two through lanes are controlled by overhead signals with the sequence of amber, red and green, while the lefthand turn lanes are controlled by a separate traffic standard erected upon a medial barrier, bearing a sign indicating that it is a left turn signal and utilizing a sequence of amber, red and green arrow. The officer testified that the overhead signals for the through traffic in either direction are red when the lefthand turn signal is green or amber and the lefthand turn signal is red when the overhead signals for the through traffic are green or amber, and further stated that he determined, as part of his accident investigation, that the traffic signals were all working in proper sequence. Appellant Malone testified that in preparation for a lefthand turn, he moved into the lefthand turn lane and was traveling at approximately thirty miles per hour and was roughly forty feet from the traffic standard when he noticed the green signal for left-hand turn traffic. He related that the light never changed and he never stopped from that time until the collision occurred, that he never saw the motorcycle at any time prior to the impact and that, while he had looked in a northerly direction for southbound through traffic when he was some forty feet from the intersection, he did not thereafter look for such traffic since he had the green left turn arrow.

Two disinterested eyewitnesses, one the driver and the other a passenger in the second car behind appellant Malone in the lefthand turn lane, both testified that the vehicle of appellant and their vehicle had been waiting for the green turn signal when the vehicle of appellant proceeded into the southbound lane of the highway without a green lefthand turn signal.

Appellee Peart, the motorcycle operator testified that he injured his head in the accident and that, while he remembered that he was shopping at a mall sometime prior to the accident, he had no recollection of leaving the mall or of any of the events of the journey between the mall and the scene of the accident. Appellee Eagleson, the opinion of the trial judge notes, was unable, due to traumatic amnesia, to offer testimony concerning the occurrence itself.

The testimony of the accident investigation officer was that the impact was in the southbound through lane in the middle of the intersection and that the front of the cycle collided with the right front fender of the automobile. Appellant in his brief asserts:

The trial court erred in granting Peart’s motion for compulsory non-suit because there was evidence from which the jury could have found him negligent.
The trial court erred in granting plaintiff Eagleson’s motion for judgment n.o.v.

The learned trial judge declares in his opinion that the verdict against the plaintiff, the injured motorcycle passenger, “was the most outrageous miscarriage of justice the court has yet seen in his career as lawyer and judge” and proceeds to express his view as to the reasons for the verdict:

The reason for this outrageous and unjust verdict unsupported in the evidence was because of some indescribable prejudice against motorcycles or against the plaintiff who was an Oriental-American living with a Caucasian and her suing of an old and incompetent driver who was totally negligent and whose ethnicity conformed to a great majority of those on the jury. In presenting his testimony, the defendant could hardly walk and was a prime example of those having licenses who should be reviewed by the State as to capability to drive. Defendant’s driving incompetence was memoralized in his testimony and amounted to negligence per se.

If our trial judges are to be the guardians who ensure that our courts provide for equal justice to all, a trial judge must be sensitive to prejudice and alert to intolerance. Since the chambers of those who conduct appellate review are so distant and insulated from the scene of such a display and since the torment of bias, like a raw cutting wind, can neither be seen nor spread upon the record but, nonetheless, can be keenly felt, we may not challenge, without abundant and overwhelming reason, such a conclusion by the trial court. The trial judge acted properly in rejecting so jaundiced a verdict.

The court here quite properly overturned the verdict of the jury in favor of appellant Malone, aside from any influence that prejudice might have effected, since the verdict was completely contrary to the weight of the evidence. First, the testimony of appellant Malone was severely contradicted by the testimony of the two disinterested eyewitnesses. Second, as the trial judge noted in his opinion, the testimony of appellant Malone himself revealed him to be negligent since he did not check the left turn traffic signal at any time subsequent to the moment that he was forty feet from the intersection and since he did not look in a northerly direction for southbound through traffic at any time after the moment he was some forty feet from the intersection. See Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263 (1982).

As a result of all of these factors, we conclude that the trial court quite properly overturned the verdict of the jury in favor of appellant Malone. However, we cannot agree that judgment n.o.v. should have been entered in favor of appellee Eagleson. Rather, since we are of the mind that it was error to grant the motion for a compulsory non-suit by appellee Peart as additional defendant, a new trial must be conducted so as to enable the jury to weigh in what manner and to what extent, if any, appellee Peart may have been responsible for the collision.

As compelling as may be the testimony of the two disinterested eyewitnesses toward the conclusion that appellant Malone was the sole and only cause of this accident, a jury must be permitted to consider:

The testimony of appellant Malone that the left turn signal was green when he was forty feet from the intersection and that it remained green until the time of the collision.
The argument of appellant Malone that the operator of the motorcycle should have had such control of his vehicle as would have enabled him to avoid the collision by either bringing the motorcycle to a halt or by swerving from the path of the automobile of appellant Malone.

Our distinguished colleague, Judge James R. Cavanaugh, reiterated that a non-suit may be entered only in quite limited narrow situations:

[W]e note that a nonsuit is an extraordinary intervention into the jury process and as such is properly entered only in a clear case. Hader v. Coplay Cement Manufacturing Company, 410 Pa. 139, 189 A.2d 271 (1963); Frangis v. Duquesne Light Company, 232 Pa.Super. 420, 335 A.2d 796 (1975). A nonsuit may not be granted unless the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978).

Mazza v. Mattiace, 284 Pa.Super. 273, 277, 425 A.2d 809, 811-12 (1981).

As strained as might be the possibility that an unbiased jury would find appellant Malone was fault free in the face of the testimony of the two disinterested eyewitnesses, it would not be unreasonable for a jury to conclude the operator of the motorcycle was partially responsible for the occurrence. Therefore, we find that the trial judge should have denied the motion of the motorcycle operator for a compulsory non-suit.

The Order refusing the motion to remove the non-suit is reversed.

The Order granting judgment n.o.v. in favor of appellee Eagleson is reversed.

The Order granting a new trial is affirmed. The trial is to be a de novo proceeding upon all issues including liability-

Case remanded. Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.


author: CIRILLO, Judge:

text:
    465 A.2d 1284
    COMMONWEALTH of Pennsylvania v. James MITCHELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed Sept. 23, 1983.

      James Lee Goldsmith, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Presently before this Court is an appeal from an Order of the Court of Common Pleas of Dauphin County dated March 5, 1982, denying appellant the relief prayed for in his petition for relief under the Post Conviction Hearing Act (PCHA).

The instant case began when Joseph Williams stopped on the road to aid the appellant whose automobile had a flat tire. Williams agreed to give the appellant a ride to the nearest service station. After entering Williams’ car, the appellant pulled out a pistol, pointed it at Williams, and proceeded to take Williams’ money and his car.

The appellant was initially charged with the offenses of robbery, kidnapping, theft by unlawful taking, and theft by receiving. An agreement was reached with the District Attorney whereby in consideration of a plea of guilty, the kidnapping charge would be reduced to unlawful restraint and the charge of theft by receiving would be dismissed. Pursuant to this agreement, on April 1, 1981, the appellant entered pleas of guilty and on June 3, 1981, was sentenced to ten to twenty years on the robbery charge, five to ten years on the theft charge, and three and one-half to seven years on the unlawful restraint charge. All sentences were to run concurrently.

On June 16, 1981, the appellant, through his counsel, filed a Petition for Modification of Sentence and a Petition to Withdraw Guilty Plea. On June 17, 1981, the court denied the Petition for Modification of Sentence. The court further directed that a hearing on the Motion to Withdraw Guilty Plea be held on July 15, 1981. On June 22, 1981, the Motion to Withdraw Guilty Plea was withdrawn and the court, on the same date, cancelled the hearing.

On or about October 7, 1981, the appellant filed a pro se PCHA petition. Counsel was appointed and on February 3, 1982, an amended petition was filed. After an evidentiary hearing, the appellant’s PCHA petition was dismissed and the relief requested denied. This appeal followed.

Appellant contends that the PCHA court erred in refusing to set aside his guilty plea and award a new trial or to lessen the severity of his sentence. He argues first that his guilty plea was unlawfully induced. because he relied on his trial counsel’s alleged intimations that he would receive a sentence of no more than seven years, and that the Commonwealth in the plea bargain had agreed to seek the imposition of such sentence. After a thorough review of the record of the PCHA hearing, it is evident that this issue is solely one of credibility between the testimony of trial counsel and that of the appellant. The hearing court, as trier of fact, resolved the credibility issue in favor of the guilty plea counsel. We will not disturb findings of the PCHA court on appeal when they are supported by the record. Commonwealth v. Wallace, 495 Pa. 295, 298, 433 A.2d 856, 858 (1981); Commonwealth v. Abbruzzese, 293 Pa.Super. 246, 250, 438 A.2d 977, 979 (1981). The following excepted portions of the PCHA hearing record indicate that trial counsel testified that he never guaranteed appellant a lesser sentence or indicated that the Commonwealth had promised to seek a sentence of no more than seven years.

PCHA COUNSEL FOR THE COMMONWEALTH
Did you communicate to James or the defendant I should say the discussions you had at that time with the district attorney?
TRIAL COUNSEL FOR APPELLANT
Yes, I did. And I would add at this point that in the course of those discussions, as in the case of most defendants, Mr. Mitchell was of course very concerned with the sentence that he would receive. And there was, I do recall in the course of those discussions, mention of various terms of years in so far as—in so far as the sentence he could receive is concerned. I do remember the mention of a seven year term. I also remember a mention of a ten year term. I also remember a mention of a five year term.
Essentially, what I recall doing is giving James, based on my experience and estimation of the possible sentence that he would receive pursuant to his request that I do so, but I also did add the caveat that that was my estimation of the sentence that he would receive and that there was no plea bargain in the case to a specific term of years and that my estimation again was just that, that he was asking me essentially to guess a Judge. That was a very risky business. But, based on his request, I did indicate to him that I thought under the circumstances of the case, a very substantial sentence certainly involving State Penitentiary time was going to be forthcoming.
But, at no time did I guarantee to him or promise him or represent to him that the district attorney’s office had guaranteed him or promised him a sentence of a maximum of seven years.

PCHA Hearing Transcript 3/3/82, at 30-31. Therefore, because the record supports the PCHA court’s determination that trial counsel did not persuade appellant to plead guilty by promising a lesser sentence or by intimating that the Commonwealth, as part of the plea bargain, guaranteed a lesser sentence, we will not disturb that determination on appeal.

Additionally, we note that a criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976). In the instant case, a colloquy was conducted in which the possible severity of the sentence which the defendant could receive was explained. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the promises of counsel. Appellant hoped and possibly expected to receive concurrent sentences amounting to no more than seven years, but, as has often been stated, disappointed expectations alone do not vitiate guilty pleas. Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. Brown, supra.

Appellant also contends that his guilty pleas were unlawfully induced because he was not apprised of the possible range of sentences which could be imposed. A careful review of the transcript of appellant’s guilty pleas reveals that he was apprised of the possible range of sentences which he could receive. We therefore find this argument to be clearly without merit.

Appellant next argues that his guilty plea counsel was ineffective for withdrawing appellant’s Petition to Withdraw Guilty Plea without the advice or consent of appellant. Once again, we are faced with an issue of credibility; the claim of the appellant and the testimony of trial counsel stand in direct contradiction. The following excepted portion of the PCHA hearing transcript shows that trial counsel testified that he withdrew the Motion at the specific direction of the appellant.

PCHA COUNSEL FOR THE COMMONWEALTH
Did you discuss the possibility of withdrawing the petition that you filed seeking to withdraw the guilty plea?
TRIAL COUNSEL FOR THE APPELLANT
Yes. Again one of the purposes of going over was to advise him that, as I said, I felt that the motion to withdraw his guilty plea was—had no chance' of success or little chance of success, and that rather than go through, follow through with what I considered to be a futile motion, I felt that it was in his best interest to simply file a motion to withdraw the motion to withdraw the guilty plea.
PCHA COUNSEL FOR THE COMMONWEALTH
Did he make any determination either way in regard to pursuing or not pursuing that motion?
TRIAL COUNSEL FOR THE APPELLANT
Yes. Before I left, he made it clear to me that he was willing to go along with my filing of such a motion to withdraw the motion to withdraw the guilty plea.
Accordingly, I left Camp Hill. I returned to the public defender’s office. I directed my secretary to prepare an appropriate motion which was filed perhaps one to two days later.

PCHA Hearing Transcript 3/3/82, at 35-36. The PCHA court, as trier of fact, resolved the credibility issue against the appellant, and, in view of the ample evidence in the record supporting that determination, it must be sustained. Commonwealth v. Riddick, 492 Pa. 430, 424 A.2d 1266 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977).

Furthermore, it should be noted that trial counsel’s suggestion to the appellant that the Motion to Withdraw Guilty Plea be withdrawn was predicated on “some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). At the PCHA hearing, trial counsel testified that he suggested the withdrawal of the Motion because the guilty plea colloquy and appellant’s intelligence and frame of mind at the time of the guilty plea left nothing which he believed would justify the court’s allowance of the withdrawal of the guilty plea. Rather, a Motion to Modify the Sentence was the proper method to proceed given appellant’s concern regarding the excessiveness of his sentence. Counsel cannot be deemed ineffective for failing to advance a frivolous motion. Commonwealth v. Davis, 279 Pa.Super. 218, 420 A.2d 1111 (1980); Commonwealth v. Rainey, 282 Pa.Super. 15, 422 A.2d 652 (1980).

Appellant’s third contention is that the PCHA court’s dismissal of appellant’s petition was against the clear weight of the evidence. Appellant claims that he adequately supported the assertions discussed above. It is well established that for relief to be granted on the ground that a determination was against the weight of the evidence, it must appear from the record that the determination was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail. See Lupi v. Keenan, 396 Pa. 6, 8, 151 A.2d 447, 449 (1959); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). We have thoroughly reviewed the PCHA record and find the conclusion reached by the PCHA court was not so contrary to the evidence as to shock one’s sense of justice. We accordingly deny appellant relief on this claim. See Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980).

Finally, appellant raises an issue regarding the legality of the sentence which the court imposed for the theft offense. He argues that this Court should vacate the sentence for theft because the theft offense should have merged with the robbery offense for sentencing purposes.

We note first that this issue is properly before this Court even though it was not raised at any stage in the proceedings below. The illegality of a sentence cannot be waived, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982), and appellant’s failure to raise this issue previously does not preclude the Superior Court’s present consideration of it. Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189 (1981); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977).

Turning now to the merits of appellant’s claim that the theft offense merged with the robbery offense for sentencing purposes, the general rule is, when one crime necessarily involves another, the offenses merge for sentencing purposes and only one punishment may be imposed. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979). By definition, robbery is committed “in the course of committing a theft.” Therefore, robbery necessarily involves theft and the offenses merge for sentencing purposes. Commonwealth v. Yancey, 301 Pa.Super. 427, 447 A.2d 1041 (1982); Commonwealth v. Stevens, 237 Pa.Super. 457, 352 A.2d 509 (1975). Appellant’s sentences on both crimes resulted in double punishment and are unlawful. However, we need not remand for resentencing because we are authorized to vacate the sentence imposed on the theft offense. Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). Accordingly, we vacate the judgment of sentence for theft by unlawful taking and affirm the judgments of sentence imposed on the robbery and unlawful restraint offenses.

ORDER AFFIRMED AND JUDGMENT OF SENTENCE AFFIRMED IN PART AND VACATED IN PART.

      . Act of January 26, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed. Act of April 28, 1978, P.L. 202, No. 53, § 2(2) (1397) effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 1 delaying repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41 § 1 delaying repeal until June 26, 1982, repealed by Act of May 13, 1982, P.L. 587, No. 1982-122, § 3, replaced by 42 Pa.C.S. § 9541 et seq.

      . Act of December 6, 1972, P.L. 1483, No. 334, § 1, 18 Pa.C.S.A. § 3701, as amended by Act of June 24, 1976, P.L. 425, No. 102, § 1, 18 Pa.C.S.A. § 3701.

      . Act of December 6, 1972, P.L. 1483, No. 334, § 1, 18 Pa.C.S.A. § 2901.

      . Id., § 3921.

      . Id., § 3925.

      . Act of December 6, 1972, P.L. 1483, No. 334, § 1, 18 C.P.S.A. § 2902, as amended by Act of December 30, 1974, P.L. 1120, No. 361 § 2, 18 Pa.C.S.A. § 2902.

      . The pertinent statute provides:
      § 3701 Robbery
      (a) Offense defined.—
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits or threatens immediately to commit any felony of the first or second degree;
      (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or

        (v) physically takes or removes property from the person of another by force however slight.
      (2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.
      (b) Grading.—Robbery under subsection (a)(l)(iv) is a felony of the second degree; robbery under subsection (a)(l)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.

      . In addition, appellant contends that this Court should vacate or modify the sentence for theft because the term of sentence imposed is in excess of the statutory maximum. In light of our holding that the sentence for the theft offense be vacated on the ground that the theft offense merged with the robbery offense for sentencing purposes, it is unnecessary for us to address this issue.


author: JOHNSON, Judge: POPOVICH, Judge,

text:
    465 A.2d 1288
    COMMONWEALTH of Pennsylvania v. Henry WATTS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 23, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Granted Feb. 8, 1984.

      Robert J. Kupits, Doylestown, for appellant.
    Wallace H. Bateman, Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant, Henry Watts, was arrested and charged with various offenses arising from his alleged sexual contact with Serrita Harris, a minor. He filed a pretrial application to suppress both the results of a polygraph examination and a confession given thereafter. The court suppressed the test results but denied the request to suppress the confession. Appellant was tried nonjury before another judge and was adjudicated guilty of rape, corrupting the morals of a minor, statutory rape, indecent assault and indecent exposure. Post-trial motions were timely filed and subsequently denied by the court sitting en banc. Sentence was imposed and appellant has perfected this appeal.

Appellant has raised seven issues. While we agree with the trial court, and will rely on its discussion, that the corpus delicti was established and that the evidence was sufficient, we must reluctantly disagree with the court’s failure to suppress appellant’s confession. The sole basis for our divergence of opinion is based on appellant’s first claim that his confession was a product of an improper agreement to admit at trial the results of the polygraph examination. Finding such confession resulted from misrepresentations made prior to the testing and which were not cured, we are constrained to vacate the judgment of sentence and remand for a new trial.

Upon the advice of counsel, appellant freely chose to submit to a polygraph examination. The testing occurred on May 27, 1981. Appellant was advised of his constitutional rights. Prior to the testing appellant and counsel signed an “Agreement and Stipulation For Polygraph.” Counsel had reviewed such document with appellant prior to their signing it. Paragraphs five and six of such agreement read as follows:

5. If it is the opinion of the polygraph operator that I am attempting deception when I give answers during the examination, I agree that testimony of the examiner will be presented at my trial in the above-captioned case. I specifically agree that the examiner will testify about the questions I was asked, about the answers which I gave and about his opinions regarding attempted deception on each of these answers and the scientific basis for his opinions regarding attempted deception.
6. I recognize that under the law of the Commonwealth of Pennsylvania, testimony about the polygraph examination might not be admitted at my trial over my objection, however, in view of the fact that the Commonwealth has agreed to dismiss the charges against me if I am found not to be attempting deception, I voluntarily waive my right to exclude such testimony at my trial and agree that the testimony about the polygraph examination and the opinion of the polygraph examiner will be admissible notwithstanding any existing law to the contrary.

At the conclusion of the polygraph test the examiner informed appellant that the test results indicated that he had been deceptive. The examiner then asked several questions pertaining to the alleged criminal incident and appellant gave the inculpatory responses here at issue. Appellant contends that his confession was a result of the above-created misconception that the polygraph results would be admissible at trial.

The Commonwealth readily admits that the results of a polygraph are not admissible even by stipulation. Commonwealth v. McIntosh, 291 Pa.Super. 352, 435 A.2d 1263 (1981); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980). However, the prosecution contends that appellant was advised by counsel, after which he made an informed choice, and accordingly his statement was voluntary.

The Commonwealth has the burden of proving by the preponderance of the evidence that a defendant’s confession represented a knowing and voluntary waiver of his right not to incriminate himself or herself. Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). In determining the voluntariness of a confession courts must consider the totality of the circumstances surrounding the confession. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Isaacman, 269 Pa.Super. 263, 409 A.2d 880 (1979).

It has long been the rule in this Commonwealth that a statement given after being advised that one has failed a lie detector may be admitted into evidence. Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Hipple, 333 Pa. 33, 3 A.2d 353 (1939). For a discussion of the admissibility of confessions made in connection with a polygraph examination, see Annot. 89 A.L. R.3d 230. However, this current appeal is controlled by Commonwealth v. Starr, 486 Pa. 530, 406 A.2d 1017 (1979).

In Starr the authorities requested that the defendant submit to a polygraph examination. The polygraph examiner orally informed the defendant, before testing, of his constitutional rights and also that there were some circumstances under which the results of a polygraph could be admitted by stipulation or court order. The defendant reluctantly agreed to take the test after the police had inquired as to why he did not wish to be tested. Following the examination the defendant was advised that the results indicated deception on his part and he was again advised of his rights. According to the defendant, the examiner told him that he did not have to say anything further because the results indicated he was lying. The defendant was told that the district attorney and the judge would be shown the results. The defendant in light of such representations “figured, well they got me” and confessed. The examiner did not deny making the statements attributed to him but instead stated if he had, “the context would have been in [a certain] form____”

On appeal the Supreme Court found that some representations had been made concerning the use of the polygraph examination. The court held that the “equivocating answer by the Commonwealth’s principal witness ... of precisely what representations were made ... [fell] short of satisfying the [prosecution’s] burden____” Id., 486 Pa. at 533, 406 A.2d at 1019. The Commonwealth failed to show that such representation did not “impinge with such force upon appellant’s understanding of his right to remain silent so as to render his decision to waive that right a knowing and voluntary one.” Id.

The trial court attempts to distinguish the present case from Starr, finding that unlike Starr, no threats were made here to the effect that the results would be shown to the trial judge. It was the court’s opinion that since appellant had requested to take such a test, he was not coerced merely because he was told that he had failed it. The Commonwealth adds that if appellant suffered any misper-ception at all as to the admissibility of the test results, it was due to his being misled by his own attorney before he took the test; it was counsel’s responsibility to inform appellant of the correct state of the law.

In Commonwealth v. Jones, 457 Pa. at 434-35, 322 A.2d at 126, the Supreme Court stated:

Just as a waiver cannot be intelligent where the accused is ignorant of crucial facts, the waiver may also be unintelligent where crucial facts are misrepresented. Thus, we must also determine whether the subterfuge employed by the police precluded the accused from making a knowing and intelligent waiver.

The court further held that “any misrepresentation which may cast doubt upon the • accused’s awareness of these rights would necessarily render the waiver suspect.” Id. While the court in Starr was concerned with a post-testing misrepresentation, we see no reason to treat a pre-testing misrepresentation any differently. A suspect informed pri- or to the test that any negative results will be brought into trial is subjected to the same pressures disapproved of in Starr. See People v. Zimmer, 68 Misc.2d 1067, 329 N.Y. S.2d 17 (1972), aff'd. 40 A.D.2d 955, 339 N.Y.S.2d 671 (1972) (among other factors, suspect read articles supplied by police, prior to the testing).

The defendant in Starr, when informed of the results of the polygraph, thought “they got me.” When appellant was similarly advised he “hung his head low” and uttered: “This is my whole life gone.” Such an expression in light of the circumstances of this case could support an inference that the misrepresentations impinged upon appellant’s understanding of his right to remain silent. The Commonwealth has failed to show otherwise.

As noted above, the Commonwealth contends that defense counsel’s apparent approval of the polygraph agreement, and its provisions pertaining to the admission of the results, relieved the police from providing accurate representations. We do not agree. Where a defendant’s waiver of a vital right is induced by counsel’s misrepresentations, such representations may be so unreasonable as to vitiate what appears to be an otherwise knowing and intelligent waiver. See Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975) (waiver of jury trial); Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979) (waiver of guilty plea); Commonwealth v. Hairston, 251 Pa.Super. 93, 380 A.2d 393 (1977) (waiver of jury trial).

Polygraph agreements can serve to both advise a defendant, and to record the parties’ understanding, of the procedure to be employed. When properly drafted to accurately reflect the law and the understanding of the parties they can assist in resolving later disputes. In the current case defense counsel did not request that a new agreement be typed, nor did he strike out the provisions in dispute, instead he apparently accepted such incorrect provisions. We find that here counsel’s failure to correct paragraph 5 and 6 of the agreement may have interfered with appellant’s ability to knowingly waive his right to remain silent.

The current appeal demonstrates that both the police and counsel inaccurately advised appellant concerning the admissibility of the polygraph results. The Commonwealth having failed to demonstrate that such advice did not impinge upon appellant’s ability to make an intelligent and voluntary waiver of his right to remain silent, we are bound by Starr to vacate the judgment of sentence.

Judgment of sentence is vacated and the case is remanded for a new trial.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

I disagree with the result reached by Judge Johnson. I believe that just as a defendant must prove that the validity of a guilty plea is tainted and primarily motivated by an illegally obtained confession in order to warrant its withdrawal, see Commonwealth v. McCloud, 312 Pa.Super. 29, 458 A.2d 219 (1983) (POPOVICH, J.), petition for allocatur denied August 1, 1983, so to the appellant herein must show how an incorrectly worded advisement/stipulation concerning the admissibility of the results of a polygraph test affected his inculpatory statements given following the rendition of Miranda warnings and in the presence of counsel.

      . 18 Pa.C.S. § 3121(4).

      . Id. § 6301(a).

      . Id. § 3322.

      . Id. § 3126.

      . Id. § 3127.

      . Appellant’s contentions are:
      (1) . Defendant’s Confession Was Inadmissible As The Product Of An Improper Agreement To Admit Polygraph Test Results In Evidence At Trial
      (2) . Defendant’s Confession Was Inadmissible Because Obtained In Violation Of A Written Agreement With The Attorney For The Commonwealth And In Violation Of Defendant’s Constitutional Rights
      (3) . Defendant’s Confession Was Inadmissible And Should Not Have Been Considered By The Fact-Finder Because The Requisite Corpus Delicti Was Not Established
      (4) . The Information Against The Defendant Should Not Have Been Permitted To Be Amended Following The Close Of The Commonwealth’s Case To Add An Additional Charge of Rape
      (5) . The Commonwealth Failed To Prove The Charges In Question Beyond A Reasonable Doubt
      (6) . The Evidence Established Ignorance Or Mistake On The Defendant’s Part As To A Matter Of Fact For Which There Was Reasonable Explanation Or Excuse Constituting A Defense To The Charges
      (7) . Defendant's Sentences On Certain Charges Exceeded Those Provided By Law

      . Due to our resolution of this claim we need not elaborate on the remaining issues.

      . Both Starr, supra, and Pfender, supra, predate the date of the polygraph examination in this case. Therefore cases such as Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977) and Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967) are not controlling. The Supreme Court in those cases, refused to condemn counsel's stewardship in advising their respective clients regarding the admissibility of their respective confessions as counsel was not held to a duty of forecasting a change in precedent.

        . We have difficulty perceiving any situation where such false information would not invalidate the confession. Furthermore, we question the ethical value of the false representations. We strongly suggest the Commonwealth establish and provide a legitimate testing procedure.


author: MONTEMURO, Judge:

text:
    465 A.2d 1293
    Lester S. MILLER, Jr. and Juniata Foods, Inc., Appellants, v. MIFFLIN COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY and Mifflin County Industrial Development Corporation, FMC Corporation and Avtex Fibers, Inc.
    Superior Court of Pennsylvania.
    Argued March 8, 1983.
    Filed Sept. 23, 1983.

      G. Thomas Miller, Randolph M. Baker, Harrisburg, for appellants.
    Allen Joseph Levin, Lewistown, for Mifflin County Indus. Development Authority, appellee.
    Robert B. Brugler, Lewistown, for Mifflin County Indus. Development Corp., appellee.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case was initiated in the Court of Common Pleas of Mifflin County with the filing of a complaint in equity by the appellants, Lester S. Miller, Jr., and Juniata Foods, Inc., against the appellees, Mifflin County Industrial Development Authority (MCIDA) and Mifflin County Industrial Development Corporation (MCIDC). The dispute between the parties arose from differences encountered in complying with the terms of an agreement for the sale of certain warehouse property. For the most part, appellants’ (the buyers) allegations pertained to the appellees’ (the sellers) failure to provide them with an adequate water supply to accommodate the warehouse sprinkler system and that ap-pellees’ agents had wilfully and wantonly removed a railroad spur line (Spur No. 1) located on that property without their consent. Appellants also asked the court to award compensatory punitive damages for the appellees’ trespass.

First, the court below found that appellants did have an implied easement right to a sprinkler system under the sale agreement. On this basis, the court awarded appellants the increased amount of fire insurance premiums due as a result of the unworkable sprinkler system, ordered appellee, MCIDA, to provide adequate water and water pressure to serve appellants’ warehouse sprinkler system for a reasonable cost; and further ordered appellee, MCIDA, to pay to appellants the cost of reactivating the sprinkler system. The court also ordered the appellants to execute an indemnification agreement to hold harmless appellee, MCIDA, from any claims by appellants, and their successors, which might arise as a result of negligent interruption of water service to the sprinkler system.

Second, the court found that appellants suffered no com-pensable loss for the removal of Spur No. 1:

With respect to the railroad spur issue, it is evident that the gravamen of Plaintiffs’ prayer for relief concerns damages in the form of reimbursement for the cost of replacing Spur 1. Testimony of a railroad builder placed this cost in the neighborhood of $22,000.00. While Plaintiffs have argued and pressed this claim at times in easement terminology, the relief actually sought is replacement of Spur 1 or the monetary value thereof. We must find this relief untenable and will not grant same because of the uncontradicted evidence of record which clearly established that Spur 1, prior to removal, was virtually worthless and unsuitable for rail siding purposes. Spur 1 was, according to the only witness with railroading experience who examined it prior to removal, old and deteriorated. It was not designed or constructed to bear those weights common to modern rail traffic. It was not repairable to a usable state and had only minimal scrap value. Nothing connected with Spur 1 was salvageable. Under these circumstances we can award no damages because there has been no compensable loss. No damages or harm flowed from the removal of the worthless Spur 1.
We do not condone the removal of Spur 1 from MILLER’S property without his consent, and we do not hold that MILLER is not entitled to an easement across MCI-DA’s property for the construction of a new siding. (Lower Court Opinion pp. 7-8)

In its Adjudication and Decree Nisi, the court awarded appellants $500.00 as “nominal damages for the removal of Spur 1.” Appellants filed exceptions thereto which were denied by the court en banc. This appeal followed.

Appellants contend that the court below erred in denying compensatory damages to cover the cost of replacing the dismantled spur line and in failing to award punitive damages, or to even make findings of fact and conclusions of law on the question concerning the seriousness of appellees’ actions in removing the spur line. Appellees argue that there is sufficient evidence in the record to support the court’s determination in refusing to award compensatory damages and that the award of “nominal damages” in this case relates not to nominal compensatory damages but rather to an award of punitive damages. The latter argument is based on the court’s adjudication, supra, which states that the appellants suffered no compensable loss for the removal of the “old”, “deteriorated” and “worthless” spur. Thus, the court’s award of “nominal damages”, appellees argue, can only be viewed as punitive in nature for their improper conduct in removing the spur without appellants’ consent.

Appellants’ first contention must be rejected. We cannot reverse or modify a final decree unless there has been an error of law, an abuse of discretion, or if the findings, affirmed by the court en banc, are not supported by the record or there has been a capricious disbelief of the credible evidence. In Re Estate of Hastings, 479 Pa. 122, 387 A.2d 865 (1978).

In the instant case, one of the appellees’ witnesses, an expert with thirty-eight (38) years of experience in repairing, constructing and dismantling railroad track, testified to the following:

BY MR. KNEPP [Counsel]:
Q. Mr. Molek, did you inspect the track between the two points that your marked on Spur 1?
A. Yes.
Q. And using my copy of the Exhibit, what was the condition of the track in the area of approximately the red lines that are on my piece of paper that Mr. Miller’s familiar with?
A. It was found the rails being of 80 and 85 pounds per yard, original size, were very badly deteriorated. The bases were destroyed beyond the point of support by the fasteners. The rails were lifted without any disturbance of the ties. The track gauge was only supported by compacted earth off to the sides. The ties were not removed because the ties stayed in place along with the basteners. Only the rails were removed, that consisted of approximately 66% of the area across the premises that are shaded. I wasn’t sure at the time, not knowing conditions that existed. I did no measuring.
He * * H= H< H*
Q. Now, going back to my question, Mr. Molek, was this track that was removed, was it suitable for carrying a car?
A. No.
Q. Why?
A. It was probably laid in the 1920’s. Badly deteriorated. Designed for probably 30 to 40 ton locomotives. Designed and build for 30—40 ton locomotives. The design hindered service with Conrail servicing that particular trackage exerts unnecessary and excessive pressure which causes damage to the trackage. Conrail’s using in excess of 100 ton. (N.T. 82-83, 84-85)

This testimony provided ample support for the court’s decision.

Appellants also challenge the court’s failure to award punitive damages as well as the court’s failure to make findings and conclusions of law in its adjudication. Appellants admit that although they prayed for punitive damages in their complaint, they did not make a formal request for specific findings of fact or law on this issue prior to the court’s adjudication and decree nisi. They did, however, raise an exception to the court en banc on this point, which was denied without discussion.

ORDER

Now, December 29, 1981, it appearing that certain matters were raised by Plaintiffs’ and Defendants’ Exceptions To Adjudication and Decree Nisi which appeared to have arguable merit but which were rectified in that substantial justice was accomplished among the parties by Adjudication filed in action of Mifflin County Industrial Development Authority versus Lester S. Miller, Jr., and Juniata Foods, Inc., to Civil Action No. 1829 of 1980, Plaintiffs’ and Defendants’ Exceptions to Adjudication and Decree Nisi are overruled, and the Prothonotary is directed to enter the Decree Nisi as the Final Decree.

We do not understand the court en banc’s use of a related action to declare that “substantial justice” has been done in this case even though the claims raised are of “arguable merit”. This explanation is vague and invites confusion. There is no question in this case that appellants established liability and, therefore, upon a proper showing, punitive damages could have been awarded. Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982). “Pennsylvania has adopted the rule of punitive damages as set forth in § 908 of the Restatement of Torts and the comments thereunder. Section 908(1) provides: ‘ “Punitive damages” are damages other than compensatory or nominal damages awarded against a person to punish him for his outrageous conduct.’ ” Focht v. Rabada, 217 Pa.Super. 35, 38, 268 A.2d 157, 159 (1970). However, we do not know what the court has ruled concerning punitive damages. The court’s failure to discuss or consider the issue of punitive damages must be rectified to comply with Pa.R. C.P. 1517(a). See, Wade v. S.J. Groves & Sons, Co., 283 Pa.Super. 464, 424 A.2d 902 (1981); Frowen v. Blank, 242 Pa.Super. 276, 363 A.2d 1267 (1976), later app. 266 Pa.Super. 145, 403 A.2d 585 (1979), rev’d 493 Pa. 137, 425 A.2d 412 (1981).

Consequently, we remand the case to the court below for specific findings of fact and conclusions of law on the issue of punitive damages and to make an award if it believes that such an award is proper. Compliance is required within sixty (60) days from the date of this order. Jurisdiction is retained by this court pending remand.


author: HOFFMAN, Judge:

text:
    465 A.2d 1296
    COMMONWEALTH of Pennsylvania v. Barbara N. COX, Appellant.
    Superior Court of Pennsylvania.
    Argued June 16, 1983.
    Filed Sept. 23, 1983.

      Wallace A. Murray, Jr., Norristown, for appellant.
    William Ditter, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that she did not knowingly and intelligently waive her right to file post-verdict motions. We agree and, accordingly, remand for the filing of post-verdict motions nunc pro tunc.

On February 27, 1981, appellant was issued a citation for passing a school bus pursuant to 75 Pa.C.S.A. § 3345(a). On April 5, after a hearing before the District Justice, appellant was found guilty and fined $100 plus costs. Appellant appealed from her summary criminal conviction to the Montgomery County Court of Common Pleas, where, after a de novo trial, she was again found guilty. This appeal followed.

Appellant contends that she was not apprised of her right to file post-verdict motions. Pa.R.Crim.P. 1123(c) requires the court to inform the defendant (1) of her right to file post-verdict motions and of her right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which she must file such motions; and (3) that only the grounds contained in such motions may be raised on appeal. If the record is devoid of a rule 1123 colloquy and the court’s only actions were to find the defendant guilty and impose sentence, the defendant cannot be found to have knowingly and intelligently waived her right to file post-verdict motions. Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981).

Here, the Commonwealth concedes that appellant was never informed of her right to file post-verdict motions. Instead, the court held a de novo trial, found appellant guilty, and immediately imposed sentence. Accordingly, we remand for the filing of post-verdict motions nunc pro tunc. Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981).

Remanded for the filing of post-verdict motions nunc pro tunc. Jurisdiction not retained.


author: CERCONE, President Judge:

text:
    465 A.2d 1297
    WEST CHESTER PLAZA ASSOCIATES v. The CHESTER ENGINEERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed Sept. 23, 1983.

      John R. Merrick, Kennett Square, for appellant.
    Richard L. Cantor, Paoli, for appellee.
    Before CERCONE, President Judge and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, The Chester Engineers, takes this appeal from the order of the lower court denying appellant’s petition to open judgment, which was entered by confession by appellant’s landlord, West Chester Plaza Associates, appellee. Appellant argues, inter alia, that there was sufficient evidence presented to raise a question for a jury as to whether appellee-landlord breached its duties under the lease, and thus, that the court erred in refusing to open judgment. We agree.

It is the well established rule that to open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); Pa.R. Civ.P. 2959. Although at one time it was further required that a party establish equitable considerations sufficient to impress the court with the need for relief, it is now held that equitable considerations are no longer relevant unless related to a particular asserted defense. Bell Federal Savings & Loan Ass’n of Bellevue v. Laura Lanes, Inc., supra; Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977). With this rule firmly in mind, we turn now to the facts of the instant case.

On May 2, 1978, appellant-tenant entered into a lease with appellee-landlord for the rental of office space in West Goshen Township, Chester County, Pennsylvania. The leasehold consisted of three offices and a reception area. In an addendum, the lease provided in part:

It is agreed and understood that Lessor shall supply to Lessee all heating, air-conditioning, water, sewer, and any other utilities needed for the comfortable occupation of the demised premise.

Initially, the tenant found the leasehold to be satisfactory. Then, in the fall of 1978, appellant noticed a change in the quality of the air coming into the office. This change apparently coincided with the rental of an adjacent office by another business which employed a number of people for telephone solicitations. Accordingly to the deposition of Robert P. Laslo, regional director of The Chester Engineers, at first he just noticed an odor, but by January of 1979 the problem was such that Laslo experienced a burning sensation in his eyes and “a general discomfort, a closeness.” Laslo complained to the landlord a number of times about the problem, as was evidenced by copies of letters attached to appellant’s petition to open and/or strike. The parties could not reach an amicable resolution to the problem and by a letter, dated November 27, 1979, appellant’s counsel notified appellee of appellant’s intention to vacate the premises. Counsel asserted in this letter that the failure of the landlord to remedy the situation despite numerous requests from appellant operated as a “breach of the implied warranty of habitability.”

Ultimately, on December 31, 1979 appellant vacated the premises and on January 23, 1980 the landlord took the herewithin confession of judgment. A month later, appellant filed its petition to open and/or strike the judgment. In this petition, appellant asserted, inter alia, the landlord breached an implied warranty of habitability. Following appellee’s answer and deposition of Robert P. Laslo, both parties filed supplemental briefs. In its supplemental brief, appellant cites the then recently decided case of Pawco, Inc. v. Bergman Knitting Mills, Inc., 283 Pa.Super. 443, 424 A.2d 891 (1980), which noted the rejection by the courts of the old common law rule of independence-of-obligations approach to covenants in a commercial lease. It was in this supplemental brief that appellant for the first time specifically referred the court to the landlord’s promise in the lease to “supply to Lessee all ... air-conditioning ... needed for the comfortable occupation of the demised premise,” and appellant alleged the breach of this covenant. In a footnote, appellant asked the court for leave to amend the petition to open and/or strike to include this latter argument if the court did not find the issue to be adequately raised. Without specifically addressing this issue, the court denied appellant’s petition, although the court did open judgment for the limited purpose of “a determination of the amounts of the security deposit retained by [appellee] and the sum to be credited to [appellant] as a result of the reletting of the leasehold premises.” (footnote omitted). Appellant now appeals.

In this appeal, appellant basically renews his arguments from below. In reply, appellee contends, inter alia, that appellant waived the issue of the landlord’s breach of the express covenant to provide air conditioning when appellant failed to include this point in its original petition to open. Appellee cites Pa.R.Civ.P. 2959(c), which states:

A party waives all defenses and objections he does not include in his Petition or Answer.

Appellee interprets Rule 2959(c) as mandating that all issues must be set forth in the original petition under penalty of waiver. Appellee thus asserts that appellant has not adequately raised the argument regarding the landlord’s express breach of the covenants of the lease. We disagree with appellee’s waiver argument.

It has been held that a court may consider supplemental memoranda in considering whether a petitioner in an action to open alleged a meritorious defense. Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979); Ecumenical Enterprises, Inc. v. NADCO Construction, Inc., 253 Pa.Super. 386, 385 A.2d 392 (1978). As we wrote in Shainline

Appellee, as did the court below, has confined its arguments to the contents of the petition and suggest it is improper to go outside the petition to determine if a meritorious defense exists. This court has made it clear on prior occasions that, in addition to the petition to open, it is proper to also consider depositions Ecumenical Enterprises, Inc. v. NADCO Construction Company, 253 Pa.Super. 386 fn. 4, 385 A.2d 392 fn. 4 (1978); Kilgallen v. Kutna, 226 Pa.Super. 323, 310 A.2d 396 (1973), additional testimony, B. C. Y. Inc., Equipment Leasing v. Bukovich, 257 Pa.Super. 121, 390 A.2d 276 (1978), as well as supplemental memorandae, Silverman v. Polis, 230 Pa. Super. 366, 326 A.2d 452 (1974) in assessing a meritorious defense.

Shainline v. Alberti Builders, Inc., supra, 266 Pa.Super. at 134 n. 1, 403 A.2d at 579 n. 1.

In Shainline, the petitioner merely alleged in its petition to open that it would “raise the defense of substantial failure of consideration.” However, in its supplemental memorandum, appellant more specifically set forth its defense of failure of consideration, in addition to raising the defenses of accord and satisfaction and the Statute of Frauds. We concluded that appellant set forth its defenses in sufficient detail to justify relief if proven at trial.

A similar result was reached in Ecumenical Enterprises, Inc. v. NADCO Construction, Inc., supra. There, in relevant part, the petitioner merely averred in its petition to open that it “has a meritorious defense.” On appeal, we agreed with the lower court’s conclusion that the above allegation, standing alone, was insufficient for the purposes of demonstrating the existence of a meritorious defense since the facts underlying the defense were not averred. However, we concluded that the court was “unduly technical” when it failed to also consider the relevant testimony taken in depositions, and we found that the petitioner in that case had sufficiently established a meritorious defense. See also Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961); Minetola v. Samacicio, 399 Pa. 351, 160 A.2d 546 (1960); Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 363 A.2d 1229 (1976).

We find that the rule of the above cited cases applies with equal force to appellant’s case. In its petition to open, appellant included this averment.

The tenant can produce evidence in his defense which, in a jury trial, would require the issues to be submitted to the jury. Pa.R.C.P. No. 2959(e); 8 Goodrich-Amram 2d § 2959:1.

While this averment, standing alone, would be insufficient to demonstrate the existence of a meritorious defense, we conclude that the petition when read in conjunction with appellant’s supplemental brief along with the deposition and copies of letters sent by a representative of appellant company to the landlord and along with the copy of the lease, which was attached to the complaint for confession of judgment, are sufficient to raise appellant’s defense of breach of an express covenant.

Appellant also argues that the judgment should be stricken because of the landlord’s alleged breach of the express covenant to furnish air conditioning adequate for the comfortable occupation of the premises. It is the settled rule that a petition to strike is proper only when the defect in the original judgment appears on the face of the record; if, however, the alleged defect is based on a matter dehors the record, the proper approach is a petition to open judgment. J.F. Realty Co. v. Yerkes, 263 Pa.Super. 436, 398 A.2d 215 (1979). When the truth of the factual averments are disputed, then the proper remedy is not to strike the judgment but to open it. Id., 263 Pa.Superior at 440, 398 A.2d at 217. See also Fourtees Company v. Sterling Equipment Corporation, supra. In the case sub judice, while appellant’s alleged defense is sufficient to raise issues that would have required submission to a jury, and thus to open the judgment, the very fact that appellee disputes the existence of a breach indicates that the lower court acted properly in refusing to strike judgment.

Reversed and case is remanded. This Court does not retain jurisdiction.

      . The court opened judgment to the limited extent of the amount of the judgment, allowing for the landlord’s mitigation of damages and credit for a security deposit, but the court otherwise permitted the judgment to stand.

      . Pawco relied on the Supreme Court’s decision in Teodori v. Werner, 490 Pa. 58, 415 A.2d 31 (1980). It was the Teodori case which expressly put aside the old common law, independence-of-obligations approach as applied to a commercial lease where the landlord’s promise to perform was a "significant inducement" to the making of the lease by the tenant.

        Teodori relied upon McDanel v. Mack Realty Co., 315 Pa. 174, 172 A. 97 (1934), where the Court recognized the error of the independence-of-obligations approach as applied to a commercial lease. At issue in McDanel was the scope of a commercial tenant’s remedies where the landlord breached a covenant to provide heat. The McDanel Court listed these three options: (1) the tenant could perform at his own expense and deduct this cost from the rent due, (2) the tenant could surrender the premises to relieve himself from any further obligation to pay rent, or (3) the tenant could "retain possession of the premises and deduct from the rent the difference between the rental value of the premises as it would have been if the lease had been fully complied with by the landlord and the rental value in the condition it actually was.” Id., 315 Pa. at 178, 172 A. at 98.

      . Because of our disposition of this issue, we need not address appellant’s argument that judgment should be opened because appel-lee-landlord breached an implied warranty-of-habitability.

      . For the same reasons, we find that the court did not err when it refused to strike judgment based on appellant’s claim that appellee-landlord breached an implied warranty of habitability.