text:
    480 A.2d 295
    RCK, INC., Appellant, v. Herbert and Marlene KATZ.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied Feb. 21, 1985.

      M. Patricia Carroll, Philadelphia, for appellant.
    Joseph V. Cardona, Philadelphia, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

In this appeal we are asked to construe Section 407(a) of the Act of January 30, 1974 (“Act”), P.L. 13, as amended, 41 P.S. § 407(a), and determine how Section 407(a) affects a creditor’s efforts to execute upon a confessed judgment.

Section 407(a) of the Act states that

[a]s to any residential real property, a plaintiff [creditor] shall not have the right to ... execute ... on a note ... confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedures [Pa.R.C.P. Nos. 2981-86], files an appropriate action and proceeds to judgment ... against defendant [debtor] as in any original action. The judgment by confession shall be changed as may be appropriate by a ... decree entered by the court in the action. After the ... original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings.

Thus, Section 407(a) insulates debtors’ residential real property from rash foreclosure by requiring that before executing against such property, creditors obtain two judgments: first, a confessed judgment and second, a judgment in an original Section 407(a) action.

I. Confessed Judgment

On September 17, 1976, the Katzes contracted with RCK for the purchase of a restaurant business. To secure a portion of the purchase price, the Katzes signed a promissory note which contained a warrant of attorney authorizing confession of judgment against the Katzes.

On November 18, 1976, judgment by confession was entered on the promissory note, and the Katzes were properly notified of the entry of judgment (Pa.R.C.P. Nos. 236 and 2958(f)). Damages in the amount of $25,763 were assessed against the Katzes on February 2, 1978. Subsequently, on November 15, 1978, the Katzes filed a petition to open the confessed judgment. The petition to open was denied.

In satisfaction of the confessed judgment, RCK sought execution against the Katzes’ residential real property and business assets. To fulfill the statutory requirements for execution against residential real property, RCK brought a Section 407(a) original action.

II. Section 407(a) Judgment

On November 28, 1979, RCK filed a complaint against the Katzes to initiate a Section 407(a) action and acquire the second judgment needed as a precedent to executing on the Katzes’ residential real property.

The Katzes failed to file an answer to RCK’s complaint, and accordingly, on January 16, 1980, RCK secured a default judgment (Pa.R.C.P. No. 1037(b)) in the Section 407(a) action. Damages in the amount of $31,800.87 were assessed against the Katzes.

Since the Section 407(a) action resulted in a second judgment for RCK, RCK then filed a praecipe for a writ of execution against the Katzes’ residential real property. Thereafter, the Katzes were notified that their debt to RCK would be satisfied by a sheriff’s sale of their home.

Reacting to notice of the sheriff’s sale, on February 15, 1980, the Katzes petitioned the trial court to open the Section 407(a) judgment. On January 29, 1981, the trial court opened the Section 407(a) judgment on the grounds that the Katzes had met “the requisites for obtaining relief from a default judgment____” Trial Court Order of January 29, 1981. RCK filed a timely notice of appeal.

In response to RCK’s notice of appeal, the trial court wrote an opinion (Pa.R.A.P. 1925(a)) which justified its opening RCK’s Section 407(a) judgment on the grounds that the Katzes had met the requisites for obtaining relief from a confessed judgment. In other words, the trial court’s order and opinion were inconsistent. The order characterized RCK’s Section 407(a) judgment as a default judgment whereas the opinion characterized RCK’s Section 407(a) judgment as a confessed judgment.

Therefore, the precise issue in this appeal is the proper characterization of RCK’s Section 407(a) judgment and, correspondingly, the correct standards for opening the judgment. In this instance RCK’s Section 407(a) judgment is viewed by the Katzes as a confessed judgment and by RCK as a default judgment. For the following reasons, we hold that the Section 407(a) judgment in this case is a default judgment subject to opening upon compliance with the standards for opening a default judgment.

Section 407(a) states that in addition to acquiring a confessed judgment, a creditor must obtain a favorable judgment in an “original action” brought pursuant to Section 407(a). Section 407(a) further states that the parties to the original action “shall have the same rights as parties to other original proceedings.”

The statutory wording clearly shows that a Section 407(a) action is a de novo proceeding wherein the parties are not restricted to claims or defenses raised in conjunction with a creditor’s earlier acquisition of a confessed judgment or a debtors’ petition to open same. Otherwise construing the phrase “original action” would ignore the plain meaning of the words and defeat Section 407(a)’s legislative purpose of assuring debtors an opportunity to assert any and all potential claims and defenses which might preclude undue loss of their residential real property.

Pursuant to Pa.R.C.P. Nos. 2981(b) and 2983, a Section 407(a) original action is governed by the assumpsit rules of civil procedure and is commenced by the filing of a eomplaint. The assumpsit rules (Pa.R.C.P. No. 1037(b)) provide that a defendant’s failure to answer a complaint results in a default judgment for the plaintiff. Therefore, the Katzes’ failure to answer RCK’s complaint in the Section 407(a) original action results in a default judgment for RCK. See General Electric Credit Corp. v. Slawek, 269 Pa.Super.Ct. 171, 409 A.2d 420 (1979); Lafayette Trust Bank v. JAJ Corp., 17 Pa.D. & C.3d 256 (1980).

Since the parties to a Section 407(a) original action must proceed according to the assumpsit rules and possess the “same rights as parties to other original proceedings,” the parties can challenge a default judgment in a Section 407(a) original action in the same manner that default judgments are contested in other original assumpsit actions. The parties may initially petition to strike or open the default judgment and may subsequently appeal. See General Electric Credit Corp.

In the case sub judice the Katzes filed a petition to open RCK’s Section 407(a) judgment. The trial court granted the Katzes’ petition, and RCK brought this appeal to protest the opening of its default judgment. We now consider whether the Katzes’ petition presented sufficient grounds for opening RCK’s Section 407(a) default judgment.

“In an assumpsit action, a petition to open a [default] judgment will not be granted unless three conditions are met. The conditions are: (1) the petition has been filed promptly; (2) the default is reasonably explained; and (3) a meritorious defense is shown.” Sines v. Packer, 316 Pa.Super.Ct. 500, 503, 463 A.2d 475, 477 (1983). Because we conclude that the Katzes have not reasonably explained their failure to answer RCK’s complaint in the Section 407(a) action, we reverse the trial court’s order opening the Section 407(a) default judgment.

The only purported excuse offered by the Katzes for their failure to answer RCK’s complaint appears in the twelfth paragraph of the Katzes’ petition to open the Section 407(a) judgment. The twelfth paragraph avers that “notice pursuant to [the Act] was required and was not given rendering [RCK’s] Complaint ... unlawful----” This averment is unsupported by the record.

Section 403 of the Act, 41 P.S. § 403, mandates that a debtor receive at least thirty days’ advance notice of any legal action to recover under an obligation evidenced by a security document and secured by a lien upon residential real property. The present record includes a copy of the Section 403 notice which RCK sent to the Katzes by certified mail on April 4, 1979, plus a copy of the receipt signed by Herbert Katz on April 5,1979, to acknowledge service of the notice.

We find that since RCK filed its Section 407(a) complaint on November 28, 1979 (substantially more than thirty days after service of the Section 403 notice), RCK complied with the Act’s notice provision. Hence, the Katzes’ failure to answer RCK’s Section 407(a) complaint remains unexplained, and the trial court erred in opening the default judgment.

Accordingly, we reverse the trial court’s order of January 29, 1981, and reinstate RCK’s Section 407(a) default judgment.

Thus, the record evidences that RCK has acquired both a confessed judgment and a Section 407(a). judgment against the Katzes, thereby fulfilling Section 407(a)’s preconditions to execution against the Katzes’ residential real property. We now consider the nature of that execution as determined by the relationship between RCK’s confessed judgment and RCK’s Section 407(a) default judgment.

Section 407(a) contains a merger clause which provides that after a judgment has been obtained in a Section 407(a) original action, “that judgment shall merge with the [creditor’s earlier acquired] confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment.”

We hold that merger of the Section 407(a) judgment into the prior confessed judgment happens after the parties have exhausted their opportunities to challenge the Section 407(a) judgment, ie., after the parties to the Section 407(a) original action have been accorded the “same rights [including appellate rights] as parties to other original proceedings.”

The merger of the Section 407(a) judgment into the confessed judgment produces a single, integrated confessed judgment (a “merged” confessed judgment) upon which execution ultimately occurs. The “merged” confessed judgment consists of the creditor’s previous confessed judgment “conformed,” i.e. adjusted, to reflect the Section 407(a) judgment amount. Pa.R.C.P. No. 2986; 11 Standard Pennsylvania Practice 2d § 67:45 (1982).

In summation, we reverse the trial court’s order of January 29, 1981, and reinstate RCK’s Section 407(a) default judgment. This case is remanded to the trial court for further proceedings consistent with this opinion and Pa.R. C.P. No. 2986(a). Jurisdiction is relinquished.

WIEAND, J., concurred in the result.

      . The difference in the amount of damages assessed against the Katzes on the confessed judgment ($25,763) and the default judgment ($31,-800.87) reflects additional interest and attorney's fees which accrued in the intervening time between the two judgments.

      . The Katzes claim that the issues raised by RCK on appeal have not been properly preserved below and are therefore waived on appeal. We have carefully examined the record and conclude that the issues are adequately preserved for appeal. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

      . The requisites for opening a default judgment are more stringent than the requisites for opening a confessed judgment; hence, the importance of deciding how RCK’s Section 407(a) judgment should be characterized. To open a confessed judgment, a petitioner must show (i) that he promptly filed his petition to open and (ii) that he has a meritorious defense to the judgment by confession. Citizens National Bank of Evans City v. E.H. Bilowich Construction Corp., 303 Pa.Super.Ct. 193, 449 A.2d 644 (1982). To open a default judgment, a petitioner must show (i) that he promptly filed his petition to open; (ii) that he has a meritorious defense, and (iii) that his failure to defend [here, the Katzes’ failure to answer RCK’s complaint in the Section 407(a) action] was excusable. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Sharon Hill Contracting Co. v. Recreational Equipment Unlimited, Inc., 284 Pa.Super.Ct. 118, 425 A.2d 447 (1981).

      . Having determined that the Katzes did not meet the second requisite for opening a default judgment, we do not proceed to consider whether the Katzes alleged a meritorious defense. However, we emphasize that inasmuch as a Section 407(a) action is a de novo proceeding, the Katzes could properly have reiterated in their petition to open the Section 407(a) judgment any defenses previously asserted in their unsuccessful petition to open RCK’s confessed judgment against them.

      . A lien based upon a “merged” confessed judgment relates back to the date of the lien based upon the creditor’s earlier confessed judgment. See Pa.R.C.P. No. 2982; see generally Pa.R.C.P. No. 2959(f) and its Explanatory Note.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    480 A.2d 299
    David KLYMAN, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied Nov. 21, 1984.

      George J. O’Neill, Philadelphia, for appellant.
    Norman Hegge, Jr., Philadelphia, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

- The original plaintiff in this case, David Klyman, brought an action in trespass against Southeastern Pennsylvania Transportation Authority (hereinafter SEPTA) for injuries sustained when, as a pedestrian, he was involved in a collision with a SEPTA bus. He died on January 10, 1980 of causes unrelated to this action and his wife, Esther Klyman, was substituted as plaintiff. On November 17, 1980 following a jury trial a verdict was returned for the Appellee, SEPTA.

Appellant seeks review of a February 3, 1982 order of the Court of Common Pleas of Philadelphia County which denied a motion for a new trial. Klyman argues that the verdict below was against the weight of the evidence and the trial court erred in refusing to permit an expert witness to testify. A decision by a trial judge not to grant a new trial can only be reversed under certain conditions. In Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970) Justice Eagen, speaking for the court, stated:

“We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial.”

440 Pa. at 411, 269 A.2d at 479 (citations omitted).

In reviewing a motion for new trial this court must consider all competent evidence and determine whether or not the verdict was against the clear weight of the evidence, or whether there was clear error of law or palpable abuse of discretion in the rulings of the trial court. Hayes Cr. Country Cl. v. Central Penn Quarry S. & C. Co., 407 Pa. 464, 181 A.2d 301 (1962); Baltimore v. Ohio R. Co. v. C.J. Langenfelder & Son, Inc., 222 Pa.Super. 138, 292 A.2d 415 (1972). Several important facts in the instant case are not in dispute. Appellant, David Klyman, walked into the right side of the SEPTA bus while crossing Market Street in Philadelphia. At the time of the collision the SEPTA bus had the green light and Appellant was crossing Market Street against a red light.

All the eyewitnesses who testified indicated that Appellant collided with the SEPTA bus at some point between the front passenger doors and the rear passenger door, even though the precise point of impact varied from witness to witness. The eyewitnesses also differed in their estimates of the speed of the SEPTA bus at the time of the collision. Rochelle Swartz, a passenger on the bus, testified that the bus was going the “slowest speed it could go and, continue moving” (Supp.R. at 8b) while Klaus C. Rohr, a pedestrian at the intersection, estimated the bus’s speed at “between fifteen and twenty miles an hour.” (R. at 153a). Additionally there was testimony from Police Officer Kelly that the length of the SEPTA bus was forty feet and that he measured a skid mark from the rear of the bus which was thirty-two feet in length. (R. at 7a-8a)

Under these facts we cannot conclude that the verdict was against the weight of the evidence nor can we say that the trial court abused its discretion or committed reversible error when it denied appellant’s motion for a new trial.

Appellant also alleges that the trial court erred when it refused to permit the testimony of Mr. Dimitry Sergay, a mechanical engineer, who would have testified as an expert that a bus would have to have been travelling at least twenty-three miles per hour to leave a thirty-two foot skid mark. Counsel for the Appellant attempted to introduce Mr. Sergay’s testimony both in the case-in-chief and on rebuttal.

The trial court found that Appellant failed to comply with Pa.R.C.P. 4003.5 governing discovery of expert testimony and, therefore, refused to let Mr. Sergay testify. Pa.R.C.P. 4003.5 provides in relevant part:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert____
(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.”

This rule permits the trial court to impose sanctions on noncomplying parties. The explanatory note following Rule 4003.5 reiterates that the inquiring party can require the answering party to disclose the identity of expert witnesses expected to be called at trial, and demand disclosure of the substance of the facts and opinions to which the expert will testify along with a summary of the grounds for his opinion. Regarding possible sanctions the explanatory note continues:

“If the answering party or the expert does not fully comply with the foregoing, the court under subdivision (b) or (c) may exclude or limit the testimony of such expert if offered at the trial.”

While explanatory notes are not actually part of the rules themselves, they indicate the spirit and motivation behind the drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted. Laudenberger v. Port Auth. of Allegheny Cty., 496 Pa. 52, 59, 436 A.2d 147, 151 (1981).

Even without reliance on the Pennsylvania Rules of Civil Procedure, appellate decisions have addressed the trial court’s authority to control the admission of expert testimony. It is well established that the admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). In the instant case Appellant was served with “expert witness” interrogatories on August 18, 1980. Appellant’s only response to these interrogatories was an October 9, 1980 letter to SEPTA’s counsel (N.T. 11/10/80 at 63, 64; R. at 47a, 48a) which attached a curriculum vitae of Dimitry Sergay. Regarding the expert witness’s proposed testimony, the letter stated “Mr. Sergay will testify to his calculations based on the thirty-two feet of skid marks and other evidence in the police report relating to the speed and control of the bus.”

Counsel for SEPTA immediately objected that the information contained in the October 9, 1980 letter was insufficient and requested a summary of the expert witness’s intended testimony (N.T. 11/10/80 at 60-62; R. at 44a-46a). The requested report was never delivered to the Appellee. The proffered reason given by Appellant’s counsel for not complying with SEPTA’s request was a desire not to diminish the chances for settlement of the case by incurring the additional expense of an expert witness report. (N.T. 11/10/80 at 63; R. at 47a).

Without question Appellant failed to comply with the requirements of Rule 4003.5. In light of Appellant’s noncompliance, we do not believe that the trial court abused its discretion by refusing to permit Mr. Sergay to testify.

Following the trial court’s refusal to permit Mr. Sergay to testify for Appellant in the case-in-chief, counsel for Appellant attempted an “end run” around Rule 4003.5 by calling Mr. Sergay as a rebuttal witness. The trial court properly refused to permit Mr. Sergay to testify in rebuttal.

Our supreme court set forth the hornbook law on rebuttal testimony in Downey v. Weston, 451 Pa. 259, 268-69, 301 A.2d 635, 641 (1973).

“It is an elementary proposition that the plaintiff must prove during his case in chief all essential elements of his action as to which he has the burden of proof, and that he may not as a matter of right introduce evidence in rebuttal which is properly part of his case in chief. Murphy v. City of Philadelphia, 420 Pa. 490, 218 A.2d 323 (1966); Jarvis v. Bell, 296 Pa. 568, 146 A. 153 (1929). Laub, Penna. Trial Guide § 116, at 248. The trial court has discretion in excluding as rebuttal evidence that which is properly part of the case in chief. Flowers v. Green, 420 Pa. 481, 218 A.2d 219 (1966); Potochnik v. Pittsburgh Rys. Co., 379 Pa. 154, 108 A.2d 733 (1954). See also Llewellyn v. Duquesne Light Co., 273 Pa. 17, 116 A. 530 (1922).”

In the case at bar the Appellant’s counsel obviously felt Mr. Sergay’s testimony was important to his case-in-chief. If Mr. Sergay had testified, and his testimony had been believed by the jury, the Appellant might have established that the SEPTA bus was exceeding a reasonable speed at the time of the accident. Henry’s treatise on Evidence indicates that “[a] party cannot, as a matter of right, offer in rebuttal evidence which is properly part of his case-in-chief, but will be confined to matters requiring explanation and to answering new matter introduced by his opponent” 2 Henry Pa.Evid. § 730 (4th ed. 1953).

Since the testimony of Mr. Sergay, if presented, would properly have been part of Appellant’s case-in-chief, the trial court was not required to permit Mr. Sergay’s testimony on rebuttal and, therefore, did not abuse its discretion when it excluded Sergay’s testimony.

The trial court’s Judgment of February 16, 1982 is affirmed.


author: CERCONE, Judge:

text:
    480 A.2d 303
    William M. GOERTEL and Donald E. Goertel v. Jeff MUTH and Tommi Sue Muth, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed Aug. 10, 1984.

      Michael P. Shay, Bethlehem, for appellants.
    Barbara L. Hollenbach, Bethlehem, for appellees.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

Appellants contend that the jury’s verdict was not so ambiguous and unclear that a new trial was warranted. We agree, and, accordingly reverse the order of the lower court and remand for judgment to be entered on appellants’ behalf.

This case arose from a vehicular intersection accident in Easton, Pennsylvania, on April 29, 1978. Plaintiff-appellee William M. Goertel and Donald E. Goertel filed an action in trespass against defendants-appellants Jeff Muth and Tom-mi Sue Muth for personal injuries which William M. Goertel sustained. William M. Goertel and Tommi Sue Muth were driving their respective vehicles when they collided. The basic issue at trial was who had the green light. Each side presented testimony and a jury verdict form was prepared by the court with suggestions by counsel for the parties in conformity with the Comparative Negligence Statute. It is this form which gave rise to the new trial grant, owing to the responses by the jury.

SPECIAL VERDICT
QUESTIONS FOR JURY
1. Was Tommi Sue Muth negligent?
YES _X_
NO _
(If Answer is “YES”, go to next question. If answer is “NO”, return to the court room.)
2. If the answer to question # 1 is “YES,” was Tommi Sue Muth’s negligence a substantial factor in bringing about damages to William M. Goertel?
YES __
NO _X_
(If answer is “YES” or “NO”, go to next question.)
3. Was William M. Goertel negligent?
YES _X_
NO _
(If answer to question # 3 is “YES,” go to. next question. If answer is “NO,” go directly to question # 6.
4. If the answer to question # 3 is “yes,” was William M. Goertel’s negligence a substantial factor in bringing about damages to William M. Goertel?
YES _X_
NO _
(If answer is “YES” or “NO”, go to next question.)
5. What was the percentage of causal negligence of each party for the total happening of the accident? TOMMI SUE MUTH (Answer only if answer to question # 1 and question # 4 is “YES.”
_10_%
WILLIAM GOERTEL (Answer only if answer to question # 3 and question # 4 is “YES.”
' _90_%
Plaintiff and defendant total 100%.
(Proceed to question # 6)
6. State the total amount of damages, if any, sustained by the plaintiff, William Goertel, as a result of the accident without reduction by percentage of causal negligence, if any, that you attributed to any party: $500,000.00
WILLIAM M. GOERTEL_

After the jury returned its verdict, the defendants moved that the verdict be molded in their favor. The trial court did so. That is, because the jury found the plaintiff to be 90% responsible, with 10% to the defendant, the plaintiff could recover nothing, under the Comparative Negligence Statute.

After the filing of exceptions, the court granted a new trial because of the answers to questions 2 and 5 of the verdict form. The jury indicated in its answer to question 2 that the defendant’s negligence was not a substantial factor in the injuries incurred by the plaintiff. The Court had instructed the jury that the plaintiff had the burden to convince them that the defendant acted negligently, and, then, that the negligence was a substantial contributing factor in bringing about the plaintiff’s injuries.

“This is what the law recognizes as legal cause and a substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or a fanciful factor or a factor having no connection or only an insignificant connection with the accident.”

Then, the trial court explained the comparative negligence law to the jury which they were to apply if they determined that plaintiff himself was negligent.

Under this Act, if you find that the defendant was causally negligent and you find that the plaintiff was also causally negligent, it will then be your duty to apportion the relative degree of causal negligence between the defendant and the plaintiff.
Now, in arriving at a result that is fair and reasonable, under the facts of this accident, you will have to make that apportionment. If you find that the plaintiffs causal negligence was greater than the causal negligence of the defendants, then the plaintiff is barred from recovery and you need not consider what damages should be awarded, but if you find that the plaintiffs causal negligence was equal to or less than the causal negligence of the defendant, then you must set forth the percentages of causal negligence that is (sic) attributable to the defendant and the total of these percentages must be a hundred per cent. You will then determine the total of the amount of damages to which the plaintiff would be entitled if he had not been contributorily negligent and, in other words, in finding the amount of damages, you do not consider the degree of the plaintiffs fault. After you return the verdict, the court will reduce the amount of damages you have found in proportion to the amount of the causal negligence, which you have attributed to the plaintiff.

The court decided that since the jury answered that defendant’s negligence was not a substantial factor of plaintiff’s injuries, which ordinarily means the defendant’s negligence was not a proximate cause of plaintiff’s injuries, yet attributed 10% negligence to defendant, that the jury “exhibited its confusion with the issue of probable cause.” Of course, plaintiff argues that by assessing the 10% to defendant, the jury nullified question 2 and indicated that it thought that defendant’s negligence was indeed a substantial factor in bringing about his injuries. However, our review of the record convinces us that the result which the court originally ordered in molding the verdict for the defendant was the intention of the jury. We find that a new trial is unnecessary.

Although the award of a new trial is in the province of the lower court, it is not an absolute prerogative. The appellate court will review a grant or denial for abuse of discretion, (cits, om.)
It is firmly established that strict form is not required in a verdict. It is essential, however, that a jury’s intention be free of ambiguity and clearly understood. Palmer v. Foss Motors, Inc., 458 Pa. 535, 327 A.2d 80 (1974). When a jury reaches an ambiguous or improper verdict, one proper remedy is to permit them to correct the mistake or ambiguity. Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625 (1960); Anstine v. Pennsylvania Railroad Co., 342 Pa. 423, 20 A.2d 774 (1941). Pniewski v. Kunda, 237 Pa.Superior Ct. 438, 352 A.2d 462 (1975). Moreover, if a verdict shows confusion and lack of understanding of the issues involved, a new trial may be granted. Keeler v. Bair, 407 Pa. 335, 180 A.2d 914 (1962). Verdicts which are not technically correct in form, but which manifest a clear intent on the part of the jury, may be corrected without resort to further jury deliberations or a new trial. Palmer v. Foss, supra; Hornak v. Pittsburgh Railways Co., 433 Pa. 169, 249 A.2d 312 (1969).
Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Superior Ct. 208, 211-212, 380 A.2d 451, 453 (1977).

We do not feel that the record discloses a substantial degree of uncertainty and confusion in the minds of the jury. We base our interpretation of the jury’s findings on a consideration of the verdict form as a whole. As it concerns the defendant, the form indicates that she was negligent, but that her negligence was not a substantial factor of plaintiff’s injuries. It also indicates that the jury felt her negligence was only in the amount of 10% liability. Under the Comparative Negligence Statute, this constitutes a verdict for the defendant, since the jury determined plaintiff’s negligence to be greater than that of defendant: ninety per cent (90%). A polling of the jury revealed their unanimous determination that plaintiff was 90% negligent and that defendant was 10% negligent. It seems to us that the jurors’ response to question 2 that defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries only serves to buttress the 90-10% allocation of liability. We find this to be so especially in light of the fact that even if question 2 were answered in the affirmative which on the surface would indicate that the jury did understand the concept of “proximate cause,” that the result would be the same. And this is where the trial court perceived confusion on the part of the jury.

As our Supreme Court said in Palmer v. Foss Motors, Inc., supra,

“... we cannot become so enmeshed in language that we ignore the clear expression of a conscientious lay jury. The record demonstrates without question that they exerted every effort to perform their duties in accordance with the instructions given and to convey to the court and litigants with all the clarity they could summon the results of the deliberations. No more can be reasonably required for those not trained in the law. Nor can we discard their diligent effort because of an asserted lack of precision in legal expression.”
Id., 458 Pa. at 544, 327 A.2d at 85.

Our review of the record persuades us that the intent of the jury was to find that the defendant was not liable for the injuries suffered by plaintiff, but that his own behavior caused them.

Therefore, because we find that the grant of a new trial was error, we reverse the order of the trial court and reinstate the jury verdict for the defendant. We remand with the direction that judgment for the defendant, Tommi Sue Muth, be entered. We make no restrictions on plaintiffs right to appeal from that judgment on asserted error other than that disposed of in the present appeal.

      . An order awarding a new trial is one from which an appeal lies. Palmer v. Foss Motors, Inc., 458 Pa. 535, 327 A.2d 80 (1974).

      . 42 Pa.C.S.A. § 7102(a)
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

      . We are concerned in this appeal with the two parties who were driving. They will be referred to as plaintiff and defendant, in order to avoid confusion.

      . The court en banc states in its opinion that now in hindsight it realized that the jury should have been instructed to return to the courtroom if their answer to #2 was "no”. However, in Hilbert v. Katz, 309 Pa.Superior Ct. 466, 455 A.2d 704 (1983) (per curiam, with two judges concurring in the result) the same verdict form was given to the jury in another motor vehicle trespass case. The jury was instructed on the form to return to the courtroom if their answer to #2 was in the negative. This they did and the trial court granted a new trial. “Hindsight instructs us that the jury should have been instructed to answer the remaining interrogatories.” We note that confusion may arise whether or not the jury returns to the courtroom after a finding that the defendant’s negligence was not a substantial factor in bringing about a plaintiffs injuries. Our court reversed the grant of a new trial in Hilbert v. Katz, on two grounds; first, “Uncertainty as to the underlying reason for the jury’s verdict (the position taken on the trial court’s order) is not a valid reason for granting a new trial,” and because the jury’s finding was not contrary to the weight of the evidence.

      . The jury in this case probably understood “substantial" factor as meaning "predominant” or "overriding" factor, rather than in its legal meaning as explained by the court in its instructions.


author: HESTER, Judge: WIEAND, Judge,

text:
    480 A.2d 307
    COMMONWEALTH of Pennsylvania v. Edward L. GOCHENAUR, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1984.
    Filed Aug. 10, 1984.

      Penn B. Glazier, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before BROSKY, WIEAND and HESTER, JJ.
   HESTER, Judge:

On November 9, 1981, appellant, Edward L. Gochenaur, Jr., pled nolo contendere to terroristic threats and to two unrelated charges of theft in the Court of Common Pleas of Lancaster County, Pennsylvania. Appellant was sentenced to concurrent terms of imprisonment of not less than time served nor more than twenty-three months on the terroristic threats bill and one theft bill. A one-year period of probation was imposed on the remaining theft bill. With credit given for time served, appellant was released on parole at the imposition of sentence. As a condition of parole, the court instructed appellant to avoid contact with the victim, Doris Glouner.

On December 8, 1981, appellant was charged with simple assault. A prima facie case on this charge was established against him on December 22, 1981. Also, on November 10, 16 and 17, 1981, appellant telephoned Doris Glouner, a further act in violation of his parole. Due to the pending simple assault charges and the telephone calls to Ms. Glouner, a capias was issued on December 9, 1981 to commit appellant to Lancaster County Prison as parole revocation proceedings were instituted.

Following a Gagnon I hearing on March 15, 1982, appellant was detained for a parole revocation hearing on April 2, 1982. Appellant was there found to be in violation of his parole; consequently, parole was revoked and appellant was sentenced to serve the unexpired balance of each sentence imposed on November 9, 1981.

Appellant’s motion to modify the sentence was denied April 21, 1982. This appeal was taken from that Order.

Appellant first contends that the Commonwealth did not prove a violation of the conditions of his parole by a preponderance of the evidence. Doris Glouner testified at the parole revocation hearing that she knew appellant for two years prior to November, 1981, and spoke to him over the telephone every week for one year prior to that time. She further testified that on November 10, 1981, her telephone rang on approximately eight occasions. Following her answer, the caller did not speak; Ms. Glouner heard breathing only. On the final call of that date, the caller uttered, “You’re dead.” Ms. Glouner identified the voice as appellant’s. On November 16 and 17, 1981, her phone rang incessantly. Each time Ms. Glouner answered she received no intelligible response; only the caller’s breathing was audible. Appellant is of the opinion that the two words uttered by the caller on November 10, 1981 and the numerous calls when only breathing was heard are not sufficient to support Ms. Glouner’s identification.

Appellant also claims that a violation of his parole was not proven by a preponderance of the evidence inasmuch as the victim of the simple assault did not testify at the revocation hearing. According to appellant, no reason was given for the victim’s failure to appear. The victim’s absence allegedly deprived appellant of the opportunity to examine the victim concerning a letter which she wrote to appellant’s mother. Appellant contends that this letter damaged the testimony given by the victim at the preliminary hearing.

The Commonwealth’s burden at a parole revocation hearing is less onerous than that which it assumes at trial. A parole violation is proven by a preponderance of the evidence. Commonwealth v. Del Conte, 277 Pa. Super. 296, 419 A.2d 780 (1980); Commonwealth v. Lipton, 238 Pa.Super. 124, 352 A.2d 521 (1975). This lighter burden of proof reflects the policy of a parole revocation hearing whereby the emphasis is whether parole is an effective tool to promote rehabilitation and deter “future antisocial conduct.” Commonwealth v. Kates, 452 Pa. 102, 115: 305 A.2d 701, 708 (1973). In Kates, our Pennsylvania Supreme Court applied statutory law, constitutional law and policy considerations to conclude that the revocation of parole is proper prior to trial on those charges constituting the parole violation. Here, the arresting officer in the simple assault proceedings testified at the revocation hearing that appellant was bound for court on the simple assault charge on December 22, 1981. Appellant corroborated this. In light of Kates, the prima facie evidence of simple assault proved a violation by a preponderance of the evidence. The absence of the simple assault victim from the revocation hearing affected the weight of the Commonwealth’s evidence. It did not, however, require a reversal of the order revoking parole.

Appellant’s interpretation of Commonwealth v. Maye, 270 Pa. Super. 406, 411 A.2d 783 (1979), is incorrect. The Maye court did not create for appellant the absolute right to confront the simple assault victim at the revocation hearing. Instead, it espouses his right to confront adverse witnesses excluded from the hearing, yet whose statements are introduced as hearsay evidence. Here, where a prima facie case of simple assault is incontrovertible, we do not believe that Maye can be extended to guarantee appellant an opportunity to cross-examine the simple assault victim.

Moreover, despite the few words spoken by appellant, Ms. Glouner identified appellant’s voice without reservation. In light of our limited scope of review and the Commonwealth’s light burden of proof in revocation proceedings, we will not question the lower court’s assessment of Ms. Glouner’s credibility. Violation of parole conditions, then, was found in two instances: 1) the prima facie finding of simple assault, and 2) appellant’s contacting Ms. Glouner. Either justified the revocation of parole.

Next, appellant argues that the parole revocation hearing was not promptly held as required by Pa.R.Crim.P. 1409. Rule 1409 provides, in pertinent part, as follows:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.

This requirement of a speedy revocation hearing is a codification of our courts’ pronouncements that revocation hearings must be held with “reasonable promptness” after a probation officer is chargeable with knowing that probation has been violated. Commonwealth v. Williams, 254 Pa.Super. 202, 385 A.2d 979 (1978); Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). Whether the revocation hearing is held with “reasonable promptness” is determined by the facts and circumstances of the matter at hand. A three-part analysis is institutued: the length of the delay, the reasons for the delay and the prejudice imposed by the delay on the defendant. Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979): Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978); Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977).

The delay, sub judice, roughly covered a four-month period from the filing of a simple assault charge on December 8, 1981, and a five-month period from the time Ms. Glouner received the phone calls. Our courts have found lengthier periods, commencing with conviction of the crime for which parole was revoked and terminating with a revocation hearing, to be reasonable. See Commonwealth v. Williams, supra (5½ months); Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977) (6½ months).

The Commonwealth obtained a capias one day following appellant’s arrest for simple assault and one month following the first harassing phone call to Ms. Glouner. A Gagnon I hearing was held three months later while a Gagnon II hearing occurred two and one-half weeks following the Gagnon I hearing. Although the reasons for this passage of time are not of record, we do not attribute it to prosecutorial dilatoriness. First, the revocation proceedings were completed prior to trial on the simple assault charges. As discussed above, longer passages of time, commencing with conviction of the parole-revoking crime, have been held reasonable. Secondly, we are disinclined to refer to this hiatus as a delay; rather, it appears to be a normal progression of criminal proceedings.

It is appellant’s contention that the third part of the tripartite test was not satisfied insofar as the “delay” weakened the testimony of his alibi witnesses. Two witnesses testified that they were with appellant from early morning on November 10, 1981, and throughout that day and evening. They were unaware of any continual phone calls made by appellant to Ms. Glouner. Appellant’s position that their testimony was undermined by the “delay” was not developed beyond the statement that “their testimony was not as secure as it would have been if the violation would have been brought sooner or would have been brought closer to the time of the alleged calls.” Without more, we fail to see the prejudice which appellant believes he suffered.

Also, appellant seeks a reversal of the Order revoking his parole on grounds that counsel was ineffective. The following five grounds are proposed illustrations of counsel’s ineffectiveness:

1) Counsel inadequately cross-examined appellant’s probation officer on the timeliness of the capias.
2) Counsel failed to develop the testimony of appellant’s alibi witnesses.
3) Counsel failed to ask relevant questions concerning his defense.
4) Counsel failed to insist that the simple assault victim testify.
5) Counsel did not use the letter allegedly written by the simple assault victim which would have tainted her testimony.

Following a general discussion of the legal principles upon which a claim of ineffectiveness is constructed, appellant simply enumerates the aforementioned illustrations. He does not expound upon them. Therefore, his ineffectiveness claim was merely an assertion. Mere assertions of ineffectiveness have been summarily dismissed. Commonwealth v. Davis, 318 Pa.Super. 507, 465 A.2d 669 (1983).

Finally, appellant argues that the lower court erred in failing to state its reasons for the particular sentences imposed at the parole revocation hearing. We agree. Pennsylvania Rule of Criminal Procedure 1405 requires the sentencing judge to “state on the record the reasons for sentence imposed.” This requirement applies as well to sentencing proceedings following revocation of parole. Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984); Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981). Our review of the record transcribed at the Gagnon II hearing on April 2, 1982 convinces us that the trial judge inadvertently failed to set forth his reasons for the sentence on the record. Therefore, we are constrained to remand for re-sentencing.

Order reversed and remanded for re-sentencing only. Jurisdiction relinquished.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would affirm the order of the trial court which revoked appellant’s parole and directed that he be recommitted to serve the unexpired portion of the sentence previously imposed.

There are at least three issues which require consideration. It is because I disagree with the majority’s determination of two of these issues that I write in dissent.

I

First, I find myself in disagreement with the majority’s holding that the Commonwealth may prove a violation of parole by showing merely that the parolee was arrested on an assault charge which, after preliminary hearing before a magistrate, was returned to court.

In Commonwealth v. Maye, 270 Pa. Super. 406, 411 A.2d 783 (1979), this Court said:

A parole revocation hearing is not a formal procedure that must be conducted in strict accordance with the entire gamut of evidentiary and procedural rules necessary in a criminal trial. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Rossetti, 255 Pa.Super. 524, 388 A.2d 1090 (1978); Commonwealth v. Tomczak, 252 Pa.Super. 114, 381 A.2d 140 (1977); Commonwealth v. Quinlan, 251 Pa.Super. 428, 380 A.2d 854 (1977). Nonetheless such a hearing must comport with certain minimum due process standards enunciated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Among these requirements is the “right [of the probationer] to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);____” Id. at 489, 92 S.Ct. at 2604. We have noted the necessity for this type of confrontation on several previous occasions. See Commonwealth v. Rossetti, supra; Commonwealth v. Riley, 253 Pa.Super. 260, 384 A.2d 1333 (1978); Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675 (1975); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975).

Id., 270 Pa.Superior Ct. at 410, 411 A.2d at 785.

In the instant case there was no evidence that appellant had been convicted or that he had in fact committed an assault. Neither appellant’s arrest for assault nor the testimony of the arresting officer and appellant’s parole officer that a prima facie case had been found by the magistrate was adequate, without more, to warrant a revocation of appellant’s parole. If arrest alone were an adequate basis for revoking parole, a parolee’s continuation in that status would be wholly dependent on the discretion of the police. This is not the law. Evidence of an arrest on a new charge, without more, cannot be an adequate basis on which a court may revoke parole and recommit the parolee.

A magisterial determination that a prima facie case exists may be used in lieu of a Gagnon I hearing to show probable cause. See: Commonwealth v. Griggs, 314 Pa.Super. 407, 409 n.1, 461 A.2d 221, 222 n.1 (1983); Commonwealth v. Del Conte, 277 Pa.Super. 296, 298 n.2, 419 A.2d 780, 781 n.2 (1980). Standing alone, however, a magisterial finding of prima facie evidence will not support a revocation of parole during or following a Gagnon II hearing. Until there has been a conviction, an arrest is at best a technical violation. Commonwealth v. Greenlee, 263 Pa.Super. 477, 484 n.6, 398 A.2d 676, 679 n.6 (1979). See: Commonwealth v. Michenfelder, 268 Pa.Super. 424, 426 n.1, 408 A.2d 860, 861 n.1 (1979). Mere evidence of arrest, without substantive evidence that the parolee committed an offense, did not in this case support an order revoking appellant’s parole and directing his recommitment to serve the unexpired portion of his sentence.

II

The revocation of parole, however, was supported by other evidence. A prisoner released on parole prior to the expiration of his maximum sentence gains freedom only conditionally. Parole may be revoked upon a showing, by a preponderance of the evidence, that parole no longer serves as an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct by the parolee.

Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (probation revocation). It is a course of conduct by the parolee which reveals that parole is no longer an appropriate alternative.

Appellant in this case was found to have violated a special condition of parole imposed by the court, i.e., that he refrain from contacting Doris Glouner, the victim of the offense of terroristic threats to which appellant had pleaded nolo contendere. At the parole revocation hearing, the Commonwealth introduced evidence sufficient to prove, by a preponderance of the evidence, that appellant had violated this condition of parole by telephoning and harassing Ms. Glouner. Therefore, without regard to whether an assault had been committed by appellant during his parole, the evidence was sufficient to show a violation of the conditions of parole. Where there is a valid, independent basis for the revocation of parole, irregularities with respect to alternative reasons are of no moment. See: Donell v. Penna. Board of Probation and Parole, 70 Pa.Cmwlth.Ct. 265, 270, 453 A.2d 36, 39 (1982).

Ill

When appellant’s sentence was initially imposed, he was sentenced to prison for not less than time served nor more than twenty-three months. Appellant did not thereafter file a motion to modify his sentence. Similarly, he did not appeal. He demonstrated that he was satisfied with the sentence which the court had imposed; and, therefore, he did not complain that the court had failed to place on the record adequate reasons for the sentence imposed. Any inadequacies in the court’s reasons for the sentence, therefore, were waived. Commonwealth v. Stetler, 494 Pa. 551, 565, 431 A.2d 992, 999 (1981).

After parole had been revoked, the court did not impose a new sentence. It merely recommitted appellant to serve that portion of the original sentence which appellant had not then served. Because this was not a new sentence, there was no requirement and no reason that I can discern for requiring a new statement of reasons for the sentence. Moreover, because the issue of the adequacy of the reasons for the initial sentence was waived, appellant should not now be entitled to a remand for resentencing.

I would affirm the order of the trial court which revoked appellant’s parole and recommitted him to serve the unexpired portion of his sentence.

      . I note, but express disagreement with the decision of a panel of this Court which concluded otherwise in Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984). I am unable to comprehend any valid reason for, and certainly no rule requires, a redundant statement of reasons for a sentence in an order revoking parole. Moreover, I am unable to comprehend any good reason for imposing upon a court a burden which does not have application to revocation of parole in more serious cases by the Pennsylvania Board of Probation and Parole. The statement of reasons for the sentence must be placed on the record by the court when sentence is imposed, not when parole is revoked. See: Pa.R.Crim.P. 1405. Parole revocation is not a new sentence; it depends upon a finding by the court that a violation of parole has occurred of sufficient import to show that parole has not been effective and has failed to achieve its intended purpose. The consequence of a parole violation is service of the sentence initially imposed.


author: HESTER, Judge:

text:
    480 A.2d 313
    COMMONWEALTH of Pennsylvania v. Randy HEALEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 17, 1984.
    Filed Aug. 10, 1984.

      Leonard I. Sharon, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence entered June 11, 1982 in the Court of Common Pleas of Allegheny County.

On December 16, 1980, a search warrant was issued for appellant’s residence at 5819 Wellesley Avenue, Pittsburgh, to enable Pittsburgh Police detectives to seize cocaine, marijuana, and instruments used to package and administer these drugs. The probable cause section of the warrant included evidence of the detective’s reasonable belief that the above-mentioned drugs were in the appellant’s possession at his apartment, stating that:

The affiant detective received the following information from a reliable and confidential source. This source states that within the past 48 hours the informant and an acquaintance were in the above described residence of Randy Healy [sic] and did observe Randy and an unknown white male weighing a white powder which Randy stated was good coke “cocaine.” After weighing out approx, an ounce, the unk. white male then gave Randy a large sum of U.S. currency for the cocaine. The informant also observed Randy packaging cocaine into gram lots which Randy stated were for street distribution. The informant’s acquaintance did purchase a gram of cocaine from Randy for $120.00. This incident all took place after 10 p.m. and Randy stated that the best time to buy off of him was after 10 p.m. for this is when he deals. A check with the ID section revealed that Randy Healy [sic] has a prior arrest for VUFA, and the informant stated that Randy has several guns in the apt. which the informant did observe within the past 48 hours. Informant has proven to be reliable by giving information which has led to the arrest and conviction of Jerome Gerber on 2-1-75 and Gary Kelly in 1975. Both actors were arrested for controlled substances and convicted of same.

Structured upon the above, a magistrate found that probable cause existed for a search of appellant’s apartment.

At approximately 7:30 p.m. on December 16, 1980, four Pittsburgh police officers went to appellant’s apartment. Upon arrival, they found appellant standing in front of his apartment building loading various articles into the trunk of his car. Detective Richard Barrett then approached appellant, identified himself, and informed appellant that he had a search warrant for his apartment. Appellant requested to see the warrant and Detective Barrett complied, whereupon the four detectives accompanied appellant to his apartment. Once inside, the detectives seized 1,108.51 grams of marijuana, 12.945 grams of cocaine, certain items used to cut and free-base cocaine, a gun, and $3,075.00. As soon as these items were discovered, the detectives placed both appellant and his wife under arrest and advised them of their Miranda rights. Appellant, at this time, made a statement to the detectives that the contraband was strictly his and not his wife’s.

Appellant attempted to suppress the incriminating evidence based upon the allegation that the confidential informant was not reliable due to the fact that the informant had last provided information to the police in 1975. Appellant specifically contends that the period between his prior assistance to the police which led to two arrests and convictions in 1975 and his information in the present case renders the informant unreliable.

Appellant’s suppression motion was denied and he proceeded to trial where he was found guilty of two counts of possession of a controlled substance and two counts of possession with intent to deliver a controlled substance. Subsequently, appellant’s Motion for a New Trial and/or Arrest of Judgment was denied and the court sentenced appellant to a period of incarceration of eleven and one-half to twenty-three months.

Appellant’s sole issue on appeal is whether the confidential informant satisfied the reliability requirement of probable cause in that the informant had last supplied information to the police in 1975, approximately five and one-half years prior to this incident. The United States Supreme Court recently enunciated the new standard to be applied in determining whether sufficient probable cause is present for the issuance of a warrant:

For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar [v. State of Tex., 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ] and Spinelli [v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)]. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States [362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ]; United States v. Ventresca [380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)]; Brinegar v. United States [338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ]. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 80 S.Ct. at 736. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. (footnote omitted).

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). The Supreme Court also held in Illinois v. Gates, supra, that “reliability” and “basis of knowledge” should not be understood as separate and independent requirements but, rather, as “closely intertwined issues that may usefully illuminate the common sense, practical question whether there is 'probable cause’ to believe that contraband or evidence is located in a particular place.” Gates, supra at 230, 103 S.Ct. at 2328. This standard has been recently adopted by this Court to be applied retroactively. See Commonwealth v. Ensminger, 325 Pa.Super. 376, 473 A.2d 116 (1984); Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1983); Commonwealth v. Moore, 221 Pa.Super. 1, 467 A.2d 862 (1983); Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983).

In the present case, the facts that appeared on the search warrant for the informant’s “basis of knowledge” are as follows: the informant and a companion within forty-eight hours of the application of the search warrant had been in appellant’s apartment and had witnessed the sale by appellant of cocaine to two individuals. Also, the informant stated that appellant told him that the best time to purchase drugs from him was after 10:00 p.m. Further, appellant had several firearms in his possession and it had been noted that appellant had a prior arrest for a firearms violation.

Appellant relies heavily on his analysis of the Aguilar and Spinelli decisions. As previously noted, the new standard for the determination of probable cause is a practical, common sense approach to determine whether, given all the circumstances set forth in the affidavit before the magistrate, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.” Gates, supra 462 U.S. at 238-239, 103 S.Ct. at 2332.

However, even if Aguilar and Spinelli remained the standard for determining probable cause, we believe that a passage of five years does not render an informant unreliable. As an illustration of this fact, we create the following scenario: if a person were told five years ago by an individual who was associated with the criminal element that he was going to be assaulted and the assault in fact occurred, it is likely that if similar information were received from the same source five years later including the exact time and location, this information would be considered reliable. We submit that the manner by which appellant may attempt to prove the informant unreliable is to inquire of the police officer making the application for the search warrant, whether the informant, within the five year period which has elapsed since his last rendering reliable information, has given unreliable information to the police.

We find that, based upon the information supplied in the probable cause section of the application for the search warrant, this information satisfies the “totality of the circumstances” standard enunciated in Illinois v. Gates, supra, as well as the stricter Aguilar-Spinelli test. See Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984).

Judgment of sentence affirmed.


author: WICKERSHAM, Judge:

text:
    480 A.2d 316
    Doris J. MUMMA, Administratrix of the Estate of William R. Mumma, Deceased, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed Aug. 17, 1984.

      Lee C. Swartz, Harrisburg, for appellant.
    Jeffrey E. Piccola, Harrisburg, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Dauphin County sustaining the Pennsylvania Assigned Claims Plan’s preliminary objections and dismissing appellant’s complaint.

On January 8, 1976, William R. Mumma suffered serious injuries in an accident while driving his employer’s truck in the course of his employment. He died eight days later as a result of these injuries. At the time of the accident, the decedent did not have no-fault motor vehicle insurance. Appellant, Doris J. Mumma, as administratrix of her husband’s estate, obtained survivor loss benefits and funeral expenses from the decedent’s employer’s no-fault insurance carrier. Appellant petitioned for Workmen’s Compensation benefits, which were awarded to her by a referee. The award was affirmed by the Workmen’s Compensation Appeal Board; however, the matter was further appealed to the Commonwealth Court, where it was pending disposition at the time the instant appeal was filed.

On October 21, 1981, appellant filed the complaint in the instant action against appellee Assigned Claims Plan to recover work loss benefits not otherwise compensated by Workmen’s Compensation. The Assigned Claims Plan filed preliminary objections in the nature of a demurrer on May 13, 1982. On October 27, 1982, the lower court sustained the preliminary objections and dismissed appellant’s complaint. The lower court en banc affirmed that order on December 10, 1982. This appeal timely followed.

Appellant presents two issues on appeal:

1. May an uninsured employee-victim or the estate of an uninsured employee-deceased victim recover no-fault basic loss benefits in excess of Workmen’s Compensation payments from the Assigned Claims Plan under Section 204(a)(5) of the No-Fault Motor Vehicle Insurance Act if no other security is applicable?
2. Does the denial of the right of an uninsured employee-victim or the estate of an uninsured employee-deceased victim to recover no-fault basic loss benefits in excess of Workmen’s Compensation payments from the Assigned Claims Plan under Section 204(a)(5) of the No-Fault Motor Vehicle Insurance Act result in the impairment of a constitutional right?

Brief for Appellant at 3.

Appellant argues that the estate of a decedent who did not have his own no-fault insurance policy and who was killed in an accident while driving a vehicle during the course of his employment, is entitled to recover against the Assigned Claims Plan pursuant to section 204(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act. Subsection 204(a)(5) directs individuals such as the decedent, who are not entitled to no-fault benefits under the preceding four (4) sections, to seek recovery from the Pennsylvania Assigned Claims Plan. The Plan is a statutorily created fund designed as a safeguard for unforseen situations in which no carrier which receives premiums is available to respond. 40 P.S. § 1009.108.

In Borrell v. Continental Casualty Company, 310 Pa.Super. 554, 456 A.2d 1074 (1983) we held:

where an employee sustains an injury as the result of a motor vehicle accident while operating his employer’s vehicle during the course of his employment, not owning a motor vehicle and being uninsured, that person may recover no-fault benefits from the Pennsylvania Assigned Claim Plan in excess of the recovery provided by the Workmen’s Compensation Act.

Id., 310 Pa.Super. at 558, 456 A.2d at 1077. In Wagner v. Pennsylvania Assigned Claims Plan, 319 Pa.Super. 410, 466 A.2d 225 (1983), this court applied the Borrell reasoning to a case filed on behalf of the estate of a decedent killed under the same circumstances.

These cases control the instant appeal. Appellant has a potential recovery under section 204(a)(5) of the No-Fault Act. Thus, the lower court erred in sustaining appellee’s preliminary objections and in dismissing appellant’s complaint. Appellant’s complaint should be reinstated.

Order sustaining the preliminary objections and dismissing the complaint is reversed and case remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Section 204(a) provides:
      § 1009.204. Source of basic restoration benefits
      (a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
      (1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
      (2) an insured is the security under which the victim or deceased victim is insured;
      (3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
      (4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
      (5) any other individual is the applicable assigned claims plan.
      Act of July 19, 1974, P.L. 489, No. 176, art. II, § 204, 40 P.S. § 1009.204(a).

      . As a result of our disposition of this case, we need not address appellant's second issue.


text:
    480 A.2d 318
    C. William NYE, Jr., Individually and as Administrator of the Estates of Barbara A. Nye, Deceased, and Karen L. Nye, Deceased, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Carl A. Houtz.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed Aug. 17, 1984.

      Neil J. Rovner, Harrisburg, for appellant.
    George F. Douglas, Jr., Carlisle, for Houtz, appellee.

      Mark Garber, Jr., Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the Order of the Court of Common Pleas of Dauphin County granting a new trial limited to the issue of damages to appellee Carl A. Houtz.

In December of 1978, Karen L. Nye was driving an automobile westbound on Route 322 between Harrisburg, Pennsylvania and Hershey, Pennsylvania with her mother, Barbara Nye, as a passenger. Testimony at trial indicated that appellee Carl Houtz’s reckless driving forced the Nye car off the road and onto a raised medial barrier that divided the east and west-bound lanes of Route 322. Witnesses observed Karen Nye attempting to bring her car back under control and off the medial barrier. Her failure to regain the proper lane resulted in a fatal head-on collision with a vehicle headed east-bound on Route 322.

Appellant C. William Nye, individually and as administrator of the estates of his wife and daughter, brought the instant wrongful death and survivorship action against the appellees, Commonwealth of Pennsylvania, Department of Transportation, and Carl A. Houtz.

At trial, the actuary for plaintiff-appellant Nye testified concerning the loss of wages of Karen Nye caused by her untimely death. His testimony established a gross loss of earnings for the time period between her death and the trial of $37,237.00. The cost of maintenance for this time period was estimated to be $12,643.00. Thus, the total pretrial loss of earnings was $24,594.00.

The actuary then discussed his calculations for future loss of earning capacity. He testified that the gross future wage loss would be $490,401.00. He then subtracted a maintenance cost of $241,105.00, resulting in a future wage loss of $249,296.00. When this figure is added to the pretrial loss, we arrive at a total wage loss figure for Karen Nye of $273,890.00.

At the conclusion of the evidence, the court instructed the jury that appellant could be awarded damages for the pain and suffering experienced by the decedents from the moment of their injury to the moment of death. R.R. at 75a. Appellee objected to this charge on the ground that no evidence was presented that the decedents were conscious at any time between the time of impact and the time they were pronounced dead. The trial judge declined to make any corrections in his charge.

As to the survivorship action brought on behalf of the estate of Karen Nye, the jury returned a verdict of $349,-500.00. Appellee Houtz filed a motion for a new trial on the ground, inter alia, that the jury verdict exceeded the wage loss figure specified by appellant’s actuary by $75,610.00. Appellee contended that this $75,610.00 excess could only be attributed to an improper award of damages for pain and suffering, and that the verdict should be reduced by this sum. In his brief in opposition to appellee’s motion for a new trial, appellant argued that the jury could properly award damages for pain and suffering if it believed Karen Nye was “aware of the impending death as she struggled to bring her car under control back across the medial barrier.” Appellant also contended that the actuarial figures were merely guidelines and that the jury was not bound to accept the amounts arrived at by the actuary.

On February 9, 1983, appellee Houtz’s motion for a new trial was argued before the lower court sitting en banc. On February 16, 1983, the court entered an order indicating that if appellant filed a remittitur in the amount of $75,-610.00 within thirty days, appellee’s motion for a new trial would be dismissed. Appellant failed to file the remittitur in the specified time; therefore, on March 31, 1983, the court entered an order granting a new trial for the purpose of determining damages. This appeal timely followed.

One of appellant’s issues on appeal is:

Where testimony establishes that the decedent automobile driver struggled for a period of time to avoid a head-on collision which killed her and her mother, was the court correct in charging the jury that decedent could recover for emotional distress caused by knowledge of her impending injury?

Brief for Appellant at 3.

The court did not charge the jury that decedent could recover for emotional distress caused by knowledge of her impending injury as appellant suggests. Rather, the court instructed the jury as follows:

The [appellant] is entitled to be awarded such an amount as you believe will fairly and adequately compensate for the mental and physical pain, suffering and inconvenience that the decedents endured from the moment of their injury to moment of death as a result of this accident.

R.R. at 75a (emphasis added).

Thus, the charge dealt with post impact pain and suffering, not pre impact emotional distress as appellant states.

The law in Pennsylvania is clear that where a decedent is killed instantaneously, there can be no recovery for pain and suffering in a survival action. Slavin v. Gardner, 274 Pa.Super. 192, 418 A.2d 361 (1979). See also Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); 11 P.L.E. Death § 63. This rule is obviously based on the proposition that where death is instantaneous the decedent experiences neither pain nor suffering and therefore an award of damages to compensate for pain and suffering would be unwarranted.

The same rule applies where the decedent is not conscious between the time of injury and the time of death. In Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983), this court stated that “[bjecause of the absence of specific findings by the trial court we do not know if the court awarded any amount for conscious pain and suffering.” Id., 309 Pa.Super. at 545, 455 A.2d at 1218 (emphasis added). The opinion then went on to study the testimony to determine whether there was sufficient evidence to support a finding that the decedent was conscious at any time after the accident. In Haddigan v. Harkins, 441 F.2d 844 (3d Cir.1970), decided on Pennsylvania law, the court stated that “[t]he plaintiff was entitled to recover in the survival action damages for decedent’s conscious pain and suffering____” Id. at 850 (emphasis added). In Voelkel v. Bennett, 115 F.2d 102, 104 (3d Cir.1940), also decided on Penn-, sylvania law, the court held that decedent’s personal representative could not recover damages for pain and suffering because the period between the injury to and the death of the decedent was very short and he was unconscious during the entire period. Thus, where the decedent is unconscious for the entire period between the time of injury and the time of death, there can be no recovery for pain and suffering in a survival action.

Instantly, “[n]o testimony was presented showing either Karen L. Nye or her mother were conscious between the time of impact and the time they were pronounced dead.” Lower ct. op. at 2. Since there was no evidence that decedents were conscious at any time after the accident, any award of damages for conscious pain and suffering between the time of injury and the time of death was unwarranted.

Appellant argues, however, that the jury could properly award damages for pain and suffering if it believed Karen Nye was aware of her impending death as she struggled to bring her car under control. Thus, appellant contends that he may recover for Karen’s “pre impact fright.” There is no precedent in Pennsylvania for such an award. “The rule in Pennsylvania is that in survival actions the measure of damages is the decedent’s pain and suffering and loss of gross earning power from the date of injury until death____” Slaseman v. Myers, supra 309 Pa.Super. at 544-45, 455 A.2d at 1217 (emphasis added). Thus, we have always limited recovery to damages for pain and suffering and emotional distress occurring after the time of injury.

Appellant points to a number of federal cases that have permitted recovery for pre impact fright and shock. Solomon v. Warren, 540 F.2d 777 (5th Cir.1976), cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); Platt v. McDonnell Douglas Corp., 554 F.Supp. 360 (E.D.Mich.1983); D’Angelo v. United States, 456 F.Supp. 127 (D.Del.1978), aff’d, 605 F.2d 1194 (3rd Cir.1979); Kozar v. Chesapeake, 320 F.Supp. 335 (W.D.Mich.1970), aff’d 449 F.2d 1238 (6th Cir.1971). Given the facts of this case, however, we need not decide whether such a recovery is permitted in Pennsylvania. Even assuming arguendo that pre impact fright is a recoverable element of damages in this jurisdiction, it is clear that appellant has neither pleaded nor proved a case supporting such an award. In a survival action, the estate may recover the same damages as those to which the decedent would have been entitled had he or she survived. McClinton v. White, 285 Pa.Super. 271, 427 A.2d 218 (1981), vacated on other grounds, 497 Pa. 610, 444 A.2d 85 (1982). If Karen Nye had somehow avoided the accident, she could recover damages based on her emotional distress or “fright” only if she averred and proved that her mental or emotional distress resulted in some type of physical manifestation or harm. Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981). Thus, the estate may recover damages for “pre impact fright” only upon proof that Karen suffered physical harm prior to the impact as a result of her fear of impending death. Appellant presented no such evidence. Thus, even assuming arguendo that Pennsylvania would permit recovery for pre impact fright, we find that appellant failed to meet its burden of proving such damages.

Since any award of damages for pain and suffering was unwarranted under the facts of this case, the trial court erred in instructing the jury that appellant could be awarded such damages. It is well established that a trial court should not instruct the jury on law that is not applicable to the facts of the case. Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984). Instantly, it is not clear whether the jury’s verdict included an award of damages for pain and suffering. Based on the erroneous charge to the jury, however, we recognize that there is a great possibility that a portion of the verdict was based on an improper award for pain and suffering. Thus, we agree with the lower court that a new trial limited to the issue of damages is necessary.

Order affirmed.

      . The jury found that the Department of Transportation was not negligent. Thus, the Commonwealth is not involved in this appeal.

      . We note that in his testimony, the actuary stated that the net future wage loss would be $249,269.00. R.R. at 38a. It is clear, however, that the correct figure is $249,296.00 and that the witness simply transposed the nine and the six when testifying.

      . While appellant’s counsel requested a charge on damages for pre impact fright, the lower court declined to give such an instruction. R.R. at 81a.

      . Because we agree with the lower court that a new trial on the issue of damages is warranted, we find it unnecessary to discuss appellant’s remaining issue which he states as follows:
      In a death case, where the [appellant’s] actuary has testified to several possible levels of maintenance to be deducted from decedent’s gross wage loss, is it entirely within the province of the jury to choose appropriate level of maintenance in order to arrive at net survival loss?
      Brief for Appellant at 3.
      Assuming without deciding that a jury may award damages for wage loss in an amount greater than the maximum loss testified to by the appellant’s actuary, it is nevertheless unclear in this case whether the jury’s award was based solely on wage loss or whether it also included an improper award for pain and suffering. Thus, we feel that it is necessary to return the case to the lower court for a new determination of damages.


author: MONTGOMERY, Judge:

text:
    480 A.2d 322
    VISION SERVICE PLAN OF PENNSYLVANIA, a Not-For-Profit Corporation, v. PENNSYLVANIA AFSCME HEALTH AND WELFARE FUND; Gerald W. McEntee, Trustee; Jesse C. Newcomer, Trustee and Administrator, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1983.
    Filed Aug. 17, 1984.
    Petition for Allowance of Appeal Granted Feb. 20, 1985.

      Jonathan Walters, Pittsburgh, for appellants.
    John J.B. Jones, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The history of this case is set forth in the Opinion which was filed in this matter on April 13,1984, 326 Pa.Super. 474, 474 A.2d 339. Pursuant to our request, and after reconsideration, the lower court has prepared and filed a supplemental opinion, setting forth its conclusion that the Defendant-Appellants’ Preliminary Objections were properly rejected by the Allegheny County Prothonotary as a result of the Appellants’ failure to accompany them with a brief, as required by Allegheny County Administrative Order No. 43. We can discern no error in this holding, which appears to conform literally to Administrative Order No. 43. Accordingly, it is clear, in light of the discussion and conclusions set forth in our earlier Opinion in this case, that the unfiled preliminary objections could not serve as a bar to the entry of a default judgment in favor of the Plaintiff-Appellee.

Although the significant questions relating to the attempted filing of the Appellants’ preliminary objections have been resolved, issues remain to be addressed concerning the Appellants’ subsequently filed petitions to strike, or, in the alternative, to open the default judgment. It is well-established that a petition to strike a judgment is properly granted only when a defect in the original judgment appears on the face of the record. Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981). The decision of the lower court as to whether to grant a petition to open a judgment is based upon equitable considerations. Foerst v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976). A court should open a default judgment only when three conditions have been met: (1) the petition must have been promptly filed; (2) the default which led to the judgment must be satisfactorily explained; and (3) the existence of a meritorious defense to the cause of action must be shown. Kabanow v. Kabanow, 239 Pa.Super. 23, 361 A.2d 721 (1976).

The only arguable basis for the Appellants’ petition to strike was the contention that the judgment was defective because of the Appellee’s alleged failure to file an affidavit of non-military service. We have already rejected that contention. See footnote 3 of our April 13, 1984 Opinion in this case.

With regard to the petition to open, it is first apparent, and uncontested by the Appellee, that the Appellants moved expeditiously to seek to have the judgment opened in this case, having filed their petition within a few days after notification that a judgment had been entered. We therefore direct attention to the second requirement, that the moving party show some reasonable explanation for its failure to file a timely response which would have precluded a default. On that point, we find no basis to disturb the lower court’s rejection of Appellants’ petition to open the judgment.

In their petition to open judgment, the Appellants set forth:

13. Defendants’ failure to timely file its [sic] Preliminary Objections is excusable under the circumstances for the following reasons:
(a) Counsel for Defendants did timely mail Preliminary Objections to the Prothonotary, with a copy to Plaintiff’s counsel.
(b) Defendants had no notice that said Preliminary Objections were not docketed until receipt of the letter from the Prothonotary’s office on November 12, the date said Praecipe for Entry of Default Judgment was filed.
(c) Counsel for Defendants have attempted with reasonable diligence for approximately one year to obtain a copy of the local rules of the Court without success.
(d) Plaintiff has obtained a “snap judgment” in a matter expressly disfavored by the Courts of Pennsylvania.
(e) Plaintiff will not be prejudiced in any way if the default judgment is opened, since the Defendants’ alleged failure to file a timely responsive pleading is a matter of days which in no way affects Plaintiff’s ability to prove its entitlement to judgment on the merits.

It is apparent that none of the grounds asserted would compel the conclusion that the Appellants’ late filing of a response to the Complaint should have been excused.

Examining the Appellants’ assertions seriatim, we first note that the Appellants’ counsel admitted during argument before the lower court that the preliminary objections were not placed in the mail on November 2,1981, as asserted, but were mailed on November 4, 1981, a day after that agreed to by the parties as the last day for filing of Appellants’ response. Next, the fact that Appellants did not receive notice that their preliminary objections were not docketed until they were notified of the entry of the default judgment does not satisfactorily explain their failure to file a timely response, within the extended period agreed to with the Appellee. The third assertion, relating to counsel’s alleged unsuccessful attempts to obtain rules of the Allegheny County Court for approximately one year also cannot be deemed to justify Appellants’ late filing. We must also reject the fourth assertion set forth in the petition to open, as we do not find that the Appellee obtained a “snap” judgment in this case. By the letter from Appellee’s counsel dated October 20, 1981, the Appellants were afforded their appropriate rights under Pennsylvania Rule of Civil Procedure 237.1(a), which was designed to avoid “snap” judgments. We find no such problem here. Compare Safeguard Investment Co. v. Energy Service Associates, Inc., 258 Pa.Super. 512, 393 A.2d 476 (1978). Finally, as to the last point argued, it is obvious that the prejudice or lack thereof to the Appellee is not relevant to the question of whether there is any reasonable basis to explain and excuse the Appellant’s failure to file a timely response. Therefore, it is evident that none of the five arguments advanced by the Appellants to justify their late response has arguable merit.

In the resolution of whether the Appellants established that there was an excuse for their failure to make a timely response, one remaining aspect of this case deserves discussion. Although they assert to our Court that in their petition to open the judgment they did not “address” the question of why their preliminary objections were filed late, we have noted above that this issue was raised in that petition. See the excerpt from the petition set forth above. The Appellee filed a response in which it specifically stated: “Defendant [sic] has no valid legal excuse for failing to timely file a responsive pleading on or before the agreed deadline of November 3, 1981, and/or for failing to request or obtain an extension of time for filing the same.” A show cause hearing was held by the lower court on the petition to open. See and compare Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979), regarding the procedure to be followed. At the hearing, in response to the court’s questions, counsel for Appellants explained that the deadline for a response had been missed because he was busy with other trials and with legal research. He also explained that he had not asked for a further extension of time because he had not had a problem with any opposing counsel as a result of late filings in any other case for the prior three years. For some reason, the Appellants did not place evidence in the record in the form of testimony by any witness at the hearing to support such assertions by counsel. Such evidence could also have been submitted by deposition testimony, as provided in Pennsylvania Rule of Civil Procedure 209, a procedure alluded to by the Appellants in their brief in support of reconsideration filed in the lower court. It is therefore clear that the Appellants failed to present evidence to the lower court which would have allowed it to consider opening the judgment because of the conduct of counsel. On that issue see Peoples National Bank of Susquehanna County v. Hitchcock, 278 Pa.Super. 375, 420 A.2d 589 (1980), and cases cited therein. Because the Appellants have failed to place any evidence in the record liowever, neither the lower court nor our Court would be justified in finding that the conduct of counsel could provide any justification for the Appellants’ failure to respond to the Complaint on a timely basis.

Thus, although default judgments may often be viewed with disfavor, we find no basis in the record in this case to hold that the lower court’s refusal to strike or open the Appellee’s judgment constituted a manifest abuse of discretion or an error of law. Compare Paules v. Sminkey, 290 Pa.Super. 223, 434 A.2d 724 (1981). In view of our conclusion that the lower court did not err in denying the Appellants relief because a sufficient excuse for the failure to timely respond had not been offered, it is unnecessary for us to reach the issue of whether or not the Appellants satisfied their burden of showing a meritorious defense.

The order of the lower court is hereby affirmed.

      . The lower court’s original opinion did not explicitly discuss the court’s reasoning with respect to the three-pronged inquiry appropriate in the consideration of a petition to open a default judgment. However, it is implicit in both the lower court’s disposition of this case, as well as in the general discussion in its opinion, that it discerned no reasonable excuse for the Appellants’ failure to file a timely response to the Appellee’s Complaint.


author: HOFFMAN, Judge:

text:
    480 A.2d 326
    COMMONWEALTH of Pennsylvania v. Norman Fred PENNINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed Aug. 17, 1984.

      Anthony DeDola, Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Com., appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   HOFFMAN, Judge:

In this appeal from the denial of his Post-Conviction Hearing Act (PCHA) petition, appellant challenges the Commonwealth’s subject matter jurisdiction and trial counsel’s effectiveness. We find no merit in appellant’s claims and, accordingly, affirm the lower court’s order.

Appellant was arrested on May 18, 1981 for burglarizing a Fayette County post office, and charged with burglary, theft, criminal mischief and receiving stolen property. Following a jury trial commencing on August 5, 1981, appellant was found guilty of burglary and theft, and not guilty of criminal mischief; the receiving stolen property charge was nolle prossed. He was subsequently sentenced to a term of imprisonment of eleven-and-one-half-to-twenty-three months. Trial counsel filed post-verdict motions but they were later withdrawn with appellant’s signed consent. Appellant thereafter filed a pro se PCHA petition which, after the appointment of counsel, was denied by the lower court, prompting this appeal.

Appellant contends first that the Commonwealth did not have subject matter jurisdiction over a crime committed in a United States post office. In this instance, we disagree. 74 P.S. § 1 provides, in pertinent part:

The jurisdiction of this State is hereby ceded to the United States of America over all such pieces or parcels of land, ... within the limits of this State, as have been or shall hereafter be selected and acquired by the United States for the purpose of erecting post offices ..., exclusively owned by the general government, and used for its purposes____

(Emphasis added). In Commonwealth v. Mangum, 231 Pa.Superior Ct. 162, 332 A.2d 467 (1974), this Court determined that, although under 74 P.S. § 1, the Commonwealth has no jurisdiction over crimes committed in most federal buildings, the pivotal question is “whether the post office in which appellant was arrested was ‘exclusively owned by the general government, and used for its purposes,’ or otherwise met the conditions of the Act.” Id., 231 Pa.Superior Ct. at 165, 332 A.2d at 468. In Mangum, the record was remanded for a determination of the nature of the post office in question. Here, however, the record clearly reveals that the Leckrone, Fayette County post office is privately owned and merely leased by the federal government. Accordingly, the building is not “exclusively owned by the general government,” 74 P.S. § 1, and the Commonwealth may, therefore, take jurisdiction of a crime occurring therein.

Appellant’s remaining contentions, that counsel was ineffective for failing (1) to request a mistrial upon learning that one juror may have been prejudiced against appellant; (2) to ask for a continuance when certain alibi witnesses did not appear; and (3) to object to the introduction of perjured testimony, have been adequately addressed in and disposed of by the lower court’s opinion.

Affirmed.

       The question of subject matter jurisdiction cannot be waived. See Commonwealth v. Mangum, 231 Pa.Superior Ct. 162, 164, 332 A.2d 467, 468 (1974).