author: McEWEN, Judge:

text:
    469 A.2d 216
    Frank LAZZAROTTI and Norma Lazzarotti, v. John J. JULIANO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1983.
    Filed Nov. 25, 1983.

      Neil H. Stein, Philadelphia, for appellant.

      Joseph Thomas Mattson, Upper Darby, for appellees.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   McEWEN, Judge:

Appellant, John J. Juliano, seeks review of an order dismissing a petition to open a judgment confessed against him by appellees, Frank and Norman Lazzarotti. We affirm the order of the venerable Judge John V. Diggins which dismissed the petition to open due to the failure by appellant to produce any evidence of a meritorious defense requiring submission of the issues to a jury.

Appellees filed a complaint in confession of judgment against appellant on September 22, 1980, pursuant to a $7,000.00 judgment note signed by appellant on September 13, 1973. See Pa.R.C.P. 2951(b). Judgment was thereupon entered against appellant in the sum of $11,270.00. Notice of the entry of the judgment was given to appellant pursuant to Pa.R.C.P. 236. Appellant filed a petition to open the judgment on June 9, 1981. The petition filed by appellant sought to raise the following defenses to the judgment:

“a) the said action is barred by the applicable statute of limitations ... as said action was based on an alleged note dated September 13, 1973.
b) that any monies given were given as gifts.
c) that in any possible event, petitioner’s wife is equally liable.
d) that in any possible event there has been accord and satisfaction.”

Appellees filed an answer to the petition on June 23, 1981, and, inter alia, denied as conclusions of law the defenses asserted by appellant. No further action was taken by any of the parties until April 16, 1982, when counsel for appellees caused the matter to be listed for argument. Counsel for appellant stated at the hearing on the petition to open that the matter was listed as a result of an agreement between himself and counsel for appellees. Argument on the petition was held on May 17, 1982, and in response to a request by the hearing judge to proceed with the evidence in support of the petition, counsel for appellant stated that he intended to “rely on our petition which sets out the facts as they are stated.” N.T. at 6. When informed by Judge Diggins that he could not rely solely on the averments of the petition which had been denied by the answer filed by appellees, counsel stated that he was appearing for another attorney from his office, was unaware of the fact that an answer had been filed and was not prepared to present any evidence in support of the petition. Judge Diggins then dismissed the petition to open.

“[0]ur scope of review on appeals from the lower court’s grant or denial of a petition to open judgment is very narrow. A petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court’s discretion in either opening or refusing to open a judgment taken by confession, will not be disturbed on appeal unless the lower court has committed a manifest abuse of discretion or an error of law.” Lincoln Bank v. Kelly, 282 Pa.Super. 261, 267-268, 422 A.2d 1106, 1109 (1980). Accord Scott v. 1523 Walnut Corporation, 301 Pa.Super. 248, 252, 447 A.2d 951, 952 (1982); First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 191, 438 A.2d 600, 602 (1981). The party seeking to open a confessed judgment must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. Young v. Pileggi, 309 Pa.Super. 565, 568, 455 A.2d 1228, 1229-1230 (1983); Weitzman v. Ulan, 304 Pa.Super. 204, 209, 450 A.2d 173, 176 (1982); Van Brakle v. Lanauze, 293 Pa.Super. 276, 278, 438 A.2d 992, 993 (1981); First National Bank of Pennsylvania v. Cole, 291 Pa.Super. 391, 393, 435 A.2d 1283, 1284 (1981).

Appellant argues on appeal that the court erred in dismissing the petition to open without first ordering the parties to proceed with the production of evidence under Pa.R.C.P. 209. We disagree. It is well settled that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa.Super. 526, 529, 456 A.2d 1060, 1062 (1983); Hutchings v. Trent, 304 Pa.Super. 376, 380, 450 A.2d 729, 731 (1982); Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 160, 450 A.2d 149, 151 (1982). Pa.R.C.P. 209 provides the procedure for establishing such proof. Pursuant to Rule 209, the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer. Triffin v. Thomas, 316 Pa.Super. 273, 276, 462 A.2d 1346, 1348 (1983); Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa.Super. at 530, 456 A.2d at 1063; Bell v. Jefferson Republican Club, supra 304 Pa.Super. at 160, 450 A.2d at 151. While the court itself may set a timetable for the taking of depositions and for decision on the petition, there is no requirement that the court do so. See Triffin v. Thomas, supra 316 Pa.Super. at 280, n. 4, 462 A.2d at 1350 n. 4; Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 138 n. 5, 403 A.2d 577, 581 n. 5 (1979). Appellant misapprehends the holdings of this Court in Triffin v. Thomas, supra; Philadelphia City Employees Federal Credit Union v. Bryant, supra; Hutchings v. Trent, supra; Bell v. Jefferson Republican Club, supra; Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981); Shainline v. Alberti Builders, Inc., supra; and Instapak Corp. v. S. Weisbrod Lamp & Shade Co., Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977). In each of these cases remand for proceedings pursuant to Pa.R.C.P. 209 was required because the judge acted prematurely on the petition and answer before either the petitioner or respondent had taken any action under Rule 209 or listed the cause for argument. Remand is not required where either the petitioner or respondent lists the case for argument on the basis of the petition and answer alone. See Teodori v. Werner, 490 Pa. 58, 415 A.2d 31 (1980); Silvestri v. Kinest, 318 Pa.Super. 14, 464 A.2d 494 (1983). See also Bensalem Township v. Terry, 317 Pa.Super. 380, 384-385, 464 A.2d 371, 374 (1983). The argument that the hearing judge erred in failing to order the parties to proceed under Rule 209 is, therefore, meritless.

If the petitioner, who bears the burden of supporting his allegations of fact by depositions, is ruled to proceed and fails to either take depositions or order the cause for argument on the petition and answer, or himself orders the cause for argument on the petition and answer, the factual allegations of the respondent will be taken as true. Owens v. McCurdy, 304 Pa.Super. 510, 512, 450 A.2d 1028, 1030 (1982); Pa.R.C.P. 209. Conversely, if the respondent lists the cause for argument on the basis of the petition and answer alone, all of the factual averments contained in the petition must be taken as true. Teodori v. Werner, supra 490 Pa. at 63, 415 A.2d at 33; 1 Goodrich-Amram 2d § 209:2 at p. 122.

In the instant case counsel for the respondents caused the matter to be listed for argument. Ignoring for the purposes of this opinion the fact that counsel did so pursuant to an agreement with counsel for appellant and disregarding the statement of counsel for appellant that he intended to rely solely on the petition, only the factual allegations contained in the petition to open may be deemed admitted. Teodori v. Werner, supra, 490 Pa. at 63, 415 A.2d at 33. Appellant, however, did not include any factual allegations relevant to his alleged defenses in his petition to open. Rather, his defenses to the judgment were presented as conclusions of law. Such conclusions of law may not be deemed as admissions of facts in issue. Estate of Roos, 305 Pa.Super. 86, 98, 451 A.2d 255, 261 (1982). See also Landis v. City of Philadelphia, 245 Pa.Super. 514, 518, 369 A.2d 746, 748 (1976); Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 450, 346 A.2d 798, 800 (1975); Pa.R.C.P. 1029(a).

The bare allegation by appellant in his petition to open that an action on the judgment note was barred by the statute of limitations was a conclusion of law which was not admitted by the listing of the cause for argument by appellees. Moreover, the statute of limitations as pleaded by appellant was not a meritorious defense to the judgment. At the time of the filing of the complaint in confession of judgment, section 5527 of the Judicial Code, 42 Pa.C.S. § 5527, provided, inter alia:

“The following actions and proceedings must be commenced within six years:
1) ....
2) An action upon a contract, obligation or liability founded upon a bond, note or other instrument in writing, except an action subject to another limitation specified in this sub-chapter. Where an instrument is payable upon demand, the time within which an action or proceeding on it must be commenced shall be computed from the later of either demand or any payment of principal or of interest on the instrument.”

Appellant averred in his petition that an action upon the note was barred by the statute of limitations because it had been executed on September 13, 1973. The note was payable on demand and appellant did not aver that any demand for payment had occurred nor did he aver that he had made any payment of principal or interest on the note. The statute of limitations on a demand note does not begin to run until demand or a payment on principal or interest is made or until judgment is entered on the debt. The averment of appellant that the action was barred as a result of the note having been executed seven years earlier did not, therefore, constitute a valid defense and could not serve as the basis for opening the judgment. See and compare: Silvestri v. Kinest, 318 Pa.Super. 14, 17, 464 A.2d 494, 495 (1983); Bell Federal Savings and Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981); First Pennsylvania Bank, N.A. v. Weber, 240 Pa.Super. 593, 360 A.2d 715 (1976) allocatur denied September 8, 1976.

Similarly, the averment in the petition to open that “any monies given were given as gifts” did not require that the judgment be opened. Appellant alleged no facts in support of his conclusory averment that the $7,000.00 for which he had signed a judgment note was a gift. Pa.R.C.P. 2959(e) provides that “[t]he court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions or other evidence .... If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.” (emphasis supplied) Appellant offered no evidence relevant to his allegation that the monies were a gift nor did he allege any facts in his petition in support of this alleged defense. In the absence of any evidence “which in a jury trial would require the issues to be submitted to the jury,” Pa.R.C.P. 2959(e), the court could not open the judgment. See Silvestri v. Kinest, supra 318 Pa.Super. at 17, 464 A.2d at 495.

The allegation by appellant that his wife was equally liable was a conclusion of law which was not admitted by the listing of the cause by the appellees, nor was it a valid defense to the judgment. The record clearly demonstrates that appellant alone signed the instrument upon which judgment was confessed. As there was no evidence of any liability on the part of Mrs. Juliano in connection with the note, no jury issue was presented. See First Pennsylvania Bank, N.A. v. Weber, supra. Moreover, even if Mrs. Juliano had signed the note as co-maker with appellant, her liability would have been joint and several with that of appellant, Wilner v. Croyle, 214 Pa.Super. 91, 98, 252 A.2d 387, 390 (1969), and would not have constituted a valid defense to the judgment entered against appellant. Young v. Pileggi, supra 309 Pa.Super. at 573, 455 A.2d at 1232.

The final defense asserted by appellant in his petition to open was accord and satisfaction of the debt upon which judgment had been confessed. Appellant again alleged no facts whatsoever in relation to this defense which, as a conclusion of law, had not .been admitted by appellees.

“ ‘An accord and satisfaction is the' result of an agreement between the parties which may be and usually does result from an implied agreement arising from the circumstances. If an agreement stems from a disputed claim, the acceptance of an amount less than the creditor claims to be due, when tendered by the debtor in full satisfaction of the creditor’s claim, becomes a completed accord and satisfaction..... There must be an honest dispute and a person cannot create a dispute sufficient for the purpose of an accord and satisfaction by a mere refusal to pay a claim undisputed in fact.’ ” Hagerty Oil Co. v. Chester County Security Fund, Inc., 248 Pa.Super. 456, 457-458, 375 A.2d 186, 187 (1977) quoting Law v. Mackie, 373 Pa. 212, 222, 95 A.2d 656, 660 (1953).

Moreover, the agreement arrived at in the accord must be executed by actual payment or performance to constitute a satisfaction and not by mere promise of future performance. Duryea v. Long, 191 Pa.Super. 511, 515, 159 A.2d 259, 261 (1960). Appellant, having failed to allege the elements of an accord and satisfaction, i.e., the existence of a bona fide dispute and payment and acceptance of consideration conditionally tendered, has not presented any evidence which would create an issue for submission to the jury. Pa.R.C.P. 2959(e). See Silvestri v. Finest, supra 318 Pa.Super. at 17, 464 A.2d at 495; VanBrakle v. Lanauze, supra 293 Pa.Super. at 279, 438 A.2d at 994; Lincoln Bank v. Kelly, supra 282 Pa.Super. at 269, 422 A.2d at 1110; First Pennsylvania Bank, N.A. v. Weber, supra 293 Pa.Super. at 603, 360 A.2d at 721.

As the petition to open the judgment confessed against appellant failed either by not averring valid defenses or by not alleging facts sufficient to create an issue for a jury, the petition was properly dismissed by the distinguished hearing judge whose order we hereby affirm.

      . Attorney’s fees in the amount of $350.00 and interest at 8% per annum in the amount of $3,920.00 were included in the judgment.

      . Service of the original complaint was not effected and on March 17, 1981, service of a reinstated complaint was accepted by counsel for appellant.

      . The notes of testimony contain the following statement by counsel for appellant:
      “Mr. Knauer: Your Honor, if I may, the listing of the matter came about when counsel and I were together at an arbitration several weeks ago. And I discovered that there was this open petition, and we discussed the best way of getting it on the list, and counsel said he would move it onto the list before Your Honor.” [N.T. 8]

      . Pa.R.C.P. 209 provides:
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer, (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purposes of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

      . This section has been repealed. The statute of limitations applicable to causes of action upon bonds, notes or other similar instruments in writing is now four years. See 42 Pa.C.S. § 5525(7).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    469 A.2d 221
    In re ESTATE OF Foster C. HILLEGASS, Deceased. Appeal of COMMONWEALTH of Pennsylvania, Attorney General, as Parens Patriae for Charities.
    Superior Court of Pennsylvania.
    Argued June 16, 1983.
    Filed Nov. 25, 1983.

      Charles E. Donohue, Deputy Attorney General, Philadelphia, for appellants.
    Adam B. Krafczek, Reading, for participating parties.
    Before CERCONE, President Judge, .and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This Commonwealth appeal arises from the lower court’s decision to permit the directors of a charitable trust to dissolve the trust in favor of contingent beneficiaries entitled to share the remainder of the donor’s estate in the event of such dissolution. Finding no merit in the Commonwealth’s several contentions, we affirm the order of the court below.

In 1955, the decedent, Foster C. Hillegass, incorporated The Hillegass Foundation, a non-profit trust, with an initial $1,000 contribution, to provide scholarships for needy students. In May, 1956 he executed a will which was in effect at the time of his death in 1960. In Item Second of his will, the decedent bequeathed his entire estate to his wife, Florence Hillegass, “for and during the term of her natural life, with full power to consume as much of the principal ... as may be necessary for [her] care, maintenance, comfort and support ... and upon her death, provided that the Corporation known as THE HILLEGASS FOUNDATION shall not have been earlier dissolved, I give, devise and bequeath the same unto THE HILLEGASS FOUNDATION....” The will also provided that if the Foundation “should fall by virtue of [its] dissolution,” then one-half of the estate would go to the church decedent attended and the remaining half to a group of named relatives. In April, 1961, decedent’s widow renounced her “power to consume” the principal (except so far as needed for a marital deduction). In early January, 1979, Mrs. Hillegass, as head of the Foundation’s Board of Directors, petitioned to have the American Bank and Trust Co. of Pennsylvania (American Bank) appointed as the Foundation’s trustee. The petition was granted and a subsequent audit of the estate, the first since the Foundation’s establishment, was performed. At the time of the audit, Mrs. Hillegass and Charles Hillegass, surviving directors of the Foundation, filed a second petition stating that they were

of the opinion that The Hillegass Foundation can best more firmly establish itself and continue to exist as an operating charitable foundation with a separate identity as part of the Community Foundation known as Central Montgomery County Foundation____
[it is] the desire of your petitioners that there shall never be a dissolution of the Hillegass Foundation within the meaning of Item Second of the Will of Foster C. Hillegass.

Before the filing and granting of the petition, the contingent beneficiaries and the Attorney General, among others, received copies of the petition and a letter from the Foundation, stating, “It is not anticipated that any assets of the estate will ever pass to the church or to any of the individuals named as contingent beneficiaries.” In February, 1979, Judge Taxis granted the petition authorizing the transfer of the present assets and the remainder interest of The Hillegass Foundation to the Central Montgomery County Foundation (County Trust). The decree provided, “This transfer constitutes a continuance and not a dissolution of The Hillegass Foundation.” Subsequent to this order, Mrs. Hillegass, in accordance with authority granted her by the Foundation’s by-laws, nominated Wilford Moll, her brother, and Kenneth Hallman, a family friend, to join her on the Board of Directors. Then, on August 12, 1980, Mrs. Hillegass executed a writing on behalf of the Board of Directors stating that the petition she had previously signed was erroneous and that the Foundation should be dissolved in favor of the contingent beneficiaries. In June, 1981, the Commonwealth permitted Mrs. Hillegass to dissolve the corporate life of The Hillegass Foundation. Later in June, the trustee, American Bank, petitioned for a declaratory judgment to determine whether the Board of Directors had the authority to dissolve the Foundation. The Trustee withdrew from the action when appellant, the Attorney General, acting as parens patriae for charitable foundations, took over the representation of the public interest in challenging the dissolution of the Foundation. On March 8, 1982, Judge Tredinnick issued a Decree Nisi stating that “the dissolution of The Hillegass Foundation ... constituted a dissolution thereof for purposes of devolution of assets under the will of Foster C. Hillegass, deceased.” The decree also provided that the transfer of the Foundation’s remainder interest to the County Trust was revocable. Following the denial of the Commonwealth’s exceptions, the decree was finalized. This appeal followed.

The Commonwealth contends first that Judge Taxis’ inclusion of The Hillegass Foundation in the County Trust is conclusive of its status, thereby barring this declaratory judgment action on res judicata principles. We disagree, finding the doctrine of res judicata inapplicable in this case. In order for a subsequent action to wholly barred, it must share with the earlier judgment a concurrence of four elements:

(1) an identity of the thing sued upon;
(2) an identity of the cause of action;
(3) an identity of the person and parties to the action; and
(4) an identity of the quality or capacity of the parties suing or sued.

Dunham v. Temple University of the Commonwealth System of Higher Education, 288 Pa.Superior Ct. 522, 527, 532, 432 A.2d 993, 996, 999 (1981); see Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Kreider v. Kleinfelter, 314 Pa.Superior Ct. 571, 461 A.2d 304 (1983); Del Boring Tire Services, Inc. v. Barr Machines, Inc., 285 Pa.Superior Ct. 66, 426 A.2d 1143 (1981).

The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court.

Bearoff v. Bearoff Brothers, Inc., 458 Pa. 494, 498, 327 A.2d 72, 75 (1974). “The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Township of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 41, 276 A.2d 556, 557 (1971). “When the causes of action in the first and second actions are distinct, or, even though related, are not so closely related that matters essential to recovery in the second action have been determined in the first action, the doctrine of res judicata does not apply.” Id., 2 Pa.Cmwlth. at 42, 276 A.2d at 558. Further, the Court in Haefele v. Davis, 399 Pa. 504, 508, 160 A.2d 711, 713 (1960), citing Wright v. Weber, 17 Pa.Superior Ct. 451, 457 (1901), cautioned

The conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined nor to collateral questions which arise but do not become part of the case ... [A] former judgment is not conclusive of anything which was not directly decided by it or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record, or aliunde, that it must have rested on the precise question which it sought again to agitate.

(emphasis added). Here, the first action involved a petition by the Foundation’s directors requesting the court to transfer the Foundation’s present and future assets to the County Trust without dissolving the Foundation. In response, the lower court authorized the requested transfer, stating that “[t]his transfer constitutes a continuance and not a dissolution of The Hillegass Foundation.” The second action, however, involved a petition by the Foundation trustee requesting a declaratory judgment as to the current directors’ ability to dissolve the Foundation in favor of the contingent beneficiaries. These two actions, notwithstanding the fact that there was no actual litigation between two identical parties, are substantially dissimilar. The court in the first action merely held that the Foundation would become a contemporaneous part of the County Trust while still remaining a separately identifiable charity. That adjudication did not decide the issue of whether the directors could, at a future date, dissolve the Foundation. We reiterate that “[t]he conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined.” Wright v. Weber, supra at 457. Deciding that one particular transfer of assets constituted a continuance and not a dissolution of the foundation fails to decide the issue of whether the Foundation can be dissolved in the future. Accordingly, we find the doctrine or res judicata inappropriate in this appeal from the declaratory judgment action.

The Commonwealth’s three remaining contentions all concern the ultimate dissolution of the Foundation. The Attorney General argues specifically that the lower court erred in finding that (1) Mrs. Hillegass possessed, in effect, a limited power of appointment under decedent’s will; (2) the directors’ transfer of the assets was revocable; and (3) the directors had the authority to dissolve the Foundation. Although not choosing to characterize her power as a limited power of appointment, we find that the lower court correctly determined that Mrs. Hillegass, on behalf of the directors, had the authority to revoke the transfer of the remainder interest to the County Trust and to dissolve The Hillegass Foundation. The testator’s intention, gleaned from the language of the will, is the controlling factor in construing the instrument. “Consideration must be given to all words used and, if posible, a result reached which is not in disregard of portions of the instrument.” Johnson Estate, 359 Pa. 645, 649, 59 A.2d 877, 879 (1948) (citations omitted). “[WJills should be construed so as to give effect to every word employed by the testator.” Keffalas Estate, 426 Pa. 432, 438, 233 A.2d 248, 251 (1967).

Here, the decedent willed that upon his wife’s death, the Foundation would receive the remainder “provided that the Corporation known as THE HILLEGASS FOUNDATION shall not have been earlier dissolved.” He further provided, however, "in the event that the bequest should fall by virtue of the dissolution ” of the Foundation, that the church and the named group of relatives would share the remainder, (emphasis added). Thus, the decedent twice mentions the possible dissolution of the trust. Notwithstanding the decedent’s interest in his Foundation, the will’s language reasonably supports the view that the testator clearly contemplated the dissolution of the trust and chose to dictate that, in that event, his church and a group of his relatives would benefit from the remainder. Other than either the decedent dissolving the trust in his lifetime or Mrs. Hillegass acting to dissolve the trust after her husband’s death, we can think of no cause for the trust’s dissolution. Mrs. Hillegass was given the power to consume for her lifetime. She also had the authority, under the Foundation’s by-laws, to appoint two others to join her as the directors of the Foundation. After the initial $1,000 contribution to the Foundation, neither Mr. nor Mrs. Hillegass contributed additional funds. More importantly, from the time of the Foundation’s creation in 1955, including the five years that the decedent was alive, no Foundation monies have ever been distributed. No needy students have ever been given scholarships by The Hillegass Foundation. We question, therefore, the Commonwealth’s assertion that the decedent intended that the Foundation exist ad infinitum. We find it apparent that the decedent contemplated that for some reason he or his wife would choose to dissolve the Foundation. It is plausible, for instance, that the decedent may have desired the Foundation’s dissolution if the need for student scholarships declined, or his church encountered financial hardship. Because we feel that the decedent intended his wife would be able to consider similar options, we infer from the language of his will that Mrs. Hillegass had the right to dissolve the Foundation.

Although no language in the will details a procedure for dissolving the Foundation, any dissolution must comply with the procedures outlined in the Corporations Not-For-Profit Act, 15 Pa.C.S.A. § 7101 et seq. Accordingly, because the record reveals that the Commonwealth permitted the dissolution of the incorporated Foundation, Lower Court Op. at 3, we find that the Foundation has been validly dissolved, both in terms of the decedent’s intent as evidenced by his will, and the statutory requirements for corporate dissolution.

In conclusion, we hold that the Commonwealth’s position has little merit and affirm the lower court’s decree.

Affirmed.

      . The Foundation’s by-laws provide that the Foundation have three directors. The decedent was the third director. For a long period after the decedent's death, Mrs. Hillegass and Charles Hillegass, who became too ill to serve, were the only directors.

        . The initial $1,000 contribution had grown to $1,980.32 by March 21, 1979.

      . The lower court permitted only the transfer of the remainder interest to be revoked. The Foundation’s existing asserts were left with the Central Montgomery County Foundation. We agree that Mrs. Hillegass had the power to dissolve the Foundation in favor of the alternate beneficiaries, but could not withdraw, and hence revoke the transfer of, the existing assets.

      . Because we find the doctrine of res judicata inapplicable, we need not address the question of whether Mrs. Hillegass’ petition to transfer the Foundation’s assets and remainder interest to the County Trust was a "judgment.” See 49 CJ.S. § 1 (a judgment is a "judicial determination that, on matters submitted to a court for decision, or legal duty or liability does or does not exist, or that, with respect to a claim in suit, no cause of action exists or that no defense exists.”); 20 P.L.E. § 1 ("A judgment must so dispose of the matters at issue that parties and other persons affected will be able to determine with reasonable certainty the extent to which their rights and obligations have been determined.).

      . Our interpretation of decedent’s intention and the language of his will leads us to conclude that he intended Mrs. Hillegass to be able to dissolve the Foundation in her lifetime. We choose, however, not to characterize her authority as an "indirect limited power of appointment” as did the lower court. This is to avoid confusion with a true power of appointment that would have given Mrs. Hillegass the right to appoint to the remainder interest whomever she desired. See Restatement of Property, § 318; see generally Keffalas Estate, supra.

      . We find no merit in the Commonwealth’s assertion that the language, "unless earlier dissolved,” indicates that the remainder was to vest at the time of decedent’s death. This conclusion is contrary to the language of the will, Mrs. Hillegass’s power to consume and our determination of her authority to dissolve the Foundation.

      . The Commonwealth’s two references to the Corporation Not-For-Profit Act, 15 Pa.C.S.A. § 7101 et seq., are irrelevant. 15 Pa.C.S.A. § 7728 relates to transactions between interested directors and nonprofit corporations. Here, there has been no contract or transaction between Mrs. Hillegass and the Foundation that has accrued to Mrs. Hillegass’s benefit. She has merely exercised her right to dissolve the Foundation. Further, the Commonwealth relies on § 7549 to demonstrate the directors’ bad faith in dissolving the Foundation. We need not reach the issue of the directors’ alleged bad faith in light of our finding (1) Mrs. Hillegass within her rights and (2) the non-profit corporation dissolved according to the laws of the Commonwealth.

      . Because we infer Mrs. Hillegass’s right to dissolve the foundation from decedent’s will, we find, inherently, that she could revoke the transfer of the remainder interest to the County Trust as well. The Commonwealth argues that the dissolution must fail because the directors, in revoking the transfer and dissolving the Foundation, terminatéd a charitable trust. We disagree. The lower court’s decrée correctly left the Foundation’s present assets, approximately $2,000, in the County Trust for distribution according to the decedent’s intent. Therefore, the only "true" assets of the Foundation were left in a charitable trust. Consistent with our interpretation of the will, the Foundation was only entitled to the remainder interest if the Foundation existed at the time of Mrs. Hillegass’s death. Therefore, because the remainder interest was only potentially part of the Foundation, the Commonwealth's protection of the charitable foundation need extend only so far as its current assets. The Foundation enjoys only the right accorded it by the testator and no more.


author: SPAETH, Judge:

text:
    469 A.2d 226
    PITTSBURGH’S AIRPORT MOTEL, INC., A Pennsylvania Corporation and Greater Pittsburgh Service Corporation, A Pennsylvania Corporation, Appellants, v. AIRPORT ASPHALT AND EXCAVATING COMPANY, a Pennsylvania Corporation and James H. Wentz.
    Superior Court of Pennsylvania.
    Argued June 8, 1983.
    Filed Dec. 2, 1983.

      Edward C. Leckey, Pittsburgh, for appellants.
    Eugene B. Strassburger, Pittsburgh, for appellees.

      Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This appeal arises from an order sustaining preliminary objections to a complaint in equity. As to one defendant, Airport Asphalt and Excavating Co., the order dismisses the complaint; as to the other defendant, James H. Wentz, it certifies the action to the law side of the court. As to the first part of the order we find the record incomplete and remand for further proceedings. As to the second part, we quash the appeal as interlocutory.

-1-

Appellant Pittsburgh Airport Motel, Inc., is the landlord, and appellant Greater Pittsburgh Service Corporation is the tenant, of premises known as Airways Airport Parking Pavilion in Allegheny County. Appellants entered into two construction contracts with appellee James H. Wentz to improve the parking facility. Airport Asphalt and Excavating Company, a Pennsylvania corporation wholly owned by Wentz, was not a party to the contracts. Appellants allege that Wentz stood in a confidential relationship with them, and that he abused that relationship. They claim that Wentz

was not faithful to his obligations under the contracts in that, by presenting false invoices for labor, materials and machine time, by kickbacks from suppliers and by means of other false representations to Plaintiffs’ [i.e., appellants’] General Manager, he obtained funds in excess of those to which he was entitled under the contracts, which were used to acquire and improve real estate titled in the name of his wholly owned corporation, Airport Asphalt and Excavating Company. In addition, Plaintiffs’ Complaint alleges that labor and materials paid for by Plaintiffs were used to improve this property. In short, by actions of Wentz which contain all of the elements of fraud, property of Defendant, Airport Asphalt and Excavating Company, was acquired and improved.

Brief for Appellants at 13.

On appellees’ preliminary objections, the trial court dismissed the action against Airport Asphalt, stating that it was “apparent that the basis for the cause of action [is] contracts entered into with the defendant James H. Wentz” and that there were no allegations “[ Sufficient to establish a course of action against the corporation \i.e., Airport Asphalt].” Appellants contend that before dismissing their complaint, the trial court should have granted them leave to amend it.-

After filing this appeal, appellants filed with the trial court a Statement of Proceedings, which was docketed and has been transmitted to us by the trial court as part of the record. In this Statement it is said that at the argument on appellees’ preliminary objections, appellants, by their counsel, “presented to the [trial court] the Motion for Leave to Amend Complaint which is part of the Record in this case.” Appellees agree that a Motion for Leave to Amend Complaint was in fact presented to the trial court at the argument. Brief for Appellees at 4. However, the Motion is not part of the record. So far as we are concerned, the record is “[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court....” Pa.R.A.P.1921. We have examined these papers, and appellants’ Motion is not among them. Nor, we may add, is there any reference to the Motion in the docket entires. Therefore, we may not consider the Motion. In saying this, we are aware that appellants have printed as part of their Reproduced Record what purports to be their Motion. R.R. 57a-59a. But a paper not of record may not be made of record simply by reproducing it. Cf Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974) (appellate court will not consider statement by trial judge that he gave jury instruction on reasonable doubt where transcript does not include instruction).

Thus, the case stands as follows: We know from the parties that a Motion for Leave to Amend Complaint was filed. We know from the trial court’s opinion that the court did not rule on the Motion. But we do not know, for the record does not disclose, what the Motion was. In these circumstances we have concluded that we should remand to the trial court so that it may consider the Motion. For while whether to grant leave to amend is a decision within the discretion of the trial court, amendments should be liberally allowed. Bell v. Shetrom, 214 Pa.Super. 309, 257 A.2d 323 (1969); Geiman v. Board of Assessment & Revision of Taxes, 412 Pa. 608, 195 A.2d 352 (1963). And “[i]f it is evident that a pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amended complaint---This is a positive duty of the court and not a matter of discretion____ However, if it clearly appears that a defective complaint cannot be cured, a demurrer to it and dismissal of the action is proper.” Mace v. Senior Adult Activities Center, Etc., 282 Pa.Super. 566, 569, 423 A.2d 390, 391 (1980) (citations omitted).

-2-

Appellants also argue that the trial court should not have certified their action against James H. Wentz to the law side of the court. The trial court explained its certification by stating that “[i]t is apparent from a reading of the complaint that if all the allegations set forth therein by the plaintiffs are proved that they will then be entitled to a money judgment in their favor against the defendant James H. Wentz. This being the case, the plaintiffs have an adequate remedy at law and their complaint in equity will be certified to the law side of the Court.” Slip op. at 1. We may not consider appellants’ argument that this was error, for the court’s order certifying the action to the law side of the court is interlocutory and nonappealable.

The general rule is that an order certifying an action to the law side of the court is not an appealable order:

There can be no doubt that this Court has held unappealable an order certifying a case from equity to law. Ridge Radio Corp. v. Glosser, 417 Pa. 450, 208 A.2d 839 (1965); McFarland v. Weiland Packing Co., 416 Pa. 277, 206 A.2d 18 (1965). However, this rule flows not from the mere fact that a case has been certified from one court to another, but from the fact that this certification still leaves open the possibility that the appealing party might eventually be made whole, i.e., that a court of law may award sufficient money damages to substitute for the equitable relief held unavailable. In short, the certification is but an interlocutory order.
Goldman v. McShain, 432 Pa. 61, 64, 247 A.2d 455, 457 (1968).

Accord: Samuels v. Hendricks, 300 Pa.Super. 11, 445 A.2d 1273 (1982) (and cases cited therein). See also, 5 Goodrich-Amram 2d § 1509(c): 2 (citing cases); 16 Stand.Pa.Prac.2d § 86.27 (citing cases). A qualification to this rule is that if the order effectively puts the party “out of court”, it is final and appealable. Goldman v. McShain, supra, McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966).

We find this case controlled by our decision in Samuels v. Hendricks, supra. There the appellant sought equitable relief on a quasi-contractual' theory for unjust enrichment. Distinguishing Goldman v. McShain, supra, and McCahill v. Roberts, supra, we found that the certification order did not put the appellant out of court, and therefore quashed the appeal:

In Goldman, the plaintiffs sought specific performance of a contract to build and operate a theater. The lower court held that they had not alleged an enforceable contract, thereby precluding equitable relief or damages at law. Instead of entering judgment on the pleadings for the defendants, the lower court certified the case to the law side of the court to enable plaintiffs to proceed under a theory of restitution to recover their expenses incurred in contemplation of the project. In denying the motion to quash the appeal, our Supreme Court reasoned that the order was final because its practical effect was to deny recovery upon the contract. 432 Pa. at 64-65, 247 A.2d at 456-457. Similarly, in McCahill, the Court held that a transfer order was final because its effect was to deny plaintiffs’ action to quiet title to a building. 421 Pa. at 236, 219 A.2d at 308. By contrast, in the present case, the lower court, in the exercise of its discretion, Long John Silver’s, Inc. v. Fiore, supra [255 Pa.Super. 183, 386 A.2d 569], determined that appellant could be adequately compensated by an award of damages for the breach of his contract with Mr. Hendricks. Consequently, because the practical effect of the order is not to preclude appellant from presenting the merits of his claim, it is not final and appealable. Toll v. Toll, 293 Pa.Superior Ct. 549, 555, 439 A.2d 712, 715 (1981).
Samuels v. Hendricks, supra 300 Pa.Super. at 17, 445 A.2d at 1276-77.

Similarly, in this case the trial court determined that appellants could be adequately compensated by an award of damages. This determination is supported by the complaint. See in particular paragraph 50, where appellants itemize their damage claim in considerable detail, several times to the penny.

Appellants allege that “[w]ithout a full accounting from Wentz”, they “are unable to state all damage claims exactly.” Complaint, para. 50. The demand for an accounting is not, however, by itself sufficient to preclude certification; or to state it differently, the trial court’s order certifying appellants’ action to the law side does not put appellants “out of court” on their demand for an accounting. For such relief is available in an action at law. Pa.R.Civ.P. 1021, Setlock v. Sutila, 444 Pa. 552, 282 A.2d 380 (1971); Stuyvesant Insurance Co. v. Keystone Insurance Agency, Inc., 420 Pa. 578, 218 A.2d 294 (1966). It is true that “when the accounts are mutual or complicated or when discovery is needed and is material to the relief”, equity has jurisdiction to order an accounting. Setlock v. Sutila, supra, 444 Pa. at 554, 282 A.2d at 381. In this regard, it has been held that “an account is sufficiently complicated to enable equity to take hold ... [when] a jury would not be qualified to state such an account.” Williams v. Finlaw, Mueller & Co., 292 Pa. 244, 248, 141 A. 47, 49 (1928). See also, Stuyvesant Ins. Co. v. Keystone Ins. Agency, Inc., supra; Fudula v. Keystone Wire & Iron Works, 283 Pa.Super. 502, 424 A.2d 921 (1981). However, nothing in the complaint warrants the conclusion that an accounting on the law side will not afford appellants an adequate remedy. We have said:

[Although the mere existence of a legal remedy is not sufficient to preclude equity jurisdiction, a court of equity, may, in the exercise of its discretion, determine whether the legal remedy is full, adequate, and complete in view of all the surrounding circumstances and the conduct of the parties. Ragano v. Rigot, 25 Pa.Cmwlth. 428, 360 A.2d 779 (1976); St. Joe Minerals v. Goddard, 14 Pa.Cmwlth. 624, 324 A.2d 800 (1974). Finally, absent a manifest abuse of discretion, an appellate court will not reverse the decision of an equity court. St. Vladimir’s Ukrainian Orthodox Church v. Preferred Risk Mut. Ins. Co., 239 Pa.Super. 492, 362 A.2d 1052 (1976); In re Kadiliak’s Estate, 405 Pa. 238, 174 A.2d 870 (1961). Long John Silver’s, Inc. v. Fiore, 255 Pa.Super. 183, 195, 386 A.2d 569, 575 (1978).

We shall therefore quash the appeal from that portion of the trial court’s order certifying the action against Wentz to the law side of the court. We note that appellants may renew their challenge after final disposition by the trial court. Adcox v. Pennsylvania Manufacturing Association Casualty Insurance Co., 419 Pa. 170, 175-76, 213 A.2d 366, 368 (1965), Samuels v. Hendricks, supra, 300 Pa.Super. at 17, 445 A.2d at 1277.

The appeal from that portion of the order certifying the action to the law side of the court is quashed. The case is remanded to the trial court for a ruling on appellants’ motion to amend the complaint to state a cause of action against appellee Airport Asphalt. We do not retain jurisdiction.


author: SPAETH, President Judge:

text:
    469 A.2d 230
    COMMONWEALTH of Pennsylvania v. Edward WALLACE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Dec. 9, 1983.

      Dorothy S. Langton, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   SPAETH, President Judge:

This is an appeal from an order dismissing, without a hearing or appointment of counsel, appellant’s third petition filed under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq. Counsel appointed to take this appeal has filed a petition for leave to withdraw. We find that counsel has discharged her duties and grant her petition to withdraw. We further find that of the five contentions made by appellant, four have been finally determined in prior proceedings and so are not cognizable under the present PCHA petition. The trial court found that appellant had waived the fifth contention. This was error, for waiver may not be found in the absence of counsel. We therefore reverse and remand for the appointment of counsel.

On May 19, 1966, appellant was found guilty of assault and battery with intent to ravish, conspiracy, and corrupting the morals of a minor. On August 5, 1966, motions for new trial and in arrest of judgment were denied, and appellant was sentenced. No appeal was taken.

On August 5, 1968, appellant filed his first PCHA petition. Counsel was appointed for appellant, and on April 10, 1969, after hearing, argument, and briefs, the petition was denied. No appeal was taken.

On January 9, 1975, appellant filed his second PCHA petition. Again, counsel was appointed. After a hearing, the trial court, on June 20, 1975, granted appellant leave to file a direct appeal to this court nunc pro tunc; otherwise the court denied the petition. We affirmed both the judgment of sentence and the order denying the petition, Commonwealth v. Wallace, 238 Pa.Super. 763, 357 A.2d 171 (1976); Commonwealth v. Wallace, 239 Pa.Super. 731, 357 A.2d 170 (1976), and the Supreme Court denied allocatur, Commonwealth v. Wallace, No. 2347 Allocatur Docket 1976.

On June 1, 1982, appellant filed his third PCHA petition, which was amended on October 13, 1982. On March 16, 1983, the trial court denied the petition without a hearing or the appointment of counsel. This appeal is from that order.

Counsel appointed to represent appellant on this appeal has filed a petition for leave to withdraw. She has followed all of the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)—requirements designed to ensure that the quality of representation is not determined by the extent of an appellant’s resources, while recognizing that even diligent counsel may conclude that an appeal is without merit. Commonwealth v. Jones, 451 Pa. 69, 71, 301 A.2d 811, 813 (1973). Counsel, after making a conscientious examination of the record and interviewing appellant, determined that this appeal is frivolous. She then: 1) petitioned this court for leave to withdraw; 2) filed a brief referring to anything in the record that might arguably support the appeal; and 3) furnished a copy of the brief to appellant and advised him of his right to retain new counsel or raise any additional points that’ he deems worthy of this court’s attention. Counsel’s brief raises all the arguable issues in favor of the appeal and does not resemble a no-merit letter or amicus curiae brief. Her request to withdraw is therefore granted.

We must now make an independent judgment whether the appeal is in fact frivolous. Anders v. California, supra; Commonwealth v. McClendon, supra.

Of the five contentions made by appellant in this third PCHA petition, four were made in his first petition. As already noted, that petition was denied on April 10, 1969, and no appeal was taken. The four contentions made have therefore been finally litigated, 42 Pa.C.S.A. § 9544(a)(1), and cannot be the basis of any relief, 42 Pa.C.S.A. § 9543(4).

The trial court found that appellant had waived the fifth contention because he had failed to make it either in the first two PCHA petitions or on his appeal nunc pro tunc to this court. This was error. In Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969), the Supreme Court held:

Whatever may be the merits on the question of waiver here, a hearing court cannot summarily dispose of a petition, without counsel, on the ground of waiver. Our rules provide for summary disposition only in cases where the issue has been determined against the petitioner, not where it has been waived because of petitioner’s failure to raise the question for a determination.
The reasons for this rule are quite simple. The question of waiver is often a complicated legal one. There may be ‘extraordinary circumstances’ which will justify petitioner’s failure to raise the issue. There may have been an intervening change in the law which will now entitle him to relief. And failure to raise an issue constitutes only a ‘rebuttable presumption’ of waiver. These are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with.
Id., 436 Pa. at 45, 258 A.2d at 516-17 (citations omitted).

And see Commonwealth v. Alvarado, 488 Pa. 250, 412 A.2d 492 (1980); Commonwealth v. Mawson, 306 Pa.Super. 22, 451 A.2d 1371 (1982); Pa.R.Crim.P. 1504.

The trial court’s order is vacated and the case is remanded with instructions to appoint counsel to represent appellant. Jurisdiction is not retained.

      . These are that:
      1) the evidence was insufficient to support his conviction of assault;
      2) he was denied effective assistance of counsel when his trial counsel represented a co-defendant and then failed to appeal;
      3) the Commonwealth used the victim's perjured testimony; and
      4) he was denied his right to appeal.

      . The fifth contention is that the trial judge neglected to inform appellant at sentencing whether his sentence of 2Vi to 5 years for assault was concurrent with or consecutive to a 7'/2 to 15 year sentence that appellant was serving in connection with another matter. Appellate counsel has supplemented this claim with the contention that error occurred when the sentencing judge by letter and a later order corrected his sentence to indicate that it was to be served consecutively to the other sentence, this being done without the presence of appellant and without placing reasons on the record.


author: BROSKY, Judge: CAVANAUGH, Judge,

text:
    469 A.2d 233
    Jeffrey Lynn SECHLER and Winnie Godin Sechler, his wife v. ENSIGN-BICKFORD COMPANY, a Subsidiary of E-B Industries, Inc., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued March 30, 1983.
    Filed Dec. 9, 1983.

      Ronald W. Crouch, Pittsburgh, for appellant.
    John P. Joyce, Pittsburgh, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the order denying appellant’s motion to amend its Answer and New Matter. Appellant contends that the order was final and thus appealable and that the denial of its motion constituted an abuse of discretion by the lower court. We find that the order was interlocutory and non-appealable and, accordingly, quash this appeal.

This action was instituted on May 8, 1978, when appellees filed a Complaint in Assumpsit. The Complaint alleged, inter alia, that appellant manufactured a defective fuse; that the defect caused personal injuries to Jeffrey Lynn Sechler following an explosion of dynamite; that appellant failed to provide warnings of the danger inherent in the fuse; and that appellant breached warranties of merchantability and fitness for a particular purpose. Appellant, in its original Answer, denied that there was any latent defect in the fuse and that it had breached any warranties. Extensive discovery followed and after numerous delays trial was set for September, 1981. Appellant engaged additional counsel on April 20, 1981, who filed the motion to amend the Answer and New Matter on May 22, 1981. In its amended Answer and New Matter, appellant sought to raise the following defenses: (1) that instructions on the proper use of its product were provided with the product; (2) that all warranties of merchantability and fitness for a particular purpose were disclaimed at the time of sale; (3) that the act of parties not associated with Ensign-Bickford in changing, removing, or otherwise making unavailable warnings and instructions in the use of the product was an intervening and/or superseding cause of the Sechlers’ injuries; and (4) that the product did not reach Jeffrey Sechler in the same condition in which it was manufactured and sold by EnsignBickford, but rather had been materially altered. The motion was denied and this appeal followed.

Appellant first contends that the order of the court below is not interlocutory, but a final and thus appealable order. See 42 Pa.C.S.A. § 742; Pa.R.A.P. 341. “ ‘Finality’ exists when the practical effect of an order is to put the defendant out of court...” Balter v. Balter, 284 Pa.Super. 350, 355, 425 A.2d 1138, 1140 (1981).

Appellant argues that several Pennsylvania cases holding that the denial of a defendant’s motion to amend its answer to allege a new affirmative defense is a final order support its contention that the instant order is a final one. For example, in Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966), the Supreme Court stated:

The new defense proposed is affirmative in nature and must be pleaded, otherwise it is waived. See, Pa.R.Civ.P. 1030, 1032, and Lang v. Recht, 171 Pa.Super. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant “out of court”. It is, therefore, an appealable order.

Id., 421 Pa. at 24, 218 A.2d at 351. Accord Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9 (1981) (seeking to plead statute of limitations); John McShain, Inc. v. Cessna Aircraft Co., 243 Pa.Super. 220, 364 A.2d 951 (1976) (seeking to plead collateral estoppel); Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967) (seeking to plead an alleged release); Helms v. Chandler, 423 Pa. 77, 223 A.2d 30 (1966) (seeking to plead alleged lack of cooperation of insured as required by an insurance policy); Ct. Adcox v. Pennsylvania Mfg. Assn. Cas. Ins. Co., 419 Pa. 170, 213 A.2d 366 (1965).

The holdings of these cases, as is clear from Posternack, are clearly based on the fact that affirmative defenses must be pleaded, otherwise they will be considered waived. This result is mandated by Pa.R.C.P. 1030 and 1032 which provide in relevant part as follows:

Rule 1030. New Matter
All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel failure of consideration, fraud, illegality, immunity from suit, impossibility of performance, laches, license, payment, release, res judicata, and waiver and, unless previously raised by demurrer and sustained, the defenses of statute of frauds and statute of limitations, shall be pleaded in a responsive pleading under the heading “New Matter”. Rule 1032. Waiver of Defenses. Exceptions
A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply...

We note, however, that this court has held that “Pa.R. C.P. 1032 means only that the affirmative defenses listed in Rule 1030 are waived at trial if not properly raised in the pleadings...” Sheppard v. First Pennsylvania Banking & Trust Co., 199 Pa.Super. 190, 192, 184 A.2d 309, 311 (1962).

We note further though that at the time Sheppard was decided, Rule 1030 provided:

The defenses of accord and satisfaction, arbitration, and award, discharge in bankruptcy, duress, estoppel, failure of release, res judicata, statute of frauds, statute of limitations and waiver shall be pleaded in a responsive pleading under the heading “new matter.” Any other affirmative defense may be similarly pleaded. (Emphasis added).

Since Rule 1030 now requires all affirmative defenses to be pleaded as “New Matter”, we believe that the sanction of Rule 1032 as construed by Sheppard now extends to all affirmative defenses, not only to those specifically listed by Rule 1030.

Thus, the conclusion we draw from Posternack and Sheppard is that an order denying a motion to amend an Answer is only appealable when that proposed amended Answer sought to raise a new affirmative defense. Therefore, the question in the case sub judice becomes whether the defenses appellant attempted to raise in its proposed amended Answer and New Matter are affirmative defenses. Clearly, they are not defenses listed as affirmative defenses by Rule 1030; we must thus determine whether they are affirmative defenses not listed by this rule.

In making this determination, we will first examine what constitutes an affirmative defense. “The term ‘New Matter’ [under which heading Rule 1030 requires affirmative defenses to be pleaded] embraces matters of confession and avoidance as understood at common law, and has been defined as matter which, taking all the allegations of the complaint to be true, is nevertheless a defense to the action.” Standard Pennsylvania Practice 2d § 26:42 (citing Pisiechko v. Diaddorio, 230 Pa.Super. 295, 326 A.2d 608 (1974)). “New matter ignores what the adverse party has averred and adds new facts to the legal dispute on the theory that such new facts dispose of any claim or claims which the adverse party had asserted in his pleading.” 2 B Anderson Pa.Civ.Prac. § 1030.12. As noted in Anderson, pleaders often confuse specific denials with new matter. “[A] specific denial in contrast to new matter, merely tells what happened in place of the averment of the adverse party which is denied.” Id. For example, “a denial of the contract pleaded by the plaintiff and the assertion of a different contract or the denial that the defendant is in control of premises and that a third person is in control is fundamentally a traverse and not an avoidance and may not be pleaded as new matter.” Goodrich-Amram 2d § 1030:1.-4.

Instantly, after considering appellant’s proposed defenses in light of the preceding criteria, we conclude that they are not affirmative defenses. Appellant’s averments that warnings were delivered with the product; that other parties removed or otherwise did not make the warning available to Mr. Sechler; and that all warranties were disclaimed, simply denies appellees’ allegations that warnings were not provided and that warranties were breached and tells what happened in place of these allegations. Appellant’s further averments that the acts of other parties as to the warnings were superseding and intervening causes of appellees’ injuries and constituted a material alteration of the product after sale are nothing more than legal conclusions based on the specifics of its denials.

Since the proposed amended Answer and New Matter did not seek to raise a new affirmative defense, the order denying the motion to amend is non-appealable and we must, accordingly, quash the appeal.

Appeal quashed.

CAVANAUGH, J., filed a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. I would hold that the proposed amendment and new matter had the characteristics of affirmative defenses and would therefore not quash the appeal. Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966). I would also find that the court abused its discretion in not permitting the amendment.

      . Unless a special right to appeal is expressly given by statute, an appeal may only be taken from a final order. Pellegrine v. Home Insurance Co., 200 Pa.Super. 48, 186 A.2d 662 (1963); See Pa.R.A.P. 311.

      . An example of such an unlisted affirmative defense would be any defense based upon justification or excuse. Goodrich-Amram 2d. § 1030:1.4.


author: CERCONE, President Judge:

text:
    469 A.2d 236
    John J. CASSIDY v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1983.
    Filed Dec. 9, 1983.

      Dean B. Stewart, Jr., Norristown, for appellant.
    Bernard V. Digiacomo, Norristown, for appellee.
    Before CERCONE, President Judge, and CAVANAUGH, and WIEAND, JJ.
   CERCONE, President Judge:

Appellant, Keystone Insurance Company, takes this appeal from the lower court’s denial of appellant’s petition to strike the award of arbitrators, and the granting of appellee’s petition to confirm said award and from the judgment entered thereon. Appellant argues, inter alia, that the court erred in granting appellee’s earlier petition to appoint an arbitrator where that petition was not properly served upon appellant. We find appellant’s argument to have merit and we hereby vacate judgment and reverse the order or the lower court confirming the award of arbitrators.

On or around July 7, 1980, appellee, John Cassidy, was injured in an automobile accident in Dade County, Florida. The operator of the other vehicle involved in the accident, fled the scene and is unknown. At the time of the accident, appellee was insured by appellant — company. In due course, appellee retained counsel, and on March 18, 1981, counsel wrote a letter to appellant — company, which, in relevant part, said:

Since more than eight months have already elapsed from the time of the accident, and since I am advised that you are in receipt of medical specials to date all in excess of $10,000.00, and since your policy coverage is in the sum of $15,000.00, I would think that a cursory review or your file should conclude in your offering us the $15,-000.00 without the necessity of going into arbitration. In that regard, I am advising that we would withhold from proceeding in arbitration but only for a period of two weeks; in the event that you do not make the full offer of $15,000.00 in that time, I am herewith advising that I have selected as our arbitrator in this matter, David S. Katz, Esquire, 275 Commerce Drive, Fort Washington, Pa., and I am further advising that you are to, in the event of non-amicable settlement, supply me and/or Mr. Katz of your selection of an arbitrator by no later than April 3, 1981.
If the matter has not concluded and you have not selected an arbitrator as above set forth, I am herewith advising that I will promptly file the Petition for the Appointment of an Arbitrator in the Court of Common Pleas of Montgomery County, Pennsylvania, a sample copy of which is enclosed for your file.

Appellant did not respond to this letter, whereupon, on May 22, 1981, appellee filed a petition for appointment of arbitrator. A copy of this petition was not served upon appellant in advance of the hearing on the matter. Nevertheless, the court granted appellee’s petition and appointed an arbitrator in appellant’s stead. Appellee, on that same day, sent appellant a certified letter advising appellant of the appointment and enclosing a copy of the petition and order. Again, appellant did not respond. Thereafter, on June 3, 1981, one of the arbitrators sent a letter to both parties advising them of the date and time scheduled for the arbitration, the date being June 17, 1981. The next day, June 4, 1981, appellee sent appellant a letter in which appellee reiterated the date of the arbitration and listed the various medical bills which appellee intended to present. The morning of the arbitration hearing, counsel for appellant appeared and requested a continuance. This request was denied and the hearing proceeded, however counsel for appellant declined to participate. The arbitrators award was in favor of appellee. The next day, appellant filed a petition to strike the award of the arbitrators and to strike the order of the court of May 22, 1981, in which the court appointed an arbitrator on appellee’s petition. Appellant argued, then, as now, that the filing of the petition to appoint an arbitrator was procedurally defective because the petition was not properly served on appellant. We agree.

A procedurally similar issue was decided by this Court in Keystone Wire & Iron Works, Inc. v. Van Cor, Inc., 245 Pa.Superior Ct. 537, 369 A.2d 758 (1976). In Keystone Wire, we were asked to interpret an earlier version of the Uniform Arbitration Act. Specifically, our attention was focused on sections 3 and 4 of the Act. Section 3 at that time provided:

The party aggrieved by the alleged failure, neglect, or refusal of another to perform under a written agreement for arbitration, may petition the Court of Common Pleas of the county having jurisdiction for an order to show cause why such arbitration should not proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by law for the service of a summons. The court shall hear and determine the matter upon the petition and answer and depositions, or after hearing of the parties in open court, as the court may determine; and the court upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not at issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement, or the failure, neglect, or refusal to perform the same, be at issue, the court shall proceed to the trial thereof____ (Emphasis supplied).

Section 4 of the same Act read:

If in the agreement provision be made for a method of naming or appointing arbitrators or an umpire,. such method shall be followed, but ... if a method be provided and any party thereto shall fail to avail himself of such method, ... the court shall designate and appoint arbitrators, or an umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein,

The facts in Keystone Wire were to very much like those in the case now before us. In Keystone Wire, the plaintiff filed a petition with the court alleging that it had notified counsel for the defendant of the former’s appointment of an arbitrator but that defendant had refused to fulfill its contraction obligation to name an arbitrator and plaintiff asked the court to name one in defendant’s stead. Plaintiff mailed a copy of the petition to defendant, and defendant argued to the court that such service was improper. The lower court denied defendant’s objection. On appeal, plaintiff argued that because section 4 of the Act made no provision for service, plaintiff was free to adopt any method of service. We rejected the plaintiff’s argument with these words:

The failure of the legislature to specify a method by which an allegedly defaulting party is to be notified of the pendency of a petition for appointment of arbitrators should not be construed to authorize either an ex parte proceeding or one conducted by informal notice. The right to name an arbitrator is a valuable one, and we should not permit it to be forfeited without proper notice and an opportunity to defend. Furthermore, our Supreme Court has repeatedly held that the rules relating to service of process must be strictly followed, and jurisdiction of the court over the person of a party is dependent upon proper service being made. Thus, not only is service of process in accordance with the Rules of Civil Procedure necessary to give a party notice of the pend-ency of an action, it is essential to the jurisdiction of the court over the person. Id., 245 Pa.Superior Ct. at 541, 369 A.2d at 759-760. (citation omitted) (footnotes omitted) (emphasis added.)

In a footnote in the Keystone case, we elaborated on the question of the type of service required in the rules of civil procedure. We quoted at length from Pa.R.C.P. 233, which, in relevant part, provided, then, as now,

“All legal papers, except writs and pleadings, to be served upon a party under any Rule of Civil Procedure including but not limited to motions, petitions, answers thereto, rules, orders, notices, interrogatories and answers thereto, shall be served by leaving a copy for or mailing a copy to him at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party, but if there is no such endorsement then
“(1) within the county in which the action is pending by leaving a copy for or mailing a copy to him at the residence or place of business of the party;
“(2) outside the county in which the action is pending, whether or not within the Commonwealth, by,
“(a) having a competent adult hand a copy to the person to be served; or
“(b) leaving a copy at or mailing a copy by registered mail to the last known address of the party to be served; or
“(c) if no address is known, publication in such manner as the court by general rule or special order direct.”

Regarding Rule 233, we wrote:

Rule 233, Pa.R.C.P., clearly contemplates that service of petitions and rules may be accomplished without sheriffs service only after the action has been commenced pursuant to Rule 1007, Pa.R.C.P. Ordinarily, the jurisdiction of the court may not be invoked by petition and rule to show cause. Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); Commonwealth v. Dauphin County, 354 Pa. 556, 47 A.2d 807 (1946); Section 3 of the Uniform Arbitration Act, however, expressly authorizes a party to petition for a rule to show cause why the arbitration should not proceed in, the manner provided in such agreement. It also provides that such an application shall be made in the manner provided by law for service of summons. Service of a writ of summons is expressly provided for in Rule 1009, Pa.R.C.P., and Rules cross-reference therein. Thus, in effect, a petition to compel arbitration is a bill to compel specific performance of an arbitration agreement. Nippon Ki-Ito Kaisha Ltd. v. Ewing-Thomas Corp., 313 Pa. 442, 170 A. 286 (1934).

Id., 245 Pa.Superior Ct. at 542 n. 4, 369 A.2d at 760 n. 4 (emphasis added)

Thus, in Keystone Wire we ruled plaintiffs service upon defendant by regular mail of the petition to appoint an arbitrator to be defective to either provide notice to defendant or to obtain jurisdiction of the court over the person of defendant.

Since the time of our decision in Keystone Wire, the legislature has repealed the old version of the Uniform Arbitration Act (1955) and has adopted a new statute, also called the Uniform Arbitration Act. [hereinafter referred to as the Act of 1980]. While the language of the Act of 1980 is considerably revised, nonetheless, it is apparent that our holding in Keystone Wire vis-a-vis the rules of civil procedure is still viable. To compel an arbitration, the Act of 1980 provides:

(a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.

42 Pa.C.S. § 7304(a)

Where one party refuses to appoint an arbitrator, the Act of 1980 states:

If the agreement to arbitrate prescribes a method of appointment of arbitrators, the prescribed method shall be followed. In the absence of a prescribed method or if the prescribed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act or is unable to act and his successor has not been appointed, the court on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of an arbitrator specifically named in the agreement.

Id. at § 7305.

Regarding service of the above applications, the Act mandates:

Except as otherwise prescribed by general rules, an application to the court under this subchapter shall be by petition and shall be heard in the manner and upon the notice provided or prescribed by law for the making and hearing of petitions in civil matters. Unless the parties otherwise agree, notice of an initial application for an order of court shall be served in the manner provided or prescribed by law for the service of a writ of summons in a civil action.

Id. at § 7317. (emphasis added.)

As we indicated in our prior discussion of Keystone Wire, the relevant rules of civil procedure read the same today as they did when we handed down our decision in Keystone Wire. Turning to the case sub judice, we note that not only did appellee fail to serve his petition by the sheriff but appellee did not even mail the petition to appellant until after the court made its ruling. It is therefore clear that appellee did not properly serve appellant with the petition to appoint an arbitrator. Accordingly, we vacate judgment and reverse the order of the lower court appointing an arbitrator.

Judgment vacated and the order of the lower court appointing an arbitrator is reversed.

      . Appellant took an appeal from the order of the Court of Common Pleas granting appellee’s petition to appoint an arbitrator. We found that appeal to be from an interlocutory order and accordingly the appeal was quashed. Cassidy v. Keystone Insurance Co., 297 Pa.Superior Ct. 421, 443 A.2d 1193 (1982). We also ruled that because the insurance policy in question made no mention of the Arbitration Act of 1927, the arbitrator in the instant case was at common law. Id., 297 Pa.Superior Ct. at 422 n. 1, 443 A.2d at 1193 n. 1. In view of this prior ruling of ours, we need not address anew appellant's present contention that the instant case is one of a common law arbitration.

      . Act of 1927, April 25, P.L. 381, No. 248, § 1 et seq.; 5 P.S. § 161 et seq.

      . The Act of 1980, October 5, P.L. 693, No. 142, § 501(a), 42 Pa.C.S. § 7301 et seq.

      . See 42 Pa.C.S. § 7341, which reads:
      The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

        See also 42 Pa.C.S. § 7314, which provides, in relevant part:
      (a) General Rule.—
      (1) On application of a party, the court shall vacate an award where:
      (i) the court would vacate the award under Section 7341 (relating to common law arbitration) if this subchapter were not applicable;


text:
    469 A.2d 240
    COMMONWEALTH of Pennsylvania v. Daniel T. STUFFLET, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed Dec. 16, 1983.

      Michael R. Muth, Public Defender, Stroudsburg, for appellant.
    Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   SPAETH, President Judge:

This is an appeal from a judgment of sentence. Appellant argues that the sentencing judge in imposing the sentence considered information that was irrelevant. We agree, and therefore vacate the sentence and remand for resentencing.

On December 27, 1978, appellant was sentenced to a term of 3V2 to 7 years in prison for robbery. He had also been convicted of burglary and recklessly endangering another person, but sentence was suspended on those convictions. An appeal was filed challenging the sentencing proceedings. Appellant claimed that the trial court had failed to comply with the sentencing guidelines, and had failed to state of record the reasons for the sentence. This court agreed and vacated the sentence and remanded for resentencing in accordance with the sentencing guidelines and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (court must articulate of record reasons for sentence imposed). Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981).

On remand, the trial court held a resentencing hearing, and on December 30, 1981, reinstated the previous sentence. On January 6, 1982, appellant filed this appeal, and on January 11th he filed a motion with the trial court for reconsideration of sentence, claiming that the court had considered irrelevant information. The court denied the motion, and appellant now makes the same claim on appeal.

The events leading to appellant’s conviction may be described as follows. Appellant and two other men entered a restaurant in Stroudsburg at approximately 1:30 a.m. on July 27, 1977. The two men with appellant locked the restaurant employees in a walk-in freezer while appellant ordered the manager, Carol Swalm, at gun-point, to open the safe. However, she could not open it. One of the two men then took her to a store room and raped her. The two men then forced her to leave the restaurant with them, but she got free and ran. At about that time, police officers arrived on the scene. They saw appellant leaving the restaurant with a stocking over his head and a gun in his hand, and arrested him.

At the resentencing hearing, after remand, the following colloquy occurred:

THE COURT: Here you have an armed robbery. You had a rape by one of them. You had the locking of people into a freezer; all of the earmarks of the 1920’s violence, almost, and it is just something that we are unaccustomed to in this area____
We feel the public is entitled to this protection, and we are going to continue to be as vigilant as we can on it. Is there anything else you would like to say?
MR. MUTH [defense counsel]: Additionally, I would point out to the Court, Your Honor, that the Court mentioned in its explanation of the incident that the rape of a woman occurred. Mr. Stufflet was never charged with that in any of the counts of the information.
THE COURT: But he was with the group where it occurred.
MR. MUTH: I agree, he was with them.
Even the conspiracy charge is not a conspiracy on rape, and I think it would be improper to include that rape in determining what the sentence would be.
THE COURT: I am not including it in the sentence. I am only sentencing on the robbery, but what I am including it in is this whole panorama of the nature of the thing.
MR. MUTH: I understand what the Court is saying. I don’t feel that should be considered in the panorama, particularly the rape, when he could have been charged with what could have been conspiracy with the rape. I simply point that out to the Court.
THE COURT: I agree that doesn’t go to the sentence, but I do not agree that does not go to the nature of the crimes in general, and of the general makeup of the particular crime being committed, that it was one of arrogance, and violence, and composed of a group that had no regard whatsoever for anybody, or anything that the Court has in mind, and is considering.
N.T. 34-36.

At the hearing on the motion for reconsideration of sentence, a similar colloquy occurred:

MR. MUTH [defense counsel]: The second reason for the Reconsideration of Sentence, which we feel was improper consideration, at the time the sentence was imposed the Court indicated it was taking into account the rape which occurred not by Mr. Stufflet but by one of the people who was with Mr. Stufflet.
Now, the Court’s phrasing — and I do not have a transcript from the hearing because it has not been transcribed yet. The Court’s statement based on my notes is “that does not go to the sentence but to the crimes in general.” I am unclear what the distinction is. I think it is something that the Court did take into account in determining and in justifying its sentence.
THE COURT: I took into account the nature of the scene you might say. In other words, you have a group here that went out and anticipated an armed robbery. One part of the group was the lookout and part of it was involved with the putting together of the employees and maybe, I’m not sure whether it was one customer, maybe one customer, I don’t know. Mr. Copenhaver was put in, remember Karl Copenhaver was there? They locked them up in the freezer. One of the fellows that is still missing raped one of the girls.
I took into consideration the type of escape that was involved. I took into consideration the whole scene. It was one to me of lawlessness and a band together. When I realized that crime was a private and individual thing, particularly when it comes to rape as not being a part of their general plot or plan, but that this was, what I am considering is the complete lawlessness of the entire scene.
MR. MUTH: I understand that, Your Honor. We feel that in spite of that, in spite of that we feel that taking into consideration actions done by someone other than Mr. Stufflet, particularly the rape when he was neither — I believe he was charged with Conspiracy and that was all. He was not found guilty of that. He was only found guilty of Robbery, Burglary and Recklessly Endangering Another Person. I think by taking into account actions at the scene of another Defendant when Mr. Stufflet was not even convicted of the Conspiracy, would not be proper. That is the reason we are bringing this before the Court for reconsideration.
THE COURT: The point is, I am not taking it into consideration as though he were also responsible for the rape, because that is a personal crime committed by that person and not within the contemplated scheme of the thing; but the lawlessness and the complete — the choice of words escapes me right now — but it was the complete disregard for anything or anyone around at the time this band of robbers did this. I am considering that, yes.
MR. MUTH: I understand that, Your Honor. I think our view is that we feel that would be inappropriate.
THE COURT: If that is what you want to appeal on, why that is fine.
N.T. 3-5.

We have been unable to escape the conclusion that these statements are self-contradictory. On the one hand, the Court purported to recognize that appellant had properly not been charged with, much less convicted of, the rape, and that therefore the rape should not be counted against appellant. But on the other hand, the court made plain that it was counting the rape against appellant. Thus, at the resentencing hearing the court said:

I am not including it [the rape] in the sentence. I am only sentencing on the robbery, but what I am including it in is this whole panorama of the nature of the thing [emphasis added].

And at the hearing on the motion for reconsideration of sentence, the court said:

I am not taking it [the rape] into consideration as though he were also responsible for the rape, because that is a personal crime committed by that person [one of the other two men] and not within the contemplated scheme of the thing____ [emphasis added].

But then immediately after this, the court' said

I am considering that, yes [emphasis added].

“[I]f it reasonably appears from a review of the entire record that the sentencing court may have relied in whole or in part upon an impermissible consideration,” the sentence is invalid and must be vacated. Commonwealth v. Cruz, 265 Pa.Super. 474, 477, 402 A.2d 536, 537 (1979) (citing Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). Here, it does appear that the trial court relied in part upon an impermissible consideration, namely, the rape. For one may not expect his statement, that he is not considering a fact, to be accepted when it is followed by a statement that he is considering that fact. One of the principal purposes of the rule of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), that the sentencing judge must state of record the reasons for the sentence, is to prevent what occurred here. As the Court explained:

[Requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process. It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors.
Id., 474 Pa. at 129, 377 A.2d at 147 (footnote omitted).

While we are therefore obliged to vacate the sentence and remand for resentencing, we are not to be understood as intimating an opinion that the sentence was excessive.

Judgment of sentence vacated and case remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . Appellant failed to file a motion for reconsideration of sentence as required by Pa.R.Crim.P. 1410, but no waiver resulted, for the trial court had failed to advise appellant of his right to file such a motion. Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981).

      . Although an appeal had already been filed, the court still had jurisdiction to rule on the timely filed motion for reconsideration of sentence. Pa.R.App.P. 1701(b)(3).

      . Appellant also claims that the trial court "looked solely to the severity of the crime, and not the rehabilitative effect that had already been accomplished on the appellant.” Brief for Appellant at 7. This claim is waived, for it was not made in appellant’s motion for reconsideration of sentence, nor in his statement of questions involved. Pa.R.App.P. 2116; Pa.R.App.P. 302; Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979).