author: MONTEMURO, Judge: VAN der VOORT, Judge,

text:
    454 A.2d 141
    David KAISER and Sylvia Kaiser, housewife, Appellants, v. 191 PRESIDENTIAL CORPORATION and Zev’s Garage and Sam Penny. David KAISER and Sylvia Kaiser, housewife v. 191 PRESIDENTIAL CORPORATION and Zev’s Garage and Sam Penny. Appeal of Sam PENNY.
    Superior Court of Pennsylvania.
    Submitted May 11, 1981.
    Decided Dec. 10, 1982.

      Roger N. Huggins, Philadelphia, for Kaisers.
    E. Dyson Herting, Philadelphia, for Penny.
    J. Vincent Roche, Philadelphia, did not file a brief on behalf of 191 Presidential Corp., appellee.
    Before CERCONE, President Judge, and MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of judgment entered by the Honorable Matthew W. Bullock, Jr., of the Court of Common Pleas of Philadelphia County, arising from a negligence action tried before a jury from June 6, 1980 through June 11, 1980.

The posture of the case below involved a cause of action filed by David and Sylvia Kaiser (h/w) against 191 Presidential Corporation and Zev’s Garage, Inc. (hereinafter Zev’s) for personal injuries sustained by David Kaiser when he slipped and fell on an oil spot within the parking garage. Zev’s joined Sam Penny (hereinafter Penny) as an additional defendant alleging that oil leaking from Penny’s car, onto the garage floor, caused Kaiser’s injuries.

The case proceeded to trial. Before closing arguments were made to the jury, Zev’s entered into a settlement agreement with the Kaisers in the amount of $7,500.00. Subsequently, the jury rendered a verdict allocating the percentage of fault by each party under the Comparative Negligence Law and awarded $9,391.00 to David Kaiser and $1,000.00 to Sylvia Kaiser. In its trial worksheet, the court molded the verdict to properly allocate the percentages of liability and indicated that it would, at a later date, further mold the verdict to include delay damages. However, before the court had the opportunity to add on the delay damages, Penny also settled with the Kaisers in the amount of $8,712.50. On July 2, 1980, the Kaisers filed an order to mark the case as settled, discontinued and ended.

On September 23, 1980, the trial court entered this order, specifically providing that:

1. Judgment is entered on behalf of plaintiffs, David Kaiser and Sylvia Kaiser, against defendant, Zev’s Garage, Inc., in the sum of Seventy-Five Hundred Dollars ($7,500.00), pursuant to the settlement entered into before the Court.
2. Judgment is entered on behalf of plaintiff, David Kaiser, against defendant, Sam Penny, in the sum of Seventy-Eight Hundred Seventy-Four Dollars and Thirty-One Cents ($7,874.31) (which figure includes Three Hundred, Sixty-One Dollars and Fifty-One Cents ($361.51) delay damages) and on behalf of plaintiff, Sylvia Kaiser, against defendant, Sam Penny, in the sum of Eight Hundred Thirty-Eight Dollars and Forty-Nine Cents ($838.49) (which figure includes Thirty-Eight Dollars and Forty-Nine Cents ($38.49) delay damages).
3. Judgment, by way of contribution is entered on behalf of defendant, Zev’s Garage, Inc., against defendant, Sam Penny, in the sum of Sixty-Four Hundred Sixty Dollars and Ninety Cents ($6,460.90).
4. Judgment is entered on behalf of defendant, Sam Penny, against plaintiffs in the sum of Sixty-Four Hundred Sixty Dollars and Ninety Cents ($6,460.90).
The usual post-trial motions, including exceptions to this order, may be filed within twenty (20) days hereof.

The rationale for the entry of this order was explained by the trial court as follows:

In argument before the Court, the plaintiffs made their position clear: they wished to retain the $8,712.80 paid by Penny and then to sue and recover $7,500 from Zev.[] By so doing, they would ultimately recover $16,212.80 rather than the $10,391.00 awarded by the jury. For this reason, the plaintiffs were willing to mark the present case settled, discontinued and ended. They contend that the Court should respect their termination of the case. The Court, however, has not concurred with the plaintiffs’ position basically because we believe it is our responsibility, in the cause of judicial economy, to resolve all the issues presented by this court and not permit the case to spawn additional litigation. The plaintiffs have already expressed their desire to sue Zev on the $7,500 settlement. In our view, they should be successful in such a suit. In such a case, we believe Zev would have a right to sue Penny for contribution. If Penny had to make contribution to Zev, then Penny arguably would have a right to such reimbursement from the plaintiffs for money mistakenly paid.

The Kaisers and Penny have cross-appealed to this court from paragraphs three (3) and four (4) in the above order, respectively. Zev’s did not join this appeal.

Appellants contend that the order of judgment is a nullity in that the trial court could not, sua sponte, ignore settlement agreements entered into by the parties and rearrange amounts recoverable thereunder, to conform in effect, to the jury’s verdict. The court accomplished this task, on its own motion, by exercising certain parties’ rights to contribution and by correcting what it believed to be a mutual mistake of law concerning payments made under the settlement agreements. Appellants contend that the trial court was without subject matter jurisdiction to enter the order. For the reasons set forth below, we agree with the appellants and vacate the order of judgment.

Initially, we must discuss the appealability of the order entered by the trial court. The following facts will serve to illustrate that this appeal has given us the opportunity to observe a procedural quagmire.

The trial court entered its order on September 23, 1980 and provided for the filing of exceptions within twenty (20) days. Twenty-two (22) days later, on October 15, 1980, Penny filed exceptions. Neither Zev’s nor the Kaisers did so. Before the trial court ruled on Penny’s exceptions, both Penny and the Kaisers, on October 20, 1980 filed this cross-appeal. On November 28, 1980, the court entered an order denying Penny’s exceptions. This order, entered subsequent to the filing of this appeal, is a nullity. Pa.R.A.P. 1701(a); Yeager v. Long, 284 Pa.Super. 76, 425 A.2d 426 (1980). The question then is whether or not the order of September 23, 1980 is properly before us at this time.

It has been held that:

Parties to an action may compromise a pending legal claim by entering into a valid contract of settlement. Where such an agreement accompanies a discontinuance, the claim is forever barred and a new action cannot thereon be maintained. Sale v. Amber et al., 335 Pa. 165, 168-169, 6 A. 519 (1939). In essence the entry of an order to settle, discontinue, and end a proceeding has “the same effect as the entry of a judgment ” in any legal proceeding. Sustrik v. J. & L. Steel Corp., 413 Pa. 324, 326-327, 197 A.2d 44 (1964). All parties who sign such an order to settle, discontinue and end forever renounce their claims arising out of said action. Baumgartner v. Whinney, 156 Pa.Super. 167, 39 A.2d 738 (1944), as if the matter had been fully litigated. (Emphasis added)

Barson’s and Overbrook, Inc., v. Arce Sales Corp., 227 Pa.Super. 309, 312, 324 A.2d 467, 468 (1974).

It is well settled that an appeal will lie only from a final order, decree, or judgment unless otherwise permitted by statute. State Farm Mutual Auto Insurance Co., v. Morris, 289 Pa.Super. 137, 432 A.2d 1089 (1981). Gasper v. Gasper, 288 Pa.Super. 478, 432 A.2d 613 (1981). The order in the instant case specifically provided for the filing of exceptions. This appeal, however, was taken before the exceptions were decided by the trial court. On its face, therefore, the order is interlocutory. In spite of this procedural defect, we believe that Pa.R.A.P. 311(a)(1) provides the requisite jurisdiction.

Pa.R.A.P. 311(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as a right from:
(1) Affecting judgments. In orders opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.

Marking a case settled, discontinued and ended has “the same effect as the entry of judgment”. Barson’s and Overbrook, Inc., v. Arce Sales Corp., supra. We find that the subsequent order entered by the trial court on September 23, 1980 vacated, in part, the “judgment” as agreed to by the parties and thus, under Pa.R.A.P. 311(a)(1), the present appeal is properly before us.

We now reach the merits. The trial court’s basis for determining rights of contribution among the parties in this case rested upon the interpretation of the Uniform Contribution Among Tort-feasors Act (UCATA) as set forth in Dougherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956) and, Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1963). The holding in Dougherty v. Hershberger, supra, states that where one joint tortfeasor has voluntarily settled with the plaintiff, and the verdict rendered in the case exceeds the settlement figure, but by less than twice the amount of that figure, then the remaining tortfeasor(s) are liable only for the difference. However in Mong v. Hershberger, supra, this court held that the tortfeasor who originally settled with the plaintiff could seek contribution from the other tortfeasor(s) for amounts paid by him in excess of his proportionate liability.

The issue here, however, is not whether the court properly applied the rationale of the above cases to this lawsuit but whether the court had the power to assert the parties’ rights to contribution when there had been no motion filed or claim made by any party to effectuate that right. Clearly, the trial court exceeded its scope of authority.

Although the trial court was guided by the salutary proposition of avoiding additional litigation which could have spawned from the issues involved in this case, the court had neither the power nor the duty to resolve what it thought would be the subject of future lawsuits. It has been held that where a party fails to object or reserve any rights of contribution and/or indemnity upon the filing of an order to mark the case settled, discontinued and ended, that party cannot, at a later date, institute a suit to recover contribution. Barson’s and Overbrook, Inc. v. Arce Sales Corp., supra. There is even more reason to apply the rule here where not only were no objections, reservations or claims filed in the trial court, but no party has, at any time, sought to institute proceedings to effectuate rights to contribution. The court did so upon its own motion. If a party is barred from asserting his right to contribution where no claim has been filed, there is certainly no basis for a court to act as if one had been.

Further, it is fundamental that for a court to have authority to act it must have jurisdiction over the subject matter. Leveto v. National Fuel Gas Dist. Corporation, 243 Pa.Super. 510, 366 A.2d 270 (1976), In re Patterson’s Estate, 341 Pa. 177, 19 A.2d 165 (1941). Jurisdiction is the power of a court to enter into an inquiry on a certain matter. Lashe v. Northern York City School District, 52 Pa.Cmwlth. 541, 417 A.2d 260 (1980); Studio Theaters, Inc., v. City of Washington, 418 Pa. 73, 209 A.2d 802 (1968). Although there is no doubt that the court would have had jurisdiction to act if claims for contribution were made, since no such claims were filed, there was nothing for the court to act upon.

We hold, therefore, that where no objections, reservations or claims are filed to assert a right of contribution, it is not for the trial court to take upon itself the task of rearranging the plaintiff’s recovery to conform to what the eventual recovery will be if all rights are, in fact, exercised. It is the responsibility of the parties in the case to exercise those rights.

Order of judgment is vacated.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

The facts are set forth in detail in Judge Montemuro’s opinion for reversal. In brief, after the trial began, the Kaisers (the plaintiffs) agreed to settle with defendant Zev’s Garage. The jury returned a verdict on June 11, 1980. On July 2, 1980, the Kaisers and defendant Penny, without the consent of the trial judge, filed an “order” requesting the Prothonotary to mark the case “settled, discontinued and ended.” On September 23, 1980, the trial judge signed an “order of judgment” which specified: “The usual post-trial motions, including exceptions to the order, may be filed within twenty (20) days hereof.” Twenty-two days later, Penny filed exceptions. Appeals were taken on October 20, 1980 by both the Kaisers and Penny, after which the lower court denied Penny’s exceptions.

Judge Montemuro would find that the lower court lacked jurisdiction to enter the order of September 23, 1980, since no claims for contribution were made by any party. I would not reach this question. Pa.R.A.P. 302(a) provides: “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” See Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974) and Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). If any party was dissatisfied after the jury rendered its verdict, it could have filed post-trial motions within ten days. Pa.R.C.P. No. 227.1. If the parties wanted to settle the case notwithstanding the jury’s verdict, they could have filed a motion for judgment n.o.v., indicating the consent of whichever parties consented. After the lower court signed its order of September 23, 1980, the parties could have requested reconsideration of the order. Since the lower court indicated that it would entertain “exceptions” filed within twenty days, appellants should have applied to the lower court within that period of time. Pa.R.A.P. 1701(b) indicates the procedure to be followed. I would find that the failure of appellants to present their issues to the lower court in a timely manner now precludes them from raising their issues on appeal.

I would quash these appeals.

      . The action against 191 Presidential Corporation was later dismissed by agreement of the parties.

      . 42 Pa.C.S.A. § 7102.

      . The jury’s verdict apportioned the percentages of liability as follows:
      David Kaiser 10%
      Zev’s Garage 10%
      Sam Penny 80%

      . The trial worksheet contained the following disposition:
      June 11, 1980: Jury verdict in favor of husband-plaintiff against Zev’s Garage $939.10 and against Sam Penny $7,512.80 and in favor of wife-plaintiff against Zev's Garage $100.00 and against Sam Penny $800.00.

      . While Zev’s might have protested paying the amount due pursuant to that settlement agreement, they did not at any time petition the trial court to reconsider their liability under the agreement or file a claim for contribution.

      . 42 Pa.C.S.A. § 8321 et seq.

      . These exceptions were not included in the reproduced record.

      . One argument made by the Kaisers on appeal is that the settlement agreements precluded the lower court from entering its order of September 23, 1980. Pa.R.C.P. No. 230 provides that a voluntary non-suit shall be the exclusive method of voluntarily terminating an action, in whole or in part, by the plaintiff during the trial, and further provides that a non-suit cannot be obtained after the close of all the evidence. Rule 237 sets forth the procedure for obtaining judgment on the verdict by filing a praecipe with the Prothonotary (after notifying all parties). No rule provides a procedure for a party to terminate a case other than by having judgment entered, either on praecipe for judgment on the verdict, or by direction of the judge. In order to terminate the action after the jury’s verdict, the parties should have obtained the consent of the trial judge.
      Another argument made by the Kaisers, and accepted by Judge Montemuro, is that the lower court had no power, no “jurisdiction", to enter paragraph four of its order (in favor of defendant Penny), since Penny did not file a counter-claim in the case. Looking at the entire order, it seems clear that the overall effect of the order is simply to mold the verdict, however inappropriate the language of paragraph four may be standing alone. Certainly a trial judge has the power to mold a verdict.

      . I agree with Judge Montemuro’s conclusion that this order of November 28, 1980, having been entered subsequent to the filing of the appeals, was a nullity. Pa.R.A.P. 1701.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    454 A.2d 551
    Robert F. FEY; Hugh Dates and June E. Dates, Husband and Wife; Wyllis W. Mead, Jr. and Carol S. Mead, Husband and Wife, v. John M. SWICK and Forest Investment Corporation, Inc. Appeal of John M. SWICK.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed Dec. 17, 1982.

      David W. Swanson, Warren, for appellant.
    Patrick J. Kronenwetter, Emporium, for appellees.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

In this class action brought on behalf of 62 owners of residential lots, the trial court enjoined the construction of a 56 unit apartment complex on a ten acre tract of land owned by the appellant, John M. Swick. The principal issue on appeal is whether the members of the class who own lots in a separate subdivision can enforce building restrictions imposed upon the ten acre tract by a common grantor in a prior deed. The trial court held that the building restrictions were enforceable. We affirm.

The ten acre parcel of land which is the subject of this controversy was part of a 60 acre tract in Pleasant Township, Warren County, owned by Margaret E.I. Newbold. On August 7, 1950, Ms. Newbold recorded a plan for a 64 lot residential subdivision, to be known as the Irvine Plot, in the southeasterly portion of the larger tract. The plot plan was accompanied by a declaration imposing various restrictions, among them restrictions limiting the use of lots for residential purposes and authorizing only the erection of a single private residence upon each lot. Five years later, Esther L. Newbold, to whom title to the residue of the 60 acre tract had descended upon the death of her sister, Margaret, created an addition to the original subdivision. This First Addition, as it was called, consisted of 19 lots, all of which were subjected to the same building and use restrictions as the Irvine Plot. A Second Addition to the Irvine Plot was created in 1959. This addition contained 16 lots, including several lots from prior subdivisions, and was subjected to the same restrictions imposed upon the original subdivision lots. Both the First and Second Additions were located to the north of the original Irvine Plot.

The ten acre tract of land with which we are here concerned was conveyed by Esther L. Newbold to Sarah Swick, appellant’s mother, on December 23, 1958. In addition to land not previously subdivided, this tract contained four lots and a portion of a fifth from the First Addition. It lay generally in the southwest corner of the original tract of 60 acres. The grantor imposed upon the ten acres a series of restrictions and covenants intended to run with the land. Two of them provided:

1) The premises are conveyed for residence purposes only and no structure other than ... single private residences shall be erected, placed or permitted on the premises conveyed ....
10) Only one dwelling house shall be built on each 11,250 square feet of land.

The appellant acquired title to this ten acre tract by deed, dated January 10, 1964, from his mother. That deed contained the same restrictions as the Newbold-Swick deed of 1958.

The ten acre tract, although occupying the southwest corner of the original 60 acre tract, was irregular in shape and was separated from the initial Irvine Plot by seven lots. These lots were used to create a Third Addition by Sarah Irvine Roberts and John L. Welsh, Jr., devisees of Esther L. Newbold, who died in 1963. The lots in the Third Addition were subjected to the same building and use restrictions.

By two deeds in November, 1966 and February, 1967, Sarah Irvine Roberts and John L. Welsh, Jr. conveyed to Giles Schutte and wife a tract of land adjacent to the northern property line of appellant’s ten acre tract and the western boundary of the Second Addition. The deed for this tract contained no restrictions, and Schutte caused a 64 unit apartment complex to be constructed thereon.

Meanwhile, it should also be observed that in May, 1957, a tract of land located in the northeast corner of the 60 acre tract had been conveyed free of restrictions by Esther L. Newbold to Warren Industrial Development Authority. This tract, however, was not contiguous to the several residential subdivisions created in the southern part of the larger tract. The intervening land was conveyed by Roberts and Welsh to Alexander Courts, Inc. by deed dated November 1, 1967. This land was subsequently condemned for a limited access highway which now divides the northern and southern segments of the 60 acre tract. Appellant’s exhibit depicts the conveyances from and division of the 60 acre tract as follows:

On May 22, 1978, John L. Welsh, Jr. and Sarah Irvine Roberts executed in favor of John M. Swick, the appellant, an agreement purporting to assign to Swick the right to enforce the building and use restrictions which had previously been imposed upon the ten acre tract. When it became apparent that appellant intended to sell a portion of his ten acre tract to the other appellant, Forest Investment Corporation, for purposes of constructing thereon an apartment complex, the appellees, all of whom own residential lots in the Irvine Plot and the several additions thereto, commenced an action to enjoin such construction.

Appellants contend, on appeal, as they did in the court below, that the restrictive covenants cannot be enforced by appellees who, although they own property in an adjoining subdivision, were not parties to the deed by which the restrictive covenants were imposed upon the 10 acre tract in question. Appellants assert that the covenants were personal to the grantor and were extinguished by merger when the rights of enforcement were assigned to them by devisees of the grantor who had imposed the restrictions. We conclude that appellees are proper parties to enforce the restrictions.

“ ‘Restrictive covenants which restrict the use of property, although not favored by the law, are legally enforceable.’ Rieck v. Virginia Manor Co., 251 Pa.Super. 59, 63, 380 A.2d 375, 377 (1977).” Morean v. Duca, 287 Pa.Super. 472, 475, 430 A.2d 988, 990 (1981). “ ‘The right of a person not a party thereto to enforce in equity a restriction on the use of property depends on whether or not the restrictive covenant or agreement was imposed on the land owned by defendant for the benefit of the land owned by plaintiffs who are seeking to enforce the restriction____ The question is determined largely by the intention of the parties, and it must appear from the terms of the grant or from the situation of the parties and the surrounding circumstances that it was the intention of the grantor, when inserting the restriction, to create ... [an] equity ... which would inure to the benefit of complainant’s land and equitably be annexed as an appurtenance.’ ” Appeal of J. C. Grille, Inc., 181 Pa.Super. 456, 463-64, 124 A.2d 659, 664 (1956) quoting 26 C.J.S. Deeds § 167. Section 541 of the Restatement of the Law of Property, quoted approvingly and followed by the Pennsylvania Supreme Court in Mariner v. Rohanna, 371 Pa. 615, 617-18, 92 A.2d 219, 220 (1952), provides:

The persons initially entitled to enforce the obligation of a promise respecting the use of land are the promisee and such third persons as are also beneficiaries of the promise.

See also: P.L.E. Covenants § 21; Annot., 51 A.L.R.3d 556 (1973) (general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benefit of the one seeking to enforce them).

In order to establish themselves as third party beneficiaries of the restrictive covenants contained in the deed to appellant’s mother, appellees point to the general scheme of development in the southern part of the 60 acre tract being pursued by the Newbold family at the time the property was deeded to appellant. In the leading case of Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687 (1908), it was held that restrictive covenants may be enforced by other than the grantor or covenantee where they are imposed to carry out a general scheme for the development of real property. See also: R & R Realty Co. v. Weinstein, 4 Ariz.App. 517, 422 P.2d 148 (1966); Hayes v. Gibbs, 110 Utah 54, 169 P.2d 781 (1946).

The circumstances surrounding the development of the southern portion of the 60 acre tract evidenced a uniform scheme of development extending to and including the ten acre Swick parcel. The property conveyed to Sarah Swick was contiguous to, and in fact included a portion of the land contained in the Irvine Plot and the First Addition. The intention of Margaret and Esther Newbold with regard to the development of the subdivided property was clearly expressed. Only single private residential dwellings were to be constructed on the lots created thereby. Analogously worded restrictions were contained in the deed conveying the contiguous parcel to Mrs. Swick and now owned by appellant. These factors, we conclude, disclose an obvious intent by the grantor to include the ten acre parcel within the general scheme of single private residences imposed upon the entire southern portion of the 60 acre tract. That this general scheme of residential development did not include the northern portion of the tract does not defeat the clear intent of the Newbold sisters to so develop the southern portion.

Appellants argue further that an additional hearing should have been held to permit them an opportunity to produce evidence concerning the intent of Sarah Swick, appellants’ predecessor in title. This claim is without merit. The land was burdened by restrictive covenants imposed by Margaret and Esther L. Newbold. The intent of Sarah Swick, as evidenced by her acts, would not defeat the general scheme of development or the restrictions imposed by her grantor. Thus an additional hearing was unnecessary, and the court properly declined to hear such evidence.

Affirmed.

      . The restriction found in the declaration specifically provided:

        "1. The premises are conveyed for residence purposes only and no structure other than one single private residence shall be erected, placed or permitted on the premises conveyed----”


author: CERCONE, President Judge:

text:
    454 A.2d 555
    AMERICAN LEASING v. MORRISON COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 29, 1981.
    Filed Dec. 23, 1982.

      John W. English, Jr., Erie, for appellant.
    Ted J. Padden, Erie, for appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   CERCONE, President Judge:

This case involves the lease-purchase of a building located in the city of Erie, Pennsylvania. Following a non-jury trial, the court below found for American Leasing, (hereinafter American) plaintiff below, in the sum of $15,500 with interest. Exceptions were filed and dismissed. A praecipe for judgment was filed by American. Pursuant to direction by this Court, judgment was entered by lower court order nunc pro tunc on March 19, 1982. We affirm.

American leased a building from the Erie County Industrial Development Authority (hereinafter E.C.I.D.A.) which held legal title to the real estate, and, in turn, E.C.I.D.A. entered into a mortgage with the Marine Bank in Erie at a low interest rate. The Bank received tax-free interest payments from E.C.I.D.A. and American made payments to E.C.I.D.A. equal to the latter’s payments to the Bank. At the end of the lease, which would coincide with the maturity date on the note and mortgage, E.C.I.D.A. was to deed the building to American for nominal consideration. It was the aborted transfer of this agreement between American and E.C.I.D.A. to appellant Morrison Company (hereinafter Morrison) from American which gave rise to the instant action.

Morrison began to show interest in the real estate in early 1975 and on May 16, 1975, Gerald A. Ryan, President of American, met with John H. Morrison, President of Morrison. Also present was Thomas Doolin of Marine Bank. They toured the building and Morrison asked questions of both Ryan and Doolin regarding the lease arrangement. They then had a meeting over lunch at which time they arrived at an agreement to transfer the building from American to Morrison. That same day, Ryan, President of American, incorporated the agreement in a letter to Morrison. Five days later, Morrison replied to the letter and confirmed the agreement as stated in American’s letter.

E.C.I.D.A.’s approval of the transfer was obtained within a few weeks of the luncheon. Doolin had given approval of assumption by Morrison of American’s loan from Marine Bank. Attorney Toohey of American then attempted to schedule a closing date with Morrison, but Morrison began to delay. After many exchanges between both parties’ lawyers, American finally sent Morrison a notice that it was ready to close the transaction by tendering the deed on October 15, 1975. Morrison’s lawyer sent American a letter dated October 9, 1975, in which he asserted for the first time that Morrison did not consider that a valid contract had been formed. (However, no reason was offered for this position.)

Subsequently, when it was evident that Morrison was unwilling to perform, American assigned its lease to the Marine Bank for $183,000, which was $8,500 less than the amount which appellant Morrison had agreed to pay. This fact was stipulated to at trial; also stipulated to was the fact that American incurred the expense of four additional months’ rent at $1,750 per month, because of Morrison’s refusal.

Morrison now appeals the judgment of the lower court which was pursuant to a verdict for American. The court specifically found that the letters of the parties encompassed their agreement as to the lease purchase of the property, that the agreement satisfied the Statute of Frauds, and that no condition precedent was contemplated by the parties to Morrison’s duty as purchaser under the agreement.

In two of its arguments, appellant Morrison, urges failure of the contract because the two letters presented by appellee American as evidence of this contract do not comply with the Statute of Frauds. Morrison asserts that E.C.I. D.A. was the real titleholder to the property. Morrison further contends that because a representative of the E.C.I. D.A. did not sign one of the letters, that the Statute of Frauds was violated. So also was it violated, appellant Morrison contends, because neither letter contains the specificity required by a contract.

We agree with Morrison that because this case involves the transfer of an interest in land, it presents a transaction which is protected by the Statute of Frauds. That is, the terms purporting to convey an interest in land must be manifest in writing, in order to make the contract enforceable. The property must be adequately described, the consideration must be set forth, and the agreement must be signed by the party to be charged. Keil v. Good, 467 Pa. 317, 356 A.2d 768 (1976). The writing required by the Statute of Frauds need not be a contract of sale. All that is required is a memorandum containing the aforementioned elements. Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 113 A. 202 (1921).

However, we emphasize that the statute of frauds relating to interests in land is not the type of statute of frauds which renders oral agreements void under every circumstance. Cf. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972) (promise to answer another’s debt rendered void if not contained in writing.) See also Leonard v. Martling, 378 Pa. 339, 106 A.2d 585 (1954). Rather, the Statute of Frauds relating to interests in land constitutes a declaration of public policy, and consequently, can be waived by failing to raise the issue in new matter in a

responsive pleading. Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965); Bethlehem Steel Corp. v. Tri-State Industries, 290 Pa.Superior Ct. 461, 434 A.2d 1236 (1981). Therefore, for a defendant to invoke the Statute of Frauds in defending himself at trial, the defendant must first raise it in a responsive pleading under the heading “New Matter.”

This waiver rule has been strictly adhered to by our courts. In Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975), our Supreme Court affirmed the denial of the Statute of Frauds defense to the appellant by the lower court because appellant failed to set forth the defense, in a responsive pleading under the heading “New Matter”. The reason for the rule requiring notice of the intention to stand on the Statute of Frauds defense is evident.

The plaintiff is entitled to be informed, before proceeding to the expense and burden of the prosecution of a fruitless trial, whether defendant intends, upon plaintiffs proof of an oral contract, to claim the protection of the Statute of Frauds. Charles v. Henry, 460 Pa. at 678, 334 A.2d at 291.

Unlike the situation in Brown v. Hahn, supra, wherein our Supreme Court found that, despite the procedural error of raising the Statute of Frauds by preliminary objections rather than by New Matter, it would reach the merits of the defense anyway, in this case, we decline to consider Morrison’s Statute of Frauds defense. The record reveals that Morrison never pleaded the Statute of Frauds in its Answer, nor does any reference to it appear until the end of American’s case. Moreover, Morrison never filed the locally required Pre-Trial Narrative which is meant to apprise one’s adversary at bar about the particulars of one’s case, such as, witnesses, exhibits, etc. For the above reasons, we find appellant’s contentions which are based on the Statute of Frauds to be waived.

Appellant Morrison attacks the lower court’s computation of damages which amounted to an award of $15,-500.00 plus interest and costs to appellee American. However, because this issue was not raised by Morrison in its exceptions, we find this issue to be waived. Pa.R.C.P. 1038(d). The lower court has not even been afforded an opportunity to justify its award, since the challenge is raised for the first time only on appeal. Thus, we will not consider it. See Canada Dry Bottling Co. v. Mertz, 264 Pa.Superior Ct. 480, 400 A.2d 186 (1979); Birdman v. Medley, 261 Pa.Superior Ct. 23, 395 A.2d 285 (1978).

Finally, we address appellant’s contention that the contract was not breached because of the existence of two conditions precedent: that appellant Morrison be able to assume the approximately $92,000 on the first mortgage with E.C.I.D.A. and that Morrison be able to assume a note debt of American in the amount of $75,000 at a rate of 672% before a contract would be formed. A review of the record causes us to conclude that Morrison’s contention is not supported by the facts.

In construing an agreement, it is fundamental that the intention of the parties is controlling, and that intention must be ascertained from the entire instrument. Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951) in Sharp v. McKelvey, 196 Pa.Superior Ct. 138, 172 A.2d 580 (1961). No particular form of words is necessary to make a term of an agreement a condition of a duty; and, in general, the usual rules of contract interpretation should be employed in light of the general purpose of the agreement. Restatement, Second, Contracts § 226, Comment a (1981).

American entered an exchange of letters at trial as proof of its contract with Morrison. The pertinent sections of the two letters, the first written and signed by G.A. Ryan, President of American Leasing Company on May 16, 1975, and the second written and signed by John H. Morrison, President of Morrison Company on May 21, 1975 are:

[dated May 16, 1975]
“I would like to confirm that we reached an agreement on the sale of our building at 2118 East 30th Street for approximately $191,500.00 consisting of about $13,000.00 in cash plus assumption of approximately $92,000.00 of debt thru ECIDA plus $75,000.00 of debt to Marine National Bank plus transfer of your land on East 12th Street with an appraised value of $11,500.00.” and [dated May 21, 1975]
“You are correct. The second paragraph of your May 16th letter does confirm the agreement we reached on the sale of your building at 2118 East 30th Street. As I see it, all we need do now is get the financing required at the agreed upon rates and we are on our way to completing the transaction.”

In Support of its contention of the existence of a condition precedent regarding Morrison’s being able to obtain a 6V2 per cent interest rate on its loans, appellant Morrison cites the last sentence of its letter: “As I see it, all we need do now is get the financing required at the agreed upon rates and we are on our way to completing the transaction.”

The issue for our determination, then, is whether that sentence was intended by the parties to be a condition precedent to Morrison’s duty to accept tender of the deed to the property.

The general rule remains that where an act or event mentioned in a contract is not expressly made a “condition precedent,” it will not be so construed, unless such clearly appears to be the intention of the parties. Mellon Bank, N.A. v. Aetna Business Credit Corp., 619 F.2d 1001 (3rd Cir.1980); Sharp v. McKelvey, supra; Britex Waste Co. v. Nathan Schwab and Sons, 139 Pa.Superior Ct. 474, 12 A.2d 473 (1940). However, stating the general rule does not resolve the problem in this case in which American contends there was no such condition and Morrison argues the opposite. The lower court found no condition precedent was expressed by the sentence from Morrison’s letter because it contained no specific rate of interest.

While the absence of a definite amount of interest in a sentence purporting to be a condition precedent weighs against the fact, we additionally look at the statement as it lay in the context of the business relationship between appellant and appellee.

As there was no assertion by either party that the two letters integrated their entire agreement, all of the expressions of the parties’ intention must be considered to determine the terms of the agreement. To determine whether either party knew or had reason to know the meaning given to the expression by the other, the court considers such evidence as the admissions of the parties, conduct from which knowledge could be inferred, proof of information or statements to the parties, usages with which the parties were probably familiar and all other surrounding circumstances. 1 Corbin § 104 (1963), cited in Murray on Contracts, § 112 (1974).

As the evidence at trial established in the light most favorable to the verdict winner, a representative of Marine Bank was present during the luncheon on May 16, 1975, during which the agreement between the parties was negotiated. He assured Mr. Morrison that the Marine Bank would allow him to assume American’s $75,000 loan. Ryan, of American, testified that no specific interest rate was discussed at the luncheon. In addition, a lease arrangement with E.C.I.D.A. was formulated three weeks after the luncheon. However, Morrison preferred to attempt to obtain financing at a lower rate, that is, at the &lh% enjoyed by American, rather than at the 8V4% offered by Marine Bank and E.C.I.D.A.

Appellee American presented evidence both documentary and oral, that at no time did appellant Morrison represent difficulties with an undesirable interest rate as the reason Morrison was delaying the closing date on the property. On cross examination, John Morrison, President of appellant Morrison Company, admitted that this reason appears nowhere in the correspondence between the representatives of both parties. Other reasons for Morrison’s inertia were offered, but not the interest rate problem. In addition, counsel for Morrison during the summer of 1975 testified that he never mentioned that in Morrison’s understanding, an interest rate of 672% was necessary before the transaction was completed.

James Toohey, lawyer for American, testified from notes that he took during a phone conversation with the lawyer for Morrison, Jonathan Rocker, on September 9, 1975. Rocker told Toohey that Morrison was having three problems with the agreement: “one, the present lease (see footnote 10); two, the deal was never consummated; three, do not want the building, very poor investment.” No mention was made of the interest rate in this conversation.

A consideration of these actions by Morrison after the luncheon during which, as American asserts, an enforceable contract with no condition precedent was agreed on, persuades us that American’s version of the events more nearly describes what did occur. As our Supreme Court has held, the actions of the parties pursuant to an agreement between them are significant and substantial evidence in determining whether they intended to be bound by the agreement. Fenestra, Inc. v. John-McShain, Inc., supra; Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). Morrison’s conduct after the agreement does not support its contention at trial and on appeal that its procurement of loans at 672% was a condition precedent to its duty under the contract.

Therefore, for all of the above reasons, the judgment is affirmed.

      . The statute reads in pertinent part:
      ... [A]ny uncertain interest of, in, or out of any ... lands, ... made or created by ... parol, and not put in writing, and signed by the parties, so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect,
      Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

      . Pa.R.C.P. 1030 requires this. Additionally, Pa.R.C.P. 1032 provides that, subject to certain exceptions not herein applicable, "A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply.”

      . See Zvonik v. Zvonik, 291 Pa.Superior Ct. 309, 435 A.2d 1236 (1981); Axler v. First Newport Realty Investors, 279 Pa.Superior Ct. 14, 420 A.2d 720 (1980); Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976).

      . In Brown v. Hahn, supra, our Supreme Court held that the Statute of Frauds requiring a writing for land contracts creates a waivable defense which must be raised in new matter. At any rate, even if the statute created a bar that was non-waivable, it would be necessary to raise it first in preliminary objections. See also Goldman et al. v. McShain, 432 Pa. 61, 247 A.2d 455 (1968).

      . Appellant does not challenge the existence of a contract apart from the Statute of Frauds issue. We speculate that his omission stems from a misunderstanding of the significance and purpose of the Statute of Frauds as it relates to oral contracts for the transfer of interests in land. Even if we were to find that a valid oral agreement had been entered into, the result would be a denial only of the remedy of specific performance of the contract. Cf. Weir v. Rahon, 279 Pa.Superior Ct. 508, 421 A.2d 315 (1980) (disappointed vendee recovered losses incurred on faith of an oral contract to purchase land). (See also Rappeport, "Contracts," 20 U. of Pitt.L.R. 293, 296-300 (1958)). At any rate, plaintiff-American did not even seek specific performance of the within agreement, but rather, its damages incurred because of its reliance on the agreement.

      . $8,500.00 of this amount represents the difference between the sale price negotiated by American and Morrison and the actual amount received by American in its sale to Marine Bank. $7,000.00 is four months rent at $1,750.00 paid by American upon Morrison’s default.

      . Any number of documents can be taken together to make out the necessary written terms of the bargain provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract. Volume 4, Williston on Contracts, Third Edition, page 128. Haines v. Minnock Construction Co., 289 Pa.Superior Ct. 209, 215-16, 433 A.2d 30, 33 (1981).

      . See, Childres and Sales, "Restatement 2d and the law of Conditions in Contracts,” 44 Miss.L.J. 591 (1973).

      . “It is hornbook law that the findings of a chancellor or a court sitting without a jury, if affirmed by a court en banc, have the force of a jury verdict and will not be overturned, absent an error of law, if there is evidence to support them.” Fenestra, Inc. v. John McShain, Inc., 433 Pa. 137, 139, 248 A.2d 835, 836 (1969).

      . Morrison was unable to cancel its lease on another property and this fact was advanced by Morrison for its reluctance to proceed with the agreement. However, this stumbling block was removed when American offered to assume the troublesome lease in August of 1975. Morrison’s attempts to get out of its current lease continued through July of 1975, a fact which indicates its understanding that it was bound under the agreement of May 16, 1975.

      . We do not find the use of the word "approximately” to modify the amount stated as the agreed upon price in the letter of American to be fatal to the fact of a contract. In fact, at the time of trial, Morrison stipulated to the purchase price for purposes of the damages in an amount equal to that stated in the American letter.


author: PRICE, Judge:

text:
    454 A.2d 561
    COMMONWEALTH of Pennsylvania, Appellant, v. Matthew M. GANNON, Jr.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Dec. 23, 1982.

      Kristine F. Hughey, Assistant District Attorney, Media, for Commonwealth, appellant.
    Richard H. Anderson, Media, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PRICE, Judge:

This is an appeal by the Commonwealth from the order of the court below suppressing evidence which was seized pursuant to two warrants executed at appellee’s residence and at appellee’s bank. We reverse the lower court’s suppression order.

On August 16, 1979 a search warrant was issued to search the premises of 314 W. 21st Street, Chester, Pennsylvania. The affidavit reports allegations of Lillian Tonden, 72, that her bank accounts at Fidelity Bank had been depleted by more than $30,000 and that more than one thousand stock shares, valued at $50,000 had been redeemed by her granddaughter, Patricia Gannon, within the past 18 months without Mrs. Tonden’s approval or consent. According to the affidavit, Mrs. Tonden, a widow, placed her granddaughter’s name on her savings and checking accounts at Fidelity Bank to enable Mrs. Gannon to assist the elderly woman with her banking needs. Mrs. Gannon was given permission to withdraw money for the benefit of Mrs. Tonden only. After a brief visit to the hospital, Mrs. Tonden was informed by a friend that Mrs. Gannon had been spending “plenty of money.” Mrs. Tonden checked her accounts at Fidelity and discovered that nearly $30,000 had been withdrawn. At that point she made inquiries to Sun Oil Company of whose stock she held 1322 shares. She was informed that over 1000 shares (valued at approximately $50 a share) had been redeemed by Mrs. Gannon.

Mrs. Tonden also told police that when she confronted her granddaughter concerning the bank accounts Mrs. Gannon returned $22,000. Mrs. Tonden did not confront her concerning the redeemed stock.

The affidavit also provides details concerning the police investigations following Mrs. Tonden’s report. In August, 1979, Elizabeth Larken told the investigating detective that she had handled a transaction in which Patricia Gannon had sold 300 shares of the Sun Oil stock. Furthermore, Mrs. Tonden’s attorney was questioned and reported that he had received confirmation from the bank of the depleted sum in Mrs. Tonden’s savings account. Thereafter, under Mrs. Tonden’s instruction, he placed a freeze on the accounts.

Based on this information the first warrant in question was issued for the home of Mrs. Gannon at 314 W. 21st Street, Chester, Pennsylvania authorizing the search for and seizure of “[c]opies of all bank records, statements, cancelled checks, etc., from February of 1978 to present time.” The execution of the warrant produced various bank receipts, records of transactions with Sun Oil Stock and papers referring to automobile purchases and loans.

The second warrant was issued pursuant to the identical probable cause affidavit four days later for the premises of Southeast National Bank, Operation Center, Concordville, Pennsylvania, authorizing the seizure of “Checks, Deposit Slips and any other bank documents regarding the account in the name of Matthew M. Gannon, Jr. and Patricia Ann Gannon, 314 W. 21st Street, Chester, Pennsylvania^] Master # 0508306-8-00.”

On January 2, 1980 appellee Matthew M. Gannon, Jr. was arrested and charged with 121 counts of theft and conspiracy in connection with the depletion of his wife’s grandmother’s assets. Gannon filed an omnibus pre-trial motion on which a hearing was held. On April 17, 1980, the Honorable Robert A. Wright of the Court of Common Pleas of Delaware County entered an order suppressing all evidence seized in the execution of both warrants.

The Commonwealth argues that the issuing authority properly determined probable cause to support the search for banking records in defendant’s residence. We agree.

The lower court found the affidavit insufficient in several respects. Specifically, Judge Meade objected to the affidavit because it failed to set forth any facts to prove 314 W. 21st Street was the residence of Patricia Gannon, because it failed to mention Matthew Gannon’s name, and because it failed to offer any proof that the bank receipts would indeed be found at the residence. We do not agree with the court below that these factors caused the magistrate’s finding of probable cause to be unreasonable and, therefore, violative of the Fourth Amendment of the United States Constitution.

The general definition of probable cause sufficient to satisfy the Fourth Amendment was stated by the Pennsylvania Supreme Court in Commonwealth v. Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972): “Probable cause exists where the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a search should be conducted.”

The requirements of a probable cause finding are tempered by the courts so as not to impede the goals and obligations of law enforcement. Accordingly, “affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial.” Commonwealth v. Frye, 242 Pa.Superior Ct. 144, 148, 363 A.2d 1201, 1203 (1976), and a preference is accorded by the courts to the issuing authority in doubtful or marginal cases. Id., 242 Pa.Superior Ct. at 150, 363 A.2d at 1203. In reaching our decision in the instant case we are especially mindful that the courts are not to take an overly technical approach on evaluating the information supplied to the magistrate in a search warrant application but should evaluate it in a common sense and practical manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Commonwealth v. Sangricco, 475 Pa. 179, 379 A.2d 1342 (1977); Commonwealth v. Stamps, 260 Pa.Superior Ct. 108, 393 A.2d 1035 (1978), aff'd., 493 Pa. 530, 427 A.2d 141 (1981); Commonwealth v. Frye, supra.

In Commonwealth v. Frye, supra, marijuana seized during the execution of a search warrant for a residence was suppressed by the lower court judge. On appeal by the Commonwealth the appellees emphasized the fact that the affidavit was devoid of any statement that the informant observed marijuana at the Frye residence or that the informant had drawn any such inferences. “Rather it was the police and the issuing authority who concluded that [the defendant] was storing marijuana in his residence.” Id. 242 Pa.Superior Ct. at 148-149, 363 A.2d at 1204. This court, however, did not find this to be fatal to the validity of the search warrant: “Was there probable cause to support such a conclusion? Common sense compels an affirmative answer.” We reasoned that since marijuana has to be secreted in a safe place, “a man of reasonable caution would be warranted in believing that marijuana was being kept at Frye’s residence.” Id.

Likewise, in the present case, it is only a matter of common sense to assume that the most likely place to find the bank records would be in Mrs. Gannon’s residence. “[T]he law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that the affidavit information preclude all possibility that the sought after article is not secreted in another location.” Commonwealth v. Forster, 253 Pa.Superior Ct. 433, 437-438, 385 A.2d 416, 418 (1978).

As regards the ownership of the residence to be searched, the fact that the affidavit offered no proof that Patricia Gannon owned or resided at 314 W. 21st Street does not render the affidavit, when taken as a whole, insufficient to establish probable cause. Again, a common sense reading compels the assumption that under these circumstances Mrs. Gannon’s grandmother was aware of her residence. Granting the issuing magistrate the deference to be accorded in marginal cases, we cannot accept the finding of probable cause violative of the Fourth Amendment for this reason.

The appellee also contends, and the lower court agreed, that the evidence seized at the residence must be suppressed because the supporting affidavit made no mention of appellee Matthew Gannon. We, however, agree with the Commonwealth’s analysis of this issue and hold that a search warrant need not identify a specific individual who is the object of the search but need only establish that probable cause exists to search the premises and to seize the identified objects. By so holding we follow the language of the United States Supreme Court in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525, reh. den., 439 U.S. 885, 99 S.Ct. 231, 58 L.Ed.2d 200 (1978) in which Justice White wrote that probable cause as related to search warrants means a reasonable basis for belief that criminally related objects are in the place which the warrant authorizes to be searched:

The critical element in a reasonable search is not that the owner of the property is suspected of crime but that the specific 'things’ to be searched for and seized are located on the property to which entry is sought.

Id. 436 U.S. at 557, 98 S.Ct. at 1977.

Therefore, we find no basis for suppressing the bank receipts from the joint bank account of Matthew and Patricia Gannon on the grounds that appellee was not named in the probable cause affidavit. We find there was sufficient probable cause to believe that banking records evidencing the theft of Mrs. Tonden’s missing funds would be found at 314 W. 21st Street. This is enough to sustain the issuance of the warrant.

The lower court also found that any documents concerning the Gannons’ auto purchases which were seized should be suppressed because they were not particularly described in the warrant. Slip op. at 3, 7.

In Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971), the search warrant in question specified a “pocket knife” whereas a “kitchen knife” was seized. The court ruled that to suppress the kitchen knife would be hyper-technical and contrary to the commonsense approach. Id., 446 Pa. at 73, 285 A.2d at 514. The court noted that several courts have ruled that “where the items to be seized are as precisely identified as the nature of the activity permits and an exact description is virtually impossible, the searching officer is only required to describe the general class of the item he is seeking.” Id. We find this rule properly applicable in the present case.

We are convinced that the detectives investigating Mrs. Tonden’s report were not conducting a random, exploratory search but were conducting a search in good faith for records relating to the missing assets. “It is permissible to seize things other than those described in the search warrant if they have a reasonable relation to the purpose of the search.” Commonwealth ex rel. Stoner v. Myers, 199 Pa.Superior Ct. 341, 345, 185 A.2d 806, 808 (1962). Documents pertaining to automobile purchases are reasonably related to the financial records of a person and her spouse, and therefore, the seizure of these documents in execution of the warrant was not unreasonable.

We also reject appellee’s assertion that the affidavit failed to mention any dates or set any time frame in which to place the alleged criminal activity, causing the search warrant to be invalid due to staleness. In Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971), the Pennsylvania Supreme Court articulated the constitutional requirements regarding the necessity that a search warrant be based on current information:

In order for the issuance of a search warrant to be constitutionally valid, the issuing officer must reach the conclusion that probable cause exists at the time he issues the warrant. Such a decision may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued.

Id., 444 Pa. at 113, 281 A.2d at 899.

We disagree that this rule commands suppression of the evidence seized during the execution of the warrant for the Gannon residence. Specifically, the warrant was not, in fact, devoid of a time frame. The police officer described the items to be seized as “[cjopies of all bank records, statements, cancelled checks, etc. from February of 1978 to present time.” The limit placed on the dates of the records authorized to be seized coincided with the death of Mrs. Tonden’s husband in February of 1978, shortly after which Mrs. Tonden put Mrs. Gannon’s name on her bank accounts and, according to the affidavit, began missing money. “Evidence of criminal activity at some prior time will not support a finding of probable cause on the date that the warrant issues unless it is also shown that criminal activity continued up to or about that time.” Commonwealth v. Hagen, 240 Pa.Superior Ct. 444, 450, 368 A.2d 318, 321 (1976). We are satisfied that the warrant and its accompanying affidavit presented probable cause to believe that criminal activity had occurred since February 1978 and was continuing.

We hold that the warrant for the Gannon dwelling was issued upon probable cause and that the evidence seized therein in execution of the warrant is admissible.

The second issue involved in this appeal is whether the seizure of bank records from the joint account of Matthew M. Gannon and Patricia Ann Gannon at the Southeast National Bank, Concordville, Pennsylvania was constitutionally reasonable.

The lower court held that the warrant to search the bank was invalid because the affidavit did not establish probable cause and because evidence seized pursuant to the warrant amounted to fruit of the poisonous tree under the rule of Wong Sun v. United States, 371 U.S. 471, 488, 489, 83 S.Ct. 407, 417, 418, 9 L.Ed.2d 441 (1963). Slip op. at 8-10. We disagree.

Our finding that the warrant for the Gannon residence was valid disposes of the issue of whether the evidence gathered at the bank was fruit of the poisonous tree.

However, the Pennsylvania Supreme Court in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. den., DeJohn v. Pennsylvania, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980), held that under Article 1, Section 8 of the Pennsylvania Constitution “bank customers have a legitimate expectation of privacy in records pertaining to their affairs kept at the bank.” Id., 486 Pa. at 44, 403 A.2d at 1291. Therefore, when law enforcement officers search and seize bank records, the activity must be adjudged to be reasonable and supported by probable cause.

In the case presently before us the same affidavit presented for the warrant for the Gannon residence was presented for the warrant for the Southeast National Bank. Appellees argued and the lower court stated that this affidavit was insufficient to support a finding of probable cause because it never mentioned Matthew M. Gannon, Jr., the Southeast National Bank or how the police officers obtained information leading them to the Southeast National Bank. We do not find these arguments compelling and we, therefore, reverse the lower court’s order to suppress the bank records.

We are convinced that an overtechnical reading of this particular warrant would not serve the interests of justice or the purpose and policy of the exclusionary rule. As always in these types of cases this court is presented with the problem of balancing competing social values: “deterrence of police misconduct, on one hand, and conviction of guilty persons, on the other.” Commonwealth v. Bradshaw, 290 Pa.Superior Ct. 162, 167, 434 A.2d 181, 183 (1981). We cannot find any abuse of police power in the seizure of these records that would be deterred by suppressing evidence of alleged criminal conduct.

The argument asserted by appellee is in substance the rule provided in Pa.R.Crim.P. 2003(a). The rule mandates that the issuing magistrate look only to the four corners of the affidavit to make a finding of probable cause. In Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980), cert. den., Luddy v. Pennsylvania, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981), we stated with regard to this rule:

However, it is also clear that search warrant affidavits are to be read in a sympathetic, common sense manner, with due regard for the hectic conditions under which they are often prepared. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Commonwealth v. Billock, 221 Pa.Super. 441, 289 A.2d 749 (1972). Furthermore, an affidavit is to be considered as a whole____

Id. 281 Pa.Superior Ct. at 554, 422 A.2d at 608.

As in Luddy, the affidavit as written did clearly imply that the police were investigating the disappearance of a considerable amount of assets and were specifically investigating the financial records of Patricia Gannon. Common sense would tell us that such an investigation would also lead into financial records Mrs. Gannon held jointly with her husband, the appellee. Inclusion of greater detail in the second affidavit (e.g., the name of the Southeast National Bank, an up-to-date explanation of the investigation) would obviously have strengthened the entire statement. We cannot emphasize too strongly the advisability of detailed affidavits. In the present case, however, “it does not appear that [the police officer’s] failure to do so was with any intent to mislead ... ”, Commonwealth v. Luddy, supra, 281 Pa.Superior Ct. at 556, 422 A.2d at 609, or with any intent to conduct a groundless and purely exploratory search. The warrant itself specifically identified the name and number of the account to be searched. Keeping in mind the warrant’s presumptive validity, we find the search of the joint bank records of Matthew and Patricia Gannon reasonable and within the confines of the Constitutions of the United States and the Commonwealth of Pennsylvania.

The order of the trial court suppressing the evidence seized in execution of the two search warrants as well as the “flow chart” prepared by the Commonwealth explaining the alleged diversion of funds is reversed and the matter remanded for proceedings consistent with this opinion. Jurisdiction is not retained and the parties will have their full rights as to appeal upon conclusion of the further proceedings.

      . The Commonwealth may appeal from a pre-trial ruling where the practical effect is to terminate the prosecution and where it appears that the order suppressing evidence will substantially impair the prosecution of the case because the Commonwealth may not present all of its available evidence. Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978), Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977), Commonwealth v. Kunkel, 254 Pa.Superior Ct. 5, 385 A.2d 496 (1978).

      . See also, Commonwealth v. Rambo, 250 Pa.Superior Ct. 314, 323, 378 A.2d 953, 958 (1977), rev’d. on other grounds, 488 Pa. 334, 412 A.2d 535 (1980) ("if a common sense reading of the affidavit supporting a search warrant indicates that sufficient information was provided the issuing magistrate to show the probability of illegal activity or contraband at the place to be searched, our court will not find the warrant invalid.”)
      The lower court cited Commonwealth v. Morris, 265 Pa.Superior Ct. 589, 402 A.2d 702 (1979) in support of its findings. There we stated that it would be mere guesswork to assert in an affidavit that a young boy’s B.B. gun would be found in a certain place. We find Morris to be distinguishable from the present case. It is far more reasonable to assume an adult woman’s banking receipts and records are in her home than it would be to assume the location of the toy in Morris.

      . Rule 2003(a) provides:
      (a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.


author: HESTER, Judge:

text:
    454 A.2d 567
    COMMONWEALTH of Pennsylvania v. Richard MARCH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1982.
    Filed Dec. 23, 1982.

      Norman Krumenacker, Jr., Ebenburg, for appellant.
    Timothy P. Creany, Assistant District Attorney, Eben-burg, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

On September 26, 1980, the appellant, Richard March, was convicted by a jury of criminal homicide and criminal conspiracy as a result of the fatal shooting of Craig Mick-ens which occurred in the City of Johnstown, Cambria County, Pennsylvania, March 29, 1980. Written motions for a new trial and in arrest of judgment were denied, and on June 9, 1981, the appellant was sentenced to life imprisonment in a State Correctional Institution. This appeal from that judgment of sentence followed.

During the late evening hours of March 28, 1980 and the early morning hours of March 29, 1980, Craig Mickens was dancing and socializing with friends at Rod’s Pub in the Prospect section of Johnstown. Upon completing a dance with his girlfriend, Craig walked over to the pool table and was accosted by Mark March, the appellant’s brother. No witnesses could attest to the precise exchange of words between both men; nevertheless, several witnesses observed the victim raise both hands in the air in an apparent attempt to avoid strife. Craig then walked away; however, upon being tapped on the shoulder, he turned around and Mark struck him in the face. A fistfight ensued.

The appellant joined in the struggle. After they were separated by other bar patrons, the three men eventually moved to the area immediately around the barroom door. As Craig stood in the doorway, the appellant fired a single shot within close range from a .25 caliber automatic handgun that pierced the victim’s heart and caused his death.

The appellant argues first that the Information filed by the District Attorney’s Office was invalid for failure to comply with the signature provisions of Rule 225(b) of the Pa.R.Crim.P. Rule 225(b) specifically requires that “the Information shall be signed by the attorney for the Commonwealth ____” The particular Information filed here contained only the rubber stamped facsimile of the Cambria County district attorney’s signature. .No attempt to identify the district attorney by a handwritten signature, initials or mark was made by either the district attorney himself or designated personnel.

The appellant submits two decisional sources in support of his position that a stamped facsimile alone does not satisfy the signature requirement of Rule 225(b). Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978); Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981). The Belcher court was confronted with an Information that bore no signature whatsoever. Neither initials nor a stamped facsimile was applied; the signature line was completely blank. The court proceeded to find the Information void ab initio since an unsigned Information gives no indication that anyone evaluated the propriety of instituting criminal proceedings. Furthermore, the Belcher court concluded that a district attorney’s failure to sign a Bill of Information was irremediable and that the defendant’s choice to raise the defective Information for the first time on appeal, instead of in pre-trial motions, does not constitute a waiver of the right to a dismissal of charges. A signed Information, according to Belcher, supra, is mandatory, and not simply directory.

The decision in Emanuel, supra, is closely akin to the facts presented here. Ten Bills of Information were filed against the defendant in Emanuel, supra, with each Bill containing only a rubber stamp facsimile of the signature of the district attorney in Delaware County. The Emanuel court was similarly faced with the task of rendering an interpretation of the word “signed” as used in Rule 225(b). The court eventually concluded that the Bill of Information displaying a rubber stamp facsimile does not satisfy the requirement of a “signed” Information under Rule 225(b). This decision emanated in part from the policy espoused in Belcher, supra, that only a signed Information could insure the “authenticity and reliability” of the Bill. The Emanuel court also reasoned that the validity of stamped Bills of Information would surely lead to rampant and indiscreet use of rubber stamps by unauthorized employees in the district attorney’s office.

In accordance with Emanuel, supra, we agree with the appellant to the extent that a mere rubber stamp facsimile of the district attorney’s signature does not satisfy the requirements of Pa.R.Crim.P. 225(b). Indeed, the recent decision of Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982) expressed the degrading qualities of a rubber stamp facsimile.

It would demean the signature of this fateful document if we were to interpret the words “shall be signed” to permit affixing a rubber stamp facsimile to the Information. We would thus reduce the required attestation to a mere clinical mechanism no different or more deliberative, for example, than assigning the Information a file number for office convenience. It would be simpler and just as meaningful to have the name of the attorney for the Commonwealth preprinted on the Information form. Id., 306 Pa.Superior Ct. at 403, 452 A.2d at 787.

While Veneri, supra, and Emanuel, supra, are commensurate to the extent that they both hold that a rubber stamp facsimile violates Rule 225(b), Veneri, supra, steps outside the purview of Emanuel, supra, by addressing the effect of a Bill of Information bearing only a rubber stamp facsimile. Belcher, supra, ruled that an unsigned Bill rendered itself void ab initio, thereby permitting the defendant to raise the defect at any time during trial court or appellate court proceedings for the purpose of acquiring a dismissal of the charges. Veneri, supra, overruled the Belcher, supra, decision to the extent of the void/voidable issue through a further holding that the signature mandate of Rule 225(b) is directory only. The absence, then, of a “signature” as defined in Emanuel, supra, merely renders the Information voidable; a defendant’s failure to raise the defect in a pre-trial motion constitutes a waiver and immunizes the unsigned information from a Rule 225(b) attack at any stage following pre-trial proceedings.

We are persuaded by the holdings and rationale of Veneri, supra. While we condemn the practice of issuing unsigned Bills of Information, as they have been defined in Emanuel, supra, we are compelled to agree with Veneri, supra, in believing that no prejudice is suffered by an accused once discovery is completed and the trial proceedings have begun. A dismissal of charges and a discharge of an accused or, more particularly, an imprisoned felon, are alarmingly unreasonable and unnecessary consequences of an unsigned Bill of Information. The appellant, here, raises the rubber stamp facsimile for the first time on appeal; his refusal to raise it in pre-trial motions precludes discharge.

Secondly, appellant argues that the Commonwealth’s exhibit # 3, a shell casing retrieved from the threshold area of the bar, and exhibit # 4, the .25 caliber bullet removed from the victim’s body, were improperly admitted into evidence due to a break in the chain of custody. Appellant makes reference here to the absence of any testimony by the receptionist who received both exhibits at the State Police Crime Laboratory before releasing them to Trooper Mayfield, a ballistic’s expert. It has been held that gaps in testimony concerning chain of custody do not affect the admissibility of otherwise relevant physical evidence, instead, such deficiencies only affect the weight to be given such evidence. Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977); Commonwealth v. Bolden, 486 Pa. 383, 406 A.2d 333 (1979). The only question, then, is whether the shell casing and bullet were relevant items of evidence. We find support in the record that indeed they were relevant to the appellant’s guilt or innocence. It was therefore, not reversible error for the lower court to admit the shell casing and bullet into evidence.

Next, the appellant argues that Robert Wingard, as a lay witness, could not properly attest to what he believed to be a dark-colored .25 caliber automatic pistol carried by the appellant several months prior to the slaying. Robert Wingard was the instructor of a CETA-sponsored auto body repair class in which the appellant was enrolled as a student in the Autumn of 1979. During a class session in January, 1980, the appellant showed a handgun to Mr. Wingard and was instructed to remove it from class and place it in his vehicle. The appellant complied with Mr. Wingard’s command.

Mr. Wingard further testified that he handled the appellant’s weapon and he was able to identify it as a .25 caliber automatic due to the fact that he, himself, owned a .25 caliber automatic at that time. We do not believe that this specific identification of the handgun, particularly in light of Mr. Wingard’s familiarity with that particular type of handgun, required special knowledge to which only a firearm’s expert could attest. Lay witnesses may testify to facts and conclusions drawn from their personal knowledge. See Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978).

The final issue that we are compelled to address is whether the lower court erred in denying appellant’s request for a jury instruction concerning a missing Commonwealth witness. The victim’s brother, Jason Mickens, testified in regard to a fistfight involving the victim and the appellant’s brother, Mark March, one month before the slaying. After assisting others in separating Mark March and his brother, Jason Mickens drove March and an acquitance, named “Thor” to their respective homes. In a written statement taken by police officers on March 31, 1980, Jason said only that he drove Mark and a “friend”; he did not identify his friend as “Thor” until cross-examination by defense counsel at trial. Appellant now argues that the Commonwealth was obliged to discover before trial the identity of the third person in Jason’s car. After all, according to the appellant, the statement was in the Commonwealth’s sole possession. Furthermore, he maintains that it was error to admit the written statement and testimony of Jason Mickens since the Commonwealth did not make such evidence available to the defense before trial as provided for in Pa.R.Crim.P. 305(B)(1). As a result of admitting both the written statement and testimony, appellant argues that the Court should have granted appellant’s request for a special instruction to the jury. This instruction would allow the jury to consider the Commonwealth’s failure to produce for trial evidence within its sole control as an inference that such unveiled evidence is detrimental to the prosecutor’s case.

Appellant relies heavily upon Commonwealth v. Trignani, 185 Pa.Super. 332, 138 A.2d 215 (1958), In Trignani, supra, the defendant, accompanied by counsel, surrendered himself to police. Defendant offered an alibi. He informed several interrogating policemen that he was working with a few other men at 763 South 8th Street at the time the robbery and assault and battery were committed. Appellant further informed the officers that he could recall only two of these men as “Joe” and “Domenick”. “Domenick” was not produced for trial. The court concluded that where certain evidence is part of the proceedings and is in the sole control of that party who can benefit the most from producing it, and where that party does not give a satisfactory reason for not producing it, the jury should be instructed that it may draw an inference that such unproduced testimony was not beneficial to the party’s case. Wills v. Hardcastle, 19 Pa.Super. 525 (1902); Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952).

We do not believe that Trignani, supra, is controlling. The defendant in Trignani, supra, maintained an alibi defense throughout the proceedings. He intended to establish such a defense through the direct examination of “Domenick”, however, he neither produced “Domenick” for trial; nor issued a reasonable explanation for his absence. Therefore, the jury was correctly instructed that it may infer that the absent witness would not provide favorable testimony for the defense.

Here, the appellant argues that “Thor” was a proper part of the prosecution’s case in that he could corroborate the testimony of Jason Mickens to the extent that Mark March allegedly told Jason that he and his brother, Richard, would retaliate and “get” the victim. Unlike Trignani, supra, we do not believe that the absence of “Thor’s” testimony dictates a jury instruction allowing the jury to infer that the testimony was detrimental to the prosecution. Although the written statement was in the prosecution’s control, a satisfactory reason for not producing “Thor” as a witness existed, namely, that the testimony of Jason Mickens alone was sufficient to establish the retaliatory statement of Mark March. Moreover, Trignani, itself, permitted the testimony of only some of the policemen present during the defendant’s interrogation. The absence of the other policemen did not mandate an instruction similar to that requested by appellant here.

Appellant raises these remaining arguments: (1) that the shell casing was irrelevant evidence because nothing was offered to connect it with the bullet removed from the victim’s body or any weapon used to fire the bullet; (2) that the testimony of Charles Mickens was legally and factually irrelevant; (3) that the evidence elicited through the testimony of Robert Wingard was too remote to the shooting in March, 1980 to be relevant; (4) that the testimony of William Herring was inadmissible as hearsay; and, (5) that the testimony of Cornell Jason Mickens was inadmissible due to the fact that the Commonwealth failed to disclose an earlier written statement by Cornell to the appellant under Pa.R.Crim.P. 305. We have reviewed these remaining arguments in light of the applicable law. We find the lower court opinion to be a thorough and accurate disposition of these arguments; therefore, we defer to the lower court to that extent.

Judgment of sentence affirmed.


text:
    454 A.2d 572
    Francis G. HANIK, Appellant v. PENNSYLVANIA POWER COMPANY.
    Superior Court of Pennsylvania.
    Argued April 14, 1982.
    Filed Dec. 23, 1982.

      Joseph M. Stanichak, Aliquippa, for appellant.
    Lee E. Whitmire, Jr., Beaver Falls, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This action in equity was instituted by appellant to enjoin appellee from employing chemical herbicides on property adjacent to appellant’s land. At trial, appellee’s motion for a compulsory nonsuit was granted. Appellee thereafter pursued its counterclaim and was eventually awarded a verdict thereon in the amount of $2,625.00. Appellant filed exceptions to the verdict, which were argued and denied. This appeal ensued.

Appellant contends that the counterclaim did not arise from the same occurrence upon which appellant based his complaint. A legal counterclaim which attaches to an equitable action is only proper when it arises from the same transaction or occurrence. Pa.R.C.P. 1510 provides:

“(a) A defendant may plead as a counterclaim only a cause of action, whether equitable or legal, which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose____”

In the instant case, appellant initiated an action in equity to obtain a permanent injunction prohibiting appellee from using chemical herbicides to clear brush and tree growth from its right of way through appellant’s land. Appellant averred in his complaint that plant and animal life on his land was being destroyed by the use of such herbicides.

In its answer, appellee denied that the herbicides were either harmful or dangerous and also denied that the chemical compound was applied to appellant’s land. In addition, appellee filed a counterclaim for attorney’s fees, alleging that this suit constituted vexatious litigation. Costs and counsel fees which appellee was required to expend in the defense of this case totaled $2,625.00.

The issue herein was addressed in T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). In that case, appellant filed a complaint in equity seeking specific performance of a written option agreement for the sale of a parcel of land. Appellee counterclaimed for injunctive relief and damages under the theories of malicious use and abuse of process. The Supreme Court ruled that the issues sought to be raised by appellee’s counterclaim were not sufficiently related to appellant’s cause of action to permit joinder. While appellee’s counterclaim may have arisen from the same legal proceeding that was before the Court, it could not claim as its origins the same transaction from which appellant’s cause of action arose. To hold otherwise, noted the Court:

“would require the plaintiff to present his case in chief, which would not involve the elements of the tort claim, e.g., malice, probable cause, improper motive, etc., and then to allow the defense in addition to the presentation of his evidence in rebuttal of plaintiff’s case in chief, to interject additional and unrelated testimony to establish the claimed tort. Thereafter of course, the plaintiff would be required to introduce further evidence to meet that issue, thus probably completely obfuscating the basic issue which initially inspired the bringing of the lawsuit. Such a co-mingling of the plaintiff’s claim and those of defendants’ counterclaim would be likely to produce such confusion in the mind of the fact finder as to make the possibility of a just decision unlikely and increase the probability of a miscarriage of justice. Selas Corp. of America v. Wilshire Oil Co. of Texas, 344 F.Supp. 357 (E.D.Pa.1972).”

Id. 472 Pa. at 345-346, 372 A.2d at 728. The Supreme Court thus refused to permit the entangling of unrelated claims.

In the case at bar, appellee’s allegations that appellant acted in an arbitrary and vexatious manner in the filing of this lawsuit are also based upon numerous actions instituted by appellant prior to this case. For example, in 1959, appellant signed an option permitting a right-of-way over his property. However, appellant refused to sign the final papers until 1961, after appellee spent several thousand dollars in legal fees and costs. During the 1970-1971 time period, appellee was forced to expend sums of money on at least four different occasions for sheriff protection costs so that appellee’s employees could conduct legitimate business on its right-of-way. In 1978, after appellee was prevented from purchasing property at a tax sale by appellant’s higher bid, appellant reneged on his bid and caused a second tax sale to be held at which appellee prevailed as the successful bidder. Appellee’s counterclaim concluded:

“[t]he said conduct of the plaintiff over a long period of time shows that the plaintiff is acting arbitrarily and in a vexatious manner and in bad faith when dealing with the defendant.”

Based upon appellant’s past conduct, appellee sought the relief provided by 42 Pa.C.S.A. § 2503, which states:

§ 2503 Right of participants to receive counsel fees The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter. (9) “Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.”

A review of the above facts reveals that this case is very similar to T.C.R. Realty, Inc. v. Cox, supra. Although the basis for recovery differs somewhat from T.C.R. Realty, the allegations contained in appellant’s counterclaim are similarly dependent upon the proof of claims totally unrelated to the cause of action which prompted appellant’s complaint. In fact, the trial judge observed:

“[t]he counterclaim in the instant case did not arise out of the same occurrence as did the plaintiff’s cause of action. Therefore, we have concluded that the counterclaim should not have been part of this case.”

Thé trial court reasoned that the intertwining of unrelated claims must be avoided, even at the expense of judicial economy.

However, the trial judge did not set aside the verdict that had been entered as the counterclaim. Appellant failed to preserve this issue in his exceptions to the verdict. Therefore, the trial judge ruled that appellant waived any objection to the counterclaim.

Unquestionably, matters not addressed in exceptions are deemed waived. Pa.R.C.P. 1518, which governs actions in equity, specifically decrees:

“Within ten (10) days after notice of the filing of the adjudication exceptions may be filed by any party to rulings on objections to evidence, to statements or finding of fact, to conclusion of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters.”

See Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114 (1982); Houston-Starr Co. v. Virginia Mansions Apartments, Inc., 295 Pa.Super. 480, 441 A.2d 1334 (1982). Waiver occurs regardless of whether an objection is orally advanced during trial, Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975), as was the case herein.

Appellant contends that this particular issue of an improper counterclaim cannot be barred by his failure to include it in his written exceptions. It is appellant’s position that since the counterclaim did not arise from the same transaction, and therefore was not properly before the court, the court lacked subject matter jurisdiction.

In support of its argument, appellant directs our attention to Marcus v. Diulus, 242 Pa.Super. 151, 363 A.2d 1205 (1976). Appellants therein, the legal authorities of Allegheny County, had conducted a search of appellee’s property and had seized various items. Appellee thereafter filed a complaint in equity to enjoin the public officials from sending the evidence to authorities in other states. Appellants filed preliminary objections stating that a court of equity did not have jurisdiction in a criminal matter. The chancellor nonetheless assumed jurisdiction. As a result of his holding, appellants filed an appeal without, however, filing exceptions to the lower court’s adjudication. This Court held that the question of jurisdiction had not been waived:

“A court has the inherent power to determine on its own motion whether it has the jurisdiction to decide the cause before it. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Harris-Walsh, Inc. v. Dickson City of Borough, 420 Pa. 259, 216 A.2d 329 (1966). Therefore, even if a party fails to raise this issue by objection or exception in the court below, it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction. Cathcart v. Crumlish, 410 Pa. 253, 189 A.2d 243 (1963).” (footnote omitted).

Id. 242 Pa.Super. at 157, 363 A.2d at 1208.

It is clear from the rules themselves that this Court has the authority to address the issue of jurisdiction irrespective of the mandate of Pa.R.C.P. 1518 that all matters not covered by exceptions are deemed waived. See Pa.R. C.P. 1032(2).

However, does the issue of improper joinder of a counterclaim concern subject matter jurisdiction? One method to determine the nature of such a claim is to examine how the appellate courts of this Commonwealth have treated this situation previously. In Brenner v. Sukenik, 410 Pa. 324, 189 A.2d 246 (1963), the Supreme Court observed that an:

“objection to the fact that the counterclaim was not germane to the original complaint should have been made by preliminary objection in the nature of a demurrer. Pa.R.C.P. 1017(b)(4); 8 Standard Pa.Practice 228 .... An objection that a cross-bill is not germane to the original bill is waived by a general answer to the cross-bill. Sears v. Scranton Trust Co., 228 Pa. 126, 77 A. 423 (1910); 30 C.J.S. Equity § 387.” (footnotes omitted).

Id., 410 Pa. at 329, 189 A.2d at 249. Pa.R.C.P. 1017, which is applicable to an action in equity by virtue of Pa.R.C.P. 1501, outlines the various acceptable objections to pleadings. One available preliminary objection under that rule permits a challenge to the jurisdiction of the court. Pa.R. C.P. 1017(b)(1). If the Supreme Court believed that an objection to an improper counterclaim were in the nature of a jurisdictional issue, it would have recommended that the objection be raised pursuant to Pa.R.C.P. 1017(b)(1). Instead, it stated that a demurrer would be the proper vehicle by which to advance an objection.

This Court in Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976) opined that an objection to a counterclaim as not germane to the cause of action in plaintiffs complaint is analogous to an objection for misjoinder of causes of action as permitted by Pa.R.C.P. 1017(b)(5). The result of sustaining such an objection is the striking of the cause of action without prejudice to the pleader’s right to file a new and separate action.

In neither of the above cases was the improper counterclaim addressed as an issue involving subject matter jurisdiction. The test of jurisdiction is whether the court is competent to hear and determine controversies of the general nature of the matter involved. McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). That is, jurisdiction lies if “ ‘the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case.’ ” Carelli v. Lyter, 430 Pa. 543, 546, 244 A.2d 6, 8 (1968), quoting Drummond v. Drummond, 402 Pa. 534, 538, 167 A.2d 287, 290 (1961).

Clearly, a court of equity is empowered to hear and determine counterclaims of a legal nature, such as a demand for counsel fees and costs. Pa.R.C.P. 1510. That the counterclaim in the instant case was not germane to appellant’s complaint does not work to deny the lower court of subject matter jurisdiction. Undeniably, the form and improper pleading of this claim could have prevented appellee from recovering in that particular forum had appellant advanced a written exception in this regard. However,

“[wjhere a court has general jurisdiction over the subject matter of the litigation, any irregularity in the method by which the court obtains jurisdiction of a particular case is usually waived by failure to raise the objection timely. See, e.g., Ciammaichella Appeal, 369 Pa. 278, 288, 85 A.2d 406, 411 (1952); Susquehanna County Auditor’s Report, 123 Pa.Super. 195, 187 A. 78 (1936); 21 C.J.S. Courts § 110. Defects in process or procedure may always be waived provided there is general jurisdiction of the subject matter.”

Papencordt v. Masterwork Paint Co., 412 Pa. 508, 511, 194 A.2d 878, 880-881 (1963). Since the lower court’s jurisdiction was not dependent upon a properly pleaded counterclaim, this issue, not being preserved, is waived.

We therefore affirm the order of the court below. In addition, we grant appellee’s application for additional costs in the amount of $203.40 pursuant to Pa.R.A.P. 2741(2). However, we do not award appellee additional attorney’s fees because we do not deem the filing of this appeal as frivolous, vexatious, or obdurate. Consequently, additional attorney’s fees are not so authorized by either 42 Pa.C.S.A. § 2503 or by Pa.R.A.P. 2744.

Judgment affirmed and additional costs awarded.

      . A preliminary injunction was granted, pending a hearing on a permanent injunction. Appellant failed to post the requisite $100 bond; consequently the preliminary injunction was dissolved by Order of Court.

      . At the time of trial, appellant advised the court that he learned the herbicides were not harmful and he, therefore, would not proceed with his case.

      . Appellant filed no answer to appellee’s counterclaim prior to trial. After the close of the case-in-chief on the counterclaim, appellant requested a continuance and leave to file an answer. The trial court denied his request. Nonetheless, after trial and prior to entry of the verdict, appellant filed a reply to new matter and a reply to the counterclaim.

      . Appellee also filed an application for further costs and attorney’s fees which were incurred in connection with this appeal.