author: CIRILLO, Judge: CAVANAUGH, Judge,

text:
    481 A.2d 616
    Angelo COLLOI and Caterina Colloi, His Wife, Appellants, v. PHILADELPHIA ELECTRIC COMPANY and Joseph Scholl, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1984.
    Filed July 13, 1984.
    Reargument Denied Sept. 26, 1984.
    Petition for Allowance of Appeal Denied Feb. 11, 1985.

      Lawrence Singer, Philadelphia, for appellants.
    Charles W. Craven, Philadelphia, for Philadelphia Elec. Co., appellee.
    John J. O’Brien, Philadelphia, for appellee Joseph Scholl.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

In this personal injury action, appellants Angelo Colloi and his wife Caterina Colloi appeal from a judgment entered in the Philadelphia County Court of Common Pleas after the court directed a verdict in favor of defendants/appellees Philadelphia Electric Company (PECO) and Joseph Scholl, Inc. (Scholl). We affirm the judgment with respect to Scholl, but reverse and remand for a new trial with respect to PECO.

The incident leading to this lawsuit occurred on September 11, 1978. On that date PECO, pursuant to a running contract for plumbing work with Scholl, called upon Scholl to repair an underground leak in the water sprinkler system at PECO’s substation at Ninth and Lombard Streets in Philadelphia. Scholl, in turn, called upon a subcontractor, Herald Contractors, to perform the excavation work and repair the leak. Herald dispatched a foreman, George Kull, and a laborer, appellant Angelo Colloi, to the substation to do the work. Kull and Colloi were met on location by Charles McDevitt, a PECO employee, and Edward Koerper, vice president of Scholl, Inc. Kull, Koerper, and McDevitt reviewed blueprints of the substation water lines, and then McDevitt showed the others where the water leak was inside one of the buildings comprising the substation. They then proceeded outside, and Koerper marked a spot on the sidewalk in front of the building where the excavation was to begin.

Colloi began breaking up the sidewalk with a jackhammer at the spot indicated. Koerper and McDevitt left the site of the excavation, but returned at various times to watch the progress of the work. Approximately five feet below the surface of the sidewalk, Colloi found a broken water pipe partly “saddled" in a concrete structure. In order to repair the pipe, the workmen had to slip a metal clamp around it at the leak. Kull instructed Colloi to break up the concrete so that the clamp could be applied. Colloi broke through the concrete with a jackhammer, whereupon he struck an electrical conduit carrying a current of 13,200 volts. The resulting shock caused Colloi to suffer severe injuries, including second-degree burns over one-third of his body and impotence, with concomitant traumatic neurosis.

Colloi, joined by his wife, sued the Philadelphia Electric Company for his injuries, and PECO brought in Scholl as an additional defendant. The case went to trial by jury. After the plaintiffs had presented their case, PECO introduced into evidence the contract between itself and Scholl, and with that the defendants rested and moved for a directed verdict. The court granted the motion, and it is from an en banc court’s refusal to disturb the directed verdict that the Collois appeal.

In an appeal from a directed verdict, the Appellate Court must consider the evidence and all reasonable inferences in the light most favorable to the appellant. Litwinko v. Gray, 267 Pa.Super. 541, 407 A.2d 42 (1979). If a jury could have reasonably concluded on the basis of that evidence and those inferences that liability should rest with the appellee, then the decision to direct a verdict was in error. See Cox v. Equitable Gas Co., 227 Pa. Super. 153, 324 A.2d 516 (1974). If there is any room for doubt, the trial court should not direct a verdict. Stephens v. Carrara, 265 Pa. Super. 102, 401 A.2d 821 (1979).

Lattanze v. Silverstrini, 302 Pa. Super. 217, 220, 448 A.2d 605, 606 (1982).

Bearing these principles in mind, we turn to appellants’ contentions that the evidence was sufficient to go to the jury on several theories of liability. We first address appellants’ case against appellee PECO.

In holding PECO non-liable as a matter of law, the trial court relied on the undisputed fact that Colloi’s employer, Herald Contractors, stood in the relationship of independent contractor to PECO. The court applied the following rule pertaining to independent contractors:

An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises....
... [W]hen he turns the work over to an independent contractor with experience and know-how, who selects his own equipment and employees, the possessor of land has no further liability in connection with the work to be done.

Brletich v. United States Steel Corp., 445 Pa. 525, 531-32, 285 A.2d 133, 136 (1971). Rationale for the independent contractor doctrine was stated in Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932):

The very phrase “independent contractor” implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority.

However, appellant contends that notwithstanding the independent contractor doctrine, PECO had a duty in this case to warn the independent contractor and its employees of the existence and location of its underground high-tension power line.

A landowner owes a duty to warn an unknowing independent contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner. Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A.2d 118 (1952); Restatement (Second) of Torts § 343 (1965); see also Skalos v. Higgins, 303 Pa. Super. 107, 449 A.2d 601 (1982). Such a duty to warn is owed irrespective of whether the independent contractor exercises full control over the work and premises entrusted to him. Crane v. I. T.E. Circuit Breaker Co., 443 Pa. 442, 278 A.2d 362 (1971). However, “An owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor.” Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 151, 189 A.2d 271, 277 (1963)(emphasis supplied). It has also been said that the employer of an independent contractor has no duty to warn the contractor or his employees of a condition that is at least as obvious to them as it is to him. Repyneck v. Tarantino, 415 Pa. 92, 202 A.2d 105 (1964). In addition, the owner of property is under no duty to protect the employees of an independent contractor from risks arising from or intimately connected with defects or hazards which the contractor has undertaken to repair or which are created by the job contracted. Celender v. Allegheny County Sanitary Authority, 208 Pa. Super. 390, 222 A.2d 461 (1966) (allocator refused).

In sum, whether the owner of premises owes to his independent contractor a duty to warn of dangerous conditions on the premises can be said to turn on whether the owner, at the time he enters the contract, possesses “superior knowledge,” Grace, supra, 369 Pa. at 272, 85 A.2d at 121, or information which places him in a superior position to appreciate the risk posed to the contractor or his employees by the dangerous conditions.

We believe the trial court erred in taking from the jury’s consideration the question whether PECO breached an existing duty to warn its contractors or their employees of the existence and location of the underground power line. We are persuaded by what was said by our Court in Densler v. Metropolitan Edison Co., 235 Pa. Super. 585, 590-91, 345 A.2d 758, 761 (1975):

Our courts have long recognized that the standard of care imposed upon a supplier of electric power, particularly when that power is supplied at high voltage, is among the highest recognized in the law of negligence. “A supplier of electric current ‘is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise, in contact with them.’ ” Brillhart v. Edison Light & Power Co., 368 Pa. 307, 312, 82 A.2d 44, 47 (1951), citing Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 543, 50 A. 161 (1901) and other authority. “That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care[.]” Yoffee v. Pa. Power & Light Co., 385 Pa. 520, 536, 123 A.2d 636, 645 (1956).

See also Ashby v. Philadelphia Electric Co., 328 Pa. 474, 195 A. 887 (1938).

[41 The “very highest degree of care” incumbent upon a supplier of electric power includes, in appropriate circumstances, the duty to warn an independent contractor of non-obvious dangers inherent in working in close proximity with high-tension wires. See Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A.2d 482 (1964); see also Fuller v. Palazzolo, 329 Pa. 93, 197 A. 225 (1938).

Here it is undisputed that PECO took no steps whatsoever to warn the independent contractor or its employees of a highly dangerous condition existing in the place where the excavation was to be done. PECO’s 13,200-volt line was in very close proximity to the water pipe to be repaired; in fact, the concrete structure housing the power line “saddled” up around the pipe to the extent of two or three inches, N.T. at 448, 452, so that the cement had to be broken in order to repair the pipe. Id. at 42, 416. George Kull, Mr. Colloi’s foreman on the job, testified that he had never seen utility lines running so close to one another, id. at 458; he assumed that the concrete structure was a “thrust block” poured around the pipe to hold it in place. Id. at 413-14, 430-32, 435, 452-54. The danger posed by the 13,200-volt power line lurking within the concrete structure was not suspected by the workers, as Mr. Kull testified on cross-examination: “Q. And did you have any cause to believe that there was an electric line through that concrete block? A. We would have never been digging if I thought there was electric nearby.” Id. at 449.

For its part appellee PECO, which owned, operated, and controlled the substation, had available at the site blueprints, charts, and diagrams of the electrical lines emanating from the substation. Id. at 10 (Stipulation). Although a PECO employee on the scene reviewed plans or blueprints of the water sprinkler system with Kull and Koerper, id. at 26, 114, 129, 407, the electrical plans were not reviewed, id. at 444-45, 456-57. Furthermore, at the point where Colloi’s excavation had revealed the broken water pipe and the underlying concrete structure, and immediately before Colloi began to break up the concrete, the PECO employee was present as an observer but failed to make any warning that the concrete structure housed a power line. Id. at 39-40, 42-43. Clearly, at no point was Colloi alerted to the existence of a power line in the place where he was ordered to dig. Id. at 130.

The trial court relied on other evidence tending to shpw that it was the duty of the independent contractor, rather than PECO, to ascertain the location of electrical lines at the job site. Specifically, the court cited the following line of questioning of Herald Contractors’ foreman, George Kull:

Q: Okay. Did you make any request of anyone at the Philadelphia Electric Company prior to the accident concerning what underground facilities were under the block?
A: No.
Q: Had you ever done that in the past in excavating? During your line of work, had you ever made a request of the electric company or the gas company to locate facilities for you during or before you excavated?
A: Yes. On all our jobs, we call three days in advance to all utilities that have structures in the area; and they come and locate before we start and mark everything.
Q: Okay. Why didn’t you make any requests in this particular case?
A: Well, it’s not my — not my place to do it. It’s our office’s responsibility to do this before you go out on the job. And since this was an emergency, I guess— well, in the first place, it wouldn’t apply here because this is inside the property line and we do all our work in the street and in the right of ways and, you know, very rarely on private property. So, that doesn’t apply in this case.
Q: You did realize that if you would have asked the Philadelphia Electric Company someone would have told you where their facilities were; is that correct?
A: I don’t know that.

Trial ct. slip op. at 5-6, quoting N.T. at 429-30. This testimony does not conclusively establish that PECO had no affirmative duty to warn its business invitees of the hazardous condition created by the proximity between the power line and the water line. See Janowicz v. Crucible Steel Co. of America, 433 Pa. 304, 249 A.2d 773 (1969).

As a general rule, questions of negligence or neglect of duty are for the jury if there is any credible evidence to support a reasonable conclusion that the defendant is liable; and the court may rule as a matter of law on such questions only when the evidence is clear and unmistakable. Ashby v. Philadelphia Electric Co., supra; Hargrove v. Frommeyer & Co., 229 Pa. Super. 298, 323 A.2d 300 (1974); Ostrowski v. Crawford Door Sales Co., 207 Pa. Super. 424, 217 A.2d 758 (1966). We believe the case should have been submitted to the jury to decide whether in the circumstances PECO met the high degree of care imposed on handlers of high-voltage electric power, or fulfilled its duty to warn the independent contractor of non-obvious dangers on the premises. See and compare Magill v. Westinghouse Electric Corp., 327 F.Supp. 1097 (E.D.Pa. 1971) , modified on other grounds, 464 F.2d 294 (3rd Cir. 1972) .

Appellants also contend that their case against PECO should have proceeded to the jury on the theories of liability set out in the Restatement (Second) of Torts §§ 416, 427, which state:

§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

The duties defined in these sections are said to be “non-delegable”; they impose vicarious liability for the negligence of an independent contractor upon one who employs the contractor to do work involving heightened risks of physical harm to third parties. Id., ch. 15, Topic 2, Introductory Note at 394.

Our Supreme Court has adopted sections 416 and 427 as the law of Pennsylvania. Philadelphia Electric Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967); see also Gilbert v. Korvette’s, Inc., 457 Pa. 602, 611-12 n.25, 327 A.2d 94, 100 n.25 (1974); McDonough v. United States Steel Corp., 228 Pa. Super. 268, 324 A.2d 542 (1974); Toole v. United States, 588 F.2d 403 (3rd Cir.1978); Sharkey v. Airco, Inc., 522 F.Supp. 646 (E.D.Pa.1981). In Pennsylvania, employees of an independent contractor are among the third parties to whom the duties specified in sections 416 and 427 flow. Hargrove v. Frommeyer & Co., supra; see Heath v. Huth Engineers, Inc., 279 Pa. Super. 90, 420 A.2d 758 (1980) (allocatur refused Oct. 7, 1980); Draper v. Airco, Inc., 580 F.2d 91 (3rd Cir.1978); Wagner v. Grannis, 287 F.Supp. 18 (W.D.Pa.1968).

We hold that appellants’ evidence was sufficient to make out a prima facie case against PECO under sections 416 and 427 of the Restatement. We think it unarguable that PECO employed an independent contractor “to do work which the employer should [have] recognized[d] as likely to create during its progress a peculiar risk of physical harm to others unless special precautions [were] taken,” § 416 (emphasis added), and to do “work involving a special danger to others which the employer knfew] or ha[d] reason to know to be inherent in or normal to the work, or which he contemplate[d] or ha[d] reason to contemplate when making the contract,” § 427 (emphasis added). We also note that there was ample evidence that either or both of the independent contractors employed in this case, Joseph Scholl, Inc. and Herald Contractors, Inc., failed to take special or reasonable precautions which would seem to have been required by the work they were engaged in. The contractors’ agents were fully aware that they were excavating beneath an electrical substation, yet neither took any steps to ascertain whether there were power lines in the area to be excavated. The elements of a case under sections 416 and 427 of the Restatement were thus made out.

Therefore, for the reasons stated in this opinion, the case must be remanded for a new trial on PECO’s liability.

As for the additional defendant, Joseph Scholl, Inc., we believe it has demonstrated its immunity from common law suit by virtue of a meritorious statutory employer defense under the Pennsylvania Workmen’s Compensation Act. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1603.

The liability of an employer to an employee under the Workmen’s Compensation Act is exclusive of all other remedies. P.S. § 481. The employer of a subcontractor is by statute the employer of the subcontractor’s employees, in the circumstances set forth in id. § 52:

An employer who permits the entry upon premises occupied by'him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

See also 1 Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease § 4.09(3) (1975). In McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), our Supreme Court set out five elements which must be proven to establish statutory employer status under the section of the Act just quoted. These elements are:

(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

Id., 302 Pa. at 295, 153 A. at 426.

Appellants concede that appellee Joseph Scholl, Inc. met criteria (1), (3), and (5) for statutory employer status, but contend that criteria (2) and (4) were not established in this case.

With respect to criterion (2), the element of control, appellants contend that Scholl did not exercise “exclusive” control over the work premises, in that PECO never relinquished possession of the substation or the electrical conduit. We reject this contention as meritless. In the first place, the law does not require that a statutory employer’s control of the work premises be “exclusive” of the owner’s possession of the premises. See Davis v. City of Philadelphia, 153 Pa. Super. 645, 35 A.2d 77 (1943); Draper v. Airco, supra; Hattersley v. Bollt, 512 F.2d 209 (3rd Cir.1975). Secondly, the plaintiffs’ own evidence showed that Scholl’s agent on the scene, Edward Koerper, marked the spot where excavation was to be done and exercised actual supervisory control over the entire job. N.T. at 30, 38-39, 82, 405-07, 444. George Kull, the foreman for Herald Contractors, admitted in his testimony that Koerper was “running the show.” Id. at 410. Under the case law this evidence clearly established the element of control in Scholl. See, e.g., Cranshaw Construction, Inc. v. Ghrist, 290 Pa. Super. 286, 434 A.2d 756 (1981) (allocatur refused Jan. 4, 1982); Pape v. Smith, 227 Pa. Super. 80, 323 A.2d 856 (1974); Wright Demolition & Excavating Co. v. Workmen’s Compensation Appeal Board, 61 Pa.Cmwlth. 479, 434 A.2d 232 (1981) (allocatur refused Dec. 28, 1981); Perma-Lite of Pennsylvania, Inc. v. Workmen’s Compensation Appeal Board, 38 Pa.Cmwlth. 481, 393 A.2d 1082 (1978).

As for criterion (4), appellants’ argument that the work entrusted to Herald Contractors was not part of Scholl’s “regular business” is worthy of little comment. The contract between Scholl and PECO, see Pape v. Smith, supra, as well as the uncontradicted testimony of George Kull, N.T. at 401-02, 408, proved beyond peradventure that the repair work being done at the substation was part of Scholl’s “regular business.” See Sgattone v. Mulholland & Gotwals, Inc., 290 Pa. 341, 138 A. 855 (1927); Wiltrout v. Circle Mobile Home Sales, Inc., 293 Pa. Super. 131, 437 A.2d 1240 (1981) (allocatur refused Apr. 2, 1982); Cran shaw Construction v. Ghrist, supra; Davis v. Philadelphia, supra. The case cited by appellants, Industrial Valley Bank & Trust Co. v. Workmen’s Compensation Appeal Board, 16 Pa.Cmwlth. 420, 332 A.2d 882 (1975), does not support their position.

With respect to appellee Joseph Scholl, Inc., the judgment entered on the directed verdict is affirmed; with respect to appellee PECO, the judgment is reversed and the case remanded for a new trial. Jurisdiction not retained.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I concur in the result reached in the majority, but write to express a single disagreement. I agree with the majority that PECO, as a supplier of high voltage electrical power, had a duty to warn the independent contractor (Scholl) and its employees of the location of the underground high tension power line, and therefore was not insulated from liability as a matter of law. Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 345 A.2d 758 (1975). However, I depart from the majority in its proposal that appellant’s case against PECO should have been placed before a jury on the theories explained in Restatement (Second) Torts §§ 416 and 427. These sections are set forth in the Restatement (Second) under Topic 2, Harm Caused by Negligence of A Carefully Selected Independent Contractor. The Introductory Note to Topic 2 states:

The rules stated in the following §§ 416-429, unlike those stated in the preceding §§ 410-415, do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous to that of a master for the negligence of his servant.

The case at bar is not a case of vicarious liability, which would cause PECO to be liable for the negligence of Scholl; instead, as the majority acknowledges in its opinion, PECO itself may be found liable for its failure to warn Scholl or its employees of the highly dangerous condition of the job situs. Such potential liability is PECO’s liability, and would not have been activated by any negligence of Scholl. Moreover, I believe that §§ 416 and 427 were intended to provide a basis for recovery by third persons (“others”), not for employees of independent contractors or sub-contractors. The policy reasons do not extend to such employees.

As for the liability of the additional defendant, Scholl, we agree with the majority that Scholl is immune from an action at common law because Scholl was appellant’s statutory employer.

      . Appellants contend at the outset that it was procedurally improper for the court to direct a verdict for the defendants after denying the defendants' motions for compulsory nonsuit. This contention holds no water. See Smith v. Ehler, 366 Pa. 111, 76 A.2d 865 (1950).

      . Appellant offers additional theories of liability against PECO based on the Restatement (Second) of Torts § 323 (Negligent Performance of Undertaking to Render Services) and §§ 519-20 (Abnormally Dangerous Activities). At the time of oral argument on appellees’ motions for directed verdict, these theories were not presented to the trial court, nor is there any indication they were presented to the court en banc. Accordingly we will not address them. Morgan v. Sbarbaro, 307 Pa. Super. 308, 453 A.2d 598 (1982).


source: Caselaw Access Project

author: OLSZEWSKI, Judge: HOFFMAN, Judge,

license: Public Domain

text:
    481 A.2d 625
    COMMONWEALTH of Pennsylvania v. Dauntel EVANS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed July 27, 1984.
    Petition for Allowance of Appeal Granted Jan. 7, 1985.

      Spero T. Lappas, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his convictions for murder in the second degree, criminal conspiracy and robbery.

The convictions follow a shooting during an attempted robbery of Ritchie’s Bar and Tavern, Middletown, Pennsylvania. The incident left Carroll Ritchie, the 75 year old proprietor, dead.

The facts developed at trial show that on November 21, 1981, about 7 p.m., two armed men entered Ritchie’s Bar. They demanded money from Mr. Ritchie who was then working behind the bar. He refused and, approaching the two robbers, ordered them out of his establishment. Two shots flashed, then a third. Mr. Ritchie fell to the ground; the two robbers left.

The police recovered three spent bullets. One .38 caliber bullet had struck and killed Mr. Ritchie. Two others, a .32 caliber bullet and another .38 caliber bullet, had missed Mr. Ritchie. They were found in the area behind the bar.

On information supplied by David Crater, appellant and Nolen (appeal docketed to No. 411 Harrisburg 1982) were arrested and charged with the crime.

Crater, who had driven the getaway car, testified that he had met with appellant and Nolen early that evening. The three boys then had joined in the plan to commit a robbery that evening.

When they arrived at Ritchie’s, Crater “cased” the bar and reported what he had seen to the other two. Nolen and Evans disguised their faces with clothing and entered the bar. A few moments later, Crater heard two shots and then a third. Nolen and Evans ran back to the car. Crater quoted Nolen as saying that the man [Ritchie] had tried to be “like superman” and that he [Nolen] “just shot the old mother fucker.”

Nolen and Evans entered pleas of “not guilty.” Following trial, the jury returned verdicts of guilty, murder in the second degree. Timely post-verdict motions were filed and denied. Judge Morrison sentenced appellants November 10, 1982.

Appellant assigns as error the following. The trial court denied appellant his right to cross-examine Crater about other charges then pending against him in Dauphin County. In particular, the trial court refused to allow questions about Crater’s hope of leniency on those charges in exchange for his testimony in the case at bar.

The trial court admitted into evidence, over counsel’s objections, evidence about burglaries at the home of Warren Brubaker and that of Earl Herring.

The trial court failed to grant appellant’s’ Motion for Severance.

The trial court allowed the prosecution to examine appellant’s alibi witness about an alleged homosexual relationship with the appellant.

We will address these issues seriatim.

Scope of Cross-Examination of David Crater

The trial court limited appellant’s cross-examination of the state’s key witness, David Crater, then under indictment for other unrelated crimes, to questions about that witness’ role in the Ritchie incident.

Crater’s testimony gave the prosecution its case against Evans and Nolen. Crater alone could place the boys at Ritchie’s Bar that night. The patrons present during the robbery failed to identify either Nolen or Evans, and could not even state with certainty the robbers’ race or sex. Appellants presented an alibi defense. Evans took the stand and denied any connection with the Ritchie incident. Without Crater’s testimony, the prosecution had little evidence to link the boys to the crime. Thus, the Commonwealth’s case rose and fell on Crater’s testimony.

At the time Crater testified against the boys, he faced not only charges in the Ritchie case but also some 10 to 15 additional felony charges for burglary and conspiracy. Those charges had been filed in Dauphin County. All fell within the jurisdiction of the Dauphin County District Attorney’s Office. All lay undisposed when Crater took the stand.

The trial court refused to allow appellant to question Crater about these other crimes. Finding that the prosecution had promised Crater nothing for his testimony, the court stated:

The defense would ask this Court to expand the exception to the general rule even further by allowing the jury to engage in idle speculation as to whether or not Crater might have an expectation of leniency in exchange for testimony. Lower court opinion at 8 (emphasis added).

The court declined to take that step.

The “general rule” bars admission of a witness’ unconvicted bad acts. Stout v. Rassel, 2 Yeates 334 (Pa. 1798); Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977). The rule no more than restates the fundamental principle that a person is innocent until proven guilty. An arrest or indictment does not establish guilt. As Wigmore explains, “the fact of arrest or indictment is quite consistent with innocence ____” 3A J. Wigmore, Evidence § 980a (Chadborn rev. 1970). Danger inheres that the fact-finder might mistake the allegations for acts, and confuse the acts with the man. Impeachment by unconvicted bad acts “carries the injustice of subjecting the witness to suspicion without giving him an opportunity to clear it away.” Id.

Nevertheless, proof of a witness’ unconvicted bad acts may come in to establish the witness’ interest in the immediate matter. Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 663 (1969); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). “[T]he jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case.” 454 Pa. at 452, 311 A.2d at 898.

A court will condition admission on two requirements: the existence of an indictment against the witness and evidence that the prosecutor could promise leniency. Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979). The court below concluded that appellant’s proffered cross-examination of Crater failed “to stand muster” on that second requirement. Lower court opinion at 8.

The first requirement, existence of an indictment, serves to fix the witness’ interest in the matter. See Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). The second, proof that the prosecutor could offer leniency, tests the basis of a witness’ expectations. A simple illustration is the case of a Commonwealth witness facing indictments in federal court. Admission of these federal indictments is disallowed for the purposes of impeachment in the state prosecution. Because the federal courts operate independently of their state counterparts, the state prosecutor lacks power to ensure leniency in the federal system. See Commonwealth v. Mulroy, 154 Pa.Super. 410, 36 A.2d 337 (1943).

The trial court reads a further stricture into this second requirement by demanding proof of a deal struck or favor won. Finding none, the lower court ruled that evidence of unconvicted bad acts could not come in against the witness Crater.

The lower court relied on a line of Pennsylvania cases: Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). On their facts, these cases support the lower court’s reading. In Joines, for instance, the Commonwealth’s key witness had pleaded guilty to fraud in an unrelated matter. During the pendency of the Joines trial, that witness was permitted to withdraw his guilty plea in order to participate in an ARD program. Similarly, in Coades, the defendant faced indictments for burglary, robbery and larceny and conspiracy. In exchange for testimony, his co-defendant was allowed to plead guilty only to conspiracy, a misdemeanor. His remaining felony indictments were nol prossed.

Appellant contends, “It does not matter that the defendant cannot prove an actual plea bargain with the witness or any sort of executory promise of favorable treatment. It is the witness’s expectation and hope of leniency which create the motive.” Appellant’s Brief at 15-16.

He draws support from broad language in the cases: Commonwealth v. Coades, 454 Pa. at 452, 311 A.2d at 898 (“[W]e permit a jury to infer that a co-indictee’s testimony is biased because he may receive favorable treatment----”); Commonwealth v. Joines, 264 Pa.Super. at 285, 399 A.2d at 779 (“[N]ot only was the prosecutor able to promise [the witness] leniency, he provided him with leniency.”); see Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 629, 70 A. 884, 885 (1908) (“It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial____”).

Appellant asks us to apply that language to the facts of this case.

We agree with Wigmore that “the pendency of any indictment against a witness indicates indirectly a ... possibility of his currying favor by testifying for the state.” 3A J. Wigmore, Evidence § 967 (Chadbourn rev. 1970) (emphasis in original). However our research has failed to uncover a single case in which a Pennsylvania court has allowed cross-examination about a witness’ unconvicted bad acts — merely to establish that witness might hope for leniency.

Absent some showing of a bargain struck or favor won, the trial judge did not err in limiting the scope of cross-examination to questions about Crater’s role in the instant case.

Although we ground our decision in state evidentiary law, we recognize the constitutional dimensions of the problem. In Davis v. Alaska, 415 U.S. 308,. 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Sixth and Fourteenth Amendments confer the right to cross-examine a prosecution witness about his vulnerable status as a probationer. Chief Justice Burger wrote for the majority:

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [witness’] testimony which provided a crucial link in the proof of petitioner’s act. The accuracy and truthfulness of [witness’] testimony were key elements in the state’s case against petitioner. The claim of bias was admissible to afford a basis for an inference of undue pressure because of [witness’] vulnerable status as a probationer____ 415 U.S. at 318-319, 94 S.Ct. at 1111 (citations omitted).

However, Davis does not mandate wide-open cross-examination in every case. See id. at 321, 94 S.Ct. at 1112 (Stewart, J., concurring).

Appellant has a right to a fair trial, not a perfect one. We are satisfied that, if an error were made by the court below, that error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 408, 383 A.2d 155, 163 (1978).

Appellant had one reason for attempting to cross-examine Crater about the other burglaries. He wished to alert the jury to Crater’s possible motives for testifying.

Reviewing the record, we find ample warnings to the jury to weigh Crater’s testimony carefully. The jury heard the role Crater played in the Ritchie incident. They knew he had participated in both the Herring and Brubaker burglaries. Most importantly, the court warned the jury that Crater’s testimony should be viewed with caution:

First, Crater’s testimony should be looked upon with disfavor as coming from a corrupt and polluted source. Experience has indicated that a person who is involved in the commission of a crime may falsely blame others because of some corrupt or wicked motive. On the other hand, the law recognizes that sometimes such a person may tell the truth about he and others committed a particular offense together so that the jury is cautioned that they should regard Crater’s testimony as coming from a polluted source. He has indicated his involvement in this case as an accomplice and there may be some question about what he thinks he may be charged with, but that is not the issue in this case. The fact is that he is an accomplice and at his trial we will decide what to do about him, but now it is sufficient to say that he is involved in these matters and you should regard his testimony as coming from , a polluted source, and you should weigh it carefully, what he says to you in regard to what happened and after weighing his testimony you should accept it if you find it truthful only after employing caution and care. N.T. 606.

Compare Commonwealth v. Coades, 454 Pa. at 453-454, 311 A.2d at 898 (the trial judge erred in refusing to charge the jury that prosecution’s key witness was the accused’s accomplice).

Brubaker and Herring Burglaries

The trial court admitted testimony about two burglaries allegedly related to the Ritchie incident.

Over appellant’s objections, the jury heard proof that, on November 13, 1981, Nolen and Crater had burglarized the home of Warren Brubaker. A .38 caliber handgun taken in that burglary was identified by a ballistics expert as the murder weapon. Appellant Evans played no role in that crime.

The court also allowed evidence that the three, Crater, Nolen and Evans, had burglarized the home of Earl Herring on November 19,1981. Although that burglary netted a .32 caliber handgun and .32 caliber ammunition, the prosecution failed to connect the fruits of that robbery to the Ritchie incident. The Herring gun was never recovered. Expert ballistics testimony established only that a .32 slug recovered from the scene of the murder could have been fired from the Herring gun.

No convictions were entered in these cases when the appellants came to trial on the Ritchie charges. For this reason, appellant argues that the prosecutor introduced the evidence of these burglaries for an impermissible purpose— to prove that appellants were evil men.

Again, we recognize that the general rule bars admission of charges which have not resulted in convictions. See p. 3, supra. Evidence of these other burglaries, however, falls within the exceptions carved from that rule. The evidence was relevant and probative in the instant case. The actual need for the evidence outweighed the prejudice incident to its introduction. Commonwealth v. Bradley, 243 Pa.Super. 208, 212, 364 A.2d 944, 946 (1976).

Testimony about the Brubaker burglary tied appellant Nolen to the murder weapon. “Evidence of a crime other than the one for which the defendant is being tried is admissible if it tends to show the identity of the perpetrator of the crime charged in the trial.” Commonwealth v. Evans, 488 Pa. 38, 44, 410 A.2d 1213, 1216 (1980). The fact that the testimony implicated Nolen but not Evans does not bar its admission. See United States v. Snead, 447 F.Supp. 1321 (E.D.Pa.), affirmed 577 F.2d 730 (3rd Cir.), cert. denied 436 U.S. 930, 98 S.Ct. 2829, 56 L.Ed.2d 775 and 439 U.S. 851, 99 S.Ct. 156, 58 L.Ed.2d 154 (1978) (testimony clearly relevant and probative with respect to one defendant was properly admitted over co-defendant’s claim of prejudice).

The testimony about the Herring burglary, though less probative, was nonetheless admissible here. “[TJhis testimony was clearly relevant as showing part of a chain, or sequence of facts, or part of the history of the event on trial----” Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); see Commonwealth v. Detrie, 263 Pa.Super. 75, 397 A.2d 2 (1979).

Appellant’s claims of prejudice are met by curative instructions given at counsel’s request. See N.T. 623-625. The attack goes to the weight of the evidence not its admissibility. Commonwealth v. Williams, 454 Pa. 261, 311 A.2d 920 (1973).

Motion for Severance

Appellant argues further that the trial court erred by denying the motion for severance.

Pennsylvania Rule of Criminal Procedure 228 allows joinder of defendants “alleged to have participated in the same act or transaction.” Rule 1128 empowers the court to order separate trials “or provide other appropriate relief if it appears that any party may be prejudiced by ... defendants being tried together.” Pa.R.Crim.P., Rule 1128, 42 Pa.C.S.A. Grant or denial of séverance lies within the discretion of the trial judge. His determination will be reversed only for abuse of discretion. Commonwealth v. Simkins, 297 Pa.Super. 258, 443 A.2d 825 (1982).

We note that:

A defendant is not entitled to a severance merely because the evidence against a co-defendant is more damaging than against him. If that were the case, a joint trial could rarely be held____ [T]he proper inquiry is whether the evidence^ is such that the jury cannot be expected to compartmentalize it and then consider it for its proper purposes. United States v. Snead, 447 F.Supp. at 1323-1324.

Here, separate verdicts were requested and returned. We find no reversible error in trying both Nolen and Evans in one proceeding.

Cross-Examination of Alibi Witness

Appellant moved for a mistrial when the prosecution questioned his alibi witness Kerry Williams about an alleged homosexual relationship with appellant.

Williams had testified that appellant had spent the night of the Ritchie murder at Williams’ house. The existence of any relationship was relevant to establish bias on Williams part. Williams admitted his homosexuality; he denied any liason with appellant. The issue was properly before the jury as arbiter of facts. The jury was free to believe all, none or part of the testimony. Commonwealth v. Shaver, 501 Pa. 167, 460 A.2d 742 (1983). The trial court did not err in denying appellant’s motion for mistrial.

Appellant raises a final argument under the heading “Other Issues.” He fails to state the questions involved. This violation of Rule 2116 of the Pennsylvania Rules of Appellate Procedure precludes our consideration of those issues. “This rule is to be considered in the highest degree mandatory admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Pa.R.A.P., Rule 2116(a), 42 Pa.C.S.A.

Were we to reach the merits, appellants failure to develop the bald assertions deprives this court of any meaningful opportunity to consider those issues. See Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982); Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981).

The judgment of sentence is hereby AFFIRMED.

HOFFMAN, J., filed a concurring statement.

HOFFMAN, Judge,

concurring:

I concur for the same reason expressed in the companion case Commonwealth v. Nolen, 330 Pa. Superior Ct. 366, 479 A.2d 595 (1984).

      . See Pa.R.Crim.P., Rule 313, 42 Pa.C.S.A.; see also 42 Pa.C.S. § 8932 (Supp.1982).
      In Coades, Justice Manderino suggested that the fact of the nol prossed felony indictments might, in itself, provide strong incentive for a witness to testify. 454 Pa. at 451, 311 A.2d at 896.
      Entry of a nolle prosequi works a dismissal without prejudice. Commonwealth v. Reider, 255 Pa.Super. 163, 386 A.2d 559 (1978). The prosecutor, to reinstate those charges, need only refile them. See Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978). A nol pross, then, affords the prosecutor considerable power over the witness.

      . We heed the suggestion in Coades that unconvicted bad acts might come in to show bias or interest — even where there has been no explicit agreement.
      We distinguish the cases on their facts. Further, a prosecutor enjoys plenary power to reinstate nol prossed charges. He could promise a witness peace. In contrast, the prosecutor here could promise Crater nothing without the court’s approval. See Pa.R. Crim.P., Rules 313 and 319, 42 Pa.C.S.A.

      . We note the disparity between the sentences received by appellants and those received by Crater. Evans, for his part in the Ritchie incident, received a mandatory life term for murder in the second degree and five (5) to ten (10) years concurrent on the burglary counts, to be served at the expiration of the life sentence. He was assessed costs, fined and ordered to make restitution.
      Crater received a six (6) to twelve (12) year sentence for his role in the Ritchie incident. For all the burglaries, he received a sentence of two (2) to four (4) years, consecutive to the Ritchie sentence.
      A life sentence was imposed on Nolen for his conviction of murder in the second degree as a result of the robbery — death. He received concurrent sentences of five (5) to ten (10) years on the burglary counts. Those sentences will begin at the expiration of the life sentence. He too was assessed costs, fined and ordered to pay restitution.

      . He testified also that a spent cartridge found in Nolen’s mother’s car after the crime matched the design and brand of the Herring ammunition.


author: OLSZEWSKI, Judge:

text:
    481 A.2d 632
    COMMONWEALTH of Pennsylvania v. Norval “Happy” DeMARCO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1984.
    Filed July 27, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      John W. Murtagh, Jr., Pittsburgh, for appellant.

      Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This matter comes before this court on appeal from the judgment of sentence of April 19, 1983 by the Court of Common Pleas of Dauphin County. Following a jury verdict finding appellant guilty of theft by deception, the court below, in a modified sentence, ordered that the appellant serve a term of incarceration of ten to twenty-three months, imposed costs, a fine of five hundred dollars and directed that restitution be made in the amount of twenty-four hundred dollars. Timely post-trial motions were denied and this, appeal followed.

On June 4, 1980, Mrs. Edith Shepler withdrew twenty-four hundred dollars from her savings account and handed it to a man who purported to be a bank examiner. Mr. William Conn, Vice-President and Security Officer of the bank, suspicious of the large withdrawal by a senior citizen, observed two men in the vicinity of the bank and contacted the police.

Detective James N. Negley, of the Derry Township Police Department, used eyewitness descriptions of the two men and an automobile license number to trace the perpetrators to Canada. After Shepler and Conn separately identified the appellant from a photographic array, a complaint was filed charging him with theft by deception and criminal conspiracy, on August 4, 1980. Three days later, the Derry Township Police Department initiated extradition proceedings against the appellant, culminating in an arrest on April 21, 1982, in Canada.

On May 18, 1982, the Commonwealth withdrew its first complaint and filed a second complaint which corrected a misspelling of the appellant’s name and charged only theft by deception.

After a hearing in Canada, the appellant was extradited to the United States, and was tried on November 16, 1982. Following a jury verdict of guilty and a denial of timely post-trial motions, this appeal was filed.

Seven issues are raised in this appeal. The appellant first argues that the Commonwealth denied him his right to a speedy trial under Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., which states in pertinent part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant----

The appellant alleges that he was not “unavailable for trial” during the period from the date the first complaint was filed, August 4, 1980, to the date of trial, November 16, 1982. We disagree, and hold that the appellant’s right to a speedy trial was not violated.

A recitation of the key events in the history of this case is necessary:

June 4, 1980

Criminal offense occurs.

August 4, 1980

Complaint filed charging Norwall “Happy” DeMarco with theft by deception and criminal conspiracy.

August 7, 1980

Canadian police advise Commonwealth to send extradition materials directly to Peel Regional Police Department, Ontario, Canada.

September 30, 1980 to February 5, 1981

Commonwealth sends documents to Canadian authorities, who request two separate amendments of the materials.

January 1, 1981

[One hundred eighty days have passed from filing of complaint.]

February 5, 1981

Commonwealth inquires into status of extradition and is advised of delay due to backlog in Canadian work program.

March 2, 1981

Commonwealth receives copy of letter from Canadian police to U.S. Consulate in Toronto, advising that warrant had been issued for arrest of the appellant.

March 17, 1981

U.S. Department of State contacts Commonwealth with request for information concerning the extradition. Commonwealth requests of Canada that arrest be delayed pending application with the U.S. Department of Justice.

March 19 to early April, 1981

Commonwealth prepares and sends documents to Washington, D.C.

March 26, 1981

Commonwealth contacts Canadian authorities to determine status of extradition process.

June 8, 1981 to August 14, 1981

Commonwealth submits amended documents to Washington, D.C.

February, 1982

Commonwealth contacts U.S. Department of Justice to determine status of extradition process. Problems relating to misspelling of the appellant’s name and to evidence charging a co-conspirator are communicated to the Commonwealth. Commonwealth suggests withdrawal of first complaint and filing of second, corrected complaint.

May 18, 1982

Original complaint withdrawn from District Justice William Rathfon, second complaint filed charging Norwall “Happy” DeMarco with theft by deception.

June 15, 16, 18, 1982

Following a contested extradition hearing in Canada, the appellant is ordered extradited.

August 11, 1982

Commonwealth returns the appellant to Pennsylvania to stand trial.

November 16, 17, 1982

After trial by jury, the appellant is found guilty of theft by deception.

Our review of the chronologue compels the conclusion that the one hundred eighty day limitation prescribed by Rule 1100 was tolled by the unavailability of the appellant from August 4, 1980 until August 11, 1982. “The defendant should be deemed unavailable for the period of time during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition.” Pa.R. Crim.P., Rule 1100 Official Comment, 42 Pa.C.S.A.

Although Pennsylvania case law does not discuss the application of Rule 1100 to extradition proceedings with foreign countries, the case law discussion of extradition from foreign states is instructive. It is generally held that Rule 1100 is tolled where the Commonwealth shows, by a preponderance of the evidence, that it has acted with due diligence in seeking extradition to bring the defendant to trial. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Clark, 256 Pa.Super. 456, 390 A.2d 192 (1978). Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been made to secure the defendant’s attendance at trial. Id.; see also Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982). The matters of availability and due diligence “must be judged by what was done by the authorities rather than [by] what was not done.” Commonwealth v. Williams, 284 Pa.Super. 125, at 132, 425 A.2d 451, at 455 (1981) (emphasis in original, citation omitted); see also Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983) (reasonableness under the circumstances); Commonwealth v. Singleton, 313 Pa.Super. 224, 459 A.2d 821 (1983) (every step that Commonwealth could reasonably be expected to take); Commonwealth v. Fanelli, 292 Pa.Super. 100, 436 A.2d 1024 (1981) (Commonwealth does not have to exhaust every conceivable avenue open to it).

In the instant case the Commonwealth initiated extradition proceedings within three days of filing its complaint against the appellant. This prompt procedure distinguishes the case from Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977), in which due diligence was found lacking when the Commonwealth failed to initiate extradition proceedings for more than one hundred eighty days. The record here reveals that the Commonwealth diligently pursued the matter first with the Peel Regional Police Department and eventually with the United States Department of State and Department of Justice. Every time that a modification or additional documentation was requested, the Commonwealth promptly complied.

The delay in the instant case was due, in part, to the extradition procedure which the Commonwealth chose to pursue. Initially, the Commonwealth applied directly to the Canadian authorities. As the Director of the Criminal Investigation Division, Dauphin County District Attorney’s Office, testified, his office had conducted one prior successful extradition proceeding with Canadian authorities. His reliance on that past successful proceeding was reinforced by the recommendation of the Canadian authorities that all documentation be sent directly to Canada. The Director explained that, in fact, the documents should have been sent to the United States Department of State for processing through diplomatic channels.

This scenario raises a novel question: whether due diligence may be found where the Commonwealth, in reliance upon past experience and the representations of officers of the foreign jurisdiction, pursues an international extradition through improper channels. Stated another way, we must consider whether the appellant’s right to a speedy trial imposes a duty on the Commonwealth to correctly initiate its extradition process with a foreign nation.

A primary purpose of Rule 1100 is to prevent prejudice to the appellant in the preparation of his defense. See Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); Pa.R.Crim.P., Rule 1100 Official Comment, 42 Pa.C. S.A. In the instant case, the appellant alleges that the delay in prosecution impaired his ability to present an alibi defense as to his presence in his stockbroker’s office on the day of the offense. Nevertheless, we are persuaded that “common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal under Rule 1100.” Commonwealth v. Polsky, 493 Pa. 402, at 407, 426 A.2d 610, at 613 (1981).

Due diligence is a concept defined on a case by case basis. It has been found where the Commonwealth relies on statements by officers of the responding jurisdiction that they will apprise the Commonwealth of progress in an extradition proceeding. Commonwealth v. Johnson, supra; see also Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978) (Commonwealth had no further duty to monitor defendant’s availability). The imposition of a duty to monitor the responding jurisdiction’s procedure is viewed as an unduly harsh burden. Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979).

Johnson, Warman and Emmett hold that due diligence is established by a justifiable reliance on the statements of a responding jurisdiction once the extradition process has been properly set in motion. In the instant case, due diligence has been proved where the Commonwealth has relied on prior successful international extradition experience, and it has followed the procedure suggested by Canada, the responding jurisdiction.

Finally, as to the six month period of inactivity, between August 14, 1981 and February of 1982, we agree with the court below that the Commonwealth justifiably believed that it had pursued the extradition to the full extent of its power, and that there was nothing further to do pending notification from the U.S. Department of State and the Canadian authorities.

The appellant was unavailable for trial until his return to the United States on August 11, 1982. His trial, on November 16, 1982, was well within one hundred eighty days of the date on which he became available, and the appellant’s rights under Rule 1100 were not violated.

WITHDRAWAL OF INITIAL COMPLAINT — FILING OF NEW CHARGES

The appellant next argues that the complaint filed on August 4, 1980 was improperly dismissed and that a therefore invalid second complaint was filed on May 15, 1982. This argument lacks merit.

The appellant’s argument is premised upon a misapprehension of the applicable section of the Pennsylvania Rules of Criminal Procedure. In 1980, at the time of the offense, Pa.R.Crim.P., Rule 150, 42 Pa.C.S.A., “Defects in Complaint, Citation, Summons or Warrant,” stated:

(b) Substantive Defects:

A complaint ... contains [sic] a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint ... and the issuance of process in which the defect is corrected in a proper matter.

Id., as amended September 18, 1973, effective January 1, 1974.

The appellant alleges that the complaint was withdrawn and refiled to avoid dismissal under Rule 1100. Insofar as we hold that the appellant was unavailable for trial from August 4, 1980 until August 11, 1982 (see pages 635-638 supra), the appellant’s right to a speedy trial was not violated by either complaint.

The record demonstrates that the initial complaint contained substantive defects requiring correction. The Commonwealth withdrew that complaint in the midst of protracted extradition proceedings to correct a misspelling of the appellant’s name and to drop a charge of conspiracy. Both corrections were in response to problems raised by the U.S. Department of State and were intended to expedite the appellant’s extradition. Both corrections were necessary to remedy substantive defects in the original complaint. See Pa.R.Crim.P., Rule 150, 42 Pa.C.S.A., Note (as amended September 18, 1973); see also Commonwealth v. Brocklehurst, 266 Pa.Super. 335, 404 A.2d 1317 (1980), aff'd, 491 Pa. 151, 420 A.2d 385 (1980) (incorrect middle name in complaint held substantive defect); Commonwealth v. Navarro, 276 Pa.Super.153, 419 A.2d 141 (1980), aff'd, 499 Pa. 279, 453 A.2d 308 (1982) (failure to make out prima facie case). Finally, although Rule 150, at that time, contained no procedural requirements, we note that the first complaint was properly dismissed by a competent judicial authority. We find no evidence of any attempt by the Commonwealth to evade the strictures of Rule 1100. Commonwealth v. Mumich, 239 Pa.Super. 209, 361 A.2d 359 91976); Commonwealth v. Brennan, 264 Pa.Super. 206, 399 A.2d 739 (1979).

APPELLANT’S MOTION TO DISMISS PURSUANT TO RULE 315

The appellant next questions whether the court below abused its discretion in refusing to dismiss the case pursuant to Pa.R.Crim.P., Rule 315, 42 Pa.C.S.A., Motion for Dismissal. We hold that the information in the instant case was filed within a reasonable time and that the court below properly denied the motion to dismiss.

The appellant’s preliminary hearing was held on August 23, 1982 and the information was filed on October 1, 1982. (Reproduced Record at 1(a)). The appellant asserts that the information should have been filed prior to the preliminary hearing pursuant to Pa.R.Crim.P., Rule 231, 42 Pa.C.S.a. The official comment to Rule 231 states that the bypass procedure should be used only in extraordinary circumstances.

The standard procedure, set forth in Pa.R.Crim.P., Rule 225, Pa.C.S.A., calls for the filing of an information after the preliminary hearing. As already discussed, Rule 1100 did not require the Commonwealth to proceed under Rule 231, nor did the extradition procedures require filing of the information by other than Rule 225. The court below properly dismissed the issue.

ADMISSION OF IDENTIFICATION TESTIMONY

The appellant next asserts that the court below erred in refusing to suppress the identification testimony of the Commonwealth’s chief eyewitnesses, Mrs. Shepler and Mr. Conn. We agree with the court below and hold that any improper suggestion in the pre-trial identifications was purged by proof of an independent basis for the in-court identifications.

The appellant alleges that the two photographic array identifications and an in-person line-up identification were unnecessarily suggestive. We agree with the court below that the Commonwealth proved these pre-trial identifications were valid. Lower Court opinion at 11.

Assuming, arguendo, that any of the pre-trial identifications were the result of impermissibly suggestive influences, the in-court identifications may still be admissible. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978). “It is the likelihood of misidentification which violates defendant’s right to due process, and it is this which is the basis of the exclusion of evidence.” Commonwealth v. Ransome, 485 Pa. 490, at 495, 402 A.2d 1379, at 1382 (1979) (citation omitted). The Commonwealth must prove the existence of an independent basis for the reliability of the identification by clear and convincing evidence. Commonwealth v. Lavelle, 277 Pa.Super. 518, 419 A.2d 1269 (1980). A court must consider the following factors in evaluating the likelihood of misidentification: the witness’ opportunity to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; the length of time between the crime and the confrontation. Commonwealth v. Slaughter, supra (quoting Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Both witnesses observed the appellant for an extended time in broad daylight. Mr. Conn, as Vice-President of Security at the bank, took special care to memorize the appellant’s features. Both witnesses testified that their attentions were fully fixed on the appellant. Their descriptions to the police were similar and both fit the appellant. Mr. Conn remained steadfast in his identification throughout the proceedings. Mrs. Shepler, although demonstrating some uncertainty at the preliminary hearing, identified the appellant with certainty throughout all other stages of the proceedings. In light of the factors enumerated by Slaughter, we find that the court below correctly admitted the in-court identifications.

SEATING OF THE TWELFTH JUROR

The appellant next contends that the court below erred in refusing to sustain his objection to the seating of the twelfth juror. We hold that the juror was correctly selected.

Pursuant to Pa.R.Crim.P., Rule 1106(e)(2), 42 Pa.C.S.A., the court below conducted a collective voir dire of the jury array. The appellant did not object to the selection of this procedure until counsel had exhausted his peremptory challenges and had learned the identity of the prospective twelfth juror. The appellant asserts that the failure of the court to supply him with a roster of jurors, detailing the order in which alternates were to be selected, resulted in an unfair selection process.

We note initially that the appellant has not alleged any material prejudice arising from the selection process. Nor does the appellant argue that the process failed to conform to Rule 1106(e)(2). We agree with the court below that the purpose of voir dire is not to provide counsel with the basis for exercising peremptory challenges, but is limited to the determination of whether a juror is subject to being challenged for cause, for lack of qualification, or for holding a fixed opinion or bias. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); see also Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533 (1979). The appellant has not shown that the selection process failed to secure a competent, fair, impartial and unprejudiced jury. Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953). The court below did not abuse its discretion in denying the appellant’s motion.

REFUSAL TO PERMIT TRANSCRIPT OF EXTRADITION HEARING TO BE READ INTO RECORD

The appellant next argues that the court below erred in denying his motion to read the transcript from the Canadian extradition hearing into the record. We hold that the lower court committed no error in refusing the motion.

The appellant chose to exercise his right not to take the stand, thereby making himself unavailable for cross-examination. Commonwealth v. Sandutch, 498 Pa. 536, 449 A.2d 566 (1982). To allow the transcript to be read to the jury would have denied the Commonwealth an opportunity to cross-examine the appellant, notwithstanding the adversarial nature of the Canadian extradition proceeding. The issue presented to the Canadian authorities was whether sufficient evidence had been adduced as would justify the appellant’s arrest and commitment for trial under Canadian law. In contrast, at trial the Commonwealth had the burden of proving the appellant’s guilt of theft by deception beyond a reasonable doubt under Pennsylvania law. For prior testimony to be admissible, the issue must remain the same in both proceedings. This requirement ensures that an opposing party had an adequate motive for testing the credibility of that testimony. Commonwealth v. Velasquez, 449 Pa. 599, 296 A.2d 768 (1972). The interests of the Canadian authorities, in a hearing to determine whether to extradite a Canadian resident, were substantially different from the interests of the Commonwealth. Admission of the testimony would have denied the Commonwealth its opportunity to cross-examine the appellant. “It is a fundamental principle of evidence that trial testimony is always subject to impeachment by the opposing party____” Commonwealth v. Sandutch 498 Pa. at 541, 449 A.2d at 568 (Roberts, J., concurring). The appellant wished to introduce his extradition testimony to bolster his alibi defense, but to shield that testimony from cross-examination by the Commonwealth. The court below correctly denied the motion.

CHARGE TO THE JURY

Finally the appellant contends that the court below erred in refusing to give the appellant’s requested charge or eyewitness testimony. We find that the appellant failed to preserve this issue for our review for want of a timely objection to the charge. Pa.R.Crim.P., Rule 1119(b), 42 Pa.C.S.A.; Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977).

Affirmed.

      . A more detailed chronology of the case history appears at Commonwealth v. DeMarco, No. 1665 C.D., slip op. pp. 4-9 (Court of Common Pleas of Dauphin County 1982). Note that the appellant stipulates the occasion of the extradition hearing in his statement of facts. Appellant's brief at 8. Under Pa.R.Crim.P. Rule 1100(d)(3)(i), 42 Pa.C.S.A., these three days are automatically excluded from the running of the statute, bringing the trial within one hundred eighty days of the filing of the second complaint.

      . See 42 Pa.C.S.A. § 9121, Uniform Criminal Extradition Act.

      . The detective had conducted this one extradition with a foreign country in eight years of supervising extradition matters for the county. (N.T. 84).

      . Treaty on Extradition, December 3, 1971, United States-Canada, 27 U.S.T. 985, T.I.A.S. 8237:
      ARTICLE 9
      (1) The request for extradition shall be made through the diplomatic channel.

      (2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the laws of the requesting State describing the offense and prescribing the punishment for the offense, and a statement of the law relating to the limitation of the legal proceedings.
      (3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his arrest and committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.

        Id. Article 9 (emphasis added).

      . Q Mr. Greco, in the spring of 1980, May, June and July, it was a hectic time in the market?
      A Very much so.
      Q So much so that you have no specific recollection of that day in and of itself, is that right?
      A Right.
      Q Do you recall specifically, sir, whether Mr. DeMarco was in your office that day or not?
      A No, I can’t recollect.
      Q On a routine basis did he come in and watch the stock ticker?
      A During those hectic days Mr. DeMarco and his son were in there practically every day.
      Q But you have no specific recollection of any single day, is that right?
      A Well, not really. First of all, it was two years ago and secondly things were so hectic in those days that I didn’t know, it was just a very hectic time____
      (Ñ.T. 232-233).

      . Compare Commonwealth v. Minnich, 324 Pa.Super. 339, 343, 471 A.2d 869, 871 (1984), in which this court held that error due to a Commonwealth criminologist's inaccurate work may not excuse delay under Rule 1100(c), and that the Commonwealth there failed to meet its burden of establishing "due diligence." We distinguish the instant case on the basis that the Commonwealth was relying on the misrepresentations of foreign authorities not under Commonwealth supervision.

      . The appellant cites to Pa.R.Crim.P., Rule 151, 42 Pa.C.S.A., Withdrawal of Prosecution.

      . Rule 150 was subsequently amended April 8, 1982, effective July 1, 1982.

      . The appellant was initially charged with conspiring with Gordon W. Mackie, a Canadian resident. Withdrawal of the first complaint effected a withdrawal of all charges against Mackie. (N.T. 113).

      . The first complaint was dismissed and the second complaint filed before District Justice William P. Rathfon. (N.T. 24).

      . Compare Commonwealth v. Braithwaite, 253 Pa.Super. 447, 385 A.2d 423 (1978) (Spaeth and Hoffman, JJ., dissenting) (proof of prosecutional motive irrelevant).

      . We note that the extradition was successfully processed without a statement concerning Rule 1100, although the Treaty on Extradition, Article 9(2), calls for such a statement.

      . See Appellant’s brief, pages 23-25, for specific allegations of impermissible suggestion.

      . See also Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977) (Hoffman, J., c mcurring and dissenting).

      . The appellant wore a different hairstyle, glasses and different attire at the preliminary hearing. (N.T. 74).

      . See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982); Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982) (that witness could not identify defendant in pre-trial process was relevant only to weight and credibility of testimony).

      . The transcript had been admitted into evidence pertaining to appellant’s argument under Rule 1100 (N.T. 283). The material which the appellant wished to have read was a transcript of his testimony at the extradition hearing in Canada. (N.T. 282).

      . Treaty on Extradition, Art. 9.

      . The appellant’s reliance on California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), is misplaced. The Supreme Court there held that a state statute allowing the admission of a witness’ prior inconsistent statement did not violate the defendant’s right of confrontation under the Vlth Amendment, where the witness was available to explain or deny the prior statement.


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    481 A.2d 641
    Stewart V. HAGGERTY and Martha Haggerty v. Philip Jay FETNER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Aug. 10, 1984.
    Petition for Allowance of Appeal Denied Nov. 29, 1984.

      Paul R. Beckert, Jr., Fairless Hills, for appellant.
    John T. Dooley, Lansdale, for appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, Judge:

In this case, the appellees, Stewart V. Haggerty and his wife Martha Haggerty, sold a farm located in Bucks County, Pennsylvania to the appellant in 1974 for $180,000.00. A first mortgage was granted to the appellant by the Federal Land Bank of Baltimore and the appellees, Dr. and Mrs. Haggerty, took back a second mortgage in the amount of $50,400.00. The appellant executed a note and mortgage in favor of the Haggertys in connection with this financing arrangement. Subsequently, considerable litigation between the parties ensued. The appellant commenced an action against the appellees and others in equity claiming that the appellees, their real estate agents, the title insurance company and the Pennsylvania Department of Revenue had conspired to defraud him by failing to disclose the existence of an encumberance against the property. The appellees in turn commenced an action in mortgage foreclosure against the appellant as he allegedly had not made all of the payments due under the second mortgage. This picture was further complicated as the first mortgagee, Federal Land Bank of Baltimore, commenced mortgage foreclosure proceedings against the appellant on its first mortgage. The appellant defended the Federal Land Bank’s legal action on the ground, inter alia, that the bank was guilty of fraud in the inducement in making the contract. The court below entered judgment in favor of Federal Land Bank and we affirmed. See Federal Land Bank v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979). Petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 10, 1979.

On October 24, 1979, the appellant and appellees entered into a settlement agreement, which was approved by the court below, designed to settle the litigation between the parties. The order provided that the appellees would satisfy the second mortgage upon payment by the appellant of $2,500.00 by January 31, 1980, subject to further extension, and payment by October 24, 1980 of $25,000.00. The agreement further provided that in the event the $25,000.00 payment was not made when due, the obligation of Dr. and Mrs. Haggerty to satisfy the mortgage:

shall become null and void and the Haggertys shall have the right to enforce their existing mortgage immediately in its full principal amount together with interest as stipulated in the said mortgage, less only such payments as they theretofore have been made by Fetner, or others on his behalf on account of such mortgage.

Appellant made the $2,500.00 payment when due. On July 11, 1980, the property was sold at sheriffs sale by the first mortgagee. Appellant made no payment toward the $25,000.00 due under the settlement agreement. On February 4, 1981, the appellees confessed judgment against the appellant on the basis of the note executed in connection, with the second mortgage. The confessed judgment was in the amount of $77,995.32. On that date written notice of the confession of judgment was given by the prothonotary to the appellant by ordinary mail in accordance with the requirements of Pa.R.C.P. 236. On May 15, 1981, the appellant filed his petition to open and/or strike the confessed judgment. Depositions of the parties were taken and on August 5, 1982, the court below through Ludwig, J. entered an order granting the appellant’s petition to open “for the sole purpose of determining damages. In all other respects the petition is denied.” It is from this order that an appeal has been taken to this court.

Initially, our attention must be directed to the appellees’ Motion to Quash the appeal on the basis that the appeal is from an interlocutory order since damages were not finally determined. On February 17, 1983, we denied the Motion to Quash without prejudice to the right of the appellees to present the issue to the panel. It was so presented and we will deny the motion. We agree that the order is interlocutory as the matter has not fully been disposed of in the court below. See Szwecki v. The Travelers Insurance Company, 324 Pa.Super. 32, 471 A.2d 109 (1984). However, the Pennsylvania Rules of Appellate Procedure, Rule 311(a)(1) provides:

Rule 311. Interlocutory Appeals as of Right (a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.

Accordingly, the Motion to Quash will be dismissed and the matter will disposed of on the merits.

A motion to open a confessed judgment is addressed to the sound discretion of the hearing court and the exercise of the court’s discretion will not be disturbed on appeal unless the court below has committed a manifest abuse of discretion or error of law. Lincoln Bank v. Kelly, 282 Pa.Super. 261, 422 A.2d 1106 (1980). As noted in the recent case of First Seneca Bank and Trust Co. v. Laurel Mountain Development Corporation, 324 Pa.Super. 352, 357, 471 A.2d 875, 877-78 (1984):

New principles are more clearly established in this Commonwealth than that a judgment debtor seeking to open a confessed judgment must act promptly, must allege a meritorious defense and must present such evidence of the defense as to indicate the issues are a question for the jury.

With respect to the type of evidence to be presented in support of a defense we stated in Weitzman v. Ulan, 304 Pa.Super. 204, 209, 450„A.2d 173, 176 (1982): “The petitioning party bears the burden of producing sufficient evidence to substantiate its alleged defenses ... The defenses raised must be ‘valid’ ones.” In the instant case, the court found that a valid defense had not been set forth, and we agree. Appellant has taken the rather anomalous position that he has a defense to the note based on fraud in the inducement and yet claims that the settlement of October 24, 1979 “was a full settlement of all disputes and controversies between the parties.” The basis of the dispute in the appellant’s equity action against the appellees in the court below was that the appellees and others had defrauded him in connection with the original sale of the farm. Appellant also raised fraud in the inducement in the mortgage foreclosure action against him brought by the Federal Land Bank of Baltimore. As we interpret the settlement agreement of October 24, 1979, all disputes concerning the alleged fraud were resolved and settled, and fraud in the inducement may not now be raised as a defense to the mortgage and note.

Although the underlying disputes were settled by the October agreement, the appellant still had the obligation to pay the appellees $25,000.00 as a prerequisite to the satisfaction of the second mortgage held by the appellees and in the absence of such timely payment “the Haggertys shall have the right to enforce their existing mortgage immediately in its full principal amount together with interest as stipulated in the said mortgage ...” The settlement agreement also provided:

In the event the subject property is sold pursuant to a tax sale, or judicial sale, pursuant to a mortgage sale, or judgment sale, the obligation to fulfill and satisfy the mortgage upon payment of Twenty Five Thousand Dollars shall be null and void.

Appellant argues that he has no further personal liability under the note and that the note did not survive the agreement. This contention lacks substantial merit. It is undisputed that the appellant made the $2,500.00 payment to the appellees but did not pay the $25,000.00. The parties under the settlement agreement, including the appellant, intended that the $25,000.00 should be paid when due and provided that if it were not paid the appellants still had their remedies under the note and mortgage. It would be completely unreasonable for the appellees to give up their rights under the note and mortgage if the $25,000.00 were not paid. One of the purposes of the settlement agreement was to assure payment by the appellant of this financial obligation. Since the property was sold at a foreclosure sale by the Federal Land Bank of Baltimore in July 1980, we can understand the appellant’s desire to avoid the obligation to pay the $25,000.00 but he is bound by the terms of the settlement agreement. We are not impressed by the appellant’s argument that the parties intended that only the mortgage and not the mortgage note was to survive the settlement agreement. If this were so, the appellees would have no real protection after a judicial sale on the first mortgage, as their second mortgage would be valueless. Appellant contends that:

It is submitted that is exactly what the parties intended and it is why that [sic] they granted the Haggertys the
right to not be bound by any limitation of their claim in the event of a judicial sale so that there would be no limitation in the right to participate but that given the overlay of time in the other action it was clear that it was within everybody’s contemplation that that was a risk involved in the settlement.

As far as the appellees were concerned the only risk they intended to assume was that the appellant would not pay the $27,500.00 he owed under the settlement agreement and they sought to protect themselves against that risk. Admittedly, the settlement agreement does not refer specifically to the appellees’ right to enforce the mortgage note and only refers to the mortgage. Nevertheless, the mortgage provides that “Mortgagor [appellant] agrees to comply with all of the provisions of the note.” The mortgage further provides that “The remedies of mortgagees [appellees] as provided herein, or in said note, and all warrants herein and in said note contained, shall be cumulative and concurrent ...” (Emphasis added). The mortgage and note were clearly related in this case and the appellees’ right to confess judgment on the note was not lost by virtue of the settlement agreement. We recognize that a mortgage and mortgage note are separate obligations. The note is evidence of the debt and mortgage provides the collateral security for the debt. Evanovich Estate, 487 Pa. 55, 408 A.2d 1092 (1979). In this case, however, the mortgage specifically gave the mortgagees, the appellees, all remedies under the mortgage note and this would include the right to confess judgment.

Pa.R.C.P. 2959(e) provides with respect to confessed judgments that “if evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.” See also, Industrial Valley Bank and Trust Company v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 428 A.2d 156 (1981). This rule determines the standard to be applied in determining whether a moving party has properly averred a meritorious defense. The First Pennsylvania Bank v. Lehr, 293 Pa.Super. 189, 438 A.2d 600 (1981). The test in evaluating the petitioner’s evidence is whether there is a sufficiently disputed issue to go to the jury. M.H. Davis Estate Oil v. Sure Way Oil, 266 Pa.Super. 64, 403 A.2d 95 (1979). Applying these rules, we agree with the court below that there was no issue to be submitted to the jury with respect to a proper defense to the entry of confessed judgment on the note.

The appellant contends that the confessed judgment must be stricken as the appellees failed to comply with the terms of the note by giving ten days notice that they were going to enter confessed judgment and because damages were assessed in a grossly excessive manner. A motion to strike a judgment will not be granted unless the fatal defect claimed appears on the face of the record. First National Bank of Fryburg v. Kriebel, 311 Pa.Super. 428, 457 A.2d 961 (1983). “If the alleged defect in the confessed judgment is based upon a matter dehors the record, the proper approach is to have the court open the judgment.” Equibank v. Dobkin, 284 Pa.Super. 143, 147, 425 A.2d 461, 463 (1981). In this case, the matters complained of do not appear of record and the court properly refused to strike the judgment. In addition, once the settlement agreement was reached between the parties there would appear to be no further requirement to give notice prior to the entry of confessed judgment in the event that the $25,000.00 was not paid, and in this case payment had not been made. With respect to the amount of the confessed judgment, if it appears that it is excessive this matter will be resolved when the court below determines the proper amount of the judgment. See H.A. Steen Industries, Inc. v. Richer Communications, Inc., 226 Pa.Super. 219, 314 A.2d 319 (1973). Appellant claims that proper credit was not given for payments previously made on the mortgage note and this also will be resolved at the hearing on the question of damages.

Appellant also contends that the court below erred in finding that the petition to open and/or strike the confessed judgment was not promptly filed. The court found that the appellant did not act promptly in petitioning the court to open the judgment and under the facts of this case, we agree. The confessed judgment was entered on February 4, 1981 and the prothonotary sent notice to the appellant. The petition to open or strike was filed on May 15, 1981. At the time the confessed judgment was entered the appellant was a lawyer with offices in Washington, D.C. He was involved in other activities besides the practice of law and spent time in third world countries on various business activities. Nevertheless, he maintained an office in Washington, D.C. with a secretary, and resided in that city. Appellant testified that during the period February, 1981, to May, 1981, he believed he was traveling in Africa and “the odds are very good that I was in Nigeria but I would have been in any one of about eight countries that I frequent in Africa.” He was not out of touch with his office for longer than several weeks. He testified that he was not sure if he had been out of the country without interruption from February to May, and that “if I came back at any point it would have only been for a very short period of time. At that time, I was returning to the States for maybe a week at a time.” Appellant testified that he did not actually see the prothonotary’s notice until May, 1981, although it was delivered to his office or home at an earlier date. The court below found that the petition to open was not promptly filed and the reason for the delay was unacceptable. “There is no time limit on the exercise of the power of a court to open a confessed judgment.” First National Bank of Allentown v. Stoudt, 237 Pa.Super. 238, 241, 352 A.2d 162, 164 (1975). However, the petition to open must be promptly filed. First Pennsylvania Bank v. Lehr, supra. The appellant knew, or should have known, that the first mortgage on his real estate was foreclosed in July, 1980 and that the farm he purchased had been sold. He certainly knew that he had not paid the $25,000.00 he owed on the note as set forth in the settlement agreement. He could not insulate himself from knowledge of the confession of judgment by a procedure jn which his secretary did not open his mail while he was out of the country on business for an extended period of time. Whether there is undue delay is a matter largely within the discretion of the court to which a petition to open is submitted. First Valley Bank v. Donatelli, 279 Pa.Super. 521, 421 A.2d 321 (1980). In the unusual circumstances of this case the court below did not abuse its discretion in refusing to open judgment.

Appellees’ Motion to Quash the appeal denied and Order of the court below affirmed.

WIEAND, J., filed concurring statement.

WIEAND, Judge,

concurring:

I agree with the majority that there was no basis on which the trial court could properly strike the judgment. I also agree that appellant failed to allege a defense sufficient to warrant an opening of the judgment. Under these circumstances, I find it unnecessary to determine whether appellant’s delay in filing a petition to open the judgment was adequately explained by his absence from the country.

      . The appellees proceeded in the court below by filing a "Complaint in Confession of Judgment” under Pa.R.C.P. 2951(b). Pa.R.C.P. 2951 sets forth the method of proceeding to enter judgment by confession on a note.

      . In his petition to open and/or strike the judgment entered by confession the appellant sets forth his defenses as follows:

        10. Petitioner, Defendant in the above-captioned action, avers that he has a meritorious defense in that:
      a. The settlement of the matter as set forth by the Order of the Court attached hereto as Exhibit "C” was a full settlement of all disputes and controversies between the parties, the sole remedy by which was granted to the Plaintiffs herein was a mortgage on the real estate, and that it was agreed and understood that there was to be no personal liability arising out of the transaction. Therefore, by the sale of the real estate, Defendant, Petitioner herein, is entitled to accord and satisfaction and discharge of all liabilities and obligations, if any, owed to the Plaintiffs.
      b. Alternatively, in the event that it is found there was no discharge of all liabilities as a result of the settlement of this matter, Defendant is entitled to prove fraudulent inducement and the other defenses raised in the pleadings attached hereto as Exhibits “A” and "B”, arising out of the transaction from which the mortgage note, which is the subject of these proceedings, was a part, which defenses are a complete and full defense to all actions hereto.
      c. It is further averred that the note and the authority to confess contained therein was expressly extinguished by the mortgage foreclosure, which extinguished any mortgage obligation out of which the note was a part, and therefore there was no authority inherent under the circumstances to confess under that provision.
      d. Further it is averred that the credits shown do not include Fifteen Thousand Dollars ($15,000.00) paid on account of the mortgage, which adjusts the balance due, affects the interest owed, the penalty and attorney’s commission, and the claim therefore is in error as a matter of record with the Court, and further that the claim for interest and penalty should not be assessed during the period of time over which there was litigation.

      . With respect to the risk of foreclosure on the first mortgage vis a vis the settlement agreement the appellant testified at deposition:
      Q. But you knew the property was either in foreclosure or in danger of being foreclosed at the time you entered this particular agreement, did you not?
      A. We all knew, including Judge Rufe.
      In addition, appellant testified at deposition concerning the settlement agreement:
      A. I don’t want to be misunderstood. I owed the Haggertys pursuant to this matter, $25,000, the security for which obligation was the real estate. The mortgage survived to that extent.

      . The appellant testified that he held a bachelor of arts degree from Yale University, a bachelor of law degree from Cambridge University in England and a doctor of jurisprudence degree from Harvard University.
      The appellant testified concerning his professional activities and associations at the time the confessed judgment was entered as follows:
      Q. Were you engaged in the active practice of law at that time?
      A. Well, I don’t know. That’s a conclusion. Active practice. I was doing some legal work so in that sense, I was not a full-time attorney in the sence of engaging full-time in the practice of law but I was handling some legal matters.
      Q. At that time, of what bars were you a member?
      A. I guess Pennsylvania and New York.
      Q. Were you a member of the Bar of Washington D.C.?
      A. No.
      Q. Where were your offices located in February of 1981?
      A. Well, I guess Washington, D.C. and abroad.
      Q. What was the office address in Washington?
      A. 1218 16th Street, Northwest.
      Q. Were you associated with any firm at that time?
      A. It was somewhere around that time, I was of counsel to the firm of Kirkwood, Kaplan, Russin & Vecchi. Somewhere in that period that was terminated. It could have been July, 1980 but it may not have been. It may have gone into ’81.
      Q. Did you have a secretary there?
      A. A secretary?
      Q. Yes.
      A. Yes.