author: McEWEN, Judge:

text:
    483 A.2d 505
    PUBLIC FEDERAL SAVINGS & LOAN ASSOCIATION, Appellant, v. Herman NEUMANN.
    Superior Court of Pennsylvania.
    Argued May 3, 1984.
    Filed Sept. 21, 1984.
    Reargument Denied Nov. 26, 1984.
    Petition for Allowance of Appeal Granted May 28, 1985.

      Stephen A. Sheller, Philadelphia, for appellant.

      Marc S. Weisberg, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BROSKY and McEWEN, JJ.
   McEWEN, Judge:

Public Federal Savings & Loan Association has appealed from the judgment entered in favor of appellee following dismissal of appellant’s exceptions to the decision of the trial judge in this mortgage foreclosure action. We reverse.

The parties submitted the case to the trial court on the basis of the following stipulated facts: Stephen Zeitz and Joyce M. Zeitz were the owners of the pertinent real estate located at 11106 Hendrix Street, in Philadelphia, Pennsylvania. On October 7, 1975, the Zeitzes executed and delivered a mortgage on the premises to appellant Public Federal Savings & Loan in the amount of $36,000 as security for a loan advanced to them by Public Federal. This mortgage was recorded the following day. On October 30, 1975, the Zeitzes executed a judgment note in favor of Provident Consumer Discount Company in the amount of $1,470.00. When the Zeitzes defaulted on the latter loan, Provident Consumer obtained a judgment against them and initiated execution proceedings against the Hendrix street property with the proviso that the property be sold by the sheriff subject to the mortgage in favor of Public Federal. Handbills containing notice of the sale and of the condition that the property was to be sold “subject to mortgage” were posted at the office of the sheriff and upon the property, as required by Pennsylvania Rule of Civil Procedure 3129(b)(1). Advertisements for the sheriff’s sale, which appeared on three separate dates in the Legal Intelligencer, also contained the statement that the property was to be sold subject to the mortgage. The successful bidder at the sheriff’s sale of July 12, 1976, offered $18,200 for the property. The successful bidder subsequently assigned his bid to the appellee and the sheriff thereafter conveyed the property to the appellee.

However, at the time of the sale by the sheriff, there existed two other judgments of record against the Zeitzes, both of which were prior in date to the mortgage in favor of appellant and both of which, although they had been paid in full, appeared as unsatisfied of record:

A judgment in the amount of $690.95 in favor of Diner’s Club, Inc., dated May 9, 1974, which had been paid on or about February 24, 1975, but was not marked satisfied of record until September 15, 1976.
A judgment in the amount of $600.55 in favor of Kacher, Schnall & Herman, P.C., dated July 28, 1975, which had been paid on or about October 7, 1975, but was not marked satisfied of record until September 20, 1976.

Appellee has refused to meet the obligations of the mortgage as a result of his contention that the two judgments which appeared of record as outstanding at the time of the sheriff’s sale discharged the mortgage of appellant as a matter of law.

It is well established in Pennsylvania that a sheriff’s sale of real property discharges all liens which are not satisfied of record at the time of sale. See Liss v. Medary Homes, Inc., 388 Pa. 139, 130 A.2d 137 (1957); Girard Life Insurance Co. v. Farmers’ and Mechanics’ National Bank, 57 Pa. 388 (1868); Silverman v. Real, 135 Pa.Super. 568, 7 A.2d 57 (1939). The legislature has provided, however, that, as a general rule, the sale of real property pursuant to a writ of execution does not affect the lien of a mortgage if the mortgage is prior to all other liens on the property. 42 Pa.C.S. § 8152. Therein lies the significance of the two judgments entered prior in time to the mortgage of appellant and unsatisfied as of record at the time of sheriffs sale. Had the judgments been satisfied as of record on the sale date, the mortgage of appellant would have been preserved by operation of the statute. See 42 Pa.C.S. § 8152(a). See also Liss v. Medary Homes, Inc., supra 388 Pa. at 144, 130 A.2d at 139-140; Dauphin Deposit Bank v. Howard O. Stouffer, Inc., 285 Pa.Super. 106, 109, 426 A.2d 1164, 1165 (1981). The fact that the judgments had, in fact, been paid is of no consequence; judgments previously paid but not marked satisfied of record do not prevent divesture of the lien of a subsequent mortgage by sheriffs sale. See Bradley v. Price, 396 Pa. 234, 235, 152 A.2d 904, 907 (1959); Warren Pearl Works v. Rappaport, 303 Pa. 235, 154 A. 587 (1931). See also Liss v. Medary Homes, Inc., supra 388 Pa. at 145, 130 A.2d at 140.

Appellant Public Federal Savings & Loan Association concedes that its mortgage was not preserved by operation of statute but contends that its mortgage lien has, nonetheless, been preserved by the common law exception that an execution sale “expressly ... subject to a prior lien” will not discharge the prior lien. Liss v. Medary Homes, supra, 388 Pa. at 143, 130 A.2d at 139. See also Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 223, 282 A.2d 335, 338 (1971).

The Pennsylvania Supreme Court has long recognized that parties are free to agree that a lien, which would otherwise be discharged by operation of law, will survive the execution sale. Ashmead v. McCarthur, 67 Pa. 326 (1871). See also Roberts v. Williams, 5 Wharton 170 (1840). Where preservation of a lien is a condition of sale, and this is understood by the parties, then the courts have held that the purchaser takes the property subject to the mortgage. Stackpole v. Glassford, 16 Sergeant & Rawle 163 (1827).

The facts of the instant case compel the conclusion that the successful bidder at the sheriffs sale, appellee’s assignor, agreed that the sale would not discharge the mortgage of appellant. Notices of sheriff’s sale constitute an invitation to submit offers to purchase on the terms stated therein. Williamson v. Hehl, 1 Sadler 361, 2 A. 222 (1886). Thus, a bid submitted by a prospective purchaser represents an offer to purchase on the offered terms for a specified sum. Cf. Hedden v. Lupinsky, 405 Pa. 609, 612, 176 A.2d 406, 408 (1962). Once an offer to purchase is accepted, the bidder is bound to honor his offer which implicitly includes the conditions set forth in the notice of sale. See Campbell v. Pittsburgh & Western Railway Co., 137 Pa. 574 (1890); Williamson v. Hehl, supra. See also Muse v. Letterman, 13 Sergeant & Rawle 167 (1825).

Contrary to the assertions of appellee, the holding of our Supreme Court in Liss v. Medary Homes, Inc., supra, does not compel a different conclusion. In Liss, a creditor other than the execution creditor announced at the time of the sheriff’s sale that her mortgage would not be discharged by the sale. Such a unilateral attempt to preserve the lien was held ineffective as a third party creditor has no right to impose a condition upon the terms under which the execution creditor is willing to receive offers of purchase. Cf. Muse v. Letterman, supra. Further, since a sale of realty subject to a lien would in all probability produce lower bids than the same property offered free of encumbrances, it seems only logical and fair that the execution creditor, and not any other creditor, should determine whether the. sale is to be subject to the lien of another.

Appellee’s assignor, by participating in the bid for the property on terms which included the preservation of appellant’s lien, agreed to assume the mortgage obligation. See Muse v. Letterman, supra. Appellee, therefore, cannot now assert that the lien was discharged by the sheriff’s sale.

Order of the court reversed. Case remanded for the entry of judgment in favor of the appellant.

Jurisdiction relinquished.

      . 42 Pa.C.S. § 8152 provides:
      § 8152. Judicial sale as affecting lien of mortgage
      (a) General rule. — Except as otherwise provided in this section, a judicial or other sale of real estate shall not affect the lien of a mortgage thereon, if the lien of the mortgage is or shall be prior to all other liens upon the same property except:
      (1) Other mortgages, ground rents and purchase money due the Commonwealth.
      (2) Taxes, municipal claims and assessments, not at the date of the mortgage duly entered as a lien in the office of the clerk of the court of common pleas.

        (3) Taxes, municipal claims and assessments whose lien though afterwards accruing has by law priority given it.
      (b) Property of a decedent, etc. — A judicial sale of the property shall divest the lien of a mortgage to the extent authorized by the court pursuant to the following provisions of Title 20 (relating to decedents, estates and fiduciaries):
      Section 3353 (relating to order of court).
      Section 3357 (relating to title of purchaser).
      (c) Sale on prior lien. — A judicial or other sale of real estate in proceedings under a prior judgment or a prior ground rent, or in foreclosure of a prior mortgage, shall discharge a mortgage later in lien.
      (d) Unseated lands. — Subsection (a) shall not apply to mortgages upon unseated lands or sales of unseated lands for taxes.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    483 A.2d 509
    Helen M. WALASAVAGE, Administratrix of the Estate of Francis R. Walasavage, Appellant, v. Tony MARINELLI and Joseph Marinelli, d/b/a City Welding and Manufacturing Company, a/k/a City Welding, v. George McCLYMONDS, Mark McClymonds, Frank A. Weber, The Chester Engineers, Inc., Robinson Service and Equipment Company, Inc., Marona Construction Company, MGM Spring Brakes, Inc. v. ROBINSON SERVICE & EQUIPMENT, INC. Helen M. WALASAVAGE, Administratrix of the Estate of Francis R. Walasavage v. Tony MARINELLI and Joseph Marinelli, d/b/a City Welding and Manufacturing Company, a/k/a City Welding v. George McCLYMONDS, Mark McClymonds, Frank A. Weber, The Chester Engineers, Inc. Robinson Service and Equipment Company, Inc., Marona Construction Company, MGM Spring Brakes, Inc. v. ROBINSON SERVICE & EQUIPMENT, INC., Appellant. Helen M. WALASAVAGE, Administratrix of the Est. of Francis R. Walasavage v. CITY WELDING AND MANUFACTURING COMPANY, INC., Appellant, v. George McCLYMONDS, Mark McClymonds, Frank A. Weber, The Chester Engineers, Inc., Robinson Service and Equipment Company, Inc., Marona Construction Company, MGM Spring Brakes, Inc. v. ROBINSON SERVICE & EQUIPMENT INC., Tony Marinelli and Joseph Marinelli.
    Superior Court of Pennsylvania.
    Argued March 1, 1984.
    Filed Sept. 21, 1984.
    Reargument Denied Nov. 27, 1984.

      Lee C. McCandless, Butler, for Robinson, appellant (at No. 874) and appellee (at Nos. 985 and 1062).
    Thomas B. Rutter, Philadelphia, for Walasavage, appellant (at No. 985) and appellee (at Nos. 874 and 1062).
    Richard Audino, New Castle, for City Welding, appellant (at No. 1062) and appellee (at Nos. 874 and 985).
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

On August 25, 1978, Francis R. Walasavage was working beside a chute at the rear of a triaxle dump truck which was owned by George McClymonds, and was being operated by Mark McClymonds. Mr. Walasavage was controlling the flow of hot asphalt from the truck bed, through the chute, and into a sewer trench when the entire tailgate of the truck suddenly opened, burying him in hot asphalt. He lost his life as a result of the injuries he received. The truck’s tailgate assembly was manufactured by City Welding & Manufacturing Company (hereinafter referred to as “City Welding”). The dump truck had been sold to George McClymonds by Robinson Service & Equipment, Inc. (hereinafter referred to as “Robinson”).

Subsequently, Helen M. Walasavage, widow of Francis, and Administratrix of his estate, instituted this wrongful death and survival action against City Welding as the result of her husband’s death. City Welding joined George and Mark McClymonds, the owner and the operator of the dump truck as additional defendants. The McClymonds then brought Robinson into the case as an additional defendant. City Welding also joined several other persons and entities as additional defendants. The lower court directed verdicts in favor of all such other parties. They are no longer involved in the case or the instant appeal, and we are presented with no issues regarding them.

The case was bifurcated for trial. Thus, the jury considered the possible liability of City Welding and Robinson on strict liability grounds, and the possible liability of George and Mark McClymonds on theories of negligence. A verdict in favor of the Plaintiff was returned against City Welding and Robinson, and the jury found both McClymonds to be free of liability. Subsequently, the lower court granted Robinson’s motion to mold the verdict, ordering that Robinson was entitled to indemnity from City Welding as a matter of law.

After post-trial proceedings in the lower court, the Plaintiff, Robinson, and City Welding have all filed appeals to our Court which have been consolidated for our consideration. We shall review the claims of each appellant, below.

Appeal of Robinson Service and Equipment, Inc.

(No. 874 Pittsburgh, 1982)

Robinson first argues that it should not have been held liable under Section 402A of the Restatement (Second) of Torts, as it was not a “seller” of dump trucks within the meaning of that term in the Restatement section. Robinson claims that it acted only as an intermediary between George McClymonds and City Welding by installing the dump truck body on the chassis and cab it had sold to McClymonds. Robinson further contends that as the seller of the chassis and cab, it cannot be held liable for an injury which resulted from a defect in the dump body manufactured according to the specification of George McClymonds, which it merely relayed to City Welding on behalf of McClymonds.

In Webb v. Zern, 422 Pa. 424, 220 A.2d 858 (1966), the Pennsylvania Supreme Court adopted Section 402A of the Restatement (Second) of Torts. That section provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975), the Court held that to recover against a supplier under a theory of strict liability requires, in substance, only two elements of proof: that the product was defective, and that the defect was the proximate cause of the plaintiffs injuries. Robinson does not dispute the fact that the truck’s tailgate mechanism was defective when the truck was supplied, or the fact that the defect was the proximate cause of decedent’s injury. Rather, as noted above, Robinson urges that it was not á “seller” as defined in Section 402A.

It has been held that the term “seller” in Section 402A is used generically to include all suppliers of products. Berkebile v. Brantly Helicopter Corp., id. All those engaged in the business of supplying products for use or consumption by the public are subject to strict liability for injuries caused by a defective condition unreasonably dangerous to the user or consumer of his property. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). The record establishes that the evidence was sufficient to support the jury finding that Robinson was liable under § 402A as a supplier of a defective product, which defect caused decedent’s injuries. Robinson had been in the business of selling trucks for approximately twenty-five years at the time of trial. George McClymonds needed a dump truck with a chute in the middle of the tailgate and suggested that Robinson obtain the dump body from City Welding, which it did. Robinson then installed the defective dump body on the chassis and sold the completely assembled dump truck to Mr. McClymonds. Such evidence amply supports the conclusion that Robinson could be found liable as a “seller” under Section 402A.

Robinson also contends that the lower court erred by instructing the jury that Robinson was invoking the defense that it was an occasional seller. Robinson claims this was error because it defended on the basis that it was not a seller of dump trucks at all. We find that any arguable error in the jury instructions regarding the occasional seller rule was harmless. In response to a special interrogatory, the jury specifically found Robinson not to have been an occasional seller of dump trucks and the evidence fully supports that conclusion. The lower court’s instruction could only have had the effect of permitting the jury to absolve Robinson of liability. Therefore, we can discern no basis for granting relief to Robinson based upon the court’s charge on the occasional seller rule.

We therefore reject the arguments and appeal of Robinson.

Appeal of Helen M. Walasavage, Administratrix of the Estate of Francis R. Walasavage

(No. 985 Pittsburgh, 1982)

Helen M. Walasavage appeals from the Order of the lower court entered July 12, 1982, granting the exceptions of City Welding to the bill of costs filed on behalf of the Plaintiff. The lower court permitted Ms. Walasavage to recover the record costs, whereas she demanded various other costs totaling over $20,000.00. Specifically, she contends that the lower court erred in denying her request for reimbursement of all costs incurred in connection with her successful litigation, including expert witness fees and costs, subpoena costs, witness travel expenses, meals and lodging expenses for lay witnesses, telephone and postage expenses and other “non-record” costs incurred.

We know of no authority for an award to a successful litigant in cases like the instant one of such expenses as the Plaintiff seeks. She cites no authority for her request and frankly declares that she desires that this Court establish a new rule permitting such costs to be recovered. While the Plaintiff’s contentions are thought-provoking, we decline to exercise any authority we may have as an appellate court in this Commonwealth to alter the established practice of limiting cost recovery in cases such as the instant one to record costs. Such a significant and fundamental change as that sought by the Plaintiff-Appellant involves considerations best left to either the legislature or to our Supreme Court, which has the ultimate judicial authority in our Commonwealth to establish rules governing the imposition and taxation of costs in litigation. See the Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. §§ 1701, 1726. We find no error and will not disturb the lower court’s order rejecting the Plaintiff’s request for the reimbursement of non-record litigation expenses.

Appeal of City Welding & Manufacturing Co.

(No. 1062 Pgh. 1982)

City Welding maintains that the lower court’s refusal of its motion for judgment non obstante veredicto and/or a new trial was an abuse of discretion. In a blunderbuss attack, City Welding advances almost every conceivable and many inconceivable arguments against virtually all aspects of the proceedings in the lower court. Although we have thoroughly reviewed all such contentions, considerations of time and space constrain us to limit our discussion to those points which are not obviously devoid of even arguable merit.

Initially, we note that on appeal from the refusal of the lower court to enter judgment n.o.v., the sole duty of the appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and influences. McDevitt v. Terminal Warehouse Company, 304 Pa.Super. 438, 450 A.2d 991 (1982). The grant or denial of a new trial is within the sound discretion of the trial court, whose decision will be reversed only where the record indicates that the trial court committed an error of law or clearly and palpably abused its discretion. Palmer v. Brest, 254 Pa.Super. 532, 386 A.2d 77 (1978).

City Welding first contends that the lower court erred in not instructing the jury regarding intervening acts or superseding causes under Section 402A of the Restatement (Second) of Torts. City Welding argues that the use of the chute in the truck, which was apparently designed as a coal chute, to unload hot asphalt, was not reasonably foreseeable by the manufacturer and that this “misuse” was the primary or superseding cause of decedent’s injuries.

Given the occurrence of a malfunction or a defect, intervening negligence assumes legal significance only if it is a superseding cause of the victim’s injuries and questions of proximate causation should normally be left to the trier of fact. Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 319 A.2d 914 (1974). The record shows that in the instant case the lower court permitted the jury to find against all the Defendants separately or jointly, and to consider the theories of strict liability and negligence separately. The jury specifically determined that neither George McClymonds, the owner, nor Mark McClymonds, the operator, were negligent with regard to Mr. Walasavage’s accidental death. They were the only persons or entities whose conduct could have been found to be intervening or superseding to that of City Welding or Robinson. Evidence was presented that the tailgate was defective when the truck was supplied to the owner and operator. The jury obviously determined that such a defect existed, and that the problem substantially contributed to the harm which befell Mr. Walasavage. In view of such findings, and the instructions given by the lower court, we can discern no reversable error in the lower court’s failure to charge the jury on intervening cause and superseding negligence rules.

We next address City Welding’s argument that the lower court erred in failing to charge the jury on the doctrine of assumption of risk. However, assumption of the risk is a defense in a strict liability case brought pursuant to Section 402A only if the injured party knows of the specific defect causing injury and voluntarily proceeds to use the product with knowledge of the danger caused by the defect. Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). In the instant case, there was no evidence presented that decedent knew of the defect that caused his death or appreciated the danger surrounding the defect. Therefore, an assumption of risk charge would have been improper and the lower court correctly refused the request for such a charge.

City Welding contends that the lower court erred in allowing the testimony of Dr. Andrew Verzilli regarding damages, and compounded its error when it instructed the jury that the testimony indicated decedent would have earned $60,000.00 each year until retirement at age sixty-five. The admission of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be reversed unless the court clearly abused that discretion. Junk v. East End Fire Dept., 262 Pa.Super. 473, 396 A.2d 1269 (1978). It appears that Dr. Verzilli based his testimony upon accepted economic concepts concerning the yearly growth rate of decedent’s income. The jury was free to accept or reject Dr. Verzilli’s testimony relating to decedent’s future earning capacity. We conclude that the lower court did not abuse its discretion in allowing the testimony of Dr. Vergilli concerning damages. With regard to its charge to the jury on the testimony of the expert as to a yearly salary, we also find no reversible error. Even if we assume that the court incorrectly restated Dr. Verzilli’s testimony as the predicted losses of earnings, the court correctly instructed the jurors that if the court misstated any figures or facts, that it was the jury’s recollection that was controlling, and not the court’s. We are also mindful that the jury considered the testimony of other experts on the question of lost earnings and damages. We find that the lower court committed no reversible error under these circumstances.

We next examine City Welding’s claim that the verdict, in the amount of $838,400.00 was grossly excessive, and cannot stand. We do not agree. It is well-established that the duty of assessing damages is within the province of the jury and should not be disturbed by the court unless it clearly appears that the amount awarded results from caprice, prejudice, partiality, corruption or some undue influence. Tonik v. Apex Garages, Inc., 442 Pa. 373, 378, 275 A.2d 296, 299 (1971). There is nothing in the entire record to suggest the existence of such factors. Therefore, we will only consider the verdict excessive if it shocks our sense of justice. Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982). In view of the loss of life of Mr. Walasavage, the expert testimony offered as to lost earnings, and other evidence in the record, we simply do not find the jury’s award to be shocking or unjust.

City Welding urges that reversible error occurred when the trial judge permitted the jury to retain a sheet of paper setting forth the various categories of damages recoverable in wrongful death and survival actions. There is no suggestion of real prejudice resulting to City Welding as a result of the jurors’ retention of the document in issue. Accordingly, we find no basis for awarding a new trial because the jury had possession of the paper.

City Welding next maintains that the lower court erred in refusing to permit its counsel to read the entire transcript of the pre-trial deposition testimony of one Fred Adams to the jury during the trial. There is no merit in this contention. The court’s ruling was entirely correct in light of the fact that Mr. Adams was present at trial and was actually called as a witness. Pennsylvania Rule of Civil Procedure 4020(a)(3)(e) provides for the use of deposition testimony of a non-party witness, where the witness is available to testify at trial, only under exceptional circumstances. City Welding has suggested no exceptional circumstances which would have justified the court in allowing the whole of Mr. Adams’ deposition testimony to be read to the jury at trial.

City Welding raises the argument that the lower court erred in admitting evidence concerning an experiment conducted by City Welding in which the dump truck was filled with gravel, the bed of the truck was raised, and the tailgate flew open. It is well settled that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of that discretion exists. Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). We perceive no abuse of discretion by the lower court in permitting testimony concerning the experiment in question.

Next presented is the contention that the lower court erred in permitting the Plaintiffs expert witness, Dr. John Lepone, to testify regarding matters that were not included in his original report. Appellant cites Pennsylvania Rule of Civil Procedure 4003.5(c) to support its argument. While City Welding has generally asserted that this produced “an element of surprise”, it has not suggested any specific prejudice it suffered or any other handicap resulting from the admission of the testimony in question. Our own review of the record has disclosed no possibly significant prejudice to City Welding, even assuming the testimony in issue was admitted in violation of the Rule. Therefore, we cannot conclude that a new trial is mandated as the result of the admission of such testimony, and reject the Appellant’s claim.

City Welding urges that the lower court committed a serious abuse of discretion and reversible error in refusing to grant its request for a continuance as the result of the illness of an attorney. The record shows that at the inception of the case Richard McCandless, Esq. and Richard J. Audino, Esq. entered separate appearances for City Welding. Mr. McCandless was designated by P.M.A. Insurance Company, the liability insurance carrier for City Welding, and Mr. Audino was selected by City Welding as its private counsel. Thereafter, all pre-trial proceedings were conducted by Mr. McCandless, who executed all papers in the name of City Welding and handled all discovery matters and the process of selecting and preparing witnesses. Thus, it is clear that Attorney McCandless served as lead defense counsel. Moreover, it appears that the participation of Mr. Audino and one of his associates in pre-trial preparations and procedures was minimal.

On February 16, 1982, the day of the trial, Mr. McCandless submitted an application for continuance on the grounds that Mr. Audino has suffered an apparent heart attack four days earlier, and would be unable to appear at trial. The Plaintiff objected to the application on the grounds that she had prepared for trial at great expense and would be prejudiced by a postponement since she had summoned twenty witnesses to testify, some coming from as far as Maine, and expert witnesses coming from both Pittsburgh and Philadelphia. The lower court denied the request for a continuance, and the trial proceeded without Attorney Audino.

City Welding argues that Attorney McCandless could not properly represent it in the absence of Mr. Audino because of the possibility of a verdict in excess of the limits of its insurance policy. However, our examination of the record convinces us that Mr. McCandless made every effort to win a verdict for City Welding and to minimize the amount of damages the jury might award if it found City Welding liable. The Appellant has not pointed out, nor does our thorough review disclose any aspect of conduct by Attorney McCandless which would suggest he favored P.M.A. Insurance vis-a-vis City Welding or did not capably strive to protect City Welding’s exposure to liability in excess of the insurance policy limits. No conduct on his part is now challenged by the Appellant, nor is any action suggested which he may have neglected, or performed in a substandard fashion to the detriment of City Welding. We cannot ignore the maxim that an insurer owes its insured a duty of good faith, and a violation of that duty may lead to liability for the full amount of the verdict against the insured. Cowden v. Aetna Casualty & Surety Company, 389 Pa. 459, 134 A.2d 223 (1957); Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635 (1981).

The trial court is vested with broad discretion in the determination of whether a request for a continuance should be granted, and an appellate court should not disturb such a decision unless an abuse of that discretion is apparent. In Re Hall, 288 Pa.Super. 495, 432 A.2d 621 (1981); Love v. Harrisburg Coca Cola Bottling Co., 273 Pa.Super. 210, 417 A.2d 242 (1979). We must carefully scrutinize with extra care the lower court’s action in denying a continuance when such action operates to deprive a litigant of his chosen counsel, or may leave him with alternative counsel with arguably conflicting loyalties or interests. Having such cautions in mind in the instant case, we still must conclude that there was no abuse of discretion by the lower court here, where it is clear that the Appellant suffered no demonstrable or even suggested prejudice as the result of Mr. Audino’s absence or representation by Mr. McCandless. Moreover, we cannot ignore the clear prejudice which would have resulted to the Plaintiff had the requested continuance been granted. Therefore, we reject the Appellant’s request for new trial based upon the lower court’s refusal of a continuance.

We next turn to the claim by City Welding that the lower court erred in granting full indemnification against it and in favor of Robinson. City Welding argues that in a strict liability case under Section 402A the seller of a defective vehicle is as responsible for resulting injury as the manufacturer of the vehicle and thus should not be entitled to a right of indemnification from the manufacturer. However, the general rule is that indemnification is proper in such a case. The law places final responsibility in such instances upon the party primarily responsible for the defective prod-

uct, in most instances its manufacturer. In Burbage v. Boiler Engineering and Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969), a strict liability case brought under Section 402A, the Pennsylvania Supreme Court held that a boiler manufacturer was entitled to indemnity from the manufacturer of a defective valve on the grounds that the responsibility for discovery and prevention of the defect should ultimately be upon the valve manufacturer. The Court stated:

The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by law to an injured party. The right to indemnity enures to a person who, without active fault on his own part, has been compelled by reason of some legal obligation to pay damages occasioned by the negligence of another. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence but rather on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal obligation between the parties or arising from some positive rule of statutory or common law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. Id., 433 Pa. at 326, 327, 249 A.2d at 567.

In the instant case City Welding initially allowed the dump truck to leave its possession in a defective condition and Robinson’s liability arose solely because it became a seller of the vehicle. Therefore, we find that the lower court correctly ruled, as a matter of law, that Robinson was entitled to full indemnification from City Welding.

As noted earlier, we have reviewed a number of other contentions raised by City Welding and determined them to be devoid of even arguable merit. We therefore reject all of the arguments raised by City Welding that the lower court erred in refusing its motions for judgment n.o.v. or a new trial.

Affirmed.

      . In Berkebile v. Brantly Helicopter Corp., supra, the court held that occasional sellers who are not in the business of selling or supplying such products are not "sellers” subject to strict liability.

        . The Plaintiffs Complaint identified this Defendant as: Tony Marinelli and Joseph Marinelli, d/b/a City Welding and Manufacturing Company, a/k/a City Welding. A stipulation was filed thereafter in the lower court amending the name of the Defendant to: City Welding & Manufacturing Co.

      . The jury was instructed regarding City Welding that: "... Where the defective condition combines with other circumstances and other forces to cause harm suffered by the Plaintiff, the Defendant or Defendants are responsible for the harm if the defective condition was a substantial contributive factor in bringing about the harm.”

      . The court properly allowed parts of the deposition testimony to be used at trial for the purpose of attempting to impeach his credibility. See Pennsylvania Rule of Civil Procedure 4020(a)(1).

      . Appellant refers us to Rule 4003(c), which does not exist. We have assumed that it was intended that we rely on Rule 4003.5(c), which provides:
      To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.


author: CERCONE, President Judge: SPAETH, Judge,

text:
    483 A.2d 519
    COMMONWEALTH of Pennsylvania v. Gary Lee SLYMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1981.
    Filed Sept. 21, 1984.
    Reargument Denied Nov. 27, 1984.
    Petition for Allowance of Appeal Denied March 18, 1985.

      Alan Ellis, Freedom, for appellant.
    John L. Brown, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   CERCONE, President Judge:

This is a direct appeal from the judgment of sentence imposed on October 8, 1980 by the Honorable John N. Sawyer, President Judge of the Court of Common Pleas of Beaver County.

On December 21, 1979, appellant was arrested and charged in six informations with sundry violations of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter referred to as “the Act”). Following a trial by jury, appellant was convicted on May 7, 1980 of six counts of possession with intent to deliver and delivery of cocaine; one count of possession with intent to deliver and delivery of LSD; one count of conspiracy to deliver cocaine; one count of possession of cocaine; and one count of possession of marijuana.

Timely written post-verdict motions in arrest of judgment and for a new trial were filed and denied. Appellant was sentenced, inter alia, to undergo imprisonment in a state correctional facility for a period of not less than one and a half (1%) nor more than three (3) years. This period of internment was then to be followed by a consecutive term of probation of three (3) years. In addition, appellant was ordered to make restitution in the sum of Three Thousand Nine Hundred and Eighty-Five Dollars ($3,985), and pay a fine of Five Thousand Dollars ($5,000) together with the costs of his prosecution.

The facts and procedural history relevant to the instant appeal are as follows: Dale W. Kenst, Jr., a paid informant for the Commonwealth, met with appellant on October 26, 1979 at Larry’s Speed Shop, appellant’s place of business, for the purpose of consummating an illicit sale of drugs. Acting on behalf of Agent Charles A. Gahagan of the Pennsylvania Department of Justice, Kenst purchased approximately one gram of cocaine from appellant. Later that same day, appellant sold to Kenst an additional one-half ounce of cocaine for One Thousand Dollars ($1,000). Kenst delivered the cocaine purchased in the two transactions to Agent Gahagan.

• Gahagan returned alone to the Speed Shop on December 5, 1979 and again purchased one-half ounce of cocaine from appellant for Nine Hundred Fifty Dollars ($950).

On December 12, 1979, Gahagan procured from appellant one ounce of cocaine at a cost of One Thousand Eight Hundred Seventy-Five Dollars ($1,875), as well as one hundred (100) dosage units of LSD for the price of One Hundred Sixty Dollars ($160).

Agent Gahagan met with appellant at the Speed Shop on December 21, 1979 in order to secure an additional four grams of cocaine which appellant agreed to furnish on the previous day. Upon his arrival at the shop, Gahagan was shown two of the promised four ounces of the drug and was advised to wait for the remaining half of his order which, he was told, was due to be delivered to the Speed Shop by appellant’s supplier within minutes. At approximately 2:20 p.m., a vehicle driven by an individual subsequently identified as appellant’s confederate, George Gordon, pulled to a stop in front of the store. Gordon alighted from his automobile and entered the store where he met with appellant for a brief period. After Gordon departed from the premises, appellant informed Agent Gahagan that the additional two ounces of cocaine had just been delivered by his supplier and that he was now prepared to conclude the transaction. Gahagan then identified himself as a policeman and attempted to place appellant under arrest.

Upon learning Gahagan’s true identity, appellant fled the store clutching a tan-colored jacket which he quickly discarded on the street. Other law enforcement officers who were secretly observing the proceedings in the Speed Shop gave chase to appellant and apprehended him in short order. After appellant was taken into custody, his jacket was impounded and a cursory search conducted of its pockets without a warrant. This inspection yielded a plastic bag containing approximately seven grams of cocaine.

Following on the heels of appellant’s arrest was the issuance of a search warrant for his apartment. Acting pursuant to the warrant, law enforcement officials confiscated small amounts of cocaine and marijuana as well as a scale allegedly used in weighing drugs.

By a pre-trial motion, which was subsequently denied by the court, trial counsel for appellant had moved to suppress evidence of the seizure of the controlled substances from appellant’s residence. Counsel did not endeavor to suppress the Commonwealth’s use of the cocaine removed from appellant’s jacket after his apprehension. In addition, he did not oppose the consolidation in one trial of the fifteen separate criminal offenses with which appellant was charged. Counsel did, however, seek a continuance of the trial four days prior to its scheduled commencement. The reason stated in support of this request was counsel’s inability to obtain a treatise entitled “Cocaine: Legal and Technical Defenses in Cocaine Prosecutions.” Counsel contended that the book was necessary in his preparation for trial given the fact that he had never previously represented a defendant in a case involving cocaine. The trial judge refused to grant the continuance and directed appellant to proceed to trial.

In taking this appeal, appellant raises fifteen issues for our resolution. We will address them in seriatim fashion.

1.

Appellant first contends that the evidence adduced by the Commonwealth at trial was insufficient as a matter of law to prove him guilty of the various “cocaine offenses” with which he was charged. The crux of this argument is that the Commonwealth failed to prove beyond a reasonable doubt an essential component of each of the crimes charged, viz., that the substance which appellant sold to an undercover state trooper, and which was later confiscated from appellant’s person and residence, was a “controlled substance” as that term is defined in Schedule II of the Act. Appellant maintains that under the terms of Section 104(2)(i)(4) of the statute, cocaine will qualify as a controlled substance only if it is that variety of cocaine which is naturally derived from coca leaves. He posits that only L-cocaine is proscribed under this section since, as the testimony elicited at trial clearly established, it alone among the eight varieties or isomers of cocaine extant is produced directly through extraction from coca leaves. Consequently, he argues that because the testing procedures employed by the Commonwealth’s chemists on samples of the cocaine seized from him were incapable of distinguishing between the naturally occurring L-cocaine and a synthetically producible form of cocaine known as D-cocaine, the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the substance in question was in fact a “controlled substance.” We are not persuaded by this argument.

At trial, appellant presented as his only witness Dr. Gordon R. Johnston, a professor of organic chemistry at the Pennsylvania State University. Dr. Johnston testified that the term “cocaine” is meaningful only in a generic sense and that in reality, there are eight distinct isomers of cocaine. Isomers are two or more compounds which share with one another the same molecular formula while possessing different structural arrangements and properties. Dr. Johnston averred that only the isomer L-cocaine occurs naturally in coca leaves. Thus, appellant argues that since only L-cocaine is derived naturally from coca leaves, it alone is a controlled substance, and because the Commonwealth was unable to distinguish between L-cocaine and the synthetically producible form of cocaine known as D-cocaine, the charges filed against appellant were not proved beyond a reasonable doubt. In other words, appellant contends that the tests conducted by the Commonwealth chemists in analyzing the substance sold by appellant to Agent Gahagan as “cocaine” failed to winnow the allegedly non-prohibited from the prohibited isomeric forms of cocaine.

The Commonwealth’s expert witnesses, two forensic chemists, Scott Ermlick and Christine Tomsey, described the techniques utilized in testing the drugs as well as their views on the actual identity of the substance. These chemists concurred in the testimony elicited from Dr. Johnston concerning the existence of eight separate types of cocaine. Scott Ermlick agreed with Dr. Johnston that of these various isomers, only L-cocaine is found in coca leaves, but in addition, testified that D-cocaine is a synthetically producable form of cocaine. Both Ermlick and Tomsey testified under cross-examination that the four tests which they performed on the substance did not conclusively identify it as L-cocaine. They did state, however, that from the performance of a color test, a sniff test, a micro-crystal test and an infra-red spectraphotometry test, they were able to confirm the presence of only two of the eight isomeric forms of cocaine known to exist. These isomers were identified as the synthetic D-cocaine and the organic L-cocaine. The issue then becomes whether only L-cocaine is a controlled substance or whether D-cocaine also fits into this category.

We find that, contrary to appellant’s representations, the terms of Section 104 make clear that the statute’s prohibitory sweep is sufficiently wide so as to embrace those varieties of cocaine which are susceptible of synthetic derivation. Paragraph (i) of Section 104(2) of the Controlled Substance, Drug, Device and Cosmetic Act furnishes this description of a Schedule II controlled substance:

(i) Any of the following substances ... whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis: (Emphasis added).

35 P.S. § 780.104(2).

Thus, it is readily apparent that the framers of the Act, given the statute’s broad aim of protecting citizens of this Commonwealth from the deleterious effects of certain harmful drugs, intended to prohibit all varieties of cocaine including that derived directly from coca leaves as well as that synthetically produced in the laboratory) such as D-cocaine, which the Commonwealth’s experts identified in this case. Insofar as both parties to the instant appeal agree that the Commonwealth’s laboratory experts conclusively identified the white powder seized from appellant as being either the naturally-occurring L-cocaine or the synthetic D-cocaine, and in view of our holding that the Act proscribes cocaine in both its natural and synthetic forms, the Commonwealth’s evidence .was more than sufficient to uphold appellant’s conviction of the numerous cocaine offenses.

In measuring the sufficiency of evidence forming the basis of a criminal conviction, we must inquire whether — accepting as true all the evidence upon which a jury could properly have based its verdict, together with all reasonable inferences therefrom — such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Waller, 498 Pa. 33, 42, 444 A.2d 653, 658 (1982). As always, the evidence is to be regarded in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Plusquellic, 303 Pa.Superior Ct. 1, 4, 449 A.2d 47, 49 (1982).

Applying this standard of review to the facts of the instant controversy, the evidence adduced by the Commonwealth at trial established beyond a reasonable doubt that the white powder in question is a Schedule II controlled substance within the meaning of Section 104(2) of the Act.

In so ruling, we necessarily dismiss as untenable the interpretation accorded to the language of Section 104(2) by appellant, the nub of which is that the Act renders illegal only those varieties of cocaine which are derived naturally from the leaves of the coca plant. Our holding does not rest upon decisional precedent since, to our knowledge, none exists which proves dispositive of the matter at hand. Rather, we turn for guidance to the mandates of the Pennsylvania Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., which provides that “[w]ords and phrases shall be construed ... according to their common and approved usage.” Id. at 1903(a). See also Wajert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980); and Kury v. Commonwealth State Ethics Commission, 62 Pa.Cmwlth. 174, 435 A.2d 940 (1981). Also instructive is that canon of statutory construction which requires a reviewing court to assume that the legislature did not intend its enactments to contain mere surplusage. Turner v. May Corporation, 285 Pa.Superior Ct. 241, 427 A.2d 203 (1981). Instead, a court construing the language of a statute is obligated to presume that the legislature wished to confer effect to its every word. 1 Pa.C.S.A. § 1921(a). See also Crusco v. Insurance Company of North America, 292 Pa.Superior Ct. 293, 437 A.2d 52 (1981); and Southeastern Pennsylvania Transportation Authority v. Weiner, 56 Pa.Cmwlth. 104, 426 A.2d 191 (1981). Our adoption of appellant’s construction of Section 104(2) would necessarily entail the concurrent jettisoning of a paragraph from the Act’s operative language which, to our minds, proves dis-positive of the issue at hand. Consequently, we reject appellant’s construction of the Act.

2.

Appellant next avers that the Commonwealth failed to adduce evidence sufficient to sustain his conviction for possession with intent to deliver and delivery of LSD. Maintaining that the Commonwealth’s testing procedures were defective in failing to unequivocally identify the pink tablets sold by appellant to Agent Gahagan as LSD, he asserts that his conviction should be vacated. We find no merit to this claim and affirm the conviction.

Viewing the evidence, as we must, in the light most favorable to the Commonwealth as verdict winner below, Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981); Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545, 546 (1975), we conclude that the Commonwealth proved beyond a reasonable doubt that the pink tablets in question were LSD.

On direct examination the Commonwealth’s expert, Scott Ermlick, testified that he had performed two separate tests on the suspected LSD, a color chromatography test and a thin layer chromatography (TLC) test. He explained the color chromatography test as follows:

Again, I used the color test to try and determine what was contained, or a broad classification. That test indicated to me that this was probably lysergic acid, commonly referred to as LSD. From that, I proceeded to use thin layer chromatography.

He then explained the TLC test:

Thin layer chromatography is a system of separation of compounds. What you have is a glass plate that has an absorbent compound on it; in this case it was silica gel. An extract is made of the tablets, and it is placed dotted on the bottom of the plate. An extract of a known sample is made and also dotted alongside of it. These are placed into different small chambers that have various ratios of solvents in them, and what will happen is, once these plates are placed in the tank, the solvents, the liquid at the bottom, will migrate up the plate, and depending on the weight and the polarity — the weight, of the unknown and the polarity of the solvents, these unknowns will settle out at different heights, and the plates are taken out, dried, examined under ultraviolet light and sprayed with a visualization spray, and by measuring them, you can identify a drug.

Finally, Mr. Ermlick stated his conclusion that the substance tested was LSD.

On cross-examination Mr. Ermlick stated that the color chromatography test is a “presumptive test” in that it only indicates the possible presence of a substance. He also stated that the TLC test is not a specific test for LSD. On re-direct examination Mr. Ermlick restated his direct testimony to the effect that the TLC test involves comparing a questioned substance, i.e., the pills appellant had sold to the undercover agent, with a known substance, ie., LSD.

Appellant’s expert, Dr. Gordon R. Johnston, testified that the TLC test will only “give [the chemist] a good lead as to what [the substance] might be.” In his view, with positive results of a TLC test, an infra-red analysis should be done. Dr. Johnston further stated that while he had never performed a TLC test on LSD, in his view in “three out of four times it may not be correct.” Then, however, he stated that when the TLC test is performed with a control sample, it is “rather accurate.”

Given the particular facts 1.) that Mr. Ermlick stated that he had used a control sample of LSD in the TLG test and found that the substance suspected of being LSD matched the sample and 2.) that appellant’s own expert, Dr. Johnston, conceded that when the TLC test is performed with a control sample, that test is “rather accurate,” the evidence is sufficient to support the challenged conviction.

3.

Additionally, appellant argues that he is entitled to a dismissal of the charges lodged against him in Information Number 162 for the reasons that (a) the District Attorney did not sign the information personally; and (b) the individual who in fact signed the information was not authorized to act in the District Attorney’s stead in the manner prescribed by the Judicial Code. It is now settled that the failure of the District Attorney to sign a criminal information, in violation of Pa.R.Crim.P. 225(b), which requires such signature in order to guarantee the authenticity and reliability of the information, renders the information merely voidable since this defect is susceptible of prompt cure by amendment if the matter is raised by the defendant in a pre-trial motion to quash filed pursuant to Pa.R.Crim.P. 306. Commonwealth v. Veneri and Thomas, 306 Pa.Superior Ct. 396, 452 A.2d 784 (1982). Insofar as this defect is capable of meaningful remedy only during the pre-trial phase of a criminal prosecution, we ruled in Veneri and Thomas that a defendant’s failure to challenge the propriety of a signature appended to an information through the filing of a pre-trial motion to quash, results in the waiver of that claim for purposes of appellate review. Appellant in the case at bar first challenged the signature in his appeal to this Court. Consistent with our disposition in Veneri and Thomas, we view appellant’s claim as untimely and thus refuse to entertain its merits.

4.

Appellant’s fourth allegation of error, namely, that the lower court erred in refusing to dismiss Informations Number 32 and Number 33 due to an alleged missing link in the chain of custody, is similarly incapable of resolution on appeal. In light of the decision rendered by our Supreme Court in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), we may address only those issues which have been propounded with particularity in post-verdict motions. Inasmuch as this matter was not raised by appellant in his motions in arrest of judgment and for a new trial, we regard it as waived.

5.

Appellant maintains that the lower court erred in instructing the jury as to the disputed issues in the case, in particular the issues presented in the complex “isomer defense” theory which he advanced at trial. He directs our attention to the admittedly articulate instructions with which District Judge Robert W. Warren charged the jury in United States v. Orzechowski, supra. See 547 F.2d at 982-83, ns. 3 & 4. Appellant asserts that when compared with the Orzechowski charge^ the instructions given by the lower court in the instant case did not sufficiently apprise the jury of its obligation to acquit him of the cocaine offenses unless it concluded that the Commonwealth proved beyond a reasonable doubt that the substance in question was a derivative of coca leaves, or, in the alternative, was chemically equivalent or identical to a derivative of coca leaves. Moreover, he urges that since his Proposed Instruction No. 8, in which he advanced his chemical isomer defense theory, embodied a concise statement of the issues to be resolved by the jury, the lower court erred in refusing his requested instruction.

It is clear that a trial judge may properly refuse to read points for charge submitted by defense counsel which do not reflect a proper articulation of the law of our Commonwealth. Commonwealth v. Strong, 484 Pa. 303, 399 A.2d 88 (1979); and Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978). Inasmuch as we have rejected in its entirety appellant’s theory that the Act only prohibits those isomers of cocaine which are the natural product of the coca leaf and their chemical equivalents, we hold that the trial court properly refused appellant’s proposed instruction since it constituted an erroneous statement of the law.

6.

Appellant also cites as error the failure of the lower court to advise the jury that it should regard with heightened scrutiny the testimony of the Commonwealth’s informant, Dale W. Kenst, Jr., who purchased cocaine from appellant on behalf of undercover agent Gahagan on October 26, 1979. Concurrently, appellant charges that trial counsel was ineffective in not requesting this so-called “corrupt source” charge, and in not objecting to its exclusion from the court’s instructions. We have held that a trial court may properly refuse to grant a defendant’s point for charge, which posits that police officers and informants have an interest in the outcome of the case, where the court provides a general instruction that the jury must consider in its deliberations the potential bias or interest with which any witness may have testified. Commonwealth v. Vickers, 260 Pa.Superior Ct. 469, 394 A.2d 1022 (1978). With respect to the credibility to be accorded the testimony of witnesses appearing at trial, the lower court offered this guidance:

You, members of the jury, must determine what witnesses you will believe in order to determine what facts you find to be true, and we speak of that as passing upon the credibility of the witnesses, determining what credit their testimony is entitled to. In determining that, you take into consideration the means of knowledge of the matters to which they have testified, their appearance and their manner upon the stand when testifying, any interest that the witnesses may have in the outcome of the case, and considering all of these matters and using your own good judgment and experience, you will determine what witnesses you will believe and, therefore, what facts you find to be true.

Since this general instruction adequately covered the matter of witness credibility, the court did not err in providing a more explicit “corrupt source” charge.

In measuring the adequacy of an attorney’s representation of his client, we are constrained to return to the test enunciated by our Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In that case, the Court ruled that inquiry ceases and counsel’s stewardship is deemed constitutionally effective “once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Id. 427 Pa. at 604-05, 235 A.2d at 352-53 (Emphasis in original). Since Maroney, however, it has become settled law that counsel will not be deemed ineffective for his failure to assert a baseless claim, since under no circumstances can it be said that such an avenue would offer a significantly enhanced prospect for success than the route actually chosen. Commonwealth v. Hubbard, supra, 472 Pa. at 278, 372 A.2d at 694-95. Having previously concluded that the “corrupt source” charge was not mandated in the instant case, we are now unable to regard trial counsel as ineffective for his failure to request such an instruction or to object to its absence from the charge as given. Consequently, we perceive no merit in appellant’s argument.

7.

We find no merit in appellant’s assertion that the lower court failed to charge the jury, in conjunction with its instructions concerning the crime of possession with intent to deliver a controlled substance, on the lesser included offense of possession of a controlled substance. The most casual inspection of the notes of testimony discloses that the trial judge took considerable care in guiding the jury with explicit instructions concerning the offense of possession of a controlled substance. That counsel declined to advance this argument at trial or in post-verdict motions is commendable in view of its frivolity. We reiterate our oft-stated position that trial counsel will not be labelled as ineffective for his or her failure to pursue an untenable claim for relief. Commonwealth v. Hubbard, supra.

8, 9 and 10.

Appellant asserts in his next three (3) arguments that the lower court erred in refusing several of his points for charge. The court was unwilling to read Point No. 4, which referred to the Commonwealth’s burden of proving appellant guilty beyond a reasonable doubt; Point No. 10, which discussed the credibility to be accorded to the testimony of witnesses employed by the Commonwealth; and Point No. 13, which emphasized the jury’s duty to base its decision in the case solely on the evidence presented by both parties at trial. The court’s general charge adequately embraced those legal principles advanced by the submitted points and thus the trial court correctly dismissed the points as superfluous. Commonwealth v. Strong, supra; Commonwealth v. Johnston, 258 Pa.Superior Ct. 429, 392 A.2d 869 (1978). We have carefully reviewed appellant’s argument that the trial court erred in refusing his points for charge on reasonable doubt, credibility of witnesses, and evidence to be considered by the jury, and find it to be without merit.

11.

Appellant poses the additional challenge to the court’s charge that it failed to convey to the jury its duty to convict appellant of conspiracy only if it was convinced beyond a reasonable doubt that the object of the conspiracy was the delivery of a form of cocaine prohibited by statute. We reject this assertion. Viewing in its entirety that portion of the court’s instructions which set forth the elements of the crime of conspiracy, we believe that the charge sufficiently impressed upon the jury the fact that a conspiracy conviction must rest on proof beyond a reasonable doubt that the white powder delivered by George Gordon to appellant for purposes of resale was in fact a controlled substance. Our decision is grounded upon the fact that the court discussed the delivery of cocaine as the criminal objective to have been furthered by the conspiracy, and emphasized that if all of the elements of the conspiracy offense were not proven beyond a reasonable doubt, the jury had the duty to acquit appellant of the conspiracy charge. We see no need to impose any greater burden on the trial court with respect to its charge in this matter.

12.

Appellant alleges also that his trial counsel was ineffective in not opposing consolidation of the six separate informations on which he was tried. Appellant argues that he was substantially prejudiced by the consolidation in that it encouraged the jury to infer a criminal disposition from the sheer weight of the number of offenses with which he was charged, and to cumulate the evidence of the various offenses to convict him when, had each offense been tried separately, he might have been acquitted.

Traditionally, the consolidation or severance of separate indictments or informations has been viewed as a matter of discretion for the trial judge, whose decision will not be reversed in the absence of a manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975); and Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). The justification often advanced for the consolidation of separate indictments or informations is the judicial economy which results from a single trial. Weighing against consolidation, however, is the possibility that irrelevant and prejudicial evidence will influence the jury in its deliberations on each particular offense. Consequently, evidence of a distinct crime is generally held inadmissible against an accused who is being tried for another crime since the perpetration of one crime is not proof of the commission of the other. Commonwealth v. Morris, supra. Nevertheless, this general principle admits of an exception in cases where evidence of another crime is to be introduced in order to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes which are so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial under circumstances where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Commonwealth v. Morris, supra; Commonwealth v. Lasch, supra; Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonweath v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). Regardless of its relevancy, however, evidence of other crimes will not be admitted if its probative value is eclipsed by its tendency to prejudice the jury.

We agree with appellant’s position that the various illicit drug transactions he completed with Dale Kenst and Agent Gahagan between October 26, 1979 and December 21, 1979 do not share with one another such a high correlation in details that they may fairly be said to reflect a distinctive modus operandi as the Supreme Court defined that term in Morris. Nevertheless, we reject appellant’s claim that the trial court erroneously permitted consolidation of the informations, and that trial counsel was ineffective in not opposing the consolidation. Our decision rests upon three independent grounds. First, it is clear that the evidence of the offenses in each of the informations would be admissible in a separate trial of the others because they constitute a continuous series of transactions relevant to the question of the criminal motive and intent with which appellant possessed and sold the controlled substances. Second, the evidence as to the crimes charged in each information was succinct and uncomplicated and was, therefore, capable of separation by the jury so as to eliminate any risk of confusion. Finally, we perceive no prejudice inuring to appellant as a result of the consolidation. His only viable defense to the charges advanced in each information, and that which was in fact presented at trial, was the alleged inability of the Commonwealth to identify the confiscated drugs as controlled substances. Appellant fails to specify the additional defense strategies which were forestalled by the consolidation and we believe that none actually exist. The granting of a severance in the case at bar would only have resulted in a waste of judicial resources since each separate trial of the six different informations would also have focused on the chemical identity of the substances in question.

13.

Appellant next argues that trial counsel was ineffective in not moving to suppress the cocaine seized from appellant’s jacket which itself was retrieved by police officers after appellant discarded it in his unsuccessful attempt to elude arrest. In light of our decisions rendered in previous cases, there is no question but that abandoned property may be obtained by police and employed by the prosecution for evidentiary purposes, provided that the abandonment was not induced by illegal police action. Commonwealth v. Williams, 269 Pa.Superior Ct. 544, 410 A.2d 835 (1979); Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). As we stated in Commonwealth v. Williams, supra:

[t]he issue is not abandonment in the strict property-right sense, but whether appellant voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it. Id., 369 Pa.Superior Ct. at 547, 410 A.2d at 836 [citations omitted].

In the instant case, there was no unlawful or coercive police action. Appellant, at the time he relinquished possession of the jacket containing the cocaine, was fleeing from an arrest fully supported by probable cause since the arresting officer had just completed the purchase of a controlled substance from appellant. Having abandoned the jacket and all substances contained within its pockets, appellant no longer enjoyed an expectation of privacy with respect to the articles and thus cannot now complain that they were seized and introduced as evidence at trial. Insofar as a suppression court would be fully justified in denying a motion to suppress the cocaine discovered in appellant’s jacket, we are unable to regard trial counsel as ineffective for his failure to file such a motion in pursuit of what would prove a meritless claim for relief.

14.

Appellant also avers that trial counsel was ineffective in his cross-examination of two of the Commonwealth’s witnesses. Specifically, he maintains that counsel should have more vigorously explored the subject of the payments or promises made to Kenst by Agent Gahagan or other law enforcement officials for his services as a police informant. We reject this contention for two reasons.

First, our review of the record discloses that appellant’s counsel elicited from Kenst and Gahagan on cross-examination the fact that Kenst had drug-related charges pending against him at the time of trial, that Kenst himself was a user of drugs, and that Kenst was paid to testify against appellant. Moreover, responding to a question asked by the prosecutor on direct examination, Kenst stated that he was not testifying pursuant to an agreement made with the Commonwealth concerning the disposition of the charges then pending against him. In short, virtually all of the matters which appellant asserts his counsel failed to pursue in his questioning of Kenst and Gahagan, with the exception of the specific amount paid to Kenst and the manner of the payment, were in fact brought to the jury’s attention by the defense and prosecution. Second, we cannot conclude that trial counsel’s stewardship was constitutionally ineffective as a result of his decision to forego an investigation into the specific details surrounding the payments made to Kenst by the Commonwealth. Although this information would be relevant to the question of whether Kenst’s testimony was grounded upon some bias or improper motive, we view counsel’s failure to discuss the matter as a strategy decision. Clearly, the defense presented by counsel at trial focused almost exclusively upon the chemical identity of the substances seized from appellant. Having previously raised the issue of Kenst’s credibility before the jury, counsel obviously believed there was no need to proceed further with a line of questioning which could not possibly have fortified appellant’s defense and which could only serve to divert the jury’s attention from what counsel perceived as the central issue of the case. Thus, employing a hindsight evaluation of the record, we conclude that counsel’s conduct with respect to his examination of Dale Kenst and Agent Gahagan enjoyed some reasonable basis designed to promote appellant’s interests. Commonwealth ex rel. Washington v. Maroney, supra. Consequently, we reject appellant’s claim that he was denied his right to the effective assistance of counsel.

15.

Finally, appellant maintains that the trial court abused its discretion in denying appellant’s motion for continuance which was filed on May 1, 1980, four days prior to the scheduled date of the trial’s commencement. The primary reason advanced in support of the motion was counsel’s inability to obtain a treatise entitled “Cocaine: Legal and Technical Defenses in Cocaine Prosecutions.” Counsel maintained that the book was necessary in his preparation for trial since he had never before acted as defense counsel in a case involving cocaine. Well entrenched is the principle that “an appellate court will not find an abuse of discretion if the denial of the continuance did not prejudice appellant.” Commonwealth v. Waters, 276 Pa.Superior Ct. 584, 591, 419 A.2d 612, 615 (1980). See also Commonwealth v. Eackles, 286 Pa.Superior Ct. 146, 428 A.2d 614 (1981). Trial counsel enjoyed nearly four months time in which to prepare appellant’s defense based upon applicable case law. Moreover, the trial court previously agreed to continue the case upon appellant’s motion filed on March 21, 1980. The court did not abuse its discretion in refusing to continue the case for a second time merely because trial counsel could not locate a particular treatise. In addition, appellant is unable to specify what action counsel failed to take as a consequence of the court’s denial of the requested continuance. Our review of trial counsel’s management of the case leads us to conclude that appellant was in no way prejudiced by the absence of the treatise from his defense arsenal. To the contrary, we regard counsel’s vigorous examination of both defense and Commonwealth chemists as falling entirely within the bounds of what our courts have come to characterize as constitutionally effective stewardship. Indeed, we agree with appellant that Judge Wisdom’s comments, concerning the presentation of the “cocaine isomer defense” in a federal prosecution, enjoy particular relevance to the instant controversy:

There was much throwing about of brains. Defense counsel exhibited models of the molecular structure of cocaine isomers and skillfully extracted from his expert and the government expert as much or more knowledge of the cocaine isomers than a jury could absorb. United States v. Bockius, supra, 564 F.2d at 1194.

Discerning no merit in appellant’s assignment of error, we affirm.

Judgments of sentence affirmed.

SPAETH, J., files a concurring opinion.

SPAETH, Judge,

concurring:

The majority relies on Commonwealth v. Vickers, 260 Pa.Super. 469, 394 A.2d 1022 (1978), for the proposition that a general charge to the effect that in assessing a witness’s credibility, the jury should consider any interest the witness may have in the outcome of a case, is always an adequate substitute for a more specific charge to the effect that a government informant may have penal and pecuniary interests in testifying favorably to the Commonwealth. Maj. op. at 433-434. On that basis, the majority concludes that a request by appellant’s trial counsel for the more specific charge would have been baseless. Maj. op. at 434-435. I am not persuaded that such a request would have been baseless.

First, I should not derive from Vickers the broad proposition that a general charge is always an adequate substitute for a specific charge that a government informant may have penal and pecuniary interests in testifying favorably to the Commonwealth: that we held a general charge adequate in the circumstances presented in Vickers does not mean that it will be adequate in all conceivable circumstances. In addition, even if a specific charge were never mandatory, it would not follow that a request for such a charge would be baseless: such a charge is at least permissible. Commonwealth v. Carey, 293 Pa.Super. 359, 372-374, 439 A.2d 151, 158-59 (1981).

I nevertheless believe that here trial counsel may have had a reasonable basis for failing to request a specific charge. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). First, Charles A. Gahagan of the Pennsylvania Drug Control Bureau admitted on cross-examination that the informant, Dale W. Kenst, Jr., had been paid for his services in the past. N.T. 33. Second, Kenst acknowledged that he had recently been caught by the police at a keg party with drug paraphernalia on his person, and that he was a marijuana smoker and criminal charges relating to his drug use “ha[d]n’t come down yet ---- [; that he didn’t] know what [was] going to happen yet.” N.T. 24-26. And finally, Gahagan not only corroborated but expanded upon Kenst’s story in considerable detail. N.T. 22-24; 35-37. Appellant’s trial counsel thus may well have concluded that the jury was already aware of Kenst’s penal and pecuniary interests, and that even if it wasn’t, nothing would be gained from requesting a charge specifically referring to those interests, for such a charge couldn’t undermine Gahagan’s testimony.

I therefore concur in the majority’s conclusion that appellant’s trial counsel was not ineffective.

      . Act of April 14, 1972, P.L. 233; 35 P.S. §§ 780-101 to 780-144.

      . Id. at Section 13, as amended 35 P.S. § 780-113(a)(30) (1978).

      . Id.

      . The Crimes Code, Act of December 6, 1972, P.L. 1482 No. 334, Section 1; 18 Pa.C.S.A. § 903.

      . Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, Section 13, as amended, 35 P.S. § 780-113(a)(16) (1978).

      . Id.

      . 35 P.S. § 780-102(b) defines a "controlled substance” as any drug or substance included in Schedules I through V of the Act. Under Schedule II, 35 P.S. § 780-104(2), a controlled substance includes:
      (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but shall not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine (emphasis added).

      . Lysergic Acid Diethylamide.

      . One count of possession of cocaine; one count of possession with intent to deliver cocaine; and one count of possession of marijuana.

      . In previous cases, our courts have approved of informations which have been rubber-stamped with the name of the District Attorney and then initialed by one of his assistants in situations where the Commonwealth has adduced proof adequate to satisfy the reviewing court that the authority of the District Attorney’s designee has been filed with the county Clerk of Courts. See Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981); Commonwealth v. Dupree, 290 Pa.Superior Ct. 202, 434 A.2d 201 (1981); Commonwealth v. Levenson, 282 Pa.Superior Ct. 406, 422 A.2d 1355 (1980); and 42 Pa.C.S.A. § 8931. Instantly, however, the record is devoid of the requisite proof of the assistant District Attorney’s designation. Moreover, Information Number 162 was not . stamped with the facsimile of the District Attorney's signature unlike that discussed in Contakos, supra.

      . In his Opinion written for an en banc panel of the Court, Judge Cavanaugh offered this cogent rationale for the holding in Veneri and Thomas:

      Our reasoning is two-fold. First, it is clear that the absence of a signature does not prejudice the defendant in his preparation for trial. Secondly, it is unrealistic to assume that Pa.R.Crim.P. 255(b) intended the signature of the attorney for the Commonwealth to be the exclusive deliberative act which charged the defendant and that its absence annuls the validity or integrity of an otherwise untainted prosecution process. If the case has gone on to a point where the information has lost any meaning, i.e., where the Commonwealth has begun to support the charges by proof at trial or the defendant stands convicted, to even require a signature at that stage would be not only meaningless but a mere technical vanity. To upset a just verdict for want of a signature would be judicial slight of hand of totally unacceptable proportions, (at 788).

      . Information Number 32 charged appellant with one (1) count of delivery of cocaine, and one (1) count of possession of cocaine.

      . Information Number 33 charged appellant with one (1) count of delivery of I.SD, and one count of possession of cocaine.

      . As in the case sub judice, appellant in Orzechowski maintained on appeal that the Government failed to prove beyond a reasonable doubt that the substance which he sold to an undercover federal Drug Enforcement agent constituted that form of cocaine which is described as a "controlled substance” under Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. § 812(b)(2). Schedule 11(a)(4), contained within Section 812 of the Act, provides the following definition of a controlled substance in language identical to that employed in 35 Pa.C.S.A. § 780.104(2)(i)(4):
      Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances (Emphasis added).
      Orzechowski argued that the tests performed on the substance by government chemists did not establish that the powder was the naturally-occurring L-cocaine, and that, if the powder was D-cocaine, there was insufficient proof that L- and D-cocaine are chemically equivalent or identical.

      . Defendant’s Proposed Instruction No. 8

      The defendant’s theory of this case is as follows: The Controlled Substances Act applies only to cocaine of the kind which is derived from coca leaves, or which is chemically equivalent or identical to such natural cocaine. Cocaine has 8 separate and distinct isomers. Of these, only one, called L-cocaine, is derived from coca leaves. The other 7 cocaine isomers are not chemically equivalent or identical with L-cocaine because they have different physical and chemical properties and physiological effects. The Controlled Substances Act does not prohibit the distribution of those isomers of cocaine which are neither the natural product of the coca leaf nor the chemical equivalent of such natural product.
      If the evidence you have heard in support of the defendant’s theory creates in your mind a reasonable doubt that the tests performed in this case are specific for either a derivative of coca leaves or a substance which is chemically equivalent or identical to such a substance, then you must find the defendant not guilty.

      . We acknowledge that the positions we take today with respect to the issues raised by the “cocaine isomer defense" and, ultimately, the construction to be accorded to the language of 35 P.S. § 780.104(2)(i), are at odds with those adopted by certain federal circuit courts which, interpreting a similarly-phrased federal statute, 21 U.S.C. § 812(b)(2), have ruled that cocaine will constitute a Schedule II controlled substance only so long as it is capable of derivation from coca leaves. See e.g., United States v. Posey, 647 F.2d 1048, 1053 (10th Cir.1981); and United States v. Luschen, 614 F.2d 1164, 1169 n. 2 (8th Cir.1980). Since the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 appears to have served to some extent as a model for Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act of 1972, these federal decisions may offer some guidance to Commonwealth courts in the construction of our own statute. Nevertheless, we are in no way bound by these cases and are free to reject their holdings, particularly where, as here, the federal position remains ambiguous. Danson v. Casey, 33 Pa.Cmwlth. 614, 382 A.2d 1238 (1978), aff'd 484 Pa. 415, 399 A.2d 360 (1979); Abington Educational Association, 32 Pa.Cmwlth. 563, 379 A.2d 1371 (1977). See United States v. Ortiz, 610 F.2d 280, 281 n. 1 (5th Cir.1980); and United States v. Bockius, 564 F.2d 1193, 1194 n. 1 (5th Cir.1977).

      . As a result of this transaction, appellant was charged in Information Number 31 with two counts of delivery of cocaine, and two counts of possession of cocaine.

      . Trial counsel did not preserve this issue for our review by timely objecting to the court’s charge or by raising the matter in post-verdict motions. However, we do not regard it as waived since it now appears before us in the context of a claim of ineffectiveness of counsel, and is being asserted at the first opportunity by new counsel retained for purposes of this appeal. Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

      . See also Commonwealth v. Hernandez, 498 Pa. 405, 414, 446 A.2d 1268, 1273 (1982); Commonwealth v. Boyd, 300 Pa.Superior Ct. 539, 542, 446 A.2d 1290, 1292 (1982); Commonwealth v. Hook, 300 Pa.Superior Ct. 181, 185, 446 A.2d 290, 292 (1982).

      . Insofar as appellant’s counsel failed to interpose timely objection at trial concerning this question and did not raise the matter in post-verdict motions, we address the merits of this assignment of error solely for the purpose of resolving the claim of ineffectiveness of counsel.

      . Information No. 30, one count of possession of cocaine, and one count of possession with intent to deliver cocaine; No. 31, two counts of delivery of cocaine, and two counts of possession of cocaine; No. 32, one count of delivery of cocaine, and one count of possession of cocaine; No. 33, one count of delivery of LSD, and one count of possession of cocaine; No. 34, one count of delivery of cocaine, and one count of possession of cocaine; No. 162, one count of possession with intent to deliver cocaine, one count of possession of cocaine, and one count possession of marijuana.


author: HESTER, Judge:

text:
    483 A.2d 534
    DUQUESNE LIGHT COMPANY, v. U.S. INDUSTRIAL FABRICATORS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1984.
    Filed Oct. 5, 1984.

      Robert V. Campedel, Pittsburgh, for appellant.
    Amy S. Cunningham, Pittsburgh, for appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order of the lower court which struck appellant’s counterclaims on the ground that they involved actions separate from that included in appellee’s complaint. For the reasons which follow, we affirm.

Appellee instituted an action against appellant to recover the cost of electrical services which it provided to appellant. In its answer, appellant did not deny that electrical services were received; rather, it counterclaimed for rental value of telephone poles wrongfully placed on its property and for damages resulting from improper installation of said poles. In addition, appellant counterclaimed for loss of rent resulting from appellee’s failure to provide electrical services to appellant’s tenant.

Appellee filed preliminary objections and moved to strike appellant’s counterclaims as violations of Pa.R.C.P. 1031. This rule permits a defendant to raise by counterclaim any cause of action:

(1) which arises from the same transaction or occurrence or series of transactions or occurrences from which plaintiffs cause of actions arose or
(2) which arises from contract or is quasi-contractual.

The lower court agreed that appellant’s counterclaims did not fall within the purview of Rule 1031 and sustained appellee’s preliminary objections.

Appellant seeks our review of this decision, asserting that the lower court erred in striking its counterclaims. The foundation for appellant’s argument is that its counterclaim arose from the same series of transactions or occurrences from which appellee’s cause of action arose. In the alternative, appellant asserts that one of its counterclaims arose from a quasi-contractual relationship and was therefore an appropriate subject for a counterclaim.

Appellant initially argues that the lower court failed to liberally construe the language “series of transactions or occurrences” to include the factual foundations for both appellee’s claim and appellant’s counterclaims. It is appellant’s contention that all causes of action involved in this appeal arose as a result of the manner in which appellee provided service to appellant, and that these combinations of acts and events comprise a series of transactions which warrant joinder in a counterclaim.

Beyond doubt, the Rules of Civil Procedure are to be liberally construed and they do direct the courts to disregard defects of procedures which do not affect the substantive rights of the parties. See Pa.R.C.P. 126. However, liberal construction does not entail total disregard of those rules concerning pleading. The lower court found, and we agree, that there was no relationship between appellee’s cause of action and the causes of action set forth in appellant’s counterclaims. Appellee’s cause of action raised only the issue of non-payment for electrical service. Appellant’s causes of action were totally independent from the averments of appellee’s complaint. The rental value of appellant’s property, the cost of repairing a damaged sewer line, and lost rentals resulting from appellee’s refusal to provide electrical services cannot be considered transactions or occurrences flowing directly from appellee’s attempt to seek payment for services which were undeniably received.

Appellant argues in the alternative that its counterclaim as to the unauthorized placement of telephone poles on its property constituted a quasi-contract and thus falls within the ambit of Rule 1031(a)(2). This argument likewise must be dismissed.

In filing its counterclaims, appellant incorporated by reference a complaint in trespass which it had previously filed against appellee. Nowhere in its complaint did appellant alternatively plead an assumpsit cause of action, although Pa.R.C.P. 1020(d)(1) clearly permits such joinder. However, when joinder is sought, the causes of action in trespass and assumpsit must be embodied in separate counts, with each count clearly delineating its characterization as trespass or assumpsit. Failure to join a cause of action as required by the above-cited subdivision “shall be deemed a waiver of that cause of action as against all parties to the action.” Pa.R.C.P. 1020(d)(4). Thus, appellant, by failing to include in its complaint any counts in assumpsit, cannot now argue a counterclaim in assumpsit which is a derivative of the original pleading in trespass. We therefore dismiss appellant’s second and final contention.

Order affirmed.

      . An order sustaining preliminary objections and dismissing a counterclaim is appealable since it puts the defendant out of court as far as the counterclaim is concerned. Zivitz v. Centennial Road Properties, Inc., 328 Pa.Super. 79, 81 n. 1, 476 A.2d 462, 463 n. 1 (1984).

      . Since this case was appealed, the Supreme Court of Pennsylvania, by order dated December 16, 1983, amended Pa.R.C.P. 1031(a) to state:
      The defendant may set forth in the answer under the heading “Counterclaim” any cause of action heretofore asserted in assumpsit or trespass which he has against the plaintiff at the time of filing the answer.
      Effective July 1, 1984. This language removed the former constraints against joining in a counterclaim any trespass actions which a defendant may be able to assert against a plaintiff. Now, a defendant’s counterclaim in trespass need not be related to or arising from a transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose. Appellant seeks to apply the amended version of Rule 1031(a) to the instant action; such application would mandate reversal of the lower court order. This we refuse to do.
      Pa.R.C.P. 152 provides that whenever a rule is amended, “the new provisions shall be construed as effective only from the date when the amendment became effective.” This Court has declined to apply amended procedural rules to actions commenced prior to the effective date of the amendment. See Miller v. Hild, 303 Pa.Super. 332, 449 A.2d 714 (1982). As we observed in Trinity Area School District v. Dickson, 223 Pa.Super. 546, 551, 302 A.2d 481, 484 (1973), "procedural rights are determined by the law in force when the action is initiated.” See Giacco v. Pampena, 318 Pa.Super. 376, 380 n. 3, 465 A.2d 3, 5 n. 3 (1983). Consequently, this action is governed by Rule 1031(a) as it read on the day this suit was instituted.