author: POPOVICH, Judge:

text:
    457 A.2d 937
    CAMP CONSTRUCTION CORPORATION v. LUMBER PRODUCTS COMPANY and Georgia-Pacific Corporation. Appeal of GEORGIA-PACIFIC CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1982.
    Filed March 4, 1983.

      Patrick 0. McDonald, Philadelphia, for appellant.
    Stephen M. Howard, Philadelphia, for Camp, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   POPOVICH, Judge:

Appellee-plaintiff, Camp Construction Company, purchased plywood from defendant, Lumber Products Company, which had been manufactured by Georgia-Pacific Corporation, the other defendant in the subject litigation. According to appellee, the plywood was manufactured in a defective manner. A trial was held by a judge, sitting without a jury, and a verdict was entered in the amount of $17,418.00 against Georgia-Pacific Corporation. Verdicts also were entered in favor of Lumber Products Company on its cross-claim against Georgia-Pacific and on the cross-claim Georgia-Pacific had filed against Lumber Products Company. Exceptions were denied, and judgment was entered upon praecipe by one of the parties. This appeal by Georgia-Pacific Corporation followed. We affirm.

On appeal, appellant contends that the trial court erred (1) when it allowed two lay witnesses to give expert testimony; (2) when it allowed one of the witnesses, Robert Kish, to state his opinion that the warping and delamination of the plywood were not caused by improper installation; and (3) when it allowed into evidence testimony by Jack Blumenfeld, the owner of Camp Construction Company, the appellee, that none of the plywood had warped or delaminated prior to installation. Appellant also contends that the verdict entered in favor of the plaintiff was against the weight of the evidence. We must reject appellant’s contentions.

At the outset, we will consider appellant’s claims concerning the admissibility of certain testimony. Generally speaking, “ ‘questions concerned with 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 discretion exists.’ ” Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944 (1978) (quoting Westerman v. Stout, 232 Pa.Super. 195, 202, 335 A.2d 741, 745 (1975)).

For the most part, appellant’s arguments involve whether statements made at trial can be classified as either fact or opinion evidence and also the related question of whether the individuals were testifying as lay witnesses or as experts.

The testimony challenged initially by appellant consists of statements made by Blumenfeld and by Kish. Blumenfeld’s testimony reads as follows:

“BY MR. LAZAROFF [Attorney for Appellee]:
Q. Would you have? Would you have purchased lumber that would warp and delaminate for use in sub-flooring?
A. I try and buy the very best of everything that I am able to when I build a house, and even if I had been offered a bargain at a cheaper amount of dollars I would have turned it down anyhow. Our industry is hard enough as it is without also having the headache of a bad piece of wood.
MR. MC DONALD [Attorney for Appellant]: Objection, Your Honor, and move to strike.
THE COURT: Overruled.”

(Emphasis added.)

Similarly, the remark made by Kish which appellant contends is objectionable can be found in the following portion of the trial:

“Q. Was all this work necessary because of the defects you found?
A. Yes, sir.
MR. LAZAROFF: No further questions.
MR. MC DONALD: Objection and move to strike on the question of defects that were found.
THE COURT: Overruled. I understand this is a factual determination to be made by the Court.”
N.T. 98-99. (Emphasis added.)

To begin with, we have said the following:

“The decision whether testimony constitutes fact or opinion may be difficult, for ‘[t]here is no litmus test for fact versus opinion.’ Strausser v. Strunk, 222 Pa.Super. 537, 544, 295 A.2d 168, 173 (1972) (PACKEL, J., dissenting); see 7 Wigmore, Evidence, § 1919 (Chadbourn rev. 1978). Often testimony that might be classified as opinion is nevertheless admitted almost as a matter of course. Statements such as ‘it made an awful racket,’ ‘the weather was miserable’, ‘he looked drunk’, are in a sense all opinions, but a little attention to our every day way of speaking will show that they are more accurately classified as shorthand, or compendious, statements of fact, based on personal observation. (‘Well, when I say he looked drunk, what I mean is that he smelled of whiskey, his clothes were a mess, and he was swaying back and forth.’) In such cases the experienced trial judge will admit the statement. To instruct the witness that he must ‘tell us only the facts, not your opinions,’ may confuse or intimidate the witness; the judge may therefore decide to let the witness express himself naturally, leaving it to counsel to question the witness further, if elaboration or clarification is thought desirable. See McCormick, Handbook on Evidence, § 11 (West ed. 1972); see also Wilson v. Penna. R. Co., 421 Pa. 419, 219 A.2d 666 (1966) (in close case trial judge’s discretion respected); Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960) (testimony that automobile ‘increased’ speed was fact not opinion).”
Lewis v. Mellor, 259 Pa.Super. at 517-518, 393 A.2d at 946 (1978).

Also, the distinctions between the admission of lay or expert witness testimony has been set forth in the following manner:

“[A] lay witness ... would not be competent to express an opinion unless it were both rationally based on his own perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue. Lewis v. Mellor, 259 Pa.Superior Ct. 509, 393 A.2d 941 (1978). [A]n expert witness ... would not be competent to express an opinion unless it pertained to a subject ‘so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman,’ Ragan v. Steen, 229 Pa.Superior Ct. 515, 538, 331 A.2d 724, 736 (1974) (concurring opinion), and it appeared that the [witness] had ‘sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in the search for truth.’ Id. See Kravinsky v. Glover, 263 Pa.Superior Ct. 8, 396 A.2d 1349 (1979) (no error in qualifying witness as expert in psychology with special focus on driving phobia similar to plaintiff’s); Taylor v. Spencer Hospital, 222 Pa.Superior Ct. 17, 292 A.2d 449 (1972) (error not to allow nurse to testify about standards for restraints where she had experience).”
Commonwealth ex rel. M.B. v. L.D.B., 295 Pa.Super. 1, 10-11, 440 A.2d 1192, 1197 (1982).

Against this framework, appellant’s initial contentions must be examined. First, that

“the [c]ourt [b]elow improperly allowed Jack Blumenfeld, the owner of plaintiff corporation, and Robert Kish to give what was in effect expert opinion testimony, even though plaintiff’s Answers to Interrogatories indicated that plaintiff did not have an expert witness and would not introduce expert testimony. Second, that if the testimony of Jack Blumenfeld and Robert Kish was not expert testimony, it was nevertheless opinion testimony, and that there was no basis for allowing into evidence opinion testimony by lay witnesses going to the ultimate issue to be decided by the trier of fact.” Brief for Appellant at 5.

With respect to these contentions, the trial court correctly stated the following:

“it should be noted that in numerous places they were listed as ‘fact witnesses’, eye witnesses’ off [sic] witnesses with ‘knowledge’ of the incident. While the (Amended) Complaint in Assumpsit does not contain the phrase ‘breach of warranty’, such a theory is implicit once an Assumpsit Complaint alleges a ‘defect’ in purchased goods. Further, a positive response was given by plaintiff to Georgia-Pacific Corporation’s interrogatory as to whether (there was) ‘... any breach of ... warranty.’ It is axiomatic that warped and/or delaminated plywood is not ‘merchantable’, is not ‘fit for a general purpose’, and is certainly not ‘fit for its particular purpose’. It is further axiomatic that, ‘expert’ or not, Jack Blumenfeld, who was a builder for 30 years (N.T. p. 6), who was knowledgable [sic] in all phases of construction (N.T. p. 7), who was a carpenter who ... handled lumber installing (N.T. p. 8), etc., could properly testify because he personally observed the plywood in this case to be warped and delaminated.
The same reasoning applies to the testimony of Robert Kish, a highly experienced carpenter (N.T. p. 90). Kish testified that even though the plywood was properly installed (N.T. p. 97), it was warped and delaminated according to his personal inspection.”

Trial Court Opinion at 1-2. (Emphasis added.)

From the trial court’s opinion, it is clear that the trial court believed Blumenfeld’s and Kish’s testimony because their “testimony was based on [their] personal observation^].” Lewis v. Mellor, 259 Pa.Super. at 524, 393 A.2d at 949. Although the court highlighted Blumenfeld’s experience (i.e., “who was a builder for 30 years .. knowledgable [sic] in all phases of construction”, etc.) and Kish’s qualifications (i.e., “a highly experienced carpenter”), the thrust of the court’s decision to admit their testimony was because of their personal observations.

We note also that as witnesses, Blumenfeld and Kish could express their opinion about the “unfitness” of the plywood, which was not a subject beyond the “ken of the average layman.” Commonwealth ex rel. M.B. v. L.D.B., 295 Pa.Super. at 10-11, 440 A.2d at 1197. Even the trial court stated, “[w]e are not talking about a highly sophisticated piece of machinery; we are talking about a 4 by 8 piece of plywood.” (N.T. 114)

Alternatively, appellant contends that even if the testimony was not expert testimony, the comments made were unnecessary and should have been excluded. Even, however, if the responses were superfluous, we are not convinced that reversible error occurred.

Our Court has rejected “any rule that requires reversal simply because the opinion was unnecessary ... for it assumes the existence of reversal prejudice in every case.” Lewis v. Mellor, 259 Pa.Super. at 521, 393 A.2d at 948. In this case, because appellant has not demonstrated any prejudice and because our review of the record reveals none, a reversal is not warranted.

Additionally, reversible error has not occurred notwithstanding the possibility that the remarks challenged might have pertained to the ultimate issue to be decided by the trier of fact, the judge in this case. Even the court stated that the existence of defects was “a factual determination to be made by the Court.” (N.T. 98-99) Moreover, we have said that “the mere fact that the opinion concerns an ultimate issue is insufficient.” Lewis v. Mellor, 259 Pa.Super. at 524, 393 A.2d at 949.

In the instant case, the trier of fact accepted the testimony of Blumenfeld and Kish, witnesses for the plaintiff-appellee, “[djespite some expert testimony introduced on behalf of Georgia-Pacific Corporation”, trial court opinion at 2-3. Since this determination was within the realm of the finder of fact, this Court will not disturb the trial court’s resolution of the issue. See Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). See also Commonwealth v. Jennings, 285 Pa.Super. 295, 301 n. 6, 427 A.2d 231, 233-4 n. 6 (1981).

Similarly, Kish’s testimony established that the supports, “the trusses [,] were all in accordance to specifications.” (N.T. 97) That testimony further showed that Kish had physically examined the sites of the complaints. (N.T. 97) When asked what he had found during his examination, Kish responded, “Plywood delamination”. (N.T. 97)

From the above testimony, we are not prepared to adopt appellant’s argument that Kish offered an expert opinion when he stated that the supports were installed “according to specifications.” (N.T. 97) Rather, a fair reading of the testimony shows that this “lay witness [was] speak[ing] from personal knowledge (the witness must describe what he saw, heard, felt, tasted, smelled).” Lewis v. Mellor, 259 Pa.Super. at 518, 393 A.2d at 946. Appellant contends that Kish’s observations were not based on personal observation because he admitted installing the plywood “[o]n occasion”. (N.T. 95) This remark, however, must be examined in the following context:

“BY MR. LAZAROFF [Appellee’s Counsel]:
Q. Mr. Kish, I hand you what has been marked as P-3 and ask you to tell us what that is?
A. It is a piece of five ply fir, texture 111.
MR. MC DONALD [Appellant’s Counsel]: I didn’t catch all of that.
THE WITNESS: Texture 111.
MR. LAZAROFF: Thank you.
BY MR. LAZAROFF:
Q. Now, you said the plywood you examined at the time on the job was delaminated?
A. Yes, sir.
Q. Using that exhibit in your hand can you explain to His Honor what exactly happened, what exactly you saw?
A. Well, you can clearly see that the plywood is five plies thick. Some of the top plies came off, some of the delamination was in the center plies, it was not on the top ply. You couldn’t see it visually, you felt that when you walked across it, it bubbled, much like a blister on paint.
Q. Did you walk across that?
A. Yes, sir.
Q. In your experience, if you knew plywood would— what did you say, crack—would delaminate, would you have used that and still put in floors?
MR. SURKIN [Attorney for Lumber Products]: Objection.
MR. MC DONALD: Objection.
THE COURT: Sustained.
BY MR. LAZAROFF:
Q. In yonr opinion, was it necessary to replace that plywood that was replaced?
A. Yes, sir.
MR. MC DONALD: Objection, Your Honor.
MR. SURKIN: Objection.
THE COURT: Overruled.
BY MR. LAZAROFF:
Q. Why?
A. We had complaints from customers, we had bubbles in kitchen floors, we had squeaks in bedroom floors, squeaks in the hallways when you walked across it.
Q. Did you go out and verify those complaints?
A. Yes, sir, I did.
Q. And what did you find when you verified those complaints, when you checked those complaints?
A. We had to pull the floor up where there were complaints and we found plywood that was delaminated.
Q. Now, did you also examine the support of the plywood, that is, the trusses?
A. Yes, sir.
Q. In your opinion, was that plywood properly supported?
A. Yes.
MR. MC DONALD: Objection.
THE COURT: Sustained.
MR. LAZAROFF: Your Honor, in this case here, really, he’s a fact witness.
THE COURT: I think there is a way to ask the questions, but I am not going to ask them for you.
BY MR. LAZAROFF:
Q. You observed the installation of that plywood?
A. On occasion.
Q. Now, how was that supported on the floors?”
(N.T. 93-95)

Thus, although the record shows that Kish examined the installation of the plywood “on occasion”, Kish’s testimony also reveals that he had verified the complaints by “pullfing] the floor up where there were complaints”, and also by examining the support of the plywood. (N.T. 95) On these facts, there is no doubt that Kish’s statements were based on personal observation.

Appellant next contends that the trial court erred when it allowed Blumenfeld to testify that none of the plywood had warped or delaminated prior to installation. According to appellant, this testimony was introduced improperly since “Blumenfeld had no firsthand knowledge of this matter, ...” and that he was simply stating his opinion that his carpenters would not install plywood which was warped. Brief for Appellant at 9. Again, the record shows that appellant’s argument does not afford it a basis for reversal.

The testimony elicited at trial shows that Blumenfeld was involved actively as a builder in each one of the jobs he had in connection with the laying of the floors. In fact, “he [was] on every job every day.” (N.T. 10) The flooring problem came to Blumenfeld’s attention because as his employees were sweeping our floors, “we were starting to get a rippling effect on account of the plywood____” (N.T. 12) As a result, in some instances, “we picked it [, the plywood], up ahead of covering over those sub-floors, but in other instances the sub-floors were already covered over with either a carpet or a tile, and we then had to go back in those, which were often occupied houses.” (N.T. 13) Blumenfeld testified further that he had seen the carpenters putting the floors down and that most of the sheets had warped. (N.T. 47) Blumenfeld explained that although the plywood was not examined at the time of delivery, a carpenter usually, at the time of installation, “picks up a piece of wood ... and hopes he can install it. Visually, as he picks it up he can see if it is or isn’t any good, and if it isn’t he simply casts it aside.” (N.T. 63) The witness added that he had no knowledge of any pieces of plywood received from Lumber Products which were discarded by the carpenters prior to their installation. (N.T. 65) Blumenfeld also stated that only “a short amount of time” elapsed from the time of delivery of the plywood until he first noticed problems with the plywood and that it was “a matter of weeks” from the time of installation until the time that the plywood problems were detected. (N.T. 65) In the context of this trial, Blumenfeld’s affirmative response to a question posed by defense counsel concerning whether the plywood “had looked all right” at the time of installation, (N.T. 65-66) although technically can be viewed as an opinion is “more accurately classified as shorthand, or compendious, statements of fact, based on personal observation.” Lewis v. Mellor, 259 Pa.Super. at 517, 393 A.2d at 946.

Appellant’s final argument is that the verdict of the court was against the weight of the evidence. The general rule is that a “new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice.” Jacob Kline Cooperage v. George W. Kistler, 286 Pa.Super. 84, 87, 428 A.2d 583, 585 (1981). We also have recognized that a new trial is not warranted “where the evidence is conflicting and the jury[,] could have decided either way.” Id.

As recited above, the evidence adduced at trial showed that the plywood was installed properly and that the plywood had not warped or delaminated prior to the time of installation. On the other hand, appellant’s expert testified that the trusses were not installed accurately and that the buckling which had occurred in the wood could be related directly to moisture absorption and improper installation. (N.T. 145-146). According to appellant, it’s own expert testimony showed “at least probable explanations for the warping and delamination of the plywood.” Brief for Appellant at 11. We must reject appellant’s contentions.

This Court has held that the weight to be accorded expert testimony is a function for the trier of fact. See Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 319 A.2d 914, 924 (1974). In the instant case, the trial court, the trier of fact, found in favor of the appellee “[djespite some expert testimony introduced on behalf of Georgia-Pacific Corporation”. Under these circumstances, we will not disturb the trial court’s resolution of the matter because the evidence supports the conclusion of the finder of fact.

Judgment affirmed.

      . We note that the existence of certain procedural irregularities does not affect the validity of the instant appeal. First of all, appellant styled his motion, "A Motion for a New Trial” improperly since such a motion has been abolished in non-jury assumpsit actions. See Pa.R. C.P. 1038(d) and 1048; Karpe v. Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1982). Even though the motion was captioned improperly; , however, the trial court had to treat the motion as exceptions. Id.

      Second, the captions appearing on both briefs indicate that the order appealed is from the order dismissing the exceptions. However, such an order is interlocutory and unappealable. Id., 290 Pa.Superior at 561, 434 A.2d at 1293. Notwithstanding this defect, the docket entries show that judgment was entered on June 23, 1982, after the appeal was taken. Thus, jurisdiction properly is with this Court.

      . In this connection this Court has said the following:
      “the concern of both § 402 [strict liability] and warranty law is with the fitness of a product, not the conduct of the producer as measured by due care.”

        Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 504, 434 A.2d 1253, 1257 (1981). (emphasis added).

      . In Lewis, supra, this Court adopted the federal rule approach in this area and rejected the ultimate issue rule. That rule, 704, states the following:
      “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Id. 259 Pa.Super. at 522, 393 A.2d at 948. (Emphasis added).

      . The case of Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976) is distinguishable. In Lenkiewicz, the appellant did not show that a defect existed at the time of sale which occurred four and one-half years prior to the accident, and appellant’s own expert had no idea what caused the wall to collapse; See also Concurring Opinion by Hoffman, joined by Spaeth, J. By contrast, appellee’s testimony rebutted the appellant’s testimony and further established that only a short amount of time elapsed from the time of sale of the product until the defect became noticeable. We have said that a plaintiff may prove the existence of a defect circumstantially by showing that the product malfunctioned. Id., 242 Pa.Superior at 91, 363 A.2d at 1175. (Cases omitted). In this case, the manufacturer of the plywood was held liable because the court discounted the credibility of its expert witness and accepted the version of appellee's testimony that the plywood was defective at the time of the sale, and that the defect caused appellee’s harm.


source: Caselaw Access Project

license: Public Domain

text:
    457 A.2d 944
    Ann Marie VORHAUER, a minor by Charles and Doris Vorhauer, her parents and natural guardians, Appellants, v. Leon M. MILLER and Marie A. Miller, his wife.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1982.
    Filed March 4, 1983.

      Gary Francis Divito, Philadelphia, for appellants.
    Gregory F. Mondjack, Philadelphia, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Bucks County denying plaintiffs-appellants’ Petition to Vacate Judgment of Non Pros. Appellants contend that the lower court’s failure to vacate the Judgment of Non Pros constituted an abuse of discretion. We disagree and, accordingly, affirm.

The appellants filed a two-count Complaint in Trespass on June 13, 1977 seeking judgment against the defendants-appellees in an amount in excess of $10,000.00 in each count. The Complaint alleged, inter alia, that:

“6. On or about June 22, 1975, at approxiamately [sic] 6:35 p.m., ... [two] dogs ... kept by the defendants, attacked the Minor Plaintiff [—Anne Marie Vorhauer—] who was seated upon her pony ‘Pumpkin’ and [was] lawfully upon [her] premises ..., causing the said pony to bolt, and drag the minor Plaintiff through a field. 7. As a result of the aforesaid attack, the Minor Plaintiff was thrown from her pony and dragged along the ground through a field, sustaining severe injuries.
10. As a result of the negligence of the defendants, the Minor Plaintiff suffered severe traumatic injury to her left eye, her head, and face; and to her arms, legs, and various other parts of her body, all of which are or may be permanent and continuing.”

On September 7, 1977, the appellees served a set of interrogatories on the appellants—Anne Marie Vorhauer’s consisted of 11 questions; Doris and Charles Vorhauer each received a duplicate list of 41 questions. However, because of appellants’ counsel’s failure to respond to the aforementioned interrogatories, the appellees, pursuant to Pa.R. Civ.P. 4006, secured an Order of Court, dated February 24, 1978, directing appellants to file written answers on or before March 27, 1978 or be subject to sanctions. In compliance therewith, appellants’ counsel filed answers on March 6, 1978. The scenario continues with counsel for the appellees serving Charles and Doris Vorhauer with a Notice of Oral Deposition on May 4, 1978. Thereafter, on August 15, 1978, appellants’ counsel reciprocated by having a similar notice served on the appellees, Leon and Marie Miller.

As a result of the depositions taken, appellees, on November 29, 1978, served a second set of interrogatories on Anne Marie Vorhauer and her parents, which consisted of 56 questions and requested that written answers be submitted “within twenty (20) days of their service[.]” As before, the appellees had to seek the imprimatur of a court Order, dated January 22, 1979, which “directed and ordered [appellants] to file written Answers to Interrogatories with [ ] ... defendants[-appellees] on or before Feb. 20, 1979, or be subject to ... sanctions[.]” On this occasion, appellants again did not comply with the time requirements, even though appellees’ counsel granted them a 7-day extension. When the appellants finally did respond on March 7, 1979, appellees were less than satisfied and characterized “the ... Answers to . ¡. [the] Interrogatories [as] so grossly inadequate and incomplete it [was] as if they had never been answered at all.” {See Appellees’ “Petition For Rule to Show Cause Why Appropriate Sanctions Should Not Be Imposed, ...,” Point 9) In an attempt to remedy the situation, appellees obtained a Rule To Show Cause why appropriate sanctions should not be imposed, including the possibility of a Judgment of Non Pros, or, in the alternative, why appellants should not be made to more specifically answer appellees interrogatories. The Rule was issued on March 28, 1979 and made returnable by April 16, 1979. Appellants did respond to the Rule To Show Cause; however, as with the two previous court Orders directing the filing of more specific answers or risk the imposition of sanctions, appellants’ “Answer To Defendants’ Motion For Sanctions” was not only filed after the due date, i.e., April 18, 1979, but constituted no more than an admission to all of appellees’ interrogatories save No. 9, which was denied and labelled as “oppressive and designed to cause Plaintiffs excessive and unnecessary annoyance.” In response to the aforesaid, appellees took action on June 6, 1979 by filing a Memorandum of Law seeking sanctions in the nature of a Judgment of Non Pros or, in the alternative, a more specific answer to their interrogatories. For the fourth time, the court entered an Order, dated August 3, 1979, directing appellants, in particular Anne Marie Vorhauer, “to file more specific answers to Interrogatories Nos. 19, 22, 23, 25, 26, 27, 31, 51, 52 within twenty (20) days from [the] date hereof or suffer Judgment of Non Pros.” Counsel for appellants does not deny having received the aforementioned Order.

When counsel for appellants failed to file more specific answers, counsel for the appellees, in accordance with the notice requirements of Pa.R.Civ.P. 236, filed a Praecipe with the Prothonotary of the Court of Common Pleas of Bucks County on August 24, 1979, and asked that he:

“Kindly enter a Judgment of Non Pros against Plaintiffs and in favor of defendants Leon M. Miller and Marie A. Miller, for Plaintiffs’ failure to file Answers to Defendants’ Interrogatories in accordance with the Judge’s Order dated August 3, 1979.
WEBER AND ABARBANEL
BY: /s/ Lawrence Pauker
Lawrence Pauker, Esquire
Attorney for Defendants
Attorney I.D. # 24652.”

On August 27, 1979, counsel for appellants received notice that a Judgment of Non Pros had been entered against his clients on August 24. On August 28, appellants’ counsel submitted a “Petition To Vacate Judgment [Of] Non Pros,” in which he alleged:

“4. Minor Plaintiff’s failure to comply with the Court’s Order was solely the result of her counsel’s failure to act upon the Order.
5. Counsel’s failure to comply with the Order may be reasonably explained. Counsel was out of the country from August 10, 1979 until August 20, 1979. Upon his return, counsel was advised by another client that settlement on the sale of a $495,000.00, fifty-two unit apartment complex was to take place on August 24, 1979, and that a mortgage and note would have to be prepared; the complete terms thereof would have to be worked out with the buyer’s attorney; and an existing second mortgage, in favor of a third party, would have to be satisfied. Regretably, [sic] the press of the matter, together with the correspondence and messages which had accumulated during counsel’s absence, drew counsel’s attention from the matter of preparing and filing the answers in accordance with the Court’s Order.
6. The proposed answers are annexed hereto, and cure Minor Plaintiff’s ‘default’.
8. The Minor Plaintiff has a good and just cause of action. This matter arises out of a Complaint in Trespass filed on behalf of the Minor Plaintiff seeking money damages for severe and permanent damage to her eyesight as a result of an attack by Defendants’ dogs, and other injuries.[]
10. If the petition is denied and the non pros allowed to stand, the Minor Plaintiff will be deprived of her day in Court, and will forever lose all hope of recompense for the serious injuries which she has sustained.”

After the submission of Memoranda of Law by counsel for both sides, the court issued an Order dated October 15, 1981 denying appellants’ Petition. See Pa.R.Civ.P. 4005 & 4019. This appeal followed. We affirm.

In order for the Vorhauers to prevail on their petition to open (“vacate”) the Judgment below, they had to establish the necessary criteria for the opening of a Judgment of Non Pros, which are that: 1) the petition must be timely filed; 2) the reason for the default must be reasonably explained or excused; and 3) the facts constituting grounds for the cause of action must be alleged. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Goldstein v. Graduate Hospital, 441 Pa. 179, 272 A.2d 472 (1971); Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966); St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Co., 239 Pa.Super. 492, 362 A.2d 1052 (1976). The only issue controverted below was whether the default was reasonably explained or excused.

Counsel for the appellants offers a three-fold explanation for his failure to act in a timely fashion in responding to appellees’ interrogatories. First, counsel was out of the country for ten out of the twenty days in which he had to file the more specific answers. Second, upon his return, he was required to negotiate and prepare a mortgage and related documents for the sale of a 52-unit apartment complex. Third, he was “distracted by the press of his accumulated correspondence.”

Counsel concedes, as he must, that mere inadvertence or the lack of diligence on the part of an attorney is not in and of itself the best reason for opening a judgment. Nonetheless, he urges that the facts peculiar to his case constitute a reasonable explanation for his delay. Moreover, he laments that “attorneys are humans, prone to error, whose frailities [sic] should not be visited upon their clients depriving them of their right to have their case tested by a trier of fact ----” (Appellants’ Brief at 6) Although we empathize with counsel, we do not attribute a talismanic quality to the importuning that clients should not be held accountable for their counsel’s (in)action. “To hold otherwise, as [appellants’ counsel] contend[s], would reduce the provisions for entering a [default judgment] to a nullity, since ... [counsel] could always avoid [it] by merely____” arguing justice would not be served by penalizing clients for their attor: ney’s conduct. New York Life Insurance Co. v. Sekula, 352 Pa. 495, 498, 43 A.2d 134, 136 (1945). We do not take our role as an appellate court lightly, and this is no more evident than in the instant type of case, for “[i]n no sort of case is closer attention to the facts required than in a case arising on petition to open judgment.” Provident Credit Corp. v. Young, 300 Pa.Super. 117, 119, 446 A.2d 257, 258 (1982).

Counsel for appellants would have us look at the fact that appellees obtained the Judgment of Non Pros one day after the 20-day time limit for the filing of the answers to the interrogatories came due. Viewed in isolation, such conduct could be interpreted, and rightly so, as the entry of a “snap judgment,” which the courts of this Commonwealth have consistently deplored. See, e.g., Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Mahler v. Emrick, 300 Pa.Super. 244, 446 A.2d 321 (1982) (citing cases). However, appellants’ argument does not withstand the light of scrutiny when the facts are viewed in concert.

To start with, counsel for appellants offers his own “inadvertence” as the “reasonable excuse” justifying the petition to open judgment. On this point, our Supreme Court has stated:

“It has been long a custom in Pennsylvania to grant relief from a judgment entered by default where the failure is due to a mistake or oversight of counsel and where application is promptly made and a reasonable excuse for the default offered. Fuel City Mfg. Co. v. Waynesburg Products Corp., 268 Pa. 441, 445, 112 A. 145; National Finance Corp. v. Bergdoll, 300 Pa. 540, 151 A. 12; Horning v. David, 137 Pa.Super. 252, 8 A.2d 729. Assuming, arguendo, that the court below had the power to relieve plaintiff from the default, and also assuming that the failure was chargeable to counsel alone, the fact remains that the relief sought was by way of grace and not of right. It follows that we may not reverse the court below unless there was a clear abuse of legal discretion.
The court below predicated its refusal to grant the relief on the grounds that the application was not made with reasonable promptness, that the rules have been in force for a considerable time, and that counsel had failed to heed the warning given in two decisions by courts of common pleas in Philadelphia County, This was a matter peculiarly for the court below and we find nothing in the record showing an abuse of legal discretion by that court.” (Emphasis added) Pinsky v. Master, 343 Pa. 451, 453, 23 A.2d 727, 728 (1942). Accord Texas and Block House Fish and Game Club v. Bonnell Run Hunting and Fishing Corp., 388 Pa. 198, 130 A.2d 508 (1957).

This Court, likewise, has adhered to such a rule and has remarked:

“that mere confusion, see Triolo v. Philadelphia Coca Cola Bottling Co., 440 Pa. 164, 270 A.2d 620 (1970), bald allegations of inadvertence of counsel, Goldstein v. Graduate Hosp., supra; Carrozza v. Girard Chevrolet Co., 200 Pa.Super. 502, 190 A.2d 577 (1963), mistake or inadvertence of counsel (without more), see Westinghouse Credit Corp. v. Wenzel, 223 Pa.Super. 87, 289 A.2d 759 (1972); Spilove v. Cross Transp., Inc., 223 Pa.Super. 143, 297 A.2d 155 (1972), or demands on the time of counsel, see Goldstein v. Graduate Hosp., supra; Walters v. Harleysville Mut. Cas. Co., 417 Pa. 438, 207 A.2d 852 (1965); Seltzer v. Ashton Hall Nursing & Convalescent Home, 221 Pa.Super. 127, 289 A.2d 207, allocatur refused, 221 Pa.Super. xliii (1972), are not patently reasonable excuses and that failure to open based upon these explanations is not an abuse of discretion.” (Emphasis in original) St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Co., supra, 239 Pa.Super. at 501-502, 362 A.2d at 1058.

Stated differently, “ ‘[w]hile it is true that a mistake or inadvertence of counsel will often justify the opening of a default judgment entered against a defendant [or a plaintiff], a reasonable excuse for the default must be of fered.’ ” (Citations omitted) (Emphasis added) Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. 265, 268-69, 430 A.2d 278, 279 (1981). “In connection therewith, we have held that although defendant’s [or plaintiff’s] counsel may be involved in other matters, the existence of these obligations provides no excuse for opening the judgment even though the client may be severely prejudiced. Walters v. Harleysville Mutual Cas. Co., 417 Pa. 438, 207 A.2d 852 (1965).” (Emphasis in original) Goldstein v. Graduate Hospital, supra, 441 Pa. at 182-183, 272 A.2d at 474. Accordingly, the inadvertence or mistake of counsel, without more, will not excuse appellants’ failure to answer interrogatories. Spilove v. Cross Transportation, Inc., 223 Pa.Super. 143, 297 A.2d 155 (1972); Westinghouse Credit Corp. v. Wenzel, 223 Pa.Super. 87, 289 A.2d 759 (1972); see also Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979) (failure to answer was based on a misunderstanding between counsel as distinguished from mere inadvertence or negligence, and, thus, lower court abused its discretion in refusing to open the judgment); King v. Fayette Aviation, 226 Pa.Super. 588, 323 A.2d 286 (1974) (burdens of litigation not reasonable excuse).

Instantly, from the time the Complaint in Trespass was filed in June of 1977, appellees’ counsel has had to resort, repeatedly, to the use of court orders to expedite the disposition of preliminary matters so as to move the case to trial. The last of these, the August 3, 1979 Order directing appellants to file more specific answers within 20 days thereof or suffer Judgment of Non Pros, was admittedly received by counsel for appellants on August 7, 1979. (Appellants’ Brief at 2) Thus, we are dealing with one who knew the implications of failing to act within the prescribed time. See Bethlehem Apparatus Co. v. H.N. Crowder, Jr., Co., 242 Pa.Super. 451, 364 A.2d 358 (1976); Telles v. Rose-Tex, Inc., 233 Pa.Super. 181, 335 A.2d 440 (1975). Appellants’ counsel, knowledgeable of the consequences that would flow from the failure to comply with such a directive, proceeded to leave the country from August 10 to August 20, 1979. However, even with 3 days remaining, counsel took no action to forestall the running of the 20-day period. Even given counsel’s contention that he was inundated with other legal matters that could not be cleared up in time, he refrained from requesting an extension from the court or opposing counsel. See St. Joe Paper Co. v. Marc Box Co., 260 Pa.Super. 515, 520-21, 394 A.2d 1045, 1048 (1978) (when counsel realized that their ‘misunderstanding’ would not be cleared up in time, they should have requested another extension to toll the running of the applicable time period and prevent the entry of a default judgment); King v. Fayette Aviation, supra (if counsel was so pressed for time it would have been a simple matter for him to have asked for another extension of time or have another attorney in his law firm prepare an answer). Rather, it was not until three days after the Judgment of Non Pros had been issued and five days after the 20-day time period had expired that counsel filed the requested answers to the interrogatories, along with the petition to open judgment. We find, based on the particular facts of this case, that appellants’ counsel did not satisfactorily explain his failure to file a timely answer to appellees’ interrogatories.

As so aptly stated by the lower court:

“In the instant case, the appellants’ counsel’s excuse amounts to little more than a hectic schedule. This is insufficient to ‘reasonably explain’ his failure to comply with our order. The appellants’ counsel gives no reason why he did not ask for an extension of the time period within which he was required to reply. Nor did he notify the defendant of his difficulties. See Boyles [v. Sullivan, 230 Pa.Super. 453, 326 A.2d 440 (1974)].
It is significant that this is not the only deadline missed by the appellant^]. As we have already indicated in our recitation of the facts, the history of this case is replete with delay caused by the failure of plaintiffs’ [appellants’] counsel to promptly respond to discovery requests. It is the responsibility of the plaintiffs to move the case forward. Defendants, as well as plaintiffs, are ‘entitled to have the controversy between them promptly adjudicated while witnesses are still available and memories are undimmed by long intervening years.’ Riley v. Boynton Coal Co., 305 Pa. 364, 157 A. 794 (1931).
In light of the history of delay in this case caused by the appellants and the nature of their excuse for failure to comply with our order, we conclude that they have not reasonably explained their failure to answer interrogatories as ordered by this court. It is for these reasons that the appellants’ petition to vacate the [Jjudgment of [N]on [P]ros was dismissed.” (Lower Court Opinion at 5-6)

We have reviewed the record and conclude that the facts of this case adequately support the ruling of the court below.

Order affirmed.

      . To be more specific, appellants admitted only Nos. 2 through 8 of appellees’ interrogatories, which dealt with matters concerning the pony "bolting” and the circumstances surrounding appellees’ dogs allegedly attacking and chasing the pony. The appellees sought, for example, more specificity to the interrogatories numbered: 4, 10-19, 22-26, 42, 51, 52 and 56. None of the aforementioned was answered to the appellees’ satisfaction, and the court agreed, as is evidenced by the numerous orders issued directing appellants to elaborate upon their answers.

      . It is to be noted that in the interim (April 18, 1979), appellants submitted interrogatories, 9 in number, to the appellees, which were answered in a timely fashion (April 24, 1979).

      . Rule 236 provides in relevant part:

        Rule 236. Notice by Prothonotary of Entry of Order, Decree or Judgment
      (a) The prothonotary shall immediately give written notice by ordinary mail of the entry of any order, decree or judgment;
      (1) When a judgment by confession is entered, to the defendant at the address stated in the certificate of residence filed by the plaintiff together with a copy of all documents filed with the prothonotary in support of the confession of judgment. The plaintiff shall provide the prothonotary with the required notice and documents for mailing and a properly stamped and addressed envelope; and
      (2) In all other cases, to each party who has appeared in the action or to the party’s attorney of record.
      (b) The prothonotary shall note in the docket the giving of the notice and, when a judgment by confession is entered, the mailing of the required notice and documents.
      (c) Failure to give the notice or to mail the required documents, or both, shall not affect the lien of the judgment.
      It is to be noted that Pa.R.Civ.P. 237.1, dealing with giving notice prior to entry of a default judgment, did not become effective until after the Judgment of Non Pros was issued in this case.

      . In a trespass action, a meritorious defense need not in all cases be shown to exist when the equities are otherwise clear. See Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Spilove v. Cross Transportation, 223 Pa.Super. 143, 297 A.2d 155 (1972).


author: PRICE, Judge:

text:
    457 A.2d 951
    Needom I. JONES, Appellant, v. Leona JONES.
    Superior Court of Pennsylvania.
    Submitted March 16, 1981.
    Filed March 11, 1983.

      S.R. DiFrancesco, Sr., Johnstown, for appellant.
    David J. Kaltenbaugh, Johnstown, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.

       This decision in this case was reached prior to the death of Judge Price.

   PRICE, Judge:

This appeal comes to us from an order by the Honorable Caram J. Abood dismissing appellant’s exceptions to the master’s denial of a divorce on the grounds of indignities. We affirm the lower court based on the master’s conclusion that appellant’s allegations are insufficient to establish the grounds of indignities.

The facts surrounding this appeal are as follows. The litigants, Needom I. Jones and Leona Jones, were married in Johnstown, Pennsylvania on August 6, 1977. No children were born of this marriage. The couple established their residence at Mrs. Jones’ home where her twenty-two year old son from a previous marriage, Reginald, resided with them. On April 29, 1979, Needom separated from Leona. On July 18, 1979, Mr. Jones filed a Complaint in Divorce alleging that he was the injured and innocent spouse and that Leona offered such indignities to his person as to render his condition intolerable and his life burdensome. In a bill of particulars filed subsequently, appellant alleged 1) that the behavior of appellee’s son in the household caused him immense physical and emotional upset, and 2) that the failure of appellee to remove her son from the house amounted to condonation of her son’s behavior and, therefore, constituted indignities to appellant.

In his testimony before the master, appellant stated that the problems in the marriage were caused for the most part by the presence of Leona’s son in the household. He testified that Reginald had admitted to stealing money from his dresser several times. According to Mr. Jones, when he complained about these incidents to his wife, she “took [Reginald’s] side of the argument,” (N.T. at 10), and refused to reprimand the young man. Mr. Jones also testified that Reginald admitted stealing a “beef roast” from the household. (N.T. at 13).

However, appellant’s primary contention was that Reginald smoked marijuana while at home to such a degree that the smoke caused appellant to become physically ill requiring him to take prescription drugs. When asked by his counsel if he informed Mrs. Jones about the marijuana, appellant responded that he had told her it was causing him headaches and nausea and that she had promised to discuss the problem with Reginald.

However, when questioned by the master regarding the problem, appellant responded in this way:

THE MASTER: Mr. Jones, did you ever specifically ask your wife to do something about her son, meaning telling him to leave the household?
MR. JONES: No. I didn’t. I didn’t tell her to tell him that____
THE MASTER: Do you know if she ever talked to him?
MR. JONES: I don’t know. I never did ask her about it.

(N.T. at 19, 20)

On direct examination, appellee admitted knowledge of the money stealing incident but testified that she had ordered her son to return the money to Mr. Jones. However, she denied knowledge of the meat incident and the problem regarding the marijuana. She stated: “And [Needom] never talked to me about Reggi[,] those smoking habits or nothing because I don’t know what the scent is. I smelled strange scents, but I didn’t know what it was.” (N.T. at 23). When asked by her counsel to describe the relationship which existed between her husband and her son she answered:

Well, really I didn’t know it was as bad as it was until—I just didn’t know because my son seemed like he liked him and they would speak____ I thought everything was all right. And so far as this sickness about this marijuana, my husband didn’t stay home that much and my son didn’t either and it is strange that all of this occurred when he didn’t stay home that much.

(N.T. at 24).

In the review of a divorce case, it is the responsibility of this court to make a de novo evaluation of the record and to decide independently of the master and the lower court whether a legal cause of action in divorce exists. Rensch v. Rensch, 252 Pa.Superior Ct. 294, 381 A.2d 925 (1977). See also, Mintz v. Mintz, 258 Pa.Superior Ct. 187, 392 A.2d 747 (1978), Gehris v. Gehris, 233 Pa.Superior Ct. 144, 334 A.2d 753 (1975). In this case, we agree with the master’s conclusion that allegations of misconduct solely by a third party and not by the defendant in a divorce action are insufficient to establish the ground of indignities when there is no evidence that the third party was acting with the approval of or under the direction of the defendant.

Section 10 of the Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 10, sets forth the following as the ground of indignities in a divorce action:

1. When a marriage has been heretofore or shall hereafter be contracted and celebrated between two persons, it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged, in the manner hereinafter provided, that the other spouse:
... (f) Shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome....

No general rule has been formulated by our courts as to what constitutes indignities in a particular case. All the facts and circumstances must be considered. Riley v. Riley, 246 Pa.Superior Ct. 265, 369 A.2d 1314 (1976). The cases do agree that indignities can be found in vulgarity, unmerited reproach, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule and any other plain manifestation of settled hate and estrangement. McKrell v. McKrell, 352 Pa. 173, 42 A.2d 609 (1945); Mintz v. Mintz, supra. The burden is on the plaintiff to demonstrate a course of conduct on the part of the defendant spouse which is humiliating, degrading, and inconsistent with the innocent and injured spouse’s position rendering his condition intolerable and his life burdensome. Boniewicz v. Boniewicz, 266 Pa.Superior Ct. 210, 403 A.2d 999 (1979). Furthermore, in Barnes v. Barnes, 181 Pa.Superior Ct. 427, 124 A.2d 646 (1956), we stated that an essential element of the charge of indignities is the intentional conduct by the spouse indicative of this attitude. The facts now before us in this case do not present a situation in which, under the foregoing guidelines, a wife has committed indignities upon her husband.

Appellant directs our attention to Picciano v. Picciano, 110 Pa.Superior Ct. 189, 168 A. 488 (1933), where this court held that the defendant’s abuse of plaintiff’s child by a prior marriage may be. an indignity even if plaintiff was not present. Appellant attempts to convince this court that the Picciano holding can logically be extended to the instant situation where defendant’s son brings about an intolerable condition and causes plaintiff’s life to be burdensome. We are not persuaded that this is a viable argument. Picciano and the instant case provide distinctly different circumstances and we can draw no rule from Picciano which can be applied presently.

Appellant also argues that even though appellee was not a direct participant in inflicting the wrong, she can be charged with it because she tolerated and permitted the acts to continue. Even were we to accept this as an accurate statement of the law, appellant has not met his burden of proof. The testimony, as discussed above, compels us to find that appellant did not prove condonation by Mrs. Jones of her son’s behavior “by a preponderance of clear and satisfactory evidence setting forth compelling reasons for the severance of the marriage relationship.” Mintz v. Mintz, 258 Pa.Superior Ct. 187, 192, 392 A.2d 747, 749 (1978). See also, Regan v. Regan, 227 Pa.Superior Ct. 552, 322 A.2d 711 (1974).

We, therefore, affirm the lower court’s order dismissing exceptions to the master’s denial of divorce.

      . Appellee also testified that appellant left the marital home without offering her any reason other than that he was "not satisfied.” (N.T. 30-31). Appellant subsequently denied this, testifying that when he left he told her it was due to the marijuana and “[o]n account of your children." (N.T. at 33).

      . This action was brought prior to the adoption of the Divorce Code of 1980, 23 P.S. §§ 101-801. Subsection 201(a)(6) of the new Divorce Code, 23 P.S. § 201(a)(6), defines indignities in the same manner.

      . See also, Steinke v. Steinke, 238 Pa.Superior Ct. 74, 78, 357 A.2d 674, 676 (1975): "Such conduct is understood to manifest the spirit of malevolence, hate and estrangement which has come to replace natural love and affection in a marriage and is central to a charge of indignities.”

      . As authority in support of this argument, appellant relies on Freedman, Law of Marriage and Divorce in Pennsylvania, § 340 (2d ed. 1957), which states:
      As in cruelty, so also in indignities, one who counsels or directs a commission of ill-treatment by a third person against the spouse, thereby joins in the wrong. The fortuitous presence of a spouse, however, during the infliction of a wrong, cannot, of itself render him a participant unless circumstances reasonably require that he actively intervened to prevent its continuance.

      . We also note the proposition stated in Coon v. Coon, 173 Pa.Superior Ct. 60, 95 A.2d 344 (1953), that a divorce may not be granted where plaintiffs testimony is uncorroborated and is contradicted in material respects to the extent that the result is no more than a doubtful balance of evidence. This rule is certainly pertinent here where the testimony was primarily accusation and denial by the parties.


author: BROSKY, Judge:

text:
    457 A.2d 954
    COMMONWEALTH of Pennsylvania v. Glenn THIRKIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed March 11, 1983.
    Petition for Allowance of Appeal Granted June 22, 1983.

      Joseph T. Kownacki, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.

       Decision in this case was reached prior to the death of Judge Price.

   BROSKY, Judge:

Appellant was convicted by a jury of aggravated assault and robbery in September, 1979. He was sentenced to a term of imprisonment of ten to twenty years and this appeal followed. On appeal, Mr. Thirkield argues that the lower court lacked jurisdiction to entertain a petition for extension of time filed by the Commonwealth in June, 1979; that the lower court erred in denying a motion to dismiss filed by him in September, 1979; and, that the trial court should not have permitted a prior statement of a prosecution witness to be introduced into evidence at trial. For the reasons that follow, we reverse the judgment.

The incident that led to appellant’s conviction occurred in November, 1978 at a Holiday Inn in Erie, where an elderly man was beaten and robbed of a cashmere coat and a small amount of cash.

A complaint was filed on December 6, 1978 charging appellant with aggravated assault and robbery.

On April 6, 1979, a motion to suppress which had been argued in March was granted as to certain tangible evidence and statements made by appellant. The Commonwealth appealed from this order on May 8, 1979.

On June 4, a petition to extend the time of trial was filed; on June 22, 1979, following a hearing, the time of trial was extended to the September, 1979 term. The lower court explained in its opinion that it lacked jurisdiction to try the case in either the May or June terms of court because of the pendency of the Commonwealth’s appeal.

On July 23, 1979, the Commonwealth’s appeal was withdrawn.

On August 17, 1979, appellant filed a motion to dismiss which was denied following a hearing on September 4.

Trial was held during the September term.

Appellant argues that because an appeal was pending before the Superior Court in June, 1979, the lower court lacked jurisdiction to grant a time extension to the Commonwealth. Although we agree with appellant’s argument as to the lack of jurisdiction, we do not believe that the charges should be dismissed.

In Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), a defendant argued that his right to a speedy trial guaranteed by the federal and state constitutions and Pa.R. Crim.P. 1100 had been violated because the Commonwealth failed to petition the court for an extension of time for trial during the pendency of its appeals from suppression orders. Our Supreme Court held that the trial was automatically stayed pending disposition of the appeals. The court said that the result was mandated by Rule 1701(a) of the Pennsylvania Rules of Appellate Procedure which provides:

(a) General Rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
Pa.R.A.P., Rule 1701(a). (Emphasis supplied.)

(Id., 495 Pa. at 498, 434 A.2d at 1201.)

The court concluded that “the timely appellate procedures taken by the Commonwealth clearly divested the trial court of authority to proceed, and thus acted as an automatic supersedeas of the operation of Rule 1100.” Id., 495 Pa. at 498, 434 A.2d at 1201.

We must conclude, based on Jones, that the trial court lacked jurisdiction to grant an extension of time. However, we also must conclude that such an extension was not necessary pending disposition of the appeal: Jones v. Commonwealth, supra.

Appellant argues that in September, the lower court should have dismissed the charges on the grounds that the June 22 extension order was not supported by a showing of due diligence. However, since Jones makes it clear that no petition for an extension need even have been filed in June, we find no error in the lower court’s refusal to dismiss.

There is no allegation that the Commonwealth acted in bad faith in taking its appeal or even in discontinuing it. Instead, appellant bases his argument on the presumption that during the pendency of its appeal, the Commonwealth must have made a showing of due diligence. In light of Jones, we reject this argument. Although the lower court did not have jurisdiction to rule on the petition to extend time, its action constituted harmless error since the same result would properly have been reached without a hearing. We, therefore, hold there was no violation of Rule 1100.

We will now address appellant’s final argument which concerns the admissibility of a prior statement of a prosecution witness.

Appellant’s nephew, Edward J. Hazelett was called to testify by the prosecution. In November, 1978, he apparently made and signed a written statement given to the police. In part he said in that statement that appellant told him that he had “jumped” the victim and taken $18 or $19 from him. He also said that “the next day” appellant was wearing a tan cashmere coat. He stated further that when he told appellant that he ought to get rid of the coat, appellant replied that he would.

At trial, the witness testified that he could not remember whether appellant had told him that he had beaten the victim and taken his money. He also said that he had not seen appellant wearing a cashmere coat.

The prosecution attempted to refresh Mr. Hazelett’s recollection by showing him his earlier statement but when that approach failed, the statement was introduced as substantive evidence. The witness had identified the signatures on the statement as his, although he said he had no memory of having made it.

The trial court based its decision that the prior statement was admissible on our decision in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979) (allocatur denied (1979) (reconsideration denied, 1980). In Loar, we held, contrary to the previous state of the law, that prior inconsistent statements of a witness could be introduced as substantive evidence.

We would also conclude that Loar permits the introduction of the statement in this case, but because our Supreme Court has recently expressed disapproval of the Loar holding, in the case of Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982), we believe we can no longer adhere to the Loar decision.

In Waller, supra, the Supreme Court reiterated that prior inconsistent testimony is limited to the purpose of impeaching the trial evidence and may not be used substantively. Id., 498 Pa. at 39, 444 A.2d at 656.

In footnote two of the Waller opinion, the court wrote, “We decline to adopt the reasoning ... in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979), that prior inconsistent statements may be used as substantive evidence. Such has never been and is not now the law in this Commonwealth.” Id. 498 Pa. at 39, 444 A.2d at 656.

The Waller court reaffirmed that,

[T]he exercise of the court’s discretion in granting a request to cross-examine one’s own witness should include a consideration as to:
(a) whether the testimony was unexpected;
(b) whether the testimony was contradictory
(c) whether the testimony was harmful or injurious to the party calling the witness and beneficial to the opposing side; and
(d) whether the scope of cross-examination was excessive.

Id., 498 Pa. at 39, 444 A.2d at 656, (citing Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974).

Mr. Hazelett’s prior statement should not have been introduced as substantive evidence.

See Commonwealth v. Knudsen, 443 Pa. 412, 414-415, 278 A.2d 881, 882-883 (1971); Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590, 592 (1973), in which the Supreme Court said that when a witness claims he does not know or cannot remember, the prior statements should not be introduced [for impeachment purposes] because of the danger that the prior statements will be considered as substantive evidence by the ]ury. See also Waller, supra, 498 Pa. 38, 444 A.2d at 655-6.

Although the trial court understandably relied upon Loar, we believe that in view of Waller, we must reverse and remand for new trial.

      . Appellant does list as a fourth issue in his statement of questions, "whether the court below erred in denying defense counsel's motion for a demurrer and subsequent directed verdict at trial.” However, this issue was never argued by appellant and we will not consider it.

       Although Pa.R.A.P. 1701(a) did not become effective until approximately seven months after the suppression hearing in this case, the Official Comment to Rule 1701 notes:
      Subdivision (a) codifies a well-established principle. See e.g. Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968); Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965).


author: ROWLEY, Judge:

text:
    457 A.2d 957
    COMMONWEALTH of Pennsylvania v. Louis SINWELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1982.
    Filed March 11, 1983.

      James Richard Moyles, Stroudsburg, for appellant.
    Donald B. Corriere, District Attorney, Easton, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

Appellant and three other men were arrested on March 23, 1980 and charged with theft of movable property, receiving stolen property and criminal conspiracy. The trial of appellant and co-defendant Chester Gold was severed from that of co-defendants Daniel Stahler and Edward Harka. Following a jury trial, appellant was found guilty of all charges. Motions for a New Trial and in Arrest of Judgment were filed and denied. On October 1, 1981, appellant was sentenced to not less than eight months nor more than twenty-four months imprisonment, and was made available for immediate work release. Appellant then filed a Motion for Reconsideration of Sentence which was summarily denied on October 13, 1981. This appeal followed.

Appellant raises five issues on appeal: 1) Did the court err in admitting into evidence certain photographs depicting the scene of the crime?; 2) Did the court err in refusing to grant appellant’s Motion for a Mistrial?; 3) Did the court err in refusing to grant appellant’s Demurrer?; 4) Did the court err in refusing to grant appellant’s Motion for a Directed Verdict?; and 5) Did the court abuse its discretion by imposing a sentence upon appellant which was grossly disparate to that imposed upon co-defendants Stahler and Gold?

The facts of the case are as follows. On the night of March 23, 1980, Officer Richard Kitlar of the Bethlehem Township Police observed appellant and his three co-defendants trying to push something into a Ford Falcon automobile. The vehicle was parked near an embankment at a closed entrance to a Bethlehem Steel quarry. Upon arriving at the vehicle, Officer Kitler discovered that it was filled with a “tremendous amount” of copper wire. Beginning at the vehicle, there was a continuous trail of footprints, disturbed terrain, drag marks and strands of wire which led through the quarry to a stone crusher building where conduit pipe had been cut and copper wire had been stripped. This trail was followed on the night in question and again the next morning, at which time it was photographed. At the crusher, a hacksaw, new hacksaw blades and blade wrappers were found. The copper wire found in the vehicle was positively identified as having come from the freshly cut conduit pipes at the crusher.

At trial, the Commonwealth introduced into evidence photographs depicting footprints and drag marks from the site where the car was parked to the stone crusher. Appellant argues that the admission of these photographs was improper for two reasons: 1) a proper foundation was not laid for introduction of the photographs; and 2) the footprints in the photographs were in no way linked to appellant. The admission of photographs in a criminal case is in the sound discretion of the trial court and will not afford grounds for reversal absent a flagrant abuse of discretion. Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975). We find no such abuse of discretion in this case.

A review of the record indicates that a proper foundation was laid for admission of the photographs. Three Commonwealth witnesses testified that the photographs were a fair and accurate depiction of the scene on the night in question. Such evidence is sufficient to lay a foundation for the photographs’ admission. See, Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978).

Appellant also argues, however, that footprint evidence is not admissible unless matched or compared with the shoes of the accused. In this case, no attempt was made by the Commonwealth at trial to match or compare the footprints shown in the photographs to the shoes worn by appellant on the night he was arrested. It appears that Pennsylvania’s appellate courts have not yet ruled on whether “noncomparison” footprint evidence may be received as a means of linking an accused to the crime for which he is being prosecuted. However, a number of other jurisdictions have addressed the question, with some holding that such evidence is admissible and others excluding it. See Annot., 35 A.L.R.2d 852 (1954); 1 Wharton’s Criminal Evidence § 193 (13th ed. 1972).

We recognize that evidence of footprints alone, without more, would not be admissible. However, evidence of additional circumstance may be sufficient to make the evidence relating to the “noncompared” footprints relevant and therefore admissible. We have concluded that in view of the evidence of additional circumstances present in this case, the photographs were properly admitted. A case similar to the one presently before us is People v. Flores, 92 Mich.App. 130, 284 N.W.2d 510 (1979). In Flores, a rape victim’s neighbor discovered a trail of footprints in the snow leading from the victim’s house to the house in which the defendant was found. The Michigan Court of Appeals held that evidence of the footprints was admissible since the jury could properly infer from them the presence of the maker at the time of the crime. Even though the prosecutor in Flores could not identify the footprints as those of the defendant, it was held that this factor did not effect admissibility, but rather was properly a matter of weight for the trier of fact. Likewise, when the presence of additional circumstances warrants it, we hold that footprint evidence is admissible, although not based on comparison evidence, to prove an accused’s involvement in the crime charged.

While the footprint evidence in this case was relevant to prove appellant’s involvement in the crime, that was not the only issue in the case to which it was relevant. Evidence is relevant when it tends to establish facts in issue or in some degree advances the inquiry and thus has probative value. Whistler Sportswear v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). One of the purposes for admitting the photographs of the footprints into evidence in this case was to show that the copper found in the car had been brought there from the stone crusher building at the Bethlehem Steel quarry. Certainly, evidence from which it can be inferred that the copper in appellant’s possession had been taken from Bethlehem’s property was relevant. The photographic evidence of footprints in this case was therefore relevant and its admission did not constitute an abuse of discretion.

Appellant next argues that the court erred in refusing to grant a mistrial after the Commonwealth’s chief witness, a police officer, “paraded” in full view of the jury with an inadmissible item of evidence; specifically, a hacksaw. Nothing in the record supports the allegation that this item was “paraded” in front of the jury. It does appear, however, that the witness had the hacksaw in the courtroom with him briefly prior to the beginning of testimony. This item was never suppressed. It was not introduced into evidence because it was inadvertently not listed as tangible evidence in the Commonwealth’s answer to pre-trial discovery. There is no indication that any of the jurors actually noticed the hacksaw. Furthermore, during cross-examination of the officer, appellant’s own attorney extensively questioned the witness about the same hacksaw. A brief glimpse of the hacksaw by the jury, if they did see it, could not have caused any prejudice to appellant. Therefore, the Motion for Mistrial was properly denied.

Appellant’s arguments that the court erred in denying his Demurrer and Motion for a Directed Verdict are both based on the allegation that the evidence was insufficient to support a verdict of guilty. In reviewing the sufficiency of the evidence to support a conviction, we must view the evidence in the light most favorable to the Commonwealth, as the verdict winner. Commonwealth v. Smith, 484 Pa. 70, 71, 398 A.2d 948 (1979). It is true that all of the evidence against appellant was circumstantial. However, circumstantial evidence alone may be sufficient to support a conviction. Commonwealth v. Cox, 460 Pa. 566, 333 A.2d 917 (1975). We disagree with appellant that he was “merely seen in the vicinity of the alleged offense.” Appellant and three others were observed pushing something into a car which was almost completely filled with copper wire. A continuous trail of footprints, drag marks and pieces of wire led directly from that car to a stone crusher from which copper wire had been stripped. The wire in the car was positively identified as having come from the pipes at the crusher. The evidence presented by the Commonwealth was sufficient to support the verdicts.

Appellant’s final argument is that the court abused its discretion by imposing a sentence upon him which was grossly disparate to that imposed upon co-defendants Stahler and Gold.

A review of the record shows that Stahler received a term of imprisonment of not less than six nor more than twenty-three months. That sentence is substantially similar to appellant’s sentence of not less than eight nor more than twenty-four months. We find no “gross disparity” between the sentences received by appellant and Stahler. A disparity does exist, however, between the sentences received by appellant and Gold. Although Gold received a sentence of not less than six nor more than twenty-four months, that sentence was suspended and Gold was placed on probation for two years.

The trial court is not bound to impose a like sentence on all participants of a crime. Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). However, in order to impose different sentences on co-defendants, the court must articulate differences between the co-defendants that justify the disparate sentences. Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978). The reason why one co-defendant receives a more severe sentence than another must be stated on the record. Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980).

In the present case, the sentencing judge received presentence reports on both appellant and Gold. However, the reports are not included in the record filed with this Court on appeal, and we do not know what differences between Gold and appellant may be disclosed therein. From a comparison of the sentencing hearing transcripts, it appears that appellant had two prior convictions: one for driving with a suspended license, and one for drag racing. At the time of sentencing, he was working full time at Bethlehem Steel where he had worked since 1974.

Gold, on the other hand, had at least three prior convictions: one for robbery, one for a drug related offense, and one for receiving stolen property. Gold was unemployed at the time of sentencing and had been fired several times for repeated tardiness and absenteeism. Furthermore, Gold was on probation at the time this offense was committed.

At the time of sentencing, the court did not explain why Gold received a sentence of probation as compared to one of imprisonment for appellant. Appellant filed a Motion for Reconsideration of Sentence. However, the Motion was denied without a hearing and without an opinion. In its opinion filed pursuant to Pa.R.A.P. 1925, the court merely refers to the sentence colloquy, without explanation of the disparity.

Because the reasons for the disparity in sentences received by appellant and co-defendant Gold are not stated on the record, we will vacate the Judgment of Sentence imposed upon appellant and remand this case for resentencing. At that time, the court should state, on the record, the reasons for the disparity, if any, between appellant’s sentence and those imposed on his co-defendants.

Judgment of Sentence vacated and case remanded for resentencing in accordance with the foregoing opinion.

Jurisdiction is relinquished.

      . Prior to trial the suppression court ruled that the arrests were made without probable cause and evidence of the examination of appellant’s shoes was suppressed. The photographs and observations of the crime scene were not suppressed since these were obtained by means sufficiently distinguishable from the arrest.


author: JOHNSON, Judge:

text:
    457 A.2d 961
    The FIRST NATIONAL BANK OF FRYBURG, v. Edward G. KRIEBEL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed March 18, 1983.

      Alfred H. Lander, Clarion, for appellant.
    John H. Drayer, Clarion, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Appellant Edward G. Kriebel appeals the Order of the trial court affirming its Order of December 22, 1980 and refusing Appellant’s Petition for Reconsideration and/or Rehearing.

On January 21, 1974 a promissory note in the amount of $105,000 was executed and made payable to Appellee Bank by L & E Inc. The note was signed by: (1) Appellant, in his capacity as President of L & E Inc., (2) Donald W. Deitz, in his capacity as Secretary and Treasurer of L & E Inc., (3) Fred B. Hawk, individually and (4) Appellant, individually. The pleadings and deposition of Appellant indicate that Appellant and Fred B. Hawk signed in their individual capacities as accommodation parties. The note contained a warrant of attorney authorizing entry of judgment by confession.

On June 13, 1979 written demand was made upon Appellant and Fred B. Hawk for the amount due on the note. The Bank confessed judgment on the note in the amount of $13,500 on September 25, 1979 against Appellant only, pursuant to the warrant of attorney contained in the note.

Appellant’s Petition to Strike and/or Open Judgment and Stay Proceedings, filed October 30, 1979, was denied by the trial court on December 22, 1980. Appellant’s Reconsideration petition was then denied on May 13, 1981 and this appeal followed.

Appellant raises five issues on appeal: (1) whether Appellee Bank conformed to law by confessing judgment against Appellant and not including the other parties who had executed the note, (2) whether the death of Fred B. Hawk, the other accommodation party, revoked the warrant of attorney in the note as to the surviving obligors, (3) whether Appellant presented sufficient evidence to support a meritorious defense to the judgment justifying its opening, (4) whether Appellee Bank’s defense of the statute of limitations to Appellant’s claim of set off is meritorious and (5) whether Appellee Bank’s defense of negligence to Appellant’s claim of misconduct was proper.

We note initially that a petition to open a judgment is an appeal to the equitable and discretionary powers of the trial court. First Pennsylvania Bank, N.A. v. Lehr, 293 Pa.Super. 189, 438 A.2d 600 (1981); Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 428 A.2d 156 (1981). The facts as alleged must be viewed by the court in the exercise of its discretion in the light most favorable to the moving party and the court must accept as true all evidence and reasonable and proper inferences flowing therefrom. First Pennsylvania Bank, N.A. v. Lehr, supra; Pa.R.C.P. 2959(e).

Generally, a reviewing court will limit review of proceedings to open a judgment entered by confession or upon a warrant of attorney to ascertain whether the discretion of the trial court was properly exercised, and will reverse only if an abuse of discretion or manifest error is shown. Funds for Business Growth, Inc. v. Woodland Marble and Tile Co., 443 Pa. 281, 278 A.2d 922 (1971); Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., supra.

If any doubt exists regarding the propriety or effect of a warrant of attorney authorizing confession of judgment, that doubt must be resolved against the party in whose favor the warrant is given. Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977).

Appellant first contends that the trial court should have stricken the judgment because Appellee Bank was required to have confessed judgment against all parties who executed the note, as opposed to Appellant alone.

The test for striking a confessed judgment was set forth in Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 205-6, 363 A.2d 1229, 1232 (1976):

A motion to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. If the record is self-sustaining, the judgment will not be stricken. See, e.g., Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); Cameron v. Great Atlantic & Pacific Tea Co., Inc., 439 Pa. 374, 266 A.2d 715 (1970); Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Washington County Controller’s Case, 427 Pa. 631, 235 A.2d 592 (1967); ...

See also, Solebury National Bank of New Hope v. Cairns, supra.

The note itself states “... I, we, or either of us, promise to pay...”, as to the obligation. This language makes the obligation both joint and several. Croasdell v. Tallant, 83 Pa. 193 (1876); see also 13 Pa.C.S.A. § 3118(5).

Appellant signed the note both in his representative capacity as president of L & E Inc. and individually, along with Fred B. Hawk. Therefore, Appellant’s signature as an individual makes him a co-maker on the note. See Philadelphia Bond & Mortgage Company v. Highland Crest Homes, Inc., 235 Pa.Super. 252, 340 A.2d 476 (1975). As a maker, Appellant was liable for payment on the note. 13 Pa.C.S.A. § 3413(a). Appellant’s status as accommodation party, as well as co-maker, does not affect his liability as co-maker under the instant facts.

Therefore, as the obligation was joint and several and because, on the face of the record, Appellant signed the note individually as co-maker, he is liable for payment of the entire obligation individually. We find no error by the trial court in refusing to strike the judgment on this issue.

The second issue is whether the death of Fred B. Hawk revoked the warrant of attorney as to the surviving obligors of the note.

The death of a maker to an instrument terminates the warrant of attorney to confess judgment. First Federal Savings & Loan Association of Greene County v. Porter, 408 Pa. 236, 183 A.2d 318 (1962); Fidelity Bank v. Gorson, 296 Pa.Super. 1, 442 A.2d 265 (1982). However, a judgment may be entered against the survivor of a number of obligors. First Federal Savings & Loan, supra.

Therefore, the death of Fred B. Hawk merely extinguished the warrant of attorney as to him, not as to the remaining obligors. Therefore, we find no error by the trial court.

The third issue concerns whether sufficient evidence to support a meritorious defense was presented by Appellant.

One who petitions to open a confessed judgment must act promptly and offer a meritorious defense. Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., supra.

It appears that the Petition to Strike or Open was filed promptly, thirty-five days after judgment was entered.

Appellant alleges as his defenses to the entry of judgment that (1) it was improper for the Bank to have attempted collection of the note against Appellant as accommodation party when no attempt had been made to collect against L & E Inc., (2) that a transfer of funds from the account of L & E Inc. to Donald W. Deitz, allegedly to satisfy Deitz’ personal obligations, was prohibited under the banking laws and therefore constitutes a set off against the note’s obligation, and (3) that said transfer of funds constituted a breach of trust by the Bank, thereby constituting a set off to the instant judgment.

Initially, we should note the defenses available to an accommodation party:

Section 3606(a) states:

§ 3606. Impairment of recourse or of collateral
(a) General rule.—The holder discharges any party to the instrument to the extent that without the consent of such party the holder:
(1) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; or
(2) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.

Also, as stated in J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code, pp. 428-9 (1972),

A surety who has signed an instrument is like other parties in that he is generally liable in the capacity in which he signed. Unlike other parties the surety may have special defenses, for: (1) he is not liable to the party accommodated (3-415(5)) [3415(e) ] (even if his contract on the instrument would normally make him liable to such person); (2) he may be discharged if the holder “releases or agrees not to sue” the party accommodated or extends the time for payment or otherwise “suspends” the right to enforce his obligation against the party accommodated, and (3) he may be discharged if the holder “unjustifiably impairs any collateral for the instrument” (for example, fails to perfect a security interest).

See also 13 Pa.C.S.A. § 3415(e).

Also, Appellant as accommodation party may assert any contractual defense available to the principal debtor, as against one not a holder in due course. See 12A P.S. § 3-415, comment 1; J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code, pp. 440-3 (1972).

In the instant case, Appellant has neither asserted, nor does the record reveal, any valid defense available under the instant action to strike or open the judgment.

Concerning the first defense, as a co-maker, Appellant was directly liable on the note and Appellee Bank was not required to attempt collection initially against L & E' Inc., as stated supra.

Therefore, Appellant’s claim is meritless.

Appellant’s second and third defenses contained in his third issue both involve an alleged set off to the judgment entered.

The law is well settled that an unliquidated set off is not grounds for opening a judgment confessed under warrant of attorney, absent fraud. Harrison v. Galilee Baptist Church, 427 Pa. 247, 234 A.2d 314 (1967). The alleged set off claimed by Appellant is clearly unliquidated.

Appellant’s reliance on Yezbak v. Croce, 370 Pa. 263, 88 A.2d 80 (1952) is misplaced. In Yezbak, evidence was presented concerning an oral agreement to use certain credit as a set off against a mortgage obligation. No such evidence of an agreement to set off is present in the instant case.

Therefore, even if such a defense is available to Appellant as an accommodation party, it would have to be raised in a separate action by Appellant.

Upon a complete review of the record, we find that the trial court did not abuse its discretion in refusing to open the judgment based on the allegations of improper transfer of funds. See Aimco Imports, Ltd. v. Industrial Valley Bank & Trust Co., 291 Pa.Super. 233, 435 A.2d 884 (1981).

As to Appellant’s last two issues, we hold them to be meritless, based on our determination of issue three.

The order dated May 13, 1981 is affirmed.

      . Pa.R.C.P. 2959(e) states:
      Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure

        (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

      . Act of November 1, 1979, P.L. 255, No. 86, § 1, eff. January 1, 1980. Formerly 12A P.S. § 3-118(e).

      . Formerly 12A P.S. § 3-413(1).

      . Appellant’s proper recourse would be for reimbursement from the other makers. See 13 Pa.C.S.A. § 3415(e), formerly 12A P.S. § 3-415(5).

      . Formerly 12A P.S. § 3-606(1).

      . Formerly 12A P.S. § 3-415(5).

      . Although the Uniform Commercial Code comments do not currently appear in Title 13, section 7 of the Act of Nov. 1, 1979, P.L. 255, No. 86 states:
      Section 7. Legislative intent.—In enacting this act, it is the intent of the General Assembly to transfer the former provisions of the act of April 6, 1953 (P.L. 3, No. 1), known as the “Uniform Commercial Code,” reenacted, amended and revised October 2, 1959 (P.L. 1023, No. 426), to Title 13 of the Pennsylvania Consolidated Statutes (relating to commercial code) without effecting a change in substantive law and the act shall be interpreted and construed to effectuate this intent.
      We deem this to mean that the comments to the U.C.C. remain in effect in Title 13.