author: KELLY, Judge:

text:
    566 A.2d 870
    DAVIS COOKIE COMPANY, INC., Appellant, v. Thomas WASLEY, Appellee. Thomas WASLEY, Appellee, v. DAVIS COOKIE COMPANY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 17, 1989.
    Filed Nov. 21, 1989.

      Avrum Levicoff, Pittsburgh, for appellant.
    Blythe H. Evans, Jr., Wilkes-Barre, for appellee.
    Before CIRILLO, President Judge, and KELLY and HESTER, JJ.
   KELLY, Judge:

In these consolidated appeals we address two significant procedural issues regarding permissive counterclaims under Pa.R.C.P. 1031.

First, we are called upon to determine whether the Luzerne County trial court abused its discretion in failing to grant allowance to amend an answer with new matter to assert a permissive counterclaim under Pa.R.C.P. 1033. We quash this appeal as having been taken improvidently from an interlocutory and unappealable order.

Second, we are called upon to determine whether the Clarion County trial court erred granting dismissal on the basis of the pendency of a prior action in another county in which the cause of action alleged as the basis of the complaint could have been, but was not, asserted as a permissive counterclaim. We vacate the order dismissing the complaint and remand with instructions.

Facts and Procedural History

Since the early 1950’s, appellant, Davis Cookie Co. (Davis Cookie), has had a license from Archway Cookies, Inc. to bake and sell “Archway” cookies in Pennsylvania. In 1987, Davis Cookie and appellee Thomas Wasley (Wasley) negotiated a franchise agreement memorialized by a written letter of intent. Wasley made deposits toward the franchise fee agreed in the amount of $5,247.60. Later, however, he decided not to follow through with the franchise agreement. The dispute between the parties arises from Wasley’s withdrawal.

Wasley desires return of his deposit. Davis Cookie contends that under the terms of the agreement the deposit was not refundable, and that Wasley is also liable for liquidated damages under the terms of the agreement in the amount of an additional $5,247.60. Substantively, we are presented with a relatively straightforward and uncomplicated contract case. It was not destined to remain so.

On March 7, 1988, Wasley filed an action against Davis Cookie in Luzerne County seeking return of its deposit. In its answer and new matter, pursuant to Pa.R.C.P. 1080, Davis Cookie responded to Wasley’s complaint by asserting that under the clear terms of the letter of intent signed by the parties the deposit was not refundable. Davis Cookie declined to present a counterclaim under Pa.R.C.P. 1081, for liquidated damages in Wasley’s Luzerne County action.

On March 80, 1988, Davis Cookie filed an action against Wasley in Clarion County seeking liquidated damages for Wasley’s alleged breach of the franchise agreement. Wasley asserted the ancient defense of lis alibi pendens by preliminary objections. The trial court sustained the objections and dismissed the suit on July 12,1988. Davis Cookie filed timely notice of appeal.

Despite its expressed preference for pursuing its breach of contract action in Clarion County, and the prospect of eventual success on appeal from the order dismissing its Clarion County action, Davis Cookie proceeded to move to amend its answer and new matter in the Luzerne County action, pursuant to Pa.R.C.P. 1033, to assert its claim for liquidated damages as a permissive counterclaim in Wasley’s action for return of its deposit. Wasley opposed the motion. The trial court denied the motion, opining that Davis Cookie had created its own procedural difficulties and that the trial court was disinclined to exercise its discretion to extricate Davis Cookie from a mess of its own making. Davis Cookie again filed timely notice of appeal.

Davis Cookie’s separate appeals were consolidated for argument before this Court. On appeal, Davis Cookie contends that because it was privileged under Pa.R.C.P. 1031 to decline to present its permissive counterclaim for liquidated damages in Wasley’s Luzerne County action, the trial court erred in dismissing its Clarion County action on the basis of Wasley’s asserted' lis alibi pendens defense. Davis Cookie also contends that the trial court in Luzerne County abused its discretion in denying its motion to amend its answer to assert a counterclaim under Pa.R.C.P. 1033. We reverse the dismissal, and quash the appeal of the order denying allowance to amend.

I. Appeal from Denial of Allowance to Amend

In Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987) and Barr v. General Accident Group Ins., 360 Pa.Super. 334, 520 A.2d 485 (1987), this Court held that order denying complainant’s allowance to amend pursuant to Pa.R.C.P. 1033 to add a new cause of action arising from the same transaction or occurrence, effectively put the complainant out of court on the claims, and were therefore final and appealable. The instant case, though also involving an appeal from an order denying allowance to amend under Pa.R.C.P. 1033, is nonetheless materially distinguishable.

In Gabriel and Barr the effect of the order denying allowance to amend under Pa.R.C.P. 1033 was to preclude the complainant from complying with the compulsory joinder rule of Pa.R.C.P. 1020(d)(l & 4) which provides that:

(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
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(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.

The effect of a failure to comply with Pa.R.C.P. 1020(d)(1) is a waiver of any cause of action not so joined. Hence, the denial of a motion to amend under Pa.R.C.P. 1033 to assert a claim covered by the compulsory joinder rule has the effect of a disposition of such a claim by dismissal on the merits.

In the instant case, it is the defendant who appeals from an order denying allowance to amend the answer and new matter to assert a permissive counterclaim. While the denial of allowance to amend will result in a certain degree of duplication of efforts and consequent cost both to the parties and to the court system, Davis Cookie is not “out of court” on its claim. This Court recently explained in Bender’s Floor Covering Co. v. Gardner, 387 Pa.Super. 531, 564 A.2d 518 (1989):

In this case, the trial court’s denial of appellants’ petition to amend and to present a new counterclaim did not serve to put appellants “out of court” as to that claim, nor is the claim in danger of being irreparably lost as a result of the order. Succinctly, appellants may, without impediment, file that same claim in front of the same or a different court (providing such a court has proper venue and subject matter jurisdiction) within the limitations period, without jeopardizing their rights. Thus, appellants are not out of court on the merits of their counterclaim by reason of the trial court’s interlocutory order.
In comparison, had appellants appealed a pre-trial order denying leave to amend an answer so as to assert an affirmative defense, it would be deemed a final order for purposes of appeal. Unlike counterclaims, affirmative defenses are compulsory, and therefore must be timely pleaded, or they are forever lost. Zarnecki v. Shepegi, supra, [367 Pa.Super. 230] 532 A.2d [873] at 875 [ (1987) ], citing Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); see also Pa.R.C.P. 1030, 1032. The permissive nature of counterclaims in Pennsylvania is the controlling distinction in this case.

387 Pa.Superior Ct. at 535-536, 564 A.2d at 520-21. (Emphasis in original).

Rule 1033 motions for leave to amend in order to present permissive counterclaims are thus materially distinguishable from Rule 1033 motions for leave to amend in order to comply with the compulsory joinder rule or the rule requiring affirmative defenses to be plead in new matter. As in Bender’s Floor Covering Co. v. Gardner, supra, we are constrained to quash the appeal from the trial court’s interlocutory order denying leave to amend.

II. Dismissal Based on Lis Alibi Pendens Grounds

The Clarion County trial court found that Davis Cookie’s claim for breach of contract seeking liquidated damages involved the same parties, same causes of action, same rights, and same requested relief as were involved in the prior suit pending in Luzerne County, and granted Wasley’s preliminary objection seeking dismissal on lis alibi pendens grounds. On appeal, Davis Cookie contends that because counterclaims are permissive rather than compulsory, he was privileged to bring his claim for breach of contract seeking liquidated damages in a separate action in any proper forum of his choosing, and was not required to plead it as a counterclaim in Wasley’s Luzerne County suit seeking return of his deposit made under the same contract. Despite the apparent waste of judicial resources and unnecessary expense to the parties, we are constrained to agree with Davis Cookie, and reverse the dismissal.

A preliminary objection alleging the pendency of a prior action is a plea in abatement which derives from the ancient maxim, “nemo debet bis vexari pro una et eadem cause,” (no man shall be twice vexed for the same cause of action). See generally Broom’s Maxims, at 135-39 (1845). In Cleveland, Painsville, and Ashtabula R.R. Co. v. Erie, 27 Pa. 380 (1856), Justice Black explained:

No man shall be twice harassed for the same cause. After judgment or decree by a tribunal of competent jurisdiction, another complaint, grounded on the same facts, will not be listened to, either by the same tribunal or a different one. This nobody denies. It is equally clear that a party cannot be doubly vexed by two proceedings for the same cause carried on against him at the same time. Two suits for the same cause of action, even when brought in the same court, will never be tolerated. It is much worse when the several suits are in different courts, requiring the defendant to appear in two places at once. When it happens, as in this case, that the party must defend himself against separate attacks, simultaneously made at two most distant points in the state — on the shore of Lake Erie and on the banks of the Delaware — the hardship may become intolerable. This is not all. If a party may carry on two suits against his adversary, he may carry on twenty just as well, provided he can find, as in some cases he might find, that a number of courts having jurisdiction, and thus he could not only harass and vex him, but plague him to death____ It is impossible to administer justice, and it never has been done in any civilized country, without adopting the rule that a party who brings one suit in a court of competent jurisdiction, must finish it before he can be allowed to prosecute another.
For these and other reasons, it has always been held that, at law, one pending action may be pleaded in abatement of another.

27 Pa. at 382-83; see also Spier v. Locust Laundry, Inc., 56 Pa.Super. 328, 328-30 (1914).

The strict formality of the common law pleading system, however, rendered the plea of lis alibi pendens one of limited application. The plea was not deemed meritorious unless both suits inv'olved the same parties (acting in the same legal capacity), the same causes of action (with due regard for the common law distinctions between contract, trespass, and equity actions), the same rights asserted, and the same relief requested. See Cunningham v. Horne, 406 Pa. 1, 176 A.2d 648 (1961); Dickerson v. Dickersons Overseas Co., 369 Pa. 244, 85 A.2d 102 (1952); Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900); Norristown Automobile Co. v. Hand, 386 Pa.Super. 269, 562 A.2d 902 (1989); Virginia Mansions Condo. v. Lampl, 380 Pa.Super. 452, 552 A.2d 275 (1988); Singer v. Dong Sup Cha, 379 Pa.Super. 556, 550 A.2d 791 (1988); Penox Technologies v. Foster Medical, 376 Pa.Super. 450, 546 A.2d 114 (1988); Procacina v. Susen, 301 Pa.Super. 392, 447 A.2d 1023 (1982); Glazer v. Cambridge Industries, 281 Pa.Super. 621, 422 A.2d 642 (1980); Donatucci v. Utterback, 264 Pa.Super. 49, 398 A.2d 1051 (1979); Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976); Taylor v. Humble Oil & Refining, 225 Pa.Super. 177, 311 A.2d 324 (1973); Stewart v. Turner, 67 Pa.Super. 255 (1917).

Under Pennsylvania law, the merit of a plea in abatement on Us alibi pendens grounds “is purely a question of law determinable from an inspection of the pleadings.” Hessenbruch v. Markle, supra, 45 A. at 671; Procacina v. Susen, supra, 447 A.2d at 1025. The test for determining the validity of a Us alibi pendens plea in Pennsylvania state courts is not the same as would apply if the second suit had been brought in federal court. Under federal law, the second court may consider comity principles, judicial economy interests, the adequacy of relief available in the alternate forum, the identity of the parties and issues, the likelihood of prompt disposition, the convenience of parties and counsel, and the potential for prejudice to either party, in deciding whether to abate a federal action based upon the pendency of a prior state action. See CBS, Inc. v. Tee Vee Records, 96 F.R.D. 163, 165-66 (S.D.N.Y. 1982); see generally Annotation, Federal Stay- — State Action Pending, 5 ALR FED 10, 10-146 (1970 & 1988 supp.) (especially § 3). The differences between the Pennsylvania and federal rules are significant. While federal courts are free to consider the motivations of the parties and the interests of judicial economy, Pennsylvania courts are not. In Pennsylvania, the record is reviewed to determine if the required common law unities are present. If they are present, the plea is to be sustained; if they are not, the plea may not be sustained. It is a question of law, rather than a question of the court’s discretion. See Hessenbruch v. Markle, supra; Procacina v. Susen, supra.

Here, the required unities are not present. While the parties are the same and the suits arise from the same contract, neither the cause of action, rights asserted, nor relief requested are the same. In Luzerne County suit, Wasley seeks return of his deposit by a cause of action which essentially sounds in the nature of an equity action for recession or reformation of the contract (recission and return of consideration, or reformation by striking the clause designating the deposit as non-refundable). The Clarion County suit, on the other hand, involves a suit in contract for breach and seeks liquidated damages. It is well-settled that a lis alibi pendens plea may not be sustained in such circumstances. See Penox Technologies v. Foster Medical, supra, 546 A.2d at 115; Raw v. Lehnert, supra, 357 A.2d at 576; Stewart v. Turner, supra, 67 Pa.Super. at 260; Raessler v. Temperance Mut. Ben. Assn., 3 Pa.Co.Ct. 393, 395 (1882). Raessler, though a common pleas decision, is particularly relevant here. In Raessler, Judge Schulyer explained:

As has been seen, the present suit is brought to enforce the policy of insurance on which it is founded. The certified record shows that the bill in equity was brought to cancel this policy, on the ground that it was procured by fraud. It is clear, therefore, that the subject-matter of these two suits is not the “very same” as it is claimed to be in the plea, and as it should be, to make the plea effectual.
True, the present plaintiff might obtain the same relief in the equity suit that he is claiming here, but not under the bill filed by the defendant. Such relief could only be obtained by filing a cross-bill: 2 Dan. Ch. 1550, 4th Am. ed. This the defendant cannot be compelled to do, and he has not seen fit to do it voluntarily.

3 Pa.Co.Ct. at 95. (Emphasis added). But for the type of contract involved, Raessler is virtually indistinguishable from the instant case. In both cases the defendant in a prior action to rescind a contract elected to preserve a permissive counterclaim for breach of the same contract for a separate suit. Here, as there, the lis alibi pendens claim must fail.

As Raessler aptly demonstrates, any application of the common law doctrine of Us alibi pendens to the facts of the instant case is precluded by Pa.R.C.P. 1031, which privileged Davis Cookie to withhold its permissive counterclaim from the prior suit, and to pursue it by separate action in any proper forum of its choice. In this respect, the permissive counterclaim rule must prevail over the common law Us alibi pendens doctrine. Indeed, even at common law the Us alibi pendens doctrine was so restricted.

In McCredy v. Fey, 7 Watts 496 (Pa.1838) Justice Kennedy stated, “the defendant, having a demand against the plaintiff, is not compelled by the act to set if off; he may do so, or he may bring an action against the plaintiff for it, as he pleases; ____” 7 Watts at 500. The following year, Justice Sergeant explained:

Setoffs, however, between opposite claimants, are permissive, not compulsory____ It never was supposed that if one man sue another, the defendant is obliged to set off the debt due to him from the plaintiff, and if he did not choose to do it, his demand could be considered in any sense impaired, or his right to recover it — affected____ The only exception to this rule is where the defendant has been required to set off his claim by legislative enactment; ____ But these special legislative provisions prove the rule of the common law to be different.

Himes v. Barnitz, 8 Watts 39, 43 (Pa.1839). Similarly, in 1939, an ALR commentor observed:

The only logical ground upon which the view might be taken that an action to cancel a contract abates an action to enforce it, or vice versa, would seem to be that the relief sought in the subsequent action should have been prayed for by way of counterclaim in the first, but since, as is indicated in 1 Am.Jur. Abatement and Revival, p. 41, § 37, according to the great weight of authority, the fact that a defendant might have sought relief by a way of counterclaim is no ground for holding that the pendency of an action against him abates a subsequent action in which the same relief is sought by him affirmatively, it would seem that there is little or no reason to hold an action to cancel a contract to be abated by a prior action by the other party to enforce it, or vice versa.

Annotation, Pendency of Suit for Cancellation, Reformation, or Recession of a Contract as Abating Subsequent Action to Enforce It or to Recover Damages for its Breach, and Vice Versa, 118 ALR 1240 (1939). (Emphasis added).

Indeed, our Supreme Court has gone even further in this regard. In Pennsylvania R.R. Co. v. Davenport, 154 Pa. 111, 25 A. 890 (1893), our Supreme Court held that a direct suit could not be separately maintained on a cause of action where the plaintiff in the second suit had previously pled the same cause of action as a defendant in a prior pending proceeding between the same parties by a permissive counterclaim. Two decades later, however, in National Metal Edge Box Co. v. American Metal Edge Box, Co., 246 Pa. 78, 92 A. 42 (1914), our Supreme Court expressly disavowed the prior decision, stating:

We agree with the contention of counsel for appellant, that the claim of “set-off” made in the suit in the Federal Court, cannot in any proper sense be regarded as a bar to the maintenance by the plaintiff of its claim in the present action; the numerous authorities which they cite in support in their argument fully sustain their position. See Filbert v. Hawk, 8 Watts 443; Stroh v. Uhrich, 1 W. & S. 57; Russell v. Miller, 54 Pa. 154; Gilmore v. Reed, 76 Pa. 462; Somerset Colliery Co. v. John, 219 Pa. 380 [68 A. 843] [ (1908) ]; Cochran v. Cutter, 18 Pa.Superior Ct. 282; Snyder v. Lingo, 30 Pa.Superior Ct. 651. Counsel for appellee cite the case of Penna. R.R. Co. v. Davenport, 154 Pa. 111 [25 A. 890] [ (1893) ], as authority for the contrary view. That decision is not to be extended in any way beyond its own specific facts. It cannot be held to overrule the sound principle, supported by abundant authority, that the mere pendency of a suit upon a claim, will not prevent the same claim from being used as a set-off in another action, or vice versa, that the introduction of a claim as a set-off in one action, mil not create a bar to a suit in another court, in a direct action upon the same claim.

92 A. at 44. (Emphasis added). This rule was followed in subsequent cases and apparently remains the law today. See Ott v. DuPlan Silk Corp., 271 Pa. 322, 329, 114 A. 630, 632 (1921); McCowin v. Montgomery, 44 D & C 2d 787, 790-91 (1968); Kaye v. Penn Alum. Constr. Co., 2 D & C 2d 205, 207-08 (1954); see also 2 Standard Pennsylvania Practice 2d § 12.15 at 352-54 (1981 & 1988 supp.) We note that we have no occasion here to determine the continued vitality of this rule or the possible relevance of distinctions between set-offs and counterclaims in this context, as Davis Cookie did not raise the claim asserted in the Clarion County suit as a permissive counterclaim in the Luzerne County suit.

That counterclaims remain entirely permissive in Pennsylvania is quite clear. Recently, this Court explained:

Under Pennsylvania law, counterclaims are permissive and may be set forth in a party’s answer, or may be reserved and set forth as an independent action, at the time, and in the forum, of the defendant’s choosing. See Pa.R.C.P. 1031. In this way, Pennsylvania law prevents parties from manipulating the timing and forum selection of potential suits, by pleading minor claims in a chosen forum to force a greater “counterclaim” at a time and in a forum not of the defendant’s choosing. See Jackson v. Richards 5 & 10, 289 Pa.Super. 445, 433 A.2d 888 (1981); Sobol v. Will Allen Builders Inc., 244 Pa.Super. 486, 368 A.2d 825 (1976).

Bender’s Floor Covering v. Gardner, supra, 387 Pa.Superior Ct. at 535-536, 564 A.2d at 520.

Concededly, the permissive counterclaim rule permits, and perhaps even encourages, wasteful overlap and duplication of court proceedings. The federal courts have long since abandoned the purely permissive counterclaim rule and have adopted a mixed permissive and compulsory counterclaim rule along with discovery, transfer, and removal rules which, by all appearances, adequately protect the legitimate litigation timing and forum selection interests which our purely permissive joinder rule is intended to protect, but without the burden of the duplicious proceedings which inevitably result from our permissive counterclaim rule. See generally, Freer, Avoiding Duplicate Litigation, 50 U.Pitt.L.Rev. 809, 809-51 (1989) (discussing the litigation duplication avoidance effects of the current federal rules, and proposing further measures). Nonetheless, our Supreme Court has not as yet seen fit to alter the rule of purely permissive joinder for counterclaims. Consequently, the dismissal of the Clarion County complaint on the grounds that the cause of action asserted could have been, but was not, raised as a permissive counterclaim in the prior Luzerne County suit cannot be sustained. To do so, would require us to ignore the permissive counterclaim rule we are bound to enforce. Hence, the dismissal order must be reversed.

III. Limitations of this Opinion

Given the complicated procedural history of this case, it seems appropriate to clearly delineate the compulsive force of our decision with regard to future proceedings in the trial courts. Particularly significant are the things we have not decided and the things which we do not preclude.

First, nothing in this opinion should be read to preclude the Luzerne County trial court from reconsidering its interlocutory order denying Davis Cookies’ allowance to amend its answer and new matter under Pa.R.C.P. 1033 to assert its permissive counterclaim. Likewise, nothing here precludes Wasley from entering filed consent to such an amendment. See Pa.R.C.P. 1033. Under Pa.R.C.P. 1033, either allowance of the court or consent filed by the opposing party is sufficient to permit such an amendment of the pleadings at any time during the pendency of the suit.

Second, by reversing the order dismissing the Clarion County action brought by Davis Cookie, we do not restrict the discretion of the trial court to hold the Clarion County action in abeyance pending disposition of the Luzerne County action. See Norristown Automobile Co. v. Hand, supra; Singer v. Dong Sup Cha, supra; Ramco Corp. v. Colt Industries, 73 D & C.2d 647 (Pa.Cm.P.1975). Likewise, if an amendment to assert the counterclaim is permitted in the Luzerne County action, and assuming arguendo that National Metal Edge Box, supra, remains good law and applies in this context, the Clarion County trial court would still have discretionary authority to hold its action in abeyance pending resolution of the Luzerne County action. Id.

If neither action is held in abeyance, the first to reach final judgment may be pled in bar of the other (as may be appropriate based on the disposition), by the modern procedural successor to the common law plea of puis darrein continuance, i.e. by a motion raising additional new matter under Pa.R.C.P. 1033. The common law plea of puis darrien continuance was essentially a plea of collateral estoppel or res judicata by new matter nunc pro tunc based upon events occurring after the pleadings had closed. Woods v. White, 97 Pa. 222 (1881); Krider v. Lafferty, 1 Whar 303, 312 (Pa. 1836); Garvin v. Dawson, 13 Ser. & Raw. 246 (Pa.1825); cf II Bouvier’s Law Dictionary 2769 (Rawle’s Rev.1914). The rigors of the common law puis darrien continuance plea have been ameliorated’ by its successor, Pa.R.C.P. 1033. Under the common law, interjection of a puis darrien continuance plea involved an all-or-nothing gamble, as it was a substitute plea which withdrew all other defenses and confessed liability to the full amount demanded by the opposing party’s pleadings if the bar was found to be improper or ineffectual. See Woods v. White, supra. Under Pa.R.C.P. 1033, an amendment to assert a collateral estoppel or res judicata claim in new matter based on events occurring after the pleadings are joined does not require a waiver of other claims; rather, it requires merely leave of court, or consent of the opposing party. See Pa.R.C.P. 1033.

Conclusion

The appeal from the Luzerne County trial court order denying leave to amend is Quashed. The order of the Clarion County trial court granting preliminary objections and dismissing the complaint is Reversed, the complaint is Reinstated, and the case is Remanded for further proceedings consistent with this Opinion. Jurisdiction is Relinquished.

      . Although the plea in abatement alleging pendency of a prior action as a bar to suit is often referred to as simply lis pendens (a pending suit), the phrases lis alibi pendens (a suit pending elsewhere) and auter action pendant (another action pending) are more historically appropriate. Lis pendens in ancient usage referred specifically to the power which a court had over property in dispute during the pendency of a suit and the inability of parties to affect title to such property during the pendency of an action. See Dorsch v. Jenkins, 243 Pa.Super. 300, 365 A.2d 861 (1976). Lis alibi pendens and auter action pendant, on the other hand, referred specifically to the plea in abatement based upon the pendency of a prior action in another forum. See Black’s Law Dictionary, at 840 (5th Ed. 1979); 1 Bouvier’s Law Dictionary, at 291-92 (Rawle rev. 1914) (expanded definition with case citations for auter action pendant); 2 Bouvier’s Law Dictionary, at 2032-34 (Rawle rev. 1914) (same, for lis pendens and lis alibi pendens ). We shall refer to the plea as one of lis alibi pendens throughout, in accordance with the historical distinction noted.

      . It should be noted, however, that these cases address only the situation where a party initiates the separate suits as plaintiff in both identical cases, and not a situation like that here, where the defendant in the first suit is the plaintiff in the second. As it will be seen, infra, this difference is material.

      . Arguably, analysis of the “same cause of action” unity is complicated by Pa.R.C.P. 1001. In 1983, our Supreme Court promulgated the current version of Rule 1001 and thereby abolished the procedural distinctions between assumpsit and tresspass (and to a lesser extent other types of actions) which existed under the highly technical common law pleading system. The new rule provided that any action formerly denominated as an assumpsit or trespass action should be denominated simply as a "civil action,” and that all other forms of • action should be denominated as "civil action — [type of action]." While these changes harmonized procedures and further blurred and eroded the intricate and arcane distinctions of the common law, it is clear that the rule in no way altered the substantive differences or individuality of separate causes of action arising in what was formerly known as assumpsit, trespass, and equity.
      While separate causes of action for breach of contract and physical assault both now may be denominated as “civil actions,” may he plead together in one complaint, and may be subject to the same procedural rules, the separate causes of action have not thereby become one cause of action. The substantive rules of contract and tort were not merged by the promulgation of Pa.R.C.P. 1001. If one were fired improperly and assaulted by one’s employer at the same time, two separate civil actions, with separate rights asserted and separate relief requested would nevertheless exist and not one hybrid civil action. Hence, the mere fact that different causes of action would be designated by the same term (i.e. civil action), would have to be brought in a single suit (Pa.R.C.P. 1020(d)(l & 4) and would be regulated by the same procedures does not in any way effect the continued validity of common law distinctions between types of "causes of action" in determining a plea in abatement on lis alibi pendens grounds.


source: Caselaw Access Project

author:
DEL SOLE, Judge:
      JOHNSON, Judge,

license: Public Domain

text:
    566 A.2d 878
    June Ellen CYRAN, Appellant, v. John M. CYRAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1989.
    Filed Nov. 27, 1989.

      I. Leonard Hoffman, Bensalem, for appellant.
    Kevin T. Keane, Newton, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from an order directing that the child in this custody dispute, Scott Cyran, be in the primary physical custody of his father, Mr. John M. Cyran, that the mother, Mrs. June Ellen Cyran, relinquish primary custody, and that Scott reside with his mother three weekends out of every month. This order further states that after the summer of 1989, Scott will reside with Mrs. Cyran for the months of July and August, and with his father every other weekend during those two months. Holidays will be spent alternatively with Mother or Father. Mrs. Cyran appeals from this order citing hearing court error and abuse of discretion. For the reasons that follow, we reverse.

A child custody litigant has a due process right to in-court examination of the author of reports adverse to the litigant. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), citing, Wood v. Tucker, 231 Pa.Super. 461, 332 A.2d 191 (1974). When a litigant is unlawfully deprived of the right to cross-examine the author of such reports, and the court relies on them, then reversal of the hearing court’s decision is mandated. Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979).

In the instant case, the expert report in question was one prepared by Dr. Nicholas Winter of the Court Conciliation and Evaluation Service. The trial court, in its Memorandum Opinion, liberally adopted facts, recommendations, and conelusions of the report. This is underlined by the trial court’s statement that “it was the testimony of his two teachers and the report of Dr. Nicholas Winter which caused this Court to enter the Order directing Scott to live with his father during the school week.” {Memorandum Opinion at 3).

The first reference to the report in the record occurs when The Honorable Michael J. Kane, stated (N.T. at 139, March 20, 1989),

Court is adjourned. We will attach, before we a [sic] adjourn, to the record of today’s proceedings as Court Exhibit One the report of Mr. Nicholas Winter of the Court Conciliation and Evaluation Service.

There had been no reference to this report prior to this statement, and Dr. Winter had not been cross-examined on the contents of the report during the proceedings.

Although Mr. Cyran argues that this issue was not preserved for appeal, and although it is well settled that a party can waive an issue in a child custody case, see, Robinson, supra., 505 Pa. at 233-34, 478 A.2d 800; Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988), here there was no waiver because Mrs. Cyran did not have the opportunity to object to the admission of Dr. Winter’s report during the proceedings. The report was merely appended to the court’s oral order following the hearing.

Expert reports may not be used in child custody contests unless the author of the report testifies and is subject to cross-examination by the party adversely affected, or unless the parties consent. Here, there was no opportunity for the parties to consent or object to the use of this report, nor did the author testify. Further, the court materially relied on this report to Appellant’s detriment. We will therefore reverse and remand this case to the trial court. Upon remand, if the trial court chooses to rely on Dr. Winter’s report, then he must be called to testify and be subject to cross-examination.

Further, the court should supplement the record with a transcript of Scott’s in camera testimony. When a hearing judge interviews a child in a custody case, the testimony must be transcribed and made a part of the record. Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988). Moreover, apart from the transcription of the interview, counsel must be present and counsel must have the opportunity to question the child. See, Gerald G. Junior v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981).

We also note that the court in its Memorandum Opinion has failed to consider that its order results in the separation of siblings; Scott’s sister will remain with his mother during the school year. It has always been a a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985), citing inter alia, Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). In defining the phrase “compelling reasons” this court has said that the evidence must indicate that it was “necessary” to separate the children, and the evidence was “forceful” in this regard. Id., 342 Pa.Superior Ct. at 56, 492 A.2d 59.

Therefore, on remand, this doctrine or strong legal policy, variously called the doctrine of “family unity” or “whole family doctrine,” bears serious consideration. The hearing court must explain why there are compelling reasons to separate the siblings and whether the evidence was forceful enough to convince or overcome this doctrine.

We need not address Mrs. Cyran’s claim that the hearing court erred in its application of the burden of proof or that the court abused its discretion by ordering that Mr. Cyran be given primary custody of Scott because we reverse on other grounds.

The hearing court’s order is reversed and remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I respectfully dissent. The issue of whether an evaluation prepared by Dr. Nicholas Winter of the Court Conciliation and Evaluation Service was improperly admitted into evidence is waived and therefore does not provide a basis for reversal.

As the majority recognizes this evaluation was admitted into evidence in the following manner:

Court is adjourned. We will attach, before we a [sic] adjourn, to the record of today’s proceedings as Court Exhibit One the report of Mr. Nicholas Winter of the Court Conciliation and Evaluation Service.

N.T. at 139, March 20, 1989. No objection to the introduction of this evaluation appears of record. Although there had been no prior reference to this evaluation at trial, Mother knew of its existence, since the evaluation was made at the parties’ request. Opinion dated April 20, 1989 at p. 2. In addition, Mother concedes that the evaluation was made available to her counsel for inspection in judicial chambers. Appellant’s brief at p. 13 n. 2. Thus, the evaluation and its contents were no surprise, and through the evaluation, each counsel was apprised of Dr. Winter’s willingness to testify as to the matters contained in the evaluation.

Reversal is not mandated where the court considers an evaluation without having the benefit of the author’s cross-examination. Rather, it may be warranted. See Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 234, 478 A.2d 800, 805 (1984) citing Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979). This issue is waived and reversal is not appropriate where the issue has not been preserved at trial, Schwarcz v. Schwarcz, 378 Pa.Super. 170, 178, n. 10, 548 A.2d 556, 560-561, n. 10 (1988) citing Commonwealth ex rel. Robinson v. Robinson, supra; Ellingsen v. Magsamen, 337 Pa.Super. 14, 20, n. 3, 486 A.2d 456, 459, n. 3 (1984) or on appeal, Commonwealth ex rel. Robinson v. Robinson, supra.

It is simply not true that Mother had no opportunity to object- durjng the proceedings where Mother knew of the evaluation, counsel was aware of its contents, and the court explicitly stated that before adjournment, the court would attach the evaluation as Court Exhibit 1. At that point, the fact that the author of the report was not produced for cross-examination could have been brought to the court’s attention and the proceedings continued. Remanding this case now will lead to the same type of vexatious litigation against which Robinson, supra cautions this court. This is particularly so since the trial court opinion strongly suggests that it would have reached the same conclusion in the absence of the evaluation, and the reasons which the trial court put on the record before entering its order make no mention of the evaluation.

I find Mother’s remaining issues frivolous. First, with regard to Mother’s complaint that the in camera interview of the parties’ son was not transcribed, I observe that neither party has alleged that their counsel was not permitted to be present at the in camera interview. In fact, Mother’s brief refers to the son’s interview as though she has actual knowledge of what transpired during those proceedings, thereby suggesting that counsel was indeed present. While it is true that when the trial court interviews a child in a custody case it must have the proceedings transcribed, the purpose behind this requirement is to assure that this court is provided with a complete record on appeal. Gerald G. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981). Here, our review has not been hindered by the failure of the trial court to transcribe the proceedings. Mother alleges no prejudice from the court’s failure to transcribe the son’s interview other than her inability to substantiate her claim that the son made a statement contrary to the representations of Father. Taking this allegation as true, and also recognizing that the son told the court that he wished to remain with his mother, there is still no basis to reverse the trial court.

Second, the findings of fact and conclusions of law made by the trial court with regard to the son’s academic performance, discipline, nutrition, and juggling between homes are supported by the record. The record does not demonstrate that the trial court favored either party. In addition, the trial court stated that it considered the son’s preference to stay with his mother but even considering this preference found that it was in the son’s best interests to live with his father. As for the separation of the two children, there are ample reasons of record why the arrangement set forth by the court is in the son’s best interests. The failure of the court to mention the general objective of this Commonwealth not to separate siblings does not, of itself, warrant reversal. M.D. v. B.D., 336 Pa.Super. 298, 305, 485 A.2d 813, 817 (1984). Moreover, it is clear that the trial court took into consideration this objective in framing its order. The trial court essentially adopted the recommendation of Dr. Winter that visitation be arranged to allow the children to spend as much time together as possible.

Third, I find no statement by the trial court erroneously articulating the burden of proof in this case. In fact, Mother’s assertions to this end simply suggest that if the findings of fact and conclusions of law were erroneous, then the defendant has failed to meet his burden to prove by a preponderance of the evidence that awarding father custody is in the son’s best interests. I have already concluded that the findings and the conclusions of the trial court were not in error. I also find that the evidence was sufficient to show that Father is better able to give his son the guidance and discipline that he requires.

The trial court’s opinion demonstrates that it thoroughly considered the evidence before it. Giving due weight to the many factors to be taken into consideration when changing a custody arrangement, the court decided that the son’s best interests required residence with his father. I find nothing of record to suggest that the court committed a gross abuse of discretion. Accordingly, I cannot join the majority. The order of the trial court should be affirmed.


author: OLSZEWSKI, Judge:

text:
    566 A.2d 882
    COMMONWEALTH of Pennsylvania, Appellant, v. Howard G. KRAMER. COMMONWEALTH of Pennsylvania, v. Howard G. KRAMER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1989.
    Filed Nov. 28, 1989.

      Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellant (at 3371) and appellee (at 3528).
    Marc R. Steinberg, Lansdale, for appellant (at 3528) and appellee (at 3371).
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Howard Kramer was found guilty of rape, indecent assault, and simple assault. He filed post-trial motions in arrest of judgment and for new trial. The motion in arrest of judgment was denied, but the motion for new trial was granted on the ground that the cumulative effect of three of the asserted errors deprived the defendant of a fair and impartial trial. The trial court rejected Kramer’s other arguments. The Commonwealth appeals the grant of new trial. Kramer cross-appeals the trial court’s rejection of his other arguments. We agree with the decision of the trial court; accordingly, we affirm the judgment and deny the cross-appeal.

1. During trial of this case, several irregularities occurred. None of these incidents were so prejudicial that they could not be cured by appropriate instructions to the jury. Nevertheless, the trial court found that the cumulative effect of these errors prejudiced the jury against the defendant, thereby depriving him of a fair and impartial trial. The trial court granted a new trial on this ground.

A trial court has broad discretion in deciding whether to grant a motion for new trial, and the court’s decision will not be disturbed unless the court abuses its discretion. Commonwealth v. Bowermaster, 297 Pa.Super. 444, 444 A.2d 115 (1982). In this case, the trial court’s decision to grant a new trial was within its discretion.

The trial court noticed three significant events: an expert witness’s statement regarding the victim’s credibility, the victim’s unsolicited remarks which suggested prior sexual activity between the victim and the defendant, and a prosecutor’s question which violated the defendant’s fifth amendment rights. The trial court denied motions for mistrial at each instance, finding that cautionary instructions would cure the error. Upon considering the defendant’s motion for new trial, the court found that the cumulative effect of these three errors deprived the defendant of a fair and impartial trial.

The issue of cumulative effect of errors has not been addressed specifically by this Court. In the context of prosecutorial misconduct, this Court has found that repeated improper remarks may constitute error, even if isolated remarks do not. See, e.g., Commonwealth v. Hickman, 319 Pa.Super. 261, 466 A.2d 148 (1983); Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982). We see no reason not to apply this rule to other types of error.

Where, as here, the trial court determines that the cumulative effect of errors during trial deprived the defendant of a fair and impartial trial, the trial court is within its discretion in ordering a new trial. The trial court was in the best position to determine whether the trial was fair. We are not inclined to dispute the trial court’s finding on appeal. Accordingly, we affirm the decision of the trial court.

2. Appellee cross-appeals, asserting that the charges against him should have been dismissed pursuant to Pa.R.Crim.P. 1100. The criminal complaint in this case was filed on December 21, 1987. At that time, Rule 1100 required that trial commence within 180 days. Effective December 31, 1987, Rule 1100 was amended to allow 365 days. Trial began July 11, 1988: after the 180-day period expired, but well within the 365-day period. Appellee asserts that this Court should apply the rule which was in effect when the complaint was filed. We disagree.

This Court has already decided this issue. Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989); Commonwealth v. Shaffer, 387 Pa.Super. 234, 563 A.2d 1270 (1989). In Palmer, this Court analyzed the language of Rule 1100, applying the appropriate rules of statutory construction, and concluded that the longer period applies if the 180-day period had not expired before the effective date of the amendment. Id. Compare with Commonwealth v. Welsh, 387 Pa.Super. 388, 564 A.2d 233 (1989) (judgment of sentence vacated because 180-day period expired before the effective date of the amendment). Accordingly, appellee’s Rule 1100 argument has no merit.

3. Appellee next argues that the trial court erred in denying his motion in limine to suppress evidence of a prior sexual incident between appellee and the victim. We find no error.

In general, evidence of prior wrongful acts is not admissible in a criminal trial because such evidence is highly prejudicial. Commonwealth v. Bryant, 515 Pa. 473, 476, 530 A.2d 83, 85 (1987). Nevertheless, this state has long recognized a limited exception for sexual offenses. Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895); Commonwealth v. Rodriguez, 343 Pa.Super. 486, 493, 495 A.2d 569, 573 (1985). Evidence of a defendant’s prior sexual relations with the victim is admissible to show passion or propensity for illicit sexual relations with the victim. Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980). This exception is similar to the rule in assault, permitting evidence of prior hostility toward the victim. Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979) (Spaeth, J., concurring).

This exception is extremely limited. It applies only when the prior act involved the same victim, cf. Commonwealth v. Knapp, 374 Pa.Super. 160, 542 A.2d 546, 556-57 (1988), and only when the two acts are sufficiently connected to suggest a continuing series of conduct, Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895); Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101, 104 (1985).

Appellee correctly notes that this rule has only been applied in cases involving incest. Nevertheless, the rationale of this rule applies equally well, regardless of whether the defendant and victim are related. See Commonwealth v. Rodriguez, 343 Pa.Super. 486, 493 n. 3, 495 A.2d 569, 573 n. 3 (1985).

The evidence in question related to sexual acts between the appellee and the victim. These acts occurred four days before the acts charged. Appellee claims that “each and every detail about the assault on November 6, 1987, was exactly the same as the assault on November 10 [the assault charged].” This satisfies the requirements of the sexual acts exception to the rule of prior wrongful acts. Accordingly, the trial court did not err by admitting the evidence.

4. Appellee's remaining arguments have no merit and will be discussed only briefly. Appellee asserts errors in: (a) failure to quash the return of the transcript and informations; (b) failure to strike the jury panel; (c) sequestering appellee’s wife; (d) denying mistrial for prosecutorial conduct; (e) failure to read appellee’s suggested charge. He further asserts generally that the verdict was contrary to the weight of the evidence and the law.

(a) Appellee asserts that his arrest warrant was not supported by probable cause because of a typographical error in the date of the crime in the second paragraph of the probable cause affidavit. The date was correctly typed in the first paragraph and on the criminal complaint. The typographical error in the second paragraph of the affidavit does not amount to a substantive defect. In addition, this minor defect concerning a matter never at issue in the proceedings cannot be construed as prejudicial. Furthermore, since the correct date was included on the criminal complaint, any defect in the affidavit was “corrected.”

(b) Appellee asserts that the trial court erred in failing to strike the entire jury panel due to remarks by one venireman. The prospective juror stated that he had read about the case and “it would raise a doubt in my mind if everything that could be produced as evidence hasn’t been produced.” N.T. 54, 55. The venireman said nothing about the content of the articles he read or any opinions he may have formed. Under the circumstances, we cannot find that the trial court abused its discretion by refusing to strike the entire panel.

(c) Appellee also asserts that the trial court erred in sequestering his wife, a witness for both the prosecution and the defense. The decision to order sequestration is within the sound discretion of the trial court. Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147 (1982). Appellee’s wife testified on matters which another witness described; thus, sequestration was appropriate to prevent her from adjusting her testimony to match that of other witnesses. The trial court did not abuse its discretion.

(d) Appellee further asserts that a mistrial should have been granted because of prosecutorial misconduct in closing arguments. There is no record of the closing arguments; however, the trial court and both of the parties agree that the prosecutor discussed “motive to lie.” Appellee claims that “to say the Defendant had a ‘motive to lie’ is the same as saying the ‘Defendant is a liar and not to be believed.’ ” We disagree. A defendant’s motives are inferences which may be derived from evidence, and may be discussed in closing arguments. See, e.g., Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987) (prosecutor may argue inferences which relate to the evidence). Therefore, the prosecutor’s comments were appropriate, and the trial court committed no error.

(e) Appellee claims that the trial court erred in failing to read requested charge number 8. When reviewing a charge, the only issue is whether the area of the law is adequately, accurately, and clearly presented to the jury. Commonwealth v. Porter, 300 Pa.Super. 260, 446 A.2d 605 (1982). Instructions must be considered as a whole; error cannot be based on isolated portions. Commonwealth v. Kelly, 319 Pa.Super. 204, 465 A.2d 1301 (1983). The requested charge instructs that, where two inconsistent inferences may be drawn from the same evidence, the jury must adopt the inference which points to innocence. We have reviewed the trial court’s charge thoroughly and find that the instructions on reasonable doubt, burden of proof, and circumstantial evidence were all adequate and covered substantially the same ground as the requested charge. The trial court did not err in refusing to charge the additional instruction requested by the defendant.

(f) Finally, appellee contends that the verdict was against the weight of the evidence and the law. Appellee concedes that the testimony of the victim was sufficient to support a conviction. He contends only that the victim was not credible. The issue of credibility is reserved to the jury, and the jury’s findings will not be disturbed on appeal unless they are manifestly erroneous. Commonwealth v. Daniels, 281 Pa.Super. 334, 422 A.2d 196 (1980). We have reviewed the victim’s testimony and do not find it entirely incredible. Furthermore, we find no indication that the jury’s verdict was against the law. Accordingly, we must affirm the trial court’s conclusion on this issue.

Judgment affirmed. Cross-appeal denied.


author: JOHNSON, Judge.

text:
    566 A.2d 885
    Francis J. CATANIA v. HANOVER INSURANCE CO. and Charles A. Harad. Appeal of Charles A. HARAD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 18, 1989.
    Filed Nov. 28, 1989.

      H. Robert Fiebach, Philadelphia, for appellant.
    Garland D. Cherry, Sr., Media, for Catania, appellee.
    Before BECK, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge.

Charles A. Harad appeals from an Order denying his Petition for Leave to Amend Answer and New Matter. On this appeal, we address whether a public figure must prove actual malice to recover under the Dragonetti Act, 42 Pa. C.S. §§ 8351-8354, for alleged reputational harm based upon false statements made in an Answer, New Matter and Cross-complaint filed in the court of common pleas. Finding that actual malice is not required, we affirm the order of the court below denying Harad’s petition.

This matter arises out of two prior actions commenced by Francis J. Catania, President Judge of the Delaware County Court of Common Pleas, against the Hanover Insurance Company for damage to his automobile. The first action (Catania I) involved a claim by Catania under a Hanover insurance policy to recover the cost of repairing damage to his automobile. While Catania I was pending, Catania commenced a second action against Hanover (Catania II) wherein he sought compensatory, punitive and treble damages, together with counsel fees and costs against Hanover for alleged fraud and violations of the Unfair Insurance Practices Act as a result of Hanover’s refusal to pay the insurance claim which was the subject of litigation in Catania I.

Hanover filed Preliminary Objections to the complaint in Catania II, alleging that plaintiff failed to state a claim on which relief could be granted. The court granted Hanover’s Preliminary Objections in part and dismissed plaintiff’s claim under the Unfair Insurance Practices Act. Hanover, who was represented at the time by appellant Harad, then filed an Answer, New Matter and Counterclaim to the remaining allegations in Catania II. In this pleading, Hanover alleged that Catania defrauded Hanover to obtain lower insurance premiums by insuring his automobile under a fleet policy procured by a business operated by Catania’s brother.

On May 22, 1985, Harad withdrew his appearance as counsel of record for Hanover in Catania II, and new counsel entered an appearance on behalf of Hanover. On February 13, 1986, the court granted Hanover’s uncontested petition to discontinue the counterclaim, without prejudice, and on June 23, 1986, the court granted Hanover’s uncontested petition to amend its Answer and New Matter. On June 27, 1986, Hanover filed an amended Answer and New Matter in Catania II, withdrawing the fraud allegations previously asserted.

Judge Catania filed the instant action (Catania III) under 42 Pa.C.S. §§ 8351-8354 alleging that Hanover and its attorney, Harad, committed the tort of wrongful use of civil proceedings as a result of the New Matter and Counterclaim filed in Catania II. Thereafter, Catania and Hanover entered into a settlement of Catania II and III. Catania II was marked “settled, discontinued and ended” and this action was marked “settled, discontinued and ended” as to Hanover. The lower court, by Order dated February 25, 1988, later struck the discontinuance entered in this action as to Hanover and ordered that Hanover participate at trial so that its status as a joint tortfeasor may be determined.

On June 17, 1987, following the disposition of Preliminary Objections to the complaint, Harad filed an Answer and New Matter to the complaint. On July 22, 1987, plaintiff filed a verified reply to Harad’s New Matter. Thereafter on March 16,1988, Harad filed a petition for leave to amend his Answer and New Matter to raise defenses based upon the standard of proof set forth in the United States Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). On October 18, 1988, the Honorable Charles B. Smith entered an Order with an accompanying Opinion denying Harad’s petition. Harad took appeal to this court and the lower court filed a supplementary Opinion in further support of its October 18, 1988 Order.

On appeal, Harad asks that we consider whether:

I. THE DEFENDANT SHOULD BE PERMITTED LEAVE TO FILE AN AMENDED ANSWER AND NEW MATTER TO RAISE AN ADDITIONAL AFFIRMATIVE DEFENSE, IN VIEW OF RECENT FIRST AMENDMENT JURISPRUDENCE, THAT PLAINTIFF, A PUBLIC FIGURE AND PUBLIC OFFICIAL, MUST PROVE THAT DEFENDANT ACTED WITH “ACTUAL MALICE,” IE., WITH KNOWLEDGE THAT THE STATEMENTS MADE WERE FALSE OR WITH RECKLESS DISREGARD AS TO WHETHER OR NOT THEY WERE TRUE, IN ORDER TO RECOVER DAMAGES UNDER 42 PA.C.S. § 8351, ET SEQ. FOR ALLEGED REPUTATIONAL HARM BASED UPON THE CONTENT OF A PUBLICATION.
II. THE PLAINTIFF DEMONSTRATED THAT THE PROPOSED AMENDMENT WAS AGAINST A POSITIVE RULE OF LAW.
III. THE PLAINTIFF DEMONSTRATED SUFFICIENT PREJUDICE TO DISALLOW THE PROPOSED AMENDMENT.

In essence, we are asked to determine whether the First Amendment of the United States Constitution protecting freedom of speech dictates that Judge Catania prove that Harad acted with actual malice in establishing a prima facie violation of the Dragonetti Act.

The statutory elements of wrongful initiation of a civil proceeding are set forth at 42 Pa.C.S. 8351:

(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. —The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

42 Pa.C.S. § 8351. [Emphasis added]. Thus, the act itself sets forth all of the elements. Harad contends that “Judge Catania seeks to recover damages under the Dragonetti Act for reputational harm and emotional distress resulting from the falsity of statements made by Mr. Harad.” He argues that First Amendment concerns are implicated in this case because the gravamen of Catania’s complaint is that Harad made false allegations on behalf of his client Hanover.

To the contrary, the gravamen of Catania’s complaint is that he has been forced to defend against a wrongfully initiated civil action for which he seeks damages. In order to prove this tort, Catania must show that the action should not have been the subject of litigation and in doing so he may offer evidence that there existed no factual basis for the action. The harm here is not caused by the false allegations, themselves, but rather the initiation of a suit premised upon these false allegations. This in itself distinguishes an action upon the Dragonetti Act from the torts of defamation and intentional infliction of emotional distress wherein the harm alleged is founded upon the injurious speech itself.

Harad, disregarding this distinction, nevertheless argues that the heightened standard of actual malice should prevail here because 42 Pa.C.S. 8353 provides recovery for harm to reputation by any defamatory matter alleged as the basis of the proceedings. Section 8353 is set forth as follows:

(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings.
(2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings.
(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.
(4) Any specific pecuniary loss that has resulted from the proceedings.
(5) Any emotional distress that is caused by the proceedings.
(6) Punitive damages according to law in appropriate cases.

[Emphasis added]. While we recognize that the Dragonetti Act does permit recovery for damage to reputation and emotional distress, this fact alone does not transform this tort, the purpose of which is to discourage baseless civil suits, into an action protecting against false statements.

Even if this were a suit to recover damages directly resulting from the publication of false statements, we find no constitutional authority which would dictate the result that Harad suggests. Harad, relying principally upon New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Hustler Magazine v. Falwell, supra, argues that first amendment jurisprudence establishes the rule that every time a public figure attempts to recover for damage to reputation or emotional distress as the result of false statements against him, the public figure must show actual malice. We must disagree. These cases are inapposite under the circumstances presented.

New York Times v. Sullivan, supra, and Hustler Magazine v. Falwell, supra, required a standard of actual malice in a defamation action and in an intentional infliction of emotional distress action, respectively, where a public figure plaintiff sought relief for damages directly resulting from the publication of arguably false statements. In those cases, the United States Supreme Court established the culpability standard of actual malice in order to provide breathing room for first amendment protections. These cases reasoned that even though false statements are of little constitutional value, they are nevertheless inevitable in the free discussion of ideas. Therefore a rule imposing strict liability on a publisher would have a chilling effect upon speech worthy of constitutional protection.

Clearly, the case before us is distinguishable. The speech here at issue did not occur in the marketplace of ideas, but in a civil proceeding. A civil proceeding is not a forum for public debate but a precise and methodical mechanism designed for the orderly resolution of disputes between specific parties. To extend the actual malice standard here would not advance the rationale of New York Times v. Sullivan, supra, and Hustler Magazine v. Falwell, supra that first amendment protections must be provided with breathing room so that robust political debate may proceed unencumbered.

The legislature in promulgating this statutory action of wrongful initiation of civil proceedings did not intend that a plaintiff prove that the defendant acted with actual malice in the initiation of his civil suit. Finding that the statute sets forth all of the elements necessary to prove the tort of wrongful initiation of civil proceedings, and finding that there is no basis in law for requiring a different standard, we conclude that the Dragonetti Act does not require a prima facie showing of actual malice.

We recognize the Commonwealth’s policy of permitting liberal amendment of pleadings. Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 313, 484 A.2d 148, 150 (1984). Nevertheless, such a policy does not extend to the amendment of pleadings for the purpose of asserting a defense not provided by law. Accordingly, we affirm the order of the court below denying Harad’s petition to amend.

Order affirmed.

BECK, J., concurs in the result.


author: DEL SOLE, Judge:

text:
    566 A.2d 889
    John and Jane DOE, Appellants, v. Pamela T. DYER-GOODE, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1989.
    Filed Nov. 29, 1989.

      Julie Shapiro, Philadelphia, for appellants.
    James L. Griffith, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellee’s preliminary objections and dismissing Appellants’ complaint with prejudice. Notwithstanding Appellants’ plea to amend their complaint to claim damages, we conclude that the trial court’s order must be affirmed because no viable cause of action is set forth in the Complaint.

In considering preliminary objections in the nature of a demurrer, the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought; if such is the case, the demurrer may not be sustained, but if the complaint fails to set forth a cause of action, preliminary objections in the nature of a demurrer are properly sustained. Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982).

The Complaint at issue alleges that Appellants sought the services of Appellee-doctor in regard to a pre-marital blood test. Although Appellant, John Doe, did consent to have his blood withdrawn, he did not consent to an “AIDS test.” Nevertheless, he was informed by the doctor that he had tested positive for AIDS. John Doe subsequently retested negative for exposure to the AIDS virus. Based upon this set of submitted facts the Appellants sought to recover by setting forth six separate causes of action.

In Count I a claim is made by John Doe for invasion of privacy. Appellants contend that John Doe’s privacy was violated in two instances. The first occurred when the Appellee doctor “interfered with and violated” the plaintiff’s bodily integrity by undertaking an examination of plaintiff’s HIV status without plaintiff’s knowledge or consent. It is also alleged that the doctor’s creation and maintenance of records which contained these results constituted a further violation of the right to privacy.

“An action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4) publicity placing the person in a false light.” Hams by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 152, 483 A.2d 1377, 1383 (1984). As noted by the trial court, the Appellants’ claims do not fall under the last two sections since it is not alleged that the test results were at any time publicized. Creating and maintaining a person’s health records cannot be equated with publication. The second section which deals with those who appropriate a person’s name or likeness is also inapplicable under the facts alleged. The remaining section which speaks to the unreasonable intrusion upon the seclusion of another is referred to in Section 652B of the Restatement (Second) of Torts which states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The “invasion of bodily integrity” cited by Appellants does not come within the ambit of this tort. Appellant, John Doe, consented to the extraction of his blood for testing. In Harris, Id,., the court stated that “[t]he defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Because John Doe relinquished his blood sample to the doctor, this sample was no longer held in “private seclusion” by Mr. Doe. Thus the fact that an unauthorized test was performed on this sample cannot establish a claim for invasion of privacy.

Appellants next contend that the facts of this case are sufficient, if proven, to constitute a battery based upon lack of informed consent.

In this Commonwealth individuals who are mentally and physically able to discuss their medical condition and who are not in an emergency situation, must give their informed consent as a prerequisite to a surgical operation by a physician. Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 649 (1971). To perform an operation without such informed consent is considered a technical assault, making the physician liable for any injuries resulting from the invasion, regardless of whether the treatment was negligently administered. Id. In determining whether a patient’s consent was indeed “informed,” one must consider whether the physician disclosed all the facts, risks and alternatives which a reasonable person would deem significant in making a decision to undergo a recommended procedure. Boyer v. Smith, 345 Pa.Super. 66, 70 n. 2, 497 A.2d 646, 648 n. 2 (1985).

In dismissing this count of the complaint the trial court held that a cause of action based upon lack of informed consent could not stand in this case because prior caselaw has only extended this doctrine to surgical or operative procedures. However, even if we were to conclude that the insertion of a needle under the skin falls into the category of a surgical or operative procedure, Appellants’ claim cannot stand. There is no allegation in this case that John Doe was not informed of the risks associated with the procedure he was about to undergo — the withdrawal of a blood sample by extraction through a needle. The intrusive conduct was the prick of the skin by a needle. The blood sample which was withdrawn and later tested is simply a by-product of the medical procedure, much like a tissue sample taken from a patient in a biopsy procedure. Appellant gave his consent to have his blood withdrawn for a testing purpose. The fact that an additional test was performed on this blood sample cannot constitute grounds for an action in battery.

It is also alleged that the doctor’s actions were sufficient to make out a claim for breach of contract and breach of a duty to deal in good faith. Appellants allege in their Complaint that John Doe accepted professional services from the doctor on the “understanding” that he was receiving only such services as he had requested. When a HIV antibody test was performed which was not requested or authorized by John Doe, this agreement was breached.

An express agreement is not alleged by the facts submitted. Appellants do not contend that they reached an agreement with their doctor only to perform certain tests and to exclude all others. The complaint simply alleges that John Doe understood that he would only be receiving certain services. This statement alone is insufficient to support a conclusion that an express or implied contract existed.

An implied duty to deal in good faith was also alleged to have been breached by the Appellee-doctor. Appellee argues that a cause of action based upon an implied duty to deal in good faith between a physician and patient is not recognized in this Commonwealth. Indeed Appellants cannot point to any caselaw to support their claim. Moreover, although Appellants contend that John Doe did not consent to an HIV test, the Complaint does not allege facts which would show that the performance of this test violated the doctor’s obligation to act in her patient’s best interest.

The fifth cause of action set forth in the Complaint is based in negligence. Contrary to Appellants’ contention the Appellee did move to have this count stricken based upon her contention that Appellants’ allegations were made without any facts to support a negligence claim. The trial court then ruled that count five of the Complaint should be stricken because the Appellants had failed to set forth any professional duty which the doctor breached by testing John Doe for AIDS, nor any injury resulting therefrom. Paragraph 37 of the Complaint referring to the negligence claim states:

Defendant was negligent and/or grossly negligent in her actions, including, but not limited to, testing plaintiff without his knowledge or consent and for no justifiable medical reason, in processing and handling test result information with the result that plaintiffs were wrongly informed that he had tested positive for AIDS, and in informing plaintiffs of that result without proper or adequate counselling.

Allegations in a negligence action must aver that a given standard of care was called for and that such standard was breached or that defendant acted less reasonably than a reasonable person would act. The Complaint must also allege that such negligence resulted in an injury. Department of Transportation v. Bethlehem Steel Corp., 28 Pa.Commw.Ct. 214, 368 A.2d 888 (1977). The instant complaint fails to meet these requirements. Appellants have not included in their Complaint any duty which was violated. The Complaint does not identify any duty to restrain from having an HIV blood test performed on a blood sample when consent has not been obtained, nor will we impose such a duty. Appellants’ complaint also refers to the doctor’s actions in which the test results were communicated to John Doe without advise about counseling, yet Appellants are unable to establish any duty requiring a physician to notify a patient of counselling options when the physician is reporting test results. Further, although the Complaint does allege that Appellants were wrongly informed that John Doe tested positive for AIDS, the Complaint does not allege that the Appellee herself performed the test. Although the test results were ultimately found to be inaccurate, the doctor cannot be faulted for reporting to her patient the results which she obtained. In fact, failure to promptly report this result which suggested a serious illness may have become the basis of a negligence claim.

The final cause of action asserted by Appellants is for intentional infliction of emotional distress. Appellants base this cause of action on the doctor’s conduct in conveying to John Doe the information that he tested positive for AIDS. In considering and dismissing the cause of action from Appellants’ Complaint the trial court found that Appellants failed to plead conduct which is extreme and outrageous and beyond all bounds of decency such that the action would be characterized as atrocious and utterly intolerable in a civilized society. See Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981). We agree with the trial court’s assessment of Appellants’ claim and find, apart from Appellee’s assertion that this cause of action is not specifically recognized in Pennsylvania, that Appellants’ Complaint in this regard cannot stand because the facts presented do not, as a matter of law, show extreme and outrageous conduct. Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988).

Order affirmed.


author: CERCONE, Judge:

text:
    566 A.2d 893
    COMMONWEALTH of Pennsylvania v. Bryant JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 18, 1989.
    Filed Nov. 29, 1989.

      Owen R. Silverstein, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before ROWLEY, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a modified judgment of sentence. On August 6, 1985, appellant Bryant Jones entered an open guilty plea to two counts of rape, two counts of criminal conspiracy and one count of possession of an instrument of crime. Appellant was sentenced to serve two consecutive terms of imprisonment of four (4) to eight (8) years on each rape count and concurrent sentences on the remaining counts. Subsequently, appellant’s petition for modification of sentence was granted, reducing two of the sentences to three (3) to six (6) years. Both before and after sentencing, however, appellant sought to withdraw this plea. After appellant’s initial appeal to this Court was denied, the Honorable James D. McCrudden of the Philadelphia Court of Common Pleas reinstated his right to appeal nunc pro tunc This timely appeal follows.

Appellant proffers two arguments for our consideration. First, appellant contends that the lower court abused its discretion in denying his petition to withdraw his guilty plea before sentencing and in its subsequent refusal to grant his post-sentence motion to withdraw this plea on the grounds that it was made involuntarily. Second, appellant argues that trial counsel rendered ineffective assistance by advising him to plead guilty rather than stand trial. We disagree with these contentions for the reasons outlined below.

Appellant correctly notes that requests to withdraw guilty pleas prior to sentencing should be liberally allowed by our trial courts. Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973). The withdrawal of a guilty plea prior to sentencing should be freely permitted for any fair and just reason unless such an allowance substantially prejudices the prosecution. Id. Absent an abuse of discretion, we will not disturb the decision of a lower court. In contrast, a trial court is only required to permit a withdrawal of a guilty plea after sentencing where a defendant/appellant can demonstrate that prejudice on the order of manifest injustice has occurred. Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813 (1985). Manifest injustice occurs where a plea is entered involuntarily or without knowledge of the charge. Commonwealth v. Muller, 334 Pa.Super. 228, 482 A.2d 1307 (1984). As with withdrawals before sentencing, we will not disturb a lower court’s decision in this instance absent an abuse of discretion. In the case sub judice, the lower court found that the Commonwealth would be substantially prejudiced if the motion to withdraw the guilty plea was granted. Reviewing the record, we agree with the lower court.

On August 6, 1985, appellant entered the relevant open guilty plea. A lengthy colloquy was conducted by the lower court judge and the Commonwealth to inform appellant of his rights in conjunction with the plea and to determine whether the pertinent pleas were knowingly and voluntarily proffered. Subsequently, the lower court received a letter from one Frederick Jenkins which stated that he [Jenkins] had advised appellant to plead guilty. (The record does not disclose whether Jenkins is a lawyer or layman.) On December 19, 1985, the court conducted a second hearing in conjunction with the letter. Appellant was again advised that he could withdraw his plea and instead go to trial. While appellant did not retract his guilty plea, he requested that the court grant him additional time to consider the possibility of a withdrawal.

Pursuant to appellant’s request, the lower court continued the hearing to January 27, 1986. At the January 27, 1986 hearing, appellant sought to withdraw his guilty plea and proceed to trial. The Commonwealth opposed this motion, arguing that it would be substantially prejudiced by such a decision since it no longer was able to locate the pertinent witnesses and victim to the relevant crimes. On February 11, 1986, the lower court denied appellant’s presentence petition to withdraw the guilty plea. Later, the court would deny an identical post-sentence petition.

Recently, in Commonwealth v. Cole, 387 Pa.Super. 328, 564 A.2d 203 (1989), we declared that a trial court did not abuse its discretion in denying a petition to withdraw a guilty plea under similar circumstances. In Cole, the Commonwealth dismissed its witnesses after defendant/appellant plead guilty. Over a month later, appellant filed a motion to withdraw his guilty plea. Appellant argued that he was innocent of the charges against him and that the plea of guilty had been entered involuntarily. The Commonwealth opposed this petition, arguing that appellant had improperly delayed the trial until a key witness was unavailable. Appellant’s motion to withdraw the guilty plea was denied by the lower court.

After reviewing the record, we declared in Cole that appellant’s bald assertion of innocence did not constitute a fair and just reason for allowing him to withdraw his plea of guilty. “Not only would the Commonwealth have been prejudiced by allowing such withdrawal but appellant would have been permitted to make a mockery of the guilty plea hearing process in which appellant, after a full and complete colloquy, admitted his guilt and his role [in the pertinent crimes].” Id., 387 Pa.Superior Ct. at 335, 564 A.2d at 206. Such is also the case here.

Our review of the record in the instant case reveals that ■appellant sought a withdrawal of his guilty plea on the basis of the aforementioned Jenkin’s letter. At no time during the proceedings did appellant deny his guilt. Instead, appellant proffered the Jenkins’ letter, which stated that he did not understand the nature of his confession and that the police had written the charges against him in a way that would make it difficult for him to avoid conviction. We do not believe that these reasons constitute a fair and just reason for allowing appellant to withdrawal in light of Cole. After a full and complete colloquy, appellant pleaded guilty to the relevant charges. With regard to appellant post sentence-motion to withdrawal his guilty plea, we note that appellant also failed to demonstrate a manifest injustice occurred due the denial of his motion. Therefore, we reject this contention and affirm the lower court with regard to this issue.

With regard to appellant’s argument concerning the alleged ineffectiveness of counsel, our supreme court has noted as follows:

Appellant’s claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court. Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974). Thus allegations of inef tive assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. See Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976).

Commonwealth v. Chumley, 482 Pa. 626, 639-41, 394 A.2d 497, 504-5 (1978). Appellant argues that counsel rendered ineffective assistance of counsel in advising him to plead guilty to the charges against him. Specifically, appellant alleges that trial counsel erred in failing to litigate a motion to suppress appellant’s statement to the police. This was error, appellant concludes, since the Jenkin’s letter raised serious doubts concerning the validity of the confession. We disagree.

The burden of establishing ineffective assistance of counsel rests upon the appellant because counsel’s stewardship is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1989). Appellant’s obligation is to demonstrate both that “the omission or commission by counsel was arguably ineffective and the likelihood that he was prejudiced as a result.” Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987) (emphasis in original). The initial inquiry in an ineffectiveness claim is always “whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim.” Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989). If this threshold is met, it must next be determined that the particular course followed by counsel had no reasonable basis designed to effectuate his client’s interests. Id. The final inquiry is to establish the precise manner in which counsel’s commission or omission prejudiced the appellant. Id. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective because the appellate courts will not consider such claims in a vacuum. Id.; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). We note additionally that counsel will not be deemed ineffective for failing to predict a change in the law. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

As we have previously noted in this opinion, appellant knowingly and voluntarily pleaded guilty to the pertinent crimes. A probing colloquy was conducted by the lower court judge and the Commonwealth to ensure that appellant was cognizant of his actions. Since we have found that appellant voluntarily pleaded guilty, we can not find trial counsel ineffective for failing to file a motion to suppress his statements to the police concerning the relevant crimes. See Chumley, supra. Thus, we also reject this allegation of ineffectiveness and affirm the lower court with regard to this issue.

Accordingly, the lower court’s judgment of sentence is affirmed.

      . Without prejudice to appellant’s right to relief under the Post Conviction Hearing Act (hereinafter referred to as the "PCHA”), 42 Pa.C. S.A. § 9541 et seq., we dismissed petitioner's appeal on September 29, 1987 without ruling upon its merits due to the failure of counsel to file a brief.

      . On April 17, 1989, with the Commonwealth having no objection, Judge McCrudden reinstated appellant’s right to appeal pursuant to his petition under the Post Conviction Relief Act, (hereinafter referred to as the “PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Since this action was instituted after the effective date of the PCRA, April 13, 1988, it will be evaluated under the PCRA.

      . Our review of the record reveals that the lower court’s inquiry was in accordance with the mandates of our supreme court as enunciated in Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977) and Pa.R.Crim.P., Rule 319, 42 Pa.C.S.A.