author: HOFFMAN, Judge. CAVANAUGH, Judge, JOHNSON, Judge,

text:
    642 A.2d 1088
    James and Joanne DIDIO, H/W v. PHILADELPHIA ASBESTOS CORPORATION, GAF Corporation, Raymark Industries, Inc., Southern Textile, Garlock, Inc., Fibreboard Corporation, Eagle-Picher Industries, Inc., Keene Corporation, Celotex Corporation, J.P. Stevens and Company, Inc. and Owens-Illinois Glass Co. Appeal of FIBREBOARD CORPORATION (at 2867). James DIDIO and Joanne Didio, H/W v. PACOR, INC., Eagle-Picher Industries, Keene Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of KEENE CORPORATION (at 2868). James DIDIO and Joanne Didio, H/W v. PACOR, INC., Eagle-Picher Industries, Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Celotex, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Forty-Eight Insulation, Inc. and Raymark, Inc. Appeal of OWENS-ILLINOIS GLASS CO. (at 2869).
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed April 11, 1994.

      Carol Wideman, Philadelphia, for Fibreboard, appellant (at 2867) Keene Corporation, appellant (at 2868) and Owens-Illinois, appellant (at 2869).
    David A. Cohen, Philadelphia, for Keene Corp., appellee (at 2867) and appellant (at 2868) and Owens-Illinois, appellant (at 2869).
    Steven J. Cooperstein, Philadelphia, for Didio, appellees (at 2867, 2868 and 2869).
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the Order of the Honorable Sandra Mazer Moss dated July 22, 1992 which provides as follows:

AND NOW, THIS 22nd day of July, upon consideration of defendant Keene’s, Fibreboard’s, and Owens-Illinois’ motions for New Trial and/or Remittitur and Plaintiffs responses thereto, it is hereby ORDERED and DECREED said motions are DENIED.
Upon consideration of Plaintiff DiDio’s Delay Damages Motion against Keene, it is hereby Ordered and Decreed said Motion is Granted and delay damages are awarded in the amount of $134,960.96 against Keene Corporation for James DiDio.
Judgment is hereby entered in the amount of $284,960.95 for James DiDio against Keene which reflects the $150,000 verdict share together with the aforesaid delay damages. Upon consideration of DiDio’s Delay Damages Motion against Fibreboard, it is hereby ORDERED and DECREED said Motion is GRANTED and delay damages are awarded in the amount of $134,960.95 against Fibreboard Corporation and for James DiDio.
Judgment is hereby entered in the amount of James DiDio against Fibreboard which reflects the $150,000 verdict share together with the aforesaid delay damages.
Upon consideration of Plaintiff DiDio’s Delay Damages Motion against Owens-Illinois, Inc., it is hereby ORDERED and DECREED said Motion is Denied as untimely. Judgment is hereby entered in the amount of $900,000 for James DiDio against Owens-Illinois which reflects Owens-Illinois’ verdict share alone.

Trial Court Order of July 22, 1992.

Appellant Fibreboard Corporation (hereináfter “Fibreboard”), presents the following questions for our review:

I. Does the law of Pennsylvania permit the admission of hearsay opinion testimony from a non-testifying witness who is unavailable for cross-examination where the opinion testimony addressed the key issue in the case?
II. Does the law of Pennsylvania permit a plaintiff to recover damages on the basis of plaintiffs counsel’s fear, as expressed in his summation, that the defendants may be bankrupt in the future and therefore not answerable for damages should the jury fail to award damages presently?
III. Does the law of Pennsylvania permit a plaintiff to recover damages for physical pain and suffering where the plaintiff has failed to allege any such damages?
IV. Whether the court below erred in denying Fibreboard’s Motion for New Trial on the grounds that the amount of the jury’s award was not supported by the weight of the evidence and was arbitrary and capricious?
V. Whether the court below committed an error of law in denying Fibreboard’s Motion for Remittitur?

Fibreboard’s Brief at 3.

Appellant Keene Corporation (hereinafter “Keene”), presents the following question for our review:

Whether the Trial Court erred in denying defendant Keene Corporation’s motion for substantial remittitur ... or in the alternative to grant a new trial.

Keene’s Brief at 11.

Finally, appellant Owens-Illinois Glass Company (hereinafter “O-I”), presents the following questions for our review:

I. Whether the order of the trial court dated July 22,1992, was a “final order” as it was promulgated in the absence of the court’s adjudication of Owens-Illinois’ cross-claims, such as to confer jurisdiction of the Pennsylvania Superior Court over this matter?
II. Whether the trial court’s sua sponte severance of Owens-Illinois’ cross-claims, for adjudication in the 21st century, resulting in extreme prejudice to Owens-Illinois, violated defendant’s rights as guaranteed by statute?
III. Whether the trial court’s severance of Owens-Illinois’ cross-claims, for adjudication in the 21st century, without notice or an opportunity to be heard, violated Owens-Illinois’ constitutional guarantees of due process, right to a jury trial and access to courts?

O-I’s Brief at 4. For the reasons set forth below, we stay in part, reverse in part, vacate in part and affirm in part.

On October 22, 1982, appellees, James and Joanne Didio, filed a complaint seeking to recover for injuries arising out of Mr. Didio’s occupational exposure to asbestos. The defendants in appellees’ complaint included Fibreboard, Keene, O-I and a number of other manufacturers, suppliers and distributors of asbestos containing products. At the time of trial, only Fibreboard, Keene and O-I remained as defendants.

Before trial, the asbestos calendar judge consolidated the instant case with two other similar actions filed by Thomas Brown and John Andrews. The damages phase of the trial commenced on September 19, 1991 before the Honorable Charles Right and a jury.

At trial, the relevant facts were as follows. James Didio was employed in various capacities in the Philadelphia Naval Shipyard between 1958 and 1965, and from 1966 until the time of trial. During the first seven of those years, Mr. Didio worked as a pipefitter and was exposed to asbestos throughout each workday. He continued to be exposed to asbestos regularly in the following ten years, although not continuously during each workday as in the past.

In 1982, the shipyard dispensary informed Mr. Didio that his chest X-ray was not normal and sent him to see a pulmonary specialist, Dr. Badra. It was Mr. Didio’s first indication that he had an asbestos-related disease. At trial, William Fineman, M.D., testified that Mr. Didio has asbestosis and pleural thickening. Dr. Fineman observed asbestosis and pleural thickening on X-rays taken as early as 1974. Over the intervening seventeen years, the diseases had steadily progressed to the point that, as of the time of trial, the pleural thickening was extensive. Dr. Fineman also testified as to the cancer risks faced by Mr. Didio as a result of his asbestos exposure. Mr Didio stated that his knowledge of these risks is constantly on his mind and has caused a marked change in his personality. Finally, the parties stipulated that Mr. Didio’s life expectancy is an additional 24.6 years.

At the conclusion of the damages phase of the trial, on September 26, 1991, the jury returned a verdict in favor of Mr. Didio in the amount of $900,000. All of the parties at trial, with the exception of O-I, presented to the court a stipulation as to liability. On September 30, 1991, the trial proceeded on liability with O-I remaining as the sole defendant. After testimony of Mr. Didio and George Watts was heard, O-I requested that its cross-claims against its co-defendants be heard. The trial court denied this request and ordered that O-I’s cross-claims were severed. The jury subsequently found O-I to be a substantial contributing factor to Mr. Didio’s injuries.

The trial court then entered a verdict finding Keene and Fibreboard, pursuant to their stipulations, each liable for one-sixth of the damages awarded to appellees and finding O-I liable to appellees for the entire amount of damages awarded to appellees. Keene, Fibreboard and O-I timely moved for post-trial relief, and appellees petitioned for delay damages. However, Judge Wright retired before resolving those motions and the matter was reassigned to Judge Moss. On July 22, 1992, Judge Moss issued an order and opinion denying Keene’s, Fibreboard’s and O-I’s motions, granting appellees’ petition for delay damages, and entering judgment in the amount of $248,960.95 each against Keene and Fibreboard and in the amount of $900,000 against O-I. After docketing the judgments on August 11, 1992, Keene’s, Fibreboard’s and OI’s timely appeals followed.

On December 3,1993, Keene Corporation filed a bankruptcy petition under 11 U.S.C. § 301 in the United States Bankruptcy Court for the Southern District of New York. In light of the automatic stay provisions of the United States Bankruptcy Code, we must preliminarily determine whether this court may address the merits of Keene’s appeal.

11 U.S.C. § 362(a)(1) provides as follows:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

Id.

We point out that this stay includes “appeals in actions that were originally brought against the debtor, regardless of whether the debtor is the appellant or the appellee.” Borman v. Raymark Industries, Inc., 946 F.2d 1031, 1033 (3rd Cir.1991). Moreover, the stay may not be waived by either creditor or debtor. Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1206 (3rd Cir.1991). Finally, “[t]he automatic stay’s effect on judicial proceedings against the debtor does not depend upon whether the court finds for or against the debtor.” Id.

As Keene’s appeal arises from an action brought against Keene before the filing of his bankruptcy petition, we must stay Keene’s appeal pending the conclusion of the bankruptcy proceedings.I. *** Moreover, as the automatic stay applies only to the bankrupt debtor, we must sever Keene from the instant appeal. See 11 U.S.C. § 362(a). See also Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d at 1205. Accordingly, we will proceed with the merits of Fibreboard’s and O-I’s respective claims in seriatim.

I.

Fibreboard claims that the lower court erred in failing to grant its motion for directed verdict as appellees failed to allege any damages for pain and suffering. Specifically, Fibreboard contends that as James Didio’s pleural thickening and asbestosis conditions did not cause Mr. Didio any current ill health or functional impairment, they are not injuries entitling appellees to compensation. We agree and accordingly reverse and vacate the judgment entered against Fibreboard.

It is well-settled that “[wjhen deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contentions and reject all adverse testimony.” Boyce v. Smith-Edwards-Dunlap Co., 398 Pa.Super. 345, 354, 580 A.2d 1382, 1387 (1990), appeal denied, 527 Pa. 650, 593 A.2d 422 (1991). On review, we will reverse the trial court’s decision only if there is an abuse of discretion or error of law. Id.

This court has recently held en banc that asymptomatic pleural thickening is not compensable as a matter of law. Giffear v. Johns-Manville, Corp., et al., 429 Pa.Super. 327, 632 A.2d 880 (1993). In their brief on appeal, appellees concede that Mr. Didio’s pleural thickening was asymptomatic. Accordingly, appellees are clearly not entitled to compensation for Mr. Didio’s pleural thickening.

Likewise, we find this court’s holding in Giffear to be dispositive of the issue of compensability of Mr. Didio’s asbestosis. In Giffear, this court held that “claims for risk and fear of cancer no longer form a basis for recovery in asbestos cases where cancer is not present.” Giffear, 429 Pa.Super at 343, 632 A.2d at 888. As appellees concede that Mr. Didio’s basis for recovery from his asbestosis was the fear and risk of contracting future cancer, we hold that appellees are not entitled to recovery for Mr. Didio’s asbestosis. See Appellees’ Brief (Fibreboard and Keene) at 14-16. Accordingly, since appellees have no legally cognizable claim regarding Mr. Didio’s pleural thickening or asbestosis, a directed verdict should have been granted to Fibreboard. We therefore vacate the judgment entered against Fibreboard.

II.

Next, we will address O-I’s claims. Preliminarily, we point out that O-I does not contest the basis for the jury’s finding of damages and liability. Hence, although we vacate the judgment entered against Fibreboard, this does not affect the validity of the judgment entered against O-I. See, e.g., General Electric Credit Corp. v. Aetna Cas. & Sur. Co., 437 Pa. 463, 263 A.2d 448 (1970). O-I first contends that as the July 22, 1992 order of the trial court was entered in the absence of an adjudication of its cross-claims, it was not a final order and, therefore, the Superior Court does not have jurisdiction to hear this appeal. We disagree.

Pa.R.App.P. 341, as amended through September 12, 1982, provides that “an appeal may be taken as of right from any final order of any administrative agency or lower court.” Pa.R.A.P. 341(a) (as amended through September 12, 1982). For the purposes of Rule 341, an order is final and, therefore, appealable when it “effectively ends litigation or disposes of the entire case.” See Davis Supermarkets, Inc. v. Local 23, 368 Pa.Super. 290, 292, 533 A.2d 1068,1070 (1987); Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). See also 42 Pa.C.S. § 742.

In Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987), our Supreme Court held that where the trial court has bifurcated the liability and damages phases of a trial, final judgment cannot be entered on the jury’s verdict as to the first phase until a verdict has been entered on the other. In other words, the verdict on the first issue cannot be appealed to the Superior Court until the second phase has also been adjudicated. The court pointed out, however, a pivotal distinction between bifurcation and severance: While “the two phases [of a bifurcated proceeding] are viewed as two halves of a single proceeding ... [,]” id. at 422, 521 A.2d at 419, “ ‘a severance of actions effects a splitting of them into one or more independent actions for all purposes, including trial and appellate procedure.’ ” Id. at 419, 521 A.2d at 417 (quoting Kaiser v. Meinzer, 272 Pa.Super. 207, 216, 414 A.2d 1080, 1085 (1979), appeal dismissed, 498 Pa. 136, 445 A.2d 104 (1982)). Hence, when two related causes of action have been severed, a final order disposing of only one of them is not interlocutory despite the fact that the other is outstanding.

In the instant action, O-I’s cross-claims were severed from the trial on damages and liability. See N.T., 9/30/91, at 99. See also, cf., Stevenson, 513 Pa. at 419, 521 A.2d at 417; Kaiser, 272 Pa.Super. at 216, 414 A.2d at 1085. Accordingly, we find the July 22, 1992 order to be final and appealable.

O-I next argues that, assuming the July 22, 1992 order is final and appealable, the trial court abused its discretion in denying O-I’s request to have its cross-claims heard at the trial on liability. We disagree.

Pa.R.Civ.P. 213(b) provides as follows:

The court, in furtherance of convenience or to avoid prejudice, may, on its own motion on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.

Id.

After a careful review, we find that the trial court’s severance of O-I’s cross-claims was a laudable attempt at managing the incredible asbestos backlog in Philadelphia County. The trial court, in its discretion, found that the cross-claims brought by O-I were most likely a delay tactic which would only serve to unduly prolong appellees’ action. See Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 513 A.2d 1014 (1986). Hence, we do not agree that the trial court abused its discretion in severing O-I’s cross-claims.

O-I also contends that the trial court’s severance of O-I’s cross-claims was in violation of its constitutional rights guaranteed under the Pennsylvania and United States Constitutions to trial by jury, access to courts, to appeal, and to the due process of law. This argument is spurious.

The trial court, in its discretion, severed O-I’s crossclaims pursuant to Pa.R.Civ.P. 213(b). Pa.R.Civ.P. 213(b) has never been found to be unconstitutional. After a careful review of the proceedings below, we find that the trial court’s severance of O-I’s cross-claims was proper and not in violation of either the United States or the Pennsylvania Constitution.

Finally, O-I contends that as the trial court did not provide a written order severing O-I’s cross-claims prior to the trial court opinion, O-I was not provided with the opportunity to dispute the reasons provided by Judge Moss in her opinion. We disagree. O-I’s has had sufficient opportunity to present its objections to the trial court’s severance of O-I’s cross-claims in its brief on appeal. As we have found these reasons to be without merit, we fail to see any prejudice resulting from the trial court’s failure to provide O-I with a written order.

Accordingly, Keene’s appeal is stayed pending the conclusion of the bankruptcy proceedings. However, regarding Fibreboard and O-I, we vacate that part of the July 22, 1992 judgment order as entered against Fibreboard and affirm that part of the order as entered against O-I.

Stayed in part; reversed in part; vacated in part; affirmed in part.

CAVANAUGH, J., concurs.

JOHNSON, J., dissents.

CAVANAUGH, Judge,

concurring.

I concur in the result reached by the majority and write separately to highlight two points. First, I note that of the three appellants, one, Owens-Illinois, does not raise a challenge to the sufficiency of the evidence to show damage. The compensability of asymptomatic pleural thickening and asbestosis is only raised on appeal by Fibreboard Corp. and Keene Corp. I find the omission of this issue by Owens-Illinois noteworthy in light of other cases in which Owens-Illinois has joined the same co-appellants in raising the issue of recoverability where pleural thickening or pulmonary asbestosis are asymptomatic. See, e.g., Dempsey v. Pacor, Inc., 429 Pa.Super. 404, 632 A.2d 919 (1993).

Secondly, regarding the severance of Owens-Illinois’ cross-claims against settling defendants, I observe that the procedural mechanism of severance distinguishes this case from Deptula v. Owens-Corning Fiberglas Company, 425 Pa.Super. 420, 625 A.2d 676 (1993). In Deptula, a formal severance had not been ordered and, therefore, the refusal of the trial court to hear the cross-claims had the effect of a nonsuit. In both this case and Deptula, Owens-Illinois will pursue in a separate trial its crossclaims against the settling defendants. Owens-Illinois, however, is not in the same posture in this case as it is as a result of the Deptula decision because in Deptula the judgment was vacated, whereas in the instant case, the $900,-000 judgment has been allowed to stand.

JOHNSON, Judge,

dissenting.

While I join the Majority in affirming the order of the trial court severing the Owens-Illinois Glass Company’s cross-claims, I cannot join the analysis of the majority on its disposition of the remaining issues. Not only do I reject the retroactive application of Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), to the facts of this case, my review of this record suggests the determination of the Majority that Giffear is dispositive of this particular case is misplaced.

James Didio’s medical expert testified that Didio suffered from both progressive pleural thickening and asbestosis. N.T. 9/19/91, at 13-20; R. 559a-566a. While Giffear holds that asymptomatic pleural thickening is not compensable as a matter of law, 429 Pa.Super. at 335, 632 A.2d at 884, Giffear also determines that “if the asymptomatic pleural thickening would lead to a clear asbestos-related injury (asbestosis, lung cancer or mesothelioma), the plaintiff could then bring an action at that time.” Id. at 337-38, 632 A.2d at 886 (emphasis added). Giffear would allow a plaintiff with asbestosis to recover since asbestosis is “a clear asbestos-related injury.” Since Giffear would allow recovery for asbestosis, and medical testimony established that James Didio suffered from asbestosis, N.T., 9/19/91 at 15, 53-55, I am constrained to conclude that Giffear is not dispositive of this case on these facts.

Fibreboard also contends that Didio’s “abject failure to present evidence any of his physical pain and suffering” requires this Court to grant judgment notwithstanding the verdict or a new trial. Appellant’s Brief at 21-22. The authorities cited by Fibreboard fail to support this assertion. In fact, the issue in Griffin v. Tedesco, 355 Pa.Super. 475, 513 A.2d 1020 (1986), the first case cited by Fibreboard, was whether the trial court’s discovery sanction, which precluded appellant from introducing any testimony at trial, was improper. Id. at 480, 513 A.2d at 1023. This is without merit.

Fibreboard further maintains that there was no testimony that Didio experienced pain or suffering as a result of his asbestos exposure. Yet the medical evidence indicated that, given his age, Didio had an alarming severity of disease, which had already progressed extensively, and might be expected to worsen in the future; Didio “may ultimately become a pulmonary cripple” since there is no possibility of treatment, reversal or cure. N.T., 9/19/93 at 19-20, 25-29; R. 565a-566a, 571a-575a. James Didio testified that he suffers great anxiety as a result of his diagnosis and described his initial reaction to the diagnosis of his conditions as devastation. N.T. 9/20/91 at 94; R. 205a. He worries constantly about his health and the future of his family; he has altered his activities so that he is now sedentary; he suffers from shortness of breath upon exertion under humid weather conditions; his personality has also changed in that now he is withdrawn, constantly frightened that his condition will become aggravated. N.T. 9/20/91, at 97-100; R. 208-212a. This evidence when believed and accepted by a trier of fact is proof of pain and suffering. See Boggavarapu v. Ponist, 518 Pa. 162, 168, 542 A.2d 516, 519 (1988). “[V]ictims indeed must be compensated for all they lose and all that they suffer from the tort of another.” Id. at 167, 542 A.2d at 518. Our Supreme Court has determined that:

[T]here are injuries to which human experience teaches there is accompanying pain. Those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering. Pain, of varying degree, may indeed follow small injury and be greater in its consequence than the initial blow. It may aggravate existing defects of the person, exploding latent diseases or precipitate, into present pain, what otherwise might have passed or been long delayed, absent the immediate injury. Pain may be subjective, and if believed, is compensable. If the pain, however, has no known medical source and is subjective to the person, the triers of fact must believe and accept that [the pain] ... exists.

Id. at 167, 542 A.2d at 518 (citations omitted).

Here the jury exercised its prerogative to believe all, some or none of the evidence. My review of this record reveals that the trial court gave a full and accurate instruction to the jury on the measure of damages. Indeed, Fibreboard raises no claim to the contrary. My review of this record also convinces me that the jury followed the instruction of the trial court on the measure of damages. I would hold that this matter should end with the verdict of the jury, once the trial court denied Fibreboard’s post-trial motions.

Moreover, I continue to find it unsettling that the Majority would retroactively apply this Court’s decision in Giffear v. Johns-Manville Corp., supra, to this asbestos case. In Murray v. Philadelphia Asbestos Corp. et al., 433 Pa.Super. 206, 220, 640 A.2d 446, 453, dissent by Johnson, J., I set forth my concern that this Court has not actually considered whether Giffear should apply retroactively or prospectively. Again, I am troubled that the Majority applies Giffear to Keene’s motion for remittitur retroactively. This issue has not been directly raised before our Court; and our Court has not had the benefit of reasoned argument by the parties on whom the burden of these decisions would fall.

Again, I am unable to deem a request for remittitur sufficient to preserve the question of whether it is proper to award damages for even an asymptomatic condition pursuant to Giffear. I fail to see that a request for remittitur has the particularity or precision to adequately preserve this issue. A request for remittitur alone is not sufficient to preserve this issue. Hence, I cannot agree that our Court should allow Giffear to be applied retroactively, absent considered and reasoned reflection. Given the volume of these cases throughout the Commonwealth, I find this adoption of retroactivity regrettable.

Accordingly, while I join the Majority in affirming the trial court’s severance of the Owens-Illinois Glass Company’s cross-claims, I dissent from the Majority on the remaining issues.

      . The other defendants were either under the protection of federal bankruptcy laws, had been granted summary judgment or had settled with appellees.

      . Trial was in reverse bifurcated form; that is, trial proceeded on damages before liability.

      . Keene and Fibreboard each stipulated to 1/6 liability.

      . George Watts was a co-worker of Mr. Didio.

      . Although Keene’s appeal is stayed under 11 U.S.C. § 362(a)(1), we do not imply that it would be improper for the bankruptcy court to lift or modify the stay to permit disposition.

      . Because of our disposition of Fibreboard’s claim for a directed verdict, we need not address Fibreboard’s other contentions of trial court error.

      . Although Giffear was filed after the complaint in the underlying action, “[w]here' an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including direct appeal.” Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)). As Giffear does not specify whether its holding is prospective or retroactive and as Fibreboard has properly preserved the issues dealt with in Giffear, we will apply the holding in Giffear to the instant action.

      . In their brief, appellees state the following:
      Although Mr. Didio was not shown to suffer from physical symptoms directly linked to his asbestos disease[s], Dr. Fineman testified that given Mr. Didio's young age, the degree of disease is alarming. His pleural thickening was already severe, and both diseases had spread a great amount over the years. In addition, Mr. Didio is at substantially increased risk of contracting lung cancer and mesothelioma. He suffers great anxiety as a result of his increased cancer risk. He described his initial reaction to the diagnosis of his conditions as devastation. His fear of a premature death from cancer is on his mind daily and has altered his personality from that of active and outgoing to cautious and sedentary. He is constantly frightened that . his condition will become aggravated.
      The plaintiff has a severe amount of disease, so severe as to be alarming in so young a person. His diseases have already progressed and may worsen in the future. There is no possibility of treatment, reversal or cure. He will spend long years of his life at increased risk of and in fear of cancer. Although defendants attempt to minimize the numerical risk, when viewed over such a large number of years, the risk is quite substantial. The plaintiff’s fears stemming from these risks are quite real and valid. The fears have plagued him for nearly ten (10) years, and can be expected to affect his life for twenty-five (25) more. These considerations fully justified the jury's award.

        Appellees’ Brief (Fibreboard and Keene) at 14-16.

      . Since the current Pa.R.App.P. 341 applies only to cases filed by July 6, 1992 and as the complaint in the instant action was filed on October 22, 1982, we must follow our judiciary’s interpretation and application of the language of former Rule 341 as amended through September 12, 1982.

      . O-I also argues that it was prejudiced by the trial court’s failure to schedule a date for its cross-claims. However, O-I has failed to demonstrate any attempt to schedule its cross-claims with Judge Moss after they were severed. Hence, we cannot see any error on the part of the trial court.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    642 A.2d 1096
    Jack GORDON and Sara Gordon, His Wife, Arnold Gordon and Ruth Schachter, Appellees, v. Barry B. SOKOLOW and Louis R. Salamon, Appellees, v. EMPIRE PROPERTIES, INC., and William P. Nolan, Jr. (Two Cases) Appeal of Louis R. SALAMON, Appellant. Appeal of Barry B. SOKOLOW, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1994.
    Filed May 26, 1994.

      Sandra L. Lannis, Pittsburgh, for Salamon.
    Dennis J. Roman, Pittsburgh, for Sokolow.
    Scott D. Cessar, Pittsburgh, for Empire Properties and Nolan.
    Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   DEL SOLE, Judge.

This is an appeal by Barry B. Sokolow, Esquire and Louis R. Salamon, Esquire (appellants) from an Order entered by the Court of Common Pleas of Allegheny County, granting the additional defendants’ (Empire Properties, Inc. and William Nolan, Jr./appellees) Motion to Strike the Complaints to Join filed by original defendants. We reverse and remand.

Two issues have been raised for our review: (1) whether the trial court erred by granting the additional defendants’ motion to strike the complaint to join additional defendants since joinder is permissible pursuant to Pa.R.C.P. 2252(a); and (2) whether the trial court abused its discretion by refusing to grant Attorney Sokolow an opportunity to amend his complaint to join additional defendants.

. Jack and Sara Gordon, Arnold Gordon and Ruth Schachter, plaintiffs below, initiated a legal malpractice action against Attorneys Sokolow and Salamon. Plaintiffs alleged in their complaint that appellant Sokolow had been retained by them to represent their interests in connection with negotiations for the sale of property they owned, to Empire Properties, Inc. In June 1988, Attorney Sokolow received Empire’s draft of a proposed Agreement of Sale. He was to review this agreement and advise the sellers about revisions necessary to protect their interests. In a letter to Jack Gordon, Attorney Sokolow suggested revisions and amendments to the draft Agreement. Attorney Sokolow also notified William Nolan, president of Empire Properties, Inc., by letter, requesting additional language be inserted in paragraph 24 of the Agreement. Attorney Sokolow was aware that Empire Properties, through its agent, would prepare the final Agreement of Sale to be executed by Plaintiffs and Empire. Plaintiffs now claim that Attorney Sokolow did not request a copy of the final draft nor did he ask to be read any additional language of the final Agreement prior to execution by Jack Gordon.

During a meeting on June 24, 1988, at Gordon’s home with the president of Empire, Gordon telephoned Attorney Sokolow at his law office twice regarding the real estate transaction. That same day, Jack Gordon and William Nolan signed the Agreement of Sale. Later, when Empire Properties, Inc. could not obtain mortgage financing, it informed the plaintiffs in a letter dated December 27, 1989 that it declared its intention to purchase the property null and void. Attorney Sokolow then suggested that plaintiffs retain the services of Attorney Salamon for advice relative to the ability of Empire Properties, Inc. to declare the Agreement of Sale null and void, and to explore the feasibility of extending owner/seller financing to Empire Properties, Inc. Thereafter Sokolow and Salamon advised the plaintiffs to extend to Empire Properties, Inc. seller financing as set forth in paragraph 24 of the Agreement of Sale. Plaintiffs extended the offer of purchase money financing to Empire Properties. At the time that such offer of financing was made, paragraph 24 of the Agreement of Sale contained the following language: “any purchase money mortgage shall be subordinate to a development loan.”

Plaintiffs contend that they were unaware that the subordination language was contained in paragraph 24 of the Agreement of Sale. Empire Properties, Inc. accepted the offer of financing and demanded that any purchase money mortgage would be subordinate to a development loan secured by Empire Properties, Inc. The complaint alleges that only after being apprised of this demand did Sokolow and Salamon read the Agreement of Sale and advise the Plaintiffs not to close on the transaction, but rather to institute legal action against Empire Properties, Inc. for fraud and breach of contract. Empire Properties commenced a lawsuit against the Plaintiffs seeking specific performance and money damages. Plaintiffs retained other counsel and counterclaimed against Empire. Eventually, following extensive discovery and court conciliations, Empire’s action and plaintiffs’ counterclaim were resolved by Consent Order.

Plaintiffs subsequently initiated this action alleging professional negligence against Attorney Sokolow for his failure to request a copy of the final draft of the Agreement of Sale for review, for not ensuring that subordination language was kept out of the Agreement before it was executed by Jack Gordon, for failing to appear at the closing where the Agreement of Sale was executed, for providing additional advice relative to Empire’s declaration that the Agreement was null and void when Attorney Sokolow did not have a copy of the Agreement, and for advising Plaintiffs to extend a purchase money mortgage when the contract contained subordination language. As a direct consequence of this negligence, plaintiffs contend that they were required to pay Empire Properties, Inc. $200,000 to release its claims to the property under the Agreement of Sale, and they incurred Attorney’s fees in defense of their interest in the amount of $125,000. Plaintiffs believe that had they received proper legal advice, they only would have sustained a loss of $25,000. The complaint charges Attorney Salamon with similar professional negligence, as to the post-December 27, 1989 events only, and seeks the same damages.

Attorney Sokolow alleged in the Complaint to Join Additional Defendants, Empire Properties, Inc. and William Nolan, that plaintiff provided Empire and Nolan with a copy of Attorney Sokolow’s letters specifying changes and additions to the proposed Agreement of Sale. At a meeting between plaintiff, Sokolow and Nolan two days before the Agreement of Sale was executed, additional defendant Nolan did not object to any of the revisions proposed by Sokolow, including the mortgage contingency and purchase money mortgage option, and no additional subordination language was ever discussed or requested by Nolan. Sokolow alleged that Nolan, acting on behalf of Empire, agreed to the final Agreement of Sale as the parties had previously discussed. At the meeting at plaintiff Jack Gordon’s house on June 24, 1988, Nolan brought the Agreement of Sale and Gordon read and reviewed the document to verify that the revisions were made that Attorney Sokolow specified through discussion and letters and to ensure that no other changes were made. Nolan represented to plaintiff Jack Gordon that the Agreement of Sale was identical to the language previously specified and approved by Attorney Sokolow and that nothing further was inserted into the agreement. The parties then executed the Agreement of Sale.

Sokolow’s Complaint alleges that Empire and Nolan were under a duty to disclose any changes, including the subordination language, to the agreement. Further, if plaintiffs sustained any damages, then the damages are a direct result of fraud, intentional and/or negligent misrepresentations and/or non-disclosures, and breach of contract by additional defendants, Empire and Nolan. Sokolow contends that additional defendants, Empire and Nolan, are solely liable to plaintiffs, but, if it is determined that plaintiffs are entitled to recover and that he is liable in any way, then additional defendants are jointly and severally liable with, liable to or over to him for contribution and/or indemnity. Attorney Salamon filed a similar Complaint to Join Additional Defendants.

Additional defendants, Empire Properties, Inc. and William Nolan, filed preliminary objections in the form of a Motion to Strike Complaint to Join for Misjoinder of Cause of Action in response to both of the Complaints to Join filed by Attorney Sokolow and Attorney Salamon. The additional defendants asserted that the causes of action brought by Sokolow and Salamon were unrelated, to, and arise from a different factual basis than the Attorney malpractice suits brought against them by the plaintiffs and therefore joinder is improper and the Complaints should be stricken. The preliminary objections were granted and the Complaints to Join stricken.

When determining whether preliminary objections have been properly sustained, this appellate court must consider as true all of the well-pleaded material facts set forth in appellant’s complaint and all reasonable inferences that may be drawn from those facts. Bower v. Bower; 531 Pa. 54, 611 A.2d 181 (1992).

Appellants submit that joinder of the additional defendants, Empire Properties and William Nolan, is permissible pursuant to Pa.R.C.P. 2252(a)(1) — (4) which states:

(a) Except as provided by Rule 1706.1, any defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be
(1) solely liable on the plaintiffs cause of action, or
(2) liable over to the joining party on the plaintiffs cause of action, or
(3) jointly or severally liable with the joining party on the plaintiffs cause of action, or
(4) liable to the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

Pa.R.C.P. 2252, 42 Pa.C.S.A.

The rule permitting the joinder of additional defendants is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence which gave rise to the plaintiffs action. Svetz for Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403, 405 (1986), alloc. denied, 515 Pa. 584, 527 A.2d 544 (1987). “However, joinder is permitted only as long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant.” Olson v. Grutza, 428 Pa.Super. 378, 631 A.2d 191, 197 (1993), quoting, Samango v. Pileggi, 363 Pa.Super. 423, 526 A.2d 417 (1987), appeal denied, 517 Pa. 624, 538 A.2d 877 (1987). Where the joining defendants allege joinder on the basis that the additional defendants were (1) alone liable to the plaintiff; (2) that additional defendants were jointly or severally liable with appellant, i.e, for contribution; or (3) that additional defendants were liable over to the joining defendants by way of indemnification, pursuant to § 2252(a) (1) — (3), “the only substantive limitation placed upon the right to join an additional defendant on any of these grounds is that liability must be premised upon the same cause of action alleged by the plaintiff in his or her complaint.” Svetz v. Land Tool Co., 513 A.2d 403, 404-05. See: Goodrich-Amram 2d 7 § 2252(a):5.

The phrase “cause of action” has been broadly defined as the harm of which the plaintiff complains. Hileman v. Morelli, 413 Pa.Super. 316, 605 A.2d 377 (1992). However, the phrase “cause of action” as used in Rule 2252 should not be construed too literally, rather our supreme court only required that the “additional defendant’s liability [be] related to the original claim which plaintiff asserts against the original defendant.” Somers v. Gross, 393 Pa.Super. 509, 514, 574 A.2d 1056, 1058 (1990), quoting, Incollingo v. Ewing, 444 Pa. 263, 290, 282 A.2d 206, 220 (1971). We should keep in mind that joinder of additional defendants is not permitted where allegations contained in the original complaint and allegations contained in the joinder complaint relate to different harms to be proven with different evidence as to different occurrences happening at different times. Olson v. Grutza, supra.

The plaintiffs in the original complaint commenced the action against appellants for legal malpractice. The appellant Attorneys in turn allege in their complaint to join additional defendants that Empire and William Nolan committed fraud or intentionally and/or negligently misrepresented the contents of the Agreement of Sale to plaintiffs. The plaintiffs’ action alleged failure to provide proper legal advice; whereas the joinder complaint alleged failure to disclose changes in the contract. The claims raised in the joinder complaint are separate from the plaintiffs cause of action against the Attorneys for professional negligence.

The trial court relied on Schladensky v. Ellis, 442 Pa. 471, 275 A.2d 663 (1971) and American Metal Fabricators Co. v. Goldman, 227 Pa.Super. 284, 323 A.2d 891 (1974) in support of its order striking the Complaints to Join Additional Defendants; however, these cases are distinguishable from the case sub judice.

Schladensky and Goldman have been analyzed in the context of whether an action against a negligent attorney is separate, distinct and independent from the underlying cause of action on which the attorney was hired to act for the client, and these cases held that the underlying cause of action is not a proper subject matter for a joinder complaint brought by a negligent attorney sued by his client. See Brennan v. Reed, Smith, Shaw & McClay, 304 Pa.Super. 399, 450 A.2d 740 (1982). In Schladensky, supra, the plaintiffs were injured while working when a hydraulic lift malfunctioned. The plaintiffs retained Attorney Ellis to sue the manufacturer and seller of the lift. Ellis failed to timely institute the actions. The plaintiffs sued Ellis and Ellis caused writs to issue joining the manufacturer and seller alleging negligence in placing the defective product on the market and breach of warranties which would render them liable for plaintiffs’ injuries.

Our supreme court held that the plaintiffs’ actions against their attorney (original defendant) are based on the attorney’s failure to exercise reasonable care and diligence in the use of his skill as an attorney, and in applying his knowledge to his client’s case. The attorney did not argue that the additional defendants were responsible for his failure in that regard or that they obstructed his timely prosecution of the plaintiff’s case against the additional defendants. The court concluded that the negligent conduct that Ellis alleged against additional defendants was not equivalent to the malpractice that the plaintiffs asserted against him. The court decided that the unamended version of Rule 2252 applied and stated that “the cause of action on which the original defendant may bring in an additional defendant must still be the cause of action declared on by the plaintiff in the action against the original defendant.” Id. 218 Pa.Super. 808, 275 A.2d at 665. It was therefore required that the original defendant’s complaint against the additional defendants had to be related in substance to the complaint plead by the plaintiff and arise from the same factual scenario. The court further opined that

[E]ven if we were to assume that the amended version of Rule 2252(a) of the Pa.R.Civ.P. applied, it would profit Ellis nothing. The amendment now also permits joinder if the additional defendant is or may be liable to the joining party on a cause of action arising out of the transaction or occurrence upon which the plaintiffs cause of action is based. Herein Ellis has failed to plead any facts giving rise to an independent cause of action on his part against Lift-O-Loft or Mobile.

442 Pa. 471, 472, 275 A.2d 663, 664.

The difference between the instant case and Schladensky is that the actions by the plaintiffs against Attorney Ellis in Schladensky were based upon his failure to use reasonable care and diligence as an attorney in their case. Ellis did not allege that additional defendants were the cause of his failure to use his skill as an attorney, nor did he claim that they hindered his ability to commence the law suits on behalf of the plaintiffs against additional defendants. Since the negligent conduct that Ellis asserted against the additional defendants was distinct from that which the plaintiffs had charged Ellis, the court determined that joinder was improper under the unamended Rule 2252(a) which permitted joinder only on the cause of action declared by the plaintiff in the action against the original defendant where the joining party is solely liable to plaintiff, liable over to the joining party on plaintiff’s action, or jointly or severally liable with the joining party on the plaintiffs action.

Schladensky held that even if amended Rule 2252 applied, it would not be helpful to Attorney Ellis because he “failed to plead any facts giving rise to an independent cause of action on his part against Lift-0~Loft or Mobile.” 442 Pa. 471, 475, 275 A.2d 663. In contrast, Attorneys Sokolow and Salamon are arguing that the fraudulent conduct of Empire and Nolan affected their ability to properly advise their clients. Sokolow and Salamon have attempted to plead facts that would sustain a fraud or intentional and/or negligent misrepresentation action against additional defendants, Empire and Nolan. Joinder would be permitted on this independent cause of action under Rule 2252(a)(4) because that section allows joinder of a party who may be liable to the original defendant on any cause of action arising out of the transaction or occurrence upon which the plaintiffs action is based.

This court’s analysis in Goldman, supra., which relied on Schladensky, is inapposite as well. In Goldman, plaintiffs brought suit against their attorneys to recover damages which resulted from the attorneys’ failure to apprise plaintiffs of a defect in the title of land that they purchased. The attorneys failed to discover that a prior violation of a local ordinance by the sellers created a cloud on the title. The defect in the title forced plaintiffs to suspend its manufacturing operations on the purchased land. The attorneys joined the sellers of the land alleging that if plaintiffs were damaged, the negligence of the additional defendants in violating the ordinance and not notifying the plaintiffs or defendant attorneys caused the harm. The attorneys asserted that as a result of additional defendants’ negligence, the sellers were either solely liable to the plaintiff or liable over to the plaintiff or jointly and severally liable with the defendants to the plaintiff. We relied upon Schladensky and held that Rule 2252(a) precludes joinder of the additional defendants because the attorneys’ joinder complaint did not arise out of the cause of action declared upon by the plaintiff.

With respect to the amended section of Rule 2252(a) which allows joinder if the additional defendant may be liable to the joining party on any cause of action arising out of the transaction upon which the plaintiffs cause of action is based, we determined that it would be futile to grant the attorney defendants leave to amend their joinder complaint on remand so that they could allege the additional defendant’s liability to them for misrepresentation because, under the 1969 amendment of Rule 2252(a), they are still required to plead a valid cause of action and no valid cause of action was alleged against the additional defendants. Goldman. The complaint to join alleged that the additional defendants failed to notify the original defendant of the existence of the cloud on the title to the land purchased by plaintiffs. For this failure to be considered a valid cause of action, the additional defendants would have to be under an affirmative duty to reveal the existence of the defect on the title. Generally, neither buyer nor seller is under a duty to disclose material information in the absence of a positive misrepresentation or act of concealment. The buyer of property may maintain an action in deceit when the seller intentionally or negligently conceals defects in the title when he knows that the purchaser is unaware of the defects, however, such a right does not attach to the agent-attorney of the purchaser when the agent suffers a loss in reliance on the non-disclosure or concealment. Goldman. We commented further that it would be inappropriate to hold that attorneys may justifiably rely upon the representations of a layman as to his ability to convey a good title, especially where a title search would inform the attorney otherwise. Quoting Professor Prosser we stated:

[0]ne who has special knowledge, experience and competence may not be permitted to rely on statements for which the ordinary man might recover, and.... one who has acquired expert knowledge concerning the matter dealt with may be required to form his own judgment, rather than take the word of the defendant.

Goldman, 227 Pa.Super. 284, 289, 323 A.2d 891, 894.

The underlying transactions in Goldman and in the case before us both involve realty transfers. However, in Goldman, we stated that an attorney could not rely on the representations of a lay person regarding the ability to convey a good title especially where a title search would inform the attorney otherwise. In our case, Sokolow and Salamon assert that their advice to plaintiffs was based upon positive misrepresentations by Empire and Nolan that the language in the Agreement of Sale contained only the revisions authorized by Attorney Sokolow after he reviewed the document. In the joinder complaint, Sokolow alleges that these proposed changes to the Agreement of Sale did not include subordination language of the purchase money mortgage. Unlike the Goldman case where the vendor was not under a duty to disclose the existence of a cloud on the title to property, in the present case, if the original defendants can prove that additional defendants made a positive misrepresentation with respeet to material information, upon which they justifiably relied, then this would be a valid cause of action which can and should be joined pursuant to Rule 2252(a)(4). See Farland v. T & T Fishing Corp., 682 F.Supp. 700 (D.R.I.1988), aff'd, 907 F.2d 142 (1st Cir.1990) (An attorney for eight injured seamen elected not to intervene in an action brought by the ship’s owner against his insurer because the owner assured him that the seamen’s claims would be paid out of a settlement; when the seamen were not paid, they successfully sued the owner for fraud and the settlement was voided. The court stated that the plaintiffs attorney, acting in his capacity as agent for the plaintiffs, had justifiably relied on the defendant’s material misrepresentations when he decided not to intervene in the state action and when he failed to carefully monitor the progress of the settlement negotiations).

Schladensky and Goldman do not stand for the overbroad proposition as cited in the trial court’s opinion, and the court went beyond those cases in its conclusion that “joinder of a third party by an attorney on grounds of fraud or misrepresentation as to such matters will never be permitted in Pennsylvania.” (Trial ct. op. 8-3-93 at 11). In Goldman, the reason that joinder was not permitted was because an attorney could never plead a valid cause of action that he justifiably relied upon the representations of a layman instead of performing a title search. Determining whether a title is clear is within the special knowledge, experience and competence expected of an attorney. On the other hand, the attorneys in our case would not have special knowledge where the other party to an agreement made positive misrepresentations of fact about a clause in a contract that the parties never discussed or agreed upon. Having reviewed the complaints to join additional defendants we conclude that they are sufficient to state a cause of action against the additional defendants to permit joinder.

The underlying transaction involved the sale of real estate and the contract for that sale. It is claimed that the additional defendants misrepresented a clause in the agreement and based on this misrepresentation, there was reliance by the parties. The nature of this misrepresentation was not such that a lawyer could not rely. Therefore, the trial court erred in granting the preliminary objection of the additional defendants.

Order reversed, case remanded. The additional defendants are given 30 days following receipt by the trial court of the original record to answer the complaint to join. Jurisdiction relinquished.

      . Jack Gordon had been given a Power of Attorney by the other plaintiffs to act on their behalf in the real estate transaction.

      . This language is currently set forth at Pa.R.Civ.R. 2252(a)(4).


author: WIEAND, Judge.

text:
    642 A.2d 1103
    COMMONWEALTH of Pennsylvania v. Ernest MYERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1994.
    Filed May 26, 1994.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge.

On November 15, 1991, Ernest Myers, Jr. entered a negotiated plea of guilty to a charge of rape, in return for which the Commonwealth agreed to nol pros other charges and recommend a sentence of imprisonment for not less than three (3) years and not more than six (6) years. The plea was accepted after an extensive colloquy, and Myers was sentenced the same day in accordance with the plea agreement. On November 22, 1991, however, Myers filed a petition to withdraw his guilty plea, alleging that he was innocent of the rape charge and that his plea had been involuntarily entered because he had been under emotional distress at the time. Myers’ petition to withdraw his guilty plea was denied on June 30,1992, after hearing. A direct appeal was filed, but this was later dismissed for failure to file an appellate brief. Myers then filed a petition under the Post Conviction Relief Act, and, pursuant thereto, was granted leave to file an appeal nunc pro tunc. In his nunc pro tunc appeal, Myers argues that the trial court erred by denying his petition to withdraw his plea of guilty because he asserted his innocence and because the Commonwealth would not have been prejudiced thereby. After careful review, we affirm the judgment of sentence.

Where a defendant moves to withdraw a plea of guilty prior to the imposition of sentence, the motion should be liberally granted for any fair or just reason, so long as the Commonwealth will not be substantially prejudiced thereby. See: Commonwealth v. Forbes, 450 Pa. 185, 190-191, 299 A.2d 268, 271 (1973). Indeed, a defendant’s mere assertion of innocence may constitute a fair and just reason for allowing the pre-sentence withdrawal of a guilty plea. Commonwealth v. Forbes, supra at 191-192, 299 A.2d at 272. However, where a defendant seeks to withdraw a plea of guilty after sentence has been imposed, he must demonstrate that a manifest injustice will result if he is not allowed to withdraw the plea. ■See: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 346-347, 446 A.2d 591, 593 (1982).

Instantly, appellant did not move to withdraw his guilty plea until after sentencing. He argues, nevertheless, that the presentence standard should apply because he entered a plea of guilty and was sentenced on the same day and, thus, never had an opportunity to move to withdraw his plea prior to sentencing. We reject this argument. A similar argument was considered in Commonwealth v. Refile, 353 Pa.Super. 190, 509 A.2d 400 (1986), allocatur denied, 518 Pa. 655, 544 A.2d 1342 (1988), where the Superior Court reasoned as follows:

Pa.R.Crim.P. 320 provides that “[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” (Emphasis added.) Under this Rule, “ ‘[i]f the court finds “any just reason,” withdrawal of the plea should be freely permitted, unless the prosecution has been “substantially prejudiced.” ’ ” Commonwealth v. Middleton, 504 Pa. 352, 355, 473 A.2d 1358, 1359 (1984), quoting Commonwealth v. Forbes. 450 Pa. 185, 191, 299 A.2d 268, 271 (1973). A post-sentence motion to withdraw a plea pursuant to Pa.R.Crim.P. 321, on the other hand, will be granted only upon a showing of prejudice on the order of manifest injustice. Commonwealth v. Middleton, supra.
Appellant does not dispute that his request to withdraw the plea of guilty was made after sentence had been imposed. He argues, however, that he should have been permitted to proceed under the pre-sentence standards of Rule 320 because he was not given an opportunity to withdraw his guilty plea prior to the imposition of sentence. Appellant has cited no authority for the principle, implicit in his argument, that one who enters a plea of guilty must be given a period of ten days within which to reconsider his plea of guilty and file a motion to withdraw the plea before he can be sentenced. Our own research, similarly, has disclosed no support for such a principle of law. Rule 320 does not contain a mandatory waiting period before the imposition of sentence, and we discern no sound reason for reading the rule as implying such a requirement. Appellant’s argument to the contrary is rejected.

Id. 353 Pa.Super. at 192-193, 509 A.2d at 401-402. The Refile Court’s rationale is equally applicable to the instant case. In order to be permitted to withdraw his guilty plea after sen-fencing, therefore, it was essential that appellant demonstrate prejudice in the nature of a manifest injustice.

In Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc), allocatur denied, 528 Pa. 622, 597 A.2d 1151 (1991), the Superior Court observed:

“In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant.” Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). See also: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Muller, 334 Pa.Super. 228, 233-234, 482 A.2d 1307, 1310 (1984). “To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge.” Commonwealth v. Fenton, 388 Pa.Super. 538, 542, 566 A.2d 260, 262 (1989). See also: Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 895 (1989); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). However, “[o]nce a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him.” Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988); Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).

Id. 403 Pa.Super. at 469-470, 589 A.2d at 707.

The law does not require that a defendant be pleased with the outcome of his decision to enter a plea of guilty. All that is required is that the defendant’s decision to plead guilty be knowingly, voluntarily and intelligently made. Commonwealth v. Martin, 416 Pa.Super. 507, 512, 611 A.2d 731, 733 (1992).

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. See: Pa. R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include' inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).

Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989) (en banc). ■ “ ‘In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences.’ This determination is to be made ‘by examining the totality of the circumstances surrounding the entry of the plea.’ ” Commonwealth v. Fluharty, 429 Pa.Super. 213, 219, 632 A.2d 312, 314 (1993), quoting Commonwealth v. Broadwater, 330 Pa.Super. 234, 244, 479 A.2d 526, 532 (1984). “Therefore, ‘[wjhere the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established.’ ” Commonwealth v. Miller, 432 Pa.Super. 619, 630, 639 A.2d 815, 820 (1994), quoting Commonwealth v. Lewis, 430 Pa.Super. 336, 341, 634 A.2d 633, 635 (1993).

Our review of the record in the instant case discloses that, prior to accepting appellant’s guilty plea, the trial court engaged appellant in an extensive colloquy in which it was explained to him all of the rights he would be giving up by pleading guilty. During the colloquy, appellant denied that he had been threatened or coerced into pleading guilty and said that he was doing so of his own free will. When the trial court asked appellant a second time whether his decision to plead guilty had been a voluntary one, he responded, “Absolutely.” Thereafter, following the prosecutor’s summary of the factual basis for the plea, appellant, after a tearful hesitation, responded affirmatively that he had forced the victim to have sex with him. At the conclusion of the colloquy, however, the following occurred:

THE COURT: I see some people here besides the lawyers and the court personnel.
Do you mind telling me who you are?
MS. WILLIAMS: I’m his sister, Theresa Williams.
THE COURT: How old are you, ma’am?
MS. WILLIAMS: Thirty six.
THE COURT: And do you know of any reason why your brother would not be capable of understanding what he’s doing here today?
MS. WILLIAMS: I think he understands everything that’s going on here, and I think he feels as though he don’t have any choice, that he’s pressured into it — this is what he cried to me last night. That he said I going into this because I don’t have any choice, either way with this system I’m innocent but they are going to say I’m guilty. I told him, I said the only thing he can do is believe in the master of all masters and let heaven guide us and just tell the truth. If he didn’t do it I don’t care what nobody says, say he didn’t do it. And that’s the only thing he can do.

Appellant now argues that his own hesitation before admitting his guilt, combined "with his sister’s assertion that he had said he was innocent, demonstrated that his plea of guilty was not voluntarily entered. Therefore, he asserts, he should have been permitted to withdraw the plea. We disagree.

With respect to a defendant’s decision to plead guilty, the Pennsylvania Supreme Court has said:

A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However, the plea of guilt admits that the facts and intent occurred, and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have happened.
A defendant may plead guilty for any reason: to shield others, avoid further exposure, to diminish the penalty, to be done with the matter, or any secret reason that appeals to his needs. What is generally and most objectively accepted is that a plea is offered to relieve conscience, to set the record straight and, as earnest of error and repentance, to accept the penalty.

Commonwealth v. Anthony, 504 Pa. 551, 558, 475 A.2d 1303, 1307 (1984). The Supreme Court has also observed that:

The desire of an accused to benefit from a plea bargain which he requests his counsel to arrange has been viewed as a “strong indicator” of the voluntariness of the plea. Commonwealth v. Lee, 460 Pa. 324, 328, 333 A.2d 749, 750 (1975). See also Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971). Just as a defendant may decide, as a matter of strategy or expedience, to “voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime,” North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970), accord Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973); Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); Commonwealth v. Cottrell, 433 Pa. 177, 249 A.2d 294 (1969), so also may a defendant, as a matter of expedience, decide to accept a plea bargain offer solely to reap some benefit from the sentence recommendation reiterated to the judge at the time of the entry of the plea.

Commonwealth v. Shaffer, supra, 498 Pa. at 352-353, 446 A.2d at 596.

It is a well settled principle of law that “ ‘[a] criminal defendant who elects to plead guilty has a duty to answer questions truthfully.’ ” Commonwealth v. Cappelli, 340 Pa.Super. 9, 20, 489 A.2d 813, 819 (1985) (en banc), quoting Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976). Therefore, “[a] defendant will not be permitted to postpone the final disposition of his case by lying to the court concerning his culpability and thereafter withdraw his plea of guilty by contradicting his prior testimony and asserting innocence.” Commonwealth v. Cole, supra, 387 Pa.Super. at 335, 564 A.2d at 206. The mere fact that a defendant was “under pressure” at the time he entered a guilty plea will not invalidate the plea, absent proof that he was incompetent at the time the plea was entered. Commonwealth v. Egan, 322 Pa.Super. 71, 76-77, 469 A.2d 186, 189 (1983) (en banc).

The trial court in this case found that appellant’s plea of guilty had been knowingly, voluntarily and intelligently entered and that, therefore, there was no valid basis upon which to permit the post-sentence withdrawal thereof. The court more fully explained its reasons for denying appellant’s petition to withdraw his guilty plea as follows:

It is important to recognize that this Defendant was an active participant in the negotiations leading up to his guilty plea. The setting for the guilty plea colloquy — a robing room behind the courtroom — was selected by the Defendant. The colloquy itself ran to more than 40 pages of transcript, during which the Defendant asked many questions, and took nearly 90 minutes to conclude. Both plea and sentence' were molded to this Defendant’s particular needs. This is tangible evidence of the knowing, intelligent and voluntary participation of the Defendant in the proceedings.
Evidently, the Defendant was on Federal probation at the time of his guilty plea. The guilty plea in our Court would certainly constitute a violation of the Federal probation, for which additional prison time could be imposed. At the Defendant’s request, and with the Commonwealth’s approval, we included a provision in our sentence allowing state authorities to give the Defendant credit for any time served in Federal prison as a result of the probation violation.
During the colloquy, we explained the consequences of a guilty plea and the rights a Defendant gives up by pleading guilty.
We described the jury selection process, the burden of proof that the Commonwealth must carry in order to prevail, and the Defendant’s right to be tried by a jury of his peers.
The Assistant District Attorney reviewed the evidence that the Commonwealth would have presented had the case gone to trial. At each phase of the colloquy, the Defendant was asked if he understood the proceedings, and answered affirmatively.
The Defendant’s family was present during the guilty plea colloquy. Although the Defendant’s sister said on the record that she believed that her brother had been pressured into a guilty plea, the Defendant himself never said so, despite numerous opportunities to do so.
A Defendant need not be pleased with the outcome of his decision to plead guilty, Commonwealth v. Martin, Jr., [416 Pa.Super. 507] 611 A.2d 731 (Pa.Super., 1992). We believe that a Defendant can knowingly, intelligently and voluntarily plead guilty even when he believes that he is innocent. Such a Defendant, after evaluating the possible outcomes of a trial, may well conclude that a negotiated guilty plea is in his best interests, in view of the range of sentences that could be imposed after a trial and conviction.
We therefore find that the Defendant’s proclaimed innocence, even if true, has no bearing on the acceptability of his guilty plea.

Trial Court Opinion at pp. 2-4.

We agree with the trial court that appellant has not met his burden of proving that his guilty plea was involuntarily entered. He has not been able to demonstrate the manifest injustice necessary to permit him to withdraw the plea after sentence was imposed. The guilty plea colloquy in this case affirmatively establishes that appellant willingly and voluntarily agreed to plead guilty, after negotiating a favorable plea bargain, with full understanding of the consequences of his decision and of the rights he would be giving up by pleading guilty. During this colloquy, appellant admitted under oath that he had forced the victim to engage in sexual intercourse with him, as the Commonwealth had alleged in the information. He will not now be permitted to withdraw his plea by making a bald assertion that he was innocent of the charge to which he pleaded guilty. A defendant’s post-sentence recantation of guilt does not rise to the level of prejudice on the order of manifest injustice sufficient to require that he be permitted to withdraw his plea of guilty. See: Commonwealth v. Jackson, 330 Pa.Super. 144, 147, 479 A.2d 5, 6 (1984).

The judgment of sentence is affirmed.

      . During the guilty plea colloquy, it was agreed further that the sentence imposed upon appellant should be served concurrently with any sentence subsequently imposed for a violation of his federal probation which might result from his pleading guilty to the rape charge in the instant case.

      . Appellant also urges this Court to view his plea as one of nolo contendere, and, as such, to apply the more liberal presentence standard to his request to withdraw his plea. The record is clear, however, that appellant entered a plea of guilty. Moreover, even if we were to construe his plea as he has requested, appellant’s situation would not change. It is well settled that, “[i]n terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea.” Commonwealth v. Boatwright, 404 Pa.Super. 75, 83, 590 A.2d 15, 19 (1991).

      . This portion of the guilty plea colloquy appeared as follows:
      THE COURT: Mr. Myers, did you understand what the D.A. said?
      THE DEFENDANT: Some of it, yeah.
      THE COURT: What don’t you understand?
      THE DEFENDANT: Well, I understand all that she read but obviously—
      THE COURT: What do you disagree with?
      THE DEFENDANT: The way that which it was said.
      MS. SYNNESTVEDT [Assistant District Attorney]: Again I was just briefly summarizing.
      THE COURT: Do you agree that you forced [the victim] to have sex with you?
      THE DEFENDANT: (Pause) Yes.
      THE COURT: Let the record indicate that several minutes elapsed between the time I asked him the question and Mr. Myers answered yes during which time he was tearful. And I think it’s agreed on the record that no pressure was put on him to answer yes. Am I correct?
      MR. MAGGITTI [Defense Counsel]: That’s correct.