author:
ROWLEY, President Judge:
      BECK, Judge,

text:
    636 A.2d 661
    Deborah Lee LUPKIN, v. Gerald J. STERNICK, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1993.
    Filed Jan. 24, 1994.

      Frederick W. Ulrich, Asst. Public Defender, Harrisburg, for appellant.
    Frederick J. Fanelli, Pottsville, for appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK, JJ.
   ROWLEY, President Judge:

Gerald J. Sternick appeals from the order of the trial court granting appellee Deborah Lee Lupkin’s motion for a new trial. In this appeal, he challenges the propriety of that decision. After a thorough review of the record and the applicable case law, we affirm the order.

Appellant and appellee were involved in a motor vehicle accident on June 22, 1989 when appellant’s vehicle struck the rear end of appellee’s vehicle. On November 16, 1990, appellee filed a civil complaint against appellant seeking damages for injuries she sustained in the accident. At the outset of trial, appellant conceded the issue of liability, and the trial focused solely on the issue of damages. The jury returned a verdict for zero damages. The trial court granted appellee’s subsequent motion for a new trial, and appellant fled this timely appeal.

Appellant sets forth various reasons why the trial court erred in granting appellee’s motion for a new trial. In considering those arguments, we apply the following standard of review:

It is a fundamental and longstanding precept that the decision to order a new trial is one that lies within the discretion of the trial court. E.g. Spang & Co. v. United States Steel Corp., 519 Pa. 14, 24, 545 A.2d 861, 865 (1988); Colosimo v. Pennsylvania Electric Co., 513 Pa. 155, 163, 518 A.2d 1206, 1210 (1986); Smyth v. Philadelphia & West Chester Traction Co., 263 Pa. 511, 516, 107 A. 20, 21 (1919). This means that the trial court has considerable latitude within which to act, but there are also very specific limits to what it can do.
The term ‘discretion’ imports the exercise of judgement, wisdom and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgement, but where the judgement is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
P.L.E. New Trial § 2. One way of summing up all the qualities described in this definition of a valid exercise of discretionary power is to say that the decision had merit. Conversely, if the reason for performing a discretionary act had no merit, then the trial court abused its discretion. Thus, when viewed in terms of the degree of scrutiny that should be applied, an inquiry into an abuse of discretion is operationally equivalent as one into the merit of the trial court’s decision.

Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447-48, 625 A.2d 1181, 1184-85 (1993). If the trial court indicates that the reasons it gives for granting a new trial are the only basis for that decision, this Court can only examine those reasons. Id. at 448-19, 625 A.2d at 1185. In that situation, “circumstances may still demand a review of the entire record. However, the purpose for doing so is not to locate a valid reason for affirming the order. The inquiry is strictly directed at determining whether the trial court’s stated reasons and factual basis can be supported.” Id. at 452, 625 A.2d at 1187. This Court cannot substitute its judgment for that of the trial court. Botek v. Mine Safety Alliance Corp., 531 Pa. 160, 166, 611 A.2d 1174, 1176-77 (1992).

In the present case, the trial court stated its reasoning as follows: “Defendant offered no evidence that plaintiff did not suffer any injuries or that she did not suffer a wage loss. Thus, without evidence contradictory to the existence or to the initial cause of plaintiffs injuries, the jury was not free to reject plaintiffs claim.” Trial Court Order (McCloskey, P.J.) at 2.

In support of his assertion that the trial court erred, appellant first contends that the jury was free to disregard appellee’s complaints of pain because there was no objective medical proof to support those complaints. Initially, we note that, contrary to appellant’s assertion that there was no objective proof of pain other than appellee’s own complaints, Dr. James Barrett testified that during his examination of appellee’s neck he felt trigger points, or lumps of painful muscle tissue. He testified that if he feels a trigger point when examining a patient, he knows that the area should be painful, even if the patient does not tell him that he or she feels pain. Dr. Barrett also testified that he felt muscle spasms in appellee’s lower back. Additionally, Dr. Barrett testified that soft tissue injuries often do not show up on X-rays and other tests.

Moreover, not only did appellee herself present evidence of her injuries and resulting expenses, but appellant’s own expert medical witness, Dr. Stephen F. Latman, M.D., also testified to the existence of appellee’s injuries. He testified that after examining appellee and reviewing records and the results of tests he performed, he concluded that she suffered a soft tissue injury which normally takes from six weeks to three months to heal. He also testified, however, that he himself examined many patients who had soft tissue injury which resulted in chronic pain syndrome.

Furthermore, Dr. Latman testified that as of the date on which he examined appellee, June 17, 1991, he would recommend that she perform only light or sedentary work. Specifically, he testified, “[Sedentary work is] not strenuous work. I recommended that she would have the opportunity to sit or stand according to her symptoms and that she not be required to lift more than ten pounds.” Deposition Transcript of Dr. Stephen F. Latman, M.D., 11/18/91, at 51.

The circumstances of the present case are similar to those in another case considered by a panel of this Court. In Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992), the plaintiff was involved in an automobile accident with the defendant, and the defendant conceded liability and conceded that the plaintiff suffered a compression fracture of the L-3 vertebra. The jury, however, awarded zero damages. The plaintiff appealed, and this Court reversed.

The Court recognized that where pain is subjective and has no identifiable medical source, the jury must believe that the pain in fact exists before the plaintiff will be compensated. However, the Court discussed why that rule did not apply in Hawley:

While the jurors are the sole judges of credibility, and appellant’s inconsistent and perhaps exaggerated testimony could have been perceived as an indication of appellant’s interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury. As our Supreme Court stated in Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961): “It is true that the jury is the final arbiter of facts but it may not, in law, ignore what is patent to the eye, obvious to the mind and clear to the normal process of ordinary computation.” Id. at 332, 169 A.2d at 778-789. Based on the uncontested evidence of the compression fracture, we find that appellant suffered compensable pain from a known medical source which was more than a mere transient rub of life.

Id. 531 Pa. at 474, 611 A.2d at 313-14.

In the present case, the record reveals that not only did appellant’s own expert medical witness corroborate appellee’s claims that she had been injured, but he also testified that he would recommend restricted working conditions. Although appellant’s witness disagreed with appellee’s assertions concerning the severity of the injury, he did not contest the existence of an injury. Furthermore, as the above discussion in Hawley reveals, even if the jury believed appellant’s contention that appellee exaggerated her injuries, they were not free to award zero damages where there was an obvious injury. In light of the fact that appellant’s own witness testified that appellee had been injured to such a degree that she would require a sedentary job, the trial court did not abuse its discretion in determining that a new trial was warranted.

Appellant also argues, “[T]he fact that Ms. Lupkin was in a second and unrelated accident, where she rammed into the rear end of a stopped vehicle, provided an alternative basis for the jury to reason that her symptoms were unrelated to the first accident and the product of her own fault.” Appellant’s Brief at 26. This argument is based on the fact that appellee was involved in an accident on September 28, 1990. We disagree with appellant that the jury could reasonably have concluded that appellee’s injuries were caused, solely in the second accident.

First, appellant’s own witness testified that appellee’s injuries resulted from the accident which occurred on June 22, 1989. That testimony was not rendered irrelevant merely because appellee did not tell Dr. Latman about the second accident. As appellee testified, when her doctor examined her after the second accident, he determined that there was no change in her condition. Furthermore, once he knew about the second accident, Dr. Latman could have, but did not, change his conclusions. Similarly, Dr. Latman did not qualify his conclusions on the basis that he did not have the results of tests previously performed on appellee.

Moreover, appellee presented substantial evidence that she had been injured prior to September 28, 1990, including the need for an eight-day hospital stay immediately following the first accident and various medications and physical therapy throughout the months prior to the second accident. It would have been patently unreasonable for the jury to conclude that appellee’s medical problems which began on June 22, 1989 were caused by an accident which occurred on September 28, 1990.

Finally, appellant did not adequately question appellee’s wage loss claim merely because he presented evidence that the plant where she worked prior to the accident closed soon after the accident. The relevant inquiry in a personal injury action is whether and to what extent the plaintiffs economic horizons have been shortened. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991); Sherhan v. Besteder, 347 Pa.Super. 11, 500 A.2d 130 (1985). A plaintiffs wages immediately prior to the accident are an indication of his or her earning capacity if he or she had not been injured. Therefore, that evidence is relevant even though the plaintiff would not have that job even if the accident had not occurred. In the present case, it would have been unreasonable for the jury to conclude that appellee’s economic horizons had not been shortened merely because the plant where she worked prior to the accident had closed.

For the above reasons, we conclude that the trial court did not abuse its discretion in granting appellee’s motion for a new trial. We therefore affirm the order.

Order affirmed.

BECK, J., files a dissenting statement.

BECK, Judge,

dissenting.

The trial court summarized its rationale for granting a new trial as follows:

Defendant offered no evidence that plaintiff did not suffer any injuries or that she did not suffer a wage loss. Thus, without evidence contradictory to the existence or to the initial cause of plaintiffs injuries, the jury was not free to reject plaintiffs claim.

Trial Court Order, p. 2. I believe that the trial court abused its discretion in impliedly requiring the defendants to disprove damages, when the burden of going forward properly lies with the plaintiff, and I must dissent.

It is well established that the “duty of assessing damages is within the province of the jury, and as triers of fact, they weigh the veracity and credibility of the witnesses and their testimony.” Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446, 450 (1988) (quoting Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16, 22 (1985)). This is true where the plaintiffs evidence is uncontradicted by the defendant, or even where the defendant has presented no evidence at all. Brodhead v. Brentwood Ornamental Iron Co., 435 Pa. 7, 11, 255 A.2d 120 (1969); Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263, 1265 (1982).

The jury in this case was free to disbelieve the plaintiffs evidence of injury and its cause, and their verdict “should not be interfered with unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.” Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). In granting a new trial as to damages, the trial judge improperly substituted his own judgment for that of the jury, and this court should reverse. See Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971).

The defendant’s medical witness, Dr. Latman, testified that the plaintiff apparently suffered from “chronic pain syndrome”, a “condition which [sic] a patient has pain for a long period of time, and we cannot make a definite diagnosis. We can’t put our finger on what’s causing the pain.” Deposition of Stephen F. Latman, M.D., p. 56. This defense witness testified that there was no objective evidence of the plaintiffs injuries to support her subjective complaints of pain. The majority concedes that in such cases, before the jury may award damages, it has to believe that there is pain. Nonetheless, the majority have affirmed the trial court’s decision to vacate the jury’s verdict.

The majority relies upon Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992), for its holding. In Hawley, the plaintiff suffered a compression fracture of the L-3 vertebra, and the jury awarded zero damages. This court reversed because “the jury is not free to ignore an obvious injury.” Id. at 474, 611 A.2d at 313-14. The question in this case is whether plaintiffs alleged soft tissue injury was an “obvious injury” like the compression fracture in Hawley.

Our supreme court recently decided that injuries which “obviously” are accompanied by pain include a broken bone, stretched muscle, twist of skeletal system, injury to nerve, organ or function, and all consequences of injury traceable by medical science and common experience as sources of pain and suffering. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 518 (1988). If the injury is subjective, and has no known medical source, the jury “are not to be faulted ... if they do not believe all they are told and all that their common experience does not accept.” Id. The jury, as always, may believe “all, some, or none of the evidence, and with their verdict the matter ends.” Id. at 169, 542 A.2d at 519.

A low verdict is adequate, and no new trial is necessary, where the jury heard conflicting testimony on the degree of injury. Dawson v. Fowler, 384 Pa.Super. 329, 558 A.2d 565 (1989). Dr. Latman testified that the plaintiff exaggerated her symptoms, and that there were no objective observations of injury. Latman Deposition, 27, 57. There also was evidence that the plaintiff did not credibly describe her symptoms, and that the accident was minor. Latman Deposition, 14, 21-22; N.T. 2/4/89, 178. The record reveals similarly contrasting testimony with respect to the plaintiffs actual lost wages. N.T. 2/4/89, 119-22. Faced with the conflicting testimony of the witnesses, and their relative veracity and demean- or, the jury was permitted to disbelieve the plaintiffs claims. See Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984) (issue of whether plaintiff actually was suffering any pain and whether any such pain was caused by the defendants’ conduct is question for the jury).

Because I believe that the trial court’s grant of a new trial under the facts of this case was an abuse of discretion, I would reverse its order and reinstate the jury’s verdict.

      . Dr. Latman testified, "Chronic pain syndrome is a condition which a patient has pain for a long period of time, and we cannot make a definite diagnosis. We can’t put our finger on what’s causing the pain.” Deposition Transcript of Stephen F. Latman, M.D., 11/18/91, at 56.

      . We note that it was not established that appellee was at fault in the second accident.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    686 A.2d 666
    Robert LEIDIGH, Jr. and John R. Zonarich v. READING PLAZA GENERAL, INCORPORATED, T/A Reading Station Associates Limited Partnership, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Jan. 14, 1994.

      Anne E. Doliner, Lancaster, for appellant.
    Thomas R. Miller, Harrisburg, for appellees.
    Before DEL SOLE, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the January 21, 1993 order dismissing appellant’s post-trial motions. Appellant, Reading Plaza General Incorporated, t/a Reading Station Associates Limited Partnership (hereinafter “Reading Station Associates”), presents the following questions for our review:

A. WHETHER APPELLEE WAS ENTITLED TO RELY ON AN ALLEGED AGENT, WHERE APPELLEE FAILED TO EXERCISE REASONABLE DILIGENCE IN ORDER TO ASCERTAIN THE AUTHORITY OF THE AGENT, AND WAS ON NOTICE THAT THE AGENT HAD LIMITED AUTHORITY?
B. WHETHER AN OUT-OF-COURT STATEMENT WAS INADMISSIBLE WHEN IT WAS OFFERED FOR THE TRUTH OF THE MATTER ASSERTED AND THE INDIVIDUAL WHO CREATED AND AUTHORED THE DOCUMENT DID NOT TESTIFY DURING THE TRIAL?

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

The relevant facts, as stated by the trial court, are as follows:

In 1990, [appellees] had for sale a [sic] 1892 Jackson Sharpe railroad dining car. They contacted a Mr. Norman Jensen who acted on their behalf in locating prospective buyers.
In early 1990, Jensen informed [appellee] John Zonarich that he had prospective buyers. Prospective buyers were Steve Miller and Greg Boyle, an employee and limited partner of [appellant]. Negotiations for the car continued through early 1990. On April 6,1990, an Agreement of Sale was signed by Greg Boyle, a [limited] partner [of appellant] for the purchase of the car on behalf of [appellant].
By May of 1990, Greg Boyle, acting on behalf of [appellant], authorized and directed Norman Jensen to move the dining car. A check was executed by Ben Hauben, general partner of [appellant], as partial payment for the moving expense. [Appellant] had the car moved from Caladonia State Park.
By the Spring of 1991, [appellees] still had not been paid pursuant to the terms of the Sales Agreement for the dining car that [appellant] had taken possession of. [Appellees] brought this action in equity seeking specific performance. [Appellant] responded by alleging that Greg Boyle had no authority to bind [appellant] to the Agreements. An advisory jury trial held May 6 through May 8, 1992, found that [appellees] acted reasonably in believing Greg Boyle had authority to enter into an Agreement of Sale on behalf of [appellant]. It was also found that Ben Hauben, as general partner [of appellant], was aware of Boyle’s participation in the negotiation and purchase of the dining car.

Trial Court Opinion at 1-3. Thereafter, on June 17, 1992, the trial court accepted the jury’s findings and entered judgment in favor of appellees. Post-trial motions were filed and denied. This timely appeal followed.

I.

Appellant first contends that there was insufficient evidence to support a finding of apparent authority. We disagree.

Preliminarily, we point out that the scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Commonwealth Dept. of Environmental Resources v. Pennsylvania Power Co., 461 Pa. 675, 686, 337 A.2d 823, 829 (1975) (citations omitted). With this standard in mind, we will turn to the merits of appellant’s claim.

It is well-settled that “[a]pparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent authority he or she purports to exercise.” Turner Hydraulics v. Susquehanna Const., 414 Pa.Super. 130, 135, 606 A.2d 532, 534 (1992) (citation omitted). However, this court has not always required direct communication from the principal to the third party. Rather, this court has found apparent authority to be established with a showing of: (1) limited authority given to the agent by the principal; and (2) conduct of the agent which demonstrates to the third-party the agent’s apparent authority to bind the principal. See Turner.

After reviewing the evidence in a light most favorable to appellees, Robert Leidigh, Jr. and John R. Zonarich, as the verdict winners, we find that it supports a finding of apparent authority. First, the General Partner of appellant, Ben Hauben (hereinafter “Hauben”), testified that he did give Greg Boyle (hereinafter “Boyle”) the limited authority to enter into negotiations with parties interested in leasing space in Reading Station Project. N.T., May 6, 7 and 8, 1992, at 139. In fact, Boyle himself had previously bound appellant to two lease agreements. N.T. at 135. In addition, through his course of dealing with appellee Zonarich (hereinafter “Zonarich”), Boyle held himself out to Zonarich as having the apparent authority to bind appellant to the contract of sale of the dining car. See, e.g., N.T. at 23-24, 28, 32, 36. These negotiations resulted in the sending of two letters indicating appellant’s intent to purchase the dining car, N.T. at 24-27, a contract of sale signed by Boyle on behalf of appellant and appellant’s payment of relocation expenses for the dining car after the contract of sale had been completed. Clearly, Zonarich’s belief that Boyle had the apparent authority to bind appellant was reasonable. Hence, the evidence was sufficient to establish Boyle’s apparent authority.

Appellant asserts, nonetheless, that since Zonarich failed to ask Boyle whether he had the actual authority to bind appellant to the contract of sale, Zonarich was not entitled to rely upon Boyle’s apparent authority. We disagree. As appellant correctly points out, a “third party is entitled to believe [an] agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe.” Bolus v. United Penn Bank, 363 Pa.Super. 247, 262, 525 A.2d 1215, 1222 (1987) (citations omitted), appeal denied, 518 Pa. 627, 541 A.2d 1138 (1988) (emphasis added). In light of Boyle’s limited authority as well as his representations to Zonarich, we do not find it was unreasonable for Zonarich to rely upon Boyle’s apparent authority. Hence, this claim must fail.

Finally, appellant contends that as the registration of limited partnership put Zonarich on constructive notice that limited partners could not bind appellant to any agreements, Zonarich should have known that Boyle did not have the authority to bind appellant to the contract of sale. This argument is without merit. The partnership registration provides, in pertinent part, that “[n]o limited partner is [sic] his capacity as a Limited Partner shall take part in the conduct or control of the business of the partnership or have any right or authority to act for or bind the partnership.” N.T. at 130. Hence, Boyle has no authority to act for or bind the partnership by virtue of his status as limited partner. However, it is clear that the general partner has the ability to delegate his authority to a limited partner despite the registration’s limitation of authority. See, e.g., N.T. at 131. Hence, as the partnership registration does not indicate the extent to which Hauben may have delegated his authority to Boyle, we find. that Zonarich was justified in relying upon Boyle’s apparent authority despite Zonarich’s constructive notice of the partnership registration.

II.

Appellant next claims that the trial court erred in admitting into evidence the March 21, 1990 and March 27, 1990 letters of intent as they constituted inadmissible hearsay. We disagree.

It is well-settled that “ ‘[tjestimony as to an out of court statement, written or oral, is not hearsay if offered to prove, not that the content of the statement was true, but that the statement was made.’ ” Bachman v. Artinger, 285 Pa.Super. 57, 63, 426 A.2d 702, 705 (1981) (quoting Commonwealth v. Samuels, 235 Pa.Super. 192, 204, 340 A.2d 880, 886 (1975)) (citations omitted). The letters of March 21, 1990 and March 27, 1990 were introduced through appellees’ counsel’s questioning of Boyle and Zonarich. As to the questioning of Boyle, counsel for appellees withdrew his question upon appellant’s objection and, hence, there was no prejudice to appellant.

Regarding the questioning of Zonarich, counsel asked Zonarich whether the March 21, 1990 letter of intent and the revised March 27, 1992 letter of intent both indicated that a carbon copy had been sent to Hauben. Zonarich replied that they did. As appellees correctly point out, the document was not used to establish whether the letters of intent had been sent to Hauben but, rather, to demonstrate that Zonarich had been notified that copies of the letters had been sent to Hauben. Clearly, the questioning was intended to demonstrate that as Zonarich had been notified that a copy of the letter of intent was to be sent to the general partner, appellant’s reliance upon Boyle’s apparent authority was reasonable. Accordingly, as the letters were not offered for their truth, the trial court properly overruled appellant’s objections.

We affirm the order of the trial court.

Order affirmed.

      . The dining car was intended by Miller and Boyle to be used in completing the Reading Station Project, a project undertaken by appellant to build an outlet mall on the former Reading Railroad yards.

      . These letters also noted that carbon copies were sent to Boyle and Hauben.

      . The moving expenses were paid for with a check signed by Hauben on behalf of appellant. N.T. at 122, 124, 156, 159.

      . Moreover, even if Zonarich had asked Boyle whether he had the authority to bind appellant to the agreement of sale, from the trial court transcript, it appears that Boyle thought that he did have the authority to enter into the agreement on behalf of appellant. Therefore, any failure to ask Boyle about his authority would have been inconsequential. See N.T. at 119, 126-27.

      . As mentioned above, the general partner, Hauben, authorized Boyle to both enter into leasing negotiations with interested parties and, on two occasions, bind appellant to lease agreements.


author: ROWLEY, President Judge.

text:
    636 A.2d 669
    CITY OF CARBONDALE, v. PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Theresa LAGUZZI, Sharon Llewelyn, Alma Fairburn, Joseph Plonski, and Beatrice Plonski.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1993.
    Filed Jan. 25, 1994.

      John R. O’Brien, Scranton, for appellant.
    Harry T. Coleman, Scranton, for City of Carbondale, appellee.
    Thomas J. Ratchford, Jr., Scranton, for appellees.
    Before ROWLEY, President Judge, and OLSZEWSKI and BROSKY, JJ.
   ROWLEY, President Judge.

On April 4, 1991, a verdict in the amount of $233,340.00, including delay damages, was entered against appellee, the City of Carbondale (“the City”), and in favor of appellees Theresa Laguzzi et al., in an action captioned Becker v. City of Carbondale, and docketed in the Court of Common Pleas of Lackawanna County at No. 89 Civil 1848. The City then filed the present declaratory judgment action against its insurance carrier, the Pennsylvania Insurance Guaranty Association (“P.I.G.A.”), appellant. The individual appellees (i.e., the successful plaintiffs in the Becker action) intervened in this action, and the City obtained a declaratory judgment that P.I.G.A. was required to pay the amount of the verdict entered against the City in the Becker lawsuit. Settlement negotiations ensued, and an agreement was allegedly reached. The agreement was not put in writing; included in the record is a letter from counsel for the individual appellees setting forth what he believed to be the terms of the agreement.

On April 20, 1993, the allegedly agreed-upon payments not having been made by P.I.G.A. despite requests by counsel for the individual appellees, the individual appellees, with the City’s concurrence, filed a motion for summary enforcement of the alleged settlement agreement. In an order entered that same day, the trial court granted the motion and specified the amounts to be paid by P.I.G.A. to each of the individual appellees within seven days of the order. Judgment was subsequently entered in accordance with the terms of the order.

In this timely appeal from the judgment of the trial court, P.I.G.A. asserts that because there was a dispute as to “whether counsel reached an oral agreement for the payment of $220,000.00 in full settlement of all claims” (Brief for Appellant at 6), the trial court erred in granting the motion for summary enforcement absent an evidentiary hearing and findings of fact on the issue of whether a settlement had been reached. Therefore, P.I.G.A. contends, the trial court’s order should be vacated and the case remanded for further proceedings. For the reasons set forth below, we disagree and, accordingly, affirm the judgment entered in the trial court.

In support of its claim, P.I.G.A. relies on this Court’s opinion in Christian v. Allstate Insurance Company, 348 Pa.Super. 252, 502 A.2d 192 (1985), and cases cited therein. In that case, this Court held that

[wjhere the pleading raises an issue of fact relative to a purported settlement, the trial court must conduct an evidentiary hearing; and where the court fails to do so,.its failure is not waived by a party’s failure to object. The court may be required to determine if an offer to settle was tendered, if it was accepted, if counsel had authority to act, the terms of the settlement and possibly other matters. This the court neglected to do. Its failure is not waived because no party requested a hearing. The matter cannot be decided without one.... Here, the trial court made findings without a record in the face of disputed factual allegations. We must reverse and remand the case for a full evidentiary hearing on the existence of the disputed settlement.

Id. at 255-56, 502 A.2d at 194 (emphasis added). P.I.G.A. contends that such is the case here, as “[t]he allegations [in the motion for summary enforcement of the settlement agreement] were not verified. The Motion was presented to the Court and counsel for all parties were present. There was no record taken of the proceedings, and the Court did not require an evidentiary hearing” (Brief for Appellant at 7).

What is also missing from the record, however, is an answer to the motion for summary enforcement, or any other indication that the existence of a settlement agreement was disputed by P.I.G.A. at the trial court level. Moreover, while P.I.G.A. asserts in its brief that a dispute as to the existence of a settlement agreement arose after P.I.G.A. made its initial offer, the brief does not indicate when or if P.I.G.A. brought this dispute to the attention of the trial court. Appellees maintain that no material issues were in dispute, no answer was filed to the motion for summary enforcement, and counsel for P.I.G.A. failed to oppose the motion when it was presented to the trial court. What happened, according to appellees, is that “[P.I.G.A. then] had a change of heart and instructed its attorney to ‘take an Appeal’ ...” (Brief for Appellees at 5). According to appellees, the heart of the matter is not that P.I.G.A. failed to request an evidentiary hearing or findings of fact, but that P.I.G.A. did not bring the alleged dispute to the trial court’s attention in any fashion whatsoever.

This Court held in Christian v. Allstate, supra, that “it is for the trial court to hold a hearing on the existence of the settlement as a matter of judicial procedure to resolve disputed issues and not at the request of one of the parties.” Id. at 254, 502 A.2d at 194. We decline to impose such an obligation upon the trial court, however, if it is not apparent from the record that the court was informed of the existence of disputed issues concerning the settlement. In Christian v. Allstate, the appellant, in an answer to the enforcement petition, denied the existence of a settlement. In Limmer v. Country Belle Cooperative Farmers, 220 Pa.Super. 171, 286 A.2d 669 (1971), and Houston-Starr Company v. Virginia Manor Apartments, Inc., 294 Pa.Super. 571, 440 A.2d 613 (1982), also relied upon by P.I.G.A., it is also evident that the trial court was made aware that there was a dispute concerning the alleged settlement. Because such is not the case here, we affirm the judgment entered in accordance with the trial court’s order of April 20, 1993.

Judgment affirmed.

      . Although the motion was not filed until April 20, 1993, the certificate of service attached to the motion indicates that it was served upon opposing counsel by U.S. mail on April 15, 1993.

      . P.I.G.A. has failed to include in its brief a statement of the question presented. Although the nature of the question is apparent from the argument section of the brief, and we will therefore address it, we caution counsel for P.I.G.A. to comply with Pa.R.A.P. 2116(a) in the future.


author: WIEAND, Judge.

text:
    636 A.2d 671
    In re Larry M. MALONEY. Appeal of Larry M. MALONEY.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1993.
    Filed Jan. 27, 1994.

      Gregory T. Moro, Bloomsburg, for appellant.
    Before ROWLEY, President Judge, and WIEAND and BROSKY, JJ.
   WIEAND, Judge.

Larry M. Maloney sought to file a private criminal complaint, pursuant to Pa.R.Crim.P. 133, against Dr. Mark Pyles, charging Pyles with aggravated assault, simple assault, recklessly endangering another person and making a terroristic threat. The District Attorney of Columbia County refused to approve Maloney’s complaint. In support of his action, the District Attorney cited insufficient evidence, insufficient probable cause and insufficient corroboration. Maloney then petitioned the Court of Common Pleas of Columbia County to approve a private criminal complaint. The court, after hearing, entered an order affirming the District Attorney’s dismissal of Maloney’s private criminal complaint. This appeal followed.

The charges which appellant wanted to bring against Dr. Pyles arose from an incident which had occurred at or about 2:55 p.m. on October 24, 1992. As appellant and a friend were driving north on Route 93 in Briar Creek Township, Columbia County, appellant observed a vehicle following him at a distance which he deemed inadequate. After the following car had remained close for the next mile and a half, appellant stopped his vehicle in the middle of the highway and, while blocking traffic, got out of the car and approached the following vehicle, with hands in the air and shouting, “What the hell is the problem?” Dr. Pyles, the driver of the following vehicle, pointed a gun at appellant through the windshield of his car and said, “Get the fuck out of here.” Appellant thereupon returned to his car. When Dr. Pyles passed his vehicle, appellant followed and obtained the number of .the license plate. Both state and township police, upon being told of the incident, declined to file charges.

Approval of private criminal complaints is required by Pa. R.Crim.P. 133, which provides as follows:

(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.
(b) If the attorney for the Commonwealth
(1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval;
(3) Does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a complaint is pending before an attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and, when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond.

Regarding this rule, the Superior Court has observed:

In determining whether to approve or disapprove a private criminal complaint, the district attorney may rely on either a legal assessment of the complaint, or wholly discretionary matters of policy. Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989). When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion. Commonwealth v. Pritchard, 408 Pa.Super. 221, 596 A.2d 827 (1991). See also In Re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1985) (quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980)) (prosecutorial discretion may depend on policy matters wholly apart from the existence or non-existence of probable cause; courts are wary of supervising exercise of such discretion). When the district attorney bases a dismissal solely on a lack of evidence, however, this Court will apply a de novo standard of review because such a decision is not entitled to the same deference afforded a policy decision not to prosecute, even where a prima facie case exists. Commonwealth v. Benz, supra [523 Pa.] at 208 n. 4, 565 A.2d at 767 n. 4.

The special deference extended to a policy decision not to prosecute arises from the deference accorded the discretionary use of executive powers conferred in the district attorney. Id. The power to approve or disapprove private criminal complaints granted under Pa.R.Crim.P. 133 to the district attorney is consistent with the authority which that office regularly exercises in deciding to initiate or discontinue prosecutions. In re Petition of Piscanio, 235 Pa.Super. 490, 494, 344 A.2d 658, 660 (1975).

Commonwealth v. Jury, 431 Pa.Super. 129, 136, 636 A.2d 164, 168 (1993).

The complaint which appellant submitted for approval contained the following affidavit of probable cause:

OCTOBER 24, 1992 — APPROXIMATELY 2:55 P.M.
I WAS DRIVING NORTH ON ROUTE 93 IN BRIAR CREEK TOWNSHIP WHEN I NOTICED A CAR TAILGATING ME. THIS CONTINUED FOR APPROXIMATELY 2 MILES. I THEN BRAKED & SLOWED DOWN BECAUSE I WAS APPROACHING MY TURNOFF. THE AUTOMOBILE PROCEEDED CLOSER. I STOPPED MY CAR — UNAWARE OF A PROBLEM— AND ADVANCED TOWARD THIS VEHICLE. THE DRIVER OF THE CAR, DR. MARK PYLES, PULLED A GUN, POINTED IT DIRECTLY AT ME & CURSED. I IMMEDIATELY GOT BACK INTO MY CAR. WHILE THE DEFENDANT PASSED ME, I GOT HIS LICENSE NUMBER, ADJ5580.

After careful review, we conclude that the District Attorney could properly find the absence of cause to prosecute Dr. Pyles for .aggravated assault in violation of 18 Pa.C.S. § 2702(a)(1) or (4), simple assault in violation of 18 Pa.C.S. § 2701(a)(1) and recklessly endangering another person in violation of 18 Pa.C.S. § 2705. However, there was probable cause and also prima facie evidence to support a prosecution for simple assault under 18 Pa.C.S. § 2701(a)(3) and making a terroristic threat under 18 Pa.C.S. § 2706.

The Crimes Code, in pertinent part, defines the crimes of simple and aggravated assault as follows:

(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; [or]
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S. § 2701(a)(1) and (3); and:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or]
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon....

18 Pa.C.S. § 2702(a)(1) and (4).

In Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183 (1993), the Superior Court observed that “the mere act of pointing a gun at another person is not sufficient to support a conviction for aggravated assault. Something more is required in order to establish a specific intent to cause injury to the person at whom the gun is being pointed.” Id. at 370, 627 A.2d at 187. However, the act of pointing a gun at another person “[can] constitute a simple assault as an ‘attempt[ ] by physical menace to put another in fear of imminent serious bodily injury.’ ” Commonwealth v. Savage, 275 Pa.Super. 96, 103, 418 A.2d 629, 632 (1980), quoting 18 Pa.C.S. § 2701(a)(3).

In the instant case, there did not appear to be any evidence that Dr. Pyles attempted to cause bodily or serious bodily injury to appellant. Because there was no actual injury, a violation of sections 2701(a)(1), 2702(a)(1) and 2702(a)(4) required a specific intent to cause injury. See: Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991); In the Interest of J.L., 321 Pa.Super. 175, 177-178, 475 A.2d 156, 157 (1984). This intent may not be inferred from the mere act of pointing a gun at another person. Commonwealth v. Sanders, supra; Commonwealth v. Savage, supra.

It does appear, however, that the facts recited by appellant in his affidavit, if proved, would establish a prima facie case of simple assault in violation of 18 Pa.C.S. § 2701(a)(3).

The crime of recklessly endangering another person is defined by statute as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705. To sustain a conviction under this statute, the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340 (1978) (en banc). “Danger, and not merely the apprehension of danger, must be created.” Id. Thus, in Commonwealth v. Smith, 292 Pa.Super. 443, 447-448, 437 A.2d 757, 759 (1981), the Superior Court held that, absent evidence a gun held by the defendant was loaded, there was insufficient evidence to sustain a conviction for recklessly endangering another person. It would appear, therefore, that in order to obtain a conviction for recklessly endangering another person, the Commonwealth must “ ‘prove actual present ability to inflict death or serious bodily harm by showing either that the gun was loaded or the surrounding circumstances were inherently dangerous.’ ” Commonwealth v. Baker, 287 Pa.Super. 39, 45, 429 A.2d 709, 711 (1981), quoting opinion of the trial court. See also: Commonwealth v. Gouse, 287 Pa.Super. 120, 124, 429 A.2d 1129, 1131 (1981) (“[T]he pointing of an unloaded weapon, without more, does not constitute recklessly endangering.”). Compare: Commonwealth v. Rivera, 349 Pa.Super. 303, 306-307, 503 A.2d 11, 12-13 (1985) (en banc) (evidence that gun was pointed at victims during a robbery was sufficient to support inference that the robbers had actual ability to inflict death or serious bodily injury even though Commonwealth failed to show by direct evidence that the gun was loaded).

Instantly, the facts recited by appellant do not include an averment that the gun was loaded. The affidavit does not otherwise establish that Dr. Pyles had the ability to inflict upon appellant death or serious bodily injury. The District Attorney, therefore, could conclude that there was no prima facie case that Dr. Pyles had recklessly endangered another person.

The Crimes Code defines the crime of making a terroristic threat in the following manner:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706. The Superior Court has observed:

“The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706, Official Comment-1972. See: Commonwealth v. Anneski, 362 Pa.Super. 580, 585, 525 A.2d 373, 376 (1987); Commonwealth v. Kidd, 296 Pa.Super. 393, 397, 442 A.2d 826, 827 (1982). “ ‘The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security.’ ” Commonwealth v. Speller, 311 Pa.Super. 569, 573, 458 A.2d 198, 200 (1983), quoting Commonwealth v. Hardwick, 299 Pa.Super. 362, 365-366, 445 A.2d 796, 797 (1982). Therefore, “[i]t is the making of the threat with intent to terrorize that constitutes the crime.” Commonwealth v. Anneski, supra at [362 Pa.Super.] 587, 525 A.2d at 376. See also: Commonwealth v. White, 232 Pa.Super. 176, 183-184, 335 A.2d 436, 439 (1975).
To obtain a conviction for making a terroristic threat, the Commonwealth must prove that: (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing or with reckless disregard for the risk of causing terror. See: Commonwealth v. Lumpkins, 324 Pa.Super. 8, 12, 471 A.2d 96, 98 (1984); Commonwealth v. Ferrer, 283 Pa.Super. 21, 23, 423 A.2d 423, 424 (1980). It has been observed that “ ‘even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce.’ ” Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979), quoting Model Penal Code, § 211.3, TentDraft No. 11 at p. 9 (1960). See also: Commonwealth v. Chance, 312 Pa.Super. 435, 443, 458 A.2d 1371, 1375 (1983). Moreover, “it is unnecessary for [the defendant] to specifically articulate the crime of violence which he or she intends to commit where the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement.” Commonwealth v. Hudgens, 400 Pa.Super. 79, 90, 582 A.2d 1352, 1358 (1990).

Commonwealth v. Campbell, 425 Pa.Super. 514, 521-522, 625 A.2d 1215, 1218-1219 (1993).

Here, appellant’s allegation that Dr. Pyles pointed a gun at him and told him to “get the fuck out of here” was sufficient to establish a prima facie case of making a terroristic threat. The words spoken, combined with the pointing of the gun, suggest a threat that appellant would have been shot if he did not leave as Dr. Pyles had commanded. Cf. Commonwealth v. Wintz, 1 D. & C.4th 299 (Bucks Co.1988) (defendant’s act of pointing a shotgun at occupants of a passing vehicle supported conviction for making a terroristic threat, even absent any verbal threat; conduct designed to express threat was sufficient communication under 18 Pa.C.S. § 2706).

The trial court’s refusal to approve a private prosecution was based also on policy reasons which the court deemed compelling. Thus, it said,

Although we are troubled by the fact that anyone should go unprosecuted for displaying a handgun in a menacing manner our review of the exercise of the District Attorney’s prosecutorial discretion in this instance does not permit a finding of “gross abuse”. The District Attorney could quite rightfully have concluded that the Defendant was justified by Appellant’s conduct in protecting himself by his display of the weapon and would not have been able to achieve a conviction.
The District Attorney has an obligation to achieve justice and the responsibility to the public to prevent the misuse of judicial and prosecutorial personnel in the pursuit of futile convictions. His decision to disapprove this private complaint, although troubling to this Court must under the law be affirmed by virtue of the Appellant’s failure to demonstrate a “gross abuse of discretion”.

Trial Court Opinion at pp. 2-3.

The Superior Court, in Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980), observed:

Whether to charge a person with a criminal offense depends upon the exercise of prosecutorial discretion. This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence or nonexistence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the District Attorney in the exercise of his discretion in controlling criminal prosecutions. United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. See also: A.B.A. Standards Relating to the Prosecution Function and the Defense Function § 3.4.
In Piscanio Appeal, 235 Pa.Super. 490, 494-96, 344 A.2d 658, 660-62 (1975), this Court said: “The power granted the district attorney under Rule 133(B) to approve or disapprove private criminal complaints is consistent with the authority regularly exercised by that office in deciding whether to initiate or to discontinue prosecutions.... In addition, Rule 133(B) protects the interest of the private complainant by allowing for the submission of the disapproved complaint to a judge of a court of common pleas. The judge’s independent review of the complaint checks and balances the district attorney’s decision and further hedges against possibility of error----
“... The [private] prosecutor ... even as a victim ... has no legitimate interest, other than as a member of the general public, in seeing a violator of the laws brought to justice by the Commonwealth and punished for his misdeeds. If a private prosecutor feels individually harmed his remedy is a civil suit for damages.”

Id. 276 Pa.Super. at 545-546, 419 A.2d at 592-593.

In this case, the existence of probable cause to prosecute was diminished by the circumstances giving rise to Dr. Pyles’ actions. Appellant’s vehicle had been stopped on the highway directly in the path of the vehicle being driven by Dr. Pyles. An angry appellant, with arms flailing, had approached the Pyles vehicle and had asked, “What the hell is the problem?” Under these circumstances, the strong possibility of a finding of justification or self-defense may have suggested that prosecution would have been a waste of prosecutorial and judicial resources. Such a determination cannot be deemed a gross abuse of discretion.

The order of the trial court, therefore, will be affirmed.

Order affirmed.


author: DEL SOLE, Judge.

text:
    636 A.2d 677
    Christopher STEINBERG, Appellee, v. 7-UP BOTTLING COMPANY OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1993.
    Filed Jan. 27, 1994.

      Patricia Q. Imbesi, Philadelphia, for appellant.
    Brad K. Robbins, Melrose Park, for appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge.

Appellee brought an action against his former employer seeking to recover for what he alleged was a breach of an employment agreement. The trial court found in favor of Appellee and awarded him the sum of $6,870.00. The employer appeals the Judgment which was entered in this amount contending that Appellee presented insufficient evidence to rebut the “at will” employment presumption, and alternatively that if the court properly found in favor of Appellee, it erred in its award of damages.

The threshold inquiry in a discharge dispute concerns whether the employment was at-will. Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986). In the case at hand the trial court found that Appellant rebutted the at-will presumption. In viewing the events which lead to Appellee’s hire the court stated that “under any understanding, the reasonable expectation [was] that Mr. Steinberg would be given a reasonable opportunity to prove that he could do the job.” The court also found that Appellee furnished additional consideration “to the extent that he would be given a fair evaluation.” Concluding that Appellant did not provide a fair evaluation and gave Appellee “virtually no opportunity to learn,” when it terminated his employment after a day and a half, the court ruled that there existed “a breach of a reasonable expectation of an employment contract to give [Appellee] a fair chance to demonstrate that he could do the job.”

When asserting that there exists an employment contract for a reasonable time, a party must establish “something in the nature and circumstances of the undertaking which would create such an inference.” Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986).

It is the intention of the parties which is the ultimate guide, and, in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject matter of the agreement.

Id. at 193, 504 A.2d 306.

In this case there was evidence produced that in response to an advertisement, Appellee was called in for an interview with two employees of Appellant company. Appellee presented his interviewers with his resume and they spoke at length about the position and Appellee’s background. The trial court made a finding, which is supported by Appellee’s testimony and therefore which will not be disturbed on appeal, that Appellee accurately and reasonably presented his qualification and made himself available for any and all evaluations that his prospective employer wished him to undergo. The court also found that Appellant was aware that Appellee was a young man just starting out in his career who would be leaving a relatively stable job to join the Appellant company. The court’s ultimate finding was that the parties had an agreement that Appellee would be given a reasonable opportunity to prove that he could do the job.

When an appellate court reviews the findings of a trial judge, the evidence is viewed in the light most favorable to the victorious party with all the evidence and proper inferences favorable to that party taken as true. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 440 A.2d 609 (1982). These findings may not be disturbed on appeal unless predicated upon error of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Company, 284 Pa.Super. 260, 425 A.2d 803 (1981). Here, there is evidence to support the trial court’s factual finding, as well as its conclusion, that the parties had an agreement that Appellee would be hired for a trial basis, which meant a reasonable trial basis. We also find no error in the court’s ruling that one and one half days is not a reasonable trial basis under the circumstances of this case.

Finding support for the court’s determination that Appellant breached an employment agreement which provided that Appellee would be given an reasonable opportunity to perform, we turn now to Appellant’s contention that the court’s award of damages in the amount of $6,870.00 was improperly calculated. Appellant contends that the court erred when, in formulating its award, it considered the amount of time Appellee was unemployed following his discharge. Appellant was hired to work for $15,000.00 per year. The court’s award amounted to nearly six months of salary. Interestingly this figure corresponds to the amount of time Appellant was out of work before securing new employment. Thus, it appears that the court may have considered how long it took for Appellee to obtain a new job when it calculated damages. We do not find this to be inappropriate.

Appellee was hired on a trial basis to provide him with an opportunity to learn his job, yet he was terminated in less than two days. If Appellant were provided with an reasonable opportunity to perform in the work environment he may have been able to work to the satisfaction of his employer. Appellant’s failure to provide him with this reasonable time period resulted in a loss of opportunity for Appellee. Further, the trial court found that Appellant was aware when hiring Appellee, that he was a young man starting his career and that employment for less than two full days would be a “blot” on his career which would have to be ignored in all future employment applications, or explained. Appellant’s failure to allow Appellee to prove himself, necessitated a period of unemployment, a loss of opportunity, the costs of finding new employment under these stated conditions and the rigors and uncertainty associated with securing a new position. Under these circumstances we find no fault with the court’s award which amounted to approximately six months salary. When breaching the agreement to provide Appellee with a reasonable opportunity to perform, Appellant could have expected Appellee to suffer these losses as a result of its actions.

Judgment affirmed.


author: HUDOCK, Judge.

text:
    636 A.2d 679
    Randy J. WAGNER, Appellant, v. ORIE & ZIVIC, and John R. Orie, Jr., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed Jan. 27, 1994.

      Mark E. Milsop, Pittsburgh, for appellant.
    Christopher Rulis, Pittsburgh, for appellees.
    Jeffery B. Albert, Philadelphia, Pennsylvania Defense Inst, for amicus.
    Before TAMILIA, HUDOCK and CERCONE, JJ.
   HUDOCK, Judge.

The sole issue presented in this appeal is whether Rule 238 of the Pennsylvania Rules of Civil Procedure provide for delay damages to be awarded in a legal malpractice action where the underlying claim resulted from improper handling of a personal injury claim. We hold that delay damages are not applicable to such a claim and therefore, affirm the judgment of the lower court.

Randy Wagner (Appellant) suffered physical injuries resulting from a work-related accident when an improperly packaged metal panel landed on his foot. Appellant retained Appellees, Orie and Zivic, a professional association, for the purpose of representing him in a personal injury action against the manufacturer, distributor, and/or shipper of the metal panel. However, Appellees never filed the complaint and the applicable statute of limitations expired. Appellant sued Appellees for legal malpractice, and, after a jury verdict, was awarded an amount of thirty-three thousand ($33,000) dollars. Appellant timely filed a motion requesting that the trial court mold the verdict to award damages for delay in the amount of one thousand nine hundred thirty-five and 75/100 ($1,935.75) dollars pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure. This motion was denied, and this direct appeal followed.

Appellant argues that this Court should grant Appellant’s motion for delay damages on the basis of the Commonwealth Court’s holding in Loeffler v. Mountaintop Area Joint Sanitary Authority, 101 Pa.Cmwlth. 514, 516 A.2d 848 (1986). In Loeffler, the plaintiffs received a verdict of $15,000 against a contractor who had caused damage to their property. The plaintiffs were unable to collect from the contractor because the contractor was self-insured and had filed for Chapter 11 bankruptcy. Loeffler, 516 A.2d at 849. Subsequently, the plaintiffs instituted suit against the sewer authority based upon the sewer authority’s failure to assure that the contractor had adequate liability insurance. A verdict was entered in favor of the plaintiffs. On appeal, the Commonwealth Court directed an award of delay damages, stating:

... Pa.R.C.P. No. 238 expressly identifies its coverage in terms of the “relief’ involved, not the underlying cause of action. Although the Loefflers proceeded against the authority upon the basis of the authority’s failure to require an independent contractor to maintain adequate insurance, the damages which they sought, $15,000, measured by the amount of their property’s loss in value, is the amount required to make them whole. Thus, the monetary relief which their action sought, and obtained, was definitely for— and measured by — “property damage.”

Id. at 851.

In the instant case, Appellant urges us to apply the reasoning of Loeffler to justify an award of delay damages. Appellant claims that “[i]n both cases, the Defendants’ failure to take action had the effect of destroying the Plaintiffs’ ability to collect damages from the parties responsible for actually inflicting the harm confronted by the Plaintiff.” Appellant’s Brief, p. 11.

We find Appellant’s argument to be without merit. In Rizzo v. Haines, 357 Pa.Super. 57, 515 A.2d 321 (1986), aff’d., 520 Pa. 484, 555 A.2d 58 (1989), this Court held that delay damages are not appropriate in legal malpractice cases despite the fact that the underlying claim was for the type of injury enumerated in Rule 238. In Rizzo, the plaintiffs received compensatory and punitive damages in a legal malpractice action based upon improper settlement negotiations in a personal injury action. On appeal, the plaintiffs requested that delay damages be added to their verdict. This Court denied the delay damages, holding:

Rule 238 provides for an award of damages “in an action seeking monetary relief for bodily injury, death or property damage____” While we recognize that the underlying cases which precipitated the instant action were both personal injury cases, the instant case was an action for legal malpractice. The rule is explicitly limited by its own language, and we therefore, do not find it applicable to a legal malpractice action.

Rizzo, 515 A.2d at 325. In a separate opinion by Judge Popovich, it was added that “the Rule has not been extended to encompass such circumstances, being restricted instead to situations where a defendant causes bodily injury, death or property damage.” Id. at 326 (emphasis in original).

In the case before us, Appellant’s injuries were caused by the metal panel landing on his foot, not the failure of counsel to promptly file a complaint. Therefore, Appellees did not cause the bodily injury for which Appellant seeks to be compensated. The legal malpractice action is a separate and distinct claim, so the “relief’ sought by Appellant does not fall into the clear mandates of Rule 238. In Loeffler, the sewage authority was contractually associated with the contractor who caused the damages and was, therefore, liable for any property damages that the plaintiffs sustained. Thus, the Loefflers were actually seeking relief for property damages.

Because of the clear statement of the law set forth in Rizzo, supra, delay damages pursuant to Rule 238 are not appropriate in legal malpractice actions.

Judgment affirmed.

      . Awarding of delay damages is governed by Rule 238 of the Rules of Civil Procedure, which provides in pertinent part:
      Rule 238. Damages for Delay in Actions for Bodily Injury, Death or Property Damage
      (a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, ... and shall become part of the verdict, decision or award.
      Pa.R.C.P., Rule 238, 42 Pa.C.S.

      . We note that the Pennsylvania Defense Institute has filed an Amicus Brief on behalf of Appellees in this matter. We agree that to extend delay damages to legal malpractice cases would be to override the purpose of Rule 238, which is to encourage defendants in personal injury actions to offer realistic settlement amounts.


author: TAMILIA, Judge:

text:
    636 A.2d 1118
    COMMONWEALTH of Pennsylvania v. Daniel K. NICODEMUS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1993.
    Filed Dec. 3, 1993.
    Reargument Denied Feb. 15, 1994.

      James A. Ashton, Pittsburgh, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for Com., appellee.
    Before ROWLEY, President Judge, and TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

Appellant, Daniel K. Nieodemus, appeals from the September 16, 1992 Order reinstating two criminal counts, manufacture of a controlled substance and criminal conspiracy, which had been previously dismissed on May 13, 1992 as part of appellant’s omnibus pretrial motion.

On September 24,1991, appellant had the charges of unlawful manufacture, possession with intent to deliver, criminal conspiracy and possession of drug paraphernalia filed against him. A preliminary hearing was held before District Justice Frank C. Wise on December 4, 1991, and appellant was held for court. On May 11, 1992, appellant filed the omnibus pretrial motion which contained a request for a bill of particulars, a request for discovery, a motion to suppress and two motions to dismiss. On May 13th, the omnibus motion was granted by the trial court.

On May 19, 1992, the Commonwealth, upon notice of the Order, filed a motion to reconsider and to schedule an omnibus pretrial hearing. On May 26, 1992, the trial court scheduled the hearing for June 19, 1992, which was subsequently continued until September 16, 1992. At this hearing, the trial court reinstated the two counts, as the totality of the evidence submitted at the preliminary hearing was sufficient to find a prima facie case. The trial court held that it had jurisdiction to hear the reconsideration as it set the hearing within thirty (30) days of the Order. In the court’s mind, this meant that it granted reconsideration at that time.

From the trial court Order of September 24, 1992, appellant filed an interlocutory appeal alleging to this Court that the trial court lacked jurisdiction to grant the Commonwealth’s motion to reconsider the May 13,1992 dismissal and to rescind the dismissal. Appellant argues the Order dismissing the two counts was a final Order and, therefore, had to be appealed by the Commonwealth to this Court or modified by the trial court within the 30-day period outlined by 42 Pa.C.S. § 5505, which reads as follows:

§ 5505. Modification of orders
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

Appellant contends the trial court set the initial hearing date for reconsideration thirty-six (36) days after the dismissal Order. Furthermore, the trial court did not reinstate the prior dismissal until more than four months after the initial Order. As such, appellant argues the hearing was not scheduled or heard within the 30-day period required by section 5505 and, therefore, should not be permitted.

Furthermore, appellant contends the trial court had no jurisdiction to hear or order the reinstatement. The trial court did not vacate its prior Order pending reconsideration, the Commonwealth did not take a timely appeal to this Court and the Commonwealth did not, at any time, move to advance the argument date within the 30-day period.

We find appellant’s argument to be without merit. The law regarding a modification of a court Order is set forth in section 5505. This statutory limitation applies only to final Orders. Commonwealth v. Baker, 352 Pa.Super. 260, 507 A.2d 872 (1986). The provision of this statute does not apply to interlocutory Orders. Commonwealth v. McMillan, 376 Pa.Super. 25, 545 A.2d 301 (1988), appeal affirmed, 523 Pa. 426, 567 A.2d 1043 (1990).

The trial court’s dismissal of the two counts was part of an omnibus motion which included several additional requests. On May 13, 1992, the trial judge, the Honorable John H. Brydon, signed the Order attached to the omnibus motion based solely on the transcript of the district justice. Generally, a final Order is one which ends the litigation or disposes of the entire case. Patton v. Hanover Ins. Co., 417 Pa.Super. 351, 612 A.2d 517 (1992). The finality of an Order is a judicial conclusion which can be reached only after an examination of its ramifications. Flowers v. Flowers, 417 Pa.Super. 528, 612 A.2d 1064 (1992).

According to the record, the Order was signed without a full hearing or an opportunity for the Commonwealth to be heard. The Commonwealth did not receive notice of the two motions to dismiss until after they were granted. According to the Commonwealth, on May 11, 1992, they did receive a request for a bill of particulars. But, according to their motion to reconsider which was filed immediately after receiving the court Order, they never had the opportunity to respond to appellant’s averments. A final Order cannot be granted when one party has not received notice of the proceeding. See Commonwealth v. Fanelli, 292 Pa.Super. 100, 436 A.2d 1024 (1981) (Before a court can vacate or modify an Order on reconsideration, all parties must have notice and an opportunity to be heard). Without proper notice or the presence of the Commonwealth, the proceeding was ex parte and was based solely on a district justice’s determination at a preliminary hearing which is interlocutory and not appealable. Commonwealth v. Shoop, 420 Pa.Super. 606, 617 A.2d 351 (1992).

Moreover, we note that appellant filed his motion to dismiss as part of an omnibus pretrial motion. The Pennsylvania Rules of Criminal Procedure do not allow for such a motion as part of an omnibus pretrial motion. Pa.R.Crim.P. 306. A motion to dismiss, pursuant to Pa.R.Crim.P. 315, is limited to averring that an information has not been filed within a reasonable time or that an indictment has not been found against a defendant within a reasonable time. Rule 315(a). Neither of these grounds are relevant here. Pursuant to Rule 306, an omnibus pretrial motion may contain a motion to quash an indictment or information when it is alleged that the indictment or information is defective, but it cannot be a means of testing the adequacy or competency of the Commonwealth’s evidence. Commonwealth v. Shaffer, 384 Pa.Super. 182, 557 A.2d 1106 (1989); Commonwealth v. Meoli, 307 Pa.Super. 50, 452 A.2d 1032 (1982).

A petition for a writ of habeas corpus is the established and accepted method for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Scott, 396 Pa.Super. 339, 578 A.2d 933 (1990), alloc. denied, 528 Pa. 629, 598 A.2d 283 (1991). In making this determination, the habeas court is not limited to reviewing the evidence presented at the preliminary hearing. Rather, the Commonwealth may present additional evidence at this stage to establish a crime has been committed and the accused is the person who committed the crime. Id. If appellant would have followed this proper method, the Commonwealth would have been properly and adequately put on notice and, therefore, provided with an opportunity to respond.

Finding appellant’s arguments to be without merit, we affirm the Order of the trial court reinstating the two previously dismissed criminal counts.

Order affirmed.

JOHNSON, J., concurs in the result.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903.

      . While appellant contends the trial court "misstated the facts in its September 16, 1992 order,” we are of the belief appellant misinterpreted the court’s statement. The court said it "set the Reconsideration hearing within 30 days of the Order.” Order, Brydon, J., 9/16/92. We believe the court meant he scheduled a hearing within 30 days, not that the hearing would be held within 30 days. Having made this clarification, we point out that it actually is of no consequence which is the proper interpretation because, as noted in this Opinion, the Commonwealth did not have notice and the dismissal Order was not final.


author: BROSKY, Judge. POPOVICH, Judge,

text:
    636 A.2d 1121
    Emma SLAUGHTER v. ALLIED HEATING, Appellant.
    Superior Court of Pennsylvania
    Argued Sept. 14, 1993.
    Filed Dec. 15, 1993.
    Reargument Denied Feb. 17, 1994.

      Meg L. Burkardt, Oakmont, for appellant.
    Carl H. Brown, Jr., Pittsburgh, for appellee. (Submitted)
    Before KELLY, POPOVICH and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order entered by the lower court which denied appellant’s petition to reinstate its appeal from the judgment entered by the district justice. Appellant presents the following issues for review: (1) whether appellant’s failure to technically comply with the requirements of Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A. should be disregarded; (2) whether' appellant substantially complied with the requirements of Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A.; and (3) whether appellant’s procedural noncompliance prejudiced appellee. For the reasons set forth below, we affirm.

Before proceeding to consider appellant’s allegations of error, we will briefly recount the pertinent facts and procedural history giving rise to this appeal. Appellant, Allied Heating, contracted with Melvin Slaughter, Jr. to install a furnace in his residence. Mr. Slaughter was apparently dissatisfied with the performance of the furnace and the installation completed by appellant. For reasons which do not appear of record, Mr. Slaughter’s sister, Emma Slaughter, filed a complaint against appellant with the district magistrate in which she sought to recover $4,000.00 plus costs. Appellant did not attend the hearing and a judgment in the sum of $4,037.00 was entered in favor of Miss Slaughter on November 4, 1992.

Appellant thereafter filed a timely notice of appeal from the judgment with the trial court. According to appellant, notices of the appeal were allegedly sent via regular mail to appellee, Emma Slaughter, and to the district justice. No proofs of service were filed by appellant within the ten-day period specified by Rule 1005B of the Pennsylvania Rules of Civil Procedure for District Justices, 42 Pa.C.S.A. Although appellant had been unrepresented during the proceedings before the district justice, appellant retained counsel in January, 1993. Counsel discovered that the proofs of service were absent from the record and promptly served appellee and the district justice with the notice of appeal on January 15, 1993. Proofs of service were then filed with the trial court. On January 19,1993 appellee filed a praecipe to strike the appeal because of appellant’s failure to comply with Rule 1005B. As a result, the prothonotary struck the appeal. Appellant filed an emergency petition to reinstate the appeal on January 28, 1993. Appellant’s petition was denied by the lower court. Appellant thereafter initiated this timely appeal.

As all of the issues raised by appellant are inextricably intertwined, they will be addressed together. Appellant essentially challenges the trial court’s refusal to reinstate the appeal from the judgment entered by the district justice. Pursuant to Rule 1006, the trial court may reinstate an appeal which has been stricken “upon good cause shown.” Pa. R.C.P.D.J., Rule 1006, 42 Pa.C.S.A. While the phrase “good cause shown” has not been precisely defined, this court has interpreted it to require an appealing party to proffer some legally sufficient reason for reinstating the appeal. Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 517, 594 A.2d 737, 739 (1991). “[T]he determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion.” Id.

As applied here, appellant admits that the proofs of service were not filed within the time period specified by Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A., but nevertheless argues that its noncompliance should be disregarded pursuant to Pa.R.C.P., Rule 126, 42 Pa.C.S.A. Appellant refers us to several decisions issued by this court as well as the courts of common pleas which have found sufficient good cause to reinstate stricken appeals even though the technical requirements of the rules were not fully satisfied. See, e.g., DelVerme v. Pavlinsky, 405 Pa.Super. 443, 450, 592 A.2d 746, 749 (1991) (plaintiffs failure to comply with Rule 1004A was disregarded where the notice of appeal was timely filed and served on the defendants and the district justice, and no prejudice resulted to the defendants); Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 538-539, 451 A.2d 777, 778 (1982) (defendant’s failure to comply with Rule 1005B was disregarded where the defendant failed to timely file the proofs of service but there was evidence that the plaintiff had received actual notice of the appeal within the requisite time period); Katsantonis v. Freels, 277 Pa.Super. 294, 295-296, 419 A.2d 778, 779-780 (1980) (per curiam) (good.cause for reinstating the appeal was shown where the defendant’s counsel promptly mailed the proofs of service to the prothonotary as soon as they were received and the proofs were filed on the sixth rather than the fifth day after the notice of appeal was filed); Beck v. Weitzenhoffer, 49 Pa. D. & C.3d 112, 114 (C.C.P. Dauphin County 1988) (failure to timely file proofs of service was disregarded where the notice of appeal was timely filed and served upon the opposing party and good cause for the noncompliance was shown); Felker v. Seashock, 47 Pa. D. & C.3d 126, 127-129 (C.C.P. Monroe County 1987) (failure to serve the notice of appeal on the adverse party and the district justice until seventeen days after the notice of appeal was filed was disregarded where good cause for the noncompliance was shown); Seiple v. Pitterich, 35 Pa. D. & C.3d 592, 596-597 (C.C.P. Mercer County 1984) (failure to timely file the proofs of service was disregarded where the notice of appeal was timely filed and served and good cause for the noncompHance was shown). While appellant’s interpretation of the above authorities is indeed correct, we find these decisions to be factually distinguishable from the case sub judice.

Nearly all of the cases cited by appellant indicate that the appealing party timely served the notice of appeal upon both the opposing party and the district justice and had merely failed to timely file their proofs of service or their complaint. See, e.g., DelVerme v. Pavlinsky, 405 Pa.Super. at 445 and 450, 592 A.2d at 747 and 749; Quarato v. Facelifters, Ltd., 305 Pa.Super. at 537-539, 451 A.2d at 778; Katsantonis v. Freels, 277 Pa.Super. at 295-296, 419 A.2d at 779; Beck v. Weitzenhoffer, 49 Pa.D. & C.3d at 114; Seiple v. Pitterich, 35 Pa.D. & C.3d at 593, supra. But see Felker v. Seashock, 47 Pa.D. & C.3d at 127 (in which the notice of appeal was not served upon the opposing party until seventeen days after it had been filed). This distinction is significant when it is considered in light of the essential purposes of Rule 1005, which is to prevent parties from appealing from an adverse judgment of a district justice and then delaying the case by failing to timely notify the non-appealing party. Berry v. Sheaffer, 42 Pa.D. & C.3d 480, 483 (C.C.P. Cumberland County 1987). The rule also ensures that the district justice will be notified as the notice of appeal may act as a supersedeas, and thus, may affect the prevailing party’s attempt to execute on the judgment. See Note, Pa.R.C.P.D.J., Rule 1005, 42 Pa.C.S.A. and Berry v. Sheaffer, supra. The requirements of Rule 1005 further promote the speedy, orderly and just determination of the appeal and eliminate any dispute as to whether service was actually made. Hyde v. Crigler, 133 Pittsburgh Legal Journal 270, 271, 10 Pa.D. & C.3d 769, 773 (C.C.P. Allegheny County 1979). Accord Wander v. National Development Corp., 139 Pittsburgh Legal Journal 369, 370, 12 Pa.D. & C.4th 627, 628-629 (C.C.P. Allegheny 1991). Where the notice of appeal is timely filed and served upon the non-appealing party and the district justice, the intent underlying the rule has been fulfilled and no further purpose remains to be served by penalizing the appealing party for failing to timely file the proofs of service. See Wander v. National Development Corp., 139 Pittsburgh Legal Journal at 370, 12 Pa.D. & C.4th at 628-629; Berry v. Sheaffer, 42 Pa.D. & C.3d at 484; Hyde v. Crigler, 133 Pittsburgh Legal Journal at 271-272, 10 Pa.D. & C.3d at 774. Consequently, the mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules has been satisfied. See Wander v. National Development Corp., Beck v. Weitzenhoffer, Berry v. Sheaffer, Seiple v. Pitterich and Hyde v. Crigler, supra.

Unlike the situations presented in the authorities cited by appellant, the record in this case is devoid of any evidence, aside from appellant’s own unsupported allegations, that appellee and the district justice were actually served with the notice of appeal prior to January 15, 1993 when they were served with the notice by appellant’s counsel. In fact, both appellee and the district justice deny receiving the notice of appeal before January 15. See Trial Court Opinion, dated 2/12/93 at 2-3 n. 1. Under these circumstances, the decisions which disregard a technical failure to timely file the proofs of service are distinguishable from this case.

Appellant acknowledges the distinction between the facts presented here and the decisions upon which it relies. Appellant nevertheless contends that Pa.R.C.P., Rule 126, 42 Pa.C.S.A. compelled the trial court to disregard the procedural defects. Notwithstanding appellant’s assessment, Rule 126 does not require the trial court to disregard procedural defects; rather, it permits the trial court, in the exercise of its discretion, to do so where the substantive rights of the opposing party have not been prejudiced. Anderson v. Centennial Homes, Inc., 406 Pa.Super. at 518, 594 A.2d at 739. In the context of this particular case, however, the trial court must additionally consider whether appellant has demonstrated good cause for reinstating the appeal in determining whether to disregard appellant’s failure to comply with the rules. See id., 406 Pa.Super. at 516-517, 594 A.2d at 739-740 and Pa.R.C.P.D.J., Rule 1006, 42 Pa.C.S.A. and Note thereto (providing that the trial court may reinstate an appeal upon good cause shown; the note further indicates that this rule was intended to provide sanctions for failing to act within the prescribed time limits). Appellant has not satisfied the good cause requirement here.

In its petition to reinstate the appeal, the sole reason offered by appellant to explain its noncompliance was that it neglected to file the proofs of service due to inadvertent error. Appellant’s Emergency Petition to Reinstate Appeal, dated 1/28/93 at paragraph 5. However, an unspecific allegation that the failure to comply with Rule 1005B was attributable to “inadvertent error” is insufficient to show good cause. See Wander v. National Development Corp., 139 Pittsburgh Legal Journal at 369, 12 Pa.D. & C.4th at 628. Appellant does not pursue its assertion of inadvertent error on appeal. Instead, appellant provides us with no explanation for its noncompliance aside from a vague reference to the fact that it was unrepresented by counsel at the time the notice of appeal was filed. It is well settled that an individual who chooses to proceed pro se is not entitled to any particular advantage because of his or her lack of legal training. O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). As our Supreme Court has explained, an individual choosing to represent him- or her-self must, to some reasonable extent, assume the risk that the lack of expertise and legal training will prove his or her undoing. Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 139, 149, 494 A.2d 1081, 1086 (1985). Accord O’Neill v. Checker Motors Corp. Appellant’s pro se status, without more, thus does not establish good cause.

Although appellant offers no justification for its failure to comply with the rules, appellant asserts that the noncompliance nonetheless should be disregarded because appellee has suffered no prejudice. As recognized by this court, “simply stating that the ... noncompliance did not substantially affect the rights of the [adverse party] is not alone sufficient to demonstrate good cause to reinstate the appeal.” Anderson v. Centennial Homes, Inc., 406 Pa.Super. at 518, 594 A.2d at 740. Because appellant has substantially failed to comply with the procedural rules for perfecting an appeal from a judgment entered by a district justice and because appellant has failed to show good cause for its procedural noncompliance, we are unable to conclude that the trial court abused its discretion by refusing to reinstate the appeal in this case. We therefore affirm the order entered by the trial court.

Order affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

While I recognize the majority’s resolution of this case complies with the Pennsylvania Rules of Civil Procedure for District Justices, I write separately to express concern over the draconian penalty which appellant must endure for its relatively minor violation of the Pa.R.C.P.D.J., Rule 1005B. I believe that striking appellant’s appeal is a harsh result where the brief delay in service of the notice of appeal has not prejudiced appellee. Accordingly, I dissent and would reinstate the appeal.

I note that civil actions before the district justice are routinely litigated by lay citizens of this Commonwealth who are not learned in the law and the applicable rules of civil procedure. Thus, I believe that when ruling upon violations of the rules of civil procedure of our own “people’s court”, we should liberally construe the rules and “disregard any error or defect or procedure which does not affect the substantial rights of the parties.” See, Pa.R.C.P. Rule 126.

Instantly, appellant timely filed its notice of appeal with the prothonotary of Allegheny County on November 11, 1992. Pa.R.C.P.D.J. Rule 1002. Although it claims to have served appellee and the district justice by first class mail in a timely manner, both appellee and the district justice deny receiving notice until January of 1993, well after the ten-day time limit imposed by Rule 1005B. Rule 1005A requires the appellant to serve the appellee and district justice via personal service or certified or registered mail which appellant did on January 15, 1993, when legal counsel was retained.

If an appellant demonstrates “good cause” why it neglected to comply with Rule 1005B, the lower court may reinstate appellant’s appeal. Pa.R.C.P.D.J. Rule 1006. It is my opinion that the definition of “good cause” should be liberally construed, and encompass appellant’s “inadvertent error” in allegedly attempting to serve the proofs via first class mail rather than certified mail or personal service, especially where the delay in actual service of less than two months has not resulted in prejudice to appellee.

I am aware that such an interpretation of “good cause” would greatly expand its definition. However, I believe it is necessary to insure that ordinary citizens without the assistance of lawyers are able to secure adjudication of their disputes, despite insignificant, non-prejudicial deviations from the procedural rules.

      . An order denying a motion to reinstate an appeal is a final order for purposes of appeal. Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 516 n. 2, 594 A.2d 737, 739 n. 2 (1991).

      . The rules governing appeals to the trial court do not provide for service by regular mail. Rather, Rule 1005A requires an appellant to serve a copy of the notice of appeal by personal service or by certified or registered mail. Pa.R.C.P.D.J., Rule 1005A, 42 Pa.C.S.A. There is nothing in the record indicating that appellant actually served the notice of appeal on appellee and the district; both appellee and the district justice informed the trial court that they did not receive the November notices allegedly mailed by appellant. Trial Court Opinion, dated 2/12/93, at 2-3 n. 1.

      . Appellee has neither filed a brief nor otherwise advised us of her position in these proceedings.

      . The three claims raised by appellant do not actually represent three distinct questions for review. Rather, appellant has presented us with three arguments as to why its appeal from the district justice’s judgment should be reinstated.

      . Appellant, represented by the same counsel, previously appeared before this court in Allied Heating & Cooling, Inc. v. Reeves, 413 Pa.Super. 650, 596 A.2d 248 (1991), No. 1180 Pittsburgh 1990 (filed June 11, 1991). Although Allied v. Reeves presented essentially the same issue as that raised in the instant appeal, we note that Allied took the opposite position in that case and argued that the rules of procedure should be strictly construed and that the failure to comply with the rules should not be disregarded. Id., unpublished memorandum at 4.

      . Appellee’s lack of notice of the appeal prior to January 15 is further supported by the fact that she did not file a praecipe to strike the appeal until January 19, 1993.

      . In reaching this conclusion, we are not unmindful of the holdings in Felker v. Seashock, supra as well as this court’s decision in Allied v. Reeves, ante at n. 5 in which the appealing party’s failure to comply with Rule 1005 was disregarded even though the notice of appeal was not served upon the opposing party within the five-day period after the notice was filed with the court. See Felker v. Seashock and Allied v. Reeves, supra. However, neither of these decisions constitute binding precedent. See NPW Medical Center of N.E. Pennsylvania v. LS Design Group, P.C., 353 Pa.Super. 341, 347 n. 4, 509 A.2d 1306, 1309 n. 4 (1986) and Turner v. May Corp., 285 Pa.Super. 241, 252 n. 7, 427 A.2d 203, 208 n. 7 (1981). More importantly, both Felker and Allied are distinguishable from this case in that both involved the service of the notice of appeal within a relatively short period of time after the notice of appeal was filed. See Felker v. Seashock, 47 Pa.D. & C.3d at 127 (notice of appeal was served seventeen (17) days after it was filed with the court) and Allied v. Reeves, unpublished memorandum at 5-6 (notice of appeal was served twenty-eight (28) days after it was filed with the court). By way of contrast, fifty-eight (58) days elapsed between the filing of the notice of appeal and actual service of the notice in this case. Although the ten-day rule is flexible and is to be liberally construed, we do not believe that an appealing party should be permitted to indefinitely extend the time for serving the notice of appeal so as to frustrate the purposes of the rule. Felker is further distinguishable because the appealing party in that case demonstrated good cause for reinstating the appeal. Unlike the appealing party in Felker, the appellant here has not offered sufficient explanation for its noncompliance. We are also unpersuaded by the reasoning set forth in Allied since the court therein focused exclusively upon the question of whether the non-appealing party’s rights would be prejudiced and failed to consider whether the appealing party had established good cause for reinstating the appeal as required by Pa.R.C.P.DJ., Rule 1006, 42 Pa.C.S.A.

      . Appellant’s claim of “inadvertent error” is puzzling as it implies that appellant possessed the proofs of service and simply failed to timely file them with the trial court. However, such an inference is negated by the fact that appellant has not presented any sender’s receipts demonstrating that copies of the notice of appeal were mailed to appellee and the district justice on or about November 18, 1992. See Pa.R.C.P.D.J., Rule 1001(9) and Note to Rule 1005, 42 Pa.C.S.A. (defining proof of service and requiring a sender’s receipt to be attached to the proof of service where service is made by mail). In the absence of such evidence, we áre unable to ascertain how the failure to file the proofs of service was inadvertent since there is no indication that appellant had obtained the proofs of service at the time the notice of appeal was filed.