author: BECK, Judge:

text:
    467 A.2d 371
    Kathryn WITMAYER v. Francis P. WITMAYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1983.
    Filed Oct. 14, 1983.

      W.J. Krencewicz, Shenandoah, for appellant.
    Anthony J. Miernicki, Shenandoah, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

This is an appeal from an order awarding custody of a five-year-old boy, Francis David Witmayer (Frank), to his mother, appellee Kathryn Bernadette Witmayer (Kathryn). After conducting an independent review of the record, we affirm the trial court.

In addition to Frank, Kathryn is the mother of Josette, a child of her first marriage who was twelve-years-old at the time of the hearing. In 1972 Kathryn married appellant Francis P. Witmayer (Francis), who adopted Josette. In 1977 Frank was born. Francis and Kathryn separated in November 1977, and were divorced in 1978. By informal agreement of the parties, the two children resided with Kathryn.

On February 5, 1982, Frank and Josette visited Francis for a weekend. At the end of the weekend, he returned Josette, but not Frank. On February 22, 1982, Kathryn instituted this action seeking legal custody of Josette and Frank.

After a pre-trial conference before a master on May 7, 1982, the parties agreed to an interim order. Frank would remain with Francis, subject to visitation rights for Kathryn. Josette would remain with Kathryn, subject to visitation rights for Francis. This arrangement would continue until a full hearing on the merits and a decision by the trial court.

The custody hearing was held on September 23, 1982. Francis informed the trial court that he would contest only the custody of Frank. After hearing testimony, the trial court awarded custody of both Josette and Frank to Kathryn.

On October 4, 1982, this Court, upon petition of Francis, stayed the lower court order pending the outcome of this appeal.

Francis makes the following arguments on appeal: 1) that the informal custody agreement made by the parents at the time of separation has no force and effect; 2) that the interests of Frank are best served by awarding custody to him; 3) that Kathryn is not a fit person to have custody of Frank; and 4) that there is no competent evidence to support the finding by the lower court that Francis presently has a serious mental health problem.

In custody disputes between parents, the standard for decision is the best interests of the child, including his or her physical, intellectual, emotional, and spiritual well-being. In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981). Each parent shares the burden of proving, by a preponderance of the evidence, that an award of custody to him or her would serve the best interests of the child. Ramos v. Rios, 249 Pa.Super. 487, 378 A.2d 400 (1977).

This Court clearly set forth in Robert H.H. v. May L.H., 293 Pa.Super. 431, 433-434, 439 A.2d 187, 188-189 (1981) our broad scope of review in child custody proceedings:

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the “best interest of the children.” In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth’s justifiable concern for the health and safety of its children is met. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1979) .... We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but it is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Ber-man v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, 286 Pa.Super. 171, [176], 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, [458], 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion).

INFORMAL CUSTODY AGREEMENT

Francis notes that at the time he took physical custody of the child, the parties were operating under an informal agreement; no legal determination as to custody had been made. He therefore argues that he had as much right to physical custody of Frank as Kathryn did. Francis urges us to accept the proposition that custody agreements which are made informally as opposed to court ordered ones should have no force and effect. Therefore, he was under no obligation to return Frank after his weekend visit although such refusal clearly violated the informal agreement. We find no merit in this argument.

If informal custody agreements have no force and effect, then parents can engage in self-help, breach an agreement at will, and suffer no detriment. This would discourage orderly private settlements of disputes and potentially expose a child to greater instability, disruption and discord.

The law looks with favor upon resolutions of custody disputes that are settled privately. Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982). It is desirable for divorcing parents to settle their differences without the intervention of the court system wherever possible. There are good reasons why these private agreements serve the best interests of the child:

First, most parents genuinely love their children, and it is reasonable to assume that the children’s welfare is a vital consideration in the parents’ decision to resolve their dispute by agreement. One major reason that parents agree on custody is to spare their children the trauma inherent in an adversarial hearing. Second, parents have a better informational base upon which to make a decision about custody. The adversarial process is an inadequate means to assemble sufficient “facts” to resolve custodial disputes satisfactorily. Third, it is difficult to protect a child from the painful pull of divided loyalties when his parents fail to agree. Parental agreements help to preserve an atmosphere of at least superficial peace between parents and thereby facilitate a much easier and more meaningful future relationship between the child and the non-custodial parent. An unusually sensitive statement of these factors was offered by an Illinois court:
[T]he virtues of parental agreement are strong, and the law appreciates them ____ The parents obviously know more about the family than a judge is likely to learn in a short, formal hearing. In a more or less amicable dissolution, the parents’ natural desire to do what is best for their children gives any agreement about custody great weight as an indicator of what is in the best interest of the children. Moreover, amicable settlement of custody arrangements is a good thing in itself, for peace between the parents must benefit the children; and a court will hesitate to tamper with what may be a fragile agreement, worked out only with difficulty.

Sharp, Modification of Agreement—Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1280 (1982) (footnotes omitted).

Divorced or separated parents usually differ on questions relating to their children. For those parents to work out a mechanism themselves whereby they resolve those conflicts privately is to be encouraged. Such a mechanism, once forged, may set a pattern for resolution of later disputes as they arise. Such resolutions frequently result in informal agreements. This is not to deny that many divorced or separated parents will not be able to settle their differences without the intervention of the court system. The law should not impede, however, those parents who are able to forge a mechanism for private dispute resolution.

What effect should the law give these informal agreements? If the bargaining power of each parent at the time of making the agreement is roughly equal then such agreement ought to represent evidence of the parties’ intention as to custody of the child and the court should give substantial weight to such agreements. Of course, if circumstances change after the making of the agreement or if the parties did not have roughly equal bargaining power at the time of making the agreement, then lesser or no weight should be afforded the agreement.

If such an agreement is breached, as here, how should the court view the unexcused actions of the party breaching the agreement?

Guidance is provided in In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978). As in the instant case, the parents in Leskovich operated under an informal agreement as to custody. In Leskovich, this Court held that upon remand the trial court, in evaluating the father’s fitness as a custodial parent, should consider that the father breached the agreement and resorted to self-help which disregarded the orderly process of dispute resolution. Id,., 253 Pa.Superior Ct. at 359, 385 A.2d at 378.

Applying Leskovich to the instant matter, we conclude that when Francis sought custody of Frank, the appropriate step was to renegotiate the agreement with Kathryn. If that failed, he should then have resorted to a resolution within the court system itself. Removal of a child in contravention of an informal custody agreement is a fact that the trial court should consider in evaluating parental fitness.

BEST INTERESTS OF FRANK

Francis asserts that the best interests of Frank would be served by awarding custody to him. We disagree. He notes that he is home full time. He receives a veterans disability pension and does not work. Unlike Kathryn who works and places Frank in day-care, he would devote almost all of his time to the boy. “The fact that a parent must work is certainly not a factor that may be used to deprive the parent of custody where adequate arrangements have been made for the child’s care in the parent’s absence.” Hooks v. Ellerbe, 257 Pa.Super. 219, 224, 390 A.2d 791, 794 (1978), rev’d on other grounds, 490 Pa. 363, 416 A.2d 512 (1980).

Francis also charges that Kathryn goes out socially some evenings and that she used to attend a ceramics class. The record reveals that Kathryn always has provided for Frank’s care when she is out of the home and that her activities have not had a deleterious effect on Frank’s normal development. The mere fact of her occasional evening absences from home without evidence of a negative effect on the child will not support a custody award to the father. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981).

Francis accurately notes that Frank expressed a preference to remain with him. Frank was interviewed in chambers by the trial court in the presence of counsel for both parties. While the preference of the child is one factor, the weight to be accorded this preference will vary according to the age, intelligence, and maturity of the child as well as the reasons given for the preference. In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983) (quoting Commonwealth ex rel. Pierce v. Pierce). In the instant case the lower court properly did not make the child’s preference determinative for the following reasons:

The lower court noted that Frank appeared immature during the interview. In response to questions of why he preferred to live with his father, he stated that he would be able to pick potatoes and corn and that there were many farms in the vicinity of his father’s home. Notes of Testimony (N.T.) at 126-127. In addition, Frank’s testimony revealed that his father had recently bought him gifts and that he had been instructed as to what to say at the interview. Id. at 126, 128, 132.

In making its award the lower court properly recognized that continuity and stability are important elements in a young child’s emotional development. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982); In Interest of Tremayne Quame Idress R., 286 Pa.Super. 479, 429 A.2d 40 (1981).

In addition, absent compelling reasons to the contrary, it is best for siblings, even half-siblings, to be raised together. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). Francis urges us that the latter principle is attenuated because there is a seven year age difference between Frank and Josette. Without more, we do not find this to be a compelling argument justifying separating them.

KATHRYN IS UNFIT

Francis contends that Kathryn is an unfit parent on two grounds: that Kathryn has been irresponsible in her care of her children in the past, and that she presently has a meretricious relationship with a man named Jake.

Francis testified that in 1970, after he and Kathryn began living together she left Josette in the care of a neighbor. N.T. at 97. He quoted Kathryn as saying about Josette: “I don’t need her.” Id. Kathryn testified that the neighbor merely babysat while she worked. Id. at 37. Assuming, arguendo, that Francis’ version is correct, it has no bearing on the awarding of custody in this case. As this Court has stated:

The primary concern in custody matters lies not with the past but with the present and future. Hooks v. Ellerbe, 257 Pa.Super. 219, 390 A.2d 791 (1978), reversed on other grounds 490 Pa. 363, 416 A.2d 512 (1980). Facts as of time of hearing are the foundation for determination of the court. Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974). Past conduct is not relevant unless it will produce an ongoing negative effect on the child’s welfare. In re Leskovich, 253 Pa.Super. 349, 385 A.2d 373 (1978).

Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 514, 444 A.2d 1299, 1301 (1982) (emphasis in original).

Kathryn’s alleged conduct occurred more than ten years ago and related to Josette, not to Frank. More important, she has been a good parent to Frank and Josette. The record indicates that Frank was well cared for and happy at the time Francis seized physical custody. N.T. at 66.

In addition, Francis stated that he did not return Frank because of Kathryn’s alleged extra-marital relationship with a man named Jake which reflected negatively on her fitness. Id. at 83. Francis’ allegations as to Kathryn’s unfitness, however, as the lower court found, were not substantiated at trial. Josette testified that Jake had never slept over at Kathryn’s house. Id. at 75. The trial court correctly concluded that there is no evidence that Kathryn’s relationship with Jake had a negative effect on Frank. In his brief, Francis simply states that the relationship is “certain to have an adverse effect on the morals of impressionable children.” Appellant’s brief at 34-35. With regard to a non-marital relationship, the law does not presume that such a relationship will in and of itself have an adverse impact on a child. In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982). The negative effect must be established by competent evidence.

The decision of the lower court is affirmed.

ROWLEY and WIEAND, JJ., concurred in the result.

       While the lower court found Francis has a serious mental health problem it noted that this factor was not determinative in ordering that custody remain with Kathryn. The lower court opinion itself states: "Even if there were no allegations of unfitness or psychological problems, for the reasons contained in the rest of this opinion, the Court would still award custody to the mother.” Trial court opinion at 29. Therefore, this Court need not review the finding of the lower court with reference to Francis’ mental health.


source: Caselaw Access Project

author: BROSKY, Judge: WIEAND, Judge,

license: Public Domain

text:
    467 A.2d 377
    Clare KREMER, Appellant, v. JANET FLEISHER GALLERY, INC.
    Superior Court of Pennsylvania.
    Argued May 10, 1983.
    Filed Oct. 28, 1983.

      Steven E. Angstreich, Philadelphia, for appellant.
    Richard C. Unger, Jr., Philadelphia, for appellee.
    Before CERCONE, President Judge, and SPAETH, HESTER, BROSKY, WIEAND, BECK and JOHNSON, JJ.
   BROSKY, Judge:

This appeal is from judgment on the verdict. Appellant sought damages for the sale of her paintings at a price below their alleged value. Appellee sought, and obtained, a verdict on its counterclaim. Appellant raises five issues for our review: First, that the trial court erred in precluding appellant from introducing evidence on the value of the res, two paintings. Second, that it was error to allow the introduction of hearsay documentary evidence. Third, that an adverse inference against appellant should not have been allowed regarding appellant’s failure to call a certain witness. Fourth, that an expert witness should not have given testimony based upon a false hypothetical and without proper foundation. Fifth, that the charge was faulty in neglecting to charge on applicable principles of agency law. We find that a new trial is required on the basis of issues one and five, above.

The relevant facts are as follows:

In October, 1974, Kremer engaged Fleisher’s services to sell a number of paintings. Twenty-two paintings were subsequently delivered to Fleisher’s gallery, where they were photographed and stored. Fleisher billed Kremer for expenses of photography, storage, insurance and a prior appraisal of twelve of the paints, but this bill was never paid. In January, 1976, the parties met to discuss the bill and the unsold paintings and agreed that one or two of the paintings should be auctioned off in order to test the market for the paintings. Proceeds from the sale were to be applied to the unpaid bill. It was agreed that the auction was to take place in the third floor gallery at the auction house and two paintings were shipped from Fleisher’s marked for sale from that gallery. The paintings, however, were auctioned from the first floor gallery, where lower quality artwork was sold. The paintings brought a total of $800.00 at auction: $550.00 for one painting; $250.00 for the other. Kremer’s suit sought damages for Fleisher’s negligence in allowing the paintings to be sold for a price she considered to be less than their true value. Fleisher denied liability and countersued for the excess of Kremer’s outstanding bill over the sum received through sale of the paintings.

I. Value of the Paintings.

The first issue involves the court not allowing appellant to introduce three separate types of evidence regarding the value Gf the paintings. The court below wrote in its opinion that: “This question was rendered moot by the verdict finding in effect that plaintiff authorized the sales and hence is not entitled to damages.”

Under other factual circumstances, we would agree with this conclusion. This would be because, although exclusion of properly admissible evidence may be grounds for granting a new trial where the exclusion has prejudiced appellant, new trial will not be granted where the evidence would not have affected the verdict. Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973). Thus, when the jury has returned a verdict for a defendant on the issue of liability, exclusion of evidence of damages is not usually grounds for granting a new trial. Metzler v. Rapho Twp., 26 Lanc.L.Rev. 231 (1909); Minich v. Beittel, 26 Lanc.L. Rev. 248 (1909). Here, the jury returned a verdict for defendant on both the complaint and counterclaim.

However, under the facts of this case, this general rule does not apply. Evidence of the value of appellant’s paintings could have affected the jury’s verdict. Thus, it was not relevant only to the issue of damages.

The theory upon which appellant’s claim was based was that appellee was negligent in selling her paintings for a price far below their value. Evidence establishing a discrepancy between the value of the paintings and the price they commanded was of course relevant to the issue of damages, but before that, it was relevant to the issue of liability, specifically, to whether appellants had as a result of appellee’s negligence suffered an injury. See Restatement (Second) of Torts § 281 (1965). Evidence of a value-price discrepancy was relevant to the issue of liability. Evidence of the extent of the discrepancy was relevant to the issue of damages. Because evidence is relevant to one issue (damages) does not mean that it may not also be relevant to another issue (liability).

Contrary to the trial court’s assertion, the evidence in question was not only relevant to liability but, since it went to the heart of appellant’s case, its admission might have resulted in a different verdict. Thus, if any of the pieces of evidence should otherwise have been admitted, and if a contrary verdict might have resulted from the admission of any one of them, a new trial is mandated. Billings v. Upper Merion Twp. Auth., 44 Pa.Cmwlth. 622 at 626, 405 A.2d 967 at 970 (1979). It now remains for us to determine, one by one, whether the pieces of evidence were admissible and whether their admission could have resulted in a different verdict.

The first of the three pieces of evidence we will review was a document prepared by appellee valuing some other paintings prepared by the same artist.

This evidence was relevant because paintings by the same artist are mutually comparable. The value of paintings comparable to those sold is relevant to the value of those sold. See generally Deitch Co. v. Board of Property Assessments, 417 Pa. 213, 209 A.2d 397 (1965).

It was also admissible as an admission of a party-opponent, an exception to the hearsay rule. Adams v. Mackleer, 239 Pa.Super. 244 at 248, 361 A.2d 439 at 441 (1976).

Where other evidence of the same fact was introduced by the party seeking a new trial, a new trial is not in order. It is true that Janet Fleisher conceded indirectly that she had appraised the eight paintings for $32,500, and that the excluded written appraisal would have said no more than that. It was, however, a grudging concession (“I have appraised hundreds and hundreds of paintings since then”). A jury is likely—quite properly—to assign extra weight to documentary evidence. That was especially likely here, where appellee’s expert emphasized the greater authority of a written, as opposed to an oral, appraisal. The admission of Fleisher’s written appraisal—a professional admission— that the value of paintings comparable to those sold was $32,500 might well have increased the jury’s assessment of the value of the paintings that were sold.

Therefore, in all respects, the valuation should have been admitted and its absence justifies the grant of a new trial.

The second piece of evidence which was excluded was appellant’s opinion of the value of the two paintings.

This evidence should have been admitted. The owner of personalty traditionally has been permitted to testify to its value in civil cases. “The theory which underlies these cases is that an owner, by reason of his status as owner, is deemed qualified to give estimates of the value of what he owns.” Commonwealth v. Warlow, 237 Pa.Super. 120 at 126, 346 A.2d 826 at 829 (1975). Nor was the presumption from ownership that she knew their value overcome. Sil ver v. Television City, Inc., 207 Pa.Super. 150, 215 A.2d 335 (1965).

However, this error does not mandate a new trial; if it had been admitted, the evidence would have merely repeated other evidence. Appellant was permitted to testify to Janet Fleisher’s appraisal of the value of the paintings. The offer of proof shows that her own assessment of their value would have been identical to the appraisal she ascribed to Janet Fleisher. Appellant’s testimony as to her own opinion of the value of the paintings would therefore have been cumulative. Consequently, the lower court’s error in excluding it does not require a new trial. See, e.g., Pittsburgh Nat’l Bank v. Mut. Life Ins. Co. of New York, 273 Pa.Super. 592, 417 A.2d 1206 (1980), aff'd, 493 Pa. 96, 425 A.2d 383 (1981).

The third piece of excluded evidence was the testimony of David Ross, the immediately preceding purchaser of the paintings. He would have testified that 35 to 40 years ago he bought three paintings by the same artist, including the two sold by appellee, for $2,750. On the basis of his 34 years of experience in the art business, Ross would have testified that paintings have appreciated in value since the time of his purchase.

The question of whether evidence of a prior purchase price is admissible on the issue of current value depends upon whether the prior sale was too remote in time to be relevant.

Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). The essence of Ross’s testimony was that he could say as an expert that here, given the nature of the items in question, the prior sale was not too remote. His testimony would have been probative of the proposition that appellant sought to establish—that the current value of the paintings exceeded the price for which they were sold by Freeman’s. Not permitting the testimony was therefore error, and serious error, for the testimony might well have had a substantial impact on the jury’s assessment of the current value of the paintings and therefore on its verdict. This also, then, is an error justifying the remedy of a new trial.

II. Other Issues.

Appellant raises four additional issues. Those issues numbered two, three and four in the initial statement of the issues above will not be treated substantively in this opinion. Since we hold that a new trial is required by issues number one and five, only two reasons could justify the treatment of the other three issues. One such reason would be if any of these issues presented errors of the court below which should not be repeated on retrial. None of these three issues does present an error to be avoided in the new trial. The second possible reason to write on these issues would be their presentation of novel issues of law— even if we did not ultimately conclude that error was committed. None of these three issues falls into this category either. We will, therefore, proceed directly to the remaining issue in which we discern reversible error requiring a new trial—the charge to the jury.

III. Charge to the Jury on Agency.

Appellant contends that the trial court erred in not charging the jury on the applicable principles of agency law. Specifically, she argues that the jury should have been informed of an agent’s duty to his principal; the standard of care owed; the agent’s liability for breaches thereof; and that an agent is responsible to his principal for the actions of the agent’s servant. We agree.

As noted above, appellant’s claim rested on the theory that appellee was negligent in selling her paintings for a price far below their true value. The jury could not decide whether appellee was negligent without first deciding whether it should have appeared to appellee that there was an unreasonable risk that the paintings might be sold for less than their true value if Freeman’s sold them on its first floor.

The charge given the jury on the issue of whether appel-lee was negligent stated: “If you find from a preponderance of the evidence that the paintings were worth more than was realized at the sale, and that defendant Janet Fleisher breached her duty to plaintiff or was negligent, then you must award plaintiff damages.” (emphasis added). Nowhere were the concepts of “duty” or “negligence” defined. We don’t see how the jury could possibly have gleaned from this charge the standard by which it was supposed to measure the facts. The charge was therefore error: it didn’t provide the jury with “a reasonable guide for the determination of the defendant’s alleged negligence [citation omitted] and on the degree of care required of the defendant [citation omitted].” Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 6, 345 A.2d 259, 261 (1975).

Thus, on this basis also, we grant a new trial.

Judgment on the verdict is vacated and the case remanded for a new trial. Jurisdiction is relinquished.

WIEAND, J., filed a concurring opinion in which JOHNSON, J., joined.

WIEAND, Judge,

concurring:

I agree that the trial court’s jury instructions regarding the duty of care owed to a principal by an agent were inadequate. Therefore, a new trial is necessary.

However, I am unable to agree with the majority’s analy-ses of the various issues arising from appellant’s several offers to prove the value of the paintings sold; and, therefore, I do not join that portion of the majority opinion.

JOHNSON, J., joined.

      . Or where other evidence of the same fact was introduced by the party applying for the new trial.

      . Since we cannot, under the facts of this case, conclude that a contrary verdict would certainly have resulted had this evidence been admitted, we do not grant a judgment n.o.v. McKnight v. City of Philadelphia, 299 Pa.Super. 327, 445 A.2d 778 (1982).

        . Recent purchase price of comparable realty admissible for purpose of establishing value.

      . Treated in the next section.

      . Restatement (Second) of Agency, § 379.

      . Restatement (Second) of Agency, § 401.

      . Restatement (Second) of Agency, § 405. Klein v. Stern & Co., 144 Pa.Super. 470, 19 A.2d 566 (1941). While summarized here, our discussion covers by reference appellant’s point for charge 1 through 6, 10 and 11.


author: BROSKY, Judge:

text:
    467 A.2d 382
    COMMONWEALTH of Pennsylvania v. Leroy McCAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1983.
    Filed Oct. 28, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after revocation of probation. Appellant contends that he was denied his right to a speedy probation violation hearing. We agree and, accordingly, reverse the lower court’s order revoking probation, and we vacate the judgment of sentence.

On June 10, 1977, appellant was convicted of robbery and sentenced to four years probation. On October 28, 1980, he pled guilty to a new criminal offense and was sentenced to a term of imprisonment of two to ten years. The Probation Department promptly filed a notice of violation of probation. After several continuances of the violation hearing, appellant’s probation was revoked on November 5, 1981, and a sentence of imprisonment of six months to two years, to run consecutively to his other sentence was imposed. This appeal followed.

Appellant contends that the November 5, 1981 probation violation hearing, held 12 months after his guilty plea and three months after his probationary period had expired violated Pa.R.Crim.P. 1409. Rule 1409 provides in relevant part:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.

Rule 1409 does not establish a presumptive period in which the Commonwealth must revoke probation, but, instead, the question is whether the delay was reasonable under the circumstances of the specific case. Common wealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). In evaluating the reasonableness of the delay the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay. Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978). Applying these factors to the case at bar, we conclude that this probation violation hearing was not held with the reasonable promptness required by Rule 1409.

Instantly, over 12 months passed between appellant’s guilty plea and the violation hearing. Considering we have found that a five month delay can be unreasonable, see Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768, 769 (1971), there is no doubt that the 12 month delay here cannot be dismissed as “intrinsically reasonable.” Commonwealth v. Jones, 250 Pa.Super. 116, 120, 378 A.2d 481, 483 (1977).

We next examine the reasons for the delay. The court below suggests only that the hearing was delayed because appellant had been transferred from institution to institution and was unavailable on five separate occasions. The Commonwealth, in its brief, offers no additional explanation. The problem is, however, that the record fails to adequately demonstrate this reason to be the cause of the delay. The only basis in the record for the lower court’s conclusion is the testimony of a probation officer that, according to his notes, appellant was being moved from prison to prison. However, he substantiated this assertion with specific facts for only one listing of the violation of probation hearing. Furthermore, he testified that appellant was actually brought to City Hall in Philadelphia on two occasions, thus partially corroborating appellant’s unrefuted testimony that he was transported to City Hall for several listings of the violation hearing, but that the hearings were not held. The Commonwealth produced no other evidence at the hearing to explain why appellant was not brought down or the violation hearing was not held on the various prior listings. Thus, we conclude that the lower court’s conclusion that the violation of probation hearing was delayed for a year by continual inter-prison transfers of appellant lacks factual support in the record. This absence of adequate explanation for the delay must be weighed in appellant’s favor. Commonwealth v. Smith, 266 Pa.Super. 234, 403 A.2d 1326 (1979).

Finally, the Commonwealth contends that the judgment of sentence should not be reversed because appellant was not prejudiced in any way by the delay since he was serving the sentence for the probation violating offense at the time of the hearing and was thus not subjected to any unnecessary incarceration. However, the hearing did not take place until approximately three months after the expiration of the probationary period. “Our cases have indicated that a certain amount of prejudice necessarily follows from the mere fact of the expiration of the period.” Commonwealth v. Holmes, 248 Pa.Super. 552, 560, 375 A.2d 379, 382 (1979); see Commonwealth v. Smith, supra; Commonwealth v. White, supra; Commonwealth v. Young, supra. Therefore, we have no choice but to find that appellant was prejudiced, albeit minimally, by the delay.

Certainly, this small amount of prejudice would not in every case justify a conclusion that a defendant was denied his right to a speedy hearing. However, instantly, this prejudice must be weighed along with the two other factors discussed above: the 12 month delay and the inadequate explanation by the Commonwealth for this delay. Thus, “[considering the long delay, the lack of adequate explanation by the Commonwealth, and the prejudice to the appellant, we must conclude that appellant was denied his right to a speedy hearing.” Commonwealth v. Smith, 266 Pa.Super. at 238, 403 A.2d at 1329.

Order revoking probation reversed and judgment of sentence vacated.

      . For purposes of Rule 1409, the relevant period of delay is calculated from the date of conviction or entry of guilty plea to the date of the violation heáring. Commonwealth v. Reed, 277 Pa.Super. 94, 419 A.2d 677 (1980). Commonwealth v. Jones, 250 Pa.Super. 116, 378 A.2d 481 (1977).

      . Although the probation officer attempted some explanation of what took place on these occasions, it was extremely unclear and we cannot say from our review that he was successful in this attempt.


text:
    467 A.2d 384
    COMMONWEALTH of Pennsylvania v. William D. FAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1983.
    Filed Oct. 28, 1983.
    Petition for Allowance of Appeal Denied April 2, 1984.
    David P. Perkins, Shippensburg, for appellant.
    Kevin Adair Hess, First Assistant District Attorney, Car-lisle, for Commonwealth, appellee.

      Before CAVANAUGH, BROSKY and CIRILLO, JJ.
   BROSKY, Judge:

This appeal is from the order of judgment of sentence for five counts of driving under a suspended license and one count of driving with a foreign license while under suspension. Appellant argues that he cannot be properly convicted of these crimes when the period of suspension had expired at the time of the alleged violations. He also contends that he did not receive notification of the suspension in the statutorily prescribed manner. We agree with appellant as to the first issue and accordingly reverse.

I.

The relevant factual background can be briefly summarized. In October of 1979, appellant’s license was suspended indefinitely for failure to pay a citation. On December 18, 1979, appellant’s license was suspended for a period of six months for a conviction of driving under the influence. The Pennsylvania Department of Transportation considered this six-month period to have begun on January 30, 1980, when appellant surrendered his Pennsylvania license to Arizona authorities to get an Arizona driver’s license. Thus, the suspension period had expired and appellant was eligible to take the appropriate steps to obtain his Pennsylvania driver’s license as of August 1, 1980. All of the six citations before us here were issued several months after the end of the suspension period—after August 1. Appellant obtained a post-suspension driver’s license after the citations involved herein were issued.

II.

As noted above, appellant argues that he could not be convicted of driving under a suspended license or of driving with a foreign license while under suspension when the period of the suspension had expired.

He cites for this proposition an opinion of this Court, Commonwealth v. Parfitt, 286 Pa.Super. 279, 428 A.2d 991 (1981) (Cavanaugh, J.). Parfitt held that an individual could not be convicted of driving under a revoked license for driving after the revocation period had expired and before he had obtained a new license.

However, the fact that the appellant must reapply for a license does not alter the fact that the period of his license revocation ended on October 12, 1977, and that § 1543(a) of the 1976 Code does not expressly cover the time period after the revocation period but prior to receipt of a new license. Section 1543(a), being penal in nature, must be strictly construed. 1 Pa.C.S.A. § 1928(b).

Commonwealth v. Parfitt, supra, 286 Pa.Superior Ct. at 282, 428 A.2d at 993. We note that in Parfitt the Court was dealing with one of the same statutes that appellant was convicted of violating, 75 Pa.C.S.A. § 1543(a). “Driving while operating privilege is suspended or revoked.”

The court below distinguished Parfitt on the following grounds: in order to obtain a post-suspension license one must not only make an application—as one does in obtaining a new post-revocation license—but one must also pay a fee and provide proof of financial responsibility. There is no distinction to be found on this basis. These same requirements apply after a revocation as well as after a suspension. 75 Pa.C.S.A. § 1746.

Further, we find no other theory on which Parfitt should not be applied to a suspended license as well as a revoked one.

We conclude, therefore, that one cannot be convicted under 75 Pa.C.S.A. § 1543(a) or under 75 Pa.C.S.A. § 1573 after the period of suspension has expired.

III.

We are painfully aware that this reasoning mandates the reversal of the instant convictions. To the extent that this result may encourage the cynical belief among offenders that the criminal justice system can be “beaten” by recourse to the appellate courts, we regret the action that we take.

However, such a consideration must not deter us from deciding the cases before us on principles of law. In the case before us the law is clear.

It is not enough to say that the appellant has most probably shown a disrespect for the law; or even that, under these facts, he might have been charged with the violation of other laws.

The only legal question before us is whether he could have been found guilty of the crimes with which he was charged. We have answered this question in the negative.

Order of judgment of sentence reversed.

      . This disposition makes it unnecessary «for us to reach the second issue.

      . An official of that Department testified below that it was their policy to have an indefinite suspension period run with the definite, six month, one. Thus both suspensions would expire at the same time.

      . The Court noted that another offense, driving without a license, was applicable to these circumstances.

      . Nor did Parfitt itself make any such distinction.


author: POPOVICH, Judge:

text:
    467 A.2d 386
    COMMONWEALTH of Pennsylvania v. Alvin CHACKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1983.
    Filed Oct. 28, 1983.

      Neil I. Mittin, Philadelphia, for appellant.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

Appellant, Alvin Chacker, appeals from the Order of the Court of Common Pleas of Montgomery County denying his “Petition To Expunge A Criminal Record.” We reverse.

As far as this Court can deduce from the uncontested facts appearing in the record, appellant was arrested on September 20, 1979 and charged with Criminal Conspiracy (18 Pa.C.S.A. § 903) and violation of The Controlled Substance, Device and Cosmetic Act. (35 Pa.C.S.A. § 780-113(a)). Thereafter, appellant’s timely motion to suppress the 3 to 5 pounds of marijuana transferred to another’s vehicle prior to his arrest, along with $1,800 in cash found in his vehicle, was granted. As a result thereof, the Commonwealth was “precluded” from proceeding to trial and moved to nolle prosequi the charges lodged against the appellant. Such an Order was entered by the court on January 23, 1980.

On September 17, 1981, the appellant filed a petition seeking to expunge his arrest record on the grounds that:

2. That on January 23, 1980, ... before the Honorable Richard Lowe, all charges against the Petitioner were nolle pros.
3. That your Petitioner is presently thirty-seven (37) years old and lives at 1228 Glenview Street, Philadelphia, PA 19111.
4. That your Petitioner is presently self-employed as an investor in gold coins, commodities and real estate.
5. That your Petitioner has never been previously convicted of any crime and that the photographs, fingerprints and records of your Petitioner are still in the files of the Lower Merion Township Police Department duplicates thereof have been transferred to the Pennsylvania State Police and the Federal Bureau of Investigation which remain in their respective files.
6. That the presence of the aforesaid records in the files of the agencies heretofore described are unjustified and will be harmful to your Petitioner’s reputation and is likely to interfere with his earnings and livelihood.
(Emphasis added)

The Commonwealth, in its answer to the petition to expunge, specifically denied Points 3-6 and followed each with the phrase: “Commonwealth is with insufficient information upon which to form a belief as to the truth of the averment and therefore denies same and demands strict proof at the time of hearing.” (Emphasis added) Following the hearing to expunge, at which the appellant was the only person to testify or present evidence on the question raised (the Commonwealth merely cross-examined Chacker without making any separate statement on the record as to why the petition should not be granted), the court denied the relief requested. This appeal followed.

Appellant complains that because the Commonwealth did not satisfy its burden of justifying, by compelling evidence, the retention of his arrest record, the court erred in entering the Order denying his petition. Aside from the contention that the Commonwealth failed in its burden, appellant asserts that his age (37), job (commodities broker) and “the continuation of his arrest record would hamper his chances of employment with other commodity broker houses.” The Commonwealth counters with the only argument appearing in its brief to justify affirmance of the lower court’s denial Order, i.e., “the Commonwealth’s need to maintain records of individuals who, more probably then [sic] not, are engaged in illicit drug traffic____” To buttress this “more probably than not” averment, the Commonwealth directs us to the ruling by the district justice finding that a prima facie case had been made out against the appellant so as to warrant his being bound over for trial in the court of common pleas. We disagree with the Commonwealth’s logic {see note 1, supra), as well as the justification proffered by the hearing court below, for reasons that will be discussed infra.

Preceding our determination concerning the wisdom of the lower court’s denial of appellant’s petition is the requirement that we be satisfied that the correct party was imposed with the burden of affirmatively proving its case at the expungement hearing. See Commonwealth v. Rank, 312 Pa.Super. 572, 459 A.2d 369 (1983). This is crucial, especially in the case at bar, since the failure to meet such a burden dictates whether an evaluation of the lower court’s balancing of competing interests (i.e., weighing the individual’s due process interest in being free from the stigma of an arrest record against the state’s interest in maintaining accurate records relating to persons suspected of criminal activity, see Commonwealth v. Hughes, 295 Pa.Super. 304, 441 A.2d 1244 (1982),) needs to be made. See In re Haef-ner, 291 Pa.Super. 604, 606, 436 A.2d 665, 666 (1981).

On this question of burden of proof at an expungement hearing, our Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) had the occasion to clarify the “somewhat inconsistent” Superior Court cases dealing with the subject. In Wexler, a search of appellants’ residence, in particular the bedroom of the daughter (Vicki), produced marijuana and drug paraphernalia. The daughter’s father (Martin) was arrested and charged with corruption of a minor, while Vicki was arrested for possession with intent to manufacture or deliver a controlled substance and conspiracy. It was not until the preliminary hearing that Mr. Wexler’s wife (Estelle) was arrested and charged with corruption of a minor and conspiracy. At this time Mr. Wexler was informed that his complaint would be amended to add the charge of conspiracy.

Before the appellants were brought to trial, Vicki entered into a consent decree pursuant to the Juvenile Act (42 Pa.C.S.A. § 6340) and, in accordance thereto, was released to the care and custody of her parents. Within 3 months of the entry of the consent decree the Commonwealth filed a petition to nolle prosequi the charges against Martin and Estelle. The petition was granted and, thereafter, the appellants sought to have their arrest records expunged. However, following a hearing, the court denied the request and this Court affirmed per curiam. In the course of reversing, our Supreme Court in Wexler found that the hearing court had erred in relying exclusively on the asserted lawfulness of the arrests and the judge’s conclusion at the preliminary hearing that the Commonwealth had presented a prima facie case. It then went on to address the question of which party should bear the burden in expungement cases.

Consistent with its earlier disapproval of a trial court’s reliance upon the prima facie finding at a preliminary hearing, the Wexler Court refused to endorse Chase v. King, 267 Pa.Super. 498, 406 A.2d 1388 (1979) because it was interpreted as holding that, despite the accused’s acquittal on the ground of mistaken identity, “since the Commonwealth had established a prima facie case at trial the appellant bore the burden of affirmatively demonstrating non-culpability at his expungement hearing.” 494 Pa. at 330, 431 A.2d at 880. More to the point, the Supreme Court, in extrapolating a standard from this Court’s prior decisions as to the burden of proof matter, made some observations that are quite relevant to the case sub judice; viz.:

Rather, if the Commonwealth does not bear its burden of proof beyond a reasonable doubt (which occurred in Chase), or admits that it is unable to bear its burden of proof (as in the present case), the Commonwealth must bear the burden of justifying why the arrest record should not be expunged. This position is consistent with other cases in the Superior Court. E.g., Commonwealth v. Welford, [279] Pa.Super. [300], 420 A.2d 1344 (1980); Commonwealth v. Iacino, [270 Pa.Super. 350, 411 A.2d 754 (1979) ]; Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979); Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977); Cf., Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978).
The Commonwealth did not advance any reason at the expungement hearing why retainment of appellants Martin and Estelle Wexler’s arrest records is necessary. In support of its position the Commonwealth, in its brief, simply underscored a portion of testimony elicited at the preliminary hearings, thereby suggesting that appellants “could not have helped but know of [their daughter’s drug dealing]”, and that “in light of these circumstances retention of the arrest records is in the interests of society ...” Nothing could be more vague and less persuasive.
No analysis of Mr. and Mrs. Wexler’s particular cases was made, nor special facts cited which convince us of the necessity of retaining their arrest records. The mere assertion of a general interest in maintaining accurate records of those accused of crime is not convincing. Commonwealth v. Welford, supra. Thus, we believe that the Commonwealth has not proffered compelling evidence to justify the retention of Martin and Estelle Wexler’s arrest records and conclude the hearing court abused its discretion in not ordering expungement.

Id., 494 Pa. at 330-332, 431 A.2d at 880-881.

We read the unequivocal language in Wexler to foreclose explicitly a hearing court from continuing to shift the burden of persuasion to the petitioner seeking expungement merely because the Commonwealth made out a prima facie case of guilt on the part of the petitioner. Thus, under Wexler, the burden to present compelling evidence against expungement is placed upon the Commonwealth if it has failed to establish the accused’s guilt beyond a reasonable doubt (e.g., before the court of common pleas,) or the Commonwealth “admits that it is unable to bear its burden of proof.” Id. Since the appellant, instantly, was not tried in the court of common pleas, we are left with the determination of whether the Commonwealth’s admission that “[t]he suppression order precluded [it] from proceeding to trial,” (Commonwealth’s Brief at 2), is equivalent to, as required by Wexler, an admission that it is unable to bear its burden of proof. We think it is, for nowhere in the Wexler opinion was a caveat created to the two specific circumstances that trigger the Commonwealth’s burden of proof obligation, e.g., where the petitioner has succeed ed in terminating his prosecution by “legal technicalities unrelated to questions of guilt or innocence. ” In other words, it is noteworthy that Wexler created no exceptions to its holding.

Having dispensed with the burden of proof matter, we can assess whether the Commonwealth presented “compelling evidence” justifying retention of Chacker’s arrest record.

Here, as in Wexler, the Commonwealth not only failed to present any evidence warranting preservation of appellant’s record, but the only mention it made in support of such a position was in its brief, which simply “maintain[ed] that the defendant was, more probably than not, involved in illicit drug activity by virtue of the establishment by the Commonwealth of a prima facie case at the preliminary hearingf, and, thus,] the Commonwealth’s need to maintain records of individuals who, more probably then [sic] not, are engaged in illicit drug traffic, outweigh the interests of the defendant in having an arrest-free criminal history.” (Commonwealth’s Brief at 5 & n. 1) In an identical vein, we, as did the Court in Wexler, find “[n]othing ... more vague or less persuasive.” Id., 494 Pa. at 330, 431 A.2d at 880. This is especially true in light of the fact that the efficacy of a prima facie determination at a preliminary hearing and its impact upon the expungement court’s decision has been neutralized.

Additionally, we are confronted with a record barren of any scrutiny by the Commonwealth regarding appellant’s particular case. As for the hearing court, the only insight we have evidencing that it gave this matter some thought is in its citation and quotation of Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979), which favored ex-pungement that was not the result of legal technicalities unrelated to questions of guilt or innocence. Based on Rose, the hearing court went on to say that because appellant’s charges were nol prossed because of “procedural defects” the issue of his culpability vel non was not decided. It then quoted 35 Pa.C.S.A. § 780-119 and concluded with a denial of appellant’s petition.

Based on the meager record created by the Commonwealth, which had the initial burden of proving its point of denial, we are not swayed to support the ruling entered below. We do not believe that the mere pronouncement of a general concern for maintaining accurate records of those individuals who, more probably than not, are engaged in illicit drug activity is tantamount to a “compelling reason” calling for the denial of a request for the expungement of one’s arrest record. See Commonwealth v. Armstrong, 495 Pa. 506, 510, 434 A.2d 1205, 1207 (1981); Commonwealth v. Wexler, supra; Commonwealth v. Blaiklock, 291 Pa.Super. 497, 436 A.2d 226 (1981); Commonwealth v. Welford, 279 Pa.Super. 300, 420 A.2d 1344 (1980); see generally Rambo v. Commissioner, 301 Pa.Super. 135, 447 A.2d 279 (1982).

Order reversed and the record of appellant’s arrest is to be expunged.

ROWLEY, J., concurred in the result.

      . We wish to point to this statement, as well as the Commonwealth's reference in its brief at 5, n. 1 that: "... the defendant was, more probably than not, involved in illicit drug activity by virtue of the establishment by the Commonwealth of a prima facie case at the preliminary hearing. Commonwealth v. Mullen, [460] Pa. [336], 333 A.2d 755 (1975).” We do so to dispel the notion that the petitioner seeking to have his/her record expunged is saddled with the burden of proving why his/her request should be granted. Our Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) held: 1) if the Commonwealth admits that it is unable to bear its burden of proof (as was the case here), then it must bear the burden of justifying why the arrest record should not be expunged; and 2) a judge’s conclusion at the preliminary hearing that the Commonwealth had presented a prima facie case at that time is not dispositive of the issue to expunge.

        . This sounds the death knell for Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), which stated:
      Accordingly, where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied.

        Id., 258 Pa.Superior Ct. at 223, 392 A.2d at 765. Although the Wexler Court cited Mueller, it did so preceded by the signal "Cf," which “[laterally ... means ‘compare.’ ” Uniform System of Citation at 9 (13th Ed.1981) Thus, given the holding of Mueller, it seems incongruous to believe that the Wexler Court would endorse a ruling totally at odds with its own. Without continuing this discussion farther, suffice it to say that Mueller is no longer a viable decision on the burden of proof controversy, having been overruled sub silentio by Wexler.

      . The fact that appellant had testified to being arrested previously, although never before being convicted, did not shift the burden of persuasion from the Commonwealth to show by "compelling evidence” that a need existed to retain appellant’s present arrest record. To do otherwise would, in this Court’s opinion, create a per se rule that in all instances in which a petitioner has a prior arrest record he is ipso facto not entitled, or may not even be a candidate, to have his record expunged, notwithstanding the fact that the Commonwealth failed to present a scintilla of evidence to counter the petitioner’s request. The law has not developed to such a callous state as to sanction such an inflexible rule of law.


author: HESTER, Judge:

text:
    467 A.2d 391
    Mary Jane CONTE and Marion Conte, Her Husband, Appellants, v. BARNETT’S BOOTERY, INC.
    Superior Court of Pennsylvania.
    Argued June 7, 1983.
    Filed Oct. 28, 1983.

      Raymond Radakovich, Pittsburgh, for appellants.
    Louis Long, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

Following the presentation of appellants’ case in chief in the Court of Common Pleas of Beaver County, Pennsylvania, appellee’s motion for a compulsory nonsuit was granted. Ten days following the entry of the nonsuit, appellants filed a motion to remove the nonsuit. Said motion was not briefed, argued, or ruled upon in the lower court; instead, appellee reduced the nonsuit order to judgment, and appellants filed this appeal.

Appellee moved to quash the appeal for appellants’ failure to file a timely motion to remove the nonsuit in the trial court prior to taking an appeal. Appellee’s motion was denied by this Court in its Order dated August 3, 1981, without prejudice to the parties to argue the issue of waiver along with the merits on appeal.

Appellants, Mary Jane Conte and Marion Conte, her husband, filed a Complaint in Trespass against appellee, Barnett’s Booterie, Inc., for injuries which Mrs. Conte sustained as a result of falling down a flight of stairs inside appellee’s bootery in Rochester, Beaver County, Pennsylvania. Mrs. Conte allegedly slipped on ice cream situate on the first or top step. The lower court entered the compulsory nonsuit due to its opinion that appellants presented no evidence as to how the ice cream was placed on the steps and whether it had been there long enough to impute knowledge thereof to appellee.

We must first determine whether the mere entry of a compulsory nonsuit is a final appealable order. As alluded to above, appellants’ motion to take off the nonsuit, though filed, was never ruled upon by the lower court. This appeal was taken following appellee’s reducing the order to judgment.

Pennsylvania Rule of Civil Procedure 224 authorizes a trial court to enter a nonsuit for the plaintiff’s failure to plead and prove a prima facie case. The order entering a nonsuit is not a final appealable order triggering the exclusive appellate jurisdiction of the Superior Court under Act of July 31, 1970, P.L. 673, Art. Ill, § 302, 17 P.S. § 211.302. The right to appeal does not exist until a motion to have a nonsuit taken off is first filed with and denied by the trial court. Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982); Kukich v. Serbian Eastern Orthodox Church, 415 Pa. 28, 202 A.2d 77 (1964); Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938). Under the circumstances here, a final order terminating appellants’ procedural rights was not entered below; therefore, we have no jurisdiction to entertain this appeal.

Appellee argues that this case should not be remanded for the purpose of providing the lower court with an opportunity to consider appellants’ motion to take off the nonsuit. Appellee maintains that appellants waived their right to move for removal, and to file an appeal from any denial thereof, due to a failure to proceed according to the Beaver County Rules of Civil Procedure. Local Rule 13.31 requires the filing of a motion to take off a nonsuit within seven days of the entry of the nonsuit. Local Rule 13.20 further requires that such motion be filed in open court. It is not disputed that appellants filed their motion with the Pro-thonotary of Beaver County ten days following entry of the nonsuit order; therefore, Local Rules 13.31 and 13.20 were violated.

Courts of Common Pleas have the power to prescribe their own sets of procedural rules “as the interest of justice or the business of the court may require.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 323. Occasionally, the rules adopted by the local courts conflict with those adopted by the Pennsylvania Supreme Court. That is true in the instant case. Pennsylvania Rule of Civil Procedure 227.1 provides that all post-trial motions, including a motion for removal of a nonsuit, shall be filed within ten days following entry of the order for nonsuit.

In Acri v. Wintermeyer, 285 Pa.Super. 486, 428 A.2d 150 (1981), a local rule provided for the filing of an appeal from an award of a Board of Arbitrators within twenty days following notice of the filing of the Arbitrators’ report with the Prothonotary. Conversely, the provisions of 42 Pa.C.S.A. § 5571(b) required the filing of an appeal from a final order within thirty days following the entry of said order. The Acri court recognized the power of local courts to promulgate their own rules; however, it held that such power was not without limitation. Such local rules are invalid to the extent they conflict with Pennsylvania Supreme Court rules. As a result, Beaver County Rule 13.31 is invalid to the extent it requires the filing of a motion to remove nonsuit within seven days of the entry of nonsuit. The ten-day period provided in Pa.R.C.P. 227.1 controls. Appellant complied with this rule by filing his motion to remove the nonsuit on the tenth and final day; therefore, he did not waive his right to appeal on those grounds.

It is appellee’s contention, however, that appellants also waived their right to appeal due to their failure to file the motion in open court which prevented the trial court’s knowledge of said motion and left it free to enter judgment.

Although appellants did not strictly comply with Beaver County Rule 13.20 insofar as they failed to present their motion in open court, we will not quash their appeal on that ground alone. Appellants substantially complied with Rule 13.20 by timely filing their motion with the Prothonotary.

Case remanded for a hearing on appellants’ motion to take off the compulsory nonsuit. Jurisdiction relinquished.

SPAETH, J., concurred in the result.


author: WIEAND, Judge:

text:
    467 A.2d 601
    Richard BILDSTEIN v. Lorraine E. McGLINN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1983.
    Filed Oct. 21, 1983.

      Robert C. Steiger, Philadelphia, for appellant.
    Phillip H. Baer, Philadelphia, for appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Lorraine E. McGlinn has appealed from an order of the trial court which denied her motion to strike or open a default judgment entered against her by Richard Bildstein. We agree fully with the trial court that there is no record defect that would permit a striking of the default judgment. We are constrained to conclude, however, that the circumstances surrounding the entry of the default judgment were such as to compel, in good conscience, an opening of the judgment and that it was an abuse of discretion to refuse to do so.

A petition to open a default judgment is an appeal to the court’s equitable powers. Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 130 (1971); Kraynick v. Hertz, 443 Pa. 105, 109-110, 277 A.2d 144, 147 (1971); Hutchings v. Trent, 304 Pa.Super. 376, 378, 450 A.2d 729, 730 (1982); Penneys v. Richard Kastner Company, Inc., 297 Pa.Super. 167, 169, 443 A.2d 353, 354 (1982). The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law. Kennedy v. Frank L. Black, Jr., Inc., 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981); Balk v. Ford Motor Company, supra, 446 Pa. at 140, 285 A.2d at 131; Duffy v. Gerst, 286 Pa.Super. 523, 532-533, 429 A.2d 645, 650 (1981); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 134, 403 A.2d 577, 579 (1979). In determining whether a judgment by default should be opened, a court must ascertain whether there are present any equitable considerations in the factual posture of the case which require that it grant to a defendant against whom the judgment has been entered an opportunity to have his day in court and to have the cause decided upon the merits. In so doing, the court acts as a court of conscience. Kraynick v. Hertz, supra 443 Pa. at 111, 277 A.2d at 147. Accord: Ecumenical Enterprises, Inc. v. Nadco Construction, Inc., 253 Pa.Super. 386, 394, 385 A.2d 392, 396 (1978). In general, a default judgment in a trespass action may be opened when the petition to open has been filed timely and the petitioner is able to demonstrate a reasonable excuse for the default. In such cases, a meritorious defense need not be shown if the equities are otherwise clear. See: Balk v. Ford Motor Company, supra 446 Pa. at 140 & n. 3, 285 A.2d at 130 & n. 3; Kraynick v. Hertz, supra 443 Pa. at 109, 277 A.2d at 146; Hutchings v. Trent, supra 304 Pa.Super. at 378, 450 A.2d at 730; American Vending Company, Inc. v. Brewington, 289 Pa.Super. 25, 28, 432 A.2d 1032, 1034 (1981); Corprew v. Prudential Insurance Company of America, 286 Pa.Super. 302, 305, 428 A.2d 1003, 1004 (1981). The rules permitting the entry of default judgments “were designed to prevent a dilatory defendant from unreasonably thwarting plaintiffs efforts to establish a claim. They were not intended ‘to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation.’ ” Shainline v. Alberti Builders, Inc., supra 266 Pa.Super. at 139, 403 A.2d at 582 quoting Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 445, 368 A.2d 802, 804 (1976). Accord: Queen City Electrical Supply Co., Inc. v. Soltis Electric Co., Inc., 491 Pa. 354, 361, 421 A.2d 174, 178 (1980); Kraynick v. Hertz, supra 443 Pa. at 111, 277 A.2d at 147; Tronzo v. Equitable Gas Co., 269 Pa.Super. 392, 395-388, 410 A.2d 313, 315 (1979); Safeguard Investment Co. v. Energy Service Associates, Inc., 258 Pa.Super. 512, 515, 393 A.2d 476, 477-478 (1978).

The facts of the instant case, as found by the trial court, disclose that the appellant, Lorraine McGlinn, and the appel-lee, Richard Bildstein, had been involved in a two car collision in Philadelphia on February 12, 1980. Bildstein filed a complaint in trespass in the Court of Common Pleas of Philadelphia County on October 29, 1980. Mrs. McGlinn, crippled as a result of the accident, was confined to bed in her home in Delaware County. Service of the complaint was made by deputizing the Sheriff of Delaware County, who handed a copy of the complaint to Mrs. McGlinn’s adult daughter, Terry, on November 20, 1980, at 7:30 a.m. Mrs. McGlinn received the complaint from her daughter and immediately contacted her personal attorney, Edward J. Devery, Esquire. On November 22, 1980, Devery wrote to Phillip H. Baer, Esquire, appellee’s counsel, acknowledged receipt of the complaint and requested a reasonable extension of time within which to answer, explaining that he was forwarding the complaint to Mrs. McGlinn’s insurance carrier. The insurance carrier received the complaint and, on December 3, 1980, forwarded the file to Robert C. Steiger, Esquire, with instructions to defend the action. Steiger checked the docket of the prothonotary in Philadelphia on December 10, 1980 and observed that no service of process had been noted on the docket. Steiger continued to check the docket periodically, but he did not enter an appearance for appellant or file a pleading as the docket still did not reflect service of process on Mrs. McGlinn and he did not wish to waive a defect in service, if any existed. On January 8, 1981, Steiger sent the following letter to McGlinn’s insurance carrier:

“We have made several efforts to file an appearance in the above matter but the docket still does not reflect any service on the defendant. Would you be so kind as to check with the insured and determine whether or not service was properly made in this matter.”

Thereafter, Mrs. McGlinn provided erroneous information that her copy of the complaint had been sent by certified mail and not by personal service. On February 3, 1981, Mrs. McGlinn received a notice of intent to enter a default judgment against her. She contacted Devery, her personal attorney, who promptly forwarded it to Steiger. Steiger placed two calls to Bildstein’s counsel, which were not returned. On February 5, 1981, therefore, he sent the following letter to Bildstein’s attorney:

“Dear Mr. Baer:
I have for acknowledgment your letter of February 2 addressed to my client in the above matter. I have checked the docket and discussed this with the defendant and to the best of my knowledge, there has been no service of process. Would you kindly let me know when and how service was effected in this matter.”

Baer did not respond until February 26, 1981 when he caused the following letter to be sent to Attorney Steiger:

“Dear Mr. Steiger:
In reply to your letter of February 5, 1981, service was made by the Sheriff of Delaware County on November 20, 1980. Please advise whether J.C. Penney intends to enter a defense in your insured’s behalf.”

Meanwhile, Bildstein’s attorney had entered a default judgment against McGlinn on February 19, 1981. When he wrote to Steiger on February 26, 1981, Baer made ho reference to the fact that a default judgment had already been entered. When Steiger received Baer’s letter, Steiger immediately contacted the Delaware County Sheriff’s Office and verified that service had been made on November 20, 1980. He entered his appearance the same day, on February 27, 1981. Even then, however, the docket did not reflect service of process. It also failed to reflect that a default judgment had been entered.

Appellant contends that neither she nor Steiger received notice of the default judgment until March 18, 1981. The trial court found as a fact that notice had been sent pursuant to Pa.R.C.P. 236 but did not determine when such notice was sent. James R. Viola, the clerk who made entries on the docket in the Prothonotary’s office, was deposed and stated that entry of the default judgment against appellant was not made on the docket until sometime after March 2, 1981.

The petition to open or strike the default judgment was filed on March 24, 1981. The trial court concluded that it had not been filed timely. However, “[timeliness of a petition to open a default judgment is measured from the date that notice is received of entry of [the] default judgment.” Peoples National Bank of Susquehanna County, Pa. v. Hitchcock, 278 Pa.Super. 375, 384, 420 A.2d 589, 594 (1980). Accord: Ruczynski v. Jesray Construction Corporation, 457 Pa. 510, 512, 326 A.2d 326, 328 (1974); Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., 271 Pa.Super. 566, 570, 414 A.2d 628, 630 (1979); Maruccio v. Houdaille Industries, Inc., 254 Pa.Super. 560, 564-565, 386 A.2d 91, 94 (1978): In the instant case, appellant’s counsel averred that notice of the default judgment had not been received until March 18, 1981; and the clerk testified that the default judgment could not have been entered on the docket until sometime after March 2, 1981. It seems abundantly clear, therefore, that notice could not have been received until sometime after March 2, 1981. Under these circumstances, there can be no doubt that the petition to open, filed on March 24, 1981, was timely. Cf. Van Horn v. Alper, 253 Pa.Super. 524, 529, 385 A.2d 462, 465 (1978). Moreover, Baer’s failure to inform Steiger of the default judgment in Baer’s letter of February 26, 1981 must also be considered. It concealed the fact that a default judgment had already been entered and precluded an immediate petition to open.

Appellant’s explanation for the default in entering an appearance was both reasonable and compelling. Prior decisions have held that the power to open a default judgment will usually be exercised where a default has been the result of a mistake or oversight by counsel. See: Ecumenical Enterprises, Inc. v. Nadco Construction, Inc., supra 253 Pa.Super. at 393-394, 385 A.2d at 396; Alexander v. Jesray Construction Co., 237 Pa.Super. 99, 103, 346 A.2d 566, 568 (1975). See also: Peoples National Bank of Susquehanna County, Pa. v. Hitchcock, supra 278 Pa.Super. at 382, 420 A.2d at 593; Shainline v. Alberti Builders, Inc., supra 266 Pa.Super. at 140 n. 6, 403 A.2d at 582 n. 6; Moyer v. Americana Mobile Homes, Inc., supra 244 Pa.Super. at 445, 368 A.2d at 804; Johnson v. Yellow Cab Company of Philadelphia, 226 Pa.Super. 270, 272, 307 A.2d 423, 424 (1973); Samuel Jacobs Distributors, Inc. v. Conditioned Air, Inc., 223 Pa.Super. 466, 471, 301 A.2d 907, 910 (1973). In Shainline v. Alberti Builders, Inc., supra, this Court reviewed the cases involving inaction by counsel and “distinguished between unacceptable mistakes and acceptable mistakes. On the one hand, it was said, a mistake may be unacceptable because it involves the attorney’s negligence or dilatoriness, a failure to act by one who knows its implications, or a deliberate decision not to defend.” Peoples National Bank of Susquehanna County, Pa. v. Hitchcock, supra 278 Pa.Super. at 382, 420 A.2d at 592. Errors of counsel which indicate an oversight or mistake rather than a deliberate decision not to defend, have been found to constitute sufficient explanation to warrant the opening of a default judgment. See: Kennedy v. Frank L. Black, Jr., Inc., supra, 492 Pa. at 403, 424 A.2d at 1253; Shainline v. Alberti Builders, Inc., supra, 266 Pa.Super. at 139, 403 A.2d at 581-582; Tice v. Nationwide Life Insurance Co., 253 Pa.Super. 118, 124, 384 A.2d 1257, 1260 (1978); Moyer v. Americana Mobile Homes, Inc., supra, 244 Pa.Super. at 445, 368 A.2d at 805; Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 370, 335 A.2d 371, 374 (1975); Johnson v. Yellow Cab Company of Philadelphia, supra 226 Pa.Super. at 272, 307 A.2d at 424; Samuel Jacobs Distributors, Inc. v. Conditioned Air, Inc., supra, 223 Pa.Super. at 471, 301 A.2d at 910.

The record in the instant case suggests that counsel’s conduct, if mistaken, was neither dilatory nor a deliberate decision not to defend. Counsel was diligent in attempting to ascertain the means by which service had been made. The error which resulted in a judgment being entered against appellant arose from an overabundance of caution. However, it was the type of error which has usually been held to constitute sufficient legal justification to support the opening of a default judgment. See: Johnson v. Yellow Cab Company of Philadelphia, supra; Samuel Jacobs Distributors, Inc. v. Conditioned Air, Inc., supra. The absence of an appropriate docket entry in Philadelphia, where the suit was pending, and also the delay demonstrated by Bildstein’s counsel in responding to pertinent inquiries, contributed to this error. These circumstances required that the default judgment be opened; and it was an abuse of discretion to refuse to do so.

The order denying the motion to open the judgment is reversed. The default judgment is opened, and the case is remanded for further proceedings. Jurisdiction is not retained.