author: BECK, Judge:

text:
    467 A.2d 1159
    COMMONWEALTH of Pennsylvania v. Otis R. OWENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1983.
    Filed Nov. 4, 1983.

      Paul Gordon Hughes, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   BECK, Judge:

This appeal is a claim of ineffectiveness of trial counsel brought under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. Appellant Otis R. Owens charges that his trial counsel was ineffective for failing to retain a psychiatrist or psychologist regarding the possibility of a plea of not guilty by reason of insanity or a defense of diminished mental capacity. He also claims his counsel was ineffective because of his lack of preparation for trial, and his failure to petition to withdraw a guilty plea.

Owens was arrested in April 1975 for the murder of the Reverand John Wesley McDonald and the shooting of his wife. Owens pleaded guilty to third degree murder and aggravated assault on September 16, 1975. He was sen-fenced to seven to fifteen years for murder, and five years for aggravated assault, to run consecutively. A petition to reconsider sentence was denied. No petition to withdraw the guilty plea was filed, and no direct appeal was taken. A hearing on the P.C.H.A. petition was held in June 1980 and this appeal followed a denial of relief. Owens is now represented by new counsel.

The circumstances of Owens’ arrest were these: Owens met Paul McDonald, the son of the Reverend and Mrs. McDonald, in order to arrange the purchase of a television set. Owens agreed to buy the set and stated he would return shortly with the money. When Owens returned, he learned from the young McDonald that the set was already sold. Owens thereupon threatened to kill Paul McDonald; followed him to his home; and ultimately shot both of Paul’s parents, killing his father and seriously wounding his mother. Police, who arrived on the scene almost immediately, found spent ammunition upon Owens’ person.

Prior to trial, Owens told his counsel that he had suffered a head injury several years earlier and that surgery had been performed to remove a blood clot. Counsel then consulted the neurosurgeon who performed the operation, Robert P. Kamrin, M.D., to find out whether Owens’ violent outbursts and uncontrolled behavior would support an insanity defense. In Dr. Kamrin’s view Owens was capable of distinguishing right from wrong. On the basis of an exchange of letters with Dr. Kamrin, counsel concluded that he did not have a foundation for an insanity defense, and decided not to prepare such a defense. N.T.P.C.H.A. 43-47.

The issue here is whether trial counsel was ineffective for failing to pursue the matter of Owens’ mental state with a psychologist or psychiatrist.

We begin by noting that this is not a challenge to expert opinion at trial. It is a charge of not procuring the proper expert in order to prepare a defense in Owens’ behalf. Dr. Kamrin, who was consulted during discovery, was an eminently suitable physician to consult on the question in issue because he was the specialist who had treated Owens for his head injury. Kamrin’s specialty, neurosurgery, is a field of medicine which treats disorders of the central nervous system and which is closely related to the fields of psychiatry and psychology in the study of complex upper level functions of the brain. See A. Moensses, R. Moses, and F. Inbau, Scientific Evidence in Criminal Cases, §§ 3.10-3.13 (1978).

Counsel’s correspondence with Dr. Kamrin shows that counsel gave serious consideration to the viability of a possible defense based on Owens’ mental state, and decided, after receiving professional advice, not to go forward with such a defense.

The test for evaluating effectiveness of counsel is whether the underlying claim of ineffectiveness has some arguable merit, and if so, whether the course chosen by counsel had some reasonable basis. Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349, 427 Pa. 599 (1967). The function of the appellate court is not to determine whether some other alternative was more reasonable. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Price, 306 Pa.Super. 507, 452 A.2d 840 (1982).

If, arguendo, Dr. Kamrin had been called as an expert witness to testify regarding Owens’ sanity or competency, it is reasonable to assume that his opinion would have been admissable in evidence. A witness who has any reasonable basis of special knowledge on a subject may testify. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). Under Pennsylvania law, a physician may testify as an expert in a field outside his own specialty. Arnold v. Loose, 352 F.2d 959 (3d C. 1965), reh. den. (construing Pennsylvania law in an action brought under the Wrongful Death and Survival Acts). Once an expert shows some factual basis for his opinion, his testimony is admissable. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979); Commonwealth v. Oates, 269 Pa.Super 157, 409 A.2d 112 (1979). A physician need not have any field of specialization in order to be competent to offer expert testimony. Workmen’s Compensation Appeal Board v. Branch Motor Express, 18 Pa.Commw. 262, 334 A.2d 847 (1975).

We are guided by two Supreme Court cases in which claims of ineffectiveness for failure to prepare an insanity or incompetency defense were dismissed as meritless. In Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980) the Court found no ineffectiveness on the part of defense counsel for not raising the issue of the accused’s competency to stand trial, despite a recent history of mental illness and medication:

It is clear that counsel gave this issue careful consideration. He utilized his own discerning observations and additionally relied upon three experts’ opinions in arriving at his reasoned judgment that appellant was competent to stand trial. A decision by counsel not to take a particular action does not constitute ineffectiveness if it is based upon a reasonable conclusion that there will be no benefit and is not the result of sloth or ignorance of available alternatives. Commonwealth v. Hubbard, 485 Pa. 353; 402 A.2d 999 (1979) (491 Pa. at 503, 421 A.2d at 658).

While in the instant case only one expert instead of three was consulted, we believe that Dr. Kamrin’s familiarity with Owens’ medical history over the years made his opinion a sufficient basis upon which trial counsel could effectively make his decision.

Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982) held that failure to mount an insanity defense did not constitute ineffectiveness where counsel considered the issue carefully, and rejected it because another line of defense had a reasonable basis designed to protect the defendant’s interest. Owens’ counsel, after consulting an appropriate medical authority, decided that Owens’ best interest was served by a guilty plea to third degree murder. This option was discussed with Owens, with Owens’ family, and with the District Attorney at some length. Defense counsel testified that after information from Dr. Kamrin convinced him that an insanity or incompetency defense would fail, and considering that Owens would face a jury trial in which eyewitnesses would testify against him, and that Pennsylvania had a death sentence at the time that Owens was facing trial, he decided that a third degree conviction, which the Commonwealth was offering as a plea, was the most favorable resolution of the case that he could hope to obtain. N.T.P.C.H.A. 54-6.

Since it is reasonable to assume that Dr. Kamrin would have qualified as an expert witness on Owens’ condition at a trial, it was certainly reasonable for counsel to have taken Dr. Kamrin’s advice regarding the lack of viability of an insanity or incompetency defense for the accused.

We, therefore, hold when trial counsel seeks advice on whether to prepare an insanity or incompetency defense, the consultation should be with a qualified professional who has a reasonable basis of special knowledge, in order to assist in making that decision an informed decision. In this instance, the consultation meets that standard. Owens cites no case which imposes an obligation on trial counsel to consult a psychiatrist or psychologist in order to make a decision on whether to pursue such a defense, and we decline to place this obligation on trial counsel as a test of Sixth Amendment effectivenss. We therefore find no ineffectiveness of trial counsel on this issue.

We have reviewed Owens’ second claim, that his counsel should have arranged for examinations and photographs of Owens’ home in order to support an insanity plea. In fact, counsel did petition the court for a medical investigator, who turned up nothing of value in hospital records or in interviews of neighbors of the victims. N.T.P.C.H.A. 47-49. In light of our discussion of the first issue, and Dr. Kamrin’s conclusions and advice, we find it unnecessary to respond in detail to the second issue, other than to say that we find no merit in it.

Owens’ final contention is that his counsel was ineffective for failing to challenge a defective guilty plea. He contends that trial counsel should have petitioned to withdraw the guilty plea as involuntarily entered, and lacking the essential elements of a knowing and intelligent waiver of a right to trial by jury. Owens, who never requested trial counsel to file a petition to withdraw his guilty plea nor to appeal on the basis of involuntariness, did in fact request his trial counsel to petition for a reduction in his sentence. N.T.P.C. H.A. 69. Such a petition was filed in response to his request, and ultimately denied.

It is axiomatic that a disappointed expectation regarding a sentence does not constitute grounds for withdrawing a guilty plea. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Upon entry of a guilty plea, all challenges to the plea are waived except challenges to voluntariness and to the jurisdiction of the court. Allegations of ineffectiveness of counsel in connection with a guilty plea will provide a basis of relief only if ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. den. 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781; Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978); Commonwealth v. Fultz, 316 Pa.Super. 260, 462 A.2d 1340 (1983). Once a defendant has pleaded guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976). The burden of proof in a P.C.H.A. hearing is upon the petitioner. Commonwealth v. McCloud, 312 Pa.Super. 29, 458 A.2d 219 (1983).

In this challenge, Owens claims that his trial counsel should have established involuntariness by asserting that the plea colloquy omitted mention of burden of proof, the accused’s right to remain silent, that the silence could not be used against him, and a definition of reasonable doubt. The guidelines for a sufficient guilty plea are contained in the comment Pa.R.Crim.P. 319. The record clearly reveals that in an extensive colloquy all the requirements of Rule 319 were met (N.T. September 16, 1975, 80-95). Moreover, prior to the colloquy in court, Owens had the benefit of a pre-plea discussion with counsel and his family. N.T. 72.

Whether a guilty plea can withstand a challenge must be determined from the totality of circumstances surrounding the plea, and the challenge must go beyond a mere claim of technical violation. Commonwealth v. Shaffer, supra; Commonwealth v. Martinez, supra. A challenge which is made after sentence is imposed requires a showing of manifest injustice. Commonwealth v. Wilcox, 189 Pa.Super. 312, 458 A.2d 575 (1983); Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983). In Owens case, we find no showing of manifest injustice resulting from the plea, and no ineffectiveness of counsel for failing to challenge its voluntariness. Cf. Commonwealth v. Siebert, 305 Pa.Super. 321, 451 A.2d 552 (1982) (failure to state either the phrase “presumed innocent” or “presumption of innocence” did not render guilty plea invalid); Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982) (guilty plea colloquy not defective for failure to include statement about right to trial without a jury); Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982) (guilty plea colloquy withstands challenge that it was defective for failing to mention that jury verdict must be unanimous).

The order of the lower court denying relief under the Post Conviction Hearing Act is affirmed.

      . See Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974) on the close relationship of neurosurgery and clinical psychology in treating organic brain malfunction.

      . The minimum content of the colloquy imposed by the Rule is:
      (1) Does the defendant understand the nature of the charges to which he is pleading guilty?
      (2) Is there a factual basis for the plea?
      (3) Does the defendant understand that he has the right to trial by jury?
      (4) Does the defendant understand that he is presumed innocent until he is found guilty?
      (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
      (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?


source: Caselaw Access Project

license: Public Domain

text:
    467 A.2d 1164
    Hermine E. TANNER, Administratrix of the Estate of Alicia Marie Tanner, Deceased and Hermine E. Tanner, Willie Tanner and Gloria Tanner v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 18, 1983.
    Filed Nov. 4, 1983.

      Alexander Kerr, Philadelphia, for appellant.
    George J. O’Neill, Philadelphia, for appellees.
    Before HESTER, BROSKY and BECK, JJ.
   BECK, Judge:

This appeal arises from a denial of Allstate Insurance Company’s motion to amend its pleadings in an action initiated by Hermine E. Tanner et al. for benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act. For the reasons that follow, we modify the lower court’s order in order to allow one of the requested amendments.

Alicia M. Tanner died in an automobile accident on March 14, 1977, in which her parents Hermine and Willie Tanner, and her sister Gloria Tanner were also injured. The Tanners’ insurance carrier, Allstate, paid $5,785.70 to the estate of Alicia for funeral, medical and hospital expenses. The last payment with respect to Alicia was made on May 5, 1978.

More than two years after this last payment, on June 24, 1980, an action was initiated by Hermine E. Tanner as administratrix of the estate of Alicia, and Hermine E. Tanner, Willie Tanner and Gloria Tanner individually, for work loss benefits, survivors’ benefits, attorney fees, interest, and punitive damages against Allstate. Allstate filed an answer and new matter denying liability on August 19, 1980. A reply from the Tanners followed on August 22, 1980.

On February 3, 1981, a little less than six months after filing the initial answer and new matter, Allstate filed a motion to amend its pleadings. The motion states that after the original answer had been filed, the Supreme Court issued on September 22, 1980 its decision in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), affirming this Court in Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1979). Heffner allowed both work loss benefits and survivors’ benefits to survivors of a person fatally injured in an automobile accident. Allstate wished to amend its pleadings to assert certain defenses not presented in its original answer or new matter. Specifically, Allstate wanted to include fee following in its amended pleadings:

(1) The Heffner decisions are not retroactive and do not apply to the instant case in which the plaintiff died before these decisions were filed.
(2) The Tanners are not survivors within the meaning of 40 Pa.S. § 1009.103 and are therefore not entitled to No-Fault basic loss benefits.
(3) Allstate acted reasonably with respect to the Tanners’ claims, and therefore the Tanners are not entitled to eighteen per cent interest as a penalty, nor to an award of attorney fees.
(4) The Tanners’ claim is barred by the applicable statute of limitations.

The trial court denied Allstate’s motion. The sole issue before this Court is whether Allstate should have been furnished an opportunity to file an amended pleading.

Pa.R.C.P. 1033 states:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have- happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

The decision to permit an amendment to pleadings is a matter of judicial discretion. We find that in the instant case the denial of the motion to amend was an abuse of discretion as applied to the defense of the statute of limitations.

The policy of Pennsylvania courts is that amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those instances where surprise or prejudice to the other party would result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Gregg v. Gacon Construction Company, 249 Pa.Super. 377, 378 A.2d 344 (1977); Sands v. Forrest, 290 Pa.Super. 48, 434 A.2d 122 (1981); Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

The meaning of prejudice and surprise in the context of Rule 1033 amendments to pleadings has been developed in a number of opinions. In Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (allowing an amendment to a complaint after the trial court’s decree was entered) the Court wrote:

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed____ (448 Pa. at 380, 293 A.2d at 357) (Emphasis in original; footnote omitted).

In Sands v. Forrest, supra, our Court explained that prejudice must be something more than a detriment to the other party, for to make an advantage operate as a bar to amendment would be “to destroy the right to amend except in cases when the moving party would have no reason to amend” (290 Pa.Super. at 53, 434 A.2d at 125, quoting Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-902 [1972]).

Allstate’s motion to amend was filed within six months after the original complaint was filed, about four months after the decision by the Supreme Court in Heffner, and before the instant case was listed for trial. The Tanners do not show that they have suffered prejudice or surprise by this lapse of time; i.e. they do not argue that they were lulled into inactivity by Allstate’s assertion of these defenses subsequent to the filing of the original answer rather than immediately. See Posternack, supra. We conclude that there was no reason to deny the motion on the grounds of prejudice or surprise.

In addition to the standard of prejudice or surprise, the law is also well established that a proposed amendment may be denied when it is against a positive rule of law. If the proposed amendment is against a positive rule of law, its allowance would be futile. It would cause delay and waste the resources of the court and the opposing party in having to defend against the proposed amendment. Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978); Associates of Philipsburg v. Hurwitz, 292 Pa.Super. 406, 437 A.2d 447 (1981); Chapman v. City of Philadelphia, 291 Pa.Super. 281, 434 A.2d 753 (1981).

When Allstate filed its appellate brief, there were seven cases pending before this Court which addressed issues arising from the Heffner decision, including its retroactivity and the award of attorney fees. Decisions in these cases have now been filed, and are binding in the instant case. In Baker v. Aetna Casualty & Surety Company, 309 Pa.Super. 81, 454 A.2d 1092 (1982) we reiterated the principle of Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980), and held that Heffner was a case of statutory construction, not new law. It was applicable, therefore, in cases where the cause of action accrued before Heffner but the complaint was filed after Heffner, providing the claim was not barred by the applicable statute of limitations.

Heffner is retroactive, Baker, supra; therefore any amendment challenging its retroactivity is futile and will be denied. Instantly the cause of action arose prior to Heffner (Alicia’s death occurred in 1977) and the Tanners’ complaint was filed in June 1980, after our Court decided Heffner, although prior to its affirmance by the Supreme Court. We conclude that the issue of retroactivity has been determined and Allstate cannot raise the question again. There is no reason to allow an amendment to plead this issue because the matter is now against a positive rule of law.

The question of whether the Tanners are survivors within the meaning of § 1009.103 has also been decided since Allstate filed its motion to amend. This amendment is now also against a positive rule of law and must be denied. Allstate relied on Midboe v. State Farm Mutual Automobile Insurance Company, 495 Pa. 348, 433 A.2d 1342 (1981) where a divided Supreme Court held that a child, parent, brother or sister, as well as any other relative, must establish economic dependency on the deceased to qualify as a survivor under the No-Fault Act. Subsequently, however, our Court decided Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982). Taking note that Midboe was decided by a three to three vote of the Supreme Court and therefore carried no weight as precedent, an en banc panel of this Court held that a child, parent, brother or sister did not have to establish economic dependency on the deceased in order to qualify as a survivor (although any other relative would have to prove economic dependency). For the same reason as in the question of Heffner’s applicability, we deny the motion to amend on the question of qualification as survivors.

We turn now to the last of Allstate’s proposed amendments, i.e. the defense of the applicable statute of limitations. As noted above, Baker, supra, held that Heffner was applicable retroactively “provided that the claim was not barred by the applicable statute of limitations” (309 Pa.Superior Ct. at 91, 454 A.2d at 1097). See also Keaten v. Aetna Life and Casualty Company, 309 Pa.Super. 101, 454 A.2d 1102 (1982); Thomas v. Aetna Casualty Surety Company, 309 Pa.Super. 105, 454 A.2d 1105 (1982).

The statute of limitations is an affirmative defense which must be specifically pleaded or the defense is waived. Pa.R.C.P. 1030, 1032; Fudula v. Keystone Wire and Iron Works, Inc., 283 Pa.Super. 502, 424 A.2d 921 (1981); Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9 (1981); Thompson v. Cortese, 41 Pa.Commw. 174, 398 A.2d 1079 (1979); Thompson v. Southeastern Pennsylvania Transportation Authority, 280 Pa.Super. 193, 421 A.2d 471 (1980) .

The broad and basic standard as to whether to allow an amendment to plead the statute of limitations is found in Hughes v. Pron, supra. The Hughes Court noted that the lower court’s denial of the motion to amend the Answer on the ground that the statute of limitations defense would have been of no merit was error. The Court wrote that “Such amendments should be liberally allowed except where surprise or prejudice to the other party will result or where the amendment is against a positive rule of law” (286 Pa.Super. at 425, 429 A.2d at 12).

Two recent cases decided prior to Hughes v. Pron denied defendants’ motions to amend to plead the statute of limitations. They are distinguishable from the instant appeal. In Commonwealth v. Pennsylvania Department of Transportation v. Bethlehem Steel Corporation, 486 Pa. 186, 404 A.2d 692 (1979) the Court noted that the motion to amend was filed three years after the original Complaint. In Hightower v. Bekins Van Lines Co., 267 Pa.Super. 588, 407 A.2d 397 (1978), reargument denied (1979) the motion came two years and five months after the original Answer. From these two cases we can conclude that long unexplained delay between the original pleading and the motion to amend will be considered as a factor in deciding whether to permit the amendment. In the instant case, the appellant filed the motion to amend in timely manner, and therefore Bethlehem Steel and Hightower are not controlling.

In addition to Pennsylvania law, federal law provides guidance on this issue. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), a decision joined by seven members of the Supreme Court, established the guidelines for subsequent decisions in the federal courts. Foman v. Davis upheld the principle that leave to amend pleadings under Federal Rule of Civil Procedure 15(a) should be freely given. “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” 371 U.S. 182, 83 S.Ct. 230, 9 L.Ed.2d 225-6, quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 86. Therefore, Foman v. Davis ruled, leave to amend should be granted in the absence of any apparent or declared reason, such as undue delay, bad faith or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment. Foman v. Davis went on to hold that “outright refusal to grant the leave [to amend] without any justifying reason appearing for the denial is not an exercise of discretion; it is merely an abuse of that discretion and inconsistent with the spirit of the Federal Rules” (371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226) (emphasis added).

Subsequent to Foman, allowing amendment to plead the statute of limitations became regular practise. Groninger v. Davison, 364 F.2d 638 (8th Cir.1966) allowed a statute of limitations defense to be added to pleadings after the pretrial conference had taken place. Wyshak v. City National Bank, 607 F.2d 824 (9th Cir.1979) held that such an amendment should be allowed so long as the limitations rule, if applicable, would be effective at the outset of the plaintiff’s suit. For the same reason, Eastridge v. Fruehauf Corp., 52 F.R.D. 129 (D.C.Ky.1971) allowed the defense to amend because the plaintiff was not thereby exposed to any additional problems, nor any new risks, that he did not have at the outset of the proceedings. See also Bireline v. Seagondollar, 567 F.2d 260 (4th Cir.1977) (plaintiff unsuccessfully appealed from lower court’s allowing the defendant to amend to aver the statute of limitations in 42 U.S.C. § 1983 civil rights action, resulting in summary judgment for the defendant); and American Air Filter, Inc. v. Industrial Decking and Roofing Corp., 82 F.R.D. 681 (E.D.Tenn.1979) (defendant allowed to amend to plead statute of limitations although defendant had failed to raise this defense in the first answer and the first amendment to the answer).

Turning to the instant case, we take note that the lower court’s denial of Allstate’s motion to amend discusses only the first of four proposed amendments (the retroactivity of Heffner) and gives no reason at all for denying the motion to amend in order to aver the statute of limitations. Applying the rationale of Foman v. Davis, this would constitute sufficient reason to find abuse of discretion in the denial by the lower court. We also find Allstate’s motion was timely filed. Taking timeliness, absence of prejudice, and absence of explanatory reasons by the lower court into consideration, we conclude that the denial of the motion was improper.

We here decide only the question of whether Allstate should be allowed to amend its answer and new matter and we hold that it should be állowed to amend as to the statute of limitations in order to plead this affirmative defense. We therefore do not reach the several substantive objections that the Tanners raise to the statute of limitations defense. The issue is not the validity of the statute of limitations as an affirmative defense, but whether Allstate should be allowed to plead it. See John McShain Inc. v. Cessna Aircraft Company, 243 Pa.Super. 220, 364 A.2d 951 (1976) (error to refuse to allow amendment to plead collateral estoppel when the other action had not yet resulted in a final judgment).

Finally, we address the proposed amendment denying liability for attorneys’ fees, for which the Tanners make a claim in their complaint. 40 Pa.S. § 1009.107(3) provides:

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

Baker held that where the liability of insurance companies has been determined by an appellate court’s construction of the No-Fault Act, and the insurance company subsequently denies liability, the claimant shall be awarded reasonable fees as provided by § 1009.107. The Baker Court found lack of reasonable foundation for the denial of the claim, and consequently liability for attorneys’ fees, from the date of the Supreme Court decision in Heffner, i.e. September 22, 1980. If, therefore, Allstate’s statute of limitations defense is found invalid, Allstate will incur liability for attorneys’ fees on the basis of the Baker holding, and an amendment to deny liability would be a futile exercise. If, on the other hand, the statute of limitations defense is found meritorious, the Tanners will have no claim against Allstate, and the defense against award of attorneys’ fees becomes irrelevant.

Accordingly, the order of the lower court denying Allstate’s motion with prejudice is modified in order to allow Allstate to plead the defense of the statute of limitations. The case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . In denying the motion, the lower court explained that the question of the retroactivity of Heffner had already been decided in Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 423 A.2d 1284 (1980). Daniels held that Heffner did not create a new right to work loss benefits, but settled an issue of statutory construction so as to clarify a right that existed all along. In this the lower court was correct. However, the lower court did not address the second and fourth of the above listed proposed amendments, and it erred in stating that Allstate had withdrawn its proposed motion to deny liability for attorney fees. In fact, Allstate withdrew only that portion of the proposed amendment relating to interest on the claim. See lower court opinion at 1-2; reply memorandum in support of motion to amend answer and new matter, R. 114a (footnote); appellant’s brief at 7 (note 5). Allstate withdrew the denial of liability for eighteen percent interest on the claim following Hayes v. Erie Insur

        ance Exchange, 493 Pa. 150, 425 A.2d 419 (1981) which held that interest was owed regardless of the good faith of the insurer or the reasonableness of the delay.

      . The other Heffner progeny, decided at the same time as Baker and relating to retroactivity and attorney fees are: Shomper v. Aetna Life & Casualty Company, 309 Pa.Super. 97, 454 A.2d 1101 (1982); Keaten v. Aetna Life & Casualty Insurance Company, 309 Pa.Super. 101, 454 A.2d 1102 (1982); Thomas v. Aetna Casualty & Surety Company, 309 Pa.Super. 105, 454 A.2d 1105 (1982); Freeman v. Allstate Insurance Company, 309 Pa.Super. 108, 454 A.2d 1106 (1982); Giles v. Allstate Insurance Company, 309 Pa.Super. 111, 454 A.2d 1108 (1982); Rittner v. Aetna Life & Casualty Insurance Company, 309 Pa.Super. 114, 454 A.2d 1109 (1982).

      . Chesler was decided by a 6-1 vote. J. Hester dissented on the grounds that the suit was instituted by the estate of the deceased, not on the issue of whether a parent must prove economic dependency.


author: CIRILLO, Judge:

text:
    467 A.2d 1170
    Irene McPHERSON, Administratrix of the Estate of Thomas E. McPherson, Deceased, on behalf of the next of kin of Thomas E. McPherson, Deceased, and Irene McPherson, Administratrix of the Estate of Thomas E. McPherson, Deceased, v. TUBE CITY TAXICAB COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Nov. 18, 1983.

      Cathie J. Fagan, Pittsburgh, for appellant.
    Anton W. Bigman, Pittsburgh, for appellees.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

The appellant contends that the lower court erred in refusing to open a default judgment. We disagree and thus affirm the trial court.

This action was commenced on November 18, 1977 against the appellant in assumpsit and trespass for the wrongful death of Thomas E. McPherson. A complaint was filed on January 17, 1978. On February 21, 1978 counsel for appellant, James David Elder, requested and was granted by the appellees, additional time to file a responsive pleading. Counsel for the appellees, Anton Bigman, alleges that he subsequently made a number of telephone calls to attorney Elder for the purpose of having him file an answer so that the case could proceed. In any event, the case was placed at Issue and received Issue Docket No. 104558. On May 8, 1980 this case appeared in the Legal Journal on the trial list for October 2, 1980. The required ten-day notice pursuant to Pa.R.C.P. 237.1 was then forwarded to the appellant and attorney Elder on May 8th since no answer or other responsive pleading had been filed. On May 29, 1980, a default judgment was entered. Thereafter, the appellant filed a petition for a rule to show cause why the default judgment should not be opened. The Rule was issued on July 14, 1980. By Order of the Honorable Frederick Weir, dated September 17, 1981, this Rule was discharged and the default judgment was upheld. This appeal followed.

It is axiomatic that in order to open a default judgment, the moving party must be able to demonstrate: (1) the petition to open was promptly filed; (2) the existence of a meritorious defense to the underlying claim; and (3) an excusable reason for the failure to act on the original complaint. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Academy House Council v. Phillips, 312 Pa.Super. 364, 458 A.2d 1002 (1983); Jenkins v. Blanchfield, 297 Pa.Super. 95, 443 A.2d 316 (1982). The existence of these factors depends on equitable considerations, including a weighing of the prejudices to each party arising from opening, or refusing to open, judgment. Hardware Wholesalers, Inc. v. Swope, 309 Pa.Super. 321, 455 A.2d 180 (1983); Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976). See also: Roberts v. Roberts, 298 Pa.Super. 307, 444 A.2d 1188 (1982).

The appellant avers that the failure to file a responsive pleading was reasonably explained. There is no question that appellees initially provided appellant and attorney Elder with written notice as prescribed by Rule 237.1. However, appellant contends that the representations and conduct of appellees’ counsel after receipt of notice by the appellant abbrogated the effect of the notice.

On May 14, 1980, after Notice of Intent to Take Default Judgment was received, attorney Elder contacted attorney Bigman. According to the deposition testimony of both attorneys, their conversation concerned the question of ownership of the cab driven by the decedent and how this issue would affect the answer to be filed by the appellant. The discussion apparently ended without resolution of this question. Attorney Bigman testified that he felt an answer would be filed shortly. Attorney Elder, on the other hand, testified that he assumed nothing would be done due to the fact that he was going to file an answer. There is no indication in the record though, that attorney Elder specifically requested an extension of time within which to file an answer, nor that the appellees ever granted such an extension following the Rule 237.1 notice, nor for that matter, that such an extension was even discussed. Likewise, there is nothing in the record evincing that the parties executed a written agreement for extension of time as contemplated by Pa.R.C.P. 237.1(a).

A petition to open a default judgment is addressed to a court’s equitable powers and is a matter for judicial discretion. The Superior Court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear, manifest abuse of discretion is shown. N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A.2d 1377 (1983); Lalumera v. Nazareth Hospital, 310 Pa.Super. 401, 456 A.2d 996 (1983); Reyer v. Guinta, 292 Pa.Super. 182, 436 A.2d 1212 (1981). The appellant’s attorney argues that he thought he had an extension of time to file a responsive pleading. However, we can glean nothing from the record that would form a reasonable basis for any misunderstanding on the part of attorney Elder regarding the time when the answer was due.

It has been often stated that “snap judgments” taken without notice are strongly disfavored by the courts. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); N.H. Weidner, Inc. v. Berman, supra; Beausang v. Bernotas, 296 Pa.Super. 335, 442 A.2d 796 (1982). Yet, this is not an instance of a snap judgment being taken. The default judgment was taken some 28 months after the filing of the complaint and 20 days after giving the required ten-day notice. The appellant failed to use diligence in obtaining the information necessary to file an answer despite the generous allotment of time in which to do so. We cannot say, therefore, that the lower court committed an error of law or an abuse of discretion in failing to open the default judgment entered in this case. Accordingly, we affirm the Order of the court below denying the appellant’s petition.

Order affirmed.

      . Counsel asked for this additional time to file an Answer so that he could investigate whether the appellant, Tube City Taxicab Company, or G.I. Cab Company was the employer of the decedent.

      . Rule 237.1. Notice of Praecipe for Entry of Default Judgment
      (a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
      Pa.R.C.P. 237.1(a).


author: PER CURIAM:

text:
    467 A.2d 1173
    COMMONWEALTH of Pennsylvania v. Demetrio REYES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1983.
    Filed Nov. 18, 1983.

      William P. James, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Following a non-jury trial, appellant was convicted of third-degree murder and possessing an instrument of crime in connection with the stabbing death of his girlfriend. Appellant’s post-trial motions were denied and he was sentenced to two consecutive terms of imprisonment totalling I2V2 to 25 years. This direct appeal was filed by trial counsel.

Subsequent to filing the appeal, trial counsel petitioned this Court for permission to withdraw as appellant’s counsel. The petition was granted and new counsel was appointed. The sole issue presented by appellate counsel is the effectiveness of trial counsel. It is argued that trial counsel was ineffective for failing to question the competency of appellant to stand trial and to waive his right to a jury trial. It is also argued that trial counsel was ineffective for failing to challenge the competency of appellant to waive his constitutional rights and make an uncounseled statement to the police several hours after the stabbing incident. In addition, it is argued that counsel was ineffective for failing to “present relevant and available psychiatric evidence to negate malice” at appellant’s trial. Finally, it is argued that trial counsel was ineffective for failing to challenge the competency of the decedent’s 11-year-old son who was called by the Commonwealth as an eyewitness to the stabbing.

Although being raised for the first time on appeal, the issue of trial counsel’s effectiveness is properly before us for review since this is the first occasion on which appellant is represented by counsel other than trial counsel. Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983). The difficulty, of course, at this stage of the proceeding is that we have no record on which the claims asserted can be evaluated. This is one of those cases where it is impossible to tell from the record before us whether the claims have arguable merit and/or whether trial counsel had a reasonable basis for the course of conduct taken.

The Commonwealth argues that trial counsel’s conduct was the result of trial strategy. The difficulty is that we cannot tell from this record whether trial counsel even considered raising the issue of appellant’s mental competence to waive his rights or to stand trial, let alone that he made a strategic decision to forego those issues. The same may be said of the claim that an available defense based on appellant’s mental condition at the time of the stabbing was foregone. Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1977). Therefore, it is necessary to vacate the judgments of sentence and remand this case for an evidentiary hearing on the ineffectiveness claims raised by appellant. Commonwealth v. Corish, 296 Pa.Super. 92, 442 A.2d 311 (1982).

Judgment of sentence vacated and case remanded for an evidentiary hearing. If the trial court finds that counsel was ineffective, then it should grant appropriate relief. If appellant is unable to sustain his contention that counsel was ineffective, then the judgment of sentence should be reimposed.

Jurisdiction relinquished.


text:
    467 A.2d 1174
    COMMONWEALTH of Pennsylvania v. Michael WALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed Nov. 18, 1983.

      Eric L. Lilian, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

After a non-jury trial, appellant Michael Walls was found guilty of aggravated assault, possession of an instrument of crime, violation of the Uniform Firearms Act, recklessly endangering another person, theft and unauthorized use of an automobile. His post-verdict motions were denied.

On December 21, 1981, appellant was sentenced. At some unspecified time, appellant filed a motion tó modify his sentence. On January 4, 1982, the lower court vacated the judgment of sentence pending its consideration of the motion. Appellant filed a notice of appeal from the original judgment of sentence on January 20, 1982. One day later, on January 21, 1982, the lower court granted appellant’s motion and modified the original judgment of sentence; thereby vacating the judgment of sentence now on appeal.

The judgment now on appeal having been vacated is a nullity. This appeal is therefore quashed without prejudice to appellant’s right to file an appeal nunc pro tunc from the judgment of sentence of January 21, 1982.

      . Because the record does not indicate when the motion was filed and the lower court heard it, we will assume that it was filed within ten days after imposition of sentence. Pa.R.Crim.P. 1410. See Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981) (the purpose of Rule 1410 is to permit the sentencing court the first opportunity to modify its sentence).


author: JOHNSON, Judge:

text:
    467 A.2d 1175
    In re ESTATE OF Helen BROJACK, Deceased. Appeal of William BROJACK and Peter Brojack, Jr., Heirs.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Decided Sept. 23, 1983.
    Reargument Denied Dec. 5, 1983.
    Petition for Allowance of Appeal Denied June 27, 1984.

      David L. Kurtz, Moscow, for appellants.
    Patrick John Mellody, Scranton, for Brojack, participating party.
    P. Timothy Kell, Scranton, for Warnetsky, et al., participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from an order dismissing appellant-William Brojack’s objections to the first and final account of the estate of Helen Brojack, deceased (hereinafter referred to as the decedent). The decedent was the mother of William Brojack (Bill), Peter Brojack, Jr. (Peter), Martha Warnetsky (Martha), Eleanor Hilavaty (Eleanor) and Paul Brojack (Paul). The five individuals named above are the sole beneficiaries under the will of the decedent; each was to receive an equal share. Paul was named as executor.

The decedent died on November 27, 1978. Family meetings were held on January 31, 1979 and March 16, 1979. Various estate assets were sold to the various beneficiaries and releases were executed as to most of such assets. Bill was deeded the family homestead (known as the farm) after the second meeting. Before the second meeting he had received title to a car which had been owned by American Silt Processing Co., a corporation owned by decedent. No release was signed as to the car. Peter purchased an antique Cadillac from his mother’s estate after the second meeting. Martha was to purchase two lots from the estate for her daughter; the record does not indicate whether this transaction was completed. The heirs agreed at the first meeting to reimburse Bill for his share of the proceeds of a sale of property, known as the Keyser Avenue, property, which had been transferred to nonrelatives nine years earlier. Bill had allowed his father, Peter, Sr., decedent’s husband (who had predeceased decedent), to retain such monies for his own use. Bill was paid by means of two checks, both dated before, though not processed until after, the second meeting. Subsequent to the second meeting, the executor entered into an agreement of sale with Martha for the transfer of American Silt. This sale has not been consumated due to the dispute which is the center of this appeal.

Appellants, Bill and Peter, complained that the sale price for American Silt is inadequate. The executor argues that the sale of the company was part of an oral family settlement agreement, binding on all the heirs. Appellees, Martha and Eleanor, likewise contend that a valid family agreement exists and that it should be enforced. The Orphans’ Court found that a comprehensive family agreement exists which included the sale of American Silt to Martha. The chancellor dismissed the objection to such sale and hence this appeal.

“[I]n reviewing the decision of the orphans’ court, our task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.” Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971); Garges Estate, 474 Pa. 237, 378 A.2d 307 (1977); Holtz Will, 422 Pa. 540, 222 A.2d 885 (1966); Hunter Will, 416 Pa. 127, 205 A.2d 97 (1964).

In Re Estate of McCrea, 475 Pa. 383, 386-87, 380 A.2d 773, 775 (1977) (brackets in original); quoted in In Re Estate of Damario, 488 Pa. 434, 437, 412 A.2d 842, 844 (1980). While our review of the Orphans’ Court findings of fact is limited to considering whether they are supported by the record, we are not so restricted in reviewing the legal conclusions derived from the facts. In Re Ischy Trust, Etc., 490 Pa. 71, 415 A.2d 37 (1980). A finding of consent to or affirmance of a family agreement is a mixed question of fact and law which must be reviewed in light of the particular circumstances of the particular case. See Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1962).

In the current case the chancellor made the following findings. The decedent’s five children were represented at the two family meetings; due to health reasons Peter was represented by his wife, Helen (not to be confused with decedent), and a son at both meetings. At the first meeting the executor provided a full and substantial disclosure of the estate assets, including documents pertaining to American Silt. Appraisals and alternate values were provided; Peter’s wife, Helen, delivered such papers to him after the first meeting. After discussion at the first meeting, agreement was reached regarding the sale of various assets to the various beneficiaries, including American Silt to Martha. Agreement was also reached as to the payment to Bill of his claim for a share of the sale proceeds of the Keyser Avenue property. Pursuant to such oral agreement, various assets were transferred.

At the meeting of March 16, 1979, the attorney for the estate was present and had documents for the transfer of American Silt. However, at the executor’s request, the papers were not signed at that time so that changes could be made in the allocation of the purchase price. No objection was raised, at either meeting, to the sale of American Silt. The court found that it was not until June 1979 that Bill offered a higher price for American Silt, after he had already received and accepted benefits of the family agreement.

Family settlement agreements are favored in this Commonwealth because they are an attempt to avoid potentially divisive litigation. The existence of such agreement must be shown by clear and unambiguous evidence; the agreement must be binding on all parties. In Re Estate of McCrea, supra; In Re Estate of Stancik, 451 Pa. 20, 301 A.2d 612 (1973); In Re Estate of Sumney, 425 Pa. 224, 228 A.2d 915 (1967). However, where a fair and valid agreement is present it will be upheld whenever possible; in the absence of fraud the agreement is binding even though based on an error of law. Id. In this current appeal, after having reviewed the almost 700 pages of testimony, and numerous exhibits, we find that the record supports the chancellor’s conclusion that an integrated agreement existed, which included the sale of American Silt. We set forth only a brief summary of the pertinent testimony.

Paul testified that he handed out at the first meeting various documents to all present; included were various financial statements regarding American Silt and appraisals of the assets of the estate. The balance sheet of American Silt showed a $94,000.00 debt owed to the decedent. Martha stated she would pay book value for the company. No one objected to the sale. Bill thought the price was too high. Helen Brojack, Peter’s wife, did not tell anyone that she had no authority to act for her husband. At the second meeting when the execution of the sale agreement for the sale of American Silt was postponed, all present were asked if they had any objections to any of the sales. No objections were expressed. Paul thought that a firm family agreement existed.

Paul further explained that an 8 acre tract had been omitted from the American Silt documents and the inventory because the realtor believed the pareel was of no value, except to American Silt. He did not realize the omission of the parcel from all the documents until after the second family meeting when Bill brought the subject up after the agreement had been executed by Paul. At that time he (Bill) suggested the tract be valued at $1,000. Paul further testified that he had explained at the family meetings that the $94,000 debt owed to the decedent was to be forgiven. No one objected. The sales agreement was signed sometime after the second family meeting. No objections were voiced to the executor until July, 1979.

Martha testified that Bill told her at the first meeting that the sale price for the business was too high. She responded that she was willing to pay the book value. No one else expressed any interest in the company. At the second meeting everyone was ready to sign the agreement although Paul desired changes. There were no objections to the sale at this time. The $94,000 was discussed. Martha subsequently signed the agreement and arranged for financing. She testified that all agreed to pay Bill for the sale of the Keyser property to avoid any dispute even though it was questionable that the estate was liable for it. She believed that a family agreement had been reached.

Eleanor testified that everyone at the first meeting was provided with copies of the various documents. Paul reviewed everything. Bill thought the price listed for American Silt was too high, but Martha was willing to pay it. At the second meeting no one else expressed any interest in the company and she thought everything was resolved. Everyone, including Bill, had a chance to look at the agreement and everyone was ready to sign it. Peter’s wife never stated that she would have to discuss matters with her husband. Eleanor understood that selling the farm and the company to members of the family would result in less money for the estate, but for the sake of family harmony she agreed and thought everyone else had also.

Helen Brojack, Peter’s wife, stated that she informed those at the meeting that she would have to consult with Peter, before she could agree to anything. She claimed that she did not receive all the appraisals. Her son, after the first meeting, told Paul that the sale price for the farm was too low. Her husband, Peter, called Paul the day after the first meeting to oppose the sale of American Silt and to offer to buy it himself. At the second meeting no objections were raised to the sale of American Silt. Helen did not see the sales agreement at the second meeting and there was no discussion of the sale at that time. She did not realize that the sale of the farm was contingent upon the sale of the company to Martha.

Peter admitted that he did not object to the sale of American Silt until after July 11, 1979. He claimed that he called Paul the day following the first meeting, offered $65,000 for American Silt and was told that there were too many liens against the business but was not told that he could not buy it. He contended that the sale price was inadequate as the machinery was worth more; yet, he had not been on the business premises for over twenty years. Peter was on good terms with Bill but not with his other siblings.

Bill’s testimony consisted of the following. He was unaware of the $94,000 debt of American Silt owed to the decedent. He stated that he had not received the balance sheet for the corporation; though, subsequently he admitted he may have, but he was concentrating on the farm at the first meeting. He claimed that he had not received all the appraisals, but he was aware of the three sets of appraisals. He contended that no agreement could be reached at the first meeting because Helen stated she had to consult with Peter. He stated that he had not agreed at the first meeting to the sale of the lots to Martha’s daughter. He claimed that Paul stated that any reduction to the estate due to family agreements (farm, and $16,000 Keyser Avenue claim) would require a proportional increase in the price of American Silt.

At the second meeting he was aware that an agreement was to be signed, but was unaware of what the agreement was for. He did not inquire; there was no discussion of American Silt.

On June 14, 1979, Bill, through his attorney, and without clearly identifying himself as the interested party, offered $100,000 for the company. He did not receive a response but was later told that there was a preexisting sales agreement. Bill testified that he had asked Paul a lot of questions about American Silt, that he knew the inventory was worth more; that he knew the company and knew the figures of the company. Yet he admitted that he did not know who was running the company and had not done any hauling for or business with the company for a couple of years. Nor had he reviewed the company books until after this controversy arose. At one point he claimed he performed his own inventory of the company between the first and second family meetings; at another time he claimed it was conducted after the second meeting. He discussed it with Paul thereafter. While he did not object at the second meeting because of the omitted 8 acres, he did object before closing on the farm, but after everyone had signed the release.

We find that competent and adequate evidence was presented to the Orphans’ Court. Without reciting all the testimony reviewed above, the record demonstrates that adequate disclosure was made; the various transactions were discussed and no one timely objected to the American Silt transaction.

Our holding here is in agreement with that of the Supreme Court’s in In Re Hammer’s Estate, 389 Pa. 78, 132 A.2d 275 (1957). In Hammer, as in the current case, only part of the total agreement was reduced to writing. Nonetheless the whole agreement was enforceable. Even an agreement that is entirely oral, if properly proven, is valid. Holland v. Hand, 317 Pa. 70, 176 A. 430 (1935). While any disagreement could have been avoided by a comprehensive writing instead of the asset by asset method employed here, an oral agreement will be upheld when clearly established. While even a brief review of the record clearly demonstrates that the parties’ recollections of events are irreconcilable, it was within the province of the chancellor to weigh and assess the veracity of the testimony as he had the opportunity to hear and observe the demeanor of the witnesses. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976); Sorokin v. Krasner, 289 Pa.Super. 324, 433 A.2d 88 (1981). In light of the inconsistencies, changes of testimony, uncertainties and lapses of memory appearing in the testimony of the exceptants’ witnesses, we find that the Orphans’ Court’s findings are “not predicated upon capricious disbelief of competent and credible evidence.” In Re Estate of Cohen, supra.

The chancellor found the proponents of the agreement to be worthy of belief, in particular the testimony of Eleanor. She testified that even though the sale of the farm and American Silt would result in less money for the estate then a public sale would produce, she agreed to such in the interest of family harmony. Her understanding was that everybody concurred in the sales. As Eleanor did not wish to purchase any estate assets, and she realized such sales would reduce her share, she not only testified against her pecuniary interest but agreed to sales against her pecuniary interest. Such testimony may be given additional weight. Hammer’s Estate, supra.

Furthermore, a family settlement may arise by presumption from the parties’ conduct, or failure to act. In Re Edelman’s Estate, 336 Pa. 4, 6 A.2d 511 (1939). Here no objections were voiced to the anticipated sale of the business, even when the sales agreement was to be signed. In light of the fact that other assets had been sold and Bill’s Keyser Avenue claim satisfied, it was reasonable to presume assent. In such a situation, equity will not permit a beneficiary of an agreement, who has already received the benefits of the agreement, to object to the remaining executory provisions of the agreement. Bill and Peter having benefited from the respective sales will not now be heard to complain. Zampetti v. Cavanaugh, supra. In Re Brereton’s Estate, 388 Pa. 206, 130 A.2d 453 (1957); Patterson v. Dushane, 137 Pa. 23, 20 A. 538 (1890).

Appellants argue that a family agreement is not effective unless consented to and binding on all concerned. Estate of Allen, 488 Pa. 415, 412 A.2d 833 (1980); In Re Little’s Estate, 403 Pa. 534, 170 A.2d 106 (1961). However, they misconstrue the chancellor’s findings. The Orphans’ Court did not hold that Bill’s and/or Peter’s consent was unnecessary, but instead found that they had consented. Unlike the situation in Allen, where the record was void of any such consent of some of the beneficiaries, here the record supports the finding of consent. While Peter was not present at either of the family meetings, he was represented by his wife and a son. His wife admitted that she informed him of the content of the first meeting at which the sale of American Silt was proposed. Peter admitted .that he did not direct his wife to voice his objections. Bill was present at both meetings at which the sale was discussed, but voiced no objections. In light of the above discussion and the particular facts of this case we find the chancellor could properly find consent by all parties.

Appellants further argue that the Statute of Frauds, 33 P.S. § 1, prohibits this court from enforcing the alleged family agreement. They contend that for a family agreement concerning real property to be binding it must be in writing. The executor contends that appellants’ acquiescence estops them from now raising such claim after they received the benefits thereof. He also contends that under the Pennsylvania Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 3351, the executor does not need the signature of all heirs to transfer realty. Appellees Martha and Eleanor further contend that the statute of frauds was not specifically pleaded below and therefore was waived.

The Statute of Frauds must be raised in a responsive pleading. Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). In the current case the claim was not specifically raised in the objections to the account, however it was raised at some point before the court and was addressed by the court. Due to the multiplicity of motions and petitions, all of which are not before this court for review, we will assume this claim was preserved.

However, we find it unnecessary to determine in this appeal whether the Statute of Frauds may prevent the enforcement of an oral family agreement concerning the sale of realty to an heir, as equity demands the agreement be enforced. Specific evidence that would make recission of an oral contract inequitable and unjust will take such contract outside of the Statute of Frauds; partial performance, which has benefited the party invoking the statute, will in appropriate circumstances, bar the invocation of the rule. Eastgate Ent., Inc. v. Bank & Trust Co. of Old York Rd., 236 Pa.Super. 503, 506, 345 A.2d 279, 280-81 (1975); Lehner v. Montgomery, 180 Pa.Super. 493, 496-97, 119 A.2d 626, 628 (1956). Having found above that a fair agreement existed and both appellants have benefited from the favorable provision of such agreement, equity required that they abide by the remaining provisions of it. Therefore the Statute of Frauds will not be applied to the facts of this case.

Appellants’ final claim is that the alleged agreement should be invalidated because of the executor’s conflict of interest and failure to make full disclosure. While appellants’ allegation of conflict of interest would be more appropriate in considering the removal of the executor, we will address it briefly.

Appellants contend that as accountant for American Silt and its sole surviving stockholder, Paul breached his duty to provide full disclosure. First, we must note that Paul was placed in the alleged conflict of interest by the decedent; she appointed him accountant for the company and named him executor. Therefore, the appellants’ implication of self-dealing does not control the resolution of this appeal. See, In Re Steele’s Estate, 377 Pa. 250, 103 A.2d 409 (1954); In Re Flagg’s Estate, 365 Pa. 82, 73 A.2d 411 (1950). The agreement may not be set aside absent fraud. Estate of Sumney, supra; Hammer’s Estate, supra; Fry v. Stetson, 370 Pa. 132, 87 A.2d 305 (1952).

All of appellants’ claims of nondisclosure simply are not supported by the record or do not amount to fraud. They contend that the executor failed to obtain an independent valuation of the business and instead relied on the book value. Such was obvious from the documents distributed and the discussions that ensued. Many of the documents dealing with American Silt indicate that they were unaudited and for internal use of the corporate entity. Additionally, there was a disclaimer indicating that the accounting firm may not be completely unbiased. Accepting the executor’s testimony, as apparently the court below did, an independent audit was not performed because the family members thought it was unnecessary and would be expensive. Had appellants been dissatisfied with this family consensus, they nonetheless remained silent, nor did they obtain their own appraisal.

Omission of the eight-acre tract was raised after the second family meeting and explained. An independent realtor found it to be of little if any value except when transferred with American Silt. Appellant, William Brojack, himself, placed a value of $1,000 on it. As both appellants claim to have been familiar with the company, at least in the past, we find no fraud in this failure to include a portion of the real estate.

The $94,000 debt was listed and discussed extensively. It was agreed that it would be forgiven so that the company could be sold.

One item neither listed nor explained prior to this dispute was a $2,000 security deposit held by a utility company in the name of American Silt’s predecessor. Paul testified he was unaware of such at the time of the family meetings. Due to its relatively small value and the explanation for its nondisclosure, such omission does not amount to fraud.

A final item which appellant makes reference to is the executor’s request to sell an asset of the business. We extract from the record that, sometime after the family meetings, a market developed or, became known, for a previously valueless substance located on the company’s premises. The potential value of such substance greatly exceeded the price due to be paid by Martha. As there is no evidence that the executor was aware of such value at the time the agreement was entered, hindsight will neither allow us to impose a duty to disclose what one is unaware of, nor allow us to find fraud in concealing what one does not know.

Order affirmed.

POPOVICH, J., concurs in the result.

      . Peter Brojack, Jr. did not join in the filing of the objections, but did join in the objections when the estate was called for an audit of the first and final account. Hereafter Bill and Peter will be referred to as appellants.

      . Decedent owned 100 of the 101 shares issued by the corporation. Paul owned the remaining share.

      . Numerous other objections were also raised, and various petitions and motions were filed. Eleanor also filed objections as to the sale of the farm. The lower court limited its ruling to whether an agreement existed among the heirs as such would be determinative of many of the complained of matters.

      . This debt represented loans made to the corporation by decedent and her husband (who had predeceased her) and rent for the realty owned by decedent upon which the corporation did business.

      . The unaudited balance sheet showed assets of $70,575 and liabilities (in addition to the note owed to decedent) of $23,375, for a book value of approximately $47,000. When the real estate was added thereto, the book value became approximately $62,000, Martha’s offer.

      . The executor signed the agreement sometime in May of 1979. Martha was not sure when she signed it. The Agreement was dated July 11, 1979. Apparently, the agreement was delayed by Martha’s attorney. While appellants place a great deal of emphasis on the date of the written agreement, we find it unnecessary to determine the exact date, as we find a family agreement existed.

      . The Supreme Court, by per curiam order, affirmed on the opinion of the Orphans’ Court. Our discussion above refers to the Orphans’ Court opinion which was reprinted at the above citation.

      . The claim was raised in appellants’ brief filed in opposition to the executor’s request to sell American Silt.

      . Hill v. Houpt, 292 Pa. 339, 141 A. 159 (1928), relied on by appellants held that the oral provisions of a family agreement were void as to realty.

      . A petition to remove and surcharge the executor was filed in the Orphans’ Court; such is not before this court.

      . See footnote 2; supra.

      . Paul also acted prior to the estate dispute as accountant for Bill’s business.

      . Bill had obtained his own appraisal of the farm.