author: HUDOCK, Judge:

text:
    601 A.2d 330
    Samuel L. EVANS, Individually and as President and National Chairman of AFNA National Education and Research Fund and the AFNA National Education and Research Fund, Appellants, v. PHILADELPHIA NEWSPAPERS, INC. a/k/a Philadelphia Daily News and Toni Locy and Jay Harris and Zachary Stalberg and Tyree Johnson, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed Dec. 31, 1991.

      Roland J. Atkins, Philadelphia, for appellants.
    H. Geoffrey Moulton, Jr., Philadelphia, for appellees.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

Samuel Evans and the AFNA National Education and Research Fund, (Appellants), appeal from the order granting summary judgment in favor of Appellees. We affirm.

The facts of the case can be summarized as follows: On October 2, 1987, Appellants commenced suit against Appel-lees claiming tortious interference with a contract, defamation, and conspiracy. Specifically, it was alleged in Appellants’ second amended complaint that the Appellees conspired to discredit and destroy Appellants. Appellants alleged that Philadelphia Newspaper Inc., and, in particular, the Philadelphia Daily News, (Daily News), set upon a campaign of unfair and prejudicial news reporting of the African-American community, both in Philadelphia and world-wide, in order to maintain “the status quo” with respect to minority achievements and advancement. In furtherance of this campaign, Appellants alleged the Daily News sought out and hired as a reporter Appellee Johnson, who had allegedly lost his job at Channel 3 in Philadelphia after Appellant Evans and others complained of prejudicial and unfair reporting practices of the KYW TV I-Team of which Appellee Johnson was a member.

On September 23, 1986, the Daily News published an article entitled “Records of AFNA Youth Training Contract Subpoenaed” which included a photograph of Appellant Evans. The article was authored by Appellee Locy, a Daily News staff writer. The article reported that a federal grand jury had subpoenaed records from the non-profit Private Industry Council regarding a contract it had with “a youth training program headed by civic leader Samuel Evans.” (The article later identified the program as AFNA.) The article further stated that these records were removed by the FBI. Subsequently, it was discovered that the statements concerning a grand jury subpoena and the removal of the records were incorrect, and a “correction” to that effect was published by the Daily News on September 26, 1986, without request from Appellants.

Appellants alleged that the article was published either with knowledge or reckless disregard of the falsity and that the prejudicial effect was further aggravated when Appel-lee Johnson allegedly repeated the false statements orally to students, parents and sponsors of the program with the purpose of discouraging their future participation in AFNA. According to Appellants, the Appellees’ purpose was fulfilled and enrollment and funding of AFNA dropped, causing considerable financial burden to Appellants. (See Trial Court Opinion at .pp. 2-3.)

“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ... The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party_ The court’s responsibility is to determine whether a genuine issue of material fact exists; the court may not resolve such an issue. Moreover, the court should not enter summary judgment unless the case is free from doubt. [Citations omitted.]

Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 427, 456 A.2d 1009, 1011 (1983); Pa.R.C.P. 1035, 42 Pa.C.S. (Purdon 1987). Keeping in mind the above principles, we find this was a proper case for summary judgment.

On appeal, Appellants raise the following issues: 1) whether there exists material issues of fact with regard to the cause of action in tortious interference with contract; 2) whether there exists material issues of fact with regard to the cause of action in conspiracy; 3) whether there exists material issues of fact with regard to the cause of action in defamation; and 4) whether the statute of limitations for each cause of action should be applied to the respective cause of action.

Our resolution of the statute of limitations issue adversely to Appellants makes discussion of the other issues unnecessary.

Appellants claim that material issues of fact were present and that their action was not time barred, thus rendering a grant of summary judgment improper. Appellees had argued in their motion for summary judgment, and argue on appeal, that Appellants have not adequately pled their tor-tious interference claim. Furthermore, since the tortious interference claim was duplicative of the defamation claim, it was barred by the one year statute of limitations applicable to defamation claims. The trial court found that, while Appellants had adequately pled a tortious interference claim, the cause of action was nevertheless barred by the statute of limitations since the complaint refers specifically to only one allegedly defamatory statement (the Daily News article of September 23, 1986) and suit was not filed until October 2, 1987. We agree.

At issue is the proper statute of limitations to be applied to Appellants’ tortious interference with contract claim. Specifically, we are asked to decide whether a tortious interference claim, which is based upon identical allegations set forth in an accompanying defamation claim, should be considered duplicative and, as such, be barred by the one year statute of limitations applicable to defamation claims. This Court, in its research, has been unable to find any authority in this Commonwealth which addresses this precise issue.

Appellants rely on the case of Loughrey v. Landon, 381 F.Supp. 884, 886 (E.D.Pa.1974) for the proposition that the claims of defamation and tortious interference are separate claims, and, as such, have different applicable statutes of limitation. Specifically, Appellants contend that their claim for tortious interference is subject to a two year limitation period, rather than the one year applicable to defamation claims.

We agree with the court in Loughrey that the tort of contractual interference is recognized in Pennsylvania and that the action may be a separate and distinct action from that of libel or slander. In a situation such as this, however, where the underlying wrong which the complaint alleges is defamation by publication of a libelous report, and the claim of injury set out in each count springs from the act of publication, the Appellants should not be able to circumvent the statute of limitations by merely terming the claim tortious interference when in essence it is one of defamation, subject to a one year limitation of action. In such a situation, we will look to the gravamen of the action, not to the label applied to it by plaintiffs. Furthermore, we are not bound by the determination of the court in Lough-rey and we do not consider it well-founded on that issue.

Rather, we find the trial court’s thorough analysis and reasoning persuasive. Judge Hill, in his opinion, reasoned:

The basic difference between a cause of action for interference with a contractual relationship and a cause of action for defamation resulting in the loss of such a relationship is that the former action can be based on a variety of torts including defamation. Therefore, where the gravamen of an action for interference with a contractual relationship is based on the commission of a tort the statute of limitations for that tort must govern. Our legislature has given torts short or long statutes of limitations for certain policy reasons. In enacting a one year statute of limitation in 12 P.S. § 31, and then reenacting it in the Judicial Code in 1978, 42 Pa.C.S.A. § 5523(1), the legislature has clearly expressed a public policy that the statute of limitations for defamation should remain shorter than the limitation of action for other torts. While the legislature, in enacting the new Judicial Code, did change the statute of limitations for a number of other kinds of torts, it did not do so for defamation. It is therefore clear that a longstanding policy exists in Pennsylvania to allow defendants in defamation cases an opportunity to make a prompt investigation of claims made against them while the evidence is still fresh in the minds of prospective witnesses. This is especially necessary for cases involving slander because the actual content of the statements could quickly fade from the minds of witnesses. Even where the case involves libel, it is still necessary to investigate the circumstances surrounding the making of the statement and it is crucial that it is done promptly.
The reason behind the public policy requiring a one year statute of limitations for defamation exists whether the cause of action is for defamation or the gravamen of a cause of action for tortious interference with a contract relationship is defamation. Furthermore, in creating a cause of action for tortious interference with a contract, there is nothing to suggest that the courts intended that a claim which was basically one of defamation should be given a two year statute of limitations. (See Bender v. McIlhatten, 360 Pa.Super. 168, 520 A.2d 37 (1987), app. den. 515 Pa. 571, 527 A.2d 533, which applies 42 Pa.C.S.A. § 5524(7) two-year statute of limitations to a tortious interference claim). Accordingly, the one year statute of limitation for defamation cannot be circumvented by cloaking such a cause of action in other legal raiment. This view is shared by the Pennsylvania federal district courts and the Common Pleas Court for Adams County. See Lougherty [sic] v. Landon, 381 F.Supp. 884 (E.D.Pa.1974) [cited for a different proposition then the one refuted above]; Auld v. Mobay Chemical Company, 300 F.Supp. 138 (E.D. [W.D.] Pa.1969); Brownley v. Gettysburg College, 68 Pa.D. & C. 2d 288 (Adams County, 1973).

(Trial Court Opinion at pp. 12-14).

There is also persuasive authority elsewhere to support our decision. In Gulf Atlantic Life Insurance Company v. Hurlbut, 696 S.W.2d 83, 100 (Tex.Ct.App.1985), revers’d on other grounds, 749 S.W.2d 762, 766 (1987), the one year statute of limitations applicable to defamation claims barred recovery where plaintiffs’ claim of tortious interference was based on the same allegedly false and disparaging statements outlined in the defamation claim, and the damages sought resulted from injury to plaintiffs’ reputation. The court reasoned that, without such a rule, any plaintiff having a claim for defamation concerning his business practices would be able to avoid the one year statute of limitations by simply designating the defamatory statement either disparagement or tortious interference, which have longer limitation periods. See also, Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (1975), cert. denied, 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976) (while wrongful interference with a business relationship is a general property tort which falls within the six year statute of limitations, where the means of interference alleged is defamation the shorter defamation period must apply); Moore & Associates v. Metropolitan Life Insurance Company, 604 S.W.2d 487, 491 (Tex.Ct.App.1980) (where the plaintiffs’ claims for tortious interference with the doctor-patient relationship were based on the alleged false and defamatory character of the communication complained of, they were held to be indistinguishable from the claims for libel and, as such, were barred by the one year statute of limitations applicable to libel); Ramsay v. Mary Imogene Bassett Hospital, 495 N.Y.S.2d 282, 284, 113 A.D.2d 149 (1986), appeal dismissed 67 N.Y.2d 608, 502 N.Y.S.2d 1026, 494 N.E.2d 113 (where the real ground for complaint is defamation, plaintiff cannot evade the statute of limitations by calling the action a prima facie tort, interference with contract or interference with a prospective advantage); Dubourcq v. Brouwer, 124 N.Y.S.2d 61, 62 (Sup.Ct.1953), aff'd, 131 N.Y.S.2d 300 (1954) (“person possessing a cause of action in libel or slander may not avoid the statute of limitations applicable to such a cause of action by the devise of claiming that the cause of action is an action on the case to which a longer statute of limitations is applicable”); Lucci v. Engel, 73 N.Y.S.2d 78, 79 (Sup.Ct.1947) (the court refused to permit the plaintiff to escape the statute of limitations applicable to libel actions by simply terming his action one on the case instead of one for libel); Lashlee v. Sumner, 570 F.2d 107, 109 (6th Cir.1978) (shorter defamation statute of limitations applied to a tortious interference with contract claim because the underlying wrong which the complaint alleged was defamation by publication of a libelous report and the gist of the entire action was the libel).

We conclude that since Appellants’ claim for tortious interference is based upon the alleged false and defamatory character of the communication complained of, and it is indistinguishable from the claims of libel and slander, the same one year limitation period should apply to both.

The Order of the trial court granting summary judgment is affirmed.

      . Appellants, in their brief, quote the following passage from Loughrey v. Landon, supra, to support their contention:

      . Appellants rely on 42 Pa.C.S. § 5524(7) (Purdon Supp.1991) as the applicable section for this cause of action. Section 5524 provides, in relevant part: "The following actions and proceedings must be commenced within two years: ... (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.”


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    601 A.2d 335
    COMMONWEALTH of Pennsylvania v. Lewis BATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Jan. 6, 1992.

      Marueen T. Beirne, Athens, for appellant.
    Mark W. Smith, Towanda, for appellee.
    Before POPOVICH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant, Lewis Batterson, pled guilty to recklessly endangering another person. After appellant entered his plea, but prior to sentencing, he learned that the Commonwealth had requested application of the deadly weapon enhancement provision because a motor vehicle was involved in the incident underlying the charge. Appellant thereafter petitioned to withdraw his guilty plea. The trial court denied appellant’s request but deferred sentencing in order to give defense counsel time in which to prepare an appropriate argument. Appellant was subsequently sentenced to serve a term of incarceration of between one (1) and two (2) years. For the reasons that follow, we vacate the judgment of sentence and remand for further proceedings.

The final judgment of sentence was pronounced against appellant on January 22, 1991. On that date, prior counsel filed a post-sentence motion to withdraw appellant’s guilty plea. This motion was cast in the form of an appeal from the trial court’s earlier dismissal of the pre-sentence motion to withdraw the plea. The trial court treated this as a post-sentencing motion and denied relief. Prior counsel filed no other post-sentencing motions, and was granted leave to withdraw representation on February 11,1990. New counsel was appointed on February 14, 1990 to handle appellant’s direct appeal. Although no supplementary post-sentencing motions nunc pro tunc were presented to the lower court, a timely notice of appeal was lodged with this court.

Current counsel has raised the following claims on appellant’s behalf:

[1.] Whether the trial court erred when it included the deadly weapon enhancement in the sentence.
[2.] Whether the trial court erred in denying [appellant’s] presentence motion to withdraw guilty plea.
[3.] Whether [the] trial court erred in denying [appellant’s] postsentence motion to withdraw guilty plea.
[4.] Whether guilty plea counsel was ineffective in failing to be aware of and inform [appellant] of [the] deadly enhancement provision.
[5.] Whether guilty plea counsel was ineffective in failing to file [a] motion for reconsideration within 10 days of sentencing?
[6.] Whether guilty plea counsel was ineffective in failing [to] assert a manifest injustice to [appellant] in his post sentence motion to withdraw guilty plea.
[7.] Whether [prior] counsel was ineffective in advising appellant to enter a guilty plea.

We shall address these issues seriatim.

Appellant first argues that the trial court erred by including the deadly weapon enhancement in the sentence imposed. The Commonwealth has correctly characterized this as a challenge to the discretionary aspects of sentence. We agree with the Commonwealth’s contention that appellant has waived this claim for failure to comply with the applicable procedural requirements. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Additionally, this issue must also be deemed waived because it has been raised for the first time on appeal and was not preserved in the lower court via a motion to modify sentence. We will therefore not address appellant’s claim in this context.

Appellant’s second and third claims are that the lower court erred in denying both his pre- and post-sentencing motions to withdraw his guilty plea. However, our careful scrutiny of the record discloses no basis on which we can grant the requested relief. The lower court has set forth a correct rationale for refusing to permit appellant to withdraw his plea, and we affirm on that basis.

The remaining issues raised by appellant concern the allegedly ineffective representation provided by prior counsel. We note that the procedural posture of this case has deprived the lower court of any meaningful opportunity to address these allegations because they have been raised for the first time on direct appeal. We are also cognizant of the Commonwealth’s contention that appellant has waived these issues because they have not been properly preserved via post-verdict motions or by a motion to modify sentence. We agree with the Commonwealth that issues not raised in post-verdict motions will not ordinarily be considered on appeal. Commonwealth v. Monarch, 510 Pa. 138, 146, 507 A.2d 74, 78 (1986). However, where ineffectiveness of counsel is alleged, that claim must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant. Commonwealth v. O’Neil, 393 Pa.Super. 111, 114, 573 A.2d 1112, 1114 (1990). Appellant has in fact taken his first opportunity to raise his claims against prior counsel. Our law does not require more than this. See, e.g., Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984) (ineffectiveness claims which have been raised at the first available opportunity will not be deemed waived).

The validity of appellant’s allegation regarding prior counsel’s failure to file a motion for reconsideration of sentence is clear on the face of the existing record. In the interest of judicial economy, we will therefore consider the merits of this issue. See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991) (in the “interest of judicial economy,” Pennsylvania Supreme Court ruled upon ineffectiveness claim absent determination by lower courts because record was adequate to permit resolution of the issue). The applicable standard by which we evaluate ineffectiveness of counsel is as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him.

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989) (citations omitted).

The contention underlying appellant’s ineffectiveness claim is that prior counsel should have filed a motion for reconsideration of sentence because the sentencing court improperly applied the deadly weapon enhancement to appellant’s case. Further, appellant alleges that prior counsel could have had no reasonable basis for this failure which prejudiced appellant by subjecting him to a more severe sentence than the trial court would otherwise have imposed. Our review of the record and the law of this Commonwealth has convinced us that appellant’s arguments are correct.

The record shows that appellant pled guilty to recklessly endangering another person after having knowingly driven a motor vehicle backwards into his wife thereby knocking her to the ground. In sentencing appellant, the lower court reasoned that under such circumstances the motor vehicle constituted a “deadly weapon” within the meaning of 18 Pa.C.S.A. § 2301. The sentencing judge thereupon determined that appellant’s case called for the application of the deadly weapon enhancement provisions of the Sentencing Code. N.T. 1/22/91 at 14-17. See 204 Pa.Code § 303.4 (set forth at 42 Pa.C.S.A. § 9721). However, under Pennsylvania law, motor vehicles cannot be considered “weapons” for the purposes of the deadly weapons enhancement provision. Commonwealth v. Burns, 390 Pa.Super. 426, 430, 568 A.2d 974, 977, allocatur denied, 525 Pa. 616, 577 A.2d 888 (1990). Application of this provision of the Sentencing Code to appellant’s case was thus error on the part of the lower court.

We agree with appellant that prior counsel was ineffective for failing to file a motion to modify sentence alleging the foregoing error in conjunction with the post-sentencing motion actually filed. The record demonstrates that the sentencing court specifically applied the deadly weapon enhancement provisions of the sentencing code. N.T. 1/22/91 at 15. We find this to be a sufficient demonstration of the prejudice appellant suffered from counsel’s failure to call the sentencing error to the attention of the lower court in a timely fashion. Further, in light of the fact that prior counsel actually filed a post-trial motion concerning the lower court’s application of the deadly weapon enhancement, we conclude that he could have had no reasonable basis for failing to include a motion to modify sentence on that same theory. However, the record before us is less clearly dispositive regarding appellant’s other claims of ineffective representation. We therefore remand the case so that the lower court can conduct an appropriate investigation and resolve the additional allegations.

The judgment of sentence is vacated. The case is remanded for further proceedings consistent with this memorandum. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 2705.

      . One of the reasons prior counsel gave for requesting leave to withdraw was that he had provided ineffective representation and therefore could not properly handle any appeal.

      . Appellant pled guilty to recklessly endangering another person, a misdemeanor of the second degree. 18 Pa.C.S.A. § 2705. As such, he was liable to serve a maximum term of two (2) years imprisonment. The sentence imposed by the lower court does not exceed the statutory maximum and may not therefore be deemed an illegal sentence.


author: HOFFMAN, Judge:

text:
    601 A.2d 338
    CHRYSLER FIRST BUSINESS CREDIT CORP. v. James M. GOURNIAK, Andrea R. Gourniak and the United States of America. Appeal of: James M. GOURNIAK and Andrea R. Gourniak.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Jan. 6, 1992.

      Keith R. Pavlack, Philadelphia, for appellant.
    Samuel A. Scott, Macungie, for appellees.

      Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order striking appellants’, James and Andrea Goumiak’s, new matter and counterclaims in a mortgage foreclosure action. Appellants contend that the trial court erred in finding that their new matter and counterclaims were not part of or incident to the underlying mortgage and thus improperly pled under Rule 1148 of the Rules of Civil Procedure. For the following reasons, we affirm.

On August 20, 1990, Appellee, Chrysler First Business Credit Corporation (“Chrysler”), formerly BancAmerica Business Credit Corporation, filed a complaint in mortgage foreclosure against appellants, James and Andrea Goum-iak, in the Court of Common Pleas of Lehigh County. The complaint alleged that on April 25, 1983, Chrysler loaned appellants over $62,000.00 in order that they may purchase from Chrysler the property known as RD # 3, Slatington, PA 18080. As security, appellants made, executed and delivered two notes and two mortgages to Chrysler as mortgagee on the above-mentioned property. Pursuant to the notes and mortgages, interest was to accrue beginning on June 10, 1983, and the first payment was due on the same date. The complaint alleged that at various times, payments were less than the required amount or were not made at all.

In May of 1985, appellants filed a petition in bankruptcy under Chapter 7. As a result, an automatic stay was imposed on all legal proceedings. Chrysler filed a motion to lift the stay in preparation for mortgage foreclosure on the above premises. On October 4, 1985, Chrysler and appellants entered into a stipulation with the approval of the bankruptcy court to re-commence payments on the mortgage and to stave off a foreclosure action. However, Chrysler’s complaint alleged that after partial payment in June 10, 1988, no further payments were made by appellants. As a result, pursuant to the notes and mortgages, Chrysler sought payment of the balance owed, interest, attorney’s fees and other costs.

In response to Chrysler's complaint, appellants filed an answer on October 19,1990. In their answer, in the section entitled “New Matter,” appellants alleged that Chrysler’s, predecessor in interest, BancAmerica, contacted them for the purpose of hiring them to sand and refinish the floors of the farm house located at RD # 3, Slatington. Discussions and negotiations then ensued about appellants’ purchasing the premises from BancAmerica.

Appellants alleged that they and BancAmerica then entered into an agreement of sale whereby BancAmerica agreed to finance not only the purchase of the Slatington premises but also the rehabilitation and conversion of the premises into apartments and the relocation and operation of appellants’ sanding and refinishing business. Pursuant to this agreement, appellants made, executed and delivered two notes and two mortgages to BancAmerica, as mortgagee on the Slatington property. Appellants averred that Chrysler then succeeded to BancAmerica’s position, knowing of the sale terms and operating under them.

Furthermore, appellants alleged that these terms were also adopted as part of the stipulation entered into during bankruptcy proceedings. However, appellants averred that neither BancAmerica nor Chrysler provided them with the necessary financing to rehabilitate the premises or operate their business, and as a result, they suffered economic and financial hardships, ending in their bankruptcy. Moreover, appellants alleged that Chrysler waited to foreclose on the property until appellants had substantially rehabilitated the premises with their own funds.

Consequently, appellants asserted the affirmative defenses of fraudulent misrepresentation, estoppel, and laches. In addition, appellants averred counterclaims of fraudulent misrepresentation, unjust enrichment and punitive damages.

On November 13, 1990, Chrysler filed preliminary objections in the nature of a motion to strike appellants’ new matter and counterclaims on the grounds that the matters raised in them did not arise out of the mortgage transaction, and thus, were prohibited from being argued in this mortgage foreclosure action by Rule 1148 of the Rules of Civil Procedure. On February 13, 1991, the trial court granted Chrysler’s motion and ordered that appellants’ new matter and counterclaims be struck. This timely appeal followed.

Appellants contend that the trial court erred in striking their affirmative defenses and counterclaims. Specifically, appellants argue that Rule 1148 of the Rules of Civil Procedure only governs counterclaims in mortgage foreclosure actions and thus does not pertain to affirmative defenses. In addition, appellants argue that all three of their counterclaims are part of or incident to the creation of the mortgage itself, and thus, comply with Rule 1148.

Preliminarily we note that jurisdiction over this matter was established by this court when, sitting en banc, we denied Chrysler’s motion to dismiss the appeal on the grounds that the order appealed from was not final. Consequently, we can proceed directly to the merits of this case.

The decision whether to sever a counterclaim lies within the discretion of the trial court. Pa.R.Civ.P. § 213(b). See Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989) (citing to Kaiser v. Meinzer, 272 Pa.Super. 207, 414 A.2d 1080 (1979), appeal dismissed, 498 Pa. 136, 445 A.2d 104 (1982)). Thus, the court’s decision will not be overturned absent an abuse of that discretion.

Counterclaims in mortgage foreclosure actions are governed by Rule 1148 of the Rules of Civil Procedure, supra. This rule has been interpreted as permitting to be pled only those counterclaims that are part of or incident to the creation of the mortgage itself:

It [Rule 1148] restricts every defendant to claims which arise from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose.... No defendant may now set off a claim against the plaintiff simply because its nature is contractual or quasicontractual, as allowed in assumpsit actions. The claim must now arise, in some manner from the mortgage relationship. A counterclaim could be filed, for example, for damages for breach of warranty of title to the mortgaged premises [cf. Wacker v. Straub, 88 Pa. 32 (1878) ]. Also, it has been held that defendant may counterclaim for the balance due from plaintiff on a construction contract in connection with which the mortgage was given [Genel v. Vacca, 39 Del.Co.Rep. 191 (1952) ]. On the other hand, a counterclaim could not be filed for professional services rendered by the mortgagor to the mortgagee, at least if unrelated to the mortgage [cf. Bechtel v. Green, 17 Berks Co. L.J. 41 (1924)].

3 Goodrich-Amram 2d § 1148:1 at 488 (emphasis added). See Meritor Sav. Bank v. Barone, 399 Pa.Super. 213, 582 A.2d 21 (1990); Mellon Bank, N.A. v. Joseph, 267 Pa.Super. 307, 406 A.2d 1055 (1979). Furthermore, Rule 1148 must be interpreted narrowly. McDowell Nat. Bank of Sharon v. Stupka, 310 Pa.Super. 143, 456 A.2d 540 (1982); Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344, cert. denied 446 U.S. 918, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1979) (citing Mellon Bank, N.A. v. Joseph, supra).

So interpreting Rule 1148, we find that the counterclaims asserted by appellants are not part of or incident to the creation of the mortgage itself.

In their first counterclaim, appellants assert fraudulent misrepresentation. They contend that they entered into the agreement to purchase the Slatington premises because of the representations of Chrysler that it would provide financing not only for the purchase of the Slatington premises, but also for the rehabilitation and development of the property and for the operation of appellants’ business. Appellants allege that while Chrysler did provide funding to purchase the property, it did not finance the rehabilitation and development of the premises or the operation of appellants’ business.

In essence, appellants are alleging that Chrysler did not provide future funding for purposes other than the purchase of the property. Similar allegations were made in Overly v. Kass, supra. In Overly, the Overlys agreed to sell their farm to the Kasses. In consideration for the agreement, the Kasses executed and delivered to the Overlys a note and purchase money mortgage. Later, the Kasses defaulted on the mortgage. When the Overlys brought an action in mortgage foreclosure, the Kasses counterclaimed alleging misrepresentation. They alleged that the Overlys misrepresented the amount of income and subsidies that the property would generate and the structures that would be removed from the premises. The trial court struck the Kasses’ counterclaim on the basis that it was not part of or incident to the mortgage. This court affirmed, holding that:

[t]he mortgage is an interest in the mortgaged property created by a written agreement providing for a security for the payment of a debt or an obligation. None of the facts alleged by the Kasses deals even remotely with the creation of that security interest; rather, they deal with the agreement between the buyers and the sellers of the property. Accordingly, the Kasses’ counterclaim does not arise as part of, or incident to, the creation of the mortgage.

Overly v. Kass, 382 Pa.Super. at 115, 554 A.2d at 974.

Here, as in Overly, the alleged promises of future financing for rehabilitation of the property and for operation of appellants’ business are not part of or incident to the creation of the security interest. Instead, they pertain to the agreement of sale between appellants and Chrysler made prior to the mortgage. As a result, the trial court did not abuse its discretion in striking this counterclaim.

Appellants’ second counterclaim alleges unjust enrichment. Appellants assert that Chrysler waited to foreclose on the appellants’ property until after appellants had substantially rehabilitated the premises, and hence, until after the value of the property was increased. As a result, appellants contend that Chrysler would be unjustly enriched by the foreclosure. This counterclaim is also not part of or incident to the creation of the mortgage because the alleged facts giving rise to this counterclaim occurred after the parties were in default of the mortgage. Such a counterclaim cannot be asserted in a mortgage foreclosure action. See Mellon Bank, N.A. v. Joseph, supra.

Finally, appellants’ third counterclaim asserts a claim for punitive damages. Specifically, appellants allege that because of the misrepresentations made and the fact that Chrysler waited to foreclose, appellants suffered financial setbacks resulting in their filing for bankruptcy. Therefore, due to this willful disregard for appellants’ rights and interests, appellants contend that punitive damages are in order. However, the punitive damages sought by appellants are the result of the facts alleged in the two preceding counterclaims, which we find are not part of or incident to the creation of the mortgage. Thus, the court did not abuse its discretion in striking this counterclaim as well.

In addition to striking appellants’ counterclaims, the trial court struck appellants’ affirmative defenses of fraudulent misrepresentation, estoppel, and laches based on the requirements of Rule 1148. We agree with appellants that Rule 1148 does not govern the pleading of new matter. However, it is apparent from the record that the trial court found appellants’ affirmative defenses to be nothing more than restatements or continuations of their counterclaims. We agree. To allow appellants to bring such defenses would circumvent the purpose of Rule 1148. Accordingly, we affirm the trial court’s striking of appellants’ counterclaims and affirmative defenses.

Affirmed.

      . The United States of America was also made a defendant in the mortgage foreclosure action due to tax liens on the premises. Chrysler sought judgment against the United States for foreclosure and judicial sale of the RD # 3 Slatington premises.

      . Appellants also alleged as affirmative defenses bankruptcy, and novation. However, at oral argument before this court, appellants’ counsel explained that in arguing bankruptcy and novation, appellants were simply asserting that the representations alleged to have been made in the agreement for sale were carried over into the stipulation made during the bankruptcy proceedings. Argued in this manner, bankruptcy and novation are not defenses.

      . Because our review of the striking of appellants’ counterclaims directly impacts upon our review of the striking of their affirmative defenses, we will address the striking of the counterclaims first.


author: HESTER, Judge:

text:
    601 A.2d 342
    Dustin CLODGO by his Mother and Natural Guardian, Jill CLODGO and Jill Clodgo in her own right, Appellants, v. Herbert S. BOWMAN, M.D.; Harrisburg Hospital; Harrisburg Hospital Laboratories; Harrisburg Hospital Hematology Center; and Harrisburg Hospital Department of Pathology.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed Jan. 9, 1992.

      Donald L. Jones, Middletown, for appellants.
    Randall G. Gale, Harrisburg, for appellees.
    Before TAMILIA, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Jill Clodgo, both in her individual capacity and in her capacity as natural guardian and mother of Dustin Clodgo, appeals from the August 20, 1990 order granting preliminary objections in the nature of a demurrer to her complaint. Appellant instituted this action to recover for child support that she lost due to negligent performance of a court-ordered blood test conducted during a paternity proceeding by appellees, Robert S. Bowman, M.D., Harrisburg Hospital, Harrisburg Hospital Laboratories, Harrisburg Hospital Hematology Center, and Harrisburg Hospital Department of Pathology. Since we conclude that the grant the demurrer properly rested upon the application of the immunity afforded witnesses in judicial proceedings, we affirm.

On April 13, 1982, appellant filed a complaint for support of her minor son, Dustin, in the Court of Common Pleas of Dauphin County against Gregory Johnson. On November 1, 1982, the court ordered HLA Blood Tissue Typing Tests for appellant, Dustin, and Mr. Johnson at the Harrisburg Hospital Blood Bank. On November 19, 1982, appellee Herbert S. Bowman, in a letter to the court, stated that he had conducted the tests and determined that Mr. Johnson could be excluded as Dustin’s father. On November 24, 1982, the court dismissed the paternity suit against Mr. Johnson.

Appellant filed a second complaint for support in the same court against Michael Durbin on February 24, 1983. Once again, the court ordered mother, child, and the alleged father to undergo an HLA Blood Test at Harrisburg Hospital. Dr. Bowman conducted the tests and reported that Mr. Durbin could be excluded as Dustin’s father. That support action was dismissed by the court on October 15, 1984.

After the second suit was dismissed, appellant, who is a registered nurse, compared the results of the two blood tests performed by Dr. Bowman and noticed that the information in the two tests conflicted. When she brought the discrepancy to the attention of Dr. Bowman, he sent a clarification letter to the court. Dr. Bowman reported that he had improperly recorded the blood test results in the case of Mr. Johnson and erroneously excluded him as the father.

Appellant instituted a second paternity suit against Mr. Johnson on January 16, 1985. On February 21, 1985, the court dismissed the suit without giving any explanation for its decision, although the action apparently was based on the application of the doctrine of res judicata.

On August 6, 1985, appellant instituted the present civil action against appellees. The complaint states a cause of action for medical malpractice and requests as damages support for Dustin. Appellees filed preliminary objections to the complaint claiming that appellant had failed to state a claim against appellees by not exhausting her remedies against Mr. Johnson. On July 29, 1986, the trial court granted appellant fifteen days leave to petition the court to open the initial support action against Mr. Johnson. This action was stayed pending outcome of that action.

Appellant filed the petition to open judgment, which was granted by the trial court on February 19, 1987. Mr. Johnson appealed that decision, and on December 11, 1987, we reversed the decision, concluding that the paternity judgment could not be reopened due appellant’s failure to timely file the petition to open judgment. Appellant’s petition for allowance of appeal with the Supreme Court of Pennsylvania was denied on December 15, 1988.

The current civil suit resumed between the two parties. The trial court then granted appellees’ preliminary objections in the nature of a demurrer based on application of the absolute testimonial privilege for communications made in connection with judicial proceedings. This appeal followed. The issue presented is whether the absolute testimonial privilege for participants in judicial proceedings for communications relevant and pertinent to those proceedings insulates a court-appointed expert witness from liability premised upon medical malpractice. We are constrained to conclude that current caselaw compels the conclusion that a witness in a judicial proceeding is absolutely protected against any civil action that is premised upon communications that are pertinent and relevant and made in the course of a judicial proceeding and that the immunity protects appellees in this action.

The parameters of the judicial privilege were outlined by the Supreme court in Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355 (1986), quoting Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967): “When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them.” (Emphasis added). The privilege applies to communications which “are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” Id., 510 Pa. at 221, 507 A.2d at 355 (emphasis omitted). If the communication falls within that category, “no action will lie” for the communication. Id., 510 Pa. at 218, 507 A.2d at 354. Appellant, not Dr. Bowman, discovered Dr. Bowman’s unforgivable error, the error that triggered this series of tragic circumstances.

In the present case, there is no doubt that the communication of the erroneous information excluding Mr. Johnson as the father was made in the course of a judicial proceeding. It was made directly to the court and litigants and pursuant to a court’s order. Further, it was material and relevant to the paternity question at issue in the action. Thus, we must decide whether the privilege does not apply solely due to the fact that this action is for medical malpractice instead of a libel or defamation action.

While the immunity issue has been addressed most often in the context of defamation and related actions, our review of the relevant authority compels us to conclude that the form of the action is irrelevant to its application. Brown v. Delaware Valley Transplant Program, 372 Pa.Super. 629, 539 A.2d 1372 (1988), is instructive. There, a gunshot victim was discovered and transported to a hospital. The victim, who had no identification, was declared brain dead, and the hospital sought court permission to use his organs for transplants. The defendant at issue in Brown was the attorney who prepared the documents needed for court approval for the organ extraction, which was subsequently performed by hospital personnel. The victim’s family sued for mutilation of a corpse, intentional infliction of emotional distress, civil conspiracy, malicious use of process, assault and battery, and negligent infliction of emotional distress. We upheld the trial court’s dismissal of the attorney from the action which was premised upon application of the doctrine of judicial immunity.

We stated that the issue was whether the privilege should be limited to protection from liability solely for publication of defamatory material. We concluded that, “The immunity bars actions for tortious behavior ..., so long as it was a communication pertinent to any stage of a judicial proceeding.” Id., 372 Pa.Super. at 633-34, 539 A.2d at 1374 (emphasis added); see also Moses v. McWilliams, 379 Pa.Super. 150, 164, 549 A.2d 950, 957 (1988), wherein we collected cases and observed, “While it is true that immunity from civil liability in judicial proceedings has been applied most frequently in defamation actions, many courts, including those in Pennsylvania, have extended the immunity from civil liability to other alleged torts when they occur in connection with judicial proceedings.”

Our precedent is clear. The form of the cause of action is not relevant to application of the privilege. Regardless of the tort contained in the complaint, if the communication was made in connection with a judicial proceedings and was material and relevant to it, the privilege applies. Thus, while we agree with appellant’s premise that this action is not premised upon defamation but is a medical malpractice action, this does not alter the conclusion that the privilege applies.

We recognize that this case presents a compelling situation. The doctor has acknowledged his incorrect recording of the relevant data, and his error was at least partially the reason that Dustin lost his child support action against Mr. Johnson. However, the maxim is that hard cases make bad law, and as that maxim applies herein, we cannot allow an exception in this case to application of the immunity.

Our review of authority in other states reveals that medical malpractice actions have been instituted on the basis of expert opinions offered in judicial proceedings. If we carve out an exception to the judicial immunity for medical malpractice actions, dangerous precedent would result. Experts are called upon to offer medical opinions in a variety of situations in connection with judicial proceedings. An example is the psychiatrist asked to give an opinion of parental competency in a custody action. If we allow medical malpractice actions to survive application of the privilege, we open those experts to potential medical malpractice actions premised upon allegedly incorrect assessments of a parent’s mental capacity to care for the children. See, e.g., Gootee v. Lightner, 224 Cal.App.3d 587, 274 Cal.Rptr. 697 (4 Dist.1990). Similarly, a doctor who renders an opinion as to another doctor’s medical malpractice in a civil action instituted by a patient would be open to claims of malpractice based upon that expert’s opinion in the civil action. This simply cannot be allowed as the privilege is necessary to prevent a witnesses from refusing to testify based on a fear of potential civil liability. The rationale for the immunity applies just as strongly to medical malpractice actions as to any other type of civil action. Accordingly, we cannot allow an exception to the doctrine of judicial immunity where the cause of action contained in the complaint is medical malpractice.

Accordingly, the order is affirmed.

      . Appellees performed the tests for the court pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. §§ 6131, et seq. Section 6133 of that Act provides:
      § 6133. Authority for Test.
      In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, ... order the mother, child and alleged father to submit to blood tests....
      Section 6134 of that act provides in relevant part that the “tests shall be made by experts qualified as examiners of blood types, who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties.” Section 6136 of the Act governs the effect of the test results and provides that "the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.”

      . However, we must observe that appellant was not precluded from pursuing her action against Mr. Johnson solely due to the test results. She was free to order her own testing, and the statute, as noted in footnote one, supra, provides for cross-examination as to the blood test results. Furthermore, from our prior decision, it appears that appellant’s inability to pursue her support action against Mr. Johnson rests at least partially on her lack of due diligence in seeking to reopen the support action once she realized the test results were incorrect.


text:
    601 A.2d 346
    COMMONWEALTH of Pennsylvania v. Robert KEARNEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Jan. 13, 1992.

      Jay Meyers, Philadelphia, for appellant.
    Maxine Stotland, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for simple assault, possessing an instrument of crime, and carrying a firearm on a public street without a license. Appellant contends that (1) the trial court erred in not granting his motion to suppress evidence because the police did not have probable cause to stop and arrest him, and (2) there was insufficient evidence to support the verdict. For the following reasons, we affirm.

The trial court made the following findings of fact:

Philadelphia Police Officers observed defendant in close proximity to someone who appeared to them to engage in a drug transaction. They approached while wearing raid-gear marked “Police.” At that time the defendant reached into his waistband and produced a loaded revolver, which he proceeded to point at one of the Officers. Another Officer then disarmed the defendant.

Opinion, May 21, 1991, at 1-2.

Appellant was then arrested and charged with simple assault, aggravated assault, possessing an instrument of crime and carrying a firearm on a public street without a license. Appellant made a motion to suppress the revolver on the grounds that the police did not have probable cause to stop and arrest him. The trial court denied the motion and after a non-jury trial, appellant was found guilty of aggravated assault, possessing an instrument of crime, and carrying a firearm on a public street without a license.

Appellant then made several post-verdict motions. The court only granted appellant’s motion to reduce his aggravated assault conviction to one of simple assault and then proceeded to sentence him. Subsequently, appellant filed a motion to modify sentence, which was granted nunc pro tunc. The trial court vacated appellant’s original sentence and resentenced appellant to one-to-two years for simple assault, one-to-two years for possessing an instrument of crime, and two-and-one-half-to-five years for carrying a firearm on a public street without a license, all to run consecutively. Appellant then made timely appeal to this court.

Appellant first contends that the trial court erred in denying his motion to suppress the revolver. Specifically, appellant argues that he was not engaged in any incriminating activity when the police stopped and arrested him, and thus, the stop was deficient under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the police lacked probable cause to arrest him. Furthermore, appellant argues that the revolver should have suppressed since he was forced to abandon it because of the illegal stop and arrest. We disagree.

The standard of review of a court’s denial of a motion to suppress evidence allegedly obtained in violation of the Fourth Amendment is well-settled. We look to see

whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987).

In limited circumstances, an individual may be stopped and briefly detained. Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981). In order for such a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. Terry v. Ohio, supra. See Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987). Specifically, this standard is met “if the police officer’s reasonable and articulable belief that criminal activity was afoot [is] linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped.” Id., 364 Pa.Super. at 609, 528 A.2d at 970. Mere presence near a high crime area or in the vicinity of a recently reported crime, is not enough to warrant a Terry stop. See Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981); Commonwealth v. Hicks, supra. An officer must observe irregular behavior before he initiates a stop and, concurrently to his observation, he must hold a belief that criminal activity is afoot. See Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Espada, supra.

Here, the trial court based the validity of the Terry stop of appellant on the testimony of Lieutenant Hartman of the Narcotics Field Unit of the Philadelphia Police Department. Lieutenant Hartman testified that, on September 20, 1989, at approximately 8:00 p.m., he and five other officers dressed in plain clothes and driving two unmarked vehicles responded to a complaint about drug dealings in the 6100 block of Vine Street in Philadelphia. While at the 6100 block, he observed appellant standing next to another person at the comer of Sixty-first and Vine Streets. He then observed on three different occasions people approach appellant’s companion, hand cash to him and then take an object that he retrieved from his pocket. During each transaction, the officer observed appellant standing next to his companion. Based on his experience as a narcotics officer, Lieutenant Hartman testified that he believed that drug transactions had been made. After the third transaction occurred, he observed appellant and the other man leave the corner together. N.T., March 16, 1990, at 8-11.

From the officer’s testimony, it is evident that appellant was not merely present in a high crime area or in the vicinity of a recently reported crime. Rather, appellant was with a person who, it was believed, was presently engaged in selling drugs. While appellant contends that he did nothing but stand next to this person, that was enough to support a Terry stop. When a person is suspected of presently committing a crime, a reasonable suspicion develops that his companion is also involved, even though the companion’s only suspicious action was being in the company of the suspect. See Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209, 1212 (1984) (where driver of automobile attempted to conceal weapon, Terry stop and frisk of both driver and companion upheld.); Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379 (1983) (valid Terry stop of defendant and his companion where both were in a store at 6:00 a.m. and it was learned that defendant’s companion was carrying a gun.) See also La-Fave, Search and Seizure: A Treatise on the Fourth Amendment, Second Edition, Section 9.3(c), at 453-54. Thus, while there is not probable cause to arrest the companion, there is a sufficient basis for a Terry stop. Consequently, the police stop of appellant was not in violation of the Fourth Amendment.

Appellant next argues that the police lacked probable cause to arrest him. Furthermore, he argues that due to the illegal stop and arrest, he was forced to abandon the revolver he was carrying, and thus the revolver should have been suppressed.

The test for determining whether a police officer has sufficient probable cause to make an arrest without a warrant is well-established. “Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense.” Commonwealth v. Chase, 394 Pa.Super. 168, 171-72, 575 A.2d 574, 575 (1990). In determining whether probable cause exists, “we consider all the factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.” Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), (quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972)).

Viewing the circumstances as the Lieutenant Hartman saw them to man pointing a revolver at him even though he was clearly identified as a police find that probable cause existed to arrest appellant. Furthermore, we find no support in the record for appellant’s claim that he was not pointing the gun at the officer but merely abandoning it. Thus, we conclude that the Terry stop of appellant was valid and that there was probable cause to arrest him. Accordingly, we find that the trial court did not err in denying appellant’s motion to suppress the revolver.

Finally, appellant contends that there was insufficient evidence to support the verdict. Appellant, however, did not raise a general sufficiency of evidence contention in his post-trial motions. Therefore, this contention is waived. See Commonwealth v. Singh, 372 Pa.Super. 512, 539 A.2d 1314 (1988); Commonwealth v. McDonald, 322 Pa.Super. 110, 469 A.2d 206 (1983). We note, however, that even if this issue was not waived, it is meritless. Accordingly, we affirm the judgment of sentence imposed by the lower court.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 907(a).

      . 18 Pa.C.S.A. § 6108.

      . 18 Pa.C.S.A. § 6106.

      . Appellant did raise a sufficiency of the evidence claim as to his conviction for aggravated assault. The trial court agreed with appellant and consequently reduced his conviction to one for simple assault.

      . Appellant asserts that a defense witness testified at trial that appellant was inside a store when the police arrested him, and that from there he was taken outside and beaten. Appellant argues that because this testimony was unrebutted by Lieutenant Hartman, the only Commonwealth witness, the Commonwealth did not meet its burden to show that appellant was guilty beyond a reasonable doubt on any of the charges made against him. We disagree. It is well-settled that the uncorroborated testimony of a prosecution witness may be sufficient to convict in spite of contrary evidence from the defense, if the trier of fact, based on the evidence before it, chooses to lend credibility to the former. See Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). Here, the trial court acting as the trier of fact heard the testimony of both Lieutenant Hartman and the defense witness. It then made findings of fact in which it adopted substantially all of Lieutenant Hartman’s testimony. Thus, the court chose to lend credibility to the Commonwealth witness. As a result, appellant's contention must fail.


author: WIEAND, Judge:

text:
    601 A.2d 349
    Barbara M. SCHWARTZ, Appellant, v. William G. SCHWARTZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1991.
    Filed Jan. 21, 1992.

      Janet S. Holcombe, Philadelphia, for appellant.
    Marvin L. Wilenzik, Norristown, for appellee.
    Before WIEAND, JOHNSON and HOFFMAN, JJ.
   WIEAND, Judge:

In this divorce action, the trial court entered an interim order, as permitted by 23 Pa.C.S. § 3323(f), directing the wife to deliver to the husband certain funds belonging to husband but which were being held in escrow by wife’s attorney. Wife appealed.

Because the issue of appealability goes to the jurisdiction of this Court to reach the merits, we must first consider appellee’s contention that the trial court’s order is interlocutory and not immediately appealable. See: Vendetti v. Schuster, 418 Pa. 68, 73, 208 A.2d 864, 867 (1965); Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 459, 577 A.2d 631, 633 (1990); Joseph Palermo Dev. Corp. v. Bowers, 388 Pa.Super. 49, 51, 564 A.2d 996, 997 (1989).

Matrimonial courts have been given full equity power and jurisdiction by 23 Pa.C.S. § 3323(f), which provides as follows:

(f) Equity power and jurisdiction of the all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

In the instant case, the trial court found that certain post-separation investments made with funds borrowed by husband from his father had resulted in tax refunds to husband. The refund checks, however, had been issued in the names of husband and wife. Wife, despite a promise to endorse the checks and return them to husband, delivered them to her attorney who refused to surrender them. Instead, they were deposited in an account maintained by the attorney. On husband’s petition and after a full hearing, the trial court, in which the parties’ divorce action was pending, found that husband was entitled to the funds and directed that they be delivered to him.

It is clear that an appeal will lie only from a final order unless an appeal is otherwise permitted by statute or rule of court. See: Adoption of G.M., 484 Pa. 24, 27, 398 A.2d 642, 643 (1979); Blackman v. Katz, 390 Pa.Super. 257, 261, 568 A.2d 642, 644 (1990); Katz v. Katz, 356 Pa.Super. 461, 465, 514 A.2d 1374, 1376 (1986), allocatur denied, 515 Pa. 581, 527 A.2d 542 (1987). A final order is one which ends the litigation or, alternatively, disposes of the entire case. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). The order in the instant case does not end the litigation or dispose of the entire case. The divorce action remains unfinished because there has been no final distribution of marital property.

The order is also not appealable under the exception to the general rule created by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and adopted by the Supreme Court of Pennsylvania in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), “for situations where postponement of [the] appeal until after final judgment might result in irreparable loss of the right asserted.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). In Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), the Supreme Court held that an interim order awarding counsel fees and expenses was not appeal-able under the Cohen exception because any right claimed with respect thereto was not irreparably lost but could be compensated through the final order of distribution. The Court reasoned:

new provisions of the Divorce Code authorizing equitable distribution of marital property and permanent alimony have taken away any reason to fear that funds once paid out pursuant to an interim award are unrecoverable.” Sutliff], supra, 326 Pa.Super. [496] at 504, 474 A.2d [599] at 603 (Beck, J., dissenting). In the event that an initial award of interim relief is granted in error, the court has the power to make adjustments in the final settlement via the equitable division of marital property, permanent alimony, and/or the final award of attorney’s fees and costs. Thus, under the new Code the conclusion that a grant of interim financial relief may result in the irreparable loss of a claimed right cannot be supported. We hold, therefore, that such an order is interlocutory and thus not reviewable until final disposition of the case.

Id., 509 Pa. at 96-97, 501 A.2d at 215. Its decision, the Court said,

reflects the policy of law which abhors “piecemeal determinations and the consequent protraction of litigation.” Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). See also Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1969). The avoidance of unduly protracted divorce proceedings is consistent with the legislature’s intent to mitigate harm to the spouses and their children during this emotionally taxing experience. 23 P.S. § 102(4) (Supp.1985). Under the present procedure an appeal of an interim order stays the entire action and results in unnecessary delay in the dissolution of divorce actions.... Moreover, a policy which allows piecemeal appeals from a single ease serves only to increase the cost of litigation, and favors the party with the greater resources, who can strategically delay the action at the expense of the indigent party.

Id., 509 Pa. at 97, 501 A.2d at 215. Strong policy considerations, the Court concluded, required that the interim order be deemed interlocutory and not immediately appealable. Id., 501 A.2d at 215.

The amount of money being held by wife’s attorney is $28,248.32, plus accrued interest. Husband is a partner in a prestigious Philadelphia law firm. Wife’s inventory suggests that the value of the marital property far exceeds the amount involved in the preliminary skirmish which fostered the instant appeal. It seems eminently clear, therefore, that wife’s claim of trial court error will not be irreparably lost if the court's interlocutory order is not reviewed immediately. Under these circumstances, we hold that the trial court’s interlocutory order is not reviewable until there has been a final disposition of the action.

Appeal quashed.

      . A pre-argument motion to quash this appeal was denied without prejudice to appellee’s right to renew the motion before the panel hearing argument.

        . A bifurcated decree in divorce had been entered on November 22, 1989, but the distribution of marital property was deferred.