author: POPOVICH, Judge:

text:
    438 A.2d 977
    COMMONWEALTH of Pennsylvania, v. Salvatore ABBRUZZESE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 18, 1981.

      Michael D. Rubin, Philadelphia, for appellant.
    Gaele McLaughlin Barthod, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order denying, after hearing, the relief requested in appellant’s counseled Post Conviction Hearing Act (PCHA) petition. We affirm.

Appellant entered guilty pleas on two informations charging Burglary, and Possession with Intent to Deliver a Controlled Substance pursuant to a plea bargain by which the Commonwealth nol prossed other charges. After an extensive colloquy, the trial court accepted the pleas and sentenced appellant to serve concurrent terms of imprisonment of five to fifteen years. A timely motion for reconsideration of the sentence was denied after hearing. No direct appeal from the judgments of sentence was taken. Some twenty-two months later, appellant, with counsel, filed a PCHA petition alleging, as he does on this appeal, (1) that he entered his guilty pleas solely at the urging of his original counsel who had promised him a minimum sentence of not more than three years, and (2) that counsel failed to advise him of his right to file a motion to withdraw his guilty plea. These grounds were also reasserted in an amended PCHA petition. After hearings on the PCHA petitions, the hearing court issued an order denying relief. We affirm.

Before reaching the merits of appellant’s claims, we need to determine the scope of review to be given in this case. The prosecution argues on appeal that appellant has waived the right to raise claims concerning his guilty plea because his failure to appeal constitutes a rebuttable presumption of a “knowing and understanding” waiver. 19 P.S.A. § 1180-4(b)(1). We will consider each claim seriatim.

Appellant’s first allegation that he was deprived of the effective assistance of counsel because counsel failed to advise him of his right to file a motion to withdraw a guilty plea constitutes “extraordinary circumstances excusing appellant’s failure to raise the issue previously.” Commonwealth v. Maute, 263 Pa.Super. 220, 224 ftn. 2, 397 A.2d 826, 828 ftn. 2 (1979).

At the guilty plea, sentencing, and reconsideration hearings, appellant was represented by the same counsel. Appellant’s PCHA counsel is different from his guilty plea counsel, thus properly preserving the issue of the latter’s ineffectiveness. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Furthermore, we have said:

“[i]f counsel on direct appeal is the same as trial counsel, and the issue of trial counsel's] ineffectiveness is not asserted on appeal (either by failure to take an appeal at all or by not raising the issue on appeal), there is no waiver. Commonwealth v. Dancer, [supra]. As we said in Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976):
‘. . . it is ... unrealistic to expect counsel to file motions and/or an appeal challenging his own ineffectiveness ....”’ Commonwealth v. Frankhouser, 491 Pa. 171, 175, 420 A.2d 396, 398 (1980). (Emphasis added).

For these reasons, notwithstanding appellant’s failure to have taken a direct appeal, no waiver has occurred.

With respect to appellant’s claim that counsel induced him into entering a plea of guilty, the proper procedure to challenge a guilty plea, where the only challenge is directed to the validity of the plea, would have been to file a motion to withdraw before the trial court. Commonwealth v. Frankhouser, supra. If that was unsuccessful, appellant could have raised the issue on direct appeal. Commonwealth v. Allen, 278 Pa.Super. 501, 502, 420 A.2d 653, 656 (1981). Appellant, however, in this appeal assigns counsel’s ineffectiveness as the basis for his failure tó file a petition to withdraw. Thus, we will dispose of the issues (i.e., whether trial counsel was ineffective for failing to advise him of his right to file a motion to withdraw, and whether counsel forced him into entering a plea of guilty) because the issues in this case “are inseparably linked and judicial economy is best promoted by dispensing of the two issues in one, unified proceeding.” See Commonwealth v. Maute, supra, 263 Pa.Super. at 224 ftn. 2, 397 A.2d at 828 ftn. 2.

Turning now to the merits of appellant’s claim, the first issue presented, i. e., the allegation that counsel guaranteed a lesser sentence than actually imposed, is essentially an issue of credibility between the testimony of the original counsel and his associate (who represented appellant at the hearing for the reconsideration of sentence) and that of appellant. The hearing court, as the trier of fact, resolved the credibility issue in favor of the guilty plea counsel and his associate. It is hornbook law that we will not disturb findings of the hearing court on appeal when they are supported in the record. Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856, 858 (1981); Commonwealth v. Taylor, 491 Pa. 205, 206, 420 A.2d 413, 414 (1980); Commonwealth v. Minnick, 432 Pa. 462, 464, 247 A.2d 569, 571 (1968). Instantly, the following excepted portions of the record show that trial counsel testified that he never guaranteed appellant a lesser sentence:

[TRIAL COUNSEL]
A. “Well, because I believe at the listing in front of Judge Klein there were four open burglaries. He was on a detainer from Judge Richette as a result of the arrest of the arrest [sic] on these burglaries and a detainer in front of Judge Conroy and my indication at that time—I had a program in front of Judge Klein and I was working with Assistant District Attorney Michael Goldberg at the time and I felt that if he pleaded guilty in front of Judge Klein, that we could work out the other sentences with Conroy and Richette.
[THE COURT]
You mean Judge Conroy and Judge Richette.
[TRIAL COUNSEL]
I’m sorry, sir.
[PCHA COUNSEL FOR APPELLANT]
Q. Did you ever advise him during any of these meetings that you had with him what his sentence would be?
[TRIAL COUNSEL]
A. Well, I indicated to him that I would be working for a very low minimum, not caring about what the maximum was and I was hopeful to get a one year minimum, ten year maximum or four year maximum, whatever. I don’t recall exactly what the max was but I indicated to him that I was trying to work out that kind of a deal, yes.” PCHA Hearing Transcript, 3/19/79, at 4-5.

Moreover, the appellant himself, in testifying as to what advice counsel gave him just prior to his entry of his guilty pleas, testified as follows:

[PCHA COUNSEL FOR APPELLANT]
Q. “Now, would you tell His Honor in your own words what occurred between you and Mr. Mozenter [trial counsel] on the date that you pleaded guilty to the charges involved here which took place on July 22, 1976 in Room 696 before Judge Klein?
[APPELLANT]
A. We come [sic] down from up in the sheriff’s and Bob told me—
Q. Bob meaning?
A. I mean Mr. Mozenter told me to plead guilty. He says some of the cases will get nolle prossed and we’ll get maybe two and a half to five, one to three or three to 15, somewhere in that range. So I went along and pled guilty.” (PCHA Hearing Transcript, at 22) (emphasis added).

When appellant was then asked whether he thought the foregoing was merely a suggestion or a guarantee, he responded, “I felt that it was a guarantee because I had a lot of faith in” my attorney. (PCHA Hearing Transcript at 23) (emphasis added). Therefore, because the record supports the hearing court’s determination that appellant’s own testimony shows that counsel did not guarantee a lesser sentence, we will not disturb that determination on appeal. Commonwealth v. Taylor, supra.

Appellant is also not entitled to relief on his second claim that counsel was ineffective for failing to advise him of his right to withdraw his pleas.

Normally, where the record shows, as in the instant case, that the accused had not been informed “by the lower court or his counsel of the right to petition to withdraw his guilty plea, or the right to the assistance of counsel in filing such a petition, and of the consequences of not filing such a petition,” Commonwealth v. Johnson, 258 Pa.Super. 214, 217, 392 A.2d 760, 762 (1978) (emphasis in original), we have applied the following principles:

“In such situations appellants are treated in the same fashion as those whose appeals were pending when we decided Commonwealth v. Roberts, [237 Pa.Super. 336, 352 A.2d 140 (1975)]; we remand for the filing of petitions to withdraw the guilty pleas nunc pro tunc, thereby affording the trial court the first opportunity to rule on the underlying issue....” Commonwealth v. Johnson, Id., 258 Pa.Super. at 218, 392 A.2d at 763 (emphasis in original). Accord Commonwealth v. Frankhouser, supra.

In the instant case, however, a remand is not warranted because a full PCHA hearing was held below on appellant’s challenges to his guilty plea and the court below addressed the issues appellant raised and denied relief.

As a result, the issue, (i.e., the inducement of his plea by counsel) that appellant claims was foreclosed because trial counsel failed to inform him of his right to file a motion to withdraw is the same issue that we have determined is without merit. Thus, appellant has not in any way been prejudiced by counsel’s inaction. See Commonwealth v. Velasquez, 488 Pa. 244, 246, 412 A.2d 489, 490 (1980).

Under these circumstances, we have said:

“In this instance, the court has the benefit of the lower court’s view on the issues presented [in his PCHA petition], and also a full record on which to base a decision on [the] merits; therefore, to still require the remanding for the filing of the withdrawal petition would be a futile waste of judicial energy.” Commonwealth v. Arndt, 269 Pa.Super. 578, 581, 410 A.2d 852, 854 (1979) (footnote omitted).

Order affirmed.

JOHNSON, J., concurs in the result.

      . See the Act of January 25, 1966, P.L. (1965) 1580 § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1981-82).

      . 18 Pa.C.S.A. § 3502.

      . 35 Pa.C.S.A. § 780-113(a)(30).

      . Although a different attorney was assigned to represent appellant at the reconsideration hearing, that attorney was an associate of the individual who had represented appellant at the guilty plea and sentencing stages. Thus, these individuals would constitute the same counsel for purposes of resolving appellant’s ineffectiveness claim. See Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974).

      . At the time appellant entered his plea, on July 22, 1976, this Court had said that:
      “[w]here the only challenge to the proceedings in the trial court is directed to the validity of the guilty plea itself, the proper procedure is to first file with that court a petition to withdraw the plea.” Commonwealth v. Lee, 460 Pa. 324, 327, 333 A.2d 749, 750 (1975) (Emphasis added).
      However, on December 1, 1975, after Lee was decided, we “deemed it necessary to require strict compliance with this procedure.” Commonwealth v. Roberts, supra, 237 Pa.Super. at 338 n. 1, 352 A.2d at 141 n. 1 (1975). (Emphasis added) The requirement that a challenge to a guilty plea must be challenged first before the trial court has been codified in Pa.R.Crim.P. 321, whose effective date was some thirteen months before the date that appellant entered his plea. Rule 321, in addition to requiring that a petition to withdraw be filed imposed a ten day time limit for the filing of such a petition. Because of the effective date of the rule, the trial court said “that it was not necessary to advise defendant re petition to withdraw at that time.” (Trial Court Opinion, at 5).
      We need not decide whether either his counsel or the court should have advised him that a petition to withdraw must be filed because even if such a duty existed:
      “[t]his cannot be prejudicial to the appellant where the same issues not only could have been considered on the merits in the collateral PCHA hearing (.. . but in fact were considered on the merits in the PCHA hearing . . . . ” Commonwealth v. Unger, 494 Pa. 592, 598, 432 A.2d 146, 149 (1981) (citations omitted) (emphasis in original).

      . In an amended PCHA petition, appellant also attacked his guilty plea on the following grounds: (1) the colloquy was defective; (2) appellant did not understand the elements of the burglary and possession with intent to deliver a controlled substance charges; and (3) the court below failed to establish a factual basis for the crimes charged. However, those grounds are not raised in this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    438 A.2d 981
    Chrisie SCOUMIOU v. UNITED STATES STEEL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1981.
    Filed Dec. 18, 1981.

      James T. Carney, Pittsburgh, for appellant.
    Dennis R. Joyce, Pittsburgh, for appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Common Pleas Court of Allegheny County dismissing Exceptions and a Petition for Reconsideration. For the following reasons, we quash the appeal.

Shorn of related proceedings not pertinent to our decision, the facts of the case are these:

On January 18, 1977, appellee, Chrisie Scoumiou, filed a praecipe for a Writ of Summons in Trespass and Assumpsit which writ was duly served upon appellant, the United States Steel Corporation, on January 24, 1977. No further action was taken, and the case was automatically dismissed pursuant to a local rule of Court, Rule 229(e) of the Court of Common Pleas of Allegheny County, which commands as follows:

“(e) TERMINATION OF INACTIVE CASES
Any matter pending in the Civil or Family Division in which there has been no activity of record for a period of two (2) years or more shall be terminated automatically by operation of law by reason of inactivity. The first period of two years is to begin on January first, 1973. The matter may be reactivated by the Court upon petition for good cause shown after such notice as the Court shall direct. The filing of a paper after automatic termination under this rule shall not reactivate the terminated matter. Adopted June 26, 1974. Eff. Jan. 1, 1975.
Note: This rule is adopted Pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration, adopted May 10, 1973.” (Emphasis added).

On May 12, 1980, appellee presented a petition to reactivate the case. After a hearing, the court issued an order on May 29, 1980, reactivating the matter and directing appellant to file a complaint within twenty days thereof. (Record, No. 4).

On June 6, 1980, appellant separately filed both a petition for reconsideration and exceptions to the order of May 29, 1980. Both the petition and exceptions set forth precisely identical reasons. The matter then went before a court en banc which issued an opinion in support of its order of November 7, 1980, dismissing the exceptions and the petition for reconsideration. (Record, No. 10).

Appellant thereupon filed this appeal on December 2, 1980, within thirty days of the dismissal order of November 7,1980, but more than six months after the order of May 29, 1980 which reactivated the case.

The issue thus arises whether the time for appeal as prescribed by Rule 903 of the Rules of Appellate Procedure begins to run from the entry of the reactivation order of May 29, 1980, or from the order of November 7, 1980, when the lower court dismissed appellant’s exceptions and petition for reconsideration.

We conclude that the 30-day appeal period began to run from the entry of the former order and had expired when the appeal to this Court was actually filed.

Pa. R.A.P. 311, the rule governing interlocutory appeals as of right, provides specifically that “[a]n order opening, vacating or striking off a judgment...” may be appealed as of right. Appellant does not argue that the order of May 29, 1980, was anything but an order opening a judgment of non pros. See Kennedy v. Board of Supervisors, 243 Pa.Super. 46, 364 A.2d 442 (1976). Clearly, then, appellant could have appealed the order of May 29, 1980, immediately upon its entry and within thirty days thereafter. The mere filing of a petition after the entry of the order, either in the form of exceptions or a petition for reconsideration in no way extended the running of the appeal period. See Rule 1701 Pa. R.A.P. and the commentary thereto.

This Court has said that:

“. . . absent a stay or order granting reconsideration issued by the lower court, a petition for reconsideration does not toll the statutorily mandated appeal time. To hold otherwise would permit a party to employ dilatory tactics as a strategy.”
Provident National Bank v. Rooklin, 250 Pa.Super. 194, 201, 378 A.2d 893, 896 (1977). (Emphasis added)

Appellant argues that as of May 29, 1980, the date of the first order, it had three possible courses of action: (1) to file an immediate appeal to this court; (2) to file exceptions to a court en banc; (3) to continue to litigate and raise the issue again on an appeal from a final order. Brief for Appellant, at 6. These may have been options available to appellant; however, appellant attempts to qualify the second option by providing for the right to file an appeal after exceptions are dismissed. Obviously, if that were the correct appellate procedure, then every litigant aggrieved by an appealable interlocutory order could unilaterally extend the appeal period merely by filing exceptions, and that, of course, would amount to an impermissible assault on orderly appellate procedure. Provident National Bank v. Rooklin, supra.

Therefore, the trial court’s order dismissing the exceptions is not properly before us, and we do not reach the merits of the case. The appeal is quashed as untimely filed.

      . The reasons were set forth in both documents filed by appellant and contained the following language:
      “(1) The decision of the trial court is erroneous as a matter of law in that the plaintiff’s [appellee’s] claim of inability to secure counsel does not excuse her failure to prosecute her action.
      (2) The decision of the trial court is erroneous as being against the evidence in that the evidence showed that the plaintiff was aware of the possibility that her failure to prosecute this action would result in its dismissal but she took no effective action.” (Records, Nos. 5).

      . We note in passing that in its opinion, the lower court did not reach the merits of appellant’s exceptions on the stated theory that an order reactivating a case is interlocutory and not appealable except
        by permission. As we have pointed out, infra, although the order is indeed interlocutory, it is appealable as of right pursuant to Pa. R.A.P. 311. The court also could have disposed of the petition for reconsideration on its merits notwithstanding the fact that thirty days had elapsed from the entry of its order reactivating the case. When an appeal is not taken, the lower court is not divested of jurisdiction. Scharfman v. Philadelphia Transportation Co., 234 Pa. Super. 563, 340 A.2d 539 (1975).

      . The pertinent section of Pa. R.A.P. 903 provides:
      “(a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.” (Emphasis added)

      . The relevant portion of Pa. R.A.P. 1701 provides:

        “(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
      (b) Authority of lower court or agency after appeal. After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may:
      (1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.
      (2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.
      (3) Grant reconsideration of the order which is the subject of the appeal or petition if:

      (i) an application for reconsideration of the order is filed in the lower court or other government unit within the time provided or prescribed by law; and

      (ii) an order expressly granting reconsideration of such prior order is filed in the lower court or other government unit within the time prescribed by these rules for the filing of a notice of appeal, petition for allowance of appeal or petition for review of a quasijudicial order with respect to such prior order, or within any shorter time provided or prescribed by law for the granting of reconsideration.

        A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for allowance of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order, and the clerk of any court in which such an inoperative notice or petition is filed or docketed shall upon praecipe of any party note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for allowance of appeal or petition for review begins to run anew añer the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the lower court or other government unit.... ” (Emphasis added).
      The commentary also sheds some insight into the issue:
      “Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the lower court or other government unit to grant reconsideration if action is taken during the applicabie appeal period, which is not intended to include the appeal period for cross appeals, or, during any shorter applicable reconsideration period under the practice below, and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by the taking of a ‘snap’ appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsidera

        tion below and a notice of appeal, etc. If the application lacks merit the lower court or other government unit may deny the application by the entry of an order to that effect, or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period. If the lower court or other government unit fails to enter an order ‘expressly granting reconsideration’ (an order that ‘all proceedings shall stay’ or an order under Rule 2545 (answer to application) requesting an answer to an application for reargument, will not suffice) within the time prescribed by these rules for seeking review, Subdivision (a) becomes applicable and the power of the lower court or other government unit to act on the application for reconsideration (including reargument in the Superior Court or Commonwealth Court) is lost. ” (Emphasis added).


author: SHERTZ, Judge:

text:
    438 A.2d 984
    COMMONWEALTH of Pennsylvania, v. Juan MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 18, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   SHERTZ, Judge:

Appellant, Juan Martinez, was convicted of Criminal Conspiracy, Loitering and Prowling at Night and Attempted Burglary. On March 18, 1975, Appellant was sentenced to concurrent terms of probation of three years on Conspiracy—Indictment No. 1368, one year on Loitering—Indictment No. 1369 and five years on Attempted Burglary—Indictment No. 1370. Appellant did not appeal this sentence.

On June 16, 1977, Appellant appeared before the lower court for a violation of probation hearing. The court terminated Appellant’s probation on Bill No. 1369 and revoked his probation on Bill Nos. 1368 and 1370. Concurrent terms of three years probation, on Bill 1368 and 1370, were imposed. Appellant did not appeal this sentence.

On July 17, 1979, Appellant again appeared for a violation of probation hearing. Appellant’s probation was revoked and consecutive terms of imprisonment of one to ten years on Bill Nos. 1368 and 1370 were imposed. This appeal followed.

In this appeal from his sentence for probation revocation, Appellant argues that the legality of his sentence is properly before this court either because his original sentence for his convictions of attempted burglary and criminal conspiracy was illegal and this issue cannot be waived or because trial counsel was ineffective for failing to object to Appellant’s improper sentence for his conviction of both criminal conspiracy and attempted burglary.

Although Appellant failed to raise the issue of the illegality of sentence on direct appeal from his original sentence, we will consider it at this time because it is not a waivable issue. Commonwealth v. Turner, 290 Pa.Super.Ct. 428, 434 A.2d 827 (1981); Commonwealth v. Welch, 291 Pa.Super.Ct. 1, 435 A.2d 189 (1981).

Instantly, Appellant was convicted and sentenced for criminal conspiracy and attempted burglary, a result clearly illegal under 18 Pa.Cons.Stat.Ann. § 906 (Purdon 1976). See Commonwealth v. Jackson, 280 Pa.Super.Ct. 522, 421 A.2d 845 (1980); Turner, supra. Section 906 prohibits a conviction for more than one inchoate crime when the conduct engaged in is designed to end in the commission of only one crime. Here, Appellant’s criminal conspiracy to commit burglary and his subsequent attempted burglary clearly constituted “conduct designed to culminate in the commission of the same crime”—burglary. Section 906, supra; Turner, supra. Accordingly, Appellant should not have been sentenced for both attempt and conspiracy, but only for one or the other. We shall therefore vacate the judgments of sentence for attempt and conspiracy and remand the case to the lower court so that it may resentence Appellant for either attempt or conspiracy. Jackson, 280 Pa.Super.Ct. at 524, 421 A.2d at 846.

Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . 18 Pa.Cons.Stat.Ann. § 903 ((Purdon 1976).

      . 18 Pa.Cons.Stat.Ann. § 5506 (Purdon 1976).

      . 18 Pa.Cons.Stat.Ann. § 901 (Purdon 1976).

      . 42 Pa.Cons.Stat.Ann. § 9781(a) (Purdon 1981), formerly 18 Pa. ' Cons.Stat.Ann. § 1386 (Purdon 1976), states, in pertinent part: “The defendant or the Commonwealth may appeal as of right the legality of the sentence.” Act of December 30, 1974, P.L. 1052, No. 345, § 1.

      . Section 906 provides: “Multiple Convictions Barred. A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or culminate in the commission of the same crime.” Act of December 6, 1972, P.L. 1482, No. 334, § 1.

      . Appellant was sentenced consecutively to terms of imprisonment of one to ten years on attempted burglary and criminal conspiracy, both felonies of the second degree. 18 Pa.Cons.Stat.Ann. §§ 905, 3502(a). Although we have the option of either remanding for resentencing, or amending the sentence directly Commonwealth v. Eberts, 282 Pa.Super.Ct. 354, 422 A.2d 1154 (1980), since the offenses are of the same degree, we will remand to the lower court to resentence Appellant for either attempt or conspiracy.


text:
    438 A.2d 985
    COMMONWEALTH of Pennsylvania, v. Stephen LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Dec. 18, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   SHERTZ, Judge:

On January 9, 1980, Appellant, Stephen Lewis, was convicted in the Municipal Court of Philadelphia of Criminal Attempt (Theft). He was sentenced to serve a term of imprisonment of 30 days to run concurrently with any other sentence Appellant was then serving. A petition to the Court of Common Pleas for Writ of Certiorari was denied and this appeal followed. We affirm.

Appellant’s sole contention on appeal is that the evidence was insufficient to sustain the conviction. The test for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

Applying this test, the evidence was sufficient to sustain Appellant’s conviction. A uniformed police officer observed Appellant, from a distance of approximately 20 feet, approach a man sleeping on a bench and attempt to remove his wristwatch. Appellant lifted the stretch band of the watch above the victim’s wrist and moved the watch one inch. Upon seeing this, the officer immediately walked over, arrested Appellant and awakened the sleeping man.

The offense of theft by unlawful taking is defined as:

Theft by Unlawful Taking or Disposition
(a) movable property—A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

Act of December 6,1972, P.L. 1482, No. 334,18 Pa.Cons.Stat. Ann. § 3921.

Criminal attempt is defined as:
Criminal Attempt
(a) Definition of Attempt—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward commission of that crime.

Acts of December 6, 1972, P.L. 1482, No. 334, 18 Pa.Cons. Stat.Ann. § 901.

Reviewing the evidence in light of the applicable law, we believe it is sufficient to sustain Appellant’s conviction.

Judgment of sentence affirmed.

      . 18 Pa.Cons.Stat.Ann. § 901 (Purdon 1976).


text:
    438 A.2d 986
    Karen Lee SELLERS, Appellant, v. Gilbert Ray SELLERS.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Dec. 18, 1981.

      Richard L. Jacobs, Beaver Falls, for appellant.

      Gilbert Ray Sellers, in pro. per.
    Before CERCONE, President Judge, and SHERTZ and WIEAND, JJ.
   SHERTZ, Judge:

Appellant, Karen Lee Sellers, filed a petition with the lower court in which she sought to be relieved of the costs of an action in divorce pursuant to Rule 1137, Pa.R.Civ.P. The lower court issued an Order, granting in part and denying in part, the request to proceed in forma pauperis. From that Order Appellant took the instant appeal in which she asserts the lower court abused its discretion in its failure to relieve her fully of the divorce costs. We agree with this assertion.

The facts of this case may be briefly summarized. Appellant, who is the mother of two minor children for whom she receives no support from her husband, has income in the amount of $294 per month from public assistance. Her petition set forth monthly expenses amounting to $288.50. In addition, the petition avers that she owns no real property, no personal property of significant value, no stocks, bonds, or savings accounts.

At the time of the hearing held in this matter, Appellant had been separated from her husband for approximately three months. She testified to the fact that she had relatives living nearby but that her husband had moved to Ohio. Finally, she stated she could not afford the costs of a divorce.

The lower court has considerable discretion in examining a petition to determine indigency, Moskol v. Moskol, 247 Pa.Super.Ct. 181, 371 A.2d 1387 (1977), and this Court will not reverse absent an abuse of same. Id., 247 Pa.Super. at 183, 371 A.2d at 1389. Moreover, the mere filing of a petition

does not automatically establish the petitioner’s right to proceed in forma pauperis. “Rule 1137 provides that the court must satisfy itself of the truth of the averment of inability to pay made in the petition before ordering that the petitioner may proceed by paying reduced costs or no costs.”

Nicholson v. Nicholson, 247 Pa.Super.Ct. 172, 175, 371 A.2d 1383, 1384 (1977) (citations omitted). One who seeks to be relieved of costs under Rule 1137 has the burden of satisfying the lower court as to inability to pay. Moskol, 247 Pa.Super.Ct. at 183, 371 A.2d at 1389.

In making a determination that one is able to pay, in part, the costs of a divorce, the trial court is, however, limited in the factors upon which it may rely. In this instance the trial court has not indicated, nor does the record disclose, significant flaws in the reliability of Appellant’s figures. Compare, Tomashefski v. Tomashefski, 246 Pa.Super.Ct. 118, 369 A.2d 839 (1976). Appellant presented uncontradicted and unquestioned testimony that her sole source of income was $294 per month from public assistance and that she possessed no assets of significant worth. “If a person is on public assistance, and (his) net worth is minimal, there will be a prima facie showing of inability to pay costs.” Howell v. Howell, 245 Pa.Super.Ct. 483, 485, 369 A.2d 731, 732 (1977) (citations omitted). Appellant’s expenses amounted to at least $288.50 per month. Thus, although, as the trial court states, she may have “a little money” left at the end of each month, Trial Ct. Slip.Op. at 2, it still would be eleven months before she could afford the costs assessed. Although the trial court may consider ability to pay in the near future, a period of eleven months cannot be so deemed. See, e.g., Schoepple v. Schoepple, 239 Pa.Super.Ct. 557, 561, 361 A.2d 665, 668 (1976); Howell, 245 Pa.Super.Ct. at 485-87, 369 A.2d at 732-33.

The trial court further places reliance upon the fact that Appellant sought a divorce “only three months after (this) separation . . . had immediate family in Beaver County . . . did not file a (C)omplaint in (S)upport against (him) until she was required to do so by the Department of Public Assistance.” Trial Ct. Slip Op. at 2. As has often been stated by this Court, “the question upon which we must focus, as it is posed by the rule, is the party’s ‘inability to pay all or part of the costs of the action.’ ” Tomashefski, 246 Pa.Super.Ct. at 123, 369 A.2d at 842 (citation omitted). See also Howell, supra; Smith v. Smith, 245 Pa.Super.Ct. 479, 369 A.2d 729 (1977). Focusing upon that question in this instance, we find that Appellant is unable to afford the costs of divorce levied by the lower court.

Therefore, that portion of the Order of the lower court requiring Appellant to pay initial filing and service costs is reversed and the case is remanded for further proceedings. Jurisdiction is not retained.

      . Rule 1137, applicable at the time of these proceedings, was rescinded effective 7/1/80 and substantially re-enacted at Rule 1920.62, Pa.R.Civ.P., effective 7/1/80. Rule 1137 provided:
      Proceedings by Indigent Parties
      (a) Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters’ fees and stenographic charges. The petition must disclose his full financial condition including his income and property. No filing fee shall be required for the filing of the petition.
      (b) A petition by a plaintiff shall also include a statement of the financial condition of the defendant including income and property, to the extent known to the plaintiff. The petition shall not be denied or delayed because of the defendant’s financial ability to pay the costs. The entry of an order relieving the plaintiff from costs of the action, in whole or in part, shall not relieve the defendant from any liability for payment of the costs of the action.
      (c) If the plaintiff has been relieved of the payment of all or part of the costs the court by local rule or special order may provide the procedure by which the defendant may be required to pay such costs. Such proceedings shall in no manner delay or interfere with the disposition of the plaintiffs action.

      . The Order directs that:
      .... petitioner herein, may proceed with her cause of action in divorce ... without the payment in advance of costs or fees except initial filing and service costs.
      In the event that petitioner ... is successful in obtaining a divorce ... all costs and fees initially borne by . .. the plaintiff are to be assessed against the defendant....

      . The facts of record are derived from the petition filed below and a hearing held in connection therewith.

      . At the hearing below Appellant testified to expenses amounting to $314 per month. In her brief Appellant explains this discrepancy on the basis of “monthly fluctuation in the amount of utilities used and other necessary purchases.” Brief for Appellant at 16. Accepting even the lesser of these two figures, which differ by only $16, we conclude Appellant is unable to afford the costs assessed by the lower court.

      . Insofar as this last factor is concerned, Appellant’s petition states that her husband was living in Ohio and that she believed him to be unemployed. Thus, even if the court below could properly consider Appellant’s failure to obtain support within three months of separation from her husband, the aforementioned factors would mitigate this failure.

      . It is significant to note that the trial court never concluded Appellant herself was able to afford the costs. Rather, the Court appears to be saying Appellant should wait for a divorce or the costs should be borne by third parties.


author: MONTGOMERY, Judge:

text:
    438 A.2d 989
    PETER J. SCHMITT CO., INC., Appellant, v. MASON’S STORES, INC., M. H. Fishman Co., Inc., and Tenth Street Building Corporation of Erie, Inc.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied March 31, 1982.

      Jonathon Alberstadt, Erie, for appellant.
    Donald E. Wright, Erie, for appellees.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   MONTGOMERY, Judge:

This appeal is from an order of the lower court denying the Plaintiff-Appellant’s petition for a preliminary injunction as well as a request for a declaratory judgment. The controversy involved the Appellant’s efforts to overcome restrictive covenants set forth in certain lease agreements.

The property involved in this dispute is a shopping plaza, located on the southwest corner of the intersection of West Twelfth Street and Pittsburgh Avenue in Millcreek Township, Erie County, owned by the Appellee Tenth Street Building Corporation of Erie, Inc. (hereinafter referred to as “Tenth Street”). Tenth Street is the lessor in two leasing agreements containing the restrictive covenants which are challenged in this action. The property was initially leased by Tenth Street to Mason’s Stores, Inc. (hereinafter referred to as “Mason’s”), for the purpose of the operation of a general retail store selling discount merchandise to the public. The original lease between Mason’s and Tenth Street was entered into on January 12, 1959. Simultaneously, the Appellee M. H. Fishman Co., Inc. (hereinafter referred to as “Fishman”) entered into a written agreement with Tenth Street which guaranteed performance of all of the terms of the lease by Mason’s, which at all times material to this dispute has been a subsidiary of Fishman.

Subsequently, by agreement dated June 12, 1972, Mason’s re-leased part of the shopping plaza property back to its landlord, Tenth Street, for the purpose of allowing Tenth Street to erect a food store and a fabric store. Subsequently, Tenth Street leased the food store premises to Loblaw, Inc., (hereinafter referred to as “Loblaw”), which is not a party to this action. The Tenth Street-Loblaw lease, dated September 7,1972, was effective for a term of twenty years, commencing January 1, 1973, and contained the following relevant provisions:

ARTICLE V.
Lessee shall have the right to assign or transfer this Lease or to sublet the whole or any part of the demised premises for the whole or any part of the term hereof; provided, however, that it shall remain liable for the rental to be paid hereunder in the event of such assignment or transfer or subletting.
ARTICLE VI.
6.1 The Lessee may use the store-room forming part of the demised premises for any lawful purposes so long as such is not in direct competition with the existing tenants of premises shown on “Exhibit C”.

“Exhibit C”, referred to an “Article VI” quoted above, was attached to the lease, and indicated that Mason’s was the only existing tenant of the premises.

Before the expiration of its lease term, Loblaw vacated the premises, and assigned it rights therein to the Appellant, Peter J. Schmitt Co., Inc. (hereinafter referred to as “Schmitt”). On February 9, 1978, Schmitt and Tenth Street executed an Addendum to the September 7, 1972 Lease Agreement between Tenth Street and Loblaw, which Addendum allowed Schmitt to make modifications to the former Loblaw building as necessary to permit Schmitt to sublet the premises. Particularly significant to the instant dispute is the provision in the Addendum which stated:

“. . . That said sublessee’s and/or assignees’ use shall not conflict with the uses of existing tenants of Lessor, or be in violation with the lease conditions agreed upon between the landlord and existing tenants.”

Mason’s continued to be an “existing tenant” of the shopping center at the time the Addendum was agreed to by Schmitt and Tenth Street.

On some date thereafter, Schmitt agreed with a corporation known as Brand Name Products, Inc., (hereinafter referred to as “Brand Name”), to sublease the vacated Loblaw building. Brand Name intended to open a catalog warehouse store. The testimony offered by a witness before the lower court indicated that Brand Name would sell many products such as appliances, sporting goods, and furniture, which were within the retail product line of goods sold by Mason’s. Mason’s and Tenth Street objected to Schmitt’s plan to sublet the premises to Brand Name.

Schmitt filed the instant action for declaratory judgment and its petition for preliminary injunction in the lower court, seeking to have the court prohibit all of the Appellees from interfering with the subletting of the premises to Brand Name. More particularly, the Plaintiff-Appellant sought an injunction restraining Mason’s and Fishman from interference with the proposed sublease to Brand Name, a declaration that the proposed sublease did not violate the terms of Schmitt’s lease with Tenth Street, and a declaration that the clause prohibiting subleasing for a use in direct competition with existing tenants was illegal and unenforcible. As noted earlier, the lower court denied all such requests.

On this appeal, the Appellant contends that the restrictive covenants set forth in the leasing agreements, referred to above, result in an unreasonable restraint of trade as they prohibit the Appellant from subletting space in the shopping center premises to a broad section of retail businesses. It is argued that the Court of Common Pleas erred by refusing to grant declaratory relief holding that the covenants in question were invalid. The Appellant further maintains that the lower court completely failed to reach the two issues of: (1) whether the covenants were illegal and unenforcible because they were in restraint of trade; and (2) whether the proposed sublease to Brand Name would violate the covenants, even assuming they were not illegal and void. The latter argument is not specifically renewed before our Court.

We have examined the opinion of the lower court and are constrained to agree with the Appellant’s contention that these two significant issues were never reached by the lower court. In its opinion, after setting forth the relevant factual background, the lower court stated: “The dispositive issue to be resolved in this controversy is whether Mason’s and Fishman are third party beneficiaries to the contract of lease (sic) between Tenth Street and Schmitt and between Tenth Street and Loblaw (Schmitt’s predecessor).” The court went on to analyze the issue of whether or not Mason’s and Fishman were third party beneficiaries of the lease clauses in question, and concluded that the two Appellees were in such a status. Finally, the court declared that the intent of the restrictive provisions was to protect Mason’s from direct competition inside the shopping center, and denied the Appellant’s requests for relief.

It is evident that we must remand this case to the lower court for an analysis of the specific issues raised, and potentially for making specific findings of fact based upon all of the evidence presented. It would not be appropriate for our Court to resolve such issues for the first time on an appeal, when they were clearly raised before the lower court. Further, it would clearly be improper for us to make findings of fact upon testimony and other evidence which was presented to the lower court.

The lower court must first address the question of whether the restrictive covenants are void and unenforeible because they violate the federal law cited by the Appellant. Coincidentally, the court must address the question of whether that federal law is applicable in the instant dispute. If the lower court finds that the clauses are void and unenforeible, it would appear that at least some aspects of the Appellant’s requests for relief are meritorious. On the other hand, if the lower court’s analysis of such questions is not favorable to the Appellant, and it is concluded that the covenants are not illegal and unenforeible, the court must next address the issue of whether the proposed sublease to Brand Name would operate as a violation of these contract provisions. Such an analysis will necessarily involve the determination of whether the evidence presented at trial demonstrated that Brand Name’s tenancy would result in “direct competition with” or would “conflict with the uses of” Mason’s. If the lower court determines that the proposed sublease would not violate the covenants, it must then address the question of what type or types of relief, including damages, it may grant. Finally, it should be clear that our remand may not be construed to imply that we believe relief should have been granted to the Plaintiff-Appellant in this case. The remand is ordered merely to allow the lower court to pass upon the issues and evidence which it has not heretofore addressed.

The order of the lower court is vacated and this case is remanded to the lower court for further proceedings consistent with this Opinion. Jurisdiction is not retained.

      . Tenth Street has not filed a brief, appeared for oral argument, or taken any other active role in this appeal.

      . In that regard the Appellant alleged in its Complaint that the restrictive covenants were violative of 15 U.S.C. § 1.

      . On this appeal, the Appellant has not argued that the proposed sublease would not violate the restrictive covenants. Rather, it contends that this Court should construe such contract clauses to hold that as a matter of law, they have only a limited scope, permitting a sublease despite the fact that the proposed subtenant may sell some of the same products as are sold by Mason’s. It is not clear whether such contentions were raised in the lower court.

      . Of course, the language quoted is taken from the two restrictive covenants, which are set forth earlier in this Opinion.

      . It does not appear from the record before our Court that any of the Appellees raised procedural claims contesting the right of the Appellant to any of the types of relief sought. The Appellees defended on the substantive basis that the clauses were not unlawful or otherwise unenforcible.


author: HOFFMAN, Judge:

text:
    438 A.2d 992
    Yvonne P. VAN BRAKLE, Appellant, v. Harry LANAUZE.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Dec. 18, 1981.

      Frank R. Fleming, Pittsburgh, for appellant.
    John L. Bailey, Pittsburgh, for appellee.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in striking her confessed judgment. We agree and, accordingly, reverse the order of the court below and reinstate the judgment.

On January 8,1971, the parties, who were married in 1948, executed a property settlement agreement which required that following their divorce appellee should pay $1,000 support per month to appellant provided she did not remarry. The agreement also contained a clause enabling appellant, upon appellee’s default, to accelerate his obligation and confess judgment against him. Because appellee failed to make his August, 1979 payment, appellant confessed judgment against him in the amount of $69,000. Appellee promptly filed a petition to strike or open the judgment alleging that he was not obliged to pay support. The court below granted his petition to strike the judgment. This appeal followed.

Appellant contends that the lower court erred in striking her confessed judgment. We agree. “A motion to strike is only proper when the defect in the original judgment appears on the face of the record. Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976).” De Feo v. Mac Intyre, 265 Pa.Superior Ct. 95, 97, 401 A.2d 818, 819 (1979). “In search of such a defect, a court will only look to the record as it existed when the judgment was entered. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969).” Conti v. Shapiro, Eisenstat, Capizola, Lisitski & Gabage, PA, 293 Pa.Superior Ct. 301, 305, n.*, 439 A.2d 122, 124 n.* (1981). “The motion to strike off a judgment entered by confession necessarily has to do with the regularity of the record and could not be based on the equities of the situation.” Century Credit Co. v. Jones, 196 Pa.Superior Ct. 210, 214, 173 A.2d 768, 771 (1961). “If the record is self-sustaining the judgment will not be stricken. Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977).” Van Arkel & Moss Properties, Inc. v. Kendor, Ltd., 276 Pa.Superior Ct. 547, 551, 419 A.2d 593, 595 (1980). Appellee failed to allege and introduced no evidence of any defect appearing on the face of the record. Accordingly the lower court erred in striking appellant’s confessed judgment.

Even if we were to view the lower court’s order as one opening the judgment, it is nevertheless clear that appellee is not entitled to that relief. In Bell Federal Savings & Loan Association of Bellevue v. Laura Lanes, Inc., 291 Pa.Superior Ct. 395, 398, 435 A.2d 1285, 1286-87 (1981), we stated:

To open a confessed judgment, a party must act promptly, allege a meritorious defense, and present sufficient evidence of that defense to require submission of the issues to a jury. First National Bank of Pennsylvania v. Cole, 291 Pa.Super. 391, 393, 435 A.2d 1283, 1284 (1981); Fidelity Bank v. Act of America, Inc., 258 Pa.Super. 261, 392 A.2d 784 (1978); Pa.R.Civ.P. 2959. “[Ejquitable considerations are generally no longer relevant” unless related to a particular defense asserted. Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977). The petitioning party has the burden of producing sufficient evidence to substantiate its alleged defenses. See Pa.R.Civ.P. 2959(e); America Corp. v. Cascerceri, 255 Pa.Super. 574, 580 n.6, 389 A.2d 126, 129 n.6 (1978); Instapak Corp. v. S. Weis brod Lamp & Shade Co., 248 Pa.Super. 176, 181, 374 A.2d 1376, 1381 (1977). The defenses must be “valid.” Kardos v. Morris, supra, 470 Pa. at 341, 368 A.2d at 660; Fidelity Bank v. Act of America, Inc., supra, 258 Pa.Super. at 264, 392 A.2d at 785; First Pennsylvania Bank N. A. v. Weber, 240 Pa.Super. 593, 603, 360 A.2d 715, 721 (1976).

Appellee alleged as his defense that his support obligation terminated upon appellant’s common law marriage. “[S]ince our courts have regarded common law marriage as a fruitful source of perjury and fraud to be tolerated and not encouraged, . . . the law imposes a heavy burden on the one who grounds his or her claim on an allegation of common law marriage.” Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171 (1980) (citations omitted).

It is settled that marriage is a civil contract and does not require any particular form of solemnization before an officer of a church or of the state.... The “black letter” rule is often stated that a nonceremonial marriage comes into existence by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife. . . . Cohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage had occurred.

Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Superior Ct. 541, 544, 345 A.2d 914, 915 (1975). See generally A. Freedman & M. Freedman, Law of Marriage and Divorce in Pennsylvania, §§ 57-62 (1957); A. Momjian & N. Perlberger, Pennsylvania Family Law, §§ 1.5.1-1.5.6(a) (1978). To raise this “rebuttable presumption” of common law marriage, one must establish “constant, as distinguished from an irregular or inconsistent cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general.” Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). See also Estate of Gavula, supra, 490 Pa. at 540 n.7, 417 A.2d at 171 n.7; Leroy Roofing Co. v. Workmen’s Compensation Appeal Board, 15 Pa.Commonwealth Ct. 396, 398, 327 A.2d 876, 878 (1974). Although the record adequately establishes cohabitation, it is totally devoid of any competent evidence of reputation. Because appellee neither established appellant’s alleged common law marriage by evidence of verba di praesenti nor even by raising the presumption through evidence of cohabitation and reputation, he has not presented sufficient evidence of a meritorious defense. Accordingly, the lower court could not have opened the confessed judgment.

Order reversed and judgment reinstated.

POPOVICH, J., dissents.

      . Contrary to appellant’s assertion, the lower court did not sua sponte strike the confessed judgment. Appellant petitioned both to open or strike the judgment. (R. 9a.)

      . “[A]n appellate court [may] overlook improper nomenclature” when reviewing petitions to strike or open judgment. De Feo v. Mac Intyre, supra, at 97, 401 A.2d at 819. When reviewing the record presented to the lower court and its opinion granting appellee’s petition, it is clear that the lower court was applying the criteria for opening rather than that for striking a judgment. See, e. g., Baederwood Shopping Center, Inc. v. St. George & Co., 262 Pa.Superior Ct. 55, 59, 396 A.2d 642, 644 (1978) (contrasting criteria).

      . Appellee’s answer to appellant’s complaint raised two other defenses which the lower court held to be meritorious. Because appellee’s petition to strike or open incorporated that answer by reference, those issues were properly before the court below. However, neither of those purported defenses—appellant’s unmarried cohabitation and the supposed public policy espoused by section 507 of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 507, 23 P.S. § 507 (1981-82 Supp.)—are recognized as valid defenses to an action on an agreement to support a former wife until she shall remarry. Litwack v. Litwack, 289 Pa.Superior Ct. 405, 409, 433 A.2d 514, 515-16 (1981). The third alleged justification noted by the court below (apparently some theory of contractual modification) has been waived by appellee’s failure to raise it in his petition to strike or open. Pa.R.Civ.P. 2959(c); First National Bank of Pennsylvania v. Cole, 291 Pa.Superior Ct. 391, 395 n.2, 435 A.2d 1283, 1285 n.2 (1981). Wolgin v. Mickman, 233 Pa.Superior Ct. 218, 225 n.10, 335 A.2d 824, 827 n.10 (1975).


author: VAN der VOORT, Judge:

text:
    438 A.2d 995
    COMMONWEALTH of Pennsylvania, v. Allen T. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1980.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied June 28, 1982.

      Louis Lipschitz, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was indicted at Nos. 118 (assault and battery, aggravated assault and battery and assault with intent to murder), 119 (aggravated robbery), and 120 (burglary). A suppression hearing was conducted, after which the court denied the motion to suppress. Defendant was tried and convicted of all the above charges. Post-trial motions were made orally, argued and denied. Appellant was sentenced to a total term of thirteen and one-half (I3V2) to forty-seven (47) years in prison. This court affirmed the judgments of sentence at Commonwealth v. Miller, 243 Pa.Superior Ct. 582, 371 A.2d 234 (1976) (per curiam). The Supreme Court denied allowance to appeal. Appellant had been represented by the Defenders Association throughout the above proceedings.

Subsequently, appellant filed a Post Conviction Hearing Act petition. New counsel was appointed to represent appellant. Following a hearing on appellant’s PCHA petition the court denied relief. An appeal was taken to this court. Such appeal was nonprossed but later reinstated. Appellant obtained new counsel not associated with the Defenders Association for this appeal.

Appellant raises five questions on this appeal, all of which attack the effectiveness of all previous counsel. None of these issues were raised below. We have rearranged the order of these contentions, reserving appellant’s first contention for consideration last.

Appellant’s second and third contention both pertain to the pre-trial line-up identification; these will be considered jointly. He first argues that post conviction hearing counsel was ineffective in failing to argue that previous counsel was ineffective in failing to preserve the contention that the line-up was a product of unnecessary delay between arrest and arraignment. Next he similarly argues counsel’s effectiveness for not challenging the line-up as being the tainted fruit of an illegal arrest.

Before inquiring into these claims we must determine whether the claim which counsel is charged with failing to pursue was a frivolous one. See, Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977). “Only if the claim which was foregone was of arguable merit must we inquire into counsel’s reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977)”. Commonwealth v. Gasper, 262 Pa.Superior Ct. 141, 396 A.2d 685 (1978).

Appellant was arrested at 4:00 p. m. on April 18, 1973. A line-up including appellant was conducted at 5:50 p. m. viewed by Hilda Snead, who tentatively identified appellant as the gunman. A second line-up was held on April 19,1973 at 12:15 p. m.; a Mr. Rosenberg and a Mr. Lazier identified the appellant as the actor who had shot them. Both of these witnesses had been hospitalized from the time of the shooting until shortly before the line-ups. Appellant was arraigned sometime thereafter.

A. Appellant specifically argues that previous counsel was ineffective in not questioning the above delayed arraignment which he argues invalidates any pre-trial as well as in trial identification of appellant. He contends that under Rule 116 Pa.R.Crim.P. (now renumbered Rule 122) the identifications should have been suppressed. Rule 116 (now Rule 122) reads:

When a defendant has been arrested, with a warrant, within the county where the warrant of arrest was issued, where the complaint charges a court case, he shall be taken without unnecessary delay before the issuing authority whose name appears upon the warrant for preliminary arraignment.

The leading case in this area is Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). In Futch, the Supreme Court found a 14 hour delay to be an “unnecessary delay.” The court found that Futch had refused to sign a waiver-of-counsel form for the line-up. It also determined that the waiver was misleading and found the line-up was suggestive. Accordingly, the court found the identification evidence resulting from such a line-up should have been excluded. However, the court “held that failure to comply with Rule 118 [116] does not ipso facto render inadmissible evidence obtained by the police during the ‘unnecessary delay’ and that it is incumbent upon defendant to show some prejudice from the delay.” Id., 447 Pa. at 393, 290 A.2d 417. The court, 447 Pa. at page 392, 290 A.2d 417, quoted Judge, now Chief Justice Burger:

“Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same [sic] limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested.” Adams v. United States, 399 F.2d 574, 579 (D.C.Cir.1968) (concurring opinion).

Quoted also in Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975), and Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 401 A.2d 1148 (1979).

Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419 (1974) reviewing the cases preceding it “delineated a three-part test to be used when inquiring into an alleged violation of Rule 118 [116]. The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay.” (Cites deleted). We find that the delay was not “unnecessary.” The 19V2 hour or more delay was precipitated by the victims’ need to recuperate from their wounds. The other identifying witness, Snead, was tentative in her identification of Miller. As the Commonwealth contends the police needed a better identification in order to be reasonably certain that appellant was the culprit.

There are necessary delays in every criminal case during which administrative details like booking, fingerprinting and some preliminary investigation concerning the nature of the crime and the arrested persons connection thereto must be explored. Adams v. United States, 130 U.S.App. D.C. 203, 399 F.2d 574, 579 (1968) (Concurring Opinion, Burger, J.). This is the type of necessary delay involved in the case before us. While appellant was going through the administrative procedures on [one set of] charges, the police began receiving new information and evidence on the similarities of the crime to that of the [other] incidents. It was during this time that appellant was held.
Case law supports this finding. In Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975), the delay between the time of arrest and arraignment was deemed a necessary step by police while they checked on defendant’s history. In Commonwealth v. Terry, 457 Pa. 185, 321 A.2d 654 (1974), the delay was also held necessary, while police compiled lists of names of accomplices along with other administrative details.

Commonwealth v. Rose, 265 Pa.Superior Ct. 159, 167, 401 A.2d 1148 (1979). But cf. Commonwealth v. Eaddy, 472 Pa. 409, 372 A.2d 759 (1977) (where court found no justification had been established for the delay, and concluded it was unnecessary.).

We also, fail to see how the identification was reasonably related to the delay. While appellant argues that he was held without being arraigned until he could be more definitely identified we fail to see how the identification was a result of the delay.

In the present case, appellant does not attack the lineup proceedings [for which he waived his right to have counsel present. Nor does he challenge such waiver.] Nor does he claim that the lineup was of a suggestive nature. His only argument is that the identifications made at the lineup should not have been admitted at trial because the lineup was held during an unnecessary delay prior to his preliminary arraignment. Unlike the appellant in Futch, had the appellant in this case been taken before a magistrate prior to the lineup, he would have found himself in no better position. We cannot say that appellant was prejudiced by the delay.

Commonwealth v. Corbett, 228 Pa.Superior Ct. 292, 323 A.2d 836 (1974). In this respect the current appeal differs from such cases as Commonwealth v. Segers, 479 Pa. 108, 387 A.2d 858 (1978) (over 15 hour delay between arrest and inculpatory statement), Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977) (18 hour delay between arrest and statement) and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (confession obtained 8 hours after arrest) where the court found the incriminating statements resulted from the delay. And as previously noted this case differs from Futch in that appellant waived his right to counsel where Futch clearly refused to waive such right and where the line-up was found to be suggestive. Here appellant does not claim the line-up was suggestive and from our review of the suppression hearing we find that it was not suggestive.

B. We next direct our attention to appellant’s claim that prior counsel was ineffective in failing to pursue a challenge to the arrest. He argues that the Commonwealth was without probable cause to arrest him and therefore the subsequent lineup identifications were tainted by the illegal arrest.

. . . Probable cause has been defined as those facts and circumstances available at the time of the arrest which would justify a reasonably prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975); Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974); Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968). The test is not one of certainties but rather one of probabilities dealing with the considerations of everyday life. It is not equivalent to the “proof beyond a reasonable doubt” standard applied at trial. See Commonwealth v. Jones, supra; Commonwealth v. Williams, 235 Pa. Super. 347, 341 A.2d 201 (1975), and cases cited supra.

Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677 (1976).

Miss Snead, an eyewitness to the events described the assailant, shortly after the shooting as “a Negro man; I said he was kind of light-brown skinned, about 20 or 21 years old, with a thin mustache and a short bushy haircut”. (N.T. Suppression p. 11). This witness was first shown seven or eight black and white photographs; she did not identify the actor from this array. She was then shown color slides; “quite a few, and [appellant’s picture] was the only one that I said looked the most like this person that I remember seeing in the store.” (N.T. Suppression p. 12). Mr. Rosenberg, one of the victims described the actor as “a Negro male, approximately five-foot six inches, 21 years old or so ... a small mustache and short kinky hair ... he was thin,” (N.T. Suppression p. 32). Mr. Lazier the other shooting victim described the assailant as “five-feet-six inches . . . has a slight bush ... a little thin mustache, tan-colored skin.” (N.T. Suppression p. 47).

Appellant contends that probable cause to arrest was lacking because the [identification by Snead was not even tentative] and because the other information possessed by the officer was uncorroborated. However, it is established in this Commonwealth that tentative identifications are sufficient even to sustain a conviction. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). Certainly, no more is required for an arrest. Furthermore, it has never been the law of the Commonwealth that a victim’s statements must be corroborated before an arrest can be made.

Commonwealth v. Wiggins, 239 Pa.Superior Ct. 256, 261, 361 A.2d 750 (1976).

Appellant’s physical appearance matched the descriptions given and according to Miss Snead he looked most like the person whom she saw. In the circumstances of this case we find that a reasonably prudent man would be justified in believing appellant was the probable perpetrator of the crime.

C. Appellant argues counsel was ineffective in failing to protect appellant’s right to allocution at the time of sentencing. Rule 1405(a) Pa.R.Crim.P. reads:

At the time of sentencing, the judge shall:
(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;

Prior to the imposition of sentence, defense counsel argued on behalf of appellant. Appellant’s mother and father were also permitted to speak. Appellant was afforded an opportunity to address the court immediately after sentencing. He argued, as his parents had, that he had not committed the crimes for which he stood convicted. (N.T. Sentencing p. 20).

While technically appellant’s claim may be correct, we find no relief is necessitated. Appellant was permitted to speak, though after actual sentencing, at which time he declared his innocence. In Commonwealth v. Lowry, 260 Pa.Superior Ct. 454, 394 A.2d 1015 (1978), this court held that the defendant’s denial of allocution had been remedied at his Post Conviction Hearing where the court asked what he would have said at sentencing. The hearing court found that what the defendant desired to say would not have altered the sentence. The present case is much clearer than Lowry, here the trial judge allowed appellant to speak within minutes of the sentencing at which time he claimed he was not guilty. Also, we believe Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980), reversing this court at 251 Pa. Superior Ct. 299, 380 A.2d 789 (1977) is distinguishable from the present case. There the Supreme Court remanded for resentencing on the basis of a very unusual set of circumstances. The trial judge clearly indicated his personal animosity for the defendant (he refused to recuse himself); he imposed sentence based entirely on a “sentencing council’s” determination; and he explicitly denied the defendant an opportunity to address the court, though he did later allow the defendant to speak, though sentence had already been determined, though not imposed. The court remanded for resentencing before another judge. We do not find that a similar result is required here.

As appellant was not effectively denied his right to speak, counsel may not be held ineffective for failing to preserve such challenge.

D. Appellant contends that prior counsel was ineffective in failing to preserve the issue of the validity of his jury trial waiver. In particular he argues that the court failed to explain that the jurors would be selected from the community.

Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) listed the “essential ingredients” of a jury trial to include the requirement that “the jurors be chosen from members of the community (a jury of one’s peers) ...” Id., 454 Pa. at 373, 312 A.2d 597. However, Williams has been held not to be applicable retroactively. Commonwealth v. Lockhart, 227 Pa.Superior Ct. 503, 322 A.2d 707 (1974). See also Commonwealth v. Dyson, 249 Pa.Superior Ct. 503, 378 A.2d 408 (1977) and Commonwealth v. Grant, 235 Pa.Superior Ct. 357, 341 A.2d 511 (1975). Appellant’s case was tried prior to the decision in Williams. Accordingly, his preWilliams jury trial waiver will be held invalid only if it was entered involuntarily or unknowingly. Except for the above claim appellant cites no other reason for voiding such waiver. Nor, after reviewing the record of the colloquys do we find any other indication that the waiver of a jury trial was anything but voluntarily and knowingly entered.

E. Appellant’s final allegation of error is that he was denied effective assistance of counsel by previous counsel’s failure to preserve the issue that he was not advised of his post-trial rights pursuant to Rule 1123, Pa.R.Crim.P. 1123 reads in pertinent part as follows:

(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the seven (7)-day period on the record voluntarily and understanding^ waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions.
(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.
Appellant contends that had the lower court advised him appropriately and had counsel proceeded accordingly, the aforementioned issues A, B, C, and D would have been raised both in post-verdict motions and on direct appeal. However, as we have reviewed the substance of appellant’s claims, without ascertaining whether they were waived, appellant has not been prejudiced by the failure to raise such issues on direct appeal. He therefore is entitled to no further relief. As the Supreme Court held in Commonwealth v. Velasquez, 488 Pa. 244, 246-47, 412 A.2d 489 (1980):
[AJppellant seeks as alternative relief a remand to the lower court for the filing and disposition of post-verdict motions. The basis offered for this request is the alleged failure of the trial judge to properly advise appellant under Pa.R.C.P. 1123(c). The issues that appellant urges were foreclosed during the original direct appeal, as a result of this alleged failure to properly explain Rule 1123(c), are the same issues raised in this collateral attack under the rubric of ineffective assistance. Since we have determined that these issues were not of arguable merit, Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979), appellant has not in any way been prejudiced by the fact that he was unable to pursue them on direct appeal. Thus, no purpose would be served by remanding the cause at this time.

Order affirmed.

      . He was also charged at No. 153, with carrying a firearm on public streets, of which he was acquitted.

      . Appellant did not raise in his prior appeal the issues he raises on this appeal.

      . In his PCHA petition appellant claimed that trial counsel was ineffective in indicating to the court that appellant had a prior record which foreclosed appellant from testifying on his own behalf and that the trial court improperly imposed upon him the burden of presenting an affirmative alibi defense.

      . Rule 118, [Now numbered Rule 130] establishes a similar requirement as to warrantless arrests.

      . The witness was shown “twenty or more” photographs the second time. (N.T. Suppression p. 15).

      . Subsequent to appellant’s trial (b) was amended to allow for a ten (10) day period.


author: PER CURIAM: VAN der VOORT, Judge,

text:
    438 A.2d 1000
    Jack E. FISHER and Constance Fisher, Appellants, v. John R. FINDLAY and Helen Findlay, His wife.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Dec. 18, 1981.
    Warren D. Utermahlen, Milford, for appellants.
    Lucille Marsh, Scranton, for appellees.

      Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Appellants have filed their appeal from the lower court’s order refusing appellants’ motion to set aside judgment of compulsory non-suit. Because the order has not been reduced to judgment and docketed, on the basis of Pa.R.A.P. 301(c) the appeal is untimely. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Superior Ct. 402, 435 A.2d 1288 (1981).

Appeal quashed.

VAN der VOORT, J., filed a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

I respectfully dissent from the action of the majority which holds that the order refusing appellants’ motion to set aside judgment of compulsory nonsuit is not appealable because the order was not reduced to judgment and docketed. I would hold that the order of the court below refusing to take off the nonsuit is properly before this Court for review. See my concurring and dissenting opinion in Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Superior Ct. 402, 435 A.2d 1288 (1981).


author: PER CURIAM: MONTEMURO, Judge,

text:
    438 A.2d 1001
    Joseph FRIEDMAN and Frida Friedman, Appellants, v. Victor I. KASSER and Barbara Kasser and Leonard Feldman and Bernice Feldman.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed Dec. 18, 1981.

      Milton S. Lazaroff, Philadelphia, for appellants.
    Abraham C. Reich, Philadelphia, for appellees.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Because no final decree in equity was entered on the docket below we cannot reach the merits and, accordingly, quash this appeal. A lower court’s direction to enter a specified order, unaccompanied by actual entry of the specified order on the docket, is interlocutory and not appealable and must be reduced to judgment and docketed before an appeal can be taken. Pa.R.A.P. 301(c). See Coren v. DiDomenico, 291 Pa. Superior Ct. 331, 435 A.2d 1252 (1981). The order appealed from merely states that the decree nisi “shall be entered on praecipe.” No final decree was ever entered. Consequently, we must quash this appeal. Murray v. Abcon, Inc., 291 Pa. Superior Ct. 428, 435 A.2d 1301 (1981); Mercadante v. Ranieli, 271 Pa. Superior Ct. 565, 414 A.2d 397 (1979).

Appeal quashed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I dissent.

The litigants in this case have had a property-line dispute in our court system since August of 1978. There is at present a cloud on the titles of these properties which is now heading into its fourth year. The case was docketed into the Superior Court in December of 1980, was argued in May of 1981, and the present opinion will be published in November of 1981. By that schedule, the litigants can now expect to spend another year in this state of indecision in which neither can easily sell or improve the properties.

The decision to quash strikes me as particularly unjust in this instance, as the Order of the Lower Court upon which the appeal was taken is written in the imperative as follows:

“The decree nisi shall be entered on praecipe as the final decree.
The Prothonotary shall immediately give notice by ordinary mail to the attorneys of record of the entry of the final decree.”

Counsel reading such mandatory wording would justifiably suppose that judgment had been entered by Order of the Court, that the matter was completed by the time they received notice, and that an appeal was taken properly from a final decree of the lower court.

I am in full accord with the reasoning of Judge Spaeth in his recent dissent in the case of Coren v. DiDomenico, 291 Pa.Super. 331, at 335, 435 A.2d 1252 at 1254 (1981), where he states:

No doubt a praecipe and ensuing judgment make for a tidy docket. But tidiness should not become an end in itself. What an appellate court needs to know is what the lower court, not the clerk, did. It is the contents of the lower court’s order, not the presence or absence of a praecipe, that should control our jurisdiction. So long as the docket is tidy enough to disclose when the lower court’s order was filed and what it said, we can tell whether we have the power to hear the appeal.

Appeal in the instant matter was taken timely from date of a final order of the lower court duly entered on the docket. Neither party has raised any issue of a statute of limitations; indeed, both parties will be dismayed at further delay. Not only have the litigants expended time, money and emotional trauma on this issue, the court system has scheduled the matter, heard argument and reviewed the case. And now all the effort must be duplicated.

I cannot believe that a single productive purpose is being accomplished by quashing this case. I would recommend to counsel that they request accelerated re-listing for argument.

I would address the merits of the case, and therefore I dissent.


author: PER CURIAM:

text:
    438 A.2d 1003
    John LENGYEL and Helen Lengyel, his wife, Appellants, v. FRANK BLACK, JR., INC. John LENGYEL and Helen Lengyel, his wife, Appellants, v. FRICH CONSTRUCTION COMPANY.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed Dec. 18, 1981.

      John M. Golden, Monongahela, for appellants.
    Wray G. Zelt, III, Washington, for appellees.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   PER CURIAM:

On September 7, 1978, John Lengyel and Helen Lengyel, his wife, brought an action in trespass against the defendant, Frank Black, Jr., Inc. for blasting seeking $3,760.60 in damages. On March 16, 1979, plaintiff filed suit against the defendant, Frich Construction Company. At plaintiffs’ request, the cases were consolidated by Order of Court dated January 3, 1980. On February 15, 1980, an arbitration hearing was held. The Board of Arbitrators rendered judgment in favor of plaintiffs against defendant, Frich Construction Company in the amount of $2,653.15 and against plaintiffs in favor of defendant, Frank Black, Jr., Inc. On March 13, 1980, plaintiffs appealed from the award of the arbitrators to the Court of Common Pleas. A Motion to Quash Appeal was filed by each defendant alleging the' recognizance and surety filed by the plaintiffs was deficient and improper. On May 2, 1980, President Judge Sweet rendered an Opinion addressing the issues in this case.

After a careful review of the Opinion, this court concludes it did not constitute an order. Therefore, an appeal may not be taken from this Opinion.

As to the nature of the decision of the inferior court from which an appeal lies, the general rule is that, except as otherwise allowed by statute, an appeal lies only from a definitive action of the inferior court, such as a judgment, decree, or final order. Implicit in this statement of the rule is the proposition that ordinarily appeals lie only from judgments or decrees and that they do not lie from incidental rulings of the inferior court made during the course of the trial.... Appeals do not lie from a mere opinion of the inferior court, since even though the appellate court can infer from the opinion filed what was intended, it can neither affirm nor reverse a decree which has never been entered. [Footnotes and citations omitted] (emphasis added).

9 Standard Pennsylvania Practice 43. In Creighan v. City of Pittsburgh, 389 Pa. 569, 573, 132 A.2d 867, 870 (1957) the Supreme Court of Pennsylvania stated:

An appeal lies only from a definitive action of a lower court such as a judgment, a decree or a final order, unless an appeal is specifically allowed by statute: Coleman, Admr., et al. v. Huffman et al., 348 Pa. 580, 36 A.2d 724; Stadler, Admr. v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776; Sullivah v. Philadelphia, 378 Pa. 648, 107 A.2d 854; 9 Standard Penna. Practice § 20. [sic].

See also Pa.R.A.P. 301(b), 42 Pa.C.S.A.

For the reasons cited herein, the appeal of plaintiffs is quashed.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 7361 (1980).

      . It is noted by this court that the Per Curiam Order of the lower court en banc, dated July 15, 1980, is, in effect, a nullity as a court en banc may review only an order of judgment of the lower court and not an opinion.
      As no final order was ever issued by the lower court in this case, we cannot address the merits of Appellant’s appeal.


text:
    438 A.2d 1004
    Barbara JOHNSON, Appellant, v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed Dec. 18, 1981.
    Jon L. Friedman, Pittsburgh, for appellant.
    Paul A. Robb, Pittsburgh, for appellee.
    Before BECK, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

Appellant filed a Complaint containing two counts in trespass and a count in assumpsit against her former employer alleging wrongful discharge, intentional infliction of emotional distress and breach of the employment compensation agreement. The employer, appellee, filed Preliminary Objections to each count of the Complaint.

The lower court sustained the Objections to both counts in trespass and dismissed those counts with prejudice. The Objections to the assumpsit count were dismissed and the employer was granted twenty days in which to file an appropriate responsive pleading. This appeal is brought from the lower court’s order sustaining the Objections to the trespass counts.

The order did not dispose of the entire case or otherwise end the litigation. The trial court’s order is clearly interlocutory. On April 29, 1981, this appeal was quashed. On October 30,1981 the appeal was reinstated without prejudice to the parties’ right to brief and argue the appealability of the order at time of argument on the merits.

We now, following oral argument, quash the appeal and remand to the lower court for further proceedings consistent with this opinion. Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super. 511, 430 A.2d 1007 (1981) and cases therein cited.