author: POPOVICH, Judge:

text:
    522 A.2d 562
    B. LIPSITZ COMPANY, a Corporation v. Roy WALKER, an Individual, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1986.
    Filed Jan. 14, 1987.
    Reargument Denied March 20, 1987.

      Conrad A. Johnson, Pittsburgh, for appellant.
    James P. McKenna, Jr., Pittsburgh, for appellee.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County denying a petition to strike and/or. open a confessed judgment entered against the defendant/appellant, Roy Walker. We reverse in part and affirm in part.

On December 30, 1983, the defendant executed a non-negotiable judgment note in the amount of $80,000, payable on demand, in favor of Pittsburgh National Bank. The note contained a confession of judgment clause. On June 25, 1985, the note was assigned by the bank, for value received, to B. Lipsitz Company, the plaintiff/appellee. The next day the plaintiff confessed judgment against the defendant (note plus interest) for $88,948.47.

On July 26, the defendant filed a petition seeking to open judgment, a rule to show cause and a stay of execution. In support of the petition, the defendant averred that he signed the December 30 note merely as an “accommodation” for his then counsel, Herman Lipsitz — president/joint owner with his wife of B. Lipsitz Company, upon being advised by him that B. Lipsitz Company and the plaintiff were experiencing financial difficulty. He also alleged that he never received any portion of the $80,000 recited in the note.

The court below stayed all execution proceedings, made the rule returnable within twenty days and ordered the parties to proceed in accordance with Pa.R.Civ.P. 209 by order of even date.

On August 21, an answer to the petition to open was filed by the plaintiff denying that it had represented to the defendant (through Herman Lipsitz) that it was experiencing financial difficulty, or that the note was executed simply as an accommodation or favor to it without consideration. On the contrary, the plaintiff alleged that the defendant was indebted to it for $108,648.17 in merchandise (cigarettes and book matches) received but never paid for, and, thus, the requested demand for payment of the debt by the plaintiff was made. The defendant, supposedly, obtained a loan from Pittsburgh National for $80,000 for partial payment on this debt at the request of the plaintiff. When the defendant failed to make payments on principal and interest, the plaintiff was forced to pay back the loan. This was so, according to Herman Lipsitz, because B. Lipsitz Company was the “guarantor” on the note. In turn, after payment of the note was satisfied, Pittsburgh National assigned the judgment note to the plaintiff. Further, the plaintiff specifically denied that no consideration existed in the transaction producing the judgment note.

In the new matter portion of the reply, the plaintiff argued that the defendant’s failure to assert equities and a valid defense warranted a denial of his petition to open judgment.

In a response to the rule to show cause order, the defendant contended that he “recently discovered another meritorious defense to the Confession of Judgment”, i.e., Pittsburgh National’s earlier confession of judgment (of May 6, 1985) on the subject note for $10,000 restricted the assignee (plaintiff) of the same note to the receipt of ‘$10,000 and not $80,000.

The defendant sought leave to amend his earlier petition to open and proceed with depositions and other discovery matter prior to scheduling an argument date. The court agreed and entered an order on September 24 granting the defendant “leave to amend his Petition and ... to proceed with depositions in accordance with Rule 209.”

On November 20, the defendant filed an amended petition alleging, for the first time, that: (1) the plaintiff “fraudulently induced” him to execute the $80,000 note to benefit “Herman Lipsitz and/or B. Lipsitz Company”; (2) Pittsburgh National had already filed a confession of judgment against him (at GD 85-8258) on the same non-negotiable judgment note which the plaintiff based its confession of judgment; and (3) the plaintiffs principal (Herman Lipsitz) fraudulently induced the defendant to execute the note in question in violation of Disciplinary Rule 5-104(A). Lastly, as was argued in the earlier petition, the defendant repeated the assertion that (Attorney) Herman Lipsitz represented that he (Lipsitz) and/or B. Lipsitz Company were experiencing financial difficulty.

A brief in support of the amended petition was filed recounting testimony given during the deposition of Herman Lipsitz and Joel A. Murphy (Assistant Manager in charge of loans at Pittsburgh National), each having been taken on October 8, 1985. In the “Discussion” portion of the brief, the defendant pointed to: 1) the satisfaction of the note prior to assignment causing the assignee (plaintiff) to take subject to all defenses available against the original assignor (bank); 2) the lack of consideration for the note; 3) the existence of fraud by the plaintiff in the securement of the note; and 4) a violation by the plaintiff of Disciplinary Rule 5-104(A), counseling against an attorney and his client becoming intertwined in a venture without there first being full disclosure to and consent given by the client.

The plaintiff likewise filed a brief in support of its contention that the defendant was indebted to the plaintiff.

In an effort to extinguish a portion of the amount owed,, the plaintiff argued how it arranged for Pittsburgh National to loan the defendant $80,000, which was secured by a non-negotiable judgment note guaranteed by the plaintiff and credited to the defendant’s outstanding account with the plaintiff. Also, mention was made of the disputed difference between an invoice listing $99,699.25 as owed the plaintiff and the $80,000 the defendant purportedly admitted owing. This matter was resolved in the plaintiffs favor when it sued in arbitration, at No. 5768 of 1985.

Based on the pleadings, depositions, briefs and oral arguments presented in the case, the court below, by order dated November 25, 1985, denied the defendant’s petition to strike and/or open judgment and discharged the July 26, 1985 order staying execution. Thereafter, a motion for post-argument relief, with a reply thereto submitted to the court, was filed and denied. This appeal followed.

Before addressing the issues raised for our consideration, we need to set forth the standards utilized in assessing the denial of a petition to strike and/or open a judgment. The former places upon us a duty to inquire whether an irregularity appearing on the face of the instrument in question existed sufficient to warrant the judgment struck (see Bethlehem Steel Corp. v. Tri-State Industries, 290 Pa.Super. 461, 434 A.2d 1236 (1981)), whereas the latter is an appeal to the equitable powers of the court and its disposition of the petition will not be disturbed on appeal, unless a clear abuse of discretion is shown. See Funds For Business Growth, Inc. v. Woodland Marble and Tile Co., 443 Pa. 281, 278 A.2d 922 (1971). As noted in First Seneca Bank and Trust Co. v. Laurel Mountain Development Corp., 324 Pa.Super. 352, 471 A.2d 875 (1984), the precepts controlling the opening of a confession of judgment are clearly established, i.e., prompt action must be taken by the judgment debtor, allegation must be made to a meritorious defense and evidence of a defense must be presented such that the issues are for a jury to decide.

The first issue to be dealt with concerns Pittsburgh National’s exercise of its right to confess judgment supposedly impairing the subsequent execution on the same note by the plaintiff, under the warrant of attorney clause, after the assignment of the note.

The earlier execution, according to the defendant, exhausted the ability of the assignee to execute on the same note. We agree in part, and do so in a factual scenario which has heretofore not been addressed by an appellate court.

To start with, it is settled law in this Commonwealth that a judgment may be confessed but once for the same debt. This precept is exemplified in Scott Factors, Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967), wherein an initial judgment of confession entered on a warrant of attorney by a representative of the plaintiff, who was not an attorney of record, constituted an exhaustion of the power to confess and rendered a subsequent judgment on the same instrument to rectify the error ineffectual.

Our Supreme Court, in reversing the lower court for refusing to strike the second judgment, wrote:

In Pennsylvania, we have long recognized and permitted the entry of a judgment by confession upon the authority of a warrant of attorney contained in an agreement between the parties. However, fully cognizant of the possibilities of abuse which might arise from the recognition of the right to enter such judgments by confession, our courts have been strict in passing upon the validity of judgments so entered. The entry of a valid judgment by confession can only be accomplished if such entry is. accomplished in rigid adherence to the provisions of the warrant of attorney; otherwise, such judgment will be stricken. The determination of the validity of such judgments rests upon a strict construction of the language of the warrant of attorney and any doubt as to the validity of such judgments must be resolved against the party entering the judgments.
The warrant constitutes a grant of authority by one contracting party to the other, upon the happening of a certain event, i.e., a breach of the terms of the agreement wherein the warrant is contained, to enter that which results ordinarily only after a trial of the issue between the parties, i.e., a judgment. Such judgment when entered carries with it the same legal consequences as any judgment of a court. Not only must the given authority be exercised in the exact manner agreed upon between the parties but also the authority, once exercised, ceases to exist.
Under our case law, it is clear beyond question that, once a judgment has been entered under a warrant of attorney, the authority to use the warrant vanishes and the warrant cannot again be exercised. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted____ [T]his court said: ‘When the first judgment was entered pro confesso, the power of attorney was exhausted and the warrant became func-tus officio. After the entry of the first judgment, neither the court, the prothonotary, nor the attorney who confessed the judgment, had power to do any act which would have the effect of giving vitality to an exhausted power. This is a settled rule of law in Pennsylvania and has been recognized by our courts for a qentury.’ ...
In the case at bar, upon the entry of the first judgment, even though such entry was not in accord with the provisions of the warrant of attorney, the warrant of attorney ceased to have vitality upon which to enter the second judgment and the court below should have stricken off the judgment.

425 Pa. at 292-94, 228 A.2d at 888-89 (Citations omitted).

Instantly, the note afforded the bank or any holder thereof the power, without limitation as to exercise, to confess judgment until the debt was paid in full. Our Supreme Court construed a similar warrant of attorney in American Bowling Club, Inc. v. Kanefsky, 370 Pa. 136, 87 A.2d 646 (1952), which availed the lessor the authority to confess judgment as often as any rent was due; it read: “Such authority shall not be exhausted by one exercise thereof....” Id., 370 Pa. at 136, 87 A.2d at 646. The Court in Kanefsky held that such a clause could not give authority to enter more than one judgment for the same debt.

In Continental Bank v. Tuteur, 303 Pa.Super. 489, 450 A.2d 32 (1982), a panel of this Court was confronted with the effect of a clause in a warrant of attorney which allowed for multiple exercises of one’s right to confess judgment without exhausting this remedial, legal measure.

We reversed the trial court’s conclusion that an earlier exercise of the right to confess judgment did not preclude a subsequent utilization of the warrant because of the non-exhaustion clause. In doing so, we observed that Continental Bank had entered judgment twice for the same debt and this it could not do. However, we did write in dictum that:

We do not, of course, decide that such a confession of judgment clause could not be used to collect discrete parts of a debt as they come due. Here, Continental Bank did not use the clause to confess judgment for parts of a debt but rather to confess judgment for the entire debt twice.

303 Pa.Super. at 496 n. 2, 450 A.2d at 35 n. 2. See also Citizens National Bank of Evans City v. Rose Hill Cemetery Association of Butler, 218 Pa.Super. 366, 368 n. 2, 281 A.2d 73, 74 n. 2 (1971), wherein we observed that only a “... full exercise of a warrant of attorney in an instrument exhausts the warrant____” (Emphasis added)

The corollary we draw from the aforesaid is that severable portions of a debt can be sought to be collected with the use of a single warrant of attorney as each become due; provided, of course, the instrument is not used to collect the same portion of the debt already confessed. See Pa.R.Civ.P. 2953.

In applying this concept of severability to preserving one’s right to confessing judgment at bar, we do so in the form of a hypothetical, to-wit: Had the bank been the party-plaintiff seeking to recoup the monies claimed owed under the present confession of judgment, given the previous judgment for $10,000 confessed by the bank, would the teachings of Scott and Kanefsky cause us to strike the second judgment at least with respect to that portion of the judgment attempting to collect what it had earlier sought to secure by confession? We have no reservations in stating that the bank would have been estopped from seeking to obtain payment twice for the $10,000 earlier confessed.

The plaintiff, being the assignee of the bank, had rights equal to (but no greater than) the assignor. See Etter v. Industrial Valley Bank and Trust Co., 356 Pa.Super. 502, 515 A.2d 6 (1986). Consequently, the bank’s inability to execute on the note with regard to at least $10,000, because of the prior May 6 judgment against the defendant, impairs the plaintiff (assignee) as well. Tuteur, supra. In other words, of the $80,000 sought by the plaintiff, $10,000 was confessed by its assignor and the law does not permit a single warrant of attorney to be utilized to recoup a sum previously confessed but not recovered. Scott, supra; Ka-nefsky, supra; Harr v. Furman, 346 Pa. 138, 29 A.2d 527 (1943); Tuteur, supra.

However, the court below and this Court on review will only look at what was in the record when the judgment was entered in search for defects. See Linett v. Linett, 434 Pa. 441, 445-46, 254 A.2d 7, 10 (1969); Langman v. Metropolitan Acceptance Corp., 318 Pa.Super. 381, 384 n. 1, 465 A.2d 5, 7 n. 1 (1983); Conti v. Shapiro, Eisenstat, etc., 293 Pa.Super. 301, 305 n. *, 439 A.2d 122, 124 n. * (1981). Instantly, that translates into a determination that the defect (repeat entry of judgments on the same note) was not evident from the face of the original judgment note. Only with the submission of the defendant’s reply to the rule to show cause at point 5, which followed the defendant’s petition to open and the plaintiff’s answer thereto, do we learn that Pittsburgh National allegedly had filed a complaint to confess judgment on the same note assigned to the plaintiff. See Pa.R.Civ.P. 2951(b) & (c)(3), (4).

Consequently, inasmuch as the defect was not apparent on the face of the record, we cannot state that the court below erred in not striking judgment. Rather, the existence of the prior judgment was a defense properly raised by the defendant, as was permitted by order of court, in his amended petition to open judgment. See Parliament Industries, Inc. v. William H. Vaughan & Co., 501 Pa. 1, 13, 459 A.2d 720, 726 (1983); DeRose v. Lombardi, 413 Pa. 258, 261, 196 A.2d 336, 338 (1964); see also Haggerty v. Fetner, 332 Pa.Super. 333, 343, 481 A.2d 641, 646 (1984).

The defendant’s argument that the plaintiff is foreclosed from confessing judgment on the entire $80,000 sued upon is partially correct. Under our holding today, the earlier confession of judgment by the bank on a segment of the debt, i.e., $10,000, precludes the assignee (plaintiff) from confessing judgment as to that amount. Our recourse in such an instance, i.e., where judgment was entered for an item clearly within the warrant, but for an extensive amount, rather than strike, will be to remand to allow a modification of the judgment to reflect the correct dollar amount permitted to be recouped under the plaintiff’s warrant of attorney. See Roche v. Rankin, 406 Pa. 92, 97, 176 A.2d 668, 672 (1962).

The next issue claims an abuse of discretion on the part of the court below in ignoring the evidence of record and reaching outside of the record to an arbitration proceeding instituted by the plaintiff against the defendant as the “predicate” for its refusal of the defendant’s petition.

Our review of the record (pleadings and depositions) indicates that B. Lipsitz Company was engaged in the business of selling wholesale cigarettes, tobacco and confec-tionaries to cigarette vendors, retail stores and other wholesalers, one of whom was the defendant, d/b/a Walker Vending Service.

For some fifteen years the business relationship between the two litigants had fostered to the point where the defendant had an open account with B. Lipsitz Company, i.e., he could collect the merchandise and not have to pay for it until the following week. This is what happened here, except that the defendant never paid. In fact, the defendant had run the debt up to $50,000 and still was allowed an open account because of his assurance to Herman Lipsitz that he would pay the indebtedness. However, when the account rose to more than $100,000, when one includes four “non-sufficient funds” (N.S.F.) checks issued by the defendant, Herman Lipsitz spoke to the defendant.

According to the deposition testimony of Mr. Lipsitz, the only matter that the defendant did not acknowledge owing, which was ultimately resolved in favor of the plaintiff by arbitration, was a dispute over an N.S.F. check for more than $19,000. But the witness recited that the defendant conceded owing up to $80,000, and that is when arrangements were put in motion with the bank to advance a loan to the defendant for the amount stated. This was evidenced by a non-negotiable judgment note signed by the defendant on December 30, 1983.

Mr. Lipsitz remarked unequivocally, on direct and cross-examination, that the defendant admitted owing at least $80,000 and that he would sign a note to that effect.

The money secured from the bank by the defendant was credited to the plaintiffs account. When the defendant failed to make the monthly payments, the plaintiff, as guarantor, paid the note.

At one point the plaintiff confronted the defendant with his default and was offered a pledge of the defendant’s stock in Walker Vending Service to assure that payment on the note would be forthcoming. A stock pledge agreement, making reference to the debt of the defendant to the plaintiff, was drafted but never signed by the defendant.

The deposition of Joel A. Murphy, the Assistant Manager of Pittsburgh National (in the Potter office where the loan was secured), was corroborative of Mr. Lipsitz’s version of what transpired. For instance, Mr. Murphy recalled the standard procedure followed by Pittsburgh National in approving a loan.

First, a financial statement would have to be prepared on the applicant. Although such a statement was not taken in the defendant’s case on a Pittsburgh National form, there was in the bank’s file a loan application for $80,000 on a Union National Bank form.

Since Mr. Murphy was not the initial loan official who would have met with the defendant, he offered an explanation for the Union National loan form being in Pittsburgh National’s file:

I can’t answer that a hundred per cent but as I mentioned previously, there are times an applicant, when they apply to us, they say, well, I just applied to such-and-such and I have my financial statement with another bank and I [Mr. Murphy] will let you use that.

In essence, the witness was saying that the Union National form was being used in the defendant’s case as “an application”, a personal financial statement necessary as a prerequisite to attaining a loan with Pittsburgh National. Therefore, the first requirement for securing a loan was met.

The second requirement of a credit check did not appear to have been prepared in the defendant’s case. Nonetheless, the approval of the loan was initialed by three bank officials. This form (Exhibit # 2) lists the amount of the loan ($80,000), the borrower (Roy Walker) and the endorser/guarantor (B. Lipsitz Company and Herman Lipsitz). In the “Remarks” section appears the following comments by the bank:

Today $80,000 was advanced to the above at 12.5% on a demand unsecured basis. Purpose of this loan is to pay monies due the B. Lipsitz Company. Repayment will be at $5,000.00 monthly plus interest with the stipulation that with the first default on payment the B. Lipsitz Company will make payment. Proper approval by Albert Allen. Guaranty agreement of Ray and Claire Walker has been waived per Albert Allen.

Mr. Murphy was not able to produce the actual document evidencing the guarantor’s signature since it would have been the practice of the bank to return this item to the guarantor upon payment of the loan. Instead, the witness opined that from the content of Exhibit # 2 there was reason to believe that such a document was executed as part of the loan process. Also, when counsel for the defendant asked the witness whether there could be any reason for the “guaranty” on the back of the non-negotiable note not to be signed, he stated: “Most of the time, we do not get it endorsed; very seldom.” But, the witness had no doubt in his mind that B. Lipsitz Company, as well as Herman Lipsitz, would have been the guarantor.

More importantly, the loan officer remembers speaking with the defendant for “about an hour” in regard to the loan. As put by the witness:

We would have discussed the loan. We’re talking about $80,000. This is money owed to B. Lipsitz Company. * * There would be no reason for Mr. Walker to be in Pittsburgh National Bank unless we were discussing the loan monies owed to B. Lipsitz Company.

Further, in regard to payment, Mr. Murphy only saw checks endorsed by B. Lipsitz Company or Herman Lipsitz, and never saw any from the defendant.

The defendant was never deposed, so the testimony of Messrs. Lipsitz and Murphy remained uncontradicted. Compare Danovitz v. Portnoy, 399 Pa. 599, 161 A.2d 146 (1960). Thus, we find that the aforementioned recitation of the facts is supportive of the court’s determination below that the defendant obtained a loan to repay monies owed to the plaintiff. To do otherwise, would be to take a myopic view of the evidence.

Contrary to the defendant’s contention that the court below looked to matters de hors the record, i.e., an arbitration proceeding rendered favorable to the plaintiff, as a basis for the ruling is unfounded. The court merely was reconstructing the events leading up to the case under review, and, in doing so, made mention of the arbitration proceeding. This is not unreasonable since this subject was broached during Herman Lipsitz’s deposition. Further, it was mentioned three times in the “Discussion” section of the plaintiff’s brief filed with the court below and of record. Thus, there was “record” evidence of an arbitration proceeding, and the court’s reference to it in recounting the facts falls far short of the defendant’s portrayal of the court’s reliance thereon as the “predicate” for the ruling entered.

The third error argued deals with the judgment note being paid and satisfied prior to its assignment thus precluding the plaintiff from executing a confession of judgment.

The defendant fails to realize that the record buttresses the plaintiff’s assertion that it paid for the $80,000 loan advanced to the defendant by the bank and later credited to his account with the plaintiff.

The defendant’s default on the note resulted in the plaintiff “making good” on the debt because of its “guarantor” status. With payment on the note, the plaintiff purchased the debt and became an assignee of the bank and, as a result, was entitled to enforce payment on the note just as the bank could have done. See Etter, supra, 356 Pa.Super. at 506, 515 A.2d at 9.

The fourth issue placed before us is equally unmeritorious in that the defendant’s position as an “accommodation maker” for the plaintiff is refuted by the record. Compare Hess v. Gower, 139 Pa.Super. 405, 11 A.2d 787 (1940).

The last two claims of the defendant to be addressed revolve around the alleged commission of error on the part of the court below in not considering the defendant’s amended petition and argument alleging fraud by the plaintiff.

Again, our examination of the record does not support either contention. Especially is this so with regard to the fraud argument where the defendant produced no evidence to establish by clear, precise and indubitable facts the occurrence of such a claimed impropriety. See Appeal of English, 119 Pa. 533, 541, 13 A. 479 (1888). Therefore, even with the court’s failure below to address the issues, we find them to be without support in the record and not warranting the relief requested.

Order reversed and the case is remanded to allow an amendment of the judgment to reflect the proper dollar figure, arrived at after deducting the amount confessed by the bank on its May 6, 1985 judgment against what the plaintiff was awarded instantly. In all other regard, we find the court acted properly under the established law in pursuing the course it did as to the petition to strike and/or open judgment.

KELLY, J., concurs in the result.

      . See Pa.R.App.P. 311(a)(1).

      . The note specifically provides that the power to confess judgment is not expended with a “single exercise” of such a power. Rather, "the power shall continue undiminished and it may be exercised from time to time as often as the holder shall elect, until such time as the holder shall have received payment in full of the debt, interest and’ costs.”

      . The Rule provides:
      Rule 2953. Successive Actions
      (a) Where an instrument authorizes judgments to be confessed from time to time for separate sums as or after they become due, successive actions may be commenced and judgments entered for such sums.

        (b) If an instrument authorizes entry of judgments for money and in ejectment, the entry of judgment in ejectment shall not prevent the entry of judgment for money.

        Note: The limits within which the plaintiff may have satisfaction under one or both of these judgments is a matter of substantive law.
      (Emphasis added) Even Rule 2953(a) specifically restricts successive actions to “separate sums” claimed due and collectible under a warrant of attorney in a note, as contrasted to the "same sum” of money already confessed.

      . The May 6, 1985 judgment, seeking principal, interest and attorney’s fee, as is reflected in the exhibits attached to Joel A. Murphy’s deposition, comes to $11,680.17, while the present judgment at issue tabulates to be $88,948.47. The difference between the two, i.e., $77,268.30, would constitute the amount which could be confessed under the warrant of attorney.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    522 A.2d 569
    Alice V. ROUNSLEY and Nancy J. Lockard T/D/B/A A & N Construction, Appellees, v. D.C. VENTRE & SONS, INC., a Corporation and International Fidelity Insurance Company, a Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued October 7, 1986.
    Filed Jan. 26, 1987.
    Reargument Denied April 1, 1987.

      Jay Y. Rubin, Indiana, for appellants.
    Michael J. Toretti, Indiana, for appellees.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   DEL SOLE, Judge:

Presented for our consideration is an appeal from the Order of Court, filed April 21, 1986, in which Appellants’ petition to open a default judgment was denied.

The procedural history of this case may be adequately summarized as follows: On July 19, 1985, Appellees filed a complaint against Appellants for payment of materials and labor performed pursuant to a contractual agreement in which Appellees agreed to install sidewalks and curbs for Appellants. Preliminary objections were filed and argued. Thereafter, on January 22, 1986, the hearing court denied Appellants’ preliminary objection and, by Order of Court, directed Appellants “to file an answer within 20 days from the date of [said] order or suffer a default judgment.” (Appellants’ Brief, p. 4). An answer to Appellees’ complaint was not filed within this period. Subsequently, on February 12, 1986, Appellees filed a praecipe for entry of a default judgment with the Prothonotary of Indiana County. Appellants later filed a petition to open the judgment on February 14, 1986. Following argument on this petition, an Order of Court was filed on April 22, 1986 refusing Appellants’ petition to open the default judgment. This appeal follows.

By their brief, Appellants raise two issues:

1. whether the Appellees were required to give notice of their praecipe to enter a default judgment, and if so, was failure to do so grounds for opening the judgment; and,
2. whether the hearing judge erred in denying Appellant’s petition to open the default judgment without consideration of the equities affecting Appellants.

Initially we set forth our appellate scope of review. It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984).

Prior to granting a petition to open judgment, the petitioner must establish that: 1. the petition was promptly filed after the judgment was entered; 2. a legitimate explanation exists; and, 3. a meritorious defense to the underlying substantive claim is advanced. Wolfskill v. Egan, 350 Pa.Super. 223, 224, 504 A.2d 326, 327 (1986). We are satisfied that Appellants have met the first requirement of the three-pronged standard of review inasmuch as the petition to open judgment was filed on February 14, 1986, only two days after notice of the default judgment was sent to Appellees by the Prothonotary’s Office.

Appellants attempt to meet the burden of the second requirement by alleging that, since they did not receive proper notice of Appellees’ praecipe for entry of default judgment pursuant to Pa.R.C.P. 237.1, their failure to answer the complaint should be excused. Pa.R.C.P. 237.1 provides:

a) No judgment by default shall be entered by the pro-thonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe
b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions of Act No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

Pa.R.C.P. 237.1 (emphasis added).

Appellants contend that Appellees filed their praecipe on February 12, 1986 without first giving notice to Appellees or to their defense counsel. Appellants further complain that only one of two defense attorneys was forwarded a copy of the January 22, 1986 Order of Court. Local counsel, who presumably was to file the answer to the complaint, received notice of the Order from neither the Court Administrator of Indiana County nor from co-counsel. From these circumstances, Appellants claim that, had Ap-pellees given notice of intent to file a praecipe for entry of judgment by default, it would have alerted both defense attorneys that an order requiring an answer had been entered.

We have carefully reviewed the record and note that absent from Appellees’ praecipe is the proper certification that a written notice of intention to file the praecipe was mailed or delivered to Appellees or their defense counsel. See Pa.R.C.P. 237.1. Moreover, Appellees do not aver that such notice was indeed sent to the proper parties; nor do they proffer any explanation as to why Rule 237.1’s notice requirement was ignored.

We are mindful of the pitfalls associated with default judgments prompting the inclusion of the notice provision in Rule 237.1:

[t]he increasing number of petitions being filed in the common pleas courts throughout the Commonwealth to open default judgments and the ensuing appeals have become a matter of concern to the courts.
One part of the problem arises from the entry of “snap judgments” without notice, a practice sharply disapproved by the Superior Court, and the lack of notice is frequently singled out as an important factor justifying the opening of a default judgment.

Explanatory Note to Pa.R.C.P. 237.1 (emphasis added). Accordingly, we find that Appellees’ failure to mail proper notice to Appellants and defense counsel resulted in the exact harm that Rule 237.1 was meant to alleviate. Therefore, we hold that Appellants have supplied this court with an adequate excuse for their failure to answer Appellees’ complaint within the twenty-day time period.

Appellants posit that the January 22, 1986 Order of Court constituted a notice exception under Rule 237.1(b)(1) since the order specifically stated that Appellants had twenty days from the date of the Order to answer the complaint “or suffer a default judgment.” It is argued that this Order amounts to “a judgment entered pursuant to an order” specifically exempted from the . notice requirement under Rule 237.1(b)(1). This argument was successfully presented before the hearing court. See Opinion and Order of April 21, 1986. Insofar as the January 22, 1986 Order has engendered a great amount of confusion, we take this opportunity to comment on its true effect.

We have examined the Order and are not convinced that it worked to automatically enter judgment once the twenty days lapsed. Rather, we interpret the phrase “or suffer a default judgment” to be a mere expression by the court of the possible ramifications that could occur if Appellants’ answer to the complaint was not timely filed. This view is consistent with our analysis of the facts in Estate of Levy By Levy v. CNA Insurance Company, 338 Pa.Super. 191, 487 A.2d 919 (1985). In that case, the Appellees, by order of court, were given twenty days in which to file an answer. After this period had passed, the appellees praeciped for default judgment, but neglected to give the appellants proper notice. We opined under those circumstances that notice was necessary since the order did not enter judgment. Id. at 338 Pa.Superior Ct. 197, 487 A.2d 922. See also Pa.R.App.P. 301(c) and accompanying Explanatory Notes (a direction by the lower court that judgment shall be entered, unaccompanied by the actual entry of the order in the docket is unappealable). To interpret the January 22, 1986 Order as an entry of default judgment by the hearing court would strip Rule 237.1 of the ameliorative effect the notice requirement was meant to supply.

We now turn to the third and final prong in reviewing the hearing court’s refusal to open judgment. This standard directs Appellants to set out a meritorious defense to the underlying claim. This defense must amount to more than bald assertions or accusations. Rather, it “must be presented in precise, specific, clear and unmistakable terms.” Sines v. Packer, 316 Pa.Super. 500, 504, 463 A.2d 475, 477 (1983). We have examined the arguments formulated in Appellants’ brief and find that they have failed to fulfill this final requisite. We can glean neither from Appellants’ brief nor from their petition to open judgment any indicia of an effort to set forth a meritorious defense.

Appellants attempt to justify this omission by inappropriately citing a portion of Hudgins v. Jewel T Discount Store, 351 Pa.Super. 329, 505 A.2d 1007 (1986) which stated that “[i]f the equities are otherwise clear, a meritorious defense need not be demonstrated.” Id. at 351 Pa.Superior Ct. 333, 505 A.2d 1009. This case involved an appeal from an order denying a petition to open judgment in a trespass action. In Hudgins, our learned colleague, Judge Popovich, thoroughly explained why a meritorious defense was not required. Prior to July 1, 1984, a petition to open judgment in a trespass action did not have to include a meritorious defense. Such petitions from a judgment sounding in as-sumpsit did mandate a showing of a meritorious defense. However, with the advent of an amendment to the Rules of Civil Procedure abolishing any distinction between the two actions, came the pronouncement by this court that, in all petitions to open judgment, there must be a meritorious defense alleged. Wolfskill, supra, at 350 Pa.Superior Ct. 223, 227, 504 A.2d 326, 328 (1986). In Hudgins, it was pointed out that the cause of action before the court was filed on April 19, 1984; therefore, it was not inconsistent to apply the standards that were in effect at the time the action was commenced. Id. at 351 Pa.Superior Ct. 333, n. 1, 505 A.2d 1009, n. 1. Given the particular circumstances of Hudgins, we find Appellants’ reliance on this opinion to be misplaced. For a similar discussion, see Petruzzi’s IGA, Inc. and Paul J. Petruzzi v. Joseph Pavlick, 358 Pa.Super. 203, 516 A.2d 1254 (1986). Accordingly, Appellants’ attempt to open the default judgment must fail.

Order affirmed. Jurisdiction of this court relinquished.

      . We note that had Appellants included in their petition a motion to strike judgment, our discussion of the equities involved in this case would be unwarranted. "A petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken." Kophazy v. Kophazy, 279 Pa.Super. 373, 375, 421 A.2d 246, 247 (1980) (citations omitted). Obviously, we would be inclined to strike the default judgment given the procedural improprieties discussed above. Unfortunately for Appellants, a petition to strike judgment was not averred. Pursuant to Pa.R.C.P. 2959(a), "[a]ll grounds for relief, whether to strike off judgment or to open it, must be asserted in a single petition." Failure to advance a motion for one or the other ■ results in a waiver of that type of relief. Likewise, "it has been stated that a court should not sua sponte convert a petition to open a default judgment into a petition to strike a judgment”. Id., 279 Pa.Superior Ct. at 377, at 421 A.2d 248. Therefore, we must examine the merits of Appellants’ arguments only within the context of a petition to open judgment and the underlying requisites of such petition.

      . We note that had the Order been interpreted as entering default judgment, Appellees’ praecipe would have been meaningless since the default judgment would have already been entered by the hearing court. Rule 237.1 specifically states that prior notice of intent to enter a default judgment is unwarranted where the judgment has been entered by the court. A subsequent praecipe to enter default judgment would be duplicative. This point is further clarified by the Explanatory Notes accompanying Rule 237.1:
      [a] second familiar illustration is an order under Rule 4019(c)(3). The court may enter a judgment of non pros or by default against a party who is guilty of violating a provision of Rule 4019(a). Here judgment is entered by the court itself. An additional prior notice would serve no purpose.

      Since the instant Order did not serve to enter a default judgment, prior notice of intent to praecipe was still required under the Rule.


author: JOHNSON, Judge: TAMILIA, Judge,

text:
    522 A.2d 573

    COMMONWEALTH of Pennsylvania v. Dexter BRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 11, 1986.
    Filed Feb. 24, 1987.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from the judgment of sentence for robbery, burglary, criminal conspiracy and possessing instruments of a crime. A previous appeal, filed on October 29, 1983, was never briefed and as a result, this Court dismissed the appeal without prejudice to appellant’s rights under the Post Conviction Hearing Act. Following the filing of a PCHA petition, Bright’s right to appeal was reinstated nunc pro tunc.

Appellant’s first contention is that his trial counsel was ineffective in 1) failing to object to irrelevant testimony, 2) failing to object to an erroneous jury instruction concerning his alibi defense, and 3) failing to object to a missing witness instruction. We must engage in a three part analysis to determine the adequacy of counsel’s performance. The threshold inquiry “is whether the issue[s] ... which form the basis for an assertion of ineffectiveness, [are] of arguable merit, for counsel cannot be considered to be ineffective for failure to assert a meritless claim.” Commonwealth v. Silo, 509 Pa. 406, 409-10, 502 A.2d 173, 175 (1985) (citations omitted). See also Commonwealth v. McNeil, 506 Pa. 607, 615, 487 A.2d 802, 806 (1985). If we determine there is' arguable merit, we must then decide whether counsel’s actions had some “reasonable basis designed to effectuate the interests of his client.” Commonwealth v. Kerpan, 508 Pa. 418, 420, 498 A.2d 829, 830 (1985). Finally, appellant must establish that he was actually prejudiced through the deficient performance of his counsel. See Commonwealth v. Clemmons, 505 Pa. 356, 361-62, 479 A.2d 955, 958 (1984); Commonwealth v. Dougherty, 351 Pa.Super. 603, 608-609, 506 A.2d 936, 939 (1986). “[T]he burden of establishing counsel’s ineffectiveness rests upon the defendant.” Commonwealth v. McNeil, supra, 506 Pa. at 615, 487 A.2d at 806.

Appellant has failed to meet his burden at the threshold inquiry of the foregoing analysis. Pointing to the fact that no evidence was presented as to the caliber of the handgun used during the robbery, Bright argues that testimony regarding the seizure of .22 caliber bullets from his bedroom was totally irrelevant and that counsel was ineffective for failing to so object. While the record discloses that trial counsel did object to the admission of the bullets at the close of the Commonwealth’s case and during post-trial motions, no objection was made when Detective Frank Russell testified that the bullets were found next to appellant’s bed. Because this failure to object to the testimony was considered by the court in denying counsel’s subsequent objection and motion, we will view trial counsel as having failed to timely object to the relevance of the .22 caliber bullets. See Commonwealth v. Myer, 340 Pa.Super. 176, 188, 489 A.2d 900, 906 (1985). We do not, however, find merit in appellant’s contention that the testimony regarding the bullets was irrelevant.

Relevant evidence is evidence which “tends to make a fact at issue more or less probable.” Commonwealth v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983); Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980). Although the caliber of the handgun was not established at trial, appellant’s possession of the bullets connected him with firearms, thereby bolstering his identification as the perpetrator of the crime. Any weakness in this evidence affected its weight and not its admissibility. See Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374, aff'd 501 Pa. 393, 461 A.2d 794 (1980) (defendant’s possession of a pocket knife five weeks after crime was relevant, despite victim’s inability to testify that weapon used was a knife). Trial counsel cannot be faulted for failing to object to relevant evidence.

We also find meritless appellant’s contention that the jury was improperly charged as to alibi. The trial court instructed the jury as follows:

Here, the defendant has alleged an alibi. An alibi is a defense wherein the defendant alleges or contends that at the time of the crime he was at a different place from the scene and so removed from it as to make it impossible for him to be the guilty party.
Now, the defendant has no burden of proving alibi but alibi may either standing alone or with other evidence create a reasonable doubt in your minds as to his guilt and, therefore, you should scrutinize all of the evidence very closely. You should also realize that while the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant was present at the scene of the crime, it is not necessary for the Commonwealth to prove that each piece or bit of evidence places the defendant at the scene beyond a reasonable doubt. These are all matters, Ladies and Gentlemen, for you to decide in the application of your common sense and experience as mature adults.

In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), our Supreme Court held that when a defendant presents evidence of an alibi, a specific alibi instruction must be given which guards against the danger of the jury considering the defendant’s failure to prove alibi as evidence of guilt. Relying on language enunciated in Pounds, supra, appellant argues that a jury must be instructed to acquit the defendant if the alibi evidence, even if not wholly believed, raises a reasonable doubt as to the defendant’s presence at the scene of the crime. Bright contends that the foregoing underscored language must be incorporated verbatim into an alibi charge, and that trial counsel was ineffective for failing to object to the change as given or failing to request a modification thereof.

The very issue raised by appellant was considered by this Court in Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984). There, we rejected an ineffectiveness claim and upheld an alibi instruction very similar to the one at hand, stating:

[W]e do not interpret Pounds as creating standard language for an alibi instruction. So long as the trial judge makes it clear that the defendant’s failure to prove an alibi defense is not tantamount to guilt, the Pounds safeguards are preserved.

Id., 336 Pa.Super. at 18, 485 A.2d at 406.

Here, the trial court’s instructions specifically stated that “the defendant ha[d] no burden of proving alibi____” This very concern, as articulated by the trial court, was the precipitating factor behind the language in Pounds which appellant finds so critical. See Pounds, supra, 490 Pa. at 633, n. 16, 417 A.2d at 603, n. 16. In effect, appellant is merely contesting the form of the instruction rather than its substance. Furthermore, the charge at hand contained every safeguard provided in the charge upheld in Johnson, supra. Finding no ineffectiveness on the part of counsel there, we decline to do so here.

Appellant’s final assertion of ineffective assistance is his trial counsel’s failure to object to a missing witness instruction. His sole argument is that because three alibi witnesses were presented at trial, additional alibi testimony would have been merely cumulative, making a missing witness instruction inapplicable. We disagree.

Appellant was tried for crimes which either occurred or culminated on March 6, 1982, at approximately 5:00 a.m.. During trial, appellant offered an alibi defense, testifying that on the evening of March 5, 1982, he attended a party with a woman by the name of Jackie McDonald. Bright further testified that he and McDonald left the party at approximately 12:00 a.m., and that both of them returned to his bedroom where they remained until the following morning. Appellant shared his bedroom with his brother Steve, who was allegedly in the bedroom with a female guest, Sharine Bell, throughout the night of the crime. Due to the fact that neither Jackie McDonald, Steven Bright or Sharine Bell were called to testify, the jury was instructed that they could infer that the testimony of these witnesses would have been unfavorable to the defense.

It is well settled that when a defendant raises the existence of alibi witnesses who know him personally, but does not call those witnesses, the jury may infer that the absent testimony would be adverse to the defendant, and the trial court may so instruct. See Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971); Commonwealth v. Leonard, 499 Pa. 357, 364-65, 453 A.2d 587, 589 (1982); Commonwealth v. Womack, 307 Pa.Super. 396, 406, 453 A.2d 642, 647 (1982). This inference cannot be made, however, if the' missing testimony would have merely been cumulative to alibi evidence already presented. See Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983); Commonwealth v. Stafford, 307 Pa.Super. 278, 284-85, 453 A.2d 351, 354 (1982); Commonwealth v. Jones, 455 Pa. 488, 495, 317 A.2d 233, 237 (1974). Although appellant presented testimony from three witnesses which tended to corroborate his alibi defense, additional testimony from Jackie McDonald, Steve Bright and Sharine Bell would have been anything but cumulative.

None of the witnesses called by appellant could personally testify to his whereabouts at the time of the robbery. A close friend stated that he saw Dexter Bright leave a party with Jackie McDonald at around 12:00 a.m., but saw him at no time thereafter. Appellant’s sister testified that she saw Dexter, Jackie McDonald, Steve and Sharine Bell sleeping in the bedroom at 3:00 a.m., and again saw appellant in the kitchen at breakfast time. Appellant’s mother stated that she heard Dexter, Jackie, Steven and Sharine come into the house at midnight, and saw appellant and Jackie McDonald at 8:00 or 9:00 the following morning. The only other alibi evidence presented was the testimony of appellant himself.

It is apparent that Jackie McDonald, Steven Bright and Sharine Bell were essential witnesses to the alibi defense. These were the people who were allegedly in the same bedroom with appellant during the time of the robbery. They were the only witnesses who could conclusively testify as to Dexter Bright’s exculpatory location during the critical hours between 5:00 a.m. and 7:00 a.m.. To argue that their testimony would have been cumulative is to simply belie the record. See Commonwealth v. Whyatt, 235 Pa.Super. 211, 218-219, 340 A.2d 871, 876 (1975). We therefore conclude that a missing witness instruction was warranted, and that counsel was not ineffective for failing to lodge a meritless objection to the charge.

Lastly, we must determine whether the following sentence received by appellant was legal:

Bill No. 741 —Not less than 6 years
(Robbery) nor more than 20 years.
Bill No. 743 —Not less than 5 years nor more than 10 years to run
(Criminal Conspiracy) concurrently with Bill Nos. 741 and 748.
Bill No. 744 —Not less than 2% years nor more than 5 years to run
(Possessing Instruments concurrently with Bill No. 748. of Crime — i.e. handgun used during robbery)
Bill No. 748 —Not less than 6 years nor more than 20 years to run
(Burglary) concurrently with Bill No. 741.
Bill No. 749 —Not less than 6 years nor more than 20 years to run
(Robbery) concurrently with Bill Nos. 741 and 748.

Appellant contends that his separate concurrent sentences for criminal conspiracy and possessing instruments of crime were illegal under Title 18, Pa.C.S. § 906 in that both of these offenses were intended to culminate in the same robbery. We agree.

Section 906 provides that “[a] person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.” See Commonwealth v. Gonzales, 297 Pa.Super. 66, 74-75, 443 A.2d 301, 305-306 (1982); Commonwealth v. Tingle, 275 Pa.Super. 489, 499, 419 A.2d 6, 11 (1980). Criminal conspiracy and possessing instruments of crime are inchoate offenses within the purview of the statute. See Gonzales and Tingle, supra. Contrary to the suggestion of the Commonwealth, there is nothing in the record to indicate that the conspiracy and possessory crimes were committed with a separate objective in mind. Indeed, appellant’s use of the handgun during the robbery, combined with his lack of possession after the crime, implies that he possessed the gun with the intent to facilitate the conspiratorial objective of robbery. The situation at hand is distinguishable from cases such as Commonwealth v. Zappacosta, 265 Pa.Super. 71, 77, 401 A.2d 805, 808 (1979) and Commonwealth v. Brown, 336 Pa.Super. 628, 635, 486 A.2d 441, 445 (1984), where it was apparent from the record that the inchoate crimes did not share the same objective.

Although we find a portion of appellant’s sentence to be illegal, we need not remand to correct the error. Because the entire, sentence was to run concurrently, we will simply vacate the sentence imposed for possession of an instrument of crime as the lesser offense. See Commonwealth v. Gonzales, supra, 297 Pa.Super. at 74-75, 443 A.2d at 305-306; Commonwealth v. Turner, 290 Pa.Super. 428, 434, 434 A.2d 827, 831 (1981).

Judgment of sentence for robbery, burglary and conspiracy affirmed. Judgment of sentence for possessing instruments of crime vacated.

TAMILIA, J., files a concurring opinion.

TAMILIA, Judge,

concurring:

I would agree with the majority in all respects except in its findings on discovery of .22 caliber bullets in appellant’s home. Contrary to the majority’s holding that admission of the .22 caliber shells was relevant, I would hold that they were not relevant to establishing that the appellant committed the crime, which was a robbery with a handgun, as the caliber of the gun had not been established. The majority would hold that the objection to the admission of the .22 caliber bullets as evidence, was not made contemporaneously therewith and, therefore, is waived. Appellant’s counsel alleges ineffectiveness of counsel of trial counsel in failing to make timely objections. I would agree. Since this is the first opportunity to allege ineffectiveness of counsel, and with the complete record before us, we can review that issue on its merit. Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986).

The holding by the majority that “[although the caliber of the handgun was not established at trial, appellant’s possession of the bullets connected him with firearms, thereby bolstering his identification as the perpetrator of the crime” (At 265), is carrying the inference beyond reasonableness. Possession of three .22 caliber bullets alone, in one’s home, does not warrant the presumption that that person also has a gun, particularly in a society and state where guns are so widespread and people have contact with firearms in arcades, hunting and other recreational pursuits and millions of armed forces servicemen have the opportunity to bring them home as souvenirs. It is not unlikely that a person, never possessing a gun, could have had access to shells. The majority’s reliance on Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980) is unpersuasive. There, the robbery appeared to have been committed by the use of an unspecified sharp instrument held to the victim’s throat. The defendant was found with a knife in his right rear pocket five weeks after the crime. Admittedly, this evidence would have greater probative value and relevance than the shells in the present case. In a strong dissent by Spaeth, J., he correctly pointed to the prejudicial manner in which the evidence was admitted. There, the knife was displayed to the jurors on closing, despite the fact that it was never admitted into evidence over the objection of defense counsel. I would, therefore, find the testimony as to the .22 caliber bullets was not relevant and failure to object was ineffective assistance of counsel.

My reasons for concurring in the result are based, however, on the fact that in this case, despite my belief that counsel was ineffective for failure to object to the admission of evidence of the bullets, it was not so prejudicial to appellant’s case as to warrant a reversal or a new trial. Since the other evidence was overwhelming as to defendant’s guilt, I would find that while error was committed in the admission into evidence of three .22 caliber shells, it was not so prejudicial that it would change the result. Counsel’s ineffectiveness, therefore, does not warrant a new trial.


author: OLSZEWSKI, Judge:

text:
    522 A.2d 579
    COMMONWEALTH of Pennsylvania, Appellee, v. Kevin QUARLES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 19, 1986.
    Filed March 3, 1987.

      Peter J. Scuderi, Philadelphia, for appellant.
    Marilyn F. Murray, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Appellant, Kevin Quarles, was convicted of second degree murder, two counts of robbery, and possession of an instrument of crime after a jury trial in the Court of Common Pleas of Philadelphia County. On appeal, appellant raises the following issues: (1) whether the trial court erred in failing to give jury charges on the effect of both prior felony convictions and prior inconsistent statements on a witness’s credibility; (2) whether the trial court erred in permitting the jury to be asked death qualification questions; (3) whether appellant’s trial counsel rendered ineffective assistance of counsel; and (4) whether the evidence introduced at trial was sufficient to support the jury’s verdict. For the reasons stated below, we affirm the judgment of sentence.

Appellant’s arrest and subsequent conviction resulted from an incident occurring on September 21, 1984 in McMi-chael Park in Philadelphia. The incident is aptly described in appellee’s brief as follows:

The trial evidence established that on September 21, 1984, at approximately 10:30 p.m., defendant, Markel Lewis, and the murder victim, William Sellers, were walking through McMichael Park in Philadelphia looking for a party, when they came upon Thomas Kelly and Michael Rapone, who were sitting on a park bench drinking beer (N.T. 5/16/85, 1.93; 5/17/85, 31-32; 5/20/85, 3.14). They asked Kelly and Rapone about the party, but they knew nothing about it, and the five men talked for approximately one half hour (N.T. 5/16/85, 1.94-1.95; 5/17/85, 33-34; 5/20/85, 3.15). When Kelly said he would have to leave for work and Rapone stated he would go along with him, defendant pulled out a handgun and ordered all four men to raise their hands (N.T. 5/16/85, 1.97; 5/17/85, 37; 5/20/85, 3.16-3.17). Defendant then ordered the four men over to a clump of trees in the middle of the park, where he made then lie face down on the ground (N.T. 5/16/85, 1.97-1.99; 5/17/85, 37-39; 5/20/85, 3.17-3.18). After threatening to shoot Kelly, defendant took $3 from him, along with his keys, watch and wallet, shoved his face in the mud and kicked him in the head and ribs (N.T. 5/17/85, 40-43). Defendant then tied Rapone’s hands behind his back with his belt and kicked Lewis and Sellers (N.T. 5/16/85, 1.102; 5/17/85, 44; 5/20/85, 3.21). During the course of the attacks, defendant fired two shots into the ground (N.T. 5/16/85, 1.101, 1.104; 5/17/85, 44-45). As Sellers pleaded with defendant to let him leave because he had two children and a wife, defendant pushed the gun to his head and shot him, killing him (N.T. 5/20/85, 3.23, 3.69).
Officer Stephanie Day, who was making a traffic stop near McMichael Park, heard the three shots at approximately 11:25 p.m. and proceeded to the park to investigate, where she found Kelly running towards her car for help and Rapone running around the park with his hands tied behind his back (N.T. 5/16/85, 1.29-1.39). Officer Robert Kerwin then arrived on the scene and with a spotlight, spotted the body of William Sellers lying face down on the ground in a pool of blood, with a bullet wound under the right eye (N.T. 5/16/85, 1.69-1.71).

Appellee’s brief at pp. 1-3 (footnote omitted). After denial of his post-verdict motions, appellant filed the present appeal.

Appellant first contends that the trial court erred by not charging the jury about the effect of prior inconsistent statements and prior felony convictions on a prosecution witness’s credibility. Specifically, appellant asserts that the trial court erred in failing to charge the jury that the testimony of Markel Lewis (a prosecution witness) should be received with caution since on a previous occasion he made statements inconsistent with his statements during his in-court testimony. Appellant further maintains that the trial court erred by failing to charge the jury on the effect of Mr. Lewis’s felony convictions on his credibility.

We, however, find that appellant’s first contention is waived since appellant’s counsel failed to make any objection on these points after the trial judge charged the jury. “Pennsylvania Rule of Criminal Procedure 1119(b) states that no charge nor omission can be ruled erroneous unless objections are made prior to jury deliberation.” Commonwealth v. Fisher, 342 Pa.Super. 533, 541, 493 A.2d 719, 723 (1985) (footnote added). See also Commonwealth v. Larkins, 340 Pa.Super. 56, 67, 489 A.2d 837, 842 (1985) (“The reason (sic) for requiring specific objections after the charge, even where points for charge had previously been proposed, are apparent. Primarily, it ensures that the court is given opportunity to avoid error.”).

Appellant next contends that the trial court erred in permitting the jury to be asked death qualification questions. Appellant argues the death qualification procedure resulted in a jury that was more conviction-prone. In addition, appellant also maintains the death qualification procedure produced a jury that did not contain a representative cross-section of the community. We, however, find appellant’s contention to be meritless. The Pennsylvania Supreme Court has “held that death qualification does not deprive the defendant of a fair determination of guilt or innocence.” Commonwealth v. Colson, 507 Pa. 440, 453, 490 A.2d 811, 817-818 (1985), cert. denied, — U.S. —, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also Commonwealth v. Maxwell, 505 Pa. 152, 165, 477 A.2d 1309, 1316 (1984) (“Simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury.”).

In addition, the United States Supreme Court, in a recent decision, Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), held that the Constitution does not prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trtial. Id. at 1760. The Supreme Court also held that, even assuming “death qualification produces juries somewhat more conviction-prone than non-death qualified juries, ... the Constitution does not prohibit the States from ‘death qualifying’ juries in capital cases.” Id. at 1764. Two reasons support the Court’s latter holding permitting states to death-qualify juries in capital cases. First, the Court stated “groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors ... are not ‘distinctive groups’ for fair cross-section purposes.” Id. at 1765. Second, the Court also noted that an “impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts.” Id.

Appellant also contends that he received ineffective assistance of counsel at trial. Appellant argues that his trial counsel rendered ineffective assistance by failing to request an accomplice charge for Markel Lewis, by failing to object to the trial court’s jury instructions on identification, and by failing to object to the trial court’s charge on alibi.

The appellate standard of review to be applied to claims of ineffective assistance of counsel was recently enunciated by the Pennsylvania Supreme Court in Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). The Court noted:

This Court recently reiterated the appellate standards for reviewing claims of ineffective assisstance of counsel; in Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983), we stated: We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 609-606, 235 A.2d 349, 352-353 (1967):

(C)ounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel decisions had any reasonable basis. Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498 (1980). It is only when the claim which has been forgone is of arguable merit that further inquiry must be made into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).

Additionally, because counsel’s stewardship of the trial is presumptively effective, the burden of establishing counsel’s ineffectiveness rests upon the defendant.

Id., 506 Pa. at 614-615, 487 A.2d at 805-806. Furthermore, in Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), the Pennsylvania Supreme Cout, in discussing the above standards, stated, “(I)mplicit in these standards is the requirement that the defendant must demonstrate that he was harmed by his attorney’s alleged ineffective assistance.” Id. 511 Pa. at 566, 515 A.2d at 871.

In the instant case, appellant’s contention of his trial counsel’s ineffectiveness by failing to object to the judge’s Kloiber charge on identification is waived. In his post-verdict motions, appellant asserts only his trial counsel’s ineffectiveness for failure to give the trial judge a Kloiber identification charge for presentation to the jury, not trial counsel’s failure to object to the trial judge’s identification charge to the jury. When a defendant’s post-verdict motions do not contain an objection included in defendant’s appeal claim, the claim is waived and will not be considered on appeal. See Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979). See also Commonwealth v. Beckham, 349 Pa.Super. 430, 433, 503 A.2d 443, 444 (1986) (only issues specifically raised in post-verdict motions are preserved for appellate review).

We also find that appellant’s other two ineffectiveness contentions are meritless. Appellant contends that his trial counsel rendered ineffective assistance by failing to request an accomplice charge from the Commonwealth’s witness, Markel Lewis. Trial counsel’s strategy of not requesting an accomplice charge, however, was a reasonable defense strategy. Requesting an accomplice charge for Markel Lewis would have conflicted with appellant’s alibi defense that ten minutes after the incident in the park he met his girlfriend at a bar some distance from the scene of the crime and that he could not have traveled the distance between the park and the bar in only ten minutes. Appellant’s trial counsel could not logically argue that appellant had an accomplice to a crime appellant maintains he did not commit because he has an alibi. Appellant’s trial counsel, consequently, reasonably chose to forego requesting an accomplice charge for Mr. Lewis, proffering only the potentially stronger alibi defense. See McNeil, 506 Pa. at 614-615, 487 A.2d at 805 (“Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.”).

Appellant further contends that his trial counsel was ineffective because he did not object to the trial judge’s alibi charge to tibíe jury. Appellant maintains that the alibi charge was defective since it did not specifically tell the jury that the alibitestimony offered by appellant’s witness did not have to be totally accepted to acquit appellant. We, however, find appellant’s contention to be meritless. The trial judge in his charge'to the jury regarding appellant’s alibi stated: “The defense evidence to the effect that he was not present either by itself or together with other evidence may be sufficient to raise a reasonable doubt of his guilt in your minds.” N.T. 5/23/85, 5.20 (emphasis added). In addition, our review of the trial judge’s charge on alibi and the alibi charge in Pennsylvania Suggested Standard Jury Instruction, Section 3.11 (1985) reveals that the two are very similar. Appellant’s trial counsel, consequently, did not render ineffective assistance of counsel by failing to object to the trial judge’s alibi charge since the judge’s alibi charge informed the jury that the alibi, by itself or with other evidence, may be sufficient to raise reasonable doubts, in the jurors’ minds about appellant’s guilt. Objecting to an alibi charge informing the jury that the alibi alone could be enough to raise reasonable doubts about appellant’s guilt would have been frivolous.

Appellant’s last contention is that the evidence adduced at his trial was insufficient to prove him guilty beyond a reasonable doubt. In Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1985), the Pennsylvania Supreme Court enunciated the following appellate standard of review for insufficiency of the evidence claims: “Where a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charges was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Id., 506 Pa. at 472-473, 485 A.2d at 1103.

In the instant case, our review of the record reveals that the jury had more than sufficient evidence to prove appellant guilty beyond a reasonable doubt. Testimony adduced at trial establishes that appellant, Lewis, and Sellers (the murder victim) were walking through McMichael Park when they came across Kelly and Rapone. After the five men conversed briefly, appellant withdrew a concealed handgun and ordered the other four men to lie face down on the ground. Appellant kicked and assaulted the men while searching their clothing for money and other valuables. Appellant also fired several shots into the ground, and the murder victim pleaded for his life, saying he had a wife and two children. Ignoring the victim’s pleas, appellant killed him by placing the gun against the victim’s head and firing. In the present case, the jury could have found beyond a reasonable doubt that appellant’s actions encompassed the elements of murder, robbery, and possession of an instrument of crime.

In reviewing the record, it is also clear that the jury believed the testimony of the Commonwealth’s witnesses and rejected as unbelievable the testimony of appellant’s witnesses, including the alibi offered by his girlfriend. “Such a determination is within the sole province of the trier of fact who is free to believe all, part, or none of the evidence.” Jackson, 506 Pa. at 475, 485 A.2d at 1105. See also Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983) (“The fact finder is free is believe all, part, or none of the evidence.”).

Accordingly, we affirm the judgment of sentence.

CAVANAUGH, J., concurs in the result.

      . After the trial judge delivered his jury charge, the following exchange occurred between the trial judge and appellant’s trial counsel:
      THE COURT: Gentlemen, are there any objections to the charge as delivered?
      I will hear from the defense first.
      MR. GREENE: In my judgment, it’s my considered opinion that you, Judge Maimed, gave an extremely fair charge.
      This is what you have done in other cases which I have tried in your courtroom, and in my judgment you performed admirably in your charge. My compliments to you.
      N.T. 5/23/85, 5.31.

      . Pa.R.Crim.P. 1119(b) states:
      No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

      . Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). This case enunciated the standards to be followed by trial judges in giving jury charges regarding witness identification of suspects.


author: KELLY, Judge:

text:
    522 A.2d 584
    Shirley J. WHITMER, Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed March 6, 1987.

      Joyce Ullman, Philadelphia, for appellant.
    Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.
   KELLY, Judge:

In this case, we are called upon to determine whether the use, or attempted use, of a public pay telephone involves a “transaction in goods” so as to trigger application of implied warranties imposed by Article II of the Uniform Commercial Code as it has been adopted in Pennsylvania. 13 Pa.C.S.A. § 1101 et seq. (hereinafter Code). We find that neither the use, nor the attempted use, of a public pay telephone involves a “transaction in goods,” and consequently, the implied warrant provisions of Article II of the Code do not apply.

Appellant, Shirley Whitmer, alleges that she was injured on July 26, 1981, when, as she lifted the receiver of a pay telephone, the metal cord which connects the receiver to the wall unit snapped and struck her in the mouth. The pay telephone in question was owned by appellee, Bell of Pennsylvania, and was mounted to the wall of the entrance way of a K-Mart store in Allentown, Pennsylvania.

On January 1, 1985, appellant filed the instant suit, alleging that appellee had breached implied warranties imposed by the Code. On February 21, 1985, appellee filed preliminary objections in the nature of a demurrer. The preliminary objections were sustained by order and opinion of the trial court filed June 6, 1985. Reconsideration was denied, and this timely appeal followed.

On appeal, appellant contends that: 1) the trial court erred in failing to accept as true all of the well-pleaded facts of the complaint; and 2) the trial court erred in finding that the appellant’s attempt to purchase a telephone call on a public pay telephone was not a “transaction in goods” so as to trigger the implied warranty provisions of the Code. We find no merit in either contention; accordingly, we affirm the order of the trial court.

I.

Appellant first contends that the trial court erred in failing to accept as true all of the well-pleaded facts of the complaint. Appellant argues that the trial court “made its own gratuitious [sic] findings of fact, created an irrelevant factual scenario, and based its decision on a hypothetical factual alternative.” (Appellant’s Brief at 10). Appellant argues that had the trial court accepted the facts as pleaded, the trial court would not have sustained appellee’s demurrer. We cannot agree.

It is axiomatic that in determining whether a complaint sets forth a cause of action, which if proven would entitle the plaintiff to the relief sought, the court must accept as true all of the well-pleaded material facts contained in the complaint, as well as all of the reasonable inferences deducible therefrom, but need not accept as true any conclusions of law. See Allegheny Co. v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); Higgens v. Clearing Machine Corp., 344 Pa.Super. 325, 327, 496 A.2d 818, 819 (1985); Bartanus v. Lis, 332 Pa.Super. 48, 52-53, 480 A.2d 1178, 1180 (1984). Upon review of the pleadings and the order and opinion of the trial court, we find that the trial court, in fact, accepted as true all of the well-pleaded material facts of the complaint and gave the appellant the benefit of the reasonable inferences deducible therefrom.

II.

Appellant next contends that the trial court erred in finding that her use of a public pay telephone did not involve a “transaction in goods” so as to trigger the implied warranties of the Code. Appellant argues that by installing a pay telephone in the K-Mart store, the appellee invited the general public to purchase its product, telecommunications. Appellant cites Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964), Schriner v. Pa. Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985), and Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981), in support of her argument that her use of the public pay telephone involved the sale of a tangible, movable, and measurable good, and therefore, that the implied warranties of the Code applied.

Appellee argued before the trial court that, because appellant had not yet deposited any coins in the pay telephone, no contractual relationship existed between the parties at the time the alleged injuries occurred. Appellee also argued that pay telephones are provided merely as part of the vast telecommunication network by and through which telecommunication services are rendered, and that the subject matter of the appellant’s intended transaction was telecommunication services and not a tangible, movable good. Appellee cited Field v. Golden Triangle Broadcasting Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. denied 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974), Williams v. West Penn Power Co., 313 Pa.Super. 461, 460 A.2d 278 (1983), modified 502 Pa. 557, 467 A.2d 811 (1983), and DeMatteo v. White, 233 Pa.Super. 339, 336 A.2d 355 (1975), in support of its contentions.

The parties have not cited, and our research has not disclosed, any case in our courts, the federal courts, or those of our sister states, which has determined whether the use of a public pay telephone may be considered a transaction in goods so as to trigger the implied warranty provisions of the Code. Nonetheless, we find that the instant case is governed by basic contract principles and well-established precedent regarding the scope of the Uniform Commercial Code. We find that the appellant’s attempt to use a public pay telephone did not involve a “transaction in goods” because the use of a public pay telephone involves the purchase of services and the use of equipment (by lease or bailment) rather than the sale of a tangible movable good. Consequently, we find that the implied warranty provisions of Sections 2314 and 2315 of the Code are not applicable to the use or attempted use of public pay telephones; therefore, appellee’s demurrer was properly sustained.

A.

Section 2102 restricts the scope and applicability of Article II of the Uniform Commercial Code (including the implied warranty provisions of Sections 2314 and 2315, supra at note 1), to cases involving “transactions in goods.” 13 Pa.C.S.A. § 2102. (Emphasis added). “Goods” are defined as “all things ... which are movable at the time of identification to the contract for sale other than money'in which the price is to be paid, investment securities ..., and things in action.” 13 Pa.C.S.A. § 2105. Thus, in order to be a “transaction in goods,” the subject matter of the transaction — the putative good — must be tangible and movable. See Field v. Golden Triangle Broadcasting Inc., supra, 451 Pa. at 422-424, 305 A.2d at 696; Tomb v. Lavalle, 298 Pa.Super. 75, 78-79, 444 A.2d 666, 668 (1981).

Appellant contends that:

The Appellee telephone company invited the Appellant consumer to purchase its product, telecommunication, by installing coin telephone equipment in the K-Mart store. When the Appellant consumer attempted to purchase this product and the coin telephone equipment to do so, she entered into a transaction in goods with the Appellee telephone company,....

(Appellant’s Brief at 7-8). (Emphasis added). Appellant reasons that the purchase of telecommunications, and the use of telephone equipment to do so, is analogous to the purchase of electricity or gas and should, therefore, be considered a “transaction in goods.”

However, appellant’s reliance upon Gardiner v. Philadelphia Gas Works, supra, and Schriner v. Pa. Power & Light Co., supra, is misplaced. In Schriner, this Court stated, “[t]he transmission of electricity, as well as other similar type consumable goods, is a service being rendered by the utility to prospective purchasers.” 348 Pa.Superior Ct. at 188, 501 A.2d at 1134. This Court went on to find that, “electricity only becomes a product, for the purposes of strict liability, once it passes through the customer’s meter and into the stream of commerce.” Id. Thus, gas and electric utilities provide both transmission services, and separate and distinct, tangible, movable products (gas and electricity).

[31 Herein lies the distinction between Gardiner and Schriner and the instant case. The gas and electric utilities provide both transmission services and the products to be transmitted. The telephone company, however, provides transmission services, but not the communication to be transmitted. While the telephone company does provide certain incidental communications (for instance, directory assistance), the predominant nature of the transaction remains the transmission of consumer provided communications from one location to another which is the rendition of a service. When the transaction involves predominantly the rendition of services, the fact that tangible movable goods may be involved in the performance of services does not bring the contract under the Code. De-Matteo v. White, supra; Fraiser v. Greenblatt, 7 D. & C.3d 779 (1978); Victor v. Barzaleski, 19 D. & C.2d 698, 701-02 (1959); see also Lincoln Pulp & Paper v. Dravo Corp., 436 F.Supp. 262, 275 (D.C.Me.1977); Lemley v. J & B Tire Co., 426 F.Supp. 1378, 1380 (W.D.Pa.1977); see generally Annotation, Applicability of UCC Article II to Mixed Contracts for Sale of Goods and Services, 5 ALR 4th 501 (1981 & Supp.1986).

B.

Appellant also argues that she was attempting to purchase the use of telephone equipment. When a transaction involves movable and immovable goods, the transaction will be included or excluded from the scope of Article II based upon the character of the bulk of the assets sold. Compare Field v. Golden Triangle Broadcasting Corp., supra, 451 Pa. at 422-424, 305 A.2d at 696, and DeFilippo v. Ford Motor Co., 516 F.2d 1313, 1322-23 (3rd Cir.1975), cert. denied 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 141 (1975). While transmission lines are clearly not movable goods (see Field v. Golden Triangle Broadcasting, Inc., supra, 451 Pa. at 422-424, 305. A.2d at 696), whether other equipment connected to the telecommunications system may be considered movable goods depends on whether it is capable of being severed without material harm to the equipment or the property to which it is attached. Uniform Commercial Code Comment (1), reprinted following 13 Pa.C.S.A. § 2105. The fact, however, that a fixture has moving parts (such as a telephone receiver) would not make an otherwise non-severable fixture a movable good under the Code.

However, a transaction in goods, or contract or agreement pertaining thereto, is defined at Section 2106(a):

In this division unless the context otherwise requires ‘contract’ and ‘agreement’ are limited to those relating to the present or future sale of goods.... A ‘sale’ consists in the passing of title from the seller to the buyer for a price (Section 2401).

13 Pa.C.S.A. 2106(a); DeMatteo v. White, supra, 233 Pa.Superior Ct. at 344-345, 336 A.2d at 357-58. Consequently, “[a] prerequisite to an action for breach of warranty is that there must be a sale.” Williams v. West Penn Power, supra, 313 Pa.Superior Ct. at 465, 460 A.2d at 281. (Emphasis added). If, as appellee contended below, there was no “sale,” then the character of the bulk of the assets would be irrelevant as the absence of a “sale” would take the transaction outside the scope of the Code.

Appellant contends, nonetheless, that there was a sale because:

The contractual relationship commenced when appellant reached for the ear and mouthpiece, removed the ear and mouthpiece from the cradle, all necessary movements to start the call in progress, and was attempting to put money into the coin box.

(Appellant’s Brief at 21). (Emphasis added). However, even assuming that contractual relations existed, it does not follow that the relations necessarily involved a “sale” as that term is used in the Code.

A lease, and not a sale, occurs when use and possession pass, but not title. See Ottman v. Albert Co., 327 Pa. 49, 54, 192 A. 897, 899-900 (1937). Similarly, a bailment, and not a sale, occurs when possession or title is delivered under an express or implied agreement that the property will be redelivered to the original possessor when the purpose of the bailment is accomplished. Ferrick Excavation & Grading Co. v. Senger Trucking Co., 315 Pa.Super. 69, 75, 461 A.2d 800, 802 (1983), rev’d on other grounds 506 Pa. 181, 484 A.2d 744 (1984).

Appellant intended to use the pay telephone for a measurable period of time; when her call was completed, she would have hung up the receiver and walked away. When she left, she would not have taken the phone or the vast telecommunications network with her. To the extent that she was attempting to purchase the use of the telephone equipment, the transaction involved either a lease or bailment of the equipment and not a sale. Neither leases nor bailments are within the scope of Article II of the Code. See Fraizer v. Greenblatt, supra, 7 D. & C.3d at 781 (“We are ... without power to read into the code any interpretation which would apply its sections to leases rather than sales.”).

CONCLUSION

The use of a public pay telephone involves the purchase of services and the use of equipment (by lease or bailment). Because neither of the aspects of such a transaction are within the scope of Article II of the Code, it is unnecessary to determine which aspect predominates. In either case, it is clear that the use of a public pay telephone is not a “transaction in goods” under Article II of the Code, and that the warranties upon which appellant has predicated her complaint do not apply.

Based upon the foregoing reasons, the order of the learned trial court is affirmed.

      . 13 Pa.C.S.A. § 2314 provides in pertinent part:
      (a) Sale by merchant. Unless excluded or modified (section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
      13 Pa.C.S.A. § 2315 provides in pertinent part:
      Where the seller at the time of contracting has reason to know:
      (1) any particular purpose for which the goods are required; and
      (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods; there is unless excluded or modified under section 2316 (relating to exclusion or modification of warranties) an implied warranty that the goods shall be fit for such purpose.

      . On July 19, 1983, appellant commenced an action sounding in tort against appellee and K-Mart Corporation, based on the same incident. Judgment was entered in favor of appellee in the prior suit based upon appellant’s failure to prosecute. At the time of the filing of appellant’s brief in the instant appeal, appellant’s suit against K-Mart was still pending.

      . We note that while the trial court was bound (in ruling upon the demurrer) to accept as true the allegation that appellant lifted the receiver with intent to purchase a telephone call, it was not bound to accept appellant’s conclusion of law that contractual relations were thereby established. Likewise, while the trial court was bound to accept the allegation that appellant was injured as a result of the movement of the receiver, it was not bound to accept appellant’s conclusion of law that the pay telephone was a tangible movable good and that her use of the pay telephone was therefore a "transaction in goods” under the Code. Finally, we note that appellant’s other allegations in support of this contention concern immaterial facts, and therefore, require no further discussion.

      . Appellee did not file an appellate brief. However, the record on appeal does contain a copy of the Memorandum of Law in Support of Defendant’s Preliminary Objections which was filed in the trial court. It is from that document that appellee’s arguments have been gleaned.

      . Appellee cited Lauk v. General Telephone Co., 300 So.2d 759 (Fla. App.1974), wherein a Florida District Appeals Court affirmed an order dismissing a complaint based on alleged breaches of UCC implied warranties arising out of the furnishing of telephone services. We note, however, that in Lauk it was the plaintiff and not the court who characterized the telephone company’s activities as the provision of services rather than the sale of tangible movable goods. 300 So.2d at 761. Consequently, the issue of whether the telephone company’s activities could be construed as a transaction in goods was neither raised nor decided in Lauk.

      . Appellant argued in the trial court that the act of lifting the telephone receiver with intent to purchase a telephone call established contractual relations between appellant and appellee. Appellee, however, argued that because coins had not yet been deposited in the pay telephone, no contractual relations had been established and no sale completed. Undeniably, the use of pay telephones, like purchases in self-serve supermarkets, presents unique questions as to when the offer and acceptance process are complete. Cf. Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949).
      Although the trial court apparently agreed with appellee’s analysis regarding the absence of an effective acceptance, it did not sustain appellee’s demurrer upon that ground. Rather, the trial court held that, even if contractual relations had been established, the contract was not a transaction in goods as that term is used in the Code. Because we affirm that holding, we need not rule upon appellee’s more problematic alternate basis for affirmance.

      . For this reason, the instant case is distinguishable from Lobianco v. Property Protection, Inc., supra, cited by appellant. In Lobianco, the plaintiff had purchased a burglar alarm system from the defendant. The issue in Lobianco was whether the purchase of the system, or the installation and maintenance of the system, Was the predominant feature of the transaction. Such is not the case here; Lobianco is, therefore, inapposite.

      . A purchaser's use of telecommunications services and telecommunication equipment extends for a period of time. The purchaser is then charged for that use at a set rate for a given time interval. Thus, what appellant characterizes as distinct product (telephone time) is, in reality, only the time period during which the lease or bailment takes place.

      . We note, however, that a nominal lease or bailment may be treated as a sale when it is coupled with an option to purchase for token consideration at the end of the lease or bailment term. See e.g. Asco Mining Co. v. Gross Construction Co., 3 U.C.C.R.S. 293 (Pa.C.P. 1965); see also In re United Nesco Container Corp., 47 B.R. 230 (Bkrtcy Pa. 1985). However, this rule is clearly inapplicable to the instant case.

      . We note that we do not decide here whether the general law of negligence or the provisions of Restatement (Second) of Torts §§ 344 (business liability) or 402A (strict liability for defective product) would apply to the facts alleged in the instant complaint. See e.g. Leichter v. Eastern Realty Co., 358 Pa.Super. 189, 516 A.2d 1247 (1986) (reviewing scope of § 344 liability); Schriner v. Pa. Power & Light Co., supra (reviewing scope of § 402A liability). None of these theories of liability were available in the instant case because the applicable two year statute of limitations expired prior to the filing of the instant action. This perhaps explains appellant’s attempt to bring the incident under the warranty provisions of the Code which carry a four year statute of limitations. Thus, it is important to note that we have not held that a telephone company is free from liability for injuries caused by a defective pay telephone; rather, we have merely affirmed the trial court’s ruling that liability does not arise under the warranty provisions of the Code.