author: BROSKY, Judge.

text:
    582 A.2d 1352
    COMMONWEALTH of Pennsylvania v. Dennis HUDGENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 3, 1990.

      James R. Protasio, Williamsport, for appellant.
    Robert W. Ferrele, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s convictions for simple assault, reckless endangerment, terroristic threats, and possession of an instrument of crime.

Appellant presents the following issues for our review: (1) whether the evidence was insufficient to establish that the victim was in fear of imminent serious bodily injury; (2) whether the evidence was insufficient to establish that the victim was threatened; (3) whether the evidence was insufficient to support appellant’s conviction for possession of an instrument of crime; (4) whether the verdict was against the weight of the evidence; (5) whether the trial court erred in refusing to award appellant a new trial because of the Commonwealth’s failure to furnish appellant with exculpatory evidence; (6) whether trial counsel was ineffective in failing to call certain witnesses or appellant to testify on his behalf; (7) whether trial counsel was ineffective in failing to request that the case be continued; and (8) whether trial counsel was ineffective in failing to obtain a copy of the tape of the testimony presented at the preliminary hearing so that it could be used to impeach the Commonwealth’s witnesses. For the reasons set forth below, we affirm the judgment of sentence.

Before addressing the merits of these issues, it is first necessary to recount the relevant facts of this case. On April 26, 1989, appellant, Dennis Hudgens, and some friends visited the Space Station Video Game Arcade located near the intersection of Campbell and West Edwin Streets in Williamsport, Pennsylvania. One of the members in Hudgens’ group was Joey Lebert, who was approximately thirteen years of age at this time. Lebert was dressed in a Ninja-type of costume on this occasion. A group of teenagers, who were approximately fifteen to eighteen years of age, were also present in the arcade. Some of the teenagers began to tease and harass Lebert with regard to his Ninja costume. As a result, Lebert left the arcade. The teenagers followed Lebert outside the arcade and continued their teasing. Lebert then observed the teens moving closer to him and he began to fear for his safety. In order to avoid a confrontation with the group, Lebert ran into a nearby alley.

Appellant subsequently became aware of the difficulties which Lebert encountered with the group of teens. Consequently, he exited the arcade and asked one member of the group, Clyde Swope, whether he was responsible for harassing or teasing Lebert. Swope denied making any comments to the boy. Hudgens disbelieved Swope and continued to exchange words with him. A heated argument ensued, during which Hudgens informed Swope that he was going to get him. In support of his threat, Hudgens then removed a sword which was concealed in his trousers. The sword resembled the type of weapon used by Samurai or Ninja warriors. Hudgens menaced Swope with the sword by holding it within five to six inches of Swope’s body and by touching Swope’s hand with the sword. Upon seeing the sword, Swope became frightened and attempted to back away from Hudgens. One of Swope’s friends, Shalamar/Casper Brown, then entered the melee in order to protect Swope from possible harm. At this point, Brown and Hudgens argued, until Hudgens sheathed his sword and walked away, with another of his friends, Forrest Mull.

Delores Mayer, who happened to be driving by the arcade at the time of the incident, witnessed the altercation between Swope and Hudgens and notified the police. Following Mayer’s call, the police arrived at the arcade and observed Hudgens and Mull walking away from the arcade. Upon seeing the police, Hudgens gave the sword to Mull and directed him to run away, while Hudgens ran in another direction. Although Hudgens managed to escape, Mull was apprehended by the police. Hudgens was later arrested, however.

Following a jury trial, appellant was convicted of the above charges on October 19, 1989. Post-trial motions were timely filed by trial counsel, and were denied by the trial court. Appellant was thereafter sentenced on February 5, 1990, at which time he was represented by new counsel. A timely motion to modify sentence was then presented to the trial court; this motion was also denied. This appeal followed.

The first three issues raised by appellant all involve questions pertaining to the sufficiency of the evidence. In reviewing claims of this type,

we must view the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine whether the jury could reasonably have found all of the elements of the crime to have been established beyond a reasonable doubt____

Commonwealth v. Parker, 387 Pa.Super. 415, 418-419, 564 A.2d 246, 248 (1989) (internal citations omitted). We shall address appellant’s sufficiency questions with this standard in mind.

The first issue raised by appellant pertains to his conviction for simple assault. Under the Crimes Code, “a person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A. § 2701(a)(3). Appellant contends that the Commonwealth failed to prove simple assault because the evidence was insufficient to establish that the victim was in fear of imminent serious bodily injury.

For support, appellant relies on testimony presented at trial which indicated that the victim wanted to continue the confrontation with appellant and that he was only prevented from doing so by his friend, Shalamar Brown. The specific testimony to which appellant refers was offered in support of his defense by his friend, Forrest Mull. Defense counsel asked Mull to describe the manner in which the victim, Clyde Swope, acted following the incident between Hudgens and Swope. Mull answered:

Well, he was upset. He was like yelling at his friends, “I ain’t afraid of Dan, let him back out”, and he was just in a rage. He was, like, very upset because they was threatened.

N.T., Volume I, at p. 63. Defense counsel then asked Mull whether it would be accurate to say that Swope wanted to continue to fight with Hudgens, and Mull responded in the affirmative. See id., at pp. 63-64.

We fail to discern how this testimony supports appellant’s position. First, we note that the victim offered testimony which seems to contradict the version offered by Mull. Swope testified that after Shalamar Brown had intervened, appellant put his sword away and then pulled it out again before finally sheathing the sword and leaving the area. See N.T., Volume I, at p. 21. Thus, the facts adduced at trial could equally support an inference that appellant, rather than Swope, was the continued aggressor. However, even if we were to accept Mull’s testimony, we are unable to comprehend how it rendered the evidence insufficient, since this portion of Mull’s testimony only described Swope’s conduct after he had been separated from Hudgens and after Hudgens had left the area. While Mull’s observation indicated that Swope may have been full of youthful bravado after the threat posed by the sword had been removed, it does not indicate whether the victim was threatened by or was put in fear of imminent serious bodily injury while he faced an opponent armed with a Samurai sword. Accordingly, we find the victim’s conduct after Hudgens left the area to be irrelevant to our determination as to whether the evidence was sufficient to sustain appellant’s conviction for simple assault.

Appellant also suggests that the victim was not placed in fear of imminent serious bodily injury because Swope did not testify that appellant attempted to strike him with the sword or that appellant held the sword in a striking position. At trial, Swope testified that appellant threatened that he would get Swope. See N.T., Volume I, at pp. 14 and 22. Swope further indicated that appellant menaced him with the sword by holding it within five to six inches away from Swope’s hand and by touching Swope’s hand with the sword. See N.T., Volume I, at pp. 14 and 21-22. In addition, the victim testified that he was afraid that appellant would stick him with the sword. See id., at p. 16. Forrest Mull corroborated this aspect of Swope’s testimony and admitted that Swope seemed scared or frightened of appellant. See id., at pp. 41 and 64. Swope’s observation of the events was also supported by the testimony of Delores Mayer, who observed the fight as she was driving by the arcade. Mayer stated that she saw “a person with a sword or a saber aggressively approaching another man who was backing off and stepping off the curb”. See id., at p. 30. Mayer further testified that from her vantage point, appellant appeared to be more hostile and aggressive than the victim, who attempted to back away from the fight. See id.

Although appellant acknowledges this testimony, he cites Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843 (1985) for the proposition that a mere touch is insufficient to sustain a conviction for simple assault. See Appellant’s Brief at p. 7. We find the type of conduct at issue in Fry to be significantly different from appellant’s conduct in this case. In Fry, the defendant grabbed a ten year old girl by putting his arms around her and lifting her off of the ground. The child attempted to resist her attempted abduction by kicking and screaming. Fortunately for the child, her actions attracted the attention of safety patrol members who ran to assist her. Upon seeing the patrol members, Fry released the child. On appeal, this court found the evidence of simple assault under § 2701(a)(3) to be insufficient because the defendant did not threaten the child with physical harm, and did not strike the child or use any other physical means to subdue the child. Fry, 341 Pa.Super. at 336-338, 491 A.2d at 845.

Unlike the defendant in Fry, appellant verbally threatened that he would get the victim. See N.T., Volume I, at pp. 14 and 22. Further, appellant supported his ability to carry out the threat by wielding a sword in close proximity to the victim’s body. See id., at pp. 14 and 21-22. Also, several witnesses to the incident testified that the victim was visibly frightened by the appellant. Because this type of conduct was absent in Fry, we find it to be factually distinguishable from the situation presented in this case. Therefore, after careful review of the testimony presented at trial, we hold that there was ample evidence to sustain appellant’s conviction for simple assault.

Appellant next challenges the sufficiency of the evidence with regard to his conviction for terroristic threats. In order to be found guilty of this offense, a person must “threaten to commit any crime of violence with [the] intent to terrorize another or ... in reckless disregard of the risk of causing such terror____” 18 Pa.C.S.A. § 2706. Thus, in order to prove a violation of this provision, the evidence must show: (1) that a threat to commit a crime of violence was made; and (2) that the threat was communicated with the intent to terrorize or with reckless disregard of the risk of causing such terror. See Commonwealth v. Anneski, 362 Pa.Super. 580, 583, 525 A.2d 373, 375 (1987), allocatur denied, 516 Pa. 621, 532 A.2d 19 (1987). Appellant contends that the evidence was insufficient to sustain his conviction for this offense because the victim was not threatened.

Appellant believes that the victim was not threatened because he merely told the victim that he would get him and did not indicate that he would kill the victim. In essence then, appellant argues that because he did not specifically inform the victim of the precise violent crime he intended to commit, the statement cannot be deemed to be a terroristic threat. Although appellant has not directed us to any authority in support of this novel proposition, we believe the following authorities to be instructive in resolving this issue.

In Commonwealth v. White, 232 Pa.Super. 176, 335 A.2d 436 (1975), the defendant informed his victim that he was “going to grab her” and proceeded to carry her into an abandoned building where he then pinned her against a wall and lifted her skirt. Before the defendant could proceed further, the victim called out to a neighbor for help. At that point, the defendant released the victim. On appeal, we affirmed the defendant’s conviction for terroristic threats, despite the fact that the defendant never informed his victim of the nature of the crime which he threatened to commit. In reaching this result, we looked to the totality of the circumstances surrounding the utterance of the threat, and concluded that the defendant’s conduct, in addition to his statement, constituted a threat to commit the crime of rape. See White, 232 Pa.Super. at 184, 335 A.2d at 439.

An analysis similar to the one adopted in White was followed in Commonwealth v. Ferrer, 283 Pa.Super. 21, 423 A.2d 423 (1980). In Ferrer, the defendant made a statement which was much like the one made by appellant in this case. Specifically, Ferrer informed a detective that the detective’s actions were “going to cost him one of his kids” and that he was “going to get” either the detective or one of his children. Although Ferrer did not precisely explain to the detective which precise crime of violence he intended to commit, we again looked to the nature of the threat as well as the surrounding circumstances, and found that the defendant threatened to commit murder or aggravated assault against the victim or his children. See id., 283 Pa.Super. at 25, 423 A.2d at 425.

As made clear by this court in White and Ferrer, it is _ unnecessary for an individual to specifically articulate the crime of violence which he or she intends to commit where * the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement. In applying this test to the facts of this case, we find sufficient evidence of appellant’s threat to the victim. Like the defendant in Ferrer, appellant informed his victim that he was going to get him. See N.T., Volume I, at pp. 14 and 22. Further, appellant unsheathed a sword and held it in close proximity to the victim’s body. See id., at pp. 14 and 21-22. Based on these facts, it can certainly be inferred that appellant threatened to stick the victim with the sword, and thereby cause death or serious bodily injury to the victim.

Appellant next argues that the evidence was insufficient to sustain his conviction for terroristic threats because he lacked the ability to carry out his threat. Specifically, appellant alleges that he was unable to make good on the threat because the sword had a “flat” blade which was unable to cut the victim. As recognized by this court, “[njeither the ability to carry out the threat nor a belief by the person threatened that it will be carried out is an essential element of the crime.” Anneski, 362 Pa.Super. at 587, 525 A.2d at 376. Rather, the harm sought to be prevented by the statute is the psychological distress which follows from an invasion of another’s sense of personal security. Anneski, 362 Pa.Super. at 583, 525 A.2d at 375; see also 18 Pa.C.S.A. § 2706, Official Comment. Because appellant’s ability to carry out his threat does not render the evidence insufficient, we find appellant’s argument to be without merit.

Appellant’s final argument with respect to this issue is that his statement to the victim constituted a mere “spur-of-the-moment excited utterance” which resulted from anger. See Appellant’s Brief at p. 8. As correctly recognized by appellant, § 2706 was not designed to penalize spur-of-the-moment threats which arise out of anger in the course of a dispute. See 18 Pa.C.S.A. § 2706, Official Comment; see also Anneski, 362 Pa.Super. at 585, 525 A.2d at 376, upon which appellant relies. We believe that the facts of this case are easily distinguishable from the scenario described in Anneski, however.

In Anneski, the victim threatened to run over the defendant’s children with her automobile, if the children did not get out of her way. In response to the victim’s threat, the defendant responded that if the victim attempted to harm her children, she would get a gun and use it. Under these facts, we held that the statement was a spur-of-the-moment type of threat which was made during a heated argument. In this case, however, the victim never threatened to do anything to or otherwise inflict harm on appellant. More importantly, appellant possessed a weapon at the time the threat was made. Thus, unlike the victim in Anneski, the victim in this case was subjected to the precise type of psychological harm and impairment of personal security which the statute seeks to prevent. In view of these circumstances, we decline to accept appellant’s characterization of the statement as a mere spur-of-the-moment type of threat, and hold that the evidence presented at trial was sufficient to sustain appellant’s conviction for terroristic threats.

In his third issue, appellant challenges the sufficiency of the Commonwealth’s evidence with respect to his conviction for possessing an instrument of crime. A person is guilty of this offense if it is established that “he possesses any instrument of crime with [the] intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). This provision further defines an instrument of crime as: “(1) [a]nything specially made or specially adapted for criminal use; or (2) [a]nything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” 18 Pa.C.S.A. § 907(c). Appellant believes that the evidence was insufficient to support his conviction because the Commonwealth did not prove that the sword was a weapon commonly used for criminal purposes or that it was specially made or adapted for criminal use. For support, appellant relies on cases involving common items which are innocuous when used for their proper purpose. See Commonwealth v. Myers, 376 Pa.Super. 41, 545 A.2d 309 (1988), allocatur denied, 522 Pa. 588, 561 A.2d 741 (1989) (pair of scissors held not to be an instrument of crime); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987), allocatur denied, 516 Pa. 640, 533 A.2d 712 (1987) (an ice pick and a pair of scissors held not to be instruments of crime); Commonwealth v. Rodriquez, 316 Pa.Super. 203, 462 A.2d 1310 (1983) (an ordinary razor blade held not to be an instrument of crime); and Commonwealth v. Durrant, 501 Pa. 147, 460 A.2d 732 (1983) (a pool cue held' not to be an instrument of crime). We find these decisions to be inapposite, however.

Unlike the type of items described in the cases cited by appellant, swords and other related weapons were invented for the sole purpose of killing, maiming or inflicting injury upon another individual. Moreover, a sword is not the type of item which is routinely found in most households. Therefore, we find that the cases relied upon by appellant offer no guidance as to whether a sword can be considered to be an instrument of crime. Unfortunately, we have been unable to discover any caselaw which either includes or excludes a sword as an instrument of crime. Nevertheless, we are constrained to disagree with appellant’s assertions that a sword cannot be an instrument of crime.

As noted above, a sword is a type of instrument which was designed for the sole purpose of inflicting death or bodily injury. When a sword is used to menace the public during the commission of a crime, it becomes a tool that has been adapted for criminal use. Further, while we recognize that a sword may not be the type of item which criminals routinely utilize in today’s modern society, we believe that swords, like knives and other similar weapons are instruments that are commonly utilized for criminal purposes when they are possessed by an individual in a manner which is inappropriate under the circumstances. Certainly, the possession and display of Samurai swords in one’s home or at a martial arts competition or exhibition would be an appropriate and lawful use of the instrument. However, the sword was not possessed or displayed in such fashion in this case. Instead, the sword was utilized by appellant in order to menace and terrorize members of the public. When a sword is possessed and utilized in the perpetration of a crime, we believe that it falls within the definition of an instrument of crime.

The fourth issue presented for review involves appellant’s challenge to the weight of the evidence.

The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion____ Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative____

Commonwealth v. McLean, infra, 396 Pa.Super. at 27-28, 578 A.2d at 6-7, quoting Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989) (internal citations omitted). We shall address appellant’s claim in accordance with this standard.

Appellant believes that the verdict was against the weight of the evidence because he presented uncontroverted testimony that he was acting to protect Joey Lebert. In essence, appellant contends that the verdict was against the weight of the evidence because appellant was justified in his use of reasonable force to protect Lebert. We disagree.

In support of his argument, appellant first suggests that the verdict was against the weight of the evidence presented because the Commonwealth failed to present any evidence to rebut appellant’s justification defense. See Appellant’s Brief at p. 10. While the Commonwealth bears the burden of disproving a claim of justification beyond a reasonable doubt, a jury is not required to believe the testimony offered by a defendant in support of his claim. See e.g., Commonwealth v. Carbone, 524 Pa. 551, 560, 574 A.2d 584, 589 (1990). In this case, the Commonwealth chose to rely on Lebert’s testimony in order to rebut the inferences of justification raised by appellant. In considering this testimony with regard to appellant’s defense, the jury was free to accept or reject the interpretation suggested by appellant. The jury’s rejection of appellant’s interpretation of the testimony does not render the verdict contrary to the weight of the evidence, however. Therefore, we find this argument to lacking in merit.

The real question at issue here is whether the weight of the evidence supported appellant’s defense of justification. In general, justification is available to a defendant where “the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.” 18 Pa.C.S.A. § 503(a)(1). However, a defendant may only use this defense where certain criteria have been met. Under the Code, the use of force is permitted to protect another person where:

(1) the actor would be justified under section 505 of this title (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
(2) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) the actor believes that his intervention is necessary for the protection of such other person.

18 Pa.C.S.A. § 506(a)(l)-(a)(3). Further, the use of force for self-protection is only justifiable where “the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” 18 Pa.C.S.A. § 505(a). In applying these provisions to the facts of this case, we conclude that appellant has failed to establish a defense of justification.

At trial, Joey Lebert testified that a group of teenagers “picked” on him by making funny noises, calling him names, and teasing him about his Ninja costume. See N.T., Volume II, at p. 4. However, Lebert could not identify the particular individual who was responsible for the harassment, and instead referred to the entire group. See id. Lebert then stated that he left the arcade because of the harassment, and when the group continued to approach him, he ran down the alley. See id., at pp. 4-5. Lebert also testified that he was not present during the altercation between Swope and Hudgens. See id., at p. 5.

In this case, the harm sought to be avoided by appellant was the prevention of any injury to Lebert. Although Lebert was subjected to verbal taunting, there was no evidence that any member of the group of teens, including Swope, directed any type of unlawful force against Lebert. Thus, if Lebert had acted in his own defense, he would not have been privileged to use reasonable force against Swope. Moreover, if such force had been used against him, Lebert was obliged to retreat to a place of safety, see 18 Pa.C.S.A. § 505(b)(2)(H), and did in fact retreat in order to avoid any confrontation with his tormentors. In view of the fact that Lebert had left the area and was no longer in danger, we fail to discern how appellant’s use of force was justified in this case. Accordingly, we conclude that the verdict was not against the weight of the evidence presented at trial.

The fifth issue raised by appellant is whether the trial court erred in refusing to award him a new trial because of the Commonwealth’s failure to disclose evidence which he believed to be exculpatory. Specifically, appellant claims that a knife which was allegedly in the Commonwealth’s possession at the time of trial was exculpatory because it would have bolstered appellant’s justification defense. Under Pa.R.Crim.P. 305 B(l), the Commonwealth is required to disclose to defense counsel all items which have been requested by a defendant, provided that they are material to the case. The items which must be disclosed include “[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth ... [and] any tangible objects ... or other tangible evidence.” Pa.R.Crim.P. 305 B(l)(a) and (f). However, in order to be awarded a new trial, appellant must prove that the evidence was exculpatory and material to his case, and that the Commonwealth’s failure to disclose the evidence was prejudicial. See Commonwealth v. Woodell, 344 Pa.Super. 487, 490, 496 A.2d 1210, 1212 (1985) and Commonwealth v. Murphy, 493 Pa. 35, 45-46, 425 A.2d 352, 357 (1981). Appellant has failed to show that the evidence was material and exculpatory and that the Commonwealth’s failure to disclose the evidence prejudiced his defense.

Exculpatory evidence has been defined as “evidence which extrinsically tends to establish [a] defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.” Commonwealth v. Redmond, 395 Pa.Super. 286, 298, 577 A.2d 547, 552 (1990); see also Woodell, supra. Further, “[ejxculpatory evidence includes ‘material that goes to the heart of the defendant’s guilt or innocence ____’” Redmond, supra, quoting United States v. Starusko, 729 F.2d 256, 260 (3d Cir.1984). “Evidence is material ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” Redmond, 395 Pa.Super. at 298, 577 A.2d at 553, quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40, 57 (1987).

As applied to this case, we are unable to discern how a knife found in Shalamar Brown’s possession was exculpatory or material with regard to the incident involving the victim and appellant. At trial, Swope testified that he was unarmed. See N.T., Volume I, at p. 13. In addition, Delores Mayer corroborated Swope’s testimony and verified that Swope appeared to be unarmed. See id., at p. 30. Although appellant does not dispute this testimony, he refers us to the testimony of Forrest Mull who testified that another individual handed a knife to Brown, after Brown intervened in the fight. See N.T., Volume I, at p. 40. The record indicates that appellant was only charged with regard to the acts against Swope; he was never charged with any offenses relating to Brown. Thus, the fact that Brown possessed a knife following the incident between Swope and appellant does not tend to exculpate appellant of the offenses pertaining to Swope. Moreover, Brown’s possession of the knife did not appear to be material to appellant’s defense. At trial, the jury was made aware of the fact that Brown possessed a knife during the incident. Nevertheless, the jury proceeded to reject appellant’s defense theory and convicted him of the charges. Consequently, it is evident that even if the Commonwealth had disclosed the information to appellant, it is highly unlikely that the result would have been different.

Even if we were to assume that the knife was exculpatory and material to appellant’s defense, we fail to see how appellant was prejudiced by the Commonwealth’s failure to disclose the evidence. As stated above, appellant was never charged with any offenses relating to Brown. Further, the Commonwealth never attempted to utilize the existence of the knife in an unfair manner. Cf. Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983) (in which the Commonwealth failed to disclose tangible evidence to the defendant and then used the evidence to impeach the defendant’s testimony.). In fact, the Commonwealth never made any references to the knife at trial. Rather, the sole reference to the knife arose during defense counsel’s cross-examination of Forrest Mull, in which Mull stated that Brown was armed with some type of weapon. See N.T., Volume I, at p. 40. Because defense counsel apparently was aware of the fact that Brown was armed during the incident and brought this to the attention of the jury through Mull’s testimony, we conclude that the Commonwealth’s failure to disclose the knife was not prejudicial to appellant’s defense. See Murphy, supra; see also Commonwealth v. Fromal, 392 Pa.Super. 100, 123, 572 A.2d 711, 723 (1990).

Appellant’s remaining claims of error all relate to the effectiveness of trial counsel. Claims of ineffective assistance of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client____ The law presumes that counsel

was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Nelson, 389 Pa.Super. 417, 423, 567 A.2d 673, 676 (1989). We shall address appellant’s claims of ineffectiveness with regard to this standard.

Appellant first asserts that trial counsel was ineffective for failing to call two witnesses who would have supported his version of the incident. See Appellant’s Brief, at p. 13. Unfortunately, appellant has neither identified these witnesses in his brief, nor has he described the testimony which these witnesses would have provided; instead, appellant merely asserts that the witnesses would have corroborated his version of the incident. As stated by our Supreme Court,

[i]n making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum.

Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). In view of appellant’s failure to identify the witnesses and describe the substance of their testimony, we decline to find trial counsel ineffective for failing to call the witnesses.

Appellant next contends that trial counsel was ineffective for failing to request a continuance so that the attendance of the witnesses at trial could be secured. This claim must likewise fail. First, we are unable to address this question because there is no indication that the witnesses could not have been obtained at the time of trial, thereby rendering a continuance unnecessary. More importantly, we are unable to evaluate trial counsel’s effectiveness with regard to this claim because of the deficiencies discussed above, to wit: appellant’s failure to identify the witnesses and make an offer of proof with regard to the substance of the witnesses’ proposed testimony. Accordingly, we find appellant’s second claim of ineffectiveness to be without merit.

The final claim of ineffectiveness asserted by appellant relates to trial counsel’s failure to obtain copies of the preliminary hearing tape, which would have been used to impeach the Commonwealth’s witnesses. Although appellant claims that trial counsel could have confronted the witnesses with their inconsistent statements, he fails to offer any description as to the manner in which the testimony of the witnesses at the preliminary hearing was materially different or inconsistent with the testimony presented at trial. Under these circumstances, we decline to find trial counsel ineffective for failing to procure the preliminary hearing tape. See Durst, supra.

In sum, we hold that the evidence was sufficient to sustain appellant’s convictions for simple assault, terroristic threats and possession of an instrument of crime. Further, we find that the verdict was not contrary to the weight of the evidence presented at trial. We also concluded that appellant was not entitled to receive a new trial due to the Commonwealth’s failure to disclose exculpatory evidence. Finally, we determined that trial counsel was not ineffective. In view of the above discussion, none of the issues raised by appellant warrant the arrest of judgment or grant of a new trial trial. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2701(a)(3).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 907(a).

      . In his brief, appellant sets forth this issue in terms of whether the trial court erred in refusing to grant his request for a mistrial because of the Commonwealth's failure to disclose certain exculpatory evidence prior to trial. See Statement of Questions, Appellant’s Brief, at p. 3. In view of the fact that appellant never requested that the trial court declare a mistrial, we believe that this question, as set forth in appellant’s statement of questions, is incorrectly phrased. However, in the argument section of his brief, appellant discusses the question of whether the trial court erred in failing to grant him a new trial based on the Commonwealth’s failure to disclose the exculpatory evidence. See Appellant’s Brief, at pp. 11-12. In view of appellant’s error, we have restated the issue, in the manner set forth above, so that it will conform to the discussion contained in appellant’s brief.

      . Lebert testified that he and appellant enjoy a close, father-son type of relationship. See N.T., Volume II, at pp. 6-7.

      . See note 9, infra, for a description of a Ninja. In view of the fact that Ninjas were employed as spies and assassins, the Ninja costume was colored in black and was similar in style to a karate-type of outfit. However, the Ninja costume includes a black hood. See N.T., Volume I, at p. 37. See also, You Only Live Twice (MGM/United Artists 1967), a James' Bond movie which featured Ninja assassins.

      . Samurai warriors were members of the military class in feudal Japan. See Webster’s New World Dictionary 1187 (3rd College ed. 1988). Samurai warriors served as the retainers for the daimyos, or Japanese feudal lords. See id. These warriors traditionally wore two swords and lived by the Code of Bushido. See id. See also, Miyamoto Musashi, The Book of Five Rings (1988 ed.), which further describes the philosophy of the Samurai and the Code of Bushido.

      . Ninja is a term used to describe a member of a class of feudal Japanese warriors who were highly trained in the art of stealth. See Webster’s New World Dictionary 917 (3rd College ed. 1988). Because of their specialized training, Ninjas were frequently employed as spies and assassins by the daimyos, who were the Japanese feudal lords. See id. We take judicial notice of the fact that examples of Ninja-type . martial arts and clothing have been portrayed in films such as You Only Live Twice (MGM/United Artists 1967) (a James Bond movie), and more recently in The Teenage Mutant Ninja Turtles (Golden Harvest/New Line Cinema 1990) movie and television cartoon series.

      . Serious bodily injury is defined as “[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. Further, bodily injury is described as an "[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.

      . Death or serious bodily injury would fall within the definitions of the crimes of murder (18 Pa.C.S.A. § 2501) or aggravated assault (18 Pa.C.S.A. § 2702), both of which have been held to be crimes of violence. See Ferrer, 283 Pa.Super. at 24-25, 423 A.2d at 424-425.

      . Appellant’s argument that the sword could not cause injury is contradicted by the record. Forrest Mull, who previously owned the sword, admitted that the sword was capable of causing injury if used with sufficient force. See N.T., Volume I, at p. 39. In addition, Mull stated that the sword could probably be used to smash an orange. See id. Therefore, we believe that the sword was capable of inflicting injury.

      . Contrary to appellant’s belief about the use of samurai swords, we take judicial notice of the fact that there is at least one instance where a sword of this type has been utilized for criminal purposes. During the past few months, an individual dressed in a Ninja-type costume has used a samurai sword to attack citizens in the Pittsburgh area. Whenever a sword is used in this manner, it cannot seriously be maintained that a sword is not an instrument of crime.

      . With respect to this matter, we recognize that there is some dispute as to whether issues raising weight of the evidence claims may be reviewed on appeal. See e.g., Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). However, this court has recently held that such claims may be reviewed in a limited context. See Commonwealth v. McLean, 396 Pa.Super. 23, 28 n. 4, 578 A.2d 4, 7 n. 4 (1990) (opinion by Olszewski, J.), and Commonwealth v. Jenkins, 396 Pa.Super. 395, 397-401, 578 A.2d 960, 961-963 (1990), (opinion by Olszewski, J.). In view of the reasoning set forth in McLean and Jenkins, we shall address appellant’s weight of the evidence claim.

      . This knife was found in the possession of Shalamar Brown after the incident between Hudgens and Swope.

      . We note that in his post-trial motions, appellant identified three witnesses who should have been called. These witnesses were: Shalamar Brown, Michelle Mosier and the owner of the Space Station Arcade. However, he did not describe the substance of their testimony in the post-trial motions.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    582 A.2d 1363
    CITY OF PHILADELPHIA to Use of PHILADELPHIA HOUSING DEVELOPMENT CORPORATION, Appellee, v. Fern NOVICK. Appeal of PHILADELPHIA HOUSING DEVELOPMENT CORPORATION.
    Superior Court of Pennsylvania.
    Submitted Sept. 24, 1990.
    Filed Dec. 4, 1990.

      Rebecca R. Woodside, Philadelphia, for appellant.
    Susan B. Eiseman, Philadelphia, for City of Philadelphia, appellee.
    Drew Salaman, Philadelphia, for Novick, appellee.
    Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Philadelphia County denying reimbursement for certain costs incurred to obtain possession of property purchased at a sheriffs sale by the appellant, Philadelphia Housing Development Corporation (PHDC). We reverse.

The facts of the case were stated properly in the appellant’s brief at page 3 as follows:

In September of 1987, the City of Philadelphia filed a Municipal Lien in the sum of $281.04, representing the property taxes owed for the tax year of 1985 by Fern Novick, Appellee, owner of 2802 N. Ringold Street. As a result of the above tax delinquency, the property was sold by the Sheriff of Philadelphia County at sheriff tax sale on May 18, 1988 to ... PHDC____ Appellant acquired the property through its TOPSS Program under which it acquires tax delinquent tenant-occupied properties at sheriffs sale. Due to the tenant’s failure to pay for her use of the property, Appellant was forced to evict the tenant and incurred costs in the amount of $374.03 to recover possession of the property.
Appellee filed the Petition to Redeem, to which Appellant responded, requesting reimbursement for eviction costs from the redemptor, Appellee.
The lower court granted Appellee’s Petition to Redeem, however, the court did not require the redeeming party to reimburse the purchaser, Appellant, for its costs to obtain possession of the property.

Further, as recounted in the appellant’s Memorandum of Law in support of its answer and new matter at page 2, it appears that the appellant:

... acquired the subject property at sheriff’s sale for the sole purpose of transferring title to the tenant, Carmen Thompson, under the TOPSS Program. Thereafter, the tenant failed to cooperate, make settlement, or otherwise pay for her use of the property. Whereupon, [Appellant] commenced an action in Philadelphia Municipal Court to evict the tenant. Judgment was entered in favor of [Appellant], Landlord, on November 1, 1988. An eviction of the tenant was scheduled to take place on Tuesday, February 7, 1989. [Appellant] arranged for a maintenance crew and a representative of [Appellant] to be present, and hired a moving and storage company to execute the Writ of Possession.
Another tenant, Claudette Thomas, was found to be in possession of the property and informed [Appellant] that she was paying rent to [Appellee], and that to the best of her knowledge the previous tenant had been evicted by [Appellee].

By order of court dated September 27, 1989, the appellee’s Petition to Redeem was granted, but the appellant’s request to have its “eviction costs” reimbursed by the appellee was denied because the court believed that the appellant’s “right to possession had not vested at the time these costs were incurred.” An appeal to this Court was filed thereafter.

The sole issue, one that has received no prior appellate consideration, is whether the appellant’s expenditure of monies to evict a tenant from property secured at a sheriff’s sale is recoupable from the redemptor as “other charges and necessary expenses of the property” under 53 P.S. § 7293(a).

The statute in question provides in relevant part:

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within one year from the date of the acknowledgment of the sheriff’s deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriff’s deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments. If both owner and creditor desire to redeem, the owner shall have the right so to do only in case he pays the creditor’s claim in full. If more than one creditor desires to redeem, the one who was lowest in lien at the time of sale shall have the prior right, upon payment in full of the claim of the one higher in lien. Within the year, one who was lower in lien may redeem from one higher in lien who has already redeemed, and the owner may redeem from him; and so on through out, in each case by paying the claim of the one whose right was higher; and one higher in lien may redeem from one lower in lien, unless his claim is paid; but in each case the right must be exercised within the year.

The Act of May 16, 1923, P.L. 207, § 32, as amended, 53 P.S. § 7293(a).

This Court has had occasion in the past to interpret Section 7293(a). In doing so, we have held that reasonable expenses incurred to make property habitable are reimbursable under Section 7293(a). See City of Philadelphia v. Watkins, 343 Pa.Super. 380, 494 A.2d 1135 (1985).

Additionally, in City of Philadelphia v. Chin, 354 Pa.Super. 115, 511 A.2d 214 (1986), a panel of this Court reaffirmed Watkins’ allowance of expenses for making premises purchased at a sheriffs sale habitable and to bring the same into compliance with municipal codes. Further, the Chin Court ruled, consistent with the statute in question, that expenses incurred to purchase insurance, pay taxes, and provide utilities to the property should be reimbursed by the redemptor.

Of interest to this Court are the observations made in Chin that:

We reject Chin’s contention that appellant can recover only those costs necessary to keep the property in the same condition in which it existed at the time when it was purchased at sheriff’s sale. Otherwise, a dilapidated, uninhabitable building will have to remain in that condition until the period for redemption has expired. Such an interpretation would be absurd; it would ignore the interests of the parties, the municipality and the public. We will not place such a limitation upon the right to recover amounts expended to make the premises habitable.
The statute also required that a redeeming property owner reimburse the purchaser for the cost of drawing, acknowledging, and recording the sheriff’s deed; for taxes paid by the purchaser, for the insurance coverage purchased for the property; and for the cost of providing water, sewer, gas and electric power to the property. Even appellee agrees that these items are properly the subject of reimbursement. Moreover, they are to bear interest at the rate of ten (10%) percent per annum from the dates on which payments were made. The redeeming property owner, however, is entitled to a credit for the rents collected by the purchaser prior to redemption.

354 Pa.Super. at 119, 511 A.2d at 216.

The fact that the title to the property sold is a defeasible one and does not mature into a legal title until the period of redemption has expired, see, e.g., Easton v. Sulkin, et ux., 19 D. & C. 152 (Northampton County, 1933), is not dispositive of the question as to what expenses incurred with regard to property sold at a sheriffs sale are recoverable as “necessary expenses” made during the redemption period. This is so whether the costs involved were to maintain the property, render it habitable or expended as incidental to the operation of private or commercial property.

If the point in time when legal title came into fruition for the purchaser was the pivotal stage in deciding when expenses made were recoverable, then no costs incurred prior to the one year redemption period could be recouped. This is just not so under Section 7293(a). Accordingly, we deem a case-by-case approach is the prudent course to pursue in this redemption arena.

From our review of the few cases on the issue at hand, as well as the applicable statute governing redemption, we make the initial observation that Section 7293(a) permits a redemptor to receive credit for “rent” received by a purchaser in determining what monies are due and payable to regain possession of the property sold at sheriffs sale. If such is the case, and there is no disputing the accuracy of such a statement, then, logically, it would appear permissible for a purchaser to obtain the cost incurred in either collecting or generating “rent”. Otherwise, the property could merely lay dormant if no tenant resided there during the redemption period, lest the purchaser be fearful that costs expended to rent the property would not be recoupable upon redemption. Another possible scenario, replayed instantly, would be where the premises were leased but the tenant was not paying rent. Should the purchaser let the property remain as is (without any money being paid) until the redemption period expired? We think not, for no business person would acquire realty and permit it to sit idle.

When property is sold at sheriffs sale, it is done so because of a delinquency in the payment of taxes. The governing body initiating the sale does so to place the property back on the tax roles. Were we to preclude a purchaser the ability to recoup monies expended to make purchased property profitably or inhabited by rent-paying tenants, we would be “short-circuiting” one of the beneficial objectives of implementing a sheriffs sale, i.e., generating of monies to fuel government, not to mention making the property productive.

If we were to hold to the contrary, then the purchaser at a sheriffs sale would be advised to do nothing to the property obtained (during the redemption period) for fear that efforts to make the property habitable or profitable would be for naught. There is nothing in the law that requires that the “status quo” be maintained during the redemption period. See Chin, supra; Watkins, supra. If such were the case, buildings that had fallen into disrepair and were uninhabitable would remain so. As recounted in the Chin and Watkins cases, expenses to improve property are to be reimbursed by the original owner seeking to redeem said property.

Likewise, if the redemptor is entitled to credit for “rents” received by a purchaser during the redemption period, and property may be improved and need not lay dormant so as to maintain the status quo during the same time-frame, we find that the purchaser’s efforts to “evict” non-paying tenants from the purchased property to make it productive and rent generating should be an item of cost subject to being repaid by the redemptor.

This Court is of the mind that, given our prior rulings allowing reimbursement to a purchaser for money expended to make a piece of property habitable, and, of necessity, rentable as commercial property, we are not dissuaded from our position to allow expenses incurred to evict a delinquent tenant from property purchased at a sheriffs sale to be recouped by a purchaser from the redemptor.

Order reversed.

      . We would note that the City of Philadelphia’s involvement in the instant appeal is tangential at best. For example, (1) the City of Philadelphia is not a party to this action; (2) this proceeding did not arise under a code of the municipality; (3) this proceeding did not involve an interpretation of a statute regulating the affairs of a public authority, the Home Rule Charter, an ordinance, or a statute relating to elections; and (4) this appeal is not from a government agency. Accordingly, 42 Pa.C.S. § 762(a)(4) is inapposite and does not necessitate our transferring the case to Commonwealth Court.
      The City of Philadelphia’s appearance on appeal is to urge Superior Court to permit tax sale purchasers of property to recoup, pursuant to 53 P.S. § 7293, sums expended to obtain possession during the one year redemption period. This argument does not convert the City of Philadelphia into a party so as to divest Superior Court of jurisdiction to hear the dispute. The brief filed by the City of Philadelphia is one similar to those submitted by amicus curiae.


author: HUDOCK, Judge:

text:
    582 A.2d 1367
    Richard G. VINCENT, Appellant, v. FULLER COMPANY and Gatz Corporation, Individually and Jointly, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1990.
    Filed Dec. 4, 1990.
    Petition for Allowance of Appeal Granted June 7, 1991.

      Craig J. Smith, Easton, for appellant.
    Robert C. Brown, Easton, for appellees.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the order of the Court of Common Pleas of Northampton County dismissing Appellant’s statutory causes of action for discriminatory lay-off and discriminatory discharge as time-barred and granting Appellee’s motion for summary judgment as to all of the common law causes of action. We affirm in part and reverse in part.

The complicated facts and procedural history, as ably summarized by the trial court, are as follows: On December 17, 1973, Appellant was hired by Fuller Company (Fuller), a wholly-owned subsidiary of GATX Corporation (GATX), for the position of Manager of Engineering Services. After seven years, Appellant became Manager of Administration of the Process, Products, and Projects Division. In November 1982, Fuller eliminated Appellant’s position pursuant to an alleged workforce reduction. Consequently, Appellant was “laid-off” effective December 3, 1982. At the time of the lay-off, Appellant was fifty-eight years old. On December 3, 1984, Appellant’s lay-off became a permanent termination. Appellant contends that his lay-off and subsequent termination occurred solely because of his age rather than being economically motivated.

On March 15, 1983, Appellant filed a verified complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination under the federal Age Discrimination in Employment Act (ADEA). The EEOC forwarded a copy of this complaint to the state Human Relations Commission (HRC). The EEOC did not proceed to process the complaint under the ADEA. On December 3, 1984, Appellant filed suit in federal court, alleging age discrimination in violation of ADEA. He discontinued this suit, without prejudice, on February 26, 1985.

By letter dated February 19, 1985, Appellant, through counsel, filed a copy of his complaint which had been previously filed with the EEOC, with the HRC. The letter, which was not verified by Appellant, stated that Appellant’s lay-off became permanent on December 3, 1984. Thus, the letter stated that, for purposes of the Pennsylvania Human Relations Act (PHRA), December 3, 1984 was the date the most recent discriminatory action took place. On May 11, 1985, Appellant filed an amended verified complaint with the HRC.

On February 26, 1985, Appellant filed an original complaint in the Court of Common Pleas of Northampton County alleging, inter alia, causes of action for age discrimination and breach of implied contract terms of employment. An amended complaint was filed on June 13, 1985. By order of court (Franciosa, J.) dated November 22, 1985, the complaint was dismissed for lack of subject matter jurisdiction.

A second amended complaint was filed on March 4, 1986, alleging, inter alia, age discrimination and breach of implied contract of employment. In this complaint, Appellant averred that Fuller and GATX provided him with publications entitled “GATX Personnel Policies and Practices,” and that Fuller and GATX’s breach of various provisions therein formed the basis, in part, for the causes of action. Preliminary objections were filed on March 24, 1986. By order of court (Van Antwerpen, J.) dated June 26, 1986, all preliminary objections were dismissed.

On October 11, 1988, Fuller and GATX filed a motion for summary judgment. The trial court (McFadden, J.) granted the motion for summary judgment only as to the claims relating to policy 4.01 of the publication, dealing with nonunion salaried employees with ten or more years of service. The motion was denied insofar as it sought dismissal of Appellant’s common law action for breach of contract and the statutory action based on age discrimination.

On February 21, 1989 a pre-trial conference was held and the case was placed on the June 1989 trial list. The case was then continued several times. On October 13, 1989, Fuller and GATX filed a Motion for Pre-Trial Rulings containing a request for summary judgment and a request to reconsider the previous summary judgment decision of Judge McFadden. After hearing argument on the matter, President Judge Alfred T. Williams, Jr., entered a final order on February 28, 1990, dismissing all of Appellant’s outstanding causes of action. It is from this order that Appellant now appeals. Appellant raises several issues which will be dealt with in seriatim.

Appellant first claims that the trial court (Williams, P.J.) abused its discretion in considering Fuller and GATX’s second motion for summary judgment because the filing of such a motion violated Rule 1035 of the Pennsylvania Rules of Civil Procedure in that it improperly delayed the trial of the case. Rule 1035 provides as follows:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

Pa.R.C.P. No. 1035, 42 Pa.C.S.A.

In the absence of specific case law prohibiting the serial filing of motions for summary judgment, this Court will not find that Fuller and GATX’s second motion for summary judgment delayed the trial of the matter. The record reveals that this case was continued several times and that the second filing by the above-mentioned parties did not cause additional delay. This is especially true since the issue regarding whether the alleged violation of the PHRA was time-barred presented a new legal issue and, in the interest of judicial economy, the trial court saw fit to re-examine the motion in light of newly decided case law.

Appellant next claims that the President Judge erred as a matter of law and abused the court’s discretion in reconsidering and reversing the previous denial of Fuller and GATX’s motion for summary judgment, as it applied to Appellant’s common law action for breach of contract. It is generally recognized in Pennsylvania that, “absent some new evidence, it is improper for a trial judge to overrule an interlocutory order of another judge in the same court in the same case.” Farber v. Engle, 106 Pa.Cmwlth. 173, 177, 525 A.2d 864, 866 (1987). Indeed, President Judge Williams recognized this to be the law in Pennsylvania. (Trial Court Opinion at p. 7). The purpose underlying this rule is that there must be some finality to the determination of all pre-trial applications so that judicial economy and efficiency can be maintained. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983).

Another principle of Pennsylvania law, however, becomes applicable in the instant case. Where no further factual developments have occurred from the time of the first pre-trial motion, a second pre-trial motion may be entertained by the trial court to consider “any relevant legal authority decided in the interim period.” See generally Diandrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 456 A.2d 1066 (1983). The underlying purpose of this principle of law is self-evident; if new case law is decided subsequent to an earlier ruling by the Court and it clarifies a principle of substantive law or overrules an important case relied upon by one of the parties at an earlier stage of the proceedings, judicial economy and efficiency is best served by consideration of the new law prior to trial.

In the instant case, the recent decisions of the Pennsylvania Supreme Court in Morosetti v. Louisiana Land and Exploration Company, 522 Pa. 492, 564 A.2d 151 (1989) and Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), are directly relevant to the instant case and were decided and reported between the time of Judge McFadden’s decision and the scheduled time for trial. These cases were relevant on the merits of whether an alleged failure to follow a corporate policy would permit a cause of action for breach of an implied contract. Thus, Judge Williams did not commit an abuse of discretion when he reconsidered the previous motion for summary judgment. We must now consider whether Judge Williams erred in reversing the denial of the motion for summary judgment on the merits.

When reviewing the grant or denial of a motion for summary judgment, an appellate court must accept as true all well-pleaded facts in the non-moving party’s pleadings, depositions, answers to interrogatories and admissions on file, giving the nonmoving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine issues of fact, but also entitlement of judgment as a matter of law. Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 489 A.2d 828 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 481 A.2d 658 (1984). Initially, it must be noted that Appellant’s common law causes of action do not claim that Fuller and GATX breached an implied contract created by corporate policy for permanent and continuous employment, but that the breach was caused by the failure of those companies to find alternative employment for laid-off employees pursuant to Corporate Policy 2.09. Thus, Appellant, in his complaint, is merely urging this Court to find that a failure to follow a corporate policy creates a common law cause of action.

In the recently decided Morosetti, supra, the Pennsylvania Supreme Court restricted the ability of a discharged employee to bring an action against his former employer solely on the basis of a company policy:

it is not sufficient to show [the employer] had a policy. It must be shown that [the employer] offered it as binding terms of employment. A company may indeed have a policy under which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.

Id., 522 Pa. at 496, 564 A.2d at 153.

Nowhere in the record is there deposition testimony or an affidavit filed by Appellant demonstrating that Corporate Policy 2.09 was part of a definite offer of employment when he was hired by Fuller or that that provision was a corporate policy, of which he subsequently learned, which caused him to continue his employment with Fuller as opposed to changing employment or otherwise altering his employment situation. On the contrary, the record contains facts which demonstrate the corporate policy could not reasonably be relied upon by Appellant or other employees to constitute a binding contract offered by Fuller, obligating it to find alternative employment in all cases of laid-off employees. Appellant testified that Corporate Policy 2.09 was contained in a blue three-ring binder which was the property of Fuller and which had been given to him in his management position and to other “key personnel.” (Vincent Deposition 3/2/87 at pp. 77-78, 81-96). Appellant admitted the Policy and Procedure binder was a “management tool” which was not distributed to all employees. (Vincent Deposition 3/2/87 at p. 102).

Thus, the record in the instant case does not reveal any genuine issues of material fact from which a fact-finder could find Fuller’s Corporate Policy 2.09 was communicated as an offer or inducement to all employees to accept or continue employment with the company. Appellant simply had possession of a Policy and Procedure Manual, in his capacity as a management employee, and, on the basis of the record before this Court, cannot successfully maintain that the mere existence of the manual created a binding and enforceable contract which altered Appellant’s at-will employment relationship. The mere existence of a corporate policy, without more, does not create a cause of action for alleged failure to follow that policy. Morosetti, supra; Murphy v. Cartex Corp., 377 Pa.Super. 181, 546 A.2d 1217 (1988). Therefore, Judge Williams did not err in granting the motion for summary judgment.

Appellant also contends that his detrimental reliance on Corporate Policy 2.09 supports a common law cause of action for breach of an implied contract on the theory of estoppel. We do not agree. In Paul v. Lankenau Hospital, supra, the Pennsylvania Supreme Court held that the doctrine of equitable estoppel does not provide an exception to the presumption of an at-will employment relation. Since the doctrine is not available in regard to the termination of employment, it follows that the same doctrine cannot operate to establish a cause of action based upon an employee’s detrimental reliance on a promise of the employer to find alternative employment for a terminated employee. The fact that Appellant’s termination by Fuller was characterized as a lay-off is of no consequence. Appellant cannot rely on this doctrine to support a common law action for breach of an implied contract of employment.

Appellant’s final claim is that the trial court erred as a matter of law and abused its discretion in dismissing his cause of action under the PHRA. As stated above, Appellant first filed a verified complaint with the EEOC on March 13, 1983. The EEOC transmitted this complaint to the HRC shortly thereafter. Such a transmittal constitutes a “filing” with the HRC within the meaning of the PHRA. Lukus v. Westinghouse Electric Corporation, 276 Pa.Super. 232, 419 A.2d 431 (1980). At the time of Appellant’s lay-off, the time limitation for filing a complaint under the PHRA was ninety days. 43 P.S. § 959(g). Since this complaint was clearly not filed within the ninety day deadline, it is time-barred. Thus, any statutory cause of action arising from the alleged discriminatory lay-off is barred by the statute of limitations.

On February 19, 1985, Appellant re-filed the March 13, 1983 complaint with the HRC for age discrimination in the termination of his employment. Along with a copy of the verified complaint, Appellant’s counsel enclosed a letter, which was not verified by Appellant, stating that the alleged discriminatory lay-off had become permanent on December 4, 1984 and that that date represented the most recent discriminatory act by Appellee. Appellant filed an amended verified complaint on May 11, 1985. Fuller and GATX maintain that the date of filing for PHRA purposes should be the date the verified complaint was filed. They contend that the filing of an unverified complaint should not be permitted to toll the limitation period for filing a discrimination complaint and thereby extend the ninety day filing limitation. The trial court agreed, concluded that the jurisdiction of the HRC was never properly invoked, and dismissed Appellant’s cause of action. We conclude that such a dismissal was improper.

In Murphy v. Com., Pennsylvania Human Relations Commission, 506 Pa. 549, 486 A.2d 388 (1985), the Pennsylvania Supreme Court stated:

[b]y statute the jurisdiction of the Human Relations Commission may be invoked by filing a verified complaint which shall set forth the particulars of the discriminatory practice complained of. 43 P.S. § 959. (Citation omitted). A filing which does not comply with these strictures improperly invokes the Commission’s jurisdiction, and is in fact a nullity.

Id. 506 Pa. at 557, 486 A.2d 388, 392 (1985).

Thus, it is clear in Pennsylvania that a complaint filed with the HRC that does not set forth the particulars concerning a discriminatory practice cannot operate to invoke jurisdiction. The question with which we are presented is whether unverified information submitted to the HRC, along with a copy of a previously verified complaint, can operate to invoke jurisdiction. This issue was discussed by the Pennsylvania Supreme Court in Pennsylvania Human Relations Commission v. School District of Philadelphia, 522 Pa. 436, 562 A.2d 313 (1989), wherein it was argued that a verified complaint which was filed with the HRC more than ninety days after an alleged act of discrimination was untimely even though a complaint questionnaire had been completed and received by the HRC six months earlier. Unfortunately, this issue equally divided the Supreme Court and, therefore, we are left without precedential guidance. Cogent remarks in the opinion in support of reversal, however, lead us to conclude that denying jurisdiction to the HRC solely because Appellant provided unverified information, regarding his change in employment status with Appellee, when he re-filed his verified complaint improperly elevates form over substance and denies a complaining party the right to inquiry into alleged discrimination based solely on a technicality.

Admittedly, such a conclusion relies on an analogy to civil practice and procedure in regard to the significance of a verification requirement. See In re Johnson, 509 Pa. 347, 502 A.2d 142 (1985). However, the legislature has seen fit to delegate to the HRC the power to adopt rules and regulations concerning the practice and procedure governing the filing of a complaint under the PHRA. One such regulation specifically provides that any non-conformity in a complaint can be cured by amendment within a reasonable time. 16 Pa.Code § 42.11(d). Thus, the agency’s own regulations permit such an amendment.

Furthermore, one need only look to the relevant federal case law regarding the EEOC, an act which the Pennsylvania Supreme Court has characterized as the “federal analogue” to the PHRA. General Electric Corp. v. Commonwealth, Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). That case law has consistently held that the lack of a verification is not a jurisdictional defect but a technical defect that can be cured by amendment. See e.g., Weeks v. Southern Bell Telephone and Telegraph Co., 408 F.2d 228 (5th Cir.1969) (complaint that was timely filed could be amended after the running of the statutory filing period to include the necessary verification). Thus, the trial court erred in dismissing Appellant’s statutory cause of action as being time-barred.

The Order granting summary judgment is affirmed in part and reversed in part. The case is remanded for further proceedings. Jurisdiction is relinquished.

      . Fuller contended that the company designated the separation from employment a “lay-off” so that Appellant would qualify to receive a vested deferred pension at age sixty-five.

      . In 1986, the statute was amended to extend the filing deadline from ninety to one hundred eighty days. Act of December 16, 1986, P.L. 1626, § 10, 43 P.S. § 959(g) (Purdon 1990).


author: DEL SOLE, Judge:

text:
    582 A.2d 1373
    REED ROAD ASSOCIATES, Appellee, v. John R. CAMPBELL and Janet L. Campbell, H/W, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 19, 1990.
    Filed Dec. 5, 1990.

      James R. Flick, Media, for appellants.
    Jeffrey A. Lutsky, Philadelphia, for appellee.
    Before DEL SOLE, KELLY and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This is an appeal from an order striking a Statement of Claim for adverse possession pursuant to 68 P.S. § 81. Finding that in an Action to Quiet Title, Pennsylvania Rule of Civil Procedure 1066(b)(3), does not allow a trial court to make such determination relative to any document, deed or obligation prior to granting relief to the plaintiff and entering final judgment, we vacate the trial court order striking the Statement of Claim and remand for further proceedings.

Appellants, John and Janet Campbell, own property which abuts the north side of a site purchased by Appellee, Reed Road Associates, for development as a shopping center. Beyond both properties lies Elm Place, an undedicated, unopened paper street to which the Campbells filed a Statement of Claim of Title Acquired by Adverse Possession. As a result of that claim, Reed Road alleges that the development plans for the site it had purchased were disapproved.

Reed Road then filed this action to quiet title alleging, inter alia, slander of title to the portion of Elm Place it claimed by purchase. In a conference called to determine discovery matters, the trial court sua sponte questioned the propriety of the Statement of Claim filed. Briefs on the issue were requested, received, and reviewed. The trial court then ordered that the Statement of Claim be struck by the Recorder of Deeds.

The Campbells have appealed from this trial court order asserting that their right to Elm Place by adverse possession has been denied. Reed Road, contending that the order of the trial court from which appeal has been taken neither disposes of the litigation between the parties nor the merits of the Campbells’ claim for adverse possession, argues that the Campbells’ appeal should be quashed. We decline to do so.

Under the doctrine, enunciated in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and first applied in this Commonwealth in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975), this trial court order, must be considered an appealable collateral order, such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986).

This order is not a final order in the sense that it ends the litigation, fixes the rights, duties, or liabilities of the parties, puts a party out of court, or disposes of the entire case. United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985), Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). However, this does not end our inquiry. As was stated in Bell, supra, 465 Pa. at 228, 348 A.2d 734:

The finality of an order cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. We follow the reasoning of the United States Supreme Court that a finding of finality must be the result of a practical rather than a technical construction. Cohen, supra.

The courts of Pennsylvania have adopted and followed the rule announced in Cohen which recognizes an exception to the final judgment rule. Under Cohen, an order which is separable from and collateral to a cause of action may become appealable under certain circumstances. Those circumstances, all of which must be present, are: (1) the order is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id.

A Statement of Claim is filed by a party who claims title to real estate by adverse possession, and the Statement is recorded and indexed as though it were a deed. Unless this Statement is recorded as provided by statute, any claim against a purchaser without actual notice, is invalid and the party thus claiming adverse possession will not prevail. 68 P.S. §§ 81-86. This right to file a Statement of Claim, which protects a claimant’s interest in real property as against a purchaser without notice during the pendency of what may be lengthy proceedings, is a significant right, and is too important to be denied review until the end of the proceedings.

Thus, if review of the present order were postponed until the end of the proceedings, claimants may easily lose their rights in such disputed property. Those individuals who file a Statement of Claim, are claiming adverse possession of a disputed parcel of property as against the record owner of the land. If the record owner sells this parcel to a purchaser without actual notice during the pendency of the underlying proceedings, a claimant’s rights in the land will be irretrievably lost. It is clear from the statute, 68 P.S. § 86, that without record notice such a claim is invalid, and cannot prevail against the rights of the purchaser.

It may well be that the Campbells’ claim that the Statement of Claim should not have been stricken is meritless, and that because they are presently in possession of the disputed property, any prospective buyer would have actual notice, and there is no need or right to file a Statement of Claim. However, this is irrelevant to the issue of whether the present order should be reviewed by this court prior to termination of the underlying proceedings. Rather, we must examine what the ramifications of denying such an appeal would be, not whether this particular appellant would be harmed by postponing review. 68 P.S. § 86 very clearly states that if the Statement of Claim is not recorded, “no title to lands by twenty-one years’ adverse possession, as aforesaid, shall avail against any purchaser, mortgagee, or judgment creditor for value, without notice, his heirs and assigns ...” Therefore, the claimant will not be able to gain title to the real property, and the claimed right to ownership will be irreparably lost. Furthermore, it is unquestioned that the claimant to real property can not be compensated through payment of damages. Hence, after examining the ramifications of postponing review, it is clear that an order striking a Statement of Claim is appealable as a collateral order. Denial of such review, will easily result in the irreparable loss of rights in property claimed by adverse possession, and therefore, it is a final order under Cohen v. Beneficial Industrial Loan Corp., supra.

The Campbells contend that (1) the statement of claim of title acquired by adverse possession was properly filed, and (2) the trial court was premature in sua sponte striking the statement of claim. We agree.

The trial court determined the filing of the Statement of Claim as improper under the following analysis:

The statute conditions the filing of a Statement of Claim upon two elements. First, the claimant must acquire or claim to have acquired title to the property by twenty-one years’ adverse possession. Second, the claimant must be out of possession of the real estate and file his claim within six months from the time he has withdrawn from possession. Filing a Statement of Claim pursuant to 68 P.S. § 81 (1901) is only proper when both of these requirements are met.

Trial court opinion, 12/4/89 at 2.

We note, however, at least one authority states:
Title acquired by adverse possession may be recorded. If the holder of such title leaves possession, he must record his claim to title within six months thereafter; otherwise his title will not be good as against bona fide purchasers from or judgment creditors or mortgagees of the record title holder (or his heirs) without notice. The Act [of May 81, 1901, P.L. 352, 68 P.S. § 81 et seq.] prescribes the form of the document and the manner in which it is to be recorded (emphasis in the original).

Ladner on Conveyancing in Pennsylvania (4th ed.) § 4.08. Other authorities have also noted that it is “possible to register an ownership obtained by adverse possession.” 7 E.J. Powell and P.J. Rohan (ed.) Law of Real Property 1017 at 91-77. See also Burns v. Mitchell, 252 Pa.Super. 257, 262-263, 381 A.2d 487, 489-490 (1977). We concur in Ladner’s analysis of 68 P.S. § 81 et seq., finding the recording of title acquired by adverse possession to be permissive when the claimant is in possession.

Having concluded that a Statement of Claim may be filed to assert adverse possession by one in possession, we must then look to the effect of the Rules of Civil Procedure governing Actions to Quiet Title, Pa.R.C.P. 1066 et seq., upon a trial court order that the recorder of deeds strike such Statement of Claim.

Pennsylvania Rule of Civil Procedure 1066(b)(3) provides, in pertinent part, as follows:

(b) Upon granting relief to the plaintiff, the court H< * * * * *
(3) shall enter a final judgment ordering the defendant, the prothonotary, or the recorder of deeds to file, record, cancel, surrender or satisfy of record, as the case may be, any plan, document, obligation or deed determined to be valid, invalid, satisfied or discharged, and to execute and deliver any document, obligation or deed necessary to make the decree effective; ... (emphasis added).

We now apply Pa.R.C.P. 1066(b)(3) to the facts and circumstances of the present case. Our review of this record reveals that the trial court has not yet granted relief to the plaintiff nor entered final judgment in this action to quiet title. Consequently, we conclude that the trial court may not order the recorder of deeds to strike the Statement of Claim to Title Acquired by Adverse Possession prior to granting relief to the plaintiff and entering final judgment in the action to quiet title.

Order vacated and remanded. Jurisdiction relinquished.

      . The August 7, 1989, trial court order states:
      AND NOW, this 7th day of August, 1989, it is hereby Ordered that the Statement of Claim of Title Acquired by Adverse Possession of John R. Campbell and Janet L. Campbell, dated April 8, 1987, and recorded in the office for recording of Deeds of Montgomery County in Deed Book No. 4834, Pages 1437-1440, shall be stricken by the Recorder of Deeds.

      . “Slander of title is the false and malicious statement, oral or written, made in disparagement of a person’s title to real property---- The element of malice, express or implied, in making slanderous statements respecting the title of another’s property, is essential to the recovery of damages, and in the absence of proof of such malice the action will fail. While the statement may be false, or made without right, there can be no legal malice and no action will lie, if it is made in good faith and with probable cause. If the statement is made by a stranger, the law presumes malice; but if the party making the statement is himself interested in the matter and announces the defect of title in good faith, either to protect his own interest or to prevent the commission of a fraud, there is no presumption of malice." (Citations omitted.) 5 Thompson on Real Property § 2395 at 194-95.

      . The trial court indicates that the Campbells have consistently maintained their possession of Elm Place has been continuous and uninterrupted. Trial court opinion, 12/4/89 at 2. Hence we question whether Reed Road has, in fact filed the proper action:
      § 120.2. Ejectment and action to quiet title distinguished Generally, ejectment lies where the defendant is in possession of land claimed by the plaintiff; and if the plaintiff is in possession of land claimed by the defendant, the remedy of the plaintiff is by an action to quiet title____ The purpose of an ejectment action, as opposed to an action to quiet title, is not to determine the relative and respective rights of all potential titleholders, but rather to determine the immediate rights between the plaintiff and the defendant involved in that particular litigation. (Citations omitted.)
      22 Standard Pennsylvania Practice (2d) § 120.2 at 169-70.


author: McEWEN, Judge:

text:
    582 A.2d 1376
    Keith W. CRAIG and Joyce S. Craig, His Wife v. MAGEE MEMORIAL REHABILITATION CENTER and Marjorie Hosfeld, M.D. Appeal of MAGEE MEMORIAL REHABILITATION CENTER.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1990.
    Filed Dec. 7, 1990.

      William F. Sullivan, Jr., Philadelphia, for appellant.
    Arnold M. Kessler, Philadelphia, for appellees.
    Before ROWLEY, McEWEN and CERCONE, JJ.
   McEWEN, Judge:

Appellant, Magee Memorial, a defendant in this medical malpractice action, has taken this appeal from an order imposing delay damages entered by the trial court pursuant to an order of this Court. Craig v. Magee Memorial Rehabilitation Center, 386 Pa.Super. 656, 555 A.2d 945 (1988). Appellant, having successfully challenged the constitutionality of former Rule 238 in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), is now before this Court with a multi-faceted challenge to the revised Rule 238. We affirm.

The relevant procedural history of this case commenced when a jury rendered a verdict in favor of the Craigs on February 7, 1983, and against Magee Memorial Rehabilitation Center in the amount of $50,000 for injuries Mrs. Craig suffered as a result of medical malpractice. The trial court molded the verdict to reflect $16,450 in delay damages pursuant to Pa.R.C.P. 238, as Magee Memorial’s offer was never within 80 percent of the verdict. Magee Memorial moved to amend the verdict to exclude any award of delay damages. The trial court denied the motion and this Court, on appeal, affirmed the award. Craig v. Magee Memorial Rehabilitation Center, 341 Pa.Super. 622, 491 A.2d 923 (1985). The Supreme Court granted allocatur and in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) reversed and remanded to the trial court with specific instructions as to the manner of computation of delay damages pending promulgation of a new Rule 238.

The trial court, on remand from the Supreme Court, considered evidence concerning the delay for which plaintiff had been responsible, and reassessed delay damages in the amount of $7,647 against Magee Memorial. Magee again appealed and this Court, on December 28, 1988, in a memorandum decision, vacated the judgment and remanded the case to the trial court for a determination of delay damages in accordance with the revised Rule 238 which had become effective on November 7, 1988. Craig v. Magee Memorial Rehabilitation Center, 386 Pa.Super. 656, 555 A.2d 945 (1988). When the parties, upon remand, stipulated to the entry of a decision on the earlier record, the trial court entered an award of $11,608 using the interest rate provided by the revised rule. Magee Memorial has undertaken the instant appeal from the revised award of delay damages.

Appellant initially contends that Rule 238, as revised, deprives a defendant of property without due process of law whenever the plaintiff’s pre-trial demand is greater than the ultimate verdict. Appellant’s argument, which focuses upon the reasonableness of the plaintiff’s demand as opposed to the ultimate verdict, overlooks both the purpose and the operation of the Rule:

A defendant’s responsibility for the payment of delay damages is not contingent upon the parties reaching an amicable settlement agreement. A defendant is not subject to delay damages where the verdict, decision or award does not exceed his or her written offer by more than 125 percent. Rule 238(b)(1). The fact that a plaintiff refuses to make a demand reasonably close to the amount of the verdict and/or refused to accept a viable offer by the defendant is irrelevant to whether an adequate offer was actually made.

Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 218-219, 562 A.2d 875, 876 (1989), allo, granted, 525 Pa. 616, 577 A.2d 888 (1990). A priori, a defendant is not penalized for the excessive demands of a plaintiff since the reasonableness of a plaintiff’s demand has no bearing on the defendant’s liability for delay damages. Damages are assessed if and only if the defendant’s offer is not within 80% of the verdict. The defendant’s written offer is "... the sine qua non to any tolling of the delay damage period, unless it is established that the plaintiff caused the delay”. Rosen v. Rucker, 905 F.2d 702, 707 (3rd Cir.1990). Since the liability of a defendant for delay damages is based solely upon the amount of the offer and is not influenced in any manner by the demands of the plaintiff, the contention that a defendant’s due process rights are violated where a plaintiff’s settlement demands are unreasonably high is specious.

Appellant next argues that the Pennsylvania Supreme Court exceeded its rule-making authority when it promulgated a rule which purports to be procedural but is, in actuality, substantive. We need not fear to tread to consideration of this contention since our Supreme Court rejected this argument in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), when it held:

“[The Rule’s] purpose and effect are procedural, yet its performance will touch upon substantive rights of both parties. However, the fact that a rule does involve the substantive rights of litigants should not mean that this rule is an inappropriate topic for Supreme Court rule-making. Most rules of procedure will eventually reverberate to the substantive rights and duties of those involved”.

Id., 496 Pa. at 66, 436 A.2d at 155. The Supreme Court when thereafter reexamining the rule in Craig, acknowledged the problems inherent in application of the rule and observed that there was “no point in arguing that a rule that punishes a defendant qua defendant does not smack of a substantive enlargement of duties owed”. Craig v. Magee Memorial Rehabilitation Center, supra, 512 Pa. at 65, 515 A.2d at 1353. As a result, the Court suspended those portions of the Rule it found offensive, and provided for a more even-handed assessment of fault:

“New Rule 238, which was promulgated to effectuate the Craig decision, provides it is the plaintiff’s fault which must be determined before delay damages may be assessed; that fault should be subtracted from the overall delay in the trial and damages should be imposed upon defendants for the remaining period. The fault of the defendant—or lack thereof—is immaterial.”

Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 489, 568 A.2d 1272, 1279 (1980). Accord: King v. Southeastern Transportation Authority, 383 Pa.Super. 420, 424-425, 557 A.2d 11, 13 (1989). This Court, in Sherrill v. Port Authority of Allegheny County, 383 Pa.Super. 104, 556 A.2d 450 (1989), observed that if the sole purpose of Rule 238 was to compensate a plaintiff for money wrongfully withheld by a defendant, the rule could properly be found to be substantive rather than procedural. However, as we stated in Sherrill, the rule has withstood repeated constitutional attack since it was “responsive to the Court’s fundamental goal of prompting meaningful and early settlement so as to unclutter the courts.” Sherrill v. Port Authority of Allegheny County, supra, 383 Pa.Superior Ct. at 119, 556 A.2d at 457-58. We concluded in Sherrill that if a rule so promulgated incidentally affected a substantive right, such an incidental effect alone would not render the rule unconstitutional. See also: Dietrich v. J.I. Case, Co., supra, 390 Pa.Super. at 488, 568 A.2d at 1278. We, therefore, must reject the argument that the Supreme Court exceeded its powers in promulgating Rule 238.

Appellant next argues that Rule 238 as revised is unconstitutional because it deprives a defendant of property without due process of law by creating an irrebuttable presumption that defendants are at fault in causing delays and by characterizing as reasonable only those offers which are greater than 80% of the verdict. While the Supreme Court found that the former Rule 238 did create “an uncontestable presumption that all fault lies with a defendant”, Craig v. Magee Memorial Rehabilitation Center, supra, 512 Pa. at 65, 515 A.2d at 1333, the revised rule “creates no such irreversible presumption; in fact, it specifically provides that delay damages should not be awarded for that time for which plaintiff is responsible for delay or for which defendant has made a reasonable settlement offer.” Knight v. Tape, Inc., 1990 WL 97806 (E.D.Pa.; filed July 9, 1990). The argument of appellant, that defendants are wrongfully deprived of their property by the rule, is further flawed since the defendant may earn interest during the pendency of trial upon those monies ultimately determined to be owed to the plaintiff. Shellhamer v. Grey, 390 Pa.Super. 122, 128-129, 568 A.2d 224, 227-228 (1989). Accord: Knight v. Tape, Inc., supra.

Nor does the fact that delay caused by court congestion may not be subtracted from the period of delay chargeable against a defendant deprive a defendant of his or her property without due process of law “since the defendant has the ability to earn prejudgment interest upon the amount of the verdict, decision or award during the entire period that the plaintiff’s claim is being litigated”. Shrock v. Albert Einstein Medical Center, supra, 386 Pa.Super. at 220, 562 A.2d at 877. Accord: Templin v. Hansford, 737 F.Supp. 27, 30 (E.D.Pa.1990) (“It is not unreasonable or arbitrary to hold a defendant accountable for the delay inherent in the system in which he forces a plaintiff to seek redress when that defendant resists a legitimate claim and thereby enjoys the use of funds during the period of litigation which should have been used to satisfy that claim.”); Knight v. Tape, Inc., supra; Bullins v. City of Philadelphia, 516 F.Supp. 728, 731 (E.D.Pa.1981) (“Plaintiffs are compensated only where the delay is caused by defendant’s failure to make a reasonable settlement offer. The defendant, in contrast, suffers no wrong-—the defendant is not the victim of a tort; delay deprives the defendant of no compensation owed by the plaintiff.”). Thus, in the hopes of removing this incentive for defendants to delay a settlement or timely resolution of the matter and thereby unclog the court system, “the drafters of the revised rule ‘have not allowed for the exclusion of periods of delay not caused by either party’ ”. King v. Southeastern Pennsylvania Transportation Authority, supra, 383 Pa.Super. at 424, 557 A.2d at 13, quoting Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 241, 553 A.2d 443, 446 (1989) (emphasis in original). Accord: Shrock v. Albert Einstein Medical Center, supra, 386 Pa.Super. at 220, 562 A.2d at 877.

Appellant, in its final argument, contends that the rule unduly inhibits defendants from exercising their constitutional right of access to the courts. We fail to comprehend how the rule discourages a defendant from litigating claims when a defendant has the opportunity to earn interest on all monies which may ultimately be found to be owed to the plaintiff and is thereby able to insulate itself from such losses as are occasioned by an award of delay damages. Nor is the rate at which interest is to be calculated under the rule penal since it fluctuates with the market rates and mirrors the fluctuations in the interest being earned by the defendant. Since the revised rule provides for a variable rate of interest, and directs the trial court to conduct a hearing where a factual dispute exists as to responsibility for any portion of the delay, it is spurious to claim that the rule operates to deprive defendants of their constitutionally guaranteed access to the courts of Pennsylvania.

We, therefore, affirm the order of January 26, 1990.

      . The trial court used the ten percent per annum interest rate provided by the original Rule 238 in accordance with the interim procedure outlined by the Supreme Court in its Craig decision.

      . The revised Rule 238(a)(3) provides that damages "shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calender year for which damages are awarded, plus one percent, not compounded”.

      . We would note that the cases upon which this argument is based are inapposite to the case sub judice. The statutes at issue in those cases exacted double damages and/or attorneys’ fees for the failure of defendant/carriers to pay claims. The Supreme Court reasoned that such "extraordinary liability” made submission to excessive demands a preferable alternative and thus could constitute a taking of property without due process of law. St. Louis I.M. & S.R. Co. v. Wynne, 224 U.S. 354, 360, 32 S.Ct. 493, 494, 56 L.Ed. 799 (1912). Accord: Chicago & N. W. Ry. Co. v. Nye-Schneider-Fowler Co., 260 U.S. 35, 47, 43 S.Ct. 55, 60, 67 L.Ed. 115 (1922); Kansas City S.R. Co. v. Anderson, 233 U.S. 325, 329, 34 S.Ct. 599, 600, 58 L.Ed. 983, (1914). The Supreme Court upheld more modest penalties in several contemporaneous cases where the statute in question "... merely provides a reasonable incentive for the prompt settlement, without suit, of just demands____” Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219, 33 S.Ct. 40, 41, 57 L.Ed. 193 (1912). Counsel for the defendant carrier in Yazoo alleged that a statute which imposes a set penalty for failing to settle a claim for damages “equally penalizes the failure to accede to an excessive or extravagant claim____regardless of whether, or how much the recovery falls short of the amount claimed”. The Court in Yazoo discounted this contention. “It has not been penalized for failing to accede to an excessive or extravagant claim, but for failing to make a reasonably prompt settlement of a claim which, upon due inquiry, has been pronounced just in every respect”. Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., supra, 226 U.S. at 219, 33 S.Ct. at 41. Accord: Kansas City Southern Railway Co. v. Anderson, supra, 233 U.S. at 329, 34 S.Ct. at 600.

      . Appellant’s repeated assertion that the Supreme Court in Craig "overruled” the Laudenberger decision is incorrect. The Explanatory Comment to the revised Rule 238, clearly states “the Court in Craig did not 'overrule the rationales of Laudenberger, for they have a vitality of their own in the context of the ends sought.' ”