author: CIRILLO, Judge: TAMILIA, Judge, FORD ELLIOTT, Judge,

text:
    607 A.2d 1094
    Charles DeCOATSWORTH, Appellant, v. Louis E. JONES.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1992.
    Filed May 1, 1992.

      Charles DeCoatsworth, pro se, appellant.
    Allan K. Marshall, Philadelphia, for appellee.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying Charles De-Coatsworth’s petition to strike judgment for the trial court’s lack of jurisdiction. We reverse.

In December of 1983 a dwelling owned by Odessa and Louis Jones, as tenants by the entireties, was listed to be sold at a sheriff’s sale due to the owners’ failure to pay a lien of $1,700.00. Alan Alper, who arranges financing for owners in jeopardy of losing their properties, sent a notice to the Joneses’ dwelling suggesting that he could help. Louis Jones (“Louis”) arranged to have Alper meet him at his house on December 3, 1983, two days before the scheduled sheriff’s sale. Alper took appellant Charles DeCoatsworth, a real estate investor, with him to the meeting with Louis Jones. Louis’s estranged wife and co-owner of the dwelling, Odessa Jones (“Odessa”), was not at the meeting. DeCoatsworth looked over the property and left within a half hour; Alper remained for more than eight hours. At the end of their lengthy negotiations, Louis and Alper ostensibly had an agreement of sale. The agreement provided that Alper, through one of his real estate investors (here, DeCoatsworth) would pay Louis’s outstanding debts on the property, refinance the property, and pay one dollar in consideration. In exchange, Louis signed a blank deed to the property with the understanding that he could continue to live in the dwelling and either pay rent (not to exceed $300.00 per month), enter into a lease-purchase agreement in which the full rental payment would be applied to the purchase price, or buy the property outright.

Alper contacted Odessa, and on December 4, 1983 she signed the blank deed in return for one thousand dollars. The next day Alper paid the judgment lien and stayed the sheriff’s sale. In seeking title insurance for the property, DeCoatsworth learned of two additional mortgages on the property which, under the terms of the agreement of sale, he was obligated, but failed, to pay. On January 5,1984, at settlement, Alper completed the deed by inserting $10,-000. 00.(and not one dollar as agreed) for the amount of consideration. Alper had the deed notarized, and simultaneously assigned and delivered the deed to appellant De-Coatsworth as security for the $1,700.00 DeCoatsworth had already expended.

Later that same month Louis received a statement from DeCoatsworth outlining the three options for remaining in the house. The statement listed the total cost of repurchasing the house from DeCoatsworth as $15,000.00, which was to be repaid over twenty years at fourteen percent interest, the prevailing rate at that time. The $15,000.00 purchase price covered, among other expenses, a $5,000.00 profit for DeCoatsworth, $3,175.00 for Alper’s services in arranging the deal, and the $1,000.00 Odessa received for her signature on the deed. However, none of these charges had been agreed to in the agreement of sale.

Louis refused to pay any of DeCoatsworth’s charges and remained in the house, rent free, until September of 1984 when DeCoatsworth filed a complaint to evict him. Louis counterclaimed against DeCoatsworth, alleging fraud in the transaction that deprived him of his property, and seeking $20,000.00 in damages, plus attorney’s fees. Neither Louis nor DeCoatsworth added Odessa as an indispensable party to the counterclaim, despite the fact that she was co-owner of the entireties property and therefore equally a victim of the alleged fraud. The case was tried in December of 1987 and the jury found in favor of Louis. The jury rejected DeCoatsworth’s eviction claim, permitting Louis to remain in the house rent free, and awarded him $35,000.00 in damages as well. Title to the property, however, remained in DeCoatsworth’s name. The post-trial motions of Louis, to have title transferred to him, and DeCoatsworth, for a new trial or judgment notwithstanding the verdict, were denied. On appeal to this court the panel affirmed the jury’s verdict. DeCoatsworth then appealed to the supreme court, but his petition for allocatur was denied in August of 1990.

Shortly thereafter, DeCoatsworth petitioned motions court, pro se, to strike the trial court judgment for that court’s lack of subject matter jurisdiction over Louis’s counterclaim. DeCoatsworth argued that since Louis’s counterclaim alleged fraud in the transaction that deprived him of title to his property, only the legal entity that was deprived of that title could sue. The property in question was owned by both Louis and his wife, Odessa.

In Pennsylvania, a conveyance to a husband and wife, without more, creates an estate by the entireties. Brenner v. Sukenik, 410 Pa. 324, 330, 189 A.2d. 246, 249 (1963) . “It is their actual marital status and not necessarily the words stated or omitted in the instrument that determines their right to take as tenants by the entireties.” In Re Holmes’ Estate, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964) , citing Ladner on Conveyancing in Pennsylvania, § 1.16 (3rd ed. 1961). Similarly, “the presumption remains that where property is held in the names of husband and wife they hold it by entireties and not as ordinary joint tenants or as tenants in common.” Madden et al. v. Gosztonyi Savings and Trust Co., 331 Pa. 476, 484, 200 A. 624, 628 (1938). An entireties estate may only be severed under limited circumstances. During the lifetime of both spouses the tenancy may be severed only by a joint conveyance of the estate, by express or implied mutual agreement, or by divorce. Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 381 (1986). Neither party may unilaterally sever or destroy the entireties estate. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 173 (1966).

Although Louis and Odessa had been estranged for decades, they had never divorced; title to the house was still in both of their names. Therefore, according to DeCoatsworth, since Louis’s counterclaim addressed the circumstances which also deprived Odessa of her undivided one-half interest in the entireties property, Odessa was a necessary and indispensable party whose joinder was compulsory to establish subject matter jurisdiction. DeCoatsworth’s motion to strike judgment, heard by the original trial judge, was denied. DeCoatsworth was also “ordered to pay the sum of $2,500.00 in attorney’s fees for filing a petition [the] court finds blatantly frivolous.” DeCoatsworth filed this timely appeal.

DeCoatsworth presents four issues for our review:

1. Did both the Trial Court and the Motions Court Err in not recognizing that Odessa Jones was an indispensable party to Louis Jones' counter-claim since the property in question was owned and sold by the entireties of Louis and Odessa Jones, husband and wife?
2. Did the trial Court lack jurisdiction to hear and decide the issues presented in Jones’ counterclaim because of the absence of an indispensable party and, therefore, err in allowing the jury to reach a verdict and in entering judgment?
3. Did the Motions Court err in denying DeCoatsworth’s Petition to Strike Judgment since, because of the absence of an indispensable party, the Trial Court lacked jurisdiction to render that same judgment?
4. Did the Motions Court err in finding DeCoatsworth’s Petition to Strike Judgment to be “blatantly frivolous” and in taxing him $2,500.00 based on that finding?

Louis filed a motion with this court to quash DeCoatsworth’s appeal, characterizing it as “a second appeal.” Louis also requested $2,000.00 in attorney’s fees, pursuant to 42 Pa.C.S. § 2503 and Pa.R.A.P. 2744. The motion to dismiss the appeal was denied. The request for attorney’s fees was referred to this panel to be determined in conjunction with the merits of the case.

A petition to strike judgment may only be granted when a fatal defect appears on the face of the record. Nobel Well Service, Inc. v. Penn Energy, Inc., 348 Pa.Super. 267, 270, 502 A.2d 200, 202 (1985) (citations omitted). In reviewing a denial of a petition to strike judgment, we may only reverse the trial court if it committed an abuse of discretion. “The trial court abuses its discretion when it misapplies the law or when a manifestly unreasonable, biased, or prejudiced result is reached.” Id., 348 Pa.Superior Ct. at 271, 502 A.2d at 202.

In his first issue DeCoatsworth contends that Odessa was an indispensable party to her husband’s suit because their house was owned as a tenancy by the entireties. We agree. An indispensable party is one whose “ ‘rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.’ ” Patwardhan v. Brabant, 294 Pa.Super. 129, 131-132, 439 A.2d 784, 785 (1982) (citations omitted). Here, Odessa’s rights were impaired. Louis, in his name alone, was awarded the $35,000.00 on the counterclaim; Odessa was awarded nothing. As one-half owner of the property, Odessa is entitled to one-half of the value of it. Furthermore, as our supreme court stated, “[o]ne must be joined who otherwise, not being bound by the decree, might assert a demand against the principal defendant which would be inequitable after the latter’s performance of a decree in favor of the plaintiff.” Hartley v. Langkamp & Elder, 243 Pa. 550, 555, 90 A. 402, 403 (1914). The court continued:

A party is indispensable when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience ... The rule as to indispensable parties is neither technical nor one of convenience; it goes absolutely to the jurisdiction, and without their presence the court can grant no relief. Thus where the object of a bill is to divest a title to property, the presence of those holding or claiming such title is indispensable.

Id., 243 Pa. at 556, 90 A. at 403-04; see also E-Z Parks, Inc. v. Phila. Parking Authority, 103 Pa.Cmwlth 627, 521 A.2d 71 (1987), alloc. den. 517 Pa. 610, 536 A.2d 1334 (1987). In this case, the failure to join Odessa did, indeed, lead to a final determination that is wholly inconsistent with equity and good conscience. Hartley, supra.

The essential characteristic of a tenancy by the entirety is that “each spouse is seized per tout et non per my, i.e. of the whole or entirety and not of a share, moiety or divisible part.” In Re Gallagher’s Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945) (citations omitted). “A tenancy by the entireties is a unique form of co-ownership grounded in the common law concept that husband and wife were but one legal entity. ” Clingerman, 513 Pa. at 183, 519 A.2d at 380 (emphasis added). In the seminal case of Magee et ux. v. Morton B. & L. Ass’n., 103 Pa.Super. 331, 158 A. 647 (1931), this court held:

No authority exactly on point has been cited by counsel; nor have we been able to find a precedent in which an estate by entireties was involved. There is however authority for holding that in a joint tenancy the joint tenant must join, and be joined, in real, mixed and personal actions: Milne v. Cummings, 4 Yeates 577. This case is cited in Mobley v. Bruner, 59 Pa. 481, 484, where it is said: “Even joint tenants, who are regarded as having one entire and connected right, and are said to be seized per my and per tout, each having the entire possession as well of every parcel as of the whole, cannot sue separately for themselves, or for the joint benefit of themselves and their fellows, but must join and be joined in all actions respecting the estate: 1 Tho. Co. Litt. 736.” ... These principles apply with even greater force to an estate by the entireties, (emphasis added).

Id., 103 Pa.Superior Ct. at 335-337, 158 A. at 648.

In addition, Pennsylvania Rule of Civil Procedure 2227 provides:

Rule 2227. Compulsory Joinder.
(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
(b) If a person who must be joined as a plaintiff refuses to join, he shall, in a proper case, be made to join as a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder.

Pa.R.C.P. 2227 (emphasis added).

Here, Odessa had more than a joint interest; she was owner of an undivided one-half interest in the entireties property which was the subject of her husband’s counterclaim. Thus, as Louis was alleging fraud in the sale of their entireties property, Odessa’s joinder was compulsory, for under the law governing tenancy by the entirety in the Commonwealth, Louis and Odessa were “an indivisible whole, vested in two persons actually distinct, yet to legal intendment one and the same. Beihl v. Martin, 236 Pa. 519, 522, 84 A. 953, 954 (1912) (emphasis added). Moreover, this court has held, with respect to the parties to a tenancy by the entireties, that

[e]ach one, in the eyes of the law, is considered to be the owner of the entire property and, because of this unity of estate, any action brought for the protection or preservation of such property must be brought in the name of both spouses.

Stitzinger v. Stitzinger Lumber Co., Inc., 187 Pa.Super. 453, 456, 144 A.2d 486, 488 (1958) (emphasis added); see also Brandt v. Hershey, 198 Pa.Super. 539, 541, 182 A.2d 219, 221 (1962) (listing cases in which a plaintiff-wife brought an appropriate action to preserve entireties property but the trial court dismissed the action, pursuant to Pa.R.C.P. 2227, because of the plaintiff’s failure to join her husband as a co-plaintiff.)

Appellee Louis Jones disagrees, contending that once he and Odessa had signed the deed, the tenancy by the entire-ties was destroyed. This contention lacks merit. Louis cannot claim that there was fraud in the transaction which deprived him of title to his house and simultaneously assert that the entireties estate was terminated by his and his wife’s joint conveyance in that same transaction. The very fraud that caused the jury to award Louis $35,000.00 in damages is the same fraud that invalidated the joint conveyance that Louis claims destroyed the entireties estate. The titleholders of the property, Louis and Odessa Jones as tenants by the entireties, were both victims of the fraud in the transaction, and any suit or counterclaim by the titleholder must include Louis and Odessa. Magee, supra; Stitzinger, supra.

It is important to note that when property is held in a tenancy by the entirety

either spouse presumptively has the power to act for both, so long as the marriage subsists, in matters of entireties, without any authorization, provided the fruits or proceeds of such action inures to the benefit of both and the estate is not terminated. But neither may by such action destroy the true purpose of the estate by attempting to convert it or a part of it, in bad faith, into one in severalty.

Gallagher, 352 Pa. at 479, 43 A.2d at 134, citing Madden, supra; cf. Pastore v. Forte, 104 Pa.Super. 55, 158 A. 649 (1932) (holding that when wife sued to preserve entireties property and attempted to join husband as party plaintiff, husband had no right to refuse joinder and no legal right to discontinue his wife’s suit); accord Sielecki v. Sielecki, 107 Pa.Super. 291, 163 A. 375 (1932). Thus, either spouse may lease the property and collect the rent, O’Malley v. O’Malley, 272 Pa. 528, 116 A. 500 (1922), or, when they have reserved the power to do so, either spouse may withdraw funds from an entireties account, Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934), provided that the power to lease or to withdraw funds is used in good faith for the mutual benefit of both tenants. Id. However, “[t]he interest of neither may be affected without notice to both and both are necessary to litigation respecting the assets held by the entireties.” Fitzpatrick v. Fitzpatrick, 181 Pa.Super. 581, 584, 124 A.2d 709, 710 (1956) (citations omitted) (emphasis added); Wallaesa v. Wallaesa, 174 Pa.Super 192, 197, 100 A.2d 149, 152 (1953); Madden, supra.

In a companion case, Jones v. Alper, No. 4901, December Term 1985, Philadelphia, Louis sued Alper for fraud for his part in the transaction. After a trial in June of 1990 (two and one-half years after the DeCoatsworth trial), the jury awarded Louis $1.00 in compensatory damages and $18,000.00 in punitive damages. Alper filed post-trial motions in which he again raised the issue of Louis’s failure to join Odessa, Louis’s wife and entireties co-tenant, as an indispensable party. The Honorable Louis G. Hill determined that when real or personal property held in tenancy by the entireties is the subject of litigation, the absent spouse must be joined as an indispensable party. Without both spouses in the litigation, Judge Hill found, the trial court lacked subject matter jurisdiction. Judge Hill ordered Louis to join Odessa as an indispensable party, but, in Judge Hill’s words, “Counsel for plaintiff blatantly, if not contemptuously, refused to obey this order____’’ As a result of Louis’s refusal to join entireties co-tenant, Odessa, as an indispensable party, Judge Hill granted Alper’s motion for judgment notwithstanding the verdict.

Unlike Alper in the companion case, here DeCoatsworth failed to raise the issue of joining Odessa as an indispensable party at any point in the trial or appeal process. He raised the issue for the first time on collateral appeal before motions court in his petition to strike the trial court judgment. Ordinarily such tardiness would preclude our review. However, Pennsylvania Rule of Civil Procedure 1032 provides in relevant part:

A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, except
******
(2) that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.

Pa.R.C.P. 1032(2) (emphasis added).

There is wide support for rule 1032 in the case law. Our supreme court has repeatedly stated:

It has long been established that unless all necessary and indispensable parties are parties to the action, a court is powerless to grant relief. Reifsnyder v. Pittsburgh Outdoor Advertising Company, 396 Pa. 320, 152 A.2d 894 (1959), and Powell v. Shepard, 381 Pa. 405, 113 A.2d 261 (1955). While this particular objection was not raised in the trial court on appeal, the absence of an indispensable party goes absolutely to the court’s jurisdiction and the issue should be raised sua sponte. (emphasis added).

Tigue v. Basalyga, 451 Pa. 436, 438, 304 A.2d 119, 120 (1973); Pocono Pines Corp. v. Pennsylvania Game Commission, 464 Pa. 17, 21, 345 A.2d 709, 711-712 (1975); Columbia Gas, Etc. v. Diamond Fuel, 464 Pa. 377, 379, 346 A.2d 788, 789 (1975).

In denying DeCoatsworth’s petition to strike the judgment, the motions court relied heavily on the argument that once the process of direct appeals has been completed, in the interest of finality of judgments and judicial economy, no further petitions relating to the same case can be heard. The motions court also believed it lacked jurisdiction to review the issue presented, stating in its opinion: “There is no case law directly on point to confirm this Court’s suspicions that it lacks jurisdiction. Once the Supreme Court denied allocatur a logical and practical interpretation would indicate litigation has been terminated.” We cannot agree.

“[I]t is never too late to attack a judgment or decree for want of jurisdiction. That question is always open.” In Re Simpson’s Estate, 253 Pa. 217, 225, 98 A. 35, 38 (1916). “Such a judgment is entitled to no authority or respect, and is subject to impeachment in collateral proceedings at any time by one whose rights it purports to affect.” Moskowitz’s Registration Case, 329 Pa. 183, 190, 196 A. 498, 502 (1938). “The want of jurisdiction over the subject matter may be questioned at any time. It may be questioned either in the trial court, before or after judgment, or for the first time in an appellate court, and it is fatal at any stage of the proceedings, even when collaterally involved----” In Re Patterson’s Estate, 341 Pa. 177, 180, 19 A.2d 165, 166 (1941) (emphasis added). Moreover, is “well settled that a judgment or decree rendered by a court which lacks jurisdiction of the subject matter or of the person is null and void and is subject to attack by the parties in the same court or may be collaterally attacked at any time.” Com. ex rel. Howard v. Howard, 138 Pa.Super. 505, 508, 10 A.2d 779, 781 (1939).

“For a judgment to be void on its face, one or more of three jurisdictional elements must be absent: the court’s jurisdiction of the parties; the court’s jurisdiction of the subject matter; or the power or authority to render the particular judgment.” Roberts v. Gibson, 214 Pa.Super. 220, 226, 251 A.2d 799, 802 (1969). In the case at hand, due to the unique characteristics of tenancy by the entireties, it appears on the face of the record that Odessa Jones was an indispensable party in her husband’s counterclaim for fraud in the transaction involving their entireties property. As a result of the absence of subject matter jurisdiction, the trial court’s judgment is void on its face, id., and “should have been stricken off by the [motions] court for want of jurisdiction apparent on the face of the record.” Baker v. Carter, 103 Pa.Super. 344, 346, 157 A. 211, 212 (1931). “It is never too late to attack a judgment for want of jurisdiction of either the subject matter or the person for a fatal deficiency appearing on the face of the record.” Mamlin v. Tener, 146 Pa.Super. 593, 596, 23 A.2d 90, 92 (1941).

Here, the defect cannot be remedied by ordering joinder of Odessa for a new trial. The statute of limitations for fraud is two years. 42 Pa.C.S.A. § 5524. Since the alleged fraud occurred in December of 1983, the statute of limitations long ago expired. As Odessa is now barred from pursuing an independent action against DeCoatsworth, her compulsory joinder in Louis’s counterclaim is also barred. See Goodrich Amram 2d § 2232(c):3; see also Moorehead v. Lopatin, 300 Pa.Super. 81, 85, n. 3, 445 A.2d 1308, 1310, n. 3 (1982) (listing trial court cases in which complaints were dismissed or summary judgment granted for failure to join an entireties tenant before expiration of the statute of limitations).

We concur with our brethren in Commonwealth Court who stated:

We are distressed by the posture in which this case reaches our Court We do not understand how this litigation has proceeded to this point without joinder____ The procedural setting in which this case reaches us does not control our disposition on appeal. “The absence of indispensable parties goes absolutely to the jurisdiction, and without their presence the court can grant no relief.” Powell v. Shepard, 381 Pa. 405, 412, 113 A.2d 261, 264 (1955) (citations omitted).... Without the joinder of ... as a party, the court of common pleas was without jurisdiction to enter the decree and must therefore be reversed.

Posel v. Redevelopment Authority of City of Philadelphia, 72 Pa.Cmwlth. 115, 119, 456 A.2d 243, 246 (1983).

We conclude that the motions court misapplied the law in denying DeCoatsworth’s petition to strike the trial court judgment for lack of subject matter jurisdiction for failure to join an indispensable party. Nobel Well Service, supra. A fatal defect appears on the face of the record. Id.; Roberts, supra; Baker, supra. We, therefore, reverse the motions court judgment and remand to the motions court with instructions to strike the trial court judgment. As we have found merit in this appeal, we reverse the motion court’s order levying attorney’s fees against DeCoatsworth, and we deny appellee Louis Jones’s petition for attorney fees.

Order denying petition to strike judgment reversed; order to pay attorney fees reversed; petition for attorney fees denied. Jurisdiction relinquished.

TAMILIA, J., files a concurring statement.

FORD ELLIOTT, J., files a dissenting opinion.

TAMILIA, Judge,

concurring:

I join Cirillo, J. Although normally a memorandum may be cited as authority if it is the law of the case, as concluded by Judge Cirillo, I do not believe a collateral judgment is binding when it is fatally flawed for lack of jurisdiction. I also do not believe a memorandum may be incorporated in a dissenting opinion to be filed with a majority opinion. It would appear to be sufficient to cite and quote the significant holdings of the memorandum.

FORD ELLIOTT, Judge,

dissenting.

Although I might agree with the rationale and the result reached by the majority under different circumstances, I feel I am bound by the decision of another panel of this court on the very issue presented herein and on which the majority disposition rests. On January 10,1992, in the case of Jones v. Alper, No. 832 Philadelphia 1991, the panel of Cavanaugh, McEwen and Olszewski, JJ., filed a Memorandum decision in a companion case. In reviewing Judge Hill’s decision in the court below, which is referenced by the majority herein, the Jones panel determined that Odessa Jones was not an indispensable party to appellant’s personal tort claim for fraud. Upon reviewing the same factual question involving the same parties to the same real estate transaction, I consider myself bound by the prior panel’s decision. For explanatory purposes therefore, I incorporate and adopt the Memorandum decision of January 10,1992 as a part of this Dissenting Opinion.

MEMORANDUM:

Filed January 10, 1992

Appellant, Louis E. Jones, appeals from the order of the Philadelphia County Court of Common Pleas granting appellee, Alan Alper’s, motion for judgment n.o.v. On appeal, appellant contends the trial court erroneously concluded that appellant’s wife, Odessa Jones, was an indispensable party and appellant’s failure to join his wife as a party-plaintiff was a fatal defect justifying entry of judgment n.o.v. We agree with appellant that the trial court erred in granting judgment n.o.v.

In December of 1983, appellant and his wife entered into an agreement of sale with appellee to convey residential property, which they owned as tenants by the entireties. The real estate, located at 1857 Champlost Avenue in Philadelphia, includes a house and surrounding property occupied by appellant. The agreement of sale provided that conveyance was contingent on appellee’s successful stay of a sheriff’s sale. Other provisions of the agreement included appellee’s payment of $1 plus other debts secured by the property, appellant’s promise to make monthly rental payments, and appellant’s option to repurchase the property. At appellee’s request, appellant and his wife signed a blank deed which omitted the grantors’ names, the grantee’s name, the sales price and the description of the property.

Appellee successfully stayed the sheriff’s sale. Appellee then sold his interest in the agreement of sale with appellant to a third party, Charles DeCoatsworth. Appellee filled in the deed, which was blank except for the signatures of appellant and his wife, with names of the grantors as “LOUIS EDWARD JONES and ODESSA B. JONES, his wife, and ALPER ASSOCIATES, INC.” (Thus adding Al-per Associates, Inc. as a grantor to the deed and skipping the transaction in which appellee was the grantee in the sale from appellant to appellee, thereby avoiding payment of transfer tax on the sale.) Appellee also filled in the deed with the name of the grantee as Charles DeCoatsworth, a sales price of $10,000 and a description of the property.

On January 5, 1984, at a real estate settlement, the property was conveyed from appellant, his wife and appellee to DeCoatsworth. The deed was duly recorded the same day. Appellant and his wife did not attend the real estate settlement because appellee did not notify them of the scheduled date. Appellee failed to discharge all the debts secured by the property as promised in the agreement of sale with appellant and his wife. Appellant and his wife did not receive any money from the sale to DeCoatsworth. Appellant continued to live on the property but refused to pay rent.

On December 31, 1985, appellant filed suit against appellee for fraud. During the trial, the court ordered appellant to join his wife as an indispensable party-plaintiff. Appellant failed to comply and the court deferred the matter until after trial. On June 20, 1990, following an eight day trial, the jury found appellee defrauded appellant and awarded appellant $1 in compensatory damages and $18,000 in punitive damages.

Appellee filed several post-trial motions, including a challenge to the court’s subject matter jurisdiction due to appellant’s failure to join his wife as an indispensable party. The court granted appellee’s motion for judgment n.o.v. based on the court’s conclusion that the fraud was committed on the “entireties,” and thus, appellant’s wife was an indispensable party-plaintiff to appellant’s action.

On appeal, appellant contends transfer of the property to DeCoatsworth terminated the tenancy by the entireties and therefore, appellant was entitled to pursue his personal tort claim for fraud without joining his wife.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons could fail to agree that the verdict is improper, and should not be entered in cases where the evidence is conflicting upon material fact. Kearns v. Philadelphia Life Insurance Co., 401 Pa.Super. 292, 295, 585 A.2d 53, 54 (1991). On appeal from an order granting judgment n.o.v., a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Id., 401 Pa.Superior Ct. at 295, 585 A.2d at 54. Trans Canada Credit Corp. Ltd. v. Kosack, 404 Pa.Super. 401, 406-07, 590 A.2d 1295, 1298 (1991).

A tenancy by the entireties exists when real or personal property is held jointly by a husband and wife. Clingerman v. Sadowski, 513 Pa. 179, 183, 519 A.2d 378, 380 (1986). A husband and wife do not own separate interests in entireties property and may not independently sever the estate or appropriate property to the exclusion of the other spouse. Id., 513 Pa. at 181-84, 519 A.2d at 380-81.

A tenancy by the entireties is severed only in certain limited circumstances. Id., 513 Pa. at 183, 519 A.2d at 381. Stop 35, Inc. v. Haines, 374 Pa.Super. 604, 607, 543 A.2d 1133, 1135 (1988). During the lifetimes of the husband and wife, termination of an entireties estate occurs only by their joint acts. Estate of Matson, 374 Pa.Super. 61, 74, 542 A.2d 147, 153 (1988). While both husband and wife are alive, the parties can sever the entireties estate by joint conveyance, divorce, or agreement, express or implied. Clingerman, 513 Pa. at 183-84, 519 A.2d at 381. Stop 35, Inc., 374 Pa.Super. at 607, 543 A.2d at 1135. Fascione v. Fascione, 272 Pa.Super. 530, 535, 416 A.2d 1023, 1025 (1979).

Instantly, we conclude that appellant and his wife’s conveyance, as co-grantors, of the residential property to De-Coatsworth terminated their estate by the entireties. Appellant does not assert any claim in this action on his wife’s behalf. Appellant’s fraud action asserts only his personal tort claim against appellant. This action is not about setting aside the transfer or rescinding the agreement of sale to recover title to the property. Rather, appellant’s action admits the validity of the transfer and elects as a remedy recovery of damages. Silverman v. Bell Sav. & Loan Ass’n, 367 Pa.Super. 464, 475, 533 A.2d 110, 116 (1987). Since the parties’ joint conveyance severed the entireties estate and appellant does not request reinstatement of prior ownership rights, appellant’s wife is not an indispensable party to appellant’s personal tort claim for fraud.

At trial, appellant had the burden of proving appellee committed fraud or intent to defraud by clear, precise and convincing evidence. B.O. v. C.O., 404 Pa.Super. 127, 131, 590 A.2d 313, 315 (1991). The elements of fraud are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. Id. at 131, 590 A.2d at 315. Silver-man, at 367 Pa.Super. 470, 533 A.2d at 113 (1987). The jury found appellee defrauded appellant and awarded nominal compensatory and punitive damages. The trial court’s opinion concluded the verdict was not against the weight of the evidence despite its entry of judgment n.o.v.

A review of the evidence in the light most favorable to appellant, as verdict winner, reveals the court relied on an erroneous legal conclusion in support of its entry of judgment n.o.v. Since the conveyance terminated the estate by the entireties and appellant affirms the conveyance, we believe the court erred in concluding that the fraud was committed upon the entireties and that appellant’s wife is an indispensable party to appellant’s fraud action. Therefore, we conclude the court improperly entered judgment n.o.v. in favor of appellee.

Vacate the entry of judgment n.o.v., reinstate the jury verdict and direct the entry of judgment in favor of appellant.

      . Neither Louis nor Odessa Jones were either notified of or attended settlement. Alper contends neither was necessary as the deed had already been signed by both sellers and assigned to DeCoatsworth.

      . Louis received none of the 110,000.00 consideration listed on the deed.

      . Louis later sought recovery against the notary public who acknowledged the deed, Frankford Abstract Company, and Commonwealth Land Title Insurance Company. The three claims were settled out of court before the companion case, Jones v. Alper, infra at page 1100, went to trial.

      . The original lien against the Joneses' property was for $400.00, assessed by the city of Philadelphia for the Joneses' portion of the cost of repaving their street. By the December 5, 1983 sheriff’s sale, court and sheriffs costs and accrued interest had increased the total to $1,700.00. Under DeCoatsworth’s plan of a 20 year mortgage at 14%, the $15,000.00 repurchase price would ultimately have cost Louis $44,000.00.

      . Only Louis was named in the eviction complaint as Odessa had not lived there for twenty years.

      . 394 Pa.Super. 635, 569 A.2d 1388, No. 2466 Philadelphia 1988, Judge Kelly dissenting. (Reargument denied November 2, 1989). In his dissent, Judge Kelly noted the inconsistency of the jury verdict and stated that he would remand with instructions for Louis to elect either to remain in the house or to retain the $35,000.00 in damages. In a footnote, Judge Kelly noted his displeasure with the trial court’s failure to correct the jury verdict when properly requested to do so by DeCoatsworth in his post-trial motion.

      . In her opinion of July 20, 1988 denying DeCoatsworth’s post-trial motions, the Honorable Sandra Mazur Moss states: "... the facts indicate that before the appearance of DeCoatsworth and Alper on the scene, all Jones owned was an undivided one-half interest in said property, Odessa Jones, his estranged wife, owning the other half." Thus, Judge Moss should have ordered joinder, sua sponte, of Odessa Jones in Louis’s counterclaim of fraud in depriving him [them] of title to the house.
      In denying DeCoatsworth’s motion to strike judgment for lack of subject matter jurisdiction, in her opinion issued August 22, 1991, Judge Moss states that DeCoatsworth knew of Odessa’s existence and should have either joined her himself, called her as a witness, or petitioned the court to join her. Judge Moss also states:
      Moreover, Odessa Jones allegedly received $1,000.00 for her signature on the deed. Testimony indicated the house was worth $35,-000.00 of which Odessa was entitled to $17,500.00. Accordingly, if Odessa Jones had been joined her testimony would have indicated she had been cheated out of $16,000.00 — hardly a helpful allegation to Plaintiffs [DeCoatsworth’s] case.
      Judge Moss’s intimation that DeCoatsworth intentionally failed to join Odessa because it was against his interest to do so mystifies us. The jury found in favor of Louis in the amount of $35,000.00. Whether DeCoatsworth pays Louis the full $35,000.00, or Louis $17,-500.00 and Odessa $16,500.00 is immaterial, because either way he owes $35,000.00. Furthermore, Odessa was not a necessary party to DeCoatsworth’s claim, which was only to evict Louis from the premises. Although Odessa was a co-owner of the house, she had not lived there for twenty years. The burden was on Louis to join her, for Odessa was an indispensable party only to Louis’s counterclaim of fraud in the transaction that deprived him and his wife of title to their house. Judge Moss’s intimation would be more appropriately directed at Louis, for he gained $16,500.00 by failing to join his estranged wife as an indispensable party in his counterclaim.

      . In a footnote to this quotation the Patwardhan court suggested that [i]ndeed, the effect on one’s rights may be of constitutional dimension. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950).
      294 Pa.Super. at 132, 439 A.2d at 785. We, however, are basing our decision solely on the law of the Commonwealth.

      . In her opinion of July 20, 1988, Judge Moss, referring to Louis, states: “nor was he aware that by signing the blank deed Alper would take title and transfer it to DeCoatsworth. His understanding was title would remain with him and the deed was just ‘insurance.’ ” In light of Judge Moss’s comment, which is supported by the record, Louis’s contention is disingenuous, at best.

      . The record clearly reveals that the trial court recognized Odessa was a victim of DeCoatsworth's fraud. As Judge Moss states in her opinion of July 1988:
      Further evidence of fraud occurred when Alper contacted Odessa Jones, Jones' estranged wife. Alper solicited her as co-owner of said property to also sign the deed. In consideration Mrs. Jones received One Thousand Dollars ($1,000.00) which can be interpreted as nothing more than a bribe.

      . In a memorandum decision filed on January 10, 1992, a panel of this court reversed Judge Hill’s decision and reinstated the jury verdict in favor of Louis Jones. The panel stated:
      Instantly, we conclude that appellant and his wife’s conveyance, as co-grantors, of the residential property to DeCoatsworth terminated their estate by the entireties. Appellant does not assert any claim in this action on his wife’s behalf. Appellant’s fraud action asserts only his personal tort claim against appellant. This action is not about setting aside the transfer or rescinding the agreement of sale to recover title to the property. Rather, appellant’s action admits the validity of the transfer and elects as a remedy recovery of damages. Silverman v. Bell Sav. & Loan Ass’n, 367 Pa.Super. 464, 475, 533 A.2d 110, 116 (1987). Since the parties’ joint conveyance severed the entireties estate and appellant does not request reinstatement of prior ownership rights, appellant’s wife is not an indispensable party to appellant’s personal tort claim for fraud.
      In Silverman, the plaintiffs, Louis and Celia Silverman, were misled as to the zoning classification of real estate they purchased. This court found the material misrepresentation to be fraudulent, and stated:
      Recission, of course, is not the only remedy available to a defrauded plaintiff. Where it is determined that recission is not appropriate, or where plaintiff elects to affirm the contract, damages at law may be awarded.

        Id. We are perplexed by the panel's conclusion, and find Silverman to be inapposite. In Silverman, husband and wife were co-owners of the property and husband and wife together sued Bell Savings. Therefore, both could logically — -and legally — affirm the agreement of sale.
      Conversely, in Jones v. Alper, Louis Jones filed suit in his name alone, and according to the panel, reaffirmed the agreement of sale in his name alone. This he cannot do. Louis and Odessa Jones owned the property as tenants by the entireties. Therefore, both Louis and Odessa would have to affirm the contract of sale, for “each spouse is seised ... of the whole or of the entirety and not of a share, moiety or divisible part.” Gallagher, 352 Pa. at 478, 43 A.2d at 133 (emphasis added).

      . In his brief to this court DeCoatsworth claims that, despite different attorneys handling his case over the years, it was not until Alper’s case went to trial that he learned of the concept of indispensable parties and its applicability to tenancies by the entireties.

      . Appellant’s wife did not reside on the property with appellant when they executed the agreement of sale. Appellant and his wife had been separated at least 20 years at the time of transfer. Appellee paid appellant’s wife $1000 for her signature on the agreement of sale and the deed.

      . In September of 1984, DeCoatsworth sued to evict appellant from the property. Appellant received $35,000 in damages on a counterclaim for fraud and retained possession of the property. On appeal to this Court, we affirmed in a memorandum decision, DeCoatsworth v. Jones, 394 Pa.Super. 635, 569 A.2d 1388 (1989) (Table).

      . Appellant also filed suit against F. Russell Curtis, III, the notary public who acknowledged the signatures of appellant and his wife on the deed, the Frankford Abstract Company and its affiliate Commonwealth Land Title Insurance Company, which insured title. These parties settled their claims with appellant prior to trial. At trial, appellant withdrew additional counts alleging unconscionability of contract, and violations of the Installment Land Contract Law and the Federal Truth in Lending Act.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    607 A.2d 1105
    ABRAHAM ZION CORPORATION, Appellant, v. AFTER SIX, INC., Robert C. Rudofker, H.F.C. Corp., f/k/a Harry Fisher Corp., K.R.C. Corp. f/k/a KOKO Rainwear Corp., L.B.I. f/k/a Lebow Bros., Inc., and V-Line Clothes, Inc.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed May 1, 1992.
    Reargument Denied June 16, 1992.

      Leonard Zack, Philadelphia, for appellant.
    David Pittinsky, Philadelphia, for appellees.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying a petition to open the second judgment of non pros entered against plaintiff/appellant Abraham Zion Corporation since the inception of the lawsuit in 1981. We affirm.

On June 30, 1981, Zion entered into an agreement of sale with After Six, Inc. to purchase certain assets related to the manufacture and sale of clothing from its subsidiaries Le-bow Brothers, Inc. (Lebow), and V-Line, Inc. (V-Line). On October 7, 1981, Zion entered into a second agreement of sale with After Six, this time in conjunction with subsidiaries Harry Fisher Corp. (Fisher), and Koko Rainwear Corp. (Koko). On October 4, 1985, Zion filed a one page writ of summons against After Six and its president, Robert Rudofker, Fisher, and Koko, informing them that Zion was filing a civil action against them.

Apparently Zion never filed a complaint or pursued the action in any manner, for the next date on the docket is May 19, 1987, when an order was entered by the Honorable Abraham Gafni for a judgment of non pros “for failure to appear at the Call of the List for assignment to trial.” Zion responded by petitioning the court to vacate the judgment of non pros, which it did on May 26, 1987. In his order vacating the non pros judgment, Judge Gafni also stated that “the case is to be reinstated on the Major Non-Jury trial list where it will appear at the end of that list on 9 — 15— 87.” However, it was not until May 17, 1988, nearly one year after the case was reinstated, that Zion actually filed a complaint. The complaint was against the original four defendants, plus Lebow and V-Line, and demanded a jury trial. The defendants filed their Answer with New Matter on August 1, 1988. To date there is nothing on the docket or in the record indicating that Zion has ever filed an Answer to defendants’ New Matter.

Six months later Zion’s attorney petitioned the court for leave to withdraw, stating that:

Plaintiff has refused and failed to cooperate in the prosecution of this action, has failed to cooperate in investigation of the underlying facts, has refused to fulfill its duty to participate in the discovery process, all despite numerous requests, reminders and demands by counsel, and has thereby made it impossible for petitioner to adequately represent the plaintiff herein.

After issuing a rule to show cause why the attorney’s request should not be granted, the court granted the petition on March 30,1989 and stayed all proceedings for thirty days “to enable plaintiff to obtain substitute counsel.” Zion failed to obtain new counsel, and eleven months later, on February 6, 1990, Judge Gafni entered a second order of non pros for failure to appear at a status listing. Although Zion's previous attorney wrote an informal letter to Judge Gafni requesting that he rescind the non pros, see footnote five, infra, the docket entries indicate that Zion did not file a petition to open the non pros judgment until February 6, 1991, one year later. On April 4, 1991, Judge Gafni denied the petition. Zion then filed a “Motion to Reconsider the Amended Petition to Take Off the Non Pros Judgment,” which was denied on July 1, 1991. Zion filed this timely appeal.

Zion now asks us to consider the following issues:

1. Did the lower court err by failing to schedule a hearing or issue a rule to show cause pursuant to Philadelphia Local Rule *209 and Pa.R.Civ.P. 209 and thereby to receive evidence from petitioner before dismissing a petition to vacate a non pros judgment on the basis of factual determinations?
2. Did the lower court abuse its discretion by denying a petition to vacate a non pros judgment for being untimely where plaintiff had been proceeding without counsel, where plaintiff obtained counsel and filed the petition 34 days after discovering that the non pros judgment had been entered, and where plaintiff had not been previously notified of the judgment by the court or by opposing counsel?
3. Is the entry of a default judgment reasonably explained for purposes of vacating the judgment where plaintiff failed to appear at the call of the list in Philadelphia because plaintiff was unrepresented and without local counsel to monitor trial listings published in the local legal publication and did not receive notice of the status call from opposing counsel or from any source?

Initially, we note that “[t]he granting of a non pros is founded on the equitable principle of laches.” James Brothers Co. v. Union Banking & Trust Co., 432 Pa. 129, 132-133, 247 A.2d 587, 589 (1968); see also Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 406, 581 A.2d 193, 196 (1990), alloc. denied 527 Pa. 650, 593 A.2d 422 (1991). Therefore,

[a] court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death or unexplained absence of material witnesses.

Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 424, 581 A.2d 203, 205 (1990), quoting Carroll v. Kimmel, 362 Pa.Super. 432, 436, 524 A.2d 954, 956 (1987), alloc. denied 517 Pa. 613, 538 A.2d 496 (1988). The summons initiating the lawsuit was filed in October of 1985. The actual complaint was not filed until May of 1988, two and one-half years later, after the entry and removal of the first non pros judgment. Defendants filed their Answer with New Matter three months later, in August of 1988, but to date, three years and nine months later, Zion has yet to file an Answer to defendants’ New Matter.

We think the trial court was correct in entering a judgment of non pros on its own motion when Zion failed to appear for the status call in February of 1990. Zion has shown a great want of due diligence in going forward with its cause of action. Elcomp, supra. Nearly seven years have elapsed since the filing of the summons, but Zion has proffered no explanation, compelling or otherwise, for the inordinate delay. Id.

The type of prejudice necessary to support a non pros judgment is not limited to the death or absence of material witnesses. Any long delay in prosecuting a case “is presumptively prejudicial to all parties even without a specific showing of prejudice on the record.” Supplee v. Com. Dept. of Transp., 105 Pa.Commw. 488, 493-494, 524 A.2d 1002, 1005 (1987), alloc. denied 515 Pa. 626, 531 A.2d 433 (1987); see also Shrum v. Pennsylvania Electric Company, 440 Pa. 383, 269 A.2d 502 (1970). Our supreme court recently determined that “in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket.” Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992). As two and one-half years elapsed between the filing of the defendants’ Answer and New Matter in August of 1988 and the entry of the non pros in February of 1991, under Penn Piping, supra, the delay is presumed prejudicial. A judgment of non pros “is properly entered following a consideration and a balancing of the equities present in a particular case.” Elcomp, 398 Pa.Super. at 425, 581 A.2d at 205; Williams v. Gallagher, 396 Pa.Super. 584, 587, 579 A.2d 403, 405 (1990) (en banc). Here, the entry of the second judgment of non pros was clearly equitable. Id.

Zion now contends that the trial court abused its discretion when it denied Zion’s petition to open the non pros judgment. We do not agree. “A request to open a judgment of non pros is by way of grace and not of right and its grant or refusal is peculiarly a matter for the trial court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident.” Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988). Before a petition to open a judgment of non pros may be granted, the moving party must 1) promptly file a petition to open, 2) present a reasonable explanation or excuse for the default or delay that precipitated the non pros, and 3) establish that there are sufficient facts to support a cause of action. James Brothers, 432 Pa. at 132, 247 A.2d at 589; Valley Peat, 398 Pa.Super. at 406, 581 A.2d at 196; Kophazy v. Kophazy, 279 Pa.Super. 373, 376, 421 A.2d 246, 247 (1980). In addition, as the request to open a non pros judgment is addressed “to the conscience of the court, the court is required to balance the equities and to deny the petition even where all the elements coalesce if the granting of relief would cause undue hardship or prejudice to the opponent.” Narducci, 518 Pa. at 98, 541 A.2d at 325 (emphasis in original).

In denying Zion’s first petition to strike off the February 6,1990 non pros, Judge Gafni found that Zion had failed to allege sufficient facts to establish an underlying cause of action. Since Zion had failed to establish the third essential element, the trial court did not need to consider elements one and two. In filing his motion for reconsideration, Zion attached a copy of its complaint in order to properly allege an underlying cause of action. However, in denying the amended petition, Judge Gafni determined that Zion had failed to promptly file its petition to open, and had also failed to present a reasonable explanation or excuse for not appearing at the status call. We concur.

Zion contends that the trial court abused its discretion in determining that its petition to open filed “34 days after discovering that the non pros judgment had been entered” was untimely. This contention lacks merit. It is well established that “[t]he timeliness of a petition to open a judgment is measured from the date that notice of the judgment is received.” Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974); Rigid Fire Sprinkler Service v. Chaiken, 333 Pa.Super. 213, 218, 482 A.2d 249, 252 (1984). Zion contends it only discovered the second non pros judgment had been entered when it received a copy of a letter, written by opposing counsel to an employee of Philadelphia National Bank, concerning the escrow account established pursuant to the October 7, 1981 agreement of sale. The trial court found this explanation disingenuous, and we do too. It strains credulity to suggest that Zion’s former attorney, who had withdrawn his representation with leave of the court ten months earlier, would risk his professional career by writing a letter to the court on behalf of Zion without first securing Zion’s consent. Therefore, we conclude that Zion received notice of the February 6, 1990 default judgment when its former attorney wrote to Judge Gafni on February 14, 1990.

The petition to open the non pros judgment was filed February 6, 1991, nearly a year later. A petition filed twelve months after notice was deemed to have been received can hardly be considered “promptly filed.” Valley Peat, supra. See also Hutchinson v. Hutchinson, 492 Pa. 118, 124, 422 A.2d 501, 504 (1980) (an eleven month delay is not “prompt”); Ruczynski, supra (ten month delay is not “prompt”); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) (delay of 55 days is not “prompt”); Narducci, supra (petition filed “nearly one month later” was sufficiently prompt); Walt Medical v. Electro-Nucleonics, 400 Pa.Super. 274, 278, 583 A.2d 492, 493 (1990) (“the lapse of only three weeks constitutes prompt filing.”). Thus Zion has failed to meet the first prong of the three-part threshold test for opening a judgment.

Zion next argues that since “plaintiff was unrepresented” and “did not receive notice of the status call from opposing counsel,” the petition to open the non pros judgment should be granted. We cannot agree. “[W]hen cases are listed on the trial list that is published in the Legal Intelligencer, it is incumbent on the parties’ attorneys, or the parties themselves if they are not represented by counsel, to appear at the call of the trial list.” Williams, 396 Pa.Super. at 586, 579 A.2d at 404. (citations omitted) (emphasis added). Zion was “unrepresented and without local counsel to monitor trial listings” by its own choice. When its attorney was granted leave to withdraw, the court stayed all proceedings for thirty days to enable Zion to secure substitute counsel. If Zion did not avail itself of the opportunity afforded by the court, Zion cannot now be heard to complain about the consequences of its own failure to act. “When a party decides to act on his own behalf, he assumes the risk of his own lack of professional legal training.” Wiegand v. Wiegand, 363 Pa.Super. 169, 172, 525 A.2d 772, 774 (1987). Moreover, as Zion had already had one judgment of non pros entered against it in the same case, it was well aware of the risks involved in neglecting an ongoing legal action.

. [4] We also find no merit in Zion’s contention that, pursuant to Philadelphia Local Rule of Civil Procedure 200, opposing counsel was required to notify all other counsel or unrepresented parties of the status call and its failure to do so constitutes a “reasonable explanation” for Zion’s failure to appear before Judge Gafni. Zion is misinformed about Rule 200. In the revision of the Philadelphia Local Rules effective February 1, 1990, the following sentence appears after Rule 215: “Note: New; originally an unnumbered Administrative Regulation dated February 2, 1987 which superceded and replaced suspended former Rule 200.” Clearly, Rule 200 had been rescinded by the time of the February 6, 1990 status call. Therefore, Zion’s reliance on Potter v. Temple University Hospital, 380 Pa.Super. 376, 551 A.2d 1101 (1988) and Nivens v. Chestnut Hill Hospital, 373 Pa.Super 377, 541 A.2d 365 (1988), alloc. denied 520 Pa. 607, 553 A.2d 969 (1988), as authority for the proposition that defense counsel was obligated to notify Zion of the upcoming status call, is misplaced.

Appellant apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or the court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements in order to reach the merits of his claim. Such is not the case. The United States Supreme Court has explained: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law,” Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975). [emphasis in original].

Jones v. Rudenstein, 401 Pa.Super. 400, 404, 585 A.2d 520, 522 (1991). Consequently, Zion has failed to satisfy the second prong of the three-part threshold test.

Zion’s argument that the trial court erred by failing to conduct a hearing or issue a rule to show cause pursuant to Philadelphia Local Rule *209 and Pennsylvania Rule of Civil Procedure 209 is equally without merit. Philadelphia Rule *209, “Evidentiary Hearings on Motions,” provides in relevant part:

(A) Where the Court determines that disputed issues of fact exist to be resolved under the procedures set forth in Pa.R.C.P. No. 209, the Court shall enter a rule upon the parties to proceed in accordance with Rule 209. [emphasis added].

Zion filed a petition to open the second non pros judgment. Under the Pennsylvania system of fact pleading, it was incumbent upon Zion to delineate the three-part test for opening a judgment and then set forth in its petition every act or performance necessary to sufficiently establish those elements. Pa.R.C.P. 1019(a); 4 Standard Pennsylvania Practice § 21:32; see also Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983). Zion did so in its amended petition. However, the trial court did not find Zion’s allegations or explanations credible. The trial court found no disputed issues of fact in the pleadings. Therefore, Philadelphia Local Rule *209 was inapplicable. Our review of the record reveals that the trial court was correct in its assessment; there were no disputed issues of material fact to be resolved. The trial court did not “err” or otherwise abuse its discretion by not issuing a rule or conducting an evidentiary hearing pursuant to Philadelphia Rule *209.

Although Zion alleged sufficient facts to support a cause of action, it has failed to establish that it filed a timely petition to open the February 1990 non pros judgment or to present a reasonable explanation for its failure to appear at the status call. Valley Peat, supra. Thus Zion has failed to meet the threshold test for opening a judgment. Id. The trial court did not abuse its discretion in denying Zion’s petition to open the non pros judgment. Narducci, supra. We, therefore, affirm the trial court’s order.

Order affirmed.

      . As counsel for neither the plaintiff nor the defendants appeared at the Call of the List, the court ordered the non pros on its own motion. See Pa.R.C.P. 218(a).

      . Despite the unusual captioning, we note that Zion’s motion is, in reality, an amended petition to open the non pros judgment.

      . Zion incorrectly labeled his action a motion to “strike off’ the judgment. However, the trial court generously treated the mistake as a labeling error and considered the motion a petition to open judgment. In Kophazy v. Kophazy, supra, this court explained the difference between a petition to strike a judgment and a petition to open a judgment.
      A petition to strike a judgment is a common law proceeding ... and operates as a demurrer to the record ... Thus, a petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters dehors [beyond] the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken, [citations omitted].
      A petition to open a judgment is an appeal to the court’s equitable powers and is a matter for judicial discretion ... In considering a petition to open a judgment, the court may consider matters dehors [beyond] the record ... Ordinarily, a petition to open a judgment will not be granted unless three factors coalesce: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” [citations omitted].
      279 Pa.Super. at 375-376, 421 A.2d at 247.

      . The record does not indicate who sent Zion the copy of the letter.

      . The letter from Zion’s former attorney reads as follows:
      Re: Abraham Zion Corp. vs. After Six Corp., et. al Term & No. 8509-06397
      Dear Judge Gafni:
      It has come to my attention that the above referenced was non pros for failure to appear at a Status Listing on Tuesday, February 6, 1990. Please be advised that I withdrew my appearance upon leave of Court on April 13, 1989, from representation of Abraham Zion Corporation.

        I would respectfully request that Your Honor rescind your Order dated February 9, 1990, and re-list it for another Status hearing in order that Abraham Zion Corporation can have notice to have new counsel appear.
      Very truly yours,

      . The revised rules, reproduced in the Legal Intelligencer on Friday, March 2, 1990, are introduced by the following paragraph:
      The Board of Judges of the Philadelphia Court of Common Pleas at its meeting of Sept. 21, 1989, adopted the Recompilation of Philadelphia's Local Civil Rules. The Recompilation includes all additions, revisions and amendments to the Civil Rules effective through Feb. 1, 1990. [emphasis added].

      . Rule 215, which replaced Rule 200, is entitled “Assignment of Cases in the Trial Division.” The relevant section of the rule provides:
      (A)(2)(d) The practice and procedure relating to the daily operation of the trial lists shall be as directed by the civil calendar judge or the asbestos calendar judge, as appropriate. Such procedures are published daily, with the trial lists, in the Legal Intelligencer.

      Contrary to Zion’s assertion, the Legal Intelligencer currently carries no "Notice to the Bar” informing attorneys involved in upcoming trials that they must notify all other counsel or unrepresented parties of trial dates appearing in the newspaper.


author: FORD ELLIOTT,

text:
    607 A.2d 1111
    Frederick FRITER and Sally Friter, Appellant, v. IOLAB CORPORATION, Johnson & Johnson, Inc., Robert Reinecke, M.D., Jerome Peters, M.D., Estate of Kenneth Michaile, M.D., Deceased, and Kenneth Michaile, M.D., Ltd., and Wills Eye Hospital.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1991.
    Filed May 1, 1992.

      Gerald A. McHugh, Jr., Philadelphia, for appellant.
    Stephen A. Ryan, Bala Cynwyd, for appellees.
    Before JOHNSON, FORD ELLIOTT, and HESTER, JJ.
   FORD ELLIOTT,

Judge:

This is an appeal from the October 18, 1990 order of the Court of Common Pleas of Philadelphia County granting defendant Wills Eye Hospital’s motion for judgment non obstante verdicto. We reverse.

On November 22, 1982, Dr. Kenneth Michaile implanted an Iolab Model 91Z anterior chamber intraocular lens into Frederick Friter’s left eye following cataract surgery at Wills Eye Hospital. This particular intraocular lens rests behind the cornea and serves as a substitute lens after the opacified natural lens has been removed from the eye. At the time of Mr. Friter’s surgery, this particular lens had not yet been approved for general use by the United States Food and Drug Administration (FDA), but rather was the subject of a clinical investigation to determine its safety.

Prior to Mr. Friter’s surgery, Wills Eye Hospital had applied for and received approval to participate in a clinical study involving the Iolab Model 91Z lens. The hospital named Dr. Michaile, a member of its medical staff, to be one of its registered investigators with permission to implant the experimental lens. Both Dr. Michaile, as a registered investigator for Iolab, and Wills Eye Hospital, as an approved institution for conducting experimental studies, were bound by FDA regulations to obtain an informed consent from any patient undergoing experimental treatment. The special five-page consent form explained, among other things, the nature of the clinical investigation, the existence of known complications, and the fact that there were, as yet, undetermined complications.

Frederick Friter was never informed, prior to surgery, that he was about to become a participant in a clinical investigation, and that he was about to have an unapproved medical device implanted in the interior portion of his eye as a substitute for his natural lens. As a result of the surgical implantation of the Iolab 91Z lens, Mr. Friter suffered numerous complications, including filamentary keratitis, chronic and recurrent uveitis, damage to the corneal endothelium, hemorrhage, and the threat of loss of vision in the eye.

As a result of the damage caused to his eye, Frederick Friter, and his wife Sally, filed suit against the Estate of Kenneth Michaile, M.D., deceased, Kenneth Michaile, M.D., Ltd., and Wills Eye Hospital, seeking recovery for the injuries sustained by the unauthorized placement into his eye of an intraocular lens which had not yet been approved and was still under investigation by the FDA. At trial, the Friters asserted claims of battery against Dr. Michaile and Wills Eye Hospital for failing to obtain an informed consent prior to performing surgery on Mr. Friter’s eye. A jury trial commenced in the court of the Honorable Murray C. Goldman on September 19, 1989. On September 28, 1989, the jury returned a verdict in favor of the Friters and awarded Mr. Friter 1.5 million dollars in damages, and Mrs. Friter $250,000 in damages.

Post-trial motions were subsequently filed on behalf of Dr. Michaile and Wills Eye Hospital. The Friters settled with the Michaile defendants. However, the trial court granted Wills Eye Hospital’s motion for a judgment n.o.v. This timely appeal followed. Appellants now raise two issues for our consideration.

I. Did not the trial court erroneously enter judgment in favor of Wills Eye Hospital notwithstanding the jury’s finding that Wills Eye Hospital had assumed the responsibility of supervising the obtaining of plaintiff’s informed consent to surgery involving an unapproved medical device which was under investigation by the defendant hospital?
II. When a hospital agrees to conduct a clinical study of a medical device under investigation by the Food and Drug Administration and selects the surgeons who will carry out the study, and where the hospital admits that it was the hospital’s responsibility to assure that all physicians who participated in the investigations were obtaining informed consent of their patients, is not the hospital liable for damages resulting from the surgeon’s failure to obtain informed consent?

Appellee, in its counter-statement of the questions presented, has framed the issues as follows:

I. Did the trial court correctly refuse to allow the hospital to be held liable for the intentional battery of failing to obtain an informed consent?
II. Did the trial court correctly grant the hospital judgment n.o.v. where the law of this Commonwealth has never imposed a duty to obtain a patient’s informed consent on a hospital?
III. Did the trial court correctly determine that, despite a hospital’s involvement in a clinical investigation, a hospital cannot be held liable for the tort of intentional battery?

In essence, all five questions presented to this court for review focus upon the same central consideration: whether appellants, proceeding against the hospital under a theory of lack of informed consent, pled and proved facts sufficient to justify the jury’s verdict against Wills Eye Hospital, given that this Commonwealth, heretofore, has never recognized an informed consent action against a hospital. It is that central question upon which this opinion will focus.

Instantly, we note that our standard of review when considering an appeal from an order granting a judgment n.o.v. is well settled.

In the review of the record in an appeal from an order of a trial court which has granted judgment n.o.v., we are required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner.

Lowry v. State Farm Insurance Co., 392 Pa.Super. 77, 80, 572 A.2d 700, 701 (1990). The entry of judgment n.o.v. will be reversed whenever the evidence favorable to the plaintiff, and the reasonable inferences therefrom, support plaintiff’s theory of liability. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970). It is with this standard in mind that we address the merits of this case.

The gravamen of appellants’ action against Wills Eye Hospital was that the hospital failed in its duty to ensure that a legally effective informed consent was obtained from Mr. Friter prior to his surgery. Historically, the doctrine of informed consent has been interpreted by appellate courts of this Commonwealth to apply only to surgeons who perform operations without first securing the informed consent of the patient. The unconsented to operation is considered a non-consensual touching, thus giving rise to an action by the patient for a “technical” battery. Doe v. Dyer-Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980). To date, a hospital has never been held liable to a patient under a theory of lack of informed consent. Appellee relies upon this well settled case law to support its position that the trial court’s decision to grant the motion for judgment n.o.v. was correct. However, such reliance ignores the factual context in which these decisions rest. Indeed, were we to view this case as a traditional lack of informed consent action against a hospital, we would be constrained to follow precedent and affirm the trial court’s order. A review of trial court cases which have addressed this issue demonstrates that two prevailing reasons are offered for relieving the hospital of liability.

The first reason offered is that Pennsylvania case law on informed consent is premised on a battery arising out of a medical procedure performed by a physician and therefore the duty to inform as to the risks associated with that procedure only runs as between doctor and patient. This “duty” analysis was summarized by the trial court in Margotta v. Lancaster General Hospital, 47 Pa. D. & C.3d 300 (1987).

Our research uncovered only one Pennsylvania case, Hurley v. Won, 9 [Pa.] D. & C.3d 796 (1979), which dealt specifically with a hospital’s duty to obtain a patient’s informed consent. Hurley at 798, held that there is no duty, in Pennsylvania, on a hospital to obtain consent from a patient prior to an operation.
Our research failed to uncover any Pennsylvania authority for imposing an independent duty on a non-physician to obtain a patient’s informed consent. See, e.g. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971) (allocatur refused); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980) (plurality decision); Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985); and Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986).
Accordingly, we agree with both parties that Pennsylvania does not recognize an independent duty on a non-physician to obtain a patient’s informed consent. Absent the recognition of such a duty, we do not accept plaintiff’s invitation to create such a duty. Under the current state of the law, it appears with certainty that plaintiff can not recover under Count II [informed consent].

Id. at 305-06.

As noted by the trial court in Margotta, Pennsylvania case law reflects the notion that heretofore it is only the physician who has been held liable under a theory of lack of informed consent, for it is the physician who has the duty to obtain the consent for a medical procedure which the physician performs. In the traditional surgical setting, this analysis is well founded. However, the facts of this case are quite different for we are not here addressing the duty owed by a physician to a patient but rather a duty owed by the hospital to the patient. In this instance, the hospital, as a participant in a clinical investigation for the FDA, specifically assumed a duty to ensure that an informed consent was obtained by any patient participating in the study.

In particular, under applicable federal regulations, Wills Eye Hospital had an affirmative duty to “[ajssure that the rights of human subjects are properly protected, that legally effective informed consent is obtained, and that the methods of obtaining consent properly informs the human subject of the significant aspects of the study ...” 21 C.F.R. § 813.66(a)(6) (emphasis added). The legally effective informed consent referred to in the regulations was a specially designed five-page consent which informed the patient of the significant aspects of the study, including any and all special risks associated with an investigational study. As further evidence of the hospital’s duties toward Mr. Friter, appellants offered the testimony of Dr. Thomas D. Duane who was the ophthalmologist in chief at Wills Eye Hospital at the time of Mr. Friter’s surgery. The following excerpt from Dr. Duane’s testimony clearly establishes that the hospital understood it had a duty to ensure that any doctors participating in investigational studies were obtaining the special informed consents required by the FDA.

Q. What I was asking you was, was it part of the function of the Institutional Review Committee to make sure that the investigating doctors were obtaining the informed consent of their patients?
A. Yes.
Q. How, if you know and if you remember, did the Institutional Review Board go about making sure that the investigating doctors were obtaining informed consent before implanting experimental lenses in their patients’ eyes?
A. We would have a discussion of it before it was instituted as a rule and then it would be professionally up to the record room to tell us whether such a form is being used, and they check on each record because they know it might be taken home by the ophthalmologist.
Q. All right. So what you’re saying is that there was a rule at the hospital that a person in the record room was to check to make sure that the special consent form was in the file?
A. For an investigational study.
Q. For an investigational study.
A. Yes.
Q. And if the consent form was not in the file, what was the record custodian supposed to do?
A. Report it to the ophthalmologist in chief, and I would get the guy and the hospital director and ask him why the hell he hadn’t filled out the form.
Q. Okay.
A. It’s very important.
Q. Was that an ongoing function throughout the investigational study?
A. Yes.

Trial transcript, 9/19/89 at 323-24.

Further evidence of the hospital’s duty presented itself through one of the hospital’s own witnesses. Dr. Jay Federman, chairman of the hospital’s Institutional Review Committee, also testified to the fact that it was the hospital’s duty to “assure that all physicians who partook in those investigations had an informed consent signed ...” Trial Transcript, 9/19/89 at 706. In fact, the hospital had devised a method to ensure its duty to obtain an informed consent was fulfilled. Two witnesses called by the hospital, Drs. Grohsman and Belmont, confirmed that it was standard procedure that the head operating room nurse was not to allow an operation involving an investigational medical device to go forward without the necessary special investigational consent form having been signed and placed in the patient’s chart. However, in this instance, it is undisputed that a signed consent form was not in Mr. Friter’s chart.

Thus, under the facts presented in this case, the hospital had assumed a duty, pursuant to FDA regulations, to ensure that any patient involved in a clinical study was made aware of the clinical nature of the procedure and the risks associated with such experimentation, and had signed a consent form acknowledging that fact.

Therefore, one impediment as to why an informed consent action cannot lie against a hospital, that being the fact that only the physician has the duty to obtain the consent, does not exist in this case. To the contrary, federal regulations specifically mandated that the hospital assume the duty of obtaining informed consent.

The second major obstacle offered as to why a hospital cannot be held liable in an informed consent action, is that informed consent is a battery action, and a hospital cannot commit a battery. However, a review of the definition of a battery reveals that in this instance the hospital can be found to have committed a technical battery. The Restatement (Second) of Torts, § 18, states that “[a]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person ...” In comment (c) to section 18 the meaning of “contact with another’s person” is more fully explained. As noted therein, “[i]t is not necessary that the contact with the other’s person be directly caused by some act of the actor. All that is necessary is that the actor intend to cause the other, directly or indirectly, to come in contact with a foreign substance in a manner which the other would reasonably regard as offensive.”

In this instance, by applying to become and actually becoming an approved institution for conducting clinical studies, Wills Eye Hospital intended to cause patients to come in contact with a foreign substance, namely, the experimental intraocular lens. At the same time, the hospital agreed to abide by the federal regulations requiring it to ensure all patients were informed of the experimental nature of the study and signed consent forms attesting to that fact. By failing in its duty to Mr. Friter to obtain his informed consent, the hospital rendered Mr. Friter’s contact with the foreign substance one which Mr. Friter reasonably considered offensive. Thus, the hospital may now be held liable for committing a technical battery upon Mr. Friter.

The idea that a corporation such as Wills Eye Hospital can be held liable for the intentional tort of battery is not new. In Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 565 A.2d 1170 (1989), this court held an electric company liable for the intentional tort of battery. Analyzing comment (c) of section 18 of the Restatement (Second) of Torts, this court concluded that the electric company had produced a contact, such that it could be held liable for battery.

The next issue before us is whether count one of appellants’ complaint, entitled tort of intentional exposure to radiation, states a cognizable cause of action. We conclude that it does. In the count, appellants allege that PECO deliberately exposed Field to radiation by operating the reactor knowing that Field would be exposed to dangerous levels of radiation and by deliberately venting radioactive steam on Field knowing his location. We believe this states a cause of action in battery. See Restatement (Second) of Torts § 13 (battery requires intent to cause offensive contact and resultant harmful contact). The intentional act of venting steam where the steam produced the contact is sufficient to state an actionable battery. See Restatement (Second) of Torts § 18 comment c (intent to contact someone with offensive foreign substance constitutes contact for purposes of battery).

Id., 388 Pa.Superior Ct. at 416-17, 565 A.2d at 1178.

Similarly, in the present case, the hospital, by participating in the clinical study, intended contact with patients who were to receive the experimental lenses. Such contact by its nature is offensive. It is only when a consent to such a touching is obtained that the hospital has a defense to the battery, as consent to the touching provides a defense in battery actions. However, in this instance, the hospital failed in its duty to obtain that consent. Furthermore, as noted by this court in Field, the fact that the corporation did not intend to harm anyone, is immaterial. Id. Thus, while we do not doubt that Wills Eye Hospital never intended to harm Mr. Friter, that does not relieve them of liability for the battery in this instance.

In conclusion, because under the facts of this case we find that Wills Eye Hospital had assumed an independent duty to obtain Mr. Friter’s informed consent, and because the hospital intended Mr. Friter to come in contact with a foreign substance by way of the investigational study, there is no reason why the hospital should not be held liable under an informed consent cause of action. The record reveals that the nature of the hospital’s duty to obtain the consent was proved to the jury, and the jury recognized the existence of that duty. Accordingly, the jury returned a verdict in favor of plaintiff. Thus, we conclude that under the facts presented in this case, Wills Eye Hospital may be held liable for failing to obtain Mr. Friter’s informed consent. Therefore, the trial court erred in granting the hospital’s motion for judgment n.o.v.

Although our decision to reverse the trial court order granting Wills’ motion for judgment n.o.v. effectively disposes of this case, for the sake of Completing the record on remand we note that Wills’ had also raised several other trial errors by way of post-trial motions. Specifically, Wills’ alleged that appellants had failed to provide expert medical testimony to prove their case; that the trial court had erred in admitting the FDA regulations into evidence; that the trial court erred in permitting appellant’s expert, Dr. Kirschner, to testify beyond his area of expertise and beyond the scope of his report; the trial court erred in admitting the testimony of Dr. Duane; and that the trial court erred in denying Wills’ motion for a post-trial evidentiary hearing. With respect to these remaining issues, we find that Judge Goldman has thoroughly and correctly disposed of them in his October 19, 1990 opinion and therefore affirm on the basis thereof.

We also note that through post-trial motions Wills raised issues concerning allocation of damages and remittitur, and appellants presented a petition for delay damages. The trial court found these issues to be moot in light of its decision to grant the hospital’s motion for judgment n.o.v. Now that we have reversed the trial court’s order, the trial court will necessarily have to consider remittitur and delay damages in accordance with our remand order.

Accordingly, the order of the trial court granting Wills Eye Hospital’s motion for judgment n.o.v. is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

Order reversed. Verdict reinstated and case remanded for judgment thereon. Jurisdiction relinquished.

      . Before concluding, we note that this court is well aware that the supreme court formally adopted the doctrine of corporate liability in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), while this matter was pending on appeal. In fact, a review of the pleadings and transcript of this case reveal that appellant actually pled and proved all of the elements comprising a corporate liability action. However, appellant did not ask us to apply that doctrine to the pleadings and transcript of this case, but rather requested we expand the doctrine of corporate liability to encompass battery actions. This we will not do, as corporate liability has to date been premised on proof of negligence. However, it is interesting to note that at the crux of the corporate liability doctrine is the notion that certain duties run directly from the hospital to its patients.


author: DEL SOLE, Judge:

text:
    607 A.2d 1116
    David H. ADAMS, Appellee, v. Karen A. ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1992.
    Filed May 19, 1992.

      Vivian M. Appel, Bethlehem, for appellant.

      Edward J. Zamborsky, Allentown, for appellee.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

Karen Adams appeals from the trial court order upholding the validity of a post nuptial separation and property settlement agreement which provided for distribution of the majority of the marital property to her husband. Finding no abuse of discretion or error of law, we affirm.

Karen Adams and David Adams were married in 1964; Mr. Adams began a construction and real estate business and Mrs. Adams remained at home and raised their four children, as well as assisted her husband with bookkeeping and decisions pertaining to his businesses. In 1977, Mrs. Adams obtained employment as a part-time volleyball coach, and in 1980 she became a full-time employee of Lehigh University, initially as a tennis instructor and as associate athletic director at the time of the separation. In 1987, following the termination of a five year homosexual relationship which she had concealed from her family, friends and co-workers, Mrs. Adams realized her marriage was in trouble and began therapy with Dr. Amy Miller-Cohen, a licensed psychologist. After an unsuccessful attempt to salvage their marriage, the parties separated in the spring of 1987 and Mrs. Adams left the marital residence. Mrs. Adams continued to see her therapist. Late in 1987, during one of the counseling sessions at which Mr. Adams was present, he asked his wife, “What do you want?” Mrs. Adams responded by writing on a sheet of paper that she wanted the house where she was living, the car she was driving, joint bank accounts and a computer. She handed the note to her husband, who subsequently took it to his attorney. Mr. Adams’ attorney drafted the agreement at issue, but did not review it with the parties. He did meet with them to confirm that the note did embody Mrs. Adams’ desires regarding the separation agreement; she indicated that it did. Mr. Adams’ attorney informed Mrs. Adams that he could not represent her in this matter, and did not advise her of her statutory rights under the Divorce Code of 1980. Although Mrs. Adams’ counselor strongly urged Mrs. Adams to seek legal counsel on her own, Mrs. Adams signed the agreement without ever consulting an attorney. She did retain counsel in 1988, when the parties filed for divorce. Her counsel filed an Answer and Counterclaim for equitable distribution on her behalf. Mr. Adams engaged new counsel, who filed an Answer to the counterclaim asserting the Agreement.

On appeal, Mrs. Adams is claiming that the post nuptial separation and property settlement agreement is invalid because there is no reasonable provision for her, there is no full and fair disclosure of the parties’ worth nor of the statutory rights being relinquished, and she did not possess the capacity to contract at the time she signed the agreement.

In regard to Appellant’s claim that a property settlement agreement make reasonable provision for the spouse in order to be valid and enforceable, In re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1985), we note the decision of this state’s supreme court in Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). Simeone dealt with the validity of a prenuptial agreement; however, the same principles apply to both antenuptial and postnuptial agreements. Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 535 A.2d 664, n. 2 (1988), citing In re Ratony’s Estate, 443 Pa. 454, 277 A.2d 791 (1971). The Simeone court discarded the approach of Geyer that permitted examination of the reasonableness of prenuptial agreements; therefore, Appellant’s contention that the agreement did not make reasonable provision for her is without merit, as the reasonableness of such an agreement is not a proper subject for judicial review. Simeone, 525 Pa. at 400-01, 581 A.2d at 166.

Appellant also claims that the agreement failed to make full and fair disclosure of the parties’ worth and of the statutory rights being relinquished. This requirement has been retained, and absent this disclosure, “a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted.” Karkaria v. Karkaria, 405 Pa.Super. 176, 592 A.2d 64 (1991), citing Simeone v. Simeone, 525 Pa. at 402-03, 581 A.2d at 167. It is well settled that the disclosure need not be exact, so long as it is “full and fair,” Id., and does not “obscure the general financial resources of the parties.” Nigro v. Nigro, 371 Pa.Super. 625, 631, 538 A.2d 910, 914 (1988), citing In re Estate of Geyer, 516 Pa. at 502, 533 A.2d at 427. In the instant case, the fact that Appellant was involved in her husband’s business supports tp the trial court’s conclusion that she was “an intelligent woman who had sufficient knowledge of her husband’s business for there to have been full and fair disclosure” at the time the agreement was executed. Opinion, Simpson, J. p. 8. Additionally, a review of Appellant’s depositions reveals that Appellant displayed knowledge of the parties’ general financial resources. Therefore, we hold that the trial court did not err in finding that Appellant was fully and fairly aware of the marital estate.

Appellant also challenges the agreement on the basis that she did not receive full and fair disclosure of her legal rights under the Divorce Code. Geyer requires that there be evidence that the parties are aware of the statutory rights they are relinquishing, in addition to disclosure of their financial status, in order for there to be “full and fair” disclosure. Id. 516 Pa. at 506, 533 A.2d at 429. The agreement clearly mentions Appellant’s rights to equitable distribution, support, alimony and/or maintenance on the first page. It also mentions alimony pendente lite and counsel fees as rights discharged by the agreement. The fact that Appellant chose not to hire an attorney to clarify any misunderstanding she may have had concerning the agreement is of no consequence. Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), citing Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). “To impose a per se requirement that parties entering a prenuptial agreement must obtain independent legal counsel would be contrary to traditional principles of contract law, and would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts.” Simeone, 525 Pa. at 401, 581 A.2d at 166. Therefore, we find that based upon the facts, the trial court correctly concluded that adequate disclosure of the parties’ statutory rights had been made.

Finally, Appellant asserts that she did not possess the capacity to contract at the time she signed the agreement, and that she signed it under the duress of her husband. Duress has been defined as:

That degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness ... Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel.

Hamilton v. Hamilton, 404 Pa.Super. 533, 591 A.2d 720, 721 (1991), citing Carrier v. William Penn Broadcasting Company, 426 Pa. 427, 431, 233 A.2d 519 (1967).

In the matter before us there is no evidence of physical threats made to Appellant by her husband, so her contention that her husband played on her guilt and threatened her job, without more, is insufficient to void the agreement when she was free to retain independent counsel at all times during the proceedings. In regard to her claim of lack of capacity, Appellant has not proven that she suffered from mental weakness so great that she was unable to comprehend the contract, nor has she proven the existence of imposition or undue influence by her husband. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Rather, she chose to enter into the agreement uncounselled, and any ignoranee or alleged lack of capacity on her part cannot provide a basis for her to avoid the agreement. Accordingly, we affirm the order of the trial court.

Order affirmed.