text:
    484 A.2d 121
    Kathrina Anne DE WITT, Appellant, v. John P. KAISER.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Nov. 2, 1984.

      Harry C. Barbin, Rockledge, for appellant.
    Joseph Feldman, Philadelphia, for appellee.

      Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County sustaining appellee’s exceptions. On September 16, 1981, appellant, Kathrina Anne DeWitt, filed a complaint for support against her former husband, John P. Kaiser, appellee, averring that appellee had failed to pay her the entire amount due under a separation agreement entered into by the parties on November 16, 1979, and, further, that appellee had failed to provide her with a proper accounting of his income for the year 1980. On February 1, 1982, the parties filed a stipulation that the issue be reduced to an interpretation of the aforementioned separation agreement.

A hearing before a master was held on April 20, 1982, and the master filed findings of fact and conclusions of law and a recommended order on May 11, 1982, in appellant’s favor. On the same day, the lower court entered an order approving the recommendations of the master and providing that the parties had 10 days to demand a hearing. Appellee thereupon filed exceptions to the order, and the Court ordered a hearing to be held de novo. A formal hearing was not held. On November 3, 1982, the parties appeared before the lower court judge who called for argument in chambers. After this meeting on January 6, 1983, the lower court judge sustained appellee's exceptions. This appeal followed, and we reverse.

The sole issue in this appeal concerns the interpretation of one term of the agreement. According to appellant, “income”, as used and defined in the agreement, includes all dividends and interest received by appellee whether outright or through the conduit of a trust. Appellee, however, urges that trust income is excluded when computing his “income”. If “income” includes receipts from trusts, the amount of support due appellant under the agreement would increase for the year 1980 and, possibly, for subsequent years.

The pertinent language of the separation agreement is as follows:

(ii) For purposes of this Paragraph C, the term “income” means cash receipts consisting of salary, dividends, and taxable and non-taxable interest, not reduced by depreciation or depletion, or losses from any trade or business. The term “income” also shall not include or be reduced by, as the case may be, capital gains or losses, the principal of gifts and inheritances, the separate income of a spouse in the event of Husband’s remarriage, or various types of taxable income, including but not limited to income relating to grant of stock options, and/or stock purchase plans maintained by Husband’s employer. Further, the term “income” shall not include the cost of goods sold and expenses associated with the production of income or similar items which enter into the computation of gross profit from any trade or business enterprise undertaken by Husband in any capacity.

Appellant attempts to elucidate the intent of the parties through the introduction of parol evidence, in particular, correspondence between the parties’ attorneys during the period of negotiations prior to execution of the contract.

Therefore, the threshold inquiry is whether such evidence is admissible for the purpose of clarifying the term “income” as employed in the Separation Agreement. The lower court judge held that since the term income was unambiguous, such evidence was inadmissible or at least unnecessary. A property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally. Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223 (1981).

Where a term is defined in a contract and is, therefore, presumably unambiguous, no further interpretation is justified since if the meaning is clear from the express language of the agreement, judicial construction is unnecessary. Eannarino v. Eannarino, 294 Pa.Super. 81, 439 A.2d 760 (1982). In such a case, the parties’ intent is to be gleaned from the face of the agreement.

We have said

When the terms of a written contract are clear, this Court
will not re-write it or give it a construction in conflict with
the accepted and plain meaning of the language used.

Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514, 515 (1981).

Concomitantly, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 288, 310 A.2d 331 (1973). This is especially true in a case where the intended meaning of a particular term is actually further clouded by the definition supplied by the parties.

In the case sub judice, the word “income” is defined in a way so as to describe what amounts said term shall or shall not include, but said definition is incomplete.

The lower court judge stated

Furthermore, given the experience and competence of the
parties’ counsel, the considerable effort expended in drafting this agreement and the ease with which trust income from all sources could have been specifically included as income, the court is unwilling to vary the terms of the Agreement.
(Opinion, Davenport, J. at 3).

The agreement expressly states that the term “income” shall include “dividends” and “interest” and shall not include the “principal of gifts and inheritances” and “capital gains”. Nowhere in the definition of the term “income” is there mention of a “trust” or “trusts”. Since “dividends”, “interest” and even “capital gains” may just as readily flow through the medium of a trust, the trust acting as a mere conduit, we must resort to case law to clarify the term “income” and the intendment of the parties by their use of the terms “dividends”, “interest” and “capital gains”.

We are convinced that in this case

While [appellant] cannot use parol evidence to add terms to the original description, such evidence is admissible to clarify the terms of the description, so that the Court can act upon it.

Powell v. Powell, 244 Pa.Super. 264, 272, 367 A.2d 314, 318 (1976).

In Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976), the issue on appeal was whether the trial court erred in refusing to receive evidence that the parties used the term “alimony” to mean “child support”, or simply, what was the meaning that the parties intended when they used the word “alimony”.

In general the court must adopt the construction which gives effect to the parties’ reasonable and probable intent, in view of the surrounding circumstances and the purposes of the contract, (cites omitted) And, although a word is generally used for its ordinary meaning, the context of the instrument may indicate it was used in a different sense, (cites omitted) If the meaning of a term is not clear, aprol (sic) evidence is admissible to resolve the ambiguity, but not to alter the terms of the contract ---- the Restatement of Contracts, Second, § 240 provides: “Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish ... the meaning of the writing, whether or not integrated____” Although there is Pennsylvania law stating that “parol evidence” may not be introduced unless the language of the written agreement is ambiguous on its face, this principle is substantially undercut by a competing proposition that extrinsic facts and circumstances may be proved to show that language apparently clear and unambiguous on its face is, in fact, latently ambiguous ...

Kohn v. Kohn, 242 Pa.Superior Ct. at 442-443, 364 A.2d at 353-355. (Emphasis added)

3 Corbin on Contracts, § 590 (1960), states
“Evidence of the facts tending to show that [] a fundamental assumption was made, though not expressed in writing, should never be excluded by any 'parol evidence rule.’ ”

In Commonwealth ex rel. Grossman v. Grossman, 188 Pa.Super. 236, 146 A.2d 315 (1958), the sole question was whether the parties contemplated a college education when the father agreed to support his son until his son completed ■his “schooling”.

We should adopt that interpretation which, under all the circumstances of the case ascribes the most reasonable, probable and natural conduct to the parties.

Id., 188 Pa.Superior Ct. at 239, 146 A.2d at 317.

Stating that “a contract is to be taken most strongly against the party on whom the obligation rests”, the court noted

Construing the contract most favorably to the son would lead to the conclusion under all the surrounding circumstances, that the father at the time when this contract was entered into intended the schooling to include a college education.

Id., 188 Pa.Superior Ct. at 239, 146 A.2d at 317.

Here, parol evidence is necessary to ascertain the intent of the parties and to clarify an ambiguous term. We are convinced that the lower court abused its discretion in sustaining appellee’s exceptions without considering the proffered parol evidence.

The contract reads in relevant part:

ARTICLE 1. Husband shall make the following payments to Wife:
B. Support payments of $2,333.33, for Wife and children, on or before the fifth day of each month commencing with the month of November 1979, and
(i) In the event that Husband’s income shall exceed $125,000 per year, Husband shall make an additional payment to the wife of 15% of the excess over $125,000.

Therefore, support payments under the agreement were to be made monthly in the amount of $2,333.33, which approximates a payment to wife of $28,000 per year, and adjustments upward were to be made only in the event of a significant change in appellee’s income, i.e. if his income increased to over $125,000.

Appellee submitted to appellant a statement of income for 1980 which showed

Salary-$104,856.00
Interest 453.00
Dividends 3,962.00 []
$109,271.00

This statement omitted any income from the trusts.

Appellee’s income for the year 1978 was approximately $110,000, which included all income, including dividends and interest from trusts. Appellant contends that the 1978 figure of $110,000 was used to determine the $125,000 figure for the adjustment in payments to appellant.

A letter from appellee’s attorney to appellant’s attorney dated September 21, 1979, states

John feels rather strongly that the 15% of amounts over $130,000.00 per year will adequately protect Kathy and I have advised him against use of the Consumer Price Index because of the uncertainty and difficulty of calculations.

Appellant’s attorney responded

5. Kathy agrees with your suggestion in your letter concerning the adjustment of support based on income, provided the base is $110,000.00, which is what it was in 1978, and not $130,000.00. Otherwise, your comments concerning exclusions from income are acceptable. (Emphasis added)

On October 18, 1979, appellee’s attorney wrote, “I believe that it is best for all concerned to avoid annual calculations if possible, and that John and Kathy would both be satisfied if the adjustment upwards came only in the event of a significant change in income. The figure of $125,000.00 approximates 115% of anticipated income for 1979.”

It is clear that, at the very least, appellant intended to include in “income” that amount which represented income from the trusts. Appellant was apparently operating on the assumption that appellee’s income for 1978 was approximately $110,000, which included more than $17,000 of trust income. Indeed, appellee does not list dividends received from the trust separately as “trust income” on his 1978 tax return. Rather than listing them as a receipt from a trust under Schedule E, he lists them, together with the dividends he received directly, on Schedule B entitled “Interest and Dividend Income”.

It must be borne in mind that inclusion of trust receipts in the definition of “income”, which determines the ultimate payment to appellant, will not result in a shifting of actual dollars of trust income to her; it will merely increase the “base” amount upon which appellee supports himself. Earnings and income are factors to be taken into consideration in determining the parties’ rights and obligations upon dissolution of the marriage, so that neither party will suffer undue hardship. Since appellee’s income is supplemented by the trust income, a figure intending to depict appellant’s income may include receipts from the trust. See 23 P.S. § 501(b)(4), 23 P.S. § 47, repealed.

We hold, therefore, that the lower court abused its discretion in not allowing parol evidence to determine whether trust income was intended to be included in the term “income”.

An abuse of discretion occurs where the lower court misapplies existing law, makes a manifestly unreasonable judgment or rules with partiality, prejudice or ill will.

Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 447 A.2d 617 (1983). Appellee offers no rebuttal parol evidence to support his argument; our remand will afford him such an opportunity.

Accordingly, we reverse the order of the lower court and remand for proceedings consistent with this opinion.

Jurisdiction relinquished.

      . Appellant raises two issues. In view of our disposition, we need not discuss the other issue which involves his due process rights vis-a-vis the argument in chámbers.

      . The trust income at issue flows partly from a trust set up by appellee’s grandmother and partly from a revocable trust of which appellee is settlor.

      . The parties amended the definition of income by letter to include net income from a trade or business.

      . For example, Litwack concerned the definition of the word “marry”, a term which is obviously susceptible to but one interpretation.

      . This represents dividends from appellee’s Tasty Baking Company stock less dividends received on restricted stock excluded from the agreement ($10,921-6,-959).

      . At the time of the execution of the agreement, the law stated
      the court may allow the wife such alimony as her husband’s circumstances will admit of, but the same shall not exceed the third part of the annual profit or income of his estate, or of his occupation and labor ...
      23 P.S. 47, 1929, May 2, P.L. 1237, § 47. [Amended 1980, Apr. 2, P.L. 63, No. 26, § 503, eff. in 90 days.]


source: Caselaw Access Project

author: HOFFMAN, Judge: WICKERSHAM, Judge,

license: Public Domain

text:
    484 A.2d 126
    John LONG and Patricia Long, his wife, Appellants v. BROWNSTONE REAL ESTATE CO.; Lawrence Peters and Donald Lechleitner, Individually and t/d/b/a Brownstone Real Estate Co.; Carl Adams, Individually and as Representative for Brownstone Real Estate Co.; Jean Hoffman, Individually and as Representative for Brownstone Real Estate Co.; and Garry Long and Nancy Long, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Nov. 2, 1984.

      Joseph M. Farrell, Palmyra, for appellants.
    Thomas A. Ehrgood, Lebanon, for Brownstone, appellees.
    George E. Christianson, Lebanon, for Long, appellees.
    Before WICKERSHAM, OLSZEWSKI, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court erroneously granted appellees’ motion for compulsory nonsuit at the close of appellants’ case. We agree and, accordingly, reverse the order below.

On September 6, 1978, appellants, John and Patricia Long, entered into a sales agreement with appellees, Garry and Nancy Long, for the purchase of appellees’ residence located at 1100 East Maple Street in Palmyra. Appellee Brownstone Real Estate Company (hereinafter “Brownstone”) carried the listing of the property. Settlement on the property occurred on November 16, 1978, and appellants took possession the same day. On January 24, 1979, following a heavy rain, the basement of the house was flooded, causing damage to articles stored therein. Appellants thereafter discovered that the basement had been flooded on three occasions prior to the time they purchased the property. Appellants then filed suit against appellees Garry and Nancy Long, appellee Brownstone, and appellees Carl Adams and Jean Hoffman (agents for Brownstone), alleging negligence in failing to inform them of the flooding problem, breach of an implied duty of disclosure, and willful misrepresentation of the condition of the property. On July 1, 1980, appellants filed a complaint in equity and a complaint in trespass and assumpsit against appellees. On September 10, 1981, appellants stipulated to terminating their equity action with prejudice. On September 14, 1981, jury trial commenced. On September 17, 1981, after appellants presented their case as to liability, the lower court granted appellees’ motion for compulsory nonsuit. Appellants then filed a motion for removal of the compulsory nonsuit, which the lower court en banc denied by Order and Opinion filed November 3, 1982. This appeal followed.

“[A] nonsuit should be entered only in a clear case, and on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts thereon must be resolved in favor of plaintiff.” Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 231, 213 A.2d 608, 609 (1965). Accord, Norton v. City of Easton, 249 Pa.Superior Ct. 520, 523, 378 A.2d 417, 418 (1977). “When a compulsory nonsuit is entered, lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable diagreement.” Scott v. Purcell, 490 Pa. 109, 112-13, 415 A.2d 56, 58 (1980). “[A] compulsory nonsuit may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff.” Id.

Here, appellants’ evidence, viewed in the most favorable light, reveals the following facts: Appellees, Garry and Nancy Long, purchased the home in question in 1970 and were its first residents. In 1972, 1974, and 1976, while owned by appellees Long, the basement was flooded up to the ceiling, a height of approximately seven-to-eight feet. In March of 1978, appellees Long signed a real estate listing agreement with appellee Brownstone for the sale of the property. In August, 1978, appellants noticed the “For Sale” sign in front of the residence and contacted Brownstone. Prior to executing the sales agreement in September, 1978, appellants were shown the property, including the basement, by appellee Adams. While inspecting the property, appellants asked Adams if the property had any history of water damage because, if it had, they were not interested in purchasing the property. Adams replied in the negative. Richard Bowman, appellants’ prospective mortgagee at the time, also inspected the property in the company of appellee Hoffman. In the basement, Bowman noticed a six-inch water line around the foundation on the cellar wall and asked Hoffman about it. Hoffman informed him that there had been a water problem but did not mention anything about the previous floodings. Bowman, in subsequently approving appellants’ mortgage, believed that the water problem had since been alleviated. Appellants completed the purchase and moved into the residence in November of 1978. On January 24, 1979, heavy rain caused water to accumulate in the backyard of the residence. The below-ground basement door quickly collapsed under the pressure and water flooded into the basement, rising to the level of the ceiling rafters, a height of approximately eight feet, and damaging the basement’s contents. Thereafter, appellants first learned about the three previous floodings.

The lower court granted the nonsuit primarily on the basis of Bowman’s testimony regarding the water line in the basement, reasoning that appellants, upon reasonable inspection of the premises, should have noticed the water line and recognized that the house had a flooding problem. Therefore, the court concluded that appellees had no duty to disclose such a patent defect to appellants.

We disagree. First, there is no evidence that appellants ever noticed the water line and, even if they had or should have noticed it, we believe that a six-inch water line is not such an obvious defect as to constitute notice of eight-foot high floodings. A water line around the bottom wall of the basement is more indicative of water seepage or dampness from its foundation than of complete inundation of the basement from ground level. Moreover, appellants had been falsely informed by the sales agent that the house had never experienced flooding and appellants had no reason to disbelieve him. Additionally, although there was a sump pump in the basement, appellants reasonably believed that such a pump was used in the event the automatic washer overflowed. Under these circumstances, we find that appellants presented sufficient evidence to support their claim that appellees had a duty to disclose the prior floodings and, therefore, hold that the nonsuit was unwarranted.

Accordingly, we reverse the lower court’s order denying appellants’ motion for removal of the compulsory nonsuit and remand for a new trial.

Reversed and remanded. Jurisdiction is relinquished.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I respectfully dissent.

I would affirm the decision of the Lebanon County Court en banc (per President Judge G. Thomas Gates and Judge John Walter) where the petition to remove a compulsory nonsuit was denied. As Judge Walter pointed out in his opinion dated November 2, 1982:

Plaintiffs’ allegations are refuted by testimony that was put forward by the plaintiffs themselves. As a basis for a majority of their claims, plaintiffs assert that they knew nothing about the flooding problem with the Palmyra property. Plaintiffs claim they never observed any indication of flooding problems nor did anyone ever inform them of the water problem. However, plaintiffs’ own witness, Mr. Bowman, testified that there was a water line along the wall in the basement which was clearly visible. (N.T. 252) The water mark was not concealed in any way and was easily recognizable for what it was — a water mark.
When an imperfection in a property is open and obvious it is considered a patent defect. And a patent defect imposes no duty on the owner to warn or declare. A flooding problem may not always be considered a patent defect depending on the surrounding circumstances. However, in the instant case there is no question that the flooding problem was open and obvious. By making a reasonable inspection of the house, including the basement, it was readily discernable that the property had a flooding problem at least once. For there along the basement wall, six inches above the floor was the water mark for all who would look, to see. A reasonable person seeking it would recognize the “signature” of water in the basement up to that level.
The presence of water marks in a basement as evidence of a defect in the home from some cause can be distinguished from a situation where there are mud channels made by termites present in the rafters in a basement. The latter may not be recognizable to a reasonably prudent person; the former are. See Quashnock v. Frost, [299] Pa.Super. [9], 445 A.2d 121 (1982). Thus, because the imperfection — the flooding problem — was so obvious it is a patent defect.
A seller’s duty to disclose a defect in property arises when:
“... (a) the vendee does not know or have reason to know of the condition or the risk involved, and
“(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.”
Section 353 of the Restatement, 2d Torts. In the present case the condition of the property was such that plaintiffs Long had reason to know of the defect since it was so conspicuous. Therefore, neither the vendors, defendants Long, nor their agents had a duty to disclose the condition to the plaintiffs Long.
Even if there was no duty to disclose, plaintiffs claim misrepresentations were made on the condition of the property. Plaintiffs contend they asked defendant Adams if the property had a history of water damage and that he responded that the property had no previous flooding problems. An examination of the testimony shows that it is not clear whether Mr. Adams did in fact state that the property had no problems with flooding. However, assuming arguendo that Mr. Adams did say there was no history of water damage with the property, since he was only aware of flooding on the property as a result of Hurricane Agnes2, that statement in and of itself would not be sufficient grounds to remove the nonsuit. A real estate agent is not expected to be an expert on the physical quality of the property. Henry v. Babekci [Babecki], 65 [Pa.] D & C2d 4, 15 (1974). The water mark on the basement wall was obvious, there was a sump pump in the basement and part of the backyard had recently been filled in. These undisputed facts would put a reasonable person on notice that there was a water problem with the property sometime in the past. It cannot validly be contended that plaintiffs were misled by statements made by Mr. Adams. The evidence was right before plaintiffs’ eyes.
* * * * * Sic
There was no conflict in the testimony presented in the instant case, and in making all reasonable inferences in favor of plaintiffs it is apparent that plaintiffs failed to establish elements to sustain a cause of action. Plaintiffs’ mortgagee testified that there was a water mark on the wall in the basement. There was no testimony that refuted the presence of the mark or that indicated an attempt to conceal the mark from plaintiffs Long. Because the mark was obvious for anyone to see and any reasonable person upon seeing the mark would have perceived it to be an indication of a flooding problem, defendants had no duty to disclose the condition of the property to plaintiffs. An active concealment of a condition or a duty to disclose a condition, the elements necessary to establish negligence, fraud, breach of contract or breach of fiduciary duty on the part of defendants, were not established by the plaintiffs.
The nonsuit was properly granted. The motion for removal of the compulsory nonsuit will be denied.
2 Which yielded what meteorologists call a “100 year rain”.

Lower ct. op. at 4-8.

       Because of our disposition of this case, we need not address appellants’ remaining contentions.


author: BROSKY, Judge:

text:
    484 A.2d 130
    COMMONWEALTH of Pennsylvania v. Robert BEBOUT, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Nov. 9, 1984.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

The sole issue before us in this appeal is whether appellant, who was a juvenile at the time of his arrest, was denied the right to have access to an informed interested adult prior to making an incriminating statement. We affirm.

Appellant’s conviction stemmed from the sexual assault and subsequent strangulation and beating of a seven year old boy whose nude body was found on May 15, 1981 in the Saw Mill Run Creek in the West End neighborhood of Pittsburgh. The evidence presented at the suppression hearing indicates that during the police investigation, several boys from the neighborhood were taken to the Public Safety Building in Pittsburgh where they were questioned about their activities and asked whether they had observed strangers in the vicinity on the night the crime was committed.

Among the boys questioned in this way were appellant and his two brothers who were taken to the Public Safety Building at approximately 4:00 p.m. on May 18, 1981. The boys were interviewed separately and the detective who interviewed appellant testified that shortly after the interview began he asked Mr. Bebout if he knew anything about Michael Jackson’s death and he responded, “I did it.” When appellant told the detective that he had killed Michael, the officer left the room and saw to it that Ginette Bebout, appellant’s mother, was contacted. Mrs. Bebout was brought to the Public Safety Building and was told her and her son’s rights, as was appellant. Mrs. Bebout and her son met privately and they both signed the rights waiver form. Mr. Bebout then made a statement in the presence of his mother.

Appellant argues that his waiver was not voluntary because it was obtained in violation of the “interested adult” rule. That rule provided that no juvenile could waive his right to remain silent and his right to the assistance of counsel without the opportunity to consult with an adult, who is informed of the juvenile’s rights and is interested in the welfare of the juvenile. Appellant claims that he did not have the opportunity to consult with an interested adult because his mother was not in fact interested in his welfare and seeks to prove this by use of “after discovered” evidence.

The current standard for evaluating the voluntariness of confessions made by juveniles is the result of a recent evolution in the area of criminal justice. The interested adult rule, which came to be known as the McCutchen Rule, established a per se rule that a juvenile is incompetent to waive his constitutional rights without access to an interested and informed adult. The McCutchen Rule was adopted as a prophylactic measure to ensure that the requirements of due process are satisfied. In Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977) the Pennsylvania Supreme Court stated:

... [D]ue process requires that a waiver by a youthful offendér is effectuated only when it has been shown that a minor comprehended the full significance of .the panoply of rights that protects him during custodial interrogation. Id. at 799.

The per se McCutchen Rule was overruled by the Supreme Court of Pennsylvania in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983) which held:

... we believe that protection of juveniles against the innate disadvantages associated with the immaturity of most youth may well be achieved in a manner that affords more adequate weight to the interests of society, and of justice, while avoiding per se applications of the interested and informed adult rule that serve, in an overly protective and unreasonably paternalistic fashion, to provide means for juvenile offenders to secure suppression of confessions in fact given in a knowing and voluntary manner.

Id., 502 Pa. at 222, 223, 465 A.2d 989.

In an effort to preserve the requisite measure of protection against admission of confessions derived as a result of the immaturity, lack of understanding, and susceptibility to influence of youth, the Court announced that there shall exist a presumption that a statement derived in the absence of an opportunity for consultation with an interested and informed adult is inadmissible. That presumption shall be regarded as rebutted where the evidence clearly demonstrates that the statement obtained from the juvenile was in fact made knowingly, intelligently and voluntarily. Id.

In the case of Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984), the rebuttable presumption test applied in Christmas was replaced by a “totality of the circumstances” analysis as the current standard for evaluating the voluntariness of confessions. In Williams, the Supreme Court of Pennsylvania stated:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.

Id., 504 Pa. at 521, 475 A.2d at 1288.

In the instant case, appellant contends that we should suppress the admissions made by him on the basis of an application of the per se McCutchen Rule. Although the per se rule is no longer recognized in Pennsylvania, the absence of the juvenile’s right to confer with an interested adult will be viewed as an important factor among the totality of circumstances in determining if the waiver was voluntary. For this reason, we will address appellant’s claim.

In Commonwealth v. Rochester, 305 Pa. 364, 451 A.2d 690 (1982), our Supreme Court held that three factors must be present in order to find that a juvenile had been accorded his right to consult with an interested adult. They are: (1) the juvenile must be given the opportunity to consult with an adult; (2) the adult must be one who is genuinely interested in the welfare of the accused juvenile, and, (3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed a juvenile.

Appellant concedes that the first requirement was met but argues that the second and third factors were not satisfied.

As to the third requirement, we find that the suppression testimony clearly refutes appellant’s claim. Although Mrs. Bebout indicated that she met with her son first without having been told his rights, she then related that prior to his making the statement to the officers, both she and her son were advised of his rights. Furthermore, the detective who interviewed appellant testified that in fact Mrs. Bebout was told of her son’s rights prior to her first meeting with him.

It is clear that appellant and his mother were advised of his rights prior to his incriminating himself. Even appellant’s counsel said at the conclusion of the suppression hearing testimony, ‘T don’t have any problem, frankly, agreeing to the state of the record that it’s not essentially that we are withdrawing, but based on the mother’s testi-. mony, clearly, he was warned adequately.”

As to the second requirement, the suppression court found that the presence of appellant’s mother provided the requisite access to an adult who is interested in the welfare of the accused juvenile. Appellant does not argue with the suppression court’s findings based on the evidence adduced at the suppression hearing. Instead, appellant now argues that the trial testimony of a psychiatrist indicates that his mother was not genuinely interested in him and that based on this “after discovered” evidence, we should find that his Miranda rights were violated. We disagree.

It is well settled in this Commonwealth that a new trial is not warranted on the basis of after discovered evidence unless it could not have been discovered until after the trial despite reasonable diligence, is not used merely for cumulative or impeachment purposes, and is of such a nature that it would compel a different outcome. Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91 (1983).

The “after discovered” evidence to which appellant refers is contained in the testimony of a psychiatrist who said that appellant failed to mature because of inadequacies in his home life including his mother’s alcoholism and her failure to censor his use of alcohol and drugs. Given the deficiencies outlined by the psychiatrist, appellant claims that his mother was not “interested” in him.

At the outset we note that even assuming the truth of the allegations about his mother, the evidence was surely discoverable prior to trial. It is not a psychiatric evaluation on which appellant seeks to rely, but on evidence that his mother did not care for him adequately. We will not find such evidence in the category of evidence that “could not have been discoverable ... with due diligence”. Appellant did not allege his mother’s inadequacies at the suppression stage and we will not permit him to raise the issue at this point in the proceedings. See Pa.R.Crim.Proc. 306(e); 323(d). We therefore reject appellant’s argument that he was denied access to an interested adult.

Furthermore, our application of the “totality of circumstances” test used in Williams leads us to the conclusion that appellant’s statements were made voluntarily.

In Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971), the totality of circumstances test was used to evaluate the confessions of a 16 year old, 10th grade student of average intelligence. In Moses, our Supreme Court stated:

... where the accused is of tender years, the attending circumstances must be scrutinized with special care. However, to declare as matter of law that a 16 year old, regardless of maturity and intelligence is unable to fully understand when he is informed of his constitutional rights and may not by himself waive his right to counsel before being questioned by the police would be to ignore reality and the sophistication of the average 16 year old in these days and times.

Id., 446 Pa. at 354, 287 A.2d 131.

In the instant case, appellant was 15 at the time of his arrest and had completed the 9th grade. The evidence presented by the Commonwealth showed that, he was warned of his rights. In fact appellant’s counsel stated at the hearing: “I don’t have any problem, frankly, agreeing to the state of the record that it’s not essentially that we are withdrawing, but based on the mother’s testimony, clearly, he was warned adequately.”

See also, Commonwealth v. Jones, 457 Pa. 423, 430, 322 A.2d 119, 124 (1974), in which the Supreme Court of Pennsylvania stated: “[there is] ... no simple litmus paper test for determining whether a confession is involuntary. Courts must consider the totality of circumstances. The burden is on the Commonwealth to show that the accused’s will is not overborne, either through physical or mental pressure and that the statement issued from free choice.” In the present case, there is a total absence of coercive force and nothing to suggest that the appellant’s confession was the product of illegal police conduct. Id., 457 Pa. at 430, 322 A.2d at 124.

From all of the relevant facts and circumstances appearing in this record, we are convinced that considering the totality of the circumstances, appellant’s confession was knowing, intelligent, and voluntarily made.

Affirmed.

      . The interested adult rule was established by our Supreme Court’s decisions in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); and Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).


author: WIEAND, Judge:

text:
    484 A.2d 134
    AETNA ELECTROPLATING CO., INC., Appellant, v. Raymond JENKINS and Jenkins & Acton, P.C.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed Nov. 9, 1984.
    Petition for Allowance of Appeal Denied June 10, 1985.

      Roland J. Christy, Spring House, for appellant.
    George B. Ditter, Ambler, for appellees.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

If an attorney, in order to induce the court to open a default judgment against his client without the prior posting of bond, promises in open court to guarantee personally any indebtedness found to be owing by his client, may the attorney subsequently defend an action on his promise of guarantee by alleging that the promise was not in writing and signed? The trial court sustained preliminary objections in the nature of a demurrer and dismissed the action on grounds that enforcement of the promise was barred by the statute of frauds. We reverse.

A preliminary objection in the nature of a demurrer “admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences.” DeSantis v. Swigart, 296 Pa.Super. 283, 286, 442 A.2d 770, 772 (1982). Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant. Bickell v. Stein, 291 Pa.Super. 145, 149, 435 A.2d 610, 612 (1981) quoting Donnelly v. DeBourke, 280 Pa.Super. 486, 489-490, 421 A.2d 826, 828 (1980) (over, ruled on other grounds).

According to the averments of the complaint, Aetna Electroplating Co., Inc. (Aetna) had previously commenced an action in assumpsit against Damac, Inc. (Damac) to recover the sum of $26,875.45 owed for electroplating. A default judgment had been entered in that action when no answer was filed on behalf of Damac. The default judgment was opened on petition after Raymond Jenkins, Esquire, attorney for Damac, in response to Aetna’s expressed concern about delay and request for a bond, had assured the court “that he personally guaranteed the payment of any sum ultimately determined to be due from Damac to Aetna.” Although there was no official record made of this conversation at the time, it was noted by the presiding judge in a bench memo and subsequently confirmed by him in a letter to Aetna’s counsel. A judgment ultimately entered in favor of Aetna and against Damac for $34,759.73 could not be satisfied because Damac’s assets had been seized by a secured creditor. Demand was then made upon Jenkins, the appellee. When Jenkins refused to pay his client’s indebtedness, the instant action was commenced. Jenkins filed preliminary objections in the nature of a demurrer. The trial court concluded that Aetna could not enforce Jenkins’ promise to pay his client’s debt because the promise had not been in writing and signed by Jenkins.

It has been held, however, that “agreements made before the court need not be in writing.” Bookwalter v. Bookwalter, 75 Pa.Super. 577, 580 (1921), citing Black v. Black, 206 Pa. 116, 118, 55 A. 847, 848 (1903). In the Bookwalter case, the agreement of counsel had been recorded in the trial court’s decree; in the Black case, the agreement had been memorialized in a master’s report. See also: Zvonik v. Zvonik, 291 Pa.Super. 309, 323, 435 A.2d 1236, 1243 (1981). In the instant case, the averments of the complaint were that counsel’s promise had been memorialized in a bench memorandum and in a letter by the trial judge explaining to counsel why bond had not been required prior to opening the default judgment. Counsel cannot play fast and loose with the court. If he enters an agreement as part of a proceeding before the court, he cannot assert the statute of frauds as a defense to an action to enforce the same. The statute of frauds was intended to prevent fraud; it cannot be used as a vehicle to avoid agreements entered in open court. Compare: Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946) (oral agreement to convey land enforced when title holder admitted in his testimony that agreement existed).

In a separate count in trespass, Aetna alleged that after the default judgment had been opened Jenkins filed an answer and counterclaim containing averments which he “knew or should have known” to be incorrect. Aetna also alleged that Jenkins’ lack of cooperation in complying with Aetna’s requests for discovery and for a prompt trial delayed Aetna’s recovery of judgment until after Damac’s assets had been seized pursuant to mortgage foreclosure proceedings. This count was correctly dismissed by the trial court.

The complaint does not contain averments that counsel committed an intentional tort designed maliciously to cause harm to Aetna. The complaint is, rather, that the manner in which counsel represented his client in defense of Aetna’s claim caused delay in the recovery of a judgment therefor. Defending Aetna’s claim, however, was a justifiable and proper interest, for which Jenkins could properly exert maximum effort on behalf of his client. He cannot be held liable to Aetna so long as he was serving that interest. In Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984), we held that an attorney who acts in good faith for the purpose of serving a justifiable and proper interest of the client will not be held liable for unintentional harm caused to third persons, particularly where the third person is an adverse party to litigation. We said:

To impose upon an attorney a duty of care to the adverse party would place the attorney in a position where his own interest would conflict with the interests of his client and prevent him from exerting a maximum effort on behalf of the client. It would place an undue burden on the profession and would diminish the quality of the legal services rendered to and received by the client. Where an attorney represents a client in litiga tion ... the public interest demands that attorneys in the proper exercise of their functions as such, riot be liable to adverse parties for acts performed in good faith and for the honest purpose of protecting the interests of their clients.

Id., 327 Pa.Superior Ct. at 427, 476 A.2d at 26 (emphasis added) (citations omitted). See also: Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980); Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981).

In Pennsylvania, “the litigant is the complete master of his own cause of action in matters of substance; he may press it to the very end regardless of the facts and law arrayed against him.” Archbishop v. Karlak, 450 Pa. 535, 539, 299 A.2d 294, 296 (1973). In this effort, the litigant is entitled to be represented by competent and zealous counsel whose loyalty is undivided. If the litigant refuses to capitulate when legal proceedings are commenced against him, counsel cannot do it for him. In the absence of consent by the client, counsel cannot properly agree to the entry of judgment or refrain from contesting a claim by an adverse party.

Appellant’s argument that it can recover on a theory of civil conspiracy must also fail. A civil conspiracy is a combination or agreement between two or more persons to commit an unlawful act or a lawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211, 412 A.2d 466, 472 (1979). The averments in appellant’s complaint were simply inadequate to state a cause of action for unlawful conspiracy between an attorney and his client who determined to contest appellant’s civil action.

For these reasons we agree with the trial court that appellant cannot recover against his debtor’s attorney in tort.

The order dismissing the trespass count in appellant’s complaint is affirmed. The order dismissing the count in assumpsit is reversed, and that count of the complaint is remanded for further proceedings. Jurisdiction relinquished.

      . The preliminary objections asserted also that an action based on counsel’s promise of personal guarantee was barred by the applicable statute of limitations. The trial court did not consider the applicability or effect of the statute of limitations, and neither party has argued this issue on appeal.

      . An offer by Damac to pay $20,000.00 in full settlement of Aetna’s claim had been rejected by Aetna.

      . The Act of April 26, 1855, P.L. 308, § 1, 33 P.S. § 3 provides that "[n]o action shall be brought ... to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.”


author:
WIEAND, Judge:
      CAVANAUGH, Judge,

text:
    484 A.2d 137
    Henry BUXBAUM and Grace Buxbaum, in her own right v. Federico A. PEGUERO, M.D. and Federico A. Peguero, M.D., P.A., a Corporation, Thomas Javian, M.D. and Thomas Javian Associates, Inc., a Corporation and Delaware Valley Medical Center. Appeal of Federico A. PEGUERO, M.D. and Federico A. Peguero, M.D., P.A., a Corporation. Henry BUXBAUM and Grace Buxbaum, H/W, in her own right v. Federico A. PEGUERO, M.D. and Federico A. Peguero, M.D., P.A., a Corporation, and Thomas Javian, Jr., M.D. and Thomas A. Javian, Jr., M.D. & Associates, Inc., a Corp. and Delaware Valley Medical Center, Inc., a Corp. Appeal of Thomas A. JAVIAN, Jr., M.D. and Thomas A. Javian, Jr., M.D. and Associates, Inc.
    Superior Court of Pennsylvania.
    Argued March 15, 1984.
    Filed Nov. 9, 1984.

      Bernard W. Smalley, Philadelphia, for Peguero, appellants (at No. 2516) and appellees (at No. 2517).
    Fredric L. Goldfein, Philadelphia, for Javian, appellants (at No. 2517) and appellees (at No. 2516).
    Carl M. Mazzocone, Philadelphia, for Buxbaum, appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

These are appeals from an order opening a judgment of non pros entered in a medical malpractice case after plaintiffs had failed to file a complaint within twenty days following service of a rule directing them to do so. Our examination of the record fails to reveal an abuse of discretion by the trial court. Therefore, we affirm.

The action was commenced by Henry and Grace Bux-baum who caused a writ of summons to issue naming Doctors Federico A. Peguero and Thomas A. Javian, Jr., and their respective professional corporations, as well as Delaware Valley Medical Center, Inc., as defendants. The summons was served on Dr. Javian and his corporation on April 15, 1982 and on Dr. Peguero’s corporation on April 17, 1982. Dr. Peguero, however, was not served personally until June 1, 1982. On April 20, 1982, a rule to plead was served upon the plaintiffs on behalf of Dr. Javian and his corporation. The rule was filed in the prothonotary’s office on April 26. A similar rule on behalf of Dr. Peguero was served on the plaintiffs on April 29 and filed the following day. When a complaint was not filed in accordance with the rule, judgments of non pros were entered in favor of Dr. Peguero and his corporation on May 25 and in favor of Dr. Javian and his corporation on May 26, 1982. A petition to open or strike these judgments was filed by the plaintiffs on May 28, 1982. After the trial court had opened the judgments of non pros, separate appeals were filed by the physician defendants and their corporations and consolidated for argument before this Court.

“A Petition to Open a judgment of non pros is addressed to the equitable powers of the court. It is a request to open a judgment of non pros by way of grace and not of right. Its grant or refusal is within the [trial] court’s discretion, which will not be reversed on appeal absent a showing of abuse of discretion.” Walker v. Pugliese, 317 Pa.Super. 595, 599, 464 A.2d 482, 484 (1983). See also: Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 64, 462 A.2d 793, 795 (1983); Hutchings v. Trent, 304 Pa.Super. 376, 378, 450 A.2d 729, 730 (1982); Kophazy v. Kophazy, 279 Pa.Super. 373, 375, 421 A.2d 246, 247 (1980); Thompson v. Hahn Motors, Inc., 269 Pa.Super. 271, 273, 409 A.2d 884, 885 (1979). In general, a judgment of non pros will not be opened unless three factors coalesce: “1) the petition must be timely filed; 2) the reason for the default must be reasonably explained or excused; and 3) the facts constituting grounds for the cause of action must be alleged.” Vorhauer v. Miller, 311 Pa.Super. 395, 401, 457 A.2d 944, 948 (1983). See also: Wurster v. Peters, 318 Pa.Super. 46, 49, 464 A.2d 510, 511 (1983); Chaplynsky v. Broad Street Hospital, 305 Pa.Super. 497, 501, 451 A.2d 757, 759 (1982); Stawiarski v. Hall, 300 Pa.Super. 67, 70, 445 A.2d 1302, 1303 (1982); Kennedy v. Board, of Supervi sors, 243 Pa.Super. 46, 52, 364 A.2d 442, 445 (1976). There is no dispute that the appellee-plaintiffs in this case have satisfied the first and third requirements. The only issue on appeal is whether the trial court properly concluded that appellees had reasonably explained their failure to file a complaint within the time allowed.

Appellees’ amended petition to open, filed June 1, 1982, stated: “Although the complaint to be filed in this matter was prepared for filing by May 10, 1982, plaintiffs were out of town, or otherwise unavailable for almost the entire month of May, 1982 up until May 24, 1982 and counsel for plaintiffs were [sic] therefore unable to obtain the requisite affidavit to be attached to the Complaint in order for it to be filed.” This is supported by a separate affidavit by Henry Buxbaum, which stated, in pertinent part, as follows: “On May 6, 1982 I, my wife Grace ... and our son ... did embark on a vacation trip in a camper during which trip I and my wife were not reachable by telephone, letter or any other means of communication, and which trip ended upon our return on May 24, 1982.” The amended petition stated further: “Counsel for plaintiffs was waiting only for the return of plaintiffs from out of town to prepare the requisite affidavit ... in order to file the Complaint in this matter____”

Appellants argue that the trial court abused its discretion in opening the judgment because this was not a reasonable excuse for the delay in filing the complaint. Appellants contend that counsel for appellee-plaintiffs could have avoided the judgment of non pros by (1) attaching a verification by a non-party as permitted by Pa.R.C.P. 1024(c); (2) by petitioning the court for an extension of time; or (3) by requesting additional time from appellants or their counsel. Because plaintiff’s counsel did none of these things, it is argued, the default cannot be excused. These arguments concede, however, that in any event the default was attributable to an error of counsel. There was no intentional delay by the plaintiff-appellees.

“While, generally speaking, a litigant is bound by the actions or inactions of his counsel ... when a plaintiff places his case in the hands of reputable counsel he will not be turned out of court if the delay complained of was almost entirely on account of neglect or oversight of his counsel....” White v. Alston, 231 Pa.Super. 438, 443, 331 A.2d 765, 768 (1974), quoting Poluka v. Cole, 222 Pa.Super. 500, 504, 295 A.2d 132, 134 (1972). “Any person entrusting a matter to an attorney in this Commonwealth should be able to believe that the matter will be competently and diligently handled.” Therefore, attorney neglect may provide sufficient justification for a party’s failure to respond to process, especially where there have been no negotiations or attempts by the opposing party to draw the attention of counsel to the case or to ward off a possible default judgment. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 584-585, 442 A.2d 689, 691 (1982).

In Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976), we explained the overriding importance of equity in applying the three-part test for opening a judgment:

Our consideration as to the presence or absence of these requirements is tempered by our application of equitable principles, for we sit as would a chancellor in equity to determine how best justice can be served. Our deliberations of an equitable nature will be addressed to a weighing of the prejudices inflicted upon the opposing parties by whatever inaction of counsel occasioned the right of the successful party to obtain judgment.

Id., 239 Pa.Superior Ct. at 329, 361 A.2d at 426 (citations omitted). In Toplovich, appellants’ counsel had negligently failed to mail an answer to the prothonotary in time to avoid a default judgment. This Court held that the trial court had abused its discretion when it refused to open the judgment.

Here, as the trial court observed, the complaint was filed within two weeks of the time therefor, and no prejudice resulted to the defendant-appellants as a result of the late filing. “Our task on review of discretion is not to substitute our judgment for that of the [trial] court but to determine if the ... court’s action was manifestly unreasonable.” Saint Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Insurance Co., 239 Pa.Super. 492, 501, 362 A.2d 1052, 1058 (1976). We cannot conclude under the circumstances of this case that it was manifestly unreasonable to excuse the negligence of counsel and open the judgment of non pros.

We agree with appellants that the procedure followed by appellees and by the trial court was deficient. After appellants had claimed insufficient knowledge or information and demanded proof of appellees’ absence at the time when their affidavit was required, the proper means by which appellees could establish that fact was as provided in Pa.R.C.P. 209. The depositions required by that rule cannot be avoided by substituting an ex parte affidavit. See: Hutchings v. Trent, supra, 304 Pa.Super. at 382 n. 2, 450 A.2d at 732 n. 2. However, appellants did not file an answering affidavit and have not denied the veracity of the facts recited in the petition or affidavit except via a demand for proof. To remand for the taking of depositions under the circumstances of this case would merely delay disposition by requiring appellees to state anew the fact which they have already stated under oath. See: Bensalem Township v. Terry, 317 Pa.Super. 380, 464 A.2d 371 (1983). Appellants have not suggested on appeal that the default which enabled them to obtain the judgment of non pros was caused by anything other than counsel’s neglect. Under these circumstances, we will not remand for depositions. It seems clear that the trial court did not abuse its discretion by opening the judgment of non pros. All the equities required it.

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the majority’s determination that appellant’s counsel’s negligence constitutes a reasonable explanation or excuse to provide a basis for the opening of the judgment of non pros.

Counsel’s neglect in this case can not be reasonably explained since there were, as the majority indicates, feasible alternatives available which counsel could have employed in order to avoid the judgment of non pros. Moore v. Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983).

      . Delaware Valley Medical Center, Inc. did not cause a judgment of non pros to be entered and is not a party to the present appeal.

        . Although an appearance had been entered on behalf of both Dr. Peguero and his corporation, the rule to plead purported to be filed only on behalf of Dr. Peguero individually. Because of the decision we reach, we find it unnecessary to determine whether a judgment of non pros entered in favor of the corporation was susceptible to a motion to strike.


text:
    484 A.2d 141
    James C. McBRIDE, v. Meredith Fox McBRIDE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 10, 1984.
    Filed Nov. 9, 1984.

      Norman L. Goldberg, Media, for appellant.
    Charles Nistico, Chester, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

This appeal is from a final decree in divorce. Appellant’s sole contention is that the trial judge erred in granting a divorce pursuant to Section 201(d)(1) of the Divorce Code when a portion of the three year separation period was allegedly due to an Order entered under the Protection From Abuse Act. We reject appellant’s argument and affirm the decree of divorce.

James McBride and Meredith Fox McBride lived together for approximately one year prior to their marriage on November 26, 1976. They continued to live together until January 27, 1977, when James, the appellee, was arrested at the marital residence following an argument with his wife, Meredith, who is the appellant herein. Following this altercation, James was charged with unlawful possession of firearms and assault. On April 26, 1977, he was sentenced to two years probation and continued psychiatric treatment. Thereafter, appellee took up residence in the basement of a duplex owned by appellant. Appellee did not then, nor at any later time, return to and cohabit with appellant, although there apparently were sporadic sexual liaisons prior to November, 1977.

On November 18, 1977, appellant filed a petition pursuant to the Protection From Abuse Act, 35 P.S. § 10181 et seq. A final order was not entered until July 19, 1978, when, by mutual consent of the parties, appellee was enjoined from abusing or harassing appellant and was excluded from the marital residence for a period of one year. In August of 1978, appellant moved to Florida, where she continues to reside at the present time.

On July 1, 1980, James filed a complaint in divorce alleging that the marriage was irretrievably broken and that the parties had been living separate and apart for a period in excess of three years, commencing on or about January 27, 1977. Appellant denied via answer that the parties had lived separate and apart as defined by the Divorce Code of 1980. On June 25, 1982, following eviden-tiary hearings, the Master recommended a divorce. Appellant’s exceptions to the Master’s Report were dismissed by the trial court, and a final decree in divorce was entered on November 3, 1982. This appeal followed.

When reviewing an order granting a divorce, this Court bears the responsibility for making a de novo evaluation of the record; it must decide, independently of the trial court and the Master, whether a legal cause of action in divorce exists. Jones v. Jones, 311 Pa.Super. 407, 410-411, 457 A.2d 951, 952 (1983); Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980). Although a Master’s Report is advisory only, it is given the fullest consideration, particularly on the issue of credibility of witnesses. Eichmann v. Eichmann, 319 Pa.Super. 100, 101, 465 A.2d 1248, 1249 (1983); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 283, 463 A.2d 1196, 1197 (1983); Herwig v. Herwig, 279 Pa.Super. 65, 70, 420 A.2d 746, 748 (1980).

Section 201(d)(1) of the Divorce Code (23 Pa.C.S. § 201(d)(1)) contains two requirements for a unilateral, no-fault divorce. First, the marriage must be irretrievably broken; and second, the parties must have lived separate and apart for at least three years. The definitional section of the Divorce Code, at 23 Pa.C.S. § 104, defines separate and apart as the “complete cessation of any and all cohabitation.” Cohabitation, although not defined statutorily, is defined by Webster’s New Collegiate Dictionary as “living together as husband and wife.” Similarly, Ballentine’s Law Dictionary defines cohabitation as “[a] dwelling together of man and woman in the same place in the manner of husband and wife.” The definitions are appropriate for our purposes and are followed pursuant to the mandate of Section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903, that “[w]ords and phrases shall be construed ... according to their common and approved usage....”

From this we are able to discern a legislative intent that “living separate and apart” be construed as living in quarters separated physically and without sharing the incidents or attributes customarily attached to the marital relationship. More specific definition of the words “living separate and apart” is unnecessary because of the additional statutory requirement that the marriage be irretrievably broken. Thus, a divorce cannot be granted merely because the parties have been living separate and apart for three years. It must also appear that the marriage be “irretrievably broken.”

Examination of the facts in the instant case discloses that appellee was entitled to a decree in divorce pursuant to Section 201(d)(1). There was an irretrievable breakdown of the marriage and the parties had lived separate and apart for more than three years.

We reject appellant’s argument that there must be excluded from the necessary three year period that time during which appellee was required by consent decree, entered pursuant to the Protection From Abuse Act, to remain absent from the marital home. The no-fault divorce provision does not require that the parties’ living separate and apart be the result of a voluntary decision reached and agreed to by both parties; and this Court will not rewrite the statute to impose such a requirement. Indeed, in view of the requirement that the marriage be irretrievably broken, it seems unnecessary, if not unwise, to require that the separation be wholly voluntary before a no-fault divorce can be entered.

To accept appellant’s argument in this case, as the learned trial court sagely observed,

would mean that no wife who files a Protection from Abuse Action and thereafter obtains an Order, would be permitted to obtain a [no-fault] divorce from her husband until at least three years after the termination of the Order. This result is not only inconsistent with the purposes and objectives of the Divorce Code of 1980, but with those of the Protection from Abuse statute. (Emphasis in original opinion).

As the Master observed, in this case it was the wife defendant in the divorce action who had initiated legal proceedings to expel her husband, the plaintiff in the divorce action. It was she who had desired and effected a court ordered separation, not her husband. There is no requirement under the no-fault provisions of the Divorce Code which would exclude a period of separation merely because the husband’s fault, if such was the case, caused the wife to seek and ultimately agree to a decree for separate cohabitation. It was the intent of the legislature to do away with and exclude fault as an essential ingredient in no-fault divorce actions. We will not by our interpretation of the statute reimpose such a requirement. The divorce contemplated by Section 201(d)(1) is available to either party irrespective of fault. It is not available only to an innocent and injured spouse.

Appellant’s reliance on McKeone v. McKeone, 38 Mich. App. 444, 196 N.W.2d 866 (1972), is misplaced. That was an action for divorce based upon the defendant’s extreme and repeated cruelty. The action was dismissed because the plaintiff failed to prove the grounds relied upon. The court’s suggestion that “[o]bedience to a court order which causes an enforced separation ... [cannot] be considered justification for a judgment of divorce ...” was made in the context of a fault divorce action and was not an attempt to define the requirements for a divorce based on statutory “no-fault” considerations. Id. 38 Mich.App. at 446, 196 N.W.2d at 867.

The parties in the instant case have lived separate and apart for more than three years. Their marriage is irretrievably broken. Whether one or the other caused the separation is irrelevant. The court properly entered a decree in divorce under the no-fault provision of 23 Pa.C.S. § 201(d)(1).

The decree is affirmed.


author: CIRILLO, Judge: POPOVICH, Judge,

text:
    484 A.2d 144
    COMMONWEALTH of Pennsylvania v. Donald TYLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Nov. 9, 1984.

      Gary P. Heslin, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   CIRILLO, Judge:

On June 9, 1972 the appellant, represented by counsel, entered a negotiated guilty plea for three years probation on charges of burglary, assault on a police officer, and resisting arrest. Judge Mirarchi accepted the plea and advised the appellant of his right to appeal and the grounds upon which such an appeal could be made. On November 20, 1973 appellant appeared before Judge Mirarchi in violation of his probation. He was sentenced to a new probationary term.

On December 13, 1978, six years and six months after the guilty plea, the appellant once again appeared before Judge Mirarchi in violation of his probation. Probation was revoked and appellant was sentenced to ten to twenty years imprisonment. On October 26, 1979, seven years and four months after the guilty plea, appellant filed a petition under the Post Conviction Hearing Act. In the petition the appellant contends that he is entitled to relief based on an inadequate guilty plea colloquy.

The issue with which we are confronted was addressed by our Court in Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983) where the appellant sought relief based on defective guilty plea colloquies. See also Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa. 516, 452 A.2d 844 (1983). The appellant in Kale, as does the appellant in the instant case, contended that the colloquies were defective in that they failed to recite the elements of the offenses to which the pleas were being entered and that counsel was ineffective for failing to be certain that the pleas so entered were knowing, intelligent and voluntary.

In Kale and in the case at bar the appellants both failed to explain the delays in filing their requests.

These unexplained delays bar a consideration of the merits of the several claims which appellant seeks to assert in collateral attacks on his prior convictions. Commonwealth v. Shaffer, 498 Pa. 342, 354, 446 A.2d 591, 597 (1982) (Concurring Opinion by Roberts, J., with O’Brien, C.J., and Nix, J., joining); Commonwealth v. Minarik, 493 Pa. 573, 583, 427 A.2d 623, 628-629 (1981) (Concurring Opinion by Roberts, J., with O’Brien, C.J., and Nix, J., joining). See also: Commonwealth v. Gardner, [499] Pa. [263, 266] n. 2, 452 A.2d 1346, 1347 n. 2 (1982); Commonwealth v. Jumper, 494 Pa. 451, 454, 431 A.2d 941, 942 (1981); Commonwealth v. Shore, 487 Pa. 534, 541, 410 A.2d 740, 744 (1980) (Concurring Opinion by Roberts, J.): Commonwealth v. Roach, [307] Pa.Super. [506, 509], 453 A.2d 1001, 1003 (1982). Cf. Commonwealth v. Thompson, 302 Pa.Super. 19, 26, 448 A.2d 74, 77 (1982);
In Commonwealth v. Shaffer, supra, a majority of the Supreme Court, in an opinion by Flaherty, J., repeated the principle of law which holds: “When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing ... it is well established that ‘a showing of prejudice on the order of manifest injustice,' Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified.” Id. 498 Pa. at 346, 446 A.2d at 593 (emphasis in original).

Commonwealth v. Kale, supra 312 Pa.Super. at 72, 458 A.2d at 241.

Appellant dropped his appeal from the sentence imposed following his revocation of probation. No action was taken until 7 years and 4 months after the guilty plea when he filed his Post Conviction Hearing Act (PCHA) petition. Appellant alleges no extraordinary circumstances to explain why the issue was not raised. Nor does he offer any explanation why, given the opportunity to pursue the matter, it was withdrawn and discontinued. Commonwealth v. Sheid, 443 Pa. 82, 278 A.2d 160 (1971). See also Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979) (where the court stated that failure to raise an issue on direct appeal gives rise to a rebuttable presumption of a knowing and understanding failure); Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983). See also Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983). Accordingly, the appellant has waived his right to attack his 1972 guilty plea colloquy.

Assuming arguendo that appellant could challenge his guilty plea colloquy, and counsel’s ineffectiveness with regard to the defective plea, his claims would fail. He states that he did not know what the crime of burglary was until the night before the evidentiary hearing. The on the record colloquy belies appellant’s assertions. He admitted that he had previously been convicted of burglary six times, that he pled guilty to avoid going back to the State Correctional Institution at Camp Hill, and finally that he was satisfied with the plea bargain for probation. He cannot later be heard to complain that counsel was ineffective. Commonwealth v. Newell, supra. See also Commonwealth v. Burno, 310 Pa.Super. 564, 456 A.2d 1080 (1983).

Appellant also raises the issue of the applicability of Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) to his case. He states that his guilty plea colloquy was defective because it did not satisfy the requirements set forth in Ingram. This argument is without merit. The Ingram requirements do not apply to guilty pleas accepted before the date of the decision, January 24, 1974. See also Commonwealth v. Dade, 275 Pa. 160, 418 A.2d 661 (1980); Commonwealth v. Schork, 230 Pa.Super. 411, 326 A.2d 878 (1974) affirmed 467 Pa. 248, 356 A.2d 355 (1976).

Appellant received a very favorable bargain in exchange for the plea entered. Testimony given by him indicates his satisfaction with the bargain. It was not until Judge Mirarchi revoked appellant’s probation that he sought to complain about his guilty plea for the first time. “In these circumstances we shall not give appellant the benefit of an option — a jury trial — that he himself would not originally have chosen.” Commonwealth v. Simpson, 290 Pa.Super. 11, 434 A.2d 103 (1981).

Defendants have the burden of showing ineffectiveness of counsel as a basis for relief in post conviction hearings. Commonwealth v. LaSane, 479 Pa. 629, 389 A.2d 48 (1978). Whether a “particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest” is the test for effectiveness of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967).

Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). In Shore, counsel failed to file post trial motions, thus, failing to preserve issues for appellate review. Ruling that this did not constitute per se ineffectiveness of counsel, the court reasoned that applying the Maroney test, if the issue were without merit, counsel could not be deemed ineffective for failing to preserve it. Likewise, we cannot find counsel ineffective for failing to preserve for review an issue which was without any merit.

“[Appellant's prolonged silence here becomes deafening in light of the rights which the appellant claims he was denied.” Commonwealth v. Courts, supra 315 Pa.Super. at 134, 461 A.2d at 833.

Accordingly, we affirm the order of the trial court.

DEL SOLE, J., concurs in the result.

POPOVICH, J., files a concurring statement.

POPOVICH, Judge,

concurring:

I agree that a waiver has occurred. As a result, any discussion concerning the merits of the issues raised is superfluous.


author: OLSZEWSKI, Judge:

text:
    484 A.2d 146
    COMMONWEALTH of Pennsylvania v. Robert SCHULTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued August 22, 1984.
    Filed Nov. 9, 1984.

      James F. Geddes, Jr., Wilkes-Barre, for appellant.
    George O. Wagner, District Attorney, Danville, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This appeal is undertaken from the judgment of sentence imposed after appellant was convicted by a jury and sentenced to serve a term of not less than four months nor more than two years for recklessly endangering another person and a similar and concurrent term for simple assault. We reverse and remand for a new trial.

Appellant was charged with recklessly endangering another and simple assault after he was arrested for pointing a shotgun at his neighbor. This incident followed a heated exchange over a boundary dispute concerning their adjacent properties.

During the presentation of his case, appellant called several character witnesses to attest to his good reputation in the community. After both sides rested, the court instructed the jury on the use of that character evidence:

... the defendant produced several character witnesses who testified that the defendant’s reputation for truthfulness and honesty were “good” or “fine.”
It’s important that you understand how this testimony by the character witnesses should be treated in this case. Of course, from time immemorial, a good reputation has been regarded as an asset of a person and the law permits that person to avail himself of that reputation evidence in support of his innocence once he has been accused in criminal court. Reputation evidence is substantive evidence to be weighed and considered along with all the other evidence and testimony in the case. But if the Commonwealth has shown beyond a reasonable doubt that the defendant is guilty, even though he may have had a good reputation, he is not free to go acquitted simply because of that reputation.
You must decide for yourselves whether to accept the testimony of good reputation and whether it points to innocence in this case and whether it will raise a doubt in your mind that such a man with such a reputation would be likely to commit a crime of the nature charged herein. A distinct issue is not created by this type of testimony nor is it brought into the case as mere make-way evidence. It is to be taken into account with all the other evidence in the case and if the whole of the evidence, in total, is sufficient in your judgment to indicate that the defendant is not guilty or to create a reasonable doubt of his guilt in your minds, then the defendant is entitled to be found not guilty.

Charge of the lower court at 14-15. Counsel for appellant did not object to this charge and appellant was subsequently convicted.

In this appeal, appellant, represented by new counsel, contends that prior counsel was ineffective for not objecting to the court’s charge even though the charge failed to state that character evidence alone may be sufficient to raise a reasonable doubt and thus justify an acquittal. We agree.

It has long been the law in this Commonwealth that a defendant in a criminal trial may introduce evidence of his own good character in order to attempt to convince the trier of facts of his innocence. Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971); McCormick on Evidence, § 191 (2d.Ed.1972). As stated by our Court in Commonwealth v. Padden, 160 Pa.Super. 269, 50 A.2d 722 (1947):

Evidence of good character is substantial and positive evidence, not a mere make way to be considered in a doubtful case, and according to all our authority, is an independent factor which may of itself engender a reasonable doubt or produce a conclusion of innocence. To be sure, it is to be considered with all the other evidence in the case. But it is not to be measured with or by other evidence. Its probative value, its power of persuasion, does not depend upon, and is not to be measured by, or appraised according to, the might or the strength in the Commonwealth’s case. Even though, under all the evidence a jury could reach a conclusion of guilt, still if the character evidence creates a reasonable doubt or establishes innocence a verdict of acquittal must be rendered.

160 Pa.Super. at 275, 50 A.2d at 725 (citations omitted; emphasis in original).

As is evidence from the above, character evidence is extremely important evidence and is not to be taken lightly. Indeed, our courts have buttressed the importance of this evidence further by requiring that a jury be instructed such evidence, in and of itself, may be sufficient to justify an acquittal. Commonwealth v. Arenella, 306 Pa.Super. 119, 452 A.2d 243 (1982); see also Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981); Commonwealth v. Cleary, 148 Pa. 26, 23 A. 1110 (1892); Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972). The court in Arenel-la cited with approval the following charge: “In some instances, evidence of good reputation may of itself work an acquital or create a reasonable doubt.” See 306 Pa.Super. at 128-129, 452 A.2d at 248. In the instant case, appellant was entitled to an instruction that evidence of good character may by itself be sufficient to raise a reasonable doubt.

Counsel, however, failed either to request such instruction or to challenge its absence. The instructions actually given in the case at bar are virtually indistinguishable from those given in Arenella. Id., 306 Pa.Superior Ct. at 127-128, 452 A.2d at 248. Since our Court has not approved the Arenella instruction, we must disapprove the instant instruction.

We can find no reasonable basis for counsel’s inaction. Under the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we find appellant was denied the assistance of counsel. The judgment of sentence entered below is hereby reversed and a new trial granted.

Judgment of sentence reversed. Remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant was subsequently placed on probation, ordered to pay the costs of prosecution together with a $2,000.00 fine, and ordered to turn over his guns to the Montour County Adult Probation Office.

      . In his brief, appellant also contends that the lower court erred in failing to (1) charge the jury correctly on the crime of recklessly endangering; (2) provide trial counsel with transcription of the record in order to prepare for post-trial motions; (3) admit certain testimony and exhibits into evidence; and, (4) grant post-trial motions. We have reviewed each of these arguments thoroughly and we are convinced that they lack merit. Appellant also contends that the court abused its discretion at sentencing, particularly when it ordered the confiscation of his guns. Since we have determined that a new trial is warranted, we need not consider this argument.

      . We do not deem it necessary to reproduce in total the instruction given in Arenella. See 306 Pa.Superior Ct. 127-28, 452 A.2d 247-48.

      . We have chosen to grant a new trial, rather than remand for an evidentiary hearing on counsel’s effectiveness because we ourselves feel that counsel's failure to object to the lower court's instruction was totally unsubstantiated. In light of our strong sentiments, we believe that a remand for an evidentiary hearing would be a waste of precious judicial time. Accordingly, we order a new trial be granted.


text:
    484 A.2d 148
    Concetta GALLO v. YAMAHA MOTOR CORPORATION, U.S.A., Bruce Ott, Steven J. Polansky and Pocono West, Inc., a Pennsylvania Corporation, and Yamulla Trucking, Inc. and Yamulla Enterprises, Inc., t/a Lake Harmony Estates. Appeal of YAMULLA TRUCKING, INC. and Yamulla Enterprises, Inc., t/a Lake Harmony Estates.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1984.
    Filed Nov. 9, 1984.

      Robert E. Simpson, Jr., Easton, for appellants.
    James C. Hogan, Easton, for appellees.
    Before CIRILLO, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal follows denial of appellants’ motion to amend their answer in an action initiated by Concetta Gallo. For the reasons below, we vacate the order and remand the case to allow the requested amendment.

Concetta Gallo suffered injuries in a collision involving a snowmobile on which she was a passenger. She sued Yamaha Motor Corporation, U.S.A. (hereinafter “Yamaha”) as distributor of the snowmobile, Bruce Ott as owner and operator of the snowmobile, and Steven J. Polansky as owner and operator of an automobile with which the snowmobile collided, and Pocono West, Inc., the purported owner of the road on which the accident occurred. On May 15, 1980, original defendant Yamaha filed a complaint joining appellants as additional defendants. Yamaha alleged that the accident resulted from appellants’ failure to maintain and inspect the private road where the accident occurred and/or to give proper warning to the users of the road. Appellants filed an answer and new matter on or about January 15, 1981.

In January of 1983 appellants filed a motion to amend the pleadings to reflect the applicability of the Recreation Use of Land and Water Act, Act of February 2, 1966, P.L. (1965) 1860, 68 P.S. §§ 477-1, et seq. That statute, in pertinent part, provides: “... an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” 68 P.S. § 477-3.

The trial court denied appellants’ motion to amend. On appeal, we face a single issue: should the lower court have granted appellants leave to amend their pleadings?

Under Pa.R.C.P. 1033, “A party either by filed consent of the adverse party or by leave of court, may at any time ... amend his pleading.” The decision to permit an amendment to pleadings is committed to the sound discretion of the trial judge. That discretion however is not unfettered. Our courts have established as parameter a policy that amendments to pleadings will be liberally allowed to secure a determination of cases on their merits. Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983) (and cases cited therein).

Appellee contends allowance of amendment will prejudice her cause. The extent of this putative prejudice is unclear. In her brief, appellee argues prejudice on the grounds that (1) she has entered into a joint tortfeasor’s release with Polansky, one of the original defendants; and (2) the discovery process is virtually complete. At argument, counsel for appellee, referring to pp. 14-15 of appellee’s brief, withdrew the first claim of prejudice. What remains reduces to an argument that the passage of time should bar appellants’ attempt to amend the pleadings. While a court may disallow amendment where prejudice to the other party would result, the facts of this case do not give rise to a showing of prejudice sufficient to bar amendment. Our courts have, in a number of opinions, developed the concept of prejudice under Rule 1033. As the Court explained in Bata v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (allowing an amendment to a complaint after the trial court’s decree was entered):

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed____

448 Pa. at 380, 293 A.2d at 357 (emphasis in original; footnote omitted).

We have carefully reviewed the briefs and the record. Consonant with the policy favoring liberal allowance of amendment, we conclude the lower court erred in denying appellants’ motion to amend.

Order vacated and case remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

      . By stipulation of counsel, Pocono West, Inc. was dropped as party defendant.

      . Appellants also requested addition of the defense of statute of limitations. At argument, appellants abandoned that claim.