author: WICKERSHAM, Judge:

text:
    434 A.2d 1243
    Hermine S. MITCHELL and Sidney W. Frick, Executors of the Estate of Herman Strickler, deceased and Pauline Strickler v. UNITED ELEVATOR COMPANY, INC., Westinghouse Electric Company, and Pennsylvania Real Estate Investment Trust. Appeal of UNITED ELEVATOR COMPANY INC. (Two Cases). Appeal of WESTINGHOUSE ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued May 26, 1981.
    Filed Aug. 28, 1981.

      George D. Sheehan, Jr., Philadelphia, for appellants (at Nos. 2087, 2088) and for appellees (at No. 2212).
    William C. McGovern, Philadelphia, for appellants (at No. 2212) and for appellees (at Nos. 2087, 2088).
    Charles F. Voltz, Jr., Philadelphia, for appellees.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   WICKERSHAM, Judge:

This case arises from injuries sustained by plaintiff Herman Strickler (hereinafter “plaintiff”) when he fell on June 20, 1974 while entering an elevator on the sixth floor of the apartment building where he and his wife resided at 5400 Wissahickon Avenue, Philadelphia. At the time of the incident, plaintiff was 93 years old and had failing eyesight. He had peripheral vision, however, and was able to walk by himself with the help of a cane. Unknown to plaintiff, when he stepped into the elevator car, the floor was ten to twelve inches below the level of the building floor. As a result, plaintiff fell and suffered serious injuries including a fractured hip, which necessitated removal of the femoral head and replacement with a prosthetic device. Plaintiff died of causes unrelated to the accident in February, 1976 and was substituted as a party herein by his executors, Hermine Mitchell and Sidney Frick. Mrs. Strickler, who was 84 at the time of the accident, also pursued a claim herein for loss of consortium.

Named as defendants were Pennsylvania Real Estate Investment Trust (hereinafter PREIT), the owner of the building; Westinghouse Electric Corporation (hereinafter Westinghouse), which had designed the elevator in question and had installed it in 1950; and United Elevator Company (hereinafter “United”), which held the contract for maintenance of the elevator, and which, pursuant to that contract, had a representative working on the subject premises at the time of the accident. Defendant United also filed a cross claim against co-defendant Westinghouse. For reasons to be discussed below, a default judgment was entered in favor of plaintiff and against United in January 1976, thereby limiting the trial as to that defendant to the issue of assessment of damages. Plaintiff’s case against Westinghouse was premised on alternative theories of negligence, strict liability and breach of warranty. The latter two theories were also alleged in United’s crossclaim.

The trial herein was conducted before the Honorable John J. McDevitt 3rd and a jury from September 11 to 21, 1979. At the conclusion of the plaintiff’s case, a non-suit was entered in favor of defendant PREIT. The jury thereafter answered interrogatories which mandated a verdict in favor of plaintiff’s estate in the amount of $102,529 against both United and Westinghouse and in favor of plaintiff’s wife against these same defendants in the amount of $25,000. The jury found in favor of Westinghouse with respect to the doctrine of strict liability and breach of warranty, but imposed liability by finding that Westinghouse had negligently designed the elevator. Defendants United and Westinghouse thereafter filed timely post-trial motions. The post-trial motions of both defendants were denied in an exhaustive and well-considered opinion of Judge McDevitt filed July 31, 1980. Following entry of judgment on the verdict, the present appeals were taken.

I. Appeal of United Elevator Company, Inc.

United’s first argument, and the one it pursues most vigorously, is that the trial court erred in denying its motion to strike the default judgment which had first been entered against it on January 19, 1976. This issue has already been reviewed by this court in a decision rendered on July 12, 1978. Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 391 A.2d 614 (1978).

As outlined in that opinion, authored by Judge Hoffman, plaintiffs, on October 20, 1975, served interrogatories on defendants United, Westinghouse and PREIT and directed that they be answered within twenty days. When no answers were forthcoming, plaintiff on December 5, 1975 notified all three defendants of his intention to initiate sanction procedures pursuant to Philadelphia Local Civil Rule 4005* (d) (later renumbered 145). Attached to the letter were copies of (1) a notice of intention to file a praecipe for an interlocutory order, (2) a certification of service of the notice of intention to file a praecipe and an interlocutory order, (3) a praecipe for an interlocutory order, and (4) an interlocutory order. On December 16, 1975, the prothonotary entered an interlocutory order directing United, Westinghouse, and PREIT to file answers to the interrogatories within 30 days. Westinghouse and plaintiff then stipulated, on December 29, 1975, that the interlocutory period for Westinghouse would be extended to February 2, 1976.

When neither United nor PREIT filed answers by the deadline, plaintiff, on January 19, 1976, filed a supplemental praecipe directing the prothonotary to enter a final order of judgment by default. On the same date, the prothonotary entered such a judgment as to liability against United and PREIT.

On January 20, 1976, PREIT filed answers to interrogatories, and, on February 27, 1976, both PREIT and United filed petitions to strike and/or open the judgment. In its petition, United asserted that plaintiff failed to notify it properly under Local Rule 4005* (d) and that this local rule is in direct violation of Pa.R.C.P. No. 4019, thereby rendering the judgment void. On May 20, 1976, the court per Judge Lagakos, dismissed both petitions. United and PREIT then filed motions requesting reargument before Judge Lagakos. On June 17, 1976, PREIT also filed an appeal to the Superior Court. United, however, did not pursue that remedy. On November 18,1976, Judge Lagakos denied the motions for reargument, after which United filed an appeal, on November 30, 1976, from both the May 20 and November 18 orders. On December 15, 1976, our court quashed United’s appeal as untimely. No petition for alloca-tur was subsequently filed.

United’s next tactic was the filing, on January 20,1977, of a petition and rule to show cause why the court’s orders of May 20 and November 18, 1976 should not be reconsidered. This action was taken after argument in the superior court on PREIT’s appeal from Judge Lagakos’ denial of the motion to strike. We subsequently upheld PREIT’s appeal on the issue that timely notification had not been given pursuant to the local rule. Strickler v. United Elevator Co. Inc., (Appeal of Pennsylvania Real Estate Investment Trust), 248 Pa.Super. 258, 375 A.2d 86 (1977) (hereinafter “Strickler I”). In light of that decision, Judge Greenberg, on August 3, 1977, entered an order granting United’s petition for reconsideration. Plaintiff then pursued an appeal from Judge Greenberg’s ruling, resulting in the aforementioned opinion by Judge Hoffman on July 12, 1978 (hereinafter “Strickler II”).

Despite that opinion, United again moved on the eve of trial that the judgment against it be stricken. Judge McDevitt denied that motion, which is now cited as ground for a new trial. The thrust of United’s argument is that the judgment entered by the prothonotary in January 1976 was void by virtue of the superior court’s holding in Gonzales v. Procaccio Brothers Trucking Company, 268 Pa. Super. 245, 407 A.2d 1338 (1979). The court therein ruled that Local Rule 145 was in conflict with Pa.R.C.P. No. 4019 and was therefore invalid, a position which United had earlier raised in its own appeal. Given the Gonzales holding, United goes on to argue that a void judgment may be stricken at any time, regardless of laches. Since there is no dispute that the judgment herein was premised on defective procedure, both with respect to the failure to give proper notice (the holding in Strickler I) and with respect to the absence of a prior judicial determination (the holding in Gonzales). United strongly contends that it is now incumbent on the court to grant the relief requested.

However, United fails to overcome the problem which Strickler II recognized when United attempted to invoke the holding in Strickler I, i. e., the issue of waiver. As stated by Judge Hoffman in Strickler II:

Appellee argues that the judgment is void and, therefore, can be attacked at any time. It is true that laches does not run against a void judgment, and, that such a judgment must be stricken without regard to passage of time, (citations omitted) However, in each case cited, although there was a lapse of time between the entry of the judgment and the party’s motion to strike, the petition to strike was the first time that any party attacked the judgment. No case holds that a party may bring successive motions to strike before different courts until he is victorious. In the instant case, appellee filed a motion to strike in a court with jurisdiction over both the subject matter and the parties. In the motion, appellee argued that the judgment was void because of the conflict between Philadelphia Local Rule 4005*(d) and Pa.R.Civ.P. 4019. The court refused to strike the judgment as void. This refusal constituted a final, appealable order. Appel-lee did not file an appeal within 30 days of the judgment. Having failed to preserve his contentions for appellate review, appellee is now bound by the prior decision.

Strickler v. United Elevator Co., Inc., supra, 257 Pa.Super. at 549-50, 391 A.2d at 618. (footnote omitted).

We rely on that reasoning for purposes of deciding the present case. While Strickler II did not go to the merits of the question later decided in Gonzales, it is clear that the doctrine of waiver, as articulated in Strickler II to prevent a reconsideration on the basis of Strickler I, should also apply to the present attempt at reconsideration on the basis of Gonzales.

Our court has long recognized that any coherent system of justice must be grounded by the principle of finality. The doctrine of waiver expresses that principle and prevents intolerable disruptions to the orderly disposition of cases. In Strickler II, the court stated:

Pennsylvania case law is clear that a party may waive its right to present its contentions in court. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Waiver frequently occurs when a litigant fails to follow established and approved methods of raising allegations of error in the lower court or in appellate courts. For example, waiver occurs: when counsel fails to object to the charge of the court, Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977); when counsel fails to file a timely Rule 1100 motion. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977); when counsel fails to raise a defense in the lower court, Policino v. Ehrlich, 478 Pa. 5, 385 A.2d 968 (1978); and when counsel fails to raise an issue on appeal, Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977). Moreover, if a disappointed litigant fails to raise an issue on direct appeal in a court of last resort, an appellate court may invoke the waiver doctrine to preclude collateral attack, Commonwealth v. Romberger, supra; Commonwealth v. Gilmore, 464 Pa. 464, 347 A.2d 305 (1975). Even errors of constitutional dimension may be waived. Commonwealth v. Romberger, supra.

Strickler v. United Elevator Co., Inc., supra, 257 Pa.Super. at 548-49, 391 A.2d at 617.

United’s present argument represents a challenge to the principle of finality and the concomitant doctrine of waiver. If accepted, United’s position would mandate the striking of untold numbers of judgments wherein no appeal was ever taken. Of course, the implications herein go beyond those cases determined under former Local Rule 145. A ruling for United would mean that any defeated litigant could cite a subsequent change in the law to have a judgment stricken. We are opposed to any such undermining of the orderly appellate process.

Were this court to adopt United’s position, it would be inconsistent with its reasoning articulated in Tice v. Nationwide, 11 Pa.Super. 220, 425 A.2d 782 (1981) (Tice II). United misconstrues the holding of Tice II, which holds (1) that a default judgment must be stricken if an appeal was pending when Gonzales was handed down and, (2) that waiver would not bar the application of Gonzales even though the invalidity of Rule 145 was not argued in the lower court. Instantly, not only was there no appeal pending, it had already been decided in Strickler II and, a priori, waiver would apply because United had argued the invalidity of Rule 145 in the lower court and had waived its appellate rights by not filing a timely appeal. The concurring opinion of Judge Spaeth in Tice II clearly anticipated the argument which United now advances:

Second, suppose a motion to strike a judgment entered under Rule 145, denial of the motion, and either no appeal or an unsuccessful appeal, all before Gonzales. In the interests of finality, the judgment should not be stricken on the basis of Gonzales. In Washington v. Liberi, 273 Pa.Super. 48, 416 A.2d 1082 (1979), we refused to apply Gonzales retroactively in a case where a motion to strike, not raising the invalidity of Rule 145, had been made in 1977 and denial of the motion was not appealed. (The appellant had unsuccessfully petitioned the lower court for reconsideration of its denial, again without raising the invalidity issue.) I am not persuaded to a contrary result by broad language in older cases about an appellate court sua sponte striking a “void” judgment.

Id., 284 Pa.Super. at 237, 425 A.2d at 791.

We affirm the action of the trial court in denying United’s motion to strike the default judgment entered against it on January 19, 1976 for the reasons set forth herein. We have reviewed the remaining statements of issues presented by United and find them to be without merit and to have been adequately and comprehensively discussed and ruled upon by the trial court in its opinion filed July 31, 1980.

II. Appeal of Westinghouse Electric Company

The defendant Westinghouse built and installed the elevator in this case while the apartment building was under construction in 1950. The plaintiff’s injury occurred in 1974 and suit was commenced in June, 1975. Under the provisions of the Act of December 22, 1965, P.L. 1183, 12 P.S. § 65.1 et seq., substantially reenacted as, 42 Pa.C.S. § 5536, the plaintiff’s and United’s cross-claim against Westinghouse is barred. Section 5536, 42 Pa.C.S. provides:

(a) General Rule.—Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(3) Injury to the person or for wrongful death arising out of any such deficiency.

It is Westinghouse’s position that the above mentioned statute is a statute of repose that abolished any cause of action against designers and contractors of real property improvements 12 years after the completion of the improvement, and as such, remains available to the defendant, Westinghouse, as a defense without the necessity of being pleaded in new matter.

The above statute does not change the statute of limitations for personal injuries in Pennsylvania and is not merely a bar to the plaintiff’s right to seek a remedy against the designer of the real property improvements Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971). Rather, the Act of 1965 completely abolished any cause of action that may have existed at common law against such designer, at a point 12 years after the completion of such improvement. Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978). In Freezer Storage, the supreme court considered the constitutionality of this statute and determined that the legislature had intended to reject a cause of action that had been permitted by the courts prior to the Act of 1965. In fact, the court determined that the legislature had a right in this particular case, to abolish the right of action which exists at common law without substituting some other means of redress. Further, the supreme court in Misitis discussed the effect of the Act of 1965, and stated:

The Act of 1965 did not change the two-year period. Instead the Act completely eliminates all causes of action arising out of the negligence in construction or design which occurred more than twelve years before the accident. After the effective date of the statute, in a case like this, even if a would-be plaintiff attempted to file a suit immediately after the accident while on his way to the hospital, his haste would be to no avail. He would have no cause of action. (Emphasis added).

Misitis v. Steel City Piping Co., supra, 441 Pa. at 343, 272 A.2d at 885.

Obviously, the supreme court has determined that no cause of action exists against the designer or contractor of real property improvements 12 years after completion of such improvement. The language of the supreme court then, in the above cases, clearly indicated that the Act of 1965, does not merely bar a litigant’s right to a remedy, as a statute of limitations does, but the Act completely abolishes and eliminates the cause of action itself. By eliminating a cause of action, the Act of 1965 is a statute of repose and as such it is properly raised in a Motion for Nonsuit, Directed Verdict, or Judgment N.O.V.

In First Pool Gas Coal Co. v. Wheeler Coal Co., et al, 301 Pa. 485, 152 A. 685 (1930), the supreme court explained the distinction between the statute of limitations in actions personal, and a statute of repose. The court there was referring to the Act of April 22, 1865, P.L. 533, 12 P.S. Section 838, a limitation respecting actions to enforce trusts as to realty. The court went on to explain that such limitation on actions does not have to pleaded and stated as follows:

. .. this Rule (Pleading a Statute of Limitations), however, refers to the statute of limitations of actions personal, and is inapplicable to the Act of 1865. In the former case the statute merely applies to the remedy, the claim remains and may be revised by a new promise; while in the latter there is no right of action unless served in accordance with the provisions of the statute .. . the Act of 1965 ... is a statute of repose which need not be specifically pleaded.

Id., 301 Pa. at 489, 152 A. at 687.

We find that because the Act of 1965 is a non-waivable statute, abolishing and destroying the cause of action against any person lawfully performing or furnishing the design, planning, supervision or observation of construction or construction of real property improvements, such defense is not waived by the failure to plead the statute as a statute of limitations defense pursuant to Pa.R.C.P. No. 1030.

The lower court’s opinion dismissing post-trial motions implicitly recognizes this:

In pursuing the issue at this point, Westinghouse maintains that the statute is not merely a bar to recovery but rather completely abolishes any cause of action against a designer of improvements to real property after the expiration of 12 years following completion of the improvement. The cases of Misitis v. Steel City Piping Co., 441 Pa. 339 [272 A.2d 883] (1971) and Freezer Storage Inc. v. Armstrong Cork, 476 Pa. 270, 382 A.2d 715 (1978) certainly support that conclusion. Those authorities also indicate that a statute of repose can be raised at any point, (citations omitted).

Lower court op. at 26.

The lower court ruled, however, that Westinghouse could not avail itself of the bar against liability provided by the statute by finding that the construction of the elevator system in this apartment building by Westinghouse was not the construction of an improvement to real estate. The court ruled that it was rather like supplying a ready-made item that was merely incorporated into the building. “Westinghouse simply supplied and installed the necessary elements for the elevator system as part of the overall construction of the complex.” Lower court op. at 27.

We do not agree with the lower court’s construction of the provisions of 42 Pa.C.S. § 5536 and accordingly we reverse as to appellant Westinghouse Electric Company. We hold that the construction of the elevator in question in 1950 was the “construction of any improvement to real property.”

The lower court seems to be likening the building of an elevator system with all its myriad components, motors, cables, wiring and machinery to uncrating and plugging in a television set. The fact that the basic design of the elevator may be identical in different buildings does not render the elevator system any less an improvement to real estate. The term improvement is defined in Black’s Law Dictionary:

A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intending to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally, buildings, but may also include any permanent structure ....

Black’s Law Dictionary 682 (5th ed. 1979).

Certainly, the elevator system in this case is as much an improvement to real property as was the insulation material in the ceiling of the warehouse in the Freezer Storage Inc. v. Armstrong Cork case cited above.

Judgment against United affirmed at No. 2087 Philadelphia 1980.

Appeal of United Elevator is quashed at No. 2088 Philadelphia 1980.

Judgment against Westinghouse reversed at No. 2212 Philadelphia 1980.

      . United filed a timely appeal from the judgment entered on the verdict at No. 4506 May Term 1975, Docket No. 2087 Philadelphia 1980, which appeal has raised the substantive issues that we have decided. In addition to that appeal, United also took an appeal to this court from the Order of the Honorable John J. McDevitt, III entered July 31, 1980 at No. 4506 May Term 1975, docketed in this court to No. 2088 Philadelphia, 1980. The Order of July 31, 1980 entered by the court denied motions by United to strike judgment, for a judgment n. o. v. or for a new trial. Such an order does not constitute an appealable order. Pa.R.A.P. 301(c). Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971). Accordingly, the appeal filed at No. 2988 Philadelphia 1980 is quashed.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    434 A.2d 1250
    MOBAY CHEMICAL CORPORATION v. AIR PRODUCTS AND CHEMICALS INC. v. CHICAGO BRIDGE & IRON COMPANY; Graver Tank & Manufacturing Company; Graver Tank & Manufacturing Company—Northeast Region; Union Tank Car Company; Trans-Union Corporation; General Tire & Rubber Company; American Chain & Cable Company, Inc. Appeal of IVS HYDRO, INC., (Formerly Industrial Valve Service).
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Sept. 4, 1981.

      John W. Jordan, IV, Pittsburgh, for appellant.
    Avrum Levicoff, Pittsburgh, for Mobay, appellee.
    John H. Bingler, Jr., Pittsburgh, for Chicago Bridge, ap-pellees.
    David H. Trushel, Pittsburgh, for American Chain, appel-lee.
    A. Bruce Bowden, Pittsburgh, for Vapor, participating party.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   HESTER, Judge:

Presently before the court is appellant IVS HYDRO, INC.’s appeal from an order of the lower court dated December 10, 1979, dismissing appellant’s preliminary objections in the nature of demurrer. Due to the fact that in personam jurisdiction is involved, said order, otherwise interlocutory and hence unappealable, is properly before this court pursuant to 42 Pa.C.S.A. §§ 702 and 742 and Pa.R.A.P. 311(b)(2).

We reverse.

The relevant facts may be briefly summarized as follows: Mobay Chemical Corporation (Mobay) brought an action in trespass in the Court of Common Pleas of Allegheny County, Pennsylvania, against Air Products & Chemicals, Inc. (Air Products) to recover for property damages, business interruption loss and consequential damages allegedly sustained by Mobay as a result of an explosion which occurred at Air Products Plant immediately adjacent to Mobay’s chemical plant in New Martinsville, West Virginia, on January 31, 1978. Air Products then joined a number of additional defendants by writ of summons including among others, appellant IVS Hydro, Inc., and Chicago Bridge & Iron Company (Chicago Bridge), the supplier of the nitrogen vessel which exploded. Chicago Bridge filed new matter alleging that appellant had been negligent in its repair and handling in February, 1975 of the pressure safety relief valve involved in the 1978 explosion. Thereafter, Air Products filed a complaint against appellant incorporating by reference thereto, the factual allegations asserted by Chicago Bridge in its new matter.

In response to the claim asserted against it in Chicago Bridge’s new matter, appellant filed preliminary objections in the nature of demurrer alleging that the Pennsylvania court lacked in personam jurisdiction over it and requested that the court dismiss the claim asserted against it by Chicago Bridge for lack of jurisdiction. Following argument, the lower court, by Judge J. Warren Watson, on December 10, 1979, entered an order, without opinion, dismissing appellant’s preliminary objections in the nature of demurrer.

We conclude that under the facts of this complex and multi-faceted litigation, the lower court erred in its order of December 10, 1979, dismissing appellant’s preliminary objections in the nature of demurrer. Under the facts at bar, the Pennsylvania court does not have in personam jurisdiction over appellant. Hence, we reverse.

Record facts relevant to our determination that the lower court erred when it concluded that it had in personam jurisdiction over the appellant include the following:

1. Appellant (formerly Industrial Valve Service) was incorporated in the State of West Virginia in 1972. From 1972 until 1976, it engaged exclusively in the business of repairing valves at its plant in Waverly, West Virginia.

2. Since 1977, appellant has engaged solely in the business of performing high-pressure water cleaning operations at chemical plants and power generating plants. At no time has it performed water cleaning operations at any locale in Pennsylvania.

3. Appellant has no employees or place of business in Pennsylvania. It has not offered its service in Pennsylvania and does not maintain any listing in any Pennsylvania telephone directories.

4. Appellant’s only direct contacts in Pennsylvania occurred between the years 1973 and 1976 when its predecessor corporation, Industrial Valve Service, shipped 27 valves which it had repaired at its plant in Waverly, West Virginia, to three Pennsylvania customers. It is important to note that the valve allegedly involved in this action was not one of the valves shipped into Pennsylvania by the appellant’s predecessor corporation between 1973 and 1976. The shipments to the three companies in Pennsylvania between 1973 and 1976 were to companies which are not involved in this action. The shipments into Pennsylvania between 1973 and 1976 involved billings of approximately $9,000 and accounted for 3.5% of Industrial Valve’s gross sales for that period.

5. Mobay is a New Jersey corporation qualified to do business in Pennsylvania with its headquarters in Allegheny County, Pennsylvania.

6. Air Products is a Delaware corporation qualified to do business in Pennsylvania with its principal place of business in Pennsylvania.

7. There existed an Agreement between Mobay and Air Products under which Air Products supplied oxygen and nitrogen to Mobay at its New Martinsville, West Virginia plant. Pursuant to that Agreement between Mobay and Air Products, it was agreed that any dispute would be governed by the laws of Pennsylvania.

8. Chicago Bridge is a foreign corporation with an office located in Philadelphia. The purchase order for the liquid nitrogen tank involved in the explosion was directed from Air Products’ Pennsylvania headquarters to Chicago Bridge’s Philadelphia office.

9. The valve in question was taken from Air Products’ plant in New Martinsville, West Virginia, to appellant’s plant in Waverly, West Virginia, where it was repaired. Following completion of the repairs, the valve was returned to the Air Products’ plant in New Martinsville, West Virginia. At no time during this repair process, was the valve in Pennsylvania.

Our initial inquiry must commence with a review of both Federal Constitutional Law and the applicable provisions of the Pennsylvania Judicial Code dealing with the appropriateness of in personam jurisdiction.

In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the United States Supreme Court established the parameters under which a state court may exercise personal jurisdiction over a non-resident defendant—so long as there exists “minimum contacts” between the forum state and the defendant. Further, the Court in International Shoe, at 318-19, 66 S.Ct. at 159, stated:

“... . there have been instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” (Emphasis added)

The “minimum contacts” standard has evolved as a polestar since that time.

In Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 at 447, 72 S.Ct. 413 at 419, 96 L.Ed. 485 (1952), the United States Supreme Court opined:

“It remains only to consider, in more detail, the issue of whether, as a matter of federal due process, the business done in Ohio by the respondent mining company was sufficiently substantial and of such a nature as to permit Ohio to entertain a cause of action against a foreign corporation, where the cause of action arose from activities entirely distinct from its activities in Ohio.” (Emphasis added.)

The Pennsylvania Judicial Code, Title 42 of the Pennsylvania Consolidated Statutes, Act of 1976, July 9, P.L. 586, No. 142, generally effective sixty days from the date of final enactment of Act of 1978, April 28, P.L. 202, No. 53 (June 27, 1978), provides in relevant part:

§ 5301. Persons
(a) General rule. The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(2) Corporations.
(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth. (Emphasis added)
(b) Scope of jurisdiction. When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section. Discontinuance of the acts enumerated in subsection (a)(2)(i) and (iii) and (a)(3)(i) and (iii) shall not affect jurisdiction with respect to any act, transaction or omission occurring during the period such status existed.

Had appellant carried on a continuous and systematic part of its business in Pennsylvania as required by the above subsection, so as to vest the Pennsylvania court with in personam jurisdiction?. We are of the opinion that it did not.

The record in this case is clear that from December, 1973 through June of 1976, appellant made 27 direct shipments of repaired valves (3.5% of its gross sales volume) to three customers in Pennsylvania. As noted above, appellant has been joined in this lawsuit on the theory that it is responsible for the January, 1978 West Virginia industrial plant explosion as a result of its alleged faulty repair of a pressure safety relief valve repaired at its Waverly, West Virginia plant in 1975.

The specific valve complained of has never been in Pennsylvania. It is immaterial that appellant no longer does business in Pennsylvania; what is relevant is whether its contacts in Pennsylvania at the time of the incident complained of constituted a continuous and systematic part of its business. For if they were, then the lower court was correct when it dismissed appellant’s preliminary objections based on lack of in personam jurisdiction. On the other hand, if it contacts in Pennsylvania at that time did not constitute a continuous and systematic part of its business, then the lower court should have granted appellant’s demurrer.

We conclude that the lower court erred when it dismissed appellant’s preliminary objections in the nature of demurrer. Appellant’s contacts in Pennsylvania during the applicable time-period (1973-1976), did not constitute a continuous and systematic part of its business. We therefore find that the Pennsylvania court lacks in personam jurisdiction over the appellant. Traditional notions of substantial justice and fundamental fairness, coupled with our review of the applicable case law, dictate that we so conclude. The cause of action against appellant should be tried in the State of West Virginia or in the appropriate Federal District Court under the diversity of citizen concept.

Order reversed.

      . The instant case is one of nine lawsuits which had been filed as a result of the industrial explosion which occurred on January 31, 1978. Two of the remaining eight cases are pending in the Court of Common Pleas of Allegheny County, two cases are pending in the United States District Court for the Southern District of Ohio in Columbus, Ohio, and the remaining four cases are pending in the Circuit Court of Marshall County, West Virginia. Appellant IVS has been named either as a defendant or an additional defendant in each of the remaining eight lawsuits.


author: BROSKY, Judge:

text:
    434 A.2d 1253
    Stanley J. SMIALEK, Administrator of the Estate of Jean Martha Smialek, Deceased, Appellant, v. CHRYSLER MOTORS CORPORATION, North Hills Passavant Hospital, a Corporation, and Donald Drewel. Stanley J. SMIALEK, Administrator of the Estate of Jean Martha Smialek, Deceased v. CHRYSLER MOTORS CORPORATION, North Hills Passavant Hospital, a Corporation, and Donald Drewel. Appeal of NORTH HILLS PASSAVANT HOSPITAL.
    Superior Court of Pennsylvania.
    Argued April 30, 1981.
    Filed Sept. 4, 1981.
    Petition for Allowance of Appeal Denied Jan. 15, 1982.

      William S. Schweers, Jr., Pittsburgh, for Stanley J. Smia-lek.
    Thomas J. Reinstadtler, Pittsburgh, for Chrysler, appellee.
    Donald W. Bebenek, Pittsburgh, for North Hills Passavant Hospital.
    S. Asher Winicoff, Pittsburgh, for Drewel, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Appellant, Smialek, commenced this action against Chrysler Motors Corporation, North Hills Passavant Hospital (hereinafter Passavant) and Donald Drewel to recover damages for personal injuries suffered by his now deceased wife as a result of an automobile accident and treatment following it. A verdict was rendered in favor of Mr. Smialek and against Passavant and Donald Drewel. The jury found no liability on the part of Chrysler. Post-trial motions for new trial and judgment notwithstanding the verdict filed by Mr. Smialek and Passavant were denied and these appeals, now consolidated followed. The central issue raised in Mr. Smia-lek’s appeal is whether the lower court erred in its instruction to the jury concerning the potential strict liability of Chrysler. Finding that the instruction did erroneously suggest to the jury that a negligence standard was to be employed in this case, we reverse the order of the lower court.

Passavant raises the issue of whether the lower court erred in instructing the jury that it could assess a portion of the damages it awarded against Passavant, if the hospital were found negligent. Passavant also argues that even if an apportionment of the damages were appropriate, the facts do not support the jury’s verdict. We find no merit to Passavant’s claims and affirm the lower court’s denial of its motion.

The facts surrounding the accident are as follows.

Appellee, Drewel, was the driver of an automobile which struck the Chrysler Cricket driven by Mrs. Smialek while that car was stopped at an intersection waiting to make a left turn. Upon impact, the tank of the Cricket was punctured, gas spilled on the highway and the Cricket caught on fire. Prior to being rescued from the automobile, Mrs. Smialek had inhaled smoke and had been exposed to heat from the flames. She was taken to Passavant Hospital where she was put on a respirator because she was having difficulty breathing. Mrs. Smialek was given Pavulon, a muscle paralyzing drug, so that she would be unable to remove the respirator tube. The respirator then became her sole mechanism for breathing. Mrs. Smialek was found at the front of her hospital bed with the tube detached. Efforts to resuscitate her failed and she was pronounced dead.

Mr. Smialek proceeded against Chrysler on a strict liability theory alleging that the design of the Cricket was defective and that the defect was a proximate cause of the injuries suffered by the decedent.

As the Pennsylvania Supreme Court explained in Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975).

Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiffs injuries. Id., 462 Pa. at 93, 94, 337 A.2d at 898 (footnote deleted).

In Berkebile, the Supreme Court discussed the seminal case of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), in which the court held that the seller of a product would be responsible for injury caused by his defective product even if he had exercised all possible care in its design, manufacture and distribution. In Berkebile, supra, the court held that “the ‘reasonable man’ standard in any form has no place in a strict liability case.” Id., 462 Pa. at 96, 337 A.2d at 900 (emphasis added).

In analyzing the correctness of the charge on proximate cause given in that case, the court found error in the lower court’s instruction that “such a consequence, under all the surrounding circumstances of the case must have been foreseeable by the seller.” The charge was improper because, as the court explained, “To require foreseeability is to require the manufacturer to use due care in preparing his product. In strict liability, the manufacturer is liable even if he has exercised all due care.” Berkebile, supra, 462 Pa. at 97, 337 A.2d at 900.

In Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court explained the basis for the imposition of strict liability in products liability cases when it wrote:

The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. . . . Courts have increasingly adopted the position that the risk of loss must be placed on the supplier of the defect without regard to fault or privity of contract.

Id., 480 Pa. at 553, 391 A.2d at 1023, 1024 (footnote deleted).

In Azzarello, supra, the court explained that the question of whether a product is defective reaches the jury only after the court has weighed the relative risks and utility of the product and determined that, under plaintiff’s averment of the facts, recovery would be justified. Id., 480 Pa. at 558, 391 A.2d at 1026.

In the Azzarello, supra, opinion the court discussed what it considered to be an adequate instruction. The court explained:

We believe than an adequate charge to the jury, one which expresses clearly and concisely the concept of “defect,” while avoiding interjection of the “reasonable man” negligence terminology, is the jury instruction directed to the definition of a “defect,” which was fashioned in large part by the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instruction, Civil Instruction Subcommittee:
“The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant’s control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for [its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect.”
Pennsylvania Standard Jury Instruction 8.02 (Civil), Subcommittee Draft (June 6, 1976).

Id., 480 Pa. at 559, 560, 391 A.2d at 1027.

In the beginning of his charge in the present case, the judge instructed the jury in accordance with the proposed instruction. However, he continued, telling the jury,

Now, Chrysler Motors Corporation does not have a duty to design an accident proof automobile. Chrysler is, however, required to take reasonable steps, within the limits of technology, to design and produce an automobile that will minimize the unavoidable damages, or rather, dangers of an automobile accident.

Later, he told the jury,

There are some things you should consider in determining, in fact, whether the location of the tank was a design defect, and they are these following factors: First, you should consider the likelihood whether there is a likelihood or isn’t, that the product, as designed, would result in injury to a user. In this case you should consider the likelihood or the lack of a likelihood that the Cricket, as it was designed, would, in an accident situation like this one, cause or fail to protect an occupant from injury.. .
And if you find that an accident of this kind was likely or not likely to occur, then that would be a factor to consider in the balancing formula on danger. If you so find, you should also consider the likelihood that an automobile designed in this manner in which the Cricket model was designed, and circumstances such as you find occurred, experienced a fire resulting from the ignition of the fuel system. And if you find such a likelihood of injury, then you should consider this factor in deciding whether the automobile was dangerous. Another factor that you should consider is the seriousness of the potential injury in such circumstances. In other words, what can a fire produce in terms of occupants of a car .... applied to this case, the question would be did the design of the Cricket lack something necessary for adequate performance of its function, namely to provide a safe compartment for the transportation of occupants of the motor vehicle. That it would be designed not to be crash proof or to be absolutely safe against all risks on the road, but to provide reasonable safety against foreseeable risks of the road.

As was explained in Berkebile, “Foreseeability is not a test of proximate cause; it is a test of negligence.” Id., 462 Pa. at 97, 337 at 900.

The court also told the jury “Another thing you should consider is the ability of the manufacturer to eliminate an unsafe characteristic that you find in the car without impairing the usefulness, or significantly increasing its cost.”

In Azzarello, supra, the court cited with approval the following sentences.

The Restatement of Torts has analyzed negligence, described it as a balancing of the magnitude of the risk against the utility of the risk, and listed the factors which go into determining the weight of both of these elements. This analysis is most helpful and can be used with profit by trial and appellate judges, and by students and commentators. But it is not ordinarily given to the jury.

Azzarello, supra, 480 Pa. at 557, 391 A.2d at 1026. The quoted portion of the charge, in the present appeal, then, employs a negligence standard in a strict liability case and additionally, gives to the jury an issue that is to be examined by the court.

The lower court erred in its use of negligence terms in the charge. In MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676 (1969), this court distinguished the evidentiary standards employed in negligence actions from those used in product liability cases, saying that the latter are the same standards used in warranty cases. Having explained that a reasonable care standard is used in negligence actions, the court explained that,

In contrast, the concern of both § 402A and warranty law is with the fitness of a product, not the conduct of the producer as measured by due care. While proof of a mechanical malfunction does not support an inference of the absence of due care in the construction or design of equipment, it is circumstantial evidence of the unfitness of the equipment. Accordingly, we hold that the occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a “defective condition” within the meaning of § 402A, as it is evidence of lack of fitness for warranty liability.

Id., 214 Pa.Super. at 391, 257 A.2d at 680, see Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).

Of course, the lower court could and should have instructed the jury that a malfunction is evidence of a defect if the automobile was used normally. That is, they might find no defect if they find that being struck is abnormal use. Evidence which would be admissible in a negligence case to prove “abnormal use” is admissible in a strict liability case only for the purpose of rebutting the plaintiff’s contentions of defect and proximate cause.” Berkebile, supra, 462 Pa. at 99, 337 A.2d at 901.

The correct charge, then, would have instructed the jury that if they found that the automobile was being used in an abnormal manner, its malfunction would not necessarily have indicated that it was defective.

The instruction given, on the other hand, employed a due care standard that is not to be applied in strict liability cases.

Appellant-Passavant argues that the testimony of the expert witness called by Mr. Smialek was insufficient to allow the jury’s consideration of it. We do not agree.

As our court explained in Kravinsky v. Glover, 263 Pa.Super. 8, 21, 22, 396 A.2d 1349, 1356 (1979),

Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. (Emphasis in original) (footnote deleted).

And,

. .. the expert need not express his opinion in precisely the same language we use to enunciate the legal standard.

Id., 263 Pa.Super. at 22, 396 A.2d at 1356.

In the present case, the expert testified in part as follows:

My opinion is that the medical care provided by the hospital and its personnel, particularly on the night of the 8th and the early morning of January 9th, did not conform to the conventional and prevailing medical standards....
If Mrs. Smialek had gotten the benefit of this kind of care [care which conformed to prevailing standards] the extubation would not have occurred.

In answer to the question “. . . Doctor, in your opinion was the hospital’s failure to provide such care a substantial contributing cause in bringing about her death?” He replied, “Yes, sir, it was the direct cause.”

The testimony met the standards established in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) and Kravinsky, supra.

Appellant, Passavant Hospital, contends that the lower court erred in instructing the jury that damages could be apportioned between it and the other defendants. In support of its contention the hospital cites the Restatement of Torts 2d § 457 which states,

If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires.”

and, (d) Comment (c) to the sections states in part:

He [the original tortfeasor] is, therefore, as fully responsible for the negligent manner in which the nurses or clerical staff perform their part as he is for the negligent manner in which a physician or surgeon treats the case or diagnosis the injuries or performs an operation.” Moreover, comment (d) adds:
He is not answerable for harm caused by misconduct which is extraordinary and, therefore, outside of such risks.

In Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979), the plaintiff had been involved in an auto accident as a result of which he sustained injuries that were treated with the performance of an operation of his femur. The plaintiff brought suit against the driver which was concluded when he signed a release as to the driver only. Subsequently, he sued the physician who performed the surgery, the hospital and the manufacturer and distributor of surgical products involved. On appeal from a grant of summary judgment for the driver, this court discussed the apportionment of damages and wrote,

As we have held in Embry v. Borough of West Mifflin, et al., 257 Pa.Super. 168, 390 A.2d 765 (1978), to the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly, (footnote deleted)

Id., 263 Pa.Super. at 179-180, 397 A.2d at 805, 806.

The court continued noting
Although the posture of Pennsylvania law in accordance with § 457, supra, would seem to be at odds with the principle of the separateness of liability between the tort-feasor and the doctor in this case, there is no inconsistency present. This is so because the injured plaintiff could have brought suit against Dormer, the driver, in the prior action for the full extent of his injuries, that is, the pain and suffering and expenses of the fractured femur as well as the aggravation of the injury. Instead, plaintiff sued Dormer for the injuries he caused, after which Dormer alone was released. Subsequently, plaintiff sued the doctor, hospital and manufacturer of the surgical supplies for their alleged negligent acts and breach of contract only from the time their respective conduct began; he does not claim damages for any injury Dormer may have caused him since he already recovered those damages in the prior action.

Id., 263 Pa.Super. at 180, 397 A.2d at 806.

Similarly, Mr. Smialek recovered from Mr. Drewel, the driver, damages for those injuries caused by his negligence, and separate damages from Passavant for the pain and suffering its negligence caused.

In Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 380 A.2d 765 (1978), this court was faced with a factual situation not unlike the one before us.

Plaintiff’s decedent was injured in an automobile accident and died in the hospital while being treated for the injuries he received. Plaintiff brought suit against the borough in which the accident occurred alleging that a traffic signal had malfunctioned causing the accident. She also sued the doctor who treated decedent and the hospital. The jury was instructed that it could apportion damages among the defendants and it then found the medical defendants solely responsible for the death.

On appeal, the hospital argued that the other defendants were also jointly responsible for the death because they started the chain of events that led to it.

The court discussed this claim and wrote:

[Appellant] cites in support of that legal position Thompson v. Fox, supra, 326 Pa. 209, 192 A.2d 107. In Thompson the plaintiff was injured by an automobile driven by one Taylor and required medical treatment as a consequence. Plaintiff brought an action against Taylor for negligence and set forth all of his injuries, including those resulting from the medical care. The plaintiff later settled with Taylor and signed a formal release. Subsequently, he sued the attending doctor, alleging careless and improper treatment. The Supreme Court affirmed binding instruction for the defending doctor on the ground that the plaintiff had already been paid for his injuries in his settlement with Taylor. The court held that the liability of the original wrongdoer extended to the additional harm caused by negligent medical treatment necessitated by the original accident. The decision in Thompson is simply an application of Section 457 of the Restatement of Torts, Second. It is a holding that a plaintiff cannot recover twice for the same injury. Apportionment between the party who caused the accident and the doctor, both responsible, was not an issue and not discussed.

Id., 257 Pa.Super. at 180, 380 A.2d at 771, 772.

The court then upheld the apportionment. We do likewise. See also Restatement of Torts 2d §§ 434, 433.

The apportionment is not unfair. As Restatement § 433 states, the apportionment is a jury question. In Embrey no error was found in an apportionment that placed full responsibility on only the medical defendants. In that case, as in the present one, the jury was free to believe the medical expert who expressed the opinion that the decedent probably would have survived the accident absent the negligence of medical personnel and, therefore, to impose the greatest liability on them.

We will discuss appellant’s remaining contentions only briefly.

Passavant argues that the question of whether adequate dosages of Pavulon were administered to the decedent should not have been submitted to the jury. In support of its argument, it cites the testimony of the doctor who treated the victim. The doctor was asked about the orders he had left pertaining to the drug and he explained that “. . . [T]he drug was given, and then a required dose is generally required at intervals, and this has to be left to the discretion of the individual, i.e., the nurse at the time.”

Appellant’s witness, then agreed with Mr. Smialek’s allegation that the hospital determined the amount of Pavulon that was given to the patient. Of course, the jury could conclude that the doctor believed a reasonable amount of the drug had been prescribed and further that the hospital had not been negligent. However, while it may be relevant to the issue of whether the hospital was negligent, his approval of its actions in no way alters the essential point that the dosage was in the control of the hospital. The question of whether the drug was administered negligently was properly before the jury.

Finally, we find no merit to Passavant’s claim that it was prejudiced by the appearance in a local newspaper of an article concerning the imposition of liability upon it in another case. There is no evidence that any juror saw the article which made no mention to the present action. The jury was instructed not to read newspapers or watch or listen to news broadcasts before they were sequestered for deliberations, which was the next day. No prejudice was shown by appellant.

The judgment of the lower court is affirmed in its denial of motions for judgment notwithstanding the verdict and new trial filed by appellant-Passavant. The judgment is reversed in its denial of the motion for new trial filed by appellant-Smialek and the case is remanded for new trial at which the jury is to be charged in accordance with this opinion. That is, it is to be instructed on strict liability principles, not negligence and risk-utility concepts.

CERCONE, President Judge, concurs in the result.


author:
JOHNSON, Judge:
      BROSKY, Judge,

text:
    434 A.2d 1260
    COMMONWEALTH of Pennsylvania, v. Frank DELPIANO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Sept. 4, 1981.

      John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

After a nonjury trial, Appellant was found guilty of Receiving Stolen Property. Appellant’s post-verdict motions were denied, and Appellant was sentenced to three years probation. This is an appeal from the judgment of sentence. For the following reasons, we reverse and discharge Appellant.

The complaint was filed against Appellant on December 12, 1978; and the run date was June 11, 1979. On May 10, 1979, Appellant filed a motion to suppress; and the court continued the case until June 21,1979. On June 6,1979, the Commonwealth filed the first petition for an extension under Rule 1100(c). The petition was granted on June 7, 1979; and the trial was scheduled for June 25, 1979. On June 21,1979, the Commonwealth filed a second Rule 1100(c) petition, alleging, “Detective ill.” The judge was also ill on June 21. On July 19, 1979, the court granted the Commonwealth’s second petition and extended the trial date to August 17, 1979.

The Commonwealth filed a third Rule 1100(c) petition on August 17, 1979. This petition averred, “Aug. 15, 1979—ar-resting officer on vacation.” The court granted the aforesaid petition on September 26, 1979, and extended the trial date to October 3, 1979. On this date, the Commonwealth filed a fourth petition for extension under Rule 1100(c). This petition averred, “Court closed due to Papal Visit.” The judge granted this petition on October 19, 1979, and extended the trial date to October 23, 1979. On this date, Appellant’s trial was finally commenced; and Appellant was found guilty of Receiving Stolen Property. The property consisted of three rifles. On January 7, 1980, the Court denied Appellant’s post-trial motions and sentenced Appellant to three years probation.

Appellant contends that the Court erred in granting the Commonwealth’s second, third, and fourth petitions for an extension under Rule 1100(c). Appellant does not contest the first extension since the Court had Appellant’s motion to suppress under advisement at the expiration of the original run date.

The Commonwealth’s second Petition for Extension under Rule 1100(c) is a one-page form petition with boilerplate which avers that, despite the Commonwealth’s exercise of due diligence, the case could not be tried before the run date. The only exercise of due diligence listed by the Commonwealth was: “June 21, 1979—Detective ill.” The hearing on this petition was held on July 19,1979. Despite a request by defense counsel that the Commonwealth present testimony concerning whether or not the case could have been listed for trial before the run date, the judge granted the petition without any testimony from the Commonwealth.

Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), established the requirements, with which the prosecution must comply, before the trial court may grant a Rule 1100(c) extension:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.
[Emphasis added.]

Id., 469 Pa. at 222, 364 A.2d at 1349-50. In the instant case, the Commonwealth did not present any evidence either to support its claim of having exercised due diligence or to establish that the trial was scheduled for the earliest possible date. Since the Commonwealth failed to meet its burden of proof, the second Rule 1100(c) petition should not have been granted.

Even assuming that the lower court did not err in granting the second Rule 1100(c) petition, our consideration of the record reveals that the court erred in granting the third petition.

The Commonwealth’s third petition is also a one-page form petition with boilerplate allegations that, despite the Commonwealth’s exercise of due diligence, the case could not be tried before the run date. As stated above, the reason why Appellant could not be tried was that the arresting officer was on vacation. At the Rule 1100(c) hearing on September 26, 1979, the Commonwealth did not present any testimony to support its petition for an extension.

Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), presented a situation analogous to the facts of the instant case. In Ehredt, the district attorney argued that “good cause” existed for an extension because several Commonwealth witnesses would not be available. The Ehredt Court held that “a bare statement by the Commonwealth’s attorney that several witnesses are ‘unavailable’ without more, does not establish ‘due diligence’ within that standard” (i. e. proof of due diligence by a preponderance of the evidence). Id., 485 Pa. at 195, 401 A.2d at 361. The Supreme Court proceeded to quote Commonwealth v. Antonuc-cio, 257 Pa.Super. 535, 537, 390 A.2d 1366, 1367 (1978), for the principle that “ ‘[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).’ ” 485 Pa. at 195-196, 401 A.2d at 361.

In the instant case, the Commonwealth’s petition merely asserts that it exercised due diligence and that the arresting officer was on vacation. Under Ehredt and Antonuccio, such assertions and unproven facts do not establish cause for a Rule 1100(c) extension.

Under Mayfield, the Commonwealth was required to present evidence on the record to establish both the exercise of due diligence and that the delay could not have been avoided. The Commonwealth failed to provide any testimony at the hearing on September 26, 1979.

At this hearing, counsel for Appellant expressed his belief that the Commonwealth, at the beginning of the summer, had a list of the police officers’ vacation schedules. Accordingly, Appellant’s counsel requested evidence from the Commonwealth concerning why the Appellant’s trial had been listed for a date when the arresting officer was on vacation. The aforesaid request for the Commonwealth to produce evidence was ignored by both the Commonwealth and the trial judge. Under Mayfield, Antonuccio, and Ehredt, the Commonwealth in the instant case has failed to meet the burden of proving either its exercise of due diligence or that the case could not have been scheduled for an earlier date. Because the Commonwealth failed to meet its burden of proof, the trial court erred in granting the Rule 1100(c) extension. Commonwealth v. Levitt, 287 Pa.Super. 115, 429 A.2d 1126 (1981); Commonwealth v. Thompson, 285 Pa.Super. 155, 426 A.2d 1188 (1981); Commonwealth v. McNeill, 274 Pa.Super. 257, 418 A.2d 394 (1980).

For the foregoing reasons, the judgment of sentence is reversed, and Appellant is ordered discharged.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the majority and concur in the result reached by the majority, but believe that we should respond to the Commonwealth’s contention that the record amply supports the Rule 1100 motions court judge’s decision to grant the Commonwealth’s June 21, 1979 petition for an extension. Rule 1100(c).

In Commonwealth v. Postell, 280 Pa.Super. 550, 552, 421 A.2d 1069, 1070 (1980), we said:

Contrary to appellant’s contention that the lower court erred in relying upon such court records, this court has impliedly permitted such use. Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977).

In the instant case, the Rule 1100 motions court judge decided that due diligence had been undertaken by the Commonwealth when he noted that the record indicated that both the trial judge and the detective were ill. The Commonwealth’s second extension petition contended only that an extension was necessary because the Commonwealth’s witness, the detective, was ill. Clearly, the Commonwealth did not prove that it had acted with due diligence. Their petition and the record states no more than a bald assertion that the detective was ill. This assertion is clearly insufficient. To hold otherwise would lessen the Commonwealth’s burden to an insignificant level similar to that found in form petitions. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979).

Thus, the analysis we presented in Commonwealth v. Postell, supra, is not applicable herein. I would not hold that the Commonwealth has proven due diligence, based upon facts contained in the record, which were noted by the trial court, except under the very limited circumstance where the delay was clearly and exclusively caused by the administration of the judicial system and the Commonwealth’s petition claims that the extension is required because of those judicial delays.

I agree with the members of majority where they opine that the trial court improperly granted the Commonwealth’s June 21,1979 petition for an extension. Therefore, Delpiano was brought to trial in violation of Rule 1100 and accordingly must be discharged.

      . 18 Pa.C.S.A. § 3925.

      . Pa.R.Crim.P., 1100(c), 42 Pa.C.S.A., states:
      At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . The entire hearing on July 19, 1979, consisted of the following dialogue between the court and defense counsel:
      THE COURT: On 6-7 we extended to 6-25. 6-21 the entry is Judge and Detective ill.
      That’s obviously Court delay. If not, it’s a legitimate reason, the detective was ill.
      MR. GORDON [Defense Counsel]: I would just ask if the Court would accept testimony from the Commonwealth that they could have listed the case again before the run date.
      I am also handing up a written petition and incorporating the arguments therein.
      THE COURT: Who is going to give me the testimony?
      MR. GORDON: The District Attorney in Court that day may have some information as to the illness. Maybe it could have been listed before the run date. I think the Record would be incomplete without that.
      THE COURT: We’re talking about two different things. Sure, I’m not going to sit here and say that the Judge and detective were ill from 6-21 to 8-15.
      My understanding is we can bring it in in every case, if we want to stay here, that the Criers in the courtrooms are given the first available date and that’s the date they give for the continuances. We had the Trial Commissioners testify a hundred times.
      If you think the law is that you have to have that case listed as soon as that illness is over, you’re protected on the Record. But I take the position that on 6-21 that was the first available date.

        I’ll analogize it to a baseball game. You get up, take your three swings. You don’t get up again until eight other guys bat, and that’s the way it is in Philadelphia.
      I’ll extend to 8-17.

      . The hearing on September 26, 1979, consisted of the following dialogue between the court and defense counsel:
      COURT CRIER: Number 67, Frank DelPiano [sic].
      THE COURT: Is this Rule 1100, also?
      MR. BRY [Defense Counsel]: My indication is that on July 14, 1979, the Rule was extended to August 17, 1979. On August 15, 1979, there was a Commonwealth request for a continuance.
      I, therefore, believe it is now incumbent upon the Commonwealth and their burden to present evidence as to why they requested a continuance.
      THE COURT: Police Officer on vacation.

        MR. BRY: I believe that the Commonwealth has a list at the beginning of the summer schedule of all the police officers. I think they need to present evidence in this case as to why the case was listed.
      THE COURT: Police officer on vacation.
      COURT CRIER: Yes, Sir.
      THE COURT: That should suffice.
      MR. BRY: Judge, I believe—
      THE COURT: Is this for the record?
      MR. BRY: Yes. I believe the District Attorney has notice at the beginning of the summer, the schedule of all the police officers. And if they list the case on a date when they have prior knowledge that the officer is going to be on vacation, when the case is going to run two days after that, I don’t believe that that is due diligence.
      If Your Honor is indicating there is a possibility in this case the schedule was some how changed, I hear no testimony or evidence to that effect. And I believe the District Attorney has a burden of coming forward and showing when they knew the officer was on vacation, why he failed to appear, and what efforts were made to relist the case before the rúndate, or—
      THE COURT: Commonwealth vs. DelPiano [sic], on 6/7/79 Judge Blake extended to 6/25, 6/21 to 8/15 the Judge was ill and a detective was ill, no excludable days. 8/15 to 10/3, police officer on vacation, no excludable days. Petition timely filed 6/22/79.
      COURT CRIER: Trial date 10/3.
      THE COURT: New date, 10/5.
      MR. BRY: Could we have a must be tried?
      THE COURT: All right.
      Obviously, both this and the hearing on July 19, 1979, fail to meet any of the Mayfield requirements discussed above.


author: VAN der VOORT, Judge:

text:
    434 A.2d 1264
    COMMONWEALTH of Pennsylvania, v. Patrick D. LeCUYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 11, 1980.
    Filed Sept. 4, 1981.

      William J. Wiker, Greensburg, for appellant.
    Timothy J. Geary, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

A jury convicted appellant of Burglary, Theft and Receiving Stolen Property. After refusal of post-trial motions, he was sentenced on April 15, 1980 to four to ten years imprisonment on the burglary charge only, and on the charge of receiving stolen property was placed on probation for five years. He has appealed from both sentences.

His first contention is that his trial was prejudiced because on the first morning, after the jury was impaneled, and during a recess, one of the jurors walked past a small room in the courthouse, commonly called the “Bull Pen”, and saw the appellant within the room. Apparently the appellant and other prisoners had been brought to the room preliminary to appearing in court, and the door had been open momentarily to let people through. None were handcuffed; all were in ordinary attire except one who was in prison garb. Three officers, in plain clothes, were in the room. A window at the rear was barred but the bars were hidden from sight by curtains.

Appellant cites Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974) in support of his argument, but that case, as do other precedents, supports the contrary rule of thumb that accidental sightings of a defendant, apparently in custody, do not require the declaration of a mistrial. 456 Pa. at 161, 318 A.2d 680. See also Commonwealth v. Evans, 465 Pa. 12, 15, 348 A.2d 92 (1975); Commonwealth v. Miller, 247 Pa.Super. 132, 138, 371 A.2d 1362 (1977) and Commonwealth v. McGonigle, 228 Pa.Super. 345, 352, 323 A.2d 733 (1974), in all of which cases the circumstances of the sightings made the possibility of prejudice more likely than in the present case.

Appellant’s second contention is that he was improperly prejudiced by the admission into evidence that he had committed another crime shortly before the crimes for which he was currently being charged.

In the present case, appellant was accused of burglary of and theft from Watson’s Chevrolet-Oldsmobile in Export, Westmoreland County, on January 30 or January 31, 1976. Several days after the burglary, an abandoned Chevrolet pick-up truck was observed on a parking lot adjacent to Watson’s Chevrolet-Oldsmobile. Appellant was charged in Allegheny County with the theft of that Chevrolet pick-up truck. In the present trial, over objection, the court permitted a police officer to testify that, at a court hearing in Pittsburgh, he heard the appellant plead guilty to the theft of the Chevrolet pick-up truck.

Appellant makes two complaints with respect to the admission of that testimony:

(a) that it was not the “best evidence”; and
(b) that the testimony was inadmissible because not sufficiently related to the Westmoreland County offenses and highly prejudicial to him.

We believe that there was no error in the admission of this testimony. Appellant’s declaration in the Allegheny County court proceeding was an admission against his interest and admissible as an exception to the hearsay rule. The testimony also was relevant to the Westmoreland County offenses, as it tended reasonably to identify the appellant as the perpetrator of those offenses. See dicta in Commonwealth v. Hude, 256 Pa.Super. 439, 442, 390 A.2d 183 (1978), and Commonwealth v. Burger, 195 Pa.Super. 175, 171 A.2d 599 (1961).

Appellant’s third contention is that he may not be found guilty of both burglary and of the offense which it was his intention to commit after the burglarious entry. On this issue, both parties cite Commonwealth v. Hardrick, 268 Pa.Super. 103, 407 A.2d 458 (1979).

In this case we have the following situation:

At Information No. 610 April Term, 1976 (hereinafter 610), appellant is charged with (1) burglarizing Watson’s Chevrolet-Oldsmobile Building, (2) with the theft while therein of three sets of automobile keys, and (3) with the theft of a 1976 Oldsmobile. Appellant is further charged at Information No. 611 April Term 1976 (hereinafter 611) with theft by receiving stolen movable property, to-wit, a 1976 Oldsmobile.

The jury found appellant guilty on all counts in the two Informations. The sentencing judge sentenced appellant to four to ten years on the burglary count at 610, and five years probation for receiving stolen movable property, to-wit, a 1976 Oldsmobile, at 611. These sentences were proper. The burglary consisted of entering the building with intent to steal the car keys. The jury may, as it did in this case, find the actor guilty of burglary on the basis of entry into the building and stealing the car keys. Appellant was found in possession of the 1976 Oldsmobile, and the car keys were found in his pockets. This evidence adequately supported the charge at 611. The sentencing judge ignored the charge at 610 of theft of the 1976 Oldsmobile, which automobile was outside the building and constituted no element of the burglary charge.

The verdict of guilty of theft of car keys was proper; however, that theft of the car keys for sentencing purposes merges with the burglary charge. Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979). The sentence of five years probation upon the receiving charge at 611 was properly imposed.

We affirm the sentences imposed by the sentencing judge, except that we vacate the verdict of guilty at 610 of theft by the unlawful taking of the 1976 automobile.


author: PER CURIAM: MONTEMURO, Judge,

text:
    434 A.2d 1267
    Steven GADBOIS and Judith A. Gadbois, Appellants, v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP. Stephen GADBOIS and Judith A. Gadbois v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP, Appellant. Larry P. FOX and Glenda M. Kreiser, Appellants, v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP. Larry P. FOX and Glenda M. Kreiser v. LEB-CO BUILDERS, INC. v. BETHEL TOWNSHIP, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed Sept. 4, 1981.

      George E. Christianson, Lebanon, for appellants (at Nos. 2687 & 2688) and for appellees (at Nos. 2818 & 2819).
    Frederick S. Wolf, Lebanon, for Leb-Co, Appellee.
    Thomas S. Long, Lebanon, for appellant (at Nos. 2818 & 2819) and for appellee (at Nos. 2687 & 2688).
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

Following a nonjury trial in these consolidated actions in trespass and assumpsit, the lower court rendered a decision awarding plaintiffs Steven and Judith A. Gadbois and Larry P. Fox and Glenda M. Kreiser substantial damages for loss of value to their respective properties. Defendant Leb-Co Builders, Inc. and additional defendant Bethel Township subsequently filed exceptions challenging various aspects of the court’s decision. The court sustained the exceptions to the method of calculating plaintiffs’ property damage, reducing the damages sharply, and denied the remaining exceptions in the order from which the present appeals are taken. We are unable to reach the merits, however, because the order disposing of the exceptions has not been reduced to judgment and docketed. It is settled that an order disposing of exceptions following a nonjury trial is interlocutory and nonappealable. Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981). See also Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 187, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). “Such an order does not become appealable until, ‘on praecipe of any party,’ Pa.R.A.P. 301(d), it is ‘reduced to judgment and docketed,’ Pa.R.A.P. 301(c). And see Pa.R.C.P. 1038(e). The requirement that judgment be docketed is jurisdictional.” Unterberger v. Life Assurance Co. of Pennsylvania, supra 286 Pa.Super. at 470, 429 A.2d at 35. Because this requirement has not been met in the present case, the appeals are premature and must be quashed.

Appeals quashed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

The instant action was the consolidation of two cases brought by home owners of adjacent properties against the builder-vendor of their homes. The Township was joined by the builder-vendor as additional defendant because of its considerable involvement in the issuance of permits for, and inspection of, the septic systems that utterly failed.

The matter has been to trial and re-heard on Exceptions by the Lower Court; briefs and reproduced record were submitted to this court and the matter has been argued.

Review of the record shows desperate efforts by the appellants, who have lived with an horrendous situation for three years at date of the writing of this dissent. In fact, an entire neighborhood of some thirty homes has been subjected to the problems presented by six open pits, two of which measure 10' x 20' x 10', and all of which are filled with human excrement and clusters of maggots floating on raw sewage water.

To quash the appeal to this court at this time on the technical objection that the appellants’ attorney did not file the one last paper necessary to reduce the order of the lower court to judgment is to condemn the appellant/homeowners and their neighbors to endure intolerable conditions for an indeterminate length of time.

This court has only recently made an administrative decision to deny relief routinely in these instances where the lower court’s order has not been reduced to judgment on praecipe of a party.

Certainly, the argument can be made that the rule is jurisdictional, that it is not complicated, and that when it is not adhered to an automatic quash is not an unfair result. Counter-argument, however, must note that in a case such as this, the nominal “losers” in the court below are not going to reduce even an inadequate holding against them to judgment; naturally, they would prefer to pay nothing. The putative “Winners”—faced with an order they consider to be totally inadequate—have no natural inclination to reduce the order to judgment either. Instead, they appeal as swiftly as possible.

Until recently, the policy of this court has comported with an understanding of human nature, and the rule has been honored in the breach where advisable. Frankly, adhering to the policy rigidly is reminiscent of the practices of early English common law when any misstep whatsoever in pleadings would debar a meritorious claim. Surely our modern system of law should promote a more flexible approach to justice.

There is merit in having a date certain from which the time for appeal must run. Uncertainty as to whether date of the order or date of the praecipe prevailed could create difficulties. For this reason, the undersigned would favor a solution for the instant matter as follows, without prejudice to a more far-reaching method of dealing with the problem in the future.

A court order would be issued remanding the case to the lower court for the sole purpose of permitting counsel for appellants, by immediate direction of the court below, to file a praecipe nunc pro tunc for an appropriate date prior to appeal date on the docket below. The records would remain with Superior Court, and upon notice that judgment was entered, an opinion of this court on the merits of the case would issue.

The thing that is apparent at present, however, is that under the existing system everybody loses. In this case an entire neighborhood suffers, but in all cases the parties lose time and money, the cost of reparations inflates, and the court duplicates its own expenditures in time, money and effort.

The problem will persist because appeal from an unacceptable order of judgment is an almost Pavlovian response, while reducing an unacceptable order to final judgment is a highly artificial act, made only grudgingly at best by counsel. Sadly, too many litigants suffer for their attorneys’ “learning experience”, and the court system suffers, too, from duplication of efforts.

I must dissent from the majority’s opinion. I would not quash this appeal.

      . Possibly when the record reveals on its face that the order of the lower court has not been reduced to judgment and docketed, the prothonotary of the Superior Court could exit the problem to a Judge of the court immediately. The matter could be handled while fresh, and before an argument date has been assigned.


text:
    434 A.2d 1269
    Perle CORSON, Appellant, v. CORSON’S, INC. and Continental Bank.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Sept. 11, 1981.

      Malcolm H. Waldron, Jr., Philadelphia, for appellant.
    E. Harris Baum, Philadelphia, for Corson’s, appellee.
    Arthur S. Salus, Philadelphia, for Continental, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Perle Corson has appealed from the order entered by the court below opening the judgment by confession obtained by her against appellee in the amount of $4,200. The matter was heard on the petition to open judgment, appellant’s answer and new matter, and appellee’s reply to new matter. No depositions were taken. The central issue for our determination is whether the court below abused its discretion in opening the judgment. The court opened the judgment on the ground that appellee had produced sufficient evidence to justify submission of the case to a jury. We reverse.

Appellant argues that the lower court erred in opening the judgment on two grounds: first, that it should not have considered the matter on the basis of the pleadings alone because they contained disputed issues of fact and thus appellee should have, but did not, support its petition by depositions pursuant»to Pa.R.C.P. 209; and second, that appellee’s petition does not show a meritorious defense.

The facts are as follows. Appellee leased premises from appellant for a monthly rental of $4,000, under a written lease.

By letter dated February 23, 1979, appellee exercised its right to terminate the lease as of March 31, 1979. In the letter, counsel for appellee also stated:

In addition, Pennamco is holding in escrow taxes in the amount of $5,059.09. We are authorizing them to forward to you a check in the amount of $4,000 from this escrow account to be used as payment for the last month’s rental and are requesting them to return the amount of $1,059.09.

Appellant did not reply to the proposal set forth in the letter with regard to payment of March’s rental from the escrowed tax funds, and on March 2, 1979, brought suit to confess judgment for the amount of March’s rent.

In her answer to petition to open judgment, appellant asserted that “payment of any tax liability under the lease is mutually exclusive of payment of the rent,” and that Paragraph 6(b) of the lease “commits the lessee to pay ‘in addition to the minimum rental’ taxes assessed which are ‘in excess of and over and above those assessed or imposed’ at the time of making the lease.” The answer also averred that appellee “has attempted to set off the tax escrow funds for the monthly rental contrary to the terms of the lease.” Paragraph 6 of the lease obligates appellee-lessee to pay as rent in addition to the monthly minimum rental any damages to the premises caused by lessee’s neglect; all increases in fire insurance premiums; all charges for water in excess of the yearly minimum meter charge; and all sewer rental charges.

As to taxes, paragraph 30 of the lease provides:

Notwithstanding anything to the contrary contained herein, it is agreed and understood that Lessee will pay when due, all real estate taxes, all water and sewer rents, and all insurance premiums on the within demised premises, in addition to the monthly rentals hereinabove stated, so that the yearly rental paid to the Lessor shall be net to the Lessor.

(Emphasis added.)

This clause clearly indicates that the sums paid by the lessee for taxes are in addition to the monthly rental owed. Further, upon examination of the lease, we can find nothing which authorizes appellee to have the funds es-crowed for taxes used to pay the monthly rental.

The same holds true with respect to the sums which appellee agrees to pay for damages, increases in insurance premiums, and water and sewage. In the absence of such authorization, appellee could not demand that the funds contained in the tax escrow account be applied toward March’s rental payment. In addition, the February 23 letter setting forth such a proposal cannot be deemed to be a modification of the lease contract. It is fundamental that a contract be modified only by the assent of both parties, and only if the modification is founded upon valid consideration. Wilcox v. Regester, 417 Pa. 475, 207 A.2d 817 (1965). The letter here was merely a proposal by appellee, which was neither replied to nor accepted by appellant. Nor was any new consideration offered by appellee in connection with its proposal. In the absence of these requirements, we hold that there was no modification of the lease allowing appellee the right to use the escrowed tax funds to pay March’s rent and that the lease does not permit appellee to do so.

We address appellant’s first contention that the lower court should not have opened the judgment on the basis of the pleadings alone, without depositions, and that to do so violated Pa.R.C.P. 209. At the outset, we note that Rule 209 is permissive rather than mandatory. It gives the moving party the right to take depositions in support of his position, if issues of fact are present, within fifteen days after the filing and service of the answer. If the moving party does not take depositions on disputed issues of fact, he admits all averments of fact responsive to the petition which are properly pleaded in the answer. McEvilly v. Tucci, 239 Pa.Super. 474, 481, 362 A.2d 259, 263 (1976). If this right is not exercised, then the issue is ripe for argument and decision upon the pleadings alone. Walnut-Juniper Company v. McKee, Berger & Mansueto, Ind., 236 Pa. Super. 1, 7, 344 A.2d 549, 552 (1975). (Emphasis added.)

We find that the court below did not act improperly in deciding the case upon the pleadings alone. Although depositions may have aided the court, appellee’s decision not to take them cannot be viewed here as being fatal to its position, since the Rule gives the choice of either taking depositions or of ordering the cause for argument on the pleadings alone.

We now turn to appellant’s second contention, that a meritorious defense has not been shown by appellee. It is axiomatic that to open confessed judgment, the judgment debtor must act promptly and produce evidence in support of a meritorious defense. Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976). Prior to the amendment of Pa.R.C.P. 2959(e), effective December 1,1973, the debtor had to produce evidence of a nature that would persuade the court that upon submission to a jury a verdict in his favor could be upheld. See Ritchey v. Mars, 227 Pa.Super. 33, 324 A.2d 513 (1974). Pa.R.C.P. 2959(e) now provides that “if evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment.” “Thus, a court can no longer weigh the evidence in support of the defense, but must only determine whether there is sufficient evidence to allow the issue to go the the jury.” Wolgin v. Mickman, 233 Pa.Super. 218, 221-222, 335 A.2d 824, 826 (1976). “Otherwise stated, the judgment should be opened where the evidence produced would be sufficient to prevent a directed verdict against [appellee].” Greenwood v. Kadoich, supra, 239 Pa.Super. at 375, 357 A.2d 606.

The issue for our determination, therefore, is whether appellee has produced evidence sufficient to prevent a directed verdict from being granted against it.

Generally, where factual questions are presented, a directed verdict cannot be granted. See Austin v. Harnish, 227 Pa.Super. 199, 323 A.2d 871 (1973). Here, the lower court found the issue to be the amount of rent due for the month of March, 1979 which on the surface would appear to be a question of fact. However, the issue raised by appellee’s petition is whether appellee is entitled either to a refund from the tax escrow account or to a credit against March’s rent, a question of law. Where the sole question is as to the application of the law to the facts or as to the legal effect of the facts, the case is a proper one for a directed verdict. 6 Pennsylvania Standard Practice 316.

We hold that, viewing the petition and answer in a light most favorable to appellee, appellee has not produced evidence sufficient to prevent a directed verdict against it. Appellee has not set forth a meritorious defense here. A defense is that which diminishes the plaintiff’s cause of action or defeats recovery by the plaintiff.

Corson’s, Inc., is asserting only that it is entitled to either a refund or to a credit against the rent. It is not asserting that it does not owe Perle Corson rent for March, 1979, or that it has already paid the rent owed for that month, which would be a meritorious defense. Appellee has cited no law in support of its position that it is entitled to have escrowed funds used to pay the monthly rental, and we know of no legal principle giving it the right to do so. Nor does anything in the lease, the governing instrument, give appel-lee the right to do so. Since the standard to be applied here in determining whether or not the judgment should be opened is whether appellee’s evidence would be sufficient to prevent a directed verdict against it and whether it poses a question which justifies submission of the case to a jury, we hold that the court below abused its discretion in opening the judgment. “[I]f in reaching a conclusion, the law is overridden or misapplied. .. discretion is abused.” Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942).

By reason of the foregoing, the order of the lower court is reversed.

SPAETH and HOFFMAN, JJ., concur in the result.

      . The lease originally specified a monthly rental of $2,500, which was subsequently modified by written agreement to provide for rental of $4,000. Therefore, as of the time the complaint in confession of judgment was filed, the monthly rental was $4,000.

      . The written modification to the original lease also provided that either party could terminate the monthly term upon sending of notice by certified mail not less than thirty days prior to the expiration of the said term.

      . In this regard, we note that Corson’s Inc. filed a praecipe with the lower court to have the case heard on the basis of the pleadings alone, in accordance with Pa.R.C.P. 209; otherwise the case would not have been ripe for decision by our court. See Shainline v. Alberti Builders, 266 Pa.Super. 129, 403 A.2d 577 (1979).

      . See Continental Supermarket Food Service, Inc. v. Soboski, 210 Pa.Super. 304, 232 A.2d 216 (1967).