text:
    464 A.2d 494
    ESTATE OF Romano SILVESTRI v. Ronald KINEST and Asa Kinest, Appellants.
    Superior Court of Pennsylvania.
    Argued April 14, 1983.
    Filed Aug. 12, 1983.

      Francis G. Janson, Philadelphia, submitted a brief on behalf of appellants.
    Joseph S. Britton, Bristol, for appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in denying his petition to open a confessed judgment. He argues that his petition set forth a meritorious defense which gave rise to a jury issue, and that he properly preserved “a ground for relief by first raising it generally in his petition, then specifically in a subsequent memorandum of law.” We disagree and, accordingly, affirm the order of the lower court.

In' 1976, appellant and appellee entered into a lease agreement. On January 6, 1982, appellee filed a confessed judgment against appellant based upon the lease’s warrant of attorney. Appellant filed a petition to open the confessed judgment, and appellee answered. Appellant then filed a memorandum of law that presented arguments in support of his petition. The lower court denied the petition, prompting this appeal.

Appellant’s position is that the lower court incorrectly disallowed the defenses raised in his petition to open. The petition averred (1) a specific defense, that appellee failed to file an affidavit of appellant’s income, and (2) a general defense, that appellee failed to comply with the “other laws of the Commonwealth of Pennsylvania.” -

Appellant contends first that he set forth in his petition a meritorious defense that gave rise to a jury issue. This contention lacks merit. One who petitions to open a confessed judgment must offer a meritorious defense. Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Superior Ct. 499, 428 A.2d 156 (1981). Opening a confessed judgment is within the discretion of the lower court and this discretion will not be disturbed on appeal absent a manifest abuse of discretion. Lincoln Bank v. Kelly, 282 Pa.Superior Ct. 261, 422 A.2d 1106 (1980). However, the court’s discretion must be guided by Pa.R.Civ.P. 2959(e), requiring 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.”

Appellant averred that appellee was not entitled to a confessed judgment having failed to file an affidavit alleging that appellant’s income exceeded ten thousand dollars annually. Appellant’s defense apparently was based on Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.1970), affirmed, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972); however, appellant misinterpreted this case. In Swarb, the court held that a Confession of Judgment against an individual having an annual income of less than ten thousand dollars is constitutionally impermissible unless it is shown that the individual gave an intelligent and voluntary waiver. Thus, Swarb shielded a class of individuals whose protection is retracted if it is shown that the individual gave an intelligent and voluntary waiver.

In his petition, appellant did not produce evidence of his membership in the protected class. Thus, there was no issue to be submitted to the jury. Also, nowhere in the Swarb opinion did it require the creditor to file an affidavit alleging that the debtor’s annual income was over ten thousand dollars. Evidence that the debtor’s annual income is less than ten thousand dollars must be pled as an affirmative defense by the debtor. See Poelcher v. Zink, 375 Pa. 539, 101 A.2d 628 (1953) (creditor should not be required to anticipate a defense and therefore sustain a greater burden of proof than is normally necessary).

Appellant contends next that he properly preserved “a ground for relief by first raising it generally in his petition and then specifically in a subsequent memorandum of law.” This contention lacks merit. Relief from a judgment by a confession shall be sought by petition. All grounds for relief must be asserted in a single petition. Pa.R.Civ.P. 2959(a). A party waives all defenses and objections which he does not include in his petition or answer. Pa.R.Civ.P. 2959(c). Affirmative defenses must be pled as new matter and therefore, where judgment has been confessed, as a part of the petition to open. Dameron v. Woods Restaurant, Inc., 305 Pa.Superior Ct. 346, 451 A.2d 681 (1982). See Pa.R.Civ.P. 1030 (all affirmative defenses must be pled in a responsive pleading called New Matter).

The defenses raised in appellant’s subsequent memorandum of law are deemed waived because they were not asserted in the petition. By listing specifically in Rule 1030 examples of affirmative defenses, our Supreme Court evidenced its intent that all parties plead specifically to enable opposing counsel to know the litigant’s position, assertions, arguments, and defenses. See also Pa.R.Civ.P. 1019 (material facts upon which a defense is based shall be stated in a concise and summary form). Appellant failed to give proper and timely notice to opposing counsel when he pled the general defense, and thereby, he failed to preserve any of the specific defenses subsequently raised in the memorandum of law.

In conclusion, because appellant did not set forth a meritorious defense, the lower court did not abuse its discretion in refusing to open the judgment. Accordingly, we affirm the lower court’s denial of appellant’s petition to open.

Order affirmed.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    464 A.2d 496
    COMMONWEALTH of Pennsylvania v. Johnny BAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed Aug. 12, 1983.

      John P. Yatsko, Norristown, for appellant.
    Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant, Johnny Baker, was charged with assault by prisoner, recklessly endangering another person, possessing prohibited offensive weapons, two counts of possessing instruments of crime, two counts of simple assault, and two counts of aggravated assault. These charges resulted from appellant’s unprovoked attack upon fellow inmate, George Ingram, on August 17, 1976, with a four-inch pair of trimming shears while both men were incarcerated in the State Correctional Institution at Graterford, Pennsylvania.

On January 27, 1977, appellant was brought before the Court of Common Pleas in Montgomery County, Pennsylvania, for a non-jury trial. An assigned attorney from the Montgomery County Public Defenders’ Office appeared on appellant’s behalf; however, appellant insisted upon representing himself. Thereafter, the court conducted a colloquy in an attempt to assure the validity of appellant’s waiver of counsel. Satisfied that appellant was fully aware of the charges and his constitutional rights, those remaining and those waived, the court permitted assigned counsel to withdraw and proceeded to conduct the non-jury trial with appellant promoting a pro se defense.

Appellant was found guilty of simple assault; he was acquitted on the remaining charges. At sentencing on April 29, 1977, appellant was ordered to serve a term of imprisonment of not less than one nor more than two years in a State Correctional Institution. This term was to run consecutively to those under which appellant was serving at the time of the offense. Appellant also appeared at sentencing without legal representation, and no colloquy was conducted at sentencing to determine the validity of appellant’s continued waiver of his right to counsel.

Although appellant made oral post trial motions immediately following trial, no appeal was taken from the judgment of sentence; instead, appellant filed a pro se petition for post conviction relief. The Commonwealth filed a motion to dismiss and an answer to appellant’s petition. Appellant was represented by counsel at oral argument on his P.C.H.A. petition. The lower court briefly took the matter under advisement prior to denying appellant’s prayer for relief. This appeal followed.

Appellant seeks a new trial on grounds that he did not knowingly, intelligently and voluntarily waive his right to counsel at trial. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court considered the Sixth Amendment and both English and colonial jurisprudence as bases for holding that' an accused possesses the constitutional right to proceed with his defense without the aid of counsel. As noted by the Faretta court, the Sixth Amendment provides the minimum procedural due process rights of notice of the nature and grounds for each charge, confrontation, compulsory process for securing witnesses and the assistance of counsel. These rights belong solely to the accused, and they are aids to a “willing defendant.” Therefore, according to the Faretta court, it would contravene the logic of the Sixth Amendment to force counsel upon an unwilling defendant, thereby promoting counsel as the master of the accused, rather than as his assistant.

The Faretta court dismissed any conceivable conflict between the accused’s right to be prosecuted only where he was accorded the opportunity to defend himself with legal assistance, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and the accused’s option to proceed with counsel; the former maxim does not compel an accused to defend criminal charges with the aid of counsel.

Accordingly, in this case, the lower court would not simply dismiss appellant’s wishes, as expressed in the following portions of the colloquy at trial:

THE COURT: Well, you started to say something that you didn’t want Mr. Fitzgerald to represent you.
APPELLANT: No, I don’t.
THE COURT: Do you have a lawyer?
APPELLANT: Pm my own lawyer.
THE COURT: You want to represent yourself? APPELLANT: I am going to.
(N.T., January 27, 1977, page 5).
THE COURT: You understand your rights concerning legal representation, do you not?
APPELLANT: I do.
THE COURT: Understanding that and everything that I said to you, will you tell me specifically whether or not you desire to be represented by a lawyer?
APPELLANT: Well, your Honor, I think I answered that question from the beginning. I am my own lawyer.
(N.T., January 27, 1977, page 5).

Having heard appellant’s desire to proceed without counsel’s assistance, the trial judge was required to comply with the skeletal mandate of Pa.R.Crim.P. 318(c):

PROCEEDINGS BEFORE A JUDGE. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.

Rule 318(c) does not instruct lower court judges as to the extent of an inquiry into the accused’s knowledge and intelligence and the voluntariness of his waiver. In Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964), our Pennsylvania Supreme Court held that this inquiry shall not be engaged in lightly; rather, constitutional rights, elements of the offenses, ranges of penalties and fines and other relevant facts and law shall be adequately explained to the accused. The onus carried by trial judges here was explained in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948):

To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understanding^ and wisely made only from a penetrating and comprehensive examination of all the circumstances under which a plea is tendered.
Id., 332 U.'S. at 723-724, 68 S.Ct. at 323.

A form providing for the simple written waiver of counsel, without this on-the-record inquiry, will not suffice as an alternative means to assuring valid waivers. Commonwealth ex rel. McCray v. Rundle, supra.

The rights to effective assistance of counsel and to represent oneself are extensively applied. For instance, a judge’s thorough inquiry into the accused’s appreciation of both rights must be used in certain summary proceedings, Pa.R.Crim.P. 318(a), at trial, Gideon v. Wainwright, supra, guilty plea hearings, Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 206 A.2d 322 (1965); Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964), sentencing, Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964), and every “critical stage” of a criminal proceeding. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Gideon v. Wainwright, supra. Once an accused is deemed to have made a voluntary, knowing and intelligent waiver of counsel, a judge is encouraged at trial in court cases to make counsel available throughout the proceedings in, at least, an advisory capacity: Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).

In this case, immediately after counsel from the Montgomery County Public Defender’s Office informed the court that appellant wished to represent himself, the trial judge reviewed the charges:

THE COURT: Well, let me say what the charges are and then I may have a colloquy with him.
MR. FITZGERALD: Very well, sir.
THE COURT: The first information is 3523-76. It’s a multiple count indictment and the District Attorney has red-lined certain ones. Count four is the first one and it’s simple assault-bodily injury. Count five is aggravated assault-serious bodily injury. Count seven is simple assault with a deadly weapon-bodily injury and count eight is aggravated assault-serious bodily injury.
The fifth count makes it a felony; doesn’t it? That’s a felony information, do you agree?
MR. KEENAN: I believe so.
MR. FITZGERALD: Yes.
THE COURT: 3523.1 of 76 charges assault by prisoner and—well, it happened on the same alleged date as the first one, August 17, 1976. It involved someone named George Ingram. The assault by prisoner is the same date and the same alleged victim. It says the weapon or instrument used were four inch trimming shears. 3523.3 of 76 is a three count indictment, possession of an instrument of crime with intent, possession of a weapon with intent and possession of an offensive weapon. Again, it’s the same date and the same trimming shears.

(N.T., January 27, 1977, pp. 3-4).

An instruction to appellant concerning his right to the services of counsel and his right to free representation, should he prove indigent, immediately followed the court’s review of the charges. Afterwards, the court inquired into appellant’s understanding of the compiled, maximum imprisonment of “20 or more years”, and the need for him to be free from the effects of intoxicants, controlled substances, prescribed medicine or drugs.

In Commonwealth v. Hauser, 265 Pa.Super. 135, 401 A.2d 837 (1979), the defendant waived his right to counsel in defense of charges for neglecting to support an illegitimate child. The lower court colloquy merely contained inquiries into the defendant’s employment and his eligibility for free assistance of counsel. The court also criticized the defendant for freely spending his income, not paying taxes and using taxpayer’s money to defray the cost of legal representation. The Hauser court reversed and remanded for a new trial because the colloquy did not produce a valid waiver of counsel inasmuch as it failed to assure the defendant’s understanding of the charge, possible penalties and fines and the risks of a pro se defense. With respect to “mere recitation” of the charges, the Hauser court held:

It is true that the nature and extent of a judge’s inquiry into the competence of a tendered waiver will be affected by the particular factual circumstances. Thus, in a case involving a simple offense, the explanation need not be as detailed as in a case involving a more complex or obscure crime. However, in all cases, simple or complex, the record must show that the judge has determined the competency of the waiver. That determination cannot be based on a mere recitation of the indictment or information; mere recitation can never be equivalent to “penetrating and comprehensive examination.”

Id., 265 Pa.Superior Ct. at 142, 401 A.2d at 841.

It is evident that the trial judge here merely read the information; he reviewed neither the elements of the offenses nor the factual basis of each charge. We find this portion of his inquiry to be “mere recitation” of the charges. Were we to analyze the validity of appellant’s waiver under the “totality of the circumstances” test, espoused by Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), as an alternative mechanism for determining the validity of guilty pleas, but not yet applied by our courts to the validity of right to counsel waivers, the lower court colloquy remains deficient. Unlike Shaffer, supra, the waiver here could only occur before the Commonwealth presented its case; therefore, there was no prosecution testimony to apprise appellant more fully of the nature of the charges. Similarly, unlike Shaffer, we cannot find prejudice incurred by the Commonwealth. The Commonwealth carries the burden of proving the validity of an accused’s waiver of right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). The Commonwealth did not encourage the lower court to make a complete inquiry; therefore, we cannot consider the re-presentation of a case at new trial to be prejudicial where the inconvenience was largely self-imposed.

Appellant also argues that sentencing was invalidly imposed in that no inquiry was made into his choice to appear without counsel. In light of our decision to reverse and remand for a new trial on grounds of a deficient colloquy on waiver of counsel at trial, we need not address this second contention.

Reversed and remanded for a new trial on one count of simple assault, causing bodily injury.


author: LIPEZ, Judge:

text:
    464 A.2d 501
    J. Joseph DANYO, M.D., Appellant, v. ARGONAUT INSURANCE COMPANIES.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Aug. 12, 1983.
    William B. Anstine, Jr., York, for appellant.

      Robert A. Lerman, York, for appellee.
    Before PRICE , WIEAND and LIPEZ, JJ.

       PRICE, J. did not participate in the consideration or decision of this case.

   LIPEZ, Judge:

J. Joseph Danyo, M.D., plaintiff below, appeals from the lower court’s grant of defendant Argonaut Insurance Companies’ (Argonaut) motion for summary judgment in this suit on a professional liability insurance policy. He contends that the court erred in finding that Argonaut had no obligation under the policy to defend him in an action by a patient’s attorney for damages for loss of a contingent fee due to Dr. Danyo’s negligence in failing to prepare a proper medical report and to testify as agreed regarding the medical condition of the patient. We agree that this finding was erroneous.

The facts of the case are not in dispute. Argonaut issued a professional liability insurance policy to Dr. Danyo which provided, inter alia, that Argonaut would defend Danyo in any suit seeking damages for injury arising out of his rendering or failure to render professional services. While this policy was in full force and effect, Danyo was sued by Allen H. Smith, an attorney who had previously represented one of Danyo’s patients in a suit for damages for personal injuries suffered in an automobile accident. Smith’s suit claimed that Dr. Danyo had been negligent in failing to render professional services, specifically, in failing to prepare proper medical reports and to testify as agreed with regard to the causes of his patient’s injuries. Smith sought damages, alleging that as a result of this negligence, he had lost the personal injury suit and, consequently, his contingent fee. Danyo notified Argonaut of the institution of this suit in accordance with the requirements of the insurance policy, but Argonaut refused to provide a defense for him, with the result that Danyo incurred expenses of $1,567.35 in the successful defense of the action.

In granting Argonaut’s motion for summary judgment, the lower court found the suit instituted by Smith to be outside the scope of the policy’s coverage because the word “injury” as used in the policy did not contemplate the loss of a contingent fee by a lawyer representing a patient of the insured. In making this finding, the court focused on the following language in the insurance agreement:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: injury arising out of the rendering of or failure to render, during the policy period, professional services by the individual insured ... and the company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false or fraudulent ____

We see nothing in this language which can fairly be construed to limit the meaning of the word “injury” so as to exclude the type of loss suffered by attorney Smith. Indeed, words which might have been used to place limits upon the types of injury covered by the policy are conspicuously absent. The policy does not restrict its coverage to personal injury, for example, nor does it indicate that the right and duty to defend a lawsuit is limited to suits brought by a patient or his representative. Rather, the policy uses words which imply that the language is to be broadly construed. It covers all injuries “arising out of” the insured’s rendering or failure to render professional services, and the company agrees to defend “any” suit against the insured seeking damages for such injuries. In light of this language, we cannot agree with the lower court that it is at all clear that defense of a suit like the one brought by Smith was beyond the contemplation of the parties. Because of this ambiguity as to the types of injuries covered by the policy and the extent of Argonaut’s duty to defend, we must construe the policy strongly against the insurer and liberally in favor of the insured so as to effect the dominant purpose of the contract: indemnity. Patton v. Patton, 413 Pa. 566, 593, 198 A.2d 578, 582 (1964); Miller v. Prudential Insurance Co., 239 Pa.Super Ct. 467, 472, 362 A.2d 1017, 1020 (1976). Accordingly, we will construe the policy so as to include within the term “injury” the type of loss suffered by attorney Smith and thus to include within the types of suits which Argonaut is required to defend actions like the one brought by Smith against Dr. Danyo.

Argonaut argues further, however, that even if Smith’s loss is an injury within the meaning of the contract, it was not covered because it was due to Dr. Danyo’s failure to prepare reports and to testify in court. These services, Argonaut claims, are not “professional services” covered by the contract. We disagree. Although the policy does not define professional services, it is clear that the intended scope of the term goes beyond the actual treatment of patients, for the insurance agreement explicity provides that Argonaut will indemnify the insured for liability for:

injury arising out of the rendering of or failure to render ... professional services by the individual insured ... performed in the practice of the individual insured’s profession ... including service by the individual insured as a member of a formal accreditation or similar professional board or committee of a hospital or professional society [emphasis added].

The policy itself thus supports Dr. Danyo’s argument that professional services go beyond the actual treatment of patients. Moreover, by using the word “including” in referring to service on boards or committees as professional services, the policy implies the existence of a range of other services, not enumerated, which fall within the policy’s coverage. It fails, however, to specify in either that clause or the exclusions from liability any limitations as to the coverage of nontreatment services. Consequently, there is much room for reasonable minds to differ in the interpretation of the term “professional services”. In the face of this ambiguity, we must again interpret the policy liberally in favor of the insured. Since the reports and testimony which were the subject of Smith’s lawsuit had value in court only because of Dr. Danyo’s professional status, his medical knowledge and experience, and his doctor-patient relationship with Smith’s client, we conclude that the preparation of the reports and the rendering of testimony were, in that context, professional services within the coverage of the policy issued by Argonaut. Accordingly, we find that Argonaut was obligated to provide a defense for Dr. Danyo in that suit and that Danyo is entitled to the stipulated damages for Argonaut’s failure to do so.

The order of the lower court is vacated and the case is remanded with instructions to enter judgment in favor of the plaintiff, J. Joseph Danyo, M.D. Jurisdiction is relinquished.


author: PER CURIAM:

text:
    464 A.2d 503
    COMMONWEALTH of Pennsylvania, DEPARTMENT OF LABOR AND INDUSTRY, v. Joseph GIUGLIANO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1982.
    Filed Aug. 12, 1983.

      Stephen P. Ellwood, Pottsville, for appellant.
    William C. Steppacher, Dunmore, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal from a conviction and judgment of sentence for a summary violation of the Wage Payment and Collection Law, 43 P.S. 260.1 et seq. Appellant was prosecuted by the Department of Labor and Industry for the summary offenses of failing to pay wages to forty-two (42) employees of Cheryl Ann, Inc., for the week ending March 16, 1979. A district justice found appellant guilty, and an appeal was taken to the Court of Common Pleas of Snyder County. The court found appellant guilty, sentenced him to a fine of one hundred dollars ($100.00) plus costs for each unpaid employee. This appeal followed.

On appeal, appellant raises the following contentions: (1) his right to appeal is not waived; (2) the evidence is insufficient to sustain the verdict because the Commonwealth failed to prove he was an officer of the corporation and that he was liable for payment of the wages in question; (3) the Commonwealth violated his equal protection rights by prosecuting him and dismissing the charges against the corporation’s president. We cannot reach the merits on all of appellant’s claims, however, since there is no indication in the record that appellant filed post-verdict motions in accordance with Pa.R.Crim.P. 1123. On the other hand, there is also no indication in the record that appellant was advised, after verdict, of his right to file post-verdict motions and the consequence of the failure to so file. Pa.R.Crim.P. 1123(c).

Appellant’s de novo trial was held in December of 1980 which was prior to the decision of this court in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (post-verdict motions are required to preserve issues for appeal following a de novo trial in summary cases). In Commonwealth v. Picker, 293 Pa.Super. 381, 383-384, 439 A.2d 162, 163-164 (1981), President Judge Cercone dismissed the application of Koch to cases predating the decision in that case:

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16, (1981); Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Super.Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra [292 Pa.Super.] 224 at 227 n. 3, 437 A.2d 16 at 18 n. 3.

Accordingly, in Picker, the judgment of sentence was vacated and the case remanded for the filing of post-verdict motions nunc pro tunc within ten days. See also Commonwealth v. Ivey, 307 Pa.Super. 274, 453 A.2d 349 (1982); Commonwealth v. Florida-Eastern Van Lines, Inc., 305 Pa.Super. 481, 451 A.2d 749 (1982); Commonwealth v. Cogan, 303 Pa.Super. 153, 449 A.2d 624 (1982); Commonwealth v. Ferrone, 302 Pa.Super. 282, 448 A.2d 637 (1982); Commonwealth v. Patterson, 296 Pa.Super. 146, 445 A.2d 191 (1982); Commonwealth v. Cascario, 298 Pa.Super. 519, 445 A.2d 109 (1982); Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982); Commonwealth v. McNelis, 297 Pa.Super. 4, 442 A.2d 1184 (1982).

We recognize appellant claims his right to appeal is not waived due to the applicability of Koch in this matter. However, appellant further contends a remand is unnecessary because the record is adequate for this court to dispose of all claims on the merits. We disagree that a remand is unnecessary. In Koch the lower court at least had the opportunity to justify and articulate the reason for its decision because it issued an order pursuant to Pa.R.App.P. 1925(b), although this is not a substitute for post-verdict motions. Commonwealth v. Koch, supra. In the instant appeal both post-verdict motions and a concise statement of matters complained of on appeal pursuant to Pa.R.App.P. 1925(b) are absent. Therefore, the lower court in this case did not have the opportunity to reconsider its decision in light of any alleged error nor did it have the chance to express the reasons for its decision on all the issues raised in this appeal.

Judgment of sentence vacated and case remanded for the filing' of post-verdict motions nunc pro tunc.


text:
    464 A.2d 505
    COMMONWEALTH of Pennsylvania v. Gilbert WOLAVER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed Aug. 12, 1983.

      Eugene Arthur Steger, Jr., Kennett, for appellant.
    Steven R. Guccini, Assistant District Attorney, Milford, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   PER CURIAM:

Appellant was convicted before a District Justice of violating § 4941(a) of the Motor Vehicle Code, Maximum Gross Weight of Vehicles, 75 Pa.C.S.A. § 4941. He appealed to the Court of Common Pleas of Pike County. After a de novo trial, appellant was again found guilty and fined $4,500.00 plus costs. This appeal followed.

Appellant raised ten issues on appeal. However, we are unable to review these issues since no post-trial motions were filed in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

The record in this case reveals that the trial court failed to inform appellant of his right to file post-trial motions. The court merely found appellant guilty and immediately imposed sentence. Under these circumstances, we conclude that appellant did not knowingly and intelligently waive his right to file post-trial motions. Therefore, we must remand this case to the trial court for the filing of post-trial motions nunc pro tunc. Commonwealth v. Williams, 290 Pa.Super. 158, 434 A.2d 179 (1981).

Judgment of Sentence vacated and case remanded for further proceedings.

Jurisdiction relinquished.


author: WICKERSHAM, Judge:

text:
    464 A.2d 506
    BROAD AND LOCUST ASSOCIATES, a Pennsylvania Limited Partnership v. LOCUST-BROAD REALTY COMPANY, a Pennsylvania General Partnership, Appellant.
    Superior Court of Pennsylvania.
    Argued April 19, 1983.
    Filed Aug. 19, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Gilbert E. Toll, Philadelphia, for appellant.
    Leonard Dubin, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   WICKERSHAM, Judge:

This is a consolidated appeal from two lower court orders enjoining appellant Locust-Broad Realty Company from foreclosing on the instantly considered commercial mortgage and disallowing a claim for counsel fees. The pertinent facts are as follows.

On June 11, 1980 appellee Broad and Locust Associates (hereinafter “Associates”) entered into an agreement of sale with appellant Locust-Broad Realty Company (hereinafter “Realty”) whereby Realty agreed to sell, and Associates agreed to buy, real estate in Philadelphia consisting of a twenty story office building and adjacent areas, such areas to be developed into a parking garage. The parking garage was to be built beside the Bellevue-Stratford Hotel.

The agreement of sale called for a selling price of $4,000,-000, subject to many adjustments. Approximately $2,500,-000 of the price was to be paid in cash at the time of settlement and Realty was to take a $1,500,000 purchase money mortgage in the office building at 8% annual interest. Under paragraph 18(a) of the mortgage agreement Associates was prohibited from causing or allowing any lien or security interest to arise against the office building except for “any indebtedness incurred in order to finance mortgagor’s construction activities on the adjoining property[.]” Reproduced Record at 33a.

Settlement was concluded on July 2, 1981. Thereafter, Associates obtained a loan commitment of $21,699,000 from Chemical Bank of which $12,622,000 was for the construction of the garage and $9,077,000 was for the renovation of the office building. The Chemical Bank loan was to be secured by a first mortgage on the parking garage and a second mortgage on the office building. Realty objected to this method of securing the loan, however, and refused to issue an estoppel certificate indicating that there were no outstanding defaults under the purchase money mortgage. Associates then filed an action in equity and moved for a preliminary injunction barring Realty from instituting any action under or related to the mortgage between Associates and Realty. A hearing was held before the Honorable Joseph P. Braig of the Court of Common Pleas of Philadelphia County on June 29 and 30, 1982. On July 1, 1982, Judge Braig granted the preliminary injunction and fixed bond at $5,000. Thereafter Realty requested that Associates pay the legal fees Realty had incurred in the action in accordance with the terms of their mortgage. Associates refused to do so; subsequently Judge Braig amended his order so as to enjoin an action for attorney’s fees brought under the mortgage. Appeals from both orders followed.

Appellant Realty phrases the first eight questions involved as follows:

1. Whether Appellee’s legal right to a Preliminary Injunction is clear, certain, unquestionable, and not subject to doubt?
2. Whether the Preliminary Injunction awarded Appellee which allowed it to alter the status quo and gain an advantage over Appellee [sic] is permissible under law?
3. Whether a mortgage holder is entitled to strict enforcement of a provision barring secondary financing?
4. Whether the terms and conditions of a mortgage freely bargained at arms-length are entitled to strict enforcement?
5. Whether in the context of enforcement of a commercial mortgage, a breach of a provision of the mortgage may be determined by the court not to be a breach by finding that the breaching act was “primarily” a portion of a permitted act under the mortgage?
6. Whether equity will aid a party to break its own contract freely negotiated?
7. Whether the “irreparable harm” requisite for the issuance of equitable relief may consist of a party’s exposure to risks which were voluntarily and knowingly undertaken by the party?
8. Whether the evidence before the lower court supported a finding of irreparable harm?

Brief for Appellant at 3-4.

Essentially, Realty’s position is that paragraph 18 of its purchase money mortgage agreement with Associates prohibits Associates from causing or allowing any lien or mortgage to be placed against the office building except as a result of a loan secured solely for construction of the garage. Realty points out that the loan between Chemical Bank and Associates provided for the renovation of the office building as well as the construction of the garage and, therefore, the second mortgage on the office building was, to some extent, security for its own renovation rather than security for the construction of the parking garage.

The relevant portion of the agreement between the parties provides as follows:

Except with respect to any indebtedness incurred in order to finance Mortgagor’s Construction Activities on the Adjoining Property, without the prior written consent of Mortgagee, Mortgagor shall not ... create or cause or permit to exist any lien on, or security interest in the Mortgaged Property.

Reproduced Record at 33a.

Initially, we note that “[o]n an appeal from a decree granting or denying a preliminary injunction, the appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the court below.” Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 577-78, 345 A.2d 664, 670 (1975).

“In determining the propriety of the entry of an order granting a preliminary injunction, the question is whether there were any apparently reasonable grounds in the record to justify its issuance.” Fischer v. Department of Public Welfare, 497 Pa. 267, 270, 439 A.2d 1172, 1174 (1982) (footnote omitted).

Here, an officer of Chemical Bank testified that the bank would not have made a loan to Associates solely to construct the parking garage because such a venture would be too speculative. The Chemical Bank officer also testified that it was necessary to improve the office building in order to construct the garage because the bank “felt that the upgrading of the office building, the increase in quality of tenant mix, the cash flow from the building would enhance the overall viability of the garage.” Reproduced Record at 102a.

The lower court committed no abuse of discretion in granting the preliminary injunction. The bank officer’s testimony quoted above clearly indicates that the refurbishing of the office building was a necessary concomitant to securing the financing for the construction of the parking garage. In that sense the entire debt owed by Associates to Chemical Bank was incurred in order to finance the construction of the parking garage; in order to build the garage it was also necessary to upgrade the office building. We find no error on the part of the lower court in this regard.

Appellant Realty frames the next question involved as follows:

Whether the injunction bond was palpably inadequate and whether the Appellee’s oral undertaking to provide security beyond the bond should have been made a condition of the injunction?

Brief for Appellant at 4.

Realty argues that the lower court abused its discretion in setting the bond for the injunction at $5,000 rather than some much higher figure.

The question of the proper amount of a bond for a preliminary injunction is within the discretion of the hearing court. Safeguard Mutual Insurance Company v. Williams, supra. Pa.R.C.P. No. 1531 provides, in relevant part:

(b) Except when the plaintiff is the Commonwealth of Pennsylvania ... a preliminary or special injunction shall be granted only if
(1) the plaintiff files a bond in an amount fixed and with security approved by the court, naming the Commonwealth as obligee, conditioned that if the injunction is dissolved because improperly granted or for failure to hold a hearing, the plaintiff shall pay to any person injured all damages sustained by reason of granting the injunction and all legally taxable costs and fees____

In Roth v. Columbia Distributing Company, 371 Pa. 297, 89 A.2d 825 (1952), the Pennsylvania Supreme Court affirmed a hearing court’s order setting the amount of a preliminary injunction bond and noted that the unlikelihood that damage would be done to the injunctee was a factor weighing against requiring a larger bond. Although this preliminary injunction involves property worth millions of dollars, the actual damage Realty would unjustly suffer if the injunction were dissolved would most likely consist of counsel fees and the largely amorphous damage a primary mortgagee sustains by having a secondary mortgagee behind it in priority for a while. There was no abuse of discretion by the hearing court in setting bond at $5,000 in the circumstances of this case.

Realty also argues that the hearing court set the bond at $5,000 based at least partially on its belief that Chemical Bank would set aside an amount of money equal to the mortgage and that such amount would serve as additional security. Realty argues that no such funds have been reserved, but admits that the statements by Associates’ counsel wherein he allegedly made such guarantees are not part of the record. In any event, we find the bond required to be adequate in view of the reasonably anticipated damages.

Appellant Realty frames the final question presented as: Whether the court erred in amending its Preliminary Injunction without the filing of any pleadings, and without holding a hearing, and after the Preliminary Injunction had been appealed to the Superior Court?

Brief for Appellant at 4.

Realty explains the factual predicate to this claim as follows: “[AJfter the lower court entered its Preliminary Injunction Order, appellant submitted to appellee a bill for its counsel fees pursuant to paragraph 25 of the mortgage. When appellee refused to pay the bill, appellant advised that it would foreclose____” Brief for Appellant at 25. Subsequently, Judge Braig entered an amended order concerning the preliminary injunction prohibiting foreclosure for counsel fees but providing, inter alia:

This Amended Order shall not preclude defendant from filing a Complaint in Assumpsit against plaintiff for any claim for counsel fees for defense of the said equity action that defendant may wish to assert.

Initially we note that Realty’s argument that the lower court issued its amended order after an appeal had been taken is meritless. The amended order was issued on July 28, 1982; a notice of appeal was not filed until July 30, 1982. .

Judge Braig’s amended order merely prevented foreclosure on the realty involved in this case and, therefore, preserved the status quo. Realty remains free to pursue its claim for legal fees in a separate action even while the amended order is in effect. “[A] preliminary injunction is designed to preserve the status quo pending final resolution of the underlying issues[.]” Fischer v. Department of Public Welfare, supra, 497 Pa. at 271, 439 A.2d at 1174. Judge Braig’s amended order preserves the status quo, as does his original order, and we affirm both.

Orders affirmed.

      . Realty retains its mortgage on the property in question, of course.


author:
BROSKY, Judge:
      CIRILLO, Judge,

text:
    464 A.2d 510
    James WURSTER, Paul Wurster and Nelson Hare, Edwin A. Wurster and Gertrude Wurster v. Earl PETERS and City of Philadelphia defendants and Edwin Wurster, Phillip Miller and Conduit and Foundation Company. Appeal of CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1983.
    Filed Aug. 19, 1983.

      Thomas A. Sprague, City Solicitor, Philadelphia, for appellant.
    Joseph Strimber, Philadelphia, for appellees.
    Before BROSKY, CIRILLO and MONTEMURO, JJ.
   BROSKY, Judge:

The issue before us in this appeal is whether the lower court erred in vacating a judgment of non pros which had been entered in appellant’s favor. Because we find that the judgment should not have been removed, we reverse.

Appellees commenced this action by writ of summons on March 19, 1965. They seek damages for personal injuries allegedly suffered in an automobile accident which occurred on January 26, 1964.

A complaint was filed on February 15, 1966. Various pleadings as well as interrogatories were filed between that date and February 4, 1972 when previous counsel withdrew his appearance and new counsel, Joseph Bongiovanni, III, entered his appearance.

On January 20, 1969, appellant, City of Philadelphia, had filed answers to requests for admissions made by an additional defendant. From that date until November 9, 1979, when the action was dismissed, the only apparent activity was the 1972 change of counsel. Nothing else was filed with the Prothonotary.

In August, 1980, appellees’ counsel attempted to file a Certificate of Readiness and discovered that the case had been dismissed in November, 1979, pursuant to Philadelphia Rule SSOil).

On March 12, 1981, new counsel, who entered his appearance for the limited purpose of filing a petition to remove the judgment of non pros, filed such a petition. An amended petition was granted and this appeal followed.

The criteria which must be met if judgment of non pros is to be removed were explained in Faulks v. Papo Bar., Inc., 280 Pa.Super. 454, 456, 421 A.2d 810, 811 (1980), as follows:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two successive years, the action shall be dismissed with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty (60) days’ notice be given by publication once in the Legal Intelligencer.
(3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal. (Adopted February 15, 1973, effective immediately.)
Reinstatement of a cause of action is authorized under Philadelphia Rule 1047A and its replacement rule 350(3) “for good cause shown”. Repeated decisions of this Court and the Supreme Court of Pennsylvania have established that “good cause shown” requires satisfactory proof of three positions, stated in Boyles v. Sullivan, 230 Pa.Super. 453, 455, 326 A.2d 440, 442 (1974) to be as follows:
“The criteria for opening a judgment of non pros are: (1) the petition must be timely filed; (2) the reason for the default reasonably explained or excused; and, (3) the facts constituting grounds for the cause of action be alleged.” (Citations omitted.)

The lower court found that the petition had been timely filed because neither appellees nor any of their attorneys had received notice of the dismissal. Pa.R.C.P. 236 requires that notice of entry of judgment be sent by regular mail to each party or the party’s attorney of record. Although the docket entries indicate that notice pursuant to Pa.R.C.P. 236 had been sent, the lower court found that notice had not been received based on affidavits from the attorneys.

There is apparently a question as to who was counsel of record in 1979. Mr. Bongiovanni says that he had withdrawn his appearance in 1974 at which time Louis Katz entered his appearance. The docket does not, however, reflect this change. The lower court seems to have concluded that the changes of attorney complicated receipt of notice in this case and therefore justified the filing of the petition to remove the judgment 16 months after it was entered, rather than within the 3 months prescribed by Rule 350(3).

In Stringer v. Kaytes, 286 Pa.Super. 551, 557, 558, 429 A.2d 660, 663 (1981), we held, “In those cases ... where the requisite notice has not been provided, we believe the most reasonable procedure is to decide the question of the promptness of the petition on the basis of the date when the plaintiff received actual notice, either from the prothonotary or otherwise of the dismissal of the action.” See also, Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980). Therefore, if we assume that inadequate notice was given, we might find the petition timely filed. In fact, though, we need not reach a determination as to notice, because we have concluded that even if notice was not properly given, the removal was nevertheless improper.

In Corcoran v. Fiorentino, supra, we held that although timely filed, a petition to remove judgment should be denied because “good cause” had not been shown for its removal. Specifically, we found that the plaintiffs had not reasonably explained the lack of activity in the case from the date of the last docket entry to the date of dismissal, a period of approximately 2V2 years.

In this case no explanation has been offered for the ten-year gap in non-activity prior to dismissal. As we explained in Corcoran, 277 Pa.Superior Ct. at 261, 419 A.2d at 762,

The purpose of local rules of court such as Philadelphia Rule 350 is to protect our trial courts from being burdened by stale claims. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., supra [25 Pa.Super. 378] at 384, 378 A.2d [986] at 989. This purpose would be undermined if plaintiffs’ counsel’s explanation of the delay could be deemed reasonable. Consequently, because plaintiffs have failed to reasonably explain the default which occasioned the dismissal of their action, the lower court erred in reinstating this action. (Footnote deleted.)

Similarly, we conclude that the lack of explanation for the default in this case calls for reversal of the lower court’s order. See also Faulks v. Papo Ber, Inc., supra; Stawiarski v. Hall, 300 Pa.Super. 67, 445 A.2d 1302 (1982).

Order reversed and dismissal entered by the Prothonotary reinstated.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. While the majority correctly points out that this case calls for the application of the three-pronged test in Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980), the majority fails to state the proper standard of review we are to apply in reviewing the lower court’s determination. A petition to vacate a judgment of non pros is addressed to the sound discretion of the trial judge, and the decision of the trial judge will not be disturbed absent a showing that there was an error of law affecting the decision, or that there was a clear, manifest abuse of discretion. See, Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Beausang v. Bernotas, 296 Pa.Super. 335, 442 A.2d 796 (1982). Contrary to the view stated in the majority decision, the lower court, which is best situated to deal with matters relating to its own docket, did offer a reasonable explanation for the tardily-filed petition to vacate the judgment, and for the apparent lack of activity in the case from the date of the last docket entry to the dismissal of the case. I cannot say that the lower court order vacating the judgment of non pros based on these reasons is an error of law or an abuse of discretion.

The first prong of the Faulks v. Papo Bar, Inc. test requires that the petition for opening a judgment of non pros be timely filed. The majority points out that Philadelphia Rule 130 (also known as Philadelphia Star Rule 350) provides for a three month period for filing a petition to reinstate a case dismissed under the rule. The majority also recognized the limitation we imposed on the application of this rule in Stringer v. Kaytes, 286 Pa.Super. 551, 557, 429 A.2d 660, 663 (1981) where we wrote:

It would obviously be unfair to require a party to file a petition to reinstate within three months of the date of dismissal when the prothonotary has neglected to notify the party of the dismissal.

The proper notification here, under the generally applicable Pa.R.C.P. 236(a)(2), requires written notice by ordinary mail of the entry of the judgment “to each party who has appeared in the action or to the party’s attorney of record”. The lower court found, based on the affidavits of the parties, that neither the former attorney, Mr. Bongiovanni, whose name still appeared on the docket as attorney but who had since withdrawn from the case, nor the then current attorney, Mr. Katz, had received the requisite notice in the mail. I find no reason to question this finding.

Since the notification was inadequate, Stringer v. Kaytes, supra, requires that a determination of timeliness be based on the date when the plaintiff or his attorney received actual notice of the dismissal of the action. The court below did just that, and found that the six and one-half month delay in filing the petition from the date of actual notice was reasonably explained by the need of counsel to investigate the activities of the three other attorneys in three different firms. The lower court wrote:

In light of the ground work that had to be completed by Mr. Daniels prior to the filing of the petition, the six and one-half month delay cannot be classified as untimely. Rather, the time delay was timely, and reasonably explained.

Thus, the lower court found the “timely filed petition” prong to be satisfied. Given the facts presented in this case, I do not believe that this finding can be classified as an error of law or an abuse of discretion.

The second prong of the Faulks v. Papo Bar, Inc., supra, test requires that the plaintiff reasonably explain the lack of activity in the case from the date of the last docket entry to the date of dismissal. The majority contends that no explanation has been offered for the ten-year gap here. I, however, do not find this view of the record to be correct.

The lower court found a reasonable explanation for the lack of activity based on the fact that neither the attorney who appeared on the docket not the attorney who actually represented the plaintiffs were advised that the matter was subject to dismissal if no action was taken. The lower court wrote:

Clearly, had counsel been so advised they would have had an opportunity to take measures to prevent the dismissal, as was done after same was ascertained.

While this Court in Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980), held that the lack of notice alone is insufficient to require reinstatement, the facts of this case reveal additional considerations that support the lower court’s decision. The plaintiffs have changed attorneys on four occasions between 1972 and 1980, and each change required a period of time for the new attorney to plan and plot trial strategy. In addition, the circumstances surrounding the discovery of the dismissal by Mr. Katz reveal that he was attempting to file a Certificate of Readiness under Philadelphia Rule 151, which required that the Certificate be filed by May 1, 1981 under penalty of dismissal. This filing, attempted to be taken without knowledge of the earlier judgment of non pros, supports the conclusion of the lower court that the attorney would not have allowed the case to go into default had he known that dismissal was possible, knowledge that he lacked because of the inadequacy of the notice. Based on these facts, I would find, as the lower court did, that the second prong of the Faulks v. Papo Bar, Inc., supra, test is satisfied.

The third requirement, that facts constituting grounds for a cause of action be alleged, is easily satisfied in this situation, since the complaint states a prima facie case if the facts, as alleged, are taken as true. International Telephone & Telegraph v. Philadelphia Electric Company, 250 Pa.Super. 378, 378 A.2d 986 (1977). Any arguments going to the merits of the cause of action need not be considered at this point.

Since I find that the lower court did not abuse its discretion in its application of the Faulks v. Papo Bar, Inc., supra, criteria to the facts presented, I would affirm the judgment of the lower court and vacate the judgment of non pros.

      . The rule provides in relevant part:

      . On October 20, 1978, the Honorable David N. Savitt, Court Administrator of the Philadelphia County Court of Common Pleas, directed the prothonotary to give notice required by Pa.R.C.P. 236 whenever a case was dismissed under the local rule.

      . This rule was passed on July 1, 1980, and became effective on September 12, 1980.


text:
    464 A.2d 514
    Patricia ANSELMINO v. Andrew STARANKO, t/d/b/a Staranko’s Auto Body, Appellants.
    Superior Court of Pennsylvania.
    Argued March 30, 1983.
    Filed Aug. 26, 1983.
    William Jon McCormick, Bentleyville, for appellant.
    Blane A. Black, Monongahela, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   PER CURIAM:

Appellants present for our consideration the sole question of whether judgment was properly entered in this matter by the trial court.

The record before us is incomplete, however, as no transcripts of the trial and the post-trial hearing is available for our review. Nor is there included in the record an opinion in support of the questioned Order of the trial court.

Though an Opinion pursuant to Pa.R.A.P. 1925(a) could prove helpful, it is not absolutely necessary for our disposition of the instant case. The trial and post-trial transcripts are essential, however.

Accordingly, we remand this matter to the trial court for the purpose of transcribing and certifying all notes of testimony pursuant to Pa.R.A.P. 1922, and thereafter transmitting the same to this Court. We retain jurisdiction.


author: WICKERSHAM, Judge: SPAETH, Judge,

text:
    464 A.2d 1226
    COMMONWEALTH of Pennsylvania v. Robert TODT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1982.
    Filed July 15, 1983.
    Reargument Denied Sept. 19, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Michael Alan Klimpl, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

This appeal arises out of Robert Todt’s challenge to his conviction of attempted homicide; criminal conspiracy and criminal solicitation. Todt alleges that he was denied a fair trial because of errors relating to the admission of evidence, prosecutorial misconduct and ineffective assistance of counsel; he also complains that his sentence is illegal.

Robert Todt was arrested on July 25, 1980 and charged with offenses involving the shooting of his wife, Loretta Todt. Todt applied for a change of venue because of pre-trial publicity which application was denied by a judge of the Bucks County Court of Common Pleas.

The case came to trial before the Honorable Edmund V. Ludwig and a jury and after a lengthy trial, Robert Todt was found guilty of attempted homicide, criminal conspiracy and criminal solicitation. Post-trial motions were presented to the court below; the lower court, sitting en banc, denied these motions. On April 23, 1981, Judge Ludwig sentenced Todt to a five to ten year prison term on the attempted homicide conviction. Todt received another five to ten year sentence on the criminal conspiracy and criminal solicitation convictions to be served consecutively to the conviction for attempted homicide. This appeal timely followed.

Robert Todt was a board certified special education teacher employed as a high school teacher by the Bensalem Township School District. Todt lived in Levittown, Pennsylvania with his wife Loretta and their two children. In the late evening of March 19, 1980, while Robert Todt was out of the house, an individual entered the Todt residence and shot Loretta Todt. Although the bullet fired destroyed her left eye and remains lodged in her skull, Loretta Todt survived the attack.

At trial, the Commonwealth’s most important witness was John Chairmonte. Chairmonte, a former student in Bensalem High School’s program for students with learning disabilities, was an alcohol and drug abuser with a criminal record. His involvement with the attack upon Loretta Todt was revealed after his arrest on an unrelated charge. John Chairmonte admitted that he shot Loretta Todt at Robert Todt’s behest. In exchange for testimony against Todt, Chairmonte was promised that his sentence for shooting Loretta Todt would not exceed five years to be served in the Bucks County Prison.

Chairmonte testified that in March of 1980 Robert Todt offered him $800 to kill a woman Todt described as a babysitter. Todt gave Chairmonte a .32 caliber pistol and some bullets. Three days before the shooting Todt went to Chairmonte’s home, woke him up and brought him to Todt’s home. Todt and Chairmonte then drove to Frankford Hospital, where Loretta Todt worked. As explained by Chairmonte, the plan was for him to surprise Loretta Todt as she entered her car after work, take her to a back road and shoot her. Chairmonte was, however, too frightened to carry out this scheme.

A new scheme was developed, and Todt gave Chairmonte a key to Todt’s house. On March 19, 1980, Chairmonte entered the Todt house through the garage, shot Loretta Todt and rifled several drawers to make it look as though a burglary had taken place.

The Commonwealth offered evidence to explain Todt’s motive for wishing to have his wife killed. One witness, Colleen Fecho, testified that she had been engaged to Robert Todt and had made substantial plans toward marriage, which was to take place on April 19, 1980. Ms. Fecho further stated that Robert Todt spent the evening of the shooting, March 19, 1980, with her and that he did not leave until about 11:35 or 11:40 p.m. Another witness, Judy Worthington, testified that she was also involved with Todt.

When the Commonwealth rested its case, Todt took the stand in his own behalf. Todt admitted that he was carrying on an extramarital affair and that his fiancee, Ms. Fecho, made wedding plans. Todt said that he lied to his wife to cover up the affair with Ms. Fecho and lied to Ms. Fecho about marriage, for actually, he had no intention of marrying Ms. Fecho.

Todt denied hiring John Chairmonte to kill his wife Loretta. Todt admitted that he had gone to Chairmonte’s home and brought Chairmonte to his own house but insisted that he only helped Chairmonte fill out an application for a job. Character witnesses called for Todt’s defense said that he often helped students to find work. After explaining his contact with John Chairmonte, Todt testified that he spent the evening of the shooting with Colleen Fecho at her house, and that when he got home at 11:45 p.m. he found neighbors attending his injured wife.

Robert Todt’s first appellate issue questions the sufficiency of the Commonwealth’s evidence. Todt argues that because Chairmonte had given different versions of the shooting of Loretta Todt and because the testimony of Chairmonte, an accomplice, came from a corrupt source, there was insufficient evidence to support Todt’s conviction.

Initially, we note the standard of review to be employed in assessing claims of insufficient evidence:

It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he was convicted.

Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1112 (1981).

After a thorough review of the voluminous trial record we believe that the Commonwealth’s evidence, if accepted by the jury, was sufficient to prove Todt’s guilt.

Robert Todt argues that John Chairmonte’s testimony was so unreliable and contradictory that it led to a jury verdict based on conjecture and suggests that the case of Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1970) is controlling. In Bennett, supra, this court reversed a conviction when the Commonwealth’s witness, one Jones

sought to implicate the defendant by giving several wholly different, conflicting and inconsistent versions of when and how he had told her that the car had been in fact stolen by him. On a previous occasion Jones had denied he had ever conveyed to defendant knowledge of the car’s theft. With each new version Jones would recant the previous one and protest that the newest version was in fact the true one. This situation presented the jury not with a mere conflict or contradiction in testimony which was reasonably reconcilable by them, but a situation falling within the rule: “... a case should not go to the jury where the party having the burden offers testimony of a witness, or of various witnesses, which is so contradictory on the essential issues that any finding by the jury would be a mere guess ... when the testimony is so contradictory on the basic issues as to make any verdict based thereon pure conjecture the jury should not be permitted to consider it.”

Id., 224 Pa.Superior Ct. at 239-40, 303 A.2d at 220-21 (citation omitted).

Here, John Chairmonte’s testimony was not so contradictory on the basic issues as to make the guilty verdict against Todt a matter of pure conjecture even though Chairmonte had given different versions of what happened the night of the shooting. When first questioned by the police Chairmonte denied knowledge of the crime. N.T. 12/3/80 at 74-75. Later, Chairmonte told the police that Robert Todt shot his wife while Chairmonte ransacked the first floor of the house. Chairmonte explained that he lied because he did not want to take the “whole rap” for the crime. N.T. 12/3/80 at 77. Finally, Chairmonte told the police that he shot Loretta Todt at Robert Todt’s behest. This last statement Chairmonte gave to the police was consistent with his testimony at trial, which was given in exchange for a relatively light sentence.

Although these accounts of the shooting were unquestionably different:

“A mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not, in itself, indicate perjury on the part of the witness, or that the defendant was convicted on perjured testimony, and is not, of itself, sufficient to compel a new trial. * * * ” However, where the testimony is so contradictory and fantastic to be incredible, the Court has a right to grant a new trial. Commonwealth ex rel. Rook v. Myers, 402 Pa. 202, 167 A.2d 274, 276 (1961).

Commonwealth v. Osborne, 433 Pa. 297, 301, 249 A.2d 330, 332 (1969). See also Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Williams, 290 Pa.Super. 209, 214, 434 A.2d 717, 719 (1981). As the Pennsylvania Supreme Court explained in Commonwealth v. Upsher, 497 Pa. 621, 625, 444 A.2d 90, 92 (1982):

In Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), this Court held that “where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.” However, this rule applies only in those cases where the testimony is so patently unreliable that a verdict of guilt would be based upon pure conjecture. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). In Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), this Court held that contradictions by other witnesses and prior inconsistent statements affect the credibility of the witness and do not render his testimony patently unreliable under the Farquharson standard. Issues of credibility are properly left to the jury for determination. Commonwealth v. Hudson, supra.

(Emphasis added).

Our review of Chairmonte’s testimony convinces us that his testimony was not so unreliable or contradictory as to render the jury verdict against Todt a matter of pure conjecture.

Robert Todt also attacks Chairmonte’s testimony on the ground that the evidence given by an accomplice comes from a corrupt source. Where parties in crime testify against each other, their testimony must be recognized as coming from a corrupt source and therefore must be subject to the closest scrutiny. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Farquharson, supra. Nevertheless, guilt or innocence may be predicated on uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466-67, 447 A.2d 234, 240 (1982); Commonwealth v. Hudson, supra, 489 Pa. at 628, 414 A.2d at 1385; Commonwealth v. Cayton, 300 Pa.Super. 417, 419-20, 446 A.2d 924, 925 (1982). In this case, John Chairmonte’s testimony was not altogether uncorroborated and once on the stand he consistently implicated Robert Todt in the shooting despite vigorous cross-examination. The jury was certainly aware that Chairmonte actually shot Loretta Todt and that Chairmonte received a light sentence in exchange for his testimony against Robert Todt. The obvious credibility questions raised by the testimony of an accomplice were resolved by the jury against Todt.

Todt’s second issue is:

Did the unrelenting presentation of inflammatory prejudicial and irrelevant evidence deprive defendant of a fair trial?

Brief for Appellant at 2.

Todt argues that because of John Chairmonte’s substantial credibility defects, the Commonwealth introduced inflammatory prejudicial evidence to secure a conviction. The allegedly inflammatory evidence consisted of an excessive amount of evidence about Robert Todt’s relationship with his paramour before the shooting, evidence about Robert Todt’s relationship with another woman after the shooting and evidence that Robert Todt hinted that he was connected to organized crime.

In response to Todt’s attack on the admissibility of evidence about his extramarital affairs, the Commonwealth argues that the evidence was relevant as an explanation of Todt’s motive. The prosecution’s theory was that Todt wanted his wife killed because one of his extramarital affairs had led to plans for marriage. The evidence as to Todt’s so-called connections to organized crime was introduced to explain why John Chairmonte agreed to shoot Loretta Todt in the first place and then why he did not collect his payment for doing the job.

.Todt agrees that evidence is admissible if it is relevant but argues that even if the Commonwealth’s evidence was relevant the prejudicial impact of the evidence outweighed its probative value. In determining whether the lower court erred in allowing the testimony complained of we

begin with the general rule that the admission and exclusion of evidence is a matter within the discretion of the trial judge____ That discretion, however, may be abused, and abuse may be found if it appears that the judge admitted irrelevant evidence that was prejudicial to the accused ... or evidence the probative value of which was outweighed by its prejudicial impact____
Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case____ (“Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible”).

Commonwealth v. Krajci, 283 Pa.Super. 488, 495, 424 A.2d 914, 917-18 (1981).

The evidence adduced at Todt’s trial did advance the inquiry. There was extensive testimony about Todt’s engagement to Colleen Fecho (who believed Todt to have been divorced) and the preparations for their marriage which testimony demonstrated a lack of affection for Loretta Todt. It also showed that Todt was not merely carrying on a casual flirtation but rather was in a desperate position, having made public his intention to contract a bigamous marriage. The evidence about Todt’s boasts of connections with organized crime helped explain why John Chairmonte became involved in Todt’s scheme. The probative value of evidence as to Todt’s motives and Chairmonte’s motives for carrying out Todt’s plan outweighed any possible prejudice to Todt.

Todt’s third issue is:

Did the misconduct of the prosecutor deprive defendant of a fair trial?

Brief for Appellant at 2.

Robert Todt argues that he was deprived of a fair trial by prosecutorial misconduct during the trial and during the prosecutor’s closing argument. Todt points out that it is unprofessional conduct for a prosecutor to knowingly, and for the purpose of bringing inadmissible matter to the attention of the jury, ask legally objectionable questions. Todt believes that the assistant district attorney violated this standard during the examination of Judy Worthington.

The Commonwealth’s offer of proof as to Ms. Worthington’s testimony was that she would say that Robert Todt took her to a local park and explained that he was going to Virginia. Todt also told Ms. Worthington that he would take her on a trip with his wife’s inheritance. After a defense objection was overruled, Ms. Worthington was asked what happened at the park, she replied, “We had talked and after awhile we got intimate.” N.T. 12/5/80 at 8. A defense motion for a mistrial was denied and a lengthy sidebar conference was held. A careful examination of the record reveals that the prosecutor was not attempting to bring prejudicial matter before the jury. When the prosecutor asked Ms. Worthington what happened at the park he wanted to show the jury that Todt had plans for his wife’s inheritance. The prosecutor’s examination after the sidebar conference was designed to get Ms. Worthington to. recount what Robert Todt told her. A new trial on this issue is not warranted.

Todt also believes there was prosecutorial misconduct during the assistant district attorney’s closing argument to the jury. Specifically, Todt contends that the prosecutor’s closing argument impermissibly conveyed to the jury the prosecutor’s personal belief as to Todt’s credibility and guilt. It is true that at one point the assistant district attorney said: ‘This is a man I think you can draw the conclusion ...” N.T. 12/12/80 at 52. Defense counsel’s objection to this expression of opinion was quite properly sustained. We do not believe this remark requires reversal of Todt's conviction.

Todt further argues that the prosecutor was allowed to characterize and stigmatize Todt. The prosecutor stated that Todt himself admitted to lying to cover up his extramarital affairs and that Todt was cold, calculating, callous and arrogant. These comments were within the bounds of the evidence presented. Todt admitted to adultery and lying to conceal adultery; the prosecutor was entitled to use these admissions to argue that Todt had a reason to kill his wife and to attack Todt’s credibility. This portion of the Commonwealth’s closing argument was certainly vigorously presented but it did not so prejudice the jury as to require a new trial.

Nor is a new trial mandated by the prosecutor’s reference to Todt’s defense as a “smokescreen.” It is important to note that it was defense counsel who said, “The Commonwealth really tried—and I hate to use this kind of language. I really can’t think how else to put it—they really blew a lot of smoke at you, character assassination kind of thing____” N.T. 12/12/80 at 37-38. The prosecutor was entitled to refute the argument of the defense and the manner in which he did so did not amount to prosecutorial misconduct. The prosecutor was telling the jury to reject defendant’s “smokescreen” argument and his depiction of the Commonwealth’s case as “character assassination,” and to focus their attention on the question of Todt’s guilt or innocence. We see no prejudicial error in this remark. “Prosecuting attorneys must attempt to meet extravagant, emotional and even distorted arguments of defense counsel in a manner consistent with responsibility as a public prosecutor.” Commonwealth v. Middleton, 269 Pa.Super. 17, 23, 409 A.2d 41, 44 (1979).

Todt also believes that the prosecutor improperly attempted to play on the jury’s sympathy for Loretta Todt, the victim of the crime. The prosecutor said, “Loretta Todt is stuck for as long as she lives with a bullet in the back of her brain. And that’s sad” and “the criminal justice system, in addition to protecting society has to protect those who can’t themselves.” Ñ.T. 12/12/80 at 67-68. Todt urges us to find such comments proscribed by the decision of Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981). In Youngkin, supra, we noted that argument is improper when jurors are asked to place themselves in the unfortunate victim’s position or otherwise encouraged to divert their attention from the evidence in favor of their own sympathies or fears. Id., 285 Pa.Superi- or Ct. at 435, 427 A.2d at 1365. Here, the assistant district attorney described Loretta Todt’s condition as sad, but this does not constitute an effort to distract the jurors from the evidence.

Robert Todt’s fourth issue is:
Was the defendant denied effective assistance of counsel?

Brief for Appellant at 2.

The alleged ineffectiveness of trial counsel consisted of: failure to move for a change of venue or sequestration of the jury; failure to have the Commonwealth’s witnesses sequestered; failure to properly lay a foundation for expert witnesses; failure to object to irrelevant evidence; failure to make various objections to hearsay evidence; failure to call character witnesses and other allegations too numerous to catalog further. Faced as we are with a torrent of minutia, we will address only the colorably meritorious contentions of Robert Todt.

Before ruling on the merits of Todt’s arguments, we repeat the standard of review used to judge claims of ineffectiveness. In Commonwealth v. Watts, 488 Pa. 214, 412 A.2d 474 (1980) the Pennsylvania Supreme Court held:

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.’ (Footnote omitted.) (Emphasis in original.)

Id., 488 Pa. at 217, 412 A.2d at 475-76, quoting, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967).

Our review of the record shows that Robert Todt’s trial counsel minimized the Commonwealth’s case, sharply attacked the testimony of John Chairmonte and established that Robert Todt was candid about his personal life. Given that the events of March 19, 1980 were bizarre and that the Commonwealth’s most important witness had substantial credibility defects we cannot say that trial counsel’s strategy was without a reasonable basis designed to effectuate Todt’s interests.

Todt claims that his trial lawyer was ineffective for failing to request discovery of statements from the Commonwealth’s eye-witnesses. Examination of the record reveals that Todt’s counsel made both formal and informal discovery requests pursuant to Pa.R.Crim.P. 305. Trial counsel was not ineffective; ultimately, he obtained and used the previous statements of eyewitnesses.

Todt’s other significant claim is that his counsel did not call certain character witnesses requested by Todt. Again, a look at the record shows that Todt’s allegation does not support a claim of ineffective assistance of counsel. Several character witnesses were called on Todt’s behalf. For example, Todt’s father testified that his son frequently helped his students. Yet on cross-examination Todt’s father denied knowledge of his son’s extramarital affairs. Under the circumstances of this case, presenting character witnesses was not without risk. The good character evidence given was counterbalanced by the Commonwealth’s ability to describe Robert Todt as a man living a double life, unknown even to his own family and friends. Defense counsel’s choice not to call additional character witnesses had a reasonable basis designed to protect Todt.

As to Todt’s other contentions of ineffectiveness we agree with the judge below, who wrote: “We have not specifically discussed each of defendant’s manifold and minute claims of ineffectiveness. As often stated, defendant is not entitled to and cannot realistically expect to receive a perfect trial but only a fair trial. See, e.g., Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 422 A.2d 1126 (1980)” Slip op. at 30.

Todt’s fifth issue is:

Did the court commit reversible error in permitting the critical hearsay testimony of Edward DePiso?

Brief for Appellant at 2.

According to Todt, the trial court erred in allowing Edward DePiso to testify that in early March 1980, Chairmonte pointed out Todt to DePiso and said that Todt wanted Chairmonte to kill Todt’s wife. At most, this was harmless error. Before Edward DePiso gave the hearsay testimony complained of here, he stated that he saw Chairmonte and Todt drive off and that upon their return Chairmonte possessed a pistol and ammunition that Chairmonte did not have before he left with Todt. Chairmonte testified that appellant hired him to kill Mrs. Todt and despite some inconsistancies, on critical points Chairmonte’s testimony was corroborated, as the lower court noted. Lower ct. op. at 5-8. We determine that this error could not have contributed to the verdict.

Todt’s sixth issue is:

Was the imposition of consecutive sentences for related inchoate crimes violative of section 906 of the Crimes Code which proscribes multiple convictions of related inchoate crimes?

Brief for Appellant at 2.

Todt notes that he was convicted of attempted homicide, criminal solicitation and criminal conspiracy. The sentence imposed for the homicide attempt was five to ten years; the sentence imposed for the criminal solicitation and conspiracy was also five to ten years, to be served consecutive to the first sentence. Todt argues that this sentencing violates 18 Pa.C.S. § 906, which provides: “A person may not be convicted of more than one offense defined by this chapter designed to commit or to culminate in the commission of the same crime.” Todt reasons that because the attempt, the solicitation and the conspiracy all aimed at the same crime—the murder of Loretta Todt—Section 906 precludes his conviction for more than one inchoate crime.

In response, the Commonwealth argues that the crimes of attempted homicide and aggravated assault do not merge and that a separate sentence may be imposed for each conviction. Chairmonte conspired with Todt to commit homicide and committed a separate offense, aggravated assault, when he shot Loretta Todt. According to the Commonwealth, Todt is culpable as an accomplice in the shooting of his wife and is also culpable for attempted murder. Under the Commonwealth’s theory, Todt was properly sentenced because aggravated assault and the inchoate offenses do not merge.

The Commonwealth’s argument fails to take into account that Todt was not convicted of aggravated assault, he was convicted of attempted homicide, conspiracy and solicitation. The relevant statute does not speak in terms of merger but rather prohibits conviction for more than one inchoate offense. It is clear that all Todt’s conduct was designed to culminate in the death of his wife, thus, his conviction of three inchoate offenses was improper under Section 906. See e.g., Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981); Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980); Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Jones, 272 Pa.Super. 444, 416 A.2d 539 (1979).

Therefore, we vacate the judgments of sentence for attempted homicide, criminal conspiracy and solicitation and remand to the trial court for proceedings and resentencing consistent with this opinion. Jurisdiction is relinquished.

SPAETH, J., files a concurring opinion.

SPAETH, Judge,

concurring:

While I agree with, and join in, most of what the majority says, I believe some additional comment regarding Edward DePiso’s testimony is required. The lower court held that the testimony was within the co-conspirator exception to the rule against hearsay evidence. The majority doesn’t discuss this issue, only observing that “[a]t most, [the lower court’s ruling] was harmless error.” At 70. While I agree that the ruling was harmless error, I believe that it is important that we explain why it was error, so that in another case, in which it would not be harmless, the error may be avoided.

Sometime in March, before the shooting, appellant went to see John Chairmonte, who was at the time working on an automobile with a friend, Edward DePiso. Chairmonte stopped his work and went for a ride with appellant in appellant’s pick-up truck. Chairmonte testified that during the ride, appellant gave him a gun and a box of bullets, and told him “[t]hat he wanted a babysitter shot.” N.T. Vol. II at 19. The Commonwealth asked Chairmonte what he told DePiso after appellant dropped him off:

Q. [By the assistant district attorney] Did you talk to Eddie [DePiso] then?
A. Yes.
Q. How long were you gone?
A. I’d say about twenty minutes.
Q. Did you show Eddie the gun?
A. Yes, I did.
Q. What did you tell him?
A. I told him that the guy just dropped it off to me.
Q. Did you say that guy or did you use a name if you remember?
A. I don’t remember.

N.T. Yol. II at 22.

Later the Commonwealth called DePiso, and he testified as follows:

Q. [By the assistant district attorney] Did John [Chairmonte] have the box of shells and the gun to your knowledge before Mr. Todt had arrived in his green truck?
A. No, he didn’t.
Q. Did John say anything to you thereafter?
A. Yes. He said that’s the guy that—
MR. FREEDMAN [defense counsel]: Objected to as to what he said.
MR. RUBENSTEIN [assistant district attorney]: It’s been testified to by John Chairmonte, Your Honor. THE COURT: All right. I’ll permit it. You may answer.
THE WITNESS: John Chairmonte said, “That’s the guy Todt that wants me to bump off his old lady.”

N.T. Yol. IX at 72, 73.

Since DePiso’s testimony of what Chairmonte said was offered for its truth—it had no relevance except as it was true—it was hearsay. The lower court held, however, that the testimony was admissible as within the co-conspirator exception to the rule against hearsay evidence. The majority doesn’t discuss the issue raised by this ruling, only observing that “[a]t most, [the ruling] was harmless error.” At 70. The issue, however, involves an aspect of the co-conspirator exception that our cases do not address, and I believe we should discuss it.

The co-conspirator exception “allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of a conspiracy.” Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981). See also, Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973). This exception extends to “declarations of acts of one conspirator made to third parties in the absence of his co-conspirator ... provided that such declarations were made during the conspiracy and in furtherance of the common design ....” Commonwealth v. Wilson, 394 Pa. 588, 607, 148 A.2d 234, 244 (1959) (citations omitted).

Chairmonte’s statement to DePiso was made “during the conspiracy,” for appellant had just given Chairmonte the gun and bullets, but it was not made “in furtherance” of the conspiracy. Although no Pennsylvania appellate court has explained the “in furtherance” requirement, several federal decisions have. These decisions are pertinent, for Federal Rule of Evidence 801(d)(2)(E) is virtually identical to the Pennsylvania rule; the only difference is that under the particular terminology of the Federal Rule a statement to a co-conspirator is “not hearsay,” rather than being an exception to the rule against hearsay evidence.

Federal Rule of Evidence 801(d)(2)(E) provides:

A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

In United States v. Moore, 522 F.2d 1068 (9th Cir.1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976), the court found that a co-conspirator’s statement to a third party was not in furtherance of the conspiracy because he was not “seeking to induce [the witness] to deal with the conspirators or in any other way to cooperate or assit in achieving the conspirators’ common objectives____ Rather, the statement was, at best, nothing more than [the declarant’s] casual admission of culpability to someone he had individually decided to trust.” Id. at 1077 (citations omitted). In United States v. Eubanks, 591 F.2d 513 (9th Cir.1979) (per curiam), the court stated that “[sufficient evidence had to exist to support an inference that the statements were made in furtherance of the conspiracy, while the conspiracy was in existence....” Id. at 519. The court explained that “mere conversation between co-conspirators” or “merely narrative declarations” are not admissible as they are not in furtherance of the “common objectives of the conspiracy.” Id. at 520. See also, United States v. Fielding, 645 F.2d 719 (9th Cir.1981).

Chairmonte’s statement to DePiso, “That’s the guy Todt who wants me to bump off his old lady,” was not in furtherance of the conspiracy. Nothing indicates that Chairmonte was seeking DePiso’s assistance. Cf Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978) (“Do you know anybody who would bump off her old man for a thousand dollars?”). Chairmonte’s statement was “nothing more than [his] casual admission of culpability to someone he had individually decided to trust.” Chairmonte’s statement was therefore not within the co-conspirator exception, and DePiso’s testimony quoting the statement should not have been admitted.

The question therefore arises whether the lower court’s error in admitting DePiso’s testimony requires a new trial. A new trial will not be granted if the error was harmless. In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), the Supreme Court said that “an error cannot be held harmless error unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a ‘ “reasonable possibility”' that an error ‘ “might have contributed to the conviction,” ’ the error is not harmless.” Id., 476 Pa. at 409, 383 A.2d at 164 (citations omitted). The appellate court must be convinced beyond a reasonable doubt that the error was harmless. Id., 476 Pa. at 406, 383 A.2d at 162.

I am convinced beyond a reasonable doubt that DePiso’s inadmissible hearsay statement did not contribute to appellant’s conviction. Chairmonte himself testified that he was hired by appellant to kill Mrs. Todt. N.T. Vol. II at 40, 46, 47, 53, 60. Despite some inconsistencies, on critical points Chairmonte’s testimony was corroborated. The opinion of the lower court adequately details this corroboration. Slip op. at 5-8. I am satisfied that had DePiso’s statement not been admitted, the jury’s verdict would have been the same.

I concur in the majority’s order remanding the case for resentencing.