author: BECK, Judge: HESTER, Judge,

text:
    472 A.2d 691
    Steven C. BUCK, Appellant v. SCOTT TOWNSHIP, a Municipal Corporation v. Patricia Ann GOTCH. Steven C. BUCK v. SCOTT TOWNSHIP, a Municipal Corporation, Appellant v. Patricia Ann GOTCH.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1983.
    Filed Feb. 24, 1984.
    Petition for Allowance of Appeal Denied May 29, 1984.

      Paul E. Moses, Pittsburgh, for Buck, appellant (at No. 547) and appellee (at No. 554).
    Daniel J. Weis, Pittsburgh, for Scott Tp., appellant (at No. 554) and appellee (at No. 547).
    Before McEWEN, BECK and HESTER, JJ.
   BECK, Judge:

Stephen C. Buck and Scott Township each appeal the order of the Court of Common Pleas, Allegheny County of May 5, 1982 which granted a new trial in Buck’s suit against the township. Buck was injured in June 1978 while riding his motorcycle in Scott Township and he brought two causes of action in trespass: one against the township for negligent failure to erect or replace stop signs or traffic lights at the site of the accident, and one against Patricia Ann Gotch, the driver of the other vehicle. Gotch was joined as additional defendant in the suit against the township.

A jury trial returned a verdict of $89,000 in favor of Buck against the township. The lower court then molded the verdict, reducing it to $44,500 on the basis of the jury’s answers to interrogatories, which found that Buck and the township were each fifty per cent negligent. The jury also found that Gotch was not negligent.

Following the verdict, the township moved for judgment non obstante veredicto and for a new trial, and Buck moved for a new trial restricted to the issue of damages alone, not liability. The lower court denied the motion for the judgment n.o.v. and granted an unrestricted new trial. The township here appeals the denial of the judgment n.o.v., and Buck appeals the grant of the unrestricted new trial.

Initially we note that an order denying a new trial or judgment n.o.v. is interlocutory and nonappealable until it is reduced to judgment and docketed. Pa.R.A.P. 301(c); Brogley v. Chambersburg Engineering Co. v. Jones & Laughlin Steel Corporation, 282 Pa.Super. 562, 424 A.2d 952 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981). However, when a party to an action moves for a judgment n.o.v. and also for a new trial, and the new trial is granted, he is not denied an appeal from the refusal of the judgment n.o.v., which is given independent review. Schroeder Brothers, Inc. v. Sabelli, 156 Pa.Super. 267, 40 A.2d 170 (1944); Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). Jurisdiction over Buck’s appeal from the granting of a new trial is conferred by Pa.R.A.P. 311(a)(5), interlocutory appeals as of right. We therefore proceed to review the appeals of both parties from the same order.

Pennsylvania law allows a court to enter judgment n.o.v. only in the clearest of cases, after the court has reviewed all the evidence which supports the verdict winner and resolves all doubts in that party’s favor. A judgment n.o.v. will be entered only in those cases where no two reasonable persons could fail to agree that the verdict is improper. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980); Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982); McKnight v. City of Philadelphia, 299 Pa.Super. 327, 445 A.2d 778 (1982). We must therefore review all the evidence to determine whether Buck proved or failed to prove any negligence on the part of the township that was causally related to the accident in issue.

Buck sustained severe injuries which left him a paraplegic at the age of twenty-one when his motorcycle collided with Gotch’s automobile near the intersection of Locust and Carothers in Scott Township. Buck was travelling south on Carothers, a route which he did not usually take and with which he was unfamiliar. As Buck approached the Locust Street intersection, which intersects Carothers on the west side of Carothers in a T-intersection, his view of the intersection was partially restricted by cars which were legally parked on the west side of the street up to approximately twenty feet from Locust Street. A stop sign which should have been posted on Locust Street was missing. Gotch, travelling east on Locust, nevertheless stopped at the intersection. She then proceeded slowly into the parking lane of Carothers when she saw Buck and brought her vehicle to another stop. Buck began braking when he saw Gotch, at approximately 150 to 180 feet from her car. R. 109a. At approximately 70 feet from her car he determined that he would suffer less harm if he laid his motorcycle on its side, to avoid a head-on collision in an upright position. When he put the motorcycle on its side, he lost control of it and skidded into Gotch, R. 100a-112a. Buck admits that the conduct of Gotch and the absence of the Locust Street stop sign did not cause the accident. He attributes the accident to the township’s allegedly negligent failure to warn those on Carothers of the Locust Street intersection either by signs, traffic light, or painted cross-walk.

At trial it was adduced that Carothers was marked with signs indicating a twenty-five mile per hour speed limit, R. 67a-68a, and bus stop signs. R. 72a-73a. Buck testified that his speed was approximately twenty-five miles per hour. R. 105a-106a.

The township introduced evidence that one month before the accident Buck had received an estimate from Washington Pittsburgh Cycle which indicated that Buck’s motorcycle required the replacement of left and right forkears (part of the steering mechanism) and a brake pedal. R. 125a-126a.

A traffic consultant who studied the scene of the accident testified that in his opinion safety requirements for an area with a twenty-five mile per hour speed limit required 100 feet visibility for traffic intersection, T. 236a, and that the Carothers-Locust intersection lacked indicia of an intersection due to the absence of signals, cross-walks, and street hardware. R. 242a-246a. The same traffic consultant testified that if Buck had been travelling at twenty-five miles per hour, and if he had begun to brake at a distance of 180 feet from Gotch as he testified, that Buck could have safely come to a complete stop without any skidding or collision. R. 275a.

We conclude that a judgment n.o.v. in the instant case was properly denied by the lower court. Taking all the evidence which supports Buck, and giving him the benefit of all reasonable inferences therefrom, there is no clear case absolutely absolving the township from negligence. The testimony of the traffic consultant raised factual issues concerning the township’s duty of care toward motorists at this intersection which precludes the granting of judgment n.o.v.

The township also moved for a new trial on the basis of its motion for judgment n.o.v. and on the basis of errors in the court’s charge. The motion for judgment n.o.v. included averments, inter alia, that Buck failed to prove that the township was negligent or that any negligence on the part of the township was the proximate cause of Buck’s injuries, and that Buck himself was contributorily negligent as a matter of law. The lower court granted the motion for a new trial for these reasons.

On appeal Buck argues that the court erred in granting an unrestricted new trial because the opinion stated that a new trial was granted because “the verdict is against the weight of the evidence and such as would shock one’s sense of justice.” Opinion, at 7. Buck maintains that a new trial can be granted only on the basis of specific assignments of error, not boilerplate reasons, and that the grant of a new trial is therefore in violation of the law, citing Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). The question for the court in Carnicelli, however, was this: “When a party makes only boilerplate assignments of error, may the Court sua sponte consider, as though within those assignments, specific assignments of error that might have been made but were not made?” at 289 Pa.Superior Ct. 429, 433 A.2d 880. Carnicelli held that an appellate court could not consider specific assignments of error that were not made. We do not find that Carnicelli governs the instant case. Here, Scott Township did not rely on boilerplate exceptions and in fact did assign specific errors, and the lower court responded in the township’s favor. In appellate review, our focus is on assignments of error made by the parties, not general statements in the opinion of the lower court.

First, the court held that Buck failed to prove negligence on the part of the township on the basis of the traffic consultant’s testimony, and that Buck’s ignorance of the intersection did not prove that the township was causally responsible for the accident. Moreover, the lower court held that Buck’s own testimony established his contributory negligence as a matter of law, in failing to have his vehicle under control and not being able to stop safely after seeing Gotch’s vehicle. All of these points were raised in the township’s post-trial motions, and Carnicelli is therefore not controlling.

The grant of a new trial is within the sound discretion of the trial judge and will not be reversed on appeal absent a showing of palpable abuse of discretion or error of law. Commonwealth Department of Transportation v. Nemiroff, 42 Pa.Commw. 478, 401 A.2d 10 (1979); Carnicelli, supra. A trial judge does not sit as a thirteenth juror, substituting his judgment for that of the jury, but it is his duty to review the entire record and if he concludes that a serious injustice has been done, he should grant a new trial. The Superior Court will reverse such a ruling only if it concludes, after reviewing all the evidence, that the trial court acted capriciously or abused its discretion. Lamb v. Gibson, 274 Pa.Super. 7, 417 A.2d 1224 (1980); Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). It is correct to grant a new trial when the verdict is so contrary to the evidence as to shock one’s sense of justice, and a new trial is required to correct the situation. Morgan v. Philadelphia Electric Co., 299 Pa.Super. 545, 445 A.2d 1263 (1982); Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981); Yandric v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981).

Our review of the record leads us to conclude that the trial court did not act capriciously in deciding that the instant verdict shocked one’s sense of justice, and that the trial court committed no error of law.

Buck’s own witness, the traffic consultant, testified that he was unable to say that traffic signals were required at the intersection of Carothers and Locust in order to satisfy local warranties and/or the requirements of Penn-DOT. R. 263-4a. Although Buck testified that he was going at twenty-five miles per hour, the traffic consultant testified that someone on a motorcycle travelling at twenty-five miles per hour (the speed limit at the site) would be able to come to a complete stop without skidding in less than 180 feet, R. 275a; in fact such a person should be able to stop in approximately sixty feet. R. 276a. Two other witnesses testified that Buck was travelling at a speed well beyond the legal limit. One said that Buck was going at about forty to fifty miles per hour, R. 403, and that he did not have his vehicle under control, R. 404a; the other eyewitness put Buck’s speed at fifty to sixty miles per hour. R. 430a. We find no abuse of discretion in the lower court’s conclusion that the verdict was against the weight of the evidence and that a new trial, not restricted to the issue of damages, should be granted. We therefore do not reach Buck’s claims of error relating to the award of damages.

Order affirmed.

HESTER, J., filed dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. My examination of the record has led me to conclude that the Motion of the Township for Judgment N.O.Y. should have been granted. There was no proof that the conduct of the Township was causally responsible for the accident. The issue of the Township’s negligence should not have been submitted to the jury. I therefore am constrained to dissent.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    472 A.2d 695
    COMMONWEALTH of Pennsylvania, Appellant, v. Kyle BEDLEY.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed March 2, 1984.

      Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Aaron Charles Finestone, Philadelphia, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from a judgment of sentence for robbery and criminal conspiracy. On appellee’s plea of guilty, the court imposed sentence of 12 to 24 months imprisonment, to be followed by four years probation with psychiatric counseling. When requested by the Commonwealth to state its reasons for the sentence, the court replied that it was “follow[ing] the presentence report recommendation” and “the legislative mandates as I interpret them____ That’s the minimal allowable sentence____” The Commonwealth argues that this was an inadequate, and inaccurate, statement of reasons. We agree, and therefore vacate the judgment of sentence and remand for resentencing.

The charges were that on February 21, 1981, appellee and another male grabbed 75 year old Claude Dundore, knocked him to the ground, bruising his face and breaking his glasses, and tried to take his wallet. Appellee, by pleading guilty, admitted these facts. The Commonwealth argues that since appellee had been convicted of another robbery, N.T. Sentencing at 6, he should have been sentenced to at least 4 to 8 years imprisonment, pursuant to Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319, 42 Pa.C.S.A. § 2155 (effective January 1,1979), which provided that “[u]ntil sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ... become effective ... when any person is convicted [of certain violent crimes, including robbery], and when that person has been previously convicted [of any such violent crimes] ... the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.” The Act further provided, that “where a court sentences [such] a person ... to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence,” 42 Pa.C.S.A. § 2155(b), and for “appeal as of right” by the defendant or the Commonwealth, 42 Pa.C.S.A. § 2155(c).

In this case, when requested by the Commonwealth to state its reasons for sentencing appellee to less than four years imprisonment, the court responded:

I have indicated that I am unaware of the statute regarding that [the requirement that the court state its reasons for a sentence of less than four years imprisonment]. I follow the presentence report recommendation. I follow the legislative mandates as I interpret them regarding this crime. That’s the minimal allowable sentence as I understood the legislative guidelines for sentencing under this charge.
N.T. Sentencing at 13-14.

The Commonwealth’s motion to modify sentence was denied without hearing.

In its opinion filed in response to the Commonwealth’s appeal, the court again acknowledges that “it was unaware of the provision setting as a guideline for sentencing a period of incarceration of four to eight years.” Slip op. at 4. “However”, the court says, “the record reveals that there are sufficient reasons for sentencing outside that guideline,” id. at 5, and in its opinion the court explains what in its view those reasons are, id. at 4. This opinion, however, cannot be regarded, either as the “contemporaneous written statement of the reason or reasons for the sentence” required by -42 Pa.C.S.A. § 2155(b), or as in compliance with Commonwealth v. Riggins, 474 Pa. 115, 122, 377 A.2d 140, 143 (1977) {“[wjhen a trial court imposes judgment of sentence, its reasons for the imposition of sentence should appear on the record”) (emphasis added).

The judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.

      . The sentencing was on January 21, 1982. The interim guidelines provided by the Act of November 26, 1978, supra, 42 Pa.C.S.A. § 2155, have been superseded by the Pennsylvania Commission on Sentencing guidelines, which became effective on July 22, 1982, 204 Pa.Code Ch. 303, and see the Act of October 5, 1980, P.L. 693, No. 142, 42 Pa.C.S.A. § 2155. The Act of March 8, 1982, P.L. 169, No. 54, 42 Pa.C.S.A. § 9714, provides a mandatory minimum sentence of five years total confinement for repeat offenders of violent crimes, and for appeal by the Commonwealth.


author: CAVANAUGH, Judge:

text:
    472 A.2d 697
    COMMONWEALTH of Pennsylvania v. Darrell TISDAL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1981.
    Filed March 2, 1984.

      Barnaby C. Wittels, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CAVANAUGH and WATKINS, JJ.

      . Originally Judge Van der Voort was a member of this panel. Upon his retirement from the Court, President Judge Cercone assigned himself as a member of the panel.

   CAVANAUGH, Judge:

The crimes involved in this case occurred on June 20, 1978. The appellant was tried without a jury and found guilty of attempted rape, burglary and possession of an instrument of a crime. Post-trial motions were denied and judgment of sentence was entered. The appellant appealed to this Court.

Appellant contends that the court below erred in denying his motion to prohibit the prosecution from cross-examining his proposed character witnesses as to another arrest of the appellant on October 6, 1977, on charges of loitering and prowling. The charges were subsequently withdrawn. We agree that this was error which resulted in such prejudice to the appellant that a new trial must be granted. In Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), decided while the appeal in this case was pending, our Supreme Court rejected the prior rule that allowed a prosecutor to cross-examine witnesses as to mere arrests of the accused. In Commonwealth v. Cabeza, 300 Pa.Super. 483, 446 A.2d 958 (1982) this Court held that the rule in Commonwealth v. Scott that prohibits the Commonwealth from cross-examining defense character witnesses concerning a defendant’s prior arrests not resulting in convictions was to be applied retroactively to cases on appeal at the time of the Scott decision. In Cabeza the alleged offense occurred on February 25, 1979 and the case was on appeal when the Scott decision was rendered. The court in Cabeza ordered a new trial.

The Supreme Court decided in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) that the rule announced in Commonwealth v. Scott, supra shall be applied retroactively to cases pending on appeal at the time of the Scott decision. The Supreme Court stated at 503 Pa. page 233, 469 A.2d page 148:

Therefore, we hold that where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

Opinion by Larsen, J., Dissenting Opinions by Justices Nix, (now Chief Justice) McDermott and Hutchinson.

The decision by the Supreme Court in Commonwealth v. Cabeza, supra, applying the rule of Commonwealth v. Scott retroactively to cases pending on appeal when Scott was decided is controlling.

Judgment of sentence reversed and case remanded for new trial.

      . The Commonwealth argues in its brief that the lower court vacated the sentence on December 3, 1979 and then reinstated the sentence on January 8, 1980, that appellant did not file a new notice of appeal after the sentence was reimposed, and that this failure to file a new notice of appeal requires that the appeal be quashed. We have examined the official record (including the certified copy of the docket entries), and we have found no petition for reconsideration of sentence, and no order vacating the sentence. Pa.R.A.P. 1701(a) provides that a lower court may no longer proceed in a matter once an appeal is taken, except as otherwise provided in the Rules. Rule 1701(b)(3) provides that the lower court may grant reconsideration if an application for reconsideration is filed in the lower court and if an order “expressly granting reconsideration" is filed within the appeal time. Neither one of these requirements seems to have been complied with. We therefore treat the hearing of January 8, 1980 and the resulting reinstatement of sentence as a nullity. We find that the notice of appeal was taken within the required time from the sentence imposed on November 15, 1979.

      . In Commonwealth v. Glasco, 298 Pa.Super. 189, 444 A.2d 724 (1982) and Commonwealth v. Hankerson, 298 Pa.Super. 194, 444 A.2d 727 (1982) this Court also applied the rule in Commonwealth v. Scott, supra, retroactively.


author: WIEAND, Judge:

text:
    472 A.2d 698
    COMMONWEALTH of Pennsylvania v. James W. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1983.
    Filed March 2, 1984.

      Judith A. Calkin, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

James Miller was tried by jury and convicted of murder in the first degree. He was sentenced to serve a term of life imprisonment on January 2, 1970. The judgment of sentence was affirmed by the Supreme Court. See: Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971).

Miller then filed a pro se petition under the Post Conviction Hearing Act. Counsel was appointed, but he did nothing, and the petition was dismissed without hearing. For our purposes, therefore, the proceeding must be deemed uncounseled. See: Commonwealth v. Barton, 312 Pa.Super. 176, 180, 458 A.2d 571, 573-574 (1983); Commonwealth v. Ollie, 304 Pa.Super. 505, 508-509, 450 A.2d 1026, 1027-1028 (1982).

Miller next filed a pro se petition labelled “Petition for Habeas Corpus ad Testificandum.” This was denied without hearing and without the appointment of counsel. The denial was affirmed by the Supreme Court without opinion in Commonwealth v. Miller, 469 Pa. 370, 365 A.2d 1251 (1976).

A third petition was filed and was followed by the appointment of counsel and the filing of an amended petition. The P.C.H.A. court dismissed the amended petition without a hearing, however, because, in its opinion, all issues had been waived. Again the Supreme Court affirmed without opinion. Commonwealth v. Miller, 474 Pa. 170, 377 A.2d 1268 (1977).

Finally, Miller filed a fourth P.C.H.A. petition in the Court of Common Pleas of Dauphin County. Although the petition contained a request for the appointment of counsel, the trial court dismissed the petition without appointment of counsel and without a hearing. On appeal to this Court we directed that counsel be appointed. Counsel was appointed and now requests that we remand to allow the filing of an amended petition. We are constrained to do so.

Pa.R.Crim.P. 1504 provides that post conviction petitions may be dismissed summarily without the appointment of counsel “when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.” See also: Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981); Commonwealth v. Hicks, 321 Pa.Super. 545, 468 A.2d 1123 (1983); Commonwealth v. Nole, 319 Pa.Super. 593, 466 A.2d 703 (1983); Commonwealth v. O’Nealel, 315 Pa.Super. 1, 461 A.2d 318 (1983); Commonwealth v. Barton, supra. Moreover, a court cannot dismiss a petition summarily without appointment of counsel on grounds that the issues sought to be raised have been waived. See: Commonwealth v. Minnick, 436 Pa. 42, 45, 258 A.2d 515, 516-517 (1969); Commonwealth v. Wallace, 322 Pa.Super. 157, 159, 469 A.2d 230, 231 (1983); Commonwealth v. Mawson, 306 Pa.Super. 22, 23, 451 A.2d 1371, 1372 (1982).

In the uncounseled petition presently subject to review, appellant has made numerous averments that trial counsel was ineffective. Some of the same averments appeared in one or more prior petitions. However, none was ever resolved on its merits in counseled proceedings. On the only occasion when appellant was represented by counsel, the trial court dismissed his petition on grounds of waiver. Since the court did not rule on the merits of the issues raised therein, none was finally determined within the meaning of Rule 1504. See: Commonwealth v. McNeil, 497 Pa. 187, 196 n. 3, 439 A.2d 664, 668 n. 3 (1981).

Inasmuch as the issues raised in appellant’s petition for post conviction relief have not been finally determined in prior, counseled proceedings, the trial court erred in dismissing the petition summarily without appointing counsel as appellant requested.

Reversed and remanded. Upon remand, appellant’s counsel shall be permitted to file an amended P.C.H.A. petition. Jurisdiction is not retained meanwhile.

      . This was followed by two unsuccessful petitions for habeas corpus in the federal courts.

      . These averments of ineffective assistance include the following:
      (1) Counsel did not call alibi and other witnesses.
      (2) Counsel did not object to the introduction of inflammatory photographs.
      (3) Counsel did not object to improper remarks by the trial judge.
      (4) Counsel had inadequate time to prepare.
      (5) Counsel did not attempt to argue a lesser degree of murder.
      (6) Counsel did not object to an improper identification procedure.


author: JOHNSON, Judge:

text:
    472 A.2d 701
    Joseph J. NAVARRO v. OHIO CASUALTY INSURANCE COMPANY and the Government Employees Insurance Company. Appeal of The GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed March 2, 1984.

      Richard L. Kearns, Harrisburg, for appellant.
    Timothy John O’Connell and F. Shipman, Harrisburg, for appellees.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant Government Employees Insurance Company (GEICO) brings this appeal from the order of December 9, 1982 requiring GEICO to pay appellee/plaintiff Joseph J. Navarro $15,000 plus 18% interest in work loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act.

Joseph J. Navarro was injured in a collision which occurred on October 22, 1977 while a passenger in a vehicle driven and owned by Jose Ramirez. On that date, Ramirez had in full force and effect an automobile insurance policy with GEICO. Also in effect on that date was a corporate fleet automobile insurance policy between Joseph J. Navarro, Inc. (a corporation wholly owned by plaintiff Joseph J. Navarro and his wife) and Ohio Casualty Insurance Company (Ohio Casualty). One of the vehicles listed as covered in this fleet policy was registered to Navarro individually and another registered to Navarro and his wife individually.

Plaintiff Navarro instituted suit against each insurance company separately after each refused his demands for work loss benefits. Following consolidation of the actions and a motion by plaintiff for partial summary judgment, the trial court entered an order on July 1, 1980 granting partial summary judgment as to liability against GEICO and denying the same as against Ohio Casualty. GEICO’s appeal from that order was quashed by this court as interlocutory. Navarro v. Ohio Casualty Insurance Company, 295 Pa. Super. 151, 441 A.2d 394 (1982). On December 9, 1982, following a hearing, the trial court ordered GEICO to pay work loss benefits to plaintiff.

The issue presented is whether the owner of a vehicle who obtains automobile insurance in the name of his solely-owned corporation instead of in his own name, is an “insured” under the No-fault Act.

GEICO initially argues that the insurance contract between Navarro and Ohio Casualty should be reformed to show the name of the insured as Navarro individually where a mutual mistake of facts exists as to the correct insured.

GEICO argues that through some breakdown in communication, Navarro and the Ohio Casualty agent failed to realize that some of the vehicles were individually owned and as such, not properly covered by the fleet policy. GEICO would have this court reform the contract so that it covers the vehicles owned by Navarro (and his wife) individually, as an individual policy. This we cannot do.

A contract may be reformed where mutual mistaken belief, shared by the parties with respect to a material aspect of the agreement, prevents it from conforming to the true intention of the parties. Philadelphia Electric Co. v. Borough of Lansdale, 283 Pa.Super. 378, 424 A.2d 514 (1981). However, in order to be entitled to such relief, a person must be either a party to the instrument or in privity with said parties. Lachner v. Swanson, 251 Pa.Super. 561, 380 A.2d 922 (1977); see also 66 Am.Jur.2d, Reformation of Instruments, § 60. In the instant case, GEICO is neither. We therefore find no merit to this argument.

GEICO argues further that Navarro was an “insured” under the No-fault Act in the Ohio Casualty fleet policy and therefore, under section 204(a)(2) of the Act, entitled to receive benefits from Ohio Casualty.

Section 204(a) of the Act sets forth:

§ 1009.204 Source of basic restoration benefits
(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.
Insured is defined in section 103 as:
“Insured” means:
(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative or a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
(ii) in residence in the same household with a named insured.
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

As an individual, Navarro was not insured. The Ohio Casualty policy covered only the corporation. GEICO desires that we rewrite the contract between Navarro and Ohio Casualty. Where, as here, the policy is clear and unambiguous, it is not the function of the court to rewrite a policy or give its terms a construction in conflict with their plain meaning. Garber v. Travelers Ins. Co., 280 Pa.Super. 323, 421 A.2d 744 (1980).

Navarro’s policy clearly is limited in its coverage to the corporation, rather than Navarro individually. Hence, section 204(a)(3) is the proper subsection under the facts of the instant case. As GEICO covered the vehicle involved, it is liable for Navarro’s work loss. See Singer v. Nationwide Ins. Co., 274 Pa.Super. 359, 418 A.2d 446 (1980).

Finally, GEICO argues that if we do not construe the Ohio Casualty insurance policy as covering Navarro individually, then he is in violation of section 601 of the Act, as being uninsured, thereby rewarding a party for failing to insure their vehicle. However, in Hayes v. Erie Ins. Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978), rev’d in part and aff’d in part, 493 Pa. 150, 425 A.2d 419 (1981), we stated that such an argument “should be directed to the Legislature.”

Order affirmed.

      . 40 P.S. § 1009.101 et seq.

      . Neither Navarro nor Ohio Casualty have requested reformation.


text:
    472 A.2d 703
    Ruth E. DALEY, Jacob E. Hornbaker, Melvin E. Hornbaker, Dorothy M. Senseny and Clarence Roy Hornbaker, Administrators of the Estate of Melvin Moody Hornbaker, deceased and Administrators of the Estate of Mary Jane Hornbaker, Deceased, Appellants, v. David E. HORNBAKER, Sr., and Debra K. Hornbaker, his wife.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed March 2, 1984.

      Gregory L. Kiersz, Waynesboro, for appellants.
    Dennis Anson Zeger, Mercersburg, for appellees.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellants, administrators of the estates of Melvin Moody Hornbaker and Mary Jane Hornbaker, appeal from the judgment entered June 17, 1983. Said judgment was based on the order of March 4, 1983 dismissing their exceptions to the decree nisi of September 27, 1982.

The instant equity action was based on a transfer of 73 acres of real property from Mary Jane Hornbaker to her grandson and his wife, appellees. The property was owned by Mary Jane and Melvin Moody Hornbaker, husband and wife, as tenants by the entireties. The deed transferring the property, prepared by appellee David E. Hornbaker, was executed on February 20, 1981 during Mary Jane Hornbaker’s hospitalization. It was stipulated pretrial that Mary Jane Hornbaker forged the signature of her husband Melvin on the deed. Melvin died the following day. Mary Jane died March 7, 1981.

Appellants filed their equity complaint August 11, 1981 seeking, inter alia, that the said deed be declared null and void and the property be conveyed back to the estate of Mary Jane Hornbaker. The trial court denied relief on September 27, 1982 and appellants’ exceptions were subsequently denied as well.

Appellants raise three issues on appeal, whether the trial court erred (1) in disregarding admissions of fact and evidence concerning undue influence and a confidential relationship between appellees and the deceased grantor, (2) in failing to consider equitable principles of law and public policy concerning this conveyance of property held as tenants by the entireties, and (3) in failing to find that appellees waived the provisions of the Dead Man’s Act by participating in pretrial discovery. Finding no error, we affirm.

We note initially that our scope of appellate review of a decree in equity is particularly limited and said decree will not be disturbed unless unsupported by the evidence or demonstrably capricious. Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982).

We need only address appellants’ second issue, as it is clear that appellants are estopped from asserting the invalidity of the conveyance in the instant case. Appellants argue that the trial court erred in failing to consider equitable principles of law and public policy making the conveyance by Mary Jane Hornbaker void. Specifically, appellants allege that the trial court disregarded the fact that the conveyance involved entireties property. Our review of the record, including the opinions of the trial court dated September 27, 1982 and March 7, 1983, convinces us that the trial court did not err.

Mary Jane and Melvin Moody Hornbaker held the real property in question as tenants by the entireties. The essential characteristic of an entireties estate is that each spouse is seized “per tout et non per my”, meaning of the whole or the entirety and not of a share, moiety or divisible part. In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945); Gasner v. Pierce, 286 Pa. 529, 134 A. 494 (1926). As each spouse owns the entire estate, upon the death of one spouse, the survivor continues to hold not as a new estate, but as a continuation of the previous estate. Porobenski v. Am. Alliance Ins. Co., 317 Pa. 410, 176 A. 205 (1935). An estate by the entireties is incapable of dissolution by one of the owners without the consent of the other, and neither spouse alone may alienate his or her interest in the property during the other’s lifetime. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Thees v. Prudential Ins. Co., 325 Pa. 465, 190 A. 895 (1937); Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979).

However, despite this well-settled rule, appellants are estopped from denying the validity of the deed. A grantor is estopped to assert anything in derogation of his deed, as against grantee. General Contract Purchase Corp. v. Bitomski, 102 Pa.Super. 266, 156 A. 727 (1931); 31 C.J.S. Estoppel § 13; 14 P.L.E. Estoppel § 3. See also Jordan v. Chambers, 226 Pa. 573, 75 A. 956 (1910). This doctrine of estoppel by deed applies as well to the grantor’s devisees, executors and other successors. See Grossman v. Hill, 384 Pa. 590, 122 A.2d 69 (1956). Appellants, as administrators of Mary Jane Hornbaker’s estate, clearly fall into this category as successors to the interests of Mary Jane Hornbaker. See 31 C.J.S. Estoppel § 13; Council v. Pitt, 272 N.C. 222, 158 S.E.2d 34 (1967) (where spouse making sole conveyance of entireties property survives other spouse, grantee acquires title by estoppel and those claiming under surviving spouse as heirs at law are es-topped to deny validity of grantee’s title).

Also, an estate or title subsequently acquired by the grantor who conveys under warranty inures to the benefit of the grantee. Jordan v. Chambers, supra; 31 C.J.S. Estoppel § 21; 14 P.L.E. Estoppel § 7. In the instant case, the deed conveyed was by general warranty, thereby making this principle applicable. This rule applies equally whether the party assuming to convey title acted under an honest mistake or committed a fraud. 31 C.J.S. Estoppel § 21; Columbian Carbon Co. v. Right, 207 Md. 203, 114 A.2d 28 (1955) (lease agreement).

In Thees v. Prudential Ins. Co., supra, it was held that the husband, whose name was forged on a deed to real property allegedly conveying entireties property, was not estopped to establish the forgery and void the conveyance executed by his wife and the grantee. That situation is distinguishable from the instant case for two reasons. First, the death of Melvin Moody Hornbaker extinguished any and all rights he held in the conveyed property as tenant by the entireties. Although he certainly would have been entitled to bring such an action prior to this death, appellants as administrators of his estate have no interest in the real property, as even if the conveyance is deemed void, Melvin’s death relinquished all his rights in the property. Secondly, appellants as administrators of the estate of Mary Jane Hornbaker, as representatives of her interests, are barred by estoppel from denying appellees’ title in the property. See Council v. Pitt, supra and Meachem v. Boyce, 35 N.C.App. 506, 241 S.E.2d 880 (1978) (during coverture, spouse making conveyance of entireties property not estopped to deny its validity, but when restraint on coverture removed by death or divorce, estoppel principles are triggered).

We are aware that Mary Jane Hornbaker did not “subsequently obtain” good title to the property upon the death of her husband, but merely was released from any restrictions concerning her alienation or encumbering the said property. See Porobenski v. Am. Alliance Ins. Co., supra. However, we believe the after-acquired title estoppel principles set forth supra are properly applied to the instant case.

Because appellants were barred by estoppel from denying the validity of appellees’ title pursuant to the deed dated February 20, 1981, we need not discuss appellants’ remaining issues.

Judgment affirmed.

      . We note that appellants, as part of this second argument, have not specifically raised any public policy issue, nor any equitable principle of law other than the rules concerning the transfer of entireties property.

      . An exception to this rule exists where one spouse appropriates entireties property for his or her own use, to the detriment of the other spouse. The institution of an action for partition by the excluded spouse may revoke the estate, by virtue of the fiction that such appropriation is an offer of an agreement to destroy the estate by the appropriating spouse which is accepted by the excluded spouse by the institution of the action. Backus v. Backus, 464 Pa. 380, 346 A.2d 790 (1975); Gray v. Gray, 275 Pa.Super. 131, 418 A.2d 646 (1980). However, no action was instituted by Melvin Moody Hornbaker in the instant case.

      . Appellants in the instant case allege the transaction was fraudulent because of the forged signature of Melvin Moody Hornbaker.


author: BROSKY, Judge:

text:
    472 A.2d 706
    Harvey MINICH, individually & Harvey Minich, trading & doing business as Nottingham Heating & Roofing Co., Appellant, v. CITY OF SHARON, Sharon Redevelopment Authority, Walter H. Mallorie and Eleanor Fiscus.
    Superior Court of Pennsylvania.
    Submitted March 29, 1983.
    Filed March 9, 1984.

      Norman Joseph Barilla, New Castle, for appellant.
    William D. Irwin, Sharon, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from the grant of a counterclaim in an action for replevin. Appellant claims that the court improperly considered a counterclaim not secured by a lien on the property. While appellant is correct in his statement of the law, he has waived his argument through failure to file exceptions. Judgment is, therefore, affirmed.

The relevant procedural history can be briefly summarized.

Verdict 9/20/79

Notice of Appeal 10/24/79

Judgment 10/26/79

Notice of Appeal 11/14/79

The first item of note here is that, at the time of the 10/24 Notice of Appeal, no judgment had been entered, only a verdict. Our appellate court’s jurisdiction is strictly limited by statute and is defined by the final order doctrine. 42 Pa.C.S.A. § 742; Pa.R.A.P. 341 and 105(b). Absent entry of judgment, a verdict is not a final order. See Straw v. Stands, 426 Pa. 81, 231 A.2d 144 (1967). From that 10/24 Notice of Appeal this Court did not, therefore, have jurisdiction, due to the absence of a judgment.

However, once that judgment is entered, as it was in this case, our jurisdiction is perfected. The Rules of Appellate Procedure provide for a legal fiction — the Notice of Appeal relates forward to the day of the entry of judgment.

... A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.

Pa.R.A.P. 905(a).

Consequently, we have jurisdiction over this case.

The instant action, brought by appellant, was in replevin. Appellee filed a counterclaim. It is from the granting of that counterclaim that this appeal is brought.

The fatal waiver occurred when appellant failed to file exceptions “within ten (10) days after notice of the filing of the decision.” Pa.R.Civ.P. 1038(d). Indeed, the record does not reveal that exceptions were ever filed. “Matters not covered by exceptions are deemed waived...” Id.

Accordingly, we have no choice but to affirm the trial court. Judgment affirmed.

      . This rule of civil procedure, normally one applying to actions in assumpsit, is made applicable to actions in replevin by Pa.R.Civ.P. 1071.


author: LIPEZ, Judge: SPAETH, President Judge,

text:
    472 A.2d 708
    Cecelia LOGAN, Appellant, v. Patricia STELMACH.
    Superior Court of Pennsylvania.
    Submitted Oct. 3, 1983.
    Filed March 9, 1984.

      David F. Binder, Philadelphia, for appellant.
    John J. Hart, Sellersville, for appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   LIPEZ, Judge:

Plaintiff in this negligence action obtained a judgment for $22,500. Plaintiff has taken this appeal, requesting a new trial on damages only on the grounds that: (1) the verdict was inadequate; (2) the amount of the verdict was against the weight of the evidence; and (3) the court below erred by instructing the jury not to consider income tax consequences in their verdict. Because we agree with plaintiffs third contention, we vacate the judgment and grant a new trial on damages only, and there is no need to consider the first two issues.

Defendant’s only point for charge was granted by the trial judge, who instructed the jury in these words: “The award to the Plaintiff will not be subject to Federal Income Taxes and you should neither add nor subtract taxes in fixing the amount of the award.” In Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980), Justice Kauffman’s opinion for a unanimous court stated:

The Superior Court further held that the trial court erroneously refused appellee’s request to instruct the jury that an award would not be subject to federal income tax. We disagree.
The law of Pennsylvania plainly is that income tax consequences should not be considered by the jury. In Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530, 538, 190 A.2d 293, 298 (1963), we noted:
The majority rule in the United States is that in fixing damages for the determination of decedent’s earning capacity, the income tax consequences of the matter should not be taken into consideration ____ This, in our opinion, is based upon sound legal reasoning and is now advanced as the rule to be followed in Pennsylvania.
Income tax as it relates to damages should be mentioned neither in argument nor in jury instructions. The trial court correctly refused appellee’s request.

Id., 491 Pa. at 546-47, 421 A.2d at 680.

Defendant contends that because the Supreme Court’s decision in Gradel v. Inouye, supra, did not come down until after the trial in this case, the instruction to the jury was in accord with the law at the time of trial. Defendant argues that the law at the time of trial was to be determined by the plurality opinion announcing the judgment of this court in Gradel v. Inouye, 252 Pa.Super.Ct. 392, 410-12, 381 A.2d 975, 984-85 (1977). That opinion discussed four issues, agreeing with the lower court on the first issue, but disagreeing on the second, third and fourth issues. Each of the last three issues appears to provide an independent basis for reversal, in the view of two-member plurality. It was the fourth issue which involved the jury instruction on taxability of the award.

Defendant points out that the three dissenting judges of this court stated only that they dissented on the second issue. 252 Pa.Super.Ct. at 413, 381 A.2d at 985. Defendant argues that because the three dissenting judges did not explicitly disagree with the plurality on the fourth issue, it must be inferred that they agreed with the plurality. Adding the votes of the three dissenting judges to those of the two-member plurality, defendant asserts that there was at least a five-member majority for the proposition that it was error to refuse to instruct the jury on the non-taxability of the award. However, if the three dissenters had agreed with the plurality on this issue, they should have joined in the grant of a new trial, and their votes would have indicated their concurrence with this result. Since there was no such indication, the dissenters’ omission of any reference to the issue cannot be construed as agreement with the position of the plurality opinion. Since the majority of the participating judges did not take this position, no binding precedent was created. Commonwealth v. Davenport, 462 Pa. 543, 559 n. 3, 342 A.2d 67, 75 n. 3 (1975).

Defendant also argues that if the trial judge’s instruction was error, it was harmless. In support of this contention, defendant adopts the following reasoning from the opinion of the court below:

The error then, if any, was in mentioning the subject at all. We note that Mr. Justice Kauffman in Gradel now states that the subject as it relates to damages "... should not be mentioned either in argument or in jury instructions.” In our view, although we now know that the subject should not be mentioned in jury instructions, because we told the jury that it should “neither add nor subtract taxes”, we do not perceive that our statement as to the law necessitates a new trial.

In informing the jury that they should “neither add nor subtract taxes,” the instruction of the court below did not differ from the instruction to the jury in Gradel: “If you make an award to plaintiff, the award will not be subject to Federal Income Taxes and you should neither add nor subtract taxes in fixing the amount of any award.” 252 Pa.Super.Ct. at 410, 381 A.2d at 984. In both Gradel and this case, the instruction not to add or subtract taxes is obviously intended to tell the jury how the immediately preceding phrase, “the award will not be subject to Federal Income Taxes,” should be applied in computing the award. Thus, telling the jury they “should neither add nor subtract taxes” reinforces the error, rather than rendering it harmless.

Finally, defendant maintains that the Supreme Court’s decision in Gradel should not be applied “retroactively”, since it changed the law. From the portion of the unanimous Supreme Court opinion in Gradel dealing with this issue, which we have quoted above in full, it is clear that the Supreme Court did not believe it was stating a new rule, but simply the inevitable consequence of the decision seventeen years earlier in Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., supra. Since none of defendant’s arguments has merit, we must reverse.

Order reversed, and a new trial on damages only is granted. Jurisdiction is relinquished.

SPAETH, President Judge, files concurring statement.

SPAETH, President Judge,

concurring:

While I concur in the result reached by the majority, I write separately because my analysis is somewhat different.

I agree that the Supreme Court’s language in Gradel indicates that the Court did not consider that it was changing the law, and that its decision must therefore be applied retroactively — not only prospectively. See also Gradel v. Inouye, 252 Pa.Super. 392, 412, 381 A.2d 975, 985 (1977) (in holding that trial court erred in refusing jury instruction, plurality stated, “However, in view of the fact that this ruling is a departure from previous practice, it should not be regarded as mandatory in any cases tried before this date.”). Given that the Supreme Court’s decision in Gradel is to be applied retroactively, it doesn’t matter, and I therefore find it unnecessary to consider, whether this court’s decision in Gradel was a plurality or a majority decision.

I also agree that the jury instruction was not harmless error, but again, my analysis is somewhat different. The first part of the instruction — that the award would not be subject to federal income taxes — was clearly prejudicial in that it may have given the jury the idea of reducing the award because appellant would not be taxed on it. I don’t agree, however, that the second part of the instruction— that taxes should be neither added nor subtracted — reinforced the error. Majority Op. at 183-185. It seems to me that to some extent it undid the prejudice that resulted from the first part of the instruction: in effect, it told the jury that if the first part of the instruction had given the jury the idea of reducing the award, the jury should put that idea out of its mind. However, to extirpate an idea once it has been planted may be very difficult, and the teaching of Gradel is that the second part of the instruction was not sufficient to overcome the prejudice that resulted from the first part.

I agree that appellant is entitled to a new trial on the issue of damages.


author: PER CURIAM:

text:
    472 A.2d 710
    COMMONWEALTH of Pennsylvania v. John G. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1983.
    Filed March 9, 1984.

      Robert F. Pappano, Assistant Public Defender, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from appellant’s conviction of lotteries, gambling devices, criminal solicitation and criminal conspiracy, and his subsequent aggregate sentence of seven and one-half (7V2) to fifteen (15) years imprisonment and $15,-000. 00.fine.

Appellant couches all of his basic claims in ineffectiveness of counsel allegations, thereby rendering inapplicable the doctrine of waiver. As a result of our disposition of appellant’s first assignment of error, however, we will not reach his other claims.

Appellant alleges that he was denied effective assistance of counsel in that trial counsel was permitted to withdraw after the denial of post-verdict motions but prior to sentencing. He specifically argues that counsel’s claim of a potential conflict of interest leads to the presumption that the same potential conflict existed prior to and during trial.

Counsel who is alleging ineffectiveness must, ordinarily, set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). In the instant matter, however, appellant was unable to pursue such a course of action as trial counsel’s' motion for leave to withdraw merely stated that a potential conflict of interest existed. Furthermore, appellant claims that he was not advised of the motion nor a hearing upon it, which claims are not disputed by our review of the record. In fact, we find nothing in the record to indicate that a hearing was held on the motion.

If such a potential conflict existed prior to the filing of the motion, it may have permeated the entire proceedings. Therefore, given the circumstances and our inability to dispose of the issue on the record before us, we must remand for an evidentiary hearing on whether trial counsel’s potential conflict of interest existed prior to the filing of the motion to withdraw. Commonwealth v. Fink, 317 Pa.Super. 171, 463 A.2d 1140, 1141 (1983).

Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant’s underlying claims were not presented to the post-verdict or post-sentencing court for review.

      . Another attorney served as counsel for appellant during sentencing proceedings, and appellate counsel represents him for the first time herein.


text:
    472 A.2d 712
    In re Patricia ANSELMINO v. Andrew STARANKO, t/d/b/a Staranko’s Auto Body.
    Superior Court of Pennsylvania.
    March 15, 1984.
    For prior report, see 318 Pa.Super. 54, 464 A.2d 514.
   ORDER

AND NOW, having been advised that this case has been settled, this appeal is dismissed.


author: POPOVICH, Judge:

text:
    472 A.2d 1072
    Blanche STEINBERG v. SEARS, ROEBUCK AND COMPANY and Duralite Company, Inc. Appeal of SEARS, ROEBUCK AND COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed Jan. 27, 1984.

      John M. Corcoran, Philadelphia, for appellant.
    Barry H. Oxenburg, Philadelphia, for Steinberg, appellee.
    Gary Keith Feldbaum, Philadelphia, for Duralite, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, Sears, Roebuck & Company, from an order of the trial court which denied appellant’s “PETITION TO OPEN DEFAULT JUDGMENT”. We must reverse and remand for the reasons herein stated.

The dispute in this case arose initially from a complaint in assumpsit and trespass which was filed on February 10, 1981, by appellee-plaintiff, Blanche Steinberg, against appellant-defendant, Sears, Roebuck & Company, and appelleedefendant, Duralite Company, Incorporated. According to appellee-plaintiff’s complaint, she “sat down in [a certain lawn or beach chair which was sold by Sears and manufactured by Duralite] ..., at which time the seat portion of said chair broke away, and the chair then and there tipped over and/or collapsed beneath Plaintiff, causing” the appellee-plaintiff to suffer “a fracture of the surgical neck” and other damages. “COMPLAINT IN TRESPASS AND ASSUMPSIT” at No. 10 and 13.

Then, on March 17, .1981, a default judgment was entered against Sears only. Three days later, appellant filed a Petition to Open Judgment, which was denied by the trial court. This appeal followed.

The standard of review which governs this case has been set forth in the following manner:

“It is fundamental that a petition to open a default judgment is an appeal to the court’s equitable powers and, absent a clear abuse of discretion, the court’s decision will not be disturbed. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975). Moreover, it is equally well-settled that in an assumpsit action a petition to open should not be granted unless three conditions coalesce: (1) the petition has been filed promptly; (2) the default is reasonably explained; and (3) a meritorious defense is shown. Ruczynski v. Jesray Const. Corp., 457 Pa. 510, 326 A.2d 326 (1974); McCoy v. Public Acceptance Corp., supra; Jost v. Phoenixville Area School Dist., 237 Pa.Super. 153, 346 A.2d 333 (1975).”

Ecumenical Enterprises, Inc. v. Nadco Construction, 253 Pa.Super. 386, 390-92, 385 A.2d 392, 394-5 (1978).

Additionally, we have said a meritorious defense must be shown in a trespass action only when the equities are not otherwise clear. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Sines v. Packer, 316 Pa.Super. 500, 503, 463 A.2d 475, 477 (1983). Applying these standards to the instant case, this Court concludes that the trial court abused its discretion.

With respect to the first element, the timeliness of the petition to open, the parties do not dispute, and we have no doubt that the petition was timely since it was filed only three days after the default judgment was taken. See Main Line Abstract Co. v. Penn Title Insurance Co., 282 Pa.Super. 545, 423 A.2d 379 (1980) (five days after default was taken was timely).

When analyzing the second element, the trial court stated the following:

“In the instant case, plaintiffs Complaint in Trespass and Assumpsit was served upon Sears on February 13, 1981. A default occurred on March 5, 1981, when no entry of appearance or responsive pleading was filed. Pursuant to Pa.R.C.P. 237.1, plaintiff, by notice dated March 6, 1981, advised Sears of her intention to take a default. Despite said notice, an entry of appearance or responsive pleading was not filed. A default was then taken on March 17, 1981.
The crux of the defendant’s Petition to Open is that there exist inherent delays in processing a Complaint through a complicated corporate structure such as the Sears, Roebuck Company, and because of such inherent delays, the twenty day period which is provided by the Pennsylvania Rules of Civil Procedure for answering a Complaint, is not practical. Defendant’s petition cites the step-by-step process by which the Complaint and Rule 237.1 notice was transferred through the various offices and agents of Sears before arriving in the hands of counsel.
Here, the failure to enter an appearance or file an Answer cannot be excused merely because of the cumbersome and complicated structure the defendant itself has created for processing such complaints. This Court cannot elevate the defendant to a special status on its own initiative. To do so, would be a clear abuse of discretion and would infringe on the function of the Legislature. Thus, the second factor of the three prong test has not been met.” Trial Court Opinion at 1-2. (Emphasis added).

According to appellant, however, “Sears believed that a tender of defense had been accepted by its co-defendant in this litigation and that its interests were being protected by that co-defendant. Therefore, appellant did not seek to retain independent legal counsel until after the default had been taken, and it was clear its interests were not being served.” Brief for Appellant at 9.

Appellee argues that this contention “has not been raised by Appellant, and it is, therefore, waived.” Brief for Appellee-Plaintiff at 16 n. 6. We cannot agree.

In appellant’s petition to open judgment, appellant raised the issue in the following manner:

“25. Plaintiff’s counsel never served the Rule 237.1 notice directed to Sears or the papers requesting a Default Judgment on counsel for Duralite Co., in violation of Rule 233(c). The Plaintiff’s counsel knew of Mr. Bogdanoff s [Duralite’s Attorney] entry of appearance on or about March 6, 1981.
26. If Plaintiff had complied with Rule 233(c), Duralite’s counsel would have been able to take action to protect Sears by entering an appearance and by filing an Answer. Defense Counsel could have taken such a step because of the prior contact between the Defendants. Therefore, Plaintiff’s failure to comply with Rule 233(c) prejudiced Defendant Sear’s substantive rights. If Plaintiff is going to demand literal compliance with the Rules by Defendant Sears, then the Plaintiff should itself be held to the same standard.”
“PETITION TO OPEN JUDGMENT” at No. 25-26. (Emphasis added).

Appellee — co-defendant, Duralite Company, also states the following:

“[P]laintiff was obligated to serve Duralite with a copy of the Rule 237.1 notice addressed to Sears. In the absence of an entry of appearance for Duralite, plaintiff was obligated to serve Duralite with this copy by mail. Plaintiff has admitted that she did not serve Duralite with a copy of the notice directed to Sears. The failure to serve Duralite, to whom the defense of Sears had been tendered, deprived Duralite of the knowledge, required by the rules, that prompt action was needed to protect Sears. If the notice had been given as required, Duralite would have taken action to obtain an extension for Sears or otherwise tried to prevent entry of the default judgment through its Philadelphia counsel.” Brief for Appellee-Duralite at 9.

Appellee-plaintiff concedes that a copy of the notice was not sent to Duralite’s counsel. However, appellee-plaintiff makes no mention of whether such a notice was sent to the company, Duralite. Appellee frames the argument in the following manner:

“25. It is admitted that the Rule 237.1 Notice directed to Sears was not sent to counsel for Duralite. It is denied that the same is a violation of Rule 233(c).
The Rule 237.1 Notice was mailed to Defendant, Sears, on March 6, 1981 before Plaintiff’s counsel knew of Mr. Bogdanoff s appearance.
Rule 233(c) does not direct that copies of legal papers, etc., which have been served on party ‘x’ also be served on party ‘y’ ab initio, when party ‘y’s’ entry of appearance is served subsequent to the service of the legal paper in question on party ‘x’.
26. Denied. It is specifically denied that Defendant Sear’s rights were affected by the fact that Duralite’s counsel did not receive a copy of the 237.1 notice directed to Defendant, Duralite, or that Plaintiff did not literally comply with the Rules. See Answer to paragraph 25 above.
Further, it is specifically denied that the alleged but non-existent violation of Rule 233(c) would have prompted Duralite’s counsel to take action to protect Sears. The entry of appearance and jury demand received by Plaintiff’s counsel on March 7, 1981, was specifically for Defendant, Duralite, only. See Exhibit ‘B.’ ” (Emphasis in original)
“PLAINTIFF’S ANSWER TO DEFENDANT, SEARS, ROEBUCK AND COMPANY’S PETITION TO OPEN DEFAULT JUDGMENT”

Thus, appellee-plaintiff contends that her failure to send the Rule 237.1 notice is not pivotal because Duralite’s counsel, party “y’s” attorney, did not enter an appearance until March 7, 1981, which was after the notice was sent to Sears, party “x”. In any event, the argument goes, appellant was not prejudiced because counsel for Duralite entered an appearance for Duralite only.

To begin with, we have concluded that appellee’s failure to send Duralite notice of her intent to enter a default judgment against Sears constitutes a violation of our rules of civil procedure.

In pertinent part, Rule 237.1 provides:

“Rule 237.1. Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.” (Emphasis added).

This rule also must be examined in conjunction with another rule, Pa.R.C.P. 233 which provides:

“Rule 233. Service. Legal Papers other than Writs and Pleadings
(a) All legal papers, except writs and pleadings, to be served upon a party under any Rule of Civil Procedure including but not limited to motions, petitions, answers thereto, rules, orders, notices, interrogatories and answers thereto, shall be served by leaving a copy for or mailing a copy to him at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party, but if there is no such endorsement then
(1) within the county in which the action is pending by leaving a copy for or mailing a copy to him at the residence or place of business of the party;
(2) outside the county in which the action is pending, whether or not within the Commonwealth, by
(a) having a competent adult hand a copy to the person to be served; or
(b) leaving a copy at or mailing a copy by registered mail to the last known address of the party to be served; or
(c) if no address is known, publication in such manner as the court by local rule or special order shall direct.
Note: Writs and complaints used as process are served under Rule 1009. Pleadings generally are served under Rule 1027.
(b) Whenever an affidavit of service is filed it shall state the time, place and manner of service with sufficient particularity to enable the court to determine whether proper service has been made.
(c) A copy of every legal paper served upon a party under Subdivision (a) above shall be served upon ever [sic] other party to the action.” (Emphasis added).

In a recent case, we applied Rule 233 and commented in the following manner:

“Research has disclosed no appellate cases dealing with a failure to comply with Pa.R.Civ.P. 233(a). The rule, being straight-forward, has evidently not been the source of controversy. However, an addition to Rule 233 has generated one instructive case. Rule 233(c) requires that all parties to a suit be served with all papers that must be served under subsection (a). Where such service was not made on another party to the suit the order pursuant to those papers was declared invalid. Falco v. Insurance Co. of North America, 72 Pa.D. & C.2d 436 (1975). If an order is rendered invalid through the failure of one of the parties to a suit receiving service, then we may fairly extrapolate the same result when the only opposing party in a suit does not receive service.” (Emphasis added).

Pflugh v. Pflugh, 311 Pa.Super. 221, 226, 457 A.2d 575, 577 (1983).

The case of Falco v. Insurance Co. of North America, supra, provides some insight into the meaning of Rule 233. In Falco, the plaintiffs, Rosco and Gloria Falco, sued the defendant, the Insurance Company of North America, in order to recover the insurance proceeds because the Falcos’ business had been destroyed by fire. The Allentown Bar and Restaurant Supply, Inc. filed a petition to intervene as a plaintiff and mortgagee of certain personal property which had been destroyed in the fire. This petition was granted. A trial was held, and a verdict was entered in favor of the Falcos. In announcing the verdict, the court ordered part of the insurance proceeds to be held in escrow until the claims of judgment creditors, as well as the claim of the Allentown Bar and Restaurant Supply, Inc., could be resolved.

Subsequently, a judgment creditor, William Shannon, served a rule to show cause why a portion of the escrow fund should not be paid to him. A copy of this rule, however, was served only on the clerk of the courts, who was trustee of the fund. The rule was made absolute and the court ordered the monies to be paid to Shannon out of the fund and consolidated Shannon’s claim with the Falcos’ suit against the insurance company.

Another judgment creditor, Easton National Bank and Trust Company, also filed a petition to seek partial distribution of the funds because the Falcos assigned the funds to the bank. This petition was served on all of the parties. The supplier, Allentown Bar and Restaurant Supply, Inc., filed an answer alleging its priority to the funds. Then, the supply company filed an action in assumpsit against the Falcos and against the insurance company. A default judg meat was entered against the Falces. However, the insurance company filed an answer to the complaint.

The scenario continues with a petition for partial distribution which was filed by Wilbert Horvath and William Flick, mortgagees of the real estate which was damaged in the fire. A petition also was filed by the supply company and a consolidated hearing was held where the petitioners learned for the first time of the distribution to Shannon.

The Court of Common Pleas of Northampton County held that the “rule to distribute the $13,051.06 to Shannon, which was made absolute, should have been served on all the parties to this action.” Id. at 440. (Emphasis added). The court continued with its discussion stating the following:

“The problem with this entire chain of events was that Shannon did not, at any time, give any sort of notice to any of the other parties engaged in this dispute. See Pa.R.C.P. 233(c).”

Id. at 441. Accordingly, the court inter alia ordered the monies which had been paid to Shannon to be returned to the clerk.

Similarly, we find that appellee-plaintiff erred in not sending a copy of her notice of intent to enter a default judgment against Sears to Duralite in accordance with Pa.R.C.P. 233(c).

This factor is relevant because appellee contends that appellant-Sears has not been prejudiced by her failure to comply with Pa.R.C.P. 233(c). The uncontradicted testimony which was contained in the depositions and the pleadings establishes the following facts:

On February 13, 1981, at 8:45 a.m., appellant’s complaint in assumpsit and trespass was received by Dorothy Staiger, a secretary in the Security Department at the Philadelphia Catalog Distribution Center in Philadelphia, Pennsylvania. As part of her duties, Staiger logged the legal documents she received and sent the complaint that day to Thomas J. Enright “in a brown intra-company envelope”. Deposition of Staiger, 5/13/81, at 5. Enright, the supervisor of the claims department in St. Davids, Pennsylvania, received the complaint on Monday, February 16, 1981, and as part of “our custom, on the same day I sent it to our Law Department in Chicago” via first-class mail. Deposition of En-right/ 5/13/81, at 10. The complaint was received in Chicago not later than February 23, 1981. Anthony Boone, corporate counsel in Sears’ Chicago office, contacted the representative from Duralite by telephone on February 23, 1981, advising Mr. Zakin, the company representative, of the complaint his office had received and on that same date the following letter was sent to Duralite:

“February 23,1981
Duralite Company, Inc.
No. 2 Barbour Ave.
Paasaic, N.J. 07055
Attention: Mr. Irving Zakin
PHILADELPHIA COUNTY COURT OF COMMON PLEAS
Blanche Syeinberg [sic], ) Case No. Plaintiff ) 1591 -vs- ) Sears, Roebuck and Co., ) and Duralite Company Inc., ) Defendants _)_
Dear Mr. Zakin:
Pursuant to our telephone conversation of February 23, 1981 attached hereto is a Summons and Complaint [sic] served on Sears, Roebuck and Co. Service of the Summons and Complaint was accomplished on February 20, 1981 and Sears Answer or Appearance is due 20 days thereafter. I have caculated [sic] that the Answer is due on March 12, 1981.® Based on the allegations contained in Plaintiff’s Complaint, Sears is tendering the attached complaint to Duralite Company, Inc. and respectfully requests that Duralite indemnify, defend and hold Sears harmless in accordance with our buying agreement. As of this date, we have not retained local counsel in this matter. I trust that you will obtain counsel to represent both Sears, Roebuck and Co., and Duralite Company, Inc. Pursuant to our telephone conversation of today I fully expect that you will advise us as to your position relative to our requests for you to accept our tender of defense. Please acknowledge receipt of the attached and indicate Duralite’s willingness to indemnify, defend and hold Sears harmless in the above-captioned. In addition, please indicate the law firm engaged to represent Sears and Duralites interest in this matter. I am also requesting that Sears, Roebuck and Co., be provided with copies of all relevant pleadings and correspondence. .
Thank you in advance for your cooperation relevant to this matter.
Very truly yours,
SEARS, ROEBUCK AND CO. Anthony Boone, Attorney Product Liability Section Department 766
AB: jlz”
Boone Exhibit # 1.

This letter was received by Duralite and routed internally from Zakin to Ken Spiecker, who is responsible for handling customer complaints, through the intra-office mail on March 3, 1981. Deposition of Spiecker, 5/13/81, at 2-5. Previously, Duralite had received a copy of appellee-plaintiff’s complaint directly from appellee’s attorney; however, that complaint was forwarded to the insurance broker. Speicker spoke with Zakin upon receipt of the letter and then drafted the following letter to be sent to the broker who would then forward it to the carrier:

“6 March 1981
Hamond Brokerage 2325 New Hyde Park Rd. Lake Success, N.Y. 11042
Attn: Hy Albert
Re: Blanche Steinberg D-A: 7/3/79
Dear Hy:
Enclosed herewith is a request to honor our hold-harmless agreement with Sears, tendered by Mr. Boone, which is self-explanatory.
This has been discussed by the undersigned with Mr. Boone (Sears) and Mr. Edwards (Ambassador).
Please forward to Mr. Edwards.
Yours truly, DURALITE COMPANY, INC. KENNETH SPIECKER Director
Administrative Services
cc: Mr. Zakin Mr. Weinstein Mr. Boone
KS/mo Enel:”
Sears Exhibit # 4

According to the uncontradicted testimony, Spiecker had spoken to Mr. Edwards, the broker from the insurance company, on March 3, 1981. Id. at 7. Spiecker stated that he had “read him [Edwards] part of the content of the letter [from Boone] and indicated to him that I was forwarding the same to him in brokerage, and I wanted to make him aware of it because there were requirements for answering the service.” Id. More specifically, Spiecker read to Edwards the part of Boone’s letter which stated that the answer was due on March 12, 1981. Id. at 8.

With respect to whether Spiecker had discussed the Rule 237.1 notice with anyone, Spiecker commented:

“Q. Did you ever discuss with Mr. Edwards or with anyone else a Notice of Intent to Take Default with regard to Sears?
A. No.
Q. Do you know if anyone ever spoke to you about such a Notice?
A. I don’t recall any discussions about such a Notice.
Q. What is the usual procedure of your company when you receive a Notice of a legal proceeding against Duralite?
A. The Notice has to come to my office. I then take it and read it. I evaluate it to see what action seems to be necessary, and then I contact the appropriate party.
Q. Incidentally, are you an attorney?
A. No.
Q. When you say ‘contact the appropriate party,’ whom do you mean by that?
A. Well, my basic contact with our insurance carrier is through the broker. In some specific instances, we may contact both the broker and the insurance carrier. We also have private counsel, which are local attorneys, that can advise us in terms of technical matter and ramifications, and otherwise guide and direct us in the disposal of certain things.
Q. What would you do with any legal documents that you receive? How would you process them after evaluating them?
MR. OXENBURG: I object to the relevancy in this case.
Could you be more specific?
BY MR. FELDBAUM:
Q. If you received a Complaint or Summons or Notice of Intent to Take Default, what would you do with such a document?
A. Well, if it were well within the time limit for an Answer, I would mail it immediately with a cover letter to the broker. If there were a question in my mind about the time limit being relatively close, I would pursue it with a phone call.
Q. Did you go through all your usual procedures in this case?
A. So far as I know, I did.
Q. When did you become aware of the identity of Duralite’s counsel?
A. On March 4 or 5, 1981.
Q. So that was prior to your conversation with Mr. Boone?
A. I’m sorry. The conversation with Mr. Boone was March 3.
Q. Did you have any discussions with Mr. Edwards or anybody from Hamond Brokerage about the time limit as set forth in the first paragraph of Sears 3?
A. In discussing the letter itself, I am sure that it was discussed.
Q. What discussions did you have with Mr. Edwards at Ambassador about Ambassador’s taking over Sears’ defense in this case?
A. As I recall, it was a rather brief discussion. I simply pointed out that we had a request from Mr. Boone, and he indicated that he would evaluate it and handle it.
Q. When was that? Do you know?
A. I believe that was our conversation of March 3.
Q. Did you ever communicate again with anybody from Sears after receiving this letter marked as Sears 3?
A. Yes. I had at least two conversations with Mr. Boone.
Q. One was on March 3?
A. Yes, and I spoke to him on March 6, and I spoke to him on March 12.
Q. What was the nature of the conversation on March 12?
A. That barring difficulties we would defend Sears if it was a straightforward products suit.
Q. And from whom did you receive the authority to make that assertion to Mr. Boone?
A. I believe I spoke with Frank Hart, the Vice-President and General Manager of Duralite. However, to the best of my knowledge, I have that authority.
Q. I wasn’t challenging your authority. I just wanted to know if it came from Ambassador.
A. As a matter of fact, I am reluctant to make a verbal commitment until our insurance carrier has examined the matter thoroughly along with whatever attorneys they use. I will not make legal commitments without an attorney’s advice. I would not say my statement just now constitutes a legal commitment because I don’t know what other commitments exist between Sears and Duralite.
Q. When you spoke to Mr. Boone on March 12, was it still your impression that Sears had not retained counsel to defend itself in this matter?
A. My recollection is that he did not retain counsel.
Q. Did you and Mr. Boone, when you had your discussion on March 12, discuss in any fashion the fact that according to this letter marked Sears 3 an Answer to the Complaint was due on March 12, 1981?
A. I don’t believe that was discussed on that date.
Q. Did you ever receive a written or verbal communication from either Hamond Brokerage or Ambassador regarding this agreement to defend Sears?
A. I specifically discussed it with Mr. Edwards at Ambassador. I believe there is a reference to it. -
Q. Did you ever get a confirmation that they would, either in writing or verbally?
A. Yes, we did.
Q. When?
A. On March 20.” Deposition of Spiecker, 5/13/81, at 9-10, 14-16.

From the scenario set forth above, we are unable to conclude that plaintiff’s failure to comply with the Rule 233(c) was inconsequential.

To begin with, the language of the Rule is written in the alternative. That is, “all legal papers ... shall be served upon a party” by leaving a copy of the document at the address of either the party or the attorney of record. Pa.R.C.P. 233(a).

Additionally, appellant claims that it was prejudiced by Steinberg’s noncompliance with the Rule because the attorney at Sears, Anthony Boone, did not see the notice until the “23rd or 24th of March,” which was after the default had occurred. Deposition of Boone, 9/2/81, at 17. The supervisor of the claims department also stated in his deposition that the “Notice of Intent to Take Default” was received by him on March 20, 1981 from the Manager of the Customer Convenience Center whose internal memorandum indicated that he had not received any previous correspondence regarding this suit. For some unexplained reason, there was a gap of fourteen days from the time the notice was received at a Sears location until March 20th when the notice was received by Enright.

The lower court made no findings of fact regarding whether appellee had failed to mail a copy of the Rule 237.1 notice to Duralite. Without this fact, “the court could not decide whether appellant had offered a reasonable explanation for its failure to defend the action. It was therefore the lower court’s responsibility to make findings.” Brown v. The Great Atlantic & Pacific Tea Company, 314 Pa.Super. 78, 80-1, 460 A.2d 773, 774 (1983).

We, however, need not remand in this case because no one disputes that fact and, if the trial court on remand were to find otherwise, we would set aside the finding because that finding “would not be supported by the record. See, e.g., Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969). See generally Thompson v. Equitable Life Assurance Society, 447 Pa. 271, 276, 290 A.2d 422, 424 (1972) (Appellate court may make its own findings of fact where ‘record is clear’); Innes v. Nanticoke City School District, 342 Pa. 433, 20 A.2d 225 (1941) (same).” Id., 314 Pa.Superior Ct. at 81, 460 A.2d at 775.

Accordingly, the penalty for appellee’s failure to comply with Rule 233(c) prompts this Court to conclude under these circumstances that default judgment should be set aside. Pflugh v. Pflugh, supra, (where this Court held that the underlying order which was entered pursuant to the defective service was invalid).

Additionally, in this case, appellant had a reasonable explanation for failing to respond on time. Even if Attorney Boone harbored an erroneous impression that he had a verbal commitment “Duralite would accept Sears tender of defense in this matter without reservation,” that explanation is reasonable under the circumstances. Deposition of Boone at 30, 31.

Again, the trial court made no findings concerning whether it believed Boone’s version of what had happened. A representative of Duralite disagreed with Boone’s interpretation of the events and was of the impression that Duralite Company made no definite commitment to represent Sears as of March 6, 1981. However, Duralite does contend that “[e]ven if the belief of Sears is incorrect, the conduct of Sears in tendering the defense and relying upon their belief when coupled with follow-up efforts made by Sears demonstrates such diligence as to preclude entry of a default judgment.” Brief for Appellee, Duralite, at 8.

Thus, we need not examine which of the factual versions is more credible, because the pivotal question is whether appellant’s “failure to timely defend has been reasonably explained.” Ecumenical Enterprises, Inc. v. Nadco Construction, 253 Pa.Super. at 394, 385 A.2d at 396.

Boone’s deposition established the following:

“Prior to sending the letter out, I contacted the representative from Duralite by telephone on the 23rd of February.
Q Could you tell me what representative of Duralite you contacted?
A I believe his name was Mr. Zakin, Z-A-K-I-N.
Q Do you know what capacity he has at Duralite?
A I don’t know his capacity, but he was the named representative contact for Sears, Roebuck and Co. on claims and lawsuits.
Q Could you tell me what you said to Mr. Zakin during the course of your telephone conversation with him?
A I advised him that we had received the lawsuit, that this was a lawsuit that involved a pending claim that his office previously had knowledge of, and that we were tendering it to Duralite; and that there were some problems in reference to the applicable time to respond and that’s why I was called.
Q Which problems regarding applicable time were you referring to?
A In terms of answering the Complaint and I wanted to make sure that they would accept our tender of defense and that there would be no need for—
Q What did Mr. Zakin say to you during that conversation?
A At the time he acknowledged the fact that there was a pending claim and that they would take care of it.
Q Do you recall whether he specifically said they would assume the defense?
A No. I think he used the terms they would take care of it or that they would see that the matter was taken care of, but not necessarily those words which you used.” (Emphasis added). Deposition of Boone, 9/2/81, at 6-7.

On similar facts, this Court set aside a default judgment when the appellant-defendant, Ashbourne Country Club, had entered into a contract with Structures International, Inc. for the construction of an indoor tennis facility. Appellee-plaintiff, Cherry Steel Corporation, became a subcontractor for a part of the job and entered into a contract with Structures International, Inc., the general contractor. Appellee was not paid either by appellant or the contractor and as a result filed an intention to file a mechanic’s lien on both parties. The contractor and the club “agreed between themselves that the contractor’s lawyers would defend the action.” Ashbourne Country Club v. Cherry Steel Corporation, 227 Pa.Super. 433, 435, 323 A.2d 231, 232 (1974). Then appellee filed a mechanic’s lien and complaint naming only appellant as a defendant.

The appellant explained that it had failed to file an answer on time because it and the contractor had

“agreed that the contractor’s counsel would handle the defense and when only the appellant was served with the complaint it was still of the impression that the contractor’s counsel would handle the defense and that this shows a reasonable excuse for its one day delay in filing an answer.” Id. (Emphasis added).

We also conclude that the Ashbourne situation is apposite to the instant case, and that appellant’s explanation that “the matter was taken care of”, was reasonable since Sears was “of the impression that [Duralite’s] counsel would handle the defense.” Id. Accord Duffy v. Gerst, 286 Pa.Super. 523, 533, 429 A.2d 645, 651 (1981) (where appellants believed because of representations made to them by their real estate agents and broker, that engaging an attorney was not necessary, the explanation for failing to file answer to the complaint was reasonable and a default judgment should not have been entered.).

Moreover, in the instant case, appellant’s actions are not characteristic of a “[c]ase wherein failure to answer was a planned tactical decision.” Brown v. Great Atlantic & Pacific Tea Company, 314 Pa.Super. at 82, 460 A.2d at 775. Rather, we find that this case is more closely akin to those cases where we accepted delay as reasonable “particularly since the litigant had taken all steps that he reasonably believed would result in the protection of his interests.” Lalumera v. Nazareth Hospital, 310 Pa.Super. 401, 405, 456 A.2d 996, 998 (1983).

Additionally, the fact that both Duralite and Sears did not file an answer by March 12, 1981, the erroneous date stated in the letter from Sears, also is not dispositive in this case because as stated previously, appellee failed to advise Duralite in compliance with Pa.R.C.P. 233(c) that it had filed a notice of intent to take a default judgment against Sears whose request for representation Duralite was processing in accordance with its standard operating procedure.

In the past, we have said that “ ‘[t]he rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties [which] arise from litigation.’ ” Ecumenical Enterprises, Inc. v. Nadco Construction, 253 Pa.Super. 386, 385 A.2d 395 (1978) (quoting Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 445, 368 A.2d 802, 804 (1976).

In the instant case, appellee’s failure to comply with the notice requirement embodied in Rule 233(c), the entering of a default judgment by appellee on the first day available pursuant to Rule 237.1, the serving of the complaint by appellee at a store different from the one in which the incident occurred, and the sequence of events which established that Duralite and Sears were not dilatory in routing the various papers throughout the corporate network, are “equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his ‘day in court’ and to have the cause decided upon the merits. In so doing, we act as a court of conscience.” Ecumenical Enterprises, Inc. v. Nadco Construction, 253 Pa.Super. at 394, 395 A.2d at 396 (quoting Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971)). In this instance, the record is replete with “equitable considerations which impress the court with the need for relief.” Id.

With respect to whether a meritorious defense exists to support the complaint, we note that appellee’s complaint is an action in both trespass and assumpsit.

We need not reiterate at this point the equities balancing in favor of opening the default judgment which have been set forth, supra, except to state that insofar as appelleeplaintiff has filed a trespass action, a meritorious defense need not be shown in such a case. See Sines v. Packer, supra.

According to appellant’s “PETITION TO OPEN DEFAULT JUDGMENT”, a meritorious defense exists in assumpsit because “[tjhere was no sale of the clair [sic] to the Plaintiff. Therefore, there can be no cause of action in assumpsit.” Id. at Allegation No. 21.

In our view, there is no doubt that appellant has alleged a meritorious defense to the assumpsit action. 3 P.L.E. Assumpsit § 4 at 321. (“a party may not sue in assumpsit for a mere tort when there is no contract, express or implied”.) (Footnote omitted).

Because the trial court abused its discretion in concluding that the appellant’s explanation was not reasonably explained, we must vacate that judgment and remand for trial.

Order vacated and case remanded for trial.

Jurisdiction is relinquished.

      . Appellant’s petition to open default judgment states that the complaint was received in Chicago on February 20, 1981. Other testimony indicated that it was received either on the 20th, but in any event no later than February 23, 1981. Deposition of Enright, 5/13/81, at 11 and Deposition of Boone, 9/2/81, at 5-6.

      . This date was erroneous since the complaint was served on February 13, 1981, and 20 days from that date was March 5, 1981 and not March 12, 1981. According to Attorney Boone, “the letter is a form letter and the date was picked up by the secretary." Deposition of Boone, 9/2/81, at 32.

      . The memorandum stated:
      “SEARS, ROEBUCK AND CO. INTERNAL CORRESPONDENCE
      TO Unit Eastern Territory Dept, or Unit No. 766E Name Mr. T. Enright
      FROM Unit Northeast_ Dept, or Unit No. 1004 Date March 17, 1981
      Re: Blanche Steinberg
      Dear Mr. Enright:
      We have researched our files and found no previous correspondence on the attached.
      S/ D.J. Kelly kw D. J. Kelly Manager Customer Convenience Center
      DJK:kw"