author: HOFFMAN, Judge.

text:
    580 A.2d 799
    FIRST PENNSYLVANIA BANK, N.A. and Leonard and Katherine Neuber v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. and Aetna Life and Casualty. Appeal of NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
    Superior Court of Pennsylvania.
    Argued May 3, 1990.
    Filed Sept. 19, 1990.

      James M. Marsh, Philadelphia, for appellant.
    Fredric L. Goldfein, Philadelphia, for Aetna Life, appellee.
    Before DEL SOLE, JOHNSON, and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from an order, dated October 11, 1989, granting appellee’s motion for summary judgment. Appellant, National Union Fire Insurance Company, argues that the court below erred in: (1) granting appellee’s motion; and (2) amending its order on November 21, 1989 to include attorneys’ fees. For the following reasons, we affirm in part and reverse in part.

This appeal arises from a declaratory judgment action in which appellee, Aetna Insurance Corporation, sought a determination of insurance coverage owed to the insured, First Pennsylvania Bank, N.A. (bank). The bank was sued by Leonard Neuber (the victim), who was injured following an incident on the roof of the bank’s building at 3020 Market Street, Philadelphia. The bank had two insurance policies. One was issued by Aetna, and covered the building but excluded the heliport on the roof of the building. The other was issued by National, and covered the heliport but excluded the building. The victim was injured on the roof in a doorway which led to the area of the helipad. When he filed suit, both insurance companies denied coverage. Thereafter, the bank and the insurance companies settled with the victim. The insurance companies then settled with the bank. The claim between the insurance companies was preserved and submitted to the court for adjudication. On October 11, 1989, the court below granted Aetna’s motion for summary judgment. The order was entered into the docket on October 16, 1989. On November 9, 1989, National filed a timely notice of appeal. Thereafter, on November 21, 1989, the court amended its original order granting summary judgment, and ordered National to pay Aetna $52,400, representing Aetna’s portion of the settlement the insurance companies entered into with the victim and the bank. National did not appeal separately from that order.

National’s argument that the court below erred in granting Aetna’s motion for summary judgment is based on two claims. First, National claims that the victim’s injury did not occur in an area covered by its policy. Second, National claims that Aetna is liable for the victim’s injury because the exclusionary clause in Aetna’s policy is inapplicable to this case. We shall address these claims seriatim..

Our standard of review of the grant of a motion for summary judgment is well settled:

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment may be entered only in cases that are clear and free from doubt. Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Moreover in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. Thus an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion.

Kaller’s Inc. v. Spencer Roofing, 388 Pa.Super. 361, 364, 565 A.2d 794, 795-96 (1989) (citations omitted). Furthermore, as we stated in DiFabio v. Centaur Ins. Co., 366 Pa.Super. 590, 531 A.2d 1141 (1987):

The rules that govern our construction of insurance contracts are familiar. As a means of fostering stability and predictability in contractual relationships, the common law has assigned to the court the task of interpreting the intent of the parties. When the language of the contract clearly reflects the parties’ intent, the court must give effect to that language____ Of course, this general rule of construction does not absolve the court of its obligation to consider the circumstances from which the written instrument sprang. If extrinsic evidence will aid in the resolution of ambiguities, the court must look to it. If, moreover, the extrinsic evidence raises disputed issues of material fact, the court must refer those issues to the fact finder.

Id., 366 Pa.Superior Ct. at 593-94, 531 A.2d at 1142-43 (citations omitted).

National’s first specific claim is that it is not subject to liability because the doorway in which the victim’s injuries occurred was not a “way adjoining” the helipad for purposes of the insurance policy it issued. We disagree.

National provided the bank with a policy that states:

When used in this endorsement, “insured premises” means the premises designated in the schedule and in-eludes the ways immediately adjoining such premises on land.

See R.R. at 62a. The schedule referred to above states:

(a) Premises-Operations
1st PA Helipad
3020 Market Street Philadelphia, Pa.

See R.R. at 58a. National notes that the word “way” has been defined by different authorities as “a passage, road or street,” and “a course affording passage from one place to another; a course that is or may be used going from one place to another.” See Appellant’s Brief at 12. Viewing the facts of this case in light of the these everyday definitions, it is clear that the court did not err in granting summary judgment. The facts surrounding the victim’s injuries are undisputed. The helipad in question sits on a raised platform on top of the roof of the 3020 Market Street building. See R.R. at 204a-207a. The victim was performing structural work on the helipad supports when, seeing a helicopter approaching the helipad for landing, he took shelter in a doorway that led out to the helipad from inside the building. When the helicopter lifted off, the victim was injured by the door, which swung shut because of backwash (wind) generated by the helicopter. See R.R. at 30a-33a. We have carefully reviewed the record, and there is no evidence of any means of accessing the helipad from inside the building other than this door and others like it. Under these circumstances, the doorway in which the victim sought refuge was a “way adjoining” the helipad for purposes of the insurance policy. We therefore agree with the finding of the court below that the victim was indeed standing in a “way adjoining” the helipad when his injury occurred. See Trial Court Opinion, October 11, 1989 at 1.

We find further support for this conclusion by considering the circumstances surrounding the execution of the two insurance policies, and their interrelationship. The record reveals that the bank entered into a contract with Aetna in which Aetna explicitly renounced “liability arising out of the maintenance, operation, or use of the heliport____” See R.R. at 90a. In contrast to Aetna’s policy, National agreed to insure the helipad and “ways adjoining it.” See R.R. at 58a, 62a. Both the policies and the circumstances surrounding them indicate that it was the intent of National and the bank that National provide coverage for accidents arising out of the use of the helipad area. It is our duty to give effect to that intent. See DiFabio v. Centaur Ins. Co., supra. No interpretation of the above-mentioned policy provisions would justify imposing liability on Aetna in this action to determine liability between the two insurers. Therefore, we hold that National’s policy covered the injury in question.

National’s second specific claim is that Aetna is liable for the victim’s injuries because Aetna admits liability but for the existence of an exclusionary clause in its policy. National asserts that the exclusionary clause should be strictly construed against Aetna, and is therefore inapplicable to this case. It is true that exclusionary clauses should be strictly construed as a general matter. However, even when strictly construed, we do not agree with National that Aetna’s exclusion is inapplicable to this case. In its entirety, the. specific exclusion contained in Aetna’s policy reads as follows:

Heliport Exclusion
It is agreed that such coverage as is afforded under Section II — liability coverage does not apply to liability arising out of the maintenance, operation, or use of the heliport at 3020 Market Street, Philadelphia, Pa.

See R.R. at 90a. As noted above, the record reveals that the victim was working on the roof when a helicopter used the helipad for lift off, and the wind current generated by the craft’s rotor blades caused a door to swing shut on his thumb. These facts show that the victim’s injuries resulted from the “use or operation” of the helipad. The language of Aetna’s policy is clear. Aetna is not to be held liable for injuries arising out of such “use or operation.” Accordingly, we hold that National’s claim regarding the exclusion included in the Aetna’s policy is meritless. Therefore, the trial court did not err in granting Aetna’s motion for summary judgment.

National's second argument is that the trial court erred in amending its original order to include attorneys’ fees. Specifically, National argues that because the record reveals no evidence of bad faith on its part, it should not be required to reimburse Aetna’s attorneys’ fees.

Our standard of review of awards of attorneys’ fees is well settled.

Awards of attorney’s fees and costs incurred in bringing an action are within the discretion of the trial court, and will not be reversed on appeal in the absence of an abuse of discretion.

Szillery v. Wheaton, 382 Pa.Super. 394, 555 A.2d 237 (1989); see also Park v. Greater Delaware Valley Sav. & Loan Ass’n, 362 Pa.Super. 54, 523 A.2d 771 (1987).

In evaluating National’s argument, we find our opinion in F.B. Washburn Candy Co. v. Fireman’s Fund, 373 Pa.Super. 479, 541 A.2d 771 (1988) to be instructive. In Washburn Candy, a general omnibus liability insurer was forced to defend its client in a suit brought by a party who had been injured by a truck shipping its client’s products. That defense was necessitated by the wrongful refusal of the insurer of the shipper to defend the action. Thereafter, the omnibus insurer and its client brought a declaratory judgment action in order to establish the rights of the parties under the shipper’s insurance policy and to recoup the costs associated with the omnibus insurer’s defense of its client. A unanimous panel of this court, speaking through Judge Del Sole, held that the omnibus liability insurer was entitled to recover the costs and attorneys’ fees that it incurred in defending its client “[bjecause our cases are well settled that in an action in assumpsit for the breach of a covenant to defend recovery includes the costs of hiring counsel and other costs of defense____” Id., 373 Pa.Superior Ct. at 483-84, 541 A.2d at 773. With regard to the issue of liability for costs and attorneys’ fees incurred in the declaratory judgment action itself, however, we noted that “an insured who is compelled to bring a declaratory judgment action to establish his insurer’s duty to defend an action brought by a third party may recover his attorneys’ fees incurred in the declaratory judgment action if the insurer has, in bad faith, refused to defend the action brought by the third party.” Id., 373 Pa.Superior Ct. at 484, 541 A.2d at 773-74 (citing Kelmo Enterprises v. Commercial Union Ins., 285 Pa.Super. 13, 426 A.2d 680 (1981)). Finally, we rejected the trial court’s holding that no duty ran from the shipper’s insurer to the omnibus insurer, and held that the omnibus insurer stood in the same place as its insured for purposes of recovering losses incurred in its defense of the insured and the declaratory judgment action. Specifically, we stated that

[W]e find that the doctrine of equitable subrogation applies to the facts before us:
[i]t is well established that the action for subrogation is one based on considerations of equity and good conscience. The goal is to place the burden of the debt upon the person who should bear it. The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles____ It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated.

Id., 373 Pa.Superior Ct. at 484, 541 A.2d at 774.

The facts of this case are similar to those of Washburn Candy. Close examination of the record reveals that National’s wrongful refusal to assume liability under the policy it issued to the bank forced Aetna to advance funds to the victim and the bank, and to expend funds for legal fees both to defend the bank against the victim, and to defend itself against National in the declaratory judgment action. As noted above, there is not even a genuine issue of material fact regarding whether National is liable under the terms of its policy. Thus, Aetna’s duty to defend the bank was triggered and maintained under inappropriate circumstances. Accordingly, under the principles articulated in Washburn Candy, supra, we hold that National is responsible for attorney’s fees and costs incurred by Aetna in defense of the underlying action. However, because the court below did not specify which attorneys’ fees National is to pay, and because the court made no explicit finding regarding whether National acted in bad faith in the summary judgment action, we remand the case to the lower court for a determination regarding that issue. See Wash-burn Candy, supra. If it is found that National acted in bad faith in the summary judgment action, Aetna is entitled to the attorneys’ fees expended in that action, also.

For the foregoing reasons, we affirm the order below to the extent that it granted summary judgment in favor of Aetna Insurance Corporation. We reverse that portion of the order relating to attorneys’ fees and remand for proceedings consistent with this Opinion.

Order affirmed in part and reversed in part. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . See Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981).

      . We note that the court below did not modify its original order until over thirty days after it was entered, and National had taken an appeal therefrom. Generally speaking, such action is prohibited. See 42 Pa.C.S.A. § 5505; Pa.R.A.P. 1701; Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); Atlantic Richfield Co. v. J.J. White, Inc., 302 Pa.Super. 276, 448 A.2d 634 (1982). We note, however, that National does not question the court’s authority to amend the order to include a specific damage amount. Moreover, because the court merely took action to correct a formal error in the papers relating to the matter at issue, its action was proper. Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983) (where trial court’s action requires no exercise of discretion, computation is clerical matter based on amounts appearing on face of record, and no factfinding required, modification of order after appeal taken or thirty day period expired is permissible correction).


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    580 A.2d 804
    COMMONWEALTH of Pennsylvania v. Curtis CROSLAND, a/k/a Curtis Croslend, James Turner, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1990.
    Filed Sept. 20, 1990.

      Benjamin Paul, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence to a term of life imprisonment, imposed after a jury found appellant guilty of murder in the second degree, robbery, and possession of an instrument of crime. Since we find that the Commonwealth’s use of the prior inculpatory testimony of a witness who was unavailable at trial due to the exercise of his Fifth Amendment privilege, under the circumstances of this case, violated the appellant’s rights under Article 1, Section 9 of the Pennsylvania Constitution, as well as those guaranteed by the Sixth Amendment of the U.S. Constitution, we vacate the judgment of sentence and remand for a new trial.

Appellant was arrested on December 10, 1987, and charged with the January 5, 1984 murder of Mr. Ill Man Heo, who had been shot during the course of a grocery store robbery in South Philadelphia. Witnesses to the crime who had been present at the scene of the murder were able to give only general descriptions of the assailant as a short black man, approximatély 5'-5" tall.

More than three years after the crime, in March of 1987, Rodney Everett, who was the paramour of appellant’s sister, told his parole officer that appellant had, a few weeks after the robbery, told him that he had shot Mr. Heo while attempting to rob the store. Everett provided this information to his parole officer in an apparent attempt to obtain favorable treatment for a parole violation.

Appellant was subsequently arrested and charged with murder, and Everett testified against him at the preliminary hearing. At trial, the prosecutor, in his opening statement to the jury, explained Everett’s testimony as follows:

You will hear that the defendant’s sister had a child by the name — by a man by the name of Rodney Everett. This defendant was that child’s uncle. You will hear that this defendant knew Rodney Everett and had spoken with him and was friendly with Rodney Everett. And you will hear that Rodney Everett was a man convicted of robbery and was on parole for robbery at the time this murder occurred.
You will hear that the defendant told Rodney Everett everything that happened in connection with the murder at the grocery store. You will hear how the defendant bragged and ran down in detail to Rodney Everett exactly what happened in that grocery store, assuming of course that he could trust somebody who was the father of his nephew.
But you will hear how when Rodney Everett got in problems with his parole that the first thing he did was tell the police everything he knew about the defendant and the defendant’s involvement in the murder. And you will hear how the police got the information about the murder and corroborated everything that Rodney Everett had told them.
You will hear from Rodney Everett about the confession by this defendant to him about the murder. You will hear testimony corroborating the fact that this defendant was the one who committed the murder.

Dec. 12, 1988, N.T. 18-19.

Everett, however, did not testify at trial due to the invocation of his Fifth Amendment privilege against self-incrimination. While the record is silent as to the basis for the invocation of the privilege, the trial court explained in its opinion that counsel for Everett “advised counsel and the court in chambers that the reason for the invocation was based upon possible problems resulting from variations between his prior statements and any testimony he might be compelled to make at trial. Upon motion of the prosecutor, Everett was then declared unavailable and the Commonwealth was permitted to present his preliminary hearing testimony to the jury.”

Defense counsel objected to the introduction of the testimony and repeatedly requested that the court inform the jury that the basis for the invocation of the privilege by Everett was his belief that his testimony at trial would subject him to prosecution for perjury based on his testimony at the preliminary hearing. This request, as well as a request for an instruction to the jury concerning the reason for Everett’s unavailability, were opposed by the Commonwealth and denied by the trial court.

The Commonwealth contends that appellant has waived his right to such relief as he might otherwise have been entitled to claim, because he “failed to meet his burden of establishing that the [preliminary] hearing testimony was false” ... and “did not request the court to conduct a hearing to determine whether Everett’s counsel had a proper basis for invoking [her] client’s privilege”. We find the Commonwealth’s argument concerning waiver to be merit-less. Appellant was not the party seeking to introduce the testimony to be supplied by Everett. “It should be self-evident that the party against whom the evidence is sought to be offered should not be expected to support its introduction.” Commonwealth v. McGrogan, 523 Pa. 614, 619, 568 A.2d 924, 926-927 (1990).

Appellant contends that the Commonwealth’s use of Everett’s preliminary hearing testimony, in light of his subsequent invocation of the privilege against self-incrimination based upon fear of perjury charges, denied appellant the right to confront and cross-examine his accuser, in violation of the Sixth Amendment to the United States Constitution and Article 1, Sec. 9 of the Pennsylvania Constitution. Appellant also argues that the concealment from the jury of the basis for Everett’s unavailability, in light of the introduction of his prior testimony, offends due process guarantees.

“The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to cross-examine.” Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). While the rights provided by the Confrontation Clause are fundamental rights, guaranteed by both the federal and state constitutions, they are not absolute and “ ‘must occasionally give way to considerations of public policy and the necessities of the case’”. Commonwealth v. Kravontka, 384 Pa.Super. 346, 351, 558 A.2d 865, 868 (1989), quoting Mattox v. U.S., 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). The balancing of the competing interests of the state and the accused has resulted in the formulation of recognized exceptions to the prohibition against the admission of hearsay evidence.

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” Snyder v. Massachusetts, 291 US, [97] at 107, 78 L.Ed. 674, 54 S.Ct. 330 [333], 90 ALR 575. The principle recently was formulated in Mancusi v. Stubbs [408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) ]:

“The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, [400 U.S. 74] at 89, [91 S.Ct. 210, 220, 27 L.Ed.2d 213] and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, supra [399 U.S. 149] at 161, [90 S.Ct. 1930, 1936, 26 L.Ed.2d 489]. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ”
408 U.S. at 213, 33 LEd2d 293, 92 S.Ct. at 2308.
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2534, 65 L.Ed.2d 597 (1980) (emphasis supplied) (citations and footnotes omitted throughout).

Appellant recognizes that the courts have consistently failed to view as a violation of the Confrontation Clause the introduction of the prior testimony of an unavailable witness against an accused, and, therefore, argues that where the unavailability of the witness is based solely upon his repudiation of the testimony sought to be admitted, the usual reasons for finding “sufficient indicia of reliability” no longer exist.

We agree with appellant that where prior testimony of a witness, whose unavailability is predicated solely upon fear of a perjury prosecution, is introduced against a defendant pursuant to 42 Pa.C.S. § 5917, due process requires something more than was accorded appellant in the instant case. The trial court was of a similar mind but believed itself constrained by prior rulings of this Court and the Pennsylvania Supreme Court. While our research has not revealed any Pennsylvania cases directly on point, the precise issue here presented was the subject of the appeal in People v. Garner, 207 Cal.App.3d 1586A, 207 Cal.App.3d 935, 255 Cal.Rptr. 257 (1989). Justice Donald N. Gates, writing for the California Court of Appeals, there outlined two alternative methods of insuring that the finder of fact will have all relevant evidence before it:

The prosecution’s entire case in chief consisted solely of (1) an autopsy report indicating that a Phillip Matthews had died “as a consequence of multiple gunshot wounds,” and (2) a reading into the record of the testimony given by the one and only witness produced at appellant’s preliminary examination, i.e., Alonso Phillips. This latter procedure, which constituted the only evidence connecting appellant to the crime, was permitted because the witness, having subsequently advised the prosecution his identification of appellant at that hearing had been a lie, refused to testify at trial asserting that to do so would permit the prosecution to charge and convict him of having committed perjury!
* * * * * *
In the case before us, of course, appellant was completely precluded from questioning his sole accuser concerning a primary issue, i.e., the witness’s admission of false swearing, since such admission had occurred only after appellant’s preliminary examination had been completed. As a consequence, as to the most basic question in controversy, appellant was denied both his constitutional right to confront his accuser and to conduct a meaningful cross-examination. These deprivations ... effectively precluded the jury from determining when, if ever, the one witness against him was speaking truthfully.
When the People wish to go forward in reliance upon the testimony of a recanting witness, fundamental fairness would require, at a minimum, that the jury (1) be advised precisely why the witness is being allowed to refuse to testify, i.e., an alleged fear of a perjury prosecution, and (2) be instructed that they should draw all reasonable and appropriate inferences therefrom concerning the witness’s credibility and the guilt or innocence of the accused.
In fact, in instances such as the present, we believe the truly preferable approach, as appellant urges, would have been for the trial court to condition the People’s request to introduce Phillips’ allegedly perjured testimony upon its granting him immunity from prosecution. Respondent has suggested no reason why this procedure would have been prejudicial to it and we can conceive of none. Obviously, the People could not, in good conscience, have urged that the very testimony on which they asked to have appellant imprisoned for the balance of his life, was so untrustworthy that they wished to retain the right to prosecute their declarant for perjury. They already knew, of course, that Phillips claimed to have testified falsely. Under such circumstances one might have hoped the prosecution would have been as desirous as the defense to see the truth prevail, whatever that might be. Further, of course, a grant of immunity for past perjury would not have precluded the District Attorney from proceeding against Phillips if it deemed his trial testimony to be untrue.
In this fashion, the prosecution could have gone forward despite Phillips’ avowed change of heart and yet accorded appellant those rights guaranteed him by both state and federal constitutions____ That is to say, the arbiters of appellant’s guilt or innocence would actually have observed the confrontation between accuser and accused and heard each of Phillips' conflicting tales fully and fairly tested by each parties’ cross-examination, before they were called upon to determine which version to credit.
He H* H< * H< H«
Lest there be any confusion concerning the extremely limited nature of the remedy we here recommend, we emphasize that a need therefore will arise if, and only if, (1) the witness’s invocation of the privilege is based upon a claimed fear of a perjury prosecution, and (2) it is the People who wish to use this witness’ earlier, and assertedly false, testimony as evidence against the accused. While the District Attorney may not be required to seek a grant of immunity even in such an instance, his request to make affirmative use of that testimony may be conditioned upon his willingness to expose the witness to full and complete cross-examination before the triers of fact.

People v. Garner, supra 255 Cal.Rptr. at 258-61.

It must be emphasized that the factual scenario which triggers the claim of violation of the confrontation clause must be carefully scrutinized since the method of remedy will vary with the nature of the asserted infringement. So certain a caveat is issued because such claims as we address may be expected to occur with some frequency since, in the current age, the oath which has for centuries been the sine qua non of our systems of justice, has become a meaningless procedure to those who live by predatory instinct. And, of course, such claims can be expected to assume various forms since the advocacy system which has so distinguished our justice systems flourishes upon the innovative challenges presented by counsel for the accused.

In near example, our esteemed colleague, Judge Joseph A. Del Sole, writing for this Court in Commonwealth v. Hook, 364 Pa.Super. 447, 528 A.2d 241 (1987), held that where “a witness [gives] sworn testimony, subject to cross-examination by the defendant, and when called upon to testify at a subsequent trial, claim[s] to be unable to recall the former testimony ... [the witness] must be called upon to testify as to the extent of his or her present memory ... and be available for cross-examination by the defendant. This preserves a defendant’s Sixth Amendment right to confront witnesses against him. In a case such as we have before us, a witness has, in effect, provided two different versions of her observation of the events in question: the earlier version was incriminatory; the second was vague. The jury must be allowed to hear both versions, weigh the conflicting evidence and reach its verdict accordingly.” Id., 364 Pa.Superior Ct. at 451, 528 A.2d at 242-243 (emphasis supplied) (footnote omitted).

When a New York prosecutor refused to grant immunity to a prosecution witness who (1) had implicated the accused in direct testimony for the prosecution, (2) then expressed the wish to recant that inculpatory testimony, and (3) subsequently indicated that he would invoke his Fifth Amendment rights when called by the defense, the New York Supreme Court, Appellate Division, in People v. Priester, 98 A.D.2d 820, 470 N.Y.S.2d 478 (1983), ruled that the refusal of the prosecutor to grant immunity to the witness was an abuse of discretion, declaring:

The grant of immunity is usually with the discretion of the District Attorney and any review by the court is on a restricted basis. However, in some instances, it has been held to be an abuse of authority where the exercise of such discretion affects defendant’s due process rights to a fair trial and to vital exculpatory testimony. Here, the District Attorney’s denial of immunity had the effect of binding this witness to her previous testimony which she contended was not accurate. The grant of immunity here was obviously sought to protect [the witness] from perjury charges if she changed her testimony. There is nothing to indicate that she was seeking to avoid prosecution for past crimes. This fact, coupled with the importance of her testimony bearing as it did on defendant’s intent, required that immunity be granted____ The denial thereof requires that a new trial be granted conditioned on the grant of immunity to this witness.

People v. Priester, supra at 822, 470 N.Y.S.2d at 480.

Further pertinent to our discussion of this vexing issue is, perhaps, the concurring statement of Michigan Supreme Court Justice Charles L. Levin, in People v. Dyer, 425 Mich. 572, 390 N.W.2d 645 (1986), not only by reason of his succinct expression upon the question we here review, but as well because of his cautious concern that the imbalance between the right of the prosecutor and the right of the accused to secure immunity for a witness who has invoked his testimonial privilege might well implicate constitutional rights beyond the confrontation clause:

When a witness called by the people invokes his Fifth Amendment privilege, the prosecutor can obtain the witness’ testimony by providing him with immunity from prosecution. A defendant cannot confer immunity on and thereby obtain the testimony of a witness he wishes to call who has invoked his Fifth Amendment privilege. The prosecutor and the defendant are thus not in the same position when a witness invokes his Fifth Amendment privilege. Nevertheless, I agree with the opinion of the Court that this imbalance does not justify the defendant any more so than the people in calling a witness whom he knows will claim a valid privilege not to testify for the purpose of impressing upon the jury the fact of the claim of privilege. No inference may properly be drawn from the claim of privilege, and thus on principle neither side may seek to place this non-evidence before the jury.
A defendant may, however, have the right to obtain the testimony of the witness who invoked the privilege, just as the prosecutor might by granting immunity. To deny the defendant the testimony of the witness might be violative of the Due Process Clause, the Confrontation clause, or of other constitutional and statutory rights. The question whether a defendant has a right in a particular case to witness immunity has evoked a sharp division of opinion and much critical comment.

People v. Dyer, supra at 584-85, 390 N.W.2d at 651 (footnote omitted).

The trial court, in the instant case, believing that it had no recourse but to permit the Commonwealth to use the allegedly perjurious testimony and conceal the basis for the invocation of the privilege from the jury, insightfully observed that:

Where as here, a verdict rests on testimony which is admitted to be inaccurate, any court must have cause to be troubled. Were we sitting as a court with broad policy making jurisdiction, we would provide for the trial courts to have the power to sua sponte grant use immunity and compel testimony where the basis of the privilege is the avoidance of the potential consequences of prior false testimony or statements which are to become evidence upon which a conviction is to be obtained, (emphasis in original)

Our legislature, however, has conferred upon the courts the authority to grant use immunity only upon application of the prosecutor. Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985). Thus, however sage the suggestions of the trial court, we are precluded from ordering the prosecutor to grant the witness use immunity.

In any event, since the precise issue, as well as the facts, presented in the California decision of People v. Garner, supra, mirror the instant case, and since the insightful analysis and careful expression of that decision so nearly achieves the precious balance between the right of society to a verdict and the right of the accused to a fundamentally fair trial, we accept and rely upon that rationale for our determination. Thus, we rule (1) that appellant be granted a new trial, and (2) that, in the event that Rodney Everett again invokes his privilege against self incrimination and the prosecution proceeds to the presentation of his earlier testimony, the prosecution should confer upon him immunity from prosecution for that earlier assertedly perjured testimony, or if the prosecutor, in the exercise of his discretion, declines to grant the witness immunity pursuant to 42 Pa.C.S. § 5947(a), (b), (c), and (d), the court must advise the jury that Rodney Everett refuses to testify by reason of his fear that the earlier testimony will subject him to prosecution for perjury.

Judgment of sentence reversed. Case remanded for proceedings consistent herewith. Jurisdiction relinquished.

      . The distinguished Judge William J. Manfredi sentenced appellant to serve a term of life imprisonment for murder, and to serve concurrent terms of from ten years to twenty years for robbery, and from two and one-half years to five years for possession of an instrument of crime.

      . The role of the informer has historically been served in secret. The more recent practice of agents and prosecutors has been to move the informer from the shadows of anonymity to the spotlight of trial, in a lead role as an accusatory witness and, frequently enough, into testimony that the accused “confessed” in his presence. Such assistance to the prosecution is usually triggered by the promise of leniency, as well as other blandishments. The risk of recantation by such witnesses becomes then part of the price the prosecutor must pay for proceeding to so ephemeral, and thereby perilous, an alliance.


author: KELLY, Judge:

text:
    580 A.2d 811
    Eileen MELVIN, Appellee, v. John MELVIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 13, 1989.
    Filed Sept. 20, 1990.

      Stephen L. Needles, Newton, for appellant.
    Sue N. Lang, Levittown, for appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

This is an appeal from an order refusing to issue a rule to show cause why an order awarding protection from abuse should not be vacated, and a new trial on the petition be granted, when the protection order was granted following proceedings under Pa.R.C.P. 218 in absence of the defendant appellant, who alleged in the petition for the rule that he had arrived only three minutes late, but that the proceedings had already ended, and the trial court refused to reopen the matter in order for him to present his defense. We affirm.

FACTS AND PROCEDURAL HISTORY

John and Eileen Melvin were married February 15, 1969. The marriage produced four children. In November 1979, the parties separated.

The record in this case contains a verified petition for protection from abuse filed November 9, 1982, which was accompanied by a supporting affidavit sworn to by Eileen Melvin on personal knowledge, dated September 2, 1982. The petition and affidavit averred that on August 21, 1982, John Melvin had repeatedly stabbed Eileen Melvin with a kitchen knife, until the blade broke, and that Eileen Melvin had gone to the Hospital to have the wounds cleaned and sutured. The accompanying draft protection orders, however, are unexecuted. The record fails to disclose whether a protection from abuse order was granted eventually, or whether criminal charges ever were brought regarding the underlying incident.

On April 7, 1987, the trial court entered an interim custody order which expressly and unequivocally directed John Melvin to have “no contact between you and these children or Mrs. Melvin until I hear from [your counsel] that the reports I’ve requested him to get are complete and ready.” The order was made perpetual pending further order of the Court. (N.T. 4/9/87 at 4). The transcript clearly indicates that the hearing was regarding custody, and that no protection from abuse petition was presented or acted upon at that time. (N.T. 4/9/87 passim).

On May 12, 1989, John Melvin was arrested pursuant to a warrant issued May 9, 1989, and charged with indirect criminal contempt. Despite the fact that the order alleged to have been criminally violated was a custody order, the code section cited in the complaint and the bail forms indicated that John Melvin had been charged with indirect criminal contempt of a protection from abuse order. See 35 P.S. § 10190. On the magistrate’s notice form the phrase “Custody” was inserted in only one of the several references to the type of indirect criminal contempt offense charged. The other references were to contempt of a protection from abuse order.

On May 17,1989, the charge of indirect criminal contempt was dismissed based upon the trial court’s determination that there was no protection from abuse order in effect. The verdict form noted that a petition for a protection from abuse order was to be filed; it did not mention any amendment of the charge to assert indirect criminal contempt of the custody order under 42 Pa.C.S.A. 4135(b). The transcript of the May 17, 1989 hearing was not included in the record certified to this Court on appeal.

On May 19, 1989, a petition for a protection from abuse order was filed. While no interim relief was granted (35 P.S. § 10188), a hearing date was set for determination of the merits of the petition (35 P.S. § 10185).

On May 26, 1989, John Melvin failed to appear for the hearing at 10:00 a.m. as directed. No explanation having been made in advance for John Melvin’s failure to appear as ordered, the trial court elected to proceed on the petition for a protection from abuse order {see Pa.R.C.P. 218), and the charge of indirect criminal contempt of the custody order {see Pa.R.Crim.P. 1117). Rather than proceeding to hear evidence in support of the petition or on the substance of the contempt charge, however, the court instead incorporated by reference the proceedings before that court a week earlier on May 17, 1989. As noted above, the transcript of that hearing, if any was made, was not included in the record certified and transmitted to this Court on appeal. No further evidence was presented. (N.T. 5/27/89 at 2-4).

The trial court then granted the petition for a protection from abuse order. The court also found John Melvin in indirect criminal contempt of the custody order, but suspended sentence.

The transcript reveals that appellant arrived after these proceedings had closed; but, does not note the time he arrived. Moreover, while counsel for Eileen Melvin called John Melvin’s tardy arrival to the court’s attention, John Melvin did not address the court or make any remarks of record at that hearing. (N.T. 5/27/89 at 2-4). Though represented by counsel in prior and subsequent proceedings, no counsel appeared for John Melvin prompt, tardy, or otherwise on May 26, 1989.

No post-verdict motions were filed to either order. See Pa.R.C.P. 1905; Pa.R.C.P. 227.1-227.4; Pa.R.Crim.P. 1123. Cf. Lucia v. Lucia, 318 Pa.Super. 569, 465 A.2d 700 (1983) (failure to file timely post verdict motions waived challenge to the sufficiency of the evidence to support the granting of a protection from abuse order). No judgment confirming the verdict of the court in the Pa.R.C.P. 238 trial was entered by order of court or by praecipe of a party pursuant to Pa.R.C.P. 1905(b) and Pa.R.C.P. 227.4(l)(b). No direct appeal was attempted.

On June 30, 1989, thirty-four days after the protection from abuse order was granted, counsel for John Melvin filed a petition to open the judgment granting the petition from abuse order. The petition alleged that John Melvin had arrived at 10:03 a.m. (only three minutes late), and that the trial court abused its discretion in failing to re-open the proceedings to permit him to proceed with a defense. On July 3, 1989, the trial court denied the petition without issuing a rule to show cause why the order of May 26, 1989 should not be vacated and judgment opened.

On appeal, John Melvin contends that the trial court’s failure to re-open the proceedings when he arrived three minutes late, violates procedural and substantive due process mandates. In his brief to this Court, he acknowledged that the court had a right to proceed in his absence (Appellant’s Brief at 6, citing Pa.R.C.P. 218), and that its authority to open judgment was discretionary. Id. Nonetheless, he argued that the averments in his petition mandated issuance of a rule to show cause. However, he cited no authority for this proposition. Moreover, he in no way explained how either procedural or substantive due process rights were implicated. (Appellant’s Brief at 6-8).

In response, Eileen Melvin argued in her brief that the petition to open was not filed in a timely manner, and that no explanation was provided for the delay. She noted but did not address further another requirement, i.e. that the petition must set forth a meritorious defense to the default judgment. She also countered that John Melvin was thirty minutes late, rather than merely three.

The trial court, in its Pa.R.A.P. 1925(a) opinion, asserted two grounds for denying the petition. First, the trial court found no authority to open judgment in a protection from abuse matter when no post-verdict motions were filed and no direct appeal was taken from the order granting protection from abuse. Second, the trial court declined to open judgment based upon John Melvin’s failure to set forth good cause for his tardy appearance on May 26, 1989. (Trial Court Opinion at 2).

The appeal is now properly before this Court for disposition. We affirm on alternate grounds.

I. PROTECTION FROM ABUSE GENERALLY

The seriousness of domestic abuse is well recognized in this Commonwealth, and in fact has been examined and detailed by the Pennsylvania Attorney General’s Family Violence Task Force (AGFVTF) Report which was issued in January of 1989. See AGFVTF, Domestic Violence: A Model Protocol for Police Response, at 4-5 (Pa. 1989) (collecting and analyzing studies and statistics and making detailed recommendations). The serious problem of domestic abuse plainly presents grave challenges to society in general, and the criminal and civil justice systems in particular.

Pennsylvania has been a leading force in the reform of what is now recognized as the woefully inadequate “traditional” response to domestic violence. See AGFVTF Report, at 21-22. Both our Protection From Abuse Act and our Probable Cause Arrest Statute have been aptly characterized as “vanguard” reforms.

The provisions of the Protection From Abuse Act, and the amendments to that act by the Probable Cause Arrest Statute, as well as the various publicly and privately funded services provided to victims of domestic abuse were designed to ameliorate the inadequacies of the traditional approach to domestic violence. See 35 P.S. § 10181 et seq. They will be wholly ineffectual, however, if the police, the courts and counsel fail to fulfill their express, statutory obligations to assist victims of such abuse to pursue the benefits our “vanguard” reforms offer. See generally 18 Pa.C.S.A. § 2711(d); 35 P.S. §§ 10183.2; 10184(f); 10188(d); 10188.1; see also AGFVTF Report, supra, 33-35, 36, 41-46 & passim.

Here, despite the formal assertion of a violent criminal assault and subsequent menacing conduct, more than six years passed before a determination was made and relief was finally granted to Eileen Melvin for protection from abuse. In the interim, a custody order was apparently intended to take the place of a protection from abuse order. Beyond the absence of the vindicatirig/stigmatizing benefits intended to result from the issuance of a protection from abuse order, we note that the procedures and penalties for contempt of a custody order and those for contempt of a protection from abuse order differ dramatically. Compare 42 Pa.C.S.A. 4135(b) and 35 P.S. 10190; cf. Wagner v. Wagner, 387 Pa.Super. 246, 564 A.2d 162 (1989). Moreover, such remedies are not intended to be mutually exclusive; rather, the protection available .under the Protection from Abuse Act are in addition to, and not in substitution of, other remedies. See 35 P.S. § 10189.

We urge all involved in such cases to refer to the applicable statutes, procedural rules, and case law, regarding Pennsylvania’s vanguard reforms in the area of domestic abuse in deciding how to proceed in such cases. While more traditional remedies like those initially utilized here remain available to victim’s of domestic violence, we note that Pennsylvania’s vanguard reforms relating to domestic violence were enacted precisely because of the widely perceived inadequacies of the traditional remedies standing alone.

II. ABSENCE OF FINAL JUDGMENT

On May 26, 1989, the trial court entered an order granting Eileen Melvin’s Petition for Protection from Abuse following a trial conducted in John Melvin’s absence, under Pa.R.C.P. 218. Notwithstanding the subsequent conduct and assumptions of the trial court and the parties, the order entered on May 26, 1989 was not a final appealable order under the applicable rules of civil procedure.

Protection from abuse proceedings are governed by Pa.R. C.P. 1901 to Pa.R.C.P. 1905. See Pa. Const. Art. V, sec. 10 (constitutional authority to promulgate procedural rules); 35 P.S. 10189 (legislative authorization with respect to protection from abuse cases). Under Pa.R.C.P. 1905(a), the decision in a protection from abuse case must be made in accordance with Pa.R.C.P. 1038(b) and (c) which expressly authorizes the trial court to render its decision orally in open court and to direct the order to be transcribed and filed forthwith. Under Pa.R.C.P. 1905(b), the post trial proceedings in protection from abuse case are governed by Pa.R.C.P. 227.1 to 227.4 inclusive. It is with respect to the application of those rules that the parties were mistaken.

Review of the record, the briefs of the parties, and the opinion of the trial court reveals that all were under the mistaken impression that the decision issued May 26, 1989 pursuant to Pa.R.C.P. 1905(a) and Pa.R.C.P. 1038(b & c) was a final order. Under Pa.R.C.P. 227.4(l)(b), however, it is clear that before the decision of May 26, 1989 could become final and appealable, post-verdict motions, if any, had to be properly disposed or the time for filing such motions expired and it was necessary for the court to then direct entry of judgment or for one of the parties to file a praecipe for entry of judgment. In absence of the entry of a judgment under Pa.R.C.P. 1905(b) and Pa.R.C.P. 227.4, there is no final judgment granting protection from abuse.

Consequently, we conclude that the assumptions of the trial court and the parties to the contrary notwithstanding, there is as yet no final “protection from abuse order” judgment in this case. If and when, one of the parties shall praecipe for entry of judgment, then and only then, shall a final and appealable “protection from abuse order” judgment exist in this case.

The effect of the interlocutory order entered on May 26, 1989 is precisely the same an an interlocutory order under 35 P.S. § 10185(b); both provide interim relief pending entry of an appealable final judgment under Pa.R.C.P. 227.4. Significantly, however, it is the final judgment, and not either of the types of interlocutory orders, to which the one year durational limitation of 35 P.S. § 10186(b) applies. We note that it will be up to the trial court to decide, if and when a proper petition is filed, whether to exercise its discretion to modify its one year protection order, based upon the substantial delay in the entry of a final judgment in this case and/or any other relevant circumstances. 35 P.S. § 10185(b) (protection orders may be modified at any time upon petition).

None of these facts affect this Court’s jurisdiction in the instant case. This appeal was taken from an order denying a petition to issue a rule to show cause why the protection from abuse order of May 26, 1989 should not be open or struck. Such orders are interlocutory, but nonetheless appealable of right. Pa.R.A.P. 311(a)(1).

However, as no final “protection from abuse order” judgment has been entered, as yet, in this case, it follows necessarily that the trial court could not have abused its discretion in refusing to issue a rule to show cause why a non-existent judgment should not be opened. Final judgments, and not interlocutory orders, are subject to such petitions. In this procedural sense the petition for the rule to show cause was premature, though substantively the request for a new trial on equitable grounds after expiration of the time for post-verdict motions was belated (discussed infra at Part III).

When an appeal is improvidently taken prior to entry of final judgment, ordinarily this Court will direct the appellant to praecipe judgment and notice of appeal will be treated as being filed on the date judgment is entered. See Pa.R.A.P. 301(a); Pa.R.A.P. 905(a); cf. Seay v. Prudential Ins., 375 Pa.Super. 37, 543 A.2d 1166 (1988). Here, however, the appeal was taken from the collateral order denying issuance of a rule to show cause why an interlocutory order (mistakenly believed to be a final judgment) should not be opened. At this late date, even if a praecipe were to be filed and judgment were to be entered, such events could not affect, retrospectively, the propriety of the trial court’s order denying the petition for a rule to show why an interlocutory order, mistakenly believed to be a final judgment, should not be opened. Hence, we have no occasion to direct appellant to praecipe judgment in this case.

The foregoing provides adequate grounds upon which to affirm the trial court. However, we deem it appropriate to set forth additional grounds upon which the denial of appellant’s petition could have been sustained, had the petition been filed and denied after a final judgment had been entered in accordance with Pa.R.C.P. 1905(b) and Pa.R.C.P. 227.4.

III. INAPPLICABILITY OF THE RULE TO SHOW CAUSE

John Melvin filed a rule to show cause why an interlocutory order, i.e. the grant of a protection from abuse order, should not be opened. The trial court found that such a rule was not a proper vehicle to seek such relief because timely post-verdict motions had not been filed. We agree.

John Melvin argued that under Wood v. Garrett, 353 Pa. 631, 46 A.2d 321 (1946) and Horning v. David, 137 Pa.Super 252, 8 A.2d 729 (1939), a trial court may grant a new trial in its discretion when, after a trial in absence of a non-appearing defendant, cause is shown to open the judgment to permit the defense. He argued further that a rule to show cause was the proper vehicle to bring the issue before the court in order to have the court exercise its discretion. He cited Carey v. Carey, 121 Pa.Super. 251, 183 A. 371 (1936), in support of that proposition. Review of those authorities, however, reveals that they do not support John Melvin’s claim.

In Wood v. Garrett, supra, a defendant filed a timely motion for a new trial following a trial conducted in her absence under Pa.R.C.P. 218. Our Supreme Court affirmed the denial of the request for a new trial finding that her excuse for non-appearance was not supported by the record, and alternatively, because no meritorious defense appeared. Here, no timely post-verdict motion for a new trial was filed. Moreover, the entire tenor of the opinion in Wood v. Garrett is directly contrary to John Melvin’s claim on appeal, and provides no support for the proposition urged by him on appeal.

Both Horning v. David, supra, and Carey v. Carey, supra, involve orders granting a rule to show cause why judgment entered in the petitioner’s absence should not be opened. However, on close inspection neither case supports John Melvin’s claim here.

In Horning v. David, supra, the judgment was opened upon timely demonstration that summons had not been served on the defendant until after the verdict against him had been rendered. The ground stated as the basis upon which to open was inadequacy of notice, which sought in actuality to strike the judgment as void, rather than to have it opened as a matter of grace.

Likewise, in Carey v. Carey, supra, a court granted a rule to show cause why a divorce decree should not be struck as void when no notice was given to the wife of the divorce proceedings, and when the husband had committed extrinsic fraud to prevent his wife from learning of the divorce proceedings so as to defend. Again, the rule sought to strike the judgment as being void, rather than to open judgment as a matter of grace.

The only other case which we have discovered on this obscure point is Mazi v. McAnlis, 865 Pa. 114, 74 A.2d 108 (1950). In Mazi, plaintiff’s counsel, but not plaintiff, appeared at the time appointed for trial. The trial court then ordered that a directed verdict be entered for the defendant. In timely post verdict motions, new counsel moved to have the directed verdict stricken, and requested a new trial. The directed verdict was struck, as a judgment non pros was the appropriate disposition for the failure of the plaintiff to proceed at the time appointed for trial. Because it was uncontested that plaintiffs failure to appear was the result of plaintiffs sincere but erroneous belief that a continuance had been granted as the result of his discharge of prior counsel, plaintiff was deemed not to have been at fault. The trial court, consequently, exercised its discretion to grant a new trial on equitable grounds. Our Supreme Court, noting the trial court’s broad discretion to grant new trials, found no abuse of discretion and affirmed.

In Mazi v. McAnlis, as in Wood v. Garrett, the question of whether the trial court should exercise its discretion to grant a new trial to permit defense arose in the context of a timely motion for a new trial, rather than a petition to open or a rule to show cause why judgment should not be opened. Such was not the case here, as no timely post-verdict motions were filed.

From the foregoing, we conclude the following. Judgment entered following a trial held under Pa.R.C.P. 218, but without proper notice to one of the parties, may be struck as void on proper post-judgment petition. Horning v. David, supra; Carey v. Carey, supra. When a defendant receives proper notice and nonetheless fails to appear or provide a satisfactory excuse for non-appearance at, or prior to, the time set for trial, the trial may proceed properly in the defendant’s absence. Wood v. Garrett, supra; Pa.R.C.P. 218. Following an adverse verdict in such proceedings, a defendant may file post-verdict motions which may include a request for a new trial on equitable grounds similar to those which permit the opening of a default or confessed judgment. Mazi v. McAnlis, supra; Wood v. Garrett, supra; Pa.R.C.P. 1905(b); Pa.R.C.P. 227.1(a)(1). The failure to file-post-verdict motions waives any claims which could have been raised in such motions. Pa.R.C.P. 1905(b); Pa.R.C.P. 227.1(b)(2); see e.g. Lucia v. Lucia, supra. Moreover, as a general rule, a rule to show cause may not be used in substitution for a remedy or procedure which provides the same relief sought by the rule. See generally 3 Standard Pennsylvania Practice 2d §§ 15.16, 15.39 (1981 & 1989 supp.) (collecting cases). Hence, at least in the circumstances presented here, a rule to show cause why judgment should not be opened would not be a proper vehicle by which to pursue appellant’s request for a new trial on equitable grounds, as such relief could have been requested in a timely post-verdict motion.

Like the trial court, we find no authority for John Melvin’s implicit assumption that after failing to appear at trial, and failing to seek a new trial as a matter of grace in timely post-verdict motions, a defendant may nonetheless compel the exercise of a trial court’s presumed discretion to open a then final judgment via a rule to show cause why judgment should not be opened asserting equitable grounds. Hence, we agree with the trial court that a rule to show cause was not a proper vehicle for pursuing the relief sought.

In summary, we emphasize that, under the circumstances presented here, relief must be sought, if at all, by a timely post verdict motion for a new trial assigning equitable grounds, which would then be left to the sound discretion of the trial court. When, as here, there was no defective notice giving rise to grounds to strike, we find allowance of a post-verdict motion for a new trial to be a more than sufficient avenue for such relief, and find no reason, as well as no authority, to add another avenue of relief such as attempted here.

IV. INADEQUACY OF THE PETITION FILED

We deem it appropriate to note as well, the inadequacy of the petition for a rule to show cause filed in this case. The defects were multiple.

Assuming, arguendo, that in exceptional circumstances (e.g. had an unrepresented defendant been in a coma from the time set for trial through the period for filing post-verdict motions) a rule to show cause why judgment should not be opened could proceed in a manner similar to that followed in cases seeking to open a default judgment, the petition for issuance of a rule to show cause would still properly be refused if submitted in the same form as was the petition here. The petition for the rule filed in this case was materially inadequate on its face.

Even under Pa.R.C.P. 2959, a petitioner seeking to open a default judgment must establish prima facie grounds to open judgment before a rule to show cause may issue to compel a response. Pa.R.C.P. 2959(b). Such a prima facie showing of entitlement must include a demonstration that:

1) the petition to open was timely filed;

2) the default can be reasonably explained; and,

3) facts in support of a proper defense are alleged.

See Schultz v. Erie Ins. Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984); Zellman v. Fickenscher, 452 Pa. 596, 598, 307 A.2d 837, 838-39 (1973).

The petition to open in this case was not filed until 34 days after the order sought to be opened (which was erroneously believed to be a final judgment) was entered. There was no explanation whatsoever provided for why the petition to open was not filed in a more timely manner. This delay was unreasonable, given the fact that the petitioner knew of the order sought to be opened the day it was entered. See Zellman v. Fickenscher, supra. We note that the transcript of the hearing on May 26, 1989, fails to disclose any oral petition to open, or any statement whatsoever by John Melvin to the trial court at that time. (N.T. 5/26/89 at 4-5).

Whether the tardiness was three minutes as John Melvin asserts, or thirty minutes as Eileen Melvin responds, is of no consequence. The critical fact with respect to the second prong of the test set forth above, is that, to date, John Melvin has never offered even the barest semblance of an explanation for his tardiness. See Schultz v. Erie Ins. Exchange, supra. We note that our Supreme Court has strongly suggested that even ten minutes tardiness in a civil action could properly result in a loss of rights by parties who fail to be “obedient” to the trial court’s scheduling orders. See Commonwealth v. Carson, 510 Pa. 568, 572, 510 A.2d 1233, 1234 (1986) (contrasting civil and criminal matters).

Finally, the petition’s only reference to the existence of a meritorious defense is the bare assertion, verified on “information and belief,” that “defendant did not commit the acts alleged in plaintiff’s petition.” While John Melvin’s unsworn verification on information and belief constitutes an “affidavit” as that term is defined in Pa.R.C.P. 76, such an affidavit would provide an insufficient basis to warrant the issuance of a rule to show cause why final judgment should not be opened.

Where a trial has been conducted and a verdict rendered, it would be anomalous to require less to open judgment, than would be required to resist a motion for summary judgment, i.e. an affidavit on personal knowledge demonstrating competent evidence to support the averments in opposition to summary judgment with admissible evidence. Cf. Pa.R.C.P. 1035(d). Such affidavits serve essentially as offers of proof. There would be no reason to even require a response to a petition to open a judgment entered following a trial under Pa.R.C.P. 218, unless an adequate proffer had been made. Here, the proffer made was plainly inadequate.

John Melvin asserted that he:

has alleged enough facts in his Petition to establish the trial court’s jurisdiction over the matter. Thus, a Rule to Show Cause must issue as a matter of course and John Melvin will then have the opportunity to present his case, i.e. reasons for tardiness, defense on the merits, etc. The trial court can then exercise its discretion in granting or denying the relief requested in John Melvin’s .Petition.

A prima facie demonstration of grounds to open judgment is an indispensable prerequisite to even the issuance of a rule to show cause in a default case where no trial was conducted. Cf Pa.R.C.P. 2959(b). Surely, no less could be required following a trial conducted under Pa.R.C.P. 218. Indeed, to establish sufficient grounds for issuance of a rule to show cause to open a Pa.R.C.P. 218 judgment, the facts asserted in the petition not only would have to establish prima facie entitlement to the relief sought (e.g. opening of judgment), but would also have to be supported by at least an affidavit of the petitioner or another witness, on personal knowledge, in support of those assertions. See 3 Standard Pennsylvania Practice 2d 15:40 (1981 & 1989 supp.) (noting that a petition for a rule to show cause must be supported by affidavits) (collecting cases); cf. Pa.R.C.P. 1035(d).

The petition for the rule filed here failed to aver facts establishing a prima facie showing of entitlement to the relief sought (i.e. the opening of judgment), and the averments made in the petition were not accompanied by an adequate supporting affidavit. Hence, even if the rule had been filed after judgment was entered, and even if the issuance of a rule were permissible in such a case, the petition for a rule to show cause would still have been denied properly here.

CONCLUSION

Based upon the foregoing, we find no merit in John Melvin’s appeal.

Order Affirmed.

DEL SOLE, J., concurred in the result.

      . We note that John Melvin has not raised an objection to the trial court's decision to proceed, or the manner in which it proceeded, as to either matter in this appeal. Particularly, we note his acceptance of the characterization of the proceedings as having been conducted under Pa.R.C.P. 218, and the absence of any challenge to adequacy of the proceedings in that regard.

      . We note that the record does not contain an amended complaint or other indication that the charge improvidently brought under 35 P.S. § 10190 was replaced by a proper charge under 42 Pa.C.S.A. § 4135(b). However, as the contempt conviction and suspended sentence were not the subject of this appeal, such documents would not necessarily be included in the record transmitted to this Court, even if they had been properly filed and included in the record in the trial court.

      . We note that the petition of June 20, 1989 in no way challenged the trial court’s finding that John Melvin was in indirect criminal contempt of the custody order, or the suspended sentence imposed upon that conviction. We, therefore, have no occasion to consider the procedural or substantive correctness of that aspect of the proceedings.

      . AGFVTA Report, at 21-22; Merwine, Pennsylvania’s Protection From Abuse Act, 91 Dickinson L.Rev. 805, 805-32 (1987); Quinn, Ex Parte Protection Orders, 58 Temple L.Q. 843, 843-72 (1985); Sanson, Spouse Abuse: A Novel Remedy For a Historic Problem, 84 Dickinson L.Rev. 147, 147-70 (1979); Note, Domestic Relations—The Protection From Abuse Act, 51 Temple L.Q. 116, 116-25 (1978); Schickling, Relief For Victims of Intra-Family Assaults—The Pennsylvania Protection From Abuse Act, 81 Dickinson L.Rev. 815, 815-21 (1977); see generally Triantafillou, Massachusetts: New Legislation to Help Battered Women, 27 Judges Journal 20-23, 50-52 (summer 1988); Dutton, The Criminal Justice Response to Wife Assault, 11 Law & Human Behavior 189, 189-206 (1987); Bascelli, A Cry for Help: An Analysis of Wife Abuse, 13 Journal of Psychiatry & Law 165, 165-93 (spring/summer 1985).

      . A judgment entered granting protection from abuse remains in effect for the time specified in the judgment which cannot exceed one year. See 35 § 10186(b). Such orders may only be extended beyond the period specified in the initial judgment upon a finding of contempt of the initial judgment, in which case the protection granted by the initial judgment may be extended for a period of up to one year. See 35 P.S. §§ 10190(b); 10186(b); cf. Phil.Co.P.F.A. Rule 18. Importantly, similar relief, not subject to the durational limitations of 35 P.S. § 10186(b), may be sought under 23 P.S. § 401(c); Pa.R.C.P. 1910.25; Pa.R.C.P. 1915.13. There is no election of remedies in this respect. 35 P.S. § 10189.

      . RULE 1905. DECISION. POST-TRIAL RELIEF.
      (a) The decision of the court shall be governed by Rule 1038(b) and (c).
      RULE 1038 TRIAL WITHOUT JURY.
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      (b) The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion.
      (c) The decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing. The trial judge shall render his decision within seven (7) days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity.

      . RULE 1905. DECISION. POST-TRIAL RELIEF.
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      (b) Post-trial relief shall be governed by Rules 227.1 to 227.4 inclusive.

      RULE 227.4 ENTRY OF JUDGMENT UPON PRAECIPE OF A PARTY
      In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall, upon praecipe of a party:

      (1) if no timely post-trial motion is filed or if a waiver in writing of the right to file post-trial motions signed by all parties has been filed,
      (a) enter judgment upon the verdict of a jury,
      (b) enter judgment upon the decision of a judge following a trial without jury, or
      (c) enter the decree nisi as the final decree; or
      (2) enter judgment when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so.
      (Emphasis added).

      . The decision on May 26, 1989 involved the entry of an interlocutory order. That order was and remains enforceable pending entry of final judgment upon praecipe, like any other interlocutory order which may be enforced by contempt proceedings. That the delay in filing praecipe for judgment in this case will result in the effective extension of the protection from abuse order beyond the time it would have been in effect had a timely praecipe been filed creates no particular equity in this case, as John Melvin had as much right and authority to praecipe judgment in this case as did Eileen Melvin. Pa.R.C.P. 227.4(l)(b).

      . While there is abundant authority regarding the manner in which a default or confessed judgment should be opened, we do not find judgment entered following a trial in the defendant’s absence under Pa.RX.P. 218 to be sufficiently analogous to warrant reliance upon such authorities.