author: HESTER, Judge:

text:
    580 A.2d 388
    COMMONWEALTH of Pennsylvania v. Robert J. BRICKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 23, 1990.
    Filed Sept. 27, 1990.
    Petition for Allowance of Appeal Denied Feb. 12, 1991.

      Dwight-Jared Smith, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for the Com., appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from the judgment of sentence of six to twenty-three months imprisonment imposed by the Dauphin County Court of Common Pleas on November 27, 1989. Appellant, Robert J. Bricker, was convicted by a jury on November 4, 1988, of corruption of a minor. In this appeal he alleges that there is insufficient evidence to support the conviction in light of his acquittal of the offenses of indecent assault and involuntary deviate sexual intercourse, which were specified in the information filed against him as the corrupting acts supporting the charge of corruption of a minor. We disagree and affirm.

The trial court summarized the facts as follows:

The charges stem from incidents which occurred over a two year period of time when Robert Bricker began living with the mother of the victim, eleven year old April Mateer.
April testified that Bricker touched her where she did not want to be touched. She stated that when people were at home he would pull the zipper down on her pants and do whatever he wanted to. More specifically, he would pull down his zipper and touch her with his “private”. This happened more than once.
When others were not present in the home, he would take off all of her clothes and would touch her vagina and bottom with “his private, his hand and his tongue.” He would rub both his penis and tongue against her vagina. He also tried to insert his penis into her behind. She stated that when he used his private “it got fatter and some kind of liquid came out.” These acts also occurred more than once. April also stated that Bricker requested that she put her mouth on his private. She refused and instead “I spit on my hand and put it on his private.”
Bricker told April that when she turned 20 he would “pop her cherry.”

Trial court opinion, 4/10/90, at 2-3 (citations to transcript omitted).

Appellant acknowledges that this court, in Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988), sustained a conviction for corruption of a minor even though the defendant had been acquitted of two counts of indecent assault based upon the same acts underlying the corruption of a minor charge. However, appellant contends Anderson is distinguishable from the instant case because the information therein identified specific acts as the basis for the corruption of a minor charge, not simply the statutory offenses, as in the present case.

Appellant notes that the jury found him not guilty of involuntary deviate sexual intercourse and indecent assault. He contends that since these were the only acts enumerated by the Commonwealth in support of the corruption of a minor charge in the information, “it is apparent that the jury considered evidence other than the specific acts of corruption alleged by the Commonwealth [in the information] in reaching its verdict.” Appellant’s brief at 7. We disagree.

Initially, we note that consistency in verdicts between different counts of a criminal information is unnecessary. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); see also United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). As we stated in Commonwealth v. Glendening, 262 Pa.Super. 357, 361, 396 A.2d 793, 795 (1979), “The rationale for this rule rests in the jury’s sole prerogative to decide that conviction on some counts will provide sufficient punishment to acquit on the remaining counts.” Furthermore, “an acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Jackson, 385 Pa.Super. 401, 411, 561 A.2d 335, 340 (1989), quoting Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971).

In Commonwealth v. Anderson, supra, we reiterated that the law requires only that there be sufficient evidence to support the convictions which the jury has returned. In reviewing a challenge to the sufficiency of the evidence we determine

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990); Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989).

Corruption of a minor, 18 Pa.C.S. § 6301, provides, in part, that “whoever, being the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years, ... is guilty of a misdemeanor of the first degree.” (Emphasis added). Appellant clearly was on notice that he was charged with performing acts which also comprise the offenses of involuntary deviate sexual intercourse and indecent assault. Moreover, there clearly was sufficient evidence presented that appellant performed a multitude of acts that would corrupt a minor.

In Commonwealth v. Anderson, supra, we found that the conviction of corruption of a minor was supported by the introduction of sufficient evidence for specific acts done by the defendant. These acts, not indecent assault, formed the basis of the corruption of a minor charge. We stated that the trial court had erred in “extracting from the jury’s general verdict of not guilty of indecent assault, the specific finding that the underlying act was not committed.” Id., 379 Pa.Super. at 592, 550 A.2d at 808.

[A]n acquittal on indecent assault cannot be interpreted to mean as a matter of law that there was insufficient evidence to establish that the underlying acts in fact occurred.
This is especially so because the crime of indecent assault would have required proving not only that the underlying act occurred, but that the victims did not consent to the conduct.

Id., 379 Pa.Super. at 592-93, 550 A.2d at 809.

The crimp of indecent assault requires the Commonwealth to prove lack of consent. 18 Pa.C.S. § 3126. “Conversely, consent is never an issue for proof of a corruption of minors charge____” Thus, in Anderson, although the jury returned a verdict of not guilty of indecent assault by committing acts of cunnilingus, we could not determine if the jury decided that the acts did not occur, or if the acts occurred but the Commonwealth failed to prove that the victims did not consent to them.

Similarly, in the present case, we cannot determine if the jury decided that the acts comprising involuntary deviate sexual intercourse and indecent contact did not occur, or if some acts occurred and the child exaggerated, or if the jury simply was exercising leniency. Since we cannot determine why the jury returned a verdict of not guilty as to involuntary deviate sexual intercourse and indecent assault, we cannot say as a matter of law that the jury believed that the acts did not occur. Commonwealth v. Anderson, supra. This verdict is supported by the evidence and may not be reversed based upon the grounds advanced by appellant.

Judgment of sentence affirmed.

      . In Anderson, the information charged, in pertinent part:
      COUNT #4: Being the age of 18 years or older, corrupt or tend to corrupt the morals of ... in that he did perform cunnilingus on her two times, and placed his hands on her intimate parts on several occasions....
      CORRUPTION OF MINORS (M-l).

        Id., 379 Pa.Super. at 591, 550 A.2d at 808.

      . In the instant case, the complaint filed against appellant states, in pertinent part:

        CORRUPTION OR [sic] MINORS

      The defendant did ... corrupt April Mateer ... in that he did have sex with her and did perform oral sex on her.
      The information filed against appellant states, in pertinent part: THIRD COUNT:

      did, being of the age of 18 years and upward ... corrupt or tend to corrupt the morals of a child____
      Child or children: April Mateer
      Age(s): 11 years old
      Acts of Corruption: The defendant engaged in involuntary deviate sexual intercourse with April Mateer.


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    580 A.2d 390
    Deane R. KOZICH v. David T. KOZICH, Appellant.
    Superior Court of Pennsylvania.
    Argued June 26, 1990.
    Filed Sept. 26, 1990.
    David J. Weaver, Johnstown, for appellant.
    Andrew D. Gleason, Johnstown, for appellee.

      Before McEWEN, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

This appeal presents the issue whether the disability portion of a tort settlement remains separate property of the injured spouse for purposes of equitable distribution. The trial court, by Order dated November 22, 1989, adopted the recommendations of the master, which, inter alia, determined that the settlement proceeds were marital property, and ordered appellant/husband David T. Kozich to pay to appellee/wife $320,000. We affirm.

The parties were married on October 16, 1976 and had two minor children who now reside with the wife. On March 20, 1982, while in the course of his employment as a cable television installer in Houston, Texas, appellant was electrocuted, resulting in the amputation of both his arms approximately two inches below his elbows. Consequently, the Koziches filed suit in Houston against Houston Lighting and Power and Houston Treetop Apartments, Inc. On June 27, 1984, the Koziches and the defendants negotiated a settlement, the proceeds of which ‘ are now at issue on appeal. The parties eventually separated and on April 7, 1987, appellee filed a complaint in divorce and secured an Order for spousal and child support in the interim. The parties agreed to submit the issues of equitable distribution, counsel fees and costs and alimony to a master for hearing. Master’s hearings were held August 12, 1988 and September 8,1988. The master’s report was filed August 28,1988, from which appellant filed exceptions. The court entered the November 22, 1989 Order from which this appeal followed.

On appeal, appellant relies on this Court’s prior decision in Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988), wherein a panel of the Superior Court declined to hold that true disability payments are marital property subject to equitable distribution. The Court went on to note, however, that where it can be shown “that a portion of the employee spouse’s disability pension is representative of retirement benefits, the amount received by the disabled employee in lieu of retirement benefits remains marital property subject to distribution.” Id., 374 Pa.Superior Ct. at 234, 542 A.2d at 582. Appellant contends there is no evidence of record that the settlement in the instant case was part of a retirement benefit, but instead was plainly for loss of income earning ability. While we agree with the earlier decision in Ciliberti, we are not prepared to extend the rationale of that case to the circumstances of the case at bar. Ciliberti involved a retirement/disability pension arising out of contract, whereas this case involves a liquidated amount arising from a tort action settlement. As such, there is no basis upon which a finding can be made that the settlement is either a disability or retirement fund. Since the settlement compromised all claims before the jury reached a verdict, there was no specification as to which portion might have been awarded to the wife for loss of consortium, thus her claim was merged into the total settlement, further distinguishing this case from the division in Ciliberti.

We are guided instead by our decision in Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), a divorce action similar to the case instantly in that it concerned the proceeds of a tort claim settlement obtained by the parties. The court in Platek held that settlement proceeds are not excepted from marital property.

Section 401(f) of the Divorce Code, unchanged by amendment in 1988, provides:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401.

Section 401(e)(1) excepts “[property acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.” Id. The question presented instantly is similar to that presented in Platek:

[WJhether one’s physical well-being constitutes “property acquired prior to the marriage____” We conclude that it does not.
In construing the phrase, “property acquired prior to the marriage____,” we look to the everyday, popular meaning of those words. Treaster v. Union Township, 430 Pa. 223, 242 A.2d 252 (1968); Wheatcroft v. Auritt, 226 Pa.Super. 118, 312 A.2d 441 (1973); 1 Pa.C.S.A. § 1903(a). Suppose one were to lose a leg in an accident, and, in settlement of the claim, receive $100,000. One would not in everyday speech say that the $100,000 was “[property acquired in exchange for property [the lost leg] acquired prior to [one’s] marriage
The legislative history of the Divorce Code of 1980 also persuades us that in defining “marital property,” the Legislature did not intend to except the proceeds of the settlement of a personal injury claim. The House version of Section 401(e) did except settlement proceeds. In defining “marital property,” it excepted “[p]roperty acquired with, or received in exchange for property acquired with____ payments received as payment for the loss of impairment of parts or functions of the body of the party who received the payment.” Hearings on H.B. 640 Before the Pennsylvania House of Representatives, 1979 Pa.LegJ. 1968. However, the House version also excepted from marital property “property acquired in exchange for property acquired prior to the marriage----” It is therefore clear that the House did not intend this latter section to except settlement proceeds from marital property, for then there would have been no need for the former section. See In re Dorrance’s Will, 333 Pa. 162, 3 A.2d 682 (1939); Macfarland v. Unemployment Compensation Board of Review, 158 Pa.Super. 418, 45 A.2d 423 (1946); Appeal of Dixon, 138 Pa.Super. 385, 11 A.2d 169 (1940).
A further feature of the legislative history confirms this conclusion. This is that the Senate rejected the House version. Hearings on H.B. 640 Before the Pennsylvania Senate, 1980 Pa.Leg.J. 1364-65. Although the House wanted to except from marital property both settlement proceeds and “property acquired prior to marriage,” the Senate wanted to éxcept only “property acquired prior to marriage.” As enacted, the Divorce Code reflects the Senate’s view. It follows that settlement proceeds are not excepted from marital property. McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 154 A.2d 497 (1959) (failure to enact proposed amendment to act held significant in construing act).

Platek, supra at 21-23, 454 A.2d at 1061-62 (footnote omitted).

The Master’s Report in the case sub judice also states:

[Appellant] contends that a disability portion of the settlement is not marital property subject to distribution under Ciliberti v. Ciliberti, [374 Pa.Super. 228] 542 A.2d 580 (1988). There was no evidence as to what portion, if any, represented disability payments. Further, the worker’s compensation carrier was reimbursed before the parties received their settlement and said amount cannot be added back. Testimony revealed that settlement was reached before the jury completed deliberations and the release document does not distinguish the possible claims settled, but it simply notes compromises of all claims. The proceeds and not the separate claim settlements represented in the total constitutes marital property.
Ciliberti, id. is easily distinguished because it dealt with whether the retirement component of disability payments was subject to division and there is no such issue in the instant case. Further, no portion of the Kozich settlement was designated for pure disability payment nor was such evidence offered.
Compensation for [appellant’s] loss of well being occasioned by a third party’s negligence does not constitute a property interest exempt from equitable distribution though said well being was acquired before the marriage. Platek, id.

The trial court found, as do we, that the Master correctly determined the settlement proceeds to be marital property. Therefore, appellant’s claims in this regard are without merit.

Appellant’s final argument is the trial court erred in awarding $320,000 to a noninjured spouse out of a total amount available for distribution of $905,000. The equitable distribution of marital property is within the sound discretion of the trial court, whose decisions shall not be disturbed on appeal absent an abuse of that discretion. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983); see 23 Pa.S. § 401(d).

From our thorough review of the record, we find the Master properly considered the enumerated relevant factors of section 401(d) of the Divorce Code, and we discern no abuse of the trial court’s discretion in accepting the Master’s finding and recommendations. Accordingly, appellant’s contention is without merit and we affirm the judgment of the trial court.

Judgment affirmed.


author: PER CURIAM:

text:
    580 A.2d 393
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald William BOYD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1990.
    Filed Sept. 17, 1990.

      Toney Sangiamo, Harrisburg, for appellant.
    Roy A. Keefer, Asst. Dist. Atty., Gettysburg, for Com., appellee.
    Before WIEAND, MONTGOMERY and BROSKY, JJ.
   PER CURIAM:

Appellant, Ronald William Boyd, was convicted by a jury of escape, unlawful restraint, false imprisonment, and simple assault. Post-trial motions were denied and appellant was sentenced to one (1) to seven (7) years imprisonment and a consecutive term of five (5) years probation. This direct appeal followed. We affirm.

Appellant raises three issues on appeal: (1) whether all charges should have been dismissed because appellant’s Sixth Amendment rights had been violated; (2) whether the charges should have been dismissed because appellant’s Fourth Amendment rights had been violated; and (3) whether the evidence was insufficient to support the conviction for unlawful restraint.

Appellant’s first two issues are based upon an incident which occurred while he was incarcerated. Appellant attempted to commit suicide while incarcerated. Pennsylvania State Trooper Kenneth A. Zeisloft investigated the attempted suicide. During a routine search of appellant’s cell, Trooper Zeisloft found a letter taped to the wall. Trooper Zeisloft removed the letter because he thought it was a suicide note. The letter was addressed to appellant’s attorney and contained details of the crimes. Trooper Zeisloft took the letter to the evidence locker in the Gettysburg Barracks. He also made copies of the letter for the investigating officer, Trooper Dennis Peck. An evidentiary hearing was conducted and the trial court concluded that appellant did not have an expectation of privacy in this cell and the letter was lawfully seized.

Appellant first claims that confiscation of the letter was an intentional governmental intrusion to the attorney-client relationship thus, violating the Sixth Amendment right to counsel. Appellant’s reliance on the case of Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), and cases interpreting Weatherford is misplaced. In all of appellant’s cited cases there was an intentional intrusion upon attorney-client communications.

In the instant case, there was not an intentional intrusion. The facts of the case illustrate that appellant’s attempted suicide initiated the investigation. Moreover, the letter was not used by the prosecution during the trial. We fail to see how appellant has been prejudiced.

Furthermore, the attorney-client privilege is confined to confidential communications. 42 Pa.C.S. § 5916. We cannot say that appellant intended this letter to be confidential since he hung it up on his cell wall. See Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (the privilege does not apply to communications which were publicly disclosed at the direction of the client because they are not considered confidential).

Appellant next claims that the search of his cell was a violation of his Fourth Amendment protection against unreasonable search and seizure. The search in question took place in appellant’s prison cell. The Fourth Amendment protection against unreasonable searches does not apply to prison cells. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The limitations of one’s Fourth Amendment freedoms are justified in the prison environment in that officials may search prisoners and seize contraband or evidence of suspected criminality. Commonwealth v. Wallington, 238 Pa.Super. 427, 357 A.2d 598 (1976). In the instant case, appellant had attempted to commit suicide and the state had a legitimate interest in conducting a routine search of the cell and appellant’s claim must fail.

Appellant’s final claim is that the evidence was insufficient to sustain the conviction for unlawful restraint. Appellant contends that the victim was not exposed to actual serious bodily injury. When reviewing sufficiency claims, the test is whether, viewing the evidence, with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could reasonably have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978).

The evidence revealed that on the morning of July 20, 1988, the victim, Dorothy Schoff, left her home accompanied by a male friend. When she walked outside, appellant was driving past in his car. Ms. Schoff and her friend proceeded to get in her car and drive into Gettysburg. Appellant followed them the whole time. Ms. Schoff pulled off to the side of the road and appellant did the same. Ms. Schoff’s friend told appellant to stay away. All parties returned to their vehicles. Ms. Schoff dropped her friend off at work and proceeded to go home. For a while appellant was not following her but eventually he caught up with her.

While Ms. Schoff was stopped at an intersection appellant hit his vehicle against the side of Ms. Schoff’s vehicle. As appellant approached Ms. Schoff’s vehicle, she immediately locked all of the doors. Appellant kicked in the passenger side window, went in the vehicle through the broken window and proceeded to attack Ms. Schoff. She attempted to get away but appellant physically prevented her escape. Appellant threw Ms. Schoff in the backseat area of the car and drove the car away. Appellant kept Ms. Schoff against her will for approximately eleven days until he was finally apprehended in Mansfield, Pennsylvania.

Given the evidence recited above it is clear that the victim was threatened by appellant, struck by him, and forcibly resisted his actions. This evidence was clearly sufficient to sustain the conviction. Commonwealth v. Moody, 295 Pa. Super. 106, 441 A.2d 371 (1982); Commonwealth v. Belgrave, supra.

Judgment of sentence affirmed.

      . The other cases appellant cites to are United States v. Levy, 577 F.2d 200 (3rd Cir.1978), and United States v. Constanzo, 740 F.2d 251 (3rd Cir.1984).


author: BECK, Judge: POPOVICH, Judge,

text:
    580 A.2d 395
    Lawrence HOROWITZ, Alan Horowitz, and Bertram M. Horowitz, Co-Partners, T/A Young Adjustment Company, Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE CO. and John’s Chevrolet, Inc.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Decided Sept. 10, 1990.

      Marck C. Rifkin, Bryn Mawr, for appellants.
    Patricia A. Heenan, Elkins Park, for appellee.
    Before WIEAND, BECK and POPOVICH, JJ.
   BECK, Judge:

In this appeal we consider whether the trial court erred in denying the appellant’s petition to amend its answer to the appellee’s counterclaim to assert the statute of limitations as an affirmative defense, more than four and a half years after the appellant filed its original answer.

On April 22, 1981, fire damaged the premises of John’s Chevrolet (“John’s”) on Frankford Avenue in Philadelphia. Several days later; John’s engaged the services of Lawrence Horowitz, Alan Horowitz and Bertram Horowitz, co-partners t/a Young Adjustment Company (“Young”), to aid them in adjusting their insurance claims which resulted from the fire. Thereafter, John’s insurance carrier, Universal Underwriters Insurance Company (“Universal”), John’s alleges, failed to perform on its insurance contract with John’s based upon Young’s failure to complete a sworn proof of loss statement as required by the policy Universal had issued to John’s.

Thereafter, on June 18, 1984, Young filed a complaint against John’s in the Court of Common Pleas of Philadelphia County for unpaid commissions Young alleged it was due from the adjustment of the aforementioned fire loss. On August 31, 1984, John’s filed its Answer to Plaintiffs’ complaint with a new matter and a counterclaim, seeking damages it alleged resulted from Young’s negligence and breach of contract in performing its duties as an adjuster.

On October 18, 1984, Young filed its answer to Johns’ counterclaim, in substance denying the allegations. On June 1, 1989, more than four and a half years later, Young petitioned for leave of court to amend its answer to the counterclaim to add the bar of the statute of limitations as an affirmative defense. The trial court denied Young’s request to amend its answer. Thereafter, Young filed a petition for reconsideration. After granting this reconsideration petition, the trial court again rejected Young’s amendment request. Young appeals from both trial court orders denying its amendment request.

The appellee filed a motion to quash in response to the appellant’s filing of its notice of appeal. In a per curiam decision, this court entered the following order: “appellee’s motion to quash the appeal ... is denied without prejudice to the parties rights to brief and argue the jurisdictional propriety of this appeal before the panel that will hear argument on the merits of this matter.” Per Curiam Order, October 24, 1989. While in their briefs to this court neither party has raised the appealability of the trial court’s denial of the appellant’s amendment petition, we note that we may consider appealability issues sua sponte. Richards v. Trimbur, 374 Pa.Super. 352, 356, 543 A.2d 116, 118 (1988), allocatur denied, 522 Pa. 620, 563 A.2d 888 (1989).

At the outset, therefore, we must consider whether the trial court’s denial of the appellant’s petition to amend its answer to plead the statute of limitations as an affirmative defense is either final and, therefore, appealable, or interlocutory and, therefore, not immediately appealable.

Generally, appeals are permitted from final orders only, unless a special right to appeal is statutorily delineated. James A. Mann, Inc. v. Upper Darby School Dist., 99 Pa.Commw. 276, 280, 513 A.2d 528, 530 (1986). “A final order is one which usually ends the litigation, or alternately, disposes of the entire case.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-45 (1978). In general, orders which deny or grant a party’s request to amend the pleadings are interlocutory and, therefore, not immediately appealable. However, an order which denies a party’s request to amend an answer to plead an affirmative defense is considered final and is, therefore, immediately appealable. Soxman v. Goodge, 372 Pa.Super. 343, 345, 539 A.2d 826, 828 n. 1, appeal denied sub nom. Petition of Goodge, 520 Pa. 575, 549 A.2d 136 and 520 Pa. 577, 549 A.2d 137 (1988); James A. Mann, 99 Pa.Commw. at 278, 513 A.2d at 530. This is so because denial of a motion to amend to plead an affirmative defense precludes the introduction of proof at trial of what might constitute a complete defense, effectively putting the pleading party "out of court”. Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 352 (1966). See Shaffer v. Pullman Trailmobile, Div. of M. W. Kellogg Co., 368 Pa.Super. 199, 209, 533 A.2d 1023, 1028 (1987). More specifically, because a statute of limitations defense may control the outcome of an entire case, an order denying a motion to amend a pleading to plead the statute of limitations as an affirmative defense is final and appeal-able. Pellegrine v. Home Ins. Co., 200 Pa.Super. 48, 52, 186 A.2d 662, 665, (1962). See Hughes v. Pron, 286 Pa.Super. 419, 422, 429 A.2d 9, 11 (1981). We conclude, therefore, that the trial court’s denial of the appellant’s motion to amend its answer to affirmatively plead the statute of limitations was a final order and is properly on appeal to this court.

Appellant contends that the trial court erred in denying its motion to amend its answer to affirmatively plead the statute of limitations. Appellant asserts that the record contained no evidence of the prejudice to the appellee which would result if the court permitted the amendment. Absent a showing of prejudice, appellant argues, the trial court should have granted the amendment petition. We agree and, therefore, reverse.

In its motion to amend, the appellant sought to amend its answer to the appellee’s counterclaim by asserting that the counterclaim was barred by the statute of limitations. The appellee opposed this motion, claiming that if the court permitted the amendment, discovery would have to be reopened “to pursue matters of memory, documentation and witnesses which are stale, and more probably than not have faded and/or disappeared.” Defendant’s Response to Plaintiffs’ Petition for Leave to Amend Answer to Defendant’s Counterclaim (emphasis added). Based upon this single assertion, the trial court concluded that to allow the amendment would be to force the defendant to rely upon “the faded memories of witnesses to overcome Plaintiffs’ affirmative defense to Defendant’s Counterclaim.” Trial Court op. at 4. We now review the propriety of this ruling.

When reviewing a trial court’s ruling on a party’s petition to amend we must bear in mind that the trial court is granted broad discretion in evaluating amendment petitions. Newcomer v. Civil Service Comm’n of Fairchance Borough, 100 Pa.Commw. 559, 564-65, 515 A.2d 108, 111 (1986). The sound discretion of the trial court will not be disturbed on appeal absent a showing of an abuse of that discretion. Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 131, 519 A.2d 1021, 1027 (1987). With this standard in mind, we review appellant’s claim.

Pennsylvania Rule of Civil Procedure 1033 provides that:

[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033 (emphasis added). This rule has repeatedly been interpreted as requiring the liberal evaluation of amendment requests, see Pa.R.C.P. 126, in an effort to secure a determination of cases based upon their merits, Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super. 311, 313-14, 484 A.2d 148, 150 (1984), rather than based upon a mere technicality. Thus, Rule 1033 has been interpreted to permit amendments to pleadings at any time, including before, during and after trial. Winterhalter v. West Penn Power Co., 355 Pa.Super. 17, 21, 512 A.2d 1187, 1189 (1986).

Despite this liberal amendment policy, Pennsylvania appellate courts have repeatedly ruled that an amendment will not be permitted where it is against a positive rule of law, or where the amendment will surprise or prejudice the opposing party. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 119, 516 A.2d 299, 302 n. 6 (1986); Soxman v. Goodge, 372 Pa.Super. at 346-47, 539 A.2d at 828; Ecksel, 360 Pa.Super. at 131, 519 A.2d at 1027. There is no allegation that the proposed amendment violates a positive rule of law. In its answer to the appellant’s petition to amend and in its brief to this court, the appellee seems to be contending that it will, in some way, be prejudiced if the amendment is permitted. The appellee and the trial court in its opinion both contend that the four and a half year delay, in conjunction with the prejudice to the appellee, provide adequate grounds for rejecting the proposed amendment.

At the outset we note that the lateness of a proposed amendment is only to be considered “insofar as it presents a question of prejudice to the opposing party.” Gutierrez v. Pennsylvania Gas & Water Co., 352 Pa.Super. 282, 286, 507 A.2d 1230, 1232 (1986). It has been consistently held that “unreasonable delay”, by itself, is an insufficient ground upon which to base a denial of an amendment motion. R.P. Clarke Personnel, Inc. v. Commonwealth Nat’l Bank, 384 Pa.Super. 524, 536, 559 A.2d 560, 566 (1989). See Carpitella by Carpitella v. Consolidated Rail Corp., 368 Pa.Super. 153, 157, 533 A.2d 762, 764 (1987) (party must establish more than undue delay before liberal policy of amendment entrenched in Pennsylvania case law will be overcome).

The type of prejudice which is required to overcome Pennsylvania’s liberal amendment policy has been defined thusly:

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

Bata v. Central-Penn Nat’l Bank, of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied sub nom. Bata v. Bata, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) (quoting Fleming, James, Jr., Civil Procedure 158 (1965)). “The mere fact that the adverse party has expended time and effort in preparing to try a case against the amending party is not such prejudice as to justify denying the amending party leave to amend to raise an affirmative defense which has a substantial likelihood of success.” James A. Mann., Inc. v. Upper Darby School Dist., 99 Pa.Commw. 276, 281, 513 A.2d 528, 531 (1986). Rather, the prejudice inquiry is limited to an evaluation of whether undue prejudice exists. Bata, 448 Pa. at 380, 293 A.2d at 357; Winterhalter, 355 Pa.Super. at 21, 512 A.2d at 1189. The appellee’s only factual allegation of prejudice is contained in its answer to the appellant’s amendment petition. The appellee alleges that if the court permitted the amendment, discovery would be reopened, requiring the parties to pursue matters within witnesses’ memories and documentation which are stale and might have faded over the passage of time. This is the only ground of possible prejudice contained in the appellee’s answer. Based solely upon this vague assertion, the trial court found that if the amendment were permitted, the appellee would be prejudiced. Based upon the evidence in the record, we simply cannot so conclude.

The appellee’s assertion of prejudice is based wholly upon conjecture and speculation. There are no record facts to support the appellee’s assertion that witnesses’ memories have faded over time in a way that would prejudice the appellee. Absent factual evidence to support this assertion we cannot find, as the trial court did, that the appellee has established prejudice. See, e.g., Pilotti v. Mobil Oil Corp., 388 Pa.Super. 514, 518, 565 A.2d 1227, 1229 (1989) (examples of types of prejudice include unfair surprise, loss of witnesses and eleventh hour surprise); Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 131-32, 539 A.2d 360, 364, allocatur denied, 520 Pa. 583, 549 A.2d 916 and Litton Sys. Inc. v. Goodyear Tire and Rubber Co., 520 Pa. 583, 549 A.2d 916 (1988) (in analyzing whether sufficient prejudice existed to deny amendment request, court emphasized that “the trial court’s statement that material evidence has been lost is insufficient to deny appellant’s amendment.”); Brooks v. McMenamin, 349 Pa.Super. 436, 438, 503 A.2d 446, 447 (1986) (reversed trial court’s denial of amendment request where six-month delay occurred and no evidence of prejudice present).

Both the appellee and the trial court emphasize the length of the delay as warranting a denial of the appellant’s amendment petition. We reiterate that a lengthy delay, without more, is not a sufficient basis for rejecting a petition to amend. This court has previously held that a party must establish more than undue delay to overcome Pennsylvania’s liberal amendment policy. Carpitella, 368 Pa.Super. at 157, 533 A.2d at 764; Gallo, 335 Pa.Super. at 314, 484 A.2d 150. It has similarly been held that the denial of a motion to amend based solely upon unreasonable delay constitutes an abuse of discretion. Stouffer v. Commonwealth Dep’t of Transp., 127 Pa.Commw. 610, 615, 562 A.2d 922, 925 (1989).

We conclude, therefore, that the trial court committed an abuse of discretion in denying the appellant’s motion to amend its answer to affirmatively plead the statute of limitations. We emphasize that the record contained no evidence of the undue prejudice the appellee would suffer if the court permitted the amendment. Absent such a showing, delay by the moving party prior to seeking an amendment does not operate to provide sufficient grounds for rejecting an amendment motion.

Order reversed. Jurisdiction relinquished.

POPOVICH, J., files dissenting Statement.

POPOVICH, Judge,

dissenting:

I cannot discern an abuse of discretion by the trial court in its refusal to grant an amendment almost five years after the opportunity arose and additional years from the occurrence of the incident giving rise to the litigation. The prejudice is as palpable as it is self-evident. See Comm., Dept. of Transp. v. Bethlehem Steel Corp., 486 Pa. 186, 404 A.2d 692 (1979) (motion to amend answer filed three years after original complaint properly denied); Hightower v. Beckins Van Lines Co., 267 Pa.Super. 588, 407 A.2d 397 (1979) (trial court did not abuse its discretion in striking amended answer raising defense of statute of limitations, where the affirmative defense was raised two years and five months after original answer was filed).

      . In its brief, the appellant also briefly suggests several other trial court errors. These issues were neither directly stated in the appellant’s statement of questions section nor suggested thereby. We find, therefore, that the strict mandates of Pennsylvania Rule of Appellate Procedure 2116 were not followed. As a result, we decline to address these issues.

      . This rule provides, in part, that ‘‘[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126.

      . In its brief, the appellee asserts that before evaluating prejudice, we must first find that the party seeking to file a late pleading has shown cause for the delay. Appellee, however, misstates the law. Contrary to appellee’s assertion, Joyce v. Safeguard Mutual Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362, rev'd on other grounds, 517 Pa. 488, 539 A.2d 340 (1988), requires cause to be established only where a party seeks to extend or shorten the time during which a pleading must originally be filed. Id., 362 Pa.Superior Ct. at 527, 524 A.2d at 1364. Joyce does not require a showing of cause for the delay where a party seeks only to amend a timely filed answer. We note that in Ganassi v. Buchanan Ingersoll, P.C., 373 Pa.Super. 9, 540 A.2d 272 (1988), this court utilized the cause requirement discussed in Joyce to evaluate a party’s amendment request. Before considering whether the amendment should have been permitted, the Ganassi court found that the issue was not subject to review because it had not been properly certified in the record, but rather appeared only in the plaintiffs brief. The court then proceeded to consider the merits of the issue. We find, however, that because the Ganassi court had already determined that the issue was not properly presented on appeal, this further analysis constituted dicta and, therefore, is not binding on this court. In addition, we also note that Ganassi seems to be the only Pennsylvania appellate case which requires a party attempting to amend a pleading to show cause why the amendment request should be granted. There exist, however, a plethora of cases both before and after Ganassi which articulate the principle that in evaluating an amendment request, a trial court’s discretion is limited to an analysis of whether the amendment will unduly prejudice the adverse party. See Pilotti v. Mobil Oil Corp., 388 Pa.Super. 514, 565 A.2d 1227 (1989); Stouffer v. Commonwealth Dep’t of Transp., 127 Pa.Commw. 610, 562 A.2d 922 (1989); R.P. Clarke Personnel, Inc. v. Commonwealth Nat’l Bank, 384 Pa.Super. 524, 559 A.2d 560 (1989); Brooks v. McMenamin, 349. Pa.Super. 436, 503 A.2d 446 (1986). For these reasons, we find that Ganassi does not control our disposition of this issue.

      . The trial court opinion mischaracterizes the part played by the time of the proposed amendment. The trial court stated that "[t]he later the Petition to Amend is filed, the more it can be presumed that prejudice will flow from its grant and thus less actual prejudice need be demonstrated to defeat the petition to amend the pleading. Newcomer v. Civil Service Commission of Fairchanie [sic] Borough, 100 Pa.Cmwlth. 559, 515 A.2d 108 (1986).” Trial Court op. at 3. To the contrary, the Newcomer court stated that "the later in the case such a petition is filed,” the more that prejudice will be presumed to have resulted. Newcomer, 100 Pa.Commw. at 564, 515 A.2d at 111. The Newcomer court went on to emphasize that prejudice will uniformly result where an amendment is sought after the testimony has been concluded where the subject matter of the proposed amendment was not contemplated by the opposing party. In the instant case, however, trial has not commenced. Thus, while five years may have elapsed since the original answer was filed, the case is still in the pretrial stage, requiring the party opposing the amendment to bring forth actual evidence of undue prejudice.


author: DEL SOLE, Judge:

text:
    580 A.2d 401
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. KAMINSKI LUMBER CO. INC., Danny M. Toney, Barbara Toney Schurman Machine Inc., a Subsidiary of U.S. Natural Resources, Inc. and Van Auken Mill Supplies and Equipment Co., Inc., Appellee.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Decided Sept. 17, 1990.

      George F. Douglas, Jr., Carlisle, for appellant.
    Lillian M. Morgan, York, for Kaminski Lumber, appellee.
    Terry S. Hyman, Harrisburg, for Toney, appellees.
    Timothy I. Mark, Harrisburg, for Natural Resources, appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This is an appeal from a grant of summary judgment in a declaratory judgment action. The action was filed by Appellant, Pennsylvania National Mutual Casualty Insurance Company, seeking a ruling that it owed no coverage or duty to provide a defense to its insured, Appellee, Kaminski Lumber Co. As stated by the trial court the genesis of the case concerns an injury sustained by Danny Toney when he was struck by a board rejected from a saw he was using while performing duties for his employer, Mountain Valley Lumber. Mr. Toney and his wife brought suit against Schurman Machine Company, who manufactured the saw, and Kaminski Lumber Co., who purchased the saw from Schurman. Also named as a defendant was Van Auken Mill Supplies and Equipment Company, Inc. who purchased the used saw equipment from Kaminski and resold it to Mr. Toney’s employer.

Kaminski was issued a Comprehensive General Liability Insurance Policy from Pennsylvania National. After Pennsylvania National was notified of the suit it filed the instant declaratory judgment action asking the court to rule that because of an exclusion in the policy, it had no duty to defend or provide coverage to Kaminski. Cross-motions for summary judgment were filed with the court, which ruled against Pennsylvania National and in favor of Kaminski. This appeal followed.

The policy issued to Kaminski included an exclusion which stated that coverage would not apply to bodily injury or property damage included within the “Products Hazard”. The term “products hazard” was defined in the policy as:

‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.

The policy also provided a definition for the term “named insured’s products” as follows:

goods or products manufactured, sold handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but ‘named insured’s products’ shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold.

It is Pennsylvania National’s position that it is entitled to deny coverage and defense of Kaminski in the action brought by the Toney’s because the policy at issue clearly excludes from coverage bodily injury caused by a product such as the saw at issue, after the insured has relinquished physical possession of the product to others. The trial court rejected this argument and instead concluded that the policy language was ambiguous since the term “product” was not clearly defined. The trial court concluded that the exclusion did not apply in this instance because the claim made against Kaminski was not grounded in products liability.

The trial court correctly characterized the claim brought by the Toney’s against Kaminski. Although the complaint sets forth strict liability claims against Schurman Machine and Van Auken Mill Supplies, the allegations against Kaminski are not based in products liability. The complaint alleges that the Toney’s injuries were a direct result of Kaminski “negligence and/or gross negligence”. The negligent acts were said to include modification of an anti-kickback safety device and modification of controls on the equipment. Also alleged was negligent conduct in failing to convey to Mr. Toney’s employer adequate warnings, instructions or advice, and failure to properly and fully inspect the machinery.

Despite the clear language indicating that the claim brought against Kaminski is based in negligence, Pennsylvania National nevertheless maintains that the allegations are in essence ones of product liability. Pennsylvania National submits that since Kaminski was alleged to have modified a product and failed to have warned of its condition or inspect the product which it eventually sold, it was acting as a seller liable under Section 402A of the Restatement (Second) of Torts. Pennsylvania National maintains that such a seller is not entitled to be provided with a defense or coverage under the terms of the policy.

Most recently in Harford Mutual Ins. Co. v. Moorhead, 396 Pa.Super. 234, 578 A.2d 492 (1990) this court was confronted with the question of whether an identical “Products Hazard” exclusion precluded coverage where allegations of negligent failure to warn were made against a wine manufacturer. It was alleged in the complaint that the manufacturer of certain sulfur strips used in wine making failed to give proper instructions on their use. The insurer argued that although the plaintiff had alleged “negligence” in his complaint, the allegations of failure to instruct or to warn involve establishing proof of a defective product. It was ;the insurer’s position that the complaint was “merely a ‘defective product’ claim repackaged semantically to evade the ‘product hazard’ exclusion.” Id. at-, 578 A.2d at 497.

The Harford court concluded that “where, as here, a claim is brought under the auspices of a ‘negligent failure to warn,’ it is appropriate to view the complaint as one charging improper conduct, and not one of making a défective product, despite arguable similarities between such claims.” At;-, 578 A.2d at 501. The Harford decision cited to Friestad v. Travelers Indemnity Co., 260 Pa.Super. 178, 393 A.2d 1212 (1978) which also was construing an exclusion, as found in this case and in Harford, which excludes coverage for damages arising out of an insured’s product or reliance upon a representation or warranty made with respect to the product. Relying on the language in Friestad, which found that the products hazard was to be applied “only when a product, rather ' than a service, is the cause in fact of damages or injury to a third person” 393 A.2d at 1217, the Harford court ruled that the insurer was responsible for defending against the claim of improper conduct and would have to cover the underlying claim if it proved to be successful.

The ruling in Harford is relevant to the instant case which centers on a complaint which also alleges a failure to inspect and warn. According to the decision in Harford, such claims relate only to conduct or service and not a defective product, thus, injuries which result from such “conduct” are not “damages arising out of an insured’s product” or representations or warranties made with respect to the product. The exclusion for products hazard does not apply to the claims made by the Toney’s regarding Kaminski failure to warn.

However, unlike Harford, the complaint in this case involves not only claims regarding conduct of failure to warn and inspect but also allegations that the product was altered creating an unsafe condition. In Harford there was no complaint that the product was defective or that it malfunctioned, Id. at-, 578 A.2d at 497, while in this case the Toney’s do make such allegations against Kaminski. Although such allegations are presented in the Complaint, a more immediate question must be addressed which was not at issue in Harford. In Harford it was not disputed that the “product” involved was the “named insured’s product.” The same is not true here. Although the policy provides a definition, as cited earlier, of the term “named insured’s product,” we agree with the trial court that the term “product” is not defined in the policy and remains ambiguous.

The trial court noted that Kaminski was in the business of buying, sawing and selling lumber, not in the business of selling new or used saws. Under a general definition of the term product, meaning items produced, Kaminski product would be its lumber, not a used piece of equipment it did not manufacture but later sold to another. The court remarked that the policy does not define whether the term “product” is intended to apply only to items “produced” by Kaminski or also to items “produced” by others but sold by Kaminski. Either interpretation may be made.

Where we are presented with a policy which includes an exclusion containing language which is ambiguous, obscure, uncertain or susceptible of more than one construction, the language must be construed most favorably to the insured and against the insurer. Aetna Casualty and Security Company v. Drake, 343 Pa.Super. 114, 494 A.2d 381 (1985). The trial court properly determined that the policy issued by Pennsylvania National did contain such an ambiguous term and correctly ruled that the provision must be construed in favor of the insured.

This ruling is in keeping with general principles of product liability law. This doctrine set forth in Section 402A of the Restatement (Second) of Torts and adopted in Pennsylvania, see Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), imposes strict liability on the seller of any product sold in a defective condition unreasonably dangerous to its user or consumer. One of the conditions necessary to create this special liability is that the seller be “engaged in the business of selling such a product.” Restatement (Second) of Torts 402A(a). As stated by our supreme court in Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 372 A.2d 736 (1977):

Engagement in the business of “selling” (leasing) products is, of course, a basic requirement of the rule. Restatement (Second) of Torts § 402A(l)(a); Webb v. Zern, supra; McKenna v. Art Pearl Works Inc., 225 Pa.Super. 362, 310 A.2d 677 (1973). The reason for this requirement is stated in Comment f to Section 402A:
The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters in to the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person, or even to his buyer, in the absence of his negligence.

In this case there was no dispute that Kaminski was not engaged in the business of selling used saw equipment. The Toney’s who suffered injury as a result of this equipment brought an action against Kaminski based in negligence not in strict liability. Although Pennsylvania National opines that the underlying action is one really sounding in products liability, this theory is belied by the fact that claim is stated to be in negligence and is based upon the sale of a piece of equipment which Kaminski was not in the business of selling.

The “Products Hazard” risk, sought to be excluded in the policy issued by Pennsylvania National, was one governing bodily injury “arising out of the named insured’s products.” Although the policy provides a definition of the phrase “named insured’s products” as “goods or products manufactured, sold handled or distributed by the named insured” the terms goods or products are not defined. Because we agree with the trial court that this language is ambiguous and because it appears to exclude products liability coverage, which we have shown would be inapplicable under the facts of this case, we agree with the trial court that the allegations in the Complaint against Kaminski do not fall within the exclusion set forth in Pennsylvania National’s policy.

In interpreting an insurance contract the goal must be to ascertain the intent of the parties as demonstrated by the language contained in the insurance contract. Mohn v. American Casualty Company, 458 Pa. 576, 326 A.2d 346 (1974). We agree with the trial court’s interpretation of the policy at issue. To paraphrase from Harford Mutual v. Moorhead, supra, at ---, 578 A.2d at 503, an insurance company such as Pennsylvania National may avoid exposure to liability by redrafting its “Product’s Hazard” or providing a definition of “product” or “goods” so that it unequivocally includes claims based upon injuries from any products produced by the insured or produced by another which are sold by the insured. “The instant policy does not uneqivocally provide to the insured any indication that such a claim would not be covered. Accordingly we must hold against the insurance company as drafter of the provision.” Id.

We affirm the trial court’s ruling awarding summary judgment in favor of Kaminski and against Pennsylvania National.


author: ROWLEY, Judge:

text:
    580 A.2d 405
    PRIME PROPERTIES DEVELOPMENT CORPORATION v. James BINNS and Mary E. Binns v. A. Stanley ADAMS, Jr. and Joan Adams and Prime Properties Investment Corporation and Robert L. Bachich v. James CAMPBELL, Individually and d/b/a James Campbell Construction Company. Appeal of A. Stanley ADAMS and Joan Adams and Prime Properties Investment Corporation. PRIME PROPERTIES DEVELOPMENT CORPORATION v. James E. BINNS and Mary E. Binns v. A. Stanley ADAMS, Jr. and Joan Adams and Prime Properties Investment Corporation and Robert L. Bachich v. James CAMPBELL, Individually and d/b/a James Campbell Construction Company. Appeal of Robert L. BACHICH.
    Superior Court of Pennsylvania.
    Argued April 18, 1990.
    Decided Sept. 10, 1990.

      John J. O’Brien, Philadelphia, for Prime Properties, appellants (at 3086) and for Prime Properties, appellees (at 3087).
    Geoffrey Veith, Philadelphia, for Bachich, appellant (at 3087) and for Bachich, appellee (at 3086).
    Mark C. Schultz, West Conshohocken, for Campbell Const., appellee.
    Before CAVANAUGH, ROWLEY and HUDOCK, JJ.
   ROWLEY, Judge:

These are consolidated appeals by A. Stanley and Joan Adams, and Prime Properties Investment Corporation (PPIC) [No. 3086 Philadelphia 1989], and Robert Bachich [No. 3087 Philadelphia 1989], from an order which sustained the preliminary objections of additional defendant James Campbell on the basis of the untimely joinder of Campbell, and which dismissed the complaint against him as an additional defendant. The primary issue raised on appeal is whether the judge who sustained the preliminary objections of additional defendant Campbell to the late joinder had the authority to do so where an ex parte order granting permission to join Campbell out of time had been signed by a different judge of equal jurisdiction and no new evidence was presented to the judge who considered the preliminary objections other than the fact that James Campbell objected to his being joined to the action several years after the action had been commenced. For the reasons set forth herein, we affirm.

Prime Properties Development Corporation (Prime Properties) commenced the instant action on February 13, 1986, against James and Mary Binns for failure to pay the full contractual construction cost of a residence which was being built for the Binns by Prime Properties Investment Corporation (PPIC), the predecessor corporation of Prime Properties. On March 11, 1986, the Binns filed an answer and counterclaim alleging faulty workmanship including, but not limited to, design deficiencies, negligent supervision, breach of contract and warranties, and fraud. Allegedly as a result of the faulty workmanship, the Binns averred that “the floors and ceilings belly in the middle,” “the floors and ceilings slope,” “the walls are cracked and crooked,” and “the door jambs are crooked.” (Paragraph 23 of Binns counterclaim.)

On April 18, 1986, the Binns filed a third-party complaint against A. Stanley and Joan Adams, principals of PPIC, PPIC itself, John Haley, and Robert Bachich, who was the architect for the project. This third party complaint and an amended third-party complaint filed in May, 1987, generally included similar averments as those asserted in the original counterclaim.

Discovery commenced in 1987, and on June 17, 1988, James Campbell, who was the framing subcontractor for the house, was deposed. At that time he was not a party to the action and was not represented by counsel. In December 1988, the Binns’ own structural expert who was helping them correct the defects in the house discovered the possibility of faulty framing. On January 19, 1989, appellants filed a Motion for Leave to Join James Campbell as an additional defendant. Inasmuch as James Campbell had no notice of the motion to join him as an additional defendant, this motion was ex parte. Judge Vogel granted the ex parte motion on February 15, 1989. The third-party complaint against James Campbell was filed on March 17, 1989, and James Campbell filed preliminary objections thereto on June 7, 1989. The preliminary objections were sustained by Judge Nicholas on September 28, 1989, and the instant appeals, each raising identical issues, followed.

Appellants’ principal argument is that the general rule that one judge may not overrule another judge of co-equal jurisdiction in the absence of additional circumstances is applicable to the present case and barred Judge Nicholas’ order dismissing the third-party complaint joining James Campbell on the basis of untimely joinder after Judge Vogel had already granted permission to join James Campbell out of time. This rule, however, is inapplicable where there has been an ex parte order granting permission to join an additional defendant out of time, and where the late-joined additional defendant files preliminary objections to the complaint joining him out of time.

Appellants have correctly restated the general rule.
It is well settled in Pennsylvania that a trial judge may not pass upon the decision of another trial judge of the same court on an interlocutory matter. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983).

Buck v. Coldway Food Exp., Inc., 383 Pa.Super. 580, 557 A.2d 404 (1989). However, the law is also clear that although a court may grant an ex parte motion to join a third party defendant out of time pursuant to Pa.R.C.P. 2253, the court may reconsider the decision to permit late joinder upon the filing of preliminary objections by the third-party defendant. McDevitt v. Avis Rent-A-Car Systems, Inc., 443 Pa. 49, 277 A.2d 815 (1971).

Rule 2253 provides:
Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

Since in the present case, appellants did not seek to join James Campbell as an additional defendant until more than two and one-half years after they had been served with the additional complaint by the Binns, appellants could join James Campbell as an additional defendant only with leave of court pursuant to Rule 2253. Consequently they filed a motion pursuant to Rule 2258 which Judge Vogel granted.

Where the initial order granting late joinder of a third party pursuant to Rule 2253 is entered ex parte, i.e., without notice to the proposed third party to be joined, the order can be challenged by the late-joined third party upon the filing of preliminary objections to the third-party complaint. The right of the late-joined third party to challenge the late joinder is essential. As the Supreme Court has said:

This opportunity is especially necessary where the initial order granting joinder is ex parte. The granting of leave to join an additional defendant more than sixty days after plaintiffs original pleading involves an exercise of the court’s discretion, Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970), and if the proposed additional defendant is not given an opportunity to be heard at the time of the original exercise of that discretion, he should at least be given a later opportunity to have the decision properly reconsidered. The filing of preliminary objections is a wholly appropriate method for invoking such reconsideration.

McDevitt, supra, 443 Pa. at 52, 277 A.2d at 816.

In the present case, therefore, when James Campbell filed preliminary objections to the third-party complaint filed against him, he was taking the appropriate steps to challenge his untimely joinder because the filing of the complaint against him was the first time he received knowledge that appellants had attempted to join him as an additional third-party defendant long after the time for joinder of additional parties had passed. By filing the preliminary objections to the late joinder, James Campbell invoked reconsideration of the order granting permission for the untimely joinder.

We are aware of no rule which requires that reconsideration of an order granting permission to join a party out of time upon the filing of a preliminary objection to the untimely third-party complaint can only be accomplished by the judge initially permitting the untimely joinder. On the contrary, such a rule may in many instances be impractical or entirely impossible, such as if the judge granting permission to join the party out of time ceases to serve as a judge before the preliminary objections of the late-joined third party defendant are filed, or if the judge making the first order is otherwise unavailable.

Moreover, upon consideration of the preliminary objections of the late-joined third party defendant, the court would have before it the additional information, unavailable to the judge granting the ex parte motion for permission to join the party out of time, that the third party defendant objects to the late joinder. Even though the third party defendant may not be able to provide any additional evidence beyond that which was presented on behalf of the ex parte motion for late joinder, the arguments setting forth the interests of the late-joined party would be different than those made by the party who had sought the joinder ex parte, and since the court entering the ex parte order did not have the benefit of those arguments, they must be considered additional information put before the judge ruling on the preliminary objections to the late joinder.

We therefore hold that where a judge grants an ex parte motion to join a third-party defendant out of time, and upon service of the late-filed third-party complaint, the late-joined party files preliminary objections on the basis of the untimeliness of the joinder, a different judge may rule upon the preliminary objections even if the party filing the preliminary objections does not introduce any additional evidence in the proceeding before the second judge. Preliminary objections are the only available means by which the late-joined party can be heard on the question of late joinder, and since the judge deciding the ex parte motion for late joinder would not have had the benefit of the arguments of the late-joinder party, the judge considering the preliminary objections is therefore not bound by the prior ruling on the ex parte motion.

Having concluded that Judge Nicholas was not bound by Judge Vogel’s decision on the ex parte motion for late joinder, we turn now to consideration of the merits of Judge Nicholas’ order. Whether there is cause shown for an extension of time within which to join a third-party defendant is a matter within the discretion of the trial court, and we will not reverse the trial court’s decision in the absence of an abuse of discretion. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970).

Appellants argue that Judge Nicholas abused his discretion in sustaining the preliminary objections because James Campbell’s bald assertion of prejudice cannot preclude his untimely joinder, because untimely joinder of James Campbell was the result of circumstances beyond the control of appellants, discovery is still ongoing, and James Campbell uniquely will know whether his framing of the house was negligent. Appellants’ principal argument is that they did not have the means, until December 1989, when they received the report from the Binns’ expert, to know that faulty framing may have been the cause of the problems with the Binns’ house.

As the trial court noted, the more than two year delay in appellants’ attempt to join James Campbell as an additional defendant is not by itself determinative. Zakian, supra. However, the reason asserted by appellants for the cause of the delay, that they did not know that the framing might be the root of the problem, cannot be excused. First, counsel for appellants did not examine the house for the first time until January, 1988, seven months after the amended complaint had been filed against them. By that time, it is true that none of the framing members were visible inasmuch as the advanced stages of construction had covered over the structural frame. However, at no time did appellants ever ask the Binns for permission to bring in the appellants’ own expert to remove some of the plastering in order to examine the framing. Instead, they waited until Binns’ own expert demolition crew, in December 1989, took the house apart in order to make the essential structural repairs, and advised appellants what they found.

Had there been no indication in the third-party complaint filed by the Binns that anything was wrong with the framing of the house, appellants’ plea that they had no idea there was a problem with the framing might be plausible. However, the complaint clearly implicates problems in the framing of the house. Paragraph 17 of the amended complaint against appellants asserts:

17. The carelessness, negligence and failures of performance of defendants A. Stanley Adams, Jr., Prime Properties Investment Corp. and Bachich includes, but are not limited to, the following:
# >|< # # # #
(b) Failure to plan and specify the use of proper framing materials to ensure adequate support for the structure and materials used therein;
(c) Failure to construct the structure with proper and adequate framing materials and to employ those materials in accordance with accepted standards for construction;
* * * * * *
(e) Failure to order lumber on a timely basis;
(y) Allowing supporting girders to remain without proper support during the construction of the frame of the house, thereby causing them to weaken and bend, resulting in a “bellying” effect;

In addition, paragraph 18 of the amended third-party complaint provides:

18. Due to the carelessness, negligence and failures of performance of defendants A. Stanley Adams, Jr., Prime Properties Investment Corporation and Bachich in design, planning and construction of the residence, the residence was designed, planned and constructed in an unprofessional and unworkmanlike manner, which resulted in the following:
(a) The floors and ceilings belly in the middle;
(b) The floors and ceilings slope;
(c) The walls are cracked and crooked;
(d) The door jambs are crooked.

(Emphasis added.)

Appellants argue that even the Binns’ own experts did not know that the problem with the house was potentially in the framing until December 1989, and that “the gravamen of the plaintiff’s complaint implicated design deficiencies, and the focus of the parties proceeded accordingly.” Appellants’ brief at 23. As can be seen from the portions of the amended third-party complaint quoted above, although the complaint averred negligence in the design of the house, as appellants perceived, the complaint clearly and unequivocally also averred that the construction was improperly performed, and specifically, that the construction of the framing of the house was inadequate. Therefore, appellants cannot now be heard to complain that the amended third-party complaint failed to identify faulty framing as one of the causes of the defects in the house when the complaint expressly so averred.

That the amended third-party complaint against appellants specifically charged that there was faulty framing is clear from appellants’ own third-party complaint filed against James Campbell. First, they expressly incorporate in the complaint against Campbell those paragraphs from the Binns’ complaint against appellants which are quoted above. Moreover, in paragraph 19, they expressly aver against Campbell some of the same facts alleged by the Binns against appellants:

19. The carelessness, negligence and failure to perform by James Campbell, individually and d/b/a/ James Campbell Construction Company, consisted of, but is not limited to, the following:
(a) Failure to provide adequate support for the structure;
(b) Failure to request and/or provide adequate materials to support the structure;
(c) Failure to order framing materials on a timely basis;
* * * * * *

Although appellants find the facts of Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 497 A.2d 661 (1985), and NPW Medical Center v. LS Design Group, 353 Pa.Super. 341, 509 A.2d 1306 (1986), to be distinguishable, we find them to be closely on point. In Kovalesky, the late-joined party had been present at the scene of the accident, and therefore was known to the original defendants. However, the original defendants failed to join the late-joined party for four months because they were confused procedurally. Because the original defendants were aware of the involvement of the additional defendant, the court found no good cause to permit the late joinder of the additional defendant. Similarly, in the present case, the appellants have always known who the framing contractor was, and the amended third-party complaint against the appellants clearly averred problems in the construction of the framing. Therefore, as in Kovalesky, there is not good cause to permit the late joinder, particularly where that joinder is attempted more than two years after the complaint against appellants was filed.

In NPW Medical Center, the original complaint alleged problems in the design and installation of a water system, including the averment that the defendants had approved certain pipe “notwithstanding that the incoming water supply to NPW is highly corrosive.” Because of the obvious connection between highly corrosive water and the premature corrosion of water pipes, the court refused to permit the late joinder of Pennsylvania Gas and Water Co. as an additional defendant. Likewise in the present case, there is an extremely obvious connection between the framing contractor and the averments in paragraphs 17 and 18 of the Binns’ complaint against appellants. Therefore there is not good cause for permitting the late joinder.

Good cause for late joinder also cannot be supported on the basis that none of the expert reports prior to December 1989 indicated that the framing was a problem. Appellants argue that Riccobono v. Keystone Helicopter Corp., 352 Pa.Super. 186, 507 A.2d 834 (1986), is inapposite. In Riccobono, the police and medical reports taken immediately after the accident showed that the driver had alcohol in his blood. Because of these reports, the court refused to permit the late joinder of additional defendants which were taverns from which the driver had purchased alcohol. The court reasoned that armed with the information in the medical and police reports concerning alcohol, the original defendant had failed to act expeditiously to learn the source of the alcohol in the driver’s body.

In the present case, it is true that no expert reports revealed faulty framing until December 1989. However, the complaint against appellants averred faulty framing, and appellants never took the initiative to obtain their own expert to determine the extent to which the framing was responsible for the problems. Because appellants simply waited until the Binns’ expert advised appellants of what his investigation showed, and the appellants themselves took no measures to ascertain the nature of their defense, we find Riccobono to be applicable and to support the conclusion that there was not good cause to permit the late joinder.

In addition, appellants argue that James Campbell’s bald averments of prejudice are insufficient to warrant the dismissal of the third-party complaint against him, since there is no prejudice to him inasmuch as he uniquely knows whether he was negligent in framing the house, since discovery is still ongoing, and since copies of any discovery and photographs obtained during discovery up to this point can be made available to Campbell. However, as the trial court pointed out, the case is already listed on the trial list, and any discovery, whether depositions, including the deposition of James Campbell himself, or photographs, was obtained without the best interests of James Campbell in mind. James Campbell was not represented by counsel when his deposition was taken, and therefore with regard to both his own and other witness’ deposition, no one was available to ask questions of the witnesses which would ferret out information most advantageous to James Campbell. With regard to the photographs, the trial court correctly noted that they were taken by parties who are now opponents of Campbell, and because the framing has been repaired, James Campbell cannot go back and obtain his own photographs of the allegedly faulty framing which no longer exists.

In light of the considerations of prejudice resulting to James Campbell if he were now joined as a party, and because there was no “good cause” for appellants failure to join James Campbell as a party within 60 days of the amended complaint against them having been filed, we find no abuse of the trial court’s discretion.

Order affirmed.

      . A. Stanley and Joan Adams are principals of Prime Properties Development Corporation and Prime Properties Investment Corporation.

      . John Haley has been dismissed from the suit pursuant to a stipulation and is not involved in this appeal.