author: McEWEN, Judge:

text:
    482 A.2d 984
    COMMONWEALTH of Pennsylvania v. John Warren YERGER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed Sept. 21, 1984.

      Barry M. Miller, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

This appeal was undertaken after appellant was determined by the distinguished Judge William T. Nicholas, sitting without a jury, to be guilty of possession with intent to deliver methamühetamine and of firearms offenses and sentenced to a prison term of four years to ten years. We affirm.

A state trooper specializing in narcotics investigations, contrived to purchase methamphetamines from appellant through the cooperation of an informer known as “Sonny” and considered by the trooper to be reliable. After the informant confirmed to the trooper that appellant would appear for the sale at a designated location and specific hour, the trooper partially completed an affidavit of probable cause for the search of the automobile of appellant, reciting:

PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES
(See special instructions below):
I, the affiant, have been a member of the Penna. State Police for over six (6) years. I have worked as a narcotics investigator for over two (2) years and am currently assigned to the Office of Drug Law Enforcement, Region II Narcotics Strike Force, Reading, Penna.
On 31 Aug. 81, the affiant received information from a confidential informant who related that he was present during a conversation and learned that an individual known as “Sonny” from Norristown, was to receive a quantity of methamphetamine from an individual known as “Crazy John YERGER. This delivery is to take place in the parking lot of Alfalfa’s located on Rt. 202, King of Prussia, Penna., at 6:00 PM on 31 Aug. 81. The informant gained this information through conversation with subjects who are to be the receivers of the methamphetamine.
The informant mentioned in this affidavit provided information to the Penna. State Police which has lead to the arrest of one (1) individual in Montgomery County for a vice violation. The informant also has supplied information and provided assistance in a current ongoing investigation in the Norristown area. This information has personally been verified through an independent investigation.
Examination of police records reflects that John Warren YERGER, aka "Crazy John YERGER” has been arrested three (3) times in the past for violation of the Drug Laws of the Commonwealth of Pennsylvania.
7/18/72 Penna. State Police, Troop “J” Viol, of the Controlled Substance Act
12/11/72 Montgomery County, Penna. ” ” ” ” ” ”
2/9/79 Penna. State Police, Troop “K” ” ” ” ” ” ”
On this date, I, the affiant, received information from Tpr. Walter WENIGER, Penna. State Police, who stated that he had recently received information from a confidential and reliable source that related that John YERGER was currently engaged in the sale of the methamphetamine and was last seen operating a white over maroon Cadillac. Tpr. Weniger received this information while conducting his duties as a member of the Penna. State Police, assigned to the Division of Drug Law Enforcement.

When appellant, driving the vehicle specified in the warrant, arrived at the prearranged time and place, the trooper arrested appellant and uncovered a switchblade knife during a search of his person. The trooper then provided for completion of the affidavit of probable cause by recitation of the following information:

At approximately 6:45 PM, on 31 August 1981, John YERGER appeared at Alfalfa’s Restaurant, located on Route 202, Upper Merion Twp., King of Prussia, Montgomery County, Penna., as was stated by the informant’s information. At this time, YER-GER was operating a 1976 white over maroon Cadillac Convertible, bearing Pa. Reg. #CXM369, issued to Norris Richards, RD # 1, Elverson, Penna.
Norris RICHARDS is a known alias for the subject John YERGER, who used this name at the time of his previous arrest on 2/9/79, and is documented under state police report # K3-140507.
On 31 August 81, Tpr. Walter WENIGER positively identified the driver of the 1976 white over maroon Cadillac as being John Warren YERGER, who Tpr. WENIGER knows personally.

The district justice, after review of the completed affidavit, issued the warrant for the search of the automobile of appellant, as a result of which the state police discovered and seized approximately 300 grams of methamphetamine in various packages and at several locations in the automobile, as well as a loaded .45 caliber automatic handgun.

Appellant asserts that the arrest was made without sufficient probable cause and was, therefore, illegal. While the notion of probable cause has been subjected to quite definite revision by the United States Supreme Court as well as clarification by this Court since the date of the issuance of the opinion of the trial court rejecting this assertion of appellant, those recent appellate expressions demonstrate that the trial judge not only correctly ruled upon but also quite intuitively addressed this assertion.

It is firmly established that “[p]robable cause exists where the arresting officers at the time of the arrest have knowledge of facts and circumstances, based upon reasonably trustworthy information, sufficient to warrant a person of reasonable caution in believing that the suspect has committed or is committing a crime.” Commonwealth v. Deemer, 316 Pa.Super. 28, 34, 462 A.2d 776, 779 (1983) (citations omitted). This Court, in Commonwealth v. Sorrell, 319 Pa.Super. 103, 109, 465 A.2d 1250, 1253-54 (1983), reiterated the firmly established principle that “[p]robable cause can be founded in hearsay evidence, as is the case when information is given to a police officer by a third party”, before concluding that the principles enunciated in the United States Supreme Court decision of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), apply with equal force to cases involving the warrantless seizure of the person. See also Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983). The Supreme Court, in Gates, “abandoned] the ‘two-pronged test’ established by [its] decisions in Aguilar [v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),] and Spinelli [v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)]”, and “reaffirm[ed] the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The Supreme Court redeclared its abandonment of Aguilar-Spinelli in Massachusetts v. Upton, — U.S. —, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (Per Curiam), when it stated that Gates “did not merely redefine or qualify the ‘two-pronged test’ [but] rejected it as hypertechnical and divorced from ‘the factual and practical considerations of everyday life in which reasonable and prudent men, not legal technicians, act.’ ” Massachusetts v. Upton, supra quoting Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Probable cause to arrest arises when the information provided is precise, detailed and verified by independent observation. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959); Commonwealth v. Norwood, 456 Pa. 330, 333-34, 319 A.2d 908, 910 (1974); Commonwealth v. Waters, 276 Pa.Super. 584, 590, 419 A.2d 612, 615 (1980); Commonwealth v. Fox, 267 Pa.Super. 341, 345-46, 406 A.2d 1072, 1074 (1979). While the Supreme Court, in Gates, reaffirmed the view that the “reliability” of the informant, as well as the informant’s “veracity”, and “basis of knowledge”, are “all highly relevant in determining the value of his report”, the Court nonetheless declared that “these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case. . . . Rather, . . . they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ . . . .” Id. 462 U.S. at 230, 103 S.Ct. at 2327. (footnote omitted). See also Massachusetts v. Upton, — U.S. at —, 104 S.Ct. 2085. Accord Commonwealth v. Rosario, 320 Pa.Super. 215, 217, 467 A.2d 5, 7 (1983); Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 197, 454 A.2d 84, 89 (1982). And while an informant’s tip standing alone may not be enough to justify a finding of probable cause, where the substance of the tip serves as a starting point for the further investigation that provides substantial corroboration of the tip, the reviewer, whether an issuing authority considering application for a warrant or a police officer poised to complete a warrantless arrest, may well then have a sufficient fund of information concerning the reliability of the informant and/or the veracity of the informant and/or the basis of the informant’s knowledge, as to enable the reviewer to conclude that under all of the circumstances probable cause does exist. See Massachusetts v. Upton, — U.S. at —, 104 S.Ct. at 2085; Illinois v. Gates, 462 U.S. at 241-245, 103 S.Ct. at 2334-35; Commonwealth v. Rosario, supra 320 Pa.Super. at 217, 467 A.2d at 8; Commonwealth v. Moore, supra 321 Pa.Super. at 6-7, 467 A.2d at 865; Commonwealth v. Sorrell, supra 319 Pa.Super. at 109-110, 465 A.2d at 1253; Commonwealth v. Price, 318 Pa.Super. 240, 248, 464 A.2d 1320, 1326 (1983).

The arresting officers and the trial court had an abundant basis upon which to conclude that the purpose of the presence of appellant was to sell drugs and that, therefore, there was probable cause to arrest. The facts and circumstances in support of that conclusion include: (1) the affiant had specialized in narcotics investigations for two years; (2) the confidential informant had earlier supplied information that had caused an arrest; (3) the informant had also supplied information in another current investigation; (4) the information supplied by the informant in connection with the other current investigation had proved to be of assistance; (5) the information supplied by the informant in the current investigation had been verified by an independent investigation of the state trooper; (6) the informant identified appellant by an alias that was verified by the police; (7) the independent investigation had verified the prior drug activity of appellant; (8) the activity of appellant in drug distribution was verified by another state police narcotics specialist; (9) appellant did appear at the prearranged time; (10) appellant did appear at the prearranged location; and (11) appellant was operating the automobile that had been described by the other state police narcotics specialist. The presence of probable cause would seem to have been beyond dispute. There is, therefore, no merit to the contention that the arrest was illegal.

Appellant further contends that the contraband seized from his vehicle should have been suppressed because the probable cause affidavit of the search warrant did not set forth either the ultimate source of the information supplied by the informant or the underlying circumstances from which the affiant concluded that his informant was credible or his information reliable. Appellant also argues that the search warrant was defective because the alleged buyer, “Sonny”, never appeared at the restaurant parking lot to complete the transaction. Probable cause determinations, as we have earlier stated, are now made on the basis of a totality of the circumstances analysis. Massachusetts v. Upton, supra; Illinois v. Gates, supra.

The adequacy of probable cause is a subject of analysis during two different stages of judicial inquiry and the United States Supreme Court has, in Gates and Upton, succinctly and firmly defined the scope of each of those two inquiries:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that the contraband or evidence of a crime will be found in a particular place and the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332 quoting Jones v. United States, 362 U.S. 257, 271 [80 S.Ct. 725, 736, 4 L.Ed.2d 697] (1960). (emphasis supplied). [T]he task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.
Massachusetts v. Upton, — U.S. at — [104 S.Ct. 2085] (emphasis supplied).

A study of the instant probable cause affidavit, restricted, of course, to its four corners, Commonwealth v. Gray, 322 Pa.Super. 37, 45, 469 A.2d 169, 173 (1983), discloses the same abundant basis for the determination by the magistrate that probable cause existed for the issuance of the search warrant as we hereinabove itemized and as we earlier ruled was sufficient to enable the officer to conclude that there was probable cause for the arrest. While it is true that the affidavit does not specifically identify the participants in the conversation, it is certainly clear from the affidavit that appellant expressed a willingness to distribute the drugs. “To require the affidavit to set forth the underlying facts and circumstances ad infinitum would be unreasonable.” Commonwealth v. Crawford, 320 Pa.Super. 95, 100, 466 A.2d 1079, 1081 (1983). This principle is especially applicable here where ample facts and circumstances were recited in the affidavit. The claims of appellant that the search warrant was defective must, therefore, be rejected.

The falsification of information by the state trooper, despite his oath in the affidavit for a search warrant, is the basis for the further assertion of error. Appellant asserts that after he had been convicted, he discovered that the state trooper not only provided false information in the affidavit of probable cause, but also rendered false testimony under oath during the suppression hearing. Since the transcript of the testimony rendered at the suppression hearing was later incorporated by reference into the record of the trial, appellant asserts. the contamination of the proceedings against appellant was complete. This after-discovered evidence was the basis for a hearing conducted by the trial court upon the motion of appellant for a new trial and in arrest of judgment on the grounds of after-discovered evidence.

The portion of the affidavit of probable cause which contained the allegedly wilful falsification of the state trooper recites:

On 31 Aug. 81, the affiant received information from a confidential informant who related that he was present during a conversation and learned that an individual known as “Sonn[y]” from Norristown, was to receive a quantity of methamphetamine from an individual known as “Crazy John YERGER[”]. This delivery] is to take place in the parking lot of Alfalfa’s located on Rt. 202, King of Prussia, Penna., at 6:00 PM on 31 Aug. 81. The informant gained this information through conversation with subjects who are to be the receivers of the methamphetamine.

The affiant state trooper acknowledged in his testimony at the hearing that the “confidential informant” and the “individual known as ‘Sonny’ ” were one and the same party and that, therefore, the informant did not witness and overhear a discussion between appellant and the third party concerning the sale of methamphetamine, but had himself conducted the conversation concerning the illegal distribution. Appellant further notes that the issuing authority was thereby deceived since the affidavit would reflect that the confidential informant had declared against his penal interest, a factor that simply did not exist.

The statements contained in the affidavit were misleading by omission, and the omission was undoubtedly deliberate. However, the statements were technically correct and were not an attempt to create probable cause where none existed. We, therefore, examine the affidavit in the light of the principle established by this Court in Commonwealth v. Tucker, 252 Pa.Super. 594, 599, 384 A.2d 938, 941 (1978), “that misstatements of fact will invalidate a search warrant and require suppression of the fruits of the search only if the misstatements of fact are deliberate and material.” (emphasis in original). “To rule otherwise would permit the police in every case to exaggerate or to expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.” Commonwealth v. D’Angelo, 437 Pa. 331, 337-38, 263 A.2d 441, 444 (1970). When we determine whether a misstatement is material, “the test is not whether the misstatement strengthens the application, but rather is it essential to it. This is determined by deleting the misstatement from the application, and then seeing whether the application still states enough to show probable cause.” Commonwealth v. Yucknevage, supra 257 Pa.Super. at 24, 390 A.2d at 227. (emphasis in original). See also In Interest of Eckert, 260 Pa.Super. 161, 166, 393 A.2d 1201, 1203 (1974).

An examination of the controverted portion of the affidavit leads us to conclude that the misstatements to be deleted are:

... who related that he was present during a conversation and learned____
The informant gained this information through conversation with subjects who are to be the receivers of the methamphetamine.

Since these deletions do not substantially or even materially affect the.ample facts and circumstances that support the conclusion of the issuing authority that probable cause existed for the issuance of a search warrant, we will not invalidate the warrant. As a result, we conclude the trial court properly dismissed the motions based upon this after-discovered evidence.

We hasten to emphasize, however, that this decision must not under any circumstances be considered as an approval of the judgment of the narcotics officers responsible for the decision to conceal the fact that “Sonny” was the confidential informant and that “Sonny” was the party conversing with appellant concerning the distribution of methamphetamine and not simply a witness to such a discussion. As zealous as the police officers of our Commonwealth are and must be to eliminate the awesome destruction that drug traffickers inflict upon our young people and their families and our Commonwealth, and as well motivated as police officers are and must be to protect informants, a police officer who relies upon a ploy to do so, risks the ultimate peril, namely, the discharge of the drug distributor from prosecution.

Judgment of sentence affirmed.

      . Appellant was sentenced to a term of imprisonment of from four years to ten years for possession with intent to deliver methamphetamine, and to concurrent sentences of from two and one-half years to five years upon the two weapons offenses. Sentence was suspended for possession of a small amount of marijuana.

      . When we view the denial of a motion to suppress, we must, of course, consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976); Commonwealth v. Jerry, 323 Pa.Super. 299, 307-308, 470 A.2d 601, 605 (1983). If the record supports the factual findings of the suppression court as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O'Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). ‘‘It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony.” Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

      . Since we have concluded that the arrest was lawfully made, there is no merit to the further contentions of appellant that (1) the switchblade found on appellant should have been suppressed as a product of an unlawful arrest; and (2) all items found during the course of the search of the vehicle should have been suppressed since the affidavit, the search warrant and the vehicle search were all tainted by an illegal arrest.

      . In light of our conclusions (1) that appellant was legally arrested and (2) that the search warrant was issued upon sufficient probable cause, there is no merit to the further assertion of appellant that his statements, including the overheard admission of complicity, should have been suppressed. Nor is there any merit to the contention that the court should have ordered a new trial or arrested judgment on the basis of either the search or the arrest.

      . Our inquiry is here reduced to the determination of whether the misstatement was material, since it is undisputed that the misstatement was deliberate. It is to be noted that when a misstatement is immaterial, it does not matter whether it is deliberate. Commonwealth v. Yucknevage, 257 Pa.Super. 19, 26 n. 2, 390 A.2d 225, 228 n. 2 (1978).

      . We have carefully reviewed the entire record as well as the briefs of the parties and conclude that the trial judge properly rejected the remaining contentions of appellant.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    482 A.2d 991
    PENN-CLAIR CONSTRUCTION COMPANY, A Pennsylvania Corporation v. EDEN ROC COUNTRY CLUB, A Pennsylvania Non Profit Corporation, Appellant v. Harry Alan SHERMAN, Robert F. Rainey, Paul Blank, Trustees of the Eden Roc Country Club Trust Fund. PENN-CLAIR CONSTRUCTION COMPANY, A Pennsylvania Corporation, Appellant, v. EDEN ROC COUNTRY CLUB, A Pennsylvania Corporation v. Harry Alan SHERMAN, Robert F. Rainey, Paul Blank, Trustees of the Eden Roc Country Club Trust Fund.
    Superior Court of Pennsylvania.
    Argued May 15, 1984.
    Filed Sept. 21, 1984.

      Harry A. Sherman, Coral Gables, for Eden Roc, appellant (at No. 738) and appellee (at No. 793).
    Walter F. Baczkowski, McKeesport, for Penn-Clair, appellant (at No. 793) and appellee (at No. 738).
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves cross-appeals from the June 15, 1982 Order of the en banc Court of Common Pleas of Westmoreland County amending its original judgment of default so as to read against the defendants-appellants (Eden Roc Country Club, Harry Alan Sherman, Robert F. Rainey and Paul Blank, Trustees of the Eden Roc Country Club Trust Fund). We affirm.

On June 1, 1977, counsel for Penn Clair Construction Co. filed a complaint in ejectment containing a “Notice to Defend” which complied in all respects with the language set forth in Pa.R.Civ.P. 1018.1(b). Also, the caption read that suit was being brought against: “EDEN ROC COUNTRY CLUB, a Pennsylvania non-profit Corporation” and “HARRY ALAN SHERMAN, ROBERT F. RAINEY, PAUL BLANK, Trustees of the Eden Roc Country Club Trust Fund.” After service was made, an appearance and preliminary objections were filed by counsel on behalf of the defendants, Eden Roc Country Club and Sherman, Rainey and Blank, as “Trustees of the Eden Roc Country Club Trust Fund.” Following the submission of an answer by the plaintiff, the court, sitting en banc, dismissed defendants’ preliminary objections for failing to file a brief and failing to appear for oral argument. Thereafter, on October 2, 1978, the plaintiff’s counsel presented the following captioned document to the prothonotary of Westmoreland County:

PENN CLAIR CONSTRUCTION COMPANY, a Pennsylvania Corporation, vs. EDEN ROC COUNTRY CLUB, a Pennsylvania non-profit Corporation, vs. HARRY ALAN SHERMAN, ROBERT F. RAINEY, PAUL BLANK, Trustees of the Eden Roc Country Club Trust Fund.
No. 4706 of 1977
IN EJECTMENT
PRAECIPE FOR JUDGMENT
TO THE PROTHONOTARY:
Please enter judgment against defendants, EDEN ROC COUNTRY CLUB, HARRY ALAN SHERMAN, ROBERT F. RAINEY and PAUL BLANK. They have failed to answer the complaint for more than twenty (20) days.
Amount of Judgment: Possession.

On September 10, 1979, a petition to open, followed by an amendment thereto on November 5, 1979, was filed and denied following a hearing. An appeal was taken to this Court, which affirmed the lower court’s action against, inter alia, Sherman, Rainey and Blank as “Trustees of the Eden Roc Country Club Trust Fund.” Penn Clair Construction Co. v. Eden Roc Country Club, 294 Pa.Super. 377, 440 A.2d 514 (1981).

On January 27, 1982, a motion to strike the default judgment was filed by Sherman, Rainey and Blank “as individuals, and not as trustees of the Eden Roc Country Club Trust Fund.” Therein, the movants alleged in relevant part:

14. None of the parties against whom judgment was entered was served or did authorize appearance of counsel in their behalf. Further, Harry Alan Sherman, Robert F. Rainey and Paul Blank individually were not named as defendants in the action; and did not appear in person or by attorney; nor were they at any time holders individually or collectively of any interest in the trust res other than as trustees. Movants therefore aver that the entry of judgment in default for possession of any part of the said Trust property is without warrant in law or equity, and is in violation of the rights of the said individual movants to due process under the Constitution and laws of the Commonwealth of Pennsylvania and under the Constitution and laws of the United States, and should be stricken.
* * * * * *
17. Although the issue of defective, erroneous and void judgment was raised in the brief of Appellants in the Superior Court, the said Court refused to hear or determine same [having not been raised below], suggesting that a Motion to Strike herein was the proper procedure for adjudication thereof, as appears in footnotes $ 2 and 8 of the Opinion therein____
18. None of the movants, either as trustees or as individuals were in any manner or by any act or conduct chargeable with the grounds upon which the defaults resulting in the entry of the void, erroneous and defective personal judgment was based. 19....
WHEREFORE, movants respectfully move that the personal void judgment against them be stricken.

On February 22, 1982, counsel for the defendants (Eden Roc Country Club, a Pennsylvania Corporation not for profit; Harry Alan Sherman, Robert F. Rainey and Paul Blank, as trustees of Eden Roc Country Club Trust Fund,) filed a motion seeking leave to file an answer to the complaint and new matter. In that portion of the motion relating to Sherman, Rainey and Blank as trustees, at Point 8, counsel asserted that “in ... the Complaint, the Trustee defendants set out in the caption thereof were admittedly all duly constituted trustees under the referred to express Trust, at the time of the institution of the within action.” However, at Point 9, counsel averred:

... [A]fter ... dismissal [of the preliminary objections filed on behalf of the defendants by counsel] without notice to these defendants, no answer was prepared on behalf of them or for Eden Roc Country Club, a non-profit corporation for whom they appeared without authorization and without notice of any of the defaults of said counsel, and, on praecipe of plaintiff, by its said attorneys, default judgment was erroneously entered against these defendants NOT AS TRUSTEES but personally, which said fact became known to them on or about January 17, 1981, after appeal in the name of these defendants was taken to the Superior Court of Pennsylvania ____

Further, on March 9, 1982, counsel for the movants — Sherman, Rainey and Blank sought leave to intervene as “individuals,” and not as “trustees” named in the original complaint, “for the purpose of moving to strike the void default judgment as to them[.]” Again, the movants admitted to hiring counsel “to defend against the complaint’s claim,” but pleaded that the failure of prior counsel to act timely and his filing of a petition to open on their behalf as “trustees,” in response to a default judgment entered against them as “individuals, ” was without their knowledge. Likewise, the movants alleged that counsel who represented them on the initial appeal to this Court was unaware of the discrepancy between the parties listed in the caption and those against whom the default judgment was being sought in the mandate of the plaintiff’s praecipe for judgment. Thus, they were asking for the opportunity to remedy the situation in the form of a motion to strike the default judgment.

Following the submission of numerous documents (e.g., briefs and amendments to the motion sought), the en banc court denied the movants request to intervene and strike the default judgment. In doing so, the court remarked that the plaintiff was conceding that it was not its intention to take judgment against Sherman, Rainey and Blank as “individuals.” Moreover, the court observed that, given the ruling of this Court affirming the denial of the petition to open filed by the defendants — Sherman, Rainey and Blank in their capacity as “trustees,” it had to decide if it had the authority to amend the original judgment so as to rea against the defendants as “trustees” and not as “individuals.

In holding that it had the power to make such an amendment (citing West Penn Sand & Gravel Co. v. Shipping- port Sand Co., 367 Pa. 218, 80 A.2d 84 (1951) and Brummer v. Linker, 329 Pa. 192, 196 A. 834 (1938)), the court did so by viewing the defendants’ motion as a “petition to amend the existing judgment to conform to the admissions of the parties ... motion to intervene as well as the plaintiff’s answer thereto.” Accordingly, the court entered the following Order:

AND NOW, to-wit, this 15th day of June, 1982, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment by default entered by the plaintiff on the praecipe on October 2, 1978, be amended to read:
Please enter judgment against the defendants Eden Roc Country Club, Harry Alan Sherman, Robert F. Rainey and Paul Blank, trustees of the Eden Roc Country Club Trust Fund. They have failed to answer the complaint for more than twenty days. Amount of judgment: Possession^]

The defendants (Eden Roc Country Club, a Pennsylvania non-profit corporation; Harry Alan Sherman, Robert F. Rainey and Paul Blank, as Trustees of Eden Roc Country Club Trust Fund,) filed an appeal questioning: 1) the authority of the en banc court’s sua sponte amendment of the default judgment against the trustees for their failure to file a. timely answer to the complaint; 2) whether the plaintiff complied with the notice to defend requirement of Pa.R.Civ.P. 1026; 3) whether the initial Order dismissing defendants’ preliminary objections was defective; and 4) whether the ruling in Penn Clair Construction Co. v. Eden Roc Country Club, supra, “foreclose[d] the right of defendants to move to strike the said [allegedly] void default judgment?” (Defendants’ Brief at 3)

Reviewing the last claim first, we note that this Court in Penn Clair Construction Co. specifically refused to determine whether a defect in judgment appeared on the face of the record so as to subject it to attack by a motion to strike. We did so on the basis that the issue, having been raised for the first time on appeal, was waived. See American Vend ing Co. v. Brewington, 289 Pa.Super. 25, 33 n. 5, 432 A.2d 1032, 1036 n. 5 (1981).

Presently, the defendants attempt to resurrect the matter under the guise that they personally were unaware of the defect, and the fact that none of their prior counsel raised the issue sooner should not be visited upon them now in the form of an extension of the waiver doctrine to preclude an assault on the validity of the default judgment.

We have answered similar claims made by counsel seeking to open/strike a default judgment, and find the response equally applicable to the case at bar; e.g.:

[Counsel for the appellants] laments that “attorneys are humans, prone to error, whose frailities [sic] should not be visited upon their clients depriving them of their right to have their case tested by a trier of fact. . . .” (Appellants’ Brief at 6) Although we empathize with counsel, we do not attribute a talismanic quality to the importuning that clients should not be held accountable for their counsel’s (in)action. “To hold otherwise as [appellants’ counsel] contend[s], would reduce the provisions for entering a [default judgment] to a nullity, since ... [counsel] could always void [it] by merely. . . .” arguing justice would not be served by penalizing clients for their attorney’s conduct. New York Life Insurance Co. v. Sekula, 352 Pa. 495, 498, 43 A.2d 134, 136 (1945).
******
“... we have held that although defendant’s ... counsel may be involved in other matters, the existence of these obligations provides no excuse for opening the judgment even though the client may be severely prejudiced. Walters v. Harleysville Mutual Cas. Co., 417 Pa. 438, 207 A.2d 852 (1965).” (Emphasis in original) Goldstein v. Graduate Hospital, supra, 441 Pa. [179] at 182-183, 272 A.2d [472] at 474 [(1971)]. Accordingly, the inadvertance or mistake of counsel, without more, will not excuse appellants’ failure to answer interrogatories. Spilove v. Cross Transportation, Inc., 223 Pa.Super. 143, 297 A.2d 155 (1972); Westinghouse Credit Corp. v. Wenzel, 223 Pa.Super, 87, 289 A.2d 759 (1972); see also Nardulli v. John Carlo, Inc., 274 Pa.Super. 34, 417 A.2d 1238 (1979) (failure to answer was based on a misunderstanding between counsel as distinguished from mere inadvertence or negligence, and, thus, lower court abused its discretion in refusing to open the judgment); King v. Fayette Aviation, 226 Pa.Super. 588, 323 A.2d 286 (1974) (burdens of litigation not reasonable excuse).

Vorhauer v. Miller, 311 Pa.Super. 395, 402 & 405, 457 A.2d 944, 948 & 949 (1983), praecipe for discontinuance filed June 10, 1983 [No. 190 E.D. Allocatur Docket 1983].

Instantly, as remarked earlier, the defect in the mandate of the praecipe for judgment was noticed initially by counsel on appeal. Under Pa.R.Civ.P. 1032, a party waives all defenses and objections which are not presented either by preliminary objection, answer or reply. Thus, under the rationale of Vorhauer, that clients are to be held accountable for the inactions of their counsel, and Rule 1032, we hold that appellants’ basis for seeking to strike the plaintiff’s default judgment has been waived. See General Mills, Inc. v. L.M. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964).

Alternatively, we note that the same result would obtain in the absence of a waiver. The reason is that in construing documents submitted to a court, the oft-stated manner in which they are to be scrutinized was stated by this Court in General Mills v. L.M. Snavely, supra; to-wit:

Although the answer, new matter and counterclaim were not drawn with particular nicety, we are impelled to heed the admonition in Pa.R.C.P. No. 126, as follows: “The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties”. Courts should not be astute in enforcing technicalities to defeat apparently meritorious claims: West Penn Sand & Grav el Co. v. Shippingport Sand Co., 367 Pa. 218, 80 A.2d 84 [(1951)]. The procedural rules are not ends in themselves, but means where by justice, as expressed in legal principles, is administered; they are not to be exalted to the status of substantive objectives: Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A.2d 692 [ (1960) ].

Id., 203 Pa.Superior Ct. at 167, 199 A.2d at 543.

It is undisputed that save for the mandate of the plaintiffs praecipe for judgment, all documents filed prior and subsequent thereto captioned the defendants as party-litigants in their capacity as “trustees” and not in person-am. This fact was accurately captured by the en banc court in its Opinion characterizing the plaintiffs response to defendants’ motion to intervene as one in which the “Plaintiff contended] that the praecipe for the entry of a default judgment [was] to be construed as referring to the intervenors in their capacity as trustees of Eden Roc Country Club and not as individuals.” As a result, the en banc court was correct in treating the various documents filed as justification to amend the original judgment of default to read against the defendants — Sherman, Rainey and Blank as “trustees.” See Yentzer v. Taylor Wine Co., 409 Pa. 338, 186 A.2d 396 (1962); George H. Althof, Inc. v. Spartan Inns of America, Inc., 295 Pa.Super. 287, 441 A.2d 1236 (1982); see also Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978).

Given our ruling concerning the preservation of appellants’ motion to strike argument, we find it unnecessary to deal with the other allegations raised by the appellants. Accordingly, we affirm the Order entered below.

      . We note that counsel for the plaintiff below, Penn Clair Construction Co., also has filed an appeal from the June 15, 1982 Order docketed by the prothonotary of Superior Court at No. 793 Pittsburgh, 1982. We have reviewed the plaintiff's brief and find that, although well-written, it merely argues in favor of sustaining the June 15th Order. It in no way questions the propriety of the Order at issue. Thus, plaintiffs filing of a separate appeal was for naught. The plaintiff could have accomplished the same objective by simply filing a brief in opposition to defendants' position. See Pa.R.App.P. 2112.

      . For the sake of completeness, we would note that appellants’ other claims concerning Points $ 2 and $ 3 cited supra have been examined and found wanting. For example, as for Point $ 2’s reference to Pa.R.Civ.P. 1026, the plaintiff’s complaint in ejectment complied in all respects with its notice to defend requirement. See Pa.R.Civ.P. 1018.1(b). Next, as to Point $ 3, after the defendants’ preliminary objections were denied on June 23, 1978, they failed to file any responsive pleading (i.e., Answer,) to the complaint in ejectment, despite numerous letters in the record from plaintiffs counsel asking defendants’ counsel to do so or suffer a default judgment. Thus, there was no impropriety in the plaintiffs submission of a praecipe for judgment on October 28, 1978 because of defendants’ counsel’s inaction. Compare Cruse v. Woods, 279 Pa.Super. 242, 420 A.2d 1123 (1980).
      It requires mention that because defendant — Eden Roc Country Club was properly identified in the praecipe for judgment filed by the plaintiff — when read as a whole, as well as all other instruments appearing in the record relevant to the instant action, there is no justification warranting the grant of relief to it, as compared to the other defendants — Sherman, Rainey and Blank as trustees.


author: MONTEMURO, Judge:

text:
    482 A.2d 997
    COMMONWEALTH of Pennsylvania v. Girard BELLINI, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1983.
    Filed Sept. 28, 1984.

      Louise Porac, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.

      . This case was argued prior to Judge Spaeth becoming President Judge.

   OPINION

MONTEMURO, Judge:

This is an appeal from a judgment of sentence. The appellant, Girard Bellini, was tried in the Court of Common Pleas of Allegheny County before the Honorable Henry R. Smith, Jr., and a jury. The appellant had been charged with violating 75 Pa.C.S. § 3742 (Accidents involving death or personal injury) and 75 Pa.C.S. § 3733 (Fleeing or attempting to elude police officer). The first charge, a misdemean- or, was submitted to the jury which returned a verdict of not guilty. The trial judge then dismissed the jury and found the appellant guilty of the second charge; which was a summary offense. Post verdict motions were denied by the trial court and the appellant was fined twenty-five ($25.00) dollars and ten ($10.00) dollars costs. This appeal followed.

The appellant asserts that: the trial court erred in denying his demurrer; the verdict was against the weight of the evidence; the trial court erred in not submitting the summary offense to the jury; and that the appellant cannot be guilty of eluding police when the officer in pursuit was in an unmarked vehicle in a jurisdiction other than his own.

The facts relevant to the present appeal are as follows. On November 18, 1978, at approximately 8:00 A.M., the appellant was proceeding west in the left hand lane of Connor Road, a four lane road in Mt. Lebanon. He was driving his father’s vehicle, a 1975 Chevrolet Camaro. Another vehicle, driven by David J. Motor, was also proceeding west in the right hand lane when he suddenly swerved into the left lane and collided with appellant’s vehicle. Motor’s vehicle went out of control and struck a telephone pole— severing the pole and bringing down high tension wires which landed on the vehicle. The accident occurred approximately two hundred (200) feet from the intersection of Connor Road and Route 19.

When the electrical wires cascaded down upon Motor’s vehicle, sparks flared all over the highway and it was virtually impossible to approach. The entire scene was viewed by Upper St. Clair Police Officer Dan Bryson, who was stopped at a traffic light on Route 19 where it intersected Connor Road. Officer Bryson immediately radioed the Mt. Lebanon police and rescue authorities. He then made a right turn and proceeded toward the accident scene.

When the accident occurred, the appellant’s vehicle stalled out and was stopped on Connor Road. Appellant testified that he realized from the seriousness of the accident, that he would be unable to aid Motor, so he resolved to alert the authorities by the nearest phone. He restarted the vehicle and continued to proceed west, passing Officer Bryson’s vehicle. Although the testimony is not clear at exactly what point the two vehicles passed, the officer testified that he executed a U-Turn about fifty feet from the accident scene and then engaged his flashing lights and siren to signal appellant to stop his vehicle.

The appellant made a left turn onto Route 19, and in doing so, proceeded through a red traffic signal. A witness, Thomas Weinheimer, who was stopped at the traffic signal at Connor Road and Route 19, testified that appellant had already made the left turn onto Route 19 when Officer Bryson engaged his lights and siren.

Officer Bryson followed the appellant south on Route 19. The appellant was traveling at a high rate of speed and the officer lost sight of him for approximately five (5) seconds as appellant’s vehicle went over the crest of a hill. Officer Bryson testified that at a point either one mile from the accident scene or one-half mile from the intersection of Connor Road and Route 19 (we recognize that these distances are inconsistent), appellant turned right into the parking lot of a small shopping mall. As the officer drove up, the appellant’s car was turned off and he had exited the driver’s side door.

The appellant asserted that, after seeing the accident, he was proceeding to a telephone to call the proper authorities. (This testimony was apparently believed by the jury). The appellant worked at a bar called the Living Room on Route 19 and he knew that there was a public telephone in the parking lot. It was in this lot that he had stopped. He testified that he never saw the police car as he passed it, nor did he see the flashing lights or hear the siren. Two passengers, Dino Donatelli and Paul Mongelluzzo, both testified that they never saw the lights or heard the siren. Appellant and Donatelli also testified that the time interval for the trip from the accident scene to the telephone did not exceed thirty seconds (N.T. 86-87, 96). Moreover, Officer Bryson testified that although he was in uniform and wearing a badge, he did not have his hat on and he was in an unmarked police car. He also agreed that there were numerous phone booths in the parking lot where the appellant stopped and that it was possible that appellant pointed out the phone booth to him.

Initially, the appellant claims the trial court erred in denying his demurrer. We note that the appellant put on a defense and thus has waived this issue. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

Appellant next contends that the verdict of the court was against the weight of the evidence. As this court stated in Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983):

Appellant’s second claim is that a new trial should have been awarded because the verdict was against the weight of the evidence. Such a determination is generally committed to the discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Starks, 298 Pa.Super. 213, 215, 444 A.2d 736, 738 (1982); Commonwealth v. Rodriguez, 291 Pa.Super. 239, 243 n. 3, 435 A.2d 888, 890 n. 3 (1981); Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). A court will grant a new trial on the ground that the verdict was against the weight of the evidence only where it ‘appear[s] from the record that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail.’ Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981).

Id., 310 Pa.Superior Ct. at 110, 456 A.2d at 207. See also, Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). If “[i]n reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.” Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 125 (1981); Commonwealth v. One 1961 Buick Special 4-Door Sedan, 204 Pa.Super. 293, 295, 204 A.2d 288, 289 (1964); Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942).

The offense of fleeing or attempting to elude a police officer is defined at 75 Pa.C.S. § 3733(a):

“(a) Offense defined. — Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, is guilty of a summary offense

Herein there is evidence that appellant was driving a motor vehicle; that he was signaled to stop — both audibly and visually, by a pursuing police vehicle, and that he did not immediately stop. The only dispute is whether the appellant’s failure to stop was willful. An action is willful if it is done knowingly. 18 Pa.C.S. § 302(g). “A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendent circumstances, he is aware that his conduct is of that nature or that such circumstances exist ...” 18 Pa.C.S. § 302(b)(2). The actor’s willfulness can be demonstrated directly or circumstantially. Commonwealth v. Wright, 289 Pa.Super. 399, 433 A.2d 511 (1981).

The appellant contends that his own testimony and the testimony of Donatelli and Mongelluzzo demonstrates that he was not aware of any signal to stop by a police vehicle, and consequently his failure to stop was not willful. He also points out that his testimony was given credence by the jury which acquitted him of the misdemeanor.

As to this latter point raised by the áppellant, the jury’s verdict is not dispositive, nor does it influence our decision herein.

“An acquittal cannot be interpreted as a specific finding in relation to some of the evidence. As in other cases of this kind, the court looks upon this acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”

Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971); Commonwealth v. Parrotto, 189 Pa.Super. 415, 150 A.2d 396 (1959).

The trial judge, in deciding the evidence was sufficient to sustain the conviction, stated:

Officer Bryson testified that, after he turned around, he observed the car leaving the scene and he put on his flashing lights and siren; and that he chased the defendant for approximately one mile to the place where the defendant’s car was brought to a stop. Although the defendant testified he did not see the flashing lights or hear the siren, the court found the officer’s testimony to be more credible; and inferred that the defendant, with knowledge that he had just been involved in an accident was leaving the scene, with the officer in close chase behind, saw the lights or heard the siren as he was driving from the scene.

Lower Court Opinion at 5. This court’s role in assessing such determinations by a trial court is a limited one, as thoroughly stated in Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976):

‘On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98 (1960). To do so would require an assessment of the credibility of the testimony and that is clearly not our function. Commonwealth v. Sullivan, 436 Pa. 450, 456, 263 A.2d 734 (1970) cert. denied, 400 U.S. 882, 91 S.Ct. 127, 27 L.Ed.2d 120; Commonwealth v. Schuck, 401 Pa. 222, 228, 164 A.2d 13 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961).’ Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973).
This concept, however, must be distinguished from an equally fundamental principle that a verdict of guilt may not be based upon surmise or conjecture. Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).

Id., 467 Pa. at 60, 354 A.2d at 550. See also, Commonwealth v. Pronkoskie, supra 498 Pa. at 251, 445 A.2d at 1206.

We conclude that the trial court’s analysis lacks consideration of the unique facts of this case. It is not apparent, for example, whether the court considered the evidence from a Commonwealth witness that appellant had turned onto Route 19 before Officer Bryson engaged his lights and siren, or whether the court considered the time interval when the appellant’s car was not in the view of Officer Bryson. The absence of consideration of these facts makes the guilty verdict not a balancing of the evidence, but rather tantamount to surmise or conjecture. We conclude that the court’s description of the issues as a credibility question is not accurate inasmuch as the testimony is not in conflict. As such, the resulting verdict is shocking to our judicial conscience and we are convinced that the trial court abused its discretion. Consequently, our only recourse is to vacate the judgment of sentence and remand for a new trial.

Vacated and Remanded. Jurisdiction is not retained.

BROSKY, J., concurs in the result.

      . This issue is waived because the appellant raised no objection to the procedure at the time of trial. Pa.R.Crim.P. 1123(a).

      . This final issue was not raised in appellant’s post-verdict motions and is consequently waived. Pa.R.Crim.P. 1123. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

      . We further note that the appellant’s vehicle was not “brought to a stop”, that is stopped by Officer Bryson, but rather had stopped when Officer Bryson caught up to it.


author: ROBERTS, Judge:

text:
    482 A.2d 1001
    Frederick S. TRUXAL, and Edna B. Truxal, His Wife, Appellants at No. 938 Pittsburgh, 1982, v. Donald E. TRUXAL, Alias Dictus, D. Eugene Truxal, and Nancy Truxal, His Wife, Robert R. Truxal, and Martha Lou Crothers, All of the Heirs of J.R. Truxal, Deceased. Appeal of Donald E. TRUXAL, Alias Dictus, D. Eugene Truxal and Nancy Truxal, His Wife, at No. 971 Pittsburgh, 1982.
    Superior Court of Pennsylvania.
    Submitted July 10, 1984.
    Filed Sept. 28, 1984.

      John W. Pollins, III, Greensburg, for Frederick Truxal, et al., appellants (at No. 938) and appellees (at No. 971).
    Donald J. Snyder, Jr., Greensburg, for Donald Truxal, et al., appellants (at No. 971) and appellees (at No. 938).
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROBERTS, Judge:

These are cross-appeals taken from a judgment entered in a three-count action to quiet title. We affirm the judgment in favor of plaintiffs on Count I and affirm the judgment in favor of defendants on Counts II and III.

Count I

The parcel of land at issue in Count I is located in Unity Township, Westmoreland County, as are the parcels at issue in Counts II and III. Its former owner, J.R. Truxal, died in 1934, leaving a will which provided:

“I give and bequeath to my sons, Frederick S. Truxal, Robert R. Truxal, and A.N. Truxal, or their heirs, at the death of my beloved wife, the tract of land ... on condition that Robert R. Truxal pay to Frederick S. Truxal, the sum of $300.00 within two years from the date of death of my beloved wife.”

J.R. Truxal’s wife died in 1938, and Robert Truxal did not pay plaintiff Frederick Truxal in accordance with the “condition” set forth above. Plaintiffs, in Count I of their Complaint, claimed that payment by Robert Truxal was a condition precedent to his entitlement to a share of the property. The Court of Common Pleas of Westmoreland County agreed, and held that “[u]pon the failure of the condition precedent, the undivided one third interest of Robert R. Truxal was equally divided between [plaintiff] Frederick S. Truxal and A.N. Truxal.”

Defendants, who are the heirs of Robert R. Truxal, maintain that Robert R. Truxal had an interest in the property which vested automatically upon the death of J.R. Truxal, and that it was thus plaintiffs’ burden to commence an action to divest Robert R. Truxal of his interest for his failure to make the payment of $300. According to defendants, plaintiffs should have commenced such an action within either twenty years (see 20 Pa.C.S. § 3554) or twenty-one years (see 42 Pa.C.S. § 5530) after the expiration of the period prescribed for payment in J.R. Truxal’s will. The period for payment expired in 1940, two years after the death of J.R. Truxal’s wife, who died in 1938. Because the present action was not commenced until March 19, 1979, defendants urge that the action should have been deemed untimely, by at least eighteen years, if not nineteen.

Testator J.R. Truxal’s clear intent in conveying the 27-acre tract “on condition that Robert R. Truxal pay ... within two years ...” was to attempt to assure that Robert Truxal fulfilled his financial obligations to his brother, plaintiff Frederick Truxal. Testator’s designation of a specific time-frame for performance “is a circumstance indicating that it is a condition precedent,” Thompson Estate, 304 Pa. 349, 353, 155 A. 925, 926 (1931), which makes us certain that testator intended that Robert Truxal take no interest in the 27-acre parcel if he did not fulfill his obligation.

Defendants suggest that the entire gift of the 27-acre parcel should be deemed to have failed upon Robert Truxal’s nonperformance, and that the parcel should be divided according to the law of intestate succession. We agree with the court of common pleas that the controverted portion of decedent J.R. Truxal’s will is properly construed to constitute a residuary clause, whose beneficiaries other than Robert Truxal are to share in the portion of the bequest to Robert Truxal which failed. See 20 Pa.C.S. § 2514(11). As the court noted, “[t]o hold otherwise would take any sanction away from Robert R. Truxal’s failure to pay the $300.00 to Frederick within two years of the date of [the death of J.R. Truxal’s spouse].” Accordingly, the judgment in favor of plaintiffs on Count I is affirmed.

Counts II and III

Titles to the parcels at issue in Counts II and III are controlled by the same written instruments and the same statutory provisions. By deed absolute on its face, executed on March 28, 1960, Robert Truxal and his spouse conveyed an undivided one-half interest in the parcels to plaintiffs, who owned the other one-half interest, in the parcels. On the same day, in a separate written instrument captioned a “Trust Agreement,” the grantors and the grantees stated that the conveyances were intended to be made “in trust for [Robert Truxal and his spouse].” Under the terms of the Trust Agreement, Robert Truxal and his spouse were to pay plaintiffs $3500 (with interest) in monthly installments. The agreement required plaintiffs to reconvey the undivided one-half interests to Robert Truxal and his spouse on their successful completion of the payment schedule, but authorized plaintiffs “to terminate the trust erected by this agreement and divest the equitable title resulting from this agreement and thus become owners in fee simple of said real estate” upon any default in payment. The “Trust Agreement” was not acknowledged and recorded.

Counts II and III alleged, and it is not disputed, that only-intermittent installment payments had been made, and that all payments had ceased as of December 1968. On April 16, 1979, defendants filed preliminary objections to Counts II and III in the nature of a motion to strike, which averred that the transaction of March 28, 1960, constituted a mortgage, and that “[t]he sole remedy available to the Plaintiffs in order to foreclose the equity of redemption of the Defendants is an action in Mortgage Foreclosure.”

On September 21, 1979, the court of common pleas dismissed the preliminary objections and directed defendants to file a responsive pleading. Defendants did so on October 11, 1979, by filing answers and new matter to each count of the Complaint. In new matter, defendants averred that because of the “defeasance clause” contained in the Trust Agreement of March 28, 1960, the relationship between the parties to the transaction of that date was “one of Mortgagor and Mortgagee and the rights of the Plaintiffs in the property are subject to an equity of redemption which cannot be extinguished by an Action in Quiet Title.” Plaintiffs filed replies to the new matter, and averred that defendants’ assertion of a right of redemption was time-barred. On motion for summary judgment, the court sustained defendants’ claim and thus directed entry of judgment in favor of defendants on Counts II and III.

Plaintiffs contend that defendants first asserted a right of redemption on October 11, 1979, and that the assertion was untimely under the Judicial Code, 42 Pa.C.S. § 101 et seq. Plaintiffs read the Judicial Code to have required the assertion of the right by June 27, 1979, three and one-half months prior to the date on which the right of redemption was allegedly first asserted.

Section 5526(3) of the Judicial Code provides:

“The following actions and proceedings must be commenced within fivé years:
* * * # * *
An action to enforce any equity of redemption or any implied or resulting trust as to real property.”

42 Pa.C.S. § 5526(3). This section of the Code was enacted by the Judiciary Act of 1976, Act of July 9, 1976, P.L. 586, § 2, and was made effective as of June 27, 1978. See Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202. Also made effective June 27, 1978, was section 25 of the Judiciary Act of 1976, which provides:

“Any civil action or proceeding:
(1) the time heretofore limited by statute for the commencement of which is reduced by any provision of this act; and
(2) which is not fully barred by statute on the day prior to the effective date of this act; may be commenced within one year after the effective date of this act, or within the period heretofore limited by statute, whichever is less, notwithstanding any provisions of Subchapter B of Chapter 55 of Title 42 (relating to civil actions or proceedings) or any other provision of this act providing a shorter limitation.”

Act of July 6, 1976, P.L. 586, § 25(a). Under prior law, an action “to enforce any equity of redemption, after re-entry made for any condition broken,” had to be brought within five years after accrual. Act of April 22, 1856, P.L. 532, § 6, 12 P.S. § 83 (1953) (emphasis supplied). Our Supreme Court has interpreted prior law as follows: “[T]he words ‘to enforce an equity of redemption’ ... are confined to such an equity ‘after re-entry made for any condition broken,’ and have no application to the equity of redemption of a mortgagor.” Ballentine v. White, 77 Pa. 20, 26 (1874).

In light of prior law, as interpreted by our Supreme Court, it must be concluded that section 5526(3) of the Judicial Code does, indeed, effect a reduction of “the time heretofore limited by statute for the commencement of [a proceeding]” for purposes of section 25 of the Judiciary Act of 1976. Plaintiffs are thus correct in contending that defendants were required to assert a right of redemption by June 27, 1979, the date which was “one year after the effective date” of the Judicial Code.

Plaintiffs are incorrect, however, in contending that defendants did not assert their right until October 11, 1979, when defendants filed their answers and new matter. On April 16, 1979, defendants filed the preliminary objections which sought the dismissal of Counts II and III on the specific ground that plaintiffs had to proceed through an action in mortgage foreclosure “in order to foreclose the equity of redemption.” This assertion, which was made well within one year of the effective date of the Judiciary Act of 1976, differs from the subsequent assertion contained in new matter only in procedural context. Had defendants’ preliminary objections been dismissed and defendants been directed to file a responsive pleading prior to June 27, 1979, defendants surely could have timely filed the new matter which plaintiffs concede to be sufficient. We hold, therefore, that defendants’ assertion of their right of redemption was not untimely under the Judicial Code.

Plaintiffs additionally contend that the defendants’ assertion of a right of redemption is barred by the “Defeasance Act,” Act of June 8, 1881, P.L. 84, § 1, amended by Act of April 23, 1909, P.L. 137, § 1, 21 P.S. § 951 (1955). The Defeasance Act, as amended, provides:

“No defeasance to any deed for real estate, regular and absolute on its face, made after the passage of this act, shall have the effect of reducing it to a mortgage, unless the said defeasance is in writing, signed and delivered by the grantee in the deed to the grantor; and in so far as it may effect any subsequent grantee or mortgagee of such real estate, for value, unless it is also acknowledged and recorded in the office for the recording of deeds and mortgages in the county wherein the said real estate is situated, before the execution and delivery of such subsequent grant or mortgage; and such defeasances shall be recorded and indexed as mortgages by the recorder.”

The “defeasance” in this case, the Trust Agreement of March 28, 1960, clearly was “in writing, signed and delivered by the grantee in the deed to the grantor.” Plaintiffs contend that the defeasance is nevertheless void because it was not “acknowledged and recorded.”

Plaintiffs’ contention may have had vitality under the original version of the Defeasance Act, but is contrary to the express terms of the Act as amended, which requires acknowledgement and recordation only “in so far as it may effect any subsequent grantee or mortgagee.” As is explained in Ladner on Conveyancing in Pennsylvania,

“the defeasance ... prior to 1909 ... had to be recorded. Since 1909 ... recording the defeasance is required only if the interest of a subsequent grantee or mortgagee for value is to be affected. This is manifestly more equitable to both parties, for the only one who needs the protection of recording is a subsequent grantee or mortgagee who has given value on the faith of the absolute deed appearing of record. The 1909 amendment has also eliminated the hardship under the previous law when the intended mortgagee took advantage of the omission to comply with the technical requirement that the defeasance be recorded, thus obtaining for himself a fee simple title when he was intended to have only a mortgage.”

Vol. II, § 12.11 at pp. 19-20 (rev. 4th ed. 1979) (footnotes omitted). Whatever may have been the rights of “subsequent grantees or mortgageés,” plaintiffs thus may not avoid the otherwise proper defeasance for want of acknowledgement and recordation.

Our careful review of the record having convinced us fully that the court of common pleas properly adjudicated the rights and obligations of the parties with respect to all three parcels at issue, the judgment entered in accordance with the court’s adjudication must be, and is, affirmed.

       A.N. Truxal’s share of the property, an undivided one-half interest, was purchased by plaintiffs and by Robert Truxal and his spouse. Each couple acquired a one-half share of A.N. Truxal’s one-half interest, thus giving plaintiffs an additional one-fourth interest in the property.


author: PER CURIAM:

text:
    482 A.2d 1005
    Bernard John GIANGIORDANO, Appellant, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 25, 1984.
    Filed Sept. 28, 1984.

      Richard A. Stanko, Media, for appellant.
    Owen W. Nash, Media, for appellee.
    Before McEWEN, BECK and CERCONE, JJ.
   PER CURIAM:

At issue in this appeal from judgment on the pleadings in favor of appellee, Allstate Insurance Co., is the timeliness of an action seeking work loss benefits occasioned by an accident which occurred more than five years prior to the commencement of the instant action. Appellant argues that suit was timely commenced as instituted within two years of the payment of workmens’ compensation benefits which appellant argues are “no-fault benefits” for purposes of the statute of limitations contained in Section 106(c)(1) of the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.106(c)(1). We find that the payment of medical expenses and benefits by the workmens’ compensation carrier does not affect the running of the statute of limitations applicable to actions seeking no-fault benefits and, therefore, affirm the judgment entered on the pleadings against appellant by the eminent President Judge Francis J. Catania.

Appellant, Bernard Giangiordano, acting within the course and scope of his duties as an employee of Philadelphia Electric Company and while occupying a vehicle owned by his employer, was injured in an automobile accident on September 29, 1975. Appellant received workmens’ compensation benefits from the date of the accident through February of 1980. Almost six years after the accident, on September 21, 1981, appellant commenced this action against appellee, his no-fault insurance carrier, seeking excess work loss benefits not compensated for by workmens’ compensation. See Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980). Appellee sought judgment on the pleadings on the grounds that any action for work loss benefits was barred by Section 106(c)(1) of the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.106(c)(1). The trial court found the action barred by the statute and, therefore, caused judgment to be entered in favor of appellee.

Appellant argues that the instant action, although commenced almost six years after the date of the accident giving rise to the claim for lost wages, is not barred by Section 106(c)(1) of the No-fault Act. Appellant argues that workmens’ compensation benefits are a form of no-fault benefits and that the instant suit, commenced within two years of payment of such “no-fault benefits”, was commenced in a timely fashion. We disagree.

Section 106(c)(1) of the No-fault Act provides:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

Section 106(c)(1) provides that in those instances where there has been no payment of no-fault benefits, suit “must be commenced within two years of each occurrence of work loss, and not later than two years after the victim’s accrued economic detriment from work loss reaches the statutory maximum amount recoverable, $15,000, 40 P.S. § 1009.-202(b)(2), and, in any case, not later than four years after the accident. Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 503 Pa. 547, 550, 469 A.2d 1388, 1389 (1983) (emphasis supplied). Accord: Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 539, 469 A.2d 1382, 1384 (1983). Thus, in the absence of a finding that appellant has previously received “no-fault benefits”, any action commenced more “than four years after the accident” is barred by virtue of the provisions of Section 106(c)(1). Appellant concedes that his action for work loss benefits is time barred under the above-quoted section of the No-fault Act if and only if it is determined that workmens’ compensation benefits are not no-fault benefits.

Appellant argues that he has received “no-fault benefits” in the form of workmens’ compensation benefits and, therefore, commenced the instant action in a timely fashion as such “an action for further benefits ... may be commenced not later than two years after the last payment of benefits.” 40 P.S. § 1009.106(c)(1). (emphasis supplied).

The No-fault Act defines “no-fault benefits” as “basic benefits, added loss benefits, or both.” 40 P.S. § 1009.103. “Basic loss benefits” are defined in the same section of the Act as “benefits provided in accordance with this act for the net loss sustained by a victim, subject to' any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other items and conditions provided or authorized in accordance with this act. . . .” 40 P.S. § 1009.-103. (emphasis supplied). Since workmens’ compensation benefits are not “benefits provided in accordance with ” the No-fault Act but, rather, are benefits provided in accordance with the provisions of the Pennsylvania Workmens’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 et seq., appellant’s argument that workmens’ compensation benefits are “no-fault benefits” must fail.

Judgment on the pleadings “is only appropriate where no material facts remain in dispute ... [and] the moving party’s right to prevail is so clear than a trial would be a fruitless exercise. . . .” Williams v. Lewis, 319 Pa.Super. 552, 555, 466 A.2d 682, 683 (1983) (citations omitted). The distinguished trial judge properly entered judgment on the pleadings in favor of appellee in the instant case as there existed no factual dispute and the action filed by appellant seeking work loss benefits was clearly barred by Section 106(c)(1) of the No-fault Act.

Judgment affirmed.

      . Appellant alleged in his complaint that he had received workmens’ compensation benefits as recently as February 28, 1980.

      . "Added loss benefits” are defined as "benefits provided by added loss insurance in accordance with section 207 of this Act. " 40 P.S. § 1009.103 (footnote omitted).


author: WICKERSHAM, Judge:

text:
    482 A.2d 1008
    Harry GRAND, Appellant, v. Fred DURST.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Oct. 5, 1984.

      William W. Spalding, Philadelphia, for appellant.
    Roger E. Legg, West Chester, for appellee.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   OPINION

WICKERSHAM, Judge:

Harry Grand appeals from the order of the Court of Common Pleas of Chester County sustaining Fred Durst’s exception to the lower court’s initial decision and granting judgment in favor of Durst.

The instant litigation arose out of an automobile accident on July 28, 1977 in which a vehicle driven by appellee Durst rear-ended appellant Grand’s automobile. Grand filed this suit alleging that, as a result of Durst’s negligence, he sustained a strained and partially torn rotator cuff, bicepital tendonitis, and a cervical sprain, causing him severe pain and suffering in or around his arm, shoulders, neck, and back.

A non jury trial was held before the Honorable Charles B. Smith on March 17 and 18, 1982. At the close of the trial, defendant-appellee Durst moved for a directed verdict, claiming that plaintiff-appellant Grand failed to plead and prove that any of the no fault thresholds had been exceeded. The court denied appellee’s motion and entered a verdict in favor of appellant in the amount of $7,000.00. Appellee filed an exception reiterating his contention that appellant failed to plead and prove that his cause of action met any of the requirements excepting it from the No Fault Act’s general abolition of tort liability. Upon reconsideration of this argument, the court sustained appellee’s exception and entered a verdict in favor of appellee. This appeal timely followed.

Appellant presents the following issues on appeal:

1. Did the lower court err in its application of the holding in Bromiley v. Collins, 1 D & C 3d 94 (1977) to the facts of the present case creating a disparity of interpretation and application of the No-Fault Act among the Common Pleas Courts?
2. Did the lower court err in determining that Appellant’s Complaint did not comply with the No-Fault Act, 40 P.S. § 1009 et se[q]., and dismissing it for non compliance even though Appellant had moved to amend under Rule 1033 of the Pennsylvania Rules of Civil Procedure which the court had allowed by denying Appellee’s motion of nonsuit?
3. Did the testimony of Appellant’s expert witness and Appellee’s witness as to the “serious and permanent” nature of Appellant’s injury satisfy the requirements of Section 301(a)(5)(B) of the No-Fault Act?

Brief for Appellant at 2.

Because of our disposition of appellant’s third argument, we find it unnecessary to address his first two issues. Judge Smith found that regardless of whether appellee timely raised appellant’s failure to properly plead compliance with the No Fault Act’s threshold requirements and regardless of whether appellant should have been permitted to amend his complaint, appellant failed to prove either serious and permanent injury or medical expenses in excess of $750.00 and, therefore, a verdict must be entered in favor of appellee. We agree.

Generally, the No Fault Act abolishes tort liability for injuries arising out of the maintenance or use of a motor vehicle. Section 301(a)(5) of the Act, however, sets forth an exception which permits tort actions for general damages if the plaintiff meets one of its several “threshold” provisions. Only the first two “threshold” requirements are relevant to the instant case; they provide:

(5) A person remains liable for damages for non-economic detriment if the accident results in:
(A) death or serious and permanent injury; or
(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750)

In summary, appellant could recover damages in a tort action against appellee upon proof that he had suffered “serious and permanent injury”, (section 301(a)(5)(A)) or that his medical expenses exceeded $750.00 (section 301(a)(5)(B)).

The lower court held that appellant failed to prove that his injuries were “serious and permanent.” No appellate cases have specifically addressed the meaning of the terms “severe and permanent” for purposes of section 301(a)(5)(A). It would seem obvious, however, that plaintiff cannot rely on his own subjective statements and feelings, but rather, must establish his proof through the presentation of expert medical testimony. Instantly, appellant’s expert, Dr. H. Warren Goldman, never explicitly stated that appellant’s condition was severe and permanent. Upon a thorough review of Dr. Goldman’s deposition, we find very little testimony indicating the witness’ analysis of the severity and permanence of appellant’s condition. When asked what his prognosis for appellant was, the doctor responded:

I think that if nothing is done, then I think that he’s not going to get much better than he is, and he probably would get worse, because this is a progressive syndrome, the cervical spondylosis.
If something is done, I think, surgically, I think, there is a reasonable chance that he would be significantly improved.

Deposition of Dr. H. Warren Goldman at 24.

The doctor later testified: “I think that the probability is, he will continue to have pain, although, there are instances, and not rare ones, where these things can remit spontaneously.” Id. at 30. We agree with the lower court that Dr. Goldman’s testimony did not establish that appellant’s injuries were permanent and severe. Neither does an examination of appellee’s expert witness’ testimony lead us to that conclusion. Therefore, we hold that the lower court did not abuse its discretion in finding that appellant failed to meet the threshold requirement of section 301(a)(5)(A) of the No Fault Act.

Appellant also failed to establish medical expenses in excess of $750.00 as required by section 301(a)(5)(B). While copies of medical bills were attached to appellant’s interrogatories and to the transcript of Dr. Goldman’s deposition, no documentation of these bills was admitted into evidence. The record indicates that the court refused to admit these documents because they were never authenticated by Dr. Goldman or any other witness. R.R. at 24a-25a. In fact, after thoroughly examining the record, we are unable to determine if appellant’s counsel ever attempted to authenticate the documents or offer them into evidence.

The only testimony as to medical expenses is Dr. Goldman’s statement that one option open to appellant might consist of surgery that would cost “in the neighborhood of about two thousand dollars.” Deposition of Dr. H. Warren Goldman at 27. This surgery, however, has never actually been performed, nor is it planned. It is simply a possible alternative which appellant is free to accept or reject. The $750.00 threshold cannot be fulfilled by reliance on conjecture that this surgery might be performed at some time in the future. See Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981).

We agree with the lower court that judgment must be entered in favor of the appellee because appellant failed to prove that he met any of the requirements excepting this litigation from the No Fault Act’s general abolition of tort liability.

Order affirmed.

      . § 301(a) of the No Fault Act. Act of July 19, 1974, P.L. 489, No. 176, art. III, § 301, 40 P.S. § 1009.301.

      . Id. 40 P.S. § 1009.301(a)(5).

      . The lower court held that appellant’s failure to meet the threshold requirements deprived it of jurisdiction. Lower ct. op. at 3. The Pennsylvania Supreme Court seems to indicate that the issue is not one of jurisdiction, “but of the plaintiff’s right to maintain an action for damages.” Martin v. Soblotney, 502 Pa. 418, 426, 466 A.2d 1022, 1026 (1983). In any event, it is clear that because appellant failed to meet the threshold requirements, he cannot be awarded a verdict in his favor.


text:
    482 A.2d 1010
    William UBER, Jr., Late a Minor and His Parents and Natural Guardians, William Uber, Sr. and Gail Uber and William Uber, Sr. and Gail Uber In Their Own Right v. PHILADELPHIA TRANSPORTATION COMPANY. Appeal of Paul PRUSS, Jr., Guardian.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Oct. 5, 1984.

      Irwin Paul, Philadelphia, for appellant.
    Daniel M. Rendine, Philadelphia, for participating party.

      Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   OPINION

WICKERSHAM, Judge:

Paul Pruss, Jr., guardian of the estate of William Uber, Jr., appeals from the decision of the Court of Common Pleas of Philadelphia County denying his petition to modify a prior order of the court incorporating a settlement agreement entered into by the parties.

In March of 1968, the law firm of Bernstein & Gembala brought an action on behalf of William Uber, Jr., then a minor, and his parents in their own right, against the Philadelphia Transportation Company for injuries sustained by the minor in an automobile accident. In March of 1981, William Uber, Jr. was declared an incompetent and Paul Pruss, Jr. was appointed as his guardian. Following a lengthy series of negotiations, the parties entered into a settlement agreement in May of 1981. The settlement agreement and release resulted from conferences between Bernstein and Gembala, plaintiffs’ attorneys, and the defendant corporation. Irwin Paul, Esquire, attorney for Paul Pruss, Jr., guardian, participated in the negotiations.

In May of 1981, a settlement hearing based on these prior negotiations was held. The parents of William Uber, Jr., his guardian, the guardian’s attorney, the attorneys for the plaintiffs, and the attorney for the defendant attended. On May 14, 1981, the court entered an order approving the settlement agreement.

On August 25, 1982, the guardian, Paul Pruss, Jr., appellant herein, filed a petition to amend the order of May 14, 1981. Appellant based this request on the case of Johnson v. Sears, Roebuck, and Co., 291 Pa.Super. 625, 436 A.2d 675 (1981), a decision of this court filed on October 30, 1981, which set out a formula for computation of attorneys fees based on the facts of that case. Appellant argued that the Johnson case controlled the settlement agreement herein, and that therefore, the settlement agreement should be amended to conform with Johnson. The court granted a hearing but limited it to legal argument only. On October 14, 1982, the lower court filed an opinion denying appellant’s petition to amend the court’s order of May 14, 1981. This appeal followed.

Appellant states the sole issue in this appeal as follows: Where the Superior Court has fixed a formula for determining counsel fees in a case where the settlement is funded by a downpayment of cash plus the purchase of an annuity insurance policy, may the Lower Court disregard the set formula and apply a different standard.

Brief for Appellant at “Table of Contents.”

Instantly, the lower court correctly summarized the relevant provisions of the settlement agreement as follows:

Under the terms of this settlement SEPTA agreed to pay $250,000 to the incompetentes] [sic] guardian. Thereafter, for the next 240 months (20 years), SEPTA guaranteed monthly payments to be paid to the guardian of incompetent’s estate, “whether he survives the said 20 years or not.” Thereafter, the guardian was to receive monthly payments for the incompetent’s natural life.
Irwin Paul, Esquire, counsel for the guardian, agreed that the settlement was fair and reasonable.
Bernstein & Gembala, Esquires’ counsel fee was to be $100,000 to be paid out of the $250,000 and, thereafter, Bernstein & Gembala were to receive V3 of each monthly payment as it became due and payable.
To finance this settlement, SEPTA purchased a Single Premium Annuity policy on the life of William Uber, Jr., for which it yielded the monthly sum of $1,650 per month, guaranteed for 20 years and the monthly sum thereafter of $1,250 for the incompetent’s natural life.
Thus, when the incompetent dies, the monthly fees of Bernstein & Gembala terminate, if death occurs after 20 years.

Lower ct. op. at 1-2.

Appellant contends that the attorneys’ fees awarded to Bernstein & Gembala pursuant to this settlement agreement do not comport with the formula set out in Johnson, supra. In Johnson, the attorneys’ fees approved by the lower court were based on the following method of computation:

In computing the gross settlement value on which to base their one-third contingent fee, Respondents first reduced the minor’s right to receive the life annuity payments to its present value. The projected payments ($23,000.00 per annum with a three (3%) percent yearly increment) were multiplied by the anticipated life expectancy of the minor (50 years as computed by an actuary and based on Standard Life Expectancy Tables) resulting in a total of $2,594,170.00. Then, this amount was reduced to present value by six (6%) percent simple interest resulting in a figure of $1,050,422.00. Respondents then added the value of the case payments, $600,000.00, to the present value of the annuity, $1,050,422.00, to arrive at a figure of $1,650,422.00, which represented the total of all present benefits under the settlement agreement. Respondents then set their contingent fee at $500,000.00, less than one-third of the total value of the settlement.

Johnson, supra, 291 Pa.Superior Ct. at 628, 436 A.2d at 677.

This court found that the computation method detailed above was unsatisfactory because

it provides for the attorneys’ contingency fee to be based on the total amount of the Johnsons’ future possible payments despite the fact that the Johnsons may never receive that amount. After the expiration of the twenty year period for which the annuity payment is guaranteed, appellants only have a right to receive an annuity payment each year that their son actually lives. Nevertheless, Mr. Bernstein and Mr. Mazis avoided the inherent risk in the annuity settlement and based their attorneys’ fees on the entire amount the Johnsons would receive if their son lived the normal life expectancy of a fifteen-year-old boy.

Id., 291 Pa.Superior Ct. at 628-29, 436 A.2d at 677 (footnote omitted).

Appellee, Bernstein & Gembala, contends that the facts of the instant case can be distinguished from Johnson, and that, therefore, Johnson is not controlling. Furthermore, appellee argues that Johnson should not be applied to the instant case since it was decided five months after the entry of the lower court’s order approving the settlement. We agree.

We must first decide whether we should retroactively apply the computation method set forth in Johnson to the instant case. Ordinarily, changes in decisional law which occur during litigation will be applied to cases pending on appeal. McCloskey v. W.C.A.B., 501 Pa. 93, 460 A.2d 237 (1983).

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

Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Accord August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981).

These legal standards are not applicable here. The instant case was not on direct appeal at the time Johnson was decided. The parties had agreed to, and the court had approved, a settlement five months before Johnson was filed. In those five months, the guardian had not requested a modification of the settlement and had not filed an appeal. He expressed no dissatisfaction with the settlement until after Johnson was filed. In fact, both the guardian and his attorney had participated in the settlement negotiations and had approved of the settlement. Given these circumstances, it would be inappropriate to modify the settlement based on Johnson.

Second, it would be especially inappropriate to apply Johnson to the instant appeal given the distinguishing facts of the two cases. In Johnson, the court found a problem with attorneys’ fees computed on the basis of possible future payments that their clients might never receive. The settlement agreement in the instant case, however, contains no such inequitable result. Instantly, Bernstein & Gembala will receive one-third of each annuity payment actually received by their clients. Though these payments extend into the future, they are, nevertheless, equitable.

The instant case was settled on facts and circumstances different than those which existed in Johnson. We will not disturb a structured settlement, agreed to by all parties and approved by the court, on the basis of the Johnson decision which was filed five months later.

Order affirmed.

      . Appellee argues that appellant waived his right to appeal in two respects: (1) he failed to file his appeal within thirty days of the entry of the original order as mandated by Pa.R.A.P. 903(a); and (2) he failed to file a petition to set aside the original order during the term of court in which it was entered as required by Philadelphia Rule of Civil Procedure No. 5, Star Rule No. 199. These allegations are based on appellee’s contention that the May 14, 1981 order was final, and since appellant did not appeal from that order, he is precluded from attempting to modify it after the appeal period has passed. While appellee’s argument is appealing, we note that the common pleas court’s authority is at its widest reach when it is acting as an equity court seeking to protect the person or property of an incompetent. Matter of Terwilliger, 304 Pa.Super. 553, 450 A.2d 1376 (1982). The common pleas court has a continuing interest in an incompetent’s estate. Id. Since the Court of Common Pleas of Philadelphia County felt that appellant’s petition was worthy of consideration, we will not refuse to address the merits of his appeal.

      . We recognize that the Johnson court declined to accept a similar computation method. Johnson, supra, 291 Pa.Superior Ct. at 630, 436 A.2d at 678. In doing so, the court stated that while this method may be equitable, it could be "unwieldly and impractical.” Instantly, the settlement agreement has been implemented; payments have been made. We find that the instant settlement agreement is workable and equitable.