author: CERCOME, Judge:

text:
    567 A.2d 680
    Gaela O’NEILL, Appellant, v. CHECKER MOTORS CORPORATION and Metro Transportation Company, t/a Yellow Cab Company and Cutco Leasing Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1989.
    Filed Dec. 14, 1989.

      Gaela O’Neill, appellant, in pro. per.
    Joseph F. McNulty, Jr., Philadelphia, Checker Motors, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCOME, Judge:

This is an appeal from a final order granting summary judgment in favor of defendant/appellee, Checker Motors Corporation, as against all parties. We affirm.

Appellant, Gaela O’Neill, commenced the personal injury action underlying the instant appeal in November of 1983. Represented by counsel, Ms. O’Neill alleged that on November 29, 1982, she was injured when the steering wheel on a taxicab she was driving collapsed causing the cab to go out of control and strike a guard rail. The complaint alleges that Checker Motors was negligent in failing to properly construct, inspect or warn of problems with the taxi, that Checker warranted the cab as being fit for its intended purposes, and that Checker is strictly liable under Restatement (Second) of Torts § 402A (1965). On November 29, 1988 the Honorable Samuel M. Lehrer entered an order granting summary judgment in favor of defendant/appellee Checker Motors as against all parties. After trial counsel was granted permission to withdraw from representation, appellant subsequently filed the instant timely pro se appeal contesting the grant of summary judgment.

Appellee initially argues that we should quash this appeal pursuant to various rules of appellate procedure. We exercise our discretion by declining to take such action because effective appellate review has not been precluded by the deficiencies of appellant’s brief. Pa.R.A.P., Rule 105, 42 Pa.C.S.A. See Hatter v. Landsberg, 386 Pa.Super. 438, 563 A.2d 146 (1989) and Bolus v. United Penn Bank, 363 Pa.Super. 247, 267 n. 2, 525 A.2d 1215, 1225 n. 2 (1987), allocatur denied 518 Pa. 627, 541 A.2d 1138 (1988) (declining to quash where effective appellate review was possible despite deficiencies in briefs as filed). We are cognizant of the fact that Ms. O’Neill has prepared the appeal brief on a pro se basis. While this court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because she lacks legal training. See, e.g., Mueller v. State Police Headquarters, 110 Pa.Commw. 265, 268, 532 A.2d 900, 902 (1987). As our supreme court has explained, “any layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing.” Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985).

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 103-04, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.; Hatter v. Landsberg, supra, 386 Pa.Superior Ct. at 440, 563 A.2d at 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Appellant’s claims against Checker Motors stem from allegations that the taxicab she was driving at the time of the accident was improperly constructed and unfit for its intended purposes; that Checker Motors was negligent in failing to inspect or warn of problems with the taxi; and that Checker Motors is strictly liable under Restatement (Second) of Torts § 402A (1965). In her negligence action against Checker Motors as the manufacturer or seller of a product, appellant was required to prove that the product was defective, that the defect caused the injury sustained by appellant, and that in manufacturing or supplying the product, Checker Motors failed to exercise due care. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 53, 485 A.2d 408, 424 (1984) appeal dismissed 508 Pa. 643, 500 A.2d 428 (1985). To succeed on a malfunction theory, appellant had to present a case-in-chief evidencing the occurrence of the malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction. Rogers v. Johnson & Johnson Products, Inc., — Pa. ——, 565 A.2d 751, 754 (1989). A products liability plaintiff who asserts liability due to lack of warning must prove both that the lack of warning was unreasonably dangerous and that it was the proximate cause of the accident. Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 51, 527 A.2d 140, 147 (1987). To present a prima facie case of strict liability under § 402A, a plaintiff must establish that the product was defective and that the defect caused the plaintiffs injury. Rogers, supra, — Pa. at-, 565 A.2d at 754; Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982).

In the instant case, we have carefully reviewed the parties’ briefs and the entire record before us. As an appellate court, we may consider only facts which have been duly certified in the record on appeal. Pa.R.A.P. 1921; Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988). It is the duty of the appellant to provide a record which is sufficient to permit meaningful appellate review. Fox v. Gabler, 377 Pa.Super. 341, 346, 547 A.2d 399, 401 (1988). Appellant’s case, as presented to the trial court, is heavily flawed. The record contains no history of what occurred between the time the vehicle was manufactured and when it was made available to Metro Transportation Company. The record does not inform us about the cab’s state of repair when appellant received it, nor can • we ascertain the amount of time in which appellant was in sole possession of the vehicle, and the service record or record of the mechanical condition of the cab during that time. In sum, the record on appeal simply does not contain the documentation necessary to substantiate any of appellant’s negligence claims.

5. Taxicab Operation During Lease Period
a. Lessee, before taking possession of a Taxicab shall inspect the Taxicab including testing the brakes, both foot and emergency, lights, signal lights, .and all other equipment. Lessee shall not take possession of the Taxicab if any defects are noted and should immediately report same to Lessor. Lessee's taking possession of the Taxicab shall constitute conclusive evidence of Lessee's satisfaction therewith.

The second problem with appellant’s case is that when Checker Motors filed its motion for summary judgment as against all parties, appellant failed to respond as she was required to do under Pa.R.C.P. No. 1035, 42 Pa.C. S.A. In pertinent part, Rule 1035 provides:

(b) ... The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.
(d) ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Checker Motors’ unopposed motion for summary judgment averred that after nearly five years of discovery, appellant had produced no facts of record upon which to base any allegation of negligence, breach of warranty, or strict liability. It appears that appellant elected to rest on her pleadings as she made no response to Checker’s motion. The mere fact that a party fails to submit countraffidavits does not automatically render summary judgment appropriate. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974). Nor does the failure to file affidavits, depositions, or other materials in opposition to the moving party’ motion guarantee that the motion will be granted. Wright v. North American Life Assurance Co., 372 Pa.Super. 272, 539 A.2d 434 (1988). However, a motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on the pleadings, unless a genuine issue of fact is made out in the moving party’s evidence taken by itself. Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 660 (1984); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). See First Mortgage Co. of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983) (summary judgment should not be granted unless moving party’s evidence, viewed in light most favorable to non-movant, clearly dispels existence of any genuine factual issue). Our review of the instant case, in accordance with all the above outlined standards, has convinced us that the trial court properly granted summary judgment to Checker Motors as against all other parties.

Order affirmed.

      . An order granting summary judgment to some, but not to all, defendants in a multiple defendant suit is a final appealable order as to those defendants released from litigation. French v. United Parcel Service, 377 Pa.Super. 366, 371-72, 547 A.2d 411, 414 (1988).

      . The Honorable Levan Gordon of the Court of Common Pleas of Philadelphia County, Civil Division, entered an order on December 8, 1988 granting a compulsory nonsuit in favor of defendants/appellees Metro Transportation Company t/a Yellow Cab Company and Cutco Leasing Corporation. A separate appeal has been filed pertaining to that order and it will not be discussed in connection with the instant case.

      . Appellee cites Pa.R.A.P., Rules 2101, 2111, 2114, 2116(a), 2117, 2118, and 2119, 42 Pa.C.S.A.

      . Section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

        (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
      Restatement (Second) of Torts § 402A (1965). Our supreme court adopted this approach in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

      . Appellant leased the taxicab in question from Metro Transportation Company t/a Yellow Cab Company. We note that the lease between the parties contains, inter alia, the following language:


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    567 A.2d 684
    F. Emmett FITZPATRICK, Appellant, v. PHILADELPHIA NEWSPAPERS, INC. and Anthony Lame.
    Superior Court of Pennsylvania.
    Argued April 18, 1989.
    Filed Dec. 14, 1989.

      James E. Beasley, Philadelphia, for appellant.
    Frank L. Corrado, Jr., Philadelphia, for appellees.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   ROWLEY, Judge:

On November 10, 1974, the Philadelphia Inquirer printed an article headlined “D.A. Gets Ex-Client Off Light.” The article reported that appellant F. Emmett Fitzpatrick, then Philadelphia District Attorney, had recommended that Joseph Nardello, who was being sentenced for his fifth felony, be placed on probation. According to the article, U.S. Supreme Court records showed that “in 1968, while a defense attorney, Fitzpatrick represented Nardello and a codefendant in a criminal case.” Appellant subsequently instituted the present action for defamation against appellees Philadelphia Newspapers, Inc., the publisher of the Inquirer, and Inquirer reporter Anthony Lame, the writer of the allegedly defamatory article.

Two assertions lie at the heart of appellant’s claim. First, appellant contends that he did not recommend probation for Nardello, but instead informed the sentencing judge that his office would have no objection to a sentence of probation and, in a phrase omitted from the Inquirer article, that “[w]e leave the matter entirely to your Honor.” Second, appellant asserts that while he had once presented to the U.S. Supreme Court a legal argument that was applicable to the case of Joseph Nardello, a client of A. Charles Peruto, as well as to the case of his own client, Isadore Weisberg, he did so because the rules of the Supreme Court allowed only one lawyer to argue on behalf of the two similarly situated clients. Nardello was never his “client,” appellant asserts, nor did he ever “represent” Nardello.

At the close of the trial of appellant’s libel action, the jurors were supplied with a verdict sheet which asked 1) whether the November 10, 1974 article was defamatory of appellant; 2) if so, whether the article was false; 3) if the article was both defamatory and false, whether appellees published it with either actual knowledge that it was false or with subjective awareness of its probable falsity (i.e., with malice); 4) if they did, whether appellant sustained actual injury as a result of the publication of the article; and 5) if he did, what amounts of compensatory and punitive damages should be assessed. The jury answered no to the first question, thus finding in favor of appellees without having to consider the remaining questions. Post-trial motions were filed and denied, judgment has been entered on the verdict, and appellant’s appeal is now before us. We affirm the judgment in favor of appellees.

Of the ten issues raised by appellant in this appeal, nine allege error on the part of the trial court. Appellant contends that the trial court erred in: 1) allowing testimony that appellant had taken the Fifth Amendment in a prior, unrelated proceeding; 2) refusing to instruct the jury that, as a matter of law, there was no attorney-client relationship between appellant and Nardello; 3) refusing to instruct the jury that the challenged article was, as a matter of law, defamatory; 4) instructing the jury that the defamatory nature of the challenged article must be proved by clear and convincing evidence; 5) instructing the jury that they were to give words “their ordinary meaning” and “not pick out and isolate particular words or phrases,” thus allowing the jury to reach an incorrect conclusion regarding the existence of an “attorney-client” relationship; 6) failing to answer questions submitted by the jurors in a manner that would alleviate their evident confusion; 7) refusing to grant a new trial on the ground that defense counsel, during closing argument, compared appellant to a mentally deranged movie character; 8) refusing to instruct the jury that an adverse inference could be drawn from the failure of appellee Anthony Lame, the writer of the challenged article, to appear as a witness; and 9) refusing to grant a mistrial after Carl Lunkenheimer, a former assistant district attorney, made highly prejudicial remarks concerning appellant and his counsel.

Although we have reviewed appellant’s claims of trial court error and have concluded that one or more of the claims may well have merit, it is appellant’s remaining claim which proves to be dispositive of this appeal. Appellant contends that, in addition to having established the falsity of the challenged article, he has also met the burden, imposed on defamation plaintiffs who are public officials by the U.S. Supreme Court’s decision in New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), of proving by clear and convincing evidence that in publishing the challenged article appellees acted with actual malice, that is, knowing the article was false or. with reckless disregard of its truth or falsity, Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 512-13, 546 A.2d 639, 642 (1988), alloc. denied, 522 Pa. 576, 559 A.2d 37 (1989). Having reviewed the record that has been certified to this Court, as well as the briefs and arguments of the parties, we are constrained to disagree. Our decision to affirm the trial court on this basis makes it unnecessary for us to decide the other issues raised by appellant, except to the extent that they have an impact upon the question of actual malice.

Preliminarily, we note that our conclusion that the actual malice issue is controlling rests on several considerations. It is, of course, settled law that we may affirm the decision of the trial court if it is correct on any ground. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977). The actual malice issue has in fact been presented to, and addressed by, the trial court. Appellees asserted in their trial brief that the facts of the case did not show actual malice; they made the same assertion in support of their unsuccessful motion for entry of a nonsuit at the close of appellant’s case; they sought a directed verdict, also unsuccessfully, at the close of the evidence; in response to appellant’s post-trial motions, they filed an “alternative motion for post-trial relief” arguing, as an alternative basis for entry of judgment, that the trial court’s denial of their motions for nonsuit and for a directed verdict was erroneous in view of appellant’s failure to prove actual malice; and the trial court addressed this issue in its opinion of September 21, 1988.

In addition, the parties have raised the actual malice issue in this appeal. Appellees urge us to affirm the judgment entered in their favor on the basis of what they contend is appellant’s failure to prove actual malice. Appellant, as noted above, asserts that he has met his burden of proving the existence of actual malice with clear and convincing clarity.

There is, finally, an even more fundamental basis for our conclusion that actual malice is the controlling question in this case. The sufficiency of the evidence to support a jury’s finding of actual malice is a question of law, Harte-Hanks Communications, Inc. v. Connaughton, —- U.S. -,-, 109 S.Ct. 2678, 2694, 105 L.Ed.2d 562 (1989), and a court reviewing such a finding is required to “ ‘exercise independent judgment and determine whether the record establishes actual malice with convincing clarity,’ ” id. at -, 109 S.Ct. at 2681 (quoting Bose Corporation v. Consumers Union, 466 U.S. 485, 514, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502 (1984)). Our duty in this regard is constitutionally based, id., and derives from “[o]ur profound national commitment to the free exchange of ideas, as enshrined in the First Amendment,” id. at -, 109 S.Ct. at 2695.

“Judges, as expositors of the Constitution,” have a duty to “independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ”

Id. (quoting Bose Corporation v. Consumers Union, 466 U.S. at 511, 104 S.Ct. at 1965). For that reason, after this Court, reviewing the appeal of the defendant publisher in Sprague v. Walter, 357 Pa.Super. 570, 589-90, 516 A.2d 706, 716-17 (1986), aff'd, 518 Pa. 425, 543 A.2d 1078 (1988), appeal dismissed, — U.S.-, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988), determined that a new trial was warranted to remedy an error of law by the trial court, the Court went on to review the record to determine whether the evidence was constitutionally sufficient to warrant a finding of actual malice or whether, on the contrary, the evidence was insufficient in that regard and the defendant was therefore entitled to judgment n.o.v. Indeed, when the U.S. Supreme Court first established the actual malice requirement for plaintiffs who are public officials in New York Times v. Sullivan, supra, the Court, after reversing the judgment entered in favor of the plaintiff, observed that “[sjince [plaintiff] may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine whether it could constitutionally support a judgment for [plaintiff].” 376 U.S. at 284-85, 84 S.Ct. at 728. After making “ ‘an independent examination of the whole record,’ ” id. at 285, 84 S.Ct. at 729 (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963)), the Court held that the evidence of actual malice was constitutionally insufficient to sustain a judgment for the plaintiff, id. 376 U.S. at 286, 84 S.Ct. at 729.

The same “considerations of effective judicial administration” which led to these decisions suggest that granting a new trial in the present case on the basis of trial court error might well prove to be an unnecessary and futile gesture if we do not first determine that the evidence offered by appellant would, on remand, be constitutionally sufficient to sustain a finding of actual malice. Accordingly, we will examine the record to determine whether, as appellant asserts, there exists clear and convincing evidence of actual malice. In addition, in order to determine whether evidence of actual malice may have been improperly excluded, we will consider appellant’s claim that the court erred in refusing to instruct the jury that an adverse inference could be drawn from appellee Anthony Lame’s failure to testify. Appellant avers that Lame is “a party to this action having knowledge bearing on the questions of falsity and actual malice” (Amended Brief for Appellant at 42).

It is indeed settled law that a party’s failure to testify at a civil trial raises an inference of fact that the party’s testimony would have been adverse or unfavorable to him. Beers v. Muth, 395 Pa. 624, 626-27, 151 A.2d 465, 465 (1959); Pratt v. Stein, 298 Pa.Super. 92, 151, 444 A.2d 674, 705 (1982); Schwegel v. Goldberg, 209 Pa.Super. 280, 284-85, 228 A.2d 405, 408 (1967). The fact that Lame was available to be called by either side does not bar the application of this rule, as it would if he were a non-party witness. Pratt v. Stein, 298 Pa.Super. at 151-52 n. 51, 444 A.2d at 705 n. 51; but see Bulman v. Myers, 321 Pa.Super. 261, 265-66, 467 A.2d 1353, 1355-56 (1983) (affirming refusal of adverse inference instruction without distinguishing between party-defendant, who was available but did not testify, and a non-party witness). However, if a plaintiff has not supplied evidence sufficient to meet his burden of proof, the adverse inference created by the defendant’s failure to testify will not supply it for him. Harring v. Com., Unemployment Compensation Board of Review, 70 Pa.Cmwlth. 173, 176, 452 A.2d 914, 916 (1982) (disapproved on other grounds, Vann v. Com., Unemployment Compensation Board of Review, 508 Pa. 139, 148 n. 2, 494 A.2d 1081, 1085 n. 2 (1985)); see also Pratt v. Stein, 298 Pa.Super. at 151, 444 A.2d at 705 (defendant’s failure to testify cannot supply negligence on his part because negligence must be shown affirmatively by plaintiff); Schwegel v. Goldberg, 209 Pa.Super. at 284, 228 A.2d at 408 (same). As this Court explained in Schwegel v. Goldberg, supra, what may be inferred from a defendant’s failure to testify is that the plaintiff and his witnesses truthfully described the happening of the events at issue. Id. at 285, 228 A.2d at 408. Thus, even if we assume that appellant was entitled to an adverse inference instruction and that, as a result, appellant and his witnesses should be regarded as credible, we are still required to determine whether the evidence supplied by appellant constitutes clear and convincing evidence that appellees acted with actual malice.

In determining whether appellees acted with actual malice, the standard to be applied is not objective (i.e., whether a reasonably prudent person would have published the challenged article), but subjective. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Curran v. Philadelphia Newspapers, 376 Pa.Super. at 514, 546 A.2d at 643. As the U.S. Supreme Court observes in its recent decision in Harte-Hanks v. Connaughton, supra,

[a]ctual malice ... requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson, 390 U.S. 727, 730 [88 S.Ct. 1323, 1325, 20 L.Ed.2d 262] (1968), we have made clear that the defendant must have made the false publication with a “high degree of awareness of ... probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74 [85 S.Ct. 209, 216, 13 L.Ed.2d 125] (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra [390 U.S.] at 731 [88 S.Ct. at 1325].

— U.S. at-, 109 S.Ct. at 2685-86. Failure to investigate, without more, will not support a finding of actual malice, nor will ill will or a desire to increase profits. Id. at -, 109 S.Ct. at 2685, 2696.

Our review of the record reveals that appellant has failed to provide clear and convincing evidence of actual malice. Appellant, relying on the 1976 decision of the Disciplinary Board of Pennsylvania which found that there had been no attorney-client relationship between himself and Nardello, contends that the absence of such a relationship was a fact which could have been learned by appellees prior to the writing of the challenged article if they had made a “true effort to ascertain the formal legal status of Mr. Fitzpatrick’s involvement in the United States Supreme Court” and had not drawn unsupported legal conclusions with “abandon” (Amended Brief for Appellant at 27). Whether additional investigation could have uncovered such a “fact” is highly debatable. At trial, Stephen Gillers, called by the defense as an expert witness in the area of professional responsibility and procedure, testified that in his opinion appellant represented Nardello for purposes of the Supreme Court argument and Nardello was, at the time of the argument, appellant’s client (N.T., June 7, 1988, at 36-37). If appellees, prior to publication of the article and without the benefit of a ruling by the Disciplinary Board, had sought expert advice in this matter, it is entirely possible that they would have received an opinion identical to that offered by Mr. Gillers at trial. For that reason, we decline to accept appellant’s characterization of the status of appellant’s relationship with Nardello as a “fact” which could have been discovered by appellees if they had been sufficiently diligent.

More importantly, however, we focus upon the investigatory efforts actually undertaken by appellees, not upon the additional efforts that might hypothetically have been undertaken. See Curran v. Philadelphia Newspapers, 376 Pa.Super. at 525, 546 A.2d at 648 (focus is upon what defendant did, not upon what it did not do). The answers of appellee Anthony Lame, the writer of the article, to interrogatories propounded by appellant in 1974 and read into evidence at trial indicate that he first learned of appellant’s participation in the Nardello case in August 1974 and that the delay in publishing the article was due to his (Lame’s) investigation and research. Lame also averred that he examined the entire record of the Nardello case on file with the Clerk of the U.S. District Court for the Eastern District of Pennsylvania and that an associate examined the entire record on file with the clerk of the U.S. Supreme Court. Assuming for the sake of argument that the article’s statements on the attorney-client issue were false, and that through additional investigation appellees could have reached the same conclusion in 1974 that was reached by the Disciplinary Board in 1976, we do not perceive in appellees’ actions the knowledge of falsity or serious doubts as to truth necessary to support a finding of actual malice. Mere negligence or carelessness, even if such were present here, is not evidence of actual malice. Id. at 519, 546 A.2d at 645. Evidence may be sufficient to support a finding of negligence in failing to discover misstatements, but constitutionally insufficient to show the recklessness required for a finding of actual malice. New York Times v. Sullivan, 376 U.S. at 288, 84 S.Ct. at 730.

Nor do we agree with appellant that the following statement of Anthony Lame, made in 1981 in response to a request for admission, establishes serious doubt on the part of appellees:

Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the nature of or existence of the attorney-client relationship between F. Emmett Fitzpatrick, Jr. and Joseph Francis Nardello prior to November 10, 1974.

We do not read Lame’s answer as an admission that in 1974 he entertained serious doubts as to the truthfulness of the statements made in the challenged article, but as a reluctance in 1981 to offer an opinion on what had become, following the Disciplinary Board’s findings and the claims raised by appellant in the present action, a highly technical question of law.

Appellant also argues that appellees’ refusal to print a retraction of the allegedly false assertions constitutes some evidence of actual malice. We note, however, that the Inquirer eventually published a front-page article headlined “DA Fully Cleared of Ethics Charges” (N.T., May 31, 1988, at 250). Moreover, while appellant testified that the Inquirer never printed a retraction, he never testified that he had actually asked the newspaper to do so.

Assuming for the sake of argument that the challenged article is both defamatory and false, we conclude that appellant has nevertheless failed to provide clear and convincing evidence that appellees knew of its falsity or published it with reckless disregard of its truth or falsity. For that reason, we affirm the judgment entered in favor of appellees and against appellant.

Judgment affirmed.

      . After discussing the meaning of the term "actual malice,” the trial court concluded that the jury made one or more of several determinations, all of which would indicate an absence of actual malice. In fact, as noted above, the jury did not reach the question of actual malice, as they found that the article in suit was not defamatory.

      . Our review reveals that none of the appellant’s other allegations of trial court error bears on the question of actual malice.

      . Appellees argue that the resolution of the adverse inference issue is controlled by this Court’s decision in Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986), aff’d, 518 Pa. 425, 543 A.2d 1078 (1988), appeal dismissed, — U.S.-, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988), also a defamation action brought by a public figure. In that case, reporter Greg Walter was one of a number of defendants who, by stipulation, were dropped from the case on the condition that the plaintiff be permitted to try the case as though they remained parties to the suit. 357 Pa.Super. at 575 n. 1, 516 A.2d at 709 n. 1. Although Walter did not testify, this Court held that an adverse inference was inappropriate in light of the fact that Walter had been extensively deposed and was available to be called by the plaintiff at trial. Id. at 611, 516 A.2d at 728. This ruling, without more, would dispose of the adverse inference claim raised by appellant in the present case.
      On appeal, however, the Supreme Court held that "the issue of whether Walter was medically incapable of being a witness for PNI [the defendant] was one that the trial court itself should have determined, not the jury____ In sum, we agree with the Superior Court’s conclusion that the trial judge ... erred in ruling that it was a jury question.” 518 Pa. at 442 n. 9, 543 A.2d at 1086 n. 9 (citations omitted). As the basis of the Supreme Court’s ruling differs from that of the Superior Court, we do not rely on the Superior Court’s ruling in the present case.


author: KELLY, Judge:

text:
    567 A.2d 690
    COMMONWEALTH of Pennsylvania v. Charles PATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 13, 1989.
    Filed Dec. 15, 1989.
    Ward A. Cotton, Norristown, for appellant.
    Mary M. Killinger, Asst. Dist. Atty., Norristown, for the Com., appellee.

      Before WIEAND, KELLY and HESTER, JJ.
   KELLY, Judge:

On August 25, 1989, this Court filed a memorandum which granted appellant’s counsel’s motion to withdraw on frivolity grounds. Appellant was informed in the memorandum of his right to proceed then with the appeal “pro se, or by privately retained counsel, or not at all.” See Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 929 (1988). This Court specifically granted appellant 30 days from the date of the filing of the memorandum to file a brief. The dead-line for filing has long since past with only stoney silence from appellant.

Turner does not indicate how or when an appellant must chose between proceeding “pro se, or by privately retained counsel, or not at all.” No rule has since been promulgated. In the absence of an express rule, we consider appellant’s failure to file a brief within 30 days, as directed, to be an election of the third alternative identified in Turner.

Appeal dismissed, with prejudice.


author: WIEAND, Judge:

text:
    567 A.2d 691
    Catherine M. LILES, Appellant, v. Paul W. BALMER, Jr. and Mary Balmer, Appellees.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1989.
    Filed Dec. 11, 1989.

      John S. Hollister, Jr., Troy, for appellant.
    W. Marshall Dawsey, Towanda, for appellees.
    Before BROSKY, WIEAND and MELINSON, JJ.
   WIEAND, Judge:

This is an appeal from an order entering summary judgment in favor of the defendants. The trial court’s order was based upon its belief that the plaintiff would be unable to produce admissible evidence that the accident occurred as alleged in her complaint. This is a close question. After careful review of the pre-trial record, however, we conclude that the plaintiff-appellant must be given añ opportunity to prove her claim at trial. Therefore, we reverse and remand for further proceedings.

A motion for summary judgment may properly be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Craddock v. Gross, 350 Pa.Super. 575, 577-578, 504 A.2d 1300, 1301 (1986); Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 38, 482 A.2d 1067, 1068-1069 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). When a motion for summary judgment is made and supported as provided in Rule 1035, the non-moving party may not rest upon the mere allegations and denials of his pleadings. To avoid summary judgment the non-moving party must set forth specific facts by way of affidavit, or as otherwise provided in [Rule 1035], demonstrating that a genuine factual issue exists. Phaff v. Gerner, 451 Pa. 146, 149, 303 A.2d 826, 829 (1973); Ressler v. Jones Motor Co., Inc., 337 Pa.Super. 602, 609, 487 A.2d 424, 428 (1985). The inquiry in deciding a motion for summary judgment “is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case or defense.” In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1987). See also: Rose v. Food Fair Stores, Inc., 437 Pa. 117, 262 A.2d 851 (1970) (summary judgment properly entered where averments of complaint could not be proved because of parol evidence rule). Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.

Catherine M. Liles sustained head injuries when she fell from the looped which she was operating on a public street in front of a residence owned and occupied by Paul and Mary Balmer. Contending that the accident had occurred when the moped had been chased by the Balmers’ dog, Liles commenced an action against the Balmers for damages. She relied upon the Dog Law of December 7, 1982, P.L. 784, No. 225, Art. Ill, § 101 et seq., 3 P.S. § 459-305, which provided in relevant part:

It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either (1) confined within the premises of the owner, or (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured, or (3) under the reasonable control of some person, or when engaged in lawful hunting or field training accompanied by an owner or handler.

A prima facie case of negligence can be established by evidence that a dog has been allowed to run without restraint in violation of the Dog Law. Miller v. Hurst, 302 Pa.Super. 235, 245, 448 A.2d 614, 618 (1982) (unexcused violation of identical language in Dog Law of 1965 held to be negligence per se).

In the instant case, however, pre-trial discovery disclosed that as a result of blunt head trauma resulting from the accident, Mrs. Liles suffered amnesia with regard to the accident. She recalls only that she was riding the moped on a Sunday afternoon and awakened in the hospital on the following day. Mrs. Balmer, who had been working in her yard at the time of the accident, testified in depositions that the dog, although unrestrained, had not left the yard. The dog, she said, had been under control and had done nothing more than bark at the moped as it passed the house.

A police accident report was prepared by Officer Jack L. Boughton, who had interviewed Mrs. Balmer and several persons at the scene of the accident, as well as Mrs. Liles after her discharge from the hospital. His report stated that “[a] dog ran out of the yard towards [Mrs. Liles].” His deposition was also taken, and during the course thereof he testified that he could not recall who had told him about the dog.

Appellant’s hospital admission report states: “Apparently, this afternoon while riding her moped according to relatives [Mrs. Liles] tried to avoid a dog____” 'J’he discharge summary states that “[apparently on May 5 in the afternoon while riding her moped, [Mrs. Liles] tried to avoid a dog which later on she stated the dog grabbed her by the leg....”

It is readily apparent that there is a dispute of fact in this case. The real issue is whether the plaintiff can produce evidence sufficient to establish prima facie that the accident occurred as she has alleged.

We agree with the trial court that plaintiff has failed to demonstrate that the police accident report and the hospital records are admissible as business records to prove the manner in which the accident occurred. To satisfy the requirements of the Uniform Business Records in Evidence Act, 42 Pa.C.S. § 6108(b), a report must: (1) have been made at or near the time of the events it purports to relate; (2) be generated as a regular practice of the business; and (8) be trustworthy as to the source of information or the method or circumstances of preparation. Ganster v. Western Pennsylvania Water Co., 349 Pa.Super. 561, 569, 504 A.2d 186, 189-190 (1985). Here, the plaintiff has not shown that the sources of the information appearing in the police and hospital records were trustworthy. See: Hreha v. Benscoter, 381 Pa.Super. 556, 565-567, 554 A.2d 525, 529-530 (1989).

We also agree with the trial court that plaintiff, contrary to her assertion, cannot prove her cause of action by showing that on prior occasions the dog was unrestrained and chased passing vehicles. Evidence of prior lack of restraint which permitted the dog to run into the street is not relevant to prove a negligent lack of control of the dog at the time of the accident. See, e.g.: Levant v. L. Wasserman Co., Inc., 445 Pa. 380, 382-383, 284 A.2d 794, 796 (1971); Roney v. Clearfield Co. Grange Ins. Co., 332 Pa. 447, 449, 3 A.2d 365, 366 (1939); Baumeister v. Baugh & Sons Co., 142 Pa.Super. 346, 353, 16 A.2d 424, 427 (1940). Appellant, moreover, is unable to show that the Balmers habitually allowed their dog to run free to chase passing vehicles. Whether evidence of habit “is admissible to show what occurred in a specific instance depends on the ‘invariable regularity’ of the usage or habit.” Baldridge v. Matthews, 378 Pa. 566, 570, 106 A.2d 809, 811 (1954); Aurand v. Universal Carloading & Distributing Co., 131 Pa.Super. 502, 507, 200 A. 285, 287 (1938); Packel and Poulin, Pennsylvania Evidence § 406, p. 186 (1987). Here there is no evidence that the dog habitually was allowed to run free to chase passing vehicles.

Still, the record does not disclose, either by affidavit or by stipulation of facts, that plaintiff will be unable to produce evidence at trial to support the averments of her complaint. Mrs. Balmer’s denial that the dog ran unrestrained from the yard does not alone resolve the factual dispute regarding the cause of plaintiffs fall. The moving party has filed no affidavits, and the record does not disclose that there are no other witnesses who can aid the plaintiff in establishing a prima facie case.

Under these circumstances, where the existence of a factual dispute is clear, the doubt will be resolved against the moving parties. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Thorsen v. Iron and Glass Bank, supra at 140, 476 A.2d at 930-931; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982). The plaintiff must be given an opportunity to prove her case at trial.

Reversed and remanded for further proceedings.


text:
    567 A.2d 693
    COMMONWEALTH of Pennsylvania v. Robert LeGRANDE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1989.
    Filed Dec. 13, 1989.

      Melvin L. Vatz, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, KELLY and CERCONE, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the Allegheny County Court of Common Pleas denying post-conviction relief to appellant, Robert LeGrande. We affirm.

In 1969, The Honorable James McLean of the Allegheny County Court of Common Pleas sentenced appellant to a seven and one half to fifteen year prison term following his convictions for attempted robbery and receiving stolen goods. This sentence was to be served concurrently with a federal sentence appellant was already serving. Appellant was paroled on the 1969 State sentence in 1976. In 1982, while on parole, appellant was charged and convicted in both State and Federal Court of crimes committed while on parole. On the new federal charges, bank robbery, appellant was sentenced to 12 years imprisonment. On the new state charges, forgery, he was sentenced to a term of 3V2-7 years imprisonment, to be served concurrently with the new federal sentence.

Upon being paroled on the 12-year federal sentence in 1987, appellant was released from the federal prison authorities to the State Board of Probation and Parole on a detainer for violation of the 1969 State sentence. Following a hearing before the Pennsylvania Board of Probation and Parole, the Board set appellant’s parole maximum date and reparole eligibility date.

On May 11, 1988, LeGrande filed a petition in the Allegheny County Court of Common Pleas for post-conviction relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Therein, he asserted that the Parole Board incorrectly calculated his reparole eligibility and parole maximum dates. The petition was dismissed by opinion and order dated January 31, 1989, on the basis that appellant had no justifiable claim. This appeal followed.

On appeal, appellant raises the following issue for our review: whether the petitioner’s constitutional rights have been violated by the improper crediting of time served to the sentence imposed on July 9, 1982, in State court on the forgery charges. He argues that in effect, the Parole Board’s determination delayed his parole eligibility on the 1982 State sentence by an extra 196 days while he serves his back time on his 1969 State sentence. He contends that if he had been credited on the back time sentence rather than on the 1982 sentence, then he would have been eligible for parole on the 1982 sentence 196 days earlier. This denial of timely parole eligibility also impacts on his parole violation maximum date.

We do not reach the merits of Appellant’s issue on appeal, because we agree with the Commonwealth’s assertion that the Court of Common Pleas lacked jurisdiction to review the Parole Board’s determinations of parole eligibility and conditions. In Commonwealth v. McDermott, 377 Pa.Super. 623, 547 A.2d 1236 (1988), we set forth the procedures to be followed in applying for parole. Therein, we stated that the Superior Court maintains exclusive jurisdiction over appeals from Court of Common Pleas parole orders, and the Commonwealth Court has exclusive jurisdiction over administrative parole orders. Id., 377 Pa.Superior Ct. at 632, 547 A.2d at 1240. Moreover, “attempts to circumvent the Commonwealth Court’s exclusive jurisdiction over administrative parole matters via Post Conviction Hearing Act and habeas corpus petitions have been rejected.” Id.; see also Commonwealth v. Perry, 386 Pa.Super. 534, 563 A.2d 511 (1989) (PCRA petition was not the proper vehicle for appellant to raise allegation that the Bureau of Corrections had erred in calculating his credit for time served); Bronson v. Commonwealth, Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980) (court noted constitutional right of appeal from administrative agency determinations, such as those of the Parole Board, and stated that the legislature intended that appeals from agency action be brought in Commonwealth Court).

Appellant is not directly appealing the Parole Board’s decision to credit his 1982 State sentence rather than his back time sentence; instead, he is appealing Judge Clarke’s denial of his PCRA petition. This issue is controlled by Commonwealth v. Fells, 513 Pa. 18, 518 A.2d 544 (1986) (per curiam). In Fells, the defendant filed a PCHA petition in the Court of Common Pleas, challenging the Parole Board’s decision to revoke his parole. In response, the Pennsylvania Supreme Court held that:

[T]hat Court lacks jurisdiction over appeals from parole revocation, 61 P.S. § 331.17, and a Post Conviction Hearing Act [42 Pa.C.S.A. §§ 9541-9551 (Purdon 1982) (repealed 1988)] proceeding is not an appropriate remedy for such matters. A parole revocation is neither a conviction nor a sentence, but an administrative proceeding. Parole questions are in the appellate jurisdiction of Commonwealth Court.

513 Pa. at 20, 518 A.2d at 544; see also Moore v. Roth, 231 Pa.Super. 464, 331 A.2d 509 (1974) (accord).

Although Appellant does not claim the actual revocation of parole, his petition involves the Parole Board’s decision on a parole issue. In light of Fells, we hold that the PCRA, like the PCHA, is not the proper avenue for Appellant to pursue his claim; the PCRA court was without jurisdiction to entertain the substantive issue raised in his petition. Accordingly, the order dismissing Appellant’s PCRA petition is affirmed.

Order affirmed.


text:
    567 A.2d 695
    MILLER BLOCK COMPANY; Miller Block Company, Inc.; James R. Walsh, Esquire, Trustee of the Bankrupt Estate of Miller Block Company, Otherwise Miller Block Company Inc.; Dean W. Miller; and the Estate of Frederick C. Miller, Deceased, v. UNITED STATES NATIONAL BANK IN JOHNSTOWN, a National Banking Association; United States National Bank in Johnstown, a Corporation, and Usbancorp, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1989.
    Filed Dec. 11, 1989.

      Dennis S. Mulvihill, Pittsburgh, for U.S. Nat. Bank, appellants.
    Norman A. Krumenacker, Jr., Johnstown, for appellees.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   ROWLEY, Judge:

This is an appeal by United States National Bank in Johnstown (Bank) from an order denying its motion to strike or open a default judgment entered in an action commenced by Miller Block Co. seeking damages for wrongful repossession by the Bank of some chattels. After thoroughly reviewing the record and the arguments of the parties, we reverse.

On August 3, 1987, the complaint was filed in the instant case. Thereafter, there were four letters exchanged by counsel regarding an extension of time within which to file a responsive pleading, the last of which was from counsel for appellees and advised counsel for the Bank that he should file the responsive pleading by October 6, 1987. On October 2, 1987, the Bank filed a removal petition in U.S. District Court to have the case transferred to federal court. On October 7, 1987, default judgment was entered in state court, but no notice of the default judgment was given to the Bank until March, 1988. On March 4, 1988, the federal court denied the Bank’s removal petition and remanded the case to the Pennsylvania courts. On March 18, 1988, the instant petition to strike/open the default judgment was filed and was subsequently denied. The instant appeal followed.

On appeal, the Bank raises numerous arguments in support of its assertion that the default judgment should have been stricken or opened. First, it claims that the Pennsylvania court was without jurisdiction to entertain the default judgment on October 7, 1987, because the federal removal petition had been filed on October 2, 1987, and under the federal removal statute, 28 U.S.C.A. § 1446(e), the filing of a removal petition bars state court jurisdiction until the case is remanded to the state court. The Bank also argues that there was no written agreement between the parties for an extension of time to file a responsive pleading and consequently, the default judgment entered without prior notice, as required by Pa.R.C.P. 237.1, should be stricken. Alternatively, the Bank argues that the judgment should be opened because its petition to open was timely filed, it presented a legitimate reason for not having filed a responsive pleading, and it has sixteen meritorious defenses. The Bank also claims that the judgment should be stricken/opened because Miller Block, which had filed a Chapter 11 bankruptcy petition, failed to obtain from the bankruptcy court the requisite permission to file the instant case. In addition, the Bank argues that the judgment should be stricken/opened because Miller Block’s complaint failed to state a cause of action against the defendants. Finally, the Bank asserts that the judgment must be set aside because service was deficient.

I. JURISDICTION

The federal removal statute provides that the filing of a petition for removal and the filing of the requisite bond, with notice to the parties and the filing of a copy of the petition in the state court, “shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d). In the present case it is undisputed that the removal petition and bond were filed on October 2, 1987, that notice was provided to the parties, and that a copy of the removal petition was timely filed in the state court. It is also undisputed that the removal petition was denied in March, 1988. Thus, the issue before us is whether or not the removal petition operated to divest the state court of jurisdiction between the time the petition was filed and the time it was denied.

Where a case is remanded to the state court upon denial of a removal petition, it is for the state court to determine the effect of the attempted removal on state court jurisdiction. See Wenrick v. Schloemann-Siemag Aktiengesellschaft, 361 Pa.Super. 137, 522 A.2d 52 (1987). The Pennsylvania Supreme Court has held that the federal removal statute

“is subject to strict construction and its provisions must be strictly complied with before the jurisdiction of a state court can be ousted: [citations omitted.] When a removal has been effected in strict compliance with the statutory requirements, then the state court’s jurisdiction ceases and any further proceeding in the state court is a nullity so long as the action is pending in the federal court.”

Crown Const. Co. v. Newfoundland American Ins. Co., 429 Pa. 119, 124, 289 A.2d 452, 455 (1968) (emphasis in original). However, where there has not been strict compliance with the removal statute, or where the removal is subsequently determined to be invalid for lack of subject matter jurisdiction, proceedings in the state court between the filing of the removal petition and its denial are valid. See Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941); Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed. 1036 (1917); Wenrick, supra. This is the logical corollary of the rule that if the removal is valid, any interim proceedings in the state court are void. Metropolitan Casualty Ins. Co., supra.

Applying these rules to the facts in the present case, we conclude that the state trial court was not divested of jurisdiction upon the filing of the removal petition because there was not strict compliance with the requirements of the removal statute, and because the federal court determined that the removal was invalid for lack of subject matter jurisdiction.

The federal removal statute requires that the removal petition be filed in federal court within thirty days after receipt by the defendant of the initial pleading setting forth the claim for relief upon which the action is predicated. However, if it is not apparent from the initial pleading that the case is removable, the case may be removed by the defendant within 30 days after receipt by the defendant of an amended motion, pleading, order, or other paper from which it can be determined that the case is removable. 28 U.S.C. § 1446(b).

It is undisputed that the removal petition in the present case was not filed within 30 days of the Bank’s receipt of the complaint. However, the Bank argues that “because of recent receipt of documents relating to the prior bankruptcy proceedings of Miller Block Company” (appellants’ brief at 17) and a 1985 lawsuit filed by Miller Block against the Bank in state court, but removed to federal court because of the bankruptcy proceedings, it was timely for it to file the removal petition on October 2, 1987. We agree with the federal court which considered the removal petition filed in the instant case that there was not a legal basis for extending the 30 day time limit of § 1446(b).

To the extent that the Bank was relying on the bankruptcy proceedings to provide the basis for removal, its argument is unfounded because the bankruptcy proceedings were terminated by court order prior to the commencement of the instant suit. The Bank also argues that the removal petition was timely filed because it had “recently” learned that the prior action by appellees against the Bank {Miller I), which had been removed to federal court because of the bankruptcy proceedings, was still active. However, the Bank has not specified what information it “recently” received which led it to believe that the first federal action was still pending, thereby serving as a basis for removal of the instant case and consolidation of it with the prior action. Nor has the Bank specified when it obtained this information. Because the Bank has not indicated when the information was obtained, it has failed to establish that the removal petition was filed within 30 days of receipt of that information. Moreover, since the Bank in the present case was the party responsible for removing Miller I to federal court, the validity of its claim that it was unaware of the status of Miller I is suspect. For these reasons, we find that the removal statute was not strictly complied with, and consequently the filing of the removal petition failed to divest the state court of jurisdiction.

In the present case, the federal court to which the Bank tried to remove the case held not only that the removal petition was filed untimely, but also that the federal court did not have subject matter jurisdiction of the case because: 1) the prior federal bankruptcy of Miller Block had been terminated prior to the commencement of the instant litigation; and 2) no federal claim under the federal banking laws and regulations appears on the face of the complaint. In addition, Miller I could not provide jurisdiction in the present case.

Long before the instant action (Miller II) was commenced, Miller I had been terminated by an order of the federal court which provided: “should further proceedings become necessary or desirable, any party may initiate it in the same manner as if this Order had not been entered.” Between the entry of the order terminating Miller I and the filing of the removal petition in Miller II, no party took any action to re-activate Miller I. Thus, at the time that the Miller II removal petition was filed, there was no active federal case with which Miller II could have been consolidated. Furthermore, the federal court noted that a complaint was never filed in Miller I, and that there was “insufficient evidence to indicate ... what those claims [in Miller /] were.” Opinion by Judge Cohill, March 14, 1988, at p. 4. Thus, even if Miller I had been active in federal court when the removal petition in Miller II was filed, it is not clear that there would have been a basis for subject matter jurisdiction in federal court with regard to Miller II.

Having concluded that the state court was not divested of jurisdiction upon the filing of the removal petition both because there was not strict compliance with the requirements of the removal statute and because the federal court subsequently denied the removal petition for lack of subject matter jurisdiction, we turn now to the Bank’s other arguments for opening or striking the judgment.

II. STRIKING THE JUDGMENT FOR NON-COMPLIANCE WITH RULE 237.1

The Bank argues that there was no written agreement by counsel for the parties to extend the time for filing a responsive pleading, and that therefore Miller’s failure to provide written notice of intention to enter the default judgment was in violation of Rule 237.1. As set forth in the trial court’s opinion, we agree that the four letters between counsel, when viewed in their totality, constitute a written agreement giving the Bank an extension to file a responsive pleading by October 6, 1987. As Rule 237.1 requires, the extension was in writing, it set a specific date, and there was agreement by the parties for the extension. Mr. Mulvihill’s letter of September 16, 1987, makes clear that the parties had already agreed to an indefinite extension, and that by the time of the parties’ meeting on September 22, 1987, he would be in a position to prepare the responsive pleading. Mr. Krumenacker’s letter of September 22, 1987, apparently written after the parties’ meeting of the same date, confirms the parties’ agreement to limit the extension for filing of the responsive pleading to October 6, 1987.

The Bank also argues that even if there was a written agreement, it was essential that in addition to the written extension agreement, the Bank also had to be given notice of the intent to take the default judgment. The express language of Rule 237.1 belies such an argument. The express purpose of the written extension exception to the Rule 237.1 notice is to obviate the need for the written notice of intent to take a default judgment.

The Bank’s argument that the parties, as distinguished from their counsel, had to receive copies of the letters evidencing the written extension agreement between counsel in order for the appellees to be excused from sending a Rule 237.1 notice is equally without merit. The explanatory note to Rule 237.1 makes clear that the written extension of time which is necessary to overcome the default notice requirement is an agreement by and between counsel. Nothing in the Rule or the explanatory note even hints that the parties themselves must be provided copies of the extension agreement letters. For the foregoing reasons, we find that Rule 237.1 was complied with and the judgment should not have been stricken.

III. REQUIREMENTS FOR OPENING DEFAULT JUDGMENT

The Bank argues that the three requirements for opening a default judgment have been met. We agree.

A petition to open a default judgment will be granted when three factors coalesce: 1) the petition has been promptly filed; 2) the default can be reasonably explained; and 3) there is a meritorious defense to the underlying claim. Versak v. Washington, 359 Pa.Super. 454, 519 A.2d 438 (1986). However, a petition to open a default judgment is an appeal to the equitable powers of a court, and the trial court’s decision will not be reversed in the absence of an abuse of discretion. Nevertheless, where the equities warrant opening a judgment, we will not hesitate to find an abuse of discretion. Id.; Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en banc).

The trial court erred as a matter of law when it denied the petition to open solely upon the finding that there was no excuse for the delay in filing the responsive pleading. In Provident, id., 300 Pa.Superior Ct. at 129-130, 446 A.2d at 263-264, the Court stated:

Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. [Citations omitted.] It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the two sides____ The question is, Can a court make an “equitable determination” of what is “reasonable under the circumstances” without considering all of the circumstances of the particular case? We think not____ [W]here some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a watertight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

(Emphasis in original.) Because the trial court in the present case never considered two of the three prongs of the tripartite test, and because it did not evaluate the equities involved in each of those three prongs, we find that the trial court’s refusal to open the default judgment was an abuse of discretion.

In the present case, the instant petition was filed in March, 1988, five months after the default judgment was entered. However, neither the Prothonotary nor the appellees provided the Bank notice that the default judgment had been entered. Moreover, although counsel for the parties discussed the case after the entry of the default judgment and prior to the filing of the petition to open, counsel for appellees never told the Bank that the default judgment had been entered. There is a factual dispute, established by the affidavits of counsel for the parties, concerning when the Bank first learned of the default judgment. Based on the evidence submitted on the petition to open, we find that the Bank did not receive notice of the default judgment until March, 1988. Consequently, the filing of the petition to open in March, 1988, was timely.

We also have no hesitation in concluding that the Bank has averred a meritorious defense to the underlying claim. In its petition to open and in its brief on appeal, the Bank has alleged 16 defenses. While not all of the defenses asserted may be meritorious, at least several of them are, such as the claim that the Bank had a valid security interest in the property, did not intimidate, harass or interfere with appellees’ business, and did not take possession of the property with force and intimidation. Although appellees argue that they have denied all the allegations of a meritorious defense, and therefore the Bank is bound by appellees’ denial of the defenses, we note that the Bank did not have the obligation to prove the merits of the defenses they raised. “The requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief.” Provident Credit Corp., supra, 300 Pa.Superior Ct. at 128, 446 A.2d at 263. Because the Bank has pleaded a defense which if proven at trial would justify relief, we conclude that the Bank has sufficiently alleged a meritorious defense.

The third prong of the test for opening a default judgment is whether there is a reasonable excuse for the default. The Bank’s sole explanation for the default is that it was not given adequate notice of the intent to take a default judgment. As discussed, above, this argument, standing alone, is insufficient to warrant striking the judgment because it was not necessary that actual notice of the intent to take a default judgment be given in the present case. However, considering all the equities disclosed in the present record, we conclude that there was a reasonable excuse for the default and that it was an abuse of the trial court’s discretion not to open the judgment.

Appellees were fully aware that the Bank was working on the case, and attempting to respond to the complaint which had been filed. As the correspondence of counsel makes clear, counsel discussed the case and twice agreed to an extension of time so that a responsive pleading could be filed by the Bank. In addition, on September 22, 1987, counsel for both parties and an insurance company representative met to discuss the case.

Not only were appellees made aware in the present case that the Bank intended to defend against the claims asserted, but the parties’ enduring litigious relationship (since at least Miller I) evidences that the default judgment entered in this case immediately upon the termination of the extension period was a misuse of the default judgment procedure. “The rules permitting the entry of default judgments were designed to prevent a dilatory defendant from unreasonably thwarting plaintiff’s efforts to establish a claim. They were not intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation.” Bildstein v. McGlinn, 320 Pa.Super. 416, 420, 467 A.2d 601, 603 (1983).

In Miller I, which was an action by appellees against the Bank, and which presumably involved claims at least similar to those in the instant case, appellees knew that the Bank had defended in that case at least to the extent of removing the case to federal court. It also is not clear why, if the bankruptcy action did not resolve the present dispute between the parties, appellees did not pursue their present claim against the Bank by reviving Miller I as the federal court had expressly provided for in its order terminating Miller I. We also find it significant that appellees did not move to dismiss Miller I and thereby permanently terminate the federal action against the Bank until after the removal petition was filed in the present case. In reviewing the equities of the case in light of the default which was entered, we also note that although removing Miller II to federal court was ultimately not successful, it was a defensive response to Miller’s complaint and the removal petition was filed prior to the running of the extension period granted to the Bank to file a responsive pleading.

Because the unique facts of the present case indicate that appellees were aware of the Bank’s efforts to respond to the complaint and defend the claims made by Miller, but nevertheless entered a default judgment immediately upon the termination of the extension period, and because this claim could have been raised in Miller I but was not, and because Miller I was left to languish in the federal court until the Bank sought to remove the present case to federal court in order to consolidate it with Miller I, and only then did appellees seek to dismiss Miller I, the trial court’s decision not to open the judgment is inconsistent with the equities in the present case. We will reverse the order denying the Bank’s petition to open the judgment and let the parties proceed to a final resolution of the case on the merits.

IV. BANK’S REMAINING ARGUMENTS

Having concluded that the equities warrant the opening of the judgment in the present case, it is not necessary for us to discuss the Bank’s remaining arguments in support of its request that the judgment be opened or stricken. However, we note in passing that the remaining claims concerning the violation of the Bankruptcy Court order, the sufficiency of the complaint to state a cause of action, and the adequacy of the service of the complaint have all been adequately discussed and correctly decided by the trial court.

Order reversed. Default judgment opened and case remanded for further proceedings. Jurisdiction is relinquished.


author: CAVANAUGH, Judge:

text:
    567 A.2d 701
    COMMONWEALTH of Pennsylvania, Appellee, v. Brian MOORE, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 24, 1989.
    Filed Dec. 11, 1989.
    Petition for Allowance of Appeal Denied April 16, 1990.

      James R. Wilson, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   CAVANAUGH, Judge:

This is an appeal from the judgment of sentence following appellant’s conviction for rape, involuntary deviate sexual intercourse, unlawful restraint, and corruption of minors,. Appellant presents three issues for our review: 1) whether appellant was denied his Sixth Amendment right to counsel at his pre-trial line up; 2) whether the' trial court erred by admitting a blue gym bag and its contents into evidence; and 3) whether trial counsel was ineffective for failing to present exculpatory evidence of appellant’s facial bumps and scars to the jury. For the reasons that follow, we affirm the judgment of sentence.

This matter involves appellant’s sexual assault of a seven-year old child. The jury returned a verdict on September 2, 1987, finding appellant guilty of all counts charged. On September 9, 1987, McDaniel, J. issued an order directing that appellant’s attorney, John Elash, file post-trial motions on behalf of appellant within ten days of the date of the order. A “boilerplate” motions for new trial and in arrest of judgment were thereafter filed on September 17, 1987. On November 19, 1987, Judge McDaniel ordered defense counsel to file a brief in support of post-trial motions. Appellant filed amended motions for new trial and in arrest of judgment on December 14, 1987 and a brief in support of all post-trial motions. Following argument, appellant’s post-trial motions were denied by the lower court on February 24, 1988. Thereafter, appellant was sentenced to ten to twenty years imprisonment on the rape conviction. On conviction of involuntary deviate sexual intercourse, appellant was sentenced to consecutive terms of ten to twenty years imprisonment. On conviction of unlawful restraint and corruption of minors, no sentence was imposed as the sentencing court deemed that these convictions merged with the convictions at counts 1 and 2 for purposes of sentencing.

Following appellant’s sentencing, on February 24, 1988, the court appointed the Office of the Public Defender to represent appellant for purposes of appeal. Subsequently, on March 1, 1988, Attorney Elash submitted a petition to withdraw as counsel.

On March 10, 1988, appellant, through counsel, filed a notice of appeal with this court.

The Commonwealth argues in its brief that this court need not address the merits of appellant’s issues because they have not been properly preserved for our review, following this court’s holding of Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983), and its progeny. In Gregory, this court held the late filing of post-trial motions under Pa.R.Crim.P. 1123(a) without prior permission from the trial court waives issues for appeal notwithstanding the trial court’s subsequently addressing the issue on the merits. However, our Supreme Court’s order in Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (filed June 10, 1988) (per curiam) seems to direct us otherwise. Our Supreme Court stated that the Superior Court had erred in its treatment of an issue as waived, where the trial court had considered an amended post-trial motion on the merits of the issue without granting permission for the defendant to file nunc pro tunc. See Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987). Given that the issue of waiver is identical to the case at hand, we therefore must construe that our Supreme Court directs us to decide such issues as the ones before us on the merits. Accordingly, we now turn to the pertinent facts.

On April 21, 1985, Tamica Wade, age seven, was sexually assaulted while enroute to a school playground with a group of friends in the City of Pittsburgh. The assailant grabbed the victim by the arm and dragged her behind a building. Tamica Wade did not know her attacker, but she and her cousin, Roneeka Smith, age nine, who was present when Tamica was grabbed, provided police with the following description and information: the actor was a light-skinned black male, approximately six feet tall, muscular build, short hair, deep voice, carrying a gray gym bag containing a large jar of Vaseline. Police had no suspects at that time.

On September 8, 1986, a police officer for the City of Pittsburgh schools attempted to apprehend a light-skinned black male, with short hair, carrying a blue gym bag. The man got away, but the bag was retained. Inside the bag, police found, among other things, an array of pornographic magazines, a jar of Vaseline and a City of Pittsburgh swimming pool identification tag. Police traced the number on the tag which led to the defendant, Brian C. Moore.

Subsequently, police arranged a line-up where the witness, Roneeka Smith, tentatively identified Brian C. Moore as the perpetrator of the sexual attack.

After the line-up, police secured a search warrant for blood, hairs and saliva from the defendant. These body specimens were sent to the Allegheny County Crime Lab for comparison testing with the victim’s clothing and rape kit. The genetic markers found in the stain with the seminal material on the victim’s blouse were the same as those found in the defendant’s blood.

Upon completion of the lab tests, appellant was arrested and charged with the instant crimes.

Initially, appellant contends that the line-up identification testimony should have been suppressed on the basis that his Sixth Amendment right to counsel was violated.

A “line-up is a critical stage at which a suspect is entitled to counsel.” United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The record before us indicates that appellant had secured private counsel, who was not present at the line-up. The record also indicates that Don Campbell, a public defender, was however, present at the line-up involving the appellant, the victim and Ms. Smith.

The lower court relied on our Supreme Court’s decisions in Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978) and Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1996) by stating “[T]he Pennsylvania Supreme Court has held that a suspect’s right to counsel at a line-up may be satisfied by the presence of public defenders who do not officially represent a suspect.” We do not read Wilcox and Shoatz so broadly.

Wilcox and Shoatz both state that a suspect’s right to counsel may be met by the presence of public defenders who do not represent [the suspect] but who take an active part in the proceedings. Commonwealth v. Wilcox, 481 Pa. at 290, 392 A.2d at 1297 (1978) (emphasis added). See also, Commonwealth v. Shoatz, 469 Pa. at 559, 366 A.2d at 1223 (1976). Thus, our Supreme Court requires something more on behalf of the public defenders than simply mere presence.

In Shoatz, two public defenders were present at the line-up. While they did not officially represent the suspect, they received copies of previous descriptions made by witnesses and consulted with the suspect. When the original group of suspects appeared, the public defenders voiced their objection and required substitutions with individuals who more closely resembled appellant. Additionally, the public defenders made notes during the line-up and were present when the victims made these identifications. Id. 469 Pa. 545, 366 A.2d 1216 (1976).

In Wilcox, the public defender took advantage of an opportunity to interview the suspect and seven fill-ins for the line-up, eliminate some of the fill-ins, and designate the position in which each participant would stand. Id. 481 Pa. at 289, 392 A.2d 1294 (1978).

In the record as before us, it is unclear that public defender Campbell, other than being physically present at the line-up, took an “active part in the proceedings.” Wilcox, supra. Attorney Campbell did not have any recollection of being at the line-up, or of Mr. Moore, the victim, or witnesses. There was no evidence introduced that Mr. Campbell talked to Mr. Moore or to the District Attorney about Mr. Moore. There is also no evidence that he took notes or voiced any objections. While it certainly may be possible that the identification made by Ms. Smith was made independently or that the line-up itself was non-prejudicial and non-suggestive, given the record before us and our Supreme Court’s directives in Shoatz and Wilcox, we are unable to state that Campbell “actively” participated enough in the line-up to secure appellant’s constitutional right to counsel.

Nonetheless, the admission of the line-up evidence into trial constitutes harmless error. The proper standard for determining the harmlessness of a federal constitutional error is whether the appellate court is convinced beyond a reasonable doubt that the error is harmless. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826-827, 17 L.Ed.2d 705, 709 (1978). An error is harmless if the appellate court finds that the error could not have contributed to the verdict. If it is reasonably possible that an error “might have contributed to the conviction”, the error may not be considered harmless. Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978), quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710. In Commonwealth v. Story, the Supreme Court of this Commonwealth provided the test for harmless error:

[T]he uncontradicted evidence of guilt must be so overwhelming and the prejudicial effect of the improperly-admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.

Story, 476 Pa. at 417, 383 A.2d at 168.

The record as submitted clearly supports the jury verdict of guilty. Appellant’s appearance meets the description provided by the victim and witnesses to police immediately following the attack on the victim. Roneeka Smith identified appellant as the perpetrator of the crimes involved. Roneeka Smith further related at trial an incident in which the perpetrator approached her between the time of the rape and the trial. Police officers recovered a gym bag from appellant which was similar in appearance to and containing items similar to the ones carried by appellant when he attacked the victim. The genetic matters found in the stain with the seminal material on the blouse of the victim has the same genetic markers as the genetic markers found in the blood of the appellant. Moreover, the genetic markers of appellant’s blood is found in only one out of 3,600 people.

The victim did not identify appellant at trial, and stated that she was uncertain of the defendant’s identification at the lineup. This is not a case where the victim’s line-up identification can be said to have bolstered an in-court identification. However, Roneeka Smith positively identified the appellant at trial, at the lineup, and as the person who approached her at a bus stop a few months after the alleged offense.

Given the above facts, we are convinced beyond a reasonable doubt that the admission of line-up testimony did not contribute to the verdict. The uncontradicted and properly admitted evidence of guilt is overwhelming and the prejudicial effect of the error is so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973); accord Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

The appellant also avers that the trial court erred by permitting the Commonwealth to introduce into evidence a blue gym bag which contained, among other items, a large jar of Vaseline and pornographic magazines. This evidence was introduced despite the fact that on April 29, 1985, the attacker had a grey gym bag with similar items and not the blue bag in question.

The evidence at trial showed that the perpetrator had in his possession, at the time of the crime a grey gym bag and a large jar of Vaseline. A pornographic magazine was found by the victim at the scene of the assault. When police attempted to apprehend the appellant in September, 1986, they retained, from his possession, a blue gym bag in which there were found pornographic magazines and a jar of Vaseline.

“Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when to some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). Furthermore, the admission or exclusion of evidence is a matter committed to the sound discretion of the trial judge. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982).

It is clear that evidence under consideration is relevant. The fact that the attacker possessed the same type of items as the appellant clearly tended to establish the fact in issue, namely the identity of the perpetrator.

However, even relevant evidence “is inadmissible if the trial court, in its discretion, determines that its prejudicial impact outweighs its probative value.” Common wealth v. Costal, 351 Pa.Super. 200, 505 A.2d 337 (1986). The appellant contends that the evidence in question, specifically the pornographic magazines were only introduced to inflame the passions of the jury, and its introduction thereby prejudiced the jury.

It would be difficult to conceive of a trial at which the prosecution’s evidence was not prejudicial to the defendant. See Carter v. Hewitt, 617 F.2d 961 (3rd Cir.1980). “The difficulty arises when the evidence is so prejudicial that it sweeps the jury beyond a rational consideration of guilt or innocence of the crime on trial.” Commonwealth v. Costal, 351 Pa.Super. 200, 505 A.2d 337, 338 (1986), Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191 n. 11, quoting McCormick, J., Evidence Sec. 185 at 438-440 (2d Ed.1972). Any conceivable prejudice or inflamatory effect that could be caused by the introduction of the magazines was mitigated by the lower court by not showing the magazines to the jury or allowing them to be sent with the jury during deliberations. Therefore, the evidence of the pornographic magazines was not of the type described above, and was properly admitted.

Furthermore, we agree with the lower court’s analysis in following our Supreme Court’s holding in Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67 (1975), that any arguments appellant may have concerning the remoteness of the gym bag and its contents or the lack of possible identification was not of consequence. These factors affect the weight of the evidence, not its admissibility. See Davenport, supra, Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984).

Finally, appellant raises the issue of whether appellant’s trial counsel was ineffective for failing to make a timely request seeking to allow the jury to view the face of the appellant.

Our Supreme Court in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) established the standards by which our courts review claims of ineffective assistance of counsel:

Our cases clearly indicate that ineffectiveness claims are to be measured by two components. First, counsel’s performance is evaluated in light of its reasonable if it is determined that the underlying claim is of arguable merit ... Second, we have required that the defendant demonstrate how the ineffectiveness prejudices them.

Commonwealth v. Pierce, 515 Pa. at 158-159, 527 A.2d at 975 (1987) (citations omitted).

As the lower court noted, throughout the two-day trial, the appellant sat not more than fifteen feet from the jury. Moreover, the jury had full vision of the appellant’s face during the two days of the trial, thereby having ample and adequate opportunity to observe the scarring on the appellant’s face. Furthermore, the uncontradicted, properly admitted evidence of appellant’s guilt was overwhelming, and we can find no reasonable probability that had appellant been placed directly in front of the jury box, the result would have been different. Commonwealth v. Pierce, supra. Since the prejudice question is resolvable, we need not even consider whether counsel’s decision to request that appellant be taken before the jury box after the jury had been charged had a reasonable basis, and the ineffectiveness claim can be dismissed.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3121(1).

      . 18 Pa.C.S.A. § 3123(5).

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 6301.

      . The Order in Sheaff, 518 Pa. 655, 544 A.2d 1342 states in its entirety: [T]he Petition for Allowance of Appeal is Granted. Superior Court erred in treating the issue of sufficiency of evidence as waived. This court has reviewed the record, considered the issue, and finds it without merit. Judgment of sentence affirmed.

      . Opinion of McDaniel, J., January 9, 1989, p. 4.


text:
    567 A.2d 707
    COMMONWEALTH of Pennsylvania v. David SAUTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1989.
    Filed Dec. 15, 1989.
    Petition for Allowance of Appeal Denied April 30, 1990.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before BROSKY, WIEAND and MELINSON, JJ.
   WIEAND, Judge:

David Sauter entered pleas of guilty to robbery and aggravated assault. He was sentenced to serve consecutive terms of imprisonment of not less than ten years nor more than twenty years for robbery and not less than five years nor more than ten years for aggravated assault. In response to a motion to modify the sentence, however, the trial court ordered the sentences of imprisonment to be served concurrently. On direct appeal, Sauter is represented by new counsel who argues that the guilty plea colloquy was defective, that guilty plea counsel was ineffective for failing to seek a withdrawal of the guilty plea, and that the sentence was excessive. We find no merit in these arguments and affirm the judgment of sentence.

Appellant contends that the seven page “Explanation of Defendant’s Rights” form, containing questions which he read, answered and signed, was inadequate to satisfy the “on the record” colloquy requirement for a valid plea of guilty. This “explanation of rights” was a thorough review of the effect of a plea of guilty and a statement of the rights being surrendered by the entry of a plea of guilty. When appellant appeared in court to tender his guilty plea, the trial judge advised him of the elements of the offenses to which he was entering pleas of guilty and the maximum sentences which could be imposed therefor. The Commonwealth also reviewed the facts of the case, and defendant, through his counsel, stated that there were no corrections or additions. The trial court also inquired regarding appellant’s ability to read and write English and then addressed to him a series of questions and received answers as follows:

THE COURT: Mr. Sauter, why are you pleading guilty?
MR. SAUTER: Because I am guilty.
THE COURT: Have there been any threats or promises to influence your plea?
MR. SAUTER: No.
THE COURT: Are you presently on probation or parol [sic]?
MR. SAUTER: No.
THE COURT: You filled out the guilty plea explanation of defendant’s rights. Did you read and answer every question?
MR. SAUTER: Yes.
THE COURT: Did you do so while your attorney was available.
MR. SAUTER: Yes.
THE COURT: Are you satisfied with the services of Mr. Foglia?
MR. SAUTER: Yes.
THE COURT: I find that you understand the proceedings today; that your plea is knowingly, intelligently and voluntarily made.

Pa.R.Crim.P. 319 directs that a guilty plea shall not be accepted by a trial court unless there has been a determination, after inquiry directed to the defendant, that the plea is being tendered voluntarily and understandingly. The comment to the Rule suggests a series of questions to be asked of the defendant; and inquiry into these areas has been held to be mandatory. See: Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977) and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976). The comment states further that “nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings.” However, such a “written colloquy would have to be supplemented by some on-the-record oral examination.” See also: Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987).

We have examined the written statement of appellant’s rights and have concluded that it covered the areas of inquiry required by Pa.R.Crim.P. 319, as well as many other concerns. When supplemented by the in-court colloquy, it suggests most strongly that appellant's guilty plea was entered knowingly and intelligently. Such a colloquy is not defective.

Appellant also contends that his guilty plea counsel was constitutionally ineffective for failing to request a more extensive oral colloquy and for failing to seek to withdraw his client’s guilty plea. There is no arguable merit in this contention. The proceedings were sufficient to enable the trial court to determine that the guilty plea was being entered voluntarily and knowingly, and thus there was no basis on which counsel could properly challenge appellant’s plea or move to withdraw the same. For the same reason, counsel was not ineffective for recommending withdrawal of the pro se motion to withdraw the plea which appellant filed after he had been sentenced.

Appellant also contends that the sentence imposed by the trial court was excessive and failed to consider mitigating factors. He alleges that a substantial issue exists regarding the appropriateness of the sentence because the court focused on the seriousness of the offense and failed to consider his youth, the fact that he had entered a plea of guilty, his efforts to improve himself, his problem with alcohol, tragedies of his childhood and the absence of prior violence. On the other hand, it is clear that the sentencing court had the benefit of a pre-sentence investigation which it considered carefully. See: Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Therefore, we do not perceive a substantial issue regarding the discretionary aspects of the sentence imposed by the trial court and will not review the same further.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701(a)(l)(i) or (ii).

      . 18 Pa.C.S. § 2702(a)(1).

      . Appellant and an accomplice were accused of entering the home of an 86 year old woman, where they repeatedly kicked and struck her while demanding money. As a result of the incident the female victim sustained injuries for which she was hospitalized for eight days.