text:
    476 A.2d 1334
    PROVIDENCE WASHINGTON INSURANCE COMPANY v. Ruth ROSATO, Administratrix of the Estate of Marissa Rosato and Michael J. Coyle. Appeal of Ruth ROSATO, Administratrix of the Estate of Marissa Rosato.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed May 11, 1984.
    See also, 328 Pa.Super. 278, 476 A.2d 1328.

      Edward F. Silva, Philadelphia, for appellant.
    Ed McCandless, Philadelphia, for appellee.

      Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

The question presented on appeal is whether a passenger in a vehicle insured under a “garage fleet policy” can stack or cumulate uninsured motorist coverages where (1) the policy limits liability to single coverage, (2) she is not a named insured or premium payor under the policy, and (3) she is an insured only because she was occupying the insured vehicle. We hold that she cannot stack uninsured motorist coverages and, accordingly, affirm the order of the court below.

On October 14, 1979, at approximately 1:30 a.m., Michael Coyle was operating a motorcycle on Conestoga Road in Radnor, Pennsylvania, when he was struck from behind by a negligently operated uninsured vehicle. Both Coyle and his passenger, Marissa Rosato, sustained injuries. Rosato’s injuries resulted in her death approximately 18 hours after the accident. Coyle’s motorcycle was owned by his employer, Wright Enterprises, Inc. d/'b/a Devon Honda (Devon Honda), a motorcycle dealer. Coyle had borrowed the motorcycle for personal purposes, unrelated to Devon Honda’s business. The motorcycle bore dealer tags registered to Devon Honda and was one of ten motorcycles insured by Devon Honda under a “garage fleet policy” with appellee, Providence Washington Insurance Company. The policy provided uninsured motorist coverage on each motorcycle of $15,000 for each person and $30,000 for each accident. Subsequent to an arbitration hearing held on October 14, 1981, the arbitrators, on October 21, determined that cumulative coverages existed in the amount of $150,-000/300,000 (multiplying the ten dealership tags by the minimum financial responsibility limits) and awarded $32,-500 to Coyle and $150,000 to appellant, Ruth Rosato, as administratrix of the estate of Marissa Rosato. On November 12, 1981, appellee petitioned to modify the arbitrators’ award, alleging that the arbitrators committed an error of law in permitting cumulative coverage. On May 20, 1982, the lower court modified the arbitration award by reducing Rosato’s award to $15,000, the minimum coverage. This appeal followed.

The Pennsylvania Uninsured Motorist Act provides, in relevant part:

No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of “The Vehicle Code”, act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom,

40 P.S. § 2000(a) (footnote omitted) (emphasis added). The legislative intent behind this act was noted by our Supreme Court in Harleysville Mutual Casualty Company v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968):

The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist.
In Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967), we quoted with approval the language of Katz v. American Motorists Ins. Co. [244 Cal.App.2d 886], 53 Cal.Rptr. 669 (1966), that such statutes are “designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.” We there declared for liberal construction of the statute in order to achieve the legislative intent, and we here adhere to that declaration.

Id., 429 Pa. at 395, 241 A.2d at 115. Accord, Novoseller v. Royal Globe Insurance Company, 317 Pa.Superior Ct. 217, 221-222, 463 A.2d 1163, 1165 (1983). The Uninsured Motorist Act allegedly ensures that innocent victims recover the damages they would have received had the uninsured tortfeasor maintained liability insurance. Bankes v. State Farm Mutual Automobile Insurance Company, 216 Pa.Superior Ct. 162, 168, 264 A.2d 197, 199 (1970). “The Act does not place any statutory maximum on the amount of coverage any individual insured can obtain, only the minimum amount of coverage each insurance policy must provide.” Antanovich v. Allstate Insurance Company, 320 Pa.Superior Ct. 322, 340, 467 A.2d 345, 354 (1983).

Because of this legislative intent and the absence of any statutory maximum, our courts have conclusively determined that an insured may stack uninsured motorist policies. In Harleysville Mutual Casualty Company v. Blumling, supra, 429 Pa. at 395-96, 241 A.2d at 115, our Supreme Court stated that “where the actual loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.” See also Novoseller v. Royal Globe Insurance Company, supra (stacking of insurance coverages is permissible in Pennsylvania). Stacking allows the injured insured to obtain the full benefit of all coverage paid for in premiums. Parker v. State Farm Insurance Company, 543 F.Supp. 806 (E.D.Pa.1982). Attempts by-insurance companies to preclude stacking through exclusionary or limitation of liability clauses have been expressly rejected by our courts. See, e.g., State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978) (exclusionary clause prohibiting an insured’s recovery if the injury was sustained in a vehicle owned by a member of his household held invalid); Harleysville Mutual Casualty Company v. Blumling, supra, 429 Pa. at 396, 241 A.2d at 115 (automobile insurer could not avoid its statutorily imposed liability by unilaterally inserting a liability-limiting clause). In Sones v. Aetna Casualty and Surety Company, 270 Pa.Superior Ct. 330, 334, 411 A.2d 552, 554 (1979), we stated:

[A] liability-limiting provision in a policy, the effect of which is to prohibit and preclude an injured person who is an insured under the policy from pyramiding or cumulating the separate uninsured motorist coverages available to him is in derogation of and repugnant to the uninsured Motorist Act which requires uninsured motorist coverage in all policies of insurance with respect to each motor vehicle insured.

(Emphasis added). See also Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 337, 473 A.2d 1005, 1010 (1984). Here, Clause III of appellee’s insurance policy limits appellee’s liability to single coverage:

Regardless of the number of (1) persons or organizations who are insureds under this policy, (2) persons who sustain bodily injury, (3) claims made or suits brought on account of bodily injury, or (4) highway vehicles to which this policy applies.
(a) The limit of liability stated in the schedule as applicable to “each person” is the limit of the company’s liability for all damages because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting “each person”, the limit of liability stated in the schedule as applicable to “each accident” is the total limit of the company’s liability for all damages because of bodily injury sustained by two or more persons as the result of any one accident.

This clause is clearly invalid and cannot be enforced to preclude stacking in the instant case.

The next question presented is whether stacking should be precluded because appellant’s decedent was an unnamed insured who paid none of the premiums under the policy at issue. In State Farm Mutual Automobile Insurance Company v. Williams, supra, our Supreme Court allowed the named insured, who had already received the maximum under his wife’s uninsured motorist policy, to recover the remainder of his actual loss under his own uninsured motorist policy. The Court thereby rejected an exclusionary clause which prohibited all recovery by the insured if the insured was occupying a motor vehicle owned by a resident of his household at the time of the accident. In holding the clause invalid, the Court concluded:

The insured may recover uninsured motorist benefits:

1. If the insured party paid the premiums of the policy and was the named insured; and
2. If the recovery under the second uninsured motorist coverage was limited to actual damages; and
3. If the recovery is not limited by the statutory exclusions.

Id. 481 Pa. at 143, 392 A.2d at 287. Following Williams, the courts debated whether the first criterion noted above was to be strictly adhered to or whether an unnamed insured under the policy who did not pay the premiums could nevertheless cumulate uninsured motorist coverages. In Sones v. Aetna Casualty and Surety Company, supra, we allowed a passenger injured in her husband’s automobile to stack uninsured motorist coverages because she was an insured under her husband’s policy, even though her husband paid the premiums for his three covered automobiles. We stated:

The Supreme Court [in Williams ] ruled that the uninsured motorist statute mandates a floor of minimum protection to be afforded to the owner or operator of a motor vehicle within the state and that while the legislature has permitted enhancement of that minimum, the statute does not permit a diminution of that protection.

270 Pa.Superior Ct. at 333-34, 411 A.2d at 553-54 (emphasis in original). In Michael v. The Aetna Casualty and Surety Company, 6 D. & C.3d 691 (Philadelphia Co.1978), aff'd, 272 Pa.Superior Ct. 622, 422 A.2d 699 (1979), the insured was driving a city-owned vehicle in his capacity as a police officer when he was struck by an uninsured vehicle. The court allowed the injured officer to stack uninsured motorist benefits for his two personally-owned automobiles, stating: “The legislative intent in enacting the uninsured motorists law ... requires a liberal construction of the statute, and a pronounced propensity ... to find coverage unless equally strong legal or equitable considerations to the contrary are present.” Id. at 694, quoting Sands v. Granite Mutual Insurance Company, 232 Pa.Superior Ct. 70, 80, 331 A.2d 711, 716 (1974). In Marchese v. Aetna Casualty and Surety Company, 284 Pa.Superior Ct. 579, 426 A.2d 646 (1981), an automobile dealer’s employee was driving a dealerowned vehicle with license plates assigned to him by the dealer when he was injured in a collision with an uninsured vehicle. The “garage” policy of insurance issued to the dealer covered 20 “dealers plates” owned by the dealer who paid 20 premiums for uninsured motorist coverages. In allowing the employee to stack uninsured motorist coverage for the 20 plates even though he did not pay the premiums and was not a named insured, this Court found that: (1) it was definitely provided in the policy that the employee was one of the persons to whom a dealer’s plate would be issued for use on a vehicle owned by his employer; and (2) in light of Sones and Michael, payment of the premium by the injured party was not a “condition precedent to recovery in all cases.” Id., 284 Pa.Superior Ct. at 585, 426 A.2d at 649. Recently, our Supreme Court conclusively decided the issue in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), aff'g in part and rev’g in part 312 Pa.Super. 549, 459 A.2d 358 (1983). In Utica, the Court stated that the Williams criteria were “not absolute conditions precedent to recovery in all cases” but “merely defined one group of persons who were entitled to stack coverages”. 504 Pa. at 328, 340, 473 A.2d at 1005, 1011. Therefore, the instant appellant cannot be precluded from stacking solely on the basis that appellant’s decedent was not a named or designated insured nor a premium-payor.

That does not end the matter, however, because the Utica Court did not hold that all insureds could stack coverages. In Utica, the decedent was operating his employer’s automobile when he was involved in a minor traffic accident with another vehicle. A police officer arrived at the scene and the decedent was standing beside the police car when he was struck and killed by the uninsured vehicle. Under the Utica policy which covered 15 of the employer’s vehicles, the decedent could be considered an insured only if he was “occupying” the insured vehicle. Although the Court found that the decedent was “occupying” the insured vehicle, it held that “a person who is insured only because he is an occupant in a vehicle insured under a fleet policy is [not ] entitled to stack coverages.” Id., 504 Pa. at 337-338, 473 A.2d at 1010 (emphasis added). The Utica Court distinguished between the three classes of insureds contained in most uninsured motorist policies: (1) “class one” includes “the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either”; (2) “class two” includes “any other person while occupying an insured highway vehicle”; and (3) “class three” includes “any person with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under [(1)] or [(2)] above.” Id., 504 Pa. at 338, 473 A.2d at 1010. In holding that “class two” insureds could not stack, the Court reasoned that:

Since the decedent here asserted nothing more than “class two” coverage, his entitlement arose from his temporary status as an occupant, rather than from his being a specifically intended beneficiary of the insurance policy. Therefore there is no basis upon which to allow his estate to stack the coverages applicable to the other vehicles, and his recovery under the Utica policy is limited to the 15,000 dollar coverage applicable to the vehicle he was operating.

Id., 504 Pa. at 339, 473 A.2d at 1011 (footnote omitted). In the instant case, Clause II of appellee’s policy provides that persons insured under the policy would include:

(a) the named insured and any designated insured and, while residents of the same household, the spouses and relatives of either;
(b) any other person while occupying an insured highway vehicle; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.

(Emphasis added). Clause V of the policy defines the term “occupying” as “in or upon or entering into or alighting from” and also defines the term “insured highway vehicle” as any automobile owned by the named insured, and any highway vehicle to which are attached dealer’s license plates issued to the named insured. Here, the decedent was riding on the insured motorcycle when she was struck and killed by the uninsured vehicle. Clearly then, the instant decedent would be considered a “class two” insured by the Utica Court; therefore, appellant is precluded from stacking uninsured motorist coverages on the ten motorcycles insured under the Providence Washington fleet policy.

Accordingly, we affirm the lower court’s order reducing Rosato’s award to $15,000, the minimum coverage.

Affirmed.

      . The award of $32,500 to Coyle was confirmed by the lower court and is not in dispute on appeal.
      Because the question of cumulative coverages is a question of law, the lower court had the power to hear the petition to modify the arbitration award and the issue is properly before us on appeal. See Novoseller v. Royal Globe Insurance Company, 317 Pa.Superior Ct. 217, 221, 463 A.2d 1163, 1165 (1983); Davis v. Government Employees Insurance Company, 296 Pa.Superior Ct. 198, 202, 442 A.2d 727, 729 (1982).

      . The Utica Court “expressly reserve[d] for another day the questions of whether a ‘class one’ insured may stack coverages under a fleet policy, and whether the owner and/or officers of a corporation are 'class one’ insureds under a policy issued in the name of a corporation.” 504 Pa. at 328, 338 n. 4, 473 A.2d at 1005, 1010 n. 4.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    476 A.2d 1340
    Joseph CISCO, Appellant, v. UNITED PARCEL SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1983.
    Filed May 11, 1984.

      Joseph A. Malley, III, Media, for appellant.
    Philip J. Katauskas, Philadelphia, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This appeal is taken from an order sustaining preliminary objections in the nature of a demurrer to appellant Joseph Cisco’s complaint in trespass. The trial court held that the criminal charges which were filed against Cisco provided his employer, United Parcel Service, appellee herein, with a plausible and legitimate reason for terminating his employment, and that no public policy was violated thereby. It, therefore, found that no cause of action was possible and dismissed the complaint. We affirm.

The averments of the complaint disclose that appellant, Joseph Cisco, was employed by United Parcel Service, hereinafter U.P.S., from October of 1973 until May of 1980. On a particular day in May, Cisco made a routine delivery of parcels to the residence of Dr. and Mrs. Chaplan. As a result of that delivery, appellant argues that malicious and unfounded charges of theft and trespass were brought against him, from which he was subsequently acquitted by a jury. However, prior to acquittal and while the charges were pending, representatives of U.P.S. questioned him continually about them and informed him that if he did not resign, that he would be terminated. Cisco then resigned in June 1980. After his acquittal, Cisco made repeated unsuccessful requests to be reinstated. He then filed this action in trespass and requested lost wages in the amount of Twenty-five Thousand Dollars and damages for emotional trauma, and, in the alternative, reinstatement to his former position.

These facts and all reasonable inferences therefrom have been admitted by appellee’s demurrer. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974). In determining whether a complaint is sufficient to state a cause of action, we are guided by the rule that a demurrer may be sustained only in clear cases, and all doubts must be resolved in favor of the sufficiency of the complaint. Martin v. Little, Brown and Co., 304 Pa.Super. 424, 428-9, 450 A.2d 984, 987 (1981).

Appellant was an at-will employee of U.P.S. “In general, there is no non-statutory cause of action for an employer’s termination of an at-will employment relationship.” Reuth er v. Fowler and Williams, Inc., 255 Pa.Super. 28, 31, 386 A.2d 119, 120 (1978). However, with the case of Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), our Supreme Court established the principle that an employee at-will may have a cause of action against the employer for wrongful discharge when the discharge threatens public policy. In Geary, the Court held that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at-will has no right of action against his employer for wrongful discharge. While in that case the employee’s actions in vigorously expressing his reservations about a certain product of his employer were termed “praiseworthy” by the Court, it inferred that he had become a nuisance which disrupted his employer’s normal operational procedures. Therefore, the Court affirmed the order of the trial court sustaining U.S. Steel’s demurrer. The Court did add:

It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The motion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited, (footnote omitted) Geary, 456 Pa. at 184, 319 A.2d at 180.

These words have been the authority for the public policy exception to at-will employment relationships in Geary’s progeny.

In Reuther v. Fowler and Williams, Inc., supra, we reversed the trial court’s grant of a non-suit in an action in trespass by a former employee against his employer for having terminated him for serving on jury duty. The trial court held that the employee did indeed have a cause of action, but granted the non-suit on the ground that appellant’s evidence disclosed that his employer fired him, not because of the jury duty, but because he had been discourteous and inconsiderate in failing to notify his employer that he would definitely be away from his post for one week. We reversed because a jury could have drawn two contradictory inferences from appellant’s testimony: one, that the employer was so inconvenienced by the employee’s inconsiderate behavior that discharge was appropriate; or two, that the employer was irked by the employee’s declining to be excused from jury duty that he fired him. Under the first inference, the employee would probably not recover damages; but, the second inference, because it impinged on the important public policy of promoting the citizen’s responsibility to serve on juries, could have resulted in recovery for the employee. Thus, the exception of Geary was evident.

In Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), the appeal was from the trial court’s order dismissing an employee’s complaint for failure to state a cause of action, as in the instant case. Hunter had been convicted of assault arising from a domestic dispute thirteen years prior to his application for employment as a bus driver with a public employer. He had been unconditionally pardoned by the governor prior to his application. Hunter argued that Article I, Section 1 of the Pennsylvania Constitution guaranteed him the right to be fairly considered for public employment. We agreed, distinguishing Geary because that case did not involve constitutional rights, a public employer, or a claim involving a refusal to hire a job applicant. In addition, we found a deeply ingrained public policy of the State to avoid unwarranted stigmatization of former offenders. Thus, because a cause of action was possible in Hunter, we reversed, finding that the trial court improperly sustained the employer’s demurrer by considering facts not averred in the complaint. We took exception to the Court’s conclusion that an assault conviction supports a refusal to hire because a bus driver is constantly dealing with the public under stressful situations. We found it was important for the trial court to know why Hunter was pardoned in order to connect the assault with the prospective employment.

“We hold ... that when a public employer denies employment to an individual because of his criminal record, the employer’s denial of employment must be reasonably related to the furtherance of a legitimate public objective.” Id., 277 Pa.Superior Ct. at 17, 419 A.2d at 638.

Because the employer’s reasonableness was not apparent on the face of the complaint, its demurrer was erroneously sustained.

Then, in Yaindl v. Ingersoll-Rand Co. Standard Pump Aldrich Division, 281 Pa.Super. 560, 422 A.2d 611 (1980), we observed that “the precise extent to which the employer’s interest in running his business is limited by considerations of public policy cannot be stated but must be worked out on a case-by-case basis,” Id., 281 Pa.Superior Ct. at 572, 422 A.2d at 617. The trial court granted summary judgment to both counts in trespass, wrongful discharge and interference with prospective employment. Our court affirmed the dismissal of the wrongful discharge claim as no clear public policy was threatened by appellant’s discharge. We also considered the employer’s review by a high company official of the discharge as weighing heavily in the employer’s favor.

What we may glean from Geary, Reuther, Hunter, and Yaindl is the necessity for a thorough review of the circumstances surrounding a discharge of an at-will employee. First, we must discern whether any public policy is threatened thereby; second, even when an important public policy is involved, an employer may discharge an employee if he has separate, plausible and legitimate reasons for doing so.

Initially, we must determine whether the discharge and subsequent refusal to rehire an employee charged with theft and trespass but who was later acquitted, violated any public policy. The instant complaint characterizes the charges against appellant as malicious and unfounded. Ap-pellee accepts this description by its demurrer. Moreover, support for it is drawn from appellant’s subsequent acquittal.

A clear statement of what public policy actually consists is hindered by its varying manifestations. As the Supreme Court of New Jersey observed:

The sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision. In certain instances, a professional code of ethics may contain an expression of public policy____ Absent legislation, the judiciary must define the cause of action in case-by-case determinations.
Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980), in Pierce, Mann, Roberts, “Employee Termination at-Will: A Principled Approach,” 28 Villanova L.R. 1, 26 (1982).

Appellant urges that a criminal defendant’s right to a presumption of innocence is the public policy involved in his case. He argues that the guarantee of this right carries little or no impact if an individual may be arbitrarily discharged from his source of livelihood merely because of an accusation. Section (b) of the Criminal History Record Information Act, 18 Pa.C.S.A. § 9125, lends support to his contention.

(b) Use of information. — Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.

The 1982 amendment to this section substituted “Felony” for “Arrests.” While a perusal of legislative history of this change proved unhelpful, it may reasonably be surmised that any experience with the criminal justice system which falls short of a conviction is not a fair consideration by an employer considering hiring an individual with that experience. Indeed, even convictions for felonies and misdemeanors may be considered only insofar as they relate to an applicant’s suitability for the job. We may assume that this principle is an expression of public policy.

However, this case can be distinguished from the situations protected by the above-cited Act. U.P.S. was not examining a cold rap sheet of a job applicant. This case involves an arrest arising from appellant’s performance of his extant duties, not an incident arising thirteen years earlier on an unconnected matter, as in Hunter, supra. It is not a hiring situation, by a public employer as in Hunter, but a discharge and refusal to rehire by a private company. This situation, in addition, gives rise to an inference that the reputation and business activity of U.P.S. were jeopardized by a mere arrest, even one which ultimately resulted in an acquittal. While the full panoply of rights incident to a criminal defendant were entitlements of appellant in his trial experience, including the right to be presumed innocent until proven guilty, these rights which are ensured by both the United States and Pennsylvania Constitutions are not necessarily meant to, nor can they, be superimposed into an accused’s remaining life experiences. Thus, marriages crumble when one is adjudged guilty without ever being considered innocent and jobs are lost when the employer, for a legitimate business reason, cannot risk even someone under suspicion of having committed theft and trespass when the nature of its business is to enter onto the premises of others and to deliver parcels which belong to them. Thus, our survey of the applicable case law constrains us to affirm the order of the lower court which dismissed his complaint. We have concluded that a plausible and legitimate reason for appellant’s discharge existed in that his employer was protecting its reputation, by discharging an employee who was accused of theft and trespass in connection with his employment, even though a jury ultimately acquitted him. Moreover, we agree with the lower court that this case did not violate any public policy of Pennsylvania.

Order of the lower court affirmed.

      . A number of states have judicially recognized this public policy exception to the at-will doctrine: California, Connecticut, Idaho, Illinois, Indiana, Kentucky, Michigan, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, West Virginia and Wisconsin. Michigan and South Dakota have passed legislation that partially constrains the at-will doctrine. For a description of recent developments in this doctrine, see Note, "Public Policy Limitations to the Employment at-Will Doctrine since Geary v. United States Steel Corporation," 44 U.Pitt.L.Rev. 1115 (1983).

      . “It might have been granted because appellant was innocent but erroneously convicted, or because mitigating circumstances existed at the time of the offense, or because appellant’s rehabilitation subsequent to the offense warranted a pardon.” Hunter, 277 Pa.Superior Ct. at 15, 419 A.2d at 637.

      . Our court considered the circumstances of appellant's discharge by weighing several factors, balancing against appellant’s interest in making a living, his employer’s interest in running its business, its motive in discharging appellant and its manner of effecting the discharge, and any social interests or public policies that may be implicated in the discharge.

      . United States District Courts and the Third Circuit Court of Appeal have had myriad opportunities to interpret this development of Pennsylvania law. Specifically, see Molush v. Orkin Exterminating Co., Inc. 547 F.Supp. 54 (E.D.Pa.1982) (former employee who alleged that he underwent a polygraph examination, pleaded valid cause of action for tortious discharge under public policy embodied in Pennsylvania anti-polygraph statute, 18 Pa.C.S.A. § 7321.) And see Perks v. Firestone Tire and Rubber Co., 611 F.2d 1363 (3d Cir.1979).


author: WATKINS, Judge:

text:
    476 A.2d 1344
    COMMONWEALTH of Pennsylvania, Appellant, v. Albert NICHOLS.
    Superior Court of Pennsylvania.
    Argued June 17, 1983.
    Filed May 25, 1984.

      Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Com., appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal by the Commonwealth from a post-verdict discharge of the defendant under Rule 1100 of Pa.Rules of Criminal Procedure after conviction of criminal trespass and conspiracy.

The pertinent procedure is as follows:

The defendant was charged with burglary, criminal trespass and conspiracy. The run date was December 15, 1980. The first preliminary hearing was continued on June 23, 1980 because of the illness of the arresting officer; at the next listing the co-defendant’s attorney was unavailable. The hearing was finally held on July 16, 1980 when he was held for court. He was arraigned on August 5, 1980.

At the first trial listing, the co-defendant’s attorney failed to appear. At the second trial listing, the Commonwealth could not proceed because of the illness of the complainant. On December 4, 1980, the Commonwealth was ready to proceed to trial, but the case was marked “Ready — Not reached.” It was then listed for trial on February 9, 1981, the earliest possible date. The Commonwealth then filed a timely extension petition. The Honorable Edward Rosen-wald heard the petition on January 27, 1980 and after a lengthy hearing, extended the time for trial to February 10, 1981 finding that the Commonwealth used due diligence to bring the case to trial. On February 9, 1981, the Commonwealth was again prepared for trial, but again the case was marked “Ready — Not Reached”. A further continuance was granted to March 5, 1981.

The Commonwealth filed its second timely extension petition which was heard on March 2, 1981 by the Honorable Maurice Sporkin and after a lengthy hearing, he granted the extension until March 5, 1981 finding that the Commonwealth had exercised due diligence, but he also ordered that the defendant be discharged if the Commonwealth did not meet the new due date.

On March 5, 1981, the Commonwealth proceeded to trial before the Honorable Leon Katz. Judge Katz deferred adjudication to determine whether there was sufficient evidence of non-permission since the Commonwealth was unable to call the complainant as a witness.

On March 18, 1981, Judge Katz acquitted the defendant of burglary, but found him guilty of criminal trespass and conspiracy.

On November 6, 1981, Judge Katz granted defendant’s post-trial motions and discharged the defendant, holding that Rule 1100 was violated, thus reversing Judge Rosen-wald and Judge Sporkin who granted the extensions, although he seemed to rule only on the first extension.

Judge Katz held that a Rule 1100 extension must be invalidated if the Commonwealth did not present evidence of the proceedings from the beginning of the prosecution. This requirement is contrary to the plain language of Rule 1100 which provides in Section (c)(1):

“At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.”
and
“(c)(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.”

A careful study of the testimony indicates that the requirements of Judge Katz were met in the long extension hearing and that despite due diligence the Commonwealth was unable to meet the run date.

The evidence presented was that the trial delays were as a result of judicial delays, illness, and the unavailability of the co-defendant’s attorney. From this evidence and the undisputed history of the case Judge Rosenwald concluded that the Commonwealth had diligently attempted to bring the case to trial. Commonwealth v. Stumpo, 306 Pa.Superior Ct. 447, 452 A.2d 809 (1982); Commonwealth v. Romberger, 490 Pa. 258, 416 A.2d 458 (1980); Commonwealth v. Walls, 303 Pa.Superior Ct. 284, 449 A.2d 690 (1982); Commonwealth v. Tann, 298 Pa.Superior Ct. 505, 444 A.2d 1297 (1982); Commonwealth v. Sharp, 287 Pa.Superior Ct. 314, 430 A.2d 302 (1981).

In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Supreme Court stated:

“Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be .given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, 409 A.2d 308 (1980).
“... So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.”

Here the court overruled the hearing judge who decided as a finding of fact that due diligence had been exercised by the Commonwealth and granted the extension. However, the original finding was supported by competent evidence.

The Supreme Court in reversing the Superior Court in Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983) held that: “In support of its holding, the Court said that the requirement of Mayfield that court delay be unavoidable

“must be given a realistic construction. A rigid requirement that the Courts of Common Pleas, particularly in urban areas with severely crowded criminal and civil dockets, must continually arrange and rearrange their schedules to accommodate the 180 day rule, would be ill-advised.
“... Rule 1100 was designed to promote the administration of criminal justice within the context of our entire judicial system, not to render that system hostage to its own closed logic. The goals of efficiency and ease of administration which Rule 1100 serves are worthy; they should not be exalted at the expense of justice. Thus, in interpreting our Rule 1100, we must throw away the stopwatch and pick up the scales of justice.”

In Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), the Supreme Court held that in reviewing a hearing court ruling that the Commonwealth met its burden in applying an order extending time for commencement of trial, the Supreme Court considers only evidence presented by the Commonwealth and so much evidence as fairly read in the context of the record as a whole remains uncontradicted. This, then should certainly apply to review of the hearing by the trial court.

Rule 1100 has caused considerable confusion for the courts, the Commonwealth and defendants’ counsel resulting in extensive litigation which as by court decision has by now settled most of the questions raised. Judge Katz’s decision would start the confusion all over again.

The order discharging the defendant is reversed and the case remanded for consideration of defendant’s post-verdict motions. Jurisdiction is not retained.


author: SPAETH, President Judge:

text:
    476 A.2d 1347
    Kerry SMITH v. Scott MASON and Health Care Housekeeping Systems, Inc. v. Eileen CARR and Raymond J. Moore and Thomas J. Seminack v. Robert REED, and Raymond J. Moore. Appeal of John M. CORCORAN.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1984.
    Filed June 1, 1984.

      Harry A. Short, Jr., Philadelphia, for appellant.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from an order holding appellant in contempt of court and imposing a fine of $100. Appellant argues that the evidence of contempt was insufficient and that he was denied adequate procedural safeguards. We agree with appellant that the evidence was insufficient. We therefore reverse, without reaching appellant’s procedural argument.

Appellant is an attorney. The trial judge summarily held him in contempt of court at a pre-trial settlement conference. The proceedings at the conference were not recorded and we therefore do not have a transcript. Appellant does not argue, however, that the absence of a transcript has deprived him of a meaningful appeal. Rather, he has attached to his brief an affidavit stating the relevant facts, and a supplemental brief filed on behalf of the trial judge states that it does not dispute the affidavit. In these circumstances, we have an “equivalent picture” of what occurred in the trial court. See Nemeth v. Nemeth, 306 Pa.Super. 47, 451 A.2d 1384 (1982) (court had “equivalent picture” of hearing when appellant’s counsel was same as counsel below and gave account of hearing); Commonwealth v. Homsher, 264 Pa.Super. 271, 399 A.2d 772 (1979) (effective appellate review requires transcript or “equivalent picture” of proceedings below).

The facts as they thus appear are as follows: By letter dated September 23, 1981, the trial judge advised appellant and other counsel in the underlying case that a settlement conference was scheduled for October 6, 1981. This letter directed that counsel was to come to the conference with authority to settle the case (or bring someone with authority) and if unable to do this, notify the judge two days before the conference. By letter dated October 6, 1981, the conference was rescheduled for November 19, 1981. This letter contained the same directive regarding authority to settle. By letter dated March 25, 1982, a second pre-trial conference was scheduled for May 10, 1982. This letter made no reference to counsel coming with authority to settle. At the conference on May 10, 1982, after a brief discussion of the parties’ liabilities, appellant told the trial judge that no offer was to be presented on behalf of his client, and that the claims adjuster who was handling the case on behalf of the insurance carrier was in New York and available by telephone. Appellant had notified the claims adjuster of the conference and had been assured that the claims adjuster would be available for a telephone conference. The trial judge thereupon adjudicated appellant in contempt and imposed a fine of $100. Apparently the conference was then ended without any telephone call to the adjuster being placed. Trial Court Op. at 6.

Although the trial judge characterized his order as an order of civil contempt, we are not bound by this characterization. It is clear from the circumstances surrounding the entry of the order that it was an order of criminal contempt. The purpose of the fine was to punish appellant for not following the judge’s directive, and appellant could not purge himself of contempt and thereby avoid paying the fine by complying with the directive. See Commonealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). In appraising the sufficiency of the evidence, therefore, we shall ask whether it proved criminal contempt.

Under 42 Pa.C.S. § 4131, a court may impose a summary punishment for contempt of court in cases involving:

(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

A conviction of criminal contempt requires proof beyond a reasonable doubt of each element of the offense. Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977). To establish criminal contempt under subsection 2 on the basis of a failure to comply with a court order, it must be proved, inter alia, that appellant’s failure to comply with the order was willful or at least reckless. See Medve v. Walakovits, 305 Pa.Super. 75, 451 A.2d 249 (1982) cert. denied, sub nom. Orloski v. Mellenberg, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983) (collecting and analyzing cases). Proof of noncompliance alone is insufficient to support the conviction. See, e.g., Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977); Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976). Similarly, to establish criminal contempt under subsection 3 on the basis of misbehavior in the presence of the court, it must be proved, inter alia, that appellant had the intent to obstruct the proceedings. See, e.g., Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981); Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981). In this case the evidence did not establish the requisite intent.

Appellant argues that he did not disobey the trial judge’s directive, and that his conduct did not constitute misbehavior, because the March 25, 1982, letter did not direct that counsel was to come to the conference with authority to settle the case (or bring someone with authority) and if unable to do this, notify the judge two days before the conference. The trial judge rejected this argument, stating in his opinion that the March 25, 1982, letter was merely a confirmation of the date of the conference and that it did not change the policy established by the prior letters. While we are sympathetic to the judge’s understanding of the situation, nevertheless, the difference between the March 25, 1982, letter and the prior letters did give rise to some ambiguity, which must be considered in evaluating the sufficiency of the evidence of appellant’s intent.

Appellant points out that he did what is required by the Philadelphia Civil Trial Manual § 111(2), that is, he made sure that someone with authority to settle was available by telephone at the time of the conference. On behalf of the trial judge it is argued that if there really was an ambiguity in the judge’s directive, it would have been reasonable for appellant to have called the trial judge’s chambers for clarification of the problem, and also, to inform the judge that he was unable to comply with the directive. We agree that this would have been the most careful course for appellant to have taken. The question is, however, whether by taking the course he did appellant evidenced a willful violation of the trial judge’s directive or an intent to disrupt the proceedings.

We recognize that this is not a case in which appellant did not commit a conscious, deliberate act. Cf. Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977) (no proof that appellant received notification of expected appearances except for one); Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976) (appellant failed to appear on time because he overslept). Appellant admits that he received the relevant letters and that he chose to have someone with authority to settle available by telephone rather than to bring that person with him to the conference. But it is also not a case in which appellant did nothing to try to comply with the court’s order. Cf. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980) (appellant deliberately did not appear at call of list but chose to wait instead for opposing counsel; made no effort to inform presiding judge that he would be late even though his office was located across street from courthouse); Medve v. Walakovits, supra (appellant did not appear on time; acted with reckless disregard for tardiness when it was substantially certain that waiting for court administrator to strike a case would make him late for conference). Rather, this is a case in which the facts show that appellant made an effort to ensure that someone with authority to settle was available by telephone. This evidence reflects an intent to comply at least with the spirit of the trial judge’s directive, and to promote rather than disrupt the settlement conference; it cannot support a finding beyond a reasonable doubt that appellant intentionally violated the directive or acted in a way such that it was substantially certain that he would violate it. See In re Bernhart, 501 Pa. 428, 461 A.2d 1232 (1983) (attorney notified assistant court administrator of his need to appear in court in different county and was told nine cases preceded his on stand-by list); In re Ring, 492 Pa. 407, 424 A.2d 1255 (1981) (attorney with conflicting in-court commitments timely notified court of inability to appear); In re Mandell, 489 Pa. 522, 414 A.2d 1013 (1980) (attorney stated reasons for his tardiness and Commonwealth introduced no evidence to show invalidity of reasons); Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977) (judge was informed that attorney was at trial in different county and could not be present). We recognize the value of settlement proceedings and the necessity that the trial judge be able to control the proceedings. Nevertheless, a person may be convicted of criminal contempt' only if wrongful intent has been established, and the facts here do not establish it.

Reversed.

      . This is not to say that we condone the procedure followed here. Pa.R.A.P. 1923 provides a procedure for supplementing the record. Nevertheless, we can see no reason, given the parties’ agreement as to the facts, to require strict adherence to the rule.

        . This section was renumbered as 42 Pa.C.S. § 4132 and amended by Act of December 20, 1982, P.L. 1409 (No. 326), art. II, § 201, effective in 60 days.

      . In his opinion the trial judge cites subsection 3 as the basis of the order. Since the order was based on appellant’s failure to comply with a directive of the court, subsection 2 would appear to be the more appropriate basis for the order. However, under either subsection appellant’s intent had to be proved.


author: WICKERSHAM, Judge:

text:
    476 A.2d 1351
    COMMONWEALTH of Pennsylvania v. Terrance DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed June 1, 1984.
    J. Richard Narvin, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order entered in the Court of Common Pleas of Allegheny County, Criminal Division, denying appellant’s first petition, pro se, for post conviction relief without a hearing and without appointment of counsel.

Appellant was arrested as a seventeen year old juvenile on February 22, 1978, and charged with multiple counts of robbery and aggravated assault. On March 2, 1978, a hearing on the Commonwealth’s petition to certify the appellant for prosecution as an adult was heard by the Honorable R. Stanton Wettick, J. Judge Wettick certified the appellant for trial as an adult. Subsequently, the Commonwealth issued a thirty (30) count information charging the appellant with sixteen (16) counts of robbery, ten (10) counts of aggravated assault, three (3) counts of recklessly endangering another person and one (1) count of simple assault. The appellant then proceeded to six (6) jury trials before the Honorable Loran Lewis, J. Appellant was convicted of ten (10) counts of robbery, six (6) counts of aggravated assault, two (2) counts of recklessly endangering another person, and one (1) count of simple assault. Appellant was represented by the Public Defender’s Office at all trials. Timely post trial motions were filed in all cases and denied by Judge Lewis without opinion on February 5, 1979. On February 14, 1979, the appellant was sentenced on all convictions to a total term of not less than twenty (20) years nor more than forty (40) years. Notice of appeal from the judgment of sentence was filed on March 12, 1979, and we affirmed the convictions. Commonwealth v. Davis, 286 Pa.Super. 479, 429 A.2d 40 (1981). The appellant then filed a pro se post conviction petition alleging the ineffectiveness of trial and appellate counsel. Judge Lewis dismissed this petition, without appointment of counsel, on September 30, 1981. This appeal followed.

In dismissing the pro se Post-Conviction Act petition, without a hearing and without appointment of counsel. Judge Lewis said:

Presently before the Court is the above named petitioner’s first Petition filed pursuant to the Post Conviction Hearing Act. Said Petition will be denied without a hearing and without appointment of counsel.
Petitioner’s claims for relief are very specific, to-wit:
1. After being certified by juvenile court to stand trial as an adult, he
a) was denied the right to an arraignment and
b) was not afforded a preliminary hearing.
2. He did not have bail set.
3. He was denied the right to counsel of his own choice.
4. He was not informed by counsel that the Superi- or Court denied his direct appeal; therefore, he could not file a timely request for review in the Supreme Court.

Lower ct. op. at 1.

In Commonwealth v. Byrd, 261 Pa.Super. 225, 396 A.2d 7 (1978), a case in which the lower court had denied appellant’s Post Conviction Hearing Act petition without a hearing, but with appointment of counsel, Judge Spaeth (now President Judge) wrote:

A PCHA petition “should not be dismissed where the petitioner is indigent and has requested counsel, without affording him representation in that proceeding.” Commonwealth v. Fiero, 462 Pa. 409, 412, 341 A.2d 448, 450 (1975). See Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976); Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Prowell, 249

Pa.Super. 435, 378 A.2d 374 (1977). In Commonwealth v. Mitchell, supra, the Supreme Court explained the reason for this rule:

We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies, § 4.4, at 66 (1967): “It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se____ Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.”
Commonwealth v. Mitchell, supra, 427 Pa. at 397, 235 A.2d at 148, 149.

Id., 261 Pa.Superior Ct. at 227, 396 A.2d at 8-9.

In similar fashion, in Commonwealth v. Mawson, 306 Pa.Super. 22, 451 A.2d 1371 (1982) (Opinion by Montemuro, J.) we considered an appeal where a court of common pleas had summarily denied appellant’s petition for relief filed under the Post Conviction Hearing Act, without a hearing and without appointment of counsel. We said:

We find the summary dismissal of appellant’s PCHA petition without first appointing counsel to be error.
In Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969), our Supreme Court held that a PCHA petition cannot be summarily dismissed without appointment of counsel where waiver serves as the basis for denying relief. The rationale for this holding was explained as follows:
Whatever may be the merits on the question of waiver here, a hearing court cannot summarily dispose of a petition, without counsel, on the ground of waiver. Our rules provide for summary disposition only in cases where the issue has been determined against the petitioner, not where it has been waived because of petitioner’s failure to raise the question for a determination.
The reasons for this rule are quite simple. The question of waiver is often a complicated legal one. There may be ‘extraordinary circumstances’ which will justify petitioner’s failure to raise the issue. There may have been an intervening change in the law which will now entitle him to relief. And failure to raise an issue constitutes only a ‘rebuttable presumption’ of waiver. These are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with. (Citations omitted). Id., 436 Pa. at 45, 258 A.2d at 516-17.
Accordingly, the lower court’s order is vacated and the case remanded with instructions to permit appellant to be represented by counsel in filing an amended PCHA petition.

Id., 306 Pa.Superior Ct. at 24, 451 A.2d at 1372.

In Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980), our supreme court flatly held that:

As appellant alleged he was indigent and requested the appointment of counsel, the P.C.H.A. court erred in dismissing this (appellant’s first) petition without a hearing without first appointing counsel to assist appellant in the proceedings. Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976).

Id., 488 Pa. at 600, 413 A.2d at 387.

So too here, we find that the summary disposition of appellant’s first Post Conviction Act petition without appointment of counsel and without a hearing is not sustainable. Accordingly, the lower court’s order is vacated and the case remanded with instructions to permit appellant to be represented by counsel in filing an amended PCHA petition.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . In this appeal appellant raises the following issue:
      I. Whether the lower court erred in denying appellant’s pro se post conviction petition without the appointment of counsel or hearing?
      Brief of Appellant at 6.

       Our Rules of Criminal Procedure relating to Post Conviction proceedings state:
      “Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon." Pa.R.Crim.P. 1504.


author: WIEAND, Judge:

text:
    476 A.2d 1353
    COMMONWEALTH of Pennsylvania v. Donald CASON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1983.
    Filed June 1, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Gregory L. Heidt, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Donald P. Cason was tried by jury and was found guilty of receiving stolen property. On direct appeal from the judgment of sentence, Cason contends that the stolen property found in his residence, as well as succeeding statements made to the police, should have been suppressed as products of an illegal search. He also contends that the trial court erred when it received, over objection, evidence of an oral statement made by appellant which had not been previously disclosed by the Commonwealth as a part of its response to a defense request for discovery. These contentions are without merit; and, therefore, we will affirm the judgment of sentence.

At approximately 11:00 p.m. on December 21, 1980, Louis Holland discovered that his residence at 124 East 25th Street, Erie, had been burglarized. He called the police, and two policemen arrived at the scene within ten minutes. Police inspection of the exterior of the residence disclosed footprints in the snow which led from the point of entry to the front door of 126 East 24th Street, where appellant resided. The prints evidenced a shoe having a distinctive ribbed pattern.

A nighttime search warrant was immediately requested and obtained for the residence at 126 East 24th Street. The affidavit for the search warrant recited: “Probable cause: footprints leading from scene of burglary at 124 E. 24th [sic]. Footprints have very distint [sic] pattern, pattern (ribbed) prints left scene leading up to the door (front) at 126 E. 24th. These footprints are believed to be the same as the ones that were found at the west entrance where the illegal entry was gained.” The warrant was executed at 1:04 a.m., December 22, 1980, and various items of stolen property were found in appellant’s residence. These items, as well as shoes which matched the distinctive pattern observed in the snow, were seized. After appellant had been arrested and transported to the police station, he made both oral and written statements of an incriminating nature.

It is appellant's contention that the affidavit failed to contain facts sufficient to support a nighttime search under Pa.R.Crim.P. 2003. He argues that this rendered the search illegal and should have compelled the trial court to suppress the evidence seized and the incriminating statements thereafter made. There is no merit in these contentions.

The affidavit clearly contained sufficient facts to demonstrate probable cause for believing that property stolen earlier the same night from a neighboring residence was located in appellant’s dwelling house. The affidavit reflected that the theft had been committed only a few hours before the request for a warrant was made. Because the lapse of time had been so brief, it was apparent to any reasonable person that if the police moved quickly, there was a good chance that the stolen property would be recovered before it could be moved or sold. This was reasonable cause to conduct an immediate, nighttime search of appellant's residence. Because the dangers inherent in delaying the search until daylight were obvious, the sufficiency of the affidavit was not destroyed by the failure to recite therein that delay would increase the opportunity for disposing of the stolen property. The circumstances recited in the affidavit were adequate to permit a finding that an immediate search was necessary. See and compare: Commonwealth v. Crawford, 320 Pa.Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Moretti, 280 Pa.Super. 167, 421 A.2d 458 (1980); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980).

In Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983), this Court observed that the rights conferred by Pa.R.Crim.P. 2003 were not constitutional in dimension. It held, therefore, that a violation “will not result in the exclusion of evidence seized absent a showing that the defendant’s constitutional rights have been otherwise violated by the search.” Id., 315 Pa.Superior Ct. at 589, 462 A.2d at 748. In the instant case, the probable cause for issuance of a warrant was great. There was no basis for finding that appellant’s Fourth Amendment right to be free from unreasonable searches and seizures had been violated. Therefore, even if the request for a nighttime search had not been as carefully drawn as it might have been, the court did not err when it refused to suppress the stolen property recovered during the search of appellant’s home or the incriminating statements which appellant thereafter made.

At trial, the prosecutor introduced into evidence shoes which had been seized during the search. An investigating officer testified that appellant had admitted that the shoes belonged to him. Appellant objected to this testimony on grounds that the Commonwealth had not disclosed the substance of the statement in response to his demand for continuing discovery under Pa.R.Crim.P. 305. The prosecutor said that he “had no idea until today” that such a statement had been made by appellant.

The trial court has broad discretion in determining the remedy to be applied in the event there is a failure to comply fully with a demand for discovery. Pa.R.Crim.P. 305 E. In this case the Commonwealth had given the defense a copy of appellant’s written statement and had disclosed his oral statement as well. The Commonwealth had also disclosed that “defendant’s shoes” constituted tangible evidence which the Commonwealth had in its possession and intended to use at appellant’s trial. Thus, the defense was neither surprised nor prejudiced by the Commonwealth’s failure to disclose an incidental, oral statement made by appellant during a police search of his premises to the effect that the ribbed shoes belonged to him. His oral admission of ownership was competent evidence, and the trial court did not abuse its discretion in allowing it to be received and considered by the jury.

The admission of this evidence, moreover, was cumulative of other evidence and harmless beyond a reasonable doubt. The investigating officer had previously testified that he followed footprints in the snow to appellant’s front door and that he had asked appellant to show him the shoes he had been wearing earlier that night. The shoes shown to the police by appellant had been seized, and at trial they were produced, marked as an exhibit, and received in evidence without objection. Appellant’s oral admission that the shoes were his, as subsequently testified to, was cumulative of this earlier evidence. Because it was merely cumulative of other persuasive evidence which had been properly received, the receipt of this evidence, even if subject to objection because not disclosed pre-trial, was harmless. See: Commonwealth v. Norris, 498 Pa. 308, 317-318, 446 A.2d 246, 250 (1982); Commonwealth v. Story, 476 Pa. 391, 411, 383 A.2d 155, 165 (1978); Commonwealth v. Nicholson, 308 Pa.Super. 370, 383 n. 8, 454 A.2d 581, 587 n. 8 (1982).

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3925.


author: BECK, Judge:

text:
    476 A.2d 1357
    CYNTHIA H., Appellant, v. MILTON M.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1983.
    Filed June 1, 1984.

      Joseph C. Mansfield, Philadelphia, for appellant.
    Gary M. Rose, Philadelphia, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   BECK, Judge:

This is a paternity and support action. Appellant Cynthia H. appeals from the February 19, 1982 Order of the Court of Common Pleas, Philadelphia County, Family Court Division, denying her petition for reconsideration of the court’s December 11, 1981 Order dismissing her complaint on the ground that the statute of limitations on her claim had run. On appeal, she contends that appellee Milton M. waived the right to plead the statute of limitations defense by his delay of nearly two years in filing an answer raising the defense and by his other actions during that time period. We disagree and therefore affirm.

The facts in this case are uncomplicated. Appellant gave birth to a child, Margaret H., on March 15, 1973. Appellant did not seek a legal determination of Margaret’s paternity until December 11, 1979, when appellant filed her complaint for support in the instant case, naming appellee as the father. Because appellee did not acknowledge paternity or voluntarily contribute to Margaret’s support, the limitations period applicable to this action is a six-year period commencing on the date of the child’s birth. The statute had therefore run nearly nine months prior to the filing of the complaint.

Appellee did not immediately file any responsive pleading to the complaint, but on March 20, 1980, he appeared and denied paternity. On June 26, 1980, while represented by counsel, appellee entered into a blood test stipulation with appellant. The stipulation provided that HLA blood studies would be conducted, with appellee and the county to split the costs initially. If the tests excluded appellee, the action was to be withdrawn and appellee reimbursed for his share of the costs; but if appellee was not excluded, he was to reimburse the county for its share of the costs and the test results were to be admitted into evidence. The case was then continued three times at appellee’s request. The first continuance was to obtain counsel, and the others to obtain appellant’s hospital records. Only on October 23, 1981, did appellee file an answer with new matter including the affirmative defense of the statute of limitations. The court took the case under advisement, and the orders discussed above dismissing appellant’s complaint were entered. In finding appellant’s complaint barred by the statute of limitations, the court held that appellee’s entering into the HLA stipulation, requesting continuances, and long-delayed filing of his answer did not constitute a waiver of the statute.

The issue before us therefore is whether the lower court correctly concluded that appellee had not waived his right to raise the bar of the statute of limitations. We note at the outset that appellee’s untimely answer did not expressly violate the Rules of Civil Procedure applicable to support actions. Pa.R.C.P. 1910.7(a) provides that in support actions, no responsive pleading is required of the defendant. Support actions are not governed by Pa.R.C.P. 1030, requiring the defense of the statute of limitations to be raised in a responsive pleading under “New Matter,” or by Rule 1026, requiring responsive pleadings to be filed within 20 days after service of the complaint. The defendant is, of course, permitted to plead to the complaint if he so chooses. See Explanatory Note, Pa.R.C.P. 1910.7. The Note also recommends that “[a] defendant who wishes ... to raise the statute of limitations in paternity cases should do so as promptly as possible.” However, this gloss on Rule 1910.7 must be read in light of Rule 126, which provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Even where the applicable Rules of Civil Procedure specify when and how the statute of limitations defense is to be raised, our courts have held that “a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party.” Gagliardi v. Lynn, 446 Pa. 144, 151, 285 A.2d 109, 112 (1971), quoting Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725, 729 (1960). The Gagliardi Court, which based its holding on Pa.R.C.P. 126, applied this reasoning to permit the filing of an answer raising the statute of limitations defense more than a year after the filing of the complaint. Quoting the lower court’s opinion, the Supreme Court noted that the plaintiff was not prejudiced by the late filing because “timely notice could not have altered his position. The statute of limitations had run prior to the commencement of the action.” 446 Pa. at 151, 285 A.2d at 112.

A related question was recently decided by this Court in Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983). Tanner involved a motion by the defendant to amend its answer to include the statute of limitations defense. In holding that the lower court had abused its discretion in denying the motion to amend, we stated that “such amendments should be liberally allowed except where surprise or prejudice to the other party will result.” 321 Pa.Super. at 142, 467 A.2d at 1169, quoting Hughes v. Pron, 286 Pa.Super. 419, 425, 429 A.2d 9, 12 (1981).

We hold that Gagliardi and Tanner are controlling in the instant case. It is especially appropriate for the decision whether to allow the late pleading to rest within the sound exercise of the trial court’s discretion in paternity and support actions, where there are no mechanical rules or stated time limits to place a party on notice that his pleading was out of order or that he has waived the right to assert certain defenses.

We therefore find that the trial court did not abuse its discretion in allowing appellee to raise the bar of the statute of limitations as a defense. In so holding, we recognize that the impact of our decision is that appellant loses a case in which she may have been successful if it were not time-barred. However, this is not the kind of prejudice which warrants disallowing the delayed pleading. “Prejudice” here is not mere detriment to the other party’s case but rather prejudice arising specifically from the the delay in pleading the limitations defense. Tanner, supra, 321 Pa.Superior Ct. at 138, 467 A.2d at 1167. Appellant had failed to show that she was in any way prejudiced by the delay in the filing of appellee’s answer. Based on uncontroverted facts, the six-year statute of limitations had already run prior to the filing of the complaint. Therefore, the trial court properly dismissed appellant’s complaint.

Order affirmed.

      . 42 Pa.C.S. § 6704(b). This provision was enacted in 1978. Although the two-year criminal limitation period in effect at the time of Margaret’s birth had already run before its repeal, this civil action is properly governed by the new six-year statute. Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982).

      . The test results did not exclude appellee; the probability of paternity was estimated at approximately 88 percent.

      . This rule, although adopted in 1981, is applicable to actions pending at the time of adoption. See Pa.R.C.P. 52.


author: LIPEZ, Judge:

text:
    476 A.2d 1360
    Donald FOX and Kay Fox, his wife, Appellants, v. VOLKSWAGON OF AMERICA, INC. and YBH Porsche Audi and The Fidelity Bank.
    Superior Court of Pennsylvania.
    Submitted May 9, 1984.
    Filed June 7, 1984.
    Petition for Allowance of Appeal Granted Oct. 23, 1984.

      Jerome M. Dubyn, Philadelphia, for appellants.
    Richard A. Kolb, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   LIPEZ, Judge:

This is an interlocutory appeal as of right by plaintiffs from an order opening a default judgment against defendant Fidelity Bank. See Pa.R.A.P. 311(a)(1). We reverse and reinstate the judgment.

We agree with the court below that since this was a trespass action and plaintiffs admitted that the petition to open was promptly filed, the only issue is whether Fidelity Bank established a legitimate excuse for the default. See Schutte v. Valley Bargain Center, Inc., 248 Pa.Super.Ct. 532, 535, 375 A.2d 368, 370 (1977). We disagree with the lower court’s holding that Fidelity established a legitimate excuse merely by referring the complaint to its insurance carrier.

A delay solely attributable to an oversight or mistake on the insurance carrier’s part will excuse a default only if the insured has no reason to believe his interests are not being protected. Baskerville v. Philadelphia Newspapers, Inc., 278 Pa.Super.Ct. 59, 62, 419 A.2d 1355, 1356 (1980). A defendant cannot assert a justifiable belief that his interests were being protected, if he fails to inquire concerning possible problems of which he should have been aware under the circumstances. Id., 278 Pa.Superior Ct. at 62, 419 A.2d at 1357.

Here the petition to open judgment demonstrates on its face that Fidelity Bank had no justifiable belief that its interests were being protected by its insurer, INA. The petition avers that Fidelity referred the complaint to INA, but never inquired concerning the case because nothing was received from INA indicating a refusal to provide a defense. Ten months after service of the complaint, Fidelity Bank was served with a notice of intent to take a default judgment within ten days. This notice clearly informed Fidelity of the need to take some action within ten days to protect itself from a default judgment. Nevertheless, the petition to open judgment simply avers that the notice was referred to INA, and there is not even an allegation that Fidelity inquired of INA, concerning whether a defense was to be provided with respect to the complaint which had been forwarded ten months earlier. The failure to inquire or take any other action under these circumstances clearly shows that Fidelity Bank had no justifiable belief that INA was protecting its interest. Baskerville v. Philadelphia Newspapers, Inc., supra. Accordingly, the order opening the judgment must be reversed.

Order reversed, and judgment reinstated.

      . While paragraph 2 of the petition claims that the complaint was never served on Fidelity, paragraph 5 asserts that after being served with the complaint, Fidelity referred the complaint to INA. In any event, the record clearly shows that the complaint was served.

      . Baskerville cannot be distinguished on the ground that there the lower court had rejected the excuse, while here the court below accepted the excuse, since " 'a close reading of the traditional test for opening judgments indicates that the reasonable explanation for the default must be shown before the lower court decides how it should exercise its discretion.’” Sharon Hill Contracting Company v. Recreational Equipment Unlimited, Inc., 284 Pa.Super.Ct. 118, 125, 425 A.2d 447, 451 (1981), quoting Tronzo v. Equitable Gas Company, 269 Pa.Super.Ct. 392, 396, 410 A.2d 313, 315 (1979). Moreover, even if the abuse of discretion standard is applied here, the order of the court below must still be reversed, since a determination that Fidelity’s excuse is reasonable under these circumstances is clearly an abuse of discretion. Thus we need not consider Fidelity’s contention that it has a meritorious defense, since that is only a consideration in a trespass case when the other equities are unclear. Schutte v. Valley Bargain Center, Inc., 248 Pa.Super.Ct. 532, 535 n. 1, 375 A.2d 368, 370 n. 1 (1977).

      . Fidelity’s claim that INA believed it still had an extension of time from plaintiffs' attorney when the default judgment was entered is without merit for two reasons. First, plaintiffs’ answer to the petition to open (the factual averments of which are admitted by Fidelity’s failure to take depositions, Pa.R.C.P. 209) plainly shows (as documented by Exhibit D) that at the time default judgment was entered, INA had permitted the additional ten-day extension from plaintiffs’ attorney to expire without taking action, despite the attorney’s clear warning that no more additional extensions would be granted. Second, even if Fidelity’s assertion about INA’s belief were true, this would provide no excuse for Fidelity’s failure to act or even make inquiry of INA.


author: BROSKY, Judge:

text:
    476 A.2d 1362
    COMMONWEALTH of Pennsylvania v. Jack WILLS, Appellant. COMMONWEALTH of Pennsylvania v. Geoffrey ROSSMAN, Appellant. COMMONWEALTH of Pennsylvania v. Steven A. HARVEY, Appellant. COMMONWEALTH of Pennsylvania v. Thomas SHINE, Appellant. COMMONWEALTH of Pennsylvania v. Daniel BERG, Appellant. COMMONWEALTH of Pennsylvania v. Robin CORNELIUS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1984.
    Filed June 8, 1984.
    Petition for Allowance of Appeal Denied Oct. 2, 1984.

      David M. McGlaughlin, Philadelphia, for appellants.
    Richard A. Hernán, Jr., District Attorney, Warren, for Com., appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from the denial of a motion to appoint a physician under 35 P.S. § 780-118(a). Appellants argue that the statute requires such an appointment. We do not reach the merits of that issue since the order appealed from is a non-appealable interlocutory order. Accordingly, the appeal is quashed.

On the day voir dire was to commence appellants made a motion for the appointment of a physician to examine appellants to recommend whether, as a result of drug addiction, they should be treated and rehabilitated rather than prosecuted. This motion was denied and an appeal was taken. At the prosecution’s request, the court stayed further proceedings pending disposition of the appeal.

In the normal course of events, pre-trial orders in a criminal case are not appealable. Commonwealth v. Bennett, 236 Pa.Super. 509, 345 A.2d 754 (1975). Therefore, if this Court is to have jurisdiction over this case, it must be pursuant to an exception to the general rule.

One such exception is provided by 42 Pa.C.S. § 702(b), “Interlocutory appeals by permission”. Pursuant to this section, the court below did certify the order appealed from here. However, appellants failed to petition this Court for permission to appeal, as required by Pa.R.A.P. 1311. This omission deprives us of jurisdiction over the case, at least as a result of certification. Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980); Gellar v. Chambers, 292 Pa.Super. 324, 437 A.2d 406 (1981).

Another route validating an interlocutory appeal is Pa.R. A.P. 311 authorizing certain interlocutory appeals as of right. The instant order is not within the enumerated categories, nor within the categories created by case law, and is not appealable via that route.

There is a third option which could provide us with jurisdiction. Even though an order may have occurred pre-trial, if its practical effect is to terminate the litigation, it is immediately appealable. See Pa.R.A.P. 341; Gurnick v. Government Employment Insurance Co., 278 Pa.Super. 437 at 439-40 n. 2, 420 A.2d 620 at 621 n. 2 (1980). The instant order does not terminate, formally or practically, the prosecution.

Appellant argues that a fourth avenue supplies us with jurisdiction. The extraordinary circumstances doctrine has, in the past, allowed this court to exercise its discretion to entertain interlocutory appeals when it deems that justice so requires. While the Supreme Court of this Commonwealth still has this power, this Court does not. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

The appeals are quashed.


author: DEL SOLE, Judge:

text:
    476 A.2d 1363
    Marie GREENLEAF v. ROBERT F. FLOOD SUPPLY CO., Action Machinery Company, Pexto Machine a/k/a Peck, Stow and Wilcox Company and Positive Safety Manufacturing Company, Inc., and Equipto Co., Inc. and LVD Company. Appeal of LVD COMPANY.
    Superior Court of Pennsylvania.
    Submitted Jan. 3, 1984.
    Filed June 8, 1984.

      Domenic P. Sbrocchi, Bangor, for defendant-appellant.
    George A. Hahalis, Bethlehem, for defendants-appellees.
    Before SPAETH, President Judge, and DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

This matter is before the Court on an appeal from the Order of the Court of Common Pleas of Northampton County, Pennsylvania denying LVD Company’s Petition to Strike a Judgment. Jurisdiction is based upon Pennsylvania Rule of Appellate Procedure No. 311(a)(1).

Briefly stated, the record reveals that the Plaintiff filed an action in trespass seeking to recover damages for personal injuries which she allegedly sustained on September 24, 1974, while working on a machine at her place of employment. Her complaint was filed against Robert F. Flood Supply Company, Action Machinery Company, Pexto Machine a/k/a Peck, Stow and Wilcox Company and Positive Safety Manufacturing Company, Inc., Original Defendants. Subsequently, Pexto Machine filed a complaint to Join Equipto Co., Inc. and later LVD Company as Additional Defendants. No appearance was entered for LVD Company, service having been attempted by registered mail.

The matter was called for trial on October 31, 1978, before a judge of the Court of Common Pleas of Northampton County, Pennsylvania and the record reveals that no one appeared on behalf of LVD Company.

The Court, after discussion with counsel present, directed the jury to enter a verdict in favor of Plaintiff in the sum of $50,233.21 against Pexto Machine a/k/a Peck, Stow and Wilcox Company on the joinder. Verdicts were also entered in favor of Action Machine Company, Positive Safety Manufacturing Company, Inc., and Equipto Company, Inc. Counsel representing all parties except LVD Company, consented to the entry of the verdicts. No testimony was taken with respect to liability or damages at the time of the entry of the directed verdicts nor were any of the allegations of facts as contained in the Complaint to Join LVD Company entered as part of the record. Following the direction of the Court, the jury returned the verdicts as instructed.

On or about May 14, 1981, the Petitioner, LVD Company, received notice of a garnishment proceeding in Superior Court, County of Hartford, Hartford, Connecticut and following that retained counsel and filed the Petition to Open and/or Strike Judgment with the Court of Common Pleas of Northampton County, Pennsylvania.

The trial court determined that it would proceed on the request to strike the judgment and hold in abeyance the request to open the judgment. The trial court determined that it would proceed on the request to open the judgment. The trial court by its Order of June 21, 1982, accompanied by its Memorandum Opinion denied and dismissed LVD Company’s Motion to Strike Judgment and directed the parties to take whatever testimony deemed necessary. LVD has appealed the Order denying its Motion to Strike Judgment and for the reasons stated herein we Reverse.

First, it should be noted that a petition to strike a judgment can be granted only for a defect appearing on the face of the record. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1960). LVD has challenged the trial court’s entry of a directed verdict against it based upon the hearing where no evidence was taken to establish either liability or damages on the part of LVD. A review of the record clearly indicates that no testimony was taken and that no facts were introduced to establish either liability or damages against LVD Company. It is obvious that the directed verdicts on behalf of the Plaintiff against the Original and Additional Defendants and the verdict over against the Additional Defendant was based upon the consent of counsel present at the proceeding. Obviously, those parties who were present and consented to the entry of a verdict are bound by it, but they cannot bind the Additional Defendant who was not present.

The trial court in discussing the argument that no testimony was taken at the time of trial, stated in its opinion that this argument would have to be advanced after additional facts have been developed via deposition or otherwise. This is not the case. The record clearly reflects, in reviewing the transcript of the proceeding before the jury, that nothing was done at the time of the entry of the verdicts in this case to satisfy any legal requirement establishing a cause of action and/or liability on behalf of the Additional Defendant.

Pa. Rule of Civil Procedure 2255(c) which provides:
“No judgment on the pleadings may be entered in favor of any party against an additional defendant for failure to answer the complaint of the party joining him, but all allegations of fact and such complaint to which an answer is required and which are not sufficiently answered shall be conclusive upon the additional defendant.”

clearly prevents the entry of a default judgment against an additional defendant for failure to answer and/or appear at the time of trial. Thus, the trial court could not be treating LVD’s failure to appear as a default nor could it properly enter any damage award against LVD since no evidence of record appears to indicate the extent of the Plaintiffs injuries.

For this reason, we will Reverse the decision of the trial court and direct that the judgment entered against LYD Company be stricken. This matter will be returned to the Court of Common Pleas of Northampton County, Pennsylvania in order that that court may proceed with a determination as to whether or not LVD Company was properly served as an additional defendant in the within captioned matter and, if so, if it is liable on the cause of action declared upon by the Original Defendant.

Jurisdiction is relinquished.

SPAETH, President Judge, concurs in the result.

      . While Pa. Rule of Appellate Procedure No. 311(a)(1) permits this interlocutory appeal as a matter of right from the order denying the request to strike the judgment, it is this writer’s opinion that the Rule should be amended to prevent such an appeal where the relief requested is alternative, i.e., strike and/or open the judgment, until the trial court makes a determination on both requested reliefs sought.

      . The record does not reflect that LVD Company received notice of the trial date.

      . Our review of the record does not reveal that judgment was ever entered on the verdict. However, since all of the parties and the court have treated this matter as though the judgment had been entered, to the extent of having a certified copy of the judgment forwarded to a sister state for enforcement, we will treat the matter as though judgment had been entered and we are permitted to do this by virtue of Pa.Rule of Appellate Procedure 105(a) which permits us to disregard the requirements of provisions of any rules in a particular case in order to expedite the decision. Keeping in mind that this is not an appeal from the entry of a judgment but rather from an order denying a petition to strike judgment, which is an interlocutory order appeala-ble as a matter of right. Pa. Rule of Appellate Procedure 311(a)(1).


author: JOHNSON, Judge:

text:
    476 A.2d 1366
    EQUIPMENT FINANCE, INC. v. Edward J. TOTH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 11, 1984.
    Filed June 8, 1984.

      Daniel F. Svidro, Washington, for appellant.
    John A. Miller, Beaver, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant seeks review of the trial court’s refusal to grant him a jury trial, where he had failed to demand such right by endorsement on a pleading or by a separate writing in compliance with Pa.R.C.P. 1007.1, and where the right was first requested when the case was called for trial. Because we find that appellant failed to comply with the local rules of court governing post-trial review, we conclude the only issue before us to have been waived and we, accordingly, dismiss the appeal.

Suit had been instituted against appellant to recover an alleged indebtedness owed under the terms of a note and suretyship agreement. After the pleadings had been closed, the case was scheduled for pretrial conciliation. Neither appellant nor his counsel attended the pretrial conciliation conference which was held before a judge of the court of common pleas. Prior to the action being listed for the next trial list, neither party had made a formal demand for a trial by jury.

On March 10, 1982, the case was regularly called for trial. The Calendar Control Judge, noting that neither party had demanded a jury trial, assigned the case for disposition on a non-jury basis, even though the pretrial conciliation judge had previously entered a pro forma order listing the case on the jury trial list when the case had not settled. Counsel for appellant asserted a claim of a right to trial by jury both to the Calendar Control Judge and the judge to whom the case was assigned for disposition. When this claim was rejected, appellant, through counsel, noted his exception to the court’s ruling. Counsel then withdrew from the trial courtroom.

The case proceeded and a verdict was entered against appellant in the amount of $234,940.68. Upon receiving the verdict, appellant through counsel filed his exceptions. See Pa.R.C.P. 1038(d). In due course, these exceptions were scheduled for argument before the common pleas court en banc.

Post-trial proceedings before the court en banc in the Court of Common Pleas of Allegheny County are controlled by Local Rule 249(c)(3). In accordance with that local rule, argument lists before the court en banc are printed in the daily edition of the Pittsburgh Legal Journal at least seventeen (17) days before the date scheduled for argument, all matters to be presented to the court en banc which have been filed twenty (20) or more days before the scheduled date for argument are to be placed on the argument list for that date, and the brief of the moving party is to be filed and served upon all other parties not later than seven (7) days after publication of the argument list.

Although the date scheduled for argument of the exceptions filed on behalf of the defendant was properly printed in the Pittsburgh Legal Journal, the defendant neither filed a brief in support of his exceptions, in accordance with the local rules of court, nor did he appear at the scheduled argument to argue in support of his exceptions.

The proper disposition of this case is controlled by Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978). In that case, the hospital/appellant had raised eleven issues on appeal, after filing timely post-trial motions in the trial court following an adverse verdict. However, the hospital had not pursued its exceptions in the trial court. It neither filed a brief nor participated in oral argument before the trial court on those motions. There, as here, the local rules provided for the filing of briefs within certain time limits on pain of dismissal of the post-trial motions with prejudice. In a plurality opinion by Judge ROBERT VAN der VOORT, this court there concluded that:

... we cannot countenance the Hospital’s complete avoidance of procedural requirements, which operated to deprive the lower court of any meaningful opportunity to assess the merits of post-trial motions. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). We therefore deem the hospital to have failed to properly preserve the issues raised in its appeal.

257 Pa.Super. at 359-60, 390 A.2d at 1277. Cf., Straff v. Nationwide Mutual Fire Insurance Co., 230 Pa.Super. 403, 406-07, 326 A.2d 586, 587-88 (1974) (plurality opinion); Commonwealth v. Prisznyak, 306 Pa.Super. 137, 140-41, 452 A.2d 253, 254 (1982) (panel opinion); Commonwealth v. Dessus, 262 Pa.Super. 443, 452-53, 396 A.2d 1254, 1258 (1978) (majority opinion); Commonwealth v. Holzer, 480 Pa. 93, 100-01, 389 A.2d 101, 105 (1978).

We agree with the pronouncement by Judge GWI-LYM A. PRICE, Jr., in Straff, supra, as restated by Judge VAN der VOORT in Schneider, that procedural rules, either at the state or local level, are absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. Every court has a limited power to make such rules as the interest of justice or the business of the court may require. 42 Pa.C.S. § 323. Appellant has not contended, either in his brief or at oral argument, that Allegheny County Local Rule 249(c)(3) regulating the procedure to be followed on post-trial motions is in any way infirm. Nor do we find it so.

The application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion. Caples v. Klugman, 202 Pa.Super. 517, 520, 198 A.2d 342, 343-44 (1964); accord, Commonwealth v. Prisznyak, 306 Pa.Super. at 140-41, 452 A.2d at 254.

We recognize that counsel for appellant maintains his office for the practice of law in a county adjacent to the one wherein these proceedings occurred. However, it is clear from the record that opposing counsel also may be described as an “out-of-county” attorney. Opposing counsel had no difficulty appearing as scheduled at both the pretrial conciliation conference and the post-trial argument before the court en banc. Clearly, the filing of post-trial motions must be deemed to impose upon any party the obligation to be familiar with the local rules controlling disposition of the pending motions and the time and place that such motions will be heard.

We do not find the local rule here under review to be in any way inimical to our unified judicial system under the Constitution of 1968 nor to the statewide practice of law under our Supreme Court’s general rules. Neither the requirement for the publication of argument lists in the daily edition of the Pittsburgh Legal Journal nor the requirement for the filing and service of briefs prior to argument imposes an undue burden, in our view, upon attorneys who desire to practice law in several counties. Appellant does not contend otherwise.

Where, as here, a party litigant files post-trial motions but fails to either submit timely briefs or appear and argue the motions before a court en banc, we hold that any issues sought to be raised in such motions are waived and will not form the basis for an appeal to a reviewing court.

Accordingly, the appeal is dismissed.

POPOVICH, J., concurred in the result.

      . When the case was called for trial, appellant’s counsel moved "to proceed to jury trial nunc pro tunc.” Upon inquiry from the trial judge, counsel advised the court that appellant was "in the courthouse” but "not in the courtroom right now.” (N.T., March 10, 1982, at 3-4.)

      . Allegheny County Court of Common Pleas, Civil Division and Family Division, Local Rule 249(c)(3) provides, in pertinent part:
      (c)*(3) Court En Banc.
      (a) ...
      (b) ...
      (c) Arguments shall be scheduled in accordance with the court calendar. Lists shall be prepared by the Administrative Judge.
      (d) Argument lists shall be printed in the daily edition of the Pittsburgh Legal Journal at least seventeen (17) days before the date scheduled for argument.
      (e) All matters to be presented to the court en banc which have been filed twenty (20) or more days before a scheduled date for argument shall be placed on the argument list for that date.
      (f) The brief(s) on behalf of the moving party(ies) shall be filed and served upon all other parties no later than seven (7) days after publication of the argument list, except that the brief(s) on behalf of the moving party(ies) in motions for judgment on the pleadings and motions for summary judgment shall accompany the motions at the time of presentation and [be] served upon opposing counsel, and/or party(ies) within five (5) days thereafter...
      (Amended February 15, 1977, effective immediately; further amended June 1, 1982, effective immediately.)