author: BROSKY, Judge.

text:
    585 A.2d 49
    CONTINENTAL BANK, Appellant, v. Joseph ROSEN and Lillian Rosen. CONTINENTAL BANK, Appellant, v. Alan SIMONS and Annette Simons.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed Jan. 22, 1991.

      Glenn S. Gitomer, Philadelphia, for appellant.
    Daniel B.V. Pierson, Philadelphia, for appellee Rosen.
    Howard Gershman, Plymouth Meeting, for appellee Simons.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   BROSKY, Judge.

This is a consolidated appeal from orders granting stays of execution and awarding costs and attorney’s fees. Appellant raises one issue, which, as paraphrased, is whether the protections of 41 P.S. § 407(a), apply to an action against real estate where the principal on the confessed instrument exceeds $50,000? We affirm.

Briefly stated the facts of relevance are: appellees were sureties to certain commercial loans secured by mortgages and containing confession of judgment provisions. There was a default on the loan and judgment was confessed. The principal of the loans substantially exceeded $50,000 as did the confessed judgment. Appellant sought to execute upon the residences of appellees by the filing of a writ of execution based upon the confessed judgment. However, appellees objected asserting that the provisions of 41 P.S. § 407(a) precluded execution upon their residence upon a confessed judgment. The trial court agreed, stayed execution and awarded costs and attorney’s fees pursuant to the act.

Quite simply stated, the issue for our determination is whether the protections set forth at 41 P.S. § 407, precluding execution upon residential property upon confessed judgment and requiring the judgment creditor to file an appropriate action and proceed to judgment prior to executing upon such residential property, apply when the amount of the principal involved exceeds fifty thousand dollars. Quite simply stated, the answer is yes.

The statute in question provides that “[a]s to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, ... until plaintiff, ... files an appropriate action and proceeds to judgment or decree against defendant as in any original action____” 41 P.S. § 407(a). (Emphasis added). Residential real property is defined at 41 P.S. § 101 as “real property located within this Commonwealth containing not more than two residential units or on which not more than two residential units are to be constructed and includes a residential condominium unit.” It has not been contested that the personal residences which are the subject of the execution attempts in this case fall within the definition of residential real property. Thus, an elementary reading of the statute would suggest that the protections of the act apply to the attempted execution. The controversy in this case revolves around an earlier version of the statute, since revised, that had used the term “residential mortgage” where the term “residential real property” is found. “Residential mortgage” is defined, in material part, as an obligation with an original principal amount of $50,000 or less secured by a lien against residential real property. Id. Since the original principal amount in question in this case greatly exceeds the fifty thousand dollar mark the obligation is not a residential mortgage under the definitions of the act. Although the fact that the obligation in question is not a residential mortgage would seem to be of no significance under the current version of the law, appellant argues that the amount of the debt obligation remains significant in determining the applicability of the § 407 protections even after the amendment in question. Appellant further contends that a decision of this court supports this theory. This opinion is being published to dispel any lack of clarity that could be argued to exist in wake of the amendment to § 407(a) and, hopefully, to curtail further spurious litigation of what we would have thought to have been a decided point.

Appellant hangs its hat, so to speak, upon the decision of this court in McDowell National Bank of Sharon v. Stupka, 310 Pa.Super. 143, 456 A.2d 540 (1983). There we decided a question of whether a deficiency judgment had been preserved by the obtaining of a mortgage foreclosure judgment. The attempt to recover the deficiency was dismissed by the trial court upon motion as a deficiency can be recovered only by an in personam judgment. A mortgage foreclosure is. considered an in rem judgment. Appellant bank argued that the mortgage foreclosure judgment and confessed judgments had merged, thus providing the in personam judgment necessary for recovering the deficiency. One argument advanced by the bank in furtherance of this theory, and perhaps born somewhat out of desperation, suggested that the act in question precludes execution on residential mortgages upon a confessed judgment until plaintiff files the “appropriate action” specified in the act, which, the bank argued, should have merged with the confessed judgment. Apparently the logic, or, perhaps, illogic, of the argument was that since execution was not precluded under the act then we can assume the requirements of the act were met, which would mean that there had been obtained a personal judgment and the judgments would have merged.

Despite this argument we found that mortgage foreclosure and the confessed judgments did not merge. In arriving at this conclusion, and dealing with this quizzical argument, we stated that the provisions of the act had no bearing on the transactions involved in that case. Part of our analysis of this argument, (see reasoning below), was that the mortgage in question was not a residential mortgage under the act as it was for an original principal obligation of $330,000. Somehow from this opinion appellant here concludes that Stupka supports a theory that the protections of the act, as currently amended, do not apply to a residential mortgage in excess of $50,000 regardless of whether there is residential real property at issue; an argument that would have had substantial validity prior to the 1978 amendment, but is patently lacking any persuasiveness in light of that amendment. We find this argument specious for several reasons.

First, the protections of the act were not at issue in Stupka, rather the issue in that case was whether there had been a merger of judgments, thus, there is not a dispositive holding on the issue here in any event, but, at best, only persuasive authority discussing the applicability of the act. Second, the court indicates specifically at footnote 9 that the parties assumed that the act of 1974, the act as worded prior to the relevant amendment, applied to the facts of that case. Thus, any analysis set forth in the opinion could not be construed to apply the pertinent revision in the statute. Third, there is no indication that the debtor objected to the execution upon the residence. Consequently, it cannot be assumed from the fact that the execution took place that the terms of the statute were met, or alternatively, that the debtor was without power to prevent the execution had an objection been lodged. Fourth, the court positively asserts nothing more than that the mortgage would not be deemed a residential mortgage under the definitions of the act, a fact that was true both prior to, and subsequent to, the amendment in question. Apparently, this commentary was in response to the appellant bank’s assertion that the mortgage was a residential mortgage. However, regardless of this comment, the court does not assert that had the mortgage been within the $50,000 limit the act would have precluded execution, nor does the court indicate that the only thing preventing the protections of the act from applying is the fact that the mortgage principal was in excess of $50,000. Indeed, execution in Stupka was facilitated by an action in mortgage foreclosure which, under the terms of the act, would appear to be another acceptable approach for the creditor to proceed with execution. Thus, were we to assume from the fact that the execution took place that it could not have been prevented by the debtor, which is essentially the assumption appellant here asks us to make, it is still entirely possible that the debtor was construed to be without power to prevent execution simply because the creditor bank had proceeded by mortgage foreclosure. Of course, as appellant here did not proceed by mortgage foreclosure this argument is unavailable to it.

The only ammunition in Stupka for appellant’s theory is the commentary in the opinion that the mortgage is not a residential mortgage under the act, a fact that is given here, and the fact that the court footnoted the text of the current version of the act. Appellant has grasped at this straw to indicate that the entire discussion was an interpretation of the act as amended. However, as outlined above, there are serious flaws in this theory and the mere fact that the amended version of the act was quoted in a footnote does not provide the quantum leap in logic necessary to support appellant’s theory. Nothing in the opinion indicates that the focus of the protection under the revised act is qualification as a residential mortgage as opposed to qualification as residential real property. Furthermore, we would have thought that any doubt as to the proper interpretation of the act would have been clarified by our decision in First National Bank of Allentown v. Koneski, 392 Pa.Super. 533, 573 A.2d 591 (1990).

In Koneski we decided whether, under the act, debtors who successfully blocked execution on their residence under § 407(a) were also entitled to attorney’s fees and costs. The trial court denied these costs because the mortgage in question exceeded $50,000 and was not a residential mortgage under the act. We reversed indicating the operative factor under the act was no longer “residential mortgage” but was “residential real property.” We stated: “§ 407(a) is not limited to confession of judgment proceedings involving residential real property which is encumbered by a residential mortgage. Instead, § 407(a) describes the procedure to be utilized in confessing judgment against ‘any residential real property.’ ” (Emphasis in original, citation deleted). At footnote 4 we stated: “[tjherefore, by amending the statute, the legislature evinced a clear intent that the provisions of § 407 should be applied to actions involving confession of judgment against all residential real property, and not merely those involving ‘residential mortgages.’ ” Similar to the argument made by appellant here, the trial court in Koneski had read Stupka to stand for the proposition that despite the 1978 amendments to the statute, § 407 applied only to actions on residential mortgages. Similar to our discussion above, we explained why Stupka did not support that proposition, and further added that to the extent Stupka conflicted with the holding being made in Koneski, that reasoning must be rejected. In light of our decision in Koneski we find it difficult to believe that this argument is still being advanced in a case like the present one.

Orders affirmed.

POPOVICH, J., concurs in the result.

      . It would seem rather obvious that if this case were being decided under the previous version of the statute the protections of the act would not have applied because the action would not have been upon a residential mortgage.

      . 41 P.S. § 407(a) states in relevant part: [n]othing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desires.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    585 A.2d 53
    George E. KEARNS, Jr., Appellant, v. PHILADELPHIA LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1990.
    Filed Jan. 17, 1991.

      Thomas A. Leonard, Philadelphia, for appellant.
    Deborah J. Krabbendam, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant, George E. Kearns, Jr., appeals from the May 24, 1990 en banc Order granting appellee/Philadelphia Life Insurance Company’s (hereinafter PLI) motion for judgment notwithstanding the verdict, thereby disallowing appellant payment on two $100,000 life insurance policies issued by appellee on appellant’s wife.

In August, 1980, appellant’s wife, Wilhelmina, underwent a hysterectomy for an ovarian cyst which was later ascertained to be malignant. As physicians had advised appellant the encapsulated malignant cells had been fully excised, appellant and his daughter asked that his wife, a 53-year old woman who had lost a grandfather and both parents to cancer, not be informed of the carcinoma. In December, 1981, the appellant, an attorney for 30 odd years, through an independent insurance agent and business associate of his, applied to PLI for a $100,000 insurance policy on the life of Wilhelmina. This policy, and a second policy, also for $100,000, were issued on February 16, 1982 and March 22, 1982, respectively. In May, 1982, Wilhelmina was diagnosed as having lung cancer and died in December of that same year. Appellee denied appellant’s claim for the insurance proceeds, averring the Kearns failed to disclose, in the course of procuring the policies, that the deceased insured’s past medical history included a diagnosis of ovarian cancer. Appellant then brought suit to recover on both policies and received a jury verdict. However, the court granted appellee’s motion for judgment notwithstanding the jury verdict and appellant is now before this Court appealing the Order granting same.

Appellant alleges three errors by the trial court: 1) the en banc court relied upon an erroneous legal standard in granting the motion for judgment n.o.v.; 2) the court improperly imputed and bound the appellant to Wilhelmina’s incorrect representations, or lack thereof, on the insurance application regarding the 1980 ovarian cancer diagnosis; and 3) there was insufficient evidence to support judgment n.o.v.

The grant of a judgment notwithstanding the verdict may only be entered in a clear case where the facts are such that no two reasonable persons could fail to agree that the verdict is improper, and should not be entered in cases where evidence is conflicting upon material fact. Northwest Savings Assoc. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). On appeal from an Order of a trial court granting judgment n.o.v., this Court is required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Lowry v. State Farm Insurance Companies, 392 Pa.Super. 77, 572 A.2d 700 (1990).

The crux of the appellee’s defense in denying payment on the policies was the appellant’s intentional misrepresentation of his wife’s state of health on the applications for the insurance policies. Appellee argued the appellant knew of his wife’s 1980 bout with ovarian cancer yet purposefully withheld this material fact from the appellee. The trial court found, with regard to the first insurance policy, that the appellant completed pages one and two, indicating the insured, the beneficiary and the insured’s health statement, and then signed the forms guaranteeing their veracity and gave the blank medical exam form to his wife to be completed later in conjunction with the exam. After the exam, Wilhelmina returned the completed form to her husband who passed it on to the agent who forwarded it to PLI. The fact that appellant signed a blank form does not relieve him of responsibility for the accuracy of the averments contained therein. See Indovina v. Metropolitan Life Ins. Co., 334 Pa. 167, 5 A.2d 556 (1939).

As is the course in the insurance business, appellee relied on answers on Wilhelmina’s exam form in deciding whether it would be financially prudent to issue the life insurance policy at the premium rates and terms sought. Despite the form’s specific request “Have you ever been treated for or ever had any known indication of ... [disorder of skin, lymph glands, cyst, tumor, or cancer?”, the query was answered by the Kearns in the negative and there was no allusion whatsoever to the ovarian cancer.

The second policy was procured shortly thereafter, in much the same manner, and required no physical. An investigator did, however, contact the Kearns in accord with PLI’s practice to investigate the personal circumstances of a proposed insured. As Wilhelmina was out of the country, the appellant responded to the investigator’s questions. Contemporaneous with his conversation with the appellant, the investigator prepared a report which stated in relevant part:

HEALTH: She enjoys good health. She is not handicapped. She has not been sick or ill. No history of serious health problems. She did have a hysterectomy IV2 years ago, under staff physician, at Mercy Catholic Medical Center, Mercy Fitzgerald Division, Lansdowne Ave., Darby, PA., and made a normal recovery.

(Appellee’s trial exhibit 5.) On the basis of these representations and those made on the first policy application, PLI issued a second $100,000 life insurance policy.

Evidence of record, primarily the testimony of the appellant, indicates there is no conflicting evidence with regard to material facts. Appellant repeatedly admits he was aware of his wife’s ovarian cancer yet signed the policy application denying any previous cancer diagnosis. Appellant’s argument there was no fraudulent misrepresentation as his wife had no knowledge of the ovarian cancer does not withstand judicial scrutiny in that he was very much aware of the cancer diagnosis. The Court of Common Pleas, sitting en banc, cited our Supreme Court when it stated:

The rule governing cases of this sort was set forth in Evans v. Penn Mutual Life Ins. Co., 322 Pa. 547, 555, 186 A.2d [A.] 133 (1936) [and reiterated many times since]: “where it affirmatively appears, from sufficient documentary evidence, that the policy was issued in reliance on false and fraudulent statements, made by or on behalf of the insured, as where false answers are shown to have been given by insured under such circumstances that [sjhe must have been aware of their falsity, the court may direct a verdict or enter judgment for the insurer.” (emphasis in the original). Also stated in Evans, supra, 558-559: “... where the uncontradicted testimony of a party’s own witnesses] establish facts essential to his opponent’s case ... facts thereby established are to be taken as true, and, if sufficient to avoid the policy, they may warrant the entry of judgment for the insurer.”

(Slip Op., Goldman, Goodheart, Hill, JJ., 5/23/90, p. 9) (en banc), citing Kizirian v. United Benefit Life Ins. Co., 383 Pa. 515, 119 A.2d 47 (1956). The court also cited the following statutory insurance law in support of its finding that the reasoning of Evans and Pennsylvania statutory law supports the view that the law of fraudulent misrepresentation focuses on how the policies were obtained and applies to statements made or conduct undertaken on behalf of the insured, as well as to the insured’s conduct.

40 P.S. § 511a (“Effect of medical examination and waiver thereof”) provides, in relevant part, that after a legitimate medical examination, “[insurer] is estopped from setting up in defense ... that the insured was not in the condition of heálth required by the policy ... unless the same was procured by or through the fraud, deceit, or misrepresentation, on or on behalf of the insured ”. (Emphasis added).

(Slip Op. at 10.) The certification clauses on the policy application forms, signed by the appellant/beneficiary, represented to PLI all statements made therein were true and complete to the best of his knowledge. The record is replete with instances wherein the appellant admits he knew the insured suffered from ovarian cancer prior to applying for the insurance yet knowingly signed the application denying same. The appellant also verbally misrepresented the facts concerning insured’s health when he spoke to PLI’s investigator. Appellant tries to mitigate the impact of his deception with regard to the hysterectomy and accompanying cancer by saying had he been asked point blank “has your wife ever had cancer?”, he would have answered in the affirmative. Such semantic evasiveness, not unlike that of a child wishing to escape punishment for a falsehood because he was not specifically confronted, will not be tolerated by this Court. Appellant admitted he had exclusive possession of material knowledge concerning the health history of the proposed insured and made no effort whatsoever to disclose it to PLI in the course of procuring the policies. Wilhelmina’s ignorance of the ovarian cancer does not justify appellant’s bad faith conduct in this matter. Allowing appellant the benefit of every possibly doubtful inference, it nonetheless remains perfectly clear that “[material] falsity and the requisite bad faith affirmatively appear from the uncontradicted testimony of plaintiff’s own case.” (Slip Op. at 22, citing Prevete v. Metroplitan Life Insurance Co., 343 Pa. 365, 22 A.2d 691 (1941).)

On the basis of the aforesaid discussion, appellant’s arguments that the record lacked sufficient evidence to support a judgment n.o.v. and that he was improperly held responsible for the confidential representations of his wife on the policy application are without merit. Nor does appellant’s argument speak well for him, the person who became the de facto beneficiary of his own fraudulent conduct.

Finally appellant contends the court relied upon an erroneous legal standard in support of its entry of judgment n.o.v. Specifically, appellant argues the court failed to analyze PLI’s fraudulent misrepresentation defense under the “clear and convincing” or “clear, precise and indubitable” evidentiary standard, and in support of its allegation, cites the court’s Opinion wherein it summarized the appellee’s burden of proving fraud as being by “clear and satisfactory.” (Slip Op. at 11.) This last argument is equally without merit.

The court was well aware of the heavy burden PLI had to meet in order to prevail on its defense of fraudulent misrepresentation and instructed the jury accordingly (T.T., 7/28/89, p. 73). The fact that the court chose to cite a Supreme Court case wherein the exact phrase “clear and convincing” was not uttered is not proof positive the court failed to employ the appropriate standard in its analysis. The appellant’s argument is merely one of semantics. There is no evidence in the thoroughly reasoned Opinion that the court departed from the clear and convincing standard to the less stringent preponderance standard in arriving at its decision to grant judgment n.o.v. Additionally, it must be noted that in order for the court to have properly granted judgment n.o.v., PLI must have established its defense of fraudulent misrepresentation by an even more stringent standard, that being by facts and law upon which “no two reasonable persons could fail to agree that the verdict was improper.” Northwest Savings, supra.

In light of the foregoing discussion, we find the court properly entered judgment n.o.v. in favor of PLI.

Judgment affirmed.

      . The pathology reports identified the growth as a papillary serus cyst adenocarcinoma of the right ovary.


text:
    585 A.2d 471
    COMMONWEALTH of Pennsylvania v. David Joseph MUNCHINSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1990.
    Filed Nov. 30, 1990.
    Reargument Denied Feb. 11, 1991.

      John S. Cupp, Jr. Connellsville, for appellant.
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant’s counsel, in flagrant violation of the rules of appellate procedure in briefing this case, has inundated this Court with an appellate brief of 203 pages including 28 statements of questions involved covering 6 pages, as well as a supplemental brief of 16 pages with 40 pages of appendices, and a reply brief of 37 pages with 17 pages of appendices. The statement of issues involved is so convoluted and serpentine in expression and logic, as to provide extreme difficulty for this Court to extrapolate the essence of the arguments from irrelevant and inappropriate argument.

Pa.R.A.P. 2101 requires conformance with the requirements of the Rules of Appellate Procedure, and if noncompliance is substantial, the appeal may be quashed or dismissed. Pa.R.A.P. 2116 specifies the statement of questions involved should not ordinarily exceed 15 lines and must never exceed one page (here, there were 28 statements covering five pages). The statement of the case required by Pa.R.A.P. 2117 was not directed to the procedural aspects of the case but contained mostly arguments concerning the errors of the trial court and the alleged inability of appellant to obtain information he desired. Further, appellant failed to comply with subsection (c) of Rule 2117 in designating where in the record the issue was preserved and the method of raising the question. Rule 2135, Length of Briefs, limited appellant’s brief to 50 pages, which appellant has violated by a factor of 4, submitting a brief of 203 pages. Appellant acknowledges the flagrant violation of the rules and seeks to hide from its consequences by alleging in statement of question XXVIII the unconstitutionally of the Rules of Appellate Procedure in limiting the brief to 50 pages, thereby limiting appellant’s ability to present full and complete arguments. Dealing with this issue instantly, appellant points to no authority or constitutional support which denies the Supreme Court, with its constitutionally mandated powers, the right to regulate the procedures for taking appeals. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The cases are legion which interpret that authority and render appellant’s argument ludicrous and totally without merit. The Pennsylvania Constitution gives our Supreme Court exclusive power to establish rules for the state courts. In re 42 PA. C.S. § 1703, 482 Pa. 522, 528, 394 A.2d 444, 448 (1978). We, as an intermediate appellate court, can neither change nor ignore such rules. The remedy in this instance is to quash the appeal for failure to comply with the rules of appellate procedure. The consequence, however, would be to delay final determination of any legitimate issues present, at great expense to the taxpayers, as the case would return to this Court because of ineffectiveness of appellate counsel. Having been notified of his dereliction, it would not be remiss for this Court to direct the Disciplinary Board of the Supreme Court to review counsel’s conduct, particularly if the behavior is repeated.

In order to expedite this appeal, we will consolidate the statements of questions presented, as many are duplicative and redundant, and deal with them in categories whereby their relationship to each other can be discussed in some coherent and logical fashion. Initially, a short factual and procedural history of the case is helpful to assist us in focusing on the underlying issues. For this purpose, the history provided by the trial judge in his Opinion appears to offer the clearest and most cogent analysis. Appellant’s statement is of reduced value as it confuses argument with factual history.

On the night of December 1, 1977, the defendant, [David Joseph] Munchinski, met with Leon E. Scaglione, (hereafter called “Scaglione”), and Richard A. Bowen, (hereafter called “Bowen”), at “Harry’s Bar” in Greensburg. Bowen was introduced to the defendant by Scaglione, who he had known for several years. Scaglione and the defendant told Bowen that they were going to Bear Rocks “to rip-off some drugs” and wanted Bowen to drive the car. (N.T. 179). Bowen agreed, and drove Scaglione and Munchinski to a cabin in Bear Rocks. Scaglione told Bowen to stop the car. Both Scaglione and the defendant exited the car and disappeared in the direction of the cabin. While sitting in the car, Bowen heard the sound of nails being pulled. After a few minutes, Scaglione returned to the car and asked Bowen to come into the cabin, telling him “that I would like this, or I would dig this.” (T. 181).
After entering the cabin, Bowen saw Munchinski “with a gun in his hand holding two fellows at gun point.” (N.T. 181). Scaglione then demanded that the two men give them the drugs. They responded that they didn’t have any. Scaglione then forced one of the men to take his pants off, and Scaglione sodomized him, (N.T. 182-183), after which Munchinski “did the same thing to the other fellow he had the gun on.” (N.T. 183).
Afterwards, Munchinski and the man on whom he was holding the gun went into another room and “returned with a little jewelry box which was full of little bags of white powder.” (Id.) Scaglione became very excited at that point and then shot repeatedly the man he was holding at gun point (N.T. 184). Bowen moved for the door whereupon Munchinski turned his gun on him. Scaglione told him to “knock it off” and the defendant then turned around and began firing at the other man. (Id.) Bowen then ran to the car and sat in the driver’s seat, hearing several more shots being fired. Scaglione and the defendant then came running from the cabin yelling “get out of here.” Bowen then drove the two back to Greensburg to the “William Penn Club.”
The next day Bowen left for Oklahoma where he remained until the following March when he was extradited on other charges.
During the early hours of December 2, 1977, Bonnie Blackson and her husband were awakened by noises on the porch of their home at 866 Rockpool Road, Bear Rocks, which sits approximately fifty yards to the rear of the cabin where the killings took place. Upon investigation, they found a man sitting on their porch, slumping slightly, making no visible signs of movement. They called EMT’s from Mount Pleasant who examined the man, finding him dead. The body was later identified as that of Peter Alford.
The Pennsylvania State Police were notified, and Trooper Richard W. Powell arrived, along with Corporal Richard Cecconello. They investigated around the Blackson home and found a trail of blood that led to the cabin in the rear. They entered the cabin and searched it, finding a partially nude male body lying in the living room in a pool of blood, and exhibiting several gunshot wounds. (N.T. 28). The body was later identified as that of Raymond Gierke.
On January 28, 1978, Debra Sue Dahlmann and Lori Jane Lexa, friends of the two murder victims, entered the “Five Points Bar” in Greensburg. After they walked into the bar, the defendant called Dahlmann to his table. He was seated with Scaglione and another man whose name she did not know. The defendant asked who Dahlmann had with her. She told him that her friend was Lori Lexa, to which the defendant asked, “Petie Alford’s girl friend?” She said “yes.” He then told them to sit down but they refused, and the defendant then pulled a knife and told them to sit down. (N.T. 159). They did. The defendant then told them to “speak the truth, say ‘sala’,” and he said “Petie Alford had said ‘sala’ before he died.” (N.T. 159). The women asked Munchinski if he had seen Petie Alford at Bear Rocks before he died, and Munchinski said “yes.” They also asked if he saw Gierke that night too, to which he responded that he had and that he had shot Gierke. (N.T. 158).
Scaglione became angry at this point, grabbing a beer bottle, hitting it on the table, and saying, “no, I am the one that shot Gierke. I stuck the gun up his nose and pulled the trigger.” (N.T. at 158-159 and 169-170). The girls left soon after.
Earlier that night Bernard [F]urr had a conversation with the defendant in the “Five Points Bar.” Furr had been there with a friend when he saw the defendant enter with Scaglione and a third man. Furr left the bar to take his friend home and then returned. When he re-entered the bar, Furr saw the defendant talking to a friend of Furr. The defendant then called Furr over to his table. Furr did not know who he was at the time, but went over to inquire what the defendant wanted. “I hear you’ve been looking for me,” the defendant told Furr. Furr told him that he did not know what he was talking about, and the defendant then said, “I am the one that killed your friend, Mr. Alford.” The defendant then proceeded to tell Furr of the killings and that they were killed because they owed fifty thousand dollars for drugs they had received. (N.T. 270). Furr had put the word on the street that he was looking for Alford’s and Gierke’s killers and was going to make them pay. (N.T. 277).
While Munchinski was serving time in the Fayette County Jail on these charges, he came in contact with Harold E. Thomas who was serving time on the charge of receiving stolen property. Munchinski told Harold Thomas that he, Scaglione, and Bowen went to Bear Rocks for the purpose of obtaining drugs, that while in Gierke’s house they found the drugs were there but not as much as they expected, and they knew there were more drugs in the house. Munchinski stated that Scaglione shot one guy and that he shot the other one as he was going out the back door. He also told Thomas that the driver of the car who took them to Bear Rocks was Richard Bowen. (T. 263-264).

(Slip Op., Adams, J., 6/30/87, pp. 6-10.)

On October 22, 1982 a complaint was filed against David Joseph Munchinski at number 755 of 1982, and fractions thereof, charging Munchinski, inter alia, with two counts of criminal homicide and criminal conspiracy with regard to the deaths of James Peter Alford and Raymond P. Gierke, which occurred on December 2, 1977.
Leon E. Scaglione, a co-defendant, ... was charged, inter alia, with two counts of criminal homicide and criminal conspiracy at number 792 of 1982, and fractions thereof, with regard to the deaths of James Peter Alford and Raymond P. Gierke, which occurred, as stated, on December 2, 1977.
The charges against Munchinski and Scaglione were consolidated for jury trial.
The case was called for trial on April 6, 1983. On April 12, 1983, by reason of the jury being unable to reach a verdict, the Court declared a mistrial.
Munchinski filed an appeal to the Superior Court alleging that the Court erred in refusing, inter alia, the motions of the defendant to quash the informations. The Superior Court refused the motion to quash, and remanded the case for trial.
The petition for allocatur was denied by the Pennsylvania Supreme Court.
This Court, upon petition by Munchinski and without objection by Scaglione, severed the cases.
The case of Scaglione was called for trial on August 4, 1986. At this time the Commonwealth agreed to dismiss the charge of conspiracy to commit criminal homicide. The Court, in a bench trial, found Scaglione guilty of murder in the first degree on two counts.
Munchinski’s case was called for trial on November 17, 1986 before a jury. The Commonwealth agreed to dismiss the charge- of conspiracy to commit criminal homicide and to proceed only on the homicide charges.
Following the conviction by the jury of murder in the first degree of James P. Alford at number 755 of 1982, murder in the second degree of James P. Alford at number 755 of 1982, murder in the first degree of Raymond P. Gierke at number 755V3 of 1982, and murder of the second degree of Raymond P. Gierke at number 755V8 of 1982, the defendant timely filed his motions for new trial and arrest of judgment^]

(Slip Op. at 1-3.)

While normally we deal with statements of questions in a seriatim fashion, this is not possible in this case because of the large number of questions presented and the mixing throughout of issues which should be considered together, in that they are overlapping and redundant.
SECTION I
Double Jeopardy
Those questions, as stated in appellant’s brief, are:
I. Was the second trial of the appellant held in violation of the rule against double jeopardy because of prosecutorial or judicial misconduct which occurred at the first trial, in that:
A. Prosecutorial misconduct based on the false representation by the attorney for the Commonwealth that two defense witnesses were in a federal witness protection program when he knew they were not.
B. Prosecutorial or judicial misconduct when the defendant was tried on four conspiracy charges that were knowingly and deliberately pressed beyond the statute of limitations, and of which no notice was afforded defendant prior to trial.
C. Is the appellant unfairly prejudiced from arguing this issue fully because the court has failed to make records available to him? []
II. Did the honorable trial court commit reversible error by refusing the request of the appellant for defense witness (use) immunity for defense witness, Leon E. Scaglione, after the district attorney of Fayette County, Pennsylvania, initially refused this request?
III. Did the district attorney of Fayette County, Pennsylvania commit prosecutorial misconduct in refusing to grant defense witness, Leon E. Scaglione, immunity for testimony to be offered on behalf of the appellant, David J. Munchinski, at his request?
IV. Whether the honorable trial court committed reversible error when it refused the request of the defendant to offer into evidence and have read to the jury, the pertinent portions of the trial transcript of the nonjury trial of said defense witness, Leon E. Scaglione, wherein he gave testimony which completely exculpated the appellant, David J. Munchinski?
V. Did the honorable trial court commit reversible error when it denied defendant’s pretrial motion for interlocutory appeal on the questions of defense witness immunity and use of the trial transcripts of Leon Scaglione?
VI. The appellant, David J. Munchinski, challenges the constitutionality of Pennsylvania Rule of Judicial Procedure 42 Pa. C.S.A., Section 5947 Immunity of Witnesses, in that the rule prohibits the trial court from granting statutory defense witness immunity without the consent of the attorney general of Pennsylvania or a district attorney. This statute is in direct violation of the defendant’s rights to a fair and impartial trial and his due process rights as is guaranteed by the United States Constitution and the Constitution of the Commonwealth of Pennsylvania.
VII. Did the honorable trial court commit reversible error when it failed to instruct defense witness, Leon E. Scaglione, that he no longer had fifth amendment protection against self-incrimination having already been convicted of the crime for which he would testify?
XXI. Should the convictions obtained against appellant be reversed and the sentences vacated, because said convictions were obtained in violation of the United States constitutional protection against double jeopardy, and applicable provisions of the Pennsylvania Constitution, due to the fact that in the instant record it is certain that appellant was tried upon two counts of criminal homicide and convicted of both first and second degree murder for each separate count; therefore, for each count charged, appellant was convicted of two crimes (a total of four crimes) arising from the alleged act; and was former defense counsel, Charles C. Gentile, ineffective for not properly objecting to, or adequately preserving this issue?

The eight issues listed above can properly be reduced to the following. The second trial resulted in reversible error because of prosecutorial and judicial misconduct during the second trial in failing to permit the co-defendant, Leon E. Scaglione, to testify on behalf of appellant, or permit Scaglione’s testimony from his own non-jury trial to be admitted as evidence to exculpate appellant. It also violated the rule against double jeopardy because of prosecutorial and judicial misconduct due to allegations by the prosecutor that two witnesses were in a federal witness protection program and judicial action which knowingly permitting the appellant to be tried on four conspiracy charges beyond the statute of limitations. Appellant also alleges the court failed to make records available to him.

The issues presented here in regard to double jeopardy were presented for the first time before this Court in an earlier appeal. Since those issues were neither part of the argument before the trial court nor presented in post-trial motions, they are waived.

In the May 31, 1985 memorandum by this Court, Commonwealth v. Munchinski, 345 Pa.Super. 620, 496 A.2d 853 (1985), we disposed of issues raised by appellant concerning double jeopardy, although not the same issues raised here. It is arguable that in raising that issue, but in not dealing with all the possible defenses available at that time to a retrial on double jeopardy grounds, appellant has waived them. The same rule applied in appellant’s earlier appeal was found in Commonwealth v. Clark, 287 Pa.Super. 380, 430 A.2d 655 (1981), which established that the test of whether judicial and prosecutorial conduct results in double jeopardy mandating retrial depends upon a finding of bad faith overreaching rather than mere prosecutorial error. None of the provisions stated in Clark, which could result in a bad faith finding, are present instantly. At best, appellant can point only to the hand-written notations on the Orders for both witnesses Cannon and Bevilacqua by Judge Franks that the witnesses were unavailable as the district attorney had learned they were in a witness protection program. While it is alleged these witnesses would be able to testify that Richard Bowen had a deal with the prosecutor to testify adversely to appellant, this is not sufficient to infer that the prosecutor would conspire to avoid their presence by lying to the court. In view of the fact Bowen was to testify and in fact did so, the same information could have been obtained from him on cross-examination in testing his credibility. The testimony of Cannon and Bevilacqua, if admissible, at best would have been cumulative. Appellant has no proof of deliberate overreaching and bad faith other than his suspicions. We find this issue to be without merit. No transcript of discussions on this issue has been discovered and the mere allegations of counsel cannot be a basis for a double jeopardy finding.

The next part of the questions raised by appellant has to do with judicial misconduct by the trial court in permitting conspiracy charges to be processed beyond the running of the statute of limitations for conspiracy.

- The Commonwealth denies these claims of error. The record shows that at the second trial, the two conspiracy to commit murder charges were withdrawn by the Commonwealth. In the absence of prejudice to appellant, since the first trial in which the charges were brought ended in a mistrial and upon appeal the same issue was raised in appellant’s double jeopardy claim and denied by this Court, the most that can be said was an error was committed, which subsequently was rectified at the second trial. Appellant has no basis upon which to raise that issue again at this time.

As to the issue raised concerning prosecutorial and judicial misconduct in failing to grant Scaglione immunity to testify on appellant’s behalf, or to admit Scaglione’s testimony from his bench trial to exculpate appellant, the trial court, in excellent fashion, dealt with these issues. The pertinent provision of Title 42, Judiciary and Judicial Procedure, 42 Pa.C.S. § 5947, Immunity of witnesses, prohibits the trial court from granting defense immunity without consent of the Attorney General of Pennsylvania or a district attorney. Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985); Commonwealth v. Bernstein, 357 Pa.Super. 13, 515 A.2d 54 (1986). The Attorney General was not contacted and the district attorney refused to grant immunity. The court, therefore, was correct in denying immunity. The district attorney refused to grant immunity because Scaglione had direct appeals and collateral appeals available to him and, therefore, any grant of immunity would prejudice the Commonwealth’s case against him. Johnson is properly distinguished from Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), by the trial court as the conditions applicable to Smith are not present here. Also, Johnson never held Smith is binding on Pennsylvania Courts. As in Johnson, there appears to be no deliberate attempt by the Commonwealth to disregard the factfinding process. The Commonwealth has a strong countervailing interest in the successful conclusion of Scaglione’s case on appeal, since he is a convicted co-defendant in appellant’s case. Thus, the appellant’s argument on the above issue is void of merit.

The trial court properly refused to admit the trial testimony of Scaglione into evidence during appellant’s trial. While such testimony is technically admissible under the unavailable witness rule, the unusual posture of this case was such that the Commonwealth never had an opportunity to cross-examine Scaglione at his trial and, therefore, the transcript does not meet the test of the statute. 42 Pa.C.S. § 5917; Commonwealth v. Taylor, 299 Pa.Super. 113, 121, 445 A.2d 174, 178 (1982). Scaglione’s case was severed from appellant’s at appellant’s request. Scaglione only presented an insanity defense and it was this issue alone on which the Commonwealth had the opportunity to cross-examine. Scaglione, in a partial plea, admitted his role in the murders, exculpated appellant and implicated another person who has not been investigated or charged. His testimony at best must be viewed with extreme suspicion and caution, in view of the other overwhelming evidence of appellant’s guilt.

Finally, appellant’s contest to the constitutionality of the Immunity Statute is deemed waived, as we are aware of no notice given to the Attorney General which is required by Pa.R.C.P. 235, wherein the Attorney General is named as a necessary party and the constitutionality of his power is contested. We must presume the constitutionality of a statute, and unless the statute is blatantly unconstitutional on its face, we must defer to the Supreme Court to determine constitutionality. Hughes v. Com., Dept. of Transp., 514 Pa. 300, 523 A.2d 747 (1987).

As to whether appellant could be convicted of first and second degree murder, his argument turns on whether the same act can support two charges. The right of the Commonwealth to charge both first and second degree murder depends upon whether the elements of both crimes exist. Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980). First degree murder is chargeable when a premeditated killing with malice is established. Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990). Second degree murder is chargeable when a homicide is committed in the course of certain enumerated felonies. 18 Pa.C.S. § 2502(b). While conspiracy charges were dismissed as the statute of limitations had run on the underlying charges, the commission of those acts, once the killing occurs, remains as a constituent part of the felony murder. Second degree murder has no statute of limitations and, therefore, was properly chargeable. The court could properly instruct the jury on both degrees of murder as elements supporting both existed and it is common practice to charge on all degrees of murder which might be supported by the acts upon which the charges are based. See generally, Pa. Suggested Standard Jury Instructions (Criminal) § 15.2501B. The jury may find guilt on all or none of the charges. It is then up to the court at sentencing to make a distinction or to merge the sentences to avoid excessive or conflicting sentences. Commonwealth v. Wienckowski, 371 Pa.Super. 153, 537 A.2d 866 (1988). This is precisely what the court did in sentencing appellant to a term of life in each first degree murder, one consecutive to the other, and setting no penalty for the two second degree murder charges. Appellant’s argument is specious in alleging only two charges should have been filed when in fact two parties participated in the murders, robberies and sodomy, each being chargeable with the acts of the others, not as conspirators but as co-actors who share equal responsibility for their criminal acts. See 18 Pa.C.S. § 306; Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978). We therefore find this claim without merit.

SECTION II

Admission of testimony and evidence

VIII. Whether the honorable trial court committed reversible error when it refused to permit defense witnesses, William Cole and Jon Chump to testify relative to a meeting that took place between themselves, the victims, and the defendant within the week prior to the date of the homicides?
IX. Did the honorable trial court commit reversible error when it refused to permit counsel for the appellant to question Commonwealth witnesses Debra Dahlmann and Lori Lexa concerning one Homer Stewart?
X. Did the honorable trial court commit reversible error when it refused to admit evidence which corroborated the testimony of Leon E. Scaglione given at his non-jury trial:
A. ) Photographs of the defendant and one Homer Stewart, the person named by the said Leon E. Scaglione, as the one who assisted him in the planning and commission of this crime.
B. ) The testimony of proposed defense witness, Diane Battistella, who would have testified that the said Homer Stewart, eight (8) months prior to the commission of the crime, threatened one of the victims.
C. ) The testimony of other defense witnesses and the defendant which would have established that the said Homer Stewart had a motive to kill the victims and of the similarity of appearance between himself and the appellant, David J. Munchinski?
XI. Whether the honorable trial court committed reversible error when it over-ruled defendant’s objection as to the relevance of the testimony of Trooper Robert Taylor, called as a rebuttal witness by the Commonwealth?
XII. Did the honorable trial court commit reversible error when it refused the request of the defendant to strike the testimony of the Commonwealth witness, Richard A. Bowen, after said Richard A. Bowen gave perjured testimony on behalf of the Commonwealth during the trial of this case?

Question VIII concerns an alleged conversation between Cole and the victims in a meeting arranged by appellant through Chump in which Cole informed the victims Homer Stewart offered him money and drugs to rip off Gierke and another man because they owed Stewart money. This was disallowed by the court as hearsay which fell within none of the exceptions to the rule against hearsay and was an attempt to corroborate Scaglione’s inadmissible testimony that Stewart was his accomplice. This alleged conversation occurred a week before the killings but would be used to rebut the eyewitness testimony of Bowen and the testimony of witnesses Dahlmann and Lexa of admissions by appellant and Scaglione made after the killings of their involvement. At best, the testimony would be immaterial as to the later admissions and inadmissible to support evidence which itself was inadmissible. As such, the trial court ruled correctly.

For the same reason, issue IX is without merit. Homer Stewart was never properly established as a possible suspect and to permit the jury to hear cross-examination concerning a person never identified during the trial or placed in issue as a possible suspect, would be to introduce an irrelevant consideration and simply serve to confuse the jury. The trial court properly ruled on this issue. Issue X is resolved in the same fashion as above in that photos of Stewart and witnesses to corroborate Scaglione’s inadmissible statements were themselves inadmissible. Issue XI alleges the court erred in overruling defendant’s objection to the relevance of the testimony of Trooper Taylor, who was called as a rebuttal witness by the Commonwealth. The court held the objection was waived because it was not on the record. Appellant contests the waiver and would have us find the issue preserved. He argues admission was improper as appellant had attempted to establish an alibi defense as to his whereabouts the night of the homicide, whereas Taylor’s testimony would establish his presence in the company of appellant the night before the killing. The record indicates that, at the prior trial, appellant stated he was caring for his sick dog from November 30th through December 3, 1977, and had not left Jhis dwelling (T.T., p. 375). Trooper Taylor’s testimony was used in rebuttal to establish that on December 1, 1977, 1:30 to 2:30 a.m., he saw appellant at a residence at Hitchdale, Pennsylvania, at least five miles from appellant’s dwelling (T.T. at 377). The admission of this rebuttal testimony, while not relevant as to the whereabouts of appellant at the time of the killings on December 2nd, was relevant to the total alibi proffered by appellant that he did not leave his dwelling prior and up to the time of the killings. Since the rebuttal was directed to the truth of the alibi testimony in toto, it was proper to admit it.

As to the alleged error committed by the trial court as to the admissibility of Bowen’s testimony (Issue XII), appellant has incorrectly stated the law as to perjured testimony. The trial court correctly held that admissions of prior perjury go to Bowen’s credibility and the weight of the evidence to be given the testimony by the jury and do not affect Bowen’s competency as a witness. Commonwealth v. Orlosky, 264 Pa.Super. 598, 401 A.2d 756 (1979); Commonwealth v. Billingsley, 160 Pa.Super. 140, 50 A.2d 703 (1947). 42 Pa.C.S. § 5912 provides that “[i]n a criminal proceeding, a person who has been convicted in a court of this Commonwealth of perjury ... shall not be a competent witness for any purpose____” (Emphasis added.) Bowen had never been convicted of perjury. Appellant failed to establish sociopathic behavior or perjury on the part of Bowen and the Commonwealth’s prior knowledge of his perjury. He admitted testifying differently about who went into a room to get a jewelry box (Scaglione at his trial—Munchinski in the present proceeding) but in admitting the perjury stated he did so to protect his children (T.T., pp. 250-252). The trial court properly held the testimony of Bowen was admissible and its credibility was a matter for the jury, as the trier of fact, to decide. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986). Proof that Bowen was a sociopath and thereby incompetent to testify was never established. The perjury committed by appellant was not of such a substantial nature that the court was required to strike it, as opposed to permitting the jury to determine the credibility of appellant. Variations of testimony by the same person from hearing to hearing notoriously occur, and a witness is more likely to be suspect if there are no variations, as one may suspect him of being coached or memorizing a script. If such variations were to be considered to render a party incompetent as opposed to effecting his credibility, few trials would be successfully concluded. Our reading of Mr. Bowen’s testimony does not reveal the psychopathology and chronic pattern of lying which would render him incompetent to testify. For these reasons, appellant’s claims are without merit.

SECTION III

Prosecutorial Misconduct

The next issues presented by appellant concern prosecutorial conduct and are stated as follows:

XIII. Did the district attorney of Fayette County, Pennsylvania, commit prosecutorial misconduct by calling a witness, Richard A. Bowen, knowing that the said witness was going to offer perjured testimony at the trial of this case?
XXVII. Did the prosecutor fail to disclose relevant information regarding the procurement of the testimony of Harold Eugene Thomas and has the Commonwealth systematically prevented the appellant and his present counsel from obtaining such information by interposing unconscionable delay?

As we indicated in the previous section, there was no error in presenting and hearing Richard Bowen’s testimony and appellant’s allegation in question XIII is totally without merit.

As to the failure of the Commonwealth to disclose relevant information regarding procurement of the testimony of Harold Thomas, the issue is waived as it was not raised in post-trial motions below. Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989). Thomas testified that he talked to appellant in jail and appellant admitted the homicides, implicating Scaglione and Bowen. He gave a statement to the police about the conversation with appellant in 1983 after he was released from jail on a bond. The statement was made one week before trial. The prosecutor denies any deal with Thomas, and Thomas, under cross-examination, denied any bargain (T.T., pp. 268-271). It was he who initiated the contact and not the police or prosecutor. He cannot be considered an agent of the Commonwealth and no tangible evidence has been provided to indicate a deal. We find no merit in appellant’s insinuation of a deal and no supporting evidence thereof.

SECTION IV

Judicial Procedural Error

XIV. Did the honorable trial court commit reversible error when it failed to grant the motion of the appellant to dismiss one count of criminal homicide, since the conspiracy charge against the appellant was dismissed prior to trial by reason of the expiration of the statute of limitations and, therefore, appellant would not be a co-conspirator as to the homicide charge to the co-defendant Leon E. Scaglione?
XV. Was it reversible error for the court to charge the jury on second degree murder when the appellant was statutorily not guilty of any underlying felony by reason of the statute of limitations?
XVI. Did the honorable trial court commit reversible error when it permitted the jury to consider charges of murder in the second degree when there was insufficient evidence to establish the elements of any other crimes required pursuant to the felony murder rule?
XVIII. Were the verdicts of guilty of both first degree murder and second degree murder inconsistent and therefore, against the law?
XXIV. Whether the court below committed reversible error by invading the sole province of the jury and thereby determining the specific degree of guilt, when such ascertainment of specific degree is the exclusive right and duty of the jury and the lower court had no authority to, in this manner, mold the jury’s verdict and thereby usurp authority to impose sentence upon appellant when the court had no subject matter jurisdiction to impose sentence upon alleged verdicts?

The issue in question XIV was misstated by appellant and when properly framed to provide for accomplice culpability, it is readily apparent that the killings resulting from a joint enterprise requiring that each be charged with the killing by the other. The trial court clearly and properly dealt with this issue in its Opinion at section IV. 18 Pa.C.S. § 306 Liability for conduct of another; complicity, states:

(a) General rule—A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
b) Conduct of another—A person is legally accountable for the conduct of another when:
(3) he is an accomplice of such other person in the commission of the offense.
c) Accomplice defined—A person is an accomplice of another person in the commission of an offense if:
(1) with intent of promoting or facilitating the commission of the offense ... (ii) aids or agrees or attempts to aid such other person in planning or committing it.

A principal and his accomplice share equal responsibility for their criminal acts, Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978), and a charge for accomplice liability is proper even though defendant is charged in the indictment or information only as a principal. Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979). The Commonwealth charged and tried appellant with the robberies and killings in concert with Scaglione, even though indicted only as a principal. There was no error in this procedure.

In question XV, appellant alleges the trial court erred in charging on second degree murder when he was not guilty of any underlying felony by reason of the statute of limitations. Again, appellant ignores the distinction between conspiracy which is governed by the statute of limitations, and murder, which is not. 42 Pa.C.S. § 5551 No limitation applicable. The constituent element of second degree murder is the killing of a person in the course of committing a felony. It is not necessary to find the appellant guilty of a felony before a finding of second degree murder. If that were the case, no second degree murder verdict could be entered without first charging and finding the party guilty of the underlying felony. What is required is that the actor be found guilty of a homicide in the progress of committing a felony with sufficient evidence to establish a felony was in process and the killing occurred. Whether or not the statute of limitations has run on the underlying felony is immaterial, so long as the essential elements of second degree murder are proven beyond a reasonable doubt.

Appellant alleges in question XVI that reversible error was committed by the court in charging second degree murder when insufficient evidence was presented to establish the underlying felony. This argument is ludicrous. The crime began as a robbery and sodomy rape and ended in a homicide. Without question, the evidence presented established the requisite felony.

The inconsistency in the verdict proposed by question XVIII, between first degree murder and second degree murder, is meaningless in that the evidence was sufficient to find both. The court properly disposed of this issue by imposing the judgment of sentence on the first degree murder verdicts and by imposing no further penalty for the second degree murders. When such a verdict is returned, the court properly imposes the sentence on the most serious charge, which, here, is first degree murder. No prejudice results therefrom. This disposition also disposes of issue XXIV, in which appellant alleges the court invoked the province of the jury in entering the sentence on first degree murder, with no penalty imposed on second degree murder.

SECTION V

Ineffectiveness of Counsel

The final section is a grouping of the various questions raised throughout alleging ineffective assistance of counsel. These issues were left for last because many of the claims of ineffectiveness were disposed of above in determining the validity, or lack thereof, of other issues.

In this regard we note that the standard for reviewing the effectiveness of counsel is well-established.

We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has forgone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). With these principles in mind, we turn to appellant’s numerous claims of ineffectiveness.

XVII. Was former defense counsel, Charles C. Gentile, ineffective in his representation of appellant, by not properly objecting to the jury’s verdict, or properly preserving and arguing whether the honorable trial court committed reversible error when it accepted jury verdicts which were contrary, or inconsistent to the court’s instructions, and therefore illegal?
XIX. Was former defense attorney Charles C. Gentile ineffective in his representation of appellant for failing to object to, or otherwise preserve the issue of whether the honorable sentencing court imposed illegal and unauthorized sentences of two consecutive life terms for two alleged convictions of first degree murder; i) when appellant was acquitted of the two first degree murders by virtue of convictions of two second degree murders; and ii) where the only elements found by the jury in the instant verdicts, beyond a reasonable doubt, amounted to two convictions for third degree murder?
XX. Was former defense counsel Charles C. Gentile ineffective in his representation of appellant by failing to object, or otherwise preserve the question of whether the jury completed its duty and rendered verdicts warranted by law, or were the verdicts which were rendered in this instance tantamount to the jury being undecided upon a verdict?
XXII. Was former defense counsel, Charles C. Gentile, ineffective in his representation for failing to object to, or otherwise preserve, the issue or whether the instant verdicts were a nullity based upon the two facts that appellant was convicted of four criminal homicides upon two informations; and that the verdicts of the jury nullified the elemental findings of one another?
XXIII. Was former defense counsel, Charles C. Gentile, ineffective in his representation of appellant by failing to object to, or otherwise preserve, the question of whether the honorable trial court committed reversible error when it accepted the jury’s verdicts of guilty of both first and second degree murder for each of the two counts of criminal homicide, without returning the jury for further deliberations to ascertain a specific degree of guilt, thereby depriving the appellant of his fundamental right of due process and his right to the possible doubt which at least one juror could have had upon a closer examination of the evidence while ascertaining specific degree?
XXV. Was former defense counsel, Charles C. Gentile, ineffective by his failure to request a mistrial, or postponement of sufficient length, when it became apparent during the course of trial that appellant was severely ill and unable to fairly follow proceedings against him or assist in his defense, because of the illness; and when, after being treated for such illness the appellant was under the influence of certain physician prescribed drugs, which affected appellant’s judgment?
XXVI. Was former defense counsel, Charles C. Gentile, ineffective by his failure to move for a mistrial after the court had ordered the district attorney to prosecute Richard A. Bowen for perjury?

Question XVII was answered in section IV, Judicial Procedural Error. The jury verdicts were both returnable, although sentence could only be imposed on one. Commonwealth v. Kozrad, 346 Pa.Super. 470, 499 A.2d 1096 (1985). Since the trial court properly disposed of any conflict in his sentence, counsel could not be found ineffective for failing to object.

Question XIX is also answered by section IV, in that the jury could, and did, find both first and second degree murder, although appellant could be sentenced on only one. Second degree murder is not a lesser included offense of first degree murder, as is third degree murder. Therefore, both findings were possible without conflict. However, for sentencing purposes, only one could be the focus for sentencing, that one being the higher degree. Since the court was correct in sentencing, counsel could not be ineffective.

Issue XX has been fully discussed and resolved above to the effect that the jury returned guilty verdicts on both degrees of murder, which were supported by the evidence. The jury could not be deemed undecided and counsel was not ineffective for failing to object.

Question XXII is partly redundant and partly nonsense. The jury could properly find four degrees of murder on two informations. The court could only sentence on two, the evidence supporting the sentence on the crime of the highest degree.

Issue XXIII is resolved by all of the above. The trial court was not required to return the case for further deliberation when both degrees of murder were sustainable on the evidence. Counsel was not ineffective in failing to request further deliberations. He could hope the trial court would elect the less serious charge.

As to question XXV, the illness of defendant apparently was not sufficient to continue the trial. In the event appellant was unable to attend, the court could continue without him. Counsel was not ineffective for refusing to take that chance.

Finally, issue XXVI does not present a question of ineffectiveness since a direction to the prosecutor by the court to prosecute Bowen for perjury was not material to his competency and the issue of his earlier perjured statement went only to his credibility. As such, a mistrial was not warranted.

Judgment of sentence affirmed.

      . "XXVIII. Did this honorable court unfairly limit the appellant to fifty pages of argument and thereby limit appellants [sic] ability to present full and complete arguments as required by the rules of appellate procedure in violation of the first, fifth and fourteenth amendments of the United States Constitution and the applicable portions of the Pennsylvania Constitution?” (Brief of appellant at p. 8.)

      . This Court recently considered another appeal by appellant in which we determined he was not entitled to additional copies of the court records and transcripts underlying the current appeal due to alleged difficulty in sharing the one court-provided copy with counsel. Commonwealth v. Munchinski, — Pa.Super. -, 581 A.2d 975 (1990) unpublished memorandum.

      . Under the statute in effect at the time of the commission of this crime, the statute of limitations, in pertinent part, read:
      18 Pa.C.S. § 108. Time Limitations
      (a) Murder.—A prosecution for murder of the first degree or of the second degree may be commenced at any time.
      As most recently amended in December of 1984, the statute currently reads as follows:
      § 5551. No limitation applicable
      A prosecution for the following offenses may be commenced at any time:
      (1) Murder.
      (2) Voluntary manslaughter.
      (3) Conspiracy to commit murder or solicitation to commit murder if a murder results from the conspiracy or solicitation.
      (4) Any felony alleged to have been perpetrated in connection with a murder of the first or second degree, as set forth in 18 Pa.C.S. § 2502(a) or (b) and (d) (relating to murder).
      The amendment makes more specific the application of the statute of limitations to murder and the underlying felonies but has no effect on the statute of limitations as to felony murder in this case.


author: MONTGOMERY, Judge: KELLY, Judge,

text:
    585 A.2d 485
    R. Floyd McCONNAUGHEY and Dorothy McConnaughey, His Wife, Appellants, v. BUILDING COMPONENTS, INC., a Corporation, and Inter-Lock Steel Company, a Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Filed Nov. 30, 1990.
    Reargument Denied Feb. 12, 1991.

      William J. Ober, Greensburg, for appellants.
    Louis C. Long, Pittsburgh, for Building Components, appellees.
    Before KELLY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellants, Mr. and Mrs. R. Floyd McConnaughey, instituted this negligence action as a result of the collapse of a barn on their property. This incident allegedly caused significant losses to livestock. Both of the defendant corporations filed motions for summary judgment. After consideration, the trial court entered an opinion and order, granting summary judgment in favor of the defendant Building Components, Inc. The motion for summary judgment of Inter-Lock Steel Company was denied. After the entry of the judgment in favor of Building Components, Inc. the plaintiffs instituted the instant appeal, which challenges the trial court’s grant of summary judgment in favor of Building Components, Inc.

The scope of review in this case is clear. A motion for summary judgment may properly be granted under Pa.R.C.P. 1035 if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986); Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983). We must examine the record in the light most favorable to the nonmoving party. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). Summary judgment is appropriate only in those cases which are clear and free from doubt, and we must accept as true all well-pleaded facts in the pleadings of the party against whom summary judgment has been granted, and must give that party the benefit of all reasonable inferences to be drawn. Bobb v. Kraybill, supra.

Briefly stated, read in a light most favorable to the plaintiff-appellants, the record indicates that in the latter part of 1970, the plaintiffs purchased preconstructed roof trusses from Building Components, Inc. Building Components, Inc. manufactured these trusses and maintained a supply of them for sale to the public. The trusses in issue were not manufactured to the order or specification of the plaintiffs. In the construction of the trusses, Building Components, Inc. used metal gusset plates, supplied by defendant, Inter-Lock Steel Company, to connect individual wooden segments at various stress points in the trusses. After the plaintiffs purchased the trusses, they caused them to be incorporated into a barn building which they constructed on their property. Building Components, Inc. was not involved in the planning, design or construction of the barn.

The unfortunate collapse of the plaintiffs’ barn occurred on January 20, 1986, well over 12 years after the trusses were purchased by the plaintiffs and made a part of the barn structure. It was the plaintiffs’ claim in this case that the proximate cause of the collapse of their barn was negligent manufacturing and defective construction of the roof trusses by Building Components, Inc. With respect to Inter-Lock Steel Company, the plaintiffs asserted that the metal gusset plates were defective as a result of being negligently manufactured.

The trial court granted summary judgment in favor of defendant, Building Components, Inc., based upon the determination that the statute of repose applicable to construction projects barred the action. That statute, the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10(63.1), effective June 27, 1978, 42 Pa.C.S.A. § 5536, provides:

(a) General rule.—Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
(b) Exceptions.—
(1) If any injury or wrongful death shall occur more than ten and within 12 years after completion of the improvement a civil action or proceeding within the scope of subsection (a) may be commenced within the time otherwise limited by this subchapter, but not later than 14 years after completion of construction of such improvement.
(2) The limitation prescribed by subsection (a) shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death for which it is proposed to commence an action or proceeding.
(c) No extension of limitations.—This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law.

The plaintiff-appellants have correctly stated in their brief that in order for this statute of repose to apply, the party moving for its protection must show: (1) what is supplied is an improvement to real estate; (2) more than 12 years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party was within that class which was protected by the statute. In its brief, and before our court in oral argument, the plaintiffs admitted that the trusses, which were incorporated into their barn, were an improvement to real estate. In that regard, their admission is proper under applicable law. See Mitchell v. United Elevator Company, Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981) and compare Ferricks v. Ryan Homes, Inc., 396 Pa.Super. 132, 578 A.2d 441 (1990). Further, it is evident that more than 12 years had passed between the time that the trusses were purchased and incorporated into the barn, and date when the accident occurred allegedly causing the losses in issue.

The plaintiffs, however, maintain that the record demonstrates that the activity of Building Components, Inc. was not within the protections of the statute. In that regard, they argue that the protection was only intended to extend to a person performing or furnishing design, planning, supervision or observation of construction, or the construction of any improvement to real property. They argue that Building Components, Inc. was not engaged in any such function. Rather, they reason that it was merely a manufacturer who made a component later incorporated into real estate, and, as such, enjoyed no protection under the statute of repose.

We do not agree. We conclude that Building Components, Inc. was a “person ... furnishing ... construction of any improvement to real property”, within the meaning of the applicable statute of repose. In Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 340 A.2d 491 (1975), our court addressed a claim that an almost identical statute of repose then in effect was intended to extend protection to a limited class of persons. In rejecting this approach, we stated:

The statute is not limited to persons performing professional or licensed services, and a court cannot supply such an omission to statutory language. Neither is the protected class identified by profession or occupation. The Pennsylvania statute identifies its class not by the status or occupation of its members but rather by the contribution or acts done in relation to the improvement to the real property. Thus the statute immunizes from liability after 12 years any person lawfully performing or furnishing such activities. The word any is generally used in the sense of all or every and its meaning is most comprehensive.

Id., 234 Pa.Superior Ct. at 490, 340 A.2d at 493 (citations omitted).

This broad interpretation of the statute was discussed in some detail in Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985), where our court found the statute of repose applicable to a defendant who manufactured and sold a skylight which was incorporated into a building. The plaintiff in the case had fallen through the skylight while working on the roof in which it was placed. He claimed the skylight was defectively designed and constructed. Our court rejected an argument by the plaintiff that the statute of repose should not shield mere manufacturers, who only design or construct real property improvements. In holding that the statute protected the defendant skylight manufacturer, our court declared that following the decision in Leach v. Philadelphia Savings Fund Society, supra, the statutory protection was judicially extended to include manufacturers who had designed, planned or constructed improvements to real property.

Further, in Catanzaro, our court rejected the plaintiffs contention that the statute should be read restrictively to have application only to a supplier who had to customize the product to the real estate and had to assist in its installation. In doing so, we pointed out that a similar argument was rejected in Mitchell v. United Elevator Company, Inc., supra. In Mitchell, the trial court determined that a manufacturer of an elevator was not protected by the statute of repose because construction of an elevator was “like supplying a ready made item that was merely incorporated into the building.” 290 Pa.Super. at 488, 434 A.2d at 1249. Such a narrow application of the act was denounced by our court, and it was pointed out that the fact that the basic design of the improvement may be identical in different buildings does not render it any less an improvement to real estate, to which the statute applies.

We recognize that in McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989), a majority of our Supreme Court indicated it had not ruled on the issue of whether the statute of repose applies to manufacturers whose products are incorporated into real estate by others as improvements. While two dissenting justices expressed the conclusion that the twelve year statute of repose does not apply to designers and manufacturers of products incorporated into the construction of improvements to real property, we are certainly not bound by that viewpoint, which did not enjoy the support of a majority of the court. Accordingly, we must rely upon the prior clear declarations by our court on this issue, and hold that Building Components, Inc., which constructed the roof trusses in question, was entitled to the protection of the applicable statute of repose. The trial court did not err in granting summary judgment in favor of Building Components, Inc., and against the plaintiff-appellants.

The judgment of the trial court is hereby affirmed.

KELLY, J., files a dissenting statement.

KELLY, Judge,

dissenting.

I respectfully dissent. The majority finds that under the applicable statute of repose, 42 Pa.C.S.A. § 5536, the trusses which were incorporated into appellant’s barn, constituted an “improvement to real estate.” I cannot agree.

As the majority suggests, the instant case turns on the more general question of whether the relevant statute is meant to include within the reach of its protection only builders or whether the legislature intended the defense to be enjoyed by suppliers as well. In the absence of definitive Supreme Court guidance on the appropriate extent such protection is intended to be afforded, see McCormick v. Columbus Conveyer Co., 522 Pa. 520, 525 n. 2, 564 A.2d 907, 910 n. 2 (1989), I am most persuaded by a recent panel of this Court which, in holding that a manufacturer of plywood was not entitled to the protection of the statute of repose, construed relevant Superior Court decisions as follows:

In Mitchell v. United Elevator Company, supra, the installation of an elevator system was being considered. The trial court ruled that the manufacturer could not avail itself of the bar against liability provided by the

statute since “it simply supplied and installed the necessary elements for the elevator system as part of the overall construction of the complex.” Id., 290 Pa.Superior Ct. 488, 434 A.2d at 1249. In reversing this decision, the superior court stated:

The lower court seems to be likening the building of an elevator system with all its myriad components, motors, cables, wiring and machinery to uncrating and plugging in a television set. The fact that the basic design of the elevator may be identical in different buildings does not render the elevator system any less an improvement to real estate. Id. (emphasis added).

Likewise in Catanzaro v. Wasco Products, Inc., this court recognized a skydome installed on the roof of a building as a fixture. A skydome, which was likened to a window by the court is a finished product which is uniquely suited to be included in the construction of a structure. A finished product such as window, skydome, or elevator is meant for use solely as a fixture, as an improvement to real estate. The individual component parts of these completed products do not have such a sole purpose. It is their purchaser who controls their use.

As we have stated, in McCormick v. Columbus Conveyor Co., the supreme court’s most recent decision concerning the Statute of Repose, the court was asked to consider the applicability of this provision to the designer and manufacturer of a coal delivery system. The court ruled that the statute was applicable since the defendant was “engaged in the design of an improvement to real property.” Id., 522 Pa. 526, 564 A.2d 911. In reaching this determination, the court remarked:

It is abundantly clear from the record that Columbus did more than supply a standard piece of equipment, indistinguishable from any other it mass-produced, that by chance became affixed to the University’s property. Using specification and a general layout provided by Rust Engineering, Columbus devised a coal delivery system to be integrated into the construction of the new power plant that was uniquely suited to that site.
This passage calls attention to the distinction between products which are produced for incorporation into a finished product and the finished product itself which is designed to be included as a fixture or improvement in real estate. The individuals who provide these two distinct services can often be labeled as suppliers and builders. The McCormick court noted that in Freezer Storage Inc. v. Armstrong Cork Co. [476 Pa. 270, 382 A.2d 715 (1978) ], it examined an argument that the statute distinguished between these two groups. Therein, the court accepted arguendo that the statute applied to builders but not suppliers and commented that such a distinction would be rationally based on real differences. The court noted that suppliers produce items in large quantities and can maintain quality control standards in the controlled environment of a factory. However, the only test available to a builder is one conducted over the years following construction. Thus, while the court did not decide whether suppliers could be entitled to the protection of the statute, it did provide sound rationale for the ruling we make today.
The manufacturer of plywood, a building material with many distinct purposes, only one of which is to be used as a component in the construction of an improvement on real estate, is not entitled to the protection of the statute of repose. Merely because the purchaser of this product incorporated it into the design of a structure, should provide no insulation to its manufacturer who must make its product safe for this and all other potential uses.

Ferricks v. Ryan Homes, 396 Pa.Super. 132, 139, 578 A.2d 441, 444-45 (1990). I find this more limited interpretation of the appropriate degree of protection compelling, and the holding of this case indistinguishable from the facts presented to this Court instantly.

Plywood, like the preconstructed trusses at issue herein, (which were neither custom built nor in any way modified for appellant’s purposes), is not a finished product (such as a window, skydome, or elevator), but rather merely a component part of a completed product, which itself has no sole purpose. More significantly, suppliers of plywood, like those who supply trusses, may produce their product in such quantities as to allow quality control standards to be employed in the controlled environment of the factory; in contrast, the builder may only test his completed product over the years following construction. It is for this reason, therefore, that the mere incorporation of plywood, or trusses, into the design of a structure should not in any way provide insulation to its manufacturer who must make the product safe for whatever structure the plywood or trusses are used in. To read the statute more broadly is, in my opinion, to allow protection beyond the legislature’s intent.

Accordingly, I would hold that the Statute of Repose should not be applied to protect appellees instantly, and would reverse the order of summary judgment. Hence, I dissent.


author: OLSZEWSKI, Judge:

text:
    585 A.2d 490
    John CINQUE, t/a Dom’s Seafood Take-Out Service, Appellant, v. Owusu Ansah ASARE and Theresa M. Chazin, Administratrix of the Estate of Richard J. Chazin, Deceased, and Theresa M. Chazin, Individually, and Phyllis Ann Neill, Appellees. Ronald BUJANOWSKI, Appellant, v. Owusu Ansah ASARE and Theresa M. Chazin, Administratrix of the Estate of Richard J. Chazin, Deceased, and Theresa M. Chazin, Individually, and Phyllis Ann Neill, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1990.
    Filed Dec. 17, 1990.
    Reargument Denied Feb. 8, 1991.

      Kenneth C. Citrino, Philadelphia, for appellants.
    James M. Marsh, Philadelphia, for Chazin, appellee.

      John J. Hart, Doylestown, for Neill, appellee.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   OLSZEWSKI, Judge:

John Cinque and Ronald Bujanowski appeal the trial court’s order granting summary judgment in favor of defendants-appellees, Phyllis Neill, Owusu Asare, and Theresa Chazin, on statute of limitations grounds. The applicable statute was two years (42 Pa.C.S.A. § 5524). The trial court found that Neill and her co-defendants were not properly served until May 1989, nearly four and one-half years after the accident from which this case arose. After careful review, we find that Neill waived any defects in service by answering the complaint in February 1987, and by failing to file preliminary objections. Accordingly, we must reverse the trial court’s decision as to appellee Neill. Similarly, we find that appellee Chazin also waived any defect in service by filing an appearance and a request for the production of documents with the court. Accordingly, we must also reverse as to appellee Chazin.

This case has a complicated procedural history. The problem facing us today would never have arisen if the parties had followed proper procedure from the outset. Instead, due to errors by both parties, we must wade through a procedural morass to find the result compelled by law and justice.

This case arises from a three-vehicle accident. In December 1986, a scant three days before the statute of limitations ran, Cinque and Bujanowski filed actions against the three drivers involved in the accident. Shortly thereafter, Cinque and Bujanowski’s attorney mailed a copy of the complaint to attorneys for the defendants. The complaint was never served upon the defendants, and the defendants never filed any acceptances of service. Nevertheless, Neill’s attorney entered an appearance on January 14, 1987, and filed an answer and new matter on February 3, 1987. Neill also filed a petition to consolidate Cinque’s and Bujanowski’s actions.

On January 14, 1987, counsel for appellee Chazin sent a letter to plaintiffs’ counsel requesting additional time in which to respond to the complaint, and making it clear that he was representing defendant Chazin. Furthermore, on January 21, 1987, counsel for Chazin filed an appearance with the court and a request for the production of documents.

On March 25, 1987, Neill’s attorney filed a “Petition on Behalf of Co-Defendant Phyllis Ann Neill to Amend Complaints,” which, contrary to its title, was a petition to amend Neill’s answer to include a statute of limitations defense. In this petition, Neill’s attorney stated that he had learned, for the first time, that the complaint had not been served. The trial court never disposed of this petition.

At some time in 1989, Cinque and Bujanowski attempted to serve the defendants by mail again. Neill’s co-defendants filed preliminary -objections, claiming that the complaint had never been served. The trial court sustained the objections on May 3, 1989, and granted the plaintiffs leave to re-file and serve the complaint. An amended complaint was filed and served upon all the defendants, including Neill.

Neill then filed a motion for summary judgment on statute of limitations grounds, claiming that the only proper service occurred four and one-half years after the accident and two and one-half years after the filing of the complaint. The trial court granted the motion for summary judgment. This appeal followed.

The trial court correctly found that no proper service occurred in this case until 1989; however, the trial court erred in granting summary judgment for Neill because Neill waived any defects in service of process. Neill filed an answer to the complaint and other documents without filing timely preliminary objections to the manner of service. The trial court also erred in granting summary judgment for Chazin, since Chazin had filed an appearance and request for documents. Thus, in our judgment, counsel for Chazin had also taken affirmative action to defend the case. No objection to service was made until two years later. Indeed, our Supreme Court, in Peterson v. Philadelphia Suburban, 435 Pa. 232, 255 A.2d 577 (1969), has held that one can waive service of process by various means and become a party to a suit by filing an appearance.

Defects in service of process must be raised in preliminary objections. Cf. Martin v. Gerner, 332 Pa.Super. 507, 514, 481 A.2d 903, 907 (1984); Hoover v. Bucks County Tax Claim Bureau, 44 Pa.Cmwlth. 529, 530, 405 A.2d 562, 563 (1979). By filing an answer to the complaint, Neill waived all matters that must be addressed in preliminary objections, including the defect in service. Although Chazin did file preliminary objections, they came too late to support a defect theory.

Neill’s March, 1987 petition to amend does not alter our finding of waiver. Defects in service cannot be attacked by asserting the statute of limitations, but must be addressed in preliminary objections; accordingly, this petition did not preserve the issue nor did it revoke the waiver of defects.

We note in passing that Neill and Chazin have not suffered any prejudice as a result of this defective service. Neill and Chazin were notified of the suit against them and their attorney had a copy of the complaint. It appears that the case was proceeding routinely until this motion was filed.

Given our finding that the defects in the initial service were waived, we must hold that the complaint against Neill and Chazin was not barred by the statute of limitations. Consequently, we must reverse the order of the trial court and remand this case for trial on the merits.

Order reversed as to appellees Chazin and Neill. Case remanded. Order affirmed as to appellee Asare. Jurisdiction relinquished.