author: HESTER, Judge:

text:
    590 A.2d 1286
    Betty Jane STEINFURTH and Robert E. Steinfurth, her husband, Appellants, v. John V. LAMANNA, M.D. and Proserpi-Moser Plastic Surgery Clinic.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed May 14, 1991.

      Alan Schwartz, Philadelphia, for appellants.
    Christopher A. Stump, Lancaster, for appellees.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the March 9, 1990 order granting summary judgment to appellees, Dr. John V. LaManna and Proserpi-Moser Plastic Surgery Clinic. Summary judgment was premised upon a sanction order precluding appellants, Betty Jane and Robert Steinfurth, from introducing expert testimony on the issue of Dr. LaManna’s malpractice. Since we consider the sanction order inappropriate under current authority, we reverse.

Appellants instituted this action on September 22, 1986, alleging that Dr. LaManna negligently treated Mrs. Steinfurth. In 1982, Mrs. Steinfurth underwent a stomach stapling procedure in Florida to lose weight. Following this surgery, she developed a severe infection at the site of the incision. Although Mrs. Steinfurth eventually lost weight, she developed excess stomach skin and contacted Dr. La-Manna to correct the problem. At her first appointment with the doctor, she completed a questionnaire containing information about the 1982 post-operative infection. She also orally informed the doctor about it.

On October 1, 1984, Dr. LaManna performed an abdominoplasty at Reading Hospital and Medical Center. Following surgery, Mrs. Steinfurth developed an elevated temperature which continued to rise over the course of the next several days. Despite this fact, the wound was not examined until October 6, 1984, following Mr. Steinfurth’s insistent demands, when the existence of a severe infection was discovered. She was administered antibiotics that day for the first time.

Due to the severity of the infection, Mrs. Steinfurth was incapacitated for several months, underwent an abdominoplasty revision, and has severe stomach scarring from destroyed stomach tissue. During a post-operative visit with Mrs. Steinfurth, Dr. LaManna admitted that his post-operative care was deficient due to his failure to review her medical history revealing the severe infection from the 1982 operation.

On November 6, 1986, appellees promulgated written interrogatories which included a request that appellants identify their expert witness. Following objection to the inclusion of that request, appellees served a second set of expert interrogatories on May 5, 1987. On December 8, 1987, appellants responded that they had not retained an expert as yet. Then, in July, 1987, appellants procured appellees’ consent to wait until after Dr. LaManna’s deposition for answers to the expert witness interrogatories.

Due to scheduling problems, the doctor’s deposition was not taken until August, 1988. Since Dr. LaManna’s deposition revealed that his partner also rendered post-operative treatment to Mrs. Steinfurth, appellants arranged to depose the partner on January 10, 1989. On February 22, 1989, appellants filed a motion for sanctions based on appellees’ failure to identify their expert. In response, appellants agreed to provide the report within sixty days of April 3, 1989, or June 2, 1989. This agreement was approved by the trial court.

Appellants experienced difficulty obtaining an expert in infectious diseases but eventually retained a New Jersey physician, Dr. Jonathan R. Spicehandler, who received all relevant materials prior to the June 2, 1989 deadline. He, however, was out of the country until early June. Dr. Spicehandler’s report was forwarded to appellees on June 28, 1989.

In the meantime, on June 8, 1989, appellees filed a second motion for sanctions, and the court scheduled argument on this motion for July 16, 1989. On June 19, 1989, appellants’ counsel had abdominal surgery and did not return to work until July 19, 1989, three days following the argument. When the expert report was sent on June 28, 1989, counsel for appellants requested confirmation that appellees would not proceed with the sanction motion since the report had been supplied. Appellees did not respond to this request. Appellants’ counsel, assuming that appellees did not intend to pursue the sanction request, did not ask anyone to appear at the argument on the motion during his absence from the office. Appellees concede that at oral argument they did not inform the court that they had received the expert report.

On August 2, 1989, the court issued an order precluding appellants from introducing expert testimony at trial. Appellants filed a motion for reconsideration on August 22, 1989, but the trial judge retired prior to ruling on the motion to reconsider. The motion was denied on January 16, 1990, by a different trial judge. Appellees subsequently filed a successful motion for summary judgment based on the preclusionary order. This appeal followed.

Rule 4019(a) of the Pennsylvania Rules of Civil Procedure authorizes the imposition of sanctions for failure to comply with discovery orders. However, when a discovery sanction is imposed, the sanction must be appropriate when compared to the violation of the discovery rules. Pride Contracting, Inc. v. Biehn Construction, Inc., 381 Pa.Super. 155, 553 A.2d 82 (1989). Presently, the sanction is tantamount to dismissal of the action since it resulted in summary judgment being granted based on appellants’ inability to present expert testimony and thereby to establish that Dr. LaManna’s treatment fell below the applicable standard of care. Accordingly, we strictly scrutinize the appropriateness of the sanction as it produces the harshest result possible and should be imposed only in extreme circumstances. Id.

In Pride, we discussed the factors which must be considered when a discovery sanction is imposed. We first examine the party’s failure in light of the prejudice caused to the opposing party and whether the prejudice can be cured. See also Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 478 A.2d 889 (1984). A second factor to be examined in reviewing a sanction is the defaulting party’s willfulness or bad faith in failing to comply with the discovery order, i.e., the merits of their excuse. Third, we consider the number of discovery violations. Repeated discovery abuses are disapproved. Finally, as noted above, the importance of the precluded evidence in light of the failure must be considered. See Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), where the Supreme Court held that in determining whether to preclude an expert’s testimony at trial when that expert was not identified in interrogatories, the trial court must examine: 1) whether the non-offending party was prejudiced; 2) the merit of the offending party’s excuse for not identifying the expert; and 3) the importance of the excluded testimony.

In the present case, all factors militate against the sanction imposed. First, we note that appellants did not engage in “repeated” failures to comply with discovery orders, as contended by appellees. Appellees promulgated interrogatories, and appellants responded that they had not yet retained an expert and would provide a report when an expert was retained. Then, appellees agreed to wait until Dr. LaManna was deposed to renew their request for an expert report. After the doctor’s deposition, appellees filed their first sanction request. The consent order resulting from this request was the first and only order violated, by twenty days, by appellants. Accordingly, there are no repeated discovery “abuses” at issue in this case.

Second, there is no showing of willfulness or bad faith. Once Dr. LaManna and his partner were deposed, appellants made efforts to obtain an expert witness. They, in fact, supplied the report within three weeks of when the discovery order required the report. This delay was caused, in part, by their doctor’s schedule and not due to disregard of their responsibility to supply the report. Thus, the record establishes appellants’ good faith efforts and substantial compliance with the trial court’s discovery order. See Shehady v. Pittsburgh Post-Gazette, 307 Pa.Super. 247, 453 A.2d 18 (1982) (order dismissing complaint as discovery sanction reversed since willfulness of violation was not considered and willfulness was not present when party complied substantially with discovery order). Compare McSloy v. Jeanes Hospital, 376 Pa.Super. 595, 546 A.2d 684 (1988) (failure to comply with order was unexplained).

Moreover, we find no resulting prejudice to appellees. They allege that they were prejudiced by “having to operate under cloud of this lawsuit for a prolonged period of time without being able to prepare an appropriate defense.” Appellees’ brief at 8. However, trial in this matter had not been scheduled. Compare Dion v. Graduate Hospital of University of Pennsylvania, 360 Pa.Super. 416, 520 A.2d 876 (1987) (appellant failed without explanation to comply with order requiring him to provide expert reports then two weeks prior to trial and on the first day of trial, respectively, submitted the name of an expert who he proposed to have testify as a witness). In this case, appellees still had time to review the report, depose Dr. Spicehandler, and obtain another expert to refute Dr. Spicehandler’s opinions. Further, appellees agreed to wait until Dr. LaManna was deposed thereby consenting to operating under cloud of this lawsuit for all but ten months of the time that they did not have the expert report.

Indeed, appellees’ attempt at proving prejudice establishes that none did exist. They posit that due to delay between institution of the action and the preclusionary order, “the risks that witnesses or documents relevant to Dr. LaManna’s defense had or would become unavailable was increasing.” Appellees’ brief at 17. This indicates that witnesses or documents were not lost. Further, Dr. La-Manna was aware that appellants’ case was premised upon his and his partner’s failure to monitor and treat Mrs. Steinfurth’s post-operative infection even though her medical history indicated that she was at risk for severe infection at the incision site.

Finally, we conclude that the sanction was disproportionate to the default at issue, which was an untimely report. By the time the motion for compliance was filed, appellants had retained an expert, he had the appropriate documents, and a report was forthcoming. At the time the sanction request was argued and granted, appellees had the expert report in their possession. An order eventually resulting in the dismissal of the case was too harsh a remedy for the default at issue.

Appellees rely heavily upon Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986), but we believe this reliance is misplaced. There, an expert never was located, no explanation as to why an expert was not located was offered, and the defaulting party failed to indicate what efforts were made to locate an expert. In the present case, an expert was located and a report was forwarded.

Finally, we do not consider appellants’ failure to appear at the July 16, 1989 argument dispositive of this matter. Counsel was recovering from surgery and had supplied the expert report. Although counsel should have been more diligent in discovering whether appellants intended to pursue the preclusion sanction, counsel also had the right to expect appellees’ counsel to inform the trial court that the expert report had been received. Appellants’ failure to appear must be weighed against appellees’ failure to reveal this important consideration to the court. The physical condition of appellants’ counsel also cannot be ignored. He still had not returned to work from his surgical procedure when the argument occurred. On appeal, an issue is waived only if not presented to the trial court. Appellants presented the arguments raised in this appeal to the trial court in their motion for reconsideration of the sanction order. We refuse to find the issues waived.

In light of the foregoing, the August 2, 1990 order precluding appellants from introducing expert testimony is reversed, the March 9, 1990 summary judgment order is reversed, and the matter is remanded. Jurisdiction relinquished.

      . Appellees suggest in their argument that these factors do not have to be considered because this sanction was entered under Pa.R.Civ.P. 4019. Appellees’ brief at 15. We are puzzled by this assertion and reject it. Pride, for example, involves a sanction entered under Rule 4019, and we applied these four factors in determining whether the sanction was appropriate.


source: Caselaw Access Project

author: HOFFMAN, Judge.

license: Public Domain

text:
    590 A.2d 1290
    Sherri OSTROWSKI v. John Scott PETHICK, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued March 5, 1991.
    Filed May 14, 1991.

      Donna M. Devita, Scranton, for appellant.
    Sylvia H. Hahn, Scranton, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge.

Appellant John Scott Pethick appeals from the May 11, 1990 order denying his petition to strike an April 7, 1989 support order. Appellant also appeals from the June 27, 1990 order denying his motion for post-trial relief. Appellant contends that the court erred in denying his petition to strike because the underlying support order was entered in violation of his rights under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 501 et seq. For the reasons set forth below, we quash the appeal from the June 27, 1990 order, and we reverse the May 11, 1990 order denying appellant’s petition to strike the support order.

In July 1984, appellee Sherri Ostrowski filed a complaint for child support against appellant John Scott Pethick, alleging that he was the father of her child (hereinafter “J.M.”), born out of wedlock on April 8, 1984. Thereafter, a conference was held before a domestic relations officer, wherein appellant denied paternity of the child. Blood tests were scheduled but not completed because appellant had moved to California. The action was eventually dismissed. Subsequently, in the spring of 1985, appellant, who was serving in the United States Navy, received notification from the Lackawanna County Domestic Relations Office concerning the paternity and support of J.M. Pursuant to that notification, appellant arranged to have his Basic Allowance for Quarters (BAQ) allotment sent to appellee and to have medical insurance provided for J.M. through the Navy. Appellant denied that these activities were done on a voluntary basis; he testified that they were done in response to orders from the Navy. Appellee received BAQ allotment checks until 1988, when, for reasons that are unclear, the payments ceased.

On October 13, 1988, appellee filed a second complaint for child support naming appellant as the father of J.M. At this time, appellant was serving on the USS Farragut, which was deployed in the Mediterranean Sea. Nevertheless, despite the fact that appellant had neither appeared in court nor been represented by counsel, a temporary order of support was entered on April 7, 1989 directing appellant to pay $327.00 per month for the support of J.M. On October 17, 1989, appellant filed a petition to strike off the order of April 7, 1989. A hearing was held on this petition on January 10, 1990. On May 11, 1990, the court denied appellant’s petition because it found, inter alia, that appellant failed to demonstrate a meritorious defense. See Trial Court Opinion, September 25, 1990. On May 21, 1990, appellant filed post-trial motions. On June 8, 1990, appellant filed an appeal from the May 11, 1990 order. Thereafter, on June 27, 1990, the court denied appellant’s motion for post-trial relief, and, on July 25, appellant appealed from the June 27 order. The appeals were consolidated by order of this Court dated October 19, 1990.

As a preliminary matter, we note that the appeal from the June 27, 1990 order is improper. A trial court’s refusal to strike a judgment constitutes a final, appealable order. See, e.g., Strickler v. United Elevator Co., 257 Pa.Super. 542, 550, 391 A.2d 614, 618 (1978). Thus, there is no need to file post-trial motions after such an order, and an appeal cannot lie from the denial of such motions. Moreover, appellant filed his appeal from the May 11, 1990 order on June 8, 1990, which was within the thirty-day period established by Pa.R.A.P. 903, and the pendency of this appeal deprived the court of jurisdiction to act on the post-trial motion. See Pa.R.A.P. 1701(a). Thus, the court’s denial of appellant’s motion for post-trial relief was a nullity, see Kaiser v. 191 Presidential Corp., 308 Pa.Super. 301, 454 A.2d 141 (1982), and the appeal from this denial is improper. Accordingly, we quash the appeal from the June 27, 1990 order. Our quashal of this appeal in no way affects appellant’s substantive rights, however, as the sole claim, properly presented in the appeal from the May 11, 1990 order, concerns the propriety of the denial of the motion to strike.

The central issue presented on appeal is whether the court below erred in denying appellant’s petition to strike off the April 7, 1989 support order when that order was entered in his absence and without legal representation on his behalf, in violation of his rights under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 501 et seq. (hereinafter “Soldiers’ and Sailors’ Act”). We begin with our standard of review. A trial court’s denial of a petition to strike will not be disturbed absent an abuse of discretion. See Sklar v. Harleysville Ins. Co., 526 Pa. 617, 587 A.2d 1386 (1991); see also Allen v. Allen, 30 Cal.2d 433, 182 P.2d 551 (1947) (trial court abused its discretion in refusing to permit serviceman to defend support action); In re Larson, 81 Cal.App.2d 258, 183 P.2d 688 (1947) (trial court abused its discretion in refusing to permit serviceman to defend action to change daughter’s name), disapproved of on other grounds, In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal.Rptr. 918, 620 P.2d 579 (1980).

With regard to appellant’s specific claim, we note that, to set aside a judgment taken against him while he was in the military, he must show that (1) he was prejudiced by reason of his military service, and (2) he had a meritorious defense to the underlying action. See 50 U.S.C.App. § 520(1)—(4); see also Krumme v. Krumme, 6 Kan.App.2d 939, 636 P.2d 814 (1981); 35 A.L.R.Fed. 649. Section 200 of the Soldiers’ and Sailors’ Act provides, in part:

(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application made such appointment.
* * * »{< # *
(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him____
(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to °the action or some part thereof.

Id. The Act applies to all proceedings in the courts of the several states. Id. § 512; see also Bruder v. Carlin, 402 Pa.Super. 152, 158 n. 3, 586 A.2d 441, 444 n. 3 (1991). Judgments entered in violation of this section are merely voidable and not void. Thus, a judgment will remain valid until properly attacked by a serviceman pursuant to § 520, subsection (4). See generally Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943). One of the purposes of § 520 is to prevent default judgments from being entered against persons in the military in circumstances where they might be unable to appear and defend themselves. See, e.g., U.S. v. Kaufman, 453 F.2d 306 (C.A.N.Y.1971).

In the instant case, it is undisputed that appellant was serving in the United States Navy on a ship which was deployed in the Mediterranean at the time the April 7, 1989 temporary support order was entered. See N.T. January 10, 1990, at 54. Appellee filed no affidavit showing that appellant was not in the military service. See 50 U.S.C.App. § 520(1). Appellant, however, testified that, in February of 1989, he received a petition for child support and voluntary acknowledgment of paternity from the domestic relations office. N.T. January 10, 1990, at 54. Appellant testified further that, in response to this petition, the Navy informed the court that appellant was aboard the USS Farragut. Id. at 55. In addition, an assistant director of the domestic relations office testified that he had received notice from the Navy that appellant was aboard the USS Farragut. Id. at 20-22. Nevertheless, the trial court did not appoint counsel to represent appellant in the proceeding for support of J.M., and the order was entered without appellant appearing either in person or through counsel. See 50 U.S.C.App. § 520(3); see also Chenausky v. Chenausky, 128 N.H. 116, 509 A.2d 156 (1986) (subsection (3) of § 520 of Soldiers’ and Sailors’ Act authorizes court to appoint attorney to represent party who does not appear personally or by attorney in situations not covered by subsection (1)). Thus, it is apparent that appellant was denied the opportunity to make a defense to the support/paternity claim because he was in the military. Accordingly, because appellant was prejudiced by reason of his military service, the support order of April 7, 1989 is voidable, see Boone v. Lightner, supra, provided that appellant has a meritorious or legal defense to the support action. See 50 U.S.C.App. § 520(4).

On this point, appellant contends that he is not J.M.’s father, and therefore he should not be obligated to make support payments. Specifically, appellant argues that his consistent denial of paternity, the fact that the child was born out of wedlock, and the fact that appellant was not listed as the father on the original birth certificate constitute a valid defense to this action. We agree. Appellee, herself, admitted that appellant repeatedly has denied paternity of J.M. See N.T. January 10, 1990, at 4, 46. Although appellant admits to having engaged in sexual relations with appellee while the two were dating in high school, he testified that appellee had also been sexually involved with other men at that time. Id. at 42-45. Furthermore, blood tests were never performed in order to establish paternity. In addition, appellant has never treated J.M. as his child. For example, he has never sent the child gifts or cards, and, although he has visited appellee on occasion, he has never made a trip just to visit the child. Id. at 60-61. Finally, appellant asserts that his actions of obtaining medical insurance for the child and placing the child on his BAQ allotment were not voluntary, but were performed due to his belief that he was acting upon orders from the Navy. Id. at 59-60. Based on the above allegations, there is a serious question as to whether appellant, in fact, is the father of J.M. We are aware, of course, that, in any subsequent action on this matter, the evidence may demonstrate that appellant is J.M.’s father. However, for purposes of this appeal, we are satisfied that appellant has a meritorious defense to the support/paternity action.

Appellee, on the other hand, contends that appellant is equitably estopped from denying paternity of J.M. because he held himself out to be the child’s father. Under the doctrine of equitable estoppel, if the putative father has indicated by his conduct that the child is his own, he is estopped from denying paternity. See Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987). Here, the only fact weighing in favor of a finding of equitable estoppel was appellant’s action in placing J.M. on his Basic Allowance for Quarters (BAQ) allotment and arranging for medical insurance for the child through the Navy. See N.T. January 10, 1990, at 51-52. As we have noted above, however, appellant explained that he was required by the Navy to do these acts. Id. at 52. Every other factor—i.e., appellee’s own testimony that appellant has consistently denied paternity, the fact that appellant has never sent the child a card or a gift, that all of appellant’s visits to appellee and her child were for the purpose of seeing appellee, and, finally, that appellant has never lived with appellee and J.M. and was never married to appellee, id. at 60-61—indicates that appellant has not held himself out to be J.M.’s father. Accordingly, we find that appellant is not equitably estopped from denying paternity of J.M.

In summary, we find that appellant was prejudiced in presenting his defense to the support/paternity action because of his military service, and that he has a meritorious defense to that action. Thus, we must conclude that the court below abused its discretion in denying his motion to have the support order stricken. Accordingly, we reverse the order denying appellant’s petition to strike the order of April 7, 1989. See Chenausky v. Chenausky, supra, (default order for child support against serviceman vacated under authority of Soldiers’ and Sailors’ Act because serviceman could not attend hearing due to military service); Allen v. Allen, supra (order denying defendant’s motion to vacate support order reversed under authority of Soldiers’ and Sailors' Act where defendant could not attend support hearing due to military service and court did not appoint attorney to represent him); In re Larson, supra (order denying appellant’s motion to vacate decree changing daughter’s name reversed under authority of Soldiers’ and Sailors’ Act where appellant prejudiced in making defense due to military service).

For the foregoing reasons, we quash the appeal from the June 27, 1990 order, and we reverse the order of May 11, 1990.

Appeal from order of June 27, 1990 is quashed. Order of May 11, 1990 is reversed. Jurisdiction is relinquished.

      . Specifically, appellant filed a "PETITION TO STRIKE OFF COURT ORDER DATED APRIL 7, 1989 AND TO DIRECT THAT THE PARTIES SUBMIT TO BLOOD TESTING FOR THE ESTABLISHMENT OF PATERNITY.” See R.R. at 128a.


author: KELLY, Judge.

text:
    590 A.2d 1295
    TRANS CANADA CREDIT CORPORATION LTD., Appellee, v. Richard KOSACK d/b/a Family Motors, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 17, 1990.
    Filed May 14, 1991.

      Robert M. Barrett, Pittsburgh, for appellant.
    Gregory M. Devine, Pittsburgh, for appellee.
    Before CAVANAUGH, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge.

In this opinion, we are called upon to determine whether the plaintiff-appellee’s security interest in an automobile which was perfected in Canada remained superior to that of defendant-appellant who subsequently purchased and resold the automobile without notice of the foriegn security interest. We find that the foriegn security interest is valid and superior over the interests of the defendant-appellant pursuant to 75 Pa.C.S.A. § 1132(c)(2)(ii).

The facts have been succintly set forth by the trial court as follows.

The Plaintiff, a Canadian Corporation, lent money to DiCiceo and secured its interest in the loan proceeds with a chattel mortgage. By the terms of the chattel mortgage, the Plaintiff could take immediate possession of the vehicle upon either DiCicco’s removal of the vehicle from Canada or DiCicco’s sale or transfer of vehicle. DiCicco later removed the vehicle from Canada and obtained a Pennsylvania Certificate of Title on or about April 14, 1987[,] which did not have an endorsement indicating Plaintiff’s lien as an encumbrance on the vehicle. The title certificate in Pennsylvania did, however, bear a notation indicating that the vehicle was an “out of state” vehicle.
On May 16, 1987, DiCicco sold the secured vehicle to the Defendant, a Pennsylvania automobile broker and dealer for over forty years. Kosak subsequently resold the vehicle at an interstate auto auction.
* * * * *
Not until January of 1988 did Plaintiff make application in Pennsylvania pursuant to 75 Pa.C.S.A. 1132(c)(2)(ii) to perfect its security interest. This allows a security interest to be perfected in the Commonwealth of Pennsylvania before or after the expiration of a four month period within which an out-of-state lien might otherwise be perfected under the laws of the jurisdiction where the motor vehicle was located when the secured interest attached. Thus, Plaintiff styles this filing in January of 1988 a “re-perfection” of the security interest.

Tr.Ct.Op. at 2-3.

Trans Canada Credit Corporation, Ltd., plaintiff-appellee, after several demands made to Richard Kosak d/b/a Family Motors, defendant-appellant, which were refused, filed the instant action demanding $4875.00, the uncontested fair market value of the automobile at the time defendant-appellant re-sold the automobile at an auto auction. A non-jury trial resulted in a verdict in favor of defendant-appellant. Upon consideration of post-trial motions, the trial court granted judgment non obstante veredicto in favor of plaintiff-appellee.

In this timely appeal, defendant-appellant raises the following two issues for our consideration.

I. DID THE APPELLEE HAVE A PERFECTED SECURITY INTEREST WITHINT [sic] THE MEANING OF 75 PA.C.S. SECTION 1132(C)(2)(ii) AT THE TIME THE VEHICLE IN QUESTION WAS SOLD BY THE APPELLANT?
II. DID THE TRIAL COURT ERROR [sic] IN GRANTING A JUDGMENT NOT WITHSTANDING THE VERDICT?

Defendant-appellant’s Brief at 3. After a careful review of the applicable authorities, the parties’ briefs, the record and the well-reasoned opinion of the Honorable Bernard S. McGowan, we affirm the first issue on the basis of the trial court opinion as set forth below.

Plaintiff’s position is that 75 Pa.C.S.A. 1132(c)(2)(ii) in literal terms provides:
(ii) If the name of the lienholder is not shown on an existing certificate of title issued by that jurisdiction, the security interest continues perfected in this Commonwealth for four months after a first certificate of title of the vehicle is issued in this Commonwealth, and, thereafter if, within the four-month period, it is perfected in this Commonwealth. The security interest may álso be perfected in this Commonwealth after the expiration of the four-month period in which case perfection dates from the time of perfection in this Commonwealth.[ ]
Plaintiff argues that where an out-of-state lien is not shown on the existing certificate of title, a security interest continues perfected in the Commonwealth for four months after a first certificate of title of the vehicle is issued in the Commonwealth regardless of whether the security. interest holder applies for its perfection before or after the expiration of the four months. The Defendant argues that Plaintiff, not having perfected it in four months, can only have it perfected from the time of actual application.
The Canadian title proffered to the Commonwealth for retitling indisputably did not note the encumbrance of Plaintiff’s interest from Canada.
However, as Plaintiff points out, there was a notation on the Pennsylvania title which Defendant acknowledged to be an indication through the letter code “F” that the Pennsylvania title was derived from a prior out-of-state title which should have placed Defendant on inquiry notice. Defendant was a dealer in automobiles for some forty years and was not unsophisticated in the matter of auto titles and security interests.
The plain language of the statute gives an absolute and unconditional four-month period within which an out-of-state security interest, if the same were perfected under the law of the jurisdiction where the vehicle was located when the security interest attached, continues perfected in the Commonwealth of Pennsylvania for four months following a Pennsylvania issuance of title.
By reason of the foregoing recited dates, it is clear that Trans Canada’s security interest was perfected during the period of time that DiCicco sold the vehicle to the Defendant and at the time when the Defendant sold the vehicle at the Butler auto auction. The law of Ontario which is the applicable out-of-state law does not require notice of an encumbrance to be noted on the Ontario title. To the contrary, under Ontario law, the interest is perfected when a financial statement is registered. The Defendant does not contest Plaintiff’s statement that the Canadian security interest was perfected whenever a financing statement was filed with the appropriate authorities in Canada. With Canada not requiring a further notation of an encumbrance on a certificate of title to an automobile, this case is identical with a case decided under virtually the exact provisions of the Uniform Commercial Code containing the same provisions as the aforementioned § (c)(2)(ii). This case concerned a four month unconditional grace period for an out-of-state lienholder with a perfected security interest in the foreign state to have his lien considered perfected in the state to which the vehicle is removed.
In IAC, Ltd. v. Princeton Porsche-Audi, 75 N.J. 379, 382 A.2d 1125 (1978), the New Jersey Supreme Court held that the four-month grace period was absolute and unconditional when the Defendant was a dealer in automobiles rather than an innocent consumer purchasing for value. The exact same result is dictated under 75 Pa.C.S. 1132(c)(2)(ii). Counsel for either party at the time of the case or thereafter was unable to cite any Pennsylvania cases touching on this issue. At Post Trial Argument, the case of IAC, Ltd. v. Princeton Porsche-Audi, supra, was cited to the Court as being precisely on point. The reasoning of the New Jersey Supreme Court is persuasive. If the title to an automobile originates in a jurisdiction where there is no requirement that a perfected security interest appear on the face of the title and the automobile is brought into another jurisdiction and a new certificate of title issued showing no security interest, the holder of the security interest continues to have a perfected security interest for four months from the date of issuance of a new title. It is of no moment that the security holder did not perfect its interest until after the four month period expired. The purpose of the Statute is to give the security interest holder a four month period to recover the auto without being foreclosed by the defense of a bona fide purchase for value. This is particularly appropriate when a title indicates a predecessor title of foreign origination. The purpose of this foreign title notation can only be to alert a purchaser that reliance cannot be placed on the absence of an encumbrance of the fact of the present title or that further inquiry as to the foreign title of organization should be made. This is particularly so when the purchaser is a dealer in automobiles and not an unsophisticated consumer.

Tr.Ct.Op. at 3-7.

Defendant-appellant next contends that the trial court erred in granting a judgment n.o.v. We do not agree.

This Court has previously stated the following concerning our review of a grant of a motion for judgment n.o.v.

A judgment notwithstanding the verdict may be entered only in a clear case, Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa.Super. 60, 459 A.2d 409 (1983), and is proper only where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984). Judgment n.o.v. should not be entered in cases where evidence is conflicting upon a material fact. Burg v. Aberman, 183 Pa.Super. 1, 128 A.2d 179 (1957). In considering such a motion, a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 417 A.2d 1196 (1980).

Olson v. Dietz, 347 Pa.Super. 1, 10, 500 A.2d 125, 129 (1985); see also Lowry v. State Farm Ins. Companies, 392 Pa.Super. 77, 572 A.2d 700 (1990).

Instantly, a review of the evidence adduced at trial in the light most favorable to defendant-appellant reveals that plaintiff-appellee had perfected its security interest in the automobile under the laws of Canada. DiCicco then removed the automobile from Canada and obtained a Pennsylvania certificate of title on April 14, 1987. In May, 1987, DiCicco sold the automobile to defendant-appellant. Thus, at the time the automobile was brought into this Commonwealth and issued a certification of title, plaintiff-appellee’s security interest had been perfected and would remain so for four months. 75 Pa.C.S.A. 1132(c)(2)(ii). We find, therefore, that the evidence is not conflicting and that the entry of judgment n.o.v. was proper.

In conclusion, we affirm defendant-appellant’s first contention on the reasoning of the trial court opinion as adopted herein, and we affirm the entry of the judgment n.o.v.

Judgment AFFIRMED.


author: JOHNSON, Judge:

text:
    590 A.2d 1298
    COMMONWEALTH of Pennsylvania v. Carlos BAZABE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 25, 1991.
    Filed May 15, 1991.
    Petition for Allowance of Appeal Denied Sept. 30, 1991.

      Francis M. Socha, Harrisburg, for appellant.
    Deborah E. Curcillo, Asst. Dist. Atty., Harrisburg, for Com. appellee.
    Before TAMILIA, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

Carlos Bazabe appeals from the denial without a hearing of his petition under the Post Conviction Relief Act by the Honorable Clarence C. Morrison on July 18, 1990. In 1987, a jury convicted Bazabe of two counts of unlawful delivery of a controlled substance (cocaine). Judge Morrison sentenced Bazabe to consecutive terms of four to eight years’ imprisonment. On direct appeal to this Court, we affirmed the judgment of sentence. Commonwealth v. Bazabe, 382 Pa.Super. 638, 549 A.2d 1336 (1988) (mem., table). The Supreme Court denied a petition for allowance of appeal on January 17, 1989. No. 240 M.D. Allocatur Dkt. 1988.

Bazabe began these P.C.R.A. proceedings by filing a pro se petition in 1989. Counsel was appointed in February 1990 and filed a Supplemental P.C.R.A. Petition which was denied by Opinion and Order filed July 19, 1990, prompting this appeal. Finding no merit in Bazabe’s contentions, we affirm the order denying P.C.R.A. relief.

In his Supplemental Petition, Bazabe advances two issues for our consideration, both alleging ineffectiveness of trial counsel: (1) the trial judge’s instructions to the jury to continue deliberation, and (2) Bazabe’s decision not to testify in his own behalf. A third issue, which is properly subsumed under the second issue, involves the necessity of an evidentiary hearing to consider the second issue.

Preliminarily, we reiterate the standard to be applied in gauging the caliber of counsel’s performance as it has been enunciated by our supreme court:

In reviewing a claim of ineffective assistance of counsel, we must first determine whether the issue underlying the claim is of arguable merit ... If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue ... If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests ... Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990) (citations omitted).

Bazabe contends that the court improperly exerted pressure on the jury to reach a verdict. We find no merit in this contention whatsoever. The jury began deliberations at 12:25 P.M. on Tuesday, April 7, 1987 (the second day of trial) and returned to the courtroom with a question at 3:50 P.M. From the Transcript of Proceedings, Monday, April 6, 1987 et seq., the following includes the entire instruction under attack:

THE COURT: The jury has sent a question that they’d like to hear the definition of reasonable doubt. We will, of course, give you that, but will the foreman please rise. Does it appear, sir, that the jury is close to reaching a verdict in the matters in this case?
THE FOREMAN: No, Your Honor, it does not.
THE COURT: All right. Thank you, sir. You may be seated.
Before we give you a definition of what a reasonable doubt is we want to indicate to you, ladies and gentlemen of the jury, that, of course, it is quite an expense incurred in the bringing and the trying of these cases, and for that reason we are not very anxious to allow these matters to be disposed of without reaching some kind of verdict if it is at all possible. What we are talking about is in most cases having another panel, jury group empaneled and go through the same process, and, of course, we are not very anxious to be wasteful with assets if it is at all possible to avoid an unnecessary expense.
I say that to indicate to you, ladies and gentlemen of the jury, that it is a serious obligation that you have to try to arrive at some sort of conclusion in these matters because of the expense to the parties as well as to the Commonwealth to impanel a group and sit through a day and a half or two days of testimony and not have that matter resolved in one way or the other and face the possibility of having another panel sit and listen to what you have listened to and then try to resolve the problem. For that reason we usually try to encourage the panel to make a serious effort to try to resolve the problem.
We said to you that it is an individual judgment that each juror must face, and we also said that you have an obligation to consider the points of view of your fellow jurors, but you are not required to relinquish your position if you think you are right in whatever results you in your own mind have reached. But there are 12 of you, and if we didn’t anticipate that you would consider and deliberate together, of course, we would have one person make up their mind and not have the other 11 involved. The purpose is to have the benefits of the collective thinking of all of you in a reasonable process to try to resolve the problem if you can resolve the problem together.
We are going to define, give you the definition that you asked for, but we have, I discussed it with counsel, and rather than to face the prospects of the jury not being able to reach a conclusion, we think what we will do is excuse you for today and tomorrow morning we will ask you to come back and maybe a good night’s rest will help clear the cobwebs in your mind and make it a little easier to deal and come to grips with the issue that you have in front of you. It is an expense on the taxpayers of the county to go through the process, and we would like to spare them that expense of having to do the same thing twice if we can. If you can’t reach a verdict, then you can’t reach a verdict and we have to deal with that as best we can, but we are going to ask this panel to try again tomorrow morning and see whether or not they can arrive at some results in this' case.
Now, we are going to dismiss you and we are going to ask you to follow some very simple and routine instructions.
We are going to excuse you, as I say, because we think that maybe a night’s rest will put you in a better posture to reason on what you heard. But we ask you to adhere to the instructions we gave you about not talking about the case with anyone else and not reading the newspaper and not listening to TV and tomorrow morning when we reconvene you can discuss the case among yourselves and see whether or not you can provide a verdict in the case with respect to the 5 charges.
With those instructions the jury is excused and we will see you at 9 o’clock tomorrow morning.
(Whereupon, Court adjourned for the day at 4 o’clock p.m.)

Transcript of Proceedings, id., pages 160-62, 165. (emphasis added).

We agree with the Commonwealth that the case law in Pennsylvania quite clearly resolves this issue. In Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977), our supreme court reviewed a circumstance where the jury had been deliberating from 2:55 P.M. to 12:20 A.M., with a brief interlude at 5:15 P.M. to receive additional instructions. The trial court recalled the jury at 12:20 A.M., advised them of makeshift sleeping arrangements that could be available within the courthouse, requested the jury to continue deliberations, but gave them a rest option. The jury returned to deliberations at 12:30 A.M. and reached a verdict at 2:55 A.M. the same morning.

In refusing to find any abuse by the trial court, our supreme court said:

The court could properly draw the juror’s attention to their duty to “consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment.” ... In this context, it was not reversible error to refer briefly to the inconvenience of a retrial which would be necessitated by failure to obtain a verdict.
... The court offered the jurors the opportunity to suspend their deliberations in order to rest for the night, but they apparently preferred to attempt a speedy resolution of the case.
We conclude that this situation falls within the rule that “ '[t]he length of the deliberation of a jury is wisely left to the sound discretion of the trial Judge, and we reverse only if we find ... abuse of discretion, or that the verdict was the product of coercion or an overworked and fatigued jury.’ ” [citing cases]. We cannot make such a finding here.

475 Pa. at 531, 381 A.2d at 123-24. (citations omitted). In Gartner, our supreme court approved a charge given following nine hours and twenty-five minutes of deliberation, where deliberations were thereafter resumed at 12:30 in the morning. In the case now before us, Judge Morrison rendered the instructions set forth above after only three hours and twenty-five minutes of deliberation, immediately following which the jurors were released for the evening, prior to 4:00 P.M., to return to their homes for the evening.

We are unable to find any coercion or abuse of discretion, and there is absolutely no suggestion that the verdict in this case was rendered by an overworked or fatigued jury. Finding no merit in the alleged claim, we need not proceed further with the ineffectiveness analysis. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421, 425 (1989).

We find the second claim, relating to Bazabe’s decision not to testify in his own behalf to be equally without merit. The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel. Commonwealth v. Rawles, 501 Pa. 514, 523 n. 3, 462 A.2d 619, 624 n. 3 (1983); Commonwealth v. Fowler, 362 Pa.Super. 81, 87, 523 A.2d 784, 787 (1987). In order to support a claim that counsel was ineffective for “failing to call the appellant to the stand”, Bazabe must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Fowler, supra, 362 Pa.Superior Ct. at 87, 523 A.2d at 787; Cf. Commonwealth v. Martin, 346 Pa.Super. 129, 142, 499 A.2d 344, 351 (1985).

The entire allegation regarding counsel’s alleged ineffectiveness surrounding Bazabe’s decision not to testify is found in Paragraph 12 of the Supplemental Petition Under the Post Conviction Relief Act, filed February 6, 1990. That paragraph states:

12. Petitioner contends that trial counsel was ineffective for failing to call the Petitioner to the stand so as to allow the Petitioner to present his own personal account of the events which led to the instant charges. Specifically, the Petitioner contends that trial counsel was ineffective for interfering with the Petitioner’s freedom to testify, and/or giving specific advice so unreasonable as to vitiate a knowing and intelligent decision by the Petitioner not to testify on his own behalf. Petitioner was prejudiced by such ineffectiveness in that the Petitioner was denied the opportunity to present evidence of his unawareness and noninvolvement in the alleged drug transactions taking place.

While this paragraph does contain a verbatim statement of the applicable law as set forth in the Fowler case, it is totally devoid of any allegations of specific statements of trial counsel which might have misled Bazabe. Where the issue is whether an evidentiary hearing must be held, it is settled law that mere boilerplate allegations will not suffice to require a hearing. Commonwealth v. Silo, 509 Pa. 406, 411, 502 A.2d 173, 176 (1985); Commonwealth v. Floyd, 506 Pa. 85, 91-92, 484 A.2d 365, 368 (1984); Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

The paragraph upon which Bazabe would be forced to rely in seeking an evidentiary hearing on counsel’s ineffectiveness does not:

set forth an offer to prove at an appropriate hearing sufficient facts upon which an appellate court can conclude that trial counsel may have, in fact, been ineffective. This Court [our Supreme Court] will no longer consider claims of ineffective assistance of counsel in the abstract.

Commonwealth v. Pettus, supra, 492 Pa. at 563, 424 A.2d at 1335.

As in Silo, Floyd, and Pettus, supra, this court will not conclude, without more specificity, that any factual averments have been set forth that would either support an inference of ineffectiveness or justify an evidentiary hearing on the point. Were we to consider the assertions contained in the Brief for Appellant, at pages 12-13, we would first note that Bazabe’s reference to pages 20-21 in the Transcript of Proceedings, April 6, 1987, refers to a sidebar conference out of the hearing of the jury, following the Chief Deputy District Attorney’s opening to the jury. It is not at all clear, from that reference, that any evidence regarding prior arrests of Bazabe was thereafter admitted as part of the Commonwealth’s case-in-chief, as suggested in the Brief.

More to the point, however, our job on appeal is to determine whether the trial court committed an abuse of discretion in denying the petition for P.C.R.A. relief without a hearing. In that analysis, we must limit ourselves to inspecting the same pleadings and documents upon which the trial court decision was made. The trial court was limited to the contents of the Supplemental Petition under the P.C.R.A. in reaching its determination. As we conclude above, we find no error in the decision that Paragraph 12 does not set forth sufficient facts to raise an issue on the merits.

Where insufficient facts have been alleged in the petition for relief, denial without a hearing is proper. If it is clear that the allegation of ineffectiveness of counsel lacks arguable merit, then an evidentiary hearing is unwarranted and the unfounded allegation will be rejected. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984); Commonwealth v. Shablin, 362 Pa.Super. 289, 292, 524 A.2d 511, 512 (1987). Here, we are unable to find merit in either of Bazabe’s ineffectiveness claims. We accordingly attribute no error to the trial court’s denial of the petition without a hearing.

Order denying P.C.R.A. relief is AFFIRMED. Jurisdiction relinquished.


author: WIEAND, Judge:

text:
    590 A.2d 1303
    Z.H. MEIKSIN and Jeannine C. Meiksin, his wife, Appellants, v. HOWARD HANNA COMPANY, INC., a corporation, Howard Hanna, Jr., Patricia McCommon, Maurice A. Nernberg, Jr., W. Thomas Laffey, Jr., and Nernberg & Laffey, P.C., Appellees.
    Superior Court of Pennsylvania.
    Argued March 21, 1991.
    Filed May 15, 1991.
    Petition for Allowance of Appeal Denied Sept. 30, 1991.

      Jonathan P. Clunies, Pittsburgh, for appellants.
    H. Reginald Belden, Jr., Greensburg, for McCommon, Nernberg and Laffey, appellees.
    Before ROWLEY, President Judge, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this action for wrongful use of civil proceedings, the trial court entered summary judgment in favor of the lawyer-defendants who had instituted an unsuccessful action to recover real estate commissions on behalf of their broker client. The plaintiffs appealed. They contend, contrary to the trial court’s determination, that whether the lawyers had probable cause for filing the action to recover commissions is a disputed issue of fact which must be determined by a jury. We disagree with this contention and affirm the summary judgment entered by the trial court.

In Kelly v. Lutheran Church in America, 404 Pa.Super. 32, 36, 589 A.2d 1155, 1157 (1991), the Court defined the test for entering summary judgment as follows:

Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Id., 404 Pa.Superior Ct. at 36, 589 A.2d at 1157. See also: Laventhol & Horwath v. Dependable Ins. Associates Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990).

The tort of malicious use of process has been codified at 42 Pa.C.S. §§ 8351-8354. The statute provides as follows:

§ 8351. Wrongful use of civil proceedings
(a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

42 Pa.C.S. § 8351. See also: Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984). In order to prevail on a claim of wrongful use of civil proceedings, the plaintiff must show that the defendant maliciously instituted proceedings against the plaintiff, that the defendant lacked probable cause to institute the proceedings, and that the proceedings terminated in favor of the plaintiff. See: Kelley v. Local Union 249, 518 Pa. 517, 544 A.2d 940 (1988); Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). It is undisputed that the proceedings underlying the instant action were terminated in favor of appellant. However, absence of probable cause, an indispensable element of this action, is not conclusively established by a favorable jury verdict in the prior proceeding. See: Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 277, 488 A.2d 1117, 1122 (1985); Restatement (Second) of Torts § 675 comment b (1977). “If probable cause is shown to have existed, an absolute defense is established against an action for malicious prosecution, even when express malice is proved.” 52 Am.Jur.2d Malicious Prosecution § 50 (1970).

Regarding the liability of an attorney for the wrongful use of civil process, the Superior Court has followed the Restatement (Second) of Torts § 674 comment d (1977), where the law is stated as follows:

“An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.”

See: Shaffer v. Stewart, supra, 326 Pa.Superior Ct. at 140-141, 473 A.2d at 1020. The principal issue in this case is whether the appellee-lawyers had probable cause to bring an action for commissions earned by its broker client or whether they acted for an improper purpose.

Absent material conflicts in the evidence, the presence or absence of probable cause is for the court to determine. See: Wainauskis v. Howard Johnson Co., supra, 339 Pa.Superior Ct. at 277, 488 A,.2d at 1122; De-Salle v. Penn Central Transportation Co., 263 Pa.Super. 485, 491, 398 A.2d 680, 683 (1979); Restatement (Second) of Torts § 673 (1977). In determining the existence of probable cause in an action for wrongful use of civil proceedings, we are guided by 42 Pa.C.S. § 8352. This section of the statute provides as follows:

§ 8352. Existence of probable cause
A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

The undisputed facts in the instant case are that Howard Hanna Corporation, Inc., (Hanna Corp.) had been employed by Z.H. Meiksin and his wife, Jeannine, to sell an apartment building which they owned. The listing agreement provided that a commission would be paid at settlement if the broker obtained a buyer who was ready, willing and able to purchase the real estate. Hanna Corp. produced a buyer who entered an agreement to buy the apartment building, but the agreement was contingent upon the buyer’s obtaining the necessary financing. The buyer, unfortunately, was unable to obtain adequate financing prior to the date of settlement established by the agreement. Counsel for the Meiksins, therefore, asserted a provision making time of the essence and granted the buyers an additional thirty (30) days in which to obtain financing before termination of the agreement of sale. In the meantime, the Meiksins entered an agreement to sell to another purchaser. This purchaser had not been obtained by Hanna Corp., and the sales agreement was made contingent upon the legal termination of the agreement to sell to the first buyer.

The first buyer obtained a commitment for necessary financing within two weeks after the amended closing date. The Meiksins nevertheless refused to sell to the first buyer and closed with the second buyer. The first buyer subsequently filed an action against the Meiksins for specific performance, but this action was settled for a return of the buyer’s down payment.

Acting on behalf of their client, Hanna Corp., the law firm of Nernberg and Laffey filed a civil action against the Meiksins to recover commissions allegedly earned by the broker pursuant to the terms of the listing agreement. The Meiksins denied liability, contending that Hanna Corp. had failed to produce a buyer who was ready and able to complete the sales transaction. See: Shumaker v. Lear, 235 Pa.Super. 509, 345 A.2d 249 (1975). Hanna Corp. contended, however, that the amended closing date in the written sales agreement had been waived by an oral agreement between the parties which extended the date for settlement. The Meiksins moved pre-trial for summary judgment and during trial for a compulsory non-suit, but both of these motions were denied by the trial court. The factual issues were submitted to a jury for determination, and the jury returned a verdict for the Meiksins.

After the action for broker’s commissions had been resolved in their favor, the Meiksins commenced this action against Hanna Corp. and the law firm of Nernberg and Laffey for an alleged wrongful use of civil proceedings. Discovery disclosed that the lawyers for Hanna Corp. had based the action on information supplied by Gayle Pollock Jubelirer, an agent employed by Hanna Corp., to the effect that the closing date in the written sales agreement had been extended orally by the Meiksins. This testimony has not been disputed. On this state of the record, the trial court entered summary judgment in favor of the lawyers who had filed the action for broker’s commissions. The court concluded that a lawyer has a right to rely upon facts related to him by his client in filing a civil action against a third person. The court also concluded that the existence of probable cause was present as a matter of law in view of the existence of a legitimate dispute of fact in the prior action for commissions. This was apparent from the denial of motions for summary judgment and compulsory non-suit in the prior action and the submission of disputed factual issues to the jury.

Appellants argue that there is evidence from which a jury could find that an extension of the settlement date had not been agreed to by them or their lawyer. It has not been disputed, however, that the agent employed by Hanna Corp. advised the lawyer for the broker that an extension agreement had been made orally. The law is well established that “an attorney is entitled to rely in good faith upon the statement of facts made to him by his client, and is not under a duty to institute an inquiry for the purpose of verifying his statement before giving advice thereon.” 52 Am.Jur.2d Malicious Prosecution § 64 (1970). If the client falsifies the facts, there may be a liability which attaches to the client, but the lawyer is not liable if, without more, he acts in good faith upon the facts stated by the client.

Appellants contend that the lawyers should not have accepted the statement of facts related to them by their client because an oral agreement to extend the date of settlement would have violated the Statute of Frauds. This argument misperceives the purpose and function of the statute. The Statute of Frauds affects only the remedy and not the validity of a contract. See: Continental Collieries v. Shober, 130 F.2d 631 (3rd Cir.1942). As such, the parties to a written agreement for the sale of real estate may waive the protection of the statute and agree to an oral extension of the date for settlement. Moreover, “there is authority in support of the view sustaining the validity of an oral extension of the time of payment under, or for the performance of, a contract within the statute of frauds.” 72 Am.Jur.2d Statute of Frauds § 280 (1974). The Statute of Frauds did not have the effect, under the facts of this case, of preventing the lawyer-appellees from acting on the information supplied by their client to the effect that the time for closing the real estate settlement had been extended.

The existence of probable cause is also demonstrated by the fact that there was sufficient evidence of an oral extension to require that the existence of such an agreement be submitted to the jury for determination in the action to recover the broker’s commissions. This suggests that there was competent evidence of sufficient quantity and quality to demonstrate probable cause for a reasonable belief that the action could be maintained. This belief was confirmed also by the court’s denial of motions in the underlying action for summary judgment and compulsory non-suit, motions which could have been granted only if there had been no competent evidence sufficient to maintain the action.

There is no evidentiary support for appellant’s contention that the lawyers acted for an improper purpose. The broker had or believed that he had a claim for commissions after having produced a buyer for the apartment building, and he was entitled to be represented by counsel who was able to give undivided loyalty, unafraid of personal liability in the event the suit should fail. We conclude, therefore, that the trial court did not err when it determined that the appellee-lawyers were entitled to summary judgment. Lawyers can safely act upon facts stated by their clients. They do not incur liability to third persons for filing civil proceedings when the evidence of those facts is later found not credible by the court or jury whose duty it is to try the case. Any other rule would impair the quality of the representation which a client is entitled to receive from his lawyer.

Judgment affirmed.

      . Also named as defendants in this action were the first and second buyers. The claims against these buyers were dismissed, however, and are not implicated in the present appeal.

      . Also named as defendants were individual lawyers identified as Patricia McCommon, Maurice A. Nernberg, Jr. and W. Thomas Laffey, Jr.

      . We have considered this argument despite the fact that it is being made for the first time on appeal and was not considered by the trial court. The issue on appeal is whether the lawyers had probable cause for filing a civil action against appellants, and this issue has clearly been preserved for review. Because we are concerned with issue preservation and not theory preservation, we will consider appellant's additional theory that the Statute of Frauds destroyed any probable cause for filing an action to recover real estate commissions even if the buyer and seller had agreed orally to extend the date of final settlement.


text:
    590 A.2d 1307
    Effie Vose PATTEN, Appellee, v. Clinton R. VOSE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Decided May 10, 1991.

      Mary Jo Dillon, Butler, for appellant.
    Marilyn J. Horan, Butler, for appellee.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this action to recover child support arrearages which accrued between 1967 and 1970, the trial court ordered Clinton R. Yose to pay three thousand, two hundred fifty-one dollars and seventy ($3,251.70) cents to Effie Vose Patten. On appeal, the appellant-father argues that the recovery of such arrearages is barred by the doctrine of laches. We disagree and affirm the order of the trial court.

Clinton R. Vose and Effie Vose Patten were married on June 5, 1955 and thereafter resided in Butler County, Pennsylvania. Four children were born of the marriage. Richard was born September 6, 1957; Jeffrey was born June 15, 1960; Michael was born August 29, 1961; and Linda was born January 14, 1965. At some later time, Clinton and Effie separated, and, on October 5, 1966, the court in Butler County entered an order directing appellant-father to pay the sum of fifty ($50.00) dollars per week for the support of his wife and four children. The order was amended on March 31, 1967 to require payments of forty-two and 50/100 ($42.50) dollars per week, and arrearages were set at three hundred ten ($310.00) dollars. By the end of 1967, appellant-father had made support payments of one thousand, three hundred eighty-five ($1,385.00) dollars of a required seventeen hundred ($1,700.00) dollars, leaving arrearages of three hundred fifteen ($315.00) dollars.

In 1968, the appellant-father moved to Armstrong County, where an order was entered which required him to pay the sum of forty-two and 50/100 ($42.50) dollars per week for the support of four children. The records in Mercer County, where appellee-mother then resided, disclose that in 1968 appellant paid one thousand, five hundred seventy-two and 70/100 ($1,572.70) dollars of the two thousand, two hundred ten ($2,210.00) dollars required by the order. In 1969, he paid one thousand, four hundred eighty-seven ($1,487.00) dollars of the two thousand, two hundred ten ($2,210.00) dollars which were due. Finally, in 1970, appellant paid nine hundred forty-three and 60/100 ($943.60) dollars for support instead of the total of two thousand, two hundred ten ($2,210.00) dollars which was due. The arrearages from the Armstrong County order for the years 1968, 1969, and 1970, therefore, were in the total amount of two thousand, six hundred twenty-six and 70/100 ($2,626.70) dollars. The total arrearages for the years 1967 through 1970 were three thousand, two hundred fifty-one and 70/ 100 ($3,251.70) dollars.

In 1971, when appellant moved to Beaver County, the order was continued in Beaver County. On August 12, 1981, however, the parties entered an agreement by the terms of which appellant took custody of the parties’ remaining minor child, Linda. It was agreed at that time that the child support order would terminate and that appellant would pay the arrearages which had accrued under the Beaver County order. Arrearages under the Beaver County order were set at three hundred fifty-seven and 34/100 ($357.34) dollars, and appellant’s wages were attached in the amount of twenty-five ($25.00) dollars per week. By December, 1987, appellant had paid all arrearages due on the Beaver County order, and the attachment order was vacated.

On July 15, 1988, appellee commenced an action against appellant to recover arrearages which had accrued from 1967 to 1970 under the Butler and Armstrong Counties support orders. A hearing was held, and the hearing officer recommended that the matter be terminated with prejudice because appellee had waited twenty-three (23) years to request these arrearages. Exceptions were filed, and a hearing de novo was held before the Honorable Martin J. O’Brien. On July 21,1990, appellant was ordered to pay appellee three thousand, two hundred fifty-one and 70/100 ($3,251.70) dollars in child support arrearages which had accrued between 1967 and 1970. In so doing, the court rejected appellant’s defense of laches.

The test for applying the doctrine of laches has been stated as follows:

The party asserting laches must show, first, a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. ... It is not enough to show delay arising from failure to exercise due diligence; for “laches will not be imputed where no injury has resulted to the other party by reason of the delay.”

Jackman v. Pelusi, 379 Pa.Super. 361, 368, 550 A.2d 199, 202 (1988), quoting Kehoe v. Gilroy, 320 Pa.Super. 206, 212, 467 A.2d 1, 4 (1983). See also: Doppler v. Doppler, 393 Pa.Super. 600, 609, 574 A.2d 1101, 1106 (1990); In re Estate of Doerr, 388 Pa.Super. 474, 477, 565 A.2d 1207, 1208-1209 (1989).

Laches requires not only a passage of time, but also a resultant prejudice to the party asserting the doctrine. Young v. Hall, 421 Pa. 214, 218 A.2d 781 (1966) citing Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964). Laches is based on “some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act.” Leedom [v. Thomas], 473 Pa. [193], 201, 373 A.2d [1329], 1333 [1977].

In re Estate of Doerr, supra at 478, 565 A.2d at 1209. The existence of laches is a factual issue to be decided according to the circumstances in each particular case. Jackman v. Pelusi, supra, 379 Pa.Super. at 368-369, 550 A.2d at 202, citing, Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977). See also: In re Estate of Doerr, supra, 388 Pa.Super. at 478, 565 A.2d at 1209. “[T]he burden of proof with respect to the doctrine [of laches] is upon the party asserting the defense; in order to meet this burden, the party alleging the delay must demonstrate prejudice.” Lipschutz v. Lipschutz, 391 Pa.Super. 587, 546, 571 A.2d 1046, 1051 (1990), citing Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). “[DJelay alone, no matter how long, does not itself establish laches.” Jackman v. Pelusi, supra, 379 Pa.Super. at 369, 550 A.2d at 203.

“Courts have been extremely cautious in applying the doctrine of laches to situations like the one before us in which a child support order has not been enforced, even when long periods of time are involved.” Jackman v. Pelusi, supra, 379 Pa.Superior Ct. at 867, 550 A.2d at 202. In Jackman, the court held that a recovery of support arrearages was not barred by laches after a delay of thirteen (13) years where the appellant had not been prejudiced by the delay. See also: Rudder v. Rudder, 462 So.2d 732 (Ala.Civ.App.1984) (wife’s action to collect child support arrearages from husband not barred by laches where delay caused no prejudice since husband was aware of divorce decree ordering child support and knew that the child support payments were due); Roszko v. Roszko, 146 Ariz. 274, 705 P.2d 951 (1985) (wife waiting ten (10) years to assert claim against husband for child support arrearages was not barred by laches where wife constantly informed husband of the arrearages; wife was not required to pursue futile claim when it was manifestly obvious that husband was unable to pay due to financial difficulties); Brown v. Dyer, 489 A.2d 1081 (B.C.App.1985) (wife’s claim to collect child support arrearages from husband not barred by laches where husband failed to show prejudice by three and one-half (3V2) year delay and where it could not be said that delay was undue considering difficulty of enforcing support order while wife was living in foreign country and wife had made prior attempt to collect arrearages); Thurn v. Thurn, 310 N.W.2d 539 (Iowa App.1981) (wife’s action for child support arrearages not barred by laches where wife waited twenty-two (22) years to bring suit, since she knew that husband’s financial circumstances remained limited); Beck er v. Becker, 145 A.D.2d 968, 536 N.Y.S.2d 620 (1988) (wife’s mere inaction and delay in bringing proceeding for payment of arrearages of support order for almost four (4) years without showing of prejudice to husband did not constitute laches); Larsen v. Sedberry, 54 N.C.App. 166, 282 S.E.2d 551 (1981), cert. denied, 304 N.C. 728, 288 S.E.2d 381 (1982) (wife’s action for child support arrearages not barred by laches even though action not filed until fourteen (14) years after entry of original order and until former husband had died where it was not shown that wife’s delay resulted in prejudice to husband).

In the instant case, the appellant moved from county to county during the period in which he was required to pay for the support of his wife and children, and appelleemother resided in Michigan after 1982. Nevertheless, it is difficult to explain appellee’s failure to make an effort to collect arrearages, particularly in view of the fact that later arrearages were collected by means of a wage attachment issued in Beaver County. However, even if we assume that appellee demonstrated a lack of due diligence in pursuing her right to collect arrearages, the record fails to disclose that appellant was prejudiced by the delay.

“Prejudice is an essential element of laches; in the absence of prejudice to the party asserting laches, the doctrine will not be applied.” Jackman v. Pelusi, supra, 379 Pa.Super. at 369-370, 550 A.2d at 203. Appellant contended in the trial court that he had been prejudiced because payment records in Armstrong County had been destroyed. Because of the intercounty proceedings, however, the existence and amount of arrearages could be determined by records in Butler and Mercer Counties. Appellant also contends on appeal that he believed the wage attachment in Beaver County had been effective to wipe out all prior arrearages. He conceded, however, that he had been aware that full payments had not been made as required by the orders entered in Butler and Armstrong Counties. We are constrained to agree with the trial court, therefore, that the circumstances do not demonstrate that appellant was prejudiced by appellee’s failure to move promptly to collect support arrearages. Appellant’s duty to provide support for his wife and children had been established by court order; and his failure to comply fully therewith was clearly established by judicial records. Under these circumstances, he cannot complain that enforcement was delayed. He has been employed steadily at the same job during the last seventeen years, and it does not appear that his ability to pay support arrearages has been impaired. Thus, he has failed to demonstrate laches which would bar appellee’s action to recover arrearages due under prior court orders.

Affirmed.

      . Husband and wife were divorced on December 18, 1967.


author: HUDOCK, Judge:

text:
    590 A.2d 1311
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles A. WOODS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1991.
    Decided May 15, 1991.
    Petition for Allowance of Appeal Denied Oct. 1, 1991.

      Stuart Lev, Philadelphia, for appellant.
    Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com. appellee.
    Before McEWEN, KELLY and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from a judgment sentencing Appellant Charles A. Woods, Jr. (hereinafter “Appellant”) for possession with intent to deliver a controlled substance, criminal conspiracy, reckless endangerment, and simple assault. Appellant's pre-trial motion to suppress was denied after an evidentiary hearing, and a bench trial followed. Timely filed post-verdict motions were denied. We affirm.

The facts of this case appear in the trial court opinion:

... On February 19, 1988, a first time informant told [Police Officer Kevin Beckett, the Affiant] that he had purchased cocaine inside the front door of 6088 Upland Street. The informant stated he knew it to be cocaine because he used it. On that same day, the affiant went to that location and observed several unknown black males enter, stay a short period of time and leave. The affiant further observed a white male enter the location and upon stopping him for investigation found him in possession of a blue packet containing a white powder (alleged cocaine).
The next day, February 20, 1988, the affiant placed the location under surveillance and within one-half hour observed three black males and four black females enter, stay for short periods of time and leave. On February 23, 1988, the affiant again went to the location and observed three black females and four black males enter, stay for short periods of time and leave.
Lastly, the affiant writes that based upon the information he received, his observation and his experience, he believed cocaine was being sold from 6088 Upland Street.

Suppression and trial court opinion, at pp. 2-3.

The facts which followed, as gleaned from the notes of testimony, were succinctly summarized by the Commonwealth:

On February 25, 1988, Philadelphia Police Officer Philip Riehl executed a warrant authorizing a search of the premises at 6088 Upland Street in Philadelphia.[] After Officer Riehl identified himself as a policeman and entered the house, [Appellant] threatened the officer with a loaded Smith and Wesson .44 magnum revolver. (Citations omitted) Officer Riehl drew his own gun and [Appellant] then dropped the revolver and ran upstairs. [Appellant] was taken into custody. Evidence seized from the premises included 157 blue plastic packets of cocaine, four scales, two revolvers, two rifles, and letters addressed to [Appellant] at 6088 Upland Street. (Citation omitted).[]

Commonwealth Letter Brief, at p. 1.

Appellant argues that probable cause did not exist for the issuance of a search warrant. He requests reversal of the suppression ruling, vacation of sentence, and a new trial.

We commence by referring to the standard which governs our review. In Commonwealth v. Cameron, 385 Pa.Super. 492, 496, 561 A.2d 783, 785 (1989), we stated: “[bjecause there is no question that the factual findings are supported by the record, we will address ourselves to the validity of the court’s inferences and legal conclusions.” Such is the case here. We will therefore focus on the trial court’s conclusions of law, and in so doing only the prosecution’s evidence will be considered, in addition to as much of the defense evidence which remains uncontradicted upon a fair reading in the context of the record as a whole. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983).

In Commonwealth v. Bruner, 388 Pa.Super. 82, 93, 564 A.2d 1277, 1282 (1989), we recapitulated the law of probable cause:

“Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search.” Probable cause to support issuance of a search warrant is present where facts and circumstances within the affiant’s knowledge, of which he has reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in belief that a search should be conducted. The information offered to demonstrate probable cause to search “must be viewed in a common sense, nontechnical, ungrudging and positive manner.” It is based on a finding of probability, not a prima facie showing of criminal activity. (Citations omitted).

In the appeal before us, the suppression court considered the totality of the circumstances, discussed supra, which were contained in the requisite affidavit when it upheld the warrant to search. In so doing, it appropriately relied on Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985), wherein our Supreme Court adopted the totality test. A reviewing court must pay great deference to an issuing authority’s determination of probable cause for the issuance of a search warrant. Commonwealth v. Macolino, 336 Pa.Super. 386, 485 A.2d 1134 (1984). Given this deference, taken in conjunction with the total circumstances which were considered herein, we fail to see how probable cause was lacking for the issuance of the warrant in dispute. Appellant would have us conclude that probable cause was absent due to the fact that the informant did not indicate to the affiant the precise date upon which he had purchased cocaine at 6088 Upland Street. Review of pertinent authority, however, fails to mandate reversal on the basis of this omission. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), is distinguishable. In Edmunds, a defendant’s motion to suppress marijuana was denied despite the court’s finding that the warrant did not specifically set forth the date on which anonymous informants had observed this evidence. This denial was premised on the now abolished good faith exception to the warrant requirement of Article I, Section 8 of the Pennsylvania Constitution. On appeal before the Supreme Court, the Commonwealth conceded an absence of probable cause in the application for the warrant. No such concessions have been made in the case at bar. The Edmunds warrant embodied the observations of the informants, in addition to the fact that the affiant located the property which they had described, as well as a mailbox with “Edmunds 228” printed on it. Our Supreme Court agreed with the suppression court that probable cause was absent, but abolished the good faith exception upon which the lower court based its decision.

In the case at bar, on the other hand, the informant’s tip was supported by independent, “recent” surveillance on the part of the officer. The additional information gained by the officer, considered in context of the total circumstances discussed herein, gave rise to the probability that prohibited activity was afoot at the time that the warrant was sought, and provided sufficient grounds for its issuance. Unlike Edmunds, this was not a situation where the affidavit did not contain “facts so closely related to the time of the issue of the warrant as to [not] justify a finding of probable cause at that time”. Commonwealth v. Ed munds, 373 Pa.Super. 384, 390, 541 A.2d 368, 371 (1988), citing Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973) (citations omitted), rev’d on other grounds, 526 Pa. 374, 586 A.2d 887 (1991). Given this distinction, it follows that Appellant’s reliance on the omission of the precise date of the informant’s alleged cocaine purchase does not by itself produce an absence of the probable cause necessary for the issuance of a non-defective warrant.

Appellant, however, also argues that the police surveillance of 6088 Upland Street, instead of corroboration by way of more specific means, gave rise, at best, to mere suspicion and not to probable cause. We disagree. The existence of arguably more persuasive means of corroboration did not by itself render insufficient that information which was produced by police action. Moreover, as noted above, considered by the court below were: The affiant’s experience, surveillance of the location in question, observation of a series of unusually short “visits”, the discovery of cocaine in the possession of one of the visitors, and information disclosed by an informant to a law enforcement official. We find these facts to be adequate support for a finding of probable cause to search and, as a result, do not find that a warrant based thereon is insufficient as a matter of law.

Judgment of sentence affirmed.

      . Appellant was sentenced to three (3) to six (6) years for the possession offense, a consecutive one (1) to two (2) years for simple assault, and a consecutive three (3) years of probation for criminal conspiracy. The charge of reckless endangerment merged with simple assault for the purposes of sentencing.

      . Officer Riehl was listed in the category of "Other Officers Participating in the Search" in the Search Warrant and Affidavit.

      . This .summary is supported by an independent, thorough review of the "Motion to Suppress and Waiver Trial” transcript.

      . The affidavit herein reads:
      On Friday, 2-19-88, I received information from a first time informant who stated to me he purchased Cocaine in the amount of ten dollars from a black male who is not known to him, through the inside frontdoor [sic] of 6088 Upland St.
      He further stated he knows this to be cocaine because he used it. On Friday, 2-19-88: I conducted a surveillance of this location where at different times Idid [sic] observe several unk [sic] black males enter this location, stay a short time then leave. On Saturday, 2-20-88, Between [sic] 8:30 and 9:00, I conducted a surveillance of this location where at different [times] Idid [sic] observed [sic] 3 black males and 4 black females enter this location stay a short time then leave.
      On Tuesday, 2-23-88, Iagain [sic] conducted a surveillance of this location, lobserved [sic] 3 black females and 4 black males, enter this location, stay a short time then leave. Based on information given (stated) to me by this informant, I also was told that this property is also fortied [sic] with steel door inside the inner front door and also a steel door on the rear door of this property. Based on information received from this informant, my personal observation of the inner and outer, front and rear doors of this location which based on my personal experience is a typical set up used for illegal drug transactions in this area, surveillances conducted, I do believe COCAINE is being sold from this location and do respectfully request this warrant be approved.
      On 2/19/88 I observed one w/m enter the location. Invest, of this male found him to be in possession of 1 small blue packet containing a white powder (alleged cocaine). This male was taken into custody & transported to [sic] unit where powder was tested and found to be positive.
      [Emphasis in original]

      . As examples of more specific corroboration, Appellant suggests a controlled buy, observations of specifically prohibited transactions, or confirmation with other informants.


author: TAMILIA, Judge:

text:
    591 A.2d 288
    COMMONWEALTH of Pennsylvania v. Scott McCONNELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 18, 1991.
    Filed April 11, 1991.
    Eeargument Denied June 21, 1991.
    Petition for Allowance of Appeal Denied Oct. 31, 1991.

      Joseph E. Hudak, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before DEL SOLE, TAMILIA and HUDOCK, JJ.
   TAMILIA, Judge:

Appellant, Scott McConnell, takes this appeal from judgment of sentence entered February 7, 1990. Following a nonjury trial, appellant was convicted of driving under the influence and related summary offenses and sentenced to a term of forty-eight hours to six months imprisonment and fined $370.

On appeal, appellant raises two ineffectiveness claims. Appellant first argues trial counsel was ineffective for failing to object to the admission into evidence of appellant’s refusal to submit to a blood test at the time of his arrest and appellant’s videotaped refusals to submit to a blood test and perform field sobriety tests while in police custody.

With regard to allegations of trial counsel’s ineffectiveness the test is well settled. First we must determine whether the underlying claim is of arguable merit. If the claim is devoid of merit, our inquiry ceases for counsel will not be deemed ineffective for failing to pursue an issue without merit. If, however, the claim possesses merit, we must determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Tressler, 526 Pa. 139, 584 A.2d 930 (1990).

Appellant’s initial claim is without merit as evidence of a refusal to submit to a blood test is admissible in Pennsylvania as provided for in the Vehicle Code. The pertinent provision states:

(e) Refusal admissible in evidence.—In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

75 Pa.C.S. § 1547(e). See also Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988). Accordingly, trial counsel cannot be deemed ineffective for failing to object to the admission of evidence for which a statute expressly provides. As to appellant’s claim that trial counsel was ineffective for failing to object to the admission into evidence of a videotape of appellant at the police station refusing to submit to a blood test and to perform field sobriety tests, we also find this argument without merit.

We are guided in our determination by a recent United States Supreme Court decision, wherein a majority of the Court held that one cannot challenge the introduction into evidence of his refusal to submit to a breathalyzer test or to a blood test. The Court held “that since submission to a blood test could itself be compelled, ... a State’s decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not ‘compel’ the suspect to incriminate himself and hence did not violate the privilege.” Pennsylvania v. Muniz, 496 U.S. -, -, 110 S.Ct. 2638, 2652, 110 L.Ed.2d 528, 554 n. 19 (1990) (citations omitted). The Supreme Court saw no reason to distinguish between chemical blood tests and breathalzyer tests, and we extend the parallel line to field sobriety tests as well, as evidence of one’s refusal of these tests is not “testimonial” in nature and, thus, not within the purview of fifth amendment protections.

Appellant’s second claim of ineffective assistance concerns the failure of trial counsel to object to the prosecutor’s offer of rebuttal testimony that appellant never advised the police officer who conducted the field sobriety tests that he was suffering from any back injury or ailment. Appellant had previously testified at trial that he was unable to perform the field sobriety tests due to his back hurting. Appellant argues the prosecutor’s statement was an impermissible comment upon appellant’s post-arrest silence. We disagree as appellant misconstrues the facts of this case.

While appellant correctly notes that references to a criminal defendant’s post-arrest silence are improper, a similar prohibition does not attach to a defendant’s prearrest silence. Commonwealth v. Gumby, 398 Pa.Super. 155, 580 A.2d 1110 (1990). In this case, the police made a routine traffic stop of appellant, investigative rather than custodial in nature, and in the course of this traffic stop, appellant was asked to perform a series of field sobriety tests. Only when appellant stated that he could not perform one of the tests, and within the totality of the circumstances the police observed, was appellant arrested for driving under the influence. Accordingly, trial counsel had no basis to object, and this claim of ineffectiveness is without merit.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1).

      . Appellate counsel represented appellant at trial and is raising his own ineffectiveness in this appeal. As appellant’s claims are without merit, however, the case need not be remanded for the appointment of new counsel. See Commonwealth v. McBee 513 Pa. 255, 520 A.2d 10 (1986).