author: TAMILIA, Judge:

text:
    615 A.2d 80
    Linda A. BUDNICK v. David BUDNICK, Appellant.
    Superior Court of Pennsylvania.
    Argued July 15, 1992.
    Filed Oct. 7, 1992.

      Santo A. Agati, Harvey’s Lake, for appellant.
    Richard M. Goldberg, Wilkes-Barre, for appellee.
    Before CIRILLO, TAMILLA and POPOVICH, JJ.
   TAMILIA, Judge:

The parties to this appeal, appellant David Budnick and appellee Linda A. Budnick, nee Linda Ann Cappellini, were married on July 26, 1980 in West Wyoming, Luzerne County. This was the second marriage for appellant and the first for appellee. On October 13, 1982, appellee was injured seriously in an automobile accident and was hospitalized for four months. Subsequently, the parties separated and on February 8, 1983, appellee filed a complaint in divorce. A Master was appointed thereafter, three hearings were held in September and October of 1983 and the trial court issued a divorce decree on March 12, 1984, retaining jurisdiction over the issues of equitable distribution, attorneys’ fees and court costs. On December 7, 1984, a jury rendered a verdict in favor of appellee in the amount of $12,608,028 for the injuries she suffered in her accident. On May 1,1986, the Master filed his report and recommendations, to which appellant filed exceptions. After oral argument on the exceptions, the trial court, on May 21, 1987, issued the following Order:

(1) That Defendant’s Exception to the Master’s Recommendation excluding the personal injury award recovered by Plaintiff as non-marital property is hereby DENIED.
(2) That Defendant’s Exception to the Master’s Recommendation that each party pay their own counsel fees and expenses is hereby GRANTED for reasons appearing in the accompanying opinion.
(3) That Defendant’s Exception to the Master’s Recommendation that the parties be awarded their respective pension benefits is hereby GRANTED for the reasons appearing in the accompanying opinion.
(4) That the Master file with this Court a new Proposed Recommendation for equitable division of marital property after having taken into consideration the personal injury award recovered by Plaintiff, not as a marital asset but, rather, as a relevant factor under Section 401(d) of the Pa. Divorce Code.
(5) That the Master file with this Court a new Proposed Recommendation concerning an award of counsel fees and costs after having taken into consideration the personal injury award recovered by Plaintiff as a relevant factor under Section 401(d) of the Pa. Divorce Code.

The parties filed cross-appeals to this Order -with the Superior Court (Budnick v. Budnick, 374 Pa.Super. 637, 538 A.2d 935 (1987) (unpublished memorandum), which were quashed as interlocutory. Pursuant to the trial court’s order concerning a new proposed Master’s recommendation, further hearing was held on August 27, 1990, following which the Master issued a supplemental report and recommendation on May 17, 1991. The Master, in his supplemental report, followed the directives of the trial court’s May 21,1987 Order, but essentially reached the same conclusions as it had in its initial report and recommendation. Appellant filed exceptions to the supplemental Master’s report and by Order dated December 19, 1991, the trial court denied appellant’s exceptions and upheld the Master’s report and recommendation.

In this appeal, appellant first argues appellee’s personal injury award derived from a claim arising during the marriage, and is therefore a marital asset subject to equitable distribution. As an initial matter, however, we note equitable distribution of marital property is within the sound discretion of the trial court, whose decisions shall not be disturbed on appeal absent an abuse of that discretion. Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983); Kozich v. Kozich, 397 Pa.Super. 463, 580 A.2d 390 (1990), app. den., 527 Pa. 635, 592 A.2d 1302 (1991).

Under the Divorce Code in effect at the time of the commencement of this case, “marital property” means all property acquired by either party during the marriage except:

(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.

23 P.S. § 401(e)(4) (repealed) (emphasis added).

In Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), this Court concluded that settlement proceeds recovered during marriage because of personal injuries sustained by one of the spouses were marital property and subject to equitable distribution. Id., 309 Pa.Super. at 21-23, 454 A.2d at 1061-1062; see also Kozich, supra. However, applying the above principles to a case in which a spouse sustained personal injuries prior to separation, but the verdict was recovered and satisfied after separation, this Court later held: “Only after an unliquidated claim for personal injuries has become liquidated by settlement, verdict or otherwise should it be deemed ‘marital property’ and become subject to distribution between the spouses.” Hurley v. Hurley, 342 Pa.Super. 156, 161, 492 A.2d 439, 442 (1985). Also see Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992) (Trust fund settled on wife prior to marriage may not be considered for purpose of increase in value until the amount settled becomes vested in the wife).

Subsequent amendment to the Divorce Code in 1988 stated that marital property does not include the increase in value, prior to separation, of “[a]ny payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.” 28 P.S. § 401(e)(8) (emphasis added). “The 1988 amendment has discarded the time of liquidation as the determinative factor. We must now look to the time the cause of action accrued. 23 P.S. § 401(e)(8).” Nuhfer v. Nuhfer, 410 Pa.Super. 380, 381, 599 A.2d 1348, 1349 (1991).

This Court, therefore, must determine whether the provisions of section 401(e)(8), as embodied in the 1988 amendments to the Divorce Code, are to be applied prospectively or retroactively. “A presumption exists in this Commonwealth that ‘[n]o statute shall construed [sic] to be retroactive unless clearly and manifestly so intended by the General Assembly.’ 1 Pa.C.S. § 1926. In fact, in the absence of clear language to the contrary, statutes must be construed to operate prospectively only.” Flick v. Flick, 408 Pa.Super. 110, 115-117, 596 A.2d 216, 219-220 (1991). A law is given retroactive effect “when it is used to impose new legal burdens on a past transaction or occurrence.” Id. However, amendatory statutes “are not to be construed as retroactive unless such a construction is so clear as to preclude all question as to the intention of the legislature.... ” DeMatteis v. DeMatteis, 399 Pa.Super. 421, 434, 582 A.2d 666, 672 (1990).

The language of former section 401(e)(4), as well as that of section 401(e)(8), recodified in section 3501(a)(8), is clear and unambiguous on its face and makes no references in the subsequent amendments to retroactive application of its provisions. Therefore, it is equally clear and unambiguous that the trial court correctly applied the proper law, interpreted by Hurley, supra, rather than the subsequent amended provisions espoused by appellant and ostensibly supported by Kozich, supra and Nuhfer, supra. Consequently, we find appellant’s claim without merit.

Appellant next argues the Master’s supplemental proposed recommendations, upheld by the trial court, failed to give due consideration to factors outlined in the Divorce Code. The Divorce Code in effect at the time read as follows:

(d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
(11) Whether the party will be serving as the custodian of any dependent minor children.

23 P.S. § 401(d) (now § 3502(a)).

In his supplemental report, the Master stated: “Reviewing the factors set forth in 23 P.S. Section 401(d) and including within those factors, Plaintiffs personal injury award, the Master is still not swayed that his original proposal was not fair and equitable under the circumstances.” We agree.

Appellant frames his argument in this regard in terms of the inequity inherent in any equitable distribution which does not include appellee’s personal injury award. However, as has been discussed, supra, the personal injury award was not marital property and not subject to equitable distribution. Removing the award from consideration, appellant received a greater share of the marital assets than did appellee, and our examination of the record discloses no abuse of discretion by the trial court warranting reversal on appeal. Therefore, this claim is also without merit.

Finally, appellant argues the trial court abused its discretion in failing to award him legal fees and costs. The trial court properly applied section 502 of the 1980 Divorce Code, and the case law deriving therefrom, in determining each party should pay its own legal fees and costs.

Prior to its 1988 amendment, section 502 read: “The court may, upon petition, in proper cases, allow a spouse ... reasonable counsel fees and expenses.” 23 P.S. § 502. Counsel fees are not awarded to either spouse automatically, but are appropriate when necessary to put the parties on a par to maintain or defend the action. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987). The determination to award counsel fees is made on a case-by-case basis. Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985).

Once again, appellant buttresses his claim on the personal injury award belonging to appellee. Appellant concedes he “is not without assets,” but asserts he “is economically disadvantaged when compared to the resources available to” appellee (Brief of Appellant at 22). This is not the test for an award of counsel fees. A petitioning spouse must show actual need before such an award is justified. Kohl v. Kohl, 387 Pa.Super. 367, 564 A.2d 222 (1989). Based on the record before us, we agree with the trial court that there is no evidence appellant is unable to pay his own legal fees and costs, and this claim is without merit.

Order affirmed..

      . This section has been reenacted in the same substantive form as 23 Pa.C.S.A. § 3501(a)(4).

      . Act of 1988, February 12, P.L. 66, No. 13.

      . Title 23 of Purdon's Statutes was recodified at 23 Pa.C.S. § 3101 et seq. and entitled Domestic Relations. The recodification, however, has not affected substantively the disposition of property rights after termination of marriage.

      . See 23 Pa.C.S. § 3501(a)(8).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    615 A.2d 84
    Emil B. KWASNIK, Sr. and Diane Kwasnik, H/W, v. Edna W. HAHN, Robert L. Hall, Thomas W. Dennis and Pappy B. Lady B., Inc., Now by Change of Name, Gaucho’s Inc. Appeal of Thomas W. DENNIS.
    Superior Court of Pennsylvania.
    Argued July 14, 1992.
    Filed Oct. 19, 1992.

      Daniel P. Lyons, Stroudsburg, for appellant.
    John J. Pentz, Stroudsburg, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves an appeal from the December 11, 1991, order (reduced to judgment thereafter) granting a petition to reinstate a confessed judgment against the defendant/appellant, Thomas W. Dennis. We reverse.

The facts of record indicate that on December 16, 1985, the defendant, the only one of four obligors who has perfected the instant appeal, executed a “Bond and Warrant” in favor of the plaintiffs/appellees, Emil B. Kwasnik, Sr. and Diane Kwasnik, his wife. As is herein relevant, the “Bond and Warrant” reads:

Know all Men by these Presents
THAT ... THOMAS W. DENNIS ... Debtor[ ] ... referred to as “Obligor” ... is held and firmly bound unto EMIL B. KWASNIK, SR. and DIANE KWASNIK, his wife ... (hereinafter called the Obligee), in the penal sum of $246,671.72 — Dollars, to be paid to the Obligee, or certain attorney.
The Condition of this Obligation is such, That if the Obligor shall:
1. Pay unto Obligee the principal sum of $123,335.86— Dollars, ... with: (a) Interest at the rate of twelve (12%) — per cent, and____
2. Pay said principal sum as hereinafter set forth in the paragraph or paragraphs marked with an ‘X’:
fXJ In 240 monthly installments of amortized principal and interest in the amount of ... $1,358.03 each, commencing January 16, 1986.
3. With respect to the premises described in the Mortgage accompanying this Obligation:
(a) Maintain and deliver to Obligee ... insurance ...; and
(b) Pay all ... taxes ...;
(c) ...;
(d) Keep the improvements in good order and repair ...; and
(e) Make no change in record title of the premises ...;
(f) Comply with and fulfill all of the obligations and conditions
Then the above Obligation to be void, or to remain in full force and effect.
If any one or more of the payments herein provided for is not paid in full for the space of thirty days after it falls due ... then the entire unpaid balance of the principal sum shall, at the option of Obligee and without notice, become immediately due and payable with all accrued interest thereon....
And Further, Obligor hereby authorizes and empowers the Prothonotary, Clerk or any Attorney of any Court of record of the Commonwealth of Pennsylvania, or elsewhere to appear for Obligor and, with or without a declaration filed,[] to confess or enter a judgment in the name of and against Obligor and in favor of Obligee, for the penal sum above mentioned with costs of suit, and a full release of all errors. And Obligor hereby waives and releases any benefit or advantage of any stay or setting aside of execution or other process, of all laws and rules now in force, or that may be enacted, adopted, or promulgated, exempting property either real or personal, or the proceeds thereof, from levy and sale under any execution that may be issued for the collection of the said judgment.

On January 30, 1991, the plaintiffs entered judgment on the “note” for the amount of $246,671.72. A rule was issued upon the plaintiffs to show cause why the defendant's petition to strike or open the confessed judgment should not be granted. In the petition, the defendant averred that, along with the judgment note, a writ against the personal and real property of the obligor under the “Bond and Warrant” had been executed.

Under the Motion to Strike portion of the petition, the defendant claimed that the “Bond and Warrant” required the occurrence of a default before the plaintiffs could accelerate the amount due, and the occurrence of such a default, not being ascertainable from the “Bond and Warrant”, necessitated the filing of a complaint pursuant to Pa.R.Civ.P. 2951(c)(3). No such complaint having been filed, the judgment should have been stricken, so stated the defendant.

With regard to the Motion to Open section of the petition, the defendant alleged that the plaintiffs had “orally agreed” to allow him “to delay indefinitely” the reimbursement of two (2) months of delinquent payments owed since 1989.

Because there was a factual issue as to whether the “terms of the ‘Bond and Warrant’ ” had been modified by oral agreement, the defendant argued that the confession of judgment should be opened and the writ of execution stayed. In response, the plaintiffs denied, inter alia, that “the confession of judgment was for alleged non-payment on a bond and warrant____ [Rather, the plaintiffs asserted that t]he confession [wa]s absolute and not conditioned on any default, and [the p]laintiffs were ... authorized to confess judgment at any time for the penal sum as provided in the confession.” Paragraph 1.

The plaintiffs admitted permitting the defendant to delay payment, but they denied allowing the defendant “unlimited additional time” to repay the amount due. Id. at 6. Also, the plaintiffs, in New Matter, agreed that a Praecipe For Writ Of Execution had been issued for levy upon the real and personal property of the defendant. Id. at 9.

The case was set for argument. Counsel agreed the issue to be resolved was “whether ... the Petition to Strike and Open [wa]s subject to any condition of default in order for Plaintiffs to enter the confession for the penal sum, and [whether] ... the confession [wa]s correct[ ] under Rule 2951(a).” STIPULATION at 1. Accord Defendant’s Brief in Support of Motion to Strike or Open Confession of Judgment, wherein the defendant “concede[d] that plaintiffs[’] confession of judgment should not be stricken” since “the confession of judgment clause d[id] not contain ... a condition” of default before allowing it to be entered. Id. at 4.

The defendant contended that once the judgment was entered, however, he was not precluded from petitioning to have the judgment opened. Id. at 4-5. This procedure, according to the defendant, was sanctioned by Pa.R.Civ.P. 2959(e).

By order dated May 31, 1991, the court found that the “Bond and Warrant” was conditional and struck the judgment as violative of Pa.R.Civ.P. 2951(a). The court held that the correct procedure required the presentment of a complaint, id. at 2951(b), which the plaintiffs did file thereafter as well as a praecipe to reissue the writ of execution. The defendant reacted by filing a Petition to Strike the plaintiffs’ confession of judgment on the ground that:

The Confession of Judgment entered against Defendant Thomas W. Dennis on July 2,1991 is null and void since the Warrant of Attorney in the bond date of December 8, 1985, was exhausted by Confession of Judgment filed against Defendant Thomas W. Dennis on January 30,1990 and later struck by this Court____

Paragraph 7 (Citations omitted). An Answer with New Matter was filed by the plaintiffs denying the invalidity of the confession of judgment and sought reinstatement of the original judgment for the amount confessed.

Further, the plaintiffs filed a Petition to Re-Argue Striking of Judgment and to Re-Instate Confessed Judgment Against Thomas W. Dennis, wherein it was alleged in relevant part:

8. The Plaintiffs did not incorrectly proceed to enter judgment on the bond and warrant pursuant to Pa.R.C.P. 2951(a); the power of confession in the warrant is clear that the Plaintiffs were authorized to confess judgment for the penal amount, a sum certain appearing on the face of the note, and Plaintiffs were not authorized under the warrant to confess for the amount then due.
9. The comments to the Rule make it clear that the Rule does not change existing law, and the proper procedure on the confession in reference to the note in question was that followed by Plaintiffs. It is specifically provided in the notes to the Rule as follows:
“For collection of attorneys’ fees under such a judgment see Rule 2957. If an instrument authorizes confession for a penal sum judgment may be entered in that amount.”
10. There is no requirement under the Rules or existing case law which requires the amount of the confessed judgment, which is clear in the note, to be for an amount which is actually due and owing under the mortgage.
11. The confession for the penal sum as provided in the note is and has been a valid right and approved procedure under Pennsylvania law since the formation of the Commonwealth, and this is recognized in the notes to the Rule.
12. There is no law, nor any Pennsylvania cases which in any way limits the right to confess judgment for the penal sum.
13. In the last Brief of Attorney [for the defendant] he conceded that the judgment was correctly entered and therefore was not subject to being stricken.
20. [The defendant] has filed his Petition to Strike the Confession of Judgment on the filed Complaint which was filed after the Order of this Court on May 31, 1991, citing the authority that a confession once used may never be used for a second confession.
21. The Court has authority to correct its Order Striking the Judgment Against [the defendant] and to re-instate the original confession of judgment, which is necessary for the equitable and just treatment of the Plaintiffs who are entitled to recover and collect the balance due on their Note and Mortgage which is and has been seriously in default for over one year.
WHEREFORE, Plaintiffs respectfully request the Court to reconsider the prior Petition of Defendant ... to Strike the original confessed judgment and its Order striking the confessed judgment against [the defendant], and to reinstate the original confession of judgment against [the defendant].

The defendant filed an Answer which denied those allegations, one of which averred that the “defendant still raise[d] the valid issue that [the] first confession of judgment should be opened.” Paragraph 13. In a brief, the defendant argued that the initial confession of judgment on a warrant of attorney exhausted the subsequent (second) confession of judgment.

In rebuttal, the plaintiffs noted that the general proposition espoused by the defendant (that the warrant of attorney was exhausted upon its initial use) was correct. “However, [the plaintiffs offered that] when a confession is correct in reference to the procedure, but is improperly stricken by the Court, then the authority should not be exhausted.” (Emphasis added)

In his brief in opposition to the plaintiffs’ petition to reinstate the earlier confession of judgment, the defendant argued that, inter alia, “since there [we]re issues of fact” — oral extensions for payment of delinquent amounts owed — to be resolved, the petition to open should not be denied.

By order of court dated December 11, 1991, the plaintiffs’ petition to reinstate their earlier confession of judgment was granted, but the court dismissed the defendant’s petition to open “because the confession [wa]s not conditional.” This appeal followed.

Initially, we hold that the court had the inherent power to “rescind” its earlier order granting the defendant’s petition to strike for the plaintiffs’ failure to comply with Rule 2951(b), even though the court’s action exceeded the time-frame (thirty days) within which the “correction” could be made. See 42 Pa.C.S.A. § 5505. On this point, it has been stated that:

Where equity demands, the power of the court to open and set aside its judgments may extend well beyond the term in which the judgment was entered. The Court in Hambleton v. Yocum, 108 Pa. 304 (1885), stated that “[o]rdinarily courts ... ‘may open and set aside judgments not only after a term, but after years, governed only by the facts and equity of the case.... ’ [0]ur Pennsylvania courts have full chancery powers to relieve against inequitable judgments____ [T]he power of the Common Pleas [court] to open its judgments is most ample, and the policy requiers [sic ] its liberal use.... ” Id. at 309 ...

Great American Credit Corp. v. Thomas Mini-Markets, Inc., 230 Pa.Super. 210, 326 A.2d 517, 519 (1974) (Footnotes omitted). Accord State Farm Mut. Auto. Ins. Co. v. Allen, 375 Pa.Super. 319, 544 A.2d 491, 493 n. 3 (1988).

On the strength of the remarks made by this Court in Great American Credit Corp., supra, we rule that the inequity which would be visited upon the plaintiffs because of the lower court’s erroneous grant of the defendant’s petition to strike and using the earlier order as a vehicle by which to foreclose the use of the warrant of attorney a second time, justifies the measure of relief implemented by the court to avoid an inequitable result.

To elucidate, the face of the “Bond and Warrant” provides for the collection of a penal sum and a principal sum by the obligors/plaintiffs, the latter of which is triggered by the obligor/defendant defaulting in any number of ways set forth in the document supra. On the other hand, the penal sum does not require any condition precedent to take effect in advance of the obligee/plaintiffs entering judgment on the note to maximize the collateral against which recoupment may be had upon default, which may take on as many forms as permitted by the parties to the agreement. See Rosenthal v. Richman, 406 Pa. 149, 176 A.2d 426, 427 (1962) (Footnote omitted), wherein the Court wrote on this subject that:

... in the absence of a restriction or condition to the contrary, judgment may be entered upon a warrant of attorney accompanying a bond, before the debt becomes due, but execution cannot issue until default in payment ...:
“ * * * [Jjudgment might be entered at once before any of the notes were due. The bond is, in terms, for immediate payment, though its subsequent provisions show that it is only to be collected upon a default on the notes; and the authority to confess judgment is immediate, though execution cannot issue until default.
“ * * * [A]s security, the creditor has a right to as large collateral, and as many different forms of it, as the parties chose to contract for. * * * [T]he creditor did nothing more than enter up his judgment on the bond, as part of the security agreed on. In so doing he was within his strict legal rights * *

Accord Mellon v. Ritz, 332 Pa. 97, 2 A.2d 699, 700 (1938); Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 428 A.2d 156, 159-160 (1981); General Electric Credit Corp. v. Slawek, 269 Pa.Super. 171, 409 A.2d 420, 422 n. 4 (1979); Triangle Building Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287, 1290-91 (1976).

Therefore, it was proper for the plaintiffs to exercise their rights under the “warrant of attorney” to confess judgment for the penal sum. No default had to be alleged prior to entering judgment on the note. Id.

When the plaintiffs secured a writ of execution to collect the penal sum, the defendant could file a petition to open the judgment. Cf. Citizens National Bank of Evans City v. Rosehill Cemetery Ass’n of Butler, 218 Pa.Super. 366, 281 A.2d 73, 74 (1971). Hahn did so and asserted as a defense that the plaintiffs had agreed orally to “delay indefinitely” the time period in which his delinquent payments could be satisfied. This was a meritorious defense. See STIPULATION, supra; Defendant’s Petition to Strike Off or Open Confessed Judgment at Paragraph 7; Defendant’s Brief in Support of Judgment at 2 & 6; Defendant’s Answer to Petition to Re-Argue Striking of Judgment and to Re-Instate Judgment Against Thomas W. Dennis at Paragraph 13; Defendant’s Brief in Opposition to Plaintiffs’ Petition to Reinstate Judgment at 6.

Inasmuch as a petition to open judgment is predicated upon the petitioner acting in a timely fashion and asserting a meritorious defense, see D’Amore v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966); Triangle Bldg. Supplies and Lumber Co., supra, we find that both elements have been satisfied by the defendant, especially with his contention that the plaintiffs allowed him an indefinite extension to pay his arrearages. Consequently, because the plaintiffs dispute this averment, we have a contested issue of fact going to the crux of the petition to open. As such, the court acted prematurely in denying the defendant’s petition to open in the absence of either party complying with Pa.R.Civ.P. 209. Cf. Ungate v. Passalacqua, 418 Pa.Super. 12, 613 A.2d 6 (1992). To remedy the matter, we reverse and remand for compliance with Rule 209.

Order reversed; jurisdiction is relinquished.

      . We note that the language “with or without a declaration filed” is a “relic of the ancient practice of entering all notes by amicable action prior to the Act of 1806. Since that act the prothonotary can enter a proper note without declaration though the note states ‘after one or more declarations filed.’ These words can be disregarded!.]” Rose v. Cohen, 193 Pa.Super. 454, 165 A.2d 264, 266-67 (1960) (Citations omitted).

      . The amount listed under the Praecipe For Writ Of Execution was $130,694.66, and this included attorney’s commission of $6,166.79. See Exhibit “B”.

      . The defendant’s contention of whether there was a default or whether the plaintiffs had granted him an indefinite delay to repay were reserved for later determination if the court did not dismiss the confession of judgment as conditional. See STIPULATION at 1-2.

      . The "Bond and Warrant” appears to contain the same “And further” language in the “warrant of attorney” paragraph referenced in the Dissenting Opinion of Justice Roberts in Lebanon Valley National Bank v. Henning, 436 Pa. 446, 260 A.2d 462 (1970) (Per Curiam). There, Justice Roberts attempted to convince the Majority of the Court that the “warrant of attorney” should be viewed as “conditional” so as to require the “averment of default” before confession of judgment could be entered. The Majority refused to endorse the position.
      To the same effect, the "Bond and Warrant” here, with its “And further” prefatory language in the "Warrant of Attorney” discounts its conditional nature so as to dispense with the need to file a complaint pursuant to Pa.R.Civ.P. 2951(b). No such procedure had to be followed initially by the obligee/plaintiffs, as required by the lower court but rectified with the grant of the plaintiffs’ Petition to Reinstate the Confession of Judgment.

      . In actuality, the amount sought by way of the writ was a figure more closely aligned with the principal sum listed in the "Bond and Warrant”. Nonetheless, regardless of what course the plaintiffs had pursued, to collect either the penal sum or principal sum, they would not be entitled to more than the amount of the default.
      Although judgment could be entered for the penal sum without a default being pleaded, collection of the amount via the writ of execution required a default prior to entitlement to payment. See Rosenthal v. Richman, 406 Pa. 149, 176 A.2d 426, 427 (1962); Industrial Valley Bank and Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 428 A.2d 156, 159-160 (1981).

      . It needs to be mentioned that the lower court’s dismissal of the defendant’s petition to open on the ground that the "warrant of attorney” in the "Bond and Warrant” to collect the penal sum was not “conditional” is a more appropriate response to a motion to strike, which was not before the lower court at the time. See Triangle Bldg. Supplies and Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976). Therefore, the court’s dismissal of the defendant’s petition on the ground so stated was inappropriate as a basis to deny the petition to open.


text:
    615 A.2d 90
    Dominick DILAURO, Appellant, v. ONE BALA AVENUE ASSOCIATES and Bala Realty Advisors, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 28, 1992.
    Filed Oct. 19, 1992.

      See also 357 Pa.Super. 209, 515 A.2d 939.

      Alan B. Epstein, Philadelphia, for appellant.
    Edwin L. Scherlis, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Montgomery County, following a jury verdict in favor of appellees. Appellant filed his personal injury suit seeking compensation for the injuries he sustained when he fell down a flight of stairs which he alleged were negligently constructed and maintained by appellees. The jury found that appellees were not negligent. Herein, appellant contends: 1) The verdict was against the weight of the evidence; 2) The lower court improperly charged the jury on the doctrine of assumption of the risk; 3) The lower court improperly charged the jury that the stairs where appellant fell did not have to be corrected to conform with applicable safety codes; and 4) The lower court improperly commented on the reasonable safety of the stairs in question. Having reviewed the record and the parties’ briefs, we affirm.

First, we will address appellant’s attack on the weight of the evidence. The standard for a weight of the evidence inquiry is whether the verdict is so contrary to the evidence as to shock one’s sense of justice and right must be given another opportunity to prevail. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970); Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990), appeal denied, 527 Pa. 625, 592 A.2d 45 (1991). Instantly, the record reveals the following facts: Appellant filed this action against appellees after he fell down a flight of stairs at the building known as One Bala Avenue on February 16, 1982. The concrete stairs in question descended from ground level to a landing area on the other side of which was single glass door centered between sunken drainage areas. The stairwell was comprised of nine individual steps. Appellant slipped on either the second or third step and fell down the remaining stairs to the landing below. The stairs led to an office rented by appellant’s employer and provided the only reasonable means of entry to the office.

The stairs were 132 inches wide. The risers ranged in height from &k inches to 7% inches, and the stair treads ranged in width from 9/4 inches to 9]é inches. Handrails were attached to both side walls of the stairwell.

Prior to his fall, appellant had used the stairs on at least several occasions. In fact, appellant testified that having descended the stairs before, he believed the steepness of steps presented a danger, and he knew he needed to traverse the stairs carefully. Yet, at the time of his fall, appellant admitted that he chose to descend in the center of the staircase and did not use either handrail. Appellant stated that he believed using the handrails would be more dangerous because leaves and other debris had accumulated along the walls beneath the handrails and in the drainage areas at the bottom of the stairwell. However, William Kahn, the building manager, who was at the site immediately after the accident, testified that the stairwell was free of leaves and debris. A Lower Merion Township Police report confirmed Mr. Kahn’s observations.

There was also testimony from appellant and his expert that a person could not use the handrails all the way down the stairs because of the drainage areas. At the bottom of the stairwell, a person would have to release the rail and cross to the center of the stairs before entering through the doorway.

Appellant contends that he slipped on the stairs because they were too steep, the treads were not wide enough and there was no center handrail to grasp. In support of appellant’s position, appellant’s expert testified that the stairs did not comply with the safety standards set forth in the BOCA Basic Building Codes with regard to the height of the risers, the width of the treads and the absence of a handrail running down the center of the stairwell. However, it is undisputed that the building was constructed during the 1950’s, at which time the building complied with all building codes. It is also clear that the BOCA Code was not adopted by Lower Merion Township until about 1972, and that it is not obligatory for the owners to retro-fit the building to comply with the BOCA Code.

Based on the foregoing facts, we find that there was ample testimony from which the jury could determine that appellees were not negligent. Further, the verdict does not shock our sense of justice, and, accordingly, it . must stand. Smith v. Brooks, 394 Pa.Super. at 344, 575 A.2d at 935. The record reveals that the stairwell, erected during the 1950’s, had been used for many years without incident. Appellant admitted that he was concerned that the stairs were too steep to descend safely, and, yet, he did not use either handrail on his way down the stairs. Finally, although the steps did not meet present BOCA Building Code standards, the stairs were constructed decades before that code was adopted in Lower Merion Township and were in compliance with all applicable codes at the time of their construction. The BOCA Code does not require appellees to retro-fit the stairs to bring them into compliance with the modern code. Thus, this is not a case of negligence per se. Given those facts, it is entirely proper for the jury to have determined that appellees were not negligent.

Next, appellant contends not only that the trial court erred by instructing the jury on the defense of assumption of the risk, but also that the instruction was substantively incorrect as a matter of law. Appellant is correct that all affirmative defenses, including assumption of the risk, must be pleaded in a responsive pleading under the heading “New Matter”. Pa.R.C.P., Rule 1030. However, the record does not indicate that appellant objected to the defense of assumption of the risk on the basis that it had not been properly pleaded. Even assuming such an objection was properly lodged, we find that the lower court correctly permitted the defense. A trial court may on its own motion, permit or require amendment of a pleading, except where surprise or prejudice to the other party would result. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 357, 423 A.2d 1292, 1295 (1980). Contrary to his present assertions, appellant was well aware before trial that the defense of assumption of the risk would be a central issue in this case. Appellees’ trial brief is replete with references to “assumption of the risk”. The facts of the case itself clearly indicate that appellant’s act of descending the stairs (which he admittedly thought were dangerous) without using the handrails would be questioned. Finding no surprise or prejudice to appellant, it was entirely proper for the lower court to instruct the jury on assumption of the risk. By so doing, the court, in effect, permitted amendment of appellee’s answer on its own motion.

Turning to the substance of the court’s instruction on assumption of the risk, we find no error. In his brief, appellant only quotes a portion of the court’s instruction on assumption of the risk as it applied to the facts of this case. However, viewing the court’s instruction on assumption of the risk in its entirety, we find that the instruction was a correct recitation of the applicable law. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 451, 539 A.2d 880, 881 (1988) (standard of review of jury instructions). See Jury Instruction, N.T., 6/5— 6/91, pp. 61-62, 99-100, 108, 109.

In addition, appellant argues that assumption of the risk does not apply; rather comparative negligence principles govern this case. This is a similar argument to that raised before our Supreme Court in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), wherein our high court stated:

Appellee misperceives the relationship between the assumption-of-risk doctrine and the rule that a possessor of land is not liable to his invitees for obvious dangers. When an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operated merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks. See Harper & James, The Law of Torts, Vol. 2 § 21.1 (1956); Prosser, Law of torts § 68 at 440-446 (4th ed. 1971); Restatement, supra § 496A comment c & § 496C comments b, d, & e. By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. See Joyce v. Quinn, 204 Pa.Super. 580, 585-86, 205 A.2d 611, 613 (1964); Smith v. Seven Springs Farms, Inc., 716 F.2d 1002 (3d Cir.1983). See generally Bohlen Voluntary Assumption of Risk, 20 Harv.L.Rev. 14 (1906). It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and obvious danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. See Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978) (operator of baseball park owes no duty to guard against common, frequent, and expected risks of baseball; duty extends only to foreseeable risk not inherent in baseball activity).
Viewed in this context, appellee’s claim based on the comparative negligence statute must fail. For fault to be apportioned under the comparative negligence statute, there must be two negligent acts: a breach of duty by the defendant to the plaintiff and a failure by the plaintiff to exercise care for his own protection. Whatever the effect of the adoption of a system of comparative negligence, the adoption of such a system has no effect where, as here, the legal consequence of the invitee’s assumption of a known and avoidable risk is that the possessor of land is relieved of a duty of care to the invitee. See Schwartz, Comparative Negligence § 9.4 at 168-69 (1974).

Carrender, 503 Pa. at 189, 469 A.2d at 125.

The present case is analogous to Carrender, supra. Appellant admitted that he was concerned that the stairs were dangerously steep and that he should proceed with caution. Nevertheless, appellant proceeded voluntarily down the center of the stairwell, rather than opt for the reasonably safe alternative course down the side of the stairwell while holding onto the handrail. Simply, appellees did not owe appellant a duty to protect him from the “obviously” steep stairs or, in other words, appellant assumed the risk of descending down the center of the stairs. Cf., Carrender, 503 Pa. at 189, 469 A.2d at 125; Malinder v. Jenkins Elevator and Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988); Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 577 A.2d 894 (1990).

Moreover, our assessment of appellant’s assertions of error regarding assumption of the risk is hampered by the nature of the verdict. The jury specifically determined that appellees were not negligent. Therefore, it is entirely possible that the jury determined that the stairs in question were not even dangerous, thus obviating the need to inquire further into the issues of the landowner’s duty to invitees or assumption of the risk. In spite of his apparent concern with the instruction on assumption of the risk, appellant did not request a special verdict which would have clearly illuminated the basis upon which the jury determined that appellees were “not negligent.” In view of appellant’s failure to request special interrogatories which would have revealed whether the jury found the steps to be dangerous, whether appellees owed appellant a duty to protect him from the stairs or whether appellee assumed the risk, we cannot find error below upon which we would reverse the judgment. Even if we assume arguendo that the court erred in instructing on assumption of the risk, the fact that a viable theory of defense existed, i.e., the steps were not dangerous, requires our affirmance. See Connelly Containers, Inc. v. Pennsylvania railroad, 222 Pa.Super. 7, 292 A.2d 528 (1972) (where it could not be determined whether jury found for plaintiff on one of two viable theories or an erroneous one, failure of defense to request a special verdict required affirmance, especially in light of relative strength of legitimate theories of recovery); compare Century 21 Heritage Realty, Inc. v. Bair, 386 Pa.Super. 373, 563 A.2d 114 (1989) (reversible error for court to refuse special verdict request where one of two theories of recovery was erroneous).

Appellant also contends that the court erred when it instructed the jury that the stairs did not have to be corrected in order to conform with the construction codes in effect at the time of appellant’s fall, specifically the BOCA Building Code. However, this allegation is belied by the record. Appellant’s counsel specifically conceded that the BOCA Building Code does not require that structures constructed prior to the enactment of the Code be retro-fitted into compliance. N.T., 5/30/91, pp. 28-30; N.T., 6/4/91, pp. 196-197. Further, he did not object when the court instructed the jury that, “The BOCA Code is mandatory concerning the construction of buildings built after 1972. The BOCA Code does not require or obligate the owner of existing buildings to change the structure of a building to meet those recommendations, which may be set forth in that Code.” N.T., 6/5-5/91, p. 105. Since appellant agreed at trial to the substance of that statement and failed to object to that instruction, we will not presently entertain this assertion of error. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Finally, appellant complains that the trial court improperly commented on the reasonable safety of the stairwell. Specifically, appellant complains that the court suggested that a center handrail for a stairwell need only be supplied when there was a high amount of traffic on the stairs, thus, necessitating additional handrails. Testimony at trial indicated that the BOCA Code would require a center handrail on newly constructed stairs of the same width as those in question. However, our review of the record reveals that the court’s comments were made in an effort to clarify hypothetical questions asked of both appellant’s and appellee’s experts. N.T., 5/30/91, pp. 53-55; 6/4/91, pp. 219-220. This is exactly the court’s function. Reimer v. Tien, 356 Pa.Super. 192, 202, 514 A.2d 566, 571 (1986).

Having determined that appellant’s assertions of error are without merit, we affirm the judgment entered in favor of appellees.

Judgment affirmed.

      . Mr. Kahn also testified that while leaves and debris did accumulate in the stairwell, they were cleaned out daily.

      . The record does reveal that appellant was granted a general objection to all those points for charge which were submitted by appellees and which were actually given to the jury by the court. N.T., 6/5-6/91, p. 43. It is unclear from that objection whether appellant objected to the instruction on assumption of the risk on the grounds of timeliness, or that the substance of the instruction was incorrect or that the applicability of the doctrine of assumption of the risk has been questioned in Pennsylvania.

       Appellee also argues that the defense of assumption of risk was abrogated altogether by this Court's decision in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). In Rutter, Mr. Justice Flaherty filed an opinion urging the abrogation of assumption of risk as a defense, which was joined by Mr. Justice Larsen and Justice Kauffman. Chief Justice O’Brien concurred in the result. This writer filed a dissenting opinion as did Mr. Justice Nix, and Justice Wilkinson joined in both dissenting opinions. The reasoning of this opinion is consistent with the opinion of Mr. Justice Flaherty in Rutter, which specifically noted that a holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty. See Rutter, supra, 496 Pa. at 613, 437 A.2d at 1209. See also Atkins v. Urban Redevelopment Auth. of Pittsburgh, supra, 489 Pa. 344, 414 A.2d 100.

      . For duty owed by a possessor of land to an invitees see Restatement (Second) of Torts, §§ 343, 343A.

      . We note that the court did instruct the jury that, "If you find that there was a deviation from [the BOCA Code], it may be evidence of negligence which you should consider, along with all the other evidence presented on the question of whether or not the defendants were negligent.” N.T., 6/5-6/91, pp. 80-81.


author: BECK, Judge:

text:
    615 A.2d 95
    PENNRIDGE ELECTRIC, INC., Appellant, v. SOUDERTON AREA JOINT SCHOOL AUTHORITY.
    Superior Court of Pennsylvania.
    Argued June 4, 1992.
    Filed Oct. 20, 1992.

      John Elliott, Blue Bell, for appellant.
    Wilhelm L. Gruszecki, Lansdale, for appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   BECK, Judge:

Plaintiff-appellant Pennridge Electric, Inc. appeals from the order of the trial court granting defendant-appellee Souderton School Authority, Inc.’s petition for Non Pros Judgment in this 18-year old lawsuit. For the reasons set forth below, we affirm.

This case has had a tortuous history. We adopt the trial court’s description of it as follows:

Plaintiff, Pennridge Electric, Inc., filed a Complaint on October 16, 1973, against defendant, Souderton Area School Authority and several members of the School Authority as individual defendants. Plaintiff alleged that defendants wrongfully declared the plaintiff in default on an electrical contract bid on April 21, 1972____ Plaintiff claimed that defendants’ wrongful demand for the amount of the bid bond subsequently inhibited plaintiffs ability to secure bond coverage for other bids. Thus, plaintiff contended, it was unable to bid on many subsequent contracts resulting in lost profits in excess of $100,000.
From the date of the filing of the Complaint in 1973 until 1983 several motions were filed by both parties and discovery was conducted. On December 28, 1982 counsel for both parties agreed to an Order of the court to continue the case indefinitely. Such a continuance Order was never revoked.
The last pleading in this case prior to 1988 was filed on December 5,1983. No further action was taken in the case until March 28,1988 when plaintiff filed a Praecipe requesting that the court withdraw the plaintiffs prior motion to disqualify the law firm that was representing the defendants.
Defendants filed a Petition for Non Pros Judgment with this court on June 13, 1989, alleging that plaintiffs inaction for over four years constituted abandonment of the suit. Plaintiff, on July 11, 1989, filed Preliminary Objections to the defendants’ Motion. The Preliminary Objections were dismissed on February 21, 1990 for being procedurally improper.
Oral argument on the Petition for Non Pros Judgment filed June 13, 1989, was held on June 8, 1990. This court issued an Order on September 5,1990, deferring disposition on the petition in order to give plaintiffs counsel the opportunity to substantiate through deposition testimony his allegation that the four year delay was due to ongoing settlement negotiations. Following the completion of such depositions, oral argument on the Petition for Non Pros Judgment was again held on August 12, 1991. On October 11, 1991, this court granted defendants’ Petition for Non Pros Judgment filed June 13, 1989, and on November 7, 1991, plaintiff filed its Notice of Appeal.

Trial Court Opinion, pp. 2-3 (footnote omitted).

Appellant claims that the trial court’s grant of defendantappellee’s motion for non pros was erroneous for the following reasons: (1) the trial court misapplied the standard for non pros; (2) the delay in the case was caused by good-faith efforts to settle the case, administrative errors of the court in failing to list the case for trial, and a continuance to which appellees consented; (3) appellees created delays in the case constituting waiver of appellant’s delay; and (4) as to Pa. R.C.P. 209, appellees failed to follow proper procedure on petition and rule, which should have resulted in the trial court’s finding appellant’s statement of facts in its response to the motion to be deemed conclusive. Appellant’s Brief pp. 2-3.

It is well-settled law that the decision to grant a judgment of non pros rests within the discretion of the trial court, and the exercise of such discretion will not be disturbed on appeal absent proof of a manifest abuse thereof. Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992); Gallagher v. Jewish Hospital Ass’n, 425 Pa. 112, 228 A.2d 732 (1967). We have carefully reviewed each of the issues raised by appellant. We find no manifest abuse of discretion, and therefore affirm.

Our Supreme Court recently addressed the requirements for a judgment of non pros in Penn Piping. In that case, the court re-examined the three-part test for non pros enunciated in James Brothers Lumber Co. v. Union Banking and Trust, 432 Pa. 129, 247 A.2d 587 (1968). The James Bros. test permitted a court to enter a judgment of non pros where “(1) a party has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and (3) the delay has caused prejudice to the adverse party.” 432 Pa. at 132, 247 A.2d at 589.

In Penn Piping, the Supreme Court affirmed the first two prongs of the test, but modified the third, stating:

in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket. Thus, if there is a lack of due diligence in failing to proceed with reasonable promptitude; if there is no compelling reason for the delay; and if the delay is for two years or more, the case may be dismissed for lack of activity on the docket.

Ibid.

The period of docket inactivity in this case lasted from December 5, 1983 through March 28, 1988. The trial court found that a delay in docket activity of more than four years demonstrated a lack of due diligence on the part of plaintiffs counsel, and we agree. See, Penn Piping, supra (delay of six years); International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Super. 378, 378 A.2d 986 (1977) (two years, nine months). Appellant claims that this period of delay was due to ongoing settlement negotiations between the parties, which appellant avers to be a compelling reason for the delay.

We disagree. Absent extraordinary circumstances, it is hard to imagine any reason to permit settlement negotiations to continue without result for this long at the expense of any activity on the docket. The law favors settlement, and while counsel should be permitted a reasonable period of time in which to attempt to work out an amicable resolution, at some point the knowledge that there is no deadline on the negotiations serves to impede, rather than promote, settlement. It is often the prospect of vigorous litigation to ensue should the settlement negotiations break down that prompts the parties to engage in serious discussion as to what issues divide them and whether or not they can be resolved.

The facts of the instant appeal demonstrate the dangers of too-protracted settlement negotiations. Depositions taken of the attorneys on both sides of the matter show that, while the attorneys did discuss settlement with each other in the four and a half year period of delay, these conversations occurred sporadically, infrequently, and without any subsequent progress in negotiations. Some of the discussions took place in a mall and at a wrestling tournament. Attorney for appellant testified that opposing counsel told him as early as July of 1984 that “he was meeting resistance at any talk of settlement,” and that at the end of the year, opposing counsel stated “that [defendant] was only willing to consider a very nominal cash settlement.” Appellant’s attorney stated that at that time he believed the possibilities for settlement were bleak.

In 1985, appellant’s attorney formulated a settlement proposal that he discussed with appellee’s counsel, but was told by appellee’s counsel that there was no possibility his clients would agree to pay the figure demanded. Appellant’s attorney recalled that the case was discussed again briefly in 1986, but to no effect. Finally, in early 1987, appellee’s counsel told him that the case was going to have to be tried because nothing they were discussing was in the range of what was acceptable to both parties.

Attorney for appellee testified that, in his opinion, there was never any real likelihood of settlement. After review of his time sheets for that period, he recalled that he did have settlement discussions with appellant’s counsel, but that he never considered the conversations to be meaningful because the parties were too far apart in their positions to make settlement a realistic possibility.

As to any written communication, we note that there was apparently no correspondence between the parties in the period of delay between December, 1983 and March, 1988 that references a settlement proposal. Appellant attributed the lack of correspondence to the informal, “diplomatic” way in which settlement negotiations were being conducted.

The trial court found that, based on the deposition testimony of the two counsel, it was apparent that the parties were never close enough in their figures to reasonably believe that a settlement was possible. Trial Court Opinion, p. 13. The court concluded that “to allow these types of discussions to continue for more than four years before concluding that a settlement could not be reached was not appropriate.” Id. We agree. We therefore reject appellant’s claim that the settlement discussions here constituted a compelling reason for the delay in this case.

Appellant has identified three other factors that it claims either excuse the four-and-a-half year delay or constitute a waiver of any delay by appellee: (1) the failure of the court administrator to place the case on the trial list, despite the court’s order to do so; (2) appellee’s agreement in 1982 to a continuance of the case; and (3) appellee’s filing a motion for summary judgment in August, 1983, which appellee failed to have listed for argument. We do not find that the occurrence of these events, either singly or in combination, prevents an entry of non pros. Litigation by its nature is filled with events that create delay. Nonetheless, the law is settled that it is plaintiffs burden to move a case to trial, and it is plaintiff, not defendant, who bears the risk of not acting within a reasonable time. Penn Piping, supra, 529 Pa. at 357, n. 3, 603 A.2d at 1009, n. 3; Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 520 A.2d 891 (1987), alloc. den., 515 Pa. 623, 531 A.2d 431 (1987); Kennedy v. Bulletin Company, 237 Pa.Super. 66, 346 A.2d 343 (1975). If plaintiffs counsel finds herself faced with delays created by others, she must take action to move the case forward, such as filing praecipes for argument on undecided motions, moving to compel her opponent to file a certificate of readiness, or requesting a conference with the judge as provided by local rule to have the case put on the trial list. See Penn Piping, supra, 529 Pa. at 357, n. 3, 603 A.2d at 1009, n. 3.

The final requirement for entry of a judgment of non pros is that the delay be prejudicial to defendant. Appellant claims that appellee has not demonstrated any actual prejudice from the delay in this case; appellant avers that the witnesses and documents appellee claims are no longer available because of the delay in this case are not necessary to appellee’s defense of its position. We find that, under Penn Piping, where the delay in the case is greater than two years, a lack of actual prejudice is not a bar to the entry of a judgment of non pros.

Our Supreme Court stated in Penn Piping that the issue presented by that case was whether appellant’s docket inactivity for six years was “presumptively prejudicial” under the 1970 case of Shrum v. Pennsylvania Electric Co., 440 Pa. 383, 269 A.2d 502 (1970). The court cited approvingly language from Shrum to the effect that a judgment of non pros might have been entered in that case despite the lack of a showing of prejudice, since “[s]ome delays are presumptively prejudicial, and in these cases actual prejudice need not be shown.” Penn Piping, 529 Pa. at 356, 603 A.2d at 1009. The Penn Piping court described this class of cases as follows: “[W]e hold that in cases involving a delay for a period of two years or more, the delay will be presumed prejudicial for purposes of any proceeding to dismiss for lack of activity on the docket.” Id., 529 Pa. at 356, 603 A.2d at 1009.

The court in Penn Piping appears to adopt a per se rule in which delay in excess of two years establishes prejudice sufficient to satisfy the third prong of the non pros test. We note, however, that in its actual application of this part of the test, the court took as the measure of “delay” not the period of inactivity on the case docket, but rather the period of unexplained docket inactivity. The court analyzed the six-year docket delay as follows:

Two years of the six year delay were explained to the satisfaction of the trial court by [plaintiffs] involvement in a Chapter 11 bankruptcy proceeding. Four years, however, remain unexplained. Since the four year unexplained delay exceeds two years, the trial court did not abuse its discretion in dismissing the case.

529 Pa. at 357, 603 A.2d at 1009 (emphasis added). Although the period of docket inactivity was six years, the period of delay to be evaluated against the two-year requirement was only four years. Presumably, if plaintiff had been in bankruptcy for five years, the presumptive finding of prejudice would not have been made.

We must add that the circumstances under which a court will reduce the period of docket inactivity as set forth above are limited. The circumstance in Penn Piping was the plaintiffs involvement in a bankruptcy proceeding; the court in another part of the opinion declared bankruptcy to be a “compelling reason” for delay, along with delays caused by liquidation or other operation of law, or by the parties’ awaiting significant developments in the law. 529 Pa. at 356, n. 2, 603 A.2d at 1009, n. 2. It appears that to qualify as a reason for delay that will toll the running of the two-year period, the circumstance alleged must be something that would qualify as a “compelling reason for delay.” In a companion case issued nine days after Penn Piping, Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992), the court found the first two prongs of the non pros test met and then said, as to the third, “[T]he delay exceeded two years; and the reason for the delay does not implicate the compelling reasons set out above.” 529 Pa. at 363, 603 A.2d at 1012 (emphasis added). We read this language to suggest that, had there been a compelling reason for the delay, the period of time attributable to that reason would have been deducted from the period of docket inactivity for purposes of determining whether the delay exceeded two years and was therefore prejudicial.

In the case sub judice, appellant has offered no compelling reason that would warrant our reducing by any amount the period of inactivity on the docket. The period of docket inactivity in this case was over four years. Since four years is longer than two years, prejudice is presumed, and the third and final prong of the non pros test has been met.

Appellant’s final argument on appeal is that appellee failed to follow mandated procedure on petition and rule, with the result that appellant was entitled to certain evidentiary benefits that the trial court erroneously failed to accord it. Appellant claims that, pursuant to motion practice under Pa.R.C.P. 209, once the responding party (in this case, appellant) denies the factual allegations of the moving party (in this case, appellee), the moving party is required to take depositions in support of its position or suffer a finding that the responding party’s statement of the facts is conclusive. Specifically, appellant claims that the trial court should have taken as dispositive the statements in appellant’s response that settlement discussions were ongoing during the period in which it was alleged that plaintiff-appellant had failed to prosecute the case with due diligence. Appellant’s Brief, pp. 26-27; see also Appellant’s Reply Brief, pp. 9-10. We disagree.

First, we note that the factual premise of appellant’s argument is wrong: appellee did take depositions, jointly with appellant, on precisely the issue of whether settlement negotiations were ongoing in the critical time period. However, appellant finds these depositions to be ineffective for purposes of Rule 209 because they were taken pursuant to the order of the trial court, issued at initial oral argument, rather than at appellee’s own initiative. We find this fact to be irrelevant to the applicability of Rule 209 to this case.

Pennsylvania Rule of Civil Procedure 209 provides as follows:

If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule), the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

The provisions of Rule 209 are very specific, and operate only when the specific conditions set forth therein obtain. As this court observed in Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa.Super. 176, 374 A.2d 1376 (1977):

Under the rule, it is true, the factual averments of a responsive answer may be taken as true against a petitioner, but that is to happen only upon the occurrence of one of two contingencies: either the petitioner himself ordering ‘the cause for argument on petition and answer,’ or respondent ordering the cause down after petitioner has ignored, for fifteen days, a rule absolute made upon him to move for depositions. There is no provision in the rule for shortcut-ting its operation by ignoring these contingencies.

248 Pa.Super. at 182, 374 A.2d at 1379 (emphasis added). Accord, National Recovery Systems v. Monaghan, 322 Pa.Super. 183, 469 A.2d 244 (1983) (only when the petitioner himself orders the cause for argument on the pleadings or when the petitioner ignores a rule absolute to move for depositions can the factual averments of a responsive answer be taken as true against the petitioner); Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982); Owens v. McCurdy, 304 Pa.Super. 510, 450 A.2d 1028 (1982).

The specific requirements for the operation of Rule 209 desired by appellant have not been met here. In this case, it was the court, not petitioner, who ordered argument on the motion for non pros; and once depositions were ordered, appellee proceeded to take them as ordered. Appellant is therefore not entitled to have the factual averments of its response to the petition for non pros taken as true against petitioner-appellee.

Appellant also claims that Montgomery County Local Rule 209(c) mandates taking the averments of its response to be conclusive. Again we disagree. Local Rule 209(c) provides as follows:

Effect of Failure to Testify or Furnish Depositions — Whenever an averment of fact in a petition is denied in one of the forms set forth in Pa.R.C.P. 1029, or whenever the answer shall contain new matter so entitled, the denial or new matter shall be deemed admitted unless the petitioner shall support his petition (a) by testimony, in the event that a judge shall fix a time for the taking thereof, or (b) by depositions filed at least ten (10) days before the time finally fixed for hearing argument of the matter.

Local courts have the power to formulate their own rules of practice and procedure, which will be given weight equal to the rules established by our Supreme Court provided that they do not abridge, enlarge, or modify substantive rights of a litigant. Grossman v. Mitchell, 291 Pa.Super. 385, 435 A.2d 1280 (1981). Like any other rules of court, local rules should be liberally construed to secure “the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Gutman v. Rissinger, 334 Pa.Super. 259, 267, 482 A.2d 1324, 1328 (1984). We find that appellee here did support his petition by deposition testimony as ordered by the trial judge, in substantial compliance with Local Rule 209(c). Therefore, this rule does not provide appellant the evidentiary benefit it claims.

Having found appellant’s claims to be meritless, we- affirm the order of the trial court.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . Appellant also filed a reply brief reiterating arguments raised in his original brief; no additional issues were raised therein.

      . Reargument was held after depositions were taken, at which time the court considered the deposition testimony.

      . We note that the Supreme Court of Pennsylvania Civil Procedural Rules Committee has recently promulgated proposed changes to Rule 209. See Pa.Bulletin, Vol. 22, No. 29, p. 3730 (July 18, 1992). Counsel should therefore be alert to possible changes in the rule.


author: FORD ELLIOTT, Judge.

text:
    615 A.2d 102
    COMMONWEALTH of Pennsylvania v. Rodney L. MORDAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1992.
    Filed Oct. 21, 1992.
    Petition for Allowance of Appeal Granted Feb. 17, 1993.

      Stephen S. Pennington, Philadelphia, for appellant.
    Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge.

Rodney Mordan, a deaf mute, was found guilty following a bench trial of driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. On appeal, three issues are raised for our review: (1) whether a deaf mute has the right to a sign language interpreter upon arrest for driving under the influence so that the statutory right to refuse the test may be exercised; (2) whether the violation of the right to a language interpreter requires the suppression of the breathalyzer test results; and (3) whether admission of the breathalyzer test result into evidence was harmless error. We hold that a deaf motorist is not entitled to a sign language interpreter prior to submission to a breathalyzer test so that defendant can make an informed choice as to whether to take the test, and that the breathalyzer results will not be suppressed because the services of an interpreter were not provided before the motorist submitted to the test.

On November 18, 1989, at about 11:20 p.m., Officer James Crawford of the Lower Providence Township Police Department observed appellant driving west on Egypt Road in Lower Providence Township, Montgomery County, and following three to five feet behind another vehicle. As the officer attempted to stop the vehicle, he observed that it went up and over a curb before stopping.

When the officer approached Mordan’s vehicle, on the driver’s side, he smelled alcohol on the appellant’s breath and observed that his eyes were blood shot. The officer also saw a twelve-pack of beer from which several cans were missing on the floor of the passenger side of the vehicle.

When the officer requested that appellant produce his driver’s license, the officer noticed appellant pointing to the address on the license and making noise as if he was trying to speak; he also motioned for something to write upon. The officer realized that appellant was deaf and mute. The officer gave appellant a notepad upon which to write. The officer then communicated to appellant in writing to inform him of the reason for the stop, to request his registration and insurance card, and to instruct him on performing the field sobriety tests. The officer also physically demonstrated the sobriety tests. Appellant produced the registration and insurance cards and performed the sobriety tests which he failed.

Officer Crawford placed appellant under arrest and informed appellant in writing that he would be taken to the West Norriton Police Department for a breath test. At the station, appellant was informed both orally and in writing that if he refused to take the breathalyzer test he would lose his license for one year. Mordan submitted to the breathalyzer test and registered a .13 and .14 on two successive tests.

At the hearing on the motion to suppress, the trial court determined as a fact that appellant did not understand that he could have refused to submit to the breathalyzer tests because he could not read lips and could not read well enough to have understood that he could have refused to take the breathalyzer.

The suppression motion was denied and appellant was found guilty during a bench trial of driving under the influence. Appellant filed a motion for a new trial and in arrest of judgment. Following arguments on the motion before a court en banc consisting of the Honorable William W. Vogel, P.J., and the Honorable William H. Yohn, appellant’s motions were denied. Appellant then timely filed this appeal.

The first issue raised by appellant is one of first impression in this Commonwealth. Appellant frames the issue as whether a deaf individual has the right to an interpreter so that he may communicate with a police officer for the purpose of exercising his statutory right to refuse a breathalyzer test and to be advised of the consequences of a refusal. Appellant argues that a deaf person has a right to a sign language interpreter so that he can meaningfully participate in proceedings which are available to hearing persons.

Section 1547 of the Vehicle Code states, in part:

(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both;
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.
(2) It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.

75 Pa.C.S.A. § 1547(a), (b).

“[A]s a condition of maintaining a driver’s license in this Commonwealth, all drivers are subject to the implied consent requirements of the Motor Vehicle Code and must submit to blood and breath tests under appropriate circumstances.” Commonwealth v. O’Connell, 521 Pa. 242, 251, 555 A.2d 873, 877 (1989). Where an officer has reasonable grounds to believe that a motorist is driving while under the influence of alcohol, the driver may properly be requested to submit to a chemical test of blood, breath or urine to determine the alcoholic content of the blood. Commonwealth v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). When appellant was granted the privilege to drive upon Pennsylvania roadways, he agreed to submit to chemical testing in the event that a police officer had reasonable grounds to request such a test by implied consent. Section (b)(1) of 1547, however, permits a motorist to refuse a chemical test, thereby revoking implied consent to submit to the test. It is well established that no constitutional right to refuse testing exists. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), this court stated:

While the legislature has provided by statute that a driver, whom the police have probable cause to believe has been operating a vehicle while under the influence of alcohol, may refuse to submit to a chemical test for blood alcohol content, this right of refusal is not a constitutional right but rather is created solely by operation of the statute. ‘Neither the Fourth Amendment bar against unreasonable searches and seizures nor Fifth Amendment privilege against self-incrimination prevents the Commonwealth from requiring that a driver submit to a breathalyzer test. A driver therefore does not have a constitutional right to refuse. He has no right to refuse other than as provided in the implied consent law. Neither the Fourth nor Fifth Amendments prevents the admission into evidence of test results or of refusal____ A driver has no right to have evidence either of the test results or of the refusal excluded....’

Id., 380 Pa.Super. at 359, 551 A.2d at 1092-1093 (citations omitted).

Instantly, the evidence presented reveals that appellant drove his vehicle over a curb before stopping, the officer smelled alcohol on appellant’s breath, and observed that appellant’s eyes were red, empty beer cans were visible inside the vehicle and appellant failed the sobriety tests. We are satisfied that the Commonwealth met its burden under 75 Pa. C.S.A. § 1547(a)(1) to show that the officer had reasonable grounds to believe that appellant was driving under the influence of alcohol; hence, where an officer reasonably believed that appellant was driving under the influence, appellant, like any other motorist, shall be deemed to have given consent to at least one test of blood, breath or urine for the purpose of determining the alcoholic content of the person’s blood. See Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185, appeal denied, 524 Pa. 607, 569 A.2d 1366 (1989) (Section 1547(a)(1) of the Vehicle Code permits a chemical test of a suspect’s blood, without the suspect’s consent, if the officer has reasonable grounds to believe that the suspect was driving under the influence of alcohol).

Appellant concedes that informed consent is not required under Section 1547; nevertheless, he argues that an interpreter should have been provided so that he could exercise his statutory right to refuse the test and be informed of the consequences of a refusal. Appellant further contends that it is the law in Pennsylvania that a deaf person has a right to an interpreter during an interrogation and criminal proceedings. The statute states:

(a) Interrogation. — Upon the arrest of any deaf person, and prior to interrogation, the arresting officer shall make available to such person an interpreter who shall be present with such person throughout the interrogation.
(b) Criminal proceeding. — In any criminal proceeding in which a defendant is deaf the court shall appoint an interpreter to assist the defendant throughout the proceeding.

42 Pa.C.S.A. § 8701(a), (b). Participation in a breathalyzer test is not the equivalent of an interrogation, nor is it a criminal proceeding. During an interrogation, the objective is to obtain incriminating statements. “Requiring a driver to perform physical tests or to take a breath analysis test does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial, and therefore, no Miranda warnings are required.” Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383, 387 (1980). If the result of a breathalyzer was considered testimonial evidence or an incriminating statement, then Miranda warnings would be required before the test was administered. Moreover, submission to a breathalyzer is not considered a criminal proceeding. The implied consent law codified at section 1547 of the Vehicle Code is not penal in nature and is designed to protect the public by providing an effective means of denying intoxicated motorists the privilege of using the roads. Commonwealth v. Hill, 379 Pa.Super. 34, 549 A.2d 583 (1988), allocatur denied, 521 Pa. 618, 557 A.2d 721 (1989); Hando v. Commonwealth, 84 Pa.Cmwlth. 63, 478 A.2d 932 (1984). The driver’s license suspension proceeding by the Department of Transportation for a refusal to take a breathalyzer test is an independent civil proceeding separate and distinct from any criminal charges brought against a motorist. Hando, supra. Although the results of the breathalyzer test may be used in a criminal proceeding against appellant, the breathalyzer, itself, is not a criminal proceeding. Since a breathalyzer test is not considered an interrogation or a criminal proceeding within the meaning of 42 Pa.C.S.A. § 8701, we cannot hold that deaf persons have a constitutionally protected liberty interest to an interpreter before exercising a refusal to submit to a breathalyzer test.

Instantly, the trial court aptly rephrased the issue as whether any driver to whom implied consent applies must knowingly decline to exercise his statutory right to refuse to submit to the breathalyzer, or are breathalyzer tests results inadmissible in cases where the driver’s submission was not a knowing one? Responding to this question in the negative, the trial court commented:

We recognize that if Mr. Mordan had refused to take the breathalyzer test, his driver’s license could not be suspended since he would not have understood the consequences. Defendant, however, attempts to extend the knowing requirement in the situation where a defendant refuses to take the breathalyzer test and then contests the automatic license suspension to the situation wherein a defendant submits to the breathalyzer and then contests the validity of the implied consent. These two situations are entirely different since, as previously mentioned, the statute does not require an informed consent although it does require an informed refusal....
.... The Pennsylvania legislature did not intend that there be a knowing submission to the breathalyzer test by virtue of its reference to the possibility of refusal in its implied consent law of section 1547 of the Motor Vehicle Code.

Trial court opinion, 5/1/91 at 13-14. We agree. Section 1547 of the Vehicle Code does not require that a motorist’s consent to the breathalyzer test be informed, it only mandates that appellant be warned that a refusal would result in the revocation of the driver’s license. See Commonwealth v. Gaertner, 138 Pa.Commwlth.Ct. 423, 589 A.2d 272 (1991) (the Commonwealth Court held that the refusal of a deaf motorist to submit to chemical testing for driving under the influence was not the product of a knowing and conscious decision).

Without precedent directly on point to guide its decision, the learned trial court ventured outside Pennsylvania jurisprudence and found the rationale persuasive in the Oregon appellate court case State v. Weishar, 78 Or.App. 468, 717 P.2d 231, review denied, 301 Or. 338, 722 P.2d 737 (1986). In Weishar, a hearing impaired motorist was arrested after exhibiting signs of intoxication and failing field sobriety tests. Weishar wore a hearing aid. At the jail, the officer asked Weishar to take an intoxilyzer test. Before the test was administered, the officer and another police employee attempted to inform Weishar of information required by Oregon’s former implied consent law, which was in effect at the time of his arrest, by reading a form to Weishar containing the information. At a pretrial hearing, Weishar moved to have the results of the intoxilyzer suppressed alleging that the officers violated a law requiring them to obtain the services of interpreter for handicapped persons prior to any interrogation or the taking of a statement. The results were suppressed because, among other things, the suppression court concluded that Weishar had not been informed of his right to refuse to take the breath test and the officer failed to secure an interpreter to properly communicate to Weishar his rights.

On appeal, the Oregon appeals court reversed and held that the law requiring the police to obtain the services of an interpreter to provide Weishar a reasonable opportunity to understand his rights was not applicable to the case, despite his argument that his special physical circumstances prevented him from being adequately informed of the information required by the former implied consent law. The court reasoned that even though Weishar fit within the definition of a handicapped person, the law only requires the police to obtain an interpreter before an interrogation or the taking of a statement. Since the submission to an intoxilyzer test is non-testimonial, it does not include interrogation nor does it involve taking a statement. In our case, appellant made a similar argument which we rejected for analogous reasons.

Reviewing the history of cases interpreting that state’s implied consent law, the Oregon appellate court in Weishar further opined:

A threshold difficulty in discerning the legislative intent embodied in ORS 487.805 [Oregon’s implied consent law] is not simply that the concept of implied consent is a ‘statutory fiction,’ [State v.] Scharf, 288 Or [451] at 457 [605 P.2d 690], but that the fiction appears to be theoretically contradictory. An enigma appears to be at the heart of the law: If, under subsection (1), a driver has impliedly consented to a breath test which, under subsection (2), he may nevertheless refuse, then ‘the licensee-driver has not impliedly consented to anything.’ ...
The contradiction disappears, however, when it is realized that the words ‘consent’ And ‘refusal’ are not used as antonyms, because they are not used in the same sense. ‘Consent’ describes a legal act; ‘refusal’ Describes a physical reality. By implying consent, the statute removes the right of a licensed driver to lawfully refuse, but it cannot remove his or her physical power to refuse. As another court put it:
The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is ‘deemed to have given consent’ is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates.
‘... it is firmly established that a drunken driver has no right to resist or refuse such a test [citations]. It is simply because such a person has the physical power to make the test impractical, and dangerous to himself and those charged with administering it, that it is excused upon an indication of his unwillingness. * * * ’ Bush v. Bright, 264 Cal.App.2d 788, 790, 792, 71 Cal.Rptr. 123 at 124, 125 (1968) (original emphasis).
‘Thus refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive. The purpose of a warning of license suspension following a refusal is to overcome an unsanctioned refusal by threat instead of force. It is not to reinstate a right to choice, let alone a voluntary and informed choice, but rather to nonforcibly enforce the driver’s previous implied consent.’ [State v. Newton,] 291 Or. [788] At 791, 636 P.2d 393.

Weishar, 717 P.2d at 234, 235 (citations and footnotes omitted; emphasis in original).

The Weishar court also relied upon the rationale of an earlier Oregon Supreme court case wherein it stated:

“While the statute recognizes that a person may refuse to submit to the test, the legislature could hardly have contemplated that it was necessary that there be a completely knowing and understanding submission. If this were the case, the only people who could be tested would be those who were not sufficiently intoxicated to interfere with their mental processes.’ [State v. Fogle ], 254 Or. 268, 270, 459 P.2d 873 (1969).

Weishar, 717 P.2d at 235.

The court, in Weishar, concluded that the officer attempted to convey to Weishar the information provided on the form regarding the implied consent law. The law, however, did not require that a defendant make a completely knowing and understanding submission to the breath test, and the officer performed his statutory duty and informed Weishar of the necessary information pursuant to the Oregon implied consent law which is all that the law requires. Therefore, the trial court had erred in suppressing the results of Weishar’s intoxilyzer test.

We find the reasoning set forth in the Weishar opinion to be especially instructive and pertinent to the resolution of the case sub judice. The implied consent law contained in Section 1547 of the Vehicle Code states that “[i]t shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended upon refusal to submit to chemical testing.” 75 Pa.C.S.A. 1547(b)(2). The implied consent law imposes the duty upon the officer only to apprise the motorist of the consequences of a refusal to take the breath test. No where does the law require the officer to make certain that the motorist understands that he could exercise a right to refuse a breathalyzer test when he consents to the test. Appellant has a right to a knowing and conscious refusal before his license is suspended, but not a right to a knowing and conscious submission to the breath test. Here we are concerned only with whether the results of the blood tests may be admitted.

Since we have determined that appellant did not have a right to a sign language interpreter so that he could make a knowing submission to the breathalyzer test, or so that he could understand that he had a right to refuse the breathalyzer test, appellant’s remaining claims that the test result should be suppressed, and whether the admission of the test result into evidence was error, do not require separate analysis.

Therefore, we affirm judgment of sentence.

      . There is no question presented under the instant facts that the officer had sufficient probable cause under 75 Pa.C.S.A. 1547 to believe that appellant was operating his vehicle under the influence of alcohol. See Commonwealth v. Sharon Louise Danforth, 395 Pa.Super. 1, 576 A.2d 1013, appeal granted, 526 Pa. 647, 585 A.2d 467 (1990); Commonwealth v. Kohl, 395 Pa.Super. 73, 576 A.2d 1049, appeal granted, 526 Pa. 630, 584 A.2d 313 (1990). On September 16, 1992, both cases were affirmed by the supreme court in one opinion at Nos. 183 and 188 Eastern District Appeal Docket 1990 and No. 11 Eastern District Appeal Docket 1991 respectively.

      . We note, however, that in Commonwealth v. Eisenhart, 531 Pa. 103, 611 A.2d 681 (1992), our supreme court stated that
      [b]ecause his consent is implied until the person actually refuses, under subsection (a) of Section 1547, his actual consent would be no different from his remaining silent. Thus, under the Implied Consent provision, Section 1547(a), testing is allowed absent an affirmative showing of the subject’s refusal to consent to the test at the time that the testing is administered. Moreover, his initial consent does not preclude him from revoking his consent to the test. The statute grants an explicit right to a driver who is under arrest for driving under the influence to refuse to consent to chemical testing.
      The court concluded that where chemical testing is performed after a driver has revoked his implied consent, the test result must be suppressed because it was taken unlawfully.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Our supreme court recently stated in Commonwealth v. John Martin Danforth (1990) 530 Pa. 327, 608 A.2d 1044 (1992), that “|w]hen Miranda warnings are followed by a police request for chemical testing, the police have an affirmative duty to not only inform the arrestee that refusal to submit to chemical testing will result in suspension of his driving privileges, but also that the arrestee does not have a right to speak with an attorney or anyone else in connection with his decision as to whether he will submit to chemical testing.”

      . A criminal proceeding is defined as ‘‘[o]ne instituted and conducted for the purpose either of preventing the commission of crime, or for fixing the guilt of a crime already committed and punishing the offender; as distinguished from a ‘civil’ proceeding, which is for the redress of a private injury. Strictly, a 'criminal proceeding’ means some step taken before a court against some person or persons charged with some violation of the criminal laws.” Black's Law Dictionary (5th ed. 1979).

      . Appellant also cites a number of federal cases to support his contention that deaf individuals have a constitutionally protected liberty interest in any activity which requires their participation, therefore, they must be provided with an interpreter to ensure meaningful access: Bonner v. Arizona Dept. of Corrections, 714 F.Supp. 420 (D.Ariz.1989); Jones v. Illinois Dept. of Rehabilitation Services, 689 F.2d 724 (1982); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980), vacated and remanded on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Barnes v. Converse College, 436 F.Supp. 635 (M.D.N.C.1977); DeFalco by DeFalco v. Deer Lake School Dist., 663 F.Supp. 1108 (W.D.Pa.1987). In the aforementioned cases, the plaintiffs relied upon section 504 of the Rehabilitation Act (the "Act”) or established that a cognizable liberty interest had been denied without due process of law. The elements of a cause of action under the Act are that plaintiff is a handicapped person, that plaintiff is otherwise qualified for participation in the program, that plaintiff is being excluded from participation in, denied the benefits of, or subjected to discrimination under the program solely because of his handicap, and that relevant program or activity is receiving federal funds. Doherty v. Southern College of Optometry, C.A.6 (Tenn.), 862 F.2d 570 (1988). Appellant has failed to establish that a breathalyzer test is a "program or activity” within the meaning of the Act and that the discrimination occurred under a. specific program that received federal funds, nor has appellant demonstrated that the administration of a breathalyzer test to a deaf person without the services of an interpreter infringed upon a protected liberty interest. In any event, a suppression hearing is a criminal proceeding and the Rehabilitation Act which is civil in nature would not provide appellant any relief.

      . Under the 1983 amendments to Oregon’s former implied consent law, the arresting officer was required to inform an arrestee of the alternative consequences both of taking the breath test and failing, and the consequences of refusing the test, before the arrestee makes a decision either way.