author: OLSZEWSKI, Judge:

text:
    676 A.2d 1232
    COMMONWEALTH of Pennsylvania v. Paul RICHTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 15, 1996.
    Filed May 22, 1996.

      David D. Wasson, III, Philadelphia, for appellant.
    Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com.
    Before HUDOCK, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On October 27, 1994, a jury found appellant Paul Richter guilty of rape, indecent assault and unlawful restraint of his pregnant ex-wife. The Honorable Gary S. Glazer dispensed punishment on December 19,1994, as he sentenced Richter to consecutive prisons terms of six-to-twenty years, for the rape conviction, and eight-to-sixteen months, for the indecent assault conviction. This appeal follows.

The incident from which Richter’s convictions stem was summarized by the trial court as follows:

On May 6, 1993, at approximately 7:30 a.m., [Richter] called his ex-wife, who was 19 weeks pregnant, to make arrangements to come to her house to show her pictures of their son’s Communion. [Richter] arrived approximately at 9:15 a.m. and was seated on the couch with a cup of coffee. As defendant was showing his ex-wife pictures of their son, [Richter] unzipped his pants and took out his penis. He asked the victim “if she wanted to suck on it” and “if she was going to be nice.” The victim told him no and that she could not because she could lose her baby if she had sexual intercourse. The victim got up and went into the kitchen to get [Richter] more coffee.
When the victim went to the kitchen, [Richter] followed behind her, put his hands under her shirt and fondled her breasts. [Richter] told the victim that “she could be nice, I won’t hurt you, I won’t hurt you. One more time.” The victim told [Richter] that she could not. The victim, then, pushed away [Richter’s] hands and told [him] to stop, but [Richter] did not stop.
As the victim leaned over to put the coffee cup on the table, [Richter] held the victim down on the shoulder and the hip while tugging at [her] pants and saying “one last time[.”] Although the victim told him no and began to cry, [Richter] pulled down her pants telling her that if she wanted anything for their son, the victim must have sexual intercourse with him. [Richter] inserted his penis into the victim’s vagina from the rear for a minute and [a] half. The victim cried and continued to tell the defendant to stop. The victim did not struggle because, based upon past experience, she knew [Richter] was capable of hurting both her and her unborn child. After [Richter] finished, he zipped up his pants, threw twenty dollars at the victim and left her house.

Opinion, 12/11/95 at 1-2.

On appeal, Richter presents the following issues for our review:

1. Whether the evidence was sufficient to support his rape conviction.
2. Whether the trial court erred in allowing the Commonwealth to introduce evidence of Richter’s prior bad acts.
3. Whether the evidence was sufficient to support his indecent assault conviction.
4. Whether his indecent assault conviction should merge with his rape conviction for sentencing.
5. Whether the evidence was sufficient to support his unlawful restraint conviction.

At the outset, we note that the “test for determining the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict winner, and thus, to determine whether the jury reasonably could have concluded that all elements of the crime were established beyond a reasonable doubt.” Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 664 (1992). See also Commonwealth v. Matty, 422 Pa.Super. 595, 619 A.2d 1383 (1993) The crime of rape is defined, in pertinent part, as follows:

§ 3121. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not one’s spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S.A. § 3121. In the case at hand, Richter claims that the Commonwealth failed to establish rape’s requisite forcible compulsion or threat of forcible compulsion. We disagree.

In Commonwealth v. Berkowitz, our Supreme Court stated that “[t]he force necessary to support a conviction of rape ... need only be such as to establish lack of consent to induce the [victim] to submit without additional resistance____ The degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case.” 537 Pa. 143, 148, 641 A.2d 1161, 1163 (1994) (quoting Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 A.2d 1217, 1226 (1986)). Instantly, Richter pinned his victim against a table and removed her pants and undergarments. Moreover, the victim testified that, on two prior occasions, Richter had brutally raped her. On one such occasion, Richter, after forcing her to engage in intercourse, rammed a brush drenched with plumber’s glue into the victim’s vagina. On the other occasion, Richter forced intercourse by punching the victim in the mouth, breaking numerous teeth. Both of the prior attacks required hospitalization. In light of Richter’s past savagery, the victim testified that, during the incident in question, she failed to physically resist Richter’s advances out of fear of physical retribution and out of fear of harming her unborn child.

Is Richter’s past brutality, coupled with the victim’s troublesome pregnancy and his pinning her against the kitchen table, enough to establish forcible compulsion or threat of forcible compulsion where the victim failed to physically resist Richter’s advances? We believe that this evidence is sufficient. Richter had demonstrated that he was capable of the terrible violence. He had proved to the victim that he could violate her in unthinkably horrible ways. We are convinced that, by May 6, 1993, Richter would have succeeded in breaking the will to resist of any person of reasonable resolution. Moreover, at the time of the May 6th attack, the victim’s fear of Richter’s aggression was compounded, as she had the additional worry of her unborn child. In Commonwealth v. Mlinarich, a plurality of our Supreme Court stated that “we no longer require that involuntariness must be demonstrated by useless resistance which would further imperil the victim’s safety.” 518 Pa. 247, 259, 542 A.2d 1335, 1341 (1988) (per Nix, J., with two justices joining). There is no question that, in the instant case, the victim chose the prudent course in failing to offer physical resistance to Richter’s advances. Any other decision may have meant her, and her unborn child’s, demise. Instead, the victim wisely chose to resist Richter through words. Unfortunately, her words did not succeed.

In light of these circumstances, we cannot find that intercourse with the victim had been achieved through anything less than forcible compulsion or threat of forcible compulsion. See Commonwealth v. Jones, 449 Pa.Super. 58, 672 A.2d 1353 (1996) (elements of rape met where “victim was pregnant and concerned for the well being of her unborn child” and the defendant had hit the victim in the face with a pillow, threatened the victim with violence and “held down the victim’s shoulders before and during intercourse and removed the victim’s clothing”). Further, since the Commonwealth has established all elements of the crime of rape, Richter’s first allegation of error must fail.

Intertwined with this first issue, however, is Richter’s claim that the victim’s testimony concerning the prior rapes should not have been admitted into evidence. We disagree. Richter correctly notes that, generally, evidence of a defendant’s prior crimes may not be admitted at trial. Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). Nevertheless, this general rule gives way when such evidence is offered to prove “(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design ... or (5) to establish the identity of the person charged with the commission of the crime on trial ...” Id. Instantly, it is clear that the victim’s testimony concerning Richter’s past savagery does not fit within one of the above exceptions. “Nevertheless, we may create new exceptions in appropriate cases.” Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179 (1985). We believe that this case warrants such an exception.

In Claypool, our Supreme Court held that an exception to the general rule was warranted, with proper cautionary instruction, where the defendant told his victim that he had committed prior rapes in an attempt to scare her into submission. Id. In so holding, the Claypool Court stated that “[e]vidence of prior crimes may be admissible ... if it is relevant to prove something other than the defendant’s propensity for committing crimes.” Id. (Emphasis original.) In the case at hand, the testimony concerning Richter’s prior acts was not offered to establish a propensity to commit rape. Instead, it was offered to show the victim’s state of mind in failing to physically resist Richter’s advances. Further, Judge Glazer properly instructed the jury that the evidence was to be considered for only this point. As such, we believe that this testimony was properly admitted at trial. See id. Moreover, to exclude this evidence would reward a defendant for committing multiple rapes upon the same victim. As noted above, without evidence of the brutality which has served to wear down the victim’s will to resist, forcible compulsion could not be established in such cases. We expressly hold, therefore, that, in rape cases, evidence of a defendant’s past violent crimes upon a victim is admissible in establishing that sexual intercourse was achieved through forcible compulsion or the threat of forcible compulsion. Consequently, Richter’s second allegation of error joins his first in failure.

Richter next claims that there was insufficient evidence to convict him of indecent assault. We disagree. The crime of indecent assault is defined, in pertinent part, as follows:

§ 3126. Indecent assault
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:

(1) He does so without the consent of the other person; 18 Pa.C.S.A. § 3126.

Instantly, the Commonwealth established that, prior to forcing his penis into his victim’s vagina, Richter “put his hands under her shirt and fondled her breasts” against her wishes. Opinion, 12/11/95 at 2. By the plain meaning of § 3126, we find that Richter’s actions clearly constitute an indecent assault.

The issue of whether the indecent assault conviction should merge with the rape conviction, however, is more problematic. There is no question that when a defendant is found guilty of both rape and indecent assault based upon a single physical act, the convictions must merge. Johnson v. Commonwealth, 499 Pa. 380, 453 A.2d 922 (1982). The question before this Court, however, is whether the convictions must merge when the indecent assault, while part of the same criminal episode, is predicated upon a separate physical act from the rape. This query presents an issue of first impression.

Over twenty years ago, this Court stated that “[t]he crime of rape necessarily includes the crime of indecent assault, not merely in the progression of acts but in the act itself.” Commonwealth v. Richardson, 232 Pa.Super. 123, 126, 334 A.2d 700, 701 (1975) (emphasis added). At first blush, this language would seem to indicate that an indecent assault committed during, or immediately prior to a rape, must merge with the rape despite being separate physical acts. This result is unacceptable. A closer reading of Richardson reveals that the indecent assault conviction, in that case, was predicated upon the same physical act as the rape conviction, i.e., the forcible intercourse. As such, the Richardson holding must be limited to its facts, and we deem the language concerning indecent assaults committed in “the progression of acts” as obiter dictum.

Moreover, we are convinced that when an indecent assault conviction is predicated upon an act separate from the act of forcible intercourse, the indecent assault conviction does not merge with a conviction for rape. This is true whether the act which constitutes indecent assault is committed immediately prior to, or concurrently with the rape. Our holding is consistent with prior caselaw.

In Commonwealth v. Ashe, our Supreme Court found that

[t]wo crimes may be successive steps in one crime and therefore merge ... or they may be two distinct crimes which do not merge____ When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both.

343 Pa. 102, 105, 21 A.2d 920, 921 (1941) (emphasis original).

Instantly, Richter’s indecent assault conviction was predicated upon his fondling the victim’s breasts. This act, however, was irrelevant with respect to the Commonwealth establishing the requisite elements of rape. As such, we find that Richter’s convictions do not merge for sentencing. See Ashe, supra. To find otherwise would be to ignore the separate injuries suffered by the victim and to reward Richter for committing multiple atrocities. Such a result would be contrary to our notions of justice and will not be condoned by this Court.

Lastly, Richter contends that the Commonwealth presented insufficient evidence to support his unlawful restraint conviction. We cannot find, however, any argument in support of this issue in Richter’s appellate brief. Consequently, this issue is waived. Commonwealth v. Mercado, 437 Pa.Super. 228, 243-45, 649 A.2d 946, 954 (1994).

Judgment of sentence affirmed.

      . No sentence was imposed for the unlawful restraint conviction.

      . We note that Richter also contends that the information filed by the Commonwealth was defective as it lacked specificity concerning the indecent assault charge. Richter, however, has failed to request in an omnibus pretrial motion that the information be quashed. As such, we deem this issue waived. See Commonwealth v. Rishel, 441 Pa.Super. 584, 596-98, 658 A.2d 352, 358 (1995); Commonwealth v. Gemelli, 326 Pa.Super. 388, 397-98, 474 A.2d 294, 299 (1984); Commonwealth v. Kimble, 323 Pa.Super. 499, 509-11, 470 A.2d 1369, 1375 (1984).


source: Caselaw Access Project

author: MONTEMURO, Justice.

license: Public Domain

text:
      676 A.2d 1237
    Patricia DiLUCIDO, Mitchell Rosen and Dena Rosen, on behalf of themselves and others similarly situated, Appellants, v. TERMINIX INTERNATIONAL, INC., and the Terminix International Company L.P., Appellees.
    Superior Court of Pennsylvania.
    Argued March 28, 1996.
    Filed May 22, 1996.

      Jay S. Cohen, Lower Gwynedd, for appellants.
    Mitchell S. Pinsly, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA, JJ., and MONTEMURO, J.

       Retired Justice assigned to Superior Court.

   OPINION

MONTEMURO, Justice.

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, denying Appellants request for class certification. For the following reasons, we affirm.

Preliminarily, we must address the issue of whether this appeal is properly before our Court. It is well settled that an appeal may be taken only from final orders, unless otherwise permitted by statute. Pennsylvania Ass’n of Rural and Small Schools v. Casey, 531 Pa. 439, 442, 613 A.2d 1198, 1199 (1992). Previously, certain orders that did not dispose of an entire case, but contained an aspect of finality, had been held to be final orders under Rule 341 of the Pennsylvania Rules of Appellate Procedure. Id. Among these orders was the denial of class certification.

However, on May 6, 1992, the Pennsylvania Supreme Court amended Rule 341 and adopted Rule 313 of the Pennsylvania Rules of Appellate Procedure. Initially, the changes were to govern only those actions which commenced after July 6,1992. But, on January 10,1994, the Supreme Court ordered that the new changes apply to all orders entered on or after March 1, 1994, regardless of when the action commenced. As the order from which this appeal was taken was entered on September 28,1995, this case is clearly within the purview of the new and amended rules.

In contrast to the old rule, the amended Rule 341 only permits appeals from orders which dismiss all claims or all parties. However, the Note following the amended rule provides a partial list of orders which are no longer considered final orders, but which may be appealable under Rule 312 or 313 in appropriate cases. Among those listed is “an order denying class certification in a class action case.” Pa.R.App.P. 341 Note. As the parties, in this case, did not seek permission to file this appeal under Rule 312, we must determine whether it is properly before us pursuant to Rule 313, governing appeals from collateral orders. This rule provides:

(a) General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.App.P. 313. Accordingly, in order to qualify as a collateral order, the instant order must satisfy all three factors in the above definition.

First, the order denying class certification clearly is separable from and collateral to the cause of action for liability under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). Next, we note that class actions were established to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 231, 348 A.2d 734, 737 (1975). Undoubtedly, the opportunity to litigate a meritorious claim is a right that warrants review. Finally, if not immediately appealable, this right would be lost. Any persons who chose to proceed individually would eventually obtain their remedy and would have no reason to appeal the denial of certification, while those with small claims would be turned away without recourse. Accordingly, we find that the elements of Rule 313 have been established, and this case is properly before this Court. Therefore, we will proceed with the issue of whether class certification was properly denied.

Pennsylvania Rule of Civil Procedure 1708(a) sets forth the prerequisites for class certification. It provides that one or more members of a class may sue on behalf of all members in a class, if the court determines that: (1) the size of the class is manageable; (2) common questions of law or fact predominate; (3) the claims of the representative parties are typical of the claims of the class; (4) the representative parties will fairly and adequately assert and protect the interests of the class; (5) the class action provides a fair and efficient method for adjudication of the claims. See Kelly v. County of Allegheny, 519 Pa. 213, 218, 546 A.2d 608, 610 (1988).

In making its decision to deny class certification, the lower court held that common questions of law or fact did not predominate the case and that a class action would not be a fair and efficient method of adjudicating the claims. The court stated that Appellants would be required to prove the elements of common law fraud and would have to show that they relied to their detriment on misrepresentations by Appellee. As such, every member of the proposed class would have to show that he or she saw the misrepresentations, relied on the same, and actually suffered an ascertainable loss. Furthermore, those actually injured would have to show the source of the injury and the type of injury.

The lower court also held that the claims of the named parties were not typical of those asserted for the class. First, it noted that a claim under the UTPCPL requires actions or representations that are in fact misleading and that Appellant Mitchell Rosen testified that he had not been misled by Appellee’s representations. Next, the court found that none of the Appellants alleged ascertainable losses, as required under the UTPCPL. Finally, the court noted that Appellant DiLucido was not a typical plaintiff, as she used the property for rental income and would most likely not be protected under the UTPCPL.

On appeal, Appellants raise the following questions for our review: (1) whether reliance is a necessary element of proof under 73 P.S. § 201-2(4)(ii), (v), (vii), (xvi) & (xvii); (2) whether common questions of law or fact predominate; (3) whether the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) whether Appellants were required to present proof of actual physical injury in order to establish ascertainable losses; and (5) whether Appellants are entitled to relief for the delay in the lower court rendering a decision on class certification.

First, we must note that “[t]rial courts are vested with broad discretion in determining definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class.” Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976). Accordingly, the lower court’s order denying class certification will not be disturbed on appeal, unless the court neglected to consider the requirements of the rules or abused its discretion in applying them. D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 448, 500 A.2d 1137, 1141 (1985), allocatur denied, 514 Pa. 630, 522 A.2d 559 (1986).

To counter the trial court’s determination that the elements of common law fraud must be proven, Appellants contend that the Consumer Protection Law creates a “statutory fraud” for which they need not prove the elements of common law fraud, especially that of reliance. To support this contention, Appellants refer to Commonwealth by Creamer v. Monumental Properties, 459 Pa. 450, 329 A.2d 812 (1974), in which the Court stated that “[t]he Consumer Protection Law was in relevant part designed to thwart fraud in the statutory sense ...” Id. at 460, 329 A.2d at 817 (emphasis added). However, this Court specifically addressed this argument in Prime Meats, Inc. v. Yochim, 422 Pa.Super. 460, 619 A.2d 769 (1993), allocatur denied, 538 Pa. 627, 646 A.2d 1180 (1994), and held that to recover under section 201-2(4)(xvii) of the UTPCPL, the elements of common law fraud must be proven. Id. at 469, 619 A.2d at 773. The Court explained that the above language was a reference to the legislative attempts to thwart fraud, not to redefine it. Id. at 469-70, 619 A.2d at 774.

However, in Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987), when determining the appropriate statute of limitations to apply to a claim under section 201-2(4)(viii), this Court noted that the UTPCPL “encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty.” Such actionable conduct sounds in assumpsit as well as trespass and parallels actions in contract as well as those arising in tort. Id. at 396, 534 A.2d at 495. Therefore, this Court stated that it was unable to characterize all the various claims under the UTPCPL as fraud or deceit. Id.

While the Court in Gabriel did not address the specific sections at issue in this case, its reasoning is nonetheless persuasive. If we explored the parallel actions for the deceptive conduct delineated in section 201-2(4), we would discover various standards for the distinct and separate deceptive practices. It would, therefore, seem logical to apply those same standards for actions under the corresponding subsections of 201-2(4) of the UTPCPL, so that persons would not be subject to differing standards for identical conduct. • Applying this rationale, we note that under section 201 — 2(4)(ii) , a plaintiff is required to establish that a defendant’s representations were likely to cause confusion or misunderstanding. Commonwealth, Atty. Gen. Packel v. Tolleson, 14 Pa.Commw. 72, 123, 321 A.2d 664, 693 (1974), decree aff'd, 462 Pa. 193, 340 A.2d 428 (1975). Under section 201-2(4)(v), a plaintiff must establish that a defendant’s advertisement is false, that it actually deceives or has a tendency to deceive a substantial segment of its audience, and that the false advertising is likely to make a difference in the purchasing decision. Commonwealth v. Hush-Tone Indus., Inc., 4 Pa.Commw. 1, 21, 1971 WL 13030 (1971). Under section 201-2(4)(xvi), a plaintiff must show that a defendant agreed in writing to perform a contract with a certain quality and that the work was substandard and inferior. Commonwealth v. Burns, 663 A.2d 308, 311 (Pa.Cmwlth.1995). Finally, under section 201-2(4)(xvii), a plaintiff is required to prove the elements of common law fraud. Prime Meats, 422 Pa.Super. at 469, 619 A.2d at 773.

Accordingly, we find that Appellants are correct in their contention that they are not required to prove the elements of common law fraud to establish violations of sections (ii), (v) and (xvi). However, this does not relieve them of the burden of establishing a causal connection to or reliance on the alleged misrepresentations of Appellee. We note that section 201-9.2(a) of the UTPCPL, providing for private actions, states, in relevant part:

Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act ...

73 P.S. § 201-9.2 (emphasis added). Certainly, the use of the, phrase “as a result of’ indicates the intent of the Legislature to require a causal connection between the unlawful practice and a plaintiffs loss. Accordingly, we find that in order to proceed with their claims under the UTPCPL, Appellants must be able to establish that the alleged misrepresentations by Appellee caused their loss.

At the class certification hearing, Appellant Mitchell Rosen testified that he

did not see anything specific from Terminix in terms of ... I had seen their advertising all over the place. And I was under the assumption, maybe the wrong assumption from what I learned lately, that what the methods that they used are safe____ I mean I assumed that they were a national company, and they are not going to go into somebody’s house and use something that’s unsafe. And if something is unsafe you would think that you would see it in their advertising, or at least a disclaimer, ... I mean I never saw anything like that.

(Notes of Testimony at 42-43). He also testified that he retained Appellee Terminix simply by renewing the plan purchased by the prior owners. (Notes of Testimony at 38-39). He stated that he and his wife “assumed it would be prudent, since [Terminix] had done the work before ...” Id.

The above testimony indicates that Appellant Mitchell Rosen relied on Appellee’s status as a national company and the fact that Appellee had previously treated his home to make his decision to purchase renewal contracts. Furthermore, Appellant Mitchell Rosen’s primary contention appears to be that Appellee failed to say enough in its advertising (i.e., warning or disclaimer information), rather than too much. Based on this testimony, we find that Appellant Mitchell Rosen has failed to present sufficient evidence to establish that his alleged loss was a result of specific misrepresentations by Appellee, as required in a private action under the UTPCPL. Therefore, his claims would not be typical of the proposed class.

As for Appellant DiLucido, she did not testify that she relied upon any allegedly misleading advertising. Rather, she stated that Terminix was “the only company that I thought of when the topic of termites came up.” (Notes of Testimony at 71). Like Appellants Mitchell and Dena Rosen, Appellant DiLucido has failed to present sufficient evidence to establish that her alleged loss was a result of misrepresentations by Appellee, as required in a private action under the UTPCPL. Therefore, her claims would not be typical of the members of the proposed class.

We also note that Appellant Patricia DiLucido testified that she does not personally reside at the residence in question, rather she allows one tenant to stay there free of charge, while she collects rent from a second tenant. (Notes of Testimony at 68). The UTPCPL only allows a private action for damages where the person purchased the service in question “primarily for personal, family or household purposes.” 73 P.S. § 201-9.2. Appellant attempts to argue that her situation is analogous to that in Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, 393 Pa.Super. 339, 574 A.2d 641, (1990), aff'd, 529 Pa. 512, 605 A.2d 798 (1992), in which a condominium association was permitted to maintain a private action on behalf of the individual resident owners. Id. at 348, 574 A.2d at 645. However, Appellant DiLucido is not attempting to bring this action as a representative of her tenants; rather, she seeks to recover as the owner of rental income property. As such, she would not be protected under the UTPCPL, and her claims would not be typical of members of the proposed class.

The purpose of the typicality requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that the pursuit of their interests will advance those of the proposed class members. D 'Amelio, 347 Pa.Super. at 458, 500 A.2d at 1146. As Appellants failed to establish that they would be able to proceed under the various sections of the UTPCPL, we find that they cannot satisfy this requirement.

Based on our determination that Appellants have failed to satisfy the typicality requirement for class certification, it is unnecessary for us to discuss whether common issues would predominate and whether proof of physical injury is necessary to establish an ascertainable loss. However, we will address Appellants’ final contention regarding the delay in denying class certification.

Appellants assert that they are entitled to some sort of relief due to the four year delay by the trial court in rendering its final decision on Appellants’ motion for class certification. We note that Appellants petitioned the Supreme Court of Pennsylvania for Writ of Mandamus, alleging an unconstitutional delay in the administration of justice and requesting the assignment of a new judge and an expedited decision on the matter. The Supreme Court, however, refused to grant Appellants any relief on this basis. As Appellants have sought and been denied relief based on the very issues presently asserted, we will not venture to fashion relief which our Supreme Court refused to grant.

According, the order of the trial court is hereby affirmed.

      . This section defines “unfair methods of competition” and "unfair or deceptive acts or practices” as "[clausing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services.” 73 P.S. § 201-2(4)(ii).

      . This section defines “unfair methods of competition” and "unfair or deceptive acts or practices” as:
      Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have.
      73 P.S. § 201-2(4)(v).

      . This section defines "unfair methods of competition” and "unfair or deceptive acts or practices” as “[m]aking repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing.” 73 P.S. § 201-2(4)(xvi).

      . This section defines "unfair methods of competition” and "unfair or deceptive acts or practices” as “[e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xvii).

      . We note that Appellant Dena Rosen did not testify at the class certification hearing. Therefore, we will assume that the reasons set forth by Appellant Mitchell Rosen also apply to her. Accordingly, we find that her claims would not be typical of the claims of the proposed class.


author: CERCONE, Judge:

text:
    676 A.2d 237
    Sharon HRINKEVICH v. John HRINKEVICH, Appellant. (Three Cases.)
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1995.
    Filed April 11, 1996.
    Reargument Denied June 12, 1996.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Thomas H. Ramsay, Lionville, for appellee (submitted).
    Before KELLY, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

These are partially consolidated appeals stemming from several trial court orders which relate to ongoing divorce proceedings. We affirm in part and quash in part.

The parties to the present appeal were married in April of 1970. Sharon Hrinkevieh (wife) filed a complaint in divorce which was docketed on January 7, 1985. The certified record reveals that the parties have experienced great difficulty in settling matters concerning child support, spousal support and equitable distribution. This situation has led to a multiplicity of proceedings and resulted in many interim trial court orders. Prior to entry of the orders underlying the instant appeals, John Hrinkevieh (husband), had already filed two appeals to the Superior Court. Although no formal order of bifurcation was ever entered, the trial court granted the parties a divorce on August 3, 1993. The Superior Court ruled that this constituted de facto bifurcation of the case. Hrinkevich v. Hrinkevich, 436 Pa.Super. 672, 648 A.2d 1240 (No. 2795 Philadelphia 1993, filed May 31, 1994) slip opinion at 2 n. 1.

The parties have continued their ongoing disputes concerning support and equitable distribution. Husband has expressed his dissatisfaction with the trial judge’s efforts at resolving these problems by filing three separate notices of appeal seeking review of various trial court orders. We shall deal with the facts and issues pertinent to each notice of appeal separately.

No. 3912 Philadelphia 1994 Appeal from the order entered October 4,1994

Husband’s initial notice of appeal stems from the following order entered by the Honorable James P. MacElree II:

AND NOW, this 4th day of October, 1994, based upon the attached Motion, it is hereby ORDERED and DIRECTED that DRO shall revise their audit on the basis of the [sic] this Court’s September 13, 1985, Court Order, Master Platt’s Recommendation of October 21, 1986, and J. Endy’s February 17,1987, Order in accord with a $1,200 per month child and spousal support obligation effective March 7,1985, to June 30, 1993, (allocated as $900 for child support and $300 for spousal support) and $600 per month in child support only thereafter from July 1,1993, to present.

Trial court order filed and docketed October 6, 1994. Husband challenges this order on the following basis:

THE COURT BELOW COMMITTED AN ERROR AT LAW AND AN ABUSE OF DISCRETION IN NOT GRANTING APPELLANT A HEARING ON THE MERITS, IN CREATING A NEW SUPPORT ORDER UNDER THE GUISE OF ORDERING A REVISION OF AN AUDIT, ERRED IN NOT GRANTING THE DEFENDANT A HEARING UPON THE DEFENSES RAISED BY THE STIPULATION AND FURTHER ERRED IN ATTEMPTING TO CREATE A NEW SUPPORT ORDER BY REVIEWING UNSUBSTANTIATED DOCUMENTATION WITHOUT A HEARING.

Appellant’s brief at “i.”

Before considering husband’s contentions, we must first determine whether we may exercise jurisdiction over the appeal. See Fried v. Fried, 509 Pa. 89, 91-92, 501 A.2d 211, 212-13 (1985) (questions concerning appealability of an order go to the jurisdiction of the court to hear the appeal and may be raised sua sponte). The Rules of Civil Procedure applicable to support matters have recently been modified, effective March 1, 1995. These modifications are applicable to cases such as the present one which were pending on the effective date of the amendments. Calibeo v. Calibeo, 443 Pa.Super. 694, 698-700, 663 A.2d 184, 186 (1995). According to Calibeo, the net effect of these amendments is that the portion of a trial court order attributable to child support is final and immediately appealable; however, the portion of an order allocated to spousal support is interlocutory. See id. at 696-700, 663 A.2d at 185-86 (citing Rules of Civil Procedure 1910.16-l(a), 1910.16(b), 1920.31, and 1920.76).

Under Calibeo, this court has jurisdiction to consider claims related to child support, but we cannot address issues related to spousal support until a divorce decree has been entered and the certified record shows that no economic claims remain to be decided. Id. at 698-700, 663 A.2d at 186. See Pa.R.C.P. Nos. 1910.16(b) and 1920.56(b), 42 Pa.C.S.A. (an unallocated order granting both child and spousal support is final and appealable; no comparable provision permits the immediate appeal of a spousal support order). In this case, the divorce decree has been entered. However, the trial court has explicitly taken under advisement certain issues relating to equitable distribution. See Trial Court Opinion filed February 2, 1995 at 1-2. Because these economic matters remain open, this court has jurisdiction to address husband’s claims as they relate to child support, but we cannot consider any issues pertaining to spousal support. Therefore, we must quash that portion of the appeal which concerns spousal support.

The parties agree that prior to the trial court’s action on October 4, 1994, they had entered into a stipulation which became a court order directing the Chester County Domestic Relations Department to conduct an audit. (On page 5 of his brief, husband states that the court order was dated January 25, 1994 while on page 8 he gives the date as March 1, 1994; wife avers that the order was dated March 1, 1994.) The parties also agree that they were entitled to notice of the dates on which the audit would be conducted, and that they had the right to be present during the audit. However, husband states that he was never given notice as to when the audit would actually be performed, and thus was deprived of his right to be present. Wife responds that husband was deprived of nothing because he never requested to attend the audit.

Unfortunately, we cannot verify any of these allegations because the trial court docket lacks entries covering the time period between October 18, 1993 and July 25, 1994. Furthermore, the trial court record, as certified to this court, contains no copies of any of the documents which the parties aver were filed during this interval. It is well-settled that the Superior Court may only consider documents properly incorporated within the certified record. Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 412 n. 5, 595 A.2d 1211, 1215 n. 5 (1991). A defect in the certified record is not cured merely because one of the parties provides copies of missing documents via the reproduced record. Id. Paper may not be made part of the certified record simply by reproducing it. Id.

The certified record consists of the original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. See Pa.R.A.P., Rule 1921, 42 Pa.C.S.A. (Composition of record on appeal); Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). “It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa.Super. 446, 460-61, 585 A.2d 1012, 1019 (1991). “For purposes of appellate review, what is not of record does not exist.” Frank v. Frank, supra.

The first entry in the certified record which deals with the audit at issue instantly is a copy of a Rule Returnable which wife filed on August 29, 1994 requesting review of the Domestic Relations Office’s audit. Husband avers that he filed a request for continuance on the Rule Returnable because his attorney was ill. He also states that the trial court granted the continuance on September 19, 1994. However, these assertions are not reflected on the docket sheet, nor are they supported by any filings in the record as transmitted. Instead, the next entry in the certified record is a copy of wife’s “Motion to Make Rule Absolute and Enter Order” which was filed September 26, 1994. Husband states that he responded to wife’s motion by filing preliminary objections. The certified record not only lacks any documentation to support this averment, it does not even include a copy of the actual audit report. The next entry in the certified record following wife’s motion, is the trial court order of October 4, 1994 which is the subject of the instant appeal.

The essence of husband’s argument is that the effect of the October 4th order was to unlawfully and indirectly create a new support order while denying him the benefit of a hearing on the revisions to the audit. Husband also contends that wife’s petition for review of the audit was untimely and that the trial court erred by entertaining it. Unfortunately, we are forced to conclude that there is no basis in the certified record upon which we could possibly review any of husband’s contentions. We must accordingly find husband’s claims waived insofar as they concern the trial court’s determination on child support. We therefore affirm the October 4th order as it relates to child support, and quash that portion of husband’s appeal which concerns spousal support issues.

No. 380 Philadelphia 1994 Appeal from the order entered August 3,1993

The challenged order at issue here is the decree of divorce. A divorce decree entered pursuant to an order for bifurcation is a final order. Curran v. Curran, 446 Pa.Super. 633, 635, 667 A.2d 1155, 1156 (1995). As previously explained, the trial court never formally granted bifurcation in this case. Nevertheless, this court has previously ruled that the entry of the divorce decree resulted in de facto bifurcation. See Hrinkevich v. Hrinkevich, (No. 2795 Philadelphia 1993, filed May 31, 1994) slip opinion at 2 n. 1. Because this is a bifurcated divorce, Curran requires us to consider the decree of divorce entered by the trial court as final and appealable. However, we are unable to address the merits of this appeal because husband has declined to identify any issues or present any arguments. Instead, husband states that he wishes to incorporate by reference the claims raised in the appeal lodged at No. 2795 Philadelphia 1993 (quashed May 31, 1994).

The Rules of Appellate Procedure do not authorize the adoption by reference of arguments introduced on prior appeal. Attempts to employ such unorthodox practices result in waiver of the claims thereby identified. See Smathers v. Smathers, 448 Pa.Super. 162, 670 A.2d 1159 (1996) (briefs which inadequately explain the claims at issue foreclose meaningful appellate review and may justify quashal); Commonwealth v. Rodgers, 413 Pa.Super. 498, 520, 605 A.2d 1228, 1239 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (1992) (“an appellate brief is simply not an appropriate vehicle for the incorporation by reference of matter appearing in previously filed legal documents”).

In this case, husband has not even “identified” any issues. His entire discussion of the matter consists of the following statement: “Appellant will not duplicate his arguments made in the brief submitted and the record filed at No. 2795PHL93 which brief and record are incorporated herein by reference.” Appellant’s brief at 8. For appellant’s benefit, we note that the Superior Court does not have an infinite storage capacity which enables us to retain copies of every brief ever filed with our Prothonotary. Moreover, the Superior Court Prothonotary returns the certified record to the trial court after we relinquish jurisdiction over an appeal. At this stage of the proceedings in the instant case, it is impossible to ascertain which portion of the voluminous record was previously in our possession. Because of the total inadequacy of husband’s brief, we conclude that he has abandoned whatever claims he intended to raise in this appeal. We must therefore affirm the trial court’s order entering the decree of divorce.

No. 381 Philadelphia 1994 Appeal from the order entered December 15,1993

Husband’s final appeal stems from a trial court order granting counsel fees to wife in the amount of five thousand eight hundred fifty-one dollars ($5,851.00). Judge MacElree has explained the rationale for this ruling in the following manner:

Appellant Husband in essence contends that there is no factual basis for our Order awarding counsel fees to Appellee Wife. The record is filled ad nauseam with findings by the Special Master that Husband’s behavior was obdurate, vexatious and dilatory. We have reviewed the record and fully concur with the Master’s findings. We also find the objection to be highly disingenuous considering our first contact with this case two (2) years ago in which Husband’s counsel, in a chambers conference, conceded that Husband was his own worst enemy and that his dilatory actions were not defensible.
Further, the counsel fees awarded here, in light of the volume of litigation, are extremely conservative. We believe the record fully supports our conclusion that Husband should pay the portion of Wife’s counsel fees awarded. We suggest that the Superior Court consider assessing Husband counsel fees for the cost to Wife of defending any untimely appeals.

Trial Court Opinion filed February 21,1995 at 3.

Our Supreme Court has explained that an order granting counsel fees and costs is separable from and collateral to the main cause in a divorce action. Fried v. Fried, 509 Pa. at 94-95, 501 A.2d at 214. Nevertheless, this type of interim relief is not immediately appealable because the money paid pursuant to the court’s order is not “unrecoverable” or “irreparably lost” until all of the equitable distribution claims have been resolved by the trial court and a final judgment has been entered. Id. at 95-96, 501 A.2d at 214-15. An interim order of counsel fees is interlocutory and non-reviewable until final disposition of all economic issues in the case. Id. at 97, 501 A.2d at 215. The certified record discloses that certain claims relating to equitable distribution remained unresolved between the parties at the time husband filed his notice of appeal. We therefore conclude that this appeal is premature and must be quashed.

As a final matter, we note that the trial court has requested us to assess counsel fees and costs against husband pursuant to Rules of Appellate Procedure 2741, 2743 and 2744, 42 Pa.C.SA. We agree with the trial court that, as to all three appeals, wife is entitled to costs pursuant to Rules 2741(2) (costs taxable against the appellant upon affirmance of the trial court’s order) and 2743(a)(1) (fees paid in the appellate court and cost of transcript). Furthermore, we agree that husband’s behavior in failing to adequately identify and brief the issues he sought to “incorporate by reference” at Appeal No. 380 Philadelphia 1994 constitutes dilatory, obdurate and vexatious conduct of the type contemplated by Rule 2744. Finally, we agree that this appeal is “frivolous” within the meaning of Pennsylvania law and therefore grant counsel fees to wife in connection with Appeal No. 380 Philadelphia 1994. We therefore remand the case so that the trial court may conduct a hearing to determine the amount of the taxable costs actually paid by wife for all three appeals, and assess reasonable counsel fees in connection with Appeal No. 380 Philadelphia 1994. After conducting a hearing in the matter, the trial court is directed to enter an order consonant with the above discussion.

The appeal at No. 3912 Philadelphia 1994 is quashed in part (as it relates to spousal support); the order entered October 4, 1994 is affirmed in part (as it pertains to child support). The order of August 3, 1993 is affirmed. The appeal at No. 381 Philadelphia 1995 is quashed as interlocutory. We grant costs and counsel fees to appellee pursuant to Rules of Appellate Procedure 2741, 2743 and 2744. The case is remanded for further proceedings consistent with this opinion. Superior Court jurisdiction is relinquished.

      . In 1989, we affirmed the trial court’s adjudication of contempt against Mr. Hrinkevich for refusing to pay accumulated arrearages on his court ordered spousal and child support obligation. Hrinkevich v. Hrinkevich, 391 Pa.Super. 645, 563 A.2d 198 (No. 2713 Philadelphia 1988, filed June 2, 1989). In 1994, we quashed husband’s premature appeal from the trial court’s entry of a decree in divorce because several economic issues remained unsettled between the parties. Hrinkevich v. Hrinkevich, 436 Pa.Super. 672, 648 A.2d 1240 (No. 2795 Philadelphia 1993, filed May 31, 1994).


author: KELLY, Judge.

text:
    676 A.2d 242
    Alicja JANSON, Appellant, v. COZEN AND O’CONNOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1995.
    Filed April 23, 1996.

      Richard C. Bennett, Philadelphia, for Janson.
    Steven E. Angstreich, Philadelphia, for Cozen and O’Con-nor.
    Before KELLY, FORD ELLIOTT and HOFFMAN, JJ.
   KELLY, Judge.

In these cross-appeals we are called upon to determine whether a valid escrow agreement can arise when a lawyer acting solely upon the instructions of his client deposits the proceeds from the sale of opposing party’s stock into his law firm’s escrow account, then, after subsequently informing opposing party that the proceeds from the sale of her stock has been placed in his law firm’s escrow account, utilize a portion of these same funds at his client’s instruction to settle another case. We hold that a valid escrow agreement between the law firm’s client, opposing party, and law firm never arose. Thus, the law firm owed no fiduciary duty towards opposing party to hold the proceeds from the sale of opposing party’s stock in its escrow account until such time as pending litigation between its client and opposing party was completed. Therefore, we reverse the trial court’s order entering summary judgment in favor of opposing party and remand to the trial court for entry of summary judgment in favor of the law firm.

The relevant facts and procedural history of these cross-appeals are as follows. During the months of June and July, 1987, Alicja Janson (Janson) began negotiations for a sales position with George A. Switlyk (Switlyk) and Lloyd’s Development Corporation. Subsequently an agreement was reached where Janson was to receive an annual salary of $57,000.00. Upon the commencement of Janson’s employment, Switlyk informed her that he was reducing the previously agreed upon salary to $36,000.00 per year but promised to give Janson nineteen thousand, five hundred shares of stock in Lloyd’s Acceptance Corporation. The shares were valued at $1.25 per share.

On November 1, 1988, after several disagreements regarding the terms of her employment arose, Janson sent Switlyk a letter instructing him to sell her shares in Lloyd’s Acceptance Corporation. Accordingly, on January 2, 1980 Switlyk sold Janson’s nineteen thousand, five hundred shares of stock in Lloyd’s Acceptance Corporation for $1.25 per share, thus receiving a gross sales price of $24,375.00. Switlyk then took a thirteen percent sales commission for Lloyd’s Acceptance Corporation equaling $3,168.75.

During this same time period, Switlyk retained the law firm of Cozen and O’Connor to represent him and Lloyd’s Acceptance Corporation in their dispute with Janson. Richard C. Bennett, Esquire, a member of the law firm, was assigned to represent Switlyk and Lloyd’s Acceptance Corporation. Shortly thereafter, Switlyk forwarded a check of $21,206.25 to Attorney Bennett with a cover letter instructing him to place these funds in Cozen and O’Connor’s escrow account.

On February 1, 1989, Janson filed suit against Switlyk and Lloyd’s Acceptance Corporation. In the answer to Janson’s complaint, which was drafted and signed by Attorney Bennett, Switlyk admitted that the stocks were sold for $24,375.00 less a thirteen percent commission to Lloyd’s Acceptance Corporation and that his attorney was holding the balance of $21,-206.25. However, Switlyk further asserted that he was not obligated to make payment to Janson in this amount due to Janson’s misconduct while employed by Lloyd’s Development Corporation. These reasons were subsequently set forth in Switlyk’s and Lloyd’s Acceptance Corporation’s new matter and counterclaims. At a deposition held on July 11, 1990, Janson’s counsel asked Switlyk about the money received from the sale of Janson’s stock. Switlyk replied that he had “escrowed” the money. Attorney Bennett then interjected, “To clarify something, it [the money] is in our escrow account. I don’t know off the top of my head whether it is gathering interest and, if so, at what rate.” (Switlyk’s Deposition, 7/11/90, at 100-01).

During this same time period, Switlyk also was involved in litigation with John Tersigni with the firm of Cozen and O’Connor also serving as defense counsel. Switlyk subsequently instructed Attorney Bennett to use $18,000 of the $21,206.25 being held in Cozen and O’Connor’s escrow account to settle the Tersigni case. Bennett followed Switlyk’s instructions. Therefore, after the Tersigni matter was settled, only $3,206.25 of the original $21,206.25 remained in Cozen and O’Connor’s escrow account.

On February 18, 1991, a pretrial conference was held before the Honorable Robert A. Freedburg. At this pretrial conference, it was disclosed to Janson by Attorney Bennett that $18,000.00 of the funds received from the sale of the stock had been used to settle the Tersigni matter.

On November 12, 1991, a non-jury trial was held in Janson v. Switlyk and Lloyd’s Acceptance Corporation which culminated in a verdict of $21,305.00 in favor of Janson. When Janson moved to execute on her $21,305.00 judgment, she issued Interrogatories in Aid of Execution upon Cozen and O’Connor. Cozen and O’Connor subsequently answered the Interrogatories by admitting that it had been holding $21,-305.00 in its escrow account but stated these funds had been deposited by Switlyk with the firm as a retainer and “war chest” to fund Switlyk’s defense in the Janson action and the Tersigni case. Cozen and O’Connor further stated that $18,-000. 00 of these funds were paid to Tersigni in settlement of his lawsuit against Switlyk. Therefore, Cozen and O’Connor stated only $3,206.25 remained. Additionally, Cozen and O’Con-nor stated that Switlyk had been billed for and presently owed the firm in excess of $3,206.25 for legal services that the firm had performed on his behalf.

After receiving Cozen and O’Connor’s response to Interrogatories in Aid of Execution, Janson filed suit against Cozen and O’Connor. In her initial complaint, Janson asserted in Count I that Cozen and O’Connor breached its fiduciary duty to her by first representing to her that the proceeds from the sale of her stock rested in the firm’s escrow account thereby becoming her fiduciary and owing her a duty to maintain the funds, intact, and not to disperse them without her authorization. In Count II of her complaint, Janson alleged that Cozen and O’Connor, through its representation that it was holding $21,305.00 in its escrow account, intended Janson to detrimentally rely upon this representation and not pursue any legal action to protect these funds by way of seeking summary judgment and/or requesting that the funds be interpled, thereby committing an act of fraud against her.

After the trial court denied Cozen and O’Connor’s preliminary objections, Cozen and O’Connor filed an answer and new matter to the complaint. In this answer, Cozen and O’Connor specifically denied that either Switlyk or the firm had ever represented to Janson that the $21,305.00 was being held in the firm’s escrow account for her benefit, rather Switlyk merely represented that sum of $21,305.00 was currently being held in the firm’s escrow account. Additionally, Cozen and O’Connor averred in its answer that the funds had been placed in the firm’s escrow account as a retainer and “war chest” for the purposes of funding Switlyk’s defense in the Janson and Tersigni matters. Finally, Cozen and O’Connor specifically denied that it ever became Janson’s fiduciary or owed her any duty not to disperse these funds. Cozen and O’Connor further specifically denied that Janson and her attorneys were justified in relying upon the assumption that these monies would remain in the firm’s escrow account indefinitely.

In its new matter, Cozen and O’Connor raised the defense that the allegations contained in Janson’s complaint were legally insufficient to state a cognizable cause of action for either breach of fiduciary duty or fraud and therefore should be dismissed. Subsequently, Janson filed an amended complaint seeking punitive damages in excess of $50,000.00 based on Cozen and O’Connor’s alleged intentional, willful, wanton, and reckless misconduct. Cozen and O’Connor filed preliminary objections to the amended complaint asserting that Jan-son’s complaint was legally insufficient to set forth causes of action for breach of fiduciary duty or fraud, therefore she was not entitled to receive either compensatory or punitive damages.

On December 2,1993, the Honorable F.P. Kimberly McFadden, entered an order with a statement of reasons denying Cozen and O’Connor’s preliminary objections to the amended complaint. Cozen and O’Connor then filed an answer to the amended complaint with a new matter. In this answer and new matter, Cozen and O’Connor once again specifically denied Janson’s breach of fiduciary duty and fraud causes of action. Cozen and O’Connor also denied that Janson was entitled to receive punitive damages. Finally, in its new matter, Cozen and O’Connor raised the same defenses it had previously raised in its answer to Janson’s previous complaint.

The parties then both filed motions for summary judgment. Oral argument on the parties’ motions for summary judgment was held before the Honorable James C. Hogan. Following oral argument, Judge Hogan entered an order with an opinion granting summary judgment in favor of Janson for $21,305.00 but denying her request for punitive damages. These timely cross-appeals followed.

On appeal, the parties raise the following issues for our review:

1. DID THE COURT BELOW FIND THE DEFENDANT LAW FIRM HAD COMMITTED FRAUD?
2. DID NOT THE COURT BELOW ERR IN HOLDING THAT A VOLUNTARY ESCROW AGREEMENT WAS CREATED BETWEEN THE PARTIES, PURSUANT TO WHICH THE DEFENDANT LAW FIRM, AS ATTORNEY FOR ONE PARTY IN THE UNDERLYING LITIGATION, BECAME THE ESCROW AGENT FOR BOTH PARTIES IN THAT LITIGATION AND OWED BOTH ITS OWN CLIENT AND ITS CLIENT’S LITIGATION ADVERSARY A FIDUCIARY DUTY?
3. DID NOT THE COURT BELOW ERR IN HOLDING THAT THE DEFENDANT LAW FIRM BREACHED THE AFORESAID FIDUCIARY DUTY WHEN IT FOLLOWED ITS OWN CLIENT’S EXPRESS INSTRUCTIONS AND DISBURSED A SUM OF MONEY THAT ITS OWN CLIENT HAD DEPOSITED WITH IT?

(Cozen and O’Connor’s Brief at 1).

WHETHER THE COURT BELOW ERRED BY FAILING TO AWARD PUNITIVE DAMAGES IN FAVOR OF CROSS-APPELLANT AND AGAINST CROSS-APPELLEE IN LIGHT OF THE FACT THAT THE COURT DID FIND THAT CROSS-APPELLEE KNOWINGLY BREACHED ITS FIDUCIARY DUTY OWED TO CROSS-APPELLANT AND COMMITTED A FRAUD UPON HER.

(Janson’s Brief at 3).

At the outset, we note that in reviewing orders granting summary judgment, our scope of review is limited. This Court has previously summarized the appropriate standard as follows:

The relevant elements necessary to permit summary judgment are as follows:
First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Second, the moving party must be entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issue of material fact exists. However, the non-moving party may not rest upon averments contained in its pleadings; the non-moving party must demonstrate that there is a genuine issue for trial. The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Finally, an entry of summary judgment is granted only in cases where the right is clear and free of doubt. We reverse an entry of summary judgment when the trial court commits an error of law or abuses its discretion.
Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98-99, 644 A.2d 1251, 1254 (1994) (footnote and citations omitted).

Blackman v. Federal Realty Inv. Trust, 444 Pa.Super. 411, 415, 664 A.2d 139, 141-42 (1995).

For the purposes of clarity, we will begin our analysis by addressing the second and third issues raised in Cozen and O’Connor’s cross appeal. In its second and third issues on appeal, Cozen and O’Connor maintains that Judge Hogan erred by holding that Cozen and O’Connor had breached its fiduciary duty to Janson when it acted upon Switlyk’s instructions to utilize a portion of the $21,206.25, that had been placed in its escrow account by Switlyk, to settle the Tersigni matter. Cozen and O’Connor asserts that the fact that Attorney Bennett had stated to Janson that funds from the sale of the stock had been placed in an escrow account did not necessarily cause an escrow agreement to occur. Firstly, Cozen and O’Connor argues that at no time did it represent to Janson or her attorneys that the $21,206.25 was being held in escrow for her benefit or that this sum would remain in escrow until the litigation between Janson and Switlyk was resolved. Secondly, Cozen and O’Connor contends that in order for a valid escrow agreement to arise, the contingency that will trigger the disbursement of the escrowed funds must be imposed at or before the time of deposit. Cozen and O’Connor claim no such “meeting of the minds” ever occurred between Switlyk and Janson regarding the extent of the alleged escrow agreement and the terms and conditions that would govern the disposition of these funds. Finally, Cozen and O’Connor submits that under the circumstances of this case, no escrow agreement could have ever arisen because the law firm’s representation of Switlyk placed it in an adversarial role towards Janson, and therefore it would have been a conflict of interest for the law firm to also act as a fiduciary of both parties as depository of any alleged escrow agreement between the parties.

At common law an escrow was an instrument for the conveyance of land deposited by the grantor with a third party to be kept by the latter until the performance of . a condition or the happening of a certain event and was then to be delivered over to the grantee. The doctrine of escrow was extended at an early date to all sealed instruments and subsequently, to all written instruments importing legal obligations: 19 Am.Jr. 419; 30 C.J.S. 1191-1194. More recently the concept has been further expanded to include money and personal property; 30 C.J.S. 1194; see footnote 1; Angelcyk v. Angelcyk, 367 Pa. 381, 384 [80 A.2d 753 (1951)].
The condition or the contingency upon which the escrow is to be delivered by the depositary to the grantee, obligee or promisee, is expressed by an agreement of the parties termed the “escrow agreement” which may be in writing, or oral, or partly in writing and partly oral (Angelcyk v. Angelcyk, supra). In order, to be legally effective the escrow agreement must be a valid contract between all of the parties and must set forth the nature of the escrow and the conditions of delivery. In the absence of such a contract, the grantor, obligor or promisor may recall the escrow and the agreement is unenforceable: 19 Am.Jur. 421. A valid escrow agreement must be so complete that it only remains for the grantee or other person to perform the condition, or the event to happen, to give the instrument effect or to compel delivery to him of the money or personal property: 30 C.J.S. 1192.

Spedding v. Patrick, 35 Northam. 220, 226 (1959).

The depositary (of an escrow or) under an escrow agreement is generally considered to be an agent (or trustee) for both parties — a special agency whose authority must be strictly construed, and who is bound by the terms of the escrow agreement. Kreuer v. Union National Bank of McKeesport, 276 Pa. 201, 205, 206, 119 A. 921; Kellogg v. Curry, 1951, 101 Cal.App.2d 856, 226 P.2d 381; People v. Hess, 1951, 104 Cal.App.2d 642, 234 P.2d 65; 21 C.J., page 878, 30 C.J.S., Escrows, § 8; 11 Am. & English Encyclopedia Law, 2d Ed., p. 345; 19 Am.Jur., p. 430, sec. 13.

Paul v. Kennedy, 376 Pa. 312, 315, 102 A.2d 158, 159 (1954). See also Samango v. Pileggi, 363 Pa.Super. 423, 526 A.2d 417 (1987), allocatur denied, 517 Pa. 624, 538 A.2d 877 (1988). Accordingly, an escrow holder cannot be the agent of only one of the parties. Foreman v. Todd, 83 Idaho 482, 485, 364 P.2d 365, 366 (1961). Therefore, as a general rule, an instrument or funds cannot be deposited as an escrow with an agent or attorney of the grantor or obligor, because the possession of the instrument by such agent or attorney is equivalent to possession of it by the grantor or obligor and is revocable by him. 30A C.J.S. Escrows § 7d 984. See also Progressive Iron Wks. Rlty. Corp. v. Eastern Mill. Co., 155 Me. 16, 150 A.2d 760 (1959); Pickle v. Whitaker, 224 S.W.2d 741 (1949); Brown v. Brown, 192 Ga. 852, 16 S.E.2d 853 (1941); Home Ins. Co. of New York v. Wilson, 210 Ky. 237, 275 S.W. 691 (1925); Day v. Lacasse, 85 Me. 242, 27 A. 124 (1892); Hubbard v. Greeley, 84 Me. 340, 24 A. 799 (1892). Under some limited circumstances, however, an agent or attorney of one of the parties may act as the escrow holder. Lipman v. Noblit, 194 Pa. 416, 45 A. 377 (1900); Cradock v. Cooper, 123 So.2d 256, 258 (Fla.Dist.Ct.App.1960) (citing Lipman v. Noblit, supra); Snodgrass v. Thomson, 202 Okl. 209, 211 P.2d 521 (1949). Thus, “the attorney of the grantor of the subject matter of the escrow agreement may act as escrow agent so long as his duties do not involve a conflict of interest with, or a violation of, the duty to his client as principal, and so long as the condition of the escrow is not made dependent upon the client’s volition.” Cradock v. Cooper, supra at 257. See also Entertainment & Amusements of Ohio v. Barnes, 49 Misc.2d 316, 317, 267 N.Y.S.2d 359, 362 (1966); Progressive Iron Wks. Rlty. Corp. v. Eastern Mill. Co., supra at 19, 150 A.2d at 762; Snodgrass v. Thomson, supra at 211, 211 P.2d at 523; McGriff v. McGriff, 48 Ohio Law Abstract 218, 223-24, 74 N.E.2d 619, 622 (1947); Levin v. Nedelman, 141 N.J.Eq. 23, 30, 55 A.2d 826, 831 (1947), reversed on other grounds, 142 N.J.Eq. 769, 61 A.2d 76 (1948); Gronewold v. Gronewold, 304 Ill. 11, 16, 136 N.E. 489, 491 (1922); Henry v. Hutchins, 146 Minn. 381, 386, 178 N.W. 807, 809 (1920); Kelly v. Chinich, 91 N.J.Eq. 97, 103, 108 A. 372, 374 (1919). The intention of the parties at the time of deposit is controlling as to whether an attorney is acting as an individual or in his capacity as attorney for one of the parties. Progressive Iron Wks. Rlty. Corp. v. Eastern Mill. Co., supra at 20, 150 A.2d at 762; 30 C.J.S. § 7d, p. 985. See also Eddy v. Pinder, 131 Me. 139, 159 A. 727 (1932).

Instantly, under the particular facts of this case, a valid three-sided escrow agreement could not have arisen among Janson, Switlyk and Cozen and O’Connor during the time period before Switlyk instructed Cozen and O’Connor to utilize $18,000.00 of the $21,206.25 deposited in the firm’s escrow account to settle the Tersigni matter. We reach this conclusion through the following reasoning,

Switlyk, originally retained the law firm of Cozen and O’Connor to represent him in his dispute with Janson with a member of the firm, Richard C. Bennett, Esquire, acting as his counsel. Shortly thereafter, Switlyk forwarded a check for $21,206.25 to Attorney Bennett instructing him to place those funds in Cozen and O’Connor’s escrow account. When these funds were deposited by Attorney Bennett into Cozen and O’Connor’s escrow account, he was acting at the instruction of his client, Switlyk. Janson played no role or had no input in Switlyk’s decision to have the funds that Switlyk gained from the sale of Janson’s stock into Cozen and O’Connor’s escrow account. The first time that Janson learned that the funds which Switlyk had received from the sale of her stock had been placed by Switlyk’s counsel into his law firm’s escrow account was when Switlyk filed an answer to her complaint. All actions taken by Attorney Bennett during the entire time period from the date on which the $21,206.25 was deposited into Cozen and O’Connor’s escrow account until the end of the litigation between Janson and Switlyk were taken on behalf of his client, Switlyk. At no time during this time period could Attorney Bennett have been deemed as acting in any capacity other than Mr. Switlyk’s counsel. Therefore, a valid escrow agreement could not have arisen at the time the funds were placed into Cozen and O’Connor’s escrow account. See Progressive Iron Wks. Rlty. Corp. v. Eastern Mill. Co., supra (the intention of the parties at time of deposit is controlling as to whether an attorney is acting as an individual or in his capacity as attorney for one of the parties). See also Simmet v. Graeber, 295 Pa. 510, 514, 145 A. 528, 529 (1929) (an escrow contract will not arise where eventual transferee is not a party to the transaction). Thus, a legally effective escrow agreement between Switlyk, Janson and Cozen and O’Connor which set forth the nature of the escrow and conditions of delivery never arose. Accordingly, due to the absence of such an escrow agreement, Switlyk was entitled to recall at any time the funds which he had placed in Cozen and O’Connor’s escrow account. See Spedding v. Patrick, supra. Switlyk exercised precisely that course of action when he directed his attorney, Richard C. Bennett, Esquire, to utilize a portion of these funds ($18,000.00) to settle the Tersigni matter. As Switlyk’s attorney, Richard C. Bennett, was compelled by his duty towards his client to follow these instructions and use a portion of these funds to settle the Tersigni matter. Accordingly, absent a valid escrow agreement, neither Attorney Bennett, nor his law firm, Cozen and O’Connor breached any fiduciary duty toward Janson regarding these funds because no fiduciary duty towards her ever existed. As such, Janson must attempt to recover on her judgment against Switlyk from him and not from Cozen and O’Connor. Thus, the trial court committed an error of law by holding that a valid escrow agreement had arisen among Janson, Switlyk and Cozen and O’Connor and that Cozen and O’Connor had breached its fiduciary duty towards Janson by paying out the funds that had been placed in its escrow account by Switlyk to settle the Tersigni matter.

Based upon the foregoing, the trial court’s order entering summary judgment against Cozen and O’Connor and directing it to pay $21,206.25 plus interest is reversed and the case is remanded to the trial court for the entry of summary judgment in favor of Cozen and O’Connor.

Reversed and remanded.

      . Additionally, Janson averred in her complaint that Switlyk is now a resident of the State of Florida and has numerous judgments against him in various jurisdictions throughout the United States, thus rendering it extremely unlikely that she would ever succeed in collecting her judgment against him.

      . Due to our disposition of Cozen and O'Connor’s second and third issues on appeal, we need not address Cozen and O’Connor’s first issue nor the issue raised in Janson’s cross-appeal regarding her entitlement to punitive damages.


author: FORD ELLIOTT, Judge.

text:
    676 A.2d 249
    COMMONWEALTH of Pennsylvania v. John Peter ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 20, 1996.
    Filed April 29, 1996.

      Joseph P. Burt, Erie, for appellant.
    Damon Hopkins, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before HUDOCK, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Erie County on January 20, 1995. Following a jury trial, appellant was found guilty of theft by unlawful taking or disposition and receiving stolen property in connection with the theft of an automobile in the early morning hours of February 1, 1994. Appellant was sentenced to two to seven years’ incarceration, plus fines, costs, and restitution. No post-sentencing motions were filed, and this timely appeal was then filed on February 17, 1995.

Appellant raises two inter-related issues on appeal. In his first issue, appellant claims that the verdict was against the weight of the evidence. In his second issue, he claims ineffectiveness of counsel for failing to file post-sentencing motions to preserve the weight of the evidence issue. (Appellant’s brief at 4.) We are unable to address this first issue, because appellant has failed to file post-sentencing motions. In Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995), a case in which appellant raised the weight of the evidence issue for the first time on appeal, having chosen not to file post-sentencing motions, this court stated:

It seems clear ... that this Court cannot entertain, in the first instance, a request for a new trial on the grounds that the verdict was contrary to the weight of the evidence. This is not an issue of waiver. Even though, as a general rule, a defendant need not file a post-sentence motion in order to preserve issues for appellate review, a weight of the evidence argument may be addressed only by the trial court. Therefore, a defendant, who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise this issue via post-sentencing motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court’s exercise of discretion will be subject to review.

Id. at 660, 658 A.2d at 389. Subsequently, a panel of this court held that, even if the trial court has filed an opinion pursuant to Pa. R.A.P. 1925(a) in which it addresses the weight of the evidence issue, “the trial court had no basis upon which to grant a new trial without a motion for a new trial before it. Thus, it could not exercise its discretion in granting or denying same.” Commonwealth v. Holmes, 444 Pa.Super. 257, 262-64, 663 A.2d 771, 774 (1995). As a result, the Holmes court found the weight of the evidence issue unreviewable on appeal. Id.

Because we are unable to address the merits of appellant’s first issue, we must address his second issue; namely, whether counsel was ineffective for failing to preserve the weight issue by filing post-sentencing motions. In Commonwealth v. Perez, 444 Pa.Super. 570, 664 A.2d 582 (1995), this court held that trial counsel could be found ineffective for failing to challenge the weight of the evidence before the trial court, providing the necessary prongs of an ineffectiveness claim were established. Id. at 575-579, 664 A.2d at 585-586, citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). As the Perez court noted, the first prong of any ineffectiveness claim is whether the underlying claim is of arguable merit. Perez, supra at 575-577, 664 A.2d at 585, citing Pierce, supra at 155, 527 A.2d at 974. After reviewing our supreme court’s recent analysis, in Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994), of the role of an appellate court when reviewing a challenge to the weight of the evidence, the Perez court was compelled to remand to the trial court to address the issue of counsel’s ineffectiveness. Perez, supra at 577-579, 664 A.2d at 586.

The Perez court noted, however, that “If the trial court had requested counsel to file a statement of matters complained of on appeal, the weight claims, within the context of ineffective assistance of counsel, would have been addressed in the court’s opinion.” Id. Such is the case before us instantly. While the trial court did not address the weight claims within the context of an ineffectiveness claim, the weight claims were, nevertheless, addressed by the trial court in its 1925(a) opinion, because they were included in the statement of matters complained of. As a result, we need not remand to the trial court for its determination as to whether the weight of the evidence claim is without merit; it has already made that determination. Id. at 578 n. 5, 664 A.2d at 586 n. 5 (“If the trial court finds that Perez’s weight of the evidence claim is without merit, it may properly reject the ineffectiveness claim without holding an evidentiary hearing.”).

In its opinion, the trial court noted that both appellant and the Commonwealth presented witness testimony concerning the events on the night of February 1,1994:

Two witnesses who were with [appellant] that evening unequivocally testified that they dropped [appellant] off and went to find a restroom. When they returned, [appellant] was driving a vehicle that he admitted he stole. Contrary evidence was presented by defense witnesses who stated they had seen [appellant’s] stepbrother, [one of the two Commonwealth witnesses], driving the car when he pulled into their driveway at 5:00 a.m.

Trial court opinion, 9/28/95 at 3. The trial court acknowledged that appellant’s stepbrother, who was one of the Commonwealth witnesses, had a record for crimen falsi; however, the trial court also noted that it was “within the purview of the jury to determine credibility, and they unanimously chose to lend more credibility to the Commonwealth’s witnesses, regardless of the one witness’ criminal record.” Id. As a result, the trial court’s sense of justice was not shocked. Id. at 4.

From the foregoing, it is clear that the underlying claim to appellant’s ineffectiveness issue lacks merit, as the trial court found that the verdict was not against the weight of the evidence. As a result, appellant’s ineffectiveness claim must fail.

Having found no merit to either of appellant’s issues, we affirm the judgment of sentence. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. §§ 3921(a) & 3925, respectively.

        . The sentence for receiving stolen property merged with the sentence for theft by unlawful taking.

      . This case presents yet another in a series of complicated and convoluted procedural issues created for the appellate courts by the amendments to Pa.R.Crim.P. 1410.


author: JOHNSON, Judge:

text:
    676 A.2d 251
    COMMONWEALTH of Pennsylvania, Appellant, v. Douglas F. JONES, a/k/a Donald Williams.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1996.
    Filed May 1, 1996.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for appellant.
    John Elash, Pittsburgh, for appellee.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine whether the Commonwealth may refile a criminal complaint dismissed because of the absence of the Commonwealth’s witnesses on the date set for trial. The court below concluded that such a dismissal must be appealed. Because we find that the Commonwealth may refile the complaint in such a case, we reverse and remand this matter for trial.

In April 1994, Douglas F. Jones was charged with one count each of making terroristic threats and simple assault. Jones was also charged with one summary count of harassment. Judge Paul F. Lutty dismissed the information upon the failure of the Commonwealth to produce witnesses. The Commonwealth did not appeal this dismissal, but instead reinstituted the original charges in a new criminal complaint. Jones filed a motion to quash the new complaint on the grounds that the refiling of charges was improper. Judge Lester G. Nauhaus granted Jones’s motion and quashed the complaint. This appeal followed.

The Commonwealth contends on appeal that the court below erred as a matter of law in that it required an appellate remedy for the failure-to-prosecute dismissal. We agree. The court below concluded that the decision of the Pennsylvania Supreme Court in Commonwealth v. LaBelle, 531 Pa. 256, 612 A.2d 418 (1992), requires that “[t]he only proper method to remedy a dismissal for lack of prosecution is to utilize the Appellate courts.” Trial Court Opinion, dated July 24, 1995, at 2. This conclusion misreads LaBelle.

The court in LaBelle drew a distinction between dismissals of criminal complaints based on remediable, or curable, defects and dismissals for unremediable, or incurable, defects. LaBelle, supra, at 259-60, 612 A.2d at 420. The court noted that remediable defects in a criminal prosecution such as failure to make a prima facie case, see, e.g., Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975), and the failure to charge a crime, see, e.g., Commonwealth v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978), do not bar refiling upon dismissal. 531 Pa. at 258, 260 n. 1, 612 A.2d at 419, 420 n. 1. In contrast, the defect in LaBelle, failure to file the complaint within the time mandated by Pa.R.Crim.P. 130(d) as interpreted by the Pennsylvania Superior Court, was incurable except by appeal challenging interpretation of the rule — any mere refiling would still have been untimely. The court concluded that dismissals for such incurable defects become res judicata if no timely appeal is taken. Id. The court noted that “analytical] similarity” delineates the classes of remediable-defect cases and incurable-defect cases. Id.

The defect in the instant case, failure of prosecution witnesses to appear, is analytically similar to the defects in Hetherington and Mirarchi in that remedial action by the Commonwealth (namely, production of the witnesses) is possible. The court below apparently reasoned, and Jones appears to argue, that such action would not be truly curative because it would not be production at the required time. Jones thus suggests that LaBelle entails that all dismissals for procedural defects are res judicata if not appealed. Brief of Appellee at 9. This reading of LaBelle is inconsistent with the LaBelle court’s approval of Mirarchi and makes nonsense of the curable-incurable defect distinction; it must therefore be rejected.

The analytical similarity of a dismissal for failure to produce prosecution witnesses to dismissals traditionally deemed interlocutory was confirmed by this Court in Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). In approving the refiling of a criminal complaint dismissed for failure to produce prosecution witnesses, the Court noted the following:

Ordinarily, the decision of an issuing authority to dismiss a complaint is deemed interlocutory, and the Commonwealth’s sole avenue of redress is to bring the matter before another issuing authority before the statute of limitations period expires. Commonwealth v. Genovese, 493 Pa. 65, 69 n. 7, 425 A.2d 367, 369 n. 7 (1981); Commonwealth v. Hetherington, 460 Pa. 17, 21-22, 331 A.2d 205, 208 (1975); Riggins Case, 435 Pa. 321, 323, 254 A.2d 616, 617 (1969); McNair’s Petition, 324 Pa. 48, 54, 187 A. 498, 501 (1936). The doctrines of collateral estoppel, res judicata, law of the case, and stare decisis have no operation in such proceedings; rather, the matter is heard de novo.

Id. at 179-80, 532 A.2d at 848. To the extent that Jones’s argument depends on the fact that the defect in the instant prosecution occurred at the trial level as opposed to an earlier stage of the proceeding (such as that involved in Allem), see Brief of Appellee at 14, the argument is not persuasive under LaBelle. In the instant case, as in the cases of other remediable defects, jeopardy had not attached at the time of the dismissal, see infra, the defect “[had] to do with the presentation of evidence which, if true, would sustain the charge,” LaBelle, supra, at 259, 612 A.2d at 420, and little or no damage was done to the interests of the defendant below. In contrast, the incurable defect found in LaBelle involved violation of a rule of limitation; such violations intrinsically involve legislatively recognized, significant, and permanent damage to the interests of defendants. Instructively, all of the other cases cited by Jones in support of the trial court’s reading of LaBelle involve similar prosecutorial failures to take timely action. See Commonwealth v. Sweeney, 376 Pa.Super. 476, 546 A.2d 624 (1988)(involving dismissal of charges for violation of Pa.R.Crim.P. 1100 (requiring trial within 180 days of filing of complaint)), appeal denied, 521 Pa. 620, 557 A.2d 723 (1989); Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989)(same); Commonwealth v. Andrews, 251 Pa.Super. 162, 380 A.2d 428 (1977) (same). As in LaBelle, no action by the Commonwealth could even conceivably have remedied the relevant defects in these cases.

Affirmance of the decision below would improperly elevate a defendant’s relatively limited interest in avoiding the inconvenience of an unnecessary court appearance above the Commonwealth’s interest in avoiding a costly, lengthy, limited and uncertain appellate remedy for a dismissal resulting from a relatively minor procedural deficiency. In cases involving procedural failings similar to that of the instant case, the decision below would make the trial court’s discretion, subject to review only for abuse, the sole protector of the Commonwealth’s vital interest in prosecuting those suspected of crimes. These are not desirable results. Under LaBelle, the defect in the instant case is remediable without resort to appeal and thus the Commonwealth is not barred from refiling by the doctrine of res judicata.

Despite the fact that the court below held principles of double jeopardy inapplicable in this case, Jones argues in the alternative that the decision below should be affirmed under those principles. This argument is without merit. Jeopardy did not attach in this case. Under Pennsylvania law, jeopardy attaches when the jury is sworn or, in a bench trial, when the trial court begins to hear evidence. Commonwealth v. Metzer, 430 Pa.Super. 217, 231 n. 4, 634 A.2d 228, 234 n. 4 (1993); Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987)(hearing of evidence started with offer of proof by prosecution and argument thereon). The court did not begin to hear evidence in the instant case, but instead granted a motion to dismiss upon the lack of prosecution witnesses. Accordingly, neither the double jeopardy clauses of the United States and Pennsylvania constitutions nor 18 Pa.C.S. § 109, the statutory codification of double jeopardy principles, provides a basis for affirmance of the decision below.

Based upon the foregoing, we reverse the order quashing the complaint, and we remand the matter for trial.

Order REVERSED. Case REMANDED. Jurisdiction RELINQUISHED.