author: JOHNSON, Judge: CIRILLO, Judge,

text:
    597 A.2d 130
    COMMONWEALTH of Pennsylvania v. Frank OSELLANIE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1991.
    Filed Sept. 25, 1991.

      Harold M. Kane, David S. Nenner, Philadelphia, for appellant.
    Michael J. Barrasse, Dist. Atty., Scranton, for Com.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Frank Osellanie appeals from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County following his conviction for second-degree murder, third-degree murder, voluntary and involuntary manslaughter, kidnapping, rape and involuntary deviate sexual intercourse. See 18 Pa.C.S. §§ 2502(b), 2502(c), 2503, 2504, 2901, 3121, 3123. Osellanie’s convictions stem from the abduction, torture, rape and murder of a nine year old girl on May 14, 1989.

Following Osellanie’s jury trial, post-verdict motions were filed and denied by the Honorable Carlon M. O’Malley. Judge O’Malley sentenced Osellanie to a term of life imprisonment for the second-degree murder conviction and to consecutive terms of not less than twenty years’ nor more than forty years’ imprisonment for the kidnapping and rape convictions. Judge O’Malley found that the offenses of third-degree murder, involuntary and voluntary manslaughter, and involuntary deviate sexual intercourse merged with the second-degree murder conviction for sentencing purposes.

This timely appeal was then filed. On February 1, 1991, subsequent to Osellanie’s filing the appeal presently before us, Judge O’Malley granted Osellanie’s petition to proceed in forma pauperis. We note, however, that Osellanie continues to be represented by private counsel.

Osellanie raises three issues for our review:

1) Did the closing argument of the prosecutor contain several prejudicial and improper remarks referring to the facts not in evidence and inflammatory in nature thereby denying the Defendant, Frank Osellanie, a fair trial?
2) Did the Honorable Court err in allowing the Jury to view several photographs depicting decedent’s charred body?
3) Did the Honorable Court err in not changing venue or in the alternative not granting a change of venire?

Osellanie has failed to supply us with a complete record for our review. Pa.R.A.P. 1921. Specifically, he has failed to provide us with a transcript of his trial proceedings. Pa.R.A.P. 1911. Although Osellanie is before this court in forma pauperis it is nonetheless the appellant’s responsibility to order the transcript required and ascertain its presence in the record prior to certification for appeal. Pa.R.A.P. 1911, 1921, 1922. Commonwealth v. Lowry, 385 Pa.Super. 236, 560 A.2d 781 (1989); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988). Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). We are limited to considering only those facts which have been duly certified in the record on appeal. Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988), citing Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987).

Inquiries as to the whereabouts of the trial transcript by this court have proved unavailing. Moreover, we are compelled to remind defense counsel that it is not the responsibility of this court to obtain a copy of the trial transcript for the purposes of reviewing the client’s claims. See Commonwealth v. Buehl, 403 Pa.Super. 143, 588 A.2d 522 (1991). We direct counsel to Pennsylvania Rule of Appellate Procedure 1923, which provides that a statement by the appellant may be submitted to this court in the absence of a transcript. Without a trial transcript or a statement in lieu of a transcript, we are unable to conduct a proper review and analysis of Osellanie’s first issue, which alleges improper remarks by the prosecutor in his closing. Therefore, we must conclude that this issue has been waived for the purpose of appellate review. Commonwealth v. Lowry, supra.

In addressing Osellanie’s second claim we note that we are again thwarted in our efforts because Osellanie has failed to provide us with the photographic exhibits to which he objects. Pa.R.A.P.1921. However, as Judge O’Malley has described the photographs at issue, we shall address this claim of trial court error, relying upon his written depiction. Judge O’Malley has described the pictures of the victim’s body as “partially clothed” and “charred.” Trial Court Opinion at 4. Osellanie describes the photographs as “gruesome” and “mortifying” but notes only that the photographs showed the victim “unclothed and stretched out on the Coroner’s table. The body was severely burned and disfigured.” Appellant’s brief at 35. Admission of photographs depicting the corpse of a homicide victim or the scene of the crime lies within the sound discretion of the trial court whose decision will not be disturbed absent an abuse of discretion. Commonwealth v. Edwards, 521 Pa. 134, 151, 555 A.2d 818, 827 (1989). If the trial court finds that the photograph is not inflammatory it may be admitted if it is relevant to the facts of the case. Id. Even a gruesome or inflammatory photograph is admissible if its probative value outweighs its prejudicial effect on the jury. Id.

In Edwards, the trial court admitted thirteen photographs of the victim’s body. The photographs depicted the beaten face of the victim, the strangulation area of the victim’s neck, wounds on the victim’s hands and fingers, bite marks on the victim’s legs, and explicit photographs of the victim’s chest and abdomen related to the sexual nature of the attack. Id. On appeal, our supreme court concluded that “[t]he photographs admitted were not inflammatory and were relevant in aiding the jury to understand the events of the crime charged.” Id.

The description of the photographs by both the trial court and by Osellanie certainly do not rise to to the level of explicitness which the supreme court found acceptable in Edwards. Furthermore, Judge O’Malley permitted the photographs into evidence to substantiate the coroner’s testimony as to the cause of the victim’s death either by trauma to her head or by burning and inhalation. As such, admission of the photographs in question was not an abuse of the trial court's discretion. Edwards, supra.

Osellanie next contends that the trial court erred in denying his request for a change of venue or venire due to the pre-trial publicity surrounding the victim’s disappearance and death. It is axiomatic that the grant or denial of a change of venue rests within the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Tedford, 523 Pa. 305, 323, 567 A.2d 610, 618 (1989). In Tedford, we acknowledged that there are instances when pre-trial publicity is so great that prejudice of a jury is presumed.

Pre-trial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports.

Id., 523 Pa. at 324, 567 A.2d at 619 (citations omitted). However, the accused’s right to a fair trial is preserved if the trial judge is “particularly protective of the appellant’s right to a fair trial before an impartial jury throughout the jury selection process.” Id., 523 Pa. at 326-27, 567 A.2d at 620. Judge O’Malley notes that in the present case several prospective jurors who had knowledge of crimes attributed to Osellanie were excused for cause and were immediately separated from the jury pool. Furthermore, the impaneled jury was sequestered throughout the trial and jury deliberations. Judge O’Malley also notes that the defense did not even exhaust all their allotted peremptory challenges during the voir dire. Although Osellanie has not provided us with a transcript of the voir dire, see Pa.R.A.P.1911, 1921, supra and Buehl, supra, he has provided us with copious copies of newspaper articles to support his claim of pervasive prejudicial pre-trial publicity. However, without a transcript of the voir dire we cannot presume that the jury was tainted by this publicity. Buehl, supra; Dorn, supra. We are compelled, therefore, to conclude that the protections instituted by Judge O’Malley were sufficient to preserve Osellanie’s right to a fair trial. Tedford, supra.

Brief mention must be made of the position taken by our most highly esteemed colleague, the Honorable Vincent A. Cirillo, in his accompanying Dissenting Opinion. The issue of inconsistent verdicts which Judge Cirillo discusses has not been raised by either party on this appeal. Osellanie has been represented by privately-retained counsel throughout these proceedings. The Motion for New Trial and an [sic] Arrest of Judgment filed June 25, 1990 makes no mention of the alleged inconsistent verdicts. We believe that the failure of Osellanie to raise assignments of error in post-verdict motions results in the preclusion of later review of those issues by an appellate court. Commonwealth v. Monarch, 510 Pa. 138, 146-47, 507 A.2d 74, 78 (1986).

Were we, as an intermediate appellate court, to attempt to review the issue, we would be faced with the clear holding of the majority opinion in Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978) cert. denied sub nom. Brightwell v. Pennsylvania, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 664, (1978). In that case, the Honorable Samuel J. Roberts, writing for six of the seven justices of our Supreme Court, said:

Finally, appellant asserts that the jury could not lawfully return a verdict of guilty of both murder of the third degree and voluntary manslaughter. This issue has not been preserved for appellate review. When the jury returned its verdict, and before the court accepted it, the court called counsel to sidebar and informed them that “it is my understanding that the verdict in this case would be recorded as guilty of murder in the third degree ... Do you agree on that?” Both counsel agreed. The court then announced that appellant had been found guilty of murder of the third degree. Again, appellant did not interpose an objection. Had appellant objected and the court determined the verdict was inconsistent, the court could have directed the jury to retire and reconsider its verdict. By waiting until post-verdict motions to raise the issue, appellant deprived the court of an opportunity to correct any error. Consequently, appellant may not now complain of inconsistency in the verdict.

479 Pa. at 546-47, 388 A.2d at 1066. (citations and footnote omitted).

We believe we are bound to limit our review to those three issues preserved and raised on this appeal by Osellanie. Any other claims, such as that addressed by Judge Cirillo, are properly left to subsequent collateral proceedings, if any, under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We therefore take no position on, nor do we consider, whether the presence or absence of malice is a separate and distinct element of the crime of either murder or manslaughter. And we do not attempt to decide the outcome of any future collateral proceeding involving issues not now before us.

Judgment of sentence AFFIRMED.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

I believe that the judgment of sentence should be reversed and a new trial granted Osellanie, except as to the offense of first-degree murder for which Osellanie was acquitted, because the jury could not lawfully return a verdict of guilty of all the criminal homicide offenses with which Osellanie was charged. Cf. Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978) (Manderino, J., dissenting), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 664 (1978). Generally, we recognize that

[consistency in criminal verdicts is not necessary, and logical inconsistencies will not serve as grounds for reversal. Inconsistent verdicts are proper so long as the evidence is sufficient to support the convictions the jury has returned.

Commonwealth v. Maute, 336 Pa.Super. 394, 407, 485 A.2d 1138, 1145 (1984) (emphasis added). See also Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989), alloc. denied, 525 Pa. 626, 578 A.2d 413 (1990); Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983); Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982); Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980).

I begin with a discussion of Osellanie’s inconsistent jury verdicts with the Crimes Code definition of the various grades of criminal homicide, each of which is a separate offense:

§ 2502. Murder
(a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
§ 2503. Voluntary manslaughter
(a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but this belief is unreasonable.
(c) Grading. — Voluntary manslaughter is a felony of the second degree.
§ 2504. Involuntary manslaughter
(a) General Rule. — A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
(b) Grading. — Involuntary manslaughter is a misdemeanor of the first degree.

18 Pa.C.S. §§ 2502, 2503, 2504.

In order to determine the grade of homicide, if any, of which the defendant is guilty “it is necessary to look to his state of mind; the requisite mental state must be proved beyond a reasonable doubt ...” Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). See also 18 Pa.C.S. § 302 (a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense); 18 Pa.C.S. §§ 2501, 2502. In this Commonwealth, “murder is still governed by the Common law definition: the unlawful killing of another with malice aforethought, expressed or implied.” Commonwealth v. Sanders, 299 Pa.Super. 410, 421, 445 A.2d 820, 825 (1982) (citing Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973)). See also Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990); Commonwealth v. Fisher, 342 Pa.Super. 533, 493 A.2d 719 (1985); Commonwealth v. Drum, 58 Pa. 9 (1868); 18 Pa.C.S. 2502. See also Model Penal Code § 210.2(l)(a).

Malice, as an element of murder, is defined as “that condition of mind which prompts one to take the life of another without just cause or provocation.” Black’s Law Dictionary 862 (5th ed. 1979). In other words, “a criminal homicide is committed with malice if it is committed with an intent to kill.” Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977). See also Austin, 394 Pa.Super. at 153, 575 A.2d at 145 (“malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duties”). The element of malice must be established beyond reasonable doubt to sustain a conviction of murder. Austin supra; Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972). Furthermore, malice is the distinguishing factor between manslaughter and murder. See 18 Pa.C.S. §§ 2502, 2503, 2504; Austin, supra; Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982); Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981). Absence of malice, therefore, is the critical determinate in establishing voluntary or involuntary manslaughter. See 18 Pa.C.S. §§ 2503, 2504; Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987), alloc. denied, 520 Pa. 605, 553 A.2d 967 (1988); Garcia, supra; Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977). See also Model Penal Code § 210(l)(b).

In this Commonwealth, as in most jurisdictions, manslaughter, which at common law was a single offense, is divided into two separate offenses. See 18 Pa.C.S. §§ 2503, 2504, Garcia, supra; Polimeni, supra; Perkins & Boyce, supra. Contra Model Penal Code §§ 210.3, 210.4 (provides for manslaughter committed recklessly or a homicide which would otherwise be murder when it is committed under extreme mental or emotional disturbance). Voluntary manslaughter is a homicide committed under a sudden and intense passion resulting from serious provocation or from an unreasonable belief that the killing is justified. 18 Pa.C.S. § 2503. See also Commonwealth v. Voytko, 349 Pa.Super. 320, 503 A.2d 20 (1986); Garcia, supra. Involuntary manslaughter, however, is a misdemeanor homicide where death occurs as a result of criminal negligence. 18 Pa.C.S. § 2504; Commonwealth v. Stehley, 350 Pa.Super. 311, 504 A.2d 854 (1986); Polimeni, supra.

An analysis of the elements of the two manslaughter offenses leads me to conclude that guilty verdicts for both voluntary manslaughter and involuntary manslaughter are clearly inconsistent. The homicide is either committed as a result of passion or provocation or an unreasonable belief that the killing is justified, or as a result of acts, “whether lawful or unlawful, done in a reckless or grossly negligent matter.” Polimeni, 474 Pa. at 442, 378 A.2d at 1195. See also Garcia, supra; 18 Pa.C.S. §§ 2503-2504. It is simply a factual and legal impossibility to find that the killing was both unintentional (involuntary manslaughter) and intentional but committed when the actor was under the influence of a sudden and intense provocation or an unreasonable belief (voluntary manslaughter).

In the case at hand, the jury returned guilty verdicts for both charges of manslaughter. I am at a loss to explain why defense counsel failed to object to this inconsistency and why the trial court did not order the jury to redeliberate in order to return a clear and unequivocal verdict. See Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d 912 (1972) (prior to recording the verdict, there are two accepted ways of verdict molding: 1) if the jury’s error is defective in form only, then the judge may correct it in open court, and 2) if the error is substantive, the court must send the jury back with additional instructions for further deliberation). See also Commonwealth v. Craig, 471 Pa. 310, 370 A.2d 317 (1977); Commonwealth v. Williams, 360 Pa.Super. 23, 519 A.2d 971 (1986); Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). Nonetheless, I am convinced that such an error warrants reversal.

The greater inconsistency in this case, however, lies in the guilty verdicts returned by the jury, and allowed to stand by the trial judge, for both manslaughter offenses and the two murder offenses. As I previously noted, absence of malice is the critical determinate in establishing voluntary or involuntary manslaughter, as opposed to murder. White, supra; Garcia, supra; Polimeni, supra. Logically, therefore, if the evidence presented is only sufficient to support a killing without malice, it follows that the evidence cannot be sufficient to support the same killing with malice. “The finding of an absence of malice contained in the voluntary manslaughter verdict works as an acquittal of the murder charge.” Brightwell, 479 Pa. at 550, 388 A.2d at 1068 (Manderino, J., dissenting).

Instantly, I cannot ignore the obvious and inherently illogical inconsistences in Osellanie’s multiple guilty verdicts for different degrees of homicide arising out of the same incident. Brightwell, supra (Manderino, J., dissenting). I am compelled to conclude that the jury’s finding of an absence of malice in the homicide creates a fatal ambiguity in the resulting verdicts. Cf. United States v. Barrett, 870 F.2d 953, 954 (3d Cir.1989) (where jury returned a general guilty verdict and appellate court was unable to determine whether jurors had voted to convict on greater or lesser offense charged, verdict was fatally ambiguous and case remanded for a new trial). I would, therefore, vacate Osellanie’s judgment of sentence and remand the case for a new trial on the homicide charges.

      . The constitutional bar against double jeopardy precludes retrial of a criminal charge for which the defendant has been acquitted. See Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981). See also Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393 (1990).

      . After much research, I conclude that the issue of inconsistent homicide verdicts, where a jury has returned a verdict of guilty of more than one grade of homicide, has never been addressed on the merits in this jurisdiction. In each instance where this issue was raised on appeal, it has been found to have been waived because the issue was not presented to the trial court. See Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984); Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978). Our sister states of New Jersey, New York and Delaware have failed to provide us with any guidance, as have the federal courts. I raise the issue in this case sua sponte because I conclude that counsel cannot waive his client’s right to be acquitted of some or all of the charges by failing to timely object to the inconsistent verdicts. Brightwell, 479 Pa. at 550, 388 A.2d at 1068 (Manderino, J., dissenting). Nor do I think justice is served when the trial court erroneously allows inconsistent verdicts to be recorded instead of directing the jury to re-deliberate in order to arrive at consistent verdicts. See Shain, supra; Brightwell, supra; Commonwealth v. Johnson, 369 Pa. 120, 85 A.2d 171 (1952); Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922).

      . Historically, manslaughter has been commonly recognized as a lesser included offense of murder. See Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (involuntary manslaughter is a lesser included offense of murder); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (voluntary manslaughter is a lesser included offense of murder). Manslaughter is a lesser included offense of murder because the two crimes are, in the broadest sense, "different degrees of felonious homicide.” R. Perkins & R. Boyce, Criminal Law 124-125 (3d ed. 1982). See abo 18 Pa.C.S. § 2501. In terms of charging a defendant with murder, therefore, a defendant is entitled to have the jury receive instructions on and return a verdict of guilty of the lesser included offense of manslaughter. Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1980); Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977); Garcia, supra; Polimeni, supra. The purpose of the lesser included offense rule was to
      prevent the prosecution from failing where some element of the crime of murder was not made. Second, it was designed to redound to the benefit of the defendant, since its effect is actually to empower the jury to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence.

        Commonwealth v. Jones, 457 Pa. 563, 569, 319 A.2d 142, 146 (1974) (Opinion in Support of Affirmance), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974).

        For purposes of conviction, however, manslaughter is not a degree of the crime of murder, but is a distinct offense. Perkins & Boyce, supra; 18 Pa.C.S. §§ 2503, 2504. After a jury is charged, a defendant can only be found guilty of either murder or manslaughter but not of both offenses as the element of malice, required for a conviction of murder, is not an element of the lesser crime of manslaughter. Garcia, supra; Polimeni, supra; Commonwealth v. Brightwell, 479 Pa. at 550, 388 A.2d at 1068 (Manderino, J., dissenting).


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    597 A.2d 137
    COMMONWEALTH of Pennsylvania v. Allen L. SOUTH Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1991.
    Filed Sept. 26, 1991.

      Paul Burlingame, Beaver Falls, for appellant.
    Ahmed Aziz, Asst. Dist. Atty., Aliquippa, for Com., for appellee.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered June 20, 1990, in the Court of Common Pleas, Beaver County.

Appellant proceeded to a jury trial on December 13, 1989, and was found guilty of eight violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113. Timely post-verdict motions for a new trial and/or in arrest of judgment were filed and denied following argument before the court en banc on April 18, 1990. This timely appeal followed.

The facts pertinent to a discussion of this appeal were stated by the trial court as follows.

The principal Commonwealth witness at trial was one Michael Carr ("Carr”), a police informant. Carr, who was admittedly facing several criminal charges against him, had been cooperating with the police over a period of several months in an investigation of the defendant. Carr testified that on December 16, 1988, he informed the police that the defendant was in possession of a substantial amount of marijuana and was selling it. After strip-searching him, police gave Carr a marked twenty-dollar bill and instructed him to make a “buy” from the defendant. Carr went to the defendant’s apartment, purchased “an eighth of weed” (Trial Transcript, page 60) from the defendant, and paid for it with the marked twenty-dollar bill. He returned to the police, who were staked out nearby, and delivered to them a plastic baggie containing the marijuana which he had purchased.
The police obtained a search warrant and an arrest warrant and went to the defendant’s apartment. They arrested the defendant and, in making the search, uncovered the marked twenty-dollar bill which they had earlier given to Carr, two marijuana cigarettes in the defendant’s jacket, and a scale.

On appeal, appellant raises two issues: whether in a conviction for unlawful possession and delivery, it was error for the trial court to instruct the jury that the burden of proof is on the defendant to show authorization, where the defendant presented no evidence at trial of authorization, and whether trial counsel was ineffective for failing to file Omnibus Pre-Trial Motions to suppress evidence where the search warrant failed to state that the confidential informant was credible and reliable.

Initially, appellant argues that the trial court erred by instructing the jury that the burden of proof to show authorization was on appellant where appellant had not presented evidence of authorization at trial. Appellant maintains that by so instructing the jury, the trial court violated appellant’s due process rights under the 14th Amendment of the United States Constitution. In addition, appellant submits that the effect of the jury instruction was to shift the burden of proof thereby prejudicing him and warranting a new trial. Commonwealth ex. rel. Johnson v. Myers, 402 Pa. 451, 167 A.2d 295 (1961); Commonwealth v. Jordan, 407 Pa. 575, 181 A.2d 310 (1962); Commonwealth v. O’Neal, 441 Pa. 17, 271 A.2d 497 (1970); Commonwealth v. Kaminsky, 434 Pa. 38, 252 A.2d 695 (1969).

On review of an alleged erroneous and prejudicial jury instruction, this court must look at the entire charge to the jury, and not merely one isolated excerpt therefrom. Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984). Upon our review of the entire jury instruction we cannot find that appellant was prejudiced. At no time did the court shift the burden of proof on any element to appellant. As evidenced by the following excerpt, the jury was informed clearly that the Commonwealth had the burden of proving every element of the crimes charged in order to prove guilt beyond a reasonable doubt.

A fundamental principle of our system of criminal law is that the Defendant is presumed to be innocent. The mere fact that he was arrested and is accused of a crime or crimes is not any evidence against him. Furthermore, the Defendant is presumed innocent throughout the trial and unless and until you conclude, based upon careful and impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt. It is not the Defendant’s burden to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of the crime charged and that the Defendant is guilty of that crime beyond a reasonable doubt. The person accused of a crime is not required to present evidence or prove anything in his own defense. If the Commonwealth fails to meet its burden, then your verdict must be “not guilty.” On the other hand, if the Commonwealth’s evidence does prove beyond a reasonable doubt that the Defendant is guilty, then your verdict should be “guilty.”

Notes of testimony, 12/12/89 at 130-131 (emphasis added).

With respect to the issue presented by appellant, the disputed portion of the charge was as follows:

First of all, I charge you that “controlled substances” as defined under Pennsylvania’s Controlled Substances Act include both LSD and marijuana. The possession of a controlled substance is unlawful except when it is authorized. The burden of coming forward with some evi dence of authorization is on the Defendant, and there is no evidence of authorization in this case. Under the law, for a person to possess a controlled substance, he must have the power to control and the intent to control that substance. In determining whether or not the Defendant had possession of a controlled substance on the three dates in question, you should consider evidence of all facts and circumstances which may shed light on the question of whether the Defendant had the power to control and the intent to control the LSD or the marijuana.
# # * * # *
The Defendant is also charged with delivering a controlled substance on each of these three occasions. Once again, if you find that the substances were LSD and marijuana, I instruct you that LSD and marijuana are controlled substances as defined under the Commonwealth’s Act of Assembly. The delivery of a controlled substance is unlawful unless it is authorized. The burden of coming forward with some evidence of authorization is on the Defendant. There is no evidence of authorization in this case.

Notes of testimony, 12/12/89 at 126-127.

As the Commonwealth correctly notes, section 780-121 of the Controlled Substance, Drug, Device and Cosmetic Act clearly places the burden of coming forward with evidence of authorization on the defendant at trial. In Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), this court concluded that non-authorization is an element of the crime of possession. Additionally, the court emphasized that the CSDDCA sought to punish the unauthorized possession of controlled substances; not merely possession of controlled substances. However, the court also recognized that were the Commonwealth obliged to disprove every possible kind of authorization, then the mandates of the CSDDCA would be frustrated and, in effect, unenforceable. The court expounded on the established legal principle that the Commonwealth has the burden of proving every element of a crime beyond a reasonable doubt; yet, the initial burden of going forward with some evidence need not always rest on the Commonwealth. Instead, the defendant may be required to produce some evidence, in an effort to avoid jury confusion and to prevent the prosecution from being unduly hampered. Consequently, the court noted the distinction between the burden of persuasion and the burden of production and determined that in CSDDCA cases, the defendant had the burden of production of some evidence of authorization before the Commonwealth is required to come forward with evidence to rebut authorization as its burden of persuasion. This is not to say that the burden of proof shifts to the defendant; but rather that the burden of production is on the defendant, while the burden of persuasion remains with the Commonwealth to prove the elements of the charge beyond a reasonable doubt. Sojourner, supra. As set out in Sojourner:

Thus, by requiring the accused to come forward with some evidence of authorization before the Commonwealth need disprove authorization beyond a reasonable doubt, three different and important goals are achieved: (1) The constitutional rights of the accused are protected; (2) Enforcement of the act is not seriously hampered; (3) The CSDDCA conforms with the growing majority of jurisdictions which have interpreted virtually identical provisions in this fashion.

Commonwealth v. Sojourner, 268 Pa.Superior Ct. at 408 A.2d at 1115.

In a case such as the instant one, where appellant chose not to offer evidence of authorization, the court correctly noted this in its charge to the jury. The instructions given can be found in the Pennsylvania Standard Jury Instructions. Consistent with Sojourner, the subcommittee note to this instruction explains that the defendant has the burden of production, and the Commonwealth has the burden of persuasion, as to authorization. It advises the court that, although it may inform the jury of the defendant’s burden of production, in the absence of evidence of authorization, the jury should be charged only as to two elements: the possession of and intent to possess a controlled substance. On the other hand, if the defendant does come forward with credible evidence of authorization, then the jury charge should instruct as to three elements: possession, intent to possess, and non-authorization to possess a controlled substance. Instantly, the jury was charged properly on the only two elements upon which they convicted appellant: the power to control, and the intent to control a controlled substance. Consequently, appellant’s claim is without merit.

In appellant’s second argument, he contends that prior counsel was ineffective for failing to file an omnibus pre-trial motion to suppress evidence, where the search warrant failed to state that the confidential informant was credible and reliable. Appellant properly states that whether probable cause existed to support the issuance of a search warrant depends on a “totality of the circumstances” standard. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). It is the task of the issuing magistrate to view all the information before him and to determine whether the contraband will be found, more probably than not, at a specific location. Gray, supra. Thus, it is appellant’s belief that where the affidavit did not contain information regarding the informant’s reliability, then the entire search warrant must fail for lack of probable cause.

Initially, we note that a claim of ineffectiveness of trial counsel will be established if appellant demonstrates that: the specific tactic omitted by prior counsel had arguable merit; prior counsel’s chosen strategy had no reasonable basis for effectuating appellant’s interests; and, appellant was prejudiced by prior counsel’s omission. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Appellant has failed to establish his claim.

Probable cause to support the issuance of a search warrant did exist. In addition to the informant’s tip, the arresting officers corroborated the information by conducting surveillance of appellant for several months prior to securing the search warrant. Several officers participated in the surveillance of appellant, and their concerted observations further established that the information was truthful. Once apprised of the officers’ observations, the issuing magistrate had a reasonable basis to conclude that the contraband would be at the place to be searched. Gray, supra. Had prior counsel attempted to suppress the evidence, as appellant now suggests, the magistrate's decision to issue the warrant would have been upheld as the police officers’ observations provided an independent basis of probable cause. Contrary to appellant’s assertion, prior counsel was not ineffective in this regard. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Judgment of sentence affirmed.

POPOVICH, J., dissents.

      . While we find under the facts and circumstances of this case that appellant was not prejudiced by the court’s charge, we also recognize that the suggested instructions are inartfully drafted. The subcommittee note and Sojourner both address and distinguish the different types of burdens regarding authorization with legal acumen. However, we must assume that a jury of veniremen have not been so enlightened as to such distinctions. It may be that the suggested jury instructions should be rewritten to exclude the term “burden" as it relates to a defendant’s responsibility to come forward with evidence of authorization, where an alternate term would quell any potential for misunderstanding.


author: OLSZEWSKI, Judge.

text:
    597 A.2d 141
    GOODIES OLDE FASHION FUDGE CO., a Pennsylvania Corporation, Appellee, v. Peter J. KUIROS and Lisa Lavell Kuiros, Husband and Wife, and Kenneth Kuiros, Individually and t/d/b/a Kopper Kettle Fudge Factory and Jeffrey A. Kuiros, Appellants.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Sept. 27, 1991.

      Louis C. Long, Pittsburgh, for appellants.
    Theodore Kukunas, Pittsburgh, for appellee.
    Before McEWEN, OLSZEWSKI, and CERCONE, JJ.
   OLSZEWSKI, Judge.

This is an appeal from an order granting a preliminary injunction. Peter Kuiros, Lisa Kuiros, and Kenneth Kuiros, t/d/b/a Kopper Kettle Fudge Factory, and Jeffrey Kuiros (collectively, the Kuiros defendants) were ordered to cease using the secret formula, receipts, methods and techniques of Goodies Olde Fashion Fudge Co. (Goodies) and to refrain from soliciting or contacting Goodies’ customers. The Kuiros defendants appeal, claiming that the preliminary injunction is defective because Goodies has failed to post a bond as required by Pa.R.Civ.P. 1531(b). Alternatively, the Kuiros defendants argue that the covenant not to compete which is the foundation of the injunction is unenforceable because it is unrestricted as to time and area, or it lacks consideration as it was not executed ancillary to the inception of employment. The Kuiros defendants also challenge the sufficiency of Goodies’ evidence of irreparable harm. In a last-ditch effort to partially vacate the injunction, the Kuiros defendants claim that the injunction should only apply to Peter Kuiros as he was the only defendant employed by Goodies and, consequently, the only defendant to sign a covenant not to compete.

Goodies requests that we quash this appeal as interlocutory. The essence of Goodies’ argument is that the injunction, by its express terms, does not become effective until the bond has been posted. As Goodies has not posted the bond, the injunction does not yet exist. Thus, Goodies argues that there is no final order before this Court. Having reviewed the arguments of the parties, we vacate the injunction, as it has been granted without the posting of the bond required by Pa.R.Civ.P. 1531(b).

The substance of the order at issue here provides as follows:

AND NOW, to-wit, this 2nd day of November, 1990, the defendants are hereby enjoined from:
1. Using the secret formula, receipts, methods, and techniques in the manufacturing of fudge and related candy products; and
2. Soliciting or otherwise contacting any of plaintiff’s customers whose identity or business relationship with plaintiff became known to the defendants through any one of the defendants employment relationship with the plaintiff.
This injunction to take effect upon the plaintiff posting a bond in the sum of twenty thousand dollars ($20,000.00), sec. leg. et sec. reg.

It is undisputed that Goodies has not posted the bond as required by the order.

Initially, we examine Goodies’ argument that the failure to post the bond renders this order unappealable. We note that by statute and rule, preliminary injunctions, while interlocutory, are appealable as of right. See, Pa.R.A.P. 311(a)(4), 42 Pa.C.S.A., implementing 42 Pa.C.S.A. § 5105(c). In recognition of these provisions, Goodies argues that the order in question is not, in and of itself, a preliminary injunction, because it provides that injunction will take effect upon posting of the bond. While enjoying the semantical sophistry presented by this argument, we cannot agree.

Goodies relies upon Zeigenfuse v. Boltz, 401 Pa. 365, 164 A.2d 663 (1960), and Terrizzi Beverage Co. v. Local Union 830, 408 Pa. 380, 184 A.2d 243 (1962), as supporting its argument that the order at issue is not appealable. We find both cases distinguishable. Goodies cites us to the following passage in Zeigenfuse:

... where, as here, the court does no more than make absolute a rule for a preliminary injunction and directs that such injunction shall issue, it is the carrying out of the order by the issuance of the injunction that becomes appealable.

(Appellee’s brief at 10, quoting Zeigenfuse, supra, 401 Pa. at 371, 164 A.2d at 666). We believe the more relevant portions of the Zeigenfuse opinion are as follows:

[following argument on preliminary objections to the complaint] ... the court ... entered the following order: “The preliminary objections are dismissed; the rule is made absolute. The preliminary injunction shall issue.”
Ordinarily, the decree of a court awarding the injunction delineates and defines the enjoining mandate, and, thus, constitutes the injunction which is required to be secured by bond.

Id. This language, which precedes the passage quoted by Goodies, dooms the argument that this order is not a preliminary injunction.

Rather than merely making absolute the rule for the preliminary objection, the order at issue here, as quoted above, clearly enumerates which activities are prohibited and states that “the defendants are hereby enjoined.” Thus, it delineates and defines the enjoining mandate. More importantly, no further order of the trial court is necessary. Goodies need not return to the trial court after posting the bond and request that the language of the order at issue here be repeated in a subsequent order. This order is self-executing upon posting of the bond and constitutes a preliminary injunction. Therefore, it is appealable under Pa.R.A.P., Rule 311(a)(4). See, Rose Uniforms, Inc. v. Lobel, 408 Pa. 421, 424, 184 A.2d 261, 263 (1962) (distinguishing the order declared unappealable in Zeigenfuse from an order which purports to grant a preliminary injunction).

We also find Terrizzi distinguishable. There our Supreme Court found that the trial court did not have jurisdiction in the dispute due to the exclusive jurisdiction of the National Labor Relations Board under the Taft-Hartley Act of 1947. Terrizzi, supra, 408 Pa. at 383, 184 A.2d at 245. Absent jurisdiction, the trial court could not enter a valid order. Our Supreme Court noted that the order at issue also dismissed the defendants’ preliminary objections; such an order is appealable. Thus, any discussion of the appealability of the injunctive portion of that order is dicta.

The Kuiros defendants argue that a preliminary injunction issued without the posting of a bond is a nullity. “The failure of the trial court to require the posting of a bond to secure a preliminary injunction as required by Pa. R.Civ.P. 1531(b) is a fatal defect requiring an appellate court to vacate the injunction.” Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 478, 522 A.2d 1129, 1131 (1987) (emphasis added). Such relief must be granted even if the injunction is otherwise proper. Id. See also, Lawrence County v. Brenner, 135 Pa.Cmwlth. 619, 630, 582 A.2d 79, 84 (1990); Christo v. Tuscany Inc., 308 Pa.Super. 564, 567, 454 A.2d 1042, 1044 (1982); Rosenzweig v. Factor, 457 Pa. 492, 494, 327 A.2d 36, 38 (1974); Surco Products, Inc. v. Kieszek, 367 Pa. 516, 519, 80 A.2d 842, 844 (1951). These cases, while instructive, are not truly on point. Here, we are not presented with the failure of a trial court to require that a plaintiff post bond; rather, we are faced with plaintiffs failure to comply with the trial court’s order that bond be posted.

A slightly different procedural defect is presented in Mamula v. United Steelworkers of America, 409 Pa. 175, 185 A.2d 595 (1962). There the trial court entered a preliminary injunction effective immediately, postponing a union election scheduled nine and one-half hours later and requiring the posting of a bond within 48 hours. In vacating the injunction, our Supreme Court noted that the injunction was effective immediately without the protection of the bond, and that the filing of the bond could be delayed until after the election had been enjoined. Id., 409 Pa. at 177,185 A.2d at 597. Again, this is not directly on point because the order at issue here states that the injunction is not effective until the bond is posted.

Yet another factual scenario occurred in Rose Uniforms, supra. There the preliminary injunction issued without a bond being required. The order was subsequently amended to require the posting of a bond, and an appeal was taken. After the filing of the appeal, the plaintiff posted the bond required by the amended order. In vacating the injunction, our Supreme Court stated “we know when the bond was furnished and approved, but both events having occurred after the grant of the injunction and the appeal to this court therefrom, the furnishing of the bond did not correct the error of the court below.” Id., 408 Pa. at 425, 184 A.2d at 263. This, too, is not directly on point because the trial court erroneously entered an injunction effective immediately without the requirement of a bond. In the case sub judice, there was no error which the trial court corrected by amending the order.

Thus, we are faced with what appears to be a unique factual scenario in an area often visited by the courts of this Commonwealth. Of what effect is an order, purporting to be a preliminary injunction, which by its own terms does not become effective until the required bond is posted, when the plaintiff fails to post the required bond before an appeal is taken? We hold today that the policy expressed in the above-cited cases as well as in Pa.R.Civ.P. 1531(b) requires that such an order be vacated.

It must be remembered that a preliminary injunction is a most extraordinary form of relief which is to be granted only in the most compelling cases. Soja, supra, 361 Pa.Superior Ct. at 475, 522 A.2d at 1129. The requirement of a bond exists for the specific purpose of protecting a defendant by supplying a fund to pay damages if this relief is granted erroneously. Christo, supra, 308 Pa.Superior Ct. at 567, 454 A.2d at 1044. A unifying theme running throughout the cases cited above is concern that the defendant subject to the injunction has this protection. As noted above, this type of injunction, effective when the bond is posted but not specifying a date by which this must occur, places the defendant in a serious quandary. Uncertain as to when the plaintiff will post the bond and so make the self-executing order effective, a defendant must abide by the terms of the injunction without the protection of the bond or engage in the prohibited activities at the risk of a contempt citation.

Moreover, a defendant subject to such an order is caught between a procedural Scylla and Charybdis. An appeal must be filed within 30 days of the entry of the order appealed from. Pa.R.A.P. 903(a), 42 Pa.C.S.A. In civil cases, the date of the entry of an order is the date the docket is noted that notice of the order has been given to the parties. Pa.R.A.P. 108(b), 42 Pa.C.S.A. Were we to adopt the construction urged by Goodies, a plaintiff could wait thirty-one days to post the required bond. Thus, any timely appeal filed by the defendant would be quashed as interlocutory, and any appeal filed after the posting of the bond could be quashed as untimely. This would, in effect, create a species of preliminary injunction essentially unappealable to this Court. We decline to authorize this unwise practice. Therefore, we hold that the trial judge should automatically fix a time within which bond must be posted by the injunction-seeking plaintiff. If no bond is posted by the date set, the injunction will be automatically dissolved, and no appeal need be taken by the defendant.

We now apply the rule to the facts of this case. At argument, Goodies claimed that financial difficulties led to the failure to post a bond. The order granting the injunction was entered November 2, 1990. At no time in the intervening nine and one-half months has Goodies filed the bond. Goodies’ explanation of the failure actually provides weight to the Kuiros defendants’ argument. If Goodies is without the wherewithal to post the bond, they are unlikely to possess sufficient resources for any damages awarded if defendants comply with the order and the injunction is later determined to have issued in error. It is precisely this situation which the Rules mean to prevent by requiring the posting of a bond. Thus, we find that Goodies has not posted the bond according to the trial court’s order and vacate the order at issue. Accordingly, we need not engage in obiter dicta as to the other issues presented by the Kuiros defendants’ appeal.

Order vacated. Case remanded for further proceedings. Jurisdiction relinquished.

      . Sound policy reasons also argue against the position taken by Goodies. Were we to accept the argument that an order such as this is not appealable until the bond is posted, we would place the defendant subject to its terms in an untenable position. Plaintiff would be free to post the bond at any time, immediately bringing the injunction into effect. Thus, defendant is presented with the choice of risking a contempt citation for violating an injunction by engaging in the prohibited conduct, or abiding by the terms of the order without the protection of the bond which acts as security. The plaintiff could thus obtain the benefit of the preliminary injunction without posting a bond, a clear violation of the spirit of Pa.R.Civ.P. 1531(b). Such a course of conduct would also vitiate Pa.R.A.P. 311(a)(4) by creating a type of preliminary injunction which could not be reviewed by this Court. This we will not do.


author: TAMILIA, Judge:

text:
    597 A.2d 145
    Scott ROSENBERG, Appellant, v. James NICHOLSON.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Oct. 1, 1991.

      William P. Marshall, Philadelphia, for appellant.
    Norman R. Segal, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

This is an appeal from the December 13, 1990 Order of the trial court which granted appellee’s motion for summary judgment.

On February 2, 1989, appellant, Scott Rosenberg, instituted suit against appellee, James Nicholson, for damages due to injuries sustained by appellant in a March 2, 1987 motor vehicle accident. Appellant tried to servé appellee with notice of the lawsuit on February 9, 1989 but was unsuccessful because he gave the sheriff the incorrect street address for appellee’s residence, 132 Butler Pike instead of 932 Butler; Pike. Thereafter, appellant ascertained appellee’s correct address and, on March 31, 1989, again attempted to serve appellee. The sheriff returned service as not found because appellee moved and “now lives in the Germantown section of Philadelphia.” Uncertain as to appellee’s true mailing address, by letter dated May 25, 1989, appellant, through his counsel, requested the Ambler Postmaster to inform him of the most current mailing address of the appellee. While our examination of the record does not disclose the original, a photocopy appears to be timestamped from the post office with the notation, “good as addressed.” At the top of the letter to the Postmaster, counsel for appellant stated “Re: James Nicholson, 932 Butler Pike, Ambler, PA 19002.” Despite this knowledge, on July 14, 1989 and August 31, 1989, appellant twice reinstated his complaint and attempted to serve appellee at 132 Butler Pike. Both times appellant was unsuccessful.

Because appellee had not been served as of the October 10, 1989 arbitration date, the trial court dismissed appellant’s complaint without prejudice. On October 11,1989, by alleging appellee purposefully avoided service of process, appellant obtained an Order for alternative service. Service was allegedly perfected on December 5, 1989. However, no complaint had been refiled. On January 3, 1990, appellant filed his complaint. On February 20, 1990, appellee filed preliminary objections to this complaint. On April 20, 1990, the trial court granted appellee’s preliminary objections and dismissed appellant’s complaint with prejudice. The court reasoned because the February, 1989 complaint had been dismissed, no complaint existed on the docket when service was allegedly perfected on December 5, 1990. Thus the action was barred by the two-year statute of limitations which had run in March, 1989. However, on a petition for reconsideration, the court vacated the Order on April 24, 1990. Thereafter, appellee, by and through his attorney, filed a motion for summary judgment, raising the issues of lack of service and the statute of limitations. On December 13, 1990, the trial court granted appellee’s motion for summary judgment. In its March 7, 1991 Opinion, the court reasoned the appellant’s efforts to serve appellee with process stalled the suit, and thus the statute of limitations was not tolled by these repeated unsuccessful attempts at service. Therefore, when the court dismissed appellant’s complaint without prejudice on October 10, 1989, for failure to serve the appellee, the original action was treated as though it had never been brought at all. Since the January 3, 1990 complaint is treated as a new action, the statute of limitations had expired.

Appellant’s main argument is since appellee was not prejudiced and appellant attempted to serve appellee several times in good faith, the defect in the attempts at service, his unintentional use of the incorrect address, should not make the original suit a nullity. Additionally, appellant contends when appellee filed his answer to the January 3, 1990 complaint, he waived any purported defect in service and accepted the jurisdiction of the court. Finally, appellant contends the court erred by ignoring his request to answer appellee’s motion for summary judgment on the merits once the court found in appellee’s favor.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings and to give him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 551 A.2d 283 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 561 A.2d 1261 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellant contends his efforts to serve appellee with notice of the lawsuit were both in good faith and reasonable, and thus tolled the statute of limitations. Therefore, his negligence action was not time barred. In light of our discussion below, we find this argument to be without merit.

Service of process upon the defendant is designed to provide him with notice of the lawsuit. Notice is extremely important, as it is the constitutional touchstone for the power of the court to act. Hoeke v. Mercy Hospital of Pittsburgh, 254 Pa.Super. 520, 386 A.2d 71 (1978). In Williams Studio v. Nationwide Mutual Fire Ins. Co., 380 Pa.Super. 1, 9-10, 550 A.2d 1333, 1337 (1988), the court held “the statute of limitations is not tolled by the commencement of a suit subsequently dismissed without prejudice through a plaintiffs entry of a voluntary nonsuit” and, therefore, a plaintiff must file his second action prior to the running of the applicable statute of limitations. In Williams Studio, the court ruled appellee’s second action was time barred and stated “[i]f we held otherwise, the appellant, who endured the burden of litigating the initial suit over two years would again be subjected to the same litigation.” Id.

In Lamp v. Heyman, 469 Pa. 465, 477-78, 366 A.2d 882, 889 (1976), the Court held that a cause of action will remain effective only if the plaintiff “refrains from a course of conduct that serves to stall in its tracks the legal machinery that he has just set in motion.” This rule requires one to act in good faith and in a manner that will prevent delay. Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990). The Lamp Court reasoned as follows:

[W]e now conclude that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible____ Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.

Lamp, supra, 469 Pa. at 478-79, 366 A.2d at 889. There is no mechanical approach to apply to determine what constitutes a good faith effort to effectuate service, though the plaintiff has the burden of showing his efforts were reasonable. Leidich, supra.

In its Opinion, the trial court correctly set forth the principles of Williams Studio and Lamp. In applying Lamp to the facts of this case, the trial court stated as follows:

In the instant case, the plaintiff filed a complaint containing an incorrect address for the defendant. He, in effect, “stalled in its tracks the legal machinery he has just set in motion.” Lamp v. Heyman, Id., 469 Pa. at 478, 366 A.2d at 889.

(Slip Op., Doty, J., 3/7/91, p. 5.) From the facts on the record, it is reasonably possible for one to conclude appellant’s actions in inadvertently serving appellee at the incorrect address lacked reasonableness and good faith. By receiving appellee’s correct address from the post office and still attempting to serve appellee at the incorrect address, appellant’s behavior would appear to be inexcusable under the Lamp standard.

In support of its argument that its action was not barred by the statute of limitations or the Lamp doctrine, appellant relies on Robinson v. Trenton Dressed Poultry Company, 344 Pa.Super. 545, 496 A.2d 1240 (1985), and Leidich, supra. In Robinson, we held that a dismissal, without prejudice, imports the contemplation of further proceedings. Under such conditions, it is not necessary for the party to obtain the court’s permission to proceed. Id. Accordingly, appellant reasons the commencement of an action by praecipe is sufficient to toll the running of the statute of limitations, so long as he properly attempted to effectuate service.

We agree with appellee that appellant’s reliance on Robinson is misplaced because the case did not deal with any type of tolling effect that a dismissal without prejudice had upon the statute of limitations. The outcome of Robinson hinged on the issue of whether the plaintiff stalled the legal machinery he set in motion, not whether the statute of limitations had expired.

In Leidich, supra, plaintiffs service of process upon defendant initially was deficient in that it did not comply with the local rules. Specifically, the plaintiff attempted to serve process upon the defendant by first class mail instead of by delivering the writ to the sheriff through the prothonotary. After the passage of the two-year period of limitations, plaintiff sought and convinced the trial court to reissue the writ, which the sheriff served upon the defendant. The court held:

The [plaintiff] merely mistakenly used the improper mode of service and thus this case is not typical of the circumstance contemplated in Lamp. We, furthermore, detect no conduct wherein the [plaintiff] sought to stall the legal machinery it set in motion by filing its petition for review.
We find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit.

Id., 394 Pa.Superior Ct. at 309, 313, 575 A.2d at 917, 919. The court reasoned the defendant was not prejudiced because, though service was technically defective, the defendant had actual notice of the suit, had begun communications with and the submission of documents to their liability carrier and had started with the initial stages of discovery. Id. The present case is distinguishable from Leidich in that appellee did not receive actual notice of the lawsuit and, therefore, would have been prejudiced if appellant was allowed to commence the action after the statute of limitations had expired.

Appellant also maintains its efforts to serve appellee were not in bad faith. However, it is not necessary the plaintiff’s conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply. Watts v. Owens-Corning Fiberglas Corp., 353 Pa.Super. 267, 509 A.2d 1268 (1986), appeal denied, 514 Pa. 632, 522 A.2d 559 (1987). Simple neglect and mistake to fulfill the responsibility to see that requirements for service are carried out may be sufficient to bring the rule in Lamp to bear. Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983). Thus, conduct that is unintentional that works to delay the defendant’s notice of the action may constitute a lack of good faith on the part of the plaintiff. Id.

Next, appellant contends when appellee filed his answer to the complaint, he waived any claim of defective service and accepted the jurisdiction of the court. We disagree. Appellant cites two cases in support of its argument, Cinque v. Asare, 401 Pa.Super. 339, 585 A.2d 490 (1990), and O’Barto v. Glossers Stores, Inc., 228 Pa.Super. 201, 324 A.2d 474 (1974). In both of these cases, the courts held the defendants waived any defects in service of process by filing an answer to the complaint without filing timely preliminary objections to the manner of service. In O’Barto, the defendant’s actions, by answering the complaint, filing and serving written interrogations on the plaintiff and not filing preliminary objections until seven months after the plaintiff’s original complaint, clearly demonstrate active participation in the litigation of the lawsuit on the merits. In the present case, appellee initially filed timely preliminary objections to the manner of service of process and, therefore, Cinque and O’Barto do not apply. After appellant filed his complaint on January 3, 1990, appellee shortly thereafter filed a motion for summary judgment. By answering the complaint, appellee, was in effect covering his rights. In the event that his motion for summary judgment was denied, appellee needed to file an answer in a timely manner in order to preserve his right of contesting appellant’s claim.

Finally, appellant contends the trial court should have granted him leave to answer the motion for summary judgment on the merits. In its response to appellee’s motion for summary judgment, the appellant argued the appellee’s motion was extremely similar to earlier preliminary objections which were denied and, therefore, the motion for summary judgment should not have been considered. Although appellant, in its response, requested leave to answer the motion on the merits if the court did not agree with its theory, the court clearly did not abuse its discretion by ignoring this request. In support of the trial court’s determination on this issue, Rule 1035, Motion for Summary Judgment, provides in pertinent part:

(d) ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In light of the foregoing discussion, we affirm the court’s grant of summary judgment.

Order affirmed.


author: WIEAND, Judge: BECK, Judge,

text:
    597 A.2d 149
    Robert UGUCCIONI and Marilyn Kane, his wife, Appellees, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1991.
    Filed Oct. 8, 1991.

      Joseph J. Heston, Kingston, for appellant.
    John P. Lawler, Stroudsburg, for appellees.
    Before WIEAND, BECK and HUDOCK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a roadway in a private residential development is an “insured location” under a homeowner’s insurance policy issued by United States Fidelity and Guaranty Company (USF & G).

Robert Uguccioni and Marilyn Kane Uguccioni, husband and wife, are the owners of a residence in the Cobble Creek Estates, Tannersville, Monroe County. The property is insured under a homeowner’s policy issued by USF & G. On March 7, 1987, Michael A. Pirrung was fatally injured while operating a Honda ATC, an all-terrain vehicle owned by the Uguccionis, along a private roadway within the Cobble Creek development. The administrators of the Estate of Michael A. Pirrung, deceased, have commenced an action against the Uguccionis to recover damages arising from Pirrung’s death. When USF & G refused to defend the action on behalf of its insureds, this action for declaratory judgment was brought to determine the question of coverage. The facts were stipulated by the parties and presented to the trial court for decision. The trial court held that USF & G was required to defend the action brought against its insureds and indemnify them in the event they were found liable for the death of Michael Pirrung.

The policy contains an exclusion from personal liability coverage “arising out of the ownership, maintenance, use, loading or unloading of ... (2) a motor vehicle owned or operated by, or rented or loaned by any insured____” A motor vehicle is defined, inter alia, as a “motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location.” An “insured location” is defined, in pertinent part, as “the residence premises” and “any premises used by you in connection with the [residence premises].”

Cobble Creek Estates is a private residential development, and the streets therein are privately owned. These streets, it would seem, are private property used by the insureds in connection with their insured residence. As such, the street on which Pirrung had his fatal accident was an “insured location.”

USF & G argues, however, that a contrary result is mandated by the decision of the Superior Court in Federal Kemper Ins. Co. v. Derr, 386 Pa.Super. 382, 563 A.2d 118 (1989). We disagree. The decision is not on all-fours with the facts of the instant case. In the Federal Kemper Insurance case, the Superior Court affirmed the trial court’s finding that a ten acre Forest Preserve property, on which the insured had placed a camper, was not the insured’s residence property and had not been purchased within the policy period so as to qualify as an insured location. It followed, therefore, that a private easement leading to the Forest Preserve property was also not an insured location. Consequently, the court’s discussion regarding the insured’s lack of responsibility to maintain a roadway within a private development was dictum. It is of no controlling effect in determining the issue now before this Court. The issue before the Court in the instant case is not whether the insureds were responsible for maintenance of the road on which their guest was killed but whether the road was an “insured location” within the coverage provided by the policy.

The language used in the policy to define an “insured location” clearly is broad enough to include roads in a private development which are available for use in achieving access to the insured residence. Even if the language were to be deemed ambiguous, however, it would have to be construed in favor of the insured and against the insurer. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983); Aetna Casualty and Surety Co. v. Drake, 343 Pa.Super. 114, 116, 494 A.2d 381, 382 (1985); Eichelberger v. Warner, 290 Pa.Super. 269, 273, 434 A.2d 747, 749 (1981); Frisch v. State Farm Fire and Casualty Co., 218 Pa.Super. 211, 214, 275 A.2d 849, 851 (1971).

We hold, therefore, that the all-terrain vehicle being operated by Michael Pirrung was on an “insured location” at the time of his fatal accident; and, therefore, the trial court correctly determined that USF & G, which had issued the homeowner’s policy, was required to defend its insureds in the action brought against them to recover for Pirrung’s death.

Affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority’s conclusion that the roadway on which the decedent was killed is within the definition of an “insured location” found in appellees’ homeowner’s insurance policy issued by appellant. Therefore, I join in the majority’s holding that appellant does have the duty to defend appellees in an action by the decedent’s estate and to indemnify appellees for any damages awarded to the estate, within the policy limits.

I write separately to indicate my disagreement with one portion of the majority’s reasoning in support of this conclusion. The source of my difference with the majority is the crucial and yet often ignored distinction between dicta and alternative holdings entitled to precedential status.

The majority finds that we are not bound by the decision of a panel of this court in Federal Kemper Ins. Co. v. Derr, 386 Pa.Super. 382, 563 A.2d 118 (1989). The majority so finds, in part, because it construes certain portions of the Federal Kemper opinion as being dicta. I disagree. I construe Federal Kemper as an opinion containing alternative holdings, none of which can be disregarded as dicta. I nevertheless find that we are not bound by Federal Kemper in this case because the Federal Kemper court never directly opined on the precise issue presented to us here.

In Federal Kemper, the appellants owned a tract of land in a forest preserve. Appellants placed a camper on the land which they used as a weekend vacation retreat. They permitted a third party to operate a vehicle they owned on an access road running through the forest preserve and the third party hit a young woman while operating the vehicle. The young woman’s estate sued the appellants. Appellants’ homeowner’s insurer sought a declaratory judgment that any damages recovered against appellants would not be within the coverage of the policy because the accident did not occur on an “insured location” as defined by the policy. Id., 386 Pa.Superior Ct. at 385, 563 A.2d at 119-20. The Federal Kemper policy defined that phrase exactly as does the policy involved in the instant case. The definition, in pertinent part, is as follows:

4. a. the residence premises;
b. the part of any other premises, other structures, and grounds, used by you as a residence and which is shown in the Declarations or which is acquired by you during the policy period for your use as a residence;
c. any premises used by you in connection with the premises included in 4a or 4b;
e. vacant land owned by or rented to any insured other than farm land[.]

Appellants first argued that the access road was an insured location within section 4c. They contended that the road was premises “used in connection with” premises that fell within section 4b, i.e., premises used as a residence which had been acquired by appellants within the policy period. This court held that since the vacation property in question had not been acquired during the policy period, it was not within 4b and, therefore, clearly the road could not be considered to be property “used in connection with” any property that fell within 4b. On this ground, the court rejected appellants’ argument that the road was an insured location under section 4c.

The Federal Kemper court then stated “[wjhile our holding above is dispositive of this appeal, we will evaluate the other issues for the purpose of satisfying appellant that all matters were fully considered.” Id., 386 Pa.Superior Ct. at 388, 563 A.2d at 121. The court then went on to discuss and dismiss appellants’ argument that the road was an insured location under section 4e, concerning vacant land. In connection with this argument, the court stated that the road in question could not be considered to be premises “owned” by appellants, as section 4e requires, in part because the appellants were not responsible for maintenance of the road.

The majority in the instant case dismisses the Federal Kemper court’s discussion of section 4e, and its statements concerning the ownership of private roadways, as being dicta. I disagree. The Federal Kemper court’s discussion of this subject is not dicta — it is an alternative holding. In deciding the applicability of section 4e, the Federal Kemper court was deciding an issue that was directly raised by the parties on appeal. The fact that the court had already reached a conclusion on another issue does not render the second conclusion dicta. As our Supreme Court has stated, “[wjhere a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum.” Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 245, 186 A.2d 24, 26 (1962) (citing Manley v. Manley, 193 Pa.Super. 252, 164 A.2d 113 (1960)). Thus, both of the Federal Kemper court’s holdings are to be accorded precedential status.

As I have previously stated, however, I do not find the Federal Kemper case to be controlling on the issue presented here. As the majority aptly points out, the Federal Kemper court refused to find that the road involved there was an insured location within section 4c because it found that the vacation property to which the road led was not within either 4a or 4b of the policy. In contrast, this case involves a road leading to property that has been stipulated to be within section 4a since the property is the appellees’ residence. The Federal Kemper court’s discussion of the ownership of such a road and the responsibilities of property owners who use it, all of which formed a part of that court’s section 4e analysis, is not apposite to the issue posed here, which is exclusively based on section 4c.

Thus, as the majority concludes, the road in question here is clearly premises “used in connection with” the residence of appellees, is an insured location within section 4c, and appellant is obligated to provide coverage.

      . The appellants in Federal Kemper conceded that the vacation property was not within section 4a, since it was not their “residence premises."

      . In fact, despite this statement by the Kemper court, I do not view the first portion of that opinion as being "dispositive” of the entire appeal. Rather, the first portion disposed of only one of appellant’s arguments in favor of finding that the roadway was an insured location. The second portion of the opinion was devoted to another independent ground for finding that the roadway was an insured location. Thus, the second portion was necessary to a complete disposition of the appeal.