author: HOFFMAN, Judge: ROWLEY, Judge, VAN der VOORT, Judge,

text:
    465 A.2d 690
    COMMONWEALTH of Pennsylvania v. Anthony Dominick CIOTTI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1983.
    Filed Sept. 9, 1983.
    Petition for Allowance of Appeal Granted Dec. 20, 1983.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, BROSKY, ROWLEY, McEWEN, MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in refusing to instruct the jury to scrutinize carefully and accept cautiously the testimony of two Commonwealth witnesses as purported accomplices. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.

At approximately 7:30 p.m. on November 15, 1977, appellant telephoned Samuel Rossi and received permission to store something in the Rossi garage. Appellant and another man drove a brown van into the garage and told Rossi that the van contained bingo equipment. As the men were drinking coffee and watching television in the Rossi kitchen, appellant gave Rossi $200 and suggested that he “buy something for the kids.” Later that evening, Rossi became suspicious when he heard on the 11 o’clock news that a local record store had been robbed and the stolen merchandise had been loaded into a van similar to the one in his garage. He immediately went to the garage to inspect the van’s contents, but the van was locked and its cargo covered. He then drove to appellant’s hotel, where appellant confirmed that the van contained the stolen merchandise but promised to remove it the following morning. Rossi then went home and went to bed. Appellant telephoned Rossi the next morning, and upon arriving at the Rossi home, unloaded the records from the van to the garage floor and drove the van away. Rossi observed appellant and the stolen records and then left for work. During the day, Rossi called home and learned from his wife that appellant had returned to box the records, but had not yet removed them. After work, Rossi again went to appellant’s hotel and asked if he had removed the goods. Appellant assured Rossi that the contraband would be taken away, and drove him home. Several hours later, when appellant had still not arrived to reclaim the records, Rossi visited an attorney whom he had unsuccessfully attempted to reach during the day. Together, they consulted a criminal law specialist, who informed Rossi that he was involved and could be charged with a crime and advised him to report to the police. Rossi called home, learned that the records had been removed and proceeded to the police station to give a statement. Appellant was arrested and charged with receiving stolen property. At trial, Mr. and Mrs. Rossi linked appellant to the stolen records. The Commonwealth’s evidence failed to establish that appellant either owned the van or perpetrated the robbery. Appellant presented an alibi defense. At the close of testimony, appellant requested the lower court to instruct the jury that the Rossi’s testimony must be “scrutinized carefully and accepted with a high degree of caution” if the jury found them to be accomplices. The lower court denied the request and appellant was found guilty.

“It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so.” Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969) (citation omitted). Accord, Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980). The justification for the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency. Commonwealth v. Upsher, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980); Commonwealth v. Thomas, 479 Pa. 34, 37, 387 A.2d 820, 822 (1978); Commonwealth v. Russell, 477 Pa. 147, 153, 383 A.2d 866, 868 (1977). “An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference.” Commonwealth v. Upsher, supra 488 Pa. at 32, 410 A.2d at 812. “ ‘[W]hen the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.’ ” Commonwealth v. Sisak, supra 436 Pa. at 267, 259 A.2d at 431 (citations omitted).

In denying appellant’s requested instruction, the lower court reasoned that the jury could not infer that the Rossis were accomplices. We disagree. “The general rule for determining whether a witness is an accomplice is ‘whether or nor he could be indicted for the crime for which the accused is charged.’ ” Commonwealth v. Sisak, supra, 436 Pa. at 268, 259 A.2d at 431, quoting Commonwealth v. Hopkins, 165 Pa.Superior Ct. 561, 564, 69 A.2d 428, 430 (1949). “A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense he ... (ii) aids or agrees or attempts to aid such other person in planning or committing it ____” 18 Pa.C.S.A. § 306(c). Accord Commonwealth v. Thomas, supra 479 Pa. at 38, 387 A.2d at 822 (“have knowledge of, and participate in, the specific crime charged”). Appellant was charged with receiving stolen property, i.e., “intentionally receiving], retaining], or disposing] of movable property of another knowing that it has been stolen or believing that it had probably been stolen____” 18 Pa.C.S.A. § 3925(a). Less than five hours after accepting $200 from appellant for storing a van in his garage, Rossi was aware that the van had been used in the robbery and was filled with stolen merchandise. Rather than returning the money to appellant and immediately calling the police, Rossi contacted appellant and told him that the goods would have to be removed. Rossi then gave appellant the entire day to remove the contraband and, in fact, visited appellant after work, to ensure that the goods were gone. Upon learning that the goods still had not been removed, Rossi waited a few more hours before speaking with his attorneys. When they convinced Rossi that he was involved and could be charged even after appellant removed the goods, he decided to inform the police. We cannot agree with the lower court that a jury could not infer that Rossi intentionally aided appellant in the retaining and disposing of goods known to be stolen. Rossi knew the goods were stolen and yet did not contact thé police for over 20 hours, all the while hiding the goods in his garage. He never offered to return the money to appellant after realizing it was a payment for secreting stolen property, and in fact, kept the money until counsel advised him to relinquish it to the police. The jury could certainly have inferred that Rossi intended to keep the $200 for maintaining the van and records overnight, provided appellant removed them early in the morning, and that it was not until appellant delayed removing the property that Rossi decided to confess his own role. Thus, because the jury may reasonably have inferred that Rossi was an accomplice in the receipt and disposition of the stolen goods, the lower court erred in refusing to instruct the jury on the credibility of accomplice testimony. Accordingly, we must reverse the judgment of sentence and remand for a new trial.

So ordered.

ROWLEY and VAN der VOORT, JJ., file dissenting opinions.

ROWLEY, Judge,

dissenting:

I join in Judge Van der Voort’s dissenting opinion: I agree that Mr. and Mrs. Rossi could not “be indicted and punished for the crime with which [appellant] is charged.” Commonwealth v. Hopkins, 165 Pa.Super. 561, 69 A.2d 428 (1948). See Subcommittee Note to Pa. Suggested Standard Criminal Jury Instructions, § 4.02. There is no evidence, that the Rossis “solicited” appellant to commit, or “aided” appellant in planning or committing, the crime of theft by receiving stolen goods. Nor is there any evidence that the Rossis intended to promote or facilitate the commission of the crime with which appellant was charged and convicted. See Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972). At most, the Rossis could be convicted of hindering the apprehension or prosecution of appellant. 18 Pa.C.S.A. § 5105. The comment of the Joint State Government Commission to § 5105 states that the section “covers the accessory after the fact ... an accessory after the fact [is] one who, knowing that someone has committed a felony, receives, relieves, comforts or assists the felon or in any manner aids him to escape arrest or punishment.” This is more descriptive of the conduct of the Rossis, viewed in the worst possible light, than is the definition of an “accomplice.” Commonwealth v. McFadden, supra. Since I agree that the Rossis are not “accomplices,” as a matter of law, I agree that the trial court did not err in refusing to give the “accomplice” charge.

VAN der VOORT, Judge,

dissenting:

Again I dissent in this case involving Anthony Ciotti. I dissent because there is no evidence to indicate that the Commonwealth’s chief witnesses, Samuel and Andrea Rossi, might have been “accomplices” of appellant, and also because I feel that the defense waived any right to have an accomplice charge read to the jury.

The facts of this case are set forth in the majority’s opinion; however, some of the facts merit elaboration. Mr. Rossi testified that he did not realize how much money had been given to him by appellant “for the kids” the night of November 15, 1977, until he got undressed for bed after appellant left the Rossi residence. Although Mr. Rossi did not attempt to give the money back to appellant, he did turn it over to the police the following day. Although Mr. Rossi did not immediately contact the police the night of November 15, he did make two phone calls from work on November 16 to an attorney acquaintance, and stopped at the attorney’s house that evening after the attorney failed to return his phone calls. Mr. Rossi testified: “I was very scared. I didn’t know what to do. I had to ask somebody for advice. I had to talk to somebody, and I tried to call him [the attorney].” Mrs. Rossi similarly testified that she became afraid and didn’t know what to do when she realized that there was stolen property in her garage. Within twenty-four hours of discovering that their garage contained stolen property, and immediately after conferring with counsel, the Rossis notified the police and turned over to them the two hundred dollars.

A person may be found guilty of receiving stolen property if he “intentionally receives, retains, or disposes of movable property of another knowing . that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.” 18 Pa.C.S. § 3925(a). 18 Pa.C.S. § 306(c) defines “accomplice” as follows: “A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (2) his conduct is expressly declared by law to establish his complicity.” The only part of the definition of “accomplice” which might arguably apply to our situation is (1) (ii). I see absolutely nothing in the record in this case which could lead to any reasonable inference that Mr. and Mrs. Rossi had the intent of “promoting” or “facilitating” the reception, the retention, or the disposition of stolen property by appellant. There is simply no evidence sufficient to present a jury question with respect to whether the Rossis were accomplices.

In Commonwealth v. Thomas, 479 Pa. 34, 37-38, 387 A.2d 820, 822 (1978), our Supreme Court set forth the law on accomplice testimony:

The rationale behind instructing a jury that it should view the testimony of an accomplice with suspicion when the accomplice testifies for the prosecution, lies in the recognition that such a witness, out of a reasonable expectation of leniency, has an interest in inculpating others. For an accomplice charge to be required, the facts need not require the inference that the witness was in fact an accomplice, they need only permit such an inference. If the evidence is sufficient to present a jury question with respect to whether the prosecution’s witness was an accomplice, the defendant is entitled to an instruction as to the weight to be given to that witness’s testimony. (Citations omitted).

In the case before us, the police were totally unaware of any connection between the Rossis and the stolen records until the Rossis voluntarily came forward. I do not see how an inference might be drawn that these people who involved themselves by reporting a crime to the police had the intent to “promote” or “facilitate” the retention or disposition of stolen property. The case before us is totally unlike the situation in Thomas, wherein the witnesses were members of the same gang that the appellant belonged to, and were engaged in continuing criminal activities with the understanding that the fruits of any crimes would be shared by the gang members. I do not believe that the trial judge in the case before us erred in refusing to charge the jury on accomplice testimony. Considering the evidence which had been presented, such a charge could only have served to confuse the jury.

As noted previously, the rationale behind an accomplice charge is that an accomplice testifying for the prosecution has an interest beyond that of an ordinary witness, and this interest should be called to the jury’s attention so that the jury will hear the testimony with suspicion and .weigh it carefully for truthfulness. In the case before us, the following exchange took place at side-bar between the Commonwealth’s attorney, Mr. Palmisano, and appellant’s attorney, Mr. Scarpitti, after eight of appellant’s witnesses had testified and before appellant took the stand himself:

MR. SCARPITTI: Your Honor, Mr. Palmisano has graciously said that we can stipulate that Mr. and Mrs. Samuel Rossi have not been charged with anything arising out of this incident rather than having to call somebody to prove it. Would you announce that—
THE COURT: All right.
MR. SCARPITTI: —to the jury, your Honor, at this time?
THE COURT: All right.
MR. PALMISANO: There’s been no deal with them, you know. You understand. I think that—I think same token, there’s been no deal with them.
MR. SCARPITTI: I don’t know if there’s a deal or not, your Honor.
MR. PALMISANO: There is none.
THE COURT: Are you stipulating on that, too?
MR. SCARPITTI: I didn’t—I didn’t assume a deal. I could—
PALMISANO: They’ve never been charged and they’ve never—there was never any approach, never any conversation about being charged.
MR. SCARPITTI: I believe Mr. Palmisano. I don’t know what the police said to ’em, of course. That’s the problem. I never asked about a deal. I mean I know you never had any contact with them.
MR. PALMISANO: Never a deal. I never heard of anything in the case about it.
THE COURT: Kind of a funny thing to stipulate on.
MR. SCARPITTI: I don’t want to seem like I’m double-crossing you, and I would stipulate that Mr. Palmisano didn’t make a deal with them, but I don’t—I don’t know enough from the police officers to know—to be able to stipulate whether or not they did say anything to them in that respect.
MR. PALMISANO: I don’t know what relevancy it is that they have not been charged.
THE COURT: You could have asked them that when they were on the stand.
MR. SCARPITTI: I forgot, frankly, your Honor.
That’s why I wanted to stipulate it rather than having to call somebody to testify.
MR. PALMISANO: But I don’t want it to go in, you know, bare that they haven’t been charged because you could have somebody on the jury thinking there’s been a deal, which is in conjunction with his trying to discredit these people.
THE COURT: Call them back then.
MR. SCARPITTI: I’d be willing to stipulate, your Hon- or, that if Mr. and Mrs. Rossi had been asked, they would testify that they were not charged and that if they had been asked, they would testify that no deal was made.
MR. PALMISANO: Right.
THE COURT: All right.

It seems apparent from the above exchange that appellant’s attorney wanted the Commonwealth to stipulate that no charges had been brought against the Rossis, so that the defense could argue to the jury that a deal might have been made to obtain the Rossis’ testimony, thereby possibly discrediting the Rossis to some extent. When the Commonwealth’s attorney was not taken in by the ploy, but requested the additional stipulation that no deal had been arranged, the defense agreed to the stipulation “that if Mr. and/or Mrs. Rossi had been asked on either direct or cross examination, they would have answered that they had not been charged with any crime as a result of this incident; and furthermore, if asked, they would have answered that they had struck no deal with the police or with the district attorney.” The lower court was puzzled by the stipulation, doubtless because appellant’s defense had been that of alibi —that he had had no contact with the Rossis at the times in question—and because there had been no indication from the evidence presented that anyone might have contemplated bringing charges against the Rossis or that a “deal” of some sort might have been worked out to obtain their testimony. By offering to stipulate, the defense passed up the opportunity to place before the jury evidence (probably because the defense knew that there was none) that the Rossis might be testifying out of an expectation of leniency; yet the defense later requested an accomplice charge, which is based on the theory that an accomplice will testify for the prosecution out of an expectation of leniency. In addition to finding that the record does not permit an inference that the Rossis were accomplices, I would therefore also find that the defense waived any right to have the court give an accomplice charge when it declined the opportunity to question the witnesses concerning any deal that might have been made, and stipulated that the witnesses would have testified that there had been no deal made.

      . This case was remanded for a determination of appellant’s remaining contentions. See Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981), rev’g, 279 Pa.Superior Ct. 75, 420 A.2d 751 (1980). We granted en banc review.

      . The Commonwealth’s contention that the “accomplice charge” rationale is inapplicable because the Commonwealth had never discussed bringing charges against the Rossis is meritless. Rossi’s own testimony indicated that his attorneys convinced him that he was involved and could be prosecuted even after the records were removed. He further testified that it was with this "in mind” that he went to the police. (N.T. June 19, 1978 at 62-63, 110-11). The jury could infer from that testimony that Rossi went to the police on counsel’s advice "to inculpate others out of a reasonable expectation of leniency.” Commonwealth v. Upshur, supra. That Rossi was successful in avoiding prosecution in no way lessens the scrutiny his testimony requires.

      . The lower court also found that appellant was not entitled to the requested instruction because he never implicated the Rossis and his alibi defense was inconsistent with his assertion that they were accomplices. We disagree. The Rossis’ own testimony was sufficient to raise the inference that they were accomplices. Appellant’s alibi defense that the Rossis were accomplices of an undisclosed third party does not lessen that inference. Accordingly, the lower court erred in refusing to grant the charge.

      . Similarly, the jury could have inferred that Mrs. Rossi was an accomplice. Knowing that her husband had been paid |200 to hide stolen merchandise, she made no effort to contact police or return the stolen property. In fact, she stayed home with the records and even jammed the garage door so that it could not be opened.

      . Because of our disposition of this matter, we need not address appellant’s final contention. There was no discussion on record concerning the lower court’s refusal to charge on these points; however, the defense did take specific exception to the court’s refusal to read these four points to the jury.

      . The following points for charge relevant to accomplice testimony were presented in writing to the lower court, and were denied in chambers on record:
      12. Andrea Rossi and Samuel Rossi should be considered accomplices in this case.
      13. The testimony of an accomplice given at a Defendant’s trial must be carefully scrutinized and accepted with a high degree of caution because of the interest which the accomplice has in the case and because his testimony is from a corrupt source.
      14. A conviction based on the uncorroborated testimony of an accomplice or accomplices is looked on with disfavor by the law.
      15. An accomplice is one who is guilty of the crime charged, in this case, the crime of receiving stolen property and it is well known that when apprehended, accomplices are likely to attempt to cast the blame on others.

      . Since the Crimes Code was enacted after the decision of both Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969) and Commonwealth v. Hopkins, 165 Pa.Superior Ct. 561, 69 A.2d 428 (1949) (cited by the majority for the "general rule” on whether a witness is an "accomplice”), it would seem to be less confusing and more appropriate to use only the definition of "accomplice” given in the Crimes Code.

      . The lower court did charge the jury: "Ask yourself whether [the witnesses’] testimony is logical and reasonable; whether it’s plausible; whether there is any corroboration for their testimony. Ask yourself whether or not they have any interest in the outcome of this case. The Rossis certainly have an interest. The defendant has an interest.”

      . Although the majority opinion indicates, n. 3, that part of appellant's defense was that the Rossis were accomplices of an undisclosed third party, the notes of testimony of the trial indicate that this simply was never mentioned (unless, perhaps, it was mentioned in the untranscribed arguments to the jury).


source: Caselaw Access Project

author:
HOFFMAN, Judge:
      WIEAND, Judge,

license: Public Domain

text:
    465 A.2d 696
    Ruby JOYCE, Appellant, v. Lowell MANKHAM and Roland Forte and Orkin Exterminating Company.
    Superior Court of Pennsylvania.
    Argued April 5, 1983.
    Filed Sept. 9, 1983.

      Allen L. Feingold, Philadelphia, for appellant.
    Thaddeus J. Bartkowski, II, Philadelphia, for appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s granting appellee’s motion for summary judgment. We affirm the order, but in finding appellant’s contention waived, employ different reasoning than that relied upon by the lower court.

On May 10, 1979, while appellant checked under her car’s hood on the shoulder of Interstate 95, another car swerved onto the berm, striking appellant’s car and causing her serious personal injuries. In addition to a No-fault Insurance claim, appellant sued Lowell Mankham, a driver identified by eyewitness Roland Forte as the sole, cause of the accident. On November 16, 1981, more than two years after the accident, however, after Forte allegedly altered his account of the events at an arbitration hearing on appellant’s no-fault claim and blamed himself, appellant petitioned for and was granted leave to join Forte and appellee, his employer, as defendants. Appellee, answering the complaint, raised a statute of limitations defense in new matter. Appellant replied by denying the new matter. After appellee motioned for summary judgment, appellant responded by averring that appellee was estopped from raising the statute of limitations because Forte committed fraud by concealing his involvement until after the statute of limitations period had run. Appellee’s motion for summary judgment was granted, prompting this appeal.

Appellant contends that the lower court erred in refusing to find appellee estopped from claiming that the statute of limitations barred her action. Pa.R.Civ.P. 1030 provides

All affirmative defenses, including but not limited to the defenses of ... estoppel ... [and] fraud ... shall be pleaded in a responsive pleading under the heading “New Matter.”

Further, all defenses not raised in an answer or reply are deemed waived. Pa.R.Civ.P. 1032 (enumerated exceptions inapplicable). Here, in appellant’s reply, she denied appellee’s new matter but failed to raise in her own new matter the affirmative defenses. Because affirmative defenses must be part of the pleadings, Pa.R.Civ.P. 1030, appellant’s subsequent averment of estoppel and fraud in her answer to appellee’s request for summary judgment failed to preserve the issue.

Therefore, because appellant has not properly raised fraud, and her action was brought more than two years after the accident, her claim is barred by the statute of limitations. 42 Pa.C.S.A. § 5524. Accordingly, in the absence of disputed material issues of fact, we affirm the lower court’s granting of summary judgment.

Affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

On May 10, 1979, while Ruby Joyce was looking under the hood of her vehicle, which had been stopped on the shoulder of Interstate 95 in Philadelphia, she was struck and injured by a vehicle driven by Lowell Mankham. An action for personal injuries was commenced against Mankham in the Court of Common Pleas of Philadelphia County on March 19, 1981. On November 16, 1981, more than two years after the accident, Joyce filed, with leave of court, an amended complaint which added Roland Forte and his employer, Orkin Exterminating Company (Orkin), as defendants. The amended complaint contained averments that Forte, while driving a vehicle owned by Orkin, had forced Mankhám’s vehicle off the road and into Joyce’s vehicle. Orkin subsequently filed a motion for summary judgment on the grounds that an action against it was barred by the applicable two year statute of limitations. The court granted the motion and entered summary judgment in favor of Orkin. Joyce appealed.

I agree with the majority that the summary judgment was properly entered. I am unable to agree, however, that the result was required because Joyce failed to include “New Matter” in her reply to the defense of the statute of limitations which had been pleaded in Orkin’s answer. Because my reasons for affirming differ from those by which the majority reaches its conclusion, I write this concurring opinion.

Orkin’s answer to Joyce’s amended complaint contained the following affirmative defense under the heading “New Matter”:

1. This action is barred by the applicable statute of limitations, Orkin Exterminating Company, Inc., having been joined in this action more than two years after the cause of action asserted by the plaintiff arose.

Joyce’s reply to Orkin’s new matter contained the following averment:

1. Denied. Plaintiff received permission from the Court to join these defendants since their identity did not become known until quite some time after suit was instituted.

The purpose of new matter pleading is “ To compel a plaintiff to answer the defendant’s affirmative defenses during the pleading stage to avoid an unnecessary trial. If the plaintiff answers inadequately, a motion for judgment on the pleadings may be filed.’ ” Pisiechko v. Diaddorio, 230 Pa.Super. 295, 300, 326 A.2d 608, 610 (1974) quoting Chivers v. School District of Mt. Lebanon, 6 Pa.Cmwlth. 622, 625, 297 A.2d 187, 189 (1972). Accord: Witt v. Commonwealth, Department of Banking, 493 Pa. 77, 84 n. 8, 425 A.2d 374, 377 n. 8 (1981) (Opinion in Support of Remand); Ruhe v. Kroger Company, 425 Pa. 213, 216, 228 A.2d 750, 751 (1967); Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 4, 331 A.2d 912, 914 (1974); Louis v. Clark, 227 Pa.Super. 547, 550, 323 A.2d 298, 299 (1974); Goodrich-Am-ram 2d § 1030:5. In the instant case, Joyce’s reply contained a denial that the statute of limitations was a bar to her action and an averment that she did not learn of Forte’s and Orkin’s identity until “quite some time” after suit had been instituted. Had Orkin believed Joyce’s reply insufficient, a motion for judgment on the pleadings would have been appropriate. See and compare: Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982); Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971); Pa.R.C.P. 1034; Goodrich-Amram 2d § 1030:5 at 307. However, Orkin filed no motion for judgment on the pleadings. More specifically, Orkin has never contended that Joyce’s reply was inadequate because it failed to contain “new matter.”

When the majority nevertheless holds Joyce’s reply inadequate because she failed To include “new matter” constituting a defense to the statute of limitations, it misinterprets applicable rules of pleading. Pennsylvania Rule of Civil Procedure 1017(a) provides that the pleadings in an action are limited to: “a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counterreply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” (Emphasis supplied.) See also: Balush v. Borough of Norristown, 292 Pa.Super. 416, 419, 437 A.2d 453, 454 (1981); 2 Goodrich-Amram 2d § 1041:4. There is no provision for, nor is it permissible to file a reply containing new matter in response to an answer containing new matter. A reply containing new matter may be filed only in response to an answer asserting a counterclaim. See: Goodrich-Amram 2d § 1030:4 at 305 n. 10 and cases cited therein. “The reply corresponds to an answer and should be treated accordingly. It cannot, of course, contain either new matter or a counterclaim and it closes the pleadings on the issue initiated by the complaint.” Goodrich-Amram 2d § 1030:4 at 305-306 (footnote omitted) (emphasis supplied).

The summary judgment entered by the trial court in this matter was proper, not because Joyce failed to include “new matter” in her reply, but because the entire record disclosed beyond peradventure that her claim against Orkin was barred by the two year statute of limitations.

A motion for summary judgment is provided for by Pa.R.C.P. 1035. Such a motion must be decided according to the pleadings, depositions, answers to interrogatories, admissions on file, and supporting and opposing affidavits. The principles pertaining to motions for summary judgment were restated in Wilk, Admr. v. Haus, 313 Pa.Super. 479, 481, 460 A.2d 288, 289 (1983), where a panel of this Court quoted from Schacter v. Albert, 212 Pa.Super. 58, 61-62, 239 A.2d 841, 843 (1968), in part as follows:

“On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record____ One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact.... The Court must consider both the record actually presented and the record potentially possible at the time of trial____” The court is to accept as true all well pleaded facts in the plaintiffs pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom____ The record must be examined in the light most favorable to the non-moving party____ In passing upon a motion for summary judgment “it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.”

When a motion for summary judgment has been made and properly supported, “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 [the] 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.” Pa.R.C.P. 1035(d). See also: Tom Morello Construction Co., Inc. v. Bridgeport Federal Savings & Loan Assn., 280 Pa.Super. 329, 421 A.2d 747 (1980).

In the instant appeal, it is argued that Roland Forte, the employee of Orkin, was guilty of fraud because he concealed his conduct in forcing Mankham off the road. This argument cannot prevail. In the first place, the only suggestion of fraud comes from Joyce’s counsel. There is neither pleading, deposition, answer to interrogatory, admission or affidavit in this record to support the argument that a fraudulent concealment of the facts was perpetrated upon Joyce. The “memorandum of law” filed by counsel in the trial court was not a document to be considered by the trial court in deciding the motion for summary judgment. Toth v. Philadelphia, 213 Pa.Super. 282, 286, 247 A.2d 629, 631 (1968). On appeal, counsel’s memorandum has no greater effect than an argument presented, without record support, in the appellate brief. Similarly, an averment of fraud cannot be raised for the first time in an unverified answer to a motion for summary judgment. A motion for summary judgment requires no answer. Opposing affidavits, however, may be submitted. Pa.R.C.P. 1035(d). Here, no opposing affidavits were submitted.

Moreover, Forte’s concealment of his involvement in the accident, even if concealment were present, would not estop Orkin, the employer, from asserting the bar of the statute of limitations unless Orkin participated in some way in the concealment. A person is not responsible legally for fraudulent misrepresentation unless he made the misrepresentation himself or authorized another to make it for him or in some other way participated therein. See: Snell v. Commonwealth, State Examining Board, 490 Pa. 277, 280, 416 A.2d 468, 469 (1980). See also: McNair v. Weikers, 300 Pa.Super. 379, 392, 446 A.2d 905, 911-912 (1982). Appellant has neither suggested in argument nor averred under oath that Orkin authorized or participated in the concealment which she seeks to attribute to Forte. Cf. DeRugeriis v. Brener, 237 Pa.Super. 177, 348 A.2d 139 (1975), appeal dismissed, 471 Pa. 103, 369 A.2d 1215 (1977).

Finally, the conduct of Roland Forte upon which appellant relies was not the type of fraud which compels a tolling of the statute of limitations. “Under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period____ Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute____ If, however, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the limitation of the action.” Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963) (emphasis added) (citations omitted). See also: Fidelibus v. State Automobile Insurance Association, 315 Pa.Super. 338, 342, 461 A.2d 1309, 1311 (1983); Platts v. Government Employees Insurance Company, 301 Pa.Super. 379, 382, 447 A.2d 1017, 1018 (1982).

In the instant case, appellant knew that she had been struck by Mankham’s vehicle and was aware of Forte’s presence at or near the scene of the accident. She knew Forte had been a witness to the accident and her counsel had Forte’s written statement concerning the same. The fact that Forte denied involvement in the accident or failed to disclose facts which would have enabled appellant to prove his causal connection therewith was not such fraud or concealment as would justify appellant in relaxing her vigilance or deviating from her right of inquiry. To hold otherwise would be to nullify the statute of limitations against any person who denies liability and permit an action against such person whenever evidence to support liability is subsequently obtained, no matter how long after the accident. Here, it is apparent that Forte was not the only source of information regarding the occurrence of the accident. Appellant’s failure to discover facts enabling her to state a cause of action against Forte’s employer must be attributed to a lack of diligence and not to conduct by Forte or Orkin which could reasonably cause appellant to discontinue or relax her obligation to make inquiry.

For the foregoing reasons, I concur that the judgment entered in favor of Orkin should be affirmed.

      . Pa.R.Civ.P. 1017(a) provides, "The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counterreply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.”

      . This case may be distinguished from Straup v. Times Herald, 283 Pa.Superior Ct. 58, 423 A.2d 713 (1980), where the plaintiffs raised the doctrine of equitable estoppel as "the affirmative basis of their request for injunctive relief" rather than as a defense. Id., 283 Pa.Superior Ct. at 69, 423 A.2d at 719. Here, appellant raised estoppel and fraud specifically to defend against appellee's statute of limitations argument.
      We acknowledge a conflict between Pa.R.Civ.P. 1030 and GoodrichAmram 2d § 1030:4 and the lower court cases relied upon therein. Regardless of nomenclature, however, whether an affirmative defense is raised in new matter or an amendment, see Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), the purpose supporting rule 1030’s requirement, that all issues be framed prior to trial, must prevail over any concern that new matter is an inappropriate section in a reply.

      . The record fails to disclose the entry of an appearance on behalf of Roland Forte or any activity in the claim against him.


author: PER CURIAM:

text:
    465 A.2d 700
    Christine LUCIA v. George LUCIA, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1983.
    Filed Sept. 9, 1983.

      Todd J. O’Malley, Scranton, for appellant.
    No appearance entered nor briefs filed on behalf of appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   PER CURIAM:

George Lucia filed this appeal from an order of the trial court which excluded him from his home for one year pursuant to the Protection from Abuse Act of October 7, 1976, P.L.1090, No. 218, as amended, 35 P.S. § 10181 et seq. He contends that the evidence was insufficient to warrant an order excluding him from the marital home. Although the issue sought to be raised is deserving of review, we are unable to reach the merits of Lucia’s appeal because he failed to file exceptions to the trial court’s order as required by Pa.R.C.P. 1905.

“Section 10189 of the Act in question provides that any proceeding thereunder shall be in accordance with the Rules of Civil Procedure. In addition, Rule 1905, Pa.R.Civ.P., which was promulgated to implement the Act, provides: ‘The decision of the court and the time for exceptions thereto shall be governed by Rule 1038(b) to (e) inclusive.’ Rule 1038(d), Pa.R.Civ.P., in turn, requires the filing of exceptions to the decision of the lower court.

“The record in this instance reveals that Appellant failed to file exceptions. Such failure requires us to affirm the decision of the lower court inasmuch as Appellant has waived all issues not raised in exceptions.” Knisely v. Knisely, 295 Pa.Super. 240, 241-242, 441 A.2d 438, 439 (1982) (footnote omitted). See also: Horvat v. Horvat, 303 Pa.Super. 406, 449 A.2d 751 (1982).

Order affirmed.


author: McEWEN, Judge: JOHNSON, Judge,

text:
    465 A.2d 1001
    COMMONWEALTH of Pennsylvania, Appellant, v. Keith R. BOWSER.
    Superior Court of Pennsylvania.
    Submitted May 19, 1982.
    Filed July 22, 1983.
    Reargument Denied Oct. 14, 1983.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Michael Kelly, Pittsburgh, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   McEWEN, Judge:

We here review an appeal of the Commonwealth from an order of the Common Pleas Court of Allegheny County which dismissed certain charges against appellee by reason of the determination of the trial court that the trial of appellee had not commenced in accordance with the mandate of Rule 1100. We reverse.

The proceeding in which this appeal has been taken bears the caption of Allegheny County Criminal Action No. CC 7907254A, for which the factual chronology is as follows:

January 15, 1979 Appellant allegedly obtained from Joseph and Joan Harsch, as a result of a conspiracy with Cora Bowser, the sum of $12,000 which he diverted to his own use.

February 15, 1979 Appellant allegedly obtained from Joseph and Joan Harsch, as a result of a conspiracy with Cora Bowser, the sum of $3,000 which he diverted to his own use.

April 23, 1979 Appellant is charged by the City of Pittsburgh Police Department with theft of service from the Hyatt House Hotel and conspiracy with Cora Bowser to commit such theft.

The Pittsburgh Police Department commences on that same date an unsuccessful search for appellant and his accomplice upon the Hyatt House charges.

May 13, 1979 The Pittsburgh Police Department requests the police department of Phoenix, Arizona, to search for appellant.

June 8, 1979 The office of the Sheriff of Maricopa County, Arizona, reports it is unable to locate appellant.

June 13, 1979 Pittsburgh City Police Department Detective G. Diulus testifies before District Justice W. Little that appellant cannot be found.

November 9, 1979 Appellant is returned in custody to Pennsylvania after his apprehension in Phoenix, Arizona, in late October.

November 14, 1979 The instant criminal complaint charging the theft of $12,000 by deception, the theft of $3,000 by deception and conspiracy to commit such theft is executed and lodged against appellant.

January 22, 1980 District Attorney of Allegheny County files an Information charging the specific offenses of theft by failure to make required disposition of the $12,000, theft by failure to make required disposition of the $3,000 and conspiracy to commit such theft.

April 3, 1980 The appellant makes Application to dismiss certain of the counts pursuant to Rule 1100. The court orders that the hearing upon the Application to dismiss be held at the time of the scheduled trial date of April 8, 1981.

April 8, 1980 The trial judge conducted a hearing upon the Application for dismissal pursuant to Rule 1100 and directs that (1) the count charging theft by failure to make disposition of $12,000 be dismissed and (2) the count of conspiracy to commit such theft be amended so as to eliminate reference to the theft of the $12,000.

The foregoing chronology omits but one factor. It seems that the victims of this criminal behavior, Joseph and Joan Harsch, had proceeded on April 25, 1979, to sign a Private Criminal Complaint which, although approved in advance by the Assistant District Attorney pursuant to the Rules of Criminal Procedure, was presented to and signed by a District Justice as a Private Complaint, without the benefit of police attention to the alleged criminal activity either prior or subsequent to the filing of the complaint. Nor does it appear in the record that the District Justice as issuing authority issued a summons or warrant of arrest for service by a constable; in fact, Pittsburgh City Detective Diulus testified that his search for appellant through the weeks preceding June 13, 1979, included inquiries to various agencies, including the National Crime Information Center, all of which produced the response that no warrants for appellant were outstanding. It would appear from the record that there was absolutely no further action toward processing this Private Criminal Complaint, once it was signed by the private complainant on April 25, 1979, until after appellant was apprehended and returned to the Commonwealth. At that point, on November 14, 1979, the private complainant, Joseph Harsch, signed a formal statement of withdrawal upon the face of the Private Complaint before proceeding on that same date to execute a Police Criminal Complaint charging the three offenses which are the subject of scrutiny in this appeal.

Appellee urges that the 180 day period within which the Commonwealth was required to commence the trial began on April 25, 1979, at least insofar as concerns the charge expressed in the Private Complaint filed on that date. The hearing judge concluded that the Commonwealth had not shown any evidence that the Private Complaint of April 25, 1979, triggered any effort of any type to locate or arrest appellant on that specific charge since all police efforts to locate appellant were inspired by the Hyatt House charges. The court concluded that, therefore, the Commonwealth failed to show such “due diligence” or such “unavailability of the accused”, with respect to the Private Complaint, that would entitle the Commonwealth to exclusion of any period after the date of the Private Complaint. As a result of the finding that the Commonwealth was not entitled to any exclusion, the court determined that the 180 day period, within which the Commonwealth was required to commence the trial of appellant upon the charge specified in their Private Complaint, expired on October 23, 1979.

We note that the opinion of the distinguished Judge Henry R. Smith, Jr. is a very persuasive expression of a quite valid rationale for the conclusion he reached, especially in view of the fact that he did not have at the time of his decision the benefit of the subsequent thoughts expressed upon this issue by the Pennsylvania Supreme Court in 1981. The Court during that year declared in Commonwealth v. Genovese, 493 Pa. 65, 69-72, 425 A.2d 367, 369-71 (1981):

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980).
******
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

The Court further stated in Commonwealth v. Polsky, 493 Pa. 402, 407-08, 426 A.2d 610, 613 (1981):

Common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal under Rule 1100 when he voluntarily absents himself from this jurisdiction, refuses to return, and due diligence by law enforcement authorities fail to secure his return.

Appellee asserts, of course, that he was not accorded the prompt trial required by Rule 1100(a)(2) which provides:

(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

It is clear that a condition precedent to the application of the rule and the 180 day countdown is that “the complaint [be] filed”. Our study of the record reflects that this condition precedent was not met for the following reason:

Pennsylvania Rule of Criminal Procedure 134 indicates that a magistrate must determine, after review, that the complaint is in satisfactory form and, if so, must:
(1) sign the complaint;
(2) issue a summons or warrant of arrest as the case may be.
While the district justice as issuing authority accepted the complaint for filing and signed it, he did not proceed to completion of the filing process since he apparently failed to issue a summons or warrant of arrest.

We conclude, therefore, that since the complaint was not filed, the form of complaint signed by the private complainant was a nullity. As a result, the subsequent complaint actually signed, filed and processed on November 14, 1979, is not overshadowed by Rule 1100 considerations.

Our holding does not conflict with the thoughtful opinion of our distinguished colleague, Judge Edmund B. Spaeth, in Commonwealth v. Kellie, 275 Pa.Super. 106, 418 A.2d 634 (1980), nor with the notions expressed in his concurring opinion in Commonwealth v. James, 258 Pa.Super. 157, 392 A.2d 732 (1978). The Kellie decision adopted the concurring thought of James in holding that the 180 day countdown commences when the issuing authority signs the complaint and not when process issues. It must be emphasized, however, that the factual situation of- both Kellie and James included the fact that the issuing authority not only signed the complaint but also provided for the issuance of process, while we here review a case where process never issued. We further hasten to note that the role of the Kellie court was to select which of the two dates—(1) the date that the private prosecutor signed the complaint or (2) the date that the issuing authority signed the complaint— triggered the countdown. Therefore, the issue we decide was not before the Kellie court. The Kellie rationale relies in large measure upon the Pennsylvania Supreme Court decision in Commonwealth v. Mitchell, 472 Pa. 553, 559, 561, 372 A.2d 826, 829-30 (1977), in which our highest Court opined:

[I] t is clear that Rule 1100 contemplates the commencement of the running of the mandatory period at the point criminal proceedings are initiated.
* * sf! •}: * *
In the situation of an arrest pursuant to a warrant, the complaint is filed prior to arrest, and thus considerations such as disruption of employment, curtailment of associations, subjection to public obloquy, and creation of anxiety are brought to bear prior to arrest, (citations omitted).

It must be underscored that the Mitchell court also reviewed a situation where there had been issuance of process and it should be noted that the consequences that there so greatly concerned the Supreme Court could not have awaited appellee in this case since process never issued.

We hold, therefore, that the issuance of process is a condition antecedent to completion of the- filing of a complaint.

There may well be further reasons why the mandate of Rule 1100 does not in this case require dismissal of the charges that had been the subject of the earlier complaint of April 25, 1979. It seems of some significance that the earlier complaint was a Private Complaint and not a Police Complaint. As a result, through happenstance, it did not become a matter of police attention and purview. Therefore, it might be argued that it should not be subjected to the same strict, narrow interpretations of Rule 1100 that are needed to regulate and balance the vast forces the Commonwealth is able to marshall against an individual accused. Since the reflection of this case more closely resembles a one-on-one situation and since appellant had already been a fugitive for two days prior to the time that the Private Complaint was filed on April 25, 1979, it might well be asserted that, even if the complaint had been validly filed, the 180 day countdown should not even have begun. There is the further contention that the de facto unavailability of appellee which was proven at the Rule 1100 hearing should preclude consideration of the assertion by appellee that the search conducted for him was not conducted as a result of these charges and he was not, therefore, de jure unavailable. However, our holding that the complaint of April 25, 1979 was not filed, makes unnecessary any discussion or disposition of these contentions.

Order of dismissal reversed. Case remanded for proceedings consistent with this holding. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I must respectfully dissent to the majority’s holding that the issuance of process is an “antecedent condition” to the filing of a criminal complaint.

In Commonwealth v. Kellie, 275 Pa.Super. 106, 418 A.2d 634 (1980) this court held that a private complaint was not deemed filed until an assistant district attorney had approved it and the district justice had signed it. Until that point, a summons or warrant could not be issued subjecting the defendant to the disruptions caused by a criminal proceeding. Rule 1100 did not start to run until that point. The court relied in part, on Judge Spaeth’s concurring opinion in Commonwealth v. James, 258 Pa.Super. 157, 392 A.2d 732 (1978). That concurring opinion argued that actual issuance of process was not the triggering event for Rule 1100 purposes as criminal proceedings commenced when process could potentially issue at the time the district justice approved the complaint.

The Supreme Court in Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), in distinguishing a situation where a complaint follows an arrest from one where a complaint precedes the arrest stated that where a complaint is presented and process issues the criminal proceedings are commenced with the presentation of the complaint. In reaching such position the court found the complaint was filed with the presentation to the district justice and Rule 1100 runs from that point.

Commonwealth v. Silver, 238 Pa.Super. 221, 357 A.2d 612 (1976), resolved the issue of whether criminal proceedings commenced with the presentment of an investigating grand jury. In resolving such issue, the court compared its factual situation to the case where a criminal complaint was filed. It was noted that a complaint followed by a summons or warrant immersed a defendant in the criminal justice system. The court reasoned that once the complaint was filed, the prosecutorial forces would be quickly brought to bear by means of a summons or warrant. The conclusion reached was that the presentation of the investigating grand jury did not start the 180 day period because the subject of the presentment was not yet subject to summons or arrest.

The majority attempts to distinguish the above cases by distinguishing the factual settings of those cases. The issue resolved in Kellie, supra was whether a private complaint was filed when the complainant signed it or after the attorney for the Commonwealth approved it and the issuing authority accepted it. Kellie, James, supra, as well as Mitchell, supra, involved situations where process had issued close in time with the district justice’s acceptance of the complaint. Mitchell, involved a police complaint. The majority therefore finds such cases are not controlling as the present issue was not properly before those courts.

While I cannot fault the majority’s factual distinctions, I must respectfully disagree that such differences are determinative or persuasive in resolving the issue at hand. The majority correctly notes that the purpose behind the speedy trial rule is to protect the accused from both the direct and indirect ramifications of standing accused of a criminal deed. From the filing of the complaint the Commonwealth has 180 days (barring excludable time, waiver, or extension of time) to proceed to trial. According to the majority, no such protection should be afforded an individual who stands accused but has not been directed to appear; no protection is necessary until the issuing authority places his signature on a summons or arrest warrant. I find such reasoning to be flawed.

An accused does not actually feel the pressures of the prosecution until he or she is actually summoned or arrested. The signing of the summons or warrant can no more disturb the tranquility of an unexpecting defendant than the acceptance of the complaint. Yet the courts of this Commonwealth have universally held that where a complaint precedes arrest, Rule 1100 commences from the date of the complaint. See Mitchell, supra. Therefore I believe the 180 day period runs from the district justice’s acceptance of the complaint, not the issuance of process.

The majority opinion carefully attempts to avoid creating any notable differences between the application of Rule 1100 to private complaints and police complaints. However, lest dictum in the majority’s opinion be misunderstood, I wish to express my opinion on any such difference. Rule 134, Pa.R.Crim.P., describes the role of the issuing authority “[i]n any proceeding initiated by complaint” (emphasis supplied). After reviewing the complaint, the district justice shall endorse the complaint and issue a summons or warrant. In both the case of a private complaint and police complaint the defendant may not be served with a summons or warrant until the district justice issues such. The practical difference, mentioned by the majority, that in the situation of a police complaint the authorities are aware of the alleged criminal activity and will take the appropriate action is of no weight. In either case the district justice must mail out the summons, or in the case of an arrest warrant, direct it to the police or a constable.

The majority proffers possible views on whether the Commonwealth had exercised due diligence as to the first complaint. However, having found the first complaint was a nullity, the lead opinion need not determine whether due diligence had been exerted as to the first complaint. As I believe that Rule 1100 should run from the first complaint, it must also be determined whether the Commonwealth may rely upon its claim of due diligence, in an unrelated case, for a concurrent time period, to demonstrate appellee’s unavailability in the case at hand.

Where the Commonwealth is aware of a defendant’s incarceration in another jurisdiction, the Commonwealth may not assume the defendant is unavailable unless it has exerted a reasonable effort to secure his or her appearance. Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982); and Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978). While any comparison between the current situation and one where the suspect is known to be incarcerated is attenuated, the latter situation demonstrates that the Commonwealth may not presume a defendant’s unavailability.

In a similar light, where a suspect is unavailable for trial on unrelated charges, the prosecution cannot successfully claim such a delay resulted in a delay in the proceedings at issue. Only where an absence causes a delay in the proceedings of the case in question can the period of delay be excluded pursuant to Rule 1100(d). Commonwealth v. Haynes, 245 Pa.Super. 17, 369 A.2d 271 (1976); Commonwealth v. Lewis, 237 Pa.Super. 357, 352 A.2d 99 (1975). See also Commonwealth v. Bundridge, 268 Pa.Super. 1, 14 n. 13, 407 A.2d 406, 413 n. 13 (1979) (dissenting opinion by Hoffman, J.). Under the facts of this case, I do not find that appellant’s absence, as to the other charges, delayed the proceedings in this case as no effort was made to issue process on him.

In several other situations the Commonwealth has been likewise denied the benefit of a fortuitous turn of events. In Commonwealth v. Vaughan, 475 Pa. 227, 380 A.2d 326 (1977), the fact that a defendant was to be tried on other charges during a certain term of court, did not excuse the prosecution from trying him for the whole term, but only those days actually spent at trial. Nor could the mere fact that the defense attorney would have been unable to try the case had it been called to trial toll the period for trial unless the case was actually listed for trial. Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977). While in Commonwealth v. Hilliard, 278 Pa.Super. 221, 420 A.2d 510 (1980), the Commonwealth was not allowed to rely on an earlier petition, certifying that a preliminary hearing could not be held because the defendant’s whereabouts were unknown, to later satisfy it duty to exercise due diligence in locating the defendant.

In the light of the above cases, I would hold that the Commonwealth may not rely on the efforts of one police department, in an unrelated case, during a concurrent period, to supply due diligence in a second case where in the second case no effort is made to locate the defendant and the second enforcement agency has no knowledge of the first’s efforts.

I would affirm the order of the trial court directing that appellant be discharged. Therefore I respectfully dissent.

      . We here refer to Rule 134 as it existed on April 25, 1979, the date pertinent to our consideration. The subsequent amendment of October 22, 1981, effective January 1, 1982, expressed as § 134(b)(1) the previously implicit requirement that the issuing authority "accept the complaint for filing". While that amendment does not affect our review or discussion, it is consistent with the rationale of this opinion.

      . It must be noted that the issue in James was whether the trigger date was (1) the date the District Magistrate signed the complaint or (2) the date the district attorney provided subsequent approval. Therefore, the issue we decide was not before the James Court.

      . James was decided before a seven judge court; one judge joined in the concurring opinion. The majority did not address the rule 1100 claim.

      . The attempt to withdraw the original complaint was not made until after the original 180 day period had expired. I believe such an attempt was not only untimely but also would have been ineffective even had it been made earlier. See Commonwealth v. Sires, 284 Pa.Super. 50, 424 A.2d 1386 (1980).

      . This issue is the crux of the Commonwealth’s appeal.

      . The complainant testified that he did not know appellee’s whereabouts, though he knew appellee "had left town." (N.T. pp. 14, 16).

      . The Commonwealth contends any efforts by the second police agency would have been useless. While such may be true in a particular case, it is just as probable that a joint effort or a second effort may provide additional information leading to the defendant’s apprehension.


author: HESTER, Judge:

text:
    465 A.2d 1007
    Richard GROSSMAN, Appellant, v. COMMISSIONER OF POLICE.
    Superior Court of Pennsylvania.
    Argued March 24, 1983.
    Filed July 29, 1983.
    Reargument Denied Oct. 7, 1983.

      Jacob S. Richman, Philadelphia, for appellant.
    Douglas B. Fox, Assistant District Attorney, Philadelphia, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from the Order of March 7, 1980, denying appellant’s Petition for Reconsideration of Application for Return of Money.

The facts of the case are as follows:

On August 7, 1978, the Narcotics Unit of the Philadelphia Police Department, pursuant to a search warrant, searched the residence of Rochelle Spector, appellant’s girlfriend, at 384 Tomlinson Place, Philadelphia, Pennsylvania. Appellant was present with Rochelle Spector during the search and both were arrested and charged with various violations of the drug laws. Among the items seized by the police were $111,450.00 in cash, seven (7) pounds of marijuana and thirty-four (34) slips of paper containing writings and numerals.

Appellant was found not guilty of the various drug charges. He then petitioned the lower court for the return of the $111,450.00.

On March 21, 1979, a hearing was held regarding appellant’s application. The testimony was as follows:

Sergeant Thomas Valenti testified that he had been assigned to the Narcotics Unit of the Philadelphia Police Department since October 28, 1970. He received formal training in drug trafficking and had conducted or supervised numerous investigations into marijuana trafficking. After reviewing the slips from this case, he testified, “These are the records, these are the records, from my experience, of someone doing multi-bundles (one bundle-25 pounds)”. Valenti stated that he has seen such records kept in many drug cases. At the top of many of the slips was the word “Red” which referred to a type of marijuana. There were indications on the slips as to the amounts of money which had been paid. Many of the slips had names and numbers associated with them, such as “Ed; Jeff, 1 at 4-10, Mik, 2, 4-25.” There was a line through the “4-25” and the notation “paid”. There were notations such as “Jeff—1.410 paid, PR would be $105.00.” The records were kept in such detail as to reflect small amounts (quarter ounces) for the appellant’s personal use.

Sergeant Valenti testified that he had never found anyone who possessed seven (7) pounds of marijuana for personal use. He estimated that the street value of 591 pounds of marijuana (the value of sale indicated on the slips) sold in ounce quantities, was $472,000.00, and if that amount were sold in pound quantities, it would yield approximately $236,-000.00. He also stated that if one purchased 591 pounds of baled marijuana, the cost would be $118,000.00.

Bernard Hall, an investigative accountant who had been employed by the Internal Revenue Service for approximately twenty-five (25) years, stated that he analyzed the slips. It was his opinion that they were records of a marijuana sales operation. His analysis, made from an examination of the slips, as well as a reconstruction of the slips missing from sequence, indicated sales of approximately 3,125 pounds of marijuana at a selling price of $1,210,938.00. The slips contained figures such as “5 at 400” or “5 at 380”. These indicated the quantity of marijuana sold and the selling price. Also, Hall stated the figures on the slips were obviously a running account of the balance owed on a particular sale by the person to whom the marijuana was sold on credit. However, the records were not complete and the 3,125 figure was based on a projection of the reconstructed missing records. Excluding all estimates and projections, Hall stated that records indicated sales of 591 pounds of marijuana at a cost of $234,000.00. Hall further stated that the slips he examined indicate the balances disclosed thereon were outstanding; that in his experience such records were destroyed as soon as the amount due was paid. Hall also indicated that persons dealing in large amounts of marijuana have a large working cash fund.

Appellant raises two issues on appeal. These are: 1) whether the evidence is sufficient to establish that the $111,450.00 is derivative contraband; and 2) whether there are any appealable Orders prior to the Order of denial of appellant’s Petition for Reconsideration.

First, we will consider whether the appeal was timely taken. On March 21, 1979, following a hearing in the court below on appellant’s Application for the Return of Money, Judge Kremer, on the proposed Order submitted by appellant, crossed out appellant’s Order and marked “3/21/79 Room 784, Petition Denied, By the Court, Kremer, J.” This Order was duly docketed. Appellant did not file a Petition for Reconsideration until November 14, 1979. This petition was subsequently denied on March 7, 1980, and appellant took this appeal on April 7, 1980.

Appellant cites three reasons for not filing a timely appeal from the March 21, 1979 Order. First, appellant contends that this Order violated Pa.R.A.P. 301(b), in that the Order is to be “set forth on a separate document.” We cannot agree with appellant’s contention; the Order is set forth on a separate document, that document being the Order supplied by appellant himself.

Secondly, appellant alleges that the March 21st Order was not appealable in that it failed to comply with Pa.R. Crim.P. 324(b), by not setting forth a finding to the effect that the $111,450.00 was contraband, nor that the fund was to be forfeited. Pa.R.Crim.P. 324 states as follows:

“(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
(b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(c) A motion to suppress evidence under Rule 323 may be joined with a motion under this rule.”

In the-present case, immediately before formulating the Order, the lower court stated as follows:

“I am fully satisfied from the evidence that the Commonwealth has proved that the $111,000 is derivative contraband. At the same time I am fully satisfied from the evidence that the defendant has failed, completely, to prove or show, yielding no burden upon him, but he has failed to show to the satisfaction of this Court in any way, with the testimony given, that he is the real owner of the $111,000. Approached from either one of those directions, I am denying the petition.”

Clearly, the court determined that the $111,450.00 was contraband and thus the property was to be forfeited. The court found as a fact that appellant had no interest in the fund. Moreover, a final appealable order is one which ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974). An order will also be treated as final if the practical consequence is, in effect, to put an appellant out of court, or if it precludes an appellant from presenting the merits of the claim to the lower court. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) . In the present case, the March 21, 1979, Order was an appealable order and thus the dictates of Pa.R.A.P. 903(a) apply.

Appellant finally contends that the March 21, 1979, Order was not appealable since the docket is devoid of any notation of notice of entry of this order to the parties as dictated by Pa.R.Civ.P. 236(b) and Pa.R.A.P. 108(b). Also, appellant cites Yeaple v. Yeaple, 485 Pa. 399, 402 A.2d 1022 (1979), and Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1977), in support of his proposition. However, we do not view this as being a civil order in that this proceeding is clearly governed by the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 324 creates the right and supplies the procedure for a Motion for Return of Property. Further, appellant’s reliance on Commonwealth v. Landy, supra, is misplaced. In Landy, supra, we held that forfeiture proceedings, such as the present one under § 780-128 of the Controlled Substance, Drug, Device and Cosmetic Act, are civil as to their burden of proof, but quasi-criminal in character. However, in matters of procedure, the Rules of Criminal Procedure clearly govern and thus the order issued in this action is a criminal order. See Pa.R.Crim.P. 324.

Thus, no notation of notice of entry as to this Order is required on the docket. See Pa.R.A.P. 108(a)(1). Therefore, appellant’s notice of appeal is untimely. See Pa.R. A.P. 903(a).

The appeal is hereby quashed.

JOHNSON, J., concurs in the result.

      . Pa.R.A.P. 903(a) is as follows:
      “(a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.”


author:
BECK, Judge:
      CAVANAUGH, Judge,

text:
    465 A.2d 1010
    COMMONWEALTH of Pennsylvania v. Malcolm R. LINCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1982.
    Filed July 29, 1983.
    Reargument Denied Oct. 7, 1983.

      Richard Keith Renn, Assistant Public Defender, York, for appellant.
    Floyd Paul Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   BECK, Judge:

Appellant, Malcolm R. Linch, was convicted by a jury of violating The Controlled Substance, Drug, Device and Cosmetic Act by selling cocaine to a narcotics agent. Timely post-trial motions were filed and denied and an appeal was taken to this Court which affirmed judgment of sentence.

Subsequently appellant filed a pro se petition and amended petition seeking post conviction relief under the Post Conviction Hearing Act (“PCHA”) alleging inter alia that his trial counsel, who was also counsel on appeal, was ineffective in failing to contact certain eyewitnesses whose testimony he claimed would have been favorable to his defense. After a hearing at which appellant proceeded pro se, post conviction relief was denied. This appeal is from the July 1, 1981 order denying that relief.

The test for evaluating a claim foregone under the ineffectiveness of counsel calculus is well-settled:

We [initially] evaluate the foregone claim to see whether it bore arguable merit. If it did, we must ascertain whether counsel had a reasonable basis for foregoing that claim.

Commonwealth v. McKnight, 307 Pa.Super. 213, 217, 453 A.2d 1, 3 (1982) (citing Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980)).

We proceed to review the facts underlying the ineffectiveness claim in that light. On May 18, 1976, Keith Miller, who was an undercover narcotics agent, went to appellant’s home. He was accompanied by an informant named Richard “Honky” Jackson and an unidentified man whom Jackson knew. The three men entered appellant’s home seeking to purchase cocaine. Miller testified that he purchased from appellant six glassine bags of cocaine. He also testified that he returned to appellant’s residence on May 25, 1976, accompanied by a woman whom he had only recently met at a bar and whom he knew only as “Suzie,” and purchased from appellant six more glassine bags of cocaine.

Appellant and Darlene Sheeler, who was living with him during the relevant period and who is the mother of three of appellant’s children, both testified that the agent and the other individuals indeed did come to their residence and did seek to purchase narcotics, but that appellant did not sell them any narcotics.

It is uncontroverted further that trial counsel, although aware of the identity of Mr. Jackson, did not interview him. Appellant argues that prior counsel was ineffective in failing to ascertain the nature of this witness’ testimony—testimony that appellant claims would have been beneficial to him.

Trial counsel explained at the PCHA hearing his decision not to contact Jackson. He based that decision upon his experience as a prosecutor in the area of narcotics transactions and upon Jackson’s role as an informant. He concluded that Jackson’s testimony would not be helpful to appellant. Trial counsel further stated that appellant agreed that Jackson “probably was getting some benefit from the DA’s Office or the Court for doing this and probably would be a hostile witness to him.” Notes of Testimony 10/16/80 at 13 (emphasis added).

The facts then are very similar to those presented to our Supreme Court in Commonwealth v. Jones, 496 Pa. 448, 437 A.2d 958 (1981). In Jones, our Supreme Court construed in the following manner trial counsel’s position as stated at the PCHA hearing: “It is apparently counsel’s position that since [the witness] had been an informant in other drug cases and had allegedly been in protective custody prior to trial, his testimony would have been favorable to the Commonwealth and harmful to appellant.” Id., 496 Pa. at 450-51, 437 A.2d at 959.

There is, of course, arguable merit in interviewing an eyewitness to a crime to ascertain whether or not to call that witness at trial. The remaining question before us is whether, in the instant case, trial counsel had a reasonable basis for not interviewing the witness. In Jones, the Supreme Court relied upon Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) in squarely holding that there was no reasonable basis for failing to so interview:

However hostile these witnesses may have appeared to be, there is no basis for the decision neither to interview them nor to attempt to do so. While hostile witnesses at trial may have presented added difficulties to appellant’s case, the question here is the decision not to interview them, not the decision to refrain from calling them at trial. Accordingly, there was no danger of hostile witnesses inflaming a jury during an interview to determine what each saw and their degree of potential hostility. Rather, the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them due to hostility and, as a matter of strategy, that decision on counsel’s part would not be subject to a claim of ineffective assistance of counsel. Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973). However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial. Therefore, no reasonable basis designed to effectuate Mabie’s interest can be attributed to counsel’s failure to question these witnesses or at least make a reasonable attempt to do so.

Jones, 496 Pa. at 451, 437 A.2d at 959-60 (emphasis in original) (quoting Mabie, 467 Pa. at 475, 359 A.2d at 374-75). We are bound by the unanimous Jones decision and accordingly we find no reasonable basis for trial counsel’s failure either to interview Mr. Jackson or even to seek to discover what his testimony would be at trial.

The dissent seeks to distinguish Jones from the instant matter because the informant-eyewitness in Jones testified at the PCHA hearing and offered testimony which corroborated appellant’s story. While we acknowledge that this factual distinction between the two cases does exist—that is, the informant-eyewitness did not testify at the PCHA hearing in the instant appeal—the Jones holding cannot be read to be premised upon that distinction. In reciting the relevant facts of that case, Justice Wilkinson speaking for a unanimous Supreme Court stated:

The relevant facts are as follows. Appellant was convicted for allegedly selling four packets of heroin to an undercover policeman. The Commonwealth’s evidence at trial consisted of testimony by the undercover policeman that appellant sold him the heroin for $40 and that the transaction was arranged by George Paine, an informant, who introduced appellant to the undercover officer. Appellant, the sole defense witness, denied selling heroin to the officer and alleged that Mr. Paine was an eyewitness to the entire course of events. Mr. Paine was not called to testify at trial, nor did trial counsel interview this prospective witness prior to deciding not to call him to testify at trial.

Jones, 496 Pa. at 450, 437 A.2d at 959 (footnote omitted). Those facts then are virtually indistinguishable from the facts in the instant appeal. The Supreme Court held, relying upon Mabie, that “counsel’s decision not to interview an available eyewitness to the incident does not amount to effective representation of counsel.” Jones, 496 Pa. at 451, 437 A.2d at 960. Moreover, the factual distinction upon which the dissent relies was not present in Mabie. There the eyewitnesses whom defense counsel failed to interview or even to attempt to interview did not testify at the PCHA hearing. The rule of law enunciated in both Mabie and Jones was aimed at precisely the sort of conjecture in which trial counsel in the instant appeal indulged. He concluded, without interviewing the eyewitness, that the testimony he would offer at trial would be hostile to appellant. We reiterate the rationale for the Mabie and Jones holdings: “[T]here was no danger of hostile witnesses inflaming a jury during an interview to determine what each saw and their degree of hostility.” Jones, 496 Pa. at 451, 437 A.2d at 959 (quoting Mabie, 467 Pa. at 475, 359 A.2d at 374).

Order reversed and new trial granted.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. The majority espouses the proposition that trial counsel’s failure to interview an eyewitness prior to trial is per se ineffectiveness of counsel. I disagree and feel that there must be more that this bare allegation by appellant. In my opinion, to show ineffectiveness one must also prove that a reasonble basis exists for concluding that the uninterviewed witness’ testimony would assist or benefit the appellant’s case. Commonwealth v. Everett, 297 Pa.Super. 320, 443 A.2d 1142 (1982). In doing so appellant would be demonstrating that trial counsel was ineffective in that counsel’s strategy had no no reasonable basis to effectuate appellant’s cause. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349, 352 (1967).

The majority relies upon Commonwealth v. Jones, 496 Pa. 448, 437 A.2d 958 (1981) as controlling in the instant case. Although the facts are similar in these cases the two are quite distinguishable. In Jones, the uninterviewed witness actually testified at the appellant’s PCHA hearing and provided exculpatory testimony which corroborated the appellant’s in that case. Therefore the appellant in Jones actually went beyond a mere allegation that trial counsel failed to interview an eyewitness. Other cases such as Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976) can be read as failure to investigate a case, as opposed to the situation present here where a single witness, presumptively adverse, was not interviewed.

      . Act of April 14, 1972, P.L. 233, as amended, § 1 et seq., 35 P.S. § 780-113(a)(30).

      . "[[Ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents appellant.” Commonwealth v. Webster, 490 Pa. 322, 325, 416 A.2d 491, 492 (1980) (collecting cases). Since ineffectiveness was alleged in the instant appeal at the first stage at which trial counsel no longer represented appellant, that claim was properly preserved for our review.

      . Appellant claims also that prior counsel was ineffective in failing to ascertain the testimony of another witness, Donald Zink. Although Darlene Landis (formerly Sheeler), the woman with whom appellant lived, testified at the PCHA hearing that Zink was in their home on both occasions, she acknowledged that she never told trial counsel of Zink’s existence. Also, at trial appellant did not mention Zink when asked who was present on those two occasions. We conclude, then, as did the lower court, that trial counsel was not aware that such a witness existed. It is, of course, clear that counsel is not ineffective for failing to contact a witness the existence of whom is not known. E.g., Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982) (collecting cases). Accordingly, we reject this claim of ineffective counsel.