author: POPOVICH, Judge:

text:
    666 A.2d 313
    COMMONWEALTH of Pennsylvania, Appellant, v. Vincent Francis CASS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Filed Oct. 4, 1995.

      Joseph P. Conti, Assistant District Attorney, Erie, for Commonwealth, appellant.
    James A. Pitonyak, Erie, for appellee.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This case presents us with the important question as to whether public school officials can conduct a “canine sniff search” of a student’s locker without having reasonable suspicion that the student was engaging in illegal activity.

The Commonwealth appeals from an order entered in the Court of Common Pleas of Erie County granting appellee’s, Vincent Cass, motion to suppress marijuana and drug paraphernalia seized from his school locker after a canine sniff alerted school officials to the possible presence of drugs in his locker. We find that the lower court acted properly in suppressing drug paraphernalia and marijuana that was seized during the search of appellee’s locker.

The factual background of this dispute is as follows: On April 12, 1994, Vincent Cass was a student at Harborcreek High School in Erie County, Pennsylvania on April 12, 1994. During school hours on this day, school officials requested that Pennsylvania State Police Trooper J. Donald Normandy and Erie County Drug Task Force detection dog, “Rudy”, along with his handler, Officer Peter Dragella of the City of Erie Police Department, conduct a sniff search of all student lockers at Harborcreek High School. Students were told to remain in their classes until the search was concluded.

The search was conducted by allowing “Rudy” to sniff all 2000 student lockers. The dog “hit” on approximately eighteen lockers. These lockers, as well as the lockers adjacent to them, were searched by police and school officials. Mr. Cass’ locker was the only locker in which contraband was found. Specifically, Trooper Normandy seized drug paraphernalia and a small amount of marijuana from the pocket of Mr. Cass’ jacket which was hanging in his locker.

Mr. Cass, after being brought to Mr. Papesh’s office and given his Miranda warnings, admitted that the items seized were his. This admission resulted in charges of Possession of Marijuana and Possession of Drug Paraphernalia.

A suppression motion was filed, and a hearing was held on this motion before the Honorable Shad Connelly. The Commonwealth presented the testimony of Harborcreek High School Principal Mr. Donald Papesh who stated that during the school year he had received phone calls which indicated that students were using and distributing drugs. Mr. Papesh also received information that students were carrying beepers, using public telephones in the school more than what he believed was necessary and carrying large sums of money. Students were observed “exchanging items” in school hallways. Mr. Papesh stated that he noticed suspicious activities occurring in the hallways and observed what he believed were students under the influence of drugs. In regard to Mr. Cass, Mr. Papesh never received any information that Mr. Cass was using or distributing drugs. The decision to search the lockers was based upon the general information Mr. Papesh received, and the final decision to conduct the search was made by school officials.

Harborcreek School District handed out a “Code of Student Conduct” to all students. The Code of Student Conduct was distributed each academic year since 1988 and most recently in March of 1994. This Code of Student Conduct specifically provided guidelines as to when a locker could be searched:

SEARCHES
School authorities may search a student’s locker and seize any illegal materials. Such materials may be used as evidence against the student in disciplinary proceedings. Prior to a locker search a student shall be notified and given an opportunity to be present. However, where school authorities have a reasonable suspicion that the locker contains materials which pose a threat to the health, welfare, and safety of students in the school, students’ lockers may be searched without prior warning.

Prior to this random search, school officials had previously opened lockers, for example, when students were discovered with tobacco or when there was a rotting lunch in a locker. Finally, evidence was presented that Mr. Cass was subject to prior locker searches after he was caught smoking. After hearing all of the evidence, the suppression court found that Harborcreek High School officials had acted improperly and granted Mr. Cass’ motion to suppress.

The Commonwealth’s timely appeal is now before us, and the following questions are presented:

1. Whether the lower court’s order of suppression was in error because the evidence demonstrated that the search was supported by reasonable suspicion and was reasonable in scope?
2. Whether the lower court’s order of suppression was in error because the evidence failed to demonstrate a reasonable expectation of privacy in the area searched?
3. Whether the lower court’s order of suppression was in error because the appellee failed to demonstrate an actual expectation of privacy in the area searched?

Our standard of review of suppression court’s ruling is well-established:

When reviewing the Commonwealth’s appeal from an adverse decision of the suppression court, we must consider “only the evidence of defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court’s findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id. It is the sole province of the suppression court, as finder of fact, to weigh the credibility of the witnesses. Id. Thus, the fact finder is free to believe all, part or none of a witnesses’ testimony.

Commonwealth v. Quiles, 422 Pa.Super. 153, 154, 619 A.2d 291, 292 (1993).

The Commonwealth now contends that the search of Mr. Cass’ locker was supported by reasonable suspicion and was reasonable in scope because Mr. Cass failed to demonstrate a reasonable expectation of privacy in the area searched.

The United States Supreme Court’s seminal pronouncement on the propriety of searches by school officials on school grounds was in the case of New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The Court held that the Fourth Amendment to the United States Constitution applied to searches conducted by public school officials. 469 U.S. at 333, 105 S.Ct. at 738, 83 L.Ed.2d at 729. The Court also stated that the Fourteenth Amendment “protects the rights of students against encroachment by public school officials ...” 469 U.S. at 334, 105 S.Ct. at 738, 83 L.Ed.2d at 729. In formulating a standard that would govern searches conducted by school officials, the Court announced:

“[PJrobable cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, ... in certain limited circumstances neither is required.” Almeida-Sanchez v. United States, supra, 413 U.S., [266] at 277, 93 S.Ct. [2535] at 2541 [37 L.Ed.2d 596 (1973) ] (POWELL, J. concurring). Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although “reasonable,” do not rise to the level of probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975); Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); cf. Camara v. Municipal Court, supra, 387 U.S. [523] at 534-539, 87 S.Ct. [1727] at 1733-1736 [18 L.Ed.2d 930 (1967)]. Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.
We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the ... action was justified at its inception,” Terry v. Ohio, 392 U.S., at 20, 88 S.Ct., at 1879; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,” ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

T.L.O. 469 U.S. at 340-342, 105 S.Ct. at 742-743 (footnotes omitted).

Examining the facts of this case in light of the holding of T.L.O., we find that Harborcreek High School officials did not have a proper basis for conducting the search of Cass’ locker. We first note that the canine sniff is the action with which we are concerned because this constitutes a search under Pennsylvania law according to Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1982) (holding that a canine sniff is a search for purposes of the Fourth Amendment); See also, Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556 (1993).

Here, Harborcreek High School officials did not have the necessary reasonable suspicion to conduct a sniff search of Mr. Cass’ locker. Thus, the search was not justified at its inception. Mr. Papesh only heard vague reports that students were using drugs and dealing drugs. The record is devoid of evidence of particular incidents of drug use or drug dealing. There is also no evidence that Mr. Cass was using or dealing in drugs. We realize that drug abuse among students is a legitimate concern for school officials. However, vague, unsubstantiated reports do not amount to reasonable suspicion that was necessary to conduct the canine sniff search.

The Commonwealth contends that the search was justified because Mr. Papesh observed students carrying beepers, making numerous phone calls from pay telephones at the school, carrying large amounts of money and exhibiting symptoms of what he believed was drug use. Simply because students carry beepers, make frequent phone calls and carry money does not indicate that the student is involved in drug dealing.

Courts faced with a similar question in other jurisdictions have upheld searches of students’ lockers. However, in all these cases there was substantially more evidence justifying the search of the students’ lockers. For example, in S.A. v. Indiana, 654 N.E.2d 791 (Ind.App.1995), there were a number of high school locker break-ins, and it was subsequently discovered that the school’s master locker combination book had been stolen. Id. at 792. School security officials were given information that defendant possessed the combination book which resulted in a warrantless search of defendant’s locker and discovery of the book. Id. The Indiana Court of appeals held that a student had no expectation of privacy in his locker and that the warrantless search of that student’s locker was reasonable because of the information school authorities had regarding defendant’s possession of the book. Id. at 792. In People v. Joseph G, 32 Cal.App.4th 1735, 38 Cal.Rptr.2d 902 (1995), review denied June 14, 1995, a high school vice-principal received information from a parent that a student was in possession of a gun. Id. 38 Cal.Rptr. at 903. The vice-principal conducted a warrantless search of the defendant’s locker and seized a gun. Id. at 903-904. The California Court of Appeal held that the lower court properly refused to exclude the gun because the vice-principal had a reasonable suspicion to conduct the search. Id. at 905-906. See also, In the Interest of Isiah B., 176 Wis.2d 639, 500 N.W.2d 637 (1993), cert. denied Isiah B. v. Wisconsin, — U.S. -, 114 S.Ct. 231, 126 L.Ed.2d 186 (1993) (holding that random search of student’s locker was justified because there were shooting incidents on school grounds and school had policy allowing for searches of lockers for any reason); Commonwealth v. Jeffrey Snyder, 413 Mass. 521, 597 N.E.2d 1363 (1992) (holding that even though student had a reasonable expectation of privacy in his locker, school officials properly conducted a warrantless search of the student’s locker because the officials had probable cause to believe that the locker contained marijuana); In the Interest of S.C., 583 So.2d 188 (1991) (holding that assistant principals did not violate student’s constitutional rights when they conducted a warrantless search of his locker because defendant consented to the search and the officials had information that defendant attempted to sell a gun to a fellow student).

The facts in this case are inapposite to the above cited cases. Mr. Papesh had only generalized reports of drug dealing and drug use. Mr. Papesh admitted that he had no information that Mr. Cass was selling drugs on school grounds, that Mr. Cass had drugs in his locker, or that Mr. Cass was engaging in any of the “suspicious” behavior on school grounds. All of the searches in the aforementioned cases were initiated because a school official had reliable information that a particular student had violated the law. Thus, we find meritless the Commonwealth’s argument that reasonable suspicion existed to justify the search.

The Commonwealth also erroneously argues that Mr. Cass did not have a reasonable expectation of privacy in his locker.

In In the Interest of Dumas, 357 Pa.Super. 294, 515 A.2d 984 (1986), we held that a student has a legitimate expectation of privacy in his or her school locker. Dumas involved the search of Guy Dumas’ locker by Mr. Grode, an assistant principal, after a teacher observed Dumas retrieving a pack of cigarettes from his locker. Id. 515 A.2d at 985. During the locker search, the assistant principal discovered marijuana. Id. At a suppression hearing Mr. Grode testified that he suspected Dumas of being involved with drugs but was not able to state a basis for this suspicion. Id.

Relying on the T.L.O. decision, we stated that a student’s expectation of privacy in a jacket or purse was not lost merely because the student placed the jacket or purse in his or her locker. Id. 515 A.2d at 985. Thus, a student had a legitimate expectation of privacy in his or her locker. Id. at 986.

In the case sub judice, Mr. Cass had a reasonable expectation of privacy in his locker. The Code of Student Conduct specifically states that a school official must have reasonable suspicion to believe that contraband will be found in a locker before the locker can be searched. This demonstrates that the school district recognized that a student has at least a minimal expectation of privacy in his or her locker. This conclusion is further reinforced by the fact that the Code of Student Conduct also allowed the student to be present for the search. If the student did not have a reasonable expectation of privacy, then it is logical that the student would not háve a right to be present at a locker search. Finally, Principal Donald Papesh testified at the suppression hearing as to various reasons he would need to open a student locker. As appellee correctly notes, a student must have a reasonable expectation of privacy if Mr. Papesh needed a reason to open a locker. If a student did not have an expectation of privacy, then Mr. Papesh could open a locker any time for any reason.

The Commonwealth contends that Mr. Cass did not have a reasonable expectation because he was subject to prior locker searches by school officials for prior violations of the school’s Code of Conduct. Such an argument is disingenuous. Simply because appellant had been subjected to searches in the past does not give school officials the right to use these past violations as a basis to conduct a search. Moreover, these searches had been based upon information that Mr. Cass was violating school rules. The Commonwealth’s attempt at denying that a reasonable expectation of privacy exists is meritless.

Finally, the Commonwealth contends that lower court’s order of suppression was in error because Mr. Cass failed to demonstrate an actual expectation of privacy in the area searched.

The Pennsylvania Supreme Court stated, in Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993):

The protection of the Fourth Amendment does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
An expectation of privacy is present when the individual, by his conduct, “exhibits an actual (subjective) expectation of privacy” and that the subjective expectation “is one that society is prepared to recognize as ‘reasonable’ ”. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances. Additionally, a determination of whether an expectation of privacy is legitimate or reasonable entails a balancing of interests.

Id. 620 A.2d at 1118 (Citations omitted).

Here, Mr. Cass obviously meant to keep the contents of his locker private from the public. Mr. Cass’ locker was locked, and this fact would indicate that he meant to keep the contents private. Simply because he did not own the locker does not preclude him from having an actual expectation of privacy. See, Brundidge supra (holding that a hotel guest has a legitimate expectation of privacy in his room during the period of time for which the room is rented); Commonwealth v. Gordon, 433 Pa.Super. 157, 640 A.2d 422 (1994) (stating that a person need not have property rights in a place searched in order to be protected from unreasonable searches and seizures). Accordingly, this final allegation of error fails.

Order affirmed.

HUDOCK, J., concurs in the result.

      . "Hit” is a term used to indicate that the dog has detected the odor of narcotics in a particular location.

      . 35 Pa.S.A. § 780-113(a)(31).

      . 35 Pa.S.A. § 780-113(a)(32).

      . We have renumbered the Commonwealth’s questions presented for purposes of writing this opinion.

      . The Fourth Amendment to the United States Constitution provides:
      The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      Article I, Section 8 of the Pennsylvania Constitution provides:
      The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

      . The Court specifically declined to address the question of whether a student has a legitimate expectation of privacy in a school locker. T.L.O. 469 U.S. at 337 n. 5, 105 S.Ct. at 740 n. 5.

      . The United States Supreme Court has held that a canine sniff is not a search for Fourth Amendment purposes. See, United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). We have held that the Pennsylvania Constitution can provide greater safeguards than the United States Constitution. Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984).

      . We note that the actual search in this case was conducted by law enforcement officers and the searches in the T.L.O. and Dumas cases were conducted by school officials. However, we believe that T.L.O.
        and Dumas are appropriate authorities for resolution of this case because the law enforcement officers conducted the search at the request of Harborcreek High School officials. Thus, the officers were acting with the consent of the high school officials and it is the school officials' actions with which we are concerned. See, e.g., Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593, allocatur denied, 526 Pa. 646, 585 A.2d 466 (stating that a third party can give valid consent to a search).

      . Mr. Cass had apparently been caught smoking on previous occasions.

      . We note here that a panel of this court, in In the Interest of F.B., 442 Pa.Super. 216, 658 A.2d 1378 (1995), held that a random search of student as part of a school-wide search of students for weapons was reasonable. Id. 658 A.2d at 1379-1380. We also held that no individualized suspicion was necessary to conduct the search. Id. at 1380.
      In F.B., University High School in Philadelphia had a policy prohibiting weapons and drugs on school grounds. Id. Students and parents were notified of this policy throughout the school year and searches of students were conducted on a regular basis. Id. Signs were posted throughout the school notifying the students of these searches. Id. We held that a student's privacy interest was greatly reduced because of the search policy. Id. at 1382. Thus, the search was reasonable because of the student’s reduced privacy expectation and also because the searches of students followed a uniform procedure. Id. We specifically did not determine whether the random selection process of students was proper, nor did we address whether the same type of search for drugs in order to promote safety in the school would have been proper. Id.

      Our holding in this case does not conflict with our holding in F.B. because we are dealing with a drug search. We specifically declined to address this question in F.B. Moreover, Harborcreek High School did not regularly conduct searches as did University High School in F.B.


source: Caselaw Access Project

author: KELLY, Judge: HUDOCK, Judge,

license: Public Domain

text:
    666 A.2d 319
    Michelle SCHICKLE, Appellee, v. Larry McFARLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 30, 1995.
    Filed Oct. 12, 1995.

      Linda F. Gerencser, Assistant Public Defender, Lancaster, for appellant.
    Gina R. Brownfield, Lancaster, for appellee.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   KELLY, Judge:

This appeal asks us to determine whether the trial court erred when it entered the September 28, 1994 order requiring appellant, Larry McFarlin, to comply with the Domestic Relation Officer’s September 27, 1994 recommendation and commence payment of support to appellee, Michelle Schickle, for appellee’s minor child. Specifically, we must determine whether appellant was entitled to a jury trial regarding the issue of his paternity of appellee’s minor child after this case was remanded to the trial court for a new trial by this Court even though appellant did not demand a jury trial in the initial proceeding. We hold that appellant’s written demand for a jury trial on this paternity issue was timely filed and should have been granted. Accordingly, we reverse and remand.

The relevant facts and procedural history of this case are as follows. Appellee originally initiated this paternity action by filing a complaint for child support against appellant in March 1988. Subsequently, on April 13, 1988, a support conference was held. At this conference, appellant failed to acknowledge his paternity of appellee’s minor child. Appellant and appellee also acknowledged their right to demand a jury trial within ten days of the conference pursuant to Pa.R.Civ.P. 1910.15(b) by executing the notice of right to trial on issue of paternity form which complied with Pa.R.Civ.P. 1910.28(b). Because neither appellant nor appellee elected to request a jury trial within ten days of the conference, a non-jury trial was held to determine whether appellant was the father of appellee’s minor child.

After the non-jury trial, on March 27, 1989, the trial court found that appellant was not appellee’s minor child’s father. Appellee appealed this determination. On appeal, this Court reversed the trial court’s March 27, 1989 ruling and remanded for a new trial because the trial court excluded from evidence the Human Leukocyte Antigen (HLA) blood tests which indicated that the probability of appellant being the father of appellee’s minor child was 98.83%. See Corteguera v. McFar lin, 410 Pa.Super. 659, 590 A.2d 379 (1991) (Table). Appellant appealed this Court’s decision to our Supreme Court. Our Supreme Court originally granted allocatur to appellant’s appeal; however, it was subsequently dismissed as improvidently granted on November 16, 1992. See Corteguera v. McFarlin, 532 Pa. 302, 615 A.2d 734 (1992).

Accordingly, appellee filed an amended complaint regarding appellant’s paternity of her minor child on June 1, 1993. Nine days later, appellant filed a motion demanding a jury trial on the paternity issue. This motion was denied by the trial court’s order dated July 8, 1993 and a second non-jury trial was held on October 20, 1993. After the second non-jury trial, by order dated October 20, 1993, the trial court found appellant to be the father of appellee’s minor child. Consequently, after the denial of post-verdict motions, on September 28, 1994, the final order of support was entered and appellant timely filed a notice of appeal with this Court.

Appellant raises the following issues for our review:

I. DID THE LOWER COURT ERR IN DENYING DEFENDANT’S MOTION FOR A JURY TRIAL?
II. DID THE LOWER COURT ERR IN SUSTAINING PLAINTIFF’S OBJECTION TO DEFENDANT’S INTENDED INTRODUCTION OF EVIDENCE WHICH WOULD HAVE IMPEACHED PLAINTIFF’S CREDIBILITY?

Appellant’s Brief at 3.

In his first contention of trial court error, appellant claims that his failure to timely demand a jury trial prior to the first non-jury trial regarding the paternity of appellee’s minor child does not preclude him from demanding and being granted a jury trial upon remand of this case pursuant to this Court’s holding that the HLA blood tests were improperly excluded from evidence. We agree.

Paternity determinations with regard to children born out of wedlock are civil actions and are “made without a jury unless either party demands a trial by jury.” 23 Pa. C.S.A. § 4343(a). See Smith v. Beard, 326 Pa.Super. 95, 100, 473 A.2d 625, 628 (1984) (paternity actions are civil actions in which no absolute right to trial, with or without jury, exists); Eadie v. Bohatch, 411 Pa.Super. 304, 310, 601 A.2d 361, 363-64 (1992) (paternity actions are civil actions in which summary judgment may be granted against party who refuses to submit to blood tests). Because paternity determinations are civil actions, they are governed by the Rules of Civil Procedure. Smith v. Beard, supra at 100, 473 A.2d at 628; Commonwealth v. Roy, 322 Pa.Super. 218, 221, 469 A.2d 261, 263 (1983). Hence, the Rules of Civil Procedure pertinently provide as follows:

(a) If the action seeks support for a child born out of wedlock and the reputed father is named as defendant, the defendant may acknowledge paternity in a verified writing substantially in the form provided by Rule 1910.28(a). In that event the action shall proceed as in other actions for support.
(b) If the reputed father does not execute an acknowledgement of paternity, the conference officer shall terminate the conference. The conference officer shall advise the parties that there will be a trial without jury on the issue of paternity unless within ten days after the conference either party demands a trial by jury as provided by Rule 1910.28(b).

Pa.R.Civ.P. 1910.15(a), (b). This rule only establishes the procedure for demanding jury trial in paternity actions and does not confer any substantive rights. Smith v. Beard, supra at 100 n. 6, 473 A.2d at 628 n. 6. Accordingly, a reputed father is entitled to a jury trial on the issue of paternity if it is demanded within ten days of the support conference.

It is well established that “the grant of a new trial means a new trial generally; it restores the case to the status it had before any trial took place, and it is fully open to be tried de novo as to all the parties and all the issues.” Cason v. Smith, 188 Pa.Super. 376, 382, 146 A.2d 634, 637 (1958) (emphasis added) (citing Pennsylvania Co. for Ins. on Lives and Granting Annuities v. Lynch, 308 Pa. 23, 28, 162 A. 157, 158 (1932); Iwankow v. Colonial Life Ins. Co. of America, 120 Pa.Super. 114, 120, 181 A. 870, 872 (1935)). See Pupich v. Bock, 202 Pa.Super. 382, 385, 195 A.2d 809, 811 (1963) (grant of new trial restores case to original status); Mains v. Moore, 189 Pa.Super. 430, 434, 150 A.2d 549, 551 (1959) (same). A new trial in toto must occur. McGine v. State Mut. Ben. Soc., 135 Pa.Super. 35, 37, 4 A.2d 537, 538 (1939) (citing Campbell v. Nat.-Ben Franklin F.I. Co., 123 Pa.Super. 274, 187 A. 217 (1936)). In other words, where a new trial has been granted,

... the case stands as though there had never been a trial. The law of the case doctrine does not apply ... and rulings of the court at the former trial are not binding on the court at the new trial. The trial court has the same power with reference to matters connected with the trial of the case as it had before the first trial was had; it is the duty of the court to proceed as in the first instance, and the new trial is had as though there had never been a previous one.

66 C.J.S. New Trial § 226 at 580 (footnotes and citations omitted).

Instantly, this Court originally ordered a new trial because we found that relevant evidence regarding the probability of appellant’s paternity of appellee’s minor child was improperly excluded at the first trial. Accordingly, after our Supreme Court dismissed appellant’s appeal on November 16, 1992, this case was restored to the original status it had prior to the occurrence of the first trial. This new trial was fully open to be tried de novo as to all issues. Appellant’s failure to demand a jury trial within ten days of the April 13, 1988 support conference had no bearing whatsoever on his ability to demand a jury trial once this case was remanded to the trial court. Indeed, as this case was to be conducted as though the March 27, 1989 non-jury trial had never occurred, see 66 C.J.S. New Trial § 226 at 580, appellant possessed the right to demand a jury trial at some point in time after appellee had filed her amended complaint. See 23 Pa.C.S.A. § 4343(a). See also Smith v. Beard, supra. Thus, because appellant moved for a jury trial on the issue of his paternity of appellee’s minor child nine days after appellee filed her June 1, 1993 amended complaint, appellant did not waive his right to a jury trial. Therefore, the trial court erred in denying a jury trial to appellant on this issue.

Based upon the foregoing, we conclude that appellant was entitled to a trial by jury on the issue of his paternity of appellee’s minor child after this Court remanded this case for a new trial. Thus, the trial court’s support order is reversed and this case is remanded for a jury trial on the issue of appellant’s paternity of appellee’s minor child.

Order reversed; case remanded. Jurisdiction relinquished.

HUDOCK, J., files a dissenting opinion.

HUDOCK, Judge,

dissenting.

Respectfully, I dissent. The majority correctly points out that “a reputed father is entitled to a jury trial on the issue of paternity if it is demanded within ten days of the support conference.” Majority Op. at p. 83. Both Mother and McFarlin were notified of their right to demand a jury trial on the issue of paternity at the April 13, 1988 support conference. Neither party demanded a jury trial on or before April 23, 1988 — the date when the ten day period expired. Because McFarlin did not demand the jury trial within ten days from the date of the original support conference, I would agree with the trial court that McFarlin waived his right to a jury trial on the issue of paternity.

The majority correctly cites 23 Pa.C.S.A. section 4343(a) as guaranteeing McFarlin the right to a jury trial on the issue of paternity. However, the right to a jury trial in a paternity action is not absolute and may be waived, either expressly or by implication. Smith v. Beard, 326 Pa.Super. 95, 100, 473 A.2d 625, 628 (1984); see also Cohen v. Sykes, 180 Pa.Super. 427, 428-30, 118 A.2d 208, 209 (1955) (when prothonotary erred by placing case on non-jury trial list even though defendant demanded a jury trial, the defendant was not entitled to a new trial after he proceeded with the non-jury trial). In order to secure a jury trial on the issue of paternity, McFarlin had to comply with the procedure set forth in Rule 1910.15(b). Failing to adhere to this procedure, McFarlin voluntarily waived the right to a jury trial. In Downs v. Scott, 201 Pa.Super. 278, 280, 191 A.2d 908, 910 (1963), this Court stated, “It is the right to a jury trial that is guaranteed by the Constitution and when there is a reasonable method of waiver provided, a party who waives the right in this method cannot contend, after he has lost the case, that he did not legally waive it.” I find that Rule 1910.15(b) provides such a “reasonable method of waiver” making this principle of waiver applicable to the instant case.

A trial court has discretion to allow a party to withdraw a waiver of the right to a jury trial. Rodney v. Wise, 347 Pa.Super. 537, 543, 500 A.2d 1187, 1190 (1985). Ordinarily, if the party demonstrates sufficient legal cause to withdraw a waiver of the right to a jury trial, the court may permit a withdrawal of the waiver. Id. However, “a mere change of heart will not constitute sufficient legal cause for withdrawing an express jury waiver.” Id.

In the instant case, McFarlin has not offered any explanation or legal cause which would justify a withdrawal of his waiver of the right to a jury trial. As such, I find no abuse of the trial court’s discretion in failing to allow him to proceed with a jury trial.

I agree with the majority’s conclusion that once a new trial is granted, the case is tried de novo as to all issues which arose at the original trial. However, this general principle of law does not mean that the parties are entitled to start the civil proceeding over at the pleading stage. Once a case is remanded for a new trial, the case commences as if the original trial never occurred — it does not commence at the pleading stage. Without showing good cause as to why he should be allowed to withdraw his waiver of a jury trial, I would find that McFarlin is not entitled to a second opportunity to demand a jury trial once the case is remanded for a new trial.

      . We note our resolution of this appeal does not require us to determine whether appellant is actually the father of appellee's minor child, and we do not address this issue herein.

      . At this time, appellee's surname was Corteguera. During the course of these proceedings, appellee married and adopted the surname Schickle.

      . A second support conference was not held after this case was remanded; appellant had already failed to execute an acknowledgment of paternity with regard to appellee's minor child at the April 13, 1988 conference. Support conferences terminate once a reputed father fails to execute an acknowledgment of paternity. Pa.R.Civ.P. 1910.15(b). Consequently, because appellant has continually contested his paternity of appellee's minor child, a second conference was unnecessary. Thus, it was impossible for appellant to demand a jury trial within ten days of the conference as per Pa.R.Civ.P. 1910.15(b). Nonetheless, appellant promptly demanded a jury trial nine days after appellee filed her amended complaint. As jury trials ordinarily must be demanded in writing within twenty days of the filing of the complaint to be considered timely, Pa.R.Civ.P. 1007.1(a); see Jones v. Van Norman, 513 Pa. 572, 584, 522 A.2d 503, 509 (1987) (demand for jury trial filed more than twenty days after last permissible pleading was untimely and waived right to jury trial), we conclude that appellant’s written demand for a jury trial regarding his paternity of appellee’s minor child was timely; strict compliance with Pa.R.Civ.P. 1910.15(b) was impossible and appellant demanded a jury trial within twenty days of the filing of appellee’s amended complaint.

      . We note that no need exists to address appellant’s second issue raised on appeal as a result of our remanding this case for a jury trial.


author: TAMILIA, Judge:

text:
    666 A.2d 323
    COMMONWEALTH of Pennsylvania v. James Edwin FITZPATRICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1995.
    Filed Oct. 16, 1995.

      Jack W. Connor, Uniontown, for appellant.
    Ralph C. Warman, District Attorney, Uniontown, for Commonwealth, appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

James Fitzpatrick appeals from the March 2, 1995 judgment of sentence imposing a term of imprisonment of three (3) to twelve (12) months. Following a nonjury trial, appellant was convicted of possession of a controlled substance, namely, 54 grams of cocaine.

On April 29, 1993, a U.S. Postal Inspector, operating pursuant to the Parcel Interdiction Program, intercepted and opened a package addressed to one Jeff Shipley, R.D. # 2, Box 148, Uniontown, Pennsylvania. The package contained in excess of three pounds of marijuana. Thereafter, postal inspectors met with Pennsylvania State Troopers located in Uniontown and the officers agreed that they would perform a controlled delivery of the package to the listed address, which was the residence of one Mark Anthony Kelly. The officers also installed a device in the package which would emit an audible signal when the package was opened. The officers then applied for and obtained an anticipatory search warrant, the execution of which was expressly conditioned upon receiving a positive response from the device implanted in the package. An inspector then delivered the package while other officers set up surveillance. One Randy Lee Casper signed for and received the package on the porch of the residence, but set the unopened package outside the front door and departed. Approximately one hour later, Mark Kelly arrived at the residence with appellant and Tom Webb. Kelly picked up the package and the three entered the house. Ten minutes later, appellant, Kelly and Webb exited the residence, with Kelly carrying the still unopened package. Upon seeing the men attempt to leave the residence, the surveillance team converged. When the officers identified themselves, Kelly began to run toward the back of the house and appellant ran toward his vehicle, but was stopped before reaching it. At that time, postal inspectors Victor Cunicelli and David Shaffer noticed a large bulge in appellant’s front left pocket. Inspector Shaffer asked appellant whether he had any weapons or drugs in his possession and appellant stated that he did not. Inspector Shaffer then conducted a pat-down of appellant and, being unable to determine what was in appellant’s front left pocket, the inspector reached in and withdrew a set of keys and a packet containing 54 grams of cocaine. Immediately thereafter, Inspector Shaffer read to appellant the Miranda warnings. Appellant then stated to Inspector Shaffer, “I shouldn’t have taken it. I shouldn’t have taken it.” (N.T., 2/1/95, p. 58.)

Prior to trial, appellant filed a motion nunc pro tunc to suppress the cocaine and statement. On February 25, 1995, the motion was denied and, on the same date, appellant was convicted of possession of a controlled substance. This appeal followed.

Appellant’s contention on appeal is that the trial court erred in denying his motion to suppress. In reviewing the denial of a motion to suppress evidence, we must first determine whether the suppression court’s factual findings, inferences and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Where the suppression court finds for the Commonwealth, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. Additionally, it is exclusively the province of the suppression court to determine the credibility of the witnesses and weight to be accorded to their testimony. Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). If the factual findings are supported by the record, then we may reverse only for an error of law. Lopez, supra.

We have discussed the applicable search and seizure law as follows:

Pursuant to the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may temporary detain a person if he observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.

Commonwealth v. Patterson, 405 Pa.Super. 17, 20, 591 A.2d 1075, 1077 (1991). The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for his stop. Id. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by the police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). Lastly, to justify a frisk incident to an investigatory stop, police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Instantly, our review of the record reveals the suppression court had ample evidence to support its decision that the police lawfully conducted a protective pat-down search of appellant. Appellant arrived at the scene of the intended execution of a search warrant for drugs with the suspected recipient of the drugs, a well known and violent drug dealer. After spending only a short time inside the residence, appellant then started to leave in the company of the other two men involved, one of whom carried what police knew to be three pounds of marijuana. When appellant saw police, he “hurriedly” ran (N.T. 2/1/95, p. 42) toward his vehicle in an apparent attempt to flee. Further, there was a clearly visible and large bulge in his left front pocket. Under these facts, we find the police had a reasonable belief that their safety was in jeopardy, and a limited search for weapons therefore was warranted. This is especially true in light of our prior holding that when a police officer is confronted with an individual who the officer reasonably believes to be involved in narcotics traffic, a Terry pat-down frisk for the protection of the officer is proper. Patterson, supra (taking judicial notice that drug dealers are likely to be armed and dangerous).

At the suppression hearing, Inspector Shaffer testified as follows:

[DISTRICT ATTORNEY]: Now, what then did you do when you arrived and after having talked with Inspector Cunicelli, what then did you do?
A. Well, Inspector Cunicelli again told me that it was not secure — that the scene was not secure and to pat down the two individuals here near the car. And that’s what I proceeded to do.
Q. And what was the purpose in your pat down of the two individuals at the scene of the car?
A. To ensure the officer’s safety of the individuals that were on the scene.
Q. And what did you see when you observed the defendant?
A. Well, I had — initially when I came up to the defendant, I asked him, “do you have any weapons or drugs?” And he stated, “no.” And I could see that he had a bulge in his pocket at that time, and I believe Inspector Cunicelli had told me there’s something in his pocket.
Q. And when you saw the item in his pocket, what were your concerns?
A. Well, my concern being that it possibly could be a weapon. Again, we had many officers on the scene and up behind there for the safety of all involved.
Q. And when you saw the bulge in his pocket and were being told by Inspector Cunicelli that there was a bulge in his pocket, what did you then proceed to do?
A. I believe I had him lean against his car and I frisked him, brought my hands down over his body to feel for a weapon in the belt or something to that effect.
Q. Prior to your taking anything — going into his pocket, what did it feel like when you were patting him down?
A. It was a bulge. It was large. It was — I believe he was wearing blue jeans. It was tight and it wasn’t something that you could really feel[.]

(N.T., 2/1/95, pp. 53-55.) Based on this testimony, the suppression court, whose role it was to judge the credibility of witnesses, Neely, supra, concluded that the officers had a “reasonable belief [that] their safety was in jeopardy,” Cortez, supra. As the court’s finding is supported by sufficient evidence, it must be affirmed. Lopez, supra.

Finally, appellant argues that the cocaine recovered from his possession should have been suppressed because the search warrant obtained by police was illegally executed. Specifically, appellant claims that since the audible implant was never activated by the opening of the package, an explicit prerequisite to the execution of the warrant, the search of his person was illegal. We reject appellant’s argument. The authority of the police to search appellant was not premised on the warrant but rather on their reasonable suspicion that criminal activity was afoot, Terry, Patterson, supra, and their belief that appellant might be armed. As noted, the police were well aware that appellant’s companion, Kelly, was a drug dealer and that the premises upon which appellant was ultimately arrested were a center for drug activity. Police also knew that the package appellart and Kelly were about to remove from the premises contained in excess of three pounds of marijuana. Further, as police approached the men and identified themselves, Kelly ran away and appellant ran toward his vehicle. These circumstances, in addition to the judicially-recognized fact that individuals involved in the drug trade commonly carry weapons, caused reasonable concern that appellant might be armed. Thus, according to Terry and Patterson, the police were authorized to pat-down appellant, and when the pat-down failed to reveal the nature'of the large bulge in appellant’s pocket, the police were justified in removing what turned out to be keys and 54 ounces of cocaine. Hence, since the authority of the police to detain appellant was based on their reasonable suspicion that he might be armed, and not upon the search warrant, we reject appellant’s final claim.

Judgment, of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).


text:
      666 A.2d 327
    Peter F. SCHENCK and Elizabeth K. Ainslie v. K.E. DAVID, LTD., and Kenneth David, Appellants, v. AINSLIE & SCHENCK.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1995.
    Filed Oct. 17, 1995.

      Mark F. Himsworth, Lansdale, for appellants.
    Elizabeth K. Ainslie, Philadelphia, for appellees.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Kenneth E. David (hereinafter “David”) and K.E. David, Ltd. (together, “appellants”), appeal from the August 9, 1994 entry of judgment following a nonjury verdict in favor of appellees in the amount of $82,000 plus interest.

Between 1987 and 1989, appellee Schenck represented appellants in a federal criminal antitrust trial, at which appellants were acquitted of all charges. Subsequently, Schenck represented appellants in civil antitrust proceedings brought by various parties, one of which was the Commonwealth of Pennsylvania. The Commonwealth sought in excess of $225,-000 in damages, but Schenck was able to negotiate a settlement agreement whereby appellants were obligated to pay only $82,000 to the Commonwealth. The settlement included an agreement by the Commonwealth that it would attempt to collect $32,000 of the settlement amount from another settling defendant, James Desmond, who was David’s debtor in that amount. Appellants then paid $40,000 to the Commonwealth and their insurance company paid another $10,000, leaving only the $32,000 outstanding that the Commonwealth attempted to collect from Desmond. However, Desmond died and his company became insolvent. Thereafter, the Commonwealth notified Schenck that appellants were responsible for the debt. Without notifying appellants, Schenck advanced the $32,000, out of law firm funds, to the Commonwealth. Appellants then refused to repay appellees and this litigation ensued.

Appellants responded to appellees’ complaint by counterclaiming on the basis that Schenck had committed legal malpractice by failing to explain that the $32,000 debt would become appellants’ responsibility if the Commonwealth was unable to collect from Desmond. In November, 1993, appellees’ suit proceeded to a nonjury trial. At the same time, appellants’ legal malpractice counterclaim was tried before a jury. The jury was asked in the form of a verdict sheet whether “Schenck failed to properly explain the effect of the agreement”. The jury’s answer was “no”. Following the jury’s rejection of appellant’s counterclaim, the trial court entered a verdict in favor of appellees for $32,000 plus interest on the basis that appellants had been unjustly enriched.

On appeal, appellants claim that the trial court erred as a matter of law in applying the doctrine of unjust enrichment to the facts of this case.

“Unjust enrichment” is essentially an equitable doctrine. Styer v. Hugo, 422 Pa.Super. 262, 619 A.2d 347 (1993). We have described the elements of unjust enrichment as “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), overruled on other grounds, Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991); see also Burgettstown-Smith v. Langeloth, 403 Pa.Super. 84, 588 A.2d 43 (1991). The application of the doctrine depends on the particular factual circumstances of the case at issue. In determining if the doctrine applies, our focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. State Farm Mut. Auto. Ins. Co. v. Jim Bowe & Sons, Inc., 372 Pa.Super. 186, 190, 539 A.2d 391, 393 (1988), citing Myers-Macomber Engineers v. M.L.W. Construction Corp. & HNC Mortgage and Realty Investors, 271 Pa.Super. 484, 414 A.2d 357 (1979).

The most important factor to be considered in applying the doctrine is whether the enrichment of the defendant is unjust. Styer, supra at 267, 619 A.2d at 350; State Farm Mut. Auto. Ins. Co., supra. Where unjust enrichment is found, the law implies a contract, referred to as either a quasi contract or a contract implied in law, which requires that the defendant pay to plaintiff the value of the benefit conferred. In short, the defendant makes restitution to the plaintiff in quantum meruit. Chesney v. Stevens, 435 Pa.Super. 71, 644 A.2d 1240 (1994); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 290, 291, 259 A.2d 443, 449 (1969).

Instantly, appellants stipulated at trial that they were indebted to the Commonwealth and that Schenck paid the Commonwealth $32,000 on their behalf to satisfy a part of the debt. Supp.R. 3A. Thus, appellees clearly conferred a benefit on appellants and appellants appreciated the benefit. Wolf, Burgettstown-Smith, supra.

We find that the enrichment of appellants was unjust. Chesney, Schott, supra. The record reveals that appellants were charged with serious federal crimes and that Schenck’s efforts resulted in an acquittal on all counts. Similarly, Schenck’s efforts in the subsequent civil suit resulted in what must be considered a highly favorable settlement. The evidence presented at trial also indicates that Schenck paid the debt of appellants with the reasonable expectation that he would be reimbursed and with the belief that he had the implied authority to pay the debt on appellants’ behalf. Thus, contrary to appellants’ claim, Schenck was not an “officious intermeddler”, “who voluntarily interfere[d] with another’s business.” (Appellants’ brief at 12.) Finally, the jury determined that Schenck acted with appropriate skill and care in explaining the settlement agreement with the Commonwealth to David, and that David assumed the debt knowingly and intelligently.

Based on these facts, we find that it would be unconscionable and unjust to allow appellants to retain the benefit of appellees’ payment to the Commonwealth. We therefore affirm the August 9, 1994 judgment in favor of appellees in the amount of $32,000 plus interest.

Judgment affirmed.

      . Appellees were partners in the law firm of Ainslie & Schenck at all times relevant to this appeal.


text:
    666 A.2d 329
    Adrienne BANKS, Appellant, v. TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, et al.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1995.
    Filed Oct. 17, 1995.

      Carl G. Cooper, Philadelphia, for appellant.
    Peter Samson, Philadelphia, for University of PA, appellee.
    Steven G. Leventhal, New Jersey, for SIGMA ALPHA EPSILON, appellee.

      Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Adrienne Banks appeals from the May 13, 1994 Order awarding summary judgment to appellee. Summary judgment was entered in this personal injury action on the basis that appellee owed no duty to appellant.

On October 7, 1988, appellant injured her knee when, attempting to circumvent a fraternity protest which effectively blocked a main campus thoroughfare, she climbed and jumped from a four-foot wall on the campus of the University of Pennsylvania where she was a student. On October 26, 1989, appellant commenced this negligence suit against appellee alleging, inter alia, that appellee was negligent in failing to control the congregation of protestors, failing to remove the blockade formed by protestors, failing to assist pedestrians, allowing plaintiff to circumvent the blockade, failing to properly train and control its security police and failing to monitor and control the fraternities. Following discovery, appellee filed a motion for summary judgment alleging that it had no duty to control the conduct of the protesters who formed the blockade. The motion also alleged that appellant was clearly aware of the condition she contends was hazardous and voluntarily chose to jump off the wall in order to circumvent the protest, rather than choosing any one of several other alternafive routes to her destination. On May 13, 1994, the trial court granted appellee’s motion for summary judgment. This appeal followed.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances the trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Atkinson v. Haug, 424 Pa.Super. 406, 622 A.2d 983 (1993). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (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. See also Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989). A non-moving party may not rely merely upon controverted allegations in the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by Pa.R.C.P. 1035(b), demonstrating that a genuine issue of material fact exists. Ressler v. Jones Motor Company, 337 Pa.Super. 602, 487 A.2d 424 (1985). Finally, we will overturn the 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, 318, 549 A.2d 1311, 1313 (1988).

The standard of care owed to an individual by a possessor of land depends upon whether the individual is a trespasser, licensee or invitee. See Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Restatement (Second) of Torts, §§ 328-343B (1965). The parties agree, for purposes of this appeal, that appellant was an invitee of the University.

As to invitees, possessors of land owe a duty to protect from foreseeable harm. Restatement; supra, §§ 341 A, 343 and 343A. If conditions on the land are known to or discoverable by the possessor, he is subject to liability only where he:

(a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it and
(c) fails to exercise reasonable care to protect them against the danger.

Restatement, supra, § 343. Further, section 343A provides:

[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Our Supreme Court has applied section 343A as follows:

[T]he law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee.

Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983), citing Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 352-353, 414 A.2d 100, 104 (1980). Finally, as recognized by the Restatement, supra, section 328B, comments c and d, the question of whether a danger was known and obvious may be decided by the trial court where reasonable minds cannot differ as to the conclusion. See also Carrender, supra at 186-87, 469 A.2d at 124.

Instantly, we find that the danger associated with jumping from a four-foot wall was both “obvious” and “known” to appellant within the meaning of the Restatement and Pennsylvania law. Indeed, appellant’s own deposition testimony reflects this reality:

Q You also said that you thought it was hazardous to you; how did you feel it was hazardous to you, the blockade?
A Anytime you have to jump over anything, it was hazardous.

Deposition of appellant, 9/10/91, R. 588. Thus, despite recognizing that it was hazardous “to jump over anything,” appellant nevertheless proceeded to climb and jump from the wall. Further, there was nothing presented on the record to indicate that, notwithstanding the obviousness of the danger, appellee should have anticipated that the danger might go unnoticed by appellant or any other student. Carrender, supra. On the contrary, appellee reasonably could expect that, in light of the number of feasible alternative routes to appellant’s destination, she would recognize the danger posed by jumping from the wall and choose to proceed along another route. Id.

Hence, we conclude that the danger posed by jumping from the wall was both obvious and known, and that appellee could have reasonably expected that appellant would avoid the danger.

Moreover, we agree with the trial court that Carrender, supra, compels the award of summary judgment to appellee in the instant case. In Carrender, the plaintiff brought an action against the owners of a chiropractic clinic for injuries she sustained after falling on ice in the clinic’s parking lot. The space in which plaintiff parked was on an incline and covered with snow, despite the fact that other areas of the lot were clear. Plaintiff admitted that she was aware of the ice even before exiting her car. Also, she was admittedly aware that the ice posed a special danger to her because of the prosthesis she wore, which consisted of an artificial lower leg. Plaintiff was able to successfully negotiate the ice when entering the clinic, but she fell on the return trip to her car.

The present case is also similar to Malinder v. Jenkins Elevator and Mach. Co., 371 Pa.Super. 414, 538 A.2d 509 (1988). In Malinder, the plaintiff was struck in the head by a freight elevator at his place of employment. Rather than using an admittedly available intercom system, plaintiff stuck his head through a space in the landing door created by a missing glass panel and yelled to the elevator operator. As he put his head through the opening, he was struck by the elevator, which was already en route.

In both Carrender and Malinder, appellate courts of this state reversed jury verdicts in favor of the respective plaintiffs on the basis that the defendants owed no duty to protect against open and obvious dangers. See Carrender, supra at 188, 469 A.2d at 125; Malinder, supra at 427-28, 538 A.2d at 516.

We find that there are no legally relevant distinctions between this case and Carrender and Malinder. Initially, the dangerous conditions in all three cases existed prior to the plaintiffs’ perceiving the risks of danger, during the plaintiffs’ intentional encounter with them and after the plaintiffs’ encounter with them. Thus, in all cases, the dangers were not only foreseeable, but could not have changed during the relevant time period. This fact is important because the unchanging nature of the danger is a relevant factor in assessing the duty owed by the defendants to the plaintiffs. Malinder, supra at 423-24, 538 A.2d at 514.

Equally important, in all cases, not only were the dangers unchanging, obvious and known by the plaintiffs, but the plaintiffs’ decisions to nevertheless accept the risk of the potential dangers were unreasonable and unnecessary. Id. In Carrender, the plaintiff parked on the only icy section of an otherwise clear parking lot. In Malinder, the plaintiff could have used an operational intercom system. Similarly, in the case before us, appellant had a variety of alternate courses to her destination. Hence, because there were available alternative courses of action which would have avoided the respective dangers, it was unreasonable for all three plaintiffs to accept the risk of danger. Likewise, it was reasonable for the defendants in all cases to expect that anyone encountering the danger would have utilized the alternative means available. Carrender, supra at 187, 469 A.2d at 124; Malinder, supra at 425-26, 538 A.2d at 515.

A final similarity between the cases is that the duty owed by all three defendants was precisely the same, namely, to warn only of dangers which were not known or obvious. See Carrender, supra at 188, 469 A.2d at 125; Malinder, supra at 425-428, 538 A.2d at 515-516.

In sum, because the cases are without a relevant distinction, we find that Carrender and Malinder compel our result here.

Based on the foregoing, we find that appellant has failed to raise a genuine issue of material fact as to the negligence of appellee. Thus, summary judgment was properly entered.

Order affirmed.

      . Although the University of Pennsylvania Inter Fraternity Council was an original defendant and numerous fraternities and sororities were named additional defendants in this matter, none are party to this appeal.

      . At oral argument, counsel attempted to persuade this Court that the trial court erred in concluding appellant "climbed” the wall from which she jumped. However, appellant's own deposition testimony clearly reveals that she did in fact "climb” the wall:
      Q. Did you have to step up [to the wall]?
      A. Yes.
      Q. Did you have to climb up or step up?
      A. Climb up.
      Q. You actually had to use your hands and pull up?
      A. Yes, yes.
      Deposition of Appellant, 9/10/91, p. 71. Appellant’s brief also indicates she “climbed” the wall. (Appellant’s brief at 6.)


author: CERCONE, Judge.

text:
    666 A.2d 333
    Stephen P. FLANAGAN, Appellant, v. Alexander LABE, M.D., Samuel M. Wilson, M.D., Erwin Cohen, M.D., Zaslow-Portner-Cohen, A.F.L.-C.I.O. Hospital Association d/b/a John F. Kennedy Memorial Hospital.
    Superior Court of Pennsylvania.
    Argued June 29, 1995.
    Filed Oct. 19, 1995.

      Barbara Axelrod, Philadelphia, for appellant.
    Arthur B. Keppel, Philadelphia, for A.F.L.-C.I.O. Hospital, appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from an order of court granting summary judgment against appellant Stephen Flanagan and in favor of appellee John F. Kennedy Memorial Hospital. We affirm.

The trial court has provided us with the following concise summary:

On or about December 2,1991, [appellant] Stephen Flanagan, went to the Emergency Department of the John F. Kennedy Memorial Hospital for treatment of spontaneous left pneumothorax [collapsed lung]. While at the hospital a chest tube was inserted into Mr. Flanagan’s left anterior chest wall. Subsequent to this procedure, [appellant] claims that substandard nursing care led to the development of “progressively worsening subcutaneous emphysema.”

Trial court opinion dated February 7, 1995 at 2. Appellant then filed a medical negligence action. Specifically, appellant maintains that the hospital’s nursing staff failed to document the patient’s complaints of pain and response to medication and failed to monitor his breathing or palpate his chest This deviation from the standard of reasonable nursing care substantially contributed to an exacerbation of subcutaneous emphysema. To support these allegations, appellant presented only one witness, Audrey Stephan, Ed.D., R.N.

On June 27, 1994, the morning of trial, the lower court granted appellee hospital’s motion in limine seeking to preclude Nurse Stephan from providing expert testimony on the issue of causation. The absence of this testimony prevented appellant from stating a prima facie case of malpractice. Accordingly, the trial court granted appellee’s motion for summary judgment. In the instant timely appeal from that order, appellant maintains that because Nurse Stephan was competent to testify as to causation, summary judgment was improper.

We note' initially that summary judgment may be granted when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035, 42 Pa.C.S.A. The judgment may only be granted in cases that are clear and free from doubt. Szabo v. Bryn Mawr Hospital, 432 Pa.Super. 409, 412, 638 A.2d 1004, 1006 (1994). A reviewing court must examine the record in the light most favorable to the non-moving party, accepting as true all well-pleaded facts and giving that party the benefit of all reasonable inferences drawn from those facts. Id. We may 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, 318, 549 A.2d 1311, 1313 (1988). Accord Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).

To state a prima facie cause of action for malpractice, a plaintiff must establish that (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Moreover, we require that an expert witness testify “to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Id. at 62, 584 A.2d at 892 (emphasis added).

The decision to permit a witness to testify as an expert rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Montgomery v. South Philadelphia Medical Group, Inc., 441 Pa.Super. 146, 151-53, 656 A.2d 1385, 1388 (1995). Pursuant to Pennsylvania’s liberal standard, witnesses may testify as experts if they possess knowledge outside the ordinary reach and offer testimony that could assist the trier of fact. Id. “To qualify as an expert, a witness need not possess all of the knowledge on a subject; rather, the witness should have a reasonable pretension to specialized knowledge.” Id. The weight to be assigned to expert testimony lies within the province of the jury. Id.

Neither party to this action challenges the competency of Nurse Stephan to provide expert testimony regarding the first element of a prima facie malpractice case, ie., the applicable standard of care. “If a duly qualified practical nurse is permitted by law to do certain acts, and she has in fact done those acts or is familiar with them, there is no reason why she could not testify as an expert witness as to those acts.” Taylor v. Spencer Hospital, 222 Pa.Super. 17, 26, 292 A.2d 449, 453 (1972). Similarly, both parties acknowledge Nurse Stephan’s competency to identify breaches of that standard allegedly committed by the nursing staff at John F. Kennedy Hospital: “It is my expert nursing opinion that the care rendered to the plaintiff Stephen Flanagan during the period of December 2,1991 through December 4,1991 ... was below the standard of reasonable nursing care which should have been delivered to a patient with his complaints, medical diagnosis, and use of chest tubes.” Nevertheless, the parties contest the competency of Nurse Stephan to testify as to the remaining elements of causation and damage.

In Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 399, 592 A.2d 720, 723 (1991), appeal denied, 529 Pa. 644, 602 A.2d 855 (1992), we noted the professional qualifications and specialized training possessed by a registered nurse and deemed the nurse qualified to testify as to the standard of care necessary in the administration of an intramuscular injection. Id. The nurse testified

to a reasonable degree of certainty, “[i]f proper technique is used, you should not hit the radial nerve.” This testimony, although not specific, was sufficient, together with [the patient’s] testimony, to require the issue of negligence to be submitted to the jury. From such evidence, the jury could infer that an injection which caused an immediate 'wrist drop had been negligently given.

Id. Nevertheless, to prove that the injury, ie., the wrist drop, had been legally caused by the injection, the complainant was constrained to rely on the expert testimony of several physicians. Id.

In the instant case, however, Nurse Stephen was the lone proffered expert on the issues of legal causation and diagnosis. Specifically, if allowed, Nurse Stephan would have provided the following testimony:

In summation, it is my nursing expert opinion, to a reasonable degree of nursing certainty, that all of the nurses ... did not meet the standard of nursing care with respect to their nursing care of Stephen Flanagan and as such were a substantial contributing factor in his progressively worsening subcutaneous emphysema.
[I]t is Ms. Stephan’s opinion, to a reasonable degree of medical certainty that, had the JFK nurses promptly assessed and recognized Stephen Flanagan’s early signs and symptoms of subcutaneous emphysema, the patient’s subcutaneous emphysema could have been managed ... thereby averting both the exacerbation of the patient’s subcutaneous emphysema and the intensification of care necessitated as a result of that exacerbation.

Reports of Nurse Stephan dated July 26, 1993 and June 20, 1994 (emphasis added). Although we commend Nurse Stephan’s professional accomplishments, we are not convinced that a nurse may properly testify “to a reasonable degree of medical certainty” on the issues of legal causation and diagnosis in a medical malpractice action.

Appellant stresses that “[e]xperts in one area of medicine have been deemed qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist had experience in a related medical field.” McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 612, 533 A.2d 436, 442 (1987), appeal denied, 520 Pa. 589, 551 A.2d 215 (1988) and 520 Pa. 589, 551 A.2d 216 (1988). The majority of the cases cited by appellant address the ability of one medical doctor to critique the performance of another. See e.g., Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 510, 559 A.2d 550, 553 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1990) and 527 Pa. 635, 592 A.2d 1302 (1990) (ruling that a licensed physician, board certified in neurology and trained in otolaryngology, possessed sufficient skill, knowledge and expertise such that his opinion would aid the jury in resolving a medical malpractice action filed against a throat specialist); McDaniel, supra, (board certified specialist in both internal medicine and infectious diseases was qualified to express an opinion regarding the cause of decedent’s hemolytic anemia and death even though the physician was not also a hematologist); Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985) (urologist qualified to evaluate surgeon’s performance in hysterectomy when urologist was familiar with and had assisted in the performance of other hysterectomies). But see Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 43, 485 A.2d 408, 419 (1984), appeal denied, 508 Pa. 643, 500 A.2d 428 (1985) (noting that although a witness’s experience and education may embrace the subject in question in a general way, the subject may be so specialized that the witness will not be qualified to testify. “Thus, every doctor has a general knowledge of the human body. But an ophthalmologist, for example, is not qualified to testify concerning the causes and treatment of heart disease”). Appellant has not provided, nor have we been able to uncover any binding precedent authorizing a nurse to express an expert opinion regarding either medical causation or diagnosis.

Although our courts have permitted non-medical practitioners to testify within their specialties, the scope of this testimony has not been expansive. In Simmons v. Mullen, 231 Pa.Super. 199, 208-10, 331 A.2d 892, 898 (1974), for example, a clinical psychologist was deemed competent to render expert' testimony as to organic brain disturbances. Id. Nevertheless, the non-medical practitioner was not qualified to testify as to causation. Id. at 212, 331 A.2d at 899-900. See also Pratt v. Stein, 298 Pa.Super. 92, 153, 444 A.2d 674, 706 (1982) (a professor of pharmacology, i.e., the study of medications and their origin, nature, properties and effect on living organisms, was qualified to testify regarding the toxic nature of a drug proscribed by a doctor, the existence of alternate medications and the standard of care to be followed in dosage).

Our Supreme Court has recently held that a medical degree is not a prerequisite to the admission of expert testimony as to time of death. Miller v. Brass Rail Tavern, 541 Pa. 474, 483, 664 A.2d 525, 529 (1995). “[A] mortician of twenty seven years, duly licensed by this Commonwealth, who has also served in the dual capacity as county coroner for fifteen years, may have specialized knowledge regarding the time of death which would not otherwise be known to a lay individual.” Id. In Miller, the appellant proved by a preponderance of the evidence that the Brass Rail Tavern had served decedent alcohol while decedent was visibly intoxicated. The appellant sought to establish a causal link between the negligence of the tavern in serving decedent and the fatal automobile accident. Accordingly, the appellant needed to prove that the time of death was sufficiently close to the time decedent was negligently served. To that end, the appellant relied on the proposed expert opinion of a lay coroner. Id. at 478, 664 A.2d at 527.

As an arm of the prosecution, a coroner is particularly suited to provide such testimony. See generally Commonwealth v. Anderson, 253 Pa.Super. 334, 346-47, 385 A.2d 365, 371-72 (1978) (en banc) (“[A] coroner in Pennsylvania has powers which in fact make him part of the Commonwealth’s criminal investigation team”). Specifically, a coroner is authorized by statute to conduct an “investigation ... to determine the cause of any such death and to determine whether or not there is sufficient reason for the coroner to believe that any such death may have resulted from criminal acts or criminal neglect of persons other than the deceased.” 16 P.S. § 1237(b). To properly carry out his duties and assess whether the death resulted from the tavern’s negligence, the coroner in Miller was therefore required to ascertain the time of death.

To the contrary, the legislature statutorily forbade Nurse Stephan from formulating medical diagnoses. Nevertheless, according to proposed testimony, she attributed the patient’s “progressively worsening subcutaneous emphysema” to the hospital staffs deviation from the appropriate standard of care between December 2, 1991 and December 4, 1991. The patient was not diagnosed by a physician with subcutaneous emphysema, however, until December 4,1991. Accordingly, her opinion is premised on her own unsupported medical diagnosis. Pennsylvania Nursing Law expressly stipulates that

[t]he “Practice of Professional Nursing” means diagnosing and treating human responses to actual or potential health problems through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well being, and executing medical regimens as prescribed by a licensed physician or dentist. The foregoing shall not be deemed to include the acts of medical diagnosis or prescription of medical therapeutic or corrective measures....

63 P.S. § 212(1) (emphasis added). The statute confers no authority to practice medicine. Id. § 214. Accordingly, appellant’s proffered expert was not authorized to formulate medical diagnoses and was therefore not competent to provide a jury with such formulations.

Based on the foregoing, we find that the Court’s recent pronouncement in Miller, supra, does not govern our resolution- of the instant case. The testimony of a lay coroner-regarding time of death is qualitatively different from the testimony of a nurse as to medical diagnosis and causation. See Commonwealth v. Smith, 480 Pa. 524, 532, 391 A.2d 1009, 1013 (1978) (report of a lay coroner which did not contain medical opinions, but merely facts observed by the coroner dhring external and internal examinations could form a basis from which a doctor, in combination with an independent examination, could draw conclusions with a reasonable degree of medical certainty as to cause of death). We conclude, therefore, that the lower court properly precluded Audrey Stephan, Ed.D., R.N. from providing expert testimony regarding these specific issues. Absent competent expert testimony, appellant was unable to state a prima facie case of medical negligence. Consequently, appellant’s evidence of malpractice was insufficient to require submission of the case to a jury and summary judgment was properly granted.

Order affirmed.

      . The certified record discloses that Audrey Stephan has earned a Bachelor of Science degree in nursing, a Master of Science degree in nursing education, and a doctoral degree in education. Moreover, she has taught cardiovascular and respiratory nursing and has garnered substantial experience caring for chest tube patients in the hospital setting.

      . Pursuant to statute,
      (a) The coroner having a view of the body shall investigate the facts and circumstances concerning deaths ... for the purpose of determining whether or not an autopsy should be conducted or an inquest thereof should be had, in the following cases:
      (2) deaths occurring under suspicious circumstances, including those where alcohol, drugs or other toxic substances may have had a direct bearing on the outcome;
      (3) deaths occurring as a result of violence or trauma, whether apparently homicidal, suicidal or accidental....
      16 P.S. § 1237(a).

      . See 63 P.S. § 212 (discussed infra).


author: CIRILLO, Judge:

text:
    666 A.2d 338
    COMMONWEALTH of Pennsylvania v. Mark M. RISTAU, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1995.
    Filed Oct. 20, 1995.

      Ross McKeirnan, Warren, for appellant.
    Steven J. Gilford, Assistant District Attorney, Tionesta, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   CIRILLO, Judge:

Mark Ristau appeals from the order entered in the Court of Common Pleas, of Warren County finding him guilty of various summary offenses and directing the payment of costs and fines. We affirm the oral sentence imposed by the trial judge on August 4, 1992, and vacate the December 13, 1994 order reiterating and partially modifying the fines previously imposed.

Ristau was involved in an automobile accident on Route 62 in Warren County, Pennsylvania on February 9, 1992. Shortly thereafter, Ristau was charged with violating the following provisions of the Vehicle Code: driving on the right side of the road, 75 Pa.C.S.A. § 3301(a); leaving the scene of accident, 75 Pa.C.S.A. § 3743; duty to render aid, 75 Pa.C.S.A. § 3744(a); and immediate notice of accident to police department, 75 Pa.C.S.A. § 3746(a)(2). Ristau was found guilty of all four charges by a district justice. He was directed to pay a total of $541.00 in fines and $22.50 in costs. Ristau subsequently filed an appeal de novo to the trial court.

Judge James B. Dwyer, in a bench trial, heard the appeal on August 4, 1992. The record reflects that, at the conclusion of the testimony and oral argument, the court orally imposed a finding of guilt for Ristau’s violations of section 3301 (driving on the right side of the road), section 3743 (leaving the scene of accident) and section 3746(a)(2) (immediate notice of accident to police department), and found him not guilty of section 3744(a) (duty to render aid).

The transcript also reflects that Judge Dwyer imposed a sentence from the bench. In his oral sentence, Judge Dwyer sustained the fines and costs imposed by the district justice for sections 3301 and 3746(a)(2), and imposed the following for section 3743: “I don’t know what the fine or cost levied by the district justice was but after finding the defendant guilty here, I assess a fine of $150 and the cost of that case. If the district justice assessed more than that, he shall refund. If he has not, I levied that much of a fine and the defendant will have to make it up.” It was not, however, until December 16, 1994, that a written order and opinion were filed by the trial court. This December 16th order mirrors the previous finding of guilt for three of the four offenses. Additionally, the order imposed sentence, reiterating those sentences originally (orally) imposed, with the exception of section 3743, for which Ristau was given a costlier fine, specifically, a fine of $300.00. This appeal followed.

Ristau raises one issue for our consideration:

Whether any action may be taken pursuant to a summary offense violation under Title 75 more than two years after the commission of the offense where the accused did nothing to cause delay in the case?

Section 5553(e) of the Pennsylvania Judicial Code provides as follows:

§ 5553. Summary Offenses Involving Vehicles
******
(e) Disposition of proceedings within two years. — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.

42 Pa.C.S.A. § 5553(e) (Purdon’s Supp.1990). There is no question that the trial court’s order and opinion were entered more than' two years after the expiration of the statute of limitations (which would have commenced February 25, 1992). The language of section 5553(e) was interpreted by this court in Commonwealth v. Jannenga, 335 Pa.Super. 77, 483 A.2d 963 (1984), overruled in part by Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991). “Subsection (e) is susceptible [to] no other interpretation than that any summary proceedings initiated under Title 75 must be disposed of at the trial level within two years or not at all.” Jannenga, 335 Pa.Super. at 81, 483 A.2d at 965. The court also pointed out that the appellant, who was not sentenced within the two years after the commission of his offense, in no way caused the delay in his sentencing. Id. See also Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988), overruled in part by Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991) (following Jannenga, court held that failure to take action on defendant’s post-trial motions and impose sentence within two years of offense required dismissal of action pursuant to section 5553(e)). Subsequently, in Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991) (en banc), appeal denied, 529 Pa. 619, 600 A.2d 535 (1991), this court both distinguished Jannenga and Markley and narrowed their scope, holding that “any period of delay directly attributable to the accused tolls the limitation period of § 5553(e).” Id. at 490, 592 A.2d at 1317.

The law having been stated, we must first determine at what point the finding of guilt and sentence in the instant case occurred. The Commonwealth asserts that Ristau was found guilty and sentenced when the trial court rendered such determinations orally in open court following argument. If we accept this interpretation, Ristau was convicted and sentenced well within the two year statute of limitations. Contrary to the Commonwealth’s contention, Ristau claims that an appeal-able order was not imposed until the entry of the written order, which was filed well beyond the two year statute.

We accept the Commonwealth’s invitation to look to the trial court’s oral disposition as the point at which Ristau was convicted and sentenced. The finding of guilt and imposition of sentence is clearly set forth in the transcript of Ristau’s bench trial. “Sentence” may be defined as:

The judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, awarding the punishment to be inflicted. Judgment formally declaring to accused legal consequences of guilt which he has confessed or of which he has been convicted. The word is properly confined to this meaning.

Commonwealth v. Giaccio, 415 Pa. 139, 144 n. 4, 202 A.2d 55, 58 n. 4 (1964), rev’d on other grounds, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), (quoting Black’s Law Dictionary 1528 (4th ed. 1951)).

Ristau does not allege that he was unaware that a sentence had been imposed against him, nor does he allege that he was not apprised of his appellate rights. The issue, rather, has been narrowly framed to question whether the trial court failed to complete the proceedings against Ristau within two years of the commission of the offense pursuant to 42 Pa.C.S.A. § 5553(e). Unlike the circumstances set forth in Jannenga and Markley, the trial court in the instant case did not defer or delay sentencing until such a time that it could no longer do so under section 5553(e). Here, there was simply no delay; the trial court orally imposed sentence immediately after Ristau’s bench trial.

As we bestow our validation to the oral sentence, we recognize that the December 16, 1994 written order, which was entered beyond the two year limit, must be vacated. That order, in effect, proposes to increase the penalty on the section 3743 offense. This will not be permitted; the original sentence must stand. The trial court cannot take action to modify a sentence more than two years after the commission of the offense. This action not only violates the spirit of section 5553(e), it also exceeds the trial court’s power; once the 30-day period for altering or modifying sentence is over, the trial court loses power to alter its orders. Commonwealth v. Quinlan, 433 Pa.Super. 111, 115-16, 639 A.2d 1235, 1238 (1994), appeal granted, 540 Pa. 648, 659 A.2d 986 (1995); Commonwealth v. Fleming, 332 Pa.Super. 118, 136-37, 480 A.2d 1214, 1224 (1984); see 42 Pa.C.S.A. § 5505 (court may modify any order within 30 days of entry). We have consistently held that the trial court lacks jurisdiction to modify a sentence once the thirty day period for filing an appeal has elapsed. Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). See id (court had no authority to modify defendant’s sentence, by making it consecutive, five months after it was originally entered); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984) (amended sentence imposed more than 30 days after sentencing and after appeal had been filed, requiring participation in a drug program as a condition of probation or parole, was unlawful and a nullity); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982) (trial court’s attempt to modify sentence more than 30 days after imposition of original sentence was a nullity). We affirm the oral sentence imposed on August 4, 1992, and vacate the December 13, 1994 written order, which served to increase the penalty originally imposed on August 4, 1992.

Oral sentence affirmed. Order vacated. Jurisdiction relinquished.

      . The order reads:
      AND NOW, this 13th day of December, 1994, the Court finds the Defendant guilty of violating Sections 3746(A)(2), Section 3301(A), and Section 3743(A) of the Pennsylvania [Vehicle] Code and orders the payment of the costs and finés as set by the District Justice.
      Concerning Section 3744(A) of the Pennsylvania Vehicle Code, the Court finds the Defendant not guilty, and orders that any fine and costs levied by the District Justice on that charge be returned to Defendant.
      In the opinion accompanying this order, the trial court stated: "At the trial, the hearing judge attempted to reduce the fine levied by the district justice in the case at Section 3743(A). Since the fine levied on this charge by the district justice was the statutory fine called for by the statute, the trial judge was in error and reinstated the statutory fine of $300.” We note that 75 Pa.C.S.A. § 3743 provides: "Any person violating this section is guihy of a summary offense, punishable by a fine of $300 or imprisonment for not more than 90 days, or both.”

      . In distinguishing Jannenga and Markley, the court in Quinn noted that Quinn was solely responsible for a delay of five months in the proceedings due to a failure to file a timely appeal to the trial court. In holding that any delay attributable to the accused tolls the limitation period, this court in Quinn stated, "to the extent that either Jannenga or Markley could be argued to stand for a contrary interpretation, they are overruled.” Quinn, 405 Pa.Super. at 487, 592 A.2d at 1317.

      . We note that this case is distinguishable from the line of cases implicating double jeopardy, deciding that; a trial judge's oral statements not incorporated into the written and signed judgment of sentence are not part of the judgment of sentence, and an oral pronouncement of sentence does not constitute an “imposed sentence” for double jeopardy purposes. See, e.g., Quinlan, infra; Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990); Commonwealth v. Unger, 315 Pa.Super. 408, 462 A.2d 259 (1983); Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977); Commonwealth v. Foster, 229 Pa.Super. 269, 324 A.2d 538 (1974).