author: CIRILLO, Judge:

text:
    641 A.2d 610
    Evelyn Wright BROWN, Appellant, v. R. Ray BROWN.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed May 17, 1994.

      David Gray, King of Prussia, for appellant.
    Catherine H. Voit, West Chester, for appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

Appellant Evelyn Wright Brown appeals from an order of the Court of Common Pleas of Chester County denying her request to set aside a post-nuptial property settlement agreement entered into by Mrs. Brown and appellee R. Ray Brown. We quash.

Evelyn and R. Ray Brown were married in 1967 and divorced in 1974. In 1976, they remarried. On July 30, 1990, Mr. and Mrs. Brown executed a post-nuptial agreement. Mrs. Brown did not retain independent counsel, despite being advised to do so by Edward N. Flail, Jr., Esquire, the attorney who drafted the post-nuptial agreement. On July 2,1991, Mr. and Mrs. Brown divorced for a second time. The post-nuptial agreement was incorporated by reference into the July 2,1991 divorce decree. No appeal was taken from the final decree.

Ten months later, on May 11, 1992, Mrs. Brown filed a petition to vacate and nullify the post-nuptial agreement. See 23 Pa.C.S. § 3332. After various amendments and answers to that petition, a hearing was held before the Honorable Alexander Endy. On June 25, 1993, Judge Endy entered an order denying Mrs. Brown’s petition. On July 6, 1993, Mrs. Brown filed post-trial motions. See Pa.R.C.P.1920.52(a)(2). On September 30, 1993, Judge Endy entered an order denying post-trial motions. Mrs. Brown filed her appeal on October 15, 1993, challenging the validity of the post-nuptial agreement. Mrs. Brown’s appeal was untimely; therefore, this court has no jurisdiction to hear this appeal. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) (questions of jurisdiction may be raised sua sponte by the appellate court).

Mrs. Brown did not appeal from the final divorce decree, which had incorporated the post-nuptial agreement. Instead, she filed a petition to vacate the decree ten months after the decree was entered. Generally, an untimely appeal divests this court of jurisdiction. See Pa.R.A.P. 903(a). Section 3332 of the Domestic Relations Code, however, allows a challenge to the final order past the thirty day period if certain circumstances are present.

Notwithstanding the fact that Mrs. Brown filed her petition to vacate within the statutory five year period, her procedural steps thereafter were improper. Rather than appealing from the trial court’s June 25, 1993 order denying the petition to vacate, Mrs. Brown filed post-trial motions. This was improper. The court’s order denying the petition was a final order, and the appeal lies from that order. On October 15, 1993, Mrs. Brown filed her appeal from the order denying post-trial motions. Her appeal, therefore, was untimely. See Pa.R.A.P. 903(a).

Prior to this court’s decision in Flowers v. Flowers, 417 Pa.Super. 528, 612 A.2d 1064 (1992), the law provided no procedural guidance on this issue. In Flowers we stated:

The instant case presents a further procedural difficulty in that this court has not previously decided whether it is proper to appeal immediately from an order denying a petition to open or vacate a divorce decree, or whether it is necessary first to file exceptions or post-trial motions. Unfortunately, there is no rule of civil or appellate procedure which mandates the proper action following the trial court’s denial of a petition to open or vacate a divorce decree.

Id. at 531, 612 A.2d at 1065-66.

Deciding not to complicate further “the procedural hurdles facing an aggrieved party in a divorce action[,]” the court refused to force that party “to engage in the equivalent of post-trial practice after the denial of a motion to open or vacate a divorce decree.” Id. at 531, 612 A.2d at 1066.

Chronologically, Mrs. Brown did not have the benefit of the September 8, 1992 Flowers decision when she filed her petition to vacate on May 11, 1992; however, the petition to vacate was denied on June 25, 1993, nine months after Flowers was decided. We find, therefore, that this case is controlled by Flowers. Accordingly, we quash this appeal.

Appeal quashed.

      . Section 3332 provides in relevant part:
      § 3332. Opening or vacating decrees
      A motion to ... vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the facts of the record must be made within five years after entry of the final decree____ [Ejxtrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the evidence.
      23 Pa.C.S. § 3332.


source: Caselaw Access Project

author: DEL SOLE, Judge: TAMILIA, Judge,

license: Public Domain

text:
    641 A.2d 612
    Merlin A. BLACKBURN and Eva P. Blackburn, His Wife, Appellants, v. SHARLOCK, REPCHECK, ENGEL AND MAHLER, Appellee. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1993.
    Filed May 18, 1994.

      Louis M. Tarasí, Jr., Pittsburgh, for appellants.
    Richard S. Dorfzaun, Pittsburgh, for appellees.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge:

This lawsuit was begun in Allegheny County by Praecipe on August 18, 1983. Following an unsuccessful attempt of service, the Writ was reissued on September 22, 1983 and served September 29th. The Complaint was filed on January 30, 1989, but it did not contain a certification of service. An Amended Complaint was filed March 1,1989 which did contain that certification. By stipulation filed July 21, 1989 the parties agreed to transfer the case to Jefferson County, reserving the right to seek dismissal for failing to prosecute.

After the transfer, a Petition for Rule to Show Cause Why Action Should not be Dismissed and Entry of a Judgment of Non Pros were filed and on December 29, 1989 the Rule was issued returnable in 30 days. Next Defendants’ Answer and New Matter was filed on January 2, 1990, and Plaintiffs’ Response to the Petition for Rule to Show Cause was filed February 20, 1990. Various pleadings and discovery requests were filed, including a Motion for In-camera Inspection of the defendants’ insurer’s file on the basis the review was necessary to rebut allegations supporting the request for a non pros. Also, the Defendants sought Summary Judgment on June 11, 1991. This request was denied on August 23, 1991.

A March 17, 1992 Stipulation of Counsel permitted the review of the defendants’ insurer’s file. This stipulation contemplated that the court would, following the inspection, rule on the non pros request. On August 4, 1992 the defendants sought to have the Rule made Absolute and non pros entered, which was done on October 1, 1992. Following an appeal, this court quashed, requiring counsel to proceed in the trial court for removal of the non pros as required by Pa.R.C.P. 3051. Subsequently the trial court refused to remove the non pros leading to this appeal. This statement setting forth the record is necessary to understand the nature of the Appellants’ arguments and the basis for our determination.

Essentially, Appellants raise three issues:

1. The delay in filing a complaint was due to their belief that the defendants, their prior counsel, wished to settle the matter which led them to believe no complaint was necessary.
2. That by undertaking a defense after filing the Motion for a non pros, the defendants waived the right to seek that relief.
3. The delay in filing the complaint was less than five years and the subsequent decision of the Supreme Court in Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992) should not be retroactively applied to decide a motion filed in 1989.

Before beginning our analysis, it is appropriate to repeat the standard of review an appellate court must exercise when examining a trial court’s grant of a non pros. This standard is set forth in Gallagher v. Jewish Hospital Assn., 425 Pa. 112, at 113, 228 A.2d 732, at 733 (1967) where the court stated:

It is well settled law that the question'of granting a non pros because of the failure of the plaintiff to prosecute hisv action within a reasonable time f ests within the discretion of the lower Court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof.

Applying that standard, we now begin our review of the issues raised. Appellants’ belief that the case would be settled is not sufficient to excuse their failure to file a complaint between 1983 and 1989. Although it is true that the defendants were formerly attorneys for Appellants, the filing of the lawsuit created an adversarial situation. Appellants were now represented by new counsel and cannot claim the prior attorney-client relationship prevented them from acting. Nor can they suggest, as they do, that the defendants owed them some undefined duty because of the prior representation. This new litigation establishes the relationship between the parties, not the prior representation. Further, while courts have traditionally fostered efforts of parties to negotiate and resolve matters, a claim of ongoing negotiations will not excuse delay in prosecuting an action. See Pennridge Elec. v. Souderton School, 419 Pa.Super. 201, 615 A.2d 95 (1992).

Nor are we persuaded that the defendants, by undertaking a defense, acted in a way inconsistent with their request for a non pros. They were required to answer the complaint even though the Rule had been issued. Most importantly, the parties knew throughout the litigation that the non pros was being actively sought. The transfer stipulation, the attempted discovery of the defendant’s insurers file, and the stipulation for in-camera inspection all focused on and were part of this process. We cannot, nor would we, say that, given this activity on record, the trial judge abused his discretion in concluding that the defendants had not waived the right to seek a non pros.

Finally, the Appellants claim that there was no showing of actual prejudice and the trial court erred in applying the Penn Piping, standard. We disagree. In Penn, there was an unexplained delay of four years. The Supreme Court held that where delay is two years or more, prejudice need not be established by the moving party and a court does not abuse its discretion if it enters a non pros. This is in keeping with the Court’s policy, as expressed in Pa.R.J.A. 1901 which permits local courts to establish procedures for the automatic dismissal of cases where there has been no docket activity for two years. Since the ruling in Penn Piping, was applied to the case in which it was announced and not limited to prospective application, the distinguished trial judge, Edwin J. Snyder, was correct in applying that precedent to a case pending.

Affirmed. Jurisdiction relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent. I believe the forbearance in filing a complaint was occasioned by appellees’ request to engage in a settlement process in order to avoid damage to its reputation. This appeared to be the understanding of the parties as confirmed by the conduct of appellees following an attempt by present appellate counsel to move the litigation forward. It was later in the process when appellees decided to file a motion for non pros. I would find that period from the onset of the action by praecipe to the time new counsel filed the complaint to be waived for purposes of applying Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992). The period following the filing of the complaint involved legitimate pretrial skirmishing and should not reflect on appellants’ timeliness in pursuing their action.

The existence of a patently substantial justiciable issue which will be forfeited due to an induced delay by appellees is something the rule was not intended to permit. Any failure of appellants to proceed was matched to a greater degree by appellees’ posture of conciliation and negotiation. Whether or not Penn Piping may be applied retroactively is not relevant here where prejudice cannot be presumed by the delay when the party who claims prejudice produced the delay.

I would reverse and remand for trial.


author: SAYLOR, Judge:

text:
    641 A.2d 615
    Greg LIBERTY, a Minor, by his Parent and Natural Guardian, Ralph W. LIBERTY, and Ralph W. Liberty, in his own Right, Appellees, v. ADVENTURE SHOPS, INC., Individually and t/a Halloween Adventures, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1994.
    Filed May 20, 1994.

      Paul J. Downey, Philadelphia, for appellant.
    Charles J. Schleifer, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

This is an appeal from an order entering judgment in favor of the plaintiff in an action brought against an employer for injuries suffered during the course of employment. We affirm.

The facts in this case are undisputed. Appellee, Greg Liberty, was a high school student at the time he began working part time for Appellant, Adventure Shops, Inc., t/a Halloween Adventure. Adventure Shops is in the business of “temporary stores” and executes leases with various malls on a space available basis for a limited duration, selling Halloween paraphernalia and then closing several days following Halloween. Liberty was employed at Adventure Shops’ Oxford Valley Mall location. On September 18, 1991, Liberty was engaged in the pre-opening decoration of the store and was cutting a Styrofoam block with a razor blade in a holder when he inadvertently cut his hand, between his thumb and first finger, sustaining severe damage to his hand.

When Liberty’s inquiries into the availability of Workmen’s Compensation insurance proved futile, he obtained counsel and initiated a tort action against Adventure Shops in the Court of Common Pleas of Philadelphia County, alleging that Adventure Shops was negligent and had failed to maintain Workmen’s Compensation insurance. Adventure Shops failed to answer the complaint, and a default judgment was taken by Liberty.

The matter proceeded to arbitration for the assessment of damages, at which time an award was entered in favor of Liberty. Adventure Shops appealed the award and moved to dismiss for lack of jurisdiction, based on the fact that the Bureau of Workmen’s Compensation had not participated in determining the non-insured status of Adventure Shops. Adventure Shops did not dispute the fact that it had no Workmen’s Compensation insurance, but rather contended that Liberty was required to notify the Bureau of Workmen’s Compensation and obtain from it a formal declaration that Adventure Shops was uninsured before suit could be instituted in the Common Pleas Court. The trial court denied the motion to dismiss.

Following a non-jury trial de novo, the trial court entered a verdict in favor of Liberty in the amount of $30,078.80, which was later molded to include delay damages pursuant to Pa. R.C.P. 238. Adventure filed post-trial motions which were denied, and this appeal followed.

Adventure Shops argues that an injured employee may not institute suit in Common Pleas Court based on the conclusion that his employer is uninsured, but rather must first notify the Bureau of Workmen’s Compensation to solicit its participation and to obtain a formal declaration regarding the employer’s insured status, pursuant to Section 305 of the Workmen’s Compensation Act, 77 P.S. § 501.

Thus, Adventure Shops questions the trial court’s original jurisdiction over this case, claiming that as a prerequisite to bringing suit, a plaintiff whose employer is uninsured must obtain a certificate of non-insurance from the Workmen’s Compensation Rating and Inspection Bureau. The section of the The Workmen’s Compensation Act cited by Adventure Shops provides:

In any proceeding against an employer under this section, a certificate of non-insurance issued by the official Workmen’s Compensation Rating and Inspection Bureau and a certificate of the department showing that the defendant has not been exempted from obtaining insurance under this section, shall be prima facie evidence of the facts therein stated.

77 P.S. § 501.

Initially, we note that the section cited by Adventure Shops describes a proceeding brought against an employer by the Department of Labor and Industry for failure to maintain insurance as required by the Act, and does not refer to an action brought against an employer by an injured employee. Therefore, Adventure Shops has applied this section out of context, rendering its argument concerning this section inapplicable to this case. Furthermore, the section provides, in a later paragraph:

When any employer fails to secure the payment of compensation under this act ..., the injured employee or his dependents may proceed either under this act or in a suit for damages at law as provided by article II.

Id. (emphasis supplied).

Thus, where an employee is injured in the scope of employment and the employer has not provided workers’ compensation coverage, Section 305 of the Workmen’s Compensation Act offers the employee an election either to proceed under the Act and accept its compensation schedules or to secure relief outside the Act by an action at law for damages against his employer. Harleysville Insurance Company v. Wozniak, 347 Pa.Super. 356, 500 A.2d 872 (1985).

In this case, Liberty elected to pursue an action at law against Adventure Shops, as he was permitted to do under the Act. There is simply no merit to Adventure Shops’ contention that Liberty was required to produce a certificate of non-insurance before being permitted to bring suit in Common Pleas Court. Not only is such production not required of an employee, but in this case, Adventure Shops admitted the fact that it had failed to maintain Worker’s Compensation insurance when it failed to answer Liberty’s complaint which contained allegations of non-insurance. Accordingly, the order entering judgment in favor of Liberty is affirmed.

Order affirmed.


author: ROWLEY, President Judge:

text:
    641 A.2d 617
    COMMONWEALTH of Pennsylvania v. Gary L. ROSE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 6, 1994.
    Filed May 20, 1994.

      Stephen C. Smith, Lock Haven, for appellant.
    Donna L. Rae, Asst. Dist. Atty., Lock Haven, for Com., appellee.
    Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.
   ROWLEY, President Judge:

Gary L. Rose, (hereinafter “appellant”) appeals from his judgment of sentence contending that the trial court abused its discretion by imposing an “inappropriate” and “clearly unreasonable” sentence without taking into consideration the fact that appellant’s deed “was a very minimal infraction of the law.” We conclude that appellant has not raised a substantial question as to the propriety of his sentence, and we therefore deny him permission to appeal.

The facts underlying this appeal are very few. On January 5, 1993, appellant entered a floral and gift store in Lock Haven, Pennsylvania, known as the “Goose & Gander.” Once in the store, he retrieved a bottle of perfume from a store shelf and took it to the counter area, where he presented it to the cashier and requested a cash refund. Although he did not have a receipt for the perfume, he was given $20.67 in cash as a refund for the “return.” After appellant left the store, the owner of the store filed a complaint with the police against appellant, averring that another employee, Cathy Clinefelter, had seen him take the bottle of perfume off the shelf and then present it for a cash refund.

On January 31, 1993, appellant was charged with Theft by Deception. After a preliminary hearing, the matter was held for court, and on July 23, 1993, appellant pled no contest to the pending charge. At the time of the plea, the Commonwealth recommended a minimum sentence of no greater than three (3) months incarceration. On October 1, 1993, the sentencing court imposed the following sentence upon appellant:

“1. Defendant [to] pay the costs of prosecution in the amount of $149.00, a fíne in the amount of $100[.00], and make restitution in the amount of $20.00.
2. Defendant [to] undergo imprisonment in the Clinton County Prison for a definite term, the minimum of which shall be three months, the maximum of which shall be twelve months.”

(Sentencing Transcript, 10/1/93, p. 8). Appellant filed a timely motion to modify his sentence, which was denied by the trial court, after which appellant brought the present appeal.

The only issue presented for our consideration implicates the discretionary aspects of appellant’s sentence. We note that in cases such as this, “... there is no right to appeal to this Court and appellant’s appeal must be considered as a petition for permission to appeal.” Commonwealth v. Kopp, 405 Pa.Super. 110, 117-118, 591 A.2d 1122, 1126 (1991), citing, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As this Court, sitting en banc, reiterated in Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992):

“In such a case, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), [appeal] denied, 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). ‘Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.’ 42 Pa.C.S.A. § 9781(b), referring to Chapter 97 (Sentencing). The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis; the court will be inclined to allow appeal where the appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990).”

Jones, supra, 418 Pa.Super. at 99-100, 613 A.2d at 590.

In his Rule 2119(f) statement, appellant flatly asserts that his sentence “flies in the face of fairness” because “[he] was given a sentence of three (3) months [incarceration] for the theft by deception of a $20.00 bottle of perfume.” We decide that this contention fails to raise a substantial question. In so concluding, we refer to Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990), where this Court held that an argument concerning the weight that a sentencing court gives to legitimate sentencing factors (such as the facts and circumstances of the crime itself) does not raise a substantial question within the meaning of 42 Pa.C.S.A. § 9781(b). Because appellant has not advanced a colorable claim that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to the fundamental norms underlying the sentencing process, we are unable to review the merits of appellant’s appeal.

Permission for allowance of appeal denied, and judgment of sentence affirmed.

      . We note, however) that the trial court gave an extremely detailed statement of the reasons for its sentence, after having recited the guideline ranges applicable to this case, and after having been fully informed by a pre-sentence report. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).


author: WIEAND, Judge.

text:
    641 A.2d 1167
    Joseph MESSA and Tina Messa, Appellants, v. STATE FARM INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1994.
    Filed May 6, 1994.

      Thomas F. Sacchetta, Media, for appellants.
    Gerald F. McCormick, Wayne, for appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   WIEAND, Judge.

The issue in this appeal is whether a court can properly dismiss a petition to compel arbitration where the court determines that the disputed claim to be arbitrated is barred by a statute of limitations.

Tina Messa was injured when, on April 5, 1987, the vehicle which she was driving collided with a vehicle owned by the United States Government, Department of the Army, and operated by Wei Chang. In October, 1987, the Department of the Army notified Messa that the Government would not “provide a defense for or insure the interests of Mr. Wei Chang.” On November 2, 1987, Messa notified her carrier, State Farm Insurance Company, that she and her husband intended to pursue a claim under the uninsured motorist provisions of the policy. This claim was denied by State Farm on or about February 1, 1988. In July, 1989, State Farm filed a petition for a declaratory judgment that the Messa claim was precluded by a policy exclusion pertaining to government owned vehicles. This action was not actively pursued, however, and was subsequently dismissed for inactivity pursuant to local rule.

On February 11, 1993, Joseph and Tina Messa filed a petition requesting the court to enforce an arbitration agreement in the State Farm policy by appointing a defense arbitrator. State Farm filed an answer in which it alleged, inter alia, that a claim for uninsured motorist benefits was barred by the four year statute of limitations appearing at 75 Pa.C.S. § 1721. Subsequently, the trial court dismissed the petition for the appointment of an arbitrator, holding that the underlying claim was time barred. A petition for reconsideration was granted, but after such reconsideration, the trial court again dismissed the petition. The claimants appealed.

Appellee argued in the trial court and now argues on appeal that the four year statute of limitations began to run when plaintiffs became aware, in October, 1987, that coverage for the Chang car would not be provided by the United States Government. Therefore, an action commenced on February 11, 1993, more than five years later, was time barred. Appellants contend, however, that the statute of limitations was tolled when, in July, 1989, State Farm filed a petition for declaratory judgment to determine whether the claimants were entitled to uninsured motorist benefits under the terms of the policy. With respect to this issue, we find it unnecessary to express an opinion.

When one party to an agreement seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of “(1) whether an agreement to arbitrate was entered into and (2) whether the dispute involved comes within the ambit of the arbitration provision.” Rocca v. Pennsylvania General Ins. Co., 358 Pa.Super. 67, 70, 516 A.2d 772, 773 (1986), allocatur denied, 517 Pa. 594, 535 A.2d 83 (1987). See also: Wolf v. Baltimore, 250 Pa.Super. 230, 234, 378 A.2d 911, 912 (1977). Once it has been determined that an agreement to arbitrate exists and that the dispute falls within the arbitration provision, the trial court, pursuant to the provisions of the Uniform Arbitration Act, must order the parties to proceed with arbitration. In such cases, the court is not free to examine the merits of the controversy. Thus, it is provided at 42 Pa.C.S. § 7304(a) and (e), in pertinent part, as follows:

(a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration....
(e) No examination of merits. — An application for a court order to proceed with arbitration shall not be refused, nor shall an application to stay arbitration be granted, by the court on the ground that the controversy lacks merit or bona fides or on the ground that no fault or basis for the controversy sought to be arbitrated has been shown.

These provisions are applicable both to statutory and common law arbitration. See: 42 Pa.C.S. § 7342(a) (Supp.1993). Accord: Rocca v. Pennsylvania General Ins., supra 358 Pa.Super. at 74, 516 A.2d at 776; McGinley v. Allstate Ins. Co., 352 Pa.Super. 139, 142-143, 507 A.2d 420, 422 (1986).

In Nagle v. Allstate Ins. Co., 358 Pa.Super. 82, 516 A.2d 1191 (1986), Robert Nagle was injured when he was struck by a vehicle while attempting to attach an automobile to a tow truck. The vehicle which struck Nagle was owned by Larry Weller and operated by Jeffrey Shealer, an employee of Tecnad Enterprises. Nagle commenced suit against Shealer, Weller and Tecnad. Shealer was denied coverage by his own insurer as well as by Weller’s insurance carrier. Therefore, Nagle sought uninsured motorist benefits from Allstate, his father’s insurance carrier. Without the consent of Allstate, Nagle entered into a settlement agreement with Weller and Tecnad. Allstate therefore denied Nagle’s request for uninsured motorist benefits and refused to submit the claim to arbitration or to appoint an arbitrator. Nagle’s subsequent petition to compel arbitration was denied by the trial court on the basis that, pursuant to the Uninsured Motorist Act, 40 P.S. § 2000(e)(2), one who enters into a settlement "without the insurer’s consent is precluded from recovering uninsured motorist benefits. On appeal to the Superior Court, Nagle argued that the trial court had committed error because the policy at issue provided that any disagreement as to the right to receive benefits was to be submitted to arbitration according to the rules of the American Arbitration Association. The Superior Court agreed. Despite the fact that Nagle’s claim for uninsured motorist benefits would ultimately fail, the Superior Court stated, in pertinent part:

Nonetheless, it appears that despite [Nagle’s] inability to recover uninsured motorist benefits ... we are constrained to hold that the matter should have proceeded to arbitration pursuant to [Nagle’s] request. The insurance contract between the parties plainly required that disputes over uninsured motorist coverage be submitted to arbitration. The parties clearly had a dispute over whether [Nagle] was entitled to such benefits. Therefore, in accordance with the policy language, arbitration became compulsory at the request of either party.
Even though this is a case involving common law arbitration, making [McGinley v. Allstate Ins. Co., 352 Pa.Super. 139, 507 A.2d 420 (1986) ] nondispositive, there is a long line of caselaw holding that even in dealing with common law arbitration, questions concerning the application or construction of the uninsured motorist clause fall within the exclusive jurisdiction of the arbitrators. See, e.g., Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978) (broad power of arbitrators has been repeatedly recognized in uninsured motorist cases, and their decision is final as to whether conditions precedent for coverage have been complied with, whether claim is barred by statute of limitations, whether injured party is included among those covered, and whether motorist is in fact uninsured)....

Id., 358 Pa.Super. at 93, 516 A.2d at 1197 (emphasis added). Compare: Clark v. State Farm Automobile Ins. Co., 410 Pa.Super. 300, 599 A.2d 1001 (1991).

Although the policy of insurance at issue in Nagle v. Allstate Ins. Co., supra, was governed by common law principles of arbitration, its rationale is equally applicable to cases governed by the Uniform Arbitration Act, 42 Pa.C.S. § 7301, et seq. It is well settled that unless restricted by the agreement of submission, arbitrators are the final judges of both law and fact. Brennan v. General Accident Fire and Life Assurance Corp., Ltd., 524 Pa. 542, 550, 574 A.2d 580, 583 (1990). Whether the arbitration agreement is governed by statutory principles or by common law, questions of law and fact are properly submitted to the arbitrators. See: 42 Pa.C.S. § 7304, supra; Runewicz v. Keystone Ins. Co., supra (and cases cited therein); Shannon v. Pennsylvania Edison Co., 364 Pa. 379, 72 A.2d 564 (1950); McGinley v. Allstate Ins. Co., supra. Thus, if a dispute between parties is properly the subject of an agreement to arbitrate, arbitration is the procedure to follow.

We conclude, therefore, that the trial court erred when it denied appellants’ petition for the appointment of an arbitrator on grounds that their claim for uninsured motorists benefits was barred by the statute of limitations. If a valid arbitration agreement exists between the parties and appellants’ claim is within the scope of the agreement, the controversy must be submitted to arbitration. Thereafter, it is for the arbitrators to rule on the merits of the parties’ claims and defenses.

The order of the trial court is reversed, and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Act of October 5, 1980, P.L. 693, No. 142, § 501(a), 42 Pa.C.S. § 7301 et seq.


text:
    641 A.2d 1170
    COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Ronald Eugene JOHNSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1994.
    Filed May 6, 1994.

      Timothy P. Wile, Harrisburg, for appellant.
    R. Mark Thomas, Mechanicsburg, for appellee.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge.

In this appeal from a trial court order which reversed the suspension of Ronald Eugene Johnson’s driving privileges following pleas of guilty to three charges of possession with intent to deliver controlled substances, the Department of Transportation contends that the trial court erred when it (1) allowed an appeal from the suspension nunc pro tunc; and (2) reversed a legislatively mandated suspension following guilty pleas which had never been withdrawn.

On July 1,' 1992, Johnson entered pleas of guilty to three counts of possession with intent to deliver controlled substances and was duly sentenced. Upon certification by the Clerk of Courts of Dauphin County, the Department of Transportation, by letter dated and mailed August 3, 1992, notified Johnson that his operating privileges were being suspended for 90 days in accordance with the mandate of Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780-113(m). By notices dated August 5, 1992, the Department notified Johnson that his driving privileges would be suspended for additional periods of one and two years because of his convictions on the remaining two charges. On December 17, 1992, Johnson filed a petition in the court of common pleas requesting leave to file an appeal nunc pro tunc. This petition was heard on February 5, 1993, after which an appeal nunc pro tunc was allowed. It was allowed because the Department’s notices of suspension had been sent to the address shown on the Department’s records and not to the address shown on the certification prepared and forwarded to the Department by the Clerk of Courts. Johnson testified that he had moved from 264 Boas Street, Harrisburg (the address shown on his driver’s license) to 2946 Wilson Parkway, Harrisburg (the address shown on the court’s records) and had not received the notices sent by the Department. The reason for this was that he had failed to notify the Department that the address shown on his driver’s license had been changed.

A hearing on the merits of the appeal was held on April 8, 1993, after which the hearing court vacated the suspensions. It did so because Johnson had not been told at the time of entering his guilty pleas that a collateral consequence of his pleas was the legislatively mandated suspension of his operating privileges.

“It is well settled that an appeal from a driver’s license [suspension] must be taken within thirty days from the mailing date of the Department’s notice.” Commonwealth, Department of Transportation v. Matlack, 144 Pa.Commw. 12, 15, 600 A.2d 998, 999 (1991). See also: Commonwealth, Department of Transportation v. Shain, 114 Pa.Commw. 360, 538 A.2d 994 (1988); Commonwealth, Department of Trans portation v. Rogers, 53 Pa.Commw. 641, 419 A.2d 235 (1980). “Appeals filed beyond the 30-day appeal period are untimely and deprive the common pleas court of subject matter jurisdiction over such appeals.” Commonwealth, Department of Transportation v. Maddesi, 138 Pa.Commw. 467, 471, 588 A.2d 580, 582 (1991). See also: Bye v. Commonwealth, Department of Transportation, 147 Pa.Commw. 205, 209, 607 A.2d 325, 327 (1992); McGraw v. Commonwealth, Department of Transportation, 123 Pa.Commw. 120, 122, 552 A.2d 1165, 1166-1167 (1989). “An appeal nunc pro tunc may be permitted upon showing that the delay in filing the appeal resulted from extraordinary circumstances involving fraud or a breakdown, in the court’s operations which caused injury to the appealing party.” Commonwealth, Department of Transportation v. Emery, 135 Pa.Commw. 274, 279, 580 A.2d 909, 912 (1990). See also: Commonwealth v. Jarema, 404 Pa.Super. 121, 126, 590 A.2d 310, 312 (1991); Commonwealth v. Bassion, 390 Pa.Super. 564, 568, 568 A.2d 1316, 1318-1319 (1990); Riddle v. Commonwealth, Department of Transportation, 136 Pa.Commw. 508, 512, 583 A.2d 865, 867 (1990). “The decision whether to permit an appeal nunc pro tunc is an equitable matter and [an appellate court’s] scope of review is limited to a determination of whether the trial court has abused its discretion or committed an error of law.” Commonwealth, Department of Transportation v. Rick, 75 Pa.Commw. 514, 516, 462 A.2d 902, 903 (1983). See also: McKeown v. Commonwealth, Department of Transportation, 144 Pa.Commw. 322, 325, 601 A.2d 486, 487 (1991); Holmes v. Board of Zoning Appeals, 130 Pa.Commw. 349, 354, 568 A.2d 301, 303 (1990).

In this case, the first notice of suspension was mailed to Johnson on August 3, 1992, and the second and third notices were mailed by the Department on August 5, 1992. Johnson did not file a statutory appeal until December 17, 1992, when he sought leave of court to appeal nunc pro tunc. His request, clearly, was untimely. Can the untimeliness of the appeal be excused by thé failure of the Department to send notice to the address for defendant shown on the court’s certification of the convictions? We think not. The Vehicle Code required that notice of suspension be sent to Johnson’s “address of record.” See: 75 Pa.C.S. § 1540(b). Another section of the Vehicle Code required Johnson, if he moved from such address, to notify the department in writing of the new address within 15 days after the move. See: 75 Pa.C.S. § 1515.

In Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993), an equally divided Supreme Court affirmed a defendant’s conviction for driving while her operating privileges were suspended. In doing so, the Court rejected the defendant’s argument that the Commonwealth had failed to prove that she had had actual notice of the suspension of her driver’s license, in that the Department of Transportation had mailed the notice of suspension to her former address. The opinion in support of affirmance reasoned as follows:

Appellant’s argument must fail because her admitted failure to notify PennDot of her new address violates 75 Pa.C.S.A. § 1515 and thus, precludes her rebanee on the defense of insufficient notice, where notice was sent to her address of record. Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991). Commonwealth v. Kane, supra, [460 Pa. 582, 333 A.2d 925 (1975) ], is inapposite because, in that case, the defendant’s notice of suspension was not sent to defendant’s address of record with PennDot, but instead, due to a typographical error, was sent to an address at which defendant had never resided. Unlike Kane, in the present case, it was appellant’s own conduct which rendered actual notice impossible. We cannot allow appellant to use a violation of one law to circumvent a violation of another law. Therefore, we conclude that, although actual notice of suspension is still a necessary element of the crime of driving while operating privilege is suspended or revoked (75 Pa.C.S.A. § 1543), a defendant’s failure to notify Penn-Dot of a change of address pursuant to 75 Pa.C.S.A. § 1515, precludes his or her reliance on the defense of insufficient notice.

Commonwealth v. McDonough, supra 533 Pa. at 287-288, 621 A.2d at 572 (Opinion In Support of Affirmance) (footnote omitted).

In Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), the Superior Court had held that “when a defendant fails to notify PennDot of a change in address pursuant to 75 Pa.C.S.A. § 1515, the defendant cannot rely on this violation of the law to insulate him from more serious violations by claiming lack of actual notice.” Id. at 346-347, 590 A.2d at 1267 (footnote omitted).

The Commonwealth Court has reached a similar result. In Korell v. Commonwealth, Department of Transportation, 122 Pa.Commw. 96, 551 A.2d 398 (1988), the Court held that a failure to file a timely appeal would not be excused by a failure to receive notice where the licensee had failed to notify the Department of a change of address. The Court said:

In order for an appeal nunc pro tunc to be permitted there must be fraud or a breakdown in the court’s operations. Department of Transportation, Bureau of Traffic Safety v. Rick, 75 Pa.Commonwealth Ct. 514, 462 A.2d 902 (1983). Appellant contends that [the Department] was aware of his correct address, but mailed the notices to an incorrect address, and that this constituted a breakdown in the administrative operations of [the Department].
[A]lthough two of the many citations which were issued to Appellant appear to contain Appellant’s new. address, the fact remains that Appellant failed to notify [the Department] of his change in address as required by the Vehicle Code. Under these circumstances, we conclude that the delay in filing the appeal was not due to a breakdown in the administrative operations of [the Department], but due to Appellant’s own failure to comply with the change of address provision of the Vehicle Code. Accordingly, we hold that the trial court properly denied Appellant permission to appeal nunc pro tunc.

Id. 122 Pa.Cmwlth. at 98-99, 551 A.2d at 400 (footnote omitted).

Subsequently, in Commonwealth, Department of Transportation v. Lang, 148 Pa.Commw. 19, 610 A.2d 1076 (1991), the Commonwealth Court reversed a trial court’s order allowing a motorist to file a nunc pro tunc appeal from the suspension of her driver’s license where the trial court had permitted the nunc pro tunc appeal on grounds that notice of the suspension had been mailed to the motorist’s former address, even though “the Department had within its bureaucratic network the [motorist’s] current mailing address.” Id. at 23, 610 A.2d at 1077. The Commonwealth Court rejected the trial court’s analysis and held that the absence of evidence that the motorist had properly notified the Department of Transportation of her change of address precluded an appeal nunc pro tunc. With respect to the notification provisions of 75 Pa.C.S. § 1515, the Commonwealth Court has observed further:

Clearly, a notice of revocation of driving privileges can only be sent to a motorist’s last known address. Here, Cern’s last known address as recorded in [the Department’s] official files was his former Pennsylvania address.
Cern, of course, bore the responsibility of informing [the Department] of his change of address pursuant to Section 1515 of the Code, 75 Pa.C.S. § 1515, but there is nothing in the record to indicate that he did so. Absent such notifica-' tion of a change of address, it was neither unreasonable nor improper for [the Department] to rely upon the address officially listed in its records as Cern’s last known address, despite a contrary address on the citation issued to Cern for his third offense. Otherwise, Section 1515 of the Code, 75 Pa.C.S. § 1515, would be rendered ineffective. Moreover, to conclude differently might compel [the Department] to act contrary to a statutory directive that it issue written notices of suspension or revocation of operating privileges to persons at their addresses of record. See [75 Pa.C.S. § 1540(b)].

Commonwealth, Department of Transportation v. Cern, 145 Pa.Commw. 647, 656-657, 604 A.2d 1135, 1140-1141 (1992) (footnotes omitted). See also: Commonwealth, Department of Transportation v. Warenczuk, 534 Pa. 623, 633 A.2d 1167 (1993) (Opinions In Support of Affirmance by Montemuro, J. and Papadakos, J.).

After careful review of the foregoing authorities, we conclude that the trial court erred when it allowed appellee to appeal nunc pro tunc from the suspensions of his driver’s license. Here, appellee’s failure to file a timely appeal was not attributable to fraud or a breakdown in the Department of Transportation’s administrative operations. The Department of Transportation fulfilled its statutory duty of sending notice to appellee’s “address of record” as required by 75 Pa.C.S. § 1540(b), and it was appellee’s failure to comply with the provisions of 75 Pa.C.S. § 1515 which resulted in the notices of suspension being sent to his former address. Under these circumstances, the trial court incorrectly applied the law when it allowed Johnson to file an appeal nunc pro tunc.

Even if the law were otherwise, this Court would be required to reverse the trial court’s order setting aside the suspension of appellant’s operating privileges. So long as a drug conviction remains extant, the statute mandates a suspension of the defendant’s operating privileges. Only if there has been no conviction, may a suspension imposed by the Department be set aside.

In Commonwealth, Department of Transportation v. Tarnopolski, 533 Pa. 549, 626 A.2d 138 (1993), the Supreme Court said that “[i]n a license suspension case, the only issues are whether the licensee was in fact convicted, and whether [the Department] has acted in accordance with applicable law. [The Department] carries the burden to produce a record of the conviction that supports the suspension.” Id. at 552, 626 A.2d at 140. See also: Commonwealth v. Weis, 416 Pa.Super. 623, 644-645, 611 A.2d 1218, 1230 (1992); Commonwealth, Department of Transportation v. Meckler, 160 Pa.Commw. 609, 613, 635 A.2d 718, 721 (1993); Zeitlen v. Commonwealth, Department of Transportation, 106 Pa.Commw. 170, 171, 525 A.2d 876, 877 (1987).

It is well settled that “an underlying criminal conviction may not be attacked in a subsequent suspension appeal, which is civil in nature.” Commonwealth, Department of Transportation v. Calloway, 60 Pa.Commw. 647, 648, 432 A.2d 322, 323 (1981). See: Commonwealth, Department of Transportation v. Grobes, 45 Pa.Commw. 151, 405 A.2d 588 (1979); Commonwealth, Department of Transportation v. Lea, 34 Pa.Commw. 310, 384 A.2d 269 (1978). See also: Commonwealth v. Bursick, 526 Pa. 6, 12, 584 A.2d 291, 294 (1990); Commonwealth v. Weis, supra; Commonwealth, Department of Transportation v. Valentine, 71 Pa.Commw. 8, 10, 453 A.2d 742, 743 (1982). The relevant inquiry “is whether the operator was convicted and not whether he should have been convicted.” Commonwealth v. Nyman, 218 Pa.Super. 221, 224, 275 A.2d 836, 838 (1971). See also: Commonwealth v. Wolf, 534 Pa. 283, 292, 632 A.2d 864, 868 (1993); Johnson v. Commonwealth, 68 Pa.Commw. 384, 387, 449 A.2d 121, 123 (1982); Commonwealth, Department of Transportation v. Calloway, supra.

In the instant case, although Johnson has suggested the invalidity of his pleas of guilty, he has made no attempt to withdraw the same. The convictions, therefore, stand, and the statute compels suspensions.

Moreover, his allegation that the pleas of guilty were invalidly entered is lacking in merit. In Plowman v. Commonwealth, Department of Transportation, 535 Pa. 315, 635 A.2d 124 (1993), the Supreme Court, in a decision holding Section 13(m) of the Drug Act constitutional, rejected an argument that a suspension of a driver’s operating privileges constituted cruel and unusual punishment. In so doing, the Court said:

The underpinning for [appellee’s] position is that the suspension of her license is a criminal penalty. Because we disagree with her characterization of the sanction imposed, we cannot accept her conclusion. (Although Section 13(m) is included in the Crimes Code, that, in and of itself, does not make the penalty imposed a criminal punishment.) Section 18(m) of the Act is merely a civil consequence of a criminal violation. Furthermore, no discretion exists in its application as PennDOT is required to suspend a driver’s license upon proper notification of a conviction. For these reasons, we hold that Section 13(m) of the Act does not violate either the Eighth Amendment of the United States Constitution or Article 1, Section 13 of the Pennsylvania Constitution.

Id., 535 Pa. at 319-320, 635 A.2d at 127-128 (emphasis added) (footnote omitted).

In view of the Supreme Court’s determination in Plowman, we must decline to follow the holdings of the Commonwealth Court in Commonwealth, Department of Transportation v. Cassidy, 156 Pa.Commw. 611, 628 A.2d 1179 (1993) and Commonwealth, Department of Transportation v. Ahlborn, 156 Pa.Commw. 196, 626 A.2d 1265 (1993) that the suspension mandated by Section 113(m) is a direct criminal penalty. It is, as the Supreme Court has held, a collateral civil consequence.

The law is well, settled that “a defendant’s lack of knowledge of the collateral consequences of pleading guilty does not undermine the validity of his guilty plea.” Commonwealth v. Frometa, 520 Pa. 552, 555, 555 A.2d 92, 93 (1989). See also: Commonwealth v. Duffey, 536 Pa. 436, 439, 639 A.2d 1174, 1175 (1994); Rogers v. Williams, 420 Pa.Super. 396, 403, 616 A.2d 1031, 1034-1035 (1992); Commonwealth v. Englert, 311 Pa.Super. 78, 82, 457 A.2d 121, 123 (1983). The Commonwealth Court has agreed. Thus, in Brewster v. Commonwealth, Department of Transportation, 94 Pa.Commw. 277, 503 A.2d 497 (1986), the Commonwealth Court, sitting en banc, observed that:

a license revocation is a civil proceeding. The suspension of operating privileges is, therefore, a collateral consequence of any criminal proceedings. It is a consequence, civil in nature, whose imposition has been vested in an administrative agency over which the criminal judge had no control and for which he had no responsibility. “Courts have thus consistently held that a trial court’s failure to inform a defendant of this potential collateral consequence does not invalidate his [guilty] plea.” Commonwealth v. Wellington, 305 Pa.Superior Ct. 24, 27, 451 A.2d 223, 224 (1982); Commonwealth v. Englert, 311 Pa.Superior Ct. 78, 457 A.2d 121 (1983).

Id. 94 Pa.Cmwlth. at 280-281, 503 A.2d at 498. See also: Commonwealth v. Duffey, supra 536 Pa. at 439-441, 639 A.2d at 1175-1176; Commonwealth v. Wolf, supra 534 Pa. at 289, 632 A.2d at 867; Commonwealth v. Englert, supra; Commonwealth, Department of Transportation v. Weniger, 136 Pa. Commw. 603, 610-611, 584 A.2d 394, 398 (1990).

Consistently with the decided cases, we hold that a valid plea of guilty to a drug offense does not require the defendant to be informed that, as a consequence of his conviction, his driver’s license will be suspended by the Department of Transportation under 35 P.S. § 780-113(m). Therefore, the failure to receive such information from the court at the time of entering a plea of guilty does not constitute a basis for challenging a suspension in an appeal from the administrative imposition thereof.

When a guilty plea has been entered invalidly, the usual remedy is to move the criminal court to allow a withdrawal of the plea. Unless and until the plea is withdrawn, it constitutes a conviction for which the Department is required to impose a suspension of operating privileges. While the conviction continues to stand, a court cannot set aside a suspension which has been imposed by the Department pursuant to statutory mandate.

Order reversed. Suspension reinstated.

      . This court will entertain the appeal pursuant to Pa.R.A.P. 741(a) because neither party has objected to the court's jurisdiction. It does so despite its belief that jurisdiction more properly resides in the Commonwealth Court. Compare decisions in Commonwealth, Department of Transportation v. Wylie, 162 Pa.Commw. 219, 221 n. 1, 638 A.2d 433, 434 n. 1 (1994), on the one hand, and Commonwealth, Department of Transportation v. Ahlborn, 156 Pa.Commw. 196, 208 n. 9, 626 A.2d 1265, 1271 n. 9 (1993), on the other.

      . This section provided as follows:
      (m) Notwithstanding any other provision in this act, any person, not a registrant, who possesses, sells, delivers, offers for sale, holds for sale or gives away any controlled substance, in addition to any other penalty provided in this or any act, upon conviction for a violation of this act, shall have his or her operating privilege suspended. The clerk of any court of this Commonwealth, within ten days after final judgment of conviction for violations of this act requiring suspension under this section, shall send to the Department of Transportation a record of the conviction on a form provided by the Department of Transportation. When the Department of Transportation suspends the operating privilege of a person under this subsection, the duration of the suspension shall be as follows:
      (1) For a first offense, a period of 90 days from the date of suspension.

        it) For a second offense, a period of one year from the date of suspension.
      (3) For a third offense, and any offense thereafter, a period of two years from the date of suspension. Any multiple suspensions imposed shall be served consecutively.
      Section 13(m) was amended by the Act of April 16, 1992, P.L. 165, to extend the period of suspension for a first offense from ninety days to six months. It was then repealed pursuant to Act 33 of 1993, and its provisions have been transferred to 75 Pa.C.S. § 1532(c), effective August 27, 1993.

      . This section provides as follows:
      § 1515. Notice of change of name or address
      Whenever any person after applying for or receiving a driver’s license moves from the address named in the application or in the driver’s license issued or when the name of a licensee is changed such person shall, within 15 days thereafter, notify the department in writing of the old and new addresses or of such former and new names and of the number of any license then held by the person.
      75 Pa.C.S. § 1515.

      . In Commonwealth, Department of Transportation v. Ahlborn, supra, the Commonwealth Court conceded that "[i]f the license suspension [under 35 P.S. § 780-lI3(m)] is a collateral civil consequence, then precedent is clear that there is no duty on the part of the court to inform the defendant [at the time a guilty plea is entered.]” Id. 156 Pa.Cmwlth. at 205, 626 A.2d at 1269.


author: CERCONE, Judge:

text:
    641 A.2d 1176
    COMMONWEALTH of Pennsylvania v. Pablo MONTALVO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 14, 1994.
    Filed May 12, 1994.

      Anthony Logue, Erie, for appellant.
    William R. Cunningham, Dist. Atty., Erie, for Com., appellee.

      Before OLSZEWSKI, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after a jury found appellant, Pablo Montalvo, guilty of one count each of possession with intent to deliver cocaine and criminal conspiracy. We affirm.

Appellant was on probation in May of 1991. At that time, he met an undercover narcotics investigator posing as an individual on probation. Appellant agreed to supply the narcotics agent with cocaine and was subsequently discovered to be in possession of 27.1 grams of this substance. Although the events leading to appellant’s arrest occurred on May 7, 1991, the Commonwealth did not file any charges until June 25, 1992.

Daniel J. Brabender, Jr., Esquire represented appellant through the preliminary hearing stage of the proceedings. Mr. Brabender filed an initial omnibus pre-trial motion on appellant’s behalf. Thereafter appellant engaged Gene P. Placidi, Esquire as his attorney. On March 3, 1993, the trial court accepted appellant’s guilty plea to one count of possession with intent to deliver, and the Commonwealth agreed to nolle prosse a charge of criminal conspiracy. However, appellant subsequently moved to withdraw his guilty plea. The trial court granted this request on March 29, 1993.

Mr. Placidi then filed several motions, including a request for a bill of particulars and an amended omnibus pre-trial motion containing a suppression request, a motion to dismiss due to excessive and prejudicial delay, and requests for discovery. The Honorable Shad Connelly granted a rule to show cause on the omnibus pre-trial motion and scheduled a hearing for the morning of May 3, 1993. On that date, the trial court found that defense counsel had not properly filed the amended omnibus pre-trial motion with the court administrator in accordance with Erie County local rules and procedure. Consequently, Judge Connelly refused to consider the omnibus motion.

Appellant was brought to trial May 10, 1993, before the Honorable Michael T. Joyce sitting with a jury. The jury found appellant guilty of both criminal conspiracy and possession with intent to deliver. Mr. Placidi filed a motion for a new trial and/or arrest of judgment on May 21, 1993. However, the trial judge denied relief, and on June 25, 1993, sentenced appellant to serve a term of five (5) to ten (10) years imprisonment and pay a fine of $30,000 for the drug offense, with a consecutive term of incarceration of one (1) to three (3) years for criminal conspiracy.

Represented by new counsel, appellant filed a notice of appeal on June 25, 1993. Judge Joyce directed counsel to provide a concise statement of matters complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b). Counsel complied on July 30, 1993. The instant timely appeal followed raising sixteen issues for our consideration:

I. Whether the [trial] court erred and abused its discretion by failing to grant [appellant’s] motion to dismiss, where based, upon excessive and prejudicial delay between the criminal indictment and the arrest of the [appellant].
II. Whether the [trial] court erred and abused its discretion, whereas the [trial court refused to hear the [appellant’s] amended omnibus pre-trial motion which included motions to suppress, motions for sanctions against the Commonwealth and motion to dismiss.
III. Whether the [trial] court erred and abused its discretion by refusing to hear [appellant’s] oral motion in limine, where [appellant’s] counsel requested the Commonwealth be precluded from pursuing a conviction for possession with intent to deliver a controlled substance ■ under the theory of accomplice liability since the Commonwealth never indicated this in its bill of particulars that it would be proceeding under that certain theory.
IV. Whether the [trial] court erred and abused its discretion by instructing the jury on liability for conduct of an accomplice, where the Commonwealth never indicated in its bill of particulars that it was proceeding under accomplice liability for a conviction of possession with intent to deliver a controlled substance.
V. Whether the [trial] court erred and abused its discretion by overruling an objection by defense counsel, where a question of the value of said illegal drugs arose.
VI. Whether the [trial] court erred and abused its discretion, where the [trial] court would not allow defense counsel to object to certain Commonwealth evidence.
VII. Whether the [trial] court erred and abused its discretion by allowing certain testimony to come in pertaining to Pennsylvania State Attorney Drug Agent, David Seda’s involvements at the Erie County Office of Adult Probation whereas this clearly violated the [appellant’s] Fifth (5th), Sixth (6th) and Fourteenth (14th) Amendment rights in violation of the federal Constitution, and violations of the Pennsylvania state Constitution.
VIII. Whether the [trial] court erred and abused its discretion and violated appellant’s rights by failing to have a complete record of the trail [sic] thus prohibiting an accurate review for appellant [sic] purposes.
IX. Whether the [trial] court erred and abused its discretion and failed to consider circumstances regarding appellant’s sentencing where the [trial] court failed to take into consideration the [appellant’s] involvement in a conspiracy was certainly less than the other individual’s alleged involvement in the alleged conspiracy.
X. Whether the District Attorney’s Office demonstrated [prosecutorial] misconduct, where the Office of the Erie County District Attorney failed to properly respond to [appellant’s] request for a bill of particulars per [Pennsylvania Rules of Criminal Procedure] 304, 305 and 306.
XI. Whether trial counsel was ineffective for failing to seek relief regarding the Commonwealth’s Answer to its Bill of Particulars, where said Answer was clearly deficient under [Rules of Criminal Procedure] 304, 305 and 306.
XII. Whether trial counsel was ineffective for failing to properly file appellant’s amended omnibus pre-trial motion, where trial counsel failed to properly file said motion per local rules of court thus denying certain critical motions that being motions to suppress, any and all physical evidence and fruits thereof, any and [all] statements given by [appellant], request for evidentiary hearing, as well as a motion for pre-trial discovery and inspection or motion for sanctions under Rule 305 of the Pennsylvania Rules of Criminal Procedure along with [appellant’s] motion to dismiss.
XIII. Whether trial counsel was ineffective, where counsel failed to object to hearsay evidence at the time of trial.
XIV. Whether trial counsel was ineffective, where counsel failed to poll the jury upon reaching its verdict.
XV. Whether trial counsel was ineffective where it [sic] failed to move to strike certain testimony and asked for curative instructions regarding said testimony.
XVI. Whether trial counsel was ineffective by failing to move for a mistrial, where prejudicial testimony came in without objection thus committing reversible error.

Before addressing these claims on their merits, we note that ah issue is waived for purposes of appellate review if it has not been lodged with the trial court in the form of a post-verdict motion. Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A.; Commonwealth v. Monarch, 510 Pa. 138, 146, 507 A.2d 74, 78 (1986); Commonwealth v. Bleigh, 402 Pa.Super. 169; 176, 586 A.2d 450, 453, allocatur denied, 528 Pa. 607, 596 A.2d 154 (1991). Nevertheless, issues will not be deemed waived if they have been presented to the lower court in some form and have been addressed by the trial judge. See, e.g., Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805, allocatur denied, 528 Pa. 629, 598 A.2d 283 (1991). A claim alleging ineffectiveness of counsel, however, must be raised at the earliest stage in the proceedings in which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Batterson, 411 Pa.Super. 252, 257, 601 A.2d 335, 337 (1992). Thus, questions concerning the ineffectiveness of trial counsel are properly before the Superi- or Court when raised on direct appeal if this constitutes the earliest appropriate opportunity to raise such allegations. Commonwealth v. Pizzo, 529 Pa. 155, 157-58, 602 A.2d 823, 824 (1992); Commonwealth v. Allison, 424 Pa.Super. 341, 344 n. 2, 622 A.2d 950, 952 n. 2 (1993).

Our inspection of the certified record discloses that appellant preserved issues one through four by presenting them to the trial court via post-verdict motion. Although these motions contain no reference to issues five through ten, the trial judge nevertheless addressed them in his opinion. We will therefore not deem them waived for purposes of review. Issues eleven through sixteen concern the ineffectiveness of trial counsel and were raised at the first appropriate opportunity, ie., when appellant, represented by new counsel, filed his Concise Statement of Reasons Complained of on Appeal pursuant to Rule of Appellate Procedure 1925(b). We conclude that all of appellant’s claims are thus properly before the Superior Court and we shall address them seriatim.

Appellant first contends that the trial court erred in refusing to dismiss the instant case based upon an alleged “excessive and prejudicial delay” between the date of the underlying events and appellant’s arrest. A trial court’s conclusion that pre-arrest delay was reasonable under the facts of a particular case is within the discretion of the trial judge. Commonwealth v. Middleton, 379 Pa.Super. 502, 506-07, 550 A.2d 561, 562-63 (1988). We will reverse only if there is insufficient evidence in the record to support the lower court’s determination. Id.

Our law is clear that there is no right to á speedy arrest, only to a speedy trial after an arrest has been made. Commonwealth v. Cagle, 398 Pa.Super. 147,152, 580 A.2d 884, 886 (1990). A pre-arrest delay does not violate fundamental conceptions of justice except where (1) the delay causes actual and substantial prejudice to the defendant and (2) the government has intentionally delayed prosecution solely to gain a tactical advantage over the defendant. Commonwealth v. Lightman, 339 Pa.Super. 359, 368, 489 A.2d 200, 204 (1985), cert. denied, 475 U.S. 1095, 106 S.Ct. 1491, 89 L.Ed.2d 892 (1986). Mere investigative delay does not deprive a defendant of due process, even if the defense might have been somewhat prejudiced by the lapse of time. Commonwealth v. Cagle, supra (relying upon United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977)). Accord Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986) (investigatory delay, if reasonable, does not violate due process, even if a defendant is actually prejudiced in the preparation of his defense as a result of the delay). Nevertheless, in order to obtain relief because of an alleged excessive pre-arrest delay, a defendant must always substantiate that actual prejudice resulted from the delay. Id. (quoting Commonwealth v. Murphy, 305 Pa.Super. 246, 252, 451 A.2d 514, 517 (1982)).

In the instant case, the delay in arresting appellant occurred because the events underlying the criminal charges ultimately filed against him transpired as part of an ongoing, large-scale investigation into drug trafficking at Reno’s Tavern and the surrounding area in Erie County. See trial court opinion dated November 15, 1993 at 2. The trial court specifically found that any earlier arrest for appellant would have jeopardized this entire investigation. Id. There is no indication in the certified record that the government intentionally delayed prosecuting appellant in order to gain a tactical advantage over him. Appellant has not even argued that this was so. Moreover, appellant has utterly failed to allege facts which could serve to substantiate the claim that he suffered “actual and substantial prejudice” as a result of the delay before his arrest. Appellant has merely argued that the investigative delay precluded him in some unspecified manner from asserting unidentified defenses. Accordingly, we find that appellant has not sustained his burden of demonstrating that relief is warranted on this claim.

Appellant’s second issue centers on the trial court’s refusal to hear his amended omnibus pre-trial motion filed at the end of March, 1993. Judge Connelly granted a rule to show cause on March 30th, and scheduled a hearing on the omnibus motion for Monday May 3, 1993 at 9:30 a.m. Under the pertinent local procedure, once a rule to show cause has been signed by the assigned judge, the original and a copy must be taken to the Criminal Court Administrator. See Erie County Local R.Crim.P., Rule 9023. The original rule to show cause should be time-stamped and the copy left as proof of service. Id. The time-stamped original document must then be filed with the Clerk of Courts. Id. After the original document has been processed by both the Criminal Court Administrator and the Clerk of Courts, the petitioner is required to serve the opposing party with an appropriately time-stamped copy of the rule to show cause. Id.

On May 3, 1993, Judge Connelly refused to conduct the scheduled hearing on the omnibus motion because the rule to show cause was never properly filed with the Court Administrator. Appellant argues that this was an abuse of discretion because he allegedly provided actual notice to the Commonwealth of the rule to show cause. It is appellant’s theory that this should be construed as substantial compliance with Local Rule of Criminal Procedure 9023. Unfortunately, the certified record fails to corroborate appellant’s contention that he did in fact provide actual notice to the Commonwealth that the trial court granted the rule to show cause. The record contains neither an affidavit of service nor any other type of documentation in support of appellant’s bald assertion that the Commonwealth actually received notice of the hearing scheduled on the omnibus motion.

We are limited to considering only those facts which have been duly certified in the record on appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 476, 597 A.2d 130, 131 (1991). For purposes of appellate review, what is not of record does not exist. Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). It is the appellant’s obligation to make sure that the record forwarded to the appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal. Commonwealth v. Blystone, 421 Pa.Super. 167, 177 n. 4, 617 A.2d 778, 783 n. 4 (1992). Under the circumstances presented here, we have no basis upon which we could conclude that the Commonwealth received actual notice of the scheduled hearing and that the lower court committed an abuse of discretion in refusing to hear the amended omnibus motion.

The third issue for our consideration is whether the trial court erred in refusing to hear appellant’s oral motion in limine requesting the lower court to preclude the Commonwealth from proceeding under an accomplice liability theory where this approach was never identified in the bill of particulars. Appellant’s fourth claim is related in that appellant also contends that the lower court erred by instructing the jury concerning accomplice liability despite the alleged flaw in the bill of particulars. We disagree.

A bill of particulars is intended to give notice to an accused of the offenses charged so that he or she may prepare an intelligent defense and avoid surprise. Commonwealth v. Dreibelbis, 493 Pa. 466, 472, 426 A.2d 1111, 1114 (1981). The appropriate remedy to be applied “in the interests of justice” when the Commonwealth fails to provide a full bill of particulars has been left to the discretion of the trial court. Commonwealth v. Scott, 469 Pa. 258, 265, 365 A.2d 140, 143 (1976); Pa.R.Crim.P., Rule 304(d), 42 Pa.C.S.A. The Superior Court will reverse the trial judge’s decision in such matters only in the face of a “flagrant abuse of discretion.” Commonwealth v. Albanesi, 234 Pa.Super. 111, 114, 338 A.2d 610, 612 (1975). Absent allegations of exceptional circumstances, we will uphold the trial court’s denial of relief where there is no indication that the Commonwealth deliberately withheld either exculpatory evidence or evidence otherwise favorable to the defense, where the defendant did receive information from the Commonwealth’s compliance with other rules of procedure, and where the accused possessed adequate information on which to prepare a proper defense. Commonwealth v. Hassine, 340 Pa.Super. 318, 361, 490 A.2d 438, 461 (1985).

Appellant has alleged no exceptional circumstances which would take this case outside the general rule articulated in Hassine. Nor does he contend that the Commonwealth deliberately withheld exculpatory evidence or information otherwise favorable to the defense. The trial transcript clearly indicates that appellant was informed at the preliminary hearing that the Commonwealth intended to proceed under an accomplice liability theory. N.T. 5/10/93 at 3-8; 127-130. Furthermore, the nature and quality of the defense actually presented at trial plainly demonstrates that trial counsel was neither surprised by the Commonwealth’s approach nor unprepared to deal with it. Under these circumstances, we conclude that the lower court did not commit a flagrant abuse of discretion in denying appellant’s motion for relief. Since the trial court properly permitted the Commonwealth to proceed under the theory of accomplice liability, it was entirely appropriate for the trial judge to charge the jury in accordance with the case actually presented.

Appellant next contends that the trial court improperly restricted his cross-examination of a Commonwealth witness concerning the monetary value of the drugs involved in this case. We agree with appellant that in criminal cases, the right of cross-examination extends beyond the subjects raised on direct, and includes the right to examine a witness on any facts tending to refute inferences or deductions arising from matters raised during direct testimony. Commonwealth v. Green, 525 Pa. 424, 454, 581 A.2d 544, 558-59 (1990). Nevertheless, this right is not unfettered: the scope and limits of cross-examination in criminal proceedings remain within the discretion of the trial judge and the appellate courts will not reverse absent a clear abuse of that discretion or an error of law. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992).

Appellant claims that the monetary value of the drugs was an important factor which he was entitled to establish at trial. However, he has not explained the reason why he believes that the dollar value of the drags had evidentiary importance. He has merely asserted that “value did have an important factor in this matter.” Appellant’s brief at 17. The trial court found this claim waived because appellant failed to sufficiently identify and explain the theory underlying his request of relief. In light of the rudimentary argument presented by appellant, we are hardly in a position to hold that the trial court committed either a clear abuse of discretion or an error of law in connection with this ruling. Moreover, we must deem an issue abandoned where it has been identified on appeal but not properly developed in the brief. Commonwealth v. Rodgers, 413 Pa.Super. 498, 519, 605 A.2d 1228, 1239, allocatur denied, 532 Pa. 655, 615 A.2d 1311 (1992). The argument portion of an appellate brief must include a full discussion of the particular point raised along with citation to pertinent authorities. Id. 413 Pa.Super. at 520, 605 A.2d at 1239. Under the circumstances presented here, we deem appellant’s argument waived.

The sixth claim of error presented is that the trial court “would not allow” defense counsel to object to the admission of Commonwealth evidence concerning the results of forensic testing of the “white powder” seized in this case. The lower court found that appellant waived this issue by failing even to attempt raising any timely objection when the forensic evidence was admitted. We have carefully inspected the relevant portion of the trial transcript and conclude that the trial court ruling is correct in this matter.

In order to preserve an issue for review, a party must make a timely and specific objection at trial. Commonwealth v. Smith, 414 Pa.Super. 208, 214, 606 A.2d 939, 942 (1992), allocatur denied, 533 Pa. 624, 620 A.2d 490 (1993). The Superior Court will not consider a claim on appeal which was not called to the trial court’s attention at a time when any error committed could have been corrected. Id. Based on the record presented to this court, we can discern no possible basis other than clairvoyance by which the trial court could possibly have known that defense counsel wanted to raise an objection to the admission of the forensic evidence. See N.T. 5/10/93 at 79-81.

For the same reason, we find no merit in appellant’s contention that the trial judge behaved in an “overbearing manner” simply by asking two questions to clarify the expert’s testimony. Id. Appellant failed to indicate in any way to the trial judge that he objected either to the expert’s testimony or to the court’s efforts to elucidate the basis for the expert’s opinion. We therefore affirm on this issue.

Next, appellant argues that his constitutional rights were violated because he was approached by an undercover narcotics investigator while waiting to see his probation/parole officer. It is appellant’s theory that he was in formal police custody at this time because he had signed the waiting room register and was within the confines of space occupied by the Office of Probation and Parole. According to appellant, the undercover agent violated both the federal and state constitutions by contacting him under these circumstances. While we agree with appellant that the Commonwealth may not circumvent an accused’s right to have counsel present during a custodial interrogation, we fail to see the relevance of this rule to the instant case.

Appellant has provided us with neither statutory nor case citations in support of the proposition that sitting in the waiting room of a probation office constitutes being held in formal police custody. He has proffered no factual averments that would tend to support his argument: he has not claimed that he was prevented in any way from leaving the Probation Office waiting room nor has he even stated that the undercover agent questioned him in any manner. In short, appellant has failed to present a fully developed argument. We therefore deem this claim to be waived. See Commonwealth v. Rodgers, supra.

According to appellant, the eighth issue identified on appeal “raises a colorful claim of prejudice” in that the trial court allegedly conducted two off-the-record discussions at which both trial counsel and the assistant district attorney were present. We agree with appellant that Rule of Criminal Procedure 9030 provides that after a defendant has been held for court, proceedings conducted in open court shall be recorded. Pa.R.Crim.P., Rule 9030(a), 42 Pa.C.S.A. However, nothing in this rule prohibits the trial court from conducting off-the-record sidebar discussions.

Although appellant has failed to identify the subject matter of the purported sidebar discussions in this case and the point in the proceedings at which they supposedly took place, the lower court has directed our attention to the location in the transcript of one such sidebar. Our review of the record indicates that this “off-the-record” discussion occurred after the jury had been excused and that it was in fact transcribed by the court reporter. See N.T. 5/10/93 at 127-130. In light of the sparse argument provided, we are unable to verify if a second sidebar ever occurred. Under these circumstances, we can find no justification for granting a new trial on the basis of this claim of error.

Next appellant argues that the lower court erred when imposing sentence by failing to consider certain facts of record which appellant contends were established at trial. A claim that the sentencing court was in possession of factual information, but failed to properly apply it, goes to the discretionary aspects of the sentence imposed. See Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). We could find this issue waived solely because appellant’s brief does not include a separate statement requesting permission to appeal from the discretionary aspects of sentence as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). A more fundamental problem, however, is that appellant’s argument does not present a “substantial question” within the meaning of our law.

An allegation that the sentencing court “failed to consider” or “did not adequately consider” facts of record is effectively a request for this court to substitute its judgment for that of the lower court. Commonwealth v. Williams, 386 Pa.Super. at 326, 562 A.2d at 1388. Averments of this type concede that the sentencing court was in possession of adequate information but failed to apply it. Id. However, our law presumes the exact converse, i.e., that when a sentencing court is in possession of the facts it will correctly apply them to the case at hand. Id. Because appellant has failed to present a substantial question, we deny permission to appeal from the discretionary aspects of sentence.

Under the guise of an allegation of prosecutorial misconduct, appellant next attempts to rehash his previous claims concerning the Commonwealth’s failure to properly respond to his request for a bill of particulars. Since we have already concluded that appellant possessed adequate information with which to prepare his defense, we decline to address the underlying claim for a second time. We note, however, that the Rules of Criminal Procedure provide that when defense counsel desires further particulars after an original bill of particulars has been furnished, the proper action is to file a motion requesting the additional particulars within five days after the original bill is furnished. Pa.R.Crim.P., Rule 304(c), 42 Pa.C.S.A.

In this case, the certified record shows that trial counsel’s request for a bill of particulars was docketed November 3, 1992, while the Commonwealth’s response was docketed on December 15th. However, the certified record contains no indication that trial counsel ever requested additional particulars. We do not condone the deficient work of the District Attorney’s Office. Nevertheless, because appellant never formally requested additional particulars in conformity with the established procedure, we agree with the trial court that the Commonwealth’s incomplete bill of particulars did not constitute actual misconduct on the part of the prosecutor. See N.T. 5/10/93 at 5-6.

Appellant’s remaining claims involve various contentions that prior counsel was ineffective. As previously discussed, this is appellant’s first opportunity to challenge the representation provided by trial counsel. His claims are therefore properly before this panel. In some instances, a remand to the trial court might be necessary in order to rule on the merits of an ineffectiveness challenge raised for the first time on appeal. See, e.g., Commonwealth v. Kauffman, 405 Pa.Super. 229, 592 A.2d 91, allocatur denied, 529 Pa. 617, 600 A.2d 534 (1991). However, such a remand is appropriate only where it is impossible to tell from the record whether the actions of prior counsel could have had a rational basis. Commonwealth v. Lott, 398 Pa.Super. 573, 578-79, 581 A.2d 612, 615 (1990), allocatur denied, 527 Pa. 663, 593 A.2d 839 (1991). Remand is not required if an adequate record exists. Id. “[W]here it is clear that allegations of ineffectiveness of counsel are baseless or meritless[,] then an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed.” Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984). As the record in the instant case is sufficient to facilitate our review, no need exists to delay the judicial process by vacating the judgment of sentence and remanding for a hearing.

We review a claim of ineffective assistance of counsel under the following standard:

First we must determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. March, 528 Pa. 412, 414-15, 598 A.2d 961, 962 (1991). An allegation of ineffectiveness of counsel cannot be established without a finding of prejudice. Id. at 415, 598 A.2d at 963. Accord Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

Appellant’s first ineffectiveness claim centers on the familiar theme that he was entitled to a full bill of particulars with regard to the Commonwealth’s intention to pursue an accomplice liability theory. However, Appellant contends that trial counsel was culpable in failing to request further written particulars after the original bill was filed. We have already determined that the underlying issue has no arguable merit. Additionally, however, we find that appellant cannot show the requisite prejudice in this context. Appellant received actual notice at his preliminary hearing that the .Commonwealth intended to proceed under an accomplice liability theory. There is no reasonable probability that the result at appellant’s trial would have been different “but for” trial counsel’s alleged failure to secure written notice' of this fact.

The twelfth issue focuses on trial counsel’s failure to properly file the amended omnibus pre-trial motion thereby depriving appellant of the opportunity to present his suppression motion, a request for pre-trial discovery, and a motion to dismiss. Unfortunately, appellant identified only the relief sought and not the grounds upon which the omnibus motion was premised. In making assertions of ineffectiveness, an appellant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective; the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. at 4, 559 A.2d at 505; Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). On the basis of the argument proffered, we are in no position to evaluate the underlying merit of appellant’s claim since we cannot determine whether the omnibus motion stated any viable grounds on which the trial court could have granted relief. Contrary to appellant’s unsupported assertion, in the absence of sufficient factual averments to support the conclusion that the underlying claim is meritorious, there is no possibility of concluding that “but for” counsel’s omission, a reasonable probability exists that the result would have been more favorable to the petitioner. See Commonwealth v. March, supra.

The entire argument on the thirteenth ineffectiveness claim consists of the following two statements:

Appellant next contends that Trial Counsel was ineffective for failure to object to hearsay testimony at [the] time of trial. A clear review of the trial transcript would indicate numerous occasions that counsel was ineffective for failing to object to hearsay statements made by Commonwealth witnesses.

Appellant’s brief at 29. As discussed above, this court will not consider ineffectiveness claims in a factual vacuum. See Commonwealth v. Durst and Commonwealth v. Pettus, supra. Furthermore, we decline to become substitute counsel for appellant by searching the record for specific locations which might substantiate the bald assertion that trial counsel failed to object to unidentified hearsay testimony.

Next, appellant argues that trial counsel was ineffective for failing to request a poll of the jury, in accordance with Rule of Criminal Procedure 1120, when the verdict was announced. See Pa.R.Crim.P., Rule 1120(f), 42 Pa.C.S.A. (jury poll for unsealed verdicts). Appellant cites Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954) for the proposition that the defendant in a criminal case possesses an absolute right to have the jury polled. However, we disagree with this interpretation of Martin, which concerns the right to a jury poll only in the context of a capital case actually resulting in a death sentence.

In Commonwealth v. Rivers, 256 Pa.Super. 466, 390 A.2d 197 (1978), a seven judge panel of this court refused to find ineffective representation premised upon trial counsel’s failure to request a jury poll where the jury’s deliberation lasted only forty-five minutes and the jury foreman indicated two times that the verdict was unanimous, once to the court crier and once to the trial judge. Id. at 473-474, 390 A.2d at 200-201. The jury foreman in the instant case twice announced that the jury had reached a unanimous verdict on both counts charged: once to the tipstaff, and once to the trial court. N.T. 5/10/93 at 130-131. Moreover, the jury in this case needed to deliberate for a period of less than one half hour. As in Rivers, we are not prepared to hold that trial counsel was ineffective for failing to request that the jury be polled under such circumstances.

The fifteenth issue is similar to appellant’s thirteenth claim in that the entire argument consists of two sentences which fail to identify the exact instances at trial when prior counsel was derelict in his duty:

Appellant next contends that Trial Counsel was ineffective for failure to move to strike certain testimony and ask for curative instructions regarding said testimony at [the] time of trial. A clear review of the trial transcript would indicate numerous occasions that counsel was ineffective for failing to strike certain testimony and ask for curative instructions regarding said testimony.

Appellant’s brief at 31. For the reasons already set forth in conjunction with our review of issue number thirteen, we decline to find trial counsel ineffective in this regard.

The sixteenth, and final, issue presented asserts that trial counsel was ineffective for failing to move for a mistrial after the lower court sustained an objection to hearsay evidence. Under Rule of Criminal Procedure 1118, a defendant must move for a mistrial at the time a prejudicial event is disclosed. Pa.R.Crim.P., Rule 1118(b). Otherwise any potential claim is waived and the defendant is entitled to relief only if the trial judge finds a new trial to be a “manifest necessity.” Id. However, the trial court need not grant every request for a mistrial simply because inadmissible evidence is presented to the jury. A mistrial is an extreme remedy and is required only when the incident is of such nature that the unavoidable effect is to deprive the defendant of a fair trial. Commonwealth v. Montgomery, 533 Pa. 491, 497-98, 626 A.2d 109, 112-13 (1993); Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991), cert. denied, — U.S. -, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992). See also Commonwealth v. Larkins, 340 Pa.Super. 56, 63, 489 A.2d 837, 840-41 (1985) (“prejudicial” in context of motion for mistrial denotes event which may reasonably be said to have deprived defendant of fair and impartial trial).

The specific test to be applied upon a motion for mistrial is whether improper evidence was admitted at trial, such as would so compromise the fact finder that it would be unable to remain impartial, thereby prejudicing the defendant beyond a reasonable doubt. Commonwealth v. Dean, 300 Pa.Super. 86, 91, 445 A.2d 1311, 1313 (1982). Appellant’s claim is premised upon the following exchange which took place during the testimony of David Seda, an investigative agent of the Pennsylvania Office of the Attorney General, Bureau of Narcotics:

Q. [By the prosecutor]: Okay. All right. So, at this point, William leaves Reno’s Bar; is that correct?
A. Not — we then, after having — I agreeing to the thirteen hundred, Mr. William informing me of this, he then — Mr. William then told me — told me that the cocaine that he was going to get me was good cocaine, and that anytime that I needed—
MR. PLACIDI: Your Honor. Your Honor, may we approach?
THE COURT: It’s sustained. Hearsay. Is that what you were going to—
MR. PLACIDI: Yes, thank you.

N.T. 5/10/93 at 47.

We agree with appellant that this portion of the transcript clearly indicates that the jury heard inadmissible hearsay evidence. However, appellant has failed to explain the manner in which this testimony concerning the statements allegedly made by a third party so compromised the factfinder that it is beyond a reasonable doubt that the jury was unable to remain impartial. Moreover, our scrutiny of the record discloses no indication that appellant was deprived of a fair trial so as to justify the grant of a motion for a mistrial. In light of these circumstances, we conclude that the underlying claim is meritless. Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 410, 502 A.2d 173, 175 (1985).

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903.

      . We are cognizant of the fact that the Pennsylvania Rules of Criminal Procedure governing post-trial practice have been extensively modified so as to essentially eliminate the necessity of filing post-trial or post-verdict motions in order to preserve issues. See Pa.R.Crim.P., Rules 86, 302, 320 comment, 321, 359-360, 1122-1125, 1403, 1405, 1410, 1501, 6007, 9022, 9024, 42 Pa.C.S.A. (codified at 234 Pa.Code Chapters' 50, 300, 350, 1100, 1400, 1500, 6000, and 9000). However, the changes to the Rules only apply to cases in which the determination of guilt occurred on or after January 1, 1994. Since appellant’s jury trial transpired in May of 1993, the new Rules do not apply to the instant case.

      . The copy of this document contained in the certified record shows that although it was presented to the Clerk of Records on March 31, 1993, it was never date-stamped by the Court Administrator of the Criminal Division prior to the scheduled date for the hearing on the omnibus motion. recorded in Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973), but a full trial transcript was never prepared because the court stenographer died before she could complete this project. No other stenographer proved capable of deciphering the decedent’s notes. Since the defendant did not file a direct appeal and waited twelve years before requesting collateral relief, defense counsel could no longer remember the details of the trial and consequently could not produce a statement in lieu of transcript. Under these extreme circumstances, not present instantly, our Supreme Court ordered a new trial.

      . We are cognizant of the cases cited by appellant, but find them totally inapposite to the instant appeal. Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971) concerns a situation in which the Supreme Court ordered a new trial because no record of any sort had been made at the defendant’s first trial. By way of contrast, the trial was properly

      . The jury was excused at 4:02 p.m. and returned at 4:30 p.m. N.T. 5/10/93 at 127, 130.

      . Appellant’s brief also contains the following averment: "Further, counsel failed to move for cautionary instruction regarding this information.” While we do not disagree with this statement, we do not find it to be a developed argument alleging ineffectiveness which must be addressed on the merits. Accordingly, we consider any issue thus marginally identified to be waived. See Commonwealth v. March and Commonwealth v. Rodgers, supra.