author: OLSZEWSKI, Judge: BECK, Judge,

text:
    592 A.2d 343
    In re LAYING OUT AND OPENING A PRIVATE ROAD. Appeal of David L. and Gloria J. ZEAFLA.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1991.
    Filed June 11, 1991.

      Steven E. Owlett, Wellsboro, for appellants.
    Lester L. Greevy, Williamsport, for Aldinger, participating party.
    Ambrose R. Campana, Williamsport, for Double Tree Camp, Inc., participating party.
    James D. Casale, Williamsport, for Volckmer, participating party.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order dismissing the appeals and exceptions filed by David and Gloria Zeafla, and entering judgment in accord with the findings and report of the Board of View (hereinafter, “Board”). In September 1988, Harry Aldinger filed a petition to appoint viewers and lay out and open a private road in the Court of Common Pleas of Lycoming County. Aldinger’s petition sought to open a private road from his land in Lycoming County, across the adjacent farm of the Zeaflas, to a public road. By motion of the Zeaflas, an additional defendant, Double Tree Camp, Inc., was joined. Double Tree subsequently joined Dorothy Volckmer. Both Double Tree and Volckmer also own property adjacent to Aldinger’s. A private road could be laid out across either the Double Tree or Volckmer property to allow Aldinger access to a public road.

The Board was properly appointed. Following a view of the land in question and hearings on the matter, the Board issued a report concluding that the private road should be opened across the Zeafla farm as Aldinger requested. The Zeaflas appealed the Board’s decision to the court of common pleas, which affirmed the Board and issued the order in question. This timely appeal followed.

On appeal, the Zeaflas raise three issues for our consideration. First, the Zeaflas argue that there is no necessity for a private road, as Aldinger has a permissive right-of-way across the farm to reach his property. Alternatively, the Zeaflas allege that the Board’s failure to make a specific finding of necessity renders its decision void. Second, the Zeaflas claim that, assuming arguendo, necessity exists, the Board abused its discretion in opening the private road over their farm. Finally, the Zeaflas assert that the Board did not have sufficient evidence to render a finding as to damages and that they are entitled to a jury trial as to the issue of damages. Having carefully examined the positions of the parties, we vacate and remand for further proceedings.

The Board made the following relevant findings of fact. The land owned by Aldinger does not have legal access to a public road, except for the the permissive right granted Aldinger by the Zeaflas. (Board Report of 2/8/90, hereinafter, “Report,” finding no. 5, p. 3.) The existing roadway across the Zeafla farm to the Aldinger property was formerly a public road, which continued across the Aldinger and Double Tree properties and was vacated in 1923. (Report, findings nos. 10-11.) The road across the Zeafla farm is the most appropriate site for the private road, because the site of the existing roadway across the Double Tree property is in poor condition and there was no previous existing roadway across the Volckmer property. (Report, findings nos. 11, 12, 17, 18.) No evidence was produced as to the value of the Zeafla farm before and after the private road would be opened. (Report, finding no. 20.) The Board awarded damages to the Zeaflas in the amount of $5,000.00. (Report, finding no. 29.)

As an initial matter, we note that there appears to be some question as to which intermediate court properly has jurisdiction of this appeal. Superior Court has heard appeals from court of common pleas orders affirming the findings of a board of view as to the opening of a private road. See, Driver v. Temple, 374 Pa.Super. 389, 543 A.2d 134, alloc. denied 520 Pa. 607, 553 A.2d 969 (1988); In re Private Road In Greene Township, 343 Pa.Super. 304, 494 A.2d 859 (1985). Commonwealth Court has likewise heard this type of appeal. See, Mandracchia v. Stoney Creek Real Estate, 133 Pa.Cmwlth. 510, 576 A.2d 1181 (1990); Bitting v. Beaston, 120 Pa.Cmwlth. 448, 549 A.2d 611 (1988); Mattei v. Huray, 54 Pa.Cmwlth. 561, 422 A.2d 899 (1980).

In point of fact, Commonwealth Court has held that these cases are clearly within its exclusive jurisdiction under 42 Pa.C.S.A. § 762(a)(6), stating that there is no jurisdictional distinction between public condemnations and private condemnations. Mandracchia, supra 133 Pa.Cmwlth. at 515 n. 2, 576 A.2d at 1183 n. 2. We agree, the laying out and opening of a private road is clearly a taking of private property which could not occur absent the statutory empowerment of the condemnor by the government. The opening of such a road provides access to a public highway, and also provides access to the condemnor’s property under certain circumstances. “Eminent Domain” has been defined as “The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character.” Black’s Law Dictionary, 5th Ed., p. 470 (citation omitted). Eminent domain is a technical phrase which must be construed according to its peculiar and appropriate definition. 1 Pa.C.S.A. § 1903(a). We hold today that appeals from petitions for the laying out and opening of private roads are eminent domain proceedings within the exclusive jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S.A. § 762(a)(6). Nonetheless, as no party has raised the jurisdictional issue, we will consider the merits of this appeal in the interests of judicial economy as per 42 Pa.C.S.A. § 704, Pa.R.A.P. 741. See, Cohen v. Temple University of Commonwealth System of Higher Educ., 299 Pa.Super. 124, 445 A.2d 179 (1982). Eldred Township v. Monroe County, 330 Pa.Super. 74, 478 A.2d 1357 (1984).

A board of viewers has broad authority under 36 P.S. § 2731 to determine whether a private road is necessary. In re Private Road in Greene Township, supra 343 Pa.Super. at 306, 494 A.2d at 860. In reviewing the board’s decision, a trial court may confirm the report, or reject it and direct a review. Id., 343 Pa.Superior Ct. at 307-08, 494 A.2d at 861 (citation omitted). “Appellate review is limited to ascertaining the validity of the court’s jurisdiction, the regularity of the proceedings, questions of law and whether there has been an abuse of discretion.” Id. (citation omitted). With these standards in mind, we examine the case at hand. /

The Zeaflas challenge the necessity of the private road in question. Specifically, the Zeaflas argue that because the private road could run across the Double Tree or the Volckmer property, it is not necessary that it run across their property. This argument mistakes the concept of necessity. “[A]n example of ‘strictest necessity’ is where a parcel of land is completely landlocked.” Id. (citation omitted). Here the Board made a specific finding that the Aldinger parcel is landlocked. Hence, a private road over one of the adjoining parcels is a necessity. To accept the Zeaflas’ argument would place Aldinger in a classic catch-22. As long as a parcel is landlocked, a private road is a necessity; however, as long as there is more than one adjoining landowner, the private road does not necessarily have to impinge upon any particular adjoining landowner’s property. Each adjoining landowner could claim that it was possible to place the private road on a different adjoining landowner’s property, thereby preventing the landlocked parcel’s owner from obtaining any private road. We do not believe the legislature intended such an absurd result. “Absolute necessity” is not a requirement of the statute. Id. (citation omitted).

Nor are we persuaded by the Zeaflas’ argument that the Board never made a finding of necessity. As described above, a landlocked parcel is an example of “strictest necessity.” We will not require a board of viewers to use the specific term “necessity” in its findings. We agree with the trial court that the Board’s finding that the parcel was landlocked implies the requisite necessity. (Trial court order at 1.)

Finally, the Zeaflas argue that Aldinger’s characterization of the present permissive right as an irrevocable license negates any necessity. This overlooks the nature of an irrevocable license. Assuming, arguendo, that Aldinger does have an irrevocable license, the right to traverse the Zeafla farm does not necessarily run with the landlocked parcel. Successors in interest to the Zeafla farm would take subject to the license only if they had notice of it. Kovach v. Gen. Tel. Co. of Pa., 340 Pa.Super. 144, 147-49, 489 A.2d 883, 885 (1985). The ephemeral nature of such a license is sufficient to render the more permanent remedy of a private road a necessity, at least in the context of a landlocked parcel as presented here.

We also do not agree that the Board abused its discretion in granting the private road across the Zeafla farm. The Board viewed the properties in question and held the appropriate hearings. The Board’s findings amply support its determination that the existing road across the Zeafla farm is the most appropriate place for the private road. The Zeaflas’ argument that the agricultural use of their property makes it more appropriate to place the road on the Double Tree or Volckmer tracts is unavailing. See, Driver, supra 374 Pa.Super. at 398-400, 543 A.2d at 138-139. The use to which the land being taken has been put goes to the issue of damages, not the propriety of the route chosen, so long as the choice is otherwise proper. Id.

The Zeaflas’ last argument is that the computation of damages was erroneous. We agree. Damages for a private road are to be ascertained as if the land was being taken for a public road. 36 P.S. § 2736 (Purdon’s Supp. 1990). The Zeaflas argue that this requires that damages be ascertained in accord with the Eminent Domain Code, 26 P.S. § 1-101, et seg., which provides:

Just compensation shall consist of the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this code.

26 P.S. § 1-602 (Purdon’s Supp.1990). Further, the burden is on Aldinger, as the condemnor, to present expert testimony as to the appropriate amount of damages. 26 P.S. § 1-702 (Purdon’s Supp.1990). See, In re Private Road in Greene Township, supra 343 Pa.Super. at 307-10, 494 A.2d at 861-862, for the proposition that the Eminent Domain Code applies to private road actions. Aldinger presented no such evidence. (Report, finding no. 20.) The Board apparently substituted the general value of similar land in the community for the valuation of the Zeaflas’ land required. (Report, findings nos. 25, 26.) Proper evidence must support a board’s findings as to damages. In re Private Road in Greene Township, supra at 309-10, 494 A.2d at 862. We find no record of any being presented here.

The opening of a private road is a statutorily granted privilege allowing one citizen to condemn his neighbor’s land for his own purpose. His neighbor is entitled to fair and just compensation for the land taken. The condemnor must present adequate evidence of the fair market value of that land to determine the exact amount of damages due his neighbor.

The Zeaflas also assert that they are entitled to a jury trial as to damages if the new findings of the Board are appealed to the court of common pleas. We agree. See, In re Private Road in Monroeville Borough, Allegheny County, 204 Pa.Super. 552, 556-57, 205 A.2d 885, 887 (1965); Mattei, supra 54 Pa.Cmwlth. at 565 n. 5, 422 A.2d at 901 n. 5 (noting the existence of a right to jury trial on damages). Therefore, upon remand, Aldinger must present expert evidence as to the value of the Zeafla farm before and after the taking, and the Zeaflas are entitled to a jury trial as to the amount of damages. Of course, the Zeaflas are entitled to present their own evidence as to the fair market value of the land taken.

We note that the Zeaflas filed an “Application for Relief” four days before the scheduled date of argument for this case. That application alleges that Aldinger has not yet paid the damages as determined in the order being appealed and has conveyed his property to another party. The application requests a remand to the court of common pleas with instruction to dismiss Aldinger’s petition on the grounds that he is no longer a party in interest as he does not own the property which will be benefitted by the opening of the private road. It is true that payment of damages is a statutorily mandated prerequisite to the opening of a private road, and has, in fact, long been the law in Pennsylvania. 36 P.S. § 2736 (Purdon’s Supp.1990); Clowe’s Private Road, 31 Pa. 12 (1854). Nonetheless, Aldinger has not yet had an opportunity to answer the allegations contained in the Zeaflas’ application. Further, as an appellate court, we are not as well suited to the requisite initial factual inquiry as our trial court brethren. Therefore, we remand this case to the court of common pleas which shall conduct a hearing to determine whether Aldinger is a proper party to these proceedings. If Aldinger is no longer a party in interest to the petition, it must be dismissed; if Aldinger is a proper party to this petition, the Zeaflas are entitled to a jury trial as to the proper amount of damages. Aldinger must present expert testimony of the fair market value of the property before and after the opening of this road. The Zeaflas are also free to present evidence as to this issue.

As a final matter, we encourage the legislature to revisit this area. The taking of private property for a private road is an action in the nature of an eminent domain proceeding. The statutes governing this taking, however, in our opinion, do not provide adequate protection to the party whose property is taken. In proceeding under the Eminent Domain Code, an attorney must be the chairman of the Board of View. 26 P.S. § 1-503 (Purdon’s Supp.1990). A Board of View for the taking of a private road only requires that one-third of its members be admitted to the bar. 42 Pa. C.S.A. § 2142 (Purdon’s Supp.1990). The Eminent Domain Code requires expert evidence as to the value of the property taken. 26 P.S. § 1-702 (Purdon’s Supp.1990). Although evidence of the value of the property taken is required when assessing damages for the opening of a private road, there is no express statutory requirement that expert evidence be presented. Further, in a private road case the petitioner does not have to post a bond assuring that the party whose property is taken will receive compensation. This deficiency has led to the present state of affairs in this case, where the condemnor is alleged to have obtained a decree opening the road and then conveyed the dominant tenement to a third party before paying the damage award to the owner of the servient tenement. The absence of such protections is especially critical in light of our holding today that appeals of these cases lie within the exclusive jurisdiction of the Commonwealth Court and that Court’s position that the Eminent Domain Code does not apply to these cases. See, Mattei, supra. Finally, allowing a private citizen to exercise the eminent domain power for a private purpose may raise constitutional implications. As neither party has alleged any such violation, we abstain from passing upon the question.

Order vacated. Case remanded for further proceedings consistent with this decision. Jurisdiction relinquished.

TAMILIA, J., concurs in the result.

BECK, J., files a concurring opinion.

EXHIBIT A

BECK, Judge,

concurring.

This matter involves the request by appellee Aldinger for the laying out of a private road over the property of appellants, the Zeaflas. Appellee instituted his request pursuant to 36 P.S. § 2731 (1927). As required by statute, a Board of Viewers (Board) was appointed, and the Board conducted two views of the site proposed for a private road. The Board held two hearings in order to take testimony from the parties interested in the laying out of the private road. A final report was issued in which the Board determined appellee’s requested private road should be established over appellants’ property and that appellee must first pay appellants $5000 compensation for the taking of their property. Appellants took exceptions to the Board’s final report, and appealed the Board’s determination to the court of common pleas. The lower court dismissed appellants’ exceptions and appeal, and entered judgment in accordance with the Board’s final report. The appellants now appeal.

I agree with the majority’s holding that the necessity of and location of the private road should be affirmed, and that the determination of damages must be vacated and reconsidered by the trial court. However, I write separately to explain further my reasons.

I first note that the current statutes providing the procedure for establishing a private road over another’s property substantially have been taken from an 1836 law. (Act of June 13, 1836, P.L. 551, entitled “An Act Relating to Roads, Highways and Bridges”). In the current restructured format, the statutory provisions describing the procedure are not abundantly clear.

Chapter 5 of Title 36 of the Pennsylvania Code specifically addresses “Private Roads.” The statutes within chapter 5 provide that upon petition a court shall direct that a view be made of the location where the requested private road is to be established, and that the viewers report their findings. 36 P.S. § 2731, originally enacted as P.L. 551, § 11 (June 13, 1836). If the viewers’ report shows that the requested private road “is necessary,” then the court shall direct the opening and laying out of the private road. 36 P.S. § 2732, originally enacted as P.L. 551, § 12 (June 13, 1836). In laying out a private road, the viewers must consider: (1) the shortest distance for a private road, (2) the best ground for a private road, (3) the road that will cause least injury to the private property being taken, and (4) the location proposed by the petitioners. 36 P.S. § 1785, originally enacted as P.L. 551, § 2 (June 13, 1836). The determination of damages sustained by the owner of the property over which the private road is established, “shall be estimated in the manner provided in the case of a public road.” 36 P.S. § 2736, originally enacted as P.L. 551, § 16 (June 13, 1836).

A reference to the provisions for determining damages in public road matters, chapter 4 of Title 36 entitled “Public Roads in General,” merely provides that the viewers shall “assess the damages and make a report thereof.” 36 P.S. § 1881, originally enacted as P.L. 164, § 1 (May 14, 1874).

With this background I address appellants’ challenges. Appellants first complain that the Board erred in determining that the proposed private road over their property is necessary. Appellants however also correctly note that this court’s standard of review of a Board of Viewers’ findings is very limited. See, e.g., Driver v. Temple, 374 Pa.Super. 389, 394-95, 543 A.2d 134, 137 (1988) (en banc), appeal denied, 520 Pa. 607, 553 A.2d 969 (1988); Application of Little, 180 Pa.Super. 555, 558, 119 A.2d 587, 588 (1956). It is well established that

[a]ppellate review of [private road proceedings] ... is solely to ascertain the validity of the court’s jurisdiction, the regularity of the proceedings, questions of law, and whether there has been an abuse of discretion. We cannot look beyond the record ... or consider questions of fact.

Driver, 374 Pa.Super. at 395, 543 A.2d at 137. Appellants contend the Board and the lower court abused their discretion in both determining the necessity of and the location of the private road over appellants’ property.

As noted above, the Board statutorily must consider four separate factors in determining the necessity and location of a requested private road. 36 P.S. § 1785. The findings of fact presented by the Board show that the Board considered each of these factors and did not abuse its discretion in determining the necessity for or the location of the private road in question.

The Board specifically found that appellee currently has access to his property by permissive use of a roadway over appellants’ property. It is this unimproved roadway that the Board determined should be the private road granted to appellee. The Board also found that no other access currently exists to appellee’s property. Moreover, the Board recognized that the appellants’ property is useful farmland, while an alternate location for a private road that was proposed by appellants, is recreational land. It is clear from the Board’s final report that the Board considered the differences between the potential locations for a private road and, in its discretion, decided the establishment of a private road where a current roadway already exists would cause the least injury to the surrounding private property.

Appellants emphatically challenged some of the Board’s findings of fact. Appellants specifically take exception to the Board’s findings that an alternate location for a private road was “overgrown,” had returned to its “natural state” and was “swampy.” Moreover, appellants asserted that this alternate location would in fact result in a shorter distance of travel to connect to a public road. Finally appellants argued that a taking of their property would severely impact their farmland and efforts to prevent soil erosion, while the above alternate route would be over property used only for recreational purposes.

Even if we accept these assertions as true, appellants still have not presented sufficient evidence to establish that the Board abused its discretion in finding that a private road over appellants’ property was necessary. See Driver v. Temple, 374 Pa.Super. at 396-98, 543 A.2d at 138 (holding the Board did not abuse its discretion by choosing one of three possible locations for laying out a private road). Therefore, I would affirm the Board’s findings simply because appellants have not met the burden required for this court to reverse the Board’s findings.

The appellants also argue that the Board erred in its determination of damages that appellee is required to pay prior to the final establishment of the private road. Specifically appellants contend that damages should be determined pursuant to Title 26, the Eminent Domain Code. Moreover, appellants assert that pursuant to the Eminent Domain Code appellee must present expert testimony regarding the damages sustained by the laying out of the private road. See 26 Pa.C.S.A. §§ 1-702, 1-705 (1964). According to the appellants, because the Board did not follow proper procedures to determine damages and because appellee did not present expert testimony on the issue of damages, the Board's determination of damages must be reconsidered.

The question whether the Eminent Domain Code is applicable to private road proceedings need not be answered to resolve the issues in this case. Based on the record and the wealth of case law, the evidence shows that the Board failed to follow proper procedures for determining damages in a private road condemnation case.

As noted above, the statutory provisions for laying out a private road state that damages shall be estimated as in public road cases. 36 P.S. § 2736. However, the provisions under Title 36 for laying out a public road simply provide that the viewers are to assess damages and report such a determination. 36 P.S. § 1881. Case law has supplemented this general statutory provision and has developed a consistent and well established procedure for calculating damages in public condemnation cases. The common law procedure for calculating damages in public road cases is to measure the difference between the fair market value of the entire property immediately before and immediately after the taking. See, e.g., Brown v. Commonwealth, 399 Pa. 156, 158, 159 A.2d 881, 882 (1960); Peterson v. Pittsburgh Public Parking Authority, 383 Pa. 383, 389, 119 A.2d 79, 82 (1956); Butler Water Co.'s Petition, 338 Pa. 282, 284, 13 A.2d 72, 73 (1940). Because there is no indication in the instant case that the Board determined damages by this rule, I would remand this matter for a proper determination of damages.

Finally, the majority notes that appellants asserted the appellee is no longer a party in interest in this matter because he sold his property. Appellants therefore contend that appellee’s original petition for a private road should be dismissed. As correctly noted by the majority, appellee has not had the opportunity to respond to appellants’ allegations. The majority also writes that if appellee is not the proper party to the petition, “it must be dismissed.” Majority Opinion, at 348. However, the majority does not explain whether the entire matter should be dismissed or whether the alleged new owner could be simply substituted for appellee. The issue is one of standing and should be resolved by the trial court in the first instance. Lanard & Axilbund, Inc. v. Muscara, 394 Pa.Super. 251, 258-60, 575 A.2d 615, 619 (1990). The better course in my view is to remand and permit the trial court to consider the question.

I, therefore, would remand for further consideration by the trial court on the questions of damages and standing.

      . A map of the parcels in question and the route chosen by the Board of View is attached as Exhibit "A”.

      . The trial court did not expressly pass upon Aldinger’s contention that he has an irrevocable license. The damages awarded by the Board of Viewers was simply confirmed.

      . We are aware of a court of common pleas decision holding that vacation of a public road does not automatically create private road rights. Whiting v. Solar, 23 Law.L.J. 20, 39 Pa.D. & C.2d 742 (1966). Without passing on the appropriateness of that decision, we hold today that prior existence of a roadbed is a factor to be considered as to the placement of a private road.

      . The Board must take into account four factors when determining the site for a private road: the shortest distance, best ground, least injury to private parties, and desire of the petitioners. 36 P.S. § 1785 (Purdon's Supp.1990). In this case, three of those factors support the Board's decision. The Board’s findings indicate that the route across the farm was chosen because of the swampy condition of the route across the Double Tree tract. The route chosen is the one requested by Aldinger. Least injury to private parties is a closer call, as I continue to believe that prime farmland should not be sacrificed for a private road. See, Driver, supra at 398-400, 543 A.2d at 139 (Olszewski, J., dissenting). In this case, however, the road is already in existence; the land at issue is not presently used for farming, despite the Zeaflas’ claims of future plans.

      . We are aware that the Commonwealth Court has held that the Eminent Domain Code does not apply to private road takings, deciding that the reference in 36 P.S. § 2735 is to the provisions for opening a public road which appear at 36 P.S. § 1781, et seq. Mattei, supra 54 Pa.Cmwlth. at 564-66, 422 A.2d at 901; Mandracchia, supra 133 Pa.Cmwlth. at 513 n. 1, 576 A.2d at 1183 n. 1. We, of course, are bound by the relevant Superior Court precedent. Further, we find that either approach yields substantially the same result as evidence of the fair market value of the land before and after the taking, even if not required by any applicable provision of the Eminent Domain Code, is the measure of damages in public road takings dictated by long-standing Pennsylvania precedent. See, Cummings v. Williamsport, 84 Pa. 472 (1877); Philadelphia Ball Club v. Philadelphia, 192 Pa. 632, 44 A. 265 (1899).

      . We note in passing that Aldinger claims that no damages are due the Zeaflas because he asserts that his permissive use of the roadway has become an irrevocable license. (Petitioner’s Memorandum on Damages at 4.) Assuming, arguendo, that Aldinger does have an irrevocable license, this is not dispositive as to the amount of damages. Just as we above distinguished the ephemeral nature of such a license from the permanent nature of a private road when discussing necessity, so too the difference between the private road and an irrevocable license is relevant to damages.

      . We also note that the qualifications of the remaining members of a Board of View may be prescribed by local or general rule. 42 Pa.C.S.A. § 2142 (Purdon’s Supp.1990). It is our measured opinion that the people of this Commonwealth are entitled to a minimum level of professional qualifications for all viewers, and that these should be uniform across the state. We encourage the legislature to carefully examine this area.

      . As noted by one commentator, the rule for measuring damages in public road cases is the difference in fair market value immediately before and immediately after the taking. The rule is “so well established by a long line of cases in Pennsylvania that citations seem unnecessary." P.H. Lewis, Eminent Domain in Pennsylvania, printed in Volume 26-29 of Purdon's Pennsylvania Statutes Annotated, at 32 (1958).

      . The majority notes that the commonwealth court has held that Title 26, the Eminent Domain Code is not applicable to private road cases. Majority Opinion, at 306-307 n. 5 (citing Mattei v. Huray, 54 Pa.Commw. 561, 564-66, 422 A.2d 899, 901 (1980); Mandracchia v. Stoney Creek Real Estate, 133 Pa.Commw. 510, 513 n. 1, 576 A.2d 1181, 1183 n. 1 (1990)). In Mattei the commonwealth court specifically considered the issue whether an appellant in a private road case was entitled to a jury determination of necessity of the road. Mattei, 54 Pa.Commw. at 562-64, 422 A.2d at 900. The court concluded that the provisions of the Eminent Domain Code addressing appeals from a Board of Viewers’ findings “are not applicable to this case." Id., 54 Pa.Commw. at 564-66, 422 A.2d at 901 (emphasis added). In Mandracchia, the commonwealth court further explained this conclusion by noting that the Eminent Domain Code was not applicable to private road cases "except by analogy or perhaps, necessity.” Mandracchia, 133 Pa.Commw. at 513 n. 1, 576 A.2d at 1182 n. 1.
      Because the private condemnation statutes do not provide a clear methodology for determining damages, reference to the Eminent Domain Code is not contrary to the above commonwealth court’s holdings. Moreover, my research reveals that the determination of damages pursuant to Title 36, the Eminent Domain Code (Title 26), and the common law each involve an application of the "before and after rule.”

      . This assertion was made by appellants outside of the record in an "Application for Relief” filed four days before oral argument.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    592 A.2d 353
    COMMONWEALTH of Pennsylvania v. Bonnie LEBO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 13, 1991.

      Michael G. Leonard, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for Com.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered in the Dauphin County Court of Common Pleas. We affirm.

On October 18, 1989, appellant Bonnie Jean Lebo was found guilty of two counts of unlawful delivery of a controlled substance and criminal conspiracy. Subsequently, appellant’s post-trial motions were denied and she was sentenced. This appeal followed.

The relevant facts in this case, as outlined by the lower court in its opinion dated August 22, 1990, are as follows:

On October 20, 1988, Detective Gregory S. Taylor, a detective with the Lower Paxton Township Police Department who was assigned to the Dauphin County Drug Task Force, met with police informant, John Malehorn, in the parking lot of the Halifax High School. Malehorn was searched, no controlled substances were found and Malehorn was given $100.00. They decided to go to the Halifax Hotel to attempt to purchase drugs from a female bartender named Wanda. They arrived at the Halifax Hotel and Malehorn approached [appellant]. Male-horn returned to Taylor and stated that he could get one gram of cocaine for $100.00. [Appellant] approached Taylor and Malehorn, explained that she needed money and Taylor paid $60.00 and Malehorn paid $40.00. [Appellant] walked over to her sister, Tina Paul, and gave Tina the money. Approximately twenty minutes later, a white male came into the bar, Tina left the bar with this man and returned approximately twenty-five minutes later. [Appellant] approached Tina and they walked over to a small alcove. Tina pulled something out of her pants pocket and shook hands with [appellant]. [Appellant] walked over to Malehorn, shook hands with him and the informant, in turn, shook hands with Detective Taylor. Taylor received a clear plastic bag with a white powder substance which was later identified as cocaine.
Taylor spoke with Malehorn on October 25, 1988 about returning to the Halifax Hotel for the purpose of meeting an unidentified white male to purchase Vs ounce of cocaine. The informant told Taylor that he was going out to dinner with [appellant] but that he would meet Taylor at 9:30 p.m. at the Halifax Hotel. When [appellant] and Malehorn arrived at the Halifax Hotel, Malehorn approached Taylor and stated that the white male, the subject of their attempted purchase, was not there, and indicated that he would attempt to purchase more cocaine from [appellant]. Malehorn approached [appellant] and asked her if she could get him an eight-ball of cocaine. She called her sister and the agreed upon price was $270.00. Taylor gave [appellant] $270.00 and [appellant] left the premises for approximately twenty minutes. She came back into the bar, approached Malehorn and shook hands with the informant. The informant shook hands with Taylor who received four small bags of a white substance which was identified as cocaine.

Appellant now raises the following queries for our review:

1. whether the actions of the police, by and through their informant, John Malehorn, constituted entrapment as a matter of law;
2. whether the statements made by the police informant to appellant during a dinner conversation were admissible as non-hearsay;
3. whether trial counsel was ineffective for failing to understand the nature of his client’s defense as well as his failure to call a necessary witness.

We reject these contentions for the reasons outlined below.

With regard to appellant’s first contention, we note that entrapment is defined as follows:

(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c)
of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment____

18 Pa.C.S.A. § 313. In short, the focus of an entrapment defense begins with a review of the relevant police conduct. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989).

Whether an “entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.” Commonwealth v. Clawson, 250 Pa.Super. 422, 425-26, 378 A.2d 1008, 1008 (citations omitted). To prevail as a matter of law, appellant must demonstrate that the evidence was so overwhelming that no reasonable jury could fail to find entrapment. Commonwealth v. Weiskerger, supra. Appellant fails to meet this burden of proof.

In this case, the lower court instructed the jury on the defense of entrapment. Appellant contends, however, that the court erred by failing to find that she was entrapped as a matter of law. Specifically, appellant argues that the Commonwealth manipulated “the bonds of friendship to lure an otherwise passive individual into criminal activity.” In support of this contention, appellant cites Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990) as dispositive. We disagree.

In Wright, supra, we found that the government conduct constituted entrapment since the informant feigned a friendship with a suspect in order to manipulate him into purchasing marijuana as a favor. This informant had previously entered a plea agreement with the Commonwealth: the informant agreed to gather information concerning drug dealing on the Penn State campus in exchange for a probationary sentence. Accordingly, the informant in Wright sought out appellant in that case with police approval in order to fulfill his end of the plea bargain.

Over a period of a few months, the informant in the Wright case visited the suspect’s apartment several times, sharing beer and marijuana, playing games and listening to music. Finally, the informant asked the suspect to purchase marijuana for him as a favor. The informant explained to the suspect that he could not make the purchase himself, a fabrication created by the police. In vacating the conviction, we found that the lower court erred in submitting the entrapment issue to the jury since the uncontroverted evidence clearly demonstrated that the Commonwealth improperly induced the suspect to purchase the marijuana pursuant to the strong bonds of friendship. Such is not the case here.

In the instant case, appellant implies that the Commonwealth manipulated “an observable romantic relationship between appellant and the informant” to unduly influence appellant into purchasing drugs. Our careful review of the record, however, fails to reveal that the informant’s relationship with appellant unduly influenced her with regard to the pertinent drug purchases.

On October 20, 1988, appellant attempted to secure cocaine for the informant after a five-minute conversation. Despite appellant’s protestations, our review fails to reveal a close or entrapment relationship between the two. While appellant testified at trial that she and the informant “hung out” at the same places, she also stated that they never “went places socially together.” More importantly, appellant explained that she only “saw [informant] around” “two or three times a year” over a four year period prior to the transaction of October 20, 1988. Given these parameters, we fail to find that the Commonwealth manipulated “the bonds of friendship to lure appellant into criminal activity” as in Wright, supra.

We also reject appellant’s entrapment argument with regard to the drug transaction which occurred on October 25, 1988. Unlike in Wright, the informant in this case did not socialize with appellant over a long period of time and feign friendship in order to obtain drugs. Instead, appellant provided the informant with drugs a mere five days after the parties’ first transaction. While the parties did go on a dinner date on October 25, this “date” does not lead one to the inescapable conclusion that appellant was entrapped as a result of the bonds of friendship. Accordingly, the lower court properly deemed the matter a question of fact and presented it to the jury.

Next, appellant argues that the lower court erred in refusing to permit her to testify as to her conversation with the informant during their dinner date on October 25, 1988. In this case, the informant was not called to testify at trial. In sum, appellant argues that the informant’s statements were admissible as non-hearsay. Although we agree with appellant concerning this precluded testimony, we find that the lower court’s exclusion constituted harmless error.

Hearsay is an out-of-court statement introduced into evidence to demonstrate the truth of the matter asserted. Commonwealth v. Poli, 264 Pa.Super. 1, 398 A.2d 718 (1979). Such statements are inadmissible absent certain exceptions. Id. However, “[when] a witness testifies that someone said something to him and the purpose is not to show that what was said was true but that the statement was made, the testimony is not hearsay but instead a ‘verbal act’.” Commonwealth v. Jones, 374 Pa.Super. 431, 435, 543 A.2d 548, 550 (1988) (citations omitted).

At trial, appellant hoped to establish that the Commonwealth, through the informer, improperly induced her into the aforementioned criminal activity. Appellant sought to prove that she participated in the drug transactions due to a feeling of obligation after her “date” with the informant. With regard to her conversation during the date, appellant attempted to testify that the informant told her that he was “broke” at the time of the transaction. This does not constitute hearsay: appellant did not seek to prove that appellant was “broke” but only that he uttered the statement. See Jones, supra. Unfortunately for appellant, however, we find that the lower court’s exclusion of the statement constituted harmless error.

In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), our supreme court stated that “an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Id., 476 Pa. at 406 n. 11, 383 A.2d at 162 n. 11. The burden of establishing that the error was harmless beyond a reasonable doubt lies with the Commonwealth. Id.

Error is considered to be harmless where: 1) the error did not prejudice the defendant or the prejudice was de minimis; or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Williams, 524 Pa. 404, 409, 573 A.2d 536, 538-39 (1990) (citations omitted).

Our review of the record reveals that the lower court permitted appellant great latitude with regard to her testimony concerning the parties’ conversation at the dinner date on October 25, 1988. Appellant stated that the informant, not she, had secured drugs and that she only pretended to sell the drugs. She explained that the object of this “scam” was to enable the informant to make more money from the sale of the drugs. As we noted supra, appellant testified that she felt obligated to the informant, he had bought her flowers and dinner, and had only helped him to secure the drugs as a favor. In light of this testimony, we find that the prejudice suffered by appellant was de minim-is since she was given ample opportunity to testify with regard to the informant’s alleged improper conduct. Accordingly, we find that the lower court’s exclusion of this testimony constituted harmless error.

Finally, appellant argues that trial counsel was ineffective for failing to call the informant as a witness. Appellant contends that such testimony would have established that the Commonwealth improperly induced her into the relevant criminal activity. We disagree.

Claims of ineffectiveness of counsel are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).

In order to demonstrate that her ineffectiveness claim is meritorious, appellant must establish: (1) the identity of the witness; (2) that trial counsel knew of his existence; (3) the material evidence that the witness would have provided; and (4) the manner in which the witness would have been helpful to her case. Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989). While she is able to meet the first two prongs of this test, appellant is unable to fulfill the final two requirements.

In her brief, appellant acknowledges that the informant’s testimony could have substantiated her version of the pertinent criminal incidents and thus strengthened her case. On the other hand, however, this argument has a two-pronged effect: the informant’s version of the incident may have refuted her story and weakened her case. Accordingly, appellant is unable to demonstrate the merit of this claim. Thus, we reject appellant’s ineffective assistance of counsel claim.

Judgment of sentence affirmed.

      . Appellant also states that counsel rendered constitutionally inadequate assistance due to a "failure to properly understand the law of entrapment." This argument appears to be based upon the presumption that trial counsel should have elicited more detailed testimony from appellant concerning the informant’s behavior during the parties’ dinner date. As we have already rejected appellant’s entrapment and hearsay arguments supra, however, we need not address this contention.


text:
    592 A.2d 687
    COMMONWEALTH of Pennsylvania v. Daniel Patrick MESCALL, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed June 6, 1991.

      Spero T. Lappas, Harrisburg, for appellant.
    Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for the Com., appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence pronounced on August 14, 1990. A jury convicted appellant of one count of robbery, one count of theft by unlawful taking, and one count of unauthorized use of an automobile. He was acquitted of another charge of simple assault. Trial counsel for appellant failed to file post-verdict motions on his behalf. This timely appeal followed.

The facts of this case are summarized as follows: Appellant, Daniel Patrick Mescall, married the complainant, Arlene Mescall in July of 1989. They resided in Dauphin County. Both parties testified that there were a plethora of domestic embroilments between them before and during the marriage. After one of these altercations on November 24, 1989, Mrs. Mescall left her husband. Because he would not give her an opportunity to pack her clothes, she wrote him a letter telling him that she was leaving him and requesting her clothes back.

On December 3,1989, Mrs. Mescall went to her husband’s house to get her clothes. Her husband was not at home. However, his father was there visiting and let her in. The two began to talk about the condition of her marriage to his son when appellant walked into the house. Another altercation ensued whereby appellant and his wife began struggling. In the course of the struggle, Mrs. Mescall hit her head on a glass cake plate thereby sustaining injuries. Also, during this struggle, appellant held down his wife’s hand while seizing her engagement ring from her other hand.

The evidence is conflicting as to the following course of events. Mrs. Mescall testified that she was so scared, she ran out of the house to drive home. She then testified that appellant pursued her, threw her out of her car and drove away in the car. In contrast, appellant testified that when she ran out, she had forgotten her car keys in the house. When she returned for the keys, he took them and stated he needed to use the car. After arguing further with Mrs. Mescall, appellant took the car and drove to Philadelphia. Appellant’s father corroborated appellant’s recollection of the events. Once in Philadelphia, he parked the car, left the keys inside and left the doors unlocked. Appellant testified that when he returned, the car was gone. He then stated that he boarded a train for Harrisburg, never reporting the car missing to the local authorities. A state police officer testified at trial that the car was eventually found in central Pennsylvania. The car had been completely destroyed by fire.

Appellant raises five issues for our review. All the claims allege that trial counsel was ineffective in his representation for the following reasons:

1. failing to file post-verdict motions;
2. failing to object to the admission into evidence of appellant’s prior bad acts;
3. failing to object to the trial court’s elimination of an element of robbery in his instructions to the jury.
4. failing to object to the court’s refusal to instruct the jury that the personal property in question may have been marital property;
5. failing to object to the admission into evidence that the automobile in question was found completely destroyed by fire.

We will discuss each of these issues seriatim.

Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989). The test for prejudice is “whether one can say with confidence that the jury would have returned a guilty verdict if counsel had provided effective assistance.” Commonwealth v. Groff, 378 Pa.Super. 353, 372-73, 548 A.2d 1237, 1247 (1988). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1989). Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989). A corollary to our three-prong test is that if any one of the requirements is not met by appellant, his claim of ineffectiveness must fail. With this standard in mind, we turn now to the merits of appellant’s claims.

Appellant claims that trial counsel was ineffective for failing to object to evidence of prior bad acts to which the complainant, Mrs. Mescall, testified. Assuming arguendo that appellant’s claim is of arguable merit, we fail to see how he was prejudiced by this testimony. Specifically, the testimony concerned prior acts of assaultive conduct on the part of appellant. Mrs. Mescall testified that appellant had physically abused her on previous occasions. Yet, despite this testimony, the jury acquitted appellant of simple assault. Appellant argues however, that had this evidence been properly excluded, the jury would have been more likely to acquit him of the other charges against him. We cannot agree. Even without this testimony, the jury had ample evidence before it to convict appellant of robbery, theft by unlawful taking and unauthorized use of an automobile. We therefore find that trial counsel was not ineffective for failing to object to this testimony.

Appellant next avers that trial counsel was ineffective for failing to object to the trial court’s elimination of one of the elements of robbery from the instructions to the jury. The information charges appellant with robbery of his wife’s engagement ring and her car. The evidence adduced at trial was sufficient to prove that appellant had robbed the victim of her ring, but insufficient to prove that he had robbed her of her car. Thus, in his instructions to the jury, the trial judge excluded the robbery of the car from deliberation and left the jury to consider the robbery of the ring only.

Appellant cites this court’s holding in Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533 (1979) that “when the court charges erroneously on an issue, and the defense case is absolutely dependent upon the jury’s correct understanding of that issue, there can be no reasonable basis for defense counsel’s failure to object.” Id., 267 Pa.Superior Ct. at 101, 406 A.2d at 538. Stago however, is inapposite. In that case, trial counsel was deemed ineffective for failing to object to an incomplete instruction for the charge of simple assault, and a lack of instructions on the charge of incest. The court explained that trial courts are required to adequately define the elements of crimes. Id.

Instantly, appellant does not attack the adequacy of the instructions for the charge of robbery. Instead he attacks the exclusion of the car from the jury’s consideration. In its simplest form, he argues that since he was charged with robbing his wife of both the car and the ring, he must have been found to have robbed her of both the ring and the car in order to be convicted. Appellant has not provided us with authority for this novel proposition, nor has our exhaustive research located any. Furthermore, the absurdity of his contention is clear. The fact that the prosecution could not meet its burden of proving robbery of the car does not eliminate the finding that he robbed his wife of her engagement ring. A robbery was committed. Since the jury was properly instructed as to the elements of robbery, we find appellant’s argument meritless.

Thirdly, appellant argues that trial counsel was ineffective for failing to object to a prejudicial statement made by the complainant during her direct testimony. The pertinent testimony found in the trial transcript is as follows:

A. (by complainant)
And I wrote in this letter, I asked a friend of his to at least let me have my clothes. His response to her was I hate all women.

N.T. 6/18/90 at 18 (emphasis added).

This statement is a textbook example of double hearsay. Packel & Poulin, Pennsylvania Evidence § 806 (1987). While the statement appellant made to the victim’s friend may have been an admission by a party, the friends statement to the victim was hearsay with no exception to allow its admission. Trial counsel failed to object to this statement. Nevertheless, appellant has not demonstrated how he was prejudiced by trial counsel’s dereliction. 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). Had this testimony been properly excluded, the jury would still have had sufficient evidence to convict appellant of the various crimes charged. Again, we are persuaded by the jury’s acquittal of appellant on the count of simple assault. The acquittal is inconsistent with appellant’s belief that the jury was inflamed by the statement. We therefore do not find counsel to be ineffective for failure to object.

Appellant further raises the propriety of trial counsel’s failure to object to the trial court’s refusal to instruct the jury on the issue of whether the personal property involved was marital property. In particular, appellant proffers that he may have had an interest in the personal property of his wife (i.e., the engagement ring and the car) and therefore, the issue of ownership should have been addressed by the jury. Appellant was charged with theft by unlawful taking and robbery. Robbery is simply defined as a theft committed by force or threat of force. 18 Pa.C.S.A. § 3701. Theft is further defined in this context as follows:

A person is guilty of theft if he unlawfully takes, or exercises control over, movable property of another with intent to deprive him thereof.

Id. § 3921 (emphasis added). “Property of another” is defined as:

[Pjroperty in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property____

Id. § 3901 (emphasis added). The statutory language is clear that the issue of whether appellant may have an interest in this property is irrelevant. He may still be found liable for infringing on his wife’s interest in this property. See 1 Pa.C.S.A. § 1903(a) (words and phrases shall be construed ... according to their common and approved usage).

Finally, appellant argues that trial counsel was ineffective for failing to object to testimony by Detective Joseph Datesman. The detective testified that he found the victim’s automobile on January 22, 1990 completely destroyed by fire. He further testified that there was no evidence that appellant destroyed the car. Appellant alleges that the evidence is irrelevant and diverts the attention of the jury away from the proper issues in the case. Even assuming arguendo that the evidence was improperly admitted and trial counsel had no reasonable basis not to object to the testimony, we find that appellant was not prejudiced by this testimony.

The effect of this testimony is to prove that appellant intended to deprive his wife of her car: a necessary element of theft. 18 Pa.C.S.A. § 3921(a). The jury would still have been within its right to convict appellant of theft of the automobile had this evidence not been admitted. Appellant testified that he left the car in Philadelphia unlocked with the keys in the car. Moreover, after the car was missing he never informed the police to recover the car, but merely returned to Harrisburg without mentioning the incident. This evidence alone demonstrates that appellant intended to deprive his wife of the car. Such is sufficient to convict appellant of theft. Finding that appellant’s claims are unsupported by the record, we find that trial counsel was not ineffective.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 3921.

      . Id. § 3928.

      . Id. § 2701.

      . After appellant filed notice of appeal to this court, he and the Commonwealth filed a joint motion requesting this court to remand the case for filing of post-verdict motions. By per curiam order dated, November 8, 1990, this motion was denied.

      . We find that the issues presented are properly before this court since this is the first opportunity for appellant to raise the ineffectiveness claims. Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982) (where appellant was first represented by different counsel, his ineffectiveness claims are properly before the court).

      . While we are cognizant that such a statement is inherently prejudicial, our review must be concerned with the resulting prejudice from trial counsel’s failure to object, not the evidentiary value of the statement itself.


author: POPOVICH, Judge:

text:
    592 A.2d 691
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald G. KAUFMANN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 1, 1991.
    Filed June 7, 1991.

      Ronald G. Kaufmann, pro se.
    Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.

      Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the September 4, 1990, order of the Court of Common Pleas of Montgomery County denying the Post Conviction Relief Act (PCRA) petition of the Appellant, Ronald Kaufmann. We reverse.

The facts of record indicate that the Appellant was charged in two separate informations: No. 2187-79 was filed July 13, 1979, and charged possession of a controlled substance (Count I) and possession with intent to manufacture or deliver a controlled substance (Count V); No. 2197-79 was filed July 5, 1979, and charged criminal conspiracy with regard to the Controlled Substance, Drug, Device and Cosmetic Act.

Both incidents involved the same undercover drug agent who enlisted the aid of the Appellant in purchasing cocaine from one Albert Dever, a/k/a Joseph Dever. The first incident took place on February 9, 1979, and resulted in the criminal conspiracy charge lodged at information No. 2197-79. The second act occurred on April 17, 1979, and concerned the undercover agent’s purchase of cocaine from the Appellant, which was obtained purportedly from Mr. Dever and resulted in information No. 2187-79.

The Appellant was tried on each information separately, resulting in his convictions for possession with intent to deliver at No. 2187-79 and criminal conspiracy at No. 2197-79.

On April 24, 1980, the Appellant appealed his judgment of sentence at No. 2197-79, but the appeal was withdrawn on August 13, 1981, pursuant to an agreement whereby the sentencing court consented to a bargain for concurrent sentences for each of the offenses. This would afford the Appellant the opportunity to have his sentences for criminal conspiracy (1-2 years imprisonment) and possession with intent to manufacture or deliver a controlled substance (1-2 years imprisonment) served concurrently with two other sentences entered by other judges in Montgomery County and required to be served consecutively. See Sentencing Hearing, 8/13/81.

Thereafter, by pro se petition filed under the PCRA, the Appellant questioned the effectiveness of his trial counsel in not seeking to consolidate for trial the charges listed at Nos. 2187-79 and 2197-79. He claimed this inaction by trial counsel violated his rights under 18 Pa.C.S. § 110 and Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). See PCRA petition dated August 9, 1990. The PCRA court disagreed and denied him both the aid of counsel and an arrest of judgment. The PCRA court did so because the Appellant’s previously filed post-trial motions were construed as an initial request for relief converting his August 9, 1990, PCRA petition into a second “bite at the apple” precluded by statute unless a “miscarriage of justice” was established by an “undermining of the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i) and (ii). No such allegation was found to have been made.

Secondly, the PCRA court held that the two convictions of the Appellant did not possess any “logical legal or factual” linkage requiring their consolidation at trial under Section 110 or Hude, supra. Accordingly, the relief requested was denied and this appeal was perfected pro se.

Before we respond to the claim of the Appellant, in which he challenges trial counsel’s stewardship in not seeking to arrest judgment since the two offenses arose from a single criminal episode for which he had been tried previously and convicted, we need to address the question of whether the denial of the Appellant’s request for the appointment of PCRA counsel was proper.

Under Pennsylvania law, a petitioner’s right to counsel under the PCRA, as well as its predecessor (the Post-Conviction Hearing Act (PCHA)), is established by rule of the Supreme Court. Cf. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927, 928 (1988). In particular, Pa. R.Crim.P. 1504(a) and the Comment thereto provide:

RULE 1504. APPOINTMENT OF COUNSEL; FORMA PAUPERIS
(a) When an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first motion for post-conviction collateral relief.
Comment
This rule replaces former Rule 1503. * * * Consistent with Pennsylvania post-conviction practice under former Rules 1503 and 1504, it is intended that counsel be appointed in every case in which a defendant has filed a motion for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent motions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has discretion to appoint counsel in any case when the interests of justice require it.

(Emphasis added in part) Rule 1504 needs to be viewed in light of Pa.R.Crim.P. 1507(a) and the Comment following it; to-wit:

RULE 1507. DISPOSITION WITHOUT HEARING
(a) The judge shall promptly review the motion, an answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 10 days of the date of the notice. The judge thereafter shall either order the motion dismissed, or grant leave to file an amended motion, or direct that the proceedings continue. * * * * * *
Comment
... Present Rule 1507 replaces former Rule 1504.
The judge is permitted, pursuant to paragraph (a), to summarily dismiss a motion for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the motion, the answer if any, and all other relevant information that is included in the record. If after this review, the judge determines that the motion is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the motion as provided herein.
He Ht * sjs * H<
See ... Rule 1504 with regard to the requirements for appointment of counsel in these cases.

(Emphasis added in part) Thus, we see that Rule 1507’s apparent unbridled authority, reserving to a judge the right to dismiss a petition for post-conviction collateral relief, is to be read in conjunction with Rule 1504’s entitlement to counsel by a petitioner who is indigent and seeks an initial review of a petition for post-conviction collateral relief.

The course we would pursue under the Post-Conviction Hearing Act, the forerunner to the PCRA, in the case at bar was clearly delineated in the law: No prior appeal(s); filing of a pro se petition for post-conviction collateral relief; indigent petitioner’s request for the assistance of counsel denied; and appeal perfected by petitioner in forma pauperis. Without citing a legion of cases ad infinitum, we note that the result to be reached under such a scenario as exists presently would be the vacation of the post-conviction hearing court’s order denying relief and remanding with instructions to afford the appellant the opportunity to be represented by counsel in filing an amended post-conviction hearing petition seeking collateral relief. See, e.g., Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987, 990-91 (1981) (Citing cases and to former Pa.R.Crim.P. 1503 and 1504).

Under the present Rules of Criminal Procedure, although we detect a variation vis-a-vis the previous rules governing post-conviction collateral matters, the substance of the law remains intact and necessitates our reversal of the PCRA order denying the Appellant his request for the appointment of counsel to aid him in his first PCRA petition. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981).

In Alexander, a plurality opinion written by Justice Larsen, the Court, albeit denouncing the proliferation of PCHA petitions filed by one litigant as an intolerable assault on the appellate process requiring judicial curtailment, endorsed the allowance of “at least one meaningful opportunity to have ... issues reviewed, at least in the context of an ineffectiveness claim.” 495 Pa. at 35, 432 A.2d at 186. Accord Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).

The 1989 version of Rule 1504(a) provides in graphic and unequivocal terms that an indigent defendant “shall” be appointed counsel to represent him in his “first motion for post-conviction collateral relief.” There is no condition precedent under Rule 1504(a) that the claim(s) raised by the petitioner pass an “arguably meritorious/reasonable basis for counsel’s inaction/prejudice” test to secure the appointment of counsel. This assessment is more appropriately left to the post-appointment of counsel stage. See, e.g., Commonwealth v. Harris, 381 Pa.Super. 206, 553 A.2d 428, 432-33 (1989); Commonwealth v. Keeney, 367 Pa.Super. 16, 532 A.2d 33 (1987); Hobson, supra; see also Turner, supra.

All the petitioner need show, to entitle him to an appointment of counsel in his PCRA endeavor, is an “inability” to afford to procure counsel and that the petition is his “first” seeking post-conviction collateral relief. See 1989 Comment to Rule 1504, wherein it is specifically provided that Rule 1504(a) is to be applied “[c]onsistent[ly] with Pennsylvania post-conviction practice under former Rules 1503 and 1504, [i.e.,] it is intended that counsel be appointed in every case in which a defendant has filed a motion for post-conviction collateral review for the first time and is unable to afford counsel or otherwise procure counsel.” (Emphasis added)

We do not read Rule 1507’s authority to dismiss summarily a PCRA petition to be exercised when an uncounseled petition is the first submitted by an indigent petitioner. This is consistent with the practice under former Rules 1503 and 1504, as made reference to in the 1989 Comment to Rule 1504. Likewise, case law interpreting the same has condemned consistently the summary denial of an indigent’s post-conviction collateral petition in the absence of counsel. See, e.g., Harris, supra; Hobson, supra.

Although the United States Supreme Court has held that there is no right under the United States Constitution to the appointment of counsel when mounting a collateral attack of a conviction, see Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), this does not translate into a preclusion of a state’s highest court form promulgating Rules of Criminal Procedure (see Pa.Const. Art. V, Sec. 10(c)) to avail an indigent the right to counsel under prescribed circumstances, as is the case in Pennsylvania via Rules 1504 and 1507. See Concurring Statement by Popovich, J., in Keeney, supra, 367 Pa.Super. at 22, 532 A.2d at 36.

We find that, in light of the past and present practice governing post-conviction collateral proceedings, a defendant has the right to the appointment of counsel to aid him in his efforts to obtain relief by way of the PCRA route where it is his “first” petition. Cf. Commonwealth v. Finley, supra (Indigent petitioners have the right to the assistance of counsel with their first PCHA petition). Accord Keeney, supra; 1989 version of Rule 1504(a) and Comment thereto. This has a salutary feature which was articulated by this Court in Commonwealth v. Harris, supra, 381 Pa.Super. at 214-16, 553 A.2d at 432, 433; namely:

Under Pennsylvania law a PCHA petitioner has the right to the assistance of court appointed counsel if petitioner is indigent, unless “a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented in proceedings thereon.” See Pa.R.Crim.P. 1503(a) [replaced by Rule 1504(a) on July 1, 1989]; Pa.R.Crim.P. 1504 [replaced by Rule 1507 on July 1, 1989]____
******
Appointment of counsel serves administrative as well as substantive interests. In Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967), our Supreme Court explained:
We pause to note that the mandatory appointment requirement is a salutary one and best compares with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967) [approved draft 1968]; ‘It is a waste of valuable judicial manpower and an efficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se____ Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.’
235 A.2d at 149 (citations omitted, emphasis added); see also Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). In Commonwealth v. Finley, supra, our Supreme Court stated succinctly, “[c]ounsel for a PCHA petitioner can more ably explore legal grounds for complaint, investigate underlying facts, articulate claims for relief, and promote efficient administration of justice.” 440 A.2d at 1184 (emphasis added); see also Commonwealth v. Holland, 496 Pa. 514, 437 A.2d 1159 (1981).
The importance of court-appointed counsel’s role in facilitating the efficient administration of justice cannot be overstated. Left to their own vices, or the dubious assistance of “jail-house lawyers,” under-educated prison inmates often file petitions more marked by voluminousness, creativity, and irrelevancy than by lucidity. See, e.g., Commonwealth v. Gaito, 211 Pa.Super. 404, 408-09, 419 A.2d 1208, 1211 (1980). Vast judicial resources are then squandered in efforts to decipher and dispose of such submissions. [Emphasis in original]

If we were to read the present Rule 1507(a) to authorize the summary dismissal of an initial pro se PCRA petition, then the language of present Rule 1504(a), mandating (“shall”) appointment of counsel to an indigent petitioner seeking relief for the first time by way of a post-conviction collateral proceeding, would be rendered nugatory.

We hold that the past practice under former Rules 1503 and 1504, which is specifically mentioned for guidance purposes in the Comment to present Rule 1504 and discussed supra, gives us direction and counsels in favor of reversing a summary dismissal of a pro se PCRA petition where appointment of an attorney is sought and denied.

If the body promulgating the Rules of criminal Procedure, i.e., the Pennsylvania Supreme Court through the Criminal Rules Committee, had intended to dispense with the assignment of counsel in post-conviction collateral proceedings, be it on the first occasion or merely one of a series of attempts to obtain post-conviction collateral relief, it could have dispensed with the present Rule 1504(a) and afforded the initial tribunal hearing the post-conviction collateral complaint the unbridled authority to dismiss any request for relief where it was found to be wholly frivolous.

The Pennsylvania Supreme Court chose not to do so. This is quite evident by its promulgation of present Rule 1504(a) and the Comment thereto, each of which has its origin in and rationale from its precursor (Post-Conviction Hearing Act) and the case law interpreting the same, which we find still viable on this point of disapproving summary dismissals of pro se post-conviction collateral petitions where counsel has been requested by an indigent formulating his first petition. See, e.g., Hobson, supra, and cases cited therein.

It is undisputed that the law has been revamped with the enactment of the PCRA and the adoption of new post-conviction collateral proceedings (Rule 1501 et seq.). Nonetheless, one constant remains as a holdover from the prior law: an indigent defendant shall be availed the opportunity to secure the appointment of counsel to aid in the perfection of his first petition seeking post-conviction collateral relief. See 1989 version of Rule 1504(a) and Comment thereto.

Once appointment has been made, counsel may seek to withdraw, after a thorough review of the record has been made, where non-frivolous issues justifying the pursuit of post-conviction collateral relief are lacking. See Turner, supra; Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213, 214 (1988) (en banc).

In line with our analysis of the law, we vacate the order of the PCRA court denying the Appellant’s request for the appointment of counsel, and, as a consequence thereof, the denial of the request for relief under the PCRA is reversed as well. A remand is in order for the appointment of PCRA counsel once the Appellant satisfies the PCRA court that he is indigent and the present petition is his first under the PCRA.

Order reversed; case remanded; jurisdiction relinquished.

      . See 42 Pa.C.S. § 9541 et seq. (Supp.1989).

      . To elaborate, in March of 1980, Judge Avrigian sentenced the Appellant to 5-10 years imprisonment. On April 14, 1980, Judge Lowe issued a sentence of 8 to 2lA years imprisonment to run consecutively to Judge Avrigian’s term of imprisonment. On the same day as Judge Lowe’s sentence, Judge Davenport imposed a 1-2-year sentence for conviction at No. 2197-79 to run consecutively to Judge Lowe’s incarceration term.
      The Appellant’s agreement to withdraw his appeal before the Superi- or Court for the judgment of sentence issued at No. 2197-79 caused Judge Davenport to reconsider his initial 1-2-year consecutive sentence of April 14, 1980. Once the appeal had been withdrawn, the 1-2-year consecutive sentence would be made to run concurrently with the sentences of Judges Lowe and Avrigian.
      Because Judge Moss had died prior to imposing a sentence for the Appellant's conviction at No. 2187-79, Judge Davenport would perform that function and agreed to enter a 1-2-year concurrent sentence if the Appellant withdrew his appeal at No. 2197-79 with Superior Court. Appellant agreed to do so and sentence was entered thereafter in absentia to comply with the bargained-for sentences of 1-2-years each (at Nos. 2187-79 and 2197-79) being served concurrently to the sentences imposed by Judges Lowe and Avrigian.

      . See 42 Pa.C.S. § 9541 et seq. (1982) (repealed).

      . Former Rules 1503 and 1504 provided in relevant part:
      Rule 1503. Appointment of Counsel
      (a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint counsel to represent a petitioner whenever the interests of justice require it.
      Rule 1504. Summary Disposition

        Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.
      This same language appears in the 1989 Comment to Rule 1507.

      . To the PCRA court’s remarks that the Appellant’s PCRA petition was his second, given that he had filed and was denied his post-verdict motions for a new trial and/or in arrest of judgment, we find the statement to be untenable under either “finally litigated” or “waiver” grounds.
      For example, there is no indication that issues not raised in post-trial motions can be labelled “finally litigated” under the PCRA. See 42 Pa.C.S. § 9544(a) (Supp.1989). As for whether the Appellant has “waived" his right to challenge his judgment of sentence under a Section 110 argument, a point made mention of (fleetingly) by the Commonwealth without discussion in its brief to us at page 4, we quote with approval this Court’s response to a similar argument in dealing with the Post-Conviction Hearing Act (PCHA); namely:
      Moreover, even if arguendo the contention of counsel's ineffectiveness were deemed waived, the lower court would still be unable to dismiss summarily a pro se petition on such ground. Commonwealth v. Minnick, supra [436 Pa. 42, 258 A.2d 515 (1969) ]; see Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980) (court erred in dismissing initial PCHA petition without a hearing where counsel was not appointed to assist petitioner in the proceedings); Commonwealth v. Miller, supra [275 Pa.Super. 236, 418 A.2d 700 (1980) ] (summary dismissal of uncounseled petition without appointment of counsel by court is error); Commonwealth v. Cochran, 261 Pa.Super. 236, 396 A.2d 375 (1978) (court below erred in summarily dismissing petitioner’s uncounseled petition, even if it were the third one filed); see also Commonwealth v. Schmidt, 436 Pa. 139, 259 A.2d 460 (1969) (summary disposition of a petition, without appointing counsel, is permitted only “‘when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he ... was represented by counsel in proceedings thereon.’ Pa.R.Crim.P. 1504.”); cf. Commonwealth v. Mitchell, 266 Pa.Super. 45, 402 A.2d 1070 (1979) (issues waived by failure to raise them in prior PCHA petition filed by petitioner, where counsel was appointed and a hearing held).
      Since we find that in the case sub judice the dismissal of the appellant’s petition without the appointment of counsel was error, because the issue alleged therein was neither finally litigated nor waived, we remand to the lower court without reaching the merits of the issue. Commonwealth v. Miller, supra (appellate court reviewed the record and agreed with the lower court that the allegations in the petition were completely lacking in merit. Nevertheless, the summary dismissal of the PCHA petition without appointment of counsel being error, the case was remanded). Such action is consistent with our prior case law. As was stated by our Supreme Court in Commonwealth v. Adams, 465 Pa. 389, 350 A.2d 820 (1976):
      “Without reaching the merits of appellant’s substantive claims, we hold that the summary dismissal of the petition in this case[, which dealt with guilty pleas from which no appeal was taken,] without appointment of counsel was error. Pa.R.Crim.P. 1503(a) suspending in part and superseding Section 12 of the Post-Conviction Hearing Act, places an affirmative duty on the hearing court to appoint counsel for an indigent petitioner before disposition of his petition. Commonwealth v. Schmidt [supra ]; accord, Commonwealth v. Conner, 462 Pa. 282, 341 A.2d 79 (1975); Commonwealth

        v. Minnick, [supra ]. Summary disposition of a petition, without appointment of counsel, is permitted only ‘when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he ... was represented by counsel in proceedings thereon.’ Pa.RXrim.P. 1504. See Commonwealth v. Smith, 459 Pa. 583, 330 A.2d 851 (1975); Commonwealth v. Haynes, 234 Pa.Super. 556, 340 A.2d 462 (1975).” (Footnote omitted) Id. [465 A.2d] at 391, 350 A.2d at 821-22. Accord Commonwealth v. Miller, supra (direct appeal affirmed and allocatur denied prior to filing of uncounseled petition which was summarily denied); see also Commonwealth v. McClinton, supra; [Commonwealth v.] Alvarado, supra [488 Pa. 250, 412 A.2d 492 (1980) ]; Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978); Commonwealth v. Irons, 254 Pa.Super. 251, 385 A.2d 1004 (1978); Commonwealth v. Bostic, 251 Pa.Super. 224, 380 A.2d 459 (1977); see generally Commonwealth v. Padgett, 485 Pa. 386, 402 A.2d 1016 (1979).

        Commonwealth v. Hobson, supra, 286 Pa.Super. at 276-77, 428 A.2d at 990-91.
      The fact that we cite cases dealing with the PCHA’s waiver concept is of no moment since the same precept has been retained by the PCRA. Commonwealth v. Davis, 393 Pa.Super. 88, 573 A.2d 1101, 1105 n. 4 (1990) (Denial of a PCRA petition was affirmed on appeal because the trial record indicated that the Appellant "waived” his right to appeal knowingly and intelligently; however, the request for the appointment of counsel had been complied with prior to the denial of the petition for PCRA relief by the PCRA court).

      Instantly, although the Appellant indicated he was giving up his right to appeal any "illegality” during the sentencing hearing in exchange for a more lenient sentence, which the sentencing court agreed to impose, the distinction between Davis, supra, and the case at bar is that the petitioner was granted the aid of counsel in formulating his PCRA petition in Davis, supra, a factor which undermines the PCRA court’s ability to deny summarily the Appellant’s request for PCRA relief instantly. See generally Commonwealth v. Hobson, supra; 1989 version of Pa.R.Crim.P. 1504(a).

      . Instantly, the Appellant has yet to have his judgments of sentence for possession and criminal conspiracy examined on appeal, nor has he pursued review of his convictions in the federal courts or under the former Post-Conviction Hearing Act. Accordingly, the Appellant’s pro se PCRA petition was his first attempt at having his complaints reviewed.
      It is not for this Court or the PCRA court to make an initial inquiry as to the merit of the claim(s) proffered, especially is this so given the Appellant’s request for the appointment of counsel to assist him in framing the issue(s), if any there be, to cause him to obtain post-conviction collateral relief.

        Once counsel has been appointed, provided Appellant satisfies the criteria set forth in present Rule 1504(a), and a supplemental petition is submitted or a brief for withdrawal under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) is submitted, then it will be the appropriate stage at which to evaluate the contentions or the absence thereof in deciding what action to take with regard to the PCRA petition of the Appellant. All factors, e.g., waiver, will come into play in determining whether the claims have been preserved and/or warrant the relief requested.