author: OLSZEWSKI, Judge:

text:
    621 A.2d 136
    COMMONWEALTH of Pennsylvania v. Miklos HOMOKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1992.
    Filed Feb. 9, 1993.

      Leonard M. Mellon, Easton, for appellant.
    John M. Morganelli, Dist. Atty., Bethlehem, for Com., appellee.
    Before OLSZEWSKI, JOHNSON and CERCONE, JJ.
   OLSZEWSKI, Judge:

After entering a guilty plea on October 17, 1990, appellant Miklos Homoki was sentenced to two concurrent six-to-twelvemonth terms of imprisonment for possession of methamphetamine and one consecutive term of six to twelve months for possession of heroin. These sentences were suspended, and Homoki was sentenced to an aggregate term of eighteen months’ probation. On March 25, 1991, Northampton County Probation Officer Mark Mazziotta discovered a large knife and a small quantity of cocaine in Homoki’s apartment. Following a probation revocation hearing on April 12, 1991, the trial court concluded that Homoki had violated the conditions of his probation and reimposed the original prison sentence. On appeal, we vacated the judgment of sentence and remanded on grounds that the trial court had failed to conduct separate Gagnon I and II [411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)] hearings. Commonwealth v. Miklos Homoki, 413 Pa.Super. 490, 605 A.2d 829 (1992). The complex procedural history which followed culminated in the judgment of sentence entered April 24, 1992, from which Homoki presently appeals. We affirm.

On remand for a second revocation hearing, Homoki alleged that the evidence should be suppressed because Officer Mazziotta did not have reasonable suspicion to search his apartment. The court concluded that Homoki was estopped from litigating the motion since it had already been raised in a separate action. Homoki had alleged the same suppression issue after being charged with possession of cocaine in a criminal matter arising out of the same facts. The original motion was later withdrawn as part of a negotiated plea to the possession charge. Three months later, Homoki claims, he became aware that this plea could preclude him from raising the suppression issue on remand if his appeal for a new probation hearing was granted. Homoki thus filed a pro se motion to withdraw his guilty plea and a PCRA petition alleging ineffective assistance of counsel.

The trial court was aware that the motion to withdraw and PCRA petition were pending when it denied hearing the suppression motion. Nevertheless, the suppression motion was denied and Homoki was found to have violated his probation. He was sentenced to an additional thirty days’ imprisonment on each of the original charges before he could be eligible for parole. Moreover, as a condition of his parole, Homoki was prohibited from taking any additional medication for his pre-existing medical condition than was currently prescribed. This condition was imposed in light of Homoki’s history of prescription medication abuse. Homoki filed a motion for reconsideration of this sentence and post-trial relief requesting the court to reconsider its determination that he was collaterally estopped from litigating the merits of the suppression issue. He also requested that the court vacate the limitation imposed on his choice of medical treatment. The motion was denied. The present appeal followed.

In his first claim, Homoki argues that the trial court erred in denying his motion to suppress on the basis of collateral estoppel. At the outset, we note that the doctrine of collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be relitigated between the parties in any future lawsuit.” Commonwealth v. Todd, 348 Pa.Super. 453, 502 A.2d 631 (1985). Insofar as Homoki argues that the doctrine of collateral estoppel does not apply to the present matter, we agree. The entry of the plea could not properly be considered a final determination on the merits of the suppression issue since the motion to suppress was never litigated.

Bearing in mind, however, that appellant was before the court for a determination of whether his probation should be revoked, we find that the trial court did not err in refusing to conduct a suppression hearing. The Supreme Court has emphasized that,

there is no thought to equate [the revocation hearing] to a criminal prosecution in any sense; it is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits and other material that would not be admissible in an adversary criminal trial.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). Indeed, parolees and probationers have a diminished expectation of privacy due to their court supervision status. Commonwealth v. Brown, 240 Pa.Super. 190, 361 A.2d 846 (1976). Accordingly, the trial judge properly surmised that even if Homoki was granted leave to withdraw the guilty plea to the criminal charges and prevailed on the first motion to suppress, the revocation court could have still considered the evidence. See Commonwealth v. Donato, 353 Pa.Super. 37, 508 A.2d 1256 (1986).

Contrary to Homoki’s contention, the trial court had no obligation to postpone ruling on the suppression motion in the present action until resolution of Homoki’s motion to withdraw the plea in the related criminal charges.

It is well settled that a probation violation hearing may be conducted prior to a trial for the criminal charges based on the same activities. Nor is the revocation of probation and the imposition of a prison sentence restricted to a finding that a subsequent criminal act has been committed by the probationer during the term of the probation. A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct.

Commonwealth v. Brown, 503 Pa. 514, 523-524, 469 A.2d 1371, 1375 (1983). Accordingly, the probation hearing court is not bound by the outcome or disposition of the related criminal action. Therefore, we discern no error of law in the trial court’s refusal to hear the suppression motion.

Moreover, while it is not our position to consider the viability of any suppression argument Homoki may have presented, our reading of the record indicates that it would not have had merit. It is well established that a probation or parole officer is not required to have probable cause to search the dwelling of an individual under supervision. Brown, supra. In Commonwealth v. Edwards, 400 Pa.Super. 197, 583 A.2d 445 (1990), we held that a parole officer may search the belongings of a parolee to ensure that they do not conceal evidence of a violation of parole. Here, the probation officer who discovered the knife and cocaine in Homoki’s apartment was legitimately present for the purpose of supervising Homoki’s probation. After the probation officer observed the weapon in plain view, he conducted a search of the surrounding area and discovered the substance which he suspected to be cocaine. Given these facts, we would conclude that Homoki’s limited Fourth Amendment rights were not offended.

In his second claim of error, Homoki argues that the parole condition restricting his right to choose medical treatment for a pre-existing back injury is unconstitutional and constitutes an abuse of discretion. Specifically, the condition restricts his consumption of prescription medication for the back injury to those dispensed to him while he was incarcerated. Maintaining that the restriction was only imposed to avoid the expense of additional tests to monitor him for drug abuse, Homoki contends the condition has no legitimate basis. We disagree.

“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey, 408 U.S. at 477, 92 S.Ct. at 2598. Parolees are in a position different from the general population because they are still subject to an extant term of imprisonment and are the focus of society’s rehabilitative efforts. Id.; Commonwealth v. Edwards, 400 Pa.Super. 197, 583 A.2d 445 (1990). Accordingly, parolees are subjected to certain conditions which restrict “their activities substantially beyond the ordinary restrictions imposed by law on private citizens.” Edwards at 201, 583 A.2d at 447. Although the offender’s freedom may be substantially restricted, the sentencing judge is vested with broad powers to fashion appropriate conditions of parole where they are intended to effectuate his rehabilitation and reintegration into society as a law-abiding citizen. Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990) (relating to probation).

The trial judge concluded that the condition imposed on Homoki’s medical treatment was necessary to control Homoki’s behavior and effectuate a successful release. We agree with this finding. At the original sentencing hearing, Homoki reported a twenty-year history of heroin and prescription medication abuse. (N.T., 10/17/91 at 7-10.) As the trial judge explained,

[t]he limitation at issue was imposed in an effort to address the appellant’s long history of abuse of not only controlled substances, but also of drugs obtained by prescription and his denial of the need for rehabilitation. This court imposed the prescription drug limitation to emphasize that should the appellant get one or more physicians to prescribe the same or multiple prescription drugs unnecessarily, such conduct will be considered a violation of the terms of his parole. The condition of his parole is in no way intended to restrict the appellant’s right to seek and receive appropriate medical treatment from a physician of his choice for either his current medical condition (which he alleges is under control with minimal medication), or any new medical conditions which may arise.

Trial court opinion, at 6-7.

Moreover, Homoki does not establish that the prohibited medications are essential to his welfare. Rather he argues that the condition is unconstitutional and overly broad because “if [he] developed an adverse reaction to his current medications, or they lost their effectiveness, he could not be prescribed alternatives.” Brief for appellant, at p. 13. He also argues that if his physician were to determine that another medication would be better or more effective, he would be precluded from utilizing the more suitable alternative. Since Homoki’s arguments demonstrate only the possibility of harm, and not actual harm, his arguments are not ripe. We will not attempt to resolve constitutional issues unless the specific issue is before us and the resolution of the issue is absolutely necessary to the decision of the case. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701, 707 (1976). Given Homoki’s persistent drug abuse history and his failure to conform to the conditions of probation originally imposed, we find no abuse of discretion in that the instant restriction was intended to enforce legitimate probationary aims.

For the foregoing reasons, the judgment of sentence is affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    621 A.2d 140
    MUTUAL INDUSTRIES, INC., Appellee, v. Herman P. WEINBERG, Appellant v. Erwin L. PINCUS, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1992.
    Filed March 1, 1993.

      Michael E. Burns, Bethleham, for appellant.
    Arthur W. Lefco, Philadelphia, for appellee Pincus.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge.

This case involves an appeal of the May 7, 1992, order sustaining the preliminary objections of the appellee, Erwin L. Pincus, to the motion to join him as an additional defendant by the appellant, Herman P. Weinberg. We affirm.

The record discloses that, on April 23, 1991, Mutual Industries, Inc. filed a complaint for legal malpractice against the appellant. Mutual alleged that it had hired the appellant for legal advice in connection with its purchase of the stock of Nachman Industries, Inc., which was to be accomplished by way of a Stock Purchase Agreement in November, 1983. At this same time, Nachman had a collective bargaining agreement with the International Ladies’ Garment Workers’ Union (ILGWU) requiring it to make contributions to ILGWU’s National Retirement Fund as an employer under the Employee Retirement Income Security Act of 1974.

Also, because of experiencing financial difficulty, Nachman filed a petition in bankruptcy under Chapter 11, which, ultimately, was unsuccessful and resulted in a cessation of its business and exposure to a suit by the trustees of the Fund for “withdrawal liability” pursuant to 29 U.S.C. § 1381(a). A default judgment was entered in favor of the Fund and against Nachman for $247,362.77 plus interest.

When Nachman did not satisfy the judgment, suit was instituted against Mutual as the successor in interest to the Nachman operation. Mutual, in turn, initiated suit against Weinberg on grounds of negligence (for failure to advise it of the “withdrawal liability” consequences to the Stock Purchase Agreement), breach of contract (in not performing legal services in a competent manner resulting in exposing Mutual to liability) and contribution and indemnification (to Mutual by Weinberg if it was found to be liable to the Fund).

On December 16, 1991, Weinberg filed a complaint joining as an additional defendant, Erwin L. Pincus, on the basis that prior to, at the time of, and subsequent to the execution of the Stock Purchase Agreement, Pincus was “active in rendering legal advice to Mutual "with respect to the financial condition and operation of Nachman Industries, including the advisability of acquiring the company.” Paragraph 6. And any liability flowing from the Stock Purchase Agreement was the sole responsibility of Pincus in “failing to advise Mutual of the potential withdrawal liability which he knew, or should have known existed.... ” Paragraph 7.

Weinberg denied any liability to Mutual, but Mutual alleged that Weinberg was retained “to represent it in all matters relating to Mutual’s conditional purchase of the stock of Nachman Industries, Inc. ... and relied upon Weinberg alone to advise it of risks arising from that transaction.” Paragraph 29.

The appellant’s petition for joinder of additional defendant Pincus being uncontested, it was granted on November 12, 1991. In an addendum attached thereto, the appellant asserted that Pincus, in testimony given “in connection with the claims against Nachman ... [,] was actively advising Mutual with respect ... to the execution of the Stock Purchase Agreement on November 9, 1983.” Paragraph 5. It further averred that the suit was in its early stages, e.g., no depositions had been taken, thus no party would be prejudiced as a result of the joinder of Pincus as an additional defendant.

On March 6, 1992, Pincus’ preliminary objections to the appellant/defendant’s complaint were filed alleging (1) no “good cause” was shown by the appellant for the later joinder (in excess of six (6) months) in contravention of Rule 2253), and (2) no “actual loss” having been suffered by Mutual as a result of the appellant’s alleged breach of contract or negligence since the underlying action against Mutual had not been concluded. Therefore, dismissal for failure to state a cause of action upon which relief could be granted was sought.

In the memorandum of law of the additional defendant, reference was made to the appellant’s failure to “demonstrate” good cause for the delay in joining the additional defendant. The only mention of excuse for the delay was the mere citation of 8 Goodrich-Amram 2d, § 2253:3:1. “Notwithstanding the citation, defendant provide[d] no explanation, reasonable or otherwise, for the delay.” Page 2. Further, the additional defendant noted the appellant’s discussion of the deposition of Pincus, which was taken with regard to the underlying case against Mutual by the trustees of the union on June 27, 1991, a deposition at which the appellant was present. Yet, argued the additional defendant, “[n]o explanation was given for any delay thereafter for joining the additional defendant.” Page 3.

Weinberg filed an answer to the additional defendant’s preliminary objections and memorandum of law in which he alleged that approximately five months had elapsed after expiration of the sixty (60) days permissible under Rule 2253. This, he averred, was “necessary to permit an investigation of the underlying facts in the case[ because ojriginally, it was believed that Pincus’ involvement was solely related to the filing of a chapter 11 petition with the Bankruptcy Court.”

In addition, it originally appeared that Pincus was retained by Nachman Industries and represented Nachman solely. Fuller development of the facts showed otherwise. Through interviews and examination of file documents, it became clear that Pincus was in reality retained by Mutual and was paid by Mutual for legal services prior to the acquisi tion agreement. In addition, it appears that Pincus conferred extensively with representatives of Mutual regarding the advisability of acquiring Nachman. In these circumstances, a reasonable justification for the delay certainly existed and disclosed facts which would render Pincus alone liable, liable with, or liable over to defendant in the case.
In addition, late joinder in this matter will cause no unfair prejudice to Pincus. No depositions have been taken thus far in the case. No witnesses are known to have died or left the jurisdiction in the intervening period. The documentary evidence which exists can readily be made available for review by Pincus and/or his counsel. Accordingly, late joinder is proper in the case.

Page 5 (Emphasis added).

The additional defendant’s preliminary objections were granted by order dated April 20,1992. A motion for reconsideration was filed and denied. This appeal followed and questions the court’s sustaining of the preliminary objections of the appellee for the defendant’s failure to set forth “good cause” for a late joinder of the appellee as an additional defendant.

In this jurisdiction, an additional defendant may be joined no later than sixty (60) days after service upon the original defendant of the initial pleading “unless such filing is allowed by the court upon cause shown.” Pa.R.Civ.P. 2253. Whether there is “cause shown” sufficient to allow late joinder of an additional defendant is a matter within the discretion of the court, and its discretion will not be reversed absent an abuse of discretion. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970).

Our review of the documents of record reveals that the information which prompted the appellant to seek joinder of the appellee was in his (appellant’s) possession at all times relevant to the calculation of the time-frame provided for under Rule 2253. Especially is this evidenced from a reading of the appellant’s memorandum of law in support of his answer to the appellee’s preliminary objections, which acknowledges that no depositions had been taken in the case and that examination of the file documents, which were purportedly in the possession of the appellant since they would be made available to the appellee upon request, played a role in deciding to seek joinder.

However, no justification is given as to why a “fuller development” of the facts, through “interviews” (of whom we do not know) and examination of the appellant’s own files, could not have been undertaken sooner or why it took approximately six (6) months after the expiration of the sixty (60) days following the filing of the original complaint to seek joinder. This is fatal. See DiLauro v. One Bala Avenue Associates, 357 Pa.Super. 209, 515 A.2d 939 (1986) (One of the criterion that needs to be satisfied to allow later joinder is the petitioner’s responsibility to present “some reasonable justification or excuse for the delay”).

The appellant’s general allegations of “good cause”, without any substantiation thereof, undermines his request for the relief requested. Contrast Riccobono v. Keystone Helecopter, 352 Pa.Super. 186, 507 A.2d 834 (1986). Therefore, we affirm the court’s order for the appellant’s failure to present “good cause” to justify the six-month delay in seeking to join the appellee. See Lower Court Opinion at 2.

Order affirmed.

      . This case involves a final, appealable order. See Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985).

      . The appellant’s contention that the complexity of the case justified a delay in seeking joinder, when examined in the context of the cause sued upon, does not withstand the light of scrutiny.
      The complaint filed by Mutual alleged a straightforward legal malpractice suit grounded upon the Stock Purchase Agreement, drafted by the appellant, for the buy-out of Nachman by Mutual. There was no assertion on the part of the appellant that discovery was necessary to uncover the attorney-client relationship between Mutual and the appellee, that Mutual possessed information that was not disclosed until well into the suit concerning the issue of legal representation or at what point he learned of this attorney-client relationship sufficient to trigger in his mind that a potential indemnification defense could be asserted. We are left in the dark on these matters.
      Reference is made that the appellant did not learn of the association between Mutual and the appellee until the deposition of the latter, in a suit involving the trustees of the union, on June 27, 1991. However, even if such were the case, the appellant fails to advise us why it took six (6) months thereafter to seek joinder. See Appellee’s Brief at 8.

      . For the first time on appeal, the appellant states that he had to hire an expert to assist him in his efforts to evaluate the appellee’s potential exposure to liability. This point, having not been proffered below, is deemed waived for appeal-consideration purposes. See Vaskie v. West American Insurance Co., 383 Pa.Super. 76, 556 A.2d 436, 440-41 (1989).


author: TAMILIA, Judge.

text:
    621 A.2d 144
    Fern DYE for Vicki McCOY, a Minor v. Alan McCOY and Rose Awman, Appellants.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed March 2, 1993.

      Neil Leibman, Bala Cynwyd, for appellants.
    Jacqueline M. Morley, Feasterville, for appellee.
    Before OLSZEWSKI, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

Alan McCoy and Rose Awman, his girlfriend, appeal from the March 16, 1992 Protection From Abuse (PFA) Order enjoining them for one year from contact with McCoy’s minor child, Vicki McCoy. The child’s mother, appellee Fern Dye, requested protection for her child when Vicki returned home from a weekend visit with McCoy with a scratch on her nose, which Vicki testified was the result of her father striking her across the face with a belt buckle, and a visible handprint on her face, a consequence of an unprovoked slap by Awman. Dye had initially received a temporary ex parte PFA Order on February 19, 1992 which, after the March 16, 1992 hearing, was extended to remain in effect until March 16, 1993. The court also stated on the record the February 24, 1992 custody Order, issued by a judge other than the one presiding over this PFA proceeding, was to remain in effect.

Appellants argue there was insufficient evidence to justify the PFA Order and the actual Order differed materially from the oral summation issued from the bench on the day of the hearing. Appellants’ argument there was insufficient evidence to warrant the issuance of a PFA Order because there was no specific finding they caused Vicki substantial pain is totally devoid of merit.

The Protection From Abuse Act, 23 Pa.C.S. § 6102 et seq., provides an Order may be issued “to bring about a cessation of abuse of the plaintiff or minor children.” Id., § 6108(a). The Order may, inter alia, direct the defendants to refrain from abusing the victim and prohibit any contact. Id. Abuse is defined by the Act to include intentionally, knowingly or recklessly causing bodily injury, placing by physical menace another in fear of imminent serious bodily injury and physically abusing minor children. Id., § 6102(a)(1), (2) and (4).

At the March 16, 1992 hearing conducted to address the allegations of abuse, testimony was received from the appellee, the child and the child’s aunt, Cathlene Reebanker, to whom Vicki had related the instances of abuse. The court conducted a voir dire examination of five-year old Vicki and found she was a competent witness, aware of the concepts of truth and falsity. Vicki testified that while she sat watching cartoons, her father struck her across the nose with his belt buckle and appellee Awman slapped her face. Vicki stated when she returned home she told her mother about the unprovoked incident and indicated she did not wish to visit her father at the next scheduled time. Dye testified she immediately sought an ex parte PFA Order.

Based on Dye’s and Vicki’s demeanor and manner, the court found their testimony credible and found the injuries inflicted by appellants constituted bodily injury -within the meaning of the Act. The court also specifically found the testimony of the appellants incredible. Based on these findings the issuance of the PFA Order was appropriate. See Williamson v. Williamson, 402 Pa.Super. 276, 586 A.2d 967 (1991). (Finder of fact is entitled to weigh the evidence presented, assess its credibility and believe all, part or none of what is presented.)

Next, appellant argues the monologue given by the court at the conclusion of the hearing was at variance with the March 16, 1992 written Order. Specifically, appellants argue the judge’s oral summation did not bar them from having contact with the child, while the written Order precluded contact.

Our review of the court’s verbal summation and that of the written Order reveals no conflict and appellants are not entitled to relief. However, because we disagree with the court’s statement it did not, pursuant to 23 Pa.C.S. § 6108(a)(4), have authority to alter the February 24, 1992 custody Order, and because we are concerned solely with the best interests of the minor child, we are constrained to remand this case for further consideration. Section 6108(a)(4) states, in pertinent part, “[t]he court shall consider, and may impose on a custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse.” Moreover, because we are unfamiliar with the terms of the February 24, 1992 custody Order, we are unable to determine whether its continuation would be in direct conflict with the one year PFA Order. Indeed, should the custody Order grant McCoy visitation with or partial custody of Vicki, the PFA Order would be rendered a nullity. This is not a permissible resolution of these actions.

A PFA Order may not impose other than an emergency support or custody Order pursuant to section 6108, Relief, (a)(4) regarding custody and (a)(5) regarding support. It appears, however, that section 6108(a)(4) precludes a custody award, pre-existing or following the PFA Order, from nullifying the PFA Order as its purpose is to assure the safety of a child or children above and beyond any other Orders or relationships involving the children. To hold otherwise would have the effect of emasculating the central and extraordinary feature of the PFA which is to prospectively control and prevent domestic violence. Commonwealth v. Smith, 380 Pa.Super. 484, 552 A.2d 292 (1988); Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (1985) (primary goal of PFA was not retrospective punishment but rather, advance prevention of physical and sexual abuse). The duration of a PFA Order may not be extended beyond one year in the absence of further abuse, however, either party may petition the court to amend the Order at any time. 23 Pa.C.S. § 6108(b), Duration and amendment of order or agreement. It is this amendment process which may be utilized to determine whether a more liberal custody/visitation Order may become operative.

Based on the foregoing reasons of law and fact, therefore, we remand this matter for the sole determination whether the terms of the custody Order are in conflict with the PFA Order requiring a specific suspension or supersedance of the custody Order by the PFA to avoid conflict and continuing litigation over this issue.

Order affirmed. Case remanded for consideration in conformance with this Opinion.

Jurisdiction relinquished.

      . Although the Order in question spells appellant’s name Awman, the appellant’s brief spells it Alman.

      . Because neither party has seen fit to provide this Court with a copy of this Order and one is not included in the record, we are unaware of its terms and/or conditions.

      . Once again we note with disfavor the parties’ failure to include a transcript of this hearing. Accordingly, and because neither party contests its accuracy, we rely on the trial court opinion for a recitation of the facts and summation of testimony.

      . See footnote 3.


author: ROWLEY, President Judge:

text:
    621 A.2d 146
    COMMONWEALTH of Pennsylvania v. Susan Lee FULMER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1992.
    Filed March 3, 1993.

      John G. Harshman, Warrendale, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   ROWLEY, President Judge:

Susan Lee Fulmer (hereinafter “appellant”) appeals from an order dismissing her statutory appeal and upholding her conviction for violating § 3345(a) of the Pennsylvania Motor Vehicle Code. Appellant claims that the trial court erred in the following three particulars: (1) it committed an error of law in failing to require the Commonwealth to follow the citation filing procedure delineated in § 3345(a.l) of the Pennsylvania Motor Vehicle Code; (2) it erred as a matter of law by improperly admitting into evidence, over appellant’s timely objection, hearsay testimony regarding allegedly self-ineriminating statements made by her at her summary trial; and (3) it abused its discretion by improperly questioning appellant as to factual matters while she was attempting to conduct pro se cross-examination of a Commonwealth witness despite the fact that she had exercised her constitutional right not to take the stand on her own behalf. After careful review, we reverse the trial court’s order and discharge appellant.

On October 17, 1991, at approximately 3:15 p.m., appellant, a school teacher, is alleged to have overtaken a school bus, driven by one Dawn Wolslayer, while its flashing red lights and stop signal arm were activated at a school bus stop. The bus operator did not see the driver of the car which overtook the bus nor could she identify the car’s color. However, she testified at trial that she had seen three of the digits on the car’s license plate.

On October 18, 1991, the bus operator received a note from the mother of one of her passengers which identified appellant as the driver of the car which had overtaken Wolslayer’s bus on the previous day. Wolslayer gave this information to her supervisor, who in turn verbally communicated it to Officer William Leo of the Hampton Township Police Department. Officer Leo testified at trial that he conducted an investigation and then issued a citation.

On November 20, 1991, appellant was found guilty by District Justice Regis Welsh and she filed a timely pro se appeal. A de novo trial before the Honorable Judge R. Scheib was then held, in which appellant was again adjudged guilty of violating § 3345(a). A fine was imposed. On February 4, 1992, appellant filed a timely post-trial motion in arrest of judgment, which was dismissed following argument. This timely appeal followed.

To our knowledge, the issue of whether section 3345(a.l) of the Motor Vehicle Code requires a police officer to file a school bus operator’s report with a copy of the citation when the officer first learns of the alleged violation from a school bus operator has not previously been reviewed by this Court. The statute at issue in this case, describing the procedure by which a citation should be issued for a violation of § 3345(a), provides, in pertinent part, as follows:

(a.l) Reports by school bus operators—
(1) The operator of a school bus who observes a violation of subsection (a) may prepare a signed, written report which indicates that a violation has occurred. To the extent possible, the report shall include the following information:
(i) Information, if any, pertaining to the identity of the alleged violator.
(ii) The license number and color of the vehicle involved in the violation.
(in) The time and approximate location at which the violation occurred.
(iv) Identification of the vehicle as automobile, station wagon, motor truck, motor bus, motor cycle or other type of vehicle.
(2) Within 48 hours after the violation occurs, the school bus operator shall deliver a copy of the report to a police officer having authority to exercise police power in the area where the violation occurred. If the police officer believes that the report establishes a sufficient basis for the issuance of a citation, the officer shall file a citation and the report with the issuing authority.
(3) A person may institute a proceeding pursuant to this subsection or in accordance with any means authorized by the Rules of Criminal Procedure.

75 Pa.C.S.A. § 3345(a) and (a.l) (emphasis added).

Appellant argues that the plain meaning of the above-quoted statute requires that whenever a police officer learns of an alleged violation of § 3345(a) through the report of a school bus driver, as opposed to any other person, the report must be filed with the citation because otherwise, the purpose of the statute would be frustrated. In support of her argumerit, appellant has cited a case decided by the Jefferson County Court of Common Pleas, Commonwealth v. Charles, 6 Pa.D. & C. 4th 255 (1990), in which it was held, under facts very similar to those in the instant case, that “when the process is initiated by the report of a school bus operator, such report must be filed with the citation since [§ ]3345(a.l) indicates that the report ‘shall’ be filed with the citation.” Id. at 258-259 (emphasis added). While the legal authority cited by appellant is not binding on us, we find it most persuasive.

Although the Commonwealth argues that the procedure of filing a written report with the citation is discretionary because the statute opens by stating that a school bus driver who observes a violation “may” prepare a signed, written report indicating occurrence of the violation, our reading of the statute compels us to the same conclusion reached in Charles. The statute, when read in its entirety, indicates to us that the procedure by which the operator of a school bus must relay information to the proper authorities is mandatory. The legislature’s use of the word “may” in this statute should be read to mean simply that a school bus operator who observes a violation has the initial discretion as to whether or not to act on the violation, but that if he or she does choose to act in a manner consistent with bringing the violator to justice, he or she has no discretion in the manner in which he or she communicates the information upon which the violation is based to the proper authorities.

Therefore, we now hold that a school bus driver who initiates legal action against the violator of § 3345(a) must do so by filing a signed, written report which includes the information enumerated in sub-sections (i) through (iv) of § 3345(a.l). Furthermore, as noted by the court in Charles, “[t]here is no indication within the plain meaning of the statute that the police officer is given the discretion to decide whether or not to file the report with the citation.” Id. at 259. Put simply, “[i]f the police officer believes that the [bus driver’s] report establishes a sufficient basis for the issuance of a citation, the officer shall file a citation and the report with the issuing authority.” 75 Pa.C.S.A. § 3345(a.l) (emphasis added).

Having decided that the Commonwealth failed to follow the required procedure for filing appellant’s citation in the instant case, we need not reach the other two issues raised by appellant in this case. Accordingly, we are constrained to reverse the trial court’s order dismissing appellant’s motion in arrest of judgment and affirming her summary conviction of 75 Pa.C.S.A. § 3345(a).

Order reversed, citation dismissed, and appellant discharged.

      . 75 Pa.C.S.A. § 3345(a), Meeting or Overtaking School Bus.

      . Appellant asserts, and we agree, that the statute was enacted to balance the state’s need for apprehending persons suspected of violating § 3345(a) against the potential for abuse or mischief occasioned by permitting other drivers, pedestrians, and/or neighbors to give hearsay reports which form the basis for a school bus operator’s communication of the event to the proper citation-issuing authorities.


author: POPOVICH, Judge:

text:
    621 A.2d 148
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert TILLMAN, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1993.
    Filed March 4, 1993.

      Ronald Eisenberg, Deputy Dist. Atty., Philadelphia, for Com., appellant.
    Robert Tillman, pro se.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth of Pennsylvania from the order of the Court of Common Pleas of Philadelphia County which granted appellee’s motion to suppress. We reverse the suppression order entered below and remand for trial.

When passing on a challenge to the decision of the suppression court, we are limited primarily to question of law, and we are bound by the suppression court’s findings of fact, provided those findings are supported by the record. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Marconi, 408 Pa.Super. 601, 607-08, 597 A.2d 616, 619 (1991); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989). Instantly, the lower court summarized the facts in its opinion, as follows:

The Notes of Testimony reveal that Police Officer Smith and his partner were on routine patrol, in uniform, in a marked patrol wagon. As they approached the corner of Cumberland and Newkirk, Officer Smith testified that he saw the defendant drop a container to the ground. The defendant had his back to the police vehicle. He was standing with a woman and another male. (See, N.T., December 5, 1991, p. 7-8). The defendant and the other two individuals began to walk away. Officer Smith exited the police vehicle and picked up the container and observed that there were 15 clear vials [containing a white chunky substance] inside of it. (N.T., December 5, 1991, p. 10). Meanwhile, Officer Smith’s partner pursued the defendant, stopped him, and brought him back to the scene, The defendant did not run. (See, N.T., December 5, 1991, pp. 10, 14-16). The defendant was then placed under arrest.

Trial Court Opinion, p. 2.

The record also reveals the following undisputed evidence: Appellee dropped the container containing the vials of cocaine after seeing the police. (N.T., 12/5/91, p. 7). At the time appellee discarded the container, the police officers were twenty to thirty feet away from appellee and his companion, and the officers were still inside their moving, police vehicle. (N.T., 12/5/91, pp. 8, 9).

In deciding to suppress the controlled substance, the lower court applied the doctrine of forced abandonment, reasoning the the police “forced” appellee to abandon the cocaine through their illegal seizure of him. The lower court relied primarily upon our supreme court’s decision in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), and our recent decision in Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991), allocatur denied, 530 Pa. 653, 608 A.2d 29 (1992). While we agree that Jeffries, supra, and its progeny are controlling, we find that the lower court erred in its application of the doctrine of forced abandonment.

“It is axiomatic that a defendant has no standing to contest the search and seizure of items which he has voluntarily abandoned.” Commonwealth v. Bennett, 412 Pa.Super. 603, 607, 604 A.2d 276, 278 (1992), quoting Commonwealth v. Windell, 365 Pa.Super. 392, 398, 529 A.2d 1115, 1117 (1987). “Although abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action.” Jeffries, 311 A.2d at 918, quoting Commonwealth v. Pollard, 450 Pa. 138, 143, 299 A.2d 233, 236 (1973). See also, Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980); Bennett, 604 A.2d at 278.

Thus, the question we now face is whether appellee’s act of dropping the container was the product of illegal police conduct. We will assume, as did the court below, that appellee was detained by Officer Smith’s partner before Officer Smith actually saw the individual vials of cocaine inside the container which appellee tossed to the ground. We note, although the lower court concluded that Officer Smith’s partner detained appellee before Officer Smith observed the vials of cocaine inside the container, the record is at best unclear as to the timing of the seizure of appellee, relative to Officer Smith’s seizure of the controlled substance. In fact, the record actually supports the conclusion that Officer Smith seized the cocaine prior to his partner’s detention of appellee. (N.T., 12/5/91, pp. 9, 10). However, for the purposes of our decision here today, it does not matter whether appellee was seized .prior to or after Officer Smith confirmed that the container contained cocaine. See discussion, infra, of Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989), appeal dismissed, 526 Pa. 41, 584 A.2d 308 (1991).

It is undisputed that the officers did not have “reasonable suspicion” to detain appellee prior to finding cocaine inside the container which he dropped. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Martinez, supra. Thus, the lower court, citing Jeffries, supra, found that appellee was coerced into abandoning the contraband and, therefore, the physical evidence had to be suppressed as “fruit of the poisonous tree”.

We disagree with the lower court’s conclusion. The evidence in question was abandoned before the police officers showed any interest in appellee or his companions. Only after witnessing appellee tossing the container to the ground and appellee and his companions dispersing, did Officer Smith exit his vehicle and seize the container. There is absolutely no evidence to suggest that the police in any manner coerced appellee into abandoning the container containing the controlled substance. See, Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977) (where police patrolling an area known for narcotics trafficking made a u-turn and double-parked their vehicle after observing three individuals, and where as the officers approach the individuals and were about ten feet away, defendant dropped white tissue ball containing heroin, police action was noncoercive encounter and heroin was admissible). We conclude that the Fourth Amendment was not implicated presently by the officer’s conduct. Compare, Jeffries, supra (evidence suppressed where defendant abandoned contraband while being chased by police who had no reasonable belief criminal activity was afoot) with Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989) (police officer’s parking on sidewalk next to defendant’s vehicle, combined with partner’s walking quickly towards defendant constituted a noncoercive encounter and therefore did not trigger Fourth Amendment protections).

Finally, even if we assume the seizure of appellee prior to observing the contraband was illegal, the evidence is not subject to suppression. “Suppression of evidence is not available as a remedy for unlawful police conduct where the evidence was obtained by means independent of the unlawful police conduct. See, Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985).” Reviera, 563 A.2d at 1257. Since the evidence was seized independently of any unlawful police conduct, i.e., it was abandoned prior to the police showing any interest in appellee, we cannot regard the seizure of the cocaine was the product of an illegal arrest. See, Reviera, supra (evidence was admissible where evidence was obtained pursuant to a valid search warrant, despite illegal arrest prior to the search).

Order reversed. Case remanded for trial.

      . The Commonwealth has certified that the lower court’s order granting appellee’s motion to suppress physical evidence, effectively terminates the prosecution of this case, and, therefore, this appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . We note that we need not address the Commonwealth’s argument related to California v. Hodari, - U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).


author: BECK, Judge:

text:
    621 A.2d 151
    1230 ARCH STREET REALTY CORP., Appellant, v. Thomas W. SHERWOOD, Individually and T/A Sherwood Investments and Triester, Rossman and Associates and Bernard Rossman and U.S. Fidelity and Guaranty Co.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed March 4, 1993.

      Joel E. Oshtry, Norman A. Oshtry, Philadelphia, for appellant.
    John R. O’Donnell, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge:

The issue is whether the trial court properly allowed a judgment debtor to file a bond and dissolve a judgment creditor’s attachment against the debtor’s bank. We hold that the trial court erred in allowing the dissolution of the attachment after a final judgment against the garnishee bank, and therefore reverse and vacate the order below. We remand for reinstatement of the judgment and attachment so that execution against the bank account may proceed.

On or about August 2, 1989, plaintiff-appellant 1230 Arch Street Realty Corporation filed a complaint against several defendants, including defendants-appellees Triester, Rossman & Associates and Bernard Rossman. Appellees were served with the complaint on August 14, 1989. Appellee Bernard Rossman requested and received an extension of time until September 15, 1989 to answer the complaint. On September 18, 1989, appellant filed and served a “10-day notice” of intent to take default judgment against appellees, because no responsive pleading had been filed on their behalf. Pa.R.Civ.P. 237.1. On January 23, 1990, appellant filed a praecipe for entry of judgment against appellees, and default judgment was entered against them in the amount of $16,630.20.

On April 6, 1990, John R. O’Donnell, Esquire entered his appearance on behalf of appellees, and filed a “Motion to Open Default Judgment” on April 11, 1990. After depositions and a hearing, an order was entered denying the appellees’ motion on August 13, 1990. Appellees timely filed an appeal to this court, but later withdrew their appeal. The default judgment then became final.

Appellant began execution proceedings. Appellant filed a praecipe for writ of attachment and issued a writ of execution in attachment to Royal Bank of Pennsylvania (“Royal Bank”), in the amount of $18,313.01. The garnishee Royal Bank filed answers to interrogatories in attachment, in which it admitted that it held a demand deposit account owned by Triester, Rossman & Associates, and that the balance in the account was $66,090.89. The garnishee’s answers indicated that Royal Bank would hold $18,313.01 of this amount as per the writ of attachment. On or about May 28, 1991, appellant filed a praecipe for entry of judgment upon admission against garnish ee Royal Bank in the sum of $18,313.01. Pa.R.Civ.P. 3146(b). Although appellant could have at this time proceeded to execute upon the garnished sum (Pa.R.Civ.P. 3148(b)), no further execution proceedings appear on the docket.

On or about October 21, 1991, appellees filed a “Petition for Substitution of Bond.” Through this petition, appellees sought to dissolve the attachment against the garnishee bank and “replace” it with a bond in the amount of $23,000 “in favor of and for the protection of the Royal Bank of Pennsylvania.” In the petition, appellees’ lawyer averred that the attachment against the Triester, Rossman bank account “significantly hampered [appellees’] ability to do business,” and because “defense counsel conceeds [sic] that the liability creating conduct was his own mistake rather than that of his client, the onus of financial burden should fall on him rather than the innocent [appellees].”

On December 4, 1991, Judge Diaz ordered that appellees could file the “substitution bond” in the amount of $23,000, and the attachment against garnishee Royal Bank was dissolved. This was error. The trial judge based his decision on Rule 3149(4), which authorizes the court “on the petition of any person or party” to permit the “substitution of a bond or security and enter exoneration of a prior bond.” Judge Diaz indicates in his opinion that “the bond purchased by Zarwin & Baum, P.C. [appellees’ lawyers] was substituted for the initial bond purchased by Triester, Rossman & Associates.” Tr. Ct. Opinion at 2. This statement belies some confusion on the part of the trial judge. This was not a case of substituting one form of security for another, as is envisioned in Rule 3149. There never was an “initial bond purchased” by appellees. Rather, there was a garnishment of their bank account, based upon a final judgment which was ripe for execution. Rule 3149 is inapplicable here.

Nor does Rule 3143 help the appellees. The rule provides in part:

(b)(1) An attachment is dissolved when any person or party files with the prothonotary a bond, with security approved by the prothonotary, in the amount of the plaintiffs judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, conditioned to pay the plaintiff the amount finally determined to be due by the garnishee or the value of the property whichever is less....
(2) Upon the filing of the bond or security, the garnishee shall be discharged from further liability for payment under the attachment, but the attachment shall be prosecuted to final judgment for the purpose of determining the amount, if any, due by the garnishee to the defendant or the value of the property attached....

Pa.R.Civ.P. 3143(b) (emphasis added). It is clear that Rule 3143 allows dissolution of an attachment on the filing of a bond only where there is some dispute as to the property held by the garnishee or its value, and when, as a consequence, there will be ongoing litigation between the judgment creditor and the garnishee during which the garnishee’s funds may otherwise be held hostage.

Here, the garnishee bank admitted in its answers to interrogatories that it holds an account belonging to appellees, in a precise amount. The bank was therefore subject to judgment upon admission (Pa.R.Civ.P. 3146(b)) and execution. Pa. R.Civ.P. 3148(b). The provisions for dissolution and substitution in Rule 3143 are applicable only to situations where litigation is proceeding on the merits of the garnishment action. See, e.g., Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101, 403 A.2d 113 (1979) (petition to intervene and petition to dissolve attachment were filed by secured third party prior to garnishee filing answer to interrogatories in attachment). This is not the case here. The garnishment action has been prosecuted to judgment and the underlying default judgment was final long ago. Although appellees believe that they should have another opportunity to argue the merits of the underlying default judgment, and improperly do so argue in their brief to this court, they waived such opportunity by withdrawing their appeal from the order denying their petition to open the default judgment. It simply is too late to complain about the amount or finality of that judgment now.

Order vacated with instructions to reinstate attachment against garnishee in the amount of $18,313.01, plus interest from December 4,1991, and for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . This amount includes the sum pleaded in the complaint plus court costs and interest as computed by the prothonotary. Pa.R.Civ.P. 1037.

      . This amount includes interest from January 23, 1991 and additional costs.

      . This may have been because appellees apparently filed a Petition for Stay of Execution and for Modification of Judgment on May 23, 1991. Not only was this petition improper, since the default judgment was final, but its filing does not appear on the docket. Nevertheless, Judge Maier set a hearing for May 31, 1991, with all proceedings to stay meanwhile. Although a hearing apparently was held as scheduled, Judge Maier never ruled on the petition.

      . Appellees make this specious argument despite the fact that they concede the default judgment is final. Appellees ’ Brief at 11. We fail to see how "the judgment entered is final [but] the amount remains in dispute.” Id. at 12.

      . Contrary to appellees’ disingenuous assertion, these issues are not "pending before Judge Maier.” Appellees’ Brief at 11. Instead, all issues related to the default judgment have been finally determined. Accordingly appellees' Motion for Stay of Execution and Modification of Judgment must be dismissed as moot.


text:
    621 A.2d 153
    COMMONWEALTH of Pennsylvania v. Theresa SPENCER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1993.
    Filed March 5, 1993.
    Donald E. Havens, Darby, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.

      Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Delaware County, following appellant’s conviction by a jury on charges of possession of a controlled substance (cocaine) and criminal conspiracy. Herein, appellant contends that the evidence was insufficient to sustain her conviction. We agree and, accordingly, reverse the decision of the court below and vacate appellant’s judgment of sentence.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). See also Commonwealth v. Stembridge, 397 Pa.Super. 1, 8, 579 A.2d 901, 905 (1990), allocatur denied, 527 Pa. 665, 593 A.2d 841 (1991); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 553-55, 488 A.2d 29, 31-32 (1985). As set forth by the trial court, the record reveals the' following facts:

The [appellant], Theresa Spencer, was a passenger in a Lincoln Town Car driven by George Farrell during the early morning hours of October 2, 1991. The car was observed by Officer George Rhoades, Jr. of the Upper Darby Township Police Department as it was exiting the Barclay Square Apartments onto Garrett Road. At that point, Officer Rhoades saw the car headlights go off and the vehicle begin to back down the entrance to the apartment complex. Officer Rhoades then followed the vehicle into the parking lot and pulled up behind it. (See N.T. 1/15/92 p. 11-12). The driver opened the car door and when the interior car light went on, Officer Rhoades observed that, in addition to the driver, the car also contained a female passenger. (See N.T. 1/15/92 p. 12-13). The driver exited the vehicle. As he approached the driver, Officer Rhoades observed a clear plastic bag containing a white substance emerging from the armrest storage compartment on the driver’s side door. This substance was later found to be cocaine. (See N.T. 1/15/92 p. 28). A scuffle ensued between Officer Rhoades and the driver ending with the driver fleeing in his car with Officer Rhoades in pursuit. This chase ended on Lasher Road, a residential street in Upper Darby Township, where the vehicle finally came to rest after hitting a parked car, a stone wall, and a telephone pole. (See N.T. 1/15/92 p. 17-18). The driver threw the plastic bag out of the car and attempted to flee. He and the passenger were both apprehended by the police officers on the scene.

Trial Court Opinion, p. 1-2.

In denying appellant’s post-verdict motion challenging the sufficiency of the evidence, the lower court found that the evidence was sufficient to support the jury’s determination that appellant had “constructive possession” of the cocaine found in the compartment on the driver’s door.

Our supreme court has commented upon “constructive possession” as follows:

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983).... To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).

Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). See also Stembridge, 579 A.2d at 903; Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 391, 539 A.2d 849, 851 (1988); Commonwealth v. Juliano, 340 Pa.Super. 501, 504-06, 490 A.2d 891, 893-894 (1985).

It is important to note that “[g]uilt by association is unacceptable.” Juliano, 490 A.2d at 894, quoting Fortune, 318 A.2d at 328. Further, “mere presence of one person, among a group at a scene of contraband, is not a strong factor indicative of guilt.” Juliano, 490 A.2d at 894, quoting Commonwealth v. Cash, 240 Pa.Super. 123, 125, 367 A.2d 726, 727 (1976). See also, Stembridge, 579 A.2d at 903.

Instantly, it is clear that George Farrell possessed the cocaine; the contraband was stored in the arm rest compartment of the driver’s side door; he was the driver of the car; when told to place his hands on the trunk of the car, he struck the officer and fled; and after the crash, he tossed the cocaine away from the vehicle and again attempted to flee.

However, it does not automatically follow that appellant also possessed the cocaine. There is no evidence of record which indicates that appellant exercised “conscious dominion” over the cocaine. In fact, there is no evidence to indicate that appellant knew, before Officer Rhoades stopped the car, that cocaine was present therein, except for Officer Rhoades’ speculation that he believed appellant could see the glassine baggie of cocaine protruding from the arm rest compartment before George Farrell exited the vehicle.

This case is similar to that of Juliano, supra, where police officers searched the car in which the defendant and three others were passengers and seized a satchel found on the floor in front of the seat which had been occupied by the defendant. The satchel contained counterfeit controlled substance, and the defendant was convicted on drug charges. However, we reversed his conviction, noting that there was no evidence, such as furtive movements or an attempt to escape, from which it could be inferred that appellant knew of the contents of the satchel. Juliano, 490 A.2d at 894.

In comparison, we found that the evidence in Stembridge, supra, was sufficient to sustain a finding of constructive possession. Therein, the defendant’s access to the area where the contraband was found was greater than that of the driver of the car and the other passenger. In addition, the defendant was observed “fidgeting around” after he had exited the vehicle. Presently, it is arguable that appellant had access to the area where the drugs were stored. However, the record simply does not demonstrate that she knew there were drugs within the car, and, absent such evidence, her conviction cannot stand. Juliano, supra. Compare, Cruz Ortega, supra (sufficient evidence of constructive possession, where: defendant, even though the passenger, had equal control and access over car, given the fact that glove compartment of rented car contained a money order purchased by defendant; cocaine was found under defendant’s seat; and before police stopped vehicle, defendant was observed leaning over seat).

In conclusion, when we view the evidence in a light most favorable to the Commonwealth, we find that the evidence was insufficient to establish beyond a reasonable doubt appellant’s constructive possession of the cocaine. The evidence failed to establish that appellant knew cocaine was present in the vehicle and that she intended to exercise control over the contraband. It appears that appellant’s guilt was proven by her mere association with George Farrell, and such a verdict is unacceptable.

Judgment of sentence vacated; appellant discharged.

      . Appellant presented photographs which displayed a person of similar size to George Farrell seated on the driver’s side of a Lincoln Town Car. The photograph supported appellant’s argument that she could not see the arm rest compartment from her vantage point. Officer Rhoades disputed the significance of the photograph on the grounds that the seat was further away from the steering wheel when he observed the car at the scene. However, the record establishes that Officer Rhoades never looked into the car from the passenger’s side while George Farrell, or anyone else, was seated in the driver’s seat.


author: HESTER, Judge:

text:
    621 A.2d 156
    Roy E. BALL, Sr. and Virginia L. Ball, Individually and as Administrators of the Estate of Roy E. Ball, Jr., a minor, deceased v. Jeffrey M. BARBER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed March 8, 1993.

      Gregory S. Olsavick, Altoona, for appellant.
    John P. Pietrovito, Muncy, for appellees.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

Jeffrey M. Barber appeals from the June 19, 1992 order denying his preliminary objections to the complaint filed in this action. He contends that the trial court erred in two respects: rejecting his allegations that it lacked personal jurisdiction over him due to improper service of initial process, and in determining that he waived his objection to jurisdiction. We affirm.

The record establishes the following. Appellees, Roy E. and Virginia L. Ball, individually and as administrators of the estate of their deceased son, Roy E. Ball, Jr., instituted this action on August 26, 1991, by praecipe for writ of summons against appellant. The writ was served personally on appellant’s mother, an adult individual, at her residence on Bridge Street in Roaring Branch, Pennsylvania. On October 21, 1991, an attorney entered an appearance on behalf of appellant. He then conducted discovery by obtaining Roy Jr.’s school records and aptitude test results.

On March 20, 1992, appellees filed their complaint, which contains the following allegations. On February 25, 1991, at approximately 9:00 p.m., Roy Jr., who was fifteen years old, was crossing the street at the intersection of State Route 14 and Route T-898 in Ralston, McIntyre Township. An automobile driven by Audrey Schanbacher was approaching the intersection, and she either slowed her car or stopped it to allow Roy Jr. to cross the street. Appellant was approaching the Schanbacher vehicle from the rear in a pick-up truck. Instead of stopping behind the car, he passed it by crossing over a double yellow center line into the lane of oncoming traffic. Appellant’s vehicle struck Roy and killed him.

On April 9, 1991, present counsel entered his appearance and filed preliminary objections, contending that appellant was not served properly at his mother’s address since he no longer resided with her when the writ was served. Appellees filed an answer to the preliminary objections. The following was established through discovery.

At the time that the writ was served upon appellant’s mother, Joanne Graham, both Graham and appellant received mail at P.O. Box 32, Roaring Branch, Pennsylvania. Appellant admitted that he gave this to the Pennsylvania Department of Transportation as his residence for purposes of his driver’s license and vehicle registration.

P.O. Box 32 actually was rented from the postal service only by Mrs. Graham. The service address that corresponded to the post office box number was Mrs. Graham’s residence. From 1988 until the time that he was deposed, appellant received through his mother’s post office box all mail regarding his driver’s license and registration at P.O. Box 32. Additionally, appellant’s federal and state tax forms and insurance information for his vehicle were mailed to P.O. Box 32 and received by him. Mrs. Graham gave appellant the writ of summons in this action, and he forwarded it to his insurer.

At the relevant time, however, appellant was sleeping in the home of his aunt and uncle. He did not pay rent but performed household chores for them. He slept on their sofa and kept the majority of his personal belongings there. He also received mail at that house. While appellant testified that he considered his home to be at Jamison Avenue, where his aunt and uncle resided, he never informed the Pennsylvania Department of Transportation of this fact.

75 Pa.C.S. § 1510(a) requires a driver’s license to contain a driver’s resident address. 75 Pa.C.S. § 1515 provides that a driver must notify the Pennsylvania Department of Transportation with written notice of any change in residence. In Miller v. Carr, 221 Pa.Super. 306, 292 A.2d 423 (1972), which is dispositive of the instant case, we held that service of process upon the defendant at the address listed on his driver’s license and vehicle registration constituted proper service despite the claim that the defendant did not reside at that address.

In the present case, appellant’s official address for purposes of 75 Pa.C.S. § 1510(a) was P.O. Box 32. The service address for that post office box was his mother’s residence at Bridge Street in Roaring Branch. Appellant admits that he resided with his mother prior to the relevant period. He never changed his resident address with the Pennsylvania Department of Transportation. Moreover, he actually received the writ of summons. He cannot now complain that service was defective.

Appellant’s reliance on Keller v. LaBarre, 225 Pa.Super. 504, 311 A.2d 683 (1973), and Frycklund v. Way, 410 Pa.Super. 347, 599 A.2d 1332 (1991), is misplaced. Neither case discusses whether service is proper at the unchanged resident address given under 75 Pa.C.S. § 1510(a). Further, in both cases, the uncontroverted facts established that the defendants no longer resided with their parents, upon whom service was perfected. In the present case, appellant admittedly continued to receive mail through his mother and kept some of his belongings at her house. Finally, neither Keller nor Frycklund discusses the issue raised herein, which is whether service is proper to the address given initially to the department of transportation by the defendant as his residence where the defendant has failed to comply with Pa.C.S. § 1515. In this case, we conclude that service on such address was proper.

We also concur in the trial court’s analysis of the waiver issue. Once a party takes action on the merits of a case, he waives his right to object to defective service of process. O’Barto v. Glossers Store, Inc., 228 Pa.Super. 201, 324 A.2d 474 (1974); compare Keller v. LaBarre, supra (where defendant rules plaintiff to file a complaint, objection to jurisdiction is not waived since that is not action on merits and jurisdiction can be raised only by preliminary objections to the complaint). In the present case, the record contains a notice of deposition filed by appellant relating to the decedent’s school records. Those records have no relevance to the issue of whether appellant was properly served and could have been requested only in connection with the merits of the damages portion of this action relating to damages. Thus, appellant waived his claim regarding improper service of process.

Order affirmed.

      . In accordance with Pa.R.A.P. 311(b)(1), appellees-plaintiffs filed, within ten days after entry of the order, an election that it be deemed final.


author: WIEAND, Judge:

text:
    621 A.2d 158
    Robert D. FISHER and E. Elizabeth Fisher, Natural Parents and Guardians of Donald T. Fisher, a minor, and Robert D. Fisher and E. Elizabeth Fisher in Their Own Right v. HARLEYSVILLE INSURANCE COMPANY, Selective Insurance Company of America, James W. Kennedy and Allstate Insurance Company Appeal of HARLEYSVILLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed March 8, 1993.

      Paul S. Goldman, Lancaster, for appellant.
    Michael W. Wagman, Lancaster, for Fisher, appellees.
    Joel D. Smith, Lancaster, for Selective Ins., appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

In this action for declaratory judgment, the trial court determined that Donald T. Fisher had been an “occupant” of a truck which had been owned by Timothy Wiker and insured by Harleysville Insurance Company (Harleysville). Therefore, the court entered summary judgment holding that Fisher was entitled to recover underinsured motorist benefits from Harleysville. Harleysville appealed. After careful review, we affirm.

On November 29, 1988, Fisher and his friend, Timothy Wiker, went deer hunting. At or about 1:00 p.m., they were driven to the hunting area in Wiker’s pickup truck by Fisher’s uncle, Harry Fisher. Later the same afternoon, the driver returned to the hunting area and waited for the hunters on the berm of the roadway. At or about 5:30 p.m., they emerged from the woods and approached the truck. Harry Fisher directed both hunters to unload their guns before entering the car and turned on the headlights so that they could see in the darkness. As the driver sat in the truck, with engine running, Donald Fisher unloaded his rifle in the glare of the headlights. Before he could retrieve all the shells, however, he was struck by an approaching vehicle operated by James W. Kennedy and insured by Allstate Insurance Company. As a consequence, Fisher sustained serious fractures of both legs. Allstate subsequently tendered to Fisher its policy limits of fifteen thousand ($15,000) dollars.

In the action for a declaratory judgment to determine liability for underinsured motorist benefits, both Harleysville and Selective Insurance Company (Selective) were named as defendants. Selective insured the claimant, Donald Fisher, through a policy covering his parents’ vehicles. Because the court determined that the claimant had been an occupant of the Wiker truck, it held that primary coverage for underinsured motorist benefits arose under the policy which had been issued by Harleysville. This was pursuant to 75 Pa.C.S. § 1733, which requires, in the case of multiple policies of insurance, that payment first be made from the policy “covering a motor vehicle occupied by the injured person at the time of the accident.”

A motion for summary judgment can only be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See: Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991); Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991); Mariscotti v. Tinari, 335 Pa.Super. 599, 601, 485 A.2d 56, 57 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983). The proper construction of a policy of insurance is a matter of law which may properly be resolved by a court pursuant to a motion for summary judgment. See: Steinbacher v. Page, 410 Pa.Super. 586, 588, 600 A.2d 608, 609 (1991); Vale Chem. Co. v. Hartford Accident & Indem. Co., 340 Pa.Super. 510, 516 n. 4, 490 A.2d 896, 899 n. 4 (1985), rev’d on other grounds, 512 Pa. 290, 516 A.2d 684 (1986).

In Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Pennsylvania Supreme Court adopted a four part test to determine whether a person not actually inside a vehicle can be found nevertheless to be an occupant of such vehicle. The Court said:

[W]e hold that when a person is engaged in the lawful use of an insured vehicle, he will be considered to be “occupying” that vehicle within the meaning of the policy, provided he can meet the following criteria:
(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Id. at 336, 473 A.2d at 1009, citing Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 334, 585 P.2d 157, 162 (1978).

In the instant case, the Wiker truck had been used to take Wiker and Fisher hunting and had returned to pick them up after dark. While Fisher was immediately in front of the truck, where he was engaged in unloading his rifle in preparation for entering the vehicle, he was struck by an approaching vehicle. At the time of the accident, Fisher was in close proximity to the truck. He was also truck oriented because he was making preparation to enter the same lawfully and carefully. Under the circumstances, moreover, there was a causal connection between the injuries which he sustained and the use of the truck. We conclude, therefore, that the trial court correctly determined that the insurer which provided coverage for the Wiker truck was primarily liable for payment of underinsured motorist benefits. Fisher was an occupant of the Wiker truck within the meaning of the Harleysville policy and the Motor Vehicle Financial Responsibility Law at 75 Pa.C.S. § 1733.

Affirmed.

      . It is provided by statute at 34 Pa.C.S. § 2503(a) that it is unlawful to have a loaded firearm in a vehicle.


author: DEL SOLE, Judge:

text:
    621 A.2d 160
    COMMONWEALTH of Pennsylvania v. John W. DIETZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1992.
    Filed March 8, 1993.

      William C. Dissinger, Marysville, for appellant.
    Daniel W. Stern, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence. Appellant, John W. Dietz, was fined and sentenced for violating § 1543(a) of the Vehicle Code. The sole issue raised by Appellant is whether the Commonwealth proved beyond a reasonable doubt that he had actual notice of the suspension of his operating privilege. After a thorough review of the record before us, we hold that the Commonwealth has met its evidentiary burden.

It is undisputed that notices of suspension were mailed to Appellant at the address attributed to him in the Pennsylvania Department of Transportation’s (“PennDOT’s”) files, R.D. 1, Lot 2, New Bloomfield, PA 17068. Appellant claims, however, that he did not reside at that address at the time the notices were sent. The Commonwealth rebuts that claim by arguing that if Appellant no longer resided there, under 75 Pa.C.S.A. 1515, he was under a statutorily imposed obligation to provide PennDOT with his new address within 15 days after he moved.

First, we find it necessary to address a point that was raised by the Appellant at his hearing, referred to by the trial court in its opinion and addressed by the parties in their briefs filed pursuant to this appeal. The record contains assertions that Appellant was “not a licensed [Pennsylvania] driver”. (R. 28a). Both sides attempt to use this unsubstantiated conclusion to their benefit. The Commonwealth claims that if Appellant was not a licensed driver, then he was not entitled to receive notice. The Appellant argues that as a non-licensed driver, he was not obligated to provide PennDOT with his new address.

After reviewing the record, and in particular, Appellant’s driving record, as it is set forth in the Commonwealth’s “Exhibit 1”, it appears as though Appellant did, at one time, possess a valid Pennsylvania operator’s license (License No. 22023398). Commonwealth’s “Exhibit 1”. The repeated references to whether or not Appellant ever had a license are therefore irrelevant.

The record also reveals that prior to the current offense, which occurred on, June 28, 1990, Appellant was cited for violating § 1543 of the Vehicle Code on three separate occasions. Commonwealth’s “Exhibit 1”. Those citations and the actions that PennDOT took as a result of the violations, were summarized during Appellant’s hearing as follows.

1. Privilege suspended for one year effective March 13, 1989. Official notice mailed March 13, 1989.
2. Privilege suspended for (1) year effective March 13, 1990. Official notice mailed March 20, 1989.
3. Privilege revoked for two (2) years effective March 13, 1996. Official notice mailed March 31, 1989. (R. 10a-lla).

(N.T. at 9-10).

Appellant correctly states that, when trying to prove receipt of actual notice, the Commonwealth cannot rest on the mere assertion that it mailed a notice to a defendant. See Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). This court has held however, that, “[w]hen notice is mailed to the appellant and additional evidence exists indicating that appellant received notice of suspension, then the evidence can be sufficient to prove actual notice.” Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621, 622 (1986) citing to Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982).

In the present case, the Commonwealth did not present any evidence to rebut Appellant’s claim that he never received notice of his suspension. We hold however, that the Commonwealth did produce sufficient additional evidence that Appellant had actual notice of the suspension. Accordingly, we affirm Appellant’s judgment of sentence and adopt the reasoning espoused by the trial court as set forth below.

While the Commonwealth did not prove beyond a reasonable doubt that Mr. Deitz received actual notice through the mail, the Commonwealth did present sufficient additional evidence to prove beyond a reasonable doubt the receipt of actual notice. First and foremost, Mr. Dietz was involved in . an automobile wreck which prompted Trooper Foltz to file a criminal complaint against Deitz for violation of § 1503(a) and § 6503 of the Vehicle Code. Mr. Dietz fled the crash scene on foot, leaving behind a trail of blood which led right to his home. Initially, Deitz stated to investigators that his wife was driving the vehicle. When Officer Foltz confronted Deitz, Deitz admitted that he was the driver. By fleeing the crash site and by misleading the investigators, Mr. Deitz demonstrated that he knew he was not permitted to drive. Secondly, Deitz’s driving record shows three driving under suspension and convictions and one driving without a valid license conviction since his license restoration in May, 1987. Mr. Deitz is not able to reapply for his license until March 13, 1988. That Mr. Deitz believed he was allowed to drive after being convicted four times is incredible.

(Trial Court Opinion dated January 7, 1992)

Furthermore, we hold that in order for a person to invoke the defense that there was no notice of the suspension or revocation of the license, at a minimum it must be established at trial, that a current driver’s license was produced at the time of the offense, or within 15 days thereafter, as provided for in 75 Pa.C.S.A. 1511. When the penalties of 75 Pa.C.S.A. 1532 have been applied, resulting in suspension or revocation of a driver’s license, under 75 Pa.C.S.A. 1540, the driver is required to surrender the license. The operating privileges cannot then be restored until expiration of the suspension/revocation period at which time one must reapply for a new driver’s license. 75 Pa.C.S.A. 1541. Therefore, it is logical to require of a driver who claims that no notice of a suspension was received, to at least prove possession of a current license at the time of the incident. Otherwise, a defendant’s failure to possess a current license is presumptive knowledge of suspension.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 1543(a) reads in pertinent part as follows:
      § 1543. Driving while operating privilege is suspended or revoked
      (a) Offense defined.—[A]ny person who drives a motor vehicle on any highway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.00.

      . 75 Pa.C.S.A. 1515 reads 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.

      . The record also reveals that on October 25, 1988, Appellant was convicted of violating § 1501(a) of the Vehicle Code. As a result of the conviction, his driving privileges were revoked for five (5) years, effective March 13, 1991. Commonwealth’s “Exhibit 1”.


text:
    621 A.2d 163
    Raymond B. RICCI and Dorothy L. Ricci, Appellants, v. CUISINE MANAGEMENT SERVICES, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed March 8, 1993.

      E. Keller Kline, III, Allentown, for appellants.
    Paul L. Zeigler, Camp Hill, for appellee.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal from an order of the trial court granting Appellee’s motion for judgment on the pleadings, dismissing Appellants’ writ of revival of judgment against it. On appeal, Appellants raise the following issues:

(1) Whether 42 Pa.C.S.A. § 5526 supercedes the Judicial Lien Law of 1947, which provides that a judgment lien must be revived against a terre tenant within five years of the indexing of the lien?
(2) Whether the Judicial Lien Law of 1947 denies a judgment creditor equal protection and due process of law under the Pennsylvania and United States Constitutions?
(3) Whether Olewine’s, Inc., a grantee of a deed in lieu of foreclosure, is an innocent purchaser for value?

The relevant facts are not in dispute. Appellants Raymond and Dorothy Ricci caused a judgment to be entered in Cumberland County in their favor against Cuisine Management Services, Inc. (Cuisine) on July 12, 1985. Mr. Ricci was the president of Cuisine and Mrs. Ricci was its secretary. The judgment effected a lien upon a parcel of real property which Cuisine owned in Cumberland County. Cuisine had mortgaged the land, and on August 8, 1988, transferred a deed in lieu of foreclosure to appellee Olewine’s, Inc. (Olewine’s). On December 7, 1990, more than five years after the entry of judgment, Appellants filed a Praecipe for writ of revival, naming Cuisine in the caption and directing that it be indexed against Olewine’s. Olewine’s moved for judgment on the pleadings, alleging that the five year statute of limitations barred the filing of the writ of revival. The trial court granted Olewine’s motion and appellants filed the instant appeal.

Under Pennsylvania Law, Olewine’s is a terre tenant. A terre tenant is one who becomes the owner of an interest in real estate after the lien of a judgment or mortgage has attached. Com. Dept. of Public Welfare v. Andrews, 338 Pa.Super. 211, 487 A.2d 929.

Appellants contend that 42 Pa.C.S.A. § 5526(1), which implements a five year statute of limitations, commences running from the date a terre tenant takes title to real estate encumbered by a judgment lien, and that § 5526(1) has superceded the Judgment Lien Law of 1947, 12 P.S. §§ 877-884.

Section 878 of the Judgment Lien Law of 1947 provides: Every judgment now or hereafter entered of record and indexed in any court of record in this Commonwealth shall be a lien upon all real property within the county where the judgment is entered, which at the time of the entry and indexing of the judgment is owned by the person against whom the judgment is entered, and shall, unless sooner discharged as provided by law, continue as a lien as to the defendant and all other persons for a period of five years from the date on which the judgment was entered, and no longer, unless the same is revised [revived] as hereinafter provided.

Section 879 of the Judgment Lien Law specifically deals with the statute of limitations as it applies to terre tenants:

The lien of a judgment may be revived by the indexing of (1) a judgment of revival by agreement between the plaintiff and defendant, or of (2) a writ of scire facias [now a writ of revival], if such judgment by agreement is entered of record in or such writ is issued out of the court in which the original judgment was entered within five years after the date on which the original judgment or the last preceding judgment of revival, as the case may be, was indexed: Provided, that if any interest in any part of the real property bound by the lien of the judgment has been acquired by a terre-tenant, then the lien of such judgment shall be revived as to such part of the real property only if the terre-tenant within the five year period, hereinbefore designated, joins in the agreement or is made a party to the scire facias proceedings, as the case may be ...

Therefore, under the Judgment Lien Act of 1947, where a terre tenant acquires property bound by a judgment lien, the judgment creditor must file a writ of revival within five years after the date on which the original judgment was indexed. Otherwise, the creditor cannot enforce the lien against the terre tenant.

Harris v. Holdi, 181 Pa.Super. 339, 124 A.2d 182 (1956) is consistent with this reasoning. In that case, the judgment creditor filed a writ of revival (then a scire facias), within five years from the indexing of the last judgment of revival but more than five years from the recording of the terre tenant’s deed. We held that the five year statute of limitations commenced running from the date of the last preceding judgment of revival, rather than from the date that the terre tenant recorded his deed. We stated that:

Under the Act it is only if, and when, a revival has been had solely against the judgment debtor at a time when there is a terre tenant’s deed of record, that there is any requirement that the terre tenant be joined within five years after the recording of his deed. In all other instances, including the present, the revival is effective if the praecipe for sci. fa. in which the terre tenant is joined as a party, is filed within the date of the last preceding judgment of revival.

Section 2(a) [1257] of the Judiciary Act Repealer Act (JARA) 42 P.S. § 20002(a) repealed the Judgment Lien Law “insofar as inconsistent with general rules prescribed pursuant to 42 Pa.C.S. § 1722(b).”

However, Section 3(b) of JARA, 42 P.S. § 20003(b) provides:

The specific repeals effected by section 2 are intended to eliminate obsolete, unnecessary or suspended statutory provisions. General rules promulgated pursuant to the Constitution of Pennsylvania and the Judicial Code in effect on the effective date of the repeal of a statute, shall prescribe the practice and procedure with respect to the enforcement of any right, remedy or immunity where the practice and procedure had been governed by the repealed statute on the date of its repeal. If no such general rules are in effect with respect to the repealed statute on the effective date of its repeal, the practice and procedure provided in the repealed statute shall continue in full force and effect, as part of the common law of the Commonwealth, until such general rules are promulgated ...

Thus, § 3(b) of JARA retains repealed statutory provisions if no general rules regarding practice and procedure were in effect at the time of the repeal. Despite Appellants’ argument to the contrary, no general rule of procedure has ever been promulgated regulating the duration and scope of judgment liens, and the Judgment Lien Law of 1947 continues as a part of the common law of Pennsylvania. Hertzog v. Jung, 363 Pa.Super. 439, 526 A.2d 425 (1987). See also Weaver v. Weaver, 413 Pa.Super. 382, 605 A.2d 410 (1992); and Allied Material Handling v. Agostini, 414 Pa.Super. 175, 606 A.2d 923 (1992). In Hertzog, we noted that Pa.R.C.P. 3025-3049 “deal primarily with the proper method for filing for revival of judgments; they do not alter the substantive rights of judgment creditors.” Thus, contrary to Appellants’ assertions, Rule 3025 and 42 PaC.S.A. § 5526 do not displace the practice and procedure of the Judgment Lien Law of 1947. Further, Rule 3025, which Appellants argue is a general rule displacing the prior law, itself provides that “for the substantive law governing the revival of judgments against defendants and terre tenants, see the Judgment Lien Law of 1947, 12 P.S. § 877 et seq.” This interpretation is consistent with the trial court’s observation that “courts have been unwilling to presume an intent ... to revise established practice as to lien revivals, upon which the assumed state of so many interests in land depends.”

In the instant case, the Appellants filed a writ of revival of a judgment against Olewine’s on December 7, 1990, more than five years after the original judgment was filed, on July 21, 1985. Under the applicable statute of limitations, the Appellants were required to file the writ of revival against the terre tenant either within five years after the original judgment was entered or the last preceding judgment of revival. Since there was no preceding revival, Appellants had to file the writ of revival within five years of the indexing of the judgment, which they did not do. Therefore, the statute of limitations bars Appellants from reviving the lien against the terre tenant, Olewine’s. Appellants’ sole remedy is against the original debtor, Cuisine, Inc.

The Appellants’ argument that the “variable time period” under which a judgment creditor can revive a judgment against a terre tenant under the Judgment Lien Law of 1947 is unconstitutional, is without merit. A judgment creditor may revive a judgment lien against a terre tenant as long as it is done within five years from the entry of judgment. If the judgment creditor revives the lien within the five year period, it is revived for an additional five years against the original debtor and subsequent terre tenants. Failure to timely revive causes the loss of the lien on all property owned by the debtor or conveyed by the debtor subject to the lien. A subsequent revival of the judgment doesn’t re-establish the lien on this conveyed property. Since a creditor has the ability to retain a lien by a timely revival, there are no constitutional violations.

Because we hold that the statute of limitations bars the appellants’ writ of revival of judgment against Olewine’s, it is unnecessary to address the issue of whether Olewine’s is an innocent purchaser. The order of the trial court is affirmed.

      . 42 Pa.C.S.A. provides:
      The following actions and proceedings must be commenced within five years:
      (1) An action for revival of a judgment lien or real property.
      (2) An action for specific performance of a contract for sale of real property or for damages for noncompliance therewith.
      (3) An action to enforce any equity of redemption or any implied or resulting trust as to real property.